City of Mansfield v. Studer, Case No. 2011-CA-93

Citation2012 Ohio 4840
Decision Date17 October 2012
Docket NumberCase No. 2011-CA-94,Case No. 2011-CA-93
PartiesCITY OF MANSFIELD Plaintiff-Appellee v. BRENDA STUDER Defendant-Appellant
CourtUnited States Court of Appeals (Ohio)

JUDGES:

Hon. Patricia A. Delaney, P.J.

Hon. W. Scott Gwin, J.

Hon. William B. Hoffman, J.

OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Mansfield Municipal Court, Case Nos. 2011CRB01403 and 2011CRB01654

JUDGMENT: Affirmed in part; reversed in part Remanded

DATE OF JUDGMENT ENTRY: October 17, 2012

APPEARANCES:

For Plaintiff-Appellee

MICHAEL KEMERER

Assistant Law Director

For Defendant-Appellant

ANDREW KVOCHICK

Gwin, J.,

{¶1} Appellant Brenda Studer ("Studer") appeals from the October 5, 2011 judgment entry of the Mansfield Municipal Court convicting her after a jury trial of two counts of animal cruelty, one count of disorderly conduct and one count of resisting arrest. The trial court sentenced her to a jail term of ninety days on each count, consecutive, but suspended on the condition of three years of supervised probation. The trial court further ordered she not possess any dogs or cats, undergo a mental health evaluation, and pay restitution to the Humane Society for the costs of housing the animals of which she was convicted. Appellee is the State of Ohio.

Facts and Procedural History

{¶2} Studer confined a large number of dogs and cats inside of half of a barn she rented and a small shed she had placed on the property at 2306 Bowman Road, Mansfield, Ohio. The Humane Society had previously had dealings with her and knew she was keeping animals at the location. Periodically, over a period of three years, they would check this property to make sure the conditions the animals were housed in were appropriate.

{¶3} On March 3, 2011, Studer went to Melanie Hull, DVM with two puppies, both of which were missing portions of a front leg and ear. The puppies injuries coupled with "some of the things that were said between [Studer] and some of [Dr. Hull's] staff" caused Dr. Hull to feel "it at least needed looked into," so she contacted the Humane Society.

{¶4} On March 11, 2011, agents of the Richland County Humane Society stopped at the Bowman Road property to inspect it. Studer was not present, so humanesociety agents questioned the property owner, Barbara Marsh, who gave them permission to look around. While standing on the side of the barn belonging to Marsh, which was not rented to Studer, agents were able to look through an opening in a partition to view the condition of the animals housed by Studer. They then examined another small outbuilding by peering through the window. Humane society agents observed violations of law concerning the conditions in which the animals were housed. Accordingly, the agents sought and received a search warrant signed by a magistrate of the Mansfield Municipal Court to enter all parts of the structures at 2306 Bowman Road and seize animals and evidence of their mistreatment.

{¶5} While executing the warrant, humane society agents noticed that the buildings lacked fresh air, there was a large build-up of waste that had literally buried the dogs in their own cages, and there was a lack of wholesome food and water. Ultimately, over fifty dogs and over thirty cats belonging to Studer were seized from 2306 Bowman Street, Mansfield, Ohio between March 31 and April 1, 2011.

{¶6} On March 31, 2011, while humane society agents and volunteers were executing the warrant, Studer arrived. Her aggressive nature concerned the humane society agents, who contacted the Richland County Sheriff's Office for their safety. Deputy Gunder and Sergeant Zehner of the Richland County Sheriff's Office arrived to monitor the execution of the warrant. In the presence of the Sheriff's deputies, Studer interfered with the humane society agents executing the warrant. After approximately one hour of interference, Sergeant Zehner attempted to arrest Studer for Obstructing Official Business and Disorderly Conduct.

{¶7} Studer fought her arrest and was charged with resisting arrest. Additionally, she threatened both humane society agents and veterinarian Melanie Hull. Studer was charged with three counts of Menacing.

{¶8} At the end of the day, Studer had also been cited with 10 counts pertaining to a failure to provide food or water in violation of R.C. 939.131(C)(2), one count of abandonment with reference to a four-month old, black, white, and tan female puppy, R.C. 959.13. One count of confining cats with no ventilation in violation of RC. 959.13(A)(4), one count of confining dogs "in shed with no ventilation — exercise" in violation of R.C. 959.13(A)(4), one count of "cruelty... by crate covered with coats" with reference to a four-month old, black, white, and tan female puppy in violation of R.C. 959.13(A)(4).

{¶9} At the conclusion of the government's case, the trial court dismissed three counts pertaining to a puppy in a car. The jury found Studer guilty of two counts of animal cruelty, one count of disorderly conduct and one count of resisting arrest.

ASSIGNMENTS OF ERROR

{¶10} Studer raises 14 assignments of error,

{¶11} "I. THE TRIAL COURT ERRED BY CONVICTING AND SENTENCING THE DEFENDANT BASED ON DIAMETRICALLY OPPOSED JURY VERDICTS.

