Criminal Tools, Possession of


Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

R.C. 2923.24 -- Possessing criminal tools.
State v. Hicks, 186 Ohio App. 3d 528, 2009-Ohio-5302 – Pursuant to R.C. 2923.24(B)(3) possession of a flashlight with tape over part of the lens to reduce light emission is prima face evidence it was intended for criminal use. Defendant failed to rebut this presumption. Consequently his conviction was supported by the evidence. Even without 2923.24(B)(3) the overall circumstances supported conviction for possessing criminal tools.
State v. Boykin, Montgomery App. No. 19896, 2004-Ohio-1701, ¶127- 136 -- Though the indictment alleged tools were used in the commission of a felony, this was not included on the verdict form. Consequently defendant stood convicted of the least degree of the offense.
State v. McDonald (1987), 31 Ohio St. 3d 47 -- Syllabus: "R.C. 2923.24, prohibiting the possession of criminal tools, is constitutional on its face." Opinion suggests it may be unconstitutional in some applications.
State v. Williams (1993), 89 Ohio App. 3d 288 -- Burglar had a flashlight. It was not cruel and unusual punishment to impose a consecutive term for PCT. Compare State v. Gilham (1988), 48 Ohio App. 3d 293; State v. Parson (1990), 67 Ohio App. 3d 201.
State v. Volpe (1988), 38 Ohio St. 3d 191 -- Where a statute specifically proscribes possession of a particular object or device, and punishes possession as a misdemeanor, that provision controls and the possessing criminal tools statute cannot be used to punish possession of that same article as a felony. Case involved gambling devices and opinion suggests same result as to drug abuse instruments. This decision overturns a series of Ohio cases where criminal tools convictions for possession of gambling devices had been upheld, including State v. Oliver (1987), 31 Ohio App. 3d 100; State v. Miles (1983), 8 Ohio App. 3d 410; State v. Stover (1982), 8 Ohio App. 3d 179.
State v. Chandler (1989), 54 Ohio App. 3d 92 -- Applying State v. Volpe the possession of criminal tools statute may not be used to punish as a felony the possession of a syringe, punishable as a misdemeanor under a more specific provision. Also see State v. Ball (1991), 72 Ohio App. 3d 43, 51-52.
State v. Farkas (1989), 64 Ohio App. 3d 224 -- Because R.C. 4507.30(A) specifically prohibits the possession of a fictitious driver's license, defendant cannot be convicted of possession of criminal tools based on such a license.
State v. Gilham (1988), 48 Ohio App. 3d 203 -- Headnote: "R.C. 2923.24 (possession of criminal tools) is unconstitutionally applied when the state disproportionately enhances the penalty for R.C. 2907.24 and/or 2907.25 (solicitation and/or prostitution) by indicting the defendant for possession of a criminal tool (the automobile driven by her when she solicited for prostitution)."
State v. Oliver (1987), 31 Ohio App. 3d 100, 104 -- "In order to obtain a conviction for possession of criminal tools, the state must prove possession or control of devices or articles with purpose to use them criminally."
State v. Bender (1985), 24 Ohio App. 3d 131 -- Since the possession of unsigned credit slips by itself does not create prima facie evidence of criminal purpose, within the three categories set forth in the statute, criminal intent must be otherwise proven beyond a reasonable doubt.
State v. Hardin (1984), 16 Ohio App. 3d 243 -- Evidence was sufficient to give rise to inference crowbar was possessed with intention to use it criminally where it was hung from loop inside the back part of the defendant's clothing, the defendant possessed other objects which might be used criminally, and gave a dubious account as to what he was doing in the area.
State v. Mandich (1977), 51 Ohio App. 204 -- If the object seized in a valid pat down for weapons (see Terry v. Ohio) turns out not to be a weapon, but is a criminal tool (here a pick to be used on coin machines), object may be used in PCT prosecution.
State v. Talley (1985), 18 Ohio St. 3d 152 -- Syllabus: "Pursuant to R.C. 2941.25, the offenses of breaking and entering, grand theft, and possessing criminal tools are not allied offenses of similar import inasmuch as these offenses have elements which do not correspond to such a degree that the commission of one will result in the commission of the other. Accordingly, inquiry into whether the crimes were committed with a separate animus as to each is unnecessary. (State v. Mitchell [1983], 6 Ohio St. 3d 415, followed.)"
State v. Houston (1985), 26 Ohio App. 3d 26 -- Offenses merge where the shotgun used to commit a 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.)
