State v. Morgan

[Cite as State v. Morgan, 2014-Ohio-2472.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :
CASE NOS. CA2013-08-146
Plaintiff-Appellee, : CA2013-08-147

: OPINION
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:

DEBORA MORGAN, et al., :

Defendants-Appellants. :

CRIMINAL APPEAL FROM BUTLER COUNTY AREA I COURT
Case No. CRB 1300421

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Michael K. Allen & Associates, Mary K. Martin, 5181 Natorp Boulevard, Suite 210, Mason,
Ohio 45040, for defendants-appellants

S. POWELL, J.

{¶ 1} Defendants-appellants, Debora and Kenneth Morgan, appeal from their

respective convictions in the Butler County Area I Court after a jury found them each guilty of

cruelty to animals. For the reasons outlined below, we affirm.

{¶ 2} On the morning of March 25, 2013, Kenneth telephoned Dr. David Krausher, a

local veterinarian, to check on a downed horse that was shivering and declining rapidly.

Upon arriving at the Morgans' property located at 1848 Millville Oxford Road, Hanover
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Township, Butler County, Ohio, Dr. Kausher met with Kenneth who then escorted him back to

the horse barn. According to Dr. Kausher, the barn was very cluttered with large amounts of

manure built up in the stalls. Dr. Kausher also noticed a dead horse covered in snow lying

near the back door leading to the pasture, as well as a very thin horse – the horse subject to

this appeal – standing nearby in its own stall. At the time he arrived, Dr. Kausher did not see

any food or water for any of the animals.

{¶ 3} After the pair weaved their back way through the dirty and unkempt barn to the

downed horse, the horse, which Dr. Kausher characterized as "severely, severely

underweight," attempted to get up, but was unable to move and eventually collapsed back to

the ground. Due to its poor condition and inability to move, Dr. Kausher recommended the

horse be euthanized. According to Dr. Kausher, Kenneth then asked what he thought was

wrong with the horse, to which Dr. Kausher responded that the horse was being starved.

Without any protest, Dr. Kausher then euthanized the downed horse. After euthanizing the

animal, Dr. Kausher got back into his truck, drove to the end of the driveway, and called

police to make a report of animal cruelty.

{¶ 4} After making the call to police, Julie Flanagan, a deputy dog warden for Butler

County and humane agent for the Butler County Humane Society, spoke with Dr. Kausher.

During their conversation, Deputy Flanagan informed Dr. Kausher that she knew of the

Morgans and had received complaints regarding their horses before. Deputy Flanagan then

contacted Julie Holmes, the chief dog warden for Butler County and chief humane agent with

the Butler County Humane Society, who told Deputy Flanagan to speak with the prosecutor

and ask about getting a search warrant for the Morgans' property. After speaking with the

prosecutor, Deputy Flanagan requested a search warrant from the Butler County Area I

Court. The court issued the search warrant for the Morgans' property later that day.

{¶ 5} After receiving the search warrant, Meg Stephenson, the executive director for
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the Butler County Humane Society, as well as Dr. Kausher, Deputy Flanagan and Chief

Holmes, all went to the Morgans' property to execute the search warrant and evaluate the

only remaining horse still alive on the Morgans' property. During this time, Debora and

Kenneth both came out to the barn and Debora was heard referring to the horses as "her

horses, my horses, our horses," when speaking to the officers executing the search warrant.

The search of the barn revealed very little food and water for the horse – to the point where

the grain bags were covered with dust and cobwebs – and that the remaining horse was on

the verge of death due to starvation. The horse was then removed from the Morgans'

property and placed in the care of the Butler County Humane Society. Since its removal from

the Morgans' care, the horse has made a drastic improvement and has transformed into an

otherwise normal and healthy animal.

{¶ 6} On April 1, 2013, Deputy Flanagan filed two complaints in the Butler County

Area I Court charging both Debora and Kenneth with cruelty to animals in violation of R.C.

959.13(A)(1), a second-degree misdemeanor. The Morgans, who appeared pro se

throughout the proceedings below, then filed a motion to suppress arguing the search

warrant was invalid. The trial court denied the motion. A one-day jury trial was then held on

July 29, 2013. Following the jury trial, the Morgans were found guilty as charged. The trial

court then sentenced Debora to 90 days in jail, all of which was suspended, as well as three

years of community control and a fine of $700. The trial court also sentenced Kenneth to 90

days in jail, with only 60 days suspended, three years of community control and a $700 fine.

