State v. Weber, 031819 OHCA12, CA2018-06-040

Docket Nº:CA2018-06-040
Opinion Judge:M. POWELL, J.
Party Name:STATE OF OHIO, Appellee, v. FREDRICK M. WEBER, Appellant.
Attorney:D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, for appellee Gary A. Rosenhoffer, for appellant
Judge Panel:S. POWELL, P.J., and PIPER, J., concur.
Case Date:March 18, 2019
Court:Court of Appeals of Ohio
 
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2019-Ohio-916

STATE OF OHIO, Appellee,

v.

FREDRICK M. WEBER, Appellant.

No. CA2018-06-040

Court of Appeals of Ohio, Twelfth District, Clermont

March 18, 2019

CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT Case No. 2018CRB00659

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, for appellee

Gary A. Rosenhoffer, for appellant

OPINION

M. POWELL, J.

{¶ 1} Appellant, Fredrick Weber, appeals his conviction in the Clermont County Municipal Court for using weapons while intoxicated.

{¶ 2} Around 4:00 a.m. on February 17, 2018, a deputy and a sergeant from the Clermont County Sheriffs Office were dispatched to appellant's home following the 9-1-1 call of his wife reporting that appellant was in possession of a firearm and intoxicated. When the officers arrived at the scene, appellant's wife advised them that everything was alright as appellant had put the firearm away. The deputy asked her if they could enter the home and she escorted them inside. Once inside, the officers observed appellant coming out of a doorway, holding a shotgun by the stock with the barrel pointed down. Appellant told the officers that the shotgun was unloaded and that he was unloading it to wipe it down. The officers took possession of the shotgun and confirmed it was unloaded. The officers did not observe any ammunition for the shotgun.

{¶ 3} While interacting with appellant, the deputy detected the odor of an alcoholic beverage on appellant's person. Appellant's eyes were bloodshot and glassy, his speech was slurred, and he was unsteady on his feet. Appellant was unable to complete a field sobriety test because he could not follow directions. Furthermore, he was swaying while standing in the instruction position. Appellant stated several times that he was drunk. The officers described appellant as "very intoxicated," "very impaired," and "highly intoxicated."

{¶ 4} Appellant was charged by complaint with one count of using weapons while intoxicated in violation of R.C. 2923.15, a misdemeanor of the first degree. The matter proceeded to a bench trial. Appellant did not testify or present witnesses on his behalf. At trial, defense counsel stipulated that the shotgun satisfied the statutory definition of a firearm and that it was operable.

{¶ 5} Following the state's case-in-chief, appellant moved for acquittal pursuant to Crim.R. 29, arguing that mere possession of a firearm is not illegal and that Ohio citizens have the right to arm themselves. Appellant further argued that R.C. 2923.15 was unconstitutional as applied. The trial court took the matter under advisement. In a post-trial memorandum, appellant once again argued that the statute was unconstitutional as applied. By decision filed on June 5, 2018, the trial court rejected appellant's constitutional challenge to R.C. 2923.15 and found appellant guilty as charged.

{¶ 6} Appellant now appeals, raising two assignments of error which will be considered together.

{¶ 7} Assignment of Error No. 1:

{¶ 8} THE GUILTY FINDING IS CONTRARY TO LAW.

{¶ 9} Assignment of Error No. 2:

{¶ 10} THE USING A WEAPON WHILE INTOXICATED STATUTE IS UNCONSTITUTIONAL AS APPLIED TO THE FACTS OF THIS CASE.

{¶ 11} Appellant challenges his conviction on two separate grounds. Specifically, appellant challenges his conviction on the ground the state failed to prove he was carrying or using a firearm because "the record is devoid of any evidence that the unloaded shotgun [appellant] was holding was carried or used as a firearm" or that he "had committed, was committing or was about to commit" any "crime while holding the shotgun." Appellant further challenges his conviction on the ground R.C. 2923.15 is unconstitutional on its face and as applied because it infringes upon his right to keep and bear arms and defend himself.

{¶ 12} Appellant was convicted of violating R.C. 2923.15(A) which provides, "No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance." Whoever violates the statute is "guilty of using weapons while intoxicated[.]" R.C. 2923.15(B). "'Firearm' means any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. 'Firearm' includes an unloaded firearm, and any firearm that is inoperable but that can readily be rendered operable." R.C. 2923.11(B).

{¶ 13} "[T]he word 'intoxicated' as used in R.C. 2923.15(B) means the state of being 'under the influence' [as used] in R.C. 2923.15(A)." State v. Smith, 9th Dist. Wayne No. 1610, 1979 Ohio App. LEXIS 11527, *2-3 (Dec. 12, 1979). "Under the influence" has been defined as the condition in which a person finds himself after having consumed some intoxicating beverage, whether mild or potent, and in such quantity, whether small or great, that its effect on the person adversely affects his actions, reactions, conduct, movements or mental processes or impairs his reactions to an appreciable degree, under the circumstances then existing so as to deprive him of that clearness of the intellect and control of himself which he would otherwise possess. State v. Eldridge, 12th Dist. Warren No. CA2015-02-013, 2015-Ohio-3524, ¶ 7.

{¶ 14} R.C. 2923.15 regulates the carrying or use of a firearm while intoxicated and simply prohibits an individual from using or carrying, i.e. handling, any firearm while under the influence of alcohol or any drug of abuse, as defined above. Smith at *2; State v. Waterhouse, 7th Dist. Belmont No. 93-B-26, 1995 Ohio App. LEXIS 578, *4 (Feb. 16, 1995). Contrary to appellant's assertion, the statute does not require that the firearm be used as a firearm or that it be carried or used with the intent to use it as a weapon or firearm. Nor does the statute require the state to prove that the intoxicated person had committed, was committing, or was about to commit a crime while handling the firearm. Furthermore, R.C. 2923.15 does not, as suggested by appellant, criminalize the mere presence of a firearm in the home of an intoxicated person. Nor does the statute, as suggested by appellant, prohibit a person from carrying or using a firearm after consuming alcoholic beverages. Rather, the statute only prohibits the use or...

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