IN THE GALLIPOLIS MUNICIPAL COURT OF GALLIA COUNTY, OHIO STATE OF OHIO, CASE No. 14 CRB 157 A-L PLAINTIFF, -VS- JASON HARRIS, DEFENDANT. PLAINTIFF S POST-TRIAL BRIEF Now comes the State of Ohio, by and through the undersigned attorney, and offers the following memorandum of facts and law following the trial of this matter held October 28, 2014, pursuant to the Court s orders on the same date. MEMORANDUM The Defendant was charged with counts A-L. All of the charges are substantially similar in nature, alleging violations of O.R.C. 959.131(C)(1), varying only in the dates and each charge representing a different animal. O.R.C. 959.131(C)(1) states in pertinent part: (C) No person who confines or who is the custodian or caretaker of a companion animal shall negligently do any of the following: (1) Commit any act 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 The State has proven each and every element of the crimes alleged through testimony and exhibits provided at the trial hearing by the officers, the expert witnesses, and the prior recorded statements of the Defendant. A. Venue Is Correct. The State has proven venue beyond a reasonable doubt. Both the officers and the prior recorded statements of the Defendant make clear that the actions of the Defendant occurred in Gallia County as alleged in charges A-L. The Court should find that venue is correct. B. The Defendant Is the Custodian or Caretaker at the Times Alleged. The State has proven beyond a reasonable doubt that the Defendant was the custodian or caretaker at the times alleged. The admissions contained in the Defendant s recorded statements and the euthanasia records of the animal shelter he provided to the officers make clear that he was employed by the Gallia County Animal Shelter as Assistant Dog Warden and that all of the acts alleged in charges A-L occurred during the time period of that employment. The
terms custodian or caretaker are not defined in O.R.C. 959. The Court should apply the common definitions as one entrusted to guard or keep property and one that gives physical or emotional care, respectively. 1 The Court should find that the State has satisfied this portion of the statute beyond a reasonable doubt. C. The Animals Involved In These Cases Are Companion Animals. The statute defines companion animals in pertinent part as any dog regardless of where it is kept. The admissions contained in the Defendant s recorded statements and the euthanasia records of the animal shelter he provided to the officers make clear that all of the animals involved in the acts of the Defendant were dogs. The Court should find that the State has satisfied this portion of the statute beyond a reasonable doubt. D. The Defendant Committed Acts By Which Pain or Suffering Was Caused, Permitted, Or Allowed To Continue. The State has shown beyond a reasonable doubt that the Defendant committed acts by which pain or suffering was caused, permitted, or allowed to continue to the animals in these cases. The Defendant s own recorded statements and the euthanasia records of the animal shelter he provided to the officers contain unambiguous admissions that he committed certain acts as alleged in charges A-L. Specifically, the Defendant confessed that he injected a solution of sodium pentobarbital into the animals in these cases. He admitted that he did this by injecting the solution into the meaty part of the hip or shoulder. 2 Intramuscular (into the muscle) or subcutaneous (under the skin) injections of sodium pentobarbital are specifically listed as unacceptable practices by the American Veterinary Medical Association and also the American Humane Association because of the high likelihood of pain at the site of the injection. 3 In the State s case in chief, Dr. Hendrickson testified as to the chemical nature of the solution injected into the dogs by the Defendant. He testified emphatically that the intramuscular and subcutaneous injection of sodium pentobarbital were unacceptable practices in his profession of veterinary medicine. He stated that the solution at issue was acidic and that it was a sodium based solution. He stated it would be painful to inject an animal (in the method used by the Defendant) with this solution because of its chemical composition. These statements mirror the conclusions of the American Veterinary Medical Association in their published Euthanasia Guidelines, 2013 Edition which was read into the record by Dr. Hendrickson. They are also the same as the conclusions and guidelines published by the American Humane Association in their 2005 and 2010 Euthanasia Guidelines which were also read into the record. Dr. Hendrickson testified that these were not new conclusions and that these guidelines had been known in his profession for a substantial length of time. The Court must rely on circumstantial evidence in this case because it is the nature of an animal not to be able to testify whether or not it is feeling pain. In short, the Court should weigh the credibility of the witnesses and square their testimony with that of the learned treatises recited into the record. In order to confuse this issue, the Defendant called their own expert 1 Webster s Unabridged Online Dictionary 2 Defendant s Recorded Statement to Officers Werry and Grau 3 AVMA Euthanasia Guidelines, 2013 Edition, and AHA Euthanasia Manuals, 2005 and 2010 Editions, as read into the record by Dr. Hendrickson.
