From: [bb 063] at [cleveland.Freenet.Edu] (Christopher J. Crobaugh)
Newsgroups: talk.politics.guns
Subject: We won one in Cleveland OH
Date: 20 Jul 1993 11:20:32 GMT
The following case, while decided last fall, was just published in
the Ohio Bar Rev. There are some significant items here; the case
was in the Cuyahoga County 8th Appeals Courts, as opposed to
somewhere in Southern Ohio or something, AND the appellant was NOT
carrying large amounts of cash at the time of his arrest. The
courts seems to have said that not only does the "affirmative
defense" section of the ORC mean just what it says, but that
travel in a "bad neighborhood" meets the criteria set forth in
the ORC that "would justify a prudent man in going armed." I
think (not a lawyer, yet) that this is a significant case, and
you didn't see it in Cleveland media for obvious reasons. Read,
enjoy, and distrubute. My bride works at one of the big hospitals
near University Circle; she took a couple of copies to place in
the nurses' lounge.
COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
COUNTY OF CUYAHOGA
NO. 61403
STATE OF OHIO :
:
:
PLAINTIFF-APPELLEE : JOURNAL ENTRY
:
v. : AND
:
MOHAMMED ASSAD : OPINION
:
:
DEFENDANT-APPELLANT :
DATE OF ANNOUNCEMENT
OF DECISION: SEPTEMBER 24, 1992
CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE
COMMON PLEAS COURT
CASE NO. CR-248166
JUDGMENT: REVERSED.
DATE OF JOURNALIZATION:
APPEARANCES:
FOR PLAINTIFF-APPELLEE: STEPHANIE TUBBS JONES
CUYAHOGA COUNTY PROSECUTOR
BY: JOSEPH V. HOFFER
ASSISTANT COUNTY PROSECUTOR
THE JUSTICE CENTER
1200 ONTARIO
CLEVELAND, OHIO 44113
FOR DEFENDANT-APPELLANT: PATRICK A. D'ANGELO
SUITE 440
THE 113 ST. CLAIR BUILDING
CLEVELAND, OHIO 44114-1214
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SPELLACY, J.:
On February 28, 1990, defendant-appellant Mohammed Assad
("appellant") was indicted by the Cuyahoga County Grand Jury for
one count of Carrying a Concealed Weapon, in violation of R.C.
2923.12. At his arraignment on March 22, 1990, appellant pleaded
not guilty.
On January 10, 1991, appellant's bench trial commenced. The
only witness to testify for the State was Officer Lawrence J.
Stalter from the Rocky River Police Department.
Officer Stalter testified that on December 29, 1989, at
approximately 12:05 A.M., he observed appellant failing to stop
his car completely before the "stop-bar" at a red light.
According to Officer Stalter, appellant stopped his car close
enough to the intersection that he almost caused an accident with
another car driving through the intersection.
Officer Stalter further testified that after appellant
proceeded through the intersection, he activated his overhead
lights in an attempt to stop appellant. Appellant pulled his car
into the driveway of a house about four or five houses from the
1
intersection.
Officer Stalter stated that appellant rapidly exited his
automobile and approached the police cruiser. He asked Officer
Stalter what he did and Officer Stalter promptly informed him of
the violation. Officer Stalter then observed another individual
1
The house was the residence of appellant's brother-in-
law.
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in the passenger seat. That person was later identified as
appellant's nine-year old son.
Officer Stalter then testified that he shone his flashlight
into the front seat of appellant's car and saw the hand grip of a
revolver underneath the driver's seat next to the transmission
hump. Officer Stalter retrieved the gun. It was a fully loaded
.38 caliber revolver.
Officer Stalter stated that appellant informed him that he
was a store owner and that he was on his way home. However, he
had no valuables and little money in his possession. At that
point, appellant was arrested and transported to the police
station.
Appellant testified on his own behalf that he owned two
supermarkets and a Convenient store and was a partial owner of
another supermarket. His three stores were located at 3831 East
93rd Street, 889 Lakeview Road and 2838 Fulton Road, all in the
City of Cleveland, Ohio. Appellant claimed that all of the
stores were located in high crime areas.
Appellant then testified about the robberies and violence in
the areas surrounding his stores. He also testified that his
stores had been previously robbed on several occasions. Thus, he
carried a gun and installed alarm systems in his stores.
Appellant stated that in December, 1989, he personally did
all the banking for his stores on a daily basis. He would go to
the different stores, take the money, deposit the money into the
bank and bring some cash back to the stores. At all times, he
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carried his gun. Appellant said that he registered the gun with
the Cleveland Police and received identification for it.
