                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                           April 7, 2020



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                             No. 52278-1-II

                               Respondent.

         vs.                                                    PUBLISHED OPINION

    LLEWELLYN ANDREW ROY,

                               Appellant.



        MAXA, C.J. – Llewellyn Roy appeals his conviction of second degree animal cruelty.

Under RCW 16.52.207(2)(a)1, a person is guilty of second degree animal cruelty for “fail[ing] to

provide the animal with necessary shelter, rest, sanitation, space, or medical attention” and

causing unnecessary pain as a result.

        Roy argues that RCW 16.52.207(2)(a) provides five alternative means of committing the

offense. Because the jury was instructed on all five means and was not instructed that jurors had

to be unanimous regarding one of the means, he claims that the State was required to present

sufficient evidence to support each means to sustain the conviction.

        We hold that RCW 16.52.207(2)(a) provides only a single means of committing the

crime of second degree animal cruelty, and the five listed terms are merely different ways of




1
  RCW 16.52.207 was amended in 2019. Because those amendments do not materially affect the
language relied on by this court, we cite to the current version of the statute.
No. 52278-1-II


committing that single means. And we hold that the State presented sufficient evidence to prove

one of the ways, failing to provide necessary medical treatment and thereby causing unnecessary

or unjustifiable physical pain to his animals. Accordingly, we affirm Roy’s conviction.

                                                 FACTS

       On the evening of July 15, 2017, Roy was arrested on his way to the store and placed in

jail. At the time, he owned two mastiffs named Fausto and Azura, a bulldog named Mike, and

four parrots.

       On July 19, Roy’s neighbor, Lisa Wesen, was concerned because she heard barking day

and night and noticed that Roy’s car had not been home for several days. After knocking on the

front door and finding no one home, she went to the back fence and saw the three dogs in the

backyard. Fausto was in a kennel on the back porch that was compacted with feces, and the dog

had nowhere to stand or lie down. Mike was on the back porch staring at the door and Azura

was by the fence barking. The mastiffs looked skinny, had red and goopy eyes, and did not look

healthy. Wesen and her husband brought food and water to the dogs and a neighbor shoveled out

the kennel. Wesen contacted Jennifer Krueger, an animal control officer for the City of

Centralia.

       Krueger went to the jail and spoke with Roy and Roy asked her to contact his mother to

take care of the animals. When Roy’s mother declined to help, Krueger contacted Roy again and

he provided Krueger with a key to his home. Krueger also asked him to release the animals to an

animal shelter so they could get regular care.

       Krueger went to Roy’s home with Kyle Stockdale, another animal control officer. Roy’s

home was very warm and smelled of urine and feces. The parrots had shredded newspaper that




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was strewn about the living room. One of the parrots had died. The cages were filthy and the

parrots had no food or water.

       They found the dogs in the backyard. Krueger described the mastiffs:

       They were very, very skinny. You could see every knob on their spine. They had
       big sores on their elbows where they lay down. Their eyes were -- their eyelids
       were very swollen with a condition called cherry eye. The female couldn’t even
       hardly see out of her eyes, because the top and bottom lids were so swollen it was
       just a little slit for her to see.

1 Report of Proceedings at 113. She described the mastiffs as being in bad shape and in pain.

Stockdale provided similar testimony. Both mastiffs eventually received medical treatment for

their cherry eye as well as for ear and skin infections.

       The State charged Roy with first degree and second degree animal cruelty. At trial, the

State explained that the first degree charge pertained to the deceased parrot and the second

degree charge pertained to the mastiffs.

       The to-convict instruction for second degree animal cruelty, tracking the language of

RCW 16.52.207(2)(a), required the State to prove that Roy “knowingly, recklessly, or with

criminal negligence failed to provide an animal with necessary shelter, rest, sanitation, space, or

medical attention.” Clerk’s Papers at 25. The trial court instructed the jury that it had to be

unanimous as to one act of second degree animal cruelty. The court did not instruct the jury that

it had to be unanimous regarding the particular ways of committing the crime listed in the to-

convict instruction.

       The jury could not reach a verdict on first degree animal cruelty pertaining to the parrot

and found Roy guilty of second degree animal cruelty pertaining to the mastiffs. Roy appeals his

conviction.




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No. 52278-1-II


                                            ANALYSIS

A.     SECOND DEGREE ANIMAL CRUELTY AND ALTERNATIVE MEANS

       Roy argues that RCW 16.52.207(2)(a) provides five alternative means of committing

second degree animal cruelty and that the State did not present sufficient evidence to prove each

means. We disagree.

       1. Statutory Language

       RCW 16.52.207(2)(a) provides:

          An owner of an animal is guilty of animal cruelty in the second degree if, under
       circumstances not amounting to first degree animal cruelty, the owner knowingly,
       recklessly, or with criminal negligence:
          (a) Fails to provide the animal with necessary shelter, rest, sanitation, space, or
       medical attention and the animal suffers unnecessary or unjustifiable physical pain
       as a result of the failure.

RCW 16.52.207(2)(a). RCW 16.52.207 identifies three other means of committing second degree

animal cruelty: knowingly, recklessly, or with criminal negligence inflicting unnecessary suffering

or pain on an animal, RCW 16.52.207(1)(a); abandoning an animal, RCW 16.52.207(2)(b); and

abandoning an animal when the animal suffers bodily harm or the abandonment creates a risk that

the animal will suffer substantial bodily harm, RCW 16.52.207(2)(c).

       Roy claims that RCW 16.52.207(2)(a) identifies five alternative means for committing

the crime under that subsection: knowingly, recklessly, or with criminal negligence failing to

provide (1) shelter, (2) rest, (3) sanitation, (4) space, or (5) medical attention. The State argues

that subsection (2)(a) identifies only one means of committing animal cruelty, and that the

subsection merely provides five ways of committing that single means.

