State v. Jennings

2022 Ohio 2892

• Court: Ohio Court of Appeals
• Decided: August 19, 2022
• Docket: 29360
• Status: Published

Opinion

[Cite as State v. Jennings, 2022-Ohio-2892.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29360 : v. : Trial Court Case No. CRB2002397 : DUSTIN JENNINGS : (Criminal Appeal from Municipal Court) : Defendant-Appellant : :

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OPINION

Rendered on the 19th day of August, 2022.

ERIK R. BLAINE, Atty. Reg. No. 0080726, Assistant Prosecuting Attorney, City of Vandalia Prosecutor’s Office, 245 James E. Bohanan Memorial Drive, Vandalia, Ohio 45377 Attorney for Plaintiff-Appellee

STEVEN H. ECKSTEIN, Atty. Reg. No. 0037253, 1208 Bramble Avenue, Washington Court House, Ohio 43160 Attorney for Defendant-Appellant

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WELBAUM, J. -2-

{¶ 1} Defendant-appellant, Dustin Jennings, appeals from his convictions in the

Vandalia Municipal Court after a bench trial; he was found guilty of one count of cruelty

against a companion animal and one count of depriving a companion animal of necessary

sustenance. In support of his appeal, Jennings contends that both of his convictions

were against the manifest weight of the evidence. For the reasons outlined below, the

judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On December 1, 2020, Jennings was charged by complaint with one count

of cruelty against a companion animal in violation of R.C. 959.131(D)(1) and one count

of depriving a companion animal of necessary sustenance in violation of R.C.

959.131(D)(2), both misdemeanors of the second degree. The charges concerned an

eight-year-old, female pit bull mix named Reba, who was at all relevant times in

Jennings’s care. Jennings pled not guilty to both of the charges, and the matter

proceeded to a bench trial.

{¶ 3} At trial, the State presented testimony from Officer Brian Baker of the

Montgomery County Animal Resource Center (“MCARC”). The State also presented

testimony from Dr. Jennifer Kotouch, a veterinarian who examined Reba at the MCARC.

Jennings also testified in his defense. The following is a summary of all the testimony

and evidence that was presented at trial. -3-

Officer Brian Baker

{¶ 4} Officer Baker is an investigating officer at the MCARC. Officer Baker

testified that on the night of October 28, 2020, he was on call at his residence when a

Vandalia police officer contacted him regarding a dog that had been running loose behind

a gas station for a long period of time. Officer Baker explained that a concerned citizen

had called the police about the dog because the citizen was afraid to return the dog to its

owner due to the dog being so emaciated. Officer Baker testified that he told the police

officer that he could not pick up the dog that night because of COVID restrictions and due

to the status of the MCARC kennel. Officer Baker testified that the police officer was

able to take the dog to an organization called “Adopt-A-Pit,” which kept the dog for the

night and then brought it to the MCARC the next day for impoundment.

{¶ 5} Once the dog was impounded at the MCARC, Officer Baker was asked to

investigate the matter so as to determine why the dog was so thin and why she had

lesions on her body. In proceeding with the investigation, Officer Baker testified that he

researched and made contact with the registered owners of the dog, Jennings and

Jennings’s ex-girlfriend, Chastity Jones. Officer Baker testified that on November 2,

2020, he made in-person contact with Jennings at Jennings’s residence on Helke Road

in Vandalia. During that meeting, Officer Baker showed Jennings a picture of the dog

that was found at the gas station; Jennings identified the dog as his pet, Reba. Officer

Baker testified that he also contacted Jones, who advised him that Reba had not been in

her care for several months and that Reba had been healthy when Jones last saw her

two or three months earlier. -4-

{¶ 6} Continuing, Officer Baker testified that during his meeting with Jennings,

Jennings told him that he did not know why Reba was “skinny.” Officer Baker also

testified that Jennings had another dog at his house, a miniature Australian Shepherd

named Harley, who appeared to be a healthy weight. While discussing Reba, Officer

Baker testified that Jennings showed him the two types of dog food that he fed Reba.

