[Cite as State v. Ham, 2009-Ohio-3822.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              WYANDOT COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 16-09-01

        v.

DARLA M. HAM,                                             OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Upper Sandusky Municipal Court
                          Trial Court No. CRB 08-00110A

             Judgment Affirmed in Part and Sentence Vacated in Part

                            Date of Decision:   August 3, 2009




APPEARANCES:

        David K. Goodin for Appellant

        Kathryn M. Collins for Appellee
Case No. 16-09-01


PRESTON, P.J.

        {¶1} Defendant-appellant, Darla M. Ham (hereinafter “Ham”), appeals

the Upper Sandusky Municipal Court’s judgment of conviction and imposition of

restitution. For the reasons that follow, we affirm Ham’s conviction but vacate the

trial court’s restitution order.

        {¶2} On March 13, 2007, an anonymous caller claiming to be one of

Ham’s neighbors reported to the Wyandot County Sheriff’s Office that a dead dog

was located in a chain-link-fenced area at Ham’s residence. (Oct. 21, 2008 Tr. at

6-7). When the sheriff’s deputy arrived at Ham’s residence, he found two dogs, a

black Great Dane and a Jack Russell Terrier, that he determined were in very poor

health. (Id. at 7-8).

        {¶3} On March 18, 2008, two complaints were filed against Ham, each

charging her with one (1) count of animal cruelty in violation of R.C.

959.13(A)(1), second degree misdemeanors. (Doc. No. 1). The complaint in case

no. CRB-08-110A involved Ham’s black Great Dane. (Doc. No. 1).                                       The

complaint in case no. CR-08-110B involved Ham’s Jack Russell Terrier.1

        {¶4} On March 25, 2008, Ham filed a written plea of not guilty to the

complaints and requested a pretrial. (Doc. No. 4).



1
 In her brief to this Court, Ham stated that a “complaint with two counts” was filed; however, upon review
of the record, we find that the two charges were filed in separate complaints and given two different case
numbers. (Appellant’s Brief at iv). (Oct. 21, 2008 Tr. at 4, 104); (See, also, Doc. Nos. 1, 4, 5, 8, 10).


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       {¶5} Case numbers CR-08-110A and CR-08-110B were consolidated for

purposes of trial. (See Doc. Nos. 28-34). On October 21, 2008 a bench trial was

held wherein the trial court found Ham not guilty in case no. CR-08-110B,

involving the Jack Russell Terrier, but guilty in case no. CR-08-110A, involving

the black Great Dane. (Oct. 21, 2008 Tr. at 104-10); (Doc. No. 35). Ham was

fined $100, ordered to pay court costs, sentenced to ninety (90) days in jail, with

all days suspended, placed on probation for three (3) years, and ordered to perform

twenty (20) hours of community service. (Doc. No. 35). The trial court further

ordered that Ham forfeit the Great Dane to the Wyandot County Humane Society

and that she pay restitution in the amount of $3,126.72. (Id.).

       {¶6} On November 19, 2008, Ham filed a notice of appeal. (Doc. No. 45).

This appeal was assigned appellate case no. 16-08-20 but was dismissed for lack

of a final appealable order on December 8, 2008. (Doc. No. 53). On December

17, 2008, the trial court filed a nunc pro tunc entry, from which Ham filed another

appeal on January 12, 2009. (Doc. Nos. 54, 57).

       {¶7} Ham now appeals her conviction in case no. CR-08-110A raising

two assignments of error for our review.

                       ASSIGNMENT OF ERROR NO. I

       THE EVIDENCE IS INSUFFICIENT TO SUPPORT A
       CONVICTION UNDER ORC §959.13(A)(1) AND AGAINST
       THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE
       THE STATE FAILED TO PROVE BEYOND A


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       REASONABLE           DOUBT        EACH       ELEMENT         OF     THE
       OFFENSE.

       {¶8} In her first assignment of error, Ham argues that her conviction was

based upon insufficient evidence and against the manifest weight of the evidence.

Specifically, Ham argues that she was not the dog’s caretaker but entrusted the

feeding and watering of the dog to her sixteen-year-old daughter. Furthermore,

Ham points out that, although no water was found with the dog, the evidence

demonstrated that the dog had access to water. With regard to the dog’s weight,

Ham alleges that the dog had a history of being underweight because it consumed

contaminated dog food. Ham also notes that the trial court did not rely upon any

findings of fact relating to her failure to seek veterinary care for the dog.

       {¶9} The State, on the other hand, argues that the evidence regarding the

Great Dane’s poor physical condition was “overwhelming.” (Appellee’s Brief at

4). The State also argues that Ham’s failure to seek timely and critically necessary

veterinary care is torture within the meaning of R.C. 959.13(A)(1). The State

further argues that evidence presented demonstrated that the dog did not have

access to food or water.

       {¶10} As a preliminary matter, we note that Ham failed to move for a

Crim.R. 29(A) judgment of acquittal. However, Ham was tried to the bench, and

“[i]n [a] non-jury trial * * * the defendant’s plea of not guilty serves as a motion

for judgment of acquittal, and obviates the necessity of renewing a Crim.R. 29


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motion at the close of all the evidence.” City of Dayton v. Rogers (1979), 60 Ohio

St.2d 162, 163, 398 N.E.2d 781, overruled on other grounds by State v. Lazzaro

(1996), 76 Ohio St.3d 261, 667 N.E.2d 384. See, also, State v. Stoner, 2nd Dist.

No. 2008 CA 83, 2009-Ohio-2073, ¶22 and State v. Bidlack (Oct. 16, 1987), 3d

Dist. No. 11-85-8, at *1, both citing Rogers, 60 Ohio St.2d 162.

       {¶11} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks (1981),

61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, superseded by

state constitutional amendment on other grounds in State v. Smith (1997), 80 Ohio

St.3d 89, 684 N.E.2d 668. Accordingly, “[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.” Id.

