State v. Hartman , 2012 Ohio 4694 ( 2012 )

[Cite as State v. Hartman, 2012-Ohio-4694.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26250
Appellee
APPEAL FROM JUDGMENT
v. ENTERED IN THE
BARBERTON MUNICIPAL COURT
JUDY ANN HARTMAN COUNTY OF SUMMIT, OHIO
CASE Nos. 11 CRB 01141
Appellant 11 CRB 01159
11 CRB 02943 (A) & (B)
11 CRB 02944
DECISION AND JOURNAL ENTRY
Dated: October 10, 2012
BELFANCE, Judge.
{¶1} Defendant-Appellant Judy Ann Hartman appeals from the decisions of the
Barberton Municipal Court. For the reasons set forth below, we affirm.
I.
{¶2} On May 11, 2011, Summit County humane officers Tim Harlan and Shannon
O’Herron received a call requesting them to check on the welfare of two dogs being housed in a
van located on a property on Jarvis Road. The caller was concerned because it was an
excessively hot day. When they arrived, the officers found no one at the house. However, they
heard multiple dogs barking inside and were overwhelmed by the stench of ammonia and animal
waste coming from inside the residence.
{¶3} The van had an electrical cord running into it from the house, the front windows
were down, and the side windows were open a few inches. Officers tried to reach the owner via
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a number on the side of the van but were unable to reach anyone. The officers heard noises
coming from inside the van and opted to open it. The van contained two dogs which were
heavily panting. Officer Harlan estimated that the temperature of the van was approximately
five to ten degrees warmer than the outside air, despite the small fan that was running inside the
van. After the officers had already removed the animals from the property, Ms. Hartman
returned the officers’ phone calls. The officers notified Ms. Hartman that they would have to
come back to the property to see the rest of the animals.
{¶4} Officers returned to the property the following day. At first, they thought that no
one was home again. Officers then noticed a black truck at the back of the property. Officers
found Ms. Hartman in the truck; Officer Harlan felt she was either in a very deep sleep or was
deceased. After Officer Harlan tried unsuccessfully to awake her, he called EMS. When EMS
arrived, EMS personnel were not going to transport Ms. Hartman because they did not think
anything was wrong and thought she was in a deep sleep; however, after an apparent suicide note
was discovered, EMS thought it best to take her to the hospital. Prior to placing Ms. Hartman on
a stretcher, she woke up, was able to stand, and was able to have a conversation with sheriff
deputies and Officer O’Herron while she was in back of the ambulance on the stretcher. Ms.
Hartman advised Officer O’Herron that she could go into the house. Ms. Hartman indicated that
the front door was unlocked and that there were keys in the vehicle in case officers needed to get
into the tractor-trailer on the property which contained dog food. Ms. Hartman requested that
officers go in and check on the animals. The sheriff deputy specifically asked Ms. Hartman if
the officers could go in and she said yes.
{¶5} Officers went into the house and confronted what Officer Harlan described as the
worst smell of ammonia and waste that he had ever smelled in his 17 years of working as a
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humane officer. Officers discovered filthy cages containing various animals along with waste
covered floors. In addition, officers discovered several animals running loose in the house. The
smell from the house required officers to exit the residence at times to get fresh air. Officers
encountered 40 dogs, 24 cats, 25 birds, an iguana, two ferrets, and six mice on the property.
{¶6} Multiple complaints were filed against Ms. Hartman in four separate case
numbers. Some of the counts were subsequently amended. Case number 11 CRB 1141 was
dismissed after Ms. Hartman agreed to surrender her animals to the Humane Society of Greater
Akron. Case number 11 CRB 2943 contained two counts, count A alleged a violation of R.C.
959.131(C)(1) concerning 25 birds, one iguana, two ferrets, and six mice, while count B alleged
a violation of R.C. 959.131(C)(1) with respect to 24 cats. Case number 11 CRB 2944 alleged a
violation of R.C. 959.131(C)(1) with respect to the two dogs in the van. Case number 11 CRB
1159 alleged a violation of R.C. 959.131(C)(1) concerning 40 dogs.
