[Cite as State v. Unger, 2017-Ohio-8824.]


                                       COURT OF APPEALS
                                   COSHOCTON COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :       JUDGES:
                                            :       Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                  :       Hon. William B. Hoffman, J.
                                            :       Hon. Earle E. Wise, Jr., J.
-vs-                                        :
                                            :
MICHELLE UNGER                              :       Case No. 2017CA0009
                                            :
        Defendant-Appellant                 :       OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Municipal Court,
                                                    Case No. CRB1600815




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   December 4, 2017




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

RICHARD J. SKELTON                                  PATRICK J. WILLIAMS
760 Chestnut Street                                 405 Chauncey Avenue, NW
Coshocton, OH 43812                                 New Philadelphia, OH 44663
Coshocton County, Case No. 2017CA0009                                                  2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Michelle Unger, appeals her February 9, 2017

conviction by the Municipal Court of Coshocton County, Ohio. Plaintiff-Appellee is the

state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶ 2} On October 18, 2016, appellant was charged with cruelty against

companion animals in violation of R.C. 959.131(D)(2), a misdemeanor in the second

degree. Said charge arose from the removal of her dog "Bruiser" from her home on

September 21, 2016.1

       {¶ 3} A bench trial commenced on February 8, 2017. By judgment entry filed

February 9, 2017, the trial court found appellant guilty, and sentenced her to forty days

in jail, thirty days suspended in lieu of compliance with three years of probation. The

trial court also ordered appellant to forfeit her dog to the Humane Animal Treatment

Association, and prohibited her from owning or caring for any companion animals for

three years.

       {¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

       {¶ 5} "THE TRIAL COURT ERRED AS ITS CONVICTION OF MICHELLE

UNGER FOR A VIOLATION OF R.C. 959.131(D)(2) WHICH WAS CONTRARY TO

THE MANIFEST WEIGHT OF THE EVIDENCE."



1Several dogs were removed from appellant's home. This case is limited to Bruiser. A
companion case involves a dog named "Yap" and his registered owner, Eric Unger,
appellant's son (App. No. 2017CA0001).
Coshocton County, Case No. 2017CA0009                                                 3


                                           I

      {¶ 6} In her sole assignment of error, appellant claims her conviction for cruelty

against companion animals was against the manifest weight of the evidence.          We

disagree.

      {¶ 7} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine "whether in resolving conflicts in the evidence, the jury [trial

court] clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d

380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only in

the exceptional case in which the evidence weighs heavily against the conviction."

Martin at 175.

      {¶ 8} Appellant was convicted of cruelty against companion animals in violation

of R.C. 959.131(D) which states the following:



             (D) No person who confines or who is the custodian or caretaker of

      a companion animal shall negligently do any of the following:

             (1) Torture, torment, or commit an act of cruelty against the

      companion animal;

             (2) Deprive the companion animal of necessary sustenance or

      confine the companion animal without supplying it during the confinement

      with sufficient quantities of good, wholesome food and water if it can
Coshocton County, Case No. 2017CA0009                                                  4


        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 or

        confinement;

               (3) 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 lack of adequate shelter.



        {¶ 9} Robert Hunt testified on September 21, 2016, he called the Coshocton

County Sheriff for a dog at-large. T. at 7. The dog, named Bruiser, belonged to his

neighbor who lived across the street. T. at 7, 10. Another neighbor came home, but

was unable to get out of her car because the dog was on her property barking at her. T.

at 8.

        {¶ 10} Kayla Fink testified on September 21, 2016, she arrived at home, exited

her car, and then jumped back in because appellant's dog was four feet away and

barking at her. T. at 12. She did not know if the dog was aggressive or not. Id. The

dog was on her sidewalk "almost by my steps." T. at 13.

        {¶ 11} Russell Dreher, the county Dog Warden, testified on September 21, 2016,

he was called for a dog at-large complaint. T. at 19. Mr. Dreher spoke to both Mr. Hunt

and Ms. Fink about the loose dog. T. at 21-22. Mr. Dreher observed the loose dog on

appellant's steps. T. at 21. He took custody of the dog and asked dispatch to contact

appellant, but dispatch was unable to make contact with her. T. at 22. He took pictures
Coshocton County, Case No. 2017CA0009                                                    5


of the dog and turned him over to the animal shelter. T. at 24-25; Plaintiff's Exhibit B.

On September 23, 2016, appellant called and told Mr. Dreher she was not at home as

she was out on the road working. T. at 27. Mr. Dreher was informed by appellant's son,

Eric Unger, that John Collins was hired to watch the dog. T. at 45, 51. Mr. Collins told

Mr. Dreher he watched the dog for a couple days and then left for an emergency. T. at

47, 49. Mr. Dreher issued a citation to appellant for failure to confine Bruiser which was

enhanced because of prior convictions, failure to have a current dog tag, and cruelty to

animals because of his condition. T. at 32-33.

