### FILED DECEMBER 10, 2013 In the Office ofthe Clerk ofCourt W A State CourtofAppeals, Division III
INTHECOURTOF APPEALS OF THE STATE OF WASHINGTON DNISIONTHREE STATE OF WASHINGTON, ) No. 30883-9-III ) Respondent, ) ) 

### v. ) UNPUBLISHED OPINION ) CHERINAEVERMAN-JONES, ) also known as CHERINA 

### L. EVERMAN, ) ) Appellant. ) KULIK, J.

- CherinaEvennan-Jones appeals herconviction for second degree animal cruelty, arguingthetrial court erred in denying hermotion to suppress. She contends an animal control officer conducted an unlawful searchwhen she entered areas ofcurtilagenot opentothe public. And she arguesthatthe officer lacked authority to seize her dogwithout a warrantunderRCW 16.52.085 because there was no evidence the dog was in animmediate life-threatening condition. Finally, Ms. Evennan-Jones contends insufficient evidence supports herconviction andthatthetrial court erred in denying hermotionto arrestjudgment. We disagree with Ms. Evennan-Jones and affinn thetrial court.No.30883-9-II1 State 

### v. Everman-Jones
FACTS In August 2011, Nicole Montano, an animal control officer for Spokane County Regional Animal Protection Service (SCRAPS), was dispatched to a house on West Spring Road in Marshall, Washington, following a complaint about the condition ofa dog at that address. From the house's driveway, she could see a very thin dog tethered in the backyard. The dog's hip bones, ribs, and spine were prominently visible from that distance. She knocked at the front door, but got no answer. She then wentto the backyard to get a closer look at the dog. She observed "a completely emaciated dog" with no fat deposits and a loss ofmuscle mass. Report ofProceedings (RP) at 24. The top ofits skull was sunken in. The dog had water, but no food and no shelter. After examining the dog, OfficerMontano removed it. She explained at trial, "I had a completely emaciated dog, tethered in the yard. The emaciation was life threatening at the time which warranted the removal." RP at 25. She was also "concernedthat the dog
was dehydrated and would not be able to survive the elements. I did notknow when the
owner would be home." RP at 25-26. She took photographs ofthe dog and transported it to Legacy Animal Medical Center for evaluation. The State charged Ms. Everman-Jones

2No. 30883-9-III State 

### v. Everman-Jones by amended information withtwo counts offirst degree animal cruelty.1 Beforetrial, Ms. Everman-Jones filed a motion to return the dog and to suppress evidence and dismiss. She argued that OfficerMontano conducted an illegal search by "enteringthe areas ofthe curtilage whichwere obviously not impliedly opentothe public." CP at 18. She also argued thatthe officerviolated RCW 16.52.085, which only authorizes warrantless removal ofan animal when the animal is in an "immediate lifethreatening condition." CP at 19. Shemaintained that the dog was not in such condition
as evidenced by its ability to stand andjump on the officer's truck and the fact thatno emergency treatmentwas needed. The State responded thatthe dog was in "openview" and, therefore, Ms. EvermanJones had no expectation ofprivacy. Itpointed outthat the backyard was a wide open space without buildings, fences, ortrees and therefore OfficerMontano did not invade the curtilagewhen she wentto the backyard to check on the dog. Finally, the State argued

I Count I alleged in part, "Thatthe defendant, CHERINA L. EVERMAN-JONES, in the State ofWashington, on or about August 10,2011, did intentionally inflict substantial pain on an animal." Clerk's Papers (CP) at 160. CountII alleged in part, "Thatthe defendant, CHERINA L. EVERMAN-JONES, in the State ofWashington, on or about August 10,2011, did, with criminal negligence, starve an animal, which as a result caused substantial and unjustifiedphysicalpainthat extended for a period sufficientto cause considerable suffering." CP at 160. 3No. 30883-9-111 State 

