[Cite as State v. Hill,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, APPEAL NOS. C-190638 : C-190639 Plaintiff-Appellee, C-190640 C-190641 vs. : TRIAL NOS. C-19CRB-10074A C-19CRB-10074B RICSHAWN HILL, C-19CRB-10074C C-19CRB-10074D Defendant-Appellant. :

: O P I N I O N.

Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: February 3, 2021

Andrew W. Garth, Interim City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Keith C. Forman, Assistant Prosecuting Attorney for Plaintiff- Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, Judge.

{¶1} Defendant-appellant Ricshawn Hill appeals his convictions, following

a bench trial, for four counts of cruelty against companion animals. In four

assignments of error, Hill challenges the sufficiency and the weight of the evidence

supporting his convictions, contests the propriety of an in-court identification, and

argues that the trial court erred in admitting both hearsay and improper other-acts

evidence.

{¶2} Following our review of the record, we find that the trial court

erroneously admitted a deputy dog warden’s testimony concerning statements made

to him from persons at the scene about who owned the dogs, because that testimony

was inadmissible hearsay. But because Hill admitted both to ownership of the four

animals that were the subject of his convictions and to his inability to care for them,

we find that the trial court’s admission of the hearsay statements was harmless error.

{¶3} We further find that the trial court’s admission of video evidence

concerning the conditions of two animals that were not the subject of the charges

was erroneous because the evidence was irrelevant and was improper other-acts

evidence under Evid.R. 404(B). But because the record contained ample evidence

regarding the conditions of the four dogs that were the subject of Hill’s convictions,

specifically that those animals had been tortured, tormented, or had an act of cruelty

committed against them, and because Hill admitted to ownership of the dogs and to

his inability to care for them, we find that the admission of the improper other-acts

evidence was harmless error and we affirm the trial court’s judgments.

2 OHIO FIRST DISTRICT COURT OF APPEALS

Factual Background

{¶4} Hill was charged with four counts of cruelty against companion

animals in violation of R.C. 959.131(D)(1).

{¶5} At trial, Deputy Brandon Henry, a dog warden with the Society for the

Prevention of Cruelty to Animals (“SPCA”), testified that he responded to an

anonymous tip that the SPCA received regarding animals in a garage at 1873 Herron

Avenue. Deputy Henry spoke to the residents of the home, and testified over

objection that the residents told him the dogs were in the garage, denied ownership

of the dogs, identified themselves as “uncles,” and stated that “he hadn’t been by to

take care of them.”

{¶6} Deputy Henry found four dogs in the garage in “filth and squalor.” He

testified that the garage lacked ventilation and that the floor was covered in feces

that he estimated had been there for multiple weeks. Deputy Henry described the

dogs as energetic and kind, but noted that they were underweight and malnourished.

There were no windows or light in the garage, and it contained no food or water for

the animals. According to Deputy Henry, the odor coming from the garage was

indescribable. In addition to these four dogs, Deputy Henry testified that two full-

grown dogs were found on the back porch in a metal crate that was suited for one

dog. The deputies seized the four dogs found in the garage, but not the dogs found

on the porch.

{¶7} A sergeant who responded with Deputy Henry recorded a video of the

conditions in the garage. Video of the two dogs found on the back porch was also

taken and played for the court over objection.

3 OHIO FIRST DISTRICT COURT OF APPEALS

{¶8} A neighbor provided a telephone with Hill’s number programmed in

that Deputy Henry used to call Hill. Deputy Henry testified that during their

telephone conversation, Hill admitted to ownership of the four dogs found in the

garage. Hill told Deputy Henry that the dogs were his, that he did not want them to

be seized, and that he had been unable to take care of the dogs because he had been

in a legal battle and “locked up.” Over objection, Deputy Henry identified Hill in

court as the person to whom he had spoken on the phone. Deputy Henry testified

that he had never met Hill in person, but the person whom he spoke to on the

telephone provided a social security number. Deputy Henry verified that the social

security number belonged to Ricshawn Hill. He also obtained a photograph of

Ricshawn Hill when verifying the information, and testified that the photograph was

Hill, the defendant in court.

{¶9} The trial court found Hill guilty of all four counts of cruelty to

companion animals and imposed a sentence of 90 days in jail for each offense, a

$200 fine, and court costs. The sentences for the offenses were ordered to be served

concurrently.

Sufficiency and Weight

{¶10} In his first assignment of error, Hill challenges the sufficiency and

weight of the evidence supporting his convictions.

{¶11} In a challenge to the sufficiency of the evidence, the question is

whether after reviewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found all the essential elements of the crime

beyond a reasonable doubt. State v. Jenks,

,

(1991), paragraph two of the syllabus. In contrast, when considering a challenge to

4 OHIO FIRST DISTRICT COURT OF APPEALS

the weight of the evidence, the court must examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of the witnesses, and

determine whether, in resolving conflicts in the evidence, the court clearly lost its

way and created a manifest miscarriage of justice. State v. Thompkins,

,

(1997).

