[Cite as State v. Weber,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, : CASE NO. CA2018-06-040

Appellee, : OPINION 3/18/2019 : - vs - :

FREDRICK M. WEBER, :

Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT Case No. 2018CRB00659

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South Riverside Drive, 2nd Floor, Batavia, OH 45103, for appellee

Gary A. Rosenhoffer, 313 E. Main Street, Batavia, OH 45103, for appellant

M. POWELL, J.

{¶ 1} Appellant, Fredrick Weber, appeals his conviction in the Clermont County

Municipal Court for using weapons while intoxicated.

{¶ 2} Around 4:00 a.m. on February 17, 2018, a deputy and a sergeant from the

Clermont County Sheriff's Office were dispatched to appellant's home following the 9-1-1

call of his wife reporting that appellant was in possession of a firearm and intoxicated. When Clermont CA2018-06-040

the officers arrived at the scene, appellant's wife advised them that everything was alright

as appellant had put the firearm away. The deputy asked her if they could enter the home

and she escorted them inside. Once inside, the officers observed appellant coming out of

a doorway, holding a shotgun by the stock with the barrel pointed down. Appellant told the

officers that the shotgun was unloaded and that he was unloading it to wipe it down. The

officers took possession of the shotgun and confirmed it was unloaded. The officers did not

observe any ammunition for the shotgun.

{¶ 3} While interacting with appellant, the deputy detected the odor of an alcoholic

beverage on appellant's person. Appellant's eyes were bloodshot and glassy, his speech

was slurred, and he was unsteady on his feet. Appellant was unable to complete a field

sobriety test because he could not follow directions. Furthermore, he was swaying while

standing in the instruction position. Appellant stated several times that he was drunk. The

officers described appellant as "very intoxicated," "very impaired," and "highly intoxicated."

{¶ 4} Appellant was charged by complaint with one count of using weapons while

intoxicated in violation of R.C. 2923.15, a misdemeanor of the first degree. The matter

proceeded to a bench trial. Appellant did not testify or present witnesses on his behalf. At

trial, defense counsel stipulated that the shotgun satisfied the statutory definition of a firearm

and that it was operable.

{¶ 5} Following the state's case-in-chief, appellant moved for acquittal pursuant to

Crim.R. 29, arguing that mere possession of a firearm is not illegal and that Ohio citizens

have the right to arm themselves. Appellant further argued that R.C. 2923.15 was

unconstitutional as applied. The trial court took the matter under advisement. In a post-

trial memorandum, appellant once again argued that the statute was unconstitutional as

applied. By decision filed on June 5, 2018, the trial court rejected appellant's constitutional

challenge to R.C. 2923.15 and found appellant guilty as charged.

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{¶ 6} Appellant now appeals, raising two assignments of error which will be

considered together.

{¶ 7} Assignment of Error No. 1:

{¶ 8} THE GUILTY FINDING IS CONTRARY TO LAW.

{¶ 9} Assignment of Error No. 2:

{¶ 10} THE USING A WEAPON WHILE INTOXICATED STATUTE IS

UNCONSTITUTIONAL AS APPLIED TO THE FACTS OF THIS CASE.

{¶ 11} Appellant challenges his conviction on two separate grounds. Specifically,

appellant challenges his conviction on the ground the state failed to prove he was carrying

or using a firearm because "the record is devoid of any evidence that the unloaded shotgun

[appellant] was holding was carried or used as a firearm" or that he "had committed, was

committing or was about to commit" any "crime while holding the shotgun." Appellant further

challenges his conviction on the ground R.C. 2923.15 is unconstitutional on its face and as

applied because it infringes upon his right to keep and bear arms and defend himself.

