[Cite as State v. Breitenstein,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellate Case No. 24325 Plaintiff-Appellant : : Trial Court Case No. 2010-CRB-3313 v. : : SCOTT A. BREITENSTEIN : (Criminal Appeal from : (Dayton Municipal Court) Defendant-Appellee : :

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OPINION

Rendered on the 2nd day of September, 2011.

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JOHN DANISH, Atty. Reg. #0046639, and STEPHANIE L. COOK, Atty. Reg. #0067101, by AMY B. MUSTO, Atty. Reg. #0071514, City of Dayton Prosecutor’s Office, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellant

MELISSA A. PFAHLER, Atty. Reg. #0086031, Law Office of the Public Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellee

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HALL, J.

{¶ 1} Scott Breitenstein and Christopher Quedeweit live in the same duplex,

Breitenstein in the upper unit, Quedeweit in the lower, and they share the back yard.

They both own dogs. On April 15, 2010, while Breitenstein was sleeping, Eric Smith,

a neighbor, entered Breitenstein’s unit, put a leash on Breitenstein’s dog, and took it 2

into the back yard. Smith often did this. Quedeweit and his dog were in the back yard

at the time. When Smith and Breitenstein’s dog came outside, Quedeweit picked up

his own dog and started to walk toward the door to his unit. Breitenstein’s dog got

away from Smith. The dog ran up to Quedeweit and bit him three times. Closing

Quedeweit’s wounds required 45 stitches.

{¶ 2} Both Breitenstein and Smith were charged under Dayton’s dog-control

ordinance, R.C.G.O. 91.50(A)(5). While Smith pleaded guilty, Breitenstein

maintained his innocence, and a bench trial was held in Dayton Municipal Court.

Breitenstein did not dispute that he owned the dog, nor did he dispute that it was his

dog that bit Quedeweit. Breitenstein argued that because he was sleeping at the time

he is not culpable. The municipal court agreed, finding Breitenstein not guilty after

concluding that the city failed to prove the ordinance’s culpability element.

{¶ 3} The city appealed.

{¶ 4} In a single assignment of error, the city argues that the municipal court

erred by requiring it to prove a culpability element. The city contends that R.C.G.O.

91.50 imposes strict liability for violations. We agree.

{¶ 5} To prove a violation of R.C.G.O. 91.50(A)(5), the city must prove these

elements:

{¶ 6} “(A) No person owning, keeping, possessing, harboring, maintaining, or

having the care, custody, or control of a dog shall suffer or permit such dog to:

{¶ 7} “* * *

{¶ 8} “(5) Bite or otherwise cause physical harm to any other person * * *.”

{¶ 9} This Court directly addressed the strict-liability nature of this ordinance in 3

State v. Thaler, Montgomery App. No. 22579,

. In Thaler, we

concluded that “R.C.G.O. § 91.50 is a strict liability offense.” Id. at ¶30. Breitenstein

concedes Thaler’s holding. But he urges us to reconsider it.

{¶ 10} Breitenstein first argues that the present case must be distinguished

from Thaler on its facts, like the municipal court concluded. While noting Thaler, the

court concluded that it did not control here because of substantial fact differences.

Construing the ordinance, the court said that the culpability requirement is “suffer or

permit the dog to bite.” The court found that because Breitenstein’s dog was under

Smith’s control at the time and because Breitenstein was unaware that Smith had

taken the dog outside, the city failed to prove that Breitenstein suffered or permitted

his dog to bite Quedeweit. But factual differences are irrelevant to the issue. “The

interpretation of a statute involves a purely legal question.” Washington Cty. Home v.

Ohio Dept. of Health,

,

.

{¶ 11} Breitenstein also points out that the ordinance does not criminalize

mere ownership or possession of a dog but rather criminalizes an owner’s suffering

or permitting his dog to bite. If we were to find that the ordinance imposes strict

liability, Breitenstein asserts, the ordinance’s “suffer or permit” language would be

rendered superfluous. Breitenstein is correct that the ordinance criminalizes an

owner’s suffering or permitting his dog to bite. This is the act (not the level of

culpability) that the city must prove. But because the ordinance imposes strict

liability, the city need not prove (as it would for a non-strict liability offense) that the

act was done with a culpable mental state–purposely, knowingly, recklessly, or

negligently. The “suffer or permit” language is not rendered superfluous. 4

{¶ 12} None of the law on which we based our holding in Thaler has changed.

We note that other courts have held that similar ordinances impose strict liability.

See Highland Heights v. John Manos, Cuyahoga App. No. 84238,

(holding that an ordinance providing that “No person owning, harboring or having the

care or control of a vicious dog shall suffer or permit such animal to go unconfined

on the premises of such person” imposes strict liability); Gates Mills v. Welsh (2001),

(holding that a similar dog confinement statute provided

for strict liability such that “defendant’s considerable efforts to comply with the statute

were irrelevant as a defense”). But, see, Akron v. Meissner (1993),

(holding that a city ordinance that prohibited owners suffering or permitting their dogs

to bite required proof that the defendant “recklessly” permitted her dog to bite).

Breitenstein fails to persuade us to reconsider Thaler’s holding. That holding–that

R.C.G.O. 91.50 imposes strict liability for violations–controls the present case.

{¶ 13} The municipal court found that Breitenstein did not dispute that he

owned the dog and did not dispute that it was his dog that bit Quedeweit while the

latter was in their shared back yard. These facts satisfy the essential elements of

R.C.G.O. 91.50(A)(5). See Thaler, at ¶31. The municipal court should have

concluded that Breitenstein was strictly liable for the offense. The appellant’s

assignment of error is well taken. Nevertheless, our decision does not affect the

final judgment of the trial court as to this defendant because this is a prosecution

appeal under R.C. 2945.67. Therefore, that judgment is affirmed.

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CELEBREZZE, J., concurs.

FROELICH, J., concurring:

{¶ 14} I cannot find any justification for overruling our precedent in Thaler or

State v. Squires (Montgomery 1996),

, that anyone permitting

his or her dog to bite any other person is guilty regardless of his or her mental state

at the time he or she commits the act.

{¶ 15} However, I write separately to emphasize that the prosecution still must

prove a voluntary act on the part of the defendant. In this case, the city produced

evidence that the defendant did engage in the voluntary act of “suffering or

permitting” when it proved that he owned, kept, possessed, harbored, maintained,

etc. . .the dog at the time it bit another person.

{¶ 16} The ordinance provides for an affirmative defense if the person was

trespassing. R.C.G.O. 91.5(D)(2)1 Further, the defendant could have argued that

his suffering or permitting (i.e., his failure to not permit) the bite was an involuntary

act or not even his own act, and thus that the city did not prove the necessary actus

reus. R.C. 2901.21(A)(1). In such a scenario, the dog’s owner did not “suffer or

permit” anything and would be not guilty despite the strict liability nature of the

offense.

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(Hon. Frank D. Celebrezze, Jr. Eighth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)

1 There is nothing inconsistent with a strict liability offense’s having an affirmative defense. See, e.g., State v. Williams, Montgomery App. No. 23546,

, ¶7, finding that “impossibility” is a permissible affirmative defense to the strict liability offense of failure to register. 6

Copies mailed to:

John Danish / Stephanie L. Cook Amy B. Musto Melissa A. Pfahler Hon. John S. Pickrel