      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STATE OF WASHINGTON,
                                                   No. 74802-5-1
                     Respondent,
                                                  DIVISION ONE
       V.

KATHRYN ANNE ST. CLARE,                           PUBLISHED OPINION

                      Appellant                   FILED: March 27, 2017

       SPEARMAN, J. — Kathryn Anne St. Clare appeals her conviction of ten

counts of first degree cruelty to animals. She contends that the "to convict"

instruction misstated and lowered the State's burden of proof. She also contends

that the trial court committed reversible error in failing to give a unanimity

instruction. Finding no error, we affirm.

                                       FACTS

       In the spring and summer of 2014, Snohomish County animal control

officers responded to reports that animals were confined in inhumane conditions

in a trailer belonging to St. Clare. The officers visited several times and observed

conditions from outside the trailer. It was evident that St. Clare kept numerous

cats in the trailer and when St. Clare was not home the cats were locked inside.

On some visits, conditions appeared adequate and the cats did not seem
No. 74802-5-1/2

distressed. On other visits, more cats were visible, they appeared ill and

distressed, and conditions appeared unsanitary.

       Animal control officers searched the trailer pursuant to a warrant on July

11, 2014. They found 111 cats. The condition of individual cats varied, but as a

group, the cats were malnourished and dehydrated. Many of the cats had lost

hair and teeth. The feline leukemia virus, which is highly contagious, appeared to

have spread throughout the group. After examination, a veterinarian made the

decision to euthanize all of the cats.

       St. Clare was charged with ten counts of first degree cruelty to animals

under RCW 16.52.205(2), each count based on a separate cat. At trial, the

State's witnesses testified to the condition of the cats. Linda Beilfus, a neighbor

who had reported the trailer to animal control, testified that when she visited in

early July the trailer was parked in the sun. Through the windows, she could see

many cats confined inside. The cats were panting, listless, and appeared to be

starving. No food or water was visible.

       An animal control officer, Angela Rench, testified that when she contacted

St. Clare in June, there were 40 to 60 cats inside the trailer. The cats were

lethargic and many were emaciated. The trailer was parked in the sun. It

appeared that the cats had no food or water.

       Rench and other animal control officers testified to the search of the trailer

on July 11. The officers stated that the trailer was very hot, it smelled

overwhelmingly of cat urine, and the floor was covered in feces. The cats were




                                          2
No. 74802-5-1/3

panting and lethargic. There was no food or water in the trailer. The officers

made a video recording of the search. The officers testified that they impounded

the trailer and transported it to an animal shelter. At the shelter, the officers

removed the cats one by one for examination by a veterinarian.

       The veterinarian, Lisa Thompson, testified that she examined each of the

111 cats. The cats were malnourished and dehydrated to varying degrees.

Thompson stated that the number of underweight cats in the group indicated that

adequate food had not been provided. She testified that the number of

dehydrated cats indicated that the cats either had no access to water for a

significant period of time or only received water intermittently. Thompson also

testified to the conditions of the individual cats listed in the charges. Photos of the

individual cats and the video from the search of the trailer were admitted into

evidence.

       The jury convicted St. Clare as charged. She appeals.

                                    DISCUSSION

       St. Clare asserts that the trial court erred because the "to convict"

instruction was inadequate. The State contends that the instruction accurately

states the law and that St. Clare may not challenge the instruction for the first

time on appeal.

       Jury instructions are generally adequate if, when read as a whole, they

"properly inform the jury of the applicable law." State v. Mills, 154 Wn.2d 1, 7,

109 P.3d 415(2005)(quoting State v. Clausinq, 147 Wn.2d 620, 626, 56 P.3d



                                           3
No. 74802-5-1/4

550 (2002)). The adequacy of instructions is a question of law that this court

reviews de novo. Id. (citing State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000

(2003)). Because the State has the burden of proving each element of the crime

charged, an adequate "to convict" instruction must state each element of the

crime. State v. Fisher, 165 Wn.2d 727, 753, 202 P.3d 937(2009)(citing Mills,

154 Wn.2d at 7). The elements of the crime usually consist of the actus reus,

mens rea, and causation. Id. at 754. (citing BLACKS LAW DICTIONARY 559 (8th

ed.2004)).

       In general, a party may not raise an error for the first time on appeal. RAP

2.5(a). The policy underlying this rule is to encourage the parties to point out, at

trial, errors that the trial court may correct. State v. O'Hara, 167 Wn.2d 91, 98,

217 P.3d 756(2009)(citing State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492

(1988)). An exception exists for manifest errors that affect a constitutional right.

