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State ex rel. Montgomery v. Brian

Court of Appeals of Arizona, First Division

May 24, 2018

STATE OF ARIZONA ex rel. WILLIAM MONTGOMERY, Maricopa County Attorney, Petitioner,
v.
THE HONORABLE MARK H. BRAIN, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, SHUNDONG HU, Real Party in Interest.

          Petition for Special Action from the Superior Court in Maricopa County No. CR2017-100746-001 The Honorable Mark H. Brain, Judge

          Maricopa County Attorney's Office, Phoenix By Daniel Strange Counsel for Petitioner

          The Law Offices of David Michael Cantor, PC, Phoenix By Michael Alarid, III Counsel for Real Party in Interest

          Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge Paul J. McMurdie and Judge Randall M. Howe joined.

          OPINION

          BROWN, Judge

         ¶1 In this special action, we hold that a person who uses a dangerous instrument in committing an animal cruelty offense may not be sentenced as a dangerous offender. Because we reject the State's argument that it may pursue enhancement of an animal cruelty crime as a dangerous offense, we accept special action jurisdiction but deny relief.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 Police responded to a report of animal cruelty. A witness stated she heard a dog crying and went to her apartment complex's courtyard to see where the noise was coming from. She observed Shundong Hu in his apartment using a rod to hit a dog that was inside a pet enclosure. When police entered Hu's apartment, they saw a puppy with a bleeding mouth. The dog was taken to an animal care center for treatment and the medical records indicated the dog suffered "[c]ranial trauma." Police obtained a warrant the next day to search Hu's apartment and discovered a metal rod under the bed that "appeared to have blood and dog hair on it."

         ¶3 As relevant here, the State charged Hu with intentionally or knowingly subjecting an animal to cruel mistreatment, a class 6 felony, in violation of Arizona Revised Statutes ("A.R.S.") section 13-2910(A)(9). The State also alleged the crime was a dangerous offense because it "involved the discharge, use, or threatening exhibition of a pole and/or rod, a deadly weapon or dangerous instrument, in violation of A.R.S. §§ 13-105 and 13-704."

         ¶4 Hu moved to dismiss the dangerousness allegation, asserting that as a matter of law "a dangerous offense cannot be committed against an animal." He did not dispute that the metal rod could constitute a dangerous instrument; instead, he argued the legislature's inclusion of the phrase "on another person" in the statutory definition of dangerous offense, A.R.S. § 13-105(13), means a dangerous offense may be committed only against a person, not an animal. The State countered that the plain language of § 13-105(13) indicates that a sentencing enhancement based on the use of a dangerous instrument is not limited to circumstances involving "another person."

         ¶5 Focusing on the definition of dangerous instrument, the superior court granted Hu's motion, explaining as follows:

There are two ways to interpret the dangerous instrument definition: (1) it could be limited to items being used in a way readily capable of causing death or serious physical injury to a person; or (2) it could encompass items being used in a way readily capable of causing death or serious physical injury to anything. Under the latter interpretation, poisoning someone's $1000 exotic fish tank with a gallon of bleach would constitute the crime of criminal damage, a class 6 dangerous felony. Surely the legislature did not intend such results.

         ¶6 The State petitioned for special action, asserting the superior court erred by dismissing the allegation of dangerousness. We have accepted jurisdiction because the State has no adequate remedy on appeal and the petition presents a legal issue of statewide importance. See Ariz. R.P. Spec. ...


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