[Cite as State v. Todd, 2011-Ohio-5800.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                :    JUDGES:
                                             :    Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :    Hon. Sheila G. Farmer, J.
                                             :    Hon. Patricia A. Delaney, J.
v.                                           :
                                             :
STEPHEN M. TODD                              :    Case No. 2011CA00020
                                             :
        Defendant-Appellant                  :    OPINION




CHARACTER OF PROCEEDING:                          Appeal from the Canton Municipal
                                                  Court, Case No. 2010CRB02826



JUDGMENT:                                         Affirmed




DATE OF JUDGMENT:                                 November 7, 2011




APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

KATIE ERCHICK                                     GEORGE URBAN
218 Cleveland Avenue, SW                          116 Cleveland Avenue, NW
P.O. Box 24218                                    Suite 808
Canton, OH 44701-4218                             Canton, OH 44702
Stark County, Case No. 2011CA00020                                                      2

Farmer, J.

       {¶ 1} On July 3, 2010, Ohio State Highway Patrol Trooper William Lee stopped

appellant, Stephen Todd, for rolling through a stop sign while he was operating his

motorcycle. As Trooper Lee approached appellant, he observed a firearm in a holster

on his person. As a result, appellant was charged with improperly handling a firearm in

a motor vehicle in violation of R.C. 2923.16(C).

       {¶ 2} On December 21, 2010, appellant filed a motion to dismiss, arguing the

complaint failed to allege any violation of the law because he was "on" a motorcycle, not

"in" a motor vehicle. By judgment entry filed December 23, 2010, the trial court denied

the motion.

       {¶ 3} A jury trial commenced on December 29, 2010. Appellant made motions

for acquittal pursuant to Crim.R. 29, using the same arguments as in his motion to

dismiss.     The trial court denied the motions.    The jury found appellant guilty.   By

judgment entry filed December 30, 2010, the trial court sentenced appellant to thirty

days in jail, suspended in lieu of thirty hours of community service.

       {¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶ 5} "THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION

TO DISMISS AND HIS SUBSEQUENT MOTION FOR ACQUITTAL PURSUANT TO

RULE 29."
Stark County, Case No. 2011CA00020                                                      3


                                             II

         {¶ 6} "APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT

AND SUFFICIENCY OF THE EVIDENCE."

                                             III

         {¶ 7} "THE TRIAL COURT ERRED WHEN IT FAILED TO PERMIT THE

TESTIMONY OF APPELLANT'S EXPERT, JAMES KESTEL, TO BE HEARD BY THE

JURY."

                                             IV

         {¶ 8} "THE TRIAL COURT ERRED IN FAILING TO GIVE THE JURY

INSTRUCTION ON THE WORD 'IN' AS IT WAS AN ELEMENT THAT THE

PROSECUTION WAS REQUIRED TO PROVE BEYOND A REASONABLE DOUBT."

                                            I, II

         {¶ 9} Appellant claims the trial court erred in denying his motion to dismiss and

subsequent Crim.R. 29 motions for acquittal, and his conviction was against the

sufficiency and manifest weight of the evidence. We disagree.

         {¶ 10} Crim.R. 29 governs motion for acquittal.      Subsection (A) states the

following:

         {¶ 11} "The court on motion of a defendant or on its own motion, after the

evidence on either side is closed, shall order the entry of a judgment of acquittal of one

or more offenses charged in the indictment, information, or complaint, if the evidence is

insufficient to sustain a conviction of such offense or offenses. The court may not

reserve ruling on a motion for judgment of acquittal made at the close of the state's

case."
Stark County, Case No. 2011CA00020                                                        4


       {¶ 12} The standard to be employed by a trial court in determining a Crim.R. 29

motion is set out in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus:

       {¶ 13} "Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of

acquittal if the evidence is such that reasonable minds can reach different conclusions

as to whether each material element of a crime has been proved beyond a reasonable

doubt."

