John Aikman v. City of Indianapolis ( 2013 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Sep 24 2013, 5:33 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KAREN CELESTINO-HORSEMAN CAMERON G. STARNES
Indianapolis, Indiana JESSICA ALLEN
Office of Corporation Counsel
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOHN AIKMAN, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1209-OV-470
)
CITY OF INDIANAPOLIS, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David J. Certo, Judge
Cause Nos. 49F12-1205-OV-19672, 49F12-1206-OV-22654
September 24, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
CASE SUMMARY
On May 11, 2012, the Animal Care and Control Division of the Department of Public
Safety of the City of Indianapolis (“ACC”) impounded thirty-three dogs belonging to
Appellant-Defendant John Aikman. Upon impounding the dogs, ACC alleged that Aikman
had committed numerous violations of Chapter 531 of the Revised Code of the Consolidated
City and County Indianapolis/Marion, Indiana (“Revised Code”). The alleged violations
included the failure to maintain proper identification of all of the dogs, the failure to
immunize all dogs over the age of three months against rabies, the failure to affix a tag
indicating that a dog has received the required rabies vaccination to the dog’s collar, and the
failure to provide the dogs with a clean, sanitary, and healthy living environment. The dogs
were subsequently released to Aikman on May 22, 2012. On May 30, 2012, ACC
impounded fifty-one dogs and puppies belonging to Aikman. Upon impounding the dogs,
ACC again alleged that Aikman had committed numerous violations of Chapter 531 of the
Revised Code.
On August 17, 2012, following three days of trial, the trial court found that Aikman
had committed numerous violations of Chapter 531 of the Revised Code in relation to the
events of May 11, 2012, and May 30, 2012. The trial court also entered a permanent
injunction which barred Aikman from owning or caring for any animal in Marion County.
Aikman appealed. On appeal, Aikman raises numerous claims that we restate as: (1) whether
the trial court erred in denying his request for a continuance, (2) whether the trial court
abused its discretion in admitting certain evidence at trial, (3) whether the evidence was
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sufficient to sustain the trial court’s determination that Aikman committed numerous
violations of Chapter 531 of the Revised Code, and (4) whether Aikman received sufficient
notification of the Appellee-Plaintiff City of Indianapolis’s (“City”) intention to seek a
permanent injunction. We affirm.
FACTS AND PROCEDURAL HISTORY
On May 11, 2012, Sergeant Jason Kindig of ACC inspected animals owed or kept by
Aikman in response to a call from a Greenfield, Indiana animal control officer. Sergeant
Kindig observed thirty-three dogs in one parked vehicle that Aikman had driven from
Greenfield to Marion County, Indiana with the dogs in the vehicle. Sergeant Kindig issued
numerous citations alleging violations of Chapter 531 of the Revised Code, including twenty-
six alleged violations of Revised Code section 531-202 (the failure to maintain proper
identification of all of the dogs), twenty-six alleged violations of Revised Code section 531-
301 (the failure to immunize all dogs over the age of three months against rabies), twenty-six
alleged violations of Revised Code section 531-302 (the failure to affix a tag indicating that a
dog has received the required rabies vaccination to the dog’s collar), and thirty-three alleged
violations of Revised Code section 531-401 (the failure to provide the dogs with a clean,
sanitary, and healthy living environment). ACC impounded the thirty-three dogs. After a
hearing on May 22, 2012, the trial court ordered that the dogs be released to Aikman and set
the matter for a trial on the alleged citations.
On May 30, 2012, Officer Kimberly Wolsiffer of ACC responded to an anonymous
report of care and treatment violations at Aikman’s residence. Officer Wolsiffer was able to
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observe the backyard of the house. However, Aikman would not give consent for Officer
Wolsiffer to search the inside of his residence. Officer Wolsiffer applied for and received an
administrative warrant to search inside the home. During her search of Aikman’s residence,
Officer Wolsiffer smelled a strong smell of urine and observed that the conditions of the
home were very poor. Officer Wolsiffer observed feces and urine stains on the floor
coverings in addition to piles of feces and puddles of urine on the floor. Officer Wolsiffer
found that Aikman had fifty-one dogs and puppies in the residence. Officer Wolsiffer issued
numerous citations alleging violations of Chapter 531 of the Revised Code, including thirteen
alleged violations of Revised Code section 531-202 (the failure to maintain proper
identification of all of the dogs), twenty-nine alleged violations of Revised Code section 531-
301 (the failure to immunize all dogs over the age of three months against rabies), twenty-
nine alleged violations of Revised Code section 531-302 (the failure to affix a tag indicating
that a dog has received the required rabies vaccination to the dog’s collar), and fifty-one
alleged violations of Revised Code section 531-401 (the failure to provide the dogs with a
clean, sanitary, and healthy living environment). ACC impounded the fifty-one dogs. After
a hearing on June 6, 2012, the trial court set the matter for a trial on the alleged citations and
ordered that the dogs be held until the conclusion of trial.
The trial was conducted over the course of three days. On June 22, 2012, the first day
of trial, the City conducted its examination of Aikman. After the first day of trial, Aikman
and his trial counsel suffered a breakdown of the attorney-client relationship. On June 29,
2012, counsel filed a motion to withdraw her appearance as Aikman’s counsel. In her
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motion, counsel indicated that Aikman was aware of her desire to withdraw her appearance.
On July 2, 2012, prior to the second day of trial, the trial court granted counsel’s
motion to withdraw her appearance. Aikman then requested a continuance. This request was
denied. Trial continued with the City presenting the rest of its witnesses. Aikman
represented himself during the proceedings conducted on July 2, 2012, engaging in cross-
examination of the City’s witnesses.
On August 17, 2013, the third day of trial, Aikman, again appearing pro se, presented
his case. Aikman called witnesses and examined these witnesses. At the conclusion of the
evidence, the trial court found that with respect to the events that occurred on May 11, 2012,
Aikman committed twenty-six violations of Revised Code section 531-202, eleven violations
of Revised Code section 531-301, and twenty-six violations of Revised Code section 531-
302. With respect to the events that occurred on May 30, 2012, the trial court found that
Aikman committed thirteen violations of Revised Code section 531-202, fourteen violations
of Revised Code section 531-301, twenty-nine violations of Revised Code section 531-302,
and fifty-one violations of Revised Code section 531-401. The trial court also issued an
order permanently enjoining Aikman from owning or caring for animals in Marion County.
This appeal follows.
DISCUSSION AND DECISION
I. Denial of Aikman’s Request for a Continuance
Aikman contends that the trial court abused its discretion in denying his request for a
continuance following the trial court’s decision to allow Aikman’s counsel to withdraw her
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appearance on the second morning of trial.
The decision to grant or deny a continuance is within the sound
discretion of the trial court, and we will not reverse that decision unless the
trial court has abused its discretion. Homehealth, Inc. v. Heritage Mut. Ins.
