[Cite as State v. Haughn, 2025-Ohio-5405.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 24CA15
v. :
JAMES C. HAUGHN, : DECISION & JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
Victoria Bader, Office of the Ohio Public Defender, Columbus, Ohio, for appellant1.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Alisa Turner, Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee. ________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:11-25-25 ABELE, J.
{¶1} This is an appeal from a Ross County Common Pleas
Court judgment of conviction and sentence. James C. Haughn,
defendant below and appellant herein, assigns three errors for
review:
FIRST ASSIGNMENT OF ERROR:
“JAMES HAUGHN’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. U.S. CONST., AMEND. V, XIV; OHIO CONST., ART. I, SECTIONS 10, 16.”
1Different counsel represented appellant during the trial court proceedings. ROSS, 24CA15 2
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO INSTRUCT THE JURY ON THE STATUTORY DEFINITION OF ‘MENACING FASHION.’ R.C. 2945.11, CRIM.R. 52; U.S. CONST., AMEND. V, XIV; OHIO CONST., ART. I., SECTIONS 10, 16.”
THIRD ASSIGNMENT OF ERROR:
“MR. HAUGHN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF U.S. CONST., AMEND. VI WHEN TRIAL COUNSEL FAILED TO OBJECT TO THE COURT’S FAILURE TO INSTRUCT THE JURY ON THE STATUTORY DEFINITION OF ‘MENACING FASHION.’ STRICKLAND V. WASHINGTON, 466 U.S. 668 (1984).”
{¶2} In October 2023, a Ross County Grand Jury returned an
indictment that charged appellant with one count of knowingly
causing serious physical harm to a companion animal in violation
of R.C. 959.131, a fifth-degree felony. Appellant pleaded not
guilty.
{¶3} At appellant’s jury trial, Ross County Sheriff’s
Deputy Blake Weaver testified that he responded to an animal-
related call on August 27, 2023 at the home of Matthew Dickson.
Weaver observed Mrs. Dickson on the porch with multiple towels
“tending to their wounded dog.” Weaver described the dog as
bleeding, but conscious and calm. When Ross County Dog Warden
Pam Longlott arrived about 20 minutes later, Mrs. Dickson
removed the towels and Weaver observed a bullet wound in the
dog’s leg. ROSS, 24CA15 3
{¶4} When the Dicksons took the dog to seek emergency
veterinary care, Deputy Weaver and Warden Longlott visited
appellant’s home to investigate. Appellant “stated that he did
shoot the dog because it was running on his property . . . and
he was afraid it was going to attack his two grandchildren.”
Appellant said that his grandchildren were in the driveway and
the dog in the middle of the yard. Weaver stated that
appellant’s yard is a substantial size, and estimated the
distance between the dog and the grandchildren at about 60 feet,
and estimated that appellant stood about 60 to 70 feet from the
dog, and 30-40 feet from the grandchildren.
{¶5} Appellant informed Deputy Weaver that he contacted the
Dicksons on August 9 to tell them their dog had been “f*cking
with my goats and I won’t have it.” Appellant also stated that
his granddaughters are legally blind and the goats “are all they
have.” After August 9, appellant stated that the dog had been
on his property three more times chasing his goats. “Well
tonight, the granddaughters were walking to the steps . . . they
were walking down the lane and the dog came around and attacked
them. Ok. That’s it. The dog has already been harassing my
goats - I mean.” Appellant stated, “I told him, I warned him,
man I don’t want to do that. I told him three (3) times. . . I
had to do that. I have dogs. But I ain’t going to have them
attack a little kid. She’s seven (7) and fourteen (14). But ROSS, 24CA15 4
they got eye disease. . . retinitis pigmentosa. . . eye
disease.”
{¶6} Appellant stated that he told his granddaughters not
to trust any dogs because not all dogs are friendly, and “like I
said that’s the third or fourth time.” When Warden Longlott
asked, “Why has nobody called us?,” appellant answered, “well,
he’s my - was my friend.” When told that the dog and the
Dicksons’ children are suffering due to the wounded dog,
appellant asked, “why didn’t they tie the dog up?” Longlott
said, “they should’ve,” but “now, you are in a mess.” Appellant
asked, “how’s that? It was on my property.” Longlott replied,
“It doesn’t always matter. You are supposed to shoot to kill
it. That’s the law. It lamed it.” Appellant responded, “It
ran. What do you want me to do? This is in front of my kids or
grandkids. I didn’t want to do that. I just told you that.”
Appellant continued, “I mean I did what I thought was right to
keep it from going - I couldn’t have ran down there and got to
them before the dog did. I’m still shaking over this sh*t. I
didn’t enjoy it at all. . . But I am not going to let him attack
one of my grandkids and watch him. I don’t know what that dog
is going to do.”
{¶7} Deputy Weaver explained to appellant, “it’s an inside
dog,” and the dog got out around the Dicksons’ air conditioner
window unit. Appellant asked, “all three (3) times?,” “Wow. ROSS, 24CA15 5
That’s f*cked. Now, I feel like an *sshole. I was doing what I
thought was legally right. . . it was on my property running
towards the girls and it ain’t the first time. And - wow.”
Weaver seized appellant’s rifle and turned it over to Warden
Longlott.
