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In People v Ridge, 319 Mich App 393; 901 NW2d 406 (2017), this Court discussed this Court's previous decision in People v Janes, 302 Mich App 34; 836 NW2d 883 (2013), regarding the definition of "dangerous animal" within the meaning of the dangerous animal statute.
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Nos. 333790, 333791.
04-25-2017
PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Daniel RIDGE, Defendant–Appellant. People of the State of Michigan, Plaintiff–Appellee, v. Debra Olney, Defendant–Appellant.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Douglas R. Lloyd, Prosecuting Attorney, and Brent E. Morton, Senior Assistant Prosecuting Attorney, for the people. Cataldo & Meeks, PLLC (by Donald J. Cataldo II ), for defendants.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Douglas R. Lloyd, Prosecuting Attorney, and Brent E. Morton, Senior Assistant Prosecuting Attorney, for the people.
Cataldo & Meeks, PLLC (by Donald J. Cataldo II ), for defendants.
Before: Borrello, P.J., and Wilder and Swartzle, JJ.
Borrello, P.J.In these consolidated cases, defendants Daniel Ridge (Docket No. 333790) and Debra Olney (Docket No. 333791) appeal by delayed leave granted a June 27, 2016 circuit court order denying their motions to quash their bindovers on charges of owning a dangerous animal causing serious injury in violation of MCL 287.323(2). For the reasons set forth in this opinion, we reverse and remand to the circuit court for entry of an order quashing the bindovers.
People v. Ridge, unpublished order of the Court of Appeals, entered November 9, 2016 (Docket No. 333790); People v. Olney, unpublished order of the Court of Appeals, entered November 9, 2016 (Docket No. 333791).
I. FACTS
Defendants Daniel Ridge and Debra Olney are married. In September 2015, the couple lived in a residential neighborhood and owned two dogs. The dog at issue in this case was a "possible pit bull, Shar–Pei mix" named Roscoe.
Jill Flietstra, an employee of Scott's Lawn Care, testified that when she arrived at the property next door to defendants' home on September 10, 2015, she "saw two large dogs in [defendants'] backyard." Flietstra testified that the property she was working on and defendants' property were separated by a chain-link fence. Flietstra testified that the dogs "seemed like normal dogs" to her and denied that their behavior caused her concern—even when they were jumping on the fence.
Flietstra testified that she began spraying fertilizer and weed control, but took care to avoid spraying around the animals. Flietstra testified that when she was spraying near the fence line at issue, she was three or feet away from the fence. Her back was to the fence and she was "spraying forward." Janis Strang (Janis), one of defendants' next-door neighbors, testified that she observed Flietstra spraying the day she was injured. Janis testified that Flietstra was approximately five feet from the fence when spraying and that Flietstra was "probably" spraying about five or six feet away from her body.Flietstra testified that while she was spraying, Roscoe got "partially underneath the fence" and "grabbed [her] by the boot." Flietstra testified that Roscoe "pulled [her] leg partially underneath" the fence during the ensuing struggle. She said she "couldn't get away from its grasp, so [she] let it take [her] boot off ...." After she lost her boot, Roscoe "completely came underneath the fence[, s]quared off with [her] and started coming after [her]." Flietstra testified that when the dog "charged," she tried to "block it" using her hands, which were gloved; Roscoe then "kept biting" and "was grabbing, clenching, and then shaking its head" while biting her hands. Flietstra testified that Roscoe also "got a hold of [her] pants" and was "biting everywhere that it could."
Flietstra testified that "[e]ventually, the dog kind of tired out a little bit and [she] seized that opportunity to jump on top of it." Flietstra testified that when the police arrived she was holding Roscoe by the collar with one hand, while the "other hand [was] in its mouth so it would stop biting [her] abdomen and [her] legs and everything."Janis Strang testified that she heard a lot of barking from defendants' yard. Janis noted that defendants' dogs "bark all the time, but they acted like something was really agitating them" that day. Janis described the dogs as "barking at something on the other side of the fence. And I mean really barking; they were hitting the fence, and—and jumping." Janis testified that she heard Flietstra scream "get off me" and then continue screaming. Janis stated that she could not see Flietstra, but saw Roscoe "shaking ... like [he] was attacking." She called 911. Janis denied ever calling animal control or the police regarding Roscoe before the attack on Flietstra.Eaton County Sheriff's Department Deputy Joe Travis testified that he was notified by dispatch of "a [sic] animal bite in progress." Travis arrived at the Strang home, and Janis pointed to where a woman was being attacked. Travis ran to the next yard where he saw a dog pulling Flietstra. Travis approached and yelled something, and the dog released. Travis testified that he then shot and killed the dog as it appeared ready to charge at him.
