[Cite as State v. Powell, 2015-Ohio-4459.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 14AP-1054 

v. : (M.C. No. 14ERB 072191)

Catrice S. Powell, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on October 27, 2015 

 

Richard C. Pfeiffer, Jr., City Attorney, and Melanie R. Tobias, 

for appellee. 

Brehm & Associates, and Eric W. Brehm, for appellant. 

 

APPEAL from the Franklin County Municipal Court 

SADLER, J. 

{¶ 1} Defendant-appellant, Catrice S. Powell, appeals from a judgment of the 

Franklin County Municipal Court finding her guilty of violating R.C. 959.131(C)(2). For 

the reasons that follow, the judgment of the trial court is affirmed. 

I. BACKGROUND 

{¶ 2} Appellant is charged with negligently omitting care for a companion animal 

under R.C. 959.131(C)(2),1 a misdemeanor of the second degree, arising from the July 13, 

2014 death of a dog chained to a kennel in the yard behind appellant's apartment. On 

November 7, 2014, appellant signed a waiver of trial by jury, and the case proceeded to 

trial before the court on November 17, 2014. Prior to commencing the trial, the city 

 

1 The complaint originally stated R.C. 959.131(C)(1) but was amended to reflect the written description of the 

charge. 
No. 14AP-1054 2 

moved to dismiss an accompanying rabies vaccination case. The city then produced the 

following witnesses. 

{¶ 3} Doctor Audra Hanthorn, a veterinarian for the Capital Area Humane 

Society, testified that she examined the deceased dog2 and determined, in her medical 

opinion, that the dog perished from "parvo." (Tr. 11.) Dr. Hanthorn based her 

determination that parvo caused the dog's death on her prior experience observing dogs 

with parvo, the breed's high susceptibility to parvo, the dog's pale gums, the presence of 

hemorrhagic and bloody diarrhea, and a positive indication for parvo on a "parvo snap 

test" preliminary screening, which she described as "very reliable." (Tr. 17, 21.) 

{¶ 4} According to Dr. Hanthorn, parvo is a virus that attacks a dog's rapidly 

dividing cells, which causes the lining of the small intestines to shed completely and can 

result in the dog becoming septic through a "massive" bacterial infection. (Tr. 11.) 

Simultaneously, parvo causes a vast reduction in white blood cells to fight the infection. 

As a result, the fatality rate for a dog not vaccinated or otherwise treated is "upwards of 

* * * 90 percent." (Tr. 12.) The parvo vaccine is nearly 100 percent effective, reducing the 

mortality rate of properly vaccinated dogs exposed to parvo to nearly zero. Dr. Hanthorn 

testified that the symptoms of parvo, in general order of appearance, include lethargy, 

refusal to eat and drink, vomiting, weight loss, regular then bloody diarrhea, lateral 

recumbency (laying on its side), and weakness to the point of inability to move. In the 

vast majority of cases, a lag time exists between the first signs of vomiting and bloody 

diarrhea, with the final stages of parvo manifesting over "at least seven [days], longer 

sometimes." (Tr. 13.) In Dr. Hanthorn's opinion, dogs in the later stage of parvo, 

experiencing dehydration, hemorrhagic diarrhea, and sepsis, "are absolutely suffering 

[and] are in a great deal of pain and discomfort." (Tr. 22-23.) On cross-examination, Dr. 

Hanthorn confirmed that parvo can progress differently, depending on the dog, and that 

she did not know how long this particular dog had been afflicted or suffering. She also 

confirmed that she did not observe signs of physical abuse or trauma. 

{¶ 5} Ryan Evans of the Columbus Division of Police testified that he was 

dispatched to appellant's house after receiving a call from a neighbor concerned about the 

 

2 Unfortunately, the record does not identify the dog by name. 
No. 14AP-1054 3 

well-being of a dog in the yard behind appellant's apartment. When he arrived, through 

the rain Evans observed a dog in a crate-type kennel located near the foot of the back 

stairs of an apartment. The kennel had an "overwhelming," "rancid" smell of wet dog and 

feces, which he rated as a "seven" on a scale of ten. (Tr. 34, 42.) Evans did not observe 

food or water for the dog outside. The dog was laying on its side with its eyes and mouth 

open and tongue hanging out; Evans thought the dog was dead. Upon a closer look, 

Evans noticed the dog was breathing very slowly and flinched, but did not get up, when 

Evans made contact with the dog's face. 

