[Cite as State v. Meyers, 2014-Ohio-1357.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NOS. 2013-L-042
        - vs -                                   :            and 2013-L-043

ROBERT A. MEYERS,                                :

                 Defendant-Appellant.            :


Criminal Appeals from the Painesville Municipal Court.
Case Nos. 13 CRB 149 and 13 TRD 497.

Judgment: Affirmed in part; reversed in part and remanded.


Joseph P. Szeman, Madison Village Law Director, 126 West Main Street, Madison, OH
44057 (For Plaintiff-Appellee).

Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).


TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Robert A. Meyers, appeals his convictions for improperly

handling firearms in a motor vehicle, in violation of R.C. 2923.16, and using weapons

while intoxicated, in violation of R.C. 2923.15. For the reasons that follow, the trial

court’s decision is affirmed in part, reversed in part, and remanded.

        {¶2}     At approximately 12:20 a.m. on January 20, 2013, Madison Village Police

Officer Michael Smith observed a red pick-up truck with heavily-tinted windows exiting
the highway. Officer Smith also observed that the rear license plate light was out.

Officer Smith pulled the vehicle over to discuss these equipment violations with the

driver.    Before exiting his patrol car, Officer Smith entered the truck’s license plate

number in his mobile data terminal and determined that the owner, Robert Meyers, was

licensed to carry a concealed firearm.

          {¶3}   Officer Smith’s patrol car was equipped with a dashboard camera, which

recorded the stop. The audio is very poor, apparently due to high winds. The video

shows that Officer Smith approached the driver’s side of the truck, and Meyers rolled

down his window. Officer Smith asked Meyers for his license and proof of insurance.

While Meyers was retrieving his paperwork, Officer Smith scanned the inside of the

vehicle with a flashlight. Meyers handed his driver’s license to Officer Smith; the officer

examined the driver’s license and inquired of Meyers where he was coming from and

what he was doing that evening. Meyers’ side of the conversation is almost entirely

inaudible.

          {¶4}   Soon after the stop, and after this brief exchange, Meyers can be heard to

say, “I have a concealed carry permit,” to which Officer Smith responds, “all right, well

do you have your weapon in here…oh yes you do.” Officer Smith testified at that point

he observed a handgun on the vehicle floor near the gas pedal. Officer Smith then

drew his service revolver and ordered Meyers not to reach for the weapon and to keep

his hands in plain sight.       Officer Smith ordered Meyers to produce his insurance

documents, which Meyers did. The officer then asked Meyers again to keep his hands

on the steering wheel. It appears that Meyers did not comply with that request because




                                              2
Officer Smith then immediately ordered Meyers out of the vehicle.             Officer Smith

handcuffed Meyers and ordered Meyers to stand against the side of the truck.

       {¶5}   Officer Smith proceeded to question Meyers about the handgun, to which

Meyers replied that he did not have a handgun. Officer Smith requested back up, and

he and Meyers continued to wait by the side of the truck. About five minutes later,

Sergeant Matthew Byers arrived. Meyers was placed in the back of Officer Smith’s

patrol car. While in the patrol car, Officer Smith detected an odor of alcohol, which he

had not previously detected due to the high winds outside. Sergeant Byers requested

Meyers perform a field sobriety test, which Meyers refused. Officer Smith took pictures

of the inside of the truck; he noted that the handgun’s action was open with the slide

locked back and that there was a fully-loaded magazine and a holster on the floor near

the driver’s seat. A second loaded magazine was discovered in the glove compartment

during the vehicle inventory search that followed Meyers’ arrest.

       {¶6}   Officer Smith and Sergeant Byers both testified that Meyers smelled of

alcohol, had slurred speech, and repeated questions many times, apparently either not

remembering or understanding the questions. According to the officers, Meyers also

had trouble understanding basic concepts, e.g., the reason for his arrest. Meyers was

informed that he was under arrest, Mirandized, and transported to the jail.

       {¶7}   Meyers was charged in Painesville Municipal Court with using weapons

while intoxicated and improperly handling firearms in a motor vehicle. Meyers was also

cited for unlawful window tint and for not having any rear license plate illumination.

Meyers pled not guilty to all charges.




