[Cite as State v. Southern,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27932 : v. : Trial Court Case No. 2017-CRB-1478 : GARY SOUTHERN : (Criminal Appeal from : Municipal Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 7th day of December, 2018.

...........

GARRETT P. BAKER, Atty. Reg. No. 0093662, City of Dayton Prosecutor’s Office, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee

STEVEN H. ECKSTEIN, Atty. Reg. No. 0037253, 1208 Bramble Avenue, Washington Court House, Ohio 43160 Attorney for Defendant-Appellant

............. -2-

FROELICH, J.

{¶ 1} Gary Southern appeals a final judgment of the Dayton Municipal Court, which

found him guilty on four counts of knowingly committing an act of cruelty against a

companion animal and sentenced him to a suspended jail sentence, with certain collateral

restrictions. The judgment of the trial court will be affirmed.

Factual Background and Procedural History

{¶ 2} On March 10, 2017, the State of Ohio filed 16 criminal complaints charging

Southern with five first-degree misdemeanor counts of knowingly committing an act of

cruelty against a companion animal, in violation of R.C. 959.131(B); five second-degree

misdemeanor counts of negligently committing an act of cruelty against a companion

animal, in violation of R.C. 959.131(D)(1); five second-degree misdemeanor counts of

depriving a companion animal of or confining a companion animal without necessary food

or sustenance, in violation of R.C. 959.131(D)(2); and one second-degree misdemeanor

count of cruelty to animals, in violation of R.C. 959.13(A)(1). The charges related to four

adult Brittany Spaniels – Laffy, Sassie, Sallie, and Polly – and a dead turtle, all found on

Southern’s property. Southern entered pleas of not guilty to all 16 charges.

{¶ 3} During Southern’s jury trial, the State presented as witnesses two animal

care and control officers (“ACOs”) with the Montgomery County Animal Resource Center

(“ARC”), as well as Montgomery County’s chief dog warden, Mark Kumpf, and two

veterinarians, Dr. Kelly Meyer and Dr. Marion Walter Belue.

{¶ 4} ACO Torbin Peterson testified that he was dispatched to Southern’s address

on January 21, 2017, to investigate a complaint of a “thin” dog. On arrival, ACO Peterson -3-

saw a house that appeared to be unoccupied, with a male dog tied to a trailer1 in the

driveway and three more dogs confined to the backyard.2 One dog in the backyard was

loose in a makeshift pen and two others were “chained to something, I couldn’t tell what.”

ACO Peterson testified that, based on his training, the dogs “looked to be about ten to

fifteen pounds underweight”; “I could see their ribcages and I could see their hip bones.”

Two empty bowls were present, but none of the dogs had food or water. ACO Peterson

also had safety concerns based on the condition of the property, which he described as

strewn with debris on which a dog “could cut its foot or injure itself.” Unable to contact

Southern, ACO Peterson spent only six to ten minutes at the property, posting “a warning

for no license” and planning to arrange a follow-up visit.

{¶ 5} ACO Jessica France testified that she was dispatched to Southern’s address

on February 1, 2017, to follow up on the concerns reported earlier. Because the house

seemed to be uninhabited, she knocked on the side of the adjacent trailer. ACO France

then saw a barking dog chained next to the trailer, from which Southern emerged. He and

ACO France walked toward the backyard, where ACO France saw two more dogs. One

of those dogs also was “chained up,” and the other was loose behind fencing.

{¶ 6} All three dogs were adult Brittany Spaniels, which ACO France described as

“dirty” and “severely underweight.” She said that their hip bones and ribs were visible,

meaning that they “d[id]n’t have healthy muscle mass.” Based on her training, she judged

the dogs to be “a four” on a scale commonly used to assess a dog’s physical condition,

1 A later witness described the trailer as “the type you would pull behind a pick-up truck.” (Tr. Vol. 1, p. 245.) 2 ACO Peterson initially mentioned two dogs in the backyard, but later referred to three dogs located there, for a total of four dogs. (See Tr. Vol. 1, pp. 122, 123, 134.) -4-

with “five being extremely emaciated.” ACO France also was concerned about the state

of the property, as there was “various debris all over the yard” that dogs could eat or in

which they could become entangled. The dogs had no water and no “quality” shelter. For

example, one dog’s available shelter was a cap designed for the back of a pickup truck,

inside which the dog could not stand up. Additionally, none of the dogs had bedding,

forcing them to lie on the cold ground “shivering,” with a risk of developing pressure sores.

