STATE OF OHIO v. KEVIN HULL
C.A. No. 14AP0025
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
September 30, 2015
2015-Ohio-4001
APPEAL FROM JUDGMENT ENTERED IN THE WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO CASE No. CRB-13-10-01834
MOORE, Judge.
{¶1} Defendant-Appellant Kevin Hull appeals from the judgment of conviction entered by the Wayne County Municipal Court. We affirm in part, and reverse in part.
I.
{¶2} Mr. Hull rented a house in Doylestown. He kept three dogs there, two larger black dogs, and a smaller white dog. The dogs had free access to the house and to a fenced-in area outside. On August 27, 2013, Ms. Candace Beam, who leased an adjacent horse barn, called the Wayne County Humane Society (“Humane Society“) to report that the dogs were “emaciated.” Ultimately, the Humane Society removed the dogs from the property.
{¶3} A six-count complaint was filed against Mr. Hull, three counts for abandonment of animals in violation of
II.
ASSIGNMENT OF ERROR I
MR. HULL‘S CONVICTIONS FOR PROHIBITIONS CONCERNING A COMPANION ANIMAL UNDER R.C. 959.131(C)(2) ARE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND [ARE] AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶4} Mr. Hull asserts in his first assignment of error that his convictions for violating
Sufficiency
{¶5} The issue of whether a conviction is supported by sufficient evidence is a question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The 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. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶6} First, Mr. Hull essentially argues that he was convicted of violating the current version of
{¶7} While it is true that the current version of
No person who confines or who is the custodian or caretaker of a companion animal shall negligently do any of the following:
* * *
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.
{¶8} The language in the complaint mirrors the language in former
{¶9} Pursuant to Former
[a] person acts negligently when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature. A person is negligent with respect to circumstances when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that such circumstances may exist.
{¶10} Mr. Hull argues that the evidence does not support that all three dogs were deprived of wholesome amounts of food and water because: (1) no one knew whether there was food or water available inside the house; (2) no one knew whether the dogs received food or water outside when the humane agents were not present, (3) there was insufficient evidence that the smaller white dog was underfed; and (4) two of the dogs initially lost weight after being seized by the Humane Society.
{¶11} On August 27, 2013, Ms. Beam noticed from “quite a distance” that one of Mr. Hull‘s dogs “d[id]n‘t look right[.]” From the testimony, it appears the dog that initially caused her concern was the smaller white dog. She proceeded closer to the fenced-in area and then saw all three dogs and was “horrified[.]” She testified that the dogs appeared “severely emaciated and underfed[,]” and that “you could count every joint, every bone, * * * they were like a walking skeleton with skin stretched over them essentially.” She did not see any food or water in the enclosure. There were bowls for food and water present, but they were empty. She acknowledged that, although she did not know when the bowls were last filled, it did not look like the dogs were being fed or cared for at the time. When she called the Humane Society she told “them that they needed to come immediately because [she] didn‘t believe the dogs would make it for any more days; they were that emaciated.”
{¶12} Ms. Beam testified that she did not know when the dogs became emaciated. She had not seen them for some time prior to August 27, 2013, but recalled that, prior to that date, the dogs appeared cared for and “completely healthy and normal[.]” She had heard that Mr. Hull was being evicted and had seen him at the property on more than one occasion loading up his
{¶13} Officer Diane Hudson, the Wayne County Dog Warden and a Humane Society agent, responded to Ms. Beam‘s call on August 27, 2013. She attempted to make contact with the owner, but no one was home. She did, however, speak with Mr. Hull‘s landlord, who indicated that he was in the process of evicting Mr. Hull. Officer Hudson observed the three dogs in the fenced-in area and described them as “emaciated[, v]ery thin.” With respect to the two larger black dogs, she testified that she could “see their ribs, their back bone, their hip bones were prominent.” With respect to the smaller white dog, Officer Hudson averred that, “you could see her ribs[, and s]he had a skin issue on the back.” Officer Hudson gave the dogs a gallon of water “and they eagerly drank all of that.” She did not have any food with her, but did have some treats. She had to put the treats over the fence, “because they were starting to fight trying to get the treats from [her].” The dogs were even trying to fight when she gave them water. Officer Hudson left a 24-hour notice requesting Mr. Hull to contact her. Additionally, she took photographs of the dogs.1
{¶14} After 24 hours passed with no response from Mr. Hull, Officer Hudson returned to the property with another person. At that time, there was again no food or water in the bowls. She provided the dogs with two gallons of water and a small bag of dog food, which they consumed within minutes. Officer Hudson acknowledged that she did not know if the dogs had access to food or water in the house or if they had been given food or water in the bowls prior to
{¶15} On August 29, 2013, with permission from Mr. Hull‘s landlord, the dogs were removed from the property. Photographs were taken of them at that time as well and an impound notice was left on the door for Mr. Hull. Mr. Hull‘s landlord reported to Officer Hudson on August 30, 2013, that the impound notice was no longer on the door; however, Mr. Hull never contacted the Humane Society. The dogs were taken to the Humane Society and a veterinarian confirmed that the dogs were underweight. Over the course of the dogs’ stay at the Humane Society, the dogs did gain weight, although two of them did initially lose weight.
