[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.]
