State v. Johns

164 N.E.3d 564

STATE of Ohio, Appellee

v.Elizabeth C. JOHNS, Appellant

No. WD-19-081

Court of Appeals of Ohio, Sixth District, Wood County.

Decided: December 11, 2020

DECISION AND JUDGMENT

SINGER, J.

{¶ 1} Appellant, Elizabeth Johns, appeals the judgment of the Wood County Court of Common Pleas, following a jury trial, convicting her of one count of complicity to having a weapon under a disability. For the reasons that follow, we reverse and vacate her conviction.

{¶ 2} On appeal, appellant asserts the following assignments of error:

Assignment of Error I: The evidence presented at trial was insufficient to support a conviction for complicity to having weapons while under disability.

Assignment of Error II: The application of R.C. 2923.13 is unconstitutional as applied to Appellant.

Assignment of Error III: The conviction for complicity to having weapons while under disability was against the manifest weight of the evidence.

{¶ 3} The Wood County Grand Jury indicted appellant on a single count of complicity to having a weapon under disability in violation of R.C. 2923.13(A)(2) and (B), a felony of the third degree. Appellant entered a plea of not guilty, and the matter proceeded to a jury trial along with appellant's co-defendant, Brian Brooks.¹ Brooks was indicted on a single count of having a weapon under disability based on the theory that Brooks constructively possessed the weapon. The trial revealed the following pertinent information.

{¶ 4} Between April 8 and April 18, 2018, Brooks was in jail at the Corrections Center of Northwest Ohio. The state did not directly present why Brooks was in jail, but phone conversations with appellant revealed that he was in the process of serving a 30-day jail sentence for a marijuana related offense. Brooks also had pending charges of driving under a suspended license.

{¶ 5} Three of the phone calls between appellant and Brooks were played for the jury. From the phone conversations, it is apparent that appellant and Brooks were in a relationship. In one of the calls, appellant indicated that she does not feel safe in her house. In response, Brooks informed her that there is something in his book bag in her house, and that item is something that he normally kept in his safe, also in her house. In a subsequent call, Brooks gave appellant the code for the safe, and asked her to put his "strap" in there. Testimony at trial revealed that the word "strap" often refers to a handgun. Appellant responded that the gun was already upstairs. Brooks stated that she must have gotten it out of his book bag and carried it upstairs. He then jokingly asked appellant if she shot anybody. Appellant indicated that she had not shot it because it jams, and that she does not feel comfortable shooting it outside like Brooks does. Notably, Brooks stipulated at trial that, at all relevant times, he was under a disability and was prohibited from possessing a firearm.

{¶ 6} On April 13, 2018, after the three phone calls had been made, the police executed a search warrant at appellant's residence. During the search, the police found a loaded and operational .45 caliber semi-automatic handgun on the bedroom nightstand. Nearby was a safe, which the police were able to open using the combination that Brooks gave over the phone to appellant. The police also found a book bag. A fourth phone call between appellant and Brooks was played for the jury in which appellant and Brooks discussed the police's search of the house.

{¶ 7} After the presentation of the evidence, appellant moved for an acquittal pursuant to Crim.R. 29, on the basis that she was not under a disability, and had no knowledge that appellant was under a disability. The trial court denied appellant's motion. The jury then returned with a verdict of guilty. At sentencing, the trial court sentenced appellant to three years of community control.

{¶ 8} In her first assignment of error, appellant argues that her conviction was based on insufficient evidence. In reviewing a record for sufficiency, "[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 9} Here, appellant was convicted of complicity to possessing a weapon under disability in violation of R.C. 2923.13(A)(2), which provides, "Unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply: * * * (2) The person is under indictment for or has been convicted of any felony offense of violence." The parties do not dispute that appellant is not under any disability. Rather, the state argues that she was complicit in Brooks' commission of the offense. To that end, R.C. 2923.03(A) provides, in relevant part, "No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: * * * (2) Aid or abet another in committing the offense."

{¶ 10} "To establish that a defendant aided and abetted a crime, the evidence must prove that the defendant ‘supported, assisted encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal.’ " State v. Richter , 2019-Ohio-5422, 151 N.E.3d 186, ¶ 22 (6th Dist.), quoting State v. Johnson , 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus. "Thus, the state must prove two criminal intents for the accomplice: first that the accomplice had the same criminal intent as the principal offender and, second, that the accomplice also intended to help the principal commit the offense." Id. , quoting State v. Middleton , 6th Dist. Lucas No. L-05-1162, 2006-Ohio-6634, 2006 WL 3690897, ¶ 14. "Evidence of aiding and abetting may be shown by either direct or circumstantial evidence, and the sharing in criminal intent may be inferred from presence, companionship, and conduct before and after the offense is committed." State v. Cathcart , 6th Dist. Lucas No. L-06-1225, 2008-Ohio-370, 2008 WL 302727, ¶ 24, citing State v. Lett , 160 Ohio App.3d 46, 2005-Ohio-1308, 825 N.E.2d 1158, ¶ 29 (8th Dist.).

{¶ 11} Appellant argues that the state failed to produce any evidence that appellant intended to aid, abet, solicit, procure, or cause Brooks to possess the firearm. In particular, appellant asserts that Brooks brought the gun into her home, and then while he was in prison, she took possession of the gun and used it for her own protection. Appellant contends that in so doing, she frustrated Brooks' ongoing efforts to possess the firearm. Appellant also argues, in connection with her second assignment of error, that the state failed to produce any evidence that appellant knew that Brooks was under a disability and was not permitted to possess the firearm.

{¶ 12} In response, the state argues that it is not required to prove a mental state for the element that a defendant has a disability. See State v. Johnson , 128 Ohio St.3d 107, 2010-Ohio-6301, 942 N.E.2d 347, ¶ 42 ("[F]or the offense of having weapons while under disability defined by R.C. 2923.13(A)(3), the state is not required to prove a culpable mental state for the element that a defendant is under indictment for or has been convicted of any offense involving a drug of abuse."). Furthermore, the state contends that an accomplice can be guilty of aiding and abetting another person based upon the other person's disability. The state then notes that the record shows that Brooks had a disability, that appellant and Brooks discussed the gun and the moving of the gun from the book bag to the safe, and that when the search was conducted, the gun, book bag, and safe were all found in appellant's residence. Thus, the state concludes that because appellant knew about the gun and moved the gun for Brooks, and because Brooks was prohibited from possessing a firearm due to his disability, appellant is guilty of complicity to having a weapon under disability.

{¶ 13} We disagree with the state's conclusion. Assuming, for purposes of this analysis, that appellant supported or assisted Brooks in the possession of the gun, we still find that the evidence is insufficient to show that appellant was complicit because there is no evidence that appellant intended to help Brooks commit the crime of having a weapon under disability. Here, the state did not produce any evidence to show that appellant knew that Brooks was...