[Cite as State v. Alexander, 2013-Ohio-1913.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      ADAMS COUNTY

STATE OF OHIO,                        :    Case No. 12CA945
                                      :
     Plaintiff-Appellee,              :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
BARRY ALEXANDER,                      :
                                      :    RELEASED 05/03/13
     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

Timothy Young, Ohio State Public Defender, and Valerie Kunze, Ohio State Assistant
Public Defender, Columbus, Ohio, for appellant.

David Kelley, Adams County Prosecutor, West Union, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}     Barry Alexander appeals his conviction for having weapons while under

disability in violation of R.C. 2923.13(A)(4), which he argues is unconstitutional.

Alexander claims that in light of recent United States Supreme Court decisions, the

statute violates the fundamental right to bear arms under the federal and state

constitutions. Alexander failed to raise these issues with the trial court and thus, if we

were to address them for the first time on appeal, it would be under plain error standard.

However, a Second Amendment challenge requires a heightened level of scrutiny that

involves burden shifting to the state including establishing a substantial “fit” between an

important governmental interest and the enforcement mechanism adopted by the

legislature to serve that end. Because it would be unfair to conduct an analysis that

requires the state to establish the constitutionality of the statute when it had no

opportunity to do so at the trial level, we decline to conduct a plain error review.
Adams App. No. 12CA945                                                                             2

       {¶2}    Next Alexander contends that R.C. 2923.13(A)(4) is unconstitutionally

vague and therefore violates his due process rights under the federal and state

constitutions. However, Alexander also failed to raise this issue with the trial court.

Nevertheless, because his void-for-vagueness argument does not require burden

shifting and a complicated fact-specific analysis like his first assignment of error, we

exercise our discretion and consider it. R.C. 3719.011 defines “drug dependent person”

and “person in danger of becoming a drug dependent person” in an intelligible manner.

Because a person of ordinary intelligence can understand whether he or she is under a

disability and prohibited from carrying a firearm under the law, the statute is not void for

vagueness.

       {¶3}    Finally, Alexander claims the trial court misstated the law in its instructions

to the jury, resulting in a denial of his right to a fair trial in violation of the Fifth, Sixth and

Fourteenth Amendments and Article 1, Sections 10 and 16 of the Ohio Constitution.

However, his trial counsel did not object to the court’s instructions or the court’s

responses to the jury’s questions concerning the statute. Moreover, the record shows

that the court explained each essential element of offense in its responses to the jury,

so any potential error was cured by the jury’s consideration of the proper elements.

Therefore, Alexander cannot show error, plain or otherwise, and we reject his argument.

                                             I. FACTS

       {¶4}    This case involves an early morning traffic stop and the resulting discovery

of a loaded rifle in Barry Alexander’s automobile. Trooper Grooms noticed that the truck

in front of him did not have a working license plate light, so he initiated a traffic stop.

When the trooper approached the truck he immediately saw a rifle on the passenger
Adams App. No. 12CA945                                                                        3

seat. He asked the driver, Alexander, to step out of the truck while he searched the

vehicle. After finding drug paraphernalia and methamphetamine inside his truck,

Trooper Grooms arrested Alexander. Subsequently, the state charged Alexander with

having a weapon while under disability, improperly handling firearms in a motor vehicle,

and aggravated possession of drugs.

       {¶5}   At trial Trooper Grooms testified that in addition to the methamphetamine,

he found three spoons, a hypodermic syringe, a Q-tip and a soda can in Alexander’s

truck. He testified that based on his experience, these items are consistently used

together to inject drugs. He also testified that after arriving at the jail, Alexander told

him that he had tried to shoot up earlier, but was unsuccessful because he had “bad

veins.” Furthermore, he told Trooper Grooms that had a “drug problem.” After the state

rested, Alexander moved for acquittal under Crim.R. 29 on the grounds that the state

had not proven he was an alcoholic, drug dependent, or in danger of becoming drug

dependent. The state responded that its theory was Alexander was in danger of

becoming drug dependent based on Trooper Groom’s testimony that he admitted

having a drug problem and attempting to inject drugs earlier that day. The court denied

Alexander’s motion finding that the frequency of his drug use was an issue for the trier

of fact.

