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State v. Picard

November 4, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
DREW PICARD, B.D. 6-30-81, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-8-05641-7. Date filed: 01/24/96. Judge signing: Hon. Michael S. Spearman.

PER CURIAM -- Drew Picard pleaded guilty to two counts of animal cruelty in the first degree. Finding numerous aggravating factors, the juvenile court imposed a manifest inJustice Disposition of 52 weeks. Picard contends that some of the aggravating factors are not supported by substantial evidence and that others are not valid aggravating factors. He also contends that the length of the Disposition is clearly excessive.

Two of the aggravating factors relied on by the juvenile court, that the cats were particularly vulnerable victims and that the offenses were committed in an especially cruel and depraved manner, are not valid aggravating factors. The remaining factors, Picard's role as the instigator and leader of the offenses, his failure to follow previous court orders, his high risk to reoffend, his need for treatment, and the risk to the community, are supported by substantial evidence and are valid aggravating factors. We affirm.

On May 1 and June 5, 1995, cats were found hanged from a tree in a Seattle cemetery. Police investigated and learned that Picard and Marcus Dibenedetto were involved in the first incident and that Picard, Dibenedetto and Terry Stroud were involved in the second incident. Each of them gave statements to the police.

As to the first incident, Picard admitted that he and Dibenedetto skipped school and smoked marijuana. They picked up a cat, took it to the cemetery and hanged it. Dibenedetto got an electrical cord, which Picard tied around the cat's neck and Dibenedetto tied to the tree. They both pulled the cord around the tree branch and hanged the cat. Picard stated that he was mad because the cat had bitten him when he tried to pet it.

As to the second incident, Picard admitted that he and Dibenedetto were skipping school again and were in the same area. They picked up a cat, carried it to the cemetery, and hanged it. Picard stated that he did not recall how they hanged it, but he recalled it took a few minutes for the cat to die. Picard stated that they hanged the cat because it scratched Dibenedetto when he tried to pet it.

Picard also admitted that a few days later, he and Dibenedetto threw a cat off a bridge for no reason. He stated that he carried the cat to the bridge and Dibenedetto threw it off. Picard believed that the cat lived because it ran off when it hit the ground.

Dibenedetto's version of the first incident was consistent with Picard's, except that he stated the cat did not bite or scratch Picard. Dibenedetto admitted getting the cord, but stated that Picard tied the cord and hanged the cat.

As to the second incident, Dibenedetto stated that Picard picked up the cat. Picard, Dibenedetto and Stroud then went to the cemetery. Dibenedetto and Stroud got the cord, and Picard hanged the cat. Dibenedetto stated that Picard and Stroud played with the cat, pulling the cord up and down and that it took about five minutes for the cat to die. After the three shared a cigarette, they placed it in the cat's mouth and laughed.

Dibenedetto also admitted that he and Picard threw a cat off a bridge a few days later. Dibenedetto stated that he carried the cat, but Picard threw it.

Stroud admitted his involvement in the second hanging incident. According to Stroud, it was Picard's idea to kill a cat, but Dibenedetto carried the cat to the cemetery. Stroud found a cord, and Picard and Dibenedetto tied up the cat. Dibenedetto kicked the cat when it bit him, and he and Picard threw stuff at the cat.

In addition to the police statements, the trial court considered three psychological reports of Dr. Kenneth Asher, Dr. Denis Short and Dr. Moore, *fn1 school reports, the probation counselor's report, two research articles suggesting a correlation between animal cruelty and other violence, and written and oral statements from the cats' owners. The standard range for the offense included two-four days detention and three-six months of community supervision. The probation counselor and the State recommended a manifest inJustice Disposition of 52 weeks confinement.

The juvenile court imposed a manifest inJustice Disposition of 52 weeks based on several aggravating factors: the victims' vulnerability, the cruel, heinous and depraved nature of the offenses, Picard's role as instigator and leader of the offenses, his failure to follow previous court orders, his high risk to reoffend, his need for treatment and the risk to the community.

To uphold a Disposition outside the standard range, the appellate court must find that (1) the Disposition court's reasons are supported by the record; (2) those reasons clearly and convincingly support the Conclusion that a Disposition within the standard range would constitute a manifest inJustice; and (3) the sentence is neither clearly excessive nor too lenient. RCW 13.40.230(2). State v. E.J.H., 65 Wash. App. 771, 775, 830 P.2d 375 (1992). The reasons relied on by the Disposition court must be supported by substantial evidence. State v. P.B.T., 67 Wash. App. 292, 301, 834 P.2d 1051 (1992), review denied, 120 Wash. 2d 1021 (1993). These reasons in turn must support the determination of a manifest inJustice Disposition beyond a reasonable doubt. State v. Rhodes, 92 Wash. 2d 755, 760, 600 P.2d 1264 (1979).

Picard contends that some of the court's reasons are not supported by the evidence and that the reasons do not support a manifest inJustice Disposition. ...


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