### v. Everman-Jones
that OfficerMontano was entitled to remove the dog under RCW 16.52.085 because she believed the dog was in an immediate life-threatening condition. The trial court denied Ms. Everman-Jones's motionto suppress, concluding (1) the search was legal because the dog was kept chained in open view in her backyard, and (2) the dog was properly removed without a warrant under RCW 16.52.085 because "underthe totality ofthe circumstances the officer believedthe dog was in an immediate life-threatening condition." CP at 316. At trial, OfficerMontano testified to the events discussed above. She also stated that the dog weighed 67.5 pounds upon arrival at SCRAPS and ate "ravenously." RP at 32, 34. ByNovember 2011, the dog had gained 31 pounds. Dr. Mark Fosberg, a veterinarian for 30 years, testifiedthathe examinedthe dog and determined that it was "avery thin, emaciated dog. On a body score we scale a one to five, we found a one." RP at 73. Henoted "verythinmuscles overthe neck, the head, the shoulders, the back muscles, the pelvis and the rear legs." RP at 73. He attributed this severe muscle wastingto inadequate nutrition. Dr. Fosberg explained thatthe dog, an adult Great Dane mix, shouldhave weighed between 100 and 140 pounds. He opined that the emaciation was due to starvation and that the dog was experiencing "[m]oderate to severe" pain as a result ofthe starvation. RP at 82.
4No.30883-9-II1 State v. Everman-Jones
After the Staterested, the defense moved to dismiss both counts, arguing there was
no evidence that Ms. Everman-Jones intentionally inflicted substantial pain on the dog. She also argued that there was no evidence to support count II or the lesser included offense ofsecond degree animal cruelty because any evidence ofpain was speculative. The trial courtdismissed count I, finding the evidence did not establish that Ms. Everman-Jones acted intentionally. Ms. Everman-Jones called several witnesses who testified that she regularly fed her dog. Her sister, Rachel McCully, testifiedthat Ms. Everman-Jones fed the dog in the morning and afternoon and described the dog as healthy and happy. Lyle Polack, a family friend, testifiedthat he observed the dog during a family camping trip the summer the dog
was removed. He statedthat the dog was fed twice a day and given treats between meals. Diana Everman, Ms. Everman-Jones's mother, testified that she lives next doorto her daughter, visits daily, and observed her daughter feed the dog twice a day. She stated that she never saw the dog suffering or inpain. Ms. Everman-Jones testified that she fed the dog twice a day andpurchased a high calorie dog food for it. She stated there were no signs thatthe dog was in pain or suffering.



### 5No. 30883-9-III State 

### v. Everman-Jones
Thejurywas instructed on one count offirst degree animal cruelty and the lesser included charge ofsecond degree animal cruelty. Itreturned a guilty verdict on the lesser included charge. After trial, Ms. Everman-Jones moved to arrestjudgment, arguing she was prejudiced by the inclusion ofthe lesser included instruction because she was unable to prepare a defense for 

### it. Specifically, she arguedthat "it was error for the state and the juryto be allowedto consider another charge over the defendant's objection that the defendant was not charged." CP at 285. The court denied the motion, noting the lesser included instructions "are always in the mix." RP at 319. Ms. Everman-Jones appeals. ANALYSIS Suppression Motion. Ms. Everman-Jones challenges numerous trial court findings offact and conclusions oflaw relating to the suppression motion. They will be addressed in tumbelow. Upon a trial court's ruling on a suppression motion, we review challenged findings offact for substantial evidence, challenged conclusions oflaw de novo, and determine whether the findings supportthe conclusions. State v. Garvin, 166 Wn.2d 242,249,207 P.3d 1266 (2009). Substantial evidence is '" defined as a quantum ofevidence sufficient to persuade a rational fair-minded person thepremise is true.'" Karst v. McMahon, 136


### 6No.30883-9-III State 

### v. Everman-Jones
Wn. App. 202, 206, 148 P.3d 1081 (2006) (quotingSunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003)). This is a deferential standard, which views reasonable inferences in the light most favorable tothe prevailingparty. SunderlandFamily Treatment Servs. v. City o/Pasco, 127 Wn.2d 782, 788, 903 P.2d 986 (1995). Ifthe standard is satisfied, a reviewing courtwill not substitute itsjudgmentfor that ofthe trial courteventhough it may have resolved a factual dispute differently. Sunnyside Valley Irrigation Dist., 149 Wn.2d at 879-80. The party challenging a finding offact bears the burden ofshowingthatthe record does not support it. Panorama Vill. HomeownersAss'n v. Golden RuleRoofing, Inc., 102 Wn. App. 422, 425, 10 P.3d 417 (2000). Ms. Everman-Jones first assigns error to finding offact 2, which states: "When OfficerMontano arrived atthat location she saw from the driveway a severely emaciated dog. She could clearly seethe dog's ribs, lumbar vertebrae, pelvic bones and all bony prominences." CP at 314. Ms. Everman-Jones argues that the ''testimony indicated that the officer could only see a 'thin dog' and that it only appeared that she could see the dog's ribs
... from that distance." Appellant's Br. at 15 (emphasis omitted). She argues that it was not until the officertrespassed into the backyard that she sawthe emaciated dog.
7No.30883-9-III State v. Everman-Jones
OfficerMontano's testimony undermines Ms. Everman-Jones's argument. The officertestified, "[f]rom mytruck, I was able to see that the dog was in poorcondition. It
was completely emaciated. I noticed its hip bones, rib bones, its abdomen was sunken in, and I was able to see part ofits spinal processes." CP at 204 (emphasis added). Finding offact 2 is supported by substantial evidence. Next, Ms. Everman-Jones contends that finding offact 

