314053MAJ ~ DO NOT CITE. SEE RAP 10.4(h).

Court of Appeals Division II State of Washington Opinion Information Sheet Docket Number: 31405-3-II Title of Case: State of Washington, Respondent v. Janice Lyn Long, Appellant File Date: 02/23/2005 SOURCE OF APPEAL ---------------Appeal from Superior Court of Pacific County Docket No: 03-1-00078-5 Judgment or order under review Date filed: 02/02/2004 Judge signing: Hon. F Mark Mccauley JUDGES -----Authored by David H. Armstrong Concurring: J Dean Morgan J. Robin Hunt COUNSEL OF RECORD ----------------Counsel for Appellant(s) Daniel Herbert Bigelow Attorney at Law PO Box 153 Cathlamet, WA 98612-0153 Counsel for Respondent(s) Nathaniel Lauren Needham Pacific County Prosecutor's Office PO Box 45 South Bend, WA 98586-0045 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, Respondent, v. JANICE L. LONG. UNPUBLISHED OPINION No. 31405-3-II

Appellant. ARMSTRONG, J. - Janice Long appeals her twelve misdemeanor convictions for second degree animal cruelty, arguing that the trial court erred in allowing the State's veterinarian to testify that the allegedly abused horses suffered pain. Long also argues her counsel was ineffective in presenting evidence on her behalf and that she was deprived of her right to pretrial discovery. We affirm. FACTS Janice Long buys unhealthy horses and fattens them for resale to the public. In January 2003, she began boarding horses on some land she rented from Kirk Jordan. Jordan saw that the horses were thin when they first arrived on his land. He also noted that the horses quickly ate most of the grass, grew increasingly listless, and spent most of their time taking shelter from the constant rain beneath some trees. Jordan believed his land had insufficient grass to sustain the horses. In March 2003, local horse enthusiast Michelle Phillips noticed that some of the horses were severely underweight and had a skin condition called 'rain rot' from being wet all the time. 1 Report of Proceedings (RP) (Dec. 3, 2003) at 52. One horse was lame. On March 28, 2003, Deputy Pat Lynn1 of the Pacific County Sheriff's Office also observed the horses' condition. Lynn told Janice Long's husband, David Long, to take the lame horse to the vet; he explained to David that he would monitor the horses for the following week. Over the next nine days, Lynn returned to the property several times and observed that the horses did not have enough to eat and had decreased in number from 23 to 17. He videotaped the property and the horses. After obtaining a search warrant, Lynn visited the property with veterinarian Ken Olson, who examined the remaining five horses. The State charged David and Janice Long with two felony counts of animal cruelty and sixteen misdemeanor counts of second degree animal cruelty, contrary to RCW 16.52.207(2)(a).2 Several witnesses testified as to the general condition of the herd, including Dr. Olson, who described many of the horses as dangerously thin.3 The trial court overruled defense counsel's objection to Dr. Olson's testimony that, in his opinion, the horses had suffered. When asked about the relationship between suffering and pain, Dr. Olson remarked that, '{p}ain is an issue in the medical field that we kind of avoid because it's difficult to measure and assess.' 2 RP (Dec. 4, 2003) at 11. Dr. Olson further explained, '{i}f you look at the reaction of an animal's body to some sort of stimulus, something hot, something sharp, it responds the same way we do.' 2 RP (Dec. 4, 2003) at 11. The trial court overruled Long's objection to this testimony and when asked whether animals would find such stimuli painful, Dr. Olson answered, '{w}e assume.' 2 RP (Dec. 4, 2003) at 11. The jury returned guilty verdicts on twelve misdemeanor counts of second degree animal cruelty and acquitted the Longs on the four remaining misdemeanor charges and the remaining felony charge.4 Janice Long appeals.5 ANALYSIS I. Inadmissible Expert Opinion Long argues that the trial court erred in allowing Dr. Olson to testify that he assumed the animals experienced pain. Long reasons that this testimony was speculative and beyond Dr. Olson's expertise because he testified that his profession avoids the issue of pain. Under ER 702, '{i}f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.' An expert's opinion is admissible if he is properly qualified, relies on generally accepted theories, and the expert's testimony is helpful to the trier of fact. State v. Allery, 101 Wn.2d 591, 596, 682 P.2d 312 (1984) (citing State v. Canaday, 90 Wn.2d 808, 585 P.2d 1185 (1978)). We review a trial court's decision to allow expert testimony for an abuse of discretion. Philippides v. Bernard, 151 Wn.2d 376, 393, 88 P.3d 939 (2004) (citing Myers v. Harter, 76 Wn.2d 772, 781, 459 P.2d 25 (1969)). A trial court abuses its discretion when it admits expert testimony based on manifestly unreasonable or untenable grounds. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995) (citing Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 77, 684 P.2d 692 (1984)). Dr. Olson has practiced veterinarian medicine for nearly 20 years. He has also owned horses since he was 14 years old. This experience easily qualified him to opine that the underfed and ill horses suffered as a result of their conditions; and his explanation that horses react to painful stimuli in the same ways humans do supports his assumption that horses experience pain with suffering. Moreover, we have recently held that a jury can reasonably infer that hungry horses suffer unnecessary pain within the statutory meaning. RCW 16.52.207(2)(a); State v. Zawistowski, 119 Wn. App. 730, 737, 82 P.3d 698, review denied, 152 Wn.2d 1010 (2004). The trial court did not abuse its discretion by admitting the testimony. II. Ineffective Assistance of Counsel Janice Long faults her attorney for (1) failing to interview some of the Longs' potential witnesses; (2) failing to challenge evidence she claims was illegally obtained without a search warrant; and (3) failing to argue that under chapter 16.52 RCW, (a) Long did not have the required intent; (b) she was exempt from prosecution for animal cruelty because she was practicing animal husbandry; (c) Deputy Lynn was not authorized to enforce chapter 16.52 RCW; and (d) she is not subject to civil or criminal liability for attempting to restore health to animals. We assume counsel's representation was effective. State v. Acevedo, 137 Wn.2d 179, 199, 970 P.2d 299 (1999) (citing State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995)); see also Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct 2052, 80 L. Ed. 2d 674 (1984). Long must prove that counsel had no strategic or tactical rationale for his trial conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). 'Counsel is ineffective if his representation falls below an objective standard of reasonableness.' State v. Harris, 122 Wn. App. 547, 552, 90 P.3d 1133 (2004) (citing State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997)). To establish that counsel was ineffective, the defendant must show 1) counsel's performance was deficient, and 2) the deficient performance prejudiced him. Strickland, 466 U.S. at 687. Prejudice results if it is reasonably probable that but for the deficient performance, there is a reasonable probability that the jury would have reached a decision more favorable to the defendant. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). 'If either part of the test is not satisfied, the inquiry need go no further.' State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). 1. Deficient Performance Long argues that her counsel failed to interview some of her proposed witnesses. We do not know from the record whether counsel interviewed the witnesses. And because our review is limited to the matters demonstrated

