IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, Respondent, v. LOWELL W. STAMBAUGH, Appellant. Hunt, J. ?

Lowell W. Stambaugh appeals his conviction for first degree animal cruelty. He argues that (1) the trial court improperly instructed the jury, and (2) the prosecutor committed misconduct. In his Statement of Additional Grounds1 (SAG), Stambaugh argues that (3) he received an unfair trial, (4) the trial venue was improper, (5) the trial court erred in excluding Robert Keen?s testimony and Ross Glenn Stambaugh?s opinion testimony, (6) there was insufficient evidence to convict him of animal cruelty, (7) the trial court should have suppressed the statements Stambaugh made to the police, and (8) the trial court erred in issuing a no contact order as part of Stambaugh?s sentence. We affirm. 1 RAP 10.10(a). UNPUBLISHED OPINION No. 34900-1-II

34900-1-II FACTS I. Animal Cruelty Stambaugh owns property with at least two homes on it, one of which he rented to Melanie and Lori Church for four years. The Churches? home is approximately 70 yards from Stambaugh?s home. Stambaugh and the Churches both owned animals: The Churches owned a cat named Smokey, which was black in color with silver whiskers around its face. also owns cats. Before leaving for Alaska in the summer of 2005, Stambaugh noticed that one of his cats had been mauled. Because the Churches? cat, Smokey, had been on Stambaugh?s property, he Stambaugh

thought Smokey had attacked his cat. He did not think his cat would survive, but he did not have time to care for it before leaving. After Stambaugh returned from Alaska, his female cat gave birth to kittens, and

Stambaugh observed Smokey running out of his garage every time he opened the door. He feared that Smokey would attack or kill his kittens, who were often in the recesses of the garage. On October 29, Stambaugh opened his garage door and observed Smokey run out of the garage, slow down, and retreat under a tree limb about 40 yards away. Stambaugh thought Smokey was ?getting cocky? so he went back to his bedroom, retrieved a shotgun, pumped a round into the chamber, and went onto the porch. Stambaugh pumped the gun in the house so he would not startle the cat. Outside, Stambaugh fired the shotgun, which was filled with ?bird shot,?and hit Smokey. To Stambaugh?s surprise, Smokey did not die instantaneously. The Churches were in their driveway when they heard the shot. They looked for Smokey, 2

34900-1-II and Melanie phoned the police. The Churches found Smokey approximately 30 minutes after he was shot and immediately took him to the veterinary hospital, but Smokey died on the way. Neither Stambaugh nor the Churches were at home when Pacific County Sheriff?s Office Deputies Rick Goodwin and Ruder arrived at the scene. When Stambaugh returned home, Goodwin approached him on his porch and asked what had happened between him and his tenants that day. Stambaugh replied that he had shot a feral cat, noting that feral cats enter his garage to eat his cat?s food and that he previously shot coyotes and raccoons on his property. Goodwin asked Stambaugh what he had used to shoot the cat; Stambaugh answered that he shot the cat with a 12-gauge shot gun, loaded with birdshot. Stambaugh continued talking, stating that it was his property, he would do with it what he wished, and he would shoot anything or any animal he deemed destructive or feral. Goodwin read Stambaugh his Miranda2 rights, which Stambaugh waived. Stambaugh then showed the

officers where Smokey had been hiding and where he had been standing when he shot Smokey. The State charged Stambaugh with first degree animal cruelty and third degree malicious mischief for shooting Smokey. II. Criminal Rule 3.5 Hearing - Suppression of Stambaugh?s Confession The trial court held a Criminal Rule (CrR) 3.53 hearing to determine whether the statements Stambaugh made to Deputy Goodwin were admissible. Goodwin testified that his 2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 3 CrR 3.5 provides that ?[w]hen a statement of the accused is to be offered in evidence, the judge . . . shall hold . . . a hearing . . . for the purpose of determining whether the statement is admissible.? 3

34900-1-II initial intent in approaching Stambaugh was to ascertain his version of the incident, not to arrest him. After some discussion, Goodwin read Stambaugh his Miranda rights, which Stambaugh waived. Goodwin could not remember exactly when he read Stambaugh his rights, nor was it noted in Goodwin?s report, but Goodwin was 100 percent sure that he read Stambaugh his Miranda rights at some point. Goodwin testified that he was 90 percent sure he had read Stambaugh his rights before asking what he had used to shoot the cat. Goodwin was 100 percent positive that he had read Stambaugh his rights (1) before asking him where he shot the cat, and (2) at least by the time he had asked Stambaugh what he had used to shoot the cat. The trial court found that Goodwin had asked Stambaugh questions, both before and after he read him his Miranda warnings, and Stambaugh was not in custody during this questioning. The trial court ruled, therefore, that Miranda warnings were not required before this questioning and the State could introduce into evidence all of Stambaugh?s statements to Goodwin. III. Motion to Exclude Stambaugh?s Defense Witnesses from Testifying The State filed a motion to exclude Stambaugh?s defense witnesses from testifying. The

