State v. Leslie

[Cite as State v. Leslie, 2011-Ohio-2727.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
STATE OF OHIO, : Case No. 10CA17
: 10CA18
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
FRANK LESLIE, :
:
and : RELEASED 06/01/11
:
SHERRY LESLIE, :
:
Defendants-Appellants. :
______________________________________________________________________
APPEARANCES:
Kyle C. Henderson, Logan, Ohio, for appellants.
Laina Fetherolf-Jordan, Hocking County Prosecutor, and Jonah M. Saving, Hocking
County Assistant Prosecutor, Logan, Ohio, for appellee.
______________________________________________________________________
Harsha, P.J.
{¶1} After a bench trial, the court convicted both Frank and Sherry Leslie of
four counts of cruelty to animals. On appeal the Leslies contend the State failed to
prove that they recklessly deprived the animals of necessary sustenance or confined
the animals without supplying them with sufficient food and water. Specifically, they
point to their evidence that: 1.) the animals had improved from an even worse condition
under their care and 2.) they had certain foods for the animals. This argument
essentially contends their testimony was more credible than the State’s evidence.
However, we leave credibility determinations to the trier of fact. The trial court chose to
believe the State’s evidence that the animals were starving when the humane society
Hocking App. Nos. 10CA17 & 10CA18 2
took them, as demonstrated by the animals’ subsequent rapid weight gain upon regular
feeding and minimal medical attention. Thus we cannot say that the trial court clearly
lost its way and created a manifest miscarriage of justice, i.e. the convictions are not
against the manifest weight of the evidence. And this result necessarily includes a
finding that sufficient evidence supported the convictions.
{¶2} Mrs. Leslie argues that she received ineffective assistance of counsel.
She claims that she gave her attorney photographs and video footage of the animals
taken at the time she and her husband took possession of them and at various other
times before the humane society took the animals. According to Mrs. Leslie, this
evidence would have shown that the animals improved under the Leslies’ care, but her
attorney failed to introduce the photographs or video footage at trial. Because Mrs.
Leslie’s argument relies on evidence outside the record we cannot address it on direct
appeal; the proper vehicle to raise it is in a petition for post-conviction relief under R.C.
2953.21.
{¶3} Finally, the Leslies contend, and the State concedes, that the trial court
committed plain error when it ordered them to pay restitution to the Hocking County
Humane Society for the expenses it incurred in caring for the animals. Because the
expended funds do not constitute a victim’s economic loss under R.C. 2929.28(A)(1),
we reverse the restitution orders. Accordingly, we affirm in part, reverse in part, and
remand for further proceedings.
I. Facts
{¶4} After the Leslies were each charged with four counts of cruelty to animals
in violation of R.C. 959.13(A)(1), all second degree misdemeanors, their cases
Hocking App. Nos. 10CA17 & 10CA18 3
proceeded to a bench trial. There, Hocking County Humane Society Officer Sandra
Harvey testified that several people made complaints to the humane society about the
Leslies’ animals but most were reluctant to give statements because of the Leslies’
“supposedly * * * foul nature.” Harvey went to the Leslies’ property on November 8,
2009. She took some photographs the following day, and she secured a search warrant
the humane society executed on November 11. That day, the humane society seized a
horse, two female goats (does), and one male goat (a buck), which the Leslies admitted
they owned. Harvey testified that the Leslies kept the animals in an approximately one
acre fenced area with very short grass. Harvey testified that horses and goats need
longer grass to process food. Harvey admitted that she saw two bales of hay in the
area on November 9, but testified that on November 11, Mr. Leslie told her that the
couple did not have any hay, but they “were going to get some.” Harvey testified that
the water she saw for the animals was green and murky. She did not see hay in the
Leslies’ barn but did see “several bags” of grain, which the humane society concluded
contained an adequate percentage of protein.