Officer Baker testified that Jennings told him that Reba would not gain weight and that on

October 10, 2020, he had had a friend named Anthony Depew take Reba to the

Northridge Animal Clinic (“Northridge”) to be examined.

{¶ 7} In light of this information, Officer Baker asked Jennings to supply him with

paperwork verifying Reba’s visit to Northridge. In response, Jennings told Officer Baker

that he would retrieve the paperwork from Northridge and bring it to the MCARC shelter.

Officer Baker testified that he advised Jennings that it was imperative for him to provide

the paperwork so it could be established that Jennings was trying to address Reba’s

emaciated condition. Officer Baker also advised Jennings that the failure to provide the

paperwork would result in charges being filed against him.

{¶ 8} Despite this warning, Officer Baker testified that Jennings never provided him

with the paperwork from Northridge. Officer Baker also testified that Jennings failed to

return his follow-up telephone calls and would not answer the door to his residence when

Officer Baker returned to ask about the paperwork. Officer Baker contacted Northridge

and discovered that Northridge had no record of Reba’s ever being a patient there.

Therefore, Officer Baker testified that because Jennings failed to show due diligence in

caring for Reba, he filed charges against Jennings for cruelty to a companion animal and -5-

neglect of a companion animal.

Dr. Jennifer Kotouch

{¶ 9} Dr. Kotouch is a veterinarian who works with the MCARC. Dr. Kotouch

testified that on October 29, 2020, she conducted a forensic examination of a pit-bull mix

named Reba for possible cruelty. Dr. Kotouch testified that, at the time of the

examination, Reba was 8 years old and underweight. On a weight scale of one to nine,

with one being emaciated and nine being morbidly obese, Dr. Kotouch testified that

Reba’s weight was at a 1.5. Dr. Kotouch explained that Reba was extremely thin and

that being that thin can cause organ failure.

{¶ 10} Dr. Kotouch testified to preparing a written report of her examination of

Reba, which was admitted into evidence as State’s Exhibit 1. The report indicated that

Reba weighed 38 pounds at the time of the exam and that Reba’s recommended weight

was between 48 and 50 pounds. Dr. Kotouch also testified to taking pictures of Reba,

which were admitted into evidence as State’s Exhibit 2. The pictures depicted several

different views of Reba’s body, including her back, which showed that Reba had a

severely narrow, skeletal frame with her ribcage clearly in view.

{¶ 11} On cross-examination, Dr. Kotouch testified that Reba had been previously

treated at the MCARC for heartworm in the summer of 2020 and that Reba’s weight had

been acceptable at that time. Dr. Kotouch also testified that during the prior visits to the

MCARC, Reba presented with other medical conditions, including a broken tooth, a heart

murmur secondary to heartworm, and arthritis as a result of a knee injury that was in the -6-

process of healing. Dr. Kotouch testified that those preexisting conditions could

potentially affect a dog’s appetite, but explained that it was “[m]uch, much, much less

likely” that those conditions were the cause of Reba’s emaciation. Trial Tr. p. 28.

Specifically, Dr. Kotouch testified that Reba no longer had heartworm when she examined

her for abuse in October 2020 and that Reba ate well and gained weight after she was in

the care of the MCARC. The notes included with Dr. Kotouch’s examination report

indicated that, during the exam for abuse, Reba “ate very eagerly during exam and took

treats well,” and that Reba “definitely ha[d] an appetite.” State’s Ex. 1, Medical History

p. 4-5. The notes further indicated that while in the MCARC’s care, Reba gained seven

pounds in two weeks. Id. at p. 1-2.

