State v. Meyers

[Cite as State v. Meyers, 2014-Ohio-1357.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NOS. 2013-L-042
- vs - : and 2013-L-043
ROBERT A. MEYERS, :
Defendant-Appellant. :
Criminal Appeals from the Painesville Municipal Court.
Case Nos. 13 CRB 149 and 13 TRD 497.
Judgment: Affirmed in part; reversed in part and remanded.
Joseph P. Szeman, Madison Village Law Director, 126 West Main Street, Madison, OH
44057 (For Plaintiff-Appellee).
Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Robert A. Meyers, appeals his convictions for improperly
handling firearms in a motor vehicle, in violation of R.C. 2923.16, and using weapons
while intoxicated, in violation of R.C. 2923.15. For the reasons that follow, the trial
court’s decision is affirmed in part, reversed in part, and remanded.
{¶2} At approximately 12:20 a.m. on January 20, 2013, Madison Village Police
Officer Michael Smith observed a red pick-up truck with heavily-tinted windows exiting
the highway. Officer Smith also observed that the rear license plate light was out.
Officer Smith pulled the vehicle over to discuss these equipment violations with the
driver. Before exiting his patrol car, Officer Smith entered the truck’s license plate
number in his mobile data terminal and determined that the owner, Robert Meyers, was
licensed to carry a concealed firearm.
{¶3} Officer Smith’s patrol car was equipped with a dashboard camera, which
recorded the stop. The audio is very poor, apparently due to high winds. The video
shows that Officer Smith approached the driver’s side of the truck, and Meyers rolled
down his window. Officer Smith asked Meyers for his license and proof of insurance.
While Meyers was retrieving his paperwork, Officer Smith scanned the inside of the
vehicle with a flashlight. Meyers handed his driver’s license to Officer Smith; the officer
examined the driver’s license and inquired of Meyers where he was coming from and
what he was doing that evening. Meyers’ side of the conversation is almost entirely
inaudible.
{¶4} Soon after the stop, and after this brief exchange, Meyers can be heard to
say, “I have a concealed carry permit,” to which Officer Smith responds, “all right, well
do you have your weapon in here…oh yes you do.” Officer Smith testified at that point
he observed a handgun on the vehicle floor near the gas pedal. Officer Smith then
drew his service revolver and ordered Meyers not to reach for the weapon and to keep
his hands in plain sight. Officer Smith ordered Meyers to produce his insurance
documents, which Meyers did. The officer then asked Meyers again to keep his hands
on the steering wheel. It appears that Meyers did not comply with that request because
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Officer Smith then immediately ordered Meyers out of the vehicle. Officer Smith
handcuffed Meyers and ordered Meyers to stand against the side of the truck.
{¶5} Officer Smith proceeded to question Meyers about the handgun, to which
Meyers replied that he did not have a handgun. Officer Smith requested back up, and
he and Meyers continued to wait by the side of the truck. About five minutes later,
Sergeant Matthew Byers arrived. Meyers was placed in the back of Officer Smith’s
patrol car. While in the patrol car, Officer Smith detected an odor of alcohol, which he
had not previously detected due to the high winds outside. Sergeant Byers requested
Meyers perform a field sobriety test, which Meyers refused. Officer Smith took pictures
of the inside of the truck; he noted that the handgun’s action was open with the slide
locked back and that there was a fully-loaded magazine and a holster on the floor near
the driver’s seat. A second loaded magazine was discovered in the glove compartment
during the vehicle inventory search that followed Meyers’ arrest.
{¶6} Officer Smith and Sergeant Byers both testified that Meyers smelled of
alcohol, had slurred speech, and repeated questions many times, apparently either not
remembering or understanding the questions. According to the officers, Meyers also
had trouble understanding basic concepts, e.g., the reason for his arrest. Meyers was
informed that he was under arrest, Mirandized, and transported to the jail.
{¶7} Meyers was charged in Painesville Municipal Court with using weapons
while intoxicated and improperly handling firearms in a motor vehicle. Meyers was also
cited for unlawful window tint and for not having any rear license plate illumination.
Meyers pled not guilty to all charges.