Co., 662 N.E.2d 195, 198 (Ind. Ct. App. 1996), trans. denied. A trial court
abuses its discretion when it reaches a conclusion which is clearly against the
logic and effect of the facts or the reasonable and probable deductions which
may be drawn therefrom. Id. If good cause is shown for granting the motion,
denial of a continuance will be deemed to be an abuse of discretion. Koors v.
Great Southwest Fire Ins. Co., 530 N.E.2d 780, 783 (Ind. Ct. App. 1988)[,]
[(abrogated on other grounds by Martin v. Amoco Oil Co., 679 N.E.2d 139,
144 (Ind. Ct. App. 1997)]; see Ind. Trial Rule 53.5.
The unexpected and untimely withdrawal of counsel does not
necessarily entitle a party to a continuance. Koors, 530 N.E.2d at 783.
However, the denial of a continuance based on the withdrawal of counsel may
be error when the moving party is free from fault and his rights are likely to be
prejudiced by the denial. Id.Further, among the things to be considered on appeal from the denial of
a motion for continuance, we must consider whether the denial of a
continuance resulted in the deprivation of counsel at a crucial stage in the
proceedings. See Homehealth, Inc., 662 N.E.2d at 198. We must also
consider whether a delay would have prejudiced the opposing party to an
extent sufficient to justify denial of the continuance. Id.
Hess v. Hess, 679 N.E.2d 153, 154 (Ind. Ct. App. 1997) (brackets added).
The Marion County local rule regarding the withdrawal of an attorney’s appearance
states as follows:
All withdrawals of appearances shall be in writing and by leave of Court.
Permission to withdraw shall be given only after the withdrawing attorney has
given his client ten days written notice of his intention to withdraw, has filed a
copy of such with the Court; and has provided the Court with the party’s last
known address; or upon a simultaneous entering of appearance by new counsel
for said client. The letter of withdrawal shall explain to the client that failure to
secure new counsel may result in dismissal of the client’s case or a default
judgment may be entered against him, whichever is appropriate, and other
pertinent information such as trial setting date or any other hearing date. The
Court will not grant a request for withdrawal of appearance unless the same
has been filed with the Court at least ten days prior to trial date, except for
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good cause shown.
Marion Cir. & Supe. Ct. Civ. R. LR49-TR3.1-201 (“Local Rule 49-Tr3.1-201”),
http://www.in.gov/judiciary/files/marion-local-rules.pdf (last visited August 26, 2013). We
have held that the good cause exception stated in the last sentence of this local rule applies
when counsel has failed to timely file her written request with the court at least ten days prior
to the trial date. K.S. v. Marion Cnty. Dept. of Child Servs., 917 N.E.2d 158, 164 (Ind. Ct.
App. 2009). However, the other requirements imposed on the requesting attorney must still
be satisfied to comply with the local rule. Id.In the instant matter, the first day of trial was held on June 22, 2012. On this day, the
City conducted its examination of Aikman. Due to Aikman’s failure or refusal to respond to
the questions that were directed to him, Aikman was the only witness to testify on this date.
At some point soon after the conclusion of the first day of trial, Aikman and his counsel
suffered a breakdown of the attorney-client relationship.
On June 29, 2012, counsel filed a motion for leave to withdraw her appearance as
counsel for Aikman. In this motion, counsel stated that there has been an “irretrievable
breakdown” of the attorney-client relationship. Appellant’s App. p. 74. Counsel included
Aikman’s last known address and indicated that Aikman was aware of her intent to withdraw.
On July 2, 2012, prior to the second day of trial, the trial court questioned counsel
about her request to withdraw her appearance. With respect to the breakdown of the
attorney-client relationship, counsel stated as follows:
And, the problem is Mr. Aikman feels that I did not properly represent him [on
the first day of trial] because I didn’t put forth his evidence. And, I explained
7
to him that the City had to put on their evidence first and then we would have
our turn to get his side out and raise our defenses.
At that point, I kept getting these crazy e-mails from Mr. Aikman and I
just feel -- We tried to call him this morning. We also e-mailed him to get in
touch with us if he wanted me, if there was any reason he wanted me to stay on
the case, and I did not get an answer to the email[.]
July 2, 2012 Tr. pp. 4-5 (brackets added). Counsel also indicated that Aikman had failed to
“sufficiently” pay her for her services. July 2, 2012 Tr. p. 5. For his part, Aikman stated that
he believed counsel had been ineffective, claiming that counsel “just completely ignores me.”
July 2, 2012 Tr. p. 8. In permitting counsel to withdraw her appearance, the trial court
indicated that it knew that counsel had not completely ignored Aikman. The trial court
acknowledged the ten-day rule set forth in the local rules but found that, under the
circumstances, “it seems appropriate to release [counsel] from representing Mr. Aikman.”
July 2, 2012 Tr. p. 5.
The record reveals that only ten days had passed between the first and second day of
trial, and the irretrievable breakdown of the attorney-client relationship did not occur until
the days following the first day of trial. Counsel notified Aikman of her intent to withdraw
prior to filing her motion with the trial court. Upon filing her motion to withdraw, counsel
informed the court of the breakdown of the attorney-client relationship and indicated that
Aikman was aware of her intent to withdraw. Counsel also provided the trial court with
Aikman’s last known address as required by Local Rule 49-Tr3.1-201.
Again, the unexpected and untimely withdrawal of counsel does not necessarily entitle
a party to a continuance. Hess, 679 N.E.2d at 154 (citing Koors, 530 N.E.2d at 783). Upon
review of the denial of a request for a continuance, we consider whether the individual was a
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fault, causing the need for the continuance; whether the individual’s rights are likely to be
prejudiced by the denial; whether the denial resulted in the deprivation of counsel at a crucial
stage in the proceedings; and whether a delay would have prejudiced the opposing party. Id.Here, based on the timing of the breakdown of the attorney-client relationship, it was
impossible for counsel to comply with the ten-day rule set forth in Local Rule 49-Tr3.1-201.
The record demonstrates that Aikman was largely, if not entirely, at fault for the need for the
continuance. During the first day of trial, Aikman caused a delay in resolving the matter by
failing or refusing to answer questions directed toward him. Aikman thereafter levied what
appear to be unfounded allegations of ineffective assistance at his counsel despite counsel’s
attempt to explain the legal proceedings to Aikman and to assure Aikman that they would
have the opportunity to present their defenses.1 The record further demonstrates that the City
would have been prejudiced by a continuance of the second day of trial as its witnesses, some
of whom had appeared on numerous previous dates, were present and ready to testify.
Further, we cannot say that Aikman suffered prejudice as a result of the denial. While
the denial resulted in Aikman having to represent himself on the second day of trial, the
record indicates that the trial court, in which the instant matter was filed, is designed to and
did proceed in a manner conducive to ensuring that pro se litigants like Aikman had the
opportunity to “get a fair shake.” July 2, 2012 Tr. p. 12. Aikman was given ample
opportunity to challenge the remainder of the City’s case. The record reflects that Aikman
1
While not relevant to the determination as to whether the trial court abused its discretion in denying
Aikman’s request for a continuance, it must be noted that on the second day of trial, Aikman did not arrive
until one hour after the proceedings were scheduled to begin despite being notified about what time the
proceedings were scheduled to begin.
