[Cite as State v. Swidas, 133 Ohio St.3d 460, 2012-Ohio-4638.]




             THE STATE OF OHIO, APPELLEE, v. SWIDAS, APPELLANT.
         [Cite as State v. Swidas, 133 Ohio St.3d 460, 2012-Ohio-4638.]
Criminal law—R.C. 2941.146—Firearm specification—Discharging a firearm
        from a motor vehicle—No substantial physical connection with the motor
        vehicle.
 (No. 2011-0244—Submitted November 16, 2011—Decided October 11, 2012.)
                 APPEAL from the Court of Appeals for Lake County,
                           No. 2009-L-104, 2010-Ohio-6436.
                                  _________________
        PFEIFER, J.
        {¶ 1} R.C. 2941.146(A) contains a firearm specification that adds a five-
year prison term when a defendant commits a felony that includes the element of
purposely or knowingly causing or attempting to cause the death of or physical
harm to another, if the crime “was committed by discharging a firearm from a
motor vehicle other than a manufactured home.” In this case, we hold that R.C.
2941.146 is not applicable when a person fires a weapon while standing
completely outside a motor vehicle.
                        Factual and Procedural Background
        {¶ 2} Defendant-appellant, Michael Swidas, shot Ulysses “Cory”
Altizer. Of that there is no doubt. Swidas claimed that he shot Altizer in self-
defense. A jury found that he did not. The issue we consider today focuses only
on Swidas’s location when he fired his weapon. Where he was when he fired the
gun makes a significant difference: R.C. 2941.146 states that if he fired the shots
“from a motor vehicle,” he is subject to a mandatory, five-year prison term. But
what does “from a motor vehicle” mean?
                              SUPREME COURT OF OHIO




                                     The Shooting
        {¶ 3} Swidas and Altizer had a history of physical confrontations before
the night in question. Altizer and Joe Naples were already at Horvath’s Pub when
Swidas arrived. Altizer first noticed Swidas that night when Altizer went to use
the restroom. The two exchanged brief unpleasantries (Altizer: “Hey Sweets,
how you doin’?” Swidas: “Better than you”). By the time Altizer emerged from
the restroom, Swidas had left the bar. Some time later—Swidas and Altizer differ
on how long—Altizer and Naples left, too.
        {¶ 4} Swidas’s car, a Buick Park Avenue, was backed into a parking
space facing Horvath’s. The spaces were angled. Swidas testified that he heard
Altizer and Naples approaching him when he was opening the driver’s door of his
car. He testified that they were charging at him and that he thought they were
going to try to attack him and rob him. He reached for the gun he had under the
driver’s seat, grabbed it, and started firing. Swidas testified that when he fired his
gun, the open car door was between him and Altizer. Altizer was in front of and
to the right of Swidas’s vehicle. Swidas fired five shots; Altizer was hit once, in
the hand, damaging a finger. After firing, Swidas jumped into his car and drove
off. Witness testimony differed as to whether the car was running at the time of
the shooting; at the very least, its lights were on.
        {¶ 5} Altizer corroborated Swidas’s testimony about Swidas’s position
near the car at the time of the shooting. He described Swidas as being on the
driver’s side of the car behind the open door—“between the door and the vehicle,
like it—say, like it was a shield.” In relation to the door, he described Swidas as
being “like in the corner” where the hinges are. As for Swidas’s posture, Altizer
testified, “He was over the windshield of the car a little bit, and pointing a gun at
me, shooting.”




                                           2
                                January Term, 2012




                                       The Trial
       {¶ 6} Swidas’s counsel moved to dismiss the specification at issue at the
conclusion of the testimony. He argued that the evidence showed that Swidas was
standing outside the vehicle when he fired the shots and that under R.C. 2941.146,
the specification was not applicable if Swidas was not inside the car.
Alternatively, he argued that if the statute is not interpreted to require the offender
to be inside the car, it is unconstitutional because it bears “no rational relationship
to any legitimate State purpose.” The court denied the motion to dismiss.