Travis testified that Flietstra "stated that she could not move her arms" and "that she thought she had several broken bones," and he observed "several punctures and—and bleeding." Flietstra testified that she "had bite marks just everywhere, all over [her] body, contusions, bruising." She explained that "the dog bit through a [bone] in [her] left hand" and that she had "one more fracture in [her] left hand near [her] pinkie bone." She also said that she "had to get six large puncture wounds stitched up with eleven stitches."
Eaton County Sheriff's Department Detective Christopher Burton investigated the attack on Flietstra. Burton testified that he spoke with defendants. According to Burton, Ridge described the dog as a "family dog." Burton testified that Ridge and Olney had had Roscoe for about "six to eight months" before the incident. Ridge informed Burton that "the dog's never been aggressive before" and that he had "never heard him growl at anybody or bite anybody before." Burton testified that Olney echoed Ridge's statements, stating that "she was very surprised this would happen ... because [the dog] wasn't violent towards anyone in the past." Burton said also that "they have a lot of people that are in and out of the house[, a]nd the dogs have never shown any violence towards them in the house." However, Ridge acknowledged that Roscoe previously attacked the neighbor's lawnmower and, on one occasion, Roscoe punctured a tire on Dennis Strang's lawnmower.
Dennis Strang (Dennis) testified that Roscoe bit his tractor tires twice. The first time Roscoe bit the lawnmower tires the dog got his face under the fence and bit the tire, causing enough damage to necessitate repairs. According to Dennis, the second time he "pulled [Roscoe] the rest of the way through the fence" by reversing his tractor. Dennis testified that as he was taking Roscoe back to defendants' property, he "wouldn't look at the dog[, b]ecause an animal can sense fear, and [he] was afraid if [he] looked at that dog he might attack [him]." Dennis testified that he spoke with Ridge after the second incident and that Ridge told him "they were trying to find another home for the dog." Dennis denied informing Ridge that he was afraid of Roscoe.
Dennis testified that after the second attack on the lawnmower he began carrying his handgun with him while he mowed his lawn. Dennis also testified that he observed Ridge "put[ting] some more fencing up" and that he himself had "cut a piece of four-by-four and put it down by that fence so the dog couldn't get through again."Burton testified that defendants "tried securing the bottom of the fence and put some meshing on the bottom of the fence along both fence lines" and that "[t]hey put some slats that they got from another neighbor or from someone to try and block the view of the dog...."
Dr. Jennifer Link, an associate veterinarian at Miller Animal Clinic, testified that Roscoe, was a "neutered male" dog born May 24, 2014, and was treated at Miller Animal Clinic. Link testified that Olney requested "a letter of the temperament of the dog." That letter indicated that "[a]ccording to [the clinic's] records [the dog] never displayed any signs of aggression or required the use of a muzzle or sedation to be handled."
Janis testified that she did not have any previous "contact" with Roscoe because she did not "go in the backyard." Janis testified that she kept to her deck because "you can get back in the house really fast because the slider's right there." "[I]f I ever went down to, like, water my plants," she continued, "[Roscoe] was always there barking and being really aggressive." Janis also testified that "[n]one of [her] grandkids would go in the backyard" and noted that Roscoe "was scary" and would bark at "anything that moved." Dennis testified that their grandchildren "didn't play in the backyard 'cause the dogs just raised so much hell that there's no reason[.]" Dennis also testified that he saw Roscoe playing with defendants' children and had not witnessed the dog be aggressive with them. Dennis stated that defendants' dogs would run at the fence when he was in his backyard and would bark, jump, and bite the fence.
Victoria Steffy, an acquaintance of Olney, testified that Olney described Roscoe as a pit bull and said that "they were having some issues with his behavior and with their neighbors." Steffy testified that Olney told her she was having a problem with Roscoe "biting tires of lawn mowers" and with "the neighbors being afraid of him." Steffy told Olney that biting tires was "unacceptable behavior for any dog."
Following the conclusion of the police investigation into the dog attack, defendants were charged under MCL 287.323(2), which provides:
If an animal that meets the definition of a dangerous animal in [ MCL 287.321(a) ] attacks a person and causes serious injury other than death, the owner of the animal is
guilty of a felony, punishable by imprisonment for not more than 4 years, a fine of not less than $2,000.00, or community service work for not less than 500 hours, or any combination of these penalties.