{¶12} Hill was convicted of four counts of cruelty to companion animals in

violation of R.C. 959.131(D)(1), which provides that “[n]o person who confines or

who is the custodian or caretaker of a companion animal shall negligently * * *

[t]orture, torment, or commit an act of cruelty against the companion animal.” Hill

specifically argues that the state failed to establish that he was the custodian or

caretaker of the animals and that an act of cruelty was committed against them.

{¶13} We first consider Hill’s argument that the state failed to establish that

he was the custodian or caretaker of the animals. Hill admitted in a telephone call

with Deputy Henry that the four dogs found in the garage belonged to him. Hill,

however, contends that the state failed to establish his identity as the person with

whom Deputy Henry spoke on the phone. Deputy Henry, using a telephone from a

neighbor that had Hill’s telephone number programmed in, called Hill. The person

who answered the deputy’s call identified himself as Ricshawn Hill, provided a social

security number, and admitted to ownership of the dogs and his inability to care for

them. Despite having the opportunity to do so, the person to whom Deputy Henry

spoke never once denied ownership of the animals. Deputy Henry then looked up

Hill in the system and confirmed that the social security number provided during the

telephone call belonged to Ricshawn Hill. Viewed in the light most favorable to the

prosecution, the deputy’s verification of Hill’s identifying information coupled with

5 OHIO FIRST DISTRICT COURT OF APPEALS

Hill’s admission to ownership of the animals was sufficient to establish that he was

the custodian or caretaker of the animals. See Jenks at paragraph two of the

syllabus.

{¶14} We next consider Hill’s argument that the state failed to establish that

acts of cruelty had been committed against the animals. R.C. 959.131(A)(2) provides

that the definitions of cruelty, torment, and torture, as used in the statute, have the

same meanings as the definitions set forth in R.C. 1717.01. R.C. 1717.01(B) provides

that “ ‘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.”

{¶15} Deputy Henry testified that the dogs were found in filth and squalor, in

a garage with a floor that was covered in feces. The dogs were kept in a garage that

had no ventilation or light and contained no food or water. They were also visibly

underweight and malnourished. This testimony was sufficient to establish that an

act of cruelty, torment, or torture had been committed against the dogs. See Jenks at

paragraph two of the syllabus.

{¶16} We further hold that Hill’s convictions for cruelty against companion

animals were not against the manifest weight of the evidence. While Hill was not a

resident of the home where the animals were found, he admitted to ownership of

dogs and to his inability to care for them. This was not the rare case in which the

trier of fact lost its way and committed such a manifest miscarriage of justice in

finding Hill guilty that his convictions must be reversed. See Thompkins,

,

.

{¶17} The first assignment of error is overruled.

6 OHIO FIRST DISTRICT COURT OF APPEALS

In-Court Identification

{¶18} In his second assignment of error, Hill argues that the trial court erred

in admitting Deputy Henry’s in-court identification of Hill.

{¶19} At trial, Deputy Henry identified Hill as the person to whom he had

spoken on the phone and who had admitted to ownership of the four dogs found in

the garage. Defense counsel objected to this identification on the grounds that

Deputy Henry had never seen Hill before the trial. The trial court overruled Hill’s

objection.

{¶20} Deputy Henry testified that he called Hill on a neighbor’s telephone

that was programmed with Hill’s number. The person to whom Deputy Henry spoke

on the phone identified himself as Ricshawn Hill, immediately admitted to

ownership of the dogs, and provided a social security number that Deputy Henry

later verified belonged to Ricshawn Hill. Deputy Henry also obtained a photograph

of Ricshawn Hill when verifying the information, and testified that the photograph

was Hill, the defendant in court. We hold that the in-court identification of Hill was

reliable and that the trial court did not err in admitting it. See State v. Shelton, 1st

Dist. Hamilton No. C-170547,

.

{¶21} The second assignment of error is overruled.

Hearsay

{¶22} In his third assignment of error, Hill argues that the trial court erred in

admitting hearsay evidence, specifically Deputy Henry’s testimony regarding

statements made by residents of the home where the dogs were found. We review a

trial court’s admission of hearsay statements for an abuse of discretion. State v.

Smith,

,

, ¶ 15 (1st Dist.).

7 OHIO FIRST DISTRICT COURT OF APPEALS

{¶23} Deputy Henry testified that the residents of the home told him that the

dogs were in the garage, denied ownership of the dogs, and stated that “he hadn’t

been by to take care of them.” Defense counsel objected to this testimony, arguing

that it was hearsay. The state contended that the statements were not being offered

for the truth of the matter, but rather to show the state of mind of the deputy and

explain his conduct. The trial court agreed with the state and allowed the testimony

because it explained “why he did what he did, the effect on the listener.”

{¶24} “[E]xtrajudicial statements made by an out-of-court declarant are

properly admissible to explain the actions of a witness to whom the statement was

directed.” State v. Thomas,

,

(1980). So

when testimony is offered to explain the subsequent investigative activities of police

officers and not to prove the truth of the matter asserted, it may be admissible as

nonhearsay in certain circumstances.

