[Cite as State v. Johnson , 2014-Ohio-2815.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 25773

v. : T.C. NO. 12CR1381 CHARLIE JOHNNY JOHNSON : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N Rendered on the 27th day of June , 2014.

. . . . . . . . . . MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5 th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee SCOTT A. ASHELMAN, Atty. Reg. No. 0074325, 703 Liberty Tower, 120 W. Second Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . DONOVAN, J. {¶ 1} Defendant-appellant Char lie J. Johnson appeals from his conviction and2 sentence for one count of carrying a conceal ed weapon (CCW), in violation of R.C. 2923.12(A)(2), a felony of the fourth degree; and one count of imp roper handling of a firearm in a motor vehicle (loa ded/no license), in violation of R.C. 2923.16(B), also a felony of the fourth degree. Johnson filed a timely notice of appeal with this Court on May 28, 2013. {¶ 2} The incident which forms the basis fo r the instant appeal occurred on May 6, 2012, at approximately 12:20 a.m. when J ohnson was driving northbound on State Route 741. Sergeant Mike Keegan of the Morain e Police Department was also driving northbound on S.R. 741 in a marked police blaz er. Sgt. Keegan witnessed Johnson, who was driving a 2002 Chevrolet pickup truck, execute an illegal U-turn at the intersection of S.R. 741 and South Dixie, strike the curb, and th en proceed to pull into the parking lot of a Sunoco gas station. Johnson committed the U-turn while still in the City of Moraine, Ohio. The Sunoco gas station, however, was located ju st inside the city limits of West Carrollton, Ohio. Sgt. Keegan pulled into the Sunoco parking lot and initiate d a traffic stop of Johnson’s vehicle. {¶ 3} Immediately upon being pulled over, J ohnson exited his truck. Sgt. Keegan ordered Johnson back into his vehicle in order to run his plates. Sgt. Keegan testified that this is routine procedure during a traffic stop in order to determine if Johnson potentially had a concealed carry weapon license or if he ha d any other outstanding warrants against him. Sgt. Keegan then approached Johnson as he was sitting in the driver’s seat of the vehicle and told him that the reason for the stop was for an improper U-turn and for striking the curb. {¶ 4} While speaking with Johnson, Sgt. Keegan observed two closed handgun3 ammunition boxes in the back s eat area in plain view. Sgt. Keegan asked Johnson if there were any handguns in the vehicle. Johnson i ndicated that there were several handguns in the backseat area of the truck. Johnson also in formed Sgt. Keegan that he did not have a permit for carrying a concealed weapon. Sgt Keeg an returned to his vehicle and called for additional officers to respond. Moraine Police Officers Henry and Fugate responded to the call. {¶ 5} After the other officers arrived, Sgt. Keegan and Officer Fugate approached Johnson’s vehicle and directed him to exit the ve hicle. Johnson got out of the vehicle, and Sgt. Keegan began questioning him regarding whether more weapons were present in the vehicle. Johnson responded that he had se veral knives about his person. The officers disarmed Johnson, handcuffed him, and placed him under arrest for carrying concealed
weapons. {¶ 6} Once Johnson was in custody, Sgt. Keeg an and the other officers searched his vehicle. The search yielded several mo re knives, as well as several handguns and a 12-gauge shotgun. Officer Fugate read Johnson his Miranda rights and Johnson stated that he understood his rights and waived them. Upon being questioned regarding the presence of the guns, Johnson admitted that the guns we re loaded, stating, “What’s the point of having a gun if it’s not loaded.” Johnson also explained that he di d not have a CCW permit because he knew that police officers would be more likely to pull him over if they ran his plates and discovered that he had a CCW pe rmit. Upon further examination, the police officers found that all of the guns taken fro m Johnson’s vehicle were, in fact, loaded. {¶ 7} On May 31, 2012, Johnson was indicted for five counts of carrying4 concealed weapons (loaded/read y at hand), and five counts of improperly handling firearms in a motor vehicle (loaded/no license). On August 7, 2012, Johnson filed a motion to suppress all physical and testimonial evidence gather ed as a result of the stop of his vehicle. After an evidentiary hearing held on Sept ember 6, 2012, the trial c ourt overruled Johnson’s motion to suppress. Johnson filed a motion to dismiss the indictment on September 24, 2012, and shortly thereafter the State responde d with a memorandum contra on October 30, 2012. The trial court overruled J ohnson’s motion to dismiss in a decision and entry issued on