{¶16} Stewart Mykrantz, the Executive Director of the Humane Society and a dog warden and humane agent, monitored the care of the dogs while they were at the Humane Society. He testified that the dog in the most concerning condition was the larger black dog. Initially upon intake at the Humane Society, that dog was not eating or drinking and required intravenous fluids and antibiotics. Until the dog started improving, he was concerned “that [they] might lose that dog.”
{¶17} Based upon our review of the record, we conclude the State presented sufficient evidence, when viewed in a light most favorable to the prosecution, whereby a trier of fact could find Mr. Hull guilty of violating former
{¶18} In light of Mr. Hull‘s arguments on appeal, we conclude the State presented sufficient evidence to find him guilty of three counts of violating former
Manifest Weight
{¶19} Mr. Hull also argues that his convictions for violating former
an appellate court 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.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
{¶21} We note that Mr. Hull has not identified which portions of his argument relate to sufficiency and which relate to manifest weight. Most of his arguments appear to be directed towards the sufficiency of the evidence, which we have addressed above. To the extent Mr. Hull argues his convictions are against the manifest of the evidence, we are not persuaded.
{¶22} The trier of fact was able to listen to the testimony of the witnesses and view the photographs of the dogs. The condition and behavior of the dogs, as well as the lack of food and water at the time of Officer Hudson‘s visits, provided circumstantial evidence that the dogs did not have access to food and water absent it being provided by the humane agents. The dogs were collectively described by both Ms. Beam and Officer Hudson as being emaciated and there was no testimony that would even suggest that any of the three dogs was in a healthy condition or at a healthy weight. We remain mindful that “[e]valuating evidence and assessing credibility are primarily for the trier of fact.” (Citations omitted.) State v. Bulls, 9th Dist. Summit No. 27029, 2015-Ohio-276, ¶ 17. After thoroughly and independently reviewing the record, we cannot say that the trial court lost its way in finding Mr. Hull guilty of three counts of violating former
{¶23} Mr. Hull‘s first assignment of error is overruled.
MR. HULL‘S CONVICTIONS FOR ABANDONING AN ANIMAL UNDER R.C. 959.01 ARE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND [ARE] AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THERE WAS NO EVIDENCE OF COMPLETE ABANDONMENT.
{¶24} Mr. Hull asserts in his second assignment of error that his convictions for violating
Sufficiency
{¶25} Mr. Hull‘s argument as to this assignment of error is limited to his contention that the evidence is insufficient to establish that he abandoned the dogs in light of the manner in which the term “abandoned” has been defined in the case law. We agree.
{¶26} The complaint contained three counts alleging that Mr. Hull violated
{¶27} Here, even viewing the evidence in a light most favorable to the State, we cannot say that there was sufficient evidence of “affirmative proof” that on or about August 27, 2013, Mr. Hull intended “to totally discard the [dogs].” Carver at *2.
{¶28} It is true that Mr. Hull was not home when Officer Hudson visited the property and that Mr. Hull did not make contact with her or return her call as requested. Officer Hudson
{¶29} Nonetheless, there was also evidence that Mr. Hull had not yet been evicted from the property. Officer Hudson testified that, to her knowledge, August 27, 2013, was not the last day of Mr. Hull‘s three-day eviction notice, and Ms. Beam believed that as of August 27, 2013, Mr. Hull still lived at the property. When Officer Hudson spoke to Mr. Hull‘s landlord on August 30, 2013, after the dogs were removed, the landlord indicated that the impound notice left on August 29, 2013 had been removed and that he had had Mr. Hull‘s telephone service turned off. Further, there was testimony that Mr. Hull was still mowing the lawn a few days prior to August 27, 2013, and that the property was being otherwise maintained. Moreover, when Officer Hudson returned to the property on August 28, 2013, she noticed that a bike was missing and a bag of clothes was sitting on a small table in front of the house that was not there the day before.
{¶30} After reviewing all of the evidence in a light most favorable to the State, we cannot conclude there is sufficient evidence constituting “affirmative proof” that on or about August 27, 2013, Mr. Hull intended “to totally discard the [dogs].” Carver, 1988 WL 114455, at *2. While the dogs were not being cared for, they were still being kept in an enclosed space on property rented by Mr. Hull. Moreover, on or about August 27, 2013, Mr. Hull was not yet
{¶31} In light of the foregoing, we conclude that the State failed to present sufficient evidence to support the findings of guilt with respect to the three counts of violating
Manifest Weight
{¶32} As Mr. Hull‘s convictions for violating
{¶33} Mr. Hull‘s second assignment of error is sustained to the extent he asserts his convictions for violating
III.
{¶34} Mr. Hull‘s first assignment of error is overruled and his second assignment of error is sustained to the extent he asserts there was insufficient evidence to find him guilty of violating
There were reasonable grounds for this appeal.
Judgment affirmed in part, reversed in part, and cause remanded.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed equally to both parties.
CARLA MOORE
FOR THE COURT
CARR, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
CHRISTINA I. REIHELD, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting Attorney, for Appellee.