[Cite as State v. Arnold, 2017-Ohio-326.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SENECA COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 13-16-13 

 v. 

LESTER C. ARNOLD, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Tiffin-Fostoria Municipal Court 

Trial Court No. 15-CRB-1506A 

Judgment Affirmed 

Date of Decision: January 30, 2017 

 

APPEARANCES: 

 

Gene P. Murray for Appellant 

 Charles R. Hall, Jr. for Appellee 
Case No. 13-16-13 

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PRESTON, P.J. 

{¶1} Defendant-appellant, Lester C. Arnold (“Arnold”), appeals the April 

28, 2016 judgment entry of conviction and sentence of the Tiffin-Fostoria Municipal 

Court, resulting from Arnold’s plea of no contest to a charge of failing to confine a 

dangerous dog in violation of R.C. 955.22(D)(1). On appeal, Arnold argues that his 

conviction should be overturned and that the trial court abused its discretion in 

ordering, as part of Arnold’s sentence, that the dog be destroyed. For the reasons 

that follow, we affirm. 

{¶2} This case stems from a September 14, 2015 incident in which a Belgian 

Malinois dog—for which Arnold was caring while his son was away—escaped from 

Arnold’s residence and mauled a mailman. (See Doc. No. 2). On October 13, 2015, 

a complaint was filed charging Arnold with one count of failing to confine a 

dangerous dog in violation of R.C. 955.22(D)(1), a misdemeanor of the third or 

fourth degree.1

 (Id.). Arnold pled not guilty to the charge. (Doc. No. 6). 

{¶3} On April 28, 2016, the trial court held a change-of-plea and sentencing 

hearing. (Apr. 28, 2016 Tr. at 2). At that hearing, Arnold entered a plea of no 

contest to the charge in the complaint. (Id. at 3-4). The trial court accepted Arnold’s 

plea of no contest and found him guilty of the offense. (Id. at 4, 8). The trial court 

 

1

 R.C. 955.99(G) provides, “Whoever commits * * * a violation of division (D) of [R.C. 955.22] is guilty of 

a misdemeanor of the fourth degree on a first offense and of a misdemeanor of the third degree on each 

subsequent offense.” 
Case No. 13-16-13 

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sentenced Arnold: to 60 days in jail with all 60 days conditionally suspended upon 

compliance with the terms and conditions of probation; to two years on probation; 

and to pay a fine of $250, plus court costs. (Id. at 12); (Doc. No. 17). The trial court 

also ordered, among other things, that Arnold not own or harbor a dog while on 

probation and that he submit “proof that dog has been put down by May 11, 2016.” 

(Id.); (Id.). The trial court filed its judgment entry of conviction and sentence on 

April 28, 2016. (Doc. No. 17). 

{¶4} On May 11, 2016, Arnold filed a notice of appeal. (Doc. No. 20). He 

raises one assignment of error for our review. 

Assignment of Error 

The trial court abused its discretion by improperly and 

prejudicially indicating, anecdoting [sic], and wrongly factoring 

in a self-interpreted directive to make a judgment that defendantappellant Lester Arnold should and would be found guilty, and 

thereafter, said trial court prejudicially abused its discretion by 

imposing a sentencing order to “put down” the dog named Caeto, 

i.e. to kill the dog Caeto, a Belgian Malinois breed, unreasonably 

ignoring other viable options for the fate of the canine, thereby 

resulting in reversible error. 

{¶5} It is unclear exactly what Arnold argues in his assignment of error. It 

appears he argues that his conviction should be overturned because there was “no 

evidence placed on the record” that the dog, Caeto, “was a vicious dog, prior to the 

incident on September 14, 2015.” (Appellant’s Brief at 8). He also appears to 

argue that the trial court abused its discretion when it “summarily ordered a death 
Case No. 13-16-13 

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sentence for the dog” despite the existence of “an available donee for the dog Caeto 

for training and service to law enforcement.” (Id. at 10). 

{¶6} As an initial matter, Arnold’s brief fails to conform with the Rules of 

Appellate Procedure because in it, Arnold raises issues that are not specifically 

assigned as error and briefed according to App.R. 16. See Headings v. Ranco, Inc., 

3d Dist. Union No. 14-04-33, 2005-Ohio-1095, ¶ 6, citing Chem. Bank of New York 

v. Neman, 52 Ohio St.3d 204, 207 (1990) and Toledo’s Great E. Shoppers City, Inc. 

v. Abde’s Black Angus Steak House No. III, Inc., 24 Ohio St.3d 198, 202-203 (1986). 