{¶5} Harvey admitted that she had driven past the horse “from time to time”
before November 8 during her travels but never stopped her vehicle. However, Harvey
only saw the horse “kind [of] out of the corner [of] her eye.” According to Harvey, when
the humane society seized the animals, the horse was dehydrated and lethargic, its ribs
were visible, and it was “in pretty bad health” overall. Harvey was “quite surprised” at
how thin the goats were, though she acknowledged that the buck had “a little more flesh
to him” compared to the other goats. Harvey testified that aside from worming the
animals, the humane society did not give them any treatment beyond regular feeding,
Hocking App. Nos. 10CA17 & 10CA18 4
and the animals gained weight quickly.
{¶6} Veterinarian Dr. Kim Stevelt testified that he examined the animals on
November 12 and found that they were “very thin” had “poor hair coats” and “in general
had the appearances of animals that had been * * * starved.” The State introduced into
evidence a copy of Henneke’s nine-point scale for evaluating animal body fat levels.
Although this scale specifically refers to body fat levels in horses, Stevelt used the
number ranking system to rate all of the animals. A score of “1” means the animal is in
poor condition, i.e. it suffers from extreme emaciation. A score of “9” means the
animals is extremely fat. A score of “5” indicates a moderate weight. Stevelt gave all
the animals a “1” except for the buck, which he gave a “2,” explaining that male goats
seem to “be able to weather the storm better” than females.
{¶7} Stevelt testified that in his experience a malnourished horse would start to
recover in a “matter of few weeks” and would normally take six months to get back into
good health. Stevelt did not testify to a specific time frame it would take a malnourished
goat to reach good health. However, he examined photographs of the horse taken
approximately one, four, and sixth months after the humane society took the animal. He
also examined photographs of the goats taken approximately six weeks and four
months after the humane society took them. Stevelt testified that the photographs
showed the animals’ progressive weight gain. Within roughly six months the horse
appeared to be in “[v]ery good health.” And within roughly four months, the goats
appeared to be in good health. Stevelt testified that the photographs confirmed his
initial impression that the animals were starved and did not suffer from ill health or old
age. He explained that he did not medically treat the animals but all of them “very
Hocking App. Nos. 10CA17 & 10CA18 5
quickly gained their weight” under the humane society’s care. Stevelt acknowledged
that the mother doe would have lost weight after giving birth to the baby, but he testified
that alone would not have caused the mother’s emaciated condition. Stevelt testified
that in his opinion, before the humane society took the animals, the animals had been
deprived of necessary food or sustenance.
{¶8} Anna Ricketts, the Leslies’ neighbor, claimed that the Leslies had the
horse for at least a year before the humane society took it. Ricketts testified that she
thought the Leslies acquired all three goats a short time before they got the horse and
that all the goats were in “good condition” at that time. In addition, Ricketts testified that
when the Leslies received the horse, it looked “[p]retty similar” to how it did in November
2009 and may have actually been “just a little bit fatter” when the Leslies got it. Ricketts
described the Leslies’ field as “dead.” Ricketts called the humane society about the
animals since they “kept getting smaller and smaller and smaller and they weren’t being
taken care of.” She and her husband talked to the Leslies on “several occasions” and
told them they needed to feed the animals. The Leslies just screamed and used
profanities in response. Ricketts admitted that she had trouble with the Leslies in the
past and that the Leslies got a civil protection order to keep her husband from
contacting them.
{¶9} Leone Shastine, a friend of the Leslies, testified that the couple got the
horse around the end of May 2009, and at that time, the horse “was pretty starved,”
missing hair, and looked much worse than it did in one of the State’s photographs of the
horse from November 2009. After viewing photos of the mother doe and buck taken in
November 2009, Shastine claimed both goats were skinnier when the Leslies got them.
Hocking App. Nos. 10CA17 & 10CA18 6
Shastine claimed she saw the Leslies feed the horse before and saw her children feed
the horse and goats. Shastine also testified to seeing water out for the animals. In
Shastine’s opinion, the Leslies did not neglect the animals.