{¶7} On December 7, 2011, Ms. Hartman filed a motion to suppress, asserting that the
warrantless search was conducted without valid consent and that there were no exigent
circumstances justifying the search of her home. Ultimately, the three remaining cases were
tried together to the court. Evidence concerning the motion to suppress was heard at the same
time.
{¶8} The trial court denied Ms. Hartman’s motion to suppress and found her guilty of
each of the four counts. Ms. Hartman’s sentence was stayed pending appeal. This Court’s
record was supplemented with a judgment entry reflecting the disposition of all of the counts.
{¶9} Ms. Hartman now appeals, raising two assignments of error for our review.
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II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING APPELLANT HARTMAN’S
MOTION TO SUP[P]RESS THE EVIDENCE OBTAINED FROM THE
WARRANTLESS SEARCH OF HER HOME ABSENT HER VOLUNTARY
CONSENT OR AN EXIGENT CIRCUMSTANCE IN VIOLATION OF HER
RIGHT TO BE FREE FROM UNREASONABLE SEARCH AND SEIZURE
UNDER THE FOURTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.
{¶10} Ms. Hartman asserts in her first assignment of error that the trial court erred in
denying her motion to suppress because she did not provide voluntary consent to search the
home and there were no exigent circumstances. We conclude that the trial court did not err in
concluding that Ms. Hartman had voluntarily consented to officers entering her home.
{¶11} The Supreme Court of Ohio has held that:
[a]ppellate review of a motion to suppress presents a mixed question of law and
fact. When considering a motion to suppress, the trial court assumes the role of
trier of fact and is therefore in the best position to resolve factual questions and
evaluate the credibility of witnesses. Consequently, an appellate court must
accept the trial court’s findings of fact if they are supported by competent,
credible evidence. Accepting these facts as true, the appellate court must then
independently determine, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard.
(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
{¶12} “When police conduct a warrantless search, the state bears the burden of
establishing the validity of the search. Searches and seizures without a warrant are per se
unreasonable except in a few well-defined and carefully circumscribed instances.” (Citation
omitted.) State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 98. “It is equally well
established, however, that a search of property without a warrant or probable cause but with
proper consent having been voluntarily obtained does not violate the Fourth Amendment.” Id.“To rely on the consent exception of the warrant requirement, the state must show by clear and
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positive evidence that the consent was freely and voluntarily given.” (Citations omitted.) State
v. Posey, 40 Ohio St.3d 420, 427 (1988); see also State v. Hetrick, 9th Dist. No. 07CA009231,
2008-Ohio-1455, ¶ 23.
{¶13} “The question of whether consent to a search was voluntary or the product of
duress or coercion, express or implied, is a question of fact to be determined from the totality of
the circumstances.” Roberts at ¶ 99. “The standard for measuring the scope of consent under the
Fourth Amendment is objective reasonableness, i.e., what a typical reasonable person would
have understood by the exchange between the officer and the suspect.” Id.{¶14} In the instant matter, the trial court concluded that Ms. Hartman knowingly and
voluntarily consented to the humane officers entering her home and that the evidence discovered
was in plain view. We note that Ms. Hartman does not challenge the scope of the search or the
trial court’s analysis concluding that the evidence was in plain view upon entry into the home.
See Hetrick at ¶ 23 (“Consent to enter premises does not also extend to consent to search the
premises.”). Instead, Ms. Hartman argues that, under the circumstances, her consent allowing
the officers to enter the home to care for her animals was not voluntary.
{¶15} Officer Harlan testified that, on the date officers returned to the property, they
found Ms. Hartman unconscious in a truck. Officer Harlan indicated that he was not sure if she
was in a very deep sleep or deceased. Thus, EMS was called. Upon arriving, Officer Harlan
testified that EMS was not going to transport Ms. Hartman to the hospital because it believed she
was just in a deep sleep. However, once a possible suicide note was discovered, EMS thought it
best to transport her.
