Lead Opinion
{¶ 2} On May 6, 2005, Sheri Gorre ("Gorre") reported to the Marion Police Department that she had been assaulted two days earlier by her former boyfriend, Port. On May 9, 2005, Gorre went to the Marion General Hospital Emergency Room as she was advised to do since she claimed that Port had headbutted her. The doctor concluded that Gorre received a broken brow bone and a broken nose which would have required a heavy blow to her face.
{¶ 3} Over the next ten days, the Marion Police Department made multiple attempts to locate Port to interview him regarding the alleged assault. On May 16, 2005, Gorre called the Marion Police Department to report that she was having further problems with Port. Marion Police Officer Rob Musser went to Gorre's house, spoke with her, and obtained a description of Port's vehicle. As a result, Officer Musser stopped Port's vehicle at 10:26 p.m. approximately two blocks from Gorre's house.
{¶ 4} When Officer Musser stopped Port's vehicle he approached the driver's side and immediately noticed that there was a strong odor of burnt marijuana coming from the car. Therefore, he called for an additional officer. Within a few minutes, Major Randy Caryer arrived and approached the passenger's side of the vehicle. Port was in the driver's seat and his current girlfriend, Starla Mullins was in the front passenger seat.
{¶ 5} Officer Musser and Major Caryer both shined their flashlights into the vehicle while speaking with Port. In addition, the lights from one of the police cruisers helped partially illuminate the inside of Port's vehicle. Both officers were making special efforts to make sure that Port did not have any weapons and to follow safety precautions during the stop.
{¶ 6} Ultimately, Officer Musser asked Port to get out of the vehicle. As Port complied with the request, Major Caryer reported to Officer Musser that there was a knife on the driver's seat that Port had been sitting on during the stop. The knife was a Winchester seven and one half inch lock blade pocket knife that was in the open position. Officer Musser escorted Port to the back of the vehicle and patted him down for additional weapons. No other weapons were found. Major Caryer seized the knife from Port's vehicle. Port was then asked about the knife. He admitted that the knife was his and claimed that he had the knife on the car seat for protection against David Daniels.
{¶ 7} On May 19, 2005, Port was indicted with one count of Felonious Assault in violation of R.C.
{¶ 8} On August 29, 2005, a jury trial was commenced. During the trial, the State presented the testimony of ten witnesses, including Gorre, who recanted some of her allegations regarding the assault charge by stating that the broken bones in her face were the result of her headbutting Port. Port did not present any evidence at trial. On August 30, 2005, the jury returned a verdict of not guilty for Felonious Assault and guilty for Carrying a Concealed Weapon.
{¶ 9} On October 5, 2005, the Judgment of conviction and sentence was filed sentencing Port to seventeen months in prison and a term of three years of post release control by the parole board.
{¶ 10} On November 2, 2005, Port filed a notice of appeal raising the following assignments of error:
{¶ 11} Ports's first and second assignments of error focus on the sufficiency and manifest weight of the evidence in this case. These two assignments of error shall be considered together because both require a close examination of the evidence. Port specifically alleges that the State failed to prove beyond a reasonable doubt that the knife found on the seat of Port's vehicle was concealed or was a deadly weapon.
{¶ 12} In State v. Jenks (1991),
An appellate court's function when reviewing the sufficiencyof the evidence to support a criminal conviction is to examinethe evidence admitted at trial and determine whether suchevidence, if believed, would convince the average mind of thedefendant's guilt beyond a reasonable doubt. The relevant inquiryis whether, after viewing the evidence in a light most favorableto the prosecution, any rational trier of fact could have foundthe essential elements of the crime proven beyond a reasonabledoubt.
{¶ 13} In contrast, when reviewing whether a verdict is against the manifest weight of the evidence, the appellate court must review the entire record, weigh all of the evidence and all of the reasonable inferences, consider the credibility of the witnesses and determine whether in resolving conflicts in the evidence, the fact finder "clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Thompkins (1997),
{¶ 14} Port was convicted of Carrying a Concealed Weapon in violation of R.C.
