State v. SwidasState v. Swidas
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Joshua S. Horacek, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Michael A. Partlow, Morganstern, MacAdams & DeVito Co., L.P.A., 623 West St. Clair Avenue, Cleveland, OH 44113-1204 (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Following a jury trial, appellant, Michael T. Swidas, was convicted on two counts of felonious assault, felonies of the second degree, both with a firearm specification pursuant to
{¶2} Appellant and one of the victims, Ulysses Altizer, had known one another for approximately ten years. Over the years, appellant and Altizer had engaged in physical altercations.
{¶3} In November 2008, at approximately 12:00 a.m., Altizer, along with one of his friends, Joseph Naples, arrived at a local bar. Unbeknownst to Altizer, appellant was also at the bar. On his way into the restroom, Altizer noticed appellant and said, “Hey, Sweets, how you doin‘?” Appellant responded, “Better than you.” When Altizer came out of the restroom, appellant was gone. At approximately 1:30 a.m., Altizer and Naples exited the bar. Upon their exit, appellant yelled, “Hey, bitch.” Altizer testified that as he turned around, he saw appellant standing at his vehicle holding a firearm. Appellant‘s vehicle was backed into a parking space, his door was open, and he was standing between the door and the vehicle. Altizer stated that appellant started shooting. Appellant fired five shots, one of which struck Altizer in his finger.
{¶4} Naples testified that as he was about to open the passenger‘s door of Altizer‘s vehicle, he heard a male yell, “What bitches.” He glanced over his shoulder and observed an unidentifiable man by the driver‘s side of a vehicle. Naples then stated he heard approximately five gunshots.
{¶5} Appellant immediately left the scene in his vehicle. A police officer responding to the incident observed appellant‘s vehicle and began to follow him. Noticing that the police officer was about to follow him, appellant threw the firearm out of
{¶6} Appellant was indicted on one count of attempted murder, in violation of
{¶7} Appellant was also sentenced to serve an additional term of eight years—three years pursuant to the firearm specification of
{¶8} Appellant filed a timely notice of appeal and asserts nine assignments of error for our review. As they both relate to
{¶9} “[1.] The trial court erred by failing to dismiss the motor vehicle firearm specifications and find that
{¶10} “[2.] The trial court erred by failing to dismiss the motor vehicle firearm specifications and find that
{¶11} Appellant argues that
{¶12} At trial, appellant objected to the motor vehicle specification, noting that “the only evidence in this case clearly showed that [appellant] was standing behind the front driver‘s-side door of his motor vehicle, but not in the vehicle, at the time that the shots were fired.” The trial court denied appellant‘s objection stating, in part:
{¶13} “‘From a motor vehicle’ is an easily determined standard. Anybody knows whether something is ‘from a motor vehicle?’ *** The legislature certainly knows the words. If they intended the mоtor vehicle to be in motion, or if they intended the shooter to be occupying *** the motor vehicle, or in or upon the motor vehicle, the legislature could have written it that way. *** So, the Court overrules the [appellant‘s] objection to the constitutionality of that statute or its inclusion here under the facts of this case.”
{¶14} This court reviews the interpretation of a statute de novo—without deference to the interpretation of the trial court. State v. Evankovich, 7th Dist. No. 09 MA 168, 2010-Ohio-3157, at ¶6. (Citation omitted.)
{¶15} “In order to determine legislative intent it is a cardinal rule of statutory construction that a court must first look to the language of the statute itself. *** ‘If the meaning of the statute is unambiguous and definite, it must be applied as written and no further interpretation is necessary.’ ***
{¶16} “To determine the intent of the General Assembly ‘“(i)t is the duty of this court to give effect to the words used (in a statute), not to delete wоrds used or to insert words not used.“’ ***
{¶17} “A court may interpret a statute only where the words of the statute are ambiguous. *** Ambiguity exists if the language is susceptible of more than one reasonable interpretation. *** If a statute is ambiguous, the court, in determining the intent of the General Assembly, may consider several factors, including the object sought to be obtained, the legislative history, and other laws upon the same or similar subjects. ***
{¶18} “Statutes defining criminal offenses and penalties are to be strictly construed against the state and liberally in favor of the accused.
