Johnson v. Commonwealth

OPINION OF THE COURT

Appellant, Olivia Johnson, is the owner of Franklin, a dog of mixed breeding and medium stature. On April 16, 2012, a bench trial was held in the Jefferson District Court to determine Johnson’s liability for two incidents where Franklin attacked other dogs. The first incident occurred on August 2, 2011, when Franklin attacked a neighborhood dog while Franklin was being walked by Johnson’s mother. The second incident occurred on November 20, 2011, when Franklin attacked a dog that lived with residents across the hall from Johnson’s apartment while Franklin and the other dog were both in a common area hallway. This incident also involved Johnson’s mother, who testified that she had just returned from walking Franklin when the attack occurred. She further testified that although she had a leash in her hand, Franklin was not secured. Johnson was not present for either attack.

The District Court found no liability for the August 2, 2011, incident. Regarding the incident that occurred on November 20, 2011, the court found Johnson guilty of a Class A misdemeanor for “failing to restrain a dangerous dog in violation of Chapter 91 of the Louisville Metro County Code of Ordinances.” As a result, Johnson was ordered to pay $250 and serve a 90 day jail sentence which was conditionally discharged for two years. The trial court also provided Metro Animal Services with the discretion to euthanize Franklin, who was in their custody at that time. The Jefferson Circuit Court affirmed the judgment of the trial court. Johnson petitioned the Court of Appeals for discretionary review of her judgment and sentence which the court denied. Upon her . subsequent petition to this Court, we granted discretionary review.

Preservation

Johnson presents two arguments on appeal. First, she asserts that the Ordinances are unconstitutional and invalid. Next, she contends that she was physically incapable of performing the duty imposed on her by the Ordinances. Johnson concedes that although these arguments were raised before the Jefferson Circuit Court, they were not presented to the Jefferson District Court and, thus, not properly preserved for our review. See Hayes v. Commonwealth, 175 S.W.3d 574, 589 (Ky.2005). Johnson also failed to comply with CR 24.08 which requires that she provide the Attorney General with proper notice when challenging the constitutionality of a statute. Benet v. Commonwealth, 253 S.W.3d 528, 532 (Ky.2008). Therefore, we will not address the merits of these two arguments. Nevertheless, we reverse Johnson’s conviction due to improper enforcement of the Ordinances.

The Ordinances

Chapter 91 of the Louisville Metro Code of Ordinances (“the Ordinances”), attempts to regulate dangerous dogs and potentially dangerous dogs. Any person found in violation of §§ 91.150 and 91.152 is guilty of a Class A misdemeanor. § 91.999(A). It is unclear from the record under which specific provision Johnson was convicted. Pursuant to § 91.152(A) and (B), a dangerous dog or potentially dangerous dog determination must be made by the Director of Louisville Metro Animal Services and/or his or her designee (the “Director”).

*352 Failure to Properly Enforce the Ordinances

The record before this Court does not indicate that Johnson’s dog Franklin was ever formally classified as either “dangerous” or “potentially dangerous” by the Director. However, the trial court found that Franklin was a dangerous dog as a result of the incident that occurred on November 20, 2011. Yet, the dangerous dog classification is a condition precedent to a charge under § 91.152. Here, the trial court erroneously issued a post facto determination of that issue at trial. That ordinance requires that this classification be made by the Director prior to the offense proscribed in order for it to constitute an offense under § 91.152.

Furthermore, the record demonstrates that a field behavior test was administered on Franklin by an Animal Control Officer after the initial August 2, 2011, incident. Franklin received a perfect score and demonstrated extremely positive behavioral characteristics. The “general evaluation and comments” section of that report is blank. If there is any documentation classifying Franklin as a dangerous or potentially dangerous dog prior to the November 20, 2011, incident, it was'not presented to this Court and, therefore, does not instruct our decision.

Conclusion

For the foregoing reasons, we hereby reverse the decision of the Jefferson Circuit Court and remand with instructions to vacate the judgment of the Jefferson District Court.