State v. Hill , 2021 Ohio 294 ( 2021 )

[Cite as State v. Hill, 2021-Ohio-294.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, APPEAL NOS. C-190638
: C-190639
Plaintiff-Appellee, C-190640
C-190641
vs. : TRIAL NOS. C-19CRB-10074A
C-19CRB-10074B
RICSHAWN HILL, C-19CRB-10074C
C-19CRB-10074D
Defendant-Appellant. :
: O P I N I O N.
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: February 3, 2021
Andrew W. Garth, Interim City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Keith C. Forman, Assistant Prosecuting Attorney for Plaintiff-
Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffman,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Defendant-appellant Ricshawn Hill appeals his convictions, following
a bench trial, for four counts of cruelty against companion animals. In four
assignments of error, Hill challenges the sufficiency and the weight of the evidence
supporting his convictions, contests the propriety of an in-court identification, and
argues that the trial court erred in admitting both hearsay and improper other-acts
evidence.
{¶2} Following our review of the record, we find that the trial court
erroneously admitted a deputy dog warden’s testimony concerning statements made
to him from persons at the scene about who owned the dogs, because that testimony
was inadmissible hearsay. But because Hill admitted both to ownership of the four
animals that were the subject of his convictions and to his inability to care for them,
we find that the trial court’s admission of the hearsay statements was harmless error.
{¶3} We further find that the trial court’s admission of video evidence
concerning the conditions of two animals that were not the subject of the charges
was erroneous because the evidence was irrelevant and was improper other-acts
evidence under Evid.R. 404(B). But because the record contained ample evidence
regarding the conditions of the four dogs that were the subject of Hill’s convictions,
specifically that those animals had been tortured, tormented, or had an act of cruelty
committed against them, and because Hill admitted to ownership of the dogs and to
his inability to care for them, we find that the admission of the improper other-acts
evidence was harmless error and we affirm the trial court’s judgments.
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OHIO FIRST DISTRICT COURT OF APPEALS
Factual Background
{¶4} Hill was charged with four counts of cruelty against companion
animals in violation of R.C. 959.131(D)(1).
{¶5} At trial, Deputy Brandon Henry, a dog warden with the Society for the
Prevention of Cruelty to Animals (“SPCA”), testified that he responded to an
anonymous tip that the SPCA received regarding animals in a garage at 1873 Herron
Avenue. Deputy Henry spoke to the residents of the home, and testified over
objection that the residents told him the dogs were in the garage, denied ownership
of the dogs, identified themselves as “uncles,” and stated that “he hadn’t been by to
take care of them.”
{¶6} Deputy Henry found four dogs in the garage in “filth and squalor.” He
testified that the garage lacked ventilation and that the floor was covered in feces
that he estimated had been there for multiple weeks. Deputy Henry described the
dogs as energetic and kind, but noted that they were underweight and malnourished.
There were no windows or light in the garage, and it contained no food or water for
the animals. According to Deputy Henry, the odor coming from the garage was
indescribable. In addition to these four dogs, Deputy Henry testified that two full-
grown dogs were found on the back porch in a metal crate that was suited for one
dog. The deputies seized the four dogs found in the garage, but not the dogs found
on the porch.
{¶7} A sergeant who responded with Deputy Henry recorded a video of the
conditions in the garage. Video of the two dogs found on the back porch was also
taken and played for the court over objection.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} A neighbor provided a telephone with Hill’s number programmed in
that Deputy Henry used to call Hill. Deputy Henry testified that during their
telephone conversation, Hill admitted to ownership of the four dogs found in the
garage. Hill told Deputy Henry that the dogs were his, that he did not want them to
be seized, and that he had been unable to take care of the dogs because he had been
in a legal battle and “locked up.” Over objection, Deputy Henry identified Hill in
court as the person to whom he had spoken on the phone. Deputy Henry testified
that he had never met Hill in person, but the person whom he spoke to on the
telephone provided a social security number. Deputy Henry verified that the social
security number belonged to Ricshawn Hill. He also obtained a photograph of
Ricshawn Hill when verifying the information, and testified that the photograph was
Hill, the defendant in court.
