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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION April 25, 2017
9:00 a.m.

v No. 333790
Eaton Circuit Court DANIEL RIDGE, LC No. 16-020086-FH

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 333791
Eaton Circuit Court DEBRA OLNEY, LC No. 16-020087-FH

Defendant-Appellant.

Before: B ORRELLO , P.J., and W ILDER and S WARTZLE , JJ.

B ORRELLO
, P.J.

In these consolidated cases, defendants Daniel Ridge (Docket N o. 333790) and Debra Olney (Docket No. 333791) appeal by leave granted 1 a June 27, 2016, circuit court order denying their motions to quash their bi nd-overs on charges of owning a dangerous animal causing serious injury in violation of MCL 287.323(2). For the reasons set for th in this opinion, we reverse and remand for entry of an order quashing the bind-overs.

I. FACTS

1 People v Ridge , unpublished order of the Court of Appeals, entered November 9 , 2016 (Docket No. 333790); People v Olney , unpublished order of the Court of Appeals, entered November 9

, 2016 (Docket No. 333791).-2- Defendants Daniel Ridge and Debr a Olney are married. In Septe mber 2015, the couple lived in a residential neighborhood and owned two dogs. The do g at issue in this case was a “possible pit bull, Shar-Pei mix” named Roscoe.

Jill Flietstra, an employee of Scott’s Lawn Care, testified th at when she arrived at the property next door to the home of defendants on September 10, 2 015, she “saw two large dogs in defendants’ backyard.” Flietstra testified that the property s he was working on and defendants’ property were separated by a chain-link fence. Flietstra testi fied that the dogs “seemed like normal dogs” to her and denied th at their behavior caused her c oncern—even when they were jumping on the fence.

Flietstra testified that she began spraying fertilizer and wee d control, but took care to avoid spraying around the animals. Flietstra testified that wh en she was spraying near the fence line in issue, she was “approxima tely three feet away” from the fence. Her back w as to the fence and she was “spraying forward.” Janis Strang, one of defendant s’ next door neighbors testified that she observed Flietstra spraying the day she was injured. Janis testified that Flietstra was approximately five feet from the fence when spraying and that F lietstra was “probably” spraying about five or six feet away from her body.

Flietstra testified that while she was spraying, Roscoe got “p artially underneath the fence” and “grabbed [her] by the boot.” Flietstra testified th at Roscoe “pulled [her] leg partially underneath” the fence during the ensuing struggle. She said sh e “couldn’t get away from its grasp, so [she] let it take [her] boot off.” After she lost he r boot, Roscoe “completely came underneath the fence, squared off with [her] and started coming after [her].” Flietstra testified that when the dog “charged,” she t ried to “block it” using her hands, which were gloved; Roscoe then “kept biting” and “was grabbing, clenching, and then shaki ng its head” while biting her
hands. Flietstra testified that Roscoe also “got a hold of her pants” and was “biting everywhere it
could.”

Flietstra testified that “[e]ventually, the dog kind of tired out a little bit and [she] seized that opportunity to jump on top of it.” Flietstra testified th at she was holding Roscoe by the collar with one hand, while the “other hand [was] in its mouth so it would stop biting [her] abdomen and [her] legs and eve rything” when police arrived.

Janis Strang testified that she heard a lot of barking from de fendants’ yard. Janis noted that defendants’ dogs “bark all the time, but they acted like s omething was really agitating them” that day. Janis described the dogs as “barking at something on the other side of the fence. And I mean really barking; they were hitting the fence, and—and jumpi ng.” Janis testified that she heard Flietstra scream “get off me” and then continue screaming . Janis stated that she could not see Flietstra, but saw Roscoe “shaking . . . like [he] was atta cking.” She called 911. Janis denied ever calling animal control or t he police regarding Roscoe prio r to the attack on Flietstra.

