[Cite as State v. Cooper, 2020-Ohio-3748.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P. J.
        Appellee                                  Hon. John W. Wise, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-
                                                  Case No. 2019 CA 00102
BRANDON COOPER

        Appellant                                 OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Municipal Court,
                                               Case No. 18CRB00844


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        July 17, 2020



APPEARANCES:

For Appellee                                   For Appellant

AMY S. DAVISON                                 JERMAINE COLQUITT
NEWARK CITY LAW DIRECTOR                       33 West Main Street
40 West Main Street, Fourth Floor              Suite 109
Newark, Ohio 43055                             Newark, Ohio 43055
Licking County, Case No. 2019 CA 00102                                                     2


Wise, John, J.

       {¶1} Appellant, Brandon Cooper, appeals the judgment entered by the Licking

County Municipal Court convicting him of violating Newark Codified Ordinance

618.051(c)(1), prohibitions concerning companion animals, and sentencing him to ninety

days incarceration at the Licking County Justice Center, with 45 days suspended.

Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.

                          STATEMENT OF THE FACTS AND CASE

       {¶2} In April of 2018, Appellant killed his pit bull puppy, Buckeye, by shooting it

twice in the head with a nail gun.

       {¶3} Prior to killing Buckeye, Appellant and his girlfriend, Syndel McWhorter,

owned both Buckeye and another dog, Grey, a husky. After Buckeye was spayed, she

began acting aggressive towards Grey, so Appellant rehomed Grey.

       {¶4} On that morning the neighbor observed Appellant headed to the shed behind

the house carrying a blanket. When she did not see Buckeye at all the next day, she

called animal control.

       {¶5} Toby Wills, the Newark Animal Control Agent, responded to the complaint.

Appellant McWhorter initially told him they rehomed Buckeye because she bit one of their

kids. When Wills asked if they buried something behind the shed, they admitted it was

Buckeye.

       {¶6} Appellant testified that Buckeye’s aggressive behavior escalated until

eventually Buckeye bit Appellant’s son, who at the time was left unattended in the same

room as Buckeye. At the time of the bite, Buckeye was in her cage. Appellant testified

after this event, he decided he needed to euthanize the puppy; however, he did not have
Licking County, Case No. 2019 CA 00102                                                     3


the money to pay a veterinarian to euthanize Buckeye. Ms. McWhorter took Buckeye out

to the shed and was petting him as Appellant shot the puppy twice in the back of the head

with a nail gun. Appellant testified that he did not look into placing Buckeye at an animal

shelter, take the puppy to see the vet, or contact any shelter or animal rescue

organizations.

       {¶7} At trial Dr. Jody Houser, a veterinarian, testified as to the American Veterinary

Medical Association’s (“AVMA”) guidelines on how to euthanize pets. These guidelines

are explicit as to who should euthanize a pet, the training required to euthanize a pet, and

how it should be done. The AVMA guidelines state an animal should be euthanized by

law enforcement or other trained professionals. Euthanasia should be performed by such

individuals only in an emergency such as the animal is suffering or is an imminent danger

to a human.

       {¶8} Dr. Houser testified that euthanasia should be used only by trained personnel,

such as animal control or law enforcement, in emergency situations. The AVMA

guidelines do not list financial status as an emergency in which to euthanize a dog. It also

does not permit a lay person from using a nail gun to euthanize a pet. Dr. Houser further

discussed that euthanasia means, “good death,” and that the hospital she works at tries

to minimize stress as much as possible for the animal.

       {¶9} Dr. Houser also testified as to other options the veterinarian hospital discusses

with seeking to euthanize out-of-control pets. For example, behavior consultations may

be set up, trainers may be consulted, and in extremely rare cases, rehoming or

euthanizing the pet is necessary.
Licking County, Case No. 2019 CA 00102                                                       4


       {¶10} Appellant was charged with Prohibitions Concerning Companion Animals via

filing the complaint on April 17, 2018.

       {¶11} Appellant entered a written plea of Not Guilty on April 27, 2018. Appellant

filed a motion to dismiss on August 21, 2018.

       {¶12} The trial court denied said motion on August 23, 2018.

