[Cite as State v. McKenzie, 2026-Ohio-2869.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO, CASE NO. 1-25-67
PLAINTIFF-APPELLEE,
v.
KEITH W. MCKENZIE, OPINION AND
JUDGMENT ENTRY
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2025 0136
Judgment Affirmed
Date of Decision: July 27, 2026
APPEARANCES:
Jade Musa for Appellant
John R. Willamowski, Jr. for Appellee
Case No. 1-25-67
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Keith W. McKenzie (“McKenzie”), appeals the
October 22, 2025 judgment entry of sentence of the Allen County Court of Common
Pleas. For the reasons that follow, we affirm.
{¶2} This case stems from a traffic stop on February 22, 2025, when law
enforcement stopped a vehicle operated by Timothy Looper (“Looper”) due to an
illegally tinted license plate. During the course of the traffic stop, officers learned
that McKenzie, who was riding in the passenger seat of the vehicle, had outstanding
warrants and asked him to exit the vehicle. While McKenzie was being placed
under arrest for the unrelated warrants, an officer observed the top portion of a
firearm protruding from underneath the passenger seat where McKenzie had just
been sitting. The firearm was recovered from the vehicle and later identified as a
.22-caliber Marlin rifle.
{¶3} On May 15, 2025, the Allen County Grand Jury indicted McKenzie on
Count One of having weapons while under disability in violation of R.C.
2923.13(A)(2), (B), a third-degree felony, and Count Two of having weapons while
under disability in violation of R.C. 2923.13(A)(3), (B), a third-degree felony.
Count One was predicated on a prior conviction for burglary under R.C.
2911.12(A)(3), a felony offense of violence, while Count Two was predicated on a
prior conviction for aggravated possession of drugs under R.C. 2925.11(A),
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(C)(1)(a), a felony drug offense. The indictment included a forfeiture specification
as to both counts. On June 16, 2025, McKenzie filed a written plea of not guilty to
the indictment.
{¶4} On October 21-22, 2025, the case proceeded to a jury trial. On October
22, 2025, the jury found McKenzie guilty of both counts along with the
corresponding forfeiture specifications.
{¶5} On October 30, 2025, the trial court sentenced McKenzie to 24 months
in prison on Count One and ordered the prison term in this case to be served
consecutively to the prison term imposed in another case. The trial court ordered
the firearm forfeited and merged Counts One and Two for purposes of sentencing.
{¶6} On November 6, 2025, McKenzie filed his notice of appeal. He raises
five assignments of error for our review. For ease of our discussion, we will begin
by addressing McKenzie’s first assignment of error, followed by his fourth and fifth
assignments of error together, then his second and third assignments of error
together.
First Assignment of Error
The trial court committed plain error by failing to dismiss Mr.
McKenzie’s indictment under R.C. 2923.13(A) as
unconstitutional under the Second and Fourteenth Amendments
of the United States Constitution. Indictment (May 15, 2025);
Judgment Entry of Conviction (Oct. 22, 2025).
{¶7} In his first assignment of error, McKenzie argues that the trial court
committed plain error by failing to sua sponte dismiss the indictment in this case,
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asserting that Ohio’s having-weapons-while-under-disability statute, R.C.
2923.13(A), is unconstitutional under the Second Amendment both on its face and
as applied to him. Specifically, he contends that the statute is facially invalid
because it permanently disarms individuals without an individualized judicial
finding that they present a credible threat to the physical safety of another. As
applied to him, McKenzie makes two distinct arguments: first, that R.C.
2923.13(A)(2) cannot constitutionally reach his prior burglary conviction because
the offense did not require a finding of harm or the risk of harm to another person;
and second, that R.C. 2923.13(A)(3) cannot constitutionally reach his prior
aggravated drug possession conviction because there was no evidence he was under
the influence of any substance at the time of his arrest.
Standard of Review
{¶8} “Generally, we review a trial court’s decision on a motion to dismiss an
indictment for [an] abuse of discretion.” State v. Hudson, 2022-Ohio-1435, ¶ 19.
An abuse of discretion suggests that a decision is unreasonable, arbitrary, or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).
{¶9} However, “appellate courts conduct a de novo review of a trial court’s
decision concerning a defendant’s motion to dismiss all or part of an indictment
based upon a constitutional challenge to the statute under which the defendant
stands indicted.” State v. Wheatley, 2018-Ohio-464, ¶ 5 (4th Dist.). “De novo
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review is independent, without deference to the lower court’s decision.” State v.
Hudson, 2013-Ohio-647, ¶ 27 (3d Dist.).
{¶10} Nevertheless, because McKenzie did not object or move to dismiss the
indictment, he has waived all but plain error on appeal. State v. Hood, 2025-Ohio422, ¶ 19 (3d Dist.). Under “‘Crim.R. 52(B), “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of
the court.”’” State v. Harrison, 2015-Ohio-1419, ¶ 69 (3d Dist.), quoting State v.
