IN TIIE SUPREME COURT OF OHIO. _...,.. r., _._. _^.^

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1 IN TIIE SUPREME COURT OF OHIO IN RE: J.T. NO Defendant-Appellant : On Appeal from the Hamilton County Court of Appeals, First Appellate District Court of Appeals Case Number C _...,.. r., _._. _^.^ Joseph T. Deters ( P) Prosecuting Attorney Rachel Lipman Curran ( P) Assistant Prosecuting Attorney 230 East Ninth Street, Suite 4000 Cincinnati, Ohio (513) Fax No. (513) COUNSEL FOR PLAINTIFF-APPELLEE, STATE OF OHIO GORDON C. MAGELLA Attorney at Law Office of the Hamilton County Public Defender 230 E. Ninth Street, Third Floor Cincinnati, Ohio (513) COUNSEL FOR DEFENDANT-APPELLANT, J.T. f...,,: f^,-e f; {uf;",- p u ^.: ^! ^ ^t-:^' <.i r.sy^i^ 4 s! 's N f ^^i ' ^,^` +.>Y.Sp:.^^'3 6'.;'c.S'Sr %F a, EJ `R9i ^: '"i^.;e^i ',

2 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ii EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION... 1 STATEMENT OF THE CASE AND FACTS... 1 ARGUMEN'T IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law No. 1: The plain language of R.C (A) does not require a gun that is designed as a deadly weapon, and is capable of inflicting death, to be an operable firearm in order to prove a carrying concealed weapon charge CONCLUSION... 7 PROOF OF SERVICE... 7 i

3 TABLE OF AUTHORITIES PAGE CASES: State v. Crosby, 8th Dist. No (Apri13, 1980) State v. Henry, 8th Dist. No (August 25, 1983) State v. Brooks, 8th Dist. No (October 7, 1982) State v. Macias, 2nd Dist. No. 1562, 2003-Ohio State v. Broyvn, 101 Ohio App.3d 784, 656 N.E.2d 741 (1995)... 4 State v. Luckey, 322 N.E.2d 354, 81 A.L.R.3d 995 (1974)... 4 State v. Hazley, 2nd Dist. No (Sept. 15, 1988)... 4 In re: Hamlin, 4th Dist. No (June 28, 1988)... 5 State v. Marshall, 61 Ohio App.2d 84, 399 N.E.2d 112 (1978)... 5 State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991)... 6 State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717(1983)... 6 State v. Dye, 14 Ohio App.2d 7, 235 N.E.2d 250 (1968)... 6 STATUTES: R.C ,... 3,6 R.C , ii

4 EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION Although J.T. claims that this case has far-reaching implications, the First District's decision is only a judgment entry. Moreover, J.T. fails to show that, based on the facts contained in the record, his case was incorrectly decided. But most importantly, this is not a case in which the juvenile court, nor the appellate court, wrongly interpreted the statute. J.T. here wishes this Court to add language to the definition of a deadly weapon, as defined by R.C (A). As he has no constitutional basis for such an amendment, and the intent of the legislature is clear from the plain language of the statute, J.T.'s claim must fail. This Court should affirm the First District's conclusion that, in this case, J.T. possessed a deadly weapon. To find otherwise would be contrary to the law. STATEMENT OF THE CASE AND FACTS Cincinnati Police Officer Boggio filed a complaint against J.T. for being a delinquent child because he was carrying a concealed weapon. (T.d. 1). J.T. had a loaded Hi-Point 9mm handgun in his waistband. (T.d. 1). The charge was amended to a misdemeanor before trial because the gun was inoperable. (April 8, 2013 T.p. 4; T.d. 12). After trial, the magistrate adjudicated J.T. delinquent. (T.d. 12). J.T. filed an objection to the magistrate's decision. (T.d. 13). On May 30, 2013, after hearing, the judge denied J.T.'s objection to the niagistrate's decision. (T.d. 24). J.T. appealed, claiming that his adjudication was based on insufficient evidence. The First District affirmed the juvenile court's decision, by judgment entry. 1

