State v. Walston , 2019 Ohio 1699 ( 2019 )

[Cite as State v. Walston, 2019-Ohio-1699.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2018-04-068
: OPINION
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:
MARY WALSTON, :
Appellant. :
CRIMINAL APPEAL FROM THE HAMILTON MUNICIPAL COURT
Case No. 17CRB04952
Thomas A. Dierling, City of Hamilton Prosecuting Attorney, 345 High Street, Hamilton, Ohio
45011, for appellee
Repper-Pagan Law, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044,
for appellant
PIPER, J.
{¶ 1} Appellant, Mary Walston, appeals from her conviction in the Hamilton Municipal
Court for one charge of failing to confine or control a dog.
{¶ 2} On November 8, 2017, Kurt Merbs, a Butler County Dog Warden, responded to
a call that a puppy was attacked in Hamilton, Ohio. Upon arrival, Merbs met Nicholas
Feazel, the owner of the injured puppy. Feazel indicated he and his puppy were in his
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backyard when Walston's dog jumped Walston's fence, came through Feazel's fence, and
attacked him and his puppy. Merbs observed puncture wounds and a protrusion on the
puppy, and noted that it was in need of medical attention. After Feazel left for the animal
hospital, Merbs looked in Walston's backyard and observed two border collies.
{¶ 3} Walston was not home the day of the incident, but subsequently met with
Merbs at his office on November 14, 2017. At that meeting, Walston indicated the dog in
question belonged to her daughter, and that Walston was watching it while her daughter was
out of town. Merbs then issued Walston a citation for failure to confine or control a dog in
accordance with R.C. 955.22(C).
{¶ 4} A hearing was held and Walston entered a not guilty plea. The court later
issued a judgment entry finding Walston guilty of failing to restrain the dog in violation of R.C.
955.22(C). Appellant was sentenced to two years of community control, fined $100 plus fees
and court costs, and ordered to pay restitution of $5,182.03. Walston timely filed a notice of
appeal. Thereafter, Walston motioned this court for a limited remand related to the
jurisdictional facts within Walston's citation. We granted the motion, and a hearing was held
to supplement the record.
{¶ 5} Walston appeals her conviction, raising two assignments of error for our review.
Assignment of Error No. 1:
{¶ 6} THE COURT LACKED SUBJECT-MATTER JURISDICTION.
{¶ 7} In her first assignment of error, Walston argues the municipal court lacked
subject-matter jurisdiction over this matter because the complaint was defective under
Crim.R. 3.
{¶ 8} Subject-matter jurisdiction involves a court's power to hear a case. State v.
Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, ¶ 10. As a result, "the issue can never be
waived or forfeited and may be raised at any time." Id. The filing of a valid complaint is a
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necessary prerequisite to a municipal court's acquisition of subject-matter jurisdiction. Id. at ¶
12; State v. Dees, 12th Dist. Butler No. CA2015-09-166, 2016-Ohio-2772, ¶ 7.
{¶ 9} Crim.R. 3 defines what constitutes a valid complaint. Mbodji at ¶ 12. Crim.R. 3
requires a complaint to contain "a written statement of the essential facts constituting the
offense charged," "state the numerical designation of the applicable statute or ordinance,"
and "be made upon oath before any person authorized by law to administer oaths."
{¶ 10} After Walston moved this court for a limited remand to the municipal court, a
hearing was held to supplement the record. At that hearing, the parties stipulated to the
following facts: Merbs was unable to make contact with Walston on November 8, 2017, the
date of the incident. The two made contact on November 14, 2017, whereupon Merbs
served Walston with a citation, which was then signed by both Merbs and Walston. After
their meeting, Merbs "returned to his office and provided the citation to his administrative
staff, and at that time the document was notarized by a Notary that is no longer employed."
While notarizing the document, the Notary erroneously put the date of the offense, November
8, 2017, rather than the date the citation was delivered to Walston, November 14, 2017.
{¶ 11} Here, Walston's argument rests on a comparison of the complaint provided to
Walston on November 14, 2017, and the complaint filed with the municipal court.
Specifically, the copy provided to Walston contains Merbs' signature and the filed copy is
witnessed by the Notary's signature. As such, Walston contends that the complaint is not
valid because it was not signed in the presence of a notary. We disagree.
