[Cite as State v. Schuler, 2019-Ohio-1585.]




                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              BUTLER COUNTY




 STATE OF OHIO,                                     :     CASE NO. CA2018-04-067

         Appellee,                                  :           OPINION
                                                                 4/29/2019
                                                    :
   - vs -
                                                    :

 PAUL E. SCHULER,                                   :

         Appellant.                                 :




                CRIMINAL APPEAL FROM BUTLER COUNTY AREA I COURT
                              Case No. CRB1701018(B)



Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, OH 45011, for appellee

Scott N. Blauvelt, 315 South Monument, Hamilton, Ohio 45011, for appellant



        M. POWELL, J.

        {¶ 1} Appellant appeals his conviction and sentence in the Butler County Area I

Court for animal cruelty.

        {¶ 2} On June 28, 2017, Butler County Deputy Dog Warden Patricia Todd received

a report from a deputy sheriff who, while responding to a noise complaint, had observed a

pit bull on appellant's property that was unable to walk "and in poor condition." Deputy Todd
                                                                      Butler CA2018-04-067

went to appellant's home. There, she observed a female pit bull lying on the driveway,

drinking from a mud puddle. The pit bull was unable to get up or walk and had open sores

on her backside and maggot larvae in her vaginal area. Appellant told Deputy Todd that

the pit bull belonged to his son and that he was trying to rehabilitate the dog. Unable to

take the pit bull to a veterinarian, appellant voluntarily released the dog to Deputy Todd. It

was later euthanized. While on the property, Deputy Todd further observed two Australian

cattle dogs. One was extremely thin. The other did not look well and suffered from

alopecia.1 Deputy Todd returned to appellant's home the next day, on June 29, 2017. Kathy

Strickland, appellant's former wife, answered the door. She informed the deputy that

appellant was in the hospital.

        {¶ 3} On July 3, 2017, Deputy Todd returned to appellant's home.           Strickland

informed her that appellant was still hospitalized and that she was overwhelmed caring for

appellant's eight dogs and numerous other animals. Subsequently, Deputy Todd called

Deputy Kurt Merbs, a supervisor dog warden for the Butler County Sheriff's Office, to

respond to appellant's home. Once Deputy Merbs arrived at the home, and with Strickland's

written consent, he and Deputy Todd performed an animal welfare check on appellant's

property.

        {¶ 4} The deputies observed the two Australian cattle dogs in a very muddy

outdoors-kennel. The dogs were wet and covered in mud and had no food or water. The

deputies further observed numerous chickens, rabbits, rats, and mice as well as snakes

and raccoons, inside the house and outside, all living in filthy and cramped conditions. The

rabbits and chickens were kept in pens without water or food. One chicken was missing

almost all of its feathers and had an infected beak. Deputy Todd and a state wildlife officer




1. Alopecia refers to a loss of hair or fur.
                                               -2-
                                                                       Butler CA2018-04-067

subsequently went to the hospital to talk to appellant. Appellant signed a waiver releasing

the raccoons and snakes to the wildlife officer. Appellant, however, refused to release the

other animals to Deputy Todd. Consequently, a search warrant was obtained.

       {¶ 5} The search warrant was executed on July 5, 2017. Appellant was home. The

record indicates appellant came home from the hospital sometime between July 3 and July

4, 2017. As before, the living conditions of the dogs, rabbits, and chickens were poor with

no food or water. The Australian cattle dogs "looked just as bad as two days before," and

the male dog was once again in a kennel outside. At some point after returning home,

appellant had opened the rabbit cages and chicken coop behind the house and most of the

chickens and rabbits were running loose on the property. The chicken with the missing

feathers was observed walking into the woods and was never seen again. One of the freed

rabbits had been attacked by a raccoon and was lying, barely alive, in a cat carrier.

Appellant told Deputy Merbs he intended to "doctor the rabbit up." It was later euthanized.

