[Cite as State v. Graves, 2017-Ohio-6942.]




                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             WARREN COUNTY




STATE OF OHIO,                                     :
                                                         CASE NO. CA2016-11-096
        Plaintiff-Appellee,                        :
                                                               OPINION
                                                   :            7/24/2017
    - vs -
                                                   :

JOHN O. GRAVES,                                    :

        Defendant-Appellant.                       :



                    CRIMINAL APPEAL FROM WARREN COUNTY COURT
                               Case No. 2016CRB000632



David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036, for plaintiff-appellee

Thomas W. Condit, P.O. Box 12700, Cincinnati, Ohio 45212, for defendant-appellant



        M. POWELL, J.

        {¶ 1} Defendant-appellant, John O. Graves, appeals his conviction in the Warren

County Court for cruelty to animals.

        {¶ 2} On June 26, 2016, appellant took his stepson's Yellow Labrador (the "dog") with

him and drove to a Kroger store to pick up a prescription and a few other items. The weather

that day was clear and sunny, with high humidity and a temperature in the low 90s. Appellant
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ran the air conditioning in his van on the way to Kroger, located about two miles from his

house. Upon arriving at Kroger, appellant parked his van in an unshaded spot on the black-

top parking lot, turned off the van, locked it, and entered Kroger, leaving the dog in the van.

The van's windows were completely closed. Appellant estimated he arrived at Kroger shortly

after noon.1

        {¶ 3} Between noon and 12:05 p.m., Tyler and Christine Saxton parked their car on

the Kroger parking lot behind appellant's van. Appellant was already inside Kroger. Upon

parking their car, the Saxtons noticed the dog in the van. The dog was staring at them,

looked "apathetic," and was "panting a little bit." Concerned, given the weather conditions

and the fact the van's windows were not opened, the Saxtons entered Kroger to inform

customer service of the dog in the van.

        {¶ 4} Because there was a long line at the customer service desk, Mr. Saxton went

directly to the desk and announced loudly that there was a dog in a white van with the

windows sealed on the parking lot. Appellant, who was in line at the customer service desk

or in the vicinity, heard Mr. Saxton and told him that it was his van. Mr. Saxton told appellant

that it was too hot to leave a dog in a sealed van and that he needed to let the dog out.

Appellant replied that "he does it all the time and he knows how his dog can be." Appellant

and Mr. Saxton continued to debate the matter for a few minutes until appellant told Mr.

Saxton that it was none of his business. Appellant then proceeded to run his errands in

Kroger. Store receipts show that he paid for his prescription at 12:21 p.m. and his groceries

at 12:44 p.m.

        {¶ 5} Meanwhile, Mrs. Saxton called 9-1-1 to report the dog in a sealed van. The

Saxtons then walked back to the van to wait for the police. By then, it had become hotter


1. Appellant later changed his testimony and based on Kroger receipts and his belief he was away from his van
for a total of 32 minutes, estimated he probably arrived at Kroger "very close to 12:14 [p.m.]."
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outside. In fact, it was so hot and humid that while waiting for the police to arrive, the

Saxtons "were both sweating [themselves] standing out" and Mr. Saxton's "shirt was

completely soaken wet from me standing out there." The dog was still panting, was "sitting

very still, not moving much," and looked "very apathetic." Very concerned, the Saxtons

attempted to open the van doors but found that they were locked.

       {¶ 6} Hamilton Township Police Officer Katie Goodpaster was dispatched to the

scene and arrived there at approximately 12:19 p.m. The officer observed that "there was a

yellow lab inside a vehicle that was not running, all the windows were completely rolled up,

[and] there didn't appear to be any air flow [in the van]." The dog was panting, appeared to

be lethargic, was "sitting slouched up against the back seat [and] wasn't moving at all."

Officer Goodpaster and another officer waited another five or six minutes for appellant to exit

Kroger. During this time, the dog's panting became more strenuous and she lay down.

Concerned for the safety of the dog and with appellant nowhere in sight, the officers

unlocked the van, removed the dog, and placed her in an air-conditioned police cruiser. In

removing the dog from the van, Officer Goodpaster noted that it was "considerably warmer

inside the vehicle than standing outside of it." The weather channel application on her phone

indicated that the temperature was 92 degrees outside but feeling like 98 degrees with the

humidity. Officer Goodpaster did not observe any water in the van for the dog.

       {¶ 7} Appellant finally exited Kroger at 12:45 p.m. Appellant told the other officer that

"he knew his dog, she'd been left out in the car in the heat before and that he didn't realize

he'd been in the store for that long." Officer Goodpaster issued appellant a citation for cruelty

to animals.

