State v. Earley

2020 Ohio 4548

• Court: Ohio Court of Appeals
• Decided: September 21, 2020
• Docket: 2019CA00169
• Status: Published

Opinion

[Cite as State v. Earley, 2020-Ohio-4548.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : MIKAALAI EARLEY, : Case No. 2019CA00169 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court, Case No. 2019CRB3110

JUDGMENT: Affirmed

DATE OF JUDGMENT: September 21, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KRISTEN BATES AYLWARD AARON KOVALCHIK Canton Law Director 116 Cleveland Ave. North Canton, Ohio 44702 JASON P. REESE Canton City Prosecutor

KATIE ERCHICK GILBERT Deputy Chief Counsel 218 Cleveland Ave. S.W. P.O. Box 24218 Canton, Ohio 44701-4218 Stark County, Case No. 2019CA00169 2

Baldwin, J.

{¶1} Defendant-appellant Mikaalai Earley appeals her conviction from the

Canton Municipal Court on one count of abandoning animals. Plaintiff-appellee is the

State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On June 21, 2019, a complaint was filed charging appellant with one count

of abandoning animals in violation of R.C. 959.01, a misdemeanor of the second degree.

A jury trial commenced on October 2, 2019. The following testimony was adduced at trial.

{¶3} Deputy Phil Sedlacko of the Sheriff’s Department Dog Warden Division

testified that a two year old husky named King/Kody was brought to the Dog Warden’s

Department by the Canton Police Department on or about June 5, 2019. The microchip

in the dog indicated that appellant was the owner of the dog. Deputy Sedlacko testified

that “we had had that dog in our facility before, so we kind of had some history on it.”

Transcript at 69. Deputy Sedlacko assumed that the dog had been caught running at

large and picked up on the road before.

{¶4} The Deputy testified that he spoke with appellant on June 6, 2019 and told

her that they had her dog. Appellant at that time did not know that they had her dog.

Appellant told him that her son was going to come and pick up the dog. Appellant’s son

never came to pick up the dog. On June 13, 2019, the Deputy called and left a message

with appellant’s son advising him that appellant needed to come and get the dog or

abandonment charges would be filed against appellant. Deputy Sedlacko testified from

June 5, 2019 to June 13th or 14th of 2019, no one came to pick up the dog. He testified

that on June 13, 2019, he was ordered to file abandonment charges against appellant. Stark County, Case No. 2019CA00169 3

{¶5} On cross-examination, Deputy Sedlacko testified that he was unaware that

Kody/ King had an owner prior to appellant. The dog was later adopted out.

{¶6} Deputy John Barber of the Dog Warden’s Division of the Stark County

Sheriff’s Department testified that he spoke with appellant over the phone after the dog

had been there for a week or so and told appellant that she needed to pick up the dog.

Appellant had told him that her son was going to retrieve the dog and that she had

provided money to her son to do so. He testified that no one came to retrieve the dog. He

testified that appellant had reclaimed the dog from the dog pound on previous occasions

including on April 29, 2019. After appellant failed to reclaim the dog this time, his office

decided to file a charge against appellant. A charge was filed on June 21, 2019. The dog

was adopted out on August 14, 2019. Deputy Barber testified that appellant never told

him that she did not want the dog anymore or that she could not afford the dog.

{¶7} Major C.J. Stantz of the Stark County Sheriff’s Office testified that he

oversees the Dog Warden Division. He testified that he spoke with appellant on June 14,

2019 and again advised her that she needed to come and pick up her dog and that he

was giving her three more days, until June 17, 2019, to do so before the Prosecutor’s

Office was contacted and a warrant filed. According to him, appellant indicated that she

had better things to do. On June 21, 2019, one of his officers got a warrant for appellant’s

arrest for abandoning the dog at their facility. He testified that appellant did not retrieve

the dog from the dog pound.

{¶8} Prior to appellant taking the stand on her own behalf, the trial court ruled

that appellant could not testify in the presence of the jury that shots were filed at her

residence because there was no record of this incident with the Canton Police Stark County, Case No. 2019CA00169 4

Department. Appellant had sought to testify that the reason she did not immediately

respond to the officer’s request to pick up the dog was because she moved out of the

area because of the shooting. Prior to the start of trial, Sergeant Prince of the Canton

Police Department had indicated to the State that there were no shots fired during the

time frame appellant alleged.

