State v. Hardy , 97 N.E.3d 838 ( 2017 )

[Cite as State v. Hardy, 2017-Ohio-7635.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27158
:
v. : T.C. NO. 15-CR-1185
:
KIMIKO HARDY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the ___15th ___ day of _____September_____, 2017.
...........
HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 N. Pioneer Blvd., Springboro,
Ohio 45066
Attorney for Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} Defendant-appellant Kimiko Hardy appeals her conviction and sentence for
two counts of involuntary manslaughter (misdemeanor/violation of Dayton City Ordinance
91.50(A)/91.99 & R.C. 955.22(C)(2)/R.C. 955.99(E)(1)), in violation of R.C. 2903.04(B),
both felonies of the third degree (Counts I and II); one count of failure to confine a vicious
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dog (dog kills person), in violation of R.C. 955.22(C)(2) and R.C. 955.99(H)(1)(a), a felony
of the fourth degree (Count III); one count of involuntary manslaughter (felony), in violation
of R.C. 2903.04(A), a felony of the first degree (Count IV); one count of endangering
children (parent-serious harm), in violation of R.C. 2919.22(A), a felony of the third degree
(Count V); and one count of involuntary manslaughter (felony child endangering), in
violation of R.C. 2903.04(A), a felony of the first degree (Count VI). Upon election by the
State, the trial court merged Counts I through V with Count VI, involuntary manslaughter
(felony child endangering), in violation of R.C. 2903.04(A), and sentenced Kimiko to three
years in prison. Hardy filed a timely notice of appeal with this Court on June 24, 2016.
{¶ 2} The incident which forms the basis for the instant appeal occurred on July
20, 2014, when Kimiko was babysitting her seven-month old grandson, J.Q., at the
residence that she shared with her husband, Kano Hardy. J.Q.’s mother, Kashyra
Hardy, had dropped the baby off the previous day, July 19, 2014, so that she could attend
a fashion show in Dayton, Ohio. It was the first time that J.Q. had spent the night at his
grandparents’ house. Kano is Kashyra’s biological father, and Kimiko is her stepmother.
Kashyra was born and raised in Dayton but was living in Indianapolis, Indiana, at the time
this incident occurred.
{¶ 3} On the morning of July 20, 2014, Kano left the residence early in order to
attend a motorcycle training class. Kimiko was left alone to watch J.Q. Also in the
residence was the Hardys’ dog, Busa, a four-year old Staffordshire terrier mix weighing
approximately seventy-five pounds. Staffordshire terriers are more commonly known as
“pit bulls.” Kimiko was listed as the owner of Busa, and the dog was licensed under
Kimiko’s name.
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{¶ 4} Normally, Busa was kept in a cage in the basement when people came over
to the Hardys’ residence. In fact, Kashyra testified that when she used to visit the Hardy
residence before J.Q. was born, Busa was kept locked in a cage in another room and
was never let out while she was there. Kashyra further testified that when her sister
brought her own baby to the residence, Busa was kept in his cage and never permitted
to be around the baby. The Hardys also put baby gates in the doorways in the interior
of the house to keep Busa confined to a specific area of the house and out of certain
rooms.
{¶ 5} After Kano left for his training class, Kimiko was watching J.Q. while he sat
in his car seat. At some point, Kimiko got up and walked down the hallway to use the
restroom, leaving J.Q. alone in the living room. Almost immediately after she had left the
living room, Kimiko heard Busa jump over the baby gate and enter the living room.
Kimiko ran back to the living room to grab J.Q. and keep Busa away from him. Kimiko
testified that as soon as she picked up J.Q., Busa attacked the child and began biting him
on his head. Kimiko got down on the floor to protect J.Q. and was bitten by Busa herself
several times. Eventually, Kimiko was able to get up and run out of the house with J.Q.
Kimiko took J.Q. to her neighbor’s house, and the neighbor called 911. However, J.Q.
had already succumbed to the wounds inflicted by Busa during the attack. Specifically,
J.Q. died of blunt force trauma as a result of Busa biting through his scalp and skull.
{¶ 6} Police and other emergency personnel were dispatched to Kimiko’s
neighbor’s residence located on Riverside Drive in Dayton, Ohio, at approximately 12:18
p.m. Upon arriving at the scene, police made contact with Kimiko who was sitting on her
neighbor’s porch holding J.Q.’s body. Kimiko was “sobbing hysterically,” wearing a robe
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stained in blood. After speaking to police for a short time, Kimiko signed a consent to
search form permitting them to enter her house and investigate the incident. Since Busa
was still located in the Hardy residence, the police contacted the Montgomery County
Animal Resource Center (ARC). An employee from the ARC arrived in a vehicle
specially designed to contain aggressive animals. The ARC employee, Christopher
Byrd, entered Kimiko’s residence, removed Busa, placed the dog in the back of his
vehicle, and took him to the ARC. We note that after being held at the ARC for a short
period of observation, Busa was euthanized on September 9, 2014.
{¶ 7} Later on July 20, 2014, Kimiko was taken to the Safety Building in downtown
Dayton and questioned by police. Before being questioned, Kimiko was provided with
her Miranda warnings. Kimiko signed the pre-interview waiver of rights form and agreed
to speak with the police. On July 21, 2014, Detectives William Geiger and Nathan Via
returned to Kimiko’s residence and asked her to sign another consent to search form.
After Kimiko signed the form, the detectives searched the residence a second time.
Once the search was completed, Det. Via asked Kimiko to come to the Safety Building a
second time for further questioning. Kimiko returned to police headquarters with the
detectives. Before questioning began, the detectives reviewed Kimiko’s Miranda rights
with her, and she waived said rights. After speaking with the detectives for
approximately one hour, Kimiko invoked her right to counsel. Questioning immediately
ceased, and Kimiko left the Safety Building with a relative.
{¶ 8} On July 22, 2015, Kimiko was charged by indictment with two counts of
involuntary manslaughter (misdemeanor); one count of failure to confine a vicious dog
(dog kills person); one count of involuntary manslaughter (felony); one count of
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endangering children (parent-serious harm); and one count of involuntary manslaughter
(felony child endangering). At her arraignment on August 6, 2015, Kimiko stood mute,
and the trial court entered a plea of not guilty on her behalf.
{¶ 9} On August 27, 2015, Kimiko filed a motion to suppress in which she sought
suppression of any statements she made to police when she was interviewed at the
Safety Building on July 20, 2014, and July 21, 2014. A hearing was held on said motion
on October 29, 2015, and November 20, 2015. On January 8, 2016, the trial court issued
a decision overruling Kimiko’s motion to suppress, finding that Kimiko was properly
advised of her Miranda rights and that she made a knowing, intelligent, and voluntary
waiver of her constitutional rights before speaking with the police.