       {¶13} A jury found Appellant guilty on one charge of prohibitions concerning

companion animals in violation of Newark Codified Ordinance 618.051(c)(1) on

September 20, 2018.

       {¶14} Appellant appealed from this conviction based on three assignments of error.

The first, Appellant’s conviction violates due process as Newark Codified Ordinance

618.051(c)(1) is void for vagueness. State v. Cooper, 5th Dist. Licking No. 18-CA-90,

2019-Ohio-2925. Second, the trial court erred to the substantial prejudice of the defendant

by failing to strike a juror for cause after voir dire demonstrated the juror could not be fair

and impartial, thus violating the defendant’s rights guaranteed by Article I, Section 10 of

the Ohio Constitution and the Sixth and Fourteenth Amendments to the United States

Constitution. Id. Third, the defendant’s conviction is not supported by sufficient evidence

in violation of the due process clauses of the Fifth and Fourteenth Amendments to the

United States Constitution and Article I, Sections 1 and 16 of the Ohio Constitution. Id.

       {¶15} On July 16, 2019, this Court reversed the original conviction based on the

Appellant’s aforementioned second assignment of error, holding that the trial court

abused their discretion by failing to remove a juror, Mr. Fancher, from the jury. Mr.

Fancher responded that the use of a nail gun, without regard to any other evidence, would
Licking County, Case No. 2019 CA 00102                                                 5


be enough to convict Appellant under the statute, and the prosecutor did not rehabilitate

Mr. Fancher. Id.

      {¶16} On August 28, 2019, Appellant renewed his motion to dismiss and requested

an expert witness on this case. The court denied both motions.

      {¶17} A jury trial commenced on September 19, 2019, at which time Appellant was

found guilty again of one count of Prohibitions Concerning Companion Animals in

violation of Newark Codified Ordinance 618.051(c)(1).

                                 ASSIGNMENTS OF ERROR

      {¶18} On October 23, 2019, Appellant filed a notice of appeal. He herein raises the

following five Assignments of Error:

      {¶19} “I. WHETHER THE TRIAL COURT ERRED IN DENYING THE

DEFENDANT’S MOTION TO DISMISS BECAUSE NEWARK CODIFIED ORDINANCE

618.051(c)(1) IS UNCONSTITUTIONALLY VAGUE ON ITS FACE AND AS APPLIED IN

THIS CASE.

      {¶20} “II. WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT

ADMITTED TESTIMONY REGARDING THE AVMA GUIDELINES.

      {¶21} “III. WHETHER THE PROSECUTOR’S STATEMENTS DURING CLOSING

ARGUMENT DEPRIVED THE APPELLANT OF A FAIR TRIAL.

      {¶22} “IV. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENSE

COUNSEL’S MOTION FOR EXPERT FEES.

      {¶23} “V. WHETHER THE JURY’S GUILTY VERDICT IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE AND IS NOT SUPPORTED BY SUFFICIENT

EVIDENCE.”
Licking County, Case No. 2019 CA 00102                                                    6


                                                I.

       {¶24} In his First Assignment of Error, Appellant argues that the statute, “No person

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

torture, torment, needlessly mutilate or maim, cruelly beat, poison, needlessly kill, or

commits an act of cruelty against the companion animal,” is unconstitutionally vague.

N.M.O. 618.051 (c)(1). We disagree.

       {¶25} The determination of a statute’s constitutionality is a question of law to be

reviewed de novo by the appellate court. See State v. Whites Landing Fisheries, 6th Dist.

Erie No. E-13-021, 2014-Ohio-1314, at ¶13.

       {¶26} As created by the legislature, Ohio statutes are strongly presumed to be

constitutional. State v. Anderson (1991), 57 Ohio St.3d 168. In considering a statute as

void for vagueness, a court must determine whether the law affords a reasonable

individual of ordinary intelligence fair notice and sufficient definition and guidance to

enable him to conform his conduct to the law. Norwood v. Horney, 110 Ohio St. 3d 353,

380. The Supreme Court of Ohio recognizes limitations on the English language to be

both specific and reasonably brief, so prohibitions should be set out in terms that “an

ordinary person exercising ordinary common sense can sufficiently understand and

comply” with them. Columbus v. Kim, 118 Ohio St.3d 93, 2008-Ohio-1817, 886 N.E.2d

217.

