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

FIREARM SPECIFICATIONS (012)

Also see Weapons Offenses; Carrying Concealed Weapons; Deadly Weapons.

 

Pleading issues

Proof weapon is a firearm

Single or multiple transactions

Sentencing issues

Juveniles

Other issues

 

R.C. 2923.11(B) -- Firearm defined.

R.C. 2929.14(D) -- Additional term of mandatory incarceration for offenses involving a firearm.

R.C. 2941.141 -- Requirements as to form of one year firearm specification.

R.C. 2941.144 -- Requirements as to form of six year firearm specification.

R.C. 2941.145 -- Requirements as to form for three years firearm specification.

R.C. 2941.146 -- Requirements as to form for drive by specification.

Pleading issues

State v. Loines (1984), 20 Ohio App. 3d 69 -- Additional time on firearm specification may not be imposed if indictment does not carry specification.

State v. Tyson (1984), 19 Ohio App. 3d 90 -- Before an additional term may be imposed for a firearm specification, there must be a separate guilty plea or conviction entered on the specification.

State v. Chapman (1986), 21 Ohio St. 3d 41 -- Syllabus: "An individual indicted for and convicted of R.C. 2911.01, aggravated robbery, and R.C. 2941.141, a firearm specification, is subject to a mandatory three-year term of actual incarceration under R.C. 2929.71, regardless of whether he was the principle offender or an unarmed accomplice. (State v. Moore [1985], 16 Ohio St. 3d 30, followed.) Also see State v. Sims (1984), 13 Ohio App. 3d 287.

State v. Dapice (1989), 57 Ohio App. 3d 99 -- Firearm specification may be added when defendant furnished weapon to co-conspirator, even though co-conspirator was a police informant and never intended to use the weapon.

State v. Lytle (1990), 49 Ohio St. 3d 154 -- Syllabus: "Where a defendant is convicted of a third or fourth-degree felony that is a lesser included offense of a felony of greater degree, and where the felony of greater degree is charged in the indictment and is accompanied by a firearm specification, pursuant to R.C. 2941.141(A), the firearm specification applies to the lesser included offense." Also see State v. Gaughan (1995), 103 Ohio App. 3d 169.

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Proof weapon is a firearm

State v. Macias, Darke App. No. 1562, 2003-Ohio-1565 -- Though the appearance of a object, and the manner in which it was used, may mean conviction on a firearm specification was supported by sufficient evidence, references to a fake gun lead to the conclusion conviction was against the manifest weight of the evidence.

State v. Gaines (1989), 46 Ohio St. 3d 65 -- "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."

State v. Thompkins (1997), 78 Ohio St. 3d 380 -- Paragraph one of the syllabus: "A firearm specification can be proven beyond a reasonable doubt by circumstantial evidence. In determining whether an individual was in possession of a firearm and whether the firearm was operable or capable of being rendered readily operable at the time of the offense, the trier of fact may consider all relevant facts and circumstances surrounding the crime, which include any implicit threat made by the individual in control of the firearm..." Also see State v. Murphy (1990), 49 Ohio St. 3d 206.

State v. Koren (1995), 100 Ohio App. 3d 358, 365 -- Operability was not proven where there was no evidence of gunshots, smell of gunpowder, bullets, bullet holes, or verbal threats, and evidence that the gun had been tested and found operable was inadmissible as the weapon had been illegally seized. Also see State v. Butler (1994), 97 Ohio App. 3d 322, 330; State v. Phillips (1990), 69 Ohio App. 3d 379; State v. Mills (1991), 73 Ohio App. 3d 27; State v. Soke (1989), 65 Ohio App. 3d 590, 596; Sanders v. McMackin (N.D. Ohio 1992), 786 F. Supp. 672.

State v. Vasquez (1984), 18 Ohio App. 3d 92 -- Manner in which weapon is used may be basis for inferring it is a "firearm." Also see State v. Habtemarian (1995), 103 Ohio App. 3d 425 (one victim was familiar with firearms and heard a click as the gun was cocked); 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 it is a "deadly weapon" for purposes of a aggravated robbery charge - nature of object may be inferred from the facts and circumstances of its use); State v. Jordan (1987), 31 Ohio App. 3d 187.

State v. Mann (1993), 93 Ohio App. 3d 301, 311 -- Though the gun was broken at the time of trial, operability was sufficiently established by testimony of a police officer that the gun was loaded and field test showed hammer and firing pin worked.

State v. Thundercloud Way (1989), 49 Ohio App. 3d 3 -- Finding in verdict form that defendant was in possession of a "deadly weapon" insufficient to sustain "firearm" specification conviction. Weapon had to qualify as a "firearm" within the definition of R.C. 2923.11(B).

State v. Boyce (1985), 21 Ohio App. 3d 153 -- Proof sufficient to establish a weapon is a "deadly weapon" is not sufficient to establish that it was a "firearm." If weapon is not produced, must at least be circumstantial evidence it met the statutory definition of a firearm, in that it was capable of expelling a projectile.

