[Cite as Warren v. Postlethwait , 2023

- Ohio

- 674.]



## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY

STATE OF OHIO, CITY OF WARREN,

Plaintiff

- Appellee,

- vs
- SUSAN POSTLETHWAIT,

Defendant

- Appellant. CASE NO. 2022

- T

- 0077

Criminal Appeal from the Warren Municipal Court

Trial Court No. 2022 CRB 000725

O P I N I O N

Decided: March 6, 2023 Judgment: Reversed and vacated; remanded

Enzo Cantalamessa , Warren City Law Director, 141 South Street, S.E., Warren, OH 4448 1 (For Plaintiff

- Appellee).

Robert N. Farinacci , 65 North Lake Street, Madison, OH 44057 (For Defendant

Appellant).

MARY JANE TRAPP, J.

{¶1} This case originates from a troubling incident in which two dogs ran amok
in their neighborhood and allegedly mauled a neighbor’s dog to death. Appellant and the
owner of the dogs, Susan Postlethwait (“Ms. Postlethwait”), appeals from the judgment

of the Warren Municipal Court that convicted and sentenced her for violating R.C.
955.22(D)(2).

{¶2} Ms. Postlethwait raises four assignments of error for our review, contending
that the trial court erred by (1) proceeding to sentencing before first finding her guil ty of
the offense charged; (2) sentencing her for violating R.C. 955.22(D)(2) where the2

Case No. 2022

- T

- 0077 complaint was fatally flawed and the offense charged failed to allege the requirement that
the dog be a dangerous dog; (3) sentencing her for violating R.C. 955.22(D)(2 ) where the
state failed to present sufficient evidence that each dog was a dangerous dog by either a
prior determination or deed; and (4) finding that both of her dogs must be destroyed “as
required by law.”

{¶3} After a careful review of the record and perti nent law, we find Ms.
Postlethwait’s second assignment of error to be with merit and dispositive of this appeal.
The criminal complaint filed in this case is fatally flawed, and the trial court’s subject

matter jurisdiction was never properly invoked. Th e essential facts of the offense are
different from the numerical designation of the statute, and, under either, a violation would

be a fourth

- degree misdemeanor for a first

- time offender. Further, the court erroneously
declared Ms. Postlethwait’s dogs as “vicious” and ordered them to be euthanized. A
“vicious dog” is defined as a dog that has severely injured or killed a person, and this case
involves two dogs attacking another dog. See R.C. 955.11(A)(6)(a). Thus, under the

circumstances of this case, the state was required to introduce sufficient evidence of prior
acts of Ms. Postlethwait’s dogs at trial for the court to deem them “dangerous” pursuant
to R.C. 955.11(A)(1)(a) or to submit evidence that the dog warden had already deemed
them to be “dange rous” dogs. Moreover, pursuant to the penalties of R.C. 955.99(G), the
court may order an offender to (1) personally supervise the dangerous dog, (2) cause the
dog to undergo obedience training, or (3) both, and (4) may order the offender to obtain

liabil ity insurance. In the alternative, the court can order the dogs to be humanely
destroyed; however, the order must be stayed pending any appeal.3

Case No. 2022

- T

- 0077 {¶4} Thus, as our review of the complaint reveals, Ms. Postlethwait did not have

sufficient notice of the offense ch arged. A valid complaint must be filed in order to vest a
court with subject

- matter jurisdiction. Since there is no valid complaint and no subject

matter jurisdiction, Ms. Postlethwait’s conviction and sentence are void.

{¶5} The judgment of the Warren Municipal Court is reversed and Ms.

