THE STATE OF OHIO, APPELLANT, v. TANIGUCHI, APPELLEE.
No. 94-1164
SUPREME COURT OF OHIO
December 6, 1995
74 Ohio St.3d 154 | 1995-Ohio-163
Submitted September 26, 1995. CERTIFIED by the Court of Appeals for Franklin County, No. 93AP-1131.
Criminal law—Conviction under
A conviction under
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{¶ 1} The facts of this case are basically undisputed. Defendant-appellee, Jay Taniguchi, while under indictment for felonious assault, was a suspect in an unrelated matter involving the cashing of stolen checks. Police officers executing a search warrant relative to the stolen checks found a gun in appellee‘s apartment, and appellee was indicted on several charges. For our purposes, the relevant part of this second indictment is two counts of having a firearm while under disability, the disability attaching due to appellee‘s pending indictment for felonious assault.
{¶ 2} Appellee filed a motion to dismiss the two counts of having a weapon while under disability after he was acquitted on the felonious assault charge arising from the first indictment. The trial court granted the motion, relying on State v. Winkelman (1981), 2 Ohio App.3d 465, 467, 442 N.E.2d 811, 815, overruled on other grounds State v. Frederick (July 17, 1989), Butler App. Nos. CA88-07-111 and CA88-07-118, unreported, 1989 WL 80493. Winkelman held that when a prior indictment which serves as the basis for a charge of having a weapon under disability is resolved in the defendant‘s favor prior to the trial on the disability charge, that prior indictment is rendered ineffective to support the disability charge. The court of appeals affirmed the judgment of the trial court, and finding its decision to be in conflict with the decision of the Fifth District Court of Appeals in State v. McQuay (Aug. 6, 1990), Stark App. No. CA-8105, unreported, 1990 WL 120754, the appellate court certified the record of the cause to this court for review and final determination.
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Terry K. Sherman, for appellee.
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ALICE ROBIE RESNICK, J.
{¶ 3} The issue certified for our review is “[w]hether a defendant‘s acquittal on a prior charge, which served as the basis for charges against the defendant for having a weapon while under indictment, thereafter precludes a conviction on the weapon disability charges.”
{¶ 4} Appellee‘s disability from having a weapon was imposed by
“(A) Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly *** have *** any firearm *** if any of the following apply:
“***
“(2) Such person is under indictment for *** any felony of violence ***.”
{¶ 5} The court of appeals, in adopting the reasoning of Winkelman, supra, agreed with the proposition that when a defendant is acquitted on the underlying indictment, the disability based upon that previous indictment is considered “dissolved ab initio” so that the charge of having a weapon under disability fails. See Winkelman, 2 Ohio App.3d at 467, 442 N.E.2d at 815. Thus, the court of appeals, like the court in Winkelman, essentially read an additional element into
{¶ 6} In State v. McQuay (Aug. 6, 1990), Stark App. No. CA-8105, unreported, at 4, the Fifth District Court of Appeals stated:
“[W]e do not agree with the logic of Winkelman. R.C. 2923.13 prohibits any person under indictment for a felony of violence from acquiring, having, carrying, or using a firearm until such time as the indictment is dismissed, an acquittal rendered, or relief from disability obtained. In our view, regardless of the final outcome of the indicted charge, the gravamen of the disability is whether the indictment is pending.
“We find that once indicted, a person is under disability until such time as the indictment is resolved. However the matter is resolved has no retroactive effect, and a favorable resolution is not a legal defense to charges brought for wrongdoing during the pendency of the indictment.” (Emphasis sic.)
{¶ 7} Like the court in McQuay, we see no need to read into the statute a requirement of an indictment which eventually leads to conviction. A court should give effect to the words actually employed in a statute, and should not delete words used, or insert words not used, in the guise of interpreting the statute. State v. Waddell (1995), 71 Ohio St.3d 630, 631, 646 N.E.2d 821, 822; Bernardini v. Conneaut Area City School Dist. Bd. of Edn. (1979), 58 Ohio St.2d 1, 4, 12 O.O.3d 1, 2-3, 387 N.E.2d 1222, 1224. See State v. Rose (1914), 89 Ohio St. 383, 389, 106 N.E. 50, 52 (Courts should not construe words that need no construction or interpret language that needs no interpretation.).
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{¶ 9} For all the foregoing reasons, we agree with the reasoning of the court in McQuay and hold that a conviction under
{¶ 10} Given our holding, appellee‘s acquittal on the prior assault charge did not require that the weapon-disability charges be dismissed, and the trial court erred in dismissing the charges because of the acquittal. The judgment of the court of
Judgment reversed and cause remanded.
MOYER, C.J., DOUGLAS, WRIGHT, F.E. SWEENEY, PFEIFER and COOK, JJ., CONCUR.
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