[Cite as State v. Rawson, 2016-Ohio-1403.]

                              IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                   No. 14AP-1023
v.                                                 :            (M.C. No. 14ERB-71006)

Anthony D. Rawson,                                 :           (REGULAR CALENDAR)

                 Defendant-Appellant.              :



                                             D E C I S I O N

                                     Rendered on March 31, 2016


                 On brief: Richard C. Pfeiffer, Jr., City Attorney, Lara N.
                 Baker, City Prosecutor, Melanie R. Tobias, and Orly Ahroni,
                 for appellee. Argued: Orly Ahroni.

                 On brief: Yeura R. Venters, Public Defender, and
                 Timothy E. Pierce, for appellant. Argued: Timothy E.
                 Pierce.

                       APPEAL from the Franklin County Municipal Court
DORRIAN, P.J.
        {¶ 1} Defendant-appellant, Anthony D. Rawson, appeals from a judgment of
conviction and sentence entered by the Franklin County Municipal Court pursuant to jury
verdicts finding him guilty of two violations of Ohio's statute prohibiting mistreatment of
companion animals.
        {¶ 2} The criminal complaint against appellant charged him with two violations
of R.C. 959.131. The first charge alleged that he had knowingly and cruelly beaten a
companion animal in his custody or care, a violation of R.C. 959.131(B). The second
charge alleged that through omission or neglect he had caused unnecessary pain and
suffering to a companion animal in his custody or care, and allowed such suffering to
continue needlessly by failing to provide proper medical treatment for spinal injuries,
No. 14AP-1032                                                                            2

head trauma, and neurological symptoms, a violation of R.C. 959.131(C). Appellant
entered pleas of not guilty to both offenses.
       {¶ 3} Appellant is a former firefighter and EMT paramedic with extensive medical
and emergency training. During the period in question, however, appellant resided at a
facility known as the Commons at Chantry, a supportive housing community serving the
specialized needs of handicapped or formerly homeless individuals.         As part of the
structured living environment at Chantry, appellant received supervision from a case
manager provided by Maryhaven, a central Ohio provider of addiction and behavioral
health services. Appellant adopted a rescued beagle puppy from the Licking County
Humane Society and named her Eunice. He brought her to live in his apartment at
Chantry where the dog eventually suffered injuries that required euthanization, leading to
the charges against appellant.
       {¶ 4} At trial, the prosecution presented the testimony of Benjamin Revilla, a
fellow resident at Chantry. Revilla testified that on March 27, 2014, appellant came to his
door and asked if Revilla could check on Eunice. Revilla went to appellant's apartment
and saw Eunice underneath appellant's kitchen table; her head was tilted unnaturally and
her tongue was hanging out. Revilla noticed Eunice did not respond to touch, her legs
were rigid, and eyes bulged out. Appellant denied injuring the dog when asked, and
Revilla did not observe anything out of order in the apartment. Revilla advised appellant
to contact a veterinarian and find someone who could transport Eunice and appellant.
Later that evening, appellant informed Revilla that he had contacted a veterinarian but
could not afford the advanced payment demanded. The next morning, Revilla informed
his own counselor about the dog's condition and suggested that someone should seek help
from the humane society or another source. Revilla testified that appellant stated he
would occasionally trip over Eunice while walking around the apartment or outside.
       {¶ 5} Sean Penny testified as appellant's Maryhaven case manager.             Penny
testified that he had been appellant's case manager for three years and assisted him and
other clients with day-to-day activities. Upon learning from Revilla's case manager that
there was something wrong with appellant's dog, Penny performed a housing unit
inspection and found appellant lying on his couch next to Eunice. The dog's eyes were
glazed, her tongue was hanging out of her mouth, and her ears were not moving.
No. 14AP-1032                                                                             3

