[This opinion has been published in Ohio Official Reports at
89 Ohio St.3d 488.]
THE STATE OF OHIO, APPELLANT, v. JORDAN, APPELLEE.
[Cite as State v. Jordan, 2000-Ohio-225.]
Criminal procedure—Prosecution for unlawful possession of dangerous
ordnance in violation of R.C. 2923.17—State not required to prove that
defendant knows of the specific characteristics of the weapon or item
possessed that bring it within the statutory definition of “dangerous
ordnance.”
(No. 99-1668—Submitted May 10, 2000—Decided August 30, 2000.)
APPEAL from the Court of Appeals for Montgomery County, No. 17686.
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{¶ 1} On September 8, 1998, an indictment was filed with the Court of
Common Pleas of Montgomery County charging appellee with a violation of R.C.
2923.17(A), unlawful possession of dangerous ordnance, to wit, a sawed-off
shotgun. The relevant facts of this matter are gleaned primarily from three joint
stipulated documents submitted to the trial court.
{¶ 2} On June 19, 1998, Officers Rike and Oldham of the Dayton Police
Department responded to a police dispatch of gunshots being fired in the area of
400 Dearborn. The dispatch also included a description of a male carrying a
shotgun. Upon the officers’ arrival, witnesses at the scene directed them to an alley
and indicated that appellee, Thomas Eugene Jordan, had a shotgun. As the officers
entered the alley they observed appellee, a male matching the description in the
police dispatch, carrying a shotgun. Appellee attempted to flee the scene. The
officers pursued appellee and eventually forced him, at gunpoint, to surrender his
weapon. The officers seized the weapon and placed appellee under arrest.
{¶ 3} Appellee’s weapon was examined and reports were prepared by the
state’s expert, Chris Monturo, and by Larry Dehus, an expert for the defense.
SUPREME COURT OF OHIO
Monturo identified the weapon as an operable Winchester model 1200 12-gauge
shotgun. Monturo measured the weapon and found it to have a barrel length of
seventeen and one-eighth inches and an overall length of twenty-nine and one-half
inches. The measurements in the report of defense expert Dehus differed slightly.
Dehus measured the barrel length of appellee’s weapon at seventeen and seveneighths inches and the overall length was determined to be thirty and one-fourth
inches. In addition, Dehus found that the stock of appellee’s weapon had been cut
off. Dehus’s report also indicated that the weapon was operational.
{¶ 4} Appellee pled not guilty to the charge in the indictment and waived
his right to be tried by a jury. A bench trial was held on January 29, 1999. In an
opinion issued on February 2, 1999, the trial court entered judgment finding
appellee guilty of the charge of unlawful possession of dangerous ordnance in
violation of R.C. 2923.17(A). Appellee was subsequently sentenced to a term of
incarceration of six months.
{¶ 5} Appellee appealed his conviction and sentence to the Court of
Appeals for Montgomery County. In a decision issued July 30, 1999, the court of
appeals reversed the judgment of the trial court and ordered appellee discharged.
{¶ 6} This matter is now before this court upon the allowance of a
discretionary appeal.
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Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and
Cheryl A. Ross, Assistant Prosecuting Attorney, for appellant.
Anthony R. Cicero, Assistant Public Defender, for appellee.
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DOUGLAS, J.
{¶ 7} R.C. 2923.17(A) sets forth the offense of unlawful possession of
dangerous ordnance and provides that “[n]o person shall knowingly acquire, have,
carry, or use any dangerous ordnance.” The word “knowingly” establishes the
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culpable mental state a defendant must possess in order for there to be a violation
of R.C. 2923.17(A). The definition of “knowingly” is found in R.C. 2901.22(B),
which provides that “[a] person acts knowingly, regardless of his purpose, when he
is aware that his conduct will probably cause a certain result or will probably be of
a certain nature. A person has knowledge of circumstances when he is aware that
such circumstances will probably exist.” R.C. 2923.11(K)(1) defines “dangerous
ordnance” to include “any automatic or sawed-off firearm.” R.C. 2923.11(F)
defines a “sawed-off firearm” as meaning “a shotgun with a barrel less than
eighteen inches long, or a rifle with a barrel less than sixteen inches long, or a
shotgun or rifle less than twenty-six inches long overall.”
{¶ 8} The issue presented for our review is whether, in a prosecution for
unlawful possession of dangerous ordnance in violation of R.C. 2923.17(A), the
state is required to prove that a defendant knows of the specific characteristics of
the weapon or item possessed that brings it within the statutory definition of
dangerous ordnance. As applicable to the specific facts of this case, the question
can be more precisely phrased as whether the state is required to show beyond a
reasonable doubt that appellee knew that his shotgun had a barrel length of less than
eighteen inches.