Postlethwait’s conviction and sentence is vacated.
Substantive and Procedural History

{¶6} In April 2022, a complaint was filed in the Warren Municipal Court against

Ms. Postlethwait. The complaint stated under the “essential facts”: “DID NOT KEEP THE

DOG, PHYSICALLY CONFINED OR RESTRAINED UPON PREMISES OF THE

OWNER, KEEPER OR HARBORER BY LEASH, THETH, ADEQUATE FENCE,

SUPERVISION OR SECURE ENCLOSURE TO PREVENT ESCAPE TO WIT: PIT MIX,

BRIN DLE/WHITE in violation of ORD/ORC 955.22(D)2 VICIOUS DOG

–
MISDEMEANOR 1st.” 1

{¶7} The charge stemmed from an incident in which Ms. Postlethwait’s two dogs
dug a hole under her fence and escaped. The dogs were found by a neighbor in the
neighbor’s fenced

- in y ard, where his dog was found dead. There were contradictory
statements made by the neighbor regarding whether he found the two dogs playing tug

of

- war with his dog’s dead body, as he testified, or whether, as he reported to the dog
warden and the police, he found the dog lying dead in the yard.

{¶8} The case was tried to the court. The victim neighbor testified for the state,
and several representatives from the Trumbull County Dog Warden and Kennel as well

1

. Ms. Postlethwait was convicted in a companion case, case no. 2022 CRB 000705, on one count of R.C. 955.22(C)(1) ; however, that case was not appealed.4

Case No. 2022

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- 0077 as Ms. Postlethwait testified for the defense. Bec ause the complaint is fatally defective,
we need not delve into the evidence presented. Suffice it to say, there seemed to be
much confusion over what was being prosecuted. Further, the trial court never made a
finding that Ms. Postlethwait’s dogs were d eemed dangerous by the dog warden (as the
representatives from the dog warden testified) prior to trial, or, alternatively, that the state
introduced evidence of prior acts that would deem the dogs dangerous.

{¶9} At the conclusion of trial, the trial court d id not find Ms. Postlethwait guilty
before proceeding to sentencing. The court proceeded directly to sentencing and
sentenced her to a fine of $1,000 with $500 suspended, 180

- days in jail, with 180 days
suspended, and one

- year of probation. The court dee med both dogs to be vicious “as
defined by the Ohio Revised Code” and ordered them to be euthanized “as required by
law.” After trial, the court issued a judgment entry setting forth a finding of guilt and the

sentence.
{¶10} The sentencing entry similarly stat es that Ms. Postlethwait was convicted of
“R.C. 955.22(D)(2) Vicious Dog M1,” and that “AS REQUIRED BY LAW,

APPREHENDED DOGS ARE DETERMINED TO BE VICIOUS AS DEFINED BY THE

OHIO REVISED CODE AND ARE HEREBY ORDERED EUTHANIZED AS REQUIRED

BY LAW.”

{¶11} Ms. Postl ethwait raises four assignments of error:

{¶12} “[1.] The Trial Court committed prejudicial error by proceeding to
sentencing before first finding the Appellant guilty of the offense charged.

{¶13} “[2.] The Trial Court erred by sentencing the Defendant for violatin g R.C.
955.22(D)(2) where the Complaint was fatally flawed by numerous inaccuracies and the5

Case No. 2022

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- 0077 offense charged failed to allege the precedent requirement that the dog be a dangerous
dog.

{¶14} “[3.] The Trial Court erred to the prejudice of Appellant by sentencing
Appellant for violating R.C. 955.22(D)(2) where the State failed to present evidence
sufficient to prove that one or both of the dogs, subject of this offense, a dangerous dog
by either prior determination or deed.

{¶15} “[4.] The Court erred to the prejudice of Appellant by finding that both of
Appellant’s dogs must be destroyed ‘as required by law.’”

{¶16} We address Ms. Postlethwait’s second assignment of error first because it
is dispositive of the appeal, rendering her remaining issues moot. Further, we would b e
remiss not to note that we are most sympathetic to both Ms. Postlethwait and the victim
in this case. Our companion animals are most dear, and, for all involved in this case, this
is a troubling incident filled with sorrowful loss and a reminder of the requirement of proper
supervision.
Statutory Framework

{¶17} In State v. Jones , 159 Ohio St.3d 228, 2019

- Ohio

- 5159, 150 N.E.3d 58, the
Supreme Court of Ohio explained the statutory framework governing the instant matter:

{¶18} “Notwithstanding the strong emotional b onds that often form between
people and their dogs, dogs are considered personal property in Ohio and, as such, are
subject to regulation pursuant to the state’s police power. [ State v. Cowan
, 103 Ohio