State v. Gray (1984), 20 Ohio App. 3d 318 -- A BB gun may be a "deadly weapon," but it is not a "firearm."

State v. Phillips (1993), 88 Ohio App. 3d 409 -- Doctrine of res judicata applied to bar litigation in post-conviction action of issue of proof of operability of firearm previously raised on direct appeal.

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Single or multiple transactions

State v. Franklin, 178 Ohio App. 3d 460, 2008-Ohio-4811 -- Charges arising from a chase with shots fired led to conviction on seven five-year firearm specifications, which were run consecutively. Specifications arose from the same transaction and should have merged.

State v. Stevens, 179 Ohio App. 3d 97, 2008-Ohio-5775 – Defendant burst into a home brandishing a gun and demanded drugs and money from everyone present. There was a single criminal objective, thus firearm specifications merged.

State v. Moore, 161 Ohio App. 3d 778, 2005-Ohio-3311, ¶27-55 -- Transaction means a series of criminal acts bound together by time, space and purpose and directed towards a single objective. Alternately, firearm specifications merge if they arise from a single criminal adventure. Court rejects the "animus" test followed in the Twelfth District.

State v. Kehoe (1999), 133 Ohio App. 3d 591, 616-617 -- Shots fired at one officer from inside vehicle, followed by aiming gun at a second officer before fleeing, constituted separate transactions.

State v. Hughley (1984), 20 Ohio App. 3d 77 -- Where multiple counts of aggravated robbery arise from the same transaction, only one three-year term of actual incarceration may be imposed. Also see State v. Moore (1984), 20 Ohio App. 3d 75; State v. Houseman (1990), 70 Ohio App. 3d 499 (multiple offenses, some in same transaction, some not); State v. Billups (1990), 68 Ohio App. 3d 248, 258-259 (ten offenses but only two transactions).

State v. Wills (1994), 69 Ohio St. 3d 690 -- "Transaction" means a series of continuous acts bound together by time, space and purpose and directed toward a single objective. Where the defendant took an athletic jacket from one victim at gunpoint, then crossed the street and took a second jacket from a second victim, there were two transactions, and thus should have been two consecutive terms of actual incarceration. Also see State v. Ayala (1996), 111 Ohio App. 3d 627, 631-632.

State v. White (1991), 71 Ohio App. 3d 550 -- Where aggravated robbery and felonious assault were committed in close proximity and in sequence, but were not logically connected, separate three year terms of actual incarceration may be imposed.

State v. Salinas (1997), 124 Ohio App. 3d 379, 387-388 -- Defendant was convicted of three counts of felonious assault after emptying his handgun from a vehicle, striking three houses. Since his objective was to empty the gun in order to scare another resident of the street, events amounted to a single transaction permitting one, not three, terms on firearm specifications.

State v. Williams (1996), 115 Ohio App. 3d 24, 32-35 -- Second officer was hit by a stray bullet in gun battle between defendant and another officer. Imposition of two three year terms on firearm specifications reversed as plain error.

State v. Berry (June 29, 1999), Franklin Co. App. Nos. 97AP-964 and 98AP-256, unreported (1999 Opinions 1782, 1816) -- "We conclude that appellant having a weapon while under a disability and commission of the aggravated murder, aggravated robbery, aggravated burglary and kidnapping were bound together by time and space, and were committed as part of the same act or transaction."

State v. Dougherty (1994), 99 Ohio App. 3d 265 -- Theft of vehicles, followed by return to steal another were two separate transactions because the first theft had been completed. Murder of a witness upon return was a separate transaction because the objective (elimination of a witness) was different.

State v. Gregory (1993), 90 Ohio App. 3d 124 -- Defendant fired shots at a police cruiser he knew contained two officers. While he could be convicted and consecutively sentenced for two counts of felonious assault, since the offenses were committed separately, he could be sentenced to only one three year term of actual incarceration for firearm specifications, as the offenses arose from the same transaction.

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Sentencing issues

Watson v. U.S. (2007), 128 S.Ct. 579 – Defendant traded a pistol for drugs. In federal court the defendant was convicted of use of a firearm during and in relation to a drug offense, which carries a mandatory minimum sentence. Held that such a swap does not constitute "use."

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 within the categories permitting time on a firearm specification on a related weapon under disability charge.

State v. Dixson, Hamilton App. No. 030227, 2004-Ohio-2575, ¶37-41 -- When imposing the five year sentence on a drive-by specification, the court must also impose a consecutive one or three year sentence on a possession or use specification. Also see State v. Bates, Franklin App. No. 03AP-893, 2004-Ohio-4224.

State v. Williams (1989), 65 Ohio App. 3d 70 -- Criminal Rule 11 not complied with when court failed to inform the defendant of the consequences of pleading guilty to a firearm specification.

