[Cite as State v. Hendrix,
2019-Ohio-3301.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180503
TRIAL NO. B-1801750
Plaintiff-Appellee, :
O P I N I O N.
vs. :
RODERIC O. HENDRIX, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 16, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Derek W. Gustafson, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Roderic O. Hendrix appeals his conviction, following a bench trial, for
carrying a concealed weapon in violation of R.C. 2923.12(A)(2). Hendrix contends
that the trial court erred by finding him guilty of the offense because the state failed
to prove, as an element of the offense under R.C. 2923.12(C)(1)(c), that he possessed
the weapon for an unlawful purpose. However, because we conclude that R.C.
2923.12(C)(1)(c) creates an affirmative defense, which Hendrix failed to prove by a
preponderance of the evidence, we affirm his conviction.
Background
{¶2} On March 24, 2018, just after midnight, a police officer responded to a
two-vehicle accident. Hendrix, the operator of one of the vehicles, told the officer
that he had been driving home from a bar. He said that he had been at the bar since
5:00 p.m., and that he had had two shots of Hennessy while at the bar. The officer
noticed an odor of an alcoholic beverage on Hendrix’s person, and that Hendrix had
bloodshot, watery eyes, and slightly slurred speech. Hendrix told a second officer
that he had had two Budweisers at the bar.
{¶3} Hendrix was arrested after he failed several field-sobriety tests. He
submitted to a chemical breath test, which revealed a breath-alcohol content in
excess of the legal limit. He was charged with several traffic-related offenses,
including operating a vehicle while under the influence of alcohol and driving with a
breath-alcohol concentration over 0.17 percent.
{¶4} The police conducted an inventory search of Hendrix’s car and found
an unloaded Kel Tec 9 mm semi-automatic firearm in the glove compartment and a
full magazine for the firearm in the center console next to the driver’s seat.
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OHIO FIRST DISTRICT COURT OF APPEALS
Subsequent test-firing revealed that the firearm was operable. Hendrix was charged
with carrying a concealed weapon in violation of R.C. 2923.12(A)(2), which provides,
“No person shall knowingly carry or have, concealed on the person’s person or
concealed ready at hand … [a] handgun other than a dangerous ordnance.”
{¶5} Hendrix filed a motion to dismiss the weapon charge, citing R.C.
2923.12(C)(1)(c), which provides:
(C)(1) This section [carrying a concealed weapon] does not apply to
any of the following:
…
(c) A person’s transportation or storage of a firearm, other than a
firearm described in divisions (G) to (M) of section 2923.11 of the
Revised Code, in a motor vehicle for any lawful purpose if the firearm
is not on the actor’s person.
{¶6} In his motion, Hendrix asserted that, pursuant to the exception in R.C.
2923.12(C)(1)(c), he could not be prosecuted under R.C. 2923.12 because the weapon
in his car was not on his person. The state countered that R.C. 2923.12(C)(1)(c) was
an affirmative defense that Hendrix was required to prove. The trial court overruled
the motion to dismiss.
{¶7} Hendrix waived his right to a jury trial, and the matter proceeded to a
bench trial.
{¶8} At the close of the state’s case, Hendrix moved for acquittal under
Crim.R. 29(A) based on insufficient evidence. He argued that the state failed to
prove that he had transported the weapon with an unlawful purpose. The court
overruled the motion.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} In his defense, Hendrix testified that he had the unloaded gun in his
glove compartment and a magazine for the gun in his center console “[b]ecause
you’re not supposed to drive around with a loaded weapon in the car.” When asked
why he had the gun in his car on the day of the offense, Hendrix replied, “Because I
go fishing in remote places. I was fishing in Ross that day, and I keep it for
protection from animals.”
{¶10} Hendrix testified that he had been fishing from noon “to 6:00 or so in
the evening.” He acknowledged that in between the time that he had been fishing
and the time of the accident, he had stopped at a bar and consumed alcohol.
{¶11} On cross-examination, Hendrix testified that he had been fishing until
“[s]omewhere around 4:00 or 5:00, maybe 6:00, something like that.” He agreed
that he had gone directly to the bar after fishing, that he had been consuming alcohol
the whole time he was at the bar, and that he had been in the crash on his way home
from the bar. Hendrix acknowledged that at midnight, he was no longer fishing and
no longer needed protection from animals. He also agreed that when he sat in the
driver’s seat of his car, the glove compartment and center console would be well
within his reach.
{¶12} At the close of the defense case, defense counsel renewed the Crim.R.
29 motion, and the trial court denied it. The court found Hendrix guilty and
sentenced him to two years’ community control.
R.C. 2923.12(C)(1)(c) is an Affirmative Defense
{¶13} In his sole assignment of error, Hendrix argues that the trial court
erred by finding him guilty of carrying a concealed weapon in violation of R.C.
2923.12(A)(2). He asserts that the state failed to prove, pursuant to R.C.
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OHIO FIRST DISTRICT COURT OF APPEALS
2923.12(C)(1)(c), that he possessed the weapon for an unlawful purpose. Hendrix
contends that R.C. 2923.12(C)(1)(c) presents an additional element that that the state
must prove, and that it does not present an affirmative defense.
