[Cite as State v. Arnold,

.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-16-13

v.

LESTER C. ARNOLD, OPINION

DEFENDANT-APPELLANT.

Appeal from Tiffin-Fostoria Municipal Court Trial Court No. 15-CRB-1506A

Judgment Affirmed

Date of Decision: January 30, 2017

APPEARANCES:

Gene P. Murray for Appellant

Charles R. Hall, Jr. for Appellee Case No. 13-16-13

PRESTON, P.J.

{¶1} Defendant-appellant, Lester C. Arnold (“Arnold”), appeals the April

28, 2016 judgment entry of conviction and sentence of the Tiffin-Fostoria Municipal

Court, resulting from Arnold’s plea of no contest to a charge of failing to confine a

dangerous dog in violation of R.C. 955.22(D)(1). On appeal, Arnold argues that his

conviction should be overturned and that the trial court abused its discretion in

ordering, as part of Arnold’s sentence, that the dog be destroyed. For the reasons

that follow, we affirm.

{¶2} This case stems from a September 14, 2015 incident in which a Belgian

Malinois dog—for which Arnold was caring while his son was away—escaped from

Arnold’s residence and mauled a mailman. (See Doc. No. 2). On October 13, 2015,

a complaint was filed charging Arnold with one count of failing to confine a

dangerous dog in violation of R.C. 955.22(D)(1), a misdemeanor of the third or

fourth degree.1 (Id.). Arnold pled not guilty to the charge. (Doc. No. 6).

{¶3} On April 28, 2016, the trial court held a change-of-plea and sentencing

hearing. (Apr. 28, 2016 Tr. at 2). At that hearing, Arnold entered a plea of no

contest to the charge in the complaint. (Id. at 3-4). The trial court accepted Arnold’s

plea of no contest and found him guilty of the offense. (Id. at 4, 8). The trial court

1 R.C. 955.99(G) provides, “Whoever commits * * * a violation of division (D) of [R.C. 955.22] is guilty of a misdemeanor of the fourth degree on a first offense and of a misdemeanor of the third degree on each subsequent offense.”

-2- Case No. 13-16-13

sentenced Arnold: to 60 days in jail with all 60 days conditionally suspended upon

compliance with the terms and conditions of probation; to two years on probation;

and to pay a fine of $250, plus court costs. (Id. at 12); (Doc. No. 17). The trial court

also ordered, among other things, that Arnold not own or harbor a dog while on

probation and that he submit “proof that dog has been put down by May 11, 2016.”

(Id.); (Id.). The trial court filed its judgment entry of conviction and sentence on

April 28, 2016. (Doc. No. 17).

{¶4} On May 11, 2016, Arnold filed a notice of appeal. (Doc. No. 20). He

raises one assignment of error for our review.

Assignment of Error

The trial court abused its discretion by improperly and prejudicially indicating, anecdoting [sic], and wrongly factoring in a self-interpreted directive to make a judgment that defendant- appellant Lester Arnold should and would be found guilty, and thereafter, said trial court prejudicially abused its discretion by imposing a sentencing order to “put down” the dog named Caeto, i.e. to kill the dog Caeto, a Belgian Malinois breed, unreasonably ignoring other viable options for the fate of the canine, thereby resulting in reversible error.

{¶5} It is unclear exactly what Arnold argues in his assignment of error. It

appears he argues that his conviction should be overturned because there was “no

evidence placed on the record” that the dog, Caeto, “was a vicious dog, prior to the

incident on September 14, 2015.” (Appellant’s Brief at 8). He also appears to

argue that the trial court abused its discretion when it “summarily ordered a death

-3- Case No. 13-16-13

sentence for the dog” despite the existence of “an available donee for the dog Caeto

for training and service to law enforcement.” (Id. at 10).

{¶6} As an initial matter, Arnold’s brief fails to conform with the Rules of

Appellate Procedure because in it, Arnold raises issues that are not specifically

assigned as error and briefed according to App.R. 16. See Headings v. Ranco, Inc.,

3d Dist. Union No. 14-04-33,

, citing Chem. Bank of New York

v. Neman,

(1990) and Toledo’s Great E. Shoppers City, Inc.

v. Abde’s Black Angus Steak House No. III, Inc.,

(1986).

