[Cite as Cleveland v. Hunter, 2014-Ohio-1432.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100215
CITY OF CLEVELAND PLAINTIFF-APPELLEE
vs.
ROBERT E. HUNTER DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cleveland Municipal Court Case No. 2013-CRB-003053
BEFORE: Keough, J., Boyle, A.J., and Blackmon, J.
RELEASED AND JOURNALIZED: April 3, 2014 [Cite as Cleveland v. Hunter, 2014-Ohio-1432.] ATTORNEY FOR APPELLANT
Patrick S. Lavelle Van Sweringen Arcade 123 West Prospect Avenue, Suite 250 Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEE
Barbara Langhenry Director of Law Victor R. Perez Chief Prosecutor Angela Rodriguez Assistant City Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 [Cite as Cleveland v. Hunter, 2014-Ohio-1432.] KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Robert E. Hunter, appeals from his
conviction for cruelty to animals. Finding no merit to the appeal, we affirm.
I. Background
{¶2} Hunter was charged with one count of animal neglect in violation
of Cleveland Codified Ordinances (“Cleveland Cod. Ord.”) 603.091 and one
count of cruelty to animals in violation of Cleveland Cod. Ord. 603.09(a)(1),
both misdemeanors of the first degree. After a bench trial, the court found
him not guilty of animal neglect but guilty of cruelty to animals. The court
sentenced him to 180 days in jail, suspended, placed him on two years of
inactive probation, and ordered that he forfeit three dogs to the city of
Cleveland. This appeal followed.
II. Analysis
{¶3} In his single assignment of error, Hunter contends that his
conviction was against the manifest weight of the evidence. When reviewing a
claim that a conviction is against the manifest weight of the evidence, we
review the record, weigh the evidence and all reasonable inferences, and
consider the credibility of witnesses. State v. Chandler, 8th Dist. Cuyahoga
No. 98866, 2013-Ohio-2903, ¶16, citing State v. Thompkins, 78 Ohio St.3d
380, 387, 1997-Ohio-52, 678 N.E.2d 541. We then determine if the trier of
fact clearly lost its way in resolving conflicts in the evidence and created such a miscarriage of justice that the conviction must be reversed and a new trial
ordered. Id. We exercise this discretionary power only in those exceptional
cases where the evidence weighs heavily against conviction. Id.
{¶4} The state presented the testimony of Cleveland police detective
Sean Smith at trial. Smith testified that in late October or early November,
2012, he began an investigation regarding a house located at 15908
Huntmere in Cleveland in response to a complaint from the city’s dog warden
regarding dog- fighting at the home. Smith learned that the owner of the
property was John James. Smith said he looked over the fence into the
backyard of the house approximately 12 times over several weeks and saw
several dogs tethered on very short chains in the backyard, but did not ever
see any food or water in the yard. He also spoke with several neighbors who
confirmed there was dogfighting in the backyard.
{¶5} On November 26, 2012, Smith and several other officers
executed a search warrant at James’s home. Smith said he found three dogs
in the backyard — a large brown female pit bull, a small brown dog, and a
male black and white pit bull mix — and two puppies in a shed in the
backyard. Smith said that Hunter contacted him several days after the
search and told him that the large brown pit bull, the black and white pit bull
mix, and another dog found in the basement of the home belonged to him. [Cite as Cleveland v. Hunter, 2014-Ohio-1432.] {¶6} Smith testified that the dogs in the backyard were tethered to
homemade dog houses with thick, eight to ten foot chains that weighed
approximately 50 to 60 pounds each. Smith said that he observed two water
bowls in the backyard, one that was turned over and another that was dry
and full of leaves. He said there was no food or water in the backyard, and
that even if there had been water in the bowls, because of its short chain, the
black and white dog could not have reached them. He testified further that
the bowl closest to the brown pit bull was empty and dry.
{¶7} Smith found two dogs in the basement of the home, one of which
belonged to Hunter. Hunter’s dog was chained to a pole in the basement
with a chain similar to those on the dogs in the backyard and it had many
cuts and scars on its face. Smith said there was water available for this dog
but he found no dog food anywhere in the house.
