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State v. Agee

Court of Appeals of Ohio, Tenth District

August 1, 2019

State of Ohio, Plaintiff-Appellee,
v.
Shawn D. Agee, Jr., Defendant-Appellant.

          APPEAL from the Franklin County Municipal Court, M.C. No. 18ERB-72072 Environmental Division

         On brief:

          Zach Klein, City Attorney, Bill Hedrick, Orly Ahroni, and Isaac J. Rinsky, for appellee.

          Evan N. Wagner, for appellant.

         Argued:

          Isaac J. Rinsky.

          Evan N. Wagner.

          DECISION

          NELSON, J.

         {¶ 1} Responding on June 26, 2018 to a complaint regarding a dog tangled in its tether, a Humane Society agent in Franklin County discovered three German Shepherds that belonged to Shawn Agee, Jr. and that the agent concluded were suffering from maltreatment; in her account, two of the dogs were tangled, with one's tether wrapped so tightly that its leg had started to swell, and all three had been restrained without access to food, water, or shelter. Aug. 15-16, 2018 Transcript of Proceedings at 15-16. Two of the dogs, having been bitten about the ears by flies, were suffering from "fly strike"; these were Bear and Princess. Id. at 18-19. The state charged Mr. Agee with 12 criminal misdemeanors relating to the treatment of the three companion animals. See id. at 97.

         {¶ 2} After a bench trial, the municipal court judge acquitted him of ten of those counts because Mr. Agee's unrebutted testimony had been that he was out of town for the weekend and had left the dogs in the care of his mother: with regard to the injured leg, for example, the judge said, "I can't find him guilty of that if he wasn't around this weekend," and "the same goes" for certain other counts, even though "I don't think the dog had adequate water, shelter or food." Id. at 99. Thus, while "it was clear these dogs were kept in a condition they shouldn't have been kept in," the judge found that he could not "hold [Mr. Agee] responsible for something it seems like his mother might have been the caretaker of for the weekend." Id. at 100.

         {¶ 3} By contrast, the judge did find Mr. Agee guilty of two second-degree misdemeanors (Counts 1 and 3) relating to the fly strikes involving Princess and Bear respectively, because "[t]hose were long time, very painful injuries not being treated" over a sustained period for which Mr. Agee had been the dogs' confiner, custodian, or caretaker: "those were not injuries that were just caused over the weekend" of Mr. Agee's absence. Id. (reciting findings of guilt under R.C. 959.131(D)(1)). The judge sentenced Mr. Agee to community control, with a fine of $100, a suspended jail sentence of 180 days, the surrender of dogs Diamond and Princess, the proviso that Bear be provided with regular vet appointments, and various other conditions. Aug. 24, 2018 Sentencing Entry.

         {¶ 4} Mr. Agee appeals, specifying two assignments of error: he submits first that "[t]he trial court erred as a matter of law by finding that the Appellant violated R.C. 959.131(D)(1)," and second that his convictions "were not supported by legally sufficient evidence." Appellant's Brief at 4.

         {¶ 5} Under his first assignment of error, Mr. Agee engages in a prolonged statutory exegesis to argue that "he does not qualify as the type or class of persons subject to criminal liability merely as an owner." Id. at 14 (also stating that "the trial court found the Appellant was NOT the 'custodian or caretaker' of the subject-matter companion animals with respect to all other counts despite the fact that all counts arose from the same transaction or occurrence"), 11-15. But the trial court did not impose liability on Mr. Agee due to his status as the dogs' owner, but rather due to his having served as the two dogs' confiner, custodian, or caretaker when they developed their fly strike conditions and should have been but were not appropriately treated. See, e.g., Tr. at 97 ("I think although defendant was out of town over this particular weekend, I think reason and common sense shows this was a long term condition and something that was just causing substantial pain to those two animals").

         {¶ 6} Mr. Agee's attempt to manufacture a dispute over statutory construction fails, that is, because the trial court did not read the statutory subsection differently than Mr. Agee does with regard to whom it applies: the trial court did not impose any ...


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