State v. Sherman , 2015 Ohio 3299 ( 2015 )

[Cite as State v. Sherman, 2015-Ohio-3299.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio/City of Toledo Court of Appeals No. L-14-1060
Appellee Trial Court No. CRB-13-19881
v.
Jodi Sherman DECISION AND JUDGMENT
Appellant Decided: August 14, 2015
*****
David Toska, City of Toledo Chief Prosecutor, and
Henry Schaefer, Assistant Prosecutor, for appellee.
M. Sean McNulty, Chief Public Defender, and Kelli S.
Jelinger, Assistant Public Defender, for appellant.
*****
JENSEN, J.
{¶ 1} Following a bench trial, defendant-appellant, Jodi Sherman, appeals the
February 28, 2014 judgment of the Toledo Municipal Court sentencing her with respect
to her conviction of cruelty to a companion animal. For the following reasons, we
reverse the trial court’s judgment.
I. Background
{¶ 2} The facts of this case were elicited at trial through the testimony of Joanne
Wilson, an employee of Oregon Animal Hospital; Dr. Alan Kao, a veterinarian at Oregon
Animal Hospital; Nancy Schilb, an animal cruelty investigator with the Toledo Area
Humane Society; and Irvin Clark, an acquaintance of Sherman. Their testimony
established that in late October of 2013, possibly around October 27, 2013, Jodi Sherman
discovered that a stray cat that often roamed her neighborhood was hiding in a crawl
space under a house. The cat was injured. Sherman took the cat in, cleaned its wounds
with hydrogen peroxide, and bandaged and dressed the wounds. It is not alleged that
Sherman caused the cat’s injuries.
{¶ 3} On October 30, 2013, Sherman contacted her veterinarian’s office to make
an appointment for the cat. Wilson took Sherman’s call and Sherman described to
Wilson that the cat’s leg “was hanging weird” and was possibly broken. Wilson advised
Sherman that she should have the cat treated right away, but told her that she could not
bring the cat to Oregon Animal Hospital unless she was able to make a payment toward a
balance she owed on her account. Sherman was unable to make payment that day, so
Wilson advised her that it was cruel to delay in seeking treatment and that she should call
the humane society. Sherman did not want to do this because she feared that the cat
would be killed.
2.
{¶ 4} On November 1, 2013—incidentally, the day Sherman received her monthly
social security payment—Sherman brought the animal to Oregon Animal Hospital
wrapped in a blanket. Dr. Kao treated the cat and found that the cat had suffered an open
fracture of its left rear leg. The bone was dry, indicating that the fracture was several
days old, and the bone repeatedly punctured the cat’s skin. Its left elbow was severely
displaced and it had a pus-filled lesion on its arm. The cat was given pain medications
and antibiotics. The severity of its leg fracture required amputation and Dr. Kao had
great difficulty in replacing its elbow.
{¶ 5} The veterinarian’s office contacted the humane society and Schilb
investigated the incident. Sherman was charged with violating R.C. 959.131(B). The
case proceeded to a bench trial on February 20, 2014. The court found Sherman guilty.
Although the court sympathized with Sherman and recognized that her intentions were
good, it explained:
I think the testimony is clear that this was a stray, and I believe that
it was a stray. Okay. And I believe you acted out of the goodness of your
heart when you attempted to care for this animal. However, under the code,
when you begin to harbor an animal by giving it food and shelter, it
becomes—you become an owner or harborer and you are subject to all the
rules and regulations with respect to animal ownership at that point.
So I do find, at the point you began to care for this animal, you did
begin to harbor it, which puts you on the hook for its care. * * *
3.
I do believe that the State has met its burden at the point where you
did not seek attention on October 3rd [sic] for this animal * * *.
{¶ 6} The court referred the matter for a presentence investigation report. On
February 28, 2014, the court sentenced Sherman to 180 days at CCNO and a $1,000 fine,
both of which were suspended. She was placed on probation for five years, was ordered
to pay $788 in restitution to Dr. Kao, and was prohibited from possessing, owning, or
harboring any animal for the term of her probation. It is from this order that Sherman
appeals. She assigns the following errors for our review:
First Assignment of Error
The State failed to prove that the Defendant violated the law of
prohibitions against Companion Animal Torture and the Court as
proscribed in Ohio Revised Code Section 959.131(B) and therefore erred in
convicting the defendant [sic].
Second Assignment of Error
Counsel failed to object to Hearsay testimony that was used as the
basis for charging the defendant with the purpose to prove their case: two
part test of hearsay: [sic][.]
