West Virginia Record

Monday, July 15, 2019

Self-inflicted dog bite doesn't fly with jurors

By John O'Brien | Aug 23, 2006

CHARLESTON - "Dog bites man" sounded simple enough to David Mincer.

"It was just a dog bite case," said Mincer, an attorney with Charleston law firm Bailey and Wyant. "It was something that looked like nothing out of the ordinary to begin with."

But it didn't end up that way.

Mincer and fellow attorneys Bob Martin and Jared Tully eventually proved to a Clay Circuit Court jury that the alleged biting victim, in fact, killed the dog first then used a butcher knife to administer a self-inflicted dog bite.

Despite having a key witness change her story on the stand, a dead victim that couldn't defend itself even when it was alive and a trial's eve shovel fight, Mincer says his defendant, Jeanette Karnes, came out victorious and even earned $2,500 on a counter-complaint against Plaintiff Terry Harper.

"On the verdict form, the first question was 'Do you find the dog bit him and proximately caused injury,' and it came back 'No," Mincer said. "We asserted a counter-claim. We asked her on the stand the fair market value of a replacement dog, and she said $300.

"The jury truly hated this plaintiff. They awarded her $2,500."

Harper claimed in a case filed in 2004 that his neighbor's 2-year-old Dalmatian, Phantom, bit him on the forearm, and he had to kill it to escape.

During a June trial, though, Mincer says the truth came out.

First, he had to get an order from Judge Jack Alsop allowing the defense to take a picture of Harper's injury. Once he did, he noticed the alleged bite mark left straight-line scars in a criss-cross pattern.

"I asked him on the stand how in the world a dog could bite him and have its teeth leave a criss-cross pattern," Mincer said. "He said, 'I can't say much except this was a vicious dog.'"

His then-wife Marcia Harper testified that after he killed the dog, he came inside their home and attempted to cut his arm with a butter knife. When that didn't work, he grabbed a butcher knife.

The wound, Mincer said, looked considerably worse from the time the picture was taken in January until the trial, like Harper had touched it up.

Still, Mincer was the lone person with a firsthand account of what happened between he and Phantom.

"He was the only one who offered testimony as to how it happened," Mincer said. "The jury found him so incredible that they flat-out rejected his story."

Mincer says he uncovered testimony that led him to believe Harper hated the dog because it barked too much. He previously owned the property Karnes lives on but sold it to her, leading Mincer to believe he was in financial trouble and suspect to filing a bogus lawsuit.

Karnes, a correctional officer at Mount Olive Correctional Center, moved from South Charleston to Clay County to have more room for her animals, which include horses and sheep. She lived side-by-side with the Harpers.

Marcia moved off the property after divorcing Harper. Mincer was concerned that her butter-knife testimony was only a ploy to get back at her ex-husband.

But Jenna Caldwell corroborated the story. She was a friend who happened to be there that night and agreed to testify what she saw.

However, the night before the trial Mincer says Caldwell took a swing at Marcia's new boyfriend, who happened to be Caldwell's ex-boyfriend.

"It was a crazy scenario," Mincer said. "The night before this trial, they got into a fistfight. Jenna swung a shovel and hit Marcia's new boyfriend in the head."

When Marcia showed up at the courthouse, she informed Mincer that Caldwell might change her story because she believed Harper paid her to.

Sure enough, Mincer's questioning was met with responses he didn't anticipate.

"She was the third person there that night, so I asked her if anybody was doing drugs that night," Mincer said. "For whatever reason, she said, 'I'm not gonna lie. I was.'

"I was like, 'Oh no.'

"I asked her if anybody else was, if Harper was. She said it was pretty much just her."

Mincer says he believes the jury didn't buy her testimony and believed she was protecting Harper, who was asking for a $7,000 settlement for medical bills despite never seeing a doctor. Mincer says Harper wouldn't show his wound to a doctor because he or she would be able to ascertain that it wasn't made by a dog's teeth.

"It was one of the more entertaining trials we've ever had," Mincer said.

And he might get to do it over again. He said he watched Harper say something to his attorney, Barbara Harmon-Schamberger of Clay, after the defense verdict was read:

"Appeal it."

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