       {¶ 8} On July 11, 2016, appellant was charged by criminal complaint with cruelty to

animals in violation of R.C. 959.13(A)(3). The matter proceeded to a bench trial on August

30, 2016. At trial, Officer Goodpaster and the Saxtons testified on behalf of the state.
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Appellant testified on his own behalf. The officer testified that some dogs can tolerate and

handle heat better than others, and that larger and/or older dogs typically do not handle heat

as well as smaller and/or younger dogs.

       {¶ 9} Appellant explained he left the dog in a sealed car because he was afraid

someone might steal her, and that by his own account, he was away from the van for only 32

minutes. Appellant testified that on prior occasions he had successfully left the dog in a

vehicle for 15 to 30 minutes while he ran errands. Appellant further testified that a dog would

survive in 92 degrees indefinitely and that dogs have higher temperatures than human beings

and can easily stand heat. Finally, appellant described how he performed an experiment with

an indoor thermometer after he returned home. Specifically, appellant parked the van in

direct sunlight and placed the thermometer in the back seat at approximately 1:00 p.m. As

the air conditioning had run between Kroger and his home, the initial temperature inside the

van was 72 degrees. Appellant stated that the temperature inside the van rose to 92

degrees after an hour and that "at the 45 minutes period, which would have exceeded the

time the dog was in the car it was 88 degrees."

       {¶ 10} Following the state's presentation of its case-in-chief, appellant moved for a

Crim.R. 29 acquittal. The trial court denied the motion. Appellant renewed his motion at the

conclusion of the trial. Then, in closing arguments, appellant challenged the constitutionality

of R.C. 959.13(A)(3), arguing it was void for being vague and overbroad. The trial court took

the matter under advisement.

       {¶ 11} On September 2, 2016, the trial court found appellant guilty of cruelty to

animals. The trial court subsequently sentenced appellant to five days in jail, which were

suspended, and to non-reporting probation for six months, and ordered him to pay court

costs and a $250 fine.

       {¶ 12} Appellant now appeals, raising one assignment of error:
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       {¶ 13} THE TRIAL COURT ERRED BY FINDING DEFENDANT GUILTY OF

CRUELTY TO ANIMALS UNDER R.C. §959.13(A)(3).

       {¶ 14} In his single assignment of error, appellant challenges his conviction for cruelty

to animals on two grounds. First, appellant argues that R.C. 959.13(A)(3) is unconstitutional

because the statute is void for vagueness as applied to him and overbroad. Second,

appellant argues his conviction is not supported by sufficient evidence and is against the

manifest weight of the evidence because the state failed to prove two elements of the

offense.

       {¶ 15} R.C. 959.13(A)(3) provides that "[n]o person shall * * * [c]arry or convey an

animal in a cruel or inhuman[e] manner." R.C. 959.13 does not define "cruelty." However,

R.C. 1717.01 sets forth definitions that apply to "every law relating to animals" and defines

"cruelty" as "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. 1717.01(B). Because R.C. 959.13 does not specify the mental state required to

commit the offense, the state is required to prove the defendant acted recklessly. State v.

Paul, 5th Dist. Ashland No. 16-COA-036, 2017-Ohio-4054, ¶ 19; State v. McClure, 12th Dist.

Warren No. CA93-01-007, 1993 Ohio App. LEXIS 5034, *4 (Oct. 18, 1993).

       {¶ 16} In his first issue, appellant challenges his conviction for cruelty to animals,

arguing that R.C. 959.13(A)(3) is unconstitutional because the statute is void for vagueness

as applied to him and overbroad.

       {¶ 17} Legislative enactments are afforded a strong presumption of constitutionality.

State v. Collier, 62 Ohio St.3d 267, 269 (1991). Consequently, "courts must apply all

presumptions and pertinent rules of construction so as to uphold, if at all possible, a statute

or ordinance assailed as unconstitutional." State v. Dorso, 4 Ohio St.3d 60, 61 (1983); State

v. Worst, 12th Dist. Butler No. CA2004-10-270, 2005-Ohio-6550, ¶ 41. When a statute is
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alleged to be void for vagueness, all doubts are to be resolved in favor of the constitutionality

of the statute. State v. Harrington, 159 Ohio App.3d 451, 2004-Ohio-7140, ¶ 20 (12th Dist.).

