[Cite as State v. Hartnady , 2021-Ohio-1914.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, Appellee,

- vs -

JEFFREY A. HARTNADY, Appellant. :

:

:

:

:

: CASE NO. CA2020-07-040

O P I N I O N 6/7/2021

CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT Case No. 2019 CRB 4486A

Mark J. Tekulve, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee Michela Huth, P.O. Box 17, Bolivar, Ohio 44612, for appellant

PIPER, P.J. {¶1} Appellant, Jeffrey Hartnady, appeals his convictions in the Cle rmont County Municipal Court for five coun ts of cruelty to animals. {¶2} The Clermont County Dog Warden, who is also a humane agent, beg an an investigation after receiving a complaint that animals housed o n Hartnady's property were not being cared for properly. Specifically, the complaint alle ged that the animals wereClermont CA2020-07-040

- 2 - lacking appropriate food, water, and shelter. The agent went t o Hartnady's property where she observed two pigs with inadequate shelter and no food or wa ter. The temperature that day was in the mid-nineties. {¶3} The agent further observed several donkeys and horses that were emaciated with bones showing through the skin. Some animals had matted h air and others had excessively long hooves. The confined animals had no food and the only water to drink was contaminated with leaves and algae. Hay located elsewhere on the property was

covered with mildew and was unsafe to use as feed. {¶4} After securing a search warrant, the agent returned to the prop erty with several officers. A humane agency volunteer accompanied the of ficers to aid in removing and rehousing the animals. The volunteer accepted several of t he animals including the donkeys and horse. With time and proper care, the animals have shown significant improvement in their physical condition and responded positivel y to proper care. {¶5} The agent filed 13 charges of animal cruelty based on her obser vations. Hartnady pled not guilty to all counts and the matter proceeded to a bench trial. Before the trial began, the state dismissed seven of the 13 charges, but p roceeded on six of the charges specific to the two pigs, three donkeys, and a miniatur e horse. {¶6} The trial court found Hartnady guilty on five of the six counts and sentenced him to a total of 180 days in jail, which the court suspended. The court also placed Hartnady on two years of community control and ordered that he not posse ss any livestock. The

court also ordered forfeiture of the animals that had been conf iscated. Hartnady now appeals his convictions, raising the following assignments of e rror. Because the two assignments of error are interrelated, we will address them tog ether. {¶7} Assignment of Error No. 1: {¶8} THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY ONClermont CA2020-07-040

- 3 - CHARGE H (BLACK POT BELLY PIG) AND CHARGE I (PINK POT BELLY PIG ) BECAUSE

THOSE CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE. {¶9} Assignment of Error No. 2: {¶10} THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY ON CHARGE A ("DONKEY WITH EXCESSIVELY LONG HOOVES"), CHARGE C ("SM ALL DONKEY WITH MATTED COAT"), AND CHA RGE L ("EMACIATED PONY/MINI H ORSE)

BECAUSE THOSE CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT

EVIDENCE. {¶11} Hartnady challenges his convictions for lack of sufficient evid ence. {¶12} When reviewing t he sufficiency of the e vidence underlying a cri minal conviction, an appellate court examines the evidence to determi ne whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable

doubt. State v. Intihar , 12th Dist. Warren No. CA2015-05-046, 2015-Ohio-5507. The relevant inquiry is "whether, after viewing the evidence in a l ight most favorable to the prosecution, any rational trier of fact could have found the es sential elements of the crime proven beyond a reasonable doubt." State v. Jenks , 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. "When evaluati ng the sufficiency of the e vidence, this court defers to the trier of fact regarding questions of credibility." State v. Kirkland , 140 Ohio St.3d 73, 2014-Ohio-1966, ¶ 132. {¶13} Regarding the pigs, Hartnady was convicted of cruelty to animal s pursuant to R.C. 959.13(A)(2), which provides that no person shall: impound or confine an animal without affording it, during such confinement, access to shelter from wind, rain, snow, or excessive direct sunlight if it can reasonably be expected that the animals would otherwise become sick or in some other way suffer. * * * For the purpose of this section, shelter means a man-made enclosure, windbreak, sunshade, or natural windbreak or sunshade that is developed from the earth’sClermont CA2020-07-040