{¶ 10} On April 15, 2016, Kimiko filed a motion in limine in order to preclude the
State from using evidence of a prior arrest for failure to control her dog pursuant to Evid.
R. 404(B) and from being able to refer to Busa at trial as a “dangerous” or “vicious” dog.
The trial court issued an order granting Kimiko’s motion regarding her prior arrest and
evidence of a new neighbor statement, but denied her motion in limine as it related to the
use of the words “dangerous” or “vicious” in order to describe Busa.
{¶ 11} On April 15, 2016, Kimiko filed a motion to dismiss Counts III and IV in the
indictment because Busa was never classified as a “vicious” dog under Ohio law prior to
the mauling of J.Q. The trial court overruled Kimiko’s motion to dismiss in an order
issued on April 22, 2016.
{¶ 12} On April 26, 2016, Kimiko filed a second motion to dismiss Counts I, II, IV,
V, and VI in the indictment. Kimiko alleged that she could only be charged in Count III
because the applicable specific statutory provision implicated in this count prevails over
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the other conflicting general statutes in the remaining counts. The trial court orally
overruled Kimiko’s second motion to dismiss just prior to trial on May 2, 2016.
{¶ 13} A week-long jury trial was held on May 2 through May 6, 2016. In addition
to evidence regarding Busa’s fatal attack on J.Q., evidence was also adduced with
respect to two prior incidents involving Busa that occurred before July of 2014.
Specifically, evidence was submitted that on April 26, 2014, Busa ran out from the side
of the Hardys’ residence and started barking and acting very aggressive towards the mail
carrier, Donnie Freels. During the encounter, Busa lunged at Freels, but he used his
mail bag to shield himself from the dog. Freels further testified that Busa bit his mail bag,
and he was able to run away. After the attack, Freels called his supervisor who, in turn,
called the ARC. As a result of Busa’s attack on Freels, Kimiko was required to attend an
animal awareness class at the Animal Resource Center. Freels testified that he refused
to deliver mail to the Hardy residence after Busa attacked him, and they were required to
get a P.O. Box in order to receive their mail. Officer Beverly White from the ARC visited
Kimiko and advised her to have Busa neutered in order to curb his negative behavior.
Based on Busa’s aggressive behavior towards Freels, Officer White further suggested
that she have the dog euthanized.
{¶ 14} The second incident occurred on June 3, 2014, when Isabelle Crickmore
was walking her dog, a beagle mix, on the sidewalk in front of the Hardy residence. Busa
ran down through the yard and attacked Crickmore’s dog. The attack resulted in three
lacerations and eleven staples to the beagle’s right rear leg. After the attack, Busa ran
back into the house, and Crickmore called the police. Crickmore testified that Kimiko
eventually came outside, and the two women exchanged information. Ultimately,
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Crickmore filed a complaint against Kimiko with the City of Dayton.
{¶ 15} As a result of the second attack, Officer Kandi Broadus from the ARC visited
Kimiko the same day. Officer Broadus advised Kimiko that she could be liable for the
injuries to Crickmore’s dog. Officer Broadus also asked Kimiko if she wanted to
surrender ownership of Busa to the ARC in order to avoid any further incidents. Kimiko
declined.
{¶ 16} A little over a month later on July 20, 2014, Busa fatally mauled J.Q. in the
Hardy residence. Kashyra testified that at the time of J.Q.’s death, she was unaware of
the separate incidents involving Busa attacking Freels as well as Crickmore’s dog.
Kashyra further testified that had she been aware of the two attacks, it would have
affected how safe that she thought her child was around Busa.
{¶ 17} At the conclusion of the trial, Kimiko was found guilty of all of the counts in
the indictment. Upon election by the State, the trial court merged Counts I through V
with Count VI, involuntary manslaughter (felony child endangering), and sentenced
Kimiko to three years in prison.
{¶ 18} It is from this judgment that Kimiko now appeals.
{¶ 19} Kimiko’s first assignment of error is as follows:
{¶ 20} “THE TRIAL COURT ERRED BY OVERRULING MS. HARDY’S MOTION
TO SUPPRESS STATEMENTS THAT WERE OBTAINED IN VIOLATION OF HER
CONSTITUTIONAL RIGHTS.”
{¶ 21} In her first assignment, Kimiko contends that the trial court erred when it
overruled her motion to suppress the statements she made when she was interviewed by
police detectives at the Safety Building on July 20, 2014, and July 21, 2014. Specifically,
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Kimiko argues that although she was advised of her Miranda rights prior to the beginning
of both interviews, she did not make a knowing, intelligent, and voluntary waiver of her
rights because of deceptive comments made by the detectives.
{¶ 22} In ruling on a motion to suppress, the trial court “assumes the role of the
trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate
the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d
498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-116, ¶
30. Accordingly, when we review suppression decisions, we must accept the trial court's
findings of fact if they are supported by competent, credible evidence. Retherford at 592,
639 N.E.2d 498. “Accepting those facts as true, we must independently determine as a
matter of law, without deference to the trial court's conclusion, whether they meet the
applicable legal standard.” Id.{¶ 23} “Under the Fifth Amendment to the United States Constitution, no person
shall be compelled to be a witness against himself. In order to ensure that this right is
protected, statements resulting from custodial interrogations are admissible only after a
showing that the procedural safeguards described in Miranda v. Arizona, 384 U.S. 436,
444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), have been followed.” State v. Western, 2015-
Ohio-627, 29 N.E.3d 245, ¶ 12 (2d Dist.). “[T]he State has the burden to show by a
preponderance of the evidence that a defendant's confession was voluntarily given.” Id. at
¶ 16.
{¶ 24} “Whether a statement was made voluntarily and whether an individual
knowingly, voluntarily, and intelligently waived his or her Miranda rights are distinct
issues.” State v. Lovato, 2d Dist. Montgomery No. 25683, 2014-Ohio-2311, ¶ 30.
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Generally, statements made to police after a knowing, intelligent, and voluntary waiver of
an individual's Miranda rights are presumed voluntary. Id. at ¶ 31. However,
“[t]he Miranda presumption applies to the conditions inherent in custodial interrogation
that compel the suspect to confess. It does not extend to any actual coercion police
might engage in, and the Due Process Clause continues to require an inquiry separate
from custody considerations and compliance with Miranda regarding whether a suspect's
will was overborne by the circumstances surrounding his confession.” State v.