{¶8} On cross-examination, Deputy Weaver conceded that he
did not seek blood spatter material or take any measurements.
Weaver further acknowledged that the law says “you’ve got to
keep your dog on a leash,” and the Dicksons’ dog was not on a
leash. Weaver also acknowledged that Dickson told him that
appellant “was crazy and well-armed and that you should bring
back-up,” but he said that appellant behaved respectfully.
{¶9} Warden Longlott testified that she had been the deputy
dog warden for 10 ½ years. Longlott’s investigation revealed
that the dog “got loose through an air conditioner - the side
slide thing.” Longlott conceded that Dickson failed to keep his
dog confined on his property, that she had not seen the dog
running at large prior to August 27, and that she did not cite
Matthew Dickson for “dog at large.”
{¶10} Matthew Dickson testified that his dog, a 2 ½ year-old
pitbull chocolate lab mix, had escaped 3 or 4 times prior to
August 17, 2023, but had never bitten anyone or had been
aggressive. Due to the August 27 incident, his dog underwent a
leg amputation. On cross-examination, Dickson stated that he ROSS, 24CA15 6
received an August 9, 2023 text message from appellant that
Dickson’s dog “had been going after his goats.” Dickson said he
told his veterinarian that appellant “wasn’t shooting to kill.
He admitted that to me.”
{¶11} At the close of appellee’s evidence, the trial court
denied appellant’s Crim.R. 29 motion for judgment of acquittal.
{¶12} Appellant’s son-in-law, James Calvano, testified that
his step-daughters, A.M., age 10, and I.M., age 13, suffer from
retinitis pigmentosa, or tunnel vision- “when it’s dark they
can’t really see at all and it’s pretty bad.” Calvano stated
that, due to their vision issues, his step-daughters are “very
scared to really move at any kind of normal even pace. They
always walk with their hands out. They are nervous to walk
especially if they are not one hundred (100%) familiar with it.
. . they bumped into us many times even in a house they are
familiar with.” Calvano added that he generally holds their
hand when they walk.
On August 27, Calvano said:
I was taking the girls down to play with the . . . remote car and . . . as we were getting down to play with it . . . we probably played with it for not even a minute or so and a dog approached us. And I have heard of this dog in the past and I know what to look for in the type of dog; and it started to approach us and I told the girls to start walking back up the driveway and as I am kind of pushing them towards the driveway; the dog keeps coming towards us. And I am trying to shoo the dog away. The dog kept coming and that’s when I screamed up to the house for ROSS, 24CA15 7
help. . . That is when James came out and he told me to get the girls away and that is when we started moving further up the driveway.
{¶13} When asked if the dog continued to move towards the
girls, Calvano replied, “Yes, and that is when I had to yell for
the dog to move away and for the dog - that’s when we started
walking up the driveway and that’s when I really started yelling
for the help to come out.” When asked if the dog still
approached the girls as appellant shot the dog, Calvano stated,
“it was close enough that it was kind of making me concerned.”
After appellant shot the dog, it “ran away basically. He was
injured and he just ran off.” When asked if appellant had time
to “physically run over to you and the girls,” Calvano replied,
“not a chance.” Appellee asked Calvano whether he believed at
the time appellant fired the shot that the dog posed a danger to
the girls, Calvano testified, “at the time I didn’t really know
what could happen and . . . I was concerned for their safety,
yes, because he kept approaching.”
{¶14} On cross-examination, Calvano stated that he lived at
appellant’s home for about a year and a half and had not seen
the dog, but had been told that the dog “was a brownish pit kind
of looking dog. And to be looking out for it because it has
terrorized the goats in the past. And I know it’s been seen on
the property numerous times.” Calvano stated that when he first
saw the dog, it was “probably fifteen (15) twenty (20) feet ROSS, 24CA15 8
away. . . He was walking towards our direction. He wasn’t
running but, then he started moving more aggressively.” Calvano
conceded that the dog did not bark, growl, or show its teeth.
Calvano tried to shoo the dog away, but the dog remained
undeterred, so Calvano screamed for help, and appellant appeared
quickly. Calvano conceded that some dogs like to chase a
remote-controlled car.
{¶15} Appellant’s friend, Mike Winland, observed the
incident and said, “The dog come running up against his little
blind kids and he ended up shooting it.” Winland heard
appellant’s son-in-law scream for help, and within seconds,
appellant grabbed his gun and fired it. Winland stated that
appellant would not have had time to run to the dog to protect
his granddaughters. On cross-examination, Winland estimated the
dog to be 40 yards from appellant’s son-in-law and
granddaughters, and said the dog “barked some.”
{¶16} Appellant’s wife, Deejah Haughn, testified that she
knows Matthew Dickson and is familiar with Dickson’s pitbull.
On August 9, 2023, Haughn observed a brown pitbull mix on their
property harassing their goats:
I was standing in our kitchen and I heard our goats like carrying on; and I looked out our window - we have a big picture window and the goats was like - you know down over the hill from where our window is and our porch. And I seen the dog like snapping at the goats - and you know lunging for them and they were just carrying on; so, I yelled through the window but you know I ran out ROSS, 24CA15 9
our front door onto our porch and like yelled. I first yelled for my husband but he was down at his barn and he didn’t get up there on time but, when I yelled the dog did take off.
