854 N.E.2d 589 (Ohio Juv. 2004), DL 04106400, In re R.R.

Docket Nº:DL 04106400.
Citation:854 N.E.2d 589, 138 Ohio Misc.2d 9, 2004-Ohio-7364
Opinion Judge:SIKORA, Judge.
Party Name:In re R.R.
Attorney:William D. Mason, Cuyahoga County Prosecuting Attorney, and Thomas J. Kelly, Assistant Prosecuting Attorney, for the state of Ohio. Robert L. Tobick, Chief Public Defender, and John Patrick Hyland, Assistant Public Defender, for the juvenile.
Case Date:November 08, 2004
Court:County Court of Ohio
 
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Page 589

854 N.E.2d 589 (Ohio Juv. 2004)

138 Ohio Misc.2d 9, 2004-Ohio-7364

In re R.R.

No. DL 04106400.

Juvenile Court of Cuyahoga County, Ohio.

Nov. 8, 2004

William D. Mason, Cuyahoga County Prosecuting Attorney, and Thomas J. Kelly,

Page 590

Assistant Prosecuting Attorney, for the state of Ohio.

Robert L. Tobick, Chief Public Defender, and John Patrick Hyland, Assistant Public Defender, for the juvenile.

SIKORA, Judge.

BACKGROUND

{¶ 1} On June 13, 2004, the Cleveland Metropolitan Housing Authority ("CMHA") police filed a one-count complaint alleging that R.R. had violated R.C. 2903.11(A)(2), felonious assault, a felony of the second degree if committed by an [138 Ohio Misc.2d 10] adult. During trial on August 31, 2004, the victim testified that at a public park, the juvenile defendant fired two shots from a BB gun, one striking the victim in the back and the other in the leg, neither penetrating the fabric of his clothing. On cross-examination, the victim testified further that he was unharmed and did not seek medical attention because the encounter left only a superficial mark. Police never recovered the BB gun in question. The arresting officer testified as to the character of BB or pellet guns in general, suggesting that certain kinds of BB or pellet guns may possess the capability of inflicting death, but that here no ballistic testing was conducted. The state rested, and the defense moved to dismiss pursuant to Crim.R. 29. This court overruled the motion, and the matter was continued to September 29, 2004, for adjudication and disposition. Each side was asked to submit briefs on whether a BB gun falls within the purview of R.C. 2923.11, defining "deadly weapon."

LAW

{¶ 2} R.C. 2903.11 provides:

{¶ 3} "(A) No person shall knowingly do either of the following:

{¶ 4} " * * *

{¶ 5} "(2) Cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance."

{¶ 6} The evidence in the instant case does not establish that the BB gun used by the defendant was of the same character as any "dangerous ordnance" listed in R.C. 2923.11(K). Thus, the issue before this court is whether the BB gun used by the defendant may be considered a "deadly weapon" under R.C. 2923.11(A). A deadly weapon is defined in R.C. 2923.11(A) as "any instrument, device, or thing...

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