State v. Caldwell

[Cite as State v. Caldwell, 2016-Ohio-568.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 15 CAC 07 0058
JAMES CALDWELL
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court,
Case No. 15 CRB 01 230
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 16, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
NICOLE L. CLUM CHAD A. HEALD
ASSISTANT PROSECUTOR 125 North Sandusky Street
70 North Union Street Delaware, Ohio 43015
Delaware, Ohio 43015
Delaware County, Case No. 15 CAC 07 0058 2
Wise, P. J.
{¶1} Defendant-Appellant James Caldwell appeals his conviction entered in the
Delaware Municipal Court on one count of Failure to Confine Dog, following a bench trial
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE CASE
{¶3} The relevant facts are as follows:
{¶4} On April 30, 2015, Michael Wells, an employee of United Parcel Service
Service (UPS), was delivering a package to Appellant at his residence when he was bit
on his left bicep by Appellant's German Shepherd Dog. (T. at 7, 10, 39). Mr. Wells has
been a deliveryman since 1998 and has delivered packages to Appellant on numerous
occasions, but he had never interacted with Appellant's dog until the day he was attacked.
(T. at 7, 9).
{¶5} On April 30th, Appellant came out of his house through the garage to meet
Mr. Wells, who was delivering a package. (T. at 38). The dog ran out of the garage, around
Appellant, and bit Mr. Wells on the arm. Id. Appellant had to pull his dog off of Mr. Wells.
(T. at 14). Mr. Wells had to have stitches and still had a visible scar at the trial. (T. 10,
12).
{¶6} The encounter happened on Appellant's property, which is surrounded by
fencing. The dog was not on a chain or restrained in any way when the attack occurred.
(T. at 13, 21, 23).
{¶7} This incident was investigated by Dog Warden Daniel James, who cited
Appellant. (T. at 22).
Delaware County, Case No. 15 CAC 07 0058 3
{¶8} On May 6, 2015, Appellant was charged with one count of Failure to Confine
a Dog, in violation of R.C. §955.22(C)(1) a minor misdemeanor.
{¶9} On May 28, 2015, Appellant entered a plea of Not Guilty, and the matter
was scheduled for trial before the court.
{¶10} On July 7, 2015, a bench trial was held before the court.
{¶11} At trial, the State of Ohio called Michael Wells, the victim and Daniel James,
the Delaware County Dog Warden.
{¶12} Mr. Wells testified that on April 30, 2015, he was delivering a package to
Appellant's home, where he had previously delivered packages in the course of his
employment. (T. at 8). Mr. Wells testified that there is a split-rail fence surrounding
Appellant's property and was able to identify the fence surrounding Appellant's property
on Defendant's Exhibit 1 (T. at 8, 16).
{¶13} Mr. Wells further testified that he was aware Mr. Wells had a dog as he
"could always hear he has a dog when I come make a delivery." (T. at 9). Mr. Wells further
made notations on Defendant's Exhibit 1 which demonstrated where he parked his UPS
truck and where he first encountered Appellant's dog. (T. at 17). Mr. Wells testified that
at no point during his interaction with Appellant's dog was he outside of the property fence.
Id.
{¶14} Daniel James, the Dog Warden, testified that he observed Appellant's fence
around the perimeter of his property. (T at 21). On cross-examination, Mr. James
acknowledged that he only charged Appellant with an alleged violation of R.C.
§955.22(C)(1), which alleged he failed to confine his dog upon his premises. (T. at 22).
He further acknowledged that no one, during the course of his investigation, alleged that
Delaware County, Case No. 15 CAC 07 0058 4
the dog bite occurred off of Appellant's property, and that at all times during his interaction
with the dog, Mr. Wells was located inside Appellant's perimeter fence. (T. at 23). Further,
Mr. James agreed that he had specifically indicated that the dog in question was not a
dangerous or vicious dog, and that no prior citations had been issued pertaining to this
dog. (T. at 23). He further testified that in addition to the fence surrounding Appellant's
property, there is a gate at the front entrance of the property. (T. at 24).
{¶15} Following the presentation of the State's case, counsel for Appellant moved
for a Judgment of Acquittal, pursuant to Criminal Rule 29. The trial court overruled the
Motion for Judgment of Acquittal.
