People v. Helm

2014 IL App (5th) 130325, 19 N.E.3d 27

• Court: Appellate Court of Illinois
• Decided: October 6, 2014
• Docket: 5-13-0325
• Status: Unpublished

Opinion

Rule 23 order filed 2014 IL App (5th) 130325 September 2, 2014; Motion to publish granted NO. 5-13-0325 October 6, 2014. IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 13-MR-141 ) WILLIAM P. HELM, ) Honorable ) Barbara L. Crowder, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE CATES delivered the judgment of the court, with opinion. Justices Goldenhersh and Spomer concurred in the judgment and opinion.

OPINION

¶1 The State filed a complaint under section 15 of the Illinois Animal Control Act

(Act) (510 ILCS 5/15 (West 2012)) and sought an order declaring Roscoe, a dog owned

by the defendant, William P. Helm, to be a vicious dog within the meaning of section

2.19b of the Act (510 ILCS 5/2.19b (West 2012)). After a bench trial, the circuit court

declared Roscoe to be a vicious dog and ordered that he be humanely euthanized. The

court also ordered the defendant to pay a $100 public safety fine. On appeal, the

defendant contends that the circuit court erred in declaring Roscoe to be a vicious dog

where the evidence established that his conduct was justified under section 15(a)(3) of

1 the Act (510 ILCS 5/15(a)(3) (West 2012)), because he was protecting a member of his

household. We affirm.

¶2 Roscoe, a five-year-old pit bull, is the subject of the case. Roscoe is owned by the

defendant, William P. Helm. Roscoe and a Husky called Chloe lived with the defendant

in a duplex on Mockingbird Street in Troy, Illinois. On May 3, 2013, Roscoe attacked

and bit Kenneth Whittaker, a neighbor of the defendant. On May 14, 2013, the State filed

a one-count complaint seeking to declare Roscoe a vicious dog. Subsequently, the State

amended its complaint to add a second count. In the amended complaint, the State

sought an order declaring Roscoe to be a vicious dog under section 15 of the Act, and

alleged that Roscoe was found to be a dangerous dog on three occasions (count I), and

that Roscoe, without justification, attacked and seriously injured Kenneth Whittaker

(count II). The case proceeded to a bench trial, and the defendant appeared without

counsel. A summary of the evidence follows.

¶3 Kenneth Whittaker, the State's first witness, testified that he lived near the

defendant on Mockingbird Street in Troy, Illinois. He shared a residence with his sister

and his nephew, and their two dogs, a Jack Russell terrier called Pork Chop and a boxer

mix called Lad. Whittaker testified that he arrived home after work at about 6 p.m. on

May 3, 2013, and let the dogs outside so that they could relieve themselves. As he stood

outside waiting for the dogs, he noticed a pit bull (Roscoe) and a Husky (Chloe) running

down the street, frolicking with each other. The dogs were not leashed or muzzled. They

were unaccompanied by any human being.

2 ¶4 Whittaker testified that the dogs caught the attention of Pork Chop, who was

standing in the driveway. Pork Chop barked as the dogs ran past the house. The Husky

took note of Pork Chop's barking. She reversed course and charged toward Pork Chop.

Pork Chop immediately fled and sped toward a tree in her yard. The Husky gave chase,

closed the gap, grabbed Pork Chop, and began to bite her. She then attempted to flip

Pork Chop over on her back. Whittaker ran over and yelled at the Husky to stop, but she

continued to attack Pork Chop. Whittaker kicked the Husky twice, but she was not

deterred. As Whittaker prepared to kick a third time, he felt something jump on his leg

and grab his arm. It was the pit bull. The pit bull grabbed Whittaker's arm in his jaws,

clamped down, and shook his head from side to side. Just then, the defendant ran up and

shouted at his dogs, Chloe and Roscoe. He told them to stop. Chloe released Pork Chop,

and Roscoe let go of Whittaker's arm. The defendant retrieved his dogs and took them

home. He would return to the Whittaker residence a short time later to check on

Whittaker and Pork Chop.

