                                                                        FILED 

                                                                    OCTOBER 13, 2015 

                                                                 In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 32176-2-III
                      Respondent,             )
                                              )
       v.                                     )
                                              )
SHARON LYNNE PROVOST,                         )        UNPUBLISHED OPINION
                                              )
                      Appellant.              )
                                                                                                           t

       KORSMO, J. -    Sharon Provost appeals her conviction for one count of first degree

animal cruelty, contending that her counsel provided ineffective assistance by failing to

request an instruction on the inferior degree offense of second degree animal cruelty.
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Because the inferior offense was not available under the facts of this case, we affinn.

                                         FACTS 

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       Ms. Provost originally was tried and convicted in 2011 of four counts of first 
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degree animal cruelty in the Adams County Superior Court involving four dead dogs

found on her property. On appeal, this court rejected her sufficiency of the evidence                      I
arguments, but nonetheless reversed the convictions and ordered a new trial due to the
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No. 32 I 76-2-III
State v. Provost


admission of evidence obtained by an invalid search warrant. State v. Provost, no.

30102-8-Ill.

       At the retrial, the trial judge dismissed three of the counts for insufficient

evidence, but permitted the remaining count to go to the jury. The defense argued that

the dog involved on that count had accidentally strangled itself with the chain used to

secure the animal. The jury, however, did convict Ms. Provost on that charge. I She

again appealed to this court.

                                        ANALYSIS

       The sole issue presented in this appeal is a contention that trial counsel rendered

ineffective assistance by failing to request an instruction on the inferior offense of second

degree animal cruelty. Counsel did not err because there was no factual basis for

instructing the jury on that offense.

       Well-settled standards apply to our review of the issue presented. The Sixth

Amendment to the United States Constitution guarantees the right to counsel. The

attorney must perform to the standards of the profession. Effectiveness of counsel is

judged by the two-prong standard of Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052,80 L. Ed. 2d 674 (1984). That test is whether or not (1) counsel's performance failed

to meet a standard of reasonableness, and (2) actual prejudice resulted from counsel's


       IShe also was convicted of the misdemeanor offense of confining animals in an
unsafe manner. She does not challenge that conviction.

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No. 32176-2-III
State v. Provost


failures. Id. at 690-692. In evaluating ineffectiveness claims, courts must be highly

deferential to counsel's decisions and there is a strong presumption that counsel

performed adequately. A strategic or tactical decision is not a basis for finding error. Id.

at 689-691. When a claim can be disposed of on one ground, a reviewing court need not

consider both Strickland prongs. State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726,

review denied, 162 Wn.2d 1007 (2007).

       By statute, either party in a criminal case is entitled to an instruction on an inferior

degree offense in appropriate circumstances. RCW 10.61.003. 2 These statutes are

among the oldest surviving in the Revised Code of Washington, having their genesis in

the Laws of 1854, § 123. In order to instruct on an inferior degree offense, there must be

a factual basis for believing that only the inferior crime was committed. State v.

Fernandez-Medina, 141 Wn.2d 448,455,6 P.3d 1150 (2000). This factual prong is not

established merely by the fact that the jury might disregard some of the evidence in the

case. "Instead, some evidence must be presented which affirmatively establishes the

defendant's theory on the lesser included offense before an instruction will be given."

State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990).

       First degree animal cruelty, as charged in this case, required proof that the

defendant intentionally "with criminal negligence, starves, dehydrates, or suffocates an



       2 Statutes also provide that parties are entitled to instructions on included offenses
and attempted crimes. RCW 10.61.006; .010.

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No. 32176-2-III
State v. Provost


animal and as a result" caused "death." RCW 16.52.205(2){b); see Clerk's Papers at 486.

Second degree animal cruelty is committed when, "under circumstances not amounting to

first degree animal cruelty, the person knowingly, recklessly, or with criminal negligence

inflicts unnecessary suffering or pain upon an animal." RCW 16.52.207(1).3

       Ms. Provost argues that because she did not intend to kill the dog, the jury could

have concluded that she merely mistreated the animal and, thus, convict her of second

degree animal cruelty. Her argument misapprehends both statutes. First degree animal

cruelty, as charged in this instance, required that the State establish Ms. Provost acted

intentionally and, thereby negligently caused the animal to die. The State was not

required to prove that Ms. Provost intended to kill the animal, but only that her

intentional actions negligently caused death. In contrast, second degree animal cruelty

required knowing, reckless, or negligent infliction of unnecessary suffering or pain, short

of committing first degree animal cruelty.

       The critical/act here is that the dog died. Because of that fact, there was no ability

for the jury to establish second degree animal cruelty to the exclusion of first degree

animal cruelty. Either Ms. Provost caused the dog's death (the State's version of the

case) or she did not (Ms. Provost's version of the case). The fact of the dog's death


        3 Other methods of committing second degree animal cruelty include failing to
provide for the animal or abandoning the animal. RCW 16.52.207(2), (3). The subsection
(l) alternative quoted above appears to be the best fit as a possible alternative to the
charged offense.

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No. 32176-2-111
State v. Provost


precluded the determination that Ms. Provost's behavior caused only suffering or pain.

Thus, there was no factual basis for finding that only second degree animal cruelty had

taken place. 4 Trial counsel understandably focused on the causation issue rather than

argue that his client had mistreated the animal, but had not killed it. 5




       4 Ms. Provost argues that the jury could have accepted her argument that she did
not cause death, but still mistreated the animal, thus entitling her to an instruction on
second degree animal cruelty. This argument simply is contrary to the meaning of the
factual prong as explained in Fernandez-Medina. There the court reaffirmed that the
factual prong requires the evidence to affirmatively show one crime was committed; a
factual showing does not arise from the failure to prove the greater offense. 141 Wn.2d at
455. Moreover, if the jury accepted the argument that she did not cause the death of the
animal, the jury would have had to acquit her, a far superior option than directing the jury
to consider a lesser offense because the State had failed to prove its case.
       5 It also is highly likely that defense counsel, having a somewhat sympathetic
elderly client and only one felony count remaining, tactically chose not to pursue an
included offense that would have required him to admit to his client's bad behavior.
Since we resolve this on the factual basis prong, we do not address this aspect of
Strickland. We do note, however, that the record of this case takes the matter outside of
the fact pattern of Crace v. Herzog, no. 13-35650 (9th Cir. Aug. 14,2015). In Crace,
submitted by Ms. Provost as additional authority, defense counsel admitted he did not
consider the possibility of a lesser included offense. Id. at 23. We have no similar record
here, nor does the record indicate Ms. Provost's desires on the matter. See RPC 1.2(a)
requiring counsel to abide by the client's desire concerning the objectives of
representation and requiring counsel to consult concerning the means. For all this record
indicates, Ms. Provost preferred an all or nothing outcome rather than conviction of a
lesser included offense that would likely leave her unable to possess other animals.



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No. 32176-2-III
State v. Provost


       Because an inferior degree instruction was not available under the facts of this

case as a matter of state law, counsel could not have erred in failing to request one. Ms.

Provost thus has not carried her burden of showing that counsel erred under the

Strickland standard. She therefore has not established that counsel performed                i

ineffectively.
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       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 





       Lawrence-Berrey, J.




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