{¶ 6} Evans knocked on the back door of the apartment, and appellant answered. 

He asked appellant if the dog behind her apartment belonged to her, and she answered 

yes. According to Evans, appellant claimed that she did not realize the dog was sick and 

that the last time she checked on it, it was fine. When Evans showed her the dog, she 

responded, "[t]hat's weird," and said she did not understand what happened. (Tr. 36.) 

Evans stated that during this time, appellant was "[v]ery unapologetic and very 

unconcerned about the dog. [S]he did not leave her stoop to come down and check on the 

dog when I showed it to her." (Tr. 37.) Appellant mentioned to Evans that the dog had 

run away for a couple of days and could have gotten sick during that time, and told Evans 

that the dog's food and water were located inside. Evans returned to his cruiser and 

contacted animal control. Appellant returned into her apartment. 

{¶ 7} After about 45 minutes, Devon Mann, a deputy warden at Franklin County 

Animal Care and Control, arrived and accompanied Evans to the back yard to view the 

dog. Evans observed the animal and believed it had died. They knocked on appellant's 

back door and told her the dog passed away, to which appellant responded "okay" and 

again did not leave her stoop. (Tr. 40.) Appellant informed Evans that a friend gave her 

the dog, it had just returned after being gone for five days, and she did not feel it was 

necessary to get the dog medicated at that time. She told Evans that she knew she had to 

take the dog to the veterinarian generally, but had not had time to go. On crossexamination, Evans agreed he was upset to see the dog in those conditions and did not 

like the way appellant reacted to the situation. 

{¶ 8} Mann testified that he responded to a dispatch to appellant's apartment 

regarding an animal in distress. According to Mann, when he and Evans approached the 
No. 14AP-1054 4 

dog, it was laying on its side inside of the kennel, attached to a "tie-out" which left it little 

room to move around. (Tr. 59.) Mann saw the dog exhale, which he believed to be its last 

breath. At that point, Mann checked the dog and confirmed it had died. Although it was 

pouring rain at that point, Mann observed a significant amount of diarrhea and vomit in 

the kennel. 

{¶ 9} Mann testified that he and Evans spoke with appellant, and he continued 

speaking with her after Evans left. In Mann's opinion, appellant did not seem very 

concerned the dog had died. She told Mann that she got the dog on Craig's List and did 

not know how it got sick, but it had recently showed up after running away for five days. 

"[A]t that point it was sick" and vomiting, but she "didn't think anything of it because it 

had gotten sick before and it had just gotten better on its own." (Tr. 56, 57.) Appellant 

did not check on the dog in Mann's presence. She agreed to sign an "Owner Surrender 

Authorization Form," allowing the dog's body to be collected by Mann. (Exhibit C, 1.) The 

next day, the Capital Area Humane Society retrieved the dog's body from Franklin County 

Animal Care and Control. On cross-examination, Mann confirmed that he had no chance 

to observe the dog prior to the moment he arrived, that he did not enter the apartment to 

see if appellant otherwise provided the dog food, water, or an interior crate, and also 

agreed that he was a dog lover and had empathy for the animal. 

{¶ 10} Aimee Johnson, a humane agent in training and a dispatcher in cruelty 

investigations at the Capital Area Humane Society, testified that she accompanied another 

agent to appellant's apartment on July 17, 2014 to follow-up on a referral from animal 

control regarding the deceased dog. Johnson testified that appellant said a friend gave 

her the dog and advised her it was up to date on all of its shots. Appellant told Johnson 

that the dog was loose for about four days but returned to her house on the morning of the 

day it died. Appellant told Johnson that in the morning the dog appeared fine and was 

eating and drinking, but in the evening the dog laid down a lot and vomited. Appellant 

claimed that she had tried to call someone regarding the dog but did not get a chance to 

because the neighbors already called authorities. 

{¶ 11} After admitting as evidence the owner surrender form and several 

photographs of the dog corpse in its kennel and at the humane society, the state rested its 
No. 14AP-1054 5 

case. Appellant moved for a judgment of acquittal under Crim.R. 29(A), which the court 

overruled. The defense then rested its case. 

{¶ 12} The court found appellant guilty of R.C. 959.131(C)(2) and imposed a 

sentence of 90 days incarceration with 90 days suspended, a $100 financial sanction, and 

five years of probation with conditions of not owning or residing with animals and 

random inspections by animal control and the humane society. 

