State v. Spurgeon , 2019 Ohio 2951 ( 2019 )

[Cite as State v. Spurgeon, 2019-Ohio-2951.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
FULTON COUNTY
State of Ohio Court of Appeals No. F-18-010
Appellee Trial Court No. CRB 1800021
v.
Tiffany M. Spurgeon DECISION AND JUDGMENT
Appellant Decided: July 19, 2019
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Scott A. Haselman, Fulton County Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
*****
ZMUDA, J.
{¶ 1} Appellant, Tiffany Spurgeon, appeals the judgment of the Fulton County
Court, Eastern District, denying her motion to dismiss as a sanction for prosecutor’s
alleged failure to disclose material evidence in advance of trial and sentencing her to
seven days of confinement followed by five years of community control after a jury
found her guilty of cruelty to animals. Finding no error, we affirm.
I. Facts and Procedural Background
{¶ 2} On January 10, 2018, appellant was indicted on one count of failing to
register a dog in violation of R.C. 955.21, a minor misdemeanor; failing to require a dog
to wear its tag in violation of R.C. 955.10, a minor misdemeanor; and cruelty to animals
in violation of R.C. 959.13, a misdemeanor of the second degree.1 Immediately
preceding the July 13, 2018 trial on these charges, appellant made an oral motion for
dismissal of all charges based on the prosecutor’s failure to disclose allegations of cruelty
to animals against the Fulton County Dog Warden in violation of Crim.R. 16 and Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Following a brief
argument, the trial court denied appellant’s motion and the matter proceeded to trial.
Therein, the following facts were established.
{¶ 3} On December 7, 2017, appellant contacted a local animal clinic’s emergency
phone line to inquire about treatment for her dog’s leg injury. After being advised on
first aid treatment, appellant declined emergency services and brought the dog, a boxer,
to the clinic the following morning. There, the veterinarian noted the dog’s leg wound
and also that it was generally shorter and smaller than comparable dogs of her breed. The
veterinarian performed diagnostic imaging tests of the dog’s leg to rule out broken bones
and provided it with antibiotics to treat the wound. She also noted the dog weighed only
thirteen pounds at the time of the exam. She anticipated a boxer aged approximately one
1
The charges for failure to register the dog and failure to require the dog to wear its
collar and their resolution are not the subject of this appeal.
2.
year should weigh between fifty and sixty pounds. Appellant testified the dog had been
losing weight since approximately Thanksgiving 2017, but she had attempted
conservative treatment recommended by a friend rather than seeking professional
assistance for that issue.
{¶ 4} Through the initial treatment, the veterinarian attempted to identify a cause
of the dog’s low weight. This included multiple diagnostic tests of the dog’s blood as
well as organ function. Following review of the test results, the veterinarian determined
the dog’s low weight and emaciated state was due to malnourishment from lack of proper
feeding. Appellant testified that she fed the dog on a regular schedule and only declined
to seek professional treatment for the weight loss issue due to the expense. That
notwithstanding, the veterinarian contacted the Fulton County Dog Warden to advise him
of her findings. The warden issued a criminal complaint against appellant containing the
present charges.
{¶ 5} Since the initial treatment and through trial, the dog remained in the care of
the clinic. During that time, with regular feeding, it has gained weight and its leg injury
has healed. Appellant continued to contact the clinic for updates on the dog’s condition
throughout that time. The veterinarian now considers the dog healthy.
{¶ 6} For her defense, appellant offered testimony of one witness, her daughter,
and also testified on her own behalf. Appellant’s daughter testified the dog was provided
with adequate water and served food three times a day. Appellant likewise testified the
dog was fed three times a day. She also testified the dog weighed between 22 and 25
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pounds at Thanksgiving 2017, and had always been small in stature. The veterinarian
testified that based on her examination and the test results she did not believe the dog had
been fed on the schedule suggested by appellant. At the conclusion of the trial, the jury
found appellant guilty of cruelty to animals in violation of R.C. 959.13 and the matter
was continued for sentencing.
{¶ 7} At sentencing, the trial court ordered appellant to serve a 7-day jail term,
reserving a 90-day jail term, plus 5 years of community control. It is from this judgment
that appellant has filed a timely notice of appeal asserting the following assignments of
error:
Assignment of Error No. 1: The trial court abused its discretion in
denying Appellant’s Motion to Dismiss for the State’s failure to produce
discovery regarding one of the State’s witnesses.
Assignment of Error No. 2: Appellant’s conviction is against the
manifest weight of the evidence, and Appellant is entitled to a new trial.
II. Law and Analysis
{¶ 8} In her first assignment of error, appellant argues that the trial court erred in
denying her motion to dismiss. Appellant argues dismissal was a proper sanction under
Crim.R.16 for the state’s alleged failure to disclose material evidence favorable to her
defense in violation of her constitutional rights identified in Brady v. Maryland. We
disagree.