{¶8} Hunter admitted that he owned the dogs found at James’s house.
He said that he and the dogs were evicted from his brother’s house, so he
moved in with his mother, who lived down the street from James. Hunter
said that James agreed to keep the dogs until he found another home. He
said that he fed and watered the dogs daily, although he admitted that his
feeding and watering schedule was not consistent. Hunter testified that he
fed the dogs raw chicken and that water was always available from a
five-gallon bucket next to the doghouse. He said that he brought James bags of dog food and assumed that James was feeding the dogs in the basement
because he did not have access to the house. Hunter testified that on
November 26, 2012, the day the search warrant was executed, he went to feed
the dogs but they were gone. He said that he called Smith that day about
the dogs.
{¶9} On cross-examination, Hunter testified that he went to James’s
house a little before noon on November 26 to feed the dogs. On rebuttal,
however, Det. Smith testified that he watched James’s house from
approximately 7:30 to 9:30 a.m. on the morning of November 26 while he
waited for James to leave the house. Smith testified that the police executed
the search warrant at approximately 10:00 a.m. and did not leave the
property until approximately 1 p.m.
{¶10} The trial court found Hunter guilty of cruelty to animals in
violation of Cleveland Cod. Ord. 603.09(a)(1), which states:
No person shall torture an animal, deprive one of necessary sustenance, unnecessarily or cruelly beat, needlessly mutilate or kill, or impound or confine an animal without supplying it during such confinement with a sufficient quantity of good wholesome food and water.
{¶11} Hunter argues that his conviction was against the manifest
weight of the evidence because by finding him guilty, the trial court
necessarily interpreted this provision to impose strict liability, i.e., to mean that a dog owner may never leave its dogs without food and water, even if
only for a short period of time. Hunter concedes that his dogs did not have
food and water for a period of several hours on November 26, 2012. He
contends, however, that Cleveland Cod. Ord. 603.09(a)(1) does not require
constant access to food but only a sufficient quantity of food and water, which
he asserts means an amount provided in such frequency as to maintain the
good health of the animal. He contends there was no evidence his dogs were
malnourished, which must mean they were getting a sufficient quantity of
food and water to sustain them, and, accordingly, he did not violate the
statute.
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[Cite as Cleveland v. Hunter, 2014-Ohio-1432.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100215
CITY OF CLEVELAND PLAINTIFF-APPELLEE
vs.
ROBERT E. HUNTER DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cleveland Municipal Court Case No. 2013-CRB-003053
BEFORE: Keough, J., Boyle, A.J., and Blackmon, J.
RELEASED AND JOURNALIZED: April 3, 2014 [Cite as Cleveland v. Hunter, 2014-Ohio-1432.] ATTORNEY FOR APPELLANT
Patrick S. Lavelle Van Sweringen Arcade 123 West Prospect Avenue, Suite 250 Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEE
Barbara Langhenry Director of Law Victor R. Perez Chief Prosecutor Angela Rodriguez Assistant City Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 [Cite as Cleveland v. Hunter, 2014-Ohio-1432.] KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Robert E. Hunter, appeals from his
conviction for cruelty to animals. Finding no merit to the appeal, we affirm.
I. Background
{¶2} Hunter was charged with one count of animal neglect in violation
of Cleveland Codified Ordinances (“Cleveland Cod. Ord.”) 603.091 and one
count of cruelty to animals in violation of Cleveland Cod. Ord. 603.09(a)(1),
both misdemeanors of the first degree. After a bench trial, the court found
him not guilty of animal neglect but guilty of cruelty to animals. The court
sentenced him to 180 days in jail, suspended, placed him on two years of
inactive probation, and ordered that he forfeit three dogs to the city of
Cleveland. This appeal followed.