II. ASSIGNMENTS OF ERROR 

{¶ 13} Appellant submits two assignments of error for our review: 

1. THE TRIAL COURT DID ERR BY ALLOWING THE 

STATE TO ADMIT EVIDENCE OF THE DEFENDANT'S 

PRIOR BAD ACTS. 

2. THE TRIAL COURT DID ERR WHEN IT ENTERED 

JUDGMENT AGAINST THE DEFENDANT WHEN THE 

EVIDENCE WAS INSUFFICIENT TO SUSTAIN A 

CONVICTION AND WAS NOT SUPPORTED BY THE 

MANIFEST WEIGHT OF THE EVIDENCE. 

III. DISCUSSION 

A. First Assignment of Error 

{¶ 14} In her first assignment of error, appellant contends that the trial court erred 

in permitting the prosecution, over her objection, to present "other acts" evidence under 

Evid.R. 404(B) through Mann's testimony that appellant did not license or vaccinate the 

dog for rabies. As such, appellant asks us to vacate the judgment of the trial court and 

remand the case for a new trial. 

{¶ 15} "[T]rial court decisions regarding the admissibility of other-acts evidence 

under Evid.R. 404(B) are evidentiary determinations that rest within the sound discretion 

of the trial court. Appeals of such decisions are considered by an appellate court under an 

abuse-of-discretion standard of review." State v. Morris, 132 Ohio St.3d 337, 2012-Ohio2407, ¶ 22. " 'Abuse of discretion' has been described as including a ruling that lacks a 

'sound reasoning process.' " Id. at ¶ 14, quoting AAAA Ents., Inc. v. River Place 

Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). "A review under 

the abuse-of-discretion standard is a deferential review. It is not sufficient for an 

appellate court to determine that a trial court abused its discretion simply because the 
No. 14AP-1054 6 

appellate court might not have reached the same conclusion or is, itself, less persuaded by 

the trial court's reasoning process than by the countervailing arguments." Id. 

{¶ 16} "As a general rule, evidence of previous or subsequent criminal acts, wholly 

independent of the criminal offense for which a defendant is on trial, is inadmissible." 

State v. Thompson, 66 Ohio St.2d 496, 497 (1981). In line with this general rule, Evid.R. 

404(B) states: "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show action in conformity therewith." Still, the trial 

court has "broad discretion" to admit other acts evidence for "other purposes, such as 

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident." Evid.R. 404(B); State v. Williams, 134 Ohio St.3d 521, 2012-Ohio5695, ¶ 2, 17. 

{¶ 17} The Supreme Court in Ohio in Williams set out a three-step analysis for the 

trial court to consider in admitting "other acts" evidence: (1) whether the other acts 

evidence is relevant under Evid.R. 401; (2) whether the other acts evidence is presented to 

prove a permissible purpose, such as those stated in Evid.R. 404(B), rather than to prove 

the character of the accused in order to show activity in conformity therewith, and 

(3) whether the probative value of the other acts evidence is substantially outweighed by 

the danger of unfair prejudice under Evid.R. 403. Id. at ¶ 19-20.

{¶ 18} In this case, appellee does not contest that the trial court admitted other 

acts evidence and does not advance an argument regarding its permissible purpose. 

Rather, appellee argues that appellant was not prejudiced by the prior bad acts testimony 

and, therefore, reversal is inappropriate here. For the following reasons, we agree with 

appellee. 

{¶ 19} "In determining whether to grant a new trial as a result of the erroneous 

admission of evidence under Evid.R. 404(B), an appellate court must consider both the 

impact of the offending evidence on the verdict and the strength of the remaining 

evidence after the tainted evidence is removed from the record." State v. Morris, 141 Ohio 

St.3d 399, 2014-Ohio-5052, syllabus. See also Crim.R. 52(A); R.C. 2945.83. The court 

summarized the Morris analysis in the subsequent decision of State v. Harris, 142 Ohio 

St.3d 211, 2015-Ohio-166, ¶ 37: 
No. 14AP-1054 7 

[T]he following analysis was established to guide appellate 

courts in determining whether an error has affected the 

substantial rights of a defendant, thereby requiring a new 

trial. First, it must be determined whether the defendant was 

prejudiced by the error, i.e., whether the error had an impact 

on the verdict. Id. at ¶ 25 and 27. Second, it must be 

determined whether the error was not harmless beyond a 

reasonable doubt. Id. at ¶ 28. Lastly, once the prejudicial 

evidence is excised, the remaining evidence is weighed to 

determine whether it establishes the defendant's guilt beyond 

a reasonable doubt. Id. at ¶ 29, 33. 

