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Roxy’s fate debated in court

December 19, 2013
The Daily News

By NIKKI YOUNK

Staff Writer

IRON MOUNTAIN - The court case regarding a dog that violated the city of Iron Mountain's vicious dog ordinance in July by biting a woman continues.

Article Photos

Nikki Younk/Daily News Photo
Almost Home Animal Shelter Manager Diane Luczak, left, testifies during a court hearing Wednesday regarding a dog that violated Iron Mountain’s vicious dog ordinance. Also pictured, from left, are Iron Mountain Police Department Officer Jeff Solka, Dickinson County District Court Judge Christopher Ninomiya, Iron Mountain City Attorney Michael Celello, and defense attorney Michelle Radloff.

Although Dickinson County District Court Judge Christopher Ninomiya re-affirmed his order to euthanize the two-year-old pit bull, boxer, shepherd mix known as Roxy during a hearing on Wednesday, defense attorneys have already filed an appeal of his decision.

In response to the appeal, Dickinson County Circuit Court Judge Mary B. Barglind issued an order prohibiting Roxy from being destroyed before the next court hearing, which is scheduled for Jan. 2.

The case stems from a July 12 incident in Iron Mountain.

According to the police report in the case, Roxy bit a woman who was walking in the alley near the 300 block of West Ludington Street. The woman went to Dickinson County Memorial Hospital's emergency department for treatment of the bite wound.

Officers who responded to the incident reported that Roxy was acting aggressive toward them, and that the leash she was on reached well into the alleyway. They determined that she was indeed vicious.

Following a district court hearing in August, Judge Ninomiya ordered that Roxy be destroyed according to the city's vicious dog ordinance. Since Roxy was pregnant at the time of that order, she was not to be euthanized until she gave birth to her puppies in late September or early October.

During that time period, Roxy's case attracted numerous supporters through online petitions and social media websites. The case also prompted the Iron Mountain City Council to amend the vicious dog ordinance.

Attorney Deborah Cummings-Curran, who began representing Roxy's owner Vicki Tavonatti, filed an appeal of Judge Ninomiya's original order on Oct. 11. In response to the appeal, Barglind signed an order prohibiting the destruction of Roxy until further order of the court.

Judge Barglind then remanded the case back to district court.

During the new hearing in district court on Wednesday, attorney Michelle Radloff with the Lexus Project joined Cummings-Curran and Tavonatti. Radloff explained that the Lexus Project is a non-profit group that arranges for pro-bono attorneys to represent dogs that are "unjustly on death row" and for placement of the dogs if they are set free. She said that a sanctuary in Texas has already offered to take Roxy.

Judge Ninomiya allowed Radloff's involvement based on her claim that the Lexus Project is now Roxy's owner.

Representing the city of Iron Mountain was attorney Michael Celello. He informed the court that he would be proceeding under the city's vicious dog ordinance that was in effect at the time of the bite incident, not the newly-amended ordinance.

Before testimony began, Radloff brought forth several motions. They included:

-A motion alleging that Celello had a conflict of interest, since his brother David had represented Tavonatti in a personal injury case in 2003. Judge Ninomiya found that it was not a significant conflict of interest, as Celello had nothing to do with her case. He denied the motion.

-A motion for Judge Ninomiya to recuse himself from the case because he had previously made a determination that Roxy was vicious. Judge Ninomiya said that whatever he said in the previous hearing was a finding of fact, not a personal opinion. Radloff withdrew the motion.

-A motion regarding the legality of the city's vicious dog ordinance. Radloff felt that the local law takes away rights granted in the state statute. Judge Ninomiya said that the city's ordinance is clear and includes detailed definitions. He denied the motion.

The prosecution's case then began with one of the responding officers, Jeff Solka of the Iron Mountain Police Department, taking the stand.

Solka said that Roxy was ready to attack anyone who came near her that day, and that he had his Taser at the ready the entire time he was responding to the incident.

