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State v. Glowney

Court of Appeals of Ohio, Second District, Montgomery

August 23, 2019

STATE OF OHIO Plaintiff-Appellee

          Criminal Appeal from Municipal Court Nos. 2016-CRB-2409 & 2016-CRB-2410

          NOLAN C. THOMAS, Atty. Reg. No. 0078255, Attorney for Plaintiff-Appellee.

          PAUL R. LEONARD, Atty. Reg. No. 0031006, 1670 Penbrooke Trail, Dayton, Attorney for Defendants-Appellants.


          FROELICH, J.

         {¶ 1} After the trial court overruled their motion to suppress, Joshua Glowney and Lindsey Glowney pled no contest in the Kettering Municipal Court to one count each of cruelty against companion animal in violation of former R.C. 959.131(C)(2).[1] In exchange for the pleas, two additional counts of animal cruelty were dismissed for each defendant. The trial court sentenced them to seven days in jail, all of which was suspended, plus a $100 fine, with one year of unsupervised probation. The court stayed their sentences pending appeal.[2] Upon the Glowneys' motion, we have consolidated their cases for appellate review.[3] For the following reasons, the trial court's judgments will be affirmed.

         I. Facts and Procedural History

         {¶ 2} The State's evidence at the suppression hearing established the following facts.

         {¶ 3} Shortly before 3:00 p.m. on October 10, 2016, which was Columbus Day, Deborah Smith drove along Cushing Avenue in Kettering as she returned to her home a short distance away on a neighboring street. As she was driving in the 600 block, she noticed the occupants of an oncoming minivan looking toward a particular house. Smith looked as well, and she saw an "extremely thin" brown dog (later identified as the Glowneys' male dog, Dyson) that appeared to be undernourished; the dog was not leashed or confined in a fenced yard. Smith testified that she became "very upset, in shock," because she had never seen a dog that looked like that, and she pulled over to see if anyone knew who owned the dog. The driver of the minivan, who had also pulled over, did not know who owned the dog, so Smith called the Kettering police. While waiting for an officer to respond, Smith saw the dog run into the backyard of 640 Cushing and then into the backyard of 636 Cushing, the Glowneys' residence, which had a partially-opened gate. Smith took mesh netting from her vehicle and loosely tied the gate shut, not knowing if the dog was in its own yard.

         {¶ 4} Animal Control Officer Shelly Davis was dispatched to Cushing Avenue, and was greeted by two women, one of whom was Smith. The women told Davis that the dog had gone into the backyard, and they pointed to the house next to the Glowneys' yard. Smith reported to Davis that the dog had been in the street, but had gone into the backyard of 640 Cushing to get to 636 Cushing.

         {¶ 5} Officer Davis, Smith, and the other woman went into the backyard of 640 Cushing and saw the dog on the back deck of 636 Cushing, apparently trying to get in the back door. Davis described the dog as nervous, and testified that it was barking at them. Davis went into the backyard of 636 Cushing to secure the dog. She put a leash on Dyson, took him to her van, and gave him food and water.

         {¶ 6} On cross-examination, Officer Davis was asked about the need for a search warrant before entering the Glowneys' property to seize the dog. Davis testified that she needed a warrant to remove a confined animal, but not an animal at large. Davis did not believe that Dyson had been confined, because he was not on a secure tether or in a securely fenced area. Davis testified that the gate to the backyard had been open.

         {¶ 7} Officer Davis noticed the dog's poor body condition. She testified that he had no muscle mass, that his skull was sunken in where there should be muscle mass, that his shoulder blades, spine, and hip bones were protruding, his abdomen seemed distended, his spine was visible down through his tail, and he had a lot of hair loss on his legs. The dog also was walking on his toenails. Officer Davis asked another officer to come and take photos of the dog. Davis testified, however, that she was, at this point, just investigating a loose dog complaint. She stated that she did not assume that the dog was a victim of cruelty or neglect, because he could have had a medical condition.

         {¶ 8} Dyson had a collar with an old license, [4] but Davis was unable to confirm his ownership on the Montgomery County Auditor's website. Smith and the other woman did not know who owned the dog; both told Davis that they had not seen the dog before. At that point, Davis still did not know if Dyson belonged at 636 Cushing, and she testified that some dogs will try to get into any house to be safe. Davis knocked on the door at 636 Cushing, but received no response.

