holding that the finding of "within one thousand feet of the boundaries of any school premises" is an essential element of the state's case-in-chief which must be proved beyond a reasonable doubt before an enhanced penalty can be imposed.
How later courts described this case
- holding that the finding of "within one thousand feet of the boundaries of any school premises" is an essential element of the state's case-in-chief which must be proved beyond a reasonable doubt before an enhanced penalty can be imposed.
- stating that convictions involving dishonesty, such as aggravated burglary, “this directly impacts on [a defendant’s] credibility regarding his testimony at trial”
- aggravated burglary, grand theft, and receiving stolen property
- burglary, grand theft, and receiving stolen property
Written by the judges who cited it.
The opinion
Thomas F. Bryant, Judge,
concurring separately.
I concur separately, for I agree with the judgment to be entered but disagree with the reasoning and application of authorities by the majority in its consideration of the first branch of appellant’s second assignment of error in reaching that result. While I agree that an essential element of the state’s required proof is missing, I disagree with the majority about which element of proof is lacking.
My review of the trial transcript discloses that no evidence of distance was introduced to prove the essential element of the specification concerning the occurrence of the transaction at issue within one thousand feet of a school. The sole pertinent reference to the subject of distance is contained in a question of the prosecutor eliciting the affirmative response of a state’s witness that he could “tell us if all of Smitty’s Motel is within one thousand feet of the boundaries of that school.” Following the overruling of the objection to that question interposed by defense counsel, the matter was pursued no further and the critical question of the fact of -distance was neither asked nor answered.
In the absence of evidence that the offense occurred within the proscribed distance from a school, the motion for acquittal on that precise issue should have been granted. This issue was preserved by the specific motion on the record. Thus I believe the issue of how and when the state must prove that a school is a school is unnecessarily decided.
*728
In my view, it is not only unnecessary but unwise, based on the record before us, to weigh the evidence adduced at trial and to gratuitously find plain
error in
order to adopt the restrictive evidentiary views of
State v. Gaines
(1989), 46 Ohio St.3d 65 , 545 N.E.2d 68 , cited in
State v. Mills
(1991), 73 Ohio App.3d 27 , 595 N.E.2d 1045 , concerning specifics of the quality and quantum of evidence necessary to carry the state’s burden of proof of guilt beyond a reasonable doubt.
3
By adopting this precedent as related in the majority opinion in the case now before us, we disregard the express modification of
Gaines
by
State v. Murphy
(1990), 49 Ohio St.3d 206 , 551 N.E.2d 932 , and the recognition of that modification in
Mills ,
permitting proof of the required element by some relevant circumstantial evidence.
I fear that in straining to require the state to introduce in its case-in-chief specific items of evidence to prove ownership of school realty where the fact that a school is a school is neither disputed nor challenged, we frustrate the purpose we recognize for enhanced penalty, exalting format over probity in order to do so.
When considering the evidence necessary to prove operability of a firearm in violation of R.C. 2923.11(B), a statute requiring for enhancement of penalty proof that an operable firearm was used in the offense prohibited by that statute, the Supreme Court held in
State v. Murphy, supra,
49 Ohio St.3d at 209 , 551 N.E.2d at 935 , that “such proof can be established beyond a reasonable doubt by the testimony of lay witnesses who were in a position to observe the instrument and the circumstances surrounding the crime. To rule otherwise would destroy the intent of the General Assembly to impose an additional term of three years’ actual imprisonment on those persons who use a firearm to carry out their criminal objectives.”
If it is sufficient circumstantial evidence of the operability of a firearm for a layman to testify only to the manner in which the firearm was displayed by the defendant and the minimal observations of the instrument then made, as in
Murphy,
I perceive no less sufficiency of testimony from a person who has observed the fact that a school is a school for the purposes of R.C. 2925.03(A)(1) and (E)(1). The weight to be assigned to such evidence is a jury question. See
State v. Jenks
(1991), 61 Ohio St.3d 259 , 574 N.E.2d 492 , paragraph two of the syllabus.
3
. Cf.
State v. Armstead
(1993), 85 Ohio App.3d 247 , 619 N.E.2d 513 , in which this court affirmed admission of circumstantial evidence alone in proof of “boundary lines” of “school premises.”