
    The State of Ohio v. McCain.
    (No. 75-CR-1623
    Decided March 25, 1976.)
    Court of Common Pleas of Montgomery County.
    
      Mr. Lee C. Falke, county prosecutor, for plaintiff.
    
      Mr. Bernard A. Kastner, for defendant.
   Love, J.

This cause came on for trial without the intervention of a jury and upon a stipulation of facts entered into between the state and the defendant.

The indictment, filed November 26, 1975, in pertinent part, reads, as follows:

“The Grand Jurors of the county of Montgomery * * * find that Donald McCain, Sr., on or about the 15th day of November, in the year one thousand nine hundred and seventy-five in the County of Montgomery, aforesaid, and state of Ohio, did knowingly use a firearm, to-wit: a .22 caliber EG--23 revolver, serial number 301743; said defendant having been previously convicted in the state of Ohio on July 25, 1975 of a felony of violence, to-wit: Carrying Concealed Weapon, in the case of State of Ohio versus Donald McCain, Sr., being ease Number 75-CE-409, in the Common Pleas Court of Montgomery County, Ohio; contrary to the form of the statute (in violation of Section 2923.13(A)(2) of the Ohio Eevised Code) * *

Defendant entered a plea of not gnilty on December 12, 1975.

The facts admitted in the stipulation (filed March 12, 1976) indicate that on November 15, 1975, police were dispatched to the scene of a shooting. At the scene, they found George Floyd, who had been shot in the abdomen and the mouth, and defendant, who admitted the shooting and had a freshly fired revolver in his right front coat pocket. At the time of the shooting, defendant was on probation for carrying a concealed weapon (case No. 75-CR-409). Stipulations 9 and 10 state: ,

“(9) That the complainant, George Floyd would not prosecute for assault or any offense.
“(10). That the defendant was in fear for his life and felt he had no other recourse.”

R. C. 2923.13(A)(2) provides:

“(A) Unless relieved from disability as provided in Section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any. firearm or dangerous ordnance, if any of the following apply:
“(2) Such person is under indictment for or has been convicted of any felony of violence, or has been adjudged a juvenile delinquent for commission of any such felony;”

■ R. C. 2923.13, as part of Ohio’s new Criminal Code effective January 1,1974, replaces former R. C. 2923.56, which provided that unless the disability was removed, no person under indictment or convicted of “any felony of violence and involving moral turpitude” was le’gally entitled to purchase, own, possess, receive, carry, control, or use any firearm.

The phrase “felony of violence and involving moral turpitude” was nowhere defined in the former Criminal Code. Case law interpretation of the phrase differed. In State v. Adkins (1973), 40 Ohio App. 2d 473, the Court of Appeals for Columbiana County stated that the failure to enumerate specific statutes pertaining to those felonies involving both violence and moral tnrpitnde did not render E. C. 2923.56 unconstitutionally vague, uncertain and indefinite. In State v. Drummonds (1975), 43 Ohio App. 2d 187, the Court of Appeals for Hamilton County felt that the statute’s specification of “moral turpitude” “is at best a redundancy and the whole phrase [is] perhaps tautological if, as would appear to be the case from the various definitions accorded the latter term [moral turpitude], all felonies of violence indeed involved moral turpitude.” Id., at page 188. The court did not proceed any further 'in exam-ing the statute, however, since it concluded that defendant’s prior conviction (stabbing with intent to wound and kill) could properly be classified as a. felony of violence and involving moral turpitude.

Judge Eice at this court held that an indictment under former.. E. C. 2923.56 based upon a prior indictment for carrying a concealed weapon must be quashed, because “carrying a concealed weapon, while a felony, is not one of violence, and involving moral turpitude.” State v. Allen (1971), 30 Ohio Misc. 87, 89. This holding was based upon an. interpretation of E. C. 2923.56, requiring that , a prior conviction must involve a felony of violence and moral turpitude, in order for the legal disability to exist.