State argued that Stambaugh?s witness list was incomplete because it did not contain pertinent contact information, and the description of the witnesses? testimony did not relate to the catshooting incident on October 29. Stambaugh filed an amended witness list. The State eventually contacted all witnesses by phone and interviewed them the day of the trial. The trial court then heard arguments on the State?s motion to exclude the testimony of all defense witnesses. In particular, the State argued that the trial court should exclude Robert 4

34900-1-II Keen?s testimony because he had not been at the scene on October 29, he did not see any cats with injuries, and he could not positively identify Smokey as the cat that was causing Stambaugh problems. Stambaugh conceded that Keen could not positively identify Smokey as the problem cat. Nonetheless, Stambaugh asserted that Keen would testify that at the time he was living with Stambaugh, there was only one cat matching Smokey?s description that was causing problems with Stambaugh?s cats. The trial court allowed Lawton Paddock and Ross Stambaugh to testify, but not Keen. IV. Trial Dr. Dannell Davis, a veterinarian at the Columbia Veterinary Hospital, testified that ?Smokey died of severe, severe traumatic wounds due to a gunshot wound.? Report of Proceedings (RP) at 187. The Churches testified that (1) Stambaugh had been introduced to Smokey on numerous occasions; (2) Stambaugh knew the cat he shot was Smokey; (3) Smokey was a sweet cat, who got along well with their and Stambaugh?s other animals; and (4) Smokey had been indoors when they went to bed that night. Lori Church also testified that Stambaugh had never complained to them about Smokey. Melanie Church testified that (1) she was in her driveway when she heard a shot; and (2) when she asked Stambaugh why he had shot Smokey, he replied, ?[H]e needs to stay off my property. I?ll shoot at any . . . thing I please.? ?This is my property. I?ll shoot whatever I want.?

RP at 151. Stambaugh disputed the Churches? version of the facts. Stambaugh testified he was 5

34900-1-II positive that the cat he shot was the black cat that had been causing problems; but he thought it was a feral cat because the Churches told him their cats were indoors at night. Stambaugh further testified that, after he shot the cat, (1) Melanie Church asked him why he did not just shoo the cat away; (2) when he told her this was ineffectual, she responded that she was going to call the Sheriff?s Department; (3) Stambaugh then told Melanie Church, ?[I]f you must, you must but I can?t prevent you.?; and (4) he then left the residence because he ?didn?t want to have a long conversation with an irate woman.? RP at 278. On cross examination, the State asked Stambaugh whether the Churches were lying. State: You heard -- I?m assuming you heard the testimony, the Churches, Melanie and Lori Church say that you were introduced plenty of times to Smokey, the cat you shot. You heard that testi- -Stambaugh: Which is untrue, just like their description of -.... Stambaugh: I haven?t agreed with several points of their testimony, in fact a large portion of it. State: So you?re saying they?re lying. Stambaugh: That works. .... State: Did you laugh at her after you shot her cat that day? Stambaugh: No. That wasn?t -- it -State: You didn?t. So she?s lying about that too; is that what you?re saying? Stambaugh: It?s a matter of characterization, yes. State: Are you saying she?s lying about that now too? RP at 291-94. Defense counsel objected that the question was argumentative. Before the trial court could rule, Stambaugh testified, ?Yes. Yes, I?ll say she lied.? RP at 294. The court overruled the objection and allowed Stambaugh?s answer. The defense presented two other witnesses, Paddock and Stambaugh?s father, Ross Stambaugh. Paddock testified that (1) he had stayed at Stambaugh?s house many times, (2) he 6

34900-1-II was frequently awakened by cats fighting, (3) he would go outside to break up the fights, (4) the cat causing the problems was dark in color, and (5) he frequently would chase off this dark colored cat, but it would come back. Ross Stambaugh testified that (1) his son?s policy on animals was that if they were a nuisance, they would have to go; and (2) Ross Stambaugh saw Smokey on his son?s property, frequently engaging in cat fights. The trial court did not allow Ross Stambaugh to testify that, in his opinion, Smokey was a tom cat and that he stalked his son?s cats. VI. Jury Instructions The parties disagreed on the applicable law and the jury instructions. Stambaugh argued that he could lawfully shoot the cat in defense of his property. The parties provided the trial court with two cases,4 State v. Long, 98 Wn. App. 669, 991 P.2d 102, review denied, 140 Wn.2d 1025 (2000), and Drolet v. Armstrong, 141 Wash. 654, 252 P. 96 (1927). Based on these two cases, the trial court ruled that the following passage could be used in a jury instruction: ?[A] person has a natural right to defend and protect his domestic fowls and in doing so may kill dogs engaged in injuring and destroying them if there is reasonable and apparent necessity therefore.? RP at 77. After further discussion of the jury instructions, the trial court instructed the jury that to convict Stambaugh of first degree animal cruelty, the jury must find beyond a reasonable doubt, among other things, ?[t]hat the defendant acted without legal authority.? Clerk?s Papers (CP) at 44. The court also instructed the jury, in instruction 10, that ?[a] person acts with legal authority 4 The record before us does not contain the parties? proposed jury instructions although the record is clear that they provided them to the trial court. The record also shows that on May 25, 2006, at 8:00 a.m., the trial court and counsel met in the trial court?s chambers to discuss the jury instructions, but this discussion was not reported. 7

