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State v. Walker10/21/2005
d in confiscating the bears without due process of law in violation of the Fifth and Fourteenth Amendments to the United States Constitution.
{ } In opposing these assignments of error, the State makes several main points. First, the State argues that the bears cannot be the subject of an in rem criminal forfeiture because they were not the "offender;" instead, Walker's failure to confine the bears when he was on probation for two similar offenses constitutes the "offense" in this case. The State also contends in connection with the fifth assignment of error that using the bears in violation of Walker's probation terms made the bears "contraband" that the court was entitled to seize under R.C. 2933.41-43. And finally, the State argues that Walker's due process rights were not violated by the State's failure to seek forfeiture of the bears. The State's claim in this regard is that Walker was not sentenced regarding the bears. The State likens the situation to a defendant's posting of bond, and subsequent forfeiture when the bond conditions are not met.
{ } In our opinion, the State's arguments are contradictory and confusing. The State's difficulty in clearly articulating a position may stem from the trial judge's failure to comply with rudimentary due process requirements. As we mentioned, the trial judge never held any type of evidentiary hearing after ordering Walker to remove the bears from his property. Instead, the judge merely held various"review" hearings, at which she made statements about events that happened outside court, and about which no testimony or evidence was presented. The judge also did not give Walker an opportunity to examine witnesses or to present his own evidence. Then, after making her own observations of "fact," the judge issued decisions about what would be done with the bears.
{ } There is no doubt that animals may be taken from an individual, when those animals are the subject of a criminal offense. For example, in Bybee, the SPCA confiscated one hundred eighty-eight dogs that were badly neglected, and then sold the dogs after the defendant was convicted of cruelty to animals. 134 Ohio App.3d at 397-98. A court may even order, as a condition of probation, that a defendant divest himself or herself of animals that are not the subject of the charge. See State v. Sheets (1996), 112 Ohio App.3d 1, 677 N.E.2d 818.
{ } In Sheets, the defendant pled no contest to charges of cruelty to nine horses, and, as a condition of probation, the court ordered that he divest himself of all the horses that he owned (about 122 horses). The Fourth District Court of Appeals upheld this condition because it was reasonably related to rehabilitation of the offender, had some relationship to the crime for which the offender was convicted, and related to conduct that was criminal and serves the statutory ends of probation. 112 Ohio App.3d at 823.
{ } Consistent with these cases, we concluded in our prior opinion that the order requiring Walker to remove the bears from his property was reasonably related to his conviction for failure to confine a dog. See State v. Walker, Greene App. No. 2004-CA-16, 2004-Ohio-7252, at . Therefore, there was no problem with the removal order. What does pose a problem are the orders the court issued thereafter.
{ } Our research indicates that cases allowing forfeiture of animals involve a common thread, i.e., a connection to statutes authorizing seizure or forfeiture. For example, in City of Eastlake v. Kosec (1985), 29 Ohio App.3d 259, 504 N.E.2d 1180, the defendant was charged with cruelty to animals after ten dogs that he owned were found suffering from malnutrition and dehydration. The defendant pled guil
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