IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 49878
STATE OF IDAHO, )
) Filed: June 8, 2023
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
)
JENNIFER L. WENK, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Gooding
County. Hon. Rosemary Emory, District Judge. Hon. Casey U. Robinson,
Magistrate.
Decision of the district court, on intermediate appeal from the magistrate court,
reversing order dismissing citation for harboring at-risk dog, affirmed.
Massingill Law, PA; Eben Massingill, Weiser, for appellant.
Hon. Raúl R. Labrador, Attorney General; Kenneth K. Jorgensen, Deputy Attorney
General, Boise, for respondent.
________________________________________________
LORELLO, Chief Judge
Jennifer L. Wenk appeals from the decision of the district court, on intermediate appeal
from the magistrate court, reversing an order granting her motion to dismiss a citation for harboring
an at-risk dog. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Law enforcement received a report from a woman that a dog attacked her. A responding
officer arrived at the scene and observed a loose German Shepard behaving aggressively. The
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officer recognized the dog as belonging to Wenk.1 The victim reported that she was walking to
her car when the dog came out and began barking. The dog then lunged at the victim and attempted
to bite her abdomen. The dog did not puncture the victim’s skin due to her loose clothing, but she
had a mark on her right side from the attempted bite. Wenk was located and claimed her dog
escaped after someone kicked down her apartment door. Law enforcement placed the dog with
animal control and issued Wenk a misdemeanor citation for maintaining an “at-risk dog” in
violation of I.C. § 25-2810.
Wenk filed a motion to dismiss the citation and a motion for immediate release of the dog.
The State filed an objection to both motions. The magistrate court held a hearing on the motion to
dismiss. At the hearing, Wenk argued that the citation should be dismissed because, “in order for
there to be a crime, there has to have been a previous court order that states that the dog is at-risk
or dangerous” and that there was no such order entered. The State argued that I.C. § 25-2810 does
not require any prior court order. The State also requested the magistrate court enter an order
declaring the dog at-risk. The magistrate court granted the motion to dismiss on the basis that
there must be a prior court order declaring the dog dangerous or at-risk before any imposition of
criminal liability under I.C. § 25-2810. The magistrate court also granted the State’s request and
declared Wenk’s dog at-risk. The State appealed the dismissal of the misdemeanor citation,
arguing that the dismissal was error. Wenk cross-appealed, arguing that the order declaring the
dog at-risk was error. The district court reversed both orders. It held that the magistrate court
erred in granting Wenk’s motion to dismiss because I.C. § 25-2810 does not require a prior court
order declaring a dog dangerous or at-risk to impose criminal liability. The district court also held
that the magistrate court erred in declaring Wenk’s dog at-risk because Wenk was not provided a
meaningful opportunity to challenge the order. Wenk appeals.2
1
Law enforcement had contact with Wenk and her dog on three previous occasions: (1) in
August 2019, when the dog was accused of attacking a woman; (2) in September 2020, when
Wenk was cited for having a dog at-large; and (3) in September 2021, when her dog was accused
of attacking another dog.
2
The district court’s reversal of the magistrate court’s order declaring Wenk’s dog at-risk is
not challenged by Wenk or the State. Accordingly, we do not address whether the order was
appropriate.
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II.
STANDARD OF REVIEW
For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate division, we review the magistrate court record to determine whether there is substantial
and competent evidence to support the magistrate court’s findings of fact and whether the
magistrate court’s conclusions of law follow from those findings. State v. Korn, 148 Idaho 413,
415,
224 P.3d 480, 482 (2009). However, as a matter of appellate procedure, our disposition of
the appeal will affirm or reverse the decision of the district court. State v. Trusdall,
155 Idaho 965,
968,
318 P.3d 955, 958 (Ct. App. 2014). Thus, we review the magistrate court’s findings and
conclusions, whether the district court affirmed or reversed the magistrate court and the basis
therefor, and either affirm or reverse the district court.
This Court exercises free review over the application and construction of statutes. State v.
Reyes, 139 Idaho 502, 505,
80 P.3d 1103, 1106 (Ct. App. 2003).
III.
ANALYSIS
Wenk argues that the district court erred when it reversed the magistrate court’s dismissal
of her misdemeanor citation because the district court incorrectly interpreted I.C. §§ 25-2810 and
25-2811. Specifically, Wenk asserts that a previous court order declaring a dog dangerous or
at-risk is a condition precedent to imposing criminal liability under I.C. § 25-2810 and that
imposing criminal liability without a previous court order renders the statute an unlawful strict
liability crime. Wenk also claims, in the alternative, that I.C. §§ 25-2810 and 25-2811 are
unconstitutionally vague. The State responds that I.C. § 25-2810 does not require the existence of
a prior court order for a person to be found guilty of maintaining an at-risk dog. Additionally, the
State contends that I.C. § 25-2811 is inapplicable to Wenk because her dog was not subject to any
previous court order. We agree with the district court and hold that I.C. § 25-2810 is
constitutionally valid and a prior order declaring the dog dangerous or at-risk is not an element of
I.C. § 25-2810.
