COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71513 CITY OF CLEVELAND : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION TOM PUVEL : : Defendant-appellant : July 31, 1997 : : DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CRB-16432 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBB-JONES, ESQ. KAREN M. MORELL,ESQ. Cuyahoga County Prosecutor The Bevelin House ELLAINNA J. LEWIS-BEVEL, ESQ. 2913 Clinton Avenue Assistant County Prosecutor Cleveland, OH 44113 Justice Center-8th Floor 1200 Ontario Street Cleveland, OH 44113 2 PATTON, J. This appeal arises from the Cleveland Municipal Court finding defendant-appellant Tom Puvel guilty of violating Cleveland Codified Ordinance No. 604.03(a), Control of Vicious and Dangerous Dogs. Defendant appeals claiming (1)the trial court erred finding him guilty because he fits in one of the exemptions to the municipal code and (2)the trial court erred in ordering him to pay restitution for veterinary bills. On or about May 28 or 29, 1996, the City of Cleveland Kennels received a report that defendant's dog, Max, a great dane, had bitten a child. The dog warden investigated the incident and determined that the dog had jumped defendant's four-foot fence and entered the child's back yard. The Dog Warden then sent defendant a notice telling him that his dog had been deemed vicious in accordance with M.C. 604.3(a) and that he had to comply with the mandates of this code section and control his dog. Approximately two weeks later the City of Cleveland Kennels received another report from one of defendant's neighbor indicating that defendant's dog had been unsupervised and attacked her dog. On June 21, 1996, the City of Cleveland filed a complaint against defendant alleging that a violation of M.C. 604.3(a) had occurred. On September 10, 1996, defendant appeared in court and entered a plea of no contest, without a consent to a finding of guilt. Defendant was subsequently found guilty and fined $400.00 plus court costs and ordered to pay restitution in the form of veterinary bills for the injured dog. 3 Defendant now appeals and in his first assignment of error states as follows: THE TRIAL COURT ERRED IN FINDING THE DEFENDANT GUILTY OF 604.03, BECAUSE CLEVELAND MUNICIPAL CODE SECTION 604.02 PROVIDES A RELEVANT EXEMPTION WHICH EXONERATES THE DEFENDANT ON THE CHARGE OF VICIOUS DOG. Defendant claims he is not guilty of the offense charged because the evidence presented by the prosecution did not prove all the elements of the offense charged and he fits in one of the exemptions provided in M.C. 604.02. The city maintains defendant pleaded no contest to the charge that his dog was vicious in violation of M.C. 604.03(a), therefore, the only determination left to be made was whether defendant controlled his dog within the guidelines of this code section. The city argues the trial court correctly found defendant guilty of not controlling his dog after hearing the prosecution present its evidence and defendant and his attorney present a defense. Defendant now complains that his dog was never deemed dangerous as a result of the first incident when his dog allegedly bit a child. This argument is irrelevant. The complaint at issue here was not brought against defendant for the first incident but, rather, for the second incident when defendant's dog attacked another dog. The city only had to prosecute based on the second incident. However, defendant pleaded no contest to the charge of failure to control his dog based on the second incident. Therefore, the question is whether the city met its burden of proof regarding defendant's failure to control his dog. 4 A no contest plea is not a complete admission of guilt, but requires the court to find the accused guilty of the crime charged. By entering a plea of no contest, a defendant admits the facts alleged in the indictment. Crim.R. 11(B)(2). A plea of no contest followed by a finding of guilt is not equivalent to a trial to the court, because the prosecution does not have the obligation to present evidence proving the defendant guilty beyond a reasonable doubt. State v. Thorpe (1983), 9 Ohio App.3d 1, 2. The state is not required to prove each element of the crime charged where the indictment contains sufficient factual allegations to support a conviction. State v. Gilham (1988), 48 Ohio App.3d 293, 296. In the present case, the facts contained in the indictment against defendant are consistent with the crime charged. By pleading no contest defendant admitted those facts as true. Defendant was charged with a violation of M.C. 604.03(a) which governs the control of vicious dogs and states: No owner, keeper or harborer of a dangerous or vicious dog shall fail to *** (a) While the dog is on the premises of the owner, keeper or harborer, maintain it at all times in a locked pen 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. The facts contained in the indictment against defendant are consistent with the crime charged. By pleading no contest defendant admitted those facts as true. In addition, the city presented the testimony of the dog warden, a neighbor, and letters and pictures detailing how the incident occurred. Therefore, the 5 city sufficiently met its burden of proving the elements of the crime charged. Defendant also argues he is not guilty of the crime charged because he fits into one of the exemptions provided by M.C. 604(b)(2) and (b)(3). M.C. 604.02(b)(2) states a dog may not be declared vicious if the injury was sustained by a domestic animal which was trespassing on the property of the dog's owner/keeper. M.C. 604.02(b)(3) states a dog is not dangerous if it was naturally defending its owner from a threat from a trespassing dog. Defendant did not argue, at trial, that his dog was defending him. Thus, he cannot raise this argument for the first time on appeal. Moreover, because defendant pleaded no contest he waived his right to present additional affirmative allegations to prove that he was not guilty. State v. Gilbo (1994), 96 Ohio App.3d 332, 337. Thus, defendant's trespass was not properly before the court. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error states as follows: THE TRIAL COURT ERRED IN ORDERING RESTITUTION FOR VETERINARY BILLS BECAUSE CLEVELAND MUNICIPAL CODE SECTION 604.02 (c) PROVIDES A RELEVANT EXEMPTION WHICH ELIMINATES CIVIL LIABILITY UNDER THE FACTS OF THE CASE. Defendant argues he should not have to pay restitution because the injured dog was trespassing on his property and M.C. 604.02(c) recognizes an exception for civil liability where the injury occurred as a result of a trespass. The city maintains the trial court was well within its 6 discretion when it ordered defendant to pay restitution, i.e., veterinarian bills, to the owner of the injured dog based on M.C. 604.99. M.C. 604.02(c) states as follows, in pertinent part: (c) The owner, keeper or harborer of a vicious or dangerous dog is not liable in damages for any injury, death or loss to person or property caused by such dog, if such injury, death or loss was caused to the person or property of an individual who, at the time, was committing or attempting to commit a trespass ***. (Emphasis added). Defendant's reliance on M.C. 604.02(c) is misplaced because this section provides for immunity from liability for the attacking owner's dog only if the owner of the injured dog was trespassing. This section does not provide immunity if only the dog was trespassing, the owner of the dog has to be trespassing. Accordingly, defendant's second assignment of error is overruled. Judgment affirmed. 7 It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cleveland Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, P.J. NAHRA, J., CONCURS. JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decisio n. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's .