State v. Jones , 95 N.E.3d 440 ( 2018 )

[Cite as State v. Jones, 2018-Ohio-565.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-160908
TRIAL NO. 16CRB-13505
Plaintiff-Appellee, :
O P I N I O N.
vs. :
JOSEPH JONES, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Appellant Discharged
Date of Judgment Entry on Appeal: February 14, 2018
Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Christopher Liu, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffman,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
M ILLER , Judge.
{¶1} Defendant-appellant Joseph Jones was found guilty of failing to confine
a dangerous dog, a fourth-degree misdemeanor, in violation of R.C. 955.22(D). In a
single assignment of error, Jones now claims that his conviction was not supported
by sufficient evidence and was against the manifest weight of the evidence. For the
following reasons, we reverse Jones’s conviction.
Facts
{¶2} Jones walked to his apartment building with his dog, an American Pit
Bull named Prince Bane, on May 15, 2016, at about 3:30 a.m. Jones unleashed his dog
during the walk so that it could interact with a stray female dog. At trial, Jones testified
that the stray looked like an American Pit Bull and was almost the same color as Prince
Bane, but was about half his size.
{¶3} Alyssa Rushing, who lived in the same apartment building, also walked
her dog, a Chinese Crested Hairless, that night. Rushing and her dog were on the
steps to the apartment building when Jones, Prince Bane, and the stray approached.
Rushing saw both dogs running at her and attempted to pick up her dog. Prince
Bane attacked her, biting her hands and pulling her down.
{¶4} Jones countered that the stray had attacked Rushing’s dog and bit
Rushing as she struggled to protect her dog. Jones grabbed the stray and threw it to
the sidewalk below, ending the attack. Jones contended that his dog was innocent
and that Rushing was confused because Prince Bane and the stray were similar in
color.
Jones’s Appeal is not Moot
{¶5} Even though Jones has already served six months of probation
following the trial court’s denial of his motion to stay his sentence, the appeal of his
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OHIO FIRST DISTRICT COURT OF APPEALS
conviction is not moot. While Jones did not subsequently file a motion to stay his
sentence with this court, the Ohio Supreme Court has said that such an appeal is not
moot. “The completion of a sentence is not voluntary and will not moot an appeal if
the circumstances surrounding it demonstrate that the appellant neither acquiesced
in the judgment nor abandoned the right to appellate review, that the appellant has a
substantial stake in the judgment of conviction, and that there is subject matter for
the appellate court to decide.” Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 2011-
Ohio-2673, 953 N.E.2d 278, ¶ 26. See State v. Farris, 1st Dist. Hamilton No. C-
150567, 2016-Ohio-5527, ¶ 4. While we cannot restore the time served on probation,
we can reverse his conviction.
Sufficiency of the Evidence
{¶6} Jones asserts that his conviction was not supported by sufficient
evidence and was against the manifest weight of the evidence. We will address only
the sufficiency of the evidence. A conviction is supported by sufficient evidence when,
after viewing all evidence in the light most favorable to the prosecution, a rational trier
of fact could have found all of the elements of the offense proven beyond a reasonable
doubt. State v. Grice, 180 Ohio App.3d 700, 2009-Ohio-372, 906 N.E.2d 1203 (1st
Dist.).
{¶7} In this case, Jones was charged with, and convicted of, a violation of
R.C. 955.22(D), which states in relevant part that
(D) * * * no owner, keeper, or harborer of a dangerous dog shall fail to
do either of the following: (1) While that dog is on the premises of the
owner, keeper, or harborer, securely confine it at all times in a locked
pen that has a top, locked fenced yard, or other locked enclosure that
has a top; (2) While that dog is off the premises of the owner, keeper,
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OHIO FIRST DISTRICT COURT OF APPEALS
or harborer, keep that dog on a chain-link leash or tether that is not
more than six feet in length and additionally * * * [m]uzzle that dog.
