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State v. Lewis

December 3, 2008

STATE OF OHIO/CITY OF AKRON APPELLEE
v.
ROBERT LEWIS APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 07CRB12034.

The opinion of the court was delivered by: Whitmore, Judge.

DECISION AND JOURNAL ENTRY

{¶1} Defendant-Appellant, Robert Lewis, appeals from his convictions and sentence in the Akron Municipal Court. This Court affirms in part and vacates in part.

I.

{¶2} On March 13, 2007, Edward Hawkins took his dog, a Boston Terrier named Skippy, for a walk close to his home on Dorchester Road. During the walk, another dog attacked Skippy. Hawkins managed to kick the other dog until it released Skippy and ran towards Lewis's home. Hawkins recognized the dog that had attacked as Lewis's female Akita named Babi. As a result of the attack, Skippy received medical treatment, but eventually recovered.

{¶3} On September 25, 2007, Hawkins walked Skippy to the end of his driveway near a brick pillar. When Skippy reached the pillar, Babi rapidly emerged from the other side of the pillar, bit Skippy around the neck, and pulled Skippy out of his leash. Hawkins, who opted to carry a small crowbar with him after the initial attack on Skippy, began to hit Babi with the crowbar. Babi released Skippy and ran, but Skippy died as a result of the injuries he sustained. Hawkins telephoned Animal Control and notified them of Babi's fatal attack on Skippy.

{¶4} On September 26, 2007, Akron Animal Control Warden Don Miller filed a complaint and summons in the Akron Municipal Court charging Lewis with the following Akron City Code ("A.C.C.") violations: (1) failure to register a dog, pursuant to A.C.C. 92.08; (2) failure to vaccinate a dog, pursuant to A.C.C. 92.11; (3) owning a dog found to be at large and not under his continuous control, pursuant to A.C.C. 92.25(B)(1); and (4) owning a dog that bites or causes physical harm to another domestic animal while off the premises of the owner, pursuant to A.C.C. 92.25(B)(4). The next day, the Akron Municipal Court ordered that Babi be immediately seized and impounded in the Summit County Animal Shelter for public safety reasons pending the determination of Lewis's case.

{¶5} On October 16, 2007, Warden Miller filed another complaint and summons in the Akron Municipal Court, this time charging Lewis with the following Summit County Ordinance ("S.C.O.") violations: (1) failure to restrain a dangerous or vicious dog, pursuant S.C.O. 505.22; and (2) negligently allowing a dog in his custody or care to cause serious physical harm to another dog while off his premises, pursuant to S.C.O. 505.24. On March 24, 2008, Lewis filed an unsuccessful motion to dismiss the S.C.O. charges.

{¶6} The matter proceeded to a jury trial on May 5, 2008. The jury found Lewis guilty of violating A.C.C. 92.25(B)(4), S.C.O. 505.22, and S.C.O. 505.24. The trial court then found Lewis guilty of failure to control,*fn1 pursuant to A.C.C. 92.25(B)(1), a minor misdemeanor, and dismissed the remaining charges of failing to register and vaccinate Babi. For his violation of A.C.C. 92.25(B)(4), the court sentenced Lewis to restitution, a $500 fine, and 180 days in jail suspended on the condition that Lewis complete thirty days of house arrest. The court also ordered that Babi be destroyed for Lewis's violation of A.C.C. 92.25(B)(4), but suspended the execution of its sentence pending the outcome of this appeal. The court sentenced Lewis to court costs on the remaining counts.

{¶7} Lewis now appeals from the trial court's judgment and raises ten assignments of error for our review. For ease of analysis, we rearrange several of the assignments of error.

II.

Assignment of Error Number Two

"THE COURT FAILED TO ARRAIGMENT THE APPELANT, THEREFORE DEPRIVING APPELANT OF DUE PROCESS OF LAW. THE COURT VIOLATED CRIM R PROCEDE 5,10,11,43 (a)[.]" (Sic.)

{¶8} In his second assignment of error, Lewis seems to argue that the trial court failed to arraign him in accordance with the Ohio Rules of Criminal Procedure. Specifically, he argues that the trial court did not follow the procedures set forth in Crim.R. 5 and Crim.R. 10. We disagree.

{¶9} Crim.R. 5 governs the procedure for initial appearances in criminal cases while Crim.R. 10 governs arraignment procedures. Under both rules "the court is required to advise the defendant of his constitutional rights, including the right to counsel, at the initial appearance or arraignment." State v. Eschrich, 6th Dist. No. OT-06-045, 2008-Ohio-2984, at ¶21. The court also must "inform the accused of the charges made against him and to allow him to offer an answer to those charges." State v. Bickel, 9th Dist. No. 07CA0053, 2008-Ohio-5747, at ¶9, quoting State v. Hawkins (Mar. 24, 1998), 10th Dist. No. 97APA06-740, at *2. Any alleged defects in this procedure must be raised by objection prior to trial. Crim.R. 12(C)(1) (providing that "objections based on defects in the institution of [a] prosecution" must be raised before trial). If a defendant fails to raise an issue regarding the arraignment prior to trial, he forfeits the objection. Bickel at ¶9, citing Crim.R. 12(H).

