State v. Powell

571 N.E.2d 125, 59 Ohio St. 3d 62, 1991 Ohio LEXIS 947

• Court: Ohio Supreme Court
• Decided: April 24, 1991
• Docket: Nos. 90-691 and 90-692
• Status: Published

Opinions

H. Brown, J.

The primary issue presented is whether a defendant may be given an additional three-year term of actual incarceration pursuant to R.C. 2929.71, the so-called gun specification statute, for possession of a firearm during the commission of a felony where the firearm is acquired by theft during the course of the felony. For the reasons which follow, we con-dude that the additional term may be imposed and reverse the judgments of the court of appeals.

I

Duration of an Aggravated Burglary

The majority in the court below concluded that the additional term of actual incarceration could not be applied to these defendants because they did not possess the firearm when they first entered the Slough residence. The court resolved the issue on the theory that a burglary is complete once a defendant gains entry into the dwelling.

We disagree. An “aggravated burglary” is defined in R.C. 2911.11, which states in pertinent part:

“(A) No person, by force, stealth, or deception, shall trespass in an occupied structure * * * with purpose to commit therein any theft offense * * * or any felony, when any of the following apply:

"* * *

“(3) The occupied structure involved is the permanent or temporary habitation of any person * * *.” (Emphasis added.)

A “criminal trespass” is defined by R.C. 2911.21, which states in pertinent part:

“(A) No person, without privilege to do so, shall * * *:

“(1) Knowingly enter or remain on the land or premises of another; * * *” (Emphasis added.)

The express language of the applicable statutes is dispositive. The crime of aggravated burglary continues so long as the defendant remains in the structure being burglarized because the trespass of the defendant has not been completed. Thus, when appellees acquired the firearms by theft, they were still engaged in the commission of the aggravated burglary.

II

Scope of the R.C. 2929.71 Gun Specification

Appellee Powell further argues that the imposition of an additional three-year term of incarceration is improper because the firearm was not “used actively in the commission of the felony.” We disagree.

R.C. 2929.71(A)(2) provides that the three-year term shall be imposed where “[t]he offender is also convicted of, or pleads guilty to, a specification charging him with having a firearm on or about his person or under his control while committing the felony.” (Emphasis added.) The statute does not require that the firearm be used in the commission of the felony, or that the defendant acquire the firearm before beginning the crime; all that is necessary is that the defendant have the firearm on his person or under his control at some point during the commission of the crime.

By enacting R.C. 2929.71, the General Assembly sought to deter and punish both the use and possession of firearms by people who commit crimes. The public policy behind this enactment is apparent: a criminal with a gun is both more dangerous and harder to apprehend than one without a gun. Further, it is obvious that a gun stolen during a burglary can be as dangerous as one which the burglar has at the start of the crime. Accordingly, we hold that a three-year additional term of actual incarceration may be imposed pursuant to R.C. 2929.71 if the defendant has a firearm in his or her possession at any time during the commission of a felony, even if, as in the instant case, the firearm is acquired by theft during the course of the felony.

III

Additional Issues Raised by Powell

Appellee Powell, though he did not cross-appeal, raises two additional issues. In his second proposition of law, he challenges the imposition of an additional three-year term on the ground that he did not actually possess either firearm; and that the firearm was presumably in the possession of an accomplice. We reject this proposition on authority of the syllabus of State v. Chapman (1986), 21 Ohio St. 3d 41, 21 OBR 327, 487 N.E. 2d 566. The appellee may be charged under R.C. 2929.71 on the basis of the possession of a firearm by any accomplice involved in the burglary.

In his third proposition of law, Powell contends that the state did not prove that the firearm was operable. By his plea of no contest, Powell admitted the truth of the facts alleged in the indictment, see Crim. R. 11(B)(2), one of which was that the firearm involved was a “firearm” as defined in R.C. 2923.11(B), i.e., it was operable.

IV

Conclusion

For the reasons given, we reverse the judgments of the court of appeals and reinstate the additional three-year term of actual incarceration imposed by the trial court in each case pursuant to R.C. 2929.71.

Judgments reversed.

Moyer, C.J., Douglas, Wright and Re snick, JJ., concur. Sweeney and Holmes, JJ., dissent.