THE STATE OF OHIO, APPELLEE, v. ANDERSON, APPELLANT

No. C-800464

Court of Appeals of Ohio, Hamilton County, First Appellate District

2 Ohio App. 3d 71; 440 N.E.2d 814; 1981 Ohio App. LEXIS 9910; 2 Ohio B. Rep. 79

 
June 3, 1981

DISPOSITION:  [***1] 

Judgment reversed.

HEADNOTES: Criminal law -- R.C. 2923.12 -- Conviction for carrying concealed weapon reversed, when -- Evidence fails to show knife designed or adapted for use as a weapon.

SYLLABUS: O.Jur 3d Criminal Law 2382.

In order to sustain a conviction for carrying a concealed weapon, the state must not only show that the offending instrument was capable of inflicting death, but also, that the instrument was either: (i) designed or specially adapted for use as a weapon; or (ii) possessed, carried or used as a weapon. When an instrument is readily identifiable as one capable of inflicting death, such as a knife, proof of either additional element is nonetheless essential to sustain a conviction for carrying a concealed weapon under R.C. 2923.12.

COUNSEL: Mr. richard a. Castellini, Mr. Paul J. Gorman and Mr. John L. Hanselman, Jr., for appellee.

Mr. James A. Rader, for appellant.

JUDGES: SHANNON, P.J., PALMER and KLUSMEIER, JJ., concur.

OPINION:  [*71]   [**815] 

Per Curiam. This cause came on to be heard upon an appeal, from the Municipal Court of Hamilton County.

The defendant-appellant, Steven Anderson, was arrested in the early morning hours of April [***2]  23, 1980, by Cincinnati Police who had responded to a radio call concerning a criminal damaging complaint involving three white males. Arriving on the scene, the officers pursued and apprehended one subject observed fleeing, and found a second suspect hiding under a car. After placing the two subjects under arrest, appellant was found hiding under a van. The appellant was removed from under the van and ordered to place his hands on the van. Instead of doing so, the appellant placed his hands in his pockets, at which time the arresting officer placed his service revolver to the appellant's head and ordered him to remove his hands slowly and assume the position. Appellant then complied. A subsequent frisk revealed that appellant was carrying in his front pocket a knife, which was promptly seized.

The instrument, which served as the evidentiary fundament for the subsequent charge of carrying a concealed weapon in violation of R.C. 2923.12, was a folding knife with a locking, four-inch blade, and bore the insignia "007" on the side, but which could not be easily opened with one hand. At trial, the defendant testified that he carried the knife for use at work in cutting tape and [***3]  rope on boxes that had to be opened. At the conclusion of the evidence, the court found the appellant guilty and imposed the sentence as appears of record. From this conviction and sentence, appellant has taken this timely appeal asserting four assignments of error.

In his first assignment of error, appellant asserts that it was error for the trial court to overrule his Crim. R. 29 motion for acquittal on the grounds that from the evidence adduced at trial the trier of fact could come to but one reasonable conclusion -- that the appellant was innocent. Similarly, in his second assignment of error, appellant contends that the judgment of guilty is against the manifest weight of the evidence and, therefore, should be reversed. Since both assignments raise identical substantive issues, we have combined them here for purposes of disposition.

The crux of appellant's argument on appeal concerns the physical characteristics of the instrument alleged to represent a "deadly weapon" under R.C. 2923.11(A), which provides:

"'Deadly weapon' means any instrument, device, or thing capable of inflicting  [*72]  death, and designed or specially adapted for use as a weapon, or possessed,  [***4]  carried, or used as a weapon."

As this court has noted, in State v. Sears, 1980 Ohio App. LEXIS 11824, (February 27, 1980), Hamilton App. No. C-790156, unreported, to sustain a conviction for carrying a concealed weapon the state must not only show that the offending instrument was capable of inflicting death -- an element easily established with respect to many objects -- but also, and more importantly here, that the instrument was either: (i) designed or specially adapted for use as a weapon; or (ii) possessed, carried or used as a weapon. See also State v. Deboe (1977), 62 Ohio App. 2d 192 [16 O.O.3d 467]; State v. Orlett (1975),  [**816]  44 Ohio Misc. 7 [73 O.O.2d 30]. When an instrument is readily identifiable as one capable of inflicting death, such as a knife, proof of either additional element is nonetheless essential to sustain a conviction for carrying a concealed weapon under R.C. 2923.12.

Our review of the record convinces us that appellant's reliance upon Sears, supra, is well-founded. The record is devoid of any evidence which demonstrates beyond a reasonable doubt that this knife was designed or adapted for use as a weapon. It was neither a switch [***5]  nor other spring-loaded blade, nor a gravity blade capable of instant one-handed operation, and differs only in its somewhat greater length from the familiar type of clasp knife carried as a useful tool by thousands, a difference readily accounted for by the nature of the defendant's work with a moving and storage company requiring the opening of packing cartons and the cutting of twine. Nor, alternately, was there credible evidence that the knife was nevertheless carried, possessed, or used as a weapon. Thus, the trial court erred in not sustaining appellant's Crim. R. 29 motion for acquittal and, for the same reasons, the judgment of the trial court is against the manifest weight of the evidence. Appellant's first two assignments of error are accordingly sustained.

In his third and fourth assignments of error, appellant argues, respectively, that the trial court erred in requiring him to prove his reasonable hypothesis of defense and in refusing to hear evidence on his motion for a new trial. Given the dispositive nature of our ruling on the first two assignments of error, any review of these assignments is mooted and accordingly we decline to consider them.

The judgment [***6]  of the trial court is reversed and the appellant is hereby ordered discharged.