{¶9} However, appellant was permitted to proffer certain testimony outside the

presence of the jury for the purposes of maintaining the record. Appellant testified that on

June 13, 2019, her daughter called her and told her that three or four shots were filed at

their residence and that appellant’s son was the target. She testified that the shooting

was gang related. Appellant testified as a part of the proffer that she immediately drove

home from Columbus and picked up a U-Haul the next morning with the intention of

moving out of the area. She also testified that she told Major Stantz that she did not have

time to pick up the dog because she was trying to move her son out of the neighborhood

and that she then hung up because it was not her priority. She testified that she chose

her son over the dog, that she did not report the shooting to the police and that no one

came to her house in response to the shooting. Appellant did not call 911 and admitted

that there was no record that the shooting happened. Appellant admitted that while the

shooting allegedly happened on June 13, 2019, she had talked to the officer seven days

before about the dog. She stated that she had no intention of getting the dog because

she did not live here. On redirect outside the presence of the jury, appellant testified that

her daughter was a witness to the shooting and that her daughter said that the police

were driving up and down the street, but that she told her daughter not to go outside. She

testified that she had no doubt that a shooting happened that night. On recross, appellant Stark County, Case No. 2019CA00169 5

testified that she was not surprised that no calls were made around her house on the day

of the alleged shooting. Further, she did not know whether the shotspotter was activated

that day. A shotspotter is activated when gunshots are fired.

{¶10} Appellant then testified in the presence of the jury. She testified that she

had a conversation with Deputy Barber when they adopted the dog and that while the dog

was her son’s, the dog was adopted in appellant’s name because she had a driver’s

license and her son did not have ID. She testified that after the dog ran off, she was

contacted and told that she needed to come down and get the dog back but told them

that she lived in Columbus where she also had a home so could not. Appellant testified

that she was told that she had to come with her son to pick up the dog. Appellant testified

that the dog had four previous owners and had escaped from her house at least once

right after they got him in March by opening the door. She testified that the dog knew how

to unlock his cage. She testified that the dog was picked up by the Dog Warden from

their backyard. Appellant also testified that on June 14, 4019, she spoke on the phone

with Major Stantz and told him that she “had something else that I needed to deal with,

and I did not have time to deal with the dog situation at that time.” Transcript at 145. She

testified that she was in the process of moving and had rented a U-Hail that morning.

When asked why she was moving, she testified that she was moving because she was

fearful and needed to move her kids out of the house to a new neighborhood. On cross-

examination, appellant testified that the dog was registered to her and that once she heard

that the dog was missing, she sent money to her son to retrieve the dog, but that her son

was told that he could not come alone and get the dog because the officers thought that

her son was under eighteen. She admitted that she did not get the dog herself because Stark County, Case No. 2019CA00169 6

she had to work and that no one ever came to get the dog. Appellant admitted that her

son went to the Dog Warden’s Office on June 5, 2019 and that she was moving on June

14, 2019 and that between the two dates, she never went to get Kody/King. Appellant

also testified that she told the officers that her son was going to come and get the dog,

but when her son went to the Dog Warden’s Office, they did not give him the dog because

he did not have enough money. Appellant admitted that she was not going to get the dog

herself.

{¶11} On redirect, appellant testified that she was working in Columbus and that

this prevented her from coming back to Canton. She testified that she considered it her

son’s responsibility to come up with the money to retrieve the dog because she

considered the dog to be his dog. She testified on recross that her son had issues that

prevented him from getting an ID and that was why the dog was in her name.

{¶12} The last witness to testify was Jasmine Martin, appellant’s daughter. Martin

testified that Kody/King ran away more than a few times and that on June 4th or 5th of

2019, she saw the police removing Kody/King from appellant’s property. Martin testified

that she tried to yell out to the police that Kody/King was their family dog, but they did not

hear her.

{¶13} At the conclusion of the evidence and the end of deliberations, the jury, on

October 2, 2019, found appellant guilty of abandoning animals. Appellant was sentenced

to serve one day in jail and was given credit to time served and was ordered to complete

100 hours of community service, Appellant was also ordered to pay a $50.00 fine and to

make restitution to the Stark County Sherriff’s Office Dog Warden Division. Stark County, Case No. 2019CA00169 7

{¶14} Appellant now appeals, raising the following assignments of error on

appeal:

{¶15} “I. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

{¶16} “II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT

PERMIT APPELLANT TO TESTIFY AS TO HER VERSION OF THE FACTS.”

I

{¶17} Appellant, in her first assignment of error, argues that her conviction for

abandoning animals is against the manifest weight and sufficiency of the evidence. We

disagree.