34900-1-II where there is reasonable and apparent necessity to perform that act.? CP at 45. In instruction

11, the court instructed the jury that ?[e]very person has a natural right to defend and protect his animals from injury or destruction by other animals if such defense is reasonable and necessary considering all the surrounding circumstances or events, both before and during such defense.? CP at 46. Both the State and Stambaugh objected to instructions 10 and 11. The jury found Stambaugh guilty of first degree animal cruelty, but not guilty of third degree malicious mischief. The trial court sentenced Stambaugh to 20 days in jail and ordered him to have no contact with the Churches for five years. Stambaugh appeals. ANALYSIS I. Jury Instructions Stambaugh argues that the trial court erred in drafting jury instructions 10 and 115 because 5 In his Brief of Appellant, Stambaugh incorrectly refers to instructions 11 and 12, when he is actually challenging instructions 10 and 11. Instructions 10 and 11 provide: Instruction No. 10 A person acts with legal authority where there is reasonable and apparent necessity to perform that act. Instruction No. 11 Every person has a natural right to defend and protect his animals from injury or destruction by other animals if such defense is reasonable and necessary considering all the surrounding circumstances or events, both before and during such defense. CP at 45-46. In contrast, Instruction No. 12 provides: A person commits the misdemeanor of malicious mischief in the third degree when he knowingly and maliciously causes physical damage to the property of another in an amount not exceeding $50.00. CP at 47. 8

34900-1-II they erroneously state the standard for lawful use of deadly force against a trespassing and predatory animal.6 More specifically, he argues that the instructions fell short in three primary ways: (1) The instructions were unclear that Stambaugh?s actions need not have been necessary; (2) the instructions were unclear as to whether Stambaugh was entitled to rely on the facts as they appeared to him at the time; and (3) the instructions should have stated that, to be lawful,

Stambaugh?s actions must have been subjectively, not objectively, reasonable. These arguments fail. A. Standard of Review Jury instructions are appropriate if they allow the parties to argue their theories of the case, do not mislead the jury, and do not misstate the law. State v. Stevens, 158 Wn.2d 304, 308, 143 P.3d 817 (2006). We review de novo whether the jury instructions adequately state the applicable law, in the context of the jury instructions as a whole. Id.; State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006). B. ?Except as Authorized by Law? The State charged Stambaugh with first degree animal cruelty by intentionally and unlawfully causing physical injury to an animal under RCW 16.52.205(1), which provides: ?A person is guilty of animal cruelty in the first degree when, except as authorized in law, he or she intentionally . . . (b) causes physical injury to . . . an animal.? (Emphasis added.) Stambaugh asserted at trial that he was authorized by law to shoot Smokey in defense of 6 The State argues that Stambaugh may not have preserved his objections to Instructions 10 and 11. We disagree. Stambaugh objected to both instructions during trial. 9

34900-1-II his property. The trial court and the parties disagreed about how to instruct the jury on ?except as authorized by law? within the meaning of the statute. Case law holds generally that killing an animal is a necessity in defense of property only if the animal is damaging the property at the time of the killing and there is no legal alternative to killing it. 10

34900-1-II 1. Development of the Necessity Defense In State v. Burk, the State charged the defendant with unlawfully killing protected elk.

114 Wash. 370, 195 P. 16 (1921). Burk argued that the trial court erred in preventing him from arguing to the jury that he was legally entitled to kill the elk because they had been destroying his crops and livestock over a period of time and his repeated past efforts to drive them from his premises had failed to keep them away. Id. The Supreme Court agreed. Based on the constitutional right to defend one?s property, id. at 374, the Court held that Burk ?had a constitutional right to show, if he could, that it was reasonably necessary for him to kill these elk for the protection of his property.?7 Id. at 376 (emphasis added). The Court distinguished, however, killing animals that were merely trespassing on private property, absent a showing that the trespassing animals were causing damage at the time, which created the necessity for killing them. In State v. Bailey, the jury convicted the defendant as an accomplice to hunting,

controlling, and possessing a two-point deer buck out of season in an area with a three-point antler restriction, claiming that shooting the buck was ?necessary? because it was suffering. 77 Wn. App. 732, 733-34, 893 P.2d 681 (1995). Relying on Burk, and other cases, Division Three of our court noted, ?Courts have recognized the necessity defense in wildlife cases under limited circumstances where wildlife was killed to protect property,? but a necessity defense also 7 See also Drolet, 141 Wash. at 654. Drolet brought an action to recover damages for Armstrong?s killing of his two lost dogs that were attacking Armstrong?s chickens at the time of their death. 141 Wash. at 654-55. Relying on Burk, the Court held that a person may kill a vicious animal in defense of himself, others, or damage to property, but that the killing is justified only when the animal is actually doing the damage. Drolet, 141 Wash. at 656-67. 11