RAP 2.5(a)(3). To meet this exception, the appellant must show that the claim

"implicates a constitutional interest as compared to another form of trial error."

O'Hara, 167 Wn.2d at 98. Courts have found error affecting a constitutional right

where the "to convict" instruction shifts the burden of proof to the defendant or

omits an element of the crime charged. Id. at 100-01 (citations omitted). To raise

such a claim for the first time on appeal, the appellant must also demonstrate

that the error resulted in actual prejudice. Id. at 99 (citing State v. Kirkman, 159

Wn.2d 918, 935, 155 P.3d 125 (2007)).




                                          4
No. 74802-5-1/5

       In this case, St. Clare was charged with first degree cruelty to animals

under RCW 16.52.205(2). As relevant here, a person is guilty of that crime when

"he or she, with criminal negligence, starves, dehydrates, or suffocates an animal

and as a result causes:(a) Substantial and unjustifiable physical pain that

extends for a period sufficient to cause considerable suffering; ..." RCW

16.52.205(2).

       At trial, the State proposed jury instructions, including a "to convict"

instruction and an instruction defining criminal negligence. The trial court adopted

these with minor changes. St. Clare did not object to the instructions.

       The court instructed the jury that:

           To convict the defendant of the crime of animal cruelty in
       the first degree, as charged in [counts one through ten], each
       of the following elements of the crime must be proved beyond
       a reasonable doubt:
           (1) That the defendant acted by one or more of the
               following means or methods:
                   a. That [during the specific period of time], the
                      defendant starved [a particular cat];
                   b. That [during the specific period of time], the
                      defendant dehydrated [a particular cat];
           (2) The defendant acted with criminal negligence;
           (3) As a result, the animal suffered substantial and
               unjustifiable physical pain that extended for a period
               sufficient to cause considerable suffering; and
           (4) That the acts occurred in the State of Washington.

          If you find from the evidence that elements (2), (3), and (4),
       and either of alternative elements (1)(a) or (1)(b), have been
       proved beyond a reasonable doubt, then it will be your duty to
       return a verdict of guilty. To return a verdict of guilty, the jury
       need not be unanimous as to which of alternatives (1)(a) or
       (1)(b) has been proved beyond a reasonable doubt, as long as
       each juror finds that at least one alternative has been proved
       beyond a reasonable doubt.



                                             5
No. 74802-5-1/6

Clerk's Papers(CP) at 77-78.

       St. Clare contends that the "to convict" instruction misstated and lowered

the State's burden of proof. She also appears to assert that the "to convict"

instruction omitted an element of the crime charged. These arguments are

without merit.

       The "to convict" instruction states three times that the jury may only

convict if it finds that the State proved each element beyond a reasonable doubt.

The instruction does not misstate or lower the State's burden of proof. The

instruction sets out four numbered elements stating the specific act that must be

proven, the state of mind, the result of the act on the animals, and the location.

The instruction does not omit any element of the crime.

       However, St. Clare asserts that an inquiry from the jury demonstrates that

the instruction was confusing and failed to adequately convey the law. During

deliberations, the jury submitted an inquiry concerning the "to convict" instruction.

The jury referred to parts (1)(a) and (1)(b), where it states that the defendant

starved or dehydrated an animal, and asked:"Does the way these are worded

imply intent by the defendant?" CP at 67. After discussion with the parties, the

court responded that the referenced instructions "define the elements of each

crime which must be proven." CP at 67.

       St. Clare contends that the phrasing of the "to convict" instruction failed to

make clear the required mental state that applied to the act of starving or

dehydrating an animal. She argues that the jury may have found that she was

criminally negligent by some other act, and the State thus did not have to prove


                                          6
No. 74802-5-1/7

that she acted negligently by starving or dehydrating the animals. We reject this

argument.

       The instruction informed the jury that, to convict St. Clare, it had to find

that she starved or dehydrated the cats and that she acted with criminal

negligence. Although the inquiry gives evidence that the jury may have been

unsure of the mental state that attached to starving or dehydrating the cats, any

confusion heightened, rather than lowered, the State's burden of proof. If the jury

mistakenly believed that the first element implied intent, it found that St. Clare

starved or dehydrated the animals intentionally, rather than with criminal

negligence. St. Clare's argument that the jury may have found that she was

criminally negligent by some other act is speculative and unsupported by any

citation to the record. Moreover, even if the jury had made such a finding, it

would have been irrelevant, because it was in addition to finding that St. Clare

had starved or dehydrated the cats.

