State v. ChambersState v. Chambers
Neal D. Schuett, 121 West High Street, Oxford, Ohio 45056, for defendant-appellant
O P I N I O N
RINGLAND, J.
{¶1} Defendant-appellant, Dustin Shane Chambers, appeals from his conviction in the Butler County Court of Common Pleas for one count of failing to properly confine a vicious dog. For the reasons outlined below, we affirm.
{¶2} On January 5, 2010 at 11:22 a.m., the Hamilton City Police Department received a call alleging that a “pregnant pitbull” [sic] was being kept behind a house located at 328 South B Street, Hamilton, Butler County, “without shelter or food.” Once arriving at
{¶3} On March 3, 2010, appellant was indicted by the Butler County Grand Jury for failing to properly confine the dog in violation of
{¶4} Appellant now appeals his conviction, raising four assignments of error for review. For ease of discussion, appellant‘s assignments of error will be addressed out of order.
{¶5} Assignment of Error No. 3:
{¶6} “THE MANIFEST WEIGHT OF THE EVIDENCE DID NOT SUPPORT A FINDING OF GUILT AGAINST DEFENDANT-APPELLANT FOR IMPROPER CONFINEMENT OF A VICIOUS DOG.”
{¶7} In his third assignment of error, appellant argues that his conviction was against the manifest weight of the evidence. In support of his claim, appellant argues that the jury lost its way because “evidence exists proving third-parties are the owner, keeper, or harborer” of the dog. We disagree.
{¶8} A manifest weight challenge concerns the inclination of the greater amount of
{¶9} Pursuant to
{¶10} In this case, Deputy Merbs testified that after arriving on the scene and informing appellant that he had received a “complaint about his dogs,” appellant escorted him into the backyard where he observed a “larger female that was * * * tied up on a lead rope that was secured to the end of a broken toilet that was in the back.” After asking appellant how long he had the dogs, Deputy Merbs testified that appellant told him that shortly after he moved into the upstairs apartment he found the “half dead and skinny” dog “in the shed,” so he “took [it] from the shed and * * * gave [it] food and kept [it] alive.” Deputy Merbs then testified that after he informed appellant that “there was a lot of violations” relating to the dog‘s confinement, appellant “took the chain off the dog‘s neck, kicked it in the ass, and said, ‘Well, then get the f*** off my property.‘” After informing appellant that turning the dog loose would result in another citation, Deputy Merbs testified that appellant “took the dog in the house and told [him] to get the f*** off his property and not return without the police.” Thereafter, Officer Kiep, who was dispatched to the scene to ensure Deputy Merbs safety, testified that appellant referred to the dog as “my dog” and that appellant stated that he “want[ed] to keep [his] dogs.” In addition, Earl Mills, appellant‘s neighbor, testified that although he was not sure, based on his previous conversations with appellant, he believed the dog belonged to appellant.
{¶11} In his defense, however, appellant testified that he “never saw that dog,” and that it was not on his property. In addition, Shawn Nudds, appellant‘s landlord, Tamara Owens, appellant‘s neighbor, and Gary Mathis, a “friend of the family,” Krysta Hoskins, appellant‘s wife, all testified that they never saw appellant caring for any dogs on the property. Furthermore, Officer Flannery, who accompanied Deputy Merbs so that he could safely serve appellant with a summons, testified that appellant was “adamant about saying
{¶12} After a thorough review of the record, and while appellant did present some evidence that he was not the owner, keeper, or harborer of the dog, it is well-established that “[w]hen conflicting evidence is presented at trial, a conviction is not against the manifest weight of the evidence simply because the jury believed the prosecution testimony.” State v. Bromagen, Clermont App. No. CA2005-09-087, 2006-Ohio-4429, ¶38; State v. Lloyd, Warren App. Nos. CA2007-04-052, CA2007-04-053, 2008-Ohio-3383, ¶51; State v. Woodruff, Butler App. No. CA2008-11-824, 2009-Ohio-4133, ¶25. Therefore, because we find the state presented competent, credible evidence indicating appellant was the owner, keeper, or harborer of the dog, the jury did not clearly lose its way so as to create such a manifest miscarriage of justice requiring his conviction to be reversed. Accordingly, appellant‘s third assignment of error is overruled.
