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State v. Payson

Court of Appeals of Ohio, Second District, Montgomery

May 18, 2018

STATE OF OHIO (CITY OF HUBER HEIGHTS) Plaintiff-Appellant
v.
FRANK M. PAYSON Defendant-Appellee

          Criminal Appeal from Municipal Court Trial Court Case No. 2017-CRB-163E

          L. MICHAEL BLY, Atty. Reg. No. 0042074, GERALD L. MCDONALD, Atty. Reg. No. 0078525 and MICHELLE T. SUNDGAARD, Atty. Reg. No. 0096006, 2700 Kettering Tower, 4 North Main Street, Dayton, Ohio 45423 Attorneys for Plaintiff-Appellant

          FRANK M. PAYSON, 120 West Second Street, Suite 400, Dayton, Ohio 45402 Defendant-Appellee-Pro Se

          OPINION

          TUCKER, J.

         {¶ 1} Plaintiff-appellant the City of Huber Heights appeals from a judgment of the Montgomery County Municipal Court dismissing its criminal complaint against defendant-appellee, Frank Payson. The City contends that the trial court erred by determining that Section 505.11 of the City's Ordinances is unconstitutionally vague. The City further contends that even if the statute is unconstitutional, it does not affect the constitutionality of Section 505.01(a) which is the provision that Payson allegedly violated. For the reasons set forth below, we agree. Accordingly, the judgment of the trial court is reversed and remanded for further proceedings.

         I. Facts and Procedural History

         {¶ 2} On January 25, 2017, Huber Heights Police Sergeant C. Taylor responded to a complaint regarding persons feeding stray cats on the premises of the Kettering Health Network Huber Health Center located at 8701 Old Troy Pike. When he arrived at the location, Taylor observed Payson and his wife feeding cats. After speaking with Payson, Taylor issued him a citation for violating Huber Heights Code (hereinafter "the Code") Section 505.01 (a), a minor misdemeanor. That section provides in relevant part as follows:

         DOGS, CATS AND OTHER ANIMALS RUNNING AT LARGE.

(a) No person shall knowingly or negligently allow any dog, cat or other animal owned or kept by such person to run at large upon any public way or the property of another.

         {¶ 3} Payson, an attorney, appeared on his own behalf for arraignment and entered a plea of not guilty. A trial date was set for April 28, 2017. On April 13, 2017, Payson filed a motion to suppress. On April 20, 2017, he filed a motion to dismiss the complaint contending that the City violated his due process rights. He argued that because this was his first offense, Section 505.01 of the Code required that he be issued a warning rather than a citation. On April 24, 2017, Payson filed a motion for declaratory judgment seeking a determination that Section 505.11 of the Code is void for vagueness.

         {¶ 4} On April 28, 2017, the parties appeared before the court. At that time, the court indicated that it would rule upon the various motions prior to starting the trial. Following testimony from Sandy Payson and Sergeant Taylor, the trial court overruled the motion to suppress. The trial court then heard arguments regarding the motion to dismiss and the motion for declaratory judgment.

         {¶ 5} Payson argued that Code Section 505.11, which he asserts is the "definitional statute of owner/harborer" for purposes of Section 505.01, is void for vagueness. Section 505.11 provides as follows:

         PRESUMPTION OF ANIMAL OWNER, KEEPER OR HARBORER.

         A person shall be presumed to be the owner, keeper or harborer of an animal if ...


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