Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Shaker Heights Municipal Court Case
No. 2016 CRB 00741
ATTORNEY FOR APPELLANT Eric M. Levy
ATTORNEY FOR APPELLEE Thomas F. Greve Prosecutor, City of
Beachwood Matty, Henrikson & Greve, L.L.C.
BEFORE: Celebrezze, J., E.A. Gallagher, A.J., and McCormack,
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., JUDGE.
Defendant-appellant, Justin Pearl ("appellant"),
brings this appeal challenging his conviction and the trial
court's sentence for cruelty to companion animals.
Specifically, appellant argues that the trial court erred by
finding him guilty of violating Beachwood Codified Ordinances
("B.C.O.") Section 618.051(c)(5) because he was
charged with violating Section 618.051(c)(2) in the
complaint; the trial court presumed his guilt based on
statements he made to the responding officer violating his
Fifth Amendment privilege against self-incrimination; the
trial court erred by arbitrarily disregarding the
uncontradicted testimony of the defense's expert witness;
his conviction was not supported by sufficient evidence and
is against the manifest weight of the evidence; and the trial
court erred by sentencing him to probation in its sentencing
entry without imposing the sentence in open court. After a
thorough review of the record and law, this court affirms in
part, vacates in part, and remands for further proceedings
consistent with this opinion.
Factual and Procedural History
The instant matter arose from a July 28, 2016 incident during
which appellant parked his vehicle and left his two dogs in
the vehicle in a parking lot on Chagrin Boulevard in
Beachwood, Ohio. Appellant had an appointment scheduled for
2:30 p.m., however he was running a few minutes late. The
temperature was approximately 84 degrees at the time of the
incident. The windows of appellant's vehicle were cracked
open one or two inches.
Lisa Friedman worked in the area and noticed the dogs in
appellant's vehicle around 2:43 p.m. She became concerned
about the dogs' safety and believed that it was too hot
outside for the dogs to be confined in the vehicle. As a
result, she called the Beachwood Police Department and her
sister, Lori Sustin, who also worked in the area.
Beachwood Police Officer Monica Svigel responded to the
parking lot where appellant's vehicle was parked. Officer
Svigel was eventually able to identify appellant as the owner
of the vehicle in which the dogs were confined. A police
dispatcher contacted appellant and advised him to return to
his vehicle. When appellant returned to his vehicle, the dogs
had been confined for at least 40 minutes. At this point,
Officer Svigel made the decision to arrest appellant for
cruelty to companion animals.
Appellant was charged in a one-count complaint with cruelty
to companion animals, in violation of B.C.O. 618.051(c). As
will be discussed in further detail below, the complaint
alleged that appellant violated subsection (c)(2) but
incorporated the language set forth in subsection (c)(5).
Appellant was arraigned on August 16, 2016. He pled not
guilty to the complaint.
A bench trial commenced on November 28, 2016. The city
presented the testimony of the two eyewitnesses and the
responding police officer. At the close of the city's
case-in-chief, appellant moved for a Crim.R. 29 judgment of
acquittal, which the trial court denied.
The defense called three witnesses: (1) Paul Shaughnessy, an
expert in the field of canine health and transportation, (2)
appellant's wife, Nikoline Larson,  and (3)
appellant. The bench trial concluded on December 5, 2016. The
trial court ordered the parties to submit written closing
The trial court issued a judgment entry on March 3, 2017,
finding appellant guilty of cruelty to companion animals. The
judgment entry included findings of fact and conclusions of
On March 20, 2017, appellant filed a motion to set aside the
trial court's verdict and for a judgment of acquittal
pursuant to Crim.R. 29(C). The trial court issued a judgment
entry on March 29, 2017, denying appellant's motion.
The trial court held a sentencing hearing on April 3, 2017.
The prosecutor and defense counsel addressed the court. The
trial court imposed a $500 fine and suspended $300 of the
fine on the condition that appellant did not have any
additional dog charges in the next 12 months.
On April 3, 2017, the trial court issued a sentencing
judgment entry in which it (1) imposed a $500 fine plus court
costs; (2) terminated the administrative license suspension;
(3) placed appellant on inactive probation for one year; and
(4) suspended $300 of the $500 fine on the condition that
appellant does not have any similar convictions or dog
violations during the one-year probationary period.
On April 18, 2017, appellant filed a motion for the trial
court to issue a nunc pro tunc sentencing entry reflecting
that the trial court did not place him on probation. The
trial court issued a judgment entry on April 27, 2017,
denying appellant's motion for a nunc pro tunc sentencing
Appellant filed the instant appeal challenging the trial
court's judgment on May 3, 2017. He assigns six errors
I. The trial court erred when it found appellant guilty of
violating Ord. 618.051(C)(2) as charged despite making its
findings under the elements set forth in Ord. 618.051(C)(5)
for which the court was without jurisdiction.
II. The trial court erred when it imposed a sentence of
inactive probation in its judgment entry that was not imposed
at the sentencing hearing.
III. The trial court erred when it specifically indicated in
its written opinion that it considered appellant's not
providing evidence and remaining silent when questioned by
police as an indication of his guilt.
