[Cite as State v. Davis, 2014-Ohio-624.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                       :

        Plaintiff-Appellee                          :        C.A. CASE NOS. 25558 and
                                                                            25559

v.                                                  :        T.C. NO.   CRB1201845
                                                                        CRB1201930
DARYL D. DAVIS                                      :
                                                              (Criminal appeal from
        Defendant-Appellant                         :          Municipal Court)

                                                    :

                                           ..........

                                           OPINION

                          Rendered on the 21st day of February, 2014.

                                           ..........

JOE CLOUD, Atty. Reg. No. 0040301, 3973 Dayton Xenia Road, Beavercreek, Ohio 45432
      Attorney for Plaintiff-Appellee

SCOTT BISSELL, Atty. Reg. No. 0085229, 3080 Ackerman Blvd., Suite 320, Kettering,
Ohio 45429
      Attorney for Defendant-Appellant

                                           ..........

WELBAUM, J.

        {¶ 1}     This case was brought by Plaintiff-Appellee State of Ohio (“the State”)

against Defendant-Appellant Daryl D. Davis, (“Davis”) in the Vandalia Municipal Court in
                                                                                          2

two separate case numbers, 12 CRB 1930-A and B and 12 CRB 1845, in which three

separate complaints were filed against Davis. Each complaint identifies three kittens as the

subjects of animal cruelty. Davis entered a plea of “not guilty” to three complaints of

Cruelty to Companion Animals in violation of R.C. 959.131(B). The case proceeded to

bench trial on November 19, 2012, and Davis was found guilty on all three complaints. On

November 29, 2012, Davis was sentenced to one hundred and eighty days in jail, with one

hundred and fifty days suspended on each complaint. The Court allowed Davis to schedule

either thirty consecutive days in jail or serve ten consecutive weekends. Additionally, the

Court imposed a fine of $1,000.00 with $900.00 suspended on two of the three complaints.

Davis was placed on five years probation in case numbers 12 CRB 1930-A and 12 CRB

1845. Davis filed a timely notice of appeal with this Court on December 28, 2012.

                                             I

       {¶ 2}   In the afternoon of July 27, 2012, Teresa Neal was driving with a friend,

Marilyn Shooler, to the Kroger store at North Dixie and Needmore Road in Dayton, Ohio.

While traveling “about a car length and a half” behind Davis’ Ford Focus, Shooler and Neal

saw the first of a succession of kittens thrown from Davis’ passenger window while he was

traveling southbound on North Dixie. Neal testified she saw the first black cat thrown from

the passenger side window of his vehicle, then the cat ran across the three lanes of North

Dixie traffic. While they continued to follow Davis, Neal testified she and her passenger

were both “freaking out.” Further down the road, Neal saw Davis’ arm move across the car

to the right to throw a second cat out of his passenger side window. The second cat flew out

of the window about three feet in the air and hit Neal’s own car, striking her bumper, and
                                                                                              3

then going under the car. Neal stated she could not remember any additional cats being

thrown from Davis’ vehicle.

       {¶ 3}     Davis sped up, but Neal continued to follow him until he stopped at an

intersection near the Esther Dennis Middle School. Neal exited her vehicle and approached

Davis on the driver side of his vehicle. As Davis rolled his window down, Neal told him he

was being cruel to animals, but he stated that he did not know what she was talking about

and called her a “crazy bitch.” Neal testified that she was able to identify Davis and his

vehicle and did not see any pet carriers, boxes, or remaining animals in the car.

       {¶ 4}     Neal’s passenger, Shooler, provided similar testimony, yet observed a third

cat thrown from Davis’ vehicle before they stopped and confronted him. Shooler also

described to the court the manner in which the cats were thrown out of Davis’ vehicle and

provided descriptions of where the cats landed. Shooler testified that the first cat landed by

Arthur Street, and the second cat was thrown out of the vehicle near Milano’s and flew in the

same direction as the first cat before their vehicle struck it. Shooler indicated that after the

third cat was thrown from Davis’ vehicle, she saw it on the roadway and observed it run into

a parking lot.   Shooler said when the third cat went flying out of the window, she caught a

view of its legs spread apart and testified, “we were close enough to [Davis] that I could see

his arm extended.”