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{¶8} Meyers filed several pretrial motions, pro se, including a motion for
appointment of counsel. In addition, he filed a written demand for jury trial. On March
12, 2013, the court held a pretrial hearing concerning Meyers’ pro se motions, including
his motion to compel discovery. For Meyers’ benefit, the trial court had a public
defender present for this hearing. Meyers indicated he wished to proceed pro se at the
pretrial hearing and that he had a suppression motion he wanted to file. He said he did
not want counsel for the suppression hearing, even though the trial court encouraged
him to take advantage of the attorney the trial court provided for him. Meyers indicated
that he wanted counsel for the jury trial. The court discussed the charges, ensuring
Meyers understood the charges against him and what the state would have to prove at
trial. The court told Meyers he would be wise to take advantage of appointed counsel
because he would otherwise get lost in procedure. At the end of the pretrial hearing,
the trial court appointed counsel and granted a continuance so that Meyers could
consult with counsel about the suppression motion.
{¶9} A suppression motion was subsequently filed, and a hearing was held on
that motion on March 26, 2013. Meyers again refused counsel’s assistance at this
hearing and argued the suppression motion himself, though counsel was available and
in court. The trial court granted the suppression motion in part and denied it in part.
The trial court held that any statements Meyers made after Officer Smith placed him in
the patrol car, but before Meyers was made aware of his Miranda rights, would be
suppressed. At the end of the suppression hearing, the issue of appointed counsel was
again addressed:
Prosecuting Attorney: The silent record could be a problem.
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The Court: Yeah, he had indicated before that he did not wish to
have counsel at the motion to suppress. He had counsel available.
Obviously he has not availed himself of that counsel even though a
counsel is in court and available. And, Mr. Meyers, you obviously
by your actions have chosen not to have an attorney sit with you; is
that correct?
Mr. Meyers: Correct.
The Court: I have appointed one for the jury trial. She is here in
the courtroom and, once again, the offer is there, but by action in
action alone if you do not wish to have the attorney present, it’s
entirely up to you.
{¶10} On the day of trial, Meyers signed an “Acknowledgment of Rights and
Waiver of Counsel.” Meyers represented himself at trial, but had standby counsel
available throughout the proceedings. Meyers was convicted by a jury of improperly
handling firearms in a motor vehicle and using weapons while intoxicated. The judge
also found Meyers guilty of the two minor misdemeanor traffic violations.
{¶11} Appellant, now represented by counsel, filed a notice of appeal and
asserts five assignments of error. Appellant’s first assignment of error states:
{¶12} “The trial court erred when it permitted the defendant-appellant to
represent himself without first obtaining an effective waiver of his constitutional right to
counsel.”
{¶13} In his first assignment of error, appellant contends that the trial court erred
in failing to conduct the proper inquiry to determine whether his waiver of counsel was
made voluntarily, knowingly, and intelligently. Appellant argues his waiver was not
voluntary, knowing, and intelligent and was thus ineffective. Considering the totality of
the record, we find that appellant gave an effective waiver.
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{¶14} Faretta v. California, 422 U.S. 806 (1975) holds that a defendant seeking
to waive his right to counsel and represent himself must “knowingly and intelligently
forgo” the benefits of counsel.
Although a defendant need not himself have the skill and
experience of a lawyer in order competently and intelligently to
choose self-representation, he should be made aware of the
dangers and disadvantages of self-representation, so that the
record will establish that ‘he knows what he is doing and his choice
is made with eyes open.’
Id. at 835 (citation omitted). “Once the right to counsel is properly waived, trial courts
are permitted to appoint standby counsel to assist the otherwise pro se defendant” even
over the defendant’s objections. State v. Martin, 103 Ohio St.3d 385, 390 (2004).
{¶15} Appellant was charged with petty offenses. A “petty offense” is an offense
for which the maximum penalty is up to six months confinement. See Crim.R. 2(C) and
(D). The highest level offense with which appellant was charged was a misdemeanor of
the first degree. Trial courts are not permitted to impose a sentence for more than six
months on a first-degree misdemeanor. See R.C. 2929.24(A)(1) (exceptions
inapplicable). In a petty offense case, waiver of counsel must be made in open court
and recorded by means of shorthand, stenotype, or other adequate mechanical device;
but unlike a waiver in a “serious” offense case, it need not be in writing. Crim.R. 22;
Crim.R. 44.
