State v. Alexander , 2013 Ohio 1913 ( 2013 )

[Cite as State v. Alexander, 2013-Ohio-1913.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, : Case No. 12CA945
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
BARRY ALEXANDER, :
: RELEASED 05/03/13
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Timothy Young, Ohio State Public Defender, and Valerie Kunze, Ohio State Assistant
Public Defender, Columbus, Ohio, for appellant.
David Kelley, Adams County Prosecutor, West Union, Ohio, for appellee.
______________________________________________________________________
Harsha, J.
{¶1} Barry Alexander appeals his conviction for having weapons while under
disability in violation of R.C. 2923.13(A)(4), which he argues is unconstitutional.
Alexander claims that in light of recent United States Supreme Court decisions, the
statute violates the fundamental right to bear arms under the federal and state
constitutions. Alexander failed to raise these issues with the trial court and thus, if we
were to address them for the first time on appeal, it would be under plain error standard.
However, a Second Amendment challenge requires a heightened level of scrutiny that
involves burden shifting to the state including establishing a substantial “fit” between an
important governmental interest and the enforcement mechanism adopted by the
legislature to serve that end. Because it would be unfair to conduct an analysis that
requires the state to establish the constitutionality of the statute when it had no
opportunity to do so at the trial level, we decline to conduct a plain error review.
Adams App. No. 12CA945 2
{¶2} Next Alexander contends that R.C. 2923.13(A)(4) is unconstitutionally
vague and therefore violates his due process rights under the federal and state
constitutions. However, Alexander also failed to raise this issue with the trial court.
Nevertheless, because his void-for-vagueness argument does not require burden
shifting and a complicated fact-specific analysis like his first assignment of error, we
exercise our discretion and consider it. R.C. 3719.011 defines “drug dependent person”
and “person in danger of becoming a drug dependent person” in an intelligible manner.
Because a person of ordinary intelligence can understand whether he or she is under a
disability and prohibited from carrying a firearm under the law, the statute is not void for
vagueness.
{¶3} Finally, Alexander claims the trial court misstated the law in its instructions
to the jury, resulting in a denial of his right to a fair trial in violation of the Fifth, Sixth and
Fourteenth Amendments and Article 1, Sections 10 and 16 of the Ohio Constitution.
However, his trial counsel did not object to the court’s instructions or the court’s
responses to the jury’s questions concerning the statute. Moreover, the record shows
that the court explained each essential element of offense in its responses to the jury,
so any potential error was cured by the jury’s consideration of the proper elements.
Therefore, Alexander cannot show error, plain or otherwise, and we reject his argument.
I. FACTS
{¶4} This case involves an early morning traffic stop and the resulting discovery
of a loaded rifle in Barry Alexander’s automobile. Trooper Grooms noticed that the truck
in front of him did not have a working license plate light, so he initiated a traffic stop.
When the trooper approached the truck he immediately saw a rifle on the passenger
Adams App. No. 12CA945 3
seat. He asked the driver, Alexander, to step out of the truck while he searched the
vehicle. After finding drug paraphernalia and methamphetamine inside his truck,
Trooper Grooms arrested Alexander. Subsequently, the state charged Alexander with
having a weapon while under disability, improperly handling firearms in a motor vehicle,
and aggravated possession of drugs.
{¶5} At trial Trooper Grooms testified that in addition to the methamphetamine,
he found three spoons, a hypodermic syringe, a Q-tip and a soda can in Alexander’s
truck. He testified that based on his experience, these items are consistently used
together to inject drugs. He also testified that after arriving at the jail, Alexander told
him that he had tried to shoot up earlier, but was unsuccessful because he had “bad
veins.” Furthermore, he told Trooper Grooms that had a “drug problem.” After the state
rested, Alexander moved for acquittal under Crim.R. 29 on the grounds that the state
had not proven he was an alcoholic, drug dependent, or in danger of becoming drug
dependent. The state responded that its theory was Alexander was in danger of
becoming drug dependent based on Trooper Groom’s testimony that he admitted
having a drug problem and attempting to inject drugs earlier that day. The court denied
Alexander’s motion finding that the frequency of his drug use was an issue for the trier
of fact.
{¶6} The jury convicted Alexander of all counts and the court sentenced him to
a total prison term of 30 months. Alexander now appeals his conviction for having
weapons while under disability.
II. ASSIGNMENTS OF ERROR
{¶7} Alexander raises three assignments of error for our review:
Adams App. No. 12CA945 4
1. BARRY ALEXANDER’S INDICTMENT AND CONVICTION UNDER R.C.
2923.13(A)(4) VIOLATE THE INDIVIDUAL AND FUNDAMENTAL RIGHT TO
BEAR ARMS PROTECTED BY THE SECOND AND FOURTEENTH
AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I,
SECTION 4 OF THE OHIO CONSTITUTION.
2. BARRY ALEXANDER’S INDICTMENT AND CONVICTION UNDER R.C.
2923.13(A)(4) VIOLATE HIS RIGHT TO DUE PROCESS AS GUARANTEED BY
THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
3. THE TRIAL COURT MISSTATED THE LAW IN ITS INSTRUCTIONS TO THE
JURY BY INCLUDING THE LANGUAGE “NOT HAVING BEEN RELIEVED OF
DISABILITY AS PROVIDED IN SECTION 2923.14 OF THE REVISED CODE”
WHEN IT DOES NOT APPLY TO THE OFFENSE OF HAVING WEAPONS
WHILE UNDER DISABILITY UNDER REVISED CODE SECTION 2923.13(A)(4),
AND THEREBY DEPRIVED MR. STEPHENSON[sic] OF HIS RIGHT TO A FAIR
TRIAL BEFORE A PROPERLY INSTRUCTED JURY, AND OF HIS RIGHT TO
DUE PROCESS OF LAW, AS GUARANTEED BY THE FIFTH, SIXTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION,
AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.
III. LAW AND ANALYSIS
A. Waiver and Plain Error
{¶8} In his first assignment of error, Alexander attacks the constitutionality of
R.C. 2923.13(A)(4) and claims that the statute violates his federal and state
constitutional rights. Initially, he contends that in light of the recent decisions by the
Supreme Court of the United States in District of Columbia v. Heller, 554 U.S. 570, 128
S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, __ U.S. __, 130
S.Ct. 3020, 177 L.Ed.2d 894 (2010), the statute “unconstitutionally limits the
fundamental right to bear arms,” as conferred by the Second Amendment to the United
States Constitution. He also claims that the statute violates his right to bear arms under
Article 1, Section 4 of the Ohio Constitution. However, he failed to raise either of these
issues with the trial court.
Adams App. No. 12CA945 5
{¶9} It is well-established that the “failure to raise at the trial court level the
issue of the constitutionality of a statute or its application, which issue is apparent at the
time of trial, constitutes a waiver of such issue and a deviation from this state’s orderly
procedure, and therefore need not be heard for the first time on appeal.” State v. Awan,
22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus. However, the Supreme Court of
Ohio has also held that “the waiver doctrine announced in Awan is discretionary.” In re
M.D., 38 Ohio St.3d 149, 151, 527 N.E.2d 286 (1988). “Even where waiver is clear, [a
reviewing court may] consider constitutional challenges to the application of statutes in
specific cases of plain error or where the rights and interests involved may warrant it.”
Id. at syllabus.
{¶10} Under Crim.R. 52(B) “[p]lain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court.” “Thus,
there are ‘three limitations on a reviewing court’s decision to correct an error despite the
absence of a timely objection at trial. First, there must be an error, i.e., a deviation from
a legal rule. * * * Second, the error must be plain. To be “plain” within the meaning of
Crim.R. 52(B), an error must be an “obvious” defect in the trial proceedings. * * * Third,
the error must have affected “substantial rights.” Courts have interpreted this aspect of
the rule to mean that the trial court’s error must have affected the outcome of the trial.’”
State v. Lynn, 129 Ohio St.3d 146, 2011-Ohio-2722, 950 N.E.2d 931, ¶ 13, quoting
State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).