{¶17} After Haughn told appellant about the goat incident,
appellant sent Dickson a text message. Haughn did not observe
the August 27 incident. On cross-examination, she acknowledged
that she did not observe any injuries to her goats from the
prior incident.
{¶18} Appellant testified that he is 62 years old and has
lived at his property for 50 years. On August 27, 2023,
appellant’s neighbor’s pitbull entered his property. Appellant
said he had seen the dog on his property 4 to 6 times, and
appellant’s wife previously observed the dog snap at their
goats. Appellant informed Dickson by text message, and Dickson
apologized.
{¶19} On August 27, 2023, after appellant ate dinner with
his family and his friend Mike Winland, appellant and Winland
stepped outside for Winland to smoke. “I looked down and seen
[the dog] running across the field up towards us. . . I was
walking down and I couldn’t see him [Calvano] but I could hear .
. . James [Calvano].” The dog “was running right towards them
[his granddaughters] at an angle.” Appellant’s visually-
impaired grandchildren were about 50 yards away, and “I didn’t
know what the dog was capable of doing.” Appellant had been ROSS, 24CA15 10
target-practicing earlier and his gun remained on his four-
wheeler, between him and the barn. Appellant “trotted” towards
the four-wheeler to get his gun. Appellant said that he did not
want to shoot the dog, but “did it because I didn’t want the
girls to get bit.” Appellant said he believed he had no choice
but to shoot the dog, and he did not intend to cripple it and
make it suffer.
{¶20} After appellant shot the dog, Deputy Weaver and Dog
Warden Longlott arrived. During cross-examination, appellant
estimated the distance between the dog and his granddaughters,
“I don’t know thirty (30) forty (40) feet, I’m not sure. They
was behind the barn.” Appellant explained, “Well, it’s not a
barn, it’s a little shed.” Appellant stated that he did not
believe the shed was open. Later, appellant estimated that
about 28 feet separated the dog from his granddaughters and
about 6 to 8 feet separated the dog from his son-in-law.
{¶21} During closing arguments, counsel argued that
appellant’s conduct met the affirmative defense of privilege
because he shot Dickson’s dog when it approached “in a menacing
fashion or an attitude of attack or threatening or attempting to
injure or bite people” pursuant to R.C. 955.28. The trial court
instructed the jury, among other things, about the affirmative
defenses of necessity or privilege. With respect to privilege,
the court did not define “menacing fashion or apparent attitude ROSS, 24CA15 11
of attack.”
{¶22} After deliberation, the jury found appellant guilty of
knowingly causing serious physical harm to a companion animal in
violation of R.C. 959.131, a fifth-degree felony. Appellant
filed a written Crim.R. 29 motion for judgment of acquittal and
argued that (1) he had proven the affirmative defense of
privilege, (2) R.C. 959.131(C) is unconstitutional as applied to
him, and (3) R.C. 949.131(B) and (C) violates the Equal
Protection Clause.
{¶23} At appellant’s April 19, 2024 sentencing, the trial
court overruled the motion and stated: “I’ve considered the
motion, it’s probably as close as I have been to granting one,
but I’m going to decline to do so and overrule it.” Appellant’s
counsel then asked:
May I ask, Your Honor, in the alternative to denying it or granting it as stated, I believe one of the powers under Rule 29 could be finding him guilty of an alternative offense. I would ask the court to consider finding him guilty of the misdemeanor version instead of the felony.
Counsel noted that this violation constitutes a felony offense
of violence and disqualifies appellant from firearm possession.
After counsel explained the differences between the misdemeanor
and felony sections, the trial court stated: “Well, that makes
you wonder what the heck is the difference between maim and
serious physical harm?” Counsel replied, “That was the third ROSS, 24CA15 12
point in the motion I made for why I thought it was equal
protection violation, Your Honor. I thought that they are
essentially the same elements, just different degrees.” After
questioning the difference between serious physical harm and
maiming, the court stated:
Oh, I’m going to make this one easy for you, don’t sweat it. I’m going to still overrule the motion. I think that’s a really good argument. I think the court of appeals ought to take a peak at it. I think the way I get that to them is by overruling it and let it go up the way it is and then they can come back and say this doesn’t make sense. I mean quite frankly, of all of the things, of all of the crimes that we’ve dealt with, this one is more of a head scratcher than most of them. And I did find with interest, and I think the court of appeals should be aware of it in case they don’t review the P.S.I., that since this has happened, it appears that the dog has gone back on the defendant’s property, has gone back to the goats, and at one point in time the defendant was able to actually call the dog over, the dog willingly came to the defendant who tied him up until the dog warden got there. . .
I mean, in the grand scheme of things, the dog may be limping around on three legs, but it looks to me like the dog is more than happy to come see the defendant and hang out with the goats. . .
I mean, this is all just crazy. Okay. Anyway, Danny [assistant prosecutor] that is something that someone else in your office can do on the appeal for you, but I can’t help but wonder what the heck the difference is. That’s a good argument, Nick [defense counsel]. It doesn’t work with me, but I think it’s a good argument.