In In re a Juvenile (1973), 36 Ohio Misc. 117, the Common Pleas Court of Hamilton County held that , the requirement of involvement of “moral turpitude’'’ rendered former E. C. 2923.56. void for vagueness.

The problems associated with the somewhat confusing language of former E. C. 2923.56 have seemingly been corrected by E. C. 2923.13. The involvement of moral turpitude is no. longer required for a prior conviction to constitute a legal disability to possession or use of a firearm; rather, indictment or conviction for a “felony of violence” is the statutory criterion. The new Criminal Code contains no definition of the precise term “felony of violence,” but E. C. 2901.01(1), provides the following definitions for ■‘offense of violence”:

;“(1) a violation of * * * . [Section] 2923.12 * * — -of the Eevised Code ;
«• # •
“(3) an offense * * * committed purposely or knowingly, and involving physical harm to persons or a risk of serious physical harm to persons

E. C. 2923.12 prohibits carrying a concealed weapon. Defendant’s prior conviction was for a felony violation of this section. According to E. C. 2901.02, the term “offense” includes felonies and misdemeanors. Therefore, a felony conviction under any statute designated as pertaining to an offense of violence would necessarily, by definition, constitute a “felony of violence.”

Furthermore, while the offense of carrying a concealed weapon may not involve actual physical harm, it could convincingly be argued that it does involve a “risk of serious physical harm,” and, therefore, falls under another definition of “offense of violence” as provided in E. C. 2901.01.

The court is aware that carrying a concealed weapon does not, in the common-sense perception of the term, appear to be a “felony of violence” in the same manner as, e. g., “murder, manslaughter, rape, mayhem, kidnapping, burglary, housebreaking; assault with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment for more than one year.” The enumerated offenses (but not carrying a concealed weapon) were listed as “crimes of violence” in the 1938 Federal Firearms Act, Chapter 850, Sections 2 (e), (f), 52 Stat. 1250, which made it a federal crime for a person indicted or convicted of a crime of violence to ship or transport any firearm in interstate commerce, or receive any firearm thus shipped or transported.

Congress has since amended the 1938 Act several times. Title TV of the Omnibus Crime Control and Safe Streets Act of 1968 contains the Gun Control Act of 1968 (Sections 921 et seq., Title 18, U. S. Code) and Sections 922 (g) and (h) are analogous to Sections 2 (e) and (f) in the 1938 Act. However, disability under Sections 922 (g) and (h) is defined not in terms of an indictment or conviction for a “crime of violence,” but in terms of an- indictment or conviction for “a crime punishable by imprisonment for a term exceeding one year.” Similarly, Title YII of the Omnibus Act contains provisions prohibiting the reception, possession, or transportation in commerce of any firearm by “any person who (1) has been convicted by a court of the United States or of a state or any political subdivision thereof of a felony, or (2) has been discharged from the Armed Forces under dishonorable conditions * * *.” Section 1202(a), Title 18, U. S. Code Appendix.

Since their enactment, both Sections 922 and 1202 App., Title 18, U. S. Code, have been subject to constitutional attack because of their definitions of disability. Without exception, the courts have upheld the statutory provisions making unlawful reception (Section 922) or possession (Section 1202) of a firearm by one indicted for or convicted of, respectively, “a crime punishable by imprisonment for a term exceeding one year” (Section 922) or “a felony” (Section 1202), even though the prior indictments or convictions have been for offenses absolutely devoid of violence.

In United States v. Bass, supra, the Supreme Court upheld the validity of Section 1202, but required that a “nexus with interstate commerce” must be shown before conviction under the statute. The dissent of Justice Black-mun and Chief Justice Burger felt that such a showing was unnecessary, and quoted from Senator Long’s introduction on the Senate Floor of the Bill which was to become Title VII:

“Clauses 1-5 [Section 1202 (a)(1), (2), (3), (4), (5)] describe persons who, by their actions, have demonstrated that they are dangerous, or that they may become dangerous. Stated simply, they may not be trusted to possess a firearm without becoming a threat to society. * * *
it# # *
“Nor would Title VII impinge upon the rights of citizens generally to possess firearms for legitimate and unlawful purposes. It deals solely with those-who have demonstrated that they eannot be trusted to possess a-firearm— those whose prior acts — mostly voluntary — have placed them outside of pur society * * *. 404 U. S. at 354, 355-356.”