       {¶27} The void for vagueness doctrine does not require statutes to be drafted with

scientific precision. State v. Anderson (1991), 57 Ohio St.3d 168, 174. A three part test

has been adopted by the Ohio Supreme Court which must be applied when examining

the void-for-vagueness doctrine. Papachristou v. City of Jacksonville, 405 U.S. 156; State
Licking County, Case No. 2019 CA 00102                                                     7


v. Collier, 62 Ohio St.3d 267. First, “the statute must provide adequate notice and fair

warning to persons of ordinary intelligence so that they can conform their conduct to the

dictates of the statute.” Id. Second, the statute cannot permit arbitrary and discriminatory

enforcement. Id. Third, the statute cannot unreasonably hinder fundamental constitutional

freedoms. Id.

       {¶28} Appellant argues the statute is unconstitutionally vague because the phrases

“needlessly kill” and “unnecessary or unjustifiable pain or suffering” are unconstitutionally

vague. In his brief, Appellant argues that there are many possible activities that are never

prosecuted, but may fall within the terms of “negligently” or “needlessly,” it is up to an

individual’s interpretation.

       {¶29} However, the term “negligently” is defined by R.C. 2901.22(D):

             A person acts negligently when, because of a substantial lapse from

        due care, the person fails to perceive or avoid a risk that the person's

        conduct may cause a certain result or may be of a certain nature. A person

        is negligent with respect to circumstances when, because of a substantial

        lapse from due care, the person fails to perceive or avoid a risk that such

        circumstances may exist.

       {¶30} “Needlessly” must be interpreted as a reasonable person of common

intelligence would understand the term. In State v. Rawson, 10th Dist. No. 14AP-1023,

2016-Ohio-1403, 62 N.E.3d 880, the Court held the defendant, who also could not afford

a veterinarian, could have consulted a veterinarian about the cost or contacted the

humane society. Id. The defendant in Rawson, had to, “take reasonable means to

alleviate the dog’s suffering.” Id. In the case before this Court, Appellant had the same
Licking County, Case No. 2019 CA 00102                                                   8


options available to him. He could have contacted a veterinarian, the humane society, or

a shelter. He chose not to do so. Instead, a mere fifteen minutes after his puppy bit his

unsupervised one-year old child, he killed the puppy by shooting her twice in the head

with a nail gun. Thus, an ordinary person exercising ordinary common sense would

readily understand killing the puppy before exhausting such options as “needlessly killing”

the animal.

       {¶31} Appellants’ First Assignment of Error is overruled.

                                                II.

       {¶32} In his Second Assignment of Error, Appellant argues the trial court committed

plain error by admitting into evidence testimony on the AVMA guidelines on euthanizing

companion animals as it is irrelevant, or if relevant its probative value is substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading

the jury. We disagree.

       {¶33} As Appellant did not object to the admission of AVMA guidelines on the

euthanizing of companion animals, we review this matter under the plain error standard

of review. Plain error is to be taken with utmost caution, under exceptional circumstances

and only to prevent a manifest miscarriage of justice. State v. Long 53 Ohio St.2d 91.

Plain error will only be invoked if, but for the error, the outcome of the trial would have

been different. Id.

       {¶34} Appellant argues that the admission of the AVMA guidelines and the

testimony of Dr. Houser, a veterinarian, were improperly allowed as the statute does not

require adherence to these guidelines and therefore are not relevant or misleading to the

jury. Under the Ohio Rules of Evidence, to the extent an expert witness relies on a learned
Licking County, Case No. 2019 CA 00102                                                   9


treatise, statements contained in such a treatise may be read into evidence. Ohio Evid.

R. 803(18). Such evidence must be relevant. Relevant evidence must have “a tendency

to make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Ohio Evid. R. 401.

In State ex rel. Ohio Soc. for the Prevention of Cruelty to Animals, Inc. v. Hocking Cty.

Bd. Of Commrs. 4th Dist. Hocking No. 13CA2, 2014-Ohio-3348, the AVMA guidelines

were admitted as Learned Treatise testimony to the extent they were relied upon by the

expert.

