[Cite as State v. Wolfe, 2017-Ohio-1326.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. Patricia A. Delaney, P.J.
                                               :       Hon. W. Scott Gwin, J.
                         Plaintiff-Appellee    :       Hon. William B. Hoffman, J.
                                               :
-vs-                                           :
                                               :       Case No. 16-CA-43
DONALD C. WOLFE                                :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Licking County
                                                   Municipal Court, Case No. 15-CRB-1916


JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            April 7, 2017


APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

MARK GARDNER                                       MICHAEL DALSANTO
Village Solicitor                                  33 West Main Street, Ste. 106
Village of Buckeye Lake                            Newark, OH 43055
23 South Park Place, Suite 208
Newark, OH 43055
Licking County, Case No. 16-CA-43                                                       2

Gwin, J.

        {¶1}      Defendant-appellant Donald C. Wolfe [“Wolfe”] appeals his conviction and

sentence after a jury trial in the Licking County Municipal Court on one count of

Abandoning Animals.

                                    Facts and Procedural History

        {¶2}      October 22, 2015, Wolfe was charged with one count of Abandoning

Animals in violation of R.C. 959.01 and one count of Prohibitions Concerning Companion

animals in violation of R.C. 959.131.

        {¶3}      This matter was scheduled for a Bench Trial on December 29, 2015. Prior

to trial, Wolfe filed a jury demand and motion to continue the trial date. The case was

rescheduled for a pretrial conference on February 9, 2016 and a jury trial on February 11,

2016. Wolfe failed to appear for the scheduled pretrial and a bench warrant was issued

for his arrest.

        {¶4}      Wolfe was arrested on February 22, 2016 and this case was rescheduled

for a Pretrial and Jury Trial on April 5, 2016 and April 7, 2016.

        {¶5}      Wolfe filed a Motion to Continue on May 2, 2106 and this case was

consolidated with the case involving his wife and rescheduled for a Jury Trial on May 26,

2016.

        {¶6}      On May 26, 2016, the Jury Trial was held and the following evidence was

presented.

        {¶7}      Randy Bussey is a member of the Buckeye Lake Street Department.

Bussey testified that he found a puppy behind the Dollar General in Buckeye Lake in a
Licking County, Case No. 16-CA-43                                                        3


Dollar General shopping bag. The bag was tied closed. Bussey immediately called

Sergeant Andy Davis.

          {¶8}   Sergeant Davis responded to Bussey's phone call and met with him at the

Buckeye Lake Police Department. Sergeant Davis observed the puppy and noted that it

was "soaking wet" and "looked to be pretty sick." Sergeant Davis and Bussey took the

puppy to the local Petplex Animal Hospital.

          {¶9}   Several days later, Sergeant Davis interviewed Wolfe and his co-defendant,

Ms. Levan. During that interview, Ms. Levan stated that she had "gotten two dogs from

Michael Moyer," that the dogs were pit bull puppies, and that the first puppy had passed

away. Sergeant Davis testified that Ms. Levan stated that they had "met some random

guy that was walking down the street" who "agreed to take [the] puppy....” (T. at 64). Ms.

Levan admitted that if the puppy was found in a bag, that the bag would have her

fingerprints on it because "she had handed [the] unknown man [the] dog in the bag...” (T.

at 65).

          {¶10} Doctor Joanna Reen, the veterinarian who treated the dog described the

puppy's physical situation as "pretty critical" at intake: that she was hypothermic,

dehydrated, and "very ill.” (T. at 80-81).

          {¶11} Bonnie Mansfield testified that Ms. Levan had contacted her on September

14, 2015, stating that she had an ill dog and requested assistance with that dog. This

was the day before the puppy was found at the Dollar General.

          {¶12} Humane Society Agent Paula Evans testified that Sergeant Davis had

informed her of an investigation into animal cruelty relating to this case. Ms. Evans

transferred the puppy from Petplex to Refugee Canyon for veterinary care.            Soon
Licking County, Case No. 16-CA-43                                                          4


thereafter, she began an investigation into the incident by sending out a "plea on

Facebook" seeking information. As a result of these "leads," Ms. Evans traveled to Ms.

Levan and Wolfe's home to ask them questions about the incident.