       We reject St. Clare's challenge to the "to convict" instruction. The

instruction includes each statutory element and correctly states the burden of

proof. If the phrasing was confusing, that confusion could have been corrected

through objection at trial. And because any possible misunderstanding of the

instruction only heightened the State's burden of proof, St. Clare fails to show

prejudice from the alleged error.

       St. Clare next argues that the trial court erred when it failed to instruct the

jury on unanimity. Relying on State v. Peterson, 174 Wn. App. 828, 851, 301

P.3d 1060 (2013), St. Clare argues that first degree animal cruelty is an


                                          7
No. 74802-5-1/8

alternative means crime that may be committed either by starving, dehydrating or

suffocating an anima1.1 St. Clare correctly points out that where a crime may be

committed by alternative means and the evidence is not sufficient as to each of

those means, a defendant has a right to "jury unanimity on the means by which

the defendant is found to have committed the crime." State v. Ortega-Martinez,

124 Wn.2d 702, 707, 881 P.2s 231 (1994)(citing State v. Green, 94 Wn.2d 216,

616 P.2d 628 (1980)). She also concedes, as she must, that if the evidence is

sufficient to support each of the alternative means submitted to the jury, no

particularized expression of unanimity is required because "we infer that the jury

rested its decision on a unanimous finding as to the means." Id. at 708 (citing

State v. Whitney, 108 Wn.2d 506, 739 P.2d 1150 (1987)).

        St. Clare was convicted of ten counts of cruelty to animals in the first

degree. She asserts that, in seven of the ten charges, the evidence was

insufficient as to one of the alternative means. She therefore contends that she

was entitled to an expression of jury unanimity as to the means by which she

committed the crime and the trial court's failure to instruct the jury on unanimity

was reversible error. But because we disagree that the evidence is insufficient as

to each of the means by which St. Clare is alleged to have committed the crimes,

we reject her argument.

        Evidence is sufficient to support a criminal conviction if, viewing the

evidence in the light most favorable to the State, a rational fact finder could have


       'The State asks us to reconsider our holding in Peterson that RCW 16.52.205(2) creates
alternative means of committing first degree animal cruelty. But in light of our disposition of this
case, we need not address that issue.


                                                 8
No. 74802-5-1/9

found the essential elements of the offense beyond a reasonable doubt. Green,

94 Wn.2d at 221. To convict St. Clare, the jury had to find beyond a reasonable

doubt that, acting with criminal negligence, she starved or dehydrated a particular

cat and thereby caused the cat to suffer "[s]ubstantial and unjustifiable physical

pain that extends for a period sufficient to cause considerable suffering." RCW

16.52.205(2). Whether an animal has suffered unjustifiably due to dehydration or

starvation is a matter of "ordinary experience which the jury could determine

without the aid of expert testimony. . . ." Peterson, 174 Wn. App. at 855.

       St. Clare contends that there was insufficient evidence to support the

alternative means of dehydration as to two of the charged cats, identified as cats

6 and 9. She asserts that the State failed to produce evidence that these specific

cats were in a dehydrated state. We disagree because, from the evidence in the

record, a reasonable juror could have concluded that the cats suffered

unjustifiably from a lack of water.

       The veterinarian, Thompson, testified that cats 6 and 9 were emaciated.

She did not testify as to the level of hydration of these two cats. But, speaking of

the cats as a group, Thompson stated that many of the cats were noticeably

dehydrated. She testified that, to account for the number of dehydrated cats in

the group, the cats either had no access to water for a significant period of time

or they only received water intermittently. Thompson stated that the heat and the

high level of ammonia in the trailer would both have exacerbated the cats' need

for water.




                                         9
No. 74802-5-1/10

       Beilfus and Rench also testified to the cats' lack of water. Beilfus stated

that the cats were confined to the trailer on a hot day, there was no water visible,

and the cats were panting. Rench testified that, during a June visit, the trailer was

parked in the sun, the cats were confined to the trailer with no water, and the cats

were listless. Rench stated that when she searched the trailer in July, the trailer

was extremely hot, the cats had no water, and the cats were lethargic and

panting. The jury viewed the video of the July search.

       Viewing this evidence in the light most favorable to the State, a rational

trier of fact could have found that St. Clare acted with criminal negligence in

dehydrating the cats, resulting in substantial and unjustifiable pain that caused

considerable suffering.

       St. Clare also argues that there was insufficient evidence to support

starvation as to cats 13, 17, 26, 55, and 81. She asserts that Thompson's

testimony establishes that these cats were only slightly underweight, not starving.

