State v. Domenech

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NOT DESIGNATED FOR PUBLICATION

No. 114,960

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHANOC DOMENECH,
Appellant.


MEMORANDUM OPINION

Appeal from Lyon District Court; JEFFRY J. LARSON, judge. Opinion filed January 13, 2017.
Affirmed.

Rick Kittle, of Kansas Appellate Defender Office, for appellant.

Carissa E. Brinker, assistant county attorney, Marc Goodman, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before MALONE, C.J., GREEN and LEBEN, JJ.

Per Curiam: Chanoc Domenech was convicted in a nonjury trial of reckless
aggravated battery under K.S.A. 2015 Supp. 21-5413(b)(2)(B). His conviction stemmed
from serious injuries caused by his dog to an individual working in his home. On direct
appeal, Domenech contends that the evidence was insufficient to show that his conduct
was reckless since no substantial and unjustifiable risk was ever demonstrated. He further
contends that even if a risk existed, the evidence presented at the bench trial failed to
show that he unreasonably disregarded this risk. Finding no merit in Domenech's
contentions, we affirm.
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In 2014, Chanoc Domenech lived in Americus, Kansas, with his significant other,
Cheryle Hardy. Hardy suffered from a medical condition that caused her to have seizures.
Hardy's seizures ranged in severity from mild to grand mal. A grand mal seizure would
result in Hardy shaking violently. Hardy suffered between three and seven seizures per
month. Because Domenech was employed as an over-the-road truck driver, he hired
home health care workers to care for Hardy while he was working. One of the workers,
Lisa Gardner, was hired to assist Hardy when she was having seizures.

During Gardner's time as an assistant to Hardy, Domenech owned a pit bull named
King. King was a muscular dog with large jaws. Domenech had a "Beware of Dog" sign
on his front door. King was very protective of Domenech's family, a trait that Domenech
enjoyed. King was especially protective of Hardy when she had seizures. Domenech
himself had been bitten several times while Hardy was having seizures. He admitted that
King was difficult to control during Hardy's seizures. King was also aggressive towards
other animals. King twice fought a neighbor's dog that entered Domenech's yard. King
also attacked another one of Domenech's dogs on two separate occasions. The second
attack resulted in the other dog being euthanized.

Gardner originally had concerns about working around King, but she eventually
grew comfortable with King. Gardner's attitude toward King changed after he bit her
foot. King bit through Gardner's shoe and into one of her toes while Hardy was having a
seizure. Gardner was able to pull her foot out of the shoe and get away from King.
Domenech was made aware of this incident. As a result of King biting Gardner's shoe,
Gardner requested that Domenech buy a muzzle for King. Domenech complied and
purchased a muzzle. When the muzzle was not being used, Gardner asked that King be
put in another room or taken outside while she worked. Domenech instructed Hardy to
put King in a separate room or outside in his dog pen if Gardner was going to be
working. Domenech instructed Hardy to put the muzzle on King when he was in the
house with Gardner.
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On July 28, 2014, Gardner was working in the Domenech home. Gardner noticed
that Hardy was going into a seizure. Hardy was having a grand mal seizure. Grand mal
seizures have the potential to cause serious damage. Gardner reached over to make sure
Hardy was okay, but King used his head to knock her hand away. The muzzle that
Domenech had purchased for King was broken and had not been used for nearly a month.
Hardy's shaking then caused her to slide off of the couch and onto King, who was lying
on the floor beneath her. King began to bite Hardy's legs and buttocks. Gardner was able
to pull King away from Hardy. King then pulled Gardner to the ground and bit her arms
and feet.

When emergency responders arrived, there were pools of blood on the floor, King
was still being very aggressive, including growling, barking, and showing his teeth in a
vicious manner. Ultimately, King had to be subdued with a Taser and a catchpole.
Gardner had suffered major tissue damage to both her lower and upper extremities. She
had also suffered significant blood loss. Gardner was transported by helicopter to Topeka
for care. A helicopter is often used to transport individuals with life-threatening injuries.
When the attack occurred, Domenech was working. He was approximately 200-250 miles
from home.

Domenech was charged with one count of aggravated battery: reckless bodily
harm, in Lyon County, Kansas. Following a bench trial, the judge found Domenech
guilty of reckless aggravated battery under K.S.A. 2015 Supp. 21-5413(b)(2)(B). The
trial judge noted that most of the facts leading to his determination were not in dispute. In
support of his finding of guilt, the trial judge stated the following:

"As indicated by the arguments, I think everybody agrees that what this case really comes
down to is recklessness, and has the State proved beyond a reasonable doubt that the
defendant's actions or inactions, as it may be, were reckless?

