City Of Seattle v. Janet Norman

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CITY OF SEATTLE,
No. 72667-6-1
Respondent, C~i

DIVISION ONE
v.
PO

JANET NORMAN, UNPUBLISHED OPINION c

Appellant. FILED: February 16, 2016

Becker, J. — A dog bit his owner's neighbor. The dog's owner was

convicted of owning a dangerous animal in violation of the Seattle Municipal

Code, a crime for which death of the animal is a mandatory sentence. The dog

owner appeals. We conclude that the animal control officer's testimony

constituted improper opinion evidence on whether the dog bite was unprovoked.

For this reason, we reverse.

FACTS

Appellant Janet Norman, a 79-year-old Seattle resident, owns a German

Shepherd dog named Duncan. Melania Grant, approximately 30 years old, lived

across the street from Norman on September 22, 2012. That day, Grant

approached the front door of Norman's house, wanting to borrow tools to fix her

car. When Norman opened her front door, Duncan shot past her and bit Grant's

arm. Grant's mother immediately drove her to the hospital, where the doctors
No. 72667-6-1/2

mended the wound with approximately 50 stitches. The record contains no

evidence that Duncan had ever bit anyone before this incident occurred. Animal

Control Officer James Jackson investigated the incident and concluded the

attack was unprovoked. Later, a different animal control officer went to Norman's

home twice and told her she might face a criminal charge unless she removed

the dog from within the city limits. Norman decided to keep Duncan with her in

Seattle. As a result, the city decided to bring a criminal charge.

Norman was charged with the crime of owning a dangerous animal in

violation of Seattle Municipal Code 9.25.083(A). If an animal owner is found

guilty of this offense, the animal "shall" be euthanized. SMC 9.25.083(C).

Norman's trial occurred in Seattle Municipal Court in January 2014. Grant

was not present at trial. Norman did not testify. No one who testified at trial had

seen Duncan attack Grant. A jury found Norman guilty of owning a dangerous

animal. The court ordered Norman to surrender Duncan, and he is currently

detained at a kennel pending the outcome of these proceedings.

Norman appealed her conviction to superior court, and the court upheld

the conviction. Norman then obtained a grant of review from this court.

INTERPRETATION OF THE SEATTLE MUNICIPAL CODE

Seattle's municipal code contains an administrative process by which an

authorized city representative may declare an animal dangerous. SMC 9.25.035-

36. The administrative process contains various procedural safeguards, such as

written notice, an opportunity to respond at a meeting, a written decision, and an

appeal. The same chapter of the code also defines the crime of owning a
No. 72667-6-1/3

dangerous animal. SMC 9.25.083. Norman contends that the ordinance

requires the city to declare her dog dangerous in accordance with the

administrative process of SMC 9.25.035 before it can charge her with owning a

dangerous animal under SMC 9.25.083.

Our paramount duty in construing this ordinance is to ascertain and give

effect to the intent of the city council. See, e.g., Hiqqins v. King County, 89 Wn.

App. 335, 948 P.2d 879 (1997). We are to interpret each section of a statute in

connection with every other section in order to harmonize the statute as a whole.

Belleau Woods II, LLC v. City of Bellingham, 150 Wn. App. 228, 242-43, 208 P.3d

5, review denied, 167Wn.2d 1014(2009).

An animal owner may be convicted of owning a dangerous animal under

either prong A or B of SMC 9.25.083:

A. It is unlawful to own a dangerous animal (other than a licensed
guard or attack dog) with knowledge that the animal is
dangerous, or with reckless disregard of the fact that the animal
is dangerous.
B. It is unlawful to possess within the City of Seattle any animal
that has been ordered removed from the City of Seattle
pursuant to SMC 9.25.035.

For the purposes of the charge against Norman, "dangerous animal" was defined

for the jury as any animal that "when unprovoked, inflicts severe injury on or kills

a human being or domestic animal on public or private property." SMC

9.25.020(G)(1).