II. Analysis
{¶3} In his single assignment of error, Hunter contends that his
conviction was against the manifest weight of the evidence. When reviewing a
claim that a conviction is against the manifest weight of the evidence, we
review the record, weigh the evidence and all reasonable inferences, and
consider the credibility of witnesses. State v. Chandler, 8th Dist. Cuyahoga
No. 98866, 2013-Ohio-2903, ¶16, citing State v. Thompkins, 78 Ohio St.3d
380, 387, 1997-Ohio-52, 678 N.E.2d 541. We then determine if the trier of
fact clearly lost its way in resolving conflicts in the evidence and created such a miscarriage of justice that the conviction must be reversed and a new trial
ordered. Id. We exercise this discretionary power only in those exceptional
cases where the evidence weighs heavily against conviction. Id.
{¶4} The state presented the testimony of Cleveland police detective
Sean Smith at trial. Smith testified that in late October or early November,
2012, he began an investigation regarding a house located at 15908
Huntmere in Cleveland in response to a complaint from the city’s dog warden
regarding dog- fighting at the home. Smith learned that the owner of the
property was John James. Smith said he looked over the fence into the
backyard of the house approximately 12 times over several weeks and saw
several dogs tethered on very short chains in the backyard, but did not ever
see any food or water in the yard. He also spoke with several neighbors who
confirmed there was dogfighting in the backyard.
{¶5} On November 26, 2012, Smith and several other officers
executed a search warrant at James’s home. Smith said he found three dogs
in the backyard — a large brown female pit bull, a small brown dog, and a
male black and white pit bull mix — and two puppies in a shed in the
backyard. Smith said that Hunter contacted him several days after the
search and told him that the large brown pit bull, the black and white pit bull
mix, and another dog found in the basement of the home belonged to him. [Cite as Cleveland v. Hunter, 2014-Ohio-1432.] {¶6} Smith testified that the dogs in the backyard were tethered to
homemade dog houses with thick, eight to ten foot chains that weighed
approximately 50 to 60 pounds each. Smith said that he observed two water
bowls in the backyard, one that was turned over and another that was dry
and full of leaves. He said there was no food or water in the backyard, and
that even if there had been water in the bowls, because of its short chain, the
black and white dog could not have reached them. He testified further that
the bowl closest to the brown pit bull was empty and dry.
{¶7} Smith found two dogs in the basement of the home, one of which
belonged to Hunter. Hunter’s dog was chained to a pole in the basement
with a chain similar to those on the dogs in the backyard and it had many
cuts and scars on its face. Smith said there was water available for this dog
but he found no dog food anywhere in the house.
{¶8} Hunter admitted that he owned the dogs found at James’s house.
He said that he and the dogs were evicted from his brother’s house, so he
moved in with his mother, who lived down the street from James. Hunter
said that James agreed to keep the dogs until he found another home. He
said that he fed and watered the dogs daily, although he admitted that his
feeding and watering schedule was not consistent. Hunter testified that he
fed the dogs raw chicken and that water was always available from a
five-gallon bucket next to the doghouse. He said that he brought James bags of dog food and assumed that James was feeding the dogs in the basement
because he did not have access to the house. Hunter testified that on
November 26, 2012, the day the search warrant was executed, he went to feed
the dogs but they were gone. He said that he called Smith that day about
the dogs.
{¶9} On cross-examination, Hunter testified that he went to James’s
house a little before noon on November 26 to feed the dogs. On rebuttal,
however, Det. Smith testified that he watched James’s house from
approximately 7:30 to 9:30 a.m. on the morning of November 26 while he
waited for James to leave the house. Smith testified that the police executed
the search warrant at approximately 10:00 a.m. and did not leave the
property until approximately 1 p.m.
{¶10} The trial court found Hunter guilty of cruelty to animals in
violation of Cleveland Cod. Ord. 603.09(a)(1), which states:
No person shall torture an animal, deprive one of necessary sustenance, unnecessarily or cruelly beat, needlessly mutilate or kill, or impound or confine an animal without supplying it during such confinement with a sufficient quantity of good wholesome food and water.
