[Cite as State v. Ward, 2019-Ohio-883.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :       Hon. Craig R. Baldwin, J.
                                             :       Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
LIDA WARD                                    :       Case No. 18-CA-19
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Municipal Court,
                                                     Case No. CRB1702455




JUDGMENT:                                            Reversed and Remanded




DATE OF JUDGMENT:                                    March 13, 2019




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

MITCHELL R. HARDEN                                   RYAN SHEPLER
136 West Main Street                                 158 East Main Street
Lancaster, OH 43130                                  P.O. Box 388
                                                     Logan, OH 43138-0388
Fairfield County, Case No. 18-CA-19                                                      2

Wise, Earle, J.

        {¶ 1} Defendant-Appellant, Lida Ward, appeals her April 30, 2018 conviction for

animal cruelty in the Municipal Court of Fairfield County, Ohio. Plaintiff-Appellee is the

state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

        {¶ 2} On September 29, 2017, appellant was charged with eleven counts of

animal cruelty in violation of R.C. 959.13(A)(1). Said charges stemmed from complaints

by the Fairfield Area Humane Society regarding the care and appearance of eleven

horses on appellant's property. On March 7, 2018, the charges were amended to clarify

which horse corresponded to each count.

        {¶ 3} A jury trial commenced on April 17, 2018. The jury found appellant guilty

on one charge pertaining to a horse named "Joy." The jury found appellant not guilty of

the remaining nine counts.1       By judgment entry filed April 30, 2018, the trial court

sentenced appellant to ninety days in jail with ninety days suspended, and three years of

non-reporting probation. Appellant was ordered to pay a $500 fine. "Joy" was forfeited

to the Humane Society and the remaining horses were returned to appellant.

        {¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

        {¶ 5} "THE TRIAL COURT ERRED BY FINDING THAT 959.13(A) IS A STRICT

LIABILITY     OFFENSE,      AND     BY   FAILING    TO    INSTRUCT      THE      JURY   ON

RECKLESSNESS AS AN ELEMENT OF THAT OFFENSE."



1One   of the eleven horses was euthanized prior to trial, leaving ten horses.
Fairfield County, Case No. 18-CA-19                                                            3


                                               II

       {¶ 6} "THE TRIAL COURT ERRED BY EXCLUDING CHARACTER EVIDENCE

TO BE PRESENTED BY MS. WARD."

                                               III

       {¶ 7} "THE STATE PRESENTED INSUFFICIENT EVIDENCE TO SUPPORT A

CONVICTION OF MS. WARD."

                                               IV

       {¶ 8} "THE JURY'S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE."

                                                I

       {¶ 9} In her first assignment of error, appellant claims the trial court erred in

finding R.C. 959.13(A)(1) to be a strict liability offense and in failing to instruct the jury on

the requisite culpability of "recklessly." We agree.

       {¶ 10} Appellant was convicted of one count of animal cruelty in violation of R.C.

959.13(A)(1) which states: "No person shall: (1) 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} R.C. 2901.21(B) states the following:



              When the language defining an offense does not specify any degree

       of culpability, and plainly indicates a purpose to impose strict criminal

       liability for the conduct described in the section, then culpability is not
Fairfield County, Case No. 18-CA-19                                                           4


       required for a person to be guilty of the offense. The fact that one division

       of a section plainly indicates a purpose to impose strict liability for an offense

       defined in that division does not by itself plainly indicate a purpose to impose

       strict criminal liability for an offense defined in other divisions of the section

       that do not specify a degree of culpability.



       {¶ 12} Subsection (C)(1) states: "When language defining an element of an

offense that is related to knowledge or intent or to which mens rea could fairly be applied

neither specifies culpability nor plainly indicates a purpose to impose strict liability, the

element of the offense is established only if a person acts recklessly."

       {¶ 13} On April 16, 2018, prior to trial, appellant requested to add an additional jury

instruction to wit, the culpability of "recklessly" as defined in R.C. 2901.22(C). The trial

court denied the request, finding: "I find that it's not applicable in this matter. The reckless

I don't find to be part of this statute. As I have indicated before, I think there is another

section that it may apply, but that's not the section that is charged today so I will overrule

the motion." T. at 6.

