Franklin County Criminal Law Casebook
Reproduced with permission from
David L. Strait and the Franklin County Public Defender Office
Weapons Offenses; Carrying
Concealed Weapons; Deadly Weapons.
is a firearm
or multiple transactions
R.C. 2923.11(B) -- Firearm defined.
R.C. 2929.14(D) -- Additional term of
mandatory incarceration for offenses involving a firearm.
R.C. 2941.141 -- Requirements as to form of
one year firearm specification.
R.C. 2941.144 -- Requirements as to form of
six year firearm specification.
R.C. 2941.145 -- Requirements as to form for
three years firearm specification.
R.C. 2941.146 -- Requirements as to form for
drive by specification.
State v. Loines (1984), 20 Ohio App. 3d
69 -- Additional time on firearm specification may not be
imposed if indictment does not carry specification.
State v. Tyson (1984), 19 Ohio App. 3d
90 -- Before an additional term may be imposed for a firearm
specification, there must be a separate guilty plea or
conviction entered on the specification.
State v. Chapman (1986), 21 Ohio St. 3d
41 -- Syllabus: "An individual indicted for and convicted of
R.C. 2911.01, aggravated robbery, and
R.C. 2941.141, a firearm
specification, is subject to a mandatory three-year term of
actual incarceration under
R.C. 2929.71, regardless of whether
he was the principle offender or an unarmed accomplice. (State
v. Moore , 16 Ohio St. 3d 30, followed.) Also see
State v. Sims (1984), 13 Ohio App. 3d 287.
State v. Dapice (1989), 57 Ohio App. 3d
99 -- Firearm specification may be added when defendant
furnished weapon to co-conspirator, even though co-conspirator
was a police informant and never intended to use the weapon.
State v. Lytle (1990), 49 Ohio St. 3d
154 -- Syllabus: "Where a defendant is convicted of a third or
fourth-degree felony that is a lesser included offense of a
felony of greater degree, and where the felony of greater degree
is charged in the indictment and is accompanied by a firearm
specification, pursuant to
R.C. 2941.141(A), the firearm
specification applies to the lesser included offense." Also see
State v. Gaughan (1995), 103 Ohio App. 3d 169.
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Proof weapon is a firearm
State v. Macias, Darke App. No. 1562,
2003-Ohio-1565 -- Though the appearance of a object, and the manner in which it
was used, may mean conviction on a firearm specification was supported by
sufficient evidence, references to a fake gun lead to the conclusion conviction
was against the manifest weight of the evidence.
State v. Gaines (1989), 46 Ohio St. 3d
65 -- "R.C. 2923.11(B) and
2929.71(A) require that, prior to
imposition of an additional term of three years actual
incarceration for possession of a firearm during the commission
of a felony, the state must prove beyond a reasonable doubt that
the firearm was operable or could readily have been rendered
operable at the time of the offense."
State v. Thompkins (1997), 78 Ohio St.
3d 380 -- Paragraph one of the syllabus: "A firearm
specification can be proven beyond a reasonable doubt by
circumstantial evidence. In determining whether an individual
was in possession of a firearm and whether the firearm was
operable or capable of being rendered readily operable at the
time of the offense, the trier of fact may consider all relevant
facts and circumstances surrounding the crime, which include any
implicit threat made by the individual in control of the
firearm..." Also see State v. Murphy (1990), 49 Ohio St.
State v. Koren (1995), 100 Ohio App. 3d
358, 365 -- Operability was not proven where there was no
evidence of gunshots, smell of gunpowder, bullets, bullet holes,
or verbal threats, and evidence that the gun had been tested and
found operable was inadmissible as the weapon had been illegally
seized. Also see State v. Butler (1994), 97 Ohio App. 3d
322, 330; State v. Phillips (1990), 69 Ohio App. 3d 379;
State v. Mills (1991), 73 Ohio App. 3d 27;
State v. Soke
(1989), 65 Ohio App. 3d 590, 596; Sanders v. McMackin
(N.D. Ohio 1992), 786 F. Supp. 672.
State v. Vasquez (1984), 18 Ohio App.
3d 92 -- Manner in which weapon is used may be basis for
inferring it is a "firearm." Also see
State v. Habtemarian
(1995), 103 Ohio App. 3d 425 (one victim was familiar with
firearms and heard a click as the gun was cocked);
(1980), 61 Ohio St. 2d 285 (gun does not have to be recovered
and tested to prove it is capable of firing a projectile to
prove it is a "deadly weapon" for purposes of a aggravated
robbery charge - nature of object may be inferred from the facts
and circumstances of its use); State v. Jordan
(1987), 31 Ohio App. 3d 187.
State v. Mann (1993), 93 Ohio App. 3d
301, 311 -- Though the gun was broken at the time of trial,
operability was sufficiently established by testimony of a
police officer that the gun was loaded and field test showed
hammer and firing pin worked.
State v. Thundercloud Way (1989), 49
Ohio App. 3d 3 -- Finding in verdict form that defendant was in
possession of a "deadly weapon" insufficient to sustain
"firearm" specification conviction. Weapon had to qualify as a
"firearm" within the definition of
State v. Boyce (1985), 21 Ohio App. 3d
153 -- Proof sufficient to establish a weapon is a "deadly
weapon" is not sufficient to establish that it was a "firearm."