November 9, 2012. {¶ 8} On January 28, 2013, Johnson waived a jury, and the matter proceeded to a bench trial on February 15, 2013. At the conclusion of the Stat e’s case, it dismissed Count V of the indictment for carry ing a concealed weapon. The tr ial court subs equently found Johnson guilty of four counts of carrying a c oncealed weapon and four counts of improperly handling of firearms in a motor vehicle. The trial court found Johnson not guilty of Count X of the indictment for improperly handling of firearms in a motor vehicle. The trial court merged Counts I-IV, and Counts VI-IX. On the remaining two counts, Johnson was sentenced to community control sanctions for a period not to exceed five years. {¶ 9} It is from this judgment that Johnson now appeals. {¶ 10} Johnson’s first assignment of error is as follows: {¶ 11} “THE LANGUAGE OF OHIO REVISED CODE SECTION § 2923.12(A) CONCERNING THE PHRASE ‘READY AT HAND,’ IS UNCONSTITUTIONALLY VOID FOR VAGUENESS; THUS, THE TRIAL COURT ERRED IN ITS RELIANCE UPON THAT STATUTE TO ARRIVE AT APPELLANT’S CONVICTION.”[Cite as State v. Johnson , 2014-Ohio-2815.] {¶ 12} In his first assignment, Johnson conte nds that the phrase “ready at hand” as used in R.C. 2923.12 is unconstitutionally void fo r vagueness. Therefore, Johnson argues that the trial court erred when it relied on that portion of the statute in order to find him guilty of carrying a concealed weapon. Johnson also asserts that R.C. 2923.12 violates his Second Amendment right to bear arms. {¶ 13} R.C. 2923.12(A) states in pertinent part: No person shall knowingly carry or have, concealed on the person's person or concealed ready at hand , any of the following: (1) A deadly weapon other than a handgun; (2) A handgun other than a dangerous ordnance; (3) A dangerous ordnance. (Emphasis added) {¶ 14} Upon review, we reject Johnson’s argu ment that R.C. 2923.12(A) is void for vagueness. To establish that a statute is unconstitutionally vague, the challenging party must show that it is vague not in the sense th at it requires a person to conform his conduct to an imprecise but comprehensible normative standa rd, but rather in the sense that no standard of conduct is specified at all. Cane Task Force v. Nahum , 159 Ohio App.3d 579, 2005-Ohio-300, 824 N.E.2d 1019, at ¶ 14 (2d Dist.). “[A] law will survive a void for vagueness challenge if it is written so that a person of common intelligence is able to ascertain what conduct is prohib ited, and if the law provides su fficient standards to prevent arbitrary and discriminatory enforcement.” Klein v. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779, 795 N.E.2d 633, at ¶ 16, citing State v. Williams , 88 Ohio St.3d 513, 533, 728 N.E.2d 342 (2000). {¶ 15} “Ready at hand” has been defined as being conveniently accessible and6 within immediate physical reach. State v. Davis , 115 Ohio St.3d 360, 363, 2007-Ohio-5025, 875 N.E.2d 80, at ¶29, quoting from State v. Miller , Montgomery App. No. 19589, 2003-Ohio-6239, at ¶14. Thus, R.C. 2923.12 is not void for vagueness. Klein , 99 Ohio St.3d 537, at ¶ 16. Rather, R.C. 2923.12, specifi cally the phrase “ready at hand,” is “capable of being understood by a person of common intelligence and provide[s] sufficient standards to prevent arbitrary and discriminatory enforcement.” Id

. {¶ 16} Johnson also asserts that the R.C. 2923.12 unreasonably interferes with his Second Amendment guarantee of the right to bear arms. Specifically, Johnson claims that R.C. 2923.12 does not inform him with enough par ticularity as to the circumstances wherein he can legally bear arms. This issue was also addressed by the Ohio Supreme Court in Klein :

The General Assembly has determined that prohibiting the carrying of concealed weapons helps maintain an or derly and safe society. We conclude that the goal and the means used to attain it are reasonable. We hold that R.C. 2923.12 does not unconstitutionally infringe the right to bear arms; there is no constitutional right to bear concealed weapons

. Id . at ¶ 7. {¶ 17} Accordingly, Johnson’s Second Amendm ent right to bear arms is not infringed upon in this instance because there is no constitutional right to bear concealed weapons. Ohio courts have cl early and unequivocally defined wh en a firearm is considered “ready at hand” for the purpose of R.C. 2923.12. The record established that Sgt. Keegan discovered loaded firearms in Johnson’s vehicl e located behind the driver’s seat, under the7 driver’s seat, in the center console, and drap ed over the passenger seats. Thus, pursuant to R.C. 2923.12, the firearms were “ready at hand,” Johnson was properly found guilty. {¶ 18} Johnson’s first assignment of error is overruled. {¶ 19} Johnson’s second assignment of error is as follows: {¶ 20} “THE