[Cite as Dayton v. Patrick, 2018-Ohio-196.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 CITY OF DAYTON                                     :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 27524
                                                    :
 v.                                                 :   Trial Court Case No. 2016-CRB-5245
                                                    :
 LAQUISHA PATRICK                                   :   (Criminal Appeal from Municipal Court)
                                                    :
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                           Rendered on the 19th day of January, 2018.

                                               ...........

SHAWN CRAWFORD, Atty. Reg. No. 0095634, Assistant City of Dayton Prosecutor, 335
West Third Street, Room 372, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

ADAM JAMES STOUT, Atty. Reg. No. 0080334, 5335 Far Hills Avenue, Suite 109,
Dayton, Ohio 45429
      Attorney for Defendant-Appellant

                                              .............




TUCKER, J.
                                                                                             -2-




         {¶ 1} Laquisha Patrick is the owner of a dog, Nina. Patrick, on July 21, 2016, was

at work leaving Nina with her 14 year old son. Nina, while supervised by Patrick’s 14

year old son, attacked a neighbor’s cat resulting in the cat’s death. Patrick, as a result,

was charged with a violation of Dayton Revised Code General Ordinance (R.C.G.O.)

91.50(A)(5). The trial court, following a bench trial, found Patrick guilty with this appeal

following. We find, contrary to Patrick’s argument, that her son’s conduct does not

insulate her from criminal liability for a violation of R.C.G.O. 91.50(A)(5). We further find

that the trial court did not err when it rejected Patrick’s affirmative trespass defense.



                                              Facts

         {¶ 2} It is undisputed that on July 21, 2016 Patrick owned Nina and that on this

date Nina attacked and killed a neighbor’s cat resulting in Patrick being charged with a

violation of R.C.G.O. 91.50(A)(5). However, the circumstances leading to Nina’s attack

were disputed at trial. Patrick lives at 1253 Vernon Drive, living there with her 14 year

old son, her daughter, and her husband. Sisters Patricia and Elizabeth Cooper1, along

with their brother, live at 1254 Vernon Drive which is located directly across the street

from Patrick’s home. It is not disputed that when Nina attacked the feline, Patrick was

at work leaving Nina with her son.

         {¶ 3} Patricia testified that late in the afternoon on July 21 she left her home to

walk her dog. Patricia testified that as she began her walk she saw Patrick’s children in

their front yard. Patricia indicated that as she was walking she looked back and saw an


1
    The Cooper sisters, for the sake of clarity, will be referred to by their first names.
                                                                                          -3-


unrestrained Nina run across the street into her yard and attack Elizabeth’s cat resulting

in the cat’s death.

       {¶ 4} Patrick’s son, in contrast, testified that Nina was restrained by a long chain.

One end of the chain, according to the 14 year old, was attached to a post located at the

outer edge of the home’s front porch with the chain’s other end attached to Nina’s collar.

The chain, by the son’s reckoning, was long enough to allow Nina to roam, but not leave,

the home’s small front yard. Patrick’s son finally testified that Elizabeth’s cat came into

his front yard prompting Nina’s attack. A bench trial was conducted on October 3, 2016.

The trial court, in a written decision filed on January 17, 2017, found Patrick guilty of the

charged offense. This appeal followed.



                                         Analysis

       {¶ 5} Patrick’s sole assignment of error is as follows:

       [PATRICK’S] CONVICTIONS [SIC] IS AGAINST THE MANIFEST WEIGHT

       OF THE EVIDENCE AND IS WITHOUT SUFFICIENT EVIDENCE WHEN

       A THIRD PARTY INTERVENED IN RELEASING [PATRICK’S] DOG FROM

       HER HOUSE.

Patrick presents two arguments in support of her assignment of error – first, that she did

not suffer or permit Nina to attack Elizabeth’s cat and second, that the trial court erred by

not accepting Patrick’s trespass defense. These arguments are discussed below.



                               Suffer or Permit Assertion

       {¶ 6} R.C.G.O. 91.50(A) states in relevant part as follows:
                                                                                          -4-


       No person owning, keeping, harboring, maintaining, or having the care,

       custody, or control of a dog shall suffer or permit such dog to:

       ***

       (5) Bite or otherwise cause physical harm to any other person, domestic

       animal, or feline.

       {¶ 7} Patrick asserts that because she was not at home and it was her 14 year

old son who allowed Nina to attack Elizabeth’s cat that she did not suffer or permit the

attack, and, as such, the trial court’s suffer or permit conclusion – as reflected by the

verdict - is not supported by sufficient evidence and it is against the manifest weight of

the evidence. Though couched as a sufficiency and manifest weight issue, Patrick’s

argument, upon reflection, is a legal argument that a dog owner cannot suffer or permit a

dog’s attack when he is not present and the animal is under the control of another person.

