Possessing Criminal Tools
Defending Clients Facing Criminal Tools Possession Charges
From a revolver to a flashlight, nearly anything can qualify as a criminal tool in Ohio. An alleged offender’s mens rea (or criminal intent) is the crux of a criminal tools prosecution under Ohio Code 2923.24. This means “any substance, device, instrument, or article” is a criminal tool if the alleged offender intended to use it for a criminal purpose. Prosecutors typically charge offenders with possessing criminal tools to strengthen an indictment and induce a plea or because they’re unable to charge you with the underlying crime. Sometimes this isn’t constitutional. The Ohio criminal tools statute is exceptionally broad, and this can work both for and against prosecutors. With the help of an experienced Ohio criminal defense attorney at the Joslyn Law Firm, we may be able to defeat the mens rea necessary for a criminal tools conviction. Discuss your legal defense today by calling (614) 444-1900 or contact us online for a free criminal tools defense consultation.
Ohio Information Center for Possessing Criminal Tools (Ohio Code 2923.24)
Have you been charged with possessing criminal tools in Ohio? Take advantage of the Joslyn Law Firm’s free criminal tools case analysis and consultation. Section 2923.24 charges are heavily fact-based, and prosecutors may file them illegally or anticipating discovery will reveal criminal activity. For general information about criminal tools charges in Ohio, consult our Ohio criminal tools information center.
- Proving Possession of Criminal Tools in Ohio
- Types of Criminal Tools Recognized in Ohio
- Merging Criminal Tools-Based Offenses
- Penalties for Possessing Criminal Tools Under Ohio Code 2923.24
- Defenses to Ohio Criminal Tools Charges
1. Proving Possession of Criminal Tools in Ohio
Ohio Code 2923.24 criminalizes the possession and/or control of any substance or item if the possessor intends to use it criminally. Possession of criminal tools (“PCT”) charges require evidence:
- That the item at issue was a substance, device, instrument, or article
- That the allegedly criminal item was in your possession or control
- At the time the item was in your control, you had a purpose “to use it criminally”
This is a broad statute that requires “specific intent.” This means that it requires proof that your cognitive intent was criminal beyond a reasonable doubt. This is difficult to prove when a crime hasn’t been attempted or committed. As such, the Ohio criminal tools statute gives prosecutors a legal boost. It states that evidence of any of the following is considered prima-facie evidence of criminal intent. This means the burden of proof shifts to the defendant to prove the use was not criminal:
- Possession/control of any dangerous ordnance or the materials for making dangerous ordnances without legal authorization – dangerous ordnances in Ohio include explosive devices, sawed-off shotguns, explosive chemicals, rocket launchers, mufflers, military-issue devices, and similar items
- Possession/control of an item designed or specially adapted for criminal use, i.e., a taped-up flashlight
- Possession/control of an item “commonly used for criminal purposes, under circumstances indicating the item is intended for criminal use” – a firearm, crowbar, or burner phone
Because dangerous ordnances are highly regulated and often illegal, evidence of possession acts as evidence of criminal intent under the PCT statute. Defendants must present evidence sufficient to establish a non-criminal purpose in order to defeat this type of prosecution, but that won’t protect you from illegal possession charges. As to the remaining prima facie categories, the language is broad and subject to constitutional challenge.
For example, nearly every household has a screwdriver, but these are commonly used for burglary. The prosecutor must have additional circumstantial evidence to charge someone with criminal possession of a screwdriver under this category. For example, the screwdriver was found in a box with a ski mask and gloves. It’s also difficult to prove an item was designed for criminal use without expert testimony. Examples may include malware, but a qualified defense attorney can argue that a “program” is not a “substance, device, instrument, or article” under the statute.
2. Types of Criminal Tools Recognized in Ohio
Dangerous ordnances, as defined by Ohio’s weapons control statute, are automatically recognized as criminal tools in Ohio. These include, but are not limited to:
- zip guns
- plastic explosives
- artillery pieces
- military-issue firearms
- firearm mufflers or suppressors
Dangerous ordnances do not include antique weapons, such as those manufactured prior to 1887 or those using black powder, firearms suitable and commonly used for sporting purposes, or museum pieces. It’s harder to define criminal tools that are “adapted” or “commonly used.” Whether items fall into these categories typically depends on the facts of each case as established by Ohio case law. Examples of common law criminal tools gathered by the Ohio Public Defender’s Office include:
- a taped over flashlight
- gambling devices
- drug abuse and trafficking paraphernalia
- possession of unauthorized medical devices, such as a syringe
- computers and computer terminals
- a tree branch
- cash and pagers indicating a drug trafficking operation
Most of these tools are not criminal on their own but must be combined with additional evidence of criminal intent. For example, a crowbar was considered a criminal tool because when found hanging from a defendant’s hidden belt loop with other criminal items. An automobile, however, was not considered a criminal tool when used for the solicitation of sexual services to disproportionately enhance a prostitution charge. Tire irons were also not considered criminal tools when no one witnessed their criminal use, and they were found at a tire repair shop.
