[Cite as State v. Thompson,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY

STATE OF OHIO, CASE NO. 7-16-10

PLAINTIFF-APPELLEE,

v.

RICHARD THOMPSON, OPINION

DEFENDANT-APPELLANT.

Appeal from Napoleon Municipal Court Trial Court No. 16-CRB-0296

Judgment Affirmed

Date of Decision: March 6, 2017

APPEARANCES:

Scott T. Coon for Appellant

Paul A. Skaff for Appellee Case No. 7-16-10

WILLAMOWSKI, J.

{¶1} Defendant-appellant Richard Thompson (“Thompson”) appeals his

conviction for failure to confine a dog in violation of R.C. 955.22(C)(1) from the

Napoleon Municipal Court. On appeal, Thompson argues that the trial court erred

by (1) giving improper jury instructions, (2) wrongly excluding relevant evidence,

and (3) failing to order a mistrial after the State allegedly engaged in prosecutorial

misconduct during the closing arguments. For the reasons set forth below, the

judgment of the lower court is affirmed.

{¶2} Thompson is the registered owner of a pit bull named Mack. Tr. 170.

In 2015, Mack bit people on at least three known occasions. Tr. 172. Thompson

was charged with failure to confine a dog after two of these incidents and pled guilty

both times. Tr. 134-135. Ex. 2, 3. On March 22, 2016, one of Thompson’s

neighbors, Steven Royal (“Royal”), filed a complaint with the Henry County Dog

Warden that alleged Mack was running loose on his property in Liberty Center. Tr.

36. Doc. 1. In his statement to the dog warden, Royal said that he was pulling into

his driveway in his car when a dog began circling his vehicle and snapping at the

tires. Doc. 1. Tr. 73. At trial, Royal testified that he got out of his car, grabbed a

hammer, and chased the dog out of his yard. Tr. 73. He testified that this dog was

Thompson’s pit bull and claimed that Mack had bitten him roughly a year before

this incident, which is how he could identify the dog. Tr. 73, 84.

{¶3} At trial, Royal’s wife, Anna Mae Royal, testified that she was in the car

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with her husband at the time of this incident and witnessed Royal chase the dog off

of their property with a hammer. Tr. 88-89. When asked to describe the dog that

was circling her vehicle, she said it was a “black dog, a Pitbull, and it [had] a white

eye and the rest of it [was] black.” Tr. 88. She later said the white patch was around

the dog’s left eye. Tr. 92. She claimed that she could identify the dog as

Thompson’s pit bull because the dog had been on their property before and had

bitten her husband previously. Tr. 89.

{¶4} One of Royal’s neighbors, Mark Jensen (“Jensen”), testified that he

witnessed Thompson’s pit bull run after Royal’s vehicle on March 22, 2016. Tr.

47. While Jensen could not see Mack leave Thompson’s property from his vantage

point, he testified that he could see that Mack was not tethered or confined. Tr. 62,

65. Jensen identified the dog as Thompson’s pit bull, Mack. Tr. 47. While he

admitted that several other neighbors in the vicinity owned similar looking dogs,

Jensen claimed he could recognize Mack because this dog had attacked and bitten

his son previously. Tr. 48, 58.

{¶5} At the beginning of the defense’s case in chief, the defense counsel

requested a photograph of Mack be introduced into evidence to corroborate

Thompson’s description of his pit bull. Tr. 99. Since the photograph was on

Thompson’s phone, the defense asked permission to email the photograph to the

court so that the picture could be printed and used as an exhibit.

The prosecution

objected because the witnesses for the State did not have the opportunity to identify

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the dog in the picture as the dog they had witnessed on the date of the incident.

Since the picture was not available for the State’s case in chief, the judge did not

allow the picture to be admitted. Tr. 100.

{¶6} The defense called Thompson’s daughter, Mary Thompson, to testify.

She said that all three of Thompson’s dogs, including Mack, were upstairs with

Thompson when she left the house before the incident occurred. Tr. 102-104. She

also described Mack, saying that he was roughly “50/50” white and black with a

black patch around his right eye. Tr. 105-106. On cross examination, the prosecutor

asked Mary Thompson why she looked towards her father before responding and

suggested that Mary Thompson was seeking her father’s approval before answering

questions. Tr. 112. Mary Thompson denied both seeking cues from her father while

testifying and coordinating her testimony with him before the trial. Tr. 112-113.

Thompson’s wife, Dawn Thompson, also testified and described Mack, saying,

“Mack is black and white with a black eye patch on his right eye.” Tr. 115-116.