Rather, Arnold appears to make multiple, unrelated arguments under a single

assignment of error, which is unclear and unartfully worded at that. Under App.R.

12(A), we are not required to address the issues that Arnold raises improperly.

Nevertheless, in the interest of justice, we will address the issues raised in the

“ARGUMENT” section of Arnold’s brief,2 although we will construe those issues

narrowly.

2 Under the “CONCLUSION” portion of Arnold’s brief, he appears to raise yet another issue. There, Arnold argues that the trial court “appeared to be inappropriately taking a victory lap” by referring to a prior, unrelated criminal case against Arnold’s son and that this “directional case-in-pointing by the victory lapping trial court” was improper. (Appellant’s Brief at 11-12). Under App.R. 16(A)(8), an “appellant shall include in its brief * * * [a] conclusion briefly stating the precise relief sought.” (Emphasis added.) The conclusion portion of a brief is not a place to raise issues not argued in the argument portion of the brief, and we decline to address Arnold’s argument. At any rate, it is unclear precisely what Arnold is arguing in his conclusion.

-4- Case No. 13-16-13

{¶7} We will first address Arnold’s argument that his conviction should be

overturned. Arnold was charged with violating R.C. 955.22(D)(1).3 That statute

provides:

(D) Except when a dangerous dog is lawfully engaged in hunting or

training for the purpose of hunting and is accompanied by the owner,

keeper, harborer, or handler of the dog, no owner, keeper, or harborer

of a dangerous dog shall fail to * * *:

(1) While that dog is on the premises of the owner, keeper, or

harborer, securely confine it at all times in a locked pen that has a top,

locked fenced yard, or other locked enclosure that has a top * * *.

R.C. 955.22(D)(1). “‘Dangerous dog’ means a dog that, without provocation, * * *

has done any of the following: (i) Caused injury, other than killing or serious injury,

to any person; (ii) Killed another dog; (iii) Been the subject of a third or subsequent

violation of [R.C. 955.22(C)].” R.C. 955.11(A)(1)(a), cited in R.C. 955.22(A) (“As

used in this section, ‘dangerous dog’ has the same meaning as in [R.C. 955.11].”).

3 Although the complaint charges Arnold with violating R.C. 955.22(D)(1), the complaint alleges that Arnold failed to confine a vicious dog. The complaint also alleges that the alleged violation of R.C. 955.22(D)(1) is a misdemeanor of the first degree. R.C. 955.22 was amended in 2012 by Sub.H.B. 14. See Lima v. Stepleton, 3d Dist. Allen No. 1-13-28,

(Preston, J., dissenting). By that amendment, all references to “vicious” dog were removed from that statute, and a violation of R.C. 955.22(D)(1) is either a fourth- degree or third-degree misdemeanor. See Sub.H.B. 14, 2012 Ohio Laws File 75. In the proceeding below and on appeal, the parties mistakenly refer to “vicious” dog rather than “dangerous” dog. Nevertheless, Arnold did not challenge in the trial court and does not challenge on appeal the contents of the complaint. Accordingly, we will not address that issue.

-5- Case No. 13-16-13

{¶8} R.C. 2937.07 governs a trial court’s actions relative to a plea of “no

contest” in a misdemeanor case. See State v. Smyers, 5th Dist. Muskingum No.

CT03-0039,

. That statute provides, in relevant part: “A plea

to a misdemeanor offense of ‘no contest’ or words of similar import shall constitute

an admission of the truth of the facts alleged in the complaint and that the judge or

magistrate may make a finding of guilty or not guilty from the explanation of the

circumstances of the offense.” Absent an explanation of the circumstances of the

offense, “a no contest plea may not be the basis for a finding of guilty.” City of

Cuyahoga Falls v. Bowers,

(1984). In this case, Arnold

appears to argue that absent from the record is an explanation that the dog “was a

vicious dog, prior to the incident on September 14, 2015.” (Appellant’s Brief at 8).