If weapon is not produced, must at least be circumstantial
evidence it met the statutory definition of a firearm, in that
it was capable of expelling a projectile.
State v. Gray (1984), 20 Ohio App. 3d
318 -- A BB gun may be a "deadly weapon," but it is not a
State v. Phillips (1993), 88 Ohio App.
3d 409 -- Doctrine of res judicata
applied to bar litigation in post-conviction action of issue of
proof of operability of firearm previously raised on direct
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Single or multiple transactions
State v. Franklin,
178 Ohio App. 3d 460,
2008-Ohio-4811 -- Charges arising from a chase with shots fired led to
conviction on seven five-year firearm specifications, which were run
consecutively. Specifications arose from the same transaction and should have
Stevens, 179 Ohio App. 3d 97,
2008-Ohio-5775 – Defendant burst into a home brandishing a
gun and demanded drugs and money from everyone present. There
was a single criminal objective, thus firearm specifications
State v. Moore, 161 Ohio App. 3d 778,
2005-Ohio-3311, ¶27-55 -- Transaction means a series of criminal acts bound
together by time, space and purpose and directed towards a single objective.
Alternately, firearm specifications merge if they arise from a single criminal
Court rejects the "animus" test followed in the Twelfth District.
State v. Kehoe (1999), 133 Ohio App. 3d
591, 616-617 -- Shots fired at one officer from inside vehicle,
followed by aiming gun at a second officer before fleeing,
constituted separate transactions.
State v. Hughley (1984), 20 Ohio App.
3d 77 -- Where multiple counts of aggravated robbery arise from
the same transaction, only one three-year term of actual
incarceration may be imposed. Also see State v. Moore
(1984), 20 Ohio App. 3d 75; State v. Houseman (1990), 70
Ohio App. 3d 499 (multiple offenses, some in same transaction,
some not); State v. Billups (1990), 68 Ohio App. 3d 248,
258-259 (ten offenses but only two transactions).
State v. Wills (1994), 69 Ohio St. 3d
690 -- "Transaction" means a series of continuous acts bound
together by time, space and purpose and directed toward a single
objective. Where the defendant took an athletic jacket from one
victim at gunpoint, then crossed the street and took a second
jacket from a second victim, there were two transactions, and
thus should have been two consecutive terms of actual
incarceration. Also see State v. Ayala
(1996), 111 Ohio App. 3d 627, 631-632.
State v. White (1991), 71 Ohio App. 3d
550 -- Where aggravated robbery and felonious assault were
committed in close proximity and in sequence, but were not
logically connected, separate three year terms of actual
incarceration may be imposed.
State v. Salinas (1997), 124 Ohio App.
3d 379, 387-388 -- Defendant was convicted of three counts of
felonious assault after emptying his handgun from a vehicle,
striking three houses. Since his objective was to empty the gun
in order to scare another resident of the street, events
amounted to a single transaction permitting one, not three,
terms on firearm specifications.
State v. Williams (1996), 115 Ohio App.
3d 24, 32-35 -- Second officer was hit by a stray bullet in gun
battle between defendant and another officer. Imposition of two
three year terms on firearm specifications reversed as plain
State v. Berry (June 29, 1999),
Franklin Co. App. Nos. 97AP-964 and 98AP-256, unreported (1999
Opinions 1782, 1816) -- "We conclude that appellant having a
weapon while under a disability and commission of the aggravated
murder, aggravated robbery, aggravated burglary and kidnapping
were bound together by time and space, and were committed as
part of the same act or transaction."
State v. Dougherty (1994), 99 Ohio App.
3d 265 -- Theft of vehicles, followed by return to steal another
were two separate transactions because the first theft had been
completed. Murder of a witness upon return was a separate
transaction because the objective (elimination of a witness) was
State v. Gregory (1993), 90 Ohio App.
3d 124 -- Defendant fired shots at a police cruiser he knew
contained two officers. While he could be convicted and
consecutively sentenced for two counts of felonious assault,
since the offenses were committed separately, he could be
sentenced to only one three year term of actual incarceration
for firearm specifications, as the offenses arose from the same
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Watson v. U.S.
(2007), 128 S.Ct. 579 – Defendant traded a pistol for drugs. In federal court
the defendant was convicted of use of a firearm during and in relation to a drug
offense, which carries a mandatory minimum sentence. Held that such a swap does
not constitute "use."
State v. Mosley, 166 Ohio App. 3d 71,
2006-Ohio-1756 -- Double jeopardy does not bar imposition of consecutive time on
a firearm specification to the term for theft of a firearm. Defendant did
not fall within the categories permitting time on a firearm specification on a
related weapon under disability charge.
State v. Dixson, Hamilton App. No.
2004-Ohio-2575, ¶37-41 -- When imposing the five year sentence on a
drive-by specification, the court must also impose a consecutive one or three
year sentence on a possession or use specification. Also see State v. Bates,
Franklin App. No. 03AP-893,
State v. Williams (1989), 65 Ohio App. 3d
70 -- Criminal Rule 11 not complied with when court failed to inform the
defendant of the consequences of pleading guilty to a firearm specification.
