State Of Washington, Respondent V. Denver Lee Shoop, Appellant (Majority)

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Filed Washington State Court of Appeals Division Two June 1, 2022 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 54197-1-II (Consolidated with 55147-1-II) Respondent, v. PUBLISHED IN PART OPINION DENVER LEE SHOOP, Appellant. PRICE, J. — Denver Shoop appeals his convictions for eight counts of first degree animal cruelty and the related restitution order. He argues: (1) RCW 16.52.205(2)(a) is an alternative means statute, and the State neither presented sufficient evidence to support each of the alternative means nor instructed the jury as to unanimity with regard to each of the alternative means, (2) his right to a unanimous jury was violated because the jury was not given a Petrich1 instruction, (3) the State committed misconduct in telling the jury it did not need to be unanimous regarding the cause of starvation, (4) the trial court’s denial of funds for an expert evaluation denied him effective assistance of counsel, and (5) the trial court abused its discretion in its order for restitution. Shoop also raises additional issues in a statement of additional grounds. 1 State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), abrogated on other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988), abrogated on other grounds by Pers. Restraint of Stockwell, 170 Wn.2d 588, 316 P.3d 1007 (2014). No. 54197-1-II (Consol. with 55147-1-II) We hold that RCW 16.52.205(2)(a) is not an alternative means statute and that a Petrich instruction was not required in this case. In the unpublished portion to this opinion, we determine that all of Shoop’s remaining arguments fail. Accordingly, we affirm Shoop’s convictions and the trial court’s restitution order. FACTS I. BACKGROUND Shoop owned bison that he kept in a field on his property along with other animals. An animal control officer received a report of animal cruelty related to the bison and drove to Shoop’s property. The officer observed eight bison that appeared emaciated and weak. The officer subsequently obtained a warrant and seized seven out of the eight bison but was unable to take the eighth due to its size. One of the bison was pregnant when it was seized, and it later gave birth to a calf. Shoop was charged with eight counts of first degree animal cruelty, seven for the bison that were seized and one for the bison that the State was unable to seize. His first trial resulted in a mistrial due to a hung jury. II. SECOND TRIAL A. JURY SELECTION AND OPENING STATEMENTS Prior to jury selection for the second trial, the trial court gave preliminary instructions to the entire pool of potential jurors. The trial court stated that Shoop was charged with eight counts of first degree animal cruelty and the counts “pertain[ed] to different animals.” 6 Transcript of Proceedings (RP) at 1016. The trial court subsequently repeated that there were eight counts and each pertained to a separate bison. 2 No. 54197-1-II (Consol. with 55147-1-II) Once the jury was selected, the State presented its opening statement. When discussing the charges, the State said that Shoop was being charged with eight counts of first degree animal cruelty, “one for each bison.” 7 RP at 1224. B. TESTIMONY At trial, the State presented a significant amount of testimony showing that the condition of the bison was due to a parasitic infection from untreated worms and inadequate food. The State also presented testimony indicating that Shoop had intentionally deprived the bison of water for extended periods of time. An expert for the State said that at the time the bison were seized, on a scale of one to five (with five being ideal), three of the bison received a score of one (imminent danger of sickness or death), four received a score of two (moderately thin), and one received a score of two to three. Shoop offered testimony showing that he did not deprive the animals of food and water. Witnesses stated that Shoop had provided dewormer medication to the bison and the animals were in good condition prior to being seized. Shoop also presented testimony that the condition of the bison could have been caused by ingesting toxic plants, by weather conditions, or by liver flukes which are difficult to diagnose. C. JURY INSTRUCTIONS AND CLOSING ARGUMENT Following the close of the evidence, the case was submitted to the jury as eight separate counts of second degree animal cruelty. The jury was instructed, “A separate crime is charged in each count. You must decide each count separately. Your verdict in one count should not control your verdict on any other count.” Clerk’s Papers (CP) at 154. Additionally, the jury instructions 3 No. 54197-1-II (Consol. with 55147-1-II) for each of the counts stated that the jury must find the following elements beyond a reasonable doubt: (1) That on or about between October 1, 2017 and April 23, 2018, the defendant, (2) on an occasion separate and distinct from the act alleged [in all other counts], (3) with criminal negligence, starved, dehydrated, or suffocated an animal and as a result (4) caused substantial and unjustifiable physical pain that extended for a period sufficient to cause considerable suffering; and (5) That this act occurred in the State of Washington, County of Jefferson. CP at 163-70. Although the jury was instructed generally regarding unanimity, they were not given a Petrich2 instruction. In its closing argument, the State acknowledged that there was evidence that starvation occurred because of both the lack of food and a parasitic infection but told the jury that you don’t have to agree on exactly the method of starvation. So that’s not what’s meant by unanimity. You just have to agree that the elements of the State—of the charge have been proved beyond a reasonable doubt. 