{¶19}
{¶20} “(A) Imposition оf a mandatory five-year prison term upon an offender *** for committing a felony that includes, as an essential element, purposely or knowingly causing or attempting to cause the death of or physical harm to another and that was
{¶21} Appellant argues that
{¶22} A review of case law reveals that the specification of
{¶23} In State v. Marshall (Aug. 14, 1998), 6th Dist. No. L-97-1199, 1998 Ohio App. LEXIS 3700, the appellant was a passenger in a vehicle when it stopped and approached the victim. The appellant got out of the vehicle—leaving one foot inside the vehicle. Id. at *3. The appellant shot the victim, got back inside the vehicle, and left. The driver of the vehicle did not turn the engine off during the incident. Id.
{¶24} The appellant in Marshall was found guilty of the specification that the offense of felonious assault was committed by discharging a firearm from a motor vehicle, pursuant to
{¶25} The Marshall court upheld the appellant‘s conviction finding that the evidence was sufficient to find that he discharged a firearm “from a motor vehicle,” stating that the appellant had “one foot in the car and one foot out [of the car].” Id. at *9. The court also observed that the appellant, in his statement immediately after the shooting, stated, “‘I was like half-way in and half-way out of the car.‘” Id.
{¶26} Under the facts of the instant case, it was appropriate to allow the jury to consider whether appellant was subject to the firearm specification of
{¶27} If there is evidence that the discharge of the firearm occurred when the defendant was in physical contact with the vehicle and used the vehicle to facilitate the discharge of the firearm, then it is appropriate to instruct the jury on the specification contained in
{¶28} Appellant further maintains that “there is *** no rational basis for the creation of a separate class of firearm-related offenders – those who discharged a
{¶29} The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides: “No State shall *** deny to any person within its jurisdiction the equal protection of the laws.” Ohio‘s Equal Protection Clause, Section 2, Article I of the Ohio Constitution, states: “All political power is inherent in the people. Government is instituted for their equal protection and benefit ***.”
{¶30} The parties do not dispute that this case involves the rational-basis review, as it does not involve a fundamental right or suspect classification.
{¶31} “‘The rational-basis test involves a two-stеp analysis. We must first identify a valid state interest. Second, we must determine whether the method or means by which the state has chosen to advance that interest is rational.’ ***
{¶32} “‘Under the rational-basis standard, a state has no obligation to produce evidence to sustain the rationality of a statutory classification.’ *** ‘(S)tatutes are presumed to be constitutional and *** courts have a duty to liberally construe statutes in order to save them from constitutional infirmities.’ ***. The party challenging the constitutionality of a statute ‘bears the burden to negate every conceivable basis that might support the legislation.’ ***.” (Internal citations and citations omitted.) Pickaway Cty. Skilled Gaming, LLC v. Cordray, 2010-Ohio-4908, at ¶19-20.
{¶33} Appellant has failed to meet his burden. In his brief, appellant merely states that firing a weapon from a motor vehicle does not cause any further physical or mental injury to a viсtim.
{¶34} In its brief, the state of Ohio cites to People v. Bostick (Cal.App. 1996), 46 Cal.App.4th 287, 292, a California Court of Appeals opinion referring to a similar statute.1 In that case, the court stated:
{¶35} “[F]iring a gun from a motor vehicle is an especially treacherous and cowardly crime. It allows the perpetrator to take the victim by surprise and make a quick escape to avoid apprehension ***. The Legislature could rationally have determined that the foregoing considerations justify imposing an increased sentence on the perpetrator.”
{¶36} We agree with this rationale. The statute provides protection of public safety. In enacting such a statute, the legislature gave great weight to the mobile nature of the vehicle, as it provides a rapid escape from the scene of the crime. Further, a vehicle may provide the offender with additional coverage or concealment.
{¶37} Appellant‘s first and second assignments of error are without merit.
{¶38} Appellant‘s third assignment of error states:
{¶39} “The trial court erred by sentencing appellant to consecutive sentences for
{¶40} Appellant argues that a specification under
{¶41}
{¶42} The First Appellate District has rejected appellant‘s argument that imposing multiple terms for the gun specifications violated his rights under the Double Jeopardy Clause of the United States Constitution. State v. Reese, 1st Dist. Nos. C-060576 & C-060577, 2007-Ohio-4319, at ¶28.
{¶43} “The General Assembly has *** provided in
{¶44} Accordingly, we overrule appellant‘s third assignment of error.