       Thompson described the cats' body condition using a score from one to

nine, with five representing a healthy weight. A body condition score of one

indicates severe emaciation, while a score of nine indicates obesity. Thompson

also evaluated the cats using a muscle condition score of one to three, with three

representing average muscle condition. She stated that an animal that receives

inadequate food breaks down muscle proteins to stay alive, suggesting a

correlation between poor muscle condition and inadequate nutrition.

       Thompson testified that cats 13, 17, 26, 55, and 81 each had a body

condition score of 4 and a muscle condition score of 2, indicating that they were


                                         10
No. 74802-5-1/11

mildly underweight and had poor muscle mass. Considering the number of

underweight cats in the entire group, Thompson stated that adequate food had

not been provided. Beilfus described the cats as "starving" and stated that, when

she visited the trailer, the cats had no food. Rench testified that, on her June and

July visits, no food was visible and the cats appeared emaciated. Rench and

other animal control officers stated that, when they searched the trailer in July,

the cats had no food. The jury viewed photos of the individual cats charged.

       From this evidence, a reasonable juror could have found that cats 13, 17,

26, 55, and 81 experienced considerable suffering due to lack of food. We

conclude that, regardless of whether RCW 16.52.205(2) establishes starvation

and dehydration as alternative means, the evidence was sufficient to support St.

Clare's conviction.

       St. Clare next asks that we decline to award costs of appeal to the State.

Appellate costs are awarded to the prevailing party unless this court directs

otherwise or "unless the commissioner or clerk determines an adult offender

does not have the current or likely future ability to pay such costs." RAP 14.2.

Where an offender has been found indigent by the trial court, that finding of

indigency remains in effect,... "unless the commissioner or clerk determines by a

preponderance of the evidence that the offender's financial circumstances have

significantly improved since the last determination of indigency." RAP 14.2.

       St. Clare was found indigent by the trial court. If the State has evidence

indicating that her financial circumstances have significantly improved since the




                                         11
No. 74802-5-1/12

trial court's finding, it may file a motion for costs with the commissioner. We

decline to rule on the issue of costs.

       St. Clare raises further arguments in a statement of additional grounds.

She contends that animal control officers were at least partly responsible for the

cats' dehydration because they did not provide the animals water and kept the

animals confined in the hot trailer until they were examined by the veterinarian.

St. Clare thus appears to challenge the sufficiency of the evidence supporting the

conclusion that she dehydrated the cats. Because this argument was raised by

counsel, we decline to consider it again.

       Finally, St. Clare asserts that the veterinarian did not euthanize the cats

because they were starving or dehydrated but because the shelter lacked

adequate resources to care for the cats. We decline to reach this argument

because it is immaterial to St. Clare's conviction.

       Affirmed.



                                                                      .............0




WE CONCUR:



     '---
      I it; c.Ls t•       A cd—



                                         12
                       State v. St. Clare, No. 74802-5-1


        Dwyer, J. (concurring) — I agree that the judgment should be affirmed. I

also agree that the crime of animal cruelty in the first degree is an alternative

means crime. However, because this court, in State v. Peterson, 174 Wn. App.

828, 301 P.3d 1060 (2013), misidentified the means by which the crime can be

committed, and because the majority opinion perpetuates the error, I find it

necessary to decline to join the majority opinion.

        In its entirety, former RCW 16.52.205 (2006)1 reads:

           (1) A person is guilty of animal cruelty in the first degree when,
       except as authorized in law, he or she intentionally (a) inflicts
       substantial pain on,(b) causes physical injury to, or (c) kills an
       animal by a means causing undue suffering, or forces a minor to
       inflict unnecessary pain, injury, or death on an animal.
           (2) A person is guilty of animal cruelty in the first degree when,
       except as authorized by law, he or she, with criminal negligence,
       starves, dehydrates, or suffocates an animal and as a result
       causes:(a) Substantial and unjustifiable physical pain that extends
       for a period sufficient to cause considerable suffering; or (b) death.
           (3) A person is guilty of animal cruelty in the first degree when
       he or she:
           (a) Knowingly engages in any sexual conduct or sexual contact
       with an animal;
           (b) Knowingly causes, aids, or abets another person to engage
       in any sexual conduct or sexual contact with an animal;
           (c) Knowingly permits any sexual conduct or sexual contact with
       an animal to be conducted on any premises under his or her charge
       or control;
           (d) Knowingly engages in, organizes, promotes, conducts,
       advertises, aids, abets, participates in as an observer, or performs
       any service in the furtherance of an act involving any sexual