       {¶ 6} Two raccoons, 3 black rat snakes, 8 dogs, including the 2 Australian cattle

dogs, 7 chickens, 3 roosters, 17 rabbits, 5 rats, 200 mice, and 2 guinea pigs were removed

from the property. The Australian cattle dogs were examined by Dr. Jayme Haeussler, a

veterinarian, on July 6, 2017. The female dog was dehydrated, skinny, and 20 to 25 percent

underweight. Her body temperature was high. She was dripping dark colored urine. The

male dog was dehydrated, skinny, and 15 percent underweight.                 He suffered from

generalized alopecia on his trunk and had hookworms and other intestinal parasites. His

ears were so infected that they were almost completely swollen shut.

       {¶ 7} The female dog was further examined by Dr. David Corfman, a veterinarian,

on July 7, 2017. The dog was dehydrated, 20 percent underweight, and had "expelled"

bloody urine in her cage, indicating a probable urinary tract infection. The dog was further

"very sore in the back, had trouble walking, very painful in [her] spine."

                                              -3-
                                                                     Butler CA2018-04-067

      {¶ 8} Appellant was charged by complaints with five counts of cruelty to animals

(Counts A-E) in violation of R.C. 959.13, and two counts of cruelty to companion animals

(Counts F-G) in violation of R.C. 959.131(D)(2), all misdemeanors of the second degree.

Counts A through D related to four rabbits, including the euthanized rabbit, Count E related

to the chicken missing most of its feathers, and Counts F and G related to the two Australian

cattle dogs. An additional complaint was filed charging appellant with one count of cruelty

to a companion animal, the euthanized pit bull, in violation of R.C. 959.131(D)(2).

      {¶ 9} The matter proceeded to a bench trial. Drs. Haeussler and Corfman, Deputy

Todd, Deputy Merbs, and three other officers testified on behalf of the state. Dr. Haeussler

testified that an animal's dehydration can be caused by "limited access to water or high

temperatures where [the animal is] not getting enough water in." Dr. Haeussler opined that

the Australian cattle dogs' conditions were consistent with that of dogs that had not been

fed or given water for some time. The veterinarian further testified that it "typically takes

some time" for a dog to become underweight.

      {¶ 10} Dr. Corfman likewise opined that the female Australian cattle dog's condition

was consistent with that of a dog that had not been properly fed or given water. Dr. Corfman

further opined that the female dog had been underfed and not provided enough water.

Asked whether he was surprised the female dog was still dehydrated on the day he

examined her, the veterinarian replied, "[n]o. And it depends on how bad she was the day

before; but no, it can take a few days of proper caring, possibly more, of proper care

depending on how far down they are to try to elevate them back up to a normal level."

      {¶ 11} Testimony of the officers and deputies indicated that regardless of what day

they were on appellant's property, the animals were always without food and water. In

addition, the animals were living in poor and filthy conditions, which included animal feces,

urine, and vomit. Deputy Todd testified that while the Australian cattle dogs had bowls for

                                             -4-
                                                                        Butler CA2018-04-067

water and food in their kennel, the bowls were empty and had dirt at the bottom, both on

July 3 and July 5, 2017, indicating the bowls had not been used for food or water between

July 3 and July 5, 2017.

       {¶ 12} Following Deputy Todd's testimony, the stated rested its case-in-chief.

Appellant moved for acquittal pursuant to Crim.R. 29. The trial court granted the motion

with respect to Count A (the euthanized rabbit), Count E (the chicken missing its feathers),

and the pit bull. Anita Schuler and Strickland subsequently testified on behalf of appellant.

Schuler was at appellant's home the day the officers executed the search warrant.

       {¶ 13} Both women testified there was food on the property to feed the animals. Both

women testified the animals were fed either daily or regularly. Both women testified they

were never asked whether the animals were fed or whether there was food on the property.

Strickland admitted telling Deputy Todd she was overwhelmed caring for the animals but

explained she felt overwhelmed because the dogs were barking and acting crazy while

Deputy Todd was on the property. Strickland further admitted her memory was poor due

to a stroke and "brain injury." Schuler denied the Australian cattle dogs were underweight.

In contrast to the testimony of several officers, Schuler further testified that the rabbit cages

located in the basement were always clean, she never saw feces on the floors, and

appellant's home was simply a little bit dusty.