{¶16} Appellant then put on his defense, testifying on his own behalf. Appellant
testified that he was a retired Special Agent with the United States Secret Service, and
that he had experience with acquiring K9s for law enforcement. (T. at 31). He testified
that the dog in question is well-trained and has never bitten another person. (T. at 32).
Appellant described the perimeter fence which encloses his property. (T. at 32-33). He
further testified that the dog in question had never escaped from the perimeter fence of
the property, and that there is a gate across his driveway (T. at 35). Appellant testified
that Mr. Wells was at his home making deliveries approximately two times a week. (T. at
37).
{¶17} Appellant, by and through counsel, submitted three photographs as
exhibits.
{¶18} Following the presentation of all evidence, the trial court made a finding of
guilty. The judge found on April 30, 2015, Appellant failed to adequately supervise or
Delaware County, Case No. 15 CAC 07 0058 5
secure the dog, which was evident by the fact the dog escaped Appellant's house and
was able to bite Mr. Wells. (T. at 50-51).
{¶19} Appellant now appeals, assigning the following errors for review:
ASSIGNMENT OF ERROR
{¶20} “I. APPELLANT’S CONVCTION [SIC] WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE.”
I.
{¶21} In his sole Assignment of Error, Appellant argues that his conviction was
not supported by sufficient evidence. We disagree.
{¶22} The standard of review for a challenge to the sufficiency of the evidence is
set forth in State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991) at paragraph two
of the syllabus, in which the Ohio Supreme Court held, “An appellate court's function
when reviewing the sufficiency of the evidence to support a criminal conviction 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.
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.”
{¶23} Here, Appellant was charged with a violation of R.C. §955.22(C)(1). R.C.
§955.22(C) states 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 either of the following:
Delaware County, Case No. 15 CAC 07 0058 6
(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.
{¶24} Specifically, Appellant argues that the state of Ohio did not present any
evidence that he failed, at any time, to keep his dog confined upon his premises; that he
did not have an adequate fence or that he failed to prevent the dog’s escape. Appellant
argues that he complied with the mandate of R.C. §955.22(C)(1) as it pertains to confining
his dog on his premises by way of an adequate fence.
{¶25} At the conclusion of the trial, the trial court found:
“… I think by the plain language the bite is relevant to show that the dog was not
under the supervision or otherwise confined, restrained by the owner at the time
of the incident, not ever. Certainly, these are factors the Court takes into
consideration, but at the time of the incident.
…
“I think what’s important for everybody is we’re not saying that Mr. Caldwell is a
bad owner or that Tara’s necessarily a bad dog. But like we oftentimes say in
municipal court, Tara had a bad day. And at the moment when she bit the postman
[UPS driver], that’s when the offense occurred, and that’s when there was a failure
to adequate – to have adequate supervision or secure the dog. Okay? Because
she escaped when she bit him, she escaped from the supervision of her owner.”
(T. at 49-50).
Delaware County, Case No. 15 CAC 07 0058 7
{¶26} Upon review, we find that the trial court’s decision was based on sufficient
evidence. The state of Ohio presented evidence that the dog was not under the adequate
supervision of its owner by way of the testimony of the UPS driver who described how the
dog ran out of the house, through the garage, around his owner and attacked him.
{¶27} Accordingly, based on the foregoing, we find Appellant’s conviction is
supported by the sufficiency of the evidence.
{¶28} Appellant’s sole Assignment of Error is overruled.
{¶29} For the foregoing reasons, the judgment of the Municipal Court of Delaware
County, Ohio, is affirmed.
By: Wise, P. J.
Baldwin, J., concurs.
Delaney, J., dissents.
JWW/d 0203
Delaware County, Case No. 15 CAC 07 0058 8
Delaney, J., dissenting.
{ ¶ 30} I respectfully dissent from the majority opinion. I would find there was
insufficient evidence of “escape” from the premises of Appellant under R.C. 955.22(C)(1)
and therefore would sustain Appellant’s sole assignment of error. See also, State v.
Jackson, 12th Dist. Butler No. CA2012-04-094, 2012-Ohio-5843 (reversal of conviction
where no evidence dog left property or was seen by warden outside of the property).
{ ¶ 31} It appears under the facts of this case it was the Appellant’s failure to
control, rather than failure to supervise, that led to the unfortunate incident.
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