State v. Coughlin

2019 Ohio 2143

• Court: Ohio Court of Appeals
• Decided: May 30, 2019
• Docket: 18 CAC 09 0071
• Status: Published

Opinion

[Cite as State v. Coughlin, 2019-Ohio-2143.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. John W. Wise, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. -vs- : : DIANA COUGHLIN, : Case No. 18 CAC 09 0071 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Municipal Court, Case No. 18CRB 01211

JUDGMENT: Dismissed

DATE OF JUDGMENT: May 30, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA SCHIFFEL BRIAN M. ZETS Delaware City Prosecutor's Office DAVID C. MOSER 70 N. Union Street Isaac Wiles Burkholder & Teeter, LLC Delaware, Ohio 43015 Two Miranova Place, Suite 700 Columbus, Ohio 43215 Delaware County, Case No. 18 CAC 09 0071 2

Baldwin, J.

{¶1} Diana Coughlin appeals the August 15, 2018 decision of the Delaware

County Municipal Court finding her guilty of a failure to keep dogs under reasonable

control, a violation of R.C. 955.22(C) and a minor misdemeanor. Appellant is the City of

Delaware.

STATEMENT OF FACTS AND THE CASE

{¶2} Robert Fitzpatrick was applying fertilizer to the appellant’s lawn when he

was attacked and bitten by four dogs while he was working within a fenced-in area

purportedly constructed for the use of the dogs. Appellant was charged and convicted of

failing to keep the dogs under control and she now contends there was insufficient

evidence to support the conviction and that the trial court erroneously applied the terms

of R.C. 955.22.

{¶3} Robert Fitzpatrick had been to appellant’s property on six prior occasions in

the course of his employment with a landscaping company and he followed the same

procedure on this date. The property was large and required the efforts of two individuals

to complete the job. Appellant’s property was protected by a gated entrance. Someone

at appellant’s residence would grant Mr. Fitzpatrick access after he pressed a buzzer at

the gate to be admitted. He and his co-worker would enter the property, park their

vehicles and begin work. The landscapers would begin fertilizing on opposite sides of the

property and would meet near the middle when finished. At his prior visits to the property,

Mr. Fitzpatrick noticed that the dogs would be in the fenced area when he arrived and

would be taken inside shortly after he arrived. Once they were inside he would fertilize

the area within the fence. Delaware County, Case No. 18 CAC 09 0071 3

{¶4} He followed the same procedure on April 27, 2018 and he remembered that

he could still hear the dogs barking when he entered the fenced area. The dogs were

always barking loudly, even when they were in the house, presumably because they could

see Mr. Fitzpatrick through the windows in the back of the home. Mr. Fitzpatrick noticed

a change in the tone of the barks, and as he turned he saw that someone had released

the dogs into the fenced area and they were heading toward him. He braced for the

impact and received several bite wounds. Someone came from the home and retrieved

the dogs and Mr. Fitzpatrick, after recovering, finished the application.

{¶5} Once he completed the work, Mr. Fitzpatrick called his supervisor and

reported the dog bite incident. His supervisor directed him to visit an urgent care center

where he was treated and released. The urgent care center reported the dog bite to the

county warden and the warden issued a citation after visiting the appellant’s property.

{¶6} The charges were presented at a bench trial and appellant was found guilty

of a violation of R.C. 955.22(C), which states that “no owner, keeper, or harborer of any

dog shall fail at any time to *** [k]eep the dog under the reasonable control of some

person.” Appellant was fined $75.00 plus all court costs and fees. Offered time to pay,

the appellant chose to pay the fine and costs that same day.

{¶7} Appellant filed a timely notice of appeal and submitted two assignments of

error:

{¶8} “I. THE TRIAL COURT ERRED BY FINDING APPELLANT GUILTY OF

VIOLATING R.C. 955.22(C)(2) BECAUSE HER CONVICTION WAS NOT SUPPORTED

BY SUFFICIENT EVIDENCE.” Delaware County, Case No. 18 CAC 09 0071 4

{¶9} “II. THE TRIAL COURT ERRED BY NOT CONSTRUING THE LANGUAGE

OF R.C. 955.22(C) IN FAVOR OF APPELLANT TO PROVIDE THAT ONLY ONE OR

THE OTHER OF THE STATUTE'S SUBSECTIONS MUST BE COMPLIED WITH TO

AVOID VIOLATING THE STATUTE.”

ANALYSIS

{¶10} When a criminal defendant has voluntarily paid the fine or completed the

sentence for the offense, an appeal is moot when no evidence is offered from which an

inference can be drawn the defendant will suffer some collateral disability or loss of civil

rights from such judgment or conviction. State v. Berndt, 29 Ohio St.3d 3, 4, 504 N.E.2d

712, 713 (1987), as quoted by State v. Wilson, 41 Ohio St.2d 236, 70 O.O.2d 431, 325

N.E.2d 236, syllabus (1975). The burden of presenting evidence of a “substantial stake

in the judgment of conviction” is upon the defendant. Id.

{¶11} A person convicted of a felony has a substantial stake in the judgment of

conviction which survives the satisfaction of the sentence imposed; therefore, an appeal

challenging a felony conviction is not moot even if the entire sentence has been satisfied

before the matter is heard on appeal. State v. Golston, 71 Ohio St.3d 224, 1994-Ohio-

109, 643 N.E.2d 109, syllabus, distinguishing Berndt, supra; Wilson, supra.

{¶12} Appellant herein was convicted only of a minor misdemeanor, and has

voluntarily paid the fine and all costs. Upon review of the record, we find appellant has

made no demonstration of collateral disability or loss of civil rights from the conviction. Delaware County, Case No. 18 CAC 09 0071 5

{¶13} Accordingly, we find the appeal is moot, and is therefore dismissed.

By: Baldwin, J.

Wise, John, P.J. and

Wise, Earle, J. concur.