State v. Jallow

480 P.3d 464

STATE of Washington, Respondent,

v.Abdoul Aziz JALLOW, Appellant.

No. 79417-5-I

Court of Appeals of Washington, Division 1.

FILED February 16, 2021

PUBLISHED OPINION

Mann, C.J.

¶1 Abdoul Jallow appeals his conviction of two counts of animal cruelty in the first degree. He contends that (1) the evidence was insufficient to convict him of animal cruelty, (2) the to-convict instruction omitted the element of causation, thus relieving the State of its burden of proof, and (3) because animal cruelty is an alternative means crime, violation of the unanimous jury verdict requires reversal of one of the animal cruelty convictions. We agree that the to-convict instruction was insufficient, and reverse.¹

I. FACTS

¶2 After receiving a report concerning the condition of sheep and goats on a property outside of Marysville on October 19, 2016, animal control officer Chad Davis conducted a welfare check on the animals. On his first visit to the property, Davis observed several sheep and goats that had quality hay and water. Davis made two other undocumented stops where he observed hay from the road.

¶3 Davis's next documented visit was on November 14, 2016. Davis observed that there was no food or water available to the animals, although there were some remnants of hay visible. Davis saw a sheep lying on its side, appearing lifeless. Upon closer inspection, Davis confirmed the sheep was deceased. Davis saw another sheep lying inside the shed that would not get up and come to the fence with the other animals.

¶4 Davis tracked down the owner of the property using a license plate provided by a neighbor, which associated with a nearby residence. Davis went to the residence and spoke with Jallow's wife, explaining that one of the sheep needed immediate medical attention, and another sheep was deceased. She informed Davis that Jallow was out of the state. Davis left a voicemail for Jallow informing him of the condition of the animals. Davis did not seize the carcass or enter the property because he did not have a warrant.

¶5 On December 5, 2016, Davis responded to another report from Jallow's neighbor. The neighbor had taken a tan female sheep from the field and wrapped it in a blanket. The sheep appeared lifeless and could not hold up its head. Davis took the tan female sheep to a veterinarian immediately.

¶6 The veterinarian, Dr. Tim Cuchna, found that the sheep was breathing, but was nonresponsive to stimulation. Dr. Cuchna determined that the sheep was hypothermic, because its "body condition was very poor, resulting in it not being able to maintain its body temperature ... it was wet." He explained that not having enough food can result in the low temperature. On a scale of 1 to 5, where 1 is severely emaciated and 5 is an extremely obese animal, Dr. Cuchna rated the sheep as "a 1 at most." Dr. Cuchna opined that the tan female sheep had not been getting enough nutrition "over a fair amount of time." He also determined that the sheep was moderately dehydrated and suffering from parasites. Dr. Cuchna opined that the sheep's poor health was a result of both parasites and poor nutrition, and he performed a humane euthanasia on the sheep.

¶7 Davis left another voicemail for Jallow, explaining that he had one of the sheep at the vet, and that Jallow needed to contact him immediately. When Davis spoke to Jallow, he informed him that the sheep had been euthanized. Jallow told Davis that his cousin, Sheriff Jabang, would sell the other animals.

¶8 Davis returned to Jallow's field on December 6, 2016, and observed that the animals had no food or access to water, as the trough was iced over. He fed them with food he had brought from his personal barn and broke the ice. He examined a goat and a sheep, and determined that the goat was emaciated. Davis posted an orange 3x5 card instructing the owner to contact him immediately. Davis returned the next two days to provide food and water to the animals, as there was no food out for them and the water iced over again. He attempted to contact Jallow but was unsuccessful.

¶9 On December 9, 2016, Davis returned with a search warrant to seize the animals. He discovered that a small brown sheep that had been alive the previous day was now deceased.

¶10 Davis took the deceased small brown sheep, and seized a live goat and three live sheep. Davis took the animals to the veterinary hospital, where Dr. Travis McKinzie examined them. Dr. McKinzie determined that the goat was likely anemic, had an elevated heart rate, and was very thin. He determined that the first living sheep was a body condition 3, on a scale of 1 to 9, with 1 being severely emaciated and 9 being extremely obese. The second sheep was also a 3 out of 9 on the body condition scale, and its mucous membranes were slightly pale, which can indicate anemia. The third sheep was a 3 ½ to 4 on the body condition scale.