### 3 is not supported by sufficient evidence because the house blockedpart ofthe officer'sview ofthebackyard. Finding offact 3 stated, "the dog was chained in the defendant's backyard in openview ofanyone passing by on thepublic road. There were no fences, trees, plants or other objects obstructing the view ofthe dog." CP at 315. This finding is supported by substantial evidence. OfficerMontano testified that the dog was in open view ofanyone passingby onthe public road, andthatthere were no trees or other objects obstructing the view. The fact thatthe dog might not be visible from all angles does not undermine this finding. Ms. Everman-Jones also assigns errorto finding offact 6, arguing that it is "incomplete and misleading." Appellant's Br. at 

### 19. This finding states that: "Officer Montano noted thatthe dog had no shelter; the dog was exposed totheheat (80 degrees) and sun; the dog had no food." CP at 315. Ms. Everman·Jones contends thatthis finding
8No. 30883-9-111 State 

### v. Everman-Jones ignored the fact thatthe dog could travel to the backporch for shelter from the sun and that Officer Montano never lookedunder the bowl to see ifthere was evidence that the dog had been fed that morning. Ms. Everman-Jones misapprehends the court'srole in reviewing findings offact. Itis not ourtaskto evaluate whether a finding is incomplete; rather, our role is confined to determining whether substantial evidence supports the challenged findings. Here, OfficerMontano testifiedthatthe dogwas in the direct sun on
a hot summer day, withoutprotection from the elements, and the dog food bowl was empty. This testimony provides substantial evidence to supportthe court's finding. Next, Ms. Everman-Jones assigns error to findings offact 7 through 9, arguing that they are "irrelevant, misleading and prejudicial since the officer clearly testified that she had already made the decision to seize the dog
... when she talked to the neighbor and father ofMs. Everman-Jones." Appellant's Br. at 20. These findings state that Officer Montano made contactwith a neighbor, who turned out to be Ms. Everman-Jones's father, that the father told the officer he did not care about the dog, and that the officer shouldjusttake the dog. These findings mirrorthe officer'stestimony, who stated that when she asked Ms. Everman-Jones's father about the dog, he responded that he did not '" give a shit aboutthe dog'" and that she shouldjusttake it. CP at 209-10. Moreover,

9

### No. 30883-9-111 State 

### v. Everman-Jones
these findings are relevant as they showthe officerhadno one with whom to leave the dog. Ms. Everman-Jones also challenges finding offact 

### 10, which states: "Officer Montano removedthe dog given the life threatening condition ofthe dog as well as for safe keeping as there was no shelter for the dog." CP at 

### 315. Again, substantial evidence supports this finding. OfficerMontanotestified that the dog was "tiedin direct sun,"had lost a significant amount ofmuscle mass, and had "no discemable [sic] fat." CP at 207. She testified that after evaluating the "totality ofthe situation," she concludedthat "this
was a life threatening situation for this animal." CP at 210. She testifiedthat shehad respondedto numerous calls over the years, in which a dog had died afterbeing tethered in a yard without protection on a hot day. She opinedthat in view ofthe conditions she observed on the day in question, the dog was in imminentthreat ofdeath. Finally, Ms. Everman-Jones assigns error to findings offact 12 through 15, arguing that (1) the court ignoredthe fact that Dr. Fosberg concludedthe dog was not in a life-threatening situation, and that (2) finding offact 

