dissenting. I seldom find myself in dissent against the position of the state in the interpretation of the criminal law, but in this case I believe the interpretation of R.C. 2929.71 as given here by the majority goes beyond the original legislative intent of such section.
The basic intent of R.C. 2929.71 is the prevention of felonies committed while a person is armed with a firearm.1 The section is applicable whether the felony is committed while the defendant is actually using the firearm, or merely has the firearm in his possession in order to facilitate or aid in the commission of the felony.
It is my position that the stealing of a firearm, as one of the items taken during the commission of an aggravated burglary, and the bare possession of such as one of the stolen items, do not constitute possession for purposes of applying the firearm specification of R.C. 2929.71 and its three-year enhancement of sentence. If, however, the facts would show that the stolen firearm had been used to further the burglary, then the firearm *65specification could be applied. Such were not the facts shown here.
The General Assembly has provided for the law that should be applied, in cases similar to the one at bar, where a theft of a firearm occurs. R.C. 2913.02(B) provides for an enhanced penalty and degree of felony for a theft of a firearm. This section refers to R.C. 2913.71(C), which provides for certain aggravating circumstances, such as theft of a firearm, where the offense will become a felony of the fourth degree regardless of the value of the property taken.2
It appears to me that the correct interpretation of these criminal statutes would be to apply R.C. 2913.02(B), the specific statute providing for the enhanced penalty for a theft of a firearm, which would support the facts here, rather than the general statute, R.C. 2929.71(A), which provides for an enhancement for having a firearm in one’s possession when such firearm is not utilized in the underlying felony, but merely a product of such felony through theft.
Sweeney, J., concurs in the foregoing dissenting opinion.In tracing the roots of R.C. 2929.71, as it presently exists, it is interesting to note that the Legislative Service Commission’s Bill Analyses have consistently referred to the “use” of the firearm in the commission of the underlying felony. Specifically, the Legislative Service Commission Bill Analysis on Am. S.B. No. 210 (115th General Assembly), as Reported by House Judiciary & Criminal Justice, states:
“The effect of the change may not be radical since a three-year term of actual incarceration for carrying a firearm could still be imposed on the five offenses that have elements involving the use of firearms * * (Emphasis added.) Id. at 6. See, also, Legislative Service Commission Bill Analyses on Am. S.B. No. 210, As Reported by Senate Judiciary, and As Passed by the Senate.
I would interpret “use” to mean that either the defendant actually used the firearm in the commission of a felony, or he or she had possession of the firearm in order to facilitate the commission of the felony.
R.C. 2913.71 provides in pertinent part:
“Regardless of the value of the property involved, and regardless of whether the offender has previously been convicted of a theft offense, a violation of section 2913.02 or 2913.51 of the Revised Code is a felony of the fourth degree if the property involved is any of the following:
<<* * *
“(C) A firearm or dangerous ordnance, as defined in section 2923.11 of the Revised Code.”