[Cite as State v. Sherman,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio/City of Toledo Court of Appeals No. L-14-1060

Appellee Trial Court No. CRB-13-19881

v.

Jodi Sherman DECISION AND JUDGMENT

Appellant Decided: August 14, 2015

*****

David Toska, City of Toledo Chief Prosecutor, and Henry Schaefer, Assistant Prosecutor, for appellee.

M. Sean McNulty, Chief Public Defender, and Kelli S. Jelinger, Assistant Public Defender, for appellant.

*****

JENSEN, J.

{¶ 1} Following a bench trial, defendant-appellant, Jodi Sherman, appeals the

February 28, 2014 judgment of the Toledo Municipal Court sentencing her with respect to her conviction of cruelty to a companion animal. For the following reasons, we

reverse the trial court’s judgment.

I. Background

{¶ 2} The facts of this case were elicited at trial through the testimony of Joanne

Wilson, an employee of Oregon Animal Hospital; Dr. Alan Kao, a veterinarian at Oregon

Animal Hospital; Nancy Schilb, an animal cruelty investigator with the Toledo Area

Humane Society; and Irvin Clark, an acquaintance of Sherman. Their testimony

established that in late October of 2013, possibly around October 27, 2013, Jodi Sherman

discovered that a stray cat that often roamed her neighborhood was hiding in a crawl

space under a house. The cat was injured. Sherman took the cat in, cleaned its wounds

with hydrogen peroxide, and bandaged and dressed the wounds. It is not alleged that

Sherman caused the cat’s injuries.

{¶ 3} On October 30, 2013, Sherman contacted her veterinarian’s office to make

an appointment for the cat. Wilson took Sherman’s call and Sherman described to

Wilson that the cat’s leg “was hanging weird” and was possibly broken. Wilson advised

Sherman that she should have the cat treated right away, but told her that she could not

bring the cat to Oregon Animal Hospital unless she was able to make a payment toward a

balance she owed on her account. Sherman was unable to make payment that day, so

Wilson advised her that it was cruel to delay in seeking treatment and that she should call

the humane society. Sherman did not want to do this because she feared that the cat

would be killed.

2. {¶ 4} On November 1, 2013—incidentally, the day Sherman received her monthly

social security payment—Sherman brought the animal to Oregon Animal Hospital

wrapped in a blanket. Dr. Kao treated the cat and found that the cat had suffered an open

fracture of its left rear leg. The bone was dry, indicating that the fracture was several

days old, and the bone repeatedly punctured the cat’s skin. Its left elbow was severely

displaced and it had a pus-filled lesion on its arm. The cat was given pain medications

and antibiotics. The severity of its leg fracture required amputation and Dr. Kao had

great difficulty in replacing its elbow.

{¶ 5} The veterinarian’s office contacted the humane society and Schilb

investigated the incident. Sherman was charged with violating R.C. 959.131(B). The

case proceeded to a bench trial on February 20, 2014. The court found Sherman guilty.

Although the court sympathized with Sherman and recognized that her intentions were

good, it explained:

I think the testimony is clear that this was a stray, and I believe that

it was a stray. Okay. And I believe you acted out of the goodness of your

heart when you attempted to care for this animal. However, under the code,

when you begin to harbor an animal by giving it food and shelter, it

becomes—you become an owner or harborer and you are subject to all the

rules and regulations with respect to animal ownership at that point.

So I do find, at the point you began to care for this animal, you did

begin to harbor it, which puts you on the hook for its care. * * *

3. I do believe that the State has met its burden at the point where you

did not seek attention on October 3rd [sic] for this animal * * *.

{¶ 6} The court referred the matter for a presentence investigation report. On

February 28, 2014, the court sentenced Sherman to 180 days at CCNO and a $1,000 fine,

both of which were suspended. She was placed on probation for five years, was ordered

to pay $788 in restitution to Dr. Kao, and was prohibited from possessing, owning, or

harboring any animal for the term of her probation. It is from this order that Sherman

appeals. She assigns the following errors for our review:

First Assignment of Error

The State failed to prove that the Defendant violated the law of

prohibitions against Companion Animal Torture and the Court as

proscribed in Ohio Revised Code Section 959.131(B) and therefore erred in

convicting the defendant [sic].

Second Assignment of Error

Counsel failed to object to Hearsay testimony that was used as the

basis for charging the defendant with the purpose to prove their case: two

part test of hearsay: [sic][.]

Third Assignment of Error

The Court erred in ordering that there be no animals in the

appellant’s home as a condition of probation.