       {¶12} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine the entire record,

“‘[weigh] the evidence and all reasonable inferences, consider the credibility of

witnesses and [determine] whether in resolving conflicts in the evidence, the [trier

of fact] clearly lost its way and created such a manifest miscarriage of justice that



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the conviction must be reversed and a new trial ordered.’” State v. Thompkins

(1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541, quoting State v. Martin (1983),

20 Ohio App.3d 172, 175, 485 N.E.2d 717. A reviewing court must, however,

allow the trier of fact appropriate discretion on matters relating to the weight of the

evidence and the credibility of the witnesses. State v. DeHass (1967), 10 Ohio

St.2d 230, 231, 227 N.E.2d 212.

       {¶13} At the bench trial, the State presented four witnesses.           Deputy

Dennis Wilson, a Wyandot County Sheriff’s Deputy since 1992, testified that on

March 13, 2008 an anonymous caller alleging to be Ham’s neighbor reported that

there was a dead dog in a chain-link-fenced area at Ham’s residence. (Oct. 21,

2008 Tr. at 4-7). When Deputy Wilson arrived on the scene he started taking

pictures of the dog, but the dog never moved until after he had taken two or three

pictures of it. (Id. at 7). Wilson testified that the dog then picked its head up but

never got up from lying down. (Id.). Wilson called the humane society and asked

them to come to the scene and determine what should be done with the dog. (Id.).

Wilson testified that the dog he photographed was a black Great Dane that was

“very skinny, hips were showing, ribs were showing, [and] had a very large

swollen leg that was hot to [the] touch.” (Id. at 7-8). Wilson further testified that

the humane society thought the dog was a very bad case, and that they had to carry

the dog out of the pen. (Id. at 7). Wilson also testified that he located a Jack



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Russell Terrier (“Terrier”) in a smaller pen, approximately 10-15 square feet in

size, and that the pen was muddy. (Id. at 8). Wilson testified that food dishes in its

pen were full of water and leaves, and the water bucket was mostly full of ice.

(Id.). According to Wilson, the Great Dane had an entrance into a building where

there was accessible food, but the dog was not very ambulatory. (Id.). Wilson

further testified that the Great Dane did not have access to the Terrier’s pen, and

that the Terrier did not have access to the building where the dog food was

located. (Id. at 9).

       {¶14} Deputy Wilson identified State’s exhibit A as several photographs he

had taken at Ham’s residence, including a picture of Ham’s mailbox showing the

address to be located in Wyandot County, Ohio. (Id. at 9-10); (State’s Ex. A). The

photographs included: the dog’s fenced-in area; the dead raccoon found in the

Great Dane’s pen; the Great Dane’s leg and foot that appeared swollen and

infected; an empty water bucket; the Terrier’s pen with ice-filled water bucket; the

building to which the Great Dane had access to food; pictures of the Great Dane

standing; a note that he left at the residence for Ham; and vultures that had

gathered on the Great Dane’s pen. (State’s Ex. A); (Oct. 21, 2008 Tr. at 9-16).

Wilson further testified that the Terrier’s ribs were showing, but that the humane

society did not believe this dog needed immediate medical attention. (Id. at 13-

14). Wilson testified that after the humane society arrived, the Great Dane stood



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up in the same spot for about 10 minutes and then went about 10 to 20 feet to sniff

the dead raccoon carcass. (Id. at 14-15). The Great Dane did not really place

weight on the injured leg but did put it on the ground according to Wilson. (Id. at

15).

       {¶15} Deputy Wilson testified that he was unable to contact Ham that day

but was able to contact her at her place of employment a couple days later. (Id. at

16-17). Wilson identified Ham in open court. (Id. at 17). Wilson testified that he

returned to Ham’s residence on March 17th and found the Terrier’s food dishes in

the same condition, and that the dog appeared thinner but still not extreme. (Id. at

18).

       {¶16} On cross-examination, Deputy Wilson testified that the Great Dane

did not move until 10 to 15 minutes after he arrived on the scene and did not get

up until after 30 to 45 minutes. (Id. at 19). Wilson testified that he noticed the

dog’s leg was swollen but did not notice any bite marks, and that he inspected the

raccoon carcass. (Id. at 20). Wilson admitted that he remarked in his report that

the Terrier was much healthier than the Great Dane. (Id. at 21). Wilson also

admitted that there was dog food lying on the ground inside a building to which

the Great Dane had access. (Id.). Wilson testified that the Great Dane urinated for

approximately 10 minutes, and that “* * * a couple of pictures that [he] took of it,

you could see it kind of squatting.” (Id.). Wilson testified that when he asked Ham



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about why the Great Dane was so skinny, she informed him that it was due to

contaminated dog food that caused infections. (Id. at 22). Wilson testified that the

Great Dane’s pen was “very large” and “had room for other dogs.” (Id. at 23).

Wilson testified that the temperature the day of the incident was around 40

degrees, the snow was melting, and the ground was soft. (Id.).

       {¶17} Anne Beaston, a Wyandot County Humane Society employee for

over 10 years, testified that co-worker Mindy Vaughn and she went to help Deputy

Wilson investigate the case at Ham’s residence. (Id. at 25). Beaston testified that

when she arrived she noticed that the Great Dane was lying on the ground and not

getting up. (Id. at 26). Beaston further testified that she saw a bucket of food

knocked over in the area but did not see any water. (Id.). Beaston testified that she

entered the dog’s fenced area, and that the dog “did try to stand up” but that “[i]t

couldn’t put a lot of weight on its foot so [she] knelt down, [she] felt its leg, [and]

it was really hot.” (Id.). Beaston testified that the dog remained sitting and did not

stand up, so Mindy and she decided to drive the humane society van closer to load

the dog. (Id. at 27). Beaston testified “[w]e tried to get it to walk and it couldn’t

and we picked the dog up and put it in the back of the * * * van.” (Id.).