### 15, which notes thatthe dog gained 26 pounds in 21 days, is irrelevant. The challenged findings state that (1) Dr. Fosberg scored the dog's body condition at a 1 on a scale of 1to 5, which he considered emaciated, (2) that Dr. Fosberg stated the dogwas emaciated due to starvation, (3) the
10No.30883-9-II1 State 

### v. Everman-Jones dog weighed 67.5 pounds when weighed at Dr. Fosberg's office, and (4) the dog gained 26 pounds in 21 days. Again, contrary to Ms. Everman-Jones's assertion, we do not evaluate whetherthe court ignored certain facts. Although Ms. Everman-Jones has a different view ofthe facts and the condition ofthe dog, the only issue before us is whether sufficient evidence supports the court's findings and whether those findings support the conclusions. Here, substantial evidence supports the court's findings. Officer Montano testified that upon examination, Dr. Fosberg concluded that the dog was emaciated and starving. The evidence also establishedthat the dog quickly put onweight as soon as it was provided adequate amounts offood. WhetherDr. Fosberg later determined that the dog was not in
an immediate life-threatening condition is immaterial for ourpurposes. We conclude that substantial evidence supports the challenged trial court findings. Search andSeizure. Ms. Everman-Jones challenges the trial court's conclusions of law that the warrantless search and seizure were lawful. Conclusion oflaw I stated: "There was no illegal search. The defendant had no expectation ofprivacyregarding her dog that she kept chained in herbackyard, in open view." CP at 316. Ms. Everman-Jones contends that without evidence the dog was in an immediate life-threatening condition, Officer Montano's warrantless search and removal ofthe dog from the curtilage ofher
11No. 30883-9-III State 

### v. Everman-Jones property exceeded constitutional limits. The State responds that Officer Montano's entry
was legitimate underthe open view doctrine because the backyardwas open to a public streettraversing Ms. Everman-Jones's property and the dog was plainly visible. We review a trial court's conclusions oflaw resulting from a suppression hearing de novo. State v. Duncan, 146 Wn.2d 166, 171,43 P.3d 513 (2002). Article I, section 7 ofthe Washington Constitution provides: "Noperson shall be disturbed in hisprivate affairs, orhis home invaded, without authority oflaw." A warrantless search is unreasonable unless it falls under one ofWashington's recognized exceptions. State 

### v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996) (quoting State v. Houser, 95 Wn.2d 143, 149,622 P.2d 1218 (1980)). The State bears the burden ofestablishing the validity ofa warrantless search. Garvin, 166 Wn.2d at 250. Although an individual maintains an expectation ofprivacy in his orher home's curtilage, police with legitimate business may enterthose curtilage areas impliedly open to thepublic without first obtaining a warrant? State 

### v. Seagull, 95 Wn.2d 898, 902, 632 P.2d 44 (1981). In doing so, an officer must act as a "reasonably respectful citizen" would. Id. A curtilage area includes an access route to a house such as a driveway or

2 "The curtilage is that area 'sointimately tied to the home itselfthat it should be placed under the home's "umbrella" ofFourth Amendment protection.'" State 

### v. Ridgway, 57 Wn. App. 915, 918, 790 P.2d 1263 (1990) (quoting UnitedStates v. Dunn, 12No.30883-9-II1 State 

### v. Everman-Jones walkway leading to a residence, or the porch ofthe residence itself. State v. Ferro, 64 Wn. App. 181,183,824P.2d 526 (1992). Additionally, under the "open view doctrine," when an officer is lawfullypresent in an area, his detection ofitems usingthe senses does not constitute a search. Seagull, 95 Wn.2d at 901 (quoting 1Wayne 

### R. Lafave, Search andSeizure 

### § 2.2, at 240 (1978)). The Seagull court explained: "[T]he observation takes place from a non-intrusive vantage point. The governmental agent is either on the outside looking outside or on the outside looking inside to that which is knowingly exposed to the public
.... The object under observation is not subject to any reasonable expectation of privacy and the observation is notwithinthe scope ofthe constitution." Id. at 902 (quotingState 

### v. Kaaheena, 59 Haw. 23, 28-29, 575 P.2d 462 (1978)). "However, 'a substantial and unreasonable departure' from an area ofcurtilage impliedly opentothe public will be deemed to exceed the scope ofthe implied invitation and to intrude on a constitutionallyprotected expectation ofprivacy." State 

### v. Hoke, 72 Wn. App. 869, 874, 866 P.2d 670 (1994) (quotingSeagull, 95 Wn.2d at 903). Whether a portion ofthe curtilage is impliedly open to thepublic depends onthe facts ofeach case. Seagull, 95 Wn.2d at 903.

