State v. Powell

[Cite as State v. Powell, 2015-Ohio-4459.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 14AP-1054
v. : (M.C. No. 14ERB 072191)
Catrice S. Powell, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on October 27, 2015
Richard C. Pfeiffer, Jr., City Attorney, and Melanie R. Tobias,
for appellee.
Brehm & Associates, and Eric W. Brehm, for appellant.
APPEAL from the Franklin County Municipal Court
SADLER, J.
{¶ 1} Defendant-appellant, Catrice S. Powell, appeals from a judgment of the
Franklin County Municipal Court finding her guilty of violating R.C. 959.131(C)(2). For
the reasons that follow, the judgment of the trial court is affirmed.
I. BACKGROUND
{¶ 2} Appellant is charged with negligently omitting care for a companion animal
under R.C. 959.131(C)(2),1 a misdemeanor of the second degree, arising from the July 13,
2014 death of a dog chained to a kennel in the yard behind appellant's apartment. On
November 7, 2014, appellant signed a waiver of trial by jury, and the case proceeded to
trial before the court on November 17, 2014. Prior to commencing the trial, the city
1The complaint originally stated R.C. 959.131(C)(1) but was amended to reflect the written description of the
charge.
No. 14AP-1054 2
moved to dismiss an accompanying rabies vaccination case. The city then produced the
following witnesses.
{¶ 3} Doctor Audra Hanthorn, a veterinarian for the Capital Area Humane
Society, testified that she examined the deceased dog2 and determined, in her medical
opinion, that the dog perished from "parvo." (Tr. 11.) Dr. Hanthorn based her
determination that parvo caused the dog's death on her prior experience observing dogs
with parvo, the breed's high susceptibility to parvo, the dog's pale gums, the presence of
hemorrhagic and bloody diarrhea, and a positive indication for parvo on a "parvo snap
test" preliminary screening, which she described as "very reliable." (Tr. 17, 21.)
{¶ 4} According to Dr. Hanthorn, parvo is a virus that attacks a dog's rapidly
dividing cells, which causes the lining of the small intestines to shed completely and can
result in the dog becoming septic through a "massive" bacterial infection. (Tr. 11.)
Simultaneously, parvo causes a vast reduction in white blood cells to fight the infection.
As a result, the fatality rate for a dog not vaccinated or otherwise treated is "upwards of
* * * 90 percent." (Tr. 12.) The parvo vaccine is nearly 100 percent effective, reducing the
mortality rate of properly vaccinated dogs exposed to parvo to nearly zero. Dr. Hanthorn
testified that the symptoms of parvo, in general order of appearance, include lethargy,
refusal to eat and drink, vomiting, weight loss, regular then bloody diarrhea, lateral
recumbency (laying on its side), and weakness to the point of inability to move. In the
vast majority of cases, a lag time exists between the first signs of vomiting and bloody
diarrhea, with the final stages of parvo manifesting over "at least seven [days], longer
sometimes." (Tr. 13.) In Dr. Hanthorn's opinion, dogs in the later stage of parvo,
experiencing dehydration, hemorrhagic diarrhea, and sepsis, "are absolutely suffering
[and] are in a great deal of pain and discomfort." (Tr. 22-23.) On cross-examination, Dr.
Hanthorn confirmed that parvo can progress differently, depending on the dog, and that
she did not know how long this particular dog had been afflicted or suffering. She also
confirmed that she did not observe signs of physical abuse or trauma.
{¶ 5} Ryan Evans of the Columbus Division of Police testified that he was
dispatched to appellant's house after receiving a call from a neighbor concerned about the
2 Unfortunately, the record does not identify the dog by name.
No. 14AP-1054 3
well-being of a dog in the yard behind appellant's apartment. When he arrived, through
the rain Evans observed a dog in a crate-type kennel located near the foot of the back
stairs of an apartment. The kennel had an "overwhelming," "rancid" smell of wet dog and
feces, which he rated as a "seven" on a scale of ten. (Tr. 34, 42.) Evans did not observe
food or water for the dog outside. The dog was laying on its side with its eyes and mouth
open and tongue hanging out; Evans thought the dog was dead. Upon a closer look,
Evans noticed the dog was breathing very slowly and flinched, but did not get up, when
Evans made contact with the dog's face.