{¶45} Appellant‘s fourth assignment of error states:
{¶46} “The trial court erred by failing to declare a mistrial when the jury expressly stated that it was hopelessly deadlocked and that further deliberations would have no affect on the deadlock.”
{¶47} Under this assigned error, appellant argues that the trial court erred when it ordered the jury to keep deliberating after the jury notified the trial court that it was “hopelessly deadlocked on two of the five charges” and that “no amount of deliberation will change this outcome.”
{¶48} After the jury spent approximately five hours deliberating, it sent the trial court the following question: “What do we do if we are hung on two charges and agree on three charges?” This question was sent at 10:55 a.m. The trial court instructed the jury to “keep deliberating.”
{¶49} Approximately four hours later, at 2:25 p.m., the jury informed the trial court that they were “hopelessly deadlocked on two of the five charges. No amount of deliberation will change this outcome.” The jury then asked the trial court if it had to stay until 5:00 p.m.
{¶50} The court issued a supplemental instruction to the jury, commonly referred to as the Howard charge. See State v. Howard (1989), 42 Ohio St.3d 18, paragraph two of the syllabus. The Howard charge reads:
{¶51} “The principal mode, provided by our Constitution and laws, for deciding questions of fact in criminal cases, is by jury verdict. In a large proportion of cases, absolute certainty cannot be attained or expected. Although the verdict must reflect the verdict of each individual juror and not mere acquiescence in the conclusion of your fellows, each question submitted to you should be examined with proper regard and deference to the opinions of others. You should consider it desirable that the case be decided. You are selected in the same manner, and from the same source, as any future jury would be. There is no reason to believe the case will ever be submitted to a
{¶52} After giving the Howard charge, the trial court instructed the jury to continue its deliberations.
{¶53} The next day, the jury began deliberating at 8:40 a.m. At 8:45 a.m., the jury presented the following question: “Should, in a month or three months, evidence come up that was not brought up in this trial, if we were a hung jury, can Michael S. be retried vеrsus finding him not guilty, for which he cannot be retried?”
{¶54} After discussion with the attorneys, the trial court asked the jury, “after a reasonable additional period of time today and Monday, do you believe that the jury might reach a verdict?” The jury foreperson answered in the affirmative. The jury resumed its deliberations and, subsequently, reached a verdict that same day.
{¶55} Appellant claims that the jury was deadlocked and, although it reached a verdict, it was a “compromised verdict, giving-in to the trial court‘s coercion.”
{¶56} “Whether the jury is irreconcilably deadlocked is essentially ‘a necessarily discretionary determination’ for the trial court to make. Arizona v. Washington (1978), 434 U.S. 497, fn. 28. In making such a determination, the court must evaluate each case based on its own particular circumstances. State v. Mason (1998), 82 Ohio St.3d 144, 167. There is no bright-line test to determine what constitutes an irreconcilably deadlocked jury.” State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, at ¶37.
{¶57} The jury in this case heard testimony from 16 witnesses spanning three days. After initially indicating that it was deadlocked, the trial court instructed the jury using a Howard charge, as that charge is “intended for a jury that believes it is deadlocked, so as to challenge them to try one last time to reach a consensus.” State v. Robb (2000), 88 Ohio St.3d 59, 81. After receiving the Howard charge, the jury was able to continue its deliberations and reach a verdict. While the jury did make a further inquiry, they never informed the trial court that they continued to be deadlocked. In fact, the jury informed the trial court that they were able to reach a verdict. Consequently, we do not find the trial court abused its discretion in finding that the jury was not irreconcilably deadlocked.
{¶58} Appellant‘s fourth assignment of error is without merit.
{¶59} As appellant‘s fifth and sixth assignments of error are interrelated, we address them in a consolidated analysis. As his fifth and sixth assignments of error, appellant asserts:
{¶60} “[5.] The trial court erred by instructing the jury as to ‘flight‘, thereby denying appellant his right to a fair trial and due process of law, in violation of the Sixth
{¶61} “[6.] The trial court erred and abused its discretion by instructing the jury, over repeated objections, that appellant had fled the scene and that flight may indicate consciousness or awareness of guilt, where the facts did not support such an instruction.”
