Opinion
111,779.
03-06-2015
STATE of Kansas, Appellee, v. Carole R. SHELL, Appellant.
John R. Kurth, of Kurth Law Office Incorporated, P.A., of Atchison, for appellant. Mary E. Kuckelman, assistant county attorney, Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
John R. Kurth, of Kurth Law Office Incorporated, P.A., of Atchison, for appellant.
Mary E. Kuckelman, assistant county attorney, Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., BUSER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Carole R. Shell appeals her misdemeanor conviction for permitting a dangerous animal to be at large in violation of K.S.A.2013 Supp. 21–6418(a). Shell contends the Atchison County District Court misinterpreted the statute and the evidence was insufficient to convict her of the offense. Finding no error, we affirm the conviction.
Factual and Procedural Background
Shell lives next to an Atchison County farm that belongs to Rita Leonardi. Shell kept 5 or 6 mixed breed dogs at her house, and she would release them to run about whenever she returned from work. At trial, Shell admitted the dogs would chase a variety of animals, and that she had seen them on Leonardi's farm.
Leonardi raises sheep, and she had about 70 head, including many lambs, at the time of this incident. At trial, Leonardi testified to a history of predation upon her sheep by Shell's dogs. Leonardi said she had complained to Shell “numerous” times about the dogs, but that Shell responded with verbal abuse and finally refused to speak to her at all.
Stephen Lorenz, an in-law of Leonardi, helps her tend the sheep. Lorenz testified he had seen Shell's dogs attack the sheep, and that when he chased them off, the dogs returned to Shell's house. Lorenz said he had repaired holes in the fence near Shell's house, and that he shot one of the dogs on Leonardi's farm after the citation at issue here. Shell testified that one of her dogs had “disappeared.”
Leonardi and Lorenz identified Shell's dogs in a photographic exhibit and testified they were the dogs that had attacked the sheep. Lorenz said he knew of no other dogs in the area. Leonardi testified she had not seen coyotes in the area, and both she and Lorenz opined that coyotes tend to carry off their prey and would not simply maul animals as the dogs had done.
Beginning in January 2014, about six sheep were killed. Leonardi contacted the Atchison County Sheriff's Office. Undersheriff Joseph R. Butner testified that he investigated and personally spoke with Shell twice in January. Undersheriff Butner said he warned Shell the dogs “could be considered ... dangerous and vicious,” and that she needed to restrain them.
On February 13, 2014, Leonardi let the sheep out of the barn by 8 a.m. Shell got off work at about 9 a.m., and she let her dogs out about 9:15 a.m. The dogs went to Leonardi's farm, and Leonardi called the sheriff's office. Undersheriff Butner was dispatched to Leonardi's farm at 1:35 p.m., where he observed two injured sheep by the barn. Both sheep had been mauled from behind, and while a veterinarian was able to treat one, the other animal had to be euthanized. Based on his investigation, Undersheriff Butner issued a citation to Shell, who later built a pen for her dogs.
On April 24, 2014, the trial court heard the evidence and found beyond a reasonable doubt that Shell had permitted a dangerous animal to be at large on February 13, 2014. The trial court imposed a suspended 6–month jail sentence, ordered Shell to complete 1 year of unsupervised probation, and ordered her to pay $192.85 in restitution. Shell appeals.
Statutory Interpretation
Shell contends the trial court did not strictly construe K.S.A.2013 Supp. 21–6418(a). In response, the State argues the canons of construction do not apply here because the permitting a dangerous animal to be at large statute is not ambiguous. We exercise unlimited review over statutory interpretation. See State v. Reese, 300 Kan. 650, 333 P.3d 149, 151 (2014).
It is true that courts apply a “rule of lenity” when a criminal statute is ambiguous. See Reese, 333 P.3d at 151. “[I]f a statute is plain and unambiguous,” however, courts do not “turn to canons of construction.” 333 P.3d at 151. Instead, courts apply the “most fundamental rule” of statutory interpretation, that “the intent of the legislature governs if that intent can be ascertained” from the language of the statute itself. 333 P.3d at 151.
Shell asserts the “trial court ... found the statute to be vague and somewhat ambiguous in its wording.” The record shows the trial court read the statute aloud when ruling: “Permitting a dangerous animal to be at large is the act or omission of the owner or custodian of an animal of dangerous or vicious propensities who, knowing of such propensities, permits such animal to go at large or keeps such animal without taking ordinary care to restrain it.” K.S.A.2013 Supp. 21–6418(a). The trial court then discussed the meaning of “an animal of dangerous or vicious propensities.” The trial court concluded “a reasonable interpretation” would be that the legislature had intended “to protect not only humans, but also livestock.” Based on the trial court's remarks, we are persuaded it did not find the statutory language ambiguous. As a result, the trial court had no reason to apply the rule of lenity.
We further note that while Shell argues the trial court “placed [its] own interpretation and definitions of the statute [sic] in finding [her] guilty,” she does not offer another interpretation or definition. Shell also cites State v. Hanson, 277 Kan. 855, 89 P .3d 544 (2004). But in that case, our Supreme Court found evidence that dogs had attacked another dog to be “sufficient for a rational factfinder to conclude that the dogs had dangerous or vicious propensities.” 277 Kan. at 857.
We conclude the trial court properly applied the plain language of the statute to the facts of this case. As a result, there was no need to resort to the canons of statutory construction. The district court did not error in its understanding and application of K.S.A.2013 Supp. 21–6418(a).
Sufficiency of the Evidence
Shell also contends the “evidence presented was insufficient to place the required knowledge [sic] upon [her] to prove her dogs had previously or presently had dangerous or vicious propensities.” The State counters that it “presented evidence that would support an inference that [Shell] knew that her dogs had dangerous or vicious propensities.”
“When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.” State v. Williams, 299 Kan. 509, Syl. ¶ 1, 324 P.3d 1078 (2014).
In Hanson, our Supreme Court set out the elements for the present crime, now recodified at K.S.A.2013 Supp. 21–6418(a) :
“(1) the defendant was the owner or custodian of an animal of dangerous or vicious propensities; (2) the defendant knew of such propensities; (3) the defendant permitted the animal to go at large or kept such animal without taking ordinary care to restrain it; and (4) the act occurred on or about a specific day in a specific Kansas county.” 277 Kan. at 856.
The trial evidence was sufficient to prove all of the elements of this crime beyond a reasonable doubt, including that Shell knew of her dogs' dangerous or vicious propensities. Despite Shell's repeated denials that her dogs were harming the sheep, there was evidence that Leonardi and Undersheriff Butner had warned her about the dogs' dangerous propensities prior to February 13, 2014. There was also evidence of facts corroborating these warnings, such as the presence of Shell's dogs on Leonardi's farm, their tendency to chase animals, the holes in the fence, and the unlikelihood the harm was caused by coyotes. In Hanson, by contrast, on a prior occasion the defendant was merely told his dogs had chased a horse. That warning was not sufficient to show knowledge of “dangerous or vicious propensities prior to the attack,” 277 Kan. at 857. Hanson's facts, however, are clearly distinguishable from the facts of this case.
We hold the direct and circumstantial evidence presented at trial, viewed in the light most favorable to the prosecution, was sufficient to prove the elements of the crime, and in particular, that prior to this incident, Shell knew of her dogs' dangerous or vicious propensities.
Affirmed.