While she admitted that she was at work at the time of the incident, she stated that

she made sure that all of their dogs were inside the house when she left for work.

Tr. 118.

{¶7} Thompson then took the stand and contradicted Anna Mae Royal’s

description of Mack, stating,

Mack has got a patch over his right eye that is black; the rest of his face is white. He has a little bit of black on his ears; he’s got mostly black on his ears. He has mainly black spots on his back

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and then he’s got white spots in between all the black spots so he’s kind of like a 50/50 mix.

Tr. 130-131. Thompson then testified that he was asleep at the time of the incident

but claimed that all of his dogs were with him when he went to sleep and that all of

his dogs were present with him when he was awakened by the dog warden’s call,

which informed him about Royal’s complaint. Tr. 138-139, 144. Thompson also

testified that Royal could not have been bitten by Mack a year prior to the March 22

incident as Thompson only had Mack since September of 2015. Tr. 170.

{¶8} During his closing argument, the prosecutor discussed the testimony of

Mary Thompson, saying,

We also heard testimony from their [the defense’s] witnesses that this family has never discussed this since March 22. I don’t know if you caught it but young Ms. Thompson, every time a question was asked, she looked immediately to her dad. Testimony was rehearsed there is no doubt in my mind.

Tr. 177. Defense counsel objected to this statement, argued that the prosecutor was

not permitted to give his opinion of the witnesses, and moved for a mistrial. Tr.

177-178. The court denied the request for a mistrial, saying, “If there was any

improper comment…then I don’t feel overall that it cannot be overcome by the

instructions that I will give in closing arguments.” Tr. 179.

{¶9} After closing arguments, defense counsel objected to the portion of the

jury instructions defining a strict liability offense. The instructions the court issued

stated,

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Strict liability offenses are enforced irrespective of any guilty intent. The defendant’s purpose is irrelevant. You may find the defendant guilty without regard to the owners, keepers, harborers, or handlers’ negligence, recklessness or other fault.”

Tr. 199. Defense counsel proposed the following as an alternative: “the State need

only prove that the accused engaged in a voluntary act or an omission to perform an

act or duty which he is capable of performing.” Tr. 195. Mixed into this objection

was the argument that defense counsel’s alternative jury instruction would protect

Thompson if the jurors found that “someone else [besides Thompson] did

something” that resulted in a violation of R.C. 955(C).1 Tr. 190. The prosecution,

however, objected to this proposed instruction, arguing that this alternative added

an additional element for the State to prove. Tr. 193-194. The court denied defense

counsel’s motion on the grounds that these alternative instructions “seem to suggest

a further element beyond what is required in the statute….” Tr. 195.

{¶10} After the jury returned a verdict of guilty, the court sentenced

Thompson on June 28, 2016. On appeal, Thompson raises the following

assignments of error.

First Assignment of Error

The court erred in improperly instructing to the jury as to the elements of the offense charged.

1 On appeal, Thompson alleges the jury instructions contain two erroneous provisions. At trial, he raised one objection that specifically identified the provision in the jury instructions discussing the strict liability nature of this offense. However, in articulating his objection, he touched on the second issue that he raises on appeal. In his brief, he merely separates these related concerns into two fully developed, distinct arguments.

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Second Assignment of Error

The court erred in excluding relevant evidence and abused its discretion in using the most severe sanction in excluding relevant evidence offered by the appellant.

Third Assignment of Error

The court erred in failing to declare a mistrial upon the State engaging in prosecutorial misconduct.

We will consider these assignments of error in this order.

Jury Instructions

{¶11} In his first assignment of error, Thompson alleges that the trial court

issued improper jury instructions. “In reviewing the sufficiency of jury instructions

given by a trial court, the proper standard of review…is whether the trial court’s

refusal to give a requested jury instruction constituted an abuse of discretion under

the facts and circumstances of the case.” Schnipke v. Safe-Turf Installation Group,

L.L.C.,

,

,

. “An abuse of

discretion is more than an error of judgment; rather, it implies that the trial court's

decision was unreasonable, arbitrary, or capricious.” Heilman v. Heilman, 3d Dist.

Hardin No. 6–12–08,

. “When applying the abuse of

discretion standard, a reviewing court is not free to merely substitute its judgment

for that of the trial court.” In re Jane Doe 1,

,

(1991).

{¶12} In this case, Thompson argues that the jury instructions were deficient

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in two different respects. The first portion of the jury instructions that Thompson

alleges to be improper reads as follows:

This is a strict liability offense. Strict liability offenses are enforced irrespective of any guilty intent. The defendant’s purpose is irrelevant. You may find the defendant guilty without regard to the owners, keepers, harborers, or handlers’ negligence, recklessness or other fault.