{¶ 7} While ACO France did not see Southern’s fourth adult dog on that visit,

Southern did walk out with a box of that dog’s puppies, “but he did not allow me to see

them.” Southern told her that there were six puppies.

{¶ 8} ACO France testified that Southern was “argumentative” when she shared

her concerns about the adult dogs’ conditions; “[h]e stated that beauty is in the eye of the

beholder.” Told that the dogs were underweight, Southern said that Laffy (the male

Brittany Spaniel) “was recovering from parvo,” a canine virus, but he provided no medical

documentation to support that claim. He told ACO France that the dogs had not been

seen by a veterinarian “in over a year.” Southern also told France that he was feeding

each dog “a coffee cup” of Pedigree dry food each day. ACO France testified that quantity

would be insufficient for dogs the size of Brittany Spaniels. France identified various

photographs she took on that date, including some depicting the condition of the dogs

and the “debris” amidst which they were living, which were admitted into evidence and

shown to the jury.

{¶ 9} On February 8, 2017, ACO France did a follow-up visit to Southern’s

residence. The condition of the property was unchanged, and three dogs still were tied

outside with no food, no bedding, and only minimal, dirty water. Sassie, the mother dog, -5-

was inside the house, with her head sticking out of the basement window. Southern said

that he had not taken the dogs to a veterinarian due to lack of transportation, but that he

had increased their food to two cups per day. However, France noticed no change in the

dogs’ weight. She gave Southern the telephone number of Dr. Belue, who has a “mobile

vet clinic” able to come to Southern’s home to treat the dogs. She told Southern that she

would return in a week to check on the dogs’ progress.

{¶ 10} On February 14, 2017, ACO France contacted Dr. Belue, who said he had

not seen Southern’s dogs. France then reported to her supervisor her concerns about the

dogs’ well-being given their low weight and the cold weather.

{¶ 11} On February 16, 2017, a search warrant was executed on Southern’s

property by ARC’s director, an ARC supervisor, two Dayton police officers, and ACO

France. France described that day’s temperature as 40 degrees, Southern’s property as

still cluttered with trash and debris, and each dog as “emaciated” – “almost a walking

skeleton.” In order to minimize the stress on the dogs, Southern agreed to bring all of

them out to the ARC van, into which they were loaded.

{¶ 12} The ARC representatives then went into the house on Southern’s property.

ACO France testified that the house had no running water, no electricity, and no heat.

Throughout the house, but especially in the basement, “[t]he floors were covered in

feces,” trash, debris, dirt, and urine. She stated that such conditions are unsafe for dogs.

{¶ 13} Inside the trailer was a small bag of off-brand dog food that “can be bought

at dollar stores,” with a soup can presumably used to dispense the food. No veterinary

records were found, but there were documents related to breeding and selling puppies.

Four puppies were recovered from the site; Southern said that the other two had died and -6-

were buried elsewhere. On the first floor of the house, officers also found a dead box

turtle inside a crate without water, food, or heat lamps. ACO France again identified

photographs depicting the dogs, their living conditions, and the general condition of the

property as found on that date. She testified that all four adult dogs – Laffy, Sassie, Polly,

and Sallie – were underweight with protruding hip bones and ribs.

{¶ 14} Asked on cross-examination if Brittany Spaniels are hunting dogs, ACO

France said that the breed can be used to hunt, but “[t]here was no mention that these

were hunting dogs.” On re-direct, she testified that hunting dogs would need “healthy,

lean muscle mass” in order to withstand the rigors of hunting and typically would be

adequately fed.

{¶ 15} ARC director and chief dog warden Kumpf testified about his role on

February 16, 2017. Kumpf said that Southern’s property was “dilapidated,” with “a lot of

junk, trash, and debris piled up in and around the residence.” He described the four adult

dogs found there as being “pretty much one step away from walking skeletons;” they

“were clearly underweight, to the point that you could see their ribs, their hip bones * * *.