       {¶13} During one of several interviews, she had both Wolfe and Ms. Levan sign a

"voluntary surrender to a Humane Agent" with respect to the animal.              On cross-

examination, Ms. Evans conceded that she had never shown a picture of the dog to Wolfe

or Ms. Levan, nor an image of the Dollar General bag.

       {¶14} After Ms. Evans' testimony, the Village offered its exhibits and rested its

case. Wolfe called no witnesses and presented no evidence.

       {¶15} The jury returned verdicts of guilty as to both co-defendants on the

abandonment charge in violation of R.C. 959.01 and verdicts of not guilty as to the cruelty

to companion animal charges in violation of R.C. 959.131.

       {¶16} The trial court proceeded to sentence Wolfe to sixty days of incarceration in

the county jail plus a fine of $250.00 and court costs. The trial court denied a request that

the sentence be stayed.

                                       Assignment of Error

       {¶17} Wolfe raises one assignment of error,

       {¶18} “I. THE JURY'S VERDICT THAT THE APPELLANT COMMITTED

ABANDONING ANIMALS IN VIOLATION OF SECTION 959.01 OF THE OHIO REVISED

CODE IS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

SEE ENTRY OF CONVICTION, DATED 05/26/2016; TR. AT 148.”
Licking County, Case No. 16-CA-43                                                             5

                                          Law and Analysis

       {¶19} Our review of the constitutional sufficiency of evidence to support a criminal

conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979), which requires a court of appeals to determine whether “after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Id.; see also

McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming

this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010–Ohio–1017, ¶

146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010–Ohio–2720, ¶ 68.

       {¶20} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded by

constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d

89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the inclination of

the greater amount of credible evidence, offered in a trial, to support one side of the issue

rather than the other. It indicates clearly to the jury that the party having the burden of

proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall

find the greater amount of credible evidence sustains the issue which is to be established

before them. Weight is not a question of mathematics, but depends on its effect in

inducing belief.”   (Emphasis sic.) Id. at 387, 678 N.E.2d 541, quoting Black's Law

Dictionary (6th Ed. 1990) at 1594.

       {¶21} 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 fact finder’s resolution of the conflicting
Licking County, Case No. 16-CA-43                                                             6

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982).          However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘the jury 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. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983). Accordingly,

reversal on manifest weight grounds is reserved for “‘the exceptional case in which the

evidence weighs heavily against the conviction.’” Id.

              “[I]n determining whether the judgment below is manifestly against

       the weight of the evidence, every reasonable intendment and every

       reasonable presumption must be made in favor of the judgment and the

       finding of facts. * * *

               “If the evidence is susceptible of more than one construction, the

       reviewing court is bound to give it that interpretation which is consistent with

       the verdict and judgment, most favorable to sustaining the verdict and

       judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

       {¶22} In the case at bar, Wolfe was convicted of Abandoning Animals. R.C.

959.01 provides, “No owner or keeper of a dog, cat, or other domestic animal, shall

abandon such animal.”

       {¶23} Ms. Evans conceded there were possibly other puppies in the litter from

Michael Moyer. Wolfe argues that the Village failed to show that the dog found at the
Licking County, Case No. 16-CA-43                                                        7


Dollar General store is the same dog that Ms. Levan was talking about when she

discussed the plastic bag and the fingerprints. Wolfe further contends the Village did not

show that Wolfe was the owner or keeper of the dog as opposed to Ms. Levan. The only

evidence presented as to his personal ownership interest in the dog as opposed to

Levan’s is that he signed a form relinquishing rights to the dog. Finally, Wolfe argues

the Village presented insufficient evidence as to the act of abandonment.

       {¶24} Abandonment will not be presumed but requires affirmative proof of a

person’s intent to totally discard the property. Kiser v. Board of Commrs, 85 Ohio St. 129,

97 N.E. 52 (1911); Accord, State v. Amos, 5th Dist. Ashland No. 14-COA-01, 2014-Ohio-

3097, 17 N.E.3d 9, ¶21.

       {¶25} Evidence was presented that the puppy was inside a plastic bag that had

been tied shut and left in an abandoned area behind the Dollar General store.

       {¶26} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that the puppy had been abandoned.

