[Cite as Hansen v. Tuscarawas Cty., 2019-Ohio-4494.]


                                      COURT OF APPEALS
                                 TUSCARAWAS COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


MARSHALL HANSEN                                  :     JUDGES:
                                                 :     Hon. William B. Hoffman, P.J.
        Plaintiff - Appellant                    :     Hon. Craig R. Baldwin, J.
                                                 :     Hon. Earle E. Wise, J.
-vs-                                             :
                                                 :
COUNTY OF TUSCARAWAS, OHIO                       :     Case No. 2019 AP 01 0003
                                                 :
        Defendant - Appellee                     :     OPINION



CHARACTER OF PROCEEDING:                               Appeal from the New Philadelphia
                                                       Municipal Court, Case No. CVH
                                                       1800715




JUDGMENT:                                              Affirmed




DATE OF JUDGMENT:                                      October 31, 2019




APPEARANCES:

For Plaintiff-Appellant                                For Defendant-Appellee

MICHELA HUTH                                           ROBERT R. STEPHENSON II
PO Box 17                                              Assistant Tuscarawas County Prosecutor
Bolivar, Ohio 44612                                    125 East High Avenue
                                                       New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2019 AP 01 0003                                       2


Baldwin, J.

       {¶1}   Marshall Hansen appeals the decision of the New Philadelphia Municipal

Court finding that his dog was a dangerous dog as defined in R.C. 955.11(A)(1)(a)(i).

Appellee is the County of Tuscarawas.

                       STATEMENT OF FACTS AND THE CASE

       {¶2}   Appellant's dog, Zeus, bit three family members after an argument came to

a head. The dog had been restrained in the basement of the home but was released.

During the family argument, Appellant's brother allegedly acted in a way that Appellant

suggested that Zeus perceived as an attack. Appellant struggled with the dog to force

him to release his brother and the dog attacked him. Appellant's mother grabbed Zeus's

collar to pull from Appellant and the dog bit her.

       {¶3}   The Tuscarawas County Dog Warden (‘the Warden”) was called to the

scene by the local police department and discussed the facts with Appellant.          He

explained that Zeus must be quarantined and Appellant could keep him in the home or

he could be quarantined at the animal shelter. Appellant signed a release to have Zeus

confined at the animal shelter and originally intended to surrender the animal to the

county, who would have probably euthanized him as being unadoptable. Appellant

reconsidered and now keeps Zeus in the basement away from other family members.

       {¶4}   The Warden designated Zeus a dangerous dog pursuant to R.C.

955.11(A)(1)(a)(i) and Appellant requested a hearing on this designation pursuant to R.C.

955.222(C). The trial court held an evidentiary hearing regarding the dangerous dog

designation and found that the Warden had proven the facts by clear and convincing
Tuscarawas County, Case No. 2019 AP 01 0003                                          3


evidence and that Zeus was properly found to be a dangerous dog. Appellant filed a

timely appeal and submitted one assignment of error:

       {¶5}   “I.   THE   TRIAL    COURT      ERRED      IN   DESIGNATING       ZEUS     AS

DANGEROUS, BECAUSE THE EVIDENCE SHOWS ZEUS WAS PROVOKED, AND

THEREFORE THE JUDGMENT IS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE AND CONTRARY TO WELL-ESTABLISHED LAW.”

                                STANDARD OF REVIEW

       {¶6}   In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387,

1997–Ohio–52, 678 N.E.2d 541 Reversing a conviction as being against the manifest

weight of the evidence and ordering a new trial should be reserved for only the

“exceptional case in which the evidence weighs heavily against the conviction.” Id.

       {¶7}   We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 237 N.E.2d

212 (1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page.”

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260, 674 N.E.2d 1159.

       {¶8}   To the extent that the Appellant’s assignment of error requires us to interpret

R.C. 955.11 or any applicable law, our standard of review is de novo and our goal is to
Tuscarawas County, Case No. 2019 AP 01 0003                                           4


ascertain and give effect to the legislature's intent, as expressed in the plain meaning of

the statutory language. (Citations omitted.) State v. Pountney, 152 Ohio St.3d 474, 2018-

Ohio-22, 97 N.E.3d 478.

                                        ANALYSIS

       {¶9}   The Warden's designation of Zeus as a dangerous dog is subject to

challenge by Appellant upon request for a hearing. R.C. 955.222(C). The Warden has

the burden of proof at this hearing to establish, by clear and convincing evidence, that

Zeus is a dangerous dog. For purposes of this case, a “[d]angerous dog” means a dog

that, without provocation, and subject to division (A)(1)(b) of this section, has *** [c]aused

injury, other than killing or serious injury, to any person ***.” R.C. 955.11(A)(1)(a)(i).

