ASHLAND — Can a person be charged with failure to confine a vicious dog if the dog was not declared vicious before it was set loose?

An Ashland court is waiting on the Ohio Supreme Court to decide.

The state’s highest court is in the process of settling conflicting appeals court rulings on the matter, Ashland Municipal Court Judge John Good said Friday. 

In the meantime, the case against Ashlander Sharon Etzwiler will have to be put on hold. 

Etzwiler faces to two counts of failure to confine a vicious dog. The charges stem from an Aug. 2 incident in which Etzwiler’s two dogs — both large, male American bulldog-boxer mixes — reportedly attacked two women and two men on Foxmoor Lane in Ashland.

One of the victims was hospitalized for several days due to the severity of her injuries. The other three victims were also taken to the hospital for dog bite injuries, according to an Ashland Police report. 

Failure to confine a dog is only a minor misdemeanor, but following the incident, Ashland County Dog Warden Tom Kosht declared the dogs to be vicious. 

“Failing to confine vicious dog makes it a first degree misdemeanor, a much, much more serious offense,” Good said. “There’s a legal question over whether that can be done, whether dogs can be declared vicious retroactively after they fail to be confined.”

Good said the Ohio Fifth District Court of Appeals, which covers Ashland County, has ruled that dogs can be retroactively declared vicious. But another appeals court in the state came to the opposite conclusion, calling that practice unconstitutional. 

“The Ohio Supreme Court is right now in the process of deciding whether, in those circumstances, a person can be charged with a first degree misdemeanor,” Good said. “Really, until the supreme court decides that, there’s little that can be done in this case because that legal issue is unsettled.”

The outcome of the supreme court case will determine whether Etzwiler can be tried for a first degree misdemeanor or whether the charge must be reduced to failure to confine a dog, which is a minor misdemeanor. 

The first set of briefs from the appellant must be filed with the supreme court by Sept. 17. After that, the other side will have an opportunity to respond. The court will then hear oral arguments and issue a written decision, Good said. 

Hoping that process will be completed in the next few months, Good scheduled a pretrial in Etzwiler’s case for 1 p.m. Dec. 10.

“What about the dogs?” Calvin Bate, one of the victims of the alleged attack, asked the judge. 

For now, Good said, the dogs remain in the custody of the Ashland County Dog Warden. 

What happens to the dogs long-term may hinge on the supreme court’s ruling. 

“If this ends up being upheld by the supreme court to be a minor misdemeanor, this court will not be able to order those dogs destroyed,” Good said. “That’s not available under the statute.”

On the other hand, if the supreme court finds that the alleged crime is a first degree misdemeanor and if Etzwiler is convicted, Good would have the power to order that the dogs be put down. 

While he understands the process, Bate said he’s not fully satisfied with that answer. 

“What are residents’ rights– the neighbors of these dogs? Don’t we have a right to be safe in our own neighborhood?” he asked. 

Bate, who suffered injuries to his hand, wrist and leg after intervening to help one of the women who allegedly was attacked, said he is very concerned about what could happen if the dogs are returned to Etzwiler. 

“I think she deserves to be criminally held responsible. This is not a dog issue. It’s not a breed issue. It’s an owner issue,” Bate said.