State v. Roberson , 2022 Ohio 2696 ( 2022 )

[Cite as State v. Roberson, 2022-Ohio-2696.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Earle E. Wise, P.J.
Plaintiff - Appellee : Hon. W. Scott Gwin, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
TIFFANY ROBERSON, : Case No. 2021CA00125
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Canton Municipal
Court, Case No. 2021CRB02840
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 3, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KRISTEN BATES AYLWARD D. COLEMAN BOND
Canton Law Director 600 Courtyard Centre
116 Cleveland Avenue N.W.
By: JASON P. REESE Canton, Ohio 44702
Canton City Prosecutor
AMANDA F. BRUNSON
Assistant City Prosecutor
218 Cleveland Ave. SW
Canton, Ohio 44702
[Cite as State v. Roberson, 2022-Ohio-2696.]
Baldwin, J.
{¶1} Defendant-appellant Tiffany Roberson appeals her conviction and sentence
from the Canton Municipal Court on one count of cruelty to animals. Plaintiff-appellee is
the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On June 22, 2021, a complaint was filed in Canton Municipal Court charging
appellant with cruelty to animals in violation of R.C. 959.13(A)(4), a misdemeanor of the
first degree. At her arraignment on June 25, 2021, appellant entered a plea of not guilty
to the charge.
{¶3} Subsequently, a jury trial commenced on October 8, 2021. At the trial,
Samuel Phillips testified that he was appellant’s neighbor and was able to see her
property from his. He testified that he called the police on June 19, 2021 at around 11
a.m. in reference to a dog barking. Phillips testified that the dog had been barking since
2:30 a.m. Phillips testified that he observed a dog tied up in a cage that was covered by
a tarp. He testified that he did not see any food or water anywhere. Phillips testified that
before he called the police, he went out to check on the dog and that it could not move
more than two feet out of the cage. According to him, “it was pretty damn warm that day.”
Trial Transcript at 89. He testified that the dog’s ability to move and exercise freely was
restricted.
{¶4} On cross-examination, Phillips testified that he could not actually see the
dog in the cage and could not see inside the cage because it was covered by a tarp. He
testified that the bowls for food and water were outside on the side of the house away
from the dog’s reach. When asked if he knew if there was food and water inside the cage,
[Cite as State v. Roberson, 2022-Ohio-2696.]
Phillips testified that there was no food and water in the bowls. Phillips further testified
that the cage had dog feces all over the cage and around it.
{¶5} Peggy Phillips, Samuel Phillip’s wife, testified that she saw the metal cage
covered with a tarp and that the tarp was tucked in on one corner. She testified that it was
very humid and hot that day and that there was no way for air to get through. Peggy
Phillips further testified that she did not see food or water and that the dog did not have
room to move. She testified that she never saw the dog out of the cage and guessed that
the dog was in there for weeks. On cross-examination, Peggy Phillips testified that she
observed appellant’s house daily because her yard faced it. She testified that she lifted
up the tarp to the cage on a different occasion and that she did not actually see the dog
inside its cage on June 19, 2021.
{¶6} Jolene Gregel, the kennel manager for the Stark County Humane Society,
testified that Ohio law requires that dogs outside for more than 15 minutes must have a
shelter to escape the elements whether it is a house or a pen. A pen is usually a fenced-
in open area where the dog can run loose while a house has a place to escape the
elements. A house would require enough room for the dog to walk in, stand up and turn
around.
{¶7} Gregel testified that she was not present when the dog was found. She,
however, observed the cage and that air flow could not get through because the tarp was
zip-tied on the sides and the back and the front was tucked in. She testified as follows
when asked what would happen to an animal in that container under the weather
conditions that day.
[Cite as State v. Roberson, 2022-Ohio-2696.]
{¶8} Q: Do you remember what the morning - - what the morning weather was
like? Was it sunny? Was it rainy?
{¶9} A: Um, I - - I don’t remember. They said it was raining. I don’t remember that.