                                            3
      {¶8}   Meyers filed several pretrial motions, pro se, including a motion for

appointment of counsel. In addition, he filed a written demand for jury trial. On March

12, 2013, the court held a pretrial hearing concerning Meyers’ pro se motions, including

his motion to compel discovery.     For Meyers’ benefit, the trial court had a public

defender present for this hearing. Meyers indicated he wished to proceed pro se at the

pretrial hearing and that he had a suppression motion he wanted to file. He said he did

not want counsel for the suppression hearing, even though the trial court encouraged

him to take advantage of the attorney the trial court provided for him. Meyers indicated

that he wanted counsel for the jury trial. The court discussed the charges, ensuring

Meyers understood the charges against him and what the state would have to prove at

trial. The court told Meyers he would be wise to take advantage of appointed counsel

because he would otherwise get lost in procedure. At the end of the pretrial hearing,

the trial court appointed counsel and granted a continuance so that Meyers could

consult with counsel about the suppression motion.

      {¶9}   A suppression motion was subsequently filed, and a hearing was held on

that motion on March 26, 2013. Meyers again refused counsel’s assistance at this

hearing and argued the suppression motion himself, though counsel was available and

in court. The trial court granted the suppression motion in part and denied it in part.

The trial court held that any statements Meyers made after Officer Smith placed him in

the patrol car, but before Meyers was made aware of his Miranda rights, would be

suppressed. At the end of the suppression hearing, the issue of appointed counsel was

again addressed:

             Prosecuting Attorney: The silent record could be a problem.




                                           4
              The Court: Yeah, he had indicated before that he did not wish to
              have counsel at the motion to suppress. He had counsel available.
              Obviously he has not availed himself of that counsel even though a
              counsel is in court and available. And, Mr. Meyers, you obviously
              by your actions have chosen not to have an attorney sit with you; is
              that correct?

              Mr. Meyers: Correct.

              The Court: I have appointed one for the jury trial. She is here in
              the courtroom and, once again, the offer is there, but by action in
              action alone if you do not wish to have the attorney present, it’s
              entirely up to you.

       {¶10} On the day of trial, Meyers signed an “Acknowledgment of Rights and

Waiver of Counsel.”     Meyers represented himself at trial, but had standby counsel

available throughout the proceedings. Meyers was convicted by a jury of improperly

handling firearms in a motor vehicle and using weapons while intoxicated. The judge

also found Meyers guilty of the two minor misdemeanor traffic violations.

       {¶11} Appellant, now represented by counsel, filed a notice of appeal and

asserts five assignments of error. Appellant’s first assignment of error states:

       {¶12} “The trial court erred when it permitted the defendant-appellant to

represent himself without first obtaining an effective waiver of his constitutional right to

counsel.”

       {¶13} In his first assignment of error, appellant contends that the trial court erred

in failing to conduct the proper inquiry to determine whether his waiver of counsel was

made voluntarily, knowingly, and intelligently.    Appellant argues his waiver was not

voluntary, knowing, and intelligent and was thus ineffective. Considering the totality of

the record, we find that appellant gave an effective waiver.




                                             5
       {¶14} Faretta v. California, 422 U.S. 806 (1975) holds that a defendant seeking

to waive his right to counsel and represent himself must “knowingly and intelligently

forgo” the benefits of counsel.

              Although a defendant need not himself have the skill and
              experience of a lawyer in order competently and intelligently to
              choose self-representation, he should be made aware of the
              dangers and disadvantages of self-representation, so that the
              record will establish that ‘he knows what he is doing and his choice
              is made with eyes open.’

Id. at 835 (citation omitted). “Once the right to counsel is properly waived, trial courts

are permitted to appoint standby counsel to assist the otherwise pro se defendant” even

over the defendant’s objections. State v. Martin, 103 Ohio St.3d 385, 390 (2004).

       {¶15} Appellant was charged with petty offenses. A “petty offense” is an offense

for which the maximum penalty is up to six months confinement. See Crim.R. 2(C) and

(D). The highest level offense with which appellant was charged was a misdemeanor of

the first degree. Trial courts are not permitted to impose a sentence for more than six

months on a first-degree misdemeanor. See R.C. 2929.24(A)(1) (exceptions

inapplicable). In a petty offense case, waiver of counsel must be made in open court

and recorded by means of shorthand, stenotype, or other adequate mechanical device;

but unlike a waiver in a “serious” offense case, it need not be in writing. Crim.R. 22;

Crim.R. 44.

