[Cite as State v. Pope, 2019-Ohio-3599.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180587
TRIAL NO. C-18CRB-19241A
Plaintiff-Appellee, :
vs. :
O P I N I O N.
JAERON POPE, SR., :
Defendant-Appellant. :
Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 6, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Robinson & Jones Co., L.P.A, and Matthew E. Wiseman, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
W INKLER , Judge.
{¶1} After a bench trial, Jaeron Pope, Sr., was convicted of the weapons
offense set forth in R.C. 2923.12(B)(4) for his failure to comply with a lawful order of
a police officer, given during a traffic stop, when Pope was carrying a loaded and
concealed handgun for which Pope had been issued a concealed handgun license.
During the state’s case, the prosecutor did not present evidence that the loaded
handgun had been test-fired to determine if it was operable or could be readily
rendered operable, a necessary element of the offense. Pope moved under Crim.R.
29(A) for an acquittal on that basis. The trial court denied the motion. Pope then
testified in his own defense, to refute the failure to comply allegation. During cross-
examination, he admitted the handgun was “operable” and that he kept it ready to
fire in his pocket. After the defense rested, Pope renewed his Crim.R. 29(A) motion.
The trial court again denied it and subsequently found Pope guilty of the offense.
{¶2} Pope now appeals from his judgment of conviction, arguing in one
assignment of error that the trial court erred by denying his “Crim.R. 29(C) motion
for acquittal” because “the state failed to prove beyond a reasonable doubt that [he]
was in possession of a an operable firearm.” It is clear that Pope’s reference to
Crim.R. 29(C), which only applies in jury trials, instead of Crim.R. 29(A) is a
typographical error, and that Pope is challenging the sufficiency of the state’s
evidence at the close of the state’s case.
{¶3} Although Pope contends the trial court erred by denying his Crim.R.
29(A) motion at the close of the state’s case, Pope presented evidence and testified in
his defense. Thus, he waived his right to challenge the sufficiency of the evidence at
the close of the state’s case. See State v. Guidugli, 157 Ohio App.3d 383, 2004-Ohio-
2871, 811 N.E.2d 567, ¶ 14 (1st Dist.), cited in State v. Wynn, 1st Dist. Hamilton No.
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OHIO FIRST DISTRICT COURT OF APPEALS
C-160782, 2017-Ohio-8045, ¶ 17 (Cunningham, P.J., concurring separately); State v.
Wernke, 1st Dist. Hamilton No. C-800348 (June 13, 1981). Accordingly, we recast
Pope’s assignment of error to have asserted error by the trial court in not granting
his Crim.R. 29(A) motion at the end of all evidence. The standard of review for the
denial of a Crim.R. 29(A) motion is the same standard for a challenge to the
sufficiency of the evidence. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417,
847 N.E.2d 386, ¶ 37.
{¶4} In a challenge to the sufficiency of the evidence, the relevant inquiry is
whether, after viewing the evidence in the 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. See State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979).
Analysis
{¶5} Pope was convicted of violating R.C. 2923.12(B)(4), which provides
that “[n]o person who has been issued a concealed handgun license shall * * *, if []
stopped for a law enforcement purpose and is carrying a concealed handgun,
knowingly disregard or fail to comply with any lawful order of any law enforcement
officer given while the person is stopped, including, but not limited to, a specific
order to the person to keep the person’s hands in plain sight.”
{¶6} The definitions governing offenses involving weapon-control measures
are found in R.C. 2923.11.1 As relevant here, “handgun” is defined as “[a]ny firearm
1 This statute has been amended twice since 2018 when Pope committed the offense, but the
definitions relevant to this appeal have not changed.
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OHIO FIRST DISTRICT COURT OF APPEALS
that has a short stock and is designed to be held and fired by the use of single hand.”
R.C. 2923.11(C). “[F]irearm” is defined as “any deadly weapon capable of expelling
or propelling one or more projectiles by the action of an explosive or combustible
propellant,” including “an unloaded firearm, and any firearm that is inoperable but
that can readily be rendered operable.” R.C. 2923.11(B)(1). Pope’s loaded gun
undisputedly had a short stock, and was designed to be held and fired with one hand.
The issue on review is whether the record contains sufficient evidence that the
handgun met the definition of a firearm because it was operable—capable of firing a
round.
{¶7} Operability of a firearm may be established by an operability report or
testimony of a witness who had test-fired the weapon, but it also may be established
by circumstantial evidence. R.C. 2923.11(B)(2); Thompkins, 78 Ohio St.3d 380, 678
N.E.2d 541, at paragraph one of the syllabus, construing and applying R.C.