{¶10} Sherry Leslie testified that the couple acquired the mother doe and the
buck in April 2009, that they got the horse in May 2009, and that the mother doe had the
baby doe approximately two or three months after the couple acquired the mother. Mrs.
Leslie testified that the older goats were “muddy, skinny, dirty, and not very happy"
when the Leslies got them. According to Mrs. Leslie, the horse was in “horrible
condition.” She claimed he had “hoof prints on his body and open wounds on his
snout[.]”
{¶11} Mrs. Leslie claimed the couple provided food and water for all four animals
and they gained weight under the Leslies’ care. She testified that the couple kept the
animals in a two and a half acre pasture where the grass was taller than her, i.e. over
five feet high, before their animals ate it down. Mrs. Leslie claimed that at some point
the couple filled the entire barn with hay to prepare for winter, but the animals ate it all
so they were “getting ready to buy more.” She also claimed that she and her husband
had “hundreds and hundreds of pounds of grain” in the garage when the humane
society came. But according to Mrs. Leslie, the buck “always had a round droopy
tummy and his spine was always showing[,]” and he had “always been hippy[,]” which
she thought was normal. She claimed the buck was “strong as an ox” and dragged Mr.
Leslie around the yard “many times.” Mrs. Leslie testified that the mother doe “was
always more slender” and started to put on weight from October to November since the
baby had been weaned. Mrs. Leslie claimed she took the buck and mother doe to a
Hocking App. Nos. 10CA17 & 10CA18 7
trade show in October 2009, i.e. the month before the humane society took them away,
that they were the “two prettiest goats in the whole area,” and that they “won the prize of
compliments all throughout Lucasville, people would comment and look at them.”
{¶12} The trial court found the Leslies guilty on all counts. After sentencing the
Leslies filed their appeals, which we sua sponte consolidated.
II. Assignments of Error
{¶13} Mr. Leslie assigns three errors for our review:
1. The evidence is insufficient to support conviction of cruelty to animals.
2. The conviction on four counts of cruelty to animals was against the
manifest weight of evidence.
3. The trial court erred in imposing the payment of restitution to the
Hocking County Humane Society.
{¶14} Mrs. Leslie assigns four errors for our review:
1. The evidence is insufficient to support conviction of cruelty to animals.
2. The conviction on four counts of cruelty to animals was against the
manifest weight of evidence.
3. Trial counsel’s failure to submit exculpatory evidence provided to
counsel by defendant was ineffective assistance of trial counsel that
prejudiced defendant resulting in conviction.
4. The trial court erred in imposing the payment of restitution to the
Hocking County Humane Society.
III. Manifest Weight of the Evidence and
Sufficiency of the Evidence
{¶15} In their first and second assignments of error, the Leslies contend that
their convictions were against the manifest weight of the evidence and that insufficient
evidence exists to support their convictions. “When an appellate court concludes that
the weight of the evidence supports a defendant’s conviction, this conclusion
Hocking App. Nos. 10CA17 & 10CA18 8
necessarily includes a finding that sufficient evidence supports the conviction.” State v.
Puckett, --- N.E.2d ---, 2010-Ohio-6597, at ¶34. “Thus, a determination that [a]
conviction is supported by the weight of the evidence will also be dispositive of the issue
of sufficiency.” Id., quoting State v. Lombardi, Summit App. No. 22435, 2005-Ohio-
4942, at ¶9, in turn, quoting State v. Roberts (Sept. 17, 1997), Lorain App. No.
96CA006462, 1997 WL 600669.1 Therefore, we first consider whether the Leslies’
convictions were against the manifest weight of the evidence.
