 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Butler5/10/1989
d in Carter that former R.C. 2951.02(F)(3) was unambiguous. The amended version is just as unambiguous as the pre-1983 version.
Defendant also argues that a person is not "armed" within the meaning of R.C. 2951.02(F)(3) if he does not have a firearm or dangerous ordnance on his person. In essence, he contends that he was not armed since he was only in "constructive possession" of a dangerous ordnance. our decision in Carter did not distinguish between actual and constructive possession. Nor does R.C. 2923.17, the statute defining the offense of unlawful possession of dangerous ordnance, to which the defendant pleaded guilty and of which he was convicted. To constitute possession, it is sufficient that the defendant has constructive possession, meaning immediate access to the weapon. State v. Kelley (1973), 12 Ore. App. 496, 500, 507 P. 2d 837, 839; Black's Law Dictionary (5 Ed. Rev. 1979) 1047. Therefore, defendant's argument is without merit.
The import of our decision in Carter, supra, is that for the purposes of R.C. 2951.02(F)(3), a person is armed when in possession of a firearm or a dangerous ordnance. The intent of the arming is not a necessary element of being armed. See Harmony v. United States (1844), 43 U.S. 210, 231-232. The subsequent amendment of R.C. 2951.02(F)(3) making violation of R.C. 2923.12 probationable did not change the meaning of "armed" per our decision in Carter. Since the defendant herein pleaded guilty to unlawful possession of a dangerous ordnance, and was convicted of that offense, he was armed for the purposes of R.C. 2951.02(F)(3).
In amending R.C. 2951.02(F)(3), the General Assembly singled out the offense of carrying a concealed weapon, R.C. 2923.12, as probationable. It could have, if it had so desired, made possession of a dangerous ordnance, R.C. 2923.17, probationable, or changed the meaning of "armed," as used in R.C. 2951.02(F)(3) and as ap-
plied by this court in Carter, to mean more than possession. But it did not. We will not expand the statute to meet a situation not provided for. State, ex rel. Foster, v. Evatt (1944), 144 Ohio St. 65, 29 O.O. 4, 56 N.E. 2d 265, paragraph eight of the syllabus.
Consistent with the unambiguous language of R.C. 2951.02 is the statutory scheme which demonstrates that the General Assembly views offenses involving a dangerous ordnance more harshly than other weapon offenses. For example, unlawful possession of a dangerous ordnance is a fourth degree felony. R.C. 2923.17(C). Under R.C. 2923.12(D), carrying a concealed, unloaded weapon is a first degree misdemeanor. However, if the weapon is a dangerous ordnance, the crime is a third degree felony, regardless of whether the weapon is loaded or unloaded. Furthermore, while the statute provides for certain affirmative defenses to the offense of carrying or having control of a weapon, the defenses are not available if the weapon is a dangerous ordnance. R.C. 2923.12(C).
For the foregoing reasons, we hold that a person convicted of unlawful possession of a dangerous ordnance under R.C. 2923.17(A) is ineligible for probation pursuant to R.C. 2951.02 (F)(3). Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.
SWEENEY, J., dissents.
Page 1 2 Ohio DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|