{¶18} Sufficiency of evidence and manifest weight of the evidence are separate

and distinct legal standards. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997–Ohio–

52, 678 N.E.2d 541. Sufficiency of the evidence is a test of adequacy. Id. A sufficiency of

the evidence standard requires the appellate court to examine the evidence in the light

most favorable to the prosecution, to determine whether such evidence, if believed, would

convince the average mind of the defendant's guilt beyond a reasonable doubt. State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).

{¶19} In contrast to the sufficiency of the evidence analysis, when reviewing a

weight of the evidence argument, the appellate court reviews the entire record, weighing

the evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts of evidence, the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and Stark County, Case No. 2019CA00169 8

a new trial ordered. State v. Thompkins, supra at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶20} Under a weight of the evidence argument, the appellate court will consider

the same evidence as when analyzing the appellant's sufficiency of evidence argument.

Appellant argues there was insufficient evidence to convict appellant, and the trial court

clearly lost its way as its conviction of appellant based on the total weight of the evidence

caused a manifest miscarriage of justice.

{¶21} Appellant, in the case sub judice, was convicted of violating R.C. 959.01

which states that “No owner or keeper of a dog, cat, or other domestic animal, shall

abandon such animal.” Abandonment will not be presumed but requires affirmative proof

of a person's intent to totally discard the property. Kiser v. Board of Commrs, 85 Ohio St.

129, 97 N.E. 52, 97 N.E.2d 52 (1911); Accord, State v. Amos, 5th Dist. Ashland No. 14–

COA–01, 2014–Ohio–3097, 17 N.E.3d 9, ¶ 21.

{¶22} Appellant argues that appellee failed to prove beyond a reasonable doubt

that she intended to totally abandon Kody/King. There was testimony that appellant was

notified by the Dog Warden that they had her dog on June 6, 2019, which was a week

before the alleged shooting, and that charges were not filed against her until June 21,

2019. Appellant was advised during this time that she needed to pick up her dog or face

charges. Appellant, however, did not pick up her dog and never indicated that she needed

additional time to pick up her dog. Appellant’s dog remained unclaimed for 17 days until

the warrant was filed. Stark County, Case No. 2019CA00169 9

{¶23} We find that, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found appellant guilty of abandoning the

dog. We further find that the jury did not lose its way in convicting appellant.

{¶24} Appellant’s first assignment of error is, therefore, overruled.

II

{¶25} Appellant, in her second assignment of error, argues that the trial court

abused its discretion when it prohibited her from testifying in the presence of the jury

about unverified gunshots fired into her home.

{¶26} Prior to the commencement of trial, the trial court ordered that appellant

could not testify in the presence of the jury that she moved out of the area and did not

immediately respond to the officer’s request to pick up the dog because of the shooting.

The trial court prohibited appellant from so testifying because there was no record of the

shooting. The trial court stated, in relevant part, as follows: “I’m concerned about the

truthfulness. There’s got—any normal person—if my son or daughter gets shot at, there’s

a record of it. If there’s no record it’s not coming in. It’s too easy to make up. It’s too easy.”

Transcript at 8.

{¶27} The trial court later indicated that appellant “can testify that she didn’t feel

safe in the neighborhood and she wanted to leave. I just didn’t want anything to do with

gunshots and things of that nature coming up, when there’s no record of it.” Transcript at

47. Appellant made a proffer outside the presence of the jury about the gunshots and, in

the presence of the jury, testified that she was moving because she was fearful.

{¶28} An abuse of discretion is more than an error law or judgment. Rather, the

term implies that the trial court's attitude in reaching its decision was unreasonable, Stark County, Case No. 2019CA00169 10

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d

1140 (1983).

{¶29} We find that the trial court’s decision was not arbitrary, unconscionable or

unreasonable. The trial court had been informed that there was no report made of the

alleged gunshots, but did permit appellant to testify that she was moving because she

was fearful. Moreover, assuming, arguendo, that the trial court erred in not permitting

appellant to testify about the shooting, we find any error was harmless. There was

overwhelming evidence, as set forth above, of appellant’s guilt. While the alleged

gunshots occurred on June 13, 2019, appellant did not pick up the dog despite being

advised on June 6, 2019, a week before, that she needed to pick up the dog. Appellant

was advised more than once that if she did not do so, charges would be filed against her.

{¶30} Appellant’s second assignment of error, is, therefore, overruled.

{¶31} Accordingly, the judgment of the Canton Municipal Court is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Wise, John, J. concur.