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State v. Walker10/21/2005
ty to the lesser offense of abandoning animals, which was a minor misdemeanor, and his dogs were confiscated and turned over to the humane society. On appeal, the defendant claimed that because the dogs were worth more than $100, he was unfairly deprived of his property for a minor misdemeanor. In rejecting this claim, the court of appeals relied on R.C. 1717.09, which allows members of a county humane society to take charge of any animal that is cruelly treated. The members are also authorized to deliver possession of the animal to the humane society. 29 Ohio App.3d at 260. Accord State v Bartlett (May 2, 1997), Trumbull App. No. 96-T-5459, 1997 WL 269188 (noting that a trial court has authority under R.C. 1717.09 to order confiscation of any animal following a defendant's conviction of cruelty to animals).
{ } In contrast to the above situation, the present case did not involve cruelty to animals, and the humane society would not have been entitled to take charge of the bears under R.C. 1717.09.
{ } Similarly, in Sheets, the defendant was convicted of cruelty to animals. The statute involved in that case (R.C. 959.13) has a corresponding penalty statute (R.C. 959.99) that allows forfeiture of animals or livestock that are treated cruelly. 112 Ohio App.3d at 8. In pertinent part, R.C. 959.99 provides that:
{ } " hoever violates division (A) of section 959.13 of the Revised Code is guilty of a misdemeanor of the second degree. In addition, the court may order the offender to forfeit the animal or livestock and may provide for its disposition, including, but not limited to, the sale of the animal or livestock. If an animal or livestock is forfeited and sold pursuant to this division, the proceeds from the sale first shall be applied to pay the expenses incurred with regard to the care of the animal from the time it was taken from the custody of the former owner. The balance of the proceeds from the sale, if any, shall be paid to the former owner of the animal." R.C. 959.99(D).
{ } The defendant in Sheets did argue that divestiture of 110 animals, instead of only the ten animals for which he had been convicted, exceeded the divestiture power of R.C. 959.99(D). However, the court of appeals found that this condition was reasonably related to rehabilitating the offender, had some relationship to the crime for which he was convicted, and related to conduct that was criminal or was reasonably related to future criminality and served the statutory ends of probation. Id. See, also, State v. Kilburn (Mar. 3, 1998), Warren App. No. 96-CA-12-130, 1998 WL 142412 (after a defendant was found guilty of thirty-three counts of animal cruelty, the court ordered forfeiture of those animals, plus several additional animals that had been removed from the property).
{ } Again, the present case did not involve charges of cruelty to animals, and the forfeiture provisions in R.C. 959.99(D) did not apply. Instead, Walker was convicted of failing to confine a dog under R.C. 955.22(C). The applicable penalty statute is R.C. 955.99, which differs from the other penalty statutes, and does not mention forfeiture. Under R.C. 955.99(E)(1), persons who violate R.C. 955.22(C):
{ } "shall be fined not less than twenty-five dollars or more than one hundred dollars on a first offense, and on each subsequent offense shall be fined not less than seventy-five dollars or more than two hundred fifty dollars and may be imprisoned for not more than thirty days."
{ } Consistent with this statute, Walker was sentenced to thirty days imprisonment, as his offense was a subsequent offense. R.C. 955.99(E)(2) goes on to state that:
{ } "In addition to the penalti
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