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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

CARRYING CONCEALED WEAPONS (010)

Also see Firearm Specifications; Weapons Offenses; Deadly Weapons.

 

Concealment

Knives

Guns

Defenses

Concealed carry permits

Other issues

 

R.C. 2923.12 -- Carrying concealed weapons.

R.C. 2923.11(A) -- "Deadly weapon" defined.

R.C. 2923.11(B) -- "Firearm" defined (must be capable of expelling a projectile).

R.C. 2923.11(K) -- "Dangerous ordinance" defined.

Concealment

In re Robert R., 186 Ohio App. 3d 389, 2009-Ohio-3644 – Federal Marshals forced their way into a house to make an arrest. Juvenile had opened the door a crack, but pushed back trying to keep marshals out. When the door was finally pushed open he was pinned against the wall. Marshall then noticed two handguns behind the door. The guns only became concealed when the door was fully open. Since the juvenile had resisted this, concealment was not by his own act. Concealment was not proven.

State v. Pettit (1969), 20 Ohio App. 2d 170, 173-174 -- "...(A) weapon is not concealed if it is so situated as not to be discernable by ordinary observation by those near enough to see it if it were not concealed, who would come into contact with the possessor in the usual associations of life; but that absolute invisibility is not required, since ordinary observation does not extend to a search unusually careful, thorough or detailed, made because of suspicion that contraband which is not visible by ordinary observation may in actuality be present." Also see State v. Davis (1984), 15 Ohio App. 3d 64.

Akron v. Carsey (1980), 18 Ohio Ops. 3d 249 -- Knife was not concealed when part of the sheath was plainly visible. Sheath is associated with weapon so carried.

State v. Maloney (1984), 14 Ohio App. 3d 109 -- Nunchakaus partially visible between seat and console were not concealed.

State v. Almalik (1987), 41 Ohio App. 3d 101, 105 -- A partially concealed weapon is concealed for purposes of the CCW statute. (Butt of gun was visible under car seat after defendant was removed from vehicle.) Also see State v. Davis (1984), 15 Ohio App. 3d 64 (shotgun under seat could only be seen by someone standing "inside" the truck door when the door was open); State v. Coker (1984), 15 Ohio App. 3d 97 (only butt of gun visible above the seat).

State v. Suber (1997), 118 Ohio App. 3d 771 -- Rifle was partially concealed under car seat. Court finds it was in plain view for search and seizure purposes, but concealed for purposes of the CCW charge because ordinary observation would not reveal its presence.

State v. Orin (1992), 84 Ohio App. 3d 812 -- Loaded weapon inside a nylon bag carried in a paper shopping bag was concealed ready at hand. Compare State v. Beasley (1983), 4 Ohio St. 3d 24, 28.

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Knives

State v. Thompson, 185 Ohio App. 3d 639, 2010-Ohio-214 – Police responding to report of an intoxicated man banging his head against a wall asked defendant if he had any weapons. Officer cut her finger withdrawing knife from pocket. While the knife was very sharp and could be used as a weapon, the defendant was a mason and his employer described how the knife was used to cut fiberglass straps on bundles of brick, and demonstrated how the knife had been bent through such use. CCW conviction wasn’t supported by the evidence.

Bunkley v. Florida (2003), 123 S.Ct. 2020 -- Florida has had a common pocketknife exception to the definition of deadly weapons since 1901, but it was not until 1997 that it was judicially interpreted to exclude blades under four inches. The defendant was convicted of armed burglary in 1987 based on his possession of a pocket knife with a blade of three inches or less. Applying Fiore v. White (2001), 531 U.S. 225, remanded for determination whether knife did not qualify as a deadly weapon under state law at the time of conviction.

State v. Cathel (1998), 127 Ohio App. 3d 408 -- Evidence failed to show four inch folding knife was carried as a weapon. There is no presumption that a knife is carried as a deadly weapon, and nothing in the circumstances permitting such an inference. "Deerslayer" trade name indicates it is for use on deer, not humans, court noting even "007" marking was not enough to allow inference of use as weapon in another case. Also see State v. Sears (1980), 18 Ohio Ops. 3d 126.