However, as we will explain below, Arnold waived the explanation-of-the-

circumstances requirement of R.C. 2937.07; therefore, it was not error for the trial

court to find Arnold guilty absent an explanation that the dog was dangerous as

defined in R.C. 955.11.

{¶9} “Although R.C. 2937.07 is mandatory, a defendant could invite

noncompliance with the statute or waive its requirements,” including the

explanation of the circumstances. State v. Vittorio, 7th Dist. Mahoning No. 09 MA

166,

, citing State v. Howell, 7th Dist. Mahoning No. 04 MA

31,

, citing City of N. Ridgeville v. Roth, 9th Dist. Lorain No.

-6- Case No. 13-16-13

03CA008396,

. Indeed, several Ohio courts “have held that

R.C. 2937.07 is waivable.” State v. Kern, 6th Dist. Lucas No. L-14-1173, 2015-

Ohio-1988, ¶ 12, citing City of Broadview Hts. v. Burrows, 8th Dist. Cuyahoga No.

79161,

, *2 (Oct. 4, 2001), Smyers at ¶ 12, State v. Ritch, 4th Dist.

Scioto No. 97CA2491,

(May 11, 1998), Roth at ¶ 12, and Howell

at ¶ 20.

{¶10} It does not appear that this court has addressed whether a defendant

may waive the requirements of R.C. 2937.07. We join the many other Ohio courts

that have held that the explanation-of-the-circumstances requirement of R.C.

2937.07 is waivable. See Kern at ¶ 12. We further hold that Arnold waived that

requirement in this case. At the change-of-plea and sentencing hearing, the

following exchange took place when Arnold, through counsel, entered his plea of

no contest:

[Trial Court]: And how does your client wish to plea plead

[sic], [Defense Counsel]?

[Defense Counsel]: No contest. Consent to a finding of guilt, Your

Honor. And there’s an actual basis.

[Trial Court]: And you understand, Mr. Arnold, by entering a

plea of no contest, you’re admitting the truth of

the facts as alleged on the face of the A charge.

-7- Case No. 13-16-13

[Defendant]: Yes, sir.

[Trial Court]: And you understand what the maximum

possible penalties are.

[Defendant]: Yes, sir.

[Trial Court]: At this time, I’ll accept your pleas [sic] of no

contest.

(Apr. 28, 2016 Tr. at 3-4).

{¶11} The Seventh District Court of Appeals in Vittorio held that the

defendant, “with counsel, entered a stipulation of guilt, thereby waiving the [R.C.

2937.07] requirement.” Vittorio at ¶ 22. Specifically, the defendant’s counsel said

at the change-of-plea hearing, “We would waive any defects in the preparation and

service of the amended complaint stipulate [sic] to a finding of guilt.” Id. at ¶ 21.

The Seventh District held that the defendant’s “‘stipulation to a finding of guilt’

constituted a waiver of the R.C. 2937.07 requirements.” Id. at ¶ 2. In this case, not

only did Arnold, through counsel, “[c]onsent to a finding of guilt,” he also stated,

“And there’s an actual basis.” (Apr. 28, 2016 Tr. at 3). Therefore, we hold that

Arnold waived the R.C. 2937.07 explanation-of-the-circumstances requirement in

this case.

{¶12} Even assuming Arnold did not waive the R.C. 2937.07 requirements,

we would not hold that his conviction should be reversed. See Ritch, 1998 WL

-8- Case No. 13-16-13

282970, at *4 (“Even assuming, arguendo, that such explanation was not properly

waived in these circumstances, we would still not be inclined to reverse the

judgment on this point.”). “The ‘invited error doctrine’ holds that a party will not

be permitted to take advantage of an error which he himself invited or induced the

court to make.” Id., citing State ex rel. O’Beirne v. Geauga Cty. Bd. of Elections,

(1997) and State ex rel. Bitter v. Missig,

(1995). As in Ritch, based on the discussion at the change-of-plea and

sentencing hearing, “[t]here is no doubt here that the trial court dispensed with

having the prosecution give an explanation of circumstances on the invitation of

appellant himself.” Id. at *4. That is, Arnold consented to a finding of guilt and

that there is “an actual basis.” (Apr. 28, 2016 Tr. at 3). “He cannot now take

advantage of the fact that his invitation was accepted and demand a reversal of the

judgment.” Ritch at *4. Accordingly, we uphold Arnold’s conviction for violating

955.22(D)(1).

