Attorney Jerry Phillips, left, sought acquittal of former dog pound employee Aaron Nova, charged in Toledo Municipal Court with animal cruelty for allegedly throwing a dog against a kennel.
THE BLADE/AMY E. VOIGT
A former Lucas County dog pound worker fired from his position for allegedly putting a dog in a chokehold and then throwing it against a kennel was acquitted of an animal cruelty charge on Tuesday in Toledo Municipal Court.
Midway through the animal-cruelty trial for Lake Township resident Aaron Nova and before calling witnesses, defense attorney Jerome Phillips motioned that the prosecutor had not established that the defendant's actions met the elements of the offense for which he was charged.
Judge Timothy Kulhman read the statute Mr. Nova was charged under and then stated that he did not believe Mr. Nova's behavior rose to the level of animal cruelty, mainly because there was no evidence that the animal was injured, and granted Mr. Phillips' request for dismissal.
“Given what I saw in the video and that the dog was not injured, I didn’t think that he committed an act of cruelty,” Judge Kuhlman said during a phone interview after the acquittal. “Cruelty is something more than ‘not being nice.’ To be criminal, it has to be something more than that. Clearly, an injury would have provided evidence of that.”
The Ohio Revised Code section Mr. Nova was charged under states that no person who confines or who is the custodian or caretaker of a companion animal shall negligently do any of the following: Torture, torment, needlessly mutilate or maim, cruelly beat, poison, needlessly kill, or commit an act of cruelty against the companion animal.
The definition of cruelty is given in a related section, and states that: “‘Cruelty,’ ‘torment,’ and ‘torture’ include any act, omission, or neglect by which unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue, when there is a reasonable remedy or relief.”
Judge Kuhlman said the prosecution did not present evidence “beyond a reasonable doubt that there was pain and suffering.”
“As to pain and suffering, if you have a human victim, you can put the human victim on the stand and they can discuss it,” he said. “With an animal, you can’t do that. There has to be evidence. If this animal was injured, it would have changed the case.”
Mr. Nova was fired from the Lucas County Dog Warden’s office after being charged Aug. 7 with misdemeanor animal cruelty after a video surfaced that showed him allegedly picking up a 46-pound Labrador retriever and hound mix named Marbles in a chokehold, slamming it against a kennel door, and throwing it into a kennel at the shelter.
He pleaded not guilty to the charge.
“This isn’t me saying what is shown on the video, is that an OK way to act or is this not an OK way to act,” Judge Kuhlman said. “That wasn’t the decision I had the responsibility to make. My decision was based on looking at the statute.”
Mr. Nova, of 2635 Moline-Martin Rd., had been employed for six years at the pound. On the advice of his attorney, Mr. Nova declined comment after the acquittal pending the outcome of an appeals court case concerning whether the charge against Mr. Nova constituted a probation violation. At the time of the animal cruelty charge, Mr. Nova was on probation for a domestic-violence conviction in which he received a six-month suspended jail sentence.
During the city's case, Assistant Prosecutor Sharon Gaich called two witnesses, Lucas County Dog Warden Julie Lyle, who fired Mr. Nova, and Toledo Area Humane Society Cruelty Investigator Gene Boros.
During the cross-examination of Ms. Lyle and Mr. Boros, Mr. Phillips questioned them about the use of choke collars that are available for use by dog owners to control their dogs. Both said using such collars does not constitute cruelty.
Mr. Phillips argued that Mr. Nova had slipped on the grate, causing him to fall into the cage while handling the dog, and that the dog refused to enter the cage, which is why he had to be picked up.
VIDEO NOTE: Toledo attorney Jerry Phillips claims his client, Aaron Nova, acquitted today in Toledo Municipal Court of charges of animal cruelty, slammed a dog into a kennel at the county dog pound when he slipped on urine.
Mr. Phillips questioned Ms. Lyle about the working conditions that Mr. Nova was subjected to, including no protective covering for his shoes that would have prevented him from slipping on the kennel’s floor, and the lack of leashes or other tools for controlling dogs.
Ms. Lyle, who appeared flustered by Mr. Phillips’ aggressive questioning, said control sticks are not used in the adoption area because those are only used with aggressive dogs and dogs up for adoption are not considered aggressive.
A grievance by the union that represents dog warden employees, the American Federation of State, County, and Municipal Employees, Ohio Council 8, had been put on hold pending the outcome of the court case, said Steve Kowalik, staff representative for the union.
Upon learning of the acquittal, Mr. Kowalik said the union plans to appeal Mr. Nova’s termination to the Lucas County commissioners, the next step in the disciplinary process under the union contract.
“The union doesn’t believe that termination was the appropriate discipline for his offense,” Mr. Kowalik said on Tuesday.
If the county doesn’t reinstate Mr. Nova, the case will go to arbitration and could take some months to decide, he said.
Mr. Nova could potentially get back pay or partial back pay if he is reinstated, Mr. Kowalik said.
Ms. Lyle stands by her decision to fire Mr. Nova.
“I believe the actions shown on that tape are not acceptable for a dog warden employee,” she said during a phone interview. “People look to us to be the example, people look to us to be the resource on how dogs should be treated. We work for the public, and that’s not what the public is paying for.”
Shortly before the start of the trial, demonstrators stood outside Toledo Municipal Court asking that Mr. Nova be held accountable for his actions.
The small group of demonstrators, including Kimm Penn of Toledo and her 145-pound Irish wolfhound, held signs calling on the court to prosecute Mr. Nova to the fullest extent of the law.
The dog, named Finnegan, wore a sign that said, “Try choking this guy and throwing him, Mr. Nova. We love our pets.”
Contact Tanya Irwin at: firstname.lastname@example.org or 419-724-6066.