34900-1-II ?requires proof by a preponderance of the evidence that there was no legal alternative.?8 Bailey, 77 Wn. App. at 740-41 (emphasis added). The court rejected Burk?s ?mercy killing? as ?necessary,? noting that (1) Burk had a legal alternative to killing the injured deer -- notifying the Wildlife Department; and (2) allowing such a necessity defense would be subject to ?enormous? ?abuse.? Id. at 740. In State v. Vander Houwen, the jury convicted the defendant of unlawful hunting of big

game. 128 Wn. App. 806, 810, 115 P.3d 399 (2005), review granted, 157 Wn.2d 1021 (2006). After numerous complaints to the Washington State Department of Fish and Wildlife, Vander Houwen shot and killed elk that were damaging his orchards. Id. at 809. Vander Houwen presented a necessity defense at trial, and the trial court provided a jury instruction based on 11 Washington Practice: Washington Pattern Jury Instruction: Criminal 18.02, at 160 (Supp. 2005) (WPIC).9 Vander Houwen, 128 Wn. App. at 810. On appeal, Vander Houwen argued, based on Burk, that the trial court erred in declining to give his ?constitutional right instruction? -- an absolute right to kill animals on his property. Vander Houwen, 128 Wn. App. at 812. Three of our court disagreed. 8 More specifically, Division Three stated that a defendant may assert a necessity defense when the physical forces of nature or the pressure of circumstances cause the accused to take unlawful action to avoid a harm which social policy deems greater than the harm resulting from a violation of the law. The defense is not applicable . . . where a legal alternative is available to the accused. Bailey, 77 Wn. App. at 739 (quoting State v. Diana, 24 Wn. App. 908, 913-14, 604 P.2d 1312 (1979)) (emphasis added). 9 See infra note 10. 12 Division

34900-1-II Division Three noted that Vander Houwen had provided three proposed jury instructions, two based on Burk and one patterned after WPIC 18.02. Vander Houwen, 128 Wn. App. at 811. The court held that under Burk, a person does not have an absolute constitutional right to kill an animal in defense of property; rather, under Burk, a person can kill an animal in defense of his property only if the person shows that such killing was necessary. Vander Houwen, 128 Wn. App. at 812. Thus, Division Three affirmed, holding that ?the trial court had a tenable basis to reject Mr. Vander Houwen?s proposed absolute defense instructions.? Id. at 812. 1. Instruction number 10 The trial court instructed the jury that to convict Stambaugh of first degree animal cruelty, it must find beyond a reasonable doubt, among other things, ?[t]hat the defendant acted without legal authority.? CP at 44. In instruction number 10, the trial court instructed the jury that ?[a]

person acts with legal authority where there is reasonable and apparent necessity to perform the act.? CP at 45. And although both the State and Stambaugh objected to this instruction at trial, the State defends the instruction on appeal, arguing that case law supports killing an animal as lawful if such killing is reasonably necessary to protect one?s property. Instruction number 10 derives from Burk, in which the Court held, ?[I]t may be justly said that one who kills an elk in defense of himself or his property, if such killing was reasonably necessary for such purpose, is not guilty of violating the law.? 114 Wash. at 376 (emphasis added). Instruction number 10 essentially allowed Stambaugh a broader defense than that to which the law entitled him: It did not require him to prove that it was necessary for him to kill Smokey in order to protect his cats or that there was no reasonable legal alternative to the 13

34900-1-II killing.10 Nonetheless, even under this defense-favorable language of instruction number 10, the jury did not find an ?apparent necessity? for Stambaugh to kill Smokey. ??[N]ot every omission or misstatement in a jury instruction relieves the State of its burden? so as to require reversal.? State v. Williams, 158 Wn.2d 904, 917, 148 P.3d 993 (2006) (quoting State v. Berube, 150 Wn.2d 498, 505, 79 P.3d 1144 (2003)). The errors in the jury instructions here were harmless because they did not contribute to the jury?s guilty verdict. Id. (citing Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)). We

hold, therefore, that the trial court?s giving erroneous instruction number 10, which worked to Stambaugh?s benefit and did not prejudice him, is not reversible error. 2. Instruction number 11 In instruction number 11, the trial court instructed the jury that ?[e]very person has a 10 Instruction number 10 did not include WPIC 18.02 requirements, among others, that the killing was necessary and there was no legal alternative: For example, unlike WPIC 18.02, instruction number 10 did not require Stambaugh to show why he could not have called animal control to remove Smokey from his property and to require the Churches to keep Smokey off his property in the future. Instead of instruction number 10, the trial court should have given an instruction patterned after WPIC 18.02, which provides: Necessity is a defense to a charge of (fill in appropriate offense) if

(1) the defendant reasonably believed the commission of the crime was necessary to avoid or minimize a harm; and (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law; (3) the threatened harm was not brought about by the defendant; and (4) no reasonable [equally effective] legal alternative existed. This defense must be established by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty. 14

