[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Jones, Slip Opinion No. 2019-Ohio-5159.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.




                          SLIP OPINION NO. 2019-OHIO-5159
              THE STATE OF OHIO, APPELLANT, v. JONES, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Jones, Slip Opinion No. 2019-Ohio-5159.]
Criminal law—Dogs—R.C. 955.22—Sufficiency of the evidence—Prior dangerous-
        dog designation not required before person may be prosecuted for failing
        to control or confine a dangerous dog—Prosecution may prove dog’s
        dangerousness at trial—State failed to present sufficient evidence that dog
        was dangerous—Court of appeals’ judgment vacating conviction affirmed.
    (No. 2018-0601—Submitted May 8, 2019—Decided December 17, 2019.)
              CERTIFIED by the Court of Appeals for Hamilton County,
                             No. C-160908, 2018-Ohio-565.
                                    _________________
        STEWART, J.
        {¶ 1} In this certified-conflict case, we decide whether the “dangerous dog”
element of R.C. 955.22’s dangerous-dog laws requires that the dog in question have
                             SUPREME COURT OF OHIO




been previously designated as “dangerous,” as defined by R.C. 955.11(A)(1)(a),
pursuant to the procedures set forth in R.C. 955.222 before the state may prosecute
a person for violating R.C. 955.22(D). Here, the First District Court of Appeals
concluded that a prior designation as a dangerous dog is a prerequisite to its owner
being prosecuted for failing to confine a dangerous dog in violation of R.C.
955.22(D). 2018-Ohio-565, 95 N.E.3d 440. In contrast, the Fifth District Court of
Appeals has determined that the state may establish the dangerous-dog element by
proving that the dog is “dangerous” without offering proof of any previous
designation. State v. Crocker, 5th Dist. Coshocton No. 2012 CA 0021, 2013-Ohio-
3100. The Fifth District held that the state may prove “dangerousness” as an
element of the offense at trial, without the dog in question having been previously
designated as dangerous through some other process. Further, it held that the acts
of the dog qualifying it as “dangerous” pursuant to R.C. 955.11(A)(1)(a) may have
occurred simultaneously with the events giving rise to the R.C. 955.22 dangerous-
dog prosecution. See id. at ¶ 14, 31-32.
       {¶ 2} We recognized that a conflict exists and accepted the state’s appeal
on the following question of law: “Must a dog have been previously designated as
a ‘dangerous dog’ under Chapter 955 of the Ohio Revised Code before its owner
may be prosecuted for a violation of R.C. 955.22?” 153 Ohio St.3d 1428, 2018-
Ohio-2418, 100 N.E.3d 445. We hold that a prior designation of dangerousness
pursuant to R.C. 955.222 or otherwise is not a prerequisite to prosecution for failing
to abide by R.C. 955.22’s dangerous-dog laws. Instead, where the state has
probable cause to believe the dog in question is dangerous, based on prior actions
of the dog that meet the definition contained in R.C. 955.11(A)(1)(a), the state may
initiate prosecution and prove the dog’s dangerousness at trial along with the other
elements of the offense.
       {¶ 3} In the present case, however, we find that the state failed to present
sufficient evidence that the dog in question was in fact “dangerous.” Accordingly,




                                           2
                                January Term, 2019




we answer the certified-conflict question in the negative but affirm the judgment of
the First District Court of Appeals for reasons that are different from those
announced in its opinion.
                 I. FACTS AND PROCEDURAL HISTORY
       {¶ 4} Appellee, Joseph Jones, was walking his dog near his Cincinnati
apartment when he unleashed the dog to allow it to protect him from an approaching
stray dog. Jones’s dog and the stray interacted without incident. As Jones was
walking back to his apartment, the two dogs proceeded toward a woman, Alyssa
Rushing, who had just exited the building with her dog. According to Jones, he
then re-leashed his dog and the stray attacked Rushing’s dog. Rushing, however,
claimed that Jones’s dog bit her on the wrist and hand, pulling her to the ground,
while the stray dog attacked her dog. Jones assisted in separating his dog from
Rushing and also in freeing her dog from the stray. Both Rushing and her dog
sustained bite wounds.
       {¶ 5} The state charged Jones with failing to confine a dangerous dog, in
violation of R.C. 955.22(D), a fourth-degree misdemeanor, which, among other
things, prohibits an owner of a dangerous dog from removing the dog’s leash while
in public. The case was heard in the Hamilton County Municipal Court, where
Jones was eventually tried and convicted. The court sentenced him to a 30-day jail
term, suspended on the condition that he successfully complete six months of
nonreporting probation and pay a $100 fine and court costs.
       {¶ 6} On direct appeal, Jones argued that the state failed to present sufficient
evidence to sustain a conviction for failure to confine a dangerous dog because his
dog had never been designated as a dangerous dog prior to the state charging him
with the offense. According to Jones, the dangerous-dog element of the offense is
established only through proof of a separate prior legal action that results in a dog
being designated a “dangerous dog” by the government. He explained that the
government can secure a prior formal designation by following the procedures




