[Cite as State v. Mallis, 196 Ohio App.3d 640, 2011-Ohio-4752.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
THE STATE OF OHIO, ) CASE NO. 10 MA 51
)
APPELLEE, )
)
V. ) OPINION
)
MALLIS, )
)
APPELLANT.
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Youngstown
Municipal Court of Mahoning County,
Ohio
Case No. 09 CRB 2005
JUDGMENT: Vacated. Charges Dismissed.
APPEARANCES:
For Plaintiff-Appellee: Joseph Macejko,
Youngstown City Prosecuting Attorney,
and
John H. Marsh Jr.,
Assistant Prosecuting Attorney, for
appellee.
For Defendant-Appellant: Whalen Duffrin, L.L.C., and
Robert Duffrin, for
appellant.
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: September 15, 2011
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WAITE, Presiding Judge.
{¶ 1} Appellant, Cheryl Mallis, appeals the judgment of the Youngstown
Municipal Court convicting her on one count of failure to confine a vicious dog and
one count of failure to confine a dog. Appellant was originally charged with two
counts of violating the vicious-dog statute, R.C. 955.22(D)(1), and she moved to have
those charges dismissed prior to trial. The motion was overruled, and appellant is
now challenging that ruling on appeal. Appellant contends that the Ohio Supreme
Court ruled in 2004 that R.C. 955.22(D)(1) is unconstitutional on its face. State v.
Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777, 814 N.E.2d 846. The statute has not
been amended or modified since that time. Appellant was charged under the same
section of the vicious-dog statute, using the same definitions of “vicious dog” that
were held unconstitutional in Cowan. Thus, the motion to dismiss should have been
granted. Appellant’s second assignment of error regarding the sufficiency of the
evidence is moot. For the following reasons, the judgment of the trial court is
vacated, and the two criminal charges are hereby dismissed.
{¶ 2} Raymond and Holly Henry were walking their dog, a large German
shepherd and Labrador retriever mix, along the sidewalk on Euclid Boulevard on July
5, 2009. Mrs. Henry was pushing her son’s baby stroller, while Mr. Henry and their
dog, which was on a retractable leash, walked behind her. The Henrys arrived at
appellant’s property, located at 4234 Euclid Boulevard. Appellant’s front yard did not
have any type of tangible physical fence, but it was later established that there was a
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type of invisible electrical fence in the yard. The Henrys’ dog stepped into appellant’s
yard, and it is claimed that it was immediately attacked by appellant’s two dogs. Mr.
Henry was slightly injured in the altercation.
{¶ 3} On August 17, 2009, Deputy Dog Warden Sean Toohey filed two
criminal complaints against appellant, alleging that she had failed to properly confine
vicious dogs, pursuant to R.C. 955.22(D)(1). Appellant was specifically charted with
a violation of the state statute, not a local city ordinance.
{¶ 4} On December 21, 2009, appellant filed a motion to dismiss the
complaints on the grounds that they violated her right of due process and that the
criminal statute had previously been declared unconstitutional in Cowan. The trial
court overruled the motion on January 29, 2010. Appellant renewed the motion at
trial, and it was again overruled.
{¶ 5} The case proceeded to a bench trial on February 25, 2010. Sean
Toohey, the city’s deputy dog warden, testified that he had a conversation with
appellant at her residence in May 2009. He observed the dogs and their responses
to the invisible fence at that time. He stated that the dogs “didn’t mess with [him]” or
the other people who walked by the yard. He did not classify the dogs as vicious at
that time. He testified that he informed Officer Barbara Copeland, who investigated
the incident involving the Henrys’ dog, that he did not think that appellant’s dogs were
vicious.
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{¶ 6} Fred Cailor, one of appellant’s neighbors, testified that appellant’s dogs
had interacted with his dog, also a lab mix, without any problems for the previous
year and a half and that they were not vicious.
{¶ 7} Testimony at hearing established that on July 5, 2009, the Henrys were
walking their dog on a leash on Euclid Boulevard. As they passed appellant’s house,
their dog walked onto appellant’s lawn. There was no visible fence on the property.
Appellant had installed an underground electric invisible fence to restrain her dogs.
Despite the electric invisible fence, appellant’s two dogs ran to the sidewalk and
began fighting with the Henrys’ dog. There is no indication in the record what type of
dogs appellant owned other than that they were not of the breed commonly referred
to as pit bulls. Mr. Henry hit the larger of the two dogs with his plastic retractable
leash in order to free his own dog. He also kicked one of the dogs. When he got
home, Mr. Henry noticed a little bit of blood on his leg. He testified that he had
sustained a bite and a scratch that did not require medical attention. Mr. Henry had
no recollection of sustaining the injuries during the dog’s altercation at appellant’s
home.
