NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 28793
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
Defendant-Appellant Ronnie H. MacDonald (MacDonald) appeals from a judgment entered by the District Court of the First Circuit (1) (district court) on September 12, 2007, convicting and sentencing him for one offense of animal nuisance in violation of Revised Ordinances of Honolulu (ROH) § 7-2.3 (1990 & Supp. No. 6, 2-05) (2) and two offenses of negligent failure to control a dangerous dog in violation of ROH § 7-7.2 (1990 & Supp. No. 12, 2-08). We affirm in part and reverse in part.
BACKGROUND
The animal-nuisance charge and the first negligent-failure-to-control-a-dangerous-dog charge against MacDonald stemmed from an incident that occurred on June 29, 2006 at the Hawaiian Humane Society (Humane Society) dog park (dog park) in Honolulu, where dogs are allowed to run around without a leash. On that day, MacDonald and his off-leash pit bull, Beautiful Baby Girl (Baby Girl or dog), were in a pond with a fountain at the dog park when three twelve-year-old girls, Michelle, Samantha (Sam), and Konomi, entered the dog park, approached the pond, and began admiring Baby Girl and asking MacDonald questions about her. Shortly thereafter, Baby Girl bit both Michelle and Sam twice on their calves, causing bleeding and/or puncture marks.
Regarding the June 29, 2006 incident, Michelle testified that a few minutes after she and her friends had talked to MacDonald about his dog, the dog "just came out of the water and . . . shaked the water off the body and then it, like, sniffed us and all of a sudden it bit me . . . [o]n my right leg . . . [r]ight under the knee." Then, Michelle stated, the dog "bit Sam and then after that, it went crazy, so it ran all around the park[.]" According to Michelle, she and Sam then hid behind Konomi "and then the dog bit me again . . . [o]n my other leg, my left leg" and "then Sam got bit once again[.]"
Sam testified that when she and her friends went to the dog park on June 29, 2006, she saw MacDonald "taking a shower with his dog." She and her friends then went over to talk to MacDonald, "said hi and then we asked what was the dog's name, and then we were just, like, telling him how cute his dog was." According to Sam, the dog then "just came out and started, like, sniffing Michelle" and thereafter, bit Michelle. After that, Sam testified, the dog "went around the pole, like, once or twice" then "went over to, like, me and it jumped on me and bit me" on "my [right] calf." According to Sam, she and Michelle then "ran to this bench thing and we jumped on the bench, and [the dog], like, tried, before we jumped on the bench, [the dog] like, bit us one more time but it wasn't that bad, just like a scratch." Sam also testified that she and her friends eventually got away from the dog and went to the Humane Society "and we just asked them if we could have, like, band-aids, [and] we told them we got bit[.]" An employee of the Humane Society then helped the girls fill out statements about the incident leading to the dog bites. Sam explained that the dog was not on a leash until the Humane Society staff "told [MacDonald] that he needs to get out [of the dog park]."
MacDonald testified that when he and Baby Girl arrived at the dog park on June 29, 2006, no other person or animal was there. He tried to get Baby Girl to "swim in the waterfall and the pond," but because she was a little reluctant, he jumped in the pool to "try to have her come in." According to MacDonald, after he had been at the park for about a half hour to thirty-five minutes,
all of a sudden to my left side, two teenagers, two teenage girls come from nowhere and then Beautiful Baby Girl, she got startled, and I guess she got very surprised too and she barked and nipped one of the girls.
The following colloquy between MacDonald and his trial counsel then ensued:Q . . . Prior to that nip, you described as a nip, had Baby Girl ever bit another person?
Q Ever bit another animal?
Q Another dog?
Q And that's prior to this June 29th date?
Q Okay. Now, at this time, are you still in the pool?
Q What happened next?
Q Okay. And what did Baby Girl do?
Q Okay, okay. Did you attempt to get out of the water?
Q And when you did reach your dog, did you put a leash on Baby Girl?
On cross-examination, MacDonald agreed that none of the girls had provoked, yelled at, or were abusive toward him or Baby Girl. MacDonald also testified that he did not actually see Baby Girl bite any of the girls but presumed that Baby Girl had nipped one of them because the girls screamed. MacDonald also related that he jumped out of the pond as soon as he could and ran after the dog to restrain her, but the girls and the dog were about fifteen feet away before he was able to chase them. When he reached the dog, MacDonald said, he immediately restrained and put a leash on the dog.