{¶8} R.C. 955.11 defines a “dangerous dog” as “a dog that, without
provocation * * * has done any of the following: (i) Caused injury, other than killing
or serious injury, to any person; (ii) Killed another dog; (iii) Been the subject of a
third or subsequent violation of division (C) of section 955.22 of the Revised Code.”
{¶9} R.C. 955.222 sets forth how dangerous-dog designations are made,
and affords a right to request a hearing. It requires notice by certified mail. Any
hearing shall occur in “[t]he municipal court or county court that has territorial
jurisdiction over the residence of the owner, keeper, or harborer of a dog.” R.C.
955.222(A).
{¶10} In this case, Prince Bane was not previously designated a dangerous
dog under R.C. 955.11. This designation is a prerequisite to finding a violation of
R.C. 955.22(D), as the designation is an element of the offense. If the designation
were not prerequisite, Jones would not have been put on notice as to the statutory
requirements for confining his dog, or had the opportunity to challenge the
designation and consequent restriction on his property rights. Any other
interpretation of R.C. 955.22(D) would render R.C. 955.11 superfluous and deprive
dog owners of their statutory and constitutional rights to due process. The Ohio
Supreme Court already said as much in State v. Cowan, 103 Ohio St.3d 144, 2004-
Ohio-4777, 814 N.E.2d 864, when it struck down a former version of the “dangerous
dog statute” for infringing upon the due process rights of dog owners for the same
reason, leading to the enactment of R.C. 955.222.
{¶11} Cowan involved a dog owner who was charged with failing to confine a
vicious dog and a dangerous dog—labels that were applied, as in this case,
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OHIO FIRST DISTRICT COURT OF APPEALS
concurrent with the prosecution for failure-to-confine. The court held that the
former version of “R.C. 955.22 violates procedural due process insofar as it fails to
provide dog owners a meaningful opportunity to be heard on the issue of whether a
dog is ‘vicious’ or ‘dangerous’ as defined in R.C. 955.11(A)(1)(a) and (A)(4)(a).”
Cowan at ¶ 13. Not requiring compliance with R.C. 955.222’s notice and hearing
requirements would do the same here.
{¶12} The state would like us to follow State v. Crocker, 5th Dist. Coshocton
No. 2012-CA-0021, 2013-Ohio-3100, which it argues is indistinguishable from this
case. In Crocker, a pit bull broke its leash, attacked and killed another dog, and bit
two people. The dog was not previously designated a dangerous dog, but the court
nonetheless found the owner in violation of R.C. 955.22(C) for harboring a
dangerous dog. The Fifth District simply stated that there was
no support for Appellant’s position that a dog has to have previously
violated the “dangerous dog” statute to be designated as a “dangerous
dog.” Here, the dog in question both injured a person and killed
another dog. As such, the dog was a “dangerous dog” within the
meaning of the statute and the offense was a fourth degree
misdemeanor.
Crocker at ¶ 32.
{¶13} We disagree with the Fifth District. First, Crocker ignores the plain
language of R.C. 955.11, which defines “dangerous dog” in the past-perfect tense,
which means that the conduct that triggers the designation must precede the
designation. While the dog in Crocker was certainly a dangerous dog within the
meaning of R.C. 955.11 after the attack, it does not follow that the harborer of the
dog was on notice of the dangerous propensities of the dog prior to the attack, and
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OHIO FIRST DISTRICT COURT OF APPEALS
therefore violated R.C. 955.22. Moreover, Crocker completely ignores Cowan and
R.C. 955.222. Without a designation that the dog was dangerous, the owner was not
put on notice of the necessary precautions to take to avoid prosecution under R.C.
955.22. We decline to follow Crocker.
Conclusion
{¶14} We sustain Jones’s sole assignment of error. We reverse the judgment
of the trial court and hereby discharge Jones from further prosecution.
Judgment reversed and appellant discharged.
D ETERS , J., concurs.
M YERS , P.J., concurs in judgment only.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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