[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In 

re J.T., Slip Opinion No. 2015-Ohio-3654.] 

NOTICE

This slip opinion is subject to formal revision before it is published in 

an advance sheet of the Ohio Official Reports. Readers are requested 

to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 

65 South Front Street, Columbus, Ohio 43215, of any typographical or 

other formal errors in the opinion, in order that corrections may be 

made before the opinion is published. 

SLIP OPINION NO. 2015-OHIO-3654

IN RE J.T. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as In re J.T., Slip Opinion No. 2015-Ohio-3654.] 

Criminal law—An inoperable pistol that is not used as a bludgeon or otherwise 

used, possessed, or carried as a weapon is not a “deadly weapon” for 

purposes of R.C. 2923.12, which prohibits carrying a concealed weapon—

Conviction vacated. 

(No. 2014-0449—Submitted February 24, 2015—Decided September 10, 2015.) 

APPEAL from the Court of Appeals for Hamilton County, 

No. C-130434. 

_______________________ 

O’NEILL, J.

{¶ 1} The juvenile in this matter was carrying a broken pistol in his 

waistband that was no longer capable of firing a round. That fact 

notwithstanding, he was charged with carrying a concealed deadly weapon and 

was found delinquent. Today, we apply a common-sense reality check to that fact 

pattern. When a person has an inoperable handgun tucked into his or her 
SUPREME COURT OF OHIO

2

waistband and does not use it as a bludgeoning implement, it is not a deadly 

weapon. While it had been designed as a deadly weapon in that it was meant to 

fire a potentially lethal projectile, its essence as a deadly weapon ended when it 

became inoperable. In effect, since it was inoperable, it was no different from a 

stone or a brick. If it had been used as a bludgeon or otherwise used, possessed, 

or carried as a weapon, it could be considered a deadly weapon. As nothing more 

than a heavy object tucked into a waistband or a pocket, however, it was not. Just 

as it would be improper to convict someone of carrying a concealed weapon 

simply because he had a stone in his pocket, it is also improper to convict 

someone of that crime simply for having an inoperable pistol tucked into his 

waistband. 

Facts and Procedural History

{¶ 2} On March 17, 2013, Cincinnati Police Officer Frank Boggio was 

called to a location where a large group of juveniles had gathered. Boggio 

approached the group and stopped two males who were wearing dark hooded 

sweatshirts. One of them was appellant, J.T. Officer Boggio noticed a rather 

large bulge around J.T.’s waistband. Officer Boggio patted down J.T. and felt a 

gun tucked into his waistband. J.T. admitted that he had a gun, and the officer 

removed a loaded Hi-Point 9mm handgun from J.T.’s waistband. 

{¶ 3} That same day, Officer Boggio filed a complaint alleging that J.T., a 

minor, was delinquent for carrying a concealed deadly weapon on his person, a 

fourth-degree felony. On April 8, 2013, just prior to trial, the charge was 

amended to a first-degree misdemeanor because it had been determined that the 

gun was inoperable. J.T. was found to be delinquent. The magistrate stated that 

“[e]vidence proved beyond a reasonable doubt that the defendant possessed the 

firearm in his waistband” and that “[t]he weapon was inoperable but was still 

capable of being used as a deadly weapon.” J.T. was found to have violated R.C. 

2923.12, which prohibits carrying a concealed weapon. 
January Term, 2015 

3

{¶ 4} On April 22, 2013, J.T. timely filed written objections to the 

magistrate’s decision. On May 22, 2013, the trial court heard oral arguments on 

J.T.’s objections. The juvenile court subsequently overruled the objections and 

adopted the magistrate’s decision. J.T. filed an appeal in the First District Court 

of Appeals on July 15, 2013. In his appeal, J.T. argued that an inoperable pistol 

carried in one’s waistband and not brandished or used in any way is not a “deadly 

weapon” within the statutory meaning. On February 7, 2014, the First District 

Court of Appeals affirmed the trial court’s decision. The court stated that “[i]t is 

beyond cavil that the pistol had been designed as a weapon. And the arresting 

police officer testified that the pistol was a heavy, blunt object—evidence that the 

pistol was capable of inflicting deadly harm.” We accepted J.T.’s discretionary 

appeal. 139 Ohio St.3d 1416, 2014-Ohio-2487, 10 N.E.3d 737. 