{¶16} Meyers stated many times on the record that he wished to proceed pro se.
On May 3, 2013, the day of trial, Meyers signed a form entitled, “Acknowledgment of
Rights and Waiver of Counsel,” which is typically used for those pleading guilty or no
contest, and was annotated to indicate that Meyers was pleading not guilty. Crim.R. 22
was more than satisfied, in that a writing is not typically required in these circumstances.
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It is clear from Meyers’ various in-court statements and from the form he signed on the
trial date that he wished to proceed pro se. See Crim.R. 44(C). Thus, we must
determine whether Meyers was sufficiently informed to have made such waiver
voluntarily, knowingly, and intelligently.
{¶17} In State v. Foy, 5th Dist. Stark No. 2006-CA-00269, 2007-Ohio-6578, the
Fifth Appellate District concurred with the Fourth Appellate District’s assessment of the
difficult situation a trial court faces when a litigant insists on self-representation:
We note, ‘a criminal defendant’s decision to represent himself is
generally problematic for trial courts. On the one hand, self-
representation is an important right and a refusal to grant a
defendant the right to appear pro se at trial may warrant a reversal.
On the other hand, when a pro se defendant does not receive the
desired outcome at trial, a court’s decision to allow him to proceed
pro se presents an easy target to raise on appeal. This is not a
case in which a defendant has been denied counsel, nor is it a
situation in which we must discern whether a defendant impliedly
waived counsel. To the contrary, in the instant case appellant
insisted that he wanted to exercise his right of self-representation
and was emphatic that he be allowed to proceed in that manner.
The trial court implored him not to proceed on his own and, even
after it permitted him to do so, directed that his public defender
remain available to assist him.
Id. at ¶21, quoting State v. Doyle, 4th Dist. Pickaway No. 04 CA 23, 2005-Ohio-4072,
¶19. Doyle indicates Ohio courts have rejected a “checklist approach” to determine
whether a defendant made a voluntary, knowing, and intelligent waiver of his right to
counsel. Id. at ¶11. Instead, Ohio appellate courts consider whether the totality of the
circumstances demonstrates that the defendant understood the nature of the charges,
possible defenses, and seriousness of the waiver. Id. The circumstances we must
consider include whether the record shows that the defendant was aware of the nature
of the charges, defenses available thereto, and possible penalties; the defendant’s
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familiarity with the criminal justice system; and whether the defendant was advised of
his right to representation and the dangers of self-representation. Id. at ¶11-17.
{¶18} Here, as in Foy, supra, we are neither faced with a situation in which a
defendant has been denied counsel nor with a situation in which we must determine
whether a defendant impliedly waived counsel. The trial court informed Meyers that he
had a right to counsel, of which it would “be wise” to take advantage, and offered
Meyers additional time to secure counsel. Even though the trial court permitted Meyers
to proceed pro se, counsel was always available to him in court. Nonetheless, Meyers
insisted on presenting and arguing his own case. Meyers filed and argued numerous
motions that demonstrate he knew the nature of the charges against him and what the
state had to prove in order to convict him.
{¶19} A review of the record shows that Meyers waived his right to counsel “with
eyes open.” Faretta, supra. At the pretrial hearing, the court discussed with Meyers
what the state would be required to prove with regard to the charge of using weapons
while intoxicated and the burden of proof. Meyers’ pleadings reflect an understanding
of court procedure. Furthermore, at trial, Meyers argued the state could not prove that
he was intoxicated or that he was in possession of a handgun. As intoxication and
possession of a handgun were the central elements of the state’s case, it is clear that
Meyers understood the nature of the charges and available defenses. Meyers signed a
form acknowledging that he faced jail time if convicted, which shows that he was aware
of the possible punishments. The trial court advised Meyers that it would be in his best
interest to take advantage of counsel and explained his right to have counsel appointed
at no cost to him. The trial court ensured that counsel was available to Meyers at all
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times, but he did not avail himself of counsel’s aid. Thus, taking into account the totality
of the circumstances, it is clear that Meyers was not deprived of counsel and that he
voluntarily, knowingly, and intelligently waived his right to counsel. Doyle, supra, at ¶11.