{¶16} “In determining whether a criminal conviction is against the manifest
weight of the evidence, an appellate court must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed.” State v. Brown, Athens App. No. 09CA3, 2009-Ohio-5390, at ¶24, citing
State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. A
reviewing court “may not reverse a conviction when there is substantial evidence upon
which the trial court could reasonably conclude that all elements of the offense have
been proven beyond a reasonable doubt.” State v. Johnson (1991), 58 Ohio St. 3d 40,
42, 567 N.E.2d 266, citing State v. Eskridge (1988), 38 Ohio St. 3d 56, 526 N.E.2d 304,
at paragraph two of the syllabus.
{¶17} We must still remember that the weight to be given evidence and the
credibility to be afforded testimony are issues to be determined by the trier of fact. State
v. Frazier, 73 Ohio St. 3d 323, 339, 1995-Ohio-235, 652 N.E.2d 1000, citing State v.
1
However, the inverse proposition is not always true, i.e. a conviction may pass a sufficiency analysis yet
still fail to satisfy a manifest weight of the evidence challenge. State v. Thompkins, 78 Ohio St. 3d 380,
387, 1997-Ohio-52, 678 N.E.2d 541.
Hocking App. Nos. 10CA17 & 10CA18 9
Grant, 67 Ohio St. 3d 465, 477, 1993-Ohio-171, 620 N.E.2d 50. The fact finder “is best
able to view the witnesses and observe their demeanor, gestures, and voice inflections,
and use these observations in weighing the credibility of the proffered testimony.”
Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (per
curiam). Thus, we will only interfere if the fact finder clearly lost its way and created a
manifest miscarriage of justice.
{¶18} R.C. 959.13(A)(1) provides: “No person shall * * * [t]orture an animal,
deprive one of necessary sustenance, unnecessarily or cruelly beat, needlessly mutilate
or kill, or impound or confine an animal without supplying it during such confinement
with a sufficient quantity of good wholesome food and water[.]” “The culpability required
for a R.C. 959.13(A)(1) violation is recklessness.” State v. Nichols, Hocking App. No.
07AP10, 2007-Ohio-1327, at ¶14, citing State v. Clark, Lake App. No. 2007-L-010,
2007-Ohio-5209, at ¶4. “A person acts recklessly when, with heedless indifference to
the consequences, he perversely disregards a known risk that his conduct is likely to
cause a certain result or is likely to be of a certain nature. A person is reckless with
respect to circumstances when, with heedless indifference to the consequences, he
perversely disregards a known risk that such circumstances are likely to exist.” R.C.
2901.22(C).
{¶19} The State did not contend that the Leslies tortured, beat, mutilated or
killed the animals in question. The alleged misconduct here relates to food, water and
shelter. The Leslies argue that the State failed to prove that they recklessly deprived
the animals of necessary sustenance or impounded or confined the animals without
supplying them with a sufficient quantity of good wholesome food and water. They
Hocking App. Nos. 10CA17 & 10CA18 10
claim that the testimony from Shastine and Mrs. Leslie shows the animals were in a
poor condition when the Leslies took possession of them and actually improved under
their care. The Leslies point to evidence of food and water they provided for the
animals. They argue that the pasture they confined the animals in had short green
grass and claim that the animals could survive in such a pasture. In addition, the
Leslies point to testimony from Harvey that there were two bales of hay and greenish
water in a trough for the animals when she came to their property. They also contend
that Harvey testified that the grain taken from their barn was of “sufficient quality.”
{¶20} As we explained in State v. Murphy, Ross App. No. 07CA2953, 2008-
Ohio-1744, at ¶31: “It is the trier of fact’s role to determine what evidence is the most
credible and convincing. The fact finder is charged with the duty of choosing between
two competing versions of events, both of which are plausible and have some factual
support. Our role is simply to insure the decision is based upon reason and fact. We
do not second guess a decision that has some basis in these two factors, even if we
might see matters differently.”
{¶21} Here, the trial court chose to believe the State’s version of events, and we
will not substitute our judgment for that of the finder of fact under these circumstances.