Where the language of a statute is plain and unambiguous, this Court must give effect to
the statute as written without engaging in statutory construction. State v. Burnight, 132 Idaho 654,
659,
978 P.2d 214, 219 (1999); State v. Escobar,
134 Idaho 387, 389,
3 P.3d 65, 67 (Ct. App.
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2000). The language of the statute is to be given its plain, obvious, and rational meaning.
Burnight, 132 Idaho at 659,
978 P.2d at 219. If the language is clear and unambiguous, there is
no occasion for the court to resort to legislative history or rules of statutory interpretation.3
Escobar,
134 Idaho at 389,
3 P.3d at 67.
The Idaho Dangerous and At-Risk Dogs Act provides that a person commits the crime of
maintaining a dangerous or at-risk dog if the person owns, possesses, or harbors a dangerous or
at-risk dog. I.C. § 25-2810(1). The citation filed in this case charged Wenk with a violation of
I.C. § 25-2810 based on an at-risk dog. An at-risk dog includes “any dog that without justified
provocation bites a person without causing a serious injury.” I.C. § 25-2810(4)(a). Wenk contends
there are two prerequisites to liability under I.C. § 25-2810(1): (1) a court must have previously
found the dog that forms the basis of liability to be dangerous or at-risk, and (2) the person who
owns, possesses, or harbors a dog previously designated as dangerous or at risk must fail to comply
with an order issued pursuant to I.C. § 25-2810(7). The plain language of the statute does not
support Wenk’s arguments.
The only requirements for liability under I.C. § 25-2810 based on an at-risk dog are that
the dog satisfies the definition of “at-risk dog” and the person charged with violating the statute
owns, possesses, or harbors the dog. Nothing in the statute requires a prior judicial determination
that the dog is at-risk as a prerequisite to liability. While I.C. § 25-2810(7) authorizes a
discretionary order imposing restrictions on a dog the court has found is dangerous or at-risk, the
existence of such an order is not an element of the offense. See I.C. § 25-2810(1). Rather, a
discretionary order issued pursuant to I.C. § 25-2810(7) can form the basis of a defense to liability
under I.C. § 25-2810(1) if the person charged is in compliance with the provisions of any such
order. See I.C. § 25-2810(1) (stating that “a person commits the crime of maintaining a dangerous
or at-risk dog if the person owns, possesses, or harbors a dangerous dog or at-risk dog . . . unless
otherwise in compliance with the provisions of an order pursuant to subsection (7)”) (emphasis
added). But, the potential defense does not excuse liability in the first instance.
3
Because we conclude the language of I.C. § 25-2810 and I.C. § 25-2811 is clear and
unambiguous, we need not address Wenk’s legislative history arguments.
4
This interpretation is consistent with the enhanced penalty provisions set forth in I.C. § 25-
2811, which provide for greater financial penalties for violations of I.C. § 25-2810(1) when the
offense is committed “with knowledge of an order by a court issued pursuant to the provisions of
th[e] act.” A violation of I.C. § 25-2810(1) irrespective of the existence and knowledge of an order
issued pursuant to I.C. § 25-2810(7) is a misdemeanor. I.C. § 25-2810(2). Misdemeanors are
generally punishable by up to six months in jail or by a fine not to exceed $1000, or both. See I.C.
§ 18-113(2). However, the penalty for a first violation of I.C. § 25-2810 where the person has
knowledge of an I.C. § 25-2810(7) order is punishable by a fine of not less than $200 and not more
than $5000. In other words, a violation of I.C. § 25-2810(1) without knowledge of an I.C.
§ 25-2810(7) order may result in no fine or a fine up to $1000, but a violation of I.C. § 25-2810(1)
with knowledge of such an order requires a minimum fine of $200 with a potential fine up to
$5000, i.e., $4000 more than the maximum fine for a violation without knowledge of an I.C.
§ 25-2810(7) order.
Wenk contends that it is “unreasonable and absurd” to read the penalty provisions of I.C.
