[Cite as State v. Mills, 2011-Ohio-2323.]


STATE OF OHIO                      )                     IN THE COURT OF APPEALS
                                   )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                   )

STATE OF OHIO                                            C.A. No.   10CA0027-M

        Appellee

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
JAMES O MILLS, SR.                                       WADSWORTH MUNICIPAL COURT
                                                         COUNTY OF MEDINA, OHIO
        Appellant                                        CASE No.   09CRB00727-A

                                  DECISION AND JOURNAL ENTRY

Dated: May 16, 2011



        BELFANCE, Presiding Judge.

        {¶1}     James O. Mills, Sr. (“Mr. Mills”) appeals the judgment of the Wadsworth

Municipal Court. For the reasons stated below, we affirm.

                                                   I.

        {¶2}     Mr. Mills was charged with companion animal cruelty in violation of R.C.

959.131(B). After a bench trial, the court found Mr. Mills guilty and later sentenced him to a jail

term of one hundred eighty days, all but ten of which were suspended, five years of probation

including an anger management class, and a five hundred dollar fine. Mr. Mills appeals from

that judgment, presenting two assignments of error.

                                                   II.

                                          ASSIGNMENT OF ERROR I

        “APPELLANT’S CONVICTION FOR CRUELTY AGAINST ANIMALS IN
        VIOLATION OF OHIO REV. CODE §959.131 WAS AGAINST THE
        MANIFEST WEIGHT OF THE EVIDENCE[.]”
                                                   2


       {¶3}      Mr. Mills argues, in his first assignment of error, that his conviction is against the

manifest weight of the evidence. We disagree.

       {¶4}      “When a court of appeals reverses a judgment of a trial court on the basis that the

verdict is against the weight of the evidence, the appellate court sits as a thirteenth juror and

disagrees with the factfinder's resolution of the conflicting testimony.” (Internal quotations and

citation omitted.) State v. Thompkins (1997), 78 Ohio St.3d 380, 387. When determining

whether a conviction is supported by the manifest weight of the evidence,

       “an appellate court must review 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 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. Cepec, 9th Dist. No. 04CA0075-M,
       2005-Ohio-2395, at ¶6, quoting State v. Otten (1986), 33 Ohio App.3d 339, 340.

       {¶5}      We must only invoke the discretionary power to grant a new trial in

“extraordinary circumstances when the evidence presented weighs heavily in favor of the

defendant.” State v. Flynn, 9th Dist. No 06CA0096-M, 2007-Ohio-6210, at ¶9, citing Otten, 33

Ohio App.3d at 340. When reviewing a conviction pursuant to the manifest weight standard, we

must determine whether the State met its burden of persuasion. Cepec at ¶6.

       {¶6}      Tammy Sturdivant owned a Labrador/Rottweiler mix named Penny, who lived

with Ms. Sturdivant’s boyfriend, James Mills, Jr., in 2009. James Mills, Sr. frequently visited

his son’s home, where he encountered the dog. There was ample evidence from the testimony of

Ms. Sturdivant, Jerry Hoke (a co-worker of Mr. Mills’ son), and Mr. Mills that Mr. Mills never

liked the dog.

       {¶7}      Ms. Sturdivant testified that on the evening of August 14, 2009, she filled the five

gallon bucket in the dog’s kennel with water. She made arrangements for Mr. Hoke to care for

the dog because she was going to be away over the weekend.
                                                  3


        {¶8}     Mr. Mills testified that he was at his son’s residence the next day, splitting wood

for three or four hours nearby the dog’s kennel and that the dog was barking the entire time. He

went over to the kennel to see “what might be wrong with her” and noticed the water in the

bucket was low. The dog jumped against the fence when he came over. He testified that she

“was just going completely wild. And so I got that [metal] fence post and I poked her in the

hindquarters[,]” through the fence. His testimony on cross-examination was that he poked her in

the front shoulder, hard enough to hurt, and she yipped. He testified that he hit the dog three

times on her body, then hit her on the side of her head, then hit her two more times on her body.

She then lay down at the other end of the pen. Mr. Mills then nudged her with the fence post,

she bit it, and he pulled it out of her mouth. Then he “nudged her again, and she grabbed a hold

of it and wouldn’t let it go. So at least she wouldn’t get up.” He testified he then went in the

kennel and filled the water bucket. He then called his son, told him he thought the dog would be

all right, and left.

        {¶9}     Ms. Sturdivant testified that she and Mr. Mills’ son were fishing on Lake Erie

when Mr. Mills called to say he had hit the dog with a metal fence post and he thought the dog

would be fine. She and Mr. Mills’ son called Mr. Hoke, asked him to check on the dog, then

began to pack up their fishing gear to return to the house. Mr. Hoke testified that he got there

before they did and found the dog dead in the kennel. The dog’s body was not professionally

examined post-mortem. Ms. Sturdivant testified that she observed a dent in the dog’s head when

she moved the dog’s body.

        {¶10} Deputy England of the Wadsworth Police Department testified that he responded

to a call at James Mills, Jr.’s residence that afternoon. He testified that a metal fence post,

approximately four or five feet long and weighing a couple pounds, was stuck loosely in the
                                                4


ground in the dog’s kennel and that there were hairs on it consistent with the dog’s fur. Deputy

England testified the water bucket was nearly completely full.

