[Cite as Beachwood v. Pearl , 2018-Ohio-1635.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105743

CITY OF BEACHWOOD

PLAINTIFF-APPELLEE

vs. JUSTIN PEARL

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART; VACATED IN PART; AND REMANDED

Criminal Appeal from the Shaker Heights Municipal Court Case No. 2016 CRB 00741

BEFORE: Celebrezze, J., E.A. Gallagh er, A.J., and McCormack, J.

RELEASED AND JOURNALIZED: April 26, 2018ATTORNEY FOR APPELLANT Eric M. Levy 55 Public Square, Suite 1600 Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

Thomas F. Greve Prosecutor, City of Beachwood Matty, Henrikson & Greve, L.L.C. 55 Public Square, Suite 1775 Cleveland, Ohio 44113

FRANK D. CELEBREZZE, JR., J.: {¶1} Defendant-appellant, Justin P earl (“appellant”), brings this appeal challenging his

conviction and the tria l 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) becau se he was charged w ith violating Section 618.051(c)(2) in the complaint; the tr ial court presumed his guilt base d on statements he made to the responding officer violating his Fifth Amendment privilege ag ainst 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 appointme nt scheduled for 2:30 p.m., however he was running a few minutes late. The temperature wa s approximately 84 degrees at the time of the

incident. The windows of a ppellant’s vehicle were crack ed open one or two inches. {¶3} Lisa Friedman worked in the area and no ticed the dogs in appellant’s vehicle around 2:43 p.m. She became concerned about the dogs’ sa fety 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 conf ined. 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 compla int with cruelty to companion animals, in violation of B.C.O. 618.051(c). As will be di scussed in further deta il below, the complaint alleged that appellant violated subsection (c)(2) but incorporat ed 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’scase-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 or dered 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 entr y included findings of f act and conclusions of

law. {¶9} On March 20, 2017, appellant file d 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 h earing on April 3, 2017. The prosecutor and

defense counsel addressed the court. The trial court impos ed 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 se ntencing judgment entry in which it (1) imposed a $500 fine plus court costs; (2) termin ated the administrative license suspension; (3) placed appellant on inactive proba tion 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.

1 Appellant and Larson were not married at the time of the July 28, 2016 incident.{¶12} On April 18, 2017, appellant filed a motion fo r the trial court to issue a nunc pro tunc sentencing entry reflecting that the tria l court did not place him on probation. The trial court issued a judgment entry on April 27, 2017, de nying 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 f ound 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 impos ed at the sentencing hearing. III. The trial court erred when it specifically indicated in its wr itten 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 a nd 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 a ddress appellant’s a ssignments of error out of order. II. Law and Analysis

A. Jurisdiction {¶14} In his first assignment of e rror, appellant argues that th e 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 inviolation 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). Appe llant essentially argues that the trial court found him guilty of the wrong ordinance. {¶15} Initially, we note that defense counsel did notobject 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 ex ceptional 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 tr ial court found him guilty of the wrong subsection of B.C.O. 618.051(c), appe llant contends that (1) the wrong subsection was cited in the complaint and the trial cour t’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 negligen tly 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 st ated that appellant was charged with violating B.C.O. 618.051(c)(2). Ho wever, 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 en try 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 violati on of B.C.O. 618.051(c)(5) — that he was being charged with. He further emphasizes that th ese 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 e rroneously cited B.C.O. 618.051(c)(2) as the offense with which appellant was charged. The city argues , however, that appellant hadadequate notice that he was charged for viola ting B.C.O. 618.051(c)(5), a nd 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 anima l 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 su ffer 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 incorporat ed the language of B.C.O. 618.051(c)(5), not (c)(2). Similarly, although the trial court’s Ma rch 3, 2017 judgment entry states that appellant was charged with violating B.C.O. 618.051(c)(2), th e trial court cites the language set forth in B.C.O. 618.051(c)(5), and the trial c ourt’s findings of fact and conc lusions of law pertain to the elements of subsection (c)(5), rather than the el ements of subsection (c)(2). Accordingly, it is

evident that the trial court’s c itation to B.C.O. 618.051(c)(2) was me rely a typographical error.{¶25} Appellant’s assertion that he could not have reasonabl y known which subsection he was being charged with is unsupported by the record. Defense counsel’s written closing argument demonstrates that although the complain t 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 argumentprovides, in relevant part, “[t]hough the [p]rosecution, in closing, alleges to charge [appellant] with a viol ation of 618.051(c)(2), it actually quotes and makes allega tions 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 th at 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 whic h 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 thatappellant was charged with viol ating B.C.O. 618.051(c)(2), and becau se the trial c ourt’s April 3, 2017 sentencing judgment entry erroneously states that appellant was ch arged 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 pr o tunc journal entries that accurately reflect the offense with which appellant was ch arged 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 re garding 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 in form 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 tria l 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 i nvoke his constitutional rights to remain silent or against self-incrimination. Rather, appellant freely and voluntarily en gaged in a conversation with Officer Svigel. {¶32} During this conversation, Officer Svigel stated that there were two dogs inappellant’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 ha ve 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 re motely started his vehicle and hi s vehicle had been running, (3) when he starts his vehicle remotely, it turns o ff 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 rema in silent and he did, in fact, profess his innocence. On direct examination, the pr osecutor 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 had been provided to his two dogs?

OFFICER SVIGEL: No. THE PROSECUTOR: At any time while [appellant] was on the scene, did he show you any of the mechanization or any special way his truck had been built to provide sustenance or water to his two dogs? OFFICER SVIGEL: No. In fact, when I advised him that he was going to be under arrest, he tried to artic ulate that he did periodica lly start his truck; and I explained that we have witness statements saying he didn’t. And then he further explained, Well, the windows were cracke d. And I said, Well, it’s still hot. And that was the end of his argument about the comfortability of his dogs. He never elaborated on water in the vehicle or any specifications to the vehicle to indicate comfortability for the animals.