{¶13} Assignment of Error No. 2:
{¶14} “THERE WAS INSUFFICIENT EVIDENCE TO CONVICT DEFENDANT-APPELLANT OF IMPROPER CONFINEMENT OF A VICIOUS DOG.”
{¶15} In his second assignment of error, appellant argues that the state provided insufficient evidence to prove “that the dog in question was a ‘vicious dog.‘” We disagree.
{¶16} Whether the evidence presented is legally sufficient to sustain a verdict is a question of law. State v. Lazier, Warren App. No. CA2009-02-015, 2009-Ohio-5928, ¶9; Thompkins, 78 Ohio St.3d at 386. In reviewing the sufficiency of the evidence, “[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. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶113, quoting State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus; State v. Carroll, Clermont App. Nos. CA2007-02-030, CA2007-03-041, 2007-Ohio- 7075, ¶117. Proof beyond a reasonable doubt is “proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs.”
{¶17} A “vicious dog,” as defined by
{¶18} In this case, Deputy Merbs, who was familiar with pit bull dogs and who was trained in animal identification, testified that based on his experience, education, training, and observations, the dog in question was a “pit bull, pit bull mix.” In addition, when shown a picture of the dog, Krysta Hoskins, appellant‘s wife and former pit bull owner, testified that the dog in question looked “like a female pit bull.” Furthermore, Earl Mills, appellant‘s neighbor, testified that appellant told him to “watch [the dog] because [it] had an attitude problem.” This evidence was sufficient to establish the state‘s prima facie evidence that the dog was of a breed commonly known as a pit bull, and therefore, presumed to be a “vicious dog” as defined by
{¶19} Appellant, however, claims that “even if the state proved that the dog in
{¶20} Assignment of Error No. 1:
{¶21} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT ALLOWED THE PROSECUTOR TO ADMIT DEFENDANT-APPELLANT‘S UNRELATED PRIOR CONVICTIONS.”
{¶22} In his first assignment of error, appellant argues that the trial court erred by allowing Officer Flannery to testify on cross-examination regarding appellant‘s 2006 conviction for receiving stolen property, as well as appellant‘s 2003 convictions for importuning and attempted unlawful sexual conduct with a minor.
{¶23} “The admission or exclusion of relevant evidence rests within the sound discretion of the trial court.” State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the syllabus. An appellate court will not disturb evidentiary rulings absent an abuse of discretion that produced a material prejudice to the aggrieved party. State v. Roberts, 156 Ohio App.3d 352, 2004-Ohio-962, ¶14. An abuse of discretion connotes more than an error of law or judgment; it implies that the court‘s attitude was unreasonable, arbitrary, or unconscionable. State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶181. When applying the abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 1993-Ohio-122.
{¶24} Pursuant to
{¶25} In this case, after the state rested, appellant initially called Officer Flannery to the stand, who testified, in pertinent part, as follows:
{¶26} “[APPELLANT‘S TRIAL COUNSEL]: Do you recall an incident at 328 South B Street in January of 2010 involving [appellant]?
{¶27} “[OFFICER FLANNERY]: Yes, I do.
{¶28} “[APPELLANT‘S TRIAL COUNSEL]: Okay. Who else was present at the time?
{¶29} “[OFFICER FLANNERY]: A female, I believe it was his girlfriend was at the house and the dog warden.
{¶30} “[APPELLANT‘S TRIAL COUNSEL]: Deputy Merbs?
{¶31} “[OFFICER FLANNER]: Yes.
{¶32} “[APPELLANT‘S TRIAL COUNSEL]: Can you please tell us why you were there?
{¶33} “[OFFICER FLANNER]: To assist the dog warden in serving a summons on [appellant], for his safety.
