Second chance for rape victim's affirmative defense plea??

October 3, 2003
Concealed weapon case sent back to Common Pleas court

An Ohio State Supreme Court ruling on the carrying of concealed weapons sent a local case that was in the Third District Court of Appeals back to the Seneca County Court of Common Pleas this week.

After Judge Michael P. Kelbley ruled that the current law was unconstitutional in the case of a Fostoria woman, County Prosecutor Ken Egbert Jr. filed an appeal on behalf of the state. Kathryn J. Howard, 28, 1208D Peeler Drive, Fostoria, is facing one count of carrying a concealed weapon stemming from a June 2002 traffic stop in Fostoria where a 9mm pistol was allegedly found under her seat.

Reports say that Howard was a passenger in a car June 20, 2002, when the driver was pulled over and cited for driving while under the influence. A state trooper then allegedly found the weapon beneath her seat while conducting a routine search of the car.

Howard claimed that the gun was a means of self-defense because she had been sexually assaulted in the past, according to court documents.

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Using an "affirmative defense" argument to appeal the case - an argument that suggested that Howard might fear a criminal attack and was using the weapon for defensive purposes - attorney Mark Klepatz succeeded in convincing the Seneca County Court of Common Pleas that the law was unconstitutional.

Egbert appealed the case on behalf of the state but the decision was upheld in the Third District Court of Appeals.

The case had been awaiting the Ohio Supreme Court decision involving a Hamilton County concealed weapons case which was struck down earlier this week.

"It's the legislature's decision on whether or not it wants to change the law. The appeal was ... to ensure the existing law was recognized," Egbert said.

Egbert said this should send a signal to the legislature that they need to address this issue.

"Legislatures, not judges, make or change the law," Egbert said.

Kelbley responded that although he disagreed, he was bound to defer to the higher court.

"My job is to follow the law. In my opinion, it is unconstitutional, but I am bound to follow the decision," Kelbley said.

John Kahler II, the attorney who handled the appeal for Howard, said the decision of the lower court was that it had to follow suit with the higher court.

"Obviously, I was disappointed. I believe Judge Kelbley issued a sound argument for why the CCW [carrying a concealed weapon] law should be found unconstitutional," Kahler said.

The case now will be heard in the Seneca County Court of Common Pleas by Judge Kelbley.

Click here to read the entire story in the Tiffin Advertiser-Tribune.

Related Story:
Supremes uphold affirmative defense law; law immediately fails Seneca Co. woman