FILED JUNE 15, 2023 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 39502-2-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) THELMA WINGER, ) ) Appellant. )
PENNELL, J. — Thelma Winger appeals her judgment and sentence, imposed as a
result of her convictions for first and second degree animal cruelty. Finding no error, we
affirm.
FACTS
After receiving reports of suspected animal mistreatment, law enforcement
searched a rural property owned by Paul and Thelma Winger on April 29, 2018.
The search revealed several animals that were emaciated and malnourished. Pens and No. 39502-2-III State v. Winger
kennels were soaked in urine and caked in feces. Many of the animals had protruding
bones and open sores. The Wingers claimed they were experiencing financial difficulties.
However, there was dog food at the residence, including some unopened bags. One of the
investigating officers described the scene as one of worst cases of animal mistreatment
they had ever witnessed.
Officers seized several of the animals and transferred them to the custody of
animal rescue organizations. Veterinarians considered the possibility of euthanasia, but
opted instead to provide medically necessary treatment.
The State separately charged the Wingers with six counts of first degree animal
cruelty as to a horse, three dogs, a cat, and a bird. The Wingers were also charged with
second degree animal cruelty against some turtles and doves. Each of the first degree
charges alleged that
on or about April 29, 2018, [the defendant] did, with criminal negligence, starve, dehydrate, or suffocate an animal . . . and as a result caused death or substantial and unjustifiable physical pain that extended for a period sufficient to cause considerable suffering; contrary to RCW 16.52.205 . . . .
Clerk’s Papers (CP) at 11-13. The Wingers waived their rights to a jury trial and their
cases were jointly tried to the bench.
At trial, the court heard testimony from treating veterinarians who testified the
animals were gravely emaciated. The veterinarians opined that the animals’ conditions
2 No. 39502-2-III State v. Winger
were the result of a lengthy and extremely painful period of deprivation of adequate
calories. Animal rescue professionals testified that the rescued animals readily ate and
recovered—continually gaining weight—as soon as they were provided proper nutrition.
One of the animal rescue volunteers who testified at trial was an individual named
Jo Ridlon. Ms. Ridlon explained that she first became aware of possible mistreatment of
the Wingers’ animals when she received reports from community members, including
George Blush, who apparently runs a pet food bank. Ms. Ridlon testified that she and Mr.
Blush spoke to Paul Winger by phone a few days prior to the animals’ rescue. Ms. Ridlon
testified that she told Mr. Winger that her organization would help bring a veterinarian to
the Wingers’ property if the Wingers did not want to take their horse to a vet, but that the
Wingers “refused” to schedule a vet appointment. 1 Rep. of Proc. (RP) (May 19, 2021)
at 183-84.
On cross-examination, Ms. Winger’s counsel asked Ms. Ridlon how she could
remember the specifics of this interaction that happened more than three years prior:
[DEFENSE COUNSEL]: . . . [Y]ou don’t have any record of [the phone conversation], correct? [MS. RIDLON]: It’s kind of memorialized in an email. [DEFENSE COUNSEL]: Between who? [MS. RIDLON]: Me and Chief [Ryan] Spurling [of the Mason County Sheriff’s Office]. .... [DEFENSE COUNSEL]: . . . [H]ow do you know there’s an email?
3 No. 39502-2-III State v. Winger
[MS. RIDLON]: Because I wrote it.
Id. at 185.
The existence of an e-mail came as a surprise to both parties. The prosecutor
thereafter obtained copies of the relevant e-mail correspondence and produced them to
the defense.
The defense raised a Brady 1 challenge and moved to dismiss the charges.
The defense argued that the State had failed to disclose the e-mails for more than three
years, and that one sentence in one of the e-mails was exculpatory because it showed
the Wingers had obtained food for their animals. The sentence in question is written
by Ms. Ridlon and reads: “George [Blush] said when he delivered dog food to [the
Wingers] there were several things that didn’t seem right but he didn’t say anything.”
