Submitted May 8, 2019
Certified by the Court of Appeals for Hamilton County, No.
Boggs-Muething, Cincinnati City Solicitor, Natalia S. Harris,
Cincinnati City Prosecutor, and Christopher Liu, Senior
Assistant Prosecutor, for appellant.
Raymond T. Faller, Hamilton County Public Defender, and David
Hoffmann Assistant Public Defender, for appellee.
1} In this certified-conflict case, we decide
whether the "dangerous dog" element of R.C.
955.22's dangerous-dog laws requires that the dog in
question have been previously designated as
"dangerous," as defined by R.C. 955.11(A)(1)(a),
pursuant to the procedures set forth in R.C. 955.222 before
the state may prosecute a person for violating R.C.
955.22(D). Here, the First District Court of Appeals
concluded that a prior designation as a dangerous dog is a
prerequisite to its owner being prosecuted for failing to
confine a dangerous dog in violation of R.C. 955.22(D).
2018-Ohio-565, 95 N.E.3d 440. In contrast, the Fifth District
Court of Appeals has determined that the state may establish
the dangerous-dog element by proving that the dog is
"dangerous" without offering proof of any previous
designation. State v. Crocker, 5th Dist. Coshocton
No. 2012 CA 0021, 2013-Ohio-3100. The Fifth District held
that the state may prove "dangerousness" as an
element of the offense at trial, without the dog in question
having been previously designated as dangerous through some
other process. Further, it held that the acts of the dog
qualifying it as "dangerous" pursuant to R.C.
955.11(A)(1)(a) may have occurred simultaneously with the
events giving rise to the R.C. 955.22 dangerous-dog
prosecution. See id. at ¶ 14, 31-32.
2} We recognized that a conflict exists and accepted
the state's appeal on the following question of law:
"Must a dog have been previously designated as a
'dangerous dog' under Chapter 955 of the Ohio Revised
Code before its owner may be prosecuted for a violation of
R.C. 955.22?" 153 Ohio St.3d 1428, 2018-Ohio-2418, 100
N.E.3d 445. We hold that a prior designation of dangerousness
pursuant to R.C. 955.222 or otherwise is not a prerequisite
to prosecution for failing to abide by R.C. 955.22's
dangerous-dog laws. Instead, where the state has probable
cause to believe the dog in question is dangerous, based on
prior actions of the dog that meet the definition contained
in R.C. 955.11(A)(1)(a), the state may initiate prosecution
and prove the dog's dangerousness at trial along with the
other elements of the offense.
3} In the present case, however, we find that the
state failed to present sufficient evidence that the dog in
question was in fact "dangerous." Accordingly, we
answer the certified-conflict question in the negative but
affirm the judgment of the First District Court of Appeals
for reasons that are different from those announced in its
FACTS AND PROCEDURAL HISTORY
4} Appellee, Joseph Jones, was walking his dog near
his Cincinnati apartment when he unleashed the dog to allow
it to protect him from an approaching stray dog. Jones's
dog and the stray interacted without incident. As Jones was
walking back to his apartment, the two dogs proceeded toward
a woman, Alyssa Rushing, who had just exited the building
with her dog. According to Jones, he then re-leashed his dog
and the stray attacked Rushing's dog. Rushing, however,
claimed that Jones's dog bit her on the wrist and hand,
pulling her to the ground, while the stray dog attacked her
dog. Jones assisted in separating his dog from Rushing and
also in freeing her dog from the stray. Both Rushing and her
dog sustained bite wounds.
5} The state charged Jones with failing to confine a
dangerous dog, in violation of R.C. 955.22(D), a
fourth-degree misdemeanor, which, among other things,
prohibits an owner of a dangerous dog from removing the
dog's leash while in public. The case was heard in the
Hamilton County Municipal Court, where Jones was eventually
tried and convicted. The court sentenced him to a 30-day jail
term, suspended on the condition that he successfully
complete six months of nonreporting probation and pay a $100
fine and court costs.
6} On direct appeal, Jones argued that the state
failed to present sufficient evidence to sustain a conviction
for failure to confine a dangerous dog because his dog had
never been designated as a dangerous dog prior to the state
charging him with the offense. According to Jones, the
dangerous-dog element of the offense is established only
through proof of a separate prior legal action that results
in a dog being designated a "dangerous dog" by the
government. He explained that the government can secure a
prior formal designation by following the procedures outlined
in R.C. 955.222-a related statute that provides a civil
notice and hearing process for designating dogs as dangerous
when there is reason to believe that the dog meets the
definition of "dangerous dog" contained in R.C.