480 U.S. 294, 301, 107 S. Ct. 1134,94L. Ed. 2d 326 (1987)). 13No.30883-9-III State v. Everman-Jones Here, OfficerMontano had a legitimate interest in investigating the allegations of animal neglect. She was standing in an open driveway when she saw the dog in the backyard. The backyard area was unfenced and open, and her means ofintrusion were notparticularly intrusive. InState v. Graffius, the court found that officers did notviolate the defendant's right ofprivacy by intentionally looking into a partially open garbage can located on a gravel parking area because the marijuana inside the garbage can was in open view. State 

### v. Graffius, 74 Wn. App. 23, 27-28,871 P.2d 1115 (1994). Inreaching this conclusion, the court considered several factors, including whetherthe officer (1) acted secretly, (2) approachedthe area in daylight, (3) used the normal andmost direct route to the house, and (4) created an artificial vantage point. 

### Id. at 27. Here, the officer's initial vantage point when viewing the dog was a public area open by implied invitation, and her entry into the backyard was not a substantial or unreasonable departure from the area. The paththe officer took was a normal one for an ordinary member ofthe public to see ifsomeone is home. She was not secretive and entered the backyard in daylight. She did not create an artificial vantage point. In sum, the officerwas lawfully present atthe vantage point and, therefore, did not conduct a "search" within the meaning ofthe Fourth Amendment. OfficerMontano simply observedthe dog inplainview from the road, a place shehad a right to be. Given these
14No.30883-9-II1 State 

### v. Everman-Jones facts, Ms. Everman-Jones was '"not subject to any reasonable expectation ofprivacy.'" Seagull, 95 Wn.2d at 902 (quoting Kaaheena, 59 Haw. at 29). "[W]hat is voluntarily exposed to the general public
... is not considered part ofa person's private affairs." State v. Young, 123 Wn.2d 173, 182, 867 P.2d 593 (1994). Accordingly, the trial court properly concluded that this was an open view observation from an area impliedly open to the public. Ms. Everman-Jones next assigns error to the trial court's conclusion ofla:w 2, which stated: "There was no illegal seizure. OfficerMontano properlyremoved the dog from [the] defendant's home without a warrant underRCW 16.52.085(1). Underthe totality ofthe circumstances the officerbelievedthe animal was in an immediate lifethreatening condition." CP at 316. Ms. Everman-Jones contends that the dog was improperly seized underRCW 16.52.085 because the dog was able to get into Officer Montano's van, Dr. Fosberg did not give it emergency treatment, and Dr. Fosberg opined thatthe dog was not in an immediate life-threatening condition. RCW 16.52.085(1) permits a law enforcement officer or animal control officer to
remove an animal without a warrant "ifthe animal is in an immediate life-threatening condition." Despite Ms. Everman-Jones's claims, the court's findings offact support its conclusion that Officer Montano believed the dog was in an immediate life-threatening
15No. 30883-9-111 State 

### v. Everman-Jones
condition. To reiterate, the court found that (1) Officer Montano saw a "severely emaciated dog," (2) the dog was suffering from muscle wasting, (3) the doghad no shelter, no food, and was exposed to high summerheat, and (4) Dr. Fosberg opined that the dog was emaciated due to starvation. CP at 314-15. We agree that OfficerMontano believed the dog was in an immediate life-threatening condition. Thetrial court's findings offact are substantially supported by the record, and the facts support its denial ofthe suppression motion. Motion to Dismiss the Second Count of Animal Cruelty in the FirstDegree. Ms. Everman-Jones next contends that the trial court erred when it denied hermotion to dismiss count II for insufficiency ofthe evidence. She also contends the evidence was insufficientto support her conviction on the lesser included offense ofsecond degree animal cruelty. Atthe outset, we note that Ms. Everman-Jones waived herright to challenge the court's denial ofher dismissal motion when she presented her case in chief. "[A] defendant who presents a defense case in chief'waives' (i.e., may not appeal) the denial ofa motion to dismiss made at the end ofthe State's case in chief." State v. Jackson, 82 Wn. App. 594,608,918 P.2d 945 (1996). However, Ms. Everman-Jones is more

16No.30883-9-III State 

### v. Everman-Jones accurately challenging the sufficiency ofthe State's evidence, a claim that can be brought at "a late stage ofthe proceedings." 