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"The legislature has set forth what the definition of 'reckless' should be in K.S.A.
21-5202(j). It reads as follows: . . . 'A person acts recklessly or is reckless, when such
person consciously disregards a substantial and unjustifiable risk that circumstances exist
or that a result will follow, and such disregard constitutes a gross deviation from the
standard of care which a reasonable person would exercise in the situation.' That's the
definition I'm working with.

"There are several facts that weighed heavily on my decision here today. We
have a situation where King was aggressive towards another animal, in my judgment,
unprovoked on two occasions. That animal had to be euthanized as a result of the last
altercation between King and [another dog]. That, in and of itself, put the defendant on
some level of notice that King had the propensity to be violent, at least towards other
animals.

"The rest of the evidence that we have in this case that goes towards this issue is:
The testimony from the victim in this case that she had been bitten on the foot by King on
a prior occasion; that the defendant, apparently at that time, recognized there was some
issue relating to King because there was a discussion that culminated in the defendant
giving directions that the dog be muzzled or placed in another room when [Hardy] would
have seizures. If that's all we had, the Court would conclude that Mr. Domenech's actions
were not reckless; however, the last phrase causes the Court some reason for pause. The
last phrase in the definition is: 'which a reasonable person would exercise in this
situation,' and the situation includes the reason why the victim was even at the home. The
reason she was there was to take care [of Hardy].

"There was ample testimony that whenever [Hardy] would have a seizure, King
had developed—I shouldn't say a practice—had gotten to the point where he would
interfere with the very purpose of [Gardner] being there and that was to care for . . .
[Hardy]. Oftentimes, it wasn't that big of a deal. Other care providers were able to deal
with it simply by talking to King and telling King to lay down or get out of the way. For
whatever reason, [Gardner], in this case, was not able to deal with King in that manner. I
think this was something that was recognized by the defendant; hence, buying the muzzle
and putting other safeguards in place. But when you consider what occurs when
somebody's having a grand mal seizure, how chaotic that can be, and how problematic it
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would be to deal with such a person when there is an 80- to 100-pound Pit Bull guarding
that person and, in this case, beginning to bite the victim of the seizure, that in this
situation, we have gone past what a reasonable person would do; therefore, I find the
defendant guilty."

On June 30, 2015, Domenech was sentenced to 18 months of probation with an
underlying prison term of 10 months and 12 months of postrelease supervision. At the
sentencing hearing, the judge spoke on the severity of Gardner's injuries as a result of
being attacked by King:

"I know at the time of trial there was a stipulation with regard to the injuries and
my concern is that when this case goes up on appeal that that stipulation will not do
justice to the record as to the extent of the injuries. The extent of the injuries helps one
understand the nature of the recklessness in a much greater degree. All we had was the
description of the officers and ambulance when they arrived and there was blood all over.
My observation of the victim, when she testified, was, it was even difficult for her to get
to the witness stand and she was not using her arm, could barely even bend her arm
because of the injuries she'd received in [Domenech's] home, as [his] employee . . .
because of the animal that [he] chose to keep, knowing that that animal had a prior
history of attacking other animals unprovoked."

Whether Sufficient Evidence Exists to Sustain Domenech's Conviction for Reckless
Aggravated Battery Under K.S.A. 2015 Supp. 21-5413(b)(2)(b)

When reviewing whether there was sufficient evidence to support a conviction in a
criminal case, the appropriate standard is whether after reviewing all evidence in a light
most favorable to the prosecution an appellate court is convinced that a rational factfinder
could have found the defendant guilty beyond a reasonable doubt. State v. Laborde, 303
Kan. 1, 6, 360 P.3d 1080 (2015). In determining whether there is sufficient evidence to
support a conviction, an appellate court generally will not reweigh the evidence or the
credibility of witnesses. State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074 (2016). A
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defendant's conviction will only be reversed in rare cases where the testimony is so
incredible that no reasonable factfinder could have found the defendant guilty beyond a
reasonable doubt. State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983).

Domenech was convicted of reckless aggravated battery under K.S.A. 2015 Supp.
21-5413(b)(2)(B). A defendant may be convicted of aggravated battery after "recklessly
causing bodily harm to another person with a deadly weapon, or in any manner whereby
great bodily harm, disfigurement or death can be inflicted." K.S.A. 2015 Supp. 21-
5413(b)(2)(B). A defendant "acts 'recklessly' or is 'reckless,' when such person
consciously disregards a substantial and unjustifiable risk that circumstances exist or that
a result will follow, and such disregard constitutes a gross deviation from the standard of
care which a reasonable person would exercise in the situation." K.S.A. 22015 Supp. 1-
5202(j).