Rather, Arnold appears to make multiple, unrelated arguments under a single 

assignment of error, which is unclear and unartfully worded at that. Under App.R. 

12(A), we are not required to address the issues that Arnold raises improperly. Id. 

Nevertheless, in the interest of justice, we will address the issues raised in the 

“ARGUMENT” section of Arnold’s brief,2

 although we will construe those issues 

narrowly. 

 

2

 Under the “CONCLUSION” portion of Arnold’s brief, he appears to raise yet another issue. There, Arnold 

argues that the trial court “appeared to be inappropriately taking a victory lap” by referring to a prior, 

unrelated criminal case against Arnold’s son and that this “directional case-in-pointing by the victory lapping 

trial court” was improper. (Appellant’s Brief at 11-12). Under App.R. 16(A)(8), an “appellant shall include 

in its brief * * * [a] conclusion briefly stating the precise relief sought.” (Emphasis added.) The conclusion 

portion of a brief is not a place to raise issues not argued in the argument portion of the brief, and we decline 

to address Arnold’s argument. At any rate, it is unclear precisely what Arnold is arguing in his conclusion. 
Case No. 13-16-13 

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{¶7} We will first address Arnold’s argument that his conviction should be 

overturned. Arnold was charged with violating R.C. 955.22(D)(1).3

 That statute 

provides: 

(D) Except when a dangerous dog is lawfully engaged in hunting or 

training for the purpose of hunting and is accompanied by the owner, 

keeper, harborer, or handler of the dog, no owner, keeper, or harborer 

of a dangerous dog shall fail to * * *: 

(1) While that dog is on the premises of the owner, keeper, or 

harborer, securely confine it at all times in a locked pen that has a top, 

locked fenced yard, or other locked enclosure that has a top * * *. 

R.C. 955.22(D)(1). “‘Dangerous dog’ means a dog that, without provocation, * * * 

has done any of the following: (i) Caused injury, other than killing or serious injury, 

to any person; (ii) Killed another dog; (iii) Been the subject of a third or subsequent 

violation of [R.C. 955.22(C)].” R.C. 955.11(A)(1)(a), cited in R.C. 955.22(A) (“As 

used in this section, ‘dangerous dog’ has the same meaning as in [R.C. 955.11].”). 

 

3

 Although the complaint charges Arnold with violating R.C. 955.22(D)(1), the complaint alleges that Arnold 

failed to confine a vicious dog. The complaint also alleges that the alleged violation of R.C. 955.22(D)(1) is 

a misdemeanor of the first degree. R.C. 955.22 was amended in 2012 by Sub.H.B. 14. See Lima v. Stepleton, 

3d Dist. Allen No. 1-13-28, 2013-Ohio-5655, ¶ 48 (Preston, J., dissenting). By that amendment, all references 

to “vicious” dog were removed from that statute, and a violation of R.C. 955.22(D)(1) is either a fourthdegree or third-degree misdemeanor. See Sub.H.B. 14, 2012 Ohio Laws File 75. In the proceeding below 

and on appeal, the parties mistakenly refer to “vicious” dog rather than “dangerous” dog. Nevertheless, 

Arnold did not challenge in the trial court and does not challenge on appeal the contents of the complaint. 

Accordingly, we will not address that issue. 
Case No. 13-16-13 

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{¶8} R.C. 2937.07 governs a trial court’s actions relative to a plea of “no 

contest” in a misdemeanor case. See State v. Smyers, 5th Dist. Muskingum No. 

CT03-0039, 2004-Ohio-851, ¶ 11. That statute provides, in relevant part: “A plea 

to a misdemeanor offense of ‘no contest’ or words of similar import shall constitute 

an admission of the truth of the facts alleged in the complaint and that the judge or 

magistrate may make a finding of guilty or not guilty from the explanation of the 

circumstances of the offense.” Absent an explanation of the circumstances of the 

offense, “a no contest plea may not be the basis for a finding of guilty.” City of 

Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148, 150 (1984). In this case, Arnold 

appears to argue that absent from the record is an explanation that the dog “was a 

vicious dog, prior to the incident on September 14, 2015.” (Appellant’s Brief at 8). 