       {¶16} Meyers stated many times on the record that he wished to proceed pro se.

On May 3, 2013, the day of trial, Meyers signed a form entitled, “Acknowledgment of

Rights and Waiver of Counsel,” which is typically used for those pleading guilty or no

contest, and was annotated to indicate that Meyers was pleading not guilty. Crim.R. 22

was more than satisfied, in that a writing is not typically required in these circumstances.



                                             6
It is clear from Meyers’ various in-court statements and from the form he signed on the

trial date that he wished to proceed pro se.          See Crim.R. 44(C).       Thus, we must

determine whether Meyers was sufficiently informed to have made such waiver

voluntarily, knowingly, and intelligently.

       {¶17} In State v. Foy, 5th Dist. Stark No. 2006-CA-00269, 2007-Ohio-6578, the

Fifth Appellate District concurred with the Fourth Appellate District’s assessment of the

difficult situation a trial court faces when a litigant insists on self-representation:

              We note, ‘a criminal defendant’s decision to represent himself is
              generally problematic for trial courts. On the one hand, self-
              representation is an important right and a refusal to grant a
              defendant the right to appear pro se at trial may warrant a reversal.
              On the other hand, when a pro se defendant does not receive the
              desired outcome at trial, a court’s decision to allow him to proceed
              pro se presents an easy target to raise on appeal. This is not a
              case in which a defendant has been denied counsel, nor is it a
              situation in which we must discern whether a defendant impliedly
              waived counsel. To the contrary, in the instant case appellant
              insisted that he wanted to exercise his right of self-representation
              and was emphatic that he be allowed to proceed in that manner.
              The trial court implored him not to proceed on his own and, even
              after it permitted him to do so, directed that his public defender
              remain available to assist him.

Id. at ¶21, quoting State v. Doyle, 4th Dist. Pickaway No. 04 CA 23, 2005-Ohio-4072,

¶19. Doyle indicates Ohio courts have rejected a “checklist approach” to determine

whether a defendant made a voluntary, knowing, and intelligent waiver of his right to

counsel. Id. at ¶11. Instead, Ohio appellate courts consider whether the totality of the

circumstances demonstrates that the defendant understood the nature of the charges,

possible defenses, and seriousness of the waiver. Id. The circumstances we must

consider include whether the record shows that the defendant was aware of the nature

of the charges, defenses available thereto, and possible penalties; the defendant’s




                                               7
familiarity with the criminal justice system; and whether the defendant was advised of

his right to representation and the dangers of self-representation. Id. at ¶11-17.

       {¶18} Here, as in Foy, supra, we are neither faced with a situation in which a

defendant has been denied counsel nor with a situation in which we must determine

whether a defendant impliedly waived counsel. The trial court informed Meyers that he

had a right to counsel, of which it would “be wise” to take advantage, and offered

Meyers additional time to secure counsel. Even though the trial court permitted Meyers

to proceed pro se, counsel was always available to him in court. Nonetheless, Meyers

insisted on presenting and arguing his own case. Meyers filed and argued numerous

motions that demonstrate he knew the nature of the charges against him and what the

state had to prove in order to convict him.

       {¶19} A review of the record shows that Meyers waived his right to counsel “with

eyes open.” Faretta, supra. At the pretrial hearing, the court discussed with Meyers

what the state would be required to prove with regard to the charge of using weapons

while intoxicated and the burden of proof. Meyers’ pleadings reflect an understanding

of court procedure. Furthermore, at trial, Meyers argued the state could not prove that

he was intoxicated or that he was in possession of a handgun. As intoxication and

possession of a handgun were the central elements of the state’s case, it is clear that

Meyers understood the nature of the charges and available defenses. Meyers signed a

form acknowledging that he faced jail time if convicted, which shows that he was aware

of the possible punishments. The trial court advised Meyers that it would be in his best

interest to take advantage of counsel and explained his right to have counsel appointed

at no cost to him. The trial court ensured that counsel was available to Meyers at all




                                              8
times, but he did not avail himself of counsel’s aid. Thus, taking into account the totality

of the circumstances, it is clear that Meyers was not deprived of counsel and that he

voluntarily, knowingly, and intelligently waived his right to counsel. Doyle, supra, at ¶11.