                                          3
                              SUPREME COURT OF OHIO




outlined in R.C. 955.222—a related statute that provides a civil notice and hearing
process for designating dogs as dangerous when there is reason to believe that the
dog meets the definition of “dangerous dog” contained in R.C. 955.11(A)(1)(a).
Jones argued that R.C. 955.22’s dangerous-dog laws do not apply to a person unless
that person’s dog has previously been designated “dangerous” by the government
in accordance with the process set forth in R.C. 955.222 or alternatively, by a judge
at an earlier proceeding for failure to confine that dog.
        {¶ 7} The state countered that the dangerous-dog element of the offense
does not require a dog to have been previously designated as dangerous pursuant to
R.C. 955.222 or any other judicial proceeding. The state maintained that the
element can be proven at trial by introducing evidence that the dog’s conduct
satisfies the “dangerous dog” definition contained in R.C. 955.11(A)(1)(a), with no
need for a prior formal designation under R.C. 955.222. In support of its position,
the state cited Crocker, 2013-Ohio-3100, the conflict case on appeal. In Crocker,
the Fifth District upheld a conviction under one of R.C. 955.22’s dangerous-dog
provisions without requiring proof of a prior dangerous-dog designation. Instead,
the court held that the state was permitted to present evidence at trial to prove that
the dog was dangerous as defined by R.C. 955.11(A)(1)(a). Id. at ¶ 31.
        {¶ 8} The First District agreed with Jones. In reversing his conviction, the
court held that a previous dangerous-dog designation “is a prerequisite to finding a
violation of the R.C. 955.22(D).” 2018-Ohio-565, 95 N.E.3d 440, at ¶ 10. The
court held that such a designation “is an element of the offense” and, as such, could
not be satisfied by presenting evidence at trial that the dog was dangerous. Id. The
appellate court’s rationale was premised largely on due-process concerns pertaining
to fairness and notice. In particular, the First District wrote that a prior designation
is required because it serves to provide the owner with notice that he must confine
his dangerous dog as required by R.C. 955.22(D). Id. In arriving at its conclusion,
the First District relied on our decision in State v. Cowan, 103 Ohio St.3d 144,




                                           4
                                January Term, 2019




2004-Ohio-4777, 814 N.E.2d 846, and the legislature’s subsequent enactment of
R.C. 955.222 and its notice and hearing requirements. Id.
       {¶ 9} The state filed a motion to certify a conflict between districts, arguing
that the underlying decision in this case conflicts with the Fifth District Court of
Appeals’ decision in Crocker. The First District granted the state’s motion to
certify a conflict. We recognized that a conflict exists and accepted the appeal, 153
Ohio St.3d 1428, 2018-Ohio-2418, 100 N.E.3d 445.
                                  II. ANALYSIS
                             A. Statutory framework
       {¶ 10} Notwithstanding the strong emotional bonds that often form between
people and their dogs, dogs are considered personal property in Ohio and, as such,
are subject to regulation pursuant to the state’s police power. Cowan at ¶ 9. R.C.
Chapter 955, aptly titled “Dogs,” contains numerous laws on the ownership and
treatment of dogs, which range from the details of licensing, selling, and
impounding them to broader physical-control requirements. Additionally, the
chapter defines specific legal terms, such as “nuisance dog,” “dangerous dog,” and
“vicious dog,” see R.C. 955.11, and outlines penalties for noncompliance with its
laws, see R.C. 955.99.
       {¶ 11} One of the sections at issue here, R.C. 955.22, dictates how an
owner, keeper, or harborer of a dog must confine that dog if it is a dangerous dog,
see division (D), and requires the owner, keeper, or harborer of a dangerous dog to
obtain liability insurance if ordered by a court, see division (E). Additionally, R.C.
955.99(G) enhances the penalty for failing to confine or control one’s dog if it is a
dangerous dog. See R.C. 955.22(C) (establishing general requirements for
confining and controlling “any dog,” irrespective of whether that dog falls under
one of the specific designations set forth in R.C. 955.11). R.C. 955.22 uses the
same definition of “dangerous dog” as that contained in 955.11(A)(1)(a), which
defines a “dangerous dog” as one that, without provocation, has done any of the




