COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69789 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JOHN WYNDER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JULY 25, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-325767 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. STUART H. LIPPE, ESQ. Cuyahoga County Prosecutor 930 Leader Building JOHN F. CORRIGAN, ESQ. Cleveland, Ohio 44114 Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- -3- PATRICIA ANN BLACKMON, P.J.: Defendant-appellant, John Wynder appeals a decision of the trial court convicting him of carrying a concealed weapon and sentencing him accordingly. Wynder assigns the following error for our review: THE TRIAL COURT ERRED IN FINDING DEFENDANT GUILTY OF CARRYING A CONCEALED WEAPON. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On July 12, 1995, Cleveland police officers responded to an anonymous call, which reported the operation of a gambling house. Two plain-clothes officers went to the house and observed people going in and out of the house carrying styrofoam cups and beer cans. The officers walked along the side of the house and heard voices saying things like "Place your bets." The officers contacted their dispatcher, advised that they were at the scene of a suspected gambling house and asked for assistance. As the officers approached the door, a woman yelled "Police!" The officers entered the home and saw the occupants running to various areas of the house. Officer Simms followed Wynder and an unidentified woman as they ran into the kitchen. Once inside the kitchen, Officer Simms saw Wynder pull a gun out of his pocket and throw it behind the refrigerator. Simms handcuffed Wynder. He retrieved a .25 caliber pistol along with a clip containing six bullets and twelve live rounds of ammunition. A subsequent search -4- of the home revealed various types of alcohol, cartons of cigarettes, unopened decks of cards and another gun hidden in one of the kitchen cabinets. Wynder was arrested and charged with carrying a concealed weapon. At trial, Officer Simms described his version of the events. Wynder testified that he had invited several friends over to help him renovate the house. He said he was unaware of any gambling at his home and described the card games as "friendly." He denied ever having possession of the gun. He testified the gun was on top of the refrigerator in the kitchen. According to Wynder, when Officer Simms entered the kitchen, he bumped into the refrigerator and caused the gun to fall off. Wynder stated he reached out in an unsuccessful attempt to catch the gun before it hit the floor. A ballistics test conducted during the trial ruled that the .25 caliber gun was inoperable. Wynder was convicted of carrying a concealed weapon and sentenced to six months in jail and a $1000 fine. The jail time and fine were suspended. Wynder was placed on two years probation and ordered to perform 40 hours of community service, to pay court costs and a $200 probation supervision fee, and to attend a carrying concealed weapon education program. This appeal followed. The sole issue for determination in this case is whether the trial court erred in convicting Wynder. Wynder argues the state failed to prove he was operating a gambling house. The gist of his -5- argument seems to be that he had a legitimate reason for carrying a gun and the state failed to prove otherwise. Notwithstanding Wynder's arguments to the contrary, the state had no duty to prove he was conducting a gambling house. In order to prove carrying a concealed weapon, the state only had to prove that Wynder knowingly carried or had, "concealed on his person or concealed ready at hand, any deadly weapon or dangerous ordnance." In this case, the state presented evidence that Wynder had a handgun along with ammunition concealed in his pocket. R.C. 2923.12(C)(3) provides that it is an affirmative defense to a charge of carrying a concealed weapon that the weapon was carried or kept ready at hand by the actor for any lawful purpose and while in his own home. R.C. 2901.05(C) provides an affirmative defense is either a defense expressly designated as affirmative or a defense involving an excuse or justification peculiarly within the knowledge of the accused, on which he can fairly be required to adduce supporting evidence. See State v. Rogers (1975), 43 Ohio St.2d 28. An affirmative defense involves an allegation of excuse or justification which places the burden upon the accused to go forward with evidence to prove the issue by a preponderance of the evidence. See Id. In order to prove his affirmative defense, Wynder had to prove that he was in his home and that the weapon was carried or kept ready for a lawful purpose. The evidence is clear that Wynder was in his home at the time the gun was seized by police. However, Wynder failed to advance any lawful purpose for having the -6- concealed gun. Though he continually denied operating a gambling house, Wynder never produced evidence of any lawful purpose for having the gun. In light of the state's production of evidence of each element of carrying a concealed weapon and Wynder's failure to present evidence of an affirmative defense, we find the trial court did not err in convicting Wynder of carrying a concealed weapon. -7- 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 Common Pleas Court 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. NAHRA, J., and PATTON, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE 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 journaliza- .