{¶11} Hunter argues that his conviction was against the manifest
weight of the evidence because by finding him guilty, the trial court
necessarily interpreted this provision to impose strict liability, i.e., to mean that a dog owner may never leave its dogs without food and water, even if
only for a short period of time. Hunter concedes that his dogs did not have
food and water for a period of several hours on November 26, 2012. He
contends, however, that Cleveland Cod. Ord. 603.09(a)(1) does not require
constant access to food but only a sufficient quantity of food and water, which
he asserts means an amount provided in such frequency as to maintain the
good health of the animal. He contends there was no evidence his dogs were
malnourished, which must mean they were getting a sufficient quantity of
food and water to sustain them, and, accordingly, he did not violate the
statute.
{¶12} Hunter is correct that Cleveland Cod. Ord. 603.09(a)(1) does not
create a strict liability offense. State v. Ham, 3d Dist. Wyandot No. 16-09-01,
2009-Ohio-3822, ¶ 39, citing State v. Bergen, 121 Ohio App.3d 459, 461, 700
N.E.2d 345 (1st Dist.1997) (interpreting a similar statute). The requisite
mens rea is recklessness. Id. A person acts recklessly when, with heedless
indifference to the consequences, he disregards a known risk that his conduct
is likely to cause a certain result or is likely to be of a certain nature.
Cleveland Cod. Ord. 601.07(c).
{¶13} Even under this standard, Hunter’s conviction for cruelty to
animals is not against the manifest weight of the evidence. The city presented credible evidence to establish that the dogs were consistently
confined without food and water. Det. Smith testified that he had observed
the dogs in the backyard of James’s home nearly a dozen times over several
weeks and had never seen food or water available to them. And Smith did
not see anyone feed or water the dogs in the backyard on November 26, 2012,
the day the police executed the search warrant, even though Smith observed
the house for two hours before executing the warrant and was actually on the
property for over three hours.
{¶14} Furthermore, there were significant inconsistencies in Hunter’s
testimony. Although Hunter insisted that the dogs in the backyard always
had access to water from a five-gallon bucket by the doghouses, Smith
testified that over the course of several weeks, he never saw any water
provided for the dogs in the backyard. And no buckets were found in the
backyard on November 26, 2012, when the police executed the search
warrant.
{¶15} Moreover, on cross-examination, Hunter testified that when he
came to feed the dogs at approximately 11:45 a.m. on November 26, the dogs
were gone. But Det. Smith never saw Hunter that day, even though the
police were at James’s home until 1 p.m. Hunter also testified that he
immediately called Smith on November 26 when he discovered that the dogs were missing. Smith, however, testified that Hunter did not call him until
several days later, which indicates that despite Hunter’s testimony that he
fed and watered the dogs every day, he was not aware for several days that
his dogs were missing and was unconcerned about feeding or watering them.
{¶16} After reviewing the record, weighing the evidence and
reasonable inferences, and considering the credibility of the witnesses, we
cannot say that Hunter’s conviction was against the weight of the evidence.
Even if Hunter fed and watered the dogs once every day, as the trial court
found at sentencing, the dogs in the backyard were always staked to the
ground and there was nothing within their reach that allowed them to ever
get water during the day or evening. Such disregard for his dogs’ thirst can
only be characterized as reckless. Moreover, at a minimum, Hunter acted
recklessly regarding the dog found in the basement by failing to ensure that
the dog was being properly fed by James. Hunter testified that he did not
feed or water the dog in the basement because he did not have access to
James’s house and simply “assumed” that James was feeding the dog.
{¶17} Because Hunter’s dogs were confined without a sufficient
quantity of both food and water, his conviction for cruelty to animals in
violation of Cleveland Cod. Ord. 603.09(a)(1) was not against the manifest
weight of the evidence. The assignment of error is overruled. {¶18} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cleveland Municipal Court to carry this judgment into execution. The
defendant’s conviction having been affirmed, any bail pending appeal is
terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, A.J., and PATRICIA ANN BLACKMON, J., CONCUR [Cite as Cleveland v. Hunter, 2014-Ohio-1432.]