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State v. Jones

Supreme Court of Ohio

December 17, 2019

The State of Ohio, Appellant,
v.
Jones, Appellee.

          Submitted May 8, 2019

          Certified by the Court of Appeals for Hamilton County, No. C-160908, 2018-Ohio-565.

          Paula 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.

          Stewart, J.

         {¶ 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 opinion.

         I. 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 dog.

         {¶ 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 ¶ 31.

         {¶ 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.

         II. ANALYSIS

         A. Statutory framework

         {¶ 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. 955.99.

         {¶ 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[1] injury to a person, (2) killed another dog, or (3) has been the subject of a third or subsequent violation of R.C. 955.22(C).[2]

         {¶ 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. R.C. 955.222(C).

         {¶ 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 ...


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