State v. ByrdState v. Byrd
OPINION
{¶ 1} This timely appeal comes for consideration upon the record in the trial court and the parties’ briefs. Defendant-Appellant, Ronald Byrd, appeals the decision of the Belmont County Court, Northern Division, that found him guilty of letting his dogs run loose and sentenced accordingly. Byrd raises four issues on appeal.
{¶ 2} First, Byrd argues the trial court imposed an excessive fine upon him. The State concedes that the trial court erred. The trial court‘s sentence is modified to the maximum allowable fine.
{¶ 3} Second, Byrd argues that his charging instrument was somehow defective since it only charged him with one count of dogs running loose when the evidence presented demonstrated that there were two dogs running loose. But the complaint properly charged Byrd with one count of letting a dog run loose and the investigatory information in the file clearly indicate, that the evidence would be about two dogs rather than one.
{¶ 4} Third, Byrd argues the trial court erred by finding that his dogs are vicious dogs. The State concedes this argument as well since the dogs have not yet met the statutory definition of “vicious dogs“. The error is harmless since the viciousness of the dogs is not an element of the offense and did not increase the sentence the trial court imposed. However, we modify the judgment to eliminate the determination that Byrd‘s dogs are vicious dogs.
{¶ 5} Finally, Byrd argues the trial court could not order that he pay restitution since economic damage is not an element of the offense. But the statute allowing the trial court to order restitution does not limit the trial court‘s ability this way and courts have routinely ordered restitution in cases involving “victimless crimes.”
{¶ 6} For these reasons, the trial court‘s decision is affirmed in part and reversed and modified in part to reflect that Byrd must pay a $100.00 fine rather than a $150.00 fine and to eliminate the determination that Byrd‘s dogs are vicious dogs.
Facts
{¶ 7} On April 17, 2004, Byrd‘s two dogs escaped from his yard. While they were loose, they mauled a dog owned by Elmer Elekes, one of Byrd‘s neighbors. Elekes‘s dog was severely injured by the mauling. A complaint was filed against Byrd on June 10, 2004, charging him with one count of letting his dog run loose in violation of
Excessive Fine
{¶ 8} In his first of four assignments of error, Byrd argues:
{¶ 9} “The fine imposed on the Defendant is excessive and outside the statutory guidelines.”
{¶ 10} Byrd contends the trial court imposed an excessive fine upon him. The trial court imposed a $150.00 fine on Byrd for a violation of
{¶ 11} “Whoever violates section
{¶ 12} The State concedes that this is Byrd‘s first conviction for a violation of
Charging Instrument
{¶ 13} In his second assignment of error, Byrd argues:
{¶ 14} “The sentencing court erroneously determined that Defendant‘s dogs were vicious because the charging instrument was unclear as to how many of the Defendant‘s dogs were involved in the alleged Revised Code 955.22 violation.”
{¶ 15} Byrd contends that the complaint filed in this case was deficient since it charged him with one count of a violation of
{¶ 16} A complaint is the basic charging instrument in all criminal proceedings in this state. State v. Wood (1976), 48 Ohio App.2d 339, 343. It is a written statement of the essential facts constituting the offense charged and may be made by either a police officer or a private citizen having knowledge of the facts.
{¶ 17} Byrd was charged with violating
{¶ 18} “Except when a dog is lawfully engaged in hunting and accompanied by the owner, keeper, harborer, or handler of the dog, no owner, keeper, or harborer of any dog shall fail at any time to do either of the following:
{¶ 19} “(1) Keep 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;
{¶ 20} “(2) Keep the dog under the reasonable control of some person.”
{¶ 21} The complaint states as follows: “Complaintant being duly sworn states that Ronald E. Byrd at Pease Township Belmont County, Ohio on or about 4-17-2004 Being [sic] the owner or keeper of a dog, did not keep such dog confined upon the premises of the owner or under reasonable control of some person, said dog not being lawfully engaged in hunting accompanied by an owner or handler.
