State v. Coughlin

[Cite as State v. Coughlin, 2019-Ohio-2143.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff - Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
DIANA COUGHLIN, : Case No. 18 CAC 09 0071
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County
Municipal Court, Case No. 18CRB
01211
JUDGMENT: Dismissed
DATE OF JUDGMENT: May 30, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MELISSA SCHIFFEL BRIAN M. ZETS
Delaware City Prosecutor's Office DAVID C. MOSER
70 N. Union Street Isaac Wiles Burkholder & Teeter, LLC
Delaware, Ohio 43015 Two Miranova Place, Suite 700
Columbus, Ohio 43215
Delaware County, Case No. 18 CAC 09 0071 2
Baldwin, J.
{¶1} Diana Coughlin appeals the August 15, 2018 decision of the Delaware
County Municipal Court finding her guilty of a failure to keep dogs under reasonable
control, a violation of R.C. 955.22(C) and a minor misdemeanor. Appellant is the City of
Delaware.
STATEMENT OF FACTS AND THE CASE
{¶2} Robert Fitzpatrick was applying fertilizer to the appellant’s lawn when he
was attacked and bitten by four dogs while he was working within a fenced-in area
purportedly constructed for the use of the dogs. Appellant was charged and convicted of
failing to keep the dogs under control and she now contends there was insufficient
evidence to support the conviction and that the trial court erroneously applied the terms
of R.C. 955.22.
{¶3} Robert Fitzpatrick had been to appellant’s property on six prior occasions in
the course of his employment with a landscaping company and he followed the same
procedure on this date. The property was large and required the efforts of two individuals
to complete the job. Appellant’s property was protected by a gated entrance. Someone
at appellant’s residence would grant Mr. Fitzpatrick access after he pressed a buzzer at
the gate to be admitted. He and his co-worker would enter the property, park their
vehicles and begin work. The landscapers would begin fertilizing on opposite sides of the
property and would meet near the middle when finished. At his prior visits to the property,
Mr. Fitzpatrick noticed that the dogs would be in the fenced area when he arrived and
would be taken inside shortly after he arrived. Once they were inside he would fertilize
the area within the fence.
Delaware County, Case No. 18 CAC 09 0071 3
{¶4} He followed the same procedure on April 27, 2018 and he remembered that
he could still hear the dogs barking when he entered the fenced area. The dogs were
always barking loudly, even when they were in the house, presumably because they could
see Mr. Fitzpatrick through the windows in the back of the home. Mr. Fitzpatrick noticed
a change in the tone of the barks, and as he turned he saw that someone had released
the dogs into the fenced area and they were heading toward him. He braced for the
impact and received several bite wounds. Someone came from the home and retrieved
the dogs and Mr. Fitzpatrick, after recovering, finished the application.
{¶5} Once he completed the work, Mr. Fitzpatrick called his supervisor and
reported the dog bite incident. His supervisor directed him to visit an urgent care center
where he was treated and released. The urgent care center reported the dog bite to the
county warden and the warden issued a citation after visiting the appellant’s property.
{¶6} The charges were presented at a bench trial and appellant was found guilty
of a violation of R.C. 955.22(C), which states that “no owner, keeper, or harborer of any
dog shall fail at any time to *** [k]eep the dog under the reasonable control of some
person.” Appellant was fined $75.00 plus all court costs and fees. Offered time to pay,
the appellant chose to pay the fine and costs that same day.
{¶7} Appellant filed a timely notice of appeal and submitted two assignments of
error:
{¶8} “I. THE TRIAL COURT ERRED BY FINDING APPELLANT GUILTY OF
VIOLATING R.C. 955.22(C)(2) BECAUSE HER CONVICTION WAS NOT SUPPORTED
BY SUFFICIENT EVIDENCE.”
Delaware County, Case No. 18 CAC 09 0071 4
{¶9} “II. THE TRIAL COURT ERRED BY NOT CONSTRUING THE LANGUAGE
OF R.C. 955.22(C) IN FAVOR OF APPELLANT TO PROVIDE THAT ONLY ONE OR
THE OTHER OF THE STATUTE'S SUBSECTIONS MUST BE COMPLIED WITH TO
AVOID VIOLATING THE STATUTE.”
ANALYSIS
{¶10} When a criminal defendant has voluntarily paid the fine or completed the
sentence for the offense, an appeal is moot when no evidence is offered from which an
inference can be drawn the defendant will suffer some collateral disability or loss of civil
rights from such judgment or conviction. State v. Berndt, 29 Ohio St.3d 3, 4, 504 N.E.2d
712, 713 (1987), as quoted by State v. Wilson, 41 Ohio St.2d 236, 70 O.O.2d 431, 325
N.E.2d 236, syllabus (1975). The burden of presenting evidence of a “substantial stake
in the judgment of conviction” is upon the defendant. Id.{¶11} A person convicted of a felony has a substantial stake in the judgment of
conviction which survives the satisfaction of the sentence imposed; therefore, an appeal
challenging a felony conviction is not moot even if the entire sentence has been satisfied
before the matter is heard on appeal. State v. Golston, 71 Ohio St.3d 224, 1994-Ohio-
109, 643 N.E.2d 109, syllabus, distinguishing Berndt, supra; Wilson, supra.
{¶12} Appellant herein was convicted only of a minor misdemeanor, and has
voluntarily paid the fine and all costs. Upon review of the record, we find appellant has
made no demonstration of collateral disability or loss of civil rights from the conviction.
Delaware County, Case No. 18 CAC 09 0071 5
{¶13} Accordingly, we find the appeal is moot, and is therefore dismissed.
By: Baldwin, J.
Wise, John, P.J. and
Wise, Earle, J. concur.