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City of Cleveland v. Turner

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 22, 2019

CITY OF CLEVELAND, Plaintiff-Appellee,
v.
SCOTT R. TURNER, Defendant-Appellant.

          Criminal Appeal from the Cleveland Municipal Court Case No. 17 CRB 020763

         JUDGMENT: AFFIRMED IN PART, VACATED IN PART, AND REMANDED

          Barbara A. Langhenry, City of Cleveland Law Director, and J. Jeffrey Holland and Danamarie K. Pannella, Assistant Prosecuting Attorneys, for appellee.

          Mark A. Stanton, Cuyahoga County Public Defender, and Cullen Sweeney, Assistant Public Defender, for appellant.

         ON RECONSIDERATION [1]

          JOURNAL ENTRY AND OPINION

          MICHELLE J. SHEEHAN, JUDGE

         {¶ 1} Defendant-appellant Scott R. Turner ("Turner") appeals from his conviction and sentence imposed by the Cleveland Municipal Court. Following a bench trial, Turner was found guilty of one count of sexual conduct with an animal (bestiality) in violation of RC. 959.21(B). The court sentenced Turner to 90 days in jail, with credit for 17 days served, and a $750 fine. The court suspended the fine and 73 days in jail, pending completion of five years of inactive community control. Conditions of community control included (1) no contact with animals; and (2) random home inspections conducted by the Animal Protective League ("APL"). For the reasons that follow, we affirm the conviction. However, we vacate the sentence in part and remand for further proceedings consistent with this opinion.

         Procedural History and Substantive Facts

         {¶ 2} Scott Turner was a parolee under the supervision of Jason Stasenko, parole supervisor for the sex offender unit of the adult parole authority. On May 25, 2017, Stasenko received from Hamilton County prison officials a sexually explicit letter detailing a sexual act with an animal. The letter that was intercepted by prison officials was written by Turner and mailed to Turner's incarcerated boyfriend, Robert Mayberry, who was in prison on charges relating to sexual conduct against minors. The next day, Stasenko arrested Turner for violation of his parole. During an investigation, officers discovered additional letters at Turner's home. On September 21, 2017, the city charged Turner with bestiality in violation of R.C. 959.21(B).

         {¶ 3} Defendant filed a motion in limine to prohibit the introduction of his extrajudicial statement (made through the initial letter to his boyfriend) absent proof of the offense. The trial court denied Turner's motion, and the matter proceeded to a bench trial.

         {¶ 4} The city presented the testimony of the parole supervisor, Stasenko, and the owner of the animal victim, Valerie Lightner. The city also admitted into evidence three letters written by Turner.

         {¶ 5} Stasenko identified all three letters admitted at trial as letters written by Turner. He testified that the city's exhibit No. 1 was the letter the Hamilton County parole authority intercepted and forwarded to Stasenko, and the other two letters, exhibit Nos. 2 and 3, were letters that were confiscated at Turner's home at the time of the arrest.

         Exhibit No. 1 Dated 5-13-17 and 5-15-17

         {¶ 6} Exhibit No. 1 is a 20-page letter Turner wrote to his boyfriend, Mayberry. It is dated "5-13-17," with a noted time of "7:17 p.m." The letter contained sexually explicit language with graphic descriptions of sexual acts involving Turner, Mayberry, and a dog:

Hey baby girl [addressing Mayberry], I'm sitting here just thinking of you and wondering what you may be doing. * * * Jovan (my roommate in case you forgot) brought his girl dog over for a bit today and him and his girl went to eat so I ate to[o] and I enjoyed it to[o]. I never knew it could taste so f***ing good baby. Damn I want to do that again but with you f***ing me while I do. Boys are next at the first opportunity I get if I do. It was a 2-year-old boxer and something else but not sure what.

         {¶ 7} On page 15 in that same letter, which portion is dated "5-15-17" and noted with a time of "6:45 p.m.," Turner once again mentioned an animal:

I love when you give details and talk super dirty to[o] describing the sex you want with our little friends with 4 legs and also how we will do them together my love.

Exhibit No. 2 Dated 5-6-17

         {¶ 8} Exhibit No. 2 is a letter from Turner to Mayberry that predates exhibit No. 1 and is dated "5-6-17, 2:00 p.m. - 8:30 p.m." In this sexually explicit letter, Turner stated his intention to acquire an animal:

I'll be sure to make it worth your while for sure. * * * I'm looking into getting a 4/legged friend still but it's hard to find the right one to get and then there's the money needed to get it also which I don't have either yet. I have to take care of you baby girl * * *. Exhibit No. 3, Undated

         {¶ 9} Exhibit No. 3, an undated sexually explicit letter, stated:

One other thing babe. I don't want to share you with another guy. Kay. I need to know if you still want to do that okay. I'll share you with a 4/legged friend though. I'm really looking forward to experiencing that baby girl. I'm sure it will be exciting to have your d*** in my mouth while I'm being pounded out by a friend and to watch you get pounded to with my d*** in your mouth * * * also videoing the sounds * * * and the f***ing between us so I can watch them over and over, babe. You can too okay. * * * How would you like to have a young guy (teen) video us together? That is if you want to do any videoing at all.