       {¶18} On the other hand, Beaston testified that the Terrier appeared

healthy, not underweight, and was jumping around in the pen. (Id.). She did not

see any food for the Terrier, but the water it had was green with leaves in it,



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though Beaston testified that she did not believe the Terrier was in immediate need

of assistance. (Id.). “The Great Dane, however, wasn’t able to stand, was very

thin, in [her] opinion, and didn’t look good. So [she] felt that dog needed

immediate intervention to save its life.” (Id.). Beaston identified State’s exhibit B

as several photographs she had taken of the Great Dane the day the dog entered

the humane society’s care. (Id. at 28-29); (State’s Ex. B).

       {¶19} On cross-examination, Beaston testified that the wounds found on

the Great Dane appeared relatively new, and that the photographs were taken prior

to the dog being cleaned. (Id. at 31-32). Beaston testified that she saw a dead

raccoon in the dog’s pen and admitted that the wounds could have been caused by

the raccoon. (Id. at 32). Beaston also admitted that Ham had previously worked at

the humane society, cleaning animal pens. (Id. at 33). Beaston testified that the

Terrier appeared healthy, active, and was not underweight. (Id. at 34). Beaston

further testified that the Great Dane swayed back and forth and was unable to stay

standing. (Id. at 35). Beaston admitted that the Great Dane had access to the

building where food was found. (Id.). On re-direct examination, Beaston testified

that she did not see the dog walk around the pen. (Id. at 36). She also testified that

she tried to coax the dog to walk to the van, but that every time, the dog would

wobble and fall over. (Id.)




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       {¶20} Mindy Vaughn, an employee at the Wyandot County Humane

Society for 6 years, testified that she helped Beaston investigate a complaint at

Ham’s residence on March 13, 2008. (Id. at 38). Vaughn testified that she went to

the Great Dane’s pen to see if he would walk; the dog got up but could not take

even two steps and laid back down. (Id.). Vaughn testified that she gave Beaston a

leash and moved the van closer to the dog’s pen, but that the dog could not walk.

(Id. at 39). Vaughn testified that the dog had “bite marks all down his * * * leg.”

(Id.). Vaughn testified that she did not see any water in the pen, but that she did

not go into the building that was accessible from the dog’s pen. (Id.).

       {¶21} On cross-examination, Vaughn testified that she stated in her report

that the dog came limping toward the fence. (Id. at 40). Vaughn testified that the

dog was about 20 to 30 feet away from the fence, but the dog did not make it all

the way to the fence. (Id.). Vaughn testified that the Terrier had water and was

active and healthy. (Id. at 41). She testified that the dead raccoon was lying right

beside the Great Dane, and that the dog could not walk due to his swollen leg.

(Id.). On re-direct, Vaughn testified that the Terrier’s water was green with leaves

in it, but that she did not look for food in its pen. (Id. at 42).

       {¶22} Dr. Jeff Heydinger, a veterinarian with over 30 years of experience

and employed at the Wyandot County Humane Society, testified that he examined




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the Great Dane when it was brought to the shelter on March 13, 2008. (Id. at 43,

44). Dr. Heydinger testified that:

       * * * [the dog’s] leg was swollen, I would say, twice the size of a
       normal. The dog looked very thin, easy to see the ribs. Very
       weak. I didn’t think the dog could stand. With a little help, we
       could get it to stand up. It had diarrhea. And the toes he had
       started some open wounds, abscess on his toes already.

       {¶23} (Id. at 45). Dr. Heydinger explained that an abscess is an infection

and that “–especially if they start like a puncture wound—you may not see

anything for a while. The skin seals over. The infection takes over and then when

it gets to the point where there’s enough pressure, the skin starts to die on top, then

it’ll open and drain out * * *.” (Id.). Dr. Heydinger opined that the Great Dane’s

injury was about a week to 10 days old. (Id.). Dr. Heydinger also testified that the

dog weighed 84 pounds, which he estimated was 20 to 30 pounds less than it

should have weighed. (Id. at 46). He testified that he gave the dog antibiotics and

anti-inflammatory medication for at least a couple of weeks, and that the swelling

began to go down about four to five days after the treatment began. (Id.). He

further testified that the dog’s condition would not have been as severe had

veterinary treatment been provided earlier. (Id.). On a scale of one to six, one

being emaciated and six being excessively overweight, Dr. Heydinger rated the

Great Dane at two when it first arrived at the shelter and five at the time of the

trial. (Id. at 46-47).



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       {¶24} Dr. Heydinger testified regarding his reports as well. He testified

that beginning on March 13th he started antibiotics because of the infection, and

because the dog had blood poisoning. (Id. at 47-48). On March 17th the dog

began to eat more, but he was concerned that the leg wound would develop

gangrene and the dog would lose tissue; however, the dog only lost some hair

since the infection was under control. (Id. at 48). Around March 20th, the dog

developed an upper respiratory infection, so from March 20th to March 27th he

administered a different antibiotic since the dog was not responding as expected to

the other antibiotic. (Id.). This new antibiotic was continued until April 2nd, and

all antibiotics were discontinued beginning April 9th. (Id. at 49). On April 7th,

the dog was reweighed at 94 pounds, and the dog’s leg was almost back to normal

size. (Id.). Dr. Heydinger also testified that the dog was given a flea and heart

worm treatment, and that, on October 8th, the dog weighed 104.7 pounds. (Id. at

49-50). He did not believe the dog would have survived without proper medical

care in the condition the dog was received by the humane society. (Id. at 51).

       {¶25} Dr. Heydinger testified that in late June a shelter worker commented

that the dog had a limp. (Id. at 49). He checked the dog and determined the limp

was normal for his confirmation. (Id.).         “Confirmation,” according to Dr.

Heydinger, is “body shape, uhm, probably * * * most obvious if a dog had real

crooked legs, that’s real obvious.” (Id. at 50). Dr. Heydinger testified that the



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Great Dane, “[h]e’s – his front leg, he kind of, like, wings out a little at his elbow.

And you can misinterpret that’s as a limp, but that’s just the way he’s built.” (Id.).