Analysis

{¶ 5} The key question in this appeal is whether a person can be convicted 

of carrying a concealed weapon when the handgun being carried is inoperable and 

was not used as a bludgeon or otherwise used, possessed, or carried as a weapon. 

We must conclude that the answer is no. To hold to the contrary would 

necessarily lead to the conclusion that the operability of a gun is completely 

irrelevant. A gun could always be used as a bludgeon, so even an antique war 

relic would have to be considered a deadly weapon. Surely this was not the 

outcome intended by the legislature. 

{¶ 6} R.C. 2923.12(A) prohibits the carrying of a concealed weapon, 

including a “deadly weapon” or a handgun. R.C. 2923.11(A) provides, “ ‘Deadly 

weapon’ means any instrument, device, or thing capable of inflicting death, and 

designed or specially adapted for use as a weapon, or possessed, carried, or used 

as a weapon.” The First District Court of Appeals seemed to hang its hat on the 

fact that the gun J.T. had in his waistband had been designed as a weapon. It then 

found that the gun, while inoperable, was capable of deadly harm through use as a 
SUPREME COURT OF OHIO

4

bludgeon, as it “was a heavy, blunt object.” This reasoning reflects skewed logic. 

While the gun in question was no doubt designed as a weapon, the design was for 

the gun to shoot a projectile from the barrel at a high rate of speed. It was not 

designed to be used as a bludgeon, like a club or nightstick. The fact that the gun 

was inoperable means that it had lost the sole function for which it had been 

designed. It was no longer a deadly weapon unless there was some evidence 

presented that it was used as a bludgeon or otherwise used, possessed, or carried 

as a weapon. There was not. Hence, it was no more of a deadly weapon than is a 

laptop computer or a briefcase, yet attorneys are not routinely arrested for 

carrying concealed weapons as they enter our courthouses. 

{¶ 7} This court has previously held that a pistol must be operable or 

readily rendered operable at the time of the offense in order to be a “firearm” that 

would support a firearm specification under former R.C. 2929.71, Am.Sub.H.B. 

No. 261, 142 Ohio Laws, Part II, 3109. State v. Murphy, 49 Ohio St.3d 206, 208, 

551 N.E.2d 932 (1990), citing State v. Gaines, 46 Ohio St.3d 65, 545 N.E.2d 68 

(1989), syllabus. While the present case does not involve a firearm specification, 

there is no valid basis to distinguish between guns for purposes of a firearm 

specification and for the statute prohibiting carrying a concealed weapon. To 

allow an inoperable handgun to be considered a per se deadly weapon would be 

an unintended expansion of the statute. The General Assembly has shown that it 

is capable of crafting a statute that penalizes someone for carrying a gun whether 

it is operable or inoperable. R.C. 2923.122(C), the statute prohibiting weapons 

within a school zone, states, “No person shall knowingly possess an object in a 

school safety zone if * * * [t]he object is indistinguishable from a firearm, 

whether or not the object is capable of being fired.” 

{¶ 8} Clearly, the legislature could have used similar language in R.C. 

2923.11(A) if it had intended the crime of carrying a concealed weapon to include 
January Term, 2015 

5

possession of an inoperable handgun. The fact that it chose not to include such 

language should not be ignored. 

Conclusion 

{¶ 9} Based upon the foregoing analysis, an inoperable pistol that is not 

used as a bludgeon is not a “deadly weapon” for purposes of R.C. 2923.12, which 

prohibits carrying a concealed weapon. Accordingly, there was insufficient 

evidence to support appellant’s finding of delinquency for carrying a concealed 

weapon. The judgment of the court of appeals is reversed, and the finding of 

delinquency is vacated. 

Judgment reversed. 

O’CONNOR, C.J., and LANZINGER and FRENCH, JJ., concur. 

O’DONNELL and KENNEDY, JJ., concur in judgment only. 

PFEIFER, J., dissents and would dismiss the appeal as having been 

improvidently accepted. 

_________________ 

Raymond T. Faller, Hamilton County Public Defender, and Gordon 

Magella, Assistant Public Defender, for appellant. 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel 

Lipman Curran, Assistant Prosecuting Attorney, for appellee. 

_________________