{¶ 12} Appellant was convicted of violating R.C. 2923.15(A) which provides, "No

person, while under the influence of alcohol or any drug of abuse, shall carry or use any

firearm or dangerous ordnance." Whoever violates the statute is "guilty of using weapons

while intoxicated[.]" R.C. 2923.15(B). "'Firearm' means any deadly weapon capable of

expelling or propelling one or more projectiles by the action of an explosive or combustible

propellant. 'Firearm' includes an unloaded firearm, and any firearm that is inoperable but

that can readily be rendered operable." R.C. 2923.11(B).

{¶ 13} "[T]he word 'intoxicated' as used in R.C. 2923.15(B) means the state of being

'under the influence' [as used] in R.C. 2923.15(A)." State v. Smith, 9th Dist. Wayne No.

1610,

, *2-3 (Dec. 12, 1979). "Under the influence" has been

defined as the condition in which a person finds himself after having consumed some

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intoxicating beverage, whether mild or potent, and in such quantity, whether small or great,

that its effect on the person adversely affects his actions, reactions, conduct, movements

or mental processes or impairs his reactions to an appreciable degree, under the

circumstances then existing so as to deprive him of that clearness of the intellect and control

of himself which he would otherwise possess. State v. Eldridge, 12th Dist. Warren No.

CA2015-02-013,

.

{¶ 14} R.C. 2923.15 regulates the carrying or use of a firearm while intoxicated and

simply prohibits an individual from using or carrying, i.e. handling, any firearm while under

the influence of alcohol or any drug of abuse, as defined above. Smith at *2; State v.

Waterhouse, 7th Dist. Belmont No. 93-B-26,

, *4 (Feb. 16, 1995).

Contrary to appellant's assertion, the statute does not require that the firearm be used as a

firearm or that it be carried or used with the intent to use it as a weapon or firearm. Nor

does the statute require the state to prove that the intoxicated person had committed, was

committing, or was about to commit a crime while handling the firearm. Furthermore, R.C.

2923.15 does not, as suggested by appellant, criminalize the mere presence of a firearm in

the home of an intoxicated person. Nor does the statute, as suggested by appellant, prohibit

a person from carrying or using a firearm after consuming alcoholic beverages. Rather, the

statute only prohibits the use or carrying of a firearm by a person who has imbibed to the

point of intoxication.

{¶ 15} At trial, the state presented evidence that appellant was holding the shotgun

while he was "very impaired," "very intoxicated," and "highly intoxicated." Appellant's eyes

were bloodshot and glassy, his speech was slurred, he was unsteady on his feet, and an

odor of an alcoholic beverage was detected on his person. Appellant himself told the

officers several times that he was drunk. Appellant further stipulated at trial that the shotgun

satisfied the statutory definition of a firearm and that it was operable. "Once entered into

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by the parties and accepted by the court, a stipulation is binding upon the parties as 'a fact

deemed adjudicated for purposes of determining the remaining issues in the case.'"

Bodrock v. Bodrock, 8th Dist. Cuyahoga No. 104177,

, ¶ 19, quoting

Dejoseph v. Dejoseph, 7th Dist. Mahoning No. 10 MA 156,

. Thus,

the state presented evidence that appellant carried a firearm while under the influence of

alcohol. The record amply supports appellant's conviction under R.C. 2923.15.

{¶ 16} Appellant further challenges his conviction on the ground R.C. 2923.15 is

unconstitutional on its face and as applied because it infringes upon his right to keep and

bear arms and defend himself pursuant to the Second Amendment to the United States

Constitution, the United States Supreme Court's landmark decision in District of Columbia

v. Heller,

,

(2008), Article I, Section 4 of the Ohio Constitution,

R.C. 9.68(A), and the Ohio Castle Doctrine ("castle doctrine").

{¶ 17} Statutes enacted by the Ohio legislature enjoy a strong presumption of

constitutionality. State v. Romage,

,

. The party

challenging the constitutionality of a statute must prove that it is unconstitutional beyond a

reasonable doubt. Arnold v. Cleveland,

(1993).

