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State v. Walker10/21/2005
or older or permanently or totally disabled at the time of the commission of the offense, the court, regardless of whether the offender knew the age of victim, shall consider this fact in favor of imposing restitution, but this fact shall not control the decision of the court."
{ } Courts interpreting R.C. 2929.21(E) have rejected attempts to hold convicted individuals responsible for the expenses associated with the removal of animals from their property. In State v. Bybee (1999), 134 Ohio App.3d 395, 731 N.E.2d 232, the trial court ordered a defendant who was convicted of cruelty to animals to make restitution payments to the Society for the Prevention of Cruelty to Animals (SPCA) for expenses related to boarding the defendant's dogs. The restitution was ordered as a condition of probation. When the defendant failed to pay on the $117,625 that was due, the trial court terminated the probation and committed the defendant to six consecutive ninety-day periods of home confinement. 134 Ohio App.3d at 398.
{ } On appeal, the First District Court of Appeals held that expenses incurred in caring for animals removed from the defendant's home were not "property damage" as defined in R.C. 2929.21(E), and that the trial court had erred in ordering restitution for these costs as a condition of probation. Id. at 399. In reaching this holding, the First District followed similar decisions from the Eleventh and Twelfth Appellate Districts. Id. The Sixth District has also held that a trial court erred in ordering a defendant to pay restitution for expenses incurred in caring for animals that were seized and turned over to the Humane Society. State v. Covey (May 19, 2000), Lucas App. No. L-98-1173, 2000 WL 638951, *8.
{ } In its brief, the State argues that R.C. 2929.21(E) no longer existed at the time of Walker's crime, due to amendments to the statute. However, the State is incorrect. Subsection (E) of R.C. 2929.21 was eliminated by Am. Sub. H. B. 490 in 2002, but the change was not effective until January 1, 2004. See Sections 1, 2, and 4 of Am. Sub. H.B. 490, 124th General Assembly (indicating that Sections 1 and 2 of H. B. 490, which included amendments to R.C. 2929.21, would not be effective until January 1, 2004). Because the crime for which Walker was actually convicted occurred on August 8, 2003, the pertinent statute is R.C. 2929.21(E) as it existed before January 1, 2004. This is the version that we cited above.
{ } The State also claims in its brief that R.C. 2929.21 was amended effective July 31, 2003. However, that amendment did not affect R.C. 2929.21(E). The legislation that was approved on July 31, 2003, simply made changes to R.C. 2929.21(H) and (I). These changes were part of legislation relating to sex offender registration and notification, and did not impact R.C. 2929.21(E). See Am. Sub. S.B. 5, 125th General Assembly, approved July 31, 2003.
{ } Accordingly, R.C. 2929.21(E) as quoted above, does apply to this case, and restricts restitution to property damage caused by the crime. We do note that in some cases, courts have allowed non-property damages, like medical expenses, to be awarded to crime victims as a condition of probation. See State v. Shenefield (1997), 122 Ohio App.3d 475, 480, 702 N.E.2d 134 (affirming a trial court order in an aggravated vehicular assault case that, as a further condition of probation, the defendant must just pay restitution of the victim's medical expenses).
{ } The court in Sheffield relied on R.C. 2951.02(B), which mentions that a consideration in granting probation is whether the offender has made or will make restitution to the victim of his crime for the "injury, damage, or loss sustained." This wo
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