[Cite as State v. Latocha , 2020-Ohio-2664.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SHELBY COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 17-19-22

        v.

GRAZYNA LATOCHA,                                          OPINION

        DEFENDANT-APPELLANT.




                          Appeal from Sidney Municipal Court
                            Trial Court No. 19CRB002211

                                      Judgment Affirmed

                              Date of Decision: April 27, 2020




APPEARANCES:

        Ralph A. Bauer for Appellant

        Jeffrey L. Amick for Appellee
Case No. 17-19-22


SHAW, P.J.

        {¶1} Defendant-appellant, Grazyna Latocha (“Latocha”), brings this appeal

from the October 22, 2019 judgment of the Sidney Municipal Court sentencing her

to ninety days in jail, with sixty suspended, and three years of probation after

Latocha was convicted in a jury trial of Prohibitions Concerning Companion

Animals in violation of R.C. 959.131(D)(1), a second degree misdemeanor, and

Prohibitions Concerning Companion Animals in violation of R.C. 959.131(D)(2), a

second degree misdemeanor.                On appeal Latocha contends that she received

ineffective assistance of trial counsel, that the trial court erred by ordering her to

forfeit all of her French Bulldogs pursuant to R.C. 959.99(E)(6)(a), and that there

was insufficient evidence presented to convict her.

                                             Background

        {¶2} On April 26, 2019, Latocha was charged with Prohibitions Concerning

Companion Animals in violation of R.C. 959.131(D)(1), a second degree

misdemeanor, and Prohibitions Concerning Companion Animals in violation of

R.C. 959.131(D)(2), a second degree misdemeanor.1 It was alleged that while

firefighters were responding to a fire at Latocha’s residence they found “eighteen

French Bulldogs confined in wire cages, that were stacked upon each other, in the



1
  The State styled the charges in the complaint as “Prohibitions concerning companion animals.” The statute
is also known as “Cruelty against companion animal.” We will use the styling of the complaint for purposes
of this appeal.

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basement[.] * * * Cages were found by firefighters to be wire[-]tied shut, with no

trays between the stacked [] cages, and what appeared to be a large amount of feces

on the bottom of the cages.” (Doc. No. 1). It was also alleged that Latocha failed

to provide necessary veterinary medical sustenance to one of the French Bulldogs

as it had a significant eye malady resulting in blindness in one eye. (Id.) Counsel

was appointed for Latocha and she entered pleas of not guilty to the charges.

       {¶3} Prior to trial, Latocha filed a motion to have the dogs released to her

care and a hearing was held on her motion. At the hearing, evidence was presented

that Latocha’s home was currently unlivable as it had a tarp over parts of the roof

and the electricity was not on. More importantly, testimony was presented that

Latocha’s home was not actually zoned to have a kennel, which was defined as four

or more dogs on a single property for any reason, and Latocha far exceeded the

number of dogs she could have in the city of Sidney. Considering this evidence and

the charges against Latocha related to her care of the dogs, the dogs’ poor living

conditions, and their health issues, Latocha’s motion was denied and the dogs

remained in the Dog Warden’s custody.

       {¶4} The case proceeded to a jury trial on August 29-30, 2019. After the

presentation of evidence, the jury found Latocha guilty of both charges against her.

Sentencing was set for a later date.




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        {¶5} Following Latocha’s convictions, the State filed a motion to have all

seventeen of Latocha’s French Bulldogs forfeited pursuant to R.C. 959.99(E)(6).2

Latocha filed a memorandum in response arguing that forfeiture of the dogs was

discretionary rather than mandatory. She claimed that in this case the dogs should

be returned to her.

        {¶6} On October 22, 2019, the matter proceeded to a sentencing hearing and

a hearing on the State’s forfeiture request. Ultimately the dogs were ordered

forfeited and Latocha was sentenced to serve a ninety day jail term on each count,

with sixty days suspended. The thirty day jail terms were ordered to be served

concurrently. Latocha was also placed on probation, which included the condition

that she not have any companion or breeding animal of any kind. A judgment entry

memorializing Latocha’s sentence was filed that same date. It is from this judgment

that Latocha appeals, asserting the following assignments of error for our review.

