State v. Johnson

[Cite as State v. Johnson, 2019-Ohio-5386.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-19-47
v.
AARON R. JOHNSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR 2018 0531
Judgment Affirmed
Date of Decision: December 30, 2019
APPEARANCES:
Kenneth J. Rexford for Appellant
Jana E. Emerick for Appellee
Case No. 1-19-47
SHAW, J.
{¶1} Defendant-appellant, Aaron Johnson (“Johnson”), brings this appeal
from the July 29, 2019, judgment of the Allen County Common Pleas Court
sentencing him to an aggregate 42-month prison term after he plead no contest to,
and was convicted of, Having Weapons While Under Disability in violation of R.C.
2923.13(A)(2), a felony of the third degree, Possession of a Fentanyl-Related
Compound in violation of R.C. 2925.11(A), a felony of the fifth degree, Possession
of Cocaine in violation of R.C. 2925.11(A), a felony of the fifth degree, and
Possession of Heroin in violation of R.C. 2925.11(A), a felony of the fifth degree.
On appeal, Johnson argues that the charge of Having Weapons While Under
Disability was unconstitutional under the Second Amendment to the United States
Constitution and Article I, Section 4, of the Ohio Constitution, that the trial court
should have dismissed the Having Weapons While Under Disability charge because
the juvenile adjudication for Burglary leading to the disability was not actually an
offense of violence even though the Ohio Revised Code classified it as one, and that
the trial court should have suppressed the interrogation of Johnson.
Background
{¶2} On February 14, 2019, Johnson was indicted for Having Weapons
While Under Disability in violation of R.C. 2923.13(A)(2), a felony of the third
degree, Possession of a Fentanyl-Related Compound in violation of R.C.
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2925.11(A), a felony of the fifth degree, Possession of Cocaine in violation of R.C.
2925.11(A), a felony of the fifth degree, and Possession of Heroin in violation of
R.C. 2925.11(A), a felony of the fifth degree. The Having Weapons While Under
Disability charge alleged that Johnson knowingly had a firearm when he had been
previously adjudicated a delinquent child for the commission of an offense that, if
committed by an adult, would have been a felony offense of violence, specifically
Burglary. Johnson originally pled not guilty to the charges.
{¶3} On March 15, 2019, Johnson filed a motion to dismiss the Having
Weapons While Under Disability charge, arguing that it was unconstitutional in
violation of the Second Amendment right to bear arms in the United States
Constitution, and the corresponding right to bear arms in Article I, Section 4, of the
Ohio Constitution. Johnson recognized that in State v. Carnes, 154 Ohio St.3d 527,
2018-Ohio-3256, the Supreme Court of Ohio had recently determined that charging
a person with Having Weapons While Under Disability under R.C. 2923.13(A)(2)
was not an unconstitutional violation of due process for using a juvenile
adjudication of delinquency for an offense that would be a felony offense of
violence if committed by an adult as the predicate disability; however, Johnson
noted that in Carnes the Supreme Court of Ohio specifically declined to address
whether the same charge would violate the Second Amendment because the
argument was not raised in the lower courts. Carnes at ¶ 20.
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{¶4} Here, Johnson challenged the constitutionality of R.C. 2923.13(A)(2)
under the Second Amendment where the predicate disability was a delinquency
adjudication for commission of an offense that, if committed by an adult, would
have been a felony offense of violence. Johnson argued that R.C. 2923.13(A)(2)
exceeded the scope of the legislature’s authority and placed an unreasonable
limitation upon the Second Amendment and Article I, Section 4, of the Ohio
Constitution.1
{¶5} In addition to his specific constitutional argument, Johnson argued in
his motion to dismiss that his prior juvenile adjudication for Burglary, which the
legislature categorized as an offense of violence under R.C. 2901.01(A)(9)(a), was
improperly deemed an offense of “violence.” He argued that a Burglary could be
accomplished without violence, and thus it was improper to include it with other
violent offenses and prevent Johnson from exercising his right to bear arms as an
adult.
