March 27, 2013
Shooting From Cars

by Justice Paul E. Pfeifer

Michael Swidas and Ulysses “Cory” Altizer had a history of physical confrontations. One night, at a place called Horvath’s Pub, the feud between the two escalated badly, and the resulting legal case ended up coming before us – the Supreme Court of Ohio.

That night, Altizer was already at Horvath’s with Joe Naples when Swidas arrived. The two exchanged brief unpleasantries (Altizer: “Hey Sweets, how you doin’?”  Swidas: “Better than you”), and then Altizer went into the restroom. When he emerged, Swidas was gone. A bit later, Altizer and Naples left, too.

Swidas’s car was backed into an angled parking spot facing Horvath’s. Swidas testified that he heard Altizer and Naples approaching him when he was opening the driver’s door; they were charging at him and he thought they were going to try to attack him and rob him.

He reached for the gun under the driver’s seat and started firing. Swidas testified that when he fired his gun, the open car door was between him and Altizer. Altizer was in front of and to the right of Swidas’s car. Swidas fired five shots – hitting Altizer once in the hand, damaging a finger – then jumped into his car and drove off.

Altizer corroborated Swidas’s testimony about Swidas’s position near the car at the time of the shooting. He described Swidas as being on the driver’s side of the car behind the open door – “between the door and the vehicle, like it ... was a shield.” In relation to the door, he described Swidas as being “like in the corner” where the hinges are. Altizer testified, “He was over the windshield of the car a little bit, and pointing a gun at me, shooting.”

Swidas’s location when he fired the gun makes a significant difference because Ohio has a law – we’ll call it the car-shooting law – which says that a person firing shots “from a motor vehicle” is subject to a mandatory, five-year prison term.

At trial, Swidas’s attorney filed a motion to dismiss that portion of the charge, arguing that the evidence showed that Swidas was outside the car when he fired the shots, and that the law isn’t applicable if he wasn’t inside the car.

But the trial court denied the motion, stating that if the legislature had intended the car to be in motion, or if it intended the shooter to be occupying the car, it could have written the law that way. When the case went to the jury, the court instructed the jurors that they had to decide whether Swidas committed the offense by discharging a firearm from a motor vehicle.

The jury acquitted Swidas on the charge of attempted murder but convicted him on – among other charges – two counts of felonious assault with two firearm specifications each, including shooting from the vehicle. He was sentenced to 22 years’ imprisonment, which included the mandatory five-year term under the car-shooting law.

When Swidas appealed his convictions, one of his arguments was that the car-shooting law was unconstitutionally vague. The court of appeals rejected this argument, holding that the law is “plain on its face,” and all that’s required is that the firearm is discharged from a motor vehicle.

When the case came before us, we had to consider this question: Is the car-shooting law applicable when a defendant is standing outside his vehicle? The court of appeals stated that the law is not limited to “drive-by” shootings. But does it apply to “stand-by” shootings?

To begin, we had to determine what the word “from” means in the phrase “from a motor vehicle.” Two dictionaries – Webster’s Third New International Dictionary and the Oxford English Dictionary – refer to a “point” or “place” from which something departs. In the car-shooting law, that point or place is a “motor vehicle.” That place is not “the vicinity of a motor vehicle” or “near a motor vehicle.” The law requires that the starting point of the activity is the motor vehicle itself.

But a motor vehicle cannot fire a weapon; the law applies to people. For the point of the discharge to be the car, then, the person firing the gun must have a substantial physical connection to the car.

If a person were in or on a car to the extent that the car was providing substantial support to the person, the point of that person’s firing would be the motor vehicle. Without a substantial physical connection to the car, a shooter cannot be said to have fired a shot that commenced from the motor vehicle.

The state didn’t rely on physical contact with the car to make its case; instead, it basically argued that the vehicle was the instrumentality of the crime. That’s the same reasoning that the trial court used in denying Swidas’s motion to dismiss.

The state argued that the car was “the starting point” from which Swidas staged his attack, that it was the “origin from which” Swidas retrieved his gun, that it provided “protection and concealment” for Swidas, and that it was the means by which he “was able to make a rapid escape from the crime scene.”

All those statements were true, and all were supported by testimony. But none were relevant to the car-shooting law. The key to a violation of the car-shooting law is the location of the shooter at the time of the shooting. In this case, there is no evidence suggesting that Swidas had even incidental contact with the car when he fired his gun.  The “from” in this case is a spot next to the car.

We therefore concluded – by a seven-to-zero vote – that the car-shooting law is not applicable when a defendant fires a weapon while standing with both feet planted on the ground with no substantial physical connection with a motor vehicle. We reversed the decision of the court of appeals, vacated Swidas’s five-year sentence on the firearm specification under the car-shooting law, and sent the matter to the trial court for resentencing.

EDITOR'S NOTE: The case referred to is State v. Swidas, 133 Ohio St.3d 460, 2012-Ohio-4638. Case No. 2011-0244. Decided October 11, 2012. Majority opinion written by Justice Paul E. Pfeifer.