State v. Robinson

• Decision Date: 23 January 1989
• Docket Number: No. CA88-06-047,CA88-06-047
• Parties: The STATE of Ohio, Appellee, v. ROBINSON, Appellant. *
• Court: Ohio Court of Appeals

Page 128

44 Ohio App.3d 128

541 N.E.2d 1092

The STATE of Ohio, Appellee, v. ROBINSON, Appellant. ^*

No. CA88-06-047.

Court of Appeals of Ohio, Twelfth District, Clermont County.

Jan. 23, 1989.

Syllabus by the Court

1. The void-for-vagueness doctrine requires that penal statutes define a criminal offense with sufficient definiteness, that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.

2. R.C. 955.22, which requires owners of pit bull dogs to keep the animals properly confined or restrained, does not violate due process of law since the statute's definition of "pit bull dog" gives sufficient warning so that individuals may conduct themselves to avoid that which is prohibited by law.

3. The term "commonly known as a pit bull dog," as used in R.C. 955.11, is not so vague as to violate due process.

George E. Pattison, Pros. Atty. and Lawrence R. Fisse, Batavia, for appellee.

Gregory P. Moran, for appellant.

JONES, Presiding Judge.

Defendant-appellant, Dan D. Robinson, appeals his conviction for failing to securely confine or restrain a vicious dog in violation of R.C. 955.22(D)(1).

On September 29, 1987, the Clermont County Chief Dog Warden and two Clermont County Deputy Sheriffs arrived at appellant's Nicholsville, Ohio, residence in response to a telephone call that several pit bull dogs were running loose. The officials discovered nine dogs in an unlocked fenced enclosure. The animals were confiscated and appellant was charged with multiple violations of R.C. 955.22(D)(1) in addition to several other charges.

Appellant filed several pretrial motions, including a motion to dismiss the charges. The trial court conducted an evidentiary hearing after which it denied the motion to dismiss. Ultimately, appellant pleaded no contest to one count of R.C. 955.22(D)(1). In exchange, the state dismissed all remaining charges. Appellant was found guilty, fined and sentenced, and ordered to make restitution to the county for the upkeep of the dogs.

In a single assignment of error, appellant contends that:

"The trial court erred in overruling plaintiff [sic ]-appellant's motion to dismiss."

Appellant was convicted of violating R.C. 955.22(D)(1), which reads as follows:

"No owner, keeper, or harborer of a dangerous or vicious dog shall fail to do either of the following, except when the dog is lawfully engaged in hunting or training for the purpose of hunting, accompanied by the owner, keeper, harborer, or a handler:

"(1) While that dog is on the premises of the owner, keeper, or harborer, securely confine it at all times in a locked pen which has a top, locked fenced yard, or other locked enclosure which has a top, except that a dangerous dog may, in the alternative, be tied with a leash or tether so that the dog is adequately restrained[.]"

Under R.C. 955.11(A)(4)(a)(iii), a "vicious dog" includes any dog which:

"Belongs to a breed that is commonly known as a pit bull dog. The ownership, keeping, or harboring of such a breed of dog shall be prima-facie evidence of the ownership, keeping, or harboring of a vicious dog."

The above definition of "vicious dog" applies to R.C. 955.22. R.C. 955.22(A).

These statutes single out one breed of dog, the pit bull, as inherently dangerous to society. Appellant claims, however, that the term "pit bull dog," as used in the statutes, is vague and overbroad. The issue to be decided in this appeal is whether the statutes infringe upon pit bull dog owners' constitutionally protected right of due process.

The alarming rise in fatalities and severe maulings of people by pit bull dogs has caused several municipalities and states to consider or adopt legislation limiting or prohibiting the sale or possession of pit bulls. See Note, The New Breed of Municipal Dog Control Laws: Are They Constitutional? (1984), 53 U.Cin.L.Rev. 1067. The physical characteristics of pit bulls, the historic use of the dogs as fighters, and the increasing number of unprovoked and unexplained attacks on people has caused the pit bull to be perceived as presenting a threat of danger, warranting a legislative response. Id. at 1075-1076. There can be no doubt that dogs in general are legitimate objects of the state's police power. Almost a century ago, the United States Supreme Court held that dogs are "subject to the police power of the State, and might be destroyed or otherwise dealt with, as in the judgment of the legislature is necessary for the protection of its citizens." Sentell v. New Orleans & Carrollton RR. Co. (1897), 166 U.S. 698, 704, 17 S.Ct. 693, 695, 41 L.Ed. 1169.

