People of Michigan v. Javaan Michael James

932 N.W.2d 248

• Court: Michigan Court of Appeals
• Decided: January 3, 2019
• Docket: 339504
• Status: Unpublished

Opinion

Per Curiam.

A jury convicted defendant of two counts of animal fighting, MCL 750.49(2)(a), and one count of possessing animal-fighting equipment, MCL 750.49(2)(h). 1 The trial court sentenced defendant *251 as a third-offense habitual offender, MCL 769.11, to concurrent terms of 24 months to 8 years' imprisonment. We affirm defendant's convictions but remand for correction of the judgment of sentence.

This case arises from defendant's ownership of five dogs: Chico, Chopper, Daisy, China, and Mayweather. On July 13, 2016, at roughly 3:00 p.m., Sergeant Kurt Roth of the Battle Creek Police Department arrived at a residence in the city to assist with the execution of a search warrant. Not long after Sergeant Roth arrived, he noticed that there were dogs in the backyard, and after seeing that two of them were injured, he contacted Officer Mike Ehart, the Animal Control Officer of the Battle Creek Police Department, to investigate the situation.

In the backyard, Chico was in a kennel, while the other dogs were separated and tethered by roughly 15-pound chains attached to tight, heavy collars. When Officer Ehart walked in the yard, none of the dogs was aggressive with him, and he could touch each one. China and Daisy had severe injuries, and because China could not walk on her right front leg, Officer Ehart carried her in order to transport the dogs to the Calhoun County Animal Shelter. Before leaving the residence, Officer Ehart advised defendant that he was taking the dogs to the animal shelter and that there would be a fee. In turn, defendant, as the dogs' owner, surrendered the animals to animal control. Defendant also informed Officer Ehart that Daisy and China had been in a fight and were injured the previous night.

While Officer Ehart was at the animal shelter, Corporal Andrew Olsen remained at the residence to take pictures and collect items of evidence related to the dogs. Among the items that Corporal Olsen collected were the four chains used to tether Chopper, Daisy, China, and Mayweather in the yard; a treadmill; a "flirt" pole; 2 and ribbons, awards, and trophies related to the dogs.

Tory Haywood, a veterinary technician at the Calhoun County Animal Shelter, recalled that China, Daisy, and Chopper were extremely aggressive with the other dogs at the shelter, although-as with Ehart-the dogs showed no aggression toward Haywood. Dr. Dale Borders, a veterinarian who served as an expert in veterinary medicine at defendant's trial, examined the dogs at the shelter not long after their arrival. Again, the dogs were not aggressive toward Dr. Borders. Dr. Borders first examined China and Daisy. China's right front leg was "badly bitten," and Daisy had puncture wounds and bite wounds around her face. According to Dr. Borders, "whoever [Daisy] was fighting with concentrated on her front end, right on her head." Dr. Borders noted that Daisy, China, Mayweather, and Chopper all had older injuries on the fronts of their bodies-their faces, front legs, chests, or shoulders. 3

Janette Reever, of the Humane Society of the United States, testified as an expert in animal welfare and dog fighting. Reever *252 testified that dog owners preparing their dogs for a fight often use a flirt pole and treadmill. Both items are used to condition the dogs and build up their physical stamina. The flirt pole is also used to develop the dogs' eye coordination. Reever-who had been to two dog shows-explained how these shows related to dog fighting. Reever stated that owners of fighting dogs created the shows for the purpose of legitimizing their possession of items indicative of dog fighting, such as treadmills and flirt poles. According to Reever, a dog can be both a fighting dog and a show dog.

Defendant testified on his own behalf at trial. Defendant explained that the reason he owned his dogs was to enter them in dog shows. According to defendant, he owned the treadmill for the purpose of training the dogs for upcoming shows. However, he used the flirt pole for simple positive interaction with his dogs. Defendant denied having ever seen any old wounds on his dogs, having ever participated in a dog fight, having attended a dog fight, or having provided any dog or equipment that he knew was going to be used in dog fighting.

Defense witness Dennis Michael Norrod, a semiretired judge and sponsor of pit bull terrier shows, testified that a dog-fighting training program would involve equipment such as weight scales, food supplements, and cortisone steroids in addition to other equipment. Norrod confirmed that he had seen defendant present dogs at six or more shows.

Defendant argues that there was insufficient evidence to convict him of two counts of animal fighting. We disagree.