In response to his testimony, Radloff asked if Solka actually saw the bite mark on the victim. He said that he did see teeth marks and what appeared to be blood. He also told Radloff that he did not recall seeing any water outside for Roxy, but he was not necessarily looking for it.

Radloff then proceeded to call witnesses.

First on the stand was Diane Luczak, manager of the Almost Home Animal Shelter.

Luczak testified that Roxy has been housed at the shelter since July 19. In that time period, Luczak said that she has gotten to know Roxy quite well.

She added that since she is responsible for euthanizing vicious animals at the shelter, she always runs tests to provoke them and make sure they are indeed vicious. These tests include taking away food and bones, petting, and seeing how the animal reacts to other animals like cats. According to Luczak, none of these tests caused Roxy to act aggressively.

"She's been, for five months, steady as a rock," said Luczak.

Radloff entered photos of Roxy into the court record as exhibits. All showed Roxy in various situations at the shelter.

With Luczak's supporting testimony, Radloff alleged that the photos showed provocation. They showed Roxy in a cage, Roxy in a room with cats, and Roxy meeting strangers, she said.

None of the photos showed Roxy acting in an aggressive manner, she added.

Celello pointed out that although people or cats may have been out of frame, they are not actually depicted in the photos. He added that Roxy's behavior at the shelter has no relevance to the issue at hand, which was Roxy's behavior on July 12.

Radloff also had Luczak look at a photo of the victim's bite wound. Luczak said that the injury looked more like a scrape than a puncture. She said that she would not guess that it was a dog bite if she was not already familiar with the case.

However, prompted by Celello, she added that she would not doubt the victim's claim that it was a bite.

Radloff then called a potential expert witness, Renee Dahms, to the stand.

Dahms said that she is a canine behaviorist who owns a training and behavior facility in the Stevens Point, Wis. area. She explained that the Lexus Project found her through social media and had asked her to testify on Roxy's behalf.

Furthermore, Dahms said that she would testify that she believed Roxy was provoked on July 12 by the victim trespassing. She said that dogs do not understand human boundaries, like alleys, and that Roxy would have considered anyone within her leash's reach a trespasser.

Celello objected to Dahms testifying as a expert witness, since she had never testified as an expert witness before and she only had an 18-month degree in dog behavior. He pointed out that Dahms herself said that there are two specific certifications above her own.

Judge Ninomiya agreed with Celello and did not allow Dahms to testify.

Finally, Cummings-Curran called Tavonatti to the stand.

Based on Tavonatti's claims that officers did not respond the same day as the bite incident, that officers used a Taser on her dog, and that she could not initially recall ever going to talk to Celello at his office, Celello questioned her competency to testify.

Celello then recalled Solka, who testified that the department's Tasers internally record all instances of use. He said that there was absolutely no Taser use on July 12.

For closing arguments, Radloff pointed out that there were no witnesses to the bite. Since Tavonatti had heard Roxy yelping, there could have been some provocation, she argued.

Radloff and Cummings-Curran also noted that July 12 was a hot day, and Roxy was pregnant at the time.

"She doesn't have the same rights as a person, but this is still taking a life," said Radloff.

Celello felt that he met the burden of proof for the case by showing that a bite occurred and that it was unprovoked. Statements from the victim, testimony from Solka, and photographic evidence of Roxy's leash extending into the alleyway were all supporting evidence, he said.

Judge Ninomiya agreed that it was an unprovoked attack. He said that although the defense had theories about the heat and Roxy's pregnancy being provoking factors, the city ordinance does not allow him to consider those options in his decision. Neither could he consider Roxy's behavior since the bite incident.

"A plain reading of the ordinance doesn't allow the court to consider extraneous information," he said.

Judge Ninomiya's order was to have Roxy destroyed within 48 hours - at about 12:40 p.m. Friday - and to issue a $500 fine to Tavonatti.

The appeal staying his order was filed later Wednesday afternoon.

Nikki Younk's e-mail address is nyounk@ironmountaindailynews.com.

 
 

 

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