THE STATE OF OHIO, APPELLEE, v. SWIDAS, APPELLANT.
No. 2011-0244
Supreme Court of Ohio
Submitted November 16, 2011—Decided October 11, 2012.
133 Ohio St.3d 460, 2012-Ohio-4638
PFEIFER, J.
{¶ 1}
Factual and Procedural Background
{¶ 2} Defendant-appellant, Michael Swidas, shot Ulysses “Cory” Altizer. Of that there is no doubt. Swidas claimed that he shot Altizer in self-defense. A jury found that he did not. The issue we consider today focuses only on Swidas‘s location when he fired his weapon. Where he was when he fired the gun makes a significant difference:
The Shooting
{¶ 3} Swidas and Altizer had a history of physical confrontations before the night in question. Altizer and Joe Naples were already at Horvath‘s Pub when Swidas arrived. Altizer first noticed Swidas that night when Altizer went to use the restroom. The two exchanged brief unpleasantries (Altizer: “Hey Sweets, how you doin‘?” Swidas: “Better than you“). By the time Altizer emerged from the restroom, Swidas had left the bar. Some time later—Swidas and Altizer differ on how long—Altizer and Naples left, too.
{¶ 4} Swidas‘s car, a Buick Park Avenue, was backed into a parking space facing Horvath‘s. The spaces were angled. Swidas testified that he heard
{¶ 5} Altizer corroborated Swidas‘s testimony about Swidas‘s position near the car at the time of the shooting. He described Swidas as being on the driver‘s side of the car behind the open door—“between the door and the vehicle, like it—say, like it was a shield.” In relation to the door, he described Swidas as being “like in the corner” where the hinges are. As for Swidas‘s posture, Altizer testified, “He was over the windshield of the car a little bit, and pointing a gun at me, shooting.”
The Trial
{¶ 6} Swidas‘s counsel moved to dismiss the specification at issue at the conclusion of the testimony. He argued that the evidence showed that Swidas was standing outside the vehicle when he fired the shots and that under
“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 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. * * * So, I believe that since the language is clear and unambiguous, and the facts in this case are that the vehicle was unlocked, the door was open, the weapon was retrieved from inside the vehicle, * * * the defendant stood in the well between the open door and the body of the car. Some testimony is, the vehicle was running. * * * The defendant left in it within a matter of seconds. So, the Court overrules the defendant‘s objection to the constitutionality of that statute or its inclusion here under the facts of this case.
[Y]ou will also separately decide whether, beyond a reasonable doubt, the defendant, as an essential element of the offense, purposely or knowingly caused or attempted to cause the death of or physical harm to another and that was committed by discharging a firearm from a motor vehicle.
{¶ 8} The prosecution made it clear to the jury in closing argument that Swidas did not have to be in the vehicle for the specification to apply:
And then the second specification addresses the discharging of a firearm from a motor vehicle. And I‘m sorry; you can [sic] eliminate this language. But it means that he discharged it from a motor vehicle. Not in a motor vehicle or while in a motor vehicle. From.
{¶ 9} The jury acquitted Swidas on the charge of attempted murder but convicted him on two counts of felonious assault with two firearm specifications each, including the specification set forth in
The Appeal
{¶ 10} Swidas appealed his convictions. Two of his propositions of law addressed
{¶ 11} The appellate court rejected Swidas‘s vagueness argument, holding that “[t]he statute is plain on its face—all that is required for the enhancement is that the firearm is discharged ‘from a motor vehicle.’ The term ‘drive-by’ does not appear in the statute nor does the statute require the vehicle to be the starting point of the shooting.” State v. Swidas, 11th Dist. No. 2009-L-104, 2010-Ohio-6436, 2010 WL 5550223, ¶ 21.
{¶ 12} And the court held that
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
R.C. 2941.146 . Here, the evidence introduced at trial reveals that appellant‘s vehicle was running, the headlights were on to illuminate where the victims 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.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
R.C. 2941.146 . The statute clearly gives great weight to the mobile nature of the vehicle. If the legislature wanted to limit the application of the specification to circumstances where the defendant was “within” or “while riding in” the motor vehicle, it could have easily done so. The term “from” encompasses a much broader range of activity.
