Canton v. Roth

2018 Ohio 596

• Court: Ohio Court of Appeals
• Decided: February 12, 2018
• Docket: 2017CA00045
• Status: Published

Opinion

[Cite as Canton v. Roth, 2018-Ohio-596.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

CITY OF CANTON : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. -vs- : : JULIE ROTH : Case No. 2017CA00045 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court, Case No. 2016 CRB 04547

JUDGMENT: Affirmed

DATE OF JUDGMENT: February 12, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KEVIN R. L'HOMMEDIEU MICHELA HUTH TASHA FORCHIONE PO BOX 17 Canton Law Department Bolivar, Ohio 44612 218 Cleveland Avenue, S.W. Canton, Ohio 44701-4218 [Cite as Canton v. Roth, 2018-Ohio-596.]

Baldwin, J.

{¶1} Defendant-appellant Julie Roth appeals her conviction and sentence from

the Canton Municipal Court on one count of keeping in excess of 5 dogs or cats. Plaintiff-

appellee is the City of Canton.

STATEMENT OF THE FACTS AND CASE

{¶2} On September 25, 2016, a complaint was filed alleging that appellant

possessed, harbored or kept more than five dogs or cats, or any combination thereof, at

her residence in violation of City of Canton Codified Ordinance Section 505.15(A), a

misdemeanor of the third degree. At her arraignment on October 20, 2016, appellant

entered a plea of not guilty to the charge.

{¶3} Thereafter, a jury trial commenced on February 8, 2017. At the trial, Shirley

Moore, who is employed by the City of Canton License Bureau, testified that she assisted

in investigating violations of the City of Canton’s ordinances. Moore testified that she

investigated a complaint at a residential address located at 1260 Fulton Road, N.W. in

the City of Canton. She testified that in March of 2015, a Canton police officer had told

her that he had been at the residence the day before and that appellant might be violating

Canton’s animal limit ordinance, Codified Ordinance 505.15. The ordinance provided, in

relevant part, as follows:

505.15 KEEPING IN EXCESS OF FIVE DOGS OR CATS; PERMIT AND

REGULATIONS.

(a) No person shall be permitted to own, possess, harbor or keep

more than five dogs or cats or any combination thereof in an area zoned

residential except that where litters have been born to a residing animal, [Cite as Canton v. Roth, 2018-Ohio-596.]

after they have been weaned, a four-month grace period shall be granted

to permit the distribution of such young animals.

{¶4} The officer indicated that Moore needed to send a letter to appellant

notifying her of the ordinance and informing her that she was only allowed to have five

animals and that having more than five was a misdemeanor of the third degree. Moore

sent a letter to appellant on or about March 11, 2015.

{¶5} After receiving the letter, appellant came into the police department and

admitted to having nine cats and four dogs. According to Moore, when Moore told her that

they would give her thirty to sixty days to comply with the ordinance, appellant said “Well

it doesn’t matter, I’m leaving in July. I’m moving.” Transcript at 9. On September 22,

2016, Moore and a Canton police officer went to appellant’s house and saw seven dogs

and two cats in the fenced-in yard. Appellant, who was still living at the residence,

indicated that she had additional cats inside. No one else was present at the home at the

time. When asked if, during her investigation, she learned whether anyone else lived at

the house, Moore testified that she had not. She testified that appellant had never

indicted to her that Michael Roth owned any of the animals.

{¶6} On cross-examination, Moore testified that the purpose of the ordinance was

to ensure that people were taking care of their animals and that no one had complained

about appellant’s animals. On redirect, she testified that there was no exemption in the

ordinance allowing an individual to own more than five animals if they were cared for

properly.

{¶7} At the conclusion of the evidence and the end of deliberations, the jury, on

February 7, 2016, found appellant guilty. Appellant was ordered to serve 60 days in jail, [Cite as Canton v. Roth, 2018-Ohio-596.]

but the 60 days were suspended on condition that appellant perform 60 hours of

supervised community work. Appellant also was ordered to pay a fine and costs in the

amount of $1,372.00.

{¶8} Appellant now raises the following assignments of error on appeal:

{¶9} I. CITY OF CANTON ORDINANCE 505.15 IS UNCONSTITUTIONAL

(SIC) VAGUE.

{¶10} II. CITY OF CANTON ORDINANCE 505.15 IS INVALID AS A MATTER

OF LAW AS IT IMPOSES INDIVIDUAL VICARIOUS CRIMINAL LIABILITY AND

CONFLICTS WITH ORC SECTION 2901.21(A).

I, II

{¶11} Appellant, in her two assignments of error, challenges City of Canton

Codified Ordinance Section 505.15. Appellant argues that it is unconstitutionally vague,

imposes individual vicarious liability and conflicts with R.C. Section 2901.12(A).

{¶12} We note that appellant did not raise any of the above arguments in the trial

court. As stated by the Supreme Court of Ohio in State v. Awan, 22 Ohio St.3d 120, 489

N.E.2d 277 (1986), syllabus: “Failure to raise at the trial court level the issue of the

constitutionality of a statute or its application, which issue is apparent at the time of trial,

constitutes a waiver of such issue and a deviation from this state's orderly procedure, and

therefore need not be heard for the first time on appeal.” “It is axiomatic that a party

cannot raise new issues or legal theories for the first time on appeal and failure to raise

an issue before the trial court results in waiver of that issue for appellate purposes.” Dudley

v. Dudley, 12th Dist. Butler No. CA2008–07–165, 2009–Ohio–1166, ¶ 18. {¶13} As appellant did not present these arguments to the trial court, we need not

consider the issues on appeal.

{¶14} Appellant’s two assignments of error are, therefore, overruled.

{¶15} Accordingly, the judgment the Canton Municipal Court is affirmed.

By: Baldwin, J.

Delaney, P.J. and

Earle Wise, J. concur.