Appellant then informed Penny that Eunice had suffered a seizure and that he had
administered CPR to her twice. Penny shortly thereafter contacted the Capital Area
Humane Society for assistance. Penny was present when a humane society agent came to
the apartment. Appellant refused to allow them in but did allow them to check over
Eunice while standing in the hallway. Appellant then signed Eunice over to the humane
society.
       {¶ 6} Penny further testified that as a case manager he can provide bus passes
and a form of transportation insurance which can furnish taxi service in cases of urgent
need. Penny also testified that from time to time he will personally provide emergency
transportation for residents. His clients have an emergency after-hours contact protocol
when they need immediate assistance.
       {¶ 7} Humane Society Investigating Agent Anthony Chamberlain testified for the
prosecution that he was dispatched to Chantry following a phone call from appellant's
case manager, Penny. When Chamberlain knocked on appellant's door, Penny was still
present and allowed Chamberlain to enter. Appellant then informed Chamberlain that he
wished Chamberlain to leave his apartment but followed Chamberlain into the hallway
and allowed Chamberlain to examine Eunice. Chamberlain immediately noticed that
Eunice had a neck or back injury, demonstrated by her loose and uncontrolled head
movement while being carried.       Appellant told Chamberlain that he was unable to
remember if he had injured the dog. Appellant informed Chamberlain that Eunice was
constantly under foot and he frequently stepped on her. Appellant also stated that he
suspected he had injured Eunice while administering CPR to her after she became
unresponsive. Upon Chamberlain's request, appellant surrendered Eunice to the humane
society and executed a form giving the society permission to euthanize Eunice if her
health problems were untreatable. Chamberlain's personal assessment at the scene was
that the dog's injuries did not result from application of CPR but from blunt force trauma.
       {¶ 8} Chamberlain and another humane society investigator returned the
following day to obtain additional information from appellant. As with a portion of the
previous day's visit, part of this interview was recorded by Chamberlain using his cell
phone. Penny was also present at this interview. Appellant expressed concern about
Eunice and demonstrated how he had performed CPR on her. Appellant appeared visibly
No. 14AP-1032                                                                           4

upset and concerned about Eunice. Chamberlain again opined that the dog's injuries
were consistent with appellant's comments that he had possibly stepped on her.
      {¶ 9} Dr. Emily Walz, a veterinarian who examined Eunice at the humane society,
testified that Eunice presented with signs of neurological impairment and was
unresponsive. Dr. Walz immediately suspected a spinal cord injury. Dr. Walz observed
that Eunice's eyes had broken blood vessels, were bulging, and one appeared to have a
corneal ulcer. During her testimony, Dr. Walz identified several photographs and used
these to illustrate her conclusion that Eunice's spinal cord had been compressed and
damaged between vertebra C1 and C2, which was consistent with the dog's special posture
and inability to rise or respond to stimulus. Dr. Walz opined that the injuries observed
were consistent with severe pain from the time of injury forward. Based on Eunice's
condition, including obvious severe pain and poor prognosis, Dr. Walz independently
concluded that the dog would be put down without need to refer to the owner's
authorization.
      {¶ 10} The defense presented the testimony of Harry Roush, another Chantry
resident. Roush described appellant as a caring dog owner who wept when he heard that
Eunice had been euthanized. Roush testified that he could not recall the exact date of the
events concerning Eunice but did remember the dog being unable to walk. Roush stated
that he and appellant contacted veterinarians, who all wanted advanced payment which
appellant could not afford.    He observed Eunice throwing up after her injury and
appellant administering CPR.
      {¶ 11} Bill Braskett, another Chantry resident, testified that his apartment was
across the hall from appellant. On most days, Braskett and appellant would have dinner
together.   Braskett testified that appellant brought Eunice to his apartment, and she
appeared obviously sick and lethargic and appellant carried her the entire time. They
attempted to feed Eunice when she seemed to be feeling better, whereupon she vomited.
Braskett also testified that appellant attempted to contact veterinarians, all of whom
wanted a prohibitive fee in advance. Appellant appeared to care for and protect Eunice as
best he could by carrying her and holding her.
      {¶ 12} Appellant testified in his own defense. He stated that he had graduated
from high school with good grades and served between five and seven years as a
No. 14AP-1032                                                                              5