{¶ 7} The Morgans, now represented by counsel, appeal from their respective

convictions, raising seven assignments of error for review. For ease of discussion, the

Morgans' third, fourth and fifth assignments of error will be addressed out of order.

{¶ 8} Assignment of Error No. 5:

{¶ 9} THE TRIAL COURT IMPROPERLY DENIED APPELLANTS' MOTION TO
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SUPPRESS WHEN IT FOUND THAT THE SEARCH WARRANT WAS PROPERLY

ISSUED.

{¶ 10} In their fifth assignment of error, the Morgans argue the trial court erred by

denying their motion to suppress because the search warrant issued in this case was not

authorized upon the request of a "law enforcement officer" as required by Crim.R. 41(A). We

disagree.

{¶ 11} Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 15,

citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When considering a

motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the

evidence in order to resolve factual questions and evaluate witness credibility. State v.

Johnson, 12th Dist. Butler No. CA2012-11-235, 2013-Ohio-4865, ¶ 14; State v. Eyer, 12th

Dist. Warren No. CA2007-06-071, 2008-Ohio-1193, ¶ 8. In turn, when reviewing the denial

of a motion to suppress, this court is bound to accept the trial court's findings of fact if they

are supported by competent, credible evidence. State v. Durham, 12th Dist. Warren No.

CA2013-03-023, 2013-Ohio-4764, ¶ 14; State v. Oatis, 12th Dist. Butler No. CA2005-03-074,

2005-Ohio-6038, ¶ 10. "An appellate court, however, independently reviews the trial court's

legal conclusions based on those facts and determines, without deference to the trial court's

decision, whether as a matter of law, the facts satisfy the appropriate legal standard." State

v. Thomas, 12th Dist. Warren No. CA2012-10-096, 2013-Ohio-3411, ¶ 18, quoting State v.

Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353, ¶ 12.

{¶ 12} Pursuant to Crim.R. 41(A), "[a] search warrant authorized by this rule may be

issued by a judge of a court of record to search and seize property located within the court's

territorial jurisdiction, upon the request of a prosecuting attorney or a law enforcement

officer." As defined by Crim.R. 2(J), "law enforcement officer" means:
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a sheriff, deputy sheriff, constable, municipal police officer,
marshal, deputy marshal, or state highway patrolman, and also
means any officer, agent, or employee of the state or any of its
agencies, instrumentalities, or political subdivisions, upon whom,
by statute, the authority to arrest violators is conferred, when the
officer, agent, or employee is acting within the limits of statutory
authority.

"R.C. 1717.06 gives [humane] agents of county humane societies the authority to prosecute

and arrest any person found in violation of cruelty to animals." State v. Balduff, 6th Dist.

Huron No. H-92-029, 1993 WL 24483, *3 (Feb. 5, 1993). In turn, those same humane

agents would constitute "law enforcement officers" authorized to request and execute a

search warrant under Crim.R. 41(A). Id.

{¶ 13} As noted above, the Morgans argue the search warrant was invalid because

Deputy Flanagan's credentials do not meet the statutory requirements necessary for her to

be a qualified humane agent, and therefore, she is not a "law enforcement officer" authorized

to request and execute a search warrant under Crim.R. 41(A). In reaching this conclusion,

the Morgans cite to a provision found in R.C. 1717.06, which states, in pertinent part, the

following:

In order to qualify for appointment as a humane agent under this
section, a person first shall successfully complete a minimum of
twenty hours of training on issues relating to the investigation
and prosecution of cruelty to and neglect of animals. The
training shall comply with rules recommended by the peace
officer training commission under section 109.73 of the Revised
Code and shall include, without limitation, instruction regarding
animal husbandry practices as described in division (A)(12) of
that section. A person who has been appointed as a humane
agent under this section prior to the effective date of this
amendment may continue to act as a humane agent for a period
of time on and after the effective date of this amendment without
completing the training. However, on or before December 31,
2004, a person who has been appointed as a humane agent
under this section prior to the effective date of this amendment
shall successfully complete the training described in this
paragraph and submit proof of its successful completion to the
appropriate appointing mayor or probate judge in order to
continue to act as a humane agent after December 31, 2004.
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(Emphasis added.)