{¶ 20} In examining the record to determine this issue, we may give weight to the 

fact that the error occurred in a bench trial, rather than a jury trial. State v. Johnson, 5th 

Dist. No. 2014CA00189, 2015-Ohio-3113, ¶ 91. "Indeed, a judge is presumed to consider 

only the relevant, material and competent evidence in arriving at a judgment, unless the 

contrary affirmatively appears from the record." Id., citing State v. White, 15 Ohio St.2d 

146, 151 (1968). See also State v. Williams, 6th Dist. No. L-11-1084, 2013-Ohio-726, ¶ 29-

30, appeal not allowed, 135 Ohio St.3d 1461, 2013-Ohio-2285. 

{¶ 21} Here, appellant points to the testimony of Mann which, in describing his 

interaction with appellant, states "I asked [appellant] if the dog had a current dog license 

or current rabies vaccination, it did not," and later continues "[w]e asked if she had ever 

taken the dog to a veterinarian or if it had ever had any vaccinations. She said no. We 

asked her if she was aware that the dog was supposed to have a dog license by law as well 

as rabies vaccination, she said no." (Tr. 56-57.) Appellant objected to the testimony 

regarding the dog license and rabies vaccination as evidence of other bad acts relating to 

dismissed issues irrelevant to the case at hand. Appellee responded that the evidence was 

not being offered to show bad acts or prove appellant had issues with vaccination or 

registration but was "just telling the conversation that occurred." (Tr. 57.) The court 

overruled both objections, stating "I see what you're saying, * * * if this were in front of a 

jury, I would agree [with appellant], but I'm giving it the appropriate weight." (Tr. 57.) 

{¶ 22} After this exchange, no affirmative indication shows that the trial court 

improperly considered evidence of the lack of registering or vaccinating the dog for rabies 

in arriving at its judgment in this case. This evidence does not resurface again, either in 

appellee's closing arguments or in the trial court's reasoning in finding appellant guilty. 
No. 14AP-1054 8 

The trial court judge focused instead on the credibility and weight of the officers and 

humane society agents' observations and appellant's demeanor, as described by the 

officers and agents. On this record, the trial court is presumed to not have considered the 

evidence in arriving at a judgment. Therefore, we conclude that the error did not impact 

the fairness of the bench trial or verdict, and appellant was not prejudiced. 

{¶ 23} Furthermore, the error was harmless beyond a reasonable doubt. 

Considering the facts as discussed in the second assignment of error, once the tainted 

evidence is excised, overwhelming evidence of appellant's guilt supports the conviction 

and establishes appellant's guilt beyond a reasonable doubt. 

{¶ 24} Accordingly, appellant's first assignment of error is overruled. 

B. Second Assignment of Error 

{¶ 25} In her second assignment of error, appellant contends that the state 

presented insufficient evidence to sustain a conviction under R.C. 959.131(C)(2), and the 

conviction was not supported by the manifest weight of the evidence. For the following 

reasons, we disagree. 

{¶ 26} Sufficiency of the evidence is a legal standard that tests whether the 

evidence is legally adequate to support a verdict. State v. Thompkins, 78 Ohio St.3d 380, 

386 (1997). Whether the evidence is legally sufficient to support a verdict is a question of 

law, not fact. Id. In determining whether the evidence is legally sufficient to support a 

conviction, " '[t]he relevant inquiry is whether, after viewing the evidence in a light most 

favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime proven beyond a reasonable doubt.' " State v. Robinson, 124 Ohio 

St.3d 76, 2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), 

paragraph two of the syllabus. A verdict will not be disturbed unless, after viewing the 

evidence in a light most favorable to the prosecution, it is apparent that reasonable minds 

could not reach the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St.3d 

460, 484 (2001). 

{¶ 27} In a sufficiency of the evidence inquiry, appellate courts do not assess 

whether the prosecution's evidence is to be believed but whether, if believed, the evidence 

supports the conviction. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79-

80 (evaluation of witness credibility not proper on review for sufficiency of evidence); 
No. 14AP-1054 9 

State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that "in a 

sufficiency of the evidence review, an appellate court does not engage in a determination 

of witness credibility; rather, it essentially assumes the state's witnesses testified 

truthfully and determines if that testimony satisfies each element of the crime"). Further, 

"the testimony of one witness, if believed by the jury, is enough to support a conviction." 

