289971MAJ ~ DO NOT CITE. SEE RAP 10.4(h).

Court of Appeals Division II State of Washington Opinion Information Sheet Docket Number: 28997-1-II Title of Case: State of Washington, Respondent v. Melvin E. Monroe, Appellant File Date: 11/13/2003 SOURCE OF APPEAL ---------------Appeal from Superior Court of Jefferson County Docket No: 02-1-00015-6 Judgment or order under review Date filed: 06/21/2002 JUDGES -----Authored by J Dean Morgan Concurring: Christine Jan Quinn-Brintnall David H Armstrong COUNSEL OF RECORD ----------------Counsel for Appellant(s) Harry III Holloway Attorney at Law PO Box 596 Port Townsend, WA 98368-0596 Counsel for Respondent(s) Juelanne B. Dalzell Attorney at Law Prosecuting Attorney PO Box 1220 Port Townsend, WA 98368-0920 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, Respondent, v. MELVIN EUGENE MONROE, JR., UNPUBLISHED OPINION No. 28997-1-II

Appellant. MORGAN, J. - Melvin Monroe, Jr. appeals his convictions of first degree animal cruelty and third degree malicious mischief. We affirm. The State charged Monroe with first degree animal cruelty,1 unlawful possession of less than 40 grams of marijuana,2 and third degree malicious mischief.3 Following a bench trial, the court found Monroe guilty of animal cruelty and malicious mischief. It dismissed the marijuana charge and entered the following findings of fact:4 1. The Daniel Stenberg family owns a dog named Koko. Normally, the dog was tethered on the Stenberg land but frequently got loose and roamed at large. 2. On January 19, 2002 Ms. Burke, a neighbor, came to Mr. Stenberg's door and told him that Koko was loose. They were both on Stenberg's porch when Stenberg began calling for the dog. He heard a shot and saw the dog running from the defendant's property. . . . When the dog returned home, Stenberg noticed that Koko . . . had been shot. He called 911. 3. At approximately 1123, Deputies Post and Stringer arrived at the Stenberg residence to investigate the shooting. They examined the dog, spoke to Mr. Stenberg then went to the Monroe house and spoke to Mr. Monroe. 4. Monroe admitted shooting the dog with a Ruger 10/20 .22 caliber rifle. He told both deputies that the dog was trying to get into his chicken coop. Both deputies examined the chicken coop but could not find any evidence that the dog had been digging around the coop nor could they find any damage to the coop itself. 5. Monroe told the deputies that he had warned all of his neighbors to keep their dogs off his property or that the dogs would be shot. Monroe never talked to Stenberg about anything let alone a warning about the dogs. Monroe testified that he warned Ms. Stenberg about Koko{,} but the court does not find that testimony to be credible. At trial, Monroe testified that Koko was chasing the chickens from one end of the pen to the other. The court does not find that testimony creditable {sic}. It is contrary to what he told the deputies on the day in question. 6. The dog was taken to Chimacum Valley Veterinary Clinic where Dr. Rogstad treated her. He testified that the dog was in pain when brought to his office. Monroe paid for the vet fee of $217.00.{5} A. Appearance of Fairness. Monroe contends that the trial court violated the appearance of fairness doctrine by making the following oral remarks: We had five witnesses in this case. The Court finds two of them less than credible. Now, Mr. Stenberg, if things happened the way he said they happened, it's human nature probably - would be to tell the Officers - the Deputies that, 'I saw Mr. Monroe shoot my dog.' That's on one hand. On the other hand, if {Koko} had been chasing the chickens in the pen, I'm sure Mr. Monroe would have told the Deputies that the dog was chasing the chickens to one side of the pen to the other as opposed to telling the Deputies, 'This {} is where he tried to get into the pen.'