{¶6} On March 21, 2019, Johnson also filed a motion to suppress the
custodial interrogation conducted of him on December 18, 2018. He argued that a
recording of the interrogation demonstrated that there were questions asked to him
1
Johnson attached an amicus brief that had been filed in the Carnes case to his motion to dismiss. The
amicus brief, written by the Buckeye Firearms Association, contended that though the issue was not raised
below in Carnes, the Supreme Court of Ohio should address the Second Amendment and that the Supreme
Court of Ohio should determine that because a juvenile adjudication is not a “crime” it should not be treated
as one. Therefore, the Buckeye Firearms Association contended that since the juvenile had not actually been
convicted of a “violent felony,” removing his right to bear arms was in violation of the United States
Constitution and the Ohio Constitution.
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about his drug use before any Miranda warnings were given, and that the Miranda
warnings were inadequate because Johnson was not notified of his right to consult
with an attorney.
{¶7} On April 11, 2019, the State filed a response to Johnson’s motion to
dismiss. The State argued that District of Columbia v. Heller, 554 U.S. 570, 128
S.Ct. 2783 (2008), which Johnson primarily relied upon in his motion to dismiss,
specifically states that the rights secured by the Second Amendment were not
absolute. The State argued that, according to Heller, the core protection of the
Second Amendment right was for “law-abiding, responsible citizens to use arms in
defense of hearth and home.” Heller at 635, 2821. The State contended that it was
reasonable for the Ohio legislature to remove individuals adjudicated as delinquent
for crimes that would have been felony offenses of violence if committed by an
adult from the class of “law-abiding, responsible citizens.”
{¶8} Moreover, the State argued that statutes are given a strong
presumption of constitutionality, that this statute was narrowly tailored to meet
government interests, and that a person such as Johnson was not even permanently
prohibited from owning a firearm. Johnson had the ability to apply to have his rights
restored under R.C. 2923.14. Finally, the State argued that Johnson’s contention
that Burglary should not be an “offense of violence” was irrelevant in this matter
because the legislature had specifically categorized it as such.
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{¶9} On April 26, 2019, the trial court filed an entry denying Johnson’s
motion to dismiss the Having Weapons While Under Disability charge. The trial
court stated that the Second Amendment right was not unlimited and that it was
surrendered when an individual engaged in a felony. The trial court found that the
Supreme Court of Ohio determined in Carnes that a charge such as the one in this
case did not violate due process and the trial court saw no reason the holding should
not be extended to another constitutional provision.
{¶10} On May 20, 2019, a suppression hearing was held. At the beginning
of the hearing, the trial court noted that the State actually never filed a response to
Johnson’s suppression motion. Nevertheless, the hearing proceeded with the State
stipulating that Johnson was in custody at the time of the interrogation. The State
also indicated that it did not intend to introduce any statements into evidence at trial
that were elicited in the interrogation video prior to Miranda warnings.
Notwithstanding the State’s concession, the State argued that the questions asked
prior to the Miranda warnings in the interrogation were merely routine booking
questions and should have been admissible if the State had chosen to introduce
them. In addition, the State argued that the actual Miranda warnings given in this
case were sufficient, contrary to Johnson’s claims. A video of the entire
interrogation was introduced into evidence at the suppression hearing.
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{¶11} On May 23, 2019, the trial court filed a judgment entry denying
Johnson’s suppression motion. The trial court determined that before Johnson was
admonished pursuant to Miranda, Johnson was “merely asked some personal
history and background questions.” (Doc. No. 36). The trial court reasoned that
Miranda did not apply to routine booking questions. (Id.) citing State v. Hale, 119
Ohio St.3d 118, 2008-Ohio-3426, ¶ 32. Further, the trial court found that the
officers did not confront Johnson with any of his pre-Miranda warning statements,
and that the evidence did not show that police actions were coercive, or that police
were trying to “bait” him into talking. (Id.) citing State v. Farris, 109 Ohio St.3d
519, 2006-Ohio-3255, ¶ 31.