5 On March 17, 2013, Officer Frank Boggio was working in Cincinnati Police District Five. (April 8, 2013 T.p. 7), 1 A woman reported to police that a male juvenile in a dark blue, hooded sweatshirt was standing in front of 1856 Chase Avenue with a group of ten juveniles, and was shoaring them a handgun. (T.p. 7-8). Boggio responded to this incident. (T.p. 7). Boggio and his partner approached the group, and stopped two juveniles in dark, hooded sweatshirts. (T.p. 8). On juvenile, J.T., would not turn toward Boggio, but instead kept his back to the officer. (T.p. 8). He looked over his shoulder at Boggio to speak to him. (T.p. 8). After several commands, J.T. turned around toward Boggio. He had his arms up inside his sweatshirt. (T.p. 8). Boggio told J.T. to pull his arms out, and as he did, Boggio could see "a rather large bulge right around the waistband." (T.p. 9). Boggio patted J.T. down and felt a gun. He called "Gun" to his partner, and asked J.T., "Is this a gun?" J.T. said, "Yes." (T.p. 9). Boggio retrieved the gun from J.T.'s waistband. (T.p. 9). It was a Hi-Point caliber nine millimeter model C-9 type, semiautomatic handgun. (T.p. 10). Boggio testified that the gun could cause harm even though it is inoperable. (T.p. 12). He explained that it could be used as a bludgeon. He said "it's a rather heavy handgun, could easily be used as a heavy blunt object." (T.p. 12). Boggio further testified that he had heard of cases where a gun has been used as a bludgeon. (T.p. 13). J.T.'s counsel elicited testimony from Boggio that the gun was in J.T.'s waistband. (T.p. 14). When the State admitted the gun into evidence, it also admitted the gun's magazine and bullets that were recovered in the gun. (T.p. 15). ' A11 references to the transcript of proceedings are from the trial on April 8, 2013, unless otherwise noted. 2

6 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law No. 1: The plain language of R.C (A) does not require a gun that is designed as a deadly weapon, and is capable of inflicting death, to be an operable firearm in order to prove a carrying concealed weapon charge. In order to prove that J.T. was carrying concealed weapons, the State had to prove that he knowingly carried or had, concealed on his person or concealed read at hand, a deadly weapon. R.C A deadly weapon is any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon. R.C (A). J.T.'s counsel complains that the State failed to properly amend the carrying concealed weapons complaint before trial. But J.T.'s trial counsel did not object to the amendmente (T.p. 5). Moreover, the only way a carrying concealed weapons charge can be a misdemeanor, unless the defendant has a permit, is to carry a deadly weapon in a concealed maimer. R.C (A)(1) and (F)(1). J.T. was adequately put on notice that the gun was inoperable, and that the State was proceeding on the theory that he carried a deadly weapon in his waistband. In this case, J.T. carried an inoperable firearm in his waistband. The State presented no testimony that it could readily be rendered operable, and therefore, it is not a firearm under the statute. R.C (B)(1) and (C). But, the State argued at trial, during objections, and on appeal, that an inoperable firearm is still a deadly weapon. This Court should be guided by the decisions of the Eighth District in deciding whether an inoperable firearm is a deadly weapon. In State v. Crosby, the Eighth District said `to be a deadly weapon, a handgun must: (1) be "capable of inflicting death," and (2) be "designed or specially adapted for use as a weapon or possessed, carried, or used. as a weapon."' State v. Crosby, 8th Dist. No (April 3, 1980); see also State v. Henry, 8th Dist. No (August 3

7 25, 1983); State v. Brooks, 8th Dist. No (October 7, 1982). The Crosby Court went on to note that "[i]n resolving the issue of whether a gun is a dangerous weapon within the meaning of R.C (A), operability has been held to be an irrelevant factor." Id. That Court concluded that "whether unloaded or inoperable, a handgun is a deadly weapon because it is certainly capable of inflicting death and it is designed for use as a weapon." Id. J.T.'s counsel's reliance on State v. Macias, State v. Brown and State v. Luckey is misplaced. State v. Macias, 2"a Dist. No. 1562, 2003-Ohio-1565; State v. Brown, 101 Ohio App.3d 784, 656 N.E.2d 741 (1995); State v. Luckey, 322 N.E.2d 354, 81 A.L.R.3d 995 (1974). Fake guns, BB guns, and starting pistols are not designed for use as deadly weapons. Therefore, they must be possessed, carried, or used as weapons. Macias, Brown, and Luckey simply highlight this portion of the definition of deadly weapon. R.C (A). Actually, Luckey implies that an inoperable firearm, because it "is designed to inflict serious bodily injury such as a pistol, rifle or shot-gun, such weapon is dangerous per se." Luckey at 358. As the trial court and the First District understood, an inoperable firearm is a deadly weapon. `A gun designed for use as a weapon may be considered a "deadly weapon."' State v. Ilazley, 2"d Dist. No (Sept. 15, 1988). The gun J.T. had concealed in his waistband was identified by Officer Boggio as a Hi-Point "caliber nine millimeter model C-9 type, semiautomatic" handgun. (T.p ). J.T. told Boggio that it was a gun. (T.p. 14). J.T. himself appeared to consider the gun to be a deadly weapon - it was recovered with a magazine and bullets. (T.d. 1; T.p. 15). Inoperable firearms, because they are designed for use as a weapon, are per se deadly weapons. Additionally, J.T.'s inoperable Hi-Point was possessed and carried as a weapon. The handgun was concealed in J.T.'s waistband has no purpose other than its function as a weapon. 4