       {¶27} Humane Society Agent Paula Evans testified that she had spoken with

Wolfe alone at his home,

              I had a conversation with him. He explained to me that yes, there

       were two [puppies]; one had passed away. Him and his wife, and him [sic.]

       were on the porch. The other puppy was put in the bag, it was on the bag.

       And, at that point, an unidentified man came up and down the street with

       two dogs and the puppy was handed over to that person

T. at 106. In addition, State’s Exhibit 2 provided, in relevant part,
Licking County, Case No. 16-CA-43                                                    8


             In consideration for the Licking County Humane Agent accepting the

      animal described above, I hereby voluntarily warrant, legally represent,

      understand and agree as follows:

             1. I am the sole lawful owner or the sole duly authorized

      representative of the owner of the animal described above, and I have

      unrestricted authority to surrender the animal to the Licking County Humane

      Agent. I hereby relinquish to the Licking County Humane Agent any and all

      rights of ownership. These animals are the property of the undersigned,

      and I am responsible for any legal claims by anyone else for these

      surrendered animals.

                                          ***

             I HEREBY ACKNOWLEDGE THAT I HAVE READ (OR HAD READ

      TO ME) AND UNDERSTAND THE FORGOING STATEMENT AND

      CONDITIONS OF ANIMAL SURRENDER, I FURTHER ACKNOWLEDGE

      THAT NO THREATS OR PROMISES HAVE BEEN MADE TO ME

      REGARDING FUTURE LEGAL PROCEEDINGS.

      {¶28} Wolfe signed the document as the “Owner or Representative.”

      {¶29} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Wolfe committed the crime of abandoning animals. We hold, therefore, that the state met

its burden of production regarding each element of the crimes of abandoning animals

and, accordingly, there was sufficient evidence to support Wolfe’s conviction.
Licking County, Case No. 16-CA-43                                                          9


       {¶30} As an appellate court, we are not fact finders; we neither weigh the evidence

nor judge the credibility of witnesses. Our role is to determine whether there is relevant,

competent and credible evidence, upon which the fact finder could base his or her

judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb. 10,

1982). Accordingly, judgments supported by some competent, credible evidence going

to all the essential elements of the case will not be reversed as being against the manifest

weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376

N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n determining whether

the judgment below is manifestly against the weight of the evidence, every reasonable

intendment and every reasonable presumption must be made in favor of the judgment

and the finding of facts. * * *.’” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E. 2d

517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80,

461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,

Section 603, at 191–192 (1978). Furthermore, it is well established that the trial court is

in the best position to determine the credibility of witnesses. See, e.g., In re Brown, 9th

Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio St .2d 230, 227

N.E.2d 212(1967).

       {¶31} Ultimately, “the reviewing court must determine whether the appellant or the

appellee provided the more believable evidence, but must not completely substitute its

judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,

¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964

(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of
Licking County, Case No. 16-CA-43                                                       10


the evidence or two conflicting versions of events, neither of which is unbelievable, it is

not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No.

99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722

N.E.2d 125(7th Dist. 1999).

      {¶32} 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, 227 N.E.2d 212(1967),

paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960

N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86

L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d

646 (1983).

      {¶33} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. "While the jury may

take note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996

WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness' testimony,

but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP-

604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548

(1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing State

v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992).           Although the

evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks, supra.
Licking County, Case No. 16-CA-43                                                        11


       {¶34} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,

quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury neither lost his way nor

created a miscarriage of justice in convicting Wolfe of the charge.

       {¶35} Based upon the foregoing and the entire record in this matter, we find

Wolfe’s conviction was not against the sufficiency or the manifest weight of the evidence.

To the contrary, the jury appears to have fairly and impartially decided the matters before

them. The jury as a trier of fact can reach different conclusions concerning the credibility

of the testimony of the state’s witnesses and Wolfe’s arguments. This court will not disturb

the jury's finding so long as competent evidence was present to support it. State v.

Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The jury heard the witnesses,

evaluated the evidence, and was convinced of Wolfe’s guilt.

       {¶36} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crime beyond a reasonable doubt.

       {¶37} Wolfe’s sole assignment of error is overruled.
Licking County, Case No. 16-CA-43                                             12


      {¶38} The judgment of the Licking County Municipal Court is affirmed.



By Gwin, J.,

Delaney, P.J., and

Hoffman, J., concur