Porter, 178 Ohio App.3d 304, 2008-Ohio-4627, 897 N.E.2d 1149, ¶ 14 (2d Dist.).
Therefore, “[r]egardless of whether Miranda warnings were required and given, a
defendant's statement may have been given involuntarily and thus be subject to
exclusion.” State v. Kelly, 2d Dist. Greene No. 2004–CA–20, 2005-Ohio-305, ¶ 11.
{¶ 25} When making a determination regarding whether a valid waiver has
occurred, we must “consider the totality of the circumstances, including the age, mentality,
and prior criminal experience of the accused; the length, intensity, and frequency of
interrogation; the existence of physical deprivation or mistreatment; and the existence of
threat or inducement.” State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976),
paragraph two of the syllabus, overruled on other grounds, 438 U.S. 911, 98 S.Ct. 3147,
57 L.Ed.2d 1155 (1978).
{¶ 26} For instance, “ ‘[p]romises of leniency by the police * * * are improper and
render an ensuing confession involuntary.’ ” State v. Holtvogt, 2d Dist. Montgomery No.
24748, 2012-Ohio-2233, ¶ 13, quoting State v. Hopfer, 112 Ohio App.3d 521, 547, 679
N.E.2d 321 (2d Dist.1996). Moreover, if “an incriminating statement is forced from the
mind of the suspect by the flattery of hope or by the torture of fear, [it] must be suppressed
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because it was involuntary.” Porter at ¶ 34.
{¶ 27} “ ‘The line to be drawn between permissible police conduct and conduct
deemed to induce or tend to induce an involuntary statement does not depend upon the
bare language of inducement but rather upon the nature of the benefit to be derived by a
defendant if he speaks the truth, as represented by the police. * * *” (Citations omitted).
State v. Jackson, 2d Dist. Greene No. 02CA0001, 2002-Ohio-4680, ¶ 28.
{¶ 28} “ ‘When the benefit pointed out by the police to a suspect is merely that
which flows naturally from a truthful and honest course of conduct, we can perceive
nothing improper in such police activity. On the other hand, if in addition to the foregoing
benefit, or in the place thereof, the defendant is given to understand that he might
reasonably expect benefits in the nature of more lenient treatment at the hands of the
police, prosecution or court in consideration of making a statement, even a truthful one,
such motivation is deemed to render the statement involuntary and inadmissible. The
offer or promise of such benefit need not be expressed, but may be implied from equivocal
language not otherwise made clear.’ ” (Citations omitted.) Id. at ¶ 29.
{¶ 29} Finally, we determined in Jackson “ ‘that false promises made by police to
a criminal suspect that he can obtain lenient treatment in exchange for waiving his Fifth
Amendment privilege so undermines the suspect's capacity for self-determination that his
election to waive the right and incriminate himself in criminal conduct is fatally impaired.
His resulting waiver and statement are thus involuntary for Fifth Amendment purposes. *
* * The simple result is that officers must avoid such promises, which are not proper tools
of investigation.’ ” (Citations omitted). Id. at ¶ 40.
First Interview – July 20, 2014
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{¶ 30} The record establishes that Kimiko’s first interview began at approximately
2:55 p.m. on July 20, 2014, and was conducted by Detectives Nathan Via and David
House. The interview took place at the Safety Building in Dayton, Ohio. Det. House
placed Kimiko in a room where the interview could be recorded. Kimiko was not
handcuffed, nor was she denied access to food, water, or use of a restroom. The
interview lasted approximately forty-five minutes. Further, at the time of the first
interview, Kimiko was thirty-six years old and had completed eleven years of schooling.
{¶ 31} At the beginning of the interview, Det. House informed Kimiko that she was
not under arrest but that she would be read her Miranda rights. Det. House then
proceeded to review the pre-interview waiver of rights form with Kimiko, after which she
agreed to speak with the detectives without an attorney present. Det. House testified
that although Kimiko seemed withdrawn and reserved, she was not “overly emotional”
and had no trouble answering the questions that were asked of her. While there were
times during the interview when Kimiko cried, Det. House testified that she never got so
emotional that she was unable to continue. At no point during the interview did Kimiko
indicate that she wanted to stop answering questions. Moreover, Det. House testified
that Kimiko did not appear to be under the influence of drugs or alcohol. At the end of
the interview, Kimiko was not arrested; rather, she was allowed to leave and obtained her
own transportation to go home.
{¶ 32} Kimiko asserts that during the first interview, Det. House made a statement
in which he essentially promised her that she would not be charged if she cooperated
with the police and answered their questions. Kimiko argues the statement made by Det.
House “coerced [her] into an involuntary confession” by “taking advantage of her
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overwrought emotional state following such a traumatic experience with *** promises of
leniency by the police.” The following recorded exchange occurred between Kimiko and
Det. House during the first interview:
Det. House: Now, you know, just to be real with you – okay – to let
you know what’s going on – what’s going to happen is we have to
investigate this.
Um, as I said, right now you’re not under arrest, you know. I have
no idea if any type of charges would come from this. Um, I don’t anticipate
that but that’s not my decision – okay – only because we – we take all the
information that we have.
Um, we present the case to the prosecutor’s office. If they feel that
there’s some reason, you know, that charges can be brought forward, they
will –
Kimiko: (Indiscernible) charge me because them other two incidents
–
Det. House: Well, those other case have to be looked at, you know.
It’s – I’m stating here right now I can’t say that that’s – that’s going to be
what happens. You know, I can’t say one way or the other, you know, but
just to let you know that’s what has to be looked at. Okay? And, you
know, as soon as we find out one way or the other, you will – we’ll obviously
let you know what’s going on. ***
{¶ 33} In our view, the statements made by Det. House during the first interview
do not amount to coercion. Det. House never tried to scare Kimiko, never threatened
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her, and never promised leniency. More importantly, Det. House never told Kimiko that
she would not be charged with a crime. In fact, Det. House stated that his task was to
investigate the death of J.Q. and present his findings to the prosecutor. Det. House
advised Kimiko that it was the prosecutor’s decision whether to pursue a criminal case
against her. Accordingly, the totality of the circumstances establishes that the
questioning of Kimiko during the first interview was not unlawfully coercive, and she
knowingly, intelligently, and voluntarily waived her constitutional rights.
Second Interview – July 21, 2014
{¶ 34} On July 21, 2014, Kimiko voluntarily agreed to be interviewed a second time
by police. After being transported to the Safety Building by a relative, Kimiko was
escorted to an interview room by Det. Via. Similar to the first interview, the second
interview was also recorded. Kimiko was not placed in handcuffs, nor was she denied
access to food, water, or use of a restroom. The second interview lasted approximately
one hour. Kimiko was interviewed by Det. Via and Det. Thomas Cope.
