[Cite as State v. Brewer, 2020-Ohio-881.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. John W. Wise, P.J.
        Plaintiff-Appellee                   :       Hon. Craig R. Baldwin, J.
                                             :       Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
BRADLEY L. BREWER                            :       Case No. 2019 CA 0044
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2018-CR-0998 N




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    March 6, 2020




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOSEPH C. SNYDER                                     R. JOSHUA BROWN
38 South Park Street                                 32 Lutz Avenue
Mansfield, OH 44902                                  Lexington, OH 44904
Richland County, Case No. 2019 CA 0044                                                      2



Wise, Earle, J.

        {¶ 1} Defendant-Appellant, Bradley Brewer, appeals his May 2, 2019 conviction

in the Court of Common Pleas of Richland County, Ohio. Plaintiff-Appellee is state of

Ohio.

                         FACTS AND PROCEDURAL HISTORY

        {¶ 2} On November 6, 2018, appellant's adult son was out with three friends from

work. He had an 11:30 curfew. A few minutes past curfew, appellant texted his son and

told him to return home. The three friends drove him home. Upon arriving at the home,

one of the friends attempted to speak with appellant. Appellant yelled at the friend and

told all three friends to get off the property. The friends returned to the vehicle and parked

in the alleyway adjacent to the home, as they were concerned for their friend.

        {¶ 3} Eventually an altercation occurred between appellant and his son. The son

got into the vehicle with his friends and one of the friends called the police. Responding

to the scene was Mansfield Police Patrolman Paul Webb. He spoke with the son and his

friends out on the street. He then approached the house and attempted to speak with

appellant, but appellant was handling his dog, Jax. Patrolman Webb instructed appellant

to not release the dog. The dog got free and lunged at Officer Webb three times, one

time biting his right shoulder. Patrolman Webb fired his gun, striking the dog two times.

The dog survived.

        {¶ 4} Patrolman Webb and another officer that had arrived on the scene

attempted to arrest appellant, but appellant resisted and punched Patrolman Webb.

Eventually the officers were able to handcuff appellant and place him under arrest.
Richland County, Case No. 2019 CA 0044                                                    3


       {¶ 5} On December 11, 2018, the Richland County Grand Jury indicted appellant

on two counts of felonious assault in the first degree in violation of R.C. 2903.11(A)(1)

and (2), one count of assault in the fourth degree in violation of R.C. 2903.13, and one

count of obstructing official business in the fifth degree in violation of R.C. 2921.31. The

R.C. 2903.11(A)(1) felonious assault count was later amended to attempted felonious

assault in the second degree.

       {¶ 6} A jury trial commenced on April 2, 2019. At the end of the trial, appellant

moved for a Crim.R. 29 acquittal of the R.C. 2903.11(A)(2) felonious assault count. The

trial court denied the motion. The jury found appellant guilty as charged. By sentencing

entry filed May 2, 2019, the trial court sentenced appellant to an aggregate term of four

years in prison.

       {¶ 7} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶ 8} "THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION

FOR ACQUITTAL."

                                             I

       {¶ 9} In his sole assignment of error, appellant claims the trial court erred in

denying his motion for acquittal. We disagree.

       {¶ 10} Crim.R. 29 governs motion for acquittal.         Subsection (A) states the

following:
Richland County, Case No. 2019 CA 0044                                                  4


             The court on motion of a defendant or on its own motion, after the

      evidence on either side is closed, shall order the entry of a judgment of

      acquittal of one or more offenses charged in the indictment, information, or

      complaint, if the evidence is insufficient to sustain a conviction of such

      offense or offenses. The court may not reserve ruling on a motion for

      judgment of acquittal made at the close of the state's case.



      {¶ 11} The standard to be employed by a trial court in determining a Crim.R. 29

motion is set out in State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978),

syllabus: "Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of

acquittal if the evidence is such that reasonable minds can reach different conclusions as

to whether each material element of a crime has been proved beyond a reasonable

doubt."

      {¶ 12} Appellant challenges his conviction of felonious assault in the first degree

in violation of R.C. 2903.11(A)(2) which states: "No person shall knowingly * * * [c]ause

or attempt to cause physical harm to another or to another's unborn by means of a deadly

weapon or dangerous ordnance."        "Deadly weapon" as defined in R.C. 2923.11(A)

"means any instrument, device, or thing capable of inflicting death, and designed or

specially adapted for use as a weapon, or possessed, carried, or used as a weapon."