paramedic and firefighter. He had resided in the Chantry residence approximately three
years before the events in question. On March 27, 2014, he came home to his apartment
and noticed that Eunice was acting strangely, but she was still able to walk. Appellant
tried to get Eunice to eat, and when she tried her legs went limp. Appellant summoned
Revilla, who opined that appellant needed to get Eunice some veterinary attention
quickly. Later, appellant took the dog to Braskett's apartment, where Eunice had her first
seizure. He administered CPR when she seized and vomited several times. He then
attempted to contact approximately 20 veterinarians, but only 1 answered because of the
late hour. That veterinarian wanted more money than appellant could provide, even after
contacting relatives and his mother's church seeking financial assistance.        Appellant
testified that he believed that at this point he had exhausted all his options for securing
care for Eunice. When Chamberlain came to the apartment the next day, appellant was
reluctant to allow him to enter. Appellant eventually relented and allowed Chamberlain
to take the dog because Chamberlain threatened to get a warrant to do so without
consent. Appellant testified consistently that he had never harmed the dog and he had
done everything within his means to assist Eunice with her injuries.
       {¶ 13} At the close of evidence, appellant's counsel objected to the jury instructions
on the R.C. 959.131(B) charge because this included references to every defined
alternative means of committing the offense, including various means that were not
charged in the complaint or supported by any evidence. Counsel also objected to
amendment of the second charge from a violation of R.C. 959.131(C)(1), alleging an act of
commission, to R.C. 959.131(C)(2), alleging an act of omission. Counsel for appellant also
moved to dismiss both charges on the basis that R.C. 959.131 was unconstitutional and
void for vagueness in various ways. The trial court overruled the objections to the jury
instructions and motion to dismiss.
       {¶ 14} After the jury returned guilty verdicts on both charges, the court entered
judgment accordingly. Appellant brings the following four assignments of error on appeal:
              [I.] Appellant's conviction and sentence for violating R.C.
              959.131(B) is void because his right to a unanimous jury
              verdict under Crim.R. 31(A) was violated by the court's failure
              to properly instruct the jury.
No. 14AP-1032                                                                              6

             [II.] The trial court erred by not dismissing the charges
             alleging violations of R.C. 959.131(B) and 959.131(C)(2) since
             the requirement found in both that there exist "a reasonable
             remedy or relief" is unconstitutionally vague which voids the
             application of these statutes through the operation of the Due
             Process Clauses of the Fifth and Fourteenth Amendments of
             the United States Constitution and Article I, Sections 1 and 16
             of the Ohio Constitution. Appellant's convictions must
             therefore be vacated.

             [III.] The jury's verdict convicting Appellant of the offenses
             below was not supported by the manifest weight of the
             evidence.

             [IV.] Because Appellant's convictions were not supported by
             legally sufficient evidence they were obtained in violation of
             the Due Process Clauses of the Fifth and Fourteenth
             Amendments of the United States Constitution, Article I,
             Sections 1 and 16 of the Ohio Constitution, and Crim.R. 29.

      {¶ 15} Appellant's first assignment of error addresses the trial court's jury
instruction regarding R.C. 959.131(B). The trial court's instruction as given tracks the
statutory language of R.C. 959.131(B), which provides a series of independent alternative
means by which a defendant may commit the defined crime:
             No person shall knowingly torture, torment, needlessly
             mutilate or maim, cruelly beat, poison, needlessly kill, or
             commit an act of cruelty against a companion animal.