Walburg, 2011-Ohio-4762, ¶ 47 (10th Dist.), quoting Crim.R. 52(B). “We
recognize plain error with the utmost caution, under exceptional circumstances, and
only to prevent a manifest miscarriage of justice.” Id. “‘For plain error to apply,
the trial court must have deviated from a legal rule, the error must have been an
obvious defect in the proceeding, and the error must have affected a substantial
right.’” Id., quoting State v. Vielma, 2012-Ohio-875, ¶ 34 (3d Dist.). “‘Under the
plain error standard, the appellant must demonstrate that the outcome of his trial
would clearly have been different but for the trial court’s errors.’” Id., quoting
Vielma at ¶ 34.
Analysis
{¶11} In this case, McKenzie challenges the constitutionality of Ohio’s
having-weapons-while-under-disability statute under the Second Amendment of the
United States Constitution, raising both facial and as-applied arguments following
the United States Supreme Court’s decisions in New York State Rifle & Pistol Assn.,
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Inc. v. Bruen, 597 U.S. 1 (2021), and United States v. Rahimi, 602 U.S. 680 (2024).
Ohio’s having-weapons-while-under-disability statute, codified under R.C.
2923.13(A), provides, in its relevant part, that “[u]nless 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 they have been convicted of a
felony offense of violence (R.C. 2923.13(A)(2)) or a felony drug offense (R.C.
2923.13(A)(3)).
{¶12} Specifically, McKenzie argues that the statute is facially invalid
because it allows for permanent, class-wide disarmament without requiring an
individualized judicial determination that a person presents a credible threat to the
physical safety of another. As applied to his specific predicate offenses, he argues
that his prior burglary conviction does not fall within a historical tradition of
dangerousness because the offense did not involve harm or the risk of harm to
another person. Regarding his prior aggravated drug possession conviction, he
argues that disarmament is unconstitutional as applied because there was no
evidence he was under the influence of any substance at the time of his arrest.
{¶13} “‘An enactment of the General Assembly is presumed to be
constitutional, and before a court may declare it unconstitutional it must appear
beyond a reasonable doubt that the legislation and constitutional provisions are
clearly incompatible.’” State v. Brown, 2010-Ohio-4546, ¶ 9 (3d Dist.), quoting
State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955), paragraph one of
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the syllabus. “‘That presumption of validity of such legislative enactment cannot
be overcome unless it appear[s] that there is a clear conflict between the legislation
in question and some particular provision or provisions of the Constitution.’” Id.,
quoting Xenia v. Schmidt, 101 Ohio St. 437 (1920), paragraph two of the syllabus.
{¶14} “A statute may be challenged on constitutional grounds in two ways:
(1) that the statute is unconstitutional on its face, or (2) that it is unconstitutional as
applied to the facts of the case.” Id. at ¶ 10. “To mount a successful facial challenge,
the party challenging the statute must demonstrate that there is no set of facts or
circumstances under which the statute can be upheld.” (Emphasis added.) Id.
“Where it is claimed that a statute is unconstitutional as applied, the challenger must
present clear and convincing evidence of a presently existing set of facts that make
the statute unconstitutional and void when applied to those facts.” Id.
{¶15} “The Second Amendment to the United States Constitution provides:
‘A well regulated Militia, being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be infringed.’” State v. Johnson, 2024-Ohio-1163, ¶ 16 (8th Dist.), quoting the Second Amendment to the U.S.
Constitution. “Article I, Section 4 of the Ohio Constitution sets forth a similar
guarantee: ‘The people have the right to bear arms for their defense and security;
but standing armies, in time of peace, are dangerous to liberty, and shall not be kept
up; and the military shall be in strict subordination to the civil power.’” State v.
Windland, 2024-Ohio-1760, ¶ 28 (5th Dist.), quoting Ohio Const., art. I, § IV.
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{¶16} Courts review Second Amendment claims under the two-step
Bruen/Rahimi framework. State v. Ball, 2026-Ohio-2051, ¶ 7 (10th Dist.). First,
the court must determine whether the plain text of the Second Amendment covers
the regulated conduct. If it does, the burden shifts to the State to demonstrate that
the regulation is “consistent with the principles that underpin the nation’s historical
tradition of firearm regulation.” Id. To satisfy this burden, the State need not
identify a “historical twin,” but rather a “historical analogue.” Rahimi, 602 U.S. at
701. Under this framework, prohibiting firearm possession by convicted felons or
those deemed a danger to others remains a “presumptively lawful” historical
analogue that does not violate the Second Amendment. Id. at 699.
{¶17} Assuming without deciding that McKenzie’s conduct is covered by
the Second Amendment, we conclude that R.C. 2923.13(A) is not facially invalid
under the Second Amendment. See State v. Thompson, 2026-Ohio-1725, ¶ 59 (10th
Dist.) (assuming without deciding that the plain text of the Second Amendment
presumptively protects the conduct of an individual charged under R.C. 2923.13).