{¶ 14} Although acknowledging Deputy Flanagan had completed the required

minimum 20 hours of training prior to the December 31, 2004 deadline, the Morgans allege

Deputy Flanagan is not a qualified humane agent because she never testified at the

suppression hearing "that she provided her certificate to the appointing mayor or probate

court as required by law."1 Deputy Flanagan, however, did testify during the suppression

hearing that she provided a certificate indicating she had successfully completed the

necessary training to her supervisor – the former chief dog warden – to submit to the probate

court. The Morgans did not provide any evidence indicating the certificate was not then

properly submitted to the probate court, nor did they provide any other evidence to call into

question whether Deputy Flanagan is a qualified humane agent. When ruling on the

Morgans' motion to suppress, the trial court found Deputy Flanagan's testimony was credible

and that she "was a properly appointed humane agent" who was "authorized by O.R.C. §

1717.06 to seek and execute the search warrant" in compliance with Crim.R. 41(A). As this

finding was supported by competent, credible evidence, we find no error in the trial court's

decision.

{¶ 15} That said, even if we were to find a violation of Crim.R. 41(A) occurred, which

we do not, such a violation would merely constitute a technical, "non-fundamental" violation

of the rule. As this court has stated previously, "[a]bsent a legislative mandate requiring its

application, the exclusionary rule will not be applied to statutory violations falling short of

constitutional violations." State v. Turner, 12th Dist. Butler No. CA91-10-165, 1992 WL

121685, *2 (June 1, 1992), citing State v. Myers, 26 Ohio St.2d 190, 196 (1971); see, e.g.,

1. Contrary to the Morgans' claims otherwise, we note that R.C. 1717.06 does not specifically require a
"certificate" to be submitted to the appointing mayor or probate judge. Rather, the statute merely requires "proof"
that the training was successfully completed.
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State v. Wilmoth, 22 Ohio St.3d 251, 263-264 (1986) (finding the failure to comply with the

Crim.R. 41(C) requirement that a written affidavit be submitted to obtain a search warrant

was not "a violation of constitutional magnitude" requiring suppression where there had been

no evidence of bad faith on the part of the police or prejudice to the defendant). In turn, as

this alleged violation constitutes, at worst, a technical, "non-fundamental" violation of Crim.R.

41(A), the exclusionary rule simply does not apply here. This is particularly true given the

fact that the Morgans have failed to provide any evidence that they were somehow

prejudiced by this alleged violation. Therefore, we find no error in the trial court's decision

denying the Morgans' motion to suppress. Accordingly, the Morgans' fifth assignment of

error is overruled.

{¶ 16} Assignment of Error No. 3:

{¶ 17} THERE WAS INSUFFICIENT EVIDENCE TO CONVICT APPELLANTS OF

ANIMAL CRUELTY UNDER R.C. §959.13(A)(1).

{¶ 18} In their third assignment of error, the Morgans argue their respective

convictions for cruelty to animals were based on insufficient evidence. We disagree.

{¶ 19} Whether the evidence presented at trial is legally sufficient to sustain a verdict

is a question of law. State v. Hoskins, 12th Dist. Warren No. CA2013-02-013, 2013-Ohio-

3580, ¶ 16, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). When reviewing the

sufficiency of the evidence underlying a criminal conviction, an appellate court examines the

evidence in order to determine whether such evidence, if believed, would convince the

average mind of the defendant's guilt beyond a reasonable doubt. State v. Kinsworthy, 12th

Dist. Warren No. CA2013-06-053, 2014-Ohio-1584, ¶ 52. The 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. Smith, 12th Dist. Warren Nos. CA2012-02-017 and CA2012-02-018, 2012-
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Ohio-4644, ¶ 25, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the

syllabus. In other words, "the test for sufficiency requires a determination as to whether the

state has met its burden of production at trial." State v. Boles, 12th Dist. Brown No. CA2012-

06-012, 2013-Ohio-5202, ¶ 34, citing State v. Wilson, 12th Dist. Warren No. CA2006-01-007,

2007-Ohio-2298, ¶ 33.

{¶ 20} The Morgans were both convicted of cruelty to animals in violation of R.C.

