holding that a dog “can be considered a deadly weapon not only if it was deadly by its nature, but also if it was used by defendant in a deadly manner”
How later courts described this case
- holding that a dog “can be considered a deadly weapon not only if it was deadly by its nature, but also if it was used by defendant in a deadly manner”
Written by the judges who cited it.
The opinion
ELMORE, Judge,
dissenting.
I respectfully dissent for the following reasons: first, even viewing the evidence in a light most favorable to the State, the facts are insufficient to support a conclusion that the dog was under defendant’s control and should not have been considered a deadly weapon as a matter of law; and second, the jury instructions were inappropriate and prejudicial. This being a case of first impression, as noted by the majority, I am unpersuaded that the facts of this case are sufficient to establish the rule that in such a situation a dog is a deadly weapon.
The majority cites to cases from other states since this is a case of first impression for our courts. The other states which have ruled on this issue and found that a dog may be a deadly weapon, however, have done so with far clearer factual situations.
' In Morris v. State, 722 So. 2d 849 , 23 Fla. L. Weekly D 2563 (1998) (per curiam), the Court of Appeal of Florida, first district, was *144 presented with a case in which the dog was a large mixed breed resembling a Rottweiler, apparently owned by the defendant, and commanded to “sic” the officer. The issues of relative size of the dog to the victim and ownership and control of the dog by the defendant are distinguishable from the present case. In the present case, the defendant did not own or control the dog, which was smaller in proportion to the victim.
In People v. Nealis, 232 Cal. App. 3d Supp. 1 , 283 Cal. Rptr. 376 (1991), the Appellate Department, Superior Court of California, Los Angeles, decided a case in which the defendant-appellant brought a Doberman Pinscher in her car to a parking lot where she commanded the dog to attack the victim and his girlfriend repeatedly. The defendant also grabbed the girlfriend by the throat and scratched her, and would not command the dog to cease the attack. The California court considered the relevant factors to be the dog’s training to attack and the dog’s relative size to the victim. In that case, the court found that the dog was trained to attack on command, unlike the dog in the present case. The dog was also larger and stronger relative to the female victim than the dog in the case at bar, which was a medium sized mixed breed relative to an armed male police officer.
In State v. Bowers, 239 Kan. 417 , 721 P.2d 268 (1986), the Kansas Supreme Court decided a case in which two Doberman Pinschers were released to attack two police officers in the process of handcuffing the defendant. The defendant had warned the officers that the dogs were vicious and would “rip out the officers’ ‘guts’ and kill them.” Bowers, 239 Kan. at 419 , 721 P.2d at 270 . The defendant in the present case made no such warning, and the dog in this case was smaller and had no reputation for viciousness. There was also only one dog in the present case.
In State v. Bodoh, 226 Wis. 2d 718 , 595 N.W.2d 330 (1999), the Wisconsin Supreme Court was presented with a case in which the defendant was convicted of negligent handling of a dangerous weapon when his two Rottweilers attacked a fourteen-year-old boy on a bicycle. In State v. Sinks, 168 Wis. 2d 245 , 483 N.W.2d 286 (1992), the Court of Appeals of Wisconsin decided a case in which the defendant used a Doberman Pinscher to guard his victim, a female. He also used a knife, which was at all relevant times within his reach. In the case at bar, the dog was not as powerful relative to the victim and the defendant had no additional deadly weapon.
*145 In People v. Kay, 121 Mich. App. 438 , 328 N.W.2d 424 (1982), the Court of Appeals of Michigan decided a case in which the defendant commanded his German Shepherd to attack two store employees who followed him out of the store to his van, where the dog was, and accused him of stealing merchandise. Upon command, the dog lunged at one man’s face. The Michigan court reasoned by analogy to a New York case in which the New York court had found that the dangerous weapon statute “did not exclude large dogs trained to attack.” Kay, 121 Mich. App. at 443 , 328 N.W.2d at 426 . The Michigan court ruled that an animate object could be a dangerous weapon on those facts.
In Commonwealth v. Tarrant, 2 Mass. App. Ct. 483 , 314 N.E.2d 448 (1974), the Appeals Court of Massachusetts, Suffolk, found that defendant used a dangerous weapon when he used a medium-sized German Shepherd mix, and also carried a knife. While the dog in this case was the closest to the dog in the present case, the fact that the defendant also wielded a knife sets the case apart. The defendant in the present case did not have any weapon on his person, nor did he attempt to use any object to assault the officers.
In all the above referenced cases, the various courts found that a dog may be a deadly weapon in situations markedly different from the situation in the case at bar. In the present case, the dog was a medium-sized German Shepherd mix. Defendant was not the dog’s owner, and the dog was not trained to respond to commands. The dog was not a guard dog or a vicious dog, but only a pet, according to the owner’s testimony. The defendant fled the police officers into a nearby familiar backyard, that of his sister. He ran to the area where the dog was tied up. The dog attacked the officer when the officer struggled with the defendant within the radius of the dog’s tether. The facts do not indicate that the position was clear of the dog in defense and under the control of the defendant. The dog easily could have been guarding his territory, into which the officers had chased defendant. While I agree that a dog may be a deadly weapon in certain cases, the facts of the present case are not persuasive enough to establish that principle in our case law.
Moreover, the jury instructions, which repeatedly referred to “the dog under [defendant’s] control” were entirely inappropriate. Although the defendant did not properly preserve this issue for consideration by our Court, this taken together with the unpersuasive facts of this case cause me to believe that the jury was prejudiced by the trial court’s words, and that the facts alone do not support the *146 jury’s verdicts. For this reason, I would grant a new trial on the issue discussed above.