Beachwood v. Pearl , 111 N.E.3d 620 ( 2018 )

[Cite as Beachwood v. Pearl, 2018-Ohio-1635.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105743
CITY OF BEACHWOOD
PLAINTIFF-APPELLEE
vs.
JUSTIN PEARL
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; VACATED IN PART;
AND REMANDED
Criminal Appeal from the
Shaker Heights Municipal Court
Case No. 2016 CRB 00741
BEFORE: Celebrezze, J., E.A. Gallagher, A.J., and McCormack, J.
RELEASED AND JOURNALIZED: April 26, 2018
ATTORNEY FOR APPELLANT
Eric M. Levy
55 Public Square, Suite 1600
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Thomas F. Greve
Prosecutor, City of Beachwood
Matty, Henrikson & Greve, L.L.C.
55 Public Square, Suite 1775
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Justin Pearl (“appellant”), brings this appeal challenging his
conviction and the trial court’s sentence for cruelty to companion animals. Specifically,
appellant argues that the trial court erred by finding him guilty of violating Beachwood Codified
Ordinances (“B.C.O.”) Section 618.051(c)(5) because he was charged with violating Section
618.051(c)(2) in the complaint; the trial court presumed his guilt based on statements he made to
the responding officer violating his Fifth Amendment privilege against self-incrimination; the
trial court erred by arbitrarily disregarding the uncontradicted testimony of the defense’s expert
witness; his conviction was not supported by sufficient evidence and is against the manifest
weight of the evidence; and the trial court erred by sentencing him to probation in its sentencing
entry without imposing the sentence in open court. After a thorough review of the record and
law, this court affirms in part, vacates in part, and remands for further proceedings consistent
with this opinion.
I. Factual and Procedural History
{¶2} The instant matter arose from a July 28, 2016 incident during which appellant
parked his vehicle and left his two dogs in the vehicle in a parking lot on Chagrin Boulevard in
Beachwood, Ohio. Appellant had an appointment scheduled for 2:30 p.m., however he was
running a few minutes late. The temperature was approximately 84 degrees at the time of the
incident. The windows of appellant’s vehicle were cracked open one or two inches.
{¶3} Lisa Friedman worked in the area and noticed the dogs in appellant’s vehicle around
2:43 p.m. She became concerned about the dogs’ safety and believed that it was too hot outside
for the dogs to be confined in the vehicle. As a result, she called the Beachwood Police
Department and her sister, Lori Sustin, who also worked in the area.
{¶4} Beachwood Police Officer Monica Svigel responded to the parking lot where
appellant’s vehicle was parked. Officer Svigel was eventually able to identify appellant as the
owner of the vehicle in which the dogs were confined. A police dispatcher contacted appellant
and advised him to return to his vehicle. When appellant returned to his vehicle, the dogs had
been confined for at least 40 minutes. At this point, Officer Svigel made the decision to arrest
appellant for cruelty to companion animals.
{¶5} Appellant was charged in a one-count complaint with cruelty to companion animals,
in violation of B.C.O. 618.051(c). As will be discussed in further detail below, the complaint
alleged that appellant violated subsection (c)(2) but incorporated the language set forth in
subsection (c)(5). Appellant was arraigned on August 16, 2016. He pled not guilty to the
complaint.
{¶6} A bench trial commenced on November 28, 2016. The city presented the
testimony of the two eyewitnesses and the responding police officer. At the close of the city’s
case-in-chief, appellant moved for a Crim.R. 29 judgment of acquittal, which the trial court
denied.
{¶7} The defense called three witnesses: (1) Paul Shaughnessy, an expert in the field of
canine health and transportation, (2) appellant’s wife, Nikoline Larson,1 and (3) appellant. The
bench trial concluded on December 5, 2016. The trial court ordered the parties to submit
written closing arguments.
{¶8} The trial court issued a judgment entry on March 3, 2017, finding appellant guilty of
cruelty to companion animals. The judgment entry included findings of fact and conclusions of
law.
{¶9} On March 20, 2017, appellant filed a motion to set aside the trial court’s verdict and
for a judgment of acquittal pursuant to Crim.R. 29(C). The trial court issued a judgment entry
on March 29, 2017, denying appellant’s motion.
{¶10} The trial court held a sentencing hearing on April 3, 2017. The prosecutor and
defense counsel addressed the court. The trial court imposed a $500 fine and suspended $300
of the fine on the condition that appellant did not have any additional dog charges in the next 12
months.
{¶11} On April 3, 2017, the trial court issued a sentencing judgment entry in which it (1)
imposed a $500 fine plus court costs; (2) terminated the administrative license suspension; (3)
placed appellant on inactive probation for one year; and (4) suspended $300 of the $500 fine on
the condition that appellant does not have any similar convictions or dog violations during the
one-year probationary period.
1 Appellant and Larson were not married at the time of the July 28, 2016 incident.
{¶12} On April 18, 2017, appellant filed a motion for the trial court to issue a nunc pro
tunc sentencing entry reflecting that the trial court did not place him on probation. The trial
court issued a judgment entry on April 27, 2017, denying appellant’s motion for a nunc pro tunc
sentencing entry.
{¶13} Appellant filed the instant appeal challenging the trial court’s judgment on May 3,
2017. He assigns six errors for review:
I. The trial court erred when it found appellant guilty of violating Ord.
618.051(C)(2) as charged despite making its findings under the elements set forth
in Ord. 618.051(C)(5) for which the court was without jurisdiction.
II. The trial court erred when it imposed a sentence of inactive probation in its
judgment entry that was not imposed at the sentencing hearing.
III. The trial court erred when it specifically indicated in its written opinion that it
considered appellant’s not providing evidence and remaining silent when
questioned by police as an indication of his guilt.
IV. The trial court erred and abused its discretion by arbitrarily disregarding
uncontradicted expert testimony.
V. The trial court erred in finding appellant guilty of cruelty to companion animals
where the evidence presented at trial was insufficient to overcome appellant’s
Crim.R. 29 motion and to support a conviction at the close of evidence.
VI. The trial court erred in finding appellant guilty of cruelty to companion
animals after a bench trial where the manifest weight of the evidence did not
support appellant’s convictions.
For ease of discussion, we will address appellant’s assignments of error out of order.
II. Law and Analysis
A. Jurisdiction
{¶14} In his first assignment of error, appellant argues that the trial court erred by finding
him guilty of cruelty to companion animals, in violation of B.C.O. 618.051(c)(2), as charged in
the complaint, because the trial court’s findings pertained to cruelty to companion animals in
violation of B.C.O. 618.051(c)(5). Appellant contends that the trial court did not have
jurisdiction to find him guilty of violating B.C.O. 618.051(c)(5) because the complaint alleged
that appellant violated B.C.O. 618.051(c)(2). Appellant essentially argues that the trial court
found him guilty of the wrong ordinance.
{¶15} Initially, we note that defense counsel did not object to the trial court’s jurisdiction
below. Accordingly, we review for plain error. State v. Murphy, 91 Ohio St.3d 516, 532, 747
N.E.2d 765 (2001), quoting State v. Childs, 14 Ohio St.2d 56, 62, 236 N.E.2d 545 (1968) (“Even
constitutional rights ‘may be lost as finally as any others by a failure to assert them at the proper
time.’”). Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial rights may
be noticed although they were not brought to the attention of the court.” We are mindful that
notice of plain error “‘is to be taken with the utmost caution, under exceptional circumstances,
and only to prevent a manifest miscarriage of justice.’” State v. Barnes, 94 Ohio St.3d 21, 27,
759 N.E.2d 1240 (2002), quoting State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978).
{¶16} In support of his argument that the trial court found him guilty of the wrong
subsection of B.C.O. 618.051(c), appellant contends that (1) the wrong subsection was cited in
the complaint and the trial court’s March 3, 2017 judgment entry, (2) the complaint cited the
wrong degree of the offense with which he was charged, and (3) the wrong offense was cited in
the trial court’s April 3, 2017 sentencing entry.
