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.




Court of Appeals of Indiana | Memorandum Decision 27A05-1704-CR-853 | November 8, 2017              Page 1 of 12
                               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.
      Court of Appeals of Indiana | Memorandum Decision 27A05-1704-CR-853 | November 8, 2017   Page 2 of 12
[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


      Court of Appeals of Indiana | Memorandum Decision 27A05-1704-CR-853 | November 8, 2017   Page 3 of 12
      “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.

      Court of Appeals of Indiana | Memorandum Decision 27A05-1704-CR-853 | November 8, 2017        Page 4 of 12
      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

      Court of Appeals of Indiana | Memorandum Decision 27A05-1704-CR-853 | November 8, 2017   Page 5 of 12
        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).

Court of Appeals of Indiana | Memorandum Decision 27A05-1704-CR-853 | November 8, 2017   Page 6 of 12
                  (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.”


       Court of Appeals of Indiana | Memorandum Decision 27A05-1704-CR-853 | November 8, 2017   Page 7 of 12
       (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.


       Court of Appeals of Indiana | Memorandum Decision 27A05-1704-CR-853 | November 8, 2017      Page 8 of 12
[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


       Court of Appeals of Indiana | Memorandum Decision 27A05-1704-CR-853 | November 8, 2017   Page 9 of 12
       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.


       Court of Appeals of Indiana | Memorandum Decision 27A05-1704-CR-853 | November 8, 2017   Page 10 of 12
[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


       Court of Appeals of Indiana | Memorandum Decision 27A05-1704-CR-853 | November 8, 2017   Page 11 of 12
       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




       Court of Appeals of Indiana | Memorandum Decision 27A05-1704-CR-853 | November 8, 2017   Page 12 of 12