[I]t was clear that they were missing a great deal of body mass, appearing very[,] very

under weight” [sic]. Given the cold temperatures, the dogs’ low weight, and their lack of

bedding, Kumpf was concerned that they were in danger of freezing to death.

{¶ 16} Kumpf also testified that feces found throughout the scene “can harbor

disease,” and that puppies are particularly vulnerable to parvo enteritis, a communicable

disease that one of the adult dogs was purported to have had. Both parvovirus and

heartworm can be spread through feces, he said. According to Kumpf, because these

dogs were underfed, they were eating dirt and feces. The water available to them also -7-

was “contaminated” with dirt.

{¶ 17} Kumpf testified that the appearance of the four adult dogs in the

photographs presented into evidence was “deceptive” due to the masking effect of their

fur. “[T]hey don’t really show that it’s just fur over bones. There is no muscle mass. There

is no fat. There is no deposit on top of it. It’s like massaging a fur[-]covered skeleton.” He

further testified that hunting dogs would have even greater nutritional needs than other

dogs due to their active lifestyle. Kumpf said that Southern argued that the dogs were

fine, and that the dead turtle was just “hibernating,” although he couldn’t remember when

he last had given it food or water.

{¶ 18} Dr. Kelly Meyer, an ARC veterinarian, testified as an expert witness for the

State. She said that she performed intake examinations on February 16, 2016, of the four

adult Brittany Spaniels and the turtle taken from Southern’s property. The turtle was

“significantly decomposed,” making it “impossible” to determine how the turtle died or how

long it had been dead.

{¶ 19} Meyer testified that Laffy, the male dog, was almost 10 pounds underweight

and had a score of four on the canine assessment scale, “meaning that Laffy was

extremely emaciated.” “I could feel each and every rib. I could feel the hip bones. I could

feel the bones in the head.” Laffy’s coat was “extremely dirty,” foul smelling, and “covered

in urine and feces,” and his nails were “extremely long,” causing “a quite painful condition”

easily remedied by trimming the nails.

{¶ 20} As to the female dogs, Meyer testified that two (Sassie and Polly) also had

canine assessment scores of four, with the third (Sallie) being “slightly better in body

condition but [ ] only [an assessment score of] three, which is still emaciated.” All also had -8-

poor coat condition and bad odor, and Sassie and Sallie also had overly long nails. Meyer

further testified that all ate “aggressively” when first fed, “as if they had had not seen food

in a very long time,” and that Polly in particular also drank “aggressively.” “It was clear

that these dogs had not been fed enough and a couple of them had not received adequate

water either.” According to Meyer, all four of the dogs “gained approximately eight pounds

in seven days” – about 20 percent of their body weight – “with doing nothing but just

feeding them” regularly. She opined that dogs in such a state of starvation and emaciation

would be in a “constant state of hunger,” and “to me, that constitutes suffering.”

{¶ 21} In addition, Meyer testified that both Polly and Sassie, the mother dog,

tested positive for heartworms, a parasite that can damage the heart and is potentially

fatal. Although heartworm is “quite easily prevented” with a monthly pill, treatment once

heartworm has been contracted “is very dangerous for a dog that is extremely

underweight.” Meyer’s other “major concern” for Sassie was that her low body weight

meant that she “d[id]n’t have enough muscle mass and body fat to sustain adequate

nutrition for her or her puppies.” Meyer testified that Sassie “was clearly not receiving

adequate nutrition,” “was clearly not receiving [ ] adequate heartworm prevention,” and

was “in significant danger because of being strong positive [for heartworm] and being a

n[ur]sing mom with very low body weight.”

{¶ 22} According to Meyer, Polly “actually was in the worst condition” of the four

dogs. She had the lowest weight and, in addition to being a “strong positive” for

heartworm, she also tested positive for both whipworms and hookworms, parasites that

can be spread through feces and are common in dogs “living in an unsanitary

environment.” -9-

{¶ 23} Opining that all four dogs were so underweight it was “open and obvious”

to anyone that they “need[ed] help,” Meyer testified that she considered their condition to

constitute “severe neglect to the point of being intentional.”

