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Date: 08-12-2020

Case Style:

STATE OF OHIO -vs- BRANDON COOPER

Case Number: 2019 CA 00102

Judge: John W. Wise

Court: COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

Plaintiff's Attorney: AMY S. DAVISON
NEWARK CITY LAW DIRECTOR

Defendant's Attorney:

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{¶2} In April of 2018, Appellant killed his pit bull puppy, Buckeye, by shooting it
twice in the head with a nail gun.
{¶3} Prior to killing Buckeye, Appellant and his girlfriend, Syndel McWhorter,
owned both Buckeye and another dog, Grey, a husky. After Buckeye was spayed, she
began acting aggressive towards Grey, so Appellant rehomed Grey.
{¶4} On that morning the neighbor observed Appellant headed to the shed behind
the house carrying a blanket. When she did not see Buckeye at all the next day, she
called animal control.
{¶5} Toby Wills, the Newark Animal Control Agent, responded to the complaint.
Appellant McWhorter initially told him they rehomed Buckeye because she bit one of their
kids. When Wills asked if they buried something behind the shed, they admitted it was
Buckeye.
{¶6} Appellant testified that Buckeye’s aggressive behavior escalated until
eventually Buckeye bit Appellant’s son, who at the time was left unattended in the same
room as Buckeye. At the time of the bite, Buckeye was in her cage. Appellant testified
after this event, he decided he needed to euthanize the puppy; however, he did not have
Licking County, Case No. 2019 CA 00102 3
the money to pay a veterinarian to euthanize Buckeye. Ms. McWhorter took Buckeye out
to the shed and was petting him as Appellant shot the puppy twice in the back of the head
with a nail gun. Appellant testified that he did not look into placing Buckeye at an animal
shelter, take the puppy to see the vet, or contact any shelter or animal rescue
organizations.
{¶7} At trial Dr. Jody Houser, a veterinarian, testified as to the American Veterinary
Medical Association’s (“AVMA”) guidelines on how to euthanize pets. These guidelines
are explicit as to who should euthanize a pet, the training required to euthanize a pet, and
how it should be done. The AVMA guidelines state an animal should be euthanized by
law enforcement or other trained professionals. Euthanasia should be performed by such
individuals only in an emergency such as the animal is suffering or is an imminent danger
to a human.
{¶8} Dr. Houser testified that euthanasia should be used only by trained personnel,
such as animal control or law enforcement, in emergency situations. The AVMA
guidelines do not list financial status as an emergency in which to euthanize a dog. It also
does not permit a lay person from using a nail gun to euthanize a pet. Dr. Houser further
discussed that euthanasia means, “good death,” and that the hospital she works at tries
to minimize stress as much as possible for the animal.
{¶9} Dr. Houser also testified as to other options the veterinarian hospital discusses
with seeking to euthanize out-of-control pets. For example, behavior consultations may
be set up, trainers may be consulted, and in extremely rare cases, rehoming or
euthanizing the pet is necessary.
Licking County, Case No. 2019 CA 00102 4
{¶10} Appellant was charged with Prohibitions Concerning Companion Animals via
filing the complaint on April 17, 2018.
{¶11} Appellant entered a written plea of Not Guilty on April 27, 2018. Appellant
filed a motion to dismiss on August 21, 2018.
{¶12} The trial court denied said motion on August 23, 2018.
{¶13} A jury found Appellant guilty on one charge of prohibitions concerning
companion animals in violation of Newark Codified Ordinance 618.051(c)(1) on
September 20, 2018.
{¶14} Appellant appealed from this conviction based on three assignments of error.
The first, Appellant’s conviction violates due process as Newark Codified Ordinance
618.051(c)(1) is void for vagueness. State v. Cooper, 5th Dist. Licking No. 18-CA-90,
2019-Ohio-2925. Second, the trial court erred to the substantial prejudice of the defendant
by failing to strike a juror for cause after voir dire demonstrated the juror could not be fair
