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Wallen v. City of Mobile

Alabama Court of Criminal Appeals

August 10, 2018

Cynthia Pearl Wallen
v.
City of Mobile

          Appeal from Mobile Circuit Court (CC-16-4904; CC-17-1020; CC-17-1021; CC-17-1827; CC-17-1828; and CC-17-1830)

          JOINER, JUDGE.

         Cynthia Pearl Wallen appeals her convictions for six counts of violating Mobile's ordinance prohibiting public nuisances, see § 7-21, Mobile City Code 1991.[1] She was fined $25 for each count and was ordered to pay court costs for one of those convictions (CC-16-4904).

         Wallen does not challenge the sufficiency of the evidence against her; thus, only a brief recitation of the facts is necessary here. Just before 5:00 p.m. on March 9, 2016, Officer Corey Tillman, an animal-control officer with the City of Mobile, received an anonymous complaint about multiple dogs barking at Wallen's home located on Staples Road in Mobile. In response to the complaint, Officer Tillman drove to Wallen's home and, per protocol, parked his vehicle across the street in an effort not to disturb the dogs on her property. According to Officer Tillman, as he sat in his vehicle, he heard multiple dogs barking continuously in Wallen's backyard for approximately 10 minutes.

         At that point, Officer Tillman got out of his vehicle and went to Wallen's home to speak with her. Wallen answered the door, and Officer Tillman told her why he was there. Specifically, he told her that he had received a complaint about her barking dogs and that he could smell feces and urine from the road. According to Officer Tillman, Wallen told him that she did not think her dogs were a problem and she took him to her backyard so that he could look at them. Officer Tillman testified that he saw 28 dogs in Wallen's backyard that day and that he took pictures of the unsanitary conditions in which they were being kept. He then issued a citation to Wallen for violating Mobile's public-nuisance ordinance.

         That same day, Julie Brannon, a realtor in the area, went to list a house for sale that was located behind Wallen's home. As she walked around the property, Brannon heard Wallen's dogs barking and thought that the noise was "overwhelming." (R. 114.) According to Brannon, the noise went on continuously for 30 to 45 minutes while she was there. Brannon further testified that, each time she showed the house to a potential buyer, she heard the dogs barking.

         Between 3:30 and 4:00 p.m. on October 21, 2016, Officer Tillman received another anonymous complaint concerning the noises and the smell coming from Wallen's backyard where her dogs were kept. Once again, Officer Tillman drove to Wallen's residence and parked across the street. He waited for 10 minutes before attempting to speak with Wallen, and during that time, he said, her dogs barked nonstop. He tried to speak with Wallen that day, but she was not home. He left her a notice and later mailed the public-nuisance citations issued against her to her home.

         On November 30, 2016, Officer Joshua Seals, an animal-control officer with the City of Mobile, received a complaint about dogs barking at Wallen's address. After he arrived at Wallen's residence, Officer Seals stated that he sat in his vehicle and waited for 15 or 20 minutes. During that time, he said he heard "many" dogs barking nonstop. When he went to speak with Wallen about the noise, she was not at home. He left her a notice to contact animal control and left.

         On January 25, 2017, Office Seals received another complaint about barking dogs at Wallen's home. Officer Seals, once again, went to Wallen's home and sat in his vehicle for 15 to 20 minutes listening to the dogs bark. At some point, Officer Seals spoke with Wallen and informed her that he had received a complaint about her dogs barking. According to Officer Seals, Wallen referred him to her attorney.

         Between 9:00 a.m. and 10:00 a.m. on February 9, 2017, Officer Tillman received another anonymous complaint concerning the noises and smell coming from Wallen's property. He again observed the dogs barking continuously for 10 minutes. Officer Tillman said that, when he tried to talk to Wallen about the complaint, she was uncooperative and told him to stay away from her property. Officer Tillman issued another citation to Wallen for violating Mobile's public nuisance ordinance.

         On March 3, 2017, Officer Joshua Seals received another anonymous complaint about the noise coming from Wallen's property. While sitting in his vehicle across from Wallen's home, Officer Seals heard her dogs barking nonstop for approximately 15 to 20 minutes. He then decided to speak with one of Wallen's neighbors about the noise. At some point during their conversation, Wallen pulled up in her vehicle and began filming Officer Seals. Officer Seals issued Wallen another public-nuisance citation.

         Gerald Bates, Jr., testified that he purchased the house adjacent to Wallen's property on November 30, 2016. On January 25, 2017, February 9, 2017, and March 3, 2017, he telephoned animal control to report that Wallen's dogs had been barking nonstop and that he was concerned about the conditions in which they were being kept.

         In May 2017, Wallen appeared before the Mobile Circuit Court and entered a plea of not guilty to the multiple charges against her alleging violations of Mobile's public-nuisance ordinance, § 7-21, Mobile City Code, 1991. On June 13, 2017, she filed a motion to dismiss. In her motion, Wallen argued that § 7-21 of the Mobile City Code was unconstitutionally vague, that it violated her due-process rights, and that it failed to provide for reasonable time, place, and manner restrictions. On June 23, 2017, the City of Mobile filed its response in which it argued that Wallen's contentions were without merit. Wallen's motion was ultimately denied.

         On September 27, 2017, a jury trial was held. In addition to the testimony discussed above, three of Wallen's neighbors also testified. Claude Jefferson stated that he lived 300 yards away from Wallen and that he had never had any issues with her or with her barking dogs. Jauran Jackson testified that he could hear Wallen's dogs barking whenever he was in his backyard but that they would bark only if someone was with them. Finally, Marjorie Anthony stated that she lived across the street from Wallen and that she was home all day, every day. According to Anthony, although she has heard Wallen's dogs occasionally bark throughout the day, the noises they made had never disturbed her.

         Penny McKinney, an employee of the City of Mobile animal shelter, testified that she was called out to Wallen's home twice after receiving complaints about barking dogs. When she responded to the first complaint, she drove to Wallen's home and, as she sat in her vehicle per protocol, she stated that she did not hear any barking. When she responded to the second complaint, she did the same thing and, once again, did not hear any barking.

         Finally, Wallen testified in her own defense. She told the jury that, for 48 years, she had raised and competed in dog shows with her dogs. According to Wallen, the highest number of dogs she had on her property at one time was between 28 and 29, but on average she generally had between 14 and 18 dogs at her home. When asked if she had ever received any noise complaints about her dogs before the first nuisance complaint in March 2016, Wallen stated that she had not.

         Following deliberations, the jury found Wallen guilty of six counts of violating Mobile's public-nuisance ordinance, § 7-21(1), Mobile City Code 1991, for the incidents involving her barking dogs.[2] On November 1, 2017, she was ordered to pay a $25 fine for each conviction and was also ordered to pay ...


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