{¶62} Appellant argues the trial court erred in instructing the jury, over objection, on flight. The trial court instructed the jury as follows:
{¶63} “Testimony has been admitted indicating that the defendant fled the scene or threw the handgun out of the motor vehicle. You are instructed that conduct alone does not raise a presumption of guilt, but it may tеnd to indicate the defendant‘s consciousness or awareness of guilt. If you find the facts do not support that the defendant fled the scene or threw the handgun out of the motor vehicle, or if you find that some other motive prompted the defendant‘s conduct, or if you are unable to decide what the defendant‘s motivation was, then you should not consider this evidence for any purpose, except as to count four. However, if you find the facts support that the defendant engaged in such conduct, and if you decide that the defendant was motivated by a consciousness or awareness of guilt, you may, but are not required to, consider that evidence in deciding whether the defendant is guilty of the crimes charged. You alone will determine what weight, if any, to give this evidence.”
{¶64} We review a trial court‘s issuance of a jury instruction for an abuse of discretion. State v. Williams, 8th Dist. No. 90845, 2009-Ohio-2026, at ¶50. An abuse of discretion is the trial court‘s “‘failure to exercise sound, reasonable, and legal decision-
{¶65} Appellant contends that the trial court erred in giving the instruction based on the evidence presented during trial. Appellant argues that although he immediately left the scene of the incident, he was not fleeing. Rather, he was continuing his retreat and “avoiding further attack by Altizer, Naples, and others.”
{¶66} We find no abuse of discretion in the trial court‘s instruction. The evidence in this case revealed that immediately after firing five shots, appellant left the scene of the incident in his motor vehicle. An eyewitness testified that appellant‘s “car went squealing out right after [the shooting].” Further, appellant testified that he threw the firearm out of his vehicle‘s window upon observing a police cruiser begin to follow him.
{¶67} As the evidence presented at trial provided a sufficient evidentiary basis for the jury instruction, we find appellant‘s fifth and sixth assignments of error without merit.
{¶68} Appellant‘s seventh assignment of error states:
{¶69} “Appellant‘s convictions for felonious assault upon Joseph Naples, tampering with evidence and the motor vehicle firearms specifications are not supported by sufficient evidence.”
{¶70} When measuring the sufficiency of the evidence, an appellate court must consider whether the state set forth adequate evidence to sustain the jury‘s verdict as a matter of law. Kent v. Kinsey, 11th Dist. No. 2003-P-0056, 2004-Ohio-4699, at ¶11. A verdict is supported by sufficient evidence when, after viewing the evidence most strongly in favor of the prosecution, there is substantial evidence upon which a jury could reasonably conclude that the state proved all elements of the offense beyond a reasonable doubt. State v. Schaffer (1998), 127 Ohio App.3d 501, 503, citing State v. Schlee (Dec. 23, 1994), 11th Dist. No. 93-L-082, 1994 Ohio App. LEXIS 5862, at *14-15.
{¶71} Appellant challenges the legal sufficiency of the evidence to sustain his convictions on the following: (1) count three, felonious assault, as to Naples; (2) count four, tampering with evidence; and (3) the firearm specification, pursuant to
{¶72} Appellant was convicted of felonious assault, in violation of
{¶73}
{¶74} The jury heard testimony that as Altizer and Naples exited the bar, appellant began to fire toward them. Naples testified that “there were a few shots that came relatively close [to him], where I heard the bullet go by.” Naples stated that he heard the bullets go by “his face; one on [his] right side and one on [his] left side.” See State v. Dixson, 1st Dist. No. C-030227, 2004-Ohio-2575, at ¶28. (Affirming appellant‘s felonious assault conviction where the state presented evidence that Dixson had knowingly fired a gun at the four occupants of a vеhicle.) We hold a rational jury could conclude, beyond a reasonable doubt, that appellant knowingly attempted to cause Naples physical harm by means of a deadly weapon, to wit: a firearm.
{¶75} Appellant also claims that the evidence was insufficient to prove that he tampered with evidence. The offense of tampering with evidence, as set forth in
{¶76} “(A) No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following:
{¶77} “(1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation[.]”
{¶78} Appellant concedes that he threw the firearm out of his vehicle‘s window; however, he maintains that he threw it out of the windоw “with the purpose of not being shot by the police.” Upon a review of the record, we find that appellant‘s conviction for tampering with evidence is supported by ample evidence.
