Court of Appeals of Ohio, Eleventh District, Lake
Criminal Appeal from the Willoughby Municipal Court, Case No.
2018 CRB 01440.
Jeffrey Holland and DanaMarie Kristyna Pannella, Holland and
Muirden, (For Plaintiff-Appellee).
Christopher J. Boeman, (For Defendant-Appellant).
On March 7, 2018, Humane Agent, Leanne Pike, filed a
Complaint in Willoughby Municipal Court against Nathan
Brewer, charging him with two counts of Cruelty against
Companion Animals, a misdemeanor of the first degree in
violation of R.C. 959.131(B) (Count 1) and a misdemeanor of
the second degree in violation of R.C. 959.131(D)(1) (Count
On May 30, 2018, Brewer was arraigned and entered a plea of
Brewer was tried before a jury on October 23, 2018. The
following testimony was given on behalf of the prosecution:
Lee Stitt, a case worker for Signature Health, visited a
client, Amanda Henry, at her home on 31507 Royalview Drive,
Willowick, on March 12, 2018. Stitt met with Henry and Brewer
in the living room while their child was eating potato chips
off a table. A dog, Majestic, was sitting near Stitt. During
the meeting, the dog took a chip from the child's hand.
Brewer jumped up and punched the dog with a closed fist hard
enough so that it yelped. The dog cowered, and Brewer grabbed
it by the collar or nape of the neck. He dragged the dog to
the back of the home. Although she could not see the dog, she
heard "violent movement" for thirty to forty-five
seconds. Brewer was swearing at the dog which was yelping and
whining and crying like it was in pain. Brewer returned to
the living room. Stitt concluded the appointment early and
contacted the Lake County Humane Society.
Leanne Pike, a Lake County Humane Agent, responded to
Stitt's call. Pike noted that Brewer had some history of
domestic violence and that there is a correlation between
domestic violence and animal cruelty. On March 28, Pike
visited the Willowick residence. Brewer answered the door.
Pike explained that she had received a complaint that someone
was abusing a dog at the house. Brewer responded that it was
not true and that she must have the wrong address. Pike asked
if Brewer had a dog. Brewer did not answer. Pike asked if he
was Nathan Brewer and he replied, "bye," and
slammed the door in her face. Pike returned to her office and
found an angry voice mail from Brewer. The message was that
some bitch had shown up at his house accusing him of abusing
his dog and he demanded to know who had made the complaint.
A few days later, a woman, identified as having a "close
relationship" with Brewer's mother, arrived at
Pike's office with concerns about his treatment of the
dog and reported that the dog had been injured on an earlier
occasion. Pike then contacted Brewer's mother who
confirmed the earlier injury.
On April 10, Pike obtained a search warrant and went to the
residence accompanied by four police officers. Pike impounded
the dog and secured it in a van. Brewer tried to approach the
van but was deflected by one of the officers. Pike then
entered the home to check on the welfare of other, reptilian
animals kept at the home. Brewer also reentered the home
swearing, yelling, and calling her names until she completed
her investigation. The dog was examined but no injuries were
The jury found Brewer guilty of both counts of Cruelty
against Companion Animals.
On October 30, 2018, the municipal court imposed a $100 fine
and 180 days in jail (165 suspended) for Count 1 and a $100
fine and 90 days in jail (25 suspended) for Count 2 in
addition to 24 months of Community Control Sanctions.
On November 29, 2018, Brewer filed a Notice of Appeal. On
appeal, he raises the following assignments of error:
"[1.] The State's comments during opening statement
referencing Mr. Brewer's expected testimony violated Mr.
Brewer's Fifth Amendment right against
"[2.] Mr. Brewer was denied his Sixth Amendment right to
effective assistance of counsel when Defense Counsel did not
object a single time after the State repeatedly introduced
inadmissible and prejudicial testimony against him."