{¶13} We next address Arnold’s argument that the trial court abused its

discretion when it ordered, as part of Arnold’s sentence, that the dog be destroyed.

“We review a trial court’s sentence on a misdemeanor violation under an abuse of

discretion standard.” State v. Nolan, 3d Dist. Marion No. 9-15-48,

, citing R.C. 2929.22 and State v. Frazier,

, 2004-Ohio-

4506, ¶ 15 (1st Dist.). An abuse of discretion implies that the trial court’s decision

-9- Case No. 13-16-13

was unreasonable, arbitrary, or unconscionable. State v. Adams,

(1980).

{¶14} Arnold does not argue that the trial court’s order that the dog be

destroyed is contrary to law. Indeed, R.C. 955.99 provides, in relevant part:

Whoever commits a violation of * * * [R.C. 955.22(D)] is guilty of a

misdemeanor of the fourth degree on a first offense and of a

misdemeanor of the third degree on each subsequent offense.

Additionally, the court may order the offender to personally supervise

the dangerous dog that the offender owns, keeps, or harbors, to cause

that dog to complete dog obedience training, or to do both, and the

court may order the offender to obtain liability insurance pursuant to

division (E) of section 955.22 of the Revised Code. The court, in the

alternative, may order the dangerous dog to be humanely destroyed

by a licensed veterinarian, the county dog warden, or the county

humane society at the owner’s expense.

(Emphasis added.) R.C. 955.99(G). Rather, Arnold argues that the trial court failed

to properly consider that the current keeper of the dog “has indicated that while in

his physical custody, the dog Caeto has not bitten anyone, nor attempted to bite

anyone, and that [the current keeper of the dog] has an available donee for the dog

Caeto for training and service to law enforcement.” (Appellant’s Brief at 10).

-10- Case No. 13-16-13

{¶15} “A trial court must consider the criteria of R.C. 2929.22 and the

principles of R.C. 2929.21 before imposing a misdemeanor sentence.” Nolan at ¶

12, citing State v. Crable, 7th Dist. Belmont No. 04 BE 17,

.

R.C. 2929.21 provides, in relevant part:

(A) A court that sentences an offender for a misdemeanor or minor

misdemeanor violation of any provision of the Revised Code * * *

shall be guided by the overriding purposes of misdemeanor

sentencing. The overriding purposes of misdemeanor sentencing are

to protect the public from future crime by the offender and others and

to punish the offender. To achieve those purposes, the sentencing

court shall consider the impact of the offense upon the victim and the

need for changing the offender’s behavior, rehabilitating the offender,

and making restitution to the victim of the offense, the public, or the

victim and the public.

(B) A sentence imposed for a misdemeanor or minor misdemeanor

violation of a Revised Code provision * * * shall be reasonably

calculated to achieve the two overriding purposes of misdemeanor

sentencing set forth in division (A) of this section, commensurate with

and not demeaning to the seriousness of the offender’s conduct and

-11- Case No. 13-16-13

its impact upon the victim, and consistent with sentences imposed for

similar offenses committed by similar offenders.

R.C. 2929.21.

{¶16} Generally, “a court that imposes a sentence under [R.C. Chapter 2929]

upon an offender for a misdemeanor or minor misdemeanor has discretion to

determine the most effective way to achieve the purposes and principles of

sentencing set forth in section 2929.21 of the Revised Code.” R.C. 2929.22(A).

R.C. 2929.22(B) “sets forth specific factors for the trial court to consider before

imposing a sentence, including the nature and circumstances of the offense, the

offender’s history of criminal conduct, the victim’s circumstances, and the

likelihood that the offender will commit future crimes.” Nolan,

.