Ex. 3 at 1 (emphasis added); see also 1 RP (May 20, 2021) at 192.
Defense counsel explained they had learned from their clients that Mr. Blush had
delivered them dog food, and that counsel had thus tried to interview Mr. Blush, who was
hostile and refused to voluntarily participate. Defense counsel claimed that, if they had
known there was independent evidence that Mr. Blush delivered dog food, the case would
have been “a very different ballgame.” 1 RP (May 20, 2021) at 212. The prosecutor
1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
4 No. 39502-2-III State v. Winger
disagreed, pointing out that “[t]he defense was on notice that food was provided to these
animals,” id. at 218, and noting that defense counsel was still free to interview Mr. Blush
and subpoena him for a deposition if he proved uncooperative. Id. at 220.
The trial court continued the proceedings and entered an order requiring the
State to search for more e-mails at the sheriff’s office relating to the Winger case.
Although the defense speculated that there were more Ridlon/Spurling e-mails than
the ones disclosed, the search of sheriff’s office records revealed no additional e-mails.
The State acknowledged that, as a matter of policy, county government e-mails were
ordinarily retained for only two years, so any e-mails about the Winger case were likely
deleted as a matter of course.
The State also informed the trial court that the e-mail “which [defense] counsel
is basing their argument on”—that is, the one containing the purportedly exculpatory
sentence—was “from and to the same individual.” 1 Supp. Rep. of Proc. (June 28, 2021)
at 5. An examination of exhibit 3 confirms this: the e-mail that the Wingers alleged was
exculpatory was both sent and received by Ms. Ridlon’s e-mail address. It appears from
the exhibit that Ms. Ridlon may have inadvertently replied to herself, because the most
recent e-mail in the chain was an e-mail from her to Chief Spurling (stating, “Sorry phone
is on 1% I'll be more informative when home.”). Ex. 3 at 2. The trial court rejected the
5 No. 39502-2-III State v. Winger
Wingers’ Brady challenge, basing its denial on the Wingers’ failure to show that the
e-mail in question was in fact ever received by Chief Spurling.
After the State rested, the court dismissed the first degree charge as to the bird at
the State’s request. The court also granted the Wingers’ motion to dismiss the second
degree charges as to the turtles and the doves, concluding the State had presented no
evidence those animals were in pain.
The Wingers also moved to dismiss the first degree charge related to the cat.
Counsel argued that the State had not proven the cat’s condition was not caused by an
underlying medical problem. Defense counsel agreed that there was a “prima facie”
case of second degree animal cruelty as to the cat and that an amended charge would be
“appropriate.” 2 RP (Aug. 5, 2021) at 574-75, 577-79. The trial court agreed with defense
counsel’s assessment and amended the charge pertaining to the cat to animal cruelty in the
second degree.
The court convicted the Wingers of four counts of first degree animal cruelty as to
the three dogs and the horse, and one count of second degree animal cruelty as to the cat.
Ms. Winger was sentenced to 45 days of confinement, 30 days of which were converted
to 240 hours of community service. The trial court also forbade Ms. Winger from ever
6 No. 39502-2-III State v. Winger
owning, possessing, caring for, or cohabitating with animals and ordered her to pay
$6,963.09 in total restitution to the organizations that cared for the animals she neglected.
Ms. Winger filed a timely notice of appeal. A Division Three panel considered
Ms. Winger’s appeal without oral argument after receiving an administrative transfer of
the case from Division Two.
ANALYSIS
Ms. Winger raises several challenges to her conviction and sentence. We address
each in turn.
Sufficiency of charging document
Ms. Winger’s first contention pertains to the sufficiency of the State’s charging
document. She claims the first degree animal cruelty charges failed to allege facts
sufficient to support all elements of the offense.