9 RP at 1659. The State also said that the charges were based on a six month time range because starvation takes time. Absent from the State’s closing was a detailed discussion of how the animal cruelty charges specifically applied to the evidence that had been presented. Also, unlike its opening statement, the State did not mention whether it intended that each charge related to a separate bison or whether multiple charges applied to a single bison. The jury found Shoop guilty of all eight counts of first degree animal cruelty. 2 A Petrich instruction instructs the jury that it must be unanimous as to the distinct criminal act. 101 Wn.2d at 569-70. 4 No. 54197-1-II (Consol. with 55147-1-II) Following the jury’s verdict, Shoop filed a motion for arrest of judgment arguing that starvation, dehydration, and suffocation were alternative means of committing animal cruelty and because the trial court had not instructed the jury to find a specific means by which Shoop had committed animal cruelty, the State was required to introduce substantial evidence on each of the alternatives. And since the State focused mostly on starvation, there was insufficient evidence that the bison were dehydrated and suffocated. The trial court denied Shoop’s motion. Shoop appeals his convictions. ANALYSIS I. RCW 16.52.205(2)(A) AND ALTERNATIVE MEANS Shoop argues that RCW 16.52.205(2)(a) is an alternative means statute that requires either a unanimity instruction regarding the alternatives or a showing that the State presented sufficient evidence to support each of the alternatives. We disagree and hold that RCW 16.52.205(2)(a) is not an alternative means statute. A. STATUTORY LANGUAGE Washington’s animal cruelty statute includes several different ways the statute can be violated. Relevant here, RCW 16.52.205(2)(a) provides: A person is guilty of animal cruelty in the first degree when . . . he or she, with criminal negligence, starves, dehydrates, or suffocates an animal, or exposes an animal to excessive heat or cold and as a result causes: (i) Substantial and unjustifiable physical pain that extends for a period sufficient to cause considerable suffering; or (ii) death. The two other means of committing first degree animal cruelty include the prohibition on torturing animals in subsection 1 and the prohibition of sexual contact with animals in subsection 3. RCW 16.52.205(1), (3). 5 No. 54197-1-II (Consol. with 55147-1-II) Here, the jury instructions only addressed subsection 2 and provided that animal cruelty occurred where an individual starved, dehydrated, or suffocated an animal. Shoop argues that these three means—starvation, dehydration, or suffocation—are three alternative means of committing animal cruelty. Since these means are different alternatives, and the jury was not instructed as to unanimity with regard to the alternative means, Shoop asserts that all three alternatives needed to be supported by sufficient evidence. B. ALTERNATIVE MEANS DOCTRINE A criminal statute that provides for multiple ways to prove that a defendant committed the crime is characterized as an alternative means crime. State v. Barboza-Cortes, 194 Wn.2d 639, 643, 451 P.3d 707 (2019). The alternative means doctrine implicates the criminal defendant’s right to a unanimous jury verdict. State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994); Barboza-Cortes, 194 Wn.2d at 643. Alternative means crimes require an expression of jury unanimity as to which means the defendant used to commit the crime. Barboza-Cortes, 194 Wn.2d at 643. However, “ ‘an expression of jury unanimity is not required provided each alternative means presented to the jury is supported by sufficient evidence.’ ” Id. (quoting State v. Sandholm, 184 Wn.2d 726, 732, 364 P.3d 87 (2015)). The alternative means doctrine does not apply where a statute includes alternatives characterized as “a ‘means within a means.’ ” State v. Jallow, 16 Wn. App. 2d 625, 638, 482 P.3d 959 (2021) (quoting State v. Smith, 159 Wn.2d 778, 783, 154 P.3d 873 (2007)). “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. Roy, 12 Wn. App. 2d 968, 974, 466 P.3d 1142 (2020). 6 No. 54197-1-II (Consol. with 55147-1-II) 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. Sandholm, 184 Wn.2d at 734. The use of the disjunctive “or” and the structuring of a statute into separate subsections are not dispositive as to the question of whether a statute creates alternative means. Id. The analysis instead should focus on whether the supposed alternatives describe “distinct acts that amount to the same crime.” Id. at 734 (quoting State v. Peterson, 168 Wn.2d 763, 770, 230 P.3d 588 (2010)). If so, then the alternative means doctrine will apply. Whether a statute provides alternative means is a question of judicial interpretation that is reviewed de novo. Barboza-Cortes, 194 Wn.2d at 643. C. APPLICATION Shoop argues that RCW 16.52.205(2)(a) provides alternative means of committing first degree animal cruelty and that the State did not present sufficient evidence to prove each means, depriving him of his right to a unanimous jury. We hold that RCW 16.52.205(2)(a) is not an alternative means statute. Division One of this court recently held in Jallow that RCW 16.52.205(2)(a) is not an alternative means crime, rejecting its prior decision that held the opposite. 16 Wn. App. 2d at 640 (court rejects holding in State v. Peterson, 174 Wn. App. 828, 301 P.3d 1060 (2013)). The Jallow court determined that the animal cruelty statute as a whole is an alternative means crime because there are three subsections that set out three alternative means for committing the crime. Id. at 639-40. But it decided that each subsection of the statute, including subsection 2, contained 7 No. 54197-1-II (Consol. with 55147-1-II) “means within a means” for committing the crime. Id. at 640. These means within a means did not render the subsections themselves alternative means crimes: “Each of these subsections begins with the words, ‘A person is guilty of animal cruelty in the first degree when . . . .’ In each subsection, thereafter follows the words describing the means set forth therein. The error made in Peterson is that the court confused certain subalternatives (‘means within a means’) for actual alternative means. The words set forth in subsection 2 (‘starves, dehydrates, or suffocates’) are ‘means within a means.’ The jury unanimity guarantee does not attach to these subalternatives. Subsection 1, viewed broadly, criminalizes torturing animals. Subsection 2, viewed broadly, criminalizes withholding life’s necessities (air, food, water) from animals. Subsection 3 criminalizes sexual perversion with animals. These are the alternative means.” Id. at 639-40 (quoting State v. St. Clare, 198 Wn. App. 371, 385-86, 393 P.3d 836 (2017) (Dwyer, J., concurring)). Thus, Jallow determined that RCW 16.52.205(2)(a) gives an alternative means for committing first degree animal cruelty by depriving an animal of the necessities of life. Id. at 640. “The ‘means within the means’ of depriving the animal of necessities of life are starving, dehydrating, suffocating, or exposing the animal to excessive heat or cold.” Id. at 640. We agree with Jallow that RCW 16.52.205(2)(a) makes it a crime to deprive an animal of basic life necessities through criminal negligence. The provision criminalizes neglect of animals that leads to this deprivation, whether that be through failing to provide food or water to the animal, by suffocation, or exposure to excessive temperatures. Each of the situations covered by subsection 2 are “closely related acts that are aspects of one type of conduct”3 because they 3 Roy, 12 Wn. App. 2d at 974. 8 No. 54197-1-II (Consol. with 55147-1-II) generally relate to an individual’s failure to take action to ensure an animal is provided with basic life necessities. Shoop maintains that subsection 2 provides alternative means because one act of the subsection does not necessitate another. For example, an individual could deprive an animal of water while still providing it with shelter and food. However, the alternative means analysis requires a close relationship, not complete overlap. And, again, all of the means in subsection 2 are closely related to basic life necessities. We hold that because the provision involves closely related means within the means, RCW 16.52.205(2)(a) is not an alternative means crime. Consequently, the fact that it was potentially unclear whether the jury unanimously found only one of the alternative means did not deprive Shoop of his right to a unanimous jury. II. PETRICH INSTRUCTION Shoop next argues that the failure to give a Petrich instruction also deprived him of his right to a unanimous jury. We disagree. A. LEGAL PRINCIPLES Criminal defendants have a right to a unanimous jury verdict found in the Sixth Amendment to the United States Constitution and article 1, section 22 of the Washington Constitution. Ramos v. Louisiana, __ U.S. __, 140 S. Ct. 1390, 1397, 206 L. Ed. 2d 583 (2020); State v. Armstrong, 188 Wn.2d 333, 340, 394 P.3d 373 (2017). Criminal defendants may be convicted only if a jury unanimously determines the defendant committed the criminal act with which they were charged. Petrich, 101 Wn.2d at 569. “When the prosecution presents evidence of several acts that could form the basis of one count charged, either the State must tell the jury 9 No. 54197-1-II (Consol. with 55147-1-II) which act to rely on in its deliberations or the court must instruct the jury to agree on a specific criminal act.” Kitchen, 110 Wn.2d at 409. The purpose of a Petrich instruction is to prevent confusion because where such an instruction is necessary, but not given, “some jurors may have relied on one act or incident and some another, resulting in a lack of unanimity on all of the elements necessary for a valid conviction.” Id. at 411. In State v. Carson, our Supreme Court held that a Petrich instruction is required where the State fails to “ ‘elect the act upon which it will reply for conviction.’ ” 184 Wn.2d 207, 227, 357 P.3d 1064 (2015) (quoting Petrich, 101 Wn.2d at 572). “For an election to be effective, ‘either the State must tell the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specific criminal act.’ ” Id. (quoting Kitchen, 110 Wn.2d at 409). In Carson, the court found that a Petrich instruction was not required because the State made an election in its closing argument by specifying the three different acts it was relying on and saying that those were the only incidents the jury should, in turn, rely on. Carson, 184 Wn.2d at 228-29. Moreover, neither an election nor Petrich instruction is required where the State has filed a single charge based on “a continuing course of conduct.” Petrich, 101 Wn.2d at 571; State v. Gooden, 51 Wn. App. 615, 618, 754 P.2d 1000 (1988). “[A] continuing course of conduct may form the basis of one charge in an information.” Petrich, 101 Wn.2d at 571. A continuing course of conduct occurs where the State presents evidence of “one continuing offense” as opposed to “several distinct acts.” Id. at 571 (internal quotation marks omitted) (citing U.S. v. Berardi, 675 F.2d 894, 897-900 (7th Cir. 1982)). Evidence that the conduct occurred at different times and places tends to show distinct acts and not a continuing course of conduct. State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989). However, evidence of a series of actions that are intended to 10 No. 54197-1-II (Consol. with 55147-1-II) secure the same outcome tends to support a finding of a continuing course of conduct. State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995). Determination of whether criminal conduct is “one continuing act” requires evaluation of the facts in a commonsense manner. Handran, 113 Wn.2d at 17. We review constitutional issues de novo. State v. Jorgenson, 179 Wn.2d 145, 150, 312 P.3d 960 (2013). B. APPLICATION Shoop maintains his right to a unanimous jury was violated because the State presented evidence of multiple acts to support each of the charged offenses but the jury did not receive a Petrich instruction.4 He asserts that although the jury instructions listed eight separate counts, neither the jury instructions nor the State explained precisely to what those eight counts pertained. Shoop argues that there is no way of knowing what effect the failure to include a unanimity instruction had on juror deliberations. He contends that one juror may have found multiple counts over a six month period for a single bison, while another may have found that each count applied to a separate bison. We disagree. Here, like Carson, the jury was clearly informed about the State’s election of the acts upon which it was relying for conviction. At the outset of jury selection, the trial court twice explained to the juror pool that the eight separate counts pertained to the eight bison. Later, during its opening 4 Shoop did not object to the jury instructions at trial. However, a claim of error based on jury unanimity is of constitutional magnitude and may be raised for the first time on appeal. State v. Crane, 116 Wn.2d 315, 325, 804 P.2d 10 (1991), abrogated on other grounds by In re Pers. Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002). 11 No. 54197-1-II (Consol. with 55147-1-II) statement to the jury, the State reiterated that it charged Shoop with eight counts, “one for each bison.” 6 RP at 1016-17, 7 RP at 1224. It is true that, unlike Carson, these statements were made at the outset of the case, not during closing argument. At oral argument before this court, Shoop contended that this is a critical distinction that makes the State’s election here ineffective. We disagree. That the election occurred in the State’s opening statement, especially when coupled with the trial court’s comments during jury selection, has no effect on its clarity to the jury and, therefore, its effectiveness.5 Shoop also argues that as a result of the State’s failure to give a proper unanimity instruction, it is unclear which particular act of animal cruelty the State was relying on as the basis for each of its charges, especially since the charging period was over six months in length. Shoop argues this failure to allege a specific act on a specific occasion for each bison for its charges potentially led to juror confusion depriving him of his right to a unanimous jury. Although an election (or a Petrich instruction) was necessary to clarify that the State was charging eight counts, one for each bison, the State was not required to be as specific in time and place as Shoop argues regarding each charge. Acts leading to starvation or dehydration are best characterized as a continuing course of conduct because they are “series of actions intended to secure the same objective . . . rather than several distinct acts.” Fiallo-Lopez, 78 Wn. App. at 724. Starvation, for example, would rarely be a consequence of one distinct action; rather, it would be 5 Additionally, because the number of charges was very specific, Shoop overstates the possibility of confusion to a rational juror. For a juror to drift away during deliberations from the direct statements made at the outset of the trial by both the trial court and the State and assume that the charges could be related to multiple acts on a single bison, the juror would have to view it as a mere coincidence that the case involved eight charges and eight bison. Such a specific number of charges exactly matching the specific number of bison makes this speculation highly unlikely. 12 No. 54197-1-II (Consol. with 55147-1-II) a series of actions (or inactions) that culminates in the final result of an unhealthy animal. A commonsense evaluation of the facts reveals that these charges were based on a continuing course of conduct. The State presented evidence of starvation and dehydration of the bison over time, establishing one continuing offense rather than several distinct acts. Each charge pertained to one continuous course of conduct, per bison, over a time period of six months. When a Petrich instruction is required, it provides necessary clarity when one charge could potentially apply to multiple acts or when multiple acts could potentially apply to one charge. See Kitchen, 110 Wn.2d at 411. Neither is present here. The rationale for requiring an election or a Petrich instruction is minimizing confusion about the jury’s verdict and ensuring its deliberations are consistent with requirement for unanimity. Here, the repetition with which the jury was told that there were eight counts, one for each bison, ensured there was no confusion with this verdict. Moreover, because the crimes were charged as a continuing course of conduct, a Petrich instruction requiring precision as to a specific act of animal cruelty was not required. Therefore, we hold that there was no error in the failure to give a Petrich instruction in this case. CONCLUSION We hold that RCW 16.52.205(2)(a) is not an alternative means statute but rather proscribes means within the means. We further hold that there was no error in the failure to give a Petrich instruction. Accordingly, we affirm Shoop’s conviction. 13 No. 54197-1-II (Consol. with 55147-1-II) A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered. ADDITIONAL FACTS I. REQUEST FOR EVALUATION OF BISON Prior to the second trial, Shoop requested funds for a physical examination of the bison.6 Shoop argued that an examination was necessary to rebut testimony from the State regarding the condition of the animals when they were seized over a year prior. Over the course of about four months, the trial court held approximately eight hearings during which Shoop’s request for an evaluation of the bison was addressed, including discussions of whether such an evaluation would lead to relevant evidence, the logistical and financial difficulties associated with the evaluation, and safety concerns. At one hearing, the trial court questioned whether an examination of the bison in their current state would be relevant to the starvation of the bison at the time of the seizure. Defense counsel replied that an evaluation might generally reveal “[w]hat condition are the animals in; do they have any lasting physical impairments that relate to this case that were not recovered from; [and] are they alive.” 4 RP at 747. And defense counsel generally argued that an evaluation might result in information that would challenge the State’s evidence about the condition of the bison when they were seized. But defense counsel could not point to any specific evidence an evaluation might uncover. 