{¶17} First, regarding the complaint, the offense “cruelty to companion animals” was
listed at the top of the complaint. Immediately beneath this offense, the complaint cited B.C.O.
618.051(c)(2). The body of the complaint also alleged that appellant violated B.C.O.
618.051(c)(2). Despite the citations to B.C.O. 618.051(c)(2) at the top and in the body of the
complaint, the body of the complaint incorporated the language set forth in B.C.O. 618.051(c)(5),
not (c)(2). The body of the complaint alleged that appellant “did negligently deprive his two (2)
dogs of water while confining them in a hot vehicle during 84 degree weather. Witnesses
advised the dogs were in the car for approximately 40 minutes.”
{¶18} The top of the complaint stated that the offense with which appellant was charged
was a misdemeanor of the first degree. B.C.O. 618.051(f)(2) provides that “[w]hoever violates
[B.C.O. 618.051(c)] is guilty of a misdemeanor of the second degree on a first offense and a
misdemeanor of the first degree on each subsequent offense.”
{¶19} Second, the trial court’s March 3, 2017 judgment entry stated that appellant was
charged with violating B.C.O. 618.051(c)(2). However, the judgment entry incorporates the
language from B.C.O. 618.051(c)(5). In the body of the judgment entry, the trial court found
appellant guilty of the offense of cruelty to companion animals, without citing the specific
subsection of B.C.O. 618.051(c).
{¶20} Third, the trial court’s April 3, 2017 sentencing judgment entry states that appellant
was charged with “cruelty to animals.” This offense, however, is governed by B.C.O. 618.05,
not B.C.O. 618.051.
{¶21} Appellant argues that he could not have reasonably known what offense — a
violation of B.C.O. 618.051(c)(2) or a violation of B.C.O. 618.051(c)(5) — that he was being
charged with. He further emphasizes that these subsections have different elements.
Appellant asserts that he raised this issue to the trial court in his written closing argument and
that neither the court nor the city amended the complaint to reflect the correct subsection of
B.C.O. 618.051(c).
{¶22} The city concedes that the complaint erroneously cited B.C.O. 618.051(c)(2) as the
offense with which appellant was charged. The city argues, however, that appellant had
adequate notice that he was charged for violating B.C.O. 618.051(c)(5), and thus, appellant was
not prejudiced by the “numerical designation error.” After reviewing the record, we agree with
the city.
{¶23} It is undisputed that the elements of a violation of B.C.O. 618.051(c)(2) and (c)(5)
are different. B.C.O. 618.051(c)(2) provides that “[n]o person who confines or who is the
custodian or caretaker of a companion animal shall negligently * * * [o]mit any act of care 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[.]” B.C.O.
618.051(c)(5) provides,
[n]o person who confines or who is the custodian or caretaker of a companion
animal shall negligently * * * [d]eprive the companion animal of necessary
sustenance, confine the companion animal without supplying it during the
confinement with sufficient quantities of good, wholesome food and water, or
impound or confine the companion animal without affording it, during the
impoundment or confinement, with access to shelter from heat, cold, wind, rain,
snow, or excessive direct sunlight, if it can reasonably be expected that the
companion animal would become sick or suffer in any other way as a result of or
due to the deprivation, confinement, or impoundment in any of those specified
manners.
{¶24} Although the complaint alleged that appellant violated B.C.O. 618.051(c)(2), a
review of the complaint reflects that the citation to B.C.O. 618.051(c)(2) was merely a
typographical error. The complaint incorporated the language of B.C.O. 618.051(c)(5), not
(c)(2). Similarly, although the trial court’s March 3, 2017 judgment entry states that appellant
was charged with violating B.C.O. 618.051(c)(2), the trial court cites the language set forth in
B.C.O. 618.051(c)(5), and the trial court’s findings of fact and conclusions of law pertain to the
elements of subsection (c)(5), rather than the elements of subsection (c)(2). Accordingly, it is
evident that the trial court’s citation to B.C.O. 618.051(c)(2) was merely a typographical error.
{¶25} Appellant’s assertion that he could not have reasonably known which subsection he
was being charged with is unsupported by the record. Defense counsel’s written closing
argument demonstrates that although the complaint and the city’s initial closing argument cited
B.C.O. 618.051(c)(2), appellant was aware that he was being prosecuted for violating B.C.O.
618.051(c)(5). Defense counsel’s closing argument provides, in relevant part, “[t]hough the
[p]rosecution, in closing, alleges to charge [appellant] with a violation of 618.051(c)(2), it
actually quotes and makes allegations based on Section 618.051(c)(5). However, there is no
need to harp on what is likely a simple typographical error.” (Emphasis added.) In the city’s
final closing argument, the prosecutor confirmed that appellant was correct in that the applicable
subsection of B.C.O. 618.051 was (c)(5), not (c)(2).
{¶26} Based on the foregoing analysis, we find that appellant failed to demonstrate that
he was prejudicially misled as a result of the numerical errors regarding the subsection of the
cruelty to companion animals offense with which he was charged and convicted. Accordingly,
appellant’s first assignment of error is overruled.
{¶27} It is well established that a trial court speaks through its journal entries. State v.
Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 12. A trial court may correct
clerical errors in its journal entries at any time in order to conform to the transcript of the
proceedings. State v. Lugo, 8th Dist. Cuyahoga No. 103893, 2016-Ohio-2647, ¶ 3, citing State
v. Steinke, 8th Dist. Cuyahoga No. 81785, 2003-Ohio-3527, ¶ 47; Crim.R. 36. Trial courts
retain continuing jurisdiction to correct clerical errors in judgments with a nunc pro tunc entry to
reflect what the court actually decided. State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353,
2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19.
{¶28} Because the trial court’s March 3, 2017 judgment entry erroneously states that
appellant was charged with violating B.C.O. 618.051(c)(2), and because the trial court’s April 3,
2017 sentencing judgment entry erroneously states that appellant was charged with “cruelty to
animals” rather than “cruelty to companion animals,” we remand the matter to the trial court for
the limited purpose of issuing nunc pro tunc journal entries that accurately reflect the offense
with which appellant was charged and convicted.
B. Right to Remain Silent
{¶29} In his third assignment of error, appellant takes issue with testimony elicited by the
prosecution and comments in the city’s opening and closing arguments regarding appellant not
having water or a ventilation system in his vehicle. Appellant argues that the testimony and
statements were based on the fact that he did not specifically inform the responding police officer
that he had water or a ventilation system in his vehicle. He contends that the trial court
committed plain error by considering his failure to make a statement regarding water or a
ventilation system in his vehicle as an indication of his guilt. We disagree.
{¶30} It is well established that opening and closing statements are not evidence. Peffer
v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 94356, 2011-Ohio-450, ¶ 27. Appellate
courts presume that in a bench trial, a trial court considered only relevant and admissible
evidence. State v. Crawford, 8th Dist. Cuyahoga No. 98605, 2013-Ohio-1659, ¶ 61; State v.
Chandler, 8th Dist. Cuyahoga No. 81817, 2003-Ohio-6037, ¶ 17.
