                          STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     January 3, 2019
               Plaintiff-Appellee,

v                                                                    No. 339504
                                                                     Calhoun Circuit Court
JAVAAN MICHAEL JAMES,                                                LC No. 2016-002790-FH

               Defendant-Appellant.


Before: SWARTZLE, P.J., and SAWYER and RONAYNE KRAUSE, JJ.

PER CURIAM.

        A jury convicted defendant of two counts of animal-fighting, under MCL 750.49(2)(a);
and one count of possessing animal fighting equipment, MCL 750.49(2)(h).1 As defendant was a
third-offense habitual offender, MCL 769.12, the trial court sentenced defendant to concurrent
terms of 24 months to 8 years’ imprisonment. We affirm but remand for correction of the
judgment of sentence.

       This case arises from defendant’s ownership of five dogs: Chico, Chopper, Daisy, China,
and Mayweather. On July 13, 2016, at roughly 3:00 p.m., Sergeant Kurt Roth of the Battle
Creek Police Department arrived at a residence located at 168 Battle Creek Avenue, Battle
Creek, Michigan, while he was assisting the Special Investigations Unit execute a warrant. Not
long after Sergeant Roth arrived, he noticed that there were dogs in the backyard, and, seeing
that two of them were injured, he contacted Officer Mike Ehart, the Animal Control Officer of
the Battle Creek Police Department, to investigate the situation.




1
  The original charging document and judgment of sentence cite MCL 750.49(2)(c) for the
offense of possessing animal fighting equipment. However, MCL 750.49(2)(c) is not the charge
discussed throughout the trial. Rather, the applicable statute is MCL 750.49(2)(h). Therefore,
we remand for the correction of MCL 750.49(2)(c) to MCL 750.49(2)(h) in the judgment of
sentence. See People v Katt, 248 Mich App 282, 312; 639 NW2d 815 (2001) (explaining that, if
a judgment of sentence contains an error, it is appropriate to remand the matter for the ministerial
task of correcting the error).


                                                -1-
        In the backyard, Chico was in a kennel, while the other dogs were separated and tethered
by roughly 15-pound chains attached to tight, heavy collars. When Officer Ehart walked in the
yard, none of the dogs were aggressive with him, and he could touch each one. China and Daisy
had severe injuries, and because China could not walk on her right front leg, Officer Ehart
carried her in order to transport the dogs to the Calhoun County Animal Shelter. Before leaving
the residence, Officer Ehart advised defendant that he was taking the dogs to the animal shelter
and that there would be a fee. In turn, defendant, as the dogs’ owner, surrendered the animals to
Animal Control. Defendant also informed Officer Ehart that Daisy and China had been in a fight
and were injured the previous night.

       While Officer Ehart was at the animal shelter, Corporal Olson remained at the residence
to take pictures and collect items of evidence related to the dogs. Amongst the items that
Corporal Olson collected were the four chains used to tether Chopper, Daisy, China, and
Mayweather to the yard; a treadmill; a “flirt” pole;2 and ribbons, awards, and trophies regarding
the dogs.

        Tory Haywood, a veterinary technician at the Calhoun County Animal Shelter, recalled
that China, Daisy, and Chopper were extremely aggressive with the other dogs at the shelter,
although—as with Officer Ehart—the dogs showed no aggression toward Haywood. Dr. Dale
Borders, a veterinarian who served as an expert in veterinarian medicine at the trial, examined
the dogs at the shelter not long after their arrival. Again, the dogs were not aggressive toward
Dr. Borders. Dr. Borders first examined China and Daisy. China’s right front leg was “badly
bitten,” and Daisy had puncture wounds and bite wounds around her face. According to Dr.
Borders, “whoever she was fighting with concentrated on her front end, right on her head.” Dr.
Borders noted that Daisy, China, Mayweather, and Chopper all had past injuries located on the
front of their bodies—the face, front legs, chest or shoulders.3

        Janette Reever, of the Humane Society of the United States, testified as an expert in
animal welfare and dog fighting. Reever testified that dog owners preparing their dogs for a
fight often use a flirt pole and treadmill. Both items are used to condition the dogs and build up
their physical stamina. The flirt pole is also used to develop the dogs’ eye coordination.
Reever—who has been to two dog shows—explained how these shows related to dog fighting,
stating that owners of fighting dogs created the shows for the purpose of legitimizing their
possession of items indicative of dog fighting, such as a treadmill and flirt pole. According to
Reever, a dog can be both a fighting dog and a show dog.