Fundamentally, R.C. 2923.13(A) aligns with the historical tradition of disarming
individuals deemed dangerous. See State v. Windland, 2024-Ohio-1760, ¶ 21 (5th
Dist.); State v. King, 2024-Ohio-4585, ¶ 33 (8th Dist.). But see State v. Philpotts,
2025-Ohio-1179 (8th Dist.) (finding the portion of R.C. 2923.13(A)(2) that disarms
individuals under indictment for a felony offense of violence to be facially
unconstitutional), appeal accepted, 2025-Ohio-2749. Indeed, R.C. 2923.13(A) has
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numerous constitutional applications, including disarming individuals convicted of
violent felonies or drug trafficking offenses, categories historically associated with
dangerousness. See Windland at ¶ 21. Because history demonstrates a clear link
between these offenses and dangerousness, disarming these categories of offenders
does not facially violate the Second Amendment. See King at ¶ 27 (determining
that R.C. 2923.13(A)(2) is not facially unconstitutional because the statute comports
with “this Nation’s historical tradition of firearm regulation”).
{¶18} Moreover, the statute provides a pathway for relief under R.C.
2923.14, ensuring it is not overly broad or universally prohibitive. See id. at ¶ 32;
Windland at ¶ 21, fn. 1. But see State v. Thacker, 2024-Ohio-5835, ¶ 105 (1st Dist.)
(holding R.C. 2923.13(A)(3) unconstitutional as applied to a nonviolent juvenile
offender in part because the resulting lifetime disarmament is “subject only to a trial
court’s discretionary determination whether to lift his disability”), appeal accepted,
2025-Ohio-705.
{¶19} Consequently, since the statute possesses lawful applications,
McKenzie cannot meet the heavy burden of establishing that no set of circumstances
exists under which the law is valid. See United States v. Williams, 113 F.4th 637,
657 (6th Cir. 2024) (concluding that the federal weapons under disability analogue
“is not susceptible to a facial challenge” because “our nation’s history and tradition
demonstrate that Congress may disarm individuals they believe are dangerous”).
Therefore, McKenzie’s facial challenge must fail. See Washington State Grange v.
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Washington State Republican Party, 552 U.S. 442, 449 (2008) (explaining that a
plaintiff must establish “that no set of circumstances exists under which the Act
would be valid,” and that a facial challenge must fail if the statute retains a “plainly
legitimate sweep”).
{¶20} Furthermore, even if we construe McKenzie’s argument as a narrower
facial challenge directed specifically at R.C. 2923.13(A)(2) or (A)(3), the result
remains the same. That is, because both subsections encompass undeniably
constitutional applications, neither provision is unconstitutional in all of its
applications.
{¶21} McKenzie’s as-applied challenges fare no better. The prohibitions on
firearm possession under R.C. 2923.13(A)(2) and (3), as applied to McKenzie in
this case, are consistent with the principles that underpin the nation’s historic
tradition of firearm regulation. See Thompson, 2026-Ohio-1725, at ¶ 62 (10th Dist.)
(acknowledging that “numerous courts have concluded that disarmament of
dangerous individuals is consistent with the nation’s history and tradition of firearm
regulation”); State v. Skaggs, 2024-Ohio-4781, ¶ 31 (5th Dist.) (determining that
“R.C. 2923.13(A)(3) is consistent with the Nation’s historical tradition of firearms
regulation, as applied to appellant”). But see Thacker, 2024-Ohio-5835, at ¶ 105
(1st Dist.) (finding R.C. 2923.13(A)(3) unconstitutional as applied to a defendant
whose disability was based on a juvenile adjudication for a drug offense), appeal
accepted, 2025-Ohio-705.
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{¶22} In this case, McKenzie was charged with violating both R.C.
2923.13(A)(2) and (3) predicated on his prior convictions for burglary under R.C.
2911.12(A)(3), a third-degree felony, and aggravated possession of drugs under
R.C. 2925.11(A), (C)(1)(a), a fifth-degree felony. See Thompson at ¶ 61 (explaining
that an indictment charging multiple disability predicates survives a constitutional
challenge so long as at least one provision is validly applied).
{¶23} R.C. 2923.13(A)(2) prohibits firearm possession by a person who “is
under indictment for or has been convicted of any felony offense of violence or has
been adjudicated a delinquent child for the commission of an offense that, if
committed by an adult, would have been a felony offense of violence.” McKenzie’s
prior felony conviction for burglary under R.C. 2911.12(A)(3) places him squarely
within this category of individuals that the legislature has determined pose a risk to
public safety. Critically, the General Assembly has explicitly classified burglary
under R.C. 2911.12(A)(3) as an offense of violence. See R.C. 2901.01(A)(9)
(defining an “offense of violence” to include burglary under R.C. 2911.12(A)(3)).