{¶ 12} The Ohio Supreme Court has recognized that "[a] jurat is not part of an
affidavit, but is simply a certificate of the notary public administering the oath, which is prima
facie evidence of the fact that the affidavit was properly made before such notary." Stern v.
Bd. of Elections of Cuyahoga Cnty., 14 Ohio St. 2d 175, 181 (1968). "Crim.R. 3 does not
contain any express reference to the presence of a jurat in a complaint; instead, as to the
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'oath' requirement, the rule only states that the complaint must be made under oath before a
person who has the power to administer the necessary oath." State v. Davies, 11th Dist.
Ashtabula No. 2012-A-0034, 2013-Ohio-436, ¶ 24. As such, even if the jurat is defective,
"the validity of the complaint can still be upheld if the prosecution can otherwise show, based
upon other language in the document or evidence outside the record, that a proper oath was
administered by a person duly authorized to take the oath." City of Miamisburg v. Rinderle,
2d Dist. Montgomery No. 26094, 2015-Ohio-351, ¶ 5. Notably, "[i]n the ordinary case the fact
that the complaint is under oath is shown by the signature of the officer administering the
oath." Davies at ¶ 25.
{¶ 13} According to the record, the complaint indicates that a proper oath was
administered to Merbs and that he swore to the complaint after the date of Walston's offense.
The presence of Merbs' signature on the complaint prior to its notarization does not suggest
that the oath was not duly administered by the Notary. Rather, the record reflects that the
Notary signed the document verifying the complaint and/or affidavit were sworn under oath
by Merbs in her presence. While the date was inaccurate, the parties stipulated that the
Notary made a typographical error, and the complaint was in fact notarized on November 14,
2017. Moreover, there is no evidence in the record that the Notary did not administer the
oath to Merbs, as attested to within the complaint. Accordingly, in light of the Notary's
signature and seal, the record supports that the complaint was made under oath before a
person who has the power to administer the necessary oath and therefore, satisfies Crim.R.
3.
{¶ 14} We also reject Walston's argument that the complaint failed to sufficiently
allege that Walston violated R.C. 955.22(C). "The purpose of a criminal complaint is to
inform the accused of the identity and essential facts constituting the offense charged." State
v. Stefanopoulos, 12th Dist. Butler No. CA2011-10-187, 2012-Ohio-4220, ¶ 21. A complaint
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is not defective because it fails to allege a specific statutory subsection, so long as the
substance of the complaint is sufficient to inform the accused of the charges against her.
State v. Doans, 12th Dist. Butler No. CA2007-10-258, 2008-Ohio-5423, ¶ 8. While the exact
statutory language does not have to be expressed, language equivalent to the crime's
essential elements must be present. State v. Florence, 12th Dist. Butler No. CA2013-08-148,
2014-Ohio-2337, ¶ 22.
{¶ 15} Walston was generally charged with violating R.C. 955.22(C). Pursuant to R.C.
955.22(C)(1), "no owner, keeper, or harborer of any dog shall fail to * * * [k]eep 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[.]"
{¶ 16} The complaint states: "The undersigned being duly sworn, upon his oath,
deposes and says that the person whose name is indicated above, [Walston,] being the
owner, keeper, or harborer of a" black and white female border collie at Carmen Avenue on
"November 8, 2017 at 2:25 pm in Hamilton, Butler County, Ohio did unlawfully violate [R.C.]
955.22(C) – Failure to keep dog either physically restrained by a leash, tether, adequate
fence, supervision, or secure enclosure upon the premises. Failure to Confine or Control a
Dog or Nuisance Dog."
{¶ 17} Based on the above language, we find the complaint's substance was sufficient
to inform Walston that she was charged with a violation of R.C. 955.22(C)(1). Specifically,
the complaint used language to describe Walston's unlawful conduct which followed the
language of R.C. 955.22(C)(1). Additionally, it informed Walston of the essential facts
constituting the offense charged and each of the essential elements were present in the
complaint. Under such circumstances, the exact statutory language is not required. Doans
at ¶ 9; State v. Broughton, 51 Ohio App.3d 10, 11 (12th Dist.1988).
{¶ 18} Accordingly, we find the complaint adequately invoked subject-matter
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jurisdiction in the municipal court, and Walston's first assignment of error is overruled.
{¶ 19} Assignment of Error No. 2:
{¶ 20} WALSTON'S CONVICTION WAS UNLAWFUL.