6 During the course of the proceedings, up until just before the second trial, the bison were being cared for by third-party animal care facilities, including Central Valley Animal Rescue. 14 No. 54197-1-II (Consol. with 55147-1-II) Shoop subsequently requested that the trial court order Central Valley Animal Rescue, the facility where the bison were being held, to make their premises available and provide equipment for evaluation of the animals. The State responded that Central Valley was unable to comply with Shoop’s request due to significant logistical issues and costs, as well as dangers associated with evaluating the bison. Additionally, Central Valley did not possess the equipment necessary to conduct an evaluation. A witness from Central Valley testified that it would be extremely dangerous for someone to approach the bison for an evaluation and any evaluation of the bison would likely require sedation along with the construction of chutes to contain the animals. The witness estimated that it would cost $30,000 to construct the chutes. Although the bison had been evaluated when they were initially seized during the time the bison were sick and weak, safely conducting an evaluation when they were healthier would be much more difficult. The possibility of tranquilizing the bison with anesthetic darts was discussed. The State noted that it had asked Central Valley about that option and had been told that, while a dart gun might be available, it had never been used because of the high risk of shooting an animal in the wrong spot and killing or angering it. When asked again by the trial court to explain the relevance of an evaluation of the bison, defense counsel maintained that it was difficult to say what relevant information an evaluation would uncover because an evaluation had not yet occurred. The trial court concluded that although it would not hesitate to grant the request if it was dealing with a smaller animal, it was not reasonable to grant the request because of the differences with bison and the logistical issues and expenses involved. If Shoop wanted an evaluation of the 15 No. 54197-1-II (Consol. with 55147-1-II) bison, the trial court said he would have to present a different means of doing so. The trial court provided Shoop with additional time to find alternatives to evaluate the bison. A month and a half later, another hearing was held regarding the request for an evaluation of the bison. Defense counsel again failed to present the trial court with any new options but still requested the trial court provide the funds for an evaluation. The trial court again denied the request, deciding that the defense remained unable to offer a reasonable means for conducting an evaluation and there was almost no chance that an evaluation of the bison would lead to relevant evidence. II. RESTITUTION HEARING At a restitution hearing following Shoop’s conviction, the State requested that Shoop be ordered to pay $74,312.54 to Central Valley for costs incurred in caring for the seized bison. In support of its request, the State presented an itemized list of costs from Central Valley accompanied by a declaration along with testimony from Central Valley employees. The request included the cost of care for the calf that was born after the animals were seized. Shoop objected to the inclusion of costs associated with caring for the calf, arguing that because the calf was not the subject of any of the animal cruelty charges, he should not be required to pay for costs related to it. Shoop also objected to the legal fees Central Valley had to pay in order to sell the bison. Otherwise, Shoop made no objection to the State’s request for reimbursement to Central Valley for the care of the animals. The trial court determined that the total amount requested by Central Valley was reasonable. The trial court found that “the [calf] was a reasonable foreseeable consequence of this entire incident” and that the legal costs were reasonable because Central Valley encountered legal 16 No. 54197-1-II (Consol. with 55147-1-II) complications when it attempted to sell the bison. RP (Aug. 14, 2020) at 35. The trial court ordered Shoop to pay the entire amount requested to Central Valley. ANALYSIS I. REQUEST FOR FUNDS FOR EXPERT EVALUATION Shoop disputes the trial court’s decision to deny his request for public funds to pay for an examination of the bison. Shoop argues that this failure to fund his request constitutes a denial of his right to an effective defense. We disagree. A. LEGAL PRINCIPLES The Sixth Amendment to the U.S. Constitution and article I, section 22 of the Washington Constitution guarantee a defendant the right to effective assistance of counsel. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). This right includes a right to expert assistance necessary for an adequate defense. In re Pers. Restraint of Lord, 123 Wn.2d 296, 326, 868 P.2d 835 (1994); City of Mt. Vernon v. Cochran, 70 Wn. App. 517, 522, 855 P.2d 1180 (1993) (“As part of an indigent defendant’s constitutional right to effective assistance of counsel, the State must pay for expert services, but only when such services are necessary to an adequate defense.”). “Whether expert services are necessary for an indigent defendant’s adequate defense lies within the sound discretion of the trial court and shall not be overturned absent a clear showing of substantial prejudice.” State v. Young, 125 Wn.2d 688, 691, 888 P.2d 142 (1995); see also State v. Mines, 35 Wn. App. 932, 935-36, 671 P.2d 273 (1983) (the determination of whether expert services are necessary for the constitutional right to effective assistance of counsel is governed by CrR 3.1 and therefore is within the sound discretion of the trial court). 