State v. Jones (Slip Opinion) , 2021 Ohio 3311 ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Jones, Slip Opinion No. 2021-Ohio-3311.]
NOTICE
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promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2021-OHIO-3311THE STATE OF OHIO, APPELLANT, v. JONES, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Jones, Slip Opinion No. 2021-Ohio-3311.]
Criminal law—Aggravated murder—Court of appeals reversed conviction on
ground that the evidence was not sufficient to show that defendant acted
with prior calculation and design—Judgment reversed.
(No. 2020-0368—Submitted March 31, 2021—Decided September 23, 2021.)
APPEAL from the Court of Appeals for Hamilton County,
No. C-170647, 2020-Ohio-281.
_________________
DEWINE, J., announcing the judgment of the court.
{¶ 1} Earl Jones shot and killed Kevin Neri. Finding that Jones acted with
prior calculation and design, a jury convicted Jones of aggravated murder under
R.C. 2903.01(A). The court of appeals reviewed the evidence, drew its own
inferences therefrom, and concluded that the evidence was insufficient to show that
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Jones acted with prior calculation and design. As a result, it reversed the
aggravated-murder conviction and discharged Jones from further prosecution for
that crime.
{¶ 2} The court of appeals erred. In reviewing whether evidence is
sufficient to establish the prior-calculation-and-design element of aggravated
murder, a court must consider whether the evidence, when viewed in the light most
favorable to the prosecution, supports a finding that a defendant acted with advance
reasoning and purpose to kill. The court of appeals failed to properly apply this
standard and instead conducted its own weighing of the evidence. In this case, a
reasonable juror could properly find that Jones acted with prior calculation and
design. We reverse the court of appeals’ judgment to the contrary.
I. Background
A. An ongoing feud culminates in a deadly shooting
{¶ 3} Earl Jones and Kevin Neri didn’t much like each other. The link
connecting the two men was Cyerra Prather. Jones had fathered a child with
Prather, but their relationship did not last. Prather eventually began dating Neri,
who moved into her home.
{¶ 4} To call the relationship between Neri and Jones combative would be
to put it mildly. Jones harassed Neri through text messages and social media, often
using racial epithets. And Neri gave as good as he got, including taunting Jones by
claiming to be a better father. The two men would argue when Jones came to
Prather’s house to pick up or drop off their child. More than once, Prather’s
neighbors reported the disturbance to the police. The situation became so fraught
that Prather and her family tried to minimize the contact between the two men,
arranging for Neri to be out of the house when Jones came to pick up the child or
ensuring the exchanges went as quickly as possible. The two men also developed
a habit of regularly scheduling fistfights—often at a time and location away from
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Prather’s home. But the fights amounted to nothing: Neri would wait at the agreed-
upon location and Jones would never show.
{¶ 5} The simmering animosity boiled over on the day of the shooting. That
morning, Jones arranged to pick up his child the next day for visitation. And Neri,
on learning Jones’s intentions, scheduled yet another fight. Jones later changed his
plans, and it was agreed that he would pick up the child at 8:00 p.m. that night rather
than the next afternoon. He then texted Neri to ask if he would be there that
evening. Neri replied that he would be there and the two men agreed to meet at an
intersection six houses away from Prather’s home.
{¶ 6} Jones drove to Prather’s house and parked his car on the wrong side
of the street in a no-parking zone immediately in front of the house. Jones pocketed
a loaded gun as he got out of the car, leaving the engine running and the driver’s-
side door open. Neri was standing on the house’s front porch when Jones arrived.
The two men began walking toward each other and Neri took off his sweatshirt as
he approached. Jones immediately pulled out his gun and shot Neri. Neri tried to
flee but Jones fired two more shots as he was running, ultimately bringing Neri to
the ground. After shooting Neri, Jones drove to the Hamilton County Sheriff’s
Department, where he turned himself in. Meanwhile, paramedics transported Neri
to the hospital, where he died.
{¶ 7} Jones was indicted on charges of aggravated murder, murder, felony
murder—each with specifications—and carrying a concealed weapon. At trial,
Jones claimed that he shot Neri in self-defense, but the jury was unpersuaded and
found Jones guilty on all counts in the indictment.