THE PROSECUTOR: Did he indicate to you he had any type of special ventilation system while he was present on the scene at any time involving his two dogs being inside of his vehicle? OFFICER SVIGEL: He did not. He only indi cated that he could remote start his vehicle for air conditioning purposes.(Tr. 83-84.) {¶34} On direct examination, appe llant testified that “there ’s a cup holder between the [back] seats, which is where I put water in for the — for the dogs. It sits in — there’s two very large cup holders which fit exactly one full water bottle. More than that little water bottle there, it fits in the cup holder.” (Tr. 164.) Appellant testified that he had wa ter in these cup holders when he went into his appointment on July 28, 2016. {¶35} The trial court did not find appellant’s testimony that the dogs had access to water inside the vehicle and that a ventilation system was operating inside the vehicle to be credible. The trial court’s judgment entry provides, in relevant part, During their confinement, the dogs could be seen panting profusely and with dried out tongues. No water was visible with the dried out tongues giving indication that they had not been drinking water a lthough one of the dogs attempted to take water from a witness. The only contradict ory testimony about the availability of water was offered by [appellant] at trial sa ying that the cup holders in the truck contained water. The fact that this was stated for the first time at trial makes the testimony on this point less credible carrying less weight with the court.

* * * [Appellant] offered testimony that the truck had been modified with an automatic air fan system. Yet, this system is ne ver heard to be running during the time the witnesses or police officer were near the truck and awaiting [appellant’s] return. It is also noteworthy that as soon as [appellant] approached the truck in response to the officer’s call, he did remotely start the truck for the first time . If the interior automatic fan system were suffici ent, there would have been no need to start the truck upon his appr oach. [Appellant] only returned to the truck at 3:25 p.m., because he was summoned by the police. (Emphasis sic.) {¶36} After reviewing the record, we find no merit to appellant’s assertion that the trial court presumed he was guilty based on his failure to inform Officer Svigel that the dogs had

access to water inside the vehicle or that he had a ventilation syst em that was operating. Rather,the trial court concluded that appellant’s testim ony that the dogs had access to water and that a ventilation system was operating inside his vehicle was not credible based on the prior statements that appellant voluntarily made to Officer Svigel at the time of the incident, the testimony of eyewitnesses Friedman and Sustin, and the testimony of Officer Svigel. The trial court’s credibility determination on this point does not run afoul to the Fifth Amendment or appellant’s privilege against self-incrimina tion. Accordingly, appellant’s third assignment of error is

overruled. C. Expert Testimony {¶37} In his fourth assignment of error, appellant argues that the trial court abused its discretion by arbitrarily disreg arding the testimony of the de fense’s expert witness, Paul Shaughnessy. Shaughnessy was recognized as an expert in the field of canine health and transportation. He was not present at the s cene at the time of the incident; however, he reviewed the video footage from Officer Svigel’s body camera. He also examined appellant’s

vehicle after-the-fact and without appellant’s dogs inside. Sh aughnessy described a “water system” and a “ventilation system” that appellant has in his vehicle. {¶38} Regarding the “water system,” Shaughnessy explained that when he stood outside the vehicle and looked through the windows, he coul d not identify any water inside the vehicle. However, when he opened the doors and examined the inside of th e vehicle, he discovered that the cup holders in the backseat were filled with water. Shaughnessy stated that appellant uses the cup holders as a “water rese rvoir” for the dogs. He explai ned that you cannot see the water in the cup holders by simply looking through the windows. He could not definitively state, however, that the cup holders were filled with water when the dogs were confined in appellant’s vehicle on July 28, 2016.{¶39} Shaughnessy also testified about the “ventila tion system” that appellant installed in his vehicle. He explained thatyou cannot see the ventilation system by simply looking through the windows. The ventilation system is underneat h the vehicle’s floorboards and it pulls cool

air from underneath the vehicle into the car. When the ventilation system is activated, it makes a “humming noise,” and the system is “very quiet.” He asserted that the ventilation system can activate even when the vehicle is turned off. He explained that the ventilation system is a standard piece of equipment in police vehicles. Shaughnessy testified that the ventilation system that appellant had in his vehicle could keep the dogs safe if they were confined for a 40-minute time period. He could not definitively state, however , that the ventilation system was, in fact, on when the dogs were confin ed in appellant’s vehicle on July 28, 2016. {¶40} Based on his review of the video footage, he opined that (1) the dogs were not exhibiting behaviors that led him to believe they were in heatstroke or in any danger at the time they were confined in appellant’s vehicle; and (2) if the dogs were confined in appellant’s vehicle in 85-degree heat, without water and a ventilation system, it is ve ry possible they would have been in great danger and coul d possibly even have died. {¶41} Shaughnessy hypothesized that when the dog s were confined in appellant’s vehicle on July 28, 2016, either the ventilation system was on or the dogs had access to water inside the vehicle. On cross-examination, Shaughnessy asserted that it woul d be dangerous to confine the dogs in the vehicle without a ventilation syst em and access to water when the temperature outside was 85 degrees. (Tr. 188.) {¶42} In support of his argument that the trial court abused its disc retion by arbitrarily ignoring Shaughnessy’s testimony, a ppellant directs this court to State v. White , 118 Ohio St.3d 12, 2008-Ohio-1623, 885 N.E.2d 905. In White , the Ohio Supreme Court explained,[w]hile the trial court is the trier of fact, it may not disregard credible and uncontradicted expert testimony in favor of either the perceptions of lay witnesses or of the court’s own expectations * * *. Doing so shows an arbitrary, unreasonable attitude toward the evidence before the court and constitutes an abuse of discretion.

Id . at ¶ 74. The trier of fact cannot “weigh” witne ss testimony and asse ss its “credibility,” unless there are conflicts in the evidence or questions of credibility to be resolved.

See [ State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997)], citing [ State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983)]. For example, the trier of fact may re ject an expert’s opinion based on the contradictory opinion testimony of another expert or the expert’s own concessions during cross-examination that question the credibility of his opinion

. See, e.g., State ex rel. Unger v. Indus. Comm. , 70 Ohio St.3d 672, 676, 640 N.E.2d 833 (1994); State v. Pierce , 64 Ohio St.3d 490, 500-501, 597 N.E.2d 107 (1992). The trier of fact “may not disregard credible and uncontradicted expert testimony[.]” [ White at ¶ 74]. (Emphasis added.) Cromer v. Children’s Hosp. Med. Ctr. of Akron , 2016-Ohio-7461, 64 N.E.3d 1018, ¶ 26 (9th Dist.).

