#29537-r-JMK

2022 S.D. 31

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee

v.

CHRISTOPHER MICHAEL ALEXANDER, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE THIRD JUDICIAL CIRCUIT

LAKE COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE PATRICK T. PARDY

Judge

* * * *

JASON R. RAVNSBORG

Attorney General

SARAH L. THORNE

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff and 

appellee.

MANUEL J. DE CASTRO, JR.

Madison, South Dakota Attorney for defendant 

appellant.

* * * *

CONSIDERED ON BRIEFS

OCTOBER 4, 2021

OPINION FILED 06/01/22
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KERN, Justice

[¶1.] Christopher Alexander owns a Rottweiler and two pit bulls. His 

neighbor, Michael Baartman, had contact with the two pit bulls on March 4, 2020, 

which culminated in Alexander being convicted of violating SDCL 40-1-23 for 

having a “potentially dangerous animal.” Although the circuit court convicted 

Alexander of the charge following a bench trial, the court expressed concern 

regarding the lack of due process in determining whether the animals were 

dangerous as defined in SDCL 40-1-1(5), a requirement for a conviction under 

SDCL 40-1-23. Alexander appeals the sufficiency of the evidence supporting his 

conviction. We reverse.

Factual and Procedural Background

[¶2.] Alexander and his girlfriend, Sierra Cundy, lived together with 

Alexander’s mother in Chester, South Dakota, from December 2019 through March 

4, 2020. Their next-door neighbor was Baartman. Alexander and Cundy had three 

dogs—one Rottweiler and two pit bulls.

[¶3.] On December 17, 2019, the first incident between Baartman and 

Alexander’s dogs took place. Alexander was not at home, but Cundy was home and 

out in the yard. Baartman was walking from his garage to his vehicle when 

Alexander’s Rottweiler ran toward Baartman. The Rottweiler stopped 

approximately two feet away from Baartman and, according to Baartman, was 

growling with its hair standing up on its back and with its teeth showing. 

Baartman kept slowly walking toward his vehicle and, when he came into the view 
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of Cundy, who was standing in her and Alexander’s yard, she called for the dog to 

come back to the yard and it obeyed her command.

[¶4.] Baartman told Cundy that she needed to keep the dog on a leash. 

Baartman testified at Alexander’s bench trial that he was “very scared of [the] dog” 

because he “thought it was going to take [him] down.” Baartman subsequently 

asked law enforcement what he could do about the dog. The officer who spoke to 

Baartman is not definitively identified in the record, but Baartman testified he or 

she told him that all Baartman could do was carry a gun and shoot the dog if it 

attacked him. Deputy Grant Lanning testified at Alexander’s bench trial that he 

spoke to Alexander on December 17 and advised him to keep his dogs contained and 

under control.

[¶5.] On March 4, 2020, Baartman had a second encounter with Alexander’s 

dogs. Alexander’s two pit bulls ran up to Baartman while he was walking to his 

vehicle. Alexander again was not home, but Cundy was. First, Alexander’s white 

pit bull ran up to Baartman, followed by Alexander’s brown pit bull. Baartman was 

carrying a gun and pointed it at the dogs but did not shoot because Cundy and two 

of her children were outside in the yard. Cundy called for the dogs and they ran 

back to her. The encounter lasted a few seconds and was captured, but without 

audio, by the surveillance camera of a neighbor who lived across the street.

[¶6.] Later in the day when Alexander learned what had happened with 

Baartman and the dogs, he called law enforcement and notified them that “Mr. 

Baartman pulled a gun on my dogs.” Alexander stated that the situation needed to 

be taken care of or he would take matters into his own hands, threatening that 
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Baartman “would not need a hospital because he would be dead.” Deputy Lanning 

then called Baartman to notify him of what Alexander had said.

