Anne St. Clare appeals her conviction often 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.
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 distressed. On
other visits, more cats were visible, they appeared ill and
distressed, and conditions appeared unsanitary.
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.
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.
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.
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 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.
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.
jury convicted St. Clare as charged. She appeals.
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
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. Clausing, 147
Wn.2d 620, 626, 56 P.3d 550 (2002)). The adequacy of
instructions is a question of law that this court reviews de
novo. Id. (citing State v. DeRvke, 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)).
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.
\± at 99 (citing State v. Kirkman,
159 Wn.2d 918, 935, 155 P.3d 125 (2007)).
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).
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
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 ...