         {¶26} On cross-examination, Dr. Heydinger testified that the respiratory

infection developed while the dog was in the humane society’s care for two weeks.

(Id. at 51-52). He further testified that Aflatoxin is a mold-related problem that is

in some feed that can cause various illnesses. (Id. at 52). He acknowledged that

the mold releases a toxin that can affect the liver, kidneys, and digestive tract and

can lead to weight loss. (Id. at 52-53). Dr. Heydinger further testified that he

remembered hearing about a recall on Diamond dog food because it tested positive

for Aflatoxin. (Id. at 53). He testified that a dog’s saliva does not naturally heal

wounds, though the dog can keep a wound clean by licking it. (Id. at 55). Dr.

Heydinger also testified that the abscesses on the dog’s feet would not normally be

seen without actually separating the dog’s toes. (Id. at 55-56). On re-direct, he

testified that he had spread the dog’s toes because the feet were swollen. (Id. at

56). He further testified that Aflatoxin did not cause the injuries to the dog’s leg.

(Id.).

         {¶27} Thereafter, the State rested, and the defense called three witnesses.

(Id.). Jessica Ham testified that Darla Ham was her mother, and that she lives with

her mother. (Id. at 57). Jessica testified that she and her brother fed and watered

the Great Dane and Terrier every day. (Id. at 58). She testified that, on March



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13th, she arrived home from play practice after dark and went to feed and water

the Great Dane but could not find him. (Id.). She said she went to the kennel and

was walking around when she tripped over something; she went down to touch it,

and discovered it was not the dog but a dead raccoon. (Id. at 59). She testified that

she had not seen the raccoon before even though she had been in the pen earlier

that day and the prior evening. (Id.). When asked if the raccoon was a fresh

carcass, she testified, “I don’t know. It was dark. And when I tripped over it it

was kind of gooey, so I’m guessing, so – because – yeah – it was pretty gross.”

(Id.). Jessica also testified that she saw the Great Dane the day before and did not

see any wound on the dog’s leg. (Id. at 60). Jessica testified that she fed the Great

Dane inside a building where the dog had access, but fed the Terrier in its separate

kennel. (Id.). Jessica further testified that she would carry dog food to the building

from the back porch in a bucket. (Id. at 61). She testified that she found the food

and water buckets spilled over, and water and food was all over the ground in the

building. (Id. at 61-62). Jessica testified:

       So, like, I knew there used – like, it was completely full, like, if I
       were to, like, put everything back in the buckets, you could tell
       that they were full. Somebody must have dumped them or
       maybe the dog did and that’s why I was concerned and that’s
       why I went to go look for him because when I called he didn’t
       come. I was like, that’s weird, his buckets are knocked over,
       he’s not in the kennel, it’s nighttime, usually he’s sleeping now.




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       {¶28} (Id. at 62). Jessica testified that they used multiple dishes for food

and water because it was winter time. (Id. at 63). She testified that there was

melting snow on the ground, and that the one water bowl was frozen. (Id.).

       {¶29} On cross-examination, Jessica testified that it was dark when she

came home from play practice so she had to use a flashlight to check on the dog.

(Id. at 64). She testified that she carried the dog food from inside the house to the

building in probably a five gallon bucket. (Id. at 64-65). She testified that they use

multiple buckets and switch them as needed if they become muddy. (Id. at 65).

She testified that she filled the five gallon bucket full of dog feed everyday, but the

dog did not eat the whole bucket full of food each day. (Id.). Jessica testified that

her and her brother made sure that the bucket is full of food everyday and provide

fresh food everyday. (Id. at 66). She also testified that she filled up a five gallon

bucket of water every day for the dog. (Id.) Jessica testified that they use little

food buckets for the Terrier, but that she carries the five gallon bucket of food into

the kennel and dumps some out into its food pans. (Id. at 67). She testified that

she has been taking care of the dog ever since they owned him. (Id.).

       {¶30} Jessica further testified that they had several more dogs before, but

these dogs died because of bad dog food. (Id. at 68). She testified that her mother

used to breed Great Danes, but that she was responsible for feeding and watering

the animals. (Id.). She testified that they owned a Harlequin Great Dane, which



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died because it was older, and another dog named Nemo who also died because of

bad dog food. (Id. at 69). Jessica testified that, in total, five dogs died as a result

of the bad dog food they purchased, which was a year or two ago. (Id.). She

testified that she did not observe any fresh wounds or infection on the dog’s leg

and that she ran and played with the dog every day. (Id. at 69-70).

       {¶31} Lee Newman testified that he has dated Ham for a little over two

years and was familiar with the Great Dane and Terrier. (Id. at 71). He testified

that he used to purchase dog food for Ham and would help feed and water the dogs

if Ham asked him. (Id.). Newman identified defendant’s exhibit 1 as receipts from

the dog food he purchased from January 8, 2008, February 9, 2008, and March 10,

2008. (Id. at 72). He testified that he purchased 40 to 50 pounds of dog food per

month prior to the Great Dane being removed, and that this food was being fed to

the dog. (Id.). Newman testified that Ham’s daughter was responsible for feeding

the dog. (Id. at 73). He testified that he saw the dog a few days prior to March

13th, and the dog appeared fine and did not have any wounds. (Id.). Newman

testified that: Ham’s daughter feeds the dog after she arrives home from school;

the dog food was kept in a garbage pail on the back porch; and Ham’s daughter

fed and watered the dog every day using a five gallon bucket. (Id. at 74). Newman

also testified that the Terrier appeared to be healthy to him—proper weight and

active—and that he did not observe any wounds on the dog. (Id. at 75). On cross-



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examination, Newman testified that he did not own any dogs, and he was not at

Ham’s residence every day. (Id. at 76). He admitted that he could only testify that

on days he was at the residence the dogs had been fed. (Id.).