and impartial, thus violating the defendant’s rights guaranteed by Article I, Section 10 of
the Ohio Constitution and the Sixth and Fourteenth Amendments to the United States
Constitution. Id. Third, the defendant’s conviction is not supported by sufficient evidence
in violation of the due process clauses of the Fifth and Fourteenth Amendments to the
United States Constitution and Article I, Sections 1 and 16 of the Ohio Constitution. Id.
{¶15} On July 16, 2019, this Court reversed the original conviction based on the
Appellant’s aforementioned second assignment of error, holding that the trial court
abused their discretion by failing to remove a juror, Mr. Fancher, from the jury. Mr.
Fancher responded that the use of a nail gun, without regard to any other evidence, would
Licking County, Case No. 2019 CA 00102 5
be enough to convict Appellant under the statute, and the prosecutor did not rehabilitate
Mr. Fancher. Id.
{¶16} On August 28, 2019, Appellant renewed his motion to dismiss and requested
an expert witness on this case. The court denied both motions.
{¶17} A jury trial commenced on September 19, 2019, at which time Appellant was
found guilty again of one count of Prohibitions Concerning Companion Animals in
violation of Newark Codified Ordinance 618.051(c)(1).
ASSIGNMENTS OF ERROR
{¶18} On October 23, 2019, Appellant filed a notice of appeal. He herein raises the
following five Assignments of Error:
{¶19} “I. WHETHER THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT’S MOTION TO DISMISS BECAUSE NEWARK CODIFIED ORDINANCE
618.051(c)(1) IS UNCONSTITUTIONALLY VAGUE ON ITS FACE AND AS APPLIED IN
THIS CASE.
{¶20} “II. WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT
ADMITTED TESTIMONY REGARDING THE AVMA GUIDELINES.
{¶21} “III. WHETHER THE PROSECUTOR’S STATEMENTS DURING CLOSING
ARGUMENT DEPRIVED THE APPELLANT OF A FAIR TRIAL.
{¶22} “IV. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENSE
COUNSEL’S MOTION FOR EXPERT FEES.
{¶23} “V. WHETHER THE JURY’S GUILTY VERDICT IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND IS NOT SUPPORTED BY SUFFICIENT
EVIDENCE.”
Licking County, Case No. 2019 CA 00102 6
I.
{¶24} In his First Assignment of Error, Appellant argues that the statute, “No person
who confines or who is the custodian or caretaker of a companion animal shall negligently
torture, torment, needlessly mutilate or maim, cruelly beat, poison, needlessly kill, or
commits an act of cruelty against the companion animal,” is unconstitutionally vague.
N.M.O. 618.051 (c)(1). We disagree.
{¶25} The determination of a statute’s constitutionality is a question of law to be
reviewed de novo by the appellate court. See State v. Whites Landing Fisheries, 6th Dist.
Erie No. E-13-021, 2014-Ohio-1314, at ¶13.
{¶26} As created by the legislature, Ohio statutes are strongly presumed to be
constitutional. State v. Anderson (1991), 57 Ohio St.3d 168. In considering a statute as
void for vagueness, a court must determine whether the law affords a reasonable
individual of ordinary intelligence fair notice and sufficient definition and guidance to
enable him to conform his conduct to the law. Norwood v. Horney, 110 Ohio St. 3d 353,
380. The Supreme Court of Ohio recognizes limitations on the English language to be
both specific and reasonably brief, so prohibitions should be set out in terms that “an
ordinary person exercising ordinary common sense can sufficiently understand and
comply” with them. Columbus v. Kim, 118 Ohio St.3d 93, 2008-Ohio-1817, 886 N.E.2d
217.
{¶27} The void for vagueness doctrine does not require statutes to be drafted with
scientific precision. State v. Anderson (1991), 57 Ohio St.3d 168, 174. A three part test
has been adopted by the Ohio Supreme Court which must be applied when examining
the void-for-vagueness doctrine. Papachristou v. City of Jacksonville, 405 U.S. 156; State
Licking County, Case No. 2019 CA 00102 7
v. Collier, 62 Ohio St.3d 267. First, “the statute must provide adequate notice and fair
warning to persons of ordinary intelligence so that they can conform their conduct to the
dictates of the statute.” Id. Second, the statute cannot permit arbitrary and discriminatory
enforcement. Id. Third, the statute cannot unreasonably hinder fundamental constitutional
