Summary
In Beasley, a woman was transporting her revolver in a closed bag "gun purse" which was found on the floorboard of her car.
Summary of this case from State v. DavisOpinion
No. 82-378
Decided March 16, 1983.
Criminal law — Carrying a concealed weapon — R.C. 2923.12(A) — Applicability of affirmative defenses recited in R.C. 2923.12(C)(4) and 2923.16(C) — "Ready at hand" and "may be readily picked up and used," construed — State fails to prove essential element of offense, when.
O.Jur 3d Criminal Law § 2386.
The affirmative defenses to a violation of R.C. 2923.12(A) recited in R.C. 2923.12(C)(4) and 2923.16(C) operate notwithstanding the deadly weapon is concealed "ready at hand."
APPEAL from the Court of Appeals for Hamilton County.
At about 3:20 a.m. on Sunday, November 9, 1980, two uniformed officers in a marked police vehicle saw appellee, Geraldine Beasley, turn onto Reading Road in Cincinnati and drive directly over the broken white line dividing the two northbound lanes instead of staying in one of the two marked lanes in her direction of travel, a minor traffic violation. The officers turned on the flashing blue lights and the overhead light of their police cruiser, but appellee proceeded for another city block before she stopped. In the meantime, the officers saw her look in the rear vision mirror and turn her head to look back at them. She then busied herself with some object to her right, raising her right arm or elbow as high as the top of the front seat three times. After the third time, she leaned forward and down to the right "as if she was placing something on the floor." When both vehicles were stopped, the officers left their cruiser with guns drawn and walked forward to her car. Appellee was still nervously making movements towards the front passenger seat. She was taken out of the automobile and patted down. No weapon was found on her person. One of the officers went to the front seat of appellee's vehicle, observed an open purse on the front seat and a black pouch, half under the passenger side of the front seat and half exposed. Feeling the pouch, he concluded that it contained a weapon and he removed it from the vehicle.
The pouch was a simple two-sided bag, ten inches by seven and one-half inches, made of thin black plastic. Its zippered opening was closed. When opened the pouch was found to contain the three components of a disassembled H R .32 caliber revolver and five loose rounds of live .32 caliber S W ammunition. The empty cylinder was completely removed from its operative position in the frame of the weapon, as was the rod that would hold it in position and serve as the axle around which the cylinder would revolve. The barrel was two and one-half inches in length.
Appellee was convicted in a trial without a jury of carrying a concealed weapon ready at hand in violation of R.C. 2923.12(A). Because the weapon was a firearm (R.C. 2923.11[B]) for which she had ammunition ready at hand, she was sentenced to imprisonment for one to ten years, under R.C. 2923.12(D).
"No person shall knowingly carry or have, concealed on his person or concealed ready at hand, any deadly weapon or dangerous ordnance."
The Committee Comment to R.C. 2923.12 interprets division (A) as follows:
"This section prohibits having or carrying any deadly weapon or dangerous ordnance, either concealed on one's person, or concealed where it may readily be picked up and used." (Emphasis added.)
Appellee claimed, and corroborated at trial, that she had the weapon with her because she was proceeding to the house of a friend for the night prior to going to a target range the next morning for shooting practice. She asserted the affirmative defense that under R.C. 2923.12(C)(4), the weapon was being transported in a motor vehicle for a lawful purpose, unloaded, not on her person and in a closed package or case.
R.C. 2923.12(C) reads, in part, as follows:
"It is an affirmative defense to a charge under this section of carrying or having control of a weapon other than dangerous ordnance, that the actor was not otherwise prohibited by law from having the weapon and that any of the following apply:
"* * *
"(4) The weapon was being transported in a motor vehicle for any lawful purpose, and was not on the actor's person, and, if the weapon was a firearm, was carried in compliance with the applicable requirements of division (C) of section 2923.16 of the Revised Code."
R.C. 2923.16(C) reads as follows:
"No person shall knowingly transport or have a firearm in a motor vehicle, unless it is unloaded, and is carried in one of the following ways:
"(1) In a closed package, box, or case:
"(2) In a compartment which can be reached only by leaving the vehicle;
"(3) In plain sight and secured in a rack or holder made for the purpose;
"(4) In plain sight with the action open or the weapon stripped, or, if the firearm is of a type on which the action will not stay open or which cannot easily be stripped, in plain sight."
The trial court gave consideration to the affirmative defense claimed under R.C. 2923.12(C)(4), but rejected it because under that court's interpretation of the statute, the revolver was "concealed ready at hand." The trial court avoided making any specific finding about whether the appellee was transporting the revolver "for any lawful purpose," stating that if her statement about going to target practice in the morning was true, then "that certainly is a lawful purpose."
The court of appeals, one judge dissenting, reversed, finding the weapon was not "ready at hand" within the contemplation of R.C. 2923.12(A), stating:
"* * * The uncontroverted evidence established that it was a deadly weapon under R.C. 2923.11(A) as well as an operable firearm under R.C. 2923.11(B), and that it was concealed from view when seized by the police officer. It was, however, unloaded, inside a zippered pouch, and inoperable at the moment because it was stripped. It could be made an operable weapon capable of inflicting personal harm or death only by using both hands to unzip the pouch, remove the contents, load the cylinder, and reassemble the revolver. This would take an appreciable period of time. We believe that the revolver could not readily be made operable, and that it was not `ready at hand' within the intended meaning of R.C. 2923.12(A)."
