State v. Durbin , 2012 Ohio 301 ( 2012 )

[Cite as State v. Durbin, 2012-Ohio-301.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 10CA0136-M
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
KENNETH F. DURBIN MEDINA MUNICIPAL COURT
COUNTY OF MEDINA, OHIO
Appellee CASE No. 10 CRB 01212
DECISION AND JOURNAL ENTRY
Dated: January 30, 2012
MOORE, Judge.
{¶1} Appellant, the State of Ohio, appeals from the judgment of the Medina Municipal
Court. This Court affirms in part and reverses in part.
I.
{¶2} On August 22, 2010, Deputy Douglas Clinage of the Medina County Sherriff’s
Office responded to a fireworks complaint at the home of Robert Durbin, Appellee’s father.
When he arrived, Mr. Durbin showed him ten “fireworks” that he had found in his barn and that
he believed belonged to his son, Appellee. Deputy Clinage then spoke with Appellee about the
items. Appellee claimed the items as his own and told the deputy that he likes to “set them off”
in the woods. The deputy photographed the items found in the barn, and then took the items
back to the Sherriff’s Office, where he soaked and destroyed them. After speaking with Mr.
Durbin and Appellee, Deputy Clinage issued a citation to Appellee for possession of fireworks in
violation R.C. 3743.65(A).
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{¶3} The case proceeded to a jury trial. The State provided the testimony of Appellee’s
father and Deputy Clinage, who testified that the items found were “fireworks” and that Appellee
had acknowledged his ownership of the items.
{¶4} At the close of the State’s evidence, Appellee moved to dismiss pursuant to
Crim.R. 29. The trial court determined that the State had failed to present evidence sufficient to
meet each element of the offense as set forth in R.C. 3743.65(A), specifically that the State had
failed to provide evidence as to the inapplicability of the exceptions provisions of the statute, and
granted Appellee’s motion.
{¶5} The State timely filed a notice of appeal and a leave to appeal pursuant to App.R.
5(C). This Court granted the State’s leave to appeal pursuant to the holding in State v. Bistricky,
51 Ohio St. 3d 157 (1990), syllabus. The State raises one assignment of error for our review.
II.
{¶6} The Ohio Supreme Court has held that “[a] directed verdict of acquittal by the
trial judge in a criminal case is a ‘final verdict’ within the meaning of R.C. 2945.67(A)[.]” State
v. Keeton, 18 Ohio St. 3d 379 (1985), paragraph two of the syllabus. Ordinarily the State is not
afforded the right to appeal from a judgment of acquittal, as reversal of a judgment of acquittal
would permit the state to try a defendant a second time. U.S. v. Martin Linen Supply Co., 430
U.S. 564, 589 (1977). “[T]he principles of double jeopardy preclude retrial of [a defendant].”
State v. Davis, 5th Dist. No. 03 CA-A-07038, 2004-Ohio-2804, at ¶ 8. R.C. 2945.67(A),
however, grants the State the right to appeal “by leave of the court to which the appeal is taken
any other decision, except the final verdict, of the trial court in a criminal case[.]”
{¶7} Even though the State may not appeal the final verdict in a criminal case, the issue
is not moot if “the underlying legal question is capable of repetition yet evading review.” Id. at
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¶9, quoting Storer v. Brown, 415 U.S. 724, 737 (1974), fn. 8. Thus, the Ohio Supreme Court has
held that “[a] court of appeals has discretionary authority pursuant to R.C. 2945.67(A) to review
substantive law rulings made in a criminal case which result in a judgment of acquittal so long as
the judgment itself is not appealed.” Bistricky, 51 Ohio St. 3d 157, syllabus.
{¶8} “Substantive law” is defined as “[t]he part of the law that creates, defines, and
regulates the rights, duties, and powers of parties.” Black’s Law Dictionary, (8 Ed. 2004) 1470.
The trial court here determined that certain exceptions set forth in R.C. 3743.65(A) and 3743.80
are elements of the offense of illegal possession of fireworks, which the State must prove beyond
a reasonable doubt. This is a substantive ruling in that it determines the duty of the State in its
prosecutions for this offense.