      {¶ 16} The jurors were instructed that they could find appellant guilty of this
charge if they found beyond a reasonable doubt that appellant "did knowingly torture,
torment, needlessly mutilate or maim, cruelly beat, poison, needlessly kill, or commit an
act of cruelty against a companion animal." (Tr. Vol. III, 419-20.) The court acknowledged
that the alternate means, aside from "cruelly beat," were not relevant to the crime as
charged and the evidence presented, but nonetheless decided that the complete
instruction on all alternate means contained in the statute was nonetheless appropriate.
      {¶ 17} Appellant asserts that the jury instruction on the R.C. 959.131(B) charge was
erroneous because it deprived him of his right to the unanimous jury verdict required by
Crim.R. 31(A); the jurors, although in general agreement that he was guilty, could
conceivably have failed to agree on the proven means by which he committed the offense.
No. 14AP-1032                                                                               7

Appellant asserts that this violates the rule in State v. Gardner, 118 Ohio St.3d 420, 2008-
Ohio-2787, ¶ 49, governing jury unanimity in alternative means cases. Gardner holds
that while Crim.R. 31(A) does not require jury unanimity as to the specific alternative
means supporting conviction, there must be sufficient evidence to support each charged
alternative means upon which the jury was instructed, so that "a rational trier of fact
could have found each means of committing the crime proved beyond a reasonable
doubt." Id. at ¶ 49.
       {¶ 18} Plaintiff-appellee, State of Ohio, responds that a looser rule stated in Griffin
v. United States, 502 U.S. 46 (1991), requires only that one of the instructed alternative
grounds be supported by sufficient evidence, with the assumption that jurors will
disregard the alternative grounds that are not so supported. In the alternative, the state
argues that if Gardner compels a finding that the trial court's instructions in this case
were erroneous, that error was harmless.
       {¶ 19} When reviewing a trial court's jury instructions, the proper standard of
review for an appellate court is whether the trial court's refusal to give a requested jury
instruction constituted an abuse of discretion under the facts and circumstances of the
case. State v. Stewart, 10th Dist. No. 10AP-526, 2011-Ohio-466, ¶ 9, citing State v.
Wolons, 44 Ohio St.3d 64, 68 (1989). The term "abuse of discretion" connotes more than
an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary
or unconscionable. State v. Clark, 71 Ohio St.3d 466, 470 (1994). "Jury instructions that
effectively relieve the state of its burden of persuasion violate a defendant's due process
rights," and subvert the presumption of innocence and the right to have a jury determine
the facts of a case. State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, ¶ 97, citing
Sandstrom v. Montana, 442 U.S. 510 (1979); Carella v. California, 491 U.S. 263, 265
(1989).
       {¶ 20} In Gardner, the Supreme Court of Ohio "adopted the rule that each
possibility in an alternative means case must be supported by sufficient evidence." State
v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 290, citing Gardner at ¶ 49. In Adams,
2015-Ohio-3954, the Supreme Court of Ohio expressly refused to abandon that rule in
favor of the rule adopted by the United States Supreme Court in Griffin governing federal
prosecutions. Adams, 2015-Ohio-3954, at ¶ 291, citing Griffin at 56-57. The Supreme
No. 14AP-1032                                                                               8