We review the adequacy of a charging document de novo. State v. Canela, 199
Wn.2d 321, 328, 505 P.3d 1166 (2022). Criminal defendants are entitled to be informed
of the nature and cause of the accusations against them. See id. (citing U.S. CONST.
amend. VI; WASH. CONST. art. I, § 22; CrR 2.1. Where, as here, a charging document is
challenged for the first time on appeal, we liberally construe it in favor of validity. State v.
Kjorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991). Under this liberal standard we first
7 No. 39502-2-III State v. Winger
assess whether the necessary elements of the charged offense “appear in any form or by
fair construction can be found” in the charging document. State v. Chambers, 23 Wn.
App. 2d 917, 924, 518 P.3d 649 (2022), review denied, 200 Wn.2d 1030, 523 P.3d 1179
(2023). If this initial hurdle is met, we will reject the defendant’s challenge unless the
defendant can show actual prejudice. See id.
The information accused Ms. Winger of first degree animal cruelty under former
RCW 16.52.205(2) (2015), which 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 and as a result causes . . . [s]ubstantial and unjustifiable physical pain that extends for a period sufficient to cause considerable suffering . . . .
Ms. Winger contends her charging document was inadequate because it specified
that negligent acts occurred on a single day, April 29, 2018. She argues that this limited
time period is insufficient to support an allegation of physical suffering over an extended
period of time, as required by the statute.
Ms. Winger’s criticism is unpersuasive. The charging document did say that
Ms. Winger’s conduct occurred “on or about April 29, 2018.” CP at 11-13. But it also
contained the statutory language that the harm to the animals in Ms. Winger’s care
“extended for a period sufficient to cause considerable suffering.” Id.; see former
RCW 16.52.205(2); see also Chambers, 23 Wn. App. 2d at 925 (approving an
8 No. 39502-2-III State v. Winger
information that “used the verbatim language of the statutes”). Read as a whole, the
charging document adequately alleged Ms. Winger’s conduct occurred over an extended
period of time, to include on or about April 29, 2018. See State v. Hayes, 81 Wn. App.
425, 432, 914 P.2d 788 (1996) (noting the phrase “‘on or about’ is sufficient to admit
proof of the act at any time within the statute of limitations, so long as there is no defense
of alibi”). This was sufficient to convey the essential elements of the offense.
Ms. Winger asserts she was prejudiced by the wording of the charging document,
but she fails to substantiate this claim. Nothing in the record suggests that Ms. Winger
was confused about the nature of the charges or that she limited her defense strategy
based on the information’s wording. See State v. Derri, 199 Wn.2d 658, 691, 511 P.3d
1267 (2022) (noting when a charging document conveys the essential elements of an
offense, the conviction will not be reversed in the absence of actual prejudice). Ms.
Winger’s unpreserved challenge to the sufficiency of the State’s charging document fails.
Trial court’s oral amendment of information
Ms. Winger contends her second degree animal cruelty conviction as to the cat was
also unlawful, claiming the trial court sua sponte downgraded the charge from first degree
to second degree. This complaint misrepresents the record. The trial court downgraded
this charge at Ms. Winger’s invitation. Furthermore, the amendment was appropriate
9 No. 39502-2-III State v. Winger
given the only change was to an inferior degree crime. State v. Peterson, 133 Wn.2d 885,
893, 948 P.2d 381 (1997). This challenge fails.
Sufficiency of evidence
Ms. Winger’s third claim is that the record contains insufficient evidence of first
degree animal cruelty’s essential durational element: that Ms. Winger negligently caused
substantial pain “extend[ing]” for a sufficient time period. Former RCW 16.52.205(2).
She argues that the trial court’s factual findings impermissibly relied on evidence outside
the charging period, which she claims is limited to April 29, 2018.
For the reasons previously stated, the charging document did not limit Ms. Winger’s
offense conduct to only April 29, 2018. See State v. Brooks, 195 Wn.2d 91, 100-01, 455
P.3d 1151 (2020). Ms. Winger’s sufficiency challenge therefore fails.
