IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO,
:
Plaintiff-Appellee,
:
vs.
:
RICO MIDDLEBROOK,
APPEAL NO. C-100114
TRIAL NO. B-0900713
JUDGMENT ENTRY.
:
Defendant-Appellant.
:
We consider this appeal on the accelerated calendar, and this judgment entry
is not an opinion of the court.1
Rico Middlebrook appeals his conviction for having a weapon while under a
disability. We affirm the judgment of the trial court.
The evidence presented during a trial to the bench demonstrated that on
January 31, 2009, police officers had approached Middlebrook while he was selling
DVDs from a table in a parking lot. The officers suspected that Middlebrook was
selling bootleg DVDs.
When Officer Stephen Bender asked Middlebrook for
identification, Middlebrook indicated that he had a permit for carrying a concealed
weapon. Bender asked if Middlebrook had a gun, and Middlebrook told him that he
had a gun in his car. While retrieving the gun from the car, the officers discovered a
copy of an indictment. Middlebrook conceded that, at the time he was stopped by
the police officers, he was under indictment in Greene County, Ohio. According to
the indictment, Middlebrook had been indicted on December 4, 2008.
1
See S.Ct.R.Rep.Op. 3(A), App.R. 11.1(E), and Loc.R. 12.
OHIO FIRST DISTRICT COURT OF APPEALS
At the conclusion of the testimony, the trial court found Middlebrook guilty as
charged and sentenced him to two years of community control.
In his sole assignment of error, Middlebrook asserts that the trial court erred
when it convicted him of having a weapon while under a disability. Middlebrook
concedes that he was under a disability at the time of the alleged offense. But he
contends that he was immune from prosecution because he had voluntarily
surrendered the gun to the police officers.
R.C. 2923.13(A)(3) makes it a crime for a person who is under indictment to
“knowingly acquire, have, carry, or use any firearm[.]” Under R.C. 2923.23(A), a
person is immune from prosecution for violating R.C. 2923.13, if he reports his
possession of the firearm and voluntarily surrenders it to the law enforcement
authority. But “[a] surrender is not voluntary if it occurs when the person is taken
into custody or during a pursuit or attempt to take the person into custody under
circumstances indicating that the surrender is made under threat of force.”2 Here,
Middlebrook told the officers about the gun only after they had asked whether he had
one. We conclude that Middlebrook did not voluntarily surrender the gun to police
officers. The sole assignment of error is overruled.
Therefore, we affirm the trial court’s judgment.
A certified copy of this judgment entry is the mandate, which shall be sent to
the trial court under App.R. 27. Costs shall be taxed under App.R. 24.
HILDEBRANDT, P.J., SUNDERMANN and DINKELACKER, JJ.
To the Clerk:
Enter upon the Journal of the Court on September 30, 2010
per order of the Court _______________________________.
Presiding Judge
2
R.C. 2923.23(A).
2