This cause comes before the court upon the appeal of Sonya Meissner from a decision in the Municipal Court of Akron finding her guilty of failing to control her dog, in violation of Akron City Code ("A.C.C.") 92.25(B)(1) and 92.25(B)(4). The court sentenced the appellant to fines, court costs, and a jail sentence, and her dog was ordered to be destroyed. It suspended part of the fines and all the jail time. The dog's destruction is stayed pending this appeal. We reverse.
On November 15, 1992, Officer Donald Miller issued to the appellant an unsworn complaint and summons charging her with one count of permitting her dog to be at large (A.C.C. 92.25[B][1]) and one count of permitting her dog to bite (A.C.C. 92.25[B][4]). The next day, Officer Miller filed a sworn complaint charging the appellant with violating A.C.C. 92.25(B)(4) only.
The trial court tried the appellant on both counts. The prosecution produced evidence that the appellant's dog was at large and did bite another dog, while the appellant offered no evidence. The trial court entered a guilty verdict on both counts, from which the appellant appeals, asserting two assignments of error. Because the second assignment of error is procedural and the first substantive, this court treats them in reverse order.
Assignment of Error II "The City of Akron failed to properly execute the complaint in violation of Criminal Rule 3. The complaint is void and any conviction resulting therefrom is void. Thus, Defendant was denied due process of law under the Fourteenth Amendment to the United States Constitution and Article 1, Section 10 of the Ohio Constitution."
Crim.R. 3 requires, in part, that a complaint be "made upon oath." Normally, under Crim.R. 4(A)(1), a summons will issue from the sworn complaint, in that order. Crim.R. 4(A)(3), however, provides that "[i]n misdemeanor cases where a law enforcement officer is empowered to arrest without a warrant, he may issue a summons * * *. The officer issuing such summons shall file * * * a complaint describing the offense." In addition, for minor misdemeanors, Crim.R. 4.1 allows another choice of procedure. An officer complying with that rule may issue a copy of a citation to the accused and then, without unnecessary delay, file a sworn original with the court. *Page 3
In this case, the officer issued to the appellant an unsworn copy of a "citation and summons" charging her with both A.C.C. 92.25(B)(1), which is a minor misdemeanor, and A.C.C. 92.25(B)(4), which is a first degree misdemeanor. He never filed a sworn original. Instead, he filed a sworn complaint charging the first degree misdemeanor only.
The city never properly charged the appellant with a violation of A.C.C. 92.25(B)(1). Therefore, the court never acquired jurisdiction over that issue. "In the absence of a sufficient formal accusation, a court acquires no jurisdiction whatever, and if it assumes jurisdiction, a trial and conviction are a nullity." State v. Miller (1988), 47 Ohio App.3d 113, 114,547 N.E.2d 399, 400. See, also, Stewart v. State (1932), 41 Ohio App. 351,353-354, 181 N.E. 111, 111-112. In State v. Green (1988), 48 Ohio App.3d 121, 548 N.E.2d 334, the charging officer signed the complaint, but did not sign the jurat. The court held that an unsworn complaint "is void and any conviction resulting therefrom would be void also." Id. at 122, 548 N.E.2d at 335.
Since the charging officer did not file a sworn original charging the appellant with the dog-at-large violation, in accordance with Crim.R. 4.1, that conviction is void. Only the dog bite charge remains. That charge falls within the process outlined in Crim.R. 4(A)(3), in which an officer may issue the summons before filing the sworn complaint.
The appellant's second assignment of error is well taken as to the Section 92.25(B)(1) count, but not as to the Section 92.25(B)(4) count. Accordingly, on procedural grounds, this court reverses her conviction for permitting the dog to be at large. We now evaluate, on substantive grounds, her conviction for permitting the dog to bite.
Assignment of Error I "There was insufficient evidence as a matter of law to prove any element of intent under the Akron City Ordinance titled Control of Dogs. Thus, the convictions violate A.C.O. [sic] 130.07(A), and due process of law under the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution."
A.C.C. 92.25(B)(4) provides:
"No person owning * * * or having the * * * control of a dog shall suffer or permit such dog to:
"* * *
"(4) Bite or otherwise cause physical harm to any * * * domestic animal * * * while the dog is off the premises of the owner, or while on premises which are not exclusively controlled by the owner." *Page 4
This section must be read together with sections of the Akron City Code governing criminal liability. Specifically, before a defendant may be convicted of this or any criminal offense, A.C.C. 130.07 requires proof of voluntary conduct or omission and proof of the appropriate mental state.
Under A.C.C. 130.07(A)(1), "a person is not guilty of an offense unless * * * [h]is liability is based on conduct which includes either a voluntary act, or an omission to perform an act or duty which he is capable of performing[.]" As applied to A.C.C. 92.25(B)(4), the prosecution must prove that the defendant did "suffer or permit" the dog to bite. Webster's Third New International Dictionary (1961) initially defines "permit" as follows: "to consent to expressly or formally * * *;" other definitions include "to make possible" and "to give an opportunity." Id. at 1683. The same authority defines "suffer" as a synonym for "permit" and as "not to forbid or hinder." Id. at 2284. All of these definitions connote some affirmative act or omission. Since A.C.C. 130.05(A) provides that sections defining offenses shall be strictly construed against the prosecution and liberally construed in favor of the accused, "permit" and "suffer" must be construed to require an affirmative act or omission.
A.C.C. 130.07(A)(2) requires that the prosecution also prove the "requisite degree of culpability for each element" of the crime, except as provided in subsection (B), which provides: "When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in such section, then culpability is not required for a person to be guilty of the offense. * * *." Further, if a mental state is not specified and there is no indication of council's purpose to impose strict liability, then "recklessness is sufficient culpability to commit the offense." A.C.C. 130.07(B).
A.C.C. 92.25 neither sets forth any of the statutory degrees of culpability listed in A.C.C. 130.08 (purposely, knowingly, recklessly, negligently), nor does it plainly indicate a purpose to impose strict criminal liability.1 As alluded to above, the words "suffer or permit" connote some awareness of one's actions and the consequences of those actions. It is noteworthy that the comparable civil liability section of the Ohio Revised Code imposes strict liability, using the phrase "the owner * * * is liable in damages for any injury, death, or loss * * * caused by the dog." R.C. 955.28(B). The Akron City Council had words at its disposal to indicate a purpose to impose strict liability. It chose not to use those words. *Page 5
Since no specific mental state is explicit in Section 92.25(B), nor is there clearly a purpose to impose strict liability, "recklessly" is sufficient culpability to convict. With no evidence of recklessly permitting her dog to bite, the trial court wrongly convicted the appellant. Therefore, the appellant's conviction under A.C.C. 92.25(B)(4) is reversed.
Judgment reversed.
COOK, P.J., concurs.
REECE, J., dissents.
1 While A.C.C. 92.25(C) does provide that lack of intent or knowledge is not a defense, it must be noted that "recklessly" and "negligently" are not mentioned therein.