State v. Walston

2019 Ohio 1699

• Court: Ohio Court of Appeals
• Decided: May 6, 2019
• Docket: CA2018-04-068
• Status: Published

Opinion

[Cite as State v. Walston, 2019-Ohio-1699.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2018-04-068

: OPINION - vs - 5/6/2019 :

MARY WALSTON, :

Appellant. :

CRIMINAL APPEAL FROM THE HAMILTON MUNICIPAL COURT Case No. 17CRB04952

Thomas A. Dierling, City of Hamilton Prosecuting Attorney, 345 High Street, Hamilton, Ohio 45011, for appellee

Repper-Pagan Law, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044, for appellant

PIPER, J.

{¶ 1} Appellant, Mary Walston, appeals from her conviction in the Hamilton Municipal

Court for one charge of failing to confine or control a dog.

{¶ 2} On November 8, 2017, Kurt Merbs, a Butler County Dog Warden, responded to

a call that a puppy was attacked in Hamilton, Ohio. Upon arrival, Merbs met Nicholas

Feazel, the owner of the injured puppy. Feazel indicated he and his puppy were in his Butler CA2018-04-068

backyard when Walston's dog jumped Walston's fence, came through Feazel's fence, and

attacked him and his puppy. Merbs observed puncture wounds and a protrusion on the

puppy, and noted that it was in need of medical attention. After Feazel left for the animal

hospital, Merbs looked in Walston's backyard and observed two border collies.

{¶ 3} Walston was not home the day of the incident, but subsequently met with

Merbs at his office on November 14, 2017. At that meeting, Walston indicated the dog in

question belonged to her daughter, and that Walston was watching it while her daughter was

out of town. Merbs then issued Walston a citation for failure to confine or control a dog in

accordance with R.C. 955.22(C).

{¶ 4} A hearing was held and Walston entered a not guilty plea. The court later

issued a judgment entry finding Walston guilty of failing to restrain the dog in violation of R.C.

955.22(C). Appellant was sentenced to two years of community control, fined $100 plus fees

and court costs, and ordered to pay restitution of $5,182.03. Walston timely filed a notice of

appeal. Thereafter, Walston motioned this court for a limited remand related to the

jurisdictional facts within Walston's citation. We granted the motion, and a hearing was held

to supplement the record.

{¶ 5} Walston appeals her conviction, raising two assignments of error for our review.

Assignment of Error No. 1:

{¶ 6} THE COURT LACKED SUBJECT-MATTER JURISDICTION.

{¶ 7} In her first assignment of error, Walston argues the municipal court lacked

subject-matter jurisdiction over this matter because the complaint was defective under

Crim.R. 3.

{¶ 8} Subject-matter jurisdiction involves a court's power to hear a case. State v.

Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, ¶ 10. As a result, "the issue can never be

waived or forfeited and may be raised at any time." Id. The filing of a valid complaint is a -2- Butler CA2018-04-068

necessary prerequisite to a municipal court's acquisition of subject-matter jurisdiction. Id. at ¶

12; State v. Dees, 12th Dist. Butler No. CA2015-09-166, 2016-Ohio-2772, ¶ 7.

{¶ 9} Crim.R. 3 defines what constitutes a valid complaint. Mbodji at ¶ 12. Crim.R. 3

requires a complaint to contain "a written statement of the essential facts constituting the

offense charged," "state the numerical designation of the applicable statute or ordinance,"

and "be made upon oath before any person authorized by law to administer oaths."

{¶ 10} After Walston moved this court for a limited remand to the municipal court, a

hearing was held to supplement the record. At that hearing, the parties stipulated to the

following facts: Merbs was unable to make contact with Walston on November 8, 2017, the

date of the incident. The two made contact on November 14, 2017, whereupon Merbs

served Walston with a citation, which was then signed by both Merbs and Walston. After

their meeting, Merbs "returned to his office and provided the citation to his administrative

staff, and at that time the document was notarized by a Notary that is no longer employed."

While notarizing the document, the Notary erroneously put the date of the offense, November

8, 2017, rather than the date the citation was delivered to Walston, November 14, 2017.

{¶ 11} Here, Walston's argument rests on a comparison of the complaint provided to

Walston on November 14, 2017, and the complaint filed with the municipal court.

Specifically, the copy provided to Walston contains Merbs' signature and the filed copy is

witnessed by the Notary's signature. As such, Walston contends that the complaint is not

valid because it was not signed in the presence of a notary. We disagree.

