The Ohio Supreme Court has held that an Ohio law that adds a five year prison term when a defendant commits certain felonies “by discharging a firearm from a motor vehicle other than a manufactured home.” is not applicable when a person fires a weapon while standing completely outside a motor vehicle.
The case is State v. Swidas, Slip Opinion No. 2012-Ohio-4638.
In this case, the Defendant shot Ulysses “Cory” Altizer.
The issue was the defendant’s location when he fired his weapon. The court explained:
Where he was when he fired the gun makes a significant difference: R.C. 2941.146 states that if he fired the shots “from a motor vehicle,” he is subject to a mandatory, five-year prison term. But what does “from a motor vehicle” mean?
The issue came down to what the word “from” means in the phrase “from a motor vehicle.” The evidence suggested that the defendant was standing near, but not inside, a car.
One witness said that the defendant was “over the windshield of the car a little bit, pointing a gun at me, shooting.” The witness did not testify that any part of the defendant was on the vehicle. While the appellate court believed that the defendant was leaning on the vehicle as he shot the victim, this belief was erroneous.
The statute was intended to apply to drive-by shootings. “But” the court asked, “does it apply to a “stand-by” shooting?” The court applied standard definitions of from to mean a “point” or “place” whence something departs. The court said:
In the statute, that point or place is “a motor vehicle.” That place is not “the vicinity of a motor vehicle” or “near a motor vehicle.” The statute requires that the starting point of the activity is the motor vehicle itself.
But a motor vehicle cannot fire a weapon; the statute applies to people. That does not obviate the statutory requirement that the locus of the discharge of the weapon is the motor vehicle itself. For the locus of the discharge to be the motor vehicle, then, the person discharging the weapon must have a substantial physical connection to the vehicle. If a person were in or on a vehicle to the extent that the vehicle was providing substantial support to the person, the locus of that person’s firing of the weapon would be the motor vehicle. Without a substantial physical connection to the vehicle, a shooter cannot be said to have fired a shot that commenced from the motor vehicle.
The argued that a defendant does not need to have physical contact with the car, but only that the vehicle must be “the instrumentality, the sine qua non, of the crime.” However, the court rejected this argument, stating that the statute referred only to the location of the shooter at the time of the shooting.