freedoms. Id.
{¶28} Appellant argues the statute is unconstitutionally vague because the phrases
“needlessly kill” and “unnecessary or unjustifiable pain or suffering” are unconstitutionally
vague. In his brief, Appellant argues that there are many possible activities that are never
prosecuted, but may fall within the terms of “negligently” or “needlessly,” it is up to an
individual’s interpretation.
{¶29} However, the term “negligently” is defined by R.C. 2901.22(D):
A person acts negligently when, because of a substantial lapse from
due care, the person fails to perceive or avoid a risk that the person's
conduct may cause a certain result or may be of a certain nature. A person
is negligent with respect to circumstances when, because of a substantial
lapse from due care, the person fails to perceive or avoid a risk that such
circumstances may exist.
{¶30} “Needlessly” must be interpreted as a reasonable person of common
intelligence would understand the term. In State v. Rawson, 10th Dist. No. 14AP-1023,
2016-Ohio-1403, 62 N.E.3d 880, the Court held the defendant, who also could not afford
a veterinarian, could have consulted a veterinarian about the cost or contacted the
humane society. Id. The defendant in Rawson, had to, “take reasonable means to
alleviate the dog’s suffering.” Id. In the case before this Court, Appellant had the same
Licking County, Case No. 2019 CA 00102 8
options available to him. He could have contacted a veterinarian, the humane society, or
a shelter. He chose not to do so. Instead, a mere fifteen minutes after his puppy bit his
unsupervised one-year old child, he killed the puppy by shooting her twice in the head
with a nail gun. Thus, an ordinary person exercising ordinary common sense would
readily understand killing the puppy before exhausting such options as “needlessly killing”
the animal.
{¶31} Appellants’ First Assignment of Error is overruled.
II.
{¶32} In his Second Assignment of Error, Appellant argues the trial court committed
plain error by admitting into evidence testimony on the AVMA guidelines on euthanizing
companion animals as it is irrelevant, or if relevant its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading
the jury. We disagree.
{¶33} As Appellant did not object to the admission of AVMA guidelines on the
euthanizing of companion animals, we review this matter under the plain error standard
of review. Plain error is to be taken with utmost caution, under exceptional circumstances
and only to prevent a manifest miscarriage of justice. State v. Long 53 Ohio St.2d 91.
Plain error will only be invoked if, but for the error, the outcome of the trial would have
been different. Id.
{¶34} Appellant argues that the admission of the AVMA guidelines and the
testimony of Dr. Houser, a veterinarian, were improperly allowed as the statute does not
require adherence to these guidelines and therefore are not relevant or misleading to the
jury. Under the Ohio Rules of Evidence, to the extent an expert witness relies on a learned
Licking County, Case No. 2019 CA 00102 9
treatise, statements contained in such a treatise may be read into evidence. Ohio Evid.
R. 803(18). Such evidence must be relevant. Relevant evidence must have “a tendency
to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Ohio Evid. R. 401.
In State ex rel. Ohio Soc. for the Prevention of Cruelty to Animals, Inc. v. Hocking Cty.
Bd. Of Commrs. 4th Dist. Hocking No. 13CA2, 2014-Ohio-3348, the AVMA guidelines
were admitted as Learned Treatise testimony to the extent they were relied upon by the
expert.
{¶35} As the AVMA guidelines would be properly admitted hearsay testimony
describing the training, considerations, experiences and procedures used when
euthanizing a pet to ensure the companion animal experiences the least amount of stress
as possible are relevant. In the case before this Court, Dr. Houser’s testimony about the
AVMA guidelines on euthanizing pets was both relevant and the risk of unfair prejudice
did not outweigh their probative value. Therefore, we are unpersuaded that the admission
of AVMA guidelines is plain error.
{¶36} Appellants’ Second Assignment of Error is overruled.
III.
