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State v. Walker10/21/2005
hat the trial court had acted within its discretion under R.C. 2929.51(A)(2) by restricting Walker to animals he had on the premises. We noted that this sanction was actually stayed, and that Walker had a number of past violations for failure to confine. The trial court had also alluded to its concern with bears housed on the property and the potential for danger to the community if the bears escaped. See State v. Walker, Greene App. No. 2003-CA-93, 2004-Ohio-7258, at .
{ } In State v. Walker, Greene App. No. 2003-CA-94, 2004-Ohio-7259, we found that the trial court and State had misread 955.22(D)(1) by requiring Walker to confine a pit bull in a locked yard that had a top. We concluded that putting a top on a yard fence was impracticable. Id. at . Since Walker had properly confined the dog in a locked yard, we reversed his conviction for failure to confine a vicious dog. Id. at -11. However, we did affirm Walker's convictions for failing to confine a German Shepherd and a Doberman Pincer, finding that those convictions were not against the manifest weight of the evidence. Id. at -22. We did not address any issues relating to the bears or to probation conditions.
{ } Finally, in State v. Walker, Greene App. No. 2004-CA-16, 2004-Ohio-7252, we considered an appeal from a trial court order requiring Walker to rid his property of the bears. Id. at . We found that exigent circumstances might excuse what due process and Crim. R. 43(A) would otherwise require. Id. at 5-8. Because of the exigent circumstances, we did not find a due process violation in the court's ex parte order of February 17, 2004, which ordered Walker to remove the bears. Id. at -17. We also noted that a follow-up hearing occurred on March 11, 2004, in which Walker was afforded an opportunity to speak. Id. at .
{ } The second assignment of error in that case dealt with whether the court had abused its discretion in ordering removal of the bears. In this regard, we found that the removal order was reasonably related to the offense for which Walker was on probation, i.e., the failure to confine a dog. Id. at .
{ } As we mentioned, our opinions in the three appellate cases were issued on December 23, 2004. On February 8, 2005, the trial court issued another judgment entry "reviewing" the matter. Again, there is no indication that the court gave notice to Walker, held a hearing, or allowed the presentation of witnesses or evidence before issuing its ruling.
{ } The first comment in the February 8, 2005 entry is that the Second District Court of Appeals had ruled that the Xenia Municipal Court acted properly in seizing the bears. This was incorrect. That issue was not before us, because none of the entries under appeal had ordered seizure of the bears. Accordingly, we considered only whether the Xenia Municipal Court had acted properly in ordering Walker to remove the bears from his premises. What happened thereafter has never been the subject of any appellate decision.
{ } After making the above comment, the trial court noted that the expenses for upkeep of the bears though February, 2005, totaled approximately $32,127. The court stated that it would hold the bears until February 28, 2005 before disposing of them by placement. The court then ordered Walker to pay $32,127 in full by February 28, 2005, in order to retrieve the bears. The court indicated that it would release the bears to Walker if he paid that amount in full and could prove that the bears would be transferred to a USDA approved facility. Walker filed a notice of appeal from this decision on February 15, 2005, and also asked that the appeal be expedited. In addition, Walker asked us to stay the court's decision
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