{¶14} Due process requires the prosecution to prove beyond a reasonable
doubt “all of the elements included in the definition of the offense of which the
defendant is charged.” State v. Ireland, 155 Ohio St.3d 287,
2018-Ohio-4494,
121
N.E.3d 285, ¶ 38, quoting Patterson v. New York,
432 U.S. 197, 210,
97 S.Ct. 2319,
53 L.Ed.2d 281 (1977). However, “[t]he 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.” See R.C. 2901.05(A);1 State v.
Hancock,
108 Ohio St.3d 57,
2006-Ohio-160,
840 N.E.2d 1032, ¶ 35. An affirmative
defense is defined by R.C. 2901.05(D)(1) as either of the following:
(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.
{¶15} Hendrix points out that the legislature did not specifically designate
R.C. 2923.12(C)(1)(c) as an affirmative defense, even though it specifically
designated R.C. 2923.12(D) as an affirmative defense. He argues that “this difference
shows the legislature understands what an affirmative defense is and how to
designate an affirmative defense.”
1 R.C. 2901.05(A) was amended by 2018 Am.Sub.H.B. No. 228, effective March 28, 2019, which
inserted “other than self-defense, defense of another, or defense of the accused’s residence as
described in division (B)(1) of this section.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} R.C. 2923.12(D) applies only to a violation of R.C. 2923.12(A)(1),
which involves a deadly weapon other than a handgun. However, the fact that the
legislature designated an affirmative defense that applied only to R.C. 2923.12(A)(1)
does not negate that the exception set forth in R.C. 2923.12(C)(1)(c) is an affirmative
defense to R.C. 2923.12(A)(2). Even though R.C. 2923.12(C)(1)(c) does not expressly
designate the defense as affirmative, we must consider whether it sets forth 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,”
under R.C. 2901.05(D)(1)(b).
{¶17} Hendrix directs us to State v. Nucklos, 121 Ohio St.3d 332, 2009-Ohio-
792,
904 N.E.2d 512, where the Supreme Court of Ohio considered whether an
exception to the drug-trafficking statute, R.C. 2925.03, fell within the definition of an
affirmative defense in R.C. 2901.05(D)(1)(b).
{¶18} The court considered the exception in R.C. 2925.03(B)(1), which
provides that the criminal offense of trafficking in drugs under R.C. 2925.03(A)
“does not apply” to a licensed health professional who complies with applicable
statutory or regulatory requirements. Nucklos at ¶ 1. The Supreme Court held that
proving a health professional’s compliance with statutes or regulations does not fall
within the definition of an affirmative defense in R.C. 2901.05(D)(1)(b) because it is
not an excuse or justification, and proof of compliance is not peculiarly within the
knowledge of the accused and could be established by proper documentation or lack
thereof. Id. at ¶ 16, 20.
{¶19} Unlike the exception considered in Nucklos, however, the exception
set forth in R.C. 2923.12(C)(1)(c) presents an excuse or justification uniquely within
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OHIO FIRST DISTRICT COURT OF APPEALS
the defendant’s knowledge, that is, whether “any lawful purpose” existed for the
defendant’s transportation or storage of the firearm in a motor vehicle. See State v.
Johnson, 2d Dist. Montgomery No. 25773, 2014-Ohio-2815, ¶ 32; State v. Tarbert,
5th Dist. Richland No. 18CA56,
2019-Ohio-1580, ¶ 27. “Compelling the [state] to
refute every potential lawful purpose would be unnecessarily burdensome when the
alleged ‘lawful purpose’ is within [the defendant’s] knowledge and it would be fair
and practical for him to provide supporting evidence.” Tarbert at ¶ 27. Therefore,
we hold that the exception to carrying a concealed weapon set forth in R.C.
2923.12(C)(1)(c) falls within the definition of an affirmative defense under R.C.
2901.05(D)(1)(b). Id. at ¶ 27-28; Johnson at ¶ 32.
{¶20} Hendrix’s assignment of error challenges the sufficiency of the
evidence supporting his conviction solely as to what he deemed to be the state’s
failure of proof on R.C. 2923.12(C)(1)(c) as an element of the offense of carrying a
concealed weapon under R.C. 2923.12(A)(2). However, as we have determined, R.C.
2923.12(C)(1)(c) is an affirmative defense and is not an element of the offense.
Hendrix does not otherwise challenge the sufficiency of the evidence supporting his
conviction.
{¶21} Under R.C. 2923.12(C)(1)(c), Hendrix had the burden to prove by a
preponderance of the evidence that he transported or stored the firearm in his
vehicle for any lawful purpose. The trial court, as the trier of fact, was in the best
position to judge the credibility of Hendrix’s testimony. Even if the trial court
accepted as true Hendrix’s purportedly lawful purpose of protection from wildlife
while fishing, the court was free to conclude that the stated purpose no longer existed
six hours removed from the event when Hendrix operated the vehicle under the
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OHIO FIRST DISTRICT COURT OF APPEALS
influence of alcohol. We cannot say that the trial court, acting as the trier of fact,
clearly lost its way and created such a manifest miscarriage of justice that Hendrix’s
conviction must be reversed and a new trial ordered. See State v. Thompkins, 78
Ohio St.3d 380, 387,
678 N.E.2d 541 (1997).
Conclusion
{¶22} Consequently, we hold that R.C. 2923.12(C)(1)(c) creates an
affirmative defense, and that the trial court did not err in concluding that Hendrix
failed to prove that he had transported or stored the firearm in his vehicle for a
lawful purpose. We overrule the sole assignment of error and affirm the trial court’s
judgment.
Judgment affirmed.
MOCK, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its own entry this date.
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