Tr. 198-199. Consequently, during the trial, Thompson requested the trial court to

include this language in the jury instructions in lieu of the strict liability provision:

For a violation of R.C. 955.22(C), failure to confine a dog, the State need only prove that the accused engaged in a voluntary act or an omission to perform an act or duty which he is capable of performing.

Tr. 195. The State objected to this alternative provision, arguing that this wording

essentially adds an element to the crime that is not included in the statute. Further,

the State argued that case law has consistently interpreted a violation of R.C.

955.22(C) to be a strict liability offense.

The court then declined to insert this

wording in place of the strict liability language as this provision would “seem to

suggest a further element beyond what is required in the statute.” Tr. 194-195.

{¶13} On appeal, Thompson argues that this jury instruction was in conflict

with R.C. 2901.21(A), which defines the prerequisites for finding criminal liability

under Ohio law. R.C. 2901.21(A) reads:

(A) Except as provided in division (B) of this section, a person is not guilty of an offense unless both of the following apply:

(1) The person’s liability is based on conduct that includes either

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a voluntary act, or an omission to perform an act or duty that the person is capable of performing;

(2) The person has the requisite degree of culpability for each element as to which a culpable mental state is specified by the language defining the offense.

R.C. 2901.21(A). Thompson argues that the strict liability provision of the jury

instructions allowed him to be convicted of a criminal offense without the jury first

having to find that he possessed a culpable mental state. Further, this instruction

also allowed the jury to find him guilty without deciding that he had acted or failed

to act to perform a duty he was capable of performing. R.C. 2901.21(A).

{¶14} We do not find Thompson’s argument persuasive. First, R.C. 2901.21

contains an exception to the two prerequisites for criminal liability that Thompson

points to in his argument. R.C. 2901.21(A) expressly alludes to this exception for

strict liability offenses in R.C. 2901.21(B), which reads in relevant part:

(B) When the language defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense.

R.C. 2901.21(B). Courts in Ohio have consistently interpreted the failure to confine

a dog in violation R.C. 955.22(C) as a strict liability offense that falls under

2901.21(B). State v. Judge, 1st Dist. Hamilton No. C-880317,

, 1

(April 19, 1989); State v. Squires,

,

(2d Dist. 1996); Middleburg Hts. v. Troyan, 8th Dist. Cuyahoga Nos. 103710,

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103711, 103712, and 103713,

; State v. Miller, 9th Dist.

Wayne No. 2820,

(Feb. 23, 1994); State v. Campbell, 10th Dist.

Franklin No. 08AP–816,

, ¶ 26. See State v. Shelton, 3d Dist. Van

Wert Nos. 15-2000-14 and 15-2000-15,

(Dec. 13, 2000). In

examining the jury instructions before us, we rely upon the extensive case law

interpreting this provision and hold that a violation of R.C. 955.22(C) is a strict

liability offense. Since the trial court relied on this same, well-established

interpretation of R.C. 955.22(C) in defining this crime for the jurors, we cannot find

that the trial court abused its discretion in denying Thompson’s requested

instruction. Tr. 192.

{¶15} The second portion of the jury instructions to which Thompson objects

reads in relevant part as follows:

Before you can find the defendant guilty you must find beyond a reasonable doubt that…Richard Thompson…[1] failed to keep the dog physically confined or restrained upon his premises by a leash, tether, adequate fence, supervision or secure enclosure to prevent escape [2] or keep the dog under reasonable control.

Tr. 198-199. Thompson argues that the wording of this section does not accurately

represent the wording of R.C. 955.22(C), which states:

(C) Except when a dog is lawfully engaged in hunting and accompanied by the owner, keeper, harborer, or handler of the dog, no owner, keeper, or harborer of any dog shall fail at any time to do either of the following:

(1) Keep the dog physically confined or restrained upon the premises of the owner, keeper, or harborer by a leash, tether,

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adequate fence, supervision, or secure enclosure to prevent escape;

(2) Keep the dog under the reasonable control of some person.

(Emphasis added.) R.C. 955.22(C).

{¶16} Thompson notes that the words “of some person” appear in R.C.

955.22(C)(2) but are omitted in the jury instruction, suggesting to the jury that the

dog had to be confined or “under the reasonable control” of Thompson on March

22. Thompson argues that the language of these instructions failed to inform the

jurors that Thompson could have been in compliance with the statute if they found

he “kept the dog under the reasonable control of some person,” such as his daughter

or his wife. R.C. 955.22(C). We do not find this argument to be persuasive because

a trial judge could reasonably find that this additional language was not relevant to

the particular circumstances of this case.