State v. Blankenship (1995), 102 Ohio
App. 3d 534, 547 -- Court rejects claim that having a weapon
under disability and attached firearm specification are allied
offenses of similar import, or that being sentenced on both is a
double jeopardy violation.
Morgan v. Ohio Adult Parole Authority
(1994), 68 Ohio St. 3d 344 -- Court rejects claim that somehow the defendant was
to be credited by the APA for time served on a firearm specification against the
five year maximum of his indeterminate sentence. The three year term must be
completely served before a defendant begins to serve the balance of his
State v. Ervin (1994), 93 Ohio App. 3d
178 -- If the defendant is found guilty of an offense committed
with a firearm, he is ineligible for probation, even though the
jury has acquitted him on a firearm specification. See dissent.
Different result follows for offenses committed after July 1,
State v. Smith (1993), 89 Ohio App. 3d
497 -- The fifteen year to life sentence applicable to murder is
an indefinite sentence to which an additional three year term
for a firearm specification may be added.
State v. Thomas (1996), 111 Ohio App.
3d 510 -- Court could add mandatory time on firearm spec. even
though prosecutor had not objected at the time of sentencing and
case had already been decided by the Court of Appeals.
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In re Howard, 150 Ohio App. 3d 1,
2002-Ohio-6004 -- Under the statutes governing early release in effect prior to
January 1, 2002, a juvenile was eligible for release after serving half of the
minimum term of commitment, with no distinction being drawn between time on
firearm specifications and other time.
In re Good (1997), 118 Ohio App. 3d 371
-- Court finds no error in sentencing juvenile to an additional
three years on a firearm specification, where the specification
was not a part of the complaint. Juvenile had notice from
proceedings. Specification complaint may have existed, but been
In re B.S. (1998), 103 Ohio Misc. 2d 34
-- In mandatory bindover proceedings, the state must establish
probable cause as to the firearm specification as well as to the
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State v. Holmes,
181 Ohio App. 3d 397,
2009-Ohio-1241 – Upon appellate review of the sufficiency of the evidence,
the reviewing court may find the evidence supports conviction on a lesser
included offense or firearm specification. Defendant and her cousin were waiting
outside a KFC with a gun to commit a robbery. Evidence did not support
aggravated robbery conviction, because the element of brandishing, display, use
or indication of possession had not yet been committed. Furthermore, the
evidence supported a one-year firearm specification, but not a three-year spec.
State v. Hous, Greene App. No. 02CA116,
2004-Ohio-666 -- Burglar's theft of guns sufficient for conviction on
firearm specification. State v. Jackson, 169 Ohio
App. 3d 440,
2006-Ohio-6059 -- Complicity in an underlying offense and complicity with
respect to firearm specifications are separate issues. Complicity in robbery and
felonious assault was proven, but the defendant's gun was in another room, and a
second gun in the possession of the principal offender was not proven operable.
State v. Powell (1991), 59 Ohio St. 3d 62
-- The crime of aggravated burglary continues so long as the burglar remains in
the structure being burglarized. Consequently, if a gun is taken during the
burglary, it may be the basis for a firearm specification. Compare
Rogers (1990), 68 Ohio App. 3d 4 where shortly after the rape was concluded,
the defendant removed a gun from a gun rack and threatened to kill the victim if
she reported what had happened. Operability was proven, but conviction on
specification was reversed as the defendant was not in possession of the gun at
the time of the offense.
State v. Boyd (1996), 110 Ohio App. 3d 13
-- Defendant was convicted of aggravated robbery, but acquitted on firearm
specification. No reversal because verdicts are inconsistent. Opinion mistakenly
characterizes firearm specification as a separate offense. Better view would be
that while there may appear to be an internal inconsistency within a single
count, aggravated robbery is premised on the use of a deadly weapon, not limited
State v. Courtney (1985), 25 Ohio App. 3d
12 -- R.C. 2929.71 is not void for vagueness or impossible to apply.
State v. Mullins (1986), 34 Ohio App.
3d 192 -- (1) Additional three-year term for use of firearm is
not cruel and unusual punishment. (2) Firearm specification may
be added only to offenses committed after statute's initial
effective date of September 17, 1986. Also see
State v. Jones
(1983) 13 Ohio App. 3d 65.
McMillan v. Pennsylvania (1986), 477
U.S. 67 -- When visible possession of a firearm is a sentencing
consideration and neither increases the degree of the offense or
adds to the penalty, due process does not require that
possession be proven beyond a reasonable doubt.
State v. Vasquez (1984), 18 Ohio App.
3d 92 -- Added time for firearm specification in aggravated
robbery prosecution is not contrary to the Double Jeopardy
Clause. Also see Missouri v. Hunter (1983), 459 U.S. 359;
State v. Sims (1984), 19 Ohio App. 3d 87;
State v. Loines
(1984), 20 Ohio App. 3d 69; State v. Price (1985), 24
Ohio App. 3d 186.
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