Court of Appeals of Ohio, First District, Hamilton
From: Hamilton County Municipal Court TRIAL NO.
Appealed From Is: Affirmed
T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for
Robinson & Jones Co., L.P.A, and Matthew E. Wiseman, for
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.
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
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.
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).
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
The definitions governing offenses involving weapon-control
measures are found in R.C. 2923.11. 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.
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.
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 ...