Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
Carrying Concealed Weapons; Firearm
Specifications; Deadly Weapons;
Probation and Community Control.
Having weapons while under a disability
Other weapons offenses
R.C. 2923.11 -- Definitions.
R.C. 2923.13 -- Having weapons while under
R.C. 2923.15 -- Using weapons while
R.C. 2923.16 -- Improperly handling firearms
in a motor vehicle.
R.C. 2923.161 -- Improperly discharging
firearm at or into school or habitation.
R.C. 2923.17 -- Unlawful possession of
R.C. 2923.21 -- Improperly furnishing firearms
to a minor.
District of Columbia v.
Heller (2008), 128 S.Ct. 2783 – The Second Amendment protects an
individual‘s right to possess a firearm without limitation to service in a
militia. District of Columbia blanket ban on handgun ownership, and requirement
that all guns kept in the home be stored unloaded and disassembled, or fitted
with a trigger lock, are unconstitutional.
v. City of Chicago, Ill. (2010), 130 S.Ct. 3020 –The
Second Amendment right to bear arms, as recognized in District of Columbia v. Heller
(2008), 128 S.Ct. 2783, is extended to the states through the
State v. Creech, 188 Ohio App. 3d
2010-Ohio-2553 – After discussion of recent Supreme Court
decisions on merger the court concludes: (1) With respect to
multiple weapon under disability charges, counts involving
simultaneous possession of several weapons at one location do
merge. Counts based on an ammo box containing multiple weapons
merge. Count based on rifle found elsewhere does not merge. (2)
Weapon under disability and dangerous ordinance counts do not
merge, though the dangerous ordinance counts merge with one
United States v. O’Brien (2010), 130
S.Ct. 2169 – One count of a robbery indictment charged the use
of a machine gun, carrying a 30-year mandatory minimum term. The
government dismissed this count as it was unable to prove the
weapon operated fully automatically, but sought to use the
statutory language on which the charge was based as a sentencing
enhancement. The Supreme Court concludes use of a machine gun
was an element. Construing the statute, the court looked at the
former version which had been interpreted to make use of a
machine gun an element, and the changes made to the reenacted
version. Movement of the language in question to a separate
paragraph comports with modern drafting practice and does not
convert use to a sentencing factor.
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
Cincinnati v. Baskin, 112 Ohio St. 3d 279,
2006-Ohio-6422 -- Syllabus: "Cincinnati Municipal Code
708-37, which prohibits the possession of any semiautomatic
rifle with a magazine capacity of more than ten rounds, is not
in conflict with
2923.17(A) for purposes of Section 3, Article XVIII of the
Ohio Constitution." Reverses Cincinnati v. Baskin, 158 Ohio App.
Arnol v. Cleveland (1993), 67 Ohio St.
3d 35 -- Paragraphs 2-4 of the syllabus: "(2) Section 4, Article I of the Ohio
Constitution confers upon the people of Ohio the fundamental right to bear arms.
However, this right is not absolute. (3) Former Cleveland ordinance No. 415-89,
prohibiting the possession and sale of 'assault weapons' in the city of
Cleveland, is a proper exercise of the police power under Section 3, Article
XVIII of the Ohio Constitution and does not violate Section 4, Article I. (4)
Former Cleveland Ordinance No. 415-89 does not violate the Supremacy Clause of
the United States Constitution..."
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. As to other Second Amendment claims, see State v. Pauley
(1982), 8 Ohio App. 3d 354, 357; United States v. Warin (6th Cir. 1976),
530 F. 2d 103; United States v. Miller
(1939), 307 U.S. 174; State v. Fant (1977), 53 Ohio App. 2d 87, 90;
State v. Nieto (1920), 101 Ohio St. 409, 413;
Mosher v. Dayton
(1976), 48 Ohio St. 2d 243, 247-248; State v. Winkelman (1981), 2 Ohio
App. 3d 465.
University Heights v. O'Leary (1981), 68
Ohio St. 2d 130 -- Syllabus: "It is a reasonable exercise of the police power
for a municipality to enact an ordinance which requires a non-resident, before
bringing a firearm into the municipality, to possess a firearm owner's
identification card, issued either by the non-resident's home municipality or
the enacting municipality." Also see East Cleveland v. Scales (1983), 10
Ohio App. 3d 25.
