State v. George

2023 Ohio 2016

• Court: Ohio Court of Appeals
• Decided: June 20, 2023
• Docket: CA2022-10-093
• Status: Published

Opinion

[Cite as State v. George, 2023-Ohio-2016.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2022-10-093

: OPINION - vs - 6/20/2023 :

TYLER R. GEORGE, :

Appellant. :

CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT Case No. 22CRB01936-A

Laura Gibson, City of Hamilton Prosecuting Attorney, for appellee.

Christopher P. Frederick, for appellant.

HENDRICKSON, P.J.

{¶ 1} Appellant, Tyler R. George, appeals from his conviction in the Hamilton

Municipal Court for cruelty to a companion animal. For the reasons set forth below, we

affirm his conviction.

{¶ 2} On August 24, 2022, appellant was charged by complaint with one count of

cruelty to a companion animal in violation of R.C. 959.131(B), a misdemeanor of the first

degree. The charges arose out of allegations that on August 22, 2022, appellant struck his Butler CA2022-10-093

dog, a pit bull named "Lady Bear," multiple times with a bat at his home in Hamilton, Ohio.

{¶ 3} Appellant pled not guilty to the charge and a bench trial was held on

September 14, 2022. The state presented testimony from appellant's next-door neighbor

Christy Case and from Deputy Megan Niehaus, a Humane Agent and Dog Warden with the

Butler County Sheriff's Office. Case testified that as appellant's neighbor, she is aware that

appellant has two smaller dogs that are chihuahuas and one larger dog that is a pit bull.

Case has a Ring doorbell camera, or a security camera, on both her front and back doors.

The Ring cameras are activated by movement. At approximately 12:18 p.m. on August 22,

2022, Case's backdoor Ring camera was activated by motion and she received an alert on

her cell phone. She accessed the Ring camera's footage, which displayed her backyard

and a portion of appellant's backyard. The footage, which contained both a video and an

audio display, captured appellant "beating his dog, the biggest dog with a baseball bat."

{¶ 4} Case contacted the Butler County Dog Warden to report appellant's actions,

and she provided the dog warden with a copy of the Ring doorbell security footage. Later

that week, Case spoke with appellant about the incident. Case indicated appellant

apologized to her and stated he "regretted beating her, beating the dog." Appellant told

Case that he beat the dog after arriving home and finding out that one of the chihuahuas

had been injured by the pit bull. Case did not know whether the bat appellant used to beat

the pit bull was a "wiffle bat" or an "actual bat."

{¶ 5} Deputy Niehaus testified that after receiving Case's report of the incident, she

watched the Ring security footage. The footage, which was played at trial and admitted

into evidence, showed appellant following the pit bull around the backyard and striking the

dog three times with a bat, all while screaming profanities at it.

{¶ 6} On August 23, 2022, the day after the incident, Deputy Niehaus went to

appellant's home and spoke with him. Appellant advised Deputy Niehaus that he was

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"punishing [the pit bull] for biting his smaller dog" and that he had used a "child's bat."

Although appellant offered to show Deputy Niehaus the bat he used to strike Lady Bear,

Deputy Niehaus declined to look at it. At trial, Deputy Niehaus indicated she did not look at

the bat or procure it as evidence as she felt the Ring doorbell security footage provided

enough evidence of appellant's wrongdoing.

{¶ 7} Lady Bear was removed from appellant's custody on August 23, 2022 and

examined by a veterinarian the following day. Lady Bear did not exhibit any visible physical

injuries. However, Deputy Niehaus testified Lady Bear exhibited behavior that indicated

she was afraid of being struck. Lady Bear flinched and dropped to the ground when being

scanned for a microchip.

{¶ 8} Following Deputy Niehaus's testimony, the state rested its case. Appellant

moved for acquittal pursuant to Crim.R. 29, but his motion was denied. Thereafter,

appellant took the stand in his own defense. Appellant claimed that when he arrived at

home for a lunch break on August 22, 2022, his wife informed him that Lady Bear had

"attacked" one of the chihuahuas. The chihuahua had two visible injuries to its side and

had to be treated by a veterinarian. Appellant stated he "freaked," "lost [his] mind," and

"grabbed the first thing [he] s[aw] in the yard, which was that red bat." Appellant testified

that the bat was a "plastic kid's bat." He denied using the bat to injure Lady Bear, claiming

he only used it to scare the dog by hitting the fence and bushes.