St.3d 144, 2004

- Ohio

- 4777, 814 N.E.2d 846,] ¶ 9. R.C . Chapter 955, aptly titled ‘Dogs,’
contains numerous laws on the ownership and treatment of dogs, which range from the
details of licensing, selling, and impounding them to broader physical

- control6

Case No. 2022

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- 0077 requirements. Additionally, the chapter defines specific legal terms, such as ‘nuisance
dog,’ ‘dangerous dog,’ and ‘vicious dog,’ see R.C. 955.11, and outlines penalties for
noncompliance with its laws, see R.C. 955.99.

{¶19} “One of the sections at issue here, R.C. 955.22, dictates how an owner,
keeper, or harborer of a dog must confine that dog if it is a dangerous dog, see division
(D), and requires the owner, keeper, or harborer of a dangerous dog to obtain liability
insurance if ordered by a court, see division (E). Additionally, R.C. 955.99(G) enhances
the pena lty for failing to confine or control one’s dog if it is a dangerous dog. See R.C.
955.22(C) (establishing general requirements for confining and controlling ‘any dog,’
irrespective of whether that dog falls under one of the specific designations set fort h in
R.C. 955.11). R.C. 955.22 uses the same definition of ‘dangerous dog’ as that contained

in 955.11(A)(1)(a), which defines a ‘dangerous dog’ as one that, without provocation, has

done any of the following: (1) caused a non
- serious injury to a person, (2) killed another
dog, or (3) been the subject of a third or subsequent violation of R.C. 955.22(C).

{¶20} “ A separate section of R.C. Chapter 955, R.C. 955.222, provides a means
by which a dog warden or other authorized official may designate a dog as ‘danger ous’
when there is reasonable cause to believe that the dog meets the R.C. 955.11(A)(1)(a)

definition. See R.C. 955.222(B) and (F). If a dog warden chooses to exercise his or her
authority to designate a dog as dangerous, then the warden must notify the dog’s owner,
keeper, or harborer of both the designation and the option to request a judicial hearing to
contest it. R.C. 955.222(A) and (B). At the hearing, the warden has the burden of proving
the designation by clear and convincing evidence. R.C. 955 .222(C).” (Footnotes
omitted.) Id. at ¶ 10

- 12.7

Case No. 2022

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- 0077 {¶21} The Supreme Court went on to hold in Jones that a prior dangerous

- dog
designation is not required before a person may be prosecuted for failing to control or
confine a dangerous dog. Id. at ¶ 25. If there is no prior designation, then the state is
required to present sufficient evidence of the dog’s prior acts that would render him or her
dangerous pursuant to R.C. 955.11(A)(1)(a). See id.
Complaint, Conviction, and Sentence

{¶22} In her second assignment of e rror, Ms. Postlethwait contends the trial court
erred by sentencing her for violating R.C. 955.22(D)(2) because the complaint was fatally
flawed by numerous inaccuracies and, further, by sentencing her for a first

- degree

misdemeanor when a first offense un der R.C. 955.22(D)(2) is a fourth

- degree
misdemeanor and any subsequent offense is a third

- degree misdemeanor. We interpret
this argument to mean that the trial court’s subject

- matter jurisdiction was not properly
invoked due to an invalid complaint pursu ant to Crim.R. 3.

{¶23} As an initial matter, a claim of lack of subject matter jurisdiction may be
raised at any stage of the proceedings. In re Byard , 74 Ohio St.3d 294, 296, 658 N.E.2d
735 (1996). We review a subjection matter jurisdiction claim de novo. State v. Jones
, 11th Dist. Portage Nos. 2010

- P

- 0051 and 2010

- P

- 0055, 2011

- Ohio

- 5109, ¶ 12.

{¶24} The filing of a valid complaint is a necessary prerequisite to a trial court’s
acquisition of jurisdiction. State v. Schuler , 2019

- Ohio

- 1585, 135 N.E.3d 325, ¶ 20 (12th
Dist.).