       {¶ 8} We have consistently held that R.C.G.O. 91.50(A)(5) is a strict liability

provision. State v. Thaler, 2d Dist. Montgomery No. 22579, 2008-Ohio-5525; State v.

Breitenstein, 2d Dist. Montgomery No. 24325, 2011-Ohio-4450; State v. Smith, 2d Dist.

Montgomery No. 25260, 2013-Ohio-123 (analysis of Englewood Ordinance 618.17);

State v. McGuire, 2d Dist. Montgomery No. 25455, 2013-Ohio-3280. As we noted in

Breitenstein, R.C.G.O. 91.50(A)(5) “criminalizes an owner’s suffering or permitting his dog

to bite. This is the act (not the level of culpability) that the city must prove. But because

the ordinance imposes strict liability, the city need not prove (as it would for a non-strict

liability offense) that the act was done with a culpable mental state…” Breitenstein at ¶

11.

       {¶ 9} This strict liability discussion does not, however, resolve the question of
                                                                                           -5-


whether, in this case, Patrick suffered or permitted Nina’s attack upon the feline. Our

case law is helpful in the resolution of this issue.

       {¶ 10} In Breitenstein, Breitenstein’s neighbor entered his home while he was

asleep and took Breitenstein’s dog from the home. The neighbor, according to the

decision, often engaged in this conduct. The dog, while in the neighbor’s control, bit an

individual resulting in Breitenstein and the neighbor being charged with violating R.C.G.O.

91.50(A)(5).     The neighbor pleaded guilty, but Breitenstein’s case concluded with a

bench trial with Breitenstein asserting that since he was asleep when the attack occurred,

the city failed to establish his culpability for the dog’s conduct. The trial court accepted

Breitenstein’s argument finding him not guilty based upon the city’s failure “to prove the

ordinance’s culpability element.” Breitenstein at ¶ 2. The city appealed the trial court’s

determination.

       {¶ 11} Breitenstein, on appeal, conceded our case law, specifically State v. Thaler,

establishes that R.C.G.O. 91.50(A) is a strict liability ordinance, but he requested

reconsideration of this conclusion. We declined this invitation concluding that the facts

of the case satisfied “the essential elements of R.C.G.O. 91.50(A)(5)[,]” and, as such, the

“municipal court should have concluded that Breitenstein was strictly liable for the

offense.” Breitenstein, 2d Dist. Montgomery No. 24325, 2011-Ohio-4450, ¶ 13.

       {¶ 12} Judge Froelich wrote a concurring opinion in which he indicated that he saw

no reason to reconsider our conclusion that R.C.G.O. 91.50(A) is a strict liability

ordinance. Judge Froelich further stated, however, that Breitenstein “could have argued

that his suffering or permitting (i.e., his failure to not permit) the bite was an involuntary

act or not even his own act, and thus that the city did not prove the necessary actus reus.
                                                                                          -6-

R.C. 2901.21(A)(1).”2 Id. at ¶ 16. Judge Froelich concluded by stating that “[I]n such a

scenario, the dog’s owner did not ‘suffer or permit’ anything and would be not guilty

despite the strict liability nature of the offense.” Id.

       {¶ 13} Though not expressly stated, Patrick’s suffer or permit argument is

premised upon Judge Froelich’s concurring opinion. Patrick, that is, asserts that since

her son, when she was not home, allowed Nina to be outside without a leash the city did

not establish either that her voluntary conduct, as opposed to her son’s conduct, resulted

in Nina’s attack or that she, because of her absence, was capable of preventing Nina’s

conduct.

       {¶ 14} We have addressed this argument in two cases decided after State v.

Breitenstein. The first case is State v. Smith, supra. In this case Smith’s dog Penney,

while wearing an electronic collar, ran through an operative invisible fence and attacked

a neighbor’s dog. Smith was charged with a violation of Englewood Ordinance 618.17

which, as to the pertinent provisions, is identical to R.C.G.O. 91.50(A)(5). Smith, in

reliance upon Judge Froelich’s concurring opinion in Breitenstein, argued that the city did

not establish that he committed a voluntary act that resulted in a violation of the suffer or

permit element. We concluded otherwise stating that the “evidence established that

Smith voluntarily owned and controlled Penney and that he was responsible for securing

the dog in his yard. There is no evidence he was compelled to own and control the dog



2
  R.C. 2901.21(A) states as follows: “Except as provided in division (B) of this section, a
person is not guilty of an offense unless both of the following apply: (1) The person’s
liability is based on conduct that includes either a voluntary act, or an omission to perform
an act or duty that the person is capable of performing; (2) The person has the requisite
degree of culpability for each element as to which a culpable mental state is specified by
the language defining the offense.”
                                                                                              -7-

against his will.”    Smith at ¶ 13.      We further stated that the “facts… are unlike

Breitenstein where the defendant was asleep and a neighbor took his dog for a walk

without his knowledge.” Id.

