[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 : O P I N I O N

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 44904Richland County, Case No. 2019 CA 0044 2

Wise, Earle, J. {¶ 1} Defendant-Appellant, Bradley Brewer, appeals his May 2, 2 019 conviction in the Court of Common Pleas of Richland County, Ohio. Plainti ff-Appellee is state of Ohio. FACTS AND PROCEDURAL HISTORY {¶ 2} On November 6, 2018, appellant's adult son was out with t hree friends from work. He had an 11:30 curfew. A few minutes past curfew, appe llant texted his son and told him to return home. The three friends drove him home. Up on arriving at the home, one of the friends attempted to speak with appellant. Appellan t yelled at the friend and told all three friends to get off the property. The friends re turned to the vehicle and parked in the alleyway adjacent to the home, as they were concerned fo r 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 ca lled the police. Responding to the scene was Mansfield Police Patrolman Paul Webb. He spok e with the son and his friends out on the street. He then approached the house and at tempted 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 th e scene attempted to arrest appellant, but appellant resisted and punch ed Patrolman Webb. Eventually the officers were able to handcuff appellant and pla ce him under arrest.Richland County, Case No. 2019 CA 0044 3 {¶ 5} On December 11, 2018, the Richland County Grand Jury indi cted appellant on two counts of felonious assault in the first degree in viola tion 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 v iolation 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 t he trial, appellant moved for a Crim.R. 29 acquittal of the R.C. 2903.11(A)(2) felo nious 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 t his 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 tri al 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 j udgment of acquittal of one or more offens es charged in the indictment, in formation, or complaint, if the evidence is insufficient to sustain a convict ion of such offense or offenses. The court may not reserve ruling on a mot ion for judgment of acquittal made at the close of the state's case.

{¶ 11} The standard to be employed by a trial court in determin ing 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 a n entry of judgment of acquittal if the evidence is such that reasonable minds can rea ch different conclusions as to whether each material element of a crime has been proved bey ond 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 sha ll knowingly * * * [c]ause or attempt to cause physical harm to another or to another's un born 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 d eath, and designed or specially adapted for use as a weapon, or possessed, carried, o r used as a weapon." "Whether a weapon constitutes a deadly weapon depends on the fa cts 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 we apon as d efined in R.C. 2923.11(A) because no evidence was presented that Jax w as trained to be an attack dog, kept as an attack dog, or had previously attacked a nyone 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 outs ide. T. at 380-381. Appellant ordered the three friends off his property, and threa tened to go get Jax. T. at 385, 477-478, 564-566. They were scared because the dog was "k nown to be vicious." T. at 385, 478, 568-569. Jax is a "shepherd/rot mix." T. at 828. The three friends tes tified 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. Patro lman Webb observed appellant attemp ting to open t he outdoor dog k ennel. T. at 631 . Patrolman Webb told appellant multiple times not to open the kennel door. T. at 62 7-628, 631-633. Several witnesses testified appellant opened Jax's kennel and ordered t he dog to "Get 'em." T. at 423, 436, 454, 499, 580-581, 646, 710. It sounded like a co mmand. 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, h e 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 tes tified the dog broke free from his grasp. T. at 839, 866. He stated the dog lunged at Patrol man Webb because the dogRichland 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 hospita l 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, t o 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 884-8 85. {¶ 18} In denying appellant's motion for acquittal, the trial c ourt 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 d oes find in the light most favorable to the non-moving party that reasonable mi nds 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 t o overrule the Rule 29 motion at this time.

{¶ 19} We concur with the trial court. The state presented suf ficient evidence, via appellant's own statements as well as witness testimony, to ove rcome the Crim.R. 29Richland County, Case No. 2019 CA 0044 7
standard. Testimony was presented that appellant gave an attac k command, the dog recognized the command, and the dog immediately attacked Patrol man Webb. In light of this evidence, under a Crim.R. 29 standard, reasonable minds co uld have reached different conclusions as to whether each material element of th e crime of felonious assault had been proven beyond a reasonable doubt, including whether Ja x was used as a "deadly weapon." {¶ 20} Upon review, we find sufficient evidence was presented t o survive a Crim.R. 29 motion and have the matter decided by the jury. The trial c ourt 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 Co unty, Ohio is hereby affirmed. By Wise, Earle, J. Wise, John, P.J. and Baldwin, J. concur.

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