State v. Joiner

2021 Ohio 359

• Court: Ohio Court of Appeals
• Decided: February 8, 2021
• Docket: 2020 CA 00016
• Status: Published

Opinion

[Cite as State v. Joiner, 2021-Ohio-359.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : HEATHER MARIE JOINER : Case No. 2020 CA 00016 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Municipal Court, Case No. 2019 CRB 05016

JUDGMENT: Affirmed

DATE OF JUDGMENT: February 8, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

BRITTANY M. FLETCHER D. COLEMAN BOND 218 Cleveland Avenue SW 600 Courtyard Centre Canton, OH 44702 116 Cleveland Avenue NW Canton, OH 44702 Stark County, Case No. 2020 CA 00016 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant Heather Joiner appeals the December 11, 2019

judgment of conviction and sentence of the Canton Municipal Court, Canton, Ohio.

Plaintiff-appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On August 29, 2019, Canton Police Officer Christina Paumier was

dispatched to appellant's home in response to an animal welfare check. According to

Tammy Pribula, the neighbor who had reported the matter, appellant's four dogs, two pit

bulls and two small breed dogs, had been left outside all day in the 80-deegree heat with

no water, food, or means to seek shelter from the sun and heat.

{¶ 3} Upon arrival Officer Paumier noted the odor of animal feces emanating from

the residence before she even exited her cruiser. At the side of the house Paumier saw

an emaciated pit bull mix tied to a fence and tangled in its 5-6 foot tether. At the rear of

the home she discovered another pit bull in similar condition, also tied to a fence and

wrapped up in its tether. Paumier also observed two small dogs in the back yard. These

dogs were in better physical condition than the pit bulls, but were confined together in a

small cage. All of the dogs were confined in the sun without the ability to seek shade and

without water. Given her observations, Paumier requested a humane officer.

{¶ 4} Stark County Humane Agent Ryan Fowler was dispatched to the scene.

Upon arrival he observed the poor condition of the pit bulls, the fact that none of the dogs

had access to water or shelter from the sun, and made the decision to remove the dogs

from the property. He transported the animals to the Stark County Humane Society. Stark County, Case No. 2020 CA 00016 3

{¶ 5} Dr. Kimberly Carter assessed the animals following their arrival at the

Humane Society. On a body condition scale of one to nine, with four to five being ideal,

the pit bulls were both scored a two, which is very thin. In her opinion, these dogs had

gone without adequate food for weeks. It was also Dr. Carter's opinion that dogs in this

state could be brought to a healthy weight within a couple weeks. Dr. Carter found the

two smaller dogs to be at a healthy weight. She also found the dogs to be mildly

dehydrated but not dangerously so.

{¶ 6} As a result of this investigation, appellant was charged with four counts of

cruelty to animals in violation of R.C. 959.13. Appellant pleaded not guilty and opted to

proceed to a jury trial which took place on December 10, 2019. The above facts were

elicited by the state and appellant testified on her own behalf.

{¶ 7} Appellant testified she owned the two smaller dogs and the pit bulls initially

belonged to her ex-boyfriend. But because he failed to provide care for the dogs, she took

responsibility for the dogs. She further testified the pit bulls did not come to her home until

July. This testimony was contrary to that of appellant's neighbor and Humane Agent

Fowler who stated the dogs had been there since April or May.

{¶ 8} After hearing all the evidence and deliberating, the jury found appellant

guilty as charged.

{¶ 9} Appellant was subsequently sentenced to 90 days local incarceration. The

trial court granted a stay of sentence pending the outcome of this appeal. Appellant raises

three assignments of error as follow:

I Stark County, Case No. 2020 CA 00016 4

{¶ 10} "WHETHER THE APPELLANT WAS ENTITLED TO A JUDGMENT OF

ACQUITTAL ON THE CHARGE OF CRUELTY TO ANIMALS IN VIOLATION OF

R.C.959.13 BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN A

CONVICTION BEYOND A REASONABLE DOUBT?"

II

{¶ 11} "WHETHER THE EVIDENCE PRESENTED WAS INSUFFICIENT TO

SUSTAIN A CONVICTION FOR THE OFFENSE OF CRUELTY TO ANIMALS IN

VIOLATION OF R.C. 959.13 BEYOND A REASONABLE DOUBT?"

III

{¶ 12} "WHETHER THE APPELLANT'S CONVICTION IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE AND MUST BE REVERSED?"

I, II, III

{¶ 13} Because appellant's arguments are interrelated, we address them together.

In her three assignments of error, appellant claims the trial court erred in denying her

Crim.R. 29 motion for acquittal, and that her convictions are against the sufficiency and

manifest weight of the evidence. We disagree.

Motion for Acquittal

{¶ 14} Crim.R. 29 governs motion for acquittal. Subsection (A) states the

following:

The court on motion of a defendant or on its own motion, after the

evidence on either side is closed, shall order the entry of a judgment

of acquittal of one or more offenses charged in the indictment, Stark County, Case No. 2020 CA 00016 5

information, or complaint, if the evidence is insufficient to sustain a

conviction of such offense or offenses. The court may not reserve

ruling on a motion for judgment of acquittal made at the close of the

state's case.

{¶ 15} The standard to be employed by a trial court in determining a Crim.R. 29

motion is set out in State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978),

syllabus: “Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of

acquittal if the evidence is such that reasonable minds can reach different conclusions as

to whether each material element of a crime has been proved beyond a reasonable

doubt.”

{¶ 16} Appellant was convicted of four counts of cruelty to animals pursuant to

R.C. 959.13(A)(1), one count for each dog. That section provides:

(A) No person shall:

(1) Torture an animal, deprive one of necessary sustenance,

unnecessarily or cruelly beat, needlessly mutilate of kill, or impound

or confine an animal without supplying it during such confinement

with a sufficient quantity of good wholesome food and water.