¶5 After the defendant left with his dogs, Whittaker went inside to see if Pork Chop

was hurt. At that point, he discovered that Roscoe had bitten through his sweatshirt, and

that Roscoe's teeth had penetrated and ripped his skin, creating a bloody gash on his arm.

Whittaker went to the emergency department. The attending physician cleaned the

wound, but decided to call a plastic surgeon due to the extent of the injury. The plastic

surgeon sutured the wound and released Whittaker. Whittaker had two follow-up visits

with the plastic surgeon. The wound healed, but Whittaker was left with a prominent

scar on his forearm. 3 ¶6 Whittaker's nephew and one of his neighbors testified as occurrence witnesses in

the State's case. Each corroborated Whittaker's account of the incident.

¶7 The State then called witnesses and presented evidence regarding prior incidents

in which Roscoe had bitten someone. According to the evidence, Roscoe bit a young

woman in March 2012. Because Roscoe did not have a current rabies vaccination at the

time of that incident, he was impounded for 10 days for observation. Shortly after

Roscoe was released from the 10-day hold, he bit one of the defendant's coworkers.

Because of these incidents, the administrator of the Madison County animal control

office opened an investigation in order to determine whether Roscoe should be declared a

dangerous dog, and he asked the defendant to submit information relevant to that issue.

Following the investigation, the administrator found Roscoe to be a dangerous dog. In a

letter dated May 10, 2012, the administrator notified the defendant of his finding and

instructed the defendant to keep Roscoe confined, or restrained with a leash and muzzle

at all times when he was out in public.

¶8 In October 2012, Roscoe bit an eight-year-old girl. The administrator investigated

this incident and found Roscoe to be a dangerous dog for a second time. In a letter dated

November 13, 2012, the administrator notified the defendant of his finding, advised the

defendant that this was the second time Roscoe had been found to be a dangerous dog,

and instructed the defendant to keep Roscoe confined, or restrained while he was out in

public.

¶9 Subsequently, Roscoe attacked and injured Kenneth Whittaker. Following an

investigation, the administrator declared Roscoe to be a dangerous dog for a third time. 4 On May 30, 2013, the administrator sent a letter notifying the defendant that Roscoe was

found to be a dangerous dog for a third time, and that he had requested the Madison

County State's Attorney to pursue a "vicious-dog" declaration. The defendant did not

appeal any of the dangerous-dog findings.

¶ 10 The defendant was called as an adverse witness and then testified in defense of

Roscoe. The defendant acknowledged that Roscoe had bitten three people on three

separate occasions prior to the incident on May 3, 2013. The defendant also

acknowledged that as a result of the incident on October 2012, he had been charged with

an ordinance violation for failing to restrain Roscoe, and that he pled guilty to the charge.

With respect to the incident on May 3, 2013, the defendant testified he did not know that

Roscoe and Chloe had gotten out of the house and that he had not permitted them to roam

free. He testified that he thought Roscoe had gone after Kenneth Whittaker because

Whittaker was kicking Chloe. The defendant noted that he returned to the Whittaker

residence, after he had secured his dogs, to check on Kenneth Whittaker. He stated that

he provided insurance information so that Whittaker could submit his medical bills for

payment.

¶ 11 At the close of the evidence, the trial court found that the State had proven by

clear and convincing evidence that Roscoe, without justification, attacked and seriously

injured Kenneth Whittaker, and that Roscoe had been found to be a dangerous dog on

three separate occasions. The court declared Roscoe to be a vicious dog and ordered that

he be humanely euthanized.

5 ¶ 12 On appeal, the defendant contends that the trial court erred in declaring Roscoe to

be a vicious dog where the evidence showed that his conduct was justified because he

was protecting a member of his household. The defendant maintains that under section

15(a)(3), a dog may not be declared a vicious dog and ordered destroyed if he was acting

to protect a member of his household.

