[Cite as State v. Nolan, 2016-Ohio-2985.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 9-15-48

        v.

KELLI L. NOLAN,                                          OPINION

        DEFENDANT-APPELLANT.




                          Appeal from Marion Municipal Court
                             Trial Court No. CRB15-1256

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                              Date of Decision: May 16, 2016




APPEARANCES:

        Sheena Bateman-Carothers and M. Galen Billow for Appellant

        Mark D. Russell for Appellee
Case No. 9-15-48


SHAW, P.J.

           {¶1} Defendant-appellant, Kelli L. Nolan, appeals the November 13, 2015

judgment of the Marion Municipal Court accepting her plea of no contest,

convicting, and sentencing her on one count of failure to confine her dog, in

violation of R.C. 955.22(C), a misdemeanor of the fourth degree. On appeal,

Nolan assigns several errors with the trial court’s sentence.

           {¶2} On June 3, 2015, Nolan was cited for failing to confine her dog. The

charge stemmed from Nolan’s dog, a Rhodesian Ridgeback named “Lacy,”

becoming loose from her tether in Nolan’s backyard and attacking Ann B.’s dog, a

fox terrier named “Foxy.”1 Foxy suffered serious injuries as a result of the attack,

which required Ann B. to incur a significant veterinary bill to mend Foxy’s

wounds. The citation noted that this was Nolan’s second offense. The record

indicates that the first offense occurred four months prior and involved a similar

set of circumstances with Foxy.

           {¶3} On September 10, 2015, Nolan entered a plea of no contest. The trial

court accepted her plea and found Nolan guilty.

           {¶4} On November 13, 2015, the trial court conducted a sentencing hearing

where three witnesses testified. Two neighbors of Nolan and Ann B. testified for

the prosecution and expressed their concern for safety with Lacy in the



1
    Ann B. is Nolan’s neighbor.

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neighborhood. One witness, Robert Peters, recalled an incident where Lacy was

unrestrained and charged him and his dog as they walked past Nolan’s house. He

explained that when his dog immediately rolled on its back into a submissive

position, Lacy sniffed his dog, did not attack, eventually lost interest, and walked

away. Peters also recalled his encounters with Foxy and stated that she always

played well with his dog. Since Lacy’s last attack on Foxy, Peters no longer

passed Nolan’s property on his walks with his dog.           He also “forbid” his

grandchildren from venturing near Nolan’s house because of Lacy. (Tr. at 8).

      {¶5} The other witness, Jack Bull, stated he was concerned for the

neighborhood’s safety reputation with Lacy present and worried about the re-sale

value of his home. He further recalled seeing Lacy off her tether a few months

prior to the November hearing—and after the second incident with Foxy.

However, he conceded that he never saw Lacy attack anyone or be aggressive.

      {¶6} Nolan also provided testimony. She explained that during the first

incident in February 2015, the hook on the tether had broken allowing Lacy to run

into Ann B.’s yard. Nolan claimed that she immediately paid the veterinary bill

for the injuries Foxy sustained from the first incident and took measures to more

securely confine Lacy. Specifically, she purchased a body harness and a triple

braided boat rope with an industrial clip to tether Lacy to a horse hitch in the

ground. She had placed Lacy on the tether on the date of the second incident.


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Nolan recalled that on that day the doorbell rang and when she answered the door,

two older children were there holding Lacy by her body harness and informed

Nolan that Lacy had just attacked Foxy again. Nolan inspected the tether and

body harness which appeared to be intact. Nolan expressed her disbelief as to how

Lacy had broken free from the tether for a second time. According to Nolan, Lacy

had never shown aggression toward humans and usually played well with other

dogs. She explained that Lacy does not like other aggressive animals and claimed

that she observed Foxy showing aggression toward people and other dogs while

tethered in Ann B.’s front yard.

       {¶7} Nolan acknowledged that at a pre-trial in June for the second offense,

the trial court instructed her to obtain a muzzle for Lacy, with which she complied.

She also claimed that Lacy had been constantly supervised since the second

incident and muzzled while outside. Nolan relayed her efforts to install a fence on

her property and indicated there were some obstacles in completing that task. She

explained that there was no survey of her property on record and she was informed

by the zoning authorities that her property would have to be resurveyed. She also

contemplated linking a fence to some of her neighbors’ existing fences but

explained that one of her neighbors had recently sold the property and she would

have to wait to discuss the matter with the new owner. As a result, Nolan claimed

these setbacks had prevented her from installing a fence on her property.


