730 Chickens, In re

• Decision Date: 09 August 1991
• Docket Number: No. 472,472
• Citation: 75 Ohio App.3d 476,599 N.E.2d 828
• Parties: In re 730 CHICKENS, Alleged Forfeited Property.
• Court: Ohio Court of Appeals

Page 476

75 Ohio App.3d 476

599 N.E.2d 828

In re 730 CHICKENS, Alleged Forfeited Property.

No. 472.

Court of Appeals of Ohio, Fourth District, Vinton County.

Decided Aug. 9, 1991.

John G. Gosling, Pros. Atty., McArthur, for appellee.

John P. Lavelle, Athens, for appellants.

J. Robert Andrews, Cincinnati, urging affirmance for amicus curiae, The Humane Soc. of U.S.

HARSHA, Judge.

This is an appeal from a judgment entered by the Vinton County Court which granted an application for forfeiture of seven hundred thirty chickens seized by the state of Ohio, appellee, pursuant to a search warrant and ordered the humane destruction of the chickens.

Appellants, Phillip Fleming and the Ohio Gamefowl Breeders Association ("OGBA"), who were never made parties to the forfeiture proceedings, assign the following errors:

"ASSIGNMENT OF ERROR I:

"The order of forfeiture issued by the Vinton County Court is contrary to law because the mandates of revised code Section 2933.41 pertaining to notice and service were not complied with."

"ASSIGNMENT OF ERROR II:

"The judgment of forfeiture should be reversed as it pertains to Phillip Fleming and members of Ohio Gamefowl Breeders Association because it amounts to a second criminal offense which the state failed to seek prior to sentencing."

On May 11, 1991, approximately seven hundred thirty chickens were seized pursuant to a search warrant as evidence of cockfighting, in violation of R.C. 959.15, and gambling, in violation of R.C. 2915.02. On May 13, 1991, a hearing was held in the Vinton County Court, and the trial court judge admonished the people in the courtroom as follows:

"What I assume that of those here today as spectators may have some interest in this, I think it would [sic ] appropriate to make a generalised [sic ] announcement to those of you in the court room. Here and now will be the time to set forth the claim with any property interest that you may have.

" * * *

"You should be aware that there is a possibility of additional criminal charges that may be filed out of this. If you wish to consult with your attorney about that, probably you should do so fortwith [sic ]. This is a civil proceeding, not a criminal proceeding today, and it is a question what to do with the property that had been seized under the Search Warrant. However, the allegation which the state makes that the property that is sought to be forfeited or be destroyed is contra-band [sic ]. If you claim an interest in contra-band [sic ] and if you fit within the meaing [sic ] of the statute, in other words putting a claim in the chickens, while in the process of a chicken fight, if you make that claim, you may [sic ] submitting yourself to possible and additional criminal charges, as well. With that I think we will recess for a few moments, and anyone that who [sic ] wants to assert a property interest in the chickens and feels that they are not subject to criminal liability may do so, given a few minutes to get the paper work put down, we will proceed after that."

After a brief recess, appellants' counsel entered an appearance and stated the following:

"Thank you, Your Honor for affording me the opportunity to speak on this question. As the Court is aware, I have been retained to represent one individual who was charged with a felony offense out of the weekend events, and that is Mr. Ray Johonson [sic ], the owner of the property in question. In addition to that, I have been retained to represent the Ohio Gamefowl Breeders Association. Many of the individual constituent members are present here in the court room. I am not individually representing any claim of property owners, but in the absence of an objection, I would like to make a statement on some of these affected parties [sic ] behalf."

Appellants' counsel then asserted that the notice of the forfeiture proceeding was improper and that some owners of the chickens did not have any knowledge that they were going to be used in an illegal activity. The trial court agreed with appellants' counsel that it was not illegal in itself to own one of the subject chickens, and again emphasized that it was "fair to warn people * * * that a chicken can be owned legally or illegally and depending on the circumstances of that particular individual--if you own it illegally and assert some claim for it * * * then you are letting yourself open for additional criminal charges."