       {¶ 5}     Shooler indicated that after the first cat was thrown from the vehicle, she

called 911 and was able to report Davis’ license plate number. Shooler testified that she

also exited the car when Neal confronted Davis at an intersection near Esther Dennis Middle
                                                                                           4

School. At this point, Shooler could see into the vehicle and also saw no boxes or pet

carriers. (Tr. 38)

       {¶ 6}    Davis testified on his own behalf at trial. Davis asserted that Ms. Neal

approached his car and asked “what he had against black cats,” and he told her he did not

know what she was talking about. At trial, Davis denied using any profane language

towards Neal at the time she confronted him in his vehicle, contrary to her testimony. After

the verbal confrontation, Davis left, then a few hours later he was contacted by the police.

Davis reported to the police station, and was asked if he knew why he was there. Davis

answered “yes.” Davis was then placed in police custody. Davis subsequently consented to

a search of his car, whereupon no cat hair, boxes, or pet carriers were found. Davis told

police it was a “misunderstanding and the cats were apparently up under my car and they fell

out.” Deputy Craig Eaton testified for the State and said that Davis’ apartment was only a

half of a mile from the location where the second cat was thrown from the vehicle.

Photographs of the two dead cats in the roadway were identified by Eaton.

       {¶ 7}    Christine Meckstroth, Davis’ neighbor and acquaintance, stated that she and

her husband feed the stray cats that are the subject of these charges. Meckstroth testified

that there were originally two adult cats and three kittens around her house, born the end of

May or early June. Meckstroth testified that presently there is only one kitten around her

house. She and Mr. Meckstroth explained to the court how difficult it was for her and her

family to catch the cats, as they would quickly run off when approached by humans.

Mecksroth also explained how the cats would on occasion crawl up into the wheels of her
                                                                                             5

husband’s truck, yet she and Mr. Meckstroth testified that to her knowledge, neither of them

have driven away with any cats under the vehicle.

                                              II

       {¶ 8}    Davis’ first and only assignment of error is as follows:

   “THE GUILTY VERDICTS RENDERED BY THE COURT WERE AGAINST THE

                       MANIFEST WEIGHT OF THE EVIDENCE”

       {¶ 9}    In his sole assignment of error, Davis contends that the trial court’s decision

finding him guilty of three counts of Cruelty to Companion Animals in violation of R.C.

959.131(B) is against the manifest weight of the evidence. Although Davis’ assignment is

couched in terms of manifest weight, he spends a substantial portion of his argument

attacking the sufficiency of the evidence used to convict him.

       {¶ 10} “A challenge to the sufficiency of the evidence differs from a challenge to

the manifest weight of the evidence.” State v. McKnight, 107 Ohio St.3d 101,

2005-Ohio-6046, 837 N.E.2d 315, ¶ 69. “In reviewing a claim of insufficient evidence,

‘[t]he relevant inquiry is whether, after reviewing 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.’ ” Id. at ¶ 70. A claim that a jury verdict is

against the manifest weight of the evidence involves a different test. The court, 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
                                                                                                 6

reversed and a new trial ordered. 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. State v. Black, 181 Ohio App. 3d 821, 2009-Ohio-1629, 911 N.E.2d 309, ¶ 69

(2d Dist.)

        {¶ 11} Weight of the evidence concerns the inclination of the greater amount of

credible evidence offered at trial, to support one side of the issue, rather than the other.

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), citing Black’s Law

Dictionary 1594 (6 Ed. 1990).        The credibility of the witnesses and the weight to be given

to their testimony are matters for the trier of facts to resolve. State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212 (1967). “Because the factfinder, be it the jury, or, as in this case,

the trial judge, has the opportunity to see and hear the witnesses, the cautious exercise of

discretionary power of a court of appeals to find that a judgment is against the manifest

weight of the evidence requires that a substantial deference be extended to the factfinder’s

determinations of credibility. The decision whether, and to what extent, to credit the

testimony of particular witnesses is within the peculiar competence of the factfinder, who

has seen and heard the witnesses.” State v. Lawson, 2d Dist. Montgomery No. 16288, 1997

WL477684, *5 (Aug. 22, 1997) This court will not substitute its judgment for that of the

trier of facts on the issue of witness credibility unless it is patently apparent that the trier of

fact lost its way in arriving at its verdict.

        {¶ 12} The State was required to prove Davis guilty of violating R. C. 959.131(B),

which states, “no person shall knowingly torture, torment, needlessly mutilate or maim,
                                                                                             7

cruelly beat, poison, needlessly kill, or commit an act of cruelty against a companion

animal.” For purposes of Section 959.131, “companion animal” means any animal that is

kept inside a residential dwelling and any dog or cat regardless of where it is kept excluding

livestock or wild animals. R.C. 959.131(A)(1).