{¶79} The jury heard appellant testify that after he discharged five rounds of ammunition, he immediately left the scene in his vehicle. While driving, appellant
{¶80} Appellant also maintains that the evidence was insufficient to prove the firearm specification, pursuant to
{¶81} “(A) Imposition of a mandatory five-year prison term upon an offender *** for committing a felony that includes, as an essential element, purposely or knowingly causing or attempting to cause the death of or physical harm to another and that was committed by discharging a firearm from a motor vehicle other than a manufactured home ***.” (Emphasis added.)
{¶82} At trial, evidence was introduced that appellant‘s car was running, the headlights were on to illuminate the area where Altizer and Naples were located, the driver‘s door was open, and appellant was standing within the framed area of the door and the vehicle, leaning on the vehicle as he discharged his weapon. The evidence
{¶83} Appellant‘s seventh assignment of error is without merit.
{¶84} Under his eighth assignment of error, appеllant states:
{¶85} “The appellant‘s convictions are against the manifest weight of the evidence.”
{¶86} In determining whether a verdict is against the manifest weight of the evidence, the Supreme Court of Ohio has adopted the following language as a guide:
{¶87} “‘The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.‘” State v. Thompkins (1997), 78 Ohio St.3d 380, 387. (Citations omitted.)
{¶88} Appellant argues that the “jury clearly lost its way by failing to find that [his] actions toward Altizer and Naples were in self-defense.” Under Ohio law, self-defense is an affirmative defense for which an accused must prove the following by a preponderance of the evidence: (1) the accused was not at fault in creating the situation giving rise to the affray; (2) the accused had a bona fide belief that he was in imminent danger of death or great bodily harm and that the only means of escape from such
{¶89} At trial, appellant asserted that he acted in self-defense. The jury heard the testimony of appellant who outlined three previous encounters with Altizer. He stated that he first met Altizer in 2002 at a graduation party. On that occasion, Altizer punched appellant in the face, he fell to the floor, and “a lot of people” starting kicking him.
{¶90} In 2006, appellant again encountered Altizer while at a bar in Wickliffe. A fight ensued, whereby Altizer grabbed, pushed, and kicked appellant.
{¶91} Appellant testified that, approximately one year later, he had another run in with Altizer. Appellant testified that he was at a gas station when “a couple of people” began attacking him. Appellant recognized one of the individuals as Altizer. Appellant informed the jury that he was “beat” with “fists, feet, knees.”
{¶92} Appellant then described the incident at issue. Appellant stated that he observed Altizer at the bar. Appellant was alone; Altizer was with a group of people. When appellant became aware of Altizer‘s presence, he left the establishment because he was “scared of [Altizer].” As appellant was opening the door to his vehicle, appellant testified that a “couple of guys” began “charging toward [him].” Appellant recognized one of the men as Altizer. Appellant testified that he knew Altizer was going to try to attack him again. At this point, appellant testified that he reached for his pistol, which was located under the driver‘s seat. Appellant “grabbed it and pointed it in their
{¶93} The jury also heard the testimony of Altizer, who described the previous encounters between himself and appellant. Altizer noted that, in the past, appellant had threatened to shoot him. Further, Altizer testified that appellant had a gun on his person during the incident in 2006.
{¶94} Altizer and Naples further testified regarding the incident at issue. Altizer and Naples stated that as they were leaving the bar, they heard someone yell. They observed appellant standing by his vehicle. Appellant‘s car was backed into a parking space, his door was open, and he was standing between the door and frame of his vehicle. Altizer stated that appellant pointed the firearm and started shooting.
{¶95} The jury also heard the testimony of Detective Bruce LaForge of the Willowick Police Department. Detective LaForge testified, inter alia, to the location of the bullet strikes. Detective LaForge noted the location of appellant‘s vehicle as well as the location of the bullet strikes.
{¶96} Although the testimony of appellant differed from that of Altizer and Naples, the weight to be given to the evidence and the credibility of witnessеs are primarily matters for the jury to decide. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. In assessing the witnesses’ credibility, the trial court, as the trier of fact, had the opportunity to observe the witnesses’ demeanor, body language, and voice inflections. State v. Miller (Sept. 2, 1993), 8th Dist. No. 63431, 1993 Ohio App. LEXIS 4240, at *5-6. Thus, in this matter, the trial court was “clearly in a much better position to evaluate the credibility of witnesses than [this] court.” Id. at *6.