Eaton County Sheriff’s Department Deputy Joe Travis testified that he was notified by dispatch of “a [sic] animal bite in progress.” Travis arrived at the home of defendants’ neighbor, Janis Strang, who pointed to where a female was being attacked. Travis ran to the next yard where he saw a dog pulling Flietstra. Travis approached and ye lled something and the dog-3- released. Travis testified that he then shot and killed the do g as it appeared ready to charge at
him.

Travis testified that Flietstra “stated that she could not mov e her arms; that she thought she had several broken bones,” and he observed “several punctur es and—and bleeding.”
Flietstra testified that she “ha d bite marks just everywhere, a ll over my body, contusions, bruising.” She explained that “the dog bit through a [bone] in my left hand. I [had] one more fracture in my left hand near my pinkie bone. I had to get six large puncture wounds stitched up
with eleven stitches . . . .”

Detective Christopher Burton investigated the attack on Fliets tra. Burton testified that he spoke with defendants. Ridge described the dog as a “family do g” and had Roscoe for about “two, three years” prior to the incident. Ridge informed Burto n that “the dog’s never been aggressive before. Never heard him growl at anybody or bite an ybody before.” Burton testified that Olney echoed Ridge’s statements, stating that “she was ver y surprised this would happen; again because [the dog] wasn’t violent towards anyone in the pa st. And they have a lot of people that are in and out of the house. And the dogs have never show n any violence towards them in the house.” However, Ridge acknowledged that Roscoe previously attacked the neighbor’s lawnmower and on one occasion Roscoe punctured the tire of Denn is Strang’s lawnmower.

Dennis testified that Roscoe bit his tractor tires twice. The first time the dog bit the lawnmower tires Roscoe got his face under the fence and bit the tire, causing enough damage to necessitate repairs. According to Dennis, the other time he “p ulled [Roscoe] the rest of the way through the fence” by reversing hi s tractor. Dennis testified that as he was tak ing Roscoe back to defendants’ property, he “wouldn’t look at the dog. Because an animal can sense fear, and [he] was afraid if [he] looked at the dog he might attack [him].” D ennis testified that he spoke with Ridge after the second incident a nd that Ridge told him “they w ere trying to find another home for the dog.” Dennis denied infor ming Ridge that he was afraid of Roscoe.

Dennis testified that after the second attack on the lawnmower he began carrying his handgun with him while he mowed his lawn. Dennis also testifie d that he observed Ridge “put[ting] some more fencing up” and testified that Dennis “cu t a piece of four-by-four and put it down by the fence so the dog couldn’t get though again.” Bu rton testified that defendants “tried securing the bottom of the fence and put some meshing on the bottom of the fence along both fence lines” and “[t]hey put some slats that they got from another neighbor or from someone to try and block the view of the dog.”

Dr. Jennifer Link, an Associate Veterinarian at the Miller Ani mal Clinic, testified that Roscoe, was a “neutered male” dog born May 24, 2014, and was tr eated at the Miller clinic. Link testified that Olney requested “a letter of the temperamen t of the dog.” That letter indicated: “[a]ccording to [the clinic’s] records [the dog] nev er displayed any signs of aggression or required the use of a muzzl e or sedation to be handled.”

Janis Strang testified that she did not have any previous “con tact” with Roscoe because she did not “go in the backyard.” Janis testified that she kep t to her deck “cause you can get back in the house really fast because the slider’s right there. ” “[I]f I ever went down to, like, water my plants,” she continued, “he [Roscoe] was always there barking and being really-4- aggressive.” Janis also testified that “[n]one of [her] grandk ids would go in the backyard,” and noted that Roscoe “was scary,” and would bark at “anything that moved.” Dennis testified that their grandchildren “didn’t play in the backyard ‘cause [sic] t he dogs just raised so much hell that there’s no reason.” Dennis also testified he saw Roscoe playin g with defendants’ children and had not witnessed the dog be aggressive with defendants’ childr en. Dennis stated that defendants’ dogs would run at the fence when he was in his back yard and would bark, jump and
bite the fence.