       {¶ 18} Constitutional challenges to a statute involve facial challenges as well as

challenges to the application of the statute. The two types of challenges require different

standards of proof. State ex rel. Ohio Congress of Parents & Teachers v. State Bd. Of Edn.,

111 Ohio St.3d 568, 2006-Ohio-5512, ¶ 21. "To prevail on a facial constitutional challenge,

the challenger must prove the constitutional defect * * * beyond a reasonable doubt." Id. "To

prevail on a constitutional challenge to the statute as applied, the challenger must present

clear and convincing evidence of the statute's constitutional defect." Id.

       {¶ 19} Appellant argues that R.C. 959.13(A)(3) is void for vagueness as applied to him

because the statute "fails to give reasonable notice that keeping a dog in a warming car for a

short period constitutes criminal behavior, especially when the dog suffers no harm."

       {¶ 20} A vague statute is one "which either forbids or requires the doing of an act in

terms so vague that men of common intelligence must necessarily guess at its meaning and

differ as to its application." State v. Phipps, 58 Ohio St.2d 271, 273 (1979). In order to

survive a void-for-vagueness challenge, the statute at issue must be written so that a person

of common intelligence is able to determine what conduct is prohibited, and the statute must

provide sufficient standards to prevent arbitrary and discriminatory enforcement. State v.

Williams, 88 Ohio St.3d 513, 532 (2000). A statute will not be declared void, however,

merely because it could have been worded more precisely. Id.

       {¶ 21} "In an as-applied challenge, the challenger contends that application of the

statute in the particular context in which he has acted, or in which he proposes to act, [is]

unconstitutional." State v. Carrick, 131 Ohio St.3d 340, 2012-Ohio-608, ¶ 16. An as-applied

challenge contends that the statute is unconstitutional as applied to the challenger's activity,

even though the statute may be capable of valid application to others. Worst, 2005-Ohio-
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6550 at ¶ 42. Thus, an as-applied challenge focuses on the particular application of the

statute. Carrick at ¶ 16.

       {¶ 22} The Fifth Appellate District recently addressed whether R.C. 959.13(A)(3) was

void for vagueness. State v. Johnson, 5th Dist. Licking No. 14-CA-54, 2015-Ohio-1110. In

Johnson, the defendants were convicted of violating R.C. 959.13(A)(3) for transporting 62

dogs in several stacked cages in a minivan. Authorities became involved after the minivan

broke down and was towed to a motel. The appellate court found that R.C. 959.13(A)(3) was

not unconstitutionally vague, stating

              Appellants argue they were without notice that transporting
              several dogs together in one cage would be in violation of the
              statute. Appellants were transporting sixty-two dogs in several
              cages in a Dodge Caravan minivan. The call to authorities
              regarding the transport issue was made by a lay person, a clerk
              at the Red Roof Inn, who recognized the inhumaneness of the
              situation.

              We find the definition of "cruelty" not to be overbroad such that a
              reasonably situated person would not know transporting sixty-two
              dogs in several cages in a small confined area of a minivan
              would be cruel.

Id. at ¶ 18-19. See also State v. Hafle, 52 Ohio App.2d 9 (1st Dist.1977), paragraph one of

the syllabus (R.C. 959.13, prohibiting cruelty to animals, gives fair notice that the conduct

described is forbidden and such statute is not unconstitutional for vagueness).

       {¶ 23} As stated above, when a party challenges a statute as unconstitutional as

applied to a particular set of facts, "the party making the challenge bears the burden of

presenting clear and convincing evidence of a presently existing set of facts that makes the

statute unconstitutional and void when applied to those facts." Harrold v. Collier, 107 Ohio

St.3d 44, 2005-Ohio-5334, ¶ 38. Appellant has failed to meet his burden. Given the weather

conditions on June 26, 2016, and the fact the van was parked in an unshaded black-top

parking lot, a person of ordinary intelligence would understand that leaving a dog locked in a


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sealed vehicle for over 40 minutes was cruel and inhumane. Animal cruelty does not consist

solely of active cruelty. Passive cruelty and neglect are also punishable under the statute.

State v. Myers, 87 Ohio App.3d 92, 96 (9th Dist.1993).

       {¶ 24} Appellant nonetheless asserts that R.C. 959.13(A)(3) is unclear and vague

because it provides absolutely no "guidance" to citizens as "exposed by a few hypothetical –

but very relevant questions," such as at what temperature and for how long can one leave a

dog in a sealed vehicle, whether humidity is a variable one should consider, whether the size

of the dog matters, and whether windows cracked open would make a difference. However,

we are concerned not with the various hypotheses appellant advances but with an actual

situation. In addition, as the Ohio Supreme Court stated, "most statutes must deal with

untold and unforeseen variations in factual situations, and the practical necessities of

discharging the business of government inevitably limit the specificity with which legislators

can spell out prohibitions." Collier, 62 Ohio St.3d at 270. "[T]o be enforceable, legislation

need not be drafted with scientific precision." Id.

