Douglas Alan Wolff v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Nov 08 2017, 9:55 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Derick W. Steele Curtis T. Hill, Jr.
Raquet Vandenbosch & Steele Attorney General of Indiana
Kokomo, Indiana Tyler Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Douglas Alan Wolff, November 8, 2017
Appellant-Defendant, Court of Appeals Case No.
27A05-1704-CR-853
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Dana J.
Appellee-Plaintiff. Kenworthy, Judge
Trial Court Cause No.
27D02-1702-F6-94
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Douglas A. Wolff (Wolff), appeals the trial court’s Order
regarding the disposition of certain animals that were seized from Wolff’s
property and impounded in conjunction with charges of animal cruelty.
[2] We affirm.
ISSUE
[3] Wolff raises one issue on appeal, which we restate as follows: Whether the trial
court erred by granting authority to an animal shelter to determine the
disposition of Wolff’s impounded animals.
FACTS AND PROCEDURAL HISTORY
[4] In December of 2016, the Grant County Sheriff’s Department and Marion
Animal Care and Control responded to several complaints of animal neglect
and cruelty, including a deceased horse, on Wolff’s property located in Grant
County, Indiana. As a result of the ensuing investigation, on February 23,
2017, the State filed an Information, charging Wolff with Count I, obstruction
of justice, a Level 6 felony; Counts II and III, cruelty to an animal, Class A
misdemeanors; and Counts IV and V, intimidation, Class A misdemeanors.
That day, with authorization from the trial court, five horses, two mules, and
two miniature donkeys were impounded from Wolff’s property and were placed
with the Animal Protection Coalition, Inc.’s Indiana Horse Rescue in
Frankfort, Indiana. The trial court set bail in the amount of $20,000 cash,
which Wolff paid to be released from jail.
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[5] On February 27, 2017, the State filed a notice with the court, establishing the
costs of care associated with the nine impounded animals. The first month was
estimated to cost $3,815, with subsequent months estimated at $3,015. Wolff
never posted any bond intended for the care of the animals. On March 13,
2017, the State filed an Amended Motion to Determine Forfeiture/Disposition
of Animals, requesting the trial court “to issue an order terminating [Wolff’s]
rights in the animals and grant ownership of all [nine] animals to the Indiana
Horse Rescue for appropriate disposition.” (Appellant’s App. Vol. II, p. 30). In
its motion, the State noted concerns raised by the animals’ caretaker,
specifically “difficulty in managing these animals” due to aggression because
the horses had not been gelded. (Appellant’s App. Vol. II, p. 30). The Indiana
Horse Rescue desired to be granted possession of the animals in order to “have
the stallions gelded immediately.” (Appellant’s App. Vol. II, p. 30).
Alternatively, the State requested that if Wolff “seeks to have his posted bond
money be apportioned to cover the cost of care for these animals,” that the
court “release the bond money according to the cost schedule previously filed.”
(Appellant’s App. Vol. II, p. 30).
[6] On March 20, 2017, the trial court conducted a hearing and, the same day,
issued an Order on State’s Amended Motion to Determine
Forfeiture/Disposition of Animals. The trial court determined that “[t]here is
probable cause to believe that [Wolff] has violated . . . [Indiana Code section
35-46-3-7—i.e., cruelty to an animal].” (Appellant’s App. Vol. II, p. 32). The
trial court found that the animals had been “validly impounded,” and Wolff
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“has failed to take the necessary steps pursuant to [Indiana Code section] 35-46-
3-6(c) to avoid disposition of the animals. [Wolff] has posted no bond for this
purpose.” (Appellant’s App. Vol. II, p. 32). Accordingly, the trial court
ordered that the Indiana Horse Rescue “is authorized . . . to determine
disposition of all nine (9) animals impounded in this case.” (Appellant’s App.