{¶12} As to the adequacy of the Miranda warnings, the trial court found that,
contrary to Johnson’s claim, the police explained that Johnson did not have to talk
to the police without an attorney present and that they could wait until an attorney
was present. The trial court stated that Johnson was primarily concerned with the
fact that the warnings did not come in Johnson’s “preferred language”; however, the
trial court determined that a deficiency in the Miranda admonishments did not exist
here. The trial court further found that there was no indication that Johnson’s will
was overborne or that there was police coercion in this matter. (Doc. No. 36) citing
State v. Smith, 3d Dist. Allen No. 1-17-50, 2018-Ohio-1444, ¶¶ 15-22.
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{¶13} After the denial of his motion to dismiss and the denial of his
suppression motion, Johnson entered into a written negotiated plea agreement.
Pursuant to the agreement, Johnson would plead no contest to all four counts in the
indictment, and the State would be heard at sentencing. In addition, the agreement
also stated that an appellate bond would be granted in the amount of $75,000. The
written plea agreement plea was signed by Johnson, his attorney, the State, and the
trial court.2
{¶14} On July 29, 2019, the case proceeded to sentencing. Johnson was
ordered to serve 30 months in prison on the Having Weapons While Under
Disability conviction and 12 months in prison on each of the three drug possession
crimes. The prison terms for the drug possession crimes were ordered to be served
concurrently with each other, but consecutive to the prison term for the Having
Weapons While Under Disability charge for an aggregate 42-month prison term. A
judgment entry memorializing Johnson’s sentence was filed that same day. It is
from this judgment that Johnson appeals, asserting the following assignments of
error for our review.
Assignment of Error No. 1
The Trial Court should have dismissed Count I because R.C.
§2923.13(A)(2) is unconstitutional, in violation of the United
2
The record indicates that a change-of-plea hearing was held June 17, 2019; however, no transcript of that
hearing was produced. An entry filed by the trial court on June 18, 2019, stated that a Criminal Rule 11
dialogue occurred at the hearing, that it was determined Johnson entered his no contest pleas knowingly,
intelligently, and voluntarily, and that the pleas were accepted. Johnson was convicted of all four charges at
that time.
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States Constitution (the Second and Fourteenth Amendments
thereto) and Article I, Section 4, of the Ohio Constitution.
Assignment of Error No. 2
The Trial Court should have dismissed Count I because the
offense for which Mr. Johnson was adjudicated delinquent does
not even create a disability statutorily.
Assignment of Error No. 3
The Trial Court should have suppressed the interrogation of the
Defendant conducted December 18, 2018, because the custodial
interrogation started with intentionally-elicited inculpatory
answers as to Mr. Johnson’s drug use, with the inducing questions
presented to Mr. Johnson before Miranda warnings.
Assignment of Error No. 4
The Trial Court should have suppressed the interrogation of the
Defendant conducted December 18, 2018, because the warnings
provided were inadequate.
First Assignment of Error
{¶15} In Johnson’s first assignment of error, he argues that the trial court
erred by overruling his motion to dismiss the Having Weapons While Under
Disability charge against him. Specifically, he argues that the charge, predicated on
a juvenile adjudication of delinquency for Burglary, was unconstitutional under the
constitutions of the United States and Ohio.
Law Governing Constitutional Challenges to Statutes
{¶16} Statutes enacted by the General Assembly are entitled to a “strong
presumption of constitutionality.” State v. Romage, 138 Ohio St.3d 390, 2014-
Ohio-783, ¶ 7; R.C. 1.47. “[I]f at all possible, statutes must be construed in
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conformity with the Ohio and United States Constitutions.” State v. Collier, 62
Ohio St.3d 267, 269 (1991).