34900-1-II natural right to defend and protect his animals from injury or destruction by other animals if such defense is reasonable and necessary considering all the surrounding circumstances or events, both before and during such defense.? CP at 46. Although both the State and Stambaugh objected to this instruction at trial, the State defends the instruction on appeal. The State argues that instructions 10 and 11, in combination with the all of the jury instructions, allowed each party to argue its theory of the case; and, taken together, the instructions did not mislead the jury or misstate the law. Instruction number 11 also derives from case law, specifically Drolet, in which the Court held, ?[A] person has a natural right to defend and protect his domestic fowls and, in doing so, may kill dogs engaged in injuring and destroying them, if there is reasonable and apparent necessity therefor, to be determined by the trier of the facts.? 141 Wash. at 655-56 (emphasis added). The State views Stambaugh11 as arguing that the law of self-defense should apply to animal cruelty cases where defense of property is at issue. The State then argues, however, that we should decline Stambaugh?s invitation to consider this proposition because no case law supports it. We agree with the State that there is no case law directly on point establishing that a defendant may claim affirmative defense of property as Stambaugh poses. 11 Stambaugh?s primary assignments of error to the jury instructions focus on instruction 11. He argues that (1) his conduct did not need to be ?necessary? in order to establish the affirmative defense of property, and (2) the trial court should have instructed the jury that his actions could be subjectively reasonable to him, not reasonable to an ordinary person. We have already held

that the affirmative defense, defense of property, does not apply to the facts here; therefore, we will not further address these assignments of error. 15

34900-1-II Nonetheless, case law holds generally that a person may kill an animal only if the animal is damaging the property at the time the person kills the animal and there is no legal alternative to killing it. See M. L. Schellenger, Annotation, Civil Liability of Landowner for Killing or Injuring Trespassing Dog, 15 A.L.R. 2d 578 (1951). That was not the case here, however. Here, there is no evidence that Smokey was harming Stambaugh?s cats or other property when Stambaugh shot him. Thus, even if instruction number 11 erroneously omitted this legal requirement, such omission did not prejudice Stambaugh. Instruction 11 instructed the jury that Stambaugh had an absolute defense of necessity, a far more advantageous instruction for him than if the trial court had utilized the WPIC or RCW 9A.16.020.12 Accordingly, we hold that the trial court?s instructional errors were harmless and, 12 As with instruction number 10, instruction number 11 also worked to Stambaugh?s benefit. A defense-of-property instruction that properly stated the law, utilizing RCW 9A.16.020(3) and WPIC 17.02, would have made the jury more likely to convict him, not less, because the statute allows the use of force against a person; it does not provide for the use of force against an animal. RCW 9A.16.020(3) provides: The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases: .... (3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary. (emphasis added.) WPIC 17.02 provides: It is a defense to a charge of _____________ that the force [used] [attempted] [offered to be used] was lawful as defined in this instruction. The [use of] [attempt to use] [offer to use] force upon or toward the person of another is lawful when [used] [attempted] [offered] . . . in preventing or attempting to prevent . . . [a malicious trespass or other malicious interference with real or personal property lawfully in that person?s possession,] and when the force is not more than is necessary. 16

34900-1-II therefore, they do not require reversal. See Williams, 158 Wn.2d at 917. II. Improper Venue Stambaugh argues in his SAG that because he had recent brushes with the legal system concerning property rights, he could not have received a fair trial. We treat this argument as a challenge to venue. A defendant may move for a change of venue if ?he believes he cannot receive a fair trial in the county where the action is pending.? CrR 5.2(a)(2). In general, a defendant waives a challenge to venue when the court begins to hear evidence. See State v. Dent, 123 Wn.2d 467, 479-80, 869 P.2d 392 (1994) (discussing exceptions to this rule, such as later discovered evidence). Stambaugh did not challenge venue below. Thus, he waived this challenge and cannot raise this issue for the first time on appeal. Therefore, we do not consider it further. III. Confession Stambaugh also argues in his SAG that the trial court should have suppressed his confession because the deputies did not read him his Miranda rights until at least five minutes into his interview. This argument also fails. The person [using] [or] [offering to use] the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of [and prior to] the incident. The [State] [City] [County] has the burden of proving beyond a reasonable doubt that the force [used] [attempted] [offered to be used] by the defendant was not lawful. If you find that the [State] [City] [County] has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty. (Emphasis added.) 17

