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

WEAPONS OFFENSES (011)

Also see Carrying Concealed Weapons; Firearm Specifications; Deadly Weapons; Sentencing; Probation and Community Control.

 

In general

Having weapons while under a disability

Dangerous ordinance

Other weapons offenses

 

R.C. 2923.11 -- Definitions.

R.C. 2923.13 -- Having weapons while under disability.

R.C. 2923.15 -- Using weapons while intoxicated.

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 dangerous ordinance.

R.C. 2923.21 -- Improperly furnishing firearms to a minor.

In general

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.

McDonald 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 Fourteenth Amendment.

State v. Creech, 188 Ohio App. 3d 513, 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 another.

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 conventions.

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 R.C. 2923.17(A) for purposes of Section 3, Article XVIII of the Ohio Constitution." Reverses Cincinnati v. Baskin, 158 Ohio App. 3d 539, 2004-Ohio-5055.

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 R.C. 2901.22(B), 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 R.C. 2923.13(A)(3) 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) R.C. 2901.22(B) 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. Johnson, above.)

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."

State v. 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, distinguished.

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 possess guns.

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 [1989], 65 Ohio App. 3d 590, disapproved.)"

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 of sentencing.

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 ab initio 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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Dangerous ordinance

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.

United 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 customs official.

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 "dangerous ordinance."

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 [1980], 69 Ohio App. 2d 51.)

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Other weapons offenses

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 R.C. 2923.161 and a firearm specification as defined in R.C. 2941.145 are not allied offenses of similar import as defined in R.C. 2941.25, 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. 2941.25.”

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.

Bond v. 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.

State v. Moorer, 176 Ohio App. 3d 398, 2008-Ohio-2560 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, 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.

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 659, 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 be returned.

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, 2002-Ohio-2121; State 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 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. 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 constitutional attacks.

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 structure.

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 [R.C. 2923.02(A)(2)] may be allied offenses of similar import.

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