On appeal, a claim of insufficient evidence is reviewed de novo. People v. Meissner , 294 Mich.App. 438 , 452, 812 N.W.2d 37 (2011). This Court must review "the evidence in the light most favorable to the prosecution" and determine "whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt." People v. Hardiman , 466 Mich. 417 , 421, 646 N.W.2d 158 (2002). "It is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences." Id . at 428, 646 N.W.2d 158 . "This Court will not interfere with the jury's role of determining the weight of the evidence or deciding the credibility of the witnesses." People v. Fletcher , 260 Mich.App. 531 , 561, 679 N.W.2d 127 (2004).

The animal-fighting statute, MCL 750.49(2)(a), provides, in pertinent part, that a person shall not knowingly "[o]wn, possess, use, buy, sell, offer to buy or sell, import, or export an animal for fighting or baiting...." 4 In reaching its verdict, the jury found sufficient evidence, with respect to two of defendant's dogs, to establish beyond a reasonable doubt that defendant: (1) owned, possessed, used, bought, sold, offered to buy or sell, imported, or exported (2) an animal (3) for fighting or baiting, and (4) did so knowingly.

As an initial matter, there is no dispute that defendant owned the dogs; nor is there a dispute that the dogs were "animals" within the meaning of the statute. 5 Accordingly, there was sufficient evidence to establish the first two elements of the offense.

*253 There was also sufficient evidence to establish the third element of the offense-that defendant owned and used at least two of the dogs for fighting or baiting. Although the prosecution's evidence was largely circumstantial, "circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime." People v. Lee , 243 Mich.App. 163 , 167-168, 622 N.W.2d 71 (2000).

First, the injuries and location of the injuries to the dogs were consistent with fighting dogs. According to Reever, because fighting dogs fight face-to-face, most of their injuries are concentrated around the face and front legs. When the officers discovered defendant's dogs in his backyard on July 13, 2016, Daisy and China had severe fresh wounds. Daisy's injuries were to her face and neck area-her face was swollen and was surrounded by puncture wounds. As would have been the case if Daisy had been in a dog fight, Dr. Borders testified that "whoever she was fighting with concentrated on her front end, right on her head." Also like a fighting dog, both of China's front legs were injured, and she was unable to bear any weight on her right leg. Dr. Borders described China's right leg as "badly bitten." Furthermore, China and Daisy exhibited signs of old wounds, primarily on their faces and front legs. Reever testified: "[B]oth dogs had injuries that were consistent with dog fighting. Extensive both scarring and injuries to the face, the front legs, and also elsewhere on the body." Chico and Chopper also had scarring primarily on the front of their bodies.

Additionally, three of defendant's dogs-China, Daisy, and Chopper-exhibited the temperament of a fighting dog. Dr. Borders, Haywood, and Officer Ehart all testified that the dogs were not aggressive with them and that they were able to touch the dogs. However, the three dogs were extremely aggressive with other dogs, to the extent that after spending a few months at the Calhoun County Animal Shelter, China, Daisy, and Chopper had to be euthanized. Mayweather and Chico, in contrast, were fearful when other dogs showed aggression toward them. Thus, of the five dogs, only China, Daisy, and Chopper had the trait of "gameness"-i.e., the desire to fight-that defines a fighting dog.

In addition to this evidence, the way that defendant secured the dogs in his yard and the equipment at defendant's residence also assisted in establishing that defendant owned and used the dogs for fighting or baiting. Reever explained that fighting dogs are kept separate from each other, secured by heavy chains attached to heavy, tight collars. Reever further explained that the purpose of keeping dogs in this manner is to avoid a "yard accident"-when a dog breaks free and attacks another dog. Defendant secured the dogs in his yard the same way. Defendant also had a flirt pole and treadmill at his residence. Although these items can be used for training dogs for dog shows, they are also commonly used to prepare a dog for a dog fight. For these reasons, and viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence to establish element three of the offense: defendant owned and used Chico, Chopper, Daisy, and China-Daisy and China in particular-for fighting or baiting. 6

Lastly, given the facts and evidence presented, there was sufficient evidence to *254 establish that defendant knowingly owned and used Daisy, China, Chopper, and Chico for fighting or baiting.

"Even in a case relying on circumstantial evidence, the prosecution need not negate every reasonable theory consistent with the defendant's innocence, but need merely introduce evidence sufficient to convince a reasonable jury in the face of whatever contradictory evidence the defendant may provide." Hardiman , 466 Mich. at 423-424 , 646 N.W.2d 158 (2002) (quotation marks and citation omitted). In this case, there was sufficient evidence for the jury to find defendant guilty of two counts of animal fighting under MCL 750.49(2)(a). See Lee , 243 Mich.App. at 167-168 , 622 N.W.2d 71 .

Next, defendant argues that insufficient evidence existed for a reasonable jury to convict him of possessing animal-fighting equipment under MCL 750.49(2)(h). We disagree.