{¶25} Crim.R. 3 sets forth the requirements for a criminal complaint and provides:

{¶26} “The complaint is a written statement of the essential facts constituting the

offense charged. It shall also state the numerical designation of the applicable statute or8

Case No. 2022

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- 0077 ordinance. It shall be made upon oath before any person authorized by law to administer

oaths.” Crim.R. 3(A).

{¶27} There are three requirements for a complaint to be valid under Crim.R. 3:
“‘First, the complaint must set forth a written statement of the facts that constitute the
essential elements of the offense charged. The essen tial elements of a given offense are
those facts which must be proven to obtain a conviction of the accused. The complainant
does not need to have personal knowledge of the facts stated in the complaint, but rather
must only have reasonable grounds to bel ieve that the defendant committed the crime
charged. The second requirement is that the complaint must state the numerical
designation of the Revised Code section or municipal ordinance which the defendant
allegedly violated. Finally, the third requireme nt is that the complaint must be made under
oath before any person authorized by law to administer oaths.’” Jones at ¶ 16, quoting

State v. Patterson
, 11th Dist. Trumbull No. 96

- T

- 5439, 1998 WL 310737, *7 (May 22,
1998).

{¶28} As our review of the complaint rev ealed, Ms. Postlethwait is correct in her
assertion that the complaint is fatally flawed in several respects.

{¶29} Firstly, the complaint purported to charge her with one count of violating
R.C. 955.22(D)(2), which provides:

{¶30} “ Except when a dangerous dog is lawfully engaged in hunting or training for

the purpose of hunting and is accompanied by the owner, keeper, harborer, or handler of

the dog, no owner, keeper, or harborer of a dangerous dog shall fail to do either of the
following:

{¶31} “ * * *9

Case No. 2022

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- 0077 {¶32} “(2) While that dog is off the premises of the owner, keeper, or harborer,
keep that dog on a chain

- link leash or tether that is not more than six feet in length and
additionally do at least one of the following:

{¶33} “(a) Keep that dog in a locked pen that has a top, locked f enced yard, or

other locked enclosure that has a top;
{¶34} “(b) Have the leash or tether controlled by a person who is of suitable age

and discretion or securely attach, tie, or affix the leash or tether to the ground or a
stationary object or fixture so that t he dog is adequately restrained and station such a

person in close enough proximity to that dog so as to prevent it from causing injury to any

person;
{¶35} “(c) Muzzle that dog.”

{¶36} Secondly, the complaint listed the essential facts, which are not the

elements of R.C. 955.22(D)(2), but rather, the elements of R.C. 955.22(C)(1), which
provides:

{¶37} “(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 fa il at any time to do either of the following:

{¶38} “(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[.]”

{¶39} Thirdly, the co mplaint listed a violation of R.C. 955.22(D)(1) as a first

- degree
misdemeanor. Whether the state was attempting to charge Ms. Postlethwait under R.C.
955.22(C)(1) or R.C. 955.22(D)(1), a violation of either is a fourth

- degree misdemeanor10

Case No. 2022

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- 0077 for a first offen se and a third

- degree misdemeanor for each subsequent offense. R.C.
955.99, “Penalties,” provides in relevant part:

{¶40} “(G) Whoever commits a violation of division (C) of section 955.22 of the

Revised Code that involves a dangerous dog or a violation of divi sion (D) of that section

is guilty of a misdemeanor of the fourth degree on a first offense and of a misdemeanor

of the third degree on each subsequent offense. Additionally, the court may order the

offender to personally supervise the dangerous dog that the offender owns, keeps, or
harbors, to cause that dog to complete dog obedience training, or to do both, and the

court may order the offender to obtain liability insurance pursuant to division (E) of section

955.22 of the Revised Code. The court, in the alternative, may order the dangerous dog

to be humanely destroyed by a licensed veterinarian, the county dog warden, or the

county humane society at the owner’s expense. With respect to a violation of division (C)

of section 955.22 of the Revised Code th at involves a dangerous dog, until the court

makes a final determination and during the pendency of any appeal of a violation of that

division and at the discretion of the dog warden, the dog shall be confined or restrained

in accordance with division (D) of section 955.22 of the Revised Code or at the county
dog pound at the owner’s expense.” (Emphasis added.)