{¶31} Initially, we note that when appellant returned to his vehicle in the parking lot, he
did not remain silent or invoke his constitutional rights to remain silent or against
self-incrimination. Rather, appellant freely and voluntarily engaged in a conversation with
Officer Svigel.
{¶32} During this conversation, Officer Svigel stated that there were two dogs in
appellant’s vehicle that were panting without access to water. Appellant did not specifically
address or dispute Officer Svigel’s assertion that the dogs did not have water. Rather, he stated
that (1) whenever he leaves the dogs in the car he turns the car on at different times, (2) while he
was in his appointment, he had remotely started his vehicle and his vehicle had been running, (3)
when he starts his vehicle remotely, it turns off after 15 minutes, and (4) he had the windows of
his vehicle open.
{¶33} The prosecution did not comment or elicit testimony regarding appellant’s silence
or failure to profess his innocence. As noted above, appellant did not remain silent and he did,
in fact, profess his innocence. On direct examination, the prosecutor asked Officer Svigel,
“from the time [appellant] came out [to his vehicle in the parking lot], what did he do and what
did he say?” (Tr. 81.) The following exchange took place:
THE PROSECUTOR: Did [appellant] offer to show you or did he show you at
any point in time while you were present on the scene that there was water that
had been provided to his two dogs?
OFFICER SVIGEL: No.
THE PROSECUTOR: At any time while [appellant] was on the scene, did he
show you any of the mechanization or any special way his truck had been built to
provide sustenance or water to his two dogs?
OFFICER SVIGEL: No. In fact, when I advised him that he was going to be
under arrest, he tried to articulate that he did periodically start his truck; and I
explained that we have witness statements saying he didn’t. And then he further
explained, Well, the windows were cracked. And I said, Well, it’s still hot.
And that was the end of his argument about the comfortability of his dogs. He
never elaborated on water in the vehicle or any specifications to the vehicle to
indicate comfortability for the animals.
THE PROSECUTOR: Did he indicate to you he had any type of special
ventilation system while he was present on the scene at any time involving his two
dogs being inside of his vehicle?
OFFICER SVIGEL: He did not. He only indicated that he could remote start his
vehicle for air conditioning purposes.
(Tr. 83-84.)
{¶34} On direct examination, appellant testified that “there’s a cup holder between the
[back] seats, which is where I put water in for the — for the dogs. It sits in — there’s two very
large cup holders which fit exactly one full water bottle. More than that little water bottle there,
it fits in the cup holder.” (Tr. 164.) Appellant testified that he had water in these cup holders
when he went into his appointment on July 28, 2016.
{¶35} The trial court did not find appellant’s testimony that the dogs had access to water
inside the vehicle and that a ventilation system was operating inside the vehicle to be credible.
The trial court’s judgment entry provides, in relevant part,
During their confinement, the dogs could be seen panting profusely and with dried
out tongues. No water was visible with the dried out tongues giving indication
that they had not been drinking water although one of the dogs attempted to take
water from a witness. The only contradictory testimony about the availability of
water was offered by [appellant] at trial saying that the cup holders in the truck
contained water. The fact that this was stated for the first time at trial makes the
testimony on this point less credible carrying less weight with the court.
***
[Appellant] offered testimony that the truck had been modified with an automatic
air fan system. Yet, this system is never heard to be running during the time the
witnesses or police officer were near the truck and awaiting [appellant’s] return.
It is also noteworthy that as soon as [appellant] approached the truck in response
to the officer’s call, he did remotely start the truck for the first time. If the
interior automatic fan system were sufficient, there would have been no need to
start the truck upon his approach. [Appellant] only returned to the truck at 3:25
p.m., because he was summoned by the police.
(Emphasis sic.)
{¶36} After reviewing the record, we find no merit to appellant’s assertion that the trial
court presumed he was guilty based on his failure to inform Officer Svigel that the dogs had
access to water inside the vehicle or that he had a ventilation system that was operating. Rather,
the trial court concluded that appellant’s testimony that the dogs had access to water and that a
ventilation system was operating inside his vehicle was not credible based on the prior statements
that appellant voluntarily made to Officer Svigel at the time of the incident, the testimony of
eyewitnesses Friedman and Sustin, and the testimony of Officer Svigel. The trial court’s
credibility determination on this point does not run afoul to the Fifth Amendment or appellant’s
privilege against self-incrimination. Accordingly, appellant’s third assignment of error is
overruled.
C. Expert Testimony
{¶37} In his fourth assignment of error, appellant argues that the trial court abused its
discretion by arbitrarily disregarding the testimony of the defense’s expert witness, Paul
Shaughnessy. Shaughnessy was recognized as an expert in the field of canine health and
transportation. He was not present at the scene at the time of the incident; however, he
reviewed the video footage from Officer Svigel’s body camera. He also examined appellant’s
vehicle after-the-fact and without appellant’s dogs inside. Shaughnessy described a “water
system” and a “ventilation system” that appellant has in his vehicle.
{¶38} Regarding the “water system,” Shaughnessy explained that when he stood outside
the vehicle and looked through the windows, he could not identify any water inside the vehicle.
However, when he opened the doors and examined the inside of the vehicle, he discovered that
the cup holders in the backseat were filled with water. Shaughnessy stated that appellant uses
the cup holders as a “water reservoir” for the dogs. He explained that you cannot see the water
in the cup holders by simply looking through the windows. He could not definitively state,
however, that the cup holders were filled with water when the dogs were confined in appellant’s
vehicle on July 28, 2016.
{¶39} Shaughnessy also testified about the “ventilation system” that appellant installed in
his vehicle. He explained that you cannot see the ventilation system by simply looking through
the windows. The ventilation system is underneath the vehicle’s floorboards and it pulls cool
air from underneath the vehicle into the car. When the ventilation system is activated, it makes
a “humming noise,” and the system is “very quiet.” He asserted that the ventilation system can
activate even when the vehicle is turned off. He explained that the ventilation system is a
standard piece of equipment in police vehicles. Shaughnessy testified that the ventilation
system that appellant had in his vehicle could keep the dogs safe if they were confined for a
40-minute time period. He could not definitively state, however, that the ventilation system
was, in fact, on when the dogs were confined in appellant’s vehicle on July 28, 2016.
{¶40} Based on his review of the video footage, he opined that (1) the dogs were not
exhibiting behaviors that led him to believe they were in heatstroke or in any danger at the time
they were confined in appellant’s vehicle; and (2) if the dogs were confined in appellant’s vehicle
in 85-degree heat, without water and a ventilation system, it is very possible they would have
been in great danger and could possibly even have died.
{¶41} Shaughnessy hypothesized that when the dogs were confined in appellant’s vehicle
on July 28, 2016, either the ventilation system was on or the dogs had access to water inside the
vehicle. On cross-examination, Shaughnessy asserted that it would be dangerous to confine the
dogs in the vehicle without a ventilation system and access to water when the temperature
outside was 85 degrees. (Tr. 188.)
{¶42} In support of his argument that the trial court abused its discretion by arbitrarily
ignoring Shaughnessy’s testimony, appellant directs this court to State v. White, 118 Ohio St.3d
12, 2008-Ohio-1623, 885 N.E.2d 905. In White, the Ohio Supreme Court explained,
[w]hile the trial court is the trier of fact, it may not disregard credible and
uncontradicted expert testimony in favor of either the perceptions of lay witnesses
or of the court’s own expectations * * *. Doing so shows an arbitrary,
unreasonable attitude toward the evidence before the court and constitutes an
abuse of discretion.
Id. at ¶ 74.
The trier of fact cannot “weigh” witness testimony and assess its “credibility,”
unless there are conflicts in the evidence or questions of credibility to be resolved.
