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State v. Walker10/21/2005
{ } This matter is before us on the appeal of David Walker from a trial court decision ordering Walker to pay $32,127 in restitution for the care and upkeep of seven bears that were ordered seized by the trial court in March, 2004. Walker has raised ten assignments of error, with subparts, in support of the appeal. For purposes of convenience, we will not list all the assignments of error together as a prelude to our discussion. Instead, we will recite each when we discuss the particular assignment of error.
{ } Before we begin, we should also note that the State failed to file a timely brief. We filed a show cause order on June 29, 2005, asking the State to show cause within fourteen days for its failure to file a brief. However, the State did not respond to our order. We also notified the parties of the time and place for oral argument, by entries of August 3, 2005, and August 15, 2005, but the State failed to appear for oral argument.
{ } On September 6, 2005, the State faxed a motion to our court, asking for permission to submit a brief. A brief and two affidavits were attached to the motion. The affidavits indicated that the State's brief was delivered to the Greene County Clerk of Courts for filing on July 18, 2005. For some unknown reason, the brief was never transmitted to our court, nor is there apparently a record of the brief having been filed. The State's attorney also explained that he had gone to the wrong courthouse for oral argument, based on his belief that oral argument was to be held in Greene County, Ohio.
{ } After considering the matters alleged in the State's affidavits, we find that the State has established good cause for filing its brief. The State's motion is granted, and the brief is deemed filed. In the motion, the State also commented that it was willing to forego oral argument. Therefore, this matter is deemed submitted on the briefs and oral argument previously held with defense counsel present.
I.
{ } In the first assignment of error, Walker claims that "the trial court exceeded its authority under O.R.C. ยง2929.21 by ordering Appellant to pay restitution for the care of his seven black bears." The following facts are pertinent to this assignment of error. On August 8, 2003, Greene County Animal Control Officer, David Turner, was dispatched to a house on Jasper Road, on a report that a German Shepherd dog was loose and was possibly chasing a horse. When Turner arrived at the house, he saw a dog of the same description outside the fenced yard. However, before Turner could capture the dog, it somehow got back into the fenced area. Turner had been to the house previously for the same type of complaint, and was familiar with a resident of the house (David Walker). Because the gate was locked, Turner could not access the property, and simply left a pink slip indicating that a German Shepherd dog had been running loose. The Greene County Sheriff's Department then served Walker with a citation for violating R.C. 955.22, i.e., for failing to confine a dog. Since Walker had a prior conviction, he was charged with a fourth degree misdemeanor. See R.C. 955.99(E)(1).
{ } The case was tried to the Xenia Municipal Court on September 16, 2004. According to the trial transcript, Walker's defense was that he was not the owner of the dog, and that on prior occasions, the Greene County Animal Control Department had allowed a dog's owner to be substituted for a non-owner who had received the citation. The trial court did not find this persuasive, and found Walker guilty of failing to confine the dog. Specifically, even though Walker did not own the dog, he was responsible for the dog because he was a "harborer." As san
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