[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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