{¶17} At the change-of-plea and sentencing hearing, counsel for the State

indicated that, as part of the sentence, the State was “asking the dog be ordered

either surrendered to law enforcement or destroyed.” (Apr. 28, 2016 Tr. at 3).

Arnold’s counsel later stated, “We just ask the Court to adopt the prosecutor’s

recommendation.” (Id. at 9). When the trial court asked about the dog’s

whereabouts, counsel for the State responded, “It’s at a kennel in Cleveland

awaiting transport to a law enforcement officer, but we wouldn’t do that until the

case was over.” (Id. at 5). Arnold’s counsel indicated, “Mr. Arnold doesn’t want

-12- Case No. 13-16-13

the dog back or any other dog in his home, Your Honor.” (Id. at 6). Arnold added,

“I checked to see about killing the dog. They want from 20 to $50 a day to keep a

dog.” (Id. at 7).

{¶18} Arnold’s counsel indicated at the hearing, “There were some serious

injuries.” (Id. at 4). The trial court apparently agreed, saying, “I’ve never seen

anything like this,” to which Arnold responded, “He’s a pretty athletic dog, Your

Honor.” (Id. at 5). Arnold’s counsel later added, “It’s terrible.” (Id. at 8). When

the trial court stated that it was “not sure that a dog that does this is going to be able

to be rehabilitated,” Arnold’s counsel responded, “I agree, Your Honor.” (Id. at 7).

Counsel for the State added, “Two months ago, the trainer at [the kennel] said he

thought it could be, but now it’s been two more months of being in a cage. I’m just

not sure.” (Id.).

{¶19} We reject for no fewer than three reasons Arnold’s argument that the

trial court abused its discretion in ordering that the dog be destroyed. First, Arnold

fails to suggest exactly why or how—in relation R.C. 2929.21 and 2929.22—the

trial court abused its discretion in supposedly not considering the circumstances

mentioned by Arnold. It is not this court’s duty to create an argument for an

appellant, and we will not do so in this case. See State v. Wendel, 3d Dist. Union

No. 14-13-23,

. Second, Arnold asked the trial court to adopt

the State’s sentencing recommendation, which included, as a potential alternative,

-13- Case No. 13-16-13

the dog being destroyed. By doing so, he waived any argument that the trial court

should not have included as part of the sentence that the dog be destroyed. See State

v. Parsons, 4th Dist. Athens No. 09CA4,

, ¶ 9-10. Finally, even

were we to address the merits of Arnold’s argument, the transcript of the hearing

indicates that Arnold and his counsel acknowledged the serious injuries sustained

by the victim and the need for Arnold to avoid any future dog ownership or handling.

The transcript also reveals that Arnold’s counsel concurred when the trial court

expressed doubt about whether the dog could be rehabilitated. For these reasons,

the trial court did not abuse its discretion by ordering that the dog be destroyed.

{¶20} Arnold’s assignment of error is overruled.

{¶21} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

WILLAMOWSKI, J., concurs in Judgment Only.

/jlr

ROGERS, J., dissenting.

{¶22} I must respectfully dissent from the opinion of the majority.

{¶23} I start with a consideration of the plea proceedings.

{¶24} R.C. 2937.07 provides, in relevant part:

-14- Case No. 13-16-13

A plea to a misdemeanor offense of “no contest” or words of similar import shall constitute an admission of the truth of the facts alleged in the complaint and that the judge or magistrate may make a finding of guilty or not guilty from the explanation of the circumstances of the offense.

{¶25} In Bowers, the Ohio Supreme Court addressed the juxtaposition

between this portion of R.C. 2937.07 and Crim.R. 11(B)(2), which provides that a

“plea of no contest is * * * an admission of the truth of the facts alleged in the * * *

complaint * * * .” Ultimately, the Court found that R.C. 2937.07 provided a

criminal defendant with the substantive right to require of the trial court an

explanation of circumstances following a plea of no contest to a misdemeanor.

Bowers,

.