{¶ 24} Dr. Belue, a veterinarian who operates his own mobile small animal

practice, testified that someone he believed to be Southern telephoned Belue twice in

February 2017, concerning “a challenge” from the county about the health and weight of

his dogs. Although the caller seemed to listen to Belue’s advice about the importance of

having medical records, Southern never made an appointment or obtained any services

from Belue. On cross-examination, Belue admitted that people can obtain worming

medications over the counter, “but they take a risk” that such medications may not work

and may not be the right medication, some of which are obtainable only from

veterinarians. Asked whether Brittany Spaniels are “a working breed,” Belue responded

that most Brittany Spaniels “are just pets. [Owners] don’t go out and hunt with them and

train them to hunt and do the things that they were specifically bred for. * * * All the ones

I see are pets.”

{¶ 25} At the end of the State’s case, Southern’s defense counsel moved pursuant

to Crim.R. 29 to dismiss all charges regarding the dead turtle, but then withdrew that

motion. (See Tr. Vol. 2, pp. 370-373.) Southern thereafter elected not to testify, and the

defense presented no other witnesses. Defense counsel then renewed his Crim.R. 29

motion to dismiss the counts related to the dead turtle. (Id. at pp. 375-376.) The trial court

granted that motion and dismissed the animal cruelty charge under R.C. 959.13(A)(1)

and one of each of the companion animal charges under R.C. 959.131(B), R.C.

959.131(D)(1), and R.C. 959.131(D)(2). (Id. at pp. 376-379.) -10-

{¶ 26} After deliberating over the remaining charges, the jury returned verdicts of

guilty as to all 12 counts. The trial court granted the subsequent motion of Southern’s trial

counsel to withdraw due to the breakdown of the attorney-client relationship, and new

counsel appeared on Southern’s behalf.

{¶ 27} At sentencing, the trial court merged the offenses under R.C. 959.131(D)(1),

R.C. 959.131(D)(2), and R.C. 959.13(A)(1) with the four offenses under R.C. 959.131(B),

one as to each dog. On November 14, 2017, the trial court sentenced Southern to 180

days in jail and $100 in fines as to each offense under R.C. 959.131(B), with all time and

all fines suspended, plus five years of non-reporting community control, subject to the

additional provisions that Southern “is prohibited from own[ing], possess[ing], harbor[ing],

maintain[ing], or hav[ing] care [or] custody of any animal,” and that he “allow Animal

Resources to inspect[ his] property for animals.”

{¶ 28} Southern appeals from that conviction, raising three assignments of error:

1) Trial counsel rendered ineffective assistance during trial in violation of

Southern’s rights under the Fifth, Sixth[,] and Fourteenth Amendments

to the United States Constitution, and Sections 10 and 16, Article I of the

Ohio Constitution.

2) The trial court erred in accepting the jury verdict of guilty as the evidence

presented was insufficient to conclude that guilt had been proven

beyond a reasonable doubt in violation of Southern’s rights to due

process and a fair trial under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution, and Article I, Sections

10 and 16 of the Ohio Constitution. -11-

3) The trial court erred in entering a finding of guilty because such verdict

was against the manifest weight of the evidence, Fifth and Fourteenth

Amendments, United States Constitution, and Article I, Section16 of the

Ohio Constitution.

Law Applicable to Animal Cruelty Offenses

{¶ 29} The statute governing cruelty against companion animals provides in

pertinent part as follows:

(B) 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.

R.C. 959.131.

{¶ 30} That statute defines “companion animal” as “any animal that is kept inside

a residential dwelling and any dog or cat regardless of where it is kept.” R.C.

959.131(A)(1). However, R.C. 959.131 does not apply to “[d]ogs being used or intended

for use for hunting or field trial purposes, provided that the dogs are being treated in

accordance with usual and commonly accepted practices for the care of hunting dogs.”

R.C. 959.131(G)(3).

{¶ 31} For purposes of R.C. 959.131, “[c]ruelty,” “torture,” and “torment” mean

“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.”