MCL 287.321(a) defines "dangerous animal" in relevant part as:
a dog or other animal that bites or attacks a person, or a dog that bites or attacks and causes serious injury or death to another dog while the other dog is on the property or under the control of its owner.
After the preliminary examination, defense counsel moved to dismiss the complaint. The district court denied the motion, explaining: "It comes down to what was in the mind of Ms. Olney and—and Mr. Ridge. So the question is did they genuinely and reasonably believe that the animal was safe around other people and animals. I think that's the ultimate issue in the case." The district court went on to conclude that "there's some evidence here that they knew that there was a problem," and it determined that the prosecution "has met [its] burden of some credible evidence, though I think that [it] would have a hard time at trial." The district court went on to find:
The district court held a preliminary examination hearing on February 9, 2016. At the close of proofs, the district court found probable cause to bind defendants over for trial. Thereafter, defense counsel filed a memorandum of law arguing that the prosecution failed to establish its burden of proof. The district court then granted the prosecution's motion to reopen proofs and heard additional testimony on March 11, 2016. At the close of that hearing, defense counsel moved to dismiss the complaint. The district court denied the motion and bound defendants over for trial.
I mean, ... the dog had not bitten anybody. But ... certainly they had shown enough dangerous proclivity that ... Mr. Ridge and Ms. Olney were ... considering making a change. ...
The burden in a preliminary examination is quite low. It's just is there some evidence to support each element. I'm not at all convinced that a jury would look at this as being something that these people should be socked with a felony. ...
But there's some evidence here that they knew that there was a problem because this is a dog that they probably loved and they were willing to take steps to get rid of the dog, to send it to a shelter. So they had to have some kind of knowledge that there was some dangerous element.
Based on these findings, the district court bound the case over for trial. Defendants then moved in the circuit court to quash the bindover. The circuit court denied defendants' motion, reasoning:
I believe here the evidence supports the justification for [the district court's] ruling, that the defendants should be bound over. Based on a review of the record, the defendants were aware that the dog scared people and had an aggressive disposition. The dog had exhibited aggressive behavior, such as barking, running up and down the fence, making noise, biting ... lawnmowers, tires and damaging the tire prior to the incident in question.
The circuit court entered a written order on June 27, 2016. Defendants filed applications with this Court for delayed leave to appeal. This Court granted defendants' applications and consolidated the appeals.
II. STANDARD OF REVIEW
We commence our analysis of this matter by observing that the preliminary examination is a creation of our Legislature, and is therefore a statutory right. People v. Yost , 468 Mich. 122, 125, 659 N.W.2d 604 (2003). "[T]he preliminary examination has a dual function, i.e., to determine whether a felony was committed and whether there is probable cause to believe the defendant committed it." Id . at 125–126, 659 N.W.2d 604 ; see also MCR 6.110(E). Probable cause requires enough evidence to cause a person of ordinary caution and prudence "to conscientiously entertain a reasonable belief" of the defendant's guilt. Id . at 126, 659 N.W.2d 604 (quotation marks and citation omitted). If it appears to the district court that there is probable cause to believe that a felony was committed and that the defendant committed it, the court must bind the defendant over for trial. MCL 766.13 ; MCR 6.110(E). "A circuit court's ruling regarding a motion to quash an information and the district court's decision to bind over a defendant are reviewed to determine whether the district court abused its discretion in making its decision." People v. Waltonen , 272 Mich.App. 678, 683, 728 N.W.2d 881 (2006) (quotation marks and citation omitted). Significant to this case, we have previously stated that if the bindover decision "entails a question of statutory interpretation, i.e., whether the alleged conduct falls within the scope of a penal statute, the issue is a question of law that we review de novo." Id . at 683–684, 728 N.W.2d 881 (quotation marks and citation omitted). See also People v. Stone , 463 Mich. 558, 561, 621 N.W.2d 702 (2001) ; People v. Hotrum , 244 Mich.App. 189, 191,624 N.W.2d 469 (2000).
This authority undermines the prosecution's central argument, which rests on its belief that the question whether the dog was a "dangerous animal" under the statute was for the jury and not this Court to decide.
III. ANALYSIS
Defendants make two arguments. First, defendants argue that the prosecution failed to introduce evidence at the preliminary examination sufficient to support a finding that defendants owned a dangerous animal for purposes of MCL 287.323. Next, defendants argue that there was no evidence that they were aware that Roscoe was "a dangerous animal" as that term is defined in MCL 287.321(a).