       {¶ 13} Also pursuant to this section, “cruelty,” “torment,” and “torture” 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.

       {¶ 14} The trial court correctly noted that while “needlessly kill” is expressly stated

in R.C. 959.131(B), Davis need not have killed the third cat. Rather, it is sufficient under

the statute for the State to establish that Davis did “torture, torment, needlessly mutilate or

maim, cruelly beat . . . or commit an act of cruelty against a companion animal,” even if it

did not result in death. Thus, the factfinder was correct in finding that the elements of

R.C.959.131(B) were proven as to each cat by the manifest weight of the evidence.

       Davis argues that the factfinder lost its way in reaching its verdict. Davis contends

that since the testimony of the two eyewitnesses differed as to the number of cats that were

thrown from the vehicle, it is unreliable and against the manifest weight. Davis contends

that after weighing the evidence and considering the credibility of the witnesses, the trial

court created such a miscarriage of justice that his convictions must be reversed. Upon

review of the record, we find Davis’ argument that his convictions are against the manifest

weight to be unpersuasive.
[Cite as State v. Davis, 2014-Ohio-624.]
        {¶ 15} The variation in a detail of the eyewitness testimony does not necessitate

discrediting their credibility, as Davis asserts. The discrepancy between the testimony of the

two witnesses regarding the number of cats thrown from the vehicle does not require a

reversal of Davis’ convictions. The factfinder was free to credit the testimony of Ms.

Shooler, who said she saw three cats thrown from the moving vehicle, two of which died,

and the third escaped. Ms. Neal was the driver, and could easily have been mistaken as to

the number of cats due to her focus on the road at the time of the incident, whereas Shooler,

who was on the phone with dispatch, was able to watch Davis’ car as well as his conduct.

Shooler’s testimony, which contained a location for where each of the cats landed is simply

more detailed. The record supports a finding of cruelty against three cats which were

thrown from a moving vehicle, two of which were struck and killed.

        {¶ 16} Further, the trial judge wholly rejected Davis’ testimony, specifically

indicating that it was “not credible.” It is the job of the factfinder to weigh the evidence and

to determine who is more credible. The trial judge was free to discredit Davis’ testimony that

the cats were merely underneath his car and fell out. In this case, the mere fact that two

eyewitnesses related slightly different versions of the same incident falls short of

establishing that the trial court lost its way and created a manifest miscarriage of justice.

        {¶ 17} This Court will not substitute its judgment for that of the trier of fact on the

issue of witness credibility unless it is patently obvious that the fact finder lost its way.

After reviewing the record as a whole, we cannot say that the factfinder lost its way,

resulting in a manifest miscarriage of justice.

                                                  III

        {¶ 18} Although the record establishes cruelty toward three cats, the record is not
                                                                                               9

free from error. As previously stated, this case proceeded in two separate case numbers, 12

CRB 1930-A and B, for which there are two complaints, each identifying three cats as the

subject of cruelty. A third case number, 12 CRB 1845, in which there is one complaint, also

alleges cruelty against three cats pursuant to R.C.959.131(B). The manner in which the State

of Ohio elected to draw up the complaints gives rise to error since each individual complaint

identifies three cats as the subject of cruelty. However, the evidence adduced at trial

established that Davis did not kill or commit acts of cruelty against nine cats, only three.

       {¶ 19} The question then arises whether these errors in the complaints rise to plain

error that affects Davis’ substantial rights under Crim.R. 52(B) even though the error was

not brought to the court’s attention. The evidence presented at trial was that on July 27,

2012, the Appellant threw three kittens, in three separate tosses, out of the open passenger

window of the car he was driving on North Dixie Drive in the vicinity of Needmore Road. In

case number CRB 1201845, he was charged with one count of cruelty against a companion

animal. The charge was initiated by a complaint filed July 30, 2012. The handwritten body to

the complaint states: “No person shall knowingly torture, torment, needlessly mutilate or

maim, cruelly beat, poison, needlessly kill, or commit an act of cruelty against a companion

animal. X3 To wit: Throwing three kittens from a moving vehicle w/ 1 dying.” In case

numbers CRB 1201930 A & B, the Appellant was charged with two additional counts of the

same offense by separately completed complaints. The first sentence of the body of the

complaint for count A is identical to that in case number 1201845. Thereafter, the “X3" is

omitted and it concludes: “To wit: Throwing three kittens from a moving vehicle.” The
                                                                                                                                  10

complaint for count B is the same as count A except the word “Throw” is used instead of

“Throwing.”1

         {¶ 20} The case was tried to the court on November 19, 2012. The defendant was

represented by counsel. At the beginning, the acting judge stated: “[L]ooks like we have a

total of three counts, is that right?” (Trial Transcript, 3). The prosecutor stated “Yes.” The

court reiterated: “Okay, all three first degree misdemeanors and all occurring on July 27,

2012, is that right?” The prosecutor responded “correct.” The court then inquired of the

defendant’s counsel whether there were any “preliminary matters.” Defendant’s counsel

discussed plea offers that had been made and confirmed the defendant’s rejection of them.