4.
{¶ 9} In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),
the U.S. Supreme Court stated “the suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material to either
guilt or punishment, irrespective of the good faith or bad faith of the of the prosecution.”
Evidence subject to disclosure under Brady is that which is both favorable and material to
the defense. State v. Davis, 116 Ohio St. 3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 338. For
purposes of the disclosure requirement, evidence is only considered material “if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different. A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome. This standard of materiality applies
regardless of whether the evidence is specifically, generally or not at all requested by the
defense.” State v. Johnston, 39 Ohio St. 3d 48, 529 N.E.2d 898 (1988), citing United
States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 481 (1985). “The mere
possibility that an item of undisclosed information might have helped the defense, or
might have affected the outcome of the trial, does not establish ‘materiality’ in the
constitutional sense.” State v. Jackson, 57 Ohio St. 3d 29, 33, 565 N.E.2d 549 (1991),
citing United States v. Agurs, 427 U.S. 97, 109-110, 96 S. Ct. 2392, 49 L. Ed. 2d 342
(1976). Under these guidelines, we shall first address whether the accusations against the
warden were material to appellant’s defense and therefore subject to disclosure by the
state.
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{¶ 10} Appellant argues the state improperly withheld material evidence that the
warden charging her with cruelty to animals was, himself, previously accused of cruelty
to animals. Appellant argues these allegations are material to her defense as they impact
the warden’s credibility as a witness. She further argues the state’s failure to disclose this
information deprived her of a fair trial.
{¶ 11} The record with regard to these allegations consists of appellant’s pretrial
oral motion to dismiss and the state’s response. In support of her motion, appellant
argued she received information regarding the allegations against the warden through a
public records request to the Ohio Department of Agriculture which were not disclosed
by the state prior to her trial. The state acknowledged having been recently made aware
of an investigation into the party making the prior allegations against the warden but
noted the actual claims of animal abuse were referred to the Ohio Attorney General to
avoid a conflict in investigating a fellow county official. The state further noted that the
Ohio Attorney General’s investigation resulted in no charges being filed against the
warden and that the allegations were more than three years old at the time of appellant’s
trial. Appellant countered that even an allegation of animal cruelty was sufficient to
warrant disclosure as the information went to the warden’s credibility as one of the state’s
two witnesses. The trial court denied appellant’s motion to dismiss based on the
representations of the parties and the matter proceeded to trial.
{¶ 12} Our review of the record reveals nothing to support appellant’s argument
that the allegations against the warden were material and therefore subject to disclosure
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by the state. Allegations of animal cruelty against the warden from three years prior to
appellant’s trial do not attach to his credibility as a witness. “Under Evid.R. 608(B), the
ability of trial counsel to discredit a witness through cross-examination concerning
particular conduct of a witness is not absolute; it is limited in its exercise to the court’s
sound discretion in determining if the inquiry will lead to particular instances of conduct
which are clearly probative of untruthfulness.” State v. Whites Landing Fisheries, LLC,
2017-Ohio-7537, 96 N.E.3d 1236, ¶ 48 (6th Dist.), citing State v. Williams, 1 Ohio
App.3d 156, 158, 440 N.E.2d 65 (10th Dist.1981). In White Landing Fisheries, we
affirmed the trial court’s order barring attempted impeachment of the state’s witness
using allegations of past criminal behavior since those allegations, for which no criminal
charges were filed, were not clearly probative of the witnesses’ untruthfulness. Id. at
¶ 52-53. We reach the same conclusion here and find no connection between the warden
having been merely accused of animal cruelty and his ability to testify truthfully.
Additionally, at trial the warden testified that the basis for the charges against appellant
was the information he received from the veterinarian. Therefore, any issue regarding his
credibility is unlikely to have resulted in a different outcome as the factual basis for the
verdict was established by the veterinarian.
{¶ 13} Accordingly, we find the allegations against the warden were not subject to
disclosure by the state as they do not constitute favorable material evidence as described
in Brady. There is no reasonable probability that had a jury heard the warden was
previously accused of animal cruelty it would have reached a different result. This lack
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of probability renders the allegations against the dog warden immaterial to appellant’s
defense and her assignment of error fails.
{¶ 14} Appellant’s assignment of error fails for an additional reason. Indeed, her
own motion to dismiss reveals her inability to succeed in supporting a Brady violation.
In her motion to dismiss, she acknowledged her receipt of the allegations prior to trial.