{¶ 9} Appellant admitted to striking Lady Bear with the bat one time. He claimed

the Ring security footage did not accurately portray his interaction with Lady Bear as the

video did not show that he "barely hit her * * *[as] [t]he branches and the fence took the

impact." He claimed that "[t]he video sounds worser than what it really was." The plastic

bat appellant claimed to have used to strike Lady Bear was admitted into evidence as a

defense exhibit, as were pictures of the injuries Lady Bear caused to the chihuahua.

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{¶ 10} Following closing arguments by the parties, the court took the matter under

advisement. A few days later, on September 16, 2022, the trial court found appellant guilty

of cruelty to a companion animal. In finding appellant guilty, the court noted that appellant's

testimony was "less than fully credible" whereas testimony from the state's witnesses "was

completely and totally unbiased, from people that didn't have any axe to grind with

[appellant]." Relying on the Ring doorbell footage, the court stated the following:

The doorbell, the video from this case, shows the [appellant] with a baseball bat violently striking his dog multiple times. He is in an uncontrollable rage. He is yelling. He even said in his testimony he lost his mind. The anger in his voice is evident as it can be, as he is using curse words as he is striking his dog, which I'm not going to repeat because they're too foul with – too disturbing to try and think about all of that again.

***

Well, animal cruelty is exactly what he did. He terrorized the dog. And if you look at the video, you can't come to any other conclusion other than that. And I'm finding him to be guilty.

His – his defense also involved the fact that he used a bat that was a plastic bat. It's a hard plastic bat, that if you struck a person in the face with it, you would probably break their face.

You would probably take their – ruin their vision. You would cause welts on it at the very least. It's a weapon and it can cause serious physical harm. To me it's not a defense, it's part of the problem.

The fact that there was no injuries that were noted by a veterinary exam the day after the incident, that doesn't mean that he didn't terrorize the dog that day, because he did.

[A]nd then finally, the [appellant] knew he did wrong. He apologized to his neighbor for doing it. And so for all of those reasons, I'm going to find the [appellant] to be guilty.

The court subsequently sentenced appellant to 90 days in jail, with all 90 days suspended,

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imposed two years of supervised community control, and ordered Lady Bear to be turned

over to the Butler County Dog Warden.

{¶ 11} Appellant appealed his conviction, raising two assignments of error for review.

As the assignments of error are related, we address them together.

{¶ 12} Assignment of Error No. 1:

{¶ 13} MR. GEORGE'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO

DUE PROCESS AND A FAIR TRIAL WERE VIOLATED WHEN THE TRIAL COURT

OVERRULED HIS CRIMINAL RULE 29 MOTION AFTER THE STATE FAILED TO PROVE

BEYOND A REASONABLE DOUBT THAT MR. GEORGE KNOWINGLY COMMITTED AN

ACT OF CRUELTY AGAINST HIS PIT BULL, LADY BEAR.

{¶ 14} Assignment of Error No. 2:

{¶ 15} MR. GEORGE'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE AS THE TRIAL COURT DID NOT RENDER AN APPROPRIATE

VERDICT IN LIGHT OF THE EVIDENCE PRESENTED AT TRIAL.

{¶ 16} In his first assignment of error, appellant argues the trial court erred in denying

his Crim.R. 29 motion for acquittal because the state failed to present proof beyond a

reasonable doubt that Lady Bear "suffered from an act of cruelty." In his second assignment

of error, he argues his conviction is against the manifest weight of the evidence as the

evidence did not demonstrate he "knowingly" inflicted cruelty on Lady Bear. Rather,

appellant contends that the evidence introduced at trial "[a]t best * * * indicated [he] acted

recklessly or negligently when he punished Lady Bear." He further contends that the

manifest weight of the evidence does not support a finding that he "was aware his discipline

could have caused unjustifiable pain and suffering" by Lady Bear.

{¶ 17} Crim.R. 29(A) provides that "[t]he court on motion of a defendant or on its own

motion, after the evidence on either side is closed, shall order the entry of a judgment of

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acquittal of one or more offenses charged in the indictment, information, or complaint, if the

evidence is insufficient to sustain a conviction of such offense or offenses." An appellate

court reviews the denial of a Crim.R. 29(A) motion under the same standard as that used

to review a sufficiency-of-the-evidence claim. State v. Haines, 12th Dist. Clermont No.

CA2021-07-040, 2022-Ohio-1145, ¶ 32.

