[Cite as State v. Ihinger, 2019-Ohio-1881.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :      JUDGES:
                                              :      Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                    :      Hon. Patricia A. Delaney, J.
                                              :      Hon. Earle E. Wise, Jr., J.
-vs-                                          :
                                              :
TIMOTHY J. IHINGER                            :      Case No. CT2018-0040
                                              :
        Defendant-Appellant                   :      OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. CR2017-0267




JUDGMENT:                                            Reversed and Remanded




DATE OF JUDGMENT:                                    May 13, 2019




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

TAYLOR P. BENNINGTON                                 MARLEY C. NELSON
27 North Fifth Street                                250 East Broad Street
P.O. Box 189                                         Suite 1400
Zanesville, OH 43702                                 Columbus, OH 43215
Muskingum County, Case No. CT2018-0040                                                    2



Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Timothy J. Ihinger, appeals his December 5, 2017

convictions in the Court of Common Pleas of Muskingum County, Ohio, for theft of a

firearm. Plaintiff-Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On August 2, 2017, the Muskingum County Grand Jury indicted appellant

on one count of burglary with a firearm specification in violation of R.C. 2911.12 and

2941.141, and four counts of theft of a firearm in violation of R.C. 2913.02. Said charges

arose from the theft of firearms from the home of Gregory Smith.

       {¶ 3} A jury trial commenced on October 30, 2017. At the close of the state's

case, appellant made a motion for acquittal under Crim.R. 29. The trial court denied the

motion. The jury found appellant guilty as charged. However, the jury's finding on the

firearm specification did not conform to the verdict form instructions; therefore, the trial

court was unable to find appellant guilty of the specification. By entry filed December 5,

2017, the trial court sentenced appellant to two years on the burglary conviction and nine

months on each of the four theft convictions, to be served consecutively for an aggregate

term of five years in prison.

       {¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                              I

       {¶ 5} "THE TRIAL COURT ERRED IN DENYING TIMOTHY IHINGER'S CRIM.R.

29 MOTION FOR JUDGMENT OF ACQUITTAL AND VIOLATED HIS RIGHTS TO DUE

PROCESS AND A FAIR TRIAL WHEN IN THE ABSENCE OF SUFFICIENT EVIDENCE,
Muskingum County, Case No. CT2018-0040                                                     3


IT ALLOWED THE JURY TO DELIBERATE ON THE THEFT OF FIREARMS

CHARGES."

                                              I

       {¶ 6} In his sole assignment of error, appellant claims the trial court erred in

denying his Crim.R. 29 motion for judgment of acquittal because sufficient evidence was

not presented to prove the stolen firearms were "firearms" as defined in R.C.

2923.1(B)(1). We disagree that the trial court erred in denying the motion, but find

insufficient evidence to elevate the theft offenses to felonies of the third degree.

       {¶ 7} Appellant is not contesting the fact that thefts of firearms occurred and he

was involved in said thefts. What he is contesting is the fact that appellee "produced

absolutely no evidence that the stolen items were firearms as defined in R.C.

2923.11(B)(1)." Appellant's Brief at 9. Because the substance of appellant's argument

has to do with insufficient evidence to prove the statutory definition of "firearms," we will

review this assignment of error under a sufficiency of the evidence standard.

       {¶ 8} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The relevant inquiry is whether,

after viewing the evidence in a 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." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

       {¶ 9} Appellant was convicted of four counts of theft of a firearm in violation of

R.C. 2913.02(A)(1) which states: "No person, with purpose to deprive the owner of
Muskingum County, Case No. CT2018-0040                                                   4


property or services, shall knowingly obtain or exert control over either the property or

services in any of the following ways: Without the consent of the owner or person

authorized to give consent." A violation of this section is petty theft, a misdemeanor of

the first degree. R.C. 2913.02(B)(2). However, subsection (B)(4) elevates the crime of

theft to a felony of the third degree when the stolen property is a firearm:



              If the property stolen is a firearm or dangerous ordnance, a violation

       of this section is grand theft. Except as otherwise provided in this division,

       grand theft when the property stolen is a firearm or dangerous ordnance is

       a felony of the third degree, and there is a presumption in favor of the court

       imposing a prison term for the offense. * * * The offender shall serve a prison

       term imposed for grand theft when the property stolen is a firearm or

       dangerous ordnance consecutively to any other prison term or mandatory

       prison term previously or subsequently imposed upon the offender.