{¶20} Meyers’ first assignment of error is without merit.
{¶21} Meyers’ second assignment of error states:
{¶22} “The trial court erred when it denied the defendant-appellant’s motion to
suppress statements made to the police in violation of his constitutional rights to the
assistance of counsel and against self-incrimination.”
{¶23} In his second assignment of error, Meyers argues that “the trial court erred
by failing to suppress the statements he made during the time when he was removed
from his truck and prior to being placed within the police cruiser.” We find no error in
the trial court’s decision regarding suppression of statements made by Meyers.
{¶24} Appellate review of a trial court’s ruling on a motion to suppress evidence
presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 154,
2003-Ohio-5372. We accept the trial court’s findings of fact when they are supported by
competent, credible evidence. State v. Guysinger, 86 Ohio App.3d 592, 594 (4th
Dist.1993). If the trial court’s findings of fact are supported by the record, we review the
trial court’s application of the law to those facts de novo. State v. Djisheff, 11th Dist.
Trumbull No. 2005-T-0001, 2006-Ohio-6201, ¶19.
{¶25} “A police officer may lawfully stop a vehicle, motorized or otherwise, if he
has a reasonable, articulable suspicion that the operator has engaged in criminal
activity, including a minor traffic violation.” State v. Roberts, 2d Dist. Montgomery No.
23219, 2010-Ohio-300, ¶14. The United States Supreme Court has held that routine
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traffic stops are more “analogous to a so-called ‘Terry stop,’ than to a formal arrest” and
that police conducting a traffic stop, similar to police conducting a Terry stop, “may ask
the detainee a moderate number of questions to determine his identity and to try to
obtain information confirming or dispelling the officer’s suspicions.” Berkemer v.
McCarty, 468 U.S. 420, 439-440 (1984). The Court further stated:
The comparatively nonthreatening character of [Terry stops]
explains the absence of any suggestion in our opinions that Terry
stops are subject to the dictates of Miranda. The similarly
noncoercive aspect of ordinary traffic stops prompts us to hold that
persons temporarily detained pursuant to such stops are not ‘in
custody’ for the purposes of Miranda.
Id. at 440.
{¶26} Ohio courts have similarly held that “routine roadside questioning of a
driver during an ordinary traffic stop does not constitute a custodial interrogation
requiring Miranda warnings.” E.g., State v. Brown, 2d Dist. Montgomery No. 25204,
2012-Ohio-5532, ¶10. In the interest of officer safety, such questioning may include
whether the person detained is in possession of a firearm. Id. at ¶11, citing State v.
Lenoir, 2d Dist. Montgomery No. 12646, 1997 Ohio App. LEXIS 2494 (June 6, 1997).
{¶27} It is important to note that following the suppression hearing, the trial court
granted Meyers’ motion to suppress in part and denied it in part. The trial court
suppressed any statements made from the time Meyers was placed in Officer Smith’s
patrol car until Meyers was Mirandized. Meyers argues that “the trial court erred by
failing to suppress the statements he made during the time when he was removed from
his truck and prior to being placed within the police cruiser.” Meyers does not indicate
any particular statements that he believes should have been suppressed. During the
relevant time, however, Meyers made statements denying knowledge of any firearm in
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his vehicle, denying that concealed carry licensees are required to announce their
status and the presence of weapons in their vehicles during traffic stops, denying that
he was intoxicated, and questioning whether Officer Smith had any basis for the stop
that could be proved in court.
{¶28} The trial court did not err by holding that the statements made before
Meyers was placed in Officer Smith’s patrol car were admissible. These statements
were made during the temporary detention incident to the traffic stop, which is not
subject to the dictates of Miranda. See Berkemer, supra. Officer Smith was permitted
to ask “a moderate number” of questions to establish Meyers’ identity and to confirm or
dispel suspicion of criminal activity before determining whether to arrest Meyers. Officer
Smith’s questions did not go beyond the permissible scope of the traffic stop.