       {¶6}   The jury convicted Alexander of all counts and the court sentenced him to

a total prison term of 30 months. Alexander now appeals his conviction for having

weapons while under disability.

                              II. ASSIGNMENTS OF ERROR

       {¶7}   Alexander raises three assignments of error for our review:
Adams App. No. 12CA945                                                                       4

       1. BARRY ALEXANDER’S INDICTMENT AND CONVICTION UNDER R.C.
       2923.13(A)(4) VIOLATE THE INDIVIDUAL AND FUNDAMENTAL RIGHT TO
       BEAR ARMS PROTECTED BY THE SECOND AND FOURTEENTH
       AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I,
       SECTION 4 OF THE OHIO CONSTITUTION.

       2. BARRY ALEXANDER’S INDICTMENT AND CONVICTION UNDER R.C.
       2923.13(A)(4) VIOLATE HIS RIGHT TO DUE PROCESS AS GUARANTEED BY
       THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
       AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.

       3. THE TRIAL COURT MISSTATED THE LAW IN ITS INSTRUCTIONS TO THE
       JURY BY INCLUDING THE LANGUAGE “NOT HAVING BEEN RELIEVED OF
       DISABILITY AS PROVIDED IN SECTION 2923.14 OF THE REVISED CODE”
       WHEN IT DOES NOT APPLY TO THE OFFENSE OF HAVING WEAPONS
       WHILE UNDER DISABILITY UNDER REVISED CODE SECTION 2923.13(A)(4),
       AND THEREBY DEPRIVED MR. STEPHENSON[sic] OF HIS RIGHT TO A FAIR
       TRIAL BEFORE A PROPERLY INSTRUCTED JURY, AND OF HIS RIGHT TO
       DUE PROCESS OF LAW, AS GUARANTEED BY THE FIFTH, SIXTH, AND
       FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION,
       AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

                                  III. LAW AND ANALYSIS

                                 A. Waiver and Plain Error

       {¶8}   In his first assignment of error, Alexander attacks the constitutionality of

R.C. 2923.13(A)(4) and claims that the statute violates his federal and state

constitutional rights. Initially, he contends that in light of the recent decisions by the

Supreme Court of the United States in District of Columbia v. Heller, 554 U.S. 570, 128

S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, __ U.S. __, 130

S.Ct. 3020, 177 L.Ed.2d 894 (2010), the statute “unconstitutionally limits the

fundamental right to bear arms,” as conferred by the Second Amendment to the United

States Constitution. He also claims that the statute violates his right to bear arms under

Article 1, Section 4 of the Ohio Constitution. However, he failed to raise either of these

issues with the trial court.
Adams App. No. 12CA945                                                                          5

       {¶9}    It is well-established that the “failure to raise at the trial court level the

issue of the constitutionality of a statute or its application, which issue is apparent at the

time of trial, constitutes a waiver of such issue and a deviation from this state’s orderly

procedure, and therefore need not be heard for the first time on appeal.” State v. Awan,

22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus. However, the Supreme Court of

Ohio has also held that “the waiver doctrine announced in Awan is discretionary.” In re

M.D., 38 Ohio St.3d 149, 151, 527 N.E.2d 286 (1988). “Even where waiver is clear, [a

reviewing court may] consider constitutional challenges to the application of statutes in

specific cases of plain error or where the rights and interests involved may warrant it.”

Id. at syllabus.

       {¶10} Under Crim.R. 52(B) “[p]lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.” “Thus,

there are ‘three limitations on a reviewing court’s decision to correct an error despite the

absence of a timely objection at trial. First, there must be an error, i.e., a deviation from

a legal rule. * * * Second, the error must be plain. To be “plain” within the meaning of

Crim.R. 52(B), an error must be an “obvious” defect in the trial proceedings. * * * Third,

the error must have affected “substantial rights.” Courts have interpreted this aspect of

the rule to mean that the trial court’s error must have affected the outcome of the trial.’”

State v. Lynn, 129 Ohio St.3d 146, 2011-Ohio-2722, 950 N.E.2d 931, ¶ 13, quoting

State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

       {¶11} “Even when all three prongs are satisfied, a court still has discretion

whether or not to correct the error.” Lynn at ¶ 14. The Supreme Court of Ohio has

acknowledged the discretionary aspect of Crim.R. 52(B) by cautioning courts to notice
Adams App. No. 12CA945                                                                      6

plain error “with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d

804 (1978), paragraph three of the syllabus.

