State v. Ruisi

• Decision Date: 11 July 2000
• Docket Number: No. A-99-382.,A-99-382.
• Citation: 9 Neb. App. 435,616 N.W.2d 19
• Parties: STATE of Nebraska, appellee and cross-appellant, v. Joseph RUISI, appellant and cross-appellee.
• Court: Nebraska Court of Appeals

616 N.W.2d 19

9 Neb. App. 435

STATE of Nebraska, appellee and cross-appellant, v. Joseph RUISI, appellant and cross-appellee.

No. A-99-382.

Court of Appeals of Nebraska.

July 11, 2000.

James C. Vitek and Joseph C. Vitek, Omaha, for appellant.

Paul D. Kratz, Omaha City Attorney, Martin J. Conboy III, Omaha City Prosecutor, and J. Michael Tesar, Omaha, for appellee.

SIEVERS and INBODY, Judges, and BUCKLEY, District Judge, Retired.

SIEVERS, Judge.

One of Joseph Ruisi's three dogs attacked and severely injured Paula Cork, a visitor in Ruisi's home. Ruisi was convicted in Douglas County Court on one count of harboring a dangerous and ferocious dog and on three counts of no proof of vaccination. On appeal to the district court for Douglas County, his convictions were affirmed, but his sentences were reduced. Ruisi's dog, which had been impounded since the attack, was ordered destroyed. Ruisi appeals his convictions, his sentences, the impoundment of his dog, and the destruction order. The State cross-appeals, arguing that the district court should not have reduced Ruisi's sentences.

FACTUAL BACKGROUND

Ruisi met Cork at an Omaha bar on the night of May 14, 1998. The two talked, and during their conversation, he indicated to her that he had three dogs. His dogs include a male "Polish Ovchar," named Boksi, a female Hungarian Kuvasz, and a female Great Pyrenees. Cork told Ruisi that she was afraid of dogs. Ruisi invited Cork to his house, and they drove there together in his car. After they entered the house, Cork saw the three dogs and told Ruisi that she was afraid of them. He told her to "[s]tick by me and you'll be okay." Ruisi testified that he told her that the dogs were guard dogs and to "please leave them alone." The dogs sniffed them, but did not snap or growl. After a short while, the dogs left them alone. Although Ruisi had a basement in which he could put the dogs, and had done so before, he left them out this night.

Ruisi showed Cork around his house, and they ended up talking in a spare bedroom. Ruisi left the room to get coffee, while Cork stayed behind, sitting near the edge of the bed. One of Ruisi's dogs, Boksi, was at the foot of the bed. Cork testified that she was "just sitting there" and did not startle the dog or do anything to provoke it, but did start to reach her hand out to pet it. At that point, the dog attacked Cork. It went after her forearm first, pulled her to the floor, then bit her face and the back of her neck.

Ruisi heard Cork's screams and returned to the room. He got the dog out of the room and put him in the garage. He also got Cork something to try to stop the bleeding, then called the 911 emergency dispatch service. An emergency squad arrived shortly thereafter and took Cork to the hospital. Cork's injuries included scratches, a sinus injury, lacerations to her face and neck, and a broken nose. These injuries required over 200 stitches. Cork testified that she will have to undergo 5 years of reconstructive surgery. Cork also received mental health therapy for posttraumatic stress disorder. Since the attack, she has had nightmares and an extreme fear of dogs.

At trial, Ernest Stary, an animal control officer, testified that he arrived at Ruisi's home at approximately 2:30 a.m. on May 15, 1998. Stary stated that there were three dogs at the Ruisi residence. Ruisi told him that Boksi had bitten Cork that night. Stary asked Ruisi to provide him with proof of vaccination for the three dogs, which Ruisi did not do. Ruisi told Stary that he believed the dogs might have been vaccinated, but could not show proof of it. At trial, Ruisi admitted that Boksi was not current for his rabies vaccination on the night of May 14. He stated that he did not have the other two dogs' proof of vaccinations that night because he was staying in a temporary residence and did not have all of his paperwork at that residence. Ruisi did not produce copies of the proof of vaccinations at trial. Stary took Boksi to the humane society on May 15, where he has been impounded since.

Ruisi was cited for three counts of no proof of vaccination pursuant to Omaha Mun.Code, ch. 6, art. V, § 6-201 (1996). Ruisi was also cited for harboring a dangerous and ferocious dog, pursuant to Omaha Mun.Code, ch. 6, art. III, § 6-105 (1996), because his dog Boksi had attacked and bitten Cork.