Third Assignment of Error
The Court erred in ordering that there be no animals in the
appellant’s home as a condition of probation.
4.
Fourth Assignment of Error
The Court erred in ordering the Defendant to pay restitution to the
Oregon Animal Hospital.
II. Law and Analysis
{¶ 7} In her first assignment of error, Sherman argues that although she was
charged under R.C. 959.131(B), in finding Sherman guilty, the court cited the language
of section (C)(2) of the statute. She also urges that R.C. 959.131(B) criminalizes the
commission of an act, but not an omission to act. Because it is not alleged that Sherman
caused the cat’s injuries—only that she failed to seek immediate treatment for the cat—
she cannot be convicted of the crime with which she was charged.
{¶ 8} In essence, Sherman argues that the evidence was insufficient to support her
conviction under R.C. 959.131(B). Sufficiency of the evidence is a question of law.
State v. Rodich, 6th Dist. Sandusky No. S-13-043, 2014-Ohio-4399, ¶ 8. It is a
determination of the adequacy of the evidence which requires us to review “whether,
after viewing the evidence in a light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven beyond a reasonable
doubt.” (Internal quotations and citations omitted.) Id.
{¶ 9} The statute under which Sherman was charged, R.C. 959.131(B), provides
that “No person shall knowingly torture, torment, needlessly mutilate or maim, cruelly
beat, poison, needlessly kill, or commit an act of cruelty against a companion animal.”
Provision (A) of the statute refers to R.C. 1717.01 for the definition of “cruelty,”
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“torment,” and “torture.” R.C. 1717.01(B) defines “cruelty,” “torment,” and “torture” as
follows:
“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. (Emphasis added.)
{¶ 10} The city argues that although Sherman could have been charged and
convicted under provision (C)(2), incorporation of the R.C. 1717.01(B) definition of
“cruelty,” “torment,” and “torture” into the statute means that R.C. 959.131(B) can be
violated by a mere omission. We reject the city’s argument.
{¶ 11} It is generally recognized that before one can be criminally liable for an
omission, he or she must owe a duty to act. State v. McNeeley, 48 Ohio App. 3d 73, 77,
548 N.E.2d 961 (8th Dist.1988), citing R.C. 2901.21(A). R.C. 959.131(B) does not
specifically criminalize omissions to act and it applies to all persons. It does not define
when one owes a duty to act so as to render him or her liable for an omission.
{¶ 12} R.C. 959.131(C), on the other hand, specifically prohibits omissions of care
by custodians or caretakers of companion animals. It provides:
No person who confines or who is the custodian or caretaker of a
companion animal shall negligently do any of the following:
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(1) Commit any act by which unnecessary or unjustifiable pain or
suffering is caused, permitted, or allowed to continue, when there is a
reasonable remedy or relief, against the companion animal;
(2) Omit any act of care by which unnecessary or unjustifiable pain
or suffering is caused, permitted, or allowed to continue, when there is a
reasonable remedy or relief, against the companion animal;
(3) Commit any act of neglect by which unnecessary or unjustifiable
pain or suffering is caused, permitted, or allowed to continue, when there is
a reasonable remedy or relief, against the companion animal;
(4) Needlessly kill the companion animal;
(5) Deprive the companion animal of necessary sustenance, confine
the companion animal without supplying it during the confinement with
sufficient quantities of good, wholesome food and water, or impound or
confine the companion animal without affording it, during the
impoundment or confinement, with access to shelter from heat, cold, wind,
rain, snow, or excessive direct sunlight, if it can reasonably be expected
that the companion animal would become sick or suffer in any other way as
a result of or due to the deprivation, confinement, or impoundment or
confinement in any of those specified manners.
{¶ 13} Until it was amended effective September 13, 2013, R.C. 959.131(C)(1)
simply provided that “No person who confines or who is the custodian or caretaker of a
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companion animal shall negligently * * * torture, torment, needlessly mutilate or maim,
cruelly beat, poison, needlessly kill, or commit an act of cruelty against the companion
animal”—language similar to (B). It now specifically prohibits omissions, as well as
commissions of neglect. We believe that if an omission could already serve as a basis for
liability under the definition of R.C. 1717.01(B), it would have been unnecessary for the
legislature to specify in (C) that omissions of care are prohibited.
{¶ 14} In State v. Fry, 2d Dist. Clark No. 2006-CA-14, 2006-Ohio-4157, the
Second District interpreted R.C. 959.131(C)(1) as it previously existed and held that
despite the incorporation of R.C. 1717.01(B) into the statute, construing R.C.