In his first assignment of error, Brewer argues the
prosecutor violated his Fifth Amendment right against
self-incrimination by "set[ting] up the expectation in
the jury's mind that Mr. Brewer would be
testifying," thereby "negat[ing] the
Defendant's constitutional right not to testify."
Appellant's brief at 12.
"Comment by the trial court or by the prosecutor upon
the failure of an accused to testify in a criminal proceeding
against him violates the self-incrimination clause of the
Fifth Amendment made applicable to the states by the
Fourteenth Amendment." State v. Lynn, 5 Ohio
St.2d 106, 214 N.E.2d 226 (1966), paragraph one of the
syllabus. Such comments are considered as a type of
prosecutorial misconduct. See, e.g., State v.
Vaughn, 11th Dist. Ashtabula No. 2018-A-0045,
2019-Ohio-268, ¶ 37. The Ohio Supreme Court has
described the relevant inquiry as "whether the language
used was manifestly intended or was of such character that
the jury would naturally and necessarily take it to be a
comment on the failure of the accused to testify."
(Citation omitted.) State v. Ferguson, 5 Ohio St.3d
160, 162-163, 450 N.E.2d 265 (1983); State v. Webb,
70 Ohio St.3d 325, 328-329, 638 N.E.2d 1023 (1994). The
standard of review is whether the prosecutor's misconduct
has denied the accused the fundamental right to a fair trial.
State v. Iacona, 93 Ohio St.3d 83, 104, 752 N.E.2d
Despite having knowledge that Brewer would not be testifying
at trial, the prosecutor stated as follows during opening
We are saying under count number one, the first count, we are
saying that the defendant knowingly committed an act of
cruelty, unjustifiable, unnecessary causing pain. But, we
expect the defendant to say, you know what, I was just
disciplining the dog. That's what it was, it was a
discipline. And if I went too far, okay, but I'm a great
guy and I just maybe went a little too far. If that's
what you think, the[n] we have a second charge that's
negligence, which is a substantial lapse of due care. If you
believe, if they advance the story that the defendant was
just engaging in some kind of reasonable kind of training and
discipline for his animal and you think he went overboard a
little bit, that's negligence folks, if it caused
unnecessary or unjustifiable pain or suffering. That's
why there are two charges.
Brewer maintains that the prosecutor's statement before
the jury "to expect Mr. Brewer to testify and explain
his actions knowing that the Defendant would not be
testifying violated the Defendant's constitutional right
not to testify in the same way that a comment in closing
pointing out that the Defendant did not testify would be a
violation of Defendant's constitutional right not to
testify." Appellant's brief at 13. We disagree.
The prosecutor's reference to what he expected Brewer
"to say" rather than what he expected the defense
"to argue" was not manifestly intended to create
the impression that he would be testifying so that his
subsequent failure to testify would be impermissibly
construed by the jury as evidence of his guilt. In context,
the prosecutor was merely explaining the difference between
the two counts of the Complaint. Almost immediately, the
prosecutor clarified that the defense that Brewer was
disciplining the dog was a story that "they," i.e.
the defense, might advance as a justification for his
In fact, this is the defense that counsel for Brewer advanced
during his opening statement:
So you're going to hear then about a large, powerful
Pitbull, about a year old, and how this animal goes up to a
two-year-old child with curly brown hair and steals food from
her [sic]. This is certainly not appropriate behavior, not
behavior that Nathan wanted to see recurring over and over
again. So he attempted to remedy the situation.
Also significant is the fact that the prosecutor's
comments took place during opening, rather than closing,
argument. No reference to Brewer's failure to testify was
made in summation and no suggestion was made that the defense
failed to offer evidence in support of the theory that Brewer
was disciplining the dog. The prosecutor's reference as
to what he expected Brewer "to say" remained an
isolated comment made in the course of explaining the charges
rather than in argument as to what the evidence at trial
proved or failed to prove.
The first assignment of error is without merit.