Failure to disclose exculpatory evidence
Ms. Winger next argues her case should have been dismissed because the State
breached its duty to disclose exculpatory evidence when it did not turn over Jo Ridlon’s
e-mails. The law clearly requires the State to disclose evidence favorable to the defense.
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). But Ms.
Winger fails to show the State violated this obligation.
10 No. 39502-2-III State v. Winger
As an initial matter, we agree with the trial court that the State did not violate its
duty to disclose exculpatory evidence because the Ridlon e-mail was never in the State’s
possession until after it came to light during Ms. Ridlon’s trial testimony. Ms. Ridlon’s
copy of the e-mail indicates she sent it to herself, not Chief Spurling. The State does not
violate its duty to turn over exculpatory evidence if it never possessed the evidence in the
first place. State v. Mullen, 171 Wn.2d 881, 895, 259 P.3d 158 (2011) (“‘[T]he
prosecution is under no obligation to turn over materials not under its control.’” (quoting
United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991))).
Nor was the evidence in question exculpatory. The fact that the Wingers had
access to dog food and still allowed their animals to become malnourished is indicative
of criminal negligence. It is not exculpatory. Nothing about the information contained in
Ms. Ridlon’s e-mail tends to detract from the weight of the State’s case.
Ms. Winger suggests that the e-mail would have impeached Ms. Ridlon’s
testimony. This mischaracterizes the record. Ms. Ridlon testified that the Wingers refused
to accept veterinary treatment for their horse. She never testified the Wingers refused
to accept food for their dogs. Moreover, at most, the Ridlon e-mail revealed there was,
at one point, dog food delivered to the Wingers’ home. The State itself had already
furnished evidence of multiple bags of dog food that had been found at the Winger
11 No. 39502-2-III State v. Winger
residence. See In re Pers. Restraint of Mulamba, 199 Wn.2d 488, 503, 508 P.3d 645
(2022) (noting evidence is immaterial under Brady if it “can be considered cumulative of
other trial evidence”).
Cumulative error
Ms. Winger argues that cumulative error deprived her of a fair trial. “The
cumulative error doctrine applies when a combination of trial errors denies the defendant
a fair trial, even if any one of those errors individually may not justify reversal.” State v.
Restvedt, __ Wn. App. 2d __, 527 P.3d 171, 185 (2023). Ms. Winger has not demonstrated
any individual errors at her trial. The cumulative error doctrine therefore is not grounds for
relief.
Cruel punishment
As part of its criminal sentence, the trial court imposed a lifetime ban on dog and
horse possession based on former RCW 16.52.200(4)(b) (2016), and further ordered that
Ms. Winger not “harbor or own” any animal “or reside in any household where animals
are present” based on former RCW 16.52.205(5)(a) (2016). See CP at 79. Former RCW
16.52.200(4)(b) required trial courts to impose a lifetime ban on ownership of “similar” 2
The legislature defined “similar animal” as, for mammals, any animal in the 2
same taxonomic order; and for nonmammals, any animal in the same taxonomic class. See former RCW 16.52.011(2)(q) (2017).
12 No. 39502-2-III State v. Winger
animals based on a conviction for first degree animal cruelty and former
RCW 16.52.205(5)(a) provided discretion to impose a lifetime ban on the ownership
of any animals. 3 Ms. Winger contends her lifetime ban on animal possession is
unconstitutionally cruel. 4 She therefore claims this portion of her judgment and sentence
must be stricken.
