[Cite as State v. Jackson, 2012-Ohio-5843.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

STATE OF OHIO, : 

 Plaintiff-Appellee, : CASE NO. CA2012-04-094 

 

 : O P I N I O N

 - vs - 12/10/2012 

 : 

AARON J. JACKSON, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM BUTLER COUNTY AREA I COURT 

Case No. CRB 11-01-648 

Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government 

Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee 

Wayne C. Staton, 110 North Beech Street, Oxford, Ohio 45056, for defendant-appellant 

 RINGLAND, J. 

{¶ 1} Defendant-appellant, Aaron Jackson, appeals his conviction from the Area 

Court I of Butler County. 

{¶ 2} On October 20, 2011, Officer Flanagan, a Butler County dog warden, came into 

contact with a Great Pyrenees on the property of appellant located at 4263 Hamilton Eaton 
Butler CA2012-04-094

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Road.1

 Officer Flanagan found the dog lying alone under a tree on the front side yard of the 

property. There was no visible fence confining the dog. 

{¶ 3} Officer Flanagan knocked on appellant's door and attempted to post a notice. 

While attempting to post the notice, Office Flanagan testified that the dog came charging at 

her, after which she attempted to contain the dog with a snare pole. At that time, appellant 

and his mother appeared for the first time. Officer Flanagan then asked appellant for proof of 

license for the dog, which he then retrieved from inside the residence. Officer Flanagan 

issued appellant a warning for failure to display the license and a ticket for failure to confine 

his dog. 

{¶ 4} A bench trial was conducted on March 15, 2012. A decision was entered on 

March 29, 2012, wherein the trial court found appellant guilty of failure to confine his dog in 

violation of R.C. 955.22(C). Appellant was fined $25 and court costs. 

{¶ 5} Appellant appeals his conviction, raising two assignments of error for our 

review. For ease of discussion, we will address appellant's assignments of error out of order. 

{¶ 6} Assignment of Error No. 2: 

{¶ 7} APPELLANT'S CONVICTION IS NOT SUPPORTED BY SUFFICIENT 

EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 

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

the function of an appellate court is "to examine the evidence admitted at trial to determine 

whether such evidence, if believed, would convince the average mind of the defendant's guilt 

beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the 

syllabus. "The relevant inquiry is whether, after viewing the evidence in a light most favorable 

 

1. Officer Flanagan attempted to testify as to why she came to appellant's property. However, this testimony 

was objected to and sustained, and therefore may not be considered by this court. 
Butler CA2012-04-094

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to the prosecution, any rational trier of fact would have found the essential elements of the 

crime proven beyond a reasonable doubt." Id. 

{¶ 9} "While the test for sufficiency requires a determination of whether the state has 

met its burden of production at trial, a manifest weight challenge concerns the inclination of 

the greater amount of credible evidence, offered in a trial, to support one side of the issue 

rather than the other." State v. Wilson, 12th Dist. No. CA2006-01-007, 2007-Ohio-2298, ¶ 

34. In determining whether the conviction is against the manifest weight of the evidence, an 

appellate court "must weigh the evidence and all reasonable inferences from it, consider the 

credibility of the witnesses and determine whether in resolving conflicts, the jury clearly lost 

its way and created such a manifest miscarriage of justice that the conviction must be 

reversed and a new trial ordered." State v. Coldiron, 12th Dist. Nos. CA2003-09-078, 

CA2003-09-079, 2004-Ohio-5651, ¶ 24; State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-

Ohio-52. "This discretionary power should be exercised only in the exceptional case where 

the evidence weighs heavily against conviction." Id. 

{¶ 10} "Because sufficiency is required to take a case to the jury, a finding that a 

conviction is supported by the weight of the evidence must necessarily include a finding of 

sufficiency." Wilson at ¶ 35. "Thus, a determination that a conviction is supported by the 

weight of the evidence will also be dispositive of the issue of sufficiency." Id. 

{¶ 11} R.C. 955.22(C) addresses the confinement of dogs and provides as follows: 

(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, 

adequate fence, supervision, or secure enclosure to prevent 

escape; 

(2) Keep the dog under the reasonable control of some person. 
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Appellee argues that the dog was neither confined by a leash, tether, adequate fence, 

supervision, or secure enclosure, nor was it under the reasonable control of some person as 

there was no one else in the yard upon Officer Flanagan's arrival. In turn, appellant argues 

that no evidence was introduced to show that the dog left the yard on the date in question or 

any other date, and that the dog was professionally trained to remain on the property to 

protect livestock. 

{¶ 12} We begin by noting that the statute contains multiple ambiguities. When 

interpreting a criminal statute that defines offenses or penalties, the language should be 

strictly construed against the state and liberally construed in favor of the accused. R.C. 

2901.04(A). Accordingly, we construe the "either" language of R.C. 955.22(C) to provide that 

only one or the other of R.C. 955.22(C)(1) and R.C. 955.22(C)(2) must be complied with in 

order to avoid violation of the statute. Next, we note that the phrase, "reasonable control of 

some person," is not well-defined under R.C. 955.22(C)(2), and therefore will be liberally 

construed in favor of the accused to determine whether the dog was within the reasonable 

control of appellant. 

{¶ 13} In the case at bar, the trial court found that when Officer Flanagan arrived at 

appellant's farmhouse, which was "located quite a distance from the road," she discovered 

appellant's dog asleep under a tree in the yard. There was no evidence introduced that the 

dog was venturing away from appellant's property, nor did the trial court make any finding 

that the dog was attacking anyone or was otherwise out of control. On the contrary, 

appellant provided testimony that the dog is professionally trained to stay in one location and 

protect livestock. Appellant further testified that in the eight years he has owned the dog, the 

animal has not left the property. Finally, the evidence indicates that appellant was on the 

property at the time Officer Flanagan arrived. 

{¶ 14} Based on the foregoing, and construing the statute against the state and in 
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favor of the accused, we find that the dog was under the reasonable control of appellant 

based on the lack of evidence indicating appellant was not supervising the dog, the testimony 

that the dog was professionally trained to remain in one location, has never left the property 

and was not seen by the warden outside the property, and the finding of the trial judge which 

indicated that the dog was not out of control, but rather was lying asleep beneath a tree in 

appellant's yard. 

{¶ 15} Accordingly, appellant's second assignment of error is sustained. 

{¶ 16} Assignment of Error No. 1: 

{¶ 17} R.C. 955.22(C) IS VOID-FOR-VAGUENESS, AS THE TERM REASONABLE 

CONTROL IS UNDEFINED. 

{¶ 18} Based upon our holding under appellant's second assignment of error, it is 

unnecessary that we address the question of the constitutionality of R.C. 955.22(C). See 

Hall China Co. v. Public Utilities Comm., 50 Ohio St.2d 206, 210 (1977) (recognizing "that 

constitutional issues should not be decided unless absolutely necessary"); Smith v. Egleston, 

12th Dist. No. CA84-10-068, 1986 WL 6765 (June 16, 1986) (noting "the policy of appellate 

courts to avoid the resolution of constitutional issues whenever possible"). Accordingly 

appellant's first assignment of error is rendered moot. 

{¶ 19} Judgment reversed and appellant discharged. 

HENDRICKSON, P.J., and BRESSLER, J., concur. 

Bressler, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief 

Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.