THE STATE OF OHIO, APPELLANT, v. JONES, APPELLEE.
No. 2018-0601
Supreme Court of Ohio
December 17, 2019
Slip Opinion No. 2019-Ohio-5159
Certified by the Court of Appeals for Hamilton County, No. C-160908, 2018-Ohio-565. Submitted May 8, 2019.
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2019-OHIO-5159
Criminal law—Dogs—
STEWART, J.
{¶ 1} In this certified-conflict case, we decide whether the “dangerous dog” element of
{¶ 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
{¶ 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,
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
{¶ 6} On direct appeal, Jones аrgued 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
{¶ 7} The state countered that the dangerous-dog element of the offense dоes not require a dog to have been previously designated as dangerous pursuant to
{¶ 8} The First District agreed with Jones. In reversing his conviction, the cоurt held that a previous dangerous-dog designation “is a prerequisite to finding a violation of the
{¶ 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.
{¶ 11} One of the sections at issue here,
{¶ 12} A separate section of
{¶ 13} Here, the First District concluded that the dangerous-dog element of
{¶ 14} The legislature‘s enactment of
substantially and adversely affected.” Id. at ¶ 5; see also State v. Cowan, 11th Dist. Portage Nos. 2002-P-0029, 2002-P-0030, 2002-P-0031, 2003-Ohio-3547, ¶ 23.
{¶ 16} In this case, the First District relied on our decision in Cowan, as well as the legislature‘s subsequent enactment of
If the designation were not [a] prerequisite, Jones would not have been put on notice as to the statutory requirements for confining his dog, or had the opportunity to challenge the designation and consequent restriction on his property rights. Any other interpretation of
R.C. 955.22(D) would renderR.C. 955.11 superfluous and deprive dog owners of their statutory and constitutional rights to due process. The Ohio Supreme Court already said as much in [Cowan], when it struck down a former version of the “dangerous dog statute” for infringing upon the due process rights of dog owners for the sаme reason, leading to the enactment ofR.C. 955.222 .
Id. at ¶ 10.
C. Due process does not require a prior designation
{¶ 17} To begin, we have acknowledged on many occasions that due process requires notice and fair warning of the conduct proscribed by a penal statute. See generally Akron v. Rowland, 67 Ohio St.3d 374, 381, 618 N.E.2d 138 (1993) (“Due process requires that the terms of a criminal statute be reasonably clear and definite * * * “). But we do not agree with the First District‘s statement that
{¶ 18} The statutory language makes clear that the element of dangerousness contained in
{¶ 19} Further, our decision in Cowan turned on whether a state agent could make a unilateral legal determination, accompanied by relatively burdensome obligations for the owner of the dog, without any procedural oversight. We held that this violated due process, but never concluded, as the appellate court suggests, that the government must have formally designated a dog as “dangerous” before alleging that a person has violated the pertinent parts of
{¶ 20} Contrary to Jones‘s contention, nothing in
E. Sufficiency of the evidence
{¶ 21} Having determined that a prior dangerous-dog designation is not required in order to proceed with a prosecution under
{¶ 22} In order to prove that Jones‘s dog was a “dangerous dog” within the meaning of
{¶ 23} At trial, the state introduced evidence of a Facebook post, allegedly written and posted by Jones, that contained pictures of his dog and several comments underneath. One commenter stated, “I love how he walks thru crowds like no ones outside lol good temperament.” Jones replied, “Yeah I had to train em to do that. He use to try n smell or bite everybody.” Further, Jones testified that at the time of the incident his dog was in “protection training” classes, in which the
{¶ 24} We conclude that the state failed to meet its burden of offering sufficient evidence to sustain a conviction for failure to control a dangerous dog. The facts related above do not establish beyond a reasonable doubt that, prior to biting Ms. Rushing, Jones‘s dog ever caused injury to a person, killed another dog, or was the subject of three or more violations under
III. CONCLUSION
{¶ 25} We answer the certified question by holding that a prior dangerous-dog designation is not required before a person may be prosecuted for failing to control or confine a dangerous dog. Here, however, the state failed to present sufficient evidence of prior acts of Jones‘s dog that would render him dangerous undеr
Judgment affirmed.
O‘CONNOR, C.J., and WAITE, DEWINE, and DONNELLY, JJ., concur.
KENNEDY, J., concurs in judgment only, with an opinion joined by FRENCH, J.
