[Cite as State v. Tarbert, 2019-Ohio-1580.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. William B. Hoffman, P.J.
                                               :       Hon. Patricia A. Delaney, J.
                         Plaintiff-Appellant   :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 18CA56
MATTHEW ERWIN TARBERT                          :
                                               :
                      Defendant-Appellee       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Richland County
                                                   Court of Common Pleas, Case No. 2018-
                                                   CR-0208

JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            April 22, 2019


APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

GARY BISHOP                                        JEFFEREY R. STIFFLER
PROSECUTING ATTORNEY                               21 North Walnut Street
BY: JOSEPH C. SNYDER                               Mansfield, OH 44902
Assistant Prosecutor
38 South Park Street
Mansfield, OH 44902
Baldwin, J.

        {¶1}     Matthew Tarbert appeals his conviction for carrying a concealed weapon in

violation of R.C. 2923.12(A)(1), a felony of the fourth degree. Appellee is the state of Ohio.
Richland County, Case No. 18CA56                                                       2


                       STATEMENT OF FACTS AND THE CASE

       {¶2}   When appellant’s twelve year old son, K.T. was brought before Judge

Ronald Spon of the Richland County Juvenile Court for an incident that occurred at

school, the Judge acquired information that led him to modify appellant’s visitation with

K.T. Appellant learned of this modification and lashed out in a manner that led to his

arrest and ultimate conviction.

       {¶3}   K.T. appeared in Richland County Juvenile Court before Judge Spon on

February 7, 2015 regarding an event at school. He was accompanied by Charles Tarbert,

K.T.’s grandfather and legal custodian. Judge Spon talked with K.T. as part of his

standard procedure to assist in planning what assistance K. T. may need to avoid further

problems at school and additional juvenile court appearances. During the hearing, K.T.

made comments that led Judge Spon to conclude that the current visitation schedule was

not in K.T.’s best interest, so he issued a temporary order compelling appellant to come

to Richland County to visit K.T. Appellant was notified and he became angry, belligerent

and frustrated.

       {¶4}   Appellant made several calls to Richland County Juvenile Court regarding

this order and expressed his anger to Julie Myers, a juvenile court employee during a

telephone call on February 9, 2015. She attempted to explain the circumstances to

appellant and that a review hearing could be conducted, but appellant was not mollified

and, instead ended the conversation with the comment “someone needs to take a bullet

up there.” Ms. Myer’s reported this comment to her supervisor and court personnel were

warned of appellant’s comments. A review hearing regarding visitation was scheduled for

February 16, 2015, one week after appellant’s conversation.
Richland County, Case No. 18CA56                                                        3


       {¶5}   In the intervening days, Amy Tarbert, appellant’s step-mother, notified the

Juvenile Court of appellant’s FaceBook posts expressing anger toward Judge Spon,

juvenile court personnel and appellant’s father and step mother. Appellant’s threats and

photographs of an AR-15 in his possession, all posted on FaceBook, prompted Judge

Spon to prepare for a possible violent encounter with appellant on the day of the hearing.

He suspended all visitation between appellant and K.T. He convened an emergency

meeting with law enforcement officials regarding the threats and they agreed upon a plan

designed to eliminate any possibility of harm to the public or court staff.

       {¶6}   When appellant arrived for the hearing on February 16, 2015, he was

confronted by two plainclothes officers who confirmed that he was not armed and asked

if he had any weapons in his vehicle. He indicated that he had his AR-15 underneath the

back seat of his vehicle with ammunition in a bag under the front seat. The officers

searched appellant for weapons and permitted appellant to enter the court and attend the

review hearing.

       {¶7}   When appellant left the court he was arrested. His vehicle was to be towed,

but he mentioned that it was a rental and not his personal vehicle. The officers contacted

the rental company regarding the vehicle and the company representative stated that they

would send someone to pick up the vehicle to avoid a towing charge. The officers

mentioned that there was a weapon in the vehicle and the rental company asked that all

personal property be removed from the vehicle prior to their taking possession.

