Filed
Washington State
Court of Appeals
Division Two
April 7, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 52278-1-II
Respondent.
vs. PUBLISHED OPINION
LLEWELLYN ANDREW ROY,
Appellant.
MAXA, C.J. – Llewellyn Roy appeals his conviction of second degree animal cruelty.
Under RCW 16.52.207(2)(a)1, a person is guilty of second degree animal cruelty for “fail[ing] to
provide the animal with necessary shelter, rest, sanitation, space, or medical attention” and
causing unnecessary pain as a result.
Roy argues that RCW 16.52.207(2)(a) provides five alternative means of committing the
offense. Because the jury was instructed on all five means and was not instructed that jurors had
to be unanimous regarding one of the means, he claims that the State was required to present
sufficient evidence to support each means to sustain the conviction.
We hold that RCW 16.52.207(2)(a) provides only a single means of committing the
crime of second degree animal cruelty, and the five listed terms are merely different ways of
1
RCW 16.52.207 was amended in 2019. Because those amendments do not materially affect the
language relied on by this court, we cite to the current version of the statute.
No. 52278-1-II
committing that single means. And we hold that the State presented sufficient evidence to prove
one of the ways, failing to provide necessary medical treatment and thereby causing unnecessary
or unjustifiable physical pain to his animals. Accordingly, we affirm Roy’s conviction.
FACTS
On the evening of July 15, 2017, Roy was arrested on his way to the store and placed in
jail. At the time, he owned two mastiffs named Fausto and Azura, a bulldog named Mike, and
four parrots.
On July 19, Roy’s neighbor, Lisa Wesen, was concerned because she heard barking day
and night and noticed that Roy’s car had not been home for several days. After knocking on the
front door and finding no one home, she went to the back fence and saw the three dogs in the
backyard. Fausto was in a kennel on the back porch that was compacted with feces, and the dog
had nowhere to stand or lie down. Mike was on the back porch staring at the door and Azura
was by the fence barking. The mastiffs looked skinny, had red and goopy eyes, and did not look
healthy. Wesen and her husband brought food and water to the dogs and a neighbor shoveled out
the kennel. Wesen contacted Jennifer Krueger, an animal control officer for the City of
Centralia.
Krueger went to the jail and spoke with Roy and Roy asked her to contact his mother to
take care of the animals. When Roy’s mother declined to help, Krueger contacted Roy again and
he provided Krueger with a key to his home. Krueger also asked him to release the animals to an
animal shelter so they could get regular care.
Krueger went to Roy’s home with Kyle Stockdale, another animal control officer. Roy’s
home was very warm and smelled of urine and feces. The parrots had shredded newspaper that
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was strewn about the living room. One of the parrots had died. The cages were filthy and the
parrots had no food or water.
They found the dogs in the backyard. Krueger described the mastiffs:
They were very, very skinny. You could see every knob on their spine. They had
big sores on their elbows where they lay down. Their eyes were -- their eyelids
were very swollen with a condition called cherry eye. The female couldn’t even
hardly see out of her eyes, because the top and bottom lids were so swollen it was
just a little slit for her to see.
1 Report of Proceedings at 113. She described the mastiffs as being in bad shape and in pain.
Stockdale provided similar testimony. Both mastiffs eventually received medical treatment for
their cherry eye as well as for ear and skin infections.
The State charged Roy with first degree and second degree animal cruelty. At trial, the
State explained that the first degree charge pertained to the deceased parrot and the second
degree charge pertained to the mastiffs.
The to-convict instruction for second degree animal cruelty, tracking the language of
RCW 16.52.207(2)(a), required the State to prove that Roy “knowingly, recklessly, or with
criminal negligence failed to provide an animal with necessary shelter, rest, sanitation, space, or
medical attention.” Clerk’s Papers at 25. The trial court instructed the jury that it had to be
unanimous as to one act of second degree animal cruelty. The court did not instruct the jury that
it had to be unanimous regarding the particular ways of committing the crime listed in the to-
convict instruction.
The jury could not reach a verdict on first degree animal cruelty pertaining to the parrot
and found Roy guilty of second degree animal cruelty pertaining to the mastiffs. Roy appeals his
conviction.
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ANALYSIS
A. SECOND DEGREE ANIMAL CRUELTY AND ALTERNATIVE MEANS
Roy argues that RCW 16.52.207(2)(a) provides five alternative means of committing
second degree animal cruelty and that the State did not present sufficient evidence to prove each
means. We disagree.
1. Statutory Language
RCW 16.52.207(2)(a) provides:
An owner of an animal is guilty of animal cruelty in the second degree if, under
circumstances not amounting to first degree animal cruelty, the owner knowingly,
recklessly, or with criminal negligence:
(a) Fails to provide the animal with necessary shelter, rest, sanitation, space, or
medical attention and the animal suffers unnecessary or unjustifiable physical pain
as a result of the failure.
RCW 16.52.207(2)(a). RCW 16.52.207 identifies three other means of committing second degree
animal cruelty: knowingly, recklessly, or with criminal negligence inflicting unnecessary suffering
or pain on an animal, RCW 16.52.207(1)(a); abandoning an animal, RCW 16.52.207(2)(b); and
abandoning an animal when the animal suffers bodily harm or the abandonment creates a risk that
the animal will suffer substantial bodily harm, RCW 16.52.207(2)(c).