MCL 750.49(2)(h) provides, in pertinent part, that a person shall not knowingly "[o]wn, possess, use, buy, sell, offer to buy or sell, transport, or deliver any device or equipment intended for use in the fighting [or] baiting ... of an animal...." Accordingly, in finding defendant guilty of possessing animal-fighting equipment, the jury found sufficient evidence to establish the following elements beyond a reasonable doubt: (1) defendant knowingly (2) owned, possessed, used, bought, sold, offered to buy or sell, transported, or delivered (3) any device or equipment (4) intended (5) for use in the fighting or baiting (6) of an animal.

As an initial consideration, there was no dispute that defendant's dogs were animals as defined under the statute. There was also no dispute that defendant owned and used the treadmill and the flirt pole, which the parties agreed were the only pieces of equipment present in this case. Thus, there was sufficient evidence to establish elements two, three, and six of the offense described in MCL 750.49(2)(h).

Turning to the fourth and fifth elements of the offense, there was also sufficient evidence to establish that defendant owned equipment intended for use in the fighting of dogs. "Intended" is not defined within the statute. However, Merriam-Webster's Collegiate Dictionary (11th ed.) defines "intended" as "expected to be such in the future[.]" Applying this definition, the treadmill and flirt pole were intended for more than one use. Defendant and Reever agreed that the treadmill and flirt pole develop physical stamina and eye coordination. Thus, they are used in dog training in general and more specifically, in training dogs for dog fighting as well as dog shows.

Defendant asserts that the flirt pole and treadmill can be explained by his preparation for dog shows. However, in light of the circumstances discussed in relation to the animal-fighting convictions and viewing the evidence in the light most favorable to the prosecution, the jury could reasonably infer that defendant owned this equipment to prepare his dogs for dog fights. See Lee , 243 Mich.App. at 167-168 , 622 N.W.2d 71 (providing that "circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime"). Additionally, "the prosecution need not disprove all theories consistent with defendant's innocence; it need only introduce sufficient evidence to convince a reasonable jury of its theory of guilt despite the contradictory theory or evidence a defendant may offer." People v. Solmonson , 261 Mich.App. 657 , 662-663, 683 N.W.2d 761 (2004). For these reasons, there was sufficient evidence to establish elements four and five of the offense: defendant *255 owned and used equipment intended for use in the fighting of dogs.

Lastly, from the evidence already discussed, a rational juror could find beyond a reasonable doubt that defendant knowingly owned and used the treadmill and flirt pole intended for use in the fighting of his dogs. Consequently, there was sufficient evidence for the jury to find beyond a reasonable doubt that defendant committed the offense of possessing animal-fighting equipment.

Defendant also argues that the trial court erred by denying his motion to quash because the police initially entered his residence on July 13, 2016, without a warrant and the July 12, 2016 and July 13, 2016 warrants were not supported by probable cause. We disagree.

"A trial court's findings on a motion to suppress evidence as illegally seized will not be reversed on appeal unless clearly erroneous, while questions of law and the decision on the motion are reviewed de novo." People v. Waclawski , 286 Mich.App. 634 , 693, 780 N.W.2d 321 (2009) (citations omitted). A finding is clearly erroneous if this Court is left with a definite and firm conviction that the trial court made a mistake. Id .

A search warrant cannot be issued unless it is supported by probable cause, which exists when "there is a 'substantial basis' for inferring a 'fair probability' that contraband or evidence of a crime will be found in a particular place." People v. Kazmierczak , 461 Mich. 411 , 417-418; 605 N.W.2d 667 (2000). When reviewing a magistrate's decision that probable cause existed, this Court considers "whether a reasonably cautious person could have concluded that there was a 'substantial basis' for the finding of probable cause." People v. Russo , 439 Mich. 584 , 603, 487 N.W.2d 698 (1992). "[A] magistrate's decision regarding probable cause should be paid great deference." People v. Martin , 271 Mich.App. 280 , 297, 721 N.W.2d 815 (2006).

Probable cause may be based, in part, on information supplied by a confidential informant, provided that the affidavit included "affirmative allegations from which the judge or district magistrate may conclude that the person spoke with personal knowledge of the information and either that the unnamed person is credible or that the information is reliable." MCL 780.653(b). "If the search warrant is supported by an affidavit, the affidavit must contain facts within the knowledge of the affiant and not mere conclusions or beliefs." Martin , 271 Mich.App. at 298 , 721 N.W.2d 815 . "Personal knowledge can be inferred from the stated facts." Id . at 302, 721 N.W.2d 815 . "[T]he fact that the police previously had utilized information provided by [a particular] informant in other warrant requests with successful results provide[s] ... support for the magistrate to conclude that the informant [i]s credible and reliable." People v. Stumpf , 196 Mich.App. 218 , 223; 492 N.W.2d 795 (1992).

