State v. Wolfe , 2022 Ohio 2921 ( 2022 )

[Cite as State v. Wolfe, 2022-Ohio-2921.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, :
: Case No. 21CA5
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT
: ENTRY
WYATT WOLFE, :
: RELEASED: 08/17/2022
Defendant-Appellant. :
APPEARANCES:
Max Hersch, Assistant State Public Defender, Office of the Ohio Public Defender,
Columbus, Ohio, for Appellant.
Lisa A. Eliason, Athens City Law Director, and Tracy W. Meek, Athens City
Prosecutor, Athens, Ohio, for Appellee.
Wilkin, J.
{¶1} This is an appeal from an Athens County Municipal Court judgment
imposing a two-year community-control sanction after the jury convicted
appellant, Wyatt Wolfe, of cruelty to animals.1 Wolfe in a single assignment of
error challenges the trial court’s order granting the state’s request for the
forfeiture of the abused dog, Echo, to the Athens County dog shelter.
{¶2} Wolfe maintains the forfeiture order must be vacated because Echo
is property and thus, in order for the forfeiture to be valid, the state was required
to follow the procedures for the forfeiture of property in R.C. Chapter 2981. This
includes filing a forfeiture specification with the complaint and demonstrating by
1
The trial court referred to the sentence as probation, but pursuant to the statutory language in
R.C. 2929.25, community-control sanction is the appropriate term.
Athens App. No. 21CA5 2
clear and convincing evidence that forfeiture was proper. Further, Wolfe argues
the trier of fact was required to render the determination on whether forfeiture
was proper or not. In the case at bar, however, the trial court at sentencing
granted the state’s request for forfeiture which he claims was improper.
{¶3} We overrule Wolfe’s arguments and conclude that the trial court had
the authority to order Echo’s forfeiture pursuant to R.C. 959.99(D). Echo is the
subject of Wolfe’s cruelty and the property forfeiture provisions in R.C. Chapter
2981 are inapplicable. Further, the trial court did not abuse its discretion ordering
the forfeiture of Echo as a community-control condition. The forfeiture of Echo is
reasonably related to rehabilitate Wolfe, to the crime committed by Wolfe, and to
future criminality by preventing Wolfe from physically abusing Echo.
FACTS AND PROCEDURAL BACKGROUND
{¶4} On January 19, 2021, Torri Brown, a preschool teacher with Athens
Head Start, was at Wolfe’s residence to aid his daughter with her school work.
Ms. Brown has been going to the residence once a week to aid Wolfe’s daughter
and is familiar with the family dog, Echo, a one year and nine-month-old female
Staffordshire Terrier. Normally when Wolfe is present, Echo is in the crate and
that day was no exception. Midway during the lesson, Ms. Brown and Wolfe
realized that Echo “pooped” in the crate. This is when Wolfe
became very angry, jumped up, he went and got a bag, something
to clean up the poop in the cage. He was calling the dog a stupid
fucking bitch for pooping in the cage. He cleaned it up, went back to
the kitchen to discard it. He came back and he was very angry and
said I’m gonna fucking kill you, kicked the cage, opened the cage,
pulled her out by the fur on the back of her neck and struck her
several times in the head and neck area with h[is] fist, and then he
kicked her a few times and shoved her back into the cage, and the
Athens App. No. 21CA5 3
dog immediately re[t]reated back in the far back corner head down
cowering.
{¶5} Ms. Brown felt uncomfortable and intimidated with Wolfe punching
Echo with a closed fist and kicking her in the torso but continued with the lesson.
She felt the violence was more than necessary which prompted Ms. Brown to
report the incident to children services and the dog shelter.
{¶6} Deputy Ryan Gillette, a detective with Athens County Sheriff’s Office
assigned to the dog shelter, received the report and met with Ms. Brown to
question her regarding the incident. He then went to Wolfe’s residence. Wolfe
admitted to Deputy Gillette to physically punishing the dog but denied abusing
Echo. Deputy Gillette seized Echo and on the way to his vehicle, in the yard of
the apartment complex, Echo “pooped at least a minimum of three times in three
different areas and urinated several times before putting it in the vehicle.”
{¶7} Echo was examined by veterinarian Marshall Aanestad at the Athens
Veterinary Clinic. The medical exam did not reveal evidence of abuse, but Dr.
Aanestad opined that abuse is still possible even with lack of physical evidence.
