Deadly Weapons

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

R.C. 2923.11(A) -- "Deadly weapon" defined
 
State v. Clark, 173 Ohio App. 3d 719, 2007-Ohio-6235 – Third party sought return of the guns involved in a negligent homicide. Trial court refused return, but compliance with R.C. 2933.41 was problematic. That statute has been superseded by R.C. 2981.01 through 2981.14, which are to be applied retroactively. Case remanded for further proceedings in compliance with those provisions.
 
State v. Rogers, 178 Ohio App. 3d 332, 2008-Ohio-4867 – A hammer may qualify as a deadly weapon.
 
State v. Price, 162 Ohio App. 3d 677, 2005-Ohio-4150 -- Defendant, knowing he was HIV positive and had hepatitis, spit in an officer's face. On a felonious assault count the court concludes appellant's knowledge of his illness meant he knew his spit was a deadly weapon. This, combined with his approach to spit in the officer's face, supported conviction. On the attempted felonious assault count the court concludes the fact the officer has so far not tested positive does not mean appellant did not engage in an act which if successful would have resulted in serious physical harm. Compare Justice Pfeifer's dissent in State v. Bird (1998), 81 Ohio St. 3d 582, 586-587. Majority there did not decide whether saliva could be a deadly weapon.
 
State v. Kaeff, Montgomery App. No. 20519, 2004-Ohio-5288 -- In a felonious assault case premised on strangulation, the defendant's hands do not fall within the statutory definition of "deadly weapon."
 
In re Smith (2001), 142 Ohio App. 3d 16, 24 -- A ballpoint pen may be a deadly weapon if wielded with sufficient force and intent.
 
State v. Schooler, Montgomery App. No. 19627, 2003-Ohio-6248 -- Though a pocket knife is not a deadly weapon per se, use to impose multiple stab wounds which might have been deadly if an artery were struck was sufficient to establish the deadly weapon element of felonious assault. Knife was not recovered.
 
In re R.R., 138 Ohio Misc.2d 9, 2004-Ohio-7364 -- A BB gun is not a deadly weapon per se. Absent production of the gun in question, and given that pellets did not penetrate clothing or require medical attention, conviction entered for assault, not felonious assault as charged.
 
State v. Macias, Darke App. No. 1562, 2003-Ohio-1565 ¶ 37 -- Although almost any hard object may be used as a bludgeon, there must be proof that an inoperable or fake gun was possessed, carried or used as a bludgeon.
 
In re Fortney, 162 Ohio App. 3d 170, 2005-Ohio-3618, ¶37-41 -- A stick may be a deadly weapon.
 
State v. Bird (1998), 81 Ohio St. 3d 582 -- Court fails to decide whether spit or saliva probably carrying the AIDS virus is a deadly weapon. Defendant's no contest plea accepted this characterization as alleged in the indictment.
 
State v. Luckey (1974), 69 Ohio Ops. 2d 111 -- While some weapons are dangerous (deadly) per se, almost any object can be a dangerous weapon if put to a use likely to cause death or great bodily harm.
 
State v. Powers (1995), 106 Ohio App. 3d 696 -- Wrench and brush wrapped together to look like a gun was a deadly weapon since the wrench was heavy enough to cause death if used as a bludgeon.
 
Columbus v. Dawson (1986), 28 Ohio App. 3d 45 -- A knife is not presumed to be a deadly weapon. Design, possession or use for such purpose must be proven by prosecution. Also see State v. Sears (1980), 18 Ohio Ops. 2d 126.
 
State v. Deboe (1977), 62 Ohio App. 2d 192 -- Baseball bat used as a club can be a deadly weapon.
 
State v. Meek (1978), 53 Ohio St. 2d 35 -- A unloaded gun is a deadly weapon because while it cannot expel a projectile, it can be used as a bludgeon. Also see State v. Tate (1978), 54 Ohio St. 2d 444.
 
State v. Vondenberg (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 that it is a "deadly weapon" for purposes of an aggravated robbery charge. Nature of an object may be inferred from the facts and circumstances of its use. Also see State v. Jordan (1987), 31 Ohio App. 3d 187. (Note: these cases do not directly address firearm specifications, though the same logic would apply.)
 
State v. Hicks (1984), 14 Ohio App. 3d 25 -- A toy pistol is a "deadly weapon," although it is not a "firearm." Also see State v. Gray (1984), 20 Ohio App. 3d 318 (BB gun); State v. Marshall (1978), 61 Ohio App. 2d 84 (plugged handgun).
 
State v. Brown (1995), 101 Ohio App. 3d 784 -- Though a BB gun may be a deadly weapon if used as a bludgeon, or if shown to be unusually powerful, it is not a deadly weapon per se. Felonious assault conviction reduced to simple assault absent proof that particular BB gun was capable of inflicting death either as a bludgeon or otherwise. Also see State v. Mills (1991), 73 Ohio App. 3d 27
 
State v. Bonner (1997), 118 Ohio App. 3d 815 -- Broken cap pistol was used in a robbery. Defendant struck the defendant with his fist, but not the gun. Circumstances allowed inference toy was a deadly weapon.
 
State v. Coney (February 16, 1995), Franklin Co. App. No. 94APA05-670 -- Expert testimony was not required to establish that scissors involved in a felonious assault prosecution were in fact a deadly weapon.
 
State v. Cornette (January 25, 1990), Franklin Co. App. Nos. 89AP-717, 718, unreported (1990 Opinions 252, 256) -- An automobile can be a deadly weapon if used as such, but it must be proven that the defendant intended to use his vehicle as a deadly weapon and did not merely attempt to flee the scene. Also see State v. Orlett (1975), 44 Ohio Misc. 7, 10; State v. Brandon (February 7, 1985), Franklin Co. App. No. 84AP-829, unreported (1985 Opinions 327).
 
State v. Brooks (1989), 44 Ohio St. 3d 185 -- Syllabus: "The act of pointing a deadly weapon at another, without additional evidence regarding the actor's intention, is insufficient evidence to convict a defendant of felonious assault as defined by R.C. 2903.11(A)(2)." Also see State v. Kline (1983), 11 Ohio App. 3d 208; State v. Lester (July 1, 1993) Franklin Co. App. No. 92AP-1376, unreported (1993 Opinions 2832).
 

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Published by David L. Strait
 
Copyright © Franklin County Public Defender and David L. Strait, 2015
 
Contents may not be duplicated without express permission.

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