       {¶8}   The officers agreed to remove any personal property from the rental vehicle.

They created a photographic record of their findings which included an AR-15 that was
Richland County, Case No. 18CA56                                                         4


completely concealed under the back seat and a bag of ammunition including two

magazines for the AR-15, both loaded with ammunition for the AR-15.

        {¶9}   Appellant was charged with intimidation, a violation of R. C. 2921.03 (A), a

felony of the third degree with a firearm specification pursuant to R. C. 2941.145, and a

forfeiture specification pursuant to R. C. 2941.1417; two counts of inducing panic in

violation of section 2913.71 (A)(3), a misdemeanor of the first degree; one count of

carrying a concealed weapon in violation of R. C. 2923.12 (A)(1), a felony of the fourth

degree with a forfeiture specification pursuant to R. C. 2941.1417; one count of improperly

handling firearms in a motor vehicle in violation of section 2923.16 (B), a felony of the

fourth degree with forfeiture specifications pursuant to R. C. 2941.1417.

        {¶10} The state presented this matter to a jury on June 20, 2018, and after

presentation of the evidence appellant was convicted of two counts of inducing panic and

one count of carrying a concealed weapon. He was acquitted on the remaining charges.

Appellant filed a timely notice of appeal and submitted four assignments of error:

        {¶11} “I.    THE     TRIAL      COURT       ERRED       WHEN        IT    DENIED

APPELLANT/DEFENDANT'S RULE 29 MOTION TO DISMISS COUNT FOUR,

CARRYING CONCEALED WEAPON, WHICH DENIED APPELLANT DUE PROCESS

OF LAW AS GUARANTEED BY THE CONSTITUTION OF THE UNITED STATES AND

OHIO.

        {¶12} “II.   APPELLANT'S     CONVICTION       FOR     CARRYING      CONCEALED

WEAPON WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
Richland County, Case No. 18CA56                                                         5


      {¶13} “III. APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF

COUNSEL, IN VIOLATION OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS

AND HIS RIGHTS UNDER THE OHIO CONSTITUTION.

      {¶14} “IV. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY

ON R.C. 2923.12(C)(1)(c), WHICH, IF THE JURY FOUND THE CIRCUMSTANCES OF

THAT SUBSECTION MET, WOULD RENDER R.C. 2923.12 INAPPLICABLE, THUS

PRECLUDING        APPELLANT'S       CONVICTION       FOR     CARRYING       CONCEALED

WEAPON.”

                                   STANDARD OF REVIEW

      {¶15} In his First Assignment of Error, appellant contends the trial court erred by

denying his motion to dismiss the charge of carrying a concealed weapon because the

weapon was not within immediate physical reach when he was arrested and because it

was not concealed in his vehicle while it was transported.

      {¶16} Crim.R. 29(A) governs a motion for acquittal:

             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.

      {¶17} “A motion for acquittal under Crim.R. 29(A) is governed by the same

standard as the one for determining whether a verdict is supported by sufficient evidence.”

State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 164,
Richland County, Case No. 18CA56                                                          6


reconsideration denied, 147 Ohio St.3d 1480, 2016-Ohio-8492, 66 N.E.3d 766, quoting

State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. “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.” Id., quoting State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus.

                                           ANALYSIS

       {¶18} Appellant has been charged with a violation of R.C. 2923.12(A)(1), Carrying

a Concealed Weapon which states: “No person shall knowingly carry or have, concealed

on the person's person or concealed ready at hand, any of the following: *** A deadly

weapon other than a handgun.” The charge is referencing the AR-15 rifle appellant had

concealed in his vehicle underneath the seat, with ammunition concealed under the front

seat, all of which were accessible to appellant from the driver’s seat in the vehicle.