B. The court of appeals reverses Jones’s aggravated-murder conviction
and discharges him from prosecution on that count
{¶ 8} Jones appealed to the First District Court of Appeals, raising a number
of assignments of error. Relevant to our analysis here, Jones argued that his
conviction for aggravated murder was not supported by sufficient evidence,
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because the evidence adduced at trial did not prove that he had acted with prior
calculation and design. 2020-Ohio-281, 151 N.E.3d 1059, ¶ 9. A majority of the
appellate panel agreed, finding that the evidence showed that Jones purposely killed
Neri but did not establish that Jones did so after engaging “in a studied
consideration of the method, means, or location of the killing.” Id. at ¶ 16.
{¶ 9} In reaching its decision, the court of appeals assessed the evidence
using the three guideposts for examining prior calculation and design that this court
set out in State v. Taylor, 78 Ohio St.3d 15, 19, 676 N.E.2d 82 (1997). The Taylor
framework asks: “(1) Did the accused and victim know each other, and if so, was
that relationship strained? (2) Did the accused give thought or preparation to
choosing the murder weapon or murder site? and (3) Was the act drawn out or ‘an
almost instantaneous eruption of events’?” Id., quoting State v. Jenkins, 48 Ohio
App.2d 99, 102, 355 N.E.2d 825 (8th Dist.1976).
{¶ 10} Although the court of appeals found that Jones and Neri had a
strained relationship, 2020-Ohio-281, 151 N.E.3d 1059, at ¶ 14, it concluded that
the remaining evidence did not support a finding of prior calculation and design
under Taylor. First, it determined the text messages between Jones and Neri
showed that the men had planned to meet for a fistfight away from Prather’s home
when Jones was scheduled to pick up his child. Thus, Jones did not expect Neri to
be present when he arrived at Prather’s home and it “defie[d] logic” for the jury to
find that Jones planned to kill Neri at that location “with witnesses around and his
child present.” Id. at ¶ 21. Second, the court of appeals construed Jones’s choice
to pocket his loaded firearm as he left his vehicle as indicating only “instantaneous
deliberation” and not a design to kill Neri. Id. at ¶ 23. It rationalized this conclusion
by noting that Jones frequently carried a weapon and had once had a gun stolen
from his car. Id. Third, the court reasoned a jury could not infer prior calculation
and design from the evidence establishing that Jones arrived at Prather’s house,
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shot Neri, and drove away to turn himself in, because the shooting took place in a
matter of minutes and showed only Jones’s anger in the moment. Id. at ¶ 24.
{¶ 11} As a result of this appraisal of the evidence, the First District
reversed Jones’s conviction for aggravated murder. Id. at ¶ 26, 81. Because the
double-jeopardy protection bars retrial when a conviction has been reversed for
insufficient evidence, see State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d
541 (1997), citing Tibbs v. Florida, 457 U.S. 31, 47, 102 S.Ct. 2211, 72 L.Ed.2d
652 (1982), the court of appeals discharged Jones from further prosecution on the
aggravated-murder count. Id. at ¶ 81.
{¶ 12} One judge wrote in dissent, reasoning that a rational trier of fact
could find that the evidence—when viewed in the light most favorable to the
prosecution—established that Jones acted with prior calculation and design. In
particular, Jones’s role in planning the fistfight, his decision to leave his car running
and the driver’s-side door open, and his choice to bring a firearm with him when
exiting his vehicle all supported the jury’s verdict. Id. at ¶ 83-90 (Bergeron, J.,
concurring in part and dissenting in part).
{¶ 13} As to the other assignments of error raised by Jones, the majority of
the appellate panel concluded that the trial court had made several evidentiary
errors and that those errors were not harmless. 2020-Ohio-281, 151 N.E.3d 1059,
at ¶ 28-58, 68-80. Consequently, it reversed Jones’s convictions for murder and
felony murder and remanded the case for a new trial on these counts. The court of
appeals affirmed Jones’s conviction for carrying a concealed weapon. Id. at ¶ 81.
{¶ 14} The state appealed the First District’s reversal of Jones’s aggravated-
murder conviction, and we accepted jurisdiction. 159 Ohio St.3d 1413, 2020-Ohio-
3275, 147 N.E.3d 655.