{¶ 22} This complaint clearly states all the essential facts of a violation of
{¶ 23} As for Byrd‘s argument that he did not know that the testimony would relate to two dogs, the police incident report along with the statements of two witnesses were also filed on the same day as the complaint. Each of those documents specified that two of Byrd‘s dogs were involved in the incident. Furthermore, Byrd failed to request a bill of particulars or request discovery. Thus, his argument concerning a lack of notice is also meritless.
Vicious Dogs
{¶ 24} In his third assignment of error, Byrd argues:
{¶ 25} “The sentencing court improperly adjudicated the Defendant‘s dogs vicious in lieu of the fact that none of the Defendant‘s dogs met the statutory requirements of a vicious dog.
{¶ 26} Byrd contends that
{¶ 27} “`Vicious dog’ means a dog that, without provocation and subject to division (A)(4)(b) of this section, meets any of the following:
{¶ 28} “(i) Has killed or caused serious injury to any person;
{¶ 29} “(ii) Has caused injury, other than killing or serious injury, to any person, or has killed another dog.
{¶ 30} “(iii) Belongs to a breed that is commonly known as a pit bull dog. The ownership, keeping, or harboring of such a breed of dog shall be prima-facie evidence of the ownership, keeping, or harboring of a vicious dog.”
{¶ 31} The State concedes that Byrd‘s dogs do not meet this definition, but argues the trial court‘s error was harmless. The trial court‘s determination that Byrd‘s dogs were vicious may be superfluous in this case, but it is not a stretch of the imagination to see that a prosecutor or judge may use that determination against him in the future. Byrd‘s third assignment of error is meritorious.
Restitution
{¶ 32} In his final assignment of error, Byrd argues:
{¶ 33} “Defendant was improperly ordered to pay restitution.”
{¶ 34} Byrd contends the trial court erred when it ordered restitution since the crime he was convicted of committing has nothing to do with any person‘s economic loss. More specifically, Byrd is arguing that a trial court cannot order restitution for any crime unless the elements of that offense included some kind of property damage.
{¶ 35}
{¶ 36}
{¶ 37} Byrd does not challenge either the fact that his dogs caused property damage while running loose or the amount of restitution the trial court ordered that he pay the other dog owner. Instead, he argues the trial court did not have the authority to order restitution since property damage is not an element of
{¶ 38}
{¶ 39} These statutes provide that “restitution is limited to the economic loss caused by the defendant‘s illegal conduct for which he was convicted.” State v. Hooks (2000), 135 Ohio App.3d 746, 749. But it does not appear to limit a trial court‘s ability to order restitution to offenses which are defined in part by an economic loss. Many courts, including this one, have affirmed a sentence which included a restitution award when the offense is aimed at preventing harm to “society as a whole,” rather than to a particular victim. See State v. Hooks (2000), 135 Ohio App.3d 746, (Tampering with public records); State v. Hunt, 5th Dist. No. 04-CA-00005, 2004-Ohio-5519 (Failure to stop after an accident); Cleveland v. Lupica, 8th Dist. No. 83912, 2004-Ohio-5221 (Failure to insure or confine a dog); State v. Huff, 6th Dist. No. WD-03-068, 2004-Ohio-2677 (Criminal environmental violations); State v. Monroe, 4th Dist. No. 02CA56, 2003-Ohio-3516 (Disrupting public services); State v. Kyser (Aug. 10, 2000), 7th Dist. No. 98 CA 144 (Failure to stop after an accident).
{¶ 40} Clearly, the injury to the victim‘s dog in this case is a direct and proximate result of Byrd‘s violation of
Conclusion
{¶ 41} In conclusion, Byrd‘s second and fourth assignments of error are meritless. There was no defect in his charging instrument and the trial court had the authority to order restitution in this case. Byrd‘s first and third assignments of error are meritorious as the trial court erred when it imposed an excessive fine and determined that Byrd‘s dogs were vicious. Accordingly, the judgment of the trial court is affirmed in part and reversed and modified in part. The judgment of the trial court determining that Byrd‘s dogs were vicious is stricken and Byrd‘s fine is modified to $100.00.
Donofrio, P