{¶ 35} Again, Kimiko was informed that she was not under arrest but that she
would be read her Miranda rights. Det. Via then proceeded to review the pre-interview
waiver of rights form with Kimiko, after which she agreed to speak with the detectives
without an attorney present. Det. Via specifically asked Kimiko if she felt that she was
being coerced into answering questions, and she stated that she did not feel that way.
Kimiko reiterated that she had completed eleven years of school. Det. Via testified that
Kimiko did not appear to be under the influence of drugs or alcohol. Additionally, no
evidence was presented which established that Kimiko was “emotionally overwrought” or
otherwise incapable of answering the detectives’ questions. At the end of the interview,
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Kimiko stated that she wanted to speak with an attorney. Det. Via testified that at that
point, all questioning ceased. Kimiko was not arrested; rather, she was allowed to leave
and obtained her own transportation to go home.
{¶ 36} Kimiko argues that during the second recorded interview, Det. Cope
misstated the law, and his misstatement amounted to coercion thereby rendering her
statements inadmissible. During the second interview, the following exchange occurred:
Det. Cope: I would just say a dog mauling. (Indiscernible). He’s going
to put “dog mauling” here. We’re not sure that what we’re dealing with is a
crime or isn’t a crime and, if it is a crime, what crime it would be kind of
thing. It’s kind of uncharted territory but we do know that the dog mauled
the kid to death so that’s what we’re going to put on there – just so you
know. That’s (indiscernible). Just so that you’re not confused in any way.
Okay?
Kimiko: Okay.
{¶ 37} The record establishes that Det. Cope made the above statement in
reference to the subject of the interview which he wrote down at the top of the pre-
interview waiver of rights form. We cannot find that Det. Cope was lying to Kimiko, nor
did he misstate the applicable law when he decided upon “dog mauling” as the heading
on the pre-interview form. This characterization of the events is not coercive and does
not amount to any kind of promise or threat to induce Kimiko to speak to the detectives.
{¶ 38} Kimiko also argues that Det. Cope made statements during the second
interview claiming that Busa was more aggressive because it had not been neutered and
that the ARC awareness class that she had attended prior to the incident taught her that
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pit bulls were vicious animals. Kimiko contends that these statements amount to
coercive behavior. The following exchange occurred in pertinent part:
Det. Cope: Why – why would you keep – why would you not fix him?
Did you intend on breeding him or –
Kimiko: Yeah, we intended on breeding him.
Q: Okay. And now have you heard – you know the fact that when
you don’t neuter a dog, the testosterone is still flowing – did you know about
that?
A: (Indiscernible) out.
Q: Okay. When did –
A: I went to the, um, classes.
Q: Okay. You said in your classes? When did go to classes?
A: Um, the mailman incident.
Q: Okay. Was that because [sic] a result of the mailman incident?
A: Uh-huh.
Q: Okay. Where were these classes held?
A: At the, um, Animal Resource Center.
***
Q: *** Okay. And what did you learn from these classes?
A: They took a lot of pictures of what dogs can do, all the common
vicious dogs. Um, they mentioned about spay and neutering [sic]. They
mentioned about how important a license is – dog license – and, um, they
talked about so much. There was information [sic] different clinics and
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places we could go and get him spayed – you know, the animal spayed or
neutered.
Q: Okay. And they showed you – basically they showed you all the,
like, low cost options you had for doing that and they explained to you that,
by not spaying or neutering your dog, you’re making it more aggressive?
Was that part of the program?
A: Yeah.
Q: Okay. So that happens. You get that information, right? And
that’s given – and that’s in response to him attacking the mailman. Okay?
A month later or less than – probably less than a month after that –
because you had the incident and then you had the class and then he bit
this dog walking down the street. Right?
A: Yes.
Q: Oaky. And you still didn’t get him fixed? You had to think, “Oh
man. This is becoming a liability to me. I really need to do something
about this.” I mean, I guess I don’t understand what the purpose was of
not getting him fixed at that point.
A: At that point, we still trying to breed him [sic].
{¶ 39} Upon review, we agree with the trial court that Det. Cope’s statements were
not misleading or coercive. Det. Cope wanted to know why Kimiko failed to have Busa
neutered after the two prior attacks and despite the class where she learned about the
benefits of spaying or neutering an aggressive dog. Kimiko’s explanation for failing to
neuter Busa was that she wanted to breed him. Kimiko was aware, because of what she
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learned in the animal awareness class and what she had been told by ARC officers, that
neutering Busa would make him less aggressive.
{¶ 40} The totality of the circumstances here establishes that the questioning of
Kimiko was not unlawfully coercive. The second recorded interview reveals no time
when Kimiko’s free will was overborne. Kimiko’s entire conversation with the Det. Cope
was voluntary and her statements were not the result of any threat or improper
inducement. Significantly, Kimiko ended the second interview herself by requesting an
attorney, after which she made no further statements. Accordingly, we find that the trial
court did not err by overruling Kimiko's motion to suppress the statements that she made
during the first and second interviews.
{¶ 41} Kimiko’s first assignment of error is overruled.
{¶ 42} Kimiko’s second assignment of error is as follows:
{¶ 43} “THE TRIAL COURT ERRED BY OVERRULING MS. HARDY’S MOTION
TO DISMISS.”
{¶ 44} In her second assignment, Kimiko argues that she should only have been
found guilty of Count III, failure to confine a vicious dog (dog kills person), in violation of
R.C. 955.22(C)(2), a felony of the fourth degree, because that is the more specific offense,
and the remaining five counts are all general offenses.
{¶ 45} R.C. 1.51 provides:
If a general provision conflicts with a special or local provision, they
shall be construed, if possible, so that effect is given to both. If the conflict
between the provisions is irreconcilable, the special or local provision
prevails as an exception to the general provision, unless the general
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provision is the later adoption and the manifest intent is that the general
provision prevail.
{¶ 46} In State v. Volpe, 38 Ohio St.3d 191, 527 N.E.2d 818 (1988), the Ohio
Supreme Court noted that R.C. 2915.02 prohibits criminal possession and control of a
gambling device and classifies such conduct as a misdemeanor. Id. at paragraph 2 of the
syllabus. The court therefore determined that under R.C. 1.51, the defendant could not
be charged with a felony under R.C. 2923.24 for possession and control of criminal tools
in connection with the possession of gambling devices. Id. at 194. The court found that
if a general provision and a special provision are in conflict, the special provision takes
precedence unless there is a manifest legislative intent that a general provision of the
Revised Code prevail over a special provision. Id.