955.11(A)(1)(a). Jones argued that R.C. 955.22's
dangerous-dog laws do not apply to a person unless that
person's dog has previously been designated
"dangerous" by the government in accordance with
the process set forth in R.C. 955.222 or alternatively, by a
judge at an earlier proceeding for failure to confine that
7} The state countered that the dangerous-dog
element of the offense does not require a dog to have been
previously designated as dangerous pursuant to R.C. 955.222
or any other judicial proceeding. The state maintained that
the element can be proven at trial by introducing evidence
that the dog's conduct satisfies the "dangerous
dog" definition contained in R.C. 955.11(A)(1)(a), with
no need for a prior formal designation under R.C. 955.222. In
support of its position, the state cited Crocker,
2013-Ohio-3100, the conflict case on appeal. In
Crocker, the Fifth District upheld a conviction
under one of R.C. 955.22's dangerous-dog provisions
without requiring proof of a prior dangerous-dog designation.
Instead, the court held that the state was permitted to
present evidence at trial to prove that the dog was dangerous
as defined by R.C. 955.11(A)(1)(a). Id. at ¶
8} The First District agreed with Jones. In
reversing his conviction, the court held that a previous
dangerous-dog designation "is a prerequisite to finding
a violation of the R.C. 955.22(D)." 2018-Ohio-565, 95
N.E.3d 440, at ¶ 10. The court held that such a
designation "is an element of the offense" and, as
such, could not be satisfied by presenting evidence at trial
that the dog was dangerous. Id. The appellate
court's rationale was premised largely on due-process
concerns pertaining to fairness and notice. In particular,
the First District wrote that a prior designation is required
because it serves to provide the owner with notice that he
must confine his dangerous dog as required by R.C. 955.22(D).
Id. In arriving at its conclusion, the First
District relied on our decision in State v. Cowan,
103 Ohio St.3d 144, 2004-Ohio-4777, 814 N.E.2d 846, and the
legislature's subsequent enactment of R.C. 955.222 and
its notice and hearing requirements. Id.
9} The state filed a motion to certify a conflict
between districts, arguing that the underlying decision in
this case conflicts with the Fifth District Court of
Appeals' decision in Crocker. The First District
granted the state's motion to certify a conflict. We
recognized that a conflict exists and accepted the appeal,
153 Ohio St.3d 1428, 2018-Ohio-2418, 100 N.E.3d 445.
10} Notwithstanding the strong emotional bonds that
often form between people and their dogs, dogs are considered
personal property in Ohio and, as such, are subject to
regulation pursuant to the state's police power.
Cowan at ¶ 9. R.C. Chapter 955, aptly titled
"Dogs," contains numerous laws on the ownership and
treatment of dogs, which range from the details of licensing,
selling, and impounding them to broader physical-control
requirements. Additionally, the chapter defines specific
legal terms, such as "nuisance dog,"
"dangerous dog," and "vicious dog,"
see R.C. 955.11, and outlines penalties for
noncompliance with its laws, see R.C.
11} One of the sections at issue here, R.C. 955.22,
dictates how an owner, keeper, or harborer of a dog must
confine that dog if it is a dangerous dog, see
division (D), and requires the owner, keeper, or harborer of
a dangerous dog to obtain liability insurance if ordered by a
court, see division (E). Additionally, R.C.
955.99(G) enhances the penalty for failing to confine or
control one's dog if it is a dangerous dog. See
R.C. 955.22(C) (establishing general requirements for
confining and controlling "any dog," irrespective
of whether that dog falls under one of the specific
designations set forth in R.C. 955.11). R.C. 955.22 uses the
same definition of "dangerous dog" as that
contained in 955.11(A)(1)(a), which defines a "dangerous
dog" as one that, without provocation, has done any of
the following: (1) caused a non-serious injury to a
person, (2) killed another dog, or (3) has been the subject
of a third or subsequent violation of R.C.
12} A separate section of R.C. Chapter 955, R.C.
955.222, provides a means by which a dog warden or other
authorized official may designate a dog as
"dangerous" when there is reasonable cause to
believe that the dog meets the R.C. 955.11(A)(1)(a)
definition. See R.C. 955.222(B) and (F). If a dog
warden chooses to exercise his or her authority to designate
a dog as dangerous, then the warden must notify the dog's
owner, keeper, or harborer of both the designation and the
option to request a judicial hearing to contest it. R.C.
955.222(A) and (B). At the hearing, the warden has the burden
of proving the designation by clear and convincing evidence.
13} Here, the First District concluded that the
dangerous-dog element of R.C. 955.22's dangerous-dog laws
requires that the dog in question have been previously
designated a dangerous dog. The Fifth District, on the other
hand, allowed the state to introduce evidence other than a
prior designation to prove dangerousness-in that case,
witness testimony establishing that the dog in question
killed another dog. Crocker,2013-Ohio-3100, at