No person shall knowingly carry or have, concealed on theperson's person or concealed ready at hand, any of thefollowing: (1) A deadly weapon other than a handgun; (2) A handgun other than a dangerous ordnance; (3) A dangerous ordnance.
Furthermore, R.C.
"Deadly weapon" means any instrument, device, or thing capableof inflicting death, and designed or specially adapted for use asa weapon, or possessed, carried, or used as a weapon.
a weapon is concealed if it is so situated as not to bediscernable by ordinary observation by those near enough to seeit if it were not concealed, who would come into contact with thepossessor in the usual associations of life; but that absoluteinvisibility is not required, since ordinary observation does notextend to a search unusually careful, thorough or detailed, madebecause of suspicion that contraband which is not visible byordinary observation may in actuality be present.
Furthermore, the Ninth District Court of Appeals found that a weapon need not be totally hidden from observation in order to render it concealed within the meaning of the statute. State v.Brandle (1996),
{¶ 17} In this case, Officer Musser testified at the trial that:
A: Darrell opened up the car door, he started to get out,Major Caryer was on the passenger's side observing the passenger,and he yelled to me, "Knife, knife" two times.
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Q: Now, what did you do when Major Caryer yelled "knife"? A: I took a couple steps towards the front of the car, Ilooked — I had my flashlight out, I looked in and I saw theknife. I held Darrell by his right arm. He was already stillgetting out of the car. I had escorted him out and we started towalk towards the back of the vehicle.
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Q: Now, did anybody do anything with the knife? A: Yes. * * * Major Caryer walked around, secured the knife,and put it into my cruiser. Q: So Major Caryer's the one that actually recovered theknife? A: Yes. Q: Now, did you — after Major Caryer yelled "knife", did youobserve the knife yourself? A: Yes, I did. I had to take a different angle to see theknife, though. Q: And was that before Major Caryer had recovered it? A: Yes. Q: Can you tell the jury exactly where that knife waslocated? A: It was located on the driver's seat, on the right half ofthe seat.
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Q: Where was the knife recovered in relation to where theDefendant had been seated? A: When I saw the knife it was probably mid thigh back on thedriver's seat, on the right half of the seat. Q: Was that observable before the Defendant got out of thevehicle? A: No, it wasn't. Q: Do you know if the knife was where he would have actuallybeen seated on top of it? A: That's where I assume it was. I had observed him the entiretime I was at the — I had the whole contact with him. And when hegot up there was no way that anybody could have put the knifeunderneath him because I would have seen that. Q: Now, when you had the Defendant get out of the vehicle didyou lose sight of him at any point between the time you told himto get out of the vehicle and he actually got out of thevehicle? A: No, I didn't.
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Q: Now, this knife, can you — that you saw on the seat, yousaid at about mid thigh? A: Yes. Q: Can you describe that knife for us? A: It was a Winchester lock blade pocket knife, and it waslocked in the open position, the blade exposed. Q: So when you say "open position", you mean what? A: I mean the pocket knife was open ready for use.
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Q: As an Officer are knives something you have particularconcern about? A: Yes. Q: And why's that? A: They are deadly. Q: And why do you say they're deadly? A: A knife blade can be used to cut, stab, slice. That'sdefinitely a safety concern. Q: And in your experience are they something that can, infact, cause death? A: Yes, they are. Q: Now, with respect to this knife, after you found it, didyou talk to the Defendant about this knife? A: Yes, I did. * * * Q: And what did he say? A: He said he had it for protection. That he was havingproblems with — with someone — I believe he said his name wasDavid Daniels. Q: So he had it for protection because he was having problemswith a David Daniels? A: Yes. Q: Did he admit that was his knife? A: Yes.