{¶24} Moreover, notwithstanding McKenzie’s assertion that his specific
burglary conviction did not involve the actual presence of another person, the
unlawful invasion of property carries a persistent risk of confrontation because it
“can still pose a risk of harm when a person is present or likely to be present.” State
v. Butler, 2012-Ohio-4152, ¶ 8 (8th Dist.). See also United States v. Coleman, 655
F.3d 480, 481 (6th Cir. 2011) (holding that R.C. 2911.12(A)(3) is categorically a
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violent felony because the offense “creates a risk of physical injury that is similar
to the risk posed by generic burglary”); Williams, 113 F.4th at 659 (recognizing that
burglary justifies a finding of danger because the offense “creates the possibility of
a violent confrontation between the offender and occupant”). Disarming an
individual who has committed such an offense aligns with the historical tradition of
disarming those who pose a threat to public safety. See Thompson at ¶ 64, citing
King, 2024-Ohio-4585, at ¶ 32 (8th Dist.). Therefore, we conclude that R.C.
2923.13(A)(2) as applied to McKenzie “is consistent with the nation’s history and
tradition of firearm regulation and does not violate the Second Amendment.” Ball,
2026-Ohio-2051, at ¶ 10 (10th Dist.). See also Williams at 663 (concluding that an
individual who has committed a crime that “inherently poses a significant threat of
danger,” such as burglary, is considered dangerous and may be constitutionally
disarmed).
{¶25} Likewise, R.C. 2923.13(A)(3), in its relevant part, prohibits firearm
possession by a person who “is under indictment for or has been convicted of any
felony offense involving the illegal possession, use, sale, administration,
distribution, or trafficking in any drug of abuse . . . .” Regarding his prior conviction
for aggravated possession of drugs, courts have consistently found that drug
offenses indicate an individual is more likely to commit a future felony, marking
them as the sort of threat to public safety that a legislature can constitutionally
disarm. Skaggs, 2024-Ohio-4781, at ¶ 22 (5th Dist.). Specifically, “[t]he history
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and tradition relevant to the Second Amendment support the legislature’s power to
restrict the Second Amendment right of drug users, alcoholics, or the mentally ill to
carry firearms, and/or the history and tradition relevant to the Second Amendment
support the legislature’s power to disarm those the legislature deems dangerous.”
Id. at ¶ 31.
{¶26} Because this well-documented connection reliably marks an offender
as a distinct threat, McKenzie’s prior felony drug conviction establishes a
presumption of dangerousness that constitutionally justifies his disarmament,
regardless of whether he was actively under the influence at the time of his arrest.
See State v. Hodges, 2025-Ohio-5448, ¶ 18 (6th Dist.) (agreeing that “R.C.
2923.13(A)(3) is consistent with our Nation’s historical tradition of firearms
regulation and, thus, is constitutional on its face [and] as applied to non-violent drug
traffickers generally”); Williams at 659 (recognizing that drug trafficking inherently
poses a significant threat of danger to the community, justifying a finding of
dangerousness for purposes of disarmament).
{¶27} Once the presumption of dangerousness attaches, the defendant bears
the burden to “present clear and convincing evidence that he is no longer dangerous”
to succeed on an individualized as-applied challenge. Hodges at ¶ 21. However,
because McKenzie failed to raise this constitutional challenge in the trial court, he
forfeited the opportunity to develop the necessary factual record. See State v.
Roehrenbeck, 2026-Ohio-797, ¶ 35 (5th Dist.) (holding that “an as-applied
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constitutional challenge must be raised during the trial court proceedings to develop
a record demonstrating the particular facts supporting the constitutional challenge”).
Indeed, the record before this court is completely devoid of any evidence regarding
McKenzie’s current level of dangerousness or rehabilitation. As the Supreme Court
of Ohio has made clear, a defendant cannot demonstrate plain error on an as-applied
constitutional challenge using a silent record. See State v. Quarterman, 2014-Ohio4034, ¶ 16, 19 (declining to find plain error on an as-applied constitutional challenge
raised for the first time on appeal because the record was not sufficiently developed
to evaluate the claim). Consequently, McKenzie failed to establish that the statute
is unconstitutional as applied to him.
{¶28} Accordingly, because R.C. 2923.13(A) is constitutional both facially
and as applied to McKenzie, the trial court did not err, let alone commit plain error,
by failing to sua sponte dismiss the indictment.
{¶29} McKenzie’s first assignment of error is overruled.
Fourth Assignment of Error
Mr. McKenzie’s conviction for having a weapon under disability
was against the manifest weight of the evidence because the State
did not prove that Mr. McKenzie knew that the gun was a deadly
weapon. This error denied him his right to due process under the
Fifth and Fourteenth Amendments to the United States
Constitution and Section 16, Article I of the Ohio Constitution.
Ex. 6; Trial Tr. 166, 178, 190.
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Fifth Assignment of Error
Mr. McKenzie’s conviction for having a weapon under disability
lacks sufficient evidence because the State did not prove that Mr.