{¶11} “Even when all three prongs are satisfied, a court still has discretion
whether or not to correct the error.” Lynn at ¶ 14. The Supreme Court of Ohio has
acknowledged the discretionary aspect of Crim.R. 52(B) by cautioning courts to notice
Adams App. No. 12CA945 6
plain error “with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d
804 (1978), paragraph three of the syllabus.
{¶12} In this case, it is clear from the record that Alexander failed to raise any
constitutional argument regarding R.C. 2923.13(A)(4) at the trial court level. Nor does
Alexander even argue that plain error should apply on appeal. Because such issues
were apparent and available at the time of his trial, we will not address them for the first
time on appeal. See State v. Klintsworth, 4th Dist. No. 10CA40, 2011-Ohio-5553, ¶ 23.
We base our decision to not address Alexander’s claims of the unconstitutionality of
R.C. 2923.13(A)(4) in large part on the analytic structure of the issues he raises.
{¶13} In his first assignment of error he attacks the constitutionality of the statute
under the Second Amendment. In Heller, the Supreme Court of the United States held
that the Second Amendment preserves the individual right to keep and bear arms.
Heller, 554 U.S. at 592, 595, 128 S.Ct. 2783, 171 L.E2d 637 (2008). With this in mind,
the Court found that the District of Columbia law prohibiting the possession of handguns
inside the home violated the Second Amendment. Id. at 573.
{¶14} Then in McDonald the Court held that “the Due Process Clause of the
Fourteenth Amendment incorporates the Second Amendment right recognized in
Heller,” and therefore the right is fully applicable to the States. McDonald, __ U.S. __,
130 S.Ct. at 3050, 177 L.Ed.2d 894 (2010). Accordingly, the Court struck down a law
similar to the District of Columbia’s in Heller, which effectively banned handgun
possession by almost all private citizens in Chicago. Id. at 3026.
Adams App. No. 12CA945 7
{¶15} Normally, all statutes enjoy a strong presumption of constitutionality. State
v. Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, 930 N.E.2d 770, ¶ 20. To overcome
the presumption, the party challenging the law must prove beyond a reasonable doubt
that the statute is unconstitutional. Id. However, this presumption applies when the
state restriction on constitutional rights is subject to the lowest level of judicial scrutiny,
i.e. the rational basis test. When a more rigorous level of inquiry replaces minimum
scrutiny, the presumption of constitutionality disappears and is replaced by shifting the
burden to the state of justifying the intrusion. See Ezell v. City of Chicago, 651 F.3d 684,
706 (7th Cir.2011), citing Heller at 628, fn. 27. Just how heavy a burden the state must
assume in that context is a newly emerging issue and “Ohio courts have not reached
any consensus as to the proper level of scrutiny in the aftermath of Heller.” State v.
Shover, 9th Dist. No. 25944, 2012-Ohio-3788, ¶ 12.
{¶16} In this case, Alexander urges us to consider the constitutionality of R.C.
2923.13(A)(4) under a strict scrutiny standard because the Supreme Court in McDonald
found that the Second Amendment confers a fundamental right to bear arms. Although
the Court in Heller confirmed that laws regulating the right to bear arms are subject to
more than just rational basis scrutiny, it did not state which level of heightened scrutiny
should apply to Second Amendment challenges. Heller, 554 U.S. at 628, fn. 27, 128
S.Ct. 2783, 171 L.E2d 637 (2008). And because under either level of heightened
scrutiny the state bears the burden of proving the statute’s constitutionality, it is not fair
to place this burden at the appellate level on the state without having afforded it the
opportunity to present evidence to the trial court.
Adams App. No. 12CA945 8
{¶17} In addition to the question of what level of scrutiny applies, the issue of the
fit between a legitimate governmental interest and the statutory framework chosen to
address that end is complex and should be developed in the record at the trial level.
For instance, should the state be able to rely on anecdote and mere argument, or must
it supply empirical studies? Is resort to common sense sufficient to satisfy the state's
burden? Because of the complex nature of such an analysis, we deem Alexander’s first
assignment of error forfeited and decline to address these constitutional issues under a
plain error standard.
B. Void-For-Vagueness
{¶18} In his second assignment of error, Alexander argues that R.C.
2923.13(A)(4) is also unconstitutionally vague. Again, Alexander failed to raise this
constitutional argument with the trial court and therefore it is within our discretion not to
address it as plain error on appeal. However, because this constitutional issue does not
involve burden shifting and a complicated analysis, we will consider its merits.
{¶19} “The void-for-vagueness doctrine is a component of the right to due
process and is rooted in concerns that laws provide fair notice and prevent arbitrary
enforcement.” In re Application of Columbus S. Power Co., __Ohio St.3d__, 2012-
Ohio-5690, 983 N.E.2d 276, ¶ 20. However, impossible standards of specificity are not
required. State v. Carrick, 131 Ohio St.3d 340, 2012-Ohio-608, 965 N.E.2d 264, ¶ 14.
As already indicated, statutes generally enjoy a strong presumption of constitutionality,
so to overcome the presumption, the party challenging the law must prove beyond a
reasonable doubt that the statute is unconstitutional. Williams, 126 Ohio St.3d 65, 2010-
Ohio-2453, 930 N.E.2d 770, at ¶ 20
Adams App. No. 12CA945 9
{¶20} Alexander does not specify whether he is claiming that the statute is
unconstitutional on its face or as applied to the facts of his case. He does not contend
that the application of the statute in the particular context of his conduct is
unconstitutional. Rather, he argues generally that a person of ordinary intelligence
could not reasonably understand what acts R.C. 2923.13(A)(4) prohibits. Therefore, we
construe his argument as a facial challenge. See Carrick at ¶ 15-16.
{¶21} A facial challenge requires that “the challenging party * * * show that the
statute is vague ‘not in the sense that it requires a person to conform his conduct to an
imprecise but comprehensible normative standard, but rather in the sense that no
standard of conduct is specified at all.’” State v. Anderson, 57 Ohio St.3d 168, 171, 566
N.E.2d 1224 (1991), quoting Coates v. Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29
L.Ed.2d 214 (1971). “In other words, the challenger must show that upon examining the
statute, an individual of ordinary intelligence would not understand what he is required
to do under the law.” Anderson at 171. Therefore, the defendant “must prove, beyond a
reasonable doubt, that the statute was so unclear that he could not reasonably
understand that it prohibited the acts in which he engaged.” Id.{¶22} Here, R.C. 2923.13(A)(4) provides sufficient notice for a person of
ordinary intelligence to understand what he or she is prohibited from doing under the
law. R.C. 2923.13(A)(4) states: “Unless relieved from disability as provided in section
2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use
any firearm or dangerous ordnance, if * * * [t]he person is drug dependent, in danger of
drug dependence, or a chronic alcoholic.” Furthermore, R.C. 3719.011 provides:
As used in the Revised Code:
Adams App. No. 12CA945 10
(A) “Drug of abuse” means any controlled substance as defined in section
3719.01 of the Revised Code, any harmful intoxicant as defined in section
2925.01 of the Revised Code, and any dangerous drug as defined in
section 4729.01 of the Revised Code.
(B) “Drug dependent person” means any person who, by reason of the use
of any drug of abuse, is physically, psychologically, or physically and
psychologically dependent upon the use of such drug, to the detriment of
the person’s health or welfare.
(C) “Person in danger of becoming a drug dependent person” means any
person who, by reason of the person’s habitual or incontinent use of any
drug of abuse, is in imminent danger of becoming a drug dependent
person.
{¶23} Thus, this is not a case where no standard of conduct is specified.
Contrary to Alexander’s assertion that “there is no definite standard to prove who can
fall under the three categories of persons listed in the statute,” the definitions in R.C.
3719.011 identify an objective standard for a person of ordinary intelligence to
determine whether he falls within the classification of drug dependent person or in
danger of becoming a drug dependent person. Although Alexander points to the jury’s
questions during deliberation as evidence that an ordinary person would struggle with
understanding the statute, this does not prove beyond a reasonable doubt that R.C.
2923.13(A)(4) is unconstitutionally vague. As we discuss below, the court initially
included language that was not an element of the offense in its instructions to the jury.
Although the jury returned with questions regarding this additional language, the jury
deliberated and returned with a guilty verdict after the court clearly explained each
element of the offense. This indicates that they understood the statute and what
conduct it prohibited. Moreover, it was the court, rather than the statute itself, that
caused the jury’s initial confusion.