{¶17} At the time of the alleged incident on March 22, Thompson was—by

the admission of Thompson, his daughter, and his wife—the only person at home

with Mack. Tr. 110, 120, 139. If Mack was not confined in accordance with R.C.

955.22(C)(1), the only person available to keep Mack under reasonable control in

accordance with R.C. 955.22(C)(2) was Thompson. Further, no one at trial

contested that a dog was loose on Royal’s property. The question for the jury was

whether the dog that was loose on Royal’s property was Mack. Since the issue was

the identity of the dog, the additional statutory language was irrelevant as the loose

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dog was not under the reasonable control of any person. Since the jury identified

the loose dog as Mack, they logically concluded that Thompson failed to comply

with both provisions of R.C. 955.22(C)(1), (2). For these reasons, we find that the

trial court did not abuse its discretion in issuing these jury instructions. Thus, we

overrule Thompson’s first assignment of error.

Exclusion of Evidence

{¶18} In his second assignment of error, Thompson asserts that the trial court

abused its discretion by excluding an image of Mack that defense counsel sought to

present to the jury. “The admission or exclusion of relevant evidence rests within

the sound discretion of the trial court.” State v. Sage,

,

(1987). “We will not reverse a trial court's ruling on evidentiary issues absent

an abuse of discretion and proof of material prejudice.” State v. McKelton, 2016-

Ohio-5735, --- N.E.3d ---, ¶ 181. “An abuse of discretion is more than an error of

judgment; rather, it implies that the trial court's decision was unreasonable,

arbitrary, or capricious.”

. “When applying the abuse of

discretion standard, a reviewing court is not free to merely substitute its judgment

for that of the trial court.” In re Jane Doe

.

{¶19} In this case, after the State’s case in chief had concluded, defense

counsel moved to present an image of Mack to the jury that was, at the time of the

motion, on Thompson’s phone. Tr. 98. The prosecution objected, arguing that it

was “completely prejudicial to the State to surprise the other side with a telephone

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photograph” as the State’s witnesses had already left and could not examine the

image. Tr. 99. The court denied the motion, saying

I’m not going to allow it because we did not have the photograph prior to the case starting, he [Thompson] obviously had this phone this morning before we got started and it should have been published at that time and been part of the State’s case in chief, and so forth for those reasons I will not allow it.

Tr. 99-100. The record shows that defense counsel wanted to introduce this image

after all of the State’s witnesses who had identified and described Mack had been

excused. These witnesses were, therefore, not available to give testimony as rebuttal

evidence or to identify the dog in the image. The record shows that the trial judge’s

ruling was arguably reasonable as he pointed to competent, credible evidence that

the prosecution would be unfairly prejudiced by the admission of this image. In this

ruling, the trial court reasonably exercised its discretion to preserve the fairness of

this proceeding. Thus, this decision was not an abuse of discretion, and we are not,

therefore, justified in disturbing the trial court’s ruling. Accordingly, the appellant’s

second assignment of error is overruled.

Prosecutorial Misconduct

{¶20} In his third assignment of error, Thompson argues that the State

engaged in prosecutorial misconduct during closing arguments, alleging the

prosecutor impermissibly stated a personal belief about the credibility of a witness.

In reviewing claims of prosecutorial misconduct,

an appellate court should consider [four factors:] (1) the nature

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of the remarks, (2) whether an objection was made by counsel, (3) whether corrective instructions were given by the court, and (4) the strength of the evidence against the defendant.

State v. Johnson, 3d Dist. Allen No. 1-13-45,

, quoting State

v. Braxton,

,

(8th Dist. 1995). “The test for

prosecutorial misconduct is [1] whether remarks are improper and, if so, [2] whether

they prejudicially affected substantial rights of the accused.” State v. Lott,

,

(1990), citing State v. Smith,

, 14-

15,

(1984).

{¶21} “[T]he touchstone of due process analysis in cases of alleged

prosecutorial misconduct is the fairness of the trial, not the culpability of the

prosecutor.” Smith v. Phillips,

,

,

(1982). “A prosecutor is entitled…to ‘wide latitude in summation as to what the

evidence has shown and what reasonable inferences may be drawn therefrom.’”

