An Ohio court of appeals has held that a defendant cannot be convicted of illegal possession of a firearm simply because the state had evidence that he had lived in the house where the weapon was found.
The case is State v. Burney, 2012-Ohio-3974.
The case started when the defendant was on probation in 2009 and was living in his mother’s house. His probation officer received information that he possessed firearms and arranged for a search of the house because as a condition of probation.
Prior to the search, the defendant informed the probation officer that he had a new contact address. The search proceeded, and the police found one shotgun in the basement and two shotguns underneath a couch in the living room, including a sawed off shotgun.
The police swabbed each of the guns for DNA. The sawed-off shotgun contained a DNA mixture consisting of at least three individuals’ DNA profiles. The defendant could be excluded as a contributor to the DNA mixture on the Remington gun, but could not be excluded as contributors to that DNA mixture on the shotgun.
Possession of a firearm by the defendant was a crime because of his criminal history. (Referred to in Ohio law as having a “weapon under disability.”) The argued that the State failed to prove he actually possessed the shotgun after his prior conviction, or after the gun was modified in an illegal fashion. The court agreed:
The State did not present evidence that defendant physically handled the weapon after the occurrence of one or both of the events that made possession illegal. . . . Further hampering the State’s efforts to pinpoint the time of possession, the DNA expert indicated DNA “is fairly stable over time,” so an investigator could recover DNA evidence from a weapon decades after its use, barring exposure to adverse environmental conditions.
The State essentially conceded this point, and instead argued that the evidence supported a conviction under a theory of constructive possession. The court also rejected this argument:
Possession, however, may not be inferred solely from “mere access” to contraband or occupation of the premises upon which contraband is found, particularly “where such premises are also regularly occupied by others as co-tenants and the [contraband is] found in an area ordinarily accessible to all tenants.” . . . Here, the parole officer’s testimony suggests defendant’s mother owned and occupied the . . . house, while defendant stayed there. The record further connects at least two of defendant’s siblings, as well as an unidentified child, to the house during the same time period. On those facts, defendant’s occupancy alone is insufficient to support an inference of possession, meaning the “state is required to adduce additional other evidence to establish possession.”
The court also found that the DNA evidence did not help the state:
The State’s reliance on DNA evidence to prove constructive possession takes the State back to the same problems presented in its actual possession argument. Although the DNA on the gun supports an inference that defendant touched the gun at some point, and thus was aware of it, the evidence does not allow the inference that he touched it while it was in his mother’s home and thus was aware of its presence there, facts the State seeks to infer to advance its constructive possession argument. Nor did the State prove the touching or awareness, necessary to support constructive possession, occurred after defendant’s disability came to be or after the shotgun became a dangerous ordnance.
The court concluded that the state should have presented additional evidence of either defendant’s physically handling the gun after he incurred his legal disability and after the weapon was modified, or, alternatively, defendant knowingly exercising dominion or control over the gun during the same period.