from the Franklin County Municipal Court, M.C. No.
18ERB-72072 Environmental Division
Klein, City Attorney, Bill Hedrick, Orly Ahroni, and Isaac J.
Rinsky, for appellee.
N. Wagner, for appellant.
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
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
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 ...