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City of Beachwood v. Pearl

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 26, 2018

CITY OF BEACHWOOD PLAINTIFF-APPELLEE
v.
JUSTIN PEARL DEFENDANT-APPELLANT

          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, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., JUDGE.

         {¶1} 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.

         I. Factual and Procedural History

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} The defense called three witnesses: (1) Paul Shaughnessy, an expert in the field of canine health and transportation, (2) appellant's wife, Nikoline Larson, [1] and (3) appellant. The bench trial concluded on December 5, 2016. The trial court ordered the parties to submit written closing arguments.

         {¶8} 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 law.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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.

         {¶12} 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 entry.

         {¶13} Appellant filed the instant appeal challenging the trial court's judgment on May 3, 2017. He assigns six errors for review:

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 appellant's convictions.

         For ease of discussion, we will address appellant's assignments of error out of order.

         II. Law and Analysis

         A. Jurisdiction

         {¶14} 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.

         {¶15} 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 (1978).

         {¶16} 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 sentencing entry.

         {¶17} 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 minutes."

         {¶18} 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."

         {¶19} 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).

         {¶20} 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.

         {¶21} 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).

         {¶22} 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.

         {¶23} 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. 618.051(c)(5) provides,

[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.

         {¶24} 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 error.

         {¶25} 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 (c)(2).

         {¶26} 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.

         {¶27} 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.

         {¶28} 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 convicted.

         B. Right to Remain Silent

         {¶29} 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.

         {¶30} 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.

         {¶31} 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.

         {¶32} 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 vehicle open.

         {¶33} 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 ...

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