R.C. 1717.01(B); see R.C. 959.131(A)(2). That definition “is broad enough to include

situations where an animal suffers needlessly because of the owner’s failure to seek

critically necessary veterinary care, if such care represents a reasonable remedy.” State -12-

v. Dresbach,

,

(10th Dist. 1997). Failure to

seek timely treatment for a dog’s internal parasite infestation is one example that, if

proven, would sustain a cruelty to animals conviction.

{¶ 32} Evidence that a defendant knowingly failed to provide a companion animal

with adequate food or water also will support a conviction for violating R.C. 959.131(B).

See State v. Farmer, 12th Dist. Butler No. CA2013-06-097,

(affirming

cruelty conviction under R.C. 959.131(B) relative to “emaciated and dehydrated dog,”

finding that “starvation, dehydration, and exposure during the frigid winter months[ ] was

cruel”). “[E]ven though evidence of severe malnutrition, starvation, and emaciation is

extremely probative of the lack of sufficient food, * * * a lesser degree of nutritional

deprivation may be sufficient to sustain a conviction if the animal is not receiving enough

food to meet the needs of the situation.” Akron v. Donnelly, 9th Dist. Summit No. CA

16821,

, *3 (Feb. 22, 1995).3

{¶ 33} In another animal cruelty case, the 12th District noted that:

As defined by Merriam-Webster’s Online Dictionary and Thesaurus, the

word “starvation” means “suffering or death caused by having nothing to eat

or not enough to eat.” The term “starve” has also been defined as “to deprive

of nourishment.” Webster’s Third New International Dictionary (1993).

(Emphasis added.) State v. Morgan,

,

, ¶ 54 (12th Dist.).

See also State v. Nichols, 4th Dist. Hocking No. 017AP10,

(veterinarian’s testimony that horses “were on the verge of starvation” and other

3 There the appeal was from a conviction under R.C. 959.13(A)(1) related to underweight horses, but the rationale is relevant as to grossly underweight companion animals. -13-

witnesses’ testimony that horses were “malnourished,” “emaciated,” and looked “terrible”

was sufficient evidence to prove crime of cruelty to animals beyond a reasonable doubt).

Assignment of Error #2 – Insufficient Evidence

{¶ 34} In his second assignment of error, Southern contends that the evidence

presented by the State was constitutionally insufficient to support a finding that Southern’s

dogs “were in pain or were suffering.” Because our conclusion regarding that argument

may affect our analysis of Southern’s other two assignments of error, we will address his

challenge to the sufficiency of the evidence first.

{¶ 35} “ ‘[S]ufficiency’ is a term of art meaning that legal standard which is applied

to determine whether the case may go to the jury or whether the evidence is legally

sufficient to support the jury verdict as a matter of law.” State v. Thompkins,

,

(1997), quoting Black’s Law Dictionary 1433 (6 Ed. 1990).

“Sufficiency” is essentially “a test of adequacy. Whether the evidence is legally sufficient

to sustain a verdict is a question of law.”

citing State v. Robinson,

,

(1955).

{¶ 36} “An 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.” State v. Marshall,

,

,

(2d Dist.), quoting State v. Jenks,

,

(1991), paragraph two of the syllabus. “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 -14-

a reasonable doubt.”

{¶ 37} Viewing the evidence in the State’s favor, we conclude that such evidence

was sufficient to allow a reasonable jury to find beyond a reasonable doubt that Southern

“knowingly torture[d], torment[ed], * * * or commit[ed] an act of cruelty against” all four

Brittany Spaniels, in violation of R.C. 959.131(B). Dr. Meyer testified that the “extremely

long” nails she found on Laffy, Sassie, and Sallie constituted “a quite painful condition”

that could have been relieved simply by trimming their nails. Her testimony thus belies

Southern’s characterization of long nails as merely “a cosmetic condition” and satisfies

the requirement that a violation of R.C. 959.131(B) cause “unnecessary or unjustifiable

pain or suffering.” See R.C. 1717.01(B).