Adams App. No. 12CA945 11
{¶24} Alexander also argues that “law enforcement personnel are given
excessive discretion in determining when to enforce this provision,” because “[t]he
statute does not provide any explicit standards for those who are charged with enforcing
it * * *.” However, as we have already indicated, the definitions provided in R.C.
3719.011 provide an objective standard for law enforcement to determine which
persons are prohibited by R.C. 2923.13(A)(4) from carrying a firearm. Therefore,
contrary to Alexander’s assertions, the language in R.C. 3719.011 actually prohibits law
enforcement from exercising excessive discretion. Although he claims that the statute
“can be enforced against non-dangerous gun owners whenever an officer * * * has the
slightest evidence that the gun owner may have recently used or tried drugs,” the
definitions provided in R.C. 3719.011 directly contradict this assertion. Rather, a drug
dependent person must be “physically, psychologically, or physically and
psychologically dependent upon the use of such drug, to the detriment of the person’s
health or welfare”; a person in danger of becoming drug dependent must participate in
“habitual or incontinent use of any drug of abuse” and be “in imminent danger of
becoming a drug dependent person.” R.C. 3719.011(B) & (C). Clearly, a conviction
under R.C. 2923.13(A)(4) requires more than just an officer’s belief that the defendant
has recently used or tried drugs.
{¶25} Finally, Alexander argues that R.C. 2923.13(A)(4) is unconstitutionally
vague because it infringes on the fundamental right to bear arms. However, under his
first assignment of error we have already declined to address his Second Amendment
claim because Alexander failed to raise it in the trial court. Accordingly, we overrule
Alexander’s second assignment of error.
Adams App. No. 12CA945 12
C. Jury Instructions
{¶26} Finally, in his third assignment of error Alexander argues that when the
trial court misstated the law in its instruction to the jury for his weapons under disability
offense, the court violated his right to a fair trial before a properly instructed jury, and his
federal and state right to due process. Specifically, he points out the court’s instructions
included the language “not having been relieved of disability as provided in Section
2923.14 of the Revised Code,” which was included in the indictment, but is not part of
the description of the offense. He claims this confused the jury, resulting in an
erroneous verdict.
{¶27} Because Alexander failed to object to the court’s jury instructions at trial,
he was waived all but plain error. See ¶ 10 of this opinion (discussing plain error).
{¶28} “Due process requires that the state establish beyond a reasonable doubt
every fact necessary to constitute the crime charged.” Lynn, 129 Ohio St.3d 146, 2011-
Ohio-2722, 950 N.E.2d 931, at ¶ 15. “As a general rule, a defendant is entitled to have
the jury instructed on all elements that must be proved to establish the crime with which
he is charged * * *.” State v. Adams, 62 Ohio St.2d 151, 153, 404 N.E.2d 144 (1980).
{¶29} R.C. 2923.13(A)(4) states: “Unless relieved from disability as provided in
section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or
use any firearm or dangerous ordnance, if * * * [t]he person is drug dependent, in
danger of drug dependence, or a chronic alcoholic.” However, “unless relieved from
disability” is not an element of the offense, but an affirmative defense. See State v.
Whitaker, 4th Dist. No. 07CA3168, 2008-Ohio-4149, ¶ 20. Therefore, the defendant
rather than the state has the burden of proof on that issue. Id. Accordingly, the
Adams App. No. 12CA945 13
language is not included in the Ohio Jury Instructions for R.C. 2923.13(A). 3 Ohio Jury
Instructions, Section 523.13 (2012).
{¶30} When the court initially provided the instructions to the jury, it stated :
Before you can find the defendant guilty in count one, having weapons while
under disability you must find beyond a reasonable doubt that on or about
January 14th, 2011, in Adams County, Ohio, that the defendant, Barry
Alexander, not having been relieved from disability as provided in Section
2923.14 of the Revised Code, did knowingly acquire, have, carry or use a
firearm or dangerous ordinance, and that said Barry Alexander is drug
dependent, in danger of drug dependence, or is a chronic alcoholic. This
act is alleged to be in violation of Ohio Revised Code 2923.13(A)(4).