       {¶32} Darla Ham testified that she owns the Great Dane and the Terrier,

and that on March 13th the Great Dane was removed from her property. (Id. at

77). She testified that she never observed any swelling or injuries on the dog’s

leg, and she saw it every day when she came home from work. (Id.). She admitted

that she did not go into the dog’s kennel but observed the dog from about 30 feet

away. (Id. at 78). Ham further testified that the dog appeared active and was

walking normal as far as she could tell. (Id.). Ham testified that on March 13th

her daughter informed her that she could not find the dog, and that she found a

dead raccoon in the dog pen. (Id. at 79). Ham testified that her daughter fed the

dog on a daily basis by retrieving the food from the home as previously testified.

(Id. at 80). Ham testified that the Great Dane had always had a weight issue,

which she attributed to Diamond dog food. (Id. at 80-81). She testified that she

used to have a pallet of dog food (fifty two, fifty-pound bags) delivered to her

home at a time, but the last pallet of food was recalled due to Aflatoxin. (Id. at 81).

Ham testified that the Great Dane, as well as her other dogs, had been eating this

recalled food. (Id.). Ham testified that her other dogs had died as a result of this




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contaminated food, and that the food caused the dogs to get really sick. (Id. at 81-

82).

       {¶33} Ham further testified that she worked at the humane society for a

couple years but left because she disagreed with their policies. (Id. at 82). She

testified that the humane society would hide dogs from their owners, and that they

would not return the animal even if it had tags. (Id. at 83). Ham testified that she

was fired from the humane society because she objected to these practices. (Id.).

Ham testified that the humane society had expressed concerns over the Great

Dane’s weight about three (3) months prior to removing him, and she informed

them that she was trying to slowly put weight on the dog by using different types

of dog food. (Id. at 84-85). Ham testified that after she switched dog food, the dog

started to gain weight. (Id. at 85-86).

       {¶34} On cross-examination, Ham testified that she bred Great Danes

about four years ago, and that several dogs died around 2005 when she had trouble

with the Diamond dog food. (Id. at 86-87). Ham testified that a couple of dogs

and puppies died as a result. (Id. at 87). She testified that she was provided with a

replacement pallet of Diamond dog food for the recalled food, but that she did not

feel comfortable using this food. (Id. at 88). Ham testified that her boyfriend

began buying Old Yeller dog food at Kroger beginning about a year prior to the

incident. (Id.). She further testified that she was trying new types of dog food,



                                          - 19 -
Case No. 16-09-01


including Pamida dog food, to see which food worked the best. (Id.).           Ham

testified that she thought the Great Dane gained weight using the Old Yeller dog

food. (Id. at 89). Ham testified that she believed the dog had continuing health

issues related to the Aflatoxin from the Diamond dog food, but she did not take

him for veterinary care. (Id.). Ham acknowledged receiving the note from Deputy

Wilson, and testified that she went to the sheriff’s department but that he was not

there. (Id. at 90). Ham also admitted that she only saw the dog on her way into the

house from work, and it was usually dark outside when she finished work. (Id. at

90-91). On re-direct, Ham identified defense exhibit 2 as receipts for the Diamond

dog food she purchased as well as a recall notice for the food. (Id. at 91-92). Ham

testified that the Great Dane and Terrier ate the tainted food. (Id. at 92).

       {¶35} Thereafter, the defense rested and the State called Ann Beaston for

rebuttal. (Id. at 93). Beaston testified that the Great Dane was currently in good

health, had no marks on its legs, had gained weight, and was able to walk. (Id. at

94). She further testified that the dog was eating well. (Id.). Beaston identified

State’s exhibit C as pictures she had taken of the dog the day prior to her

testimony. (Id. at 95). She testified that the dog was outside running around the

yard, able to stand and lie down, and was much fuller in his face and body. (Id.).




                                         - 20 -
Case No. 16-09-01


      {¶36} After hearing the testimony and reviewing the exhibits, the trial

court found Ham guilty of animal cruelty with regard to the black Great Dane,

case no. CRB-08-110A, and stated:

           First, we’re going to look at the Great Dane. And I – I
      think it’s significant, at least in my mind it is, concerning the
      relationship between the defendant and the dog in question, that
      at no time did the Court ever hear these dogs referred to by
      name.
           The statute provides for a number of acts, error, omission
      or commission which constitute [sic] cruelty to animals,
      torturing, depriving of sustenance, and confining without
      sufficient quantity of good wholesome food and water are the
      three areas of the -- of the Court’s concern in these cases.
           Those were the elements which were touched on by the
      prosecutor.
      ***
           The Court read with interest the cases which were cited by
      the State and found them most instructive in dealing with the
      situation.
           The Dresbach case the Court allowed a finding of torture
      through neglect sustained as adequately supported by the
      evidence. In other words, what that Court found was that
      torture can consist of, uhm, passive acts, or neglect, as well as
      active cruelty towards -- towards a creature.
           Now, in this case the Court finds this particular dog, the
      Great Dane, to have been grossly neglected and allowed to suffer
      needlessly.
           The Court was particularly impressed by the medical
      testimony of Dr. Heydinger. Doctor Heydinger testified that the
      wounds in question were approximately 10 days old, and he
      provided adequate medical reasons why he was of such an
      opinion.
           The Court noted from the photographs that the wounds did
      not appear to be, uhm, fresh in the way that the -- the defendant
      characterized them as fresh. They appeared to be open. They
      appeared to be angry and there had certainly been adequate
      time for the swelling to develop.