[¶7.] Several Lake County Sheriff’s Deputies arrived at Alexander’s home 

the afternoon of March 4. They obtained surveillance camera footage of the incident 

from the neighbor across the street, issued Cundy, who was at home at the time, a 

ticket for keeping a “potentially dangerous animal,” and impounded the dogs. 

Cundy subsequently pled guilty and paid the ticket.

[¶8.] Deputy Sarina Talich, who drove the dogs to Madison for 

impoundment, testified at the bench trial that the dogs growled and barked while 

she was transporting them in her car. After arriving at the pound, the dogs were 

removed from the car using a lasso tool and moved into kennels, during which 

process they barked and growled. Once the dogs were placed in kennels and the 

other dogs at the pound, who had become excited with the arrival of Alexander’s 

dogs, settled down, Alexander’s dogs calmed down as well.

[¶9.] Deputies met with Alexander at his home on the evening of March 4. 

After some discussion, they ticketed him for failure to restrain a dangerous animal, 

a Class 1 Misdemeanor, under SDCL 40-1-23. Alexander was subsequently charged 

by information with the single count of having a “potentially dangerous animal” on 

March 10, 2020. Alexander was arraigned on April 29, 2020, entered a plea of not 

guilty, and requested a trial.

[¶10.] The parties tried the case before the circuit court on December 15, 

2020. After the evidentiary portion of the trial was complete, the court alerted the 

parties of its concern regarding the propriety of applying the definition of a 
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dangerous animal in SDCL 40-1-1(5) to a criminal charge under SDCL 40-1-23, 

stating, “I don’t know [whether] that’s constitutional or not. It certainly strikes the 

[c]ourt as backwards.” The circuit court reasoned, “It actually makes the law 

enforcement officer—it’s the only statute I know that does this—that makes the law 

enforcement officer the finder of fact. Not the court, not a jury.” The court further 

stated that “I just think that that’s a terrible standard, to let people involved in the 

situation, not an independent fact-finder, make that determination.” The circuit 

court began this discussion with the statement that “these may be two of the worstwritten statutes I’ve ever read, but they are presumed to be constitutional. So 

that’s where I’m starting.”

[¶11.] After analyzing the evidence, the circuit court found Alexander guilty 

as charged. As to the third element of the charge, in which the definition of 

dangerous animal in SDCL 40-1-1(5) was used to determine if Alexander’s dogs 

were dangerous, the circuit court stated that “[m]y finding that the animals are 

potentially dangerous is based strictly on the finding of the officer that the animal 

was potentially dangerous, which is what the statute says.” Additionally, the court 

stated that “if that wasn’t the standard, I would have acquitted. And being clear on 

the record, is that the video [from the neighbor’s surveillance camera]—there’s no 

way for me to tell in that video if the animals are dangerous.” Alexander was 

sentenced that same day to five days in the Lake County Jail, suspended, and 

ordered to pay restitution of $1,755 for the impoundment of his dogs. He was also 

ordered to have no contact with Baartman. A judgment of conviction was signed 

and filed on January 11, 2021.
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[¶12.] Alexander filed a notice of appeal on February 8, 2021, raising one 

issue which we restate as follows: whether the evidence presented at trial was 

sufficient to support his conviction for violation of SDCL 40-1-23 for keeping a 

“potentially dangerous animal.”

Standard of Review

[¶13.] Whether there is sufficient evidence “to sustain a conviction is 

reviewed de novo.” State v. McReynolds, 2020 S.D. 65, ¶ 11, 951 N.W.2d 809, 814. 

We consider “whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.” Id. (citation omitted). When reviewing a 

conviction rendered in a bench trial, “this Court defers to the [trial] court, as fact 

finder, to determine the credibility of witnesses and the weight to be given to their 

testimony.” State v. Rodriguez, 2020 S.D. 68, ¶ 55, 952 N.W.2d 244, 260 (citation 

omitted).

