Filed
Washington State
Court of Appeals
Division Two
October 8, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50800-1-II
Respondent,
PUBLISHED OPINION
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
No. 50800-1-II
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
1
Wilson also argues that the to-convict instruction was erroneous. However, Wilson did not
object to this instruction at trial and he does not allege a manifest constitutional error. Therefore,
we do not address this argument under RAP 2.5(a).
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No. 50800-1-II
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.
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No. 50800-1-II
The jury found Wilson guilty of first degree animal cruelty. Wilson appeals his
conviction.
ANALYSIS
A. LEGAL PRINCIPLES – DEFENSE OF ANIMAL
RCW 16.52.205(1) states that a person is guilty of first degree animal cruelty when,
“except as authorized in law,” he or she among other things inflicts substantial pain on or causes
physical injury to an animal. Wilson was charged with violation of this statute.
RCW 16.08.020 authorizes a person to kill a dog under certain circumstances.
It shall be lawful for any person who shall see any dog or dogs 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, or on any public highway, to kill such dog or dogs.
No published Washington case has interpreted this statute.
Apart from the statute, a person has a common law right to kill an animal to defend his or
her property. State v. Burk, 114 Wash. 370, 371, 195 P. 16 (1921). In Burk, the defendant was
charged with unlawfully killing two elk that were in the act of destroying his crops. Id. The
Supreme Court held that the defendant had a constitutional right to kill the elk as long as the
killing was reasonably necessary to protect his property. Id. at 375-76. The court referred to its
holding as the “reasonable necessity rule.” Id. at 378.
In Drolet v. Armstrong, a civil case, the owner of two dogs sued the defendant for killing
two of his bird dogs that were in the act of killing the defendant’s chickens. 141 Wash. 654,
654-55, 252 P. 96 (1927). The Supreme Court, relying on Burk, held that “a person has a natural
right to defend and protect his domestic fowls and, in doing so, may kill dogs engaged in injuring
and destroying them, if there is reasonable and apparent necessity therefor.” Id. at 655-56. A
concurring opinion expressed the view that the majority did not need to invoke the constitutional
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No. 50800-1-II
defense discussed in Burk because the predecessor statute to RCW 16.08.020 made it lawful to
kill the dogs. Id. at 658-59 (Fullerton, J., concurring).
More recently, the Supreme Court addressed the killing of animals to protect property in
State v. Vander Houwen, 163 Wn.2d 25, 177 P.3d 93 (2008). The State charged the defendant
with killing several elk that had caused substantial damage to his orchards. Id. at 29-31. The
trial court rejected the defendant’s proposed jury instructions stating that a person who kills an
elk in defense of property is not guilty if the killing was reasonably necessary. Id. at 31. The
court reversed, holding that the instructions approved in Burk “continue to be a correct statement
of law and should have been given to the jury.” Id. at 33. The court stated that the defendant
had a constitutional right to kill the elk to protect his property if the killing was reasonably
necessary. Id. at 36.
B. MOTION TO DISMISS
Wilson argues that the trial court erred in denying his motion to dismiss because as a
matter of law, RCW 16.08.020 applied under the facts of this case and provided a defense to the
animal cruelty charge. We disagree.2
CrR 8.3(c) allows a defendant to “move to dismiss a criminal charge due to insufficient
evidence establishing a prima facie case.” The motion must be “supported by an affidavit or
declaration alleging that there are no material disputed facts and setting out the agreed facts.”
2 Initially, the State argues that a ruling on a motion to dismiss under CrR 8.3(c) is not
reviewable under RAP 2.2(a). The State relies on authorities stating that a defendant may not
appeal as a matter of right from an order denying a motion to dismiss. E.g., State v. Knapstad,
107 Wn.2d 346, 357, 729 P.2d 48 (1986); State v. Brown, 64 Wn. App. 606, 612, 825 P.2d 350
(1992). But RAP 2.2(a) and the cited cases deal with interlocutory appeals. They do not state
that we cannot review a pretrial order as part of an appeal as a matter of right filed after a
conviction. RAP 2.4(a)-(b) allows us to review the trial court’s decision denying Wilson’s
motion.