{¶ 47} In State v. Chippendale, 52 Ohio St.3d 118, 556 N.E.2d 1134 (1990), the
Ohio Supreme Court further held that “where the legislative intent is manifest that general
and special provisions be applied coextensively and where the provisions are allied
offenses of similar import, then the prosecution may charge on and try both, but the
defendant may be sentenced upon his or her conviction for only one of the offenses.” Id.
at 122.
{¶ 48} The Chippendale court explained:
To summarize, R.C. 1.51 comes into play only when a general and
a special provision constitute allied offenses of similar import and
additionally do not constitute crimes committed separately or with a
separate animus for each crime. When this is the case, we must proceed
with our analysis of R.C. 1.51.
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Where it is clear that a general provision of the Criminal Code applies
coextensively with a special provision, R.C. 1.51 allows a prosecutor to
charge on both. Conversely, where it is clear that a special provision
prevails over a general provision or the Criminal Code is silent or ambiguous
on the matter, under R.C. 1.51, a prosecutor may charge only on the special
provision. The only exception in the statute is where “ * * * the general
provision is the later provision and the manifest intent is that the general
provision prevail.” Thus, unless the legislature enacts or amends the
general provision later in time and manifests its intent to have the general
provision apply coextensively with the special provision, the special
provision must be the only provision applied to the defendant.
Id. at 120 -121.
{¶ 49} Therefore, in determining the applicability of R.C. 1.51, we must first
ascertain whether the statutes at issue in the instant case present an irreconcilable
conflict. Such a conflict arises when the same conduct receives different penalties under
two different statutes. Chippendale, 52 Ohio St.3d at 120. If the offenses are not allied
offenses of similar import they are not irreconcilable under R.C. 1.51. See State v.
Davis, 9th Dist. Summit No. 21762, 2004-Ohio-3704, ¶ 6.
{¶ 50} As previously discussed, Kimiko was charged with two counts of involuntary
manslaughter (misdemeanor), in violation of R.C. 2903.04(B), both felonies of the third
degree (Counts I and II); one count of failure to confine a vicious dog (dog kills person),
in violation of R.C. 955.22(C)(2) and R.C. 955.99(H)(1)(a), a felony of the fourth degree
(Count III); one count of involuntary manslaughter (felony), in violation of R.C. 2903.04(A),
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a felony of the first degree (Count IV); one count of endangering children (parent-serious
harm), in violation of R.C. 2919.22(A), a felony of the third degree (Count V); and one
count of involuntary manslaughter (felony child endangering), in violation of R.C.
2903.04(A), a felony of the first degree (Count VI).
{¶ 51} R.C. 955.22(C)(2) provides as follows:
(C) Except when a dog is lawfully engaged in hunting and accompanied by
the owner, keeper, harborer, or handler of the dog, no owner, keeper, or
harborer of any dog shall fail at any time to
***
(2) Keep the dog under the reasonable control of some person.
{¶ 52} R.C. 955.99(H)(1)(a) states in pertinent part:
(H)(1) Whoever commits a violation of division (C) of section 955.22 of the
Revised Code that involves a vicious dog is guilty of one of the following:
(a) A felony of the fourth degree if the dog kills a person. Additionally, the
court shall order that the vicious dog be humanely destroyed by a licensed
veterinarian, the county dog warden, or the county humane society at the
owner's expense.
{¶ 53} Involuntary manslaughter pursuant to R.C. 2903.04(B) provides in pertinent
part that “[n]o person shall cause the death of another *** as a proximate result of the
offender’s committing or attempting to commit a misdemeanor of any degree, a regulatory
offense, or a minor misdemeanor.” Involuntary manslaughter pursuant to R.C.
2903.04(A) provides that “[n]o person shall cause the death of another *** as a proximate
result of the offender’s committing or attempting to commit a felony.” Finally,
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endangering children pursuant to R.C. 2919.22(A) states in pertinent part that “[n]o
person, who is the *** person having custody or control *** of a child under eighteen years
of age *** shall create a substantial risk to the health or safety of the child, by violating a
duty of care, protection, or support.” Endangering children rises to a felony offense if the
violation “results in serious physical harm to the child involved.” R.C. 2919.22(E)(2)(c).
The endangering children statute does not contain an enhanced penalty provision
addressing a situation where the offense results in the death of the child. See R.C.
2919.22(E).
{¶ 54} With respect to R.C. 955.22(C), we stated the following in State v. Squires,
108 Ohio App.3d 716, 671 N.E.2d 627 (2d Dist.1996):
Though the owner of a dog who permits it to roam at large may have
a bad purpose in doing so, there is no bad purpose inherent in the conduct
prohibited by R.C. 955.22(C), failing to keep a dog confined to its
owner's premises. The concern of the statute is not the conduct of the owner
but the potential for injury to persons and damage to their property
presented by roaming dogs and the potential for injury to the animal
involved. Therefore, the statute imposes a duty on the dog's owner to keep
it confined, and it makes the owner criminally liable for a breach of that duty
regardless of how it came about. The statute thus plainly indicates a
purpose to impose criminal liability strictly for the conduct it prohibits, not
because of the culpability of the actor in committing it.
Id. at 718-719; see also State v. Thaler, 2d Dist. Montgomery No. 22579, 2008-Ohio-5525(holding that R.C.G.O. 91.50 is a strict liability offense).
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{¶ 55} In order to prove Kimiko was guilty of involuntary manslaughter in Counts I
and II, the State had to show that she caused the death of J.Q. as a proximate result of
committing or attempting to commit a misdemeanor. R.C. 2903.04(B). In order to prove
Kimiko was guilty of involuntary manslaughter in Counts IV and VI, the State had to show
that she caused the death of J.Q. as a proximate result of committing or attempting to
commit a felony. R.C. 2903.04(A). “The culpable mental state for involuntary
manslaughter is that of the underlying offense.” State v. Hancher, 2d Dist. Montgomery
No. 23515, 2010–Ohio–2507, ¶ 67 (citation omitted). The underlying offense must be
one “which, while taken without an intention to kill, was performed in circumstances in
which a reasonable person would foresee that it would cause the death of the victim.”
State v. Gunnell, 2d Dist. Clark No. 09-CA-0013, 2010-Ohio-4415, ¶ 185, citing State v.
Ziko, 71 Ohio App.3d 832, 837, 595 N.E.2d 1019 (8th Dist.1991). “Involuntary
manslaughter involves a lesser mental state as it is a killing which proximately results
from the defendant's committing or attempting to commit another offense.” State v.