As noted, defendants were charged under MCL 287.323(2), which provides that the owner of a dangerous animal under MCL 287.321(a) that attacks a person and causes serious injury other than death is guilty of a felony. In relevant part, MCL 287.321(a) defines "dangerous animal" as "a dog or other animal that bites or attacks a person, or a dog that bites or attacks and causes serious injury or death to another dog while the other dog is on the property or under the control of its owner." (Emphasis added.)
In People v. Janes , 302 Mich.App. 34, 836 N.W.2d 883 (2013), this Court stated that "the statute requires proof that the owner knew that his or her animal was a dangerous animal within the meaning of the dangerous animal statute before the incident at issue." Id . at 38, 836 N.W.2d 883. "[W]e find it unthinkable that the Legislature intended to subject law-abiding, well-intentioned citizens to a possible four-year prison term if, despite genuinely and reasonably believing their animal to be safe around other people and animals, the animal nevertheless harms someone." Id . at 49, 836 N.W.2d 883. Accordingly, "the Legislature's decision to limit an owner's liability to situations in which an animal ‘that meets' the definition of a dangerous animal ‘attacks' a person means that the prosecution must prove, in relevant part, that the animal has previously bitten or attacked a person." Id . at 51.
To sustain a conviction against defendants under MCL 287.323(2), the prosecution must prove the following elements:
(1) that [defendants] owned or harbored a dog or other animal, (2) that the dog or other animal met the definition
of a dangerous animal provided under MCL 287.321(a) before and throughout the incident at issue, (3) that [defendants] knew that the dog or other animal met the definition of a dangerous animal within the meaning of MCL 287.321(a) before the incident at issue, and (4) that the animal attacked a person and caused a serious injury other than death. [ Janes , 302 Mich.App. at 54, 836 N.W.2d 883.]
As the parties agree, the central issue in this case is whether plaintiff introduced evidence to support elements (2) and (3). To resolve that issue, we must determine whether there was evidence that, before the attack on Flietstra, defendants' dog, Roscoe, met the statutory definition of "dangerous animal" in MCL 287.321(a). That is, we must determine whether, before the incident at issue, Roscoe qualified as a dog that bit or attacked a person or another dog. Janes , 302 Mich.App. at 50, 836 N.W.2d 883. MCL 287.321(a) further states that the following do not qualify as dangerous animals:
(i ) An animal that bites or attacks a person who is knowingly trespassing on the property of the animal's owner.
(ii ) An animal that bites or attacks a person who provokes or torments the animal.
(iii ) An animal that is responding in a manner that an ordinary and reasonable person would conclude was designed to protect a person if that person is engaged in a lawful activity or is the subject of an assault.
(iv ) Livestock.
"Our purpose when interpreting a statute is to determine and give effect to the Legislature's intent. If the plain and ordinary meaning of a statute's language is clear, we enforce it as written. This Court will not interpret statutes in a way that renders any part of the statute surplusage." People v. Armstrong , 305 Mich.App. 230, 243, 851 N.W.2d 856 (2014). "We begin by examining the plain language of the statute; where that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed—no further judicial construction is required or permitted, and the statute must be enforced as written." People v. Barrera , 278 Mich.App. 730, 736, 752 N.W.2d 485 (2008) (quotation marks and citation omitted).
Review of the plain language of MCL 287.321(a) inexorably leads to the conclusion that an animal is a "dangerous animal" if it (1) bites or attacks a person or (2) bites or attacks another dog while the other dog is on the property or under the control of its owner, causing serious injury or death to the other dog.
In this case, it is undisputed that the victim was not a trespasser on defendants' property and that the victim did not provoke or torment Roscoe. MCL 287.321(a)(i) and (ii). Similarly it is undisputed that Roscoe was not protecting another person, and the case did not involve livestock. MCL 287.321(a)(iii) and (iv). Also, there was no evidence that Roscoe previously bit or attacked another dog. Accordingly, the last remaining inquiry for the Court is whether there was evidence presented that, before the attack, Roscoe previously bit or attacked a person .