       {¶ 14} After appellant rested his defense, the state called Deputy Todd to testify on

rebuttal. The deputy testified that she walked the entire property on July 5, 2017, and found

no animal food contrary to Schuler's testimony. The deputy further testified that when she

asked where the animal food was, neither appellant nor Schuler answered her question.

       {¶ 15} On October 12, 2017, the trial court found appellant guilty of animal cruelty on

Counts B, C, and D regarding three rabbits, and Counts F and G regarding the Australian

cattle dogs. On December 28, 2017, the trial court sentenced appellant to 90 days in jail

                                               -5-
                                                                        Butler CA2018-04-067

on all five counts and suspended the jail time. Following a separate restitution hearing held

in March 2018, the trial court ordered appellant to pay $831 in restitution to the Butler

County Dog Warden and the Animal Friends Humane Society.

       {¶ 16} Appellant now appeals, raising three assignments of error.

       {¶ 17} Assignment of Error No. 1:

       {¶ 18} THE COMPLAINTS IN COUNTS B, C, AND D WERE INSUFFICIENT TO

INVOKE THE SUBJECT MATTER JURISDICTION OF THE TRIAL COURT.

       {¶ 19} Appellant argues the trial court lacked subject-matter jurisdiction to convict

him of animal cruelty on Counts B, C, and D regarding the rabbits because the respective

complaints failed to describe the prohibited conduct or list the specific statutory subsection

alleged to have been violated, and thus were not valid under Crim.R. 3.

       {¶ 20} Subject-matter jurisdiction involves a court's power to hear a case. As such,

the issue can never be waived and may be raised at any time. State v. Mbodji, 129 Ohio

St.3d 325, 2011-Ohio-2880, ¶ 10. The filing of a valid complaint is a necessary prerequisite

to a trial court's acquisition of jurisdiction. State v. Williams, 12th Dist. Butler No. CA2014-

06-144, 2015-Ohio-1090, ¶ 8, citing Mbodji at ¶ 12. The question of whether a complaint is

valid is a question of law which we review de novo. Newburgh Hts. v. Hood, 8th Dist.

Cuyahoga No. 84001, 2004-Ohio-4236, ¶ 5.

       {¶ 21} Crim.R. 3 provides, "The complaint is a written statement of the essential facts

constituting the offense charged.     It shall also state the numerical designation of the

applicable statute or ordinance. It shall be made upon oath before any person authorized

by law to administer oaths." Thus, there are three requirements for a complaint to be valid

under Crim.R. 3. Mbodji at ¶ 12; State v. Jones, 11th Dist. Portage Nos. 2010-P-0051 and

2010-P-0055, 2011-Ohio-5109, ¶ 16. The complaint must (1) set forth a written statement

of the facts that constitute the essential elements of the offense charged, (2) state the

                                              -6-
                                                                       Butler CA2018-04-067

numerical designation of the statute or municipal ordinance which the defendant allegedly

violated, and (3) be made under oath before any person authorized by law to administer

oaths.

         {¶ 22} "The essential elements of a given offense are those facts which must be

proven to obtain a conviction of the accused." Jones at ¶ 16. "'While all the specific facts

relied upon to sustain the charge need not be recited, the material elements of the crime

must be stated.'" Hood, 2004-Ohio-4236 at ¶ 9, quoting State v. Burgun, 49 Ohio App. 2d

112 (8th Dist.1976), paragraph one of the syllabus. "'The numerical designation of the

applicable criminal statute in a complaint does not cure the defect in failing to charge on all

the essential elements of the crime.'" Hood at ¶ 9, quoting Burgun at paragraph two of the

syllabus.

         {¶ 23} The complaints charging appellant with cruelty to animals in Counts B, C, and

D merely stated that appellant "did unlawfully violate [R.C.] 959.13 M2." "M2" stands for

misdemeanor of the second degree. The complaints did not set forth the underlying facts

of the offense as required by Crim.R. 3, did not provide any of the statutory language, and

failed to specify which of the five subsections of R.C. 959.13 appellant was charged with

violating. As the Sixth Appellate District aptly stated, "Being charged with violating R.C.

