State v. Provost

• Decision Date: 23 October 2012
• Docket Number: No. 30102-8-III,30102-8-III
• Citation: State v. Provost, No. 30102-8-III (Wash. App. Oct 23, 2012)
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. SHARON LYNNE PROVOST, Appellant.

STATE OF WASHINGTON, Respondent,

v.SHARON LYNNE PROVOST, Appellant.

No. 30102-8-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

Dated: October 23, 2012

UNPUBLISHED OPINION

Brown, J. • Sharon L. Provost appeals her convictions for four counts of first degree animal cruelty and two counts of confining domestic animals in an unsafe manner based on July 2008 events.The cruelty counts and one confining count are alleged to have first been observed at Ms. Provost's Smart Road property about one mile from her residence in Lind, Washington.The other confining count was later developed at her Lind residence based on a search warrant.She contends the trial court erred in denying her CrR 3.6 suppression motion, partly because of the lack of a nexus between the SmartRoad events and her Lind residence.Finally, she contends the evidence is insufficient to support the animal cruelty convictions and contained certain unfairly prejudicial evidence.

We conclude the trial court erred in deciding probable cause existed to search the Lind residence and allowing unfairly prejudicial evidence collected from that search to be cross-admissible at trial on the Smart Road counts.We conclude the trial court properly decided probable cause existed to search the Smart Road property and the evidence is sufficient to support the animal cruelty convictions.We dismiss the Lind-residence confining count.Because of the prejudicial effect of allowing the Lind-residence evidence, we vacate the remaining convictions and remand for a new trial.Accordingly, we do not reach Ms. Provost's other assignments of error and her statement of additional grounds for review mainly concerning ineffective assistance and sentencing.

FACTS

Considering our review standard, the facts are presented most favorably for the State and summarize similar information presented at trial and at the CrR 3.6 suppression hearing.On July 3, 2008, Adams County Deputy SheriffBenjamin Buriak received a dispatch call regarding an animal welfare concern at Ms. Provost's rural property on Smart Road.An unidentified woman had reported she saw several dead dogs and large amounts of garbage on the property when she visited there to look at dogs for sale.Deputy Buriak described his entry to the Smart Road property by and through an unsigned gate and a deteriorated fence surrounding 80 acres of pasture land.Deputy Buriak saw three shed buildings containing around 25 dogs, four were dead and later labeled A-D.Dog D had been chained and appeared to have hung itself over a wall.It was unclear how the dogs A-C died.The deceased dogs appeared to have been dead for some time.Deputy Buriak saw a 55-gallon plastic drum filled with water inside the fence line of one of the sheds, but little available food and water.The food and water dishes appeared dirty.Deputy Buriak saw dog fur, garbage, pieces of wood, old feces and old straw inside the sheds on the floors of the kennels.

Deputy Buriak left the Smart Road property and contacted Ms. Provost at her home on East Third Street in Lind, located about one mile away from the Smart Road property.Ms. Provost gave incriminating statements about the conditions and the dead dogs at Smart Road that were subject to an unappealed CrR 3.5 hearing.For example, Ms. Provost told Deputy Buriak she knew about the dog that had hung itself, but she did not have time to remove it.While at the Lind residence, Deputy Buriak heard dogs barking and scratching and recited he had learned from Deputy Daniel Verhey that in August 2007, the department had received and cleared an animal treatment complaint regarding Ms. Provost concerning her Lind residence.Deputy Buriak did not observe any mistreated animals at the Lind residence on July 3, 2008.

On July 9, 2008, Deputy Buriak obtained a search warrant for both of Ms. Provost's properties.The July 9 affidavit for a search warrant recited two and one-half pages of facts, mostly related to the Smart Road investigation.Deputy Buriak described his observations regarding the Smart Road property and Ms. Provost's incriminating statements regarding the Smart Road events.

Critical here, Deputy Buriak stated, "Sharon Provost is operating a puppy mill business from her residence" and the "Smart Rd." properties.Clerk's Papers(CP)at 37.Deputy Buriak related, "[d]uring the past year the Sheriff's office has received several complaints about Provost's treatment of her animals and those complaints have been investigated."Id.Deputy Buriak described but one investigation where Pet Rescue had relayed complaints of "unsuitable conditions" at the Lind residence that Deputy Verhey investigated in August 2007.Id.Then, Ms. Provost was warned to "clean up the area" and by September 6, 2007"the living conditions had improved."Id.Deputy Buriak stated he saw the sheds "where Deputy Verhey observed unsafe and unsanitary conditions during his visit" in August 2007. CPat 38.The sole remaining factual reference to the Lind residence was Deputy Buriak's statement: "At the Provost residence, I could hear numerous dogs in the sheds barking and scraping at the walls as I spoke to Provost."CPat 39.Regarding the Lind residence, Deputy Buriak concluded: "It is reasonable to believe the conditions of the kennels at Smart Rd. are similar to theones at her residence.This belief is further supported by my own observations when I contacted Provost at her residence."Id.