While a trial court cannot “arbitrarily” ignore an expert opinion, it may reach a contrary conclusion if there are “some reasons * * * objectively present” in the record to do so. State v. Brown , 5 Ohio St.3d 133, 135, 449 N.E.2d 449 (1983). Thus, an expert’s opinion is not conclusi ve, even if uncontradicted by another expert. Id .; see [ White at ¶ 71] (holding that the trial court is not required to accept an expert’s opinion when there is some objectively present reason for ignoring it).

State v. Walker , 1st Dist. Hamilton No. C-150757, 2017-Ohio-9255, ¶ 14. {¶43} After reviewing the record in the instant matter, we find that the trial court did notignore or disregard Shaughnessy’s testimony. Rather, the record reflects that the trial court determined that his testimony was not credible. Furthermore, we find that there were objectively present reasons based upon which th e trial court could re ject Shaughnessy’s conclusions and hypothesis and make its own determination as to whether it could reasonably be expected that appellant’s dogs would become sick or suffer as a result of appellant’s negligence. {¶44} First, in White , “the trial court’s rejection of th e expert testimony was not based on any credibility determination.” Id . at ¶ 73. In this case, unlike White , the trial court found that Shaughnessy’s testimony was not credible because he was not at the scene and did not observe the dogs firsthand while they were confined inside appellant’s vehicle. It is undisputed that Shaughnessy was not present at the scene and di d not observe the dogs in appellant’s vehicle firsthand. Shaughnessy’s observa tions were based on his review of the video footage recorded by Officer Svigel’s body camera and his subsequent examination of appellant ’s vehicle. During cross-examination, Shaughnessy ac knowledged that “with [the body camera video], we could not see in the car.” (Tr. 191.) He conceded that he could not clearly see into the vehicle from the video footage. Shaughnessy explained that the first time he actually sees the dogs on the video is when they exit the vehicle afte r arriving at appellant’s house. {¶45} Second, we find that there were objectiv ely present reasons based upon which the trial court could reject Shaug hnessy’s testimony and hypothesis. As noted above, Shaughnessy hypothesized that when the dogs were confined in appellant’s vehicle, either the ventilation system was on or the dogs had access to water inside the vehicle. This hypothesis is contradicted by the eyewitness testimony of Friedman, Sustin, and Officer Svigel. {¶46} Friedman testified that from the time she arrived on the scene until appellant returned to the parking lot, a ppellant’s car never went on and th at “[t]here was no sounds comingfrom that car. Had the car been running, I would not have called the police.” (Tr. 24.) When

defense counsel asked if she would have been c oncerned if she knew that there was a ventilation system in the car, Friedman asserted that she did not hear “anything going” in appellant’s vehicle. (Tr. 42.) Friedman also testified that she did not see any evidence that there was water inside

the vehicle. {¶47} Sustin testified that she did not hear an y fan noise inside a ppellant’s vehicle and that the car never started the entire time she was outside in the parking lot. She testified that she

“looked in the vehicle over and ove r again from different points of view,” and that there was not water inside the vehicle. (Tr. 69.) {¶48} Officer Svigel testified that she did not see any water in either the front or back seat. She did not observe the dogs having access to water or sustenance while she was on scene waiting for appellant to return to his car. Officer Svigel asserted that she did not feel any wind circulating into the vehicle when she stuck her hand inside. Officer Svigel explained that she

looked inside the vehicle in orde r to determine whether the dogs had access to any food or water. She did not see any water inside the vehicle. {¶49} The testimony of Friedman, Sustin, and Offi cer Svigel regarding the lack of water inside the vehicle is supported by the witnesses’ observations that the dogs’ tongues were “bone dry.” {¶50} To the extent that appellant argues that the ventilation system was activated while he was in his appointment, this argument is unsupported by the record. Because the ventilation system pulls air from underneath th e vehicle into the vehicle, Sh aughnessy explained that there would be a “fume factor” if the ventilation system kicked on when the car was running. In other words, if the vehicle was running, then the ven tilation system could, in theory, bring potentiallyharmful fumes from underneath the ve hicle and circulate th em inside the vehicle. However, he opined that the ventilation system would be eff ective as long as the car was not running. {¶51} Assuming that appellant ha d the ventilation system in his vehicle on July 28, 2016, and that the ventilation system worked even if the vehicle was off, there would be no need for appellant to remotely st art his vehicle while he was in hi s appointment. Ho wever, appellant advised Officer Svigel that he remotely started his vehicle while he was in his appointment, and he remotely started the vehicle as he exited the building and returned to the parking lot. If appellant had remote ly started his vehicle wh ile he was in his appoin tment, as he claimed, and the ventilation system was on, as Shaughnessy hy pothesized, then the dogs could have been in danger when the fumes from underneath the vehicl e were circulated in to the vehicle. {¶52} Shaughnessy’s hypothesis that the ventilation system was on while appellant was in his appointment is also contradict ed by Officer Svigel’s testimony. Officer Svigel testified that she reached her hand inside the vehicle to determine how hot it was inside. Officer Svigel concluded that “[t]he interior of the vehicle was significantly hotter than the exterior of the vehicle.” (Tr. 78.) She also a sserted that she did not feel any wind circulating into the vehicle when she stuck her hand inside. Had the ventilation system been working, as Shaughnessy hypothesized, the temperature insi de the vehicle should have been cooler than the temperature

outside. {¶53} Finally, Shaughnessy opined that the dogs w ould not be adversely impacted if they