2923.11(B)(1) and (2). “The trier of fact may consider all relevant facts and
circumstances surrounding the crime.” Thompkins at paragraph one of the syllabus.
This includes the representations and actions of the individual exercising control
over the firearm, including implicit or explicit threats. Id. at 383; State v. Obsaint,
1st Dist. Hamilton No. C-060629, 2007-Ohio-2661, ¶ 19.
{¶8} Other evidence showing indicia of operability include the actual gun
and bullets. See State v. Messer, 107 Ohio App.3d 51, 55, 667 N.E.2d 1022 (9th Dist.
1995); State v. Allah, 4th Dist. Gallia No. 14CA12, 2015-Ohio-5060, ¶ 11-13. At least
one court has found the circumstances sufficiently demonstrated a firearm’s
operability where the evidence showed the handgun was kept in a purse and the
owner had a concealed handgun license. State v. Staten, 10th Dist. Franklin No.
18AP-48, 2018-Ohio-4681, ¶ 13, appeal not allowed, 154 Ohio St.3d 1512, 2019-
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OHIO FIRST DISTRICT COURT OF APPEALS
Ohio-601, 116 N.E.3d 1290. Ultimately, proof of operability “is not dependent on an
empirical analysis of the gun.” State v. Murphy, 49 Ohio St.3d 206, 209, 551 N.E.2d
932 (1990); Allah at ¶ 13.
{¶9} Here, two witnesses testified at trial—Springfield Township Police
Officer Chad McGuffey for the state, and Pope for his defense. Officer McGuffey
testified that when he confronted Pope during a traffic stop, Pope rolled down his
window and immediately said he had a “gun” in his pocket. Officer McGuffey
observed a strong odor of marijuana and asked Pope to exit from the vehicle. Pope
exited from the car and subsequently told the officer he had a concealed-carry license
for the gun but, according to Officer McGuffey, Pope disregarded the officer’s orders
to place his hands behind his back, complying only after he was threatened with a
Taser.
{¶10} Officer McGuffey then removed from Pope’s right pants pocket a
Springfield XD, .45-caliber handgun that had a bullet inside the chamber and a fully
loaded, 14-round, magazine. Officer McGuffey did not testify that he had test-fired
the weapon, nor was he specifically asked about the operability of the gun, and the
actual gun was not offered into evidence. But the officer did say he had confirmed
Pope’s representation that he had a concealed-carry license, and a photograph
Officer McGuffey had taken of the gun was offered and admitted into evidence.
{¶11} After the state rested, Pope took the stand and admitted on cross-
examination that the gun was “operable” and that he carried the gun fully loaded
with “a round in the chamber because you might not always have time to cock your
weapon.”
{¶12} Upon our review of the record, we conclude that Officer McGuffey’s
testimony, alone, provided sufficient circumstantial evidence that the handgun was
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OHIO FIRST DISTRICT COURT OF APPEALS
capable of firing a round and, thus, was operable. Although this case does not
involve implicit or explicit threats by Pope, Pope told the officer he had a “gun” and
that he had a license to carry it concealed, both statements suggesting that it was a
real gun capable of firing a round. Moreover, the officer stated he had found the gun
in Pope’s pants pocket, described the make and model of it, noted that there was a
bullet in the chamber and a fully loaded magazine, and provided a photograph of the
gun and the bullets to bolster his testimony. The facts presented fall within the line
of cases finding sufficient evidence of operability based on circumstantial evidence.
Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541; Murphy, 49 Ohio St.3d 206, 551
N.E.2d 93; Messer, 107 Ohio App.3d at 55, 677 N.E.2d 1022; Staten, 10th Dist.
Franklin No. 18AP-48, 2018-Ohio-4681, at ¶ 13; Allah, 4th Dist. Gallia No. 14CA12,
2015-Ohio-5060, at ¶ 11-13.
{¶13} Pope’s subsequent testimony admitting that the gun was operable and
that he kept it in his pocket ready to fire removed all doubt of the firearm’s
operability. Pope’s conviction, therefore, is based on more than sufficient evidence.
Conclusion
{¶14} The operability of a firearm may be established by circumstantial
evidence, including evidence that the owner kept the firearm, a fully loaded handgun,
in his pants pocket and had a license to carry it concealed. Because the record
contains sufficient evidence of guilt, we overrule the assignment of error, and affirm
the trial court’s judgment.
Judgment affirmed.
Z AYAS , P.J., and C ROUSE , J., concur.
Please note:
The court has recorded its own entry this date.
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