{¶37} In his Third Assignment of Error, Appellant argues the prosecutor made
inappropriate and inflammatory comments during closing arguments, including
statements regarding her own personal experience with recently euthanizing a pet, to the
point the statements prejudicially affected the substantial rights of the accused. We
disagree.
Licking County, Case No. 2019 CA 00102 10
{¶38} As Appellant did not object to the argument at trial, the appellate standard of
review is limited to plain error. State v. White 82 Ohio St.3d 16. Plain error will only be
invoked if, but for the error, the outcome of the trial would have been different. State v.
Long 53 Ohio St.2d 91.
{¶39} Appellant first argues the prosecutor injected an example from her own life
of recently euthanizing a dog. In the second instance, Appellant states the prosecutor
inflamed the passions or prejudices of the jury for comments related to the euthanasia of
pets, including defining euthanasia as a “good death.”
{¶40} Regarding Appellant’s first argument, it is improper for the prosecutor to
discuss personal experiences not admitted into evidence. However, these statements
were neither outcome determinative nor unduly prejudicial, and therefore, do not
constitute reversible error.
{¶41} Appellant also argues the prosecutor improperly inflamed the passions and
prejudices of the jury with several comments related to the euthanasia of pets, including
wrongly defining the term euthanasia as meaning, “good death,” and asking the jurors to
remember the death of their own pets.
{¶42} Appellant begins by arguing that a simple Google search of euthanasia
shows this is not the meaning. However, Appellant completely ignores that his Google
search was not admitted into evidence at trial, but Dr. Houser testified to the court that
euthanasia means, “good death.” As such, the prosecutor discussing evidence admitted
at trial during closing arguments is not improper.
{¶43} Finally, Appellant essentially argues that the prosecutor should not have
asked the jurors to call to mind the death of their own pets. While a prosecutor may not
Licking County, Case No. 2019 CA 00102 11
make excessively emotional arguments which may inflame the jury’s sensibilities, the
prosecutor is entitled to latitude when making closing arguments. State v. Tibbets, 92
Ohio St.3d 146. However, “a conviction based solely on the inflammation of fears and
passions, rather than proof of guilt, requires reversal. State v. Keenan, 66 Ohio St.3d 402.
In Keenan, the prosecutor’s closing argument was more about the state of his own
emotions, only making glancing references to the facts of the case. Id. In this case, the
prosecutor spoke of her own personal experience with euthanizing her own pet. She
stated, “never once in the back of my mind at least when I did it in February was I thinking
how much this is going to cost me.” Tr. at 212. She goes on to describe how the only
thing she could think about was how to ease her pet’s suffering. However, these
statements make up only a small portion of the prosecutor’s closing arguments, which is
largely based on the evidence which was presented at trial speaking directly to testimony
from the Appellant and Dr. Houser. As such, we conclude that a review of the prosecutor’s
closing argument in its totality did not deny Cooper of a fair trial.
{¶44} Appellant’s Third Assignment of Error is overruled.
IV.
{¶45} In his Fourth Assignment of Error, Appellant argues the trial court erred in
denying defense counsel’s motion for expert fees in violation of Ake v. Oklahoma, 470
U.S. 68. We disagree.
{¶46} Appellant argues in Ake the United States Supreme Court recognizes the
right of a criminal defendant to a court appointed expert witness. Id. However, the
Supreme Court’s view is much narrower than that. The Court held that costs for an expert
were required to be provided when necessary to prepare an effective defense based on
Licking County, Case No. 2019 CA 00102 12
mental condition. The Court has chosen to recognize this narrow right because of the
pivotal role psychiatry plays in criminal proceedings. Id.
{¶47} The Ohio Supreme Court has a broader rule that applies to expert witnesses