                                    - 21 -
Case No. 16-09-01


            Uhm, in addition, the doctor testified that the abscesses
      between the toes which did exist had began to seep, which was
      additional evidence in his -- in his mind and formulated his
      opinion, that such wounds were not of recent vintage, but had
      been there for some time. The testimony I believe was that the
      wounds were approximately 10 days old, 7 to 10, I believe the
      doctor said.
            Now, the Court notes that Ms. Ham attributed the wounds
      to, uhm, a possible raccoon bite within the previous days this is
      contrary to the medical testimony. And the Court found also the
      testimony of the deputy in this regard and the testimony of the
      defendant’s daughter to be instructive. The deputy testified that
      the raccoon that he observed was rotted, and defendant’s
      daughter testified that it was “gooey” as the -- as they observed
      it in the dog’s pen.
            So the Court finds that this raccoon had not gotten in the
      pen, the dog had not fought with this raccoon within the
      previous day and sustained such bites in that -- in that way. It
      may well have been the raccoon but it certainly wasn’t within
      the previous day.
            The Court finds that by reason of its injuries, which went
      untreated for what the Court considers to be an unreasonable
      period here that the dog was allowed to suffer needlessly which
      the Court finds come [sic] within the definition of torture.
            The Court also finds that the dog was confined without
      sufficient quantity of food and water which it could adequately
      reach, given its physical condition.
            The Court noted that the defendant attributed it’s [sic]
      emaciated condition to - - to the eating problem caused by
      Aflatoxin. However, that occurred approximately one to two
      years before.
            The Court notes further that from the testimony of the
      shelter workers, and from Dr. Heydinger, that after the dog had
      begun to be properly fed, it gained substantial weight in the
      shelter and has regained its health.
            The Court further finds the defendant was reckless
      regarding the care, or lack thereof, of this particular dog. And in
      the Court’s mind could not have help but notice the emaciated
      condition of the dog, or the condition of its leg had she but
      looked. Failed to provide any adequate care for the dog, failed


                                    - 22 -
Case No. 16-09-01


           to provide treatment for the dog, deprived it of necessary --
           necessary sustenance and confined it without sufficient food and
           water that the Court had previously found.

(Id. at 105-09).

           {¶37} Ham now appeals the trial court’s finding of guilt in case no CRB-

08-110A, involving the black Great Dane. As a preliminary matter, however,

Ham noted that the trial court “did not rely upon any findings of fact relating to

[her] failing to seek veterinary care for [the Great Dane].” (Appellant’s Brief at 3).

A simple reading of the transcript, cited above, refutes Ham’s assertion. In any

event, Ham’s contention is irrelevant since she was tried to the court, and the trial

court was not required to make findings of fact. Struthers v. Williams, 7th Dist.

No. 07 MA 55, 2008-Ohio-6637, ¶24, citing Crim.R. 23(C)2.                                      In fact, any

purported findings of fact by the trial court are “mere surplusage without legal

significance.” State v. Crawford (Feb. 6, 1986), 10th Dist. No. 85AP-324, at *7.

On the other hand, “there is no rule preventing [an appellate court] from

considering the trial court’s specific factual findings when reviewing a conviction

to see whether it is against the manifest weight of the evidence.” Williams, 2008-

Ohio-6637, at ¶24. With that clarification, we now proceed to our analysis.

           {¶38} R.C. 959.13(A)(1) provides:

           (A)      No person shall:



2
    Crim.R. 23(C) provides: “[i]n a case tried without a jury the court shall make a general finding.”


                                                     - 23 -
Case No. 16-09-01


      (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;

       {¶39} .C. 959.13(A)(1) is not a strict liability offense; rather, the State must

show that the defendant acted recklessly. State v. Bergen (1997), 121 Ohio App.3d

459, 461, 700 N.E.2d 345, citing State v. Myers (1993), 87 Ohio App.3d 92, 621

N.E.2d 881, and State v. Lapping (1991), 75 Ohio App.3d 354, 599 N.E.2d 416.

R.C. 2901.22(C) provides that:

       A person acts recklessly when, with heedless indifference to the
       consequences, he perversely disregards a known risk that his
       conduct is likely to cause a certain result or is likely to be of a
       certain nature. A person is reckless with respect to
       circumstances when, with heedless indifference to the
       consequences, he perversely disregards a known risk that such
       circumstances are likely to exist.

       {¶40} After reviewing the evidence presented above, we cannot conclude

that Ham’s conviction was against the manifest weight of the evidence. To begin

with, all the State’s witnesses testified that the Great Dane was extremely

emaciated and weakened to the point that it could not remain standing without

assistance. Deputy Wilson testified that the dog’s ribs and hip bones were readily

visible. (Oct. 21, 2008 Tr. at 7-8, 26-27, 38-39). In fact, the dog had to be carried

out of the pen for veterinary care. (Id.). Aside from the testimony, several pictures

taken of the dog by Deputy Wilson at Ham’s residence were admitted into



                                        - 24 -
Case No. 16-09-01


evidence. These pictures reveal a dog that is underweight and has many bones

protruding. (State’s Ex. A).    Dr. Heydinger also testified that, when the dog

arrived at the humane society, it weighed 84 pounds, which he thought was about

20 to 30 pounds underweight. (Oct. 21, 2008 Tr. at 46-47). Dr. Heydinger gave

the dog a score of “two” on a one-to-six scale, one being emaciated and six being

excessively overweight. (Id.). After less than one month (Mar. 13 to Apr. 7) of

veterinary care, the dog gained 10 pounds, and by October 8th, the dog weighed

104.7 pounds. (Id. at 49-50). Aside from this testimony, the trial court had several

photographs taken at the humane society when the dog was initially brought there,

which depict a very thin, emaciated dog with many bones protruding through its

coat. (State’s Ex. B).    The trial court also had pictures of the dog after its

veterinary treatment at the humane society, and the dog looks much healthier and

heavier in these pictures. (State’s Ex. C). From this evidence, the trial court could

have reasonably concluded that the dog was not being provided a sufficient

quantity of wholesome food. With regard to the evidence that the dog had food

provided in the building attached to the dog’s pen, the trial court specifically found

that the dog did not have access to the food given his physical condition, and the

evidence in the record supports this finding as well. (Oct. 21, 2008 Tr. at 108).

       {¶41} Ham argues that the evidence demonstrated that the dog did have

access to water since Deputy Wilson testified that he witnessed the dog urinate for



                                        - 25 -
Case No. 16-09-01


over ten minutes. While Ham’s recollection of the testimony is correct, that does

not mean the dog had access to a sufficient quantity of good, wholesome water.