17 No. 54197-1-II (Consol. with 55147-1-II) B. APPLICATION About a year after the initial seizure of the bison, Shoop maintained that he needed funds for an evaluation of the bison to rebut testimony offered by the State about the condition of the bison when they were seized. The State countered that an examination was unreasonable because of the risk and expense and also argued that an examination would not lead to relevant evidence because of the delay between the seizure and the potential examination. Over the course of multiple hearings, the trial court took evidence on the difficulties, dangers, and expense of examining the bison. The trial court also gave Shoop multiple opportunities to propose an alternative examination method that could address some of the more extreme difficulties and dangers associated with examining the bison. Shoop was unable to articulate what specific and relevant information an examination might uncover and make any different suggestions. Following these multiple opportunities, the trial court ultimately denied Shoop’s request for funds finding that there was an insufficient showing of the potential relevant evidence considering the significant cost and potential risk to life. Under these facts, Shoop has failed to support his assertion that examination of the bison was necessary to ensure an adequate defense, much less to show that he was substantially prejudiced by the trial court’s decision. The trial court properly based its decision on a determination that the evaluation was not likely to lead to relevant information and, therefore, not necessary to an adequate defense. Because the trial court did not abuse its discretion in this decision, Shoop’s right to an adequate defense was not denied. 18 No. 54197-1-II (Consol. with 55147-1-II) II. PROSECUTORIAL MISCONDUCT During closing argument, the State told the jury that it did not need to agree on the specific mechanism of starvation, it just needed to agree that starvation had in fact occurred. Shoop did not object to this statement. On appeal, Shoop argues that these comments misstated the law and, therefore, the State committed prosecutorial misconduct. We disagree. In a prosecutorial misconduct claim, the defendant bears the burden of showing that the prosecutor’s conduct was improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). A misstatement of the law by the prosecutor is improper. State v. Allen, 182 Wn.2d 364, 373, 341 P.3d 268 (2015). Where a defendant did not object at the trial court level, any error regarding prosecutorial misconduct is deemed to have been waived unless the misconduct was “so flagrant and ill intentioned that [a jury] instruction could not have cured the resulting prejudice.” Emery, 174 Wn.2d at 760-61. RCW 16.52.205(2)(a) criminalizes starvation of animals through criminal negligence that causes substantial and unjustifiable physical pain. As explained above, because we have concluded that this crime is a course of conduct crime, the jury was not required to agree on a specific act that caused the starvation. A jury is simply required to find that criminal negligence resulted in starvation. Indeed, Shoop fails to provide any authority that the statute demands the State prove with precision the exact mechanism of starvation—especially where, as here, the jury found that Shoop’s conduct over a period of six months caused the starvation. Thus, the State did not misstate the law when it told the jury that it did not need to agree on the precise means of starvation. Without a misstatement of the law, there was no improper conduct, and we determine that the State did not commit prosecutorial misconduct. 19 No. 54197-1-II (Consol. with 55147-1-II) III. RESTITUTION ORDER Shoop next challenges the trial court’s order on restitution. Shoop argues that the trial court awarded an unreasonable amount of restitution and he should not be required to pay restitution for the calf that was born after the animals were seized. We disagree. A. LEGAL PRINCIPLES Defendants convicted of animal cruelty “shall be liable for reasonable costs incurred pursuant to this chapter by law enforcement agencies, animal care and control agencies, or authorized private or public entities involved with the care of the animals.” RCW 16.52.200(6). “Reasonable costs include expenses of the investigation, and the animal’s care, euthanization, or adoption.” RCW 16.52.200(6). If a restitution award is disputed, it must be supported by a preponderance of the evidence. State v. Deskins, 180 Wn.2d 68, 82, 322 P.3d 780 (2014). “ ‘While the claimed loss need not be established with specific accuracy, it must be supported by substantial credible evidence.’ ” Id. (internal quotation marks omitted) (quoting State v. Griffith, 164 Wn.2d 960, 965, 195 P.3d 506 (2008)). “ ‘Evidence supporting restitution is sufficient if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture.’ ” Id. at 82-83 (internal quotation marks omitted) (quoting State v. Hughes, 154 Wn.2d 118, 154, 110 P.3d 192 (2005), overruled on other grounds). B. APPLICATION Shoop appears to make two arguments regarding the restitution award. First, he argues that the trial court awarded an unreasonable amount of restitution because Central Valley did not need to care for the bison for 18 months but, instead, should have sold the bison much earlier. 20 No. 54197-1-II (Consol. with 55147-1-II) Second, Shoop argues that he should not be required to pay restitution for the calf that was born after the animals were seized. Because the calf was not subject to any of the eight charges and would have been “born regardless of the crime,” Shoop argues that there was no causal connection of the calf to the offenses such that restitution for its care should be imposed. Second Br. of Appellant at 5. Both arguments fail. First, we decline to address Shoop’s argument about the duration of Central Valley’s care. At the restitution hearing, Shoop did not object to the overall amount for care of the bison; he limited his objection solely to payments related to the newborn calf. As a result, Shoop’s argument as to the duration of care has not been preserved. See RAP 2.5. Second, although preserved below, Shoop’s argument related to the newborn calf also fails. Because the mother of the calf was pregnant when she was seized, caring for the mother would necessarily include