Animals

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

U.S. v. Stevens (2010), 130 S.Ct. 1577 – 18 U.S.C. ¶48, proscribing commercial depiction of animal cruelly, is unconstitutionally overbroad in violation of the First Amendment.
 
Youngstown v. Traylor, 123 Ohio St. 3d 132, 2009-Ohio-4184 – Syllabus: "Youngstown Codified Ordinances 505.19 is rationally related to the city‘s legitimate interest in protecting citizens from vicious dogs and therefore is constitutional." Ordinance was not breed-specific. Complaint was based on an actual attack by two unaccompanied Italian Mastiffs. Conviction required the city prove the animal is vicious or dangerous. Dissent complains the defendant got 90 days in jail without notice his animals were vicious.
 
State v. Coburn, 121 Ohio St. 3d 310, 2009-Ohio-834 – Syllabus: "A state wildlife officer may enter private land pursuant to R.C. 1531.13 when he or she has good cause to believe that a law is being violated, and may enter private land pursuant to R.C. 1531.14 without good cause when acting in the normal, peaceful, and lawful pursuit of the enforcement of the laws relating to game and fish." Wildlife officer entered private land to check a hunting license and returned later to investigate what appeared to be seed placed to lure migratory game birds. Case below: State v. Coburn, 176 Ohio App. 3d 600, 2008-Ohio-371.
 
Columbus v. Kim, 118 Ohio St. 3d 93, 2008-Ohio-1817 – Columbus animal noise ordinance is not unconstitutionally vague as the descriptive terms used give sufficient notice as to what level of noises are unreasonably loud or annoying. The court declines following State v. Ferraiolo (2000), 140 Ohio App. 3d 585 which found a similar ordinance impermissibly vague because the reasonableness of the noise is a subjective matter that varies from person to person.
 
State v. Pepin-McCaffrey, 186 Ohio App. 3d 548, 2010-Ohio-617 -- Intoxicated wife punched husband in the groin after he kicked their dog. At a bench trial the judge agreed with the prosecutor that self-defense required the filing of advance notice the defense will be raised. The judge blundered through self-defense in other ways. A dog may not be “another”, but it is personal property, and Ohio law recognizes defense of property. The judge also expressed the view the defense would ultimately be unable to meet its burden of proof on the defense and erroneously excluded evidence during the state’s case.
 
Akron v. Lewis, 179 Ohio App. 3d 649, 2008-Ohio-6256 – Akron vicious dog ordinances are determined to be indistinguishable from R.C. 955.22 as struck down in State v. Cowan, 103 Ohio St. 3d 114, 2004-Ohio-4777. Fault is failure to provide for review of dog warden‘s determination that a particular animal is a "dangerous dog."
 
State v. Chambers, 179 Ohio App. 3d 770, 2008-Ohio-6973 - Bones found under a porch led to conviction for possessing parts of a whitetail deer without proper tag, seal, or certificate of ownership. Evidence supported conviction.
 
Ohio Div. of Wildlife v. Kendrick, 180 Ohio App. 3d 662, 2009-Ohio-380 – When the defendant was sentenced in 1993 for 35 hunting-related offenses the court permanently revoked his right to obtain a hunting or fishing license, though at the time such penalty was not provided by statute. Fifteen years later he applied to have that portion of his sentence set aside. Ordinarily such a defect would not render the judgment voidable but not void, but applying State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197, the court is compelled to find the 1993 sentence is void.
 
Toledo v. Tellings, 114 Ohio St. 3d 278, 2007-Ohio-3724 -- The court accepts the trial court's conclusion that pit bulls are no more dangerous than other breeds but concludes singling out pit bulls in animal control measures is warranted because they have proven to cause a disproportionate amount of danger to people. The constitutional analysis is not rigorous, but the control measures are upheld through application of a rational relationship test.
 
State v. Murphy, 168 Ohio App. 3d 530, 2006-Ohio-4549 -- Under R.C. 955.11(A)(4)(a) "belongs to a breed that is commonly known as a pit bull dog" only creates a rebuttable presumption that such animals are "vicious dogs." Defendant's failure to obtain insurance and failure to confine convictions reversed based on unrebutted evidence as to the gentle nature of the animals in question.
 