       {¶12} In this case, it is clear from the record that Alexander failed to raise any

constitutional argument regarding R.C. 2923.13(A)(4) at the trial court level. Nor does

Alexander even argue that plain error should apply on appeal. Because such issues

were apparent and available at the time of his trial, we will not address them for the first

time on appeal. See State v. Klintsworth, 4th Dist. No. 10CA40, 2011-Ohio-5553, ¶ 23.

We base our decision to not address Alexander’s claims of the unconstitutionality of

R.C. 2923.13(A)(4) in large part on the analytic structure of the issues he raises.

       {¶13} In his first assignment of error he attacks the constitutionality of the statute

under the Second Amendment. In Heller, the Supreme Court of the United States held

that the Second Amendment preserves the individual right to keep and bear arms.

Heller, 554 U.S. at 592, 595, 128 S.Ct. 2783, 171 L.E2d 637 (2008). With this in mind,

the Court found that the District of Columbia law prohibiting the possession of handguns

inside the home violated the Second Amendment. Id. at 573.

       {¶14} Then in McDonald the Court held that “the Due Process Clause of the

Fourteenth Amendment incorporates the Second Amendment right recognized in

Heller,” and therefore the right is fully applicable to the States. McDonald, __ U.S. __,

130 S.Ct. at 3050, 177 L.Ed.2d 894 (2010). Accordingly, the Court struck down a law

similar to the District of Columbia’s in Heller, which effectively banned handgun

possession by almost all private citizens in Chicago. Id. at 3026.
Adams App. No. 12CA945                                                                            7

       {¶15} Normally, all statutes enjoy a strong presumption of constitutionality. State

v. Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, 930 N.E.2d 770, ¶ 20. To overcome

the presumption, the party challenging the law must prove beyond a reasonable doubt

that the statute is unconstitutional. Id. However, this presumption applies when the

state restriction on constitutional rights is subject to the lowest level of judicial scrutiny,

i.e. the rational basis test. When a more rigorous level of inquiry replaces minimum

scrutiny, the presumption of constitutionality disappears and is replaced by shifting the

burden to the state of justifying the intrusion. See Ezell v. City of Chicago, 651 F.3d 684,

706 (7th Cir.2011), citing Heller at 628, fn. 27. Just how heavy a burden the state must

assume in that context is a newly emerging issue and “Ohio courts have not reached

any consensus as to the proper level of scrutiny in the aftermath of Heller.” State v.

Shover, 9th Dist. No. 25944, 2012-Ohio-3788, ¶ 12.

       {¶16} In this case, Alexander urges us to consider the constitutionality of R.C.

2923.13(A)(4) under a strict scrutiny standard because the Supreme Court in McDonald

found that the Second Amendment confers a fundamental right to bear arms. Although

the Court in Heller confirmed that laws regulating the right to bear arms are subject to

more than just rational basis scrutiny, it did not state which level of heightened scrutiny

should apply to Second Amendment challenges. Heller, 554 U.S. at 628, fn. 27, 128

S.Ct. 2783, 171 L.E2d 637 (2008). And because under either level of heightened

scrutiny the state bears the burden of proving the statute’s constitutionality, it is not fair

to place this burden at the appellate level on the state without having afforded it the

opportunity to present evidence to the trial court.
Adams App. No. 12CA945                                                                          8

       {¶17} In addition to the question of what level of scrutiny applies, the issue of the

fit between a legitimate governmental interest and the statutory framework chosen to

address that end is complex and should be developed in the record at the trial level.

For instance, should the state be able to rely on anecdote and mere argument, or must

it supply empirical studies? Is resort to common sense sufficient to satisfy the state's

burden? Because of the complex nature of such an analysis, we deem Alexander’s first

assignment of error forfeited and decline to address these constitutional issues under a

plain error standard.

                                  B. Void-For-Vagueness

       {¶18} In his second assignment of error, Alexander argues that R.C.

2923.13(A)(4) is also unconstitutionally vague. Again, Alexander failed to raise this

constitutional argument with the trial court and therefore it is within our discretion not to

address it as plain error on appeal. However, because this constitutional issue does not

involve burden shifting and a complicated analysis, we will consider its merits.