Analysis and Decision

[¶14.] To prove the charge of keeping a “potentially dangerous animal” under

SDCL 40-1-23, the State must prove, beyond a reasonable doubt, that (1) the 

defendant was the owner or caretaker of the animal, (2) the animal was not in a 

proper enclosure or confined or restrained, and (3) the animal was dangerous. 

SDCL 40-1-23 provides:

The owner or caretaker of a potentially dangerous animal shall 

keep such animal in a proper enclosure. If a potentially 

dangerous animal is not in a proper enclosure, it shall be 

directly accompanied by its owner or caretaker and confined or 

restrained in such a manner that, after investigation by the 

board, any peace officer, or any officer or agent of a humane 
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society, it is not a dangerous animal. The ownership or 

possession of a dangerous animal in violation of this section is a 

Class 1 misdemeanor.

SDCL 40-1-1(5) defines a dangerous animal for purposes of element (3) as “any 

animal that, by itself or by environmental circumstances, at the determination of 

the board, any agent or officer of a humane society, or any law enforcement officer, 

is a threat to the physical well-being of other owned animals or humans[.]”

[¶15.] Neither party disputes that the dogs were not in an enclosure, 

confined, or restrained. Although Alexander contends that because he was not 

home during the March 4 incident, he cannot be criminally responsible, the statute 

requires only that he be the owner or caretaker of the animal. Here, the circuit 

court determined that Alexander owned the dogs based on his statement to law 

enforcement that the dogs were “my dogs.” The evidence produced supports the 

court’s determination that elements (1) and (2) of SDCL 40-1-23 were proven at 

trial.

[¶16.] As to element (3), SDCL 40-1-1(5) provides in pertinent part that an 

animal is dangerous if “any law enforcement officer” determines that the animal “is 

a threat to the physical well-being of other owned animals or humans[.]” The court 

stated that its finding of dangerousness was “based strictly on the finding of the 

officer that the animal was potentially dangerous” and that “if that wasn’t the 

standard, I would have acquitted.”∗ We agree with the circuit court’s initial 

∗ The concurrence in result asserts that “there was no determination that 

Alexander’s dogs were dangerous animals within the definition of SDCL 40-1-

1(5).” However, the concurrence in result ignores the law enforcement 

determination that the dogs were dangerous in that law enforcement ticketed 

(continued . . .)
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impression of the statute and conclude that this evidence is not sufficient to support 

a conviction under SDCL 40-1-23.

[¶17.] Alexander argues that the testimony from law enforcement officers 

and the video admitted at trial support his theory that the dogs were not dangerous. 

Alexander contends that the video showed that the dogs ran up to Baartman and 

then ran away a few seconds later. Alexander emphasizes that there is no dispute 

regarding the accuracy of this depiction in the video as confirmed by Baartman and 

the law enforcement officers who testified regarding the video. Alexander further 

argues that the only law enforcement officer who testified to having interacted with 

the dogs, Deputy Talich, “did not testify that she believed the dogs to be a threat to 

other owned animals or humans . . . .” The State responds that, under SDCL 40-1-

1(5), it was only required to prove that a law enforcement officer made a 

determination that the dogs were dangerous, which occurred when law enforcement 

officers wrote Alexander the ticket for failing to restrain a dangerous animal. The 

State also relies in its brief before this Court on the testimony by law enforcement 

regarding their investigation of the incident and Deputy Talich’s observation of the 

dogs’ behavior as she transported the dogs to the pound as evidence supporting the 

dogs’ dangerousness.