{¶12} "II. THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE ADDITIONAL FINDING REQUIRED TO ELEVATE DISORDERLY CONDUCT TO A FOURTH-DEGREE MISDEMEANOR.

{¶13} "III. THE VERDICT FORMS DID NOT CONTAIN AN ADDITIONAL FINDING TO ELEVATE DISORDERLY CONDUCT TO A FOURTH DEGREE MISDEMEANOR OR INDICATE THE LEVEL OF THE OFFENSE.

{¶14} "IV. THE TRIAL COURT ERRED BY IMPOSING JAIL TIME FOR DISORDERLY CONDUCT, A MINOR MISDEMEANOR.

{¶15} "V. TRIAL COURT ERRED IN NOT SUPPRESSING THE EVIDENCE AS FRUIT OF THE POISONOUS TREE.

{¶16} "VI. TRIAL COURT FAILED TO ISSUE FINDINGS OF FACT PERTAINING TO THE SUPPRESSION HEARING ON THE RECORD.

{¶17} "VII. THE TRIAL COURT FAILED TO ALLOCATE EXPERT FUNDS FOR TRIAL.

{¶18} "VIII. THE CONVICTIONS FOR ANIMAL CRUELTY WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE.

{¶19} "IX. THE CONVICTIONS FOR ANIMAL CRUELTY WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶20} "X. THE TRIAL COURT COMMITTED PLAIN ERROR BY NOT INSTRUCTING THE JURY ON ALL THE ELEMENTS OF RESISTING ARREST.

{¶21} "XI. THE TRIAL COURT ERRED BY NOT INSTRUCTING THE JURY ON THE EXCESSIVE FORCE DEFENSE TO RESISTING ARREST.

{¶22} "XII. DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST AN INSTRUCTION ON THE EXCESSIVE FORCE DEFENSE TO RESISTING ARREST.

{¶23} "XIII. THE TRIAL COURT ERRED IN OVERRULING THE DEFENSE'S MOTION TO ACQUIT ON DISORDERLY CONDUCT.

{¶24} "XIV. PROVISIONS OF THE SENTENCE IMPOSED BY THE TRIAL COURT WERE UNREASONABLE AND UNLAWFUL."

I.

{¶25} In her first assignment of error, Studer alleges the jury returned diametrically opposed jury verdicts, specifically referring to three separate jury verdict forms all containing the designation "Count 14."

{¶26} The similar nature of the many charges could confuse the jury if presented as count numbers, so count numbers were not used. Instead, the criminal citations charging the complaints were attached to their respective verdict forms. The trial court notified the jury of this, stating, "As to all the animal cases, you will find attached to the Verdict Form the Complaint charging the offense, that's merely for your convenience to try to keep from being confused because there's so many counts." 3T. at 238.

{¶27} Numbers were not used in the jury instructions to identify the offenses. Further, the verdicts that were ultimately returned by the jury were identified by the text of the citations, not count numbers. Id. at 245.

{¶28} Consistent with the trial court's instruction, the verdict forms were given to the jury with the citations attached, and those citations are still attached to the verdict forms in the Court's file. A review of the verdict forms reveals that three verdict forms do mention a "Count 14." However, a review of the citation attached to the first of these reveals the jury found Studer guilty of Animal Cruelty, because "31 cats varied colors, hair length, sex" were confined, "w/ no ventilation in shed." In addition, the jury foundStuder guilty of Animal Cruelty, because "30 dogs varied breeds, sex, etc" were confined, "in shed w/ no ventilation - exercise." Finally, the last verdict form cited by Studer reveals the jury found her not guilty of a violation of R.C. 959.131, i.e. Prohibitions to Companion Animals, where she is alleged to have confined a "male fawn/white boxer . . . w/out providing water."

{¶29} It is abundantly clear which offenses the jury intended to find Studer guilty of because citations setting forth the violations were attached to each of the offenses involving animals.

{¶30} Studer's first assignment of error is overruled.

II. III., IV.

{¶31} Studer's assignments of error two through four address the disorderly conduct conviction that was treated as a fourth-degree misdemeanor. Studer contends it should have been treated as a minor misdemeanor. The state concedes that both the criminal citation advising Studer of the charge and the jury instructions suggested the elements of the minor misdemeanor.

{¶32} Accordingly, the state agrees it would be proper for this sentence to be remanded for sentencing in accordance with the lesser offense.

{¶33} Studer's second, third and fourth assignments of error are sustained.

V. & VI.

{¶34} In her fifth and sixth assignments of error, Studer challenges the search warrant, alleging the evidence obtained pursuant to the warrant should have been suppressed as the product of an illegal search and that the trial court failed to issue its findings of fact on the record in violation of Ohio Crim. R 12(F). Further, she alleges thatthe humane society agents were not properly appointed; therefore, they lacked authority to execute a search warrant.

{¶35} Studer first claims that the court's findings of fact were deficient because they did not articulate a basis for denying her ...

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