ELEMENTS OF [O.R.C.] § 2923.12(C)(1)(C) AND [O.R.C.] § 2923.16(B) ARE IN CONFLICT, ONE SECTION PERMITTING CONDUCT PROSCRIBED BY THE OTHER. THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION TO DISMISS BASED UPON THAT CONFLICT, AND ERRED IN FINDING APPELLANT GUILTY IN LIGHT OF THE CONFLICT.” {¶ 21} In his second assignment, Johnson argues that R.C. 2923.16 and R.C. 2923.12 conflict in such a manner that Johnson c ould not conform his c onduct to one statute without violating the other. {¶ 22} R.C. 2923.16(B) provides in pertin ent part: (B) No person shall knowingly transpor t or have a loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the operator or any passenger without leaving the vehicle. {¶ 23} Thus, R.C. 2923.16(B) does not prohibit th e transportation of all guns in a motor vehicle. Rather, the statute simply limits an individual’s right to transport a loaded gun within reach of the driver or any passenger. State v. King , 2d Dist. Montgomery No. 24141, 2011-Ohio-3417, ¶ 23. {¶ 24} As previously noted, R.C. 2923.12 provides in pe rtinent part: (A) No person shall knowingly carry or have, concealed on the8 person's person or concealed ready at hand, any of the following: (1) A deadly weapon other than a handgun; (2) A handgun other than a dangerous ordnance; (3) A dangerous ordnance. {¶ 25} The issue of a potential conflic t between R.C. 2923.12 and R.C. 2923.16 was addressed in Davis , wherein the defendant was arrest ed for carrying a concealed weapon in a case discovered lying next to a box of ammunition. Id., at 115 Ohio St.3d 360, ¶ 28. The defendant argued that he could not comp ly with R.C. 2923.16(C) w ithout violating R.C. 2923.12. The Ohio Supreme Court stated as follows: There are three other means by wh ich Davis could ha ve transported the handgun without violating the stat ute. The unloaded gun could have been in plain sight on a gun rack; outsi de the passenger compartment of his vehicle; or in plain sight, stripped or with the action open. Davis chose to have the unloaded weapon in a closed box at his feet. That action alone complied with R.C. 2923.16 and would not violate R.C. 2923.12 unless the weapon was “ready at hand.” It was Da vis' decision to include a loaded magazine in the closed box, in close proximity to the handgun and himself, that caused Davis to be in vi olation of R.C. 2923.12(A)(2). Id. , at ¶ 26. {¶ 26} Furthermore, an examination of the elements of R.C. 2923.12 and R.C. 2923.16 demonstrates that the two statutes are not in conflic t with one another. The violation of the CCW statute, R.C. 2923.12, does not automatically result in the violation of9 the improper handling of firearms in a motor vehicle statute, R.C. 2923.16. In State v. Baker , 12th Dist. Warren No. CA96-12-123, 1997 WL 473620 (August 18, 1997), the Twelfth Appellate District found as follows: A comparison of the elements for carrying concealed weapons, R.C. 2923.12, and improperly handling firearms in a motor vehicle, R.C. 2923.16, also reveals that these crimes are not allied offenses of similar import. R.C. 2923.12 does not require proof that the de fendant possessed a loaded firearm while inside a motor vehicle in the manner prohibited by R.C. 2923.16.. Further, concealment is not an elem ent of R.C. 2923.16. Finally, since R.C. 2923.12 applies to any deadly weapon or dangerous ordnance while 2923.16 only applies to loaded firearms, the cat egories of weapons covered by R.C. 2923.12 are broader than those of R.C. 2923.16. Therefore, since the elements of carrying a c oncealed weapon and improperly handling firearms in a motor vehicle do not correspond to su ch a degree that commission of one offense will result in the commission of the other, we conclude that these offenses are not allied offenses of similar import under R.C. 2941.25(A). {¶ 27} In the instant case, Johnson was found to have four loaded guns concealed in the interior compartment of the vehicle, each gun ready at hand or easily accessible to him. Johnson was, therefore, in violation of R.C. 2923.12(A)(2) and R.C. 2923.16(B). Johnson, however, could have followed R.C. 2923.16(C), which provides other means by which he could have transported an unl oaded handgun without violating the statute. Specifically, R.C. 2923.16 provides as follows:[Cite as State v. Johnson , 2014-Ohio-2815.] (C) No person shall knowingly transpor t 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 wa ys:(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 r ack or holder made for the purpose. {¶ 28} Had Johnson chosen to transport the lo aded firearms in a box, that action would violate R.C. 2923.16(B), but not viol ate R.C. 2923.12, unless the weapon was “ready at hand” as interpreted in Davis and Miller. Furthermore, if Johnson had transported