Ann Maher Oct. 10, 2014, 5:19pm

The Fifth District Appellate Court has ruled that Madison County Circuit Judge Barbara Crowder was correct in finding that a five-year-old pit bull from Troy was vicious and should be euthanized.

The ruling stems from a bench trial in which Crowder determined the state proved that the dog named Roscoe, without justification, attacked and seriously injured Kenneth Whittaker, who was a neighbor of the dog's owner, William P. Helm. Crowder also found that Roscoe had been determined a dangerous dog on three separate occasions by Animal Control, including the attack on Whittaker.

Helm, who appeared pro se at trial, appealed Crowder's order saying Roscoe's conduct was justified under the Animal Control Act because he was protecting a member of his household, which happened to be another dog owned by Helm named Chloe.

On appeal, Helm was represented by Curtis Blood of Collinsville.

Justice Judy Cates, who authored the opinion published Oct. 6, did not buy Helm's argument.

"The court (Crowder) considered that a purpose of the Act was to protect the public from vicious animals, and determined that even though Roscoe may have been reacting to protect Chloe, Roscoe's attack could not be justified because he should not have been roaming around outside unsupervised and without a muzzle or other restraint," Cates wrote.

Justices Richard Goldenhersh and Stephen Spomer concurred.

According to the case background provided in the appellate court order, the attack against Whittaker took place on May 3, 2013, and the Madison County State's Attorney filed its case against Helm less than two weeks later.

Before the attack against Whittaker, Roscoe had previously been labeled a dangerous dog because he had bitten a young woman in March 2012 and an 8-year-old girl in October 2012. After both incidents he was instructed to keep Roscoe confined, or restrained while he was out in public.

At trial, Whittaker described how the attack unfolded at about 6 p.m. as he was taking out his dogs, a Jack Russell terrier named Pork Chop and a boxer mix named Lad.

The attack was described as following:

"As he stood outside waiting for the dogs, he noticed a pit bull (Roscoe) and a Husky (Chloe) running down the street, frolicking with each other. The dogs were not leashed or muzzled. They were unaccompanied by any human being.

"...[T]he dogs caught the attention of Pork Chop, who was standing in the driveway. Pork Chop barked as the dogs ran past the house. The Husky took note of Pork Chop's barking. She reversed course and charged toward Pork Chop. Pork Chop immediately fled and sped toward a tree in her yard. The Husky gave chase, closed the gap, grabbed Pork Chop, and began to bite her. She then attempted to flip Pork Chop over on her back.

"Whittaker ran over and yelled at the Husky to stop, but she continued to attack Pork Chop. Whittaker kicked the Husky twice, but she was not deterred. As Whittaker prepared to kick a third time, he felt something jump on his leg and grab his arm. It was the pit bull. The pit bull grabbed Whittaker's arm in his jaws, clamped down, and shook his head from side to side.

"Just then, the defendant ran up and shouted at his dogs, Chloe and Roscoe. He told them to stop. Chloe released Pork Chop, and Roscoe let go of Whittaker's arm. The defendant retrieved his dogs and took them home. He would return to the Whittaker residence a short time later to check on Whittaker and Pork Chop.

"After the defendant left with his dogs, Whittaker went inside to see if Pork Chop was hurt. At that point, he discovered that Roscoe had bitten through his sweatshirt, and that Roscoe's teeth had penetrated and ripped his skin, creating a bloody gash on his arm..."

Helm had testified at trial that he didn't know his dogs had gotten loose, nor did he allow them to roam free prior to the attack of Whittaker.

He also testified that he thought Roscoe had gone after Whittaker because Whittaker was kicking Chloe.

Cates wrote that a court makes the ultimate determination on whether a dog's attack is justified to protect a member of his household, but the statute that justifies it does not mandate that a court find that a dog's conduct is justified in every instance of perceived threat.

"In this case, the trial court considered and rejected the defendant's contention that Roscoe's attack on Kenneth Whittaker was justified because he was protecting a member of his household," she wrote.

Cates also noted Roscoe's previous attacks and that Helm failed to comply with orders to keep the dog restrained.

"...[T]he evidence clearly showed that when Roscoe is in contact with people other than his owner, the people are in danger," she wrote.


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