Subsequently, appellee's counsel represented to the trial court that officers present at the cockfighting event held on May 11, 1991 notified everybody present that the chickens would be the subject of a forfeiture application and that anyone who had an interest in the chickens should state his claim to the officers. Appellee's counsel further stated as follows:

"Other than that, not very many people came forward and this left us then with a tremendous number of apparently unclaimed or ownerless birds, which is possible in a situation like this--when folks elect not to step forward and acknowledge the possible ownership of what could be construed criminal tools or evidence of a criminal activity. How someever [sic ] none of that would act to deny an opportunity to now come forward once again as I stated before, it would be the states [sic ] reception [sic ] that now is the time and I am here ready and I was before I attempted to address these fellows before we called the judge back in and you said no, you got a statement."

The trial court then asked whether any individual desired to set forth a claim in the chickens, and appellants' counsel responded as follows:

"Does anyone here want to come forth and claim the chickens, under the circumstances that were described earlier and recognize their interest, if you do I would recommend that you come forward and do that now? Your Honor, I am advised by the trustees and officers of the Ohio Gamefowl Breeders Assoication [sic ] that the individual owners of these chickens are all members of this group and they are asking me as the association attorney to make a claim on all of the chickens, on behalf of the association. I think with adadmisision [sic ] that were given here today and I commend the prosecution of [sic ] doing this. It has scared some of these people off from lawfully claiming what might well be legal property, and they have asked the association to make the plea in general for the chickens and the last thing that they want to see is the chickens destroyed. That is just as specific as I can be."

The trial court noted that it appeared that OGBA, a non-profit corporation, was asserting "some claim of ownership" and that an affidavit regarding the forfeiture should therefore be served on OGBA. The trial court then continued the forfeiture proceeding.

On May 14, 1991, in the related criminal proceeding, appellants' counsel entered a plea of no contest to charges of cockfighting in violation of R.C. 959.15 on behalf of sixty-nine individuals who are unspecified in the record before this court. The trial court orally sentenced these individuals by fining them $25 plus court costs. No journal entry of these sentences is contained in the record.

On May 15, 1991, Vinton County Sheriff Delno L. McClure filed a "VERIFIED APPLICATION FOR THE DISPOSITION OF FORFEITED/UNCLAIMED PROPERTY" in which he stated that: (1) the seven hundred thirty chickens were seized pursuant to a search warrant as evidence of cockfighting and gambling; (2) during the execution of the search warrant, everybody present was orally advised and issued a written notice to any individuals requesting further notice of a May 13, 1991 hearing regarding the disposition of the seized chickens; and (3) the chickens' violent propensity presented a severe security problem and continued care and preservation of the chickens was both difficult and expensive. Sheriff McClure's application requested that the chickens be declared unclaimed or forfeited property pursuant to R.C. 2933.41(D) and that they be "disposed of in a humane manner" pursuant to R.C. 2933.41(D)(8).

On May 15, 1991, the forfeiture proceeding continued and Ohio Department of Agriculture enforcement supervisor Steve Mowery testified that the confiscated chickens were of a violent nature and that they were used in a criminal activity, i.e., cockfighting, when seized. Mowery testified that if the court directed that the chickens be destroyed, his agency could supervise and insure a humane disposition. When appellants' counsel began cross-examining Mowery, the following exchange occurred:

"MR. GOSLING:

"I guess for purpose of record--I guess I am not sure of Mr. Lavelle's standing but I will probably object unless there has been some determination made of that.

"JUDGE BRAME:

"Q. Are you appearing on behalf of any particular individual or any organization Mr. Lavelle?

"ATTORNEY LAVELLE:

"A. Yes your honor. At this particular time I am appearing on behalf of the Ohio Gamefowl Breeders Association.

"JUDGE BRAME:

"Q. Is that organization making a claim to ownership or possession of these birds?

"ATTORNEY LAVELLE:

"A. Not at this time, no."

The trial court noted that even though OGBA was not entering a claim of ownership of the chickens, it would allow OGBA to proceed on an amicus curiae basis.

On May 16, 1991, the court below entered a judgment declaring that: (1) the chickens were unclaimed and duly forfeited pursuant to R.C. 2933.41; (2) alternatively, they constituted contraband pursuant to R.C. 2933.42 and were subject to disposition by R.C. 2933.43; and (3) since sale of the subject chickens would likely reintroduce the chickens into the scheme of cockfighting, the chickens should be humanely destroyed. Appellants filed a notice of appeal on the same day that judgment was entered as well as a motion for stay of the trial court judgment. In appellants' motion for stay, it was stated that Phillip Fleming and other members of the OGBA claimed ownership of the chickens and further stated...