{¶ 9} The trial court in this matter held that the state was not required to
prove that appellee knew, or was aware of the probability, that the barrel of his
shotgun was less than eighteen inches long. The trial court concluded that the state
only had to show that appellee knew that he was carrying a weapon. In interpreting
R.C. 2923.17(A), the trial court read the mens rea requirement of “knowingly” as
applicable only to the element of the offense denoting possession, i.e., “acquire,
have, carry, or use.” Thus, the trial court rejected appellee’s argument that
“knowingly” also modified the words “dangerous ordnance.” Further, the trial
court found that the evidence before the court established that the shotgun in
appellee’s possession met the statutory definition of dangerous ordnance in R.C.
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2923.11(K)(1). Having determined that the state met its burden, the trial court
found appellee guilty of the charge in the indictment and sentenced him
accordingly.
{¶ 10} In reversing the judgment and sentence of the trial court, the court of
appeals concluded that the culpable mental state of knowingly found in R.C.
2923.17(A) requires that the state must prove that the accused had knowledge of
those specific characteristics that made the weapon in his possession dangerous
ordnance. In contrast to the trial court’s decision, the court of appeals held that the
mens rea requirement in R.C. 2923.17(A) was applicable to all of the material
elements of the statute and not limited solely to the possession element. Therefore,
in order to convict appellee for unlawful possession of dangerous ordnance, the
court of appeals held that the state needed to prove that appellee knowingly had a
shotgun and that appellee knew, or was aware of the probability, that the gun he
possessed had a barrel length of less than eighteen inches.
{¶ 11} In the appeal before this court, appellant, state of Ohio, contends that
in a prosecution for unlawful possession of dangerous ordnance, the state must
prove only that a defendant knowingly possessed dangerous ordnance and that the
item is, in fact, a dangerous ordnance as defined in R.C. 2923.11. Appellant argues
that knowledge of possession alone is sufficient for there to be a violation of R.C.
2923.17(A) and that the “knowingly” element of the statute does not require the
state to show that defendant knew of the specific characteristics of the item that
made it dangerous ordnance. Conversely, appellee contends that in order to obtain
a conviction pursuant to R.C. 2923.17(A), the state must prove beyond a reasonable
doubt that the defendant had knowledge that the item possessed had the specific
characteristics that made it dangerous ordnance as defined by R.C. 2923.11. In this
regard, appellee urges this court to affirm the court of appeals.
{¶ 12} Appellee, in the courts below and before us, has relied heavily on the
United States Supreme Court case of Staples v. United States (1994), 511 U.S. 600,
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114 S.Ct. 1793,
128 L.Ed.2d 608. The court of appeals below found the analysis
of mens rea in Staples to be very persuasive and the reasoning of the Staples
majority to be “applicable to the present appeal, if not its holding.” For the
following reasons, we respectfully find that the decision in Staples is not applicable
to our consideration of R.C. 2923.17(A).
{¶ 13} In Staples, the defendant was convicted pursuant to the National
Firearms Act (“Act”), Sections 5801-5872, Title 26, U.S.Code, for possession of
an unregistered machine gun. Staples, 511 U.S. at 602-604,
114 S.Ct. at 1795-
1796,
128 L.Ed.2d at 614-615. Section 5861(d) of the Act makes it a crime for any
person to possess a firearm that is not properly registered. A violation of the Act is
punishable by up to ten years in prison. Section 5871, Title 26, U.S.Code.
{¶ 14} The defendant, Staples, had in his possession a semiautomatic
weapon that had been modified to be capable of fully automatic fire. A fully
automatic weapon is defined as a “firearm” under the Act and all firearms must be
registered in the National Firearms Registration and Transfer Record. Section
5841, Title 26, U.S.Code. Staples testified that he was not aware that the weapon
had been modified and he argued that his alleged ignorance of the weapon’s ability
to fire automatically should shield him from criminal liability for failing to register
his weapon. Id. at 603,
114 S.Ct. at 1796,
128 L.Ed.2d at 615. At issue in Staples
was the mens rea required for a conviction for failing to register a firearm in
violation of Section 5861(d), Title 26, U.S.Code, which section contains no express
mental-state requirement. Specifically, the court considered whether Section
5861(d) requires proof that a defendant knew of the characteristics of his weapon
that made it a “firearm” under the Act.
Id. at 604,
114 S.Ct. at 1796,
128 L.Ed.2d
at 615. The court held in Staples that the government should have been required to
prove beyond a reasonable doubt that Staples knew that the weapon that he
possessed had the characteristics that brought it within the scope of the Act.
