Court of Appeals of Ohio, Second District, Montgomery
Appeal from Municipal Court T.C. NO. 2017-CRB-144W
JEFFREY HOLLAND, Atty. Reg. No. 0040089, Holland and Muirden,
Attorney for Plaintiff-Appellant.
A. ASHELMAN, Atty. Reg. No. 0074325, and DANIEL F. GETTY,
Atty. Reg. No. 0074341, Attorneys for Defendant-Appellee.
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
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
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 - -
Q. * * * So was the pig enclosure - - did you finally get up
to see it?
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?
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
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?
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
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
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 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 ...