959.131(C)(1) strictly against the state, only acts of cruelty were punishable—not
omissions to act. Following the 2013 amendments, (C)(2) now explicitly encompasses
omissions. Our view is that if the legislature had intended for the same to be true with
respect to (B), it could have amended the language in that provision to mirror the
language in (C). Because it did not, we are left to conclude that the legislature did not
intend for (B) to criminalize omissions of care.
{¶ 15} In sum, because the legislature did not define when one owes a duty to act
and did not specify that R.C. 959.131(B) prohibits omissions of care—as it recently did
in (C)(2)—Sherman was improperly charged and convicted under (B) for failing to seek
immediate care for the cat. We, therefore, find Sherman’s first assignment of error well-
taken. Because of our disposition as to Sherman’s first assignment of error, we need not
address her remaining assignments of error.
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III. Conclusion
{¶ 16} We find Sherman’s first assignment of error well-taken and reverse and
vacate the judgment of conviction and the February 28, 2014 sentencing judgment of the
Toledo Municipal Court. Pursuant to App.R. 24, the city is ordered to pay the costs of
this appeal.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________
JUDGE
James D. Jensen, J.
CONCUR. _______________________________
JUDGE
Stephen A. Yarbrough, P.J.,
DISSENTS.
YARBROUGH, P.J.
{¶ 17} I would agree with the city’s argument and uphold appellant’s conviction
under R.C. 959.131(B). R.C. 959.131(B) specifically incorporates the definitions of
cruelty, torment, and torture into its prohibitions. R.C. 959.131(A)(2) (“‘Cruelty,’
‘torment,’ and ‘torture’ have the same meanings as in section 1717.01 of the Revised
Code.”). Those definitions clearly state a failure to act, when a reasonable alternative is
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available, constitutes cruelty, torment, and torture. R.C. 1717.01(B) (“‘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
reasonable remedy or relief”). This cannot be overlooked by this court when there is
little ambiguity in the language enacted by the legislature.
{¶ 18} The majority is correct in that one must have a duty to act before they can
be punished for an omission. State v. McNeeley, 48 Ohio App. 3d 73, 77, 548 N.E.2d 961
(8th Dist.1988). Appellant took on such a duty when she opened her home to the stray
cat. She began to care for the animal and by doing so took on the duty of ensuring the
animal was not neglected. Appellant felt the weight of this duty when she was prepared
to pay the necessary veterinarian bills out of her own pocket. The animal was not a
random animal found on the side of the road, but rather a stray that was taken in and
cared for by appellant. If appellant had merely left the animal where it laid injured, she
would not have taken on the duty to take care of the animal to such a reasonable extent.
{¶ 19} The majority finds R.C. 959.131(B) fails to preclude omissions, despite its
incorporation of the definitions of cruelty, torment, and torture, because the section
applies to “all persons.” R.C. 959.131(B). This is in stark contrast to R.C. 959.131(C)
which specifically applies to “custodians or caretakers.” R.C. 959.131(C). Though R.C.
959.131(C) gives more guidance on who can be charged with animal cruelty under the
section, appellant’s actions were still covered under R.C. 959.131(B). She still failed to
take the animal to the vet or call the Humane Society which caused the cat to suffer for a
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longer period of time. There is no reason to differentiate between the two sections just
because one of the sections is more specific than the other or the two sections cover the
same actions.
{¶ 20} If one must look outside the section at issue here and look to the relatively
recent acts by the legislature as the majority does, one comes to the same conclusion.
The majority relies heavily on the fact R.C. 959.131(C) was revised in 2013 to
specifically include omissions in certain situations. The legislature, at the same time,
decided to keep R.C. 959.131(B) the same without making any changes. Thus, they had
an opportunity to change R.C. 959.131(B) to specifically exclude omissions or to change
the incorporation of the definitions of cruelty, torment, and torture, but failed to do so.
The majority interprets this decision to mean the legislature did not intend for R.C.
959.131(B) to include omissions. Another interpretation of this decision could mean the
legislature wanted to change the language of R.C. 959.131(C) to be more specific. This
decision has no effect on R.C. 959.131(B) or its inclusion of omissions.
{¶ 21} In sum, appellant undertook a duty of care towards an animal and then
allowed the animal to continue to suffer with major injuries before seeking help. By a
simple phone call and at no expense to appellant, she could have stopped the suffering of
the animal. I would affirm the conviction.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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