[959.13] is not specific enough to make the complaint sufficient. Not only is there no

subsection on the complaint, there are no facts describing the event appellant was arrested

for. Not designating or implying the specific subsection leaves a material element to

conjecture." State v. Echemendia, 6th Dist. Ottawa No. OT-95-059, 1996 Ohio App. LEXIS

3523, *5 (Aug. 23, 1996).

         {¶ 24} We therefore find that the complaints charging appellant with animal cruelty

in Counts B, C, and D were not valid under Crim.R. 3. See State v. Newell, 6th Dist. Erie

No. E-08-064, 2009-Ohio-1816; State v. Sallee, 6th Dist. Erie No. E-11-042, 2012-Ohio-

                                              -7-
                                                                       Butler CA2018-04-067

3617; Hood, 2004-Ohio-4236.        Consequently, because the trial court's subject-matter

jurisdiction was not properly invoked by the filing of these complaints, the trial court lacked

jurisdiction to convict appellant of cruelty to animals on Counts B, C, and D. Appellant's

animal cruelty conviction regarding the three rabbits is accordingly vacated.

       {¶ 25} Appellant's first assignment of error is sustained.

       {¶ 26} Assignment of Error No. 2:

       {¶ 27} THE EVIDENCE WAS INSUFFICIENT TO SUPPORT APPELLANT'S

CONVICTIONS FOR PROHIBITIONS CONCERNING COMPANION ANIMALS IN

COUNTS F AND G.

       {¶ 28} Appellant argues his conviction for cruelty to companion animals on Counts F

and G regarding the two Australian cattle dogs is not supported by sufficient evidence.

Specifically, appellant asserts the evidence was insufficient to establish he was negligent

in failing to provide adequate food or water to the dogs as he was hospitalized for

approximately a week before the dogs were examined and found to be dehydrated,

underweight, and sick.

       {¶ 29} Whether the evidence presented at trial is legally sufficient to sustain a verdict

is a question of law. State v. Goodwin, 12th Dist. Butler No. CA2016-05-099, 2017-Ohio-

2712, ¶ 23. When reviewing the sufficiency of the evidence underlying a criminal conviction,

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

believed, would convince the average mind of the defendant's guilt beyond a reasonable

doubt. Id. Therefore, "[t]he 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.

       {¶ 30} Appellant was convicted of violating R.C. 959.131(D)(2), which provides

                                              -8-
                                                                      Butler CA2018-04-067

              No person who confines or who is the custodian or caretaker of
              a companion animal shall negligently [d]eprive the companion
              animal of necessary sustenance or confine the companion
              animal without supplying it during the confinement with sufficient
              quantities of good, wholesome food and water if it can
              reasonably be expected that the companion animal would
              become sick or suffer in any other way as a result of or due to
              the deprivation or confinement.

       {¶ 31} R.C. 2901.22(D) provides that "[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." Id.

       {¶ 32} Upon reviewing the record, we find that appellant's conviction for cruelty to

companion animals on Counts F and G is supported by sufficient evidence as any rational

trier of fact could have found the essential elements of cruelty to companion animals proven

beyond a reasonable doubt. The state presented evidence that the two Australian cattle

dogs were both dehydrated and abnormally underweight not only on July 3, 2017, when

appellant was hospitalized, but also on July 5, 2017, when appellant had been back home

for a day or two. Moreover, the state presented Deputy Todd's testimony that the dogs

were underweight and in poor condition on June 28, 2017, before appellant's

hospitalization. In other words, the dogs' condition at the time of their removal on July 7,

2017, was consistent with their condition on June 28, 2017, when they were under

appellant's care.

       {¶ 33} The state further presented evidence that the dogs had no food or water on

July 3 and July 5, 2017, during and after appellant's hospitalization, and that Deputy Todd's

search of appellant's property on July 5, 2017, did not reveal the presence of food to feed

the dogs. Veterinarians testified that the Australian cattle dogs' dehydration and

                                             -9-
                                                                        Butler CA2018-04-067

malnourished conditions were consistent with that of dogs that had not been fed or given

water for some time. Dr. Haeussler further testified that it "typically takes some time" for a

dog to become underweight. Again, as stated above, the dogs were already underweight

in June 28, 2017. Moreover, the state presented evidence of the filthy and cramped living

conditions of the animals on appellant's property, thereby establishing a general pattern of

neglect of the animals, including the Australian cattle dogs.