{¶ 12} The Ohio Supreme Court has recognized that "[a] jurat is not part of an

affidavit, but is simply a certificate of the notary public administering the oath, which is prima

facie evidence of the fact that the affidavit was properly made before such notary." Stern v.

Bd. of Elections of Cuyahoga Cnty., 14 Ohio St. 2d 175, 181 (1968). "Crim.R. 3 does not

contain any express reference to the presence of a jurat in a complaint; instead, as to the -3- Butler CA2018-04-068

'oath' requirement, the rule only states that the complaint must be made under oath before a

person who has the power to administer the necessary oath." State v. Davies, 11th Dist.

Ashtabula No. 2012-A-0034, 2013-Ohio-436, ¶ 24. As such, even if the jurat is defective,

"the validity of the complaint can still be upheld if the prosecution can otherwise show, based

upon other language in the document or evidence outside the record, that a proper oath was

administered by a person duly authorized to take the oath." City of Miamisburg v. Rinderle,

2d Dist. Montgomery No. 26094, 2015-Ohio-351, ¶ 5. Notably, "[i]n the ordinary case the fact

that the complaint is under oath is shown by the signature of the officer administering the

oath." Davies at ¶ 25.

{¶ 13} According to the record, the complaint indicates that a proper oath was

administered to Merbs and that he swore to the complaint after the date of Walston's offense.

The presence of Merbs' signature on the complaint prior to its notarization does not suggest

that the oath was not duly administered by the Notary. Rather, the record reflects that the

Notary signed the document verifying the complaint and/or affidavit were sworn under oath

by Merbs in her presence. While the date was inaccurate, the parties stipulated that the

Notary made a typographical error, and the complaint was in fact notarized on November 14,

2017. Moreover, there is no evidence in the record that the Notary did not administer the

oath to Merbs, as attested to within the complaint. Accordingly, in light of the Notary's

signature and seal, the record supports that the complaint was made under oath before a

person who has the power to administer the necessary oath and therefore, satisfies Crim.R.

3.

{¶ 14} We also reject Walston's argument that the complaint failed to sufficiently

allege that Walston violated R.C. 955.22(C). "The purpose of a criminal complaint is to

inform the accused of the identity and essential facts constituting the offense charged." State

v. Stefanopoulos, 12th Dist. Butler No. CA2011-10-187, 2012-Ohio-4220, ¶ 21. A complaint -4- Butler CA2018-04-068

is not defective because it fails to allege a specific statutory subsection, so long as the

substance of the complaint is sufficient to inform the accused of the charges against her.

State v. Doans, 12th Dist. Butler No. CA2007-10-258, 2008-Ohio-5423, ¶ 8. While the exact

statutory language does not have to be expressed, language equivalent to the crime's

essential elements must be present. State v. Florence, 12th Dist. Butler No. CA2013-08-148,

2014-Ohio-2337, ¶ 22.

{¶ 15} Walston was generally charged with violating R.C. 955.22(C). Pursuant to R.C.

955.22(C)(1), "no owner, keeper, or harborer of any dog shall fail to * * * [k]eep 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[.]"

{¶ 16} The complaint states: "The undersigned being duly sworn, upon his oath,

deposes and says that the person whose name is indicated above, [Walston,] being the

owner, keeper, or harborer of a" black and white female border collie at Carmen Avenue on

"November 8, 2017 at 2:25 pm in Hamilton, Butler County, Ohio did unlawfully violate [R.C.]

955.22(C) – Failure to keep dog either physically restrained by a leash, tether, adequate

fence, supervision, or secure enclosure upon the premises. Failure to Confine or Control a

Dog or Nuisance Dog."

{¶ 17} Based on the above language, we find the complaint's substance was sufficient

to inform Walston that she was charged with a violation of R.C. 955.22(C)(1). Specifically,

the complaint used language to describe Walston's unlawful conduct which followed the

language of R.C. 955.22(C)(1). Additionally, it informed Walston of the essential facts

constituting the offense charged and each of the essential elements were present in the

complaint. Under such circumstances, the exact statutory language is not required. Doans

at ¶ 9; State v. Broughton, 51 Ohio App.3d 10, 11 (12th Dist.1988).

{¶ 18} Accordingly, we find the complaint adequately invoked subject-matter -5- Butler CA2018-04-068

jurisdiction in the municipal court, and Walston's first assignment of error is overruled.

{¶ 19} Assignment of Error No. 2:

{¶ 20} WALSTON'S CONVICTION WAS UNLAWFUL.