Court noted that "Griffin was premised on a dubious assumption of juror infallibility: the
jury will always disregard an unproven theory and convict only on the proven theory." Id.,
citing Griffin at 59.
       {¶ 21} As Adams, 2015-Ohio-3954, makes clear, the Supreme Court still strongly
adheres to the rule stated in Gardner. The Supreme Court's ruling in Gardner is based on
Crim.R. 31(A), rather than constitutional due process considerations: "[T]his opinion will
proceed on the understanding that unanimity in a juror verdict in state courts is not
protected by the federal Constitution." Gardner at ¶ 35. Reflecting this, Adams makes
clear that the Supreme Court does not consider its decision in Gardner to conflict with the
United States Supreme Court's decision in Griffin governing federal prosecutions. Adams,
2015-Ohio-3954, at ¶ 295. As a result, the cases cited by the state here are largely
inapposite either because they precede Gardner, e.g., State v. Sims, 8th Dist. No. 84090,
2005-Ohio-1978, or issue from states that apply Griffin to state court prosecutions, e.g.,
State v. Chapman, 229 Conn. 529, 540-47 (1994).
       {¶ 22} In final opposition to appellant's first assignment of error, the state argues
that even if Gardner applies strictly on the facts of this case, and the instructions given by
the trial court to the jury were thus in error, that error was harmless because no prejudice
to appellant could be discerned: it was clear which alternative means under the statute the
state emphasized and relied on for conviction, and the jury heard no evidence to support
the improperly-instructed alternative means of poisoning or intentionally killing the dog.
Without disputing this description of the evidence, we nonetheless find that the erroneous
jury instructions in the present case cannot be excused on grounds of harmless error.
       {¶ 23} Crim.R. 52(A) defines the doctrine of harmless error in criminal cases and
provides that "[a]ny error, defect, irregularity, or variance which does not affect
substantial rights shall be disregarded." Under the harmless error standard of review, "the
government bears the burden of demonstrating that the error did not affect the
substantial rights of the defendant." State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297,
¶ 15, citing United States v. Olano, 507 U.S. 725, 741 (1993).
       {¶ 24} Gardner itself is predicated on the fact that there may be so little evidence
adduced on alternative means that there was no risk of mistake on the part of the jury, yet
the jury instructions will still be in error for including the unsubstantiated alternative
No. 14AP-1032                                                                              9

means. It follows that the rationale of Gardner implies, or even mandates, a presumption
of prejudice that leaves little room for the application of a harmless error analysis, in
sharp contrast with Griffin, which reverses the presumption. To apply a harmless error
analysis to Gardner is to largely transform that case into Griffin, a step that directly
contravenes the Supreme Court's express rejection of Griffin in Gardner and Adams,
2015-Ohio-3954. Because Gardner expressly states that the defendant has a substantial
right to a unanimous jury verdict under Crim.R. 31(A), and instructing the jury on
unsupported alternative means, no matter how implausible, violates that right, we cannot
find harmless error in this case while complying with Gardner.
       {¶ 25} We accordingly sustain appellant's first assignment of error because the
trial court's jury instructions constituted error under Gardner, and, as a result, we reverse
appellant's conviction on the first charge alleging a violation of R.C. 959.131(B). This
reversal does not preclude retrial on the same charge because it does not represent a
reversal based on the sufficiency of the evidence; the state presented sufficient evidence to
support conviction on one of the instructed alternative means of committing the offense,
and the error lies only in the instructions that followed.
       {¶ 26} Appellant's second assignment of error asserts that R.C. 959.131(B) and (C)
are unconstitutionally vague because these sections make it an offense if a pet owner fails
to seek "reasonable remedy or relief" for an injured animal, and that phrase is too broad
and imprecise.
       {¶ 27} Enactments of the General Assembly are presumed constitutional and must
be clearly incompatible with applicable constitutional provisions before a court may
declare them unconstitutional. State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142
(1955), paragraph one of the syllabus; State v. Beavers, 10th Dist. No. 11AP-1064, 2012-
Ohio-3654, ¶ 9. " 'Under the vagueness doctrine, statutes that do not fairly inform a
person of what is prohibited will be found unconstitutional as violative of due process.' "
State v. Carrick, 131 Ohio St.3d 340, 2012-Ohio-608, ¶ 14, quoting State v. Reeder, 18
Ohio St.3d 25, 26 (1985). The test does not require impossible standards of specificity but
considers whether the language conveys sufficiently definite warning as to the proscribed
conduct. Id. A criminal statute is not void solely because it might have been worded more
precisely. Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, ¶ 86.
No. 14AP-1032                                                                            10