{¶ 6} Evans knocked on the back door of the apartment, and appellant answered.
He asked appellant if the dog behind her apartment belonged to her, and she answered
yes. According to Evans, appellant claimed that she did not realize the dog was sick and
that the last time she checked on it, it was fine. When Evans showed her the dog, she
responded, "[t]hat's weird," and said she did not understand what happened. (Tr. 36.)
Evans stated that during this time, appellant was "[v]ery unapologetic and very
unconcerned about the dog. [S]he did not leave her stoop to come down and check on the
dog when I showed it to her." (Tr. 37.) Appellant mentioned to Evans that the dog had
run away for a couple of days and could have gotten sick during that time, and told Evans
that the dog's food and water were located inside. Evans returned to his cruiser and
contacted animal control. Appellant returned into her apartment.
{¶ 7} After about 45 minutes, Devon Mann, a deputy warden at Franklin County
Animal Care and Control, arrived and accompanied Evans to the back yard to view the
dog. Evans observed the animal and believed it had died. They knocked on appellant's
back door and told her the dog passed away, to which appellant responded "okay" and
again did not leave her stoop. (Tr. 40.) Appellant informed Evans that a friend gave her
the dog, it had just returned after being gone for five days, and she did not feel it was
necessary to get the dog medicated at that time. She told Evans that she knew she had to
take the dog to the veterinarian generally, but had not had time to go. On cross-
examination, Evans agreed he was upset to see the dog in those conditions and did not
like the way appellant reacted to the situation.
{¶ 8} Mann testified that he responded to a dispatch to appellant's apartment
regarding an animal in distress. According to Mann, when he and Evans approached the
No. 14AP-1054 4
dog, it was laying on its side inside of the kennel, attached to a "tie-out" which left it little
room to move around. (Tr. 59.) Mann saw the dog exhale, which he believed to be its last
breath. At that point, Mann checked the dog and confirmed it had died. Although it was
pouring rain at that point, Mann observed a significant amount of diarrhea and vomit in
the kennel.
{¶ 9} Mann testified that he and Evans spoke with appellant, and he continued
speaking with her after Evans left. In Mann's opinion, appellant did not seem very
concerned the dog had died. She told Mann that she got the dog on Craig's List and did
not know how it got sick, but it had recently showed up after running away for five days.
"[A]t that point it was sick" and vomiting, but she "didn't think anything of it because it
had gotten sick before and it had just gotten better on its own." (Tr. 56, 57.) Appellant
did not check on the dog in Mann's presence. She agreed to sign an "Owner Surrender
Authorization Form," allowing the dog's body to be collected by Mann. (Exhibit C, 1.) The
next day, the Capital Area Humane Society retrieved the dog's body from Franklin County
Animal Care and Control. On cross-examination, Mann confirmed that he had no chance
to observe the dog prior to the moment he arrived, that he did not enter the apartment to
see if appellant otherwise provided the dog food, water, or an interior crate, and also
agreed that he was a dog lover and had empathy for the animal.
{¶ 10} Aimee Johnson, a humane agent in training and a dispatcher in cruelty
investigations at the Capital Area Humane Society, testified that she accompanied another
agent to appellant's apartment on July 17, 2014 to follow-up on a referral from animal
control regarding the deceased dog. Johnson testified that appellant said a friend gave
her the dog and advised her it was up to date on all of its shots. Appellant told Johnson
that the dog was loose for about four days but returned to her house on the morning of the
day it died. Appellant told Johnson that in the morning the dog appeared fine and was
eating and drinking, but in the evening the dog laid down a lot and vomited. Appellant
claimed that she had tried to call someone regarding the dog but did not get a chance to
because the neighbors already called authorities.
{¶ 11} After admitting as evidence the owner surrender form and several
photographs of the dog corpse in its kennel and at the humane society, the state rested its
No. 14AP-1054 5
case. Appellant moved for a judgment of acquittal under Crim.R. 29(A), which the court
overruled. The defense then rested its case.