IV. The trial court erred and abused its discretion by
arbitrarily disregarding uncontradicted expert testimony.
V. The trial court erred in finding appellant guilty of
cruelty to companion animals where the evidence presented at
trial was insufficient to overcome appellant's Crim.R. 29
motion and to support a conviction at the close of evidence.
VI. The trial court erred in finding appellant guilty of
cruelty to companion animals after a bench trial where the
manifest weight of the evidence did not support
ease of discussion, we will address appellant's
assignments of error out of order.
Law and Analysis
In his first assignment of error, appellant argues that the
trial court erred by finding him guilty of cruelty to
companion animals, in violation of B.C.O. 618.051(c)(2), as
charged in the complaint, because the trial court's
findings pertained to cruelty to companion animals in
violation of B.C.O. 618.051(c)(5). Appellant contends that
the trial court did not have jurisdiction to find him guilty
of violating B.C.O. 618.051(c)(5) because the complaint
alleged that appellant violated B.C.O. 618.051(c)(2).
Appellant essentially argues that the trial court found him
guilty of the wrong ordinance.
Initially, we note that defense counsel did not object to the
trial court's jurisdiction below. Accordingly, we review
for plain error. State v. Murphy, 91 Ohio St.3d 516,
532, 747 N.E.2d 765 (2001), quoting State v. Childs,
14 Ohio St.2d 56, 62, 236 N.E.2d 545 (1968) ("Even
constitutional rights 'may be lost as finally as any
others by a failure to assert them at the proper
time.'"). Crim.R. 52(B) provides that "[p]lain
errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the
court." We are mindful that notice of plain error
"'is to be taken with the utmost caution, under
exceptional circumstances, and only to prevent a manifest
miscarriage of justice.'" State v. Barnes,
94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002), quoting
State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804
In support of his argument that the trial court found him
guilty of the wrong subsection of B.C.O. 618.051(c),
appellant contends that (1) the wrong subsection was cited in
the complaint and the trial court's March 3, 2017
judgment entry, (2) the complaint cited the wrong degree of
the offense with which he was charged, and (3) the wrong
offense was cited in the trial court's April 3, 2017
First, regarding the complaint, the offense "cruelty to
companion animals" was listed at the top of the
complaint. Immediately beneath this offense, the complaint
cited B.C.O. 618.051(c)(2). The body of the complaint also
alleged that appellant violated B.C.O. 618.051(c)(2). Despite
the citations to B.C.O. 618.051(c)(2) at the top and in the
body of the complaint, the body of the complaint incorporated
the language set forth in B.C.O. 618.051(c)(5), not (c)(2).
The body of the complaint alleged that appellant "did
negligently deprive his two (2) dogs of water while confining
them in a hot vehicle during 84 degree weather. Witnesses
advised the dogs were in the car for approximately 40
The top of the complaint stated that the offense with which
appellant was charged was a misdemeanor of the first degree.
B.C.O. 618.051(f)(2) provides that "[w]hoever violates
[B.C.O. 618.051(c)] is guilty of a misdemeanor of the second
degree on a first offense and a misdemeanor of the first
degree on each subsequent offense."
Second, the trial court's March 3, 2017 judgment entry
stated that appellant was charged with violating B.C.O.
618.051(c)(2). However, the judgment entry incorporates the
language from B.C.O. 618.051(c)(5). In the body of the
judgment entry, the trial court found appellant guilty of the
offense of cruelty to companion animals, without citing the
specific subsection of B.C.O. 618.051(c).
Third, the trial court's April 3, 2017 sentencing
judgment entry states that appellant was charged with
"cruelty to animals." This offense, however, is
governed by B.C.O. 618.05, not B.C.O. 618.051.
Appellant argues that he could not have reasonably known what
offense - a violation of B.C.O. 618.051(c)(2) or a violation
of B.C.O. 618.051(c)(5) - that he was being charged with. He
further emphasizes that these subsections have different
elements. Appellant asserts that he raised this issue to the
trial court in his written closing argument and that neither
the court nor the city amended the complaint to reflect the
correct subsection of B.C.O. 618.051(c).
The city concedes that the complaint erroneously cited B.C.O.
618.051(c)(2) as the offense with which appellant was
charged. The city argues, however, that appellant had
adequate notice that he was charged for violating B.C.O.
618.051(c)(5), and thus, appellant was not prejudiced by the
"numerical designation error." After reviewing the
record, we agree with the city.
It is undisputed that the elements of a violation of B.C.O.
618.051(c)(2) and (c)(5) are different. B.C.O. 618.051(c)(2)
provides that "[n]o person who confines or who is the
custodian or caretaker of a companion animal shall
negligently * * * [o]mit any act of care by which unnecessary
or unjustifiable pain or suffering is caused, permitted or
allowed to continue, when there is a reasonable remedy or
relief, against the companion animal[.]" B.C.O.
[n]o person who confines or who is the custodian or caretaker
of a companion animal shall negligently * * * [d]eprive 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 in any of those specified manners.
Although the complaint alleged that appellant violated B.C.O.