The second charge of negligent failure to control a dangerous dog arose from an incident that occurred near the Jack in the Box restaurant (restaurant) at the corner of King and McCully Streets on July 19, 2006. Ryan Cambra (Cambra) testified that on that day, he was walking to the restaurant when he passed MacDonald, who was pushing a wagon and accompanied by a dog on a leash about four feet long. Cambra stated that after he had passed MacDonald, the dog, unprovoked, turned around and bit Cambra "on [Cambra's] butt[,]" causing bleeding and leaving a one-inch scar.
At the conclusion of a bench trial, the district court orally ruled:
Alright, with respect to the cases on our calendar, 1:30 p.m. calendar, Cases TRP6, 7, and 8, State of Hawaii [(State)] versus Ronnie MacDonald, the Court finds [Michelle, Sam, and Cambra] to have been credible. The Court also finds Officer Kerber, Vernon Ling, Yvette Dante provided credible corroborating testimony, and the Court finds that based on the credible evidence adduced that the State has carried its burden of proof in each of these matters and that burden of proof is proof beyond a reasonable doubt and, therefore, the defendant is found guilty on all matters.
The district court sentenced MacDonald to pay a fine of $50 for the animal-nuisance offense. For the two negligent-failure-to-control-a-dangerous-dog offenses, the district court sentenced MacDonald to serve concurrent six-month terms of probation and perform one hundred hours of community service for each offense. The district court also ordered Baby Girl to be humanely destroyed but stayed the sentence pending appeal. (3)ISSUES ON APPEAL
On appeal, MacDonald contends that:
(1) There was insufficient evidence to support his conviction for negligent failure to control a dangerous dog as to Sam because: (a) the ordinance establishing the offense was not intended to address a situation where a dog bites for the first time; (b) insufficient evidence was adduced to prove that he failed to take reasonable measures to prevent Baby Girl from biting Sam on June 29, 2006; and (c) insufficient evidence was adduced to prove that he negligently failed to take reasonable measures to prevent the attack on Sam; and
(2) There was insufficient evidence to prove that he negligently failed to take reasonable measures to prevent Baby Girl from biting Cambra on July 19, 2006.
Upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the case law and statutes relevant to the arguments advanced and issues raised by the parties, we resolve MacDonald's arguments on appeal as follows.
DISCUSSION
A. ROH § 7-7.2 Does Not Require Evidence of a Dog's Previous Bite.
The offense of negligent failure to control a dangerous dog is set forth in ROH § 7-7.2, which states, in pertinent part:Prohibited acts---Conditions on owner--Penalties.
(b) For the purposes of
this section, "reasonable measures to prevent the dog from attacking"
shall include but not be limited to: (1)
measures
required to be taken under Article 4 of this chapter to prevent the dog
from becoming a stray; and (2) any conditions
imposed by the court
for the
training of the dog or owner or for the supervision, confinement or
restraint of the dog for a previous
conviction under this
section.
ROH § 7-7.1 also provides that the term "'[n]egligently' shall have the same meaning as is ascribed to the term in HRS Section 702-206." HRS § 702-206 (1993), in turn, states, in relevant part:
(4) "Negligently."
(b) A person acts
negligently with respect to attendant circumstances when he [or she]
should be aware of a substantial and
unjustifiable risk
that
such circumstances exist.
(d) A risk is substantial
and unjustifiable within the meaning of this subsection if the person's
failure to perceive it, considering the
nature and
purpose of his [or her] conduct and the circumstances known to him [or
her], involves a gross deviation from the
standard of care that
a law-abiding
person would observe in the same situation.
the attack by a dog upon a person or animal was precipitated under the following circumstances:
(2) The person attacked was committing a crime or offense while on the property of the owner of the dog;
(4) The dog was attacked or menaced by the animal or the animal was on the property of the owner of the dog;
(6) The dog was protecting itself, its kennels or its offspring from the attacked person or animal;
(8) The dog was responding to a command or encouragement to attack the person or animal.
ROH § 7-7.1. "'Bodily injury' means the same as that term is defined in HRS Section 707-700." Id. HRS § 707-700 (1993) states that "'[b]odily injury' means physical pain, illness, or any impairment of physical condition."ROH, chapter 7, article 4, entitled "Regulation of Dogs[,]" includes definitions in ROH § 7-4.1 (1990 & Supp. No. 12, 2-08), among them the following:
"Stray" or "stray dog" means any dog: (1) on the premises of a person other than the owner of the dog, without the consent of an occupant of such premises; or (2) on a public street, on public or private school grounds, or in any other public place, except when under the control of the owner by leash, cord, chain or other similar means of physical restraint; provided, that such leash, cord, chain or other means is not more than eight feet in length; and provided further, that this provision shall not be construed to permit that which is prohibited by any other law.