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competently did so. Moreover, Aikman did not present his case until the third day of trial
which was conducted on August 17, 2012. This delay of over one month gave Aikman the
opportunity to obtain new counsel to represent him during the presentation of his case.
Aikman, however, did not do so.
In light of these circumstances, we cannot say that the trial court abused its discretion
in determining that there was good cause to allow counsel to withdraw her appearance
without satisfying the 10-day requirement of Local Rule 49-Tr3.1-201. Likewise, we cannot
say that the trial court abused its discretion in denying Aikman’s request for a continuance of
the second day of trial.
II. Admission of Evidence
On appeal, Aikman contends that the trial court abused its discretion in admitting the
evidence recovered during Officer Wolsiffer’s search of his residence. Specifically, Aikman
claims that the evidence recovered during the search of his residence should not have been
admitted at trial because the search warrant, which authorized Officer Wolsiffer to search his
residence, was not supported by probable cause. Aikman also claims that the evidence
recovered during the search of his residence should not have been admitted at trial because
Officer Wolsiffer’s search exceeded the scope of the search warrant.
Our standard of review for rulings on the admissibility of evidence is
essentially the same whether the challenge is made by a pre-trial motion to
suppress or by an objection at trial. Ackerman v. State, 774 N.E.2d 970, 974-
75 (Ind. Ct. App. 2002), reh’g denied, trans. denied. We do not reweigh the
evidence, and we consider conflicting evidence most favorable to the trial
court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005),
trans. denied. We also consider uncontroverted evidence in the defendant’s
favor. Id.10
Cole v. State, 878 N.E.2d 882, 885 (Ind. Ct. App. 2007). A trial court has broad discretion in
ruling on the admissibility of evidence. Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct.
App. 2003) (citing Bradshaw v. State, 759 N.E.2d 271, 273 (Ind. Ct. App. 2001)).
Accordingly, we will reverse a trial court’s ruling on the admissibility of evidence only when
the trial court abused its discretion. Id. (citing Bradshaw, 759 N.E.2d at 273). An abuse of
discretion involves a decision that is clearly against the logic and effect of the facts and
circumstances before the court. Id. (citing Huffines v. State, 739 N.E.2d 1093, 1095 (Ind. Ct.
App. 2000)).
A. Whether the Search Warrant was Supported by Probable Cause
Aikman argues that the evidence recovered during the search of his residence should
not have been admitted at trial because the search warrant which authorized Officer
Wolsiffer to search his residence was not supported by probable cause. “A search of a
private house is presumptively unreasonable if conducted without a warrant.” Germaine v.
State, 718 N.E.2d 1125, 1129 (Ind. Ct. App. 1999), trans. denied.
Both the Fourth Amendment to the United States Constitution and Article 1,
Section 11 of the Indiana Constitution require probable cause for the issuance
of a search warrant. Casady v. State, 934 N.E.2d 1181, 1188 (Ind. Ct. App.
2010), trans. denied (citing Mehring v. State, 884 N.E.2d 371, 376 (Ind. Ct.
App. 2008), trans. denied). Probable cause is a fluid concept incapable of
precise definition and must be decided based on the facts of each case. Id.Smith v. State, 982 N.E.2d 393, 404-05 (Ind. Ct. App. 2013), trans. denied.
As the purpose of the Fourth Amendment and Article I, Section 11 “is to safeguard the
privacy and security of individuals against arbitrary invasions by governmental officials, a
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warrant is required during civil as well as criminal investigations unless some recognized
exception to the warrant requirement applies.” Germaine, 718 N.E.2d at 1129. However,
“probable cause in the criminal sense is not required for administrative search warrants.”
Sensient Flavors LLC v. Ind. Occupational Safety & Health Admin., 969 N.E.2d 1053, 1055
(Ind. Ct. App. 2012). Probable cause to conduct a nonconsensual inspection of a premise for
administrative purposes can be established by presenting specific evidence of an existing
violation or by showing compliance with reasonable legislative or administrative standards
for inspecting the premises in question. Id.The duty of a reviewing court is to determine whether the magistrate
had a “substantial basis” for concluding that probable cause existed. State v.
Spillers, 847 N.E.2d 949, 953 (Ind. 2006). In this sense, a “reviewing court”
includes both the trial court ruling on a motion to suppress and an appellate
court reviewing that decision. Id. A “substantial basis” requires the reviewing
court, with significant deference to the magistrate’s determination, to focus on
whether reasonable inferences drawn from the totality of the evidence support
the determination of probable cause. Id. We review the trial court’s
substantial basis determination de novo, but we nonetheless afford significant
deference to the magistrate’s determination as we focus on whether reasonable
inferences drawn from the totality of the evidence support that determination.
Id. We consider only the evidence presented to the issuing magistrate, not
after-the-fact justifications for the search. Casady, 934 N.E.2d at 1189.
State v. Shipman, 987 N.E.2d 1122, 1126 (Ind. Ct. App. 2013). Upon review, doubtful cases
should be resolved in favor of upholding the warrant. Id.Aikman challenges the sufficiency of the probable cause to support the warrant under
both the Fourth Amendment and Article I, Section 11.
1. Fourth Amendment
The Fourth Amendment reads as follows:
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The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
The Fourth Amendment is made applicable to the states via the Due Process Clause of the
Fourteenth Amendment. W.H. v. State, 928 N.E.2d 288, 294 (Ind. Ct. App. 2010) (citing
Mapp v. Ohio, 367 U.S. 643, 656 (1961)). “Evidence obtained in violation of a defendant’s
Fourth Amendment rights may not be introduced against him at trial.” Id. (citing Mapp, 367
U.S. at 648-60).
In the instant matter, on May 30, 2012, ACC filed an application for the issuance of an
administrative search warrant for a home located at 1740 Dawson Street in Indianapolis. The
application for the issuance of the search warrant read as follows:
Comes now [ACC], and applies to the Court for the issuance of an
Administrative Search Warrant to enter the premises located at 1740 Dawson
Street, Indianapolis … for the purpose of impounding animals that are being
kept in violation of Chapter 531 of the Revised Code of the Consolidated City
of Indianapolis and Marion County (“Revised Code”). In support thereof,
[ACC] alleges and says the following:
1. Facts giving rise to a reasonable belief that animal(s) are located
inside the structures on the Real Estate are in violation of said chapter 531 of
the revised code are set forth in the affidavit of Kim Wolsiffer, attached hereto
as Exhibit “A”.
2. Pursuant to Section 531-712(d) of the Revised Code, [ACC]
officers are not authorized to enter a privately owned enclosure in pursuit of an
animal without the consent of the owner, lessee or other occupant of the
enclosure, or other legal process.
3. Pursuant to Section 531-721 of the Revised Code, an animal
found confined or abandoned on private property in violation of Chapter 531
of the Revised Code shall be impounded.
4. This Application is made for the sole purpose of exercising
authority to inspect for current violations of Chapter 531 of the Revised Code
and impound any animals that are being kept in violation of Chapter 531.