{¶ 18} A party may challenge a statute as unconstitutional on its face or as applied

to a particular set of facts. State v. Lowe,

,

, ¶ 17. In a

facial challenge, the challenging party must demonstrate that there is no set of facts under

which the statute would be valid, that is, the statute is unconstitutional in all of its

applications.

. "The fact that a statute might operate unconstitutionally under

some plausible set of circumstances is insufficient to render it wholly invalid." Harrold v.

Collier,

,

, ¶ 37. A facial challenge permits a statute to

be attacked for its effect on conduct other than the conduct for which the defendant is

charged. State v. White, 6th Dist. Lucas No. L-10-1194,

, ¶ 151.

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{¶ 19} In an as-applied challenge, the challenging party "bears the burden of

presenting clear and convincing evidence of a presently existing set of facts that make the

statut[e] unconstitutional and void when applied to those facts." Collier at ¶ 38. The

challenging party contends that the application of the statute in the particular context in

which he has acted, or in which he proposes to act, would be unconstitutional. Yajnik v.

Akron Dept. of Health, Hous. Div.,

,

, ¶ 14. The practical

effect of holding a statute unconstitutional as applied is to prevent its future application in a

similar context, but not to render it utterly inoperative.

{¶ 20} We note that appellant seemingly argues that R.C. 2923.15 is unconstitutional

as applied under the castle doctrine because it forces him, and those similarly situated, to

choose between the constitutional right to keep arms in his house and the right to defend

his family and person under the doctrine. However, appellant did not engage in any such

activity. "A person to whom a statute may be constitutionally applied may not be heard to

challenge the statute on the ground that it may conceivably be applied unconstitutionally to

others, in other situations not before the court." State v. Taubman,

(2d Dist. 1992), citing Broadrick v. Oklahoma,

,

(1973). "[I]f

there is no constitutional defect in the application of the statute to a litigant, he does not

have standing to argue that it would be unconstitutional * * * in hypothetical situations."

State v. Jones, 12th Dist. Clermont No. CA94-11-094,

, *10

(June 19, 1995).

{¶ 21} The right to keep and bear arms is a fundamental right enshrined in federal

and state constitutional law. State v. Robinson, 12th Dist. Butler No. CA2014-12-256, 2015-

Ohio-4649, ¶ 11. In Heller, the United States Supreme Court held that the Second

Amendment to the United States Constitution confers an individual right to keep and bear

arms, and that its "core protection" is "the right of law-abiding, responsible citizens to use

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arms in defense of hearth and home." Heller,

. See also

McDonald v. Chicago,

,

(2010) (extending the Second

Amendment right to keep and bear arms to the states under the Fourteenth Amendment's

Due Process Clause).

{¶ 22} The Supreme Court however emphasized that this right is subject to certain

longstanding limitations:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. * * * Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

(Emphasis added.)

. The court additionally cautioned that "these

presumptively lawful regulatory measures [serve] only as examples; our list does not

purport to be exhaustive."

.

{¶ 23} Although the Supreme Court did not set forth the appropriate level of scrutiny

to be applied to restrictions to bear arms under the Second Amendment, it did reject the

rational-basis test as well as an "interest-balancing" standard as inappropriate. Heller,

. Following Heller, many courts have applied an intermediate

level of scrutiny. See State v. Henderson, 11th Dist. Portage No. 2010-P-0046, 2012-Ohio-

1268; State v. Campbell, 1st Dist. Hamilton No. C-120871,

; State v.

Wheatley, 4th Dist. Hocking No. 17CA3,

.

{¶ 24} Under the intermediate scrutiny standard, the legislation must (1) be narrowly

tailored to serve a significant government interest, and (2) leave open alternative means of

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exercising the right. Henderson at ¶ 52, citing Perry Ed. Assn. v. Perry Local Educators'

Assn.,

,

(1983). "A weapons-statute ordinarily will survive an

intermediate-scrutiny analysis if the statute is reasonably related to a significant,

substantial, or important governmental interest." Wheatley at ¶ 17. "Intermediate scrutiny

does not demand that the challenged law 'be the least intrusive means of achieving the

relevant governmental objective, or that there be no burden whatsoever on the individual

right in question.'"

quoting United States v. Masciandaro,

(4th

Cir. 2011).

