[Cite as State v. Sullivan, 2014-Ohio-1687.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                               BUTLER COUNTY




STATE OF OHIO,                                       :

        Plaintiff-Appellee,                          :     CASE NO. CA2013-05-086

                                                     :          OPINION
    - vs -                                                       4/21/2014
                                                     :

ANGELA B. SULLIVAN,                                  :

        Defendant-Appellant.                         :



                  CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT
                                Case No. 13 CRB 00555



Geoffrey Modderman, Hamilton City Prosecutor, 345 High Street, 2nd Floor, Hamilton, Ohio
45011, for plaintiff-appellee

Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant



        HENDRICKSON, J.

        {¶ 1} Defendant-appellant, Angela B. Sullivan, appeals her conviction and sentence

in the Hamilton Municipal Court for cruelty to a companion animal, a misdemeanor of the

second degree. For the reasons discussed below, we affirm appellant's conviction and

sentence.

        {¶ 2} On February 8, 2013, Butler County Humane Officers Julie Holmes and Kurt

Merbs responded to a residence on Vine Street in Hamilton, Ohio based upon concerns
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about an animal at that location. The officers had received a phone call from James Combs,

who indicated he was moving into the residence and believed the former owner had

abandoned a dog on the property. Upon arriving at the residence, the officers found a mix-

breed pit bull chained inside a fenced, outdoor area of the property. The only shelter for the

dog consisted of an overhang at the back of the house, some straw spread on the ground,

and a blanket. The dog appeared slightly dehydrated and significantly underweight, with its

ribs, backbone, and hipbones visible to the officers. The officers observed water and food

sitting out for the dog.

       {¶ 3} While checking on the dog, the officers encountered appellant, who had arrived

at the property to pick up personal belongings she had left at the residence. At this time,

appellant informed the officers she had previously lived at the residence, but had been forced

to move out after she and her boyfriend broke up. Appellant told the officers she had been

the dog's owner for "about two years" but she had given the dog away two weeks ago.

Appellant claimed she had given the dog to "Farmer Joe," a man whose last name, phone

number, and address she could not recall. Appellant then gave officers conflicting stories

about when she was last at the property. She first claimed she had not been on the property

in two weeks, but then later stated she came to the property every day. Appellant told the

officers she had arranged for her former roommate, Combs, to care for the dog until "Farmer

Joe" could come get the dog or arrangements to take the dog to "Farmer Joe" were made.

       {¶ 4} Ultimately, the dog was taken into custody by the officers on February 8, 2013,

and appellant was cited for cruelty to a companion animal in violation of R.C. 959.131(C)(2)

and for the failure to register the dog in violation of R.C. 955.21. A bench trial was held on

the charges on April 15, 2013. At this time, the state presented the testimony of Officer

Holmes, Officer Merbs, and of Dalton Shroyer, an associate veterinarian who had completed

an examination of the dog. Merbs and Holmes testified as to the condition of the dog upon

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their arrival at the scene and about appellant's inconsistent statements regarding when she

was last at the property, who owned the dog, and who was supposed to be caring for the

dog. Pictures of the dog, depicting its condition at the time officers found it on February 8,

2013, were entered into evidence.

       {¶ 5} Shroyer then testified as to the condition of the dog on February 8, 2013.

Although there were no signs of frostbite and no evidence of physical assault, Shroyer stated

the dog was, "very, very emaciated" and was nearly 20 pounds underweight. The dog had a

fever and upper respiratory infection, was dehydrated, was covered in dirt and fleas, and was

so weak that it had trouble walking around and getting up after it laid down. In Shroyer's

expert opinion, "[i]f the dog had been provided adequate food and water, there would be no

reason for the weight loss to the degree * * * [seen] in the animal." Shroyer further testified

that after receiving medication, food, and water, the dog's health recovered.

       {¶ 6} Following the presentation of the state's case-in-chief, appellant made a

Crim.R. 29 motion for acquittal. The trial court granted the motion as to the failure to register

charge, but denied the motion for acquittal on the cruelty to a companion animal charge.

Appellant then took the stand in her own defense. Appellant testified she had lived at the

residence on Vine Street with her boyfriend, Matthew Bowling, her two children, and Combs

until Thanksgiving of 2012, when she was forced to leave the residence after Bowling ended

their relationship. Appellant claimed she had been forced to leave with only the "clothes on

[her] back" and she had been unable to take the dog. She stated that the dog was an

"outside dog" and she had always left him outside with bales of hay and a blanket for

protection and comfort. She testified that she had asked Combs to feed and care for the dog

while she had made arrangements to have the dog taken to a farm. According to appellant,

Combs agreed to care for the dog and he was supposed to contact Farmer Joe and ask him

to come get the dog. She testified she had only been back to the Vine Street residence two

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times since she had been kicked out, and, prior to February 8, 2013, she had not seen the

dog since before Thanksgiving 2012. Appellant did not call any additional witnesses in her

defense.