were confined in the vehicle for 40 to 60 minutes if the temperature inside the vehicle was 90 to 95 degrees. Officer Svigel estimated, however, that when the temperature outside was 80 to 85 degrees, the temperature inside the vehicle would have been between 118 and 123 degrees after 40 minutes. (Tr. 96.){¶54} After reviewing the record, we cannot say the trial court abused its discretion in determining that the eyewitnesses were in a better position to view the dogs than Shaughnessy. The dogs cannot be clearly and consistently obs erved in the body camera video footage. The view of the dogs and the inside of appellant’s vehicle is obstructed by (1) the windows, which were cracked one or two inches, (2) the tint of th e rear windows, and (3) the reflection off of the windows. Furthermore, Officer Svigel is c onstantly moving around while her body camera is recording. She is interacting with Sustin and Friedman, and she is walking back and forth between appellant’s vehicle and her police cruiser. For all of these reasons, the trial court reasonably concluded that Officer Svigel, who wa s present at the scene and observing the dogs firsthand, was in a better position to view the dogs and their behavior than Shaughnessy. {¶55} To the extent that appellant argues that the trial court disregarded Shaughnessy’s testimony in favor of Officer Svigel’s testim ony regarding whether the dogs were exhibiting signs of heatstroke or dehydra tion, this argument is not supporte d by the record. In the trial court’s judgment entry, the trial court stated that while the dogs were confined inside the vehicle, they “could be seen panting profusely and with dried out tongues. No water was visible with the dried tongues giving indication that they had not been drinking water[.]” Appellant emphasizes, citing Shaughnessy’s testimony, th at profuse salivation, a bright red tongue, dizziness, and lethargy are signs of heatstroke a nd/or dehydration. Shaug hnessy asserted that a dry tongue is not indicative of a heatstroke and that it is normal for dogs to have dry tongues or tongues that are not excessively dripping. On the other hand, Officer Svig el asserted that the dogs’ bone-dry and whiteish tongues, lack of drool or saliva, and profuse panting were signs of heatstroke and dehydration.{¶56} After reviewing the record, we find that the trial court referenced “dried” and “dried out” tongues in its judgment entry as an indication that the dogs did not have access to

water inside the vehicle — not as an indication that the dogs were having a heatstroke or were dehydrated. {¶57} Based on the foregoing analysis, we cannot say that the tria l court arbitrarily disregarded Shaughnessy’s testimony. Although the city did not present expert testimony contradicting Shaughnessy’s testimony, the trial court determined that Shaughnessy’s testimony was not credible because he was not at the scene and did not observe the dogs firsthand. Furthermore, we find that ther e were objectively present reasons based upon which the trial court could reject Shaughnessy’s testimony and reach a contrary conclusion as to whether it could reasonably be expected that th e dogs would become sick or su ffer as a result of appellant’s negligence. First, the testimony of Friedm an, Sustin, and Officer Svigel contradicted Shaughnessy’s theory that there was water inside the vehicle or the ventilation system was on. Second, Shaughnessy’s concessions that he did not observe the dogs firsthand, that he could not clearly see the dogs or the inside of appellant’s vehicle on the body camera video, and that he did not actually see the dogs until they jumped out of the car in appellant’s driveway question the credibility of his opinion. Accordingly, we find no basis to conclude that the trial court abused its discretion. Appellant ’s fourth assignment of error is overruled. D. Sufficiency {¶58} In his fifth assignment of error, appella nt argues that the trial court erred by denying his Crim.R. 29 motion for a judgment of acquittal and that his c onviction for cruelty to companion animals was not supported by sufficient evidence. {¶59} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where the

state’s evidence is insufficient to su stain a conviction for the offense. Cleveland v. Pate , 8th Dist. Cuyahoga No. 99321, 2013-Ohio-5571, ¶ 12. We conduct the same analysis in reviewing a trial court’s ruling on a Crim.R. 29 motion and a challenge to the sufficiency of the evidence. State v. Bridgeman , 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus. {¶60} The test for sufficiency requires a determination of whether the prosecution met its burden of producti on at trial. State v. Bowden , 8th Dist. Cuyahoga No. 92266,2009-Ohio-3598, ¶ 12. The relevant inquiry is whet her, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could ha ve found the essential elements of the crime proven beyond a reasonable doubt. Thompkins, 78 Ohio St.3d at 386, 678

N.E.2d 541. {¶61} In the instant matter, appella nt was convicted of cruelty to companion animals in violation of B.C.O. 618.051(c)(5), wh ich provides in re levant part, [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 anima l 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 su ffer in any other way as a result of or due to the deprivation, confinement, or impoundment in any of those specified

manners. {¶62} Appellant argues that the city failed to establish that he either (1) negligently deprived his dogs of sufficient quantities of water and that it could reasonably be expected that his dogs would become sick of suffer as a result of the deprivation, or (2 ) negligently confined his dogs without affording them with shelter from heat and that it could reasonably be expected that his dogs would become sick or suffer as a result of the confinement. Appellant suggests that the city was required to present (1) expert testimony regarding whether it could reasonably be expected that his dogs would become sick or suffer as a result of being deprived of sufficientquantities of water or being confined in heat; (2) testimony regarding what quantity of water would be sufficient for the dogs under the cond itions on July 28, 2016; (3) expert testimony regarding how long the dogs could safely be c onfined in the vehicle on a cloudy day when the temperature was 85 degrees; and (4) expert testimony regarding the temperature inside the vehicle under the conditions present on July 28, 2016. Appellant further suggests that the city was required to establish that the dogs did not have access to sufficient quantities of water on the day of July 28, 2016 — not merely when they were confined inside the vehicle. We disagree. {¶63} As noted above, the city was requi red to establish that it could reasonably be expected that the dogs would become sick or suffer as a result of appellant’s negligence. The city was not, as appellant suggests, re quired to establish to a degree of scientific or professional certainty that the dogs could or did, in fact, become sick or suffer. {¶64} Appellant cites State v. Dixon , 6th Dist. Huron No. H-05-021, 2006-Ohio-2114, for the proposition that expert testimony from a veterina rian is required to establish a conviction for cruelty to animals. Appellant’s reliance on Dixon is misplaced. In fact, the Sixth District

noted that none of the state’s witnesses fo rmally testified as expert witnesses. Id . at ¶ 15. Furthermore, the court expl ained that “a lay person may give opinion evidence based upon

observed facts.” Id . at ¶ 16, citing Am. Louisiana Pipe Line Co. v. Kennerk , 103 Ohio App. 133, 144 N.E.2d 660 (6th Dist.1957). {¶65} After reviewing the record, we find that the city’s evidence, if believed, was sufficient to support appellant’s conviction. The city’s three ey ewitnesses — Friedman, Sustin, and Officer Svigel — all reasonably expected, based on their observations, that the dogs would