{¶8} Based on Ms. Brown’s report of the incident, a complaint of cruelty to
animals in violation of R.C. 959.13(A)(1) was filed against Wolfe. The matter
proceeded to a jury trial with Ms. Brown, Deputy Gillette and Dr. Aanestad
testifying on behalf of the state. Wolfe did not present any evidence. The jury
returned a guilty verdict and the trial court proceeded to sentencing.
{¶9} At sentencing, the prosecutor indicated that the state’s “interest is in
the dog, and we request the dog be immediately forfeited to the Athens County
dog shelter permanently[.]” Wolfe, through his counsel, expressed his desire to
Athens App. No. 21CA5 4
have Echo returned to him. Wolfe’s counsel also argued for a suspended
sentence.
{¶10} The trial court granted the state’s request for the forfeiture of Echo
to the dog shelter and acquiesced to Wolfe’s petition for a suspended sentence.
The trial court imposed a 30-day jail sentence and $500 fine, both suspended on
the condition that Wolfe does not commit any further violation of the law for two
years. Further, the trial court ordered that Wolfe “not have any companion
animals during the period of probation.” The judgment of conviction entry is now
before us for review.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY ORDERING FORFEITURE
AFTER THE CITY FAILED TO FOLLOW THE PROCEDURES
REQUIRED BY REVISED CODE CHAPTER 2981.
{¶11} Wolfe asserts that Echo is property and for the forfeiture of property,
the procedures in R.C. Chapter 2981 must be followed. And in this case, Wolfe
claims the state failed to follow the procedures and give proper notice of the
forfeiture specification in the complaint per R.C. 2941.1417. The state also failed
to demonstrate by clear and convincing evidence that Echo is subject to forfeiture
pursuant to R.C. 2981.04(B). Wolfe additionally argues that pursuant to R.C.
2981.04(B), the jury was required to determine whether Echo was subject to
forfeiture, which did not occur here. Rather, the trial court included the forfeiture
in the sentence without any determination by the fact finder that Echo was
subject to forfeiture.
Athens App. No. 21CA5 5
{¶12} The state disagrees with Wolfe’s characterization of Echo as
property subject to forfeiture pursuant to R.C. Chapter 2981. The state maintains
Echo is not contraband, not proceeds through the commission of an offense, and
is not an instrumentality as defined in R.C. 2981.02(A). Echo is the victim of
Wolfe’s criminal assault, and forfeiture of animals is a reasonable term of
community-control sanction for a violation of cruelty to animals. Therefore, R.C.
Chapter 2981 does not apply in cases involving the forfeiture of animals.
{¶13} In response, Wolfe claims an animal is an instrumentality under
R.C. 2981.02(A)(1)(ii), because cruelty to animals cannot be committed without
the presence of the animal. According to Wolfe, “by its plain text, Chapter 2981
constrains R.C. 959.99(D),” and “if the legislature wished to exclude the forfeiture
provision of R.C. 959.99(D) from the sweep of Chapter 2981, it could have done
so expressly.”
ANALYSIS
{¶14} Wolfe was found guilty of committing cruelty to animals in violation
of R.C. 959.13(A)(1) that provides: “No person shall * * * unnecessarily or cruelly
beat” an animal. A violation of
division (A) of section 959.13 or section 959.21 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.
R.C. 959.99(D).
{¶15} Wolfe faced a maximum jail term of 90 days for his second-degree
misdemeanor offense. R.C. 2929.24(A)(2). The trial court imposed a 30-day jail-
Athens App. No. 21CA5 6
time sentence but suspended it and imposed a two-year community-control
sanction and included the following conditions:
The dog, Echo, shall be forfeited to the shelter. Defendant
shall pay the care fees of $780 with credit for the bond already posted
for that purpose. Defendant shall not have any companion animals
during the period of probation.
{¶16} In misdemeanor cases, a trial court has broad discretion in imposing
community-control conditions per R.C. 2929.27(C), and we therefore, “review the
trial court’s imposition of community control sanctions under an abuse of
discretion standard.” State v. Marcum, 4th Dist. Hocking Nos. 11CA8 and
11CA10, 2012-Ohio-572, ¶ 8. An abuse of discretion “is more than a mere error
of law or judgment; it implies that a trial court’s decision was unreasonable,
arbitrary or unconscionable.” State v. Martin, 151 Ohio St.3d 470, 2017-Ohio-
7556, 90 N.E.3d 857, ¶ 27, citing Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
{¶17} Wolfe, however, does not challenge the trial court’s forfeiture order
as being unreasonable, arbitrary or unconscionable. Rather, he maintains the
order should be vacated because Echo is personal property as defined in R.C.