McKenzie knew that the gun was a deadly weapon. This error
denied him his right to due process under the Fifth and
Fourteenth Amendments to the United States Constitution and
Section 16, Article I of the Ohio Constitution. Judgment. Trial
Tr. 217.
{¶30} In his fourth and fifth assignments of error, McKenzie argues that his
having weapons while under disability conviction is based on insufficient evidence
and is against the manifest weight of the evidence.
Standard of Review
{¶31} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389
(1997). Therefore, we address each legal concept individually.
{¶32} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,
“[t]he relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the
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evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier of fact.” State v.
Jones, 2013-Ohio-4775, ¶ 33 (1st Dist.). See also State v. Berry, 2013-Ohio-2380,
¶ 19 (3d Dist.) (“Sufficiency of the evidence is a test of adequacy rather than
credibility or weight of the evidence.”), citing Thompkins at 386.
{¶33} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[] the evidence and all reasonable inferences, consider[] the credibility of
witnesses and determine[] whether in resolving conflicts in the evidence, the [trier
of fact] clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. State v. DeHass,
10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
Haller, 2012-Ohio-5233, ¶ 9 (3d Dist.), quoting State v. Hunter, 2011-Ohio-6524,
¶ 119.
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Analysis
{¶34} As an initial matter, the record reveals that McKenzie failed to renew
his Crim.R. 29(A) motion at the conclusion of his case-in-chief or at the conclusion
of all the evidence. “In order to preserve the issue of sufficiency on appeal, this
court has held that ‘[w]hen a defendant moves for acquittal at the close of the state’s
evidence and that motion is denied, the defendant waives any error which might
have occurred in overruling the motion by proceeding to introduce evidence in his
or her defense.’” State v. Hurley, 2014-Ohio-2716, ¶ 37 (3d Dist.), quoting State v.
Edwards, 2004-Ohio-4015, ¶ 6 (3d Dist.). “‘In order to preserve a sufficiency of
the evidence challenge on appeal once a defendant elects to present evidence on his
behalf, the defendant must renew his Crim.R. 29 motion at the close of all the
evidence.’” Id., quoting Edwards at ¶ 6. Based on this court’s precedent,
McKenzie’s failure to renew his Crim.R. 29(A) motion at the conclusion of his casein-chief or at the conclusion of all evidence waived all but plain error on appeal. Id.
{¶35} “However, ‘[w]hether a sufficiency of the evidence argument is
reviewed under a prejudicial error standard or under a plain error standard is
academic.’” Id. at ¶ 38. “Regardless of the standard used, ‘a conviction based on
legally insufficient evidence constitutes a denial of due process, and constitutes a
manifest injustice.’” Id., quoting Thompkins, 78 Ohio St.3d at 386-387.
Accordingly, we will proceed to determine whether the State presented sufficient
evidence to support McKenzie’s conviction. See id.
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{¶36} McKenzie was convicted of having a weapon while under disability in
violation of R.C. 2923.13(A)(2), which provides, “[u]nless 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 . . . [t]he person . . . has been
convicted of any felony offense of violence . . . .” Thus, to secure a conviction, the
State was required to prove that McKenzie knowingly acquired, had, carried, or used
a firearm while under a legal disability.
{¶37} “A person acts knowingly, regardless of purpose, when the person is
aware that the person’s conduct will probably cause a certain result or will probably
be of a certain nature.” R.C. 2901.22(B). “Whether a defendant acts knowingly can
only be determined, absent a defendant’s admission, from all the surrounding facts
and circumstances, including doing the act itself.” State v. Gross, 2019-Ohio-5304,
¶ 14 (5th Dist.).
{¶38} “‘Firearm’ means any deadly weapon capable of expelling or
propelling one or more projectiles by the action of an explosive or combustible
propellant [and] includes an unloaded firearm, and any firearm that is inoperable
but that can readily be rendered operable.” R.C. 2923.11(B)(1). See State v. Junod,
2019-Ohio-743, ¶ 25 (3d Dist.) (noting that a BB gun is not a firearm). The statute
does not require the State to prove that the defendant knew of their disability or
received notice of it. State v. Gatewood, 2021-Ohio-3325, ¶ 22 (1st Dist.).
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{¶39} Possession may be actual or constructive. State v. Bustamante, 2013-Ohio-4975, ¶ 25 (3d Dist.). Constructive possession requires evidence that the
defendant knowingly exercised dominion and control over the firearm, even if it
was not in their immediate physical possession. Id. Circumstantial evidence alone
can suffice to establish constructive possession. Id.
{¶40} On appeal, McKenzie argues that his conviction is not supported by
sufficient evidence because the State failed to prove the essential element that he
knowingly possessed a firearm. Specifically, he contends the State failed to produce
any evidence demonstrating that he knew that the weapon was a firearm rather than
a BB gun.