Appellant admitted that he drove the vehicle from his home in Butler County, Ohio to the

hearing at Richland County Juvenile Court with the weapon and ammunition in the

vehicle, but denied that the weapon was concealed before he left the vehicle.

       {¶19} Appellant’s first argument is an attempt to add language to R.C.

2923.12(A)(1) to create a defense. He argues that he did not have the weapon on his

person or ready at hand when he was arrested and thus he committed no offense.

Revised Code 2923.12(A)(1) contains no requirement that he be in possession of the

weapon or have it ready at hand when he is arrested and it does not require an arrest

only while the appellant was committing the offense. We therefor reject the first part of

appellant’s argument.
Richland County, Case No. 18CA56                                                          7


       {¶20} Appellant next contends that the weapon was not concealed during the

transport from his home to his parking space near the court.          He testified that he

concealed the weapon under the back seat of the truck only after he arrived and only to

avoid theft. The investigating officers found the weapon and the ammunition concealed

beneath the back and front seats respectively, so the appellant’s credibility is the focal

point of this portion of appellant’s argument. The weight to be given to the evidence and

the credibility of the witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212 (1967). The trier of fact “has the best opportunity to view the

demeanor, attitude, and credibility of each witness, something that does not translate well

on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159

(1997).The jury was free to believe or reject appellant’s assertion that he concealed the

weapon only after he arrived in Mansfield and parked his vehicle and the jury rejected the

appellant’s contention.

       {¶21} We hold that, 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. Appellant’s first assignment of error is denied.

       {¶22} In his second assignment of error, appellant contends that his conviction for

carrying a concealed weapon was not supported by sufficient evidence. This argument

was combined with his argument regarding the First Assignment of Error. As we have

noted above, the standard of review for the first assignment of error, regarding an alleged

erroneous denial of a Crim. R. 29 motion, is indistinct from the standard for review of an

assertion of lack of sufficient evidence. Because the analysis is essentially the same, our

conclusion is the same: we hold that, after viewing the evidence in a light most favorable
Richland County, Case No. 18CA56                                                           8


to the prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt. Appellant’s second assignment of error is

denied.

        {¶23} Appellant’s Third and Fourth Assignments of error rely upon the

interpretation of R.C. 2923.12(C)(1)(c) so we will address that Code Section before

considering the merits of the argument.            To the extent that resolution of these

assignments of error involve the interpretation of the statute, our review is de novo. Riedel

v. Consol. Rail Corp., 125 Ohio St.3d 358, 2010–Ohio–1926, 928 N.E.2d 448, ¶ 6 (2010).

        {¶24} Revised Code 2923.12(C)(1)(c) provides:

        (C)(1) This section 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;

        {¶25} Appellant debates whether this subsection adds an element to the offense

of carrying a concealed weapon or creates an affirmative defense to that charge. We

hold that the statute creates an affirmative defense and that appellant waived that defense

by failing to assert it at trial.

        {¶26} Revised Code 2901.05(D)(1) defines an affirmative defense as:

        (a) A defense expressly designated as affirmative;
Richland County, Case No. 18CA56                                                          9


         (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.

         {¶27} Revised Code Section 2923.12 does expressly provide for defenses, and

while subsection (C)(1)(c) is not included as a defense that is “expressly designated as

affirmative,” it is “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.” The “lawful purpose” for the transportation of the weapon is an

“excuse or justification peculiarly within the knowledge of the accused” because it is the

appellant’s internal motivation that determines his purpose. Compelling the appellee to

refute every potential lawful purpose would be unnecessarily burdensome when the

alleged “lawful purpose” is within appellant’s knowledge and it would be fair and practical

for him to provide supporting evidence. The Second District Court of Appeals reached

the same conclusion in State v. Johnson, 2nd Dist. Montgomery No. 25773, 2014-Ohio-

2815, ¶ 32, and we see no reason to reach a different interpretation.

