[Cite as State v. Jackson, 2012-Ohio-5843.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2012-04-094
: OPINION
- vs - 12/10/2012
:
AARON J. JACKSON, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY AREA I COURT
Case No. CRB 11-01-648
Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Wayne C. Staton, 110 North Beech Street, Oxford, Ohio 45056, for defendant-appellant
RINGLAND, J.
{¶ 1} Defendant-appellant, Aaron Jackson, appeals his conviction from the Area
Court I of Butler County.
{¶ 2} On October 20, 2011, Officer Flanagan, a Butler County dog warden, came into
contact with a Great Pyrenees on the property of appellant located at 4263 Hamilton Eaton
Butler CA2012-04-094
Road.1 Officer Flanagan found the dog lying alone under a tree on the front side yard of the
property. There was no visible fence confining the dog.
{¶ 3} Officer Flanagan knocked on appellant's door and attempted to post a notice.
While attempting to post the notice, Office Flanagan testified that the dog came charging at
her, after which she attempted to contain the dog with a snare pole. At that time, appellant
and his mother appeared for the first time. Officer Flanagan then asked appellant for proof of
license for the dog, which he then retrieved from inside the residence. Officer Flanagan
issued appellant a warning for failure to display the license and a ticket for failure to confine
his dog.
{¶ 4} A bench trial was conducted on March 15, 2012. A decision was entered on
March 29, 2012, wherein the trial court found appellant guilty of failure to confine his dog in
violation of R.C. 955.22(C). Appellant was fined $25 and court costs.
{¶ 5} Appellant appeals his conviction, raising two assignments of error for our
review. For ease of discussion, we will address appellant's assignments of error out of order.
{¶ 6} Assignment of Error No. 2:
{¶ 7} APPELLANT'S CONVICTION IS NOT SUPPORTED BY SUFFICIENT
EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 8} When reviewing the sufficiency of the evidence underlying a criminal conviction,
the function of an appellate court is "to examine the evidence admitted at trial to determine
whether such evidence, if believed, would convince the average mind of the defendant's guilt
beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the
syllabus. "The relevant inquiry is whether, after viewing the evidence in a light most favorable
1. Officer Flanagan attempted to testify as to why she came to appellant's property. However, this testimony
was objected to and sustained, and therefore may not be considered by this court.
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to the prosecution, any rational trier of fact would have found the essential elements of the
crime proven beyond a reasonable doubt." Id.
{¶ 9} "While the test for sufficiency requires a determination of whether the state has
met its burden of production at trial, a manifest weight challenge concerns the inclination of
the greater amount of credible evidence, offered in a trial, to support one side of the issue
rather than the other." State v. Wilson, 12th Dist. No. CA2006-01-007, 2007-Ohio-2298, ¶
34. In determining whether the conviction is against the manifest weight of the evidence, an
appellate court "must weigh the evidence and all reasonable inferences from it, consider the
credibility of the witnesses and determine whether in resolving conflicts, the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered." State v. Coldiron, 12th Dist. Nos. CA2003-09-078,
CA2003-09-079, 2004-Ohio-5651, ¶ 24; State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-
Ohio-52. "This discretionary power should be exercised only in the exceptional case where
the evidence weighs heavily against conviction." Id.
{¶ 10} "Because sufficiency is required to take a case to the jury, a finding that a
conviction is supported by the weight of the evidence must necessarily include a finding of
sufficiency." Wilson at ¶ 35. "Thus, a determination that a conviction is supported by the
weight of the evidence will also be dispositive of the issue of sufficiency." Id.
{¶ 11} R.C. 955.22(C) addresses the confinement of dogs and provides as follows:
(C) Except when a dog is lawfully engaged in hunting and
accompanied by the owner, keeper, harborer, or handler of the
dog, no owner, keeper, or harborer of any dog shall fail at any
time to do either of the following:
(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.
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Appellee argues that the dog was neither confined by a leash, tether, adequate fence,
supervision, or secure enclosure, nor was it under the reasonable control of some person as
there was no one else in the yard upon Officer Flanagan's arrival. In turn, appellant argues
that no evidence was introduced to show that the dog left the yard on the date in question or
any other date, and that the dog was professionally trained to remain on the property to
protect livestock.
{¶ 12} We begin by noting that the statute contains multiple ambiguities. When
interpreting a criminal statute that defines offenses or penalties, the language should be
strictly construed against the state and liberally construed in favor of the accused. R.C.
2901.04(A). Accordingly, we construe the "either" language of R.C. 955.22(C) to provide that
only one or the other of R.C. 955.22(C)(1) and R.C. 955.22(C)(2) must be complied with in
order to avoid violation of the statute. Next, we note that the phrase, "reasonable control of
some person," is not well-defined under R.C. 955.22(C)(2), and therefore will be liberally
construed in favor of the accused to determine whether the dog was within the reasonable
control of appellant.
{¶ 13} In the case at bar, the trial court found that when Officer Flanagan arrived at
appellant's farmhouse, which was "located quite a distance from the road," she discovered
appellant's dog asleep under a tree in the yard. There was no evidence introduced that the
dog was venturing away from appellant's property, nor did the trial court make any finding
that the dog was attacking anyone or was otherwise out of control. On the contrary,
appellant provided testimony that the dog is professionally trained to stay in one location and
protect livestock. Appellant further testified that in the eight years he has owned the dog, the
animal has not left the property. Finally, the evidence indicates that appellant was on the
property at the time Officer Flanagan arrived.
{¶ 14} Based on the foregoing, and construing the statute against the state and in
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favor of the accused, we find that the dog was under the reasonable control of appellant
based on the lack of evidence indicating appellant was not supervising the dog, the testimony
that the dog was professionally trained to remain in one location, has never left the property
and was not seen by the warden outside the property, and the finding of the trial judge which
indicated that the dog was not out of control, but rather was lying asleep beneath a tree in
appellant's yard.
{¶ 15} Accordingly, appellant's second assignment of error is sustained.
{¶ 16} Assignment of Error No. 1:
{¶ 17} R.C. 955.22(C) IS VOID-FOR-VAGUENESS, AS THE TERM REASONABLE
CONTROL IS UNDEFINED.
{¶ 18} Based upon our holding under appellant's second assignment of error, it is
unnecessary that we address the question of the constitutionality of R.C. 955.22(C). See
Hall China Co. v. Public Utilities Comm., 50 Ohio St.2d 206, 210 (1977) (recognizing "that
constitutional issues should not be decided unless absolutely necessary"); Smith v. Egleston,
12th Dist. No. CA84-10-068, 1986 WL 6765 (June 16, 1986) (noting "the policy of appellate
courts to avoid the resolution of constitutional issues whenever possible"). Accordingly
appellant's first assignment of error is rendered moot.
{¶ 19} Judgment reversed and appellant discharged.
HENDRICKSON, P.J., and BRESSLER, J., concur.
Bressler, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief
Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.
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