become sick and/or suffer as a re sult of appellant’s negligence.{¶66} First, regarding Officer Svigel’s testimony, appellant argues that the city attempted to elicit expert testimony from Officer Svigel ev en though she was not qualified to testify as an expert. Specifically, appellant a sserts that Officer Svigel testif ied about the temperature inside the vehicle without having an act ual understanding of the subject matter. He further contends that Officer Svigel was unable to testify whet her the dogs had access to sufficient quantities of water inside the vehicle, or whether the dogs consumed sufficient quan tities of water throughout the day. {¶67} Initially, we note that appellant did not object to Officer Svigel’s testimony during trial. Accordingly, he has waived all but plain error. State v. Lang , 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 136. {¶68} “Under Evid.R. 701, courts ha ve permitted lay w itnesses to express their opinions in areas in which it would ordinarily be expected that an expert must be qualified under Evid.R.

702.” State v. Primeau , 8th Dist. Cuyahoga No. 97901, 2012-Ohio-5172, ¶ 74, citing State v.

McKee , 91 Ohio St.3d 292, 744 N.E.2d 737 (2001). This c ourt has consistently recognized that the testimony of a state’s witness, who is not presented as an expert, is properly admitted under Evid.R. 701 when (1) the testimony is based on th e witness’s training or experience, (2) the testimony relates to the witne ss’s personal observations with the investigation, and (3) the testimony is helpful to determine a fact at issue. See, e.g., State v. Wilkinson , 8th Dist. Cuyahoga No. 100859, 2014-Ohio-5791, ¶ 52-53; Primeau at ¶ 75; State v. Cooper , 8th Dist. Cuyahoga No. 86437, 2006-Ohio-817, ¶ 18. Other appellate courts have similarly determined that “some testimony offered by [police] officers is lay person witness testimony even though it is based on the [officer’s] specialized knowledge.” State v. Johnson , 7th Dist. Jefferson No. 13JE5, 2014-Ohio-1226, ¶ 57 (detective’s te stimony as to gang activity was permissible under Evid.R. 701 based on detective’s pers onal knowledge andexperience in the field); see also State v. McClain , 6th Dist. Lucas No. L-10-1088, 2012-Ohio-5264, ¶ 13 (detective’s testimony th at quantities of narcotics recovered during the execution of the search warrant suggested that they were for sale as opposed to personal use was admissible under Evid.R. 701 as lay person opinion testimony because his testimony was ba sed on his training and experience); State v. Williams , 9th Dist. Summit No. 25716, 2011-Ohio-6604, ¶ 11 (officer’s testimony that the location was a me thamphetamine lab was proper Evid.R. 701 testimony because it was based on pers onal observation from items taken from garbage and found in the house).

State v. Calhoun , 8th Dist. Cuyahoga No. 105442, 2017-Ohio-8488, ¶ 35. {¶69} The record in this case refl ects that the city properly laid a foundation for Officer Svigel’s testimony and her tes timony was directly re lated to the actions she personally undertook and her personal, firsthand observa tions at the scene. Officer Svigel testified that she is a member of the Ohio Search Dog Association and that she has a search and rescue canine. Officer Svigel explained that she has been traine d on heat factors, inside and outside exposure to heat, and temperatures inside and outside of a vehicle as they relate to the confinement of a child, person, or animal. Officer Svigel asserted that she has previously ha ndled approximately two cases involving children being left inside a vehi cle in hot weather and approximately seven or eight cases involving animals being confin ed inside a vehicle in hot weather. {¶70} Based on her education, training, and experi ence, she approximated that when it is 80 to 85 degrees outside, the temperature inside a vehicle would be between 118 and 123 degrees after a 40-minute time period. (Tr. 96.) He r approximation was based on an American Veterinary Medical Association study. She testified that this was a dangerous condition for appellant to expose his dogs to and that the dog s suffered from being conf ined in appellant’s vehicle for more than 40 minutes. Aside from the 84-degree temperature, Officer Svigel testified the humidity on July 28, 2016, was 74%, w ith a maximum humidity of 94% for the day. (Tr. 85.){¶71} Officer Svigel testified regarding her observations of appellant’s dogs. She explained that the dogs were “panting profusely w ith very dry, hot tongues.” (Tr. 108.) Based on her observations, she believed that the dogs we re beginning to become distressed, and that they were showing signs of heatstroke or dehy dration. Officer Svigel believed that the dogs were dehydrated based on “[t]he fact that their tongues were bone dry, a nd they were sticking their faces right up to the glass and not a bit of drool was coming down [the windows], and they were panting profusely, which is what dogs do when they are excessively overheated.” (Tr. 108-109.) She asserted that the dogs’ tongues we re dried out and she described the color of their tongues as “whiteish” rather than pink. (Tr. 109.) {¶72} Officer Svigel testified that she reached her hand into appellant’s vehicle to see if it felt warmer inside the vehicle compared to wher e she was standing outside the vehicle. After reaching her hand inside the vehicle, she conclude d that “[i]t was significantly warmer where my hand was compared to where I was standing outside the vehicle.” (Tr. 95.) On cross-examination, defense counsel suggested that it was windy on the day in question. However, Officer Svigel asserted that she did not feel any wind circulating into the vehicle when she stuck her hand inside. Officer Svigel conf irmed that the conditions and observations that