       {¶ 14} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks (1991), 61 Ohio St.3d 259. "The relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt." Jenks at

paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307. On

review for manifest weight, a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine "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 and

a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175. See also, State

v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial "should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction." Martin at 175.

       {¶ 15} Appellant argues the statute of improperly handling of a firearm in a motor

vehicle in violation of R.C. 2923.16(C) specifically uses the word "in" a motor vehicle as

opposed to "on." It is appellant's position that because he had a holstered, visible
Stark County, Case No. 2011CA00020                                                        5


firearm on his person while he was riding a motorcycle, he was not "in" a motor vehicle,

but was "on" a motor vehicle. R.C. 2923.16(C) states the following:

       {¶ 16} "(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:

       {¶ 17} "(1) In a closed package, box, or case;

       {¶ 18} "(2) In a compartment that can be reached only by leaving the vehicle;

       {¶ 19} "(3) In plain sight and secured in a rack or holder made for the purpose;

       {¶ 20} "(4) If the firearm is at least twenty-four inches in overall length as

measured from the muzzle to the part of the stock furthest from the muzzle and if the

barrel is at least eighteen inches in length, either in plain sight with the action open or

the weapon stripped, or, if the firearm is of a type on which the action will not stay open

or which cannot easily be stripped, in plain sight."

       {¶ 21} Subsection (A) states, "[n]o person shall knowingly discharge a firearm

while in or on a motor vehicle." Appellant argues because this subsection includes the

prepositions "in" and "on," the omission by the Ohio General Assembly of the "on" in

subsection (C) was a purposeful exclusion for motorcycle riders.

       {¶ 22} In State v. Hill (1986), Ross App. No. 1324, our brethren from the Fourth

District addressed this issue as follows:

       {¶ 23} "As we believe appellant's actions came within the purview of R.C.

2923.16, we reject appellant's argument the statute was not drawn to include

transportation by means of motorcycle. We note R.C. 4511.01(C) defines a motorcycle
Stark County, Case No. 2011CA00020                                                        6

as a motor vehicle. See also Jirovesek v. Prudential Insurance Co. of America (1971),

27 Ohio St.2d 62 at 64 which stated: '***the term 'motor vehicle' has a normal meaning

in common usage with includes motorcycle.' "

       {¶ 24} Appellant argues in Hill, the weapon was in a case in a holster concealed

under the defendant's jacket and therefore the holding in Hill is distinguishable from his

case. As the Hill court noted:

       {¶ 25} "The legislative comments to this statute explain the rule is 'designed to

include the ways in which responsible gun hobbyists and sportsmen agree that firearms

should be transported, both from the standpoint of safety and in the interests of

protecting valuable weapons from damage'."

       {¶ 26} This writer concurs with this comment as she is married to a sportsman

and has a son-in-law who is a sportsman and in law enforcement.

       {¶ 27} The advent of Ohio's concealed carry law as to facts in this case is non-

germane to this discussion. It is true that under Ohio's concealed weapons law, a

visible holstered weapon would not violate the law if appellant was walking down the

street. However, the transportation of weapons in or on a motor vehicle is of primary

importance to the safety of the other passengers and the general public.

       {¶ 28} Although I am loath to continue this semantic dialogue, I believe it is

important to note the grammar issues involved.         The action verb of the statutory

language is "knowingly transport." This is of critical importance as "in" and "on" are

prepositions that by definition are words "that indicates the relation of a substantive to a

verb, an adjective, or another substantive."      The American Heritage Dictionary (2

College Ed.1985) 978.      Given this definition, the firearm that is the object of the
Stark County, Case No. 2011CA00020                                                          7


statutory sentence may only be transported in specific fashion. The transport of the

firearm that is involved as the subject is when it is done in conjunction with a motor

vehicle. R.C. 4511.01(C) defines a motorcycle as a "motor vehicle." Therefore, the use

of "in" or "on" in the transport of a weapon is restricted by the statutory language.