Deputy Wilson testified that the ground was covered with melting snow and mud;

thus, the dog might well have obtained water from eating snow or drinking water

from water puddles in its pen. (See id. at 22); (State’s Ex. A). Furthermore, that

the dog had access to water is insufficient, it must have access to sufficient

quantities of both food and water under the statute. R.C. 959.13(A)(1). Since the

evidence supported finding that the dog was not provided with a sufficient

quantity of good, wholesome food, it is irrelevant whether or not it was provided

with water.

      {¶42} Ham also argues that the State failed to show that she acted

recklessly in failing to provide a sufficient quantity of good, wholesome food. We

disagree. The evidence here demonstrates that Ham was aware of the dog’s

emaciated condition and irrationally attributed the dog’s continued condition to

tainted food the dog ate three years ago. (See Oct. 21, 2008 Tr. at 81-82, 84-85,

89). In fact, Ham testified that the humane society expressed concern to her about

the dog’s weight in December 2007, almost three months prior to the dog being

removed; and yet, Ham continued to do nothing. (Id. at 89). This fact makes this

case distinguishable from State v. York, cited by Ham. 11th Dist. No. 97-L-037, at

* 4 (noting that defendant was never informed about the animal’s malnourished



                                      - 26 -
Case No. 16-09-01


state). At a minimum, Ham acted recklessly when she failed to ensure that the dog

was being properly fed by her children—a fact that she was aware of given the

dog’s condition. Nor did Ham ensure that the dog’s food was not being eaten by

other wild animals, such as raccoons, even though one was found rotting in the

dog’s pen. (Id. at 32). Ham testified that often times she saw the dog on her way

into the house after work when it was dark outside and from a distance of 20 to 30

feet away. (Id. at 90-91). Finally, Ham’s bald assertion that the dog’s emaciated

condition was a result of contaminated food he ate in 2005 is undermined by the

fact that the dog gained over 20 pounds while in the humane society’s care. (Id.

49-50); (State’s Ex. C). Under these circumstances, we cannot conclude that the

trial court’s finding of guilt was against the manifest weight of the evidence on

this basis either.

       {¶43} Based upon all the evidence presented, Ham’s conviction for

endangering animals under R.C. 959.13(A)(1) was not against the manifest weight

of the evidence. Since any one of the grounds stated in R.C. 959.13(A)(1) is

sufficient to sustain a conviction for animal cruelty, and Ham’s conviction based

upon her failure to provide a sufficient quantity of good, wholesome food and

water was not against the manifest weight of the evidence,       the trial court’s

discussion of Ham’s failure to seek veterinary care is superfluous and we need not

consider it. Further, since we have found that Ham’s conviction was not against



                                      - 27 -
Case No. 16-09-01


the manifest weight of the evidence, we also find that Ham’s conviction was

supported by sufficient evidence. State v. Sidders, 3d Dist. No. 14-08-24, 2009-

Ohio-49, ¶42, citing State v. Rutledge (June 1, 2001), 2nd Dist. No. 18462 at *3;

State v. Mitchell, 5th Dist. No. CT2006-0090, 2007-Ohio-5519, ¶66; State v.

Bergsmark, 6th Dist. No. L-03-1137, 2004-Ohio-5753, ¶8; State v. Stubbs, 8th

Dist. No. 89883, 2008-Ohio-5983, ¶7; State v. Adams, 9th Dist. No. 07-CA-0086,

2008-Ohio-4939, ¶66; State v. Jones, 10th Dist. No. 08AP-260, 2008-Ohio-6963,

¶14; State v. McCrory, 11th Dist. No.2006-P-0017, 2006-Ohio-6348, ¶40; State v.

Wilkins, 12th Dist. No. CA2007-03-007, 2008-Ohio-2739, ¶22.

      {¶44} Ham’s first assignment of error is, therefore, overruled.

                      ASSIGNMENT OF ERROR NO. II

      IN PLAIN ERROR, THE TRIAL COURT EXCEEDED ITS
      AUTHORITY IN ORDERING RESTITUTION TO THE
      WYANDOT COUNTY HUMANE SOCIETY FOR EXPENSES
      OTHER THAN PROPERTY DAMAGE IN VIOLATION OF
      ORC §2929.21(E).

      {¶45} In her second assignment of error, Ham argues that the trial court

exceeded its authority by ordering her to pay restitution to the Wyandot County

Humane Society for costs it incurred for treating her dog.       Ham argues that

expenses related to the dog’s care are not “property damage” within the meaning

of R.C. 2929.21(E), citing several cases in support of that interpretation. In her

reply brief, however, Ham acknowledges that R.C. 2929.21 was repealed by H.B.



                                      - 28 -
Case No. 16-09-01


490, eff. 1-1-04, and that her citation thereto was in error. In her reply brief, Ham

now argues that the trial court’s restitution order under R.C. 2929.28(A)(1), the

new financial penalties section, was in error based upon State v. Angus, 10th Dist.

No. 05AP-1054, 2006-Ohio-4455. We, therefore, will address Ham’s arguments

as they relate to the new statute and corresponding case law cited in her reply

brief, not the former statute and case law cited in her original brief. We agree with

Ham that the trial court erred in ordering her to pay restitution to the humane

society.

       {¶46} We recognize plain error “‘with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.’”

State v. Landrum (1990), 53 Ohio St.3d 107, 110, 559 N.E.2d 710, quoting State v.

Long (1978) 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus.

For plain error to apply, the trial court must have deviated from a legal rule, the

error must have been an obvious defect in the proceeding, and the error must have

affected a substantial right. State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759

N.E.2d 1240. Under the plain error standard, the appellant must demonstrate that

the outcome of his trial would clearly have been different but for the trial court’s

errors. State v. Waddell (1996), 75 Ohio St.3d 163, 166, 661 N.E.2d 1043, citing

State v. Moreland (1990), 50 Ohio St.3d 58, 552 N.E.2d 894.




