State v. New

968 N.E.2d 607, 197 Ohio App. 3d 718
CourtOhio Court of Appeals
DecidedFebruary 9, 2012
DocketNo. 11AP-523
StatusPublished
Cited by3 cases

This text of 968 N.E.2d 607 (State v. New) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. New, 968 N.E.2d 607, 197 Ohio App. 3d 718 (Ohio Ct. App. 2012).

Opinion

Sadler, Judge.

{¶ 1} Appellant, Michael L. New, appeals from a judgment of the Franklin County Court of Common Pleas finding him guilty of improperly handling firearms in a motor vehicle, following a bench trial. For the following reasons, we affirm.

{¶ 2} In September 2010, a Franklin County grand jury indicted appellant on one count of improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(B), a fourth-degree felony. Appellant waived his right to a jury trial, and the matter proceeded to a bench trial on March 24, 2011. At trial, the parties waived opening statements and stipulated the facts of the case. The following stipulations were read into the record:

The parties would stipulate that if Officers Scholl, Carr, and Kegley of the Columbus Division of Police were called to testify, they would testify to the following: That on September 2, 2010, in the city of Columbus, county of Franklin, state of Ohio, at approximately 2:04 a.m. they were dispatched to 668 Wedgewood Drive, Apartment 7.
Officers Scholl and Carr initiated a traffic stop of a Chevrolet Blazer driven by Michael Miller in front of 692 Wedgewood Drive. The defendant, Michael New, was the front seat passenger of the Chevrolet Blazer. The vehicle was stopped because of a possible warrant for Mr. New. Upon approach to the vehicle, Officers Kegley and Walters joined the traffic stop. When Officers Scholl and Kegley opened the passenger side door, a loaded magazine was observed on the floor shoved halfway under the front seat between Mr. New’s feet.
After detaining Mr. New and Mr. Miller, a black .22 caliber semiautomatic with no ammunition inside the firearm was found in the rear of the Blazer in an unzipped black foam gun case. The weapon was in plain view, as the case was not closed, and the ammunition for the weapon was in a loaded magazine with 14 live .22LR rounds * * * found halfway beneath the seat between Mr. New’s feet. The weapon was a Smith and Wesson model M & P1522, serial number DTZ5277.
Furthermore, Michael Miller would testify that he picked Mr. New up in his Blazer and Mr. New put the rifle in the back and separated the ammo to the front seat because they thought that was legal.
Officer Walters would testify that he transported the firearm, its case, and magazine to the property room under Property Room- Number 10-16914.
If Kelby Ducat of the Columbus Division of Police Crime Lab were called to testify, he would testify that the Smith and Wesson model M & P15-22, 22LR semiautomatic rifle with a 25-round magazine with Serial Number DTZ5227 [722]*722and Property Number 10-16914, was examined and determined to be an operable firearm. This weapon has an operable thumb safety. And furthermore, that the weapon was test fired using CC1 22LR ammunition, and the bullets were collected in a water recovery system.

{¶3} Following the stipulations, appellant moved for an acquittal under Crim.R. 29, arguing that the facts did not constitute a violation of R.C. 2923.16(B). Specifically, appellant asserted that the firearm was not “loaded” under R.C. 2923.16(B), because the magazine was not inserted into the firearm. Although the firearm did not meet the statutory definition of “unloaded” in R.C. 2923.16(E)(5), appellant maintained that the statutory definition applied only to R.C. 2923.16(C). In response, the state argued that if a firearm does not meet the definition of “unloaded” in R.C. 2923.16(E)(5), then it is necessarily “loaded” under R.C. 2923.16(B).

{¶ 4} After hearing the arguments of counsel, the trial court overruled appellant’s Crim.R. 29 motion and found appellant guilty of violating R.C. 2923.16(B). At sentencing, the trial court imposed a 180-day jail sanction of community control "with 52 days of jail-time credit.

{¶ 5} Appellant now appeals, advancing three assignments of error for our consideration:

FIRST ASSIGNMENT OF ERROR
Appellant’s conviction was not supported by the sufficiency of the evidence and in violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and Article I, Sections 1 & 16 of the Ohio Constitution and the conviction was also against the manifest weight of the evidence.
SECOND ASSIGNMENT OF ERROR
The statute, without a definition for the term loaded firearm, as applied to appellant and on its face is void for vagueness and violates appellant’s Second, Fifth, Sixth, and Fourteenth Amendments rights under the U.S. Constitution and Article I, Sections 1, 4 and 16 under the Ohio Constitution.
THIRD ASSIGNMENT OF ERROR
The trial court erred for failure to apply the standard set out by Revised Code sections 1.42 and 2901.04(a) in criminal statutes of strictly construing against the state and liberally construing for the ^defendant the undefined term of loaded firearm, in that common English language rules for grammar and usage control.

{¶ 6} Appellant’s first assignment of error, which challenges the weight and sufficiency of the evidence, relies on the same statutory challenge as his third assignment of error, which argues that the trial court failed to construe the [723]*723statute against the state. For ease of discussion, we will address both assignments of error together.

{¶ 7} In determining whether a verdict is against the manifest weight of the evidence, an appellate court sits as the “13th juror” and must weigh the evidence to determine whether the trier of fact “ ‘clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’ ” State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. The appellate court must bear in mind the trier of fact’s superior, first-hand perspective in judging the demeanor and credibility of witnesses. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. The power to reverse on manifest-weight grounds should be used only in exceptional circumstances, when “the evidence weighs heavily against the conviction.” Thompkins at 387.

{¶ 8} An appellate court does not act as a 13th juror in determining the sufficiency of the evidence. The issue of sufficiency presents a purely legal question for the court regarding the adequacy of the evidence. Id. at 386. The relevant inquiry is whether, “after viewing the evidence in a 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.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.

{¶ 9} Appellant was convicted under R.C. 2923.16(B), which prohibits a person from knowingly transporting or having a loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the operator or any passenger without leaving the vehicle.

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Cite This Page — Counsel Stack

Bluebook (online)
968 N.E.2d 607, 197 Ohio App. 3d 718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-new-ohioctapp-2012.