The evidence reasonably supports the conclusion that the Leslies recklessly deprived
the animals of necessary sustenance or confined the animals without supplying them
with a sufficient quantity of good wholesome food and water. Having heard the
testimony and having observed the demeanor of the witnesses, the trial court could
choose to believe all, part, or none of the testimony presented by any of these
Hocking App. Nos. 10CA17 & 10CA18 11
witnesses. State v. Parish, Washington App. Nos. 05CA14 & 05CA15, 2005-Ohio-
7109, at ¶15.
{¶22} The trial court discredited some of Ricketts’ testimony, such as her claim
that the Leslies had the animals for a year before the humane society took them and
that the pasture grass was dead. The court concluded the pasture had “rather short”
grass and also recognized evidence of other food the Leslies had, such as some grain
and hay. The court also noted that “there seems to be agreement to some degree that
the animals were not in particularly good shape” when the Leslies took them.
Nonetheless, the court concluded that the animals were starved when the humane
society took them. The court found the testimony of Stevelt and Harvey credible. Both
testified about the animals’ poor condition when the humane society seized them.
Stevelt testified that once he observed (via photographic evidence) the animals’ rapid
weight gain under the humane society’s care, which only involved worming and regular
feeding, his initial suspicion that the couple starved the animals was confirmed.
Moreover, the court was free to discredit Mrs. Leslie’s testimony that the couple fed
these emaciated animals an over five-foot high pasture of grass and barn full of hay.
{¶23} Thus, after reviewing the entire record, we cannot say that the trial court
lost its way or created a manifest miscarriage of justice when it found the Leslies guilty
of four counts of cruelty to animals. Therefore, we overrule the Leslies’ second
assignments of error. And because this conclusion necessarily includes a finding that
sufficient evidence supports the Leslies’ convictions, we also overrule their first
assignments of error. See Puckett, supra, at ¶34.
IV. Ineffective Assistance of Counsel
Hocking App. Nos. 10CA17 & 10CA18 12
{¶24} In her third assignment of error, Mrs. Leslie contends that her trial counsel
rendered ineffective assistance. To prevail on a claim of ineffective assistance of
counsel, an appellant must show that: 1.) his counsel’s performance was deficient, and
2.) the deficient performance prejudiced his defense so as to deprive him of a fair trial.
State v. Drummond, 111 Ohio St. 3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, at ¶205,
citing Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674. To establish deficient performance, an appellant must show that trial counsel’s
performance fell below an objective level of reasonable representation. State v.
Conway, 109 Ohio St. 3d 412, 2006-Ohio-2815, 848 N.E.2d 810, at ¶95. To establish
prejudice, an appellant must show a reasonable probability exists that, but for the
alleged errors, the result of the proceeding would have been different. Id. The
appellant has the burden of proof on the issue of counsel’s ineffectiveness because a
properly licensed attorney is presumed competent. State v. Gondor, 112 Ohio St. 3d
377, 2006-Ohio-6679, 860 N.E.2d 77, at ¶62.
{¶25} Mrs. Leslie argues that the “crux” of her defense was that she and her
husband rescued the animals when they were in very poor condition and that the
animals had in fact improved under their care. She claims that she and Mr. Leslie took
photographs and video footage of the animals when they received them and on various
occasions afterwards, and this evidence supported her defense. Mrs. Leslie contends
she gave this evidence to her attorney, but her attorney failed to offer it at trial. Mrs.
Leslie also appears to complain that her attorney failed to forward the evidence to her
husband’s attorney.
Hocking App. Nos. 10CA17 & 10CA18 13
{¶26} As proof of the existence of this evidence, Mrs. Leslie points to some of
her testimony at trial in which she mentioned having photographs of the goats from
October 2009 and asked the prosecutor if he looked at the video she provided.