Ruisi testified that he did not have any knowledge that any of his dogs had ever bitten or tried to bite anyone and had never attacked another animal, and that he had no reason to think that any of them would attack Cork. Ruisi does not dispute that Boksi attacked Cork and agrees that the dog inflicted the wounds that she described.

The county court found Ruisi guilty on all charges and sentenced him to 6 months in jail on the harboring a dangerous animal charge and 5 months in jail on each of the three charges for no proof of vaccination; the latter sentences were ordered to run concurrent to each other, but consecutive with the harboring sentence. The court also ordered the destruction of Boksi. Ruisi appealed the convictions, sentences, and destruction order to the district court, which affirmed the convictions and findings of the county court, but the district court reduced Ruisi's sentences to 6 months of probation followed by 180 days in jail, unless waived by the court, for the harboring charge and each of the three counts of no proof of vaccination, all to run concurrent with each other. Ruisi timely appealed.

ASSIGNMENTS OF ERROR

Ruisi assigns six errors: The district court erred in (1) determining that it was not a violation of due process for the Omaha city ordinance to impose strict liability by eliminating a mens rea requirement that a dog owner know that a dog is a dangerous dog as defined in the ordinance; (2) determining that the evidence was sufficient for the county court to convict Ruisi of the offenses of harboring a dangerous dog and no proof of vaccination; (3) sentencing Ruisi to 6 months of probation followed by 6 months of imprisonment, because this exceeds the statutory limits for a violation of a misdemeanor offense; (4) failing to find that the county court order of impoundment was in violation of his due process rights under the 14th Amendment; and (5) determining that his dog should be destroyed and that he pay the expenses necessitated by the impoundment and destruction of the dog. Ruisi also asserts that his sentences are excessive.

The State has cross-appealed, asserting that the district court erred in modifying the sentences imposed by the county court.

ANALYSIS

Harboring Dangerous Animal as Strict Liability Crime.

Ruisi first asserts that the strict liability nature of the harboring a dangerous dog ordinance is a violation of due process, because there is no requirement that a dog owner know that a dog is a dangerous dog as defined in the ordinance.

We first address whether we have jurisdiction over Ruisi's claims that the ordinance in question is unconstitutional. Neb.Rev.Stat. § 24-1106 (Reissue 1995) provides that an appeal shall be taken to "the Court of Appeals except in capital cases, cases in which life imprisonment has been imposed, and cases involving the constitutionality of a statute." Section 24-1106 does not except from the jurisdiction of this court consideration of the constitutionality of an ordinance. See, also, Neb. Ct. R. of Prac. 9E (rev.1996). This court may determine the constitutionality of a municipal ordinance. See State v. Champoux, 5 Neb.App. 68, 555 N.W.2d 69 (1996).

Section 6-105 of the Omaha Municipal Code provides:

No person shall own, keep or harbor, or allow to be in or upon any premises occupied by him, or under his charge or control, any dangerous dog or other dangerous animal without said dog or other animal being confined so as to protect the public from injury.

A dangerous dog or other dangerous animal is defined as one who meets one or more of the following conditions:

(a) Any dog or other animal which attacks a human being or other domestic animal one or more times, without provocation;

(b) Any dog or other animal with a history, tendency or disposition to attack, to cause injury or to otherwise endanger the safety of human beings or other domestic animals;

(c) Any dog or other animal that snaps, bites or manifests a disposition to snap or bite.

If upon the conviction of an offense under this section it shall appear to the court that said dog or other animal is still living, the court may, in addition to any other fine or judgment, order the poundmaster to forthwith put the dog or other animal to death by removing the same to the animal shelter for such purpose. Any person found guilty of violating this section shall pay all expenses, including shelter, food, veterinary expenses for identification or certification of the dog or other animal, boarding and veterinary expenses necessitated by the seizure of any dog or other animal for the protection of the public and such other expenses as may be required for the destruction of any such dog or other animal.

In State v. Pettit, 233 Neb. 436, 447, 445 N.W.2d 890, 897 (1989),overruled on other grounds, State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994), the Nebraska Supreme Court stated: "`Strict liability offenses are the exception rather than the rule and will only be found where there is a clear legislative intent not to require any degree of mens rea.'" Accord State v. Ring, 233 Neb. 720, 447 N.W.2d 908 (1989). However, the court went on to state that the violation of some criminal statutes may occur without a defendant's criminal intent, if such law

"omits mention of intent and where it seems to involve what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable and adherence thereto properly expected of a person, where the penalty is relatively small, where the conviction does not gravely besmirch, where the statutory crime is not taken over

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