       {¶ 29} After stopping appellant for rolling a stop sign while operating his

motorcycle, Trooper Lee approached appellant and observed "he had a firearm to the

left rear of his small of his back" in a holster. T. at 100, 102-103, 105.

       {¶ 30} Upon review, we find the trial court did not err in denying appellant's

motion to dismiss and Crim.R. 29 motion for acquittal. In addition, we find sufficient

credible evidence to support the conviction, and no manifest miscarriage of justice.

       {¶ 31} Assignments of Error I and II are denied.

                                             III

       {¶ 32} Appellant claims the trial court erred in prohibiting the testimony of his

expert, James Kestel. We disagree.

       {¶ 33} The admission or exclusion of evidence lies in the trial court's sound

discretion. State v. Sage (1987), 31 Ohio St.3d 173. In order to find an abuse of that

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217.

       {¶ 34} Pursuant to Evid.R. 104, the trial court is the initial gatekeeper on the

issue of admissibility of evidence. In addition, the trial court is initially required to pass

on the issue of relevancy (Evid.R. 401) and qualification as an expert (Evid.R. 702).

       {¶ 35} The trial court limited Mr. Kestel's testimony as follows:
Stark County, Case No. 2011CA00020                                                          8


       {¶ 36} "THE COURT: Okay. I think the Court indicated that Mr. Kestel would be

able to discuss his knowledge of motorcycles and I believe one of the issues was – or

one of the things that Mr. Kestel would be testifying to would be accessories to

motorcycles for whatever help that the defense believes this would be to the jury. But

Mr. Kestel is not going to be able to get into the 'in' or 'on' argument. That is not – he is

not qualified to give any kind of an opinion on that and, but I would allow him to testify

about motorcycle designs and accessories. I think that if the defense believes that in

presenting their case they need this testimony to enlighten the jury about motorcycles."

T. at 175-176.

       {¶ 37} Defense counsel then made the following proffer:

       {¶ 38} "Q. And is it true that within that industry we can find lots of literature that

indicate that operators of motorcycles are riders?

       {¶ 39} "A. That's correct.

       {¶ 40} "Q. And why is that distinction made?

       {¶ 41} "A. Well it's because they ride on the motorcycle not in it.

       {¶ 42} "Q. And if you were in a car or truck or some other enclosed vehicle you

would not be called a rider, is that fair?

       {¶ 43} "A. That's correct. You'd be called a driver or operator." T. at 179.

       {¶ 44} Mr. Kestel did testify as to the various designs of motorcycles. T. at 182-

188.

       {¶ 45} Upon review, we find the trial court did not abuse its discretion in denying

Mr. Kestel to testify as to the ultimate legal question posed and addressed in

Assignments of Error I and II.
Stark County, Case No. 2011CA00020                                                        9


          {¶ 46} Assignment of Error III is denied.

                                               IV

          {¶ 47} Appellant claims the trial court erred in not instructing the jury on the

definitions of "in" and "on." We disagree.

          {¶ 48} As the trial court made the legal determination that the in/on semantic

argument was a legal issue, it was not within the jury's province to so determine. We

find the trial court's decision to be consistent with our analysis in Assignments of Error I

and II.

          {¶ 49} Assignment of Error IV is denied.

          {¶ 50} The judgment of the Canton Municipal Court of Stark County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




                                                s/ Sheila G. Farmer___________________



                                                s/ W. Scott Gwin_____________________



                                                s/ Patricia A. Delaney   _____________

                                                              JUDGES
[Cite as State v. Todd, 2011-Ohio-5800.]


                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
v.                                             :         JUDGMENT ENTRY
                                               :
STEPHEN M. TODD                                :
                                               :
        Defendant-Appellant                    :         CASE NO. 2011CA00020




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Canton Municipal Court of Stark County, Ohio is affirmed. Costs to

appellant.




                                               s/ Sheila G. Farmer___________________



                                               s/ W. Scott Gwin_____________________



                                               s/ Patricia A. Delaney   _____________

                                                             JUDGES