8 Compare In re: Hamlin, 4th Dist. No (June 28, 1988), p.5. The trial court clearly understood this during argument on J.T.'s objections, when it asked counsel, "Is there sort of res ipsa loquitur or, I mean, what else could it be used for'?" (May 22, 2013 T.p. 9). The court again asked counsel, "And what else could it be used for, you know?" (May 22, 2013 T.p. 10). J.T,'s counsel misinformed the trial court when it said "courts have found again these inoperable guns are not, per se, deadly weapons." (May 22, 2013 T.p. 20). Other courts have found that inoperable firearms are deadly weapons. In State v. Marshall, the Tenth District said that "[t]he test of a deadly weapon is whether it is capable of inflicting death. The actual use of the weapon doesn't require the same means for which it was designed." State v. Marshall, 61 Ohio App.2d 84, 86, 399 N.E.2d 112 (1978). The Marshall Court went on to say that "a gun may inflict death in two ways: (1) in the manner for which it was designed by firing a bullet, or (2) by being used as a bludgeon." Id. That Court decided that "an inspection of the gun in this case shows that it was capable of inflicting death if used as a bludgeon." Id. J."T.'s argument that the Court should read R.C (A) to carry an additional requirement that a deadly weapon be capable of inflicting death as it was designed is unsupported by the law. And his claim that Civil War relics, cannonballs, and arrowheads, are open to prosecution for being carried in a concealed manner, is baseless. 'I'ypically, these things are no longer capable of inflicting death. They therefore are not deadly weapons under R.C (A). J.T.'s claim that his gun was not designed to be a bludgeon is not supported by the record. He has provided no evidence that firearms manufacturers do not consider the weight and possibility of using a gun as a bludgeon when designing their weapons. A trier of fact could 5

9 reasonably infer that, because J.T.'s Hi-Point was so heavy, it was designed for use as a bludgeon. See State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492, 503 (1991); Stczte v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720 (1983). Here, the inoperable firearm possessed by J.T. was still capable of inflicting death because it could have been used as a bludgeon. Boggio testified that the gun could cause harm, even though it was inoperable. (April 8, 2013 T.p. 12). He explained that "[i)t's a rather heavy handgun, could easily be used as a heavy blunt object." (April 8, 2013 T.p. 12). Boggio added that he knew of cases where a gun had been used as a bludgeon. (April 8, 2013 T.p. 13). As such, the gun recovered from J.T.'s waistband was capable of inflicting death, and it was designed for use as a weapon. The State presented sufficient evidence to prove that J.T.'s Hi- Point was a deadly weapon. See State v. Dye, 14 Ohio App.2d 7, 8, 235 N.E.2d 250 (1968). The plain language of R. C (A) does not require the State to prove that a deadly weapon will cause harm in the manner in which it was designed. But if loss of designed function makes a weapon no longer deadly, this Court should require the defendant to prove that the loss of such function is permanent. In this case, J.T. presented. no evidence at trial that the gun he possessed would never be made operable in the future. The State does not lcnow when the Hi- Point became inoperable or if it could be made operable in the future. And it is clear from the record that J.T. believed the gun was operable, as it was loaded, and he concealed it from police. In this case, the State proved that J.T. knowingly carried, concealed on his person, a deadly weapon. R.C The Hi-Point caliber nine millimeter model C-9 type, semiautomatic handgun was designed for use as a weapon, it was capable of inflicting death as a bludgeon because it was so heavy, and J.T. carried it as a weapon when he hid it in his waistband and was evasive when confronted by the police. The First District's decision should be affirmed. 6

10 CONCLUSION J.T.'s Hi-Point caliber nine millimeter model C-9 type, semiautomatic handgun is a deadly weapon, even if it is inoperable. The State did not allege that J.T. had a firearm. Thus, the fact that J.T.'s gun was not capable of firing a bullet is irrelevant to this case. Whether the Court finds that inoperable firearms are per se deadly weapons, or that such inoperable firearms are deadly weapons when they could be used as bludgeons, J.T.'s adjudication for carrying concealed weapons should be affirmed. Respectfully, Joseph T. Deters, P Prosecuting Attorney PROOF OF SERVICE %/ - Rachel Lipma 'Curran, P Assistant Pros cuting Attorney 230 East Ninth Street, Suite 4000 Cincinnati, Ohio Phone: Attorneys for Plaintiff-Appellee, State of Ohio I hereby certify that I have sent a copy of the foregoing Memorandum in Response, by United States mail, addressed to Gordon C. Magella, Office of the Hamilton County Public Defender, 230 E. Ninth Street, Third Floor, Cincinnati, Ohio 45202, counsel of record, this 3ra day of September, Rachel Lipman rran, P Assistant Prosec ting Attorney 7