CHERYL L. WAITE, J., of the Seventh District Court of Appeals, sitting for FISCHER, J.
{¶ 26} When interpreting a statute, we give plain and ordinary meaning to all the words and phrases in the statute, State v. Singer, 50 Ohio St.2d 103, 108, 362 N.E.2d 1216 (1977), and give effect to all parts of the statutory scheme, United Tel. Co. of Ohio v. Limbach, 71 Ohio St.3d 369, 372, 643 N.E.2d 1129 (1994). Because the majority‘s holding that a “prior dangerous-dog designation is not required before a person may be prosecuted for failing to control or confine a dangerous dog,” majority opinion at ¶ 25, fails to give effect to the plain and unambiguous meaning оf all the words chosen by the legislature and fails to give effect to all parts of the statutory scheme found in
Statutory Interpretation
{¶ 27} This case presents a narrow certified-conflict question whether a dog must have been previously designated a “dangerous dog” under
{¶ 28} Our duty when construing a statute is to determine and give effect to the intent of the General Assembly as expressed in the language it enacted. Griffith v. Aultman Hosp., 146 Ohio St.3d 196, 2016-Ohio-1138, 54 N.E.3d 1196, ¶ 18; Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 20. “When the statutory language is plain and unambiguous, and conveys a clear and definite meaning, we must rely on what the General Assembly has said.” Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330, 2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12, citing Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000).
{¶ 29} “Where a statute defines terms used therein, such definition controls in the aрplication of the statute * * * .” Good Samaritan Hosp. of Dayton v. Porterfield, 29 Ohio St.2d 25, 30, 278 N.E.2d 26 (1972), citing Terteling Bros., Inc. v. Glander, 151 Ohio St. 236, 85 N.E.2d 379 (1949), and Woman‘s Internatl. Bowling Congress, Inc. v. Porterfield, 25 Ohio St.2d 271, 267 N.E.2d 781 (1971). Terms that are undefined in a statute are accorded their common, everyday meaning. See
{¶ 30} The crime that appellee, Joseph Jones, was convicted of—failing to confine a dangerous dog, in violation of
{¶ 31}
(a) * * * a dog that, without provocation * * * has done any of the following:
(i) Caused injury, other than killing or serious injury, to any person;
(ii) Killed another dog;
(iii) Been the subject of a third or subsequent violation of division (C) of section 955.22 of the Revised Code.
(Emphasis added.)
{¶ 32} The verb “has done” is present-perfect tense and indicates that the behavior by the dog must have previously occurred at some unspecified time. See Robinson v. Ohio State Univ., 10th Dist. Franklin No. 81AP-517, 1982 WL 4144, *2 (Apr. 29, 1982). Therefore, it is only after the dog has first engaged in one of the behaviors set forth in
{¶ 33} But here, the majority holds that the dangerous-dog determination can occur simultaneously with the prosecution for failing to confine a dangerous dog in violation of
{¶ 34} The procedure by which a dog is designated a dangerous dog provides that if the dog warden or authorized official “has reasonable cause to believe a dog * * * is a * * * dangerous dog,” the owner shall be notified of the fact that the warden or authorized person “has designated the dog a * * * dangerous dog.” (Emphasis added.)
{¶ 35} The General Assembly did not define “designate” for purposes of
{¶ 36} The majority states that “nothing in
{¶ 37} Moreover, it appears that the majority has not thoroughly analyzed
{¶ 38} The effect of the majority‘s holding also results in an inconsistent application of other dangerous-dog requirements. Specifically, the owner of a dangerous dog is required to obtain a registration certificate and place a tag on the dog‘s collar that identifies the dog as a dangerous dog,
{¶ 39} However, another part of
{¶ 40} Because I find that giving effect to every word and phrase requires a prior designation that a dog is a dangerous dog before an owner can be charged with a crime for failing to control or confine a dangerous dog, I would answer the certified conflict question in the affirmative and thus I disagree with the majority‘s reasoning. Nevertheless, because the majority affirms the appellate court on other grounds, I concur in judgment only.
FRENCH, J., concurs in the foregoing opinion.
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.
Notes
(1) Keep the dog physically confined or restrained upon the premises of the owner, keeper, or harborer by a leash, tether, adequate fence, supervision, or secure enclosure to prevent escape;
(2) Keep the dog under the reasonable control of some person.”