         {¶28} Now that we have determined that R.C. 2923.12(C)(1)(c) creates an

affirmative defense, we will consider the appellant’s Third and Fourth Assignments of

Error.

         {¶29} Appellant submits that he was deprived of effective assistance of counsel

because his trial counsel failed to assert the affirmative defense described in R.C.

2923.12(C)(1)(c). Reversal of a conviction or sentence based upon ineffective assistance

of counsel requires satisfying the two-prong test set forth in Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that the defendant
Richland County, Case No. 18CA56                                                        10


show, first, that counsel's performance was deficient and, second, that counsel's deficient

performance prejudiced the defense so as to deprive the defendant of a fair trial. Id. at

687, 104 S.Ct. 2052, 80 L.Ed.2d 674. In order to show deficient performance, the

defendant must prove that counsel's performance fell below an objective level of

reasonable representation. To show prejudice, the defendant must show a reasonable

probability that, but for counsel's errors, the result of the proceeding would have been

different. Id.; State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989).

      {¶30} Appellant argued in the court below that the AR-15 was not concealed while

he was in the vehicle driving to the court in Richland County. He testified that he

concealed the weapon only after he arrived and parked the vehicle so as to not tempt

someone to break into the vehicle and take the weapon. “And I took the AR and I put it

under the back seat. The last thing I want was somebody to bust a window, take the

firearm, and start shooting up something.” (Trial Transcript, page 48, Lines 20-21). His

testimony was inconsistent with the affirmative defense in subsection (C)(1)(c) which

would have required an admission that he had concealed the weapon at some earlier

point in his travels, but that he was transporting it for a lawful purpose. His counsel

evidently concluded that appellant’s best defense was to deny that the weapon had ever

been concealed and, under the circumstances, we cannot find that counsel's performance

fell below an objective level of reasonable representation. The threat that Julie Myers

described and the threatening Facebook posts could have led appellant’s counsel to

conclude that the best course of action was to avoid a thorough review of appellant’s

purpose for transporting the weapon to a court hearing and “[w]e will not second-guess

the strategic decisions counsel made at trial even though appellate counsel now argue
Richland County, Case No. 18CA56                                                          11

that they would have defended differently.” State v. Post, 32 Ohio St.3d 380, 388, 513

N.E.2d 754 (1987) as quoted in State v. Mason, 82 Ohio St.3d 144, 169, 1998-Ohio-370,

694 N.E.2d 932 (1998).

       {¶31} Appellant’s third assignment of error is overruled.

       {¶32} Appellant next argues that the trial court erred by failing to include a jury

instruction regarding the affirmative defense described in R.C. 2923.12(C)(1)(c) and that

the omission was plain error. In order to prevail under a plain error analysis, appellant

bears the burden of demonstrating that the outcome of the trial clearly would have been

different but for the error. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978); Crim.R.

52(B). Notice of plain error “is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” Long at paragraph

three of the syllabus.

       {¶33} We interpret appellant’s argument regarding the inclusion of a jury

instruction to apply only if we found that R.C. 2923.12(C)(1)(c) is not an affirmative

defense. Appellant states on pages 17-18 of his brief: “[i]f this Court finds that section

does not constitute an affirmative defense, such that it would be on defense counsel to

raise said defense at trial and request a jury instruction on same, then Appellant avers

that a jury should be instructed as to R.C. 2923.12(C)(1) and its subsections, regardless

if that instruction is found in the Ohio Jury Instructions.” (Emphasis sic.) As we have found

that R.C. 2923.12(C)(1)(c) is an affirmative defense in this case, the appellant’s fourth

assignment of error is moot and we deny the same.
Richland County, Case No. 18CA56                                                12


      {¶34} The decision of the Richland County Court of Appeals is affirmed.