II. Analysis
{¶ 15} The state raises several propositions of law, all of which can be
distilled into a single question: did the state present evidence of prior calculation
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and design sufficient to support Jones’s conviction for aggravated murder under
R.C. 2903.01(A)? Reviewing the record and applying the appropriate standard of
review, we conclude that the state met its burden and that the First District erred in
reversing Jones’s aggravated-murder conviction.
A. Sufficiency of the evidence and prior calculation and design
{¶ 16} An appellate court’s task when reviewing whether sufficient
evidence supports a defendant’s conviction is well-settled and familiar. The
reviewing court asks 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.’ ” State v. McFarland, 162 Ohio
St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316, ¶ 24, quoting State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d (1991), paragraph two of the syllabus, superseded by
constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio
St.3d 89, 102, 684 N.E.2d 668 (1997), fn. 4. But it is worth remembering what is
not part of the court’s role when conducting a sufficiency review. It falls to the
trier of fact to “ ‘resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.’ ” McFarland at ¶ 24,
quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979). Thus, an appellate court’s role is limited. It does not ask whether the
evidence should be believed or assess the evidence’s “credibility or effect in
inducing belief.” State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84
N.E.3d 993, ¶ 13, citing Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541. Instead,
it asks whether the evidence against a defendant, if believed, supports the
conviction. Thompkins at 390 (Cook, J., concurring).
{¶ 17} Here, the state charged Jones with aggravated murder under R.C.
2903.01(A), which requires the state to prove Jones caused Neri’s death “purposely,
and with prior calculation and design.” In construing this element, we have held
that the statute’s own terms “suggest[] advance reasoning to formulate the purpose
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to kill.” State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124,
¶ 18. It is not enough for the state to show that Jones purposely killed Neri. Rather,
the state needs to provide “evidence of a premeditated decision or a studied
consideration of the method and the means to cause a death.” Id. There is no bright-
line test for determining whether a defendant’s actions show a premeditated
decision or studied consideration to kill—each case turns on its own facts. Id. at
¶ 19. And the three factors set out in Taylor help guide a court’s inquiry. See State
v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 56 (describing the
questions posed in Taylor as pertinent considerations when determining the
existence of prior calculation and design). But the Taylor factors are not
dispositive. Rather, a trier of fact’s finding of prior calculation and design is
warranted when the evidence shows a defendant had the time and opportunity to
plan a homicide and the homicide’s circumstances “ ‘show a scheme designed to
implement the calculated decision to kill.’ ” State v. Maxwell, 139 Ohio St.3d 12,
2014-Ohio-1019, 9 N.E.3d 930, ¶ 148, quoting State v. Cotton, 56 Ohio St.2d 8,
381 N.E.2d 190 (1978), paragraph three of the syllabus.
B. A reasonable jury could infer from the evidence presented at trial
that Jones acted with advance reasoning to formulate the purpose to kill Neri
{¶ 18} When these principles are read together, they refine the question
facing us in this appeal: could a reasonable juror—believing the state’s evidence
and drawing all reasonable inferences in the state’s favor—find beyond a
reasonable doubt that Jones acted with advance reasoning to formulate a purpose
to kill Neri? Reviewing the evidence presented at trial in a light most favorable to
the state, we conclude that a reasonable juror could make such a finding here. And
applying the Taylor framework helps make that clear.
{¶ 19} As to the first Taylor guidepost—whether the accused knew the
victim and whether their relationship was strained, 78 Ohio St.3d at 19, 676 N.E.2d
81—the answer is an unequivocal yes. Indeed, “strained” is an understatement.
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{¶ 20} The second inquiry we found relevant in Taylor is whether “the
accused [gave] thought or preparation to choosing the murder weapon or murder
site?” Id. A reasonable juror could easily find that Jones considered the murder’s
location. He rescheduled his planned fistfight with Neri to occur up the street from
Prather’s house at the same time he was to pick up his child. Next, on his arrival at
Prather’s house, Jones parked his car immediately in front of the house, on the
wrong side of the street in a no-parking zone, leaving the vehicle’s engine running
and its driver’s-side door open. And then Jones took several steps toward Neri
before opening fire.