State v. Bybee (1999), 134 Ohio App. 3d 393 -- 188 dogs were found in deplorable condition in defendant's care. (1) Expenses incurred by the Humane Society caring for animals removed from the defendant's home were not "property damage," and thus not the proper subject for a restitution order in a misdemeanor case pursuant to R.C. 2929.21(E). (2) The $117,625 she was ordered to pay in restitution was an in personam criminal forfeiture amounting to an excessive fine under the Eighth Amendment. (3) The six charges defendant was convicted of merged for the purposes of sentencing.
 
State v. Howell (2000), 137 Ohio App. 3d 804 -- Dog's owner drove off with leash attached to trailer hitch. (1) Reversible error not to instruct on accident with respect to cruelty to animals charge premised on torture. (2) No error in refusal to instruct jury on the lesser culpable mental state of negligence when the culpable mental state required for guilt was recklessness. Defense strategy was to show driving off with dog leashed to hitch was negligent but not reckless. (3) Tossing seriously injured dog into the bed of the pickup amounted to cruelty to animals premised on carrying or conveying an animal in a cruel or inhuman manner.
 
State v. Morrow (2000), 138 Ohio App. 3d 38 -- An Ohio livestock dealer's license is a public record for purposes of Evid. R. 803(8)(a). Though it is not self-authenticating, foundational requirements for admission are minimal. Testimony of investigator as to how he obtained the license and appearance of being an official form was sufficient.
 
State v. Ferraiolo (2000), 140 Ohio App. 3d 585 -- Barking dog ordinance found unconstitutionally vague. The terms "unreasonably loud sound" and "disturb" are too subjective. Besides, dogs bark. Also see Columbus v. Becher (1961), 115 Ohio App. 239. Compare Lebanon v. Wergowske (1991), 70 Ohio App. 3d 251.
 
State v. Cowan, Portage App. Nos. 2002-P-0029, 0030 and 0031, 2003-Ohio-3547, ¶ 17 -- The R.C. 955.11(A)(1) "definition of a 'dangerous dog' is narrowly enough drawn that a pet owner of ordinary intelligence should be able to determine the type of conduct that could cause her dog to be deemed a dangerous dog." But for such determination to be made at the discretion of the dog warden without an appeal mechanism is a denial of procedural due process. Affirmed: State v. Cowan, 103 Ohio St. 3d 144, 2004-Ohio-4777. View in the dissent is that this lack of a review mechanism nullifies the entire statute, including the containment obligations placed upon the owner of a dangerous dog. Also see Highland Heights v. Manos, Cuyahoga App. No. 84238, 2004-Ohio-6016; Cleveland v. Johnson, 130 Ohio Misc. 2d 17, 2005-Ohio-1638.
 
Gates Mills v. Welsh (2001), 146 Ohio App. 3d 368 -- One of four dogs made it through an invisible fence, scaring a neighbor. (1) No error in amending complaint from an M-1 under the city code to a minor misdemeanor under the Revised Code, even though it served to deny the defendant a jury trial. Court adopts the fiction that the original complaint was defective in that the penalty was excessive under the circumstances. (2) Bexley v. Selcer (1998), 129 Ohio App. 3d 72, distinguished as the leash law violation in that case required a negligent act while failure to control is a strict liability offense. (3) No relief afforded from claimed difficulty in complying with local fence and animal control laws. "Defendant just happened to have the misfortune of living near a person who had little patience for him and even less patience for his dogs."
 
Akron v. Marstellar, 155 Ohio App. 3d 132, 2003-Ohio-5608 -- The Akron dog-bite ordinance does not reach incidents on the property of the offending dog's owner, but does reach "premises which are not exclusively controlled by the owner." Incident happened on portion of the lawn by the street, over which the city had an easement. Though the defendant's ownership rights may have been limited, there was no evidence that he lacked exclusive control over that area at the time of the incident. Evidence held insufficient to support conviction.
 
State v. Fidler, 155 Ohio App. 3d 392, 2003-Ohio-6373 -- R.C. 1533.11(B) proscribing carrying the hunting permit of another is not unconstitutionally vague. Defendant claimed he carried is daughter's hunting license "to protect and care for his minor child," though she was not with him at the time he was charged.
 
State v. Walker, Greene App. No. 2003 CA 94, 2004-Ohio-7259 -- R.C. 955.22(D)(1) is construed not to require that a locked, fenced yard have a top.
 