959.13(A)(1), a second-degree misdemeanor, which provides no person shall "[t]orture an

animal, deprive one of necessary sustenance, unnecessarily or cruelly beat, needlessly

mutilate or kill, or impound or confine an animal without supplying it during such confinement

with a sufficient quantity of good wholesome food and water." The culpability required to

support a violation of R.C. 959.13(A)(1) is recklessness. State v. Ham, 3d Dist. Wyandot No.

16-09-01, 2009-Ohio-3822, ¶ 39, citing State v. Bergen, 121 Ohio App.3d 459, 461 (1st

Dist.1997). As defined by R.C. 2901.22(C), a person acts recklessly "when, with heedless

indifference to the consequences, he perversely disregards a known risk that his conduct is

likely to cause a certain result or is likely to be of a certain nature."

{¶ 21} Here, the Morgans initially argue their respective convictions must be reversed

because the state failed to prove there was an insufficient amount of good wholesome food

and water for the horse. However, although there was some evidence that the horse had

access to a bale of hay and water on the afternoon of March 25, 2013, the overwhelming

evidence indicates the horse was extremely thin and severely underweight to the point where

it was on the verge of death due to starvation.

{¶ 22} For instance, Dr. Krausher, a local veterinarian for over 20 years, testified that

his assessment of the horse revealed the animal was "very, very thin," appeared emaciated

and was on the verge of death. Dr. Krausher also testified that the horse's condition was

critical, making the animal more susceptible to disease and the potential to die from
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starvation. In addition, according to Dr. Krausher, "it took a long time" for the horse to

become so malnourished. However, since being removed from the Morgans' care, the horse

has "definitely improved."

{¶ 23} In addition, Meg Stephenson, the executive director for the Butler County

Humane Society, testified the horse has drastically improved since its removal from the

Morgans' property. As Stephenson testified regarding her own observations of the horse:

What I saw on March 25th was a very thin horse and isolated
and didn't really have much life in it and much energy to it.

The horse that I saw this morning is very different. It's very filled
out. You can no longer see the ribs. And the hipbones do not
protrude. The horse has a shine to its coat, and the horse is
affiliating and it's up to the front of the stall, greeting – has an
energy to it. It's a very different energy coming from the horse
now than what I saw on the 25th.

Moreover, when asked what it took to get the horse into that condition, Stephenson testified

that "[a]ll that it has taken is food to get the horse to be in the condition it is now."

{¶ 24} Furthermore, Chief Holmes, a certified horse abuse investigator, testified that

although there was hay in the horse's stall, the hay had likely only been there for a day or

less. Chief Holmes also testified that while there was some grain found in the barn, the

amount of grain available would be only a fraction of what would normally be given during a

single morning feeding. Chief Holmes' testimony also revealed that the grain bag was

covered in dust and cobwebs signifying it had not been moved in some time.

{¶ 25} Furthermore, Chief Holmes testified there were teeth marks on the horse's stall

indicating the horse had been chewing on the wood – a behavioral issue referred to as

"cribbing" – that starved horses tend to exhibit if they are not getting enough food. As Chief

Holmes testified, "[t]hey will grab hold of [the wood], and they will actually suck in the air and

it expands into their belly, and kind of gives them that fat full feeling when they are hungry."

Chief Holmes also testified that the horse's testicles rescinded into its body, something which
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is generally seen only in starved horses.

{¶ 26} Continuing, when asked her expert opinion regarding the cause of the horse's

poor condition, Chief Holmes testified as follows:

Q: Now, viewing this horse, do you have an opinion as to the
cause of its thinness?

A: Yes.

Q: What is that opinion?

A: My opinion is that it hasn’t been receiving good, sufficient
quantities of hay and water.

Q: And do you have an opinion as to how long it's been since it
was receiving good quality food?

A: Yes. I would say months, at least two months.

According to Chief Holmes, now that the horse has been removed from the Morgans'

property and receiving the proper amounts of food and water, the horse "looks 100 times

different back to what he normally looks in a matter of two or three months." The state also

introduced a number of pictures of the horse evidencing the horse's radical transformation

since being removed from the Morgans' property.

{¶ 27} After a thorough review of the record, we find the state presented

overwhelming, uncontroverted evidence indicating the horse was on the verge of death due

to the lack of sufficient food and water while confined to the Morgans' property and under the

Morgans' care. See, e.g., State v. Nichols, 4th Dist. Hocking No. 07AP10, 2007-Ohio-1327, ¶

16-19 (finding cruelty to animals conviction was supported by sufficient evidence where state

presented evidence indicating appellant's horses were on the verge of starvation); State v.