       {¶20} Meyers’ first assignment of error is without merit.

       {¶21} Meyers’ second assignment of error states:

       {¶22} “The trial court erred when it denied the defendant-appellant’s motion to

suppress statements made to the police in violation of his constitutional rights to the

assistance of counsel and against self-incrimination.”

       {¶23} In his second assignment of error, Meyers argues that “the trial court erred

by failing to suppress the statements he made during the time when he was removed

from his truck and prior to being placed within the police cruiser.” We find no error in

the trial court’s decision regarding suppression of statements made by Meyers.

       {¶24} Appellate review of a trial court’s ruling on a motion to suppress evidence

presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 154,

2003-Ohio-5372. We accept the trial court’s findings of fact when they are supported by

competent, credible evidence.      State v. Guysinger, 86 Ohio App.3d 592, 594 (4th

Dist.1993). If the trial court’s findings of fact are supported by the record, we review the

trial court’s application of the law to those facts de novo. State v. Djisheff, 11th Dist.

Trumbull No. 2005-T-0001, 2006-Ohio-6201, ¶19.

       {¶25} “A police officer may lawfully stop a vehicle, motorized or otherwise, if he

has a reasonable, articulable suspicion that the operator has engaged in criminal

activity, including a minor traffic violation.” State v. Roberts, 2d Dist. Montgomery No.

23219, 2010-Ohio-300, ¶14. The United States Supreme Court has held that routine




                                             9
traffic stops are more “analogous to a so-called ‘Terry stop,’ than to a formal arrest” and

that police conducting a traffic stop, similar to police conducting a Terry stop, “may ask

the detainee a moderate number of questions to determine his identity and to try to

obtain information confirming or dispelling the officer’s suspicions.”        Berkemer v.

McCarty, 468 U.S. 420, 439-440 (1984). The Court further stated:

              The comparatively nonthreatening character of [Terry stops]
              explains the absence of any suggestion in our opinions that Terry
              stops are subject to the dictates of Miranda. The similarly
              noncoercive aspect of ordinary traffic stops prompts us to hold that
              persons temporarily detained pursuant to such stops are not ‘in
              custody’ for the purposes of Miranda.

Id. at 440.

       {¶26} Ohio courts have similarly held that “routine roadside questioning of a

driver during an ordinary traffic stop does not constitute a custodial interrogation

requiring Miranda warnings.” E.g., State v. Brown, 2d Dist. Montgomery No. 25204,

2012-Ohio-5532, ¶10. In the interest of officer safety, such questioning may include

whether the person detained is in possession of a firearm. Id. at ¶11, citing State v.

Lenoir, 2d Dist. Montgomery No. 12646, 1997 Ohio App. LEXIS 2494 (June 6, 1997).

       {¶27} It is important to note that following the suppression hearing, the trial court

granted Meyers’ motion to suppress in part and denied it in part.           The trial court

suppressed any statements made from the time Meyers was placed in Officer Smith’s

patrol car until Meyers was Mirandized. Meyers argues that “the trial court erred by

failing to suppress the statements he made during the time when he was removed from

his truck and prior to being placed within the police cruiser.” Meyers does not indicate

any particular statements that he believes should have been suppressed. During the

relevant time, however, Meyers made statements denying knowledge of any firearm in



                                            10
his vehicle, denying that concealed carry licensees are required to announce their

status and the presence of weapons in their vehicles during traffic stops, denying that

he was intoxicated, and questioning whether Officer Smith had any basis for the stop

that could be proved in court.

       {¶28} The trial court did not err by holding that the statements made before

Meyers was placed in Officer Smith’s patrol car were admissible. These statements

were made during the temporary detention incident to the traffic stop, which is not

subject to the dictates of Miranda. See Berkemer, supra. Officer Smith was permitted

to ask “a moderate number” of questions to establish Meyers’ identity and to confirm or

dispel suspicion of criminal activity before determining whether to arrest Meyers. Officer

Smith’s questions did not go beyond the permissible scope of the traffic stop.