      {¶35} As the AVMA guidelines would be properly admitted hearsay testimony

describing the training, considerations, experiences and procedures used when

euthanizing a pet to ensure the companion animal experiences the least amount of stress

as possible are relevant. In the case before this Court, Dr. Houser’s testimony about the

AVMA guidelines on euthanizing pets was both relevant and the risk of unfair prejudice

did not outweigh their probative value. Therefore, we are unpersuaded that the admission

of AVMA guidelines is plain error.

      {¶36} Appellants’ Second Assignment of Error is overruled.

                                               III.

      {¶37} In his Third Assignment of Error, Appellant argues the prosecutor made

inappropriate and inflammatory comments during closing arguments, including

statements regarding her own personal experience with recently euthanizing a pet, to the

point the statements prejudicially affected the substantial rights of the accused. We

disagree.
Licking County, Case No. 2019 CA 00102                                                   10


       {¶38} As Appellant did not object to the argument at trial, the appellate standard of

review is limited to plain error. State v. White 82 Ohio St.3d 16. Plain error will only be

invoked if, but for the error, the outcome of the trial would have been different. State v.

Long 53 Ohio St.2d 91.

       {¶39} Appellant first argues the prosecutor injected an example from her own life

of recently euthanizing a dog. In the second instance, Appellant states the prosecutor

inflamed the passions or prejudices of the jury for comments related to the euthanasia of

pets, including defining euthanasia as a “good death.”

       {¶40} Regarding Appellant’s first argument, it is improper for the prosecutor to

discuss personal experiences not admitted into evidence. However, these statements

were neither outcome determinative nor unduly prejudicial, and therefore, do not

constitute reversible error.

       {¶41} Appellant also argues the prosecutor improperly inflamed the passions and

prejudices of the jury with several comments related to the euthanasia of pets, including

wrongly defining the term euthanasia as meaning, “good death,” and asking the jurors to

remember the death of their own pets.

       {¶42} Appellant begins by arguing that a simple Google search of euthanasia

shows this is not the meaning. However, Appellant completely ignores that his Google

search was not admitted into evidence at trial, but Dr. Houser testified to the court that

euthanasia means, “good death.” As such, the prosecutor discussing evidence admitted

at trial during closing arguments is not improper.

       {¶43} Finally, Appellant essentially argues that the prosecutor should not have

asked the jurors to call to mind the death of their own pets. While a prosecutor may not
Licking County, Case No. 2019 CA 00102                                                   11


make excessively emotional arguments which may inflame the jury’s sensibilities, the

prosecutor is entitled to latitude when making closing arguments. State v. Tibbets, 92

Ohio St.3d 146. However, “a conviction based solely on the inflammation of fears and

passions, rather than proof of guilt, requires reversal. State v. Keenan, 66 Ohio St.3d 402.

In Keenan, the prosecutor’s closing argument was more about the state of his own

emotions, only making glancing references to the facts of the case. Id. In this case, the

prosecutor spoke of her own personal experience with euthanizing her own pet. She

stated, “never once in the back of my mind at least when I did it in February was I thinking

how much this is going to cost me.” Tr. at 212. She goes on to describe how the only

thing she could think about was how to ease her pet’s suffering. However, these

statements make up only a small portion of the prosecutor’s closing arguments, which is

largely based on the evidence which was presented at trial speaking directly to testimony

from the Appellant and Dr. Houser. As such, we conclude that a review of the prosecutor’s

closing argument in its totality did not deny Cooper of a fair trial.

       {¶44} Appellant’s Third Assignment of Error is overruled.

                                                 IV.

       {¶45} In his Fourth Assignment of Error, Appellant argues the trial court erred in

denying defense counsel’s motion for expert fees in violation of Ake v. Oklahoma, 470

U.S. 68. We disagree.

       {¶46} Appellant argues in Ake the United States Supreme Court recognizes the

right of a criminal defendant to a court appointed expert witness. Id. However, the

Supreme Court’s view is much narrower than that. The Court held that costs for an expert

were required to be provided when necessary to prepare an effective defense based on
Licking County, Case No. 2019 CA 00102                                                     12


mental condition. The Court has chosen to recognize this narrow right because of the

pivotal role psychiatry plays in criminal proceedings. Id.