See [State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997)], citing
[State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983)].
For example, the trier of fact may reject an expert’s opinion based on the
contradictory opinion testimony of another expert or the expert’s own concessions
during cross-examination that question the credibility of his opinion. See, e.g.,
State ex rel. Unger v. Indus. Comm., 70 Ohio St.3d 672, 676, 640 N.E.2d 833(1994); State v. Pierce, 64 Ohio St.3d 490, 500-501, 597 N.E.2d 107 (1992).
The trier of fact “may not disregard credible and uncontradicted expert
testimony[.]” [White at ¶ 74].
(Emphasis added.) Cromer v. Children’s Hosp. Med. Ctr. of Akron, 2016-Ohio-7461, 64
N.E.3d 1018, ¶ 26 (9th Dist.).
While a trial court cannot “arbitrarily” ignore an expert opinion, it may reach a
contrary conclusion if there are “some reasons * * * objectively present” in the
record to do so. State v. Brown, 5 Ohio St.3d 133, 135, 449 N.E.2d 449 (1983).
Thus, an expert’s opinion is not conclusive, even if uncontradicted by another
expert. Id.; see [White at ¶ 71] (holding that the trial court is not required to
accept an expert’s opinion when there is some objectively present reason for
ignoring it).
State v. Walker, 1st Dist. Hamilton No. C-150757, 2017-Ohio-9255, ¶ 14.
{¶43} After reviewing the record in the instant matter, we find that the trial court did not
ignore or disregard Shaughnessy’s testimony. Rather, the record reflects that the trial court
determined that his testimony was not credible. Furthermore, we find that there were
objectively present reasons based upon which the trial court could reject Shaughnessy’s
conclusions and hypothesis and make its own determination as to whether it could reasonably be
expected that appellant’s dogs would become sick or suffer as a result of appellant’s negligence.
{¶44} First, in White, “the trial court’s rejection of the expert testimony was not based on
any credibility determination.” Id. at ¶ 73. In this case, unlike White, the trial court found that
Shaughnessy’s testimony was not credible because he was not at the scene and did not observe
the dogs firsthand while they were confined inside appellant’s vehicle. It is undisputed that
Shaughnessy was not present at the scene and did not observe the dogs in appellant’s vehicle
firsthand. Shaughnessy’s observations were based on his review of the video footage recorded
by Officer Svigel’s body camera and his subsequent examination of appellant’s vehicle. During
cross-examination, Shaughnessy acknowledged that “with [the body camera video], we could not
see in the car.” (Tr. 191.) He conceded that he could not clearly see into the vehicle from the
video footage. Shaughnessy explained that the first time he actually sees the dogs on the video
is when they exit the vehicle after arriving at appellant’s house.
{¶45} Second, we find that there were objectively present reasons based upon which the
trial court could reject Shaughnessy’s testimony and hypothesis. As noted above, Shaughnessy
hypothesized that when the dogs were confined in appellant’s vehicle, either the ventilation
system was on or the dogs had access to water inside the vehicle. This hypothesis is
contradicted by the eyewitness testimony of Friedman, Sustin, and Officer Svigel.
{¶46} Friedman testified that from the time she arrived on the scene until appellant
returned to the parking lot, appellant’s car never went on and that “[t]here was no sounds coming
from that car. Had the car been running, I would not have called the police.” (Tr. 24.) When
defense counsel asked if she would have been concerned if she knew that there was a ventilation
system in the car, Friedman asserted that she did not hear “anything going” in appellant’s vehicle.
(Tr. 42.) Friedman also testified that she did not see any evidence that there was water inside
the vehicle.
{¶47} Sustin testified that she did not hear any fan noise inside appellant’s vehicle and
that the car never started the entire time she was outside in the parking lot. She testified that she
“looked in the vehicle over and over again from different points of view,” and that there was not
water inside the vehicle. (Tr. 69.)
{¶48} Officer Svigel testified that she did not see any water in either the front or back
seat. She did not observe the dogs having access to water or sustenance while she was on scene
waiting for appellant to return to his car. Officer Svigel asserted that she did not feel any wind
circulating into the vehicle when she stuck her hand inside. Officer Svigel explained that she
looked inside the vehicle in order to determine whether the dogs had access to any food or water.
She did not see any water inside the vehicle.
{¶49} The testimony of Friedman, Sustin, and Officer Svigel regarding the lack of water
inside the vehicle is supported by the witnesses’ observations that the dogs’ tongues were “bone
dry.”
{¶50} To the extent that appellant argues that the ventilation system was activated while
he was in his appointment, this argument is unsupported by the record. Because the ventilation
system pulls air from underneath the vehicle into the vehicle, Shaughnessy explained that there
would be a “fume factor” if the ventilation system kicked on when the car was running. In other
words, if the vehicle was running, then the ventilation system could, in theory, bring potentially
harmful fumes from underneath the vehicle and circulate them inside the vehicle. However, he
opined that the ventilation system would be effective as long as the car was not running.
{¶51} Assuming that appellant had the ventilation system in his vehicle on July 28, 2016,
and that the ventilation system worked even if the vehicle was off, there would be no need for
appellant to remotely start his vehicle while he was in his appointment. However, appellant
advised Officer Svigel that he remotely started his vehicle while he was in his appointment, and
he remotely started the vehicle as he exited the building and returned to the parking lot. If
appellant had remotely started his vehicle while he was in his appointment, as he claimed, and
the ventilation system was on, as Shaughnessy hypothesized, then the dogs could have been in
danger when the fumes from underneath the vehicle were circulated into the vehicle.
{¶52} Shaughnessy’s hypothesis that the ventilation system was on while appellant was in
his appointment is also contradicted by Officer Svigel’s testimony. Officer Svigel testified that
she reached her hand inside the vehicle to determine how hot it was inside. Officer Svigel
concluded that “[t]he interior of the vehicle was significantly hotter than the exterior of the
vehicle.” (Tr. 78.) She also asserted that she did not feel any wind circulating into the vehicle
when she stuck her hand inside. Had the ventilation system been working, as Shaughnessy
hypothesized, the temperature inside the vehicle should have been cooler than the temperature
outside.
{¶53} Finally, Shaughnessy opined that the dogs would not be adversely impacted if they
were confined in the vehicle for 40 to 60 minutes if the temperature inside the vehicle was 90 to
95 degrees. Officer Svigel estimated, however, that when the temperature outside was 80 to 85
degrees, the temperature inside the vehicle would have been between 118 and 123 degrees after
40 minutes. (Tr. 96.)
{¶54} After reviewing the record, we cannot say the trial court abused its discretion in
determining that the eyewitnesses were in a better position to view the dogs than Shaughnessy.
The dogs cannot be clearly and consistently observed in the body camera video footage. The
view of the dogs and the inside of appellant’s vehicle is obstructed by (1) the windows, which
were cracked one or two inches, (2) the tint of the rear windows, and (3) the reflection off of the
windows. Furthermore, Officer Svigel is constantly moving around while her body camera is
recording. She is interacting with Sustin and Friedman, and she is walking back and forth
between appellant’s vehicle and her police cruiser. For all of these reasons, the trial court
reasonably concluded that Officer Svigel, who was present at the scene and observing the dogs
firsthand, was in a better position to view the dogs and their behavior than Shaughnessy.