{¶9} The trial court found Hill guilty of all four counts of cruelty to
companion animals and imposed a sentence of 90 days in jail for each offense, a
$200 fine, and court costs. The sentences for the offenses were ordered to be served
concurrently.
Sufficiency and Weight
{¶10} In his first assignment of error, Hill challenges the sufficiency and
weight of the evidence supporting his convictions.
{¶11} In a challenge to the sufficiency of the evidence, the question is
whether after reviewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found all the essential elements of the crime
beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus. In contrast, when considering a challenge to
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OHIO FIRST DISTRICT COURT OF APPEALS
the weight of the evidence, the court must examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses, and
determine whether, in resolving conflicts in the evidence, the court clearly lost its
way and created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d
380, 387, 678 N.E.2d 541 (1997).
{¶12} Hill was convicted of four counts of cruelty to companion animals in
violation of R.C. 959.131(D)(1), which provides that “[n]o person who confines or
who is the custodian or caretaker of a companion animal shall negligently * * *
[t]orture, torment, or commit an act of cruelty against the companion animal.” Hill
specifically argues that the state failed to establish that he was the custodian or
caretaker of the animals and that an act of cruelty was committed against them.
{¶13} We first consider Hill’s argument that the state failed to establish that
he was the custodian or caretaker of the animals. Hill admitted in a telephone call
with Deputy Henry that the four dogs found in the garage belonged to him. Hill,
however, contends that the state failed to establish his identity as the person with
whom Deputy Henry spoke on the phone. Deputy Henry, using a telephone from a
neighbor that had Hill’s telephone number programmed in, called Hill. The person
who answered the deputy’s call identified himself as Ricshawn Hill, provided a social
security number, and admitted to ownership of the dogs and his inability to care for
them. Despite having the opportunity to do so, the person to whom Deputy Henry
spoke never once denied ownership of the animals. Deputy Henry then looked up
Hill in the system and confirmed that the social security number provided during the
telephone call belonged to Ricshawn Hill. Viewed in the light most favorable to the
prosecution, the deputy’s verification of Hill’s identifying information coupled with
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OHIO FIRST DISTRICT COURT OF APPEALS
Hill’s admission to ownership of the animals was sufficient to establish that he was
the custodian or caretaker of the animals. See Jenks at paragraph two of the
syllabus.
{¶14} We next consider Hill’s argument that the state failed to establish that
acts of cruelty had been committed against the animals. R.C. 959.131(A)(2) provides
that the definitions of cruelty, torment, and torture, as used in the statute, have the
same meanings as the definitions set forth in R.C. 1717.01. R.C. 1717.01(B) provides
that “ ‘Cruelty,’ ‘torment,’ and ‘torture’ include every act, omission, or neglect by
which unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed
to continue, when there is a reasonable remedy or relief.”
{¶15} Deputy Henry testified that the dogs were found in filth and squalor, in
a garage with a floor that was covered in feces. The dogs were kept in a garage that
had no ventilation or light and contained no food or water. They were also visibly
underweight and malnourished. This testimony was sufficient to establish that an
act of cruelty, torment, or torture had been committed against the dogs. See Jenks at
paragraph two of the syllabus.
{¶16} We further hold that Hill’s convictions for cruelty against companion
animals were not against the manifest weight of the evidence. While Hill was not a
resident of the home where the animals were found, he admitted to ownership of
dogs and to his inability to care for them. This was not the rare case in which the
trier of fact lost its way and committed such a manifest miscarriage of justice in
finding Hill guilty that his convictions must be reversed. See Thompkins, 78 Ohio
St.3d at 387, 678 N.E.2d 541.
