FILED 


DECEMBER 10, 2013 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DNISION THREE 


STATE OF WASHINGTON, ) No. 30883-9-III 

) 

Respondent, ) 

) 

v. ) UNPUBLISHED OPINION 

) 

CHERINA EVERMAN-JONES, ) 

also known as CHERINA L. EVERMAN, ) 

) 

Appellant. ) 

KULIK, J. - Cherina Evennan-Jones appeals her conviction for second degree 

animal cruelty, arguing the trial court erred in denying her motion to suppress. She 

contends an animal control officer conducted an unlawful search when she entered areas 

ofcurtilage not open to the public. And she argues that the officer lacked authority to 

seize her dog without a warrant under RCW 16.52.085 because there was no evidence the 

dog was in an immediate life-threatening condition. Finally, Ms. Evennan-Jones 

contends insufficient evidence supports her conviction and that the trial court erred in 

denying her motion to arrest judgment. We disagree with Ms. Evennan-Jones and affinn 

the trial 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 of a 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 went to the 

backyard to get a closer look at the dog. She observed "a completely emaciated dog" 

with no fat deposits and a loss of muscle mass. Report ofProceedings (RP) at 24. The 

top of its skull was sunken in. The dog had water, but no food and no shelter. After 

examining the dog, Officer Montano 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 "concerned that the dog 

was dehydrated and would not be able to survive the elements. I did not know 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 

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No. 30883-9-III 

State v. Everman-Jones 

by amended information with two counts of first degree animal cruelty.1 

Before trial, Ms. Everman-Jones filed a motion to return the dog and to suppress 

evidence and dismiss. She argued that Officer Montano conducted an illegal search by 

"entering the areas ofthe curtilage which were obviously not impliedly open to the 

public." CP at 18. She also argued that the officer violated RCW 16.52.085, which only 

authorizes warrantless removal of an animal when the animal is in an "immediate lifethreatening condition." CP at 19. She maintained that the dog was not in such condition 

as evidenced by its ability to stand and jump on the officer's truck and the fact that no 

emergency treatment was needed. 

The State responded that the dog was in "open view" and, therefore, Ms. EvermanJones had no expectation of privacy. It pointed out that the backyard was a wide open 

space without buildings, fences, or trees and therefore Officer Montano did not invade the 

curtilage when she went to the backyard to check on the dog. Finally, the State argued 

I Count I alleged in part, "That the defendant, CHERINA L. EVERMAN-JONES, 

in the State of Washington, on or about August 10,2011, did intentionally inflict 

substantial pain on an animal." Clerk's Papers (CP) at 160. 

Count II alleged in part, "That the defendant, CHERINA L. EVERMAN-JONES, 

in the State of Washington, on or about August 10,2011, did, with criminal negligence, 

starve an animal, which as a result caused substantial and unjustified physical pain that 

extended for a period sufficient to cause considerable suffering." CP at 160. 

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No. 30883-9-111 

State v. Everman-Jones 

that Officer Montano 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 motion to 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 

"under the totality of the circumstances the officer believed the dog was in an immediate 

life-threatening condition." CP at 316. 

At trial, Officer Montano 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. By November 2011, the dog had gained 31 pounds. 

Dr. Mark Fosberg, a veterinarian for 30 years, testified that he examined the dog 

and determined that it was "a very thin, emaciated dog. On a body score we scale a one 

to five, we found a one." RP at 73. He noted "very thin muscles over the neck, the head, 

the shoulders, the back muscles, the pelvis and the rear legs." RP at 73. He attributed 

this severe muscle wasting to inadequate nutrition. Dr. Fosberg explained that the dog, an 

adult Great Dane mix, should have 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 of the starvation. RP at 82. 

4 

No.30883-9-II1 

State v. Everman-Jones 

After the State rested, 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 of second degree animal cruelty because any evidence ofpain was speculative. 

The trial court dismissed 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, testified that Ms. Everman-Jones fed the dog in the 

morning and afternoon and described the dog as healthy and happy. Lyle Polack, a family 

friend, testified that he observed the dog during a family camping trip the summer the dog 

was removed. He stated that the dog was fed twice a day and given treats between meals. 

Diana Everman, Ms. Everman-Jones's mother, testified that she lives next door to her 

daughter, visits daily, and observed her daughter feed the dog twice a day. She stated that 

she never saw the dog suffering or in pain. 

Ms. Everman-Jones testified that she fed the dog twice a day and purchased a high 

calorie dog food for it. She stated there were no signs that the dog was in pain or 

suffering. 

