MEMORANDUM
To: XXX
From: XXX
Date: XXX
Re: XXX
STATEMENT OF FACTS
Our Client, XXX, was arrested by police on XXX for the federal offense of possession of stolen property. XXXX was a security guard serving at XXX Outfitters Clothing Store located in XXX. The management of XXX Outfitters Clothing Store observed that XXXX had removed items of clothing without paying for them on several occasions. XXX Outfitters contacted the Terrace Heights Police Department to report XXX. You have asked me, under Section XXX of the Revised Code of XXXX, whether the court will decide XXX is armed during the commission of the alleged crime.
XXX carries a firearm as a part of his job as a security guard. That firearm is loaded when he is working. His normal procedure is to unload the weapon when he gets home and store it in the nightstand in his bedroom. On XXX, having completed his eight-hour shift at the XXX Outfitters store at 6.00 pm, left the store and arrived home around XXX. At XXX, the police arrived at XXX residence with a search warrant for any clothing items taken without permission from Suburban Outfitters Clothing Store. When XXX answered the door, the police asked him to step outside. He did so immediately, and they showed him the search warrant. XXX remained outside about two feet away from his open front door while the police conducted the search of his home. There were no officers who remained outside with him while the police were searching his house.
XXX said that he placed his firearm on a table right behind his front door just before he answered the door. Because the open front door was blocking the table, it was not visible to anyone standing on the doorstep when the door is open. About ten minutes after the police began searching his house, the police found a loaded firearm placed on a table located near XXX front door.
ISSUE STATEMENT
Under Section §9.94A.825 of the Revised Code of XXX, will the court determine that XXXX was armed during the commission of the alleged crime when (1) XXX carries a firearm as a part of his job as a security guard; (2) XXX left the store and arrived home around 6.45 pm; (3) at 6.47 pm, the police arrived at XXX residence with a search warrant; (4) XXX said that he placed his firearm on a table right behind his front door just before he answered the door; (5) XXX remained outside about two feet away from his open front door while the police conducted the search of his home, and (6) There were no officers who remained outside with him while the police were searching XXX house.
DISCUSSION
Under Section §9.94A.825 of the Revised Code of XXX, the court will (conclusion). The general rule as laid down by the court in XXX in determining whether the defendant was armed or not is (1) when he or she is within proximity of an easily and readily available weapon for offensive or defensive purposes and (2) when a nexus is established between the defendant, the weapon, and the crime.
- Legislative policy—XXXX
- Burden of Proof
- Definition of deadly weapon
1) Is. Mr. Coleman within proximity of an easily and readily available weapon for offensive or defensive purposes? (proximity: readily available +offensive and defensive purpose)
RULES: The court in State v Valdovinos[1] that a defendant is armed if, at the time of the commission of the offense, a deadly weapon was easily accessible to the defendant either for defensive or offensive purposes. In the case, the court noted that the loaded rifle was under the bed in the defendant’s mobile home at the time of the commission of the crime, and it was therefore not easily accessible.[2] In-State v Taylor[3], the court established that proximity proves that the weapon was easily accessible to the defendant at the time of the commission of the crime. In the case, an unloaded gun and an ammunition clip sat on a table next to the defendant. The suitable application of the proximity test is that the weapon must have existed few meters away from where the defendant stood.[4] In-State v Simonson,[5] the court held that a defendant possesses a deadly weapon if he owns the firearm or weapon and exercises control over the weapon. In CCC [6] the defendant was arrested and charged for having heroin with the intent to deliver it. The court found that the defendant had a loaded gun positioned underneath his seat at the commission of the offense. It was quickly accessible for either defensive or offensive purposes. Further, the court opinioned that the proximity between the weapon and the defendant satisfies the weapon-defendant proximity established in XXX
FACT APPLICATION: Here in Mr. Coleman’s case, Mr. Coleman carries a firearm as a part of his job as a security guard in XXXX outfitters. That firearm is loaded when he is working. Mr. Coleman said that he placed his firearm on a table right behind his front door just before he answered the door. Therefore, Mr. Coleman was within proximity of an easily and readily available weapon. However, the mere presence of a deadly weapon at the crime scene does not establish that a defendant was armed. There needs to be an establishment of the weapon for offensive and defensive purpose.