        Defendant testified on his own behalf at trial. Defendant explained that the reason he
owned his dogs was to enter them in dog shows. Accordingly, he owned the treadmill for the
purpose of training the dogs for upcoming shows. However, he used the flirt pole for simple
positive interaction with his dogs. Defendant denied having ever seen any old wounds on his



2
 A flirt pole is a pole or stick with an item desirable to the dogs tied at the end, such as a piece
of rawhide.
3
    Dr. Borders did not examine Chico.


                                                -2-
dogs, having ever participated in a dog fight, attended a dog fight, or provided any dog or
equipment that he knew was going to be used in dog fighting.

        Defense witness, Dennis Michael Norrod, a semi-retired judge and sponsor of pitbull
terrier shows, testified that a dog fighting training program would involve equipment such as
weight scales, food supplements, and cortisone steroids in addition to other equipment. Norrod
confirmed that he has seen defendant present dogs at six or more shows.

       Defendant argues that there was insufficient evidence to convict him of two counts of
animal-fighting. We disagree.

        On appeal, a claim of insufficient evidence is reviewed de novo. People v Meissner, 294
Mich App 438, 452; 812 NW2d 37 (2011). This Court reviews “the evidence in the light most
favorable to the prosecution” and determines “whether a rational trier of fact could find the
defendant guilty beyond a reasonable doubt.” People v Hardiman, 466 Mich 417, 421; 646
NW2d 158 (2002). “It is for the trier of fact, not the appellate court, to determine what
inferences may be fairly drawn from the evidence and to determine the weight to be accorded
those inferences.” Id. at 428. “This Court will not interfere with the jury’s role of determining
the weight of the evidence or deciding the credibility of the witnesses.” People v Fletcher, 260
Mich App 531, 561; 679 NW2d 127 (2004).

       The animal-fighting statute, MCL 750.49(2)(a), provides, in pertinent part, that a person
shall not knowingly “[o]wn, possess, use, buy, sell, offer to buy or sell, import, or export an
animal for fighting or baiting . . . .”4

       In convicting defendant of this crime, the jury found sufficient evidence to establish the
following elements beyond a reasonable doubt with respect to two of defendant’s dogs: (1) that
defendant owned, possessed, used, bought, sold, offered to buy or sell, imported, or exported (2)
an animal (3) for fighting or baiting, and (4) did so knowingly.

        As an initial matter, there is no dispute that defendant owned the dogs; nor is there a
dispute that the dogs were “animals” within the meaning of the statute.5 As such, there is
sufficient evidence to establish elements one and two of the offense.

       There is also sufficient evidence to establish the third element of the offense—that
defendant owned and used at least two of the dogs for fighting or baiting. Although the
prosecution’s evidence was largely circumstantial, “circumstantial evidence and reasonable
inferences arising from that evidence can constitute satisfactory proof of the elements of a
crime.” See People v Lee, 243 Mich App 163, 167-168; 622 NW2d 71 (2000).


4
  “Baiting” is not defined in the statute. However, summarizing Reever’s testimony on “bait
dogs,” bait dogs are used to teach younger dogs and to provide insight whether the younger dogs
have the fighting style and drive to fight that the dog owner desires. Bait dogs are typically
fighting dogs that have done well in the pit but are too old to keep fighting there.
5
    Under MCL 750.49(1), an “animal” is a vertebrate other than a human.