¶11 Dr. McKinzie examined the deceased small brown sheep and determined that it was between a 1 and 1-1/2 on the body condition scale. Dr. McKinzie observed that the sheep had no solid content in its stomach and that there was evidence of parasites in the liver. He determined that the sheep's case of death was malnutrition, resulting from a combination of disease causing the loss of nutrition, and the lack of adequate nutrition coming in. He opined that if an animal is receiving adequate nutrition, parasites are less likely to be an issue, or be fatal. Dr. McKinzie concluded that if the group of animals had limited access to feedstuff, the larger animals would take as much as they could, fighting off and excluding the smaller animals.

¶12 Jallow was charged with three counts of first degree cruelty to animals and one count of bail jumping.² The small brown sheep formed the basis for count 1, and the tan female sheep formed the basis for count 3.³ At trial, Jallow testified that he owned the animals, he fed them every morning, and he never went two days without checking on the animals. Jallow said that he left on an extended trip to Arizona in October 2016, and arranged for Jabang to care for the animals.

¶13 Jallow said that after Davis originally contacted him in November, and his wife contacted him, he checked in with Jabang and confirmed that he was caring for the animals. Before leaving, Jallow had no concerns about leaving the animals in Jabang's care. He testified that "I was under the impression that they were in good hands until I found out that they were not."

¶14 Because Davis continued contacting him, Jallow testified that he attempted to sell the animals via Craigslist. He relied on Jabang to execute the sale and believed that Jabang sold the animals. When Jallow learned that no sale occurred, he then posted the animals on Craigslist for free. Jallow testified that he cut his trip short because of the animals. He returned from his trip the morning of December 8, 2016, but he did not visit the field until the evening of December 9, 2016.

¶15 Jabang testified that he gave the animals food and water but he was unsure how long Jallow was gone. He testified that Jallow called him to take care of the deceased sheep in November but that his truck broke down and he was unable to remove the deceased sheep. Jabang did not remember how many times he went to the field to care for the animals, but maintained that when the animals were under his care, they were always well fed and watered.

¶16 A jury convicted Jallow of first degree cruelty to animals on count 1 (small brown sheep) and count 3 (tan female sheep), and of bail jumping. Jallow appeals.

II. ANALYSIS

A. To-Convict Instruction

¶17 Jallow argues first that he was denied due process because the to-convict instruction for animal cruelty omitted an essential causation element: "as a result causes" the animal to suffer or die.

¶18 This court reviews to-convict jury instructions de novo. State v. Fisher, 165 Wn.2d 727, 754, 202 P.3d 937 (2009). A jury instruction is sufficient if it correctly states the law, is not misleading, and permits counsel to argue their theory of the case. State v. Mark, 94 Wn.2d 520, 526, 618 P.2d 73 (1980). The jury instructions must inform the jury that the State bears the burden of proving every essential element of a criminal offense beyond a reasonable doubt. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995). A to-convict instruction must contain all of the essential elements of the crime because it serves as "yardstick" for the jury to measure innocence or guilt. State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997). Failure to instruct the jury on all essential elements relieves the State of its burden of proving every element of the crime beyond a reasonable doubt. In re Pers. Restraint of Caldellis, 187 Wn.2d 127, 136, 385 P.3d 135 (2016). "This is reversible error unless the court is convinced, beyond a reasonable doubt, that the error did not contribute to the verdict." Caldellis, 187 Wash.2d at 136, 385 P.3d 135.⁴

¶19 There is no pattern jury instruction for the crime of animal cruelty. As a result, trial courts should use the language of the statute, where the law governing the case is expressed in the statute, when instructing the jury. State v. Hardwick, 74 Wn.2d 828, 830, 447 P.2d 80 (1968). RCW 16.52.205(2) 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.

(Emphasis added).

¶20 "Elements of a crime are the constituent parts of a crime, usually consisting of conduct, knowledge, and causation." Caldellis, 187 Wash.2d at 136, 385 P.3d 135 (citing Fisher, 165 Wash.2d at 754, 202 P.3d 937). Washington case law recognizes the statutory elements of a crime as essential elements. Fisher, 165 Wash.2d at 754, ...