In re Forfeiture of One 1986 Buick Somerset
(1993), 91 Ohio App. 3d 558 -- Car used to transport a weapon, which the
defendant was under a disability to possess, was subject to forfeiture.
State v. Acoff (1998), 131 Ohio App. 3d
657 -- Since improper handling of a weapon in a motor vehicle is not a traffic
offense, the weapon may not be returned to the owner.
State v. Hardy (1978), 60 Ohio App. 2d 325
-- (1) In order to "have" a firearm within the meaning of the weapon under
disability statute, an individual must actually or constructively possess it.
This was not established when defendant obtained possession in a scuffle. (2)
Person under a disability may use weapon in self defense in such circumstances.
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. Patton (1995), 106 Ohio App. 3d
736 -- Defendant who claimed self-defense was acquitted of murder, but convicted
of having a weapon under disability and related firearm and physical harm
specifications. Court holds self-defense is a defense to a physical harm
specification. Thus, it was error not to so instruct the jury, and conviction on
the specification was not supported by the evidence.
State v. Gray (1984), 20 Ohio App. 3d 318
-- A BB gun may be a "deadly weapon," but it is not a "firearm."
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Having weapons while under a disability
State v. Johnson,
128 Ohio St. 3d 107,
2010-Ohio-6301 – Courts have repeatedly faced the question of determining
the culpable mental state of an offense element by element, sometimes concluding
recklessness applies to some elements via
other times concluding strict liability applies. Conclusion in Johnson is: (1)
Stated mens rea applies to referenced elements. (2) Recklessness applies only to
offenses where no culpable mental state is specified. It does not apply to
individual elements of offenses including a culpable mental state as to one or
more elements. (3) Door is open to strict liability applying to many elements.
Syllabus: “(1) A conviction for violation of the offense of having weapons while
under disability as defined by
does not require proof of a culpable mental state for the element the offender
is under indictment for or has been convicted of any offense involving the
illegal possession, use, sale, administration, distribution, or trafficking in
any drug of abuse. (2)
does not supply the mens rea of recklessness unless there is a complete absence
of mens rea in the section defining an offense and there is no plain indication
of a purpose to impose strict liability.”
State v. Clay, 120
Ohio St. 3d 528,
2008-Ohio-6325 – Within the weapon under disability statute, knowingly
applies only to the possession element. Recklessness, not strict liability, is
the culpable mental state with regard to the element that the subject is under
indictment for a drug offense. Actual knowledge of a pending indictment is not
required, but recklessness applies in determining whether the defendant is aware
he or she is under indictment. (Reversed by State v.
Anderson, 183 Ohio App. 3d 522,
2009-Ohio-3900; ¶42 – Defendant was reckless with regard to
circumstances, specifically that he was a fugitive from justice
and thus under a disability. "In the instant case, nine law
enforcement officers testified that multiple marked police cars
with lights and sirens activated were in pursuit of defendant
who narrowly missed hitting several of these cars during the
July 10, 2006 high-speed chase. In other words, there was
overwhelming evidence that on July 12, 2006 – two days after
this unsuccessful chase – defendant knew he was a fugitive from
justice. Therefore, any defects in the indictments or jury
instructions were harmless, and do not amount to plain error."
Mendell, 191 Ohio App. 3d 325,
2010-Ohio-6107 – No contest plea did not preserve for appeal
the defendant’s immunity from prosecution claim based on
2923.23(A) where he did not obtain a ruling on the motion
before the plea was entered. Issue cannot be raised as a matter
of first impression on appeal.
State v. Cherry,
171 Ohio App. 3d 375,
2007-Ohio-2133 -- Police pursued car leaving the scene of a home invasion.
Occupants bailed. Gun was found in the car. While fleeing the occupants were
fugitives from justice. Defendant is found to have been in constructive
possession of a gun left in the car. WUD conviction stands.
State v. Martz, 163 Ohio App. 3d 780,
2005-Ohio-5428, ¶34-44 -- Self defense is not a defense to having a weapon under
disability when the offender acquired the weapon prior to the incident that led
to the claim of self defense. State v. Hardy (1978), 60 Ohio App. 2d 325,
State v. Hayes, 166 Ohio App. 3d 791,
2006-Ohio-2359 -- Position of gun under driver's side of the front bench seat of
a pickup was sufficient to support WUD conviction. Back seat passenger would
have had to climb over the seat back to place the weapon handle up.