Roy claims that RCW 16.52.207(2)(a) identifies five alternative means for committing
the crime under that subsection: knowingly, recklessly, or with criminal negligence failing to
provide (1) shelter, (2) rest, (3) sanitation, (4) space, or (5) medical attention. The State argues
that subsection (2)(a) identifies only one means of committing animal cruelty, and that the
subsection merely provides five ways of committing that single means.
2. Alternative Means Doctrine
An alternative means crime is one where the applicable statute provides that the
proscribed criminal conduct can be proved in multiple ways. State v. Barboza-Cortes, 194
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No. 52278-1-II
Wn.2d 639, 643, 451 P.3d 707 (2019). As a general rule, the statute identifies a single crime and
states that the crime can be committed by more than one means. State v. Smith, 159 Wn.2d 778,
784, 154 P.3d 873 (2007). Determining whether a statute provides alternative means of
committing a crime is a matter of judicial interpretation. Barboza-Cortes, 194 Wn.2d at 643.
The alternative means determination relates to jury unanimity required under article I,
section 21 of the Washington Constitution. State v. Owens, 180 Wn.2d 90, 95, 323 P.3d 1030
(2014). For an alternative means crime, a defendant is entitled to a unanimous jury
determination as to the particular means by which he or she committed the crime. Id. If there is
no express statement of jury unanimity, the State must present sufficient evidence to support
each of the alternative means. Id. But if the statute identifies a single means of committing a
crime, unanimity is not required even if there are different ways of establishing that means. See
Barboza-Cortes, 194 Wn.2d at 643.
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. Sandholm, 184 Wn.2d 726, 734.
364 P.3d 87 (2015).
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.
Id.
Two other principles are relevant here. First, the use of a disjunctive “or” in a list of
ways of committing the crime does not necessarily mean that those ways are alternative means.
Owens, 180 Wn.2d at 96. For example, in Owens the Supreme Court held that seven terms
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No. 52278-1-II
stated in the disjunctive, read together, constituted a single means rather than seven alternative
means for trafficking in stolen property. Id. at 98.
Second, a statute that provides a means within a means does not identify an alternative
means crime. Smith, 159 Wn.2d at 783. “[W]here a disputed instruction involves alternatives
that may be characterized as a ‘means within [a] means,’ the constitutional right to a unanimous
jury verdict is not implicated and the alternative means doctrine does not apply.” Id.
3. Analysis
In Barboza-Cortes, the court addressed RCW 9.41.040(2)(a), which states that a person is
guilty of second degree possession of a firearm if the person “owns, has in his or her possession,
or has in his or her control any firearm” after having been previously convicted of certain
felonies. 194 Wn.2d at 646. The court held that this statute did not establish an alternative
means crime. Id. The court stated, “While there may be subtle distinctions in aspects of
ownership, possession, and control that may be material in other contexts, in the present
circumstances that all describe ways of accessing guns.” Id. Therefore, the terms were merely
“nuances inhering in” accessing guns and “facets of the same criminal conduct.” Id. (quoting
Sandholm, 184 Wn.2d at 734).
In Owens, the court addressed RCW 9A.82.050(1), which prohibits trafficking in stolen
property. 180 Wn.2d at 92. The statute provided that a person is guilty of trafficking if he or she
“ ‘knowingly initiates, organizes, plans, finances, directs, manages, or supervises the theft of
property for sale to others.’ ” Id. at 96 (quoting RCW 9A.82.050(1)). The court held that this
group of terms together identified a single category of criminal conduct – facilitating or
participating in the theft of stolen property. Id. at 98-99.
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No. 52278-1-II
Here, shelter, rest, sanitation, space, and medical attention represent different aspects of
the basic necessities for an animal’s comfortable life. They are not independent, essential
elements of the crime. Instead, they are “minor nuances inhering in the same act” and “facets of
the same criminal conduct.” Sandholm, 184 Wn.2d at 734. Read together, the listed terms
criminalize failing to provide an animal with basic necessities.
We conclude that RCW 16.52.207(2)(a) identifies a single means of committing second
degree animal cruelty: failing to provide an animal with the basic necessities of life and thereby
causing unnecessary or unjustifiable physical pain. RCW 16.52.207(2)(a) does not describe five
alternative means of committing that crime.
B. SUFFICIENCY OF THE EVIDENCE
Roy argues that his due process rights were violated because the State did not present
sufficient evidence to prove all of the means listed in RCW 16.52.207(2)(a) beyond a reasonable
doubt. But we have held above that RCW 16.52.207(2)(a) provides a single means of
committing second degree animal cruelty, not five alternative means. As noted above, if the
statute identifies a single means of committing a crime, unanimity is not required even if there
are different ways of establishing that means. See Barboza-Cortes, 194 Wn.2d at 643.
Therefore, the State had to prove only that Roy failed to provide both mastiffs with necessary
shelter, rest, sanitation, space, or medical attention.
Here, the State presented evidence that Roy failed to provide both mastiffs with medical
attention. Both dogs were emaciated, had sores on their elbows, and had cherry eye. Both
also exhibited pain when they moved. Both were later treated for the cherry eye as well as ear
and skin infections. And there was evidence that the mastiffs suffered unnecessary or
unjustifiable physical pain as a result of the failure to provide medical attention.
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No. 52278-1-II
We hold that the State provided sufficient evidence that Roy’s conduct amounted to second
degree animal cruelty under RCW 16.52.207(2)(a).
CONCLUSION
We affirm Roy’s conviction of second degree animal cruelty.
MAXA, C.J.
We concur:
SUTTON, J.
GLASGOW, J.
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State Of Washington v. Llewellyn Roy
Combined Opinion