{¶ 21} Our reasoning in Taylor shows why these facts can support a juror’s
finding of prior calculation and design. Id. at 20-21. In that case, Taylor was
convicted of aggravated murder for shooting his girlfriend’s ex-boyfriend after the
two men exchanged words while out at a bar. Id. at 15-17. In affirming his
conviction, we adopted the court of appeals’ assessment that Taylor’s decision to
wait until after his girlfriend had left the bar and his companion had positioned
himself behind the victim before he began shooting were strategic choices that
allowed the jury to infer that Taylor had planned to shoot the victim. Id. at 21.
And, given that inference, there was enough evidence to prove prior calculation and
design.
{¶ 22} So too here. The evidence shows that Jones and Neri planned a
confrontation for that evening, that Jones contacted Prather several times to confirm
the pick-up time and location, and that when he arrived, Jones parked in a no-
parking zone on the wrong side of the road and kept his car running with its door
open. Taken together, a jury could reasonably infer from this evidence that Jones
(1) knew or expected Neri to be close by when he arrived and (2) made strategic
choices that would assist in the perpetration of his crime. These inferences support
the jury’s finding that Jones planned to kill Neri and that he acted with prior
calculation and design.
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{¶ 23} A reasonable juror could also find that Jones gave thought to the
choice of the murder weapon. See Taylor, 78 Ohio St.3d at 19, 676 N.E.2d 82.
Such was the case in Taylor, in which we rejected the defendant’s argument that
the evidence showed only instantaneous deliberation. Id. at 22. Instead, we
reasoned that the jury could infer an intent to kill from the defendant’s choice to
bring the firearm into the bar that he knew the victim frequented. Id. We came to
a similar conclusion in State v. Palmer, 80 Ohio St.3d 543, 568, 687 N.E.2d 685(1997). In that case, the defendant was involved in a car accident. An argument
ensued, and the defendant shot and killed the driver of the other vehicle. Despite
the speed with which the killing occurred, we held that the evidence, which showed
that the defendant had exited his vehicle with a cocked and loaded firearm ready to
fire, allowed the jury to infer that the defendant intended to use the weapon. Id.{¶ 24} The facts here support the same reasoning. Jones and Neri had
planned a fistfight for the evening of the shooting and the jury could infer that Jones
expected to find Neri nearby—if not at—Prather’s house. Then, when Jones
arrived at Prather’s house, he pocketed a loaded firearm as he got out of his car.
Jones correctly argues that mere possession of a firearm is not enough to establish
prior calculation and design. See State v. Johnson, 10th Dist. Franklin No.
97APA03-315, 1998 Ohio App. LEXIS 2069, *16 (May 5, 1998). But the facts
here show more than Jones’s simply having a firearm that he regularly carried on
his person when he encountered Neri. Rather, the evidence showed an affirmative
choice by Jones to bring a loaded gun to a fistfight and, when he arrived, to stuff
the gun in his pocket. A jury could infer from these facts that Jones intended to use
the gun. And such an inference would support the jury’s finding that Jones formed
a plan to kill Neri and sought to bring that plan to fruition. See Palmer at 569.
{¶ 25} The third Taylor guidepost asks, “[W]as the act drawn out or ‘an
almost instantaneous eruption of events’?” Id., 78 Ohio St.3d at 19, 676 N.E.2d 82,
quoting Jenkins, 48 Ohio App.2d at 102, 355 N.E.2d 825. In the past we have held
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that evidence of a defendant “[p]ursuing and killing a fleeing or incapacitated
victim after an initial confrontation strongly indicates prior calculation and design.”
Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, at ¶ 22, citing State
v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 442 N.E.2d 996, ¶ 45. Here, the
evidence showed that Jones shot Neri once and then continued to fire at him as he
ran away. Under the principle restated in Walker, these facts support the jury’s
finding of prior calculation and design.
{¶ 26} That Jones’s decisions and actions occurred over a short time does
not preclude a finding of prior calculation and design. We have consistently held
that a defendant can conceive and execute a plan to kill, even if formulated within
a few minutes, when there is evidence that the defendant’s actions “went beyond a
momentary impulse and show that he was determined to complete a course of
action.” Conway at ¶ 46; see also Palmer, 80 Ohio St.3d at 568, 687 N.E.2d 685.
Without a doubt, the events here took place in short order. But no matter how
quickly the shooting happened, a juror could reasonably infer from Jones’s actions
before and during the shooting—including Jones’s planning of the fistfight, his
communications with Prather confirming the time and location to pick up their
child, his decision to pull in front of the house leaving the driver’s door open, his
decision to pocket a loaded firearm, and his choice to shoot Neri as he fled—that
Jones had adopted and carried out a plan to kill. Id.{¶ 27} This does not mean that the evidence precludes any other inferences.
