State v. Caroline's Kids Pet Rescue

[Cite as State v. Caroline's Kids Pet Rescue, 2023-Ohio-761.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NOS. 2022-L-024
2022-L-025
Plaintiff-Appellee, 2022-L-026
2022-L-027
- vs - 2022-L-028
2022-L-029
CAROLINE'S KIDS
PET RESCUE,
Criminal Appeals from the
Defendant-Appellant. Painesville Municipal Court
Trial Court Nos. 2021 CRB 00775 A
2021 CRB 00775 B
2021 CRB 00775 C
2021 CRB 00775 D
2021 CRB 00775 E
2021 CRB 00775 F
OPINION
Decided: March 13, 2023
Judgment: Affirmed
J. Jeffrey Holland, Holland & Muirden, 1343 Sharon-Copley Road, P.O. Box 345, Sharon
Center, OH 44274 (For Plaintiff-Appellee).
Robert N. Farinacci, 65 North Lake Street, Madison, OH 44057 (For Defendant-
Appellant).
EUGENE A. LUCCI, J.
{¶1} Appellant, Caroline’s Kids Pet Rescue (“Caroline’s”), appeals its sentence,
following its plea of no contest and the trial court’s finding of guilt, on six counts of
companion animal cruelty. We affirm.
{¶2} Caroline’s is a non-profit corporation that operated an animal shelter in Lake
County, Ohio. In 2020, Caroline’s’ board ejected its director, Jacqueline Childers, from
the organization. Shortly thereafter, the Lake Humane Society (“the LHS”) searched
Caroline’s’ facility, locating 41 deceased cats and seizing 157 living cats.
{¶3} In 2021, complaints were filed in the trial court charging Caroline’s with five
counts of cruelty against companion animals in violation of R.C. 959.131(D)(1) and one
count of cruelty against companion animals in violation of R.C. 959.131(D)(2). Caroline’s
initially pleaded not guilty. On December 15, 2021, Caroline’s moved the trial court to
appoint a commission pursuant to R.C. 2945.50 to take Childers’ deposition. In support
of its motion, Caroline’s maintained that, when Childers left the corporation, she “took with
her all of the documents and information needed for the efficient operation of the
Company and necessary for any meaningful defense in these cases.” The state
responded in opposition to the motion, and the trial court summarily denied the motion.
On December 22, 2021, Caroline’s filed a motion to reconsider its request to take
Childers’ deposition. Thereafter, the trial court issued a judgment entry denying the
motion to reconsider.
{¶4} Subsequently, Caroline’s changed its plea to no contest. The trial court
found Caroline’s guilty and held a hearing on reimbursement and sentencing. The court
then sentenced Caroline’s to 60 months’ probation, imposed a $24,000.00 fine, ordered
it to pay reimbursement in the amount of $31,686.63 to the LHS, and permanently banned
Caroline’s from owning, possessing, or caring for companion animals.
{¶5} Caroline’s assigns three errors. We begin our review with Caroline’s third
assigned error and consolidate our review of Caroline’s first and second assigned errors
for ease of discussion.
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{¶6} In its third assigned error, Caroline’s maintains:
The Trial Court erred to the prejudice of the Appellant when it
foreclosed Appellant’s ability to seek and obtain the
necessary information and documentation to mount a
meaningful defense and defend against the alleged offenses
for which it was charged thereby forcing a plea to those
offenses as charged.
{¶7} Caroline’s argues that the trial court erred in denying its motion under R.C.
2945.50 to appoint a commission to take Childers’ deposition.
{¶8} R.C. 2945.50 provides for depositions in criminal cases, stating:
At any time after an issue of fact is joined upon an indictment,
information, or an affidavit, the prosecution or the defendant
may apply in writing to the court in which such indictment,
information, or affidavit is pending for a commission to take
the depositions of any witness. The court or a judge thereof
may grant such commission and make an order stating in
what manner and for what length of time notice shall be given
to the prosecution or to the defendant, before such witness
shall be examined.
The Supreme Court of Ohio has held that a ruling on a request made pursuant to R.C.
2945.50 “rests within the sound discretion of the court, and, unless a plain abuse of that
discretion is shown, no prejudicial error occurs.” State v. Hill, 12 Ohio St.2d 88, 232
N.E.2d 394 (1967), paragraph one of the syllabus. “‘The term “abuse of discretion” is one
of art, connoting judgment exercised by a court which neither comports with reason, nor
the record.’” State v. Marcellino, 2019-Ohio-4837, 149 N.E.3d 927, ¶ 23 (11th Dist.),
quoting State v. Flanagan, 11th Dist. Ashtabula No. 2015-A-0020, 2015-Ohio-5528, ¶ 42,
citing State v. Ferranto, 112 Ohio St. 667, 676-678, 148 N.E. 362 (1925).