{¶ 8} The trial court filed a journal entry of conviction on February 25, 2010.
Appellant was originally charged with two counts of failure to confine a vicious dog
under R.C. 955.22(D)(1). The trial court found that only one of the dogs had injured
Mr. Henry and that the other dog was not vicious. The trial court convicted appellant
of one count of failure to confine a vicious dog under R.C. 955.22(D) and one count
of the lesser included offense of failure to confine a dog under R.C. 955.22(C). The
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violation of R.C. 955.22(D) subjected appellant to a possible jail term of not more
than 180 days. The R.C. 955.22(C) violation subjected appellant to a fine of not less
than $25 dollars or more than $100 on a first offense.
{¶ 9} The sentencing judgment entry was filed on March 25, 2010. The trial
court did not impose a jail sentence or a fine. Appellant was ordered to pay court
costs and restitution in the amount of $417 to the Henrys and to reimburse costs of
community-control supervision in the amount of $100. Appellant was placed on basic
probation supervision for one year. Appellant filed this appeal on March 26, 2010.
Appellant’s sentence was suspended pending this appeal.
Assignment of Error Number One
{¶ 10} “The trial court erred by overruling the defendant’s motion to dismiss
based on a denial of procedural due process.”
{¶ 11} Appellant filed a motion with the trial court to dismiss the two vicious-
dog charges on the grounds that the vicious-dog statute, R.C. 955.22(D)(1), had
been declared unconstitutional on its face in State v. Cowan. Appellant argued that
under the holding of Cowan, the statute was unconstitutional on its face because it
violated the right of due process. Appellant seeks to have us correct the error of the
trial court by granting the motion to dismiss. We have previously held that a trial
court's denial of a motion to dismiss in a criminal case is reviewed de novo on
appeal. State v. Woodbridge, 153 Ohio App.3d 121, 2003-Ohio-2931, 791 N.E.2d
1035, ¶11. We are persuaded by appellant’s argument that Cowan applies in this
case and that the criminal charges should have been dismissed.
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{¶ 12} The vicious-dog statute, R.C. 955.22(D), reads as follows:
{¶ 13} “(D) Except when a dangerous or vicious dog is lawfully engaged in
hunting or training for the purpose of hunting and is accompanied by the owner,
keeper, harborer, or handler of the dog, no owner, keeper, or harborer of a
dangerous or vicious dog shall fail to do either of the following:
{¶ 14} “(1) While that dog is on the premises of the owner, keeper, or harborer,
securely confine it at all times in a locked pen that has a top, locked fenced yard, or
other locked enclosure that has a top, except that a dangerous dog may, in the
alternative, be tied with a leash or tether so that the dog is adequately restrained;
{¶ 15} “(2) While that dog is off the premises of the owner, keeper, or harborer,
keep that dog on a chain-link leash or tether that is not more than six feet in length
and additionally do at least one of the following:
{¶ 16} “(a) Keep that dog in a locked pen that has a top, locked fenced yard, or
other locked enclosure that has a top;
{¶ 17} “(b) Have the leash or tether controlled by a person who is of suitable
age and discretion or securely attach, tie, or affix the leash or tether to the ground or
a stationary object or fixture so that the dog is adequately restrained and station such
a person in close enough proximity to that dog so as to prevent it from causing injury
to any person;
{¶ 18} “(c) Muzzle that dog.”
{¶ 19} R.C. 955.11(A)(4)(a) contains three definitions for the term “vicious
dog.” First, a “vicious dog” is a dog that without provocation “[h]as killed or caused
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serious injury to any person.” R.C. 955.11(A)(4)(a)(i). Second, a “vicious dog” is a
dog that without provocation “[h]as caused injury, other than killing or serious injury,
to any person, or has killed another dog.” R.C. 955.11(A)(4)(a)(ii). A third definition,
found in R.C. 955.11(A)(4)(a)(iii), defines “vicious dog” as a dog that “[b]elongs to a
breed that is commonly known as a pit bull.”
{¶ 20} In Cowan, the dog warden, in response to a neighbor’s complaint about
Cowan’s dogs, classified her dogs as vicious and informed her that her dogs would
be considered “vicious dogs” under the state statutes. As a consequence, R.C.