       {¶19} “The void-for-vagueness doctrine is a component of the right to due

process and is rooted in concerns that laws provide fair notice and prevent arbitrary

enforcement.” In re Application of Columbus S. Power Co., __Ohio St.3d__, 2012-

Ohio-5690, 983 N.E.2d 276, ¶ 20. However, impossible standards of specificity are not

required. State v. Carrick, 131 Ohio St.3d 340, 2012-Ohio-608, 965 N.E.2d 264, ¶ 14.

As already indicated, statutes generally enjoy a strong presumption of constitutionality,

so to overcome the presumption, the party challenging the law must prove beyond a

reasonable doubt that the statute is unconstitutional. Williams, 126 Ohio St.3d 65, 2010-

Ohio-2453, 930 N.E.2d 770, at ¶ 20
Adams App. No. 12CA945                                                                      9

       {¶20} Alexander does not specify whether he is claiming that the statute is

unconstitutional on its face or as applied to the facts of his case. He does not contend

that the application of the statute in the particular context of his conduct is

unconstitutional. Rather, he argues generally that a person of ordinary intelligence

could not reasonably understand what acts R.C. 2923.13(A)(4) prohibits. Therefore, we

construe his argument as a facial challenge. See Carrick at ¶ 15-16.

       {¶21} A facial challenge requires that “the challenging party * * * show that the

statute is vague ‘not in the sense that it requires a person to conform his conduct to an

imprecise but comprehensible normative standard, but rather in the sense that no

standard of conduct is specified at all.’” State v. Anderson, 57 Ohio St.3d 168, 171, 566

N.E.2d 1224 (1991), quoting Coates v. Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29

L.Ed.2d 214 (1971). “In other words, the challenger must show that upon examining the

statute, an individual of ordinary intelligence would not understand what he is required

to do under the law.” Anderson at 171. Therefore, the defendant “must prove, beyond a

reasonable doubt, that the statute was so unclear that he could not reasonably

understand that it prohibited the acts in which he engaged.” Id.

       {¶22} Here, R.C. 2923.13(A)(4) provides sufficient notice for a person of

ordinary intelligence to understand what he or she is prohibited from doing under the

law. R.C. 2923.13(A)(4) states: “Unless relieved from disability as provided in section

2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use

any firearm or dangerous ordnance, if * * * [t]he person is drug dependent, in danger of

drug dependence, or a chronic alcoholic.” Furthermore, R.C. 3719.011 provides:

       As used in the Revised Code:
Adams App. No. 12CA945                                                                       10

       (A) “Drug of abuse” means any controlled substance as defined in section
       3719.01 of the Revised Code, any harmful intoxicant as defined in section
       2925.01 of the Revised Code, and any dangerous drug as defined in
       section 4729.01 of the Revised Code.

       (B) “Drug dependent person” means any person who, by reason of the use
       of any drug of abuse, is physically, psychologically, or physically and
       psychologically dependent upon the use of such drug, to the detriment of
       the person’s health or welfare.

       (C) “Person in danger of becoming a drug dependent person” means any
       person who, by reason of the person’s habitual or incontinent use of any
       drug of abuse, is in imminent danger of becoming a drug dependent
       person.

       {¶23} Thus, this is not a case where no standard of conduct is specified.

Contrary to Alexander’s assertion that “there is no definite standard to prove who can

fall under the three categories of persons listed in the statute,” the definitions in R.C.

3719.011 identify an objective standard for a person of ordinary intelligence to

determine whether he falls within the classification of drug dependent person or in

danger of becoming a drug dependent person. Although Alexander points to the jury’s

questions during deliberation as evidence that an ordinary person would struggle with

understanding the statute, this does not prove beyond a reasonable doubt that R.C.

2923.13(A)(4) is unconstitutionally vague. As we discuss below, the court initially

included language that was not an element of the offense in its instructions to the jury.

Although the jury returned with questions regarding this additional language, the jury

deliberated and returned with a guilty verdict after the court clearly explained each

element of the offense. This indicates that they understood the statute and what

conduct it prohibited. Moreover, it was the court, rather than the statute itself, that

caused the jury’s initial confusion.
Adams App. No. 12CA945                                                                     11

       {¶24} Alexander also argues that “law enforcement personnel are given

excessive discretion in determining when to enforce this provision,” because “[t]he

statute does not provide any explicit standards for those who are charged with enforcing

it * * *.” However, as we have already indicated, the definitions provided in R.C.