Aug. 30, 2005 Trial Trans. p. 277-292. In addition, Major Caryer testified at his deposition as follows:
A: * * * I know the Officer asked Mr. Port to step out of thecar, and as he leaned forward to start getting out of the car Isaw a fairly large lock blade knife underneath his left thigh.Told the Officer there was a knife there — Q: Let's back up a second. When you first approached the caryou said you saw the Defendant seated in the driver's seat? A: Yes. Q: Did you see the knife at that time? A: No. Q: Why not? A: It was underneath his leg. Q: And so he actually had to move his leg in order for you tobe able to see it? A: Correct. Q: You said it was a lock blade. Was it closed or open? A: It was an open lock blade.
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Q: You said the knife was right under his right thigh. Couldyou explain for us exactly, you know, where the blade was;whether it was facing straight out towards the steering wheel or— A: The knife was with the point pointing towards the dash, thehandle pointing towards the back of the seat, and it was rightunderneath his right thigh laying right in line with his leg. Soif his leg's — the knees pointed towards the dash, the point ofthe knife was towards the dash. Q: Okay. A: And by the hip, the handle would have been towards thehip. Q: Okay. * * * Aug. 12, 2005 Depo. of Major Caryer p. 4-5, 17-18.
¶ 18 In sum, in reviewing the totality of the evidence, we cannot conclude that the trial court clearly lost its way or created a manifest miscarriage of justice. Furthermore, after viewing the entire record and the evidence in the light most favorable to the State, we conclude that a rational trier of fact could have found the essential elements of Carrying a Concealed Weapon were proven beyond a reasonable doubt. Accordingly, Port's first and second assignments of error are overruled.
{¶ 19} Port alleges in his second assignment of error that his trial counsel failed to raise the affirmative defense to Carrying a Concealed Weapon and he failed to request jury instructions on his affirmative defense.
{¶ 20} R.C.
It is an affirmative defense to a charge under division (A)(1)of this section of carrying or having control of a weapon otherthan a handgun and other than a dangerous ordnance that the actorwas not otherwise prohibited by law from having the weapon andthat any of the following apply:
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(2) The weapon was carried or kept ready at hand by the actorfor defensive purposes while the actor was engaged in a lawfulactivity and had reasonable cause to fear a criminal attack uponthe actor, a member of the actor's family, or the actor's home,such as would justify a prudent person in going armed.
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(4) The weapon was being transported in a motor vehicle forany lawful purpose, was not on the actor's person, and, if theweapon was a firearm, was carried in compliance with theapplicable requirements of division (C) of section
{¶ 21} In order to prevail on a claim of ineffective assistance of counsel, Port must establish both of the following:
1. Trial counsel made errors so serious he was no longerfunctioning as counsel in the manner guaranteed by the SixthAmendment; and 2. There is the reasonable probability that were it not fortrial counsel's errors, the results of the trial would have beendifferent.
See Strickland v. Washington (1984),
{¶ 22} In this case, Officer Musser testified that during the stop Port stated the following with respect to the knife that was found in the vehicle:
A: He said he had it for protection. That he was havingproblems with — with someone — I believe he said his name wasDavid Daniels. Q: So he had it for protection because he was having problemswith a David Daniels? A: Yes. Q: Did he admit that was his knife? A: Yes. Q: Did he suggest that he had any other use for the knifeother than to have it for protection against David Daniels? A: At the time, no. * * *
Aug. 30, 2005 Trial Trans. p. 292. Furthermore, Major Caryer testified that Port said:
Daniels was assaultive and was causing some kind of problems.He actually said that Daniels was a bad ass. He had been in themarines and that he had assaulted somebody a few days beforethat.
Aug. 12, 2005 Depo. of Major Caryer p. 8.
{¶ 23} Upon review, it is our conclusion that the claim of ineffective counsel regarding the failure to raise an affirmative defense or to request jury instructions on an affirmative defense is meritless. R.C.