{¶ 21} In her remaining assignment of error, Walston argues that her conviction is not
supported by sufficient evidence, and was therefore unlawful.
{¶ 22} When reviewing the sufficiency of the evidence underlying a criminal conviction,
an appellate court examines the evidence in order to determine whether such evidence, if
believed, would convince the average mind of the defendant's guilt beyond a reasonable
doubt. State v. Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. The
"relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph
two of the syllabus.
{¶ 23} The complaint states Walston, "being the owner, keeper, or harborer of [the]
dog," violated R.C. 955.22(C). In Ohio, the terms "owner," "keeper," and "harborer" are
separately defined. Thompson v. Irwin, 12th Dist. Butler No. CA97-05-101, 1997 Ohio App.
LEXIS 4728, *5 (October 27, 1997). The owner is the person to whom the dog belongs, and
the keeper is the one having physical charge or care of the dog. Id. A "harborer" is one who
has possession and control of the premises where the dog lives and silently acquiesces to
the dog's presence. State v. Chambers, 12th Dist. Butler No. CA2010-06-136, 2011-Ohio-
1187, ¶ 9.
{¶ 24} In this matter, Walston argues the state failed to present sufficient evidence
that Walston harbored the dog and that her fence was inadequate to confine the dog. At the
hearing, Feazel testified that he observed the dog, which was not restrained or tethered in
any way, run through the bottom rail of his fence and attack his puppy. He recognized the
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dog as Walston's larger border collie. At that time, Feazel ran up to the dog and it
momentarily ran away. Seconds later, the dog returned and attempted to attack the puppy
again. Feazel shoved the dog away, causing the dog to bite his hand before it returned to
Walston's yard.
{¶ 25} The state then presented testimony from Merbs, the dog warden who
investigated the attack. Merbs testified that he interviewed Feazel shortly after the attack,
and that Feazel described the attacking dog as Walston's "bigger dog." While at the scene,
Merbs observed two border collies in Walston's backyard, one slightly larger than the other.
Merbs further testified that during his meeting with Walston, he explained the accusations.
According to Merbs, Walston was cooperative and indicated that the dog in question
belonged to her daughter. She further explained that although she watched the dog "quite a
bit" while her daughter travelled, it lived in Michigan with her daughter. Ultimately, Merbs
issued Walston a citation and advised her that the dog should remain in Michigan.
{¶ 26} In her defense, Walston confirmed that at the time of the incident, she was
watching the dog while her daughter was out of town for two weeks. She further admitted the
dog was kept in the fenced in area of her backyard, with access to her home's garage for
food, water, and shelter from the yard, and that it was in the backyard the day of the
accident. Notably, Walston testified, with support from her daughter's testimony,
photographs, and videos, that the dog could not jump high enough to clear her fence and that
it was out of character for the dog to behave aggressively. As such, Walston contended the
scenario described by Feazel was not believable.
{¶ 27} After a thorough review of the record, we find the evidence sufficient to
establish the state's prima facie showing that Walston was the keeper of the dog in question,
and that Walston failed to keep the dog physically confined or restrained upon her property.
Specifically, the state presented testimony that if believed, established Walston was
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responsible for watching the dog and that she provided it with food, water, and shelter while
her daughter was away. As such, we find Walston had physical charge or care of the dog
while the daughter was out of town. While Walston contends the state based the charge
upon Walston's classification as a "harborer" of the dog, the complaint indicates Walston was
charged as the "owner, keeper, or harborer" of the dog. The testimony at the hearing
demonstrated Walston was the keeper of the dog in question, and therefore exposed
Walston to criminal liability.
{¶ 28} Furthermore, the testimony, if believed, established the dog was not tethered or
restrained, and escaped from Walston's backyard while she was not home, despite the
fencing she had in place. While Walston called into question the believability of Feazel's
story, she did not present any evidence to contradict his first-hand observations of the attack,
or his testimony that the larger border collie escaped to his backyard. Accordingly, due to the
dog's apparent ability to escape, Walston failed to comply with the requirements of R.C.
955.22(C).
{¶ 29} In light of the above, we conclude that the evidence is sufficient to support
Walston's conviction and Walston's second assignment of error is overruled.
{¶ 30} Having found Walston's final assignment of error without merit, we hereby
affirm Walston's conviction for failing to restrain a dog.
{¶ 31} Judgment affirmed.
HENDRICKSON, P.J., and S. POWELL, J., concur.
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