Under the rules of statutory construction, the plain language of a statute controls unless there is "ambiguity," which has been defined as "doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute[.]" City & County of Honolulu v. Ing, 100 Hawai‘i 182, 189, 58 P.3d 1229, 1236 (2002).On its face, ROH § 7-7.2 does not state that the ordinance applies only to owners of dogs that have previously bitten a person. By its plain and unambiguous language, the ordinance applies whenever a dog owner "negligently fails to take reasonable measures to prevent the dog from attacking, without provocation, a person . . . and such attack results in . . . bodily injury to a person other than the owner." The only instance where a "prior" attack by a dog would be relevant is at sentencing, since ROH § 7-7.2(a) provides that "[a] person convicted under this subsection shall be guilty of a petty misdemeanor for a first offense and a misdemeanor for a subsequent offense" and ROH § 7-7.2(c) provides for higher penalties if a negligent-failure-to-control-a-dangerous-dog offense is committed within five years of a previous conviction of the same offense.
B.
Insufficient Evidence Was
Adduced to Support MacDonald's Conviction for the Offense of Negligent
Failure to
Control
a Dangerous Dog as to Sam.
The testimony at trial established that Sam was bitten by MacDonald's dog at a park where dogs are allowed to run around without a leash. MacDonald testified that Baby Girl had never bitten any person or animal before that date, and no evidence to the contrary was adduced. While the exact timing and sequence of events that occurred on June 29, 2006 are not entirely clear, the testimony at trial established that Baby Girl's biting or nipping of Michelle and Sam took place suddenly, unexpectedly, and in close succession. Under these circumstances, the State failed to establish that MacDonald negligently failed to take reasonable measures to prevent Baby Girl from biting Sam on the day in question.
C.
There Was
Substantial Evidence to Support MacDonald's Conviction for the Offense
of Negligent Failure to
Control a
Dangerous Dog as to Cambra.
Cambra, whom the district court expressly found to be credible, testified that on July 19, 2006, he walked past MacDonald, who was pushing a wagon and accompanied by a thirty-five- to forty-pound, beige-and-white pit bull that was on a leash about four feet long. According to Cambra, after he passed MacDonald, "the dog turned around and bit [him]" in the butt, resulting in bleeding and a one-inch scar. Cambra stated that he did not make any type of motion to the dog or to MacDonald and did not provoke the dog in any way before being bitten.
There is also substantial evidence in the record from which it can be inferred that although MacDonald was aware of the dog-biting incidents at the dog park, he did not take any reasonable measures, such as muzzling Baby Girl while in public or keeping Baby Girl in his wagon, to prevent the risk that Baby Girl might again bite someone unexpectedly.
The district court did not err in determining that MacDonald negligently failed to take reasonable measures to prevent the dog from attacking Cambra, without provocation, resulting in bodily injury to Cambra.
CONCLUSION
In light of the foregoing discussion, we affirm that part of the judgment of the district court that convicted and sentenced MacDonald for animal nuisance and negligent failure to control a dangerous dog as to Cambra. We reverse that part of the judgment that convicted and sentenced MacDonald for negligent failure to control a dangerous dog as to Sam.
DATED: Honolulu, Hawai‘i, January 30, 2009.
1. The Honorable Paula Devens presided.
2. ROH § 7-2.3 provides as follows:
It is unlawful to be the owner of an animal . . . engaged in animal nuisance as defined in Section 7-2.2; provided, however, that it shall not be deemed to be animal nuisance for purposes of this article if, at the time the animal . . . is making any noise, biting or stinging, a person is trespassing or threatening trespass upon private property in or upon which the animal . . . is situated, or for any other legitimate cause which teased or provoked said animal[.]
ROH § 7-2.2 (1990 & Supp. No. 6, 2-05) provides:"Animal
nuisance," for the purposes of this section, shall include but not be
limited to any animal . . . which: . . . ;
HRS § 142-75 (Supp. 2007) provides now, as it did during all times relevant to the proceedings before the district court, in relevant part, as follows:
. . . .
3. The opening brief indicates
that although MacDonald's sentence was stayed, "Baby Girl was put down
after sentencing."