{¶29} Officer Smith ordered Meyers out of his vehicle and handcuffed him during
the questioning outside the vehicle. At that point, Meyers denied having a firearm in the
vehicle. The officer knew this to be false, as he had observed a firearm in plain view.
When an officer is justified in believing that the individual whose
suspicious behavior he is investigating at close range is armed and
presently dangerous to the officer or to others, it would appear to
be clearly unreasonable to deny the officer the power to take
necessary measures to determine whether the person is in fact
carrying a weapon and to neutralize the threat of physical harm.
Terry v. Ohio, 392 U.S. 1, 24 (1968). Officer Smith took reasonable steps to ensure his
safety while investigating the facts and circumstances of the situation. Most
significantly, Meyers fails to point to any statements that could be considered
“incriminating” that the trial court did not suppress.
{¶30} Meyers’ second assignment of error is without merit.
{¶31} Meyers’ third assignment of error states:
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{¶32} “The defendant-appellant was deprived of his constitutional rights to fair
trial and due process when the trial court failed to give an accurate jury instruction
regarding the improper handling of firearms in a motor vehicle.”
{¶33} In this assignment of error, Meyers contends that the trial court’s jury
instruction on the charge of improperly handling a firearm in a motor vehicle amounts to
plain error. First, Meyers contends that the trial court instructed the jury to apply a
statute inapplicable to Meyers, who was licensed to carry concealed firearms, and that
the jury did in fact rely upon that statute in reaching its verdict. Second, Meyers
contends that the trial court instructed the jury on the basis of an obsolete version of the
applicable statute, which is materially different from the version in force at the relevant
time. Third, Meyers contends that the trial court failed to instruct the jury on the
statutory privileges granted to persons licensed to carry concealed firearms.
{¶34} At trial, Meyers did not object to the jury instructions and has therefore
waived all but plain error on review. State v. Skatzes, 104 Ohio St.3d 195, 205, 2004-
Ohio-6391. In criminal appeals where no objection was made to erroneous jury
instructions, the Ohio Supreme Court permits the use of plain error doctrine to reverse a
conviction only when, but for the error, the outcome of the trial clearly would have been
otherwise. Id.{¶35} The decision to use a particular jury instruction in a criminal case lies
within the sound discretion of the trial court and cannot form the basis for reversal
unless an abuse of discretion took place. State v. Nichols, 11th Dist. Lake No. 2005-L-
017, 2006-Ohio-2934, ¶28. As a general proposition, a jury instruction is proper if it
12
gives a plain and unambiguous statement of the law pertinent to the case in light of the
pleadings and the evidence. Id. at ¶30.
{¶36} A review of the record shows that Meyers was charged with, tried for, and
convicted of violating R.C. 2923.16(C). The version of that statute applicable to Meyers
states, in relevant part:
(C) No person shall knowingly transport or have a firearm in a
motor vehicle unless the person may lawfully possess that firearm
under applicable law of this state or the United States, the firearm is
unloaded, and the firearm is carried in one of the following ways:
(1) in a closed package, box, or case; (2) in a compartment that can
be reached only by leaving the vehicle; (3) in plain sight and
secured in a rack or holder made for the purpose[.]
{¶37} Evidence was presented that Meyers had a handgun and ammunition
unsecured in his vehicle and within reach of the driver. Relevant to Meyers’ argument
and to the charge in this case is the provision contained in R.C. 2923.16(F)(5). The
version of that section in effect at the time of the offense provided as follows, with
emphasis added:
Divisions (B) and (C) of this section do not apply to a person who
transports or possesses a handgun in a motor vehicle if, at the time
of that transportation or possession, both of the following apply:
(a) The person transporting or possessing the handgun is carrying
a valid license or temporary emergency license to carry a
concealed handgun issued to the person under section 2923.125 or
2923.1213 of the Revised Code or a license to carry a concealed
handgun that was issued by another state with which the attorney
general has entered into a reciprocity agreement under section
109.69 of the Revised Code.
(b) The person transporting or possessing the handgun is not
knowingly in a place described in division (B) of section 2923.126 of
the Revised Code.
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{¶38} Therefore, Meyers could not be charged with a violation of R.C.