         {¶ 10} Stasenko testified that he spoke with Turner about exhibit No. 1. Turner admitted writing the letter but denied that any sex act with an animal occurred. According to Stasenko, Turner explained that he only wrote the information about the dog to distract his boyfriend from being sexually interested in boys. Stasenko did not find this explanation credible, and in fact, he stated that Turner's explanation was inconsistent with Turner's explicit references in the letters to engaging children in sexual conduct. Stasenko also testified that he was troubled by Turner's nickname for his penis, referring to it as "his son."

         Valerie Lightner, Dog Owner

         {¶ 11} Valerie Lightner testified concerning her dog, a two-year-old female possible pit bull boxer mix named Athena. She owned the dog since it was nine weeks old. Lightner's boyfriend, Jovan Johnson, rented a room from the defendant. Lightner testified that on May 13, 2017, she drove to the defendant's house, with her dog, to pick up her boyfriend. She stated that it was her boyfriend's birthday and she was picking him up to buy him a birthday present, a skateboard. She was going to leave Athena in her boyfriend's bedroom for a couple of hours while they went out to purchase the skateboard. They would then pick the dog up and go to the skate park. Lightner stated that Turner offered to watch Athena while they were gone, so she agreed.

         {¶ 12} Lightner testified that when they returned after about two hours to pick up Athena, the dog ran straight to Lightner and her boyfriend and cowered by them, which was very unusual. Lightner stated that Athena is usually "excited, jumping, happy to see you, happy that everyone is together [because] she really likes people so she likes being together with them." But on this afternoon, according to Lightner, her dog seemed scared. Lightner testified that Turner told her the dog "just laid down with him in bed for the duration of the time that we were gone."

         {¶ 13} Lightner and her boyfriend put Athena in the car and drove to the skate park as planned. However, while at the park, Athena was acting unusual and again cowering behind Lightner, was skittish, and was barking. Because of the dog's unusual behavior, Lightner and her boyfriend brought Athena home after only 20 minutes at the park. They later canceled dinner reservations because the dog continued acting strangely, whining and licking her genitals excessively. Athena continued to "aggressively" lick her genitals and remained skittish around noises for several days. At the time of trial, she remained uncomfortable with anyone near her backside. In fact, as Lightner testified, Athena now required special care during a veterinarian examination, because she "whimpers when someone is trying to insert [a rectal thermometer] and will try to scoot away from them." Lightner testified that all of this behavior was highly unusual of Athena, and prior to the incident in May, Athena "had no issues with boundaries with people" and never had a problem with a rectal thermometer being used on her.

         {¶ 14} Finally, Lightner testified that she did not seek treatment for Athena after the incident because "[i]t didn't seem like it was a life or death situation at the moment" and the dog's behavior began to improve after a few days. She also stated that the costs for sedating Athena for an examination was part of the reason she did not seek treatment. Lightner first became aware of a possible issue with the defendant when Stasenko contacted her. Lightner said she never would have suspected that something like this would have happened.

         {¶ 15} At the conclusion of the evidence, defense counsel renewed his objection to the admission of the exhibits, arguing the state presented insufficient independent evidence of corpus delicti. Defense counsel also moved the court for a Crim.R. 29 dismissal. The court denied both motions and found Turner guilty of the offense charged.

         {¶ 16} Turner appealed his conviction and sentence, assigning four errors for our review, which we will discuss out of order for ease of discussion:

I. There was insufficient evidence to permit a reasonable trier of fact to find beyond a reasonable doubt that Scott Turner violated R.C. 959.21(B).
II. Scott Turner's conviction is against the manifest weight of the evidence.
III. The trial court erred and violated Scott Turner's due process rights by admitting Turner's extrajudicial statements into evidence without the prosecution having first established the "corpus delicti" of the crime.
IV. The trial court erred and violated Scott Turner's due process rights by granting a private non-profit entity the right to conduct random, suspicionless searches of Turner's private residence for five years.

         Corpus Delicti

         {¶ 17} In his third assignment of error, Turner contends that the court erred in admitting his extrajudicial statements without independent evidence of a crime. In support, he argues that the city failed to establish the ...


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