State v. Walker, Greene App. No. 2003 CA 93, 2004-Ohio-7258 -- Though the defendant was not the owner of a dog seen at large, he could be convicted of failure to confine as he was the keeper or harborer of the dog. As a non-owner he did not have standing to appeal an order that the dog be surrendered to animal control.
 
State v. Walker, 164 Ohio App. 3d 114, 2005-Ohio-5592 -- In addition to a doberman, pit bull and a German shepherd, Walker had three bears. Efforts to address his control of the bears through his dog offense probation held to have been improper. Probation revocation, restitution order, and forfeiture order overturned.
 
Ohio Division of Wildlife v. Clifton (1997), 89 Ohio Misc. 2d 1, 9:
 
The court hereby announces a pearl,
It's sometimes OK to have a squirrel.
The legislature did a statute create,
The Wildlife Division obviously did not equate.
The necessity to be kind, thorough and specific,
The lack of these is legally terrific.
The result of this very short epistle,
The defendant/squirrel is granted a dismissal.
 
State v. Nichols (1997), 122 Ohio App. 3d 631 -- Dog control convictions reversed for want of a valid waiver of the right to counsel. Form entry covering arraignment covered advice as to rights, but the record did not establish a valid waiver encompassing the defendant's knowledge of the nature of the charges, the range of punishments, possible defenses, and being told she would be held to the rules of procedure and evidence even if unrepresented.
 
Bexley v. Selcer (1998), 128 Ohio App. 3d 72 -- Leash law ordinance did not impose strict liability. Evidence failed to establish recklessness as owner took appropriate steps to keep dog on property.
 
State v. Dresbach (1997), 122 Ohio App. 3d 647 -- Cruelty to animals conviction affirmed where charged was premised on dog not having been treated for worms.
 
State v. Bergen (1997), 121 Ohio App. 3d 459 -- Cruelty to animals conviction reversed where dog was left chained to a fence and died after wrapping leash around the trunk of a small tree, leaving food, water and shelter out of reach.
 
State v. Barker (1998), 128 Ohio App. 3d 233 -- (1) Squalid conditions at breeder's premises supported cruelty to animals convictions. (2) Theft by deception convictions affirmed where one customer ended up with something other than a 20-pound "cockapoo," notwithstanding breeder's civil judgment for the balance of the purchase price, and papers for another dog were suspect. (3) Forfeiture of dogs as a condition of probation, though exceeding scope of R.C. 959.99(D), is OK as far as this court is concerned, but because there is a conflict with the Tenth District, the question is sua sponte certified to the Supreme Court. Because the order of certification was never filed, the case never went to the Supreme Court.
 
State v. York (1997), Ohio App. 3d 226 -- Pregnant woman shot one of her horses in the head. Humane society officer came to investigate and spotted a malnourished Shetland Pony in the barn. (1) Though barn was part of the curtilage, peeking around tarp partially covering the door did not violate an expectation of privacy. (2) Officer did not have to observe the pony for fifteen hours before seizing it. (3) It was not cruel and unusual punishment to tell the defendant in court: "You are not going to have the daily jail menu. I want you to feel the hunger pains while you are in jail that you've let the animal feel," or to state in the entry: "A nutritional plan shall be approved by a licensed physician specializing in the practice of obstetrics. The Defendant shall not be permitted to eat or drink any food or beverage not necessary for her health or the health of her fetus."
 
State v. Mueller (1996), 113 Ohio App. 3d 627 -- Waving, whistling and yelling on land posted no hunting, with the consent of the owner of the land, is insufficient to establish harassment of hunters in violation of R.C. 1533.03(A)(2).
 
State v. Hileman (1998), 125 Ohio App. 3d 526 -- Expenses incurred by the Humane Society caring for animals removed from the defendant's home were not "property damage," and thus not the proper subject of a restitution order in a misdemeanor case pursuant to R.C. 2929.21(E).
 
State v. Lapping (1991), 75 Ohio App. 3d 354 -- Cruelty to twenty-eight head of cattle is twenty-eight separate offenses.
 

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Published by David L. Strait
 
Copyright © Franklin County Public Defender and David L. Strait, 2015
 
Contents may not be duplicated without express permission.

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