Kicking it under the seat would not have left it in that position.
Inconsistency with CCW acquittal does not require reversal.
Bernad v. Lakewood (2000), 140 Ohio
App. 3d 350 -- Antique gun collection was seized while the owner was under a
disability because of a prior CCW conviction. Upon being relieved of that
disability owner was entitled to replevin.
In re Hensley, 154 Ohio App. 3d 210,
2003-Ohio-4619 -- (1) Amendment of
R.C. 2901.01 and
2923.13 attaching disability
to prior convictions does not violate the state constitution's ban on
retroactive laws. (2) Even though the applicant's prior gross sexual imposition
conviction now carries a disability, he is still entitled to a full hearing on
his motion for relief from disability, and is eligible for relief.
State v. Lett, 160 Ohio App. 3d 46,
2005-Ohio-1308 -- Conviction for having a weapon under a disability is not
inconsistent with acquittal on firearm specifications when there was testimony
the defendant was seen in possession of another gun.
Small v. United States (2005), 125 S.Ct.
1752 -- The federal weapon under a disability statute, referring to convictions
"in any court," encompasses a Japanese conviction with a penalty exceeding one
year of imprisonment.
Old Chief v. United States (1997), 519
U.S. 172 -- Defendant charged in federal court with having a weapon while under
a disability offered to stipulate existence of prior conviction in order to
avoid jury learning that it was for assault causing serious bodily injury.
Applying Evidence Rule 403, held to be an abuse of discretion to allow
prosecution to reject the stipulation and prove the prior offense.
State v. Gibson (1993), 89 Ohio App. 3d
188 -- In a weapon under disability prosecution, the state is not required to
prove that the defendant has not been relieved from the disability.
State v. Smith (1987), 39 Ohio App. 3d 24,
25 -- "A defendant's actual knowledge of the disability is not an essential
element of the offense charged under
R.C. 2923.13(A)(3) when the disability is
based on a prior conviction." Distinguishes State v. Winkelman (1981), 2
Ohio App. 3d 465, 469 which reaches the opposite conclusion when the disability
arises from a pending indictment.
State v. Taniguchi (1995), 74 Ohio St. 3d
154 -- Syllabus: "A conviction under
R.C. 2923.13 for having a weapon while
under disability is not precluded when there is an acquittal on, or dismissal
of, the indictment which had formed the basis for the charge of having a weapon
while under disability."
State v. Stebner (1988), 46 Ohio App. 3d
145 -- A weapons under disability charge cannot be based on the seizure of the
defendant's hunting guns (which were in plain view) during the execution of a
valid search warrant for drugs, when the officers executing the warrant did not
have prior knowledge that the defendant was under a disability and could not
State v. Covington (1995), 107 Ohio App.
3d 203 -- Conviction of reckless homicide under Kentucky law did not constitute
an offense of violence giving rise to a disability. The definition of
recklessness under Kentucky law is the equivalent of negligence under Ohio law,
and is controlling.
State v. Semenchuk (1997), 122 Ohio App.
3d 30 -- (1) Defendant charged with having a weapon under a disability
complained bill of particulars didn't disclose facts making him out to be drug
dependent or a chronic alcoholic. Held that objective of the bill is disclosure
of the nature of the offense charged, not disclosure of evidence. (2) At 43-45:
Repeated citations for DUI and related offenses may be admissible to assist in
proving the element of chronic alcoholism, but by itself is not sufficient proof
to support conviction. Evidence of refusals to take BAC tests is not admissible.
State v. Tomlin (1992), 63 Ohio St. 3d 724
-- Syllabus: In order to assist the trier of fact in determining whether an
individual is a 'chronic alcoholic' pursuant to
R.C. 2923.13(A)(4), (weapon
under a disability), a medical or osteopathic physician, psychologist, or any
health care professional who has been specifically trained or is experienced in
providing treatment for or diagnosing alcoholism, may testify as an expert
witness where the trial court has preliminarily determined, under the facts of
the particular case pursuant to Evid. R. 104(A), that the proposed witness is
qualified to so testify. (State v. Soke , 65 Ohio App. 3d 590,
Rothacker v. Lakewood (1986), 30 Ohio App.
3d 33 -- Chronic alcoholic is under a disability and may not recover guns seized
by the police.
