State v. Alexander

975 N.W.2d 592

STATE of South Dakota, Plaintiff and Appellee,

v.Christopher Michael ALEXANDER, Defendant and Appellant.

#29537

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS OCTOBER 4, 2021

OPINION FILED JUNE 1, 2022

JASON R. RAVNSBORG, Attorney General, SARAH L. THORNE, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

MANUEL J. DE CASTRO, JR., Madison, South Dakota, Attorney for defendant appellant.

KERN, Justice

[¶1.] Christopher Alexander owns a Rottweiler and two pit bulls. His neighbor, Michael Baartman, had contact with the two pit bulls on March 4, 2020, which culminated in Alexander being convicted of violating SDCL 40-1-23 for having a "potentially dangerous animal." Although the circuit court convicted Alexander of the charge following a bench trial, the court expressed concern regarding the lack of due process in determining whether the animals were dangerous as defined in SDCL 40-1-1(5), a requirement for a conviction under SDCL 40-1-23. Alexander appeals the sufficiency of the evidence supporting his conviction. We reverse.

Factual and Procedural Background

[¶2.] Alexander and his girlfriend, Sierra Cundy, lived together with Alexander's mother in Chester, South Dakota, from December 2019 through March 4, 2020. Their next-door neighbor was Baartman. Alexander and Cundy had three dogs—one Rottweiler and two pit bulls.

[¶3.] On December 17, 2019, the first incident between Baartman and Alexander's dogs took place. Alexander was not at home, but Cundy was home and out in the yard. Baartman was walking from his garage to his vehicle when Alexander's Rottweiler ran toward Baartman. The Rottweiler stopped approximately two feet away from Baartman and, according to Baartman, was growling with its hair standing up on its back and with its teeth showing. Baartman kept slowly walking toward his vehicle and, when he came into the view of Cundy, who was standing in her and Alexander's yard, she called for the dog to come back to the yard and it obeyed her command.

[¶4.] Baartman told Cundy that she needed to keep the dog on a leash. Baartman testified at Alexander's bench trial that he was "very scared of [the] dog" because he "thought it was going to take [him] down." Baartman subsequently asked law enforcement what he could do about the dog. The officer who spoke to Baartman is not definitively identified in the record, but Baartman testified he or she told him that all Baartman could do was carry a gun and shoot the dog if it attacked him. Deputy Grant Lanning testified at Alexander's bench trial that he spoke to Alexander on December 17 and advised him to keep his dogs contained and under control.

[¶5.] On March 4, 2020, Baartman had a second encounter with Alexander's dogs. Alexander's two pit bulls ran up to Baartman while he was walking to his vehicle. Alexander again was not home, but Cundy was. First, Alexander's white pit bull ran up to Baartman, followed by Alexander's brown pit bull. Baartman was carrying a gun and pointed it at the dogs but did not shoot because Cundy and two of her children were outside in the yard. Cundy called for the dogs and they ran back to her. The encounter lasted a few seconds and was captured, but without audio, by the surveillance camera of a neighbor who lived across the street.

[¶6.] Later in the day when Alexander learned what had happened with Baartman and the dogs, he called law enforcement and notified them that "Mr. Baartman pulled a gun on my dogs." Alexander stated that the situation needed to be taken care of or he would take matters into his own hands, threatening that Baartman "would not need a hospital because he would be dead." Deputy Lanning then called Baartman to notify him of what Alexander had said.

[¶7.] Several Lake County Sheriff's Deputies arrived at Alexander's home the afternoon of March 4. They obtained surveillance camera footage of the incident from the neighbor across the street, issued Cundy, who was at home at the time, a ticket for keeping a "potentially dangerous animal," and impounded the dogs. Cundy subsequently pled guilty and paid the ticket.

[¶8.] Deputy Sarina Talich, who drove the dogs to Madison for impoundment, testified at the bench trial that the dogs growled and barked while she was transporting them in her car. After arriving at the pound, the dogs were removed from the car using a lasso tool and moved into kennels, during which process they barked and growled. Once the dogs were placed in kennels and the other dogs at the pound, who had become excited with the arrival of Alexander's dogs, settled down, Alexander's dogs calmed down as well.

