State v. Davis

{¶ 24} While I concur with the position of the majority as to the first assignment of error, I must respectfully dissent as to assignments of error two and three.

{¶ 25} R.C. 2923.12 provides as follows: "No person shall knowingly carry or have, concealed on the person's person or concealed ready at hand * * * a handgun * * *."

{¶ 26} Because the handgun in question was not on the person of the appellant, the elements of the offense can only be met if the handgun was proven to beready at hand. I would interpret the phrase "ready at hand" as meaning "concealed where it may be readily picked up and used." This would be consistent with the majority opinion stated in State v. Beasley (Jan. 27, 1982), 1st Dist. No. C-810122, and aptly confirmed in the concurring opinion of Chief Justice Celebrezze in State v. Beasley (1983),4 Ohio St.3d 24, 4 OBR 71, 446 N.E.2d 154.

In the case sub judice, it is uncontroverted that this weapon was unloaded, inside a zippered pouch, and, in fact, disassembled. As recognized by the court of appeals below, it would have taken two hands and an appreciable length of time for appellee to remove the weapon from the pouch and to assemble and load it; all while continuing to drive her car. I do not believe the General Assembly intended that individuals be guilty of violating R.C. 2923.12 under such circumstances.

The Committee Comment to R.C. 2923.12 states:

``The section prohibits having or carrying any deadly weapon or dangerous ordnance, either concealed or on one's person, or concealed where it may be readily picked up and used.' (Emphasis added.)

Thus, the General Assembly has considered ``ready at hand' with ``may be readily picked up and used.' In the instant cause, if appellee had ``picked up' her weapon, it certainly would not have been capable of being ``used' in its condition. Hence, there is insufficient evidence of record to sustain appellee's conviction.

(Emphasis sic.) Id. at 28, 4 OBR 71, 446 N.E.2d 154.

{¶ 27} The facts of this case correlate so closely to those in Beasley that I cannot distinguish the necessary result.

{¶ 28} In addition, I find it greatly disturbing that a citizen can make every effort to follow the legislature's directive as to the proper method of transportation of a firearm and yet be found guilty of committing a serious felony due to the subjective interpretation of the term "ready at hand." Davis correctly unloaded his gun and secured it in a closed box. R.C. 2923.16 is Ohio's statute that prohibits the improper transportation of firearms in motor vehicles. Subsection (C) of this statute specifically describes the manner in which a firearm must be handled while transporting it in a motor vehicle:

No person shall knowingly transport or have a firearm in a motor vehicle, unless it is unloaded and is carried in one of the following ways:

(1) In a closed package, box, or case.

R.C. 2923.16(C).

{¶ 29} By the terms of the statute, the firearm must be concealed. However, there is no requirement that the ammunition cannot be in the same closed box or case.

{¶ 30} I understand the very real dangers faced by law enforcement officers who may approach a vehicle under less than ideal circumstances. However, our citizens who are trying to correctly comply with state laws should not be punished for failing to understand subjective terms used by the legislature. As the Supreme Court noted in Beasley, "[a]s a matter of simple fair play in criminal practice, the law-abiding public is entitled to rely upon the common meaning of statutory words. Justice Oliver Wendell Holmes, speaking for the court in McBoyle v. United States (1931),283 U.S. 25, 27 [51 S.Ct. 340, 75 L.Ed.2d 816], stated: `` * * * a fair warning should be given to the world in language that the world will understand * * *.'" Beasley, 4 Ohio St.3d at 27,4 OBR 71, 446 N.E.2d 154.

{¶ 31} Based upon the foregoing, I would find that the state failed to prove a necessary element of the offense of carrying a concealed weapon, sustain assignments of error two and three, and reverse the judgment of the trial court.