[Cite as State v. House , 2023

- Ohio

- 4833.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO

Appell ant

v.

TIMOTHY JAMES HOUSE

Appell ee C.A. No. 30785

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT , OHIO CASE No. CR 22 11 3982

DECISION AND JOURNAL ENTRY

Dated: December 29, 2023

SUTTON, P residing J udge

. {¶1} Plaintiff

- Appellant, State of Ohio, appeals from the judgment of the Summit

County Court of Common Pleas. For the following reasons, this Court reverses.

I.

Relevant Background
{¶2} Defendant

- Appellee, Timothy House, was convicted of misdemeanor aggravated

menacing in Barberton Municipal Court. As part of his sentence, Mr. House was ordered to serve

three days in a community corrections program. However, Mr. House failed to do so an d

Barberton Municipal Court issued a warrant for his arrest. Subsequently, Akron police officers
responded to a dispute between Mr. House and his roommate. Mr. House’s roommate informed

the police that Mr. House was in possession of firearms. Mr. House locked himself inside the

residence and fled the scene through another door. The police remained in pursuit of Mr. House2

and arrested him. After being Mirandized , Mr. House admitted to knowing about the warrant for

his arrest and to owning the firearms.
{¶3} Mr. House was indicted on one count of having weapons while under disability, in

violation of R.C. 2923.13(A)(1)/(B), a felony of the third degree; obstructing official business, in

violation of R.C. 2921.31(A)/(B), a second degree misdemeanor; and four fo rfeiture specifications,

as to the confiscated weapons, pursuant to R.C. 2941.1417. The count for having weapons while

under disability alleged Mr. House:

[o]n or about the 6th day of November, 2022, in the County of Summit and State of Ohio [], did commit the crime of HAVING WEAPONS WHILE UNDER DISABILITY in that he did knowingly acquire, have, carry, or use a firearm or dangerous ordnance and he is a fugitive from justice[.]

(Emphasis in original.)
{¶4} Mr. House pleaded not guilty and filed a motion to dismiss. In so doing, Mr. House

argued he is not a fugitive from justice. Specifically, Mr. House argued he never left the State of

Ohio or Summit County. The State responded indicating Mr. House is a f ugitive from justice
because Barberton Municipal Court had jurisdiction over Mr. House’s conviction for misdemeanor
aggravated menacing and issued a warrant for Mr. House’s arrest when he failed to serve his

sentence. Subsequently, Mr. House was arrested in Akron, outside the jurisdiction of the

Barberton Municipal Court.
{¶5} In granting Mr. House’s motion to dismiss, the trial court stated, in relevant part:

Firstly, the court is a bit flummoxed and wonders how a bench warrant issued from a municipal court for a minor violation such as failing to appear for a sentence on a misdemeanor conviction can transmute a defendant’s standing from “free on bond and order ed to appear” into fugitive from justice. This is especially problematic because there is no statutory definition for the term under the charging statute, and the only statutory definition available is provided in the extradition statutes, which the [S]ta te argues should not apply. The underlying offense giving rise to the warrant was a misdemeanor offense, from which no disability can arise. The nature of the warrant for failure to appear to complete sentence was essentially a3

contempt/bench warrant as opposed to a probation warrant as might issue in a felony case.

Secondly, it seems more than a bit counterintuitive to impose a fugitive

- from

justice disability when the defendant is not aware of such disability. The defendant does not deny that he failed to [serve three days in a community corrections program]. Howe ver, in the following seven months, aware of the warrant, he appears to have carried on with his normal activities as he never left the area, let alone the state. * * *

This court is bound to follow the lead of our superior court, which has provided the only definition for fugitive from justice available, the elements of which have been denoted above and summed up as follows: “Thus, all that is necessary to convert a
stat e criminal into a fugitive from justice is that he left the state after having incurred guilt there.” As such is not the case here, [Mr. House] is in fact not a fugitive from justice on the legal question. There are no factual issues as to this topic to be resolved by a jury.
{¶6} The State now appeals raising one assignment of error for this Court’s review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN DISMISSING THE INDICTMENT FOR HAVING A WEAPON WHILE UNDER DISABILITY.
{¶7} In its sole assignment of error, the State argues the trial court erred in granting Mr.
House’s motion to dismiss. Specifically, the State argues the trial court erred when it addressed

the quality and quantity of the evidence the State may present at tri al to prove Mr. House was a

fugitive from justice.
{¶8} We review a trial court's legal conclusions in ruling on a pretrial motion to dismiss

criminal charges de novo. State v. Marrero , 9th Dist. Lorain No. 09CA009738, 2010

- Ohio

- 3663,

¶ 5. As this Court stated in State v. Hickman , 9th Dist. Medina No. 20CA0049

- M, 2021

- Ohio

1981, ¶ 6:

Crim. R. 12(C)(2) provides that prior to trial, any party may raise by motion any defense, objection, evidentiary issue, or request that is capable of determination4

without the trial of the general issue including defenses and objections based on defects in the indictment. When a defendant moves to dismiss an indictment, the threshold question is whether the trial court can determine the motion without reference to t he general issue to be tried. This is because a motion to dismiss an indictment tests the legal sufficiency of the indictment, regardless of the quality or quantity of the evidence that may be introduced by either the state or the defendant. In conductin g this pretrial review, courts may look to evidence beyond the face of the indictment. The Ohio Rules of Criminal Procedure, however, do not allow for summary judgment on an indictment prior to trial.

(Internal quotations and citations omitted.) See also State v. S wazey , Slip Opinion No. 2023

- Ohio

4627. Thus, “[a]n indictment may be defective if it alleges violations of a statute by a person who

is not subject to that statute and there is no set of circumstances under which such a person can
violate the law’s requirements.” State v. Parker , 5th Dist. Licking No. 23CA00009, 2023

- Ohio

2127, ¶ 19.
{¶9} Pursuant to R.C. 2923.13(A)(1):

Unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:

The person is a fugitive from justice.

Here, in dismissing the indictment for having weapons while under disability, the trial court
improperly considered the quality and quantity of the State’s evidence as to whether Mr. House is,

in fact, a fugitive from justice. This type of sufficiency ana lysis, however, is not appropriate for a

Crim.R. 12(C)(2) motion. Instead, once the State puts on its evidence at the trial of the general

issue, the trial court can properly determine whether the State introduced sufficient evidence to

support a convicti on pursuant to Crim.R. 29. Therefore, the trial court erred in dismissing the

indictment, at this stage in the process, for having weapons while under disability.
{¶10} Accordingly, the State’s assignment of error is sustained.5

III.
{¶11} The State’s sole assignment of error is sustained. The judgment of the Summit

County Court of Common Pleas is reversed, and the matter is remanded for proceedings consistent

with this decision.

Judgment reversed, and cause remanded.

T here were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas , County of Summit , State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22( C ). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellee

.

BETTY SUTTON FOR THE COURT

HENSAL, J. FLAGG LANZINGER, J. CONCUR

.6

APPEARANCES:

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellant.

NOAH C. MUNYER, Attorney at Law, for Appellee.