        1 The quoted section is the wording of RCW 16.52.205 that was in effect at the time of
the offense. The section was amended in 2015. That amendment made no change of
consequence to the quoted language.
No. 74802-5-1/2


      conduct or sexual contact with an animal for a commercial or
      recreational purpose; or
         (e) Knowingly photographs or films, for purposes of sexual
      gratification, a person engaged in a sexual act or sexual contact
      with an animal.
         (4) Animal cruelty in the first degree is a class C felony.
         (5) In addition to the penalty imposed in subsection (4) of this
      section, the court may order that the convicted person do any of the
      following:
         (a) Not harbor or own animals or reside in any household where
      animals are present;
         (b) Participate in appropriate counseling at the defendant's
      expense;
         (c) Reimburse the animal shelter or humane society for any
      reasonable costs incurred for the care and maintenance of any
      animals taken to the animal shelter or humane society as a result of
      conduct proscribed in subsection (3) of this section.
         (6) Nothing in this section may be considered to prohibit
      accepted animal husbandry practices or accepted veterinary
      medical practices by a licensed veterinarian or certified veterinary
      technician.
         (7) If the court has reasonable grounds to believe that a
      violation of this section has occurred, the court may order the
      seizure of all animals involved in the alleged violation as a condition
      of bond of a person charged with a violation.
         (8) For purposes of this section:
         (a)"Animal" means every creature, either alive or dead, other
      than a human being.
         (b)"Sexual conduct" means any touching or fondling by a
      person, either directly or through clothing, of the sex organs or anus
      of an animal or any transfer or transmission of semen by the person
      upon any part of the animal, for the purpose of sexual gratification
      or arousal of the person.
          (c)"Sexual contact" means any contact, however slight,
      between the mouth, sex organ, or anus of a person and the sex
      organ or anus of an animal, or any intrusion, however slight, of any
      part of the body of the person into the sex organ or anus of an
      animal, or any intrusion of the sex organ or anus of the person into
      the mouth of the animal, for the purpose of sexual gratification or
      arousal of the person.
          (d)"Photographs" or "films" means the making of a photograph,
      motion picture film, videotape, digital image, or any other recording,
      sale, or transmission of the image.




                                        2
No. 74802-5-1/3


(Emphasis added.)

      This section sets forth a complete statement of the crime of animal cruelty

in the first degree. It also unquestionably provides that the offense is one that

may be committed by alternative means. But what are those means?

       Case law is helpful to making this determination.

             Alternative means crimes are ones that provide that the
      proscribed criminal conduct may be proved in a variety of ways. As
      a general rule, such crimes are set forth in a statute stating a single
      offense, under which are set forth more than one means by which
      the offense may be committed.

State v. Smith, 159 Wn.2d 778, 784, 154 P.3d 873(2007).

       This analysis has a logical limitation.

      [A] defendant may not simply point to an instruction or statute that
      is phrased in the disjunctive in order to trigger a substantial
      evidence review of her conviction. Likewise, where a disputed
      instruction involves alternatives that may be characterized as a
      "'means within [a] means," the constitutional right to a unanimous
      jury verdict is not implicated and the alternative means doctrine
      does not apply. In re Pers. Restraint of Jeffries, 110 Wn.2d 326,
      339, 752 P.2d 1338(1988)(refusing to accept defendant's claim
      that the jury should be additionally instructed on the subalternatives
      of the statutory alternatives at issue).

Smith, 159 Wn.2d at 783. To be clear, "a 'means within a means' scenario does

not trigger jury unanimity protections." Smith, 159 Wn.2d at 787.

       The alternative means of committing the crime of animal cruelty in the first

degree are three in number. They are set out in subsections 1, 2, and 3 of

former RCW 16.52.205. Each of these subsections begins with the words,"A

person is guilty of animal cruelty in the first degree when . . . ." In each

subsection, thereafter follows the words describing the means set forth therein.



                                          3
No. 74802-5-1/4


         The error made in Peterson is that the court confused certain

subalternatives ("means within a means")for actual alternative means. The

words set forth in subsection 2("starves, dehydrates, or suffocates") are "means

within a means." The jury unanimity guarantee does not attach to these

subaltern atives.

         Subsection 1, viewed broadly, criminalizes torturing animals. Subsection

2, viewed broadly, criminalizes withholding life's necessities (air, food, water)

from animals. Subsection 3 criminalizes sexual perversion with animals. These

are the alternative means.

         This court, in Peterson, got it wrong. The majority opinion perpetuates the

error.

         But a unanimous jury convicted the defendant based on the single means

alleged—a violation of former RCW 16.52.205(2). Therefore, I concur in

affirming the judgment.




                                          4