- 4 - contour, tree development, or vegetation. {¶14} Regarding the equine animals (horse and donkeys), Hartnady was convicted of cruelty to animals pursuant to R.C. 959.13(A)(1), which prov ides that no person shall "torture an animal, deprive one of necessary sustenance, unnece ssarily or cruelly beat, needlessly mutilate or kill, or impound or confine an animal wi thout supplying it during such confinement with a sufficient quantity of good wholesome food a nd water." {¶15} The culpability required to support a violation of R.C. 959.13 is recklessness. State v. Morgan , 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014- Ohio2472, ¶ 20. As defined by R.C. 2901.22(C), a person acts reckl essly "when, with heedless indifference to the consequences, he perversely disregards a kn own risk that his conduct is likely to cause a certain result or is likely to be of a cer tain nature." {¶16} After reviewing the record and construing the evidence in a lig ht most favorable to the prosecution, we find that Hartnady's convictio ns are supported by sufficient

evidence. {¶17} The state presented testimony from the county humane agent who investigated the allegations against Hartnady. The agent testi fied that she had worked with animals for approximately 25 years in various ways including as a groomer, kennel technician, and veterinary assistant. As a humane agent, the a gent was also trained through the Ohio Police Officers Training Academy. {¶18} The agent testified she received a complaint that animals in Ha rtnady's care were not being properly fed, watered, or sheltered. On the day the agent went to Hartnady's property, it was sunny and between 93-95 degrees. The agent ob served two pigs, each in its own pen but adjacent to one another. The agent testified t hat neither pig had food nor water in its pen and that the pigs did not have shelter from ra in or excessive sunlight. The agent testified as to why pigs must have access to food and wat er. Her testimony explainedClermont CA2020-07-040

- 5 - that pigs need protection from the sun because they are hairles s animals that easily "get sunburned, they can succumb to heat exhaustion, dehydration," a nd that "there are many things that can happen if there's no shelter from the elements. " {¶19} The agent testified that the shelter provided for the black pig was inadequate because its dilapidated roof was insufficient to protect the pi g from the sun and that the doghouse provided for the pink pig was not adequate shelter for that pig because it was not large enough to accommodate the pig. While a photograph taken by the agent showed limited shade for one pig, the agent testified that the photogr aph was taken in the later afternoon, around 4:00 p.m., rather than when the sun was at th e apex of its day arc with minimum shade protection from the heat. {¶20} The agent further testified that she observed horses and donkey s on the same property, within the same enclosure. The agent testified that the horses and donkeys were not provided food and that their water was "green and full of l eaves and algae." The agent explained that leaves in water can decompose and become "toxic, " while the algae can attract parasites leaving the water unhealthy to drink. {¶21} While the agent observed some hay bales near the enclosure, she testified that the hay was covered in mildew and that there was no grass within the enclosure on which the horses and donkeys could graze. The agent testified that even if the horses and donkeys had access to the mildewed hay, it would be an unhealth y food source because mildew can cause problems in the animals' digestive system and health issues such as

colic. {¶22} The agent testified that one of the miniature horses was "very emaciated" and that she could see the horse's spine and ribs. According to th e agent's observations, the horse was also "listless." Regarding the donkeys, the agent te stified that one was thin and unkempt, and had matted fur. The agent observed one donkey app roach the leaf and algaeClermont CA2020-07-040

- 6 - filled water and turn away rather than drink it. She also obse rved a donkey with overgrown hooves, which she testified is "extremely painful" for the anim al. She testified that overgrown hooves could cause injury to the donkey's tendons and cause other "life long problems." {¶23} The state then presented testimony from an expert in equine vet erinarian medicine who works at an equine-exclusive veterinary practice t hat treats horses, donkeys, miniature horses, and zebras. The veterinarian testified that she examined the equine animals taken from Hartnady's property. The examination perfor med included assigning a body score between one and nine as established by the American Association of Equine Veterinary practitioners. The veterinarian testified that an i deal body score is between four

and five. {¶24} The veterinarian testified that the miniature horse had a body condition score

of 1.5 out of nine and that it suffered from "severe muscle los s diffusely as well as all ribs were visible and there was no muscle on the hind quarters." Th e veterinarian explained that severe muscle loss diffusely means that the muscle loss wa s located "throughout the horse's entire body rather than it being allocated to one parti cular area" and that such diffusion is "almost always due to malnutrition of some sort." The same horse had a grade 4 (out of 5) heart murmur associated with "severe malnutrition. " The horse also suffered from moderately overgrown feet and a mild skin irritation over its back due to exposure to the elements and an inability to seek proper shelter. The hors e was small in stature, which the veterinarian attributed to "chronic malnutrition resulting in stunting of her growth." {¶25} The veterinarian also testified that a small donkey also scored a 1.5 out of nine for body condition and suffered from muscle loss over his "top line in particular, his spine as well as his scapula, so his shoulder blades were easil y visible and palpable." The donkey's hooves were moderately overgrown and he had "significa nt matted fur throughoutClermont CA2020-07-040

