Full Case Name:  City of Whitehall v. Zageris (Alise K.)

Defendant, Alise Zageris, appeals from a judgment of the Franklin County Municipal Court and raises ten assignments of error as follows:

"1. The jury instruction on 'harboring or keeping' more than three dogs was vague and overbroad and denied Appellant a fair trial.

"2. The reading to the jury on voir dire examination of witnesses that the prosecutor knew he would not and did not call deprived Appellant a fair trial.

"3. The prosecution and trial court erred by permitting a witness to testify after the witness' attorney informed the prosecutor and the court that the witness would assert his Fifth Amendment privilege against self-incrimination.

"4. Appellant was denied a fair trial when the motion in limine granted by the court as to similar acts was violated three times by prosecution witnesses. Appellant was improperly denied a mistrial.

"5. When the trial court permits the prosecution to call a witness who has previously notified the court and counsel that he will claim privilege against self-incrimination, it is error to deny counsel the opportunity to argue the reasonable inferences from that testimony.

"6. The trial court erred by admitting dog licenses when the signatures on the licenses were not properly authenticated.

"7. The trial court erred by not holding Whitehall Municipal Ordinance 505.13, possessing more than three dogs, unconstitutional.

"8. The maximum term of imprisonment imposed on Appellant, without consideration of the criteria in R.C. Section 2929.12, and with recognition that Appellant should not go to jail, violated due process and Ohio law.

"9. The trial court erred by finding Appellant was not entitled to a free transcript.

"10. The cumulative effect of assignments of error one through nine deprived Appellant of a fair trial."

Defendant was charged with violation of two ordinances of the City of Whitehall, one charge being of keeping or harboring noisy dogs, and the other being a charge of keeping or harboring more than three dogs. After a jury trial, defendant was found not guilty of keeping or harboring noisy dogs but guilty of keeping or harboring more than three dogs.

The first assignment of error raises a question as to the correctness of the trial court's charge upon the meaning of harboring or keeping as used in the Whitehall ordinance, which was passed twenty-three days and effective only a few days prior to the date on which defendant was charged with violating the ordinance. Whitehall Codified Ordinances Section 505.13 reads, in pertinent part, as follows:

"(a) No person shall keep or harbor more than three (3) dogs, excluding puppies, less than four (4) months old, in any single family dwelling, or in any separate suite in a two-family dwelling or apartment dwelling within this city. The terms 'dwelling' and 'suite,' as used in this section, include the parcel of land upon which the building containing the dwelling or suite is located, and also all out-buildings located on that parcel of land."

*2 The trial court charged the jury as follows with respect to the meaning of keeping and harboring (Tr. C-162):

" * * * A person harbors an animal when this person is in possession and control of the premises where the animal lives. A person keeps an animal when that person undertakes to manage, control or care for an animal as owners are accustomed to do, or a person who exercises control over the animal on his premises with knowledge of the animal's presence on the premises. The keeper or harborer of an animal may also be the owner of the animal."

Defendant objected to this charge as being overly broad. We agree.

In another case, Whitehall v. Zageris (April 25, 1985), No. 83AP-805, unreported (1985 Opinions 1198), involving a different Whitehall ordinance, and in which no question as to the correctness of a charge was raised, this court noted at 1204 in connection with harboring:

" * * * [T]hat one who harbors a dog need not be the owner of the dog, but if he or she is in possession and control of the premises where the dog was kept, and at least silently acquiesced to the dog being kept there, that person may be found to be harboring the dog."

The trial court, however, charged the jury not with respect to harboring but with respect to keeping, that one keeps an animal where he exercises control over an animal on his premises with knowledge of its being there. Such a standard falls far short of the acquiescent standard we previously referred to. The trial court's charge is also overly broad in other respects.

The word "keep" with respect to a dog means to give the dog a home--to give it shelter, food and protection as an owner or family ordinarily shelters, feeds and protects a domestic animal. While the word "keep" implies ownership, possession and control may be sufficient if coupled with furnishing a home, food, shelter and protection, but control alone is not.

Harboring a dog is similar to keeping a dog but differs in that ownership is not required. One harbors a dog when he gives shelter and refuge to the dog and tends to it as an owner would with food and protection, with possession alone being sufficient. Harboring often connotes furtiveness, but with respect to a dog furtiveness is not an element. In addition to ownership, another distinction between keeping and harboring a dog is the duration for which a home is furnished the dog, keeping ordinarily connoting permanency or indefiniteness; whereas, harboring connotes temporary.

Under the trial court's charge, the mere exercise of control over a dog would be sufficient to establish keeping; whereas, possession and control of the premises would be sufficient to establish harboring. With respect to a dog, however, at least possession is an essential element, which, as we noted in our prior decision, may be demonstrated by acquiescence in the dog's continued presence on the premises, which a person owns and on which he lives, it being possible for more than one person to be in possession of an animal.

Although not raised on appeal, we note that the trial court did not charge as to culpability. While both keeping and harboring connote knowledge, if not intent, at the very least recklessness would be the appropriate standard. See R.C. 2901.21(B). The first assignment of error is well- taken.

The second assignment of error relates to the reading by the prosecutor of a list of witnesses during voir dire examination of the jury. Although the conduct of the prosecutor is questionable under the circumstances, we find no demonstration of prejudice resulting, especially since the jury acquitted defendant of the charge of keeping or harboring noisy dogs. The second assignment of error is not well-taken.

