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State v. Walker10/21/2005
first situation, an individual retains dominion over his property, even though he has to move the property from its current location; in the second situation, the individual is stripped completely of control. A stronger relationship should be required where the deprivation is great.
{ } Finally, even if forfeiture could have properly been applied, the trial court failed to provide Walker with due process. Trial courts do have broad discretion in fashioning probation requirements, but their discretion is not unlimited.
49 Ohio St.3d at 52.
{ } As we mentioned, the original condition under which Walker's sentence was suspended was that he not possess animals. This condition was then also suspended, contingent on Walker's continued "cooperation." When the trial court found that a bear had escaped confinement from Walker's premises, the court ordered Walker to remove the bears. The fact of an escape does not necessarily indicate that Walker failed to cooperate, and the trial court never held an evidentiary hearing on this issue. Furthermore, Walker did cooperate with the court order by removing the bears and placing them on the property of Todd Bell.
{ } Subsequently, a bear escaped confinement at Bell's premises. We do not know how the escape occurred, or why, or even if Walker had anything to do with it -- because there is no evidence in the record. Instead of holding a probation revocation hearing, and issuing appropriate orders after providing Walker with due process, the trial court held a number of "review" hearings, at which the court did little more than discuss its thoughts and opinions on matters that were outside the record.
{ } Various methods could have provided due process. As we said, the court could have tried to revoke Walker's probation. Another alternative might have been for the State to charge Walker with a crime based on the bears' escape from Bell's property, if the facts warranted such a charge. We express no opinion on what the proper charge might have been, but the statutory scheme governing other crimes may have provided a more sufficient connection to forfeiture of the bears. Again, we stress that Walker was not charged with, nor was he convicted of an "offense" concerning the bears.
{ } We note that some Ohio statutes do allow forfeiture of seized property. See, e.g., R.C. 2933.41 and R.C. 2933.43. In such situations, the State is required to file an application for forfeiture and various due process is accorded. We express no opinion on whether such a forfeiture in this case would be considered a civil remedy or an additional criminal punishment that is impermissible. Compare State v. Adams (1995), 105 Ohio App.3d 492, 501-502, 664 N.E.2d 588 (discussing double jeopardy and whether forfeiture statutes are civil or criminal).
{ } We also note that a Humane Society may obtain a possessory lien under R.C. 1311.48 for the care of animals. In this regard, R.C. 1311.48 states that " ny person who feeds or boards an animal under contract with the owner shall have a lien on such animal to secure payment for food and board furnished." In State v. Stevenson (Aug. 31, 1994), Wayne App. No. 2855-W, 1994 WL 466777, the court found, upon the defendant's motion for return of seized property, that the defendant had entered into an oral contract with the Humane Society. Id. at *3. Again, we express no opinion on whether such a procedure would apply in this case. See, also, e.g., R.C. 1717.13, which allows any person to take possession of an animal to protect the animal from neglect. This particular statute does require a showing of neglect prior to a lawful entry and seizure. Compare Zageris v. Whitehall (1991), 72 Ohi
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