       {¶ 28} Appellant here makes both a facial vagueness challenge and an as applied
challenge to the statutes.      An "as applied" challenge asserts that a statute is
unconstitutional as applied to the challenger's particular conduct. Columbus v. Meyer,
152 Ohio App.3d 46, 2003-Ohio-1270, ¶ 31 (10th Dist.). In contrast, a facial vagueness
challenge asserts that the law is unconstitutional as applied to the hypothetical conduct of
any person, without reference to the defendant's specific conduct and circumstances. Id.
"Facial-vagueness challenges are generally allowed only where the statute is vague in all of
its applications." State v. Williams, 88 Ohio St.3d 513, 532 (2000). A defendant must
therefore " 'prove, beyond a reasonable doubt, that the statute was so unclear that he
could not reasonably understand that it prohibited the acts in which he engaged.' "
Carrick at ¶ 15, quoting State v. Anderson, 57 Ohio St.3d 168, 171 (1991). The two types of
challenge may be discussed together on these facts.
       {¶ 29} R.C. 959.131(B) provides that no person shall knowingly "torture * * * or
commit an act of cruelty against a companion animal." Cruelty, torment, and torture
include acts of commission or omission 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), incorporated by reference in R.C. 959.131(B).
       {¶ 30} R.C. 959.131(C)(2) also uses the term "reasonable remedy or relief" when
defining an act of negligence or omission of care. Appellant argues that in both sections,
the term "reasonable remedy or relief" is unconstitutionally vague. In his case, appellant
argues his lack of means severely restricted the possibility of reasonable remedy or relief,
and the law would necessarily require a different standard to assess his conduct compared
to a pet owner who could afford an after-hours consultation with a veterinarian or a visit
to an animal hospital emergency room.
       {¶ 31} We find to the contrary that the objective standard is sufficiently well
defined in both subsections to afford a person of ordinary intelligence fair notice of the
proscribed conduct.     The fact that different circumstances might affect the factual
reasonableness and availability of a remedy or relief does not make the statute
unconstitutionally vague on its face, but merely allows the finder of fact to make
allowances for reasonableness of conduct in light of the defendant's personal
circumstances. This is because invocation of the "reasonable person" standard in criminal
No. 14AP-1032                                                                              11

statutes and ordinances does not, of itself, render the statute excessively vague. It is
sufficiently clear to define prohibited conduct. Columbus v. Kendall, 154 Ohio App.3d
639, 2003-Ohio-5207, ¶ 13 (10th Dist.); see also Kovacs v. Cooper, 336 U.S. 77 (1949);
Village of Kelleys Island v. Joyce, 146 Ohio App.3d 92 (6th Dist.2001); Village of Edison
v. Jenkins, 5th Dist. No. CA893 (June 7, 2000). As a result, we find the statute is not
unconstitutionally vague on its face, nor, given our review of the facts, was it
unconstitutionally applied to appellant's circumstances.        The prohibited conduct is
sufficiently clear both on the face of the statute and in relation to appellant's personal
circumstances, and appellant's second assignment of error is overruled.
       {¶ 32} Appellant's third and fourth assignments of error assert together that
appellant's conviction is against the manifest weight and sufficiency of the evidence. The
legal concepts of sufficiency of the evidence and weight of the evidence involve different
determinations. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
       {¶ 33} As to sufficiency of the evidence, " 'sufficiency' is a term of art meaning that
legal standard which is applied to determine whether the case may go to the jury or
whether the evidence is legally sufficient to support the jury verdict as a matter of law."
Id., citing Black's Law Dictionary 1433 (6 Ed.1990). A determination as to whether the
evidence is legally sufficient to sustain a verdict is a question of law. Id. The relevant
inquiry on review of the sufficiency of the evidence is whether, "after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt." (Emphasis sic.) Jackson
v. Virginia, 443 U.S. 307 (1979), paragraph 1(b) of the syllabus; State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus.         As a result, when we review the
sufficiency of the evidence, we do not on appeal reweigh the credibility of the witnesses.
State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79. A reversal based on
insufficient evidence has the same effect as a not guilty verdict because such a
determination "means that no rational factfinder could have voted to convict the
defendant." Tibbs v. Florida, 457 U.S. 31, 41 (1982).
       {¶ 34} As opposed to the concept of sufficiency of the evidence, the court in
Thompkins noted that "[w]eight of the evidence concerns 'the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather than
No. 14AP-1032                                                                              12