{¶17} The first assignment of error is overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
In-Court Identification
{¶18} In his second assignment of error, Hill argues that the trial court erred
in admitting Deputy Henry’s in-court identification of Hill.
{¶19} At trial, Deputy Henry identified Hill as the person to whom he had
spoken on the phone and who had admitted to ownership of the four dogs found in
the garage. Defense counsel objected to this identification on the grounds that
Deputy Henry had never seen Hill before the trial. The trial court overruled Hill’s
objection.
{¶20} Deputy Henry testified that he called Hill on a neighbor’s telephone
that was programmed with Hill’s number. The person to whom Deputy Henry spoke
on the phone identified himself as Ricshawn Hill, immediately admitted to
ownership of the dogs, and provided a social security number that Deputy Henry
later verified belonged to Ricshawn Hill. Deputy Henry also obtained a photograph
of Ricshawn Hill when verifying the information, and testified that the photograph
was Hill, the defendant in court. We hold that the in-court identification of Hill was
reliable and that the trial court did not err in admitting it. See State v. Shelton, 1st
Dist. Hamilton No. C-170547, 2018-Ohio-3895, ¶ 35.
{¶21} The second assignment of error is overruled.
Hearsay
{¶22} In his third assignment of error, Hill argues that the trial court erred in
admitting hearsay evidence, specifically Deputy Henry’s testimony regarding
statements made by residents of the home where the dogs were found. We review a
trial court’s admission of hearsay statements for an abuse of discretion. State v.
Smith, 2019-Ohio-3257, 141 N.E.3d 590, ¶ 15 (1st Dist.).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶23} Deputy Henry testified that the residents of the home told him that the
dogs were in the garage, denied ownership of the dogs, and stated that “he hadn’t
been by to take care of them.” Defense counsel objected to this testimony, arguing
that it was hearsay. The state contended that the statements were not being offered
for the truth of the matter, but rather to show the state of mind of the deputy and
explain his conduct. The trial court agreed with the state and allowed the testimony
because it explained “why he did what he did, the effect on the listener.”
{¶24} “[E]xtrajudicial statements made by an out-of-court declarant are
properly admissible to explain the actions of a witness to whom the statement was
directed.” State v. Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d 401 (1980). So
when testimony is offered to explain the subsequent investigative activities of police
officers and not to prove the truth of the matter asserted, it may be admissible as
nonhearsay in certain circumstances. Id. “[I]n order for testimony offered to explain
police conduct to be admissible as nonhearsay, the conduct to be explained should be
relevant, equivocal, and contemporaneous with the statements; the probative value
of statements must not be substantially outweighed by the danger of unfair
prejudice; and the statements cannot connect the accused with the crime charged.”
State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 27; State v.
Jones, 1st Dist. Hamilton No. C-130359, 2014-Ohio-3110, ¶ 20.
{¶25} Here, the statements were not admissible as nonhearsay because they
connected Hill with the offenses. The residents denied ownership of the dogs and
told Deputy Henry that “he hadn’t been by to take care of them.” This directly
implicated Hill as the custodian or caretaker of the four dogs in the garage. We
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OHIO FIRST DISTRICT COURT OF APPEALS
therefore hold that the trial court abused its discretion in allowing Deputy Henry to
testify as to residents’ statements.
{¶26} Having determined that these statements were admitted improperly,
we must determine what effect, if any, their admission had on the outcome. Because
Hill objected to these statements, we review for harmless error. State v. Jones, 160
Ohio St.3d 314, 2020-Ohio-3051, 156 N.E.3d 872, ¶ 18; State v. Hayes, 1st Dist.
Hamilton No. C-190461, 2020-Ohio-5322, ¶ 51. Under this standard, the state has
the burden of establishing that the error did not affect the defendant’s substantial
rights. Jones at ¶ 18. A defendant’s substantial rights are affected where the error is
prejudicial and affected the outcome of the trial. Id.; Hayes at ¶ 51.