{¶ 12} The court found appellant guilty of R.C. 959.131(C)(2) and imposed a
sentence of 90 days incarceration with 90 days suspended, a $100 financial sanction, and
five years of probation with conditions of not owning or residing with animals and
random inspections by animal control and the humane society.
II. ASSIGNMENTS OF ERROR
{¶ 13} Appellant submits two assignments of error for our review:
1. THE TRIAL COURT DID ERR BY ALLOWING THE
STATE TO ADMIT EVIDENCE OF THE DEFENDANT'S
PRIOR BAD ACTS.
2. THE TRIAL COURT DID ERR WHEN IT ENTERED
JUDGMENT AGAINST THE DEFENDANT WHEN THE
EVIDENCE WAS INSUFFICIENT TO SUSTAIN A
CONVICTION AND WAS NOT SUPPORTED BY THE
MANIFEST WEIGHT OF THE EVIDENCE.
III. DISCUSSION
A. First Assignment of Error
{¶ 14} In her first assignment of error, appellant contends that the trial court erred
in permitting the prosecution, over her objection, to present "other acts" evidence under
Evid.R. 404(B) through Mann's testimony that appellant did not license or vaccinate the
dog for rabies. As such, appellant asks us to vacate the judgment of the trial court and
remand the case for a new trial.
{¶ 15} "[T]rial court decisions regarding the admissibility of other-acts evidence
under Evid.R. 404(B) are evidentiary determinations that rest within the sound discretion
of the trial court. Appeals of such decisions are considered by an appellate court under an
abuse-of-discretion standard of review." State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-
2407, ¶ 22. " 'Abuse of discretion' has been described as including a ruling that lacks a
'sound reasoning process.' " Id. at ¶ 14, quoting AAAA Ents., Inc. v. River Place
Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). "A review under
the abuse-of-discretion standard is a deferential review. It is not sufficient for an
appellate court to determine that a trial court abused its discretion simply because the
No. 14AP-1054 6
appellate court might not have reached the same conclusion or is, itself, less persuaded by
the trial court's reasoning process than by the countervailing arguments." Id.{¶ 16} "As a general rule, evidence of previous or subsequent criminal acts, wholly
independent of the criminal offense for which a defendant is on trial, is inadmissible."
State v. Thompson, 66 Ohio St.2d 496, 497 (1981). In line with this general rule, Evid.R.
404(B) states: "[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." Still, the trial
court has "broad discretion" to admit other acts evidence for "other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident." Evid.R. 404(B); State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-
5695, ¶ 2, 17.
{¶ 17} The Supreme Court in Ohio in Williams set out a three-step analysis for the
trial court to consider in admitting "other acts" evidence: (1) whether the other acts
evidence is relevant under Evid.R. 401; (2) whether the other acts evidence is presented to
prove a permissible purpose, such as those stated in Evid.R. 404(B), rather than to prove
the character of the accused in order to show activity in conformity therewith, and
(3) whether the probative value of the other acts evidence is substantially outweighed by
the danger of unfair prejudice under Evid.R. 403. Id. at ¶ 19-20.
{¶ 18} In this case, appellee does not contest that the trial court admitted other
acts evidence and does not advance an argument regarding its permissible purpose.
Rather, appellee argues that appellant was not prejudiced by the prior bad acts testimony
and, therefore, reversal is inappropriate here. For the following reasons, we agree with
appellee.
{¶ 19} "In determining whether to grant a new trial as a result of the erroneous
admission of evidence under Evid.R. 404(B), an appellate court must consider both the
impact of the offending evidence on the verdict and the strength of the remaining
evidence after the tainted evidence is removed from the record." State v. Morris, 141 Ohio
St.3d 399, 2014-Ohio-5052, syllabus. See also Crim.R. 52(A); R.C. 2945.83. The court
summarized the Morris analysis in the subsequent decision of State v. Harris, 142 Ohio
St.3d 211, 2015-Ohio-166, ¶ 37:
No. 14AP-1054 7
[T]he following analysis was established to guide appellate
courts in determining whether an error has affected the
substantial rights of a defendant, thereby requiring a new
trial. First, it must be determined whether the defendant was
prejudiced by the error, i.e., whether the error had an impact
on the verdict. Id. at ¶ 25 and 27. Second, it must be
determined whether the error was not harmless beyond a
reasonable doubt. Id. at ¶ 28. Lastly, once the prejudicial
evidence is excised, the remaining evidence is weighed to
determine whether it establishes the defendant's guilt beyond
a reasonable doubt. Id. at ¶ 29, 33.