However, as we will explain below, Arnold waived the explanation-of-thecircumstances requirement of R.C. 2937.07; therefore, it was not error for the trial 

court to find Arnold guilty absent an explanation that the dog was dangerous as 

defined in R.C. 955.11. 

{¶9} “Although R.C. 2937.07 is mandatory, a defendant could invite 

noncompliance with the statute or waive its requirements,” including the 

explanation of the circumstances. State v. Vittorio, 7th Dist. Mahoning No. 09 MA 

166, 2011-Ohio-1657, ¶ 17, citing State v. Howell, 7th Dist. Mahoning No. 04 MA 

31, 2005-Ohio-2927, ¶ 20, citing City of N. Ridgeville v. Roth, 9th Dist. Lorain No. 
Case No. 13-16-13 

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03CA008396, 2004-Ohio-4447, ¶ 12. Indeed, several Ohio courts “have held that 

R.C. 2937.07 is waivable.” State v. Kern, 6th Dist. Lucas No. L-14-1173, 2015-

Ohio-1988, ¶ 12, citing City of Broadview Hts. v. Burrows, 8th Dist. Cuyahoga No. 

79161, 2001 WL 1174264, *2 (Oct. 4, 2001), Smyers at ¶ 12, State v. Ritch, 4th Dist. 

Scioto No. 97CA2491, 1998 WL 282970 (May 11, 1998), Roth at ¶ 12, and Howell 

at ¶ 20. 

{¶10} It does not appear that this court has addressed whether a defendant 

may waive the requirements of R.C. 2937.07. We join the many other Ohio courts 

that have held that the explanation-of-the-circumstances requirement of R.C. 

2937.07 is waivable. See Kern at ¶ 12. We further hold that Arnold waived that 

requirement in this case. At the change-of-plea and sentencing hearing, the 

following exchange took place when Arnold, through counsel, entered his plea of 

no contest: 

[Trial Court]: And how does your client wish to plea plead 

[sic], [Defense Counsel]? 

[Defense Counsel]: No contest. Consent to a finding of guilt, Your 

Honor. And there’s an actual basis. 

[Trial Court]: And you understand, Mr. Arnold, by entering a 

plea of no contest, you’re admitting the truth of 

the facts as alleged on the face of the A charge. 
Case No. 13-16-13 

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[Defendant]: Yes, sir. 

[Trial Court]: And you understand what the maximum 

possible penalties are. 

[Defendant]: Yes, sir. 

[Trial Court]: At this time, I’ll accept your pleas [sic] of no 

contest. 

(Apr. 28, 2016 Tr. at 3-4). 

{¶11} The Seventh District Court of Appeals in Vittorio held that the 

defendant, “with counsel, entered a stipulation of guilt, thereby waiving the [R.C. 

2937.07] requirement.” Vittorio at ¶ 22. Specifically, the defendant’s counsel said 

at the change-of-plea hearing, “We would waive any defects in the preparation and 

service of the amended complaint stipulate [sic] to a finding of guilt.” Id. at ¶ 21. 

The Seventh District held that the defendant’s “‘stipulation to a finding of guilt’ 

constituted a waiver of the R.C. 2937.07 requirements.” Id. at ¶ 2. In this case, not 

only did Arnold, through counsel, “[c]onsent to a finding of guilt,” he also stated, 

“And there’s an actual basis.” (Apr. 28, 2016 Tr. at 3). Therefore, we hold that 

Arnold waived the R.C. 2937.07 explanation-of-the-circumstances requirement in 

this case. 