Sheets, 112 Ohio App.3d 1, 9 (4th Dist.1996) (finding cruelty to animals conviction was

supported by sufficient evidence where state presented evidence indicating appellant's horse

had not received sufficient food and was noticeably underweight). Again, since its removal

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from the Morgans' property, the horse has thrived and undergone a near complete

transformation into a normal and otherwise healthy animal. Therefore, as it relates to any

claim that the state failed to prove that there was an insufficient amount of good wholesome

food and water for the horse, the Morgans' argument is without merit and overruled.

{¶ 28} Next, as it relates solely to her, Debora argues her conviction must be reversed

because "there was no testimony that she owned or cared for the horse." The state,

however, did provide evidence that when Kenneth was speaking with Dr. Krausher on the

phone on the morning of March 25, 2013, Dr. Kausher testified that he heard a female voice

in the background say the downed horse was between 10 and 15 years old. The state also

provided evidence that Debora referred to the horses as "her horses, my horses, our horses,"

when talking to officers during the execution of the search warrant.

{¶ 29} In addition, Chief Holmes testified that based on her interactions with the

Morgans, she was under the impression that Debora was a co-owner of the horses.

Moreover, although at trial she claimed to be a recluse who was confined to the house due to

a medical condition, Debora explicitly testified that she had taken care of horses in the past

and was able to walk, and in fact did walk, to the barn where the horse was kept. Viewing

this evidence in a light most favorable to the state, we find the state did provide sufficient

evidence to uphold Debora's cruelty to animals conviction. Debora's claim otherwise is

therefore without merit and overruled.

{¶ 30} Accordingly, as the state provided sufficient evidence to support their

convictions, and having found no merit to either of the arguments advanced by the Morgans

herein, the Morgans' third assignment of error is overruled.

{¶ 31} Assignment of Error No. 4:

{¶ 32} THE JURY'S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.
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{¶ 33} In their fourth assignment of error, the Morgans argue their respective

convictions for cruelty to animals were against the manifest weight of the evidence. We

disagree.

{¶ 34} A manifest weight of the evidence challenge examines the "inclination of the

greater amount of credible evidence, offered at a trial, to support one side of the issue rather

than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶

14. To determine whether a conviction is against the manifest weight of the evidence, the

reviewing court must look at the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether in resolving the

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. State v.

Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. "While appellate

review includes the responsibility to consider the credibility of witnesses and weight given to

the evidence, 'these issues are primarily matters for the trier of fact to decide.'" State v.

Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 81, quoting State v.

Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, ¶ 26. An appellate court,

therefore, will overturn a conviction due to the manifest weight of the evidence only in

extraordinary circumstances when the evidence presented at trial weighs heavily in favor of

acquittal. Id., citing Thompkins, 78 Ohio St.3d at 387.

{¶ 35} The Morgans argue their respective convictions must be reversed because the

jury "clearly relied on their emotions in this case and not on the evidence presented to them."

However, although hearing testimony and seeing pictures regarding the horse's emaciated

condition may have stirred up some emotions in the jury, as noted above, the state presented

overwhelming, uncontroverted evidence that the horse was on the verge of death due to the

lack of sufficient food and water while confined to the Morgans' property and under the
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Morgans' care. In turn, the jury's findings of guilt simply cannot be said to be against the

manifest weight of the evidence. See, e.g., State v. Kilburn, 12th Dist. Warren No. CA96-12-

130, 1998 WL 142412, *7 (Mar. 30, 1998) (finding cruelty to animals conviction was not

against the manifest weight of the evidence where the state presented evidence indicating

appellants' horses and other animals "had been without food and water for an unknown and

an unreasonable length of time"); State v. Leslie, 4th Dist. Hocking Nos. 10CA17 and

10CA18, 2011-Ohio-2727, ¶ 19-23 (finding cruelty to animals conviction was not against the

manifest weight of the evidence where the state presented evidence indicating appellants'

horse and goats were not provided with sufficient food and water); State v. Dixon, 6th Dist.

Huron No. H-05-021, 2006-Ohio-2114, ¶ 23 (finding cruelty to animals conviction was not

against the manifest weight of the evidence where the state presented evidence indicating

appellant's horse was "deprived of food for an extended period of time").