         {¶ 9} Officer Davis left a written notice on the Glowneys' door to contact her. The notice was a "Kettering Police Department Warning Notice" that stated that the police had "received a complaint about your pet." The box for "Dogs or other animals running at large (Ordinance #618.03)" was checked. Handwritten at the bottom was "*Condition of dog. Please call within 24 hours." Officer Davis included her cell phone number. The notice was dated October 10, 2016 with a time of 3:25 p.m.

         {¶ 10} Due to Dyson's apparent poor health and the fact that the Montgomery County Animal Resource Center (ARC) was closed for the holiday, Davis called Dr. Elizabeth Maimon of Hills and Dales Veterinary Clinic, where Davis had previously worked, and asked Dr. Maimon if she would look at Dyson. Dr. Maimon agreed. Dr. Maimon weighed Dyson, took his temperature, trimmed his nails, gave him subcutaneous fluids, and provided him highly-digestible food. While Dyson was at Dr. Maimon's office, the Kettering dispatcher was able to contact ARC personnel, who agreed to meet Davis at ARC. Davis then took Dyson to ARC, where he was evaluated and held.

         {¶ 11} Mr. Glowney, who was out-of-town, left a message for Officer Davis that evening. Officer Davis spoke with Mrs. Glowney during the following week. Mrs. Glowney confirmed that Dyson was her dog, and she provided information about Dyson's veterinarian, license, and rabies vaccination. Mrs. Glowney was not certain when Dyson last had been seen by a veterinarian, but she told Officer Davis that he was seen at Bigger Road Veterinary Clinic. Officer Davis told the Glowneys that Dyson was under veterinary care at ARC, and she (Davis) obtained Dyson's veterinary records from Bigger Road Veterinary Clinic. Officer Davis stated that she waited to hear from ARC's veterinarian to determine whether to charge for cruelty or neglect.

         {¶ 12} On October 11, 2016, Dr. Kelly Meyer, veterinary supervisor at ARC, received text communications from an ARC veterinary technician, who had triaged Dyson. Dr. Meyer learned that an extremely malnourished dog was admitted from Kettering animal control, and that Dyson needed initial supportive care. Dr. Meyer received photos of Dyson from the technician. Dr. Meyer stated that Dyson was scanned for a microchip, but no microchip was located.

         {¶ 13} Dr. Meyer examined Dyson the following day. She stated that she used two scales (Tufts University Scale and Purina Scale) to determine Dyson's body condition. Under the Tufts scale (1 to 5), Dyson was a one, which was extremely emaciated. Under the Purina scale (1=emaciated, 5=perfect, 9=extremely obese), Dyson was a "one down to zero." Dr. Meyer determined that Dyson was extremely malnourished and had cachexia, meaning his body was feeding on its own proteins. She started Dyson on multiple small meals and fluids.

         {¶ 14} Dyson gained one pound the first day. Over the next couple of days, his weight gain slowed and stopped. Dyson was eating normal amounts of food at multiple daily feedings, but was not thriving and gaining weight as she would have expected. Dr. Meyer received Dyson's medical records on October 13, 2016. She did not communicate with the Glowneys, because Officer Davis was the presenting officer.

         {¶ 15} Dyson's condition deteriorated on October 14. On the morning of October 15, Dr. Meyer learned that Dyson had not eaten overnight, apparently was not drinking water, and had a painful mass on his abdomen. Dr. Meyer expressed concern to Robert Sexton, ARC's animal care and control officer supervisor, that Dyson was declining quickly and further diagnostic work may only prolong his suffering. Dr. Meyer testified that Dyson was not showing the kind of progress that she would expect of a dog that was simply not being fed, and she believed there was an underlying disease process that they were beginning to investigate, but his suffering was too great. Dr. Meyer stated that she took into account the stressfulness of the situation for Dyson. She determined that euthanasia was necessary.

         {¶ 16} That day, Dyson was euthanized. A necropsy showed that Dyson had suffered from liver disease, likely liver cancer, which caused malabsorption of nutrients and an inability to gain weight. The Glowneys learned of Dyson's death on October 20.