34900-1-II It is undisputed that Goodwin asked Stambaugh questions, both before and after Goodwin read the Miranda warnings. Following the CrR 3.5 hearing, the trial court ruled that Stambaugh

was not in custody during this time and, therefore, all of his statements were admissible because Miranda did not apply. ?[F]indings of fact entered following a CrR 3.5 hearing will be verities on appeal if unchallenged.? State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997). Such is the case here. Because Stambaugh does not challenge on appeal the trial court?s finding of fact that he was not in custody when Goodwin interviewed him,13 Miranda does not apply. Therefore, we do not further consider this argument. IV. Prosecutorial Misconduct Stambaugh also argues that the prosecutor committed reversible error by asking him whether the Churches were lying. We agree that the prosecutor?s misconduct, but we disagree that this misconduct warrants reversal. A. Misconduct A prosecutor commits misconduct when his or her cross-examination seeks to compel a witness?s opinion about whether another witness is telling the truth or lying. State v. Suarez13 In his SAG, the appellant need only identify the ?nature and occurrence of alleged errors.? RAP 10.10(c). Therefore, we consider Stambaugh?s Miranda challenge to an extent. We are ?not obligated to search the record? for support of the appellant?s claims, but if we can easily find the pertinent portions of the record, we will address it. Id. Looking at the record independently, we note that there is substantial evidence sufficient to persuade a fair-minded rational person that a reasonable person in Stambaugh?s position would not have believed his freedom was curtailed to a degree associated with arrest. Again, because Stambaugh was not in custody, there was no requirement that Goodwin read his Miranda rights at any time, including at during the first five minutes of the interview. 18 questions constituted

34900-1-II Bravo, 72 Wn. App. 359, 366, 864 P.2d 426 (1994); State v. Padilla, 69 Wn. App. 295, 299, 846 P.2d 564 (1993). Such questioning invades the jury?s province and is unfair and misleading. State v. Casteneda-Perez, 61 Wn. App. 354, 362, 810 P.2d 74, review denied, 118 Wn.2d 1007 (1991). ?To prove prosecutorial misconduct, the defendant bears the burden of proving that the prosecuting attorney?s conduct was both improper and prejudicial.? State v. Weber, 159 Wn.2d

252, 270, 149 P.3d 646 (2006)), cert. denied, 127 S. Ct. 2986 (2007). Applying Padilla, we accept the State?s concession that the prosecutor committed misconduct when he asked Stambaugh three times on cross examination whether the Churches were lying. B. Waiver; Prejudice Thus, the remaining issues are whether Stambaugh preserved this error by properly objecting and whether the prosecutor?s misconduct prejudiced Stambaugh. To prove the conduct was prejudicial, the appellant must show that ?there is a substantial likelihood the misconduct affected the jury?s verdict.? Weber, 159 Wn.2d at 270 (citations omitted). Unless, with reasonable probability, the outcome of the trial would have been materially affected if the error had not occurred, reversal is not required. Id. If the defendant does not object to alleged misconduct at trial, he generally waives the issue of prosecutorial misconduct, unless the misconduct was ?so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.? State v. Stenson, 132 Wn.2d 668, 726-27, 940 P.2d 1239 (1997) (citations omitted), cert. denied, 523 U.S. 1008 (1998). When ?an objection does not call the 19

34900-1-II trial court?s attention to the real reason for the testimony?s inadmissibility, ?error may not be based upon the overruling of the objection.?? State v. Smith, 67 Wn. App. 838, 846, 841 P.2d 76 (1992) (quoting State v. Boast, 87 Wn.2d 447, 451, 553 P.2d 1322 (1976)). After the third time the prosecutor asked Stambaugh whether the Churches were lying, defense counsel objected that the question was argumentative. Stambaugh argues that his testimony that the Churches were lying, about irrelevant matters, substantially prejudiced his presentation of evidence. The State argues that (1) Stambaugh did not object with sufficient specificity and, therefore, he has waived this issue on appeal; and (2) even if Stambaugh did not waive this alleged error, the prosecutor?s conduct was not prejudicial and could not have affected

the jury?s verdict because, as Stambaugh notes, the questions were of marginal relevance. We agree with the State. In Padilla, the prosecutor asked a witness whether a police officer witness was lying. 69 Wn. App. at 300. Defense counsel objected, ?That is an improper line of questioning.? After the trial court overruled the objection, defense counsel asked for a sidebar conference, which the trial court denied, saying it had ?just read the case.? Id. Acknowledging that defense counsel?s initial objection ?was somewhat vague and may have been insufficient, by itself, to preserve the issue of misconduct for review,? Division One of our court held that his subsequent request for a sidebar, following his objection, preserved the issue, in light of the trial court?s implication that it understood the grounds for defense counsel?s objection because it had ?just read the case.? Id. In Casteneda-Perez, the prosecutor asked witnesses to comment on whether a police officer witness was lying. 61 Wn. App. at 357-59. Defense counsel first objected that the 20