{¶9} Next, we note that the State is not appealing from the final verdict itself.
Specifically, the State has requested only that this Court address whether the exceptions listed in
R.C. 3743.65(A) and 3743.80 constitute “elements of the offense,” for which the State bears the
burden of proof, or whether these exceptions constitute “affirmative defenses,” for which a
defendant bears the burden of proof. With regard to this issue, we conclude that the State is
appealing a decision other than the final verdict of acquittal. Bistricky, 51 Ohio St.3d at syllabus.
Accordingly, we conclude that the assignment of error raised by the State is properly before us.
ASSIGNMENT OF ERROR
“THE TRIAL COURT IMPROPERLY PLACED UPON [THE] STATE [] THE
BURDEN OF ESTABLISHING PROOF WITH RESPECT TO MATTERS
THAT ARE AFFIRMATIVE DEFENSES AVAILABLE TO []APPELLEE.”
{¶10} In its sole assignment of error, the State argues that once it had provided sufficient
evidence that Appellee was in possession of “fireworks,” it met its burden under R.C.
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3743.65(A), and the burden then shifted to Appellee to prove that an exception set forth within
3743.65(A) or 3743.80 applied.
{¶11} R.C. 3743.01(F) defines a firework as “any composition or device prepared for
the purpose of producing a visible or an audible effect by combustion, deflagration, or
detonation, except ordinary matches and except as provided in section 3743.80 of the Revised
Code.” R.C. 3743.80 provides,
This chapter does not prohibit or apply to the following:
(A) The manufacture, sale, possession, transportation, storage, or use in
emergency situations, of pyrotechnic signaling devices and distress signals for
marine, aviation, or highway use;
(B) The manufacture, sale, possession, transportation, storage, or use of fuses,
torpedoes, or other signals necessary for the safe operation of railroads;
(C) The manufacture, sale, possession, transportation, storage, or use of blank
cartridges in connection with theaters or shows, or in connection with athletics as
signals or for ceremonial purposes;
(D) The manufacture for, the transportation, storage, possession, or use by, or sale
to the armed forces of the United States and the militia of this state of pyrotechnic
devices;
(E) The manufacture, sale, possession, transportation, storage, or use of toy
pistols, toy canes, toy guns, or other devices in which paper or plastic caps
containing twenty-five hundredths grains or less of explosive material are used,
provided that they are constructed so that a hand cannot come into contact with a
cap when it is in place for explosion, or apply to the manufacture, sale,
possession, transportation, storage, or use of those caps;
(F) The manufacture, sale, possession, transportation, storage, or use of novelties
and trick noisemakers, auto burglar alarms, or model rockets and model rocket
motors designed, sold, and used for the purpose of propelling recoverable aero
models;
(G) The manufacture, sale, possession, transportation, storage, or use of wire
sparklers.
(H) The conduct of radio-controlled special effect exhibitions that use an
explosive black powder charge of not more than one-quarter pound per charge,
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and that are not connected in any manner to propellant charges, provided that the
exhibition complies with all of following:
(1) No explosive aerial display is conducted in the exhibition;
(2) The exhibition is separated from spectators by not less than two hundred feet;
(3) The person conducting the exhibition complies with regulations of the bureau
of alcohol, tobacco, and firearms of the United States department of the treasury
and the United States department of transportation with respect to the storage and
transport of the explosive black powder used in the exhibition.