The arresting officer testified that he assembled the three components into an operable firearm in ten seconds, despite his unfamiliarity with the revolver. The record, however, is silent on the time it would take to unzip the pouch, remove the contents and load the cylinder prior to reassembly.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Simon L. Leis, Jr., prosecuting attorney, Mr. Christian J. Schaefer and Ms. Melba Marsh, for appellant.
Mr. Hal R. Arenstein, for appellee.
We affirm the court of appeals because the undisputed facts as found by the trial court and recited in this decision establish conclusively the affirmative defense that the gun was lawfully being transported in a motor vehicle for a lawful purpose, not on the actor's person, but in a closed case.
Accordingly, all four propositions of law articulated by the state which deal with the element of the crime "ready at hand" are inapposite and not reached.
This being an affirmative defense, it is a logical truism that the General Assembly intended it to operate notwithstanding that the firearm is both concealed and also "ready at hand."
The trial court reasoned erroneously that the affirmative defense was not established because the state had proved the element of the crime "ready at hand."
Correctly speaking, had the concealed firearm not been "ready at hand" the accused would be entitled to acquittal because of a missing element in the state's case. It is not correct to characterize absence of proof of an element of the crime as an affirmative defense. Affirmative defenses are never in point unless all the elements of the state's case are first shown.
The instant weapon was concededly neither in plain sight, nor in the trunk of appellee's vehicle so that, as stated by the dissenting judge in the court of appeals, appellee's dependence was necessarily on R.C. 2923.16(C)(1), viz., whether a thin plastic zippered pouch in which the weapon and its ammunition rested, and resembling an inexpensive cosmetics bag, was a "closed package, box, or case." The trial judge argued that it was not, stating:
"I believe it was the intent of the legislature in adopting all these rules, to prevent the weapon being readily available. It would be sheer foolishness to say that a box not secured in any way, just a cardboard carton with the lid folded over, excused a person from carrying a concealed weapon when that lid could be flipped up and the weapon obtained immediately.
"The intent of the legislature was to make certain that the weapon was not readily at hand, and the Court so interprets the provision of Section 2923.16."
The package, box, or case specified in R.C. 2923.16(C)(1) need only be "closed." In subdivision (C)(3) thereof the requirement of "secured" is specified. Had "secured" been intended to apply to the items in subdivision (C)(1), the General Assembly would have so stated.
Claims that plain legislative enactments are "sheer foolishness" are properly addressed to the General Assembly, not the judiciary.
As a matter of simple fair play in criminal practice, the law-abiding public is entitled to rely upon the common meaning of statutory words. Justice Oliver Wendell Holmes, speaking for the court in McBoyle v. United States (1931), 283 U.S. 25, 27, stated:
"* * * a fair warning should be given to the world in language that the world will understand * * *."
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
SWEENEY, MAHONEY and C. BROWN, JJ., concur.
MAHONEY, J., of the Ninth Appellate District, sitting for LOCHER, J.
PUTMAN, J., of the Fifth Appellate District, sitting by assignment.
CELEBREZZE, C.J. I believe the decision of the court of appeals should be affirmed, but I reach my conclusion for reasons so dissimilar to the rationale of Judge Putman that I am constrained to write separately.
Judge Putman states that, "* * * the undisputed facts * * * establish conclusively the affirmative defense that the gun was lawfully being transported in a motor vehicle for a lawful purpose * * *." Thus, Judge Putman assumes that the state produced sufficient evidence of all the necessary elements of the offense of carrying a concealed weapon as defined in R.C. 2923.12(A). In my view, such an assumption is improper, because the preliminary issue of whether the state offered evidence sufficient to convince the finder of fact beyond a reasonable doubt of the existence of the necessary elements of the crime must first be resolved.
R.C. 2923.12(A) states that:
"No person shall knowingly carry or have, concealed on his person or concealed ready at hand, any deadly weapon or dangerous ordnance." (Emphasis added.)
There is no question that the appellee did not have the weapon concealed on her person. As such, it is clear that in order to convict under R.C. 2923.12(A), the state must prove beyond a reasonable doubt that the weapon was "ready at hand."
In the case sub judice, it is uncontroverted that this weapon was unloaded, inside a zippered pouch, and, in fact, disassembled. As recognized by the court of appeals below, it would have taken two hands and an appreciable length of time for appellee to remove the weapon from the pouch and to assemble and load it; all while continuing to drive her car. I do not believe the General Assembly intended that individuals be guilty of violating R.C. 2923.12 under such circumstances.
The Committee Comment to R.C. 2923.12 states:
"The section prohibits having or carrying any deadly weapon or dangerous ordnance, either concealed or on one's person, or concealed where it may be readily picked up and used." (Emphasis added.)
Thus, the General Assembly has considered "ready at hand" with "may be readily picked up and used." In the instant cause, if appellee had "picked up" her weapon, it certainly would not have been capable of being "used" in its condition. Hence, there is insufficient evidence of record to sustain appellee's conviction. In this regard, there is no need whatsoever to reach the issue of the viability of appellee's affirmative defense.
Accordingly, for the reason that the state failed to prove an essential element of the offense, I would likewise affirm the court of appeals.
W. BROWN, SWEENEY and C. BROWN, JJ., concur.
I concur separately expressing the view that the opinion of Judge Putman accurately determined that the undisputed facts found by the trial court conclusively establish the affirmative defense that the gun was lawfully transported for a lawful purpose, and that the opinion of Chief Justice Celebrezze accurately concludes that the state failed to prove beyond a reasonable doubt an essential element of the offense, namely, that the weapon was "ready at hand" within the meaning of R.C. 2923.12(A).
HOLMES, J., concurs in judgment only.