5 

No. 30883-9-III 

State v. Everman-Jones 

The jury was instructed on one count of first degree animal cruelty and the lesser 

included charge of second degree animal cruelty. It returned a guilty verdict on the lesser 

included charge. 

After trial, Ms. Everman-Jones moved to arrest judgment, arguing she was 

prejudiced by the inclusion ofthe lesser included instruction because she was unable to 

prepare a defense for it. Specifically, she argued that "it was error for the state and the 

jury to be allowed to 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 

of fact and conclusions of law relating to the suppression motion. They will be addressed 

in tum below. 

Upon a trial court's ruling on a suppression motion, we review challenged findings 

of fact for substantial evidence, challenged conclusions of law de novo, and determine 

whether the findings support the conclusions. State v. Garvin, 166 Wn.2d 242,249,207 

P.3d 1266 (2009). Substantial evidence is '" defined as a quantum of evidence sufficient 

to persuade a rational fair-minded person the premise is true.'" Karst v. McMahon, 136 

6 

No.30883-9-III 

State v. Everman-Jones 

Wn. App. 202, 206, 148 P.3d 1081 (2006) (quoting Sunnyside 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 to the prevailing party. 

Sunderland Family Treatment Servs. v. City o/Pasco, 127 Wn.2d 782, 788, 903 P.2d 986 

(1995). If the standard is satisfied, a reviewing court will not substitute its judgment for 

that of the trial court even though it may have resolved a factual dispute differently. 

Sunnyside Valley Irrigation Dist., 149 Wn.2d at 879-80. The party challenging a finding 

of fact bears the burden of showing that the record does not support it. Panorama Vill. 

Homeowners Ass'n v. Golden Rule Roofing, Inc., 102 Wn. App. 422, 425, 10 P.3d 417 

(2000). 

Ms. Everman-Jones first assigns error to finding of fact 2, which states: "When 

Officer Montano arrived at that location she saw from the driveway a severely emaciated 

dog. She could clearly see the 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 officer trespassed into the backyard that she saw the emaciated 

dog. 

7 

No.30883-9-III 

State v. Everman-Jones 

Officer Montano's testimony undermines Ms. Everman-Jones's argument. The 

officer testified, "[f]rom my truck, I was able to see that the dog was in poor condition. It 

was completely emaciated. I noticed its hip bones, rib bones, its abdomen was sunken in, 

and I was able to see part of its spinal processes." CP at 204 (emphasis added). Finding 

of fact 2 is supported by substantial evidence. 

Next, Ms. Everman-Jones contends that finding of fact 3 is not supported by 

sufficient evidence because the house blocked part ofthe officer's view ofthe backyard. 

Finding of fact 3 stated, "the dog was chained in the defendant's backyard in open view 

of anyone passing by on the public 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. Officer Montano testified that the dog was in open view of anyone 

passing by on the public road, and that there were no trees or other objects obstructing the 

view. The fact that the dog might not be visible from all angles does not undermine this 

finding. 

Ms. Everman-Jones also assigns error to finding of fact 6, arguing that it is 

"incomplete and misleading." Appellant's Br. at 19. This finding states that: "Officer 

Montano noted that the dog had no shelter; the dog was exposed to the heat (80 degrees) 

and sun; the dog had no food." CP at 315. Ms. Everman·Jones contends that this finding 

8 

No. 30883-9-111 

State v. Everman-Jones 

ignored the fact that the dog could travel to the back porch for shelter from the sun and 

that Officer Montano never looked under the bowl to see ifthere was evidence that the 

dog had been fed that morning. Ms. Everman-Jones misapprehends the court's role in 

reviewing findings of fact. It is not our task to evaluate whether a finding is incomplete; 

rather, our role is confined to determining whether substantial evidence supports the 

challenged findings. Here, Officer Montano testified that the dog was in the direct sun on 

a hot summer day, without protection from the elements, and the dog food bowl was 

empty. This testimony provides substantial evidence to support the court's finding. 

Next, Ms. Everman-Jones assigns error to findings of fact 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 of Ms. Everman-Jones." Appellant's Br. at 20. These findings state that Officer 

Montano made contact with 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 

should just take the dog. These findings mirror the officer's testimony, who stated that 

when she asked Ms. Everman-Jones's father about the dog, he responded that he did not 

'" give a shit about the dog'" and that she should just take it. CP at 209-10. Moreover, 

9 

No. 30883-9-111 

State v. Everman-Jones 

these findings are relevant as they show the officer had no one with whom to leave the 

dog. 