Norman was charged and convicted under prong A. The plain language of

prong A does not require that the animal was previously declared dangerous

under the administrative process at SMC 9.25.035. In contrast, the plain
No. 72667-6-1/4

language of prong B requires that the animal was previously ordered removed

from Seattle pursuant to SMC 9.25.035. Under that section, removal can be

ordered only after the animal has been declared dangerous in an administrative

process. SMC 9.25.035(A). In other words, a conviction for owning a dangerous

animal under prong B by definition requires a prior administrative declaration that

the animal is dangerous. The contrast between prongs A and B demonstrates

that the Seattle City Council knew how to make an administrative determination

of dangerousness a prerequisite for convicting a person of owning a dangerous

animal. The fact that the city council did not include such a prerequisite in the

plain language of prong A shows that they did not intend such a requirement.

Interpreting the Seattle ordinance in another case, the Washington

Supreme Court recognized that a finding of viciousness (now called

dangerousness) under the city code may be made by the director

administratively pursuant to SMC 9.25.035 or necessarily made by the jury in

finding him guilty of owning a vicious animal. Rabon v. City of Seattle, 135

Wn.2d 278, 295, 957 P.2d 621 (1998). The court's interpretation confirms the

plain language of the statute—that an animal may be declared dangerous either

by the administrative process at SMC 9.25.035 or by a jury at a criminal trial.

For her argument that a charge of owning a dangerous animal must be

dismissed where it is not preceded by an administrative declaration of

dangerousness, Norman cites State v. Bash, 130 Wn.2d 594, 925 P.2d 978

(1996). In Bash, the statute provided that "'the owner of any dog that

aggressively attacks and causes severe injury or death of any human, whether
No. 72667-6-1/5

the dog has previously been declared potentially dangerous or dangerous, shall

be guilty'" of a felony. Bash, 130 Wn.2d at 600 (emphasis added), quoting former

RCW 16.08.100(3) (1987). The court interpreted this statute to require a

previous declaration of either dangerousness or potential dangerousness. Bash,

130 Wn.2d at 603. Norman cites to Chief Justice Durham's concurring opinion

that dismissal was required because there was no allegation that a previous

declaration of dangerousness or potential dangerousness had been made.

Bash, 130 Wn.2d at 613. The statute in Bash is not the same as the ordinance

at issue here. Prong A does not require a previous declaration that the animal

was potentially dangerous or dangerous. For this reason, Bash does not support

Norman's argument that she could not be charged with owning a dangerous

animal absent a previous administrative declaration of dangerousness.

We conclude that the Seattle Municipal Code does not require the city to

administratively declare an animal dangerous before charging the owner with

owning a dangerous animal.

DUE PROCESS

Norman was convicted after a jury trial in Seattle Municipal Court—"a

criminal proceeding with maximum due process protection." Rabon v. City of

Seattle, 107 Wn. App. 734, 744, 34 P.3d 821 (2001). At Norman's trial, the city

had the burden of proof and the jury was properly instructed regarding this

burden. Norman does not claim that any due process violations occurred during

her trial.
No. 72667-6-1/6

Instead, Norman claims that it was a denial of due process for the city to

charge her with owning a dangerous animal without first administratively

declaring Duncan dangerous pursuant to SMC 9.25.035. A municipal ordinance

is presumed to be constitutional, and the party challenging it has the burden of

proving its unconstitutionality beyond a reasonable doubt. City of Seattle v.

Montana, 129 Wn.2d 583, 589, 919 P.2d 1218(1996).

Norman cites to an Ohio case for the proposition that a defendant's due

process rights are violated when there is no administrative hearing before

criminal charges are filed. State v. Cowan, 103 Ohio St. 3d 144, 2004-Ohio-

4777, 814 N.Ed.2d 846. In Cowan, the deputy dog warden made a unilateral,

unreviewable determination that the owner's dogs were vicious. The State then

criminally prosecuted the dog owner for failing to confine a vicious dog. At the

criminal trial, the State repeatedly told the jury the dog warden had already

determined that the dogs were dangerous and it was not the jury's job to decide

whether it was fair for the dog warden to make this determination. The Ohio

Supreme Court found that the "vicious" element of the crime was removed from

the jury's consideration and thus the dog owner was unconstitutionally deprived

of her due process right. Cowan, 103 Ohio St. 3d at 148-49. In contrast, in this

case, the jury did determine on its own that Duncan was dangerous, so the

problem that existed in Cowan does not exist here.