At allocution, appellant stated:
I didn’t want to shoot the dog in the first place, it ROSS, 24CA15 13
was chasing my - it was running towards my daughters and I thought, ya know, I just didn’t want him reaching them. I mean, it was on my property, I thought I was legally, you know -
The court further noted:
I kept getting the distinct impression that that dog was just strolling along probably just looking for somebody to play or something to do. I didn’t get that from the testimony that that dog was a threat necessarily to anybody. However, I can say that I would be concerned if a pitbull was following my children as well; or a dog was following mine. I don’t know that I would have done the same thing as you, but I’m not faulting you a whole lot for it.
{¶24} After the trial court considered the record, the pre-
sentence investigation report, statements of counsel,
appellant’s statement, the R.C. 2929.11 principles and purposes
of sentencing and the R.C. 2929.12 seriousness and recidivism
factors, the court concluded that appellant is amenable to
community control sanctions and sentenced appellant to: (1)
serve a two-year community control term, (2) pay $4,849.44
restitution to Matthew Dixon, (3) refrain from owning or
possessing dogs or cats during his community control term, (4)
perform 200 community service hours,(5) serve a two-year
postrelease control term if he violates community control, and
(6) pay costs. This appeal followed.
I. ROSS, 24CA15 14
{¶25} In his first assignment of error, appellant asserts
that his conviction is against the manifest weight of the
evidence.
{¶26} “The legal concepts of sufficiency of the evidence and
weight of the evidence are both quantitatively and qualitatively
different.” State v. Thompkins, 78 Ohio St.3d 380, at paragraph
two of the syllabus (1997). When reviewing whether a conviction
is against the manifest weight of the evidence, an appellate
court must “examine whether the evidence produced at trial
‘attains the high degree of probative force and certainty
required of a criminal conviction.’” State v. Tibbetts, 92 Ohio
St.3d 146, 163 (2001), quoting State v. Getsy, 84 Ohio St.3d
180, 193 (1998). In order to do this, an appellate court must
examine the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and determine
whether the fact-finder clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. Id.; State v. Beasley, 2018-
Ohio-493, ¶ 208, State v. McKelton, 2016-Ohio-5735, ¶ 328.
“‘Weight is not a question of mathematics, but depends on the
effect in inducing belief.’” Thompkins at 387, quoting Black’s
Law Dictionary (6 Ed.1990) 1594. “The question to be answered
when a manifest weight issue is raised is whether ‘there is
substantial evidence upon which a jury could reasonably conclude ROSS, 24CA15 15
that all the elements have been proved beyond a reasonable
doubt.’ ” State v. Leonard, 2004-Ohio-6235, ¶ 81, quoting
Getsy, 84 Ohio St.3d at 193–194, citing State v. Eley, 56 Ohio
St.2d 169 (1978), syllabus.
{¶27} Reviewing courts must also bear in mind that
credibility generally is an issue for the trier of fact to
resolve. State v. Issa, 93 Ohio St.3d 49, 67 (2001); State v.
Murphy, 2008-Ohio-1744, ¶ 31 (4th Dist.). “ ‘Because the trier
of fact sees and hears the witnesses and is particularly
competent to decide “whether, and to what extent, to credit the
testimony of particular witnesses,” we must afford substantial
deference to its determinations of credibility.’ ” Barberton v.
Jenney, 2010-Ohio-2420, ¶ 20, quoting State v. Konya, 2006-Ohio-
6312, ¶ 6 (2d Dist.), quoting State v. Lawson, 1997 WL 476684
(2d Dist. Aug. 22, 1997). Thus, an appellate court will
generally defer to the trier of fact on issues of evidence
weight and credibility, as long as a rational basis exists in
the record for the fact-finder's determination. State v.
Picklesimer, 2012-Ohio-1282, ¶ 24 (4th Dist.); accord State v.
Howard, 2007-Ohio-6331, ¶ 6 (4th Dist.) (“We will not intercede
as long as the trier of fact has some factual and rational basis
for its determination of credibility and weight.”).
Accordingly, if the prosecution presented substantial credible
evidence upon which the trier of fact reasonably could conclude, ROSS, 24CA15 16
beyond a reasonable doubt, that the prosecution established the
essential elements of the offense, the judgment of conviction is
not against the manifest weight of the evidence. Accord Eastley
v. Volkman, 2012-Ohio-2179, ¶ 12, quoting Thompkins, 78 Ohio
St.3d at 387, quoting Black's Law Dictionary 1594 (6th Ed.1990)
(a judgment is not against the manifest weight of the evidence
when “ ‘ “the greater amount of credible evidence” ’ ” supports
it).
{¶28} Consequently, when an appellate court reviews a
manifest weight of the evidence claim, the court may reverse a
judgment of conviction only if it appears that the fact-finder,
when it resolved the conflicts in evidence, “ ‘clearly lost its
way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’ ”
Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20
Ohio App.3d 172, 175 (1st Dist. 1983); accord McKelton at ¶ 328.
Finally, a reviewing court should find a conviction against the
manifest weight of the evidence only in the “ ‘exceptional case
in which the evidence weighs heavily against the conviction.’ ”
Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d
at 175; accord State v. Clinton, 2017-Ohio-9423, ¶ 166; State v.
Lindsey, 87 Ohio St.3d 479, 483 (2000).
{¶29} R.C. 959.131 sets forth the essential elements of the ROSS, 24CA15 17
offense of serious physical harm to a companion animal, fifth-
degree felony. The statute provides: “(C) No person shall
knowingly cause serious physical harm to a companion animal.”