                                          5
                                   SUPREME COURT OF OHIO




following: (1) caused a non-serious1 injury to a person, (2) killed another dog, or
(3) has been the subject of a third or subsequent violation of R.C. 955.22(C).2
         {¶ 12} A separate section of R.C. Chapter 955, R.C. 955.222, provides a
means by which a dog warden or other authorized official may designate a dog as
“dangerous” when there is reasonable cause to believe that the dog meets the R.C.
955.11(A)(1)(a) definition. See R.C. 955.222(B) and (F). If a dog warden chooses
to exercise his or her authority to designate a dog as dangerous, then the warden
must notify the dog’s owner, keeper, or harborer of both the designation and the
option to request a judicial hearing to contest it. R.C. 955.222(A) and (B). At the
hearing, the warden has the burden of proving the designation by clear and
convincing evidence. R.C. 955.222(C).
         {¶ 13} Here, the First District concluded that the dangerous-dog element of
R.C. 955.22’s dangerous-dog laws requires that the dog in question have been
previously designated a dangerous dog. The Fifth District, on the other hand,
allowed the state to introduce evidence other than a prior designation to prove
dangerousness—in that case, witness testimony establishing that the dog in
question killed another dog. Crocker, 2013-Ohio-3100, at ¶ 31-32. We conclude
that a prior designation of dangerousness is not a requirement for proving the
dangerous-dog element.



1. A dog that, without provocation, “has killed or caused serious injury to any person” is a “vicious”
dog. (Emphasis added.) R.C. 955.11(A)(6)(a). See also R.C. 955.11(A)(5) (defining “serious
injury”).

2. R.C. 955.22(C) provides: “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 do either of the following:

         (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.”




                                                  6
                                    January Term, 2019




                                B. Our decision in Cowan
        {¶ 14} The legislature’s enactment of R.C. 955.222, see 2012 Sub.H.B. No.
14, followed this court’s decision in Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777,
814 N.E.2d 846, in which we determined that the version of R.C. 955.22 then in
effect, see Sub.H.B. No. 350, Section 1, 148 Ohio Laws, Part II, 3597, 3597-3599,
violated procedural-due-process requirements because it allowed a dog warden to
label dogs as dangerous or vicious without providing a mechanism for the dog
owner to challenge the designation. In Cowan, Cowan’s neighbor informed the dog
warden that Cowan’s dogs had attacked his (the neighbor’s) wife. Id. at ¶ 1. The
deputy warden conducted a brief investigation and determined that Cowan’s dogs
were vicious based on the neighbor’s account of the attack.3 Id. The deputy warden
notified Cowan of the determination and also informed her that she must comply
with R.C. 955.22’s vicious-dog-confinement requirements. Id. After the deputy
warden was summoned to Cowan’s residence on two subsequent occasions in
response to complaints that her dogs were not confined as required by R.C. 955.22’s
vicious-dog provisions, the warden filed charges against Cowan for two counts of
failing to confine a vicious dog, at the time a violation of R.C. 955.22(D)(1), one
count of failing to obtain the required liability insurance for a vicious dog, at the
time a violation of R.C. 955.22(E), and one count of failing to restrain a dangerous
dog, a violation of R.C. 955.22(D)(2)(b). Id. at ¶ 2-3. After she was convicted on
all counts, Cowan appealed. Id. at ¶ 4-5. The Eleventh District Court of Appeals
reversed Cowan’s convictions, finding that R.C. 955.22 “unconstitutionally
deprived [Cowan] of her due process rights” because she had no opportunity to
contest the vicious-dog designations “prior to her property rights being


3. When we decided Cowan in 2004, the version of R.C. 955.22 in effect at that time contained
several provisions that applied to vicious dogs in addition to dangerous dogs. Since then, R.C.
955.22 has been amended to remove any reference to “vicious dogs.” 2012 Sub.H.B. No. 14.
However, R.C. 955.222(E) states that vicious dogs are subject to the same control and confinement
requirements as dangerous dogs under R.C. 955.22.




