State v. Pope
2019 Ohio 3599
Ohio Ct. App.2019Background
- During a traffic stop Officer Chad McGuffey smelled marijuana; Pope told the officer he had a gun and that he held a concealed-carry license.
- Officer McGuffey removed a Springfield XD .45 from Pope’s right pocket; the officer testified there was a round in the chamber and a fully loaded 14-round magazine; a photograph of the gun and bullets was admitted.
- The state did not present an operability test or expert/ballistics test-fire for the weapon during its case-in-chief.
- Pope moved for acquittal under Crim.R. 29(A) at the close of the state’s case; the motion was denied; Pope then testified in his own defense and, on cross-examination, admitted the gun was operable and carried with a round in the chamber.
- After the defense rested, Pope renewed his Crim.R. 29(A) motion, which the trial court denied; the court found Pope guilty of violating R.C. 2923.12(B)(4) (failing to comply with a lawful order while carrying a concealed handgun).
- The First District affirmed, holding the record contained sufficient circumstantial and direct evidence of operability, including Pope’s own admission.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the state proved beyond a reasonable doubt that the handgun was a "firearm" (operable) for purposes of R.C. 2923.12(B)(4). | Officer testimony and photo showing a handgun, a round in the chamber, and a loaded magazine provided sufficient circumstantial evidence of operability. | State failed to prove operability because no operability test or test-fire was produced at the close of the state’s case; Crim.R.29(A) motion should have been granted. | Viewing all evidence (including Pope’s testimony admitting operability), a rational trier of fact could find operability beyond a reasonable doubt; conviction affirmed. |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380 (operability may be established circumstantially; consider all surrounding facts)
- State v. Murphy, 49 Ohio St.3d 206 (proof of operability need not be dependent on empirical testing)
- State v. Messer, 107 Ohio App.3d 51 (possession of gun and bullets can indicate operability)
- State v. Tenace, 109 Ohio St.3d 255 (standard of review for denial of Crim.R.29 equals sufficiency review)
- State v. Jenks, 61 Ohio St.3d 259 (Jackson standard for sufficiency review adopted in Ohio)
- Jackson v. Virginia, 443 U.S. 307 (sufficiency standard: could any rational trier of fact find guilt beyond a reasonable doubt)
- State v. Guidugli, 157 Ohio App.3d 383 (defendant who presents evidence after a Crim.R.29(A) motion generally waives right to challenge sufficiency at close of state’s case)