       {¶ 15} We addressed a similar argument in State v. McGuire, supra. In this case,

a pit bull, though usually leashed, either slid under or came through a fence and attacked

a dog being walked on the sidewalk adjacent to the fence the pit bull escaped from.

McGuire, as a result of the dog’s attack, was charged with a violation of R.C.G.O.

91.50(A)(5). McGuire, among other assertions, argued that the city failed to establish

that the attack resulted from his voluntary conduct because there was no evidence that

he was present when the attack occurred. We rejected this argument concluding that

“[a]s in Smith, the evidence… indicates that McGuire owned the dog and was responsible

for securing him in the yard.”      McGuire at ¶ 34.      Thus, we concluded that the city

established that McGuire engaged in volitional conduct, and, since a culpable mental

state was not required, the city established the suffer or permit element.

       {¶ 16} We conclude, turning to the present case, that the city, consistent with our

case law, established that Patrick engaged in voluntary conduct that resulted in Nina’s

attack upon Elizabeth’s cat. Thus, the city, since a culpable mental state did not have to

be established, proved the suffer or permit element. This conclusion is reached because

Patrick voluntarily owned Nina and, as such, she, of her own volition, took on the strict

liability burden to prevent Nina from attacking a neighbor’s cat. The fact that Patrick

allowed her teenage son, in her absence, to supervise Nina does not alter this conclusion.

Patrick, as Nina’s owner, retained the strict liability obligation not to suffer or permit Nina’s

attack on a neighbor’s cat.      Patrick, given this burden, is responsible for her son’s
                                                                                          -8-


conduct which permitted the occurrence of Nina’s attack.



                                    Trespass Defense

       {¶ 17} Patrick also asserts that the trial court erred by not accepting Patrick’s

trespass defense.     R.C. 91.50(D)(2) states in pertinent part that “[I]t shall be an

affirmative defense to a violation of 91.50(A)… (5) that at the time of the occurrence

[the]… feline was unlawfully on the property owned or controlled by the owner of such

dog, and that such dog was not unsecured.”          Patrick’s son’s testimony placed the

affirmative defense at issue with Patrick having the burden of proof by the preponderance

of the evidence. Patrick does not articulate how the trial court erred by accepting the

city’s version of events, but since her assignment of error asserts that the verdict is not

supported by sufficient evidence and it is against the manifest weight of the evidence, we

will review the trial court’s verdict from a sufficiency and a manifest weight perspective.

       {¶ 18} A sufficiency of the evidence analysis focuses upon whether the

prosecution presented adequate evidence, viewing such evidence in the light most

favorable to the prosecution, to sustain the verdict. State v. Radford, 2d Dist. Clark No.

2016-CA-80, 2017-Ohio-8189, ¶ 14.           (Citations omitted.)     The prosecution has

presented sufficient evidence when “any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt.” Id., quoting State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d (1991), paragraph two of the syllabus.

       {¶ 19} A manifest weight analysis, in contrast, requires an appellate court to review

the record, weigh the evidence and any reasonable inferences allowed by the evidence,

consider witness credibility, and determine whether the trier of fact, in resolving any
                                                                                             -9-


evidentiary conflicts, “clearly lost its way and created such a miscarriage of justice that

the conviction must be reversed and a new trial ordered.” State v. Radford at ¶ 15. This

consideration of the evidence must be exercised with caution so that a new trial will only

be granted “in the exceptional case in which the evidence weighs heavily against the

conviction.” Id., quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st

Dist. 1983). Though different legal concepts are involved, if it is concluded that a verdict

is supported by the manifest weight of the evidence, the evidence, by necessity, is legally

sufficient. Radford at ¶ 16 (Citations omitted.)

       {¶ 20} The factual dispute the trial court had to resolve was the conflict between

Patricia’s testimony and Patrick’s son’s testimony. We cannot say that the trial court’s

resolution of this conflict demonstrates a circumstance where the trial court, as the trier

of fact, clearly lost its way so that a miscarriage of justice occurred. Since the trial court’s

resolution of this conflict is not against the manifest weight of the evidence, it is supported

by sufficient evidence. The trial court, accordingly, did not err by rejecting Patrick’s

trespass defense.



                                         Conclusion

       {¶ 21} The trial court’s guilty verdict is affirmed.



                                       .............



DONOVAN, J. and HALL, J., concur.
                              -10-



Copies mailed to:

Shawn Crawford
Adam James Stout
Hon. Christopher D. Roberts
