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State v. Wilson

Court of Appeals of Washington, Division 2

October 8, 2019

STATE OF WASHINGTON, Respondent,
v.
ROBERT ERNEST WILSON, JR., Appellant.

          MAXA C.J.

         Robert Wilson appeals his conviction of first degree animal cruelty, which arose from an incident at an archery club when Wilson shot a large dog with an arrow after that dog had attacked Wilson's small dog. Wilson argues that his action was lawful under RCW 16.08.020, which states that it is lawful for a person to kill a dog seen chasing, biting, or injuring a domestic animal on real property that person owns, leases, or controls.

         We hold that although the trial court did not err in denying Wilson's motion to dismiss under RCW 16.08.020, the trial court erred in refusing to give Wilson's proposed jury instruction based on RCW 16.08.020 and this error was not harmless because the trial court's to-convict instruction introduced an element of Wilson's defense that was inconsistent with RCW 16.08.020.[1] Accordingly, we reverse Wilson's conviction and remand for further proceedings.

         FACTS

         On May 14, 2017, "Dozer," a 70 pound dog, ran across the highway south of Aberdeen to the Grays Harbor Bowmen Club. Within minutes, he returned home to his owner with an arrow protruding from his rear end. Dozer was in pain but eventually recovered from the injury.

         A deputy sheriff viewed a surveillance video from the archery club and interviewed Wilson, a club member. Wilson admitted shooting Dozer with an arrow. He explained that Dozer had attacked his dog "Little Bit", had Little Bit in his mouth and was shaking him, and let him go after Wilson approached yelling. The State charged Wilson with first degree animal cruelty.

         Before trial, Wilson moved for dismissal under CrR 8.3(c), claiming that he had a statutory right to shoot Dozer under RCW 16.08.020. In support of the motion, Wilson submitted a declaration stating that he saw Dozer biting and shaking Little Bit. However, the declaration did not address whether he had control over the club property when the incident occurred. The trial court denied the motion.

         At trial, Wilson testified that he was a member of the archery club and had a key to the club's gate, indoor range, and clubhouse. On the day of the incident, he went to the club and brought Little Bit with him. While he was shooting, Wilson heard Little Bit screaming. He saw that Dozer had Little Bit and was shaking her. Wilson ran toward the dogs, and Dozer dropped Little Bit and moved about 10 feet away. But Dozer was pacing back and forth, and Wilson thought that he was waiting for another chance to attack Little Bit.

         As Dozer moved toward the road, Wilson shot the dog in the rear end with an arrow. Wilson stated that he was not trying to hurt Dozer and that he could have killed the dog if he had wanted to.

         Wilson proposed the following jury instruction based on the statutory language of RCW 16.08.020:

It is a defense to a charge of Animal Cruelty that the dog was chasing, biting, injuring or killing any sheep, swine or other domestic animal, including poultry, belonging to such person, on any real property owned or leased by, or under the control of, such person.
The State has the burden of proving beyond a reasonable doubt that the force used by the defendant was not lawful. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.

Clerk's Papers (CP) at 99-100.

         The trial court declined to give Wilson's proposed instruction. The court ruled that RCW 16.08.020 applied only when a dog was injuring stock animals and did not apply when a dog was injuring another dog. The court stated that the statute "is designed for stock animals and it wasn't intended for this particular situation." Report of Proceedings (July 18, 2017) at 90.

         However, the trial court recognized that the common law allowed the owner of an animal to take reasonably necessary action in defense of that animal. The court also recognized, and the State agreed, that this was a defense that the State was required to disprove beyond a reasonable doubt. Therefore, the court's to-convict instruction required the State to prove beyond a reasonable doubt that Wilson's actions "were not in defense of his dog, and were not reasonably necessary." CP at 31.

         The jury found Wilson guilty of first degree animal cruelty. ...


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