{¶ 20} In examining the record to determine this issue, we may give weight to the
fact that the error occurred in a bench trial, rather than a jury trial. State v. Johnson, 5th
Dist. No. 2014CA00189, 2015-Ohio-3113, ¶ 91. "Indeed, a judge is presumed to consider
only the relevant, material and competent evidence in arriving at a judgment, unless the
contrary affirmatively appears from the record." Id., citing State v. White, 15 Ohio St.2d
146, 151 (1968). See also State v. Williams, 6th Dist. No. L-11-1084, 2013-Ohio-726, ¶ 29-
30, appeal not allowed, 135 Ohio St.3d 1461, 2013-Ohio-2285.
{¶ 21} Here, appellant points to the testimony of Mann which, in describing his
interaction with appellant, states "I asked [appellant] if the dog had a current dog license
or current rabies vaccination, it did not," and later continues "[w]e asked if she had ever
taken the dog to a veterinarian or if it had ever had any vaccinations. She said no. We
asked her if she was aware that the dog was supposed to have a dog license by law as well
as rabies vaccination, she said no." (Tr. 56-57.) Appellant objected to the testimony
regarding the dog license and rabies vaccination as evidence of other bad acts relating to
dismissed issues irrelevant to the case at hand. Appellee responded that the evidence was
not being offered to show bad acts or prove appellant had issues with vaccination or
registration but was "just telling the conversation that occurred." (Tr. 57.) The court
overruled both objections, stating "I see what you're saying, * * * if this were in front of a
jury, I would agree [with appellant], but I'm giving it the appropriate weight." (Tr. 57.)
{¶ 22} After this exchange, no affirmative indication shows that the trial court
improperly considered evidence of the lack of registering or vaccinating the dog for rabies
in arriving at its judgment in this case. This evidence does not resurface again, either in
appellee's closing arguments or in the trial court's reasoning in finding appellant guilty.
No. 14AP-1054 8
The trial court judge focused instead on the credibility and weight of the officers and
humane society agents' observations and appellant's demeanor, as described by the
officers and agents. On this record, the trial court is presumed to not have considered the
evidence in arriving at a judgment. Therefore, we conclude that the error did not impact
the fairness of the bench trial or verdict, and appellant was not prejudiced.
{¶ 23} Furthermore, the error was harmless beyond a reasonable doubt.
Considering the facts as discussed in the second assignment of error, once the tainted
evidence is excised, overwhelming evidence of appellant's guilt supports the conviction
and establishes appellant's guilt beyond a reasonable doubt.
{¶ 24} Accordingly, appellant's first assignment of error is overruled.
B. Second Assignment of Error
{¶ 25} In her second assignment of error, appellant contends that the state
presented insufficient evidence to sustain a conviction under R.C. 959.131(C)(2), and the
conviction was not supported by the manifest weight of the evidence. For the following
reasons, we disagree.
{¶ 26} Sufficiency of the evidence is a legal standard that tests whether the
evidence is legally adequate to support a verdict. State v. Thompkins, 78 Ohio St.3d 380,
386 (1997). Whether the evidence is legally sufficient to support a verdict is a question of
law, not fact. Id. In determining whether the evidence is legally sufficient to support a
conviction, " '[t]he relevant inquiry is 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.' " State v. Robinson, 124 Ohio
St.3d 76, 2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259 (1991),
paragraph two of the syllabus. A verdict will not be disturbed unless, after viewing the
evidence in a light most favorable to the prosecution, it is apparent that reasonable minds
could not reach the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St.3d
460, 484 (2001).
{¶ 27} In a sufficiency of the evidence inquiry, appellate courts do not assess
whether the prosecution's evidence is to be believed but whether, if believed, the evidence
supports the conviction. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79-
80 (evaluation of witness credibility not proper on review for sufficiency of evidence);
No. 14AP-1054 9
State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that "in a
sufficiency of the evidence review, an appellate court does not engage in a determination
of witness credibility; rather, it essentially assumes the state's witnesses testified
truthfully and determines if that testimony satisfies each element of the crime"). Further,
"the testimony of one witness, if believed by the jury, is enough to support a conviction."