Domenech argues that the evidence produced at trial was insufficient to sustain his
conviction. Domenech contends that the evidence was not sufficient to prove every
element of the crime of which he was convicted. Before trial, Domenech and the State
stipulated that Gardner suffered great bodily harm. The parties also stipulated that the
incident occurred on July 28, 2014, in Lyon County, Kansas. Thus, Domenech
specifically argues that the State failed to establish that he acted recklessly. Domenech
offers no authority in support of this contention. First, Domenech argues that he was not
on notice of any substantial and unjustifiable risk because none existed. Next, Domenech
argues that even if a substantial and unjustifiable risk existed, the evidence was not
sufficient to support a finding that he consciously disregarded such risk.

Domenech first argues that he was not on notice that King's behavior presented a
substantial and unjustifiable risk. In support of this argument Domenech asserts that the
prior attacks on other dogs "did not create a substantial and unjustifiable risk that King
would injure a person." Domenech's claims ignore the severity of the attacks. Domenech
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had one of his own dogs euthanized after it had been attacked by King. King also fought
a neighbor's dog for nearly 20 minutes before Domenech could break up the fight. As the
trial judge noted, this fact alone does not show that a substantial and unjustifiable risk
existed, but it certainly weighs in that direction when taken with other evidence
presented.

Domenech argues next that the incident where King bit Gardner on the foot was
only a "minor incident that would not have put Mr. Domenech on notice that King was
capable of an aggravated battery on a human." Domenech also argues that "other home
healthcare workers were in the home with King around the same period of time and
experienced no problems." These arguments are undermined by Domenech's own
admissions. Domenech admitted that when Hardy suffered from a seizure King would
interfere with the individuals trying to care for her by getting in between them or nipping
at their shoes. Domenech further admitted that even he had been bitten by King in his
attempts to aid Hardy while she was suffering from a seizure. Thus, Domenech's claim
that he was not on notice of King's behavior is repugnant to reason.

Nonetheless, Domenech argues that "[t]he record did not establish that . . .
Gardner expressed her concerns about King . . . ." This assertion cannot stand in light of
the fact that Gardner requested a muzzle for King and Domenech complied. Also, as was
mentioned earlier, Domenech himself had experienced King's behavior. Further,
Domenech was aware of the previous incident when King bit Gardner on the foot.
Finally, any doubt on this point vanishes when Gardner requested that King be muzzled
while she cared for Hardy.

Moreover, relating to the issue of whether Domenech was aware of the risk King
posed, King was not the first dog that Domenech had rescued from an abusive home.
Domenech had previously rescued a dog named Roxie. Roxie was ultimately euthanized
after being deemed a vicious animal. Roxie bit a guest on Domenech's front porch. The
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guest had come to pick up his son from Domenech's home. When the front door was
opened, Roxie ran to the door and bit the guest on the leg. King also came from an
abusive home before living with Domenech. Domenech testified that he was aware of
King's history of abuse when he adopted him. While not all dogs react the same to being
in an abusive home, the fact that Roxie and King shared similar histories put Domenech
on some notice that King had the potential to behave similarly to Roxie. Even with this
knowledge, Domenech only subjected King to minimal obedience training.

To sum up, when Domenech admitted that King had bitten Gardner on her foot
while Hardy was having a seizure and admitted that King had bitten him while attempting
to aid Hardy while she was suffering a seizure, he implicitly concedes that King would
bite someone who was attempting to render aid to Hardy, especially when she was having
a seizure. Combine this with Domenech purchasing a muzzle for King, it affords no basis
for him saying that he lacked notice that King's behavior presented a substantial and
unjustifiable risk.

Thus, Domenech's arguments that the evidence is not sufficient to sustain the
finding that he was aware that King posed a substantial and unjustifiable risk must fail.
Domenech was aware of King's behavior based on the surrounding circumstances and his
own experiences with King. The evidence is sufficient to support a finding that
Domenech was aware of a substantial and unjustifiable risk.

Domenech next argues that even if a substantial and unjustifiable risk existed, he
did not consciously disregard it. Domenech notes that he purchased the muzzle for King.
Domenech also points out that when King was not muzzled he was placed outside or in a
separate room away from Gardner, but the muzzle had been broken for nearly a month
when the attack occurred. Moreover, King was clearly not sequestered when Gardner was
attacked. Domenech testified that he was planning on replacing the muzzle but failed to
do so.
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The trial judge noted that ultimately the determination of guilt in this case hinged
on whether Domenech's actions were reckless. Again, an individual "is 'reckless,' when
such person consciously disregards a substantial and unjustifiable risk that circumstances
exist or that a result will follow, and such disregard constitutes a gross deviation from the
standard of care which a reasonable person would exercise in the situation." K.S.A. 2015
Supp. 21-5202(j). The trial judge made it known that he was focusing on Domenech's
specific situation. The situation being that Domenech had a significant other who
suffered from a medical condition requiring hired assistance and a dog that interfered
when such assistance was needed.