When Ms. Landes asked Mr. Stenberg whether or not Mr. Monroe told him that the dog had been chasing his livestock Mr. Stenberg made it clear that he had never talked to Mr. Monroe before the incident. Mr. Monroe had never warned him. At that time, I said to myself, 'I'll bet you dollars to doughnuts Mr. Monroe warned Mrs. Stenberg.' And, that's how the testimony come {sic} out. I'm going to - you know, that dog should {have} been on a tether, or leash, or something. I think that's a strict liability statute. Either the dog is penned up with a leash or the dog is not. I don't believe things happened the way Mr. Monroe testified today. I think that Mr. Monroe just shot the dog. It's clear that the dog was physically injured. Probably, he suffered - or she suffered, or whatever it was, substantial pain. I don't imagine bullet wounds are - are very pleasant. I'm going to find that the State has proven all the elements in Counts 1 and 3, and find Mr. Monroe guilty as charged in Counts 1 and 3.{6} After a defendant presents sufficient evidence of potential bias for the appearance of fairness doctrine to apply, this court considers whether the trial court violated the doctrine by deciding 'whether a reasonably prudent and disinterested observer would conclude {the defendant} obtained a fair, impartial, and neutral trial.'7 As one court recently observed: 'The appearance of bias or prejudice can be as damaging to public confidence in the administration of justice as would be the actual presence of bias or prejudice.' State v. Madry, 8 Wn. App. 61, 70, 504 P.2d 1156 (1972); Brister v. Tacoma City Council, 27 Wn. App. 474, 486, 619 P.2d 982 (1980). 'The critical concern in determining whether a proceeding appears to be fair is how it would appear to a reasonably prudent and disinterested person.' Brister, 27 Wn. App. at 486-87 (citing Chicago, Milwaukee, St. Paul & Pac. R.R. v. Human Rights Comm'n, 87 Wn.2d 802, 557 P.2d 307 (1976)). To prevail under the appearance of fairness doctrine, the claimant must provide some evidence of the judge's or decision-maker's actual or potential bias. State v. Post, 118 Wn.2d 596, 619 n. 9, 826 P.2d 172, 837 P.2d 599 (1992).{8} Monroe now argues that the italicized phrase shows that the trial court anticipated Monroe's defense and decided in advance not to credit it. We disagree. Based on defense counsel's opening statement, and also his cross-examination of early State's witnesses, the trial court knew before Stenberg testified what Monroe's defense would be. When the court had the thought that it later put into words, it was merely comparing Monroe's defense with what it knew so far; it neither said nor otherwise indicated that it was rejecting the defense in advance. The court remained free to make the usual determinations of credibility, and it did not then or later give an appearance of unfairness. B. Lawful Use of Force. Monroe contends that the State did not disprove that he shot the dog in defense of his property, and thus that the trial court should have granted his motion to dismiss.9 The State need not prove the absence of self-defense, or of defense of property, in every case. Rather, it must prove the absence of such a defense only if the defendant produces, or the record contains, evidence sufficient to support such a defense.10 The State did not raise the defense in its case in chief, and the trial court was not required to dismiss after its case in chief. C. Affirmative Defense. Monroe argues that the State failed to rebut his affirmative defense

that he shot the dog because he was protecting his chickens. It was the trial court's duty to examine the evidence, resolve conflicts, and decide if, in fact, Monroe had established his affirmative defense.11 The trial court disbelieved him and found that he had not established his defense. The State had no duty to rebut a defense not established. D. Monroe's Credibility. Monroe next argues that the trial court arbitrarily rejected his uncontroverted testimony. But he misconstrues the trial court's ruling, which we set out above. The trial court explained that Monroe was not credible because his testimony was contrary to what he had told the deputies at the scene. This was a rational, non-arbitrary view of the evidence, and one the trial court was permitted to take. The trial court acted within its discretion, and it did not err. E. Motion to Dismiss and Motion to Arrest Judgment. Monroe argues that the trial court erred in denying his motion to dismiss at the end of the evidentiary portion of the trial and his motion to arrest judgment filed after the jury had reached its verdict. These motions relied on the same claims we have already discussed, except that the trial court was then obligated to examine all the evidence (not just that presented in the State's case in chief) when assessing whether the State had disproved Monroe's claim that he had acted in defense of his property.12 If the trial court had been sitting with a jury, it would have had to instruct on Monroe's defense, because Monroe had by then testified to facts supporting it. As finder of fact, however, the trial court had discretion to reject Monroe's credibility, which it did. That left the case without 'credible evidence'13 raising the claimed defense, and the trial court could thereafter disregard it. The trial court did not err. 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. Morgan, J. We concur: Armstrong, J. Quinn-Brintnall, A.C.J. 1 A violation of RCW 16.52.205(1)(a) and (b). 2 A violation of RCW 69.50.401(e). 3 A violation of RCW 9A.48.090(1). 4 Monroe does not assign error to any of the factual findings and thus they are the established facts of this case. State v. Harris, 106 Wn.2d 784, 790, 725 P.2d 975 (1986), cert. denied, 480 U.S. 940 (1987); State v. Christian, 95 Wn.2d 655, 656, 628 P.2d 806 (1981). We review the court's conclusions of law de novo. State v. Mendez, 137 Wn. 2d 208, 214, 970 P.2d 722 (1999); State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996); State v. Ford, 125 Wn.2d 919, 923, 891 P.2d 712 (1995). 5 Clerk's Papers (CP) at 46-47. 6 Report of Proceedings (RP) at 125-26. (Emphasis added.) 7 State v. Dominguez, 81 Wn. App. 325, 330, 914 P.2d 141 (1996). 8 State v. Dugan, 96 Wn. App. 346, 354, 979 P.2d 885 (1999). 9 See State v. Acosta, 101 Wn.2d 612, 616, 683 P.2d 1069 (1984) (State must prove absence of self-defense beyond a reasonable doubt). 10 State v. Roberts, 88 Wn.2d 337, 346, 562 P.2d 1259 (1977) (requirement that State disprove self defense 'should not prove unduly burdensome to the

prosecution. Where no credible evidence appears in the record upon which a claim of self-defense might be based, the burden has been effectively discharged'); see also Acosta, 101 Wn.2d at 619-20. 11 See State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). 12 State v. Jackson, 82 Wn. App. 594, 607-09, 918 P.2d 945 (1996), review denied, 131 Wn.2d 1006 (1997). 13 See Roberts, 88 Wn.2d at 346. >>