“[I]n order for testimony offered to explain

police conduct to be admissible as nonhearsay, the conduct to be explained should be

relevant, equivocal, and contemporaneous with the statements; the probative value

of statements must not be substantially outweighed by the danger of unfair

prejudice; and the statements cannot connect the accused with the crime charged.”

State v. Ricks,

,

,

; State v.

Jones, 1st Dist. Hamilton No. C-130359,

.

{¶25} Here, the statements were not admissible as nonhearsay because they

connected Hill with the offenses. The residents denied ownership of the dogs and

told Deputy Henry that “he hadn’t been by to take care of them.” This directly

implicated Hill as the custodian or caretaker of the four dogs in the garage. We

8 OHIO FIRST DISTRICT COURT OF APPEALS

therefore hold that the trial court abused its discretion in allowing Deputy Henry to

testify as to residents’ statements.

{¶26} Having determined that these statements were admitted improperly,

we must determine what effect, if any, their admission had on the outcome. Because

Hill objected to these statements, we review for harmless error. State v. Jones,

,

,

; State v. Hayes, 1st Dist.

Hamilton No. C-190461,

. Under this standard, the state has

the burden of establishing that the error did not affect the defendant’s substantial

rights.

. A defendant’s substantial rights are affected where the error is

prejudicial and affected the outcome of the trial. Id.; Hayes at ¶ 51.

{¶27} Following our review of the record, we find that admission of the

hearsay statements was harmless error. Absent the residents’ statements, ownership

of the dogs was clearly established; Hill admitted that the four dogs in the garage

belonged to him and that he had been unable to take care of them. We cannot say

that the admission of the hearsay statements affected the outcome of the trial. The

third assignment of error is overruled.

Other-Acts Evidence

{¶28} In his fourth assignment of error, Hill argues that the trial court erred

in permitting other-acts evidence to be introduced in violation of Evid.R. 404(B).

“The admissibility of other-acts evidence pursuant to Evid.R. 404(B) is a question of

law.” State v. Hartman, Slip Opinion No.

.

{¶29} Hill specifically argues that it was error to admit the video recording of

the two dogs found on the back porch. Defense counsel objected to this portion of

the video being played for the court, arguing that it was not relevant because Hill was

9 OHIO FIRST DISTRICT COURT OF APPEALS

not charged with any offense relating to these particular dogs. The state argued that

the recording was relevant to the totality of the circumstances concerning the

conditions in which the dogs were kept. The trial court overruled the objection,

stating that the particular portion of the video was “relevant to the totality of the

circumstances.”

{¶30} Under Evid.R. 401, relevant evidence is that which has “any tendency

to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.”

Evidence concerning the conditions of the two dogs found on the back porch was not

relevant to determining whether Hill committed the offenses of cruelty to companion

animals with respect to the four dogs found in the garage. Hill did not reside at the

home where these two animals were found, and the record contains no testimony or

evidence that Hill was the custodian or caretaker of them. Further, Hill was not

charged with any offense pertaining to these two dogs. The video evidence

concerning the condition of the two dogs found on the back porch was irrelevant and

inadmissible.

{¶31} We further find that, even if this evidence had some probative value, it

was inadmissible under Evid.R. 404(B). Evid.R. 404(B) provides that “[e]vidence of

other crimes, wrongs, 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.” Under Evid.R. 404(B),

other-acts evidence is only admissible when it is probative of a nonpropensity-based

issue. Hartman at ¶ 22.

10 OHIO FIRST DISTRICT COURT OF APPEALS

{¶32} When deciding whether evidence is admissible for a nonpropensity

purpose, a threshold question as to whether the evidence is relevant must be

answered. Id. at ¶ 24. And “the inquiry is not whether the other-acts evidence is

relevant to the ultimate determination of guilt. Rather, the court must evaluate

whether the evidence is relevant to the particular purpose for which it is offered.”

Id. at ¶ 26.

{¶33} The state contends that the video evidence concerning the conditions

of the two dogs found on the back porch was relevant to determining Hill’s

knowledge and his lack of mistake or accident. We disagree. As discussed above, the

record contains no evidence linking Hill to these two dogs. Absent any evidence that

Hill was the custodian or caretaker of these animals, evidence concerning their

condition was not relevant to establishing Hill’s knowledge of the condition of the

four dogs found in the garage or that Hill’s failure to care for those dogs was not a

mistake or accident. We consequently find that the video evidence depicting the

conditions of the dogs on the back porch was inadmissible under Evid.R. 404(B).

{¶34} Although the trial court erred in admitting this evidence, we find that

any resulting error was harmless. Jones,

,

,

. The record contained ample evidence that the dogs were

malnourished and were kept in filthy conditions, specifically in a garage that had a

floor covered in feces, lacked ventilation and windows, and did not contain food or

water for the animals. The record also contained evidence that Hill admitted to

ownership of the dogs and to his inability to care for them. We cannot find that Hill

would have been acquitted but for the admission of this video evidence.

11 OHIO FIRST DISTRICT COURT OF APPEALS

{¶35} Hill’s fourth assignment of error is overruled. The judgments of the

trial court are, accordingly, affirmed.

Judgments affirmed.

ZAYAS, P.J., and BERGERON, J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.

12