State v. Nelson

219 P.3d 100, 152 Wash. App. 755
Court of Appeals of Washington·Decided October 15, 2009·No. 27000-9-III, 27026-2-III·Published·Cited by 6 cases

Opinion

219 P.3d 100 (2009)

STATE of Washington, Respondent,
v.
Peter S. NELSON, Appellant.
State of Washington, Respondent,
v.
Alfredo Lee Renteria, Appellant.

Nos. 27000-9-III, 27026-2-III.

Court of Appeals of Washington, Division 3.

October 15, 2009.

*102 William D. Edelblute, Scott Richard Hill, Attorney at Law, Spokane, WA, for Appellants.

Mark Erik Lindsey, Spokane County Prosecuting Attorneys, Spokane, WA, for Respondent.

SWEENEY, J.

¶ 1 We have consolidated these separate appeals for this opinion since both the essential assignments of error and the facts are the same. RAP 3.3(b). Both defendants appeal from convictions of animal fighting and operating an unlicensed private kennel. Both contend that the trial judge abused her discretion by allowing an expert from the Humane Society to express an opinion on the ultimate issue of fact, namely that the evidence showed that the defendants intended to engage in dogfighting exhibitions. We conclude that the expert's opinion was well supported by the evidence, was an appropriate opinion for an expert, and that the trial judge, therefore, did not abuse her discretion by allowing the expert to express the opinion even if it encompassed an ultimate issue of fact. We also find no merit in the defendants' other assignments of error and, therefore, affirm the convictions.

FACTS

¶ 2 In June 2006, an animal protection officer was dispatched to a house on east Utah Street in Spokane, Washington, following reports of a dogfight. By the time the officer arrived, the owner of the two pit bull dogs, Peter Nelson, had already arrived and stopped the fight. Both dogs suffered multiple puncture wounds, and one dog's ear was ripped in half. Police did not file charges.

¶ 3 In April 2007, Spokane County animal protection officer Nicole Montano responded to a complaint that a man was beating a dog at the same east Utah Street address. Ms. Montano went to the edge of the property and saw eight pit bulls in the backyard. Two of the dogs did not have access to water, and several of the dogs were either on heavy chains or kenneled together or separately.

¶ 4 Ms. Montano then searched Spokane County records and found that there was no licensed kennel at the east Utah Street address. But two dogs at the address were licensed, one each to Alfredo Renteria and Peter Nelson. Mr. Renteria had licensed numerous pit bulls at the east Utah Street address since 2001.

¶ 5 Police applied for and were granted a warrant to search the property. Members of the Spokane County Animal Control, the Washington State Gambling Commission, and the Spokane County Sherriff's Office SWAT team executed the search warrant. Mr. Nelson was present during the search. They found:

¶ 6 From a mudroom/utility room in the house:

• Veterinary medical supplies including Betadine surgical scrub, and antiseptic sudsing skin cleanser, blood-stop powder, mineral and vitamin supplements, 500 mg amoxicillin capsules, dexamethasone sodium phosphate injection for horses, SWAT Original fly repellent ointment for wounds and sores, Pet-Otic ear cleaner for dogs and cats, oil skin treatment, and aloe vera and jojoba skin salves for dogs.
• A veterinary kit containing supplies such as syringes, surgical blades, ointments, scissors and various veterinary drugs.
*103 • A basket muzzle, three harnesses, three collars, a pull toy, and training tools.
• A metal dog kennel or cage. Officers found seven or eight kennels during the search, some inside and some outside.

¶ 7 From the southeast bedroom of the house:

• A receipt from a purchase by Mr. Nelson at a store called "Dogtown Company."
• A t-shirt imprinted with a photo of Mr. Nelson and a dog and the name "Capone."
• A knife-shaped chew toy.
• A handwritten IOU note from someone named Terry Naffziger to Mr. Nelson for $1,200.
• Periodicals about pit bulls.
• Photo album with photos of dogs.
• Mail addressed to Mr. Nelson at the east Utah Street address.
• A safe with $414 in U.S. currency and notes.

¶ 8 From the living room of the house:

• A mouse pad with a picture of a chained pit bull.

¶ 9 From a storage shed at the back of the garage:

• Notebooks and papers that the State characterized as "dog training logs."
• In dresser drawers, mail addressed to Alfredo Renteria at the east Utah Street address.
• A treadmill.
• A notebook and a receipt book.

¶ 10 From the backyard:

• A dog collar hooked to a chain and cable attached to a pole pounded vertically into the ground.
• Nylon and metal chain dog collars.
• Two dog tags indicating City of Spokane pet licenses for "Shorty" and "Rita."

¶ 11 Some of the items found were for horses. But there were no horses on the property. The search team also seized eight dogs from the property. A veterinarian was present during the search and examined the dogs.

¶ 12 The State charged Mr. Nelson with one count of animal fighting, one count of transporting or confining an animal in an unsafe manner, one count of operating an unlicensed private kennel, and one count of possession of a controlled substance (marijuana). The State charged Mr. Renteria with one count of animal fighting, one count of transporting or confining an animal in an unsafe manner, one count of operating an unlicensed private kennel, one count of possession of a controlled substance (marijuana), and one count of first degree animal cruelty.

¶ 13 The cases were tried together. The veterinarian testified about the physical condition of the dogs seized from the property. A dog named "Callie" was excessively thin and had numerous old scars on both forelimbs, on her right rear leg, and on top of her head. A dog named "Zeeda" had two recently torn ears, old wounds on both forelimbs and the right hip, and calluses on both forelimbs. A dog named "Chewy" had a torn left ear and an impression around its torso that indicated it likely had a belt attached to him one or two days before. A dog named "Rita" had sutures on its chest and calluses on its tail and hocks. A dog named "Fatty" had calluses on its wrist areas, the left rear heel, and collar rub to the skin on the throat. A dog named "Gorda" displayed a broken upper right canine tooth, collar abrasions on its throat, and calluses on its front carpuses (wrists) and rear heels.

¶ 14 The veterinarian testified that fights that arose spontaneously between or among the dogs could have caused all of the injuries except Callie's leg wounds. Callie's leg wounds were so numerous that they more likely resulted from human involvement. He also agreed that all of the veterinary supplies that were found in the mudroom could be used for horses. And he said that "lactated ringers" were used to rehydrate an animal suffering from dehydration or to flush out an animal's system in a veterinary surgical setting.

¶ 15 An officer photographed tattoos on Mr. Nelson's arms, legs, and back, at least some of which depict dogs. Th

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State v. Nelson, 219 P.3d 100, 152 Wash. App. 755 (Wash. Ct. App. 2009).

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