State v. Anderson (1981), 2 Ohio App. 3d 71 -- Even though an object such as a knife may be readily identifiable as a deadly weapon, the state must further prove that it was either (1) designed or specially adapted for use as a weapon, or (2) possessed, carried or used as a weapon.

Cleveland v. Barnes (1984), 17 Ohio App. 3d 30 -- Whether or not a knife is a deadly weapon is a factual issue for the jury to determine. It is error to instruct that a knife is a deadly weapon per se.

State v. Workman (1992), 84 Ohio App. 3d 534 -- Intent to carry a fixed blade carpet knife as a concealed weapon may be inferred from the manner in which the defendant brandished it when confronted by the police.

State v. King (1982), 8 Ohio App. 3d 40 -- Mere possession of a straight razor is not sufficient for a CCW conviction. It must be further shown that it designed or specially adapted for use as a weapon.

State v. Singh (1996), 117 Ohio App. 3d 381 -- The kirpan, a symbolic sword that observant Sikhs are required to wear, is not a deadly weapon. Veterinarian held in contempt during civil trial was found to have a dull two and a half inch blade, sheathed, and sewn to the waistband of his underwear.

State v. Mosley (1993), 88 Ohio App. 3d 461 -- Since breaking and entering is not defined as an offense of violence by R.C. 2901.01(I), it may not be the basis for raising the penalty for CCW based on a knife from a misdemeanor to a felony.

Akron v. Rasdan (1995), 105 Ohio App. 3d 164 -- Akron ordinance proscribing carrying any knife with a blade more than two and a half inches long found to violate substantive due process by proscribing an unreasonable amount of innocent activity. Compare Rocky River v. Saleh (2000), 139 Ohio App. 3d 313, 322-323 upholding an ordinance which provided an exception for individuals "engaged in lawful business or pursuit justifying possession of such weapon."

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Guns

State v. Davis, 115 Ohio St. 3d 360, 2007-Ohio-5025 -- Transporting a firearm in a motor vehicle in compliance with R.C. 2923.16(C) is an affirmative defense to CCW's premised on guns other than handguns. Opinion touches upon what constitutes ammunition carried ready at hand, the defendant ultimately being held accountable for a loaded clip carried in a gun case.

State v. Ferguson, Union App. No. 14-02-14, 2003-Ohio-866 -- Operability proven where first attempt to fire was unsuccessful, but treatment with WD-40 allowed it to fire. Jury could conclude it was operable or readily made so.

In re Wright, 172 Ohio App. 3d 276, 2007-Ohio-2951 -- Juveniles were seen walking down the street shoulder to shoulder in a suspicious manner, and continued to act in concert when stopped by an officer. One had a .357, the other a box of ammo. Felony CCW adjudication was supported by sufficient evidence that ammunition was ready at hand.

State v. Stacy, Butler App. No. CA2002-03-073, 2003-Ohio-4752 -- Plain error reversal where instructions did not cover the loaded or ammunition ready at hand element of felony CCW. Remedy is remand for a new trial. More appropriate remedy would have been entering misdemeanor conviction. See State v. Breaston (1993), 83 Ohio App. 3d 410. First opinion: State v. Stacy, Butler App. No. CA2002-03-073, 2003-Ohio-3695

State v. Breaston (1993), 83 Ohio App. 3d 410 -- In a CCW prosecution whether the firearm was loaded or ammunition was ready at hand was a legitimate issue, submitted to the jury in the instructions, however, the verdict form contained no space for a finding on this issue. As a result, the defendant stood convicted only of a misdemeanor violation of the statute.

State v. Bowman (1992), 79 Ohio App. 3d 407 -- (1) Absent proof that a loose round of ammunition found near gun a fit, or that a magazine at the rear of the van was within reach, there was a failure of proof that ammunition was concealed ready at hand. (2) Gun could be found to have been concealed when barrel was partially visible only when van door was opened.