State v. Strong, 10th Dist. No. 09AP-874, 2011-Ohio-1024, ¶ 42. 

{¶ 28} "Even though supported by sufficient evidence, a conviction may still be 

reversed as being against the manifest weight of the evidence." State v. McCombs, 10th 

Dist. No. 15AP-245, 2015-Ohio-3848, ¶ 3, citing Thompkins at 387. "While sufficiency of 

the evidence is a test of adequacy regarding whether the evidence is legally sufficient to 

support the verdict as a matter of law, the criminal manifest weight of the evidence 

standard addresses the evidence's effect of inducing belief." State v. Cassell, 10th Dist. 

No. 08AP-1093, 2010-Ohio-1881, ¶ 38. 

{¶ 29} When presented with a manifest-weight challenge, an appellate court may 

not merely substitute its view for that of the trier of fact but must review the entire record, 

weigh the evidence and all reasonable inferences, consider the credibility of witnesses, 

and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost 

its way and created such a manifest miscarriage of justice that the conviction must be 

reversed and a new trial ordered. Thompkins at 387, citing State v. Martin, 20 Ohio 

App.3d 172, 175 (1st Dist.1983). An appellate court should reserve reversal of a conviction 

as being against the manifest weight of the evidence for only the most " 'exceptional case 

in which the evidence weighs heavily against the conviction.' " Id., quoting Martin at 175. 

{¶ 30} In order to find appellant guilty of negligently omitting care for a 

companion animal, the state had to prove beyond a reasonable doubt that she confined or 

was the custodian or caretaker of a companion animal that negligently omitted "any act of 

care by which unnecessary or unjustifiable pain or suffering is caused, permitted, or 

allowed to continue, when there is a reasonable remedy or relief, against the companion 

animal." R.C. 959.131(C)(2). Appellant contends that the state "failed to prove there was 

a reasonable remedy or relief for a parvo virus infection" and, as such, her conviction was 

based on insufficient evidence. (Appellant's Brief, 12.) 
No. 14AP-1054 10 

{¶ 31} However, under R.C. 959.131(C)(2), the state was not required to prove a 

reasonable remedy or relief for the parvo virus infection itself. Rather, the state was 

required to prove appellant did not provide care which would have at least provided 

relief to the dog, and the failure to do so caused, permitted, or allowed unnecessary or 

unjustifiable pain or suffering to continue. The statute does not limit the care at issue to 

veterinary or medical care but expressly encompasses "any" act of care to provide a 

reasonable remedy or relief to the dog. The statute also is also not specific to care for 

dogs that are sick but generally addresses inaction that causes, permits, or allows 

unnecessary or unjustifiable pain or suffering, in general, to continue. 

{¶ 32} To these points, the state presented evidence that the dog suffered from 

parvo virus, a nearly always fatal disease which causes a dog to suffer in its final stages 

and generally manifests symptoms over the course of at least seven days. Further, the 

state also showed that the dog was outside in July and in the pouring rain, while 

confined on a short leash without ready access to food and water and laying in a 

significant amount of diarrhea and vomit. The record shows that the state of the dog 

and its environment was readily apparent by sight and smell by the officer and deputy as 

they entered the yard and was apparently readily apparent to a neighbor who called for 

help. Viewing these facts, even if a remedy for parvo was not feasible for the dog, at the 

very least, appellant could have provided the dog relief from suffering in the wretched 

environmental state it was found in, and her failure to do so caused the dog unnecessary 

and unjustifiable suffering. Therefore, reviewing the record, we find the state met its 

burden, and the evidence in the record is sufficient to convict appellant under R.C. 

959.131(C)(2). 

{¶ 33} Appellant does not articulate a separate argument regarding the manifest 

weight of the evidence but appears to base the manifest weight challenge on the 

insufficiency of evidence as stated above. As we have found the evidence presented by the 

state to be sufficient to support the conviction, appellant's argument fails. Moreover, our 

own review of the record does not reveal that this is the exceptional case where the trial 

court judge, as trier of fact, clearly lost his way and created such a manifest miscarriage of 

justice that the conviction must be reversed and a new trial ordered. 

{¶ 34} Accordingly, appellant's second assignment of error is overruled. 
No. 14AP-1054 11 

IV. CONCLUSION 

{¶ 35} Having overruled appellant's two assignments of error, we affirm the 

judgment of the Franklin County Municipal Court. 

Judgment affirmed.

KLATT and BRUNNER, JJ., concur. 

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