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State v. Pope

Court of Appeals of Ohio, First District, Hamilton

September 6, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JAERON POPE, SR., Defendant-Appellant.

          Appeal From: Hamilton County Municipal Court TRIAL NO. C-18CRB-19241A

         Judgment Appealed From Is: Affirmed

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Robinson & Jones Co., L.P.A, and Matthew E. Wiseman, for Defendant-Appellant.

          OPINION

          WINKLER, JUDGE.

         {¶1} After a bench trial, Jaeron Pope, Sr., was convicted of the weapons offense set forth in R.C. 2923.12(B)(4) for his failure to comply with a lawful order of a police officer, given during a traffic stop, when Pope was carrying a loaded and concealed handgun for which Pope had been issued a concealed handgun license. During the state's case, the prosecutor did not present evidence that the loaded handgun had been test-fired to determine if it was operable or could be readily rendered operable, a necessary element of the offense. Pope moved under Crim.R. 29(A) for an acquittal on that basis. The trial court denied the motion. Pope then testified in his own defense, to refute the failure to comply allegation. During cross-examination, he admitted the handgun was "operable" and that he kept it ready to fire in his pocket. After the defense rested, Pope renewed his Crim.R. 29(A) motion. The trial court again denied it and subsequently found Pope guilty of the offense.

         {¶2} Pope now appeals from his judgment of conviction, arguing in one assignment of error that the trial court erred by denying his "Crim.R. 29(C) motion for acquittal" because "the state failed to prove beyond a reasonable doubt that [he] was in possession of a an operable firearm." It is clear that Pope's reference to Crim.R. 29(C), which only applies in jury trials, instead of Crim.R. 29(A) is a typographical error, and that Pope is challenging the sufficiency of the state's evidence at the close of the state's case.

         {¶3} Although Pope contends the trial court erred by denying his Crim.R. 29(A) motion at the close of the state's case, Pope presented evidence and testified in his defense. Thus, he waived his right to challenge the sufficiency of the evidence at the close of the state's case. See State v. Guidugli, 157 Ohio App.3d 383, 2004-Ohio-2871, 811 N.E.2d 567, ¶ 14 (1st Dist.), cited in State v. Wynn, 1st Dist. Hamilton No. C-160782, 2017-Ohio-8045, ¶ 17 (Cunningham, P J., concurring separately); State v. Wernke, 1st Dist. Hamilton No. C-800348 (June 13, 1981). Accordingly, we recast Pope's assignment of error to have asserted error by the trial court in not granting his Crim.R. 29(A) motion at the end of all evidence. The standard of review for the denial of a Crim.R. 29(A) motion is the same standard for a challenge to the sufficiency of the evidence. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.

         {¶4} In a challenge to the sufficiency of the evidence, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. See State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

         Analysis

         {¶5} Pope was convicted of violating R.C. 2923.12(B)(4), which provides that "[n]o person who has been issued a concealed handgun license shall * * * if [] stopped for a law enforcement purpose and is carrying a concealed handgun, knowingly disregard or fail to comply with any lawful order of any law enforcement officer given while the person is stopped, including, but not limited to, a specific order to the person to keep the person's hands in plain sight."

         {¶6} The definitions governing offenses involving weapon-control measures are found in R.C. 2923.11.[1] As relevant here, "handgun" is defined as "[a]ny firearm that has a short stock and is designed to be held and fired by the use of single hand." R.C. 2923.11(C). "[F]irearm" is defined as "any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant," including "an unloaded firearm, and any firearm that is inoperable but that can readily be rendered operable." R.C. 2923.11(B)(1). Pope's loaded gun undisputedly had a short stock, and was designed to be held and fired with one hand. The issue on review is whether the record contains sufficient evidence that the handgun met the definition of a firearm because it was operable-capable of firing a round.

         {¶7} Operability of a firearm may be established by an operability report or testimony of a witness who had test-fired the weapon, but it also may be established by circumstantial evidence. R.C. 2923.11(B)(2); Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541, at paragraph one of the syllabus, construing and applying R.C. 2923.11(B)(1) and (2). "The trier of fact may consider all relevant facts and circumstances surrounding the crime." Thompkins at paragraph one of the syllabus. This includes the representations and actions of the individual exercising control over the firearm, including implicit or explicit threats. Id. at 383; State v. Obsaint, 1st Dist. Hamilton No. C-060629, 2007-Ohio-2661, ¶ 19.

         {¶8} Other evidence showing indicia of operability include the actual gun and bullets. See State v. Messer, 107 Ohio App.3d 51, 55, 667 N.E.2d 1022 (9th Dist. 1995); State v. Allah, 4th Dist. Gallia No. 14CA12, 2015-Ohio-5060, ¶ 11-13. At least one court has found the circumstances sufficiently demonstrated a firearm's operability where the evidence showed the handgun was kept in a purse and the owner had a concealed handgun license. State v. Staten, 10th Dist. Franklin No. 18AP-48, 2018-Ohio-4681, ¶ 13, appeal not allowed, 154 Ohio St.3d 1512, 2019- Ohio-601, 116 N.E.3d 1290. Ultimately, proof of operability ...


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