3. Merging Criminal Tools-Based Offenses
When possession of a criminal tool is a necessary element of another charged offense, the offenses “merge” under Ohio law. See State v. Houston, 26 Ohio App. 3d 26 (1985). For example, defendants cannot be charged with armed robbery and PCT for controlling the shotgun. Because the firearm is a necessary element of armed robbery, the prosecution can only move forward with the more serious charge.
Stacking these charges creates constitutional disproportionality in sentencing, which is illegal in Ohio. Because PTC is often a lesser-included offense for certain felony charges, prosecutors may negotiate a plea deal dropping the more serious charges to a PTC offense, but it cannot stack mergeable offenses to unconstitutionally increase a sentence.
4. Penalties for Possessing Criminal Tools Under Ohio Code 2923.24
A PCT conviction is punishable in accordance with your criminal intent. If the intent was to commit a non-felony, i.e., misdemeanor or unspecified crime, PCT is a misdemeanor in the first-degree. First-degree misdemeanors are punishable by up to 6 months in prison and/or a $1,000 fine, but judges have considerable discretion during sentencing. If the underlying criminal intent was felonious, then PCT is a fifth-degree felony.
Felonies in the fifth degree are punishable by up to 12 months of imprisonment and/or up to a $2,500 fine. For felonious PCT, the prosecutor must prove your “intent” was to use the criminal tool to commit a felony-level offense. This is difficult to prove when certain offenses, such as drug crimes, are punishable as either misdemeanors or felonies depending on the facts of each case. In such situations, an experienced Ohio criminal defense attorney will argue that the rule of lenity requires the court to assume the lowest-level offense.
5. Defenses to Ohio Criminal Tools Charges
Ohio defendants often bring constitutional challenges when charged with PCT. Disproportional over sentencing and overly broad interpretations of the PCT statute have been held unconstitutional in Ohio. Illegal possession alone is not sufficient to sustain a PCT charge. For example, illegal possession of a handgun cannot sustain a PCT charge when the alleged criminal purpose is the illegal possession itself. The criminal purpose must be separate from illegal possession of criminal tools. If not, this may be unconstitutional overcharging.
Over-broad interpretations of criminal statutes are also unconstitutional. A defendant must have reasonable notice of what constitutes a crime, and just because a vehicle can be used during the commission of a crime doesn’t make it a criminal tool. In fact, if the alleged criminal tool is an everyday item such as a car, cell phone, or house key, prosecutors need additional evidence to support a PCT charge. This may include eyewitness testimony of criminal use, or circumstantial evidence that a “burner phone” was used exclusively for criminal conduct.
Possession of items not falling into one of the prima facie categories of criminal tools requires proof of criminal intent beyond a reasonable doubt. It’s very difficult to prove the mens rea necessary for a PCT charge when the tool does not fall into one of the three prima facie categories articulated by Ohio Code 2923.24, and any showing of legitimate use may be sufficient to defeat the charge. Additional defenses include challenging an essential element of the crime, such as possession. Prosecutors must show that the criminal tool was in your possession or control when the criminal intent was formed. Evidence that the tools were found in a common area is not sufficient for a PCT conviction.
If the alleged criminal tool was not found on your person or property, prosecutors need additional evidence of possession or control. They must also link the possession to criminal use. Eyewitness testimony that a defendant utilized a screwdriver to break into a home may be sufficient, but testimony that he brought a screwdriver out to his car the night of the crime may not be sufficient. An experienced Ohio criminal tools defense attorney can also argue the item had a legal purpose or the alleged criminal tool is not a device covered by the PCT statute. The facts and circumstances of your case will dictate the appropriateness and constitutionality of a PCT charge in Ohio, as well as the defenses available to you.
Contact an Ohio Criminal Tools Possession Defense Lawyer Right Away
You should always take criminal charges seriously, including the possession of criminal tools. You should never hesitate to contact an experienced criminal defense attorney at the Joslyn Law Firm to start on your defense and learn about your options. Please don’t hesitate to call (614) 444-1900 or contact us online for more information about your weapons charge today.