Oregon Appeals Court overturns dog bite conviction

OREGON -- It may have been reckless, but it wasn't an assault when a woman exposed her 10-year-old daughter to an aggressive dog that bit her twice -- once on the neck and once in the face, which required three stitches.

The Oregon Court of Appeals made the finding this week when it reversed the criminal mistreatment conviction against Elesia English.

English's daughter was petting the sleeping dog on a summer day in 2011 when it awoke and bit her neck, puncturing the skin and drawing blood. Later the girl was stroking the dog as they rode in a car together when the animal bit her face, splitting her lip and scratching her nose and cheek. The wound required a trip to the hospital.

The mother and her boyfriend were subsequently convicted of first-degree criminal mistreatment, a felony that requires a person to "knowingly engage in assaultive conduct."

Washington County prosecutors argued at trial that English knew her boyfriend's dog had a propensity to bite and that knowledge met the requirements of first-degree criminal mistreatment. Circuit Judge Suzanne Upton agreed and found English guilty on two counts -- one for each bite.

According to court records, the judge sentenced English to about two years in prison.

The dog had a history of biting, at least when provoked. Earlier that summer, a 3-year-old boy needed 12 stitches after the dog bit his face. And when the same 10-year-old girl accidentally stepped on its tail, the dog chomped down on her arm. 

But on appeal, the mother argued "keeping a dog that has a history of biting children in proximity to a child is not an assaultive act."

Attorneys for the state disagreed and contended that English knew that not getting rid of the dog would lead to her daughter's injury. That act was a failure of her legal obligation to care for her child, prosecutors argued, and thereby constituted an assault.

The appeals court, however, pointed out the obvious: Mom didn't directly inflict an injury. She exposed the girl to a dog -- "an intervening actor" -- that caused the wounds.

At most, the court said in an opinion released Wednesday, the behavior was reckless. But it did not rise to the level of criminal mistreatment.

"To prove that defendant knew her conduct was assaultive, the state would have needed evidence that defendant knowingly used the dog to engage in assaultive conduct," the court wrote in its ruling.

The mother's boyfriend, Kevin Faill, also appealed his conviction, which is pending.

(Oregon Live - Feb 27, 2015)