COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72109 CITY OF CLEVELAND : : Plaintiff-Appellee : : JOURNAL ENTRY v. : : AND PATRICIA COUGHLIN : : OPINION Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 11, 1997 CHARACTER OF PROCEEDING: Criminal appeal from the Cleveland Municipal Court, No. 96 CRB 027938 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: ____________________ APPEARANCES: For Plaintiff-Appellee: GEORGE A. PACE, JR. Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PATRICK FARRELL HILDEBRAND, WILLIAMS & FARRELL 21430 Lorain Road Fairview Park, Ohio 44126 -2- ROCCO, J.: Patricia Coughlin1 appeals from a judgment of the Cleveland Municipal Court finding her guilty of failure to control a vicious and/or dangerous dog. Since the conviction was supported by sufficient evidence and was not against the manifest weight of the evidence, we affirm. The evidence revealed that Patricia Coughlin and her husband kept a dog named Taxi, which was registered in the husband's name. On August 14, 1996, Taxi attacked and bit seventy-eighty year old Madaline Kirsch, while Kirsch stood on the tree lawn of her own property. Kirsch received medical treatment for an open wound of her left calf. The evidence further revealed that, during the year preceding that incident, Taxi (1) in a neighbor's driveway, attempted to bite Kirsch's grandson, and bit Kirsch's dog, resulting in lacerations to Kirsch's dog which required suturing; (2) threatened Kirsch's daughter and son-in-law, on Kirsch's property, by baring its teeth and growling; and (3) tore a hole in a neighbor's window screen. At the time these incidents occurred, Kirsch notified Coughlin of Taxi's attack on her dog, and Kirsch's son-in-law told Coughlin's husband that Taxi was vicious and should be confined. On January 15, 1997, the trial court found Coughlin guilty of failing to control a vicious and/or dangerous dog, in violation of 1Appellant's name was spelled Coglin on the citation; however, at trial appellant testified her name was spelled Coughlin. -3- Cleveland Cod. Ord. S 604.03(a). On February 10, 1997, the court sentenced Coughlin to serve one hundred eighty days in jail and fined her $1,000. However, the court suspended the jail sentence and reduced the fine by $900. Coughlin now appeals raising six assignments of error for our review. Five of her six assignments of error, which are set forth in the appendix, assert that the verdict was neither supported by sufficient evidence nor in accord with the manifest weight of the evidence. In reviewing the record for sufficiency, we look to the standard articulated in State v. Taylor (1997), 78 Ohio St.3d 15, 18: * * *[T]he relevant inquiry is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt * * *. Cleveland Cod. Ord. S 604.03(a) contains the following essential elements: No owner, keeper or harborer of a dangerous or vicious dog shall fail to do * * * the following * * *: (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, locked fence yard which fence is at least six feet high, or other locked enclosure which has a top, except that a dangerous dog may, in the alternative, be tied with a leash or tether with a minimum tensile strength of three hundred (300) pounds so that the dog is adequately restrained. (Emphasis added). -4- Pursuant to Cleveland Cod. Ord. S 604.01(b), a dangerous dog means [a] dog that, without provocation, has chased or approached in either a menacing fashion or an apparent attitude of attack, or has attempted to bite or otherwise endanger any person, while that dog is off the premises of its owner, keeper, harborer, or some other responsible person, and not physically restrained or confined in a locked pen * * *. Pursuant to Cleveland Cod. Ord. S 604.01(k), a vicious dog means [a] dog that, without provocation, meets any of the following: (1) Has killed or caused serious injury to any person; (2) Has caused injury, other than killing or serious injury, to any person, or has killed or caused serious injury to any domestic animal; * * *. Serious injury means [a]ny physical injury that results in broker bones or lacerations requiring multiple sutures or cosmetic surgery. Cleveland Cod. Ord. S 604.01(j). Without provocation means [t]hat a dog was not teased, tormented or abused by a person, or that the dog was not coming to the aid or the defense of a person who was not engaged in illegal or criminal activity and who was not using