the guns unloaded on the passenger seat but had a box of ammunition in his pocket, he would be guilty of carrying a concealed weapon unde r R.C. 2923.12(A)(2), but not guilty of improperly handling firear ms under R.C. 2923.16(B). {¶ 29} Accordingly, Johnson could comply with R.C. 2923.16 by not having a loaded weapon in the vehicle, but still be f ound in violation of R.C. 2923.12(A)(2) if he had ammunition to the weapon “ready at hand.” However, Johnson, for example, could have the weapons present in his vehicle unloaded in a locked box, and have the ammunition in the back seat of the truck on the bench, ther eby conforming his conduct to both R.C. 2923.12 and R.C. 2923.16 simultaneously. In the altern ative, Johnson could ha ve transported the gun on a gun rack in plain sight, with the ammunition on the back be nch of the truck and complied with both statutes. Johnson, however , eschewed all of his legal options for transporting his handguns. Rather, Johnson chose to transport loaded firearms which were placed in his vehicle so as to be “ready at hand.” {¶ 30} Johnson also asserts that R.C. 2923.12( C)(1)(c) is an exception that should11 be considered an additional element which the St ate had to prove to sustain his convictions for CCW. Specifically, Johnson argues that pursuant to R.C. 2923.12(C)(1)(c), the State had to prove beyond a reasonable doubt that he was transporting the loaded, concealed firearms in his vehicle fo r an unlawful purpose. {¶ 31} R.C. 2923.12(C)(1)(c) provi des in pertinent part: (C)(1) This section does not apply to any of the following:
*** (c) A person's transportation or stor age 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; ***. {¶ 32 } Conversely, the State argues th at Johnson failed to assert R.C. 2923.12(C)(1)(c) as an affirmativ e defense. “The burden of going forward with the evidence of an affirmative defense, and th e burden of proof, by a preponderance of the evidence, for an affirmative defense, is on the accused.” R. C. 2901.05(A). An affirmative defense is defined as either “[a] defense expre ssly designated as affirmative,” or “[a] defense involving an excuse or justification pecu liarly within the knowledge of the accused, on which the accused can fairly be require d to adduce supporting evidence.” R.C. 2901.05(D)(1)(a); R.C. 2901.05(D)(1)(b). The St ate points out that only Johnson would know why he was transporting the firearms loaded in his vehicle. If Johnson was transporting the loaded and concealed firearms for a lawful purpose, it would serve as an excuse or justification peculiarly within his own personal knowledge. Thus, it was12 incumbent upon Johnson to adduce evidence which supported the affirmative defense that he was transporting the loaded, concealed firearms with a lawful purpose. The State, on the other hand, only had to prove beyond a reas onable doubt that Johnson was transporting loaded, concealed weapons whic h were “ready at hand.” {¶ 33} Johnson’s second assignment of error is overruled. {¶ 34} Johnson’s third and final assign ment of error is as follows: {¶ 35} “THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S MOTION TO SUPPRESS EVIDENCE, BEC AUSE THE AGENTS OF THE MORAINE POLICE DEPARTMENT VIOLATED APPELLANT’S RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS.” {¶ 36} In his final assignment, Johnson contends that the trial court erred when it overruled his motion to suppress because his traffic stop and subsequent arrest took place outside the jurisdiction of the City of Moraine police, thereby rendering it statutorily illegal and unreasonable. {¶ 37} Specifically, Johnson argues that the Mora ine police violated th e extraterritorial arrest statute, R.C. 2935.03(D), wh ich states in pertinent part: (D) If a sheriff, deputy sheriff . . . municipal police officer . . . is authorized . . . to arrest a nd detain, within . . . the territorial jurisdiction of the peace officer, a person until a warrant can be obtained, the peace officer, outside the limits of that territory, may pursue, arrest, and detain that person until a warrant can be obtained if all of the following apply: (1) The pursuit takes place without unreasonable delay after the13 offense is committed; (2) The pursuit is initiated within the . . . territorial jurisdiction of the peace officer; (3) The offense involved is a felony , a misdemeanor of the first degree or a substantially equiva lent municipal ordinance, a misdemeanor of the second degree or a substantially equiva lent municipal ordinance, or any offense for which points are chargeable pursuant to R.C. 4510.036. {¶ 38} In order to ascertain whether a traffic stop violates the Fourth Amendment, the officer's actions must be obser ved objectively and in light of what was known to the officer