Johnson, 6 Ohio St.3d 420, 424, 453 N.E.2d 595 (1983), reversed on other grounds, 467
U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984).
{¶ 56} Additionally, the culpable mental state for child endangering is
recklessness. State v. Isaac, 5th Dist. Richland No. 16CA19, 2016-Ohio-8249, ¶ 27. “A
person acts recklessly when, with heedless indifference to the consequences, the person
disregards a substantial and unjustifiable risk that the person's 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, the person
disregards a substantial and unjustifiable risk that such circumstances are likely to
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exist.” R.C. 2901.22(C). Where serious physical harm results, as it did in this case, the
offense is a felony of the third degree. R.C. 2919.22(E)(1)(c).
{¶ 57} Upon review, we conclude that R.C. 2903.04, R.C. 2919.22, and
R.C. 955.22(C) do not provide different penalties for the same conduct, and they can
accordingly be construed to give effect to each of the statutes. In other words, the
statutes are not irreconcilable, and analysis pursuant to R.C. 1.51 is not required. R.C.
955.22 is a strict liability offense, and therefore, has no mens rea. In order to prove
involuntary manslaughter, however, the State has to establish proximate cause and
foreseeability. In order to prove child endangering, the State has to establish that the
defendant acted recklessly. Thus, R.C. 955.22 is not a specific provision to the general
provision of either R.C. 2903.04 or R.C. 2919.22. Accord State v. Venditti, 134 Ohio
App.3d 326, 329, 731 N.E.2d 184 (9th Dist.1999). Based upon the foregoing, the trial
court did not err when it overruled Kimiko’s motion to dismiss pursuant to R.C. 1.51.
{¶ 58} Kimiko’s second assignment of error is overruled.
{¶ 59} Kimiko’s third assignment of error is as follows:
{¶ 60} “THE TRIAL COURT ERRED BY OVERRULING MS. HARDY’S MOTION
IN LIMINE REGARDING THE USE OF OTHER ACTS EVIDENCE.”
{¶ 61} In her third assignment, Kimiko contends that the trial court erred when it
overruled her motion in limine and allowed the State to adduce evidence of Busa’s prior
attacks on the mail carrier and other dog in the months leading up to Busa’s fatal attack
on J.Q.
{¶ 62} Evid.R. 404(B) provides:
(B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs,
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or acts is not admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. In criminal cases,
the proponent of evidence to be offered under this rule shall provide
reasonable notice in advance of trial, or during trial if the court excuses
pretrial notice on good cause shown, of the general nature of any such
evidence it intends to introduce at trial.
{¶ 63} Evid.R. 403(A) provides:
Exclusion mandatory. Although relevant, evidence is not admissible
if its probative value is substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.
{¶ 64} We have followed established precedent holding that Evid.R. 404(B) must
be strictly construed against the admissibility of other-bad-act evidence. State v.
Shaw, 2d Dist. Montgomery No. 21880, 2008–Ohio–1317, citing State v. Broom, 40 Ohio
St.3d 277, 533 N.E.2d 682 (1988). “The courts in Ohio have long recognized that
evidence of other crimes, wrongs or bad acts carries the potential for the most virulent
kind of prejudice for the accused.” Id. at ¶ 13. The Supreme Court of Ohio has
established the following three-part test for the admission of 404(B) testimony:
The first step is to consider whether the other acts evidence is relevant to
making any fact that is of consequence to the determination of the action
more or less probable than it would be without the evidence. Evid.R. 401.
The next step is to consider whether evidence of the other crimes, wrongs,
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or acts is presented to prove the character of the accused in order to show
activity in conformity therewith or whether the other acts evidence is
presented for a legitimate purpose, such as those stated in Evid.R. 404(B).
The third step is to consider whether the probative value of the other acts
evidence is substantially outweighed by the danger of unfair
prejudice. See Evid.R 403.
State v. Williams, 134 Ohio St.3d 521, 2012–Ohio–5695, 983 N.E.2d 1278, ¶ 20.
{¶ 65} The admission of other-bad-acts evidence under Evid.R. 404(B) “lies within
the broad discretion of the trial court, and a reviewing court should not disturb evidentiary
decisions in the absence of an abuse of discretion that has created material
prejudice.” State v. Perez, 124 Ohio St.3d 122, 2009–Ohio–6179, 920 N.E.2d 104, ¶ 96,
citing State v. Diar, 120 Ohio St.3d 460, 2008–Ohio–6266, 900 N.E.2d 565, ¶
66 (emphasis added). “Prejudice occurs if there is a reasonable possibility that the error
might have contributed to the conviction.” State v. Cowans, 10 Ohio St.2d 96, 104–105,
227 N.E.2d 201 (1967).
{¶ 66} In her third assignment, Kimiko argues that the trial court erred when it
permitted the State to introduce evidence regarding Busa’s prior attacks on the mail
carrier and Crickmore’s dog which occurred just before Busa’s fatal attack on J.Q.
Specifically, Kimiko contends that the evidence of the prior attacks was not relevant in the
instant case because neither attack “was substantially similar to the events that led to
[J.Q.]’s death in that both of these prior incidents took place outside the home, and neither
involved an attack similar to what occurred in the present matter.” Kimiko also argues
that her knowledge of the prior attacks was not relevant to determining the foreseeability
-26-
of Busa’s fatal attack of J.Q. on July 20, 2014. Lastly, Kimiko argues that the probative
value of the prior attacks is substantially outweighed by the danger of unfair prejudice
which resulted from the admission of said evidence.
{¶ 67} Upon review, we conclude that the two prior attacks were directly relevant
to Kimiko’s knowledge of Busa’s aggressive and hostile behavior at the time of the fatal
attack on J.Q. Kimiko was clearly aware of both incidents at the time of J.Q.’s death.
Moreover, Kimiko was required to take an animal awareness class sponsored by the ARC
because of Busa’s attack on the mail carrier. Kimiko also had several interactions with
ARC officers because of Busa’s prior attacks. During trial, the State was required to
prove that Kimiko acted recklessly (child endangering), and that the fatal attack was
foreseeable (involuntary manslaughter). Here, the evidence of Busa’s prior attacks was
not used to establish that Kimiko’s conduct on the date of J.Q.’s death conformed to a
particular character trait. Rather, Hardy’s knowledge of Busa’s prior attacks was relevant
in determining the foreseeability that Busa would attack J.Q. when he stayed at her house
on July 20, 2014.