the other. It indicates clearly to the jury that the party having the burden of proof will be
entitled to their verdict, if, on weighing the evidence in their minds, they shall find the
greater amount of credible evidence sustains the issue which is to be established before
them. Weight is not a question of mathematics, but depends on its effect in inducing
belief.' " (Emphasis sic.) Thompkins at 387, quoting Black's at 1594. As the finder of fact,
the jury is in the best position to weigh the credibility of testimony by assessing the
demeanor of the witness and the manner in which he testifies, his connection or
relationship with the parties, and his interest, if any, in the outcome. The jury can accept
all, a part, or none of the testimony offered by a witness, whether it is expert opinion or
eyewitness fact, whether it is merely evidential or tends to prove the ultimate fact. State v.
McGowan, 10th Dist. No. 08AP-55, 2008-Ohio-5894, ¶ 13, citing State v. Antill, 176 Ohio
St. 61, 67 (1964).
       {¶ 35} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
"thirteenth juror" and disagrees with the factfinder's resolution of the conflicting
testimony. Thompkins at 387. An appellate court should reverse a conviction as against
the manifest weight of the evidence in only the most "exceptional case in which the
evidence weighs heavily against conviction," instances in which 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. Martin, 20 Ohio App.3d 172, 175 (1st
Dist.1983).
       {¶ 36} Appellant's challenge to the manifest weight of the evidence supporting his
conviction under R.C. 959.131(B) is rendered moot by the fact that we reverse that
conviction based on the trial court's erroneous jury instructions. We nonetheless address
appellant's contention that there was insufficient evidence to support a conviction on that
charge because a reversal on the sufficiency of the evidence would preclude retrial.
       {¶ 37} A brief review of the evidence presented at trial establishes that there was
sufficient evidence to support conviction for a violation of R.C. 959.131(B). Appellant did
not deny that Eunice was with him throughout the period in which she went from a
healthy, active puppy to a sick, nearly comatose dog, suffering seizures, unable to eat,
vomiting, and giving sign of an obviously severe neck injury. Appellant admitted in his
No. 14AP-1032                                                                              13

statement to witnesses that he frequently found the dog underfoot. The jury was free to
disbelieve appellant's evidence that he thought Eunice had eaten some glue, paint, or
other substance causing her to suffer, and the jury was also free to consider the motives
behind these unsupported statements. The jury manifestly also could refuse to give
credence to appellant's claim that, despite his training as a paramedic and firefighter, he
was completely unaware of Eunice's severe neck injury, which was obvious to not only
veterinarian and humane society investigators, but to appellant's neighbors. There was
also sufficient evidence for the jury to conclude that, based on the dog's condition,
appellant should have heeded his neighbor's advice and immediately sought veterinary
assistance for Eunice. All of this evidence, and the permissible inferences to be drawn
therefrom, constitute sufficient evidence to sustain appellant's conviction for a violation of
R.C. 959.131(B).
       {¶ 38} The same evidence also supports appellant's conviction for a violation of
R.C. 959.131(C)(2), based on his unreasonable delay in seeking medical attention for
Eunice long after it became apparent to several observers that she was in pain and gravely
injured. The jury heard evidence that appellant had difficulty raising the funds to advance
money for an after-hours visit to a veterinarian. The jury also had before it evidence that
appellant had access to other resources and could have consulted the humane society
before its investigators were called in response to appellant's neglect of his dog. The
language of the statute called for appellant to take reasonable means to alleviate the dog's
suffering, and the jury could find on these facts that appellant had reasonable
opportunities to do so but did not act on them. His conviction on that charge is supported
by sufficient evidence and not against the manifest weight of the evidence.
       {¶ 39} Appellant's third assignment of error is rendered moot in part and
overruled in part, and his fourth assignment of error is overruled.
       {¶ 40} In summary, the trial court committed reversible error in disregarding
Gardner and instructing the jury on alternative means for which there was no evidentiary
support. The verdicts rendered by the jury were not otherwise against the manifest weight
of the evidence and were supported by sufficient evidence. The criminal statutes under
which appellant was charged and convicted are not unconstitutionally vague. Based on
the foregoing, appellant's first assignment of error is sustained, appellant's second and
No. 14AP-1032                                                                             14