factored into her decision to arrest appellant were the 84-degree temperature, the duration of the confinement, the lack of access to wa ter, and the condition of the dogs. {¶73} After review, we find that Officer Sv igel’s testimony was based on her own personal knowledge and experience as established by the city. Additionally, Officer Svigel’s testimony related specifically to her own firsth and observations, her actions on the scene, and why she undertook such actions, i.e., reaching he r hand inside the vehicle to determine the temperature inside where the dogs were confined. Officer Svigel’s testimony was helpful todetermine a fact in issue — whether appellant was negligent in confining his dogs inside his vehicle on July 28, 2016, without access to water a nd without shelter from heat, and whether the dogs could reasonably be expected to become sick or suffer as a result of the deprivation or confinement. Accordingly, the trial court neither abused its discretion nor committed plain error in allowing Officer Svigel to testify on these matters. {¶74} Finally, we note that this was a bench trial. In a bench trial, the trial court is presumed to consider only relia ble, relevant, and competent ev idence in rendering its decision unless it affirmatively appears to the contrary. State v. White , 15 Ohio St.2d 146, 151, 239 N.E.2d 65 (1968). There is nothing in the record be fore this court indicatin g that the trial court considered improper evidence. Based on the foregoing analysis, we find that Officer Svigel’s testimony alone, if belie ved, was sufficient to support appella nt’s conviction for cruelty to companion animals. {¶75} Second, eyewitnesses Friedman and Sustin also reasonably belie ved, based on their observations, that the dogs would become sick and/ or suffer as a result of appellant’s negligence. Friedman described herself as a “dog person” and explained that she has two dogs of her own. She testified that she was worried about the dog s because she thought it was too hot outside to leave the dogs in the car. She tried to give th e dogs water because she thought they were in

distress and she did not want them to die as a result of being confined in the vehicle. She explained that she would have called the police even if the dogs had access to water inside the

vehicle because she felt that th e air was hot enough. Friedman explained that it was cloudy, rather than sunny, on July 28, 2016. Nevertheless, she opined that it was “hot enough” to cause the dogs to be in distress.{¶76} Sustin explained that she is a dog owne r. She currently has two dogs and has owned eight dogs over the years. She testified that on July 28, 2016, it was very hot outside of appellant’s vehicle. She opined that it would have been “extremely uncomfortable” for the dogs inside the car due to the heat, the fact that the vehicle’s wi ndows were not rolled all the way down, and the air conditioning was not on. Unde r these circumstances, she considered the condition in which the dogs were c onfined to be dangerous. Sustin opined that the dogs were in danger and she was concerned that they were going to die. {¶77} Sustin testified that even if the dogs had access to water inside the vehicle, it was too hot to confine the dogs inside the vehicle. She explained, “[i]t was too hot in the car water or not. You — they say all the time that the heat in a car can fry a dog or a child’s brain regardless of whether there’s water there. It was ridiculously hot outside.” (Tr. 70.) She confirmed that she thought that the dogs were suffering and in danger as a result of being confined in appellant’s vehicle. {¶78} Both lay witnesses, Friedman and Sustin, testified as to their observations of the dogs and based on those observati ons, both Friedman and Sustin reasonably believed that the dogs were in danger and/or distre ssed as a result of being confined in appellant’s vehicle. This testimony, if believed, is sufficient to support appellant ’s conviction. {¶79} For all of the foregoing reasons, we find th at the trial court pr operly denied defense counsel’s motions for a Crim.R. 29 judgment of acquittal, and appe llant’s conviction is supported by sufficient evidence. Accordingly, appellant’s fifth assi gnment of error is

overruled.

E. Manifest Weight{¶80} In his sixth assignment of e rror, appellant argues that his conviction for cruelty to companion animals is against the manifest weight of the evidence. {¶81} In contrast to a sufficiency argument, a manifest weight challenge questions whether the state met its burden of persuasion. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, at ¶ 12. A reviewing court “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 reversed and a new trial ordered.” Thompkins , 78 Ohio St.3d at 388,

678 N.E.2d 541. A conviction should be reversed as against the manifest weight of the evidence only in the most “exceptional case in wh ich the evidence weighs heavily against the

conviction.” Id

. {¶82} Although we review credibility when cons idering the manifest weight of the evidence, we are cognizant that determinations regarding the credibility of witnesses and the weight of the testimony are primarily for the trier of fact. State v. Bradley , 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact is best able “to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The jury may take note of any inconsistenc ies and resolve them accordingly, “believ[ing] all, part, or none of a witness’s testimony.” 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). {¶83} In the instant matter, as noted above, Frie dman, Sustin, and Offi cer Svigel testified that the dogs did not have access to water inside th e vehicle, they did not hear or see a ventilationsystem operating inside the vehicle, and as a re sult, they believed that the dogs were suffering and in danger as a result of appellant’s negligence. {¶84} Appellant, on the other hand, tes tified that after he purchas ed his vehicle at the end of 2014, he modified it to create a ventilation syst em, explaining “I set a temperature for the system, and if it goes above — if it goes above a temperature fans come on and they pull air in

from beneath the truck and — and in to the truck, into the car.” (T r. 168.) He testified that he created the ventilation system for his dogs and to ensure that they would not overheat. He asserted that the ventilation system was in place on July 28, 2016. {¶85} Appellant testified that the dogs had access to water inside the vehicle. He explained that the cup holders in his truck “are designed to hold two big large cups, are just a reservoir sitting there. So I used — I repurposed that for holding water.” (Tr. 219.) Appellant asserted that he poured water into the cup holders fo r the dogs before he left his vehicle and went into his appointment. {¶86} In addition to appellant’s testimony, Lars on, appellant’s wife, testified about the ventilation system in appellant’s vehicle. She asserted that appellant always keeps water in the vehicle for the dogs. As noted above, Shaughne ssy hypothesized that the dogs either had access

to water inside the vehicle or that the vehicle’s ventilation system was on. {¶87} In support of his manifest weig ht challenge, appellant asse rts that “there is simply no credible evidence that can be used to prove that [he] was guilty of cruelty to companion animals.” Appellant’s brief at 30. He challenges the trial court’s determinations that (1) the dogs did not have access to water in side the vehicle, (2) appellant ’s vehicle was neither running nor remotely started when the dogs were confined, and (3) the ventilation or “cooling” system was not operating during the confinement.{¶88} First, appellant argues that the trial court’s determination that the dogs did not have access to water inside the vehicle is against the manifest weight of the evidence. Regarding Officer Svigel’s testimony that she did not observe any water inside the vehicle, appellant argues that she was only looking for a bowl or saucer of water, and that she did not know that appellant left water for the dogs inside the vehicle’s cup holders, nor look to see whether there was, in fact, water inside the cup holders. {¶89} Appellant contends that the evidence presented at trial demonstrated that the dogs were not dehydrated. In support of this argument, appellant a sserts that both Shaughnessy and Larson testified that the dogs’ dr ied out tongues did not indicate th at the dogs were dehydrated. He further suggests that if the dogs were, in fact , dehydrated, they would have attempted to break through the windows when Sustin attempted to provide water to them through the cracked