{¶10} It is unclear whether the court below brought Lewis before it for both an initial appearance and an arraignment. Nevertheless, the court's journal entry, located on the back of Lewis's criminal file folder, indicates that Lewis entered a plea of not guilty after "having been informed of his *** rights pursuant to Criminal Rule 5 and 11." The journal entry also indicates that after the City brought new charges against Lewis on October 16, 2007, for S.C.O. violations, he waived arraignment on the new charges. Thus, it would appear from the trial court's journal entry that Lewis was informed of his rights at the time of his initial charges and voluntarily waived another presentation of those rights when additional charges were brought against him. Moreover, Lewis has not filed a transcript of the proceedings that he claims were deficient. Without a transcript, this Court has no way of determining whether Lewis objected to any alleged defects "in the institution of [his] prosecution" so as to preserve his argument for appeal. See Crim.R. 12(C)(1); State v. Noble, 9th Dist. No. 07CA009083, 2007-Ohio-7051, at ¶12. We must presume regularity of the trial court's proceedings and conclude that Lewis has not met his burden of demonstrating error on appeal. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199. Consequently, Lewis's second assignment of error is overruled.

Assignment of Error Number Three

"THE COURT FAILED TO RULE ON THE APPELANT PRETRIAL MOTIONS THEREFORE DEPRIVING APPELANT OF DUE PROCESS OF LAW AS GARANTEED BY THE OHIO AND UNITED STATES CONSITUION, THE COURT VIOLATED CRIM R. 19 (5) (D) (1). VIOLATED SIXTH AMENDMENT." (Sic.)

{¶11} In his third assignment of error, Lewis argues that the trial court offended his due process rights by failing to rule on his pre-trial motions "for over seven months." He seems to argue that the trial court had no authority to orally rule on his motions because magistrate's orders must be in writing, filed with the clerk, and served upon the parties or their attorneys pursuant to Crim.R. 19.

{¶12} Initially, we note that Crim.R. 19 only applies to magistrates and has no application here. The trial court personally handled every aspect of Lewis's case. Nothing in the record indicates that a magistrate was ever involved. Accordingly, Lewis's argument that the trial court somehow violated Crim.R. 19 lacks merit.

{¶13} The record also does not support Lewis's proposition that the trial court failed to rule on his pre-trial motions "for over seven months." For instance, Lewis filed his motion to dismiss on March 24, 2008, and the trial court journalized its order denying the motion on May 2, 2008. Although Lewis filed a motion to release Babi on October 13, 2007 and the trial court did not journalize its denial of that motion until May 2, 2008, the transcript of a March 28, 2008 proceeding*fn2 contains numerous references to the trial court's oral denial of Lewis's motion at an earlier hearing. Thus, the record contains evidence that Lewis was aware of the trial court's ruling well before it was journalized. Because Lewis has not shown that the trial court failed to rule on his motions in a timely manner, Lewis's third assignment of error is overruled.

Assignment of Error Number Seven

"THE COURT ERRORED IN MOTION TO DISMISS THE APPELANT STATING THAT SCCO 505.22 AND 505.24 ARE UNCONSTITUTIONAL LABELING CERTAIN DOGS 'DANGERROUS' OR VICIOUS WITH OUT PROVIDING THEIR OWNERS DUE PROCESS OF LAW." (Sic.)

{¶14} In his seventh assignment of error, Lewis argues that the trial court erred in denying his motion to dismiss based on the argument that Summit County's vicious dog ordinances are unconstitutional. Specifically, he argues that he was not provided with a meaningful opportunity to challenge Babi's classification as a dangerous or vicious dog in violation of State v. Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777. We agree.

{¶15} This Court reviews de novo a trial court's denial of a motion to dismiss. State v. Osburn, 9th Dist. No. 07CA0054, 2008-Ohio-3051, at ¶12. In doing so, we recognize that "[s]tatutes enjoy a strong presumption of constitutionality." State v. Shipley, 9th Dist. 03CA008275, 2004-Ohio-434, at ¶78. One who seeks to challenge the constitutionality of a statute bears the burden of proving the unconstitutionality beyond a reasonable doubt. Id., citing Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 38-39.

{¶16} In Cowan, the Supreme Court struck down R.C. 955.22, Ohio's vicious dog statute. Cowan at syllabus. The statutory provisions at issue in Cowan provided, in relevant part, as follows:

"(D) Except when a dangerous or vicious dog is lawfully engaged in hunting or training for the purpose of hunting and is accompanied by the owner, *** no owner *** of a dangerous or vicious dog shall fail to do either of the following: "(1) While that dog is on the premises of the owner, *** 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, except that a dangerous dog may, in the alternative, be tied with a leash or tether so that the dog is adequately restrained[.] "*** "(E) No owner *** of a vicious dog shall fail to obtain liability insurance with an insurer authorized to write liability insurance in this state providing coverage in each occurrence, subject to a limit, exclusive of interest and costs, of not less than one hundred thousand dollars because of damage or bodily injury to or death of a person caused by the vicious dog."

R.C. 955.22 utilized R.C. 955.11's definition of the terms "dangerous dog" and "vicious dog." Those statutory provisions provided, in relevant part, as follows:

"(1)(a) 'Dangerous dog' means a dog that, without provocation, *** has chased or approached in either a menacing fashion or an apparent attitude of attack, or has attempted to bite or otherwise endanger any person, while that dog is off the premises of its owner *** and not under the reasonable control of its owner, *** or not physically restrained or confined in a locked pen which has a top, locked fenced yard, or other locked enclosure which has a top. "*** "(4)(a) 'Vicious dog' means a dog that, without provocation and subject to division (A)(4)(b) of this section, meets any of the following: "(i) ...


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