{¶16} Prior to transport, Ms. Hartman awoke and was able to stand. Once in the
ambulance, she was able to have a conversation with Officer O’Herron. Officer O’Herron
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testified that Ms. Hartman was speaking with her and a sheriff deputy and advised them that
officers could go in the house and that Ms. Hartman wanted them to go in and check on the
animals. Ms. Hartman further advised officers that the front door was unlocked and explained
where a key to the tractor trailer containing dog food was located. Officer O’Herron asserted
that Ms. Hartman appeared competent, was fully conscious once she was inside the ambulance,
and was inside the ambulance for approximately 20-25 minutes before it left. And while Ms.
Hartman was provided with an oxygen mask while in the ambulance, she kept taking it on and
off to talk with officers.
{¶17} The trial court’s finding that Ms. Hartman’s consent for officers to enter the home
was voluntary is supported by competent, credible evidence. See Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, at ¶ 8; Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, at ¶ 99. At the time Ms.
Hartman gave consent, there was evidence that Ms. Hartman was fully conscious and appeared
competent. Moreover, Ms. Hartman was aware of the fact that she had animals in the house that
needed care and had the mental clarity to inform officers of where the key to the trailer was
located so that they might feed the animals. Thus, in light of the argument made on appeal, we
cannot conclude the trial court erred in denying Ms. Hartman’s motion to suppress. We overrule
Ms. Hartman’s first assignment of error.
ASSIGNMENT OF ERROR II
AS TO COUNT TWO (11 CRB 02943(A)), THE TRIAL COURT ERRED IN
CONVICTING APPELLANT HARTMAN OF NEGLIGENTLY
COMMITTING AN ACT OF CRUELTY AGAINST A COMPANION ANIMAL
AS THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT
THAT APPELLANT HARTMAN COMMITTED THE ACT AGAINST A
COMPANION ANIMAL PER R.C. 959.131(A)(1) AND R.C. 1531.01(X),
DEPRIVING APPELLANT HARTMAN OF HER RIGHTS UNDER SECTION
16, ARTICLE I OF THE OHIO CONSTITUTION AND THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.
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{¶18} Ms. Hartman asserts in her second assignment of error that her conviction for
cruelty against companion animals in case number 11 CRB 2943(A) with respect to the 25 birds,
one iguana, two ferrets, and six mice is based upon insufficient evidence because the State failed
to prove beyond a reasonable doubt that any of the animals were companion animals. The count
of the complaint at issue alleges that Ms. Hartman committed an act of cruelty against one or
more of the listed animals. Thus, if this Court concludes that there was sufficient evidence that
one of the animals was a companion animal then Ms. Hartman’s conviction must be affirmed.
Ms. Hartman does not assert that the other elements of the crime were not established beyond a
reasonable doubt. Because we conclude that at least one of the birds was a companion animal as
defined by the statute, we conclude that there was sufficient evidence whereby the trier of fact
could find Ms. Hartman guilty of the charge.
{¶19} In determining whether the evidence presented was sufficient to sustain a
conviction, this Court reviews the evidence in a light most favorable to the prosecution. State v.
Jenks, 61 Ohio St.3d 259, 274 (1991). Furthermore:
[a]n 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. The 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. at paragraph two of the syllabus.
{¶20} Ms. Hartman was found guilty of violating R.C. 959.131(C)(1). That section
provides that “[n]o person who confines or who is the custodian or caretaker of a companion
animal shall negligently * * * [t]orture, torment, needlessly mutilate or maim, cruelly beat,
poison, needlessly kill, or commit an act of cruelty against the companion animal[.]” R.C.
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959.131(C)(1). On appeal, Ms. Hartman asserts that the State failed to establish that any of the
animals identified in this count of the complaint were companion animals as that term has been
defined.
{¶21} “‘Companion animal’ means any animal that is kept inside a residential dwelling
and any dog or cat regardless of where it is kept. ‘Companion animal’ does not include livestock
or any wild animal.” R.C. 959.131(A)(1). Here, Ms. Hartman does not dispute that there was
evidence that the birds at issue were kept inside a residential dwelling. Instead, she asserts that
the State did not establish that the birds were not wild animals.
{¶22} “‘Wild animal’ has the same meaning as in section 1531.01 of the Revised Code.”