R.C. 2901.22(B) defines when a person acts knowingly:
A person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when a person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
“Serious physical harm” is defined as:
(12) "Serious physical harm" means any of the following:
(a) Physical harm that carries an unnecessary or unjustifiable substantial risk of death;
(b) Physical harm that involves either partial or total permanent incapacity;
(c) Physical harm that involves acute pain of a duration that results in substantial suffering or that involves any degree of prolonged or intractable pain.
Further, “companion animal” is defined in the statute:
(A) As used in this section:
(1) "Companion animal" means any animal that is kept inside a residential dwelling and any dog or cat regardless of where it is kept. . .
{¶30} In the case sub judice, appellant concedes that
appellee proved that appellant knowingly and intentionally shot ROSS, 24CA15 18
the dog on his property and that action resulted in the
amputation of the dog’s leg. However, appellant contends that
R.C. 955.28(A) lawfully permitted him to shoot the dog:
(A) Subject to divisions (A)(2) and (3) of section 955.261 of the Revised Code, a dog that is chasing or approaching in a menacing fashion or apparent attitude of attack, that attempts to bite or otherwise endanger, or that kills or injures a person or a dog that chases, threatens, harasses, injures, or kills livestock, poultry, other domestic animal, or other animal, that is the property of another person, except a cat or another dog, can be killed at the time of that chasing, threatening, harassment, approaching, attempt, killing, or injury. If, in attempting to kill such a dog, a person wounds it, the person is not liable to prosecution under the penal laws that punish cruelty to animals. Nothing in this section precludes a law enforcement officer from killing a dog that attacks a police dog as defined in section 2921.321 of the Revised Code.
{¶31} Appellant contends that the central question in this
case is whether the jury’s decision that appellant acted without
privilege is against the manifest weight of the evidence.
Appellant argues that because he shot the dog before it reached
his granddaughters, whether he acted with privilege depends on
whether the dog was “chasing or approaching in a menacing
fashion or apparent attitude of attack” or that “attempts to . .
. otherwise endanger.” R.C. 955.28(A). Pursuant to R.C.
955.11(2), “‘Menacing fashion’ means that a dog would cause any
person being chased or approached to reasonably believe that the
dog will cause physical injury to that person.” Appellant
recognizes that this definition is contained in a different ROSS, 24CA15 19
statute, but contends that R.C. 955.11 relates to dog behavior
and applies in the case at bar.
{¶32} As noted above, R.C. 955.28 provides an affirmative
defense to a charge of knowingly causing serious physical harm
to a companion animal if a dog is chasing or approaching a
person in a menacing manner. State v. Hurst, 1999 WL 152262
(4th Dist. Mar. 12, 1999). “The proper standard for determining
in a criminal case whether a defendant has successfully raised
an affirmative defense under R.C. 2901.05 is to inquire whether
the defendant has introduced sufficient evidence, which, if
believed, would raise a question in the minds of reasonable men
concerning the existence of such issue.” State v. Melchior, 56
Ohio St.2d 15, paragraph one of the syllabus (1978). The burden
of going forward with the evidence of an affirmative defense and
the burden of proof for an affirmative defense is upon the
accused. R.C. 2901.05(A).
{¶33} Appellant contends that in the case sub judice, the
evidence adduced at trial shows that he shot the dog on his
property as it rapidly approached his son-in-law and his two
young, visually-impaired grandchildren. Appellant’s son-in-law
attempted to shoo the dog away and yelled for help when the dog
did not stop. Appellant points out that when he intervened, he
did so with the knowledge that (1) this dog had previously
attacked goats on his property, (2) the dog ran towards his ROSS, 24CA15 20
grandchildren, (3) both grandchildren suffered from a “retinitis
pigmentosa”, degenerative eye disease that affected their
vision, (4) his son-in-law, who was with the children, yelled
for help, and (5) appellant could not physically reach the girls
before the dog reached them.
{¶34} Thus, appellant asserts that, under the circumstances
in this case, both his son-in-law and appellant held a
subjective, reasonable belief that the dog would cause physical
injury to his son-in-law or to the children, sufficient to prove
that the dog “approach[ed] in a menacing fashion.”
Consequently, appellant contends that he presented sufficient
evidence that his actions met the R.C. 955.28(A) affirmative
defense of privilege, the jury clearly lost its way, and his
conviction is against the manifest weight of the evidence.
{¶35} Appellee, on the other hand, contends that the jury
instructions in the case sub judice show, pursuant to R.C.
955.28(A), that the defense also has to establish that (1) the
defendant killed or injured the dog at the time of the chasing,
threatening, harassment, approaching, attempt, killing, or
injury; and (2) if the dog was not killed, the wounds inflicted
on the dog were part of an attempt to kill the dog. Appellee
also argues that appellant’s witnesses accounts are inconsistent
regarding their recollection of the events.
{¶36} In particular, appellee contends that appellant failed ROSS, 24CA15 21
to prove that the shooting occurred “at the time of the chasing,
threatening, harassment, approaching, attempt, killing or
injury,” because witness testimony did not demonstrate that the
dog behaved in that manner. Appellee points out that, by the
time appellant “trotted” over to get his weapon, his
grandchildren were behind a shed and 30 feet separated the dog
from the grandchildren. Appellee also argues that some question
exists as to whether the dog chased or approached the children
because Calvano testified he stood between the children and the
dog.