Id. at
619,
114 S.Ct. at 1804,
128 L.Ed.2d at 624-625.
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{¶ 15} We find that Staples is distinguishable. Staples is a case involving
federal statutory interpretation. Conversely, we are interpreting a state statute.
Moreover, the statute at issue in Staples, Section 5861(d), Title 26, U.S.Code, is
silent concerning the mens rea required for a conviction. R.C. 2923.17(A), on the
other hand, does have a culpable mental state specified in the section, the mens rea
of “knowingly.” Furthermore, the Staples majority went on to emphasize that its
holding is a narrow one. The court noted that its reasoning depended “upon a
commonsense evaluation of the nature of the particular device or substance
Congress has subjected to regulation and the expectations that individuals may
legitimately have in dealing with the regulated items.” Id. at 619,
114 S.Ct. at 1804,
128 L.Ed.2d at 625.
{¶ 16} We now turn our attention to consider the specific language set forth
in R.C. 2923.17(A). The question before us can be resolved by determining
whether the mental state of “knowingly” in R.C. 2923.17(A) modifies the phrase
“dangerous ordnance.”
{¶ 17} It is well accepted that the cornerstone of statutory construction and
interpretation is legislative intention. State ex rel. Francis v. Sours (1944), 143
Ohio St. 120, 124,
28 O.O. 53, 55,
53 N.E.2d 1021, 1023. In order to determine
legislative intent it is a cardinal rule of statutory construction that a court must first
look to the language of the statute itself. Provident Bank v. Wood (1973),
36 Ohio
St.2d 101, 105,
65 O.O.2d 296, 298,
304 N.E.2d 378, 381. “If the meaning of the
statute is unambiguous and definite, it must be applied as written and no further
interpretation is necessary.” State ex rel. Savarese v. Buckeye Local School Dist.
Bd. of Edn. (1996),
74 Ohio St.3d 543, 545,
660 N.E.2d 463, 465. Moreover, it is
well settled that to determine the intent of the General Assembly “ ‘[i]t is the duty
of this court to give effect to the words used [in a statute], not to delete words used
or to insert words not used.’ ” (Emphasis sic.) Bernardini v. Conneaut Area City
School Dist. Bd. of Edn. (1979),
58 Ohio St.2d 1, 4,
12 O.O.3d 1, 3,
387 N.E.2d
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January Term, 2000
1222, 1224, quoting Columbus-Suburban Coach Lines v. Pub. Util. Comm. (1969),
20 Ohio St.2d 125, 127,
49 O.O.2d 445, 446,
254 N.E.2d 8, 9. A court may interpret
a statute only where the words of the statute are ambiguous. State ex rel. Celebrezze
v. Allen Cty. Bd. of Commrs. (1987),
32 Ohio St.3d 24, 27,
512 N.E.2d 332, 335.
Ambiguity exists if the language is susceptible of more than one reasonable
interpretation. State ex rel. Toledo Edison Co. v. Clyde (1996),
76 Ohio St.3d 508,
513,
668 N.E.2d 498, 504. If a statute is ambiguous, the court, in determining the
intent of the General Assembly, may consider several factors, including the object
sought to be obtained, the legislative history, and other laws upon the same or
similar subjects. R.C. 1.49. Finally, statutes defining criminal offenses and
penalties are to be strictly construed against the state and liberally in favor of the
accused. R.C. 2901.04(A).
{¶ 18} With these principles in mind, we find that the court of appeals erred
in its resolution of this matter. We agree with the court of appeals, albeit for
different reasons, that the mens rea of knowingly set forth in R.C. 2923.17(A) does
apply to the phrase “dangerous ordnance.” We, however, disagree with the court
of appeals regarding the level of knowledge required to sustain a conviction for
possession of dangerous ordnance. We, therefore, reverse the ultimate judgment of
the court of appeals and reinstate appellee’s conviction and sentence.
{¶ 19} As previously indicated, R.C. 2923.17(A) provides that “[n]o person
shall knowingly acquire, have, carry, or use any dangerous ordnance.” The
statutory language at issue in this appeal is ambiguous. R.C. 2923.17(A) is clearly
susceptible of more than one reasonable interpretation. State ex rel. Toledo Edison
Co., supra. Both of the parties to this appeal have spent much time debating
whether the specific words of the statute that are at issue should be subject to a strict
grammatical construction. Appellant argues that the word “knowingly” in R.C.