                            Assignment of Error No. 1
        Appellant’s trial counsel rendered ineffective assistance of
        counsel, in violation of her constitutional rights.

                            Assignment of Error No. 2
        Trial Court committed an abuse of discretion in ordering
        Appellant to forfeit her companion dogs and have no companion
        or breeding dogs in the future violating her right to due process
        and [it was an] unjustified taking of her property without
        compensation.



2
  Although eighteen French Bulldogs were removed from Latocha’s home, one died the first night it was in
the shelter.

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                        Assignment of Error No. 3
       The guilty finding was not supported by legally sufficient
       evidence.

       {¶7} We elect to address the assignments of error out of the order in which

they were raised.

                             Third Assignment of Error

       {¶8} In Latocha’s third assignment of error, she argues that there was

insufficient evidence presented to convict her.

                                Standard of Review

       {¶9} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259 (1991), paragraph two of the syllabus; State v. Pountney, 152 Ohio St.3d

474, 2018-Ohio-22, ¶ 19 (an appellate court’s function in a sufficiency review is not

to determine if the evidence should be believed). Accordingly, “[t]he relevant

inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.” Id., following Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781 (1979); State v. Ford, --- Ohio St.3d ---, 2019-Ohio-4539,

¶ 317. “In deciding if the evidence was sufficient, we neither resolve evidentiary


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conflicts nor assess the credibility of witnesses, as both are functions reserved for

the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571,

2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-

6267, ¶ 25 (1st Dist.); see also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-

Ohio-2380, ¶ 19, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997)

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”).

                                      Analysis

       {¶10} In this case Latocha was convicted of one count of Prohibitions

Concerning Companion Animals in violation of R.C. 959.131(D)(1), and one count

of Prohibitions Concerning Companion Animals in violation of R.C. 959.131(D)(2).

The requisite statutory provisions read as follows.

       (D) No person who confines or who is the custodian or caretaker
       of a companion animal shall negligently do any of the following:

       (1) Torture, torment, or commit an act of cruelty against the
       companion animal;

       (2) Deprive the companion animal of necessary sustenance or
       confine the companion animal without supplying it during the
       confinement with sufficient quantities of good, wholesome food
       and water if it can reasonably be expected that the companion
       animal would become sick or suffer in any other way as a result
       of or due to the deprivation or confinement[.]

       {¶11} In order to convict Latocha at trial, the State presented testimony that

members of the Sidney Fire Department responded to a fire at Latocha’s residence

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on the night of March 26, 2019. Latocha lived in a “very large old house, three

stories,” and the “whole roof [was] fully engulfed” in flames. (Tr. at 94-95).

       {¶12} One of the individuals who responded to the scene was

firefighter/paramedic Chance Guisinger who overheard Latocha state that there

were no people or pets in the house. Despite Latocha’s statement, it was protocol

for the fire department to conduct a search of the residence, so a team of three

firefighters went inside wearing full “turnout” gear, which consisted of a coat,

jacket, a hood, helmet, mask, and a breathing apparatus. Testimony indicated that

because the fire was primarily on the roof at that point, there was little-to-no smoke

on the first floor. Nothing of note was found on the first floor.

       {¶13} The three firefighters then made their way into the basement, which

was a large area splitting off through multiple doorways. Although there was little-

to-no smoke in the basement either, there was between six inches to a foot of water

because the water being used on the roof was coming down to rest there.

       {¶14} The firefighters went in different directions in the basement and nearly

simultaneously they all found dogs in kennels. Firefighter Quinten Pence located a

cage with four to six puppies in it, Firefighter Guisinger and Firefighter Bryan

Ramge each separately located kennels with dogs in them, some of those kennels

being stacked on top of others. There were empty kennels as well. The firefighters




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shouted their findings to each other, and thinking that they had perhaps twenty to

twenty-five dogs in the basement, they radioed for assistance in removing them.