In the second assignment of error, Brewer argues that he
received constitutionally ineffective assistance of counsel
in violation of the Sixth Amendment. He asserts "the
State (1) repeatedly asked leading questions and (2)
presented inadmissible hearsay testimony, (3) presented
inadmissible opinion testimony, (4) presented inadmissible
testimony regarding prior bad acts, and (5) presented
inadmissible expert witness testimony, over and over, without
[a single] objection by Defense Counsel." We agree.
To reverse a conviction for ineffective assistance of
counsel, the defendant must prove "(1) that
counsel's performance fell below an objective standard of
reasonableness, and (2) that counsel's deficient
performance prejudiced the defendant resulting in an
unreliable or fundamentally unfair outcome of the
proceeding." State v. Madrigal, 87 Ohio St.3d
378, 388-389, 721 N.E.2d 52 (2000), citing Strickland v.
Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984).
In reaching the conclusion that trial counsel's
performance deprived Brewer of a reliable or fundamentally
fair trial proceeding, we have recourse to the doctrine of
cumulative error. "Although violations of the Rules of
Evidence during trial, singularly, may not rise to the level
of prejudicial error, a conviction will be reversed where the
cumulative effect of the error deprives a defendant of the
constitutional right to a fair trial." State v.
DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987),
paragraph two of the syllabus. This court has recognized that
"[application of the doctrine is not limited to
violations of the Rules of Evidence." State v.
Burke, 11th Dist. Trumbull Nos. 2018-T-0032 and
2018-T-0035, 2019-Ohio-1951, ¶ 141, citing State v.
Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d
1112, ¶ 257. We offer no opinion as to whether any of
the specific instances of ineffective assistance discussed
below merits reversal of Brewer's convictions. Rather,
our holding rests on their cumulative effect.
Also significant to the issue of trial counsel's
performance is the fact that, on the day of trial, counsel
filed a Motion in Limine seeking to exclude evidence of
Brewer's "criminal history" and "alleged
other bad acts," and, in particular, "[a]ny
reference to any vet visits not stemming from * * * the March
12, 2018 incident." The Motion was argued prior to the
commencement of trial. The court refrained from making
definite rulings on counsel's requests. The court
acknowledged that, in the presentation of the State's
case in-chief, the prosecutor was "limited to the date
in question * * * unless there is something in the course of
the investigation that's relevant to that particular
[i.e., another] date." The court emphasized, however,
that "I can't rule on it until it starts coming
in." Again, in considering the admissibility of
Brewer's prior bad acts, the court reiterated "I
think I'm going to have to hear how it comes in, what
exactly is said before I can rule on it." It is
well-established that a ruling on a motion in limine does not
preserve the record for appeal and that it is necessary to
object and/or proffer as appropriate "when the issue
is actually reached and the context is developed at
trial" (Citation omitted.) State v. Grubb,
28 Ohio St.3d 199, 203, 503 N.E.2d 142 (1986). Counsel for
Brewer did not raise any objections at trial.
"Leading questions should not be used on the direct
examination of a witness except as may be necessary to
develop the witness' testimony." Evid.R. 611(C).
"A leading question is 'one that suggests to the
witness the answer desired by the examiner.'"
(Citation omitted.) State v. Drummond, 111 Ohio
St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 138;
State v. D'Ambrosio, 67 Ohio St.3d 185, 190, 616
N.E.2d 909 (1993) ("[a] leading question 'instructs
[the] witness how to answer or puts into his mouth words to
be echoed back'") (citation omitted). "However,
the trial court has discretion to allow leading questions on
direct examination." State v. Diar, 120 Ohio
St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 149.
The case worker, Stitt, described the underlying events as
I was speaking with Amanda, that was the first time meeting
Nathan, * * * and their son was eating chips off * * * the
small table in the living room * * * and the dog took the
chip from the baby's hand. And Nathan * * * c[a]me over
an punched the dog, brought the dog to the back of the home
and continued to beat the dog. The dog was whimpering. * * *
The dog was crying and Mr. Brewer was swearing at the dog.
There was a lot of violent movement.
The prosecutor ...