{¶ 24} Accordingly, Port's assignments of error are overruled and the October 5, 2005 Judgment of conviction and sentence entered in the Court of Common Pleas, Marion County, Ohio is affirmed.
Judgment affirmed. Bryant, P.J., concurs. Rogers, J., concurs separately.
Concurrence Opinion
I concur with the majority's decision in this case. I write separately to stress the fact that a knife is not, per se, a deadly weapon.
{¶ 26} It is common knowledge that many people carry pocket knives. It is also common knowledge that knives, as well as many other objects commonly carried, can be used as a weapon and are capable of inflicting death. The definition of a deadly weapon is contained in R.C.
"Deadly weapon" means an instrument, device, or thing capableof inflicting death, and designed or specially adapted for use asa weapon, or possessed, carried, or used as a weapon.
{¶ 27} This is a two part definition. First, it requires a finding that the "instrument, device or thing [is] capable ofinflicting death." Id. (Emphasis added.) Second, it requires a finding that the "instrument, device or thing [is] * * *designed or specially adapted for use as a weapon, or possessed,carried, or used as a weapon." Id. (Emphasis added.)
{¶ 28} Most objects, including pens, pencils, and automobiles, will meet the first portion of this definition, which is generally an objective test. The second portion is often more subjective, and the same "instrument, device or thing" may meet the definition in certain circumstances and, yet, not meet the definition in other circumstances. For example, an automobile is generally a device used for transportation, is not designed as a weapon and, generally, not used as a weapon. However, when directed by a person with the intent to do physical harm, it is being used as a weapon and can certainly be capable of causing death.
{¶ 29} I am concerned by the majority opinion's reference to the case of State v. Manning, supra, as apparent authority for finding a knife with a blade of less than two inches to be a deadly weapon. The Manning Court obviously took into consideration the circumstances of a high crime area, the early morning hour, the unusual nature of the instrument and the defendant's statement that he "had no weapons or anything that would `stick' the officer." Id. Furthermore, it was not a unanimous decision.
{¶ 30} The general rule is that a folding knife is not a deadly weapon, unless and until some extrinsic fact or circumstance distinguishes it from the norm. Columbus v. Dawson
(1986),
{¶ 31} In Cathel the knife had a four inch blade, locked into place and bore the trademark "Deerslayer."
Contrary to the trial court's implication, it is not adefendant's burden to negate the elements of a crime; it is thestate's burden to prove them. To convict [for] carrying a deadlyweapon, the state must prove either 1) that the knife wasdesigned or specifically adapted for use as a weapon, or 2) thatthe defendant possessed, carried, or used the knife as a weapon.
Id.
{¶ 32} In Anderson, the instrument was a folding knife with locking, four-inch blade, and bore the insignia "007" on the side.
As this court has noted, in State v. Sears, to sustain aconviction for carrying a concealed weapon the state must notonly show that the offending instrument was capable of inflictingdeath — an element easily established with respect to manyobjects — but also, and more importantly here, that theinstrument was either: (i) designed or specially adapted for useas a weapon.
See also State v. Deboe; State v. Orlett. When aninstrument is readily identifiable as one capable of inflictingdeath, such as a knife, proof of either additional element isnonetheless essential to sustain a conviction for carrying aconcealed weapon under R.C.
Id. (Citations omitted.)
{¶ 33} The facts of the case sub judice are clear and are distinguishable from the usual situation of an individual driving a car to the office or a gentlemen carrying a folding pocket knife. In the case sub judice, the blade was open and the knife ready at hand. It required no extra motion or manipulation to render the knife "operational" and capable of inflicting serious physical harm or death. In addition, Port stated to the police that he was carrying the knife for protection. There is a reasonable and obvious inference that he meant he was carrying the knife as a weapon. Under the circumstances of this case, the evidence supports the conclusion that Port was carrying a deadly weapon. The evidence also supports the conclusion that the "weapon" was concealed. I, therefore, concur in the result reached by the majority.