I know if was very humid though so it probably had rained earlier in the day and it was
very hot. I had the air conditioning on which I don’t normally use.
{¶10} Q: What would that do to an animal in that container?
{¶11} A: Um, if kept in the container like that without being checked on, it could
cause heat exhaustion and heat stroke, liver failure, kidney failure. Especially with no
water and no air to breathe. It - - it could lead to other dire consequences including the
animal passing.
{¶12} Trial Transcript at 121-122. Gregel described the cage as a metal pop-up
used to hold animals for a couple of hours and testified that the dog would not have been
able to freely move or exercise in the case. Gregel further testified that appellant told her
that the dog had been in the cage from 10:00 p.m. the night before until 11:30 a.m. the
following morning which indicates that the dog had been in the cage for over 12 hours.
She testified that it was not safe for a dog to be in a cage that long because, due to the
tarp, no one would have known that she was in the cage unless she was barking or
whining.
{¶13} On cross-examination, Gregel testified that she observed the dog after its
removal by the police and that the dog was medically evaluated at the Humane Society
and found to be normal and healthy without any medical issues being noted for a lack of
airflow or heat exhaustion. She testified that it was not humane for an animal to be kept
in a cage with a tarp covering, but that she did not know how long or how often the dog
[Cite as State v. Roberson, 2022-Ohio-2696.]
was in that situation. Gregel admitted that at the Humane Society, the dog is confined
to the cage for 20 hours per day, but testified that it was not an enclosed cage and had
no top on it, so that there was free flowing air. In addition, the facility was air conditioned.
{¶14} On redirect, Gregel testified that while the Humane Society was a controlled
environment with air conditioning and a good air exchange, the cage that the dog was
found in had a lot of humidity, stagnant air and no air flow. The air quality was nowhere
near as good as at the shelter. In addition, the dog had no ability to move and get
wholesome exercise in her cage while at the shelter, the dog could “still move around and
walk around and play and bounce in our kennels.” Trial Transcript at 158. The dogs also
are taken out to run in a fenced in enclosure.
{¶15} Appellant testified at trial that she was evicted from her home in May of 2021
and was staying at the residence on Second Street on a temporary basis until she could
find other housing. She testified that the residence on Second Street was not pet friendly
so she could not bring the dog inside the residence. Appellant testified that the cage was
only a temporary arrangement for nighttime until she could obtain alternative housing and
that the dog was rarely in the cage during the day when the sun was out. She testified
that she put the tarp over the cage to protect her dog and that the tarp was not tucked
under all around the cage when she left her house on June 19, 2021.
{¶16} Appellant testified that she walked a lot every day and that she took the dog
with her. She testified that she always left food and water in the cage for the dog. On
cross-examination, appellant testified that the dog did not need to have enough room in
the cage to get wholesome exercise because she did not need it because she was out
and about with appellant and only slept in the cage. Appellant testified that airflow could
[Cite as State v. Roberson, 2022-Ohio-2696.]
get into the dog’s cage and that she did not tuck the tarp under the front of the cage, but
someone tampered with the tarp. She testified that she only zip-tied the tarp on the ends.
Appellant testified that she did not have the dog with her on June 19, 2021 because she
took the bus to the laundromat and the dog could not go on the bus.
{¶17} Officer William Guthrie testified that he knew appellant from her visits to the
Refuge of Hope where he worked security. He testified that he saw appellant two or three
time a week and that she often had the dog with her. He further testified that he didn’t
see the dog on June 19, 2021.
{¶18} At the conclusion of the evidence and the end of deliberations, the jury, on
October 12, 2021, found appellant guilty of cruelty to animals. As memorialized in a
Judgment Entry filed on October 14, 2021, appellant was ordered to serve one hundred
eighty (180) days in jail with all but one (1) day suspended and was placed on two years
of probation. The trial court further ordered the forfeiture of appellant’s dog.
{¶19} Appellant now appeal, raising the following assignments of error on appeal:
{¶20} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION AGAINST THE APPELLANT FOR THE OFFENSE OF
CRUELTY TO ANIMALS IN VIOLATION OF R.C. 959.13(A)(4).”