"Whether a weapon constitutes a deadly weapon depends on the facts and circumstances

of each particular case." In re Fortney, 162 Ohio App.3d 170, 2005-Ohio-3618, 832

N.E.2d 1257 (4th Dist.), ¶ 38. Dogs have been determined to be "deadly weapons" given

the facts and circumstances of the case. State v. Vinson, 8th Dist. Cuyahoga Nos. 87056,
Richland County, Case No. 2019 CA 0044                                                    5


87058, 87060, 2006-Ohio-3971; State v. Williams, 8th Dist. Cuyahoga No. 83402, 2004-

Ohio-4085.

       {¶ 13} Appellant argues his dog does not constitute a deadly weapon as defined

in R.C. 2923.11(A) because no evidence was presented that Jax was trained to be an

attack dog, kept as an attack dog, or had previously attacked anyone upon command.

       {¶ 14} After driving the son home, the three friends got out of the vehicle and one

of them attempted to speak with appellant who was standing outside. T. at 380-381.

Appellant ordered the three friends off his property, and threatened to go get Jax. T. at

385, 477-478, 564-566. They were scared because the dog was "known to be vicious."

T. at 385, 478, 568-569. Jax is a "shepherd/rot mix." T. at 828. The three friends testified

Jax was an aggressive dog, not playful or friendly. T. at 366-368, 472-473, 565-566.

       {¶ 15} After Patrolman Webb arrived, he spoke with the son and his friends and

then approached appellant to speak with him. T. at 628. Patrolman Webb observed

appellant attempting to open the outdoor dog kennel. T. at 631. Patrolman Webb told

appellant multiple times not to open the kennel door. T. at 627-628, 631-633. Several

witnesses testified appellant opened Jax's kennel and ordered the dog to "Get 'em." T.

at 423, 436, 454, 499, 580-581, 646, 710. It sounded like a command. T. at 499-500.

Jax then charged Patrolman Webb and lunged at him three times, one time biting him on

the shoulder. T. at 647-649, 653, 747-748, 751.

       {¶ 16} Appellant testified as Patrolman Webb was approaching, he was holding on

to Jax's collar and the dog started to pull away from him so he told his son to "come get

'em," the dog that is. T. at 838, 852-853, 866. Appellant testified the dog broke free from

his grasp. T. at 839, 866. He stated the dog lunged at Patrolman Webb because the dog
Richland County, Case No. 2019 CA 0044                                                       6


thought it was playtime. T. at 839. Patrolman Webb was carrying a flashlight and the

dog often played "flashlight tag" for a treat. T. at 839-840. Appellant described the dog

as playful, friendly, and very loving. T. at 833.

       {¶ 17} Following his arrest, appellant was taken to the hospital due to receiving

injuries in the altercations. While at the hospital, appellant told hospital personnel if

Patrolman Webb had not been trespassing, he would not have had to sic his dog on him.

T. at 798. Appellant also stated, "That's why I got the dog, to protect me. He did what he

was trained to do." T. at 533, 535, 798-799. Appellant admitted a 120 pound dog like

Jax could rip out a person's throat and kill them. T. at 884-885.

       {¶ 18} In denying appellant's motion for acquittal, the trial court stated the following

(T. at 915):



               The court will agree with the State in this matter. There are a lot of

       items, not, per se, deadly weapons, however, used in a certain context,

       obviously become so. The fact that the dog had not previously bitten

       anyone, no evidence of that or such like that. But the court does find in the

       light most favorable to the non-moving party that reasonable minds could

       come to the conclusion that the dog had been trained to attack another in

       order to protect the owner of that dog, so the court is going to overrule the

       Rule 29 motion at this time.



       {¶ 19} We concur with the trial court. The state presented sufficient evidence, via

appellant's own statements as well as witness testimony, to overcome the Crim.R. 29
Richland County, Case No. 2019 CA 0044                                                   7


standard. Testimony was presented that appellant gave an attack command, the dog

recognized the command, and the dog immediately attacked Patrolman Webb. In light of

this evidence, under a Crim.R. 29 standard, reasonable minds could have reached

different conclusions as to whether each material element of the crime of felonious assault

had been proven beyond a reasonable doubt, including whether Jax was used as a

"deadly weapon."

       {¶ 20} Upon review, we find sufficient evidence was presented to survive a Crim.R.

29 motion and have the matter decided by the jury. The trial court did not err in denying

appellant's motion for acquittal.

       {¶ 21} The sole assignment of error is denied.

       {¶ 22} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Wise, John, P.J. and

Baldwin, J. concur.




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