{¶27} Following our review of the record, we find that admission of the
hearsay statements was harmless error. Absent the residents’ statements, ownership
of the dogs was clearly established; Hill admitted that the four dogs in the garage
belonged to him and that he had been unable to take care of them. We cannot say
that the admission of the hearsay statements affected the outcome of the trial. The
third assignment of error is overruled.
Other-Acts Evidence
{¶28} In his fourth assignment of error, Hill argues that the trial court erred
in permitting other-acts evidence to be introduced in violation of Evid.R. 404(B).
“The admissibility of other-acts evidence pursuant to Evid.R. 404(B) is a question of
law.” State v. Hartman, Slip Opinion No. 2020-Ohio-4440, ¶ 22.
{¶29} Hill specifically argues that it was error to admit the video recording of
the two dogs found on the back porch. Defense counsel objected to this portion of
the video being played for the court, arguing that it was not relevant because Hill was
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OHIO FIRST DISTRICT COURT OF APPEALS
not charged with any offense relating to these particular dogs. The state argued that
the recording was relevant to the totality of the circumstances concerning the
conditions in which the dogs were kept. The trial court overruled the objection,
stating that the particular portion of the video was “relevant to the totality of the
circumstances.”
{¶30} Under Evid.R. 401, relevant evidence is that which has “any tendency
to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.”
Evidence concerning the conditions of the two dogs found on the back porch was not
relevant to determining whether Hill committed the offenses of cruelty to companion
animals with respect to the four dogs found in the garage. Hill did not reside at the
home where these two animals were found, and the record contains no testimony or
evidence that Hill was the custodian or caretaker of them. Further, Hill was not
charged with any offense pertaining to these two dogs. The video evidence
concerning the condition of the two dogs found on the back porch was irrelevant and
inadmissible.
{¶31} We further find that, even if this evidence had some probative value, it
was inadmissible under Evid.R. 404(B). Evid.R. 404(B) provides that “[e]vidence of
other crimes, wrongs, or acts is not admissible to prove the character of a person in
order to show action in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Under Evid.R. 404(B),
other-acts evidence is only admissible when it is probative of a nonpropensity-based
issue. Hartman at ¶ 22.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶32} When deciding whether evidence is admissible for a nonpropensity
purpose, a threshold question as to whether the evidence is relevant must be
answered. Id. at ¶ 24. And “the inquiry is not whether the other-acts evidence is
relevant to the ultimate determination of guilt. Rather, the court must evaluate
whether the evidence is relevant to the particular purpose for which it is offered.”
Id. at ¶ 26.
{¶33} The state contends that the video evidence concerning the conditions
of the two dogs found on the back porch was relevant to determining Hill’s
knowledge and his lack of mistake or accident. We disagree. As discussed above, the
record contains no evidence linking Hill to these two dogs. Absent any evidence that
Hill was the custodian or caretaker of these animals, evidence concerning their
condition was not relevant to establishing Hill’s knowledge of the condition of the
four dogs found in the garage or that Hill’s failure to care for those dogs was not a
mistake or accident. We consequently find that the video evidence depicting the
conditions of the dogs on the back porch was inadmissible under Evid.R. 404(B).
{¶34} Although the trial court erred in admitting this evidence, we find that
any resulting error was harmless. Jones, 160 Ohio St.3d 314, 2020-Ohio-3051, 156
N.E.3d 872, at ¶ 18. The record contained ample evidence that the dogs were
malnourished and were kept in filthy conditions, specifically in a garage that had a
floor covered in feces, lacked ventilation and windows, and did not contain food or
water for the animals. The record also contained evidence that Hill admitted to
ownership of the dogs and to his inability to care for them. We cannot find that Hill
would have been acquitted but for the admission of this video evidence.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶35} Hill’s fourth assignment of error is overruled. The judgments of the
trial court are, accordingly, affirmed.
Judgments affirmed.
ZAYAS, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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