The trial began. No objection was made to the wording of the complaints and there was no

misunderstanding that the State was pursuing three charges for throwing three cats out the

window, with two dying.

         {¶ 21} The case law regarding cruelty against companion animals solidly supports

the concept that offenses involving multiple animals can each be prosecuted as a separate

offense. In State v. Helmbright, 2013-Ohio-1143, 990 N.E.2d 154, 2013-Ohio-1143 (10th

Dist.), the defendant was charged with eleven counts of cruelty against companion animals

relating to neglect in the care of eleven cats. The court of appeals surveyed Ohio case law on

the subject, both before and after the Ohio Supreme Court’s “same conduct” test announced
             1
               The date complaints A and B were generated is not clear. The date on them appears to be June 26, 2012, which is
   obviously a clerical error because it is before the date of the offense. These complaints do not have a file stamp. Each contains a
   summons, with a raised seal, ordering the defendant to appear in court on August 13, 2012. The docket notes on the file jacket
   indicate the summons were mailed out on August 7, 2012 which would be after the defendant’s first appearance for case number
   1201845 on July 31, 2012. None of these discrepancies were assigned as error and, in our view, none are plain error.
                                                                                             11

in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The court of

appeals concluded that the eleven counts did not merge because “[e]ven if defendant

committed the offenses at issue through the same conduct, a separate animus existed for

each animal defendant harmed by his conduct.” Id. at ¶ 34. The same analysis allows three

counts for the three kittens here.

       {¶ 22} Because the trial proceeded on three counts for three kittens without

objection, we can only review a mistake in the charging instruments if it amounts to plain

error. Plain error is recognized where, but for the error, the result of the trial clearly would

have been otherwise. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two

of the syllabus. An appellate court should exercise the “utmost caution” when taking notice

of plain error under Crim.R. 52(B), invoking the rule only “under exceptional circumstances

and only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372

N.E.2d 804 (1978), paragraph three of the syllabus.

               The purpose of a criminal complaint is “to inform the accused of the

       identity and essential facts constituting the offense charged.” State v.

       Echemendia, 6th Dist. Ottawa No. OT–95–059, 1996 WL 475994, *1 (Aug.

       23, 1996). A complaint is deemed sufficient if it charges an offense in the

       words of the statute upon which it is based. State v. Hadley, 6th Dist. Fulton

       No. F–09–007, 2009–Ohio–4595, ¶ 11.

State v. Hunter , 2d Dist. Montgomery No. 24844, 2013-Ohio-1469, ¶ 21.

       Here the complaints fulfilled their central purpose, and it was apparent that the State
                                                                                               12

was proceeding on three counts. Even if the terse references about “Throwing 3 kittens” in

each complaint was incorrect, a point we do not accept, an objection either would have been

overruled, or the State would have been allowed to amend the complaints pursuant to Crim.

R. 7(D), and the result would have been the same. We find no plain error since the record

shows that the three charges are not duplications of one another.

        {¶ 23} The dissenting opinion concluded that the count in CRB 1201930-B lacks a

final appealable order. Although it may not be the easiest to follow, the front of the case

file jacket contains a small printed sticker referring to the “A” charge with “1 of 2" written

on it. The jacket has a title “Docket/Journal Entry.” In the “Decision/Finding” area, the

“G”, for guilty, box is checked, as is the box indicating that it was the result of a “Trial.” The

$1000 fine with $900 suspended is recorded, as is the sentence of 180 days in jail, with 150

suspended, and the option of 30 days in jail or 10 weekends. Probation for “5” years is

recorded.

        {¶ 24} Crim.R. 32(C) provides: “ * * * The judge shall sign the judgment and the

clerk shall enter it on the journal. A judgment is effective only when entered on the journal

by the clerk.”