{¶55} To the extent that appellant argues that the trial court disregarded Shaughnessy’s
testimony in favor of Officer Svigel’s testimony regarding whether the dogs were exhibiting
signs of heatstroke or dehydration, this argument is not supported by the record. In the trial
court’s judgment entry, the trial court stated that while the dogs were confined inside the vehicle,
they “could be seen panting profusely and with dried out tongues. No water was visible with
the dried tongues giving indication that they had not been drinking water[.]” Appellant
emphasizes, citing Shaughnessy’s testimony, that profuse salivation, a bright red tongue,
dizziness, and lethargy are signs of heatstroke and/or dehydration. Shaughnessy asserted that a
dry tongue is not indicative of a heatstroke and that it is normal for dogs to have dry tongues or
tongues that are not excessively dripping. On the other hand, Officer Svigel asserted that the
dogs’ bone-dry and whiteish tongues, lack of drool or saliva, and profuse panting were signs of
heatstroke and dehydration.
{¶56} After reviewing the record, we find that the trial court referenced “dried” and
“dried out” tongues in its judgment entry as an indication that the dogs did not have access to
water inside the vehicle — not as an indication that the dogs were having a heatstroke or were
dehydrated.
{¶57} Based on the foregoing analysis, we cannot say that the trial court arbitrarily
disregarded Shaughnessy’s testimony. Although the city did not present expert testimony
contradicting Shaughnessy’s testimony, the trial court determined that Shaughnessy’s testimony
was not credible because he was not at the scene and did not observe the dogs firsthand.
Furthermore, we find that there were objectively present reasons based upon which the trial court
could reject Shaughnessy’s testimony and reach a contrary conclusion as to whether it could
reasonably be expected that the dogs would become sick or suffer as a result of appellant’s
negligence. First, the testimony of Friedman, Sustin, and Officer Svigel contradicted
Shaughnessy’s theory that there was water inside the vehicle or the ventilation system was on.
Second, Shaughnessy’s concessions that he did not observe the dogs firsthand, that he could not
clearly see the dogs or the inside of appellant’s vehicle on the body camera video, and that he did
not actually see the dogs until they jumped out of the car in appellant’s driveway question the
credibility of his opinion. Accordingly, we find no basis to conclude that the trial court abused
its discretion. Appellant’s fourth assignment of error is overruled.
D. Sufficiency
{¶58} In his fifth assignment of error, appellant argues that the trial court erred by
denying his Crim.R. 29 motion for a judgment of acquittal and that his conviction for cruelty to
companion animals was not supported by sufficient evidence.
{¶59} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where the
state’s evidence is insufficient to sustain a conviction for the offense. Cleveland v. Pate, 8th
Dist. Cuyahoga No. 99321, 2013-Ohio-5571, ¶ 12. We conduct the same analysis in reviewing
a trial court’s ruling on a Crim.R. 29 motion and a challenge to the sufficiency of the evidence.
State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus.
{¶60} The test for sufficiency requires a determination of whether the prosecution met its
burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598, ¶ 12. 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. Thompkins, 78 Ohio St.3d at 386, 678
N.E.2d 541.
{¶61} In the instant matter, appellant was convicted of cruelty to companion animals in
violation of B.C.O. 618.051(c)(5), which provides in relevant part,
[n]o person who confines or who is the custodian or caretaker of a companion
animal shall negligently * * * [d]eprive the companion animal of necessary
sustenance, confine the companion animal without supplying it during the
confinement with sufficient quantities of good, wholesome food and water, or
impound or confine the companion animal without affording it, during the
impoundment or confinement, with access to shelter from heat, cold, wind, rain,
snow, or excessive direct sunlight, if it can reasonably be expected that the
companion animal would become sick or suffer in any other way as a result of or
due to the deprivation, confinement, or impoundment in any of those specified
manners.
{¶62} Appellant argues that the city failed to establish that he either (1) negligently
deprived his dogs of sufficient quantities of water and that it could reasonably be expected that
his dogs would become sick of suffer as a result of the deprivation, or (2) negligently confined
his dogs without affording them with shelter from heat and that it could reasonably be expected
that his dogs would become sick or suffer as a result of the confinement. Appellant suggests
that the city was required to present (1) expert testimony regarding whether it could reasonably
be expected that his dogs would become sick or suffer as a result of being deprived of sufficient
quantities of water or being confined in heat; (2) testimony regarding what quantity of water
would be sufficient for the dogs under the conditions on July 28, 2016; (3) expert testimony
regarding how long the dogs could safely be confined in the vehicle on a cloudy day when the
temperature was 85 degrees; and (4) expert testimony regarding the temperature inside the
vehicle under the conditions present on July 28, 2016. Appellant further suggests that the city
was required to establish that the dogs did not have access to sufficient quantities of water on the
day of July 28, 2016 — not merely when they were confined inside the vehicle. We disagree.
{¶63} As noted above, the city was required to establish that it could reasonably be
expected that the dogs would become sick or suffer as a result of appellant’s negligence. The city
was not, as appellant suggests, required to establish to a degree of scientific or professional
certainty that the dogs could or did, in fact, become sick or suffer.
{¶64} Appellant cites State v. Dixon, 6th Dist. Huron No. H-05-021, 2006-Ohio-2114, for
the proposition that expert testimony from a veterinarian is required to establish a conviction for
cruelty to animals. Appellant’s reliance on Dixon is misplaced. In fact, the Sixth District
noted that none of the state’s witnesses formally testified as expert witnesses. Id. at ¶ 15.
Furthermore, the court explained that “a lay person may give opinion evidence based upon
observed facts.” Id. at ¶ 16, citing Am. Louisiana Pipe Line Co. v. Kennerk, 103 Ohio App.
133, 144 N.E.2d 660 (6th Dist.1957).
{¶65} After reviewing the record, we find that the city’s evidence, if believed, was
sufficient to support appellant’s conviction. The city’s three eyewitnesses — Friedman, Sustin,
and Officer Svigel — all reasonably expected, based on their observations, that the dogs would
become sick and/or suffer as a result of appellant’s negligence.
{¶66} First, regarding Officer Svigel’s testimony, appellant argues that the city attempted
to elicit expert testimony from Officer Svigel even though she was not qualified to testify as an
expert. Specifically, appellant asserts that Officer Svigel testified about the temperature inside
the vehicle without having an actual understanding of the subject matter. He further contends
that Officer Svigel was unable to testify whether the dogs had access to sufficient quantities of
water inside the vehicle, or whether the dogs consumed sufficient quantities of water throughout
the day.
{¶67} Initially, we note that appellant did not object to Officer Svigel’s testimony during
trial. Accordingly, he has waived all but plain error. State v. Lang, 129 Ohio St.3d 512,
2011-Ohio-4215, 954 N.E.2d 596, ¶ 136.
{¶68} “Under Evid.R. 701, courts have permitted lay witnesses to express their opinions
in areas in which it would ordinarily be expected that an expert must be qualified under Evid.R.
702.” State v. Primeau, 8th Dist. Cuyahoga No. 97901, 2012-Ohio-5172, ¶ 74, citing State v.
McKee, 91 Ohio St.3d 292, 744 N.E.2d 737 (2001). This court has consistently recognized that
the testimony of a state’s witness, who is not presented as an expert, is properly admitted under
Evid.R. 701 when (1) the testimony is based on the witness’s training or experience, (2) the
testimony relates to the witness’s personal observations with the investigation, and (3) the
testimony is helpful to determine a fact at issue. See, e.g., State v. Wilkinson, 8th Dist.
Cuyahoga No. 100859, 2014-Ohio-5791, ¶ 52-53; Primeau at ¶ 75; State v. Cooper, 8th Dist.
Cuyahoga No. 86437, 2006-Ohio-817, ¶ 18.