3719.011 provide an objective standard for law enforcement to determine which

persons are prohibited by R.C. 2923.13(A)(4) from carrying a firearm. Therefore,

contrary to Alexander’s assertions, the language in R.C. 3719.011 actually prohibits law

enforcement from exercising excessive discretion. Although he claims that the statute

“can be enforced against non-dangerous gun owners whenever an officer * * * has the

slightest evidence that the gun owner may have recently used or tried drugs,” the

definitions provided in R.C. 3719.011 directly contradict this assertion. Rather, a drug

dependent person must be “physically, psychologically, or physically and

psychologically dependent upon the use of such drug, to the detriment of the person’s

health or welfare”; a person in danger of becoming drug dependent must participate in

“habitual or incontinent use of any drug of abuse” and be “in imminent danger of

becoming a drug dependent person.” R.C. 3719.011(B) & (C). Clearly, a conviction

under R.C. 2923.13(A)(4) requires more than just an officer’s belief that the defendant

has recently used or tried drugs.

       {¶25} Finally, Alexander argues that R.C. 2923.13(A)(4) is unconstitutionally

vague because it infringes on the fundamental right to bear arms. However, under his

first assignment of error we have already declined to address his Second Amendment

claim because Alexander failed to raise it in the trial court. Accordingly, we overrule

Alexander’s second assignment of error.
Adams App. No. 12CA945                                                                       12

                                     C. Jury Instructions

       {¶26} Finally, in his third assignment of error Alexander argues that when the

trial court misstated the law in its instruction to the jury for his weapons under disability

offense, the court violated his right to a fair trial before a properly instructed jury, and his

federal and state right to due process. Specifically, he points out the court’s instructions

included the language “not having been relieved of disability as provided in Section

2923.14 of the Revised Code,” which was included in the indictment, but is not part of

the description of the offense. He claims this confused the jury, resulting in an

erroneous verdict.

       {¶27} Because Alexander failed to object to the court’s jury instructions at trial,

he was waived all but plain error. See ¶ 10 of this opinion (discussing plain error).

       {¶28} “Due process requires that the state establish beyond a reasonable doubt

every fact necessary to constitute the crime charged.” Lynn, 129 Ohio St.3d 146, 2011-

Ohio-2722, 950 N.E.2d 931, at ¶ 15. “As a general rule, a defendant is entitled to have

the jury instructed on all elements that must be proved to establish the crime with which

he is charged * * *.” State v. Adams, 62 Ohio St.2d 151, 153, 404 N.E.2d 144 (1980).

       {¶29} R.C. 2923.13(A)(4) states: “Unless relieved from disability as provided in

section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or

use any firearm or dangerous ordnance, if * * * [t]he person is drug dependent, in

danger of drug dependence, or a chronic alcoholic.” However, “unless relieved from

disability” is not an element of the offense, but an affirmative defense. See State v.

Whitaker, 4th Dist. No. 07CA3168, 2008-Ohio-4149, ¶ 20. Therefore, the defendant

rather than the state has the burden of proof on that issue. Id. Accordingly, the
Adams App. No. 12CA945                                                                     13

language is not included in the Ohio Jury Instructions for R.C. 2923.13(A). 3 Ohio Jury

Instructions, Section 523.13 (2012).

       {¶30} When the court initially provided the instructions to the jury, it stated :

       Before you can find the defendant guilty in count one, having weapons while
       under disability you must find beyond a reasonable doubt that on or about
       January 14th, 2011, in Adams County, Ohio, that the defendant, Barry
       Alexander, not having been relieved from disability as provided in Section
       2923.14 of the Revised Code, did knowingly acquire, have, carry or use a
       firearm or dangerous ordinance, and that said Barry Alexander is drug
       dependent, in danger of drug dependence, or is a chronic alcoholic. This
       act is alleged to be in violation of Ohio Revised Code 2923.13(A)(4).

