Doyle, Presiding Judge. Following a bench trial, Jason Keith Kelley was convicted of one count of cruelty to animals[1] and one count of aggravated cruelty to animals.[2] He appeals from the denial of his motion for new trial, contending that (1) the evidence was insufficient to support the verdict as to aggravated cruelty to animals; (2) the two convictions should have merged; and (3) the rule of lenity required that he be sentenced only for the lesser count of cruelty to animals. Discerning no error, we affirm. Construed in favor of the verdict,[3] the evidence shows that Kelley’s adult daughter found a dog on the side of the road, and he was underweight with his ribs showing. She took the dog home, where Kelley also lived, and fed the dog in an attempt to help it recover to a normal weight. After approximately two weeks, the dog had not gained much weight due to severe diarrhea, so Kelley’s daughter asked Kelley to help find a new home for the dog. Kelley later told her that he had found a new home with a couple whom they regularly saw in their apartment parking lot. Instead, Kelley had taken the dog to a dumpster in a small parking lot outside a nearby children’s daycare provider. Surveillance video of the parking lot shows that Kelley attempted to abandon the dog in the parking lot, but after the dog ran back toward the daughter’s residence, Kelley retrieved the dog, brought it back to the parking lot, and violently flung the dog by its leash into the dumpster. Kelley took a few steps away and then turned around, returning to the dumpster to close the lid before he left the area. Two days later, daycare employees discovered the dog alive in the dumpster. They called animal control officers who were able to safely remove the dog from the dumpster, provide veterinary services,[4] and ultimately establish a foster home for the dog. The foster owner described discovering, months later, that the dog had problems on a “slip leash,”[5] and a veterinarian who re-examined the dog at that time took an x-ray scan that revealed cartilage damage indicative of a past injury to the dog’s neck. The veterinarian could not determine the exact cause or timing of the damage. Meanwhile, animal control officers contacted local police who, with the help of Kelley’s daughter,[6] eventually identified Kelley as the person in the video throwing the dog into the dumpster. Based on these events, Kelley was charged with two counts of aggravated cruelty to animals: Count 1, based on violently picking the dog up by its leash and causing cartilage damage to the dog’s neck, and Count 2, based on trapping the dog in the dumpster by closing the lid. Following a bench trial, the court found Kelley guilty of the lesser included offense of cruelty to animals as to Count 1[7] and aggravated cruelty to animals as to Count 2. The trial court sentenced Kelly as a recidivist under OCGA § 17-10-7 (c)[8] to a total of five years confinement.[9] Kelley moved for a new trial, which the trial court denied, giving rise to this appeal. 1. Kelley contends that the Evidence was insufficient to support the guilty verdict as to aggravated cruelty to animals in Count 2. We disagree. We begin with the familiar standard of review. When an appellate court reviews the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.[10] Under OCGA § 16-12-4 (d) (3), “[a] person commits the offense of aggravated cruelty to animals when he or she . . . [m]aliciously tortures an animal by the infliction of or subjection to severe or prolonged physical pain.” Consistent with this, Count 2 of the indictment alleged that Kelley “did maliciously torture an animal, a brown male dog, by the infliction of prolonged physical pain and the subjection to prolonged physical pain, to wit: shutting the lid of a dumpster with the dog inside so that the dog could not get out and where the dog was trapped for several days without adequate food or water. . . .” On appeal, Kelley argues that the State failed to prove that his conduct of trapping the dog in the dumpster inflicted prolonged physical pain on the dog. But as noted above, our review of the evidence is deferential, and the statute requires only proof of “severe or prolonged physical pain.” Thus, proof of prolonged pain will suffice, even if not severe.[11] We decline to hold that a rational factfinder is required to find that trapping a starving dog in a dumpster for two days without food and water inflicts no physical pain whatsoever on the dog. The dog’s experience of pain must necessarily be proved circumstantially, and the trial judge, as fact finder, was entitled to draw reasonable inferences from the evidence.[12] It is undisputed that the dog was in the dumpster for days (not mere hours), so this supports a finding that the dog’s experience was “prolonged.” The daycare worker explained that due to the trash schedule, the dumpster was “pretty . . . much . . . empty,” and the treating veterinarian described the dog as “severely emaciated:” a “one or two” on the scale of one to nine rating a dog’s body condition.