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City of Dayton v. Smith

Court of Appeals of Ohio, Second District, Montgomery

February 23, 2018

CITY OF DAYTON Plaintiff-Appellee
JOHNIECSA SMITH Defendant-Appellant

         (Criminal Appeal from Municipal Court) Trial Court Case No. 2016-CRB-3148

          MATTHEW KORTJOHN, Attorney for Plaintiff-Appellee

          J. ALLEN WILMES, Attorney for Defendant-Appellant


          WELBAUM, P.J.

         {¶ 1} Defendant-appellant, Johniecsa Smith, appeals from her conviction in the Dayton Municipal Court, following a bench trial, for one count of failing to control her dogs in violation of section 91.50(A)(5) of the Dayton Revised Code of General Ordinances ("R.C.G.O."). In support of her appeal, Smith contends that her conviction is against the manifest weight of the evidence. Smith also contends that the language in R.C.G.O. 91.50(D)(2), which sets forth an affirmative defense to a violation of R.C.G.O. 91.50(A)(5), is unconstitutionally vague. For the reasons outlined below, the judgment of the trial court will be affirmed.

         Facts and Course of Proceedings

         {¶ 2} On May 16, 2016, Smith was charged by complaint with one count of failing to control her dogs in violation of R.C.G.O. 91.50(A)(5), a first-degree misdemeanor. Smith pled not guilty to the charge and the matter proceeded to a bench trial on December 1, 2016.

         {¶ 3} At trial, the State presented the testimony of Gregory Beal, II ("Gregory"). Gregory is the adult son of Smith's neighbors, Gregory Beal, Sr. and Tiffany Beal, who reside at 430 Red Haw Road in Dayton, Ohio. Gregory testified that on May 10, 2016, he was visiting his father and stepmother's residence on Red Haw Road when Tiffany asked him to let their three toy poodles, Snoop, Gizmo, and Cocoa, outside to relieve themselves. Per Tiffany's request, Gregory let the poodles outside and allowed them to roam around the Beals' backyard unleashed while he watched them from the Beals' garage.

         {¶ 4} Gregory testified that Snoop the poodle was standing near a broken fence that separated the Beals' property from Smith's adjacent property at 424 Red Haw Road when Smith's two dogs, Buddy and Remy, an American Bulldog mix and a Pitbull, began barking and growling at Snoop. In response, Gregory called for the poodles to come back to the house. As Snoop began to make his way toward the Beals' garage, Gregory observed Buddy come onto the Beals' driveway through the broken fence and "snatch" Snoop. Trial Trans. (Dec. 1, 2016), p. 36-41. Specifically, Gregory testified that Buddy grabbed Snoop by the neck with his mouth, shook Snoop a little, and then took him to Smith's backyard where Snoop was later found dead.

         {¶ 5} In addition to Gregory's testimony, Tiffany Beal testified that four to five minutes after she asked Gregory to let her three poodles outside, Gregory came back in the house and told her that "the neighbor's dog had grabbed Snoop." Trial Trans. (Dec. 16, 2016), p. 91. In response, Tiffany testified that she and Gregory ran outside and attempted to call for Snoop at the broken fence, which she claimed belonged to Smith. Tiffany testified that Smith's two dogs, Buddy and Remy, then began to approach her. Since she did not know whether the dogs were secured, Tiffany testified that she decided to back up and knock on Smith's door and ask if Snoop was in Smith's backyard. Tiffany testified that Smith's husband, Gary Smith, eventually came to the door and looked for Snoop in his backyard. Tiffany testified that when Gary returned, he advised her that Snoop was dead.

         {¶ 6} Tiffany and Gregory both testified that they called the police to report the incident. Officer Chris Smith of the Dayton Police Department and Officer Josh Cusick of the Animal Resource Center arrived at the scene shortly thereafter. Both officers testified that when they arrived at 424/430 Red Haw Road they observed the Beals' toy poodle, Snoop, deceased in Smith's backyard. Cusick testified that he observed puncture wounds in Snoop's neck, abdomen, and rib cage.

         {¶ 7} Both officers also testified that they inspected the leads on which Smith's dogs were attached and determined that the leads were long enough to extend through the broken fence and into the Beals' backyard. According to the officers, the leads were connected to a main chain that was wrapped around a tree in Smith's backyard. Officer Cusick testified that he did not have to move or untie the leads from anything or manipulate the leads in any way to get them to extend into the Beals' property. Similarly, Officer Smith testified that he did not have to remove any kind of debris or unhook the leads from anything to be able to pull them into the Beals' driveway.

         {¶ 8} Officer Cusick further testified that on the day in question he took photographs of the scene, the leads upon which Smith's two dogs were attached, and Snoop's body. The photographs were admitted into evidence as State's Exhibit Nos. 1-9. Both officers testified that the photograph marked as Exhibit 9 depicts the two leads coming through the broken fence and onto the Beals' driveway.

         {¶ 9} Smith and her husband Gary also testified at trial. As part of their testimony, the Smiths did not deny that one or both of their dogs, Buddy and Remy, caused Snoop's death. However, as an affirmative defense, the Smiths attempted to prove that Snoop was unlawfully on their property and that Buddy and Remy were properly secured. To that end, the Smiths testified that a 100 to 120-pound plastic igloo doghouse was sitting on top of the main chain securing Buddy and Remy's leads. According to the ...

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