However, the man would not have been charged at all if he had shot the dog, said Butler County Deputy Dog Warden Supervisor Kurt Merbs.
The man, Charles Miller, has been charged and the dog's owner has been cited after the dog was struck with a baseball bat while running loose in Miller's yard and later died.
>> MORE: Neighbors dispute reason dog was hit by baseball bat and later died [Journal-News]
The dog, a 9-month-old German shepherd named Ruger, was found on the neighbor's property bleeding and not moving, according to Butler County Sheriff's Office. Ruger was taken to an emergency veterinary clinic by its owner and was euthanized due to its condition and injuries.
The owner of Ruger, Skylar Foster, who recently moved into her dad’s home on Elk Creek, was cited in Middletown Municipal Court on Aug. 15 for failing to keep a dog physically restrained or secured.
The dog owners and Miller disagree on how the dog got out of its enclosure and into Miller's yard, as well as how many times Miller hit the dog with a bat.
Merbs said the charges were filed after both deputies and a deputy dog warden were called to the scene about 8 p.m. Monday and investigated. The charges were filed after consulting a Middletown Municipal Court prosecutor.
Merbs said Miller was charged with misdemeanor cruelty because of the number of times he allegedly hit the dog.
“You are allowed to protect yourself against a threatening animal on your property,” Merbs said. “(If he) pulled out a gun and shot and killed it, there would be no charges. And the owner would still get a citation.”
But Merbs said there were some things Miller said about the number of times he allegedly hit the dog that didn't seem correct.
“But when you hit a dog five to 10 times, the threat is gone, it is over. That rises to the level of cruelty,” Merbs said. “He was essentially hitting to dog while it was on the ground.”
Butler County Prosecutor Michael Gmoser said Wednesday afternoon that he has intervened in Miller’s case.
"I have asked the Middletown prosecutor to refile the charge as a felony," Gmoser said.
Gmoser said after further looking at the initial evidence, Miller’s actions rise to the level of “serious physical to this dog.”
A crowd gathered Tuesday afternoon showing support for the dog’s owners as the neighbors shared conflicting stories about why the dog was on Miller’s Elk Creek Road property and how many times he struck it with the bat.
The Foster family is promoting a GoFundMe page to raise $6,000 to go toward ending animal cruelty. In its first four hours, the fundraising page raised more than $1,000 with 57 donors.
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