State v. Gaines

Holmes, J.,

dissenting. I concur, in the main, with the thoughts expressed by Justice Resnick in her dissent. R.C. 2929.71 is a narrowly drawn statute designed to deter the use of guns by criminals. Reference within this statute to the definition of “firearm” contained in R.C. 2923.11(B) was necessary to distinguish other deadly weapons from the uniquely dangerous nature of hand-carried ballistics. The legislature did not intend to deter only the firing of firearms, but also the use of such firearms during the commission of a felony. In this respect, our unanimous decision in State v. Vondenberg (1980), 61 Ohio St. 2d 285, 288 , 15 O.O. 3d 349, 350-351, 401 N.E. 2d 437, 439 , is anything but inapposite:

“ ‘* * * “To require the State to prove that the instrumentalities used by the robbers in accomplishing a robbery, such as revolvers * * * which ordinarily are so used only when loaded and capable of dealing out injury and death, are in fact what they purport to be from the very nature of the use made of them by the robbers, would defeat the object and purpose of * * * [the statute] because it is quite unusual to apprehend the robbers in the act and before they have had an opportunity to carry away with them from the scene of the crime the weapons used by them to effect its perpetration.” State v. Kowertz (1930), 324 Mo. 748, 754 , 25 S.W. 2d 113 .’ ” Quoting State v. Meek (1978), 53 Ohio St. 2d 35, 38-39 , 7 O.O. 3d 121, 123, 372 N.E. 2d 341, 343-344 .

Every firearm is, by definition, a deadly weapon. Indeed, this court in Vondenberg, supra, utilized the definition of “firearm” contained in R.C. 2923.11(B) in its analysis of the term “deadly weapon” under the facts of that case. Id. at 288 , 15 O.O. 3d at 351, 401 N.E. 2d at 439 . Thus, the same degree of proof necessary to establish the presence of a “deadly weapon,” as *70 set forth in Vondenberg , 2 must be sufficient to establish the presence of a firearm for purposes of the enhancement statute, R.C. 2929.71, where such deadly weapon is used by the defendant as an operable gun and is perceived by the victims as such. This degree of proof, as stated by Justice Resnick, is that necessary “to establish from the totality of the circumstances, including reasonable inferences from the evidence presented, that the defendant had a firearm on or about his person or under his control.” Accord State v. Jordan (1987), 31 Ohio App. 3d 187 , 31 OBR 353, 509 N.E. 2d 1278 ; State v. Vasquez (1984), 18 Ohio App. 3d 92 , 18 OBR 455, 481 N.E. 2d 640 ; State v. Rockett (Dec. 26, 1984), Hamilton App. No. C-840073, unreported.

The majority observes that not all “deadly weapons” are “firearms,” citing the examples of BB guns, pellet guns, and toy guns or inoperable guns which may be used as bludgeons. Such distinctions do not serve to raise the state’s burden of proof as to the presence of a firearm, but rather, as a reasonable consequence of the permissible Vondenberg inferences, to shift the burden to the defendant to prove by a preponderance of the evidence his affirmative defense that the weapon could not “readily be rendered operable,” or does not employ an “explosive or combustible propellant.” Accord State v. Rockett, supra. Thus, as is typically done in the cases such as those cited by the majority on this point, where the state has presented sufficient evidence, including all permissible inferences therefrom, that the defendant had a firearm on or about his person or under his control during the commission of a felony, the burden of establishing an affirmative defense by a preponderance of the evidence should shift to the defendant, who must establish that the weapon used in the commission of a felony was not a “firearm” as defined in R.C. 2923.11 (B).

By enacting R.C. 2929.71, the General Assembly intended to caution criminals that their possession of a firearm while committing a felony would cost them three years of their lives in prison. 3 Following today’s decision, however, such admonition holds true only in the event that the criminal is caught in the act or in the event that the criminal fires such weapon during the crime. Because I believe such a *71 result is contrary to the purpose and intent of the firearm penalty enhancement statute, R.C. 2929.71, I must respectfully dissent.

“* * * In determining this issue, we apply the general evidentiary rule that when direct evidence of a fact, in this instance the use of a deadly weapon, is not obtainable, proper inferences may be drawn from the presentation of other facts. Here, testimony was presented as to the use of a gun during the robbery which allowed the jury to make an inference that the defendant used a deadly weapon.

“Where there is credible evidence that there was a gun used in a robbery, and when that gun is not available for testing, it is not necessary for the state to prove that the gun could actually fire a projectile in order to sustain a conviction for aggravated robbery. A jury is permitted to infer the deadly nature of an instrument from the facts and circumstances of its use. The state should not be required to produce the weapon in order to secure a conviction for aggravated robbery. To do so would emasculate R.C. 2911.01, and reward those armed robbers who have the fortune to escape the scene of the crime, and the foresight to destroy or conceal the weapons before they are apprehended.” Vondenberg, supra, at 288-289 , 15 O.O. 3d at 351, 401 N.E. 2d at 439-440 .

Exemplary of this is the anti-crime placard distributed by the Governor’s office to local police authorities following the enactment of this law. (Reproduced infra.)