### Id. A claim ofinsufficiency admits the truth ofthe State's evidence and requires that all reasonable inferences therefrom be drawn in favor ofthe State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence is accorded equal weight with direct evidence. State 

### v. Delmarter, 94 Wn.2d 634,638,618 P.2d 99 (1980). Inreviewing the evidence, we give deference to the trier offact, who resolves conflictingtestimony, evaluates the credibility ofwitnesses, and generally weighs the persuasiveness ofthe evidence. State v. Walton, 64 Wn. App. 410, 415-16,824 P.2d 533 (1992). Credibility determinations are not subject to review. State v.. Thomas, 150 Wn.2d 821,874, 83 P.3d 970 (2004). Ms. Everman-Jones argues the evidence is insufficientto support the conviction on the lesser included offense ofsecond degree animal crueltybecause the record reflected that she fed her dog twice a day and the dog did not show signs ofpain. RCW 16.52.207 provides: (2) An owner ofan animal is guilty ofanimal cruelty in the second degree if[he or she] knowingly, recklessly, orwith criminal negligence: (a) Fails to providethe animal with necessary shelter, rest, sanitation, space, or medical attention and the animal suffers unnecessary or unjustifiable physical pain as a result ofthe failure.
17No. 30883-9-II1 State 

### v. Everman-Jones
As detailed above, the evidence showed that the dog was severely emaciated and left in the sun without food. Dr. Fosbergtestified that the dog, which weighed 67 pounds upon admission at his clinic, should have weighed between 100 and 140pounds, and was experiencing moderate to severe pain due to starvation. Although Ms. Everman-Jones testifiedthat she fed the dog a high calorie dog food twice a day, thejurywas free to reject her version ofthe events. Thomas, 150 Wn.2d at 874. We conclude that sufficient evidence supports the conviction for second degree animal cruelty. Motion to ArrestJudgment. Finally, Ms. Everman-Jones claims the trial court erred when it denied her motion to arrestjudgment at the end ofher case. Review ofa trial court's decision on a motion to arrestjudgmentrequires this court to engage in the
same inquiry as the trial court. State v. Ngo Tho Huynh, 107 Wn. App. 68, 76-77,26 P.3d 290 (2001) (quotingState 

### v. Longshore, 141 Wn.2d 414,420,5 P.3d 1256 (2000». Ms. Everman-Jones contends that the inclusion ofthe lesser included instruction of second degree animal cruelty, overher objection, effectivelyresulted in a conviction for
an uncharged crime and, therefore, the court should have granted her motion to arrest judgment and dismiss. She argues, "since thejury found the defendant not guilty ofthe only crime charged, it is a violation ofthe defendant's due process rightto a fair trial and

18No.30883-9-I11 State 

### v. Everman-Jones
doublejeopardy to allow thejuryto proceed to another charge overthe defense objection." Appellant's Br. at 40-41. Ms. Everman-Jones's argument is notpersuasive. OnFebruary 2, 2012, without objection, she was arraigned on the amended information, which added the second count offirst degree animal cruelty. The State correctlypoints outthat arraignment on the charge offirst degree animal cruelty put Ms. Everman-Jones on notice that she couldbe convicted ofany lesser included offense. State v. Royster, 43 Wn. App. 613, 620, 719 P.2d 149 (1986). Moreover, RCW 10.61.003 provides that a criminal defendant may also be convicted ofa crime that is an inferior degree ofthe crime charged. State 

### v. Tamalini, 134 Wn.2d 725, 731, 953 P.2d450 (1998). The statute reads: Upon an indictment or information for an offense consisting ofdifferent degrees, thejurymay find the defendant not guilty ofthe degree charged in the indictment or information, and guilty ofany degree inferiorthereto, or ofan attemptto committhe offense. RCW 10.61.003. As discussed above, sufficient evidence supportedthe conviction for second degree animal cruelty. The trial court did not errwhen it denied Ms. Everman-Jones's motionto arrestjudgment.

19No. 30883-9-111 State 

### v. Everman-Jones
We affirm. A majority ofthe panel has determinedthis opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040. Kulik, 

### J. WE CONCUR:

K 

### s 0, C.J.

20