State v. Moaning (1996), 76 Ohio St. 3d
126 -- Syllabus: "An individual who is convicted of attempted drug abuse is
prohibited from acquiring, having, carrying or using a firearm or dangerous
ordinance pursuant to
R.C. 2923.23(A)(3)." Also see
State v. Lofties
(1991), 74 Ohio App. 3d 824.
State v. Thompson (1988), 46 Ohio App. 3d
157, 159 -- Possession of multiple weapons while under a disability is a single
offense. Even if multiple charges could be lodged, they would merge for purposes
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.
State v. Hines (1987), 39 Ohio App. 3d 129
-- Having a weapon under disability and unlawful possession of dangerous
ordinance are not allied offenses of similar import.
State v. Moore (1996), 110 Ohio App. 3d
649 -- Municipal ordinance offense based on possession of a semiautomatic weapon
and weapons under disability charge arising from the same incident were not
allied offense of similar import, nor was there a double jeopardy violation.
State v. Kimbler (March 25, 1980),
Franklin Co. App. No. 79AP-576, unreported (1980 Opinions 834) -- Weapon under
disability and possession of criminal tools charges merge when both counts
involve the same sawed off shotgun.
State v. Winkelman (1981), 2 Ohio App. 3d
465, 469-470 -- (1) The affirmative defense lefting carrying of a weapon under
the carrying concealed weapons statute does not apply to the weapon under
disability statute. (2) When the indictment which gave rise to the disability
was resolved in the defendant's favor before trial on the weapons under a
disability charge, the disability is considered to have dissolved
and may not be used.
In re Application of Pikaart (1997), 121
Ohio App. 3d 313 -- Relief from disability does not hinge on never having been
convicted of another offense as does expungement.
State v. Barnett (1999), 131 Ohio App. 3d
137 -- CCW exception did not make defendant who was also convicted of weapon
under a disability eligible for probation. Pre 7-1-96 case.
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In re S.R., 182
Ohio App. 3d 803,
2009-Ohio-3156 – Eagle Scout aspirant set off a bottle bomb harmlessly in a
safe location. He had learned how to mix toilet cleaner containing hydrochloric
acid and aluminum foil in a sealed plastic bottle at a scout campfire. To
constitute "dangerous ordinance", the state must prove (1) the device contains
an explosive device or agency, (2) there is a means to detonate, and (3) it is
designed to cause physical harm to persons or property. The later was not proven
in this case. Compare In re Travis (1996), 110
Ohio App. 3d 684. Related inducing panic conviction reversed as well for want of
a predicate offense.
States v. Ressam (2008), 128 S.Ct. 1858 – Defendant
declared himself a Canadian citizen when entering the U.S. by
ferry at Port Angeles, Washington. Search of his car turned up
explosives he planned to detonate at the Los Angeles airport.
Held that he was properly convicted of carrying an explosive
during the commission of a felony, that felony being lying to a
State v. Jordan (2000), 89 Ohio St. 3d 388
-- The state must prove that the defendant knowingly possessed dangerous
ordinance, but not that he had knowledge that the weapon in his possession
qualified as dangerous ordinance. Barrel of sawed off shot gun exploded when
accidently discharged. Defense expert said barrel was 1/8" under 18" legal
length. State's expert said it was 7/8" short. But, opinion concludes "Entirely
innocent conduct should not be punished." Compare Staples v. United States
(1994), 511 U.S. 600.
State v. Kassen (1984), 20 Ohio App. 3d
153 -- In a prosecution for illegal possession of dangerous ordinance, the state
need not prove that nitroglycerine is a dangerous ordinance since that issue has
been conclusively resolved by its inclusion in the statutory definition of
State v. McCall (1994), 99 Ohio App. 3d
409 -- A plastic milk jug filled with gasoline, absent a means to ignite it, is
not an "incendiary device" within the meaning of
R.C. 2923.11(I), and therefore
not dangerous ordinance for purposes of a weapons under disability charge.
In re Travis (1996), 110 Ohio App. 3d 684
-- Two liter soda bottle charged with toilet bowl cleaner and aluminum foil so
it would explode qualified as dangerous ordinance.
State v. Houston (1985), 26 Ohio App. 3d
26 -- Offenses merge where same shotgun used to commit robbery was also the
basis for criminal tools and possession of dangerous ordinance charges.