{¶17} In order to find a statute unconstitutional, we must determine beyond
a reasonable doubt that the legislation and constitutional provisions are clearly
incompatible. State v. Noling, 149 Ohio St.3d 327, 2016-Ohio-8252, ¶ 10. “
‘[D]oubts regarding the validity of a legislative enactment are to be resolved in favor
of the statute.’ ” Id. quoting State v. Smith, 80 Ohio St.3d 89, 99-100 (1997), citing
State v. Gill, 63 Ohio St.3d 53, 55 (1992).
{¶18} A statute may be challenged as unconstitutional on the basis that it is
invalid on its face or as applied to a particular set of facts. State v. Lowe, 112 Ohio
St.3d 507, 2007-Ohio-606, ¶ 17. “Facial challenges present a higher hurdle than as-
applied challenges because, in general, for a statute to be facially unconstitutional,
it must be unconstitutional in all applications.” Romage, at ¶ 7. Under a facial
challenge, it must be shown that there is no set of facts under which the statute would
be valid. Id.{¶19} In an as-applied challenge, the challenger “ ‘contends that application
of the statute in the particular context in which he has acted, or in which he proposes
to act, [is] unconstitutional.’ ” Lowe at ¶ 17, quoting Ada v. Guam Soc. Of
Obstetricians & Gynecologists, 506 U.S. 1011, 113 S.Ct. 633 (1992) (Scalia, J.,
dissenting). The practical impact of holding that a statute is unconstitutional as
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applied to the challenger is to prevent its future application in a similar context, “
‘but not to render it utterly inoperative.’ ” Yajnik v. Akron Dept. of Health, Hous.
Div., 101 Ohio St.3d 106, 2004-Ohio-357, quoting Ada, 506 U.S. 1011 (Scalia, J.
dissenting). “[W]here statutes are challenged on the ground that they are
unconstitutional as applied to a particular set of facts, the party making the challenge
bears the burden of presenting clear and convincing evidence of a presently existing
set of facts that make the statutes unconstitutional and void when applied to those
facts.” Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, ¶ 38 (2005).
Standard of Scrutiny
{¶20} The Supreme Court of the United States did not establish the
appropriate level of scrutiny to be applied to restrictions to the right to bear arms
under the Second Amendment in Heller; however, the Supreme Court did reject the
rational-basis test as well as an “interest-balancing” standard, finding that both were
not appropriate.
{¶21} Since the Heller decision, a number of Ohio Appellate Courts have
applied an intermediate level of scrutiny to Second Amendment challenges. See
State v. Henderson, 11th Dist. Portage No. 2010-P-0046, 2012-Ohio-1268; State v.
Campbell, 1st Dist. Hamilton No. C-120871, 2013-Ohio-5612; State v. Wheatley,
4th Dist. Hocking No. 17CA3, 2018-Ohio-464; State v. Glover, 9th Dist. Summit
No. 27307, 2015-Ohio-2751, ¶¶ 5-6; State v. Rush, 2d Dist. Montgomery No. 25179,
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2012-Ohio-5919 (noting that Heller did not expressly prescribe a strict scrutiny
standard). Some federal courts have also applied an intermediate scrutiny standard.
See Kachalsky v. Cty. Of Westchester, 701 F.3d 81, 93-94 (2d Cir.2012); United
States v. Reese, 627 F.3d 792, 01-802 (10th Cir.2010); Tyler v. Hillsdale County
Sheriff’s Dept., 837 F.3d 678, 699 (6th Cir.2016).