{¶41} A fourth

- degree misdemeanor carries a jail term of not more than 30 days,

see R.C. 2929.24(A)(4), and a fine of no more than $250, see R.C. 2929.28 (A)(2)(a)(iv).

{¶42} Fourthly, the complaint erroneously alleged this was a “vicious dog”

offense. Ms. Postlethwait was purportedly charged with failing to restrain her dogs, which
allegedly killed her neighbor’s dog.11

Case No. 2022

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- 0077 {¶43} A “vicious dog” means “a dog that, witho ut provocation * * * has killed or
caused serious injury to any person .” (Emphasis added.) R.C. 955.11(A)(6)(a).

{¶44} Whereas a “dangerous dog” “ means “a dog that, without provocation, * * *

has done any of the following:

{¶45} “(i) Caused injury, other than kill ing or serious injury, to any person;
{¶46} “(ii) Killed another dog;

{¶47} “(iii) Been the subject of a third or subsequent violation of division (C) of

section 955.22 of the Revised Code.” R.C. 955.11(A)(1).

{¶48} It is clear that there are no injuries, severe or otherwise, and/or a killing of
any person under the circumstances of this case.

{¶49} Therefore, if the warden did not already deem the dogs “dangerous”

– with
the requisite appeal period for Ms. Postlethwait

- then the state was required to introduce

sufficient evidence at trial of prior acts of Ms. Postlethwait’s dogs in order for the trial court

to deem them dangerous pursuant to R.C. 955.11(A)(1)(a). See Jones
, 159 Ohio St.3d

228, 2019

- Ohio

- 5159, 150 N.E.3d 58, ¶ 25.

{¶50} Fifthly, the trial court ordered the dogs to be euthanized in ten days’ time
from the date of the sentencing entry. R.C. 955.99(G) provides that a court may order
the offender to (1) personally supervise the dangerous dog, (2) cause the dog to undergo
obedience training, or (3) both, and (4) the court may order the offender to obtain liability

insurance. In th e alternative, the court may order the “dangerous dog to be humanely
destroyed”; however, until the court makes a final determination, and during the pendency
of any appeal, the dog shall be confined or restrained. See R.C. 955.99(G).12

Case No. 2022

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- 0077 {¶51} We note that Ms. Postlethwait filed a motion for a stay with the municipal
court while this appeal is pending, which was granted.

{¶52} As our review of the complaint reveals, Ms. Postlethwait did not have
sufficient notice of the offense charged. A valid com plaint must be filed in order to vest a
court with subject

- matter jurisdiction. State v. Sallee , 6th Dist. Erie No. E

- 11

- 042, 2012

-
Ohio

- 3617, ¶ 11

- 13 (Without the division, subsection, or a description of the prohibited
conduct, appellant was never proper ly notified of the charges against her, and the
complaint was a nullity). See also State v. Schuler , 2019

- Ohio

- 1585, 135 N.E.3d 325, ¶
24 (12th Dist.) (Trial court lacked subject

- matter jurisdiction to convict appellant of three
counts of animal cruelty b ecause the complaints did not set forth the underlying facts of
the offense, did not provide any statutory language, and failed to specify which subsection
of the statute appellant was charged with violating); State v. Sampson , 2d Dist.
Montgomery No. 2221 4, 2008

- Ohio

- 775, ¶ 29 (Appellant’s conviction for disorderly
conduct is void and must be reversed because the complaint upon which the conviction
is based omits and fails to charge an essential element of the crime).

{¶53} Ms. Postlethwait’s second assignment of error is sustained, rendering her
remaining assignments of error moot. See App.R. 12(A)(1)(c).

{¶54} The judgment of the Warren Municipal Court is reversed, and Ms.

Postlethwait’s conviction and sentence are vacated. This matter is remanded for further

pro ceedings consistent with this opinion.

JOHN J. EKLUND, P.J.
, MATT LYNCH, J.
,

concur.