By Baldwin, J.,

Delaney, J. concurs

Hoffman, P.J. concurs separately.
Richland County, Case No. 18CA56                                                          13

Hoffman, P.J., concurring
      {¶35} I concur in the majority’s analysis and disposition of Appellant’s first and

second assignments of error. More specifically, I agree R.C. 2923.12(A)(1) does not

require the deadly weapon be in a person’s possession at the time of arrest nor require

an arrest only while the defendant is committing the offense.

       {¶36}   As it pertains to Appellant’s claim R.C. 2923.12(C)(1)(c) precludes

conviction as a matter of law, I agree with the majority’s rejection of this claim as being a

credibility issue. As duly noted by the majority, “The jury was free to believe or reject

appellant’s assertion that he concealed the weapon only after he arrived in Mansfield and

parked his vehicle and the jury rejected the appellant’s contention.” (Maj. Op. at ¶20). I

would add, just as we rejected Appellant’s contention possession of the rifle at the time

of his arrest is a requirement for conviction, given Appellant’s admission he concealed

the rifle, the exact point in time when he concealed it may be legally irrelevant because it

was ready at hand immediately upon being concealed.

       {¶37} As it pertains to Appellant’s third assignment of error, I concur in the

majority’s analysis and conclusion R.C. 2923.12(C)(1)(c) is an affirmative offense.

       {¶38} The majority rejects Appellant’s ineffective assistance of counsel claim

premised upon counsel’s failure to assert R.C. 2923.12(C)(1)(c) as an affirmative defense

because it finds Appellant’s testimony was inconsistent with the subsection. (Maj. Op. at

¶30). The majority maintains subsection (C)(1)(c) would have required an admission

Appellant had concealed the rifle at some earlier point in his travels, but that he was

transporting it for a lawful purpose; concluding his counsel determined the best defense

was to deny the rifle had ever been concealed [during transport]. Id. I disagree.
Richland County, Case No. 18CA56                                                                        14


        {¶39} The subsection permits the rifle in this case to be transported and/or stored

in a motor vehicle for “any lawful purpose” if it is not on the actor’s person. While the

majority focuses on Appellant’s testimony the rifle was concealed only after parking near

the courthouse, Appellant did proffer a lawful purpose for transporting the rifle from

Hamilton to Mansfield - that being to make the scope active by sighting it at his friend

Linda’s house after court,1 and if not allowed to do so at Linda’s, he would have gone to

Jeremy’s or Josh’s house (to sight the scope). If believed by the jury, the affirmative

defense in subsection (C)(1)(c) would preclude conviction even if the rifle in this case was

transported concealed.          Accordingly, unlike the majority, I do not find Appellant’s

testimony inconsistent with the affirmative defense in subsection (C)(1)(c).

        {¶40} Despite this disagreement, I concur with the majority’s decision to overrule

Appellant’s third assignment of error based upon Appellant’s failure to meet the second

prong of the Strickland test. In light of all of the evidence, I do not find a reasonable

probability exists the outcome of the trial would have been different had counsel for the

Appellant specifically raised subsection (C)(1)(c) as an affirmative defense.

        {¶41} Finally, I concur in the majority’s disposition of Appellant’s fourth

assignment of error. However, I disagree with its interpretation Appellant’s argument

therein applies only if we find R.C. 2923.12(C)(1(c) is not an affirmative defense and its

corollary conclusion such renders this assignment of error moot. I interpret Appellant’s

argument to be regardless whether R.C. 2923.12(C)(1)(c) is found to be an affirmative

defense, if the jury found the circumstances of the subsection met, it would be plain error

not to instruct the jury on it.


1 Linda [Kopina] testified she had previously told Appellant he can’t shoot at her house with those types of
rifles.
Richland County, Case No. 18CA56                                                         15


       {¶42} Nevertheless, I agree with the majority’s decision to overrule Appellant’s

fourth assignment of error for the same reason I would overrule Appellant’s third

assignment of error. Based upon all of the evidence, I do not find a reasonable probability

exists the outcome of the trial would have been different had the trial court instructed the

jury on subsection (C)(1)(c).