- 7 - his entire body as well as moderate skin irritation due to that matted fur not allowing for proper oxygenation of the skin." {¶26} The veterinarian testified that a score of 1.5 body condition w ould require several weeks or months of improper care. Such unhealthy condi tions as observed would require time to occur. {¶27} The veterinarian also testified about a miniature donkey who ha d a body condition score of 3.5. This donkey had "significant muscle lo ss over her top line as well as a pot belly indicating likely a parasite burden," as well as a grade 2 heart murmur. The veterinarian determined that this donkey was malnourished and r equired care for overgrown

hooves. {¶28} The veterinarian testified that horses and donkeys require cons tant access to clean water and food and that illness can occur from inadequate water supplies. She further

testified that the animals need access to water free from debri s and other contaminants such as algae. Furthermore, both donkeys and horses need acces s to food because they lack gall bladders and an inability to store bile. Thus, as a veterinarian, she recommends that horses and donkeys have "constant access to food and grazi ng, whether that be hay at all times or grass at all times." When asked whether mildew ed hay would provide sufficient sustenance, she testified that it would not because it could cause "severe diseases that can be deadly. In particular in hay that is mold y we see presence of clostridium botulinum toxin which will kill the horse, even whe n treated it's almost always

fatal." {¶29} The state next presented testimony from the humane agency volun teer who cared for the animals. The volunteer, who is a retired police officer and retired Ohio Department of Natural Resources officer, testified that he has experience in rehabilitating animals and has been a longtime volunteer for the humane agency . He has workedClermont CA2020-07-040

- 8 - extensively with abandoned and neglected animals. The voluntee r testified to the lack of food and clean water on the day he picked up the animals. He a lso looked for wet spots in the pigs' area where they could cool themselves, but found none despite the temperatures that week, which were averaging in the nineties. {¶30} The volunteer also testified that when he first observed the mi niature horse, its hair had not been cared for, it showed evidence of being di rty and matted, and that its backbone "stuck out of his body about an inch, hip bones were s ticking out, ribs were sticking out and the attitude of the animal was poor." When as ked to further explain the horse's attitude, he testified that the horse had "no enthusias m" and "no spirit." {¶31} The volunteer further testified that the donkey was "extremely covered" in matted clumps of hair and looked like it had not been "fed anyt hing." However, since the animals have been in his care, they have significantly improved in both body and spirit. Specifically, the animals have gained weight and have learned t o trust him over time. {¶32} After viewing this evidence in a light most favorable to the pr osecution, we find the evidence sufficient for each of Hartnady's convictions . While Hartnady argues that the trial court's findings of guilt were based upon impermissib le inference stacking, we disagree. Instead, the state offered evi dence through witness testimony that the pigs were denied necessary shelter to protect them from the sun. The tri al court found credible the agent's testimony that one shelter was inadequate because of it s size and one was inadequate because of its dilapidated roof. The testimony indi cated that the pigs needed shelter from the sun because as hairless animals they are prone to dehydration, sunburn,

and heat exhaustion. {¶33} Hartnady's argument that the pigs suffered no actual harm due t o lack of adequate shelter is meritless. The statute does not require th e state to prove actual harm

to an animal. The evidence in this case established that Hartn ady acted recklessly inClermont CA2020-07-040

- 9 - confining the pigs in such a manner that they lacked adequate s helter from the sun and other elements. Moreover, the state's witnesses testified to t he danger that sun exposure poses hairless animals such that it can "reasonably be expected " that the pigs would "become sick or in some other way suffer" from the lack of shel ter required by R.C. 959.13(A)(2). {¶34} Regarding the horses and donkeys, Hartnady testified in his own defense that he provided adequate food and water. However, the trial court found the state's witnesses to be more credible when they testified to the poor conditions that jeopardized the animals' well-being and resulted in harmful physical consequences. {¶35} On appeal, Hartnady claims that the trial court engaged in impe rmissible inference stacking to connect the malnourishment of each animal to the lack of food and water at the time of the agent's investigation. However, the v eterinarian testified that in her expert opinion, the animals were malnourished over time and tha t horses and donkeys require a constant food and water source. The evidence deduced at trial, not improper inference stacking, proves beyond a reasonable doubt that Hartn ady confined the equine animals without supplying "a sufficient quantity of good wholes ome food and water" as is required by the statute. {¶36} After a full review of the record and after taking into conside ration each of Hartnady's arguments on appeal, we find that any rational trier of fact could have found the essential elements of cruelty to animals proven beyond a reason able doubt. As such, Hartnady's two assignments of error are overruled. {¶37} Judgement affirmed.

S. POWELL and M. POWELL, JJ., concur.