       {¶15} Regarding what he observed, Firefighter Guisinger testified that the

“dog kennels [were] stacked on top of each other with dogs in them and wire-tied

shut.” (Tr. at 101). By stacked, Firefighter Guisinger clarified that at least “five or

six” were stacked two-high, so that one kennel was on top of another. (Id. at 102).

He testified that “normally dog kennels have a grate that you can put on underneath

to catch the feces. They were not – there was no grates and it looked as though the

dogs were standing just on grated wire and they would urinate or feces [sic] on top

of the other dogs [below].” (Id.) He added that some of the dogs were alone in

kennels while some were in doubles.

       {¶16} Firefighter Guisinger indicated that the kennels were wired shut so

tightly that he had to cut multiple times with a wire cutter to get them open. He

testified it looked like the dogs had been locked inside for months because there was

not a regular sliding locking mechanism utilized on the kennels; rather there were

wires holding the kennels shut that looped around multiple times.

       {¶17} Firefighter Guisinger testified that once the cages were open the dogs

were “filthy.” (Tr. at 103). He testified that some of the dogs looked “malnourished

but they – there was feces everywhere.” (Id. at 103-104). He strongly emphasized

that the dogs were covered in feces.


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       {¶18} Firefighter Guisinger testified that he could not smell the dogs while

he was handling them because he was wearing a breathing apparatus but once the

dogs had been moved and he took his mask off the firefighters’ turnout gear smelled

awful. He testified, “Some of the dogs were so gross, you didn’t want to even grab

them.” (Tr. at 104). In addition, Firefighter Guisinger testified that some of the

dogs had eye injuries and one had, “I believe it was a prolapsed uterus where the

female ends were sticking out of the back of the dog.” (Id.)

       {¶19} Firefighter Ramge also saw a dog with “red tissue coming from

coming from her vaginal area, and it was discharged down to her legs.” (Tr. at 165).

Further, he observed a dog with a bulging eye, and he saw scars on the dogs’ feet

that looked like they were white in color, thus appearing older. Firefighter Ramge

testified he saw puppies swimming on each other’s backs to stay above the water in

the basement.

       {¶20} After the firefighters cut the wires on the cages they moved the dogs

to a detached garage. Firefighter Pence and Firefighter Ramge both noted how

much feces they observed in the basement and in/around the cages. Firefighter

Ramge testified that he saw some feces stuck on the top of one of the cages from

the dog that was in the cage above, and he confirmed that his turnout gear smelled

awful from handling the dogs.




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       {¶21} Shelby County Sheriff’s Deputy/Dog Warden Kelli Ward responded

to the scene of the fire due to the presence of the dogs. She noted that the dogs

smelled like “fecal matter.” (Tr. at 193). She counted eighteen French Bulldogs

total—twelve were adults and six were puppies. Two of the females had visible

vaginal concerns and multiple males had visible eye problems. With the assistance

of another cruiser, the dogs were transported to a shelter where they were examined

by a veterinarian.

       {¶22} The veterinarian, Dr. Amanda Wagner, went to the shelter and

examined the dogs after they arrived. Because of the fire she was initially concerned

with smoke inhalation or potential fire burns. Dr. Wagner testified that she handled

each dog personally. She testified that the dogs were wet and that they smelled of

urine and feces such that she carried a towel to use between dogs.

       {¶23} Dr. Wagner testified that while there were no critical emergencies,

there were a number of issues with the dogs that needed to be addressed in the short

term. She noted that two dogs had vaginal hyperplasia and one of those two was

borderline for a full “vaginal prolapse,” which she defined.

       {¶24} Another dog had a progressive eye disease, though the eye was already

dead. Dr. Wagner testified that the eye condition would have taken at least a week

to get to that point, that the dog was likely experiencing pain and suffering before

the eye died, and that the condition would have been readily apparent to anyone


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Case No. 17-19-22


taking care of the dog. Dr. Wagner testified that it was possible that the eye could

have been saved with proper care, but at the very least proper care would have

lessened or eliminated the pain. A picture of the dog and it’s bulging eye was

introduced into evidence. The eye is extensively protruding into a cone-shape.

