State v. Ware ( 2024 )

[Cite as State v. Ware, 2024-Ohio-4655.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-240097
TRIAL NO. B-2302106
Plaintiff-Appellee, :
vs. :
O P I N I O N.
DANTE WARE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Vacated in Part, and Cause Remanded
Date of Judgment Entry on Appeal: September 25, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Norbert Wessels,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. McKenna, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Following a no-contest plea, Dante Ware was convicted of having a
weapon while under a disability under R.C. 2923.13(A)(3) for possessing a gun. Ware
now appeals, and in two assignments of error, he argues that the evidence was
insufficient to support the conviction, and he contends that the trial court erred by
denying his motion to dismiss the charge because the weapon-under-disability statute
unconstitutionally deprives Ware of his constitutional right to bear arms under New
York State Rifle and Pistol Assn. v. Bruen, 597 U.S. 1 (2022). For the reasons
discussed below, we affirm the judgment in part, vacate the judgment in part, and
remand the cause to the trial court for further proceedings consistent with this
opinion.
Factual Background
{¶2} Ware was indicted for carrying a concealed weapon, improper handling
of a firearm in a motor vehicle, and having a weapon while under a disability. Ware
filed a motion to dismiss the charges alleging that his juvenile adjudication did not
create a disability. In 2012, Ware was adjudicated delinquent for conveyance of drugs
in a detention facility, a felony of the third degree if committed by an adult, in violation
of R.C. 2921.36. Ware admitted to having marijuana on his person when he was
arrested and placed in detention. The marijuana was discovered during his admission
to the detention facility.
{¶3} In the alternative, Ware argued that applying the having-a-weapon-
while-under-a-disability statute to him violates his fundamental right to bear arms.
After the trial court overruled his motion to dismiss, Ware entered into a plea
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OHIO FIRST DISTRICT COURT OF APPEALS
agreement with the state whereby he pled no contest to the having-a-weapon-while-
under-a-disability charge, and the state dismissed the other two charges.
{¶4} For ease of discussion, we will address the assignments of error out of
order.
Disqualifying Drug Offense
{¶5} In his second assignment of error, Ware contends that the evidence was
insufficient to support the conviction because his juvenile adjudication did not create
a disability.
{¶6} In reviewing a challenge to the sufficiency of the evidence, a reviewing
court must determine whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of
the crime had been proved beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d
259 (1991), paragraph two of the syllabus.
{¶7} Under R.C. 2923.13(A)(3), a person is unable to possess a firearm if that
person “has been adjudicated a delinquent child for the commission of an offense that,
if committed by an adult, would have been a felony offense involving the illegal
possession, use, sale, administration, distribution, or trafficking in any drug of abuse.”
{¶8} Ware was adjudicated a delinquent child for the commission of illegal
conveyance of drugs in a detention facility, an offense that, if committed by an adult,
would have been a felony of the third degree. The offense involved the possession of
marijuana that was discovered when he was admitted into a detention facility. Under
the plain language of R.C. 2923.13(A)(3), Ware is unable to possess a firearm because
his adjudication would have been a felony offense, if committed by an adult, involving
the possession of marijuana.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} Ware argues that R.C. 2923.13(A)(3) does not apply to Ware because
the statute requires an adjudication involving a “drug abuse offense.” R.C.
2923.13(A)(3) defines a “drug abuse offense” as:
A violation of division (A) of section 2913.02 [theft] that
constitutes theft of drugs, or a violation of section 2925.02 [corrupting
another with drugs], 2925.03 [trafficking], 2925.04 [illegal
manufacture of drugs], 2925.041 [illegal assembly or possession of
chemicals for manufacture of drugs], 2925.05 [funding, aggravated
funding of drug or marihuana trafficking], 2925.06 [illegal
administration or distribution of anabolic steroids], 2925.11 [possession
of controlled substances], 2925.12 [possessing drug abuse instruments],
2925.13 [permitting drug abuse], 2925.22 [deception to obtain a
dangerous drug], 2925.23 [illegal processing of drug documents],
2925.24 [tampering with drugs], 2925.31 [abusing harmful
intoxicants], 2925.32 [trafficking in harmful intoxicants], 2925.36
[illegal dispensing of drug samples], or 2925.37 [counterfeit controlled
substance offenses] of the Revised Code[.]
{¶10} While it is true that Ware was not adjudicated of a “drug abuse offense,”
R.C. 2923.13(A)(3) does not require an adjudication for a “drug abuse offense.” The
statute applies to an “offense involving the illegal possession, use, sale, administration,
distribution, or trafficking in any drug of abuse.” R.C. 2925.01(B) provides that “drug
of abuse” has the same meaning as in R.C. 3719.011, which, in relevant part, defines
“drug of abuse” as “any controlled substance as defined in section 3719.01.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} A “‘controlled substance’ means a drug, compound, mixture,
preparation, or substance included in schedule I, II, III, IV, or V.” R.C. 3719.01(C).
The schedules of controlled substances are established “under the federal drug abuse
control laws.” R.C. 3719.41. Marijuana “is a Schedule I controlled substance, as are
hallucinogenics containing cannibinoids, THC, and synthetics or derivatives thereof.”
State v. Donoho, 2018-Ohio-4950, ¶ 14 (11th Dist); State v. Reeder, 2021-Ohio-4558,
¶ 33 (3d Dist.) (Marijuana is a chemical compound listed as a Schedule I controlled
substance.); 21 U.S.C. 812 (classifying marijuana as a Schedule I controlled substance).
Thus, Ware was adjudicated delinquent for an offense involving a “drug of abuse.”
Under the plain language of the statute, Ware’s argument fails.
{¶12} Accordingly, we overrule the second assignment of error.
Constitutionality of R.C. 2923.13(A)
{¶13} In his first assignment of error, Ward contends that the trial court erred
by denying the motion to dismiss the charge because the blanket ban on possession of
a firearm in R.C. 2923.13(A) violates the Second Amendment.
{¶14} Next, Ward contends that the having-a-weapon-while-under-a-
disability statute is unconstitutional, both facially and as applied to him, because “the
state should be prohibited from criminalizing the legal possession of a firearm based
upon a prior juvenile adjudication.” He further asserts, relying on a decision by
another trial court and United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), that the
statute “is not consistent with the Nation’s historical tradition of firearm regulation.”
However, Rahimi has since been reversed by the Supreme Court. See United States v.
Rahimi, __ U.S. __, 144 S.Ct. 1889 (2024).
{¶15} Consequently, we vacate the judgment of the trial court and remand the
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OHIO FIRST DISTRICT COURT OF APPEALS
cause to the trial court so the parties and the court can reconsider the constitutionality
of the statute in light of United States v. Rahimi, __ U.S. __, 144 S.Ct. 1889 (2024).
See, e.g., Antonyuk v. James, 144 S.Ct. 2709 (2024) (United States Supreme Court
vacating the judgment and remanding the case for further consideration in light of
Rahimi).
Judgment affirmed in part, vacated in part, and cause remanded.
BOCK, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry this date.
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