State v. Hicks

Grady, Judge,

concurring.

{¶ 15} A person is not criminally liable unless he engaged in conduct prohibited by a section of the Revised Code, and “[t]he person has the requisite degree of culpability for each element as to which a culpable mental state is specified by the section defining the offense.” R.C. 2901.21(A)(1) and (2). The burden of proof beyond a reasonable doubt regarding both matters is on the prosecution. R.C. 2901.05(A).

{¶ 16} The culpable mental state required for a violation of R.C. 2923.24(A) is a purpose to use an article in the defendant’s possession “criminally.” “A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.”

{¶ 17} R.C. 2923.24(B)(l)-(3) identifies three matters which, when proved, constitute prima facie evidence of the criminal purpose required by R.C. 2923.24(A). Prima facie evidence means evidence which is sufficient to establish a fact, unless rebutted, and that standing alone and unexplained would support the conclusion for which it is introduced. 42 Ohio Jurisprudence 3d, Evidence and Witnesses, Sections 5, 86.

{¶ 18} The 1973 Legislative Service Commission comment to R.C. 2923.24 regarding paragraph (B) of that section states: “To aid enforcement, the section spells out the evidence establishing prima-facie violations involving items having a high liability for criminal use. Each prima-facie case is, of course, rebuttable, and is based on evidence from which a criminal purpose in possessing certain items can reasonably be inferred.”

{¶ 19} In order to rely on R.C. 2923.24(B)(l)-(3) to prove a violation of R.C. 2923.24(A), the state has the burden to offer some evidence that demonstrates the criminal nature or character of the article or articles possessed. Otherwise, there is nothing for the accused to rebut, and requiring the defendant then to do that is an improper transfer of the burden of proof. Furthermore, any finding the court then makes in accordance with R.C. 2923.24(B) is necessarily intuitive, instead of one based on evidence that satisfies the burdens of proof that section imposes.

*534{¶ 20} The state offered no evidence demonstrating the criminal nature or character of the articles in the bag defendant carried. Therefore, I do not find that R.C. 2923.24(B) is satisfied. I would nevertheless affirm defendant’s conviction and sentence for a violation of R.C. 2923.24(A) on a finding that the totality of the evidence presented was sufficient to prove, beyond a reasonable doubt, that defendant possessed the articles in the white bag he carried with a purpose to use one or more of them criminally, for the reasons the majority opinion explains.