{¶ 36} Moreover, although the Morgans alleged during trial that the horse's frail

condition could be attributed to poisoning or foul play by some unknown third party, the

Morgans provided absolutely no evidence to support such claims. "[A] conviction is not

against the manifest weight of the evidence simply because the jury believed the prosecution

testimony." State v. Guzzo, 12th Dist. Butler No. CA2003-09-232, 2004-Ohio-4979, ¶ 13,

quoting State v. Zentner, 9th Dist. Wayne No. 02CA0040, 2003-Ohio-2352, ¶ 21. Therefore,

because their respective convictions were not against the manifest weight of the evidence,

and finding no merit to either of the arguments advanced by the Morgans herein, the

Morgans' fourth assignment of error is overruled.

{¶ 37} Assignment of Error No. 1:

{¶ 38} APPELLANTS' CONSTITUTIONAL RIGHTS TO A FAIR TRIAL WERE

VIOLATED DUE TO THE ADMISSION OF IMPROPER EVIDENCE OF PRIOR BAD ACTS.

{¶ 39} In their first assignment of error, the Morgans argue the trial court erred by
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admitting so-called "other acts" evidence contrary to Evid.R. 404(B) as it relates to two prior

allegations of animal cruelty levied against them in regards to their horses in 2008 and 2010.

We disagree.

{¶ 40} "Evidence that an accused committed a crime other than the one for which he

is on trial is not admissible when its sole purpose is to show the accused's propensity or

inclination to commit crime or that he acted in conformity with bad character." State v.

Carlton, 9th Dist. Lorain No. 12CA010219, 2013-Ohio-2788, ¶ 19, quoting State v. Williams,

134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 15. In turn, pursuant to Evid.R. 404(B), evidence of

other crimes, wrongs, or acts is not admissible to prove the character of a person in order to

show that a person acted in conformity therewith on a particular occasion. State v. Hart, 12th

Dist. Warren No. CA2008-06-079, 2009-Ohio-997, ¶ 11. Such evidence, however, is

permitted for other purposes, including proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, of the absence of mistake or accident. State v. Thomas, 12th Dist.

Butler No. CA2012-11-223, 2013-Ohio-4327, ¶ 22.

{¶ 41} Generally, "[t]he admission of other-acts evidence under Evid.R. 404(B) lies

within the broad discretion of the trial court, and a reviewing court should not disturb

evidentiary decisions in the absence of an abuse of discretion that has created material

prejudice." State v. Vore, 12th Dist. Warren No. CA2011-08-093, 2012-Ohio-2431, ¶ 40. In

this case, however, the Morgans never raised any objection to this evidence at trial, thereby

waiving all but plain error on appeal. State v. Cox, 12th Dist. Clermont No. CA2008-03-028,

2009-Ohio-928, ¶ 51. Pursuant to Crim.R. 52(B), an alleged error constitutes plain error only

if the error is obvious and but for the error, the outcome of the trial clearly would have been

different. State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 53 (12th Dist.),

citing State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 108. Notice of plain error is to

be taken with the utmost caution, under exceptional circumstances, and only to prevent a
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manifest miscarriage of justice. State v. Freeze, 12th Dist. Butler No. CA2011-11-209, 2012-

Ohio-5840, ¶ 30.

{¶ 42} The Morgans argue the state improperly elicited testimony regarding the two

prior allegations of animal cruelty levied against them "to show that their current actions were

in conformity with their prior bad acts." This evidence, however, was not used in such a

fashion. Rather, we find the alleged "other acts" evidence was properly used to prove,

among other things, their knowledge and the absence of mistake or accident. The admission

of this evidence was not error, let alone plain error, requiring their respective convictions be

reversed. In so holding, we once again note the fact that the state presented overwhelming,

uncontroverted evidence that the horse was on the verge of death due to the lack of sufficient

food and water while confined to the Morgans' property and under the Morgans' care.

Therefore, the Morgans' first assignment of error is overruled.

{¶ 43} Assignment of Error No. 2:

{¶ 44} THE TRIAL COURT VIOLATED APPELLANTS' RIGHT TO A FAIR TRIAL

WHEN IT DID NOT GIVE A LIMITING INSTRUCTION IN REGARDS TO PRIOR BAD ACTS

EVIDENCE THAT WAS PRESENTED TO THE JURY.