We review the constitutionality of a punishment de novo. State v. Bassett, 192
Wn.2d 67, 77, 428 P.3d 343 (2018). The United States Constitution forbids “cruel and
unusual punishments.” U.S. CONST. amend. VIII. The Washington Constitution similarly
forbids “cruel punishment[s].” WASH. CONST. art. I, § 14. Because the state constitutional
3 The legislature amended former RCW 16.52.200(4)(b), effective June 11, 2020, to delete the word “similar.” See LAWS OF 2020, ch. 158, § 5. The present statute now requires trial courts to impose a lifetime ban on any animal ownership when a person is convicted of first degree animal cruelty. See also RCW 16.52.205(5) (“[T]he court must order that the convicted person not own, care for, possess, or reside in any household where an animal is present.”). LAWS OF 2020, ch. 158, § 6. Ms. Winger’s offense conduct preceded these statutory amendments. 4 Ms. Winger also argues that the forced forfeiture of her animals constituted an unconstitutional punishment, but her briefing mainly focuses on the lifetime ban on animal ownership. Former RCW 16.52.085(1) and (4) (2016) authorized the seizure of the animals Ms. Winger was charged with abusing. The details of the forfeiture of her other animals are not evident from the record. See State v. Stevenson, 16 Wn. App. 341, 345, 555 P.2d 1004 (1976) (“Matters referred to in the brief but not included in the record cannot be considered on appeal.”). In any event, because we conclude Ms. Winger’s lifetime ban on animal ownership was constitutional, we necessarily also conclude that the forced forfeiture of her animals was constitutional, because a forfeiture of her animals was logically necessary to effectuate the lifetime ban.
13 No. 39502-2-III State v. Winger
text is more protective than that of the Eighth Amendment to the United States
Constitution, if a sentence is not cruel under the Washington Constitution, “it is
necessarily not cruel and unusual under the Eighth Amendment.” State v. Moretti,
193 Wn.2d 809, 820, 446 P.3d 609 (2019); see also Bassett, 192 Wn.2d at 78, 80, 82.
Ms. Winger argues the lifetime ban on animal ownership is categorically
unconstitutional or that, alternatively, it is disproportionate under the four factors
elucidated in State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980).
A categorical analysis is not applicable to Ms. Winger’s case. A claim that a
sentence is categorically unconstitutional focuses on “the nature of the offense or the
characteristics of the offender.” Bassett, 192 Wn.2d at 84. There are no distinctive
characteristics shared by all animal owners nor by all animal cruelty offenses. We are
“free to choose the most appropriate framework” for an individual case, and here a
categorical-bar analysis is inapposite. Id. at 83.
Apart from the categorical analysis, a punishment may be unconstitutionally
cruel if it is grossly disproportionate to the crime of conviction. See id. at 82-23. In
Fain, our Supreme Court adopted four factors to determine whether a punishment is
unconstitutionally disproportionate: (1) the nature of the offense; (2) the legislative
purpose behind the statute; (3) the punishment the defendant would have received in other
14 No. 39502-2-III State v. Winger
jurisdictions for the same offense; and (4) the punishment meted out for other offenses
in Washington. 94 Wn.2d at 397. We address each of the relevant factors in turn.
1. Nature of the offense
The first Fain factor analyzes the severity of the offense and the facts of the
defendant’s case. See State v. Morin, 100 Wn. App. 25, 30-31, 995 P.3d 113 (2000). This
factor may weigh against constitutionality where the defendant’s crimes were “relatively
minor,” that is, where they did not “threaten violence to persons or property.” Fain, 94
Wn.2d at 398.
Ms. Winger’s crimes are not minor. The State’s witnesses testified that the
Wingers’ mistreatment of their animals was horrendous. Contrary to Ms. Winger’s
protestations, her failure to provide for her animals was not solely attributable to her
poverty. A person who, as a result of poverty, cannot afford food for their animals, has
other options besides simply letting the animals go hungry. There was evidence at trial
that the Wingers were offered veterinary care and that there were organizations able to
provide food. Yet the Wingers still let their animals starve to the brink of death. The first
Fain factor is not indicative of disproportionality here.