{¶26} The majority chooses to adopt the view of the Seventh District Court

of Appeals that a stipulation to a finding of guilt is—by itself—sufficient to waive

the explanation of circumstances requirement. I do not believe this view is

consistent with Ohio law or the Ohio Supreme Court’s holding in Bowers.

{¶27} Other Ohio appellate courts seem to share this concern. For example,

in State v. Roland, the Second District Court of Appeals considered whether the

defendant’s “agreement to be found guilty” waived the explanation-of-

circumstances requirement. 2d Dist. Champaign No. 2005 CA 39,

. The court concluded that the defendant’s agreement “was no more than his

agreement to be found guilty in accordance with R.C. 2937.07 * * * .”

-15- Case No. 13-16-13

{¶28} Likewise, in City of Berea v. Moorer, the Eighth District Court of

Appeals considered whether defense counsel’s stipulation to the facts and a finding

of guilt waived the explanation-of-circumstances requirement. 8th Dist. Cuyahoga

No. 103293,

. The court concluded that it did not because “there

was no explicit waiver of the reading of the facts or explanation of circumstances.”

(Emphasis added.) Id. at ¶ 13.

{¶29} Again, in Roth, the Ninth District Court of Appeals concluded,

“Because [defense counsel] explicitly waived a reading of the facts, Mr. Roth cannot

now raise on appeal the argument that the court did not read the facts at the time

that he made his no contest plea.” (Emphasis added.)

.

{¶30} It is my opinion that R.C. 2937.07 requires the trial court to make a

determination of the sufficiency of the evidence from the facts in the record, and

that this requirement is a substantive right which cannot be waived, and if it could,

it certainly was not explicitly waived in this case.

{¶31} Further, there was considerable confusion as to the section of law

under which Arnold was charged as opposed to that with which he was convicted.

{¶32} R.C. 955.22 governs the confinement of dogs. It requires the owner,

keeper, harborer, or handler of a dog to “[k]eep the dog physically confined or

restrained upon the premises of the owner, keeper, or harborer by a leash, tether,

adequate fence, supervision, or secure enclosure to prevent escape” and “[k]eep the

-16- Case No. 13-16-13

dog under the reasonable control of some person.” R.C. 955.22(C)(1). The penalty

for violating this statute depends on whether the dog is a “nuisance dog,”

“dangerous dog,” or “vicious dog.” R.C. 955. 22(E)(1)-(H)(2).

{¶33} “Nuisance dog” means “* * * a dog that without provocation and while

off the premises of its owner, keeper, or harborer has chased or approached a person

in either a menacing fashion or an apparent attitude of attack or has attempted to

bite or otherwise endanger any person.” R.C. 955.11(A)(3)(a).

{¶34} “Dangerous dog” means “a dog that, without provocation, * * * has

[c]aused injury, other than killing or serious injury, to any person; [k]illed another

dog; [or] [b]een the subject of a third or subsequent violation of [R.C.

955.22(C)(1).]” R.C. 955.11(A)(1)(a).

{¶35} “Vicious dog” means “a dog that, without provocation * * *, has killed

or caused serious injury to any person.” R.C. 955.11(A)(6)(a).

{¶36} While R.C. 955.22(C)(1) applies to every owner, keeper, or harborer

of a dog, R.C. 955.22(D)(1) adds additional responsibilities for the owner, keeper,

or harborer of a dangerous dog. It requires the owner, keeper, or harborer to “[w]hile

that dog is on [their] premises * * * , securely confine it at all times in a locked pen

that has a top, locked fenced yard, or other locked enclosure that has a top.”4 R.C.

955.22(D)(1).

4 Under former R.C. 955.22(D)(1), these requirements also applied to vicious dogs.

-17- Case No. 13-16-13

{¶37} Under either statute, if the dog involved is vicious or dangerous, then

the court may order the dog to be humanely destroyed by a licensed veterinarian,

the county dog warden, or the county humane society at the owner's expense. R.C.

955.99(G), (H)(1).

{¶38} The complaint alleged that Arnold “did unlawfully and while being

the owner, keeper, or harborer of a vicious dog, did fail to securely confine the

vicious dog on premises, as required by statute.” (Emphasis added.) (Docket No.