{¶ 12} In addition to Reba’s emaciated condition, Dr. Kotouch’s pictures depicted

lesions on Reba’s tail, legs, and paws. Dr. Kotouch testified that the lesions were likely

from Reba’s being kept on a hard surface for an extended period of time. The medical

history included in State’s Exhibit 1 indicated that the lesions had not been present when

the MCARC treated Reba for heartworm in the summer of 2020. The notes from June

15 and 16, 2020, indicated that Reba’s skin had a “mild erythema over [left] side of

dorsum, no alopecia/other lesions.” State’s Ex. 1, Medical History, p. 7-9. However,

after Reba was impounded and examined for abuse in October 2020, it was noted that

Reba’s skin had “sore lateral aspect of 4th digit on [left] front foot; sores lateral and

medical aspects of both hocks, alopecia/happy tail distal tail tip (not actively bleeding

during exam).” Id. at p. 5. -7-

Dustin Jennings

{¶ 13} Jennings testified that he and his ex-girlfriend, Jones, had adopted Reba in

December 2019. Jennings did not dispute that Reba was in his care during the time

period in question, as he testified that he and Jones had separated in April 2020 and that

Jones had moved into an apartment complex that did not permit pets. Jennings testified

that Reba had always been skinny and that the lesions on her body had been present

when he and Jones adopted her. Jennings testified that at the time of Reba’s adoption,

he was told that the lesions were possibly scars from prior abuse.

{¶ 14} Jennings testified that Reba had been loose for three or four days before

she was impounded at the MCARC in October 2020. Jennings testified that Reba had

escaped two other times as well but was loose for no more than six hours on those

occasions. Jennings claimed that Reba usually slept on his couch, recliner, or bed, and

that she rarely slept on the floor.

{¶ 15} Jennings testified that he could not get the Northridge records for Officer

Baker because Northridge would only release them to Depew. According to Jennings,

Depew kept giving him excuses as to why he could not get the records, which led to his

and Depew having a falling out. Jennings testified that he took Reba to another

veterinary clinic on “North Dixie” three or four times. Jennings, however, could not

account for any visits to that clinic during the time period in question. Jennings could

only account for visits between January and May 2020.

{¶ 16} Jennings testified that, in an effort to get Reba to gain weight, he fed Reba

table scraps and more dog food than was recommended. Jennings also testified to -8-

feeding Reba dietary supplements for her arthritis. Jennings testified that Reba did not

gain wait despite eating what he fed her. Jennings testified that there was no possibility

that his other dog, Harley, was eating Reba’s food, as Jennings explained that he fed

Reba separately in her cage and that Reba would “scar[f] down her food” by the time he

fed Harley. Trial Tr. p. 62.

Dr. Kotouch Recalled to Testify

{¶ 17} Following Jennings’s testimony, the trial court recalled Dr. Kotouch to the

witness stand and asked, based on her experience, whether it was reasonable to expect

Reba to be as thin as she was if she was being fed all the time and fed in excess of what

was recommended. In response, Dr. Kotouch indicated that if Reba had been properly

fed, she would have been a reasonable weight and not in the emaciated condition she

was in when impounded.

Verdict and Sentence

{¶ 18} The trial court took the matter under advisement and then found Jennings

guilty as charged in the complaint. For the count of cruelty against a companion animal,

the trial court sentenced Jennings to 90 days in jail with 80 days suspended and

probation. The trial court also ordered Jennings to pay court costs, a $250 fine, and

restitution to the MCARC in the amount of $255. The trial court further ordered Jennings

to attend a one-day animal cruelty class and to have no companion animals for five years,

with the exception of his current dog Harley. For the count of depriving a companion -9-

animal of necessary sustenance, the trial court sentenced Jennings to 90 days in jail with

80 days suspended and ordered that sentence to be served concurrently with his other

jail term.

{¶ 19} Jennings now appeals from both of his convictions, raising a single

assignment of error for review.

Assignment of Error

{¶ 20} Under his sole assignment of error, Jennings contends that his convictions

for cruelty against a companion animal and depriving a companion animal of necessary

sustenance were against the manifest weight of the evidence. We disagree.

{¶ 21} “A weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” (Citation omitted.) State v. Wilson, 2d Dist. Montgomery No.