955.22 placed restrictions and requirements on Cowan and her dogs, such as
purchasing liability insurance (R.C. 955.22(E)) and securing the dogs in a locked pen
or locked fenced yard or with a leash or tether (R.C. 955.22(D)). After this incident,
the dog warden went to Cowan’s home on two more occasions and found that the
dogs were not being confined pursuant to the requirements of the vicious-dog
statute. She was then charged with failing to confine a vicious dog, failure to confine
a dangerous dog, and failure to maintain proper insurance for a vicious dog. After a
jury trial, she was convicted on all charges. She appealed to the Eleventh District
Court of Appeals, and the convictions were reversed. The judgment of the court of
appeals was subsequently affirmed by the Ohio Supreme Court. The Cowan court
wrote:
{¶ 21} “Once the dog warden made the unilateral decision to classify
appellee's dogs as vicious, R.C. 955.22 was put into effect and restrictions were
placed upon appellee and her dogs. No safeguards, such as a right to appeal or an
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administrative hearing, were triggered by this determination to challenge the
viciousness label or its ramifications. In fact, it was not until appellee was formally
charged as a criminal defendant that she could conceivably challenge the
viciousness designation under R.C. 955.22. We find it inherently unfair that a dog
owner must defy the statutory regulations and become a criminal defendant, thereby
risking going to jail and losing her property, in order to challenge a dog warden's
unilateral decision to classify her property. The statute does not provide appellee a
right to be heard in a meaningful time and in a meaningful manner on the issue of
whether her dogs were vicious or dangerous. Accordingly, we find that R.C. 955.22
violates procedural due process insofar as it fails to provide dog owners a meaningful
opportunity to be heard on the issue of whether a dog is ‘vicious’ or ‘dangerous’ as
defined in R.C. 955.11(A)(1)(a) and (A)(4)(a).” Id. at ¶13.
{¶ 22} Three years after the Cowan decision, the Ohio Supreme Court clarified
that the Cowan holding does not apply when the dog is defined as vicious because it
belongs to the breed of dogs known as pit bulls. Toledo v. Tellings, 114 Ohio St.3d
278, 2007-Ohio-3724, 871 N.E.2d 1152, ¶32. Pit bulls are classified as vicious
pursuant to R.C. 955.11(A)(4)(a)(iii). This instant appeal does not involve any
allegation that appellant’s dog was a pit bull, and therefore Toledo v. Tellings is not
applicable and Cowan contains the relevant law to determine the outcome of this
appeal.
{¶ 23} Appellee argues that Cowan declared R.C. 955.22 unconstitutional only
as applied under the facts of the case. Appellee is incorrect in this assertion. A
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statute or ordinance is invalid on its face when it is “unconstitutional in every
conceivable application” or when “it seeks to prohibit such a broad range of protected
conduct that it is unconstitutionally ‘overbroad.’ ” Members of Los Angeles City
Council v. Taxpayers for Vincent (1984), 466 U.S. 789, 796, 104 S.Ct. 2118. By
contrast, an “as applied” challenge “contends that [a statute or ordinance] is
unconstitutional ‘as applied’ to the litigant’s particular speech [or other] activity, even
though the [statute or ordinance] may be capable of valid application to others.”
Regal Cinemas, Inc. v. Mayfield Hts. (2000), 137 Ohio App.3d 61, 72. The Cowan
court invalidated R.C. 955.22 both on its face and as applied. Cowan at ¶13-14.
See, e.g., 2008 Ohio Atty.Gen.Ops. No. 2008-006: “In Cowan the Ohio Supreme
Court held that R.C. 955.22(D)-(F) on their face violate the constitutional right to
procedural due process * * *.” The constitutional error in R.C. 955.22(D) has
rendered it void ab initio and it cannot be revived or reinstated except by further
legislative action. Id.; see also Middletown v. Ferguson (1986), 25 Ohio St.3d 71, 80,
495 N.E.2d 380.
{¶ 24} The facts of the instant case reiterate why R.C. 955.22(D)(1) was
determined to be unconstitutional in Cowan. R.C. 955.22(D)(1) is not a dog-bite
statute, in the sense that liability is based on whether or not a dog bites or has bitten
a victim. R.C. 955.22(D)(1) is a dog-confinement statute. It requires that vicious
dogs be kept in a special locked pen or behind a locked fence. In Cowan, the dog
warden had at least informed Cowan beforehand that her dog was being labeled as
vicious before prosecuting her for failing to properly restrain or cage a vicious dog. In
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the instant case, the deputy dog warden examined appellant’s dogs and specifically
declined to designate them as vicious dogs. There is no indication that appellant
could obtain some type of verification from the dog warden that her dogs were not
vicious, or attempt to prove in a judicial or administrative setting that they were not
vicious before being subjected to criminal penalties for failing to abide by the
additional burdens found in the vicious-dog statute. Appellant first discovered that
her dogs were classified as vicious when criminal charges were filed. In fact,
according to his own testimony, the deputy dog warden did not believe that
appellant’s dogs as vicious or classify them as vicious, yet he filed two criminal
complaints alleging violations of the vicious-dog statute. The deputy dog warden
admitted at trial that he did not investigate the incident that occurred on July 5, 2009,
and that he informed the investigating officer that he did not think the dogs were
vicious. It is unclear from the record why he filed the complaints as the complaining
witness if he did not believe that the dogs were vicious.