Ms. Everman-Jones also challenges finding of fact 10, which states: "Officer 

Montano removed the dog given the life threatening condition of the dog as well as for 

safe keeping as there was no shelter for the dog." CP at 315. Again, substantial evidence 

supports this finding. Officer Montano testified that the dog was "tied in direct sun," had 

lost a significant amount of muscle mass, and had "no discemable [sic] fat." CP at 207. 

She testified that after evaluating the "totality of the situation," she concluded that "this 

was a life threatening situation for this animal." CP at 210. She testified that she had 

responded to numerous calls over the years, in which a dog had died after being tethered 

in a yard without protection on a hot day. She opined that in view of the conditions she 

observed on the day in question, the dog was in imminent threat of death. 

Finally, Ms. Everman-Jones assigns error to findings of fact 12 through 15, 

arguing that (1) the court ignored the fact that Dr. Fosberg concluded the dog was not in a 

life-threatening situation, and that (2) finding of fact 15, which notes that the 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 1 to 5, which he considered 

emaciated, (2) that Dr. Fosberg stated the dog was emaciated due to starvation, (3) the 

10 

No.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 whether the 

court ignored certain facts. Although Ms. Everman-Jones has a different view of the facts 

and the condition of the 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 established that the dog quickly put on weight as soon as it was provided 

adequate amounts of food. Whether Dr. Fosberg later determined that the dog was not in 

an immediate life-threatening condition is immaterial for our purposes. 

We conclude that substantial evidence supports the challenged trial court findings. 

Search and Seizure. Ms. Everman-Jones challenges the trial court's conclusions of 

law that the warrantless search and seizure were lawful. Conclusion of law I stated: 

"There was no illegal search. The defendant had no expectation of privacy regarding her 

dog that she kept chained in her backyard, 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 of the dog from the curtilage of her 

11 

No. 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 backyard was open to a public 

street traversing Ms. Everman-Jones's property and the dog was plainly visible. 

We review a trial court's conclusions of law 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: "No person shall be disturbed in his private 

affairs, or his home invaded, without authority of law." A warrantless search is 

unreasonable unless it falls under one of Washington'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 of establishing the validity 

of a warrantless search. Garvin, 166 Wn.2d at 250. 

Although an individual maintains an expectation ofprivacy in his or her home's 

curtilage, police with legitimate business may enter those curtilage areas impliedly open 

to the public 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 'so intimately tied to the home itself that it should be 

placed under the home's "umbrella" of Fourth Amendment protection.'" State v. 

Ridgway, 57 Wn. App. 915, 918, 790 P.2d 1263 (1990) (quoting United States v. Dunn, 

12 

No.30883-9-II1 

State v. Everman-Jones 

walkway leading to a residence, or the porch ofthe residence itself. State v. Ferro, 64 

Wn. App. 181,183,824 P.2d 526 (1992). 

Additionally, under the "open view doctrine," when an officer is lawfully present 

in an area, his detection of items using the senses does not constitute a search. Seagull, 

95 Wn.2d at 901 (quoting 1 Wayne R. Lafave, Search and Seizure § 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 not within the scope of the constitution." 

Id. at 902 (quoting State v. Kaaheena, 59 Haw. 23, 28-29, 575 P.2d 462 (1978)). 

"However, 'a substantial and unreasonable departure' from an area of curtilage impliedly 

open to the public will be deemed to exceed the scope of the implied invitation and to 

intrude on a constitutionally protected expectation ofprivacy." State v. Hoke, 72 Wn. 

App. 869, 874, 866 P.2d 670 (1994) (quoting Seagull, 95 Wn.2d at 903). Whether a 

portion of the curtilage is impliedly open to the public depends on the facts of each case. 

Seagull, 95 Wn.2d at 903. 

480 U.S. 294, 301, 107 S. Ct. 1134,94 L. Ed. 2d 326 (1987)). 

13 
No.30883-9-III 

State v. Everman-Jones 

Here, Officer Montano 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 of intrusion were 

not particularly intrusive. In State v. Graffius, the court found that officers did not violate 

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). In reaching 

this conclusion, the court considered several factors, including whether the officer 

(1) acted secretly, (2) approached the area in daylight, (3) used the normal and most 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 path the officer took was a normal one for an 

ordinary member of the public to see if someone is home. She was not secretive and 

entered the backyard in daylight. She did not create an artificial vantage point. In sum, 

the officer was lawfully present at the vantage point and, therefore, did not conduct a 