However, the record does not contain these alleged photographs or video footage, let
alone any evidence that Mrs. Leslie in fact gave these items to her attorney. Because
Mrs. Leslie’s claim depends upon evidence outside the record, it cannot be adjudicated
on direct appeal, and the proper vehicle to raise it is in a petition for post-conviction
relief under R.C. 2953.21. State v. Cooperrider (1983), 4 Ohio St. 3d 226, 228, 448
N.E.2d 452 (per curiam). Accordingly, we overrule Mrs. Leslie’s third assignment of
error.
V. Restitution Orders
{¶27} In Mr. Leslie’s third assignment of error and Mrs. Leslie’s fourth
assignment of error, the couple contends that the trial court erred when it ordered them
to pay restitution to the Hocking County Humane Society. Because the Leslies failed to
object to the restitution order at the trial level, they have waived all but plain error.
“Plain errors or defects affecting substantial rights may be noticed although they were
not brought to the attention of the court.” Crim.R. 52(B). “A silent defendant has the
burden to satisfy the plain-error rule[,] and a reviewing court may consult the whole
record when considering the effect of any error on substantial rights.” State v. Davis,
Highland App. No. 06CA21, 2007-Ohio-3944, at ¶22, citing United States v. Vonn
(2002), 535 U.S. 55, 59, 122 S. Ct. 1043, 152 L. Ed. 2d 90.
{¶28} For a reviewing court to find plain error: 1.) there must be an error, i.e., “a
deviation from a legal rule”; 2.) the error must be plain, i.e., “an ‘obvious’ defect in the
Hocking App. Nos. 10CA17 & 10CA18 14
trial proceedings”; and 3.) the error must have affected “substantial rights,” i.e., it must
have affected the outcome of the proceedings. State v. Barnes, 94 Ohio St. 3d 21, 27,
2002-Ohio-68, 759 N.E.2d 1240. Furthermore, the Supreme Court of Ohio has
admonished courts that notice of plain error under Crim.R. 52(B) is to be taken “with the
utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” Id., quoting State v. Long (1978), 53 Ohio St. 2d 91, 372 N.E.2d
804, at paragraph three of the syllabus.
{¶29} R.C. 2929.28(A)(1) provides:
(A) In addition to imposing court costs pursuant to section 2947.23 of the
Revised Code, the court imposing a sentence upon an offender for a
misdemeanor * * * may sentence the offender to any financial sanction or
combination of financial sanctions authorized under this section. If the
court in its discretion imposes one or more financial sanctions, the
financial sanctions that may be imposed pursuant to this section include,
but are not limited to, the following:
(1) Unless the misdemeanor offense is a minor misdemeanor or could be
disposed of by the traffic violations bureau serving the court under Traffic
Rule 13, restitution by the offender to the victim of the offender’s crime or
any survivor of the victim, in an amount based on the victim’s economic
loss. * * * If the court requires restitution, the court shall order that the
restitution be made to the victim in open court or to the adult probation
department that serves the jurisdiction or the clerk of the court on behalf of
the victim.
If the court imposes restitution, the court shall determine the amount of
restitution to be paid by the offender. If the court imposes restitution, the
court may base the amount of restitution it orders on an amount
recommended by the victim, the offender, a presentence investigation
report, estimates or receipts indicating the cost of repairing or replacing
property, and other information, provided that the amount the court orders
as restitution shall not exceed the amount of the economic loss suffered
by the victim as a direct and proximate result of the commission of the
offense. If the court decides to impose restitution, the court shall hold an
evidentiary hearing on restitution if the offender, victim, or survivor
disputes the amount of restitution. * * *
{¶30} The Leslies argues that under the circumstances in this case, the costs
Hocking App. Nos. 10CA17 & 10CA18 15
the humane society incurred in caring for the animals do not constitute “property
damage” for which restitution could be ordered. They cite State v. Bybee (1999), 134
Ohio App. 3d 395, 731 N.E.2d 232 and State v. Hileman (1998), 125 Ohio App. 3d 526,
708 N.E.2d 1078 in support of their argument. The State concedes that the Leslies
cited “current” case law for this assignment of error which “does not support the
restitution ordered in the case.” The State does not present any authority in support of
the restitution order but encourages us to consider the humane society’s “function as a
charitable organization in ruling on whether restitution was proper.”