2923.17(A) is an adverb and adverbs modify verbs. Thus, it is appellant’s
contention that “knowingly” modifies only the words of the statute denoting
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possession, the verbs “acquire, have, carry, or use.” Appellee on the other hand
argues that “knowingly” applies “to the entire predicate of R.C. 2923.17(A),” i.e.,
“acquire, have, carry, or use any dangerous ordnance.” We agree with the court of
appeals that the benefit of engaging in an exercise on the finer points of English
grammar when interpreting a criminal statute is subject to serious debate. As the
court of appeals has aptly pointed out, criminal statutes should inform citizens of
average intelligence what activity is being forbidden. United States v. Harriss
(1954), 347 U.S. 612, 617,
74 S.Ct. 808, 812,
98 L.Ed. 989, 996. In light of the
foregoing, we will not construe the language of R.C. 2923.17(A) in a vacuum.
Unless the mental state of “knowingly” in R.C. 2923.17(A) extends beyond the
element of possession to the object of possession, i.e., dangerous ordnance, then
the statute does very little to put citizens on notice of those activities prohibited by
law.
{¶ 20} Moreover, any other holding limiting the mental state required for
culpability in R.C. 2923.17(A) results in a form of strict criminal liability. Any
statute, R.C. 2923.17(A) included, wherein a culpable mental state is expressly set
forth can never impose strict liability. Consequently, if we were to construe the
mental state of “knowingly” as modifying only the element of possession in R.C.
2923.17(A), the practical effect would be imposition of strict criminal liability in
regard to the “dangerous ordnance” element of the statute.
{¶ 21} It is clearly within the province of the General Assembly to specify
the mens rea required for each element of an offense. Further, it is within the power
of the General Assembly to enact legislation with the purpose to impose strict
criminal liability. R.C. 2901.21(B) provides:
“When the section defining an offense does not specify any degree of
culpability, and plainly indicates a purpose to impose strict criminal liability for the
conduct described in such section, then culpability is not required for a person to
be guilty of the offense. When the section neither specifies culpability nor plainly
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indicates a purpose to impose strict criminal liability, recklessness is sufficient
culpability to commit the offense.”
{¶ 22} We do not believe it was the intent of the General Assembly to
impose strict criminal liability regarding the “dangerous ordnance” element of R.C.
2923.17(A). We note that the General Assembly did indeed specify a mental state,
the mens rea of “knowingly,” in promulgating R.C. 2923.17(A). Clearly, different
elements of the same offense can require different mental states. R.C.
2901.21(A)(2). However, nothing in the language of the statute would lead us to
conclude that the General Assembly plainly indicated its intention to impose strict
criminal liability in determining whether there is a violation of R.C. 2923.17(A). “
‘[T]he existence of a mens rea is the rule of, rather than the exception to, the
principles of Anglo-American criminal jurisprudence.’ ” United States v. United
States Gypsum Co. (1978), 438 U.S. 422, 436,
98 S.Ct. 2864, 2873,
57 L.Ed.2d
854, 869, quoting Dennis v. United States (1951),
341 U.S. 494, 500,
71 S.Ct. 857,
862,
95 L.Ed. 1137, 1147. Further, we must give effect to the words used in a
statute. Bernardini,
58 Ohio St.2d at 4,
12 O.O.3d at 3,
387 N.E.2d at 1224. Were
we to interpret the language of R.C. 2923.17(A) any other way, we would not be
construing the statute as written.
{¶ 23} We are, however, at odds with the court of appeals’ analysis
regarding the degree of knowledge required to sustain a conviction for unlawful
possession of dangerous ordnance. In one instance the court of appeals holds that
“the state must prove that one accused of violating R.C. 2923.17(A) had knowledge
of the facts that made his conduct illegal. In this case, that means that the state had
to prove that [appellee] knew that his shotgun had a barrel less than eighteen inches
long.” (Emphasis sic.) The court of appeals then appears to soften its stance when
it subsequently indicates that in prosecutions for unlawful possession of dangerous
ordnance, the trial court is allowed to make permissible inferences of knowledge in
light of a defendant’s use, familiarity (ownership), and possession of the weapon,
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as well as the actual physical appearance of the weapon. Our concern with this
issue is based primarily on the difficulties inherent in determining a defendant’s
subjective knowledge.
{¶ 24} R.C. 2901.21(A)(2) provides that a person is not guilty of a criminal
offense unless “[h]e has the requisite degree of culpability for each element as to
which a culpable mental state is specified by the section defining the offense.”
(Emphasis added.) Essentially, the consideration becomes a question of the
threshold level of knowledge necessary to find a violation of R.C. 2923.17(A).
{¶ 25} Given the statutory definition of “knowingly” found in R.C.