2923.16(C) if the provisions of R.C. 2923.16(F)(5)(a) and (b) apply. The first question in
that regard is whether Meyers was carrying a valid license at the time of the stop. The
language of R.C. 2923.16(F)(5)(a) is clear that the offense contained in R.C. 2923.16(C)
“does not apply” to an individual carrying a valid license. However, the record is silent
as to whether a valid license was ever requested or produced. Therefore, we must
determine whether it was the state’s burden to offer some evidence that Meyers was not
carrying a valid license or whether Meyers carried the burden as an affirmative defense.
{¶39} Affirmative defenses in criminal cases are defined in R.C. 2901.05(D)(1)
as either “(a) A defense expressly designated as affirmative; [or] (b) 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.” (Emphasis added.)
{¶40} The Ohio legislature has specifically enumerated affirmative defenses with
regard to a violation of R.C. 2923.16:
(G)(1) The affirmative defenses authorized in divisions (D)(1) and
(2) of section 2923.12 of the Revised Code are affirmative defenses
to a charge under division (B) or (C) of this section that involves a
firearm other than a handgun.
(2) It is an affirmative defense to a charge under division (B) or (C)
of this section of improperly handling firearms in a motor vehicle
that the actor transported or had the firearm in the motor vehicle for
any lawful purpose and while the motor vehicle was on the actor's
own property, provided that this affirmative defense is not available
unless the person, immediately prior to arriving at the actor’s own
property, did not transport or possess the firearm in a motor vehicle
in a manner prohibited by division (B) or (C) of this section while the
motor vehicle was being operated on a street, highway, or other
public or private property used by the public for vehicular traffic.
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{¶41} In a similar case, the First District Court of Appeals held that an exemption
did not have to be established by the state in a prosecution for carrying a concealed
weapon. State v. Washington, 1st Dist. Hamilton No. C-810917, 1982 Ohio App. LEXIS
12701. The First District held: “We have previously held that ‘[a] person accused of
violating a penal statute which contains an exemption has the burden of proving, by a
preponderance of the evidence, that he is within such exemption.’” Id. at *3.
{¶42} In addition, the Ohio Supreme Court has considered a similar provision
concerning the burden to establish an exemption from prosecution due to a specific
statutory provision. In State v. Frost, 57 Ohio St.2d 121, 128, the Court stated:
The [defendant], in this cause, sought to avoid criminal liability for
violating the Ohio Securities Act by claiming the protection of the
exemption provided in R.C. 1707.03(B). It is not unconstitutional to
require a defendant to carry the burden of proof in such a case,
because it does not require the defendant to negate any facts of the
crime which the state must prove in order to convict.
{¶43} Therefore, we hold it was Meyers’ burden to establish that he had his
license with him at the time he was stopped, which would have rendered R.C.
2923.16(C) inapplicable to him. Meyers’ contention that he could not be convicted of a
violation of R.C. 2923.16(C) is without merit.
{¶44} This does not, however, end the inquiry regarding the conviction for this
charge. Adding to the confusion in this case is the fact that the trial court also instructed
the jury on a prior version of R.C. 2923.16(C), which was inapplicable to Meyers, and on
a violation of R.C. 2923.16(E)(1), which sets forth offenses by those who have been
issued a valid license. However, Meyers was not charged with violating R.C.
2923.16(E)(1). It is unknown whether the jury returned its verdict as a result of this
instruction, or on the erroneous instruction regarding R.C. 2923.16(C). Either way, it
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was plain error to give an instruction on a prior version of the applicable statute and an
offense for which the defendant was not charged.
{¶45} Meyers’ third assignment of error has merit to the extent indicated. There
was plain error in the instructions to the jury, entitling Meyers to a new trial on that
charge. On remand, in the event of a new trial, the jury should be instructed on the
relevant version of R.C. 2923.16(C).
{¶46} Meyers’ fourth assignment of error states:
{¶47} “The trial court erred to the prejudice of the defendant-appellant when it
returned a verdict of guilty against the manifest weight of the evidence.”
{¶48} Meyers contends that his convictions for improperly handling firearms in a
motor vehicle and using a weapon while intoxicated are against the manifest weight of
the evidence. As Meyers’ conviction for improperly handling firearms in a motor vehicle
has already been reversed, this assignment of error is moot with regard to that charge.