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       {¶8} In closing statements, the prosecutor explained that the victim, Ann

B., decided to install a fence around the rear perimeter of her property after the

second offense and submitted a copy of the invoice. The prosecutor claimed that

Ann B. installed the fence because Nolan had failed to install her own and

requested that the trial court order Nolan to pay for Ann B.’s fence in the amount

of $3,160.00, along with other recommendations, which were considered by the

trial court. The trial court then sentenced Nolan to the following.

       1.) The Defendant shall be sentence [sic] to 30 days in jail with
       20 days suspended. If fence is completed within 90 days, 10 day
       jail sentence shall be suspended.

       2.) The Defendant shall be fined 250.00 with 100.00 suspended,
       plus court costs.

       3.) The Defendant shall be placed on 3 years community
       control with all the ordinary terms and conditions related
       thereto, with reporting probation.

       4.) During the period of CCS the Defendant shall obey the laws
       of the State of Ohio and its subdivisions.

       5.) The Defendant shall make restitution to [sic] through the
       Municipal Court Probation Department which shall be
       forwarded to the victim for the veterinary bill of $850.30 within
       30 days.

       6.) The Defendant shall make restitution to [sic] through the
       Municipal Court Probation Department which shall be
       forwarded to the victim [sic] for the costs incurred to protect the
       victim [sic] dog from further attacks associated with their having
       to complete their rear yard fencing in the amount of $3,160.00
       which shall be paid at the rate of no less than $200.00 per month
       starting within 30 days of the date of this Entry.

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Case No. 9-15-48



      7.) The Defendant shall stay no less than 150 feet away from
      the victims, Foxey [sic], Ann [B.], Sarah [B.] or their family
      members.

      8.) Within 24 hours (by 1 p.m. Saturday November 14, 2015)
      the Defendant shall place her canine Lacey [sic] at another safe
      environment which has a proper fence to keep the dog confined.
      Whenever the dog is off the premises of its placement or its
      habitat it shall be muzzled and on a short tether maintained by
      an adult.

      9.) The dog shall not return to the Defendant’s residence until
      she has constructed an adequate fence of no less than 4 feet in
      height from which the dog may not escape. Whenever the dog is
      off the premises of its placement or its habitat it shall be muzzled
      and on a short tether maintained by an adult.

(Doc. No. 21).

      {¶9} Nolan filed this appeal, asserting the following assignments of error.

                      ASSIGNMENT OF ERROR NO. I

      THE TRIAL COURT ABUSED ITS DISCRETION BY
      FAILING TO FOLLOW R.C. 955.99 IN SENTENCING KELLI
      NOLAN.

                     ASSIGNMENT OF ERROR NO. II

      THE TRIAL COURT ABUSED ITS DISCRETION IN
      ORDERING KELLI NOLAN TO PAY $3,160 FOR COSTS
      INCURRED BY ANN [B.] TO COMPLETE A FENCE ON
      HER PROPERTY.

                     ASSIGNMENT OF ERROR NO. III

      THE TRIAL COURT ABUSED ITS DISCRETION IN
      SENTENCING KELLI  NOLAN   TO  COMMUNITY


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Case No. 9-15-48


       CONTROL SANCTIONS, WITH THREE (3) YEARS OF
       REPORTING PROBATION.

                      ASSIGNMENT OF ERROR NO. IV

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       FAILING TO FOLLOW THE SENTENCING PRINCIPALS
       AND GUIDELINES PROVIDED UNDER R.C. 2929.21 AND
       2929.22.

       {¶10} Due to the fact that Nolan’s assignments of error each challenge a

specific component of the trial court’s sentence, we elect to address them together

for ease of discussion.

       {¶11} On appeal, Nolan asserts several errors with the trial court’s sentence

and claims the trial court exceeded its authority in imposing its sentence.

Specifically, Nolan argues that the trial court failed to properly consider the

purposes and principals of misdemeanor sentencing when it imposed a suspended

thirty-day jail sentence, three years of community control with reporting probation

and other conditions—which included building a fence and rehoming Lacy until

the fence is complete, and ordered her to pay restitution to Ann B. for the cost of

installing a fence.