Notably, appellant does not argue that additional information was suppressed by the
prosecution, but merely that the information in her possession at trial was not disclosed in
response to her discovery request. As a result, the information which she complains was
not disclosed was in fact available for her use when cross-examining the warden. We
note that in addressing an alleged Brady violation, “[w]here *** the evidence is revealed
in time for the defense to use it effectively at or before trial, no constitutional violation
has occurred.” State v. Barzacchini, 96 Ohio App. 3d 440, 454, 645 N.E.2d 137 (6th
Dist.1994), citing United States v. Presser, 844 F.2d 1275 (6th Cir.1988).
{¶ 15} Here, appellant was aware of the allegations against the warden on the day
of trial. She intended to use the animal cruelty allegations to impeach his credibility as a
witness. In denying her motion to dismiss, the trial court neither ruled on the
admissibility of the allegations nor limited appellant’s ability to use the allegations on
cross-examination.2 Therefore, she had all allegedly suppressed information in her
2
With the allegedly suppressed information available for her use at trial, it remains
unclear what, precisely, appellant argues constitutes reversible error in the trial court’s
ruling with regard to the allegations against the warden.
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possession at the time of trial and could have attempted to use it during cross-
examination of the warden. Nevertheless, appellant failed to question the warden
regarding the prior allegations at trial. Having this information available for effective use
at trial precludes the finding of a Brady violation.
{¶ 16} Since the allegedly suppressed evidence was not material to appellant’s
defense and therefore not subject to disclosure, and since it was available for her use at
the time of trial, we find there was no violation of Crim.R. 16 or Brady and appellant’s
first assignment of error is found not well-taken.
{¶ 17} In her second assignment of error, appellant argues that the jury’s verdict
was against the manifest weight of the evidence and she is entitled to a new trial as a
result. This assignment of error also fails.
{¶ 18} A criminal conviction may be overturned on appeal if it is determined to be
against the manifest weight of the evidence. State v. Butler, 6th Dist. Lucas No. L-08-1390,
2010-Ohio-178. We previously noted:
[w]hen examining whether a conviction was contrary to the manifest
weight of the evidence, the appellate court serves as a “thirteenth juror” to
conclude whether the trial court lost its way so significantly as to result in a
manifest miscarriage of justice, necessitating that the conviction be
overturned. In reaching this determination, we grant substantial deference
to the trial court's decision given its unique opportunity to consider the
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evidence presented and to closely observe and assess the demeanor and
credibility of the witnesses.
Id. at ¶ 11 (internal citations omitted). Under these guidelines, we find no error in
appellant’s conviction.
{¶ 19} The record reflects expert testimony from the treating veterinarian
regarding the condition of the dog upon its first visit to the clinic. She testified that the
dog was “extremely emaciated” at its first visit and was chewing at a wound on its leg.
She evaluated the dog’s “body condition score” as a one out of nine. The only possible
lower score is for a deceased animal. After reviewing imaging studies of the dog’s leg to
rule out any bone fractures, she treated the wound with oral and injectable antibiotics
along with application of an antibiotic ointment. She then began performing various
blood tests to determine why the dog was underweight. These results indicated that the
dog was not receiving enough nutrients.
{¶ 20} To determine whether the lack of nutrients was a result of a lack of feeding
or a medical condition, the veterinarian began feeding the dog on a regular schedule. It
ate each of its meals “ravenously.” Imaging studies revealed no obstruction or foreign
body preventing digestion and conversations with appellant indicated no issues with
vomiting or diarrhea as an explanation for the weight loss. She performed subsequent
testing for other digestive issues which could have also accounted for the weight loss.
These tests also came back normal. After eliminating all potential medical causes of the
dog’s weight loss, and through her own observations of the dog’s physical condition, the
10.
veterinarian determined to a reasonable degree of medical certainty that the dog’s weight
loss was due to lack of food. Since being treated by the veterinarian and remaining in her
care, the dog has continued to gain weight and appears healthy.
{¶ 21} The warden’s testimony reflects similar observations of the dog’s physical
condition as being “very thin.” After being contacted by the veterinarian, he spoke with
appellant about the dog’s condition. Ultimately, based on the veterinarian’s findings, he
filed the criminal complaint on which appellant was convicted.
{¶ 22} After review of the record, including the physical evidence and witness
testimony, we find no evidence to conclude that the trial court lost its way so as to cause
a manifest miscarriage of justice. The veterinarian testified regarding her elimination of
other causes of the weight loss before determining a lack of food as the cause. With this,
the jury’s conclusion is not against the manifest weight of the evidence and appellant’s
second assignment of error is found not well-taken.
III. Conclusion
{¶ 23} In light of the foregoing, the judgment of the Fulton County Court, Eastern
District, is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
App.R. 24.
Judgment affirmed.
11.
State v. Spurgeon
C.A. No. F-18-010
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Christine E. Mayle, P.J.
_______________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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