When the search warrant was executed at the Smart Road property on July 12, 2008, the four deceased dogs had been removed and there was more straw for the dogs.Some of the garbage had been picked up, but feces remained.Some food and water was accessible to the dogs.One bucket of water had dead mice floating in it.

Outside Ms. Provost's Lind home, deputies, with the assistance of Pet Rescue, found 93 live dogs in kennels made of wood and had metal roofs covered by tarps.Feces and old straw covered the ground and kennel floors, along with dog food and water dishes, some dirty.

Exhibit 55 depicted a mummified dog's carcass on the kitchen floor with maggots around the carcass.Exhibits 58 and 59 depicted a carcass of some form inside an enclosed shower in one of the bathrooms of the home.Scratch marks were visible on the walls of the shower, apparently where the animal had tried to escape.Exhibits 61 and 62 depicted a blue child's-type swimming pool sitting on top of a bed in one of the bedrooms.The swimming pool contained torn up newspaper and fecal matter.Exhibit 66 depicted a shoe on the ground with what appeared to be a dead mouse inside.Exhibit 67 depicted a picture of the toilet in one of the bathrooms filled with fecal matter.Exhibits 76 and 77 depicted a litter box with a mummified cat next to it in the basementof the home.Exhibit 79 depicted a pile of fecal matter on the floor of one of the rooms in the basement.The fecal matter had built up into a pile, apparently as a result of the door to the room being opened.Exhibit 81 depicted a large cardboard box, approximately four or five feet high, filled with animal fecal matter.

Deputy Verhey testified about his 2007 contacts with Ms. Provost.According to Deputy Verhey, several of the dogs were sleeping on top of fecal matter and very little, if any fresh straw or bedding was inside the kennels.Ms. Provost's trial counsel had unsuccessfully moved in limine under ER404(b) to exclude testimony of Deputy Verhey's observations and contact with Ms. Provost in August 2007.

Dr. William Grant, a forensic psychiatrist at Eastern State Hospital, testified he spoke with Ms. Provost on two occasions about her dogs; he related her explanations concerning the dead animals.

Nicole Montano of the Spokane County Regional Animal Protection Service testified as an animal welfare expert.In her opinion, the kennel conditions were poor and inadequate and posed severe health and safety risks to animals.

The State called Janet Bowman, the Treasurer for Adams County Pet Rescue, who assisted in the execution of the search warrant at Ms. Provost's properties.Ms. Bowman did not see any food in any of the kennels, but did see a couple of empty bags of dog food.

Ms. Provost testified and called three other witnesses.Ms. Provost testified she was 74 years old and had begun breeding Australian shepherds in 1996.She bred dogs to supplement her low income.She portrayed herself as well meaning, caring, and not negligent in the treatment of her dogs.Ms. Provost related she had fed and watered her dogs on July 3, but had not yet done the same at Smart Road.Generally, she gave innocent explanations concerning dogs A-D.Ms. Provost's witnesses generally supported her testimony.

Ms. Provost's counsel proposed and the court gave a jury instruction on the lesser included crime of second degree animal cruelty.Counsel did not request an instruction on economic distress, an affirmative defense to second degree animal cruelty, despite filing a notice of intent to use the defense at trial.Ms. Provost complains her trial counsel failed to cross-examine witnesses.

The jury found Ms. Provost guilty as charged.For the four counts of first degree animal cruelty, the court sentenced her as a first-time offender; she received zero days in total confinement with 12 months of community custody.Ms. Provost was sentenced to 60 days in jail for each misdemeanor, with all 120 days suspended.The court imposed an exceptional sentence, ordering her not to own, house, harbor or care for domestic animals such as dogs and cats for a period of 20 years.She appealed.

ANALYSIS

A.Evidence Suppression

Did the trial court err in denying Ms. Provost's CrR 3.6 suppression motion?She contends the trial court erred in going beyond the four corners of the affidavit for a search warrant and in taking witness testimony when she solely challenged the validity of the warrant.Further, Ms. Provost contends the court erred in concluding a nexus existed...