2). Although the compliant referred to the dog as vicious, it cited R.C. 955.22(D)(1),

the dangerous dog statute.5 The judgment entry also referred to the offense as

“SECURE VIC DOG” but cited R.C. 955.22(D)(1). (Docket No. 17). Neither

document cited R.C. 955.22(C)(1) or 955.99(H)(1), the statutes pertaining to vicious

dogs.

{¶39} From the record, it is clear that neither defense counsel nor the

prosecutor recognized the difference between the designation as a dangerous dog or

vicious dog. The trial judge also referred to the dog as vicious although Arnold was

charged under the dangerous dog statute. Further, although citing R. C. 955.22

(D)(1) as the offense of which Arnold was being convicted, the trial court’s entry

again referred to a “vic” (vicious) dog. If the parties and the trial court were so

5 It is also worth noting that the complaint alleged that Arnold failed to “securely confine” the vicious dog, and this phrase is found only in the dangerous dog statute. (Docket No. 2).

-18- Case No. 13-16-13

confused as to the offense at issue, there certainly could be no finding as to the

sufficiency of the evidence. If for no other reason, this conviction must be reversed

due to the mutual mistake of the parties and the trial judge, as to the offense at issue.

{¶40} There is the further problem of whether the offense could properly be

brought under either statute. The statutes defining a “dangerous dog” and “vicious

dog” both are drafted in the past tense. I interpret that to mean that there must have

been a prior incident to put the owner, keeper, or harborer on notice or a prior

designation as a “dangerous dog” or a “vicious dog” before anyone could be charged

under the statutes at issue. How can one fail to confine a dangerous or vicious dog

if one is not aware that the dog meets that criteria? There is no evidence in this case

that the dog had been previously designated as a dangerous or vicious dog or that

the dog had previously caused injury to another. The fact that the Dog Warden only

served a notice of designation subsequent to and based on the incident leading to

Arnold’s charge certainly requires the conclusion that there had been no previous

designation.

{¶41} Additionally, the trial court’s sentencing entry included an order that

the court be provided with evidence that the dog had been “put down” by a certain

date. R.C. 955.99(G) and (H)(1) provide that upon conviction of either R.C.

955.22(C)(1) or (D)(1), the court may order the dog to be humanely destroyed by a

licensed veterinarian, the county dog warden, or the county humane society at the

-19- Case No. 13-16-13

owner’s expense. Here, the trial court failed to designate the responsibility of

destruction to any person or official, and I would find that order to be inadequate

and unenforceable. Further, the statute provides that the trial court should order the

expense of the destruction be the owner’s responsibility. Here, the trial court failed

to designate that responsibility, and since it was undisputed that Arnold was not the

owner but was only keeping the dog temporarily for his son, the trial court could

not order him to be responsible for the costs of destruction.

{¶42} Finally, the majority fails to note that the trial court committed plain

error in ordering Arnold to pay restitution to the kennel company. There are two

potential statutes governing this issue, neither of which are applicable in this case.

First, R.C. 2929.28 (A)(1) provides that a trial court may order an offender to pay

restitution “to the victim of the offender's crime or any survivor of the victim.” The

kennel company was not a victim of Arnold’s crime and therefore cannot receive

restitution under R.C. 2929.28(A)(1). Second, R.C. 955.99(G) allows for a

dangerous dog to be confined in a county pound, at the dog owner’s expense, until

the court makes a final determination as to the offender’s guilt or innocence.

However, this part of the statute only applies to violations of R.C. 955.22(C), and

Arnold was convicted under R.C. 955.22(D). Furthermore, the kennel where the

dog was being housed was not the county pound.

-20- Case No. 13-16-13

{¶43} Also, the trial court failed to determine or specify the amount of

restitution and therefore the order would be unenforceable even if proper. The

majority would probably contend that the order of restitution was included as a term

of probation and is therefore enforceable. However, I maintain that the trial court

can only order that which is authorized by statute.

{¶44} For all of the reasons listed above, I would vacate the orders of the

trial court and order that the charge be dismissed.

/jlr

-21-