witness, Dr. Dahse, who is also a licensed veterinarian. Dr. Dahse testified that she performed both subcutaneous and intramuscular injections of sodium pentobarbital as part of her euthanasia practices. Dr. Dahse s testimony illustrated that she was completely unaware of both the American Veterinary Medical Association guidelines and the American Humane Association guidelines described above. She did not know of the conclusions of the AVMA concerning the high probability of pain associated with the subcutaneous and intramuscular injection of sodium pentobarbital. She did not know that both the AVMA and AHA had described these methods of injection as unacceptable practices. She did, however, testify that, in the past, she had observed animals react as if they were feeling pain when she administered sodium pentobarbital in the unapproved manner. 4 Although the Defendant himself is not required to testify, he did not produce any evidence to contradict the conclusions of the American Veterinary Medical Association or American Humane Association which had been shared with him prior to the trial in discovery. His expert was completely unaware of the guidelines promulgated by these respected authorities in the field of veterinary medicine. The Court should find that Dr. Hendrickson s testimony was much more credible than that of Dr. Dahse and that Dr. Hendrickson s testimony and the learned treatises in this field clearly point to the finding that the Defendant s actions did cause pain to the animals in these cases. E. The Pain Suffered by the Animals in These Cases Was Unnecessary and Unjustifiable Because Reasonable Remedy or Relief Exists In Regard to the Acts of the Defendant. The State proved beyond a reasonable doubt that the pain suffered by the animals in this case was avoidable. Dr. Hendrickson described the best practices for the use of the sodium pentobarbital solution. He stated that the most preferred method of injection is intravenous (into a vein), followed by intraperitoneal (into the upper abdomen), followed only then by intracardial (into the heart) injection on a sedated or unconscious animal. These are the same procedures codified by law in Ohio R.C. 4729.532. Dr. Hendrickson s testimony greatly clarified these procedures for the Court because he was able to describe all of these procedures in terms of the likelihood of pain associated with each procedure. Dr. Dahse had no knowledge of O.R.C. 4729.532 and testified that she would never perform an intraperitoneal injection of sodium pentobarbital which further casts a substantial cloud on her credibility. Dr. Hendrickson testified that the most preferable method of injection is into a vein because it does not have the same type of nerves as a muscle. He further testified that the same was true of the intraperitoneal injection. He then described the intracardial injection as appropriate only after sedation for the same reason: the high likelihood of pain such an injection would cause to a conscious animal. In summary, Dr. Hendrickson s testimony directly correlates with the order of preference codified in O.R.C. 4729.532. 5 As such, the Court should consider him to be a much more credible witness than Dr. Dahse. 4 Dr. Dahse testified that some animals acted like you cut their arm off and some animals made no discernible response to the injection. 5 O.R.C. 4729.532 states The agent or employee of an animal shelter when using a lethal solution to perform euthanasia on an animal shall use such solution in accordance with the following methods and in the following order of preference:
The Defendant s recorded statement to the investigating officers makes it clear that he did NOT attempt either an intravenous injection or intraperitoneal injection. Furthermore, the Defendant s statements make clear that he did NOT follow the manufacturer s instructions in administering the sodium pentobarbital. Dr. Dahse testified that the manufacturer s instructions on the label of the solution bottle were unambiguous and that there were no manufacturer s instructions whatsoever anywhere for an intramuscular injection. Defendant s statements also make clear that he failed to give the recommended dosage to the animals in these cases. In his statement, Defendant says that, for each of the dogs at issue, he did inject the majority of the recommended dosage of the solution into the muscles of the dogs rather than into the heart muscle saving only about one ml for the killing dose (injection into the heart). Dr. Hendrickson, Dr. Dahse and the manufacturer s instructions all concur in that the correct killing dose was one ml per ten pounds of animal. Because the Defendant did not avail himself of the preferred method of injection, and because the Defendant completely disregarded the instructions promulgated by the solution manufacturer, and because Defendant split the dosage recommended only for the intracardial injection into two separate injections (one for sedating and one for killing) the Court should find that the pain suffered by these animals was unnecessary and unjustifiable because reasonable remedy or relief existed in the form of more preferred methods of injection. F. The Defendant Acted With (at least) the Culpable Mental State Which Is Negligence. Ohio defines negligence in the following manner: A person acts negligently when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that his 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, he fails to perceive or avoid a risk that such circumstances may exist. 6 In the case at bar, the State has shown beyond a reasonable doubt that the Defendant acted negligently in performing the alleged acts by which he caused unnecessary and unjustifiable pain to the animals in these cases when reasonable remedy or relief existed. The Court has more than enough evidence to conclude beyond a reasonable doubt that the Defendant failed to perceive or avoid a risk that his conduct could result in pain to the animals because 1) he didn t follow the plain language on the solution bottle, or 2) give the recommended dose as listed on the bottle, or 3) even attempt to follow the Revised Code s order of preference for the methods of injection. All of these facts were contained in Defendant s own recorded statement and the testimony of his own expert witness. Even someone with no training knows that you should always follow the instructions for administering a controlled substance. This was a substantial lapse of due care. If there are certain codified rules pertaining specifically to the correct procedure for doing a person s job, and a person fails to be aware of those rules, that is a substantial lapse of due care. If a person knows and disregards the codified procedure for performing their job, that is a substantial lapse of due care. If there are multiple respected nationwide organizations of professionals and policymakers in the field in which a person works that issue certain guidelines for best practices in that field, and a person either fails to make themselves aware of or fails to follow those 6 O.R.C. 2901.22(D)