{¶21} “II. THE APPELLANT’S CONVICTION IS AGAINST THE MANIFEST
WEIGHT OT THE EVIDENCE PRESENTED, AN MUST BE REVERSED.”
I, II
{¶22} Appellant, in her two assignments of error, argues that her conviction for
cruelty to animals is against the manifest weight and sufficiency of the evidence. We
disagree.
[Cite as State v. Roberson, 2022-Ohio-2696.]
{¶23} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,
1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for
a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme
Court held as follows:
An appellate court's function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant's guilt beyond a reasonable
doubt. 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.
{¶24} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, 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 overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
[Cite as State v. Roberson, 2022-Ohio-2696.]
{¶25} We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 237 N.E.2d
212 (1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well on the written page.”
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260, 674 N.E.2d 1159.
{¶26} Appellant, in the case sub judice, was convicted of cruelty to animals in
violation of R.C. 959.13(A)(4). Such section states, in relevant part, as follows:
{¶27} (A) No person shall:…
{¶28} (4) Keep animals other than cattle, poultry or fowl, swine, sheep, or goats
in an enclosure without wholesome exercise and change of air, …
{¶29} We find that, viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found that appellant kept her dog in an
enclosure without wholesome exercise and change of air. There was testimony that the
dog was kept in a metal enclosure that was too small for her stature and that was covered
and sealed with a tarp on a hot and humid day. There was testimony that the enclosure
did not allow the dog to get free flowing air or wholesome exercise. Appellant’s neighbors
testified that the dog was rarely left out of the cage which was regularly covered by a tarp.
Jolene Gregel testified that appellant told her that the dog had been kept in these
conditions for at least twelve hours.
{¶30} While appellant argued that she demonstrated that the dog did receive
wholesome exercise through her testimony and the testimony of Officer Guthrie and that
she testified that she did not tuck the tarp under the cage, the jury, as trier of fact, was in
the best position to assess the credibility of the witnesses. Moreover, as is stated above,
[Cite as State v. Roberson, 2022-Ohio-2696.]
there was testimony that the dog was confined in a covered cage for extended periods of
time.
{¶31} Appellant also argues that the jury was not properly instructed and lost its
way. Appellant contends that the testimony of Gregel regarding the laws to keep animals
outside cages was improper as it was the role of the trial court to instruct the jury on law,
not the role of the State’s witness. Appellant also contends that the “law requirements”
described by Gregel are not requirements or duties imposed under R.C. 959.13(A)(4) and
that, as such, this improper testimony by Gregel clearly confused the jury and caused it
to lose its way and create a manifest miscarriage of justice.
{¶32} However, we concur with appellee that the jury could have easily come to
the conclusion that the dog did not have enough exercise or air within the cage that she
was enclosed in for twelve hours. The jury, based on appellant’s admission to Jolene
Gregel that the dog had been in the cage for more than twelve hours and the physical
condition of the cage on June 19, 2021, had more than enough evidence to determine
that appellant committed the offense of cruelty to animals. There was testimony that
appellant knowingly confined her dog in a cage outside and covered the cage with a tarp
that restricted airflow, causing her dog to be confined in hot, stagnant air, and that the
dog was confined in this manner for extended periods of time, preventing the dog from
enjoying wholesome exercise. We further find that the jury did not lose its way and that
appellant’s case is not the exceptional case where the evidence weighs heavily against
her conviction.
[Cite as State v. Roberson, 2022-Ohio-2696.]
{¶33} Based on the foregoing, we find that there was sufficient evidence to convict
appellant of cruelty to animals and that her conviction was not against the manifest weight
of the evidence.
{¶34} Appellant’s two assignments of error are, therefore, overruled. Accordingly,
the judgment of the Canton Municipal Court is affirmed.
By: Baldwin, J.
Wise, Earle, P.J. and
Gwin, J. concur.