       {¶ 7} The trial court ultimately found appellant guilty of cruelty to a companion animal,

stating:

              I find that the state has established beyond a reasonable doubt
              every possible way you could violate [R.C. 959.131(C)(2)]. The
              defendant um - - left the dog and just left it. And she left the
              residence and left the dog there and the dog was uh - -
              emaciated and um - - did not have appropriate place for it to stay
              [sic]. It was sick. It got better right when the police - - right when
              it was taken to the vet um - - after it had some medicine and after
              it was fed. So I find the defendant to be guilty of that offense.
              Her testimony was not credible. It was in conflict with what the
              officers testified about what her statements were and I find the
              officers testimony [sic] to be credible in that case the animal
              control officers. And so that's the basis for my decision in the
              case.

       {¶ 8} On March 15, 2013, appellant was sentenced to 90 days in jail, with 80 days

stayed. The court also imposed a $400 fine, assessed court costs, and placed appellant on

a two-year term of nonreporting community control.

       {¶ 9} Appellant timely appealed, raising two assignments of error.

       {¶ 10} Assignment of Error No. 1:

       {¶ 11} THE GUILTY VERDICT FOR A VIOLATION OF R.C. 959.131(C)(2) WAS

CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 12} In her first assignment of error, appellant argues her conviction for cruelty to a

companion animal is against the manifest weight of the evidence. Appellant contends the

state failed to prove beyond a reasonable doubt that she "confined" the dog or that she was

the "custodian or caretaker" of the dog within the meaning of R.C. 959.131(C)(2).

       {¶ 13} A manifest weight of the evidence challenge examines the "inclination of the

greater amount of credible evidence, offered at a trial, to support one side of the issue rather
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than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶

14. To determine whether a conviction is against the manifest weight of the evidence, the

reviewing court must look at the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether in resolving the

conflicts in the evidence, the trier of fact 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.

Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. In reviewing the

evidence, an appellate court must be mindful that the trier of fact was in the best position to

judge the credibility of witnesses and determine the weight to be given to the evidence. State

v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 114 (12th Dist.).                  "The

discretionary power to grant a new trial should be exercised only in the exceptional case in

which the evidence weighs heavily against the conviction." Id., citing State v. Thompkins, 78

Ohio St.3d 380, 387 (1997).

       {¶ 14} Appellant was convicted of cruelty against a companion animal in violation of

R.C. 959.131(C)(2), which provided:

              (C) No person who confines or who is the custodian or caretaker
              of a companion animal shall negligently do any of the following:

              ***

              (2) Deprive 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 or
              confinement in any of those specified manners.

Former R.C. 959.131(C)(2). The terms "confine," "custodian," and "caretaker" are not

defined by the statute. As such, the terms will be accorded their common, ordinary, plain,
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everyday meanings. State v. Martin, 12th Dist. Brown No. CA99-09-026, 2000 WL 1145465,

* 5 (Aug. 14, 2000); Sharp v. Union Carbide Corp., 38 Ohio St.3d 69, 70 (1988). To "confine"

means "to hold within bounds" or "to keep to a certain place or to a limited area." Webster's

Third New International Dictionary 476 (1993). A "custodian" is "one that guards and

protects or maintains" or "one entrusted officially with guarding and keeping." Id. at 559. A

"caretaker" is "one that is placed * * * in charge of the upkeep * * * and protection of the

house * * * of an owner who may be absent." Id. at 339.

       {¶ 15} In this case, the trial court, as the trier of fact, heard evidence that appellant

was the owner of the dog, appellant had "always" held or kept the dog outside in the fenced-

in area, and appellant had left the dog behind when she left the residence in November 2012.

The trial court also heard conflicting stories about the frequency in which appellant had

returned to the apartment, either every day since being kicked out of the residence or only

one time prior to February 8, 2013, and conflicting stories about who was supposed to be

caring for the dog, either the "new owner, Farmer Joe," or Combs. The trial court further

heard evidence from a veterinarian that the dog was emaciated, dehydrated, and sick when it

was found. Shroyer offered his expert opinion that, "[i]f the dog had been provided adequate

food and water, there would be no reason for the weight loss to the degree * * * [seen] in the

animal."

       {¶ 16} From the evidence presented, the trial court was entitled to find appellant was

the individual who "confined" the dog without providing it with sufficient quantities of good,

wholesome food and water. It was within the province of the judge, as the trier of fact, to

believe or disbelieve the evidence presented by the witnesses. State v. Meyers, 12th Dist.