                                               7
                                   SUPREME COURT OF OHIO




substantially and adversely affected.” Id. at ¶ 5; see also State v. Cowan, 11th Dist.
Portage Nos. 2002-P-0029, 2002-P-0030, 2002-P-0031, 2003-Ohio-3547, ¶ 23.
         {¶ 15} In upholding the Eleventh District’s decision in Cowan, we
determined that the unilateral designation by a state actor, without any right to
contest or appeal the designation, violated due process because it did not provide
Cowan with “a right to be heard in a meaningful time and in a meaningful manner
on the issue of whether her dogs were vicious or dangerous.” Id. at ¶ 12-13. In
doing so, we rejected the state’s assertion that R.C. 955.22 afforded Cowan the right
to challenge her dog’s classification at her subsequent criminal trial and was thus
constitutional. Id. at ¶ 12. Our determination on this point was due in large part to
the fact that the state presented the deputy warden’s unilateral designation as
conclusive, essentially irrebuttable, proof to the jury that Cowan’s dogs were in fact
vicious. Id. at ¶ 14.4 Cowan had no meaningful opportunity to contest the
underlying designation at trial, and therein lay the constitutional problem. Id. at
¶ 14-15.
         {¶ 16} In this case, the First District relied on our decision in Cowan, as
well as the legislature’s subsequent enactment of R.C. 955.222, to support its
conclusion that Jones’s dog must have been formally designated “dangerous”
pursuant to R.C. 955.222 before Jones could be prosecuted. 2018-Ohio-565, 95
N.E.3d 440, at ¶ 10-11. Specifically, the court stated:



4. Additionally, this court raised concerns about how a delay in Cowan’s ability to challenge the
warden’s unilateral designation of her dogs as vicious or dangerous might affect her due-process
rights. Specifically, the court stated, “We find it inherently unfair that a dog owner must defy the
statutory regulations and become a criminal defendant, thereby risking going to jail and losing her
property, in order to challenge a dog warden’s unilateral decision to classify her property. The
statute does not provide appellee a right to be heard in a meaningful time and in a meaningful manner
on the issue of whether her dogs were vicious or dangerous.” Cowan at ¶ 13. We no longer have
this concern. With the advent of R.C. 955.222, a dog warden may no longer make a unilateral
determination that a dog is dangerous without first providing the owner, keeper, or harborer of the
dog with notice of the designation and notice of that person’s statutory right to contest the
designation at a timely civil hearing.




                                                 8
                                January Term, 2019




       If the designation were not [a] prerequisite, Jones would not have
       been put on notice as to the statutory requirements for confining his
       dog, or had the opportunity to challenge the designation and
       consequent restriction on his property rights. Any other
       interpretation of R.C. 955.22(D) would render R.C. 955.11
       superfluous and deprive dog owners of their statutory and
       constitutional rights to due process. The Ohio Supreme Court
       already said as much in [Cowan], when it struck down a former
       version of the “dangerous dog statute” for infringing upon the due
       process rights of dog owners for the same reason, leading to the
       enactment of R.C. 955.222.


Id. at ¶ 10. We find the First District’s concerns about notice, and its reliance on
Cowan and R.C. 955.222, to be misplaced.
              C. Due process does not require a prior designation
       {¶ 17} To begin, we have acknowledged on many occasions that due
process requires notice and fair warning of the conduct proscribed by a penal
statute. See generally Akron v. Rowland, 67 Ohio St.3d 374, 381, 618 N.E.2d 138
(1993) (“Due process requires that the terms of a criminal statute be reasonably
clear and definite * * * ”). But we do not agree with the First District’s statement
that R.C. 955.22 requires a prior dangerous-dog designation for Jones to have been
put on notice of the statutory requirements for confining his dog and his attendant
criminal liability for failing to do so. R.C. 955.11(A)(1)(a) explicitly defines the
term “dangerous dog” as one that “has done any of the following: (i) [c]aused
injury, other than killing or serious injury, to any person; (ii) [k]illed another dog;
[or] (iii) been the subject of a third or subsequent violation division (C) of section
955.22 * * * .” We determine that R.C. 955.11(A)(1)(a)’s use of the past tense,