                                               -3-
        First, the injuries and location of the injuries to the dogs were consistent with fighting
dogs. According to Reever, because fighting dogs fight face-to-face, most of their injuries are
concentrated around the face and front legs. When the officers discovered defendant’s dogs in
his backyard on July 13, 2016, Daisy and China had severe fresh wounds. Daisy’s injuries were
to her face and neck area, in that her face was swollen and was surrounded by puncture wounds.
As would have been the case if Daisy had been in a dog fight, Dr. Borders testified that
“whoever she was fighting with concentrated on her front end, right on her head.” Also like a
fighting dog, both of China’s front legs were injured, and her right leg was unable to bear any
weight. Dr. Borders described China’s right leg as “badly bitten.” Furthermore, China and
Daisy exhibited signs of old wounds, primarily on their faces and front legs. Reever testified:
“[B]oth dogs had injuries that were consistent with dog fighting. Extensive both scarring and
injuries to the face, the front legs, and also elsewhere on the body.” Chico and Chopper also had
scarring primarily on the front of their bodies.

        Additionally, three of defendant’s dogs—China, Daisy, and Chopper—exhibited the
temperament of a fighting dog. Dr. Borders, Haywood, and Officer Ehart all testified that the
dogs were not aggressive with them and that they were able to touch the dogs. However, the
above three dogs were extremely aggressive with other dogs, to the extent that, after spending a
few months at the Calhoun County Animal Shelter, the three dogs had to be euthanized.
Mayweather and Chico, in contrast, were fearful when other dogs showed aggression towards
them. Thus, of the five dogs, only China, Daisy, and Chopper had the trait of “gameness”—the
desire to fight—that defined a fighting dog.

        In addition to the above evidence, the way that defendant secured his dogs in his yard and
the equipment at defendant’s residence also assisted in establishing that defendant owned and
used the dogs for fighting or baiting. Reever explained that fighting dogs are kept separate from
each other, secured by heavy chains attached to heavy, tight collars. Reever further explained
that the purpose of keeping dogs in this manner is to avoid a “yard accident,” when a dog breaks
free and attacks another. Defendant secured the dogs to his yard the same way. Defendant also
had a flirt pole and treadmill at his residence. Although these items can be used for training dogs
for dog shows, they are also a common way to prepare a dog for a dog fight. For these reasons
and viewing the evidence in the light most favorable to the prosecution, there is sufficient
evidence to establish element three of the offense—that defendant owned and used Chico,
Chopper, Daisy, and China; Daisy and China in particular—for fighting or baiting.6

        Lastly, based on the facts and evidence above, there is sufficient evidence to establish
that defendant knowingly owned and used Daisy, China, Chopper, and Chico for fighting or
baiting.

        “Even in a case relying on circumstantial evidence, the prosecution need not negate every
reasonable theory consistent with the defendant’s innocence, but need merely introduce evidence
sufficient to convince a reasonable jury in the face of whatever contradictory evidence the


6
  Daisy and China had fresh injuries and were two of the three dogs that showed aggression
toward other dogs.


                                                -4-
defendant may provide.” People v Hardiman, 466 Mich 417, 423-424; 646 NW2d 158 (2002)
(quotation marks and citation omitted).

       As such, there was sufficient evidence for the jury to convict defendant of two counts of
animal-fighting under MCL 750.49(2)(a). See Lee, 243 Mich App at 167-168.

       Next, defendant argues that insufficient evidence existed for a reasonable jury to convict
him of possessing animal fighting equipment under MCL 750.49(2)(h). We disagree.

        MCL 750.49(2)(h) provides, in pertinent part, that a person shall not knowingly “[o]wn,
possess, use, buy, sell, offer to buy or sell, transport, or deliver any device or equipment intended
for use in the fighting [or] baiting . . . of an animal . . . .”

        Accordingly, in convicting defendant of possessing animal fighting equipment, the jury
found sufficient evidence to establish the following elements beyond a reasonable doubt: (1) that
defendant owned, possessed, used, bought, sold, offered to buy or sell, transported, or delivered
(2) any device or equipment (3) intended (4) for use in the fighting or baiting (5) of an animal (6)
knowingly.