[¶9.] Deputies met with Alexander at his home on the evening of March 4. After some discussion, they ticketed him for failure to restrain a dangerous animal, a Class 1 Misdemeanor, under SDCL 40-1-23. Alexander was subsequently charged by information with the single count of having a "potentially dangerous animal" on March 10, 2020. Alexander was arraigned on April 29, 2020, entered a plea of not guilty, and requested a trial.

[¶10.] The parties tried the case before the circuit court on December 15, 2020. After the evidentiary portion of the trial was complete, the court alerted the parties of its concern regarding the propriety of applying the definition of a dangerous animal in SDCL 40-1-1(5) to a criminal charge under SDCL 40-1-23, stating, "I don't know [whether] that's constitutional or not. It certainly strikes the [c]ourt as backwards." The circuit court reasoned, "It actually makes the law enforcement officer—it's the only statute I know that does this—that makes the law enforcement officer the finder of fact. Not the court, not a jury." The court further stated that "I just think that that's a terrible standard, to let people involved in the situation, not an independent fact-finder, make that determination." The circuit court began this discussion with the statement that "these may be two of the worst-written statutes I've ever read, but they are presumed to be constitutional. So that's where I'm starting."

[¶11.] After analyzing the evidence, the circuit court found Alexander guilty as charged. As to the third element of the charge, in which the definition of dangerous animal in SDCL 40-1-1(5) was used to determine if Alexander's dogs were dangerous, the circuit court stated that "[m]y finding that the animals are potentially dangerous is based strictly on the finding of the officer that the animal was potentially dangerous, which is what the statute says." Additionally, the court stated that "if that wasn't the standard, I would have acquitted. And being clear on the record, is that the video [from the neighbor's surveillance camera]—there's no way for me to tell in that video if the animals are dangerous." Alexander was sentenced that same day to five days in the Lake County Jail, suspended, and ordered to pay restitution of $1,755 for the impoundment of his dogs. He was also ordered to have no contact with Baartman. A judgment of conviction was signed and filed on January 11, 2021.

[¶12.] Alexander filed a notice of appeal on February 8, 2021, raising one issue which we restate as follows: whether the evidence presented at trial was sufficient to support his conviction for violation of SDCL 40-1-23 for keeping a "potentially dangerous animal."

Standard of Review

[¶13.] Whether there is sufficient evidence "to sustain a conviction is reviewed de novo." State v. McReynolds , 2020 S.D. 65, ¶ 11, 951 N.W.2d 809, 814. We consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (citation omitted). When reviewing a conviction rendered in a bench trial, "this Court defers to the [trial] court, as fact finder, to determine the credibility of witnesses and the weight to be given to their testimony." State v. Rodriguez , 2020 S.D. 68, ¶ 55, 952 N.W.2d 244, 260 (citation omitted).

Analysis and Decision

[¶14.] To prove the charge of keeping a "potentially dangerous animal" under SDCL 40-1-23, the State must prove, beyond a reasonable doubt, that (1) the defendant was the owner or caretaker of the animal, (2) the animal was not in a proper enclosure or confined or restrained, and (3) the animal was dangerous. SDCL 40-1-23 provides:

The owner or caretaker of a potentially dangerous animal shall keep such animal in a proper enclosure. If a potentially dangerous animal is not in a proper enclosure, it shall be directly accompanied by its owner or caretaker and confined or restrained in such a manner that, after investigation by the board, any peace officer, or any officer or agent of a humane society, it is not a dangerous animal. The ownership or possession of a dangerous animal in violation of this section is a Class 1 misdemeanor.

SDCL 40-1-1(5) defines a dangerous animal for purposes of element (3) as "any animal that, by itself or by environmental circumstances, at the determination of the board, any agent or officer of a humane society, or any law enforcement officer, is a threat to the physical well-being of other owned animals or humans[.]"

[¶15.] Neither party disputes that the dogs were not in an enclosure, confined, or restrained. Although Alexander contends that because he was not home during the March 4 incident, he cannot be criminally responsible, the statute requires only that he be the owner or caretaker of the animal. Here, the circuit court determined that Alexander owned the dogs based on his statement to law enforcement that the dogs were "my dogs." The evidence produced supports the court's determination that elements (1) and (2) of SDCL 40-1-23 were proven at trial.

[¶16.] As to element (3), SDCL 40-1-1(5) provides in pertinent part that an animal is dangerous if "any law enforcement officer" determines that the animal "is a threat to the physical well-being of other owned animals or humans[....