at the time of the stop. Dayton v. Erickson , 76 Ohio St.3d 3, 6, 665 N.E.2d 1091 (1996). An officer's subjective stat e of mind is not relevant. Id . Specifically, the Supreme Court held: [W]here a police officer stops a vehicle based on probable cause that a traffic violation has occurred or was occurring, the stop is not unreasonable under the Fourth Amendment to the Un ited States Constitution even if the officer had some ulterior motive for ma king the stop, such as suspicion that the violator was engaging in more nefarious criminal activity. Id . at 11, 665 N.E.2d 1091. {¶ 39} Johnson properly asserts in his brief that even though an extraterritorial stop is a violation of state law, it is not a per se constitutional violation, which renders evidence obtained from such a stop subject to the exclusionary rule. Kettering v. Hollen , 65 Ohio St.2d 232, 234-235, 416 N.E.2d 598, 600 (1980). The excl usionary rule does not apply to14 evidence obtained incident to police conduct in vi olation of state law but not in violation of constitutional rights. State v. Henderson , 2d Dist. Montgomery No. 22831, 2009-Ohio-4122, citing State v. Wiedeman , 94 Ohio St.3d 501, 2002–Ohio–1484, 764 N.E.2d 997. {¶ 40} In Henderson at ¶ 11, we stated the following: The particular limitations th at R.C. 2935.03(D) imposes on the authority of an officer to pursue, de tain, and arrest a person outside the territorial jurisdiction in which the o fficer is appointed are administrative restrictions. A violation of those rest rictions does not implicate that person's liberty interests, so as to result in a violation of his due process rights protected by the Fourteenth Amendmen t. Neither does a violation of R.C. 2935.03(D), in and of itself, constitute a Fourth Amendment violation for which suppression of evidence is authorized. (Citations omitted) {¶ 41} In support of his argument that th e Moraine police violated R.C. 2935.03(D), Johnson relies on State v. Fitzpatrick , 152 Ohio App.3d 122, 2003-Ohio-1405, 786 N.E.2d 942 (6th Dist.). In Fitzpatrick , a police officer outside of hi s jurisdiction witnessed a car with illegal plates driving at a low speed. Id. at ¶ 4. Upon initiating a stop of the vehicle, the officer discovered that the defendant was intoxicated. The defenda nt was arrested and ultimately convicted of driving wh ile under the influence of alcohol. Id . at ¶ 1. In reversing the defendant’s conviction, the court relied upon the fact that the defendant’s driving manner did not appear to impose a dang er to any other motorists. Id . at ¶ 14. Thus, the officer had no reasonable suspicion of criminal activity by the defendant until he left his jurisdiction. Id

. Because the violation did not present an immin ent safety danger to other motorists, the15 court in Fitzpatrick could articulate no reason why the offi cer could not have notified police officers with jurisdictional authority to the general location of the vehicle so they could stop the defendant. Id. Fitzpatrick is distinguishable from the instant case. {¶ 42} Initially, we note that R.C. 2935.03(D) provi des for an arrest outside the limits of the subdivision if pursuit is initiated within the limits of the political subdivision in which the peace officer is appointed. State v. Pierce, 2d Dist. Montgomery No. 19926, 2003-Ohio-7244, citing State v. Coppock , 103 Ohio App. 3d 405, 659 N.E.2d 837 (2d Dist.1995). In Coppock, we held that a stop or arrest in violation of the territorial limits imposed by statute upon a police o fficer’s arrest powers, is not a constitutional violation, and will not, therefore, support the extraordinary re medy of exclusion of evidence obtained as a result of an unlawful stop or arrest. Sgt. K eegan observed Johnson perform an illegal u-turn and run over a curb in his territorial jurisdicti on. Clearly, Sgt. Keegan had a lawful basis to initiate a traffic stop of Johnson. The only impropriety with the stop was its alleged extra-territorial nature. Pierce , 2003-Ohio-7244. This was, at most, a statutory violation, not a constitutional violation, and Johnson wa s not entitled to the application of the exclusionary rule with respect to the load ed, concealed weapons found in his vehicle. Wiedeman , 94 Ohio St.3d 501, 2002–Ohio–1484, 764 N.E.2d 997. The State’s interest in promoting public safety by stoppi ng and detaining persons driv ing erratically outweighs the momentary restriction of the driver’s rights. Id. at 506. {¶ 43} Johnson’s third and final assi gnment of error is overruled. {¶ 44} All of Johnson’s assignme nts of error having been overruled, the judgment of the trial court is affirmed.16

. . . . . . . . . . FAIN, J. and WELBAUM, J., concur. Copies mailed to: Michele D. Phipps Scott A. Ashelman Hon. Michael W. Krumholtz