Appellant further testified that on the evening of December
28, 1989, he dropped off about $7,000 to $8,000 at his Fulton
Road store. At about 11:45 P.M., he proceeded home with the gun
in his possession. Appellant claimed that despite having little
money on him personally, he took the gun home with him so he
could have it in the morning to open another store the next day.
Appellant was arrested after he was stopped by the police,
but he never got his gun back. He subsequently bought another
gun in order to protect himself and his business.
During his cross-examination, appellant testified that he
always carried a gun since his stores were in very bad
neighborhoods. On that particular night, his son was with him
because he had been working in the stores with him.
At the close of all the evidence, the trial court found
appellant guilty of carrying a concealed weapon. The trial court
specifically found that appellant failed to prove the affirmative
defense set forth in R.C. 2923.12(C)(1).
Appellant was subsequently sentenced to a term of one year,
but execution of the sentence was suspended. Appellant was
placed on one year probation.
Appellant filed a timely notice of appeal and subsequently
raised the following assignment of error.
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THE VERDICT IS AGAINST THE WEIGHT OF THE
EVIDENCE.
Appellant basically contends that his conviction of carrying
a concealed weapon was against the manifest weight of the
evidence, since he proved, by a preponderance of the evidence,
the affirmative defenses set forth in R.C. 2923.12(C)(1) and
(C)(2). R.C. 2923.12(C)(1) and (C)(2) provide as follows:
(C) It is an affirmative defense to a
charge under this section of carrying or
having control of a weapon other than
dangerous ordnance, that the actor was not
otherwise prohibited by law from having the
weapon, and that any of the following apply:
(1) The weapon was carried or kept ready
at hand by the actor for defensive purposes,
while he was engaged in or was going to or
from his lawful business or occupation, which
business or occupation was of such character
or was necessarily carried on in such manner
or at such a time or place as to render the
actor particularly susceptible to criminal
attack, such as would justify a prudent man
in going armed.
(2) The weapon was carried or kept ready
at hand by the actor for defensive purposes,
while he was engaged in a lawful activity,
and had reasonable cause to fear a criminal
attack upon himself or a member of his
family, or upon his home, such as would
justify a prudent man in going armed.
Appellant argues that the facts of this case demonstrate
that he had reasonable cause to fear criminal attack upon
himself, such that he was justified in carrying a gun from his
stores to his home.
An appellate court has the power to determine that a convic-
tion was against the manifest weight of the evidence. State v.
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Robinson (1955), 162 Ohio St. 487. The Court must review the
entire record, weigh the evidence and all reasonable inferences,
and consider witness credibility. State v. Davis (1988), 49 Ohio
App. 3d 109; State v. Martin (1983), 20 Ohio App. 3d 171, 175.
The evidence adduced at trial revealed that appellant owned
several stores in very high crime areas. Appellant testified
that he often carried large sums of cash from store to store and
was afraid of being robbed. He stated that his stores had been
robbed on several occasions.
We find that although appellant did not have a large sum of
money on him when he was stopped by the police, he did have a
reasonable belief that he may have been criminally attacked when
he left the Fulton Road store. Appellant departed the Fulton
Road store at a very late hour and he was required to leave in a
very high crime area. Being a store owner, appellant was
justified in believing that he might have been stopped and
robbed.
Thus, we conclude that appellant presented sufficient
competent and credible evidence to support his affirmative
defenses pursuant to R.C. 2923.12(C)(1) and C(2).
Appellant's assignment of error is well taken and is
sustained.
Trial court judgment is reversed.
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This cause is reversed.
It is, therefore, considered that said appellant(s) recover
of said appellee(s) his costs herein.
It is ordered that a special mandate be sent to said court
to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
NAHRA, P.J., AND
PATTON, J., CONCUR.
LEO M. SPELLACY
JUDGE
N.B. This entry is made pursuant to the third sentence of Rule
22(D), Ohio Rules of Appellate Procedure. This is an
announcement of decision (see Rule 26). Ten (10) days from the
date hereof this document will be stamped to indicate
journalization, at which time it will become the judgment and
order of the court and time period for review will begin to run.
--
[bb 063] at [Cleveland.Freenet.Edu] Chris Crobaugh - (216) 327-6655 (V)
"Those who would sacrifice essential liberties for a little
temporary safety deserve neither liberty nor safety." B. Franklin