[13] The animal control officer who retrieved the dog described it as “very frightened,” and “it wanted out.” Based on this evidence, a rational trier of fact was authorized to find that Kelley caused the dog prolonged pain due to trapping an already emaciated dog in the dumpster for days without food or water.[14] Accordingly, this enumeration is without merit. 2. Kelley next contends that the trial court erred by failing to merge the conviction for cruelty to animals (Count 1) with the conviction for aggravated cruelty to animals (Count 2) under the “unit-of-prosecution” analysis. We review this issue de novo,[15] and based on the record before us, we discern no basis for reversal. At the sentencing hearing, after a brief argument regarding whether any sentences would be concurrent or consecutive to the three-year probation revocation triggered by these offenses, the trial court orally announced that it would “keep it simple. On Count 2, the controlling count, I’ll sentence him to five years as a recidivist under [OCGA §] 17-10-7 (c).” With respect to Count 1, the court announced that it would sentence Kelley to 12 months concurrent with the sentence for Count 2.[16] “Merger” refers generally to situations in which a defendant is prosecuted for and determined by trial or plea to be guilty of multiple criminal charges but then, as a matter of substantive double jeopardy law, can be punished — convicted and sentenced — for only one of those criminal charges. A unitofprosecution analysis, which requires careful interpretation of the criminal statute at issue to identify the unit of prosecution — the precise act or conduct that the legislature criminalized, should be applied to determine whether multiple counts of the same crime merge. By contrast, a required evidence analysis, which considers whether each crime requires proof of a fact which the other does not, applies to a merger analysis where the same act or transaction constitutes a violation of two distinct statutory provisions.[17] Here, Kelley argues that he was convicted of two counts of the same crime, so they should merge under the unit-of-prosecution analysis. But Kelley was not convicted of two counts of the same crime — cruelty to animals and aggravated cruelty to animals are different crimes.[18] Further, he was convicted of two different offenses based on two different acts: Count 1, cruelty to animals under OCGA § 16-12-4 (b) (causing pain by the unjustifiable act of violently flinging the dog in the air by its leash); and Count 2, aggravated cruelty to animals under OCGA § 16-12-4 (d) (3) (maliciously torturing the dog by inflicting prolonged physical pain of starvation by shutting the dumpster lid and trapping the dog in the dumpster). As noted above, the unit-of-prosecution analysis addresses multiple convictions of the same crime.[19] Therefore, Kelley’s argument that the trial court erred by failing to apply the unit-of-prosecution analysis is without merit. To the extent that Kelley’s argument implicates the required evidence analysis applicable to two convictions for the same criminal act,[20] the convictions do not merge because, as alleged in the indictment and shown by the evidence, they arise from different conduct.[21] The conviction for Count 1 was predicated on Kelley’s act of slinging the dog violently into the air by its leash, and Count 1 of the indictment made no mention of the dumpster. The conviction for Count 2 was predicated on the separate conduct, after Kelley began to walk away, of returning to the dumpster to trap the dog by closing the lid.[22] Despite the fact that the two counts arose from the single event of Kelley’s abandonment of the dog, each of the two different acts were separate and amounted to different offenses defined by the two statutory provisions in Counts 1 and 2.[23] Because the two convictions were predicated on two different acts that violated two different statutory provisions, Kelley’s sentence for both counts did not implicate the double jeopardy concerns addressed by the required evidence analysis.[24] 3. Kelley also argues that the trial court erred by failing to apply the rule of lenity to his convictions. This argument was rejected in Peacock v. State:[25] [T]he rule of lenity does not apply here. That rule applies when a statute, or statutes, establishes, or establish, different punishments for the same offense, and provides that the ambiguity is resolved in favor of the defendant, who will then receive the lesser punishment. The felony offense of aggravated cruelty to animals and the misdemeanor offense of cruelty to animals are different offenses. Although both offenses criminalize causing [pain to] an animal, the first requires that a person do so “maliciously [and in a prolonged way],” OCGA § 16124 (d) [(3)], and the second does not, see OCGA § 16124 (b) (1). When the two defined crimes do not address the same criminal conduct, there is no ambiguity created by different punishments being set forth for the same crime, and the rule of lenity does not apply.[26] Judgment affirmed. Hodges and Watkins, JJ., concur.