955.03. By designating Echo as property, Wolfe argues Echo is an
instrumentality subject to forfeiture per R.C. 2981.02:
(A) (1) The following property is subject to forfeiture to the state or a
political subdivision under either the criminal or delinquency process
in section 2981.04 of the Revised Code or the civil process in
section 2981.05 of the Revised Code:
(c) An instrumentality that is used in or intended to be used in the
commission or facilitation of any of the following offenses when the
use or intended use, consistent with division (B) of this section, is
sufficient to warrant forfeiture under this chapter:
***
Athens App. No. 21CA5 7
(ii) A misdemeanor, when forfeiture is specifically authorized by a
section of the Revised Code or by a municipal ordinance that creates
the offense or sets forth its penalties[.]
R.C. 2981.02(A)(1)(c)(ii).
{¶18} Wolfe consequently asserts that Echo cannot be subject to forfeiture
unless “the complaint * * * charging the offense or municipal violation, * * *
contains a specification of the type described in section 2941.1417 of the
Revised Code[.]” See R.C. 2981.04(A)(1).
{¶19} “When interpreting statutes and their application, an appellate court
conducts a de novo review, without deference to the trial court’s determination.”
State v. Blanton, 2018-Ohio-1278, 110 N.E.3d 1, ¶ 50 (4th Dist.), citing State v.
Sufronko, 105 Ohio App.3d 506, 664 N.E.2d 596 (4th Dist.1995). In the matter at
bar, the trial court did not make a determination since Wolfe raises the issue for
the first time on appeal.
{¶20} Our review of the language in R.C. 2981.02(A)(1)(c)(ii) and caselaw,
leads us to but one conclusion: animals who are subject to cruelty are victims
and their forfeiture is proper as a sentence pursuant to R.C. 959.99(D). Wolfe
fails to cite to any case that has applied the property forfeiture provisions to
animals subject to cruelty. We, likewise, are unable to locate any case that
applied the definition of property as an instrumentality per R.C.
2981.02(A)(1)(c)(ii) to animals subject to abuse.2 The caselaw, however,
demonstrates that animals subject to cruelty are victims.
2
The cases we reviewed regarding the forfeiture of property as instrumentality demonstrate that
the property forfeited was used as a tool to commit the offense, a means to an end. Echo, on the
other hand, was not used as a tool to commit cruelty to animals; rather, Echo is the victim.
Athens App. No. 21CA5 8
While companion animals may be considered personal
property, R.C. 959.131(C) creates a chargeable offense against any
person who negligently commits an act of cruelty against a
companion animal. Accordingly, a companion animal is the victim of
a defendant’s conduct under R.C. 959.131, much as a person may
be the victim of a defendant’s conduct under R.C. 2903.13 (assault)
or R.C. 2919.25 (DV).
State v. Helmbright, 10th Dist. Franklin Nos. 11AP-1080 and 11AP-1081, 2013-
Ohio-1143, ¶ 36.
{¶21} The Tenth District went further in Helmbright and affirmed his
multiple convictions of cruelty against companion animals because “a separate
animus existed for each animal defendant harmed by his conduct. As such, the
trial court properly refused to merge defendant’s convictions under R.C.
2941.25.” Id. at ¶ 34. See also State v. Taylor, 11th Dist. Nos. 2018-L-011 to
2018-L-018, 2018-Ohio-4729, ¶ 19 (“It has been repeatedly held that each
companion animal is a separate victim for the purposes of merger.”)
{¶22} As the Helmbright and Taylor cases demonstrate, Echo is the victim
of Wolfe’s physical cruelty and is subject to forfeiture as a condition of community
control. Echo is not an instrumentality to cruelty to animals and we decline to
take the legal leap Wolfe is advocating for and hold otherwise. Although not
argued by Wolfe, we will nonetheless review the forfeiture of Echo and determine
whether it was an appropriate condition of community control. We conclude that
it is. The Supreme Court of Ohio held that when
determining whether a condition of probation is related to the
“interests of doing justice, rehabilitating the offender, and insuring his
good behavior,” courts should consider whether the condition (1) is
reasonably related to rehabilitating the offender, (2) has some
relationship to the crime of which the offender was convicted, and (3)
relates to conduct which is criminal or reasonably related to future
Athens App. No. 21CA5 9
criminality and serves the statutory ends of probation. (Citation
omitted.)
State v. Jones, 49 Ohio St.3d 51, 53, 550 N.E.2d 469 (1970).