Vol. II, p. 33). 1
[7] Wolff now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[8] Wolff’s claims on appeal center on the application of Indiana Code section 35-
46-3-6 regarding the impoundment of animals. To the extent that statutory
interpretation is required, our review is de novo. Day v. State, 57 N.E.3d 809,
811 (Ind. 2016). On appeal, “our primary goal is to fulfill the legislature’s
intent.” Id. at 812. The best evidence of legislative intent is the language of the
statute itself. Id. “If that language is clear and unambiguous, we simply apply
its plain and ordinary meaning, heeding both what it ‘does say’ and what it
‘does not say.’” Id. (quoting State v. Dugan, 793 N.E.2d 1034, 1036 (Ind. 2003)).
If a statute allows for more than one reasonable interpretation, it is ambiguous,
1
According to the chronological case summary, Wolff’s jury trial was scheduled for October 3, 2017. The
verdict is not part of the record.
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and we must look to the well-established rules of statutory interpretation to
fulfill the legislative intent. Id. at 813.
II. Disposition of Animals
[9] The statute governing the present appeal provides as follows:
****
(b) Any law enforcement officer or any other person having
authority to impound animals who has probable cause to believe
there has been a violation of this chapter . . . may take custody of
the animal involved.
(c) The owner of an animal that has been impounded under this
section may prevent disposition of the animal by an animal
shelter that is caring for the animal by posting, not later than ten
(10) days after the animal has been impounded, a bond with the
court in an amount sufficient to provide for the animal’s care and
keeping for at least thirty (30) days, beginning from the date the
animal was impounded. The owner may renew a bond by
posting a new bond, in an amount sufficient to provide for the
animal’s care and keeping for at least an additional thirty (30)
days, not later than ten (10) days after the expiration of the
period for which a previous bond was posted. If a bond expires
and is not renewed, the animal shelter may determine disposition
of the animal, subject to court order. If the owner of an animal
impounded under this section is convicted of an offense under
this chapter . . . , the owner shall reimburse the animal shelter for
the expense of the animal’s care and keeping. If the owner has
paid a bond under this subsection, the animal shelter may
euthanize an animal if a veterinarian determines that an animal
is suffering extreme pain.
(d) If the owner requests, the court having jurisdiction of criminal
charges filed under this chapter . . . shall hold a hearing to
determine whether probable cause exists to believe that a
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violation of this chapter . . . has occurred. If the court determines
that probable cause does not exist, the court shall order the
animal returned to its owner, and the return of any bond posted
by its owner.
(e) Whenever charges are filed under this chapter, the court shall
appoint the state veterinarian under IC 15-17-4-1 or the state
veterinarian’s designee to:
(1) investigate the condition of the animal and the
circumstances relating to the animal’s condition; and
(2) make a recommendation to the court under subsection (f)
regarding the confiscation of the animal.
(f) The state veterinarian or the state veterinarian’s designee who
is appointed under subsection (e) shall do the following:
(1) Make a recommendation to the court concerning whether
confiscation is necessary to protect the safety and well-being of
the animal.
(2) If confiscation is recommended under subdivision (1),
recommend a manner for handling the confiscation and
disposition of the animal that is in the best interests of the
animal. The state veterinarian or the state veterinarian’s designee
who submits a recommendation under this subsection shall
articulate to the court the reasons supporting the
recommendation.
(g) The court:
(1) shall give substantial weight to; and
(2) may enter an order based upon;
a recommendation submitted under subsection (f).
(h) If a person is convicted of an offense under this chapter . . . ,
the court may impose the following additional penalties against
the person:
(1) A requirement that the person pay the costs of caring for
an animal involved in the offenses that are incurred during a
period of impoundment authorized under subsection (b).
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(2) An order terminating or imposing conditions on the
person’s right to possession, title, custody, or care of:
(A) an animal that was involved in the offense; or
(B) any other animal in the custody or care of the person.
(i) If a person’s right to possession, title, custody, or care of an
animal is terminated under subsection (h), the court may:
(1) award the animal to a humane society or other
organization that has as its principal purpose the humane
treatment of animals; or
(2) order the disposition of the animal as recommended under
subsection (f).
