[This opinion has been published in Ohio Official Reports at
74 Ohio St.3d 154.]
THE STATE OF OHIO, APPELLANT, v. TANIGUCHI, APPELLEE.
[Cite as State v. Taniguchi, 1995-Ohio-163.]
Criminal law—Conviction under R.C. 2923.13 for having a weapon while under
disability is not precluded when there is an acquittal on, or dismissal of, the
indictment which formed the basis for the charge of having a weapon while
under disability.
A conviction under R.C. 2923.13 for having a weapon while under disability is not
precluded when there is an acquittal on, or dismissal of, the indictment
which had formed the basis for the charge of having a weapon while under
disability.
(No. 94-1164—Submitted September 26, 1995—Decided December 6, 1995.)
CERTIFIED by the Court of Appeals for Franklin County, No. 93AP-1131.
__________________
{¶ 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
SUPREME COURT OF OHIO
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.
__________________
Michael Miller, Franklin County Prosecuting Attorney, and Joyce S.
Anderson, Assistant Prosecuting Attorney, for appellant.
Terry K. Sherman, for appellee.
__________________
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 R.C.
2923.13, which provides:
“(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
2
January Term, 1995
“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
R.C. 2923.13(A)(2), as if the statute provided that no person shall have a firearm if
that person is under an indictment for a felony of violence and is convicted pursuant
to that indictment.
{¶ 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.). R.C. 2923.13(A)(2) is clear and
3
SUPREME COURT OF OHIO
unambiguous on its face, and requires no interpretation. The fact that a defendant
is later acquitted of the underlying felony of violence does not change the fact that
the defendant was under indictment at the time he or she allegedly chose to have a
weapon, and the defendant therefore falls within the terms of the statute.1
{¶ 8} It is basic hornbook law that the state under its police powers may
impose restrictions on who may possess firearms. See Arnold v. Cleveland (1993),
67 Ohio St.3d 35, 47,
616 N.E.2d 163, 172; Mosher v. Dayton (1976),
48 Ohio
St.2d 243, 247-248,
2 O.O.3d 412, 414,
358 N.E.2d 540, 542-543. Absolutely no
support can be found in the wording of R.C. 2923.13 for the argument that once an
underlying indictment supporting a disability charge has been resolved in a
defendant’s favor, the weapons charge is no longer viable. Moreover, the
legislative intent in precluding a person indicted for a felony of violence from
having a weapon while that indictment is pending, regardless of the outcome of the
pending indictment, is bolstered by the General Assembly’s choice to begin R.C.
2923.13 with the phrase “[u]nless relieved from disability as provided in section
2923.14 of the Revised Code.” R.C. 2923.14 provides a method for a person to
obtain relief from the disability when the disability was imposed solely under R.C.
2923.13(A)(2) or (A)(3) (that is, when the disability attached solely due to the fact
of a previous indictment or adjudication of delinquency on certain specified
offenses), by applying to the common pleas court in the county of residence.
Inasmuch as the General Assembly has clearly provided a method for an individual
who is under indictment to have a weapon legally, the intent is obvious that if relief
is not obtained, R.C. 2923.13 is violated. A violation of R.C. 2923.13(A)(2) or
(A)(3) is committed at the time a person is under indictment. The later acquittal
1. Appellee does not argue that he had insufficient notice of the felonious assault indictment against
him, nor does he argue any issue concerning inadequate notice that he would be disabled from
weapons possession due to that prior indictment. See, e.g., State v. Quiles (Feb. 3, 1993), Lorain
App. No. 92CA005316, unreported, at 2-4,
1993 WL 27444. Therefore this case presents no notice
issue for our review.
4
January Term, 1995
on, or dismissal of, the underlying indictment has no retroactive effect on the
existence of the indictment itself, and does not convert the underlying indictment
into a nullity.
{¶ 9} For all the foregoing reasons, we agree with the reasoning of the court
in McQuay and hold that a conviction under R.C. 2923.13 for having a weapon
while under disability is not precluded when there is an acquittal on, or dismissal
of, the indictment which had formed the basis for the charge of having a weapon
while under disability.
{¶ 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 appeals is reversed, and this cause is remanded to the trial court for further
proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
MOYER, C.J., DOUGLAS, WRIGHT, F.E. SWEENEY, PFEIFER and COOK, JJ.,
CONCUR.
__________________
5