15 No. 39502-2-III State v. Winger
2. Legislative purpose
The second Fain factor looks to legislative purpose. The legislature added the
possibility of lifetime bans on animal ownership to the animal cruelty statutory scheme in
2009. See LAWS OF 2008, ch. 287. At the time, the Senate Bill Report on the proposed
statutory change explained:
People are allowed to mistreat animals time and again because the penalties involved are not severe enough. Right now, those who are convicted of killing or severely abusing animals are only prohibited from owning a like animal for a period of two years. Current law does not prohibit these offenders from owning other animals even though they are likely to mistreat them as well. . . . Many other states have already passed more stringent penalties for animal mistreatment and Washington should follow suit.
S.B. REP. ON SUBSTITUTE S.B. 5402, 61st Leg., Reg. Sess. (Wash. 2009) (emphasis
added). Ms. Winger contends that this passage reveals the legislature intended for its
strictest punishments to reach only repeat offenders. She misreads that passage. The
Senate Bill Report reveals an intent to quell the possibility of recidivism by making
lifetime bans on animal ownership possible.
Moreover, although she was sentenced under the former statute, since the
commission of Ms. Winger’s crimes the legislature made a lifetime ban on animal
ownership mandatory for first degree animal cruelty rather than permissive. See LAWS OF
2020, ch. 158, §§ 5-6. Thus, legislative history, as well as the former statute’s very text,
16 No. 39502-2-III State v. Winger
evidences the legislature’s ongoing intent to expand protection of animals by imposing
increasingly strict punishments on offenders. This factor does not suggest
disproportionality.
3. Punishment in other jurisdictions
The third Fain factor requires this court to analyze what punishment Ms. Winger
would have received in other jurisdictions for the same offenses. To analyze this factor,
we do not need to conduct “an exhaustive analysis of laws in other jurisdictions” if it can
be established that Washington’s law is at least “similar” to legislation throughout the
country. Morin, 100 Wn. App. at 31-32. Moreover, because a person “could have
received” a different “sentence in another jurisdiction, that fact alone is not dispositive.”
State v. Reynolds, 21 Wn. App. 2d 179, 199, 505 P.3d 1174 (2022).
Ms. Winger contends that RCW 16.52.200(4)(b), making a lifetime ban on any
animal ownership mandatory for a first degree animal cruelty conviction, is the harshest
law in the country. But Ms. Winger was not sentenced under the present statute. Thus, the
present statute’s constitutionality is not properly before this court, and we need not reach
that question. The sentencing prohibition on Ms. Winger owning any animals was instead
made under former RCW 16.52.205(5)(a), which gave the trial court discretion to impose
such a lifetime ban.
17 No. 39502-2-III State v. Winger
Former RCW 16.52.205(5)(a) is similar to legislation in other states. For example:
• In Colorado, in the event of a conviction for felony animal cruelty, trial courts
must enter an order prohibiting the defendant from owning a pet animal for a
period of three to five years unless a treatment provider specifically recommends
against such a prohibition and the court agrees with the provider’s assessment.
Colo. Rev. Stat. § 18-9-202(a.5)(V.5).
• In Alaska, trial court judges have discretion to prohibit a defendant from owning
animals for up to 10 years in the event of a felony or misdemeanor conviction for
animal cruelty. Alaska Stat. § 11.61.140(g)(3), (h)(3).
• In Oregon, for various animal cruelty offenses, judges are required to impose a
5-year or 15-year prohibition of ownership of animals in the same genus as the
abused animal. Or. Rev. Stat. § 167.332(1)(a)-(b).
• Maine allows lifetime bans. In Maine, trial courts are authorized to prohibit
individuals convicted of a specific class of animal cruelty offense from owning
animals “for a period of time that the court determines to be reasonable, up to
and including permanent relinquishment.” Me. Stat. tit. 17, § 1031.(3-B)(D)(1)
(emphasis added). For another class of offense, Maine trial courts are required
to impose such a prohibition, “up to and including permanent relinquishment.”
18 No. 39502-2-III State v. Winger
Me. Stat. tit. 17, § 1031(3-B)(D)(2). And trial courts are permitted to “impose any
other reasonable restrictions on a defendant’s future ownership or custody of an
animal as determined by the court to be necessary for the protection of animals.”
Me. Stat. tit. 17, § 1031(3-B)(D)(3).
• Virginia ostensibly allows lifetime bans. In Virginia, “[a]ny person convicted of
[animal cruelty] may be prohibited . . . from . . . ownership of companion animals.”
Va. Code Ann. § 3.2-6570(G).
• In Delaware, “[a]ny person convicted of [felony animal cruelty] shall be prohibited
from owning or possessing any animal for 15 years after said conviction, except
for” animals raised for resale. Del. Code Ann. tit. 11, § 1325(d).
• Illinois ostensibly allows lifetime bans. In Illinois, trial courts “may order that the
convicted person . . . may not own . . . any other animals for a period of time that
the court deems reasonable.” 510 Ill. Comp. Stat. 70/3.04(c) (emphasis added).
Although other states’ legislation may not precisely track Washington’s, former
RCW 16.52.205(5)(a) is at the very least not dissimilar to the norm in several other states.
And at least a handful of states—such as Maine, Virginia, and Illinois, listed above—
apparently allow trial courts discretion to impose a lifetime ban. And Ms. Winger was
punished under such a discretionary statute, not the present mandatory statute. The former
19 No. 39502-2-III State v. Winger
statute under which Ms. Winger was punished is not far outside the mainstream under
national norms.
4. Punishment in Washington for other offenses
The final Fain factor asks this court to compare Ms. Winger’s punishment to
punishments for other offenses in Washington.
It is not unusual in Washington for a convicted person to lose privileges as a result
of their criminal activity. For instance, Washington revokes driver’s licenses for vehicle-
related offenses that do not necessarily involve any harm to persons or property. See
RCW 46.65.020; cf. State v. Clifford, 57 Wn. App. 127, 129-30, 787 P.2d 571 (1990)
(driving is a privilege, not a right). Such revocations do not raise constitutional concerns
even though, for many people, the ability to operate a motor vehicle is essential to their
participation in society.
Ms. Winger contends her punishment is severe compared to others in Washington
because, under the statutory scheme, there is no chance for her to ever restore her ability
to own animals. See RCW 16.52.200(5) (allowing convicted individuals to petition for
restoration of their legal ability to own animals, but only if their convictions are in the
second degree). She attempts to compare the prohibition on animal ownership to
prohibitions on firearm ownership. Ms. Winger notes that, except for those convicted of
20 No. 39502-2-III State v. Winger
the most severe crimes, convicted individuals are able to petition for restoration of the
right to own guns after a few years. See RCW 9.41.040(1)(a), (4)(a); State v. Swanson,
116 Wn. App. 67, 70-71 & n.2, 76, 65 P.3d 343 (2003). She notes this is a contrast to her
situation, where restoration will never be an option, and argues this supports a conclusion
that her punishment is unconstitutionally cruel.
Ms. Winger’s comparison to gun ownership undermines her argument. Gun
ownership is constitutionally protected. See N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,
__ U.S. __, 142 S. Ct. 2111, 2135, 213 L. Ed. 2d 387 (2022). Pet ownership is not.
Despite its constitutional protection, gun ownership can, at times, be restricted based on
compelling interests. See District of Columbia v. Heller, 554 U.S. 570, 595, 128 S. Ct.
2783, 171 L. Ed. 2d 637 (2008). If a government can constitutionally forbid convicted
individuals from owning guns—a specifically enumerated constitutional right—it can
certainly limit convicted individuals’ ability to own animals, which gets no mention in
constitutional text.
None of the applicable factors support a conclusion that the ban on ownership of
animals is grossly disproportionate to Ms. Winger’s crimes. The punishment therefore
survives constitutional scrutiny.
21 No. 39502-2-III State v. Winger
Restitution
RCW 16.52.200(6) requires an individual convicted of animal cruelty “be liable
for reasonable costs incurred . . . by law enforcement agencies, animal care and control
agencies, or authorized private or public entities involved with the care of the animals.”
The provision goes on to define “reasonable costs” to include “expenses of . . . the
animal’s care, euthanization, or adoption.” RCW 16.52.200(6). Here, the trial court
awarded restitution to two organizations that cared for the animals after the animals were
taken from the Wingers’ property.
Ms. Winger challenges the restitution award. She does not dispute the trial court
had a legal basis for imposing restitution. She also does not claim the amounts awarded
were inaccurate. Instead, she claims the restitution amount was unreasonably high
because it exceeded the cost of euthanization.
We review a trial court’s restitution order for abuse of discretion. State v. Deskins,
180 Wn.2d 68, 77, 322 P.3d 780 (2014). A trial court’s decision is an abuse of discretion
when it is based on untenable grounds or untenable reasons, or is otherwise manifestly
unreasonable. Id. Ms. Winger’s challenge falls far short of meeting this standard.
The restitution statute at issue plainly states a convicted individual may be
held responsible for reasonable costs associated with “the animal’s care, euthanization, or
22 No. 39502-2-III State v. Winger
adoption.” RCW 16.52.200(6) (emphasis added). It does not limit a defendant’s
obligations to the least expensive of these options. In cases of extreme abuse or neglect,
requiring months or years of rehabilitation, euthanasia will often be less expensive than
providing medical care. Nevertheless, the statute allows care providers to make an
appropriate decision based on an animal’s medical needs, not cost. When it is medically
appropriate to provide care, a convicted person is liable for this expense. The trial court
did not abuse its discretion in awarding restitution.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Ms. Winger filed a pro se statement of additional grounds for review (SAG),
raising what appear to be five points. Three of Ms. Winger’s grounds appear to be based
on facts outside the record. These include a claim of ineffective assistance of counsel
based on counsel’s alleged failure to introduce veterinary records; a claim that
prosecutorial delay caused the unavailability of an expert witness; and allegations of
professional misconduct by one of the State’s veterinarians. We cannot review facts
outside the record of this direct appeal. Ms. Winger’s recourse for these claims is to file a
personal restraint petition. See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251
(1995).
23 No. 39502-2-III State v. Winger
Ms. Winger also appears to request that we address arguments raised in a brief
filed in the Division Two case of State v. Shoop, 22 Wn. App. 2d 242, 510 P.3d 1042
(2022). Ms. Winger does not explain why her case is analogous to Shoop or what aspects
of the Shoop case are pertinent to her appeal. Division Two rejected all of Mr. Shoop’s
arguments in a partially published opinion. See Shoop, 22 Wn. App. 2d at 245-46. The
Supreme Court subsequently affirmed Division Two’s decision. See State v. Shoop,
No. 101196-2 (Wash. May 4, 2023), https://www.courts.wa.gov/opinions/pdf/
1011962.pdf. We decline to dig through the Shoop appellate brief in order to discern why
this already-rejected argument might apply to Ms. Winger’s case. “Judges are not like
pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956
(7th Cir. 1991). This ground for relief fails as inadequately raised.
Finally, Ms. Winger attached a document to her SAG entitled “Issues with Animal
Cruelty Cases & Specifically Mason [County] Sheriff’s Dept.” SAG at 3-10. Simply
attaching this document is insufficient to “inform the court of the nature and occurrence
of alleged errors.” RAP 10.10(c). We therefore decline to address the attached document.
24 No. 39502-2-III State v. Winger
CONCLUSION
The judgment and sentence are affirmed.
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.
_________________________________ Pennell, J.
WE CONCUR:
______________________________ Fearing, C.J.
______________________________ Staab, J.