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State v. Powell

Court of Appeals of Ohio, Second District, Montgomery

November 22, 2017

STATE OF OHIO Plaintiff-Appellant
HENRY POWELL Defendant-Appellee

         Criminal Appeal from Municipal Court T.C. NO. 2017-CRB-144W

          J. JEFFREY HOLLAND, Atty. Reg. No. 0040089, Holland and Muirden, Attorney for Plaintiff-Appellant.

          SCOTT A. ASHELMAN, Atty. Reg. No. 0074325, and DANIEL F. GETTY, Atty. Reg. No. 0074341, Attorneys for Defendant-Appellee.


          DONOVAN, J.

         {¶ 1} This matter is before the Court on the May 9, 2017 Notice of Appeal of the State of Ohio. The State appeals from the trial court's May 3, 2017 "Decision and Entry" sustaining Henry Powell's motion to suppress. We hereby reverse the judgment of the trial court and remand the matter for further proceedings consistent with this opinion.

         {¶ 2} Powell was charged by way of complaint on February 3, 2017, in the Municipal Court of Montgomery County, Western Division with seven counts of cruelty to animals, in violation of R.C. 959.13(A)(1), misdemeanors of the second degree. Powell's brother, Amos Powell, was also charged with seven counts of cruelty to animals in Case No. 2017 CRB 00145W.

         {¶ 3} On April 13, 2017, Powell filed his motion to suppress, and the State responded on the same day. A hearing was held on the motion on April 17, 2017, at which time the court also ruled upon Amos Powell's motion to suppress. At the hearing, Heather Concannon testified that she works for the Humane Society of Greater Dayton as a humane agent, having been so employed since September of 2015. She testified that there has been an ongoing investigation since 2015 of cruelty to animals at 6719 Dayton Liberty Road, property owned by the Powells. She stated that it has "been ongoing with horses and one pig, at that time, that I was aware of." Concannon testified that she "was constantly getting complaints, both from the public, next-door neighbors, the news, and, also, from the County Sheriff's Office regarding horses not being fed and a pig being stuck." She testified further that the "horses would get out because there was no hay or food. One horse in particular would get out; the rest would follow."

         {¶ 4} Concannon testified that on January 3, 2017, "while on my regular duties, " she "drove by and pulled into the semicircle that's on the property, checking to see if the horses had hay." She stated that there were previously three horses on the property, and that on January 3, 2017, she observed only two of them. Concannon testified that she "heard what sounded to be an animal in distress. I was looking for the third horse from the driveway that runs up the side of the property * * *." According to Concannon, she "walked up the driveway looking for the horse, thinking that it was down on the property, * * * and that's when I started hearing the squeals of pigs, obviously, and I had not seen pigs there before." Concannon stated that in her experience, the sound of a farm animal in distress requires immediate attention. She testified that "there's nobody that lives on that property, so the fact that there is not food present or no one that lives on that property to see what's going on there, it definitely is a concern." She testified that it is life-threatening for a horse to be down if the horse is injured or sick.

         {¶ 5} Concannon identified Exhibits 1, 2 and 3 as photographs taken by her of the property. She testified that the home thereon has no windows and the roof is "caved in." She stated that the area where the horses are fed is one third or one half of the way up the driveway from Dayton-Liberty Road. Concannon testified that Exhibit 3 depicted a "tract of a road, " and when asked if it was on Powell's property, she responded, "I don't know if it's on the property, but it runs up the side of the property, " and that it is the access she uses to the property. The following exchange occurred:

Q. Can you see where the pig enclosure is on this picture?
A. It's right there (indicating).
Q. * * * So it's - -
A. On the property.
Q. - - in the distance, little bit back - -
A. Correct.
Q. * * * So was the pig enclosure - - did you finally get up to see it?
A. Yes.
Q. When you got up to see it, did it appear to be within the curtilage of a - - ofan active residence?
A. An active residence? No, it's just on the property.
Q. Did it appear to be in anybody's yard ever?
A. If somebody ever lived in that white house, it would have been, but - -
Q. Well, how many feet away is it?
A. Probably * * * a football field or more.
Q. So would you say it's more or less than a hundred yards away from the house?
A. More.

         {¶ 6} Concannon identified as Exhibit 4 a photograph of "a liquid mud that all the pigs were standing in where the pigs were" on January 3, 2017. Concannon stated that the pigs could not get out of the mud, and that every time the pigs "moved, it rippled like an ocean." Concannon testified that she smelled "fecal and urine ammonia" coming from the pen, and that these substances are toxic for the pigs. Concannon testified that she "did an infrared temp" of the liquid in the pen and it was 46 degrees, and that the pigs were at risk of hypothermia.

         {¶ 7} The following exchange occurred:

Q. * * * So this view that you had of the pigs that we showed you on Plaintiffs Exhibit Number 4, was that an open view from the driveway?
A. Yes, it was.
Q. Was it concealed by any privacy fence?
A. No, sir.
Q. Was there any "No Trespassing" signs?
A. No, sir.
Q. Did you have to go through any locked gates to get there?
A. No, sir.
Q. Anybody who was walking up this lane could see it plainly?
A. Yes.

         {¶ 8} Concannon testified that after observing the pigs, she contacted the Montgomery County Sheriffs Office and that deputies arrived at the property. She stated that shortly thereafter, Henry and Amos Powell arrived, along with Henry Powell's son. She stated that she discussed with them the "condition of the pigs' pen and the fact that it needed to be remedied, along with their food and their water." She stated that she "explained to them that the conditions that the pigs were in was not acceptable, that it was definitely a health hazard; they could not be kept that way." Concannon stated that "[w]e agreed on a timetable for them to fix that. Both Mr. Powells stated that they would work on it through the week, because they also had another job. They agreed that it would be fixed in a timely manner and that they would get them food and water." According to Concannon, the Powells advised her that they had gotten rid of the third horse "because they deemed that horse to be the troublemaker."

         {¶ 9} Concannon testified that she returned to the property on January 4, 2017 to check on the pigs and horses. She stated that the pigs were in the same condition, and that it "was getting colder outside." Specifically, she stated that it was 27 degrees and that the temperature dropped to 18 degrees that night. Concannon stated that she did not see the Powells that day.

         {¶ 10} Concannon testified that she returned to the property on January 7, 2017 in the afternoon. At that time, she stated that "all of the pigs were cold. They still had inadequate food. Their water trough had not been replenished; it was absolutely frozen. And the piglets, their teeth were actually chattering and their ears were shaking." As someone trained in animal husbandry, Concannon testified that the pigs "were freezing. They were actively freezing to death." She stated that one of the pigs had a "medical condition" that was later determined to be a "scrotal hernia." According to Concannon, the pigs "were all definitely, definitely very close to - - especially the smaller ones - - losing their lives that night, absolutely." Concannon stated that she "immediately went back to my office and made arrangements to have them removed." She stated that at the time it was six degrees outside without accounting for the wind chill, and that her camera "actually froze."

         {¶ 11} When asked if she was trained to identify life-threatening issues in animals, Concannon stated that she is "recognized as an investigator by * * * Mike DeWine's office. I had just helped rewrite the Humane agent training as well as the Officers Training Manual for OPOTA[1] that just went into effect for the new training standards." Concannon stated that she never placed the Powells under arrest or placed them in custody, and that ...

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