{¶ 25} The Ohio Supreme Court has similarly held that Article I, Section 4 of the Ohio

Constitution confers an individual right to keep and bear arms "for defense of self and

property." Arnold,

. However, "this right is not absolute" and may be

limited in furtherance of valid public safety interests.

. The right to keep arms

is "subject to reasonable regulation" which, under the state's police powers, must "bear a

real and substantial relation" to secure "the health, safety, morals, or general welfare of the

public."

. The supreme court continued,

Any form of gun control legislation is destined to attract much attention. That does not change the fact that there must be some limitation on the right to bear arms to maintain an orderly and safe society while, at the same time, moderating restrictions on the right so as to allow for practical availability of certain firearms for purposes of hunting, recreational use and protection.

. Accordingly, "the recognized state right to bear arms is subject to reasonable

regulation which advances the health, safety, morals, or general welfare of the public."

Peoples Rights Org., Inc. v. Montgomery,

(12th Dist. 2001).

{¶ 26} "If the challenged legislation impinges upon a fundamental constitutional right,

courts must review the statut[e] under the strict-scrutiny standard." Collier,

at ¶ 39; State v. Emery, 12th Dist. Clermont No. CA2014-09-062,

, ¶ 13.

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See also State v. Aalim,

,

; State v. Noling,

,

. "Under the strict-scrutiny standard, a statute that infringes on

a fundamental right is unconstitutional unless the statute is narrowly tailored to promote a

compelling governmental interest." Collier at ¶ 39, citing Chavez v. Martinez,

,

(2003).

{¶ 27} We find that R.C. 2923.15 does not violate the right to keep and bear arms

set forth in the Ohio or federal Constitutions either on its face or as applied to appellant.

R.C. 2923.15 is narrowly tailored to serve the significant government interest of guarding

public safety and leaves open alternate means of exercising the fundamental right to bear

arms.

{¶ 28} R.C. 2923.15 prohibits the use or carrying of any firearm by a person while he

or she is under the influence of alcohol or drugs of abuse. Thus, the statute does not

prohibit the use or carrying of any firearms, but simply regulates the manner in which they

are handled. "[F]irearm controls are within the ambit of the police power." Arnold,

. "In enacting R.C. 2923.15, the General Assembly has, in the reasonable

exercise of its police powers, determined that in Ohio an intoxicated individual should not

be permitted to handle a firearm." Waterhouse,

at *4.

{¶ 29} The state possesses a strong compelling interest in maintaining public safety

and preventing gun violence. R.C. 2923.15 seeks to prevent injury or death resulting from

the discharge of a firearm by prohibiting intoxicated individuals from using or carrying a

firearm, thereby restricting firearm handling by those individuals in situations wherein

substantial harm to the public's safety and welfare will likely result. R.C. 2923.15 manifests

the General Assembly's recognition that firearms in the hands of intoxicated individuals

creates a circumstance where substantial harm could result to the public and seeks to

prevent gun violence and preserve public safety.

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{¶ 30} Our reasoning is supported by the Committee Comment to H.B. 511, which

codified RC 2923.15, which provides that "[t]he rationale for the offense is that carrying or

using firearms or dangerous ordnance without having complete control of one's faculties

presents a danger as great as driving while intoxicated." "[T]he section is also designed as

a tool to permit law enforcement officers to step in and prevent the commission of more

serious crimes, as well as tragic accidents."

{¶ 31} Applying a similar analysis, the Seventh Appellate District upheld the

constitutionality of R.C. 2923.15 under the Ohio Constitution. Upon noting that "the right

granted by Article I, Section 4 of the Ohio Constitution is not absolute and that the State, in

the reasonable exercise of its police power, may impose reasonable control over that right

in order to promote the safety and welfare of its citizens," the appellate court found that R.C.