{¶ 25} There was considerable discussion and confusion during the trial court
proceedings as to relevance of the Cowan holding in light of the more recent Ohio
Supreme Court case of Youngstown v. Traylor, 123 Ohio St.3d 132, 2009-Ohio-4184,
914 N.E.2d 1026. Traylor involved a violation of a Youngstown municipal dog
ordinance that required vicious dogs to be properly restrained at all times. The
ordinance defined a “vicious dog” as any dog with the propensity to cause injury to a
human being or other domestic animal, or any dog that attacks a human being or
another domestic animal without provocation. Traylor at ¶17.
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{¶ 26} In an effort to distinguish the Youngstown municipal code section in
Traylor from the unconstitutional state statute in Cowan, the Ohio Supreme Court
concluded that the Youngstown ordinance, unlike the state statute, did not place any
special burdens on the owners of vicious dogs, such as requiring the dog to be kept
in specially locked cages, or requiring special insurance. Id. at ¶26. The
Youngstown ordinance merely required the owners of vicious dogs, like the owners of
any other type of dog, to keep the dog securely confined both on and off of the
owner’s property. Id. The Traylor court concluded that there was sufficient due
process under the municipal ordinance because the prosecutor was required to prove
at the criminal trial that a dog was vicious based on the dog’s propensity to attack,
and the dog owner could then provide evidence regarding the temperament and
disposition of the dog in order to prove it was not vicious. Id. at ¶27. In short, the
court in Traylor held that the Youngstown dog ordinance was significantly different
from R.C. 955.22, and those differences allowed it to survive a constitutional due
process challenge.
{¶ 27} The fact that Traylor upheld a local dog ordinance does not change the
holding or the applicability of Cowan with respect to the constitutionality of the state
vicious-dog statute. The instant appeal does not involve a municipal ordinance. It
involves exactly the same vicious-dog statute that was overturned in Cowan.
Furthermore, Traylor reiterated why R.C. 955.22 was unconstitutional: it permitted a
unilateral and unreviewable determination by a state actor prior to the owner’s being
charged, it created prehearing burdens on dog owners, such as requiring liability
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insurance for vicious dogs, and it failed to provide the owner a meaningful
opportunity to challenge the vicious-dog designation (and the corresponding added
statutory burdens placed upon owners of vicious dogs) prior to being charged with a
crime. Id. at ¶26. Also, the later Traylor decision could not have somehow revived or
reinstated a statute that was previously determined to be unconstitutional on its face
in Cowan. See, e.g., State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d
768. As stated above, only the state legislature can remedy a statute that is declared
unconstitutional on its face.
{¶ 28} It is clear that R.C. 955.22(D) was declared unconstitutional on its face
in Cowan. The statute has not been amended or modified since the Cowan decision.
Thus, it continues to be unconstitutional. The trial court should have granted
appellant’s motion to dismiss the two charges alleging violations of R.C.
955.22(D)(1). We hereby sustain appellant’s first assignment of error.
Assignment of Error Number Two
{¶ 29} “The weight of the evidence was insufficient to support the findings and
verdict made by the court.”
{¶ 30} Because we have concluded that R.C. 955.22(D) has been declared
unconstitutional on its face by the Ohio Supreme Court in Cowan, it is therefore
unnecessary for us to determine whether there was sufficient evidence to support a
conviction under an unconstitutional statute. Accordingly, appellant’s second
assignment of error is moot.
Conclusion
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{¶ 31} Appellant argued that the trial court should have dismissed the charges
against her because she was accused of violating an unconstitutional statute.
Appellant’s argument is correct. R.C. 955.22(D) has been declared unconstitutional
on its face in Cowan, and appellant’s motion to dismiss should have been granted.
Appellant’s first assignment of error is sustained, and her second assignment of error
is moot. The judgment of the trial court is vacated, and the two charges of violating
R.C. 955.22(D)(1) are dismissed.
Judgment reversed.
VUKOVICH and DEGENARO, JJ., concur.