COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61063 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION CARL C. NEWMAN : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : AUGUST 20, 1992 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-246370 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES ANTHONY J. VEGH, ESQ. CUYAHOGA COUNTY PROSECUTOR 17747 Chillicothe Road FRANK C. GASPER, ASST. Suite 203B Justice Center - 8th Floor Chagrin Falls, Ohio 44022 1200 Ontario Street Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, J., Defendant Carl Newman appeals from his conviction for carrying a concealed weapon in violation of R.C. 2923.12. For the reasons set forth below, we affirm. I. On February 8, 1990, defendant was indicted for one count of carrying a concealed weapon. He pleaded not guilty and the matter proceeded to a bench trial on October 23, 1990. The state presented the testimony of Clem Jones and Cleveland Police Officer Alan Chonko. Jones testified that on November 8, 1989, he was working as a security officer at Pick-N-Pay at 11401 Buckeye Road in Cleveland. At approximately 5:00 p.m., he observed defendant enter the store and walk around, without a cart or basket, for approximately eight minutes. Jones further observed a bulge beneath defendant's left arm which Jones identified as a weapon. Jones then stopped defendant and asked if he had proper authority to possess a gun and defendant indicated that he carried it for safety. Jones confiscated the weapon and determined that it was a .22 caliber automatic, with one round in the chamber and eleven additional rounds in the clip. Jones then called the Cleveland Police. - 3 - On cross-examination, Jones admitted that defendant did not threaten anyone in the store, and that the store had been robbed four times in 1989. Patrolman Chonko testified that he responded to a call from the security officer at Pick-N-Pay. He subsequently arrested defendant and seized defendant's gun, ammunition, and holster. According to Chonko, defendant waived his Miranda rights and stated that he carried the weapon because it was a "bad neighborhood." On cross-examination, Chonko acknowledged that the area was crime-ridden with "its fair share" of assaults and a relatively high number of weapons. Defendant proceeded with his case in order to establish a defense to the charge pursuant to R.C. 2923.12(C)(2), and testified that he carried the registered weapon for his personal safety. He further stated that in February 1990, several months after the incident at issue, he was the victim of an armed robbery and felonious assault, and that he lives in fear of criminal attack because the area is a high crime area. Defendant also explained that he went to the Pick-N-Pay to find a friend who was on leave from the Navy. Defendant admitted on cross-examination, however, that he went to the store voluntarily to find a friend who was on leave from the Navy. Defendant further acknowledged that while the store was not actually dangerous, he nonetheless believed that he - 4 - was subject to criminal attack, although he felt somewhat safe due to Jone's presence in the store. The trial court subsequently found defendant guilty and defendant now appeals. II. In his sole assignment of error, defendant asserts that the trial court erred in convicting him of carrying a concealed weapon because he established an affirmative defense to this charge pursuant to R.C. 2923.12(C)(2). Carrying or having a concealed weapon or dangerous ordnance is proscribed by R.C. 2923.12(A). R.C. 2923.12(C), however, sets forth affirmative defenses to this charge which include the following: "(2) The weapon was carried or kept ready at hand by the actor for defensive purposes, while he was engaged in a lawful activity, and had reasonable cause to fear a criminal attack upon himself or a member of his family, or upon his home, such as would justify a prudent man in going armed." In order to establish this affirmative defense, the defendant must prove, by a preponderance of the evidence that: (1) he was engaged in a lawful activity, and (2) the circumstances in which he was placed were such as would justify a prudent man in carrying a weapon for defensive purposes. See State v. Hall (1964), 6 Ohio App. 2d 114, 115; R.C. 2901.051(A). Finally, in State v. Bacon (Jan. 26, 1989), Cuyahoga App. 54812, unreported, this court determined that one's voluntary - 5 - presence in a "bad area" does not justify carrying a concealed weapon. The court stated: "It is recognized that the pertinent section of town is less than a quiet, peaceful neighborhood, and that crime is no stranger to its inhabitants. Nevertheless, appellant had no more cause to fear, nor was he more susceptible to, criminal attack at the time immediately preceding his arrest than any other person in the area. The statutory affirmative defense does not allow all persons who voluntarily place themselves in a bad neighborhood to carry firearms. "Thus, while it might be true that appellant was going from his "lawful business," R.C. 2923.12(C)(1), and it cannot be said with any great certainty that appellant and a reputed prostitute 'Lisa' were engaged in some pursuit less than a 'lawful activity,' R.C. 2923.12(C)(2), we find nevertheless that the trial court properly discounted the proposed affirmative defense since appellant was in no way 'particularly susceptible to criminal attack' at the time of his arrest." Id. at 6-7. Likewise, in this case, the record reveals that although the area was not crime-free, defendant voluntarily placed himself in the grocery store in order to find his friend, and that he was not, by his own admission, particularly susceptible to criminal attack at that location. Accordingly, we cannot conclude that the trial court erred in discrediting the proposed affirmative defense and convicting defendant of this offense. Judgment affirmed. - 6 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANCIS E. SWEENEY, P.J., and LEO M. SPELLACY, J., CONCUR. JUDGE JOHN F. CORRIGAN N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .