State v. Alvarez

904 P.2d 754, 128 Wash. 2d 1
Washington Supreme Court·Decided November 2, 1995·No. No. 61867-4·Published·Cited by 172 cases

Opinions

Smith, J.

— Appellant David A. Alvarez seeks review of a decision of the Court of Appeals, Division I, affirming a King County Superior Court (Juvenile Department) find[4] ing of "guilty” of harassment in violation of RCW 9A.46.020 and "guilty” of cruelty to animals in violation of former RCW 16.52.070, and remanding to that court a finding of "guilty” of harassment in violation of RCW 9A.46.020 for entry of findings of ultimate facts. We granted review. We affirm.

Questions Presented

The questions presented in this case are (1) whether the court of appeals erred in holding that a conviction for harassment under the Anti-Harassment Act of 1985 can be based upon a single act; (2) whether the court of appeals erred in remanding Appellant’s conviction of "guilty” of harassment to the trial court for entry of findings of ultimate facts; and (3) whether the remand violated state and federal constitutional prohibitions against double jeopardy.

Statement op Facts

On December 7, 1990, Appellant David A. Alvarez was charged by information in two cases in the King County Juvenile Court. Case one, cause number 91-8-01699-4, charged him with three counts of cruelty to animals in violation of RCW 16.52.070 and one count of harassment in violation of RCW 9A.46.020 under the Anti-Harassment Act of 1985. Case two, cause number 91-8-02659-1, charged him with one count of harassment in violation of RCW 9A.46.020.

Count I of the information in case one charged Appellant with the offense of cruelty to animals:

That the respondent David A. Alvarez, in King County, Washington, on or about 7 December 1990, did torture, torment, cruelly beat, mutilate or cruelly kill an animal, to-wit: a pigeon;
[5] Contrary to RCW 16.52.070, and against the peace and dignity of the state of Washington!1}

Count IV of the information in case one charged Appellant with the oifense of harassment:

That the respondent David A. Alvarez, in King County, Washington, on or about 7 December 1990, did, without lawful authority, knowingly threaten to cause bodily injury in the future to Pam Koenig, or any other person, or to cause physical damage to the property of Pam Koenig, and the respondent by words or conduct placed Pam Koenig in reasonable fear that the threat would be carried out;

Contrary to RCW 9A.46.020, and against the peace and dignity of the state of Washington.

(Emphasis added.)

The information in case two also charged Appellant with the oifense of harassment:

That the respondent David A. Alvarez, in King County, Washington, on or about 27 March 1991, did, without lawful authority, knowingly threaten David Paul to cause bodily injury in the future to David Paul or any other person or to cause physical damage to the property of David Paul the person threatened or maliciously to do any other act which is intended to substantially harm or another with respect to his or her physical or mental health or safety and the respondent by words or conduct placed David Paul in reasonable fear that the threat would be carried out',
Contrary to RCW 9A.46.020, and against the peace and dignity of the state of Washington.

(Emphasis added.)

On July 29, 1991 and on July 30, 1991, the Honorable Faith Enyeart Ireland, sitting in juvenile court, held a fact-finding hearing in both cases and a disposition hearing on October 2,1991. In case one, Judge Enyeart Ireland [6] found Appellant Alvarez "guilty” of one count of harassment and "guilty” of two counts of cruelty to animals. In case two, the court found Appellant "guilty” of one count of harassment.

On January 16, 1992, Judge Enyeart Ireland entered findings of fact and conclusions of law for case one which charged three counts of cruelty to animals and one count of harassment, and provided in relevant part:

Findings of Fact
II.
Pam Koenig has lived next door to the Alvarez family in Seattle, King County, for five years. The respondent has lived next door during that time.
III.
Koenig was home on 7 December 1990 when she saw respondent in his yard. She was in her bedroom on the second floor of her house, about 25 - 30 feet away from respondent. There is a 6 - 7 foot fence between their properties.
IV.
Koenig stated that she saw the respondent go into a pigeon coop, remove a bird, throw the bird down to the ground and then beat it with a shovel. She said she saw the bird convulsing.
V.
Koenig stated that she said to respondent, "That’s a start.” The respondent replied, "Shut up bitch or I’ll take you out too.” The respondent lifted up the headless body of the pigeon and held it up as he was making his comment to her. Respondent did not advance toward her when making his statement.
VI.
Koenig was extremely fearful because she says she believed [7] he would carry out his threat. She believed this because of what she had just seen, which she described as cruelly beating a bird into the ground. She was upset and was unable to return to work.
XV.
Respondent said that on the day when Koenig saw him, he broke one pigeon’s neck and then cut its’ [sic] head off when he saw it was still moving.
Conclusions of Law
II.
The court finds the respondent not guilty as to Count I, Cruelty to Animals.
III.
As to Counts II and III, respondent’s actions were not done under the prescribed methods of killing a pigeon. His actions were vindictive and angry. He killed the birds in a deliberate and cruel fashion.
IV.

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State v. Alvarez, 904 P.2d 754, 128 Wash. 2d 1 (Wash. 1995).

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