                                          9
                             SUPREME COURT OF OHIO




“has done,” when referring to the dog’s conduct, means that only the dog’s prior
conduct can be used to define it as a dangerous dog. Accordingly, before a person
has any legal obligation to confine or control his dog as described by R.C. 955.22’s
dangerous-dog laws, the dog in question must have first done something that
qualifies it as a dangerous dog.
       {¶ 18} The statutory language makes clear that the element of
dangerousness contained in R.C. 955.22’s dangerous-dog provisions cannot be met
where the sole evidence of a dog’s dangerousness is an act that took place
contemporaneously with the failure-to-control-or-confine violation that is the
subject of the prosecution. Because the dangerous-dog designation turns on the
dog’s past behavior, the statute provides fair warning to a dog owner that he or she
may be subject to the dangerous-dog provisions of R.C. 955.22.
       {¶ 19} Further, our decision in Cowan turned on whether a state agent could
make a unilateral legal determination, accompanied by relatively burdensome
obligations for the owner of the dog, without any procedural oversight. We held
that this violated due process, but never concluded, as the appellate court suggests,
that the government must have formally designated a dog as “dangerous” before
alleging that a person has violated the pertinent parts of R.C. 955.22. See 2018-
Ohio-565, 95 N.E.3d 440, at ¶ 13. It appears that R.C. 955.222 was adopted by the
legislature in the years after Cowan as a means of providing a constitutionally sound
way for a dog warden or other authorized official to designate dogs as dangerous
prior to, and independent of, the criminal process. But neither our decision in
Cowan nor the legislature’s subsequent enactment of R.C. 955.222, which
establishes a procedure for designating a dog as dangerous, requires that the
government have previously designated a dog as dangerous before initiating a
prosecution for a violation of R.C. 955.22’s dangerous-dog laws. Rather, the state
may, without a prior designation pursuant to R.C. 955.222 or otherwise, prosecute
and prove the element of dangerousness at a trial for a violation of R.C. 955.22. If




                                         10
                                January Term, 2019




the government can offer facts showing that a dog’s conduct before the events
giving rise to the charged offense meets the definition of “dangerous” that is
contained in R.C. 955.11, then the element of dangerousness is satisfied; and of
course, the owner, keeper, or harborer in such a situation can challenge the state’s
proof in the ordinary course of litigation.
          D. Statutory language does not require a prior designation
       {¶ 20} Contrary to Jones’s contention, nothing in R.C. Chapter 955
suggests that a dog must be formally designated as a dangerous dog before an
owner, keeper, or harborer can be prosecuted for noncompliance with R.C. 955.22’s
dangerous-dog provisions. Had the legislature intended a prior designation to be a
prerequisite to prosecution, it could have inserted this language into R.C. 955.222
or R.C. 955.11(A)(1)(a) or elsewhere. It did not. This is important because R.C.
955.11 and R.C. 955.22 were amended in 2012 in the same legislative act that
enacted R.C. 955.222’s notice and hearing process. See 2012 Sub.H.B. No. 14.
The legislature was therefore able to insert a prior-designation requirement into the
statutory scheme had it desired to do so.
                          E. Sufficiency of the evidence
       {¶ 21} Having determined that a prior dangerous-dog designation is not
required in order to proceed with a prosecution under R.C. 955.22, and having
determined that the prosecution may prove the dog’s dangerousness at trial, we now
consider whether the state met its burden of proof in this case.
       {¶ 22} In order to prove that Jones’s dog was a “dangerous dog” within the
meaning of R.C. 955.22, the state had to present evidence that the dog, without
provocation, had done any of the following: (1) caused a non-serious injury to
another person, (2) killed another dog, or (3) been the subject of a third or
subsequent violation of R.C. 955.22(C). See R.C. 955.11(A)(1)(a).
       {¶ 23} At trial, the state introduced evidence of a Facebook post, allegedly
written and posted by Jones, that contained pictures of his dog and several