{¶9} Although not referenced by the parties here, Crim.R. 15(A) also addresses
depositions in criminal cases, providing in part:
If it appears probable that a prospective witness will be unable
to attend or will be prevented from attending a trial or hearing,
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and if it further appears that his testimony is material and that
it is necessary to take his deposition in order to prevent a
failure of justice, the court at any time after the filing of an
indictment, information, or complaint shall upon motion of the
defense attorney or the prosecuting attorney and notice to all
the parties, order that his testimony be taken by deposition
and that any designated books, papers, documents or
tangible objects, not privileged, be produced at the same time
and place.
{¶10} At least one of our sister courts has determined that R.C. 2945.50 “was
superseded by the criminal rules in 1973[.]” State v. Pastor, 12th Dist. Butler No. CA84-
05-056, 1984 WL 3681, *3 (Dec. 31, 1984). Criminal Rules may displace statutory
provisions pursuant to “Article IV, Section 5(B) [of the Ohio Constitution, which] provides:
‘The supreme court shall prescribe rules governing practice and procedure in all courts
of the state, which rules shall not abridge, enlarge, or modify any substantive right. * * *
All laws in conflict with such rules shall be of no further force or effect after such rules
have taken effect.’” Ferguson v. State, 151 Ohio St.3d 265, 2017-Ohio-7844, 87 N.E.3d
1250, ¶ 20. Where a procedural rule and a statutory provision conflict, “‘the rule will
control the statute on matters of procedure and the statute will control the rule on matters
of substantive law.’” Ferguson at ¶ 20, quoting Boyer v. Boyer, 46 Ohio St.2d 83, 86, 346
N.E.2d 286 (1976).
{¶11} Here, if Crim.R. 15(A) displaces R.C. 2945.50, Caroline’s did not allege that
Childers would be unable or prevented from attending a trial or hearing, and, on that basis
alone, the motion to depose Childers was properly overruled. See Crim.R. 15(A)
(permitting a deposition in a criminal case where it appears probable that the intended
deponent “will be unable to attend or will be prevented from attending a trial or hearing”).
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{¶12} However, assuming without deciding that R.C. 2945.50 remains applicable,
in its ruling on the motion to reconsider its denial of Caroline’s’ motion, issued December
30, 2021, the trial court explained:
The Defendant asserts Jackie Childers was ejected from the
Defendant on or about September 18, 2020. The Defendant
has not satisfied the Court that this deposition is the only
means to gather the information it is seeking. Further, no civil
action was taken by the Defendant to recover the alleged
information from Childers and the Defendant continues its
operations with the existing conditions since September 18,
2020.
{¶13} Given the reasons advanced by the trial court for denying the motion, we
cannot say that it abused its discretion.
{¶14} Accordingly, Caroline’s’ third assigned error lacks merit.
{¶15} In its first and second assigned errors, Caroline’s argues:
[1.] The Trial Court erred to the prejudice of the Appellant
when it failed to determine on the record and disclose to the
Parties the standard of proof required, the quantum of proof
and evidence necessary or the definition or description of
costs it would permit thereby depriving the Appellant of both
procedural and substantive due process.
[2.] The State failed to submit competent, credible evidence
of the claimed expenses by the Lake County Humane Society
nor did it present sufficient evidence that the costs claimed
were reasonable and necessary resulting from the unlawful
acts of the Appellant such that would instill in the trier of fact
a reasonable degree of certainty as to the evidence before it.
{¶16} In its first assigned error, Caroline’s argues that the trial court violated its
due process rights by conducting a reimbursement hearing without explaining to the
parties the applicable standards of proof required to order reimbursement or instructing
the parties on the types of costs that could be recovered.
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{¶17} “Reimbursement is payment to a government agency for costs incurred as
a result of the offender’s actions.” State v. Thames, 11th Dist. Lake Nos. 2021-L-094, et
seq., 2022-Ohio-1715, ¶ 23, appeal not allowed, 167 Ohio St.3d 1512, 2022-Ohio-3135,
194 N.E.3d 381, ¶ 23, citing R.C. 2929.28(A)(3). Reimbursement is permitted in cruelty
to companion animal cases pursuant to R.C. 959.99(E)(6)(b), which provides:
A court may order a person who is convicted of or pleads
guilty to a violation of division (A) of section 959.13 or section
959.131 of the Revised Code to reimburse an impounding
agency for the reasonable and necessary costs incurred by
the agency for the care of an animal or livestock that the
agency impounded as a result of the investigation or
prosecution of the violation, provided that the costs were not
otherwise paid under section 959.132 of the Revised Code.