Victoria Steffy, an acquaintance of Olney, testified that Olne y described Roscoe as a pit bull and said “they were having some issues with his behavior a nd with their neighbors.” Steffy testified that Olney told her sh e was having a problem with Ros coe “biting tires of lawn mowers” and with “her neighbors being af raid of him.” Steffy told Olne y that biting tires is “unacceptable behavior for any dog.”

Following the conclusion of the police investigation into the d og attack, plaintiff charged defendants under MCL 287.323(2), which provides as follows:

If an animal that meets the definition of a dangerous animal i n [MCL 287.321(a)] attacks a person and causes serious injury other th an death, the owner of the animal is guilty of a felony, punishable by imprisonment for not more than 4 years, a fine of not less th an $2,000.00, or community servic e work for not less than 500 hours, or any combinati on of these penalties.

MCL 287.321(a) defines “dangerous a nimal” in relevant part as f ollows:

a dog or other animal that bites or attacks a person, or a dog that bites or attacks and causes serious injury or death to another dog while the oth er dog is on the property or under the co ntrol of its owner.

After the preliminary examination, 2 defense counsel moved to dismiss the complaint. The district court denied the motion, explaining: “It comes dow n to what was in the mind of Ms. Olney and—and Mr. Ridge. So the question is did they genuinely and reasonably believe that the animal was safe around other people and animals. I think t hat’s the ultimate issue in the
case.” The district court went on to conclude that “there’s so me evidence here that they knew that there was a problem,” and determined that plaintiff “has m et [its] burden of some credible evidence, though I think [it] woul d have a hard time at trial.” The district cour t went on to find:

2 The district court held a preliminary examination hearing on F ebruary 9, 2016. At the close of proofs, the district court found probable cause to bind defenda nts over for trial. Thereafter, defense counsel filed a memorandum of law arguing that the pros ecution failed to establish its burden of proof. The district court then granted the prosecuti on’s motion to re-open proofs and heard additional testimony on March 11, 2016. At the close of that hearing, defense counsel moved to dismiss the complaint and the district court denied th e motion and bound defendants
over for trial.-5- I mean, . . . the dog had not bitten anybody. But . . . certa inly they had shown enough dangerous proclivity that . . . Mr. Ridge and Ms. Olney were . . . considering making a change. . . .

The burden in a preliminary examination is quite low. It’s ju st is there some evidence to support each ele ment. I’m not at all convince d that a jury would look at this as being something that these people should be socked with a felony. . . .

But there’s some evidence here t hat they knew that there was a problem because this is a dog that they probably loved and they were wi lling to take steps to get rid of the dog, to send it to a shelter. So they had to have some kind of knowledge that there was some dangerous element.

Based on these findings, the district court bound the case ove r for trial. Defendants then moved to quash the bind over in t he circuit court. The circuit court denied defendants’ motion, reasoning:

I believe here the evidence supports the justification for [th e district court’s] ruling, that the defe ndants should be bound over. Bas ed on a review of the record, the defendants were aware that the dog scared peopl e and had an aggressive disposition. The dog h ad exhibited aggressive behav ior, such as barking, running up and down the fence, making noise, biting . . . lawnmowers, tires and damaging the tire prior to the incident in question.

The circuit court entered a written order on June 27, 2016. D efendant filed applications with this Court for leave to appeal. This Court granted defend ants’ applications for leave to appeal and consolidated the appeals.