       {¶29} Officer Smith ordered Meyers out of his vehicle and handcuffed him during

the questioning outside the vehicle. At that point, Meyers denied having a firearm in the

vehicle. The officer knew this to be false, as he had observed a firearm in plain view.

              When an officer is justified in believing that the individual whose
              suspicious behavior he is investigating at close range is armed and
              presently dangerous to the officer or to others, it would appear to
              be clearly unreasonable to deny the officer the power to take
              necessary measures to determine whether the person is in fact
              carrying a weapon and to neutralize the threat of physical harm.

Terry v. Ohio, 392 U.S. 1, 24 (1968). Officer Smith took reasonable steps to ensure his

safety while investigating the facts and circumstances of the situation.             Most

significantly, Meyers fails to point to any statements that could be considered

“incriminating” that the trial court did not suppress.

       {¶30} Meyers’ second assignment of error is without merit.

       {¶31} Meyers’ third assignment of error states:



                                              11
        {¶32} “The defendant-appellant was deprived of his constitutional rights to fair

trial and due process when the trial court failed to give an accurate jury instruction

regarding the improper handling of firearms in a motor vehicle.”

        {¶33} In this assignment of error, Meyers contends that the trial court’s jury

instruction on the charge of improperly handling a firearm in a motor vehicle amounts to

plain error. First, Meyers contends that the trial court instructed the jury to apply a

statute inapplicable to Meyers, who was licensed to carry concealed firearms, and that

the jury did in fact rely upon that statute in reaching its verdict.      Second, Meyers

contends that the trial court instructed the jury on the basis of an obsolete version of the

applicable statute, which is materially different from the version in force at the relevant

time.   Third, Meyers contends that the trial court failed to instruct the jury on the

statutory privileges granted to persons licensed to carry concealed firearms.

        {¶34} At trial, Meyers did not object to the jury instructions and has therefore

waived all but plain error on review. State v. Skatzes, 104 Ohio St.3d 195, 205, 2004-

Ohio-6391.     In criminal appeals where no objection was made to erroneous jury

instructions, the Ohio Supreme Court permits the use of plain error doctrine to reverse a

conviction only when, but for the error, the outcome of the trial clearly would have been

otherwise. Id.

        {¶35} The decision to use a particular jury instruction in a criminal case lies

within the sound discretion of the trial court and cannot form the basis for reversal

unless an abuse of discretion took place. State v. Nichols, 11th Dist. Lake No. 2005-L-

017, 2006-Ohio-2934, ¶28. As a general proposition, a jury instruction is proper if it




                                            12
gives a plain and unambiguous statement of the law pertinent to the case in light of the

pleadings and the evidence. Id. at ¶30.

       {¶36} A review of the record shows that Meyers was charged with, tried for, and

convicted of violating R.C. 2923.16(C). The version of that statute applicable to Meyers

states, in relevant part:

              (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:
              (1) in a closed package, box, or case; (2) in a compartment that can
              be reached only by leaving the vehicle; (3) in plain sight and
              secured in a rack or holder made for the purpose[.]

       {¶37} Evidence was presented that Meyers had a handgun and ammunition

unsecured in his vehicle and within reach of the driver. Relevant to Meyers’ argument

and to the charge in this case is the provision contained in R.C. 2923.16(F)(5). The

version of that section in effect at the time of the offense provided as follows, with

emphasis added:

              Divisions (B) and (C) of this section do not apply to a person who
              transports or possesses a handgun in a motor vehicle if, at the time
              of that transportation or possession, both of the following apply:

              (a) The person transporting or possessing the handgun is carrying
              a valid license or temporary emergency license to carry a
              concealed handgun issued to the person under section 2923.125 or
              2923.1213 of the Revised Code or a license to carry a concealed
              handgun that was issued by another state with which the attorney
              general has entered into a reciprocity agreement under section
              109.69 of the Revised Code.

              (b) The person transporting or possessing the handgun is not
              knowingly in a place described in division (B) of section 2923.126 of
              the Revised Code.




                                            13
      {¶38} Therefore, Meyers could not be charged with a violation of R.C.