{¶37} Appellee further contends that, as for the definition
of “menacing fashion,” both trial counsel and appellate counsel
offered definitions and under either, appellant did not satisfy
his burden. Appellee points out that trial counsel stated that
the term is not defined in R.C. 955.28, but rather is defined in
R.C. 955.11 and the introductory paragraph of definitions
states, “as used in this section,” so that definition is
inapplicable to R.C. 955.28. Appellate counsel also cites the
rules of common usage pursuant to R.C. 1.42 and refers to
Merriam-Webster dictionary to use the words presenting,
suggesting, or constituting a danger or threat, and the
definition of “menace” in the same dictionary states, “a show of
intention to inflict harm,” with synonyms “threat” and “danger.”
Appellee also contends that appellant’s argument fails under the ROSS, 24CA15 22
dictionary definition as well because he did not prove that the
dog exhibited any threatening or aggressive behavior. Finally,
appellee argues that R.C. 955.11(A)(2)’s definition requires a
“reasonable belief” that the dog will cause physical injury.
Appellee claims that, because the grandchildren were behind a
shed at the time appellant shot the dog, appellant did not at
that time possess a reasonable belief the dog would cause
physical injury.
{¶38} Appellee summarizes that (1) on the date that the dog
bothered the goats, no evidence existed that the dog harmed the
goats, (2) on the date that the dog bothered the goats,
appellant’s wife yelled at the dog and it left the property, (3)
if appellant could have “trotted” to get his gun, he could have
“trotted” to his grandchildren to intervene, (4) the trial court
noted at sentencing that after it heard the testimony it
believed the dog “was just strolling along probably just looking
for somebody to play or something to do. I didn’t get that from
the testimony that the dog was a threat necessarily to anybody,”
(5) appellant’s testimony regarding the number of times the dog
had allegedly been on the property previously varied from three
to six times, and (6) Calvano, who had lived at the property for
over a year and a half, had never seen the dog on the property.
Appellee, therefore, contends that the jury simply chose to not
believe appellant’s version of events. ROSS, 24CA15 23
{¶39} Appellant, however, asserts that regardless of the
definition used, R.C. 955.28 creates a subjective test that
turns on the perception of the person who shoots the dog.
Moreover, appellant argues that nothing in the statute requires
the dog to bark, growl, or bare its teeth. Instead, appellant
points to State v. Bravard, 1986 WL 11239 (12th Dist. Oct. 6,
1986) that held, “the legislature’s enactment of R.C. 955.28,
which provides that a dog that chases a person ‘can be killed at
any time or place,’ is a clear indication of the state’s policy
that a person chased by a dog has a right of self-defense.” Id.
at *2. Again, appellant reiterates that he proved that (1) he
observed the dog run toward his two young, visually-impaired
granddaughters, (2) James Calvano, who was with the girls,
yelled for help as the dog rapidly approached, (3) the dog did
not stop or respond to Calvano’s attempt to shoo or deter him,
and (4) based on his knowledge of the dog’s prior behavior and
his granddaughters’ disability, appellant reasonably believed
that the dog would cause physical injury to Calvano or the
girls.
{¶40} As set forth above, to decide whether the case sub
judice is an exceptional case in which the evidence weighs
heavily against conviction, this court must review the record,
weigh the evidence and all reasonable inferences, and consider
witness credibility. Martin, supra, 20 Ohio App.3d at 175. ROSS, 24CA15 24
However, a reviewing court must always bear in mind that
resolve. State v. Schroeder, 2019-Ohio-4136, ¶ 61 (4th Dist.);
State v. Wickersham, 2015-Ohio-2756, ¶ 25 (4th Dist.). Because
the trier of fact sees and hears the witnesses, an appellate
court will generally afford substantial deference to a trier of
fact's credibility determinations. Schroeder at ¶ 62.
Moreover, the jury has the benefit of seeing witnesses testify,
observing facial expressions and body language, hearing voice
inflections, and discerning qualities such as hesitancy,
equivocation, and candor. State v. Fell, 2012-Ohio-616, ¶ 14
(6th Dist.); State v. Pinkerman, 2024-Ohio-1150, ¶ 26 (4th
Dist.). Thus, an appellate court may reverse a conviction only
if the trier of fact clearly lost its way in resolving conflicts
in the evidence and created a manifest miscarriage of justice.
State v. Benge, 2021-Ohio-152, ¶ 28 (4th Dist.). Consequently,
only in extraordinary circumstances when evidence presented at
trial weighs heavily in favor of acquittal, will an appellate
court overturn a conviction on the manifest weight of the
evidence grounds. State v. Ridenour, 2023-Ohio-2713, ¶ 50 (12th
Dist.).