       {¶12} We review a trial court’s sentence on a misdemeanor violation under

an abuse of discretion standard. R.C. 2929.22; State v. Frazier, 158 Ohio App.3d

407, 2004-Ohio-4506, ¶ 15 (1st Dist.). An abuse of discretion implies that the trial

court’s decision was unreasonable, arbitrary, or unconscionable. State v. Adams,


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Case No. 9-15-48


62 Ohio St.2d 151, 157 (1980). 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. State v. Crable, 7th Dist. Belmont No. 04 BE 17, 2004-Ohio-6812, ¶ 24.

Section 2929.22(A) of the Revised Code gives the trial court discretion in

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

sentencing. Section R.C. 2929.22(B) of the Revised Code 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.

                   Jail Term and Community Control Sanctions

      {¶13} Nolan was convicted of failure to confine her dog in violation of

R.C. 955.22, which states:

      (C) 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:

      (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;

      (2) Keep the dog under the reasonable control of some person.




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      {¶14} In addition to the statutes governing misdemeanor sentencing, R.C.

955.99 provides for penalties corresponding to the offense and states as follows:

      (E)(1) Whoever violates section 955.21 of the Revised Code,
      violates division (B) of section 955.22 of the Revised Code, or
      commits a violation of division (C) of section 955.22 of the
      Revised Code that involves a dog that is not a nuisance dog,
      dangerous dog, or vicious dog shall be fined not less than twenty-
      five dollars or more than one hundred dollars on a first offense,
      and on each subsequent offense shall be fined not less than
      seventy-five dollars or more than two hundred fifty dollars and
      may be imprisoned for not more than thirty days.

      (2) In addition to the penalties prescribed in division (E)(1) of
      this section, if the offender is guilty of a violation of division (B)
      of section 955.22 of the Revised Code or a violation of division
      (C) of section 955.22 of the Revised Code that involves a dog that
      is not a nuisance dog, dangerous dog, or vicious dog, the court
      may order the offender to personally supervise the dog that the
      offender owns, keeps, or harbors, to cause that dog to complete
      dog obedience training, or to do both.

      {¶15} The penalty statute, R.C. 955.99, clearly authorizes a court to impose

a jail sentence of not more than thirty days, as does the misdemeanor sentencing

statute, R.C. 2929.24(A)(4), which permits a court to impose the same sentencing

range for a misdemeanor of the fourth degree, the level of offense implicated in

this case. Moreover, R.C. 2929.25 expressly authorizes a court to “[i]mpose a jail

term under section 2929.24 of the Revised Code from the range of jail terms

authorized under that section for the offense, suspend all or a portion of the jail

term imposed, and place the offender under a community control sanction or

combination of community control sanctions authorized under section 2929.26,

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2929.27, or 2929.28 of the Revised Code.” R.C. 2929.25(A)(1)(b). The statute

further provides that “[t]he duration of all community control sanctions imposed

upon an offender and in effect for an offender at any time shall not exceed five

years.” R.C. 2929.25(A)(2). In addition, R.C. 2929.27(A)(6) specifically permits

a trial court to impose a term of basic probation supervision as a community

control sanction.

       {¶16} In the instant case, Nolan argues that the trial court’s sentence was

excessive and not supported by the record. Specifically, she claims that the trial

court failed to consider mitigating factors which indicate that a lesser sentence in

her case was appropriate. As previously mentioned, R.C. 2929.22 guides a court’s

consideration in imposing a misdemeanor sentence and states, in pertinent part:

       (B)(1) In determining the appropriate sentence for a
       misdemeanor, the court shall consider all of the following
       factors:

       (a) The nature and circumstances of the offense or offenses;

       (b) Whether the circumstances regarding the offender and the
       offense or offenses indicate that the offender has a history of
       persistent criminal activity and that the offender’s character and
       condition reveal a substantial risk that the offender will commit
       another offense;

       (c) Whether the circumstances regarding the offender and the
       offense or offenses indicate that the offender’s history,
       character, and condition reveal a substantial risk that the
       offender will be a danger to others and that the offender's
       conduct has been characterized by a pattern of repetitive,


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Case No. 9-15-48


      compulsive, or aggressive behavior with heedless indifference to
      the consequences;

      (d) Whether the victim’s youth, age, disability, or other factor
      made the victim particularly vulnerable to the offense or made
      the impact of the offense more serious;

      (e) Whether the offender is likely to commit future crimes in
      general, in addition to the circumstances described in divisions
      (B)(1)(b) and (c) of this section.