       {¶11} Deputy England also testified that he spoke with Mr. Mills that evening and that

Mr. Mills told him that “he wanted to shut the dog up, so he hit it a few times with a metal fence

post.” Deputy England took a statement from Mr. Mills, which indicates that Mr. Mills hit the

dog three or four times, back and front. It also indicates that the water bucket was half full and

the dog was not aggressive toward Mr. Mills. Ms. Sturdivant testified that Mr. Mills said to her

“‘Sorry about the dog. She wouldn’t shut her up, so I shut her up. You didn’t need a dog like

that anyway.’”

       {¶12} Mr. Mills was charged and convicted under R.C. 959.131(B), which provides that

“[n]o person shall knowingly torture, torment, needlessly mutilate or maim, cruelly beat, poison,

needlessly kill, or commit an act of cruelty against a companion animal.” The definition of

companion animal includes “any dog or cat regardless of where it is kept.” R.C. 959.131(A)(1).

Cruelty, torture, and torment “include every act, omission, or neglect by which unnecessary or

unjustifiable pain or suffering is caused, permitted, or allowed to continue, when there is a

reasonable remedy or relief[.]” R.C. 1717.01(B); see R.C. 959.131(A)(2).

       {¶13} Mr. Mills has argued in part that his conviction is against the manifest weight of

the evidence because it is unclear what caused the dog’s death. Although a person can be guilty

of an offense under R.C. 959.131(B) by needlessly killing an animal, a person can also be found

guilty for other acts that do not result in the death of the animal such as “cruelly beat[ing]” the

animal. Thus, the court did not err in concluding that it was not necessary to determine what

caused the dog’s death.
                                                 5


       {¶14} Mr. Mills also contends that his conviction is against the manifest weight of the

evidence because he “poked,” rather than “hit” the dog, that he did not cause her pain, or that

such pain was necessary so that he could fill her water bucket without being bitten. According to

his own testimony, Mr. Mills “hit” the dog with a four foot metal fence post, five times on her

body and one time on her head. The dog “yipped” when he hit her. He continued to “nudge[]”

her with the post after she lay down. He also argued that this pain was necessary to keep the dog

from attacking him when he went in the kennel.

       {¶15} The trial court was able to observe Mr. Mills’ demeanor during his testimony and

to use these observations to weigh his credibility and resolve any conflicts in the testimony. A

verdict is not against the manifest weight of the evidence because the fact finder chose to believe

the State’s witnesses rather than the defense witnesses or chose to believe some but not all of the

testimony of a particular witness. State v. Andrews, 9th Dist. No. 25114, 2010-Ohio-6126, ¶28.

In weighing all of the evidence and assessing Mr. Mills’ credibility, the trial court did not have to

entirely believe Mr. Mills’ version of the events and there was evidence adduced at trial which

called into question Mr. Mills’ credibility at trial. For example, Mr. Mills claimed that he that he

needed to enter the kennel to give the dog water because her water bucket was low. However,

there was no evidence indicating that the bucket was empty or to suggest that the dog showed

symptoms of dehydration. Furthermore, Mr. Hoke, not Mr. Mills was responsible for caring for

the dog. Because the bucket was not empty, the dog showed no symptoms of dehydration, and

another person was caring for the dog that weekend, the court could have concluded that it was

not necessary for Mr. Mills to enter the kennel and thus questioned has claim that he needed to

hit the dog with a metal fence post so that he might safely enter the kennel.
                                               6


       {¶16} This Court’s “discretionary power to grant a new trial should be exercised only in

the exceptional case in which the evidence weighs heavily against the conviction.” State v.

Martin (1983), 20 Ohio App.3d 172, 175; see, also, Otten, 33 Ohio App.3d at 340. Upon a

thorough review of all of the evidence, we cannot conclude that it was unreasonable for the court

to find that Mr. Mills violated R.C. 959.131(B). Consequently, we cannot conclude that this is

the exceptional case where the finder of fact clearly lost its way and created a manifest

miscarriage of justice.

       {¶17} Mr. Mills’ first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       “OHIO’S PROHIBITIONS CONCERNING COMPANION ANIMALS
       STATUTE, OHIO REV. CODE §959.131, IS UNCONSTITUTIONALLY
       VOID-FOR-VAGUENESS.    IT FAILS TO DEFINE THE CRIMINAL
       OFFENSE WITH SUFFICIENT DEFINITENESS THAT ORDINARY PEOPLE
       CAN UNDERSTAND WHAT CONDUCT IS PROHIBITED AND IN A
       MANNER THAT DOES NOT ENCOURAGE ARBITRARY AND
       DISCRIMINATORY ENFORCEMENT.”

       {¶18} Mr. Mills argues, in his second assignment of error, that R.C. 959.131(B) is

unconstitutionally vague and therefore void. Mr. Mills does not indicate, and we are unable to

locate, any portion of the record showing that he raised this issue before the trial court. See

App.R. 16(A). Consequently, Mr. Mills has forfeited his right to raise this argument on appeal

and we decline to address it. In re M.D. (1988), 38 Ohio St.3d 149, 151; State v. Awan (1986),

22 Ohio St.3d 120, 120.

       {¶19} Mr. Mills’ second assignment of error is overruled.

                                                                             Judgment affirmed.
                                                 7




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Wadsworth

Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.


                                                     EVE V. BELFANCE
                                                     FOR THE COURT


MOORE, J.
DICKINSON, J.
CONCUR


APPEARANCES:

DAVID C. SHELDON, Attorney at Law, for Appellant.

J. JEFFREY HOLLAND, Attorney at Law, for Appellee.