{¶41} In the case sub judice, we do not believe that this
case is one of those extraordinary cases. Here, the evidence
presented at trial does not weigh heavily in favor of acquittal. ROSS, 24CA15 25
Although the trial court pointed out that this is a close case,
for this court to conclude that a conviction is against the
manifest weight of the evidence the evidence must “weigh heavily
in favor of acquittal.” Thompkins, 78 Ohio St.3d at 387; accord
State v. Clinton, 2017-Ohio-9423, ¶ 166; State v. Lindsey, 87
Ohio St.3d 479, 483 (2000); State v. Nickell, 2025-Ohio-1232, ¶
45. Here, it does not.
{¶42} In the case sub judice, after our review of the
evidence adduced at trial, we cannot conclude that the evidence
weighs heavily against a conviction and the factfinder clearly
lost its way. Although appellant contends that the greater
number of witnesses testified that appellant had a reasonable
belief that the dog approached appellant’s grandchildren in a
menacing manner, the jury was entitled to assess witness
credibility and disbelieve this testimony. A jury’s credibility
determination may involve more than a simple mathematical
comparison of the number of witnesses each party may call to
testify at trial. See Thompkins, supra, 78 Ohio St.3d at 387
(weight of the evidence is not a question of mathematics); State
v. Linder, 111 Ohio App. 146, 156-157 (1st Dist. 1959)(number of
witnesses supporting claim of one or the other parties not to be
taken as basis for determination of disputed issue.); State v.
Mayhew, 71 Ohio App.3d 622, 632 (4th Dist. 1991) (trial court
must determine which evidence to believe, giving whatever weight ROSS, 24CA15 26
and credibility to witnesses and evidence it deems appropriate;
“the number of witnesses is immaterial.”); State v. Locker, 2002
WL 975226 (12th Dist. May 13, 2002)(simply because appellant had
twice as many witnesses does not necessarily follow that his
evidence has more weight than that of the state.); State ex rel.
Brannon v. Turner, 81 Ohio App. 47, 50 (2d Dist.
1947)(substantial evidence exists to support verdict and
manifest weight of evidence not determined by number of
witnesses on either side, but by impression their testimony
makes upon jury.)
{¶43} In the case sub judice, we do not believe that the
evidence adduced at trial reveals that the jury clearly lost its
way in resolving conflicts in the evidence and created a
manifest miscarriage of justice. Consequently, after our review
of the record, we conclude that ample competent, credible
evidence supports appellant's conviction. Thus, the jury
verdict is not against the manifest weight of the evidence.
{¶44} Accordingly, based upon the foregoing reasons, we
overrule appellant's first assignment of error.
II.
{¶45} In his second assignment of error, appellant asserts
that the trial court committed plain error when it failed to
instruct the jury on the statutory definition of “menacing ROSS, 24CA15 27
fashion.” Appellant concedes that this court is limited to a
plain-error review because he failed to timely object to the
trial court’s jury instructions. See State v. Gasper, 2024-
Ohio-4782, ¶ 14 (“A defendant who fails to object to jury
instructions waives all but plain error.”); accord State v.
Chasteen, 2024-Ohio-909, ¶ 10-11 (1st Dist.); State v.
Rodriguez, 2025-Ohio-53, ¶ 27 (1st Dist.).
{¶46} Generally, errors or defects that affect substantial
rights may be noticed, even though they were not brought to a
trial court's attention. Crim.R. 52(B). A defendant has the
burden to satisfy the plain error rule, and a reviewing court
may review the entire record when it considers the effect of any
error on substantial rights. State v. Delawder, 2012-Ohio-1923,
¶ 22 (4th Dist.), quoting State v. Davis, 2007-Ohio-3944, ¶ 22
(4th Dist.). For a reviewing court to find plain error, (1)
there must be an error, i.e., “a deviation from a legal rule,”
(2) the error must be plain, i.e., “an obvious defect in the
trial proceedings,” and (3) the error must have affected
“substantial rights,” i.e., it must have affected the outcome of
the proceedings. Delawder, id., State v. Barnes, 2002-Ohio-68.
However, a defective jury instruction will not rise to the level
of plain error unless, but for the alleged erroneous
instruction, a defendant shows that the outcome of the trial
would have been different. State v. Campbell, 69 Ohio St.3d 38, ROSS, 24CA15 28
41 (1993); State v. McCown, 2006-Ohio-6040 (10th Dist.), ¶ 38;
State v. Cunningham, 2004-Ohio-7007, ¶ 56. See also State v.
Barker, 2022-Ohio-3756 (9th Dist.)(improper jury instructions do
not constitute plain error unless outcome of the trial would
clearly have been different). Finally, even if a reviewing
court finds plain error, the error should only be corrected
where it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings” or when necessary “to
prevent a manifest miscarriage of justice.” State v. Bond,
2022-Ohio-4150, ¶ 35. Correction of the error is necessary in
this case to prevent a manifest miscarriage of justice.
{¶47} Trial courts are charged with giving juries “complete
and accurate” instructions that adequately reflect the issues
argued in the case before them. State v. Sneed, 63 Ohio St.3d
3, 9 (1992). “A criminal defendant has the right to expect that
the trial court will give complete jury instructions on all
issues raised by the evidence.” State v. Howard, 2007-Ohio-
6331, ¶ 26 (4th Dist.). Trial courts should ordinarily give
requested jury instructions if they are correct statements of
law applicable to the facts in the case, and reasonable minds
might reach the conclusion sought by the instruction. Id.,
citing Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591
(1991); State v. Hodges, 2025-Ohio-2050, ¶ 58 (4th Dist.).