               “From a motor vehicle” is an easily determined standard.
       Anybody knows whether something is “from a motor vehicle[.]”
       * * * The legislature certainly knows the words. If they intended
       the motor vehicle to be in motion, or if they intended the shooter to
       be occupying the motor vehicle, or in or upon the motor vehicle,
       the legislature could have written it that way. * * * So, I believe
       that since the language is clear and unambiguous, and the facts in
       this case are that the vehicle was unlocked, the door was open, the
       weapon was retrieved from inside the vehicle, * * * the defendant
       stood in the well between the open door and the body of the car.
       Some testimony is, the vehicle was running. * * * The defendant
       left in it within a matter of seconds. So, the Court overrules the
       defendant’s objection to the constitutionality of that statute or its
       inclusion here under the facts of this case.


       {¶ 7} The case went to a jury. The trial court’s jury instruction regarding
the specification was not expansive:




                                           3
                              SUPREME COURT OF OHIO




       [Y]ou will also separately decide whether, beyond a reasonable
       doubt, the defendant, as an essential element of the offense,
       purposely or knowingly caused or attempted to cause the death of
       or physical harm to another and that was committed by discharging
       a firearm from a motor vehicle.


       {¶ 8} The prosecution made it clear to the jury in closing argument that
Swidas did not have to be in the vehicle for the specification to apply:


               And     then   the   second    specification   addresses    the
       discharging of a firearm from a motor vehicle. And I’m sorry; you
       can [sic] eliminate this language. But it means that he discharged
       it from a motor vehicle. Not in a motor vehicle or while in a motor
       vehicle. From.


       {¶ 9} The jury acquitted Swidas on the charge of attempted murder but
convicted him on two counts of felonious assault with two firearm specifications
each, including the specification set forth in R.C. 2941.146.          The jury also
convicted Swidas of tampering with evidence and carrying a concealed weapon.
The trial court sentenced appellant to 22 years’ imprisonment, which included the
mandatory five-year term under R.C. 2941.146.
                                     The Appeal
       {¶ 10} Swidas appealed his convictions. Two of his propositions of law
addressed R.C. 2941.146: Swidas argued to the appellate court that the trial court
should have held that R.C. 2941.146 was unconstitutionally vague as applied to
him and that the statute violated his constitutional right to equal protection.
       {¶ 11} The appellate court rejected Swidas’s vagueness argument, holding
that “[t]he statute is plain on its face—all that is required for the enhancement is




                                          4
                                January Term, 2012




that the firearm is discharged ‘from a motor vehicle.’ The term ‘drive-by’ does
not appear in the statute nor does the statute require the vehicle to be the starting
point of the shooting.” State v. Swidas, 11th Dist. No. 2009-L-104, 2010-Ohio-
6436, 2010 WL 5550223, ¶ 21.
       {¶ 12} And the court held that R.C. 2941.146 covered Swidas’s conduct
since the statute did not limit its application to persons who are engaged in
proscribed activity inside a motor vehicle:


               Under the facts of the instant case, it was appropriate to
       allow the jury to consider whether appellant was subject to the
       firearm specification of R.C. 2941.146.         Here, the evidence
       introduced at trial reveals that appellant's vehicle was running, the
       headlights were on to illuminate where the victims were located,
       the driver's door was open, and appellant was standing within the
       framed area of the door and the vehicle, leaning on the vehicle as
       he discharged his weapon.
               If there is evidence that the discharge of the firearm
       occurred when the defendant was in physical contact with the
       vehicle and used the vehicle to facilitate the discharge of the
       firearm, then it is appropriate to instruct the jury on the
       specification contained in R.C. 2941.146. The statute clearly gives
       great weight to the mobile nature of the vehicle. If the legislature
       wanted to limit the application of the specification to
       circumstances where the defendant was “within” or “while riding
       in” the motor vehicle, it could have easily done so. The term
       “from” encompasses a much broader range of activity.