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5. [ACC] requests that the Sheriff of Marion County and/or the
Indianapolis Metropolitan Police Department be ordered to provide the [ACC]
officers with an escort onto and into the Real Estate for the purpose of
preserving the peace and assisting in making forced entry, if necessary.
Appellant’s App. p. 93. The affidavit of Officer Wolsiffer read, in relevant part, as follows:
4. ON WEDNESDAY MAY 30, 2012, AT APPROX. 0750HRS, I,
[ACC] OFFICER K WOLSIFFER, REPORTED TO 1740 DAWSON ST. IN
REFERENCE TO A NEGLECT INVESTIGATION WITH A NOTE
SUSPECTING THAT THIS RESIDENCE IS BEING USED AS A PUPPY
MILL. UPON MY ARRIVAL, I OBSERVED A SINGLE STORY HOME
WITH A COVERED FRONT PORCH. THE DRIVEWAY WAS
ENCLOSED BY A SIX FOOT CHAIN LINK FENCE AND TWO GATES,
ONE DOUBLE GATE FOR VEHICLE ACCESS, AND ONE WALK
THROUGH GATE, WHICH HAD RED MATERIAL STRETCHED
ACROSS IT AND PAINTED ON IT WERE THE WORDS, “NO ENTRY,
NO TRESPASS, K-9 APPOINTMENT ONLY, K-9 NO ENTRY.” THE
WALK THROUGH GATE HAD A MAILBOX MOUNTED ON IT AND
AFFIXED TO THE LID WAS A YELLOW DOOR NOTICE FROM [ACC]
DATED 05/29/12, AT APPROX. 2030 HRS, ADVISING THE RESIDENT
THAT MAKING CONTACT WITH [ACC] WAS NECESSARY.
5. WHILE STANDING AT THE WALK THROUGH GATE I
WAS ABLE TO SEE A BLACK STATION WAGON BEARING AN OUT
OF STATE LICENSE PLATE AND A BROKEN REAR WINDSHIELD
WITH BROKEN GLASS NEARBY. THE YARD TO THE RIGHT SIDE OF
THE HOUSE WAS PARTIALLY ENCLOSED BY A HOME-MADE
ENCLOSURE WHICH STOOD ABOUT FOUR FEET AND WAS
COVERED IN A BLUE MATERIAL. INSIDE OF THIS ENCLOSURE
WERE TALL GRASS, SOME OVERTURNED BUCKETS, AND DEBRIS.
BEHIND THAT ENCLOSURE WAS A TALLER FENCE, ALSO
COVERED IN RED MATERIAL LIKE THE DRIVEWAY GATES. ON
THE FRONT PORCH SAT A LARGE MOTORCYCLE THAT APPEARED
TO BE BLACK AND GRAY IN COLOR WITH A LARGE CLEAR BUG
SHIELD.
6. THERE WAS NO WAY FOR THIS OFFICER TO ENTER
THE PORCH OR GET TO THE FRONT DOOR, HOWEVER, I WAS ABLE
TO POSITION MYSELF CLOSE ENOUGH TO THE RIGHT SIDE OF THE
PORCH WALL TO REACH A NEARBY WINDOW TO KNOCK ON. NO
ONE REPORTED TO THE FRONT DOOR BUT I DID BEGIN TO HEAR
SEVERAL DOGS BARKING INSIDE OF THE HOME. BY THIS TIME
THERE WERE SEVERAL NEIGHBORS THAT HAD REPORTED TO
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THEIR RESPECTIVE FRONT PORCHES. A MALE NEIGHBOR TO THE
LEFT OF 1740 WAS STANDING ON HIS PORCH WITH TWO YOUNG
GIRLS. THIS INDIVIDUAL INVITED ME TO WALK IN HIS OPEN SIDE
YARD SO THAT I COULD VIEW ALONG THE DRIVEWAY SIDE OF
1740. AS I NEARED THE REAR OF THE RESIDENCE, THE FENCING
STOOD APPROX. 5FT 4IN TALL AND I COULD SEE THAT THERE
WAS A SECOND GATE SEPARATING THE DRIVEWAY FROM THE
BACKYARD. I WAS ABLE TO OBSERVE A GREAT DEAL OF DEBRIS
ALONG WITH A RED LATE MODEL FORD MUSTANG WITH BLACK
RACING STRIPES AND BLACK ROOF. THERE WERE SEVERAL
VARIOUS ITEMS BEING USED TO SECURE OPEN ACCESS BETWEEN
FENCE AND GROUND. THE ITEMS INCLUDED AN OCTAGONAL
WINDOW WITH CASING, WOOD, CARDBOARD, PLASTIC SCREENS
THAT HAD BEEN REMOVED FROM BOX FANS, ETC. AT THIS TIME,
A SKINNY WHITE MALE WITH GRAY FACIAL HAIR, WEARING A
DARK GRAY OR BLACK FADED TSHIRT, EXITED THROUGH A
BACK DOOR THAT HAD WOOD PLANKS MOUNTED ON IT. UPON
HIS EXIT, HE WAS ACCOMPANIED BY SEVERAL SMALL WHITE
MALTESE LOOKING DOGS, NUMBER UNKNOWN. THE INDIVIDUAL
ADVISED ME TO MEET HIM AT THE FRONT GATE SO THAT WE
COULD SPEAK. I DID AS REQUESTED, AS THIS SAME INDIVIDUAL
EXITED THE FRONT DOOR; I ASKED HIM HOW MANY DOGS HE
HAD. HE STATED THAT HE HAD TOO MANY TO HANDLE BUT
THAT HE DID NOT HAVE A CHOICE BECAUSE HE WAS NOW
NURSING ALL 33 OF THE DOGS BACK TO HEALTH AFTER ANIMAL
CONTROL GAVE THEM ALL BACK TO HIM SICK. I ASKED HIM
WHAT HE MEANT BY THAT AND HE STATED THAT ALL OF THE
DOGS WERE NOW SICK WITH KENNEL COUGH AFTER HAVING
BEEN AT THE POUND. HE WENT ON TO STATE THAT NOW HE HAD
PNEUMONIA AS A RESULT OF THE DOG’S KENNEL COUGH. WHEN
I ASKED HIM TO CLARIFY HE STATED THAT HE REALLY DIDN’T
KNOW HOW HE CONTRACTED PNEUMONIA BUT HE HAD IT.