The third and fifth assignments of error are related in that they pertain to the calling of a witness, defendant's son, whom the prosecutor knew would invoke the Fifth Amendment privilege against self-incrimination. Defendant relies upon the syllabus of State v. Dinsio (1964), 176 Ohio St. 460, which reads as follows:

"In a criminal case, where a claim of a witness that he can not be compelled to testify as a witness because of the privilege of immunity from self- incrimination is properly established, it is error prejudicial to the defendant for the court to permit counsel for the state, by continued questioning of the witness, which questions go unanswered, to get before the jury innuendoes and inferences of facts, conditions and circumstances which the state could not get before the jury by direct testimony of the witness."

We find no basis for distinguishing this case from the syllabus rule of Dinsio. Here, the prosecutor was aware not only of the possible incriminatory nature of the questions posed to the witness but also of the witness's intent to refuse to testify upon the ground of self-incrimination, the prosecutor having been advised by defense counsel as well as counsel for the witness, of the witness's intent.

Although possibly by proper instructions or other actions the prejudicial effect of forcing the witness to claim the Fifth Amendment privilege before the jury with the resultant inferences and innuendos could have been cured either by a court instruction or by the type of argument that defense counsel attempted to make during closing argument, the trial court sustained an objection to defense counsel's argument and instructed the jury to disregard it. Essentially, defense counsel attempted to suggest to the jury that reasonable inferences of defendant's innocence would be possible from the witness's claiming the privilege against self-incrimination and refusing to ask a certain question posed by the prosecution. If the trial court had permitted defense counsel to make this argument to the jury, perhaps the prejudicial effect of questioning the witness in the presence of the jury under the circumstances would have been diminished. Accordingly, the third and fifth assignments of error are well-taken.

By the fourth assignment of error, defendant contends that she was denied a fair trial because prosecution witnesses referred to matters excluded prior to trial by a motion in limine, and, thus, the trial court improperly denied a mistrial predicated thereon. We find no prejudicial error. Even assuming the conduct to be improper, it was properly cured by a trial court instruction, and a mistrial was not necessary or required. The fourth assignment of error is not well-taken.

By the sixth assignment of error, defendant contends that the trial court erred in admitting dog licenses issued for several dogs into evidence. The licenses on their face indicated the owner of the dog to be defendant. However, the signatures on the licenses were only "A. Zigaris," which also could designate defendant's son. The prosecution did not attempt to present expert testimony as to whether the signature was that of defendant. Nevertheless, we find no prejudicial error in the admission of the licenses into evidence. At the time the licenses were issued, there was no prohibition against keeping or harboring more than three dogs, the ordinance in question having been enacted shortly before the time of the alleged offense and having taken effect only a day or two prior to the alleged offense. Nevertheless, since the licenses were issued in defendant's name, we find no prejudice in admitting the license forms into evidence without authentication of the signature since, ordinarily, it is not presumed that a person seeks a dog's license in another's name without authority. The sixth assignment of error is not well-taken.

By the seventh assignment of error, defendant contends that the ordinance in question, Whitehall Codified Ordinances Section 505.13, is unconstitutional. As to facial constitutionality, a similar ordinance was found constitutional in Downing v. Cook (1982), 69 Ohio St.2d 149. Although the Whitehall ordinance does not contain the area limitations of the Berea ordinance involved in Downing, we find no distinction with respect to facial unconstitutionality, although a question might arise with respect to dogs kept on a very large tract of land, there being no evidence as to the size of the premises upon which defendant resides.

Nor do we accept the argument of defendant that the ordinance was adopted as a result of defendant, or her son, keeping several dogs on the premises as making the ordinance unconstitutional as applied to defendant. Ordinances of this nature are generally adopted as a result of a problem existing in an effort to cure the problem, not only with respect to the situation that is known but also with respect to future or unknown similar situations. Although there were hints of discriminatory enforcement, the evidence does not prove such discrimination, especially in light of the fact that the ordinance has been in effect for such a short period of time. The seventh assignment of error is not well-taken.

The eighth assignment of error pertains to the sentence imposed. Although some of the trial court's comments as to sentence may be questionable, we find no prejudicial error under the circumstances, especially in light of the fact that we have sustained several of the assignments of error, necessitating a reversal and remand for new trial. Accordingly, the eighth assignment of error is not well-taken.

By the ninth assignment of error, defendant contends that the trial court erred in finding defendant not to be sufficiently indigent as to be entitled to a transcript of proceedings at public expense. There was evidence that defendant's income is such as to place her at or near the poverty level. However, there was also evidence that she in part is supported by her son, who owns the premises on which defendant lives.

Particularly bothersome are the trial court comments that defendant could sell her dogs to pay for the transcript, since there is no evidence as to the value of the dogs, the trial court apparently being a self-proclaimed expert as to the value of dogs of the nature defendant was convicted of harboring or keeping (rather than owning). Nevertheless, defendant has obtained the transcript, and it has been filed as part of the record on appeal, and, as a result of our determination herein, the expense of the transcript will be taxed as part of the costs of this appeal against defendant City of Whitehall. Accordingly, we find no prejudicial error, and the ninth assignment of error is not well-taken.

The tenth assignment of error raises no separate issue but relates only to the cumulative effect of the other assignments of error. Accordingly, the tenth assignment of error is not well-taken.

For the foregoing reasons, the first, third and fifth assignments of error are sustained, and the remaining assignments of error are overruled; and the judgment of the Franklin County Municipal Court is reversed, and this cause is remanded to that court for further proceedings in accordance with law consistent with this opinion.

Judgment reversed and cause remanded.

NORRIS, J., concurs.

BROWN, J., retired, of the Supreme Court of Ohio, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution, participating in the hearing but not in the disposition of this case.

Ohio App.,1985.