                                       - 29 -
Case No. 16-09-01


       {¶47} R.C. 2929.28 governs the financial sanctions, including restitution,

which courts may impose upon misdemeanor offenders.           R.C. 2929.28(A)(1)

provides, in pertinent part:

       Unless the misdemeanor offense is a minor misdemeanor or
       could be disposed of by the traffic violations bureau serving the
       court under Traffic Rule 13, 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. * * * If the court
       requires restitution, the court shall order that the restitution be
       made to the victim in open court or to the adult probation
       department that serves the jurisdiction or the clerk of the court
       on behalf of the victim.

       If the court imposes restitution, the court shall determine the
       amount of restitution to be paid by the offender. If the court
       imposes restitution, the court may base the amount of restitution
       it orders on an amount recommended by the victim, the offender,
       a presentence investigation report, estimates or receipts
       indicating the cost of repairing or replacing property, and other
       information, provided that the amount the court orders as
       restitution shall not exceed the amount of the economic loss
       suffered by the victim as a direct and proximate result of the
       commission of the offense. If the court decides to impose
       restitution, the court shall hold an evidentiary hearing on
       restitution if the offender, victim, or survivor disputes the
       amount of restitution. If the court holds an evidentiary hearing,
       at the hearing the victim or survivor has the burden to prove by a
       preponderance of the evidence the amount of restitution sought
       from the offender.

       {¶48} (Emphasis added). Although this Court has not interpreted R.C.

2929.28(A)(1), we have interpreted R.C. 2929.18(A)(1), which contains very

similar language, and determined that the General Assembly intended restitution

be available only to actual victims of the offense. State v. Toler, 174 Ohio App.3d


                                      - 30 -
Case No. 16-09-01


335, 2007-Ohio-6967, 882 N.E.2d 28, ¶12, citing State v. Christy, 3d Dist. No. 16-

04-04, 2004-Ohio-6963, ¶16, citing State v. Samuels, 4th Dist. No. 03CA8, 2003-

Ohio-6106, ¶5.      We have also found that, except under certain specified

circumstances, governmental entities are not ‘victims’ entitled to restitution for

their expenditure of public funds for fighting crime. Toler, 2007-Ohio-6967, at

¶11, citing State v. Pietrangelo, 11th Dist. No. 2003-L-25, 2005-Ohio-1686, ¶¶15-

17. Our reasoning in Toler and Christy, supra, is persuasive here because R.C.

2929.28(A)(1)’s plain language also allows “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.” (Emphasis added). Therefore, we hold that trial

courts have authority to order restitution under R.C. 2929.28(A)(1) only to the

actual victim(s) of the offense or survivor(s) of the victim in accord with the

statute’s plain language.

       {¶49} The trial court sub judice ordered that Ham pay $3,126.72 in

restitution. (Dec. 17, 2008 JE, Doc. No. 54). This amount was exactly equal to the

costs incurred by the Wyandot County Humane Society for the care of Ham’s dog,

including: food and board, transportation, veterinary evaluations, vaccinations, and

other administered medications. (Oct. 21, 2008 Tr. at 112); (State’s Ex. D).

Pursuant to R.C. 2929.28(A)(1), the trial court ordered that restitution be paid to




                                       - 31 -
Case No. 16-09-01


the probation department on behalf of the humane society. (See Dec. 17, 2008 JE,

Doc. No 54); (Oct. 21, 2008 Tr. at 117-18).

      {¶50} We, however, find that the trial court lacked authority under R.C.

2929.28 (A)(1) to order restitution to the humane society. The Wyandot County

Humane Society was not a victim of Ham’s crime or a survivor of the victim as

those terms are used in R.C. 2929.28(A)(1).        Furthermore, this Court has

previously determined that county humane societies were established primarily for

law enforcement—traditionally a governmental function—and therefore, should

be considered political subdivisions for purposes of immunity under R.C. Chapter

2744. Studer v. Seneca County Humane Society (May 4, 2000), 3d Dist. No. 13-

99-59, at *3. Accordingly, as governmental entities, humane societies are not

‘victims’ under the statute, unless otherwise specifically provided. Toler, 2007-

Ohio-6967, at ¶11, citing Pietrangelo, 2005-Ohio-1686, at ¶¶15-17. Additionally,

the Court of Appeals for the Tenth Appellate District has found that R.C.

2929.28(A)(1) does not authorize restitution to a humane society for the cost of

care of animals seized under R.C. Chapter 959. State v. Angus, 2006-Ohio-4455, at

¶¶29-32. The Court in Angus premised its decision on the statute’s plain language,

and, for that reason, we find it persuasive here. Id. at ¶¶31-32. For all these

reasons, we find that the trial court erred in ordering restitution to the Wyandot




                                      - 32 -
Case No. 16-09-01


County Humane Society and vacate that portion of the trial court’s judgment entry

of sentence.

       {¶51} As a practical matter, although we have found no statutory authority

under R.C. 2929.28(A)(1) for a trial court to order restitution to a humane society

for costs it incurs for caring for animals seized under R.C. Chapter 959, R.C.

959.13(C) provides:

       All fines collected for violations of this section shall be paid to
       the society or association for the prevention of cruelty to
       animals, if there be such in the county, township, or municipal
       corporation where such violation occurred.

       {¶52} Thus, humane societies are not without any recourse for the costs

they incur. Nonetheless, because the trial court does not have authority to order

restitution to the humane society under R.C. 2929.28(A)(1), Ham’s second

assignment of error is sustained.

       {¶53} Having found no error prejudicial to the appellant herein as to

assignment of error one, we affirm the trial court’s judgment of conviction.

Having found error prejudicial to the appellant as to assignment of error two, we

vacate the trial court’s restitution order.

                                                   Judgment Affirmed in Part and
                                                        Sentence Vacated in Part

WILLAMOWSKI and ROGERS, J.J., concur.
/jlr




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