       As an initial consideration, there is no dispute that defendant’s dogs were animals as
defined under the statute. There is also no dispute that defendant owned and used the treadmill
and the flirt pole, which the parties agreed were the only pieces of equipment present in this case.
As such, there is sufficient evidence to establish elements one, two, and five of the offense.

        Turning to the third and fourth elements of the offense, there is also sufficient evidence to
establish that defendant owned equipment intended for fighting. “Intended” is not defined within
the statute. However, Merriam-Webster’s Collegiate Dictionary (11th ed), defines “intended” as
“expected to be such in the future.” Applying this definition, the treadmill and flirt pole are
intended for more than one use. Defendant and Reever agreed that the treadmill and flirt pole
develop physical stamina and develop dog eye coordination. Thus, they are used in dog training,
in general, and as such, are used for dog fighting as well as dog shows.

        Defendant asserts that the flirt pole and treadmill can be explained by his preparation for
dog shows. However, in light of the above circumstances in Issue I and viewing the evidence in
the light most favorable to the prosecution, the jury could reasonably infer that defendant owned
this equipment to prepare his dogs for dog fights. See Lee, 243 Mich App at 167-168 (providing
that “circumstantial evidence and reasonable inferences arising from that evidence can constitute
satisfactory proof of the elements of a crime”). Additionally, “the prosecution need not disprove
all theories consistent with defendant’s innocence; it need only introduce sufficient evidence to
convince a reasonable jury of its theory of guilt despite the contradictory theory or evidence a
defendant may offer.” People v Solmonson, 261 Mich App 657, 662-663; 683 NW2d 761
(2004). For these reasons, there was sufficient evidence to establish elements three and four of
the offense—that defendant owned and used equipment intended for dog fighting.

       Lastly, based on the foregoing, there was sufficient evidence that defendant knowingly
owned and used his equipment intended for use in the fighting of his dogs. For these reasons,
there was sufficient evidence for the jury to find beyond a reasonable doubt that defendant
committed the offense of possessing animal fighting equipment.

                                                 -5-
        Defendant also argues that the trial court erred in denying his motion to quash because
the police entered his residence on July 13, 2016, without a warrant, and both the July 12, 2016
and July 13, 2016 warrants were not supported by probable cause. We disagree.

       “A trial court’s findings on a motion to suppress evidence as illegally seized will not be
reversed on appeal unless clearly erroneous, while questions of law and the decision on the
motion are reviewed de novo . . . .” People v Waclawski, 286 Mich App 634, 693; 780 NW2d
321 (2009) (citations omitted). A finding is clearly erroneous if this Court is left with a definite
and firm conviction that the trial court has made a mistake. Id.

        When reviewing a magistrate’s decision that probable cause existed, this Court considers
“whether a reasonably cautious person could have concluded that there was a substantial basis
for the finding of probable cause.” People v Russo, 439 Mich 584, 603; 487 NW2d 698 (1992).
“[A] magistrate’s decision regarding probable cause should be paid great deference.” People v
Martin, 271 Mich App 280, 297; 721 NW2d 815 (2006). A search warrant cannot be issued
unless it is supported by probable cause, which exists when “there is a ‘substantial basis’ for
inferring a fair probability that contraband or evidence of a crime will be found in a particular
place.” Illinois v Gates, 462 US 213, 238; 103 S Ct 2317; 76 L Ed 2d 527 (1983).

        Probable cause may be based, in part, on information supplied by a confidential
informant, provided that the affidavit included “affirmative allegations from which the judge or
district magistrate may conclude that the person spoke with personal knowledge of the
information and either that the unnamed person is credible or that the information is reliable.”
MCL 780.653(b). “If the search warrant is supported by an affidavit, the affidavit must contain
facts within the knowledge of the affiant and not mere conclusions or beliefs.” Martin, 271 Mich
App at 298. “Personal knowledge can be inferred from the stated facts.” Id. at 302.