fourth assignments of error are overruled, and his third assignment of error is overruled
in part and rendered moot in part. The judgment of the Franklin County Municipal Court
is reversed in part, and the matter is remanded for further proceedings.
                                                            Judgment reversed in part and
                                                                        cause remanded.

                                  KLATT, J., concurs.
                                BRUNNER, J., concurring.

BRUNNER, J., concurring.
       {¶ 41} I concur with the decision of the majority but wish to separately address the
void for vagueness argument offered by Rawson and expand on the majority's analysis on
the question of whether the statute is vague as applied to Rawson.
       {¶ 42} "[T]he void-for-vagueness doctrine requires that a penal statute define the
criminal offense with sufficient definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). " 'No one
may be required at peril of life, liberty or property to speculate as to the meaning of penal
statutes.' " Chicago v. Morales, 527 U.S. 41, 58 (1999), quoting Lanzetta v. New Jersey,
306 U.S. 451, 453 (1939).       In a facial challenge, "assuming the enactment [being
challenged] implicates no constitutionally protected conduct, [a court] should uphold the
challenge only if the enactment is impermissibly vague in all of its applications. A
[person] who engages in some conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others." Hoffman Estates v. Flipside,
Hoffman Estates, 455 U.S. 489, 494-95 (1982). "An 'as applied' challenge asserts that a
statute is unconstitutional as applied to the challenger's particular conduct." Corsi v. Ohio
Elections Comm., 10th Dist. No. 11AP-1034, 2012-Ohio-4831, ¶ 11, citing Columbus v.
Meyer, 152 Ohio App.3d 46, 2003-Ohio-1270, ¶ 31 (10th Dist.).
       {¶ 43} There is no doubt that R.C. 959.131 is a broad statute, written to encompass
all manner of mistreatment of animals. To be guilty of violating R.C. 959.131(C), one
must "negligently * * * [c]ommit any act [or] * * * [o]mit any act of care by which
unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue,
when there is a reasonable remedy or relief, against the companion animal." However the
No. 14AP-1032                                                                             15

definition of negligence clarifies why this case does not result in R.C. 959.131(C) being
vague as applied to Rawson:

              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.

(Emphasis added.) R.C. 2901.22(D).
       {¶ 44} Here, the dog's spinal cord was compressed between C1 and C2 vertebrae,
the eyes were bulging and glazed, the tongue was extruded, and the limbs were rigid and
non-responsive. The dog's condition was not a case where an otherwise conscientious pet
owner adopted a wait-and-see approach in the face of somewhat ambiguous symptoms
and was thereafter prosecuted. Rather, this was a case where an animal was obviously in
extremis, and the owner either caused the condition in the first place or failed to seek help
from resources that were available to him. For example, Rawson's case manager testified
that his clients are provided with emergency after-hours contact protocols to use when
they need immediate assistance. Moreover, when the animal rescue officials arrived,
Rawson would not allow them to enter the apartment; although, he did allow them to
examine the dog in the hallway. This situation bespeaks a substantial lapse of due care by
Rawson. The statute as applied to Rawson is not vague. R.C. 2901.22(D); Kolender at
357.
       {¶ 45} I concur in the result reached by the majority with the specific clarification
that the statute is not vague as applied in this case for the reasons expressed in this
separate opinion.
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