McKelton, supra, at ¶ 274. State v. Stephens,

,

(1970). However, “[i]t is improper for an attorney to express his personal belief or

opinion as to the credibility of a witness or as to the guilt of the accused.” Smith at

13, citing State v. Thayer,

,

(1931). “A prosecutor may

state his opinion if it is based on the evidence presented at trial.” State v. Klein, 3d

Dist. Union No. 14-12-09,

, quoting State v. Watson,

,

(1997) abrogated on other grounds by State v. McGuire,

,

(1997).

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{¶22} “[N]ot every intemperate remark by counsel can be a basis for

reversal.” State v. Liles, 3d Dist. Allen No. 1-14-61,

, quoting

State v. Porter, 4th Dist. Meigs No. 10CA15, 2012–Ohio–1526, ¶ 20. “Misconduct

of a prosecutor at trial will not be considered grounds for reversal unless the conduct

deprives the defendant of a fair trial.”

. Rather, the

comments in question must prejudice a substantial right of the defendant and “so

[infect] the trial with unfairness as to make the resulting conviction a denial of due

process.” McKelton at ¶ 257, quoting Donnelly v. DeChristoforo,

,

,

(1974).

{¶23} “To establish prejudice, a defendant must show that a reasonable

probability exists that, but for the prosecutor's improper remarks, the result of the

proceeding would have been different.” Liles at ¶ 31, quoting Porter at ¶ 20. “An

improper comment does not affect a substantial right of the accused if it is clear

beyond a reasonable doubt that the jury would have found the defendant guilty even

without the improper comments.” State v. Treesh,

,

(2001). The comments under scrutiny must be examined “in the context

of the entire trial.” State v. Potts, 3d Dist. Hancock No. 5-16-3,

, quoting State v. Siefer, 3d Dist. Hancock No. 5-09-24,

.

{¶24} Here, Thompson alleges that the prosecutor engaged in prosecutorial

misconduct by giving his personal opinion of a witness. The relevant portion of the

prosecution’s closing argument states,

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We also heard testimony from [the defense’s] witnesses that this family has never discussed this since March 22. I don’t know if you caught it but young Ms. Thompson, every time a question was asked, she looked immediately to her dad. Testimony was rehearsed there is no doubt in my mind.

Tr. 177. We begin our analysis by examining this statement under the four factors

to be considered by reviewing appellate courts in prosecutorial misconduct cases.

See

.

{¶25} First, in examining the nature of these remarks, we note that the

challenged comment was stated in closing arguments, which jurors are instructed

not to consider as evidence. Factual assertions and reasonable inferences are

permitted in closing arguments, but the prosecutor, here, explicitly stated that the

inference he was presenting to the jury was a personal belief, saying there “[was]

no doubt in his mind.” Tr. 177. However, in viewing this remark in the context of

the entire trial, we note that this was one sentence in the closing argument. Second,

defense counsel objected to this statement at trial and requested a mistrial, but the

trial court overruled this request. Tr. 179. Third, the trial judge denied defense

counsel’s motion for a mistrial on the grounds that the court was going to issue jury

instructions that would explain that closing arguments are not evidence and would

“overcome” the impact of any improper comment that may have been uttered by the

prosecution. Tr. 179. After closing arguments were concluded, the court issued the

following instructions to the jury.

The evidence does not include the complaint, opening statements

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or closing arguments of counsel. The opening statements and closing arguments of counsel are designed to assist you, they are not evidence.

Tr. 197. Fourth, the evidence against the defendant included testimony from Mr.

Royal, Mrs. Royal, and Mr. Jensen. Each of these witnesses testified that they saw

a dog unconfined on March 22 and were able to explain how they were able to

identify that unconfined dog as Mack. A reasonable jury could find that Thompson

was guilty on the basis of this evidence.

{¶26} Even if the prosecutor’s remark was improper, we do not see how this

comment, in the context of the entire proceeding, had a prejudicial impact on

Thompson’s substantial rights or could, by itself, deprive Thompson of a fair trial.

Finally, Thompson has not demonstrated how the result of the trial would have been

different had the prosecutor not uttered this one sentence. The trial court instructed

the jury to base its determination on the evidence and told the jurors that the closing

arguments were not evidence. We are to presume that the jurors followed these

instructions and that the verdict was not, therefore, based on the content of the

closing arguments. Pang v. Minch,

,

(1990). Since the defense has given us no reason to dispense with this presumption,

we conclude that this verdict would have been the same with or without this

comment in the State’s closing arguments. Thus, Thompson’s third assignment of

error is overruled.

{¶27} Having found no error prejudicial to the appellant in the particulars

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assigned and argued, the judgment of Napoleon Municipal Court is affirmed.

Judgment Affirmed

PRESTON, P.J. and SHAW, J., concur.

/hls

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