guidelines then that is a substantial lapse of due care. The Court should conclude that the Defendant acted negligently because of a substantial lapse of due care he failed to perceive or avoid the risk that the animals may suffer pain as a result of his conduct. G. The Defendant Did Not Prove that the Acts Alleged Were Performed Within the Scope of His Employment. The Court specifically instructed the attorneys for each party herein to address the question of whether the Defendant was acting in the scope of his employment in regard to the acts alleged. As a preliminary matter, it should be noted by the Court that the Defendant did not offer any affirmative defenses in this case. He elected not to testify and arguments of counsel are not to be taken as facts. No evidence of the scope of his employment is in the record other than the Defendant s recorded statements that he was employed as the Assistant County Dog Warden and that he believed that he had authority to perform euthanasia on the animals in question. There is no evidence concerning the training, if any, received by the Defendant during the period of his employment. There is no evidence concerning whether intramuscular or subcutaneous injection was within the scope of his employment. Because it is axiomatic that the burden of production and persuasion is on the Defendant, the Court should find that he has not met that burden in regards to any affirmative defenses. 7 Besides the basic rule of law as stated above, the I was just following orders argument is NOT a defense recognized in Ohio jurisprudence. The Defendant never put forward ANY defense except the testimony of Dr. Dahse who is utterly incapable of proving the Defendant s available affirmative defenses which would be peculiarly within the knowledge of the accused 8. The only other available defenses are those codified within the statute itself. These include: (1) A companion animal used in scientific research conducted by an institution in accordance with the federal animal welfare act and related regulations; (2) The lawful practice of veterinary medicine by a person who has been issued a license, temporary permit, or registration certificate to do so under Chapter 4741 of the Revised Code; (3) Dogs being used or intended for use for hunting or field trial purposes, provided that the dogs are being treated in accordance with usual and commonly accepted practices for the care of hunting dogs; (4) The use of common training devices, if the companion animal is being treated in accordance with usual and commonly accepted practices for the training of animals; (5) The administering of medicine to a companion animal that was properly prescribed by a person who has been issued a license, temporary permit, or registration certificate under Chapter 4741 of the Revised Code. 9 The Court should find that none of these defenses applies in this case. The Court will find that the provisions contained in Chapter 4741 are not applicable here. 10 There is no evidence that the Defendant ever qualified as holding a license, temporary permit or registration certificate. Furthermore, the Defendant never administered medicine to a companion animal. The term is 7 O.R.C. 2901.05(A) 8 O.R.C. 2901.05(C) 9 O.R.C. 959.131(F) 10 O.R.C. 4741.13 deals with licenses, 4741.14 with temporary permits and 4741.19 with registration certificates
not defined in O.R.C. 959. Most common definitions of the word medicine describe it as a substance taken or administered with beneficial intent or objective thereby distinguishing it from a poison. Dr. Hendrickson testified that there is no known antidote to sodium pentobarbital and that its sole function is for the euthanasia of animals. It does not treat any disease. It does not cure any infirmity. It should not be considered a medicine simply because it is a controlled substance. Furthermore, Defendant never introduced any evidence that the solution he administered to the animals in these cases was prescribed as outlined in O.R.C. 959.131(F)(5). The term prescribe is not defined in the statute but most common definitions attribute the same type of beneficial intent associated with the word medicine. Lastly, the term administering is not defined in the statute. The Court should find that the Defendant never administered medicine because, by his own admission, he did not follow the manufacturer s instructions on the label of the package of sodium pentobarbital. To find that the statute meant to except acts of improperly administering medicine would result in an absurdity. As outlined above, these are the Defendant s burdens, rather than the State s burdens of proof and production and there is no evidence before the Court sufficient to overcome the Defendant s burdens in this regard. H. The Case of State ex rel. Phelps v. Columbiana County Commissioners Is Not Applicable to the Facts of the Case At Bar. In his closing argument, Defendant s counsel cited the case of State ex rel. Phelps v. Columbiana County Commissioners 125 Ohio App.3d 414 (Seventh App. Dist. 1998). That case dealt exclusively with whether or not the Columbiana County Animal Shelter could use a carbon monoxide chamber to euthanize dogs. The Phelps court narrowly tailored its opinion to the restrictions found in O.R.C. 955. The statute at issue before this Court, O.R.C. 959.131, was not discussed at all. Furthermore, O.R.C. 955 contains only administrative directives aimed at the Board of the County Commission regarding their duties with respect to the functioning of the county animal shelter. O.R.C. 959.131 is a criminal statute. The case cited by Defendant is simply not applicable. I. Conclusion. For all of the reasons stated above, the Court should find the Defendant guilty. Respectfully Submitted, Adam R. Salisbury, Esq. OHIO 0079567 518 2 nd Avenue Gallipolis, OH 45631 Gallipolis City Solicitor