the dog as a means of carrying out such activity. Cleveland Cod. Ord. S 604.01(l). Furthermore, [n]o dog may be declared vicious if * * * [a]n injury or damage was sustained by a domestic animal which at the time such injury or damage was sustained was teasing, tormenting, -5- abusing or assaulting the dog * * *. Cleveland Cod. Ord. S 604.02(b)(2). In the case before us, the city adduced evidence that on August 14, 1996, Coughlin, the keeper and/or harborer of a dog named Taxi, failed to keep Taxi adequately restrained, either in a locked pen or by a leash or tether of required strength. The city also adduced evidence that Taxi, without provocation, caused injury to Kirsch, i.e., bit her in the leg, which resulted in a laceration. The city further adduced evidence that, prior to Taxi's attack on Kirsch, Taxi, without provocation, caused serious injury to Kirsch's dog, and threatened Kirsch's daughter, son-in- law and grandson. Reviewing this evidence in a light most favorable to the city, any rational trier of fact could have found the essential elements of Cleveland Cod. Ord. S 604.03(a), supra, proven beyond a reasonable doubt. The verdict, therefore, was supported by sufficient evidence. We decide the manifest weight issue by applying the standard articulated in State v. Thompkins (1997), 78 Ohio St.3d 380, 387: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, 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. At trial, Coughlin argued that Taxi was neither vicious nor dangerous. In the alternative, Coughlin contended that if Taxi was vicious or dangerous, she was not placed on notice of that fact. -6- However, the evidence revealed that on three prior occasions, Taxi, without provocation, exhibited behavior which, pursuant to the foregoing relevant ordinances, rendered the dog dangerous and/or vicious. The evidence further revealed that, on two of those occasions, the Coughlins were notified of such behavior. Coughlin also argued that, at the time Taxi bit Kirsch's dog, Taxi was being teased, tormented, abused or assaulted by Kirsch's dog. However, no evidence was adduced in support of this conclusory statement. On the contrary, the evidence suggested that Kirsch's dog wandered to the driveway adjacent to the Coughlin property, after which Taxi, although on a leash, attacked Kirsch's dog, causing the dog serious injury, and then attempted to bite Kirsch's grandson, while he attempted to rescue Kirsch's dog. Therefore, based upon the evidence adduced at trial, we cannot say the trier of fact clearly lost its way and created such a manifest miscarriage of justice that we must vacate the conviction and reverse for a new trial. Hence, the conviction was not against the manifest weight of the evidence. In her final assignment of error, appellant asserts she was the victim of selective prosecution. However, appellant provides neither citation to the record nor any authority in support of her assignment of error as required by App.R. 16(A)(7), therefore, pursuant to App.R. 12 (A)(2), this court declines to address it. Judgment affirmed. -7- It is ordered that appellee recover of appellant 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. JOSEPH J. NAHRA, P.J. AND TERRENCE O'DONNELL, J., CONCUR JUDGE KENNETH A. ROCCO 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 decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). -8- APPENDIX Coughlin's assignments of error state: I. THE JUDGMENT OF THE TRIAL COURT IS WRONG AS A MATTER OF LAW AS THE STATUTE REQUIRES THAT THE STATE MUST SHOW THAT THE APPELLANT'S DOG WAS VICIOUS OR DANGEROUS PRIOR TO THE DATE OF THE INCIDENT IN QUESTION. II. THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE WHERE IT WAS NOT PROVEN BEYOND A REASONABLE DOUBT THAT APPELLANT'S DOG ENGAGED IN ANY ACTION THAT MIGHT BE DEEMED DANGEROUS OR VICIOUS, OR HAD BITTEN ANYONE. III. THE JUDGMENT OF THE TRIAL COURT IS WRONG AS A MATTER OF LAW AS THE APPELLANT MUST HAVE BEEN PLACED ON NOTICE THAT THEIR ANIMAL WAS A DANGEROUS OR VICIOUS DOG. IV. THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE WHERE IT WAS NOT PROVEN BEYOND A REASONABLE DOUBT THAT APPELLANT HAD BEEN PLACED ON NOTICE THAT THEY OWNED A DANGEROUS DOG. V. THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE WHERE IT WAS NOT PROVEN BEYOND A REASONABLE DOUBT THE APPELLANT WAS THE OWNER, HARBORER, OR KEEPER OF THE DOG IN QUESTION. VI. THE JUDGMENT OF THE TRIAL COURT IS WRONG .