State v. Gaines
| Decision Date | 11 October 1989 |
| Docket Number | No. 88-323,88-323 |
| Citation | 545 N.E.2d 68,46 Ohio St.3d 65 |
| Parties | The STATE of Ohio, Appellant, v. GAINES, Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
R.C. 2923.11(B) and 2929.71(A) require that, prior to imposition of an additional term of three years' actual incarceration for possession of a firearm during the commission of a felony, the state must prove beyond a reasonable doubt that the firearm was operable or could readily have been rendered operable at the time of the offense.
On March 10, 1986, defendant-appellee, Dennis Gaines, was indicted by the Scioto County Grand Jury for aggravated robbery, with a firearm specification, pursuant to R.C. 2911.01(A)(1) and 2929.71(A). On May 14, 1986, trial was commenced. During trial, various testimony was given relative to appellee's possession of a gun during the commission of the offense.
The state's initial witness, Timothy Munion, testified as follows:
After Munion's testimony, Sandra Rader testified as follows:
On rebuttal, Kevin McKnight testified on behalf of the state as follows:
Following trial, appellee was convicted of aggravated robbery with the firearm specification, and judgment was entered upon the verdict. On January 19, 1988, the court of appeals reversed, holding that there was insufficient evidence to support the firearm specification.
The court of appeals, finding its decision to be in conflict with the decision of the First Appellate District in State v. Jordan (1987), 31 Ohio App.3d 187, 31 OBR 353, 509 N.E.2d 1278, and the decision of the Sixth Appellate District in State v. Vasquez (1984), 18 Ohio App.3d 92, 18 OBR 455, 481 N.E.2d 640, certified the record of the cause to this court for review and final determination.
Lynn Alan Grimshaw, Pros. Atty., and R. Randolph Rumble, Portsmouth, for appellant.
Gloria Eyerly, Columbus, for appellee.
Randall M. Dana, Gregory L. Ayers and Barbara L. Farnbacher, Columbus, urging affirmance for amicus curiae, Ohio Public Defender Com'n.
Tataru, Wallace & Warner and Roger Warner, Columbus, urging affirmance for amicus curiae, Ohio Ass'n of Criminal Defense Lawyers.
The sole issue presented for review in the instant appeal concerns the evidentiary basis necessary to require additional incarceration under the firearm specification statute. Defendant-appellee was convicted of aggravated robbery in violation of R.C. 2911.01. This section provides in relevant part:
"Deadly weapon" is defined in R.C. 2923.11(A) as follows:
" 'Deadly weapon' means any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon."
In addition to his conviction for aggravated robbery, the jury further concluded that appellee was in possession of a firearm during the commission of the felony. The trial court thereafter imposed an additional term of three years' actual incarceration pursuant to R.C. 2929.71. This section provides in pertinent part:
R.C. 2923.11(B) defines "firearm" as follows:
(Emphasis added.)
It is the contention of the state that the terms "deadly weapon" and "firearm" are synonymous as applied to guns, and that evidence sufficient to support the conclusion that the accused was in possession of a gun that was a deadly weapon pursuant to R.C. 2911.01(A)(1) is also sufficient to establish that the accused was also in possession of a firearm pursuant to R.C. 2929.71(A). This view is not supported by the statutory language.
As an initial matter, R.C. 2923.11(B) defines "firearm" as a deadly weapon capable of expelling a projectile. If the General Assembly had intended that the two terms be synonymous there would have been no need to further define "firearm" in R.C. 2923.11(B) with respect to its operability. Moreover, there would be no need to separately define "deadly weapon" and "firearm" in R.C. 2923.11(A) and (B), respectively.
Secondly, if the requirements for the firearm specification contained in R.C. 2929.71 were satisfied merely by proof sufficient to support a conviction for aggravated robbery under R.C. 2911.01(A)(1), the firearm specification statute would be superfluous. If, indeed, the General Assembly intended to impose a three-year mandatory term of imprisonment for possession of a deadly weapon during the commission of a felony, it could have so provided within the framework of R.C. 2911.01(A)(1). 1
The state relies upon State v. Vondenberg (1980), 61 Ohio St.2d 285, 15 O.O.3d 349, 401 N.E.2d 437, to support its contention. However, Vondenberg is inapposite to the issue involved in this appeal. The syllabus to Vondenberg provides as follows:
"For purposes of establishing the crime of aggravated robbery, a jury is entitled to draw all the reasonable inferences from the evidence presented that the robbery was committed with the use of a gun, and it is not necessary that the prosecution prove that the gun was capable of firing a projectile." (Emphasis added.)
Thus, Vondenberg was concerned only with the evidence necessary to establish the crime of aggravated robbery. That issue is not before this court. In point of fact, the firearm specification statute (effective July 1, 1983) was not in existence at the time Vondenberg was decided.
Consequently, commission of a felony while in the possession of an "instrument * * * capable of inflicting death, and designed or specially adapted for use as a weapon" is not synonymous with the commission of a felony while in the possession of a "deadly weapon capable of expelling or propelling * * * projectiles by the action of an explosive or combustible propellant." Examples of these distinctions are numerous. One may use a BB gun (State v. Ewing [Mar. 27, 1980], Cuyahoga App. No. 41080, unreported) or a pellet gun (State v. Scales [Sept. 27, 1979], Cuyahoga App. No. 39763, unreported) in the commission of a theft offense and be found guilty of aggravated robbery. Nevertheless, on identical facts one would not be subject to the three-year firearm specification since such weapons, although considered deadly weapons under R.C. 2923.11(B), do not employ an "explosive or combustible propellant" so as to come within the purview of R.C. 2929.71(A) by virtue of the definition contained in R.C. 2923.11(B). State v. Gray (1984), 20 Ohio App.3d 318, 20 OBR 420, 486 N.E.2d 159. Conversely, where the weapon used is inoperable, it may nevertheless be considered a deadly weapon even though it is not a firearm. Accordingly, convictions for aggravated robbery have been upheld even where a toy gun or an inoperable gun was used in the commission of the theft offense since such devices could be used as bludgeons and were therefore "capable of inflicting death" pursuant to R.C. 2911.01(A)(1) and 2923.11(A). See State v. Hicks (1984), 14 Ohio App.3d...
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