II. STANDARD OF REVIEW

We commence our analysis of thi s matter by observing that preli minary examinations are a creation of our Legislature, a nd therefore a statutory right. People v Yost , 468 Mich 122, 125; 659 NW2d 604 (2003). “[T]he preliminary examination has a dual function, i.e., to determine whether a felony was committed and whether there is probable ca use to believe the defendant
committed it.” Id . at 124-125; see also MCR 6.110(E). Probable cause requires e nough evidence to make a person of ordinary caution and prudence cons cientiously entertain a reasonable belief of the defendant’s guilt. Id . at 126. If it appears to the district court that there is probable cause to believe that a felony was committed and th at the defendant committed it, the court must bind the defendant over for trial. MCL 766.13; MCR 6.110(E). “A circuit court’s ruling regarding a motion to quash an information and the distr ict court’s decision to bind over a
defendant are reviewed to determine whether the district court abused its discretion in making its
decision.” People v Waltonen , 272 Mich App 678, 683; 728 NW2d 881 (2006). Significant to this case, we have previously stated that if the bind over deci sion entails a question of statutory interpretation, such as whether the alleged conduct falls withi n the scope of a penal statute, the issue of statutory interpretation is a question of law that we review de novo. Id . at 683-684. See-6- also, People v Stone , 463 Mich 558, 561; 621 NW2d 702 (2001); People v Hotrum , 244 Mich App 189, 191; 624 NW2d 469 (2000).

III. ANALYSIS

In their appeals, defendants make two arguments. 3 First defendants argue that plaintiff failed to introduce evidence at the preliminary examination suf ficient to support a finding that defendants maintained a dangerous animal under MCL 287.323. Ne xt, defendants argue that there was no evidence that they were aware that Roscoe was “a d angerous animal” as those terms are defined in MCL 287.321(a).

Defendants were charged under MCL 287.323(2), which provides a s follows:

If an animal that meets the definition of a dangerous animal i n [MCL 287.321(a)] attacks a person and causes serious injury other th an death, the owner of the animal is guilty of a felony, punishable by imprisonment for not more than 4 years, a fine of not less th an $2,000.00, or community servic e work for not less than 500 hours, or any combinati on of these penalties.

In relevant part, MCL 287.321(a) defines “dangerous animal” as “a dog or other animal that bites or attacks a person , or a dog that bites or attacks and causes serious injury or d eath to another dog while the other dog is on the property or under the control of its owner.” (Emphasis added).

In People v Janes , 302 Mich App 34; 836 NW2d 883 (2013), Judge MJ K ELLY wrote: “[T]he statute requires proof tha t the owner knew that his or h er animal was a dangerous animal within the meaning of the dangerous animal statute before the i ncident at issue.” Id . at 38. Judge MJ K ELLY went on to state: “[W]e find it unthinkable that the Legislatu re intended to subject law-abiding, well-inten tioned citizens to a possible fo ur-year prison term if, despite genuinely and reasonably believing their animal to be safe arou nd other people and animals, the
animal nevertheless harms someone.” Id . at 49. Accordingly, “the Legislature’s decision to limit an owner’s liability to situations in which an animal ‘th at meets’ the definition of a dangerous animal ‘attacks’ a person means that the prosecution must prove, in relevant part, that the animal has previously bitten or attacked a person.” Janes , 302 Mich App at 50.

3 Conversely, plaintiff’s central argument rests on its belief t hat the question of whether the dog was a “dangerous animal” under the statute was for the jury and not this Court to decide. However, this Court has made clear that “where the decision ent ails a question of statutory interpretation, i.e., whether the alleged conduc t falls within the scope of a penal statute, the issue is a question of law . . . .” See Waltonen , 272 Mich App at 683-684; quoting Stone , 463 Mich at 561; and Hotrum , 244 Mich App at 191.-7- Judge MJ K ELLY articulated that, to sustain a conviction under MCL 287.323(2) , the prosecution must prove the following elements:

(1) that [the defendant(s)] owned or harbored a dog or other an imal, (2) that the dog or other animal met the definition of a dangerous animal pr ovided under MCL 287.321(a) before and throughout the incident at issue, (3) that [the defendant(s)] knew that the dog or other animal met the definit ion of a dangerous animal within the meaning of MCL 287.321(a) before the incident at issue, and (4) that the animal attacked a person and caused serious injury other than death. [ Janes , 302 Mich App at 54.]