{¶12} Even assuming Arnold did not waive the R.C. 2937.07 requirements, 

we would not hold that his conviction should be reversed. See Ritch, 1998 WL 
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282970, at *4 (“Even assuming, arguendo, that such explanation was not properly 

waived in these circumstances, we would still not be inclined to reverse the 

judgment on this point.”). “The ‘invited error doctrine’ holds that a party will not 

be permitted to take advantage of an error which he himself invited or induced the 

court to make.” Id., citing State ex rel. O’Beirne v. Geauga Cty. Bd. of Elections, 

80 Ohio St.3d 176, 181 (1997) and State ex rel. Bitter v. Missig, 72 Ohio St.3d 249, 

254 (1995). As in Ritch, based on the discussion at the change-of-plea and 

sentencing hearing, “[t]here is no doubt here that the trial court dispensed with 

having the prosecution give an explanation of circumstances on the invitation of 

appellant himself.” Id. at *4. That is, Arnold consented to a finding of guilt and 

that there is “an actual basis.” (Apr. 28, 2016 Tr. at 3). “He cannot now take 

advantage of the fact that his invitation was accepted and demand a reversal of the 

judgment.” Ritch at *4. Accordingly, we uphold Arnold’s conviction for violating 

955.22(D)(1). 

{¶13} We next address Arnold’s argument that the trial court abused its 

discretion when it ordered, as part of Arnold’s sentence, that the dog be destroyed. 

“We review a trial court’s sentence on a misdemeanor violation under an abuse of 

discretion standard.” State v. Nolan, 3d Dist. Marion No. 9-15-48, 2016-Ohio-2985, 

¶ 12, citing R.C. 2929.22 and State v. Frazier, 158 Ohio App.3d 407, 2004-Ohio4506, ¶ 15 (1st Dist.). An abuse of discretion implies that the trial court’s decision 
Case No. 13-16-13 

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was unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 

157 (1980). 

{¶14} Arnold does not argue that the trial court’s order that the dog be 

destroyed is contrary to law. Indeed, R.C. 955.99 provides, in relevant part: 

Whoever commits a violation of * * * [R.C. 955.22(D)] is guilty of a 

misdemeanor of the fourth degree on a first offense and of a 

misdemeanor of the third degree on each subsequent offense. 

Additionally, the court may order the offender to personally supervise 

the dangerous dog that the offender owns, keeps, or harbors, to cause 

that dog to complete dog obedience training, or to do both, and the 

court may order the offender to obtain liability insurance pursuant to 

division (E) of section 955.22 of the Revised Code. The court, in the 

alternative, may order the dangerous dog to be humanely destroyed 

by a licensed veterinarian, the county dog warden, or the county 

humane society at the owner’s expense.

(Emphasis added.) R.C. 955.99(G). Rather, Arnold argues that the trial court failed 

to properly consider that the current keeper of the dog “has indicated that while in 

his physical custody, the dog Caeto has not bitten anyone, nor attempted to bite 

anyone, and that [the current keeper of the dog] has an available donee for the dog 

Caeto for training and service to law enforcement.” (Appellant’s Brief at 10). 
Case No. 13-16-13 

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{¶15} “A trial court must consider the criteria of R.C. 2929.22 and the 

principles of R.C. 2929.21 before imposing a misdemeanor sentence.” Nolan at ¶ 

12, citing State v. Crable, 7th Dist. Belmont No. 04 BE 17, 2004-Ohio-6812, ¶ 24. 

R.C. 2929.21 provides, in relevant part: 

(A) A court that sentences an offender for a misdemeanor or minor 

misdemeanor violation of any provision of the Revised Code * * * 

shall be guided by the overriding purposes of misdemeanor 

sentencing. The overriding purposes of misdemeanor sentencing are 

to protect the public from future crime by the offender and others and 

to punish the offender. To achieve those purposes, the sentencing 

court shall consider the impact of the offense upon the victim and the 

need for changing the offender’s behavior, rehabilitating the offender, 

and making restitution to the victim of the offense, the public, or the 

victim and the public. 

(B) A sentence imposed for a misdemeanor or minor misdemeanor 

violation of a Revised Code provision * * * shall be reasonably 

calculated to achieve the two overriding purposes of misdemeanor 

sentencing set forth in division (A) of this section, commensurate with 

and not demeaning to the seriousness of the offender’s conduct and 
Case No. 13-16-13 

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its impact upon the victim, and consistent with sentences imposed for 

similar offenses committed by similar offenders. 

R.C. 2929.21. 

{¶16} Generally, “a court that imposes a sentence under [R.C. Chapter 2929] 

upon an offender for a misdemeanor or minor misdemeanor has discretion to 

determine the most effective way to achieve the purposes and principles of 

sentencing set forth in section 2929.21 of the Revised Code.” R.C. 2929.22(A). 

