[Cite as State v. Beyer, 2012-Ohio-4578.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :       Hon. William B. Hoffman, J.
                                             :       Hon. Sheila G. Farmer, J.
-vs-                                         :
                                             :
JOSEPH C. BEYER                              :       Case No. 12-CA-27
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Municipal Court,
                                                     Case No. 11CRB1418



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    September 24, 2012




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

J. MICHAEL KING                                      CHRISTOPHER M. SHOOK
35 South Park                                        33 West Main Street
Suite 35                                             P.O. Box 4190
Newark, OH 43055                                     Newark, OH 43058-4190
LIcking County, Case No. 12-CA-27                                                      2

Farmer, J.

       {¶1}   On July 11, 2011, appellant, Joseph Beyer, was charged with one count of

using a weapon while intoxicated in violation of R.C. 2923.15, one count of domestic

violence in violation of R.C. 2919.25, and one count of menacing in violation of R.C.

2903.22. The weapon charge arose from an incident wherein appellant opened the

front door of his home and pointed a rifle at the persons banging on the door, two police

officers.

       {¶2}   The latter two charges were subsequently dismissed. On September 23,

2011, appellant filed a motion to dismiss the remaining charge, claiming the charge as

applied in his case violated his rights under the Second Amendment. A hearing was

held on October 20, 2011. The trial court denied the motion.

       {¶3}   A jury trial commenced on February 23, 2012. The jury found appellant

guilty as charged.    By judgment entry filed same date, the trial court sentenced

appellant to one hundred days in jail, one hundred twenty days suspended.

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

consideration. Assignments of error are as follows:

                                            I

       {¶5}   "THE APPLICATION OF THE WEAPONS UNDER INTOXICATION

STATUTE TO THESE FACTS VIOLATES THE SECOND AMENDMENT TO THE

UNITED STATES CONSTITUTION."

                                           II

       {¶6}   "THE TRIAL COURT PERMITTED UNDULY PREJUDICIAL TESTIMONY

IN CONTRAVENTION OF EVIDENCE RULE 403."
LIcking County, Case No. 12-CA-27                                                        3


                                            III

       {¶7}   "THE TRIAL COURT REFUSED TO INSTRUCT THE JURY AS

REQUESTED BY THE DEFENDANT."

                                            IV

       {¶8}   "THE VERDICT IN THIS CASE IS AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE."

                                             I

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

the charge of using a weapon while intoxicated as it applies in his case violates his

rights under the Second Amendment. We disagree.

       {¶10} Appellant was charged with using a weapon while intoxicated in violation

of R.C. 2923.15 which states, "[n]o person, while under the influence of alcohol or any

drug of abuse, shall carry or use any firearm or dangerous ordnance."

       {¶11} The Second Amendment to the United States Constitution states, "[a] well

regulated Militia, being necessary to the security of a free State, the right of the people

to keep and bear Arms, shall not be infringed."

       {¶12} Appellant argues the case of District of Columbia v. Heller (2008), 554

U.S. 570, speaks specifically to his challenge to the charge. In Heller, the respondent

was a special police officer authorized to carry a handgun while on duty. Heller, at 575.

Respondent applied for a registration certificate for a handgun to keep at his home, but

was denied. Id. Respondent filed a lawsuit on Second Amendment grounds, seeking

"to enjoin the city from enforcing the bar on the registration of handguns, the licensing

requirement insofar as it prohibits the carrying of a firearm in the home without a
LIcking County, Case No. 12-CA-27                                                      4


license, and the trigger-lock requirement insofar as it prohibits the use of 'functional

firearms within the home.' " Id. at 576. The Heller court concluded the following:

       {¶13} "In sum, we hold that the District's ban on handgun possession in the

home violates the Second Amendment, as does its prohibition against rendering any

lawful firearm in the home operable for the purpose of immediate self-defense.

Assuming that Heller is not disqualified from the exercise of Second Amendment rights,

the District must permit him to register his handgun and must issue him a license to

carry it in the home." Id. at 635.