        As an initial matter, we note that defendant’s first argument is factually inaccurate and, as
such, is without merit. Defendant alleges that the police entered his home without a warrant on
July 13, 2016, and therefore, he claims that the prosecution must demonstrate an exigent
circumstance to validate the entry. However, according to the affidavits and search warrants for
July 12, 2016 and July 13, 2016, as well as the trial court’s ruling on the motion to suppress, the
officers entered 168 Battle Creek Avenue pursuant to a warrant that had a mere typographical
error. Thus, the officers entered defendant’s residence pursuant to a warrant. Nonetheless, upon
catching the error, the officers waited until a corrected warrant was obtained before seizing any
evidence. Accordingly, defendant’s argument is based on an inaccurate factual premise. As
such, defendant’s argument must fail. See People v Traylor, 245 Mich App 460, 464; 628
NW2d 120 (2001) (explaining that it is the responsibility of the defendant, not the Court, to
search for facts underlying his argument).

       Defendant also argues that the trial court erred in denying his motion to suppress because
the search warrants were not based on probable cause, as the affidavits provided insufficient
information as well as unreliable information from the confidential informant. We disagree.

        Probable cause may be based, in part, on information supplied by a confidential
informant, provided that the affidavit included “affirmative allegations from which the judge or
district magistrate may conclude that the person spoke with personal knowledge of the
information and either that the unnamed person is credible or that the information is reliable.”
                                                -6-
MCL 780.653(b). “[T]he fact that the police previously had utilized information provided by [a
particular] informant in other warrant requests with successful results provide[s] . . . support for
the magistrate to conclude that the informant [i]s credible and reliable.” People v Stumpf, 196
Mich App 218, 223; 492 NW2d 795 (1992).

        The confidential informant in this case, X, spoke with personal knowledge of the
information that he provided to the affiant, Officer Kelson Gettel. X performed a controlled
hand-to-hand buy at a prearranged location, 168 Battle Creek Avenue. Officer Gettel observed
the buy and searched X before and after the transaction. X provided Officer Gettel the
defendant’s name, informed Officer Gettel that defendant owned the house, and provided Officer
Gettel with a bag of what X suspected was heroin, a fact that Officer Gettel later confirmed.
These facts demonstrate X’s reliability and personal knowledge pursuant to MCL 780.635(b).
Furthermore, that Officer Gettel observed the transaction and verified the substance as heroin
established that the affidavit contained facts within the knowledge of the affiant. See Martin,
271 Mich App at 298 (explaining that, “[i]f the search warrant is supported by an affidavit, the
affidavit must contain facts within the knowledge of the affiant and not mere conclusions or
beliefs”). Additionally, Officer Gettel’s statement in the affidavit that “X has proven credible in
the past by purchasing heroin for the Battle Creek Police Special Investigation Unit which has
resulted in the seizure of controlled substances” further undermines defendant’s argument that
probable cause does not exist because the affidavit relies on information provided by an
informant. See Stumpf, 196 Mich App at 223 (providing that, “the fact that the police previously
had utilized information provided by [a particular] informant in other warrant requests with
successful results provide[s] . . . support for the magistrate to conclude that the informant [i]s
credible and reliable”).

       Based on the foregoing and because this Court has stated that “[t]he controlled purchases
of cocaine [are] sufficient to establish probable cause to permit the magistrate to issue the
warrant,” it stands to reason that there was probable cause for the warrants in this case. See
People v Head, 211 Mich App 205, 209; 535 NW2d 563 (1994); see also Martin, 271 Mich App
at 297 (providing that “a magistrate’s decisions regarding probable cause should be paid great
deference”).

       Accordingly, the trial court did not err in denying defendant’s motion to suppress the
evidence. See Martin, 271 Mich App at 298.

        Defendant’s convictions are affirmed. However, we remand for the ministerial task of
correcting the judgment of sentence. We do not retain jurisdiction.



                                                             /s/ Brock A. Swartzle
                                                             /s/ David H. Sawyer
                                                             /s/ Amy Ronayne Krause




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