{¶ 68} Furthermore, the fact that the prior attacks occurred outside the residence
while J.Q.’s mauling occurred inside the house is immaterial to our analysis. Whether
Busa committed the prior attacks inside or outside the house is irrelevant because the
purpose of the evidence was to establish that Kimiko had knowledge of the dog’s hostile
and aggressive nature when J.Q. was killed.
{¶ 69} Therefore, the evidence of Busa’s prior attacks satisfied the first two steps
of the Williams analysis. With respect to the third prong of the Williams analysis,
exclusion of relevant evidence is mandatory where the “probative value [of the evidence]
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is substantially outweighed by the danger of unfair prejudice, of confusion of the issues,
or of misleading the jury.” Evid.R. 403(A). For the evidence to be excluded on this basis,
“the probative value must be minimal and the prejudice great.” State v. Morales, 32 Ohio
St.3d 252, 257, 513 N.E.2d 267 (1987). The introduction of evidence regarding Busa’s
prior attacks on the mail carrier and Crickmore’s dog which occurred just before Busa’s
fatal attack on J.Q. was relevant and not unfairly prejudicial to Kimiko. Evidence
regarding the prior attacks was highly probative as it established that Kimiko had prior
knowledge of Busa’s aggressive and violent nature. Unfavorable evidence is not
equivalent to unfairly prejudicial evidence. State v. Bowman, 144 Ohio App.3d 179, 185,
759 N.E.2d 856 (12th Dist.2001). Accordingly, we find the trial court did not err in
admitting evidence regarding the two prior attacks as the danger of unfair prejudice was
minimal and did not substantially outweigh the probative value of the evidence.
{¶ 70} Kimiko’s third assignment of error is overruled.
{¶ 71} Kimiko’s fourth assignment of error is as follows:
{¶ 72} “MS. HARDY WAS DENIED HER CONSTITUTIONALLY GUARANTEED
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.”
{¶ 73} In her fourth assignment, Kimiko argues that her trial counsel was deficient
for failing to request a limiting instruction regarding the evidence of Busa’s prior attacks
on the mailman and Crickmore’s dog. Kimiko also argues that she received ineffective
assistance when her trial counsel failed to request a limiting instruction regarding her own
characterization of Busa as “vicious” during her interviews with the detectives conducted
immediately after J.Q.’s death. Furthermore, Kimiko argues that her counsel should
have requested that the trial court define “vicious” for the jury.
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{¶ 74} To reverse a conviction based on ineffective assistance of counsel, an
appellant must demonstrate both that trial counsel's conduct fell below an objective
standard of reasonableness and that the errors were serious enough to create a
reasonable probability that, but for the errors, the result of the trial would have been
different. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Trial counsel is
entitled to a strong presumption that his or her conduct falls within the wide range of
reasonable assistance. Strickland, 466 U.S. at 688.
{¶ 75} “When evidence which is admissible * * * for one purpose but not admissible
* * * for another purpose is admitted, the court, upon request of a party, shall restrict the
evidence to its proper scope and instruct the jury accordingly.” Evid.R. 105.
{¶ 76} Counsel's decision not to request a limiting instruction may have been a
strategic decision in order to avoid drawing further attention to Kimiko’s knowledge of
Busa’s aggressive nature based upon the prior attacks. Trial strategy decisions will not
be the basis of a finding of ineffective assistance. State v. Dixon, 101 Ohio St.3d 328,
2004–Ohio–1585, 805 N.E.2d 1042, ¶ 52. Moreover, even if trial counsel should have
requested a limiting instruction, Kimiko must still demonstrate that she was prejudiced by
counsel's failure in order to prevail upon an ineffective assistance of counsel claim. For
the reasons discussed in response to Kimiko’s Third Assignment of Error, we conclude
that it is unlikely that a lack of a limiting instruction caused the jury's finding of guilt. In
other words, we conclude that it is unlikely that Kimiko would have been acquitted if the
instruction had been given. By adducing evidence regarding Busa’s prior attacks on the
mail carrier and Crickmore’s dog, the State sought to establish that Kimiko had knowledge
-29-
of Busa’s dangerous nature and that J.Q.’s death was not merely an accident, but a
foreseeable event that could have been avoided had the proper precautions been taken.
{¶ 77} In State v. Tisdale, 2d Dist. Montgomery No. 19346, 2003–Ohio–4209, we
concluded that trial counsel did not render ineffective assistance where counsel failed to
request any limiting instruction on the admission of evidence of prior acts under Evid.R
404(B). Id. at ¶ 48. We commented that while we had “recognized that a defendant is
entitled to an appropriate instruction limiting the scope of a jury's consideration of
potentially prejudicial evidence that is admitted for a very limited purpose, we have also
recognized that a defendant may decide, as a matter of trial strategy, not to request a
limiting instruction because of concerns that it will only emphasize in the juror's minds the
evidence of other criminal acts committed by defendant to which the instruction applies,
thereby reinforcing the prejudice.” Id., citing State v. McDaniel, 2d Dist. Clark No.
2853, 1992 WL 206759 (Aug. 19, 1992).
{¶ 78} Further, we find that trial counsel was not ineffective for failing to request a
definition of “vicious” or limiting instruction thereon. It is undisputed that Busa attacked
and killed seven-month old J.Q. as he sat in his car seat on the living room floor of
Kimiko’s residence. The attack was unprovoked, and based upon Busa’s prior
aggressive behavior, Kimiko was aware (had knowledge) that the dog was potentially
very dangerous. By failing to request an instruction on “vicious”, trial counsel may have
been trying to avoid emphasizing Busa’s dangerous nature in the jurors’ minds. Thus,
we conclude that it is unlikely that Kimiko would have been acquitted if the instruction had
been given.
{¶ 79} Kimiko’s fourth assignment of error is overruled.
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{¶ 80} Because they are interrelated, Kimiko’s fifth and sixth assignments of error
will be discussed together as follows:
{¶ 81} “THE TRIAL COURT ERRED BY OVERRULING MS. HARDY’S MOTION
FOR ACQUITTAL SINCE THE STATE FAILED TO SUPPLY SUFFICIENT EVIDENCE
AS TO ALL THE ELEMENTS NECESSARY TO SUPPORT THE CHARGES AGAINST
MS. HARDY.”
{¶ 82} “THE JURY’S VERDICTS SHOULD BE REVERSED AS THEY ARE
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 83} In her fifth assignment, Kimiko contends that the trial court erred when it
overruled her Crim.R. 29 motion for acquittal made at the close of evidence. In her sixth
assignment, Kimiko argues that her convictions were against the manifest weight of the
evidence.