{¶ 45} In their second assignment of error, the Morgans argue the trial court erred by

failing to provide a limiting instruction to the jury in regards to the so-called "other acts"

evidence addressed above. The Morgans, however, never requested the trial court to

provide a limiting instruction to the jury in regards to this evidence, thereby once again

waiving all but plain error on appeal. As noted previously, pursuant to Crim.R. 52(B), an

alleged error constitutes plain error only if the error is obvious and but for the error, the

outcome of the trial clearly would have been different. Blankenburg, 2012-Ohio-1289 at ¶ 53,

citing Lang, 2011-Ohio-4215 at ¶ 108.

{¶ 46} Based on the overwhelming evidence of their guilt, we find the trial court's
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failure to provide a limiting instruction does not rise to the level of plain error. In turn,

although we find it may have been better practice for the trial court to provide the jury with a

limiting instruction as the Morgans suggest, we simply cannot say that the outcome of the

trial would have been different. Rather, the trial court's failure to provide the jury with a

limiting instruction was, at worst, harmless error. A finding of harmless error is appropriate

where there is "overwhelming evidence of guilt" or "some other indicia that the error did not

contribute to the conviction." State v. Sims, 12th Dist. Butler No. CA2007-11-300, 2009-

Ohio-550, ¶ 34, quoting State v. Ferguson, 5 Ohio St.3d 160, 166 (1983), fn. 5. Therefore,

the Morgans' second assignment of error is overruled.

{¶ 47} Assignment of Error No. 6:

{¶ 48} APPELLANTS' FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A

FAIR TRIAL WERE VIOLATED BY PROSECUTORIAL MISCONDUCT.

{¶ 49} In their sixth assignment of error, the Morgans argue the state engaged in

prosecutorial misconduct during its closing argument. We disagree.

{¶ 50} The state is entitled to a certain degree of latitude in making its concluding

remarks. State v. Layne, 12th Dist. Clermont No. CA2009-07-043, 2010-Ohio-2308, ¶ 58. A

court will find prosecutorial misconduct only when the remarks made during closing were

improper and those improper remarks prejudicially affected substantial rights of the

defendant. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, ¶ 62. "The focus of an

inquiry into allegations of prosecutorial misconduct is upon the fairness of the trial, not upon

the culpability of the prosecutor." State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-

Ohio-4769, ¶ 56, citing State v. Vanloan, 12th Dist. Butler No. CA2008-10-259, 2009-Ohio-

4461, ¶ 32.

{¶ 51} A finding of prosecutorial misconduct will not be grounds for reversal unless the

defendant has been denied a fair trial because of the prosecutor's prejudicial remarks. State
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v. English, 12th Dist. Butler No. CA2013-03-048, 2014-Ohio-441, ¶ 55, citing Layne at ¶ 60.

For a prosecutor's closing argument to be prejudicial, the remarks must be "so inflammatory

as to render the jury's decision a product solely of passion and prejudice." State v. Kirkland,

Slip Opinion No. 2014-Ohio-1966, ¶ 84, quoting State v. Williams, 23 Ohio St.3d 16, 20

(1986). "In order to determine whether the remarks were prejudicial, the prosecutor's closing

argument is reviewed in its entirety." State v. Tucker, 12th Dist. Butler No. CA2010-10-263,

2012-Ohio-139, ¶ 43; State v. Treesh, 90 Ohio St.3d 460, 464 (2001).

{¶ 52} The Morgans did not object to the prosecutor's alleged improper comments

during the state's closing argument. "A failure to object to alleged prosecutorial misconduct

waives all but plain error." State v. Lamb, 12th Dist. Butler Nos. CA2002-07-171 and

CA2002-08-192, 2003-Ohio-3870, ¶ 13. "Prosecutorial misconduct rises to the level of plain

error if it is clear the defendant would not have been convicted in the absence of the

improper comments." State v. Israel, 12th Dist. Butler No. CA2010-07-170, 2011-Ohio-1474,

¶ 43.

{¶ 53} The Morgans take exception to the following comment made by the state during

its rebuttal closing argument:

You are allowed to use your common sense in making your
assessment, and it is when you are looking at these pictures of
this horse, you see a horse that has been starved, you have to
make a finding of guilty.

