State v. AlexanderState v. Alexander
{¶1} Barry Alexander appeals his conviction for having weapons while under disability in violation of
{¶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
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
{¶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:
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
{¶10} Under
{¶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
{¶12} In this case, it is clear from the record that Alexander failed to raise any constitutional argument regarding
{¶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.
{¶16} In this case, Alexander urges us to consider the constitutionality of
B. Void-For-Vagueness
{¶18} In his second assignment of error, Alexander argues that
{¶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
{¶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,
As used in the Revised Code:
(A) “Drug of abuse” means any controlled substance as defined in section 3719.01 of the Revised Code , any harmful intoxicant as defined insection 2925.01 of the Revised Code , and any dangerous drug as defined insection 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
{¶25} Finally, Alexander argues that
{¶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
{¶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}
{¶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 ofOhio 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.
{¶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
{¶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
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.
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.