Other appellate courts have similarly determined that “some testimony offered by
[police] officers is lay person witness testimony even though it is based on the
[officer’s] specialized knowledge.” State v. Johnson, 7th Dist. Jefferson No.
13JE5, 2014-Ohio-1226, ¶ 57 (detective’s testimony as to gang activity was
permissible under Evid.R. 701 based on detective’s personal knowledge and
experience in the field); see also State v. McClain, 6th Dist. Lucas No. L-10-1088,
2012-Ohio-5264, ¶ 13 (detective’s testimony that quantities of narcotics recovered
during the execution of the search warrant suggested that they were for sale as
opposed to personal use was admissible under Evid.R. 701 as lay person opinion
testimony because his testimony was based on his training and experience); State
v. Williams, 9th Dist. Summit No. 25716, 2011-Ohio-6604, ¶ 11 (officer’s
testimony that the location was a methamphetamine lab was proper Evid.R. 701
testimony because it was based on personal observation from items taken from
garbage and found in the house).
State v. Calhoun, 8th Dist. Cuyahoga No. 105442, 2017-Ohio-8488, ¶ 35.
{¶69} The record in this case reflects that the city properly laid a foundation for Officer
Svigel’s testimony and her testimony was directly related to the actions she personally undertook
and her personal, firsthand observations at the scene. Officer Svigel testified that she is a
member of the Ohio Search Dog Association and that she has a search and rescue canine.
Officer Svigel explained that she has been trained on heat factors, inside and outside exposure to
heat, and temperatures inside and outside of a vehicle as they relate to the confinement of a child,
person, or animal. Officer Svigel asserted that she has previously handled approximately two
cases involving children being left inside a vehicle in hot weather and approximately seven or
eight cases involving animals being confined inside a vehicle in hot weather.
{¶70} Based on her education, training, and experience, she approximated that when it is
80 to 85 degrees outside, the temperature inside a vehicle would be between 118 and 123 degrees
after a 40-minute time period. (Tr. 96.) Her approximation was based on an American
Veterinary Medical Association study. She testified that this was a dangerous condition for
appellant to expose his dogs to and that the dogs suffered from being confined in appellant’s
vehicle for more than 40 minutes. Aside from the 84-degree temperature, Officer Svigel
testified the humidity on July 28, 2016, was 74%, with a maximum humidity of 94% for the day.
(Tr. 85.)
{¶71} Officer Svigel testified regarding her observations of appellant’s dogs. She
explained that the dogs were “panting profusely with very dry, hot tongues.” (Tr. 108.) Based
on her observations, she believed that the dogs were beginning to become distressed, and that
they were showing signs of heatstroke or dehydration. Officer Svigel believed that the dogs
were dehydrated based on “[t]he fact that their tongues were bone dry, and they were sticking
their faces right up to the glass and not a bit of drool was coming down [the windows], and they
were panting profusely, which is what dogs do when they are excessively overheated.” (Tr.
108-109.) She asserted that the dogs’ tongues were dried out and she described the color of
their tongues as “whiteish” rather than pink. (Tr. 109.)
{¶72} Officer Svigel testified that she reached her hand into appellant’s vehicle to see if it
felt warmer inside the vehicle compared to where she was standing outside the vehicle. After
reaching her hand inside the vehicle, she concluded that “[i]t was significantly warmer where my
hand was compared to where I was standing outside the vehicle.” (Tr. 95.) On
cross-examination, defense counsel suggested that it was windy on the day in question.
However, Officer Svigel asserted that she did not feel any wind circulating into the vehicle when
she stuck her hand inside. Officer Svigel confirmed that the conditions and observations that
factored into her decision to arrest appellant were the 84-degree temperature, the duration of the
confinement, the lack of access to water, and the condition of the dogs.
{¶73} After review, we find that Officer Svigel’s testimony was based on her own
personal knowledge and experience as established by the city. Additionally, Officer Svigel’s
testimony related specifically to her own firsthand observations, her actions on the scene, and
why she undertook such actions, i.e., reaching her hand inside the vehicle to determine the
temperature inside where the dogs were confined. Officer Svigel’s testimony was helpful to
determine a fact in issue — whether appellant was negligent in confining his dogs inside his
vehicle on July 28, 2016, without access to water and without shelter from heat, and whether the
dogs could reasonably be expected to become sick or suffer as a result of the deprivation or
confinement. Accordingly, the trial court neither abused its discretion nor committed plain
error in allowing Officer Svigel to testify on these matters.
{¶74} Finally, we note that this was a bench trial. In a bench trial, the trial court is
presumed to consider only reliable, relevant, and competent evidence in rendering its decision
unless it affirmatively appears to the contrary. State v. White, 15 Ohio St.2d 146, 151, 239
N.E.2d 65 (1968). There is nothing in the record before this court indicating that the trial court
considered improper evidence. Based on the foregoing analysis, we find that Officer Svigel’s
testimony alone, if believed, was sufficient to support appellant’s conviction for cruelty to
companion animals.
{¶75} Second, eyewitnesses Friedman and Sustin also reasonably believed, based on their
observations, that the dogs would become sick and/or suffer as a result of appellant’s negligence.
Friedman described herself as a “dog person” and explained that she has two dogs of her own.
She testified that she was worried about the dogs because she thought it was too hot outside to
leave the dogs in the car. She tried to give the dogs water because she thought they were in
distress and she did not want them to die as a result of being confined in the vehicle. She
explained that she would have called the police even if the dogs had access to water inside the
vehicle because she felt that the air was hot enough. Friedman explained that it was cloudy,
rather than sunny, on July 28, 2016. Nevertheless, she opined that it was “hot enough” to cause
the dogs to be in distress.
{¶76} Sustin explained that she is a dog owner. She currently has two dogs and has
owned eight dogs over the years. She testified that on July 28, 2016, it was very hot outside of
appellant’s vehicle. She opined that it would have been “extremely uncomfortable” for the dogs
inside the car due to the heat, the fact that the vehicle’s windows were not rolled all the way
down, and the air conditioning was not on. Under these circumstances, she considered the
condition in which the dogs were confined to be dangerous. Sustin opined that the dogs were in
danger and she was concerned that they were going to die.
{¶77} Sustin testified that even if the dogs had access to water inside the vehicle, it was
too hot to confine the dogs inside the vehicle. She explained, “[i]t was too hot in the car water
or not. You — they say all the time that the heat in a car can fry a dog or a child’s brain
regardless of whether there’s water there. It was ridiculously hot outside.” (Tr. 70.) She
confirmed that she thought that the dogs were suffering and in danger as a result of being
confined in appellant’s vehicle.
{¶78} Both lay witnesses, Friedman and Sustin, testified as to their observations of the
dogs and based on those observations, both Friedman and Sustin reasonably believed that the
dogs were in danger and/or distressed as a result of being confined in appellant’s vehicle. This
testimony, if believed, is sufficient to support appellant’s conviction.
{¶79} For all of the foregoing reasons, we find that the trial court properly denied defense
counsel’s motions for a Crim.R. 29 judgment of acquittal, and appellant’s conviction is
supported by sufficient evidence. Accordingly, appellant’s fifth assignment of error is
overruled.
E. Manifest Weight
{¶80} In his sixth assignment of error, appellant argues that his conviction for cruelty to
companion animals is against the manifest weight of the evidence.