R.C. 2929.22(B) “sets forth specific factors for the trial court to consider before 

imposing a sentence, including the nature and circumstances of the offense, the 

offender’s history of criminal conduct, the victim’s circumstances, and the 

likelihood that the offender will commit future crimes.” Nolan, 2016-Ohio-2985, 

at ¶ 12. 

{¶17} At the change-of-plea and sentencing hearing, counsel for the State 

indicated that, as part of the sentence, the State was “asking the dog be ordered 

either surrendered to law enforcement or destroyed.” (Apr. 28, 2016 Tr. at 3). 

Arnold’s counsel later stated, “We just ask the Court to adopt the prosecutor’s 

recommendation.” (Id. at 9). When the trial court asked about the dog’s 

whereabouts, counsel for the State responded, “It’s at a kennel in Cleveland 

awaiting transport to a law enforcement officer, but we wouldn’t do that until the 

case was over.” (Id. at 5). Arnold’s counsel indicated, “Mr. Arnold doesn’t want 
Case No. 13-16-13 

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the dog back or any other dog in his home, Your Honor.” (Id. at 6). Arnold added, 

“I checked to see about killing the dog. They want from 20 to $50 a day to keep a 

dog.” (Id. at 7). 

{¶18} Arnold’s counsel indicated at the hearing, “There were some serious 

injuries.” (Id. at 4). The trial court apparently agreed, saying, “I’ve never seen 

anything like this,” to which Arnold responded, “He’s a pretty athletic dog, Your 

Honor.” (Id. at 5). Arnold’s counsel later added, “It’s terrible.” (Id. at 8). When 

the trial court stated that it was “not sure that a dog that does this is going to be able 

to be rehabilitated,” Arnold’s counsel responded, “I agree, Your Honor.” (Id. at 7). 

Counsel for the State added, “Two months ago, the trainer at [the kennel] said he 

thought it could be, but now it’s been two more months of being in a cage. I’m just 

not sure.” (Id.). 

{¶19} We reject for no fewer than three reasons Arnold’s argument that the 

trial court abused its discretion in ordering that the dog be destroyed. First, Arnold 

fails to suggest exactly why or how—in relation R.C. 2929.21 and 2929.22—the 

trial court abused its discretion in supposedly not considering the circumstances 

mentioned by Arnold. It is not this court’s duty to create an argument for an 

appellant, and we will not do so in this case. See State v. Wendel, 3d Dist. Union 

No. 14-13-23, 2016-Ohio-7915, ¶ 39. Second, Arnold asked the trial court to adopt 

the State’s sentencing recommendation, which included, as a potential alternative, 
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the dog being destroyed. By doing so, he waived any argument that the trial court 

should not have included as part of the sentence that the dog be destroyed. See State 

v. Parsons, 4th Dist. Athens No. 09CA4, 2009-Ohio-7068, ¶ 9-10. Finally, even 

were we to address the merits of Arnold’s argument, the transcript of the hearing 

indicates that Arnold and his counsel acknowledged the serious injuries sustained 

by the victim and the need for Arnold to avoid any future dog ownership or handling. 

The transcript also reveals that Arnold’s counsel concurred when the trial court 

expressed doubt about whether the dog could be rehabilitated. For these reasons, 

the trial court did not abuse its discretion by ordering that the dog be destroyed. 

{¶20} Arnold’s assignment of error is overruled. 

{¶21} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

WILLAMOWSKI, J., concurs in Judgment Only. 

/jlr 

ROGERS, J., dissenting. 

{¶22} I must respectfully dissent from the opinion of the majority. 

{¶23} I start with a consideration of the plea proceedings. 

{¶24} R.C. 2937.07 provides, in relevant part: 
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A plea to a misdemeanor offense of “no contest” or words of similar 

import shall constitute an admission of the truth of the facts alleged in 

the complaint and that the judge or magistrate may make a finding of 

guilty or not guilty from the explanation of the circumstances of the 

offense. 

{¶25} In Bowers, the Ohio Supreme Court addressed the juxtaposition 

between this portion of R.C. 2937.07 and Crim.R. 11(B)(2), which provides that a 

“plea of no contest is * * * an admission of the truth of the facts alleged in the * * * 

complaint * * * .” Ultimately, the Court found that R.C. 2937.07 provided a 

criminal defendant with the substantive right to require of the trial court an 

explanation of circumstances following a plea of no contest to a misdemeanor. 