{¶12} Pursuant to R.C. 3743.65(A),
No person shall possess fireworks in the state or shall possess for sale or sell
fireworks in this state, except [1] a licensed manufacturer of fireworks as
authorized by sections 3743.02 to 3743.08 of the Revised Code, [2] a licensed
wholesaler of fireworks as authorized by sections 3743.15 to 3743.21 of the
Revised Code, [3] a shipping permit holder as authorized by section 3743.40 of
the Revised Code, [4] an out-of-state resident as authorized by section 3743.44 of
the Revised Code, [5] a resident of this state as authorized by section 3743.45 of
the Revised Code, or [6] a licensed exhibitor of fireworks as authorized by
sections 3743.50 to 3743.55 of the Revised Code, and [7] except as provided in
section 3743.80 of the Revised Code.1
{¶13} Here, the trial court determined that the State bore the burden of proving that
certain exceptions set forth in R.C. 3743.65(A) did not apply to Appellee. Further, the trial court
determined that the State bore the burden of proving that the exceptions set forth in R.C. 3743.80
did not apply to Appellee. See R.C. 3743.65(A)[7] (excluding the provisions of R.C. 3743.80
from the prohibition of possession of fireworks), and R.C. 3743.01(F) (excluding the provisions
of R.C. 3743.80 from the definition of “fireworks”). The State argues that the trial court
incorrectly placed this burden upon the State because these exceptions constitute affirmative
defenses.
{¶14} Pursuant to R.C. 2901.05(A),
1
Bracketed numbers have been inserted for ease of discussion as to the exceptions
contained in R.C. 3743.65(A).
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Every person accused of an offense is presumed innocent until proven guilty
beyond a reasonable doubt, and the burden of proof for all elements of the offense
is upon the prosecution. The burden of going forward with the evidence of an
affirmative defense, and the burden of proof, by a preponderance of the evidence,
for an affirmative defense, is upon the accused.
{¶15} R.C. 2901.05(D) defines an “affirmative defense” as either “[a] defense expressly
designated as [an] affirmative defense[],” or “[a] defense involving an excuse or justification
peculiarly within the knowledge of the accused, on which the accused can fairly be required to
adduce supporting evidence.”
{¶16} None of the exceptions listed within R.C. 3743.65(A) and 3743.80 are expressly
designated as affirmative defenses. The trial court determined that two of the R.C. 3743.65(A)
exceptions, identified as [4] and [5] above, which pertain to out of state residents in the course of
transporting fireworks out of the state and residents of Ohio who will transport the fireworks out
of the state within 48 hours, involve excuses or justifications “peculiarly within the knowledge of
the accused.” R.C. 2901.05(D). Therefore, the trial court determined that these exceptions
constitute affirmative defenses.
{¶17} However, the trial court determined that the remaining exceptions in R.C.
3743.65(A) and all of the exceptions listed in R.C. 3743.80 constitute elements of the offense,
because these exceptions do not involve issues “peculiarly within the knowledge of the accused.”
R.C. 2901.05(D). In support, the trial court cited R.C. 2901.04(A), which sets forth that
“[e]xcept as otherwise provided * * * sections of the Revised Code defining offenses or penalties
shall be strictly construed against the state, and liberally construed in favor of the accused.” The
trial court then reasoned that, in regard to the remaining R.C. 3743.65(A) exceptions, the State
Fire Marshal must maintain a list of all licensed and permitted persons set forth within R.C.
3743.65(A)[1], [2], [3] and [6]. Thus, proof as to these exceptions is “easily available to the
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State of Ohio through public records maintained by an executive department of the State.” See
R.C. 3743.03(C), R.C. 3743.16(C), R.C. 3743.40(E), and R.C. 3743.51(C). Therefore,
knowledge of such a license or permit would not be “peculiar” to the accused.
{¶18} In regard to the exceptions set forth in R.C. 3743.80, the trial court determined
that whether the items at issue fall within an R.C. 3743.80 exception is likewise not “knowledge
peculiar to the accused.” The trial court determined that these exceptions also constitute
elements of the offense, of which the State bears the burden of proof.
{¶19} We agree with the trial court that a defendant’s knowledge of the licenses and
permits as set forth within R.C. 3743.65(A) is not peculiar to him/her. The existence of such
licenses or permits “involve matters that are within [Appellee’s] knowledge, but not peculiarly
(characteristically, distinctly, or exceptionally) so.” See State v. Nucklos, 171 Ohio App. 3d 38,
2007-Ohio-1025 (2d Dist.), aff'd, 121 Ohio St. 3d 332, 2009-Ohio-792; see also State v. Doran, 5
Ohio St. 3d 187, 193 (1983) (reasoning that entrapment constitutes an affirmative defense in part
because “only the accused possesses the actual knowledge concerning his predisposition to
commit the offense”). Therefore, we agree with the trial court that the licensure and permit
exceptions are elements of the offense on which the State bears the burden of proof.