{¶31} We agree that the restitution order in this case was improper but for a
different reason than the Leslies submit. The Bybee and Hileman courts interpreted
former R.C. 2929.21(E), which stated: “The court may require a person who is
convicted of or pleads guilty to a misdemeanor to make restitution for all or part of the
property damage that is caused by the offense * * *.” The current statute, R.C.
2929.28(A)(1), does not contain specific language limiting restitution to “property
damage” but instead refers to restitution to victims for their “economic loss.”
{¶32} Although the humane society certainly suffered an economic loss by
providing care to the Leslies’ animals, it is not a “victim” of the Leslies’ crimes under
R.C. 2929.28(A)(1). In previous decisions construing R.C. 2929.18(A)(1), the provision
for restitution in felony cases, which is similar to R.C. 2929.28(A)(1), we explained that a
“victim” is “generally defined as the person who was ‘the object’ of the crime-e.g. the
victim of the robbery is the person who was robbed.” State v. Frazier, Pickaway App.
No. 10CA15, 2011-Ohio-1137, at ¶18, quoting State v. Samuels, Washington App. No.
03CA8, 2003-Ohio-6106, at ¶5. For example, we have held that a law enforcement
Hocking App. Nos. 10CA17 & 10CA18 16
agency is not a “victim” under R.C. 2929.18(A)(1) when it voluntarily expends its own
funds to pursue a drug buy through an informant. Id., citing Samuels at ¶5, ¶10. Thus,
the spent funds cannot constitute a “victim’s economic loss” under the statute. Id. And
we have found that a trial court committed plain error when it ordered a defendant to
pay restitution for such expenditures because the restitution was not authorized by
statute. Id., citing Samuels at ¶9.
{¶33} The humane society does not constitute a victim, i.e. the object, of the
crime of cruelty to animals under R.C. 2929.28(A)(1). Therefore, we conclude the
orders of restitution to the humane society amount to plain error. Accordingly, we
sustain Mr. Leslie’s third assignment of error and Mrs. Leslie’s fourth assignment of
error, reverse the restitution orders, and remand for further proceedings. This decision
renders moot the Leslies’ additional arguments that the amount of the restitution orders
was excessive.
{¶34} Interestingly, the Revised Code contains provisions that provide financial
assistance for humane societies in cases such as this. R.C. 959.13(C) provides: “All
fines collected for violations of [R.C. 959.13] shall be paid to the society or association
for the prevention of cruelty to animals, if there be such in the county, township, or
municipal corporation where such violation occurred.” The Hocking County Humane
Society may qualify as such an organization and be entitled to the fines collected from
the Leslies. Moreover, R.C. 959.99(D) provides that when a person violates R.C.
959.13(A), as the Leslies did, 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
Hocking App. Nos. 10CA17 & 10CA18 17
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.” (Emphasis added). Here, the trial court ordered the
Leslies to forfeit the animals. The trial court did not specifically provide for their
disposition, but it could have ordered the sale of the animals, which would have helped
the humane society recoup some or all of its expenditures.
{¶35} Accordingly we reverse the order of restitution and remand for imposition
of an appropriate order.
JUDGMENT AFFIRMED IN PART,
REVERSED IN PART,
AND CAUSE REMANDED.
Hocking App. Nos. 10CA17 & 10CA18 18
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN
PART and that the CAUSE IS REMANDED. Appellants and Appellee shall split 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 Hocking
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 sixty 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
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five 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 sixty 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. Exceptions.
Abele, J. & Kline, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
William H. Harsha, Presiding 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.