{¶ 21} In her remaining assignment of error, Walston argues that her conviction is not

supported by sufficient evidence, and was therefore unlawful.

{¶ 22} When reviewing the sufficiency of the evidence underlying a criminal conviction,

an appellate court examines the evidence in order to determine whether such evidence, if

believed, would convince the average mind of the defendant's guilt beyond a reasonable

doubt. State v. Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. 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." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph

two of the syllabus.

{¶ 23} The complaint states Walston, "being the owner, keeper, or harborer of [the]

dog," violated R.C. 955.22(C). In Ohio, the terms "owner," "keeper," and "harborer" are

separately defined. Thompson v. Irwin, 12th Dist. Butler No. CA97-05-101, 1997 Ohio App.

LEXIS 4728, *5 (October 27, 1997). The owner is the person to whom the dog belongs, and

the keeper is the one having physical charge or care of the dog. Id. A "harborer" is one who

has possession and control of the premises where the dog lives and silently acquiesces to

the dog's presence. State v. Chambers, 12th Dist. Butler No. CA2010-06-136, 2011-Ohio-

1187, ¶ 9.

{¶ 24} In this matter, Walston argues the state failed to present sufficient evidence

that Walston harbored the dog and that her fence was inadequate to confine the dog. At the

hearing, Feazel testified that he observed the dog, which was not restrained or tethered in

any way, run through the bottom rail of his fence and attack his puppy. He recognized the -6- Butler CA2018-04-068

dog as Walston's larger border collie. At that time, Feazel ran up to the dog and it

momentarily ran away. Seconds later, the dog returned and attempted to attack the puppy

again. Feazel shoved the dog away, causing the dog to bite his hand before it returned to

Walston's yard.

{¶ 25} The state then presented testimony from Merbs, the dog warden who

investigated the attack. Merbs testified that he interviewed Feazel shortly after the attack,

and that Feazel described the attacking dog as Walston's "bigger dog." While at the scene,

Merbs observed two border collies in Walston's backyard, one slightly larger than the other.

Merbs further testified that during his meeting with Walston, he explained the accusations.

According to Merbs, Walston was cooperative and indicated that the dog in question

belonged to her daughter. She further explained that although she watched the dog "quite a

bit" while her daughter travelled, it lived in Michigan with her daughter. Ultimately, Merbs

issued Walston a citation and advised her that the dog should remain in Michigan.

{¶ 26} In her defense, Walston confirmed that at the time of the incident, she was

watching the dog while her daughter was out of town for two weeks. She further admitted the

dog was kept in the fenced in area of her backyard, with access to her home's garage for

food, water, and shelter from the yard, and that it was in the backyard the day of the

accident. Notably, Walston testified, with support from her daughter's testimony,

photographs, and videos, that the dog could not jump high enough to clear her fence and that

it was out of character for the dog to behave aggressively. As such, Walston contended the

scenario described by Feazel was not believable.

{¶ 27} After a thorough review of the record, we find the evidence sufficient to

establish the state's prima facie showing that Walston was the keeper of the dog in question,

and that Walston failed to keep the dog physically confined or restrained upon her property.

Specifically, the state presented testimony that if believed, established Walston was -7- Butler CA2018-04-068

responsible for watching the dog and that she provided it with food, water, and shelter while

her daughter was away. As such, we find Walston had physical charge or care of the dog

while the daughter was out of town. While Walston contends the state based the charge

upon Walston's classification as a "harborer" of the dog, the complaint indicates Walston was

charged as the "owner, keeper, or harborer" of the dog. The testimony at the hearing

demonstrated Walston was the keeper of the dog in question, and therefore exposed

Walston to criminal liability.

{¶ 28} Furthermore, the testimony, if believed, established the dog was not tethered or

restrained, and escaped from Walston's backyard while she was not home, despite the

fencing she had in place. While Walston called into question the believability of Feazel's

story, she did not present any evidence to contradict his first-hand observations of the attack,

or his testimony that the larger border collie escaped to his backyard. Accordingly, due to the

dog's apparent ability to escape, Walston failed to comply with the requirements of R.C.

955.22(C).

{¶ 29} In light of the above, we conclude that the evidence is sufficient to support

Walston's conviction and Walston's second assignment of error is overruled.

{¶ 30} Having found Walston's final assignment of error without merit, we hereby

affirm Walston's conviction for failing to restrain a dog.

{¶ 31} Judgment affirmed.

HENDRICKSON, P.J., and S. POWELL, J., concur.

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