COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61100 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION JESSE GIBBS : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 6, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-255,196 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES, Prosecutor LINDSAY JERRY, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: HYMAN FRIEDMAN, Public Defender BETTY TANKERSLEY, Assistant The Marion Building, Room 307 1276 West Third Street Cleveland, Ohio 44113-1569 - 1 - FRANCIS E. SWEENEY, P.J.: Defendant-appellant, Jesse Gibbs, timely appeals the jury finding that appellant was guilty of carrying a concealed weapon (R.C. 2923.12) and illegal possession of a firearm in liquor permit premises (R.C. 2923.121). For the reasons set forth below, we affirm the judgment of the trial court. ASSIGNMENT OF ERROR I JESSE GIBBS WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF CARRYING A CONCEALED WEAPON AND POSSESSION OF A FIREARM IN A LIQUOR PERMIT PREMISES ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE CONVICTION. Appellant contends that he proved by a preponderance of the evidence the affirmative defense of justification set forth in R.C. 2923.12(C)(1) and R.C. 2923.121(C)(1) and, therefore, the jury's verdict was against the manifest weight of the evidence. This argument is without merit. These two statutes contain substantively identical affirma- tive defenses in subsections (C)(1): It is an affirmative defense to a charge under this section of illegal possession of a firearm in liquor permit premises [of carry- ing or having control of a weapon other than dangerous ordnance], that the actor was not otherwise prohibited by law from having the - 2 - firearm, and that any of the following apply: (1) The firearm was carried or kept ready at hand by the act or for defen- sive purposes, while he was engaged in or was going to or from his lawful business or occupation, which business or occupation was of such character or was necessarily carried on in such man- ner or at such a time or place as to render the actor particularly suscep- tible to criminal attack, such as would justify a prudent man in going armed. R.C. 2923.121(C)(1); [R.C. 2923.12(C)(1)]. The burden of proof is on the defendant to prove this claim by a preponderance of the evidence. R.C. 2901.05. To qualify for each of the affirmative defenses, the actor must be engaged in a lawful business or activity. Id. At trial, the appellant and his partner testified that the appellant was co-owner of the Paradise Island Lounge at 356 Eddy Road, Cleveland. On February 27, 1990, police officers entered the bar while he was waiting on customers. Appellant testified that he carried a firearm in the Lounge because the Lounge was located in an area of high crime. Appellant argued that as the owner of the Lounge, he was particularly susceptible to criminal attack. Therefore, he maintained that he was justified in pos- sessing the gun. Detective O'Bryant, an undercover narcotics detective, tes- tified that Cleveland police officers, pursuant to executing a search warrant, entered the Paradise Island Lounge on February 27, 1990. The search warrant resulted from many citizen - 3 - complaints of drug activity in and around the Lounge for several months. Detective O'Bryant testified he had seen heavy drug activity in the Lounge parking lot while investigating that location. In addition, Detective O'Bryant made two drug pur- chases from the manager of the Lounge, Mr. Seals, during the month of February, 1990. Other police officers, Mr. Seals himself, and the appellant all told Detective O'Bryant that Mr. Seals was the manager. During the search, fourteen rocks of cocaine were found behind the bar where Mr. Seals was standing. Patrolman Grooms testified that the appellant was in the Lounge at the end of the bar during the search and that a loaded .38 revolver was found on his person. The state argued that appel- lant, as owner of the Lounge, could not qualify for the affirma- tive defense since he was involved in or approved of the illegal drug sales made by the manager of the Lounge. Based on the above testimony, we find competent, credible evidence exists that the appellant was involved in an illegal drug operation. Even if the illegal activity did not constitute the principal nature of appellant's business, the jury could still find that what appellant was doing did not qualify as a lawful business or occupation. State v. Pickett (Aug. 15, 1985), Cuyahoga App. Nos. 49444, 49479, 49480, 49481 and 49482, unre- ported. Therefore, sufficient evidence existed to support the jury's finding that appellant was guilty of carrying a concealed weapon (R.C. 2923.12) and illegal possession of a firearm in - 4 - liquor permit premises (R.C. 2923.121) and the jury's finding that he had not proven by a preponderance of the evidence that he was justified in possessing the gun. Assignment of Error I is overruled. Judgment affirmed. - 5 - 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 Cuyahoga County 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. JOHN F. CORRIGAN, J. KRUPANSKY, J. CONCUR PRESIDING JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .