State v. Johnson , 2016 Ohio 872 ( 2016 )

[Cite as State v. Johnson, 2016-Ohio-872.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 14CA010688
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ROBERT N. JOHNSON COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 14CR089799
DECISION AND JOURNAL ENTRY
Dated: March 7, 2016
MOORE, Judge.
{¶1} Defendant-Appellant Robert N. Johnson appeals from the judgment of the Lorain
County Court of Common Pleas. We reverse and remand the matter for proceedings consistent
with this opinion.
I.
{¶2} In August 2014, an indictment was filed against Mr. Johnson alleging that, on
May 30, 2014, he committed theft in violation of R.C. 2913.02(A)(1). The indictment further
alleged that the property stolen was a firearm or dangerous ordnance, elevating the crime to a
felony of the third degree. Accompanying the charge was a firearm specification.
{¶3} Mr. Johnson waived his right to a jury trial and the matter proceeded to a bench
trial. The trial court found Mr. Johnson guilty of the charge and specification and sentenced him
to an aggregate term of two years in prison. Mr. Johnson has appealed, raising three assignments
of error for our review.
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II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT DENIED [MR. JOHNSON’S]
CRIM.R. 29 MOTION FOR ACQUITTAL BECAUSE THE STATE
PRESENTED NO EVIDENCE THAT THE FIREARMS WERE OPERABLE.
{¶4} Mr. Johnson states in his first assignment of error that the trial court erred in
denying his Crim.R. 29 motion because there was no evidence that the firearms were operable.
However, as the substance of his argument is a claim that there was insufficient evidence to
sustain the findings of guilty, we will address it as such.
{¶5} The issue of whether a conviction is supported by sufficient evidence is a question
of law, which we review de novo. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997).
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. 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, 61 Ohio St. 3d 259 (1991), paragraph two of the syllabus.
{¶6} Mr. Johnson’s sole argument within this assignment of error is that there was
insufficient evidence presented that the guns were operable. Mr. Johnson was found guilty of
committing theft of a firearm in violation of R.C. 2913.02(A)(1), (B)(4). R.C. 2913.02(A)(1)
states that, “[n]o person, with purpose to deprive the owner of property or services, shall
knowingly obtain or exert control over either the property or services * * * [w]ithout the consent
of the owner or person authorized to give consent[.]” R.C. 2913.02(B)(4) elevates the degree of
the offense to a third-degree felony if the property stolen is a firearm or dangerous ordnance.
R.C. 2913.01(EE) provides that the word “firearm” used in Chapter 2913 has the same meaning
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as in R.C. 2923.11. Additionally, Mr. Johnson was found guilty of a firearm specification. See
R.C. 2941.141. R.C. 2941.141(D) provides that “firearm[,]” as used in R.C. 2941.141, has the
same meaning as in R.C. 2923.11.
{¶7} Thus, for purposes of both the charge and the specification, a firearm means,
any deadly weapon capable of expelling or propelling one or more projectiles by
the action of an explosive or combustible propellant. “Firearm” includes an
unloaded firearm, and any firearm that is inoperable but that can readily be
rendered operable.
(2) When determining whether a firearm is capable of expelling or propelling one
or more projectiles by the action of an explosive or combustible propellant, the
trier of fact may rely upon circumstantial evidence, including, but not limited to,
the representations and actions of the individual exercising control over the
firearm.
R.C. 2923.11(B); see also State v. Hughes, 9th Dist. Summit No. 27061, 2014-Ohio-4039, ¶ 21.
{¶8} In determining whether a firearm is operable, the trier of fact examines the totality
of the circumstances. See Hughes at ¶ 21; see also Thompkins,78 Ohio St.3d at 385 (“In
determining * * * whether the firearm was operable or capable of being readily rendered
operable at the time of the offense, the trier of fact may consider all relevant facts and
circumstances surrounding the crime * * *.”). Thus, in order to demonstrate that Mr. Johnson
committed theft of a firearm and was guilty of the firearm specification, the State was required to
demonstrate that the property at issue was a firearm as that term is defined in R.C.
2923.11(B)(1).
{¶9} Michael Wilburn testified that in May 2014, he was living in a house in Columbia
Station with his wife, his son’s girlfriend, Ashley Smith, and Mr. Johnson. In late May or early
June 2014, Mr. Wilburn found a receipt in his car for the sale of some of his firearms. From the
receipt it appeared that Ms. Smith sold the weapons to a Scott Bayer.
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{¶10} Thereafter, Mr. Wilburn went into his bedroom where he kept the weapons and
found that they were not there. Additionally, he noticed that a can of ammunition was missing
and “probably cleaning supplies.” He stated that no one was supposed to be in his room, but that
it was accessible to Mr. Johnson because “the door had been kicked in; not by them, but by
someone else.” Mr. Wilburn probably saw the weapons last in early May 2014, but distinctly
remembers that he saw them in “the storage area[]” just after Christmas 2013. He testified that
he did not check his firearms very frequently but he liked “to look at them sometimes.” Mr.
Wilburn testified that he did not give Mr. Johnson permission to take the guns, sell them, or to
keep the proceeds.
{¶11} Subsequently, Mr. Wilburn reported the theft to police, and Deputy Zara Hudson
from the Sheriff’s Department investigated and spoke to Mr. Bayer. Mr. Bayer testified that he
owned a jewelry and coin exchange in Middleburg Heights. He indicated that Mr. Johnson had
come into his shop on numerous occasions. According to Mr. Bayer, Mr. Johnson came into the
shop on May 30, 2014, with some guns and ammunition he wanted to sell. He told Mr. Bayer
that he had purchased a house from an elderly couple and they left the guns and ammunition in
the basement. The couple allegedly told Mr. Johnson that he could do what he wanted with the
items because the movers would not ship the weapons. During the attempted transaction with
Mr. Bayer, Mr. Johnson revealed that he had a prior felony conviction. Thus, Mr. Bayer was not
sure if he could legally buy the items from Mr. Johnson. Mr. Johnson then asked if Mr. Bayer
could buy them from Mr. Johnson’s wife. Mr. Bayer indicated that would be alright, and so Mr.
Johnson left, and then returned with Ms. Smith. When they returned, Mr. Bayer testified that,
Mr. Johnson conducted the negotiations, however, Mr. Bayer bought the items from Ms. Smith.
A surveillance video of the transaction was admitted into evidence; however, the video contains
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no audio. Mr. Bayer averred that the receipt did not list everything sold because he did not think
it was necessary to put anything besides the guns on the receipt. Mr. Bayer also bought
ammunition and a bayonet as part of the transaction. Mr. Bayer bought all of the items for $900.
He testified that he did not plan to resell the items in his store; instead, it was his intention to
keep the items for himself because he was a “gun collector.” He described some of the guns as
looking like older antique dueling pistols.
{¶12} Deputy Hudson recovered the following items from Mr. Bayer, which were
ultimately returned to Mr. Wilburn: “One shotgun made by Ithaca Police model valued at $500;
one Windham AR-15 valued at $1800; * * * two Navy Hawes du[e]ling revolvers, both valued at
$200; one CZ model 70 semi-automatic pistol valued at $400; one * * * IAC Billerica shotgun,
model 1897 valued at $500,” and over a thousand rounds of unspecified ammunition valued at
$1000. Deputy Hudson also spoke to Mr. Johnson who was in jail at the time. According to
Deputy Hudson, Mr. Johnson admitted that he and Ms. Smith were staying at the Wilburn
residence and that they took some of the guns to sell in order to have money to buy drugs.
{¶13} Even viewing the evidence in a light most favorable to the prosecution, we cannot
say that the State presented sufficient evidence that the guns in this case were firearms as
contemplated by R.C. 2923.11(B)(1); the State failed to present sufficient evidence that the
weapons were operable or capable of readily being rendered operable. Neither the guns nor the
ammunition was admitted into evidence. See State v. Messer, 107 Ohio App. 3d 51, 55 (9th
Dist.1995) (stating that admitting the gun into evidence would be sufficient to establish
operability). There was no testimony as to whether the guns were loaded or unloaded or whether
any of the ammunition recovered was of a caliber such that it could be used in any of the guns.
See id. (noting that the fact that the gun was found loaded hidden under a mattress suggested
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operability); State v. Allah, 4th Dist. Gallia No. 14CA12, 2015-Ohio-5060, ¶ 13 (“The jury had
the actual weapons and could logically infer from the loading of one gun and the provision of
ammunition for the other that both were capable of firing that ammunition.”); State v. Dickerson,
11th Dist. Ashtabula No. 2013-A-0046, 2015-Ohio-938, ¶ 36 (“Because the firearm was loaded
when Officer Mino found it, and the firearm was submitted into evidence, a reasonable jury
could conclude the firearm was operable.”). Additionally, Mr. Wilburn never testified what he
used the guns for or whether they had ever been fired. See State v. Boyd, 6th Dist. Lucas No. L-
97-1366, 1998 WL 833534, *3 (Dec. 4, 1998) (“Without more, we find that an owner’s
statement that he kept the stolen guns for hunting is insufficient to prove operability beyond a
reasonable doubt.”). Further, while the names of the weapons were mentioned at trial, merely
naming the weapons has been held to be insufficient to demonstrate operability. See State v.
Henry, 4th Dist. Gallia No. 10CA20, 2012-Ohio-371, ¶ 18 (“[W]e reject the state’s argument that
the jury could have reasonably inferred operability merely from the term ‘muzzle loader with
scope.’”).
{¶14} The State asserts that the facts of this case are similar to those in State v. Comsa,
4th Dist. Washington No. 06CA21, 2007-Ohio-5561, in which the Fourth District concluded that
there was sufficient evidence of operability presented. The evidence the Comsa court relied on
was summarized as follows:
While [the owner] never directly testified that she fired either weapon, she did
testify as to the type of ammunition that she could use in her Thompson
Contender. She indicated the barrel on her gun could be loaded with either a .45
caliber pistol ammunition or a .410 shotgun shell. She described the former as
carrying “a solid lead bullet in it,” and the latter as one that “has your BB’s in it
...” She also testified about the use of the scope on the Ruger Super Redhawk,
which she indicated was used for target practice or hunting. Both of these
activities involve shooting the gun, not merely possessing it as a collector’s item
or some other nonfunctional purpose. She identified State’s Exhibit B-6 as
containing two photos of a Ruger Super Redhawk pistol like hers. The top photo
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showed the pistol without a scope, while the bottom one was the pistol with
scope. She indicated her pistol was equipped with a scope which she previously
indicated was used “to sight in better” on intended targets. It is also significant
that [the owner] took steps to conceal the weapons in her home. [The owner] had
an extensive firearms collection and had formerly been a federally licensed
firearms dealer. Thus, a reasonable jury could conclude [the owner] would neither
collect nor conceal inoperable firearms.
Id. at ¶ 19.
{¶15} Further, while the Comsa court did not point to it in its analysis, in its opinion, the
court did note that, in discussing operability, the State additionally relied on evidence that the
defendant threatened to shoot the owner’s dog after stealing the weapons and on testimony that
the defendant intended to get back into “gunrunning[.]” Id. at ¶ 18.
{¶16} Even assuming we agreed with the reasoning of the Comsa court, we conclude the
facts of the instant matter are distinguishable. Here, there was no testimony about what type of
ammunition could be used in the guns, nor was there testimony about Mr. Wilburn’s purpose for
keeping the guns. While the State asserts that the guns were kept in a storage area in Mr.
Wilburn’s bedroom, and that such evidences operability, we are not persuaded. We note that the
transcript is not clear that, when the guns were stolen in May 2014, they were being kept in a
storage area. Mr. Wilburn indicated that he saw the weapons shortly after Christmas 2013, in the
storage area, but did not indicate whether that storage area was in his bedroom or somewhere
else. When Mr. Wilburn was asked about where he went to look for the guns when he saw the
sales receipt, he stated he went to his bedroom. He did not further elaborate on whether they
were in a storage area or how they were secured. He also indicated that the area was accessible
by Mr. Johnson and the door had been kicked in by someone else. Thus, there was not any
evidence that the guns were kept in a secure area.
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{¶17} Moreover, we are not convinced by the State’s argument that the sale of the guns
to Mr. Bayer, a self-described gun collector, for his own use, provides sufficient evidence of
operability. It would seem that someone who collects guns might be just as likely to seek out
inoperable guns if there was something special or significant about them, such as being
collector’s items. We note that during his testimony Mr. Bayer described the dueling pistols as
being older and antique-looking.
{¶18} Accordingly, we conclude that the State presented insufficient evidence that the
guns were operable. Thus, it failed to demonstrate that the guns were firearms as that term has
been defined in R.C. 2923.11(B). Therefore, the trial court erred in finding Mr. Johnson guilty
of third-degree felony theft of a firearm and of the firearm specification. Mr. Johnson’s first
assignment of error is sustained and the matter is remanded for resentencing in accordance with
this opinion.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT FOUND [MR. JOHNSON] GUILTY
OF THE OFFENSE AND SPECIFICATION AS CHARGED IN THE
INDICTMENT BECAUSE THERE WAS NO EVIDENCE THAT THE
FIREARMS WERE OPERABLE.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN SENTENCING [MR. JOHNSON] TO THE
SPECIFICATION BECAUSE IT IS UNCONSTITUTIONAL.
{¶19} Mr. Johnson argues in his second assignment of error that the findings of guilt are
against the manifest weight of the evidence. He asserts in his third assignment of error that the
firearm specification is unconstitutional. Given our resolution of Mr. Johnson’s first assignment
of error, his remaining assignments of error are moot and we decline to address them. See
App.R. 12(A)(1)(c).
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III.
{¶20} The judgment of the Lorain County Court of Common Pleas is reversed. This
matter is remanded for resentencing consistent with this opinion.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
CARLA MOORE
FOR THE COURT
WHITMORE, P. J.
SCHAFER, J.
CONCUR.
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APPEARANCES:
STEPHEN P. HANUDEL, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.