In the Matter of the Petition of BARNES MICHAEL WARE to Convene a Grand Jury. In the Matter of the Application of ERIKA JOHNSON for a Citizen's Complaint.
the Lewis County Prosecuting Attorney's Office's
decision to not file charges in an animal abuse case, two
private citizens separately sought to independently initiate
criminal charges. In the first case, Erika Johnson filed a
petition in district court, requesting authorization to file
a citizen's complaint. After the district court denied
Johnson's petition, Barnes Michael Ware filed a petition
to summon a grand jury in superior court, based on the same
set of facts underlying Johnson's petition. The superior
court similarly denied Ware's petition. In these
consolidated appeals, the appellants argue that the lower
courts erred in finding that granting their petitions would
unconstitutionally violate the separation of powers. Johnson
also argues that the superior court, on review of the
district court's decision, erred in finding that the
prosecutorial standards did not warrant the filing of
criminal charges through her petition.
that the district court did not abuse its discretion in
denying Johnson's petition. We also hold that the
superior court did not abuse its discretion in denying
Ware's petition. Accordingly, we affirm the district
court's dismissal of Johnson's petition for issuance
of a citizen's complaint, and we affirm the superior
court's dismissal of Ware's petition to summon a
April 28, 2016, the Centralia Police Department responded to
a report of animal abuse at a Centralia apartment complex.
The reporting party, Samantha Riggen, told officers that her
neighbors had tortured and killed her mother's cat by
throwing a rock at the cat and stabbing the cat with a knife.
William D. Phipps of the Centralia Police Department arrived
on scene and was met by a large group of residents from the
apartment complex. Officer Phipps interviewed four witnesses
to the incident-one adult and three children. The adult,
Alicia Schroeder, told Officer Phipps that her daughter had
come to her and told her that two men "were going to
stab the cat." Clerk's Papers (CP) at 29. Schroeder
then ran to the back of the apartment complex and saw a man
she identified as Kyle Burke stab the cat in the neck and
attempt to push the cat under a chain link fence.
three juvenile witnesses who witnessed the incident told
Officer Phipps that Emily Miller, another juvenile who lived
in the apartment complex, had squeezed the cat, refused to
let go, and twice threw the cat up toward her mother, who was
standing on a second floor balcony. The girls informed
Officer Phipps that at some point Burke threw a rock at the
cat. After the cat fell to the ground, the girls reported
seeing Burke and a man identified as Richard Allshouse
running toward the cat with a knife. According to the girls,
the two men were arguing about who would get to kill the cat
first. The girls told Officer Phipps that Burke stabbed the
cat and then shoved its body under a fence.
on this information, Officer Phipps determined that there was
probable cause to arrest Burke for first degree animal
cruelty. Officer Phipps placed Burke under arrest and had him
transported to Lewis County Jail.
Phipps then went to the back of the apartment building and
discovered that the cat's body had been removed from the
fence and placed in a plastic garbage bag. Officer Phipps
removed the cat's body from the bag and photographed its
remains. Officer Phipps reported that "[t]he only injury
to the cat appeared to be to its head due to bleeding from
the mouth and ears," and "[b]ecause of the blood I
could not tell if there was a stab wound in its ears or
not." CP at 30.
Phipps filled out an incident report detailing the facts set
out above. His report requested that this case be forwarded
to the Lewis County Prosecuting Attorney's Office.
Prosecutor's Office Declines to File Charges
April 29, the Lewis County Prosecuting Attorney's Office
sent a letter to the Centralia Police Department, informing
them that the prosecutor's office was declining to file
charges in this case. In the letter, the prosecutor's
office explained that Burke's "actions related to
the animal's death are unclear, at best, and he denied
even causing the death." CP at 62. The letter further
explained that, "One account is that Mr. Burke stabbed
the cat in the neck; however, when Officer Phipps examined
the cat's body, he was not able to locate any stab
wounds." CP at 62.
letter also stated that the prosecutor's office found the
accounts of the three juvenile witnesses to be the most
credible and unbiased. However, those witness accounts
"related that another juvenile female caused the cat a
substantial amount of suffering prior to Mr. Burke ever
becoming involved." CP at 62. Specifically, the three
juvenile witnesses stated that before Burke arrived on scene,
"the cat had been brutally squeezed, had been thrown or
dropped from a second story balcony at least twice, and had a
stone dropped upon or thrown against its head." CP at
62. The prosecutor's office stated that given these
facts, it did not believe it would be possible to prove to a
jury beyond a reasonable doubt that Burke committed first
degree animal cruelty.
prosecutor's office also cited the evidentiary issues in
the case; namely, that the cat's body was not collected
at the scene. Without the body, the prosecutor's office
would be unable to show how the cat died. The letter
explained that any effort to recover the cat's body at
this point in the investigation would be fruitless because
the cat's body could have been tampered with since the
letter concluded, "What happened to this animal was
deplorable, inhumane, and without justification.