22581, 2009-Ohio-525, ¶ 12. When evaluating whether a conviction is against the

manifest weight of the evidence, the appellate court must review the entire record, weigh

the evidence and all reasonable inferences, consider witness credibility, 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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541

(1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 22} A judgment of conviction should be reversed as being against the manifest

weight of the evidence only in exceptional circumstances. Martin at 175. “The fact that -10-

the evidence is subject to different interpretations does not render the conviction against

the manifest weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013-CA-

61, 2013-CA-62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶14. “The decision whether,

and to what extent, to credit the testimony of particular witnesses is within the peculiar

competence of the factfinder, who has seen and heard the witness.” State v. Lawson,

2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). Therefore, this

court will not substitute its judgment for that of the trier of fact on the issue of witness

credibility unless it is patently apparent that the trier of fact lost its way in arriving at its

verdict. Wilson at ¶ 17.

{¶ 23} As previously discussed, Jennings was convicted of cruelty against a

companion animal in violation of R.C. 959.131(D)(1), which provides that: “No person who

confines or who is the custodian or caretaker of a companion animal shall negligently * * *

[t]orture, torment, or commit an act of cruelty against the companion animal[.]” The terms

“cruelty,” “torment,” and “torture” include “every act, omission, or neglect by which

unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue,

when there is a reasonable remedy or relief[.]” R.C. 959.131(A)(2) and R.C. 1717.01(B).

Jennings was also convicted of depriving a companion animal of necessary sustenance

in violation of R.C. 959.131(D)(2), which provides that: “No person who confines or who

is the custodian or caretaker of a companion animal shall negligently * * * [d]eprive the

companion animal of necessary sustenance * * * [.]”

{¶ 24} In support of his appeal, Jennings is not challenging the sufficiency of the

evidence that was used to convict him of the aforementioned offenses. Indeed, when -11-

viewing the testimony and evidence in a light most favorable to the prosecution, it

sufficiently established that in the fall of 2020, Jennings neglected to take Reba, his

companion animal, for medical treatment despite her being severely emaciated and

having sores on her legs, tail, and paws. The evidence also established that Reba’s

emaciated condition quickly improved after she was treated at the MCARC and removed

from Jennings’s care. Dr. Kotouch’s testimony that Reba would not have been as thin

as she was if properly fed was also sufficient to establish that Jennings was depriving

Reba of necessary sustenance.

{¶ 25} Jennings, however, contends that his convictions were against the manifest

weight of the evidence because the trial court erroneously chose to believe Dr. Kotouch’s

testimony over his. This argument lacks merit, as it is well established that “ ‘[a] verdict

is not against the manifest weight of the evidence [simply] because the finder of fact chose

to believe the State’s witnesses rather than the defendant’s version of the events.’ ”

State v. McCary, 2d Dist. Montgomery No. 28250, 2019-Ohio-4596, ¶ 33, quoting State

v. Oswald, 9th Dist. Summit No. 28633, 2018-Ohio-245, ¶ 25. (Other citations omitted.)

“[I]n a bench trial, ‘the trial judge is best able to view the witnesses and observe their

demeanor, gestures and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.’ ” Emswiler v. Bodey, 2d Dist. Champaign No.

2012-CA-3, 2012-Ohio-5533, ¶ 44, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio

St.3d 77, 80, 461 N.E.2d 1273 (1984). Accord State v. Myers, 2d Dist. Darke No. 2019-

CA-22, 2020-Ohio-4325, ¶ 23. Therefore, “we defer to trial court decisions on credibility

issues, as those courts are in the best position to make that determination.” Myers at -12-

¶ 23, citing Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, at *4.

{¶ 26} Upon review, we find that the trial court's decision to rely on Dr. Kotouch’s

testimony over Jennings’s testimony was sound and did not create a manifest miscarriage

of justice. We also find that the evidence did not weigh heavily against finding Jennings

guilty of cruelty against a companion animal and depriving a companion animal of

necessary sustenance. Therefore, Jennings’s convictions for those offenses were not

against the manifest weight of the evidence.

{¶ 27} Jennings’s assignment of error is overruled.

Conclusion

{¶ 28} Having overruled Jennings’s sole assignment of error, the judgment of the

trial court is affirmed.

DONOVAN, J. and LEWIS, J., concur.

Copies sent to:

Erik R. Blaine Steven H. Eckstein Hon. Robert Edward Messham, Jr., Visiting Judge