But on a sufficiency review, the evidence need not satisfy so high a burden. “Where
reasonable minds can reach different conclusions upon conflicting evidence,
determination as to what occurred is a question for the trier of fact. It is not the
function of an appellate court to substitute its judgment for that of the factfinder.”
Jenks, 61 Ohio St.3d at 279, 574 N.E.2d 492. And therein lies the problem with
the court of appeals’ judgment. In reversing Jones’s conviction, the court of appeals
found it illogical to infer that Jones planned to kill Neri at Prather’s home because
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other evidence showed that Jones had planned to meet Neri up the street. It
discounted evidence establishing that Jones chose to pocket his firearm as he exited
his car because other evidence suggested that Jones might have had other reasons
to carry a firearm. And it concluded that the jury could not have inferred prior
calculation and design because of the brevity of the shooting. In sum, the court of
appeals conducted its own assessment of the evidence and drew the inferences it
found most persuasive, rather than crediting the state’s evidence and drawing all
reasonable inferences in the state’s favor. Such an analysis is more like a manifest-
weight review than a sufficiency analysis. See State v. Wilson, 113 Ohio St.3d 382,
2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. And it was an inappropriate basis to
reverse Jones’s conviction for insufficient evidence.
C. We remand the case to the trial court for a new trial
{¶ 28} In addition to finding that there was insufficient evidence to convict
Jones of aggravated murder, the court of appeals concluded that Jones was deprived
of his right to a fair trial based on several evidentiary errors and remanded the case
for a new trial on the murder and felony-murder charges. The state did not appeal
that part of the court of appeals’ judgment, and so the decision on those issues
stands.
{¶ 29} The court of appeals’ determination that the trial court committed
evidentiary errors prejudicial to Jones applies equally to Jones’s conviction for
aggravated murder. And our decision today reversing the appellate court’s
sufficiency finding means that Jones can also be retried on the aggravated-murder
charge.
{¶ 30} The court of appeals did not reach an assignment of error arguing
that Jones’s aggravated-murder conviction was against the manifest weight of the
evidence. But unlike a reversal for insufficient evidence, which requires the
discharge of the defendant, the remedy for a reversal on manifest-weight grounds
is a new trial. State v. Fips, 160 Ohio St.3d 348, 2020-Ohio-1449, 157 N.E.3d 680,
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¶ 8-10. Because the court of appeals’ resolution of other assignments of error
already requires a new trial on the three murder counts, there is no need to remand
to the court of appeals for consideration of Jones’s manifest-weight challenge.
{¶ 31} We remand the case to the trial court for a new trial on the
aggravated-murder, murder, and felony-murder charges. Jones did not appeal the
court of appeals’ judgment affirming his conviction for carrying a concealed
weapon, so his conviction for that offense is unaffected by our decision today.
III. Conclusion
{¶ 32} We reverse in part the judgment of the First District Court of Appeals
and remand the case to the trial court for a new trial on the aggravated-murder,
murder, and felony-murder charges.
Judgment reversed in part
and cause remanded to the trial court.
O’CONNOR, C.J., and KENNEDY, J., concur.
FISCHER, J., concurs in judgment only.
DONNELLY, J., dissents, with an opinion joined by BRUNNER, J.
STEWART, J., would dismiss the appeal as having been improvidently
accepted.
_________________
DONNELLY, J., dissenting.
{¶ 33} This court should not have accepted jurisdiction over this case. See
Ohio Constitution, Article IV, Section 2(B)(2)(e); State v. Noling, 136 Ohio St.3d
162, 2013-Ohio-1764, 992 N.E.2d 1095, ¶ 63 (O’Donnell, J., dissenting) (“we are
not an error-correcting court; rather, our role as the court of last resort is to clarify
confusing constitutional questions, resolve uncertainties in the law, and address
issues of public or great general interest”). Appellant state of Ohio’s propositions
of law and the lead opinion’s analysis involve nothing more than applying settled
law. Correcting a perceived legal error is not something we should do. Moreover,
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instead of providing guidance to the bench and bar, the lead opinion raises more
questions than it answers.