{¶ 38} In addition, Dr. Meyer testified that both Polly and Sassie tested positive for

heartworms, a potentially fatal parasite, and that Polly also tested positive for both

whipworms and hookworms. Although Dr. Meyer stated that heartworm is “not painful,” a

reasonable jury nonetheless could deduce that the dogs suffered as a result of their

infestations, which Dr. Meyer indicated would cause “extreme” tiredness and an “inability

to be active,” and could contribute to the dogs’ low weights. Those untreated parasitic

infections would suffice to support findings that Southern violated R.C. 959.131(B). See

Dresbach,

,

.

{¶ 39} Furthermore, Dr. Meyer testified that all four adult dogs were “aggressively”

hungry and seriously underweight, while ACO France and ARC director Kumpf described

them as so emaciated that they were nearly skeletal. Although the trial court would not

permit Dr. Meyer to testify regarding whether the dogs were in pain as a result of their low -15-

weights,4 Dr. Meyer did testify that dogs experience “suffering” as a result of being in a

“constant state of hunger.” Persuasive legal authority likewise recognizes that failure to

adequately feed an animal causes suffering, see Morgan,

,

, at ¶ 54 (recognizing “starvation” to mean “suffering” caused by being “deprive[d] of

nourishment”), and is “cruel.” See Farmer, 12th Dist. Butler No. CA2013-06-097, 2014-

Ohio-3079, ¶ 19. See also Nichols, 4th Dist. Hocking No. 017AP10,

(testimony that animals were “on the verge of starvation,” “malnourished,”

“emaciated,” and looked “terrible” sufficient to prove cruelty beyond a reasonable doubt).

{¶ 40} Given the undisputed evidence that Laffy, Sassie, and Sallie all experienced

pain as a result of having overgrown nails, that Polly and Sassie were afflicted with

internal parasites, and that all four dogs suffered from extreme hunger and weight loss as

a result of being underfed, the evidence was legally sufficient to support the jury’s guilty

verdicts, and the trial court did not err by entering judgment based on those verdicts.

Southern’s second assignment of error is overruled.

Assignment of Error #3 – Manifest Weight of the Evidence

{¶ 41} Southern’s third assignment of error maintains that the jury’s guilty verdicts

were against the manifest weight of the evidence, again because the State allegedly failed

to prove that Southern’s dogs “were in pain or were suffering.”

{¶ 42} In contrast to an argument regarding the sufficiency of evidence, an

argument based on the weight of the evidence “challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

4 In sustaining defense counsel’s objection to that testimony, the trial court opined that “[y]ou can’t just look at somebody or a dog and say you’re in pain.” (Tr. Vol. 1, p. 286.) -16-

believable or persuasive.” State v. Martin, 2d Dist. Montgomery No. 27220, 2017-Ohio-

7431, ¶ 8, quoting State v. Wilson, 2d Dist. Montgomery No. 22581,

. When reviewing an argument challenging the weight of the evidence, “ ‘[t]he 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.’ ” State v. Webber,

,

, ¶ 8 (2d Dist.), quoting Thompkins,

,

.

{¶ 43} In effect, an appellate court that reverses a conviction based on the weight

of the evidence “sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of

the conflicting testimony.”

, quoting Tibbs v. Florida,

,

,

(1982). Given that the jury saw and heard the witnesses

at trial, however, “we must defer to the factfinder’s decisions whether, and to what extent,

to credit the testimony of particular witnesses.” Martin at ¶ 8, citing State v. Lawson, 2d

Dist. Montgomery No. 16288,

(Aug. 22, 1997). “The discretionary power

to grant a new trial should be exercised only in the exceptional case in which evidence

weighs heavily against the conviction.”

, quoting

.

{¶ 44} This case does not present “the exceptional case in which evidence weighs

heavily against the conviction.” See

After reviewing the entire record, we cannot

conclude that the jury “clearly lost its way” in finding Southern guilty as charged. The

verdicts illustrate that the jury found the State’s witnesses to be credible and chose to

credit their testimony suggesting that Laffy, Sassie, Sallie, and Polly experienced -17-

“unnecessary or unjustifiable pain or suffering” as a consequence of Southern’s willful

neglect. See R.C. 1717.01(B). We must accept the jury’s credibility determinations. See

Martin at ¶ 8. Southern’s third assignment of error therefore is overruled.