Norman's case is more analogous to another Ohio case she cites,

Younostown v. Travlor. 123 Ohio St. 3d 132, 2009-Ohio-4184, 914 N.E.2d 1026.

The Ohio Supreme Court held that a vicious dog ordinance did not violate the
No. 72667-6-1/7

dog owner's procedural due process rights where the dogs' viciousness was an

element of the crime that the State had the burden of proving. Travlor, 123 Ohio

St. 3d at 136. The dogs were alleged to be vicious in the criminal complaint, and

the dog owner was given an opportunity for meaningful review in front of the trial

court. Travlor, 123 Ohio St. 3d at 137. Similarly, Duncan's dangerousness was

an element of the crime that the city had the burden of proving at trial. Duncan's

dangerousness was alleged in the criminal complaint, and Norman had a criminal

trial affording her maximum procedural due process. Norman has not met her

burden to prove beyond a reasonable doubt that the ordinance under which she

was convicted had to include a preliminary administrative determination of

dangerousness in order to comport with due process.

EQUAL PROTECTION AND PRIVILEGES AND IMMUNITIES

If an animal is administratively declared dangerous in Seattle, the animal

may be sent to a secure animal shelter, removed from the city, or euthanized.

SMC 9.25.035(A). But if an animal owner is convicted of owning a dangerous

animal, as Norman was, the animal shall be euthanized. SMC 9.25.083(C). The

heart of Norman's complaint is that the city, on Duncan's first offense, proceeded

directly to criminal charges which mandate death as a penalty rather than

administratively declaring him dangerous and retaining the option to spare his

life. Norman challenges the city for creating disparate penalties for the same

conduct and for choosing to prosecute Norman under the harsher ordinance.

Norman argues that the penalty disparity violates her rights both under the equal

protection clause of the Fourteenth Amendment and under the privileges and
No. 72667-6-1/8

immunities clause of the Washington State Constitution. Again, a municipal

ordinance is presumed to be constitutional, and the party challenging it has the

burden of proving its unconstitutionality beyond a reasonable doubt. Montana,

129Wn.2dat589.

Norman refers to a violation of the equal protection clause in passing, but

does not brief the issue. Indeed, she acknowledges that the case she would like

to rely on for such a claim, State v. Zornes, 78 Wn.2d 9, 475 P.2d 109 (1970), is

no longer good law. Zornes held that acts defining the same offense for the

same conduct but prescribing different punishments violate an individual's right to

equal protection under the Fourteenth Amendment. Zornes, 78 Wn.2d at 21, 24-

25. But the equal protection analysis in Zornes was later overruled by the

Supreme Court in United States v. Batchelder, 442 U.S. 114, 125, 99 S. Ct. 2198,

60 L. Ed. 2d 755 (1979), where the Court held that the prosecutor's ability to

choose to proceed under identical criminal statutes prescribing different

penalties, standing alone, does not give rise to an equal protection violation. See

City of Kennewick v. Fountain, 116 Wn.2d 189, 802 P.2d 1371 (1991)

(recognizing that Batchelder overruled Zornes as to equal protection analysis

under the Fourteenth Amendment). Norman cites no authority to support her

equal protection argument. "Where no authorities are cited in support of a

proposition, the court is not required to search out authorities, but may assume

that counsel, after diligent search, has found none." DeHeer v. Seattle Post-

Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962). Norman's Fourteenth

Amendment equal protection claim fails for lack of authority.

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No. 72667-6-1/9

To establish a violation of the privileges and immunities clause of the state

constitution, the challenger must show that the law, or its application, confers a

privilege to a class of citizens. Grant County Fire Prot. Dist. No. 5 v. City of

Moses Lake, 150 Wn.2d 791, 812, 83 P.3d 419 (2004). The first step of the

analysis is to determine whether the law in question involves a privilege or

immunity; if not, the privileges and immunities clause is not implicated. Grant

County, 150Wn.2dat812.

The term "privileges and immunities" is limited to "'those fundamental

rights which belong to the citizens of the state by reason of such citizenship.'"