{¶41} Viewing the evidence in a light most favorable to the prosecution, we
conclude that McKenzie’s conviction for having weapons while under disability is
based on sufficient evidence. To establish that a defendant knowingly possessed a
prohibited weapon, the State must prove only that the defendant knew, or was aware
of the probability, that the item in his possession was dangerous. State v. Jordan,
89 Ohio St.3d 488, 494-495 (2000). Crucially, the State is not required to prove
that the defendant knew the specific characteristics that classified the item as a
firearm. See id. at 494. Thus, even if a defendant claims he did not know for certain
what the item was, the State may still prove his culpability through objective
demonstrations of his mental state and permissible inferences drawn from the
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surrounding facts. State v. Patterson, 2026-Ohio-1768, ¶ 25 (8th Dist.), citing
Jordan at 495.
{¶42} In this case, the State presented sufficient circumstantial evidence
demonstrating that McKenzie knowingly exercised dominion and control over the
firearm and was aware of its nature. Indeed, Looper testified on behalf of the State
that he picked McKenzie up at his residence on the morning of the incident and
observed him approach the vehicle carrying the rifle “wrapped up in a jacket, or a
sweatshirt, or something.” (Tr. at 183). Upon entering the vehicle, McKenzie
requested that Looper take him to a specific location to “see if he could sell what he
had.” (Id.). When the prospective buyer declined to purchase the firearm,
McKenzie returned to the vehicle and placed the weapon in the front seat. (Id. at
186). Looper further testified that, when they were subsequently stopped by law
enforcement, McKenzie attempted to conceal the firearm by “covering it up and
putting it down underneath the” seat. (Id. at 187).
{¶43} Further, Patrolman Logan Patton (“Patrolman Patton”) of the Lima
Police Department testified that he conducted the traffic stop of the vehicle and
learned that both Looper and McKenzie had active warrants for their arrest. After
McKenzie was placed under arrest and exited the vehicle, Looper consented to a
search of the vehicle. Patrolman Patton testified that he observed “the top part of a
firearm sticking out from under the seat” where McKenzie had been sitting. (Tr. at
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164). He further testified that it was immediately apparent to him that the item was
a firearm, though McKenzie claimed at the scene that he was told it was a BB gun.
{¶44} Detective Jesse Harrod (“Detective Harrod”) of the Lima Police
Department later interviewed McKenzie regarding the incident, during which
McKenzie admitted that he knew that the firearm was in the vehicle but claimed that
he thought it was a BB gun. At the close of the State’s evidence, the parties
stipulated that the rifle was a firearm within the meaning of the statute.
{¶45} While McKenzie claimed that he believed the weapon was merely a
BB gun, the jury could reasonably infer from his objective actions and statements
that he knew it was a firearm. See Patterson, 2026-Ohio-1768, at ¶ 29 (8th Dist.);
State v. Stadmire, 2003-Ohio-873, ¶ 46-48 (8th Dist.) (rejecting the defendant’s
claim that he only possessed a BB gun, and noting that the State can prove an item
is a firearm through circumstantial evidence, such as testimony that the weapon was
wrapped in a shirt). That is, the jury could infer McKenzie’s culpable mental state
from his attempts to obscure the weapon in a jacket or sweatshirt, his efforts to sell
it, and his attempt to conceal it under his seat when approached by police. See State
v. Palmer, 2023-Ohio-4110, ¶ 15 (9th Dist.) (determining that a jury could
reasonably infer a defendant possessed a firearm based on circumstantial evidence
of his nervous behavior and physical attempts to conceal the weapon from police).
{¶46} Consequently, viewing the evidence in a light most favorable to the
State, any rational trier of fact could have found that the State proved that McKenzie
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knowingly possessed the firearm. McKenzie’s conviction is therefore supported by
sufficient evidence.
{¶47} Having concluded that McKenzie’s having weapons while under
disability conviction is based on sufficient evidence, we next address McKenzie’s
argument that his having weapons while under disability conviction is against the
manifest weight of the evidence. In support of his manifest-weight-of-the-evidence
argument, McKenzie asserts that the jury clearly lost its way by relying on the
testimony of Looper. McKenzie argues that Looper’s testimony was inconsistent
and self-serving, noting that Looper had a clear motive to deflect ownership of the
firearm away from himself. Furthermore, McKenzie contends that the State’s
evidence failed to overcome his own consistent assertions that he believed the
weapon was merely a BB gun—a belief that was initially shared by Looper himself.
Consequently, he argues that the verdict resulted in a manifest miscarriage of
justice.
{¶48} “Although we review credibility when considering the manifest
weight of the evidence, the credibility of witnesses is primarily a determination for
the trier of fact.” State v. Banks, 2011-Ohio-5671, ¶ 13 (8th Dist.), citing DeHass,
10 Ohio St.2d 230, at paragraph one of the syllabus. “The trier of fact is best able
‘to view the witnesses and observe their demeanor, gestures[,] and voice inflections,
and use these observations in weighing the credibility of the proffered testimony.’”
Id., quoting State v. Wilson, 2007-Ohio-2202, ¶ 24.