Nevertheless, I cannot charge Mr. Burke with causing these
harms without solid evidence that he is the individual who
caused them." CP at 63.
Subsequent Involvement of Private Parties
Barnes Michael Ware
Michael Ware is a retired police officer. His wife, Mary
Ware,  followed the incident involving the cat on
Lewis County Sirens. When Mary discovered that the cat's
body had not been taken into evidence, she offered to take
the cat and have him cremated.
April 29, Ware and Mary went to the apartment complex to
retrieve the cat's body. There, the two discovered that
the cat's body had already been removed from the trash
and placed into a garbage bag inside a cardboard
Neither opened the box, but Ware had Schroeder initial and
date the box to show when he took charge of the box. Ware and
Mary returned to their residence and placed the box inside a
spare refrigerator in their garage.
next day, Ware met with Erika Johnson of Thurston County
Animal Services at an animal hospital in Olympia. Ware signed
and dated the box when he released it into Johnson's
is a former police officer and deputy sheriff in the State of
Oregon. At the time of this incident, Johnson worked as an
animal services officer with Thurston County.
Ware gave Johnson the box containing the cat's body,
Johnson took the box and turned it over to an animal hospital
to conduct a necropsy. The report following necropsy stated,
"To summarize the injuries, the cat suffered severe head
and neck trauma. The exact cause of death is either skull
fracture, penetrating brain trauma, cervical spinal fracture
or possibly choking, due to the deep contusions and
hemorr[h]age within the wall of the trachea and cervical deep
tissues." CP at 33.
28, Johnson met with the prosecutor's office and the
Centralia Police Chief. The purpose of the meeting was to
discuss the prior charging decision in the case. At the
meeting, the prosecutor's office told Johnson that it did
not believe there was sufficient evidence to prove
Burke's intent. The prosecutor's office also informed
Johnson that it had referred Miller to the Juvenile Division.
The prosecutor's office reiterated that it would not be
filing charges in this case.
Animal Legal Defense Fund
November 22, the Animal Legal Defense Fund
(ALDF) sent a letter to the prosecutor's
office, urging the prosecutor's office to bring charges
against Burke. In the letter, the ALDF outlined charging
theories that it believed the prosecutor's office could
pursue. The letter then explained how the necropsy report
supported those charging theories.
prosecutor's office responded to the letter, explaining
that it had again reviewed the results of the necropsy, but
was still declining to file charges. The prosecutor's
office explained that "[n]othing in the report leads to
any reliable, admissible evidence that Mr. Burke's
actions constitute a crime beyond a reasonable doubt. What he
did is, frankly, horrific. However, the report itself cannot
pinpoint, with certainty, what caused the death in this
case." CP at 70.
prosecutor's office informed the ALDF that it takes
animal cruelty cases very seriously, but also "must be
mindful of the admissible evidence, the mandates imposed by
statutes and the burden of proof." CP at 70. The
prosecutor's office reiterated that it was declining to
file charges in this case.
Private Citizen Petitions
Filing in District Court
December 20, Johnson filed a petition for issuance of a
citizen's complaint under CrRLJ 2.1 (c). Under CrRLJ
Any person wishing to institute a criminal action alleging a
misdemeanor or gross misdemeanor shall appear before a judge
empowered to commit persons charged with offenses against the
State, other than a judge pro tem.
. . . .
In addition to probable cause, the court may consider:
(1) Whether an unsuccessful prosecution will subject the
State to costs or damage claims under RCW 9A.16.110, or other
(2) Whether the complainant has adequate recourse under laws
governing small claims suits, anti-harassment petitions or
other civil actions;
(3) Whether a criminal investigation is pending;
(4) Whether other criminal charges could be disrupted by
allowing the citizen ...