      ***

      (2) In determining the appropriate sentence for a
      misdemeanor, in addition to complying with division (B)(1) of
      this section, the court may consider any other factors that are
      relevant to achieving the purposes and principles of sentencing
      set forth in section 2929.21 of the Revised Code.

      (C) Before imposing a jail term as a sentence for a
      misdemeanor, a court shall consider the appropriateness of
      imposing a community control sanction or a combination of
      community control sanctions under sections 2929.25, 2929.26,
      2929.27, and 2929.28 of the Revised Code. A court may impose
      the longest jail term authorized under section 2929.24 of the
      Revised Code only upon offenders who commit the worst forms
      of the offense or upon offenders whose conduct and response to
      prior sanctions for prior offenses demonstrate that the
      imposition of the longest jail term is necessary to deter the
      offender from committing a future crime.

      (D)(1) A sentencing court shall consider any relevant oral or
      written statement made by the victim, the defendant, the defense
      attorney, or the prosecuting authority regarding sentencing for a
      misdemeanor. This division does not create any rights to notice
      other than those rights authorized by Chapter 2930. of the
      Revised Code.




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       {¶17} At the sentencing hearing, the trial court heard testimony from

people in the neighborhood who expressed safety concerns with the manner in

which Nolan attempted to confine Lacy. One witness stated that he altered his

walking route to specifically avoid Nolan’s property and warned his grandchildren

to stay clear of her home because of Nolan’s failure to competently restrain Lacy.

In addition, the trial court reviewed pictures of Foxy’s injuries, which were severe

and required five consecutive days of veterinary care. The trial court also received

reports that since the second attack on Foxy, and while the case was pending, Lacy

had been observed unrestrained and without a muzzle—which violated the trial

court’s instruction given at a pre-trial.

       {¶18} When the trial court solicited her position on these facts, Nolan

claimed she always tethered Lacy outside and expressed her confusion as to how

Lacy broke free on the second occasion she attacked Foxy. The trial court pressed

Nolan regarding the testimony which indicated that Lacy had been observed

untethered and not muzzled since the second attack. Nolan denied the veracity of

the witness’ statements and became argumentative with the trial court over its

assessment of the witness’ credibility. However, Nolan also indicated that other

adults, such as her father and her boyfriend, had handled Lacy when she was not at

home and perhaps they did not follow the court’s protocol, but she could not say

with certainty.


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       {¶19} Nolan     further   became    defensive    when     discussing   Lacy’s

temperament and characterized Foxy as an aggressive dog despite the fact that on

both occasions Lacy attacked Foxy while Foxy was tethered in Ann B.’s front yard

and Lacy was unconfined. Nolan also attempted to divert the focus from Lacy and

claim that many other dogs were aggressive and ran the neighborhood unconfined.

Finally, the trial court discussed the fact Nolan had indicated at a pre-trial in June

that she was going to install a fence on her property to more securely confine

Lacy. The trial court expressed its dismay with the fact that at the November

sentencing hearing Nolan had not taken any affirmative steps to follow through

with her representations regarding the installation of the fence on her property and

had only provided excuses as to why the installation had yet to occur.

       {¶20} Moreover, we note that even though Nolan expressed concern about

Foxy’s well-being after the second attack, the record supports the trial court’s

determination that Nolan did not take accountability for her failure to adequately

confine Lacy and to comprehend the serious nature of the circumstances which

should have prompted Nolan to take immediate action and significantly adjust her

practices of confining Lacy to prevent the repetition of the same event in future.

Thus, we find no abuse of discretion in the trial court’s decision to impose a

suspended jail term and three years of community control sanctions.