2923.15 was "designed to guard against such tragedies such as [the accidental discharge

of a firearm by an intoxicated person resulting in the death of a friend]." Waterhouse,

at *4-5. "As such, it bears a real and substantial relation to a

legitimate government objective and is not overbroad. The danger to innocent persons is

the same whether the intoxicated person is inside his home or in a public place." Id. at *5.

{¶ 32} Accordingly, we find that the statutory limitation imposed upon an individual's

right to use or carry a firearm while under the influence of alcohol or drugs of abuse is

appropriate, reasonable, and narrowly tailored to a legitimate compelling government

interest in safety – the safety of the individual handling the firearm, the safety of nearby

persons, and the safety of police officers who encounter the intoxicated individual. The

Second Amendment right "is not a right to keep and carry any weapon whatsoever in any

manner whatsoever and for whatever purpose." Heller,

. Similarly, "the

people of our nation, and this state, cannot have unfettered discretion to do as we please

at all times. Neither the federal Bill of Rights nor this state's Bill of Rights, implicitly or

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explicitly, guarantees unlimited rights." Arnold,

.

{¶ 33} We further find that R.C. 2923.15 leaves open alternate means of exercising

the fundamental right to bear arms. Specifically, the limitation on the right to carry or use

the firearm is only temporary and only exists during the time in which the person is

intoxicated. Thus, the firearm proscription ends once the disability is over, such as when

the person sobers up before handling the firearm. Similarly, the firearm proscription never

applies when the disability is avoided, such as when the person does not drink to the point

of intoxication.

{¶ 34} Our reasoning is supported by federal court decisions that have roundly

rejected Second Amendment challenges to a federal statute that prohibits habitual drug

users from possessing firearms. In upholding the federal statute, the United States Court

of Appeals for the Seventh Circuit observed that

unlike those who have been convicted of a felony or committed to a mental institution and so face a lifetime ban, an unlawful drug user like Yancey could regain his right to possess a firearm simply by ending his drug abuse. In that sense, the restriction in [the statute] is far less onerous than those affecting felons and the mentally ill. * * * The prohibition in [the statute] bars only those persons who are current drug users from possessing a firearm[.]

(Emphasis sic.) United States v. Yancey,

(7th Cir. 2010). The court

continued, "Thus the gun ban extends only so long as Yancey abuses drugs. In that way,

Yancey himself controls his right to possess a gun; the Second Amendment, however, does

not require Congress to allow him to simultaneously choose both gun possession and drug

abuse."

. See also United States v. Dugan,

(9th Cir. 2011).

{¶ 35} In considering the same federal statute, the United States Court of Appeals

for the Fourth Circuit similarly observed that the statute "does not permanently disarm all

persons who, at any point in their lives, were unlawful drug users or addicts. Instead, it only

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applies to persons who are currently unlawful users or addicts." United States v. Carter,

(4th Cir. 2012). "By initially disarming unlawful drug users and addicts

while subsequently restoring their rights when they cease abusing drugs, Congress tailored

the prohibition to cover only the time period during which it deemed such persons to be

dangerous."

"[The statute] enables a drug user who places a high value on the right to

bear arms to regain that right by parting ways with illicit drug use."

The same logic

applies to the constitutionality of R.C. 2913.15.

{¶ 36} We therefore find that appellant has failed to show beyond a reasonable doubt

that R.C. 2923.15 is unconstitutional on its face or as applied to him under either the Ohio

or federal Constitutions. See also State v. Beyer, 5th Dist. Licking No. 12-CA-27, 2012-

Ohio-4578 (finding that Beyer's conviction of using a weapon while intoxicated under R.C.