[¶18.] In Alexander’s case, neither party, nor the circuit court, cited City of 

Pierre v. Blackwell. In Blackwell, an animal control officer determined that 

Blackwell’s dog was dangerous, and, on the basis of that determination, Blackwell 

________________________

(. . . continued)

Alexander for failing to restrain a dangerous (not potentially dangerous)

animal.
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was convicted for failing to comply with certain requirements that a City of Pierre 

ordinance imposed upon owners of animals declared by an animal control officer to 

be dangerous. 2001 S.D. 127, ¶¶ 16–17, 635 N.W.2d 581, 586–87. This Court held 

that Blackwell was not afforded due process when he was convicted based on the 

animal control officer’s determination of dangerousness. Id. ¶ 17, 635 N.W.2d at 

587. Although the Court determined that the city ordinances under which 

Blackwell was convicted afforded due process to owners of animals subject to the 

regulations, the Court concluded that the circuit court erred by “merely review[ing] 

the animal control officer’s decision for its legality” rather than making an 

“independent determination of dangerousness by a neutral judicial officer as part of 

the criminal proceeding.” Id. ¶¶ 16–18, 635 N.W.2d at 586–87. The Court therefore 

reversed Blackwell’s conviction because he was deprived of his right to have the 

State prove the dog was a dangerous animal beyond a reasonable doubt and 

remanded the matter for further proceedings. Id. ¶ 18, 635 N.W.2d at 587.

[¶19.] Blackwell, although decided on due process grounds, is instructive in 

this case in that an officer’s sole determination that an animal is dangerous does 

not suffice to prove that an animal is dangerous beyond a reasonable doubt in a 

criminal proceeding implicating due process rights. Rather, a neutral factfinder 

must conclude from the evidence presented at trial whether the animal is dangerous 

for purposes of satisfying the third element of SDCL 40-1-23. In this case, the 

circuit court did not make this required finding and instead expressed that it 

considered itself bound by the officer’s determination of dangerousness because the 

language of the statute appears to require nothing further. The circuit court noted 
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that if the definition of a dangerous animal as provided in SDCL 40-1-1(5), 

requiring only an officer’s determination that the dogs were dangerous, “wasn’t the 

standard, I would have acquitted.” (Emphasis added.) Because Blackwell

mandates that due process requires a higher standard than that stated in SDCL 40-

1-1(5) to prove the dangerousness of an animal in a criminal proceeding, and 

because the circuit court clarified that it would have acquitted but for the SDCL 40-

1-1(5) language, we reverse Alexander’s conviction.

[¶20.] DEVANEY and MYREN, Justices, concur.

[¶21.] JENSEN, Chief Justice, and SALTER, Justice, concur in result.

SALTER, Justice (concurring in result).

[¶22.] I agree that there is insufficient evidence to sustain Alexander’s 

conviction for violating SDCL 40-1-23. The statute criminalizes possession of a 

dangerous animal—not a potentially dangerous one. A dangerous animal is one 

that has been determined to be “a threat to the physical well-being of other owned 

animals or humans[.]” SDCL 40-1-1(5). This determination can be made by “the 

board, any agent or officer of a humane society, or any law enforcement officer[.]” 

Id.

[¶23.] Here, there was no determination that Alexander’s dogs were 

dangerous animals within the definition of SDCL 40-1-1(5). Therefore, the State 

failed to present any proof on this element of SDCL 40-1-23, and Alexander’s 

misdemeanor conviction should be reversed. The circuit court’s reliance upon the 

officer’s post-seizure opinion of the dogs’ dangerousness is problematic, as the court 

suspected, but not simply because it ultimately treated the testimony as dispositive. 
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What makes the conviction unsustainable is the absence of an earlier determination 

that the dogs were dangerous animals.

[¶24.] For this reason, I think it is unnecessary to rely upon our decision in 

Blackwell. And it may also be unwise to do so. I am concerned that our opinion in 

Blackwell may have confused the question of whether a dog was objectively 

dangerous with whether the dog was a “dangerous animal.” The latter was the 

actual element there, as it is here, and I tend to think “dangerous animal” is a 

status—as evidenced by its specific definition in SDCL 40-1-1(5)—to be determined 

before a person can be subjected to criminal liability, not after.

[¶25.] But any further discussion in this regard is best left for another day 

because we can and should reverse the conviction here without regard to Blackwell.

[¶26.] JENSEN, Chief Justice, joins this writing.