in general. State v. Mason, 82 Ohio St.3d 144. At trial the defendant has the burden of
establishing the need for expert assistance, specifically by making a “particularized
showing (1) of a reasonable probability that the requested expert would aid in his defense,
and (2) that denial of the requested expert assistance would result in an unfair trial. Id. “A
trial court possesses broad discretion with respect to the admission of evidence.” State v.
West, 5th Dist. No. 16 CA 11, 2017-Ohio-4055.
{¶48} This Court is limited to an abuse of discretion standard of review. Id. While
the State had Dr. Houser testify as an expert in euthanasia for companion animals,
Appellant was attempting to retain an expert witness to proffer testimony about the way
in which to humanely slaughter livestock. As the humane slaughter of livestock is not at
issue in the trial, the denial of such a witness would not result in an unfair trial. We find
the trial court did not abuse its discretion with the denial of fees for the expert witness’s
testimony.
{¶49} Appellants’ Fourth Assignment of Error is overruled.
V.
{¶50} In his Fifth Assignment of Error, Appellant argues the jury’s guilty verdict is
against the manifest weight of the evidence and is not supported by sufficient evidence.
We disagree.
{¶51} Sufficiency of evidence and manifest weight of the evidence are separate
and distinct legal standards. State v. Thompkins, 78 Ohio St.3d 380. Essentially,
Licking County, Case No. 2019 CA 00102 13
sufficiency is a test of adequacy. Id. A sufficiency of the evidence standard requires the
appellate court to examine the evidence admitted at trial, in the light most favorable to the
prosecution, to determine whether such evidence, if believed, would convince the
average mind of the defendant’s guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio
St.3d 259.
{¶52} In contrast to the sufficiency of the evidence analysis, when reviewing a
weight of the evidence argument, the appellate court reviews the entire record, weighing
the evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts of evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380.
{¶53} Under a weight of the evidence argument, the appellate court will consider
the same evidence as when analyzing the Appellant’s sufficiency of evidence argument.
Appellant argues the jury clearly lost its way as their conviction of Appellant based on the
total weight of the evidence was a manifest miscarriage of justice.
{¶54} The State filed a complaint alleging Appellant violated Newark City
Ordinance 618.051(c)(1):
(c) No person who confines or is the custodian or caretaker of a
companion animal shall negligently do any of the following:
(1) Torture, torment, needlessly mutilate or maim, cruelly beat,
poison, needlessly kill, or commit an act of cruelty against a companion
animal.
Licking County, Case No. 2019 CA 00102 14
{¶55} At trial the State produced evidence that Appellant, by his own testimony,
was the caretaker of Buckeye, and that he shot Buckeye in the head twice with a nail gun
to kill the animal. Appellant admitted to Wills he took no steps to inquire about affordable
veterinary services, speaking with the humane society, or taking the puppy to a shelter.
Appellant testified the only steps he took was attempting to rehome the dog via Craigslist
and Facebook. Appellant did not contact any veterinarians about reducing the price of
euthanasia. He contacted no animal shelters nor humane societies about taking the
puppy. All he did was wait fifteen minutes after the puppy allegedly bit his unsupervised
son and then shot the puppy in the head twice with a nail gun. We find the State presented
sufficient evidence, if believed by a jury, that Appellant needlessly killed the dog, or
committed an act of cruelty. Our review of the entire record fails to persuade us that the
jury lost its way and created a manifest miscarriage of justice. Appellant was not convicted
against the manifest weight of the evidence.
{¶56} Appellant’s Fifth Assignment of Error is overruled

Outcome: For the foregoing reasons, the judgment of the Municipal Court of Licking
County, Ohio, is hereby affirmed.

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