Assignment of Error #1 – Ineffective Assistance of Counsel

{¶ 45} Finally, Southern also contends that he was denied the effective assistance

of counsel in two respects – one, that his trial counsel failed to move for acquittal under

Crim.R. 29 despite the State’s failure to prove that Southern’s dogs “were in pain or

suffering,” and two, that his trial counsel failed to present evidence to support a defense

that Southern’s dogs were “hunting or field trial dogs,” despite alluding to that defense in

his opening statement and during cross-examination. Neither contention is well taken.

{¶ 46} A two-step process applies to evaluate allegations of ineffective assistance

of counsel:

First, the defendant must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.

State v. Calhoun,

,

(1999), quoting Strickland

v. Washington,

,

,

(1984).

{¶ 47} The defendant or petitioner has the burden of proof on the issue of

ineffective assistance of counsel, as licensed attorneys in Ohio are presumed to be -18-

competent. Id. at 289, citing Vaughn v. Maxwell,

,

(1965),

and State v. Jackson,

,

(1980). “An appellant

is not deprived of effective assistance of counsel when counsel chooses, for strategic

reasons, not to pursue every possible trial tactic.” State v. Conley,

,

, ¶ 56 (2d Dist.), citing State v. Brown,

,

(1988). “A reviewing court may not second-guess decisions of counsel which can be

considered matters of trial strategy.”

citing State v. Smith,

,

(1985)

a. Failure to move for acquittal

{¶ 48} We first note that the failure to file a timely Crim.R. 29(A) motion does not

waive an argument on appeal concerning the sufficiency of the evidence. See State v.

Jones,

,

(2001). Having determined above that

the State presented evidence sufficient to support the jury’s verdicts finding Southern

guilty of all four offenses under R.C. 959.131(B), we conclude that Southern’s trial counsel

did not perform deficiently by failing to move for acquittal on the basis of insufficient

evidence. On that issue, Southern can demonstrate neither that his trial attorney “made

errors so serious” that he “was not functioning as the ‘counsel’ guaranteed” by the Sixth

Amendment nor that Southern was prejudiced by the omission. See

.

His assignment of error on that basis is overruled.

b. Failure to pursue hunting dogs defense

{¶ 49} Southern also faults his trial attorney for failing to argue that the statute does

not apply to hunting dogs. 5 However, nothing in the record suggests that evidence

5 Although Southern’s appellate brief characterizes the statute’s non-application to -19-

existed to support such an argument in this case, let alone that Southern’s counsel

performed deficiently by not advancing that argument. Dr. Belue testified that although

Brittany Spaniels are considered “a working breed,” most are “just pets.” ACO France

testified that Southern never mentioned his dogs being used or intended for use as

hunting dogs.

{¶ 50} Even if evidence existed that Southern’s Brittany Spaniels were hunting

dogs, whether from Southern or otherwise, Southern was not deprived of a fair trial by the

omission of that evidence. R.C. 959.131(G)(3) provides that “[d]ogs being used or

intended for use for hunting or field trial purposes” are not within the statute’s prohibitions

only if those dogs “are being treated in accordance with usual and commonly accepted

practices for the care of hunting dogs.” Both France and ARC director Kumpf testified that

the heightened activity level of dogs used for hunting causes them to have even greater

nutritional needs than other dogs. ACO France also confirmed that it would be “usual and

common” for hunting dogs to be adequately fed. As the State presented undisputed

evidence that Southern’s four dogs were malnourished and thus not “being treated in

accordance with usual and commonly accepted practices for the care of hunting dogs,”

see

we cannot say that Southern’s trial counsel performed deficiently by not arguing

that these were hunting dogs.

{¶ 51} Southern’s assignment of error based upon the allegedly ineffective

assistance provided by his trial counsel is overruled.

hunting dogs as an “affirmative defense,” we need not decide whether that characterization is accurate, given the dearth of evidence that Southern’s Brittany Spaniels in fact were “hunting dogs” and the presence of evidence that they were companion animals. -20-

Conclusion

{¶ 52} The judgment of the trial court will be affirmed.

.............

DONOVAN, J. and TUCKER, J., concur.

Copies sent to:

Garrett P. Baker Steven H. Eckstein Hon. Deirdre E. Logan