{¶81} In contrast to a sufficiency argument, a manifest weight challenge questions
whether the state met its burden of persuasion. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598, at ¶ 12. A reviewing court “weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in resolving conflicts in
the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.” Thompkins, 78 Ohio St.3d at 388,
678 N.E.2d 541. A conviction should be reversed as against the manifest weight of the
evidence only in the most “exceptional case in which the evidence weighs heavily against the
conviction.” Id.{¶82} Although we review credibility when considering the manifest weight of the
evidence, we are cognizant that determinations regarding the credibility of witnesses and the
weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th Dist. Cuyahoga
No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967). The trier of fact is best able “to view the witnesses and observe their demeanor,
gestures, and voice inflections, and use these observations in weighing the credibility of the
proffered testimony.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
¶ 24. The jury may take note of any inconsistencies and resolve them accordingly, “believ[ing]
all, part, or none of a witness’s testimony.” State v. Raver, 10th Dist. Franklin No. 02AP-604,
2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
{¶83} In the instant matter, as noted above, Friedman, Sustin, and Officer Svigel testified
that the dogs did not have access to water inside the vehicle, they did not hear or see a ventilation
system operating inside the vehicle, and as a result, they believed that the dogs were suffering
and in danger as a result of appellant’s negligence.
{¶84} Appellant, on the other hand, testified that after he purchased his vehicle at the end
of 2014, he modified it to create a ventilation system, explaining “I set a temperature for the
system, and if it goes above — if it goes above a temperature fans come on and they pull air in
from beneath the truck and — and into the truck, into the car.” (Tr. 168.) He testified that he
created the ventilation system for his dogs and to ensure that they would not overheat. He
asserted that the ventilation system was in place on July 28, 2016.
{¶85} Appellant testified that the dogs had access to water inside the vehicle. He
explained that the cup holders in his truck “are designed to hold two big large cups, are just a
reservoir sitting there. So I used — I repurposed that for holding water.” (Tr. 219.)
Appellant asserted that he poured water into the cup holders for the dogs before he left his
vehicle and went into his appointment.
{¶86} In addition to appellant’s testimony, Larson, appellant’s wife, testified about the
ventilation system in appellant’s vehicle. She asserted that appellant always keeps water in the
vehicle for the dogs. As noted above, Shaughnessy hypothesized that the dogs either had access
to water inside the vehicle or that the vehicle’s ventilation system was on.
{¶87} In support of his manifest weight challenge, appellant asserts that “there is simply
no credible evidence that can be used to prove that [he] was guilty of cruelty to companion
animals.” Appellant’s brief at 30. He challenges the trial court’s determinations that (1) the
dogs did not have access to water inside the vehicle, (2) appellant’s vehicle was neither running
nor remotely started when the dogs were confined, and (3) the ventilation or “cooling” system
was not operating during the confinement.
{¶88} First, appellant argues that the trial court’s determination that the dogs did not have
access to water inside the vehicle is against the manifest weight of the evidence. Regarding
Officer Svigel’s testimony that she did not observe any water inside the vehicle, appellant argues
that she was only looking for a bowl or saucer of water, and that she did not know that appellant
left water for the dogs inside the vehicle’s cup holders, nor look to see whether there was, in fact,
water inside the cup holders.
{¶89} Appellant contends that the evidence presented at trial demonstrated that the dogs
were not dehydrated. In support of this argument, appellant asserts that both Shaughnessy and
Larson testified that the dogs’ dried out tongues did not indicate that the dogs were dehydrated.
He further suggests that if the dogs were, in fact, dehydrated, they would have attempted to break
through the windows when Sustin attempted to provide water to them through the cracked
windows.
{¶90} Second, regarding the trial court’s finding that appellant’s vehicle was neither
running nor remotely started while the dogs were confined inside, appellant argues that this
finding is insignificant. Appellant asserts that he had the ventilation system in the vehicle,
which operated even if the vehicle was not on, and that Shaughnessy opined that the ventilation
system could keep the dogs safe.
{¶91} Third, regarding the trial court’s finding that the ventilation system was not
operating while the dogs were confined, appellant argues that the city’s witnesses could not have
heard the ventilation system from outside the vehicle when the doors were closed. In support of
this argument, he emphasizes that Shaughnessy described the sound of the ventilation system as a
quiet, humming noise. He further argues that there was no credible evidence regarding the
temperature inside the vehicle, and that Officer Svigel did not inspect the inside of his vehicle
nor the ventilation system he installed.
{¶92} Finally, appellant argues that the trial court disregarded the testimony of Larson.
Larson testified that she was in the canine unit in the Army. Furthermore, she is a preveterinary
student, she works as an intern with a veterinarian, and she volunteers at the Cuyahoga County
Animal Shelter.
{¶93} Larson testified that she told appellant to leave the dogs in his car during his
appointment on July 28, 2016, because she knew about the ventilation system in his car and she
knew that he always keeps water in the car. Larson believed that the dogs were “100% safe” in
the car. (Tr. 207.)
{¶94} Larson went to the police station after receiving a call from appellant. Thereafter,
she took the dogs to the veterinarian to make sure that they were okay. However, she explained
that she did not believe that the dogs were suffering in any way. Larson asserted that she knows
the symptoms to look for that indicate a dog is suffering from heat exposure. She explained that
heatstroke could cause vomiting and dizziness, thick saliva, and a red tongue.
{¶95} On cross-examination, Larson testified that she put the dogs in appellant’s vehicle
before appellant left for work in the morning on July 28, 2016. However, she acknowledged
that several hours had elapsed between the time that she put the dogs inside appellant’s vehicle in
the morning and the time that the police officers escorted appellant and his dogs to appellant’s
house.
{¶96} Larson was not present when appellant arrived at his house with the dogs and the
police officers. She testified that the dogs were at appellant’s house for approximately two
hours before she saw them after the incident and took them to the veterinarian’s office. During
this two-hour time period during which the dogs were at appellant’s house, the dogs had access
to water. The dogs also had access to water between the time that they were confined in
appellant’s vehicle and the time that Larson took them to the veterinarian’s office.
{¶97} Larson acknowledged that she was not present with appellant when he went to his
appointment. She was not in the vehicle and did not see the vehicle at any time in the afternoon
on July 28, 2016. Larson had no direct knowledge regarding the conditions inside appellant’s
vehicle at the time the police were called to the scene. Specifically, Larson had no direct
knowledge regarding whether the dogs had access to water when they were confined in the
vehicle during appellant’s appointment, or whether the ventilation system in appellant’s vehicle
was, in fact, operating.
{¶98} After reviewing the record in this case, we cannot say that this is “an exceptional
case” in which the trial court clearly lost its way and created such a manifest miscarriage of
justice that appellant’s cruelty to companion animals conviction was against the manifest weight
of the evidence. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. First, Friedman, Sustin,
and Officer Svigel all testified that they did not observe any water inside the vehicle. This
testimony is supported by Officer Svigel’s observation that the dogs’ tongues were “bone dry.”
While it is conceivable that (1) there was water in the vehicle’s cup holders and (2) the witnesses
were unable to observe this water supply from outside the vehicle, the witnesses did not observe
the dogs drinking water during the 40-minute period of time that they were on the scene.
{¶99} Second, Friedman and Sustin testified that they did not hear any sounds or fan
noises inside appellant’s vehicle. While it is conceivable that these witnesses were unable to
hear the ventilation system, Officer Svigel testified that the temperature inside the vehicle was
significantly hotter than the temperature outside, and that she did not feel any wind circulating
into the vehicle. Officer Svigel approximated that the temperature inside the vehicle was
between 118 and 123 degrees. Had the ventilation system been working, the temperature inside
the vehicle should have been cooler than the temperature outside.