State v. Blankenship (1995), 102 Ohio App. 3d 534, 547 -- Court rejects claim that having a weapon under disability and attached firearm specification are allied offenses of similar import, or that being sentenced on both is a double jeopardy violation.

Morgan v. Ohio Adult Parole Authority (1994), 68 Ohio St. 3d 344 -- Court rejects claim that somehow the defendant was to be credited by the APA for time served on a firearm specification against the five year maximum of his indeterminate sentence. The three year term must be completely served before a defendant begins to serve the balance of his sentence.

State v. Ervin (1994), 93 Ohio App. 3d 178 -- If the defendant is found guilty of an offense committed with a firearm, he is ineligible for probation, even though the jury has acquitted him on a firearm specification. See dissent. Different result follows for offenses committed after July 1, 1996.

State v. Smith (1993), 89 Ohio App. 3d 497 -- The fifteen year to life sentence applicable to murder is an indefinite sentence to which an additional three year term for a firearm specification may be added.

State v. Thomas (1996), 111 Ohio App. 3d 510 -- Court could add mandatory time on firearm spec. even though prosecutor had not objected at the time of sentencing and case had already been decided by the Court of Appeals.

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Juveniles

In re Howard, 150 Ohio App. 3d 1, 2002-Ohio-6004 -- Under the statutes governing early release in effect prior to January 1, 2002, a juvenile was eligible for release after serving half of the minimum term of commitment, with no distinction being drawn between time on firearm specifications and other time.

In re Good (1997), 118 Ohio App. 3d 371 -- Court finds no error in sentencing juvenile to an additional three years on a firearm specification, where the specification was not a part of the complaint. Juvenile had notice from proceedings. Specification complaint may have existed, but been misplaced.

In re B.S. (1998), 103 Ohio Misc. 2d 34 -- In mandatory bindover proceedings, the state must establish probable cause as to the firearm specification as well as to the offense charged.

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Other issues

State v. Holmes, 181 Ohio App. 3d 397, 2009-Ohio-1241 – Upon appellate review of the sufficiency of the evidence, the reviewing court may find the evidence supports conviction on a lesser included offense or firearm specification. Defendant and her cousin were waiting outside a KFC with a gun to commit a robbery. Evidence did not support aggravated robbery conviction, because the element of brandishing, display, use or indication of possession had not yet been committed. Furthermore, the evidence supported a one-year firearm specification, but not a three-year spec.

State v. Hous, Greene App. No. 02CA116, 2004-Ohio-666 -- Burglar's theft of guns sufficient for conviction on firearm specification. State v. Jackson, 169 Ohio App. 3d 440, 2006-Ohio-6059 -- Complicity in an underlying offense and complicity with respect to firearm specifications are separate issues. Complicity in robbery and felonious assault was proven, but the defendant's gun was in another room, and a second gun in the possession of the principal offender was not proven operable.

State v. Powell (1991), 59 Ohio St. 3d 62 -- The crime of aggravated burglary continues so long as the burglar remains in the structure being burglarized. Consequently, if a gun is taken during the burglary, it may be the basis for a firearm specification. Compare State v. Rogers (1990), 68 Ohio App. 3d 4 where shortly after the rape was concluded, the defendant removed a gun from a gun rack and threatened to kill the victim if she reported what had happened. Operability was proven, but conviction on specification was reversed as the defendant was not in possession of the gun at the time of the offense.

State v. Boyd (1996), 110 Ohio App. 3d 13 -- Defendant was convicted of aggravated robbery, but acquitted on firearm specification. No reversal because verdicts are inconsistent. Opinion mistakenly characterizes firearm specification as a separate offense. Better view would be that while there may appear to be an internal inconsistency within a single count, aggravated robbery is premised on the use of a deadly weapon, not limited to firearms.

State v. Courtney (1985), 25 Ohio App. 3d 12 -- R.C. 2929.71 is not void for vagueness or impossible to apply.

State v. Mullins (1986), 34 Ohio App. 3d 192 -- (1) Additional three-year term for use of firearm is not cruel and unusual punishment. (2) Firearm specification may be added only to offenses committed after statute's initial effective date of September 17, 1986. Also see State v. Jones (1983) 13 Ohio App. 3d 65.

McMillan v. Pennsylvania (1986), 477 U.S. 67 -- When visible possession of a firearm is a sentencing consideration and neither increases the degree of the offense or adds to the penalty, due process does not require that possession be proven beyond a reasonable doubt.

State v. Vasquez (1984), 18 Ohio App. 3d 92 -- Added time for firearm specification in aggravated robbery prosecution is not contrary to the Double Jeopardy Clause. Also see Missouri v. Hunter (1983), 459 U.S. 359; State v. Sims (1984), 19 Ohio App. 3d 87; State v. Loines (1984), 20 Ohio App. 3d 69; State v. Price (1985), 24 Ohio App. 3d 186.

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