R.C. 959.131(A)(5). R.C. 1531.01(X) provides that “‘[w]ild animals’ includes mollusks,
crustaceans, aquatic insects, fish, reptiles, amphibians, wild birds, wild quadrupeds, and all other
wild mammals, but does not include domestic deer.” “‘Wild birds’ includes game birds and
nongame birds.” R.C. 1531.01(Q). Game birds are further defined as including
mourning doves, ringneck pheasants, bobwhite quail, ruffed grouse, sharp-tailed
grouse, pinnated grouse, wild turkey, Hungarian partridge, Chukar partridge,
woodcocks, black-breasted plover, golden plover, Wilson’s snipe or jacksnipe,
greater and lesser yellowlegs, rail, coots, gallinules, duck, geese, brant, and crows.
R.C. 1531.01(S). Whereas nongame birds are defined as including “all other wild birds not
included and defined as game birds or migratory game birds.” R.C. 1531.01(T). Migratory
game birds are defined as including “waterfowl (Anatidae); doves (Columbidae); cranes
(Gruidae); cormorants (Phalacrocoracidea); rails, coots, and gallinules (Rallidae); and woodcock
and snipe (Scolopacidae).” R.C. 1531.01(AAA).
{¶23} While not all of the birds listed in the complaint were discussed, some of them
were. Officer Harlan discussed many of the animals he found upon entering the residence.
Specifically he testified that the birds found in the house in the cages included cockatiels,
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macaws, parrots, parakeets, and cockatoos. In addition, Officer Harlan testified concerning
several exhibits which included pictures of the birds in cages. The exhibits were admitted, and,
thus, the trial court was able to observe the birds that were discussed and the conditions in which
they were living.
{¶24} In light of the characterization of the birds as parrots, parakeets, macaws,
cockatiels, and cockatoos, it is clear that the birds are not contemplated as being “game birds” or
“migratory game birds” in light of the definition of those terms. See R.C. 1531.01(S),(AAA).
Thus, the question remains whether the birds are nongame birds and, thus, wild birds. See R.C.
1531.01(Q), (T). As noted above, nongame birds are defined as including “all other wild birds
not included and defined as game birds or migratory game birds.” R.C. 1531.01(T). Given that
the phrase, “all other wild birds[,] or “wild” itself, is not otherwise defined, we look to the
common meaning of the word “wild.” See State v. Willan, 9th Dist. No. 24894, 2011-Ohio-
6603, ¶ 23, citing R.C. 1.42. Wild means “living in a state of nature and not ordinarily tame or
domesticated[.]” Merriam-Webster’s Collegiate Dictionary 1432 (11th Ed.2005). The evidence
presented supports the reasonable inference that the birds at issue were domesticated and, thus,
not wild. The birds listed by Officer Harlan are birds that would be familiar to the average
person. It is within the common knowledge of the average person that birds such as parrots and
parakeets are often kept in cages as pets. See Newman v. Cleveland Museum of Natural History,
143 Ohio St. 369, 378 (1944) (observing that fact that an elephant is a wild animal is a matter of
common knowledge). Further, there was evidence that these particular birds discussed by
Officer Harlan were kept inside a residence in cages alongside other companion animals, such as
dogs and cats. See R.C. 959.131(A)(1). The trier of fact was able to view photographs of the
birds and cages and the surroundings. Viewing the totality of the evidence in a light most
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favorable to the State, we conclude there was evidence whereby a trier of fact could conclude
beyond a reasonable doubt that at least one of the birds discussed by Officer Harlan was a
companion animal as that term is defined by R.C. 959.131(A)(1). Accordingly, based on Ms.
Hartman’s limited argument on appeal, the conviction she challenges is not based upon
insufficient evidence. Ms. Hartman’s second assignment of error is overruled.
III.
{¶25} In light of the foregoing, we affirm the judgment of the Barberton Municipal
Court.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Barberton
Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
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CARR, P. J.
DICKINSON, J.
CONCUR.
APPEARANCES:
J. DEAN CARRO, Appellate Review Office, School of Law, The University of Akron, for
Appellant.
J. JEFFERY HOLLAND, Special Prosecuting Attorney, for Appellee.