4. Fourth Assignment of Error

The Court erred in ordering the Defendant to pay restitution to the

Oregon Animal Hospital.

II. Law and Analysis

{¶ 7} In her first assignment of error, Sherman argues that although she was

charged under R.C. 959.131(B), in finding Sherman guilty, the court cited the language

of section (C)(2) of the statute. She also urges that R.C. 959.131(B) criminalizes the

commission of an act, but not an omission to act. Because it is not alleged that Sherman

caused the cat’s injuries—only that she failed to seek immediate treatment for the cat—

she cannot be convicted of the crime with which she was charged.

{¶ 8} In essence, Sherman argues that the evidence was insufficient to support her

conviction under R.C. 959.131(B). Sufficiency of the evidence is a question of law.

State v. Rodich, 6th Dist. Sandusky No. S-13-043,

. It is a

determination of the adequacy of the evidence which requires us to review “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.” (Internal quotations and citations omitted.)

{¶ 9} The statute under which Sherman was charged, R.C. 959.131(B), provides

that “No person shall knowingly torture, torment, needlessly mutilate or maim, cruelly

beat, poison, needlessly kill, or commit an act of cruelty against a companion animal.”

Provision (A) of the statute refers to R.C. 1717.01 for the definition of “cruelty,”

5. “torment,” and “torture.” R.C. 1717.01(B) defines “cruelty,” “torment,” and “torture” as

follows:

“Cruelty,” “torment,” and “torture” include every act, omission, or

neglect by which unnecessary or unjustifiable pain or suffering is caused,

permitted, or allowed to continue, when there is a reasonable remedy or

relief. (Emphasis added.)

{¶ 10} The city argues that although Sherman could have been charged and

convicted under provision (C)(2), incorporation of the R.C. 1717.01(B) definition of

“cruelty,” “torment,” and “torture” into the statute means that R.C. 959.131(B) can be

violated by a mere omission. We reject the city’s argument.

{¶ 11} It is generally recognized that before one can be criminally liable for an

omission, he or she must owe a duty to act. State v. McNeeley,

,

(8th Dist. 1988), citing R.C. 2901.21(A). R.C. 959.131(B) does not

specifically criminalize omissions to act and it applies to all persons. It does not define

when one owes a duty to act so as to render him or her liable for an omission.

{¶ 12} R.C. 959.131(C), on the other hand, specifically prohibits omissions of care

by custodians or caretakers of companion animals. It provides:

No person who confines or who is the custodian or caretaker of a

companion animal shall negligently do any of the following:

6. (1) Commit any act by which unnecessary or unjustifiable pain or

suffering is caused, permitted, or allowed to continue, when there is a

reasonable remedy or relief, against the companion animal;

(2) Omit any act of care by which unnecessary or unjustifiable pain

or suffering is caused, permitted, or allowed to continue, when there is a

reasonable remedy or relief, against the companion animal;

(3) Commit any act of neglect by which unnecessary or unjustifiable

pain or suffering is caused, permitted, or allowed to continue, when there is

a reasonable remedy or relief, against the companion animal;

(4) Needlessly kill the companion animal;

(5) Deprive the companion animal of necessary sustenance, confine

the companion animal without supplying it during the confinement with

sufficient quantities of good, wholesome food and water, or impound or

confine the companion animal without affording it, during the

impoundment or confinement, with access to shelter from heat, cold, wind,

rain, snow, or excessive direct sunlight, if it can reasonably be expected

that the companion animal would become sick or suffer in any other way as

a result of or due to the deprivation, confinement, or impoundment or

confinement in any of those specified manners.

{¶ 13} Until it was amended effective September 13, 2013, R.C. 959.131(C)(1)

simply provided that “No person who confines or who is the custodian or caretaker of a

7. companion animal shall negligently * * * torture, torment, needlessly mutilate or maim,

cruelly beat, poison, needlessly kill, or commit an act of cruelty against the companion

animal”—language similar to (B). It now specifically prohibits omissions, as well as

commissions of neglect. We believe that if an omission could already serve as a basis for

liability under the definition of R.C. 1717.01(B), it would have been unnecessary for the

legislature to specify in (C) that omissions of care are prohibited.

{¶ 14} In State v. Fry, 2d Dist. Clark No. 2006-CA-14,

, the

Second District interpreted R.C. 959.131(C)(1) as it previously existed and held that

despite the incorporation of R.C. 1717.01(B) into the statute, construing R.C.