As an initial matter, we note that defendant's first argument is factually inaccurate and, as such, is without merit. Defendant alleges that the police entered his home without a warrant on July 13, 2016, and that the prosecution therefore had to demonstrate an exigent circumstance to validate the entry. However, according to the affidavits and search warrants for July 12, 2016, and July 13, 2016, as well as the trial court's ruling on the motion to suppress, the officers entered defendant's residence pursuant to a warrant that had a mere typographical error. Thus, the officers entered defendant's residence pursuant to a warrant. Nonetheless, upon catching the error, the officers waited until a corrected warrant was obtained before seizing any evidence. Defendant's *256 argument therefore fails because it is based on an inaccurate factual premise. See People v. Traylor , 245 Mich.App. 460 , 464, 628 N.W.2d 120 (2001) (explaining that it is the responsibility of the defendant, not the Court, to search for facts underlying the defendant's argument).

Defendant also asserts that the trial court erred by denying his motion to suppress, arguing that the search warrants were not based on probable cause because the affidavits provided insufficient information as well as unreliable information from the confidential informant. We disagree.

The confidential informant in this case, X, spoke with personal knowledge of the information that he provided to the affiant, Officer Kelson Gettel. X performed a controlled hand-to-hand buy at a prearranged location, defendant's house. Officer Gettel observed the buy and searched X before and after the transaction. X provided Officer Gettel with defendant's name, informed Officer Gettel that defendant owned the house, and provided Officer Gettel with a bag of what X suspected was heroin, a fact that Officer Gettel later confirmed. These facts demonstrate X's reliability and personal knowledge as required by MCL 780.653(b). Furthermore, that Officer Gettel observed the transaction and verified the substance as heroin established that the affidavit contained facts within the knowledge of the affiant. See Martin , 271 Mich.App. at 298 , 721 N.W.2d 815 (explaining that "[i]f the search warrant is supported by an affidavit, the affidavit must contain facts within the knowledge of the affiant and not mere conclusions or beliefs"). Additionally, Officer Gettel's statement in the affidavit-" 'X' has proven credible in the past by purchasing heroin for the Battle Creek Police Special Investigation Unit which has resulted in the seizure of controlled substances"-further undermines defendant's argument that probable cause did not exist because the affidavit relied on information provided by an informant. See Stumpf , 196 Mich.App. at 223 , 492 N.W.2d 795 (stating that "the fact that the police previously had utilized information provided by [a particular] informant in other warrant requests with successful results provided ... support for the magistrate to conclude that the informant was credible and reliable").

Given the foregoing and because this Court has stated in another case that "[t]he controlled purchases of cocaine were sufficient to establish probable cause to permit the magistrate to issue the warrant," it stands to reason that there was probable cause for the warrants in this case. See People v. Head , 211 Mich.App. 205 , 209, 535 N.W.2d 563 (1995) ; see also Martin , 271 Mich.App. at 297 , 721 N.W.2d 815 (providing that "a magistrate's decision regarding probable cause should be paid great deference"). Accordingly, the trial court did not err by denying defendant's motion to suppress the evidence.

Defendant's convictions are affirmed. However, we remand for the ministerial task of correcting the judgment of sentence. We do not retain jurisdiction.

Swartzle, P.J., and Sawyer and Ronayne Krause, JJ., concurred.

1 The original charging document and judgment of sentence cite MCL 750.49(2)(c) for the offense of possessing animal fighting equipment. However, MCL 750.49(2)(c) is not the charge discussed throughout the trial. Rather, the applicable statute is MCL 750.49(2)(h). Therefore, we remand for the correction of MCL 750.49(2)(c) to MCL 750.49(2)(h) in the judgment of sentence. See People v. Katt , 248 Mich.App. 282 , 312, 639 N.W.2d 815 (2001) (explaining that if a judgment of sentence contains an error, it is appropriate to remand the matter for the ministerial task of correcting the error).

2 A flirt pole is a pole or stick holding at its end an item desirable to a dog, such as a piece of rawhide.

3 Dr. Borders did not examine Chico.

4 "Baiting" is not defined in the statute. However, according to Reever's testimony, "bait dogs" are used to teach younger dogs and to provide insight into whether the younger dogs have the fighting style and drive to fight desired by the dog owner. Bait dogs are typically fighting dogs that have done well in the pit but are too old to keep fighting there.

5 Under MCL 750.49(1), an "animal" is a vertebrate other than a human.

6 Daisy and China had fresh injuries and were two of the three dogs that showed aggression toward other dogs.