7. THIS INDIVIDUAL, LATER IDENTIFIED AS JOHN
AIKMAN, BEGAN TO SHOW SIGNS OF AGITATION AND HAD
BEGUN TO RAISE HIS VOICE. I EXPLAINED TO THIS INDIVIDUAL
THAT ALL I NEEDED FROM HIM WAS EVIDENCE OF PROPER CARE
AND TREATMENT OF THE ANIMALS THAT HE HAS POSSESSION OF
DUE TO THE FACT THAT THERE HAD BEEN [A] COMPLAINT
CALLED INTO [ACC]. I CONTINUED BY SAYING THAT SINCE THE
ANIMALS ARE KEPT INSIDE, I WOULD NEED HIM TO ESCORT ME
INSIDE OF THE HOME SO THAT I COULD OBSERVE EVIDENCE OF
PROPER CARE. HE STATED THAT I WOULD NOT BE COMING
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INSIDE OF HIS HOME UNTIL HE WAS AWAKE. I QUESTIONED
WHAT HE MEANT BY THAT BECAUSE HE WAS STANDING BEFORE
ME AND HAD BEEN SPEAKING WITH ME. HE ATTEMPTED TO
CORRECT HIMSELF BY SAYING THAT HIS WIFE WAS STILL ASLEEP
AND THAT I NEEDED TO WAIT 15 MINUTES, MAYBE ONE HALF
HOUR BEFORE COMING INSIDE OF HIS HOME. I ADVISED THIS
INDIVIDUAL THAT IN THIS PARTICULAR INSTANCE I WOULD NOT
BE WORKING OFF OF HIS SCHEDULE AND IF NECESSARY I WOULD
PROCEED WITH A WARRANT REQUEST FOR [ACC] TO ENTER HIS
HOME IN THAT MANNER. HE STATED THAT THAT WAS WHAT I
WOULD HAVE TO DO. I ACKNOWLEDGED BY SAYING, “OKAY”
AND BEGAN TO RETURN TO MY [ACC] VEHICLE. THE MAN AGAIN
STATED THAT IF I WOULD JUST WAIT 15 OR 20 MINUTES THAT HE
WOULD WAKE UP AND HIS WIFE WOULD GET UP BUT WE, [ACC],
WEREN’T GOING TO TAKE HIS DOGS AND MAKE THEM SICK
AGAIN. I ADVISED THIS INDIVIDUAL THAT I WOULD BE
REQUESTING A WARRANT FOR [ACC] TO GAIN ACCESS TO HIS
PROPERTY AS IT RELATED TO THE CARE AND TREATMENT OF
ANY AND ALL ANIMALS ON THIS PROPERTY.
8. AT THAT TIME, I ENTERED MY VEHICLE AND LEFT
THE SCENE TO RETURN TO [ACC] TO SHARE THIS INCIDENT WITH
SGT PAYNE, UNIT 8808, REQUEST A WARRANT FOR THIS ADDRESS,
AND SUBMIT THIS REPORT.
9. UPON MY RETURN TO [ACC], I WAS ADVISED BY
DEPUTY CHIEF BROWN THAT MR. AIKMAN HAD CALLED HE AND
REQUESTED THAT I RETURN TO HIS PROPERTY FOR INSPECTION.
HE HAD AGREED WITH DEPUTY CHIEF BROWN TO LET ME
INSPECT THE INSIDE OF HIS HOME WHERE HE IS KEEPING HIS
DOGS.
10. I THEN RELOCATED BACK TO 1740 DAWSON STREET;
UPON MY ARRIVAL I MADE CONTACT WITH MR. AIKMAN. MR.
AIKMAN INVITED ME INTO THE BACKYARD OF THE RESIDENCE. I
THEN ASKED HIM TO LET THE DOGS OUT OF THE RESIDENCE FOR
ME TO VIEW THE DOGS AND THEN INSPECT THE RESIDENCE
WITHOUT THE LARGE NUMBER OF DOGS PRESENT. MR. AIKMAN
LET THE DOGS OUT OF THE RESIDENCE AT WHICH POINT,
NUMEROUS DOGS EXITED AND BEGAN TO BITE AT MY LEGS AND
ANKLES. I WAS ABLE TO THEN RETREAT FROM THE BACKYARD
WITHOUT INJURY.
11. ONCE I RELOCATED TO THE DRIVEWAY, MR. AIKMAN
THEN TOLD ME THAT I WAS NO LONGER WELCOME TO INSPECT
THE INSIDE OF THE RESIDENCE. AT WHICH POINT, I ATTEMPTED
16
TO LEAVE THE PROPERTY. MR. AIKMAN AGAIN CALLED ME
BACK AND SAID I COULD NOW INSPECT, DUE TO THE BACK AND
FORTH NATURE OF HIS CONSENT I REQUESTED A SUPERVISOR TO
THE SCENE. MR. AIKMAN THEN, AGAIN STATED “I LOST MY
CHANCE” AND COULD NO LONGER INSPECT.
12. BASED UPON THE COMPLAINT AND MY
INVESTIGATION, I BELIEVE THAT THE VIOLATIONS OF THE
PROVISIONS OF SECTION 531-401, OF THE [REVISED CODE] ARE
ONGOING AT THE PREMISES AND REQUEST ACCESS INSIDE THE
RESIDENCE FOR INSPECTION AND POSSIBLE IMPOUNDMENT OF
ANIMALS BEING KEPT IN VIOLATION OF THE [REVISED CODE].
Appellant’s App. pp. 95-98.
Based upon the information presented in the application and Officer Wolsiffer’s
affidavit, we can say that it was reasonable for Officer Wolsiffer to believe that violations of
the Revised Code were occurring inside Aikman’s residence. Officer Wolsiffer’s initial
observations of the property coupled with Aikman’s initial denial to allow Officer Wolsiffer
to search his property and the “back and forth nature” of his subsequent willingness to allow
Office Wolsiffer to search his residence support the reasonable inference that Aikman was
committing violations of Chapter 531 of the Revised Code. In addition, the documents also
tend to show compliance with reasonable standards adopted by ACC for inspecting a
residence. Therefore, we conclude that a reasonably prudent person could make a practical,
common-sense determination, given all the circumstances set forth in the application and
Officer Wolsiffer’s affidavit, that there was a fair probability that Aikman was committing
violations of Chapter 531 of the Revised Code inside the residence.
2. Article I, Section 11
Article I, Section 11 reads as follows:
17
Unreasonable search or seizure; warrant. The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
search or seizure, shall not be violated; and no warrant shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing
the place to be searched, and the person or thing to be seized.
The legality of a governmental intrusion under the Indiana Constitution turns on an
evaluation of the reasonableness of the police conduct under the totality of the circumstances.
Trotter v. State, 933 N.E.2d 572, 580 (Ind. Ct. App. 2010) (citing Litchfield v. State, 824
N.E.2d 356, 359 (Ind. 2005)). “Although there may be other relevant considerations under
the circumstances, the reasonableness of a search or seizure turns on a balancing of the
following: (1) the degree of concern, suspicion, or knowledge that a violation has occurred,
(2) the degree of intrusion the method of the search or seizure imposes on the citizen’s
ordinary activities, and (3) the extent of law enforcement needs.” Id. (citing Litchfield, 824
N.E.2d at 361). The burden is on the State to show that under the totality of the
circumstances, the police intrusion was reasonable. Id. (citing State v. Gerschoffer, 763
N.E.2d 960, 965 (Ind. 2002)).