{¶ 84} Crim. R. 29(A) states that a court shall order an entry of judgment of
acquittal if the evidence is insufficient to sustain a conviction for the charged offense.
“Reviewing the denial of a Crim. R. 29(A) motion therefore requires an appellate court to
use the same standard as is used to review a sufficiency of the evidence claim.” State v.
Witcher, 6th Dist. Lucas No. L–06–1039, 2007-Ohio-3960, ¶ 20. “In reviewing a claim
of insufficient evidence, ‘[t]he relevant inquiry is whether, after reviewing 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.’ ” (Citations
omitted). State v. Crowley, 2d Dist. Clark No. 2007 CA 99, 2008-Ohio-4636, ¶ 12.
{¶ 85} “A challenge to the sufficiency of the evidence differs from a challenge to
the manifest weight of the evidence.” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-
-31-
6046, 837 N.E.2d 315, ¶ 69. “A claim that a jury verdict is against the manifest weight of
the evidence involves a different test. ‘The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered. The discretionary power to grant a new trial should be exercised
only in the exceptional case in which the evidence weighs heavily against the
conviction.’ ” (Citations omitted.) Id. at ¶ 71.
{¶ 86} The credibility of the witnesses and the weight to be given to their testimony
are matters for the trier of facts to resolve. State v. DeHass, 10 Ohio St.2d 230, 231, 227
N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the
witnesses, the cautious exercise of the discretionary power of a court of appeals to find
that a judgment is against the manifest weight of the evidence requires that substantial
deference be extended to the factfinder's determinations of credibility. The decision
whether, and to what extent, to credit the testimony of particular witnesses is within the
peculiar competence of the factfinder, who has seen and heard the witness.” State v.
Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997).
{¶ 87} This court will not substitute its judgment for that of the trier of facts on the
issue of witness credibility unless it is patently apparent that the trier of fact lost its way in
arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97–CA–03, 1997 WL
691510 (Oct. 24, 1997).
{¶ 88} As previously discussed, “[t]he culpable mental state for involuntary
manslaughter is that of the underlying offense.” State v. Hancher, 2d Dist. Montgomery
-32-
No. 23515, 2010–Ohio–2507, ¶ 67. In order to prove Kimiko was guilty of involuntary
manslaughter in Counts I and II, the State had to show that she caused the death of J.Q.
as a proximate result of committing or attempting to commit a misdemeanor. R.C.
2903.04(B). In order to prove Kimiko was guilty of involuntary manslaughter in Counts
IV and VI, the State had to show that she caused the death of J.Q. as a proximate result
of committing or attempting to commit a felony. R.C. 2903.04(A). The underlying offense
must be one “which, while taken without an intention to kill, was performed in
circumstances in which a reasonable person would foresee that it would cause the death
of the victim.” State v. Gunnell, 2d Dist. Clark No. 09-CA-0013, 2010-Ohio-4415, ¶ 185,
citing State v. Ziko, 71 Ohio App.3d 832, 837, 595 N.E.2d 1019 (8th Dist.1991).
{¶ 89} Furthermore, the culpable mental state for child endangering is
recklessness. State v. Isaac, 5th Dist. Richland No. 16CA19, 2016-Ohio-8249, ¶ 27. “A
person acts recklessly when, with heedless indifference to the consequences, the person
disregards a substantial and unjustifiable risk that the person's 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, the person
disregards a substantial and unjustifiable risk that such circumstances are likely to
exist.” R.C. 2901.22(C). Where serious physical harm results, as it did in this case, the
offense is a felony of the third degree. R.C. 2919.22(E)(1)(c).
{¶ 90} It is undisputed that Kimiko was the owner of Busa on July 20, 2014, when
the dog fatally mauled J.Q. The evidence further established that in the three months
prior to J.Q.’s death, Busa attacked the mail carrier, Freels, and attacked another dog.
After each incident, ARC officers contacted Kimiko and advised her regarding how to
-33-
address Busa’s dangerous behavior. Officer White recommended to Kimiko that she
have Busa neutered in order to curb his aggressive behavior. At the ARC awareness
program that Kimiko attended, she was again advised to have Busa neutered in order to
render him more docile and trainable. Although Hardy was provided with ample
information regarding how to reduce Busa’s aggressiveness, she neither had Busa
neutered nor did she obtain any additional training to correct his behavior. In fact, Kimiko
admitted that she and her husband did not have Busa neutered because they wanted to
breed him.
{¶ 91} Busa was a seventy-five pound pit bull which Kimiko was unable to control
while walking him on her own. Evidence was adduced that Busa had previously broken
off his chain in the yard, and the Hardys had to use a much heavier boat chain to restrain
the dog and keep him in the yard. Kimiko testified that she had two large dog cages with
locks in the basement that were reinforced with zip ties where she kept Busa. Prior to the
attack on J.Q., Kimiko had been keeping Busa in a cage in the basement to keep him
away from the baby. Additionally, Kimiko testified that she usually placed two baby gates
in the doorway in order to keep Busa confined to one area of the house and out of the
living room if he was not in a basement cage. However, on the day of J.Q.’s death, there
was only one baby gate in place, ostensibly allowing Busa to jump into the living room
where he was able to attack the baby. We also note that even though she was present
at the time of the attack, Kimiko testified that she was unable to physically keep Busa
from mauling J.Q. because of the dog’s size and ferocity.
{¶ 92} Construing the evidence presented in a light most favorable to the State, as
we must, we conclude that a rational trier of fact could find all of the essential elements
-34-
of the crimes for which Kimiko was indicted and found guilty to have been proven beyond
a reasonable doubt. Kimiko's convictions for the instant offenses were therefore
supported by legally sufficient evidence.
{¶ 93} Furthermore, having reviewed the record, we find no merit in
Kimiko's manifest-weight challenge. It is well-settled that evaluating witness credibility is
primarily for the trier of fact. State v. Benton, 2d Dist. Miami No. 2010–CA–27, 2012–
Ohio–4080, ¶ 7. Here the jury quite reasonably could have credited the extensive
testimony provided by the State's witnesses, applied said evidence and all reasonable
inferences to the elements of the offenses, and thereafter, found Kimiko guilty. Having
reviewed the entire record, we cannot clearly find that the evidence weighs heavily
against conviction, or that a manifest miscarriage of justice has occurred.
{¶ 94} Kimiko’s fifth and sixth assignments of error are overruled.
{¶ 95} All of Kimiko’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
.............
HALL, P.J. and TUCKER, J., concur.
Copies mailed to:
Heather N. Jans
Marshall G. Lachman
Hon. Mary L. Wiseman