{¶48} When reviewing errors in a jury instruction, an ROSS, 24CA15 29
appellate court must consider a jury charge as a whole. State
v. Brock, 2024-Ohio-1036, ¶ 28 (4th Dist.), citing State v.
Huish, 2023-Ohio-365, ¶ 54 (10th Dist.), citing Cromer v.
Children's Hosp. Med. Ctr. of Akron, 2015-Ohio-229, ¶ 35-36.
However, “[a]n unnecessary, ambiguous, or even affirmatively
erroneous portion of a jury charge does not inevitably
constitute reversible error.” Id. When a jury instruction
incorrectly states the law, a reviewing court will apply a mixed
de novo and abuse of discretion standard of review, examine the
jury charge as a whole and determine “whether the jury charge
probably misled the jury in a matter materially affecting the
complaining party's substantial rights.” Id.
{¶49} In State v. Woods, 2016-Ohio-661, (10th Dist.) the
court found plain error when the trial court failed to define
"purpose" in the jury instructions because the omission
prejudiced the defendant and affected the trial outcome.
Conversely, in State v. Blackburn, 2003-Ohio-605 (11th Dist.),
the court concluded that the failure to define "purposely" did
not amount to plain error because the lay definition is
sufficiently similar to the statutory definition, and the trial
outcome would not have been different. Thus, whether an
omission constitutes plain error may depend on the specific
facts of a case and whether the omission hindered the jury’s
deliberations. ROSS, 24CA15 30
{¶50} Appellant contends that Ohio courts have consistently
found that the failure to instruct a jury on the statutory
definition of an element of the offense constitutes error.
Appellant cites State v. White, 2015-Ohio-492, ¶ 53, in which
the Supreme Court of Ohio held that jury instructions were
potentially misleading, because without a proper instruction on
the use of deadly force and justification, the court failed to
give the jury the instructions necessary to weigh the evidence
and to discharge its duty as fact-finder. Id. Appellant also
cites State v. Fader, 2024-Ohio-4921 (2d Dist.). In Fader, the
Second District held that the trial court's failure to define
the terms “reasonable doubt” and “beyond a reasonable doubt” for
the jury constituted reversible error under either structural
error or plain error analysis. Without the statutory definition
– or any definition at all – each juror could require different
levels of proof, and that could harm both the accused and the
State. Id. at ¶ 15-17.
{¶51} Appellant argues that when a court fails to instruct
on an element that is not common usage or when a definition is
potentially misleading, the court’s omission constitutes
reversible error. Appellant argues that although the terms
“menacing” and “fashion” are words of common usage, their usage
in this context is not common - as evidenced by the specific and
detailed definition provided in R.C. 955.11(A)(2): “menacing ROSS, 24CA15 31
fashion” means that a dog would cause any person being chased or
approached to reasonably believe that the dog will cause
physical injury to that person.”
{¶52} Appellee, on the other hand, contends that simply
because the statutory definition appellant cites does not apply
to this offense, no plain error occurred. Appellee points out
that trial counsel acknowledged that R.C. 955.28 does not define
the term “menacing.” Further, the statute that defines
“menacing fashion,” R.C. 955.11(A), states explicitly in the
introductory paragraph of definitions as used in this section.
Therefore, the definition does not apply to the phrase “menacing
fashion” as used in R.C. 955.28. In addition, appellee notes
that the trial court provided a verbatim recitation of the
statute regarding the affirmative defense in its instructions to
the jury. Finally, appellee argues that the phrase “menacing
fashion” is one of common usage and used in the ordinary sense
and that terms of common usage need not be defined for the jury.
See State v. Colonel, 2023-Ohio-3945, ¶ 49 (4th Dist.)(“know or
have reasonable cause to believe” is not a technical phrase nor
does it have a meaning not generally understood by the average
juror); State v. Gross, 2002-Ohio-5524, ¶ 104 (“escaping
detection, “other offense,” and “principal offender,” are “terms
of common usage” and need not be defined for the jury).
{¶53} In the case at bar, we believe that the language used ROSS, 24CA15 32
in the trial court’s jury instruction contained terms of common
usage, and should be understood by an average juror. The
language did not include a technical phrase. The jury
apparently understood the phrase as it did not ask for
clarification or definition, and appellant does not explain how
the jury could have attributed an incorrect meaning to the
phrase. Colonel at ¶ 49. Rather, it appears that after the
hearing the testimony the jury did not believe that the evidence
adduced at trial showed that the dog approached the girls and
Calvano in a “menacing fashion.” Thus, we conclude that
appellant failed to establish plain error and we overrule
appellant’s second assignment of error.
III.
{¶54} In his final assignment of error, appellant asserts
that his trial counsel rendered ineffective assistance of
counsel in violation of his constitutional guarantees. In
particular, appellant contends that counsel failed to object to
the trial court’s failure to instruct the jury on the statutory
definition of “menacing fashion.” However, our resolution of
appellant’s second assignment of error renders this assignment
of error moot.
{¶55} Accordingly, for all of the foregoing reasons, we
affirm the trial court's judgment. ROSS, 24CA15 33
JUDGMENT AFFIRMED. ROSS, 24CA15 34
JUDGMENT ENTRY
It is ordered that the judgment be affirmed. Appellee shall recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________ Peter B. Abele, Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.