Butler CA2004-09-219, 2005-Ohio-4919, ¶ 12. The judge was in the best position to weigh

evidence and assess witness' credibility. Id. The evidence offered by the state, including the

photos of the dog and the testimony of Homes, Merbs, and Shroyer, supports the trial court's
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verdict. "It is well-established that when conflicting evidence is presented at trial, a conviction

is not against the manifest weight of the evidence simply because the trier of fact believed

the prosecution testimony." State v. Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-

Ohio-6529, ¶ 17.

       {¶ 17} Given the evidence before the trial court, we find that appellant's conviction for

cruelty to a companion animal was not against the manifest weight of the evidence.

Appellant's first assignment of error is, therefore, overruled.

       {¶ 18} Assignment of Error No. 2:

       {¶ 19} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN THE

IMPOSITION OF COURT COSTS.

       {¶ 20} In her second assignment of error, appellant argues the trial court erred by

failing to advise her at the sentencing hearing that she could be ordered to perform

community service if she failed to pay court costs, in accordance with R.C. 2947.23(A)(1).

Appellant argues that "judgment should be modified to eliminate the potential for community

service" or, alternatively, "the matter [should] be remanded to the trial court for the proper

imposition of costs pursuant to R.C. 2947.23(A)(1)."

       {¶ 21} R.C. 2947.23 has recently undergone multiple revisions. The most current

version of the statute, enacted on March 22, 2013 by 2012 Am.Sub.H.B. 247 (H.B. 247), was

in effect at the time of appellant's May 15, 2013 sentencing. The statute provides:

              (A)(1)(a) In all criminal cases, including violations of ordinances,
              the judge or magistrate shall include in the sentence the costs of
              prosecution, including any costs under section 2947.231 of the
              Revised Code, and render a judgment against the defendant for
              such costs. If the judge or magistrate imposes a community
              control sanction or other nonresidential sanction, the judge or
              magistrate, when imposing the sanction, shall notify the
              defendant of both of the following:

                      (i) If the defendant fails to pay that judgment or fails to
                      timely make payments towards that judgment under a
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                     payment schedule approved by the court, the court may
                     order the defendant to perform community service in an
                     amount of not more than forty hours per month until the
                     judgment is paid or until the court is satisfied that the
                     defendant is in compliance with the approved payment
                     schedule.

                     (ii) If the court orders the defendant to perform the
                     community service, the defendant will receive credit upon
                     the judgment at the specified hourly credit rate per hour of
                     community service performed, and each hour of
                     community service performed will reduce the judgment by
                     that amount.

              (b) The failure of a judge or magistrate to notify the defendant
              pursuant to division (A)(1)(a) of this section does not negate or
              limit the authority of the court to order the defendant to perform
              community service if the defendant fails to pay the judgment
              described in that division or to timely make payments toward that
              judgment under an approved payment plan.

(Emphasis added.) R.C. 2947.23.

       {¶ 22} Appellant's sentence included a ten-day jail term, two years of community

control, and court costs. As appellant received a community control sanction, the trial court

should have advised her under R.C. 2947.23(A)(1)(a) that the failure to pay court costs could

result in court-ordered community service of up to 40 hours a month. However, pursuant to

R.C. 2947.23(A)(1)(b), the court's failure to advise appellant of the possible community

service "does not negate or limit the authority of the court to order the defendant to perform

community service if the defendant fails to pay the judgment." The plain language of the

statute provides that a trial court's failure to comply with R.C. 2947.23(A)(1)(a) does not later

prevent the court from imposing community service. See R.C. 2947.23(A)(1)(b). As we have

previously acknowledged, by enacting R.C. 2947.23(A)(1)(b), "the Legislature specifically

intended to allow courts to order community service for the failure to pay court costs

regardless of whether the court informed the defendant of such." State v. Brown, 12th Dist.

Butler No. CA2013-03-043, 2014-Ohio-1317, ¶ 31, citing State v. Huntsman, 7th Dist.


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Monroe No. 13 MO 6, 2014-Ohio-440, ¶ 14. Consequently, there is no longer a need to

reverse and remand for resentencing when the sentencing error involves the failure to notify

a defendant under R.C. 2947.23(A)(1)(a) of possible community service for neglecting to pay

imposed court costs. See id. at ¶ 32.

      {¶ 23} We therefore conclude that the trial court did not err in failing to notify appellant

at the sentencing hearing that it could order her to perform community service in the event

she failed to pay imposed court costs. See Brown at ¶ 31-32; State v. Lane, 12th Dist. Butler

No. CA2013-05-074, 2014-Ohio-562, ¶ 37. Appellant's second assignment of error is

overruled.

      {¶ 24} Judgment affirmed.


      RINGLAND, P.J., and S. POWELL, J., concur.




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