2923.16(C) if the provisions of R.C. 2923.16(F)(5)(a) and (b) apply. The first question in

that regard is whether Meyers was carrying a valid license at the time of the stop. The

language of R.C. 2923.16(F)(5)(a) is clear that the offense contained in R.C. 2923.16(C)

“does not apply” to an individual carrying a valid license. However, the record is silent

as to whether a valid license was ever requested or produced. Therefore, we must

determine whether it was the state’s burden to offer some evidence that Meyers was not

carrying a valid license or whether Meyers carried the burden as an affirmative defense.

      {¶39} Affirmative defenses in criminal cases are defined in R.C. 2901.05(D)(1)

as either “(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.” (Emphasis added.)

      {¶40} The Ohio legislature has specifically enumerated affirmative defenses with

regard to a violation of R.C. 2923.16:

             (G)(1) The affirmative defenses authorized in divisions (D)(1) and
             (2) of section 2923.12 of the Revised Code are affirmative defenses
             to a charge under division (B) or (C) of this section that involves a
             firearm other than a handgun.

             (2) It is an affirmative defense to a charge under division (B) or (C)
             of this section of improperly handling firearms in a motor vehicle
             that the actor transported or had the firearm in the motor vehicle for
             any lawful purpose and while the motor vehicle was on the actor's
             own property, provided that this affirmative defense is not available
             unless the person, immediately prior to arriving at the actor’s own
             property, did not transport or possess the firearm in a motor vehicle
             in a manner prohibited by division (B) or (C) of this section while the
             motor vehicle was being operated on a street, highway, or other
             public or private property used by the public for vehicular traffic.




                                           14
       {¶41} In a similar case, the First District Court of Appeals held that an exemption

did not have to be established by the state in a prosecution for carrying a concealed

weapon. State v. Washington, 1st Dist. Hamilton No. C-810917, 1982 Ohio App. LEXIS

12701. The First District held: “We have previously held that ‘[a] person accused of

violating a penal statute which contains an exemption has the burden of proving, by a

preponderance of the evidence, that he is within such exemption.’” Id. at *3.

       {¶42} In addition, the Ohio Supreme Court has considered a similar provision

concerning the burden to establish an exemption from prosecution due to a specific

statutory provision. In State v. Frost, 57 Ohio St.2d 121, 128, the Court stated:

              The [defendant], in this cause, sought to avoid criminal liability for
              violating the Ohio Securities Act by claiming the protection of the
              exemption provided in R.C. 1707.03(B). It is not unconstitutional to
              require a defendant to carry the burden of proof in such a case,
              because it does not require the defendant to negate any facts of the
              crime which the state must prove in order to convict.

       {¶43} Therefore, we hold it was Meyers’ burden to establish that he had his

license with him at the time he was stopped, which would have rendered R.C.

2923.16(C) inapplicable to him. Meyers’ contention that he could not be convicted of a

violation of R.C. 2923.16(C) is without merit.

       {¶44} This does not, however, end the inquiry regarding the conviction for this

charge. Adding to the confusion in this case is the fact that the trial court also instructed

the jury on a prior version of R.C. 2923.16(C), which was inapplicable to Meyers, and on

a violation of R.C. 2923.16(E)(1), which sets forth offenses by those who have been

issued a valid license.      However, Meyers was not charged with violating R.C.

2923.16(E)(1). It is unknown whether the jury returned its verdict as a result of this

instruction, or on the erroneous instruction regarding R.C. 2923.16(C). Either way, it



                                             15
was plain error to give an instruction on a prior version of the applicable statute and an

offense for which the defendant was not charged.

       {¶45} Meyers’ third assignment of error has merit to the extent indicated. There

was plain error in the instructions to the jury, entitling Meyers to a new trial on that

charge. On remand, in the event of a new trial, the jury should be instructed on the

relevant version of R.C. 2923.16(C).

       {¶46} Meyers’ fourth assignment of error states:

       {¶47} “The trial court erred to the prejudice of the defendant-appellant when it

returned a verdict of guilty against the manifest weight of the evidence.”

       {¶48} Meyers contends that his convictions for improperly handling firearms in a

motor vehicle and using a weapon while intoxicated are against the manifest weight of

the evidence. As Meyers’ conviction for improperly handling firearms in a motor vehicle

has already been reversed, this assignment of error is moot with regard to that charge.