¶ 13 A primary purpose of the Animal Control Act is to encourage tight control of

animals in order to protect the public from harm. Beggs v. Griffith, 393 Ill. App. 3d

1050, 1054, 913 N.E.2d 1230, 1235 (2009); Wilcoxen v. Paige, 174 Ill. App. 3d 541, 542-

43, 528 N.E.2d 1104, 1106 (1988). A complaint seeking a vicious-dog declaration is a

statutory action brought under section 15 the Act. 510 ILCS 5/1, 15 (West 2012). The

legislature has provided specific definitions for many of the terms used in the Act,

including the term "vicious dog." See 510 ILCS 5/2, 2.19b (West 2012). Section 2.19b

defines a vicious dog as "a dog that, without justification, attacks a person and causes

serious physical injury or death or any individual dog that has been found to be a

'dangerous dog' upon 3 separate occasions." 510 ILCS 5/2.19b (West 2012). Section

15(a) provides that: "[a] dog may not be declared vicious if the court determines the

conduct of the dog was justified because *** the dog was *** protecting itself, its owner,

custodian, or member of its household, kennel, or offspring." 510 ILCS 5/15(a)(3) (West

2012).

¶ 14 The defendant argues that under section 15(a)(3), the trial court was required to

find that Roscoe was not a vicious dog because the undisputed facts show that Roscoe

acted to protect Chloe, a member of his household. Under the defendant's interpretation 6 of this section, a dog's conduct would be justified each and every time the dog perceives a

threat and acts to protect himself, his owner, or a member of his household. We do not

believe that section 15 can or ought to be given the interpretation ascribed by the

defendant because the statutory language is clear, and because the defendant's

interpretation is not in keeping with a primary legislative purpose of the Act. See People

v. Tara, 367 Ill. App. 3d 479, 484, 867 N.E.2d 961, 967 (2006) (plain language of the

statute is the best indicator of the true intent and meaning of the legislature). Section 15

sets forth certain circumstances under which a dog's conduct may be justified, and clearly

states that the court will make the ultimate determination of whether such circumstances

are present and justify a dog's conduct in the case before it. 510 ILCS 5/15 (West 2012).

Under section 15, the court may find that a dog's conduct is justified where he was acting

to protect a member of his household, but the statute does not mandate that a court find

that a dog's conduct is justified in every instance where a dog perceives a threat and acts

to protect a member of its household.

¶ 15 In this case, the trial court considered and rejected the defendant's contention that

Roscoe's attack on Kenneth Whittaker was justified because he was protecting a member

of his household. The court noted that the evidence showed that prior to Roscoe's attack

on Kenneth Whittaker, the administrator of the Madison County animal control office

had twice found Roscoe to be a dangerous dog and twice directed the defendant to keep

Roscoe restrained at all times for the protection and safety of the public, and that the

defendant had twice failed to do so. The court also noted that the evidence clearly

showed that when Roscoe is in contact with people other than his owner, the people are 7 in danger. The court considered that a purpose of the Act was to protect the public from

vicious animals, and determined that even though Roscoe may have been reacting to

protect Chloe, Roscoe's attack could not be justified because he should not have been

roaming around outside unsupervised and without a muzzle or other restraint.

¶ 16 After reviewing the record, we conclude that the trial court properly construed and

applied the statutory provisions of the Act, and that the court's determination that Roscoe

is a vicious dog within the meaning of section 2.19b of the Act is supported by clear and

convincing evidence and is not against the manifest weight of the evidence.

¶ 17 Accordingly, the judgment of the circuit court is affirmed.

¶ 18 Affirmed.

8 2014 IL App (5th) 130325

NO. 5-13-0325

IN THE

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 13-MR-141 ) WILLIAM P. HELM, ) Honorable ) Barbara L. Crowder, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

Rule 23 Order Filed: September 2, 2014 Motion to Publish Granted: October 6, 2014 Opinion Filed: October 6, 2014 ______________________________________________________________________________

Justices: Honorable Judy L. Cates, J.

Honorable Richard P. Goldenhersh, J., and Honorable Stephen L. Spomer, J., Concur ______________________________________________________________________________

Attorney Curtis L. Blood for 1602 Vandalia Street Appellant Collinsville, IL 62234-4459 ______________________________________________________________________________

Attorneys Hon. Thomas D. Gibbons, State's Attorney, Madison County for Courthouse, 157 N. Main Street, Suite 402, Edwardsville, IL 62025; Appellee Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Kelly M. Stacey, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730 E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864 ______________________________________________________________________________