{¶18} Here, the trial court held a hearing regarding reimbursement. Caroline’s
maintains that its due process rights were violated because the trial court did not explain
the standards applicable to reimbursement prior to commencing the hearing.
{¶19} “‘The question of whether the due process requirements have been satisfied
presents a legal question we review de novo.’” (Citations omitted.) Puruczky v. Corsi,
2018-Ohio-1335, 110 N.E.3d 73, ¶ 17 (11th Dist.), quoting McRae v. State Med. Bd.,
2014-Ohio-667, 9 N.E.3d 398, ¶ 36 (10th Dist.).
{¶20} Caroline’s’ first assigned error alleges both procedural due process and
substantive due process violations. “A procedural-due-process challenge concerns the
adequacy of the procedures employed in a government action that deprives a person of
life, liberty, or property.” Ferguson, 2017-Ohio-7844, at ¶ 42. “‘The fundamental
requirement of due process is the opportunity to be heard “at a meaningful time and in a
meaningful manner.”’” Id. at ¶ 42, quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96
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S.Ct. 893, 47 L.Ed.2d 18 (1976), quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85
S.Ct. 1187, 14 L.Ed.2d 62 (1965).
{¶21} Here, at the hearing on reimbursement, the state presented the director of
the LHS as its witness, and she testified as to expenses incurred by the LHS for caring
for the animals. Caroline’s was permitted to, and did proceed to, cross-examine the
witness and present its own exhibits. We are unable to discern a procedural due process
violation, and we have located no authority holding that a trial court violates procedural
due process by failing “to determine on the record and disclose to the [p]arties the
standard of proof required, the quantum of proof and evidence necessary or the definition
or description of costs it would permit” or by otherwise failing to instruct counsel on the
law applicable to a proceeding.
{¶22} Insofar as Caroline’s’ challenges involve the quality and nature of the
evidence, as opposed to the procedure employed by the trial court, we discuss this issue
in conjunction with Caroline’s’ second assigned error, which we address later in this
opinion.
{¶23} With respect to substantive due process, “‘[w]hile the Due Process Clause
of the Fourteenth Amendment on its face would seem to be concerned with only the
adequacy of procedures employed when one is deprived of life, liberty, or property, the
United States Supreme Court has read it to include a substantive component that forbids
some government actions ‘regardless of the fairness of the procedures used to implement
them[.]’” Stolz v. J & B Steel Erectors, Inc., 155 Ohio St.3d 567, 2018-Ohio-5088, 122
N.E.3d 1228, ¶ 13, quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88
L.Ed.2d 662 (1986). The Supreme Court of Ohio has “also recognized substantive-due-
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process protections under the Ohio Constitution.” Stolz at ¶ 13, citing Arbino v. Johnson
& Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 48-49.
{¶24} “In a substantive-due-process challenge, ‘[t]he first (and often last) issue *
* * is the proper characterization of the individual’s asserted right.’” Stolz at ¶ 14, quoting
Blau v. Fort Thomas Pub. School Dist., 401 F.3d 381, 393 (6th Cir.2005), citing Reno v.
Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). “Government actions
that infringe upon a fundamental right are subject to strict scrutiny, while those that do not
need only be rationally related to a legitimate government interest.” Stoltz at ¶ 14, citing
State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 18.
{¶25} Here, although Caroline’s’ stated assigned error includes a substantive due
process challenge, we are unable to discern an argument in support of this contention in
Caroline’s’ brief. If an argument exists in support of a substantive due process argument,
“‘it is not this court’s duty to root it out.’” Village of S. Russell v. Upchurch, 11th Dist.
Geauga Nos. 2001-G-2395, 2001-G-2396, 2003-Ohio-2099, ¶ 10, quoting Harris v.
Nome, 9th Dist. Summit No. 21071, 2002-Ohio-6994.
{¶26} Accordingly, Caroline’s’ first assigned error lacks merit.
{¶27} In its second assigned error, Caroline’s maintains that the reimbursement
order was not supported by competent, credible evidence of the reasonable and
necessary costs incurred by the LHS for the care of the cats.
{¶28} “Ordering restitution and reimbursement is part of criminal sentencing.”