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         {¶21} Nolan also asserts that the trial court was without the authority to

impose certain community control sanctions. Specifically, Nolan takes issue with

the trial court requiring her to install a fence on her property and remove Lacy

from her home until she completes the project. She also objects to the trial court

ordering her to keep Lacy muzzled and on a short tether maintained by an adult

when she is off Nolan’s property. Nolan contends that the trial court is limited to

imposing the penalties described in R.C. 955.99(E) and claims the trial court’s

sentence is misguided because it erroneously imposed restrictions for confinement

akin to those outlined in R.C. 955.22(D) for “dangerous dogs,” which Lacy is not.2

         {¶22} Notably, Nolan has not provided us with any authority to substantiate

her position that the trial court is limited in this case to only imposing the penalties

listed in R.C. 955.99(E). To the contrary, R.C. 2929.27(C) provides that “the

court imposing a sentence for a misdemeanor, other than a minor misdemeanor,

upon an offender who is not required to serve a mandatory jail term may impose

any other sanction that is intended to discourage the offender or other persons

from committing a similar offense if the sanction is reasonably related to the

overriding purposes and principles of misdemeanor sentencing.”                                      Thus, the

sentencing court can impose additional conditions aimed at preserving the interests

of justice, protection of the community, and the rehabilitation of the offender. In

2
  See R.C. 955.11(A)(1)(a)(defining a “dangerous dog” as a dog that, without provocation (i) Caused
injury, other than killing or serious injury, to any person; (ii) Killed another dog; or (iii) Been the subject of
a third or subsequent violation of division (C) of section 955.22 of the Revised Code).

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describing conditions of probation, a term then used to describe suspended

sentences for misdemeanors, the Supreme Court of Ohio in State v. Jones stated

that “courts should consider whether the condition [of probation] (1) is reasonably

related to rehabilitating the offender, (2) has some relationship to the crime of

which the offender was convicted, and (3) relates to the conduct which is criminal

or reasonably related to future criminality and serves the statutory ends of

probation.” 49 Ohio St.3d 51, 53 (1990).

       {¶23} Section 955.22(C) of the Revised Code, the statute delineating the

offense, states that the owner of a dog shall (1) keep the dog “confined or

restrained upon the premises * * * by a leash, tether, adequate fence, supervision,

or secure enclosure to prevent escape” or (2) “Keep the dog under the reasonable

control of some person.”      Id.   The record establishes that Nolan failed to

effectively utilize the methods of confinement by leash, tether or supervision (by

the owner or other person) to keep Lacy on her property. The remaining methods

of confinement mentioned in the statute are adequate fencing or a secure

enclosure. Nolan represented to the trial court that she intended to install adequate

fencing on her property to prevent Lacy from escaping in the future. However,

Nolan failed to take the necessary steps to accomplish this task. As a result, the

trial court imposed a thirty-day jail sentence with twenty days suspended upon

Nolan. The trial court suspended the last ten days of the jail term upon the


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Case No. 9-15-48


specific condition that Nolan install a fence within 90 days of the judgment in

accordance with her representations to the court.

       {¶24} In addition, the record further indicates that Lacy had twice, and

apparently unprovoked, attacked the same dog tethered in a neighbor’s yard,

which reasonably justifies the trial court’s concerns regarding Lacy’s potentially

aggressive nature and substantiates the additional security provided by the

conditions on Lacy’s placement until the fence is completed as well as the

increased restrictions of her handling when she off Nolan’s property.

       {¶25} As previously discussed, R.C. 2929.25 authorizes a sentencing court

to impose a jail term, suspend all or a portion of the jail term, and place the

offender under a community control sanction or combination of community

control sanctions. Given these facts, we cannot say that the trial court abused its

discretion in imposing a thirty-day jail term, suspended on Nolan’s compliance

with certain directives, and three years of community control with reporting

probation. Moreover, we find that the community control sanctions related to

Nolan’s confinement and handling of Lacy clearly bear a relationship to the

offense at issue, are related to rehabilitating Nolan, and are fashioned to prevent

future offenses of failing to confine Lacy. Accordingly, we overrule Nolan’s first,

third, and fourth assignments of error.