       {¶31} After the court finished addressing the jury, the state informed the court

that it included the language “not having been relieved from disability,” but that the Ohio

Jury Instructions do not include it as an element of the offense and it was concerned

that the jury would determine that it was essential element that the state must prove.

The court asked both counsel whether they would like it corrected. The state

responded that it was not seeking a curative instruction, but would like the language

omitted from the written instructions provided to the jury. Alexander’s counsel clarified

that he did not have any objection and would “leave it to the discretion of the court.”

The court agreed and did not give a curative instruction before the jury began

deliberations.

       {¶32} Once the jury left the courtroom, the court again discussed the issue with

counsel. Defense counsel again stated that he would “leave it to the sound discretion of

the court.” The court decided that it was not going to strike the language from the jury

instructions, but rather if the jury returned with a question, it would respond that the

statutory language was not an essential element, but an affirmative defense that the

defense must raise.
Adams App. No. 12CA945                                                                    14

       {¶33} After approximately 45 minutes of deliberation, the jury returned with its

first question for the court. The three-part question asked: 1.) “was Mr. Alexander under

weapons disability on January 14th, 2011;” 2.) “if he was under the disability what was

the charges pertaining to this restriction;” and 3.) “define disability to have weapons

while under this.”

       {¶34} The court proposed to answer part one of the jury’s question in the

negative and part two not as applicable. Addressing part three, it responded:

       The words “not having been relieved of disability as provided in Section
       2923.14 of the Revised Code” are not part of the description of the offense.
       Rather it is an affirmative defense that may be asserted by the defendant.
       “Not having been relieved of this disability” is not an essential element
       required proved by the State of Ohio. The essential element of “having
       weapons while under disability,” which is required proven beyond a
       reasonable doubt requires a finding of Mr. Alexander “drug dependent
       person” or “in danger of becoming a drug dependent person” or “chronic
       alcoholic.” The definition of each can be found on pages 5 and 6 of the jury
       instructions submitted.

       Defense counsel stated that he was “satisfied with the answer.”

       {¶35} Shortly thereafter, the jury submitted its second question for the court:

“Why does the court instructions say that Barry Alexander ‘not having been relieved of

disability as provided under section 2923.14 of the Revised Code’? And your response

to the question previously asked about if he was on weapons disability stated he was

not on weapons disability. Define weapons disability.”

       {¶36} The court again responded without objection from defense counsel: “The

court instructions that say that Barry Alexander ‘not having been relieved of disability as

provided under section 2923.14 of the Revised Code.’ The Court’s instructions say that

because this is the statutory language from which the Court has no authority to change.”

In response to the defining weapons disability inquiry, the court responded:
Adams App. No. 12CA945                                                                      15

       Having a weapons disability requires you to find beyond a reasonable
       doubt each of the following: 1.) on or about January 14th, 2011, in Adams
       County Ohio; 2.) Barry Alexander; 3.) did knowingly acquire, have, carry, or
       use a firearm or dangerous ordinance; 4.) and the said Barry Alexander
       was drug dependent, in danger of drug dependence, or was a chronic
       alcoholic. The statutory language “not having been relieved from disability
       as provided in Section 2923.14 of the Revised Code” is not an essential
       element required proven by the State of Ohio. It is simply statutory
       language not applicable to the subject case.

There were no further questions from the jury after this response, and the jury

deliberated for nearly three more hours before returning with a guilty verdict.

       {¶37} Alexander points to the jury’s questions and the court’s responses as

evidence of prejudicial error. However we disagree, especially considering that

Alexander’s trial counsel consented to all of the court’s responses. In its last response,

the court clearly explained each element of the offense and that “not having been

relieved from disability” is not an essential element that the state must prove. Any error

by the court was cured with its responses, allowing the jury to consider the proper

elements. Accordingly, we cannot say that the error affected Alexander’s substantial

rights. We overrule Alexander’s third assignment of error.

                                    IV. CONCLUSION

       {¶38} In conclusion, we decline to address Alexander’s first assignment of error

because he failed to raise the constitutional issue at the trial court level. We overrule

his second and third assignment of errors and affirm the trial court’s judgment.

                                                                 JUDGMENT AFFIRMED.
Adams App. No. 12CA945                                                                      16

                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Adams
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

McFarland, P.J. & Abele, J.: Concur in Judgment and Opinion.

                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