                                            11
                             SUPREME COURT OF OHIO




comments underneath. One commenter stated, “I love how he walks thru crowds
like no ones outside lol good temperament.” Jones replied, “Yeah I had to train em
to do that. He use to try n smell or bite everybody.” Further, Jones testified that at
the time of the incident his dog was in “protection training” classes, in which the
dog learned, essentially, how to protect Jones from danger. According to Jones’s
testimony, the protection-training courses were intended to teach his dog how to
attack and bite on command and “never let go.”
       {¶ 24} We conclude that the state failed to meet its burden of offering
sufficient evidence to sustain a conviction for failure to control a dangerous dog.
The facts related above do not establish beyond a reasonable doubt that, prior to
biting Ms. Rushing, Jones’s dog ever caused injury to a person, killed another dog,
or was the subject of three or more violations under R.C. 955.22(C). See State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
                               III. CONCLUSION
       {¶ 25} We answer the certified question by holding that a prior dangerous-
dog designation is not required before a person may be prosecuted for failing to
control or confine a dangerous dog. Here, however, the state failed to present
sufficient evidence of prior acts of Jones’s dog that would render him dangerous
under R.C. 955.11(A)(1)(a). Accordingly, we maintain the First District’s reversal
of Jones’s conviction, but for the reasons stated in this opinion.
                                                                 Judgment affirmed.
       O’CONNOR, C.J., and WAITE, DEWINE, and DONNELLY, JJ., concur.
       KENNEDY, J., concurs in judgment only, with an opinion joined by FRENCH,
J.
       CHERYL L. WAITE, J., of the Seventh District Court of Appeals, sitting for
FISCHER, J.
                               _________________
       KENNEDY, J., concurring in judgment only.




                                         12
                                January Term, 2019




       {¶ 26} When interpreting a statute, we give plain and ordinary meaning to
all the words and phrases in the statute, State v. Singer, 50 Ohio St.2d 103, 108, 362
N.E.2d 1216 (1977), and give effect to all parts of the statutory scheme, United Tel.
Co. of Ohio v. Limbach, 71 Ohio St.3d 369, 372, 643 N.E.2d 1129 (1994). Because
the majority’s holding that a “prior dangerous-dog designation is not required
before a person may be prosecuted for failing to control or confine a dangerous
dog,” majority opinion at ¶ 25, fails to give effect to the plain and unambiguous
meaning of all the words chosen by the legislature and fails to give effect to all
parts of the statutory scheme found in R.C. Chapter 955, I disagree with its
reasoning. Contrary to the majority, I would answer the certified question in the
affirmative: a “dangerous-dog” designation, pursuant to R.C. 955.222, is a
prerequisite to prosecuting an individual for failing to confine or control the dog. I
nevertheless concur in the court’s judgment, as I would affirm the judgment of the
First District Court of Appeals. Therefore, I concur in judgment only.
                             Statutory Interpretation
       {¶ 27} This case presents a narrow certified-conflict question whether a dog
must have been previously designated a “dangerous dog” under R.C. Chapter 955
before its owner may be prosecuted for a crime pursuant to R.C. 955.22 for failing
to confine or control the dog. The facts of the case are undisputed. See majority
opinion at ¶ 17. To resolve the question presented, we begin at a familiar place,
statutory construction.
       {¶ 28} Our duty when construing a statute is to determine and give effect to
the intent of the General Assembly as expressed in the language it enacted. Griffith
v. Aultman Hosp., 146 Ohio St.3d 196, 2016-Ohio-1138, 54 N.E.3d 1196, ¶ 18;
Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 20.
“When the statutory language is plain and unambiguous, and conveys a clear and
definite meaning, we must rely on what the General Assembly has said.” Jones v.