"search" within the meaning of the Fourth Amendment. Officer Montano simply 

observed the dog in plain view from the road, a place she had a right to be. Given these 

14 

No.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 of a 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. Officer Montano properly removed the dog 

from [the] defendant's home without a warrant under RCW 16.52.085(1). Under the 

totality of the circumstances the officer believed the animal was in an immediate lifethreatening condition." CP at 316. Ms. Everman-Jones contends that the dog was 

improperly seized under RCW 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 

that the 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 "if the animal is in an immediate life-threatening 

condition." Despite Ms. Everman-Jones's claims, the court's findings of fact support its 

conclusion that Officer Montano believed the dog was in an immediate life-threatening 

15 

No. 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 dog had no 

shelter, no food, and was exposed to high summer heat, and (4) Dr. Fosberg opined that 

the dog was emaciated due to starvation. CP at 314-15. We agree that Officer Montano 

believed the dog was in an immediate life-threatening condition. 

The trial court's findings of fact are substantially supported by the record, and the 

facts support its denial of the suppression motion. 

Motion to Dismiss the Second Count ofAnimal Cruelty in the First Degree. Ms. 

Everman-Jones next contends that the trial court erred when it denied her motion to 

dismiss count II for insufficiency ofthe evidence. She also contends the evidence was 

insufficient to support her conviction on the lesser included offense of second degree 

animal cruelty. 

At the outset, we note that Ms. Everman-Jones waived her right to challenge the 

court's denial of her 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 

of a motion to dismiss made at the end of the State's case in chief." State v. Jackson, 82 

Wn. App. 594,608,918 P.2d 945 (1996). However, Ms. Everman-Jones is more 

16 

No.30883-9-III 

State v. Everman-Jones 

accurately challenging the sufficiency of the State's evidence, a claim that can be brought 

at "a late stage of the proceedings." Id. 

A claim of insufficiency admits the truth of the State's evidence and requires that 

all reasonable inferences therefrom be drawn in favor of the 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). In reviewing the evidence, we give 

deference to the trier of fact, who resolves conflicting testimony, evaluates the credibility 

of witnesses, 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 insufficient to support the 

conviction on the lesser included offense of second degree animal cruelty because 

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 of an animal is guilty of animal cruelty in the second 

degree if [he or she] 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. 

17 
No. 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. Fosberg testified that the dog, which weighed 67 pounds 

upon admission at his clinic, should have weighed between 100 and 140 pounds, and was 

experiencing moderate to severe pain due to starvation. Although Ms. Everman-Jones 

testified that she fed the dog a high calorie dog food twice a day, the jury was 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 Arrest Judgment. Finally, Ms. Everman-Jones claims the trial court 

erred when it denied her motion to arrest judgment at the end of her case. Review of a 

trial court's decision on a motion to arrest judgment requires 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) (quoting State v. Longshore, 141 Wn.2d 414,420,5 P.3d 1256 (2000». 

Ms. Everman-Jones contends that the inclusion of the lesser included instruction of 

second degree animal cruelty, over her objection, effectively resulted in a conviction for 

an uncharged crime and, therefore, the court should have granted her motion to arrest 

judgment and dismiss. She argues, "since the jury found the defendant not guilty ofthe 

only crime charged, it is a violation ofthe defendant's due process right to a fair trial and 

18 

No.30883-9-I11 

State v. Everman-Jones 

double jeopardy to allow the jury to proceed to another charge over the defense 

objection." Appellant's Br. at 40-41. 

Ms. Everman-Jones's argument is not persuasive. On February 2, 2012, without 

objection, she was arraigned on the amended information, which added the second count 

of first degree animal cruelty. The State correctly points out that arraignment on the 

charge of first degree animal cruelty put Ms. Everman-Jones on notice that she could be 

convicted of any 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 of a crime that is an inferior degree ofthe crime charged. State v. Tamalini, 

134 Wn.2d 725, 731, 953 P.2d 450 (1998). The statute reads: 

Upon an indictment or information for an offense consisting of different 

degrees, the jury may find the defendant not guilty ofthe degree charged in 

the indictment or information, and guilty of any degree inferior thereto, or 

of an attempt to commit the offense. 

RCW 10.61.003. 

As discussed above, sufficient evidence supported the conviction for second 

degree animal cruelty. The trial court did not err when it denied Ms. Everman-Jones's 

motion to arrest judgment. 

19 

No. 30883-9-111 

State v. Everman-Jones 

We affirm. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

Kulik, J. 

WE CONCUR: 


K s 0, C.J. 

20