The Legislature's use of the coordinating conjunction "or" between the verbs "bites" and "attacks" indicates that an animal can be a dangerous animal under either alternative. See Auto–Owners Ins. Co. v. Stenberg Bros., Inc. , 227 Mich.App. 45, 50, 575 N.W.2d 79 (1997) (explaining that "[t]he word ‘or’ generally refers to a choice or alternative between two or more things"). The words "and" and "or" "are not interchangeable and their strict meaning should be followed when their accurate reading does not render the sense dubious and there is no clear legislative intent to have the words or clauses read in the conjunctive." Id. at 50–51 (quotation marks and citation omitted). In this case, reading the term "or" does not render the statute dubious or ambiguous. Rather, in using the conjunction "or," the Legislature clearly indicated that an animal is considered dangerous when (1) the animal bites a person, without any further aggressive behavior being necessary, or (2) the animal attacks a person, whether or not the attack included biting.
The prosecution does not dispute that there exists no evidence that Roscoe previously bit a person; therefore, resolution of the case turns on whether there was evidence showing that Roscoe previously attacked a person and that defendants knew of the attack. See Janes , 302 Mich.App. at 54, 836 N.W.2d 883.The statutory scheme does not define the word "attack." "Where, as here, the Legislature has not expressly defined terms used within a statute, we may turn to dictionary definitions to aid our goal of construing those terms in accordance with their ordinary and generally accepted meanings." People v. Morey , 461 Mich. 325, 330, 603 N.W.2d 250 (1999). Merriam–Webster's Collegiate Dictionary (11th ed.) defines the verb "attack" as "to set upon or work against forcefully" and "to begin to affect or to act on injuriously...." The American Heritage Dictionary of the English Language (2011) defines "attack" to mean "[t]o set upon with violent force" and "[t]o act on in a detrimental way, cause harm to...."
Applying these definitions to the evidence in the record exposes an absence of proof from which a trier of fact could conclude that Roscoe previously attacked a person. There exists no evidence that Roscoe set upon or worked against a person with violent force, or that the dog acted on a person injuriously or harmfully. While the prosecution argues that Roscoe "attacked" other persons when he attacked the fence and lawnmower tires, this evidence only demonstrates that Roscoe attacked other objects , not that he attacked other people . To be considered a dangerous animal, Janes requires a showing that the animal previously attacked a person, not that the animal threatened a person or attacked an object. Thus, Roscoe's actions against the fence and the lawnmower are not synonymous with an attack against a person sufficient to render Roscoe a "dangerous animal" for purposes of MCL 287.321(a). Therefore, the district court erred when it bound defendants over for trial. Similarly, the circuit court erred by affirming the district court when the circuit court held that there was evidence to support the bindover because defendants were aware that Roscoe "scared people and had an aggressive disposition." Under MCL 287.321(a), an animal is not deemed a "dangerous animal" if it has previously frightened people or exhibited an "aggressive disposition." Rather, Janes concludes, there must be proof that the animal previously acted in a certain manner—i.e., that it bit or attacked a person. Janes , 302 Mich.App. at 54, 836 N.W.2d 883. MCL 287.321(a). To incorporate other forms of aggressive behavior into the statute would be to improperly expand the statute beyond the scope of its plain language. See Bay Co. Prosecutor v. Nugent , 276 Mich.App. 183, 189, 740 N.W.2d 678 (2007) (noting that "[w]e may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself") (quotation marks and citation omitted).
The circuit court correctly set forth the standard of review when acting as an appellate court but did not articulate the standard of review when considering a question of statutory interpretation. See Waltonen, 272 Mich.App. at 683–684, 728 N.W.2d 881.
We acknowledge, though not at issue in this case, that a dog may meet the statutory definition of a dangerous animal by other means specifically set forth in MCL 287.321(a).
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In sum, because the prosecution did not introduce any evidence to prove that Roscoe was a "dangerous animal" as that term is defined under MCL 287.321(a), the prosecution failed to introduce sufficient evidence of the second and third elements necessary to show probable cause that defendants violated MCL 287.323(2) —i.e., that defendants owned a dangerous animal at the time of the attack in this case, and that defendants knew that the animal was dangerous within the meaning of MCL 287.321(a). Janes , 302 Mich.App. at 54, 836 N.W.2d 883. The district court therefore abused its discretion by binding defendants over for trial in that it erred as a matter of law in applying MCL 287.321(a). See People v. Giovannini , 271 Mich.App. 409, 417; 722 N.W.2d 237 (2006) (noting that a trial court abuses its discretion when it errs as a matter of law).
Reversed and remanded to the circuit court for entry of an order quashing the bindovers. We do not retain jurisdiction.
Wilder and Swartzle, JJ., concurred with Borrello, P.J.