windows. {¶90} Second, regarding the trial c ourt’s finding that appella nt’s vehicle was neither running nor remotely started while the dogs were confined inside , appellant argues that this finding is insignificant. Appellant asserts that he had the ventilation system in the vehicle, which operated even if the vehicle was not on, a nd that Shaughnessy opined that the ventilation system could keep the dogs safe. {¶91} Third, regarding the trial court’s finding that the ventilation system was not operating while the dogs were confin ed, appellant argues that the c ity’s witnesses could not have heard the ventilation system from outside the vehi cle when the doors were closed. In support of this argument, he emphasizes that Shaughnessy de scribed the sound of the ventilation system as a quiet, humming noise. He further argues that there was no credible evidence regarding thetemperature inside the vehicle, and that Officer Svigel did not inspect the inside of his vehicle nor the ventilation system he installed. {¶92} Finally, appellant argues that the trial court disregarde d the testimony of Larson. Larson testified that she was in the canine unit in the Army. Furthermore, she is a preveterinary student, she works as an intern with a veteri narian, and she volunteers at the Cuyahoga County

Animal Shelter. {¶93} Larson testified that she told appellant to leave the dogs in his car during his appointment on July 28, 2016, because she knew about the ventilation system in his car and she knew that he always keeps water in the car. Larson believed that the dog s were “100% safe” in the car. (Tr. 207.) {¶94} Larson went to the police station after receiving a call from appellant. Thereafter, she took the dogs to the veterinarian to make sure that they were okay. However, she explained that she did not believe that the dogs were sufferi ng in any way. Larson asserted that she knows the symptoms to look for that indicate a dog is su ffering from heat exposure. She explained that heatstroke could cause vomiting and dizziness, thick saliva, and a red tongue. {¶95} On cross-examination, Larson testified that she put the dogs in appellant’s vehicle before appellant left for work in the morn ing on July 28, 2016. However, she acknowledged that several hours had elap sed between the time that she put the dogs inside appellant’s vehicle in the morning and the time that the police officers escorted appellant and his dogs to appellant’s

house. {¶96} Larson was not present when appellant arrived at his house with the dogs and the police officers. She testified that the dogs we re at appellant’s house for approximately two

hours before she saw them after th e incident and took them to the veterinarian’s o ffice. Duringthis two-hour time period during which the dogs were at appella nt’s house, the dogs had access to water. The dogs also had access to water be tween the time that they were confined in appellant’s vehicle and the time that Larson took them to the vete rinarian’s office. {¶97} Larson acknowledged that she was not presen t with appellant when he went to his appointment. She was not in the vehicle and did not see the vehicle at any time in the afternoon on July 28, 2016. Larson had no direct knowledge re garding the conditions inside appellant’s vehicle at the time the police were called to the scene. Specifically, Larson had no direct knowledge regarding whether the dogs had access to water when they were confined in the vehicle during appellant’s appoin tment, or whether the ventilation system in appellant’s vehicle was, in fact, operating. {¶98} After reviewing the record in this case, we cannot say that this is “an exceptional case” in which the trial court clearly lost its way and created such a manifest miscarriage of justice that appellant’s cruelty to companion an imals conviction was agains t the manifest weight

of the evidence. Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541. First, Friedman, Sustin, and Officer Svigel all testified that they did not observe any water inside the vehicle. This testimony is supported by Officer Svigel’s observa tion that the dogs’ tongues were “bone dry.” While it is conceivable that (1) there was water in the vehicle’s cup holders and (2) the witnesses

were unable to observe this wate r supply from outside the vehicle, the witnesses did not observe the dogs drinking water during the 40-minute period of time that they were on the scene. {¶99} Second, Friedman and Sustin testified that they did not hear any sounds or fan noises inside appellant’s vehicle. While it is conceivable that these witnesses were unable to hear the ventilation system, Officer Svigel testified that the temperature inside the vehicle was significantly hotter than the temperature outside, and that she did not f eel any wind circulatinginto the vehicle. Officer Svigel approximated that the temperature inside the vehicle was between 118 and 123 degrees. Had th e ventilation system been work ing, the temperature inside

the vehicle should have been cooler than the temperature outside. {¶100} The defense’s theory of the case was that the dogs had access to water inside the vehicle, and thus, appellant did not deprive them of water, and that the vehicle’s ventilation system protected the dogs from the heat. On th e other hand, the city’s theory of the case was that appellant negligently deprived the dogs of water and conf ined them in his vehicle without sheltering the dogs from the heat, and that it c ould reasonably be expected that the dogs would become sick or suffer as a result of appellant ’s negligence. Appellant’s conviction is not against the manifest weight of the evidence simply because the trial court chose to believe the city’s version of the events rather than appellant’s. See State v. Adhikari , 2017-Ohio-460, 84 N.E.3d 282, ¶ 55 (8th Dist.). {¶101} The trial court, as the trier of fact, was in the best position to weigh the credibility of the witnesses. Although a ppellant relies heavily on the tes timony of Shaughnessy and Larson in support of his manifest weight challenge, these witnesses were not present at the scene, they did not observe the dogs firsthand while they were confined in appellant’s vehicle, and they had no firsthand knowledge regarding the conditions unde r which the dogs were confined. The trial court was free to find — and clearly did find — the testimony of the city’s witnesses to be more credible than the testimony of appellant, Shaughnessy, and Larson. {¶102} Based on the foregoing analysis, appella nt’s sixth assignment of error is

overruled.