        {¶ 25} The form on the outside of the file jacket is signed by the acting judge and

file stamped for November 29, 2012, the date of sentencing. A journal entry may be located

on a file jacket if it comports with the Criminal Rules, is signed by the judge, and filed with

the clerk.   State ex rel. White v. Junkin, 80 Ohio St.3d 335, 686 N.E.2d 267 (1997) (appeal

dismissed where no evidence that file jacket was signed by the judge and therefore not
                                                                                            13

journalized); City of Euclid v. Muller, 134 Ohio App.3d 737, 745, 732 N.E.2d 410 (8 th Dist.

1999) (evidence that a file jacket entry was signed by the judge and file stamped was

sufficient evidence that the sentence was properly journalized).

       {¶ 26} On the reverse side of the same jacket cover is the printed form titled

“journal entry,” and it has five sets of boxes or blanks to record findings if there are that

many multiple charges. A printed sticker for the “B” charge appears in the first set of

boxes. For the “B” charge, an “X” indicates that the defendant was found “G,” undoubtedly

meaning guilty, and a jail term of “180 ” with “150 ” suspended with probation for “5yrs” is

filled out in the same penmanship referred to on the front of the form. Although the back of

the front of the jacket is not separately signed, it is separately file stamped. All of these

recordings are consistent with the court’s sentence reflected in the transcript of proceedings

(6-9) from the November 29, 2012 sentencing. We conclude this documentation creates final

appealable orders for both the “A” and “B” charges.

       {¶ 27} A separate journal entry filed on January 2, 2013, three days after the notice

of appeal was filed, and one day prior to the transcript of docket entries was sent to this

court, adds to the confusion. It bears case number, 12 CRB 1930, but without reference to

either counts A or B. It reflects one sentence rather than the two that were imposed

concurrently. Although we are left to decipher how the separate journal entry relates to the

journal entries located on both sides of the file jacket, we find that the extra, non specific,

journal entry has no effect on the legitimacy of the other two. Therefore, the convictions for

the A and B counts have been journalized.
                                                                                             14

       {¶ 28}    We find that the convictions are supported by sufficient evidence and not

against the manifest weight of the evidence, there is no plain error in the wording of the

complaints under Crim.R. 52(B), and that the convictions were sufficiently journalized as

final appealable orders and are properly before us.

       {¶ 29}    Judgment affirmed.

                                         ..........

HALL, J., concurs.

DONOVAN, J., concurring in part, dissenting in part:

       {¶ 30}    I disagree. I would affirm only one conviction for Cruelty to Companion

Animals because each complaint identified three kittens as the subject thereof. The fact that

the State could have charged this in a different manner, i.e., three counts with each count

identifying one kitten as the subject thereof or in the alternative, three separate complaints

each identifying one kitten as the subject thereof is irrelevant. The effect of the State’s

election to charge Davis in the manner it did resulted in a finding of acts of cruelty against

nine kittens. This finding is not supported by the record and constitutes plain error. This

constitutes a violation of Davis’ right to be free from Double Jeopardy.

       {¶ 31}    Accordingly, I would affirm one conviction in CRB1201845 against three

companion animals. I would vacate the second duplicative conviction in CRB 1201930-A.

Finally, because CRB1201930-B does not constitute a final appealable order (it lacks a

proper judgment entry and signature of the judge), I would dismiss the appeal thereof for

lack of subject matter jurisdiction and instruct the trial court to vacate the finding of guilty
                                                                                          15

and dismiss the complaint as it is duplicative of the conviction in CRB1201845.

                                        ..........



Copies mailed to:

Joe Cloud
Scott Bissell
Hon. Cynthia M. Heck


Case Name:    State of Ohio v. Daryl D. Davis
Case No:              Montgomery App. Nos. 25558/25559
Panel:                Donovan, Hall, Welbaum
Author:               Jeffrey M. Welbaum
Summary:              Appellant’s convictions for cruelty to companion animals in violation
                      of R.C. 959.131(B) were supported by sufficient evidence adduced
                      during trial, and were not against the manifest weight of the evidence.
                       This case proceeded in two separate case numbers, 12 CRB 1930-A
                      and B, for which there are two complaints, each involving three cats.
                      A third case number, 12 CRB 1845, in which there is one complaint,
                      also alleged cruelty toward three cats pursuant to R.C.959.131(B).
                      Since the record shows the parties understood the Defendant was
                      globally charged and convicted of abusing only three cats, and there
                      was no objection to the wording of the complaints, there was no
                      violation of Appellant’s substantial rights and consequently no plain
                      error under Crim.R. 52(B). The convictions were sufficiently
                      journalized as final appealable orders and properly before this court.
                      Judgment affirmed. (Donovan, J., concurring in part, dissenting in
                      part).