       {¶14} The first question in analyzing Second Amendment rights vis-à-vis an as-

applied challenge is "whether the challenged law imposes a burden on conduct falling

within the scope of the Second Amendment's guarantee."          United States v. Staten

(2011), 666 F.3d 154. Applying the dicta of Heller, we conclude this inquiry should be

answered in the negative:

       {¶15} "2. Like most rights, the Second Amendment right is not unlimited. It is not

a right to keep and carry any weapon whatsoever in any manner whatsoever and for

whatever purpose: For example, concealed weapons prohibitions have been upheld

under the Amendment or state analogues. The Court's opinion should not be taken to

cast doubt on longstanding prohibitions on the possession of firearms by felons and the

mentally ill, or laws forbidding the carrying of firearms in sensitive places such as

schools and government buildings, or laws imposing conditions and qualifications on the

commercial sale of arms. Miller's holding that the sorts of weapons protected are those

'in common use at the time' finds support in the historical tradition of prohibiting the

carrying of dangerous and unusual weapons." Heller, at 571; 626-627.
LIcking County, Case No. 12-CA-27                                                       5

      {¶16} The Heller court further stated at 595:

      {¶17} "There seems to us no doubt, on the basis of both text and history, that

the Second Amendment conferred an individual right to keep and bear arms. Of course

the right was not unlimited, just as the First Amendment's right of free speech was not,

see, e.g., United States v. Williams, 553 U.S. 285, 128 S.Ct. 1830, 170 L.Ed.2d 650

(2008). Thus, we do not read the Second Amendment to protect the right of citizens to

carry arms for any sort of confrontation, just as we do not read the First Amendment to

protect the right of citizens to speak for any purpose. Before turning to limitations upon

the individual right, however, we must determine whether the prefatory clause of the

Second Amendment comports with our interpretation of the operative clause."

      {¶18} The prohibition of using a weapon while intoxicated, even within the

confines of one's private residence, conforms to the above cited dicta. Without a finding

of a "burden," we may end our inquiry.

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

motion to dismiss.

      {¶20} Assignment of Error I is denied.

                                            II

      {¶21} Appellant claims the trial court erred in permitting testimony of him

pointing his rifle at the police officers as the testimony was unduly prejudicial under

Evid.R. 403. We disagree.

      {¶22} The admission or exclusion of evidence rests in the sound discretion of

the trial court. 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
LIcking County, Case No. 12-CA-27                                                       6

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

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

       {¶23} "Relevant evidence" "means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence." Evid.R. 401.

       {¶24} Evid.R. 403 states:

       {¶25} "(A) Exclusion mandatory

       {¶26} "Although relevant, evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or

of misleading the jury.

       {¶27} "(B) Exclusion discretionary

       {¶28} "Although relevant, evidence may be excluded if its probative value is

substantially outweighed by considerations of undue delay, or needless presentation of

cumulative evidence."

       {¶29} The direct evidence of what occurred at appellant's residence and why he

was arrested for using a weapon while intoxicated was relevant and meets the standard

imposed by Evid.R. 401.

       {¶30} Appellant argues the testimony that he pointed his rifle at police officers

was unfair and "was likely to arouse the jury's passions to a point where they would act

irrationally in reaching a verdict." Appellant's Brief at 15. However, we find the act of

answering a door with a rifle when police are there lawfully bears directly upon the issue

of appellant's intoxication.
LIcking County, Case No. 12-CA-27                                                      7


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

permitting the complained of testimony.

      {¶32} Assignment of Error II is denied.

                                           III

      {¶33} Appellant claims the trial court erred in refusing to give his requested jury

instructions. We disagree.

      {¶34} The giving of jury instructions is within the sound discretion of the trial

court and will not be disturbed on appeal absent an abuse of discretion.        State v.

Martens (1993), 90 Ohio App.3d 338; Blakemore, supra. Jury instructions must be

reviewed as a whole. State v. Coleman (1988), 37 Ohio St.3d 286.

      {¶35} Appellant argues the trial court erred in not instructing the jury as

requested:

      {¶36} "The Defendant is not charged with any crime for allegedly pointing a

weapon at the police officers. A person, if not intoxicated, may legally possess a gun in

these circumstances.