       {¶ 12} Rachael Selders testified she was volunteering at the animal shelter and

was there when Bruiser was brought in. T. at 53. She opined the dog was "[v]ery

emaciated." T. at 54. She gave him two nice bowlfuls of food as he was very hungry.

T. at 55.

       {¶ 13} Dr. Christy Nicely, a veterinarian, observed a picture of Bruiser taken in

September and scored him a three out of nine, with five being ideal. T. at 65-66. When

she saw Bruiser almost a month later, she scored him a five out of nine. Id. Bruiser

had hookworms, fleas, flea dirt, worn incisors, a broken canine tooth, a firm testicle, a

skin lump in his right flank, and "a couple small areas of hair loss on his front legs." T.

at 67-68. When asked if the dog initially scored low because of the hookworms or

because he was deprived of food, Dr. Nicely opined, "I believe deprived of food"

because he was not treated for the hookworms during the time he improved. T. at 69.

His condition did not occur over a couple of days, but rather longer than a week. T. at

70.
Coshocton County, Case No. 2017CA0009                                                  6


       {¶ 14} Christina Sturtz, the county Humane Agent, testified she observed Bruiser

and opined he appeared emaciated and lacked both water and food. T. at 100. She

stated when given food and water, Bruiser reacted "typical of the animals I have seen

deprived of food and water. They don't know whether to eat or drink. It's a back-and-

forth thing." T. at 100-101.

       {¶ 15} John Collins testified appellant asked him to take care of her dog which he

did for a couple of days, but then left because "I had something I had to do and I wasn't

feeling good." T. at 110-111. He called another person that appellant had arranged to

watch the dog "if something ended up happening." T. at 111. That person came to the

house and he left. Id. He never received payment for watching the dog. T. at 110, 113.

No one in the home left him with any dog food to care for the dog. T. at 112-113. He

stated he "walked around Coshocton, gathered up cans, and got a $5 bag of dog food

because this is as much cans as I could get and fed them." T. at 112.

       {¶ 16} In defense, appellant called Brenda Roberts and Cody Weese.            Ms.

Roberts lived in appellant's home in September of 2016. T. at 124.         She testified

appellant cared for her dog, giving him food and water and taking him outside. T. at

125. When appellant went on the road for work, she made arrangements with Mr.

Collins and a Jessica Jensen to care for her dog. Id. Ms. Roberts observed appellant

hand them money. T. at 126. When appellant left the house, the dog was "in great

condition," which was two days before he was removed by the dog warden. T. at 126,

132.    Ms. Roberts stated Mr. Collins left after three days and did not make

arrangements with anyone else to care for the dog. T. at 127. She admitted two of her

dogs were also taken by the dog warden and she was facing charges. T. at 135-136.
Coshocton County, Case No. 2017CA0009                                                       7


       {¶ 17} Mr. Weese, a family friend, testified appellant always took care of her dog,

making sure food and water were available.          T. at 139.    Appellant always made

arrangements for someone to care for the dog when she left to go out on the road. T. at

141. He overheard appellant talking on the telephone about giving Mr. Collins $50 to

watch the dog. Id.

       {¶ 18} 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. Jamison, 49 Ohio St.3d 182, 552

N.E.2d 180 (1990). 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, 674 N.E.2d 1159 (1997).

       {¶ 19} After entertaining all of the testimony and evidence, the trial court found

Mr. Collins "was one of the least believable witnesses I've heard in a few days. The

Court concludes that in spite of Mr. Collins the State has proven all of the charges of the

defendants beyond a reasonable doubt." T. at 154.

       {¶ 20} Given the testimony and the evidence presented, we do not find that the

trial court lost its way. Appellant was the registered owner of Bruiser. Both Ms. Selders

and Ms. Sturtz testified to Bruiser looking emaciated and being very hungry. Dr. Nicely

explained although Bruiser had hookworms, the hookworms were not the cause of his

appearance because his condition improved after he was given food and water. She

opined Bruiser was deprived of food, and it took longer than a week for him to reach the

condition he was in at the time of his removal from the home. Appellant was at home

during this "longer" time period. Bruiser's ribs were clearly visible in the photographs.

       {¶ 21} Upon review, we do not find any manifest miscarriage of justice.
Coshocton County, Case No. 2017CA0009                                             8


      {¶ 22} The sole assignment of error is denied.

      {¶ 23} The judgment of the Municipal Court of Coshocton County, Ohio is hereby

affirmed.

By Wise, Earle, J.

Delaney, P.J. and

Hoffman, J. concur.




EEW/sg 1122