Here, ACC’s degree of concern, suspicion, or knowledge that a violation of the
Revised Code had occurred was high. ACC had received a complaint alleging that Aikman
was neglecting animals in his care and operating a “puppy mill” in violation of Chapter 531
of the Revised Code. The needs of ACC were great, as the search was necessary to make
sure that many animals were not being mistreated or neglected. Further, while the scope of
the requested warrant did reflect an intrusion into Aikman’s ordinary activities, such an
intrusion was not unwarranted in light of the degree of ACC’s suspicion and knowledge that
18
violations were occurring and the resulting needs of ACC to investigate the alleged violations
of Chapter 531 of the Revised Code. In light of these circumstances, we conclude that the
search of Aikman’s residence was reasonable.
The application filed by ACC together with Officer Wolsiffer’s affidavit were
sufficient to establish probable cause that Aikman was committing violations of Chapter 531
of the Revised Code in his residence. These documents satisfy the constitutional
requirements of the Fourth Amendment and Article I, Section 11. Accordingly, we reject
Aikman’s claims in this regard.
B. Whether Officer Wolsiffer’s Search Exceeded the Scope of the Search Warrant
Aikman also claims that the evidence recovered during Officer Wolsiffer’s search of
his residence should not have been admitted during trial because Officer Wolsiffer’s search
exceeded the scope of the search warrant. Specifically, Aikman claims that Officer Wolsiffer
exceeded the scope of the search warrant because the search only permitted ACC to enter
onto his property, not to enter his residence. We cannot agree.
The order issued by the trial court granting ACC’s request for an administrative search
warrant in the instant matter reads, in relevant part, as follows:
WHEREAS, a proper Application for Administrative Search Warrant
has been submitted to this Court, a copy of which is attached hereto and
incorporated herein, and whereas this Court has examined said application and
is duly advised in the premises, the Court now finds that there is a reasonable
basis for the issuance of this Administrative Search Warrant.
THEREFORE, YOU ARE HEARBY ORDERED to permit the Chief of
the [ACC], by his/her designee, to enter onto the real estate commonly known
as 1740 Dawson Street, Indianapolis, Indiana, for the purpose [of] impounding
any and all dead or alive animals, that are being kept in violation of the
provisions of Chapter 531 of the Revised Code….
19
Appellant’s App. p. 94 (emphasis and brackets added).
As is shown above, ACC’s application for the administrative search warrant expressly
requested permission to “enter the premises located at 1740 Dawson Street … for the purpose
of impounding animals that are being kept in violation of Chapter 531 of the Revised Code.”
Appellant’s App. p. 93. This clear language leaves no doubt that ACC sought permission to
enter Aikman’s residence. Because the documents, when read together, clearly demonstrate
that the search warrant authorized ACC to enter Aikman’s residence in order to determine
whether Aikman was violating Chapter 531 of the Revised Code, we conclude that the trial
court’s order included the authorization for Officer Wolsiffer to enter Aikman’s residence.
Upon entering the residence, Officer Wolsiffer found fifty-one dogs and puppies and
observed numerous violations of Chapter 531 of the Revised Code. Nothing in the record
suggests that Officer Wolsiffer’s search exceeded the scope of the search warrant.
Furthermore, “real estate” or “real property” may be defined as “Land and anything
growing on, attached to, or erected on it, excluding anything that may be severed without
injury to the land.” BLACK’S LAW DICTIONARY 1254 (8th ed. 2004). The trial court’s order
granted [ACC] to enter “the real estate … for the purpose [of] impounding any and all dead
or alive animals” that were being kept on the property. Appellant’s App. p. 94. We conclude
that this includes entering the residence erected on the real estate.
Having concluded that the search warrant was supported by probable cause and that
the search did not exceed the scope of the search warrant, we further conclude that the trial
court did not abuse its discretion in admitting the evidence recovered during the search of
20
Aikman’s residence.
C. Fundamental Error
Alternatively, Aikman argues that his failure to challenge the legality of the search
warrant by requesting suppression of the evidence at trial amounted to fundamental error.
[T]o qualify as fundamental error, “an error must be so prejudicial to the rights
of the defendant as to make a fair trial impossible.” Mitchell v. State, 726
N.E.2d 1228, 1236 (Ind. 2000) (citations omitted). To constitute fundamental
error, “the error must constitute a blatant violation of basic principles, the harm
or potential for harm must be substantial, and the resulting error must deny the
defendant fundamental due process.” Id. (citations omitted).
Brown v. State, 799 N.E.2d 1064, 1067 (Ind. 2003) (footnote omitted).
Upon review, the record demonstrates that Aikman challenged the legality of the
search warrant and the admission of the evidence recovered during the search of his
residence on at the conclusion of his presentation of evidence. The City argued that such a
challenge was untimely as the evidence recovered during the search had already been
admitted into the record. However, we need not decide whether Aikman’s challenge should
be considered to be a timely challenge to the admission of the evidence in light of our
conclusions that the search warrant was supported by probable cause and that the search of
Aikman’s residence did not exceed the scope of the search warrant. In making these
conclusions, we also concluded that the evidence recovered during the search of Aikman’s
residence was admissible at trial. Because the evidence was admissible at trial, Aikman
cannot prove that any alleged failure to challenge the admissibility of the evidence amounted
to error, much less fundamental error.
III. Sufficiency of the Evidence
21
Aikman contends that the evidence is insufficient to sustain the judgment of the trial
court. Specifically, Aikman claims that the evidence is insufficient to prove that he violated
Chapter 531 of the Revised Code. Aikman also claims that the evidence is insufficient to
sustain the trial court’s order permanently enjoining him from owning or caring for animals
in Marion County.
A violation of a county ordinance must be proved by a preponderance of the evidence.
Ind. Code § 34-28-5-1(e). A determination that an individual has committed violations of the
Revised Code is a general judgment, and we will review it as such. At the conclusion of the
hearing, the trial court explained its decision in a manner that constitutes findings of fact.
Where a trial court enters findings of fact and conclusions of law sua sponte
and without being required to do so by rule, specific findings control only as to
issues they cover, and a general judgment standard applies to any issues upon
which the trial court has not made findings. Perdue v. Murphy, 915 N.E.2d
498 (Ind. Ct. App. 2009). When reviewing findings, we determine whether the
evidence supports the findings and then whether the findings support the
judgment. Id. We will reverse such a judgment only when it is shown to be
clearly erroneous, i.e., when it is unsupported by the findings of fact and
conclusions thereon, id, or when the trial court applies the wrong legal
standard. Fraley v. Minger, 829 N.E.2d 476 (Ind. 2005). We defer
substantially to the trial court’s findings of fact, but we evaluate conclusions of
law de novo. Id.Jewell v. City of Indpls., 950 N.E.2d 773, 776-77 (Ind. Ct. App. 2011). Upon review, we
neither reweigh the evidence or the credibility of the witnesses. Martin v. Roberts, 464
N.E.2d 896, 904 (Ind. 1984). Instead, we consider the evidence most favorable to the
judgment along with all reasonable inferences to be drawn therefrom. Id.A. Whether the Evidence Is Sufficient to Sustain the Trial Court’s Determination
that Aikman Committed Several Violations of Chapter 531 of the Revised Code
22
In arguing that the evidence is insufficient to prove that he violated Chapter 531 of the
Revised Code, Aikman claims that the evidence is insufficient to prove that he: (1) failed to
provide proper identification for the animals in his care, (2) failed to vaccinate or provide
rabies tags for the animals in his care, (3) mistreated his animals by giving them a home
remedy for kennel cough, and (4) kept the dogs in unclean conditions.
