         [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.




                                               2
                     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.




                                               3
                      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.




                                             4
                       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.”


                                                  5
                      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




                                                6
                     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




                                              7
                      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.




                                                8