F. Sentence{¶103} In his second assignment of error, appellant argues thatthe trial court erred by imposing a sentence of inactive probation in its se ntencing judgment entry without imposing the sentence in open court during the Ap ril 3, 2017 sentencing hearing. {¶104} It is axiomatic that a criminal defendant has a fundamental right to be present at all critical stages of his criminal trial, including the imposition of sentence. State v. Taylor , 8th Dist. Cuyahoga No. 104243, 2017-Ohio-9270, ¶ 3, citing Section 10, Article I, Ohio Constitution, Crim.R. 43(A), and State v. Hale , 119 Ohio St.3d 118, 2008-Ohio-3426, 892

N.E.2d 864. “A trial court cannot impose a sentence in the sentencing entry that differs from that it imposed at the sentencing hearing.” State v. Vaughn , 8th Dist. Cuyahoga No. 103330, 2016-Ohio-3320, ¶ 18; see also State v. West , 9th Dist. Summit No. 27485, 2015-Ohio-2936, ¶ 49-52 (matter remande d for resentencing where trial court sentenced defendant on drug paraphernalia count in sentencing journal entry after trial court fa iled to address that count at sentencing hearing); State v. Jackson , 1st Dist. Hamilton No. C-140178, 2014-Oh io-5008, ¶ 22 (“a trial court’s sentence is contrary to law when it imposes a sentence in the sentencing entry different from the sentence announced at the sentencing hearing”)[.]

State v. Alvelo , 2017-Ohio-742, 85 N.E.3d 1032, ¶ 35 (8th Dist.). {¶105} In Cleveland v. Clemons , 90 Ohio App.3d 212, 628 N.E.2d 141 (8th Dist.1993),

this court held that the trial court committed reversible error by imposing an additional condition of probation outside of th e defendant’s presence. Id . at 214. The additional condition required

the defendant to submit to random drug testing. This court concluded that Crim.R. 43(A) required the trial court to amend the terms of pr obation in the physical presence of the defendant.

Id

. {¶106} In the instant matter, appellant argues that the trial court did not sentence him to inactive probation during the sentencing hearing, butthe trial court imposed an unspecified termof inactive probation in its sentencing judgment en try. On the other hand, the city argues that the transcript from the April 3, 2017 sentencing hearing clearly reflects that the trial court sentenced appellant to probation, a nd that the trial court found that appellant did not need to be monitored on active probation. {¶107} During the sentencing hearing, the prosecutor conceded that appellant loves and takes excellent care of his dogs. The prosecutor st ated that he believes “t here’s no issue or need for dog education” and that he had full confidence that there would not be any incidents involving appellant’s dogs in the future. Defense counsel advised the trial court that appellant prayed for leniency and opined that a fine woul d be an adequate sentence. Defense counsel explained, “I don’t believe that[appellant] is an individual who needs to be monitored on probation.” (Tr. 293.) {¶108} The trial court agreed with the prosecuto r’s and defense couns el’s statements. The trial court imposed the following sentence: I am going to suspend $300 of the $500 fine on condition that in the next 12 months there are no further dog charges. And I am also staying the sentence to indicate sentence to be appealed or fines and costs paid within 30 days. So that will allow you and [defense counsel] to discuss what will happen next. But in essence, it’s [$]200 and costs, all right. (Tr. 293-294.) {¶109} The trial court placed appellant on inactive proba tion in its April 3, 2017 sentencing judgment entry. The sentencing judgment entry provides, in relevant part, “[s]uspension of $300 of fine * * * on condition th at there are no further similar type convictions during the probation period and that de fendant successfully complies with all of the conditions of probation including paying fines and costs as orde red.” (Emphasis added.) There is ahandwritten note stating that $300 of the fine is suspended on the condition that there are “no other dog violations.” {¶110} After reviewing the record, we find that the trial court did not sentence appellant to inactive probation during the sentencing hear ing. The trial court made no mention of probation — either active monitoring or inactive — during the sentencing hearing, much less impose a sentence of inactive probation. {¶111} Although the trial court’s se ntencing judgment entry re ferences the “conditions of probation,” neither proba tion nor any conditions thereof were discussed or imposed in open court. The only “condition” disc ussed during the sentencing hear ing — that appellant was not charged with any dog offenses in the next y ear — pertained to the suspension of $300 of the $500 fine, not a sentence of probation. {¶112} We further find that a sentence of in active probation cannot be implied from the trial court’s conditionally suspe nded fine. Nor can a sentence of inactive probation be implied from the trial court’s statement that it agreed withdefense counsel’s asser tion that appellant did not need to be monitored on probation. Defens e counsel did not argu e that a sentence of inactive probation would be more appropriate than a sentence of active probation — counsel opined that it was not necessary to sentence appellant to probation and that a fine, rather than probation, was an appr opriate sentence. {¶113} Based on the foregoing analysis, appella nt’s second assignment of error is sustained. The imposition of inactive probation is vacated.III. Conclusion {¶114} After thoroughly reviewing the record, we affirm appellant ’s conviction for cruelty to companion animals. Appellant failed to demonstrate that he was prejudicially misled as a result of the numerical errors in the comp laint and the trial cour t’s March 3, 2017 judgment entry regarding the subsection of the cruelty to companion animals offense with which appellant was charged and convicted. The trial court did not presume thatappellant was guilty based on the statements he made to Officer Svigel in the parking lot, and appellant’s Fifth Amendment privilege against self-incrimination was not violated. The trial court did not arbitrarily disregard Shaughnessy’s expert testimony. Appellant’s conviction is supported by sufficient evidence and is not against the manifest weight of the evidence. {¶115} The trial court erred by sent encing appellant to inactive probation in its sentencing judgment entry without imposing the probation sentence in open court during the sentencing hearing. Accordingly, the imposition of inactive probation is vacated. {¶116} The trial court’s March 3, 2017 judgment entry erroneously states that appellant was charged with violating B.C.O. 618.051(c)(2). Furthermore, the tr ial court’s April 3, 2017 sentencing judgment entry erroneously states that appellant was charged with “cruelty to animals” rather than cruelty to companion animals. Accordingly, we remand this case to the trial court for the limited purpose of issuing nunc pro tunc judgment entries that accurately reflect the offense with which appella nt was charged and convicted. {¶117} Judgment affirmed in part; vacated in part; and remanded for further proceedings consistent with this opinion. It is ordered that appellee and appe llant share the costs herein taxed.

The court finds there were reas onable grounds for this appeal.It is ordered that a special mandate issue outof this court directing the Shaker Heights Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

FRANK D. CELEBREZZE, JR., JUDGE EILEEN A. GALLAGHER, A.J., and TIM McCORMACK, J., CONCUR