       {¶ 25} The danger of leaving an animal locked in a sealed vehicle in hot and humid

conditions is well-known. It is significant that upon observing the dog's behavior in the van,

the Saxtons were immediately concerned and brought these concerns directly to the attention

of appellant who ignored them. Further, the statute provides sufficient guidance to the

authorities so that enforcement is not subject to their unfettered discretion. Clearly, the

authorities did not charge appellant on a whim. Rather, upon arrival at the scene, they spoke

with the Saxtons as to their observations, observed the behavior of the dog locked in the van,

noted the weather conditions, waited a short period for appellant to exit Kroger before

removing the dog from the van, and noted that the interior temperature of the van was hotter

than the outside temperature.

       {¶ 26} We therefore find that R.C. 959.13(A)(3) and the definition of "cruelty" are not
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so unclear that appellant could not reasonably understand that it prohibited the acts in which

he engaged, nor is the statute unconstitutional as applied to his conduct.

       {¶ 27} Appellant next argues that R.C. 959.13(A)(3) is unconstitutionally overbroad

because it creates criminal liability for leaving a family pet in a warming vehicle.

       {¶ 28} In considering an overbreadth challenge, a court must decide "whether the

[statute] sweeps within its prohibitions what may not be punished under the First and

Fourteenth Amendments." Akron v. Rowland, 67 Ohio St.3d 374, 387 (1993). In order to

demonstrate facial overbreadth, the party challenging the statute must show that its potential

application reaches a significant amount of protected activity. Id. A statute is substantially

overbroad if it is "susceptible of regular application to protected expression." Id. A statute

will be invalidated as overbroad only when its overbreadth has been shown by the defendant

to be substantial. State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, ¶ 8.

       {¶ 29} We first note that in addition to finding that R.C. 959.13(A)(3) was not

unconstitutionally vague, the Fifth Appellate District further found the statute was not

unconstitutionally overbroad. Johnson, 2015-Ohio-1110 at ¶ 19. As Rowland indicates

above, an overbreadth challenge usually involves an infringement upon First Amendment

rights or rights protected by the Fourteenth Amendment.             The application of R.C.

959.13(A)(3) does not prevent or inhibit the exercise of a First Amendment right, and

appellant does not so argue. Rather, in a footnote in his brief, appellant "relies on his

Fourteenth Amendment right to travel as a basis for his overbreadth defense," "having been

convicted for how he 'carried' or 'conveyed' an animal."

       {¶ 30} Appellant fails, however, to conduct any analysis in support of his argument.

See App.R. 16(A)(7); State v. Richardson, 12th Dist. Clermont Nos. CA2014-03-023,

CA2014-06-044, and CA2014-06-045, 2015-Ohio-824. While the right to travel is a liberty

interest protected from state interference under the Fourteenth Amendment, R.C.
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959.13(A)(3) does not infringe in any respect upon appellant's right to travel or to transport

animals as he travels. See State v. Burnett, 93 Ohio St.3d 419 (2001) (addressing the right

to travel); Akron v. Tipton, 53 Ohio Misc.2d 18 (M.C.1989) (dogs do not have a

constitutionally protected right to travel under the United States and Ohio Constitutions).

Rather, the statute merely regulates the manner in which animals are to be transported.

Thus, appellant was not engaged in protected activity under the First or Fourteenth

Amendment when on June 26, 2016, on a sunny and very humid day, he left the dog in a

sealed van in 92-degree heat for over 40 minutes.

       {¶ 31} In light of the foregoing, we find that appellant has failed to establish that R.C.

959.13(A)(3) is unconstitutionally vague as applied to him or overbroad.

       {¶ 32} In his second issue, appellant argues his conviction for cruelty to animals is not

supported by sufficient evidence and is against the manifest weight of the evidence because

the state failed to prove he acted recklessly by leaving the dog in his van or that the dog

suffered any harm as a result.

       {¶ 33} When reviewing the sufficiency of the evidence underlying a criminal conviction,

an appellate court examines the evidence to determine whether such evidence, if believed,

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

v. Petit, 12th Dist. Madison No. CA2016-01-005, 2017-Ohio-633, ¶ 13. 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." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶ 34} A manifest weight of the evidence challenge, on the other hand, examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather than the other." Petit at ¶ 14. To determine whether a conviction is

against the manifest weight of the evidence, the reviewing court must look at the entire
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record, weigh the evidence and all reasonable inferences, consider the credibility of the

witnesses, and determine whether in resolving the 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. Id. An appellate court will overturn a conviction

due to the manifest weight of the evidence only in extraordinary circumstances when the

evidence presented at trial weighs heavily against the conviction. Id.