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{¶49} While McKenzie argues that Looper had a motive to lie and that his
testimony was self-serving, the jury was fully aware of Looper’s position as the
driver of the vehicle and his own legal disabilities. See, e.g., State v. Suffel, 2015-Ohio-222, ¶ 33 (3d Dist.) (noting that we must be “mindful of the jury’s ‘superior
first-hand perspective in judging the demeanor and credibility of witnesses’”),
quoting State v. Phillips, 2014-Ohio-5162, ¶ 125 (10th Dist.), citing DeHass at
paragraph one of the syllabus. Indeed, the defense had the opportunity to crossexamine Looper and highlight these potential motives to the jury. See State v.
Schoewe, 2023-Ohio-1598, ¶ 33 (6th Dist.) (rejecting a manifest weight challenge
based on witness bias because the witness “was subjected to a thorough crossexamination, and the jury was able to judge for itself what weight, if any, to extend
to her testimony”).
{¶50} Furthermore, the jury was not required to accept McKenzie’s denials
at face value. See, e.g., State v. Voll, 2012-Ohio-3900, ¶ 27 (3d Dist.)
(acknowledging that “it is well within the province of the trier-of-fact to determine
[a witness’s] credibility in making those statements including the prerogative to find
[a witness’s] denials not to be truthful”). Specifically during the trial, the State
played the video recording of Detective Harrod’s interview with McKenzie. This
allowed the jury to independently observe McKenzie’s demeanor, evaluate his tone,
and assess the veracity of his claim that he believed the firearm was a BB gun.
Crucially, the jury was able to take into consideration the entirety of that interaction,
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including the fact that, by the end of the interview, Detective Harrod explicitly
pointed out to McKenzie that his story had changed throughout their conversation
and told McKenzie that he did not believe him. Given these inconsistencies, the
jury was well within its province to reject McKenzie’s explanation and credit the
State’s evidence.
{¶51} Accordingly, having reviewed the entire record, we cannot say that the
jury clearly lost its way and created such a manifest miscarriage of justice that
McKenzie’s conviction must be reversed and a new trial ordered. Therefore,
McKenzie’s conviction for having weapons while under disability is not against the
manifest weight of the evidence.
{¶52} Accordingly, McKenzie’s fourth and fifth assignments of error are
overruled.
Second Assignment of Error
Mr. McKenzie’s trial counsel rendered ineffective assistance of
counsel under the Fifth, Sixth and Fourteenth Amendments of the
United States Constitution, and Article I, Sections 9 and 10 of the
Ohio Constitution, by failing to challenge or preserve the issue of
constitutional validity of Mr. McKenzie’s indictment under the
Second Amendment. Indictment (May 15, 2025); Judgment Entry
of Conviction (Oct. 22, 2025).
Third Assignment of Error
Mr. McKenzie’s trial counsel rendered ineffective assistance of
counsel under the Fifth, Sixth and Fourteenth Amendments of the
United States Constitution, and Article I, Sections 9 and 10 of the
Ohio Constitution by failing to object and/or to move to strike
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Detective Harrod’s testimony opining that Mr. McKenzie
possessed the gun. Trial Tr. 204, 210.
{¶53} In his second and third assignments of error, McKenzie argues that his
trial counsel was ineffective. Specifically, McKenzie argues that his trial counsel
was ineffective for failing to challenge the constitutionality of Ohio’s having
weapons while under disability statute under the Second Amendment and for failing
to object to Detective Harrod’s opinion testimony that McKenzie possessed the
firearm.
Standard of Review
{¶54} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) the counsel’s performance was deficient or unreasonable under the
circumstances; and (2) the deficient performance prejudiced the defendant. State v.
Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,
687 (1984). In order to show counsel’s conduct was deficient or unreasonable, the
defendant must overcome the presumption that counsel provided competent
representation and must show that counsel’s actions were not trial strategies
prompted by reasonable professional judgment. Strickland at 687. Counsel is
entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998).
Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute
ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995). Rather, the
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errors complained of must amount to a substantial violation of counsel’s essential
duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989),
quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on other
grounds, 438 U.S. 910 (1978).
{¶55} “Prejudice results when ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” State v. Liles, 2014-Ohio-259, ¶ 48 (3d Dist.), quoting Bradley at 142,
citing Strickland at 691. “‘A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id., quoting Bradley at 142 and citing
Strickland at 694.
Analysis
{¶56} Based on our resolution of McKenzie’s first assignment of error
rejecting his constitutional challenge, his trial counsel was not ineffective for failing
to challenge the constitutionality of Ohio’s having weapons while under disability
statute under the Second Amendment.
{¶57} Turning to McKenzie’s contention that his trial counsel was
ineffective for failing to object to Detective Harrod’s testimony, McKenzie argues
that trial counsel should have objected to Detective Harrod’s statements opining that
McKenzie possessed the firearm. Stated another way, McKenzie contends that
Detective Harrod’s testimony impermissibly infringed on the jury’s fact-finding
function by offering an opinion on the ultimate issue of guilt.