       {¶25} Dr. Wagner testified that of the twelve adult dogs she examined three

males and three females had significant enough maladies to be noted, and that was

an abnormal number of dogs with serious health issues. However, she testified that

the dogs did not look malnourished.        Dr. Wagner also testified that she had

vaccinated a litter of puppies for Latocha a little over a month before the fire, but

there is no indication she had ever dealt with the adult dogs.

       {¶26} Deputy Ward testified that the cruiser used to transport the dogs to the

shelter had to be extensively scrubbed because of how dirty the dogs were. She also

testified that all of the dogs needed baths the morning that they were brought into

the shelter. In addition, Deputy Ward noted that one of the puppies died after its

first night in the shelter. Deputy Ward spoke with Latocha at the scene and Latocha

said the dogs got veterinary care in Dayton but she could not recall the name of the

vet.

       {¶27} Latocha’s counsel challenged the testimony of the firefighters on the

basis that they had all written reports in the days after the incident but the reports

did not mention certain things such as how dirty the dogs were or how they smelled


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like feces. The firefighters all stated that they thought they were just writing reports

for the fire and that they did not include that much detail. Firefighter Guisinger

testified that he had been a firefighter/paramedic for nine years and had never been

called to testify in a case. He indicated he would be more thorough in the future

when writing his reports.

       {¶28} At the conclusion of the testimony, the jury found Latocha guilty of

both counts of Prohibitions Concerning Companion Animals.

       {¶29} On appeal, Latocha argues that there was insufficient evidence

presented to convict her.      Specifically, she contends that the evidence was

insufficient to support a finding that her dogs were deprived of necessary sustenance

or that the dogs experienced any pain or suffering. She argues that the testimony

from the witnesses indicated that the dogs were properly nourished, and the

testimony of Dr. Wagner only indicated that the dog with the dead eye could have

potentially improved with proper care.

       {¶30} In analyzing the evidence, we emphasize that a dog, regardless of

where it is kept, is defined as a companion animal pursuant to R.C. 959.131(A)(1).

In addition, the testimony unequivocally indicated that the house was Latocha’s and

that the dogs were hers. Thus these elements of Latocha’s convictions are readily

established here.




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       {¶31} As to Latocha’s conviction regarding R.C. 959.131(D)(1), the State

had to show that Latocha either tortured, tormented, or committed an act of cruelty

against a companion animal. “For purposes of R.C. 959.131, ‘[c]ruelty,’ ‘torture,’

and ‘torment’ mean ‘every act, omission, or neglect by which unnecessary or

unjustifiable pain or suffering is caused, permitted, or allowed to continue, when

there is a reasonable remedy or relief.’ ” State v. Southern, 2d Dist. Montgomery

No. 27932, 2018-Ohio-4886, ¶ 31, quoting R.C. 1717.01(B); R.C. 959.131(A)(2).

That definition “ ‘is broad enough to include situations where an animal suffers

needlessly because of the owner’s failure to seek critically necessary veterinary

care, if such care represents a reasonable remedy.’ ” Id. quoting State v. Dresbach,

122 Ohio App.3d 647, 651 (10th Dist. 1997). Failure to seek timely treatment for a

dog’s internal parasite infestation is one example that, if proven, would sustain a

cruelty to animals conviction. Id.

       {¶32} The testimony here indicated that some of the French Bulldogs were

in the bottom of stacked cages with urine and feces falling on them from dogs who

were in the stacked cage above. Further, the testimony indicated that the top cages

had no bottom so in addition to defecating on the dogs below, the dogs on top also

stood and laid on the wire.