According to the Morgans, the state's comment was a misstatement of the law because

"starvation or the appearance of starvation" is not an element of the offense of cruelty to

animals in violation of R.C. 959.13(A)(1). However, although we agree the word "starvation"

is not made a part of the offense, to "deprive of necessary sustenance" certainly is. The

statute also makes it unlawful for anyone to "impound or confine an animal without supplying

it during such confinement with a sufficient quantity of good wholesome food and water."

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{¶ 54} As defined by Merriam-Webster's Online Dictionary and Thesaurus, the word

"starvation" means "suffering or death caused by having nothing to eat or not enough to eat."

The term "starve" has also been defined as "to deprive of nourishment." Webster's Third

New International Dictionary (1993). The state's comment during its rebuttal closing

argument that the horse "has been starved" is not a misstatement of the law, nor did such

comment have the potential to confuse or mislead the jury in any way. Rather, this is merely

a reasonable comment based on the evidence presented during the state's case-in-chief.

Therefore, the Morgans' first argument is without merit and overruled.

{¶ 55} The Morgans also take exception to the state asking the jury to use its common

sense when the case focused primarily on expert testimony. Yet, contrary to the Morgans'

claim otherwise, the request for the jury to use its common sense has been determined to be

neither prosecutorial misconduct nor plain error. See State v. Betts, 8th Dist. Cuyahoga No.

88607, 2007-Ohio-5533, ¶ 83, citing Toledo v. Moore, 6th Dist. Lucas No. L-02-1288, 2003-

Ohio-2362, ¶ 28; see also United States v. Ahee, 5 Fed.Appx. 342, 356 (6th Cir.2001)

(finding prosecutor's statement asking the jury to use its common sense in evaluating the

case during closing argument was "well within the bounds of acceptable argument"). The

Morgans' second argument is therefore likewise without merit and overruled.

{¶ 56} Finally, the Morgans argue the state improperly "played on the jurors' emotions"

by requesting the jury to review the pictures of the horse. A prosecutor may not make

excessively emotional arguments tending to inflame the jury's sensibilities. State v. Israel,

12th Dist. Butler No. CA2010-07-170, 2011-Ohio-1474, ¶ 45, citing State v. Tibbetts, 92 Ohio

St.3d 146, 168 (2001). Nevertheless, although we acknowledge that the pictures of the

horse could evoke an emotional response from the jury, this evidence clearly showed the

animal in an emaciated condition while confined to the barn on the Morgans' property and in

the Morgans' care. The state should not be precluded from referencing evidence properly
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submitted as part of its case-in-chief merely because it may elicit an emotional response from

the jury. To hold otherwise would place an unnecessary burden on the state when

attempting to prosecute not only claims alleging animal cruelty, but a litany of other offenses

as well, even though the probative value of the evidence does not substantially outweigh the

danger of unfair prejudice under Evid.R. 403. Therefore, the Morgans' third argument is also

without merit and overruled.

{¶ 57} Accordingly, having found no merit to any of the three arguments advanced by

the Morgans under their sixth assignment of error, the Morgans' sixth assignment of error is

overruled.

{¶ 58} Assignment of Error No. 7:

{¶ 59} APPELLANTS WERE DEPRIVED A FAIR TRIAL DUE TO A COMBINATION

OF ERRORS THAT PERMEATED THE TRIAL.

{¶ 60} In their seventh assignment of error, the Morgans argue their respective

convictions must be reversed pursuant to the cumulative error doctrine. "According to the

cumulative error doctrine, 'a conviction will be reversed where the cumulative effect of errors

in a trial deprives a defendant of the constitutional right to a fair trial even though each of the

numerous instances of trial court error does not individually constitute a cause for reversal.'"

State v. McClurkin, 12th Dist. Butler No. CA2007-03-071, 2010-Ohio-1938, ¶ 105, quoting

State v. Garner, 74 Ohio St.3d 49, 64 (1995). Because we have found that all of their

assignments of error are without merit and do not rise to the level of prejudicial error, the

Morgans were not deprived of a fair trial and the cumulative error doctrine is inapplicable

here. See State v. Russell, 12th Dist. Butler No. CA2012-03-066, 2013-Ohio-1381, ¶ 65.

Therefore, the Morgans' seventh assignment of error is likewise without merit and overruled.

{¶ 61} Judgment affirmed.

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RINGLAND, P.J., and HENDRICKSON, J., concur.

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