“‘Without provocation’ means that a dog was not teased, tormented, or abused by a

person, or that the dog was not coming to the aid or the defense of a person who was not

engaged in illegal or criminal activity and who was not using the dog as a means of

carrying out such activity.” R.C. 955.11(A)(7).

       {¶10} The focal point of this case is whether the interaction between the victims

and Zeus can be characterized as provocation as that term is defined in R.C.

955.11(A)(7). The Warden had the burden of proof to establish by clear and convincing

evidence that Zeus caused one or all of the injuries without provocation. Because the

remaining elements of the charge were not disputed, our analysis is limited to review of

the facts to determine whether the trial court’s conclusion that there was clear and

convincing evidence the dog attacked without provocation was against the manifest

weight of the evidence.
Tuscarawas County, Case No. 2019 AP 01 0003                                          5


       {¶11} The terms “teasing,” “tormenting,” and “abusing” were defined for purposes

of R.C. 955.28(B), Ohio's dog-bite statute, and are set forth in 1 Ohio Jury Instructions

409.03, Section 5. “Teasing” means “to annoy or to trouble or worry persistently, to be

troublesome or to pester.” “Tormenting” is “conduct which provokes a greater annoyance

and implies some torture or pain,” and “[a]busing” is “mistreatment which includes some

physical injury or pain to the animal. We find that those definitions are likewise applicable

in this case, though we are addressing the application of R.C. 955.11 and not R.C. 955.28.

       {¶12} The Warden concluded that the evidence did not show that the dog had

been teased, tormented or abused based upon his interview of Appellant. Appellant did

not contend that Zeus had been teased, tormented or abused, but suggested that the

three day old altercation in the home and his brother's action, raising his arms as if to

strike Appellant, triggered the dog's reaction. The trial court did not rely on this incident

in its holding, presumably because it found the attack on the brother was provoked by

him and that the dog was “coming to the aid or the defense of a person who was not

engaged in illegal or criminal activity and who was not using the dog as a means of

carrying out such activity.”

       {¶13} Appellant punched the dog in the head to force it to release its grip of his

brother and it is reasonable to conclude that Appellant’s actions may have produced some

pain. We find that the trial court adhered to the holding in Pflaum v. Summit Cty. Animal

Control, 9th Dist. No. 28335, 2017-Ohio-4166, 92 N.E.3d 132, ¶ 17 where that court

concluded that "It is axiomatic that striking a dog and aggressively pulling on its collar

would, at a minimum, constitute tormenting." In Pflaum the court held that the victim

provoked the dog by pulling on its collar and punching it in an attempt to rescue a smaller
Tuscarawas County, Case No. 2019 AP 01 0003                                        6


dog that had been attacked. In this case, Appellant grabbed the dog’s head and punched

him to force him to release his brother and the dog turned on Appellant and bit him. We

find the evidence supported the trial court’s disregard of that attack as provoked and thus

exempt from the definition of a dangerous dog.

      {¶14} Zeus next attacked the Appellant’s mother as she attempted to pull the dog

away from Appellant. The attack on Appellant's mother is materially different than the

attack in Pflaum and that precedent is inapplicable to the facts before this court. When

the dog bit Appellant, his mother pulled on the dog's collar to get him away from Appellant

and the animal turned and bit her. The appellant's mother did not strike or punch the dog,

but only pulled on its collar, distinguishing this case from the Pflaum case. Collars are

typically used to control dogs and there is no evidence in the record that Appellant's

mother used the collar to harm the dog in any way or took any other action that could be

characterized as teasing, tormenting or abusing the dog. The trial court concluded that

the attack on the Appellant’s mother was not provoked and that the evidence regarding

that attack provided clear and convincing evidence that Zeus was a dangerous dog.
Tuscarawas County, Case No. 2019 AP 01 0003                                        7


      {¶15} We hold that the trial court's holding that " the respondent has proven, by

clear and convincing evidence, that Zeus attacked the petitioner's mother without legally

sufficient provocation" and that Zeus is a dangerous dog is not against the manifest

weight of the evidence and is not in violation of established law. Appellant’s assignment

of error is overruled and the decision of the New Philadelphia Municipal Court is affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Wise, Earle, J. concur.