Thus, we consider only the manifest weight challenge to Meyers’ conviction for using a

weapon while intoxicated.     For the reasons that follow, we find this conviction not

against the manifest weight of the evidence.

       {¶49} When a criminal defendant contends that a verdict is against the manifest

weight of the evidence, an appellate court acts as a “thirteenth juror,” reweighing the

evidence. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997); State v. Lee, 6th Dist.

No. L-06-1384, 2008-Ohio-253, ¶12. “The court, reviewing the entire record, weighs the

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

determines 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




                                            16
and a new trial ordered.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d

172, 175 (1983). Reversal on the grounds that a conviction was against the manifest

weight of the evidence is granted “only in the exceptional case in which the evidence

weighs heavily against the conviction.” Id.

      {¶50} In this case, the evidence does not weigh heavily against a conviction for

using a weapon while intoxicated. Meyers was charged under R.C. 2923.15(A), which

states: “(A) No person, while under the influence of alcohol or any drug of abuse, shall

carry or use any firearm or dangerous ordnance.” The trial court properly instructed the

jury that in order to find that Meyers was “under the influence” of alcohol or drugs at the

time of the offense, it must be established that he used alcohol or drugs in such quantity

that it “adversely affected his actions or mental process to deprive him of that clearness

of intellect and control” which he otherwise would have had.

      {¶51} The testimony of Officer Smith and Sergeant Byers was that Meyers

smelled of alcohol, had blood shot and glassy eyes, repeated himself, had difficulty

following instructions, and difficulty understanding and remembering statements,

questions, and answers.     Meyers refused a request to perform field sobriety tests.

Sergeant Byers testified, based on over 200 OVI arrests and his extensive experience

with people who have been drinking and show signs of intoxication, it was his opinion

that Meyers was over the legal limit to be driving. He added that Meyers was “certainly

too intoxicated to be handling a firearm.” Meyers was the driver and sole occupant of

the truck in which a handgun and ammunition were recovered from the vehicle floor

near the driver’s seat. Contrary to Meyers’ assertions at trial and on appeal, the results

of a field sobriety test are not required to establish that a defendant was intoxicated.




                                              17
State v. Scandreth, 11th Dist. Trumbull No. 2009-T-0039, 2009-Ohio-5768, ¶71

(citations omitted).

       {¶52} Meyers’ fourth assignment of error is without merit.

       {¶53} Meyers’ fifth assignment of error states:

       {¶54} “The trial court sentenced the defendant-appellant contrary to law.”

       {¶55} Under this assignment of error, Meyers argues “[t]he trial court erred when

it sentenced the defendant-appellant as having committed a first-degree misdemeanor

improper handling of firearms in a motor vehicle where, pursuant to R.C. 2923.16(I), the

defendant-appellant was convicted of a minor misdemeanor.”

       {¶56} R.C. 2923.16(I) provides, in pertinent part:

              If at the time of the stop of the offender for a traffic stop, * * * any
              law enforcement officer involved with the stop * * * had actual
              knowledge of the offender’s status as a licensee, a violation of
              division (E)(1) or (2) of this section is a minor misdemeanor, and
              the offender’s concealed handgun license shall not be suspended
              pursuant to division (A)(2) of section 2923.128 of the Revised
              Code.

       {¶57} It was never established in the record whether Meyers had a valid license

at the time this incident occurred. There was some testimony that when the officer ran

Meyers’ vehicle registration, he received information that the owner of the vehicle had a

carry and conceal license issued to him. However, there is no indication that the license

was still in effect or in Meyers’ possession at the time of the stop.

       {¶58} The fact that the officer might have known that Meyers had been issued a

concealed carry permit is irrelevant if Meyers was not in compliance with the statute,

e.g., that he carry the license with him. See R.C. 2923.126(A). As indicated above,




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Meyers did not meet his burden of establishing compliance; nothing in the record

suggests he had his license with him.

      {¶59} Meyers’ fifth assignment of error is without merit.

      {¶60} For the foregoing reasons, Meyers’ conviction for improperly handling a

firearm in a motor vehicle is reversed and remanded for a new trial. Meyers’ conviction

for using weapons while intoxicated is affirmed.



CYNTHIA WESTCOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur.




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