       {¶ 14} In order to determine this issue, we will review this court's previous opinions

on the requisite culpability of R.C. 959.13(A)(1).

       {¶ 15} In 1999, this court decided State v. Donnelly, 5th Dist. Ashland No. 98 COA

01272, 1999 WL 172772 (Feb. 22, 1999). This court stated the following at *3:



              Courts have found culpability is not required when prosecuting under

       R.C. 959.13(A)(1). See, State v. Hafle (1977), 52 Ohio App.2d 9, 367
Fairfield County, Case No. 18-CA-19                                                          5


       N.E.2d 1226. Further, because a specific culpability is not stated and the

       statute uses the phrase "[n]o person shall," we find the statute to be a per

       se statute requiring no degree of mens rea to sustain a conviction.



       {¶ 16} In 2004, the Supreme Court of Ohio decided State v. Moody, 104 Ohio St.3d

244, 2004-Ohio-6395, 819 N.E.2d 268. The Moody court was asked to answer the

certified question of whether R.C. 2919.24, contributing to unruliness or delinquency, was

a strict liability offense. The court explained the following at ¶ 16 in pertinent part:



               The statute does not specify a degree of mental culpability. Nor does

       it plainly indicate a purpose to impose strict liability. The fact that the statute

       contains the phrase "No person shall" does not mean that it is a strict

       criminal liability offense. The statute in question in Collins, 89 Ohio St.3d

       524, 733 N.E.2d 1118, contained the same wording yet we did not impose

       strict criminal liability.   Instead, we stressed that there must be other

       language in the statute to evidence the General Assembly's intent to impose

       strict criminal liability.



       {¶ 17} In 2007, this court decided State v. Martin, 5th Dist. Stark No.

2006CA00339, 2007-Ohio-4821. This court reviewed a violation of R.C. 959.13(A)(1) and

stated at ¶ 47: "The requisite mental state for this offense is recklessness."

       {¶ 18} Seven days later, this court decided State v. Haney, 5th Dist. Tuscarawas

No. 2006 AP 09 0052, 2007-Ohio-5057. This court at ¶ 14-15 followed the precedent set
Fairfield County, Case No. 18-CA-19                                                           6

forth in Donnelly, that R.C. 959.13(A)(1) was a strict liability offense. The prosecutor sub

judice cited this case to the trial court in arguing against the inclusion of the instruction on

recklessly. T. at 6.

          {¶ 19} In 2017, this court decided State v. Paul, 5th Dist. Ashland No. 16-COA-

036, 2017-Ohio-4054. This court reviewed a local ordinance identical to R.C. 959.13.

This court stated at ¶ 19: "Proof of recklessness is required to sustain a conviction under

the R.C. 959.13(A), and hence under Loudonville Ordinance 618.05." We note the local

ordinance followed the language of subsection (A)(2), not (A)(1). We do not find a

difference in the level of culpability in these two sections.

          {¶ 20} Today, this court follows the precedent set forth in Martin and Paul, and

hereby hold the requisite culpability for a violation of R.C. 959.13(A)(1) to be recklessly.

This holding is in line with ten other districts as outlined by appellant in her brief at 8-9.2

          {¶ 21} Based upon today's decision, we find the trial court erred in failing to add

the additional jury instruction of recklessly as requested by appellant.

          {¶ 22} Assignment of Error I is granted.

                                            II, III, IV

          {¶ 23} In light of our decision in Assignment of Error I, these assignments of error

are rendered moot.

          {¶ 24} The judgment of the Municipal Court of Fairfield Count, Ohio is hereby

reversed, and the matter is remanded to said court for further proceedings consistent with

this opinion.




2It   appears the second district has not been called upon to determine the issue.
Fairfield County, Case No. 18-CA-19   7


By Wise, Earle, J.

Gwin, P.J. and

Baldwin, J. concur.




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