The trial judge found that Domenech was well aware of the way King acted when
Hardy was suffering from a seizure. Thus, Domenech knew that a certain result would
follow from King being present during one of Hardy's seizures. Next, the trial judge
found that Domenech failed to meet the standard of care which a reasonable person
would exercise in the situation of having a significant other who suffered from seizures.
Domenech admitted that the reason for Gardner being in his home was to help Hardy
with her seizures. When asked how the home health care workers were supposed to assist
Hardy if King would not let them get close, Domenech responded, "You've got a point."
Thus, Domenech conceded that having King present would clearly frustrate the very
purpose of Gardner being in his home. As a result, Domenech's argument that his actions
were reasonable does not wash.

The State offers the case of State v. Davidson, 267 Kan. 667, 987 P.2d 335 (1999),
to illustrate recklessness of a dog owner. Davidson may also shed light on whether
Domenech disregarded the risk that King posed.

In Davidson, the defendant was convicted of reckless second-degree murder and
endangering a child. The victim in Davidson was an 11-year-old boy who was killed by
the defendant's Rottweiler dogs. The jury eventually found that the defendant exhibited
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"an extreme degree of recklessness." Davidson, 267 Kan. at 684. The defendant had
trained her dogs to be protective and aggressive. The defendant also acknowledged that
her dogs got out of their enclosure frequently. Finally, on the morning the victim was
killed, the defendant let the dogs out of the house and then took a sleeping pill and went
to sleep. Those facts all supported the jury's finding of recklessness. Our Supreme Court
noted that "the State is not required to prove the defendant knew that her dogs would
attack and kill someone. It was sufficient to prove that her dogs killed [the child] and that
she could have reasonably foreseen that the dogs could attack or injure someone as a
result of what she did or failed to do." Davidson, 267 Kan. at 683.

Here, Domenech argues that he could not have anticipated the events of July 28,
2014, because he was 250 miles away. In the same vein, Domenech argues that Gardner
had interacted with King many times without incident. Much like the defendant in
Davidson, though, the evidence establishes that Domenech should have foreseen that
King could attack or injure Gardner when she was giving aid to Hardy. Moreover, similar
to Davidson, one could analogize taking a sleeping pill with being 250 miles from home.
Both situations present individuals who were unable to exhibit control, whether by
mental incapacitation or by physical impossibility. While the standard for our case of
aggravated battery is different than the charge of reckless second-degree homicide in
Davidson, it still provides us with guidance. The State did not need to show that
Domenech knew King was going to attack Gardner on July 28, 2014. The State only
needed to present sufficient evidence to show that Domenech consciously disregarded a
substantial and unjustifiable risk and that doing so was a gross deviation from the
standard of care a reasonable person would exercise in that situation. K.S.A. 2015 Supp.
21-5202(j). The evidence presented showed that Domenech was aware of King's behavior
during Hardy's seizures. The evidence also showed that Domenech was aware of the
frequency with which Hardy suffered from seizures. Thus, Domenech could have
reasonably foreseen that King could attack Gardner while she was providing care for
Hardy.
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The fact that Domenech was 250 miles from home is of no consequence. What
matters is that Domenech consciously disregarded a substantial and unjustifiable risk and
acted in a way inconsistent with that of a reasonable person in his situation. The evidence
was sufficient to show that Domenech was aware of the risk King posed and did
consciously disregard that risk. In doing so, Domenech failed to act as a reasonable
person would in his situation. Domenech argues that the trial court failed to make clear
what a reasonable person would have done in his situation. The most reasonable solution
in his situation would have been to remove King from the home. Obviously, King's
presence in the home frustrated the care that Gardner could provide Hardy when she was
suffering a seizure. At the very least Domenech could have put more effort into training
King or kept King in the outdoor pen whenever Gardner came to work. The fact that the
trial court did not inform Domenech what a reasonable person would do, however, does
not weigh on our review. Domenech has challenged the sufficiency of the evidence
supporting his conviction. Thus, the only question is whether sufficient evidence existed
to support the trial court's determination of guilt.

Viewing the evidence presented in the light most favorable to the State leads to the
conclusion that the trial judge's determination of guilt was supported by sufficient
evidence. Based on the evidence presented a rational factfinder could have found
Domenech guilty beyond a reasonable doubt. Accordingly, we affirm the trial court's
decision.

Affirmed.