                                         5
                            SUPREME COURT OF OHIO




Id., ¶ 26-27. The court also rejected Swidas’s equal-protection argument. Id.,
¶ 33.
        {¶ 13} The matter is before this court upon the acceptance of a
discretionary appeal.
                               Law and Analysis
        {¶ 14} We accepted only one of Swidas’s proposed assignments of error:
“R.C. 2941.146 is unconstitutionally vague as applied to a defendant who
discharges a firearm while standing outside a motor vehicle.” However, since we
do not need to determine the constitutionality of R.C. 2941.146 to resolve this
case, we will not; “when a case can be decided on other than a constitutional
basis, we are bound to do so.” State ex rel. Crabtree v. Ohio Bur. of Workers’
Comp., 71 Ohio St.3d 504, 507, 644 N.E.2d 361 (1994). We hold in this case
simply that R.C. 2941.146 is not applicable when a defendant is standing outside
his vehicle.
                                 R.C. 2941.146
        {¶ 15} R.C. 2941.146 describes a firearm specification that imposes a
mandatory five-year prison term on a defendant who commits a felony that
includes as an element “purposefully or knowingly causing or attempting to cause
* * * physical harm to another,” when the crime was committed by firing a
weapon from a motor vehicle.


               (A) Imposition of a mandatory five-year prison term upon
        an offender * * * for committing a felony that includes, as an
        essential element, purposely or knowingly causing or attempting to
        cause the death of or physical harm to another and that was
        committed by discharging a firearm from a motor vehicle other
        than a manufactured home is precluded unless the indictment,
        count in the indictment, or information charging the offender




                                        6
                               January Term, 2012




       specifies that the offender committed the offense by discharging a
       firearm from a motor vehicle other than a manufactured home.


       {¶ 16} The crux of this case is determining what the word “from” means
in the phrase “from a motor vehicle.” The court of appeals stated that R.C.
2941.146 is not limited to “drive-by” shootings. But does it apply to a “stand-by”
shooting?
                                 Common Usage
       {¶ 17} R.C. 1.42 states that for purposes of statutory construction,
“[w]ords and phrases shall be read in context and construed according to the rules
of grammar and common usage.”


              In accordance with that statutory mandate, we have held
       repeatedly that “[i]n the absence of a specific statutory definition,
       words used in a statute must be interpreted in their usual, normal,
       or customary meaning.” State ex rel. Brenders v. Hall (1995), 71
       Ohio St.3d 632, 634, 646 N.E.2d 822; State ex rel. Cassels v.
       Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217,
       220, 631 N.E.2d 150.


State v. Everette, 129 Ohio St.3d 317, 2011-Ohio-2856, 951 N.E.2d 1018, ¶ 16.
       {¶ 18} The Revised Code defines “motor vehicle” (R.C. 4501.01) and
“firearm” (R.C. 2923.11), but it should be no surprise that it does not define
“from.” Dictionaries do. Webster’s Third New International Dictionary 913
(1986) defines “from”:




                                        7
                              SUPREME COURT OF OHIO




        [U]sed as a function word to indicate a starting point: as (1) a point
        or place where an actual physical movement (as of departure,
        withdrawal, or dropping) has its beginning * * *.


        {¶ 19} The Oxford English Dictionary 210-211 (2d Ed.1989) also
defines “from”: “Denoting departure or moving away: governing a [substantive]
which indicates a point of departure or place whence motion takes place.”
        {¶ 20} Both definitions refer to a “point” or “place” whence something
departs. In the statute, that point or place is “a motor vehicle.” That place is not
“the vicinity of a motor vehicle” or “near a motor vehicle.” The statute requires
that the starting point of the activity is the motor vehicle itself.
        {¶ 21} But a motor vehicle cannot fire a weapon; the statute applies to
people. That does not obviate the statutory requirement that the locus of the
discharge of the weapon is the motor vehicle itself. For the locus of the discharge
to be the motor vehicle, then, the person discharging the weapon must have a
substantial physical connection to the vehicle. If a person were in or on a vehicle
to the extent that the vehicle was providing substantial support to the person, the
locus of that person’s firing of the weapon would be the motor vehicle. Without a
substantial physical connection to the vehicle, a shooter cannot be said to have
fired a shot that commenced from the motor vehicle.
                                  Swidas’s Location
        {¶ 22} Our parsing of prepositions continues in determining whether
Swidas had a substantial physical connection to the motor vehicle when he shot
Altizer; the key to this analysis is the victim’s use of the word “over.” Altizer
testified, “He was over the windshield of the car a little bit, pointing a gun at me,
shooting.” He did not testify that any part of Swidas was on the vehicle. The
appellate court incorrectly stated that Swidas was “leaning on the vehicle as he
discharged his weapon.” The state cites nothing in the record that supports the