{¶ 17} The complaints filed in this matter specifically alleged appellant confined the

two small dogs outdoors on a hot day, exposed to the elements, and without food or Stark County, Case No. 2020 CA 00016 6

water. As for the two pit bulls, the complaints alleged appellant confined the dogs outdoors

without food and water as well as depriving the dogs of necessary sustenance as

evidenced by their emaciated appearance.

{¶ 18} Appellant argues the trial court erred in denying her Crim.R. 29 motion for

acquittal at the close of state's evidence. Appellant specifically argues the state failed

during its case in chief to prove she owned the dogs or was responsible for their care.

Upon examination of the record, we note several points during the state's case in chief

wherein ownership of the dogs was discussed.

{¶ 19} First, Officer Christina Paumier testified she had previous interactions with

appellant and was familiar with the two smaller dogs. These dogs had been identified to

Paumier as belonging to appellant. Transcript of Trial (T.) 99. Later in Officer Paumier's

testimony, she advised the two pit bulls had been the subject of a welfare check a month

before the instant matter. At that time, appellant advised the dogs were malnourished

because she had just obtained the animals several weeks prior. Appellant claimed they

were rescued from an abusive situation and she was fostering them. She was therefore

given a period of time to nurse the dogs back to health. T. 107.

{¶ 20} Next, Humane Officer Ryan Fowler testified when he made contact with

appellant in the instant matter, she stated the pit bulls had lived on her property for five

months but belonged to Shawn Taylor and he was responsible for their care. She stated

the two smaller dogs were hers. Fowler then spoke with Taylor who said he was the

caretaker for the two pit bulls. T. 135-136. Stark County, Case No. 2020 CA 00016 7

{¶ 21} Because Paumier and Fowler presented conflicting testimony, reasonable

minds could come to different conclusions as to the ownership of the pit bulls. The trial

court therefore did not err in denying appellant's Crim.R. 29 motion for acquittal.

Sufficiency and Manifest Weight

{¶ 1} Appellant further challenges the sufficiency and manifest weight of the

evidence. Appellant specifically argues the state failed to establish she acted recklessly,

and further failed to produce adequate credible evidence to support her convictions. We

disagree.

{¶ 2} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State v.

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

Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing court is to

examine 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 jury 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. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d

380, 678 N.E.2d 541 (1997). The granting of a new trial “should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.” Martin at

175. Stark County, Case No. 2020 CA 00016 8

{¶ 3} As an initial matter, in support of her arguments appellant cites several

cases involving animal abuse with facts far more dire and gruesome than the facts at

hand. She appears to urge because the facts herein were not as dire, they cannot

constitute abuse of animals. While we understand appellant's argument, we also note that

R.C. 959.13(A)(1) as charged here, does not require the animal's situation to be dire.

Rather, as charged here, it requires only that appellant recklessly confined her dogs

without providing them adequate food and water during their confinement, and deprived

the two larger dogs of adequate sustenance.

{¶ 4} Next, R.C. 2901.22(C) defines “recklessly” as follows:

A person acts recklessly when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable

risk that the persons conduct is likely to cause a certain result or is

likely to be of a certain nature. A person is reckless with respect to

circumstances when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable

risk that such circumstances are likely to exist.

{¶ 5} We have previously found “[e]xcessive heat or sunlight is a legitimate factor

to consider in determining whether a person was reckless in confining an animal under

the circumstances.” State v. Paul, 5th Dist. Ashland No. 16-COA-036, 2017-Ohio-4054,

¶ 20. Officer Paumier testified all four dogs were confined in the yard, either tethered or

caged in the sun on a day with temperatures around 80 degrees with no food or water. Stark County, Case No. 2020 CA 00016 9

She further testified there was no shelter provided for the dogs within which to escape the

heat and sun. T. 95-97. Humane Officer Fowler corroborated Paumier's observations,

and based on his own observations including the poor condition of the pit bulls, removed

the animals from the property. T. 124-128.

{¶ 6} Further, while appellant testified the dogs had been outside for only an hour

and a half when the humane office arrived at 6:00 p.m., Tammy Pribula, the neighbor who

called police regarding the matter indicated the dogs had been outside since 10:00 a.m.

T. 86-87, 214-215. Pribula further testified this was not unusual, and explained the pit

bulls were often tied up outside without water. In fact she and her sister had taken water

to the dogs on occasion. T. 85.

{¶ 7} The state further presented evidence that appellant had been responsible

for the care of the pit bulls for more than a month. T. 107. Appellant then testified that

although her ex-boyfriend brought the pit bulls to her home, she took responsibility for

them. T. 220.

{¶ 8} Certainly conflicting evidence was presented in this matter. However,

where conflicting evidence is introduced as to any of the elements necessary to constitute

a violation of the statute, a jury question is created. Tomlinson v. City of Cincinnati, 4 Ohio

St.3d 66, 69, 446 N.E.2d 454 (1983). Moreover, we are mindful that we must construe

the evidence in the light most favorable to the state in resolving a sufficiency challenge.

Jenks, 61 Ohio St.3d at 279, 574 N.E.2d 492.

{¶ 9} We find this evidence presented by the state sufficient to support a finding

that appellant acted recklessly. We further find this evidence sufficient to support Stark County, Case No. 2020 CA 00016 10

appellant's convictions as to the remaining elements of animal abuse, and find the jury

did not lose its way in sorting out issues of conflicting evidence and credibility.

{¶ 10} Appellant's three assignments of error are overruled.

{¶ 11} The judgment of the Canton Municipal Court is affirmed.

By Wise, Earle, J.

Delaney, P.J. and

Baldwin, J. concur.

EEW/