As agreed by the parties, the central issue in this case is wh ether plaintiff introduced evidence to support elements (2) and (3). To resolve that issu e, we must determine whether there was evidence that, prior to the attack on Flietstra, defendants ’ dog Roscoe met the statutory definition of “dangerous animal,” as defined in MCL 287.321(a). Janes , 302 Mich App at 50. As noted above, MCL 287.321(a) define s “dangerous animal” to me an:

a dog or other animal that bites or attacks a person , or a dog that bites or attacks and causes serious injury or death to another dog while the oth er dog is on the property or under the control of its owner. However, a dangero us animal does not include any of the following:

( i ) An animal that bites or attacks a person who is knowingly tre spassing on the property of the animal’s owner.

( ii ) An animal that bites or attacks a person who provokes or torm ents the
animal.

( iii ) An animal that is responding in a manner that an ordinary and reasonable person would conclude w as designed to protect a pers on if that person is engaged in a lawful activity or is the subject of an assault

.
( iv ) Livestock. (Emphasis added).

“ Our purpose when interpreting a statute is to determine and giv e effect to the Legislature’s intent. If the plain and ordinary meaning of a s tatute’s language is clear, we enforce it as written. This Court will not interpret statutes in a way that renders any part of the statute surplusage. People v Armstrong , 305 Mich App 230, 243; 851 NW2d 856 (2014). (Internal citations omitted). In interpreting and applying a s tatutory definition, our purpose is to “determine and give effect to the Legislature’s intent.” Id. “We begin by examining the plain language of the statute; where that language is unambiguous, we presume that the Legislature intended the meaning clearly ex pressed—no further judicial cons truction is required or permitted, and the statute must be enforced as written.” People v Barrera , 278 Mich App 730, 736; 752 NW2d 485 (2008).

Review of the plain language of MCL 287.321(a) inexorably lead s to the conclusion that an animal is a “dangerous animal” if it: (1) bites or attacks a person or (2) bites or attacks another dog while the other dog i s on the property of or under the control of its owner and causes-8- serious injury or death to the other dog. The statute also pro vides that a dangerous animal “does not include” the following:

( i ) An animal that bites or attacks a person who is knowingly tre spassing on the property of the animal’s owner.

( ii ) An animal that bites or attacks a person who provokes or torm ents the
animal.

( iii ) An animal that is responding in a manner that an ordinary and reasonable person would conclude w as designed to protect a pers on if that person is engaged in a lawful activity or is the subject of an assault

.
( iv ) Livestock.

In this case, it is undisputed that the victim was not a tresp asser onto defendants’ property, or that the victim provoked or tormented Roscoe. Sim ilarly it is undisputed that Roscoe was not protecting anot her person and the case did not i nvolve livestock. Also, there was no evidence that Roscoe previously bit or attacked another dog. Accordingly, the last remaining inquiry set forth in the statute is for the Court to determine whether there was evidence presented that, before the attack, Roscoe previously bit or attacked a person

.
The Legislature’s use of the coordinating conjunction “or” bet ween the verbs “bites” and “attacks” indicates that an animal can be a dangerous animal un der either alternative. See AutoOwners Ins Co v Stenberg Bros, Inc , 227 Mich App 45, 50; 575 NW2d 79 (1997) (explaining that “[t]he word ‘or’ generally r efers to a choice or alternati ve between two or more things.”). The words “and” and “or” “are not interchangeable and their str ict meaning should be followed when their accurate reading does not render the sense dubious a nd there is no clear legislative
intent to have the words or clau ses read in the conjunctive.” Id. (quotation omitted). In this case, reading the term “or” does not render the statute dubious or am biguous. Rather, in using the conjunction “or” the Legislature clearly indicated that an anim al is considered dangerous where (1) the animal bit a person without any further aggressive beha vior or (2) the animal attacked a person, which may not necessarily have included biting during t he attack.