34900-1-II question ?calls for a comment on the evidence.? Id. at 357. Later, defense counsel objected that ?[t]he question is calling for the witness to [comment] on the truthfulness of the other witnesses.? Id. at 358. Division One of our court held that objecting on grounds that the question requires the witness to comment on the evidence ?is too general to meet the requirement that objections must state specific grounds so that the trial court is informed on the issue and the adversary has an opportunity to correct it.? Id. at 363. Division One held that Casteneda-Perez?s second objection, however, was specific enough to inform the trial court of the issue. Id. at 364. Here, defense counsel objected that the State?s questions were ?argumentative.? This

objection, like one based on an improper line of questioning or asking the witness to comment on the evidence, is too general to meet the requirement that objections must state specific grounds in order to inform the trial court of the basis for the objection and so that the opposing party may

correct the error. Thus, Stambaugh has waived the issue of prosecutorial misconduct unless the misconduct was ?so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.? Stenson, 132 Wn.2d at 719. Such is not the case here. The central issue at trial was whether Stambaugh lawfully shot Smokey. Stambaugh?s defense was that he thought Smokey was a feral cat that had been threatening his cats. Stambaugh?s credibility was, therefore, at issue. Stambaugh testified that the Churches were lying when they described Smokey, and when they testified that Stambaugh had been introduced to Smokey on many occasions and had laughed at them after he shot Smokey. On appeal, Stambaugh concedes that the matters about which he testified the Churches were lying were 21

34900-1-II irrelevant; nonetheless, he asserts that his testimony about their lying prejudiced his presentation of a defense. We disagree. The prosecutor?s questioning attempted to challenge Stambaugh?s credibility, a central issue in the case. In light of the record before us, the prosecutor?s questions were not so flagrant and ill-intentioned as to evince an enduring prejudice. Furthermore, a curative instruction or an order to the prosecutor to rephrase the questions could have neutralized any prejudice; but Stambaugh did not request such instruction. We hold, that Stambaugh waived the issue of prosecutorial misconduct and, thus, he may not raise it for the first time on appeal. V. Exclusion of Defense Witnesses Stambaugh argues in his SAG that the trial court erred in precluding (1) Robert Keen from testifying about his observations and interactions with a black cat he believed was Smokey, and (2) his father from testifying about the characteristics of tom cats. This argument fails. A. Standard of Review

?The decision to admit evidence lies within the sound discretion of the trial court and should not be overturned absent a manifest abuse of discretion. State v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997). An abuse of discretion exists ?[w]hen a trial court?s exercise of its discretion is manifestly unreasonable or based upon untenable grounds or reasons.?? State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001) (quoting Stenson, 132 Wn.2d at 701). find no abuse of discretion here. B. Keen 22 We

34900-1-II Keen had not been present during the October 29 incident. He did not see any cats injured. And, although he lived above Stambaugh?s garage on occasion and saw cats fighting, he could not identify the aggressor cat with particularity. In Stambaugh?s offer of proof concerning Keen?s testimony, Stambaugh admitted that although Keen had seen a cat, Keen could not remember if it was Smokey. We hold that it was not unreasonable or an abuse of discretion for the trial court to exclude Keen as a witness because he could not provide direct testimony concerning Smokey or the cat-shooting incident on October 29. C. Ross Stambaugh Stambaugh next argues that the trial court improperly ruled that his father, Ross

Stambaugh, was neither an expert witness nor qualified as a lay witness to testify about the character of tom cats. We review a trial court?s application of Evidentiary Rule (ER) 701 for an abuse of discretion. See Ashley v. Hall, 138 Wn.2d 151, 155, 978 P.2d 1055 (1999). We find no such abuse here. ER 701 provides that if a witness is not an expert, the witness? testimony in the form of opinions or inferences is limited to those

opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness? testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of rule 702. Ross Stambaugh testified that he frequently saw Smokey coming over to Stambaugh?s residence and, ?in [his] estimation at least, he was acting out as a tomcat does. Two of them 23

34900-1-II can?t exist in the same space and he was claiming the space and --.? Report of Proceedings (RP) at 193. The State objected that Ross Stambaugh was not an expert in animal behavior. The trial court sustained the objection, instructed the jury to disregard Ross Stambaugh?s ?opinion as to how tomcats behave,? RP at 193-94, and did not allow Ross Stambaugh to testify that Smokey ?stalked? Stambaugh?s cats. Stambaugh laid no foundation for his father?s tom cat opinions. Accordingly, because Stambaugh failed to establish that his father had any scientific, technical, or other specialized knowledge in animal behavior, the trial court did not allow Ross Stambaugh to provide lay witness testimony on this subject. We hold, therefore, that the trial court did not abuse its discretion in excluding Ross Stambaugh?s lay opinion on animal behavior under ER 701. VI. Unfair Trial In his SAG, Stambaugh contends that the trial was unfair because the trial court allowed the State ample time to make its arguments and did not provide him with sufficient time to make his arguments. The record does not support this argument. In essence, Stambaugh complains that the trial judge violated the appearance of fairness doctrine. See State v. Post, 118 Wn.2d 596, 618, 826 P.2d 172 (1992) (the law requires not only an impartial judge but also a judge who appears to be impartial). Before we will apply the doctrine, the appellant must provide us with ?evidence of a judge?s or decisionmaker?s actual or potential basis.? Id. at 619 n.9. There is no such evidence here. On the contrary, the record shows that the trial asked the State to make abbreviated