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Defenses

State v. Harris, 186 Ohio App. 3d 359, 2010-Ohio-837 – Defendant was indicted for CCW and improper handling of a firearm in a motor vehicle. Following a competency exam the trial court dismissed case in the interest of justice, finding the defendant was a confused 86-year old man with no significant criminal record. Because a bond slip indicated he was arrested a short time later with a replacement weapon in his car this is found to be an abuse of discretion.

Klein v. Leis, 99 Ohio St. 3d 537, 2003-Ohio-4779 -- Syllabus: "(1) R.C. 2923.12 does not unconstitutionally infringe the right to bear arms; there is no constitutional right to bear concealed weapons. (2) The affirmative defenses of R.C. 2923.12(C), which apply to R.C. 2923.12 and 2923.16(B) and (C), are not vague. Klein v. Leis 146 Ohio App. 3d 519, 2002-Ohio-1634, overruled. Court notes that the first CCW statute was enacted eight years after the Ohio Constitution of 1851 and did not arose concern at two following constitutional conventions.

State v. Davis, 166 Ohio App. 3d 37, 2006-Ohio-1141 -- Automatic was in a case marked with the manufacturer's name. The magazine was removed. (1) The proper transport defense provided by R.C. 2923.12(D) and 2923.16(C) does not apply to handguns. (2) Majority believes unloaded gun was nonetheless ready at hand. Compare State v. Beasley (1983), 4 Ohio St. 3d 24, 28.

State v. Assad (1992), 83 Ohio App. 3d 114 -- Conviction was against the manifest weight of the evidence where the defendant was the owner of three stores in high crime areas, personally did all of the banking, and had a gun in his car so would be available when he began the following day's rounds.

State v. Doss (1996), 111 Ohio App. 3d 63 -- Defendant licensed as a private detective and security guard was improperly convicted of CCW. Defendant was licensed to carry firearms, was wearing a bulletproof vest, and was enroute to a location he patrolled in a high crime area.

State v. Beasley (1983), 4 Ohio St. 3d 24 -- The affirmative defenses set forth in the CCW and transporting a weapon in a motor vehicle statutes apply even when the weapon is in a container within the vehicle, and thus "ready at hand" rather than on the person of the defendant.

State v. Titus (1978), 10 Ohio Ops. 3d 300 -- Since "not otherwise prohibited by law" language in the CCW statute refers to statutes but not local ordinances, CCW defendant is entitled to affirmative defenses in the CCW statute even though he was in violation of a local gun control ordinance.

State v. Fryer (1993), 90 Ohio App. 3d 37 -- Court refuses to extend the rule of State v. Hardy (1978), 60 Ohio App. 2d 325 (self-defense as a defense to a weapons under disability charge) to a weapon abandoned on the ground and picked up by the defendant, or to the offense of CCW.

State v. Reynolds (1988), 40 Ohio St. 3d 334 -- When accepting a guilty plea to CCW, the court is not required to advise the defendant of the affirmative defenses set forth in the statute.

State v. Dickey (1984), 15 Ohio App. 3d 151 -- A no contest plea to a charge of CCW is not entered knowingly and voluntarily when the court fails to advise the defendant of the affirmative defenses set forth in the statute.

State v. Brady (1988), 48 Ohio App. 3d 41, 43-44 -- The Second Amendment gives the militia and not individuals the right to bear arms. Consequently a CCW defendant is not entitled to a jury instruction as to his right to bear arms.

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Concealed carry permits

State v. Pawelski, 178 Ohio App. 3d 426, 2008-Ohio-5180 – Defendant was found not guilty of CCW at a bench trial because the court erroneously interpreted R.C. 4749.10 to allow security guards to carry concealed weapons. State could not appeal as a matter of right, but properly brought the issue up for review by first obtaining leave to appeal, "any other decision, except the final verdict." State wins on the legal issue but judgment is affirmed. Security guards are permitted to carry concealed firearms only if properly permitted to do so pursuant to R.C. 2923.125.