State v. Johnson, Cuyahoga App. No. 82804, 2004-Ohio-745 -- Bike riding counterfeit drug seller's criminal tools conviction reversed as unsupported by the evidence where use of the bicycle was merely incidental to the drug offense. There was no proof of intent to use the bicycle for a criminal purpose, such as concealment of drugs or money. "By the same logic, a dealer operating on foot would not have his shoes labelled as criminal tools unless the evidence demonstrated he had a purpose to use them criminally."
State v. Nievas (1997), 121 Ohio App. 3d 451, 457-458 -- Permitting drug abuse in a car, and possession of the same car as a criminal tool are allied offenses of similar import.
State v. Smith (1993), 92 Ohio App. 3d 172 -- Defendant helped arrange a drug sale. Criminal tools allegedly were the vendor's car and portable phone, and cash found in the purse of a codefendant. Evidence did not establish guilt where the defendant was not shown to be in actual or constructive possession of any of these items.
State v. Mateo (1991), 57 Ohio St. 3d 50 -- Since a "snort tube" is not a hypodermic or a syringe and thus a "drug abuse instrument," possession may be prosecuted under the possession of criminal tools statute. Also see State v. Wilson (1991), 77 Ohio App. 3d 718 -- Similar conclusion as to baggies.
State v. Kobi (1997), 122 Ohio App. 3d 160, 179-182 -- Possession of a radio frequency interference detector, digital scales, Harley Davidson coffee mug, jar, vase and books amounted to possession of drug paraphernalia, but not PCT.
State v. Tolbert (1996), 116 Ohio App. 86 -- Search incident to arrest turned up crack and marijuana. Criminal tools conviction upheld based on possession of cash and pagers.
State v. McShan (1991), 77 Ohio App. 3d 781 -- Defendant was seated on passenger side of car double parked in area known for drug activity. PCT conviction reversed insofar as the car was involved but affirmed as to the pager. See dissent.
In re Forfeiture of 1988 Ford Tempo AWD (1994), 97 Ohio App. 3d 398 -- Passenger in pickup had a crack pipe. State sought forfeiture of the truck. Whether the truck was subject to forfeiture hinged on whether there was a felony drug abuse offense. Possession of the pipe was at most a misdemeanor. Though the pipe might be deemed a criminal tool, a charge of possessing criminal tools still would not have constituted a felony drug abuse offense within the meaning of R.C. 2925.01(H).
State v. Troisi, 179 Ohio App. 3d 326, 2008-Ohio-6062 – On a tip, police raided a grange hall where knock-off fashion merchandise was being sold. Defendant was convicted of trademark counterfeiting, but this was reversed because the evidence was insufficient. She was also convicted of possessing criminal tools, specifically the car she used to bring the merchandise to the grange hall, and the totes used to carry it inside. This conviction is also reversed because there was insufficient proof on the counterfeiting charge. Affirmed, State v. Troisi, 124 Ohio St. 3d 404, 2010-Ohio-275 – Syllabus: “A trademark-investigation expert’s testimony that he is aware that certain trademarks are registered but that he has never personally viewed the trademark-registration documents is insufficient to prove by itself that the trademarks are registered on the principal register in the United States Patent and Trademark Office as required for a conviction under R.C. 2913.34.”
State v. Turner, 156 Ohio App. 3d 177, 2004-Ohio-464 -- A computer can be used as a criminal tool.
State v. Bakies (1991), 71 Ohio App. 3d 810 -- Theft by deception not proven where was not established that the defendant did not intend to repay a loan. Defendant was also charged with using bronze statutes offered as collateral as criminal tools.
State v. Harlan (1995), 105 Ohio App. 3d 756 -- During a shampoo and rinse, defendant handcuffed hairdresser to sink, leading to M-3 charge of unlawful restraint. Under these circumstances, adding a felony charge of possession of criminal tools (handcuffs) amounted to the creation of a constitutionally disproportionate charge. See Solem v. Helm (1983), 463 U.S. 277.
State v. Frambach (1992), 81 Ohio App. 3d 834 -- Various charges, including PCT, arose from investigation of defendant's meat processing business. PCT conviction, premised on processing equipment, upheld.
State v. Anderson (1981), 1 Ohio App. 3d 62 -- Defendant was suspected of stealing wheel covers from a parking garage, though not charged. Instead he was charged with PCT based on tire irons found in the rear part of the car, near the wheel covers. Evidence found insufficient to sustain conviction. Defendant was not seen using the tire irons, they were found in a place where they normally would be expected, and they were not items commonly used for a criminal purpose.
State v. Ford (1986), 31 Ohio App. 3d 99 - A tree branch can be a criminal tool.
State v. Haberek (1988), 47 Ohio App. 3d 35, 44-46 -- A computer terminal may be used as a criminal tool.

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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
Contents may not be duplicated without express permission.