{¶ 18} Whether the evidence presented at trial is legally sufficient to sustain a verdict

is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Grinstead,

194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the sufficiency

of the evidence underlying a criminal conviction, an appellate court examines the evidence

in order to determine whether such evidence, if believed, would convince the average mind

of the defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist. Fayette No.

CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he relevant inquiry is whether, after

viewing 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."

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

{¶ 19} A manifest weight of the evidence challenge, on the other hand, examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather 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.

"While appellate review includes the responsibility to consider the credibility of witnesses

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and weight given to the evidence, 'these issues are primarily matters for the trier of fact to

decide.'" State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 81,

quoting State v. Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, ¶ 26. An

appellate court, therefore, will overturn a conviction due to the manifest weight of the

evidence only in extraordinary circumstances when the evidence presented at trial weighs

heavily in favor of acquittal. Id., citing Thompkins, 78 Ohio St.3d at 387. Furthermore,

although the legal concepts of sufficiency of the evidence and weight of the evidence are

both quantitatively and qualitatively different, "[a] determination that a conviction is

supported by the manifest weight of the evidence will also be dispositive of the issue of

sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19.

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

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 statute provides that the terms "cruelty," "torment," and

"torture" have the same meanings as in R.C. 1717.01. R.C. 959.131(A)(2). Pursuant to

1717.01(B), "'[c]ruelty,' '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." A person acts knowingly when,

regardless of purpose, the person is aware that the person's conduct will probably cause a

certain result or will probably be of a certain nature. R.C. 2901.22(B).

{¶ 21} After reviewing the record, weighing inferences and examining the credibility

of the witnesses, we find that appellant's conviction for cruelty to a companion animal is

supported by sufficient evidence and is not against the manifest weight of the evidence.

The state presented testimony and evidence from which the trier of fact could have found

all the essential elements of the offense proven beyond a reasonable doubt. The Ring

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doorbell security footage clearly showed appellant in a profanity-laden rage swinging a bat

at Lady Bear and striking the dog multiple times. The video footage combined with

appellant's admission to Case that he "beat" Lady Bear and his admission to Deputy

Niehaus that he struck the pit bull demonstrated that he tortured and cruelly beat his

companion animal.

{¶ 22} Contrary to his assertions, the record demonstrates appellant acted knowingly

when he grabbed the bat and struck Lady Bear with it multiple times. Regardless of whether

his intent was to "discipline" the dog as he claims, appellant was aware that striking Lady

Bear repeatedly with a bat was cruel and brought about unnecessary pain and suffering to

the dog. The fact that there were no visible injuries to Lady Bear did not mean that Lady

Bear did not suffer unnecessary pain or suffering. The dog can be seen on the video

footage trying to dart away from appellant's beating and when she was examined in the

days following the attack, she exhibited signs of trauma by flinching and dropping to the

ground when being scanned for a microchip. Furthermore, as appellant was charged under

division (B) of R.C. 959.131 rather than division (C) of the statute, the state was not required

to prove "serious physical harm" to Lady Bear to sustain a conviction against appellant.

See State v. Banks, 1st Dist. Hamilton Nos. C-200395 and C-200396, 2021-Ohio-4330, ¶

27-31 (finding a defendant's convictions for cruelty to companion animals were supported

by sufficient evidence and were not against the manifest weight of the evidence where the

dogs who had been stuck with a rod multiple times were cowered, though without visible

injuries).

{¶ 23} The trier of fact heard testimony from appellant that he did not harm Lady

Bear, but merely scared her by primarily hitting the fence and trees in the backyard. The

trial court compared appellant's testimony of the actions he took to "discipline" his dog to

the Ring security footage, which captured appellant's words and actions on August 22,

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2022. We have reviewed the security footage and agree with the trial court that

aggressively striking a dog with a hard plastic bat numerous times while in a fit of rage does

not amount to discipline. Not only was the alleged "discipline" administered by appellant

remote in time from the incident in which Lady Bear injured the smaller dog, but his actions

were excessive and amounted to cruelty, torture, and torment as defined by R.C.

1717.01(B).

{¶ 24} Accordingly, given the evidence admitted at trial, we find that appellant's

conviction of cruelty to a companion animal is supported by sufficient evidence and is not

against the manifest weight of the evidence. Appellant's first and second assignments of

error are overruled.

{¶ 25} Judgment affirmed.

PIPER and M. POWELL, JJ.., concur.

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