Thames, 2022-Ohio-1715, at ¶ 34, citing State v. Danison, 105 Ohio St.3d 127, 2005-
Ohio-781, 823 N.E.2d 444, ¶ 6. “‘Misdemeanor sentencing is evaluated under an abuse
of discretion standard of review.’” Thames at ¶ 34, quoting State v. Petrovich, 11th Dist.
Lake No. 2017 CR 000862, 2019-Ohio-3547, ¶ 23. “Thus, we review restitution and
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reimbursement orders in a misdemeanor case for an abuse of discretion.” Thames at ¶
34, citing State v. Dent, 11th Dist. Lake No. 2020-L-110, 2021-Ohio-2551, ¶ 15,
Marcellino, 2019-Ohio-4837, at ¶ 23, and State v. Flanagan, 11th Dist. Ashtabula No.
2015-A-0020, 2015-Ohio-5528, ¶ 42. In the context of restitution, this court has held that
“’“[p]rior to imposing a restitution order, a trial court must determine the amount of
restitution to a reasonable degree of certainty, ensuring that the amount is supported by
competent, credible evidence.”’” Marcellino at ¶ 24, quoting State v. Flanagan, 11th Dist.
Ashtabula No. 2015-A-0020, 2015-Ohio-5528, ¶ 43, quoting State v. Coldiron, 12th Dist.
Clermont No. CA2008-06-062, 2009-Ohio-2105, ¶ 21. Due to the similarity between
restitution and reimbursement, we can discern of no reason why reimbursement orders
would not also require support by competent, credible evidence to a reasonable degree
of certainty. See Thames at ¶ 22-23 (restitution involves payment to the victim of a crime
for economic losses caused by the offender, and reimbursement involves “payment to a
government agency for costs incurred as a result of the offender’s actions”). We
therefore review the reimbursement order to determine if the trial court abused its
discretion in determining the reimbursement amount to a reasonable degree of certainty,
ensuring that the amount is supported by competent, credible evidence.
{¶29} At the reimbursement hearing, Megan Newkirk, the shelter manager for the
LHS, testified that she is familiar with the costs incurred by the LHS resulting from the
seizure of the 157 living cats in this case. Newkirk identified an exhibit that summarized
the medical, dental, lab work, and disposal services involved with these cats. She
maintained that she determined the costs of the medical services by assessing the cost
of the medication, supplies, and veterinarian time. Newkirk identified another exhibit
listing every cat that was seized from Caroline’s and the medications administered. The
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medical expenses amounted to a total of $26,212.63. Newkirk indicated that this was a
conservative estimate because she included only one veterinarian examination per cat,
at the rate of $20.00, for the exam administered as each cat was processed into the
shelter; however, many of the cats required further veterinary care.
{¶30} With respect to the boarding and nonmedical care, Newkirk indicated that
the LHS charged a standard fee of $15.00 per day, per cat, to cover the costs of food,
water, shelter, cage-cleaning, exercise, supplies, and facility overhead. However,
Newkirk only requested boarding and nonmedical care charges for four days for each cat,
which was a conservative estimate, as many of the cats remained at the LHS for over two
weeks, and some for up to five months. In total, Newkirk requested $9,360.00 for
boarding and nonmedical care.
{¶31} Newkirk acknowledged that this case was used in the LHS’ fundraising
materials. However, she maintained that the donations received were not earmarked
toward these specific cats but were used toward the LHS’ general operations. Newkirk
further acknowledged that the LHS received fees for these cats as they were adopted,
but those fees did not fully compensate the organization for the care of the animals.
{¶32} On cross-examination, defense counsel presented an exhibit that depicted
a screenshot from a news story regarding the seizure of the cats from Caroline’s. The
news article directed those interested in donating to the LHS to assist with the cats
rescued from Caroline’s to visit the LHS website. In addition, Newkirk acknowledged that
one of the cats from Caroline’s, Polly, was very sick for a long period of time, and that the
LHS sought to raise money for Polly through an “angel fund.” Newkirk did not know how
much was specifically raised for Polly’s care, although the organization requested
$700.00 from donations, and Polly’s medical care cost $736.48. Newkirk further testified
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that one method of fundraising used by the LHS is to solicit “cage sponsors,” who donate
a specific amount and receive a plaque on a cage. However, the donations are not
specifically utilized in caring for the animal being caged. Newkirk acknowledged that a
defense exhibit demonstrated that the LHS sought a cage sponsor in relation to one of
the cats seized from Caroline’s but reiterated that the donations solicited from cage
sponsors are used for the organization in general. Newkirk contended that all donations
received by the LHS are used for the general operation of the organization, unless a
donation is in the form of an angel fund specific to one animal, in which case donations
up to the amount requested by the LHS are used for that specific animal’s care.