Grant County, 150 Wn.2d at 812-13, quoting State v. Vance, 29 Wash. 435, 458,

70 P. 34 (1902). Included are the right to carry on business; the right to acquire

property and protect it under the law; the right to usual remedies to collect debts

and enforce other personal rights; and the right to be exempt, in property or

persons, from taxes or burdens which citizens of other states are exempt from.

Grant County, 150 Wn.2d at 813. The statutory authorization allowing

landowners to petition for annexation is not included because it does not involve

a fundamental attribute of an individual's state or national citizenship. Grant

County, 150 Wn.2d at 812-13. A person's property interest in dogs is imperfect

or qualified rather than absolute. Am. Dog Owners Ass'n v. City ofYakima, 113
Wn.2d213, 777 P.2d 1046 (1989); Rabon, 107 Wn. App. at 743. That is, the

State may use its police power to regulate and destroy dogs in order to protect

human citizens. Rabon, 107 Wn. App. at 743. Because a person has no

fundamental right as a citizen to own a dog, the Seattle ordinance in question
No. 72667-6-1/10

does not involve a privilege or an immunity. Norman's claim under the

Washington Constitution privileges and immunities clause also fails.

OFFICER JACKSON'S TESTIMONY

At Norman's trial in January 2014, the city was confronted with a problem.

None of the witnesses had seen Duncan attack Grant. Grant was unavailable as

a witness because she had moved out of state and Norman did not testify. A

dangerous animal is defined as one that inflicts severe injury or kills "when

unprovoked." SMC 9.25.020(G)(1). To convict Norman of owning a dangerous

animal, the city had to prove without an eyewitness that Duncan's bite was

unprovoked. The city tried to solve this problem by having Officer Jackson testify

about his investigation of the dog bite. Norman assigns two errors to the

admission of Officer Jackson's testimony.

The first issue concerns the admission of Grant's out-of-court description

of the incident in her interview with Officer Jackson. Norman raised a preliminary

objection to the city's plan to have Officer Jackson testify about Grant's

statement, arguing that it was inadmissible hearsay and violated the

confrontation clause. The city countered that Grant's statement would not be

offered for the truth of the matter asserted but rather to show how Norman

reacted when Officer Jackson repeated it to her. Norman's reaction could then

be admitted as an admission of a party opponent. The trial court agreed with the

city and ruled that Officer Jackson would be allowed to testify as to what he told

Norman that Grant told him.

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No. 72667-6-1/11

At trial, the prosecutor asked Officer Jackson what he told Norman about

his interview with Grant:

Q. [Prosecutor:] What did you tell the defendant Ms. Grant had
told you?
A. [Officer Jackson:] Urn, I told her that the—Ms. Grant said she
came over to the house to borrow something, and that when
she knocked on the door, urn, the defendant opened up the
door and that the dog came out, immediately charged past
her and began lunging and snapping and then finally biting
her.

The prosecutor then asked about Norman's response:

Q. [Prosecutor]: . . . Officer Jackson, when you told the
defendant what Ms. Grant had told you, how did she react?
A. [Officer Jackson]: Urn, the defendant acknowledged that
incident occurred. She said that Duncan had got—got past
her when she opened up the door, urn, and—and bit the—her
neighbor. She also said that the reason why she opened the
door—normally she'll put the dog up, but because Duncan
didn't show any type of aggressive behavior when . . . Ms.
Grant knocked on the door, Duncan didn't show any type of
aggressive behavior, so she thought it was okay, and she
opened up the door and didn't—Duncan shot past her.

Norman contends that the admission of Officer Jackson's testimony about

Grant's out-of-court statement violated the confrontation clause of the Sixth

Amendment. Our review is de novo. State v. Koslowski, 166 Wn.2d 409, 417,

209 P.3d 479 (2009). The confrontation clause "does not bar the use of

testimonial statements for purposes other than establishing the truth of the matter

asserted." Crawford v. Washington, 541 U.S. 36, 59-60 n.9, 124 S. Ct. 1354, 158

L. Ed. 2d 177(2004).

Norman confirmed the facts contained in Grant's statement: as Norman

opened the door, Duncan got past her and bit Grant. Norman's statement was

admissible as a statement of a party opponent. ER 801(d)(2). With Norman's

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No. 72667-6-1/12

statement having been ruled admissible, the city did not need all the details in

Grant's statement. If the idea was to set the stage for Officer Jackson's

testimony quoting Norman's reaction to Grant's account, the prosecutor could

have simply asked Officer Jackson what Norman said about the incident in

reaction to hearing him report Grant's account of it. Because the set-up for

Norman's statement could have been done without having Officer Jackson repeat

Grant's out-of-court statement, the city's explanation that Grant's statement was

offered solely to show Norman's reaction is not entirely convincing. But even if

Grant's statement to the officer was not properly admitted, the error was probably

harmless, given that Grant's and Norman's statements were much the same.