                                         13
                               SUPREME COURT OF OHIO




Action Coupling & Equip., Inc., 98 Ohio St.3d 330, 2003-Ohio-1099, 784 N.E.2d
1172, ¶ 12, citing Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 553,
721 N.E.2d 1057 (2000).
       {¶ 29} “Where a statute defines terms used therein, such definition controls
in the application of the statute * * *.” Good Samaritan Hosp. of Dayton v.
Porterfield, 29 Ohio St.2d 25, 30, 278 N.E.2d 26 (1972), citing Terteling Bros., Inc.
v. Glander, 151 Ohio St. 236, 85 N.E.2d 379 (1949), and Woman’s Internatl.
Bowling Congress, Inc. v. Porterfield, 25 Ohio St.2d 271, 267 N.E.2d 781 (1971).
Terms that are undefined in a statute are accorded their common, everyday
meaning. See R.C. 1.42.
       {¶ 30} The crime that appellee, Joseph Jones, was convicted of—failing to
confine a dangerous dog, in violation of R.C. 955.22(D)—is part of the broad
statutory scheme in R.C. Chapter 955, covering, among other subjects, dog
registration, kennel registration, the appointment of dog wardens, confinement and
control of dogs, and assistance dogs. Therefore, our interpretation of the intent of
the General Assembly in enacting R.C. 955.22(D) must consider, and cannot render
meaningless, other parts of the statutory scheme. Limbach, 71 Ohio St.3d at 372,
643 N.E.2d 1129. We must, when construing this provision, give effect to the entire
statutory scheme.
       {¶ 31} R.C. 955.22(D)’s confinement and restraint requirements apply only
to owners of dangerous dogs. The legislature defined “dangerous dog” in R.C.
955.11(A)(1) as


                 (a) * * * a dog that, without provocation * * * has done any
       of the following:
                 (i) Caused injury, other than killing or serious injury, to any
       person;




                                           14
                                January Term, 2019




               (ii) Killed another dog;
               (iii) Been the subject of a third or subsequent violation of
       division (C) of section 955.22 of the Revised Code.


(Emphasis added.)
       {¶ 32} The verb “has done” is present-perfect tense and indicates that the
behavior by the dog must have previously occurred at some unspecified time. See
Robinson v. Ohio State Univ., 10th Dist. Franklin No. 81AP-517, 1982 WL 4144,
*2 (Apr. 29, 2019). Therefore, it is only after the dog has first engaged in one of
the behaviors set forth in R.C. 955.22(A)(1)(a)(i) through (iii) that the definition of
“dangerous dog” can apply to that dog. See State v. Smith, 104 Ohio St.3d 106,
2004-Ohio-6238, 818 N.E.2d 283, ¶ 18 (the use of “has been convicted of or
pleaded to” in the sexually-violent-predator specification “indicate[s] that at time
of indictment, the person has already engaged in a sexually violent offense”).
       {¶ 33} But here, the majority holds that the dangerous-dog determination
can occur simultaneously with the prosecution for failing to confine a dangerous
dog in violation of R.C. 955.22(D) as long as the “government can offer facts
showing that [the] dog’s conduct before the events giving rise to the charged
offense meets the definition of ‘dangerous.’ ” Majority opinion at ¶ 19. If that is
true, then why did the General Assembly provide a civil legal process in R.C.
955.222 by which a court may ultimately determine whether a dog is dangerous
and that also affords the owner of that dog a right of appeal?
       {¶ 34} The procedure by which a dog is designated a dangerous dog
provides that if the dog warden or authorized official “has reasonable cause to
believe a dog * * * is a * * * dangerous dog,” the owner shall be notified of the fact
that the warden or authorized person “has designated the dog a * * * dangerous
dog.” (Emphasis added.) R.C. 955.222(B)(1). If the owner disagrees with the




                                          15
                             SUPREME COURT OF OHIO




designation, he or she may then timely request a hearing, R.C. 955.222(B)(2),
which shall be conducted by the municipal or county court with territorial
jurisdiction over the owner, R.C. 955.222(A). At the hearing, the dog warden or
authorized person “has the burden of proving, by clear and convincing evidence,
that the dog is a * * * dangerous dog.” R.C. 955.222(C). Thereafter, if a dog is
designated a “dangerous dog,” the owner has a right to appeal the court’s
determination. Id.
       {¶ 35} The General Assembly did not define “designate” for purposes of
R.C. 955.222. “Designate” has varying definitions. The most relevant are (1) “to
distinguish as to class: denominate, identify, label” or (2) “to declare to be:
characterize.”    Webster’s Third New International Dictionary 612 (1986).
Therefore, by its plain and unambiguous terms, R.C. 955.222 provides that a dog
cannot be a dangerous dog until the process has been completed, either by the
owner’s failure to timely seek a hearing or by final judicial determination. It is only
after a dog is designated a “dangerous dog” that the owner of the dog is put on
notice that he or she is subject to the more stringent ownership and harboring
requirements of R.C. 955.22(D) and that a violation of those requirements may
subject the owner to criminal prosecution.
       {¶ 36} The majority states that “nothing in R.C. Chapter 955 suggests that
a dog must be formally designated as a dangerous dog” before its owner may be
prosecuted for violating R.C. 955.22. Majority opinion at ¶ 20. However, this
reading of the statute fails to give effect to the term “designate” as used in R.C.
955.222. As stated above, the common meaning of the word “designate” in this
context is to declare that something meets a specific class—here, placing certain
dogs into the class of “dangerous dogs.” Our role is to evaluate a statute “as a whole
and giv[e] such interpretation as will give effect to every word and clause in it. No
part should be treated as superfluous unless that is manifestly required, and the