                                            8
                                January Term, 2012




appellate court’s statement; no testimony even suggests that Swidas was on the
car.
       {¶ 23} Indeed, the state does not rely on physical contact to make its case;
instead, it basically argues that the vehicle was the instrumentality, the sine qua
non, of the crime. That is the same reasoning that the trial court used in denying
Swidas’s motion to dismiss the R.C. 2941.146 specification. The state argues that
the vehicle was “the starting point from which Appellant staged his attack,” that it
was “the origin from which Appellant retrieved his gun,” that it provided
“protection and concealment” for Swidas, and that it was the means by which
Swidas “was able to make a rapid escape from the crime scene.” All those
statements are true, all supported by testimony, but none are relevant to R.C.
2941.146. The key to a violation under R.C. 2941.146 is the location of the
shooter at the time of the shooting. In this case, there is no evidence suggesting
that Swidas had even incidental contact with the vehicle when he fired his
weapon. The “from” in this case is a spot next to the motor vehicle.
                                   Rule of Lenity
       {¶ 24} To hold, as the state requests, that “from” includes the penumbra
of a motor vehicle would first require a holding that the statute is ambiguous, that
“from a motor vehicle” includes more than the physical confines of the motor
vehicle itself. But R.C. 2901.04(A) states that “sections of the Revised Code
defining offenses or penalties shall be strictly construed against the state, and
liberally construed in favor of the accused.” R.C. 2901.04 is a codification of the
“rule of lenity”: “[u]nder the rule, ambiguity in a criminal statute is construed
strictly so as to apply the statute only to conduct that is clearly proscribed. United
States v. Lanier (1997), 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432.”
State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 38.
Strictly construing the statute in favor of the accused limits the reach of the statute
to persons shooting a firearm from the vehicle itself, not from nearby. The only



                                          9
                             SUPREME COURT OF OHIO




conduct that is clearly proscribed by the statute is discharging a firearm while the
person firing the weapon is in or on a motor vehicle.
       {¶ 25} The state of Washington, in its definition of a drive-by shooting,
provides an example of a statute that does clearly proscribe firing weapons from
the vicinity of a motor vehicle:


                A person is guilty of drive-by shooting when he or she
       recklessly discharges a firearm as defined in [Wash.Rev.Code]
       9.41.010 in a manner which creates a substantial risk of death or
       serious physical injury to another person and the discharge is either
       from a motor vehicle or from the immediate area of a motor
       vehicle that was used to transport the shooter or the firearm, or
       both, to the scene of the discharge.


Wash.Rev.Code 9A.36.045(1). R.C. 2941.146, on the other hand, simply does
not apply when a shooter discharges his weapon “from the immediate area of a
motor vehicle.”
                                   Conclusion
       {¶ 26} Since we conclude that R.C. 2941.146 is not applicable when a
defendant fires a weapon while standing with both feet planted on the ground with
no substantial physical connection with a motor vehicle, we reverse the decision
of the court of appeals, vacate the appellant’s sentence on the firearm
specification under R.C. 2941.146, and remand the matter to the trial court for
resentencing.
                                                                Judgment reversed
                                                              and cause remanded.
       O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, LANZINGER,
CUPP, and MCGEE BROWN, JJ., concur.




                                        10
                              January Term, 2012




                            __________________
       Charles E. Coulson, Lake County Prosecuting Attorney, and Patrick J.
Condon and Alana A. Rezaee, Assistant Prosecuting Attorneys, for appellee.
       Morganstern, MacAdams & DeVito Co., L.P.A., and Michael A. Partlow,
for appellant.
                          ______________________




                                      11