618.051(c)(2), a review of the complaint reflects that the
citation to B.C.O. 618.051(c)(2) was merely a typographical
error. The complaint incorporated the language of B.C.O.
618.051(c)(5), not (c)(2). Similarly, although the trial
court's March 3, 2017 judgment entry states that
appellant was charged with violating B.C.O. 618.051(c)(2),
the trial court cites the language set forth in B.C.O.
618.051(c)(5), and the trial court's findings of fact and
conclusions of law pertain to the elements of subsection
(c)(5), rather than the elements of subsection (c)(2).
Accordingly, it is evident that the trial court's
citation to B.C.O. 618.051(c)(2) was merely a typographical
Appellant's assertion that he could not have reasonably
known which subsection he was being charged with is
unsupported by the record. Defense counsel's written
closing argument demonstrates that although the complaint and
the city's initial closing argument cited B.C.O.
618.051(c)(2), appellant was aware that he was being
prosecuted for violating B.C.O. 618.051(c)(5). Defense
counsel's closing argument provides, in relevant part,
"[t]hough the [p]rosecution, in closing, alleges to
charge [appellant] with a violation of 618.051(c)(2), it
actually quotes and makes allegations based on Section
618.051(c)(5). However, there is no need to harp on what
is likely a simple typographical error" (Emphasis
added.) In the city's final closing argument, the
prosecutor confirmed that appellant was correct in that the
applicable subsection of B.C.O. 618.051 was (c)(5), not
Based on the foregoing analysis, we find that appellant
failed to demonstrate that he was prejudicially misled as a
result of the numerical errors regarding the subsection of
the cruelty to companion animals offense with which he was
charged and convicted. Accordingly, appellant's first
assignment of error is overruled.
It is well established that a trial court speaks through its
journal entries. State v. Miller, 127 Ohio St.3d
407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 12. A trial court
may correct clerical errors in its journal entries at any
time in order to conform to the transcript of the
proceedings. State v. Lugo, 8th Dist. Cuyahoga No.
103893, 2016-Ohio-2647, ¶ 3, citing State v.
Steinke, 8th Dist. Cuyahoga No. 81785, 2003-Ohio-3527,
¶ 47; Crim.R. 36. Trial courts retain continuing
jurisdiction to correct clerical errors in judgments with a
nunc pro tunc entry to reflect what the court actually
decided. State ex rel. Cruzado v. Zaleski, 111 Ohio
St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19.
Because the trial court's March 3, 2017 judgment entry
erroneously states that appellant was charged with violating
B.C.O. 618.051(c)(2), and because the trial court's April
3, 2017 sentencing judgment entry erroneously states that
appellant was charged with "cruelty to animals"
rather than "cruelty to companion animals, " we
remand the matter to the trial court for the limited purpose
of issuing nunc pro tunc journal entries that accurately
reflect the offense with which appellant was charged and
Right to Remain Silent
In his third assignment of error, appellant takes issue with
testimony elicited by the prosecution and comments in the
city's opening and closing arguments regarding appellant
not having water or a ventilation system in his vehicle.
Appellant argues that the testimony and statements were based
on the fact that he did not specifically inform the
responding police officer that he had water or a ventilation
system in his vehicle. He contends that the trial court
committed plain error by considering his failure to make a
statement regarding water or a ventilation system in his
vehicle as an indication of his guilt. We disagree.
It is well established that opening and closing statements
are not evidence. Peffer v. Cleveland Clinic Found.,
8th Dist. Cuyahoga No. 94356, 2011-Ohio-450, ¶ 27.
Appellate courts presume that in a bench trial, a trial court
considered only relevant and admissible evidence. State
v. Crawford, 8th Dist. Cuyahoga No. 98605,
2013-Ohio-1659, ¶ 61; State v. Chandler, 8th
Dist. Cuyahoga No. 81817, 2003-Ohio-6037, ¶ 17.
Initially, we note that when appellant returned to his
vehicle in the parking lot, he did not remain silent or
invoke his constitutional rights to remain silent or against
self-incrimination. Rather, appellant freely and voluntarily
engaged in a conversation with Officer Svigel.
During this conversation, Officer Svigel stated that there
were two dogs in appellant's vehicle that were panting
without access to water. Appellant did not specifically
address or dispute Officer Svigel's assertion that the
dogs did not have water. Rather, he stated that (1) whenever
he leaves the dogs in the car he turns the car on at
different times, (2) while he was in his appointment, he had
remotely started his vehicle and his vehicle had been
running, (3) when he starts his vehicle remotely, it turns
off after 15 minutes, and (4) he had the windows of his
The prosecution did not comment or elicit testimony regarding
appellant's silence or failure to profess his innocence.
As noted above, appellant did not remain silent and he did,
in fact, profess his innocence. On direct examination, the
prosecutor asked Officer Svigel, "from the time
[appellant] came out [to his vehicle in the parking lot],
what did he do and what did he say?" (Tr. 81.) The
following exchange took place:
THE PROSECUTOR: Did [appellant] offer to show you or did he
show you at any point in time while you were present on the
scene that there was water that ...