This brings us to Norman's second evidentiary issue: that Officer Jackson

was allowed to say that Duncan's bite was unprovoked. We agree with Norman

that this statement was improper opinion testimony and the error was prejudicial.

Norman asked that Officer Jackson be instructed not to testify that

Duncan's bite was unprovoked, arguing that it was an improper legal opinion.

The trial court agreed and ruled that Officer Jackson could testify "why he did

what he did" without drawing the legal conclusion that the bite was unprovoked.

Nevertheless, Officer Jackson testified that he told Norman the bite was

unprovoked:

Q. [Prosecutor:] Can you please explain to the jury what you
explained to the defendant that day.
A. [Officer Jackson:] I explained that a unprovoked bite—well,
first I started a provoked bite. A provoked bite—I explained
the unprovoked bite first. I explained that the unprovoked
bite is when a person, urn, is walking down the street and
your dog leaves the premises and bites the individual without
any provocations. Urn, and then I went into the provoked

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No. 72667-6-1/13

bite, the dog is provoked ifthe dog is teased, tantalized, urn,
protecting property or protecting the owner.
Q. [Prosecutor:] And what did you tell the defendant about this
bite?
A. [Officer Jackson:] And I told the defendant that this bite is a
unprovoked bite because—
MS. BERNHEIM: Objection, your Honor. This was
addressed earlier.
THE COURT: Ask a different question.
MS. LONGANECKER: Your Honor, may I have a side
bar?
THE COURT: Actually, I'm going to allow the—I'm
going to allow the statement.
MS. LONGANECKER: Thank you.
THE COURT: You can ask it again.
Q. [Prosecutor:] What did you tell the defendant about this
bite?
A. [Officer Jackson:] I told her this bite was an unprovoked bite.
Q. [Prosecutor]: And how did she react when you told her that?
A. [Officer Jackson] She said, after explaining it, she said she
understood, and I told her that I was going to issue her a
citation for that bite.

Atrial court's ruling on the admissibility of opinion evidence is reviewed for

abuse of discretion. State v. Demerv. 144 Wn.2d 753, 758, 30 P.3d 1278 (2001).

Generally, no witness may testify to an opinion regarding the guilt of the

defendant, whether by direct statement or inference. State v. Black, 109 Wn.2d

336, 348, 745 P.2d 12 (1987). Such testimony is unfairly prejudicial because it

invades the exclusive province of the fact finder. Black, 109 Wn.2d at 348. In

deciding whether statements are impermissible opinion testimony, we consider

the entire circumstances of the case, including the following factors: the nature of

the charges, the type of defense, the type of witness involved, the specific nature

of the testimony, and the other evidence before the trier of fact. City of Seattle v.

Heatlev, 70 Wn. App. 573, 579, 854 P.2d 658 (1993), review denied, 123 Wn.2d

1011 (1994).

13
No. 72667-6-1/14

Norman's defense was that the city had not carried its burden of proving

the bite was unprovoked. Provocation was the only disputed fact for the jury.

The fact that Officer Jackson's opinion went to the core disputed issue made it

more likely to constitute improper opinion testimony. See, e.g., State v.

Montgomery. 163 Wn.2d 577, 594, 183 P.3d 267 (2008) (opinion testimony that

went to defendant's intent, the core issue and only disputed element, was

improper); State v. Farr-Lenzini. 93 Wn. App. 453, 462-63, 970 P.2d 313 (1999)

(in prosecution for attempting to elude, officer's testimony that defendant was

attempting to get away went to a core contested issue and was improper).