{¶22} “In applying the intermediate scrutiny standard to legislation that
regulates the Second Amendment, such legislation (1) must be narrowly tailored to
serve a significant government interest, and further, it (2) must leave open
alternative means of exercising the right.” State v. Henderson, 11th Dist. Portage
No. 2010-P-0046, 2012-Ohio-1268, ¶ 52, citing Perry Edn. Assn. v. Perry Local
Educators’ Assn., 460 U.S. 37, 103 S.Ct. (1983). Notably, “Intermediate scrutiny
does not demand that the challenged law ‘be the least intrusive means of achieving
the relevant governmental objective, or that there be no burden whatsoever on the
individual right in question.’ ” Wheatley, supra, at ¶ 17, citing United States
Masciandaro, 638 F.3d 458, 474 (4th Cir.2011).3
3
Were we not to apply “intermediate scrutiny” in this matter as numerous other courts have, we note that
some federal courts have applied a two-part test when determining legislation with regard to the Second
Amendment. In that two-part test, “First, the court must consider whether the challenged law imposes a
burden on conduct falling within the scope of the Second Amendment guarantee. If it does, the court must
evaluate the law under ‘some form of means-end scrutiny.’ ” State v. Campbell, 1st Dist. Hamilton No. C-
120871, 2013-Ohio-5612, ¶ 11, citing Drake v. Filko, 724 F.3d 426, 429 (3d Cir.2013); United States v.
Greeno, 679 F.3d 510, 518 (6th Cir.2012); Reese at 800–801; U.S. v. Marzzarella, 614 F.3d 85, 89 (3d
Cir.2010). We note that our decision in this case would be the same under a means-end scrutiny, or strict
scrutiny for that matter.
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Analysis
{¶23} The right to keep and bear arms is a fundamental right enshrined in
federal and state constitutional law. State v. Weber, 12th Dist. Clermont No.
CA2018-06-040, 2019-Ohio-916, ¶ 21. The Second Amendment to the United
States Constitution reads, “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The Ohio Constitution reads, “The people have the right to bear arms for their
defense and security; but standing armies, in time of peace, are dangerous to liberty,
and shall not be kept up; and the military shall be in strict subordination to the civil
power.” Ohio Constitution Article I, Section 4.
{¶24} In District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783(2008), the Supreme Court of the United States held that the Second Amendment to
the United States Constitution confers an individual right to keep and bear arms, and
that its “core protection” is “the right of law-abiding, responsible citizens to use
arms in defense of hearth and home.” Heller at 635. Then, McDonald v. Chicago,
561 U.S. 742, 750, 130 S.Ct. 3020 (2010), extended the Second Amendment right
to keep and bear arms to the states under the Fourteenth Amendment’s Due Process
Clause. Separately, under our own constitution, the Supreme Court of Ohio has
similarly held that Article I, Section 4 of the Ohio Constitution confers upon
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Ohioans the fundamental, individual right to bear arms for defense and security. See
Arnold v. Cleveland, 67 Ohio St.3d 35 (1993).
{¶25} Nevertheless, despite these pronouncements, both the United States
Supreme Court in Heller, and the Supreme Court of Ohio in Arnold, recognized that
the right to bear arms is not absolute. Heller held,
Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example,
concealed weapons prohibitions have been upheld under the
Amendment or state analogues. The Court’s opinion should not
be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws
forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing conditions
and qualifications on the commercial sale of arms.
Heller at paragraph 2 of the syllabus.
{¶26} The Supreme Court of Ohio similarly held in Arnold that the right to
keep and bear arms was “subject to reasonable regulation” which, under the State’s
police powers, must “bear a real and substantial relation” to secure “the health,
safety, morals, or general welfare of the public.” Arnold at 46-47. The Supreme
Court of Ohio further held that “there must be some limitation on the right to bear
arms to maintain an orderly and safe society while, at the same time, moderating
restrictions on the right so as to allow for practical availability of certain firearms
for purposes of hunting, recreational use and protection.” Id. at 48.
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{¶27} In this case, Johnson was charged with Having Weapons While Under
Disability in violation of R.C. 2923.13(A)(2), which reads as follows.
(A) Unless relieved from disability under operation of law or
legal process, no person shall knowingly acquire, have, carry, or
use any firearm or dangerous ordnance, if any of the following
apply:
***
(2) The person is under indictment for or has been convicted of
any felony offense of violence or has been adjudicated a
delinquent child for the commission of an offense that, if
committed by an adult, would have been a felony offense of
violence.