{¶97} We defer to the judgment of the trial court and find that its verdict did not create such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
{¶98} Appellant‘s eighth assignment of error is without merit.
{¶99} Appellant‘s ninth assignment of error states:
{¶100} “The trial court‘s imposition of a sentence greater than the minimum term permitted by statute, it‘s [sic] imposition of a maximum sentence, and its imposition of consecutive sentences, based upon findings not made by a jury nor admitted by аppellant is contrary to law and violates appellant‘s right to a trial by jury and due process, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.”
{¶101} Appellant argues that the trial court erred when it made findings to support the imposition of consecutive sentences. Appellant maintains that these factual findings run afoul of the Supreme Court of Ohio‘s holding in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. We disagree.
{¶102} In State v. Jordan, 11th Dist. No. 2009-T-0110, 2010-Ohio-5183, at ¶14 & ¶20, we held:
{¶103} “In the wake of Foster, the General Assembly neither revised nor repealed
{¶104} “***
{¶105} “It is the judiciary‘s rоle to apply properly enacted laws to the extent they are constitutional. *** In Ice, the United States Supreme Court held statutory sentencing provisions that require judicial factfinding as a prerequisite to imposing consecutive sentences to be constitutional. This ruling was based upon Apprendi and its progeny, the same body of law upon which the Ohio Supreme Court based its decision in Foster. Because Foster extrapolated from Apprendi and its progeny that laws which require judicial factfinding as a necessary precondition to imposing consecutive sentences are unconstitutional, it, as to this issue, was improperly decided. Subsequent to Ice, the legislature re-imposed the requirement that a sentencing judge must make certain findings before imposing consecutive sentences. Pursuant to the holding in Ice, this legislation is constitutional and thus it is a trial court‘s duty to apply that law as it is written.” (Footnote omitted.)
{¶106} As appellant in this case was sentenced on July 23, 2009, after the effective date of the General Assembly‘s most recent re-enactment to
{¶107} Based on the opinion of this court, we affirm the judgment of the Lake County Court of Common Pleas.
DIANE V. GRENDELL, J., concurs,
CYNTHIA WESTCOTT RICE, J., concurs in part, dissents in part, with Concurring/Dissenting Opinion.
____________________
{¶108} While I agree with the majority‘s analysis of appellant‘s fourth through ninth assignments of error, I believe the trial court erred in failing to dismiss the
{¶109}
{¶110} At trial, the only evidence tending to show appellant discharged a firearm from a motor vehicle was thаt appellant fired shots while standing between the open door and the vehicle, perhaps leaning against the vehicle. It was therefore uncontroverted that appellant was completely outside of the vehicle at the time he fired the weapon. In light of these facts, defense counsel moved to dismiss the
{¶111} “‘From a motor vehicle’ is an easily determined standard. Anybody knows whether something is ‘from a motor vehicle?’ *** The legislature certainly knows words. If they intended the motor vehicle to be in motion, or if they intended the shooter to be occupying *** the motor vehicle, or in or upon the motor vehicle, the legislature could have written it that way.”
{¶112} The court consequently allowed the issue to go to the jury and the panel eventually convicted appellant.
{¶113} I believe the trial court drew an erroneous conclusion on this issue. The applicability of
{¶114} First of all, although the statute does not specifically state a shooter must be “occupying” the motor vehicle when he discharges a firearm, this does not imply a defendant can be held criminally culpable under
{¶115} The majority highlights the facts that the vehicle was running, its headlights were on, and the door was open to buttress its conclusion. These facts, however, do not change the pivotal point that the firearm was shot while appellant was standing in the parking lot. The majority‘s resolution of this issue is both legally and pragmatically unsettling. Now, a jury may reach the
{¶116} In addition to these points, there are additional, perhaps periphery, bases which lend suрport to my position. Courts, and other commentators, in this state have commonly referred to
{¶117} Moreover, a survey of cases which included
{¶118} The facts of this case demonstrate that appellant was not involved in a drive-by shooting and he was neither inside nor partially situated in the vehicle. Appellant was standing in the parking lot next to the vehicle when he discharged his firearm. Even though the actus reus did not obviously match socially prohibited conduct set forth in
{¶119} For these reasons, I respectfully dissent to affirming appellant‘s conviction on the