       {¶47} The Ohio Supreme Court has a broader rule that applies to expert witnesses

in general. State v. Mason, 82 Ohio St.3d 144. At trial the defendant has the burden of

establishing the need for expert assistance, specifically by making a “particularized

showing (1) of a reasonable probability that the requested expert would aid in his defense,

and (2) that denial of the requested expert assistance would result in an unfair trial. Id. “A

trial court possesses broad discretion with respect to the admission of evidence.” State v.

West, 5th Dist. No. 16 CA 11, 2017-Ohio-4055.

       {¶48} This Court is limited to an abuse of discretion standard of review. Id. While

the State had Dr. Houser testify as an expert in euthanasia for companion animals,

Appellant was attempting to retain an expert witness to proffer testimony about the way

in which to humanely slaughter livestock. As the humane slaughter of livestock is not at

issue in the trial, the denial of such a witness would not result in an unfair trial. We find

the trial court did not abuse its discretion with the denial of fees for the expert witness’s

testimony.

       {¶49} Appellants’ Fourth Assignment of Error is overruled.

                                                 V.

       {¶50} In his Fifth Assignment of Error, Appellant argues the jury’s guilty verdict is

against the manifest weight of the evidence and is not supported by sufficient evidence.

We disagree.

       {¶51} Sufficiency of evidence and manifest weight of the evidence are separate

and distinct legal standards. State v. Thompkins, 78 Ohio St.3d 380. Essentially,
Licking County, Case No. 2019 CA 00102                                                    13


sufficiency is a test of adequacy. Id. A sufficiency of the evidence standard requires the

appellate court to examine the evidence admitted at trial, in the light most favorable to the

prosecution, to determine whether such evidence, if believed, would convince the

average mind of the defendant’s guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio

St.3d 259.

       {¶52} In contrast to the sufficiency of the evidence analysis, when reviewing a

weight of the evidence argument, the appellate court reviews the entire record, weighing

the evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts of 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. Thompkins, 78 Ohio St.3d 380.

       {¶53} Under a weight of the evidence argument, the appellate court will consider

the same evidence as when analyzing the Appellant’s sufficiency of evidence argument.

Appellant argues the jury clearly lost its way as their conviction of Appellant based on the

total weight of the evidence was a manifest miscarriage of justice.

       {¶54} The State filed a complaint alleging Appellant violated Newark City

Ordinance 618.051(c)(1):

              (c) No person who confines or is the custodian or caretaker of a

       companion animal shall negligently do any of the following:

              (1) Torture, torment, needlessly mutilate or maim, cruelly beat,

       poison, needlessly kill, or commit an act of cruelty against a companion

       animal.
Licking County, Case No. 2019 CA 00102                                                   14


       {¶55} At trial the State produced evidence that Appellant, by his own testimony,

was the caretaker of Buckeye, and that he shot Buckeye in the head twice with a nail gun

to kill the animal. Appellant admitted to Wills he took no steps to inquire about affordable

veterinary services, speaking with the humane society, or taking the puppy to a shelter.

Appellant testified the only steps he took was attempting to rehome the dog via Craigslist

and Facebook. Appellant did not contact any veterinarians about reducing the price of

euthanasia. He contacted no animal shelters nor humane societies about taking the

puppy. All he did was wait fifteen minutes after the puppy allegedly bit his unsupervised

son and then shot the puppy in the head twice with a nail gun. We find the State presented

sufficient evidence, if believed by a jury, that Appellant needlessly killed the dog, or

committed an act of cruelty. Our review of the entire record fails to persuade us that the

jury lost its way and created a manifest miscarriage of justice. Appellant was not convicted

against the manifest weight of the evidence.

       {¶56} Appellant’s Fifth Assignment of Error is overruled

       {¶57} For the foregoing reasons, the judgment of the Municipal Court of Licking

County, Ohio, is hereby affirmed.

By: Wise, John, J.
Hoffman, P. J., and
Wise, Earle, J., concur.



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