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No. 50800-1-II
CrR 8.3(c)(1). “The court shall grant the motion if there are no material disputed facts and the
undisputed facts do not establish a prima facie case of guilt.” CrR 8.3(c)(3).
In order to establish a defense under RCW 16.08.020, the facts must show that the
defendant (1) saw a dog “chasing, biting, injuring or killing” (2) any “domestic animal”
belonging to the defendant (3) “on any real property owned or leased by, or under the control
of,” the defendant. RCW 16.08.020. The parties dispute whether the common law requirement
that the defendant’s action be reasonably necessary should be added to these statutory
requirements. But even without the reasonable necessity requirement, Wilson was not entitled to
a dismissal of the charges.
Here, Wilson submitted a declaration stating facts sufficient to establish that he saw
Dozer biting Little Bit. And as discussed below, the facts were sufficient for the trial court to
determine that a pet dog is a “domestic animal” for purposes of RCW 16.08.020. Wilson’s
declaration stated no facts showing that he owned, leased, or had control over the property where
the incident occurred. The declaration stated only that he was practicing at the club, and it did
not explain his relationship with the club property. Therefore, the declaration was insufficient to
establish that Wilson’s shooting of Dozer was lawful under RCW 16.08.020.
We hold that the trial court did not err in denying Wilson’s motion to dismiss under RCW
16.08.020.
C. FAILURE TO GIVE PROPOSED RCW 16.08.020 INSTRUCTION
Wilson argues that the trial court erred in not giving his proposed instruction based on
RCW 16.08.020. We agree.
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No. 50800-1-II
1. Standard of Review
In general, a criminal defendant is entitled to a jury instruction on his or her theory of the
case. State v. Henderson, 192 Wn.2d 508, 512, 430 P.3d 637 (2018). Specifically, the trial court
must give an instruction on a defense for which the State has the burden of proof if the evidence
supports application of that defense. See State v. Werner, 170 Wn.2d 333, 336, 241 P.3d 410
(2010) (addressing self-defense). However, a trial court does not err in refusing to give an
instruction that does not correctly state the law. State v. Gresham, 173 Wn.2d 405, 424, 269
P.3d 207 (2012). Jury instructions are sufficient if, viewed as a whole, they allow the defendant
to argue his or her theory of the case and accurately inform the jury of the applicable law. Id.
We generally review the trial court’s decisions on jury instructions for an abuse of
discretion. State v. Green, 182 Wn. App. 133, 152, 328 P.3d 988 (2014). But we review the trial
court’s refusal to give a requested instruction de novo if based on a ruling of law. State v.
Cordero, 170 Wn. App. 351, 369, 284 P.3d 773 (2012).
2. Statutory Requirements
Here, the trial court refused to give Wilson’s proposed instruction based on a ruling that
RCW 16.08.020 did not apply under the facts of this case. The parties do not dispute that there
was sufficient evidence of two of the requirements of RCW 16.08.020 – Wilson testified that he
saw Dozer biting his dog and Wilson provided at least some evidence from which it could be
inferred that he had control of the club property at the time of the shooting. But the trial court
ruled that a pet dog was not a “domestic animal” for purposes of the statute.3
3
By its terms, RCW 16.08.020 applies when a person kills a dog. Although Wilson did not kill
Dozer, the State does not argue that RCW 16.08.020 does not apply when the person merely
injures a dog if the statutory elements are present. Therefore, we do not address this issue.
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No. 50800-1-II
RCW 16.08.020 states that killing a dog is lawful if that dog is chasing, biting, injuring,
or killing a “domestic animal.” The statute does not define “domestic animal.” Nor do other
provisions in chapter 16.08 RCW that use the same term. But we may use a dictionary to
determine the plain meaning of an undefined statutory term. Nissen v. Pierce County, 183
Wn.2d 863, 881, 357 P.3d 45 (2015).