§ 25-2811 as additional to the general misdemeanor penalty in I.C. § 18-113(2) because doing so
“would leave any citizen wondering why the legislature would punish an innocent dog owner more
harshly than a person who the court found harbors a dangerous or at[-]risk dog.” There are several
flaws in this argument. First, it presupposes the accuracy of Wenk’s argument that a prior order
is an element of I.C. § 25-2810; it is not. Second, no punishment would be imposed on an
“innocent dog owner,” so a comparison between an “innocent dog owner” and one who maintains
a dangerous or at-risk dog is irrelevant.4 Third, as Wenk acknowledges, this Court construes the
4
Wenk’s “innocent dog owner” argument appears to be based on the assertion that a dog
owner is “innocent” because, pursuant to common law, all dogs are presumptively harmless and,
under her interpretation of I.C. § 25-2810, the presumption remains until a court enters an order
stating otherwise, i.e., designating the dog dangerous or at-risk. In support of her common-law
argument, Wenk relies on Braese v. Stinker Stores, Inc., 157 Idaho 443, 445,
337 P.3d 602, 604
(2014), which in turn relies on 4 Am. Jur. 2d Animals § 75 (2007) for the proposition that, “under
common law, all dogs, regardless of breed or size, are presumed to be harmless domestic animals.”
As the same source explains, however, this presumption “can be overcome by evidence of a known
vicious or dangerous propensity of the particular dog.” 4 Am. Jur. 2d Animals § 76 (2018). “The
owner or keeper of a dog who knows of any vicious or dangerous propensity of the dog is required
to use reasonable care in those circumstances to prevent the animal from causing injury.” Id.
Moreover, “the owner of a dog is expected to use reasonable care to prevent injury that might
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language of a statute as written. See Burnight, 132 Idaho at 659,
978 P.2d at 219. To the extent
one believes an unambiguous statute is patently absurd or the policy behind it unsound or unwise,
the power to correct it is legislative, not judicial. State v. Montgomery,
163 Idaho 40, 44,
408 P.3d
38, 42 (2017). The plain introductory language of I.C. § 25-2811 indicates the penalties described
therein are predicated on violations by “persons with knowledge of an order by a court issued
pursuant to the provisions of this act.” If I.C. § 25-2810 is violated without such an order, then,
as noted, the violation is a misdemeanor subject to the misdemeanor penalties in I.C. § 18-113(2).
That Wenk believes “any citizen” would “wonder” about the difference between the two does not
mean the statute is vague or ambiguous.
Wenk also contends that interpreting I.C. § 25-2810 without requiring a prior court order
designating a dog as dangerous or at-risk as an element of the offense will result in strict liability
upon an individual who maintains such a dog. According to Wenk, without the existence of a prior
order and knowledge of that order, there is no scienter requirement associated with I.C. § 25-2810
such that possession of “any dog” would make someone liable under the statute. Wenk is incorrect.
The scienter requirement in I.C. § 25-2810 is knowingly owning, possessing, or harboring a dog
that is dangerous or at-risk as defined in I.C. § 25-2810(4). See I.C. § 18-114 (requiring a union
of act and intent or criminal negligence in every crime or public offense); see also State v. Stiffler,
114 Idaho 935, 937,
763 P.2d 308, 310 (Ct. App. 1988) (explaining the “‘intent’ mentioned in
section 18-114 is merely the knowing or conscious performance of an act, not an evil motive or
criminal intent”). A person may knowingly own, possess, or harbor such a dog without a prior
court order designating the dog as dangerous or at-risk. There is no dispute that Wenk knowingly
owned her dog. Moreover, any claim by Wenk that she did not know her dog may be dangerous
or at-risk is belied by the record given two of the three prior contacts law enforcement had with
Wenk and her dog were based on accusations that Wenk’s dog attacked another woman and
attacked a dog.
Because we conclude that I.C. § 25-2810 is clear and unambiguous, Wenk’s claim that the
statute is void for vagueness necessarily fails. See State v. Martin, 148 Idaho 31, 36,
218 P.3d 10,
result from natural propensities of dogs.”
Id. To the extent necessary, the Idaho Dangerous and
At-Risk Dogs Act is consistent with the common law.
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15 (Ct. App. 2009) (concluding statute not unconstitutionally vague because it clearly set forth
prohibited conduct). For the same reason, we need not apply the rule of lenity. See State v. Jones,
151 Idaho 943, 947,
265 P.3d 1155, 1159 (Ct. App. 2011) (stating rule of lenity applies to
ambiguous criminal statutes). The district court did not err in reversing the magistrate court’s
dismissal of Wenk’s misdemeanor citation for violating I.C. § 25-2810(1).
IV.
CONCLUSION
Idaho Code Section 25-2810 does not require a prior court order declaring the dog
dangerous or at-risk as a prerequisite to criminal liability. Accordingly, the district court’s decision
on intermediate appeal reversing the magistrate court’s order dismissing Wenk’s citation for
maintaining an at-risk dog is affirmed.
Judge GRATTON and Judge Pro Tem MELANSON, CONCUR.
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