        {¶ 34} We note appellant's contention that the evidence merely established that the

female Australian cattle dog was underweight or skinny, but not emaciated. However, "even

though evidence of severe malnutrition, starvation, and emaciation is extremely probative

of the lack of sufficient food, it is not necessary evidence, and a lesser degree of nutritional

deprivation may be sufficient to sustain a conviction if the animal is not receiving enough

food to meet the needs of the situation." Akron v. Donnelly, 9th Dist. Summit No. 16821,

1995 Ohio App. LEXIS 699, *9-10 (Feb. 22, 1995); State v. Southern, 2d Dist. Montgomery

No. 27932, 2018-Ohio-4886, ¶ 32.

        {¶ 35} Appellant further contends there were other factors that could have caused or

contributed to the dogs' condition, such as intestinal parasites for the male dog and a

possible urinary tract infection for the female dog. However, upon viewing the evidence in

a light most favorable to the prosecution, we find the state presented sufficient evidence

that appellant negligently failed to provide adequate food and water for the Australian cattle

dogs.

        {¶ 36} Appellant's second assignment of error is overruled.

        {¶ 37} Assignment of Error No. 3:

        {¶ 38} THE TRIAL COURT ERRED IN ORDERING APPELLANT TO PAY

RESTITUTION.

        {¶ 39} Appellant argues the trial court erred in ordering him to pay $831 in restitution

                                              - 10 -
                                                                          Butler CA2018-04-067

to the Butler County Dog Warden and the Animal Friends Humane Society because neither

are a victim of appellant as required under R.C. 2929.28(A).

       {¶ 40} R.C. 2929.28(A)(1) provides that when sentencing a defendant for a

misdemeanor, a trial court may impose "any financial sanction or combination of financial

sanctions authorized under [R.C. 2929.28(A)]," including "restitution by the offender to the

victim of the offender's crime or any survivor of the victim, in an amount based on the victim's

economic loss."

       {¶ 41} We uphold the trial court's restitution order for the following reasons. The

record shows that appellant not only failed to object to paying restitution to the dog warden

and humane society during the restitution hearing, he further stipulated to the restitution

payment. A failure to object to a trial court's award of restitution waives all but plain error.

State v. Stewart, 3d Dist. Allen No. 16-08-11, 2008-Ohio-5823, ¶ 7. Notice of plain error

under Crim. R. 52(B) is to be taken with the utmost caution, under exceptional

circumstances, and only to prevent a manifest miscarriage of justice. State v. Landrum, 53

Ohio St.3d 107, 111 (1990). Appellant's stipulation of the restitution payment "served as a

sufficient basis for the trial court * * * to order appellant to pay restitution" to the dog warden

and humane society. State v. Silbaugh, 11th Dist. Portage No. 2008-P-0059, 2009-Ohio-

1489, ¶ 21.

       {¶ 42} Furthermore, under the invited-error doctrine, a party is not entitled to take

advantage of an error that he himself invited or induced the trial court to make. State v.

Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, ¶ 243. The invited-error doctrine applies to

cases in which the defendant argues on appeal that the trial court lacked authority to impose

restitution. State v. Savage, 4th Dist. Meigs No. 15CA2, 2015-Ohio-4205, ¶ 14. Given

appellant's stipulation at the restitution hearing, any argument that the trial court had no

authority to impose restitution is contrary to appellant's position at the restitution hearing

                                               - 11 -
                                                                     Butler CA2018-04-067

and precluded by the invited-error doctrine. Silbaugh at ¶ 22; State v. Jackson, 8th Dist.

Cuyahoga No. 99059, 2013-Ohio-3136, ¶ 15.

       {¶ 43} Appellant's third assignment of error is overruled.

       {¶ 44} The first assignment of error having been sustained, appellant's conviction for

animal cruelty on Counts B, C, and D regarding three rabbits is reversed and vacated. All

other assignments of error having been overruled, the judgment of the trial court is affirmed

in all other respects.


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




                                            - 12 -