       {¶ 35} Although the legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different, "[a] determination that a conviction

is supported by the manifest weight of the evidence will also be dispositive of the issue of

sufficiency." State v. Goodwin, 12th Dist. Butler No. CA2016-05-099, 2017-Ohio-2712, ¶ 25.

       {¶ 36} As stated above, the state was required to prove appellant acted recklessly in

leaving the dog in the van. R.C. 2901.22(C) provides that

              A person acts recklessly when, with heedless indifference to the
              consequences, the person disregards a substantial and
              unjustifiable risk that the person’s 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.

Thus, the state was required to show appellant acted with "heedless indifference to the

consequences" or perversely disregarded a known risk that his conduct was likely to cause a

certain result or to be of a certain nature. State v. Centers, 12th Dist. Warren No. CA92-12-

107, 1993 Ohio App. LEXIS 4076, *5 (Aug. 23, 1993).

       {¶ 37} Upon a thorough review of the record, we find that appellant's conviction for

cruelty to animals is supported by sufficient evidence and is not against the manifest weight

of the evidence. The state presented testimony and evidence from which the trial court could

have found all the essential elements of the offense proven beyond a reasonable doubt.


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       {¶ 38} The state presented evidence that on June 26, 2016, appellant parked his van

around noon in an unshaded, black-top parking lot and subsequently left the dog in the van

for over 40 minutes while he ran errands in Kroger. It was a hot, humid, clear, and sunny day

with temperatures in the low 90s. The humidity was so high that while waiting for the police

next to the van, the Saxtons were both sweating and Mr. Saxton's "shirt was completely

soaken wet from me standing out there." The van was not running, its windows were

completely closed, and there was no water inside the van for the dog. The entire time the

dog was in the van, the dog was not active at all, was either just sitting slouched up against

the backseat or lying, and was lethargic and panting. Upon removing the dog from the van,

Officer Goodpaster noted that the temperature inside the van was "considerably warmer"

than the temperature outside the van. "Excessive heat or sunlight is a legitimate factor to

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

circumstances." Paul, 2017-Ohio-4054 at ¶ 20. Appellant's testimony that on prior occasions

he had successfully left the dog in a vehicle for 15 to 30 minutes while he ran errands further

shows that appellant acted recklessly. See In re L.Z., 5th Dist. Licking No. 15-CA-36, 2016-

Ohio-1337 (mental state "recklessness" assumes that the actor intends the act, but not the

harm). Additionally, during the exchange at the Kroger customer service desk, Mr. Saxton

brought directly to appellant's attention the danger of leaving the dog in a sealed vehicle in

the existing weather conditions. Given these facts, the trial court was entitled to find

appellant acted recklessly by leaving the dog in the van.

       {¶ 39} Appellant further asserts the state failed to prove the dog suffered any harm as

a result of being left in the van. However, harm is not an element of the offense. Rather,

R.C. 1717.01(B) only requires the state to prove that "unnecessary or unjustifiable pain or

suffering [was] caused, permitted, or allowed to continue, when there [was] a reasonable

remedy or relief." The state presented evidence that while locked in the van for over 40
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minutes, the dog was not active at all, was either just sitting slouched up against the

backseat or lying, and was lethargic and panting, and that her panting became more

strenuous over time.      Thus, the evidence supports a finding that the dog suffered

unnecessarily and that appellant allowed the suffering to continue when there was a

reasonable remedy.

       {¶ 40} In finding appellant guilty of cruelty to animals, the trial court was entitled to

discredit his testimony and believe the testimony of Officer Goodpaster and the Saxtons.

"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. Rhines, 2d Dist. Montgomery No. 23486, 2010-Ohio-3117, ¶ 39. "[W]hen conflicting

evidence is presented at trial, a conviction is not against the manifest weight of the evidence

simply because the trier of fact believed the prosecution testimony." State v. Lunsford, 12th

Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶ 17.

       {¶ 41} We therefore find that appellant's conviction for cruelty to animals is not against

the manifest weight of the evidence and is supported by sufficient evidence. Appellant's

assignment of error is overruled.

       {¶ 42} Judgment affirmed.


       S. POWELL, P.J., and PIPER, J., concur.




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