[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, 5th 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 Charlie J. Johnson appeals from his conviction and 
2

sentence for one count of carrying a concealed weapon (CCW), in violation of R.C. 

2923.12(A)(2), a felony of the fourth degree; and one count of improper handling of a 

firearm in a motor vehicle (loaded/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 for the instant appeal occurred on May 6, 

2012, at approximately 12:20 a.m. when Johnson was driving northbound on State Route 

741. Sergeant Mike Keegan of the Moraine Police Department was also driving 

northbound on S.R. 741 in a marked police blazer. 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 then 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 just inside the city limits of West Carrollton, 

Ohio. Sgt. Keegan pulled into the Sunoco parking lot and initiated a traffic stop of 

Johnson’s vehicle. 

{¶ 3} Immediately upon being pulled over, Johnson 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 had 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 handgun 
3

ammunition boxes in the back seat area in plain view. Sgt. Keegan asked Johnson if there 

were any handguns in the vehicle. Johnson indicated that there were several handguns in 

the backseat area of the truck. Johnson also informed Sgt. Keegan that he did not have a 

permit for carrying a concealed weapon. Sgt Keegan 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 vehicle. 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 several 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. Keegan and the other officers searched 

his vehicle. The search yielded several more 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 were loaded, stating, “What’s the point of 

having a gun if it’s not loaded.” Johnson also explained that he did 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 permit. Upon further examination, the police 

officers found that all of the guns taken from Johnson’s vehicle were, in fact, loaded. 

{¶ 7} On May 31, 2012, Johnson was indicted for five counts of carrying 
4

concealed weapons (loaded/ready 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 gathered as a result of the stop of his vehicle. 

After an evidentiary hearing held on September 6, 2012, the trial court overruled Johnson’s 

motion to suppress. Johnson filed a motion to dismiss the indictment on September 24, 

2012, and shortly thereafter the State responded with a memorandum contra on October 30, 

2012. The trial court overruled Johnson’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 State’s case, it dismissed Count 

V of the indictment for carrying a concealed weapon. The trial court subsequently found 

Johnson guilty of four counts of carrying a concealed 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 contends that the phrase “ready at hand” as 

used in R.C. 2923.12 is unconstitutionally void for 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 argument 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 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. 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 prohibited, and if the law provides sufficient 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 and 
6

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, specifically 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 particularity 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 orderly 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 Amendment right to bear arms is not 

infringed upon in this instance because there is no constitutional right to bear concealed 

weapons. Ohio courts have clearly and unequivocally defined when 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 vehicle located behind the driver’s seat, under the 
7

driver’s seat, in the center console, and draped 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 could not conform his conduct to one statute 

without violating the other. 

{¶ 22} R.C. 2923.16(B) provides in pertinent part: 

(B) No person shall knowingly transport 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 the 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 pertinent part: 

(A) No person shall knowingly carry or have, concealed on the 
8

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 conflict between R.C. 2923.12 and R.C. 2923.16 

was addressed in Davis, wherein the defendant was arrested 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 comply with R.C. 2923.16(C) without violating R.C. 

2923.12. The Ohio Supreme Court stated as follows: 

There are three other means by which Davis could have transported 

the handgun without violating the statute. The unloaded gun could have 

been in plain sight on a gun rack; outside 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 Davis' decision to include a loaded 

magazine in the closed box, in close proximity to the handgun and himself, 

that caused Davis to be in violation 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 conflict with one another. The 

violation of the CCW statute, R.C. 2923.12, does not automatically result in the violation of 
9

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 defendant possessed a loaded firearm 

while inside a motor vehicle in the manner prohibited by R.C. 2923.16.. 

Further, concealment is not an element 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 categories of weapons covered by R.C. 

2923.12 are broader than those of R.C. 2923.16. Therefore, since the 

elements of carrying a concealed weapon and improperly handling firearms in 

a motor vehicle do not correspond to such 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 unloaded 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 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. 

{¶ 28} Had Johnson chosen to transport the loaded firearms in a box, that action 

would violate R.C. 2923.16(B), but not violate 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 under R.C. 2923.12(A)(2), but not guilty of 

improperly handling firearms 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 found 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, thereby conforming his conduct to both R.C. 2923.12 

and R.C. 2923.16 simultaneously. In the alternative, Johnson could have transported the 

gun on a gun rack in plain sight, with the ammunition on the back bench 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 should 
11

be considered an additional element which the State 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 for an unlawful purpose. 

{¶ 31} R.C. 2923.12(C)(1)(c) provides in pertinent part: 

(C)(1) This section does not apply to any of the following: 

*** 

(c) A person's transportation or storage of a firearm, other than a 

firearm described in divisions (G) to (M) of section 2923.11 of the Revised 

Code, in a motor vehicle for any lawful purpose if the firearm is not on the 

actor's person; ***. 

 {¶ 32 } Conversely, the State argues that Johnson failed to assert R.C. 

2923.12(C)(1)(c) as an affirmative defense. “The burden of going forward with the 

evidence of an affirmative defense, and the 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 expressly designated as affirmative,” or “[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.” R.C. 

2901.05(D)(1)(a); R.C. 2901.05(D)(1)(b). The State 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 was 
12

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 reasonable doubt that Johnson was transporting 

loaded, concealed weapons which were “ready at hand.” 

{¶ 33} Johnson’s second assignment of error is overruled. 

{¶ 34} Johnson’s third and final assignment of error is as follows: 

{¶ 35} “THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S 

MOTION TO SUPPRESS EVIDENCE, BECAUSE 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 Moraine police violated the extraterritorial 

arrest statute, R.C. 2935.03(D), which states in pertinent part: 

(D) If a sheriff, deputy sheriff . . . municipal police officer . . . is 

authorized . . . to arrest and 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 the 
13

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 equivalent municipal ordinance, a misdemeanor of the 

second degree or a substantially equivalent 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 observed 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 state 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 United States Constitution even if the 

officer had some ulterior motive for making 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 exclusionary rule does not apply to 
14

evidence obtained incident to police conduct in violation 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 that R.C. 2935.03(D) imposes on the 

authority of an officer to pursue, detain, and arrest a person outside the 

territorial jurisdiction in which the officer is appointed are administrative 

restrictions. A violation of those restrictions does not implicate that person's 

liberty interests, so as to result in a violation of his due process rights 

protected by the Fourteenth Amendment. 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 the 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 his 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 defendant was arrested and 

ultimately convicted of driving while 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 danger 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 imminent safety danger to other motorists, the 
15

court in Fitzpatrick could articulate no reason why the officer 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) provides 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 officer’s arrest powers, is not a constitutional violation, and 

will not, therefore, support the extraordinary remedy of exclusion of evidence obtained as a 

result of an unlawful stop or arrest. Sgt. Keegan observed Johnson perform an illegal u-turn 

and run over a curb in his territorial jurisdiction. 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 was not entitled to the application of the 

exclusionary rule with respect to the loaded, 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 stopping and detaining persons driving erratically outweighs the 

momentary restriction of the driver’s rights. Id. at 506. 

{¶ 43} Johnson’s third and final assignment of error is overruled. 

{¶ 44} All of Johnson’s assignments 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