       {¶33} Moreover, according to Dr. Wagner, half of the adult dogs had notable

maladies, some of them visibly distressing that would have been readily apparent to


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anyone handling the dogs. In addition, the dogs’ cages were tied so tightly that it

took multiple cuts from wire cutters to remove them. Any and all of these instances

could constitute unjustifiable suffering through acts or neglect on Latocha’s part.

Thus sufficient evidence was presented to convict Latocha of a violation of R.C.

959.131(D)(1).

       {¶34} In order to convict Latocha of a violation of R.C. 959.131(D)(2), the

State had to show that Latocha “Deprive[d] the companion animal of necessary

sustenance or confine[d] the companion animal without supplying it during the

confinement with sufficient quantities of good, wholesome food and water if it can

reasonably be expected that the companion animal would become sick or suffer in

any other way as a result of or due to the deprivation or confinement[.]”

       {¶35} The State alleged that Latocha’s failure to provide veterinary care to

the dog with the protruding-and-now-dead eye constituted failure to provide

necessary sustenance through proper veterinary care. Latocha counters that failure

to provide veterinary medical care did not constitute a failure to provide

“sustenance.” In addition, Latocha contends that Dr. Wagner’s testimony actually

supported an acquittal because Dr. Wagner only stated that the dog’s eye could have

possibly been saved with proper care.

       {¶36} Latocha’s argument ignores the testimony that the dog’s eye injury

would have been readily apparent to anyone caring for the dog, that treatment with


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antibiotics could have been beneficial, and that the dog would have been suffering

from pain that treatment could have alleviated had the dog received proper

veterinary care. In addition, “sustenance” was defined for the jury as meaning “the

supplying or being supplied with the necessaries of life.” (Tr. at 338-339). The jury

was able to determine for itself whether proper veterinary care should fall under the

category of being supplied with the necessaries for life. Based on the testimony,

when viewing it in the light most favorable to the State, we cannot find that there

was insufficient evidence presented to convict Latocha of a violation of R.C.

959.131(D)(2). See State v. Schuler, 12th Dist. Butler No. CA2018-04-067, 2019-

Ohio-1585, ¶¶ 30-35.

       {¶37} Lastly, Latocha summarily argues in her brief that her convictions

were against the manifest weight of the evidence without setting this issue out as its

own assignment of error. In reviewing whether a verdict was against the manifest

weight of the evidence, the appellate court sits as a “thirteenth juror” and examines

the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-

52. In doing so, this Court must review the entire record, weigh the evidence and

all of the reasonable inferences, consider the credibility of witnesses and determine

whether in resolving conflicts in the evidence, the factfinder “clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.” Id.


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       {¶38} Nevertheless, a reviewing court must allow the trier-of-fact

appropriate discretion on matters relating to the credibility of the witnesses. State

v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight

standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against

the conviction,’ should an appellate court overturn the trial court’s judgment.” State

v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter,

131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

       {¶39} After reviewing the evidence in this case, we cannot find that the

evidence weighs heavily against a conviction.         We also cannot find that the

factfinder clearly lost its way. While Latocha argues that the testimony regarding

feces being in the bottom of cages was questionable, the jury was entitled to find

the firefighters’ testimony credible. Therefore, Latocha’s third assignment of error

is overruled.

                              First Assignment of Error

       {¶40} In Latocha’s first assignment of error, she argues that she received

ineffective assistance of trial counsel.

                                 Standard of Review

       {¶41} “To establish a claim for ineffective assistance of counsel, a defendant

must show that counsel’s performance was deficient and that counsel’s deficient

performance prejudiced him.” State v. Hernandez, 3d Dist. Defiance Nos. 4–16–


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27, 28, 2017–Ohio–2797, ¶ 12, citing State v. Phillips, 3d Dist. Allen No. 1–15–43,

2016–Ohio–3105, ¶ 11, citing State v. Jackson, 107 Ohio St.3d 53, 2005–Ohio–

5981, ¶ 133, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure

to make either showing defeats a claim of ineffective assistance of counsel. State v.

Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697. (“[T]here is no

reason for a court deciding an ineffective assistance of counsel claim to approach

the inquiry in the same order or even to address both components of the inquiry if

the defendant makes an insufficient showing on one.”).

                                      Analysis

       {¶42} Notably, the beginning of Latocha’s “ineffective assistance” argument

seems to be taken from a different brief, as it references alibi witnesses for a murder

case. Nevertheless, after this detour into a seemingly different case, Latocha makes

arguments that are related to the case sub judice, specifically contending that her

trial counsel was ineffective for failing to submit any photographs showing the wire

cages in which the dogs were housed. She indicates that this “clearly” would have

indicated that the cages had pans in the bottoms of the cages and that they were

appropriate for housing the French Bulldogs.

       {¶43} Contrary to Latocha’s argument, we do not know if the pictures exist

at all as they are not included in the record. For this reason alone we could overrule

Latocha’s assignment of error as she cannot demonstrate error or prejudice.


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       {¶44} Notwithstanding this point, if Latocha is referring to photographs that

were presented at an earlier hearing wherein Latocha sought to have her dogs

returned prior to trial, those pictures are not dispositive in this matter as there is no

indication that the cages in the pictures were those that originally housed the dogs

in Latocha’s basement. The pictures Latocha introduced at the hearing on having

her dogs released showed cages she hoped to put some of the dogs in if they were

returned to her. In fact, even in those pictures, Latocha did not have enough cages

for all of the dogs.

       {¶45} Furthermore, the firefighters in this case specifically testified that the

cages in Latocha’s residence did not have pans on the bottom and that dogs were

getting covered in feces because of it. On the record before us we cannot find that

Latocha demonstrated either that her counsel was ineffective or that she was

prejudiced by any purported ineffectiveness. Therefore, her first assignment of error

is overruled.

                             Second Assignment of Error

       {¶46} In her second assignment of error, Latocha argues that the trial court

abused its discretion by ordering her to forfeit her French Bulldogs and have no

companion or breeding animals in the future.

                                       Analysis

       Pursuant to R.C. 959.99(E)(6)(a),


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        A court may order a person who is convicted of or pleads guilty
        to a violation of section 959.131 of the Revised Code to forfeit to
        an impounding agency, as defined in section 959.132 of the
        Revised Code, any or all of the companion animals in that
        person’s ownership or care. The court also may prohibit or place
        limitations on the person’s ability to own or care for any
        companion animals for a specified or indefinite period of time.

        {¶47} The preceding statute clearly and unambiguously provides a trial court

with authority to require a defendant convicted of a violation of R.C. 959.131 to

forfeit any or all companion animals, and the trial court also has the authority to

prohibit a person’s ability to own a companion animal for an indefinite period of

time.

        {¶48} In this case the trial court heard arguments regarding forfeiture of the

French Bulldogs, and ultimately ordered them to be forfeited. The trial court also

ordered Latocha not to have any companion or breeding animals in the future. The

trial court’s decision is supported here by multiple facts: 1) the animals were found

in appalling conditions; 2) when firefighters were at the scene, Latocha indicated

there were not even any animals in her burning residence, establishing Latocha’s

callous nature towards the dogs; and 3) many of the dogs had serious maladies.

Deputy Ward testified that the situation reminded her of a “puppy mill.”

        {¶49} Given these facts, we find that the trial court’s forfeiture order and the

order regarding Latocha not having companion or breeding animals is supported by

the evidence. Latocha’s claim that the forfeiture of all the French Bulldogs served


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no rational purpose is directly contradicted by the facts. Moreover, to the extent

that Latocha argues that she should only have to forfeit dogs that were directly

subject to violations of R.C. 959.131, this is clearly contradicted by R.C.

959.99(E)(6)(a), therefore this argument is not well-taken. For all these reasons,

Latocha’s second assignment of error is overruled.

                                   Conclusion

       {¶50} For the foregoing reasons Latocha’s assignments of error are overruled

and the judgment of the Sidney Municipal Court is affirmed.

                                                              Judgment Affirmed

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/jlr




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