                                          16
                                January Term, 2019




court should avoid that construction which renders a provision meaningless or
inoperative.” State ex rel. Myers v. Spencer Twp. Rural School Dist. Bd. of Edn.,
95 Ohio St. 367, 373, 116 N.E. 516 (1917). Statutes “ ‘may not be restricted,
constricted, qualified, narrowed, enlarged or abridged; significance and effect
should, if possible, be accorded to every word, phrase, sentence and part of an act.’
” Weaver v. Edwin Shaw Hosp., 104 Ohio St.3d 390, 2004-Ohio-6549, 819 N.E.2d
1079, ¶ 13, quoting Wachendorf v. Shaver, 149 Ohio St. 231, 78 N.E.2d 370 (1948),
paragraph five of the syllabus. Here, however, the majority’s determination does
not give effect to every word and clause in the statutory scheme.
       {¶ 37} Moreover, it appears that the majority has not thoroughly analyzed
R.C. 955.222 and, therefore, has failed to consider the impact of its holding on that
provision. If, as the majority contends, it is the dog’s past behavior that puts an
owner on notice of being subject to R.C. 955.22, majority opinion at ¶ 18, why
would the General Assembly have enacted R.C. 955.222(D), which requires that a
dog be confined or restrained pursuant to R.C. 955.22(D) until a court makes a final
dangerous-dog determination and during the appellate process. However, in this
case, under the majority’s holding, R.C. 955.222(D) is meaningless, as it would be
unnecessary to notify an owner of the duty to comply with R.C. 955.22(D) during
the R.C. 955.222 process since he should have started complying immediately after
the dog engaged in the behavior.
       {¶ 38} The effect of the majority’s holding also results in an inconsistent
application of other dangerous-dog requirements. Specifically, the owner of a
dangerous dog is required to obtain a registration certificate and place a tag on the
dog’s collar that identifies the dog as a dangerous dog, R.C. 955.22(E)(2); notify
the dog warden if the dog is loose or unconfined, bites a person, or attacks another
animal while off the owner’s property, R.C. 955.22(E)(3)(a) through (c); and notify




                                         17
                             SUPREME COURT OF OHIO




the county auditor within ten days if the dog is sold, given to another person, or
dies, R.C. 955.22(E)(4).
       {¶ 39} However, another part of R.C. 955.222(D) provides that an owner
“shall not be required to comply with any other requirements established in the
Revised Code that concern a * * * dangerous dog * * * until the court makes a final
determination and during the pendency of any appeal.”              Nevertheless, the
consequence of the majority’s holding is that an owner whose dog has engaged in
the behavior set forth in R.C. 955.11(A), but has not been subject to the R.C.
955.222 designation process, must comply with the “other requirements”
notwithstanding the General Assembly’s express intent that compliance with those
requirements shall not be required until there is a final judicial determination.
       {¶ 40} Because I find that giving effect to every word and phrase requires a
prior designation that a dog is a dangerous dog before an owner can be charged
with a crime for failing to control or confine a dangerous dog, I would answer the
certified conflict question in the affirmative and thus I disagree with the majority’s
reasoning. Nevertheless, because the majority affirms the appellate court on other
grounds, I concur in judgment only.
       FRENCH, J., concurs in the foregoing opinion.
                               _________________
       Paula Boggs-Muething, Cincinnati City Solicitor, Natalia S. Harris,
Cincinnati City Prosecutor, and Christopher Liu, Senior Assistant Prosecutor, for
appellant.
       Raymond T. Faller, Hamilton County Public Defender, and David
Hoffmann Assistant Public Defender, for appellee.
                               _________________




                                         18