caring for the calf. Considering these natural consequences of seizing a pregnant female bison, there was ample connection of the calf-related expenses to the crimes, and there was sufficient evidence that ordering restitution related to the expenses was reasonable. Accordingly, we affirm the trial court’s restitution order. IV. STATEMENT OF ADDITIONAL GROUNDS Shoop raises additional issues in his statement of additional grounds (SAG) including arguments relating to witness credibility, the trial court’s denial of his motion to change venue, his request for an appointment of a new attorney, and ineffective assistance of counsel. We disagree with, or decline to address, each of them. 21 No. 54197-1-II (Consol. with 55147-1-II) A. MOTION TO CHANGE VENUE Shoop claims that the trial court erred in denying his request for a change of venue due to pretrial publicity. We disagree. “Adverse pretrial publicity can create a presumption in a community that jurors’ claims that they can be impartial should not be accepted, and the totality of the circumstances is examined to decide whether such a presumption arises.” State v. Jackson, 150 Wn.2d 251, 269, 76 P.3d 217 (2003). A defendant must show that pretrial publicity has created a probability of unfairness. Id. However, the relevant question in making a change of venue determination is not whether the jurors were aware of the case, but whether the jurors were able to impartially judge the guilt of the defendant. Id. We review a trial court’s decision to grant or deny a motion for a change of venue for an abuse of discretion. Id. Prior to trial, Shoop filed a motion for change of venue due to the local media coverage of his case. The State opposed the motion, maintaining that the media coverage had not been inflammatory and the only media coverage had been several news articles, with the last article having been published more than six months prior. The State argued that increasing the pool of prospective jurors could cure any potential issues with juror familiarity and the population of the area from which jurors were drawn (30,000) was sufficiently large to seat an impartial jury. Moreover, the State noted that government officials had not been involved in the publicity and the severity of the crimes was lower since it did not involve crimes against a person. The trial court agreed with the State and denied the motion to change venue finding that Shoop had failed to show good cause to grant the motion. 22 No. 54197-1-II (Consol. with 55147-1-II) Shoop fails to raise any additional arguments or analysis about how the trial court’s decision was an abuse of discretion. Accordingly, his challenge fails. B. REQUEST FOR APPOINTMENT OF NEW ATTORNEY Shoop claims that the trial court erred in denying his request for a new defense attorney. We review a trial court’s refusal to appoint new counsel for an abuse of discretion. State v. Lindsey, 177 Wn. App. 233, 248, 311 P.3d 61 (2013). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. Id. at 248-49. “In assessing the trial court’s decision, we look at (1) the extent of the conflict between attorney and client, (2) the adequacy of the trial court’s inquiry into that conflict, and (3) the timeliness of the motion for appointment of new counsel.” Id. at 249. Ten days before the then scheduled second trial was to start, defense counsel made a motion, on behalf of Shoop, that he be removed as counsel based on Shoop’s claim that there was a breakdown in the attorney-client relationship. Defense counsel explained that Shoop believed that he had failed to inform Shoop of his speedy trial rights, and as a result, the trial had been set 8 days outside the 90-day speedy trial deadline. Defense counsel said he had received “an impassioned phone call” from Shoop a couple of days prior regarding his dissatisfaction with counsel over this speedy trial issue. 4 RP at 740. Although defense counsel conceded that there had been “at least—to some degree” a breakdown in the relationship, he also made it clear the motion was made on behalf of Shoop and he was not necessarily joining in the request. 4 RP at 741. The trial court determined that there was an insufficient basis to grant Shoop’s motion. The trial court questioned the accuracy of defense counsel’s calculation of the speedy trial issue, 23 No. 54197-1-II (Consol. with 55147-1-II) but even if there was an eight day delay, the trial court determined that such a minor issue could not lead to a total breakdown in the attorney-client relationship such that new counsel was justified. The trial court also noted that Shoop had become angry in the past and there was no basis to discharge defense counsel and appoint a new lawyer unfamiliar with the case and the circumstances of the first trial. Moreover, the trial court noted that any appointment of a new attorney would result in further delays—and delays were the source of Shoop’s complaints. Shoop has failed to show that the trial court abused its discretion under the three factors. First, the extent of the conflict appeared to be solely related to an angry phone call from Shoop to defense counsel about his trial date being arguably eight days outside the date required by speedy trial rules. But, as the trial court pointed out, Shoop had become angry in the past. Importantly, defense counsel did not expressly join the motion, only characterizing the breakdown of the relationship as being of “some degree”—far short of a “total breakdown.” 