The specific nature of Officer Jackson's testimony was a legal conclusion.

Under ER 704, a witness may testify as to matters of law but may not give legal

conclusions. Hyatt v. Sellen Constr. Co., Inc., 40 Wn. App. 893, 899, 700 P.2d

1164 (1985). Improper legal conclusions include testimony that a particular law

applies to the case or that the defendant's conduct violated a particular law.

Hyatt. 40 Wn. App. at 899. For example, it was improper for a law enforcement

officer to testify that he had been trained in the elements of reckless driving, that

the defendant's actions fit within those elements, and that he issued the

defendant a citation. State v. King, 167 Wn.2d 324, 331-32, 219 P.3d 642 (2009).

In another case, the witness testified that the propane tanks in question were not

approved by the Department of Transportation. State v. Qlmedo, 112 Wn. App.

525, 532-33, 49 P.3d 960 (2002), review denied, 148 Wn.2d 1019 (2003). The

testimony constituted an improper legal conclusion because it required applying

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No. 72667-6-1/15

the law defining an approved propane tank to the facts of the defendant's case.

Olmedo, 112 Wn. App. at 532.

Officer Jackson said he first explained to Norman how the law

distinguishes a provoked bite from an unprovoked bite. He then applied the legal

definitions to the facts of Duncan's bite and told her his conclusion that it was an

unprovoked bite. He told Norman he was going to issue her a citation for the

bite, a finding of guilt. He essentially stated the legal definition, applied it, and

found Norman guilty. Under ER 704, King, and Olmedo, this was improper legal

opinion testimony.

The city's other evidence on the issue of provocation was not particularly

strong. Officer Jackson formed his opinion that the bite was unprovoked based

on his post-bite interviews, not on a personal observation of the incident. By

contrast, in Heatley. the officer's opinion that the driver was intoxicated was

based on detailed testimony about his personal observations of the driver's

physical condition and performance on the field sobriety tests. The jury was

therefore in a position to independently assess the opinion in light of the

foundation evidence. Heatley, 70 Wn. App. at 581-82.

When a law enforcement officer gives opinion testimony, the jury is

especially likely to be influenced by that testimony. State v. Carlin, 40 Wn. App.

698, 703, 700 P.2d 323 (1985). A law enforcement officer's live testimony during

trial will often carry an aura of special reliability and trustworthiness. Demery.

144 Wn.2d at 763. Because Officer Jackson is a law enforcement officer, his

improper opinion testimony was especially prejudicial. In sum, all the Heatley

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No. 72667-6-1/16

factors indicate that Officer Jackson's opinion testimony improperly usurped the

role of the jury.

The city argues that Officer Jackson's testimony was a fair opinion as to

the significance of the circumstances surrounding the dog bite and that it was

then up to the jury to decide whether Duncan was dangerous. The city cites

State v. Nelson, 152 Wn. App. 755, 763-64, 219 P.3d 100 (2009), review denied,

168 Wn.2d 1028 (2010). However, Nelson involved an expert witness, an

investigator who specialized in infiltrating animal fighting rings. He testified about

evidence found at the property of defendants charged with animal fighting and

concluded that that it was a dog fighting operation and that the dogs were

possessed with the intent that they be engaged in dogfighting. Nelson, 152 Wn.

App. at 763-64. The appellate court found that the trial court did not abuse its

discretion in allowing this testimony because it was a classic expert opinion,

pulling disparate pieces of evidence into a coherent picture for jurors who would

not be familiar with the world of dogfighting. Nelson, 152 Wn. App. at 765-69.

The jury could accept or reject the expert's characterization of the evidence.

Nelson, 152 Wn. App. at 765-69. In contrast, here Officer Jackson was not

attempting to explain the significance of evidence but rather was allowed to

repeat his personal legal conclusion that the bite was unprovoked, when that

element was strictly a question for the jury to decide. For this reason, Nelson

does not demonstrate that Officer Jackson's opinion testimony was proper.

16
No. 72667-6-1/17

We conclude that the trial court abused its discretion in allowing Officer

Jackson's improper opinion testimony and that the error was not harmless in light

of the scarcity of other evidence that the bite was unprovoked.

Reversed.

(f
WE CONCUR:

/

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