The prosecution does not dispute that no evidence exists that Roscoe previously bit a person; therefore, resolution of the case turns on whether ther e was evidence to show Roscoe previously attacked a person and that defendants kne w of the attack.

The statutory scheme does not define the word “attack(s).” “W here, as here, the Legislature has not expressly defined terms used within a statu te, we may turn to dictionary definitions to aid our goal of construing those terms in accord ance with their ordinary and generally accepted meanings.” People v Morey , 461 Mich 325, 330; 603 NW2d 250 (1999). Merriam-Webster’s Collegiate Dictionary (11th ed) defines the verb “attack” to mean “to set upon or work against forcefully” and “to begin to affect or to act on injuriously.” The American Heritage Dictionary of the English Language (1996) defines the verb t o mean “[t]o set upon with violent force” and “[t] o begin to affect harmfully.”-9- Applying this definition to the evidence in the record exposes an absence of proof from which a trier of fact could conclude that Roscoe previously att acked a person. There exists no evidence that Roscoe set upon or worked against a person with v iolent force, or that the dog began to affect or act upon a person injuriously or harmfully. While the prosecution argues that Roscoe “attacked” other persons when he attacked the fence and lawnmower tires, this evidence only demonstrated that Roscoe attacked other objects , not that he attacked other people . To be considered a dangerous animal, t he statutory text requires a sh owing that the animal previously attacked a person, not that the animal threatened a person or a ttacked an object. Thus, Roscoe’s actions against the fence and the lawnmower were not synonymous to an attack against a person sufficient to render him a “dangerous animal” for purposes of M CL 287.321(a). Therefore, the
district court erred when it bound defendants over for trial. Similarly, the circuit court erred in affirming the district court when it held that there was eviden ce to support the bind over because
defendants were aware that Roscoe “scared people and had an agg ressive disposition.” 4 Under MCL 287.321(a), an animal is not deemed to be a “dangerous anim al” if it has previously frightened people or exhibited an “aggressive disposition.” Ra ther, as discussed above, in this case the statute requires proof that the animal previously acte d in a certain manner—i.e. that it bit or attacked a person. 5 MCL 287.321(a). To incorporate other forms of aggressive beh avior into the statute would be to imprope rly expand the statute beyond th e scope of its plain language. See Bay Co Prosecutor v Nugent , 276 Mich App 183, 189; 740 NW2d 678 (2007) (noting that “[w]e may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself” (q uotation marks and citation omitted)).

In sum, because plaintiff did not introduce any evidence to pr ove that Roscoe was a “dangerous animal,” as that term is defined under MCL 287.321(a ), plaintiff failed to introduce sufficient evidence to support the second and third elements ne cessary for a showing of probable cause that defendants violated MCL 287.323(2)—i.e. that defenda nts owned a dangerous animal at the time of the attack in this case, and that defendants kne w that the animal was dangerous within the meaning of MCL 287.321(a). Janes , 302 Mich App at 54. The d istrict court therefore abused its discretion in binding defendants over for trial in t hat it erred as a matter of law in applying MCL 287.321(a). See People v Bynum , 496 Mich 610, 623; 852 NW2d 570 (2014) (noting that a trial court abus es its discretion when it errs a s a matter of law.)

4 The circuit court correctly set f orth the standard of review w hen acting as an appellate court but
did not articulate the standard o f review when considering a qu estion of statutory interpretation. See, Waltonen , 272 Mich App at 683-684.

5 We acknowledge, though not at issu e in this case, that a dog m ay meet the statutory definition or a dangerous animal by other m eans specifically set forth in MCL 278.321(a).-10- Reversed and remanded for entr y of an order quashing the bind- overs. We do not retain jurisdiction.

/s/ Stephen L. Borrello
/s/ Kurtis T. Wilder
/s/ Brock A. Swartzle