         {¶ 17} Lindsey Glowney testified at the suppression hearing on her and her husband's behalf. She stated that they had adopted Dyson as a puppy and have another cat and dog. She testified that Dyson's collar had a license, and he was microchipped.

         {¶ 18} On October 10, 2016, Mr. Glowney was out of town for work, and Mrs. Glowney worked from 8:00 a.m. to 5:00 p.m. Dyson had eaten his breakfast that morning. Mrs. Glowney went home for lunch and let the dogs out. Their other dog, Poncho, wanted to come back in, but Dyson wanted to stay outside. Mrs. Glowney left Dyson outside when she returned to work, leaving him fresh water. When she returned home, there was a note to call about the condition of the dog. She called her husband, who called Officer Davis's number.

         {¶ 19} Mrs. Glowney testified that she made numerous attempts to contact ARC by telephone and email during the next week. On October 11, Mrs. Glowney was driving to ARC when she spoke with Officer Davis, who told her that ARC had a hold on Dyson and she (Mrs. Glowney) would not be able to get him. On October 12, Officer Davis told Mrs. Glowney that the ARC vet would be unable to see Dyson that day due to jury duty. On October 13, Mrs. Glowney spoke with Davis to make arrangements for Davis to see Poncho; at that time, Davis told Mrs. Glowney that Dyson was waiting on the vet. On October 14, Officer Davis came and saw Poncho. Officer Davis told Mrs. Glowney that Dyson was doing better and had gained two pounds; Davis asked about Dyson's records. After Officer Davis obtained Dyson's records from Bigger Road Veterinary Clinic, Davis asked Mrs. Downey why they had not gone back to the vet. Mrs. Glowney testified that she told Davis that the veterinarian assumed Dyson's digestive issues were due to his age and did not say anything about the need to follow up. Davis told Mrs. Glowney that ARC would not allow her to see Dyson. When Mrs. Glowney asked if he would be put down, Officer Davis told her "no" because "she [Davis] would know something by then."

         {¶ 20} On October 15, Mrs. Glowney got a call from Davis telling her to call ARC when it opened at 10:00 a.m. Mr. Glowney called then and again on October 17, but the Glowneys were not provided information about Dyson. The Glowneys learned of Dyson's euthanasia on October 20.

         {¶ 21} Mrs. Glowney testified that she was never notified of the right to a hearing or to contest the seizure of Dyson. She testified that she did not give Officer Davis the right to come onto her property on October 10. Further, she stated that she was not notified of the decision to euthanize Dyson or of her right to contest that decision.

         {¶ 22} Defense counsel also called Dr. Maimon to testify, and she described how she came to see Dyson, her examination of him, and her provision of palliative care. She stated that her records showed that Dyson was a stray. She had checked for a microchip and found none.

         {¶ 23} On October 21, 2016, the Glowneys each were charged by complaint with cruelty against companion animal, in violation of former R.C. 959.131(C)(2), a misdemeanor of the second degree. Lindsey Glowney was also charged with violating Kettering City Ordinance 618.02 (control of dogs) by allowing her dog to run at large. The Glowneys appeared, entered pleas of not guilty, and waived their speedy trial time. On February 1, 2017, the Glowneys were further charged by complaint with violating R.C. 959.131(D)(1) and (2), both also misdemeanors of the second degree.

         {¶ 24} During the pendency of their cases, the Glowneys filed numerous motions, including a motion to present evidence of their other dog, a motion in limine, a motion for compliance with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), motions for continuances, motions to dismiss, and motions to suppress. Of relevance to this appeal, on June 14, 2017, the Glowneys filed a motion to suppress, claiming that the State violated their right to due process by failing to provide appropriate notices to them and that the State violated their constitutional rights under the Fourth, Sixth, and Fourteenth Amendments when Officer Davis seized Dyson, when ARC personnel failed to provide information about Dyson, when Dyson was euthanized, and when his collar was lost.

         {¶ 25} The trial court held a hearing on the motion on July 12, 2017 and August 9, 2017. At the beginning of the hearing, defense counsel presented testimony from Lindsey Glowney to establish that the Glowneys had standing to bring their motion to suppress. Following her testimony, the court concluded that the Glowneys had standing. The State then presented the testimony of Officer Davis, Deborah Smith (the neighbor who called 911), and Dr. ...

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