State v. Strong, 10th Dist. No. 09AP-874, 2011-Ohio-1024, ¶ 42.
{¶ 28} "Even though supported by sufficient evidence, a conviction may still be
reversed as being against the manifest weight of the evidence." State v. McCombs, 10th
Dist. No. 15AP-245, 2015-Ohio-3848, ¶ 3, citing Thompkins at 387. "While sufficiency of
the evidence is a test of adequacy regarding whether the evidence is legally sufficient to
support the verdict as a matter of law, the criminal manifest weight of the evidence
standard addresses the evidence's effect of inducing belief." State v. Cassell, 10th Dist.
No. 08AP-1093, 2010-Ohio-1881, ¶ 38.
{¶ 29} When presented with a manifest-weight challenge, an appellate court may
not merely substitute its view for that of the trier of fact but must review the entire record,
weigh the evidence and all reasonable inferences, consider the credibility of witnesses,
and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. Thompkins at 387, citing State v. Martin, 20 Ohio
App.3d 172, 175 (1st Dist.1983). An appellate court should reserve reversal of a conviction
as being against the manifest weight of the evidence for only the most " 'exceptional case
in which the evidence weighs heavily against the conviction.' " Id., quoting Martin at 175.
{¶ 30} In order to find appellant guilty of negligently omitting care for a
companion animal, the state had to prove beyond a reasonable doubt that she confined or
was the custodian or caretaker of a companion animal that negligently omitted "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." R.C. 959.131(C)(2). Appellant contends that the state "failed to prove there was
a reasonable remedy or relief for a parvo virus infection" and, as such, her conviction was
based on insufficient evidence. (Appellant's Brief, 12.)
No. 14AP-1054 10
{¶ 31} However, under R.C. 959.131(C)(2), the state was not required to prove a
reasonable remedy or relief for the parvo virus infection itself. Rather, the state was
required to prove appellant did not provide care which would have at least provided
relief to the dog, and the failure to do so caused, permitted, or allowed unnecessary or
unjustifiable pain or suffering to continue. The statute does not limit the care at issue to
veterinary or medical care but expressly encompasses "any" act of care to provide a
reasonable remedy or relief to the dog. The statute also is also not specific to care for
dogs that are sick but generally addresses inaction that causes, permits, or allows
unnecessary or unjustifiable pain or suffering, in general, to continue.
{¶ 32} To these points, the state presented evidence that the dog suffered from
parvo virus, a nearly always fatal disease which causes a dog to suffer in its final stages
and generally manifests symptoms over the course of at least seven days. Further, the
state also showed that the dog was outside in July and in the pouring rain, while
confined on a short leash without ready access to food and water and laying in a
significant amount of diarrhea and vomit. The record shows that the state of the dog
and its environment was readily apparent by sight and smell by the officer and deputy as
they entered the yard and was apparently readily apparent to a neighbor who called for
help. Viewing these facts, even if a remedy for parvo was not feasible for the dog, at the
very least, appellant could have provided the dog relief from suffering in the wretched
environmental state it was found in, and her failure to do so caused the dog unnecessary
and unjustifiable suffering. Therefore, reviewing the record, we find the state met its
burden, and the evidence in the record is sufficient to convict appellant under R.C.
959.131(C)(2).
{¶ 33} Appellant does not articulate a separate argument regarding the manifest
weight of the evidence but appears to base the manifest weight challenge on the
insufficiency of evidence as stated above. As we have found the evidence presented by the
state to be sufficient to support the conviction, appellant's argument fails. Moreover, our
own review of the record does not reveal that this is the exceptional case where the trial
court judge, as trier of fact, clearly lost his way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered.
{¶ 34} Accordingly, appellant's second assignment of error is overruled.
No. 14AP-1054 11
IV. CONCLUSION
{¶ 35} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Municipal Court.
Judgment affirmed.
KLATT and BRUNNER, JJ., concur.
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