1. Proper Identification
Revised Code section 531-202 provides that a person who owns a dog in Marion
County “shall ensure that each dog … owned by that person bears a permanent means of
identification at all times.” The means of identification required by this section shall be in
addition to any tags required to be worn by the dogs by state law, and shall be either by
means of a microchip implanted in the dog which bears a registered identification number or
a permanent tag attached to a durable collar worn at all times by the dog. Revised Code §
531-202. This section provides that it shall be a violation of the Revised Code for a person to
own a dog “three (3) months of age or older which is kept in the consolidated city and
county, and which does not bear a permanent means of identification.” Revised Code § 531-
202. Any violation of this section shall be subject to a civil penalty as described in Chapter
103 of the Revised Code. Revised Code § 531-202.
On appeal, Aikman claims that the evidence is insufficient to “support the trial court’s
guilty verdicts” under Revised Code section 531-202. In making this claim, Aikman only
presents an argument relating to the trial court’s determination that he committed twenty-six
violations of this section on May 11, 2012. As such, we will limit our review of the evidence
23
to the trial court’s determination relating to May 11, 2012.
In arguing that the evidence is insufficient to sustain the trial court’s determination
that Aikman committed twenty-six violations of Revised Code section 531-202, Aikman
argues that Sargent Kindig of ACC did not testify how many of the thirty-three dogs
impounded were scanned for microchips. The record, however, reveals that Sargent Kindig
testified that thirty-three animals were impounded on May 11, 2012, none of which were
wearing identification tags or had microchips. Aikman also argues that some of the thirty-
three dogs impounded on May 11, 2012, were puppies that were not yet required to bear
permanent identification. Sargent Kindig testified that of the thirty-three animals that were
impounded on May 11, 2012, seven were young puppies. Therefore, even assuming that
these seven puppies were below the age of three months, there were still twenty-six dogs
impounded, none of which bore the proper identification required by Revised Code section
531-202. As such, we conclude that the evidence is sufficient to prove by a preponderance of
the evidence that, with respect to May 11, 2012, Aikman committed twenty-six violations of
Revised Code section 531-202.
2. Rabies Vaccination
Revised Code section 531-301 provides that it shall be unlawful “to keep a dog …
over the age of three (3) months in the city unless each … dog is immunized against rabies.
Revised Code section 531-301 provides that each dog must bear a tag affixed to its collar
indicating that it has received the required rabies vaccination. Any violation of these sections
shall be subject to a civil penalty as described in Chapter 103 of the Revised Code. Revised
24
Code §§ 531-301, -302.
In claiming that the evidence is insufficient to prove that he violated Revised Code
sections 531-301 and -302, Aikman argues that “[a]t no time did the City establish how many
dogs and puppies exceeded three months of age.” Appellant’s Br. p. 50. Again, we disagree.
With respect to the violations found to have occurred on May 11, 2012, the record
demonstrates that thirty-three dogs were impounded by ACC. Of these thirty-three dogs,
seven were young puppies. Of the remaining twenty-six dogs, the trial court determined that
Aikman possessed records indicating that fifteen dogs had received the required rabies
vaccinations, leaving eleven dogs that had not received the required vaccinations. The
evidence also demonstrates that none of the twenty-six dogs were wearing the required tags
indicating that they had received the required rabies vaccinations. The evidence is sufficient
to prove by a preponderance of the evidence that on this date, Aikman committed eleven
violations of Revised Code section 531-301 and twenty-six violations of Revised Code
section 531-302.
With respect to the violations found to have occurred on May 30, 2012, the citations
issued by Officer Wolsiffer indicate that upon impounding fifty-one dogs and puppies,
Officer Wolsiffer determined that twenty-nine dogs lacked the required rabies vaccinations
and tags. It is reasonable to assume from the citations alleging twenty-nine violations that
only twenty-nine of the fifty-one dogs were over the age of three months, the age when it
becomes necessary to vaccinate a dog under Revised Code section 531-301.
We note that twenty-six of the twenty-nine dogs appear to be the same dogs at issue
25
on May 11, 2012. Again, the trial court determined that Aikman provided adequate records
to prove that fifteen of these dogs had received the required rabies vaccinations. Of the
remaining fourteen dogs, nothing in the record suggests that the eleven of these dogs that
were found to be lacking the required rabies vaccinations on May 11, 2012, had received the
required vaccinations at any time after May 11, 2012. Nothing in the record indicates that
any of the twenty-six dogs that were found to be without the required tags on May 11, 2012,
were wearing the required tags on May 30, 2012. In addition, nothing in the record suggests
that the additional three dogs at issue on May 30, 2012, had received the required rabies
vaccinations or were wearing the required rabies tags.
In light of the reasonable inference that twenty-nine of the fifty-one dogs and puppies
impounded on May 30, 2012, were of the age requiring vaccination, coupled with the
evidence that Aikman could only provide documentation demonstrating that fifteen of the
dogs had received the required vaccinations and none of the twenty-nine dogs were wearing
the required rabies tags, we conclude that the evidence is sufficient to prove by a
preponderance of the evidence that on this date, Aikman committed fourteen violations of
Revised Code section 531-301 and twenty-nine violations of Revised Code section 531-302.
3. Mistreatment of the Animals
In claiming that the evidence is insufficient to sustain the trial court’s determination
that he mistreated his animals, Aikman argues that Jodie Schermerhorn, the City’s witness
who testified that the home remedy for kennel cough given to the dogs by Aikman was
dangerous, was not credible. Specifically, Aikman argues that despite Schermerhorn’s nine
26
years of experience working with animals, her testimony was not credible because she was
not a registered veterinary technician.
Indiana Evidence Rule 702 provides that if “specialized knowledge will assist the trier
of fact to … determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or
otherwise.”
[W]here an expert’s testimony is based upon the expert’s skill or experience
rather than on the application of scientific principles, the proponent of the
testimony must only demonstrate that the subject matter is related to some field
beyond the knowledge of lay persons and the witness possesses sufficient skill,
knowledge or experience in the field to assist the trier of fact to understand the
evidence or to determine a fact in issue. Evid. R. 702(a); Corbin v. State, 563
N.E.2d 86, 92-93 (Ind. 1990).
Lytle v. Ford Motor Co., 696 N.E.2d 465, 469-70 (Ind. Ct. App. 1998). The determination of
the admissibility of expert testimony is a matter within the sound discretion of the trial court,
and we will reverse only for an abuse of that discretion. Id. at 470.
Here, the record demonstrates that Schemerhorn was employed as executive director
of the Spot Spay Neuter Clinic where at least some of Aikman’s dogs and puppies were seen
after being impounded. Schemerhorn testified that she had nine years of experience working
as a veterinary technician and had received on-the-job training for her employment.