2901.22(B), we find that the court of appeals was in error when it required the state
to prove that appellee knew that the barrel of his shotgun was less than eighteen
inches long. We believe that this degree of knowledge is beyond the standard
required by R.C. 2901.22(B). Thus, we believe that the definition of “knowingly”
found in R.C. 2901.22(B) does not require the state to show that a defendant knew
the specific characteristics of the item possessed that made it a dangerous ordnance.
Had the General Assembly intended to require the state to carry such a heavy
burden, it could have easily so stated.
{¶ 26} R.C. 2923.17(A) contains a flat prohibition against possession of
dangerous ordnance. Beyond the weapon under consideration here, R.C.
2923.17(A) prohibits possession of certain firearms, explosives and incendiary
devices and, among other items, rocket launchers, torpedoes, and firearm silencers,
as well as certain specified materials including dynamite, TNT, and blasting
powder. See R.C. 2923.11(K). In regulating such items, the General Assembly
obviously had in mind the purpose of protecting and promoting the general safety,
health, and well-being of the community. Therefore, in determining whether a
defendant “knowingly” possessed a dangerous ordnance, we construe R.C.
2923.17(A) as requiring that the state must prove that a defendant know or be aware
of the probability that the item in his possession is dangerous.
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{¶ 27} Regarding the burden of proof, the court of appeals correctly noted
that permissible inferences of knowledge, based at least in part upon fact, could
prove an essential element of the offense. See, generally, Hurt v. Charles J. Rogers
Transp. Co. (1955), 164 Ohio St. 329,
58 O.O. 122,
130 N.E.2d 820, paragraph two
of the syllabus. Therefore, if the accused did not know for certain that the item in
his possession was dangerous ordnance, the state can still show culpability by
objective demonstrations of the defendant’s mental state.
{¶ 28} In light of the foregoing, we believe that there was ample evidence
before the trial court to sustain appellee’s conviction for unlawful possession of
dangerous ordnance. The trial court held in this matter that “[t]he State did not
prove that [appellee] knew, or was aware of the probability, that the barrel of his
shotgun was less than eighteen inches long.” (Emphasis sic.) The court of appeals
concluded that as a result of the trial court’s determination of this factual question,
the state had not met its burden of proving all of the essential elements of the offense
beyond a reasonable doubt. However, based upon our determination that the state
was not required to show that appellee knew that the barrel of his weapon was less
than eighteen inches long, we reverse the court of appeals on this issue. The record
before this court established that appellee was discovered while in possession of a
shotgun. The barrel of the shotgun was measured by experts from the state and
defense and found to be less than eighteen inches in length. The defense’s expert
indicated that the stock of the shotgun was cut off. Finally, when surrendering his
weapon, appellee accidentally discharged the shotgun and according to the police
officers who arrested appellee, the barrel of the shotgun exploded when the gun
fired. The evidence submitted for review was sufficient to prove that appellee was
knowingly in possession of dangerous ordnance. We, therefore, reinstate
appellee’s conviction and sentence.
{¶ 29} One final thought. We share the concern of the United States
Supreme Court in Staples of “ ‘criminaliz[ing] a broad range of apparently innocent
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conduct.’ ” Staples, 511 U.S. at 610,
114 S.Ct. at 1799,
128 L.Ed.2d at 619, quoting
Liparota v. United States (1985),
471 U.S. 419, 426,
105 S.Ct. 2084, 2088,
85
L.Ed.2d 434, 440. In some situations, e.g., those involving a rocket launcher,
grenade, or torpedo, it will be quite easy to determine whether someone is in
knowing possession of dangerous ordnance. In other circumstances, e.g.,
nitroglycerin or picric acid, knowing possession will not be so readily apparent. In
those situations where a defendant, in good faith, has no way of determining that
the item in his possession is dangerous or hazardous, he or she should not be subject
to prosecution under R.C. 2923.17(A). Entirely innocent conduct should not be
punishable.
{¶ 30} Accordingly, we reverse the judgment of the court of appeals and
reinstate appellee’s conviction and sentence.
Judgment reversed.
MOYER, C.J., RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
COOK, J., concurs in judgment only.
LUNDBERG STRATTON, J., concurs in judgment only.
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COOK, J., concurring in judgment only.
{¶ 31} I agree with the majority’s reversal of the court of appeals’ decision
and its conclusion that defendant’s conviction should be reinstated. But I do so for
different reasons. I agree instead with the trial court’s conclusion that the word
“knowingly” modifies only the verbs “acquire, have, carry, [and] use” and not the
words “dangerous ordnance.”
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