Bowers, 9 Ohio St.3d at 150-151. 

{¶26} The majority chooses to adopt the view of the Seventh District Court 

of Appeals that a stipulation to a finding of guilt is—by itself—sufficient to waive 

the explanation of circumstances requirement. I do not believe this view is 

consistent with Ohio law or the Ohio Supreme Court’s holding in Bowers. 

{¶27} Other Ohio appellate courts seem to share this concern. For example, 

in State v. Roland, the Second District Court of Appeals considered whether the 

defendant’s “agreement to be found guilty” waived the explanation-ofcircumstances requirement. 2d Dist. Champaign No. 2005 CA 39, 2006-Ohio-3517, 

¶ 18. The court concluded that the defendant’s agreement “was no more than his 

agreement to be found guilty in accordance with R.C. 2937.07 * * * .” Id. 
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{¶28} Likewise, in City of Berea v. Moorer, the Eighth District Court of 

Appeals considered whether defense counsel’s stipulation to the facts and a finding 

of guilt waived the explanation-of-circumstances requirement. 8th Dist. Cuyahoga 

No. 103293, 2016-Ohio-3452. The court concluded that it did not because “there 

was no explicit waiver of the reading of the facts or explanation of circumstances.” 

(Emphasis added.) Id. at ¶ 13. 

{¶29} Again, in Roth, the Ninth District Court of Appeals concluded, 

“Because [defense counsel] explicitly waived a reading of the facts, Mr. Roth cannot 

now raise on appeal the argument that the court did not read the facts at the time 

that he made his no contest plea.” (Emphasis added.) 2004-Ohio-4447, ¶ 12. 

{¶30} It is my opinion that R.C. 2937.07 requires the trial court to make a 

determination of the sufficiency of the evidence from the facts in the record, and 

that this requirement is a substantive right which cannot be waived, and if it could, 

it certainly was not explicitly waived in this case. 

{¶31} Further, there was considerable confusion as to the section of law 

under which Arnold was charged as opposed to that with which he was convicted. 

{¶32} R.C. 955.22 governs the confinement of dogs. It requires the owner, 

keeper, harborer, or handler of a dog to “[k]eep 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” and “[k]eep the 
Case No. 13-16-13 

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dog under the reasonable control of some person.” R.C. 955.22(C)(1). The penalty 

for violating this statute depends on whether the dog is a “nuisance dog,” 

“dangerous dog,” or “vicious dog.” R.C. 955. 22(E)(1)-(H)(2). 

{¶33} “Nuisance dog” means “* * * a dog that without provocation and while 

off the premises of its owner, keeper, or harborer has chased or approached a person 

in either a menacing fashion or an apparent attitude of attack or has attempted to 

bite or otherwise endanger any person.” R.C. 955.11(A)(3)(a). 

{¶34} “Dangerous dog” means “a dog that, without provocation, * * * has 

[c]aused injury, other than killing or serious injury, to any person; [k]illed another 

dog; [or] [b]een the subject of a third or subsequent violation of [R.C. 

955.22(C)(1).]” R.C. 955.11(A)(1)(a). 

{¶35} “Vicious dog” means “a dog that, without provocation * * *, has killed 

or caused serious injury to any person.” R.C. 955.11(A)(6)(a). 

{¶36} While R.C. 955.22(C)(1) applies to every owner, keeper, or harborer 

of a dog, R.C. 955.22(D)(1) adds additional responsibilities for the owner, keeper, 

or harborer of a dangerous dog. It requires the owner, keeper, or harborer to “[w]hile 

that dog is on [their] premises * * * , securely confine it at all times in a locked pen 

that has a top, locked fenced yard, or other locked enclosure that has a top.”4

 R.C. 

955.22(D)(1). 

 

4

 Under former R.C. 955.22(D)(1), these requirements also applied to vicious dogs. 
Case No. 13-16-13 

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{¶37} Under either statute, if the dog involved is vicious or dangerous, then 

the court may order the dog to be humanely destroyed by a licensed veterinarian, 

the county dog warden, or the county humane society at the owner's expense. R.C. 

955.99(G), (H)(1). 