arguments on numerous occasions. 24

For example, at 9:13 a.m. on the first day of trial, the trial

34900-1-II court asked the State to make abbreviated arguments on its motion in limine to exclude the three defense witnesses because the court desired to be out of chambers and in court by 9:30 a.m. In another instance, the trial court ruled against the State, preventing the Churches from testifying about Smokey?s suffering; the trial court stated: The court: I?m not going to take argument on it. The State: I just -The court: Mr. -- Mr. Anderson, I?m -- when I say I?m not taking argument, I mean I?m not taking argument. The State: Well, I thought you could say -- I?m just going to raise my objection. The Court: Fine. I -The State: I think it?s an incorrect ruling. That?s my objection. The court: And I?m asking you and [defense counsel] to wait to make your objections at a later date, maybe at the end of this but it may be at a later date. I want to get through this. RP at 44-45. On another occasion, when the parties were arguing about the wording of the jury instructions, the trial court twice told the State to give an ?abbreviated version? of its argument because the court was not inclined to agree with the State. And finally, in the afternoon of the first day of trial, the court stated: I?m letting counsel know that we may run past 5:00. We won?t go longer than 5:30 but this trial is going to be to the jury before 5:30 so counsel better figure out how they?re going to present their cases and I?ll just note objections to that decision right now. RP at 135. Defense counsel responded that he could not really object because he had no idea how much time would be left for the defense. The trial court stated it understood, it expected the parties to get right to the questions, it would sustain all asked-and-answered objections, and it would cut witness testimony short if necessary. 25

34900-1-II

The State then asked for a conference in chambers, and the trial court stated: There?s no -- no discussion anywhere because I?m just going to have the jury come back in, we?ll start the trial and please just proceed as you normally would. I?ll just make my calls as I see them. RP at 136. The State rested, and the defense called two witnesses before the end of the day. The trial court allowed the case to proceed to the next day and allowed Stambaugh to present all of his witnesses. The record does not show trial court bias. We hold, therefore, Stambaugh has failed to meet his burden to show that the trial court was biased against him. VII. Insufficient Evidence Stambaugh also appears to argue in his SAG that there was insufficient evidence to support his conviction for first degree animal cruelty. He argues that (1) he had no cruel intention in shooting Smokey; (2) rather he was defending his kittens when he took a clear shot at Smokey, which shot he intended to be instantaneously mortal;14 and (3) the Churches and Goodwin provided untruthful testimony. This argument also fails. A. Standard of Review ?Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.? State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004) (citation omitted). An appellant claiming insufficiency of the evidence admits the truth of the State?s evidence and all inferences that can be reasonably drawn from it. Id. We view both

14 Stambaugh claims that by shooting the ?cruel persisting predator I acted in mercy.? SAG at 3. 26

34900-1-II circumstantial and direct evidence as equally reliable. Id. We do not review credibility determinations on appeal. Instead, we defer to the trier of fact on issues of conflicting testimony, witness credibility and persuasiveness of the evidence. Id. at 874-75.

B. Sufficiency Viewing the evidence in the light most favorable to the State, we hold that there was sufficient evidence to show that before October 29, 2005, Stambaugh knew the Churches owned Smokey, that Smokey was not out at night, that Stambaugh shot Smokey when he was hiding under a tree, and that Goodwin suggested alternative methods to prevent cats entering Stambaugh?s garage (such as closing the garage door or setting live traps), but that Stambaugh chose not to utilize those options. Additionally, Melanie and Lori Church testified that Smokey got along well with other animals and was not aggressive. Furthermore, the Churches? and Goodwin?s credibilities were for the trier of fact to determine, especially in light of Stambaugh?s conflicting testimony. We defer to the trier of fact?s determination about what weight to give conflicting testimony. We hold that there is sufficient evidence on which a rational trier of fact could convict Stambaugh of animal cruelty, and we do not find sufficient evidence justifying an affirmative defense of necessity or self-defense. VIII. No Contact Order Stambaugh argues that the trial court improperly granted the Churches a no contact order because he had not threatened the Churches with any personal violence. Again, we disagree. 27

34900-1-II We reiterate that the appellant has the burden to provide an adequate record for us to review the issues he raises on appeal; the trial court?s decision must stand if this burden is not met.15 RAP 9.2. Here, the trial court ordered Stambaugh to have no contact with Melanie and Lori Church, including, but not limited to, personal, verbal, telephonic, written, or contact through a third party for five years. But Stambaugh did not provide us with a record of the sentencing hearing so that we can review the propriety of his challenges to this order. Thus, we are unable to consider this issue, RAP 9.2(b), and the trial court?s no contact order stands.

Affirmed. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered. Hunt, J. We concur: Bridgewater, J. Van Deren, A.C.J. 15 See State v. Slanaker, 58 Wn. App. 161, 165, 791 P.2d 575, (citing Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760 P.2d 368 (1988)), review denied, 115 Wn.2d 1031 (1990); State v. Cerrillo, 122 Wn. App. 341, 347-48, 93 P.3d 960 (2004) (holding that even when a party alleges a manifest error affecting a constitutional right, the appellate court will not review a newly raised argument if the facts necessary to adjudicate the alleged error are not in the record.). 28 </pre>