4 RP at 741-42. Given that defense counsel had a lengthy relationship with Shoop, having already represented him in the first trial, and that counsel did not join the motion, the trial court’s conclusion that the conflict fell short of a total breakdown in the attorney-client relationship was reasonable. Second, when presented with the issue, the trial court inquired of defense counsel of the nature and scope of the conflict. Because the conflict was related to a trial scheduling issue, the trial court’s inquiry, while limited, was adequate. Third, the timing of the request was problematic. The request was made after the first trial had been completed and just ten days prior to the then set date for the second trial. Dismissal of defense counsel at that late stage would have likely restarted the clock for time for trial, necessitated a continuance, and been detrimental to both parties. Because the factors weighed 24 No. 54197-1-II (Consol. with 55147-1-II) against granting Shoop’s request for appointment of a new attorney, we find that the trial court did not abuse its discretion in denying this request. C. INEFFECTIVE ASSISTANCE OF COUNSEL Shoop also appears to argue throughout his SAG that he was denied ineffective assistance of counsel for various reasons. We disagree with each of them. Prevailing on an ineffective assistance of counsel claim requires the defendant to show: (1) deficient performance and (2) prejudice to the defendant. Grier, 171 Wn.2d at 32-33. Counsel’s performance is deficient if it falls below an objective standard of reasonableness. Id. at 33. We engage in a strong presumption that counsel’s performance was reasonable. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). A defendant may overcome this presumption by showing “ ‘no conceivable legitimate tactic explaining counsel’s performance.’ ” Grier, 171 Wn.2d at 33 (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)). Shoop claims that defense counsel improperly prevented bone marrow results from being admitted. It appears from the record that Shoop is referring to defense counsel’s motion in limine that prevented the State from bringing in evidence of bison carcasses on Shoop’s property. Defense counsel argued that the carcasses of these bison were only marginally relevant to the issue of starvation because the bone marrow of the animals had not been “tapped into,” indicating that they had not starved. 1 RP at 27. Because the evidence of dead bison could have hurt Shoop more than the bone marrow evidence would have helped him, Shoop cannot overcome the presumption that defense counsel’s decision to file a motion in limine regarding the carcasses was reasonable. Shoop next claims that defense counsel failed to properly challenge “false” testimony that he was not providing adequate food and water to his animals. However, looking at the record as 25 No. 54197-1-II (Consol. with 55147-1-II) a whole, defense counsel was zealous in his representation and consistently challenged the State’s arguments that Shoop was providing inadequate food and water to his animals. Because the record does not support his claims, Shoop fails to rebut the strong presumption of effective representation. Therefore, defense counsel was neither deficient generally nor for allegedly failing to challenge certain testimony. D. ADDITIONAL ARGUMENTS Shoop raises additional arguments that either fail or we decline to address. Shoop claims that the testimony offered by two of the State’s witnesses was false and questioned the credibility of additional statements made by another witness. “Credibility determinations are reserved for the trier of fact, and an appellate court ‘must defer to the [trier of fact] on issues of conflicting testimony, credibility of witnesses, and persuasiveness of the evidence.’ ” State v. Rafay, 168 Wn. App. 734, 843, 285 P.3d 83 (2012) (alteration in original) (quoting State v. Liden, 138 Wn. App. 110, 117, 156 P.3d 259 (2007)). We decline to review Shoop’s claims because they are requests for this court to make credibility determinations. Shoop contends that the State should not have been permitted to charge him with animal cruelty for the bison that was not seized. He also claims that defense counsel was ineffective for failing to inform the trial court that not all of the animals on Shoop’s property for which he was charged with animal cruelty were seized. However, RCW 16.52.205(2)(a) does not require that an animal be seized for a charge to be brought under the statute. Therefore, we determine that this argument fails. 26 No. 54197-1-II (Consol. with 55147-1-II) Shoop claims that the State failed to provide sufficient evidence of either suffocation or dehydration. As explained above, because RCW 16.52.205(2)(a) is not an alternative means statute, the State was not required to present evidence of either suffocation or dehydration so long as there was sufficient evidence of at least one of the means included within the subsection. And Shoop makes no argument that there was insufficient evidence of starvation. Therefore, we determine that this argument fails. Shoop raises claims related to his first trial. He claims that the jury failed to properly follow the instructions of the trial court and the State improperly failed to provide the defense with results of blood tests until the end of his first trial. It is not evident what bearing these issues that arose during the first trial have on review of Shoop’s convictions in the second trial. Therefore, we decline to address these issues because Shoop fails to “inform the court of the nature and occurrence of alleged errors.” RAP 10.10(c). Shoop claims that he was denied an opportunity to testify. Shoop claims that his counsel was ineffective for failing to present evidence that would have aided his case and he was improperly prevented from making statements to the press. To the extent not discussed above, each of these claims involves facts and evidence not in the record, so we decline to address them.7 CONCLUSION The trial court did not abuse its discretion in denying Shoop’s request for funds for an expert evaluation of the bison, and the State did not commit prosecutorial misconduct during its closing argument. Additionally, we determine that there was sufficient evidence to support the 7 We acknowledge, however, that these claims could possibly be raised in a personal restraint petition. See RAP 16.4. 27 No. 54197-1-II (Consol. with 55147-1-II) restitution order. The remainder of Shoop’s arguments also fail. Accordingly, we affirm Shoop’s convictions along with the restitution order. PRICE, J. We concur: WORSWICK, P.J. LEE, J. 28

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