       2.    Alternative Means Doctrine

       An alternative means crime is one where the applicable statute provides that the

proscribed criminal conduct can be proved in multiple ways. State v. Barboza-Cortes, 194



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No. 52278-1-II


Wn.2d 639, 643, 451 P.3d 707 (2019). As a general rule, the statute identifies a single crime and

states that the crime can be committed by more than one means. State v. Smith, 159 Wn.2d 778,

784, 154 P.3d 873 (2007). Determining whether a statute provides alternative means of

committing a crime is a matter of judicial interpretation. Barboza-Cortes, 194 Wn.2d at 643.

       The alternative means determination relates to jury unanimity required under article I,

section 21 of the Washington Constitution. State v. Owens, 180 Wn.2d 90, 95, 323 P.3d 1030

(2014). For an alternative means crime, a defendant is entitled to a unanimous jury

determination as to the particular means by which he or she committed the crime. Id. If there is

no express statement of jury unanimity, the State must present sufficient evidence to support

each of the alternative means. Id. But if the statute identifies a single means of committing a

crime, unanimity is not required even if there are different ways of establishing that means. See

Barboza-Cortes, 194 Wn.2d at 643.

       The alternative means analysis focuses on whether the statute describes the crime in

terms of separate, distinct acts (alternative means) or in terms of closely related acts that are

aspects of one type of conduct (not alternative means). State v. Sandholm, 184 Wn.2d 726, 734.

364 P.3d 87 (2015).

       The more varied the criminal conduct, the more likely the statute describes
       alternative means. But when the statute describes minor nuances inhering in the
       same act, the more likely the various “alternatives” are merely facets of the same
       criminal conduct.

Id.

       Two other principles are relevant here. First, the use of a disjunctive “or” in a list of

ways of committing the crime does not necessarily mean that those ways are alternative means.

Owens, 180 Wn.2d at 96. For example, in Owens the Supreme Court held that seven terms




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No. 52278-1-II


stated in the disjunctive, read together, constituted a single means rather than seven alternative

means for trafficking in stolen property. Id. at 98.

       Second, a statute that provides a means within a means does not identify an alternative

means crime. Smith, 159 Wn.2d at 783. “[W]here 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.” Id.

       3.    Analysis

       In Barboza-Cortes, the court addressed RCW 9.41.040(2)(a), which states that a person is

guilty of second degree possession of a firearm if the person “owns, has in his or her possession,

or has in his or her control any firearm” after having been previously convicted of certain

felonies. 194 Wn.2d at 646. The court held that this statute did not establish an alternative

means crime. Id. The court stated, “While there may be subtle distinctions in aspects of

ownership, possession, and control that may be material in other contexts, in the present

circumstances that all describe ways of accessing guns.” Id. Therefore, the terms were merely

“nuances inhering in” accessing guns and “facets of the same criminal conduct.” Id. (quoting

Sandholm, 184 Wn.2d at 734).

       In Owens, the court addressed RCW 9A.82.050(1), which prohibits trafficking in stolen

property. 180 Wn.2d at 92. The statute provided that a person is guilty of trafficking if he or she

“ ‘knowingly initiates, organizes, plans, finances, directs, manages, or supervises the theft of

property for sale to others.’ ” Id. at 96 (quoting RCW 9A.82.050(1)). The court held that this

group of terms together identified a single category of criminal conduct – facilitating or

participating in the theft of stolen property. Id. at 98-99.




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No. 52278-1-II


        Here, shelter, rest, sanitation, space, and medical attention represent different aspects of

the basic necessities for an animal’s comfortable life. They are not independent, essential

elements of the crime. Instead, they are “minor nuances inhering in the same act” and “facets of

the same criminal conduct.” Sandholm, 184 Wn.2d at 734. Read together, the listed terms

criminalize failing to provide an animal with basic necessities.

        We conclude that RCW 16.52.207(2)(a) identifies a single means of committing second

degree animal cruelty: failing to provide an animal with the basic necessities of life and thereby

causing unnecessary or unjustifiable physical pain. RCW 16.52.207(2)(a) does not describe five

alternative means of committing that crime.

B.      SUFFICIENCY OF THE EVIDENCE

        Roy argues that his due process rights were violated because the State did not present

sufficient evidence to prove all of the means listed in RCW 16.52.207(2)(a) beyond a reasonable

doubt. But we have held above that RCW 16.52.207(2)(a) provides a single means of

committing second degree animal cruelty, not five alternative means. As noted above, if the

statute identifies a single means of committing a crime, unanimity is not required even if there

are different ways of establishing that means. See Barboza-Cortes, 194 Wn.2d at 643.

Therefore, the State had to prove only that Roy failed to provide both mastiffs with necessary

shelter, rest, sanitation, space, or medical attention.

        Here, the State presented evidence that Roy failed to provide both mastiffs with medical

attention. Both dogs were emaciated, had sores on their elbows, and had cherry eye. Both

also exhibited pain when they moved. Both were later treated for the cherry eye as well as ear

and skin infections. And there was evidence that the mastiffs suffered unnecessary or

unjustifiable physical pain as a result of the failure to provide medical attention.



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       We hold that the State provided sufficient evidence that Roy’s conduct amounted to second

degree animal cruelty under RCW 16.52.207(2)(a).

                                       CONCLUSION

       We affirm Roy’s conviction of second degree animal cruelty.



                                                   MAXA, C.J.



 We concur:



SUTTON, J.




GLASGOW, J.




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