       {¶ 10} Pursuant to R.C. 2913.01(EE), the definition of a "firearm" for R.C. Chapter

2913. offenses has the same meaning as in R.C. 2923.11. R.C. 2923.11(B) defines a

firearm as follows:



              (B)(1) "Firearm" means any deadly weapon capable of expelling or

       propelling one or more projectiles by the action of an explosive or

       combustible propellant. "Firearm" includes an unloaded firearm, and any

       firearm that is inoperable but that can readily be rendered operable.
Muskingum County, Case No. CT2018-0040                                                    5


              (2) When determining whether a firearm is capable of expelling or

       propelling one or more projectiles by the action of an explosive or

       combustible propellant, the trier of fact may rely upon circumstantial

       evidence, including, but not limited to, the representations and actions of

       the individual exercising control over the firearm.



       {¶ 11} During the trial, Gene Smith, the victim's brother, testified to witnessing an

individual exit the victim's home "with an armload of guns and a case - - in cases and put

them in the vehicle." T. at 162. Waylon Smith, the victim's nephew, testified to observing

an individual "running out of the house, jumped into the car, had four guns, gun cases in

their arms." T. at 180. The victim, Gregory Smith, testified he was missing four guns

from underneath his bed, a muzzleloader (Thompson/Center Pro Hunter, 50-caliber

stainless steel), a 12-gauge (an over-under Ducks Unlimited Smith & Wesson), a 12-

gauge automatic (1952 High Back A-5 Browning), and a 12-gauge pump (Benelli Nova,

synthetic stock, brand new, never shot). T. at 196-198. Three of the firearms were in soft

cases, and one was in a hard case which was left behind. T. at 209. The firearms were

underneath his bed because his gun safe "is in the basement and has a tendency to

condensate down there, and these ones I did not want to have surface rust put on them,

so I put them in cases and put them underneath the bed." T. at 198. These firearms

were special to him and were valuable to him. Id. This was essentially the extent of the

testimony related to the firearms.

       {¶ 12} The guns in question were never recovered; therefore, they were not

admitted into evidence. T. at 206. There was no testimony as to whether the firearms
Muskingum County, Case No. CT2018-0040                                                   6


were loaded or unloaded, or what the guns were used for or whether they had ever been

fired (except for the Benelli which the victim stated had never been fired). The victim

could have possessed the firearms as "collector's item[s] or some other nonfunctional

purpose." State v. Cosma, 4th Dist. Washington No. 06CA21, 2007-Ohio-5561, ¶ 19.

"Further, while the names of the weapons were mentioned at trial, merely naming the

weapons has been held to be insufficient to demonstrate operability." State v. Johnson,

9th Dist. Lorain No. 14CA010688, 2016-Ohio-872, ¶ 13, citing State v. Henry, 4th Dist.

Gallia No. 10CA20, 2012-Ohio-371, ¶ 18. There was no evidence that appellant or

anyone made any implicit or explicit threats with the firearms.           There was no

circumstantial evidence to suggest the stolen firearms were operable or capable of readily

being rendered operable.

       {¶ 13} Even in viewing the evidence in a light most favorable to the prosecution,

we find appellee failed to present sufficient evidence that the stolen firearms met the

definition of "firearms" under R.C. 2923.11(B)(1). As noted by appellant in his appellate

brief at 8-9, citing Henry, supra, the appropriate remedy is to reduce the degree of the

offense and remand the matter to the trial court for resentencing.

       {¶ 14} Upon review, we find sufficient evidence was not presented to find appellant

guilty of third-degree felony theft of a firearm. Therefore, for Counts 2, 3, 4, and 5, the

trial court is to enter convictions for misdemeanor petty theft under R.C. 2913.02(B)(2),

and resentence appellant accordingly.

       {¶ 15} The sole assignment of error is granted as to elevating the theft offenses to

felonies of the third degree.
Muskingum County, Case No. CT2018-0040                                                7


      {¶ 16} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby reversed as to Counts 2, 3, 4, and 5, and the matter is remanded to said court

for further proceedings as directed.

By Wise, Earle, J.

Hoffman, P.J. and

Delaney, J. concur.




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