{¶ 34} It is important to remember that this case involves a death. Kevin
Neri was killed, and if it proves to be the case that it was without justifiable cause,
his killer should be punished. The state has alleged that appellee, Earl Jones, was
the shooter, and if the charge of murder is proved beyond a reasonable doubt on
remand, he should be held fully accountable for the crime and sentenced
accordingly.
{¶ 35} First, the lead opinion rightly relies on the well-known, if incredibly
deferential, standard that governs a reviewing court’s analysis of whether sufficient
evidence was presented at trial: a reviewing court must consider 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.’ ” State v. McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, 164
N.E.3d 316, ¶ 24, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus, superseded by constitutional amendment on other
grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102, 684 N.E.2d 668 (1997),
fn. 4. I dissented in McFarland because there was a paucity of evidence to support
a finding of the defendant’s guilt beyond a reasonable doubt. Id. at ¶ 54-90. The
same lack of evidence undermines the lead opinion here, despite the remarkably
low threshold required.
{¶ 36} Second, even a giant spotlight shining on the evidence in the state’s
favor fails to reveal the essential elements of the offense. If intent to kill can be
inferred from the facts in this case, what fact can’t intent be inferred from? The sad
truth is that Jones may indeed have shot Neri, but even so, that does not mean that
every action he took supports an inference of “advance reasoning to formulate a
purpose to kill.” Lead opinion at ¶ 18. As proof of Jones’s advance reasoning, the
lead opinion points out that Jones had “parked his car immediately in front of the
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house, on the wrong side of the street in a no-parking zone, leaving the vehicle’s
engine running and its driver’s-side door open,” id. at ¶ 20. The lead opinion adds
that “Jones took several steps toward Neri before opening fire.” Id. at ¶ 20. Taking
several steps toward the house from which he was scheduled to pick up his child is
not indicative of an intent to kill—unless you know that he had killed someone.
These inferences are just too easy and are hopelessly enmeshed with the allegation
that Jones killed Neri. Looking only at the facts, without reference to what
happened after, there is insufficient evidence of “advance reasoning” to kill. But
now we are left with ample reason for parents in a shared-custody arrangement to
be wary of parking on the wrong side of the road or in a no-parking zone—because
that act could result in an inference of intent if a crime occurs.
{¶ 37} Finally, how does the lead opinion square the inference of intent to
use a firearm with the right to bear arms? See Ohio Constitution, Article I, Section
4; Second Amendment to the U.S. Constitution. Does merely carrying a gun—an
act that is protected by both the state and federal Constitutions—allow a jury to
infer the intention to use a firearm? This inference alone is problematic. According
to the Ohio attorney general, in 2020, county sheriffs in Ohio issued 169,232
concealed carry licenses. https://www.ohioattorneygeneral.gov/Files/Reports/
Concealed-Carry-Annual-Reports-(PDF)/2020-CCW-Annual-Report (accessed
Sept. 1, 2021) [https://perma.cc/7FEJ-K2S8]. Does this mean that all those
Ohioans who just last year received licenses to carry a firearm intend to use their
firearm every time they lawfully carry a concealed weapon?
{¶ 38} We should not have accepted jurisdiction over this case. I did not
vote to accept this appeal, 159 Ohio St.3d 1413, 2020-Ohio-3275, 147 N.E.3d 655,
because I did not believe that it presented a significant constitutional question, an
uncertainty in the law, or an issue of public or great general interest. In my view,
this appeal involved the simple application of settled standards and thus asked this
court for error correction, if indeed you perceive the appellate court’s decision to
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be erroneous, which I do not. “Now that I have had the opportunity to review the
record with the benefit of full briefing, that conclusion seems all the more clear.”
Anderson v. WBNS-TV, Inc, 158 Ohio St.3d 307, 2019-Ohio-5196, 141 N.E.3d 192,
¶ 16 (DeWine, J., concurring in judgment only). We should dismiss this case as
having been improvidently accepted. I therefore dissent.
BRUNNER, J., concurs in the foregoing opinion.
_________________
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman Jr., Assistant Prosecuting Attorney, for appellant.
Timothy Young, Ohio Public Defender, and Peter Galyardt, Assistant
Public Defender, for appellee.
_________________
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