Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Municipal Court Nos. 2016-CRB-2409 &
C. THOMAS, Atty. Reg. No. 0078255, Attorney for
R. LEONARD, Atty. Reg. No. 0031006, 1670 Penbrooke Trail,
Dayton, Attorney for Defendants-Appellants.
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). 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. Upon the Glowneys' motion, we have
consolidated their cases for appellate review. For the following
reasons, the trial court's judgments will be affirmed.
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,
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. ...