Ind. Code § 35-46-3-6.
A. Bond
[10] Wolff first claims that the trial court erred in authorizing the Indiana Horse
Rescue to determine the disposition of his animals because he paid $20,000 in
bail. Indiana Code section 35-46-3-6(c) clearly states that the animal’s owner
“may prevent disposition of the animal” by, within ten days after
impoundment, posting a bond “in an amount sufficient to provide for the
animal’s care and keeping for at least thirty (30) days.” In this case, the State
filed notice to establish that the care of the animals at the Indiana Horse Rescue
would cost $3,815 for the first month and $3,015 per month thereafter.
[11] The trial court found that “[a]lthough [Wolff] has posted a bond to be released
from the Grant County Jail, use of those bond funds for care of the animals is
not a purpose authorized by the jail bond form signed by [Wolff], and [Wolff]
has not requested that the jail bond be used for care of the animals.”
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(Appellant’s App. Vol. II, p. 32). 2 In his appellate brief, Wolff seems to
acknowledge that he posted the $20,000 to secure his release from jail but
nevertheless insists that there is no reason why his bail payment could not be
credited toward the monthly expenses bond required by Indiana Code section
35-46-3-6(c). As support, Wolff points out that, by statute, cash bonds may be
used to pay restitution and expenses following a conviction.
[12] As the legislature has clearly set forth, the purpose of bail is to ensure that “a
person who has been arrested for the commission of an offense” appears “at the
appropriate legal proceeding”; it may also serve to ensure “another person’s
physical safety; or . . . the safety of the community.” I.C. § 35-33-8-1. On the
other hand, the stated purpose of posting a bond under Indiana Code section
35-46-3-6(c) is to provide for the care of impounded animals where there is
probable cause to support charges of animal neglect or cruelty. Thus, we find
that the legislature intended the bail and bond funds for separate and distinct
purposes, and there is no basis for the trial court to automatically apply the
money intended to secure Wolff’s presence in court to the cost of providing for
the impounded animals. Rather, it was incumbent upon Wolff to protect his
rights regarding the disposition of the animals pending trial, and he failed to do
so.
2
A copy of the jail bond form signed by Wolff is not included in the appellate record.
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[13] As to Wolff’s claim that bail bonds are regularly used to pay for court fees and
restitution, we note that Indiana Code section 35-33-8-3.2(a)(1) provides that
“[i]f the court requires the defendant to deposit cash . . . , the court may require
the defendant . . . to execute an agreement that allows the court to retain all or a
part of the cash to pay publicly paid costs of representation and fines, costs,
fees, and restitution that the court may order the defendant to pay if the
defendant is convicted.” In the present case, no agreement was ever executed
permitting Wolff’s bail money to be used for any purpose other than securing
his appearance. Moreover, as the trial court noted, Wolff never requested that
his bail money be applied to the animal care bond. Accordingly, we find no
error in the trial court’s determination that Wolff failed to comply with the
requirement that he post a bond in order to prevent disposition of the
impounded animals.
B. Appointment of State Veterinarian
[14] Wolff also claims that the trial court violated Wolff’s rights to due process by
failing to adhere to Indiana Code section 35-46-3-6(e). This provision stipulates
that, upon the filing of animal cruelty charges, the trial court “shall appoint the
state veterinarian . . . to . . . (1) investigate the condition of the animal and the
circumstances relating to the animal’s condition; and (2) make a
recommendation to the court . . . regarding the confiscation of the animal.”
I.C. § 35-46-3-6(e). See also I.C. § 35-46-3-6(f)-(g) (upon recommendation of
confiscation, requiring the state veterinarian to recommend the manner for
handling confiscation and disposition of the animals and requiring the trial
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court to give substantial weight to the state veterinarian’s recommendation).