{¶33} Further, on cross-examination, Newkirk testified that it cost $46.00 to
spay/neuter a cat. However, she indicated that the exhibit of medical costs that she had
prepared assessed a cost of only $25.00 per cat that required spaying/neutering. With
respect to $4,900.00 allocated on Newkirk’s exhibit for dental care, Newkirk maintained
that 47 cats were identified by the veterinarian as requiring dental care, and two of the
cats required two dental procedures due to the severity of their conditions. Newkirk
requested $100.00 per dental procedure, explaining that this was also a conservative
estimate because dental procedures of this type would cost a minimum of $500.00 at a
veterinarian’s office.
{¶34} On redirect, Newkirk confirmed that the medical expenses should have
included an additional $20.00 per cat that was spayed or neutered, and she testified that
13 cats required spaying/neutering. Further, Newkirk clarified that a $20.00 flat fee for
the initial veterinary examination was charged for each cat, but, again, no further
veterinary examinations were included in the calculation regardless of whether the cats
received follow-up veterinary care.
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{¶35} The trial court ordered reimbursement to the LHS in the amount of
$31,686.63, representing the costs that Newkirk had identified in her testimony, including
the additional $260.00 for the spaying/neutering, less the fees recouped by the LHS
through adoption.1
{¶36} Caroline’s argues that the trial court erred to its prejudice by refusing to
offset moneys paid by third parties for the care of the animals, resulting in duplicate
payments to the LHS for the same expenses. Additionally, Caroline’s maintains that the
trial court erred in permitting reimbursement in the amount of the LHS’ flat rates. In
making these arguments, Caroline’s relies on case law pertaining to restitution.
{¶37} Although restitution and reimbursement share characteristics, restitution
orders pursuant to statute “shall not exceed the amount of the economic loss suffered by
the victim as a direct and proximate result of the commission of the offense[.]” R.C.
2929.28(A)(1). Accordingly, cases have limited a victim’s ability to recover restitution
where the victim has been reimbursed by a third party, as, in such cases, courts have
held that the victim “‘has not suffered an economic loss.’” State v. Wiley, 10th Dist.
Franklin No. 16AP-686, 2017-Ohio-2744, ¶ 10, quoting State v. Crum, 5th Dist. No. 12
CAA 08 006, 2013-Ohio-903, ¶ 12.
{¶38} However, R.C. 959.99(E)(6)(b) does not limit reimbursement in the same
manner as restitution is limited under R.C. 2929.28. Instead, R.C. 959.99(E)(6)(b)
permits the court to order reimbursement of “the reasonable and necessary costs incurred
by the agency for the care of an animal * * * provided that the costs were not otherwise
1. Although the LHS did not concede that adoption fees were required to be set off against its costs, it
indicated to the trial court that it was not going to argue the issue, and the issue is not presently before this
court.
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paid under section 959.132 of the Revised Code.” R.C. 959.132 provides a process for
an animal owner to post a bond for the care of a seized animal. There is no dispute that
no bond was paid pursuant to R.C. 959.132 in the present case. Accordingly, the trial
court was required only to determine if the costs were reasonably and necessarily
incurred by the LHS and was not required to offset fundraising moneys.
{¶39} Newkirk’s testimony provided competent, credible evidence of the costs
incurred by the facility to a reasonable degree of certainty. Newkirk explained that the
flat fees requested for the boarding and care of the animals were based upon an
assessment of the actual costs incurred by the LHS. In determining the boarding costs
for an impounding agency, it would be unreasonable to require a precise dollar figure to
be computed for the amount of such costs per specific animal, and we cannot say that
the costs of $15.00 per day, per cat, is unreasonable, particularly where the evidence
indicates that many of the cats were boarded for far longer than the four days for which
the LHS requested boarding costs. Similarly, we cannot say that the veterinary exam
cost of $20.00 per cat or the dental procedure cost of $100.00 per procedure were
unreasonable or unnecessary. Last, we cannot say that the $46.00 spaying/neutering
cost was unreasonable. Although Caroline’s argues that spaying/neutering is
discretionary and not necessary, it is the nature of an impounding agency to care for
multiple animals and provide placements for them. We cannot say that spaying/neutering
the cats was unnecessary given the nature of LHS.
{¶40} Accordingly, Caroline’s second assigned error lacks merit.
{¶41} The judgment is affirmed.
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JOHN J. EKLUND, P.J.,
MATT LYNCH, J.,
concur.
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