One dictionary definition of “domestic” is “belonging to or incumbent on the family.”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 671 (2002). Little Bit certainly belonged
to Wilson’s family. And Black’s Law Dictionary defines a “domestic animal” as “[a]n animal
that is customarily devoted to the service of humankind at the place where it normally lives, such
as a dog or cat.” BLACK’S LAW DICTIONARY 110 (11th ed. 2019) (emphasis added). Relying on
these definitions, we conclude that a pet dog is a “domestic animal” for purposes of RCW
16.08.020.
Wilson presented sufficient evidence at trial to support all three requirements of the RCW
16.08.020 defense. Therefore, the trial court erred in refusing to give Wilson’s proposed
instruction on this basis.
3. Reasonably Necessary Requirement
The State cites to Burk, Drolet, and Vander Howen to argue that RCW 16.08.020
provides a defense to shooting a dog only if a defendant also satisfies an additional common law
requirement consistent with Burk: that the shooting be “reasonably necessary” to protect the
shooter’s domestic animal. Therefore, the State suggests that Wilson’s proposed instruction was
not a correct statement of the law and that the trial court’s to-convict instruction – which
included a reasonably necessary requirement – correctly stated the law. We disagree.
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No. 50800-1-II
A “reasonably necessary” requirement cannot be treated as a fourth requirement for the
application of RCW 16.08.020 for two reasons. First, Burk, Drolet, and Vander Howen do not
address RCW 16.08.020 or its predecessor statutes. The court in Burk identified a constitutional
right to shoot animals to protect property, and imposed the “reasonably necessary” requirement
as a limitation on that right. Nothing in those cases suggest that this requirement can be grafted
onto a statutory defense to an animal cruelty charge.
Second, in interpreting a statute we must determine and give effect to the plain statutory
language. State v. Larson, 184 Wn.2d 843, 848, 365 P.3d 740 (2015). The plain language of
RCW 16.08.020 does not contain such a “reasonably necessary” requirement. The State argues
that without this requirement RCW 16.08.020 will be too broad. But we will not add language to
an unambiguous statute even if the legislature may have intended something else but failed to
express it adequately. State v. Chester, 133 Wn.2d 15, 21, 940 P.2d 1374 (1997).
We hold that the common law “reasonably necessary” requirement cannot be included
into the statutory defense to an animal cruelty charge based on RCW 16.08.020. Therefore, the
trial court’s refusal to give Wilson’s proposed RCW 16.08.020 instruction cannot be justified on
this basis.
4. Adequacy of To-Convict Instruction
The State suggests that the trial court’s failure to give Wilson’s RCW 16.08.020
instruction was harmless because the court’s to-convict instruction was adequate to allow Wilson
to argue his theory of the case: that he must be acquitted if his actions were in in the defense of
his dog. We disagree.
The to-convict instruction allowed the jury to convict Wilson only if the State proved that
his “actions were not in defense of his dog, and were not reasonably necessary.” CP at 31
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No. 50800-1-II
(instruction 3). As discussed above, the to-convict instruction introduced a reasonably necessary
requirement, which is not required to establish a defense under RCW 16.08.020. In addition,
RCW 16.08.020 does not require that the person shooting the dog must be acting in “defense” of
the domestic animal. The statute requires only that the person see the dog chasing or biting the
animal. The instruction essentially forced Wilson to argue a defense of “reasonable necessity,”
which is not required under RCW 16.08.020.
Accordingly, we conclude that the trial court’s error in refusing to give an instruction
based on RCW 16.08.020 was not harmless.
CONCLUSION
We reverse Wilson’s conviction and remand for further proceedings.
MAXA, C.J.
We concur:
LEE, J.
CRUSER, J.
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