      {¶37} "In this case, the State of Ohio did not conduct any tests to determine

whether the defendant was intoxicated. Even if the government did not act in bad faith,

you may draw a negative inference from the failure to preserve this evidence or conduct

these tests. This means that you may infer from the government's failure to conduct

these tests that the results of the tests would have produced evidence adverse to the

government's case.     (See Arizona v. Youngblood (1988), 488 U.S. 51, 57-58.)"

Defendant's First Set of Requested Jury Instructions filed September 6, 2011.
LIcking County, Case No. 12-CA-27                                                      8


       {¶38} Appellant argues the first requested instruction would have been

cautionary and would have cleared up any misapplication of the evidence as argued in

Assignment of Error II. It was very clear that the charge was using a weapon while

intoxicated and not menacing or threatening the police. T. at 211-212.

       {¶39} As to the second requested instruction, we find it was not a discussion of

the law, but an argument relative to the sufficiency of the evidence.

       {¶40} Upon review, we find the trial court did not err in refusing to instruct the

jury as requested by appellant.

       {¶41} Assignment of Error III is denied.

                                            IV

       {¶42} Appellant claims his conviction was against the manifest weight of the

evidence. We disagree.

       {¶43} 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. We note the weight to be given to the

evidence and the credibility of the witnesses are issues for the trier of fact. State v.

Jamison (1990), 49 Ohio St.3d 182, certiorari denied (1990), 498 U.S. 881.
LIcking County, Case No. 12-CA-27                                                        9


       {¶44} Appellant was convicted of using a weapon while intoxicated in violation of

R.C. 2923.15 cited supra.

       {¶45} On June 11, 2011, Pataskala Police Officers Alex Colles and Joshua

McGeorge went to appellant's residence to arrest him on outstanding charges. T. at 67-

68, 150.    Upon arriving, the officers knocked on the door repeatedly, but no one

answered the door. T. at 70. The officers then pounded and banged on the door and

announced their presence. T. at 70-71, 151. Officer McGeorge saw someone look out

a window and then the door opened. T. at 151. Appellant was standing there pointing a

rifle at the officers. T. at 72. Officer Colles grabbed the rifle and took appellant to the

ground.    T. at 72, 152.    Officer Colles noticed an extreme odor of alcohol about

appellant's person and his breath, and noticed slurred speech.         T. at 75.    Officer

McGeorge also detected an odor of alcohol. T. at 160. Officer Colles stated "the odor

of alcohol was also building up in the cruiser." T. at 77.

       {¶46} Appellant's father, Joseph Beyer, and his girlfriend, Christine Nelson,

testified appellant did not appear intoxicated on the evening in question and did not

have slurred speech. T. at 169-170, 185-186. However, they did not see appellant

between 10:00 p.m. and 2:00 a.m., the time of the police encounter. T. at 170, 176,

191.

       {¶47} Upon review, we find no indication that the jury lost its way in determining

the facts and assigning credibility to the witnesses. We find sufficient evidence of using

a weapon while intoxicated, and no manifest miscarriage of justice.
LIcking County, Case No. 12-CA-27                                             10


      {¶48} The judgment of the Municipal Court of Licking County, Ohio is hereby

affirmed.

By Farmer, J.

Gwin, P.J. and

Hoffman, J. concur.




                                        s / Sheila G. Farmer_______________



                                        _s / W. Scott Gwin   _____________



                                        s / William B. Hoffman _______________

                                                      JUDGES

SGF/sg 9/11
[Cite as State v. Beyer, 2012-Ohio-4578.]


                    IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :        JUDGMENT ENTRY
                                               :
JOSEPH C. BEYER                                :
                                               :
        Defendant-Appellant                    :        CASE NO. 12-CA-27




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

judgment of the Municipal Court of Licking County, Ohio is affirmed. Costs to appellant.




                                               s / Sheila G. Farmer_______________



                                               _s / W. Scott Gwin   _____________



                                               s / William B. Hoffman _______________

                                                             JUDGES