2923.15 did not violate his Second Amendment right as applied to him because the

prohibition of using a weapon while intoxicated, even within the confines of one's private

residence, fell within the limitations of the Second Amendment).

{¶ 37} We next address appellant's argument that R.C. 2923.15 is in conflict with the

public policy declaration in R.C. 9.68.

{¶ 38} R.C. 9.68(A) provides that

The individual right to keep and bear arms, being a fundamental individual right that predates the United States Constitution and Ohio Constitution, and being a constitutionally protected right in every part of Ohio, the general assembly finds the need to provide uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, storage, carrying, sale, or other transfer of firearms, their components, and their ammunition. Except as specifically provided by the United States Constitution, Ohio Constitution, state law, or federal law, a person, without further license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.

(Emphasis added.)

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{¶ 39} R.C. 9.68 was enacted to address the "need to provide uniform laws

throughout the state" regulating ownership and possession of firearms and "the General

Assembly's concern that absent a uniform law throughout the state, law abiding gun owners

would face a confusing patchwork of licensing requirements, possession restrictions, and

criminal penalties as they travel from one jurisdiction to another." Cleveland v. State,

,

. But R.C. 9.68 does more than merely state the

need for uniformity. Ohioans for Concealed Carry, Inc. v. Clyde,

, 2008-

Ohio-4605, ¶ 20. While recognizing the right to keep and bear arms as a "fundamental

individual right" and "a constitutionally protected right in every part of Ohio," the statute

plainly allows the state to regulate certain aspects of firearm ownership, transfer,

possession, transporting, or use by providing that a person may own, possess, or keep any

firearm "[e]xcept as specifically provided by * * * state law, or federal law[.]" "Simply put,

the General Assembly, by enacting R.C. 9.68(A), gave persons in Ohio the right to carry a

handgun unless federal or state law prohibits them from doing so."

. Thus,

pursuant to R.C. 9.68, "federal or state regulations can limit an Ohioan's individual right to

bear arms." Cleveland at ¶ 1. R.C. 2923.15 is such a state law. R.C. 9.68, therefore,

affords no protection to appellant from conviction for carrying a shotgun while intoxicated.

{¶ 40} Finally, we address appellant's argument that R.C. 2923.15 is in conflict with

the castle doctrine. Appellant asserts that under R.C. 2923.15, an intoxicated person, while

in his home, would never be able to use a firearm to defend himself or his family.

{¶ 41} R.C. 2901.09(B) "codifies a form of self-defense as the castle doctrine" and

states that "a person who lawfully is in that person's residence has no duty to retreat before

using force in self-defense, defense of another, or defense of that person's residence[.]"

State v. Barnette, 12th Dist. Butler No. CA2012-05-099,

. Similarly,

R.C. 2901.05(B)(1) provides that a defendant is entitled to a presumption of "self-defense

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or defense of another" if the evidence shows that the defendant used defensive force

against another person who was "in the process of unlawfully and without privilege to do so

entering, or ha[d] unlawfully and without privilege to do so entered" the defendant's

residence or vehicle.

{¶ 42} Nothing in R.C. 2923.15 circumscribes the availability of the castle doctrine.

The castle doctrine simply creates a presumption that the defendant acted in self-defense

when he or she uses deadly force against a person who has entered or is entering the

defendant's home or vehicle without privilege to do so. The doctrine remains available to

an intoxicated person using defensive force with a firearm in defending himself or another

in his residence or vehicle. Whether such would violate R.C. 2923.15 is a different matter

and is no different than when a defendant under disability exercises his rights under the

castle doctrine. R.C. 2923.15 therefore does not conflict with the castle doctrine.

{¶ 43} In light of the foregoing, we find that appellant's conviction is not contrary to

law and that R.C. 2923.15 does not violate the Ohio or federal Constitutions.

{¶ 44} Appellant's two assignments of error are overruled.

{¶ 45} Judgment affirmed.

S. POWELL, P. J., and PIPER, J., concur.

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