{¶34} “[APPELLANT‘S TRIAL COUNSEL]: Did you happen to hear any conversation between Deputy Merbs and [appellant]?
{¶35} “[OFFICER FLANNERY]: I pretty much heard all of it, yeah.
{¶36} “* * *
{¶37} “[APPELLANT‘S TRIAL COUNSEL]: Okay. Do you recall any questions regarding the ownership or possession of the dogs in question?
{¶38} “[OFFICER FLANNERY]: I remember—
{¶39} “[APPELLANT‘S TRIAL COUNSEL]: Or dog in question?
{¶40} “[OFFICER FLANNERY]: I remember things about that, yes, but I don‘t remember the exact questions asked or the way they were answered other than [appellant] was adamant about saying they‘re not my dogs.” (Emphasis added.)
{¶41} Although appellant claims otherwise, and while this testimony did not open the door to other aspects of appellant‘s character, Officer Flannery‘s testimony regarding appellant‘s out-of-court statement was clearly hearsay as defined by
{¶42} Pursuant to
{¶43} With these principles in mind, and after a thorough review of the record, we find no error in the trial court‘s decision allowing Officer Flannery to testify regarding appellant‘s 2006 conviction for receiving stolen property. Bradford at ¶76, quoting State v. McCrackin, Butler App. No. CA2001-04-096, 2002-Ohio-3166, ¶34. Receiving stolen property constitutes a crime of dishonesty, and therefore, evidence concerning this conviction was admissible pursuant to
{¶44} The same cannot be said, however, for appellant‘s 2003 convictions for importuning and attempted unlawful sexual conduct with a minor, both fifth-degree felonies. As noted above, pursuant to
{¶46} “Ladies and gentlemen, the Court has permitted his prior criminal record to come into evidence. I want to explain to you why at this point it comes in, because I think it‘s very important. Testimony was elicited * * * on direct examination of this officer of a statement of the defendant. Okay. So the defendant‘s credibility becomes at issue, because essentially the testimony elicited was these were not my dogs.
{¶47} “Now, I‘m permitting evidence of a prior criminal conviction to come in because it goes to the credibility or the believability of that statement. In other words, because of his prior criminal record, you would be likely to give that less weight because of his felony conviction, you are entitled to do so. It‘s to let you judge his credibility.
{¶48} “It‘s not being offered for the fact that he acted in conformity with that conviction, only that it goes to the credibility of the statement that he made to this officer, the fact that it was offered by the defense as for the truth of the matter, okay? So please understand that limited purpose.”
{¶49} The jury is presumed to have followed this instruction. State v. Cope, Butler App. No. CA2009-11-285, 2010-Ohio-6430, ¶79, citing State v. Raglin, 83 Ohio St.3d 253, 264, 1998-Ohio-110.
{¶50} Moreover, as discussed in his second and third assignments of error, the state
{¶51} Assignment of Error No. 4:
{¶52} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT FAILED TO ALLOW DEFENSE COUNSEL TO QUESTION THE CHARACTER FOR TRUTHFULNESS OF A WITNESS.”
{¶53} In his fourth assignment of error, appellant argues that the trial court erred by excluding opinion testimony of his witness, Tamara Owens, one of appellant‘s neighbors, regarding the reputation of truthfulness or untruthfulness of the state‘s witness, Earl Mills, another of appellant‘s neighbors.
{¶54} Pursuant to
{¶56} However, while we may find the trial court‘s decision excluding Owens testimony was improper, after a thorough review of the record, we find such error to be harmless. See State v. Reed, 155 Ohio App.3d 435, 2003-Ohio-6536, ¶32, citing State v. Bayless (1976), 48 Ohio St.2d 73, paragraph seven of the syllabus. As noted in appellant‘s second and third assignments of error, the state provided overwhelming evidence of appellant‘s guilt and there is nothing in the record to indicate this error contributed to his conviction. Therefore, appellant‘s fourth assignment of error is overruled.
{¶57} Judgment affirmed.
POWELL, P.J., and BRESSLER, J., concur.