Schemerhorn demonstrated that she was familiar with the condition of the dogs when they
arrived at the Spot Spay Neuter Clinic, familiar with the common treatment for a condition
known as “kennel cough,” and familiar with whether certain substances could be dangerous
to dogs. The City demonstrated that the subject matter on which Schemerhorn would testify
27
was related to Schemerhorn’s knowledge about the above-stated matters, and the trial court
determined that Schemerhorn possessed sufficient skill, knowledge, or experience in this
field to assist the court in determining a fact in issue. We agree.
Having determined that the trial court did not abuse its discretion in admitting
Schermerhorn’s testimony, we reiterate again that upon review, we will not reweigh the
credibility of witnesses but rather will consider the evidence most favorable to the judgment.
See Martin, 464 N.E.2d at 904. The evidence most favorable to the judgment of the trial
court indicates that Aikman gave, at least some of, his dogs a home remedy for kennel cough
that consisted of lemon and lime juice, honey, hydrogen peroxide, and water. Schermerhorn
testified that in approximately nine years, she has only administered hydrogen peroxide to a
dog on one occasion and that in that case, the hydrogen peroxide was used to induce
vomiting. Schermerhorn stated that she has never known hydrogen peroxide to be used for
treating a dog with kennel cough. Schermerhorn also testified that lemon and lime juice are
both “very dangerous to animals.” July 2, 2012 Tr. p. 114. Schermerhorn further stated that
giving these materials to a dog could potentially cause “very serious reactions[.]” July 2,
2012 Tr. p. 114. Schermerhorn’s testimony is sufficient to prove by a preponderance of the
evidence that Aikman mistreated his dogs by giving the dogs a home remedy for kennel
cough that included hydrogen peroxide and lemon and lime juices.
4. Unclean Conditions
Revised Code section 531-401(a)(1) provides that every owner or keeper of an animal
shall see that such animal:
28
Is kept in a clean, sanitary and healthy manner is not confined so as to be
forced to stand, sit or lie in its own excrement; the person(s) responsible for
animal(s) shall regularly and as often as necessary to prevent odor or health
and sanitation problems, maintain all animal areas or areas of animal contact.
Any violation of this section shall be subject to a civil penalty as described in Chapter 103 of
the Revised Code. Revised Code § 531-401.
In arguing that the evidence is insufficient to sustain the trial court’s determination
that he committed fifty-one violations of Revised Code section 531-401, Aikman states that
“[w]hile the trial court found that the dogs and puppies were not ‘kept in a clean, sanitary and
healthy manner’, no finding was made that the animals were forced to stand, sit or lie in their
own excrement.” Appellant’s Br. p. 53. Aikman, acknowledges, however, that in making
this determination, the trial court found that he failed to maintain the dogs or the areas that
the dogs came into contact with so as to prevent odor or health and sanitation problems.
The trial court found that Aikman committed fifty-one violations of Revised Code
section 531-401 on May 30, 2012. Officer Wolsiffer testified that on this date, she inspected
Aikman’s residence and determined that it was not suitable for the dogs. During her
inspection of the residence, Officer Wolsiffer noticed that the conditions of the home were
poor. There was a considerable amount of trash and debris, including an abandoned vehicle,
in the backyard of the property where the dogs played. There was a “strong odor” of urine
inside the residence, as well as urine and feces stains on the floor or floor coverings. The
residence contained a lot of clutter and there were swarms of flies in the kitchen.
Officer Wolsiffer observed several “smaller” dogs playing in a room that contained
yard tools, such as a weed eater and a chainsaw. July 2, 2012 p. Tr. 80. There were also
29
urine and feces stains “all over the carpet” in this room. July 2, 2012 p. Tr. 81. In the
basement, Officer Wolsiffer noticed a strong smell of urine and observed “piles of feces” and
“puddles of urine.” July 2, 2012 p. Tr. 82. Officer Wolsiffer noted that there was
insufficient food and water for the dogs kept in the basement. The basement was also musty
and damp.
Upon review, we conclude that Officer Wolsiffer’s testimony is sufficient to prove
beyond a preponderance of the evidence that Aikman committed fifty-one violations of
Revised Code section 531-401 because Aikman failed to keep a clean, sanitary, and healthy
residence that was sufficient to prevent odor or health and sanitation problems.
B. Whether the Evidence Is Sufficient to Sustain the
Trial Court’s Order Permanently Enjoining Aikman from
Owning/Caring for Animals in Marion County
Chapter 103, section 3 of the Revised Code provides that if a person has been found to
have violated the Revised Code, the City is authorized to impose fines and/or seek an
injunction to abate a further violation. Aikman claims, however, that the evidence was
insufficient to sustain the trial court’s order permanently enjoining him from owning or
caring for animals in Marion County because there was no evidence that he would continue
violating Chapter 531 of the Revised Code. We disagree.
The record demonstrates that ACC impounded thirty-three dogs from Aikman on May
11, 2012. At this time, ACC alleged that Aikman had committed numerous violations of
Chapter 531 of the Revised Code. The dogs were released to Aikman on May 22, 2012.
Soon thereafter, on May 30, 2012, ACC impounded fifty-one dogs and puppies, some of
30
which were the same dogs impounded on May 11, 2012, from Aikman. At this time, ACC
alleged that Aikman was continuing to commit some of the original violations and had
committed numerous other violations of Chapter 531 of the Revised Code.
The fact that Aikman had not corrected all prior violations and had committed new
violations in the few days after the dogs were released to him by ACC supports the trial
court’s determination that Aikman would commit both future and ongoing violations of
Chapter 531 of the Revised Code. As such, we conclude that the evidence presented at trial
is sufficient to sustain the trial court’s order permanently enjoining Aikman from owning or
caring for animals in Marion County.
IV. Order Enjoining Aikman from Owning/Caring for Animals
Aikman last contends that he did not receive proper notification that the City intended
to seek an injunction that would permanently prohibit him from owing or caring for animals
in Marion County. Aikman concedes, however, that the petition for an order of
impoundment filed by the City clearly indicated that the City sought such an injunction.
Aikman presents no argument indicating that he did not receive a copy of the City’s petition
or indicating what additional notice of the City’s intention to seek the injunction that he
believed he was entitled to receive. Aikman merely states that both he and his wife loved the
dogs and took great pleasure in caring for the animals. While we do not doubt that Aikman
and his wife took great pleasure in caring for the dogs and that they loved the animals that
were in their care, Aikman has failed to demonstrate that he did not receive proper
31
notification of the City’s intention to seek the above-described injunction.2
The judgment of the trial court is affirmed.
BAILEY, J., and MAY, J., concur.
2
Furthermore, to the extent that Aikman argues that the trial court erred in issuing the order
permanently enjoining him from owning or caring for animals in Marion County because the evidence was
insufficient to prove that he committed the violations alleged by ACC, we disagree in light of our above-stated
conclusion that the evidence was sufficient to sustain the trial court’s determination that Aikman committed the
challenged violations of Chapter 531 of the Revised Code.
32