959.131(C)(1) strictly against the state, only acts of cruelty were punishable—not

omissions to act. Following the 2013 amendments, (C)(2) now explicitly encompasses

omissions. Our view is that if the legislature had intended for the same to be true with

respect to (B), it could have amended the language in that provision to mirror the

language in (C). Because it did not, we are left to conclude that the legislature did not

intend for (B) to criminalize omissions of care.

{¶ 15} In sum, because the legislature did not define when one owes a duty to act

and did not specify that R.C. 959.131(B) prohibits omissions of care—as it recently did

in (C)(2)—Sherman was improperly charged and convicted under (B) for failing to seek

immediate care for the cat. We, therefore, find Sherman’s first assignment of error well-

taken. Because of our disposition as to Sherman’s first assignment of error, we need not

address her remaining assignments of error.

8. III. Conclusion

{¶ 16} We find Sherman’s first assignment of error well-taken and reverse and

vacate the judgment of conviction and the February 28, 2014 sentencing judgment of the

Toledo Municipal Court. Pursuant to App.R. 24, the city is ordered to pay the costs of

this appeal.

Judgment reversed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _______________________________ JUDGE James D. Jensen, J. CONCUR. _______________________________ JUDGE Stephen A. Yarbrough, P.J., DISSENTS.

YARBROUGH, P.J.

{¶ 17} I would agree with the city’s argument and uphold appellant’s conviction

under R.C. 959.131(B). R.C. 959.131(B) specifically incorporates the definitions of

cruelty, torment, and torture into its prohibitions. R.C. 959.131(A)(2) (“‘Cruelty,’

‘torment,’ and ‘torture’ have the same meanings as in section 1717.01 of the Revised

Code.”). Those definitions clearly state a failure to act, when a reasonable alternative is

9. available, constitutes cruelty, torment, and torture. R.C. 1717.01(B) (“‘Cruelty,’

‘torment,’ and ‘torture’ include every act, omission, or neglect by which unnecessary or

unjustifiable pain or suffering is caused, permitted, or allowed to continue, when there is

reasonable remedy or relief”). This cannot be overlooked by this court when there is

little ambiguity in the language enacted by the legislature.

{¶ 18} The majority is correct in that one must have a duty to act before they can

be punished for an omission. State v. McNeeley,

,

(8th Dist. 1988). Appellant took on such a duty when she opened her home to the stray

cat. She began to care for the animal and by doing so took on the duty of ensuring the

animal was not neglected. Appellant felt the weight of this duty when she was prepared

to pay the necessary veterinarian bills out of her own pocket. The animal was not a

random animal found on the side of the road, but rather a stray that was taken in and

cared for by appellant. If appellant had merely left the animal where it laid injured, she

would not have taken on the duty to take care of the animal to such a reasonable extent.

{¶ 19} The majority finds R.C. 959.131(B) fails to preclude omissions, despite its

incorporation of the definitions of cruelty, torment, and torture, because the section

applies to “all persons.” R.C. 959.131(B). This is in stark contrast to R.C. 959.131(C)

which specifically applies to “custodians or caretakers.” R.C. 959.131(C). Though R.C.

959.131(C) gives more guidance on who can be charged with animal cruelty under the

section, appellant’s actions were still covered under R.C. 959.131(B). She still failed to

take the animal to the vet or call the Humane Society which caused the cat to suffer for a

10. longer period of time. There is no reason to differentiate between the two sections just

because one of the sections is more specific than the other or the two sections cover the

same actions.

{¶ 20} If one must look outside the section at issue here and look to the relatively

recent acts by the legislature as the majority does, one comes to the same conclusion.

The majority relies heavily on the fact R.C. 959.131(C) was revised in 2013 to

specifically include omissions in certain situations. The legislature, at the same time,

decided to keep R.C. 959.131(B) the same without making any changes. Thus, they had

an opportunity to change R.C. 959.131(B) to specifically exclude omissions or to change

the incorporation of the definitions of cruelty, torment, and torture, but failed to do so.

The majority interprets this decision to mean the legislature did not intend for R.C.

959.131(B) to include omissions. Another interpretation of this decision could mean the

legislature wanted to change the language of R.C. 959.131(C) to be more specific. This

decision has no effect on R.C. 959.131(B) or its inclusion of omissions.

{¶ 21} In sum, appellant undertook a duty of care towards an animal and then

allowed the animal to continue to suffer with major injuries before seeking help. By a

simple phone call and at no expense to appellant, she could have stopped the suffering of

the animal. I would affirm the conviction.

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.sconet.state.oh.us/rod/newpdf/?source=6.

11.