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State v. Walker10/21/2005
rding is a bit broader than property damage, and the court, therefore, justified an award of medical expenses to the victim.
{ } We reached a similar result in City Of Dayton v. Santos (Jan. 12, 2001), Montgomery App. No. 18324, 2001 WL 28672, *6 -7. In Santos, we distinguished between restitution that is ordered as part of a sentence under R.C. 2929,21(E) and restitution that is ordered as a condition of probation under R.C. 2951.02(B)(9) and (C). In the latter situation, the statute allows some compensation of a victim's other damages, including medical expenses. Consequently, we allowed the victims to recover surveillance costs they had incurred in attempting to catch the defendant in the acts of stalking or destroying their property. Id.
{ } Based on the above authority, we agree that restitution may not be strictly limited to a victim's property damage. Nonetheless, the restitution that was ordered in the present case did not fit within the above framework and was not authorized under the law.
{ } In State v. Bender, Champaign App. No. 2004 CA 11, 2005-Ohio-919, we noted that:
{ } " sentence of restitution must be limited to the actual economic loss caused by the illegal conduct for which the defendant was convicted. * * * 'Thus, restitution can be ordered only for those acts that constitute the crime for which the defendant was convicted and sentenced.' * * * A trial court abuses its discretion when it orders restitution in an amount which has not been determined to bear a reasonable relationship to the actual loss suffered as a result of the offense for which the defendant was convicted." Id. at , quoting from State v. Hooks (2000), 135 Ohio App.3d at 746, 749, 735 N.E.2d 523 (emphasis added).
{ } The crime for which Walker was convicted and sentenced was failure to confine a dog. If that crime itself had caused property damage or personal injury to a victim, the trial court could have ordered Walker to pay the victim restitution for the damage. However, Walker's failure to confine a dog did not cause any property damage or personal injury to anyone. Accordingly, the trial court did not have the authority to order Walker to pay restitution for the upkeep and care of animals that were not the subject of the criminal charge.
{ } Furthermore, based on Bybee, State v. Covey, and the other cases mentioned in Bybee, the trial court would not have been able to order restitution for the upkeep and care of the bears even if Walker had been convicted of failing to confine the bears. The trial court's orders in the present case may have been well-intentioned, but the court failed to comply with the law.
{ } Based on the preceding discussion, the first assignment of error has merit and is sustained.
II.
{ } In the second assignment of error, Walker contends that the trial court's order is an in personam forfeiture amounting to an excessive fine under the Eighth Amendment to the United States Constitution and Section 9, Article I of the Ohio Constitution. Before discussing this issue, we should note that the present case involves two "forfeitures" and separate claims of error that are associated with each. The first alleged forfeiture (and the one being raised in the second assignment of error) is the $32,127 that was imposed as restitution for the cost of caring for the bears. Walker contends this is an excessive fine under the United States and Ohio Constitutions. The second alleged forfeiture is the seizure and forfeiture of the bears. Walker challenges that forfeiture in the fourth, fifth, and sixth assignments of error.
{ } In responding to the second assignment of error, the State
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