{¶20} As to the exceptions set forth within R.C. 3743.80, knowledge as to whether the
items constitute permissible items and uses under that section depends upon the subsection at
issue. The following exceptions require knowledge as to the use or purpose to which the item is
put: those used “for marine, aviation, or highway use” as set forth in R.C. 3743.80(A); those that
are “necessary for the safe operation of railroads” as set forth in R.C. 3743.80(B); those used “in
connection with theaters or shows, or in connection with athletics as signals or for ceremonial
purposes” as set forth in R.C. 3743.80(C); those which ultimately are to be used by the “armed
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forces of the United States and the militia of this state” as set forth in R.C. 3743.80(D); those
which are “designed, sold, and used for the purpose of propelling recoverable aero models” as
set forth in R.C. 3743.80(F); and, those used in certain special effect exhibitions where various
conditions are met as set forth in R.C. 3743.80(H). Because the applicability of these exceptions
depends upon not only the item at issue, but also purpose of the item, the exceptions involve
knowledge peculiar to the accused. Further, these exceptions are in the nature of excuses or
justifications and are matters upon which “the accused can fairly be required to adduce
supporting evidence[.]” See R.C. 2901.05(D). Thus, the exceptions found within R.C.
3743.80(A), (B), (C), (D), (F) and (H) constitute affirmative defenses on which the burden of
proof is properly placed upon the accused.
{¶21} However, two exceptions contained within R.C. 3743.80 do not turn upon
knowledge peculiar to the accused, namely: the exception for certain “toy pistols, toy canes, toy
guns, or other devices” which exception is set forth in R.C. 3743.80(E), and the exception for
wire sparklers as set forth in R.C. 3743.80(G). As determination of the exceptions set forth in
subsections (E) and (G) can be made upon physical examination, and as there exist no conditions
as to the use or planned use of these devices, the exceptions cannot be said to turn upon
knowledge peculiar to the accused. Therefore, we conclude that the exceptions set forth in R.C.
3743.80(E) and (G) are not affirmative defenses, and are instead elements of the offense.
{¶22} As the R.C. 3743.65(A) exceptions identified as [1],[2],[3], and [6] above do not
pertain to issues peculiarly in the knowledge of a defendant, they do not constitute affirmative
defenses, and are instead elements of the offense. Similarly, as R.C. 3743.65(A)[7], insofar as it
pertains to R.C. 3743.80(E) and (G), does not relate to issues peculiarly in the knowledge of a
defendant, it is likewise not an affirmative defense, and is instead an element of the offense.
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However, insofar as R.C. 3743.65(A)[7] pertains to the exceptions set forth within R.C.
3743.80(A), (B), (C), (D), (F), and (H), it does not constitute an element of the offense, and these
R.C. 3743.80 exceptions are instead affirmative defenses, on which the accused bears the burden
of proof.
{¶23} Accordingly, the State’s assignment of error is overruled in part and sustained in
part.
III.
{¶24} The State’s assignment of error is sustained in part and overruled in part. The
judgment of the Medina Municipal Court is affirmed insofar as it determined that licensing and
permitting exceptions contained in R.C. 3743.65(A)[1], [2], [3] and [6] and the exceptions
contained in 3743.80(E) and (G) constitute elements of the offense of illegal possession of
fireworks. The judgment of the court is reversed insofar as it determined that the remaining
exceptions contained within R.C. 3743.80 constitute elements of the offense.
Judgment affirmed in part,
and reversed in part.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Medina Municipal
Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
CARLA MOORE
FOR THE COURT
CARR, P. J.
DICKINSON, J.
CONCUR
APPEARANCES:
GREGORY A. HUBER, Prosecuting Attorney, for Appellant.
COLLEEN M. BONK, Attorney at Law, for Appellee.