{¶38} The complaint alleged that Arnold “did unlawfully and while being 

the owner, keeper, or harborer of a vicious dog, did fail to securely confine the 

vicious dog on premises, as required by statute.” (Emphasis added.) (Docket No. 

2). Although the compliant referred to the dog as vicious, it cited R.C. 955.22(D)(1), 

the dangerous dog statute.5

 The judgment entry also referred to the offense as 

“SECURE VIC DOG” but cited R.C. 955.22(D)(1). (Docket No. 17). Neither 

document cited R.C. 955.22(C)(1) or 955.99(H)(1), the statutes pertaining to vicious 

dogs. 

{¶39} From the record, it is clear that neither defense counsel nor the 

prosecutor recognized the difference between the designation as a dangerous dog or 

vicious dog. The trial judge also referred to the dog as vicious although Arnold was 

charged under the dangerous dog statute. Further, although citing R. C. 955.22 

(D)(1) as the offense of which Arnold was being convicted, the trial court’s entry 

again referred to a “vic” (vicious) dog. If the parties and the trial court were so 

 

5

 It is also worth noting that the complaint alleged that Arnold failed to “securely confine” the vicious dog, 

and this phrase is found only in the dangerous dog statute. (Docket No. 2). 
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confused as to the offense at issue, there certainly could be no finding as to the 

sufficiency of the evidence. If for no other reason, this conviction must be reversed 

due to the mutual mistake of the parties and the trial judge, as to the offense at issue. 

{¶40} There is the further problem of whether the offense could properly be 

brought under either statute. The statutes defining a “dangerous dog” and “vicious 

dog” both are drafted in the past tense. I interpret that to mean that there must have 

been a prior incident to put the owner, keeper, or harborer on notice or a prior 

designation as a “dangerous dog” or a “vicious dog” before anyone could be charged 

under the statutes at issue. How can one fail to confine a dangerous or vicious dog 

if one is not aware that the dog meets that criteria? There is no evidence in this case 

that the dog had been previously designated as a dangerous or vicious dog or that 

the dog had previously caused injury to another. The fact that the Dog Warden only 

served a notice of designation subsequent to and based on the incident leading to 

Arnold’s charge certainly requires the conclusion that there had been no previous 

designation. 

{¶41} Additionally, the trial court’s sentencing entry included an order that 

the court be provided with evidence that the dog had been “put down” by a certain 

date. R.C. 955.99(G) and (H)(1) provide that upon conviction of either R.C. 

955.22(C)(1) or (D)(1), the court may order the dog to be humanely destroyed by a 

licensed veterinarian, the county dog warden, or the county humane society at the 
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owner’s expense. Here, the trial court failed to designate the responsibility of 

destruction to any person or official, and I would find that order to be inadequate 

and unenforceable. Further, the statute provides that the trial court should order the 

expense of the destruction be the owner’s responsibility. Here, the trial court failed 

to designate that responsibility, and since it was undisputed that Arnold was not the 

owner but was only keeping the dog temporarily for his son, the trial court could 

not order him to be responsible for the costs of destruction. 

{¶42} Finally, the majority fails to note that the trial court committed plain 

error in ordering Arnold to pay restitution to the kennel company. There are two 

potential statutes governing this issue, neither of which are applicable in this case. 

First, R.C. 2929.28 (A)(1) provides that a trial court may order an offender to pay 

restitution “to the victim of the offender's crime or any survivor of the victim.” The 

kennel company was not a victim of Arnold’s crime and therefore cannot receive 

restitution under R.C. 2929.28(A)(1). Second, R.C. 955.99(G) allows for a 

dangerous dog to be confined in a county pound, at the dog owner’s expense, until 

the court makes a final determination as to the offender’s guilt or innocence. 

However, this part of the statute only applies to violations of R.C. 955.22(C), and 

Arnold was convicted under R.C. 955.22(D). Furthermore, the kennel where the 

dog was being housed was not the county pound. 
Case No. 13-16-13 

-21- 

{¶43} Also, the trial court failed to determine or specify the amount of 

restitution and therefore the order would be unenforceable even if proper. The 

majority would probably contend that the order of restitution was included as a term 

of probation and is therefore enforceable. However, I maintain that the trial court 

can only order that which is authorized by statute. 

{¶44} For all of the reasons listed above, I would vacate the orders of the 

trial court and order that the charge be dismissed. 

/jlr