{¶31} After the court finished addressing the jury, the state informed the court
that it included the language “not having been relieved from disability,” but that the Ohio
Jury Instructions do not include it as an element of the offense and it was concerned
that the jury would determine that it was essential element that the state must prove.
The court asked both counsel whether they would like it corrected. The state
responded that it was not seeking a curative instruction, but would like the language
omitted from the written instructions provided to the jury. Alexander’s counsel clarified
that he did not have any objection and would “leave it to the discretion of the court.”
The court agreed and did not give a curative instruction before the jury began
deliberations.
{¶32} Once the jury left the courtroom, the court again discussed the issue with
counsel. Defense counsel again stated that he would “leave it to the sound discretion of
the court.” The court decided that it was not going to strike the language from the jury
instructions, but rather if the jury returned with a question, it would respond that the
statutory language was not an essential element, but an affirmative defense that the
defense must raise.
Adams App. No. 12CA945 14
{¶33} After approximately 45 minutes of deliberation, the jury returned with its
first question for the court. The three-part question asked: 1.) “was Mr. Alexander under
weapons disability on January 14th, 2011;” 2.) “if he was under the disability what was
the charges pertaining to this restriction;” and 3.) “define disability to have weapons
while under this.”
{¶34} The court proposed to answer part one of the jury’s question in the
negative and part two not as applicable. Addressing part three, it responded:
The words “not having been relieved of disability as provided in Section
2923.14 of the Revised Code” are not part of the description of the offense.
Rather it is an affirmative defense that may be asserted by the defendant.
“Not having been relieved of this disability” is not an essential element
required proved by the State of Ohio. The essential element of “having
weapons while under disability,” which is required proven beyond a
reasonable doubt requires a finding of Mr. Alexander “drug dependent
person” or “in danger of becoming a drug dependent person” or “chronic
alcoholic.” The definition of each can be found on pages 5 and 6 of the jury
instructions submitted.
Defense counsel stated that he was “satisfied with the answer.”
{¶35} Shortly thereafter, the jury submitted its second question for the court:
“Why does the court instructions say that Barry Alexander ‘not having been relieved of
disability as provided under section 2923.14 of the Revised Code’? And your response
to the question previously asked about if he was on weapons disability stated he was
not on weapons disability. Define weapons disability.”
{¶36} The court again responded without objection from defense counsel: “The
court instructions that say that Barry Alexander ‘not having been relieved of disability as
provided under section 2923.14 of the Revised Code.’ The Court’s instructions say that
because this is the statutory language from which the Court has no authority to change.”
In response to the defining weapons disability inquiry, the court responded:
Adams App. No. 12CA945 15
Having a weapons disability requires you to find beyond a reasonable
doubt each of the following: 1.) on or about January 14th, 2011, in Adams
County Ohio; 2.) Barry Alexander; 3.) did knowingly acquire, have, carry, or
use a firearm or dangerous ordinance; 4.) and the said Barry Alexander
was drug dependent, in danger of drug dependence, or was a chronic
alcoholic. The statutory language “not having been relieved from disability
as provided in Section 2923.14 of the Revised Code” is not an essential
element required proven by the State of Ohio. It is simply statutory
language not applicable to the subject case.
There were no further questions from the jury after this response, and the jury
deliberated for nearly three more hours before returning with a guilty verdict.
{¶37} Alexander points to the jury’s questions and the court’s responses as
evidence of prejudicial error. However we disagree, especially considering that
Alexander’s trial counsel consented to all of the court’s responses. In its last response,
the court clearly explained each element of the offense and that “not having been
relieved from disability” is not an essential element that the state must prove. Any error
by the court was cured with its responses, allowing the jury to consider the proper
elements. Accordingly, we cannot say that the error affected Alexander’s substantial
rights. We overrule Alexander’s third assignment of error.
IV. CONCLUSION
{¶38} In conclusion, we decline to address Alexander’s first assignment of error
because he failed to raise the constitutional issue at the trial court level. We overrule
his second and third assignment of errors and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Adams App. No. 12CA945 16
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
McFarland, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.