Thus, we consider only the manifest weight challenge to Meyers’ conviction for using a
weapon while intoxicated. For the reasons that follow, we find this conviction not
against the manifest weight of the evidence.
{¶49} When a criminal defendant contends that a verdict is against the manifest
weight of the evidence, an appellate court acts as a “thirteenth juror,” reweighing the
evidence. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997); State v. Lee, 6th Dist.
No. L-06-1384, 2008-Ohio-253, ¶12. “The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed
16
and a new trial ordered.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d
172, 175 (1983). Reversal on the grounds that a conviction was against the manifest
weight of the evidence is granted “only in the exceptional case in which the evidence
weighs heavily against the conviction.” Id.{¶50} In this case, the evidence does not weigh heavily against a conviction for
using a weapon while intoxicated. Meyers was charged under R.C. 2923.15(A), which
states: “(A) No person, while under the influence of alcohol or any drug of abuse, shall
carry or use any firearm or dangerous ordnance.” The trial court properly instructed the
jury that in order to find that Meyers was “under the influence” of alcohol or drugs at the
time of the offense, it must be established that he used alcohol or drugs in such quantity
that it “adversely affected his actions or mental process to deprive him of that clearness
of intellect and control” which he otherwise would have had.
{¶51} The testimony of Officer Smith and Sergeant Byers was that Meyers
smelled of alcohol, had blood shot and glassy eyes, repeated himself, had difficulty
following instructions, and difficulty understanding and remembering statements,
questions, and answers. Meyers refused a request to perform field sobriety tests.
Sergeant Byers testified, based on over 200 OVI arrests and his extensive experience
with people who have been drinking and show signs of intoxication, it was his opinion
that Meyers was over the legal limit to be driving. He added that Meyers was “certainly
too intoxicated to be handling a firearm.” Meyers was the driver and sole occupant of
the truck in which a handgun and ammunition were recovered from the vehicle floor
near the driver’s seat. Contrary to Meyers’ assertions at trial and on appeal, the results
of a field sobriety test are not required to establish that a defendant was intoxicated.
17
State v. Scandreth, 11th Dist. Trumbull No. 2009-T-0039, 2009-Ohio-5768, ¶71
(citations omitted).
{¶52} Meyers’ fourth assignment of error is without merit.
{¶53} Meyers’ fifth assignment of error states:
{¶54} “The trial court sentenced the defendant-appellant contrary to law.”
{¶55} Under this assignment of error, Meyers argues “[t]he trial court erred when
it sentenced the defendant-appellant as having committed a first-degree misdemeanor
improper handling of firearms in a motor vehicle where, pursuant to R.C. 2923.16(I), the
defendant-appellant was convicted of a minor misdemeanor.”
{¶56} R.C. 2923.16(I) provides, in pertinent part:
If at the time of the stop of the offender for a traffic stop, * * * any
law enforcement officer involved with the stop * * * had actual
knowledge of the offender’s status as a licensee, a violation of
division (E)(1) or (2) of this section is a minor misdemeanor, and
the offender’s concealed handgun license shall not be suspended
pursuant to division (A)(2) of section 2923.128 of the Revised
Code.
{¶57} It was never established in the record whether Meyers had a valid license
at the time this incident occurred. There was some testimony that when the officer ran
Meyers’ vehicle registration, he received information that the owner of the vehicle had a
carry and conceal license issued to him. However, there is no indication that the license
was still in effect or in Meyers’ possession at the time of the stop.
{¶58} The fact that the officer might have known that Meyers had been issued a
concealed carry permit is irrelevant if Meyers was not in compliance with the statute,
e.g., that he carry the license with him. See R.C. 2923.126(A). As indicated above,
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Meyers did not meet his burden of establishing compliance; nothing in the record
suggests he had his license with him.
{¶59} Meyers’ fifth assignment of error is without merit.
{¶60} For the foregoing reasons, Meyers’ conviction for improperly handling a
firearm in a motor vehicle is reversed and remanded for a new trial. Meyers’ conviction
for using weapons while intoxicated is affirmed.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.
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