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
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
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
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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