{¶100} The defense’s theory of the case was that the dogs had access to water inside the
vehicle, and thus, appellant did not deprive them of water, and that the vehicle’s ventilation
system protected the dogs from the heat. On the other hand, the city’s theory of the case was
that appellant negligently deprived the dogs of water and confined them in his vehicle without
sheltering the dogs from the heat, and that it could reasonably be expected that the dogs would
become sick or suffer as a result of appellant’s negligence. Appellant’s conviction is not
against the manifest weight of the evidence simply because the trial court chose to believe the
city’s version of the events rather than appellant’s. See State v. Adhikari, 2017-Ohio-460, 84
N.E.3d 282, ¶ 55 (8th Dist.).
{¶101} The trial court, as the trier of fact, was in the best position to weigh the credibility
of the witnesses. Although appellant relies heavily on the testimony of Shaughnessy and Larson
in support of his manifest weight challenge, these witnesses were not present at the scene, they
did not observe the dogs firsthand while they were confined in appellant’s vehicle, and they had
no firsthand knowledge regarding the conditions under which the dogs were confined. The trial
court was free to find — and clearly did find — the testimony of the city’s witnesses to be more
credible than the testimony of appellant, Shaughnessy, and Larson.
{¶102} Based on the foregoing analysis, appellant’s sixth assignment of error is
overruled.
F. Sentence
{¶103} In his second assignment of error, appellant argues that the trial court erred by
imposing a sentence of inactive probation in its sentencing judgment entry without imposing the
sentence in open court during the April 3, 2017 sentencing hearing.
{¶104} It is axiomatic that a criminal defendant has a fundamental right to be present at
all critical stages of his criminal trial, including the imposition of sentence. State v. Taylor, 8th
Dist. Cuyahoga No. 104243, 2017-Ohio-9270, ¶ 3, citing Section 10, Article I, Ohio
Constitution, Crim.R. 43(A), and State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892
N.E.2d 864.
“A trial court cannot impose a sentence in the sentencing entry that differs from
that it imposed at the sentencing hearing.” State v. Vaughn, 8th Dist. Cuyahoga
No. 103330, 2016-Ohio-3320, ¶ 18; see also State v. West, 9th Dist. Summit No.
27485, 2015-Ohio-2936, ¶ 49-52 (matter remanded for resentencing where trial
court sentenced defendant on drug paraphernalia count in sentencing journal entry
after trial court failed to address that count at sentencing hearing); State v.
Jackson, 1st Dist. Hamilton No. C-140178, 2014-Ohio-5008, ¶ 22 (“a trial court’s
sentence is contrary to law when it imposes a sentence in the sentencing entry
different from the sentence announced at the sentencing hearing”)[.]
State v. Alvelo, 2017-Ohio-742, 85 N.E.3d 1032, ¶ 35 (8th Dist.).
{¶105} In Cleveland v. Clemons, 90 Ohio App.3d 212, 628 N.E.2d 141 (8th Dist.1993),
this court held that the trial court committed reversible error by imposing an additional condition
of probation outside of the defendant’s presence. Id. at 214. The additional condition required
the defendant to submit to random drug testing. This court concluded that Crim.R. 43(A)
required the trial court to amend the terms of probation in the physical presence of the defendant.
Id.
{¶106} In the instant matter, appellant argues that the trial court did not sentence him to
inactive probation during the sentencing hearing, but the trial court imposed an unspecified term
of inactive probation in its sentencing judgment entry. On the other hand, the city argues that
the transcript from the April 3, 2017 sentencing hearing clearly reflects that the trial court
sentenced appellant to probation, and that the trial court found that appellant did not need to be
monitored on active probation.
{¶107} During the sentencing hearing, the prosecutor conceded that appellant loves and
takes excellent care of his dogs. The prosecutor stated that he believes “there’s no issue or need
for dog education” and that he had full confidence that there would not be any incidents
involving appellant’s dogs in the future. Defense counsel advised the trial court that appellant
prayed for leniency and opined that a fine would be an adequate sentence. Defense counsel
explained, “I don’t believe that [appellant] is an individual who needs to be monitored on
probation.” (Tr. 293.)
{¶108} The trial court agreed with the prosecutor’s and defense counsel’s statements.
The trial court imposed the following sentence:
I am going to suspend $300 of the $500 fine on condition that in the next 12
months there are no further dog charges. And I am also staying the sentence to
indicate sentence to be appealed or fines and costs paid within 30 days. So that
will allow you and [defense counsel] to discuss what will happen next. But in
essence, it’s [$]200 and costs, all right.
(Tr. 293-294.)
{¶109} The trial court placed appellant on inactive probation in its April 3, 2017
sentencing judgment entry. The sentencing judgment entry provides, in relevant part,
“[s]uspension of $300 of fine * * * on condition that there are no further similar type convictions
during the probation period and that defendant successfully complies with all of the conditions of
probation including paying fines and costs as ordered.” (Emphasis added.) There is a
handwritten note stating that $300 of the fine is suspended on the condition that there are “no
other dog violations.”
{¶110} After reviewing the record, we find that the trial court did not sentence appellant
to inactive probation during the sentencing hearing. The trial court made no mention of
probation — either active monitoring or inactive — during the sentencing hearing, much less
impose a sentence of inactive probation.
{¶111} Although the trial court’s sentencing judgment entry references the “conditions of
probation,” neither probation nor any conditions thereof were discussed or imposed in open
court. The only “condition” discussed during the sentencing hearing — that appellant was not
charged with any dog offenses in the next year — pertained to the suspension of $300 of the
$500 fine, not a sentence of probation.
{¶112} We further find that a sentence of inactive probation cannot be implied from the
trial court’s conditionally suspended fine. Nor can a sentence of inactive probation be implied
from the trial court’s statement that it agreed with defense counsel’s assertion that appellant did
not need to be monitored on probation. Defense counsel did not argue that a sentence of
inactive probation would be more appropriate than a sentence of active probation — counsel
opined that it was not necessary to sentence appellant to probation and that a fine, rather than
probation, was an appropriate sentence.
{¶113} Based on the foregoing analysis, appellant’s second assignment of error is
sustained. The imposition of inactive probation is vacated.
III. Conclusion
{¶114} After thoroughly reviewing the record, we affirm appellant’s conviction for
cruelty to companion animals. Appellant failed to demonstrate that he was prejudicially misled
as a result of the numerical errors in the complaint and the trial court’s March 3, 2017 judgment
entry regarding the subsection of the cruelty to companion animals offense with which appellant
was charged and convicted. The trial court did not presume that appellant was guilty based on
the statements he made to Officer Svigel in the parking lot, and appellant’s Fifth Amendment
privilege against self-incrimination was not violated. The trial court did not arbitrarily disregard
Shaughnessy’s expert testimony. Appellant’s conviction is supported by sufficient evidence
and is not against the manifest weight of the evidence.
{¶115} The trial court erred by sentencing appellant to inactive probation in its sentencing
judgment entry without imposing the probation sentence in open court during the sentencing
hearing. Accordingly, the imposition of inactive probation is vacated.
{¶116} The trial court’s March 3, 2017 judgment entry erroneously states that appellant
was charged with violating B.C.O. 618.051(c)(2). Furthermore, the trial court’s April 3, 2017
sentencing judgment entry erroneously states that appellant was charged with “cruelty to
animals” rather than cruelty to companion animals. Accordingly, we remand this case to the
trial court for the limited purpose of issuing nunc pro tunc judgment entries that accurately reflect
the offense with which appellant was charged and convicted.
{¶117} Judgment affirmed in part; vacated in part; and remanded for further proceedings
consistent with this opinion.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Shaker Heights
Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
EILEEN A. GALLAGHER, A.J., and
TIM McCORMACK, J., CONCUR