State v. McConnell , 2019 Ohio 3736 ( 2019 )

[Cite as State v. McConnell, 2019-Ohio-3736.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180551
TRIAL NO. B-1301687
Plaintiff-Appellant, :
O P I N I O N.
vs. :
BRIAN MCCONNELL, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 18, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Hal Arenstein, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
C ROUSE , Judge.
{¶1} The state of Ohio appeals from the trial court’s judgment granting
defendant-appellee Brian McConnell’s application to seal his record of conviction.
For the reasons set forth below, we affirm the trial court’s judgment.
{¶2} In 2013, McConnell pled no contest to the illegal conveyance of a
deadly weapon or dangerous ordnance in a school safety zone in violation of R.C.
2923.122(B). In 2018, McConnell applied to seal the record of his conviction
pursuant to R.C. 2953.31 through 2953.36. The trial court granted McConnell’s
application for expungement and the state timely filed this appeal.
{¶3} In its sole assignment of error, the state argues that the trial court was
not authorized to grant the application for expungement because McConnell was not
an eligible offender. Whether an offender is eligible to have a record of conviction
sealed is an issue of law we review de novo. State v. J.M., 148 Ohio St. 3d 113, 2016-
Ohio-2803, 69 N.E.3d 642, ¶ 9.
{¶4} R.C. 2953.32 permits “an eligible offender” to apply to the sentencing
court for the sealing of a conviction record. Under R.C. 2953.36(A)(6),
“[c]onvictions of an offense in circumstances in which the victim of the offense was
less than sixteen years of age when the offense is a misdemeanor of the first degree
or a felony” are ineligible for sealing. Here, the state contends that the school
children are the victims of the illegal conveyance of a deadly weapon or dangerous
ordnance in a school safety zone under R.C. 2923.122(B). In support of its argument,
the state relies on State v. Ritchie, 174 Ohio App. 3d 582, 2007-Ohio-6577, 883
N.E.2d 1092 (5th Dist.).
{¶5} In Ritchie, a school bus driver was convicted of one count of illegal
conveyance or possession of a deadly weapon on school premises. Id. at ¶ 3. At the time
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OHIO FIRST DISTRICT COURT OF APPEALS
of the offense, the defendant was driving a bus full of school children. Id. at ¶ 4. Nine
years after the defendant was discharged from probation, he applied to seal his record of
conviction. Id. at ¶ 4. The trial court found the defendant ineligible for the sealing of his
record pursuant to R.C. 2953.36. Id. The Fifth District Court of Appeals affirmed,
holding that the children on the bus were victims within the meaning of R.C. 2953.36
because they were under the control of the defendant and were jeopardized by his
conduct. Id. at ¶ 23.
{¶6} We find Ritchie inapplicable under the facts of this case. R.C.
2923.122(B) creates an inherently victimless offense—the statute penalizes the mere
possession of a deadly weapon or dangerous ordnance, regardless of the presence of
another person. See United States v. Powell, 6 F.3d 611, 613 (9th Cir.1993) (“being a
felon in possession of a firearm is a ‘victimless crime’ ”); see also United States v.
Decoteau, 932 F.2d 1205, 1207 (7th Cir.1991) (felon in possession of a firearm is a
victimless crime). Specifically, R.C. 2923.122(B) provides: “No person shall
knowingly possess a deadly weapon or dangerous ordnance in a school safety zone.”
Although the legislature undoubtedly enacted R.C. 2923.122(B) to protect school
children against the dangers of weapons, additional circumstances are required to
qualify school children as “victims” under R.C. 2923.122(B).
{¶7} Here, McConnell pled no contest to knowingly possessing a firearm in
a school zone. Unlike Ritchie, however, there is no evidence in the record that
McConnell committed the offense during school hours or that children were in the
school during the commission of the offense. There is also no evidence that children
were “jeopardized by [McConnell’s] conduct.” See Ritchie at ¶ 23. In fact, the trial
court found that “children were not exposed to any specific risk from the firearm.”
Instead, McConnell’s possession of the firearm posed only a general, hypothetical
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OHIO FIRST DISTRICT COURT OF APPEALS
harm to the school children. Under these circumstances, we conclude that the trial
court did not err in finding McConnell eligible for the sealing of his record.
{¶8} The state’s sole assignment of error is overruled and the judgment of
the trial court is affirmed.
Judgment affirmed.
M OCK , P.J., and Z AYAS , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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