The opinion of the court was delivered by: Evans, P.J.
DECISION AND JUDGMENT ENTRY
¶1. The State of Ohio appeals the judgment of the Athens County Municipal Court, which dismissed two criminal complaints against Defendant-Appellee Jeremy F. Gilchrist. Specifically, the trial court dismissed complaints asserting that appellee had harassed a police dog, in violation of R.C. 2921.321(B)(1), and resisted arrest, in violation of R.C. 2921.33. The trial court found, based on the factual scenario of this case, that enforcement of R.C. 2921.321 was unconstitutional as it violated appellee's freedom of speech under the First Amendment to the United States Constitution.
¶2. The state asserts that the trial court's decision to dismiss the harassment charges was erroneous because the court misinterpreted R.C. 2921.321 by adding an element not found in the statute. In addition, the state asserts that regardless of whether the dismissal of the harassment charges was proper, the resisting arrest complaint was erroneously dismissed.
¶3. For the reasons that follow, we disagree and affirm the judgment of the trial court. Appellee's Interaction with a Police Dog
¶4. On September 29, 2001, at approximately 3:00 a.m., Defendant-Appellee, along with several friends, exited an apartment in Athens, Ohio. Most of the group proceeded north on Court Street, walking on the west side of the street. At that time, Athens City Police Officers were searching a vehicle parked on the east side of Court Street. The officers had completed "sweeping" the vehicle with a police dog and had returned the dog to a marked police car. The police car, which was parked directly behind the vehicle being searched, was clearly labeled as a "K-9 Unit." While in the police vehicle, the police dog barked continuously.
¶5. Shortly after coming out of the apartment, appellee heard the police dog barking and responded to the dog by making barking noises from across the street. Appellee's barking caused the police dog to become excited, jump around the inside of the police vehicle, and bark more. One of the police officers on the scene approached appellee and informed him that he was being arrested for harassing a police dog. The officer forced appellee against a wall and started to handcuff him, placing appellee's hands behind his back. Appellee protested and attempted to turn to face the police officer. The officer responded by forcing appellee to the ground and handcuffing him. Appellee's Motion to Dismiss
¶6. Appellee was charged with harassing a police dog, in violation of R.C. 2921.321(B), and resisting arrest, in violation of R.C. 2921.33. Appellee pled not guilty and moved for a dismissal of the charges. Appellee asserted that enforcement of the police dog harassment under the factual scenario before the court would amount to a violation of appellee's First Amendment right to free speech.
¶7. The trial court conducted a hearing on appellee's motion to dismiss. Several witnesses testified at the hearing, including appellee, some of appellee's friends, and Officer Osborne of the Athens City Police Department, the police dog's handler. Appellee and his friends generally testified that they had been drinking and were joking around with each other when appellee barked twice. They further testified that they were walking down the street when appellee made his barking noises. Finally, appellee testified that he was not warned about the barking noises and that he simply was trying to reason with the arresting officer when he turned to face the officer during the arrest.
¶8. On the other hand, Officer Osborne testified that appellee stood across from the marked "K-9" unit and continuously barked and gestured at the police dog in the vehicle for more than thirty seconds. Officer Osborne also testified that the dog became so excited that it was shaking the police vehicle and barking frantically. The officer further testified that the dog was moving between the front and back seats of the police vehicle and could have broken through the front door windows in reaction to appellee, whom the officer considered a threat. In addition, she testified that she was unable to order the dog to calm down or to control the dog because at the time of appellee's actions, she was inside the vehicle being searched. The officer did not contest appellee's recollection that he was not warned about the barking before the arrest was made. The Trial Court's Judgment
¶9. Initially, the trial court noted that although many jurisdictions have enacted statutes such as the one in Ohio, there is no caselaw dealing with a similar factual situation. Specifically, the trial court noted that most prosecutions involving police dog protection statutes involve the defendant making physical contact with, or causing physical harm to, the animal. Further, the trial court noted that, "It is difficult to conclude that the statute or the enforcement action herein 'is narrowly drawn' to achieve protection from a clear and present danger to the police dog in this case." The trial court also noted that appellee was not warned and that no attempt was made to control the dog prior to appellee's arrest. Thus, the trial court found that "the enforcement of R.C. 2921.321 in response to 'barking' with or at a police dog is prohibited where the defendant is at least thirty feet removed from the animal and there is no possibility of any physical contact with the police dog." The trial court dismissed the charges against appellee. The Appeal I. Assignments of Error
¶10. The state appealed the judgment of the trial court and presents the following assignments of error for our review.
¶11. First Assignment of Error: "The trial court erred in holding that enforcement of R.C. Section 2921.321 in response to 'barking' with or at a police dog is prohibited where the defendant is at least thirty feet removed from the animal and there is no possibility of any physical contact with the police dog."
¶12. Second Assignment of Error: "The trial court erred in dismissing the complaint for resisting arrest since the officer need only have probable cause to believe that the barking and conduct toward the K-9 constituted the offense." II. Motion to Dismiss and Standard of Review
¶13. Appellant's assignments of error amount to a challenge of the trial court's decision to grant appellee's motion to dismiss. In general, when reviewing a trial court's decision to grant or deny a motion to dismiss, an appellate court will defer to a trial court's factual findings, but must independently determine, as a matter of law, whether the trial court erred in applying the substantive law to the facts of the case. See State v. James, Vinton App. Nos. 00CA546, 00CA547, 00CA548, 00CA549, 00CA550, 00CA551, 2001-Ohio-2585, citing State v. Fleming (Apr. 25, 1997), Portage App. No. 96-P-0210; see, also, State v. Williams (1994), 94 Ohio App.3d 538, 543, 641 ...