Pursuant to the Fourteenth Amendment of the United States Constitution,
Wolff argues that he has been deprived of property without due process of law,
and under Article I, Section 21 of the Indiana Constitution, he claims that his
property has been taken without just compensation. Accordingly, based on the
trial court’s alleged non-compliance with the statute, Wolff insists that the
Indiana Horse Rescue should not have been permitted to confiscate and
determine the disposition of his animals.
[15] We first note that, at the time charges were filed against Wolff, the state
veterinarian was already involved in the matter. In its Order, the trial court
specifically stated that “Indiana State District 6 Field Veterinarian Melissa
Justice, DVM, has been involved in investigating the condition of the animals,
per Board of Animal Health Report filed as Exhibit 1 to the Affidavit of
Probable Cause in this case.” (Appellant’s App. Vol. II, p. 33). Yet, Wolff
insists that “the state veterinarian’s report contradicted the affidavit used for
probable cause” as the state veterinarian’s report, which was completed prior to
the filing of criminal charges, concluded that “[t]hree (3) of the [t]en (10) horses
belonging to . . . Wolff are considered to be below the normal Body Condition
Score for the Equine Species. Recommendations have been provided to the
owner of continued management and care of the animals under his care and
ownership.” (Appellant’s Br. p. 15; Appellant’s App. Vol. III, p. 9). Thus,
Wolff argues that the state veterinarian never recommended confiscation of the
animals.
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[16] A closer review of the state veterinarian report also indicates that while hay was
available for the animals at the time of inspection, “the amount of grass present
is minimal and is not considered to be a valuable source of nutrients at this
time.” (Appellant’s App. Vol. III, p. 9). It was reported in the probable cause
affidavit that concerned citizens/neighbors had been supplying the animals
with the hay. Thus, it is entirely possible that, in ordering the confiscation and
disposition of the animals, the trial court relied on the investigation of the state
veterinarian in conjunction with the other evidence establishing probable cause.
Nevertheless, notwithstanding whether the trial court properly appointed the
state veterinarian and relied on her recommendations, we find no merit in
Wolff’s argument because he has failed to preserve any due process argument
for appeal.
[17] In Miller v. State, 952 N.E.2d 292, 296 (Ind. Ct. App. 2011), a defendant
challenged his convictions for animal neglect based on the fact that the state
veterinarian had not conducted an investigation or made a recommendation
regarding the confiscation of his animals as required by Indiana Code section
35-46-3-6(e)-(f). However, the defendant did not raise the issue until he filed a
motion to vacate the verdict following the completion of his jury trial. Id. On
appeal, our court noted that “[t]imely objection should be made to any
improprieties that may occur during the course of a trial so that the trial judge
may be informed and may take effective action to remedy the error or grievance
complained of.” Id. Objections that are not timely raised before the trial court
are waived on appeal. Id. In Miller, we found that if the defendant had “raised
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the issue[] when charges were filed, as contemplated by [Indiana Code section
35-46-3-6(e))], the trial court could have appointed the state veterinarian . . . to
investigate, allowing the veterinarian to make a recommendation prior to the
trial.” Id.
[18] Here, based on the existence of probable cause of animal neglect or cruelty,
officers properly took custody of the animals. Thereafter, Wolff failed to post a
bond for their care to prevent disposition of the animals. Even though charges
were filed, Wolff never challenged the trial court’s appointment of, and reliance
on, the state veterinarian. Although Wolff’s jury trial had not been conducted
at the time he filed this appeal, we find that he had ample opportunity to raise
the matters of statutory non-compliance and lack of due process to the trial
court prior to this appeal and should have done so. As a result, we decline to
reverse the trial court’s Order regarding the animals’ disposition for failure to
pay a bond.
CONCLUSION
[19] Based on the foregoing, we conclude that the trial court properly authorized the
Indiana Horse Rescue to determine the disposition of Wolff’s impounded
animals based on Wolff’s failure to pay a bond for their care and keeping.
[20] Affirmed.
[21] Robb, J. and Pyle, J. concur
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