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                                    Restitution

       {¶26} Nolan also claims that the trial court erred in assessing the amount of

restitution she must pay to Ann B. Section 2929.28 of the Revised Code governs

financial sanctions, including restitution in misdemeanor cases, and states in

relevant part:

       (A) In addition to imposing court costs pursuant to section
       2947.23 of the Revised Code, the court imposing a sentence upon
       an offender for a misdemeanor, including a minor misdemeanor,
       may sentence the offender to any financial sanction or
       combination of financial sanctions authorized under this section.
       If the court in its discretion imposes one or more financial
       sanctions, the financial sanctions that may be imposed pursuant
       to this section include, but are not limited to, the following:

       (1) Unless the misdemeanor offense is a minor misdemeanor or
       could be disposed of by the traffic violations bureau serving the
       court under Traffic Rule 13, restitution by the offender to the
       victim of the offender’s crime or any survivor of the victim, in an
       amount based on the victim’s economic loss. The court may not
       impose restitution as a sanction pursuant to this division if the
       offense is a minor misdemeanor or could be disposed of by the
       traffic violations bureau serving the court under Traffic Rule 13.
       If the court requires restitution, the court shall order that the
       restitution be made to the victim in open court or to the adult
       probation department that serves the jurisdiction or the clerk of
       the court on behalf of the victim.

       If the court imposes restitution, the court shall determine the
       amount of restitution to be paid by the offender. If the court
       imposes restitution, the court may base the amount of restitution
       it orders on an amount recommended by the victim, the
       offender, a presentence investigation report, estimates or
       receipts indicating the cost of repairing or replacing property,
       and other information, provided that the amount the court orders
       as restitution shall not exceed the amount of the economic loss

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      suffered by the victim as a direct and proximate result of the
      commission of the offense. If the court decides to impose
      restitution, the court shall hold an evidentiary hearing on
      restitution if the offender, victim, or survivor disputes the
      amount of restitution. If the court holds an evidentiary hearing,
      at the hearing the victim or survivor has the burden to prove by
      a preponderance of the evidence the amount of restitution
      sought from the offender.

      All restitution payments shall be credited against any recovery
      of economic loss in a civil action brought by the victim or any
      survivor of the victim against the offender. * * *

      {¶27} By enacting R.C. 2929.28(A), the state legislature limited a trial

court’s authority to impose restitution as part of a criminal sentence for

misdemeanor convictions. See State v. Dremsek, 5th Dist. Delaware No. 09 CAC

020010, 2009-Ohio-6437, ¶¶ 18-19. The statute permits the trial court to order

restitution for economic loss suffered by the victim for certain misdemeanor

offenses, provided the amount of restitution “shall not exceed the amount of the

economic loss suffered by the victim as a direct and proximate result of the

commission of the offense.” R.C. 2929.28(A)(1). “Economic loss” is statutorily

defined as “any economic detriment suffered by a victim as a direct and proximate

result of the commission of an offense * * *.” R.C. 2929.01(L).

      {¶28} In the case sub judice, the trial court’s restitution order consisted of

two parts: (1) $850.30 for the veterinary bill Ann B. incurred as a result of the

second attack on Foxy; and (2) $3,160.00 which was the amount Ann B. spent to

install a fence around the rear perimeter of her property three months after the

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Case No. 9-15-48


second offense occurred. On appeal, Nolan appears to concede that the veterinary

bill was a direct and proximate result of the commission of the offense—i.e.,

Nolan failing to confine Lacy. However, Nolan quarrels with the trial court’s

order of restitution regarding Ann B.’s fence. Specifically, Nolan argues that the

installation of a fence months after the offense does not meet the statutory

definition of economic loss suffered by Ann B. as a direct and proximate result of

the commission of the offense.

       {¶29} In this instance, we find that Nolan’s arguments have merit with

respect to the trial court’s restitution order regarding Ann B.’s fence. The record

fails to establish that Ann B.’s subsequent decision to install a fence around the

rear portion of her property constituted an economic detriment suffered as a direct

and proximate result of Nolan’s failure to confine Lacy. This is true especially in

light of the fact that Foxy was tied in the front yard when the attacks occurred and

that the rear perimeter fence was installed three months after the second attack.

Accordingly, we find that the trial court erred in including the $3,160.00 for the

installation of Ann B.’s fence in the restitution order. To this extent only, the

judgment is reversed and the second assignment of error is sustained.

       {¶30} For all these reasons, the first, third, and fourth assignments of error

are overruled and the second assignment of error is sustained. The judgment is




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affirmed in part and reversed in part and the cause is remanded for further

proceedings consistent with this opinion.

                                                 Judgment Affirmed in Part,
                                                      Reversed in Part and
                                                         Cause Remanded

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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