{¶23} In State v. Sheets, we addressed a similar issue and held that the
forfeiture of an animal is an appropriate condition of a community-control
sanction:
The probationary conditions that appellant challenges
certainly have a relationship to the crime of which he was convicted.
Appellant failed to properly feed his horses and the probationary
conditions prohibit him from owning or possessing horses. The
conditions also relate to future criminality by preventing appellant
from being in a position, as owner or possessor of a horse, where he
would be responsible for the animal's feeding. Finally, the conditions
relate to rehabilitation by impliedly permitting appellant to own and
possess horses in the future. We therefore find that the trial court did
not abuse its discretion in its formulation of conditions for appellant’s
probation.
112 Ohio App.3d 1, 9, 677 N.E.2d 818 (4th Dist.1996).
{¶24} We disagree with Wolfe that we should not apply our prior holding in
Sheets since it was decided “a decade before Chapter 2981 was enacted.” Our
decision in Sheets affirming the forfeiture of animals as a condition of community-
control sanction is in accord with other recent appellate district court decisions.
In State v. Kidd, the Seventh District Court of Appeals held:
Several courts, including this court, have found that it is a
proper condition of probation to order a person convicted of cruelty
to animals to forfeit other animals and not just the animals that were
the subjects of the charges. See State v. Brooks, 9th Dist. No. 07 CA
0111-M, 2008-Ohio-3723 (trial court did not abuse its discretion in
ordering the forfeiture of the defendant’s dogs and cats when he had
been convicted of cruelty only to his horses); State v. Hale, 7th Dist.
No. 04-MO-14, 2005-Ohio-7080 (trial court did not abuse its
discretion when imposing the sanction of forfeiting all but one dog,
even though not all dogs were the subjects of the animal cruelty
charges since the conditions of probation were related to the
Athens App. No. 21CA5 10
underlying offense and served the ends of rehabilitation); State v.
Sheets, 112 Ohio App.3d 1, 677 N.E.2d 818 (4th Dist.1996) (trial
court did not abuse its discretion in ordering, as a condition of the
defendant’s probation, forfeiture of all 122 horses although the
defendant was only convicted of cruelty to ten of the horses).
Based on the above case law, the trial court acted within its discretion
in ordering appellant to forfeit the two German Shepherds and the
rabbit.
7th Dist. Belmont No. 11-BE-33, 2012-Ohio-6094, ¶ 13-14.
{¶25} More recently, the Eleventh District Court of Appeals reiterated the
trial court’s authority to order the forfeiture of an animal that was the subject of
cruelty:
Further, regarding the continued seizure of her dog,
Thompson was ultimately able to refute any abuse through the trial
and argue that the dog should be returned during sentencing. The
trial court found Thompson guilty of Cruelty to Animals and then, as
part of its sentence, placed her on one year of probation and ordered
that all of the animals seized be forfeited. This court has held that a
trial court “has the authority to order the confiscation of any animal
following a conviction for cruelty to animals.” State v. Bartlett, 11th
Dist. Trumbull No. 96-T-5459, 1997 WL 269188, *3 (May 2, 1997). *
* * Although Thompson did not have an initial hearing regarding the
seizure of her dog, the court ultimately removed it from her custody
and was entitled to do so under the law.
State v. Thompson, 11th Dist. Trumbull No. 2018-T-0081, 2019-Ohio-4835, ¶ 47.
{¶26} Wolfe punched and kicked Echo several times. The forfeiture of
Echo is related to Wolfe’s conduct and would prevent Wolfe from committing
physical cruelty against Echo in the future. Finally, the condition that Wolfe not
have companion animals during the two-year community-control sanction relates
to his rehabilitation that in the future he can possess them.3 We therefore find
3
Wolfe does not dispute the validity of this community-control condition on appeal.
Athens App. No. 21CA5 11
that the trial court did not abuse its discretion in ordering the forfeiture of Echo at
sentencing. Wolfe’s assignment of error is overruled.
CONCLUSION
{¶27} Having overruled Wolfe’s assignment of error, we affirm the trial
court’s judgment entry of conviction and sentence.
JUDGMENT AFFIRMED.
Athens App. No. 21CA5 12
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and appellant shall pay
the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Athens County Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS
COURT, it is temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to allow Appellant to
file with the Supreme Court of Ohio an application for a stay during the pendency
of proceedings in that court. If a stay is continued by this entry, it will terminate at
the earlier of the expiration of the 60-day period, or the failure of the Appellant to
file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to
expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Kristy S. Wilkin, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.