(Supersedes position taken by same court that PCT does not merge with CCW or
weapon under disability charges. State v. Moncrief
, 69 Ohio App. 2d 51.)
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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..
State v. Ford, 128 Ohio St. 3d 398,
2011-Ohio-765 – Syllabus: “(1) The criminal offense of discharging a firearm
at or into a habitation as defined in
and a firearm specification as defined in
are not allied offenses of similar import as defined in
because a firearm specification is a penalty enhancement, not a criminal
offense. (2) Penalties for a specification and its predicate offense do not
merge under R.C.
Ohioans for Concealed
Carry, Inc. v. Clyde, 120 Ohio State 3d 96,
2008-Ohio-4605 – Municipal ordinance nullifying concealed carry permits in
city parks held an unconstitutional exercise of the home rule power as it
conflicts with the general law of the state.
Unites States (2011), 131 S.Ct. 2355 – Defendant was
charged under a federal statute forbidding possession or use for
nonpeaceful purposes of a chemical that can cause death or
lesser harm to humans, which was part of a chemical weapons
treaty. Defendant moved to dismiss maintaining it exceeded
Congress’ constitutional authority to enact, as under the Tenth
Amendment such matters were reserved o the states. District
Court said she lacked standing. Supreme Court holds private
citizen has standing when she has been injured by disregard of
the federal structure of government.
Moorer, 176 Ohio App. 3d 398,
R.C. 2923.161(A)(1) proscribing improperly discharging a
firearm at or into a habitation does not reach shots fired
inside the habitation.
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,
is not a general law of the state because of the broad opt-out option given
owners of private property.
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
2923.16(E)(3), and was found to have the weapon in an
unlocked glove compartment, contrary to
Constitutional challenges to those provisions fail.
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 into the categories permitting time on a firearm specification on a
related weapon under disability charge.
State v. Whitmore, 162 Ohio App. 3d
2005-Ohio-4018 -- Gun was seized when defendant was arrested for use of a
weapon while intoxicated and other offenses. Charges were later dismissed.
Court denied motion for release of the weapon. State claimed there had been an
agreement to dismiss in exchange for surrender of the weapon. Absent an
acknowledgment that this was the case or a signed plea agreement, the gun must
State v. Dommer, 162 Ohio App. 3d 404,
2005-Ohio-4073 -- Defendant was charged with illegally manufacturing or
possessing explosives after setting off a bottle bomb made of aluminum foil and
toilet bowl cleaner. Motion to dismiss should have been granted as the
R.C. 2923.11(M) definition of "explosive" does not include explosives not
subject to regulation by the fire marshall. Citing In re Travis (1996),
110 Ohio App. 3d 684, the bottle bomb might constitute dangerous ordinance as
the definition of "explosive devices" is different.
State v. Schors, 160 Ohio App. 3d 431,
2005-Ohio-1668 -- Sale of a firearm to a minor is a strict liability offense.
Neither the use of the word shall nor public policy are enough to compel this
conclusion, but the inclusion of a culpable mental state in other subsections is
enough to plainly indicate legislative intent to impose strict liability.
Also see State v. Maxwell, 95 Ohio St. 3d 254,
v. Wac (1981), 68 Ohio St. 2d 84, 86.
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
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. Beasley (1983), 4 Ohio St. 3d 24
-- The affirmative defense that a weapon was being transported lawfully in a
motor vehicle, as set forth in
R.C. 2923.12(C) and
2923.16(C) is available even
though the weapon is otherwise concealed ready at hand.
State v. Skaggs (1994), 97 Ohio App. 3d 15
-- Evidence was insufficient to sustain a furnishing weapons to minors
conviction where guns were left in an unlocked closet, children were directed
not to use them when father was not present, but did anyway.
Cincinnati v. Langan (1994), 94 Ohio App.
3d 22 -- Cincinnati assault weapons control ordinance upheld against various
State v. Estrada (1998), 126 Ohio App. 3d
553 -- Firing a weapon into a habitation or school indictment dismissed where
premises involved was a convenience store. Store may qualify as an occupied
State v. Wolfe (1988), 51 Ohio App. 3d 215
-- Unlawful transactions in weapons [R.C. 2923.20(A)(1)] and possession of
firearms with purpose to engage in unlawful transactions in weapons
2923.02(A)(2)] may be allied offenses of similar import.
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