Any discussion of the constitutionality of legislation must begin with the premise that all legislative enactments enjoy a strong presumption of constitutional validity. South Euclid v. Jemison (1986), 28 Ohio St.3d 157, 28 OBR 250, 503 N.E.2d 136; Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 28 OBR 346, 503 N.E.2d 717; Hoover v. Bd. of Franklin Cty. Commrs. (1985), 19 Ohio St.3d 1, 19 OBR 1, 482 N.E.2d 575. If possible, legislation must be construed to uphold its constitutionality and all doubts are to be resolved in favor of upholding the statute. Oregon v. Lemons (1984), 17 Ohio App.3d 195, 17 OBR 385, 478 N.E.2d 1007. Although courts may liberally construe a statute to save it from constitutional infirmities, they cannot simply rewrite laws in order to render them constitutional. State v. Wear (1984), 15 Ohio App.3d 77, 15 OBR 106, 472 N.E.2d 778.

Appellant claims that the statutes are vague because they fail to clearly define the prohibited conduct. Generally, the void-for-vagueness doctrine requires that criminal statutes define offenses with sufficient definiteness that ordinary people can understand what conduct is prohibited and in such a manner that encourages neither arbitrary nor discriminatory enforcement. Kolender v. Lawson (1983), 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903; Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362; State v. Earlenbaugh (1985), 18 Ohio St.3d 19, 18 OBR 16, 479 N.E.2d 846; State v. Reeder (1985), 18 Ohio St.3d 25, 18 OBR 21, 479 N.E.2d 280. In order to avoid a finding of vagueness, a statute must give sufficient warning so that individuals may conduct themselves so as to avoid that which is prohibited by law. Rose v. Locke (1975), 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185.

Appellant relies on our decision in State v. Wear, supra, as support for his claim that R.C. 955.11 and 955.22 are vague and violate due process. In Wear, we found R.C. 959.15 (the animal fights statute) unconstitutionally vague and overbroad because it proscribed an individual's presence at a cockfight scene, regardless of whether a fight was in progress, and penalized the constitutional right of association. The statute also failed to require a culpable mental state for those charged with being present at the scene of a cockfight.

In the case at bar, the statutes do not prohibit the ownership or possession of pit bulls. Rather, the laws require pit bull owners to take certain measures to keep the dogs securely confined and restrained. The due process question in the case at bar is the result of the legislature's decision to single out one breed of dog for stringent control. See Note, supra, at 1075. Because it is difficult, if not impossible, to identify a dog's breed with certainty, laws of this nature run the risk of being unconstitutionally vague. Id. The question we must decide is whether the term "commonly known as a pit bull dog," as used in R.C. 955.11, is so vague as to violate due process.

We note that Wear, supra, like most cases raising a vagueness challenge, concerns laws which define conduct, not objects. See, e.g., Papachristou v. City of Jacksonville (1972), 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (vagrancy laws); Earlenbaugh, supra (reckless operation of motor vehicle); Reeder, supra (disorderly conduct); and State v. Garfield (1986), 34 Ohio App.3d 300, 518 N.E.2d 568 (contributing to unruliness of a child). Courts have, however, frequently upheld against vagueness challenges laws which, like pit bull statutes and ordinances, describe objects. See Hygrade Provision Co. v. Sherman (1925), 266 U.S. 497, 45 S.Ct. 141, 69 L.Ed. 402 (kosher food); Stewart v. Trumbull Cty. Bd. of Elections (1973), 34 Ohio St.2d 129, 63 O.O.2d 227, 296 N.E.2d 676 (residence district); Southeastern Fisheries Assn., Inc. v. Dept. of Natural Resources (Fla.1984), 453 So.2d 1351 (fish trap); Potomac Sand & Gravel Co. v. Governor of Maryland (1972), 266 Md. 358, 293 A.2d 241, certiorari denied (1972), 409 U.S. 1040, 93 S.Ct. 525, 34 L.Ed.2d 490 (tidal marshlands); and Bridgeford v. U-Haul Co. (1976), 195 Neb. 308, 238 N.W.2d 443 (truck).

We accordingly find that our earlier decision in Wear, supra, is not controlling in the case at bar. Appellant is correct in his contention that Wear defines the due process standard for vagueness which is equally applicable herein. It is there, however, that the similarities end. In Wear, we were concerned with the unconstitutional limits imposed upon constitutionally protected conduct. In this case, we examine a vagueness challenge to a law defining an object--an object which, as we have seen, is subject to the state's police power. Sentell, supra. For the reasons expressed below, we conclude that the statute at bar, unlike the statute in Wear, satisfies procedural due process.

Neither party has cited any case law addressing the constitutionality of R.C. 955.11 and 955.22 nor has our research produced any relevant citations. We have, however, found some cases which address the same or similar issues.

In Garcia v. Tijeras (1988), 108 N.M. 116, 767 P.2d 355, a New Mexico Court of Appeals upheld a municipal ordinance banning the ownership or possession of a breed of dog "known as American Pit Bull Terrier." As in the case...