Section 922 (g) and (h) ánd Section 1202, have also been upheld by the Federal Circuit Courts against challenges based on equal protection, due process, and claims that the statutes constitute a bill of attainder or ex post facto law. See United States v. Thorensen (C. A. 9, 1970), 428 F. 2d 654 (construing a predecessor to Section 922); United States v. Craven (C. A. 6, 1973), 478 F. 2d 1329; United States v. Karnes (C. A. 9, 1971), 437 F. 2d 284; United States v. Weatherford (C. A. 7, 1972), 471 F. 2d 47. In Thorensen, one defendant’s violation of the Federal Firearm's Act was based upon an indictment for simple posssesion of bombs and bombshells. The Ninth Circuit stated, “* * * we think it not unreasonable for Congress to conclude that there is considerable likelihood that one indicted for such an offense has a propensity to misuse firearms.” Id. at 662. In Karnes, defendant’s conviction under Section 1202 was based on a prior dishonorable discharge from the Army for the crime of desertion. Defendant argues that only a person convicted for a past prime of violence could be expected to commit a crime of violence in the future, and since desertion involved only non-violent elements, the statute was invalid as applied to him. The court rejected this contention, however, stating:

“All who are affected by this statute have engaged in activity that should be discouraged — criminal activity. And none are engaged in conduct — possession of firearms — that should be fostered or protected * *
“* * # Karnes has presented nothing to dispel the idea that any person who has committed some crime in the past might commit a crime of violence in the future. Common sense, at least, indicates that persons with criminal eonvic-tions would have more of. a tendency , to commit a crime of violence than persons without criminal records * * Id., at pages 287 and 289. ■

See, also, People v. Dubose (1974), 42 Cal. App. 3d 847, 117 Cal. Rptr. 235, and United States v. Weatherf ord, supra, at page 52, rejecting arguments based upon alleged óver-breadth of statutes making carrying a concealed weapon, or transporting firearms in interstate commerce, illegal if one has been previously convicted of a felony.

In light of the above-discussed federal experience, the court is of the opinion that defendant was properly indicted under B. C. 2923.13, even though his underlying conviction did not involve actual violence. First, because the legislative definition of “offense of violence” includes'those offenses which involve a risk of serious physical harm, so that classification of carrying a concealed weapon as an offense of violence is appropriate; and second, because the circumstances of this case demonstrate the accuracy of federal court rationales for upholding disability convictions even where the previous offense involved non-violent elements : one previously convicted of possession of firearms is likely to misuse them in-the future ; persons 'with criminal convictions have; more of a tendency- to commit subsequent acts of violence. Accordingly, the court now proceeds to a verdict after consideration of the merits of the ease.

' .It is the opinion of the court that the state has proved, beyond a reasonable doubt, that the defendant is guilty of the crime charged in the indictment after carefully . applying the law to the agreed statement of facts.

Judgment accordingly. , 
      
       However, former R. C. 2923.01, provided a list of statutes; conviction of those enumerated felonies resulted in more severe penalties for the offense of carrying a concealed firearm.
     
      
       The final report of the Technical Committee, on the Proposed Ohio Criminal Code (March 1971) states that R. C. 2923.13 is based upon the Gun Control Act of 1968, Title 18, Section 922 et seq., U. S. Code. A look at case law experience with this Act and Section 1202 thus provides some peripheral understanding of R. C. 2923.13.
     
      
       Title IV (Sections 922 [g] and [h]) deals solely with the sending or receiving of firearms as part of an interstate transportation; while Title VII (Section 1202) reaches possesions and intrastate transactions with an interstate connection. United States v. Bass (1971), 404 U. S. 336, 342-43.
     