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{¶58} “The ‘failure to object to error, alone, is not enough to sustain a claim
of ineffective assistance of counsel.’” Liles, 2014-Ohio-259, at ¶ 49 (3d Dist.),
quoting State v. Johnson, 2006-Ohio-6404, ¶ 139, citing State v. Holloway, 38 Ohio
St.3d 239, 244 (1988). “Because ‘objections tend to disrupt the flow of a trial, and
are considered technical and bothersome by the fact-finder,’ competent counsel may
reasonably hesitate to object in the jury’s presence.” State v. Campbell, 69 Ohio
St.3d 38, 53 (1994), quoting Jacobs, Ohio Evidence, at iii-iv (1989). “To prevail on
such a claim, a defendant must first show that there was a substantial violation of
any of defense counsel’s essential duties to his client and, second, that he was
materially prejudiced by counsel’s ineffectiveness.” Holloway at 244.
{¶59} “In general, opinion testimony of a police officer about the guilt of the
defendant is inadmissible.” State v. Ruble, 2017-Ohio-7259, ¶ 58 (4th Dist.). “That
is, ‘[a] police officer’s opinion that an accused is being untruthful is inadmissible.’”
Id., quoting State v. Davis, 2008-Ohio-2, ¶ 122. However, “[a] police officer may
give lay opinion based upon his perception of evidence at the scene.” State v.
Phillips, 2017-Ohio-1284, ¶ 44 (8th Dist.), citing State v. Drummond, 2006-Ohio5084, ¶ 222 and Evid.R. 701.
{¶60} In this case, McKenzie’s trial counsel was not ineffective for failing to
object to Detective Harrod’s testimony that McKenzie possessed the firearm. At
trial, Detective Harrod was questioned about the lack of forensic testing on the
firearm. Explaining his investigative decision not to submit the weapon for DNA
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analysis, Detective Harrod testified that his decision was based on a combination of
factors. First, he observed on the video that the weapon had been handled by several
officers and was therefore not “preserved for DNA.” (Tr. at 204). Second, because
the weapon was in plain view, he did not question who it belonged to, testifying that
“with the gun sticking so far out from underneath the seat[, he] didn’t think there
was [a] possibility that it wasn’t Mr. McKenzie’s, [or] that he wasn’t aware that it
was underneath the seat.” (Id.). Detective Harrod further testified that, because “so
much of the gun [was] obviously visible,” he “didn’t think it was necessary to send
it” for testing. (Id.). During cross-examination, Detective Harrod reiterated this
rationale, testifying that, “after [he] watched the body cam[, he] believe[d] that is
possession when [the firearm] is obviously sticking out from underneath his seat.”
(Id. at 210).
{¶61} Critically, Detective Harrod’s testimony was about the investigative
steps that he took based on his perception of the evidence. Compare Drummond at
¶ 222 (concluding that “[t]rial counsel’s failure to object was not deficient because
the testimony was proper” since the law enforcement officer’s “testimony was lay
opinion based upon his perception of evidence at the . . . residence”). In other words,
Detective Harrod was not instructing the jury to find McKenzie guilty; rather, he
was explaining his rationale for concluding the forensic investigation. That is, his
testimony reflected his professional judgment that, at that stage of the investigation,
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the body camera footage had already established a sufficient link to justify charging
McKenzie without the need for DNA testing.
{¶62} Even if the testimony constitutes improper opinion testimony,
McKenzie cannot demonstrate the requisite prejudice to prevail on his claim. As
we addressed in McKenzie’s fourth and fifth assignments of error, the State
presented ample independent, circumstantial evidence from which the jury could
conclude that he knowingly possessed the firearm. Compare id. at ¶ 222. Thus,
there is no reasonable probability that, but for the admission of Detective Harrod’s
testimony, the outcome of the trial would have been different. See State v. Stoermer,
2018-Ohio-4522, ¶ 45 (2d Dist.) (“Even assuming that [the detective’s] testimony
was improper, we are unable to say that there is a reasonable probability that the
result of the trial would have been different but for this testimony.”).
{¶63} For these reasons, McKenzie’s trial counsel was not ineffective.
{¶64} McKenzie’s second and third assignments of error are overruled.
{¶65} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER and WALDICK, J.J., concur.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this Court, the assignments of error
are overruled and it is the judgment and order of this Court that the judgment of the
trial court is affirmed with costs assessed to Appellant for which judgment is hereby
rendered. The cause is hereby remanded to the trial court for execution of the
judgment for costs.
It is further ordered that the Clerk of this Court certify a copy of this Court’s
judgment entry and opinion to the trial court as the mandate prescribed by App.R.
27; and serve a copy of this Court’s judgment entry and opinion on each party to the
proceedings and note the date of service in the docket. See App.R. 30.
William R. Zimmerman, Judge
Mark C. Miller, Judge
Juergen A. Waldick, Judge
DATED:
/hls
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