City of Akron v. Meissner , 92 Ohio App. 3d 1 ( 1993 )

I would affirm both convictions.

First, an amplification of the facts is in order. On November 14, 1992, Meissner's German Shepherd dog, running at large, chased a smaller dog down a public street until the Shepherd grabbed, bit repeatedly, shook and ultimately killed the smaller dog. The owner of the small dog had to use a baseball bat to finally chase off the Shepherd.

The Shepherd was then followed to Meissner's house where it was let into the house by Meissner, who verified that it was her dog.

In Assignment of Error II, Meissner argues that there was not a valid complaint under Crim.R. 3, charging the minor misdemeanor of permitting the Shepherd to run at large. In the first place, Crim.R. 3 is not applicable. Crim.R. 4.1 specifically deals with minor misdemeanors and starts out with the language, "[N]otwithstanding Rule 3 * * *." Crim.R. 4.1(D) is the section to be examined in this case.

The Ohio Supreme Court seems to have come to a different conclusion than the majority opinion on the interpretation of Crim.R. 4.1(D). In State v. Slatter (1981), 66 Ohio St.2d 452,457, 20 O.O.3d 383, 386, 423 N.E.2d 100, 103, the Supreme Court analyzed Crim.R. 4.1 as a whole, including subsection (D) as follows:

"Subdivision (D) requires signing of the citation by theissuing officer and delivery to the court." (Emphasis added).

Conspicuously absent is a requirement that the minor misdemeanor citation be sworn to. This seems to me to support the procedure followed by the officer in this case and the decision by the trial court.

The three cases cited by the majority in support of its position are inapplicable. State v. Miller, supra, dealt with a complaint and affidavit (not a citation) charging a misdemeanor theft under R.C. 2913.02. All that court said was that there is an absence of a sufficient formal accusation when the complaint and affidavit are not even signed. Stewart v. State,supra, is a 1932 case, well predating citations in Ohio, which held that there could be no felony convictions except on indictments, bills of information not existing at that time.State v. Green, supra, involved various misdemeanor charges and was decided on Crim.R. 3.

As to the more serious first degree misdemeanor covered in Assignment of Error I, I believe that not only does the language of the ordinance express the plain purpose of the city council to impose strict liability, but the words "suffer" and "permit," to use an illustrative verb, permit meanings indicative of passive, not active, circumstances.

Akron City Code 92.25 is a strict liability offense. To find otherwise would put Section 92.25(B) in conflict with Section 92.25(C)(3), which provides: "Lack of intent or knowledge is not a defense to a violation of this section." In addition, the nature of the offense plainly indicates City Council's purpose to impose strict liability.

Principles of statutory construction require that courts interpret statutes to reflect a consistent legislative intent. "It is a primary rule of statutory construction that courts should not construe one statute in a way that would abrogate, defeat, or nullify another statute, where a reasonable construction of both is possible." San Diego v. Elavsky (1979),58 Ohio St.2d 81, 86, 12 O.O.3d 88, 91, 388 N.E.2d 1229, 1232. When finding legislative intent, courts must "avoid absurd and grotesque results" wherever possible. State v. Nickles (1953),159 Ohio St. 353, 50 O.O. 322, 112 N.E.2d 531, paragraph one of the syllabus.

It would be inconsistent for City Council to require the prosecution to prove a culpable mental state in its prima facie case, under Section 92.25(B), and then to disallow a lack of intent or knowledge as a defense under Section 92.25(C)(3). A consistent reading of A.C.C. 92.25 as a whole plainly indicates City Council's purpose to impose strict criminal liability.

The nature of the offense also indicates a purpose to impose strict liability. In State v. Buehler Food Markets (1989),50 Ohio App.3d 29, 31, 552 N.E.2d 680, 683, this court found that "where the purpose of the statute is to protect the victim * * * regardless of the mental state of the defendant; where it would be almost impossible to prove guilty knowledge; where the defendant has the sole opportunity to guard against the forbidden conduct and ascertain the true facts; where there exists a serious and substantial harm to the public from such conduct; where the offense is one of the eight categories of offenses amenable to strict liability; and where the offense belongs to the mala prohibita class of offenses which are not inherently wrong in and of themselves unless designated as wrong by the legislature, the conclusion that the legislature intended to impose strict liability is supported."²

A.C.C. 92.25 is similar in these respects to the statute then under consideration, R.C. 1327.61(B).

A.C.C. 130.07(B) relieves the prosecution of any burden to produce evidence of intent under these circumstances: "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. * * *" Since the prosecution proved that the appellant owns the dog described in the complaint and that her dog bit another dog, there was sufficient evidence to convict her under A.C.C. 92.25(B)(4).

Additionally, another dictionary definition for "permit" is "to give opportunity for" and for "suffer" is "to let happen." Neither of these definitions requires that a person actively and recklessly do something which results in her dog biting. Providing an opportunity for or letting something happen connotes passivity to me.

Over and above all of this, it seems to me that a trier of fact could reasonably infer that on the fourteenth of November, at 7:45 pm, in Akron, Ohio, a homeowner does not leave her door open, thus even passively letting her dog roam out to bite, unless dogs are now opening doors. This inference is buttressed by the fact that Meissner later actively opened her door to let her dog in after the biting. I believe it could be inferred that she opened the door to let this dangerous dog out. This recklessness, or at least permitting or suffering, should satisfy even the majority.

I would affirm.

² Sayre, Public Welfare Offenses (1933), 33 Colum.L.Rev. 55, 73, lists the eight categories of offenses amenable to strict liability as:

"(1) Illegal sales of intoxicating liquor;

"* * *

"(2) Sales of impure or adulterated food or drugs;

"* * *

"(3) Sales of misbranded articles;

"(4) Violations of anti-narcotic acts;

"(5) Criminal nuisances;

"(a) annoyances or injuries to the public health, safety, repose or comfort;

"* * *

"(6) Violations of traffic regulations;

"(7) Violations of motor-vehicle laws;

"(8) Violations of general police regulations, passed for the safety, health or well-being of the community."