[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-Ohio4942, 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-Ohio7109, 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.