Toledo v. Beatty, 169 Ohio App. 3d 502, 2006-Ohio-4638 -- A city is not a private employer empowered to ban carrying concealed weapons in its parks. A regulation banning concealed carry in parks is in conflict with R.C. 2923.121 and is an exercise of police power, not an exercise of local self government. But in the view of the majority, R.C. 2923.121 is not a general law of the state because of the broad opt-out option given owners of private property.

State v. Brown, 168 Ohio App. 3d 314, 2006-Ohio-4174 -- Holder of a concealed carry permit did not promptly inform officer he had a weapon during a traffic stop, in violation of R.C. 2923.16(E)(3), and was found to have the weapon in an unlocked glove compartment, contrary to R.C. 2923.16(E)(1). Constitutional challenges to those provisions fail.

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Other issues

State v. Smith, 176 Ohio App. 3d 119, 2008-Ohio-1682 – Defendant convicted of CCW was one of four passengers in a car where a gun was found under the driver‘s seat. All officer saw was slight movement by the two rear seat passengers, one of whom was the defendant. State‘s case rested on the testimony of a front seat passenger, which was exculpatory, though he was impeached using his prior statement to the police. Since this could not be received as substantive proof of guilt, the trial court erroneously overruled the defendant‘s Rule 29 motion.

State v. Burrow (2000), 140 Ohio App. 3d 466 -- Verdict form did not specify the degree of the offense or set forth the element making carrying a concealed weapon a felony instead of a misdemeanor. Applying R.C. 2945.75(A)(2), defendant could only be sentenced for a misdemeanor.

State v. Moore (2001), 145 Ohio App. 3d 213 -- Carrying a firearm while intoxicated is not a lesser included offense to carrying concealed weapons. Court refuses to treat the situation as a sua sponte amendment of the indictment to charge the lesser offense. Such amendment would have changed the nature and identity of the offense and violated the defendant's due process right to defend himself fairly against the crime charged. Initial acquiescence was not waiver.

State v. Moore (1982), 7 Ohio App. 3d 187 -- Where two pistols in a plastic bag were concealed in a glove compartment, a defendant may not be convicted and sentenced for each weapon. Also see State v. Woods (1982), 8 Ohio App. 3d 56.

Shearman v. Van Camp (1992), 64 Ohio St. 3d 468 -- Double jeopardy does not bar prosecution for CCW merely because another person has already been convicted of possession of the same weapon.

State v. Townsend (1991), 77 Ohio App. 3d 651 -- Access to a weapon, not ownership, is the gist of the offense of carrying concealed weapons. But for an unlawful search, the court would have upheld conviction where two guns were found under the seat of a car the defendant was a passenger in. Defendant had a clip for a 9mm automatic in his pocket as well, though it did not fit the 9mm found under the seat. Compare State v. Duganitz (1991), 76 Ohio App. 3d 363 where the court found the evidence insufficient to support conviction of driver when, among other uncertainties, the gun was found after passenger had been left alone in the car. Also see State v. Hart (1988), 61 Ohio App. 3d 37.

State v. Wilkin (1983), 11 Ohio App. 3d 149 -- Neither double jeopardy nor the doctrine of merger (R.C. 2925.41) prevented successive prosecutions in municipal court for carrying a concealed knife and in common pleas court for carrying a concealed firearm.

State v. Rice (1982), 69 Ohio St. 2d 422 -- "The crimes of carrying a concealed weapon, R.C. 2923.12, and having weapons while under disability, R.C. 2923.13, are not allied offenses of similar import under R.C. 2941.25(A), and may be committed separately and with a separate animus under R.C. 2941.25(B)." Also see State v. Moncrief (1980), 69 Ohio App. 2d 51; State v. Broadus (1984), 14 Ohio App. 3d 443.

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