2) Is there a nexus established between the XXXX, the weapon, and the crime? (proximity element is much broader than the defendant-weapon nexus; proximity—much broader; physical readily available+purposes)
In determining whether XXX was armed, the following factors should be addressed. To prove the relationship between the weapon and the defendant beyond a reasonable doubt, three factors are the nature of the crime committed by the defendant, the nature and type of weapon used by the defendant, and the circumstances under which the weapon was found, thus playing a part towards the commission of the crime by the defendant. (source)
The court in State v Gurske[8] addressed the weapon-defendant test required in establishing the connection between the defendant and the weapon. In Schelin case,[9] the court outrightly stated that a person is armed if a weapon is easily accessible to the defendant for use either offensively or defensively. As laid down by the court in State v Valdovinos[10] and State v Easterlin[11] there must exist a nexus between the defendant and the weapon in that there is the proximity between the two.
In the present case concerning Mr. Coleman, the crime Mr. Coleman is charged with possessing the stolen property and having a firearm or a deadly weapon. The second factor is the nature of the weapon. As indicated in the statement of facts part of this memorandum, Mr. Coleman worked as a security guard at the Suburban Clothing Centre. He had a loaded gun which he was supposed to unload upon getting home. After obtaining a search warrant, the police searched his house and discovered his loaded firearm on a table next to the front door. The third factor is the the circumstances under which the weapon was found. As laid down by the court in State v Valdovinos[12] and State v Easterlin[13] there must exist a nexus between the defendant and the weapon in that there is the proximity between the two. In the case of Mr. Coleman, there is no evidence of the existence of proximity between the weapon and the defendant for the use of offensive or defensive purposes. The defendant had not moved from where he stood as the police searched. …
Therefore, given the circumstances of the case, Mr. Coleman will not be sentenced based on the Deadly Weapons Enhancement Act.
Notes:
Offensive and defensive purpose— (case law defining offensive purpose) Mr. Coleman carries a firearm as a part of his daily job as a security guard. Because of the nature and requirement of his occupation, there is evidence to suggest that Mr. Coleman’s possession of the firearm was not for offensive purposes for stealing clothes from the store. (Case law defining defensive purpose) Mr.Coleman’s normal procedure is to unload the weapon when he gets home and store it in the nightstand in his bedroom. On August 16, 2021, Mr. Coleman left the store and arrived home around 6.45 pm and at 6.47 pm, the police arrived at Mr. Coleman’s residence with a search warrant. It is of reasonable doubt that, within approximately 2 minutes of time, whether Mr. Coleman would have the time to unload the weapon as he usually does in his normal procedure.
Element—proximity; nexus; readily and easily available
In-State v Ague-Masters[14]the defendant was charged with the unlawful manufacture of methamphetamine in the presence of a minor while armed with a deadly weapon. The trial court found him guilty of the offence, and the court relied on the Deadly Weapon Enhancement Act in sentencing the defendant. The defendant appealed the trial court’s decision in the appellate court. He noted that the prosecution lacked sufficient evidence to support his conviction on possessing a deadly weapon in the manufacturing process. He further contended that the evidence produced by the prosecution did not prove that he was armed for the commission of the crime. The appellate court affirmed and adopted the decision made by the trial court.
In-State v Gurske[15] the defendant was stopped over by the police while driving with a suspended license. The police arrested him and impounded his truck. The police discovered a zipped backpack in the car that contained a loaded pistol, magazine, and three grams of methamphetamine. The court relied on the Deadly Weapons Enhancement Act in the sentencing because the loaded handgun was close to the defendant. Additionally, this enhanced his sentence for the possession of a controlled substance. The defendant appealed in the appellate court. The defendant claimed that the mere presence of the loaded pistol in his truck does not necessarily mean that he was armed. In the determination of the case, the court applied the possession tests. In the given case, the possession applicable was constructive because he could exercise control over the weapon. The court established that the loaded firearm was easily accessible to the defendant at the time of the commission of the crime. The appellate court affirmed the decision of the trial court that Gurske was armed because the backpack was in his truck contained a loaded firearm, had guns, and it lay within an arm’s reach to the driver’s seat.
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