Id., ¶ 26–27. The court also rejected Swidas‘s equal-protection argument. Id., ¶ 33.
{¶ 13} The matter is before this court upon the acceptance of a discretionary appeal.
Law and Analysis
{¶ 14} We accepted only one of Swidas‘s proposed assignments of error: ”
R.C. 2941.146
{¶ 15}
(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 is precluded unless the indictment, count in the indictment, or information charging the offender specifies that the offender committed the offense by discharging a firearm from a motor vehicle other than a manufactured home.
{¶ 16} The crux of this case is determining what the word “from” means in the phrase “from a motor vehicle.” The court of appeals stated that
Common Usage
{¶ 17}
In accordance with that statutory mandate, we have held repeatedly that “[i]n the absence of a specific statutory definition, words used in a statute must be interpreted in their usual, normal, or customary meaning.” State ex rel. Brenders v. Hall (1995), 71 Ohio St.3d 632, 634, 646 N.E.2d 822; State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 220, 631 N.E.2d 150.
State v. Everette, 129 Ohio St.3d 317, 2011-Ohio-2856, 951 N.E.2d 1018, ¶ 16.
{¶ 18} The Revised Code defines “motor vehicle” (
[U]sed as a function word to indicate a starting point: as (1) a point or place where an actual physical movement (as of departure, withdrawal, or dropping) has its beginning * * *
{¶ 19} The Oxford English Dictionary 210–211 (2d Ed. 1989) also defines “from“: “Denoting departure or moving away: governing a [substantive] which indicates a point of departure or place whence motion takes place.”
{¶ 20} Both definitions refer to a “point” or “place” whence something departs. In the statute, that point or place is “a motor vehicle.” That place is not “the vicinity of a motor vehicle” or “near a motor vehicle.” The statute requires that the starting point of the activity is the motor vehicle itself.
{¶ 21} But a motor vehicle cannot fire a weapon; the statute applies to people. That does not obviate the statutory requirement that the locus of the discharge of the weapon is the motor vehicle itself. For the locus of the discharge to be the motor vehicle, then, the person discharging the weapon must have a substantial physical connection to the vehicle. If a person were in or on a vehicle to the extent that the vehicle was providing substantial support to the person, the locus of that person‘s firing of the weapon would be the motor vehicle. Without a substantial physical connection to the vehicle, a shooter cannot be said to have fired a shot that commenced from the motor vehicle.
Swidas‘s Location
{¶ 22} Our parsing of prepositions continues in determining whether Swidas had a substantial physical connection to the motor vehicle when he shot Altizer; the key to this analysis is the victim‘s use of the word “over.” Altizer testified, “He was over the windshield of the car a little bit, pointing a gun at me, shooting.” He did not testify that any part of Swidas was on the vehicle. The appellate court incorrectly stated that Swidas was “leaning on the vehicle as he discharged his weapon.” The state cites nothing in the record that supports the appellate court‘s statement; no testimony even suggests that Swidas was on the car.
{¶ 23} Indeed, the state does not rely on physical contact to make its case; instead, it basically argues that the vehicle was the instrumentality, the sine qua non, of the crime. That is the same reasoning that the trial court used in denying Swidas‘s motion to dismiss the
Rule of Lenity
{¶ 24} To hold, as the state requests, that “from” includes the penumbra of a motor vehicle would first require a holding that the statute is ambiguous, that
{¶ 25} The state of Washington, in its definition of a drive-by shooting, provides an example of a statute that does clearly proscribe firing weapons from the vicinity of a motor vehicle:
A person is guilty of drive-by shooting when he or she recklessly discharges a firearm as defined in [Wash.Rev.Code] 9.41.010 in a manner which creates a substantial risk of death or serious physical injury to another person and the discharge is either from a motor vehicle or from the immediate area of a motor vehicle that was used to transport the shooter or the firearm, or both, to the scene of the discharge.
Conclusion
{¶ 26} Since we conclude that
Judgment reversed and cause remanded.
O‘CONNOR, C.J., and LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
Morganstern, MacAdams & DeVito Co., L.P.A., and Michael A. Partlow, for appellant.