in the record, we are unable to review Long's claim that counsel failed to interview the witnesses. Whether to call a witness is ordinarily a matter of legitimate trial tactics and will not support an ineffectiveness claim. State v. Maurice, 79 Wn. App. 544, 552, 903 P.2d 514 (1995). Here, Long's counsel arguably had a legitimate tactical rationale for calling some witnesses and not others. Long does not argue how these other potential witnesses would have helped. Long contends that '{t}he only pictoral {sic} evidence supplied by the prosecution was obtained prior to obtaining a search warrant,' and counsel made no motion to suppress this evidence. Statement of Additional Grounds (SAG) at 6. But an officer does not search by detecting something from a legitimate non-intrusive vantage point. State v. Myers, 117 Wn.2d 332, 34445, 815 P.2d 761 (1991) (citing State v. Seagull, 95 Wn.2d 898, 901, 632 P.2d 44 (1984)). The horses were in an open space where Long had no reasonable expectation of privacy. Long claims that counsel failed to use relevant sections of chapter 16.52 RCW in her defense. She argues that she did not act with the statutorily required intent because she intended 'to bring these animals to a marketable condition.' SAG at 2. Long is simply reiterating her theory of the case. The jury found, at a minimum, that Long negligently failed to care for the horses, creating a substantial and unjustifiable risk of suffering and pain; this was sufficient mens rea to support her convictions.6 Long also points to RCW 16.52.185: 'Nothing in this chapter applies to accepted husbandry practices used in the commercial raising or slaughtering of livestock or poultry, or products thereof.' But Long does not contend that underfeeding is an acceptable husbandry practice. Instead, she argues that the animals 'were provided clean water, medical attention, and 'shelter.'' SAG at 2. She notes that the animals 'had big stands of mature trees' for shelter. SAG at 2. Long does not need chapter 16.52 RCW to make the point. She is simply arguing that the animals were not abused. The jury decided otherwise and chapter 16.52 RCW would not have helped Long persuade the jurors that she took good care of the horses. Next, RCW 16.52.015(1) authorizes Lynn to enforce the statute. The statute reads: '{l}aw enforcement agencies and animal care and control agencies may enforce the provisions of this chapter. Animal care and control agencies may enforce the provisions of this chapter in a county or city only if the county or city legislative authority has entered into a contract with the agency to enforce the provisions of this chapter.' Law enforcement agencies need no special contract with the city or county. Furthermore, additional training and authorization under RCW 16.52.025 applies only to trustees appointed by humane societies acting as animal control officers, not law enforcement officers. Finally, RCW 16.52.085(7) states: 'Any authorized person treating or attempting to restore an animal to health under this chapter shall not be civilly or criminally liable for such action.' The record fails to show that Long was authorized to restore animals to health. Long has not shown that her counsel was ineffective or, if he was, she was prejudiced. III. Right to Full Discovery Long claims that the State did not give her all the pertinent evidence before trial. She points to 17 photos she 'had never seen before walking into the court.' SAG at 3. But she does not claim that her attorney had not seen the photos. Nor does she explain how she was prejudiced by her claimed failure to see the photos. We reject Long's argument that the State did not provide full discovery.

IV. Police and Prosecutorial Misconduct As a final matter, Long argues that the police and prosecutor engaged in misconduct based on information not found in the record. To raise issues on appeal that require evidence or facts not in the trial record, Long must do so through a personal restraint petition. But for issues on direct appeal, we are limited to reviewing matters contained in the record. 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. Armstrong, J. We concur: Morgan, A.C.J. Hunt, J. 1 Deputy Lynn has run a horse breeding business for over 20 years. 2 RCW 16.52.207(2)(a) provides: An owner of an animal is guilty of animal cruelty in the second degree if, under circumstances not amounting to first degree animal cruelty, the owner knowingly, recklessly, or with criminal negligence: (a) Fails to provide the animal with necessary food, water, shelter, rest, sanitation, ventilation, space, or medical attention and the animal suffers unnecessary or unjustifiable physical pain as a result of the failure. 3 In addition to his examination of the remaining horses on the property, Dr. Olson analyzed photos taken from the videos Deputy Lynn ordered, using a generally accepted scale to score the horses' body fat content. Defense counsel did not object. 4 The State failed to prove one felony count, as a matter of law, and the trial court dismissed this charge. 5 David Long did not appeal his conviction. 6 Under RCW 16.52.207(2), criminal negligence is sufficient mens rea. >>