{¶28} Johnson’s “disability” was a juvenile adjudication for Burglary, which
would have been a felony if committed by an adult. Pursuant to R.C. 2901.01(A)(9),
any violation of R.C. 2911.12(A)(1), (A)(2), or (A)(3)—the Burglary statute—is an
offense of violence, and thus would create a disability.
{¶29} On appeal, Johnson argues, inter alia, that while felons can properly
be restricted from possessing firearms, a juvenile adjudication for an offense that
would be a felony if committed by an adult, was not, in fact, committed by an adult.
Thus a juvenile adjudication should not be treated as a criminal act. Johnson argues,
“Simply put, juvenile transgression[s], even serious ones, are not sufficient
transgressions as to enable a lifetime deprivation to that individual of his
fundamental constitutional rights.” (Appt.’s Br. at 5). In addition, Johnson argues
that the restriction on the Second Amendment for a “generic ‘burglary’ offense
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without any direct finding that the underlying criminal offense was also violent * *
* in the case of a juvenile delinquency specifically, is not narrowly tailored to serve
a significant government interest.” (Id. at 8).
{¶30} In making his argument, Johnson acknowledges the Supreme Court
of Ohio’s recent decision in State v. Carnes, 154 Ohio St.3d 527, 2018-Ohio-3256.
In Carnes the Supreme Court of Ohio considered the question of
whether using a prior juvenile adjudication of delinquency for the
commission of an offense that would have been felonious assault
if it had been committed by an adult as an element of the offense
of having a weapon under disability as set forth in R.C.
2923.13(A)(2) violates due process.
Carnes at ¶ 1.
{¶31} In Carnes, the Supreme Court of Ohio determined that using the
juvenile adjudication for an offense that would be a felony offense of violence if
committed by an adult to create a disability did not violate due process. The court
in Carnes noted that that there was a legislative purpose in keeping firearms away
from people who “ ‘ “Congress classified as potentially irresponsible and
dangerous.” ’ ” Carnes at ¶ 15, quoting Lewis v. United States, 445 U.S. 55, 64-65,
100 S.Ct. 915 (1980), quoting Barrett v. United States, 423 U.S. 212, 218, 96 S.Ct.
498 (1976). The court in Carnes further held that, “[i]nherent in R.C. 2923.13(A)(2)
is a policy decision made by the legislature that allowing weapons in the hands of
individuals with certain prior juvenile adjudications poses an increased risk to public
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safety[.]” Carnes at ¶ 16. The court in Carnes thus determined that even though
there was no right to a jury trial in a juvenile case, it did not make “prior juvenile
adjudications unreliable for risk-assessment purposes.” (Emphasis added.) Id. at ¶
17.
{¶32} However, while the Supreme Court of Ohio conducted the preceding
analysis related to due process, the court in Carnes specifically declined to address
whether criminalizing the possession of a firearm based upon a prior juvenile
adjudication for a felony offense of violence violated the right to bear arms under
the constitutions of the United States and Ohio because it was not raised in the trial
or appellate courts. Carnes at ¶ 20.
{¶33} Nevertheless, despite failing to reach the precise issue in this case,
some of the analysis by the court in Carnes is instructive here, as the legislature
does have an interest in keeping weapons out of the hands of certain individuals,
and a juvenile adjudication for an offense of violence could be a valid risk-
assessment tool. In addition, as Carnes noted, a juvenile under similar
circumstances to Johnson is not permanently prevented from acquiring a firearm.
The legislature created a process wherein an individual could seek relief from
disability under R.C. 2923.14(A)(1). Similar to Carnes, it does not appear Johnson
availed himself of this process to have his second amendment rights restored.
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{¶34} Moreover, although we acknowledge that Johnson’s challenge in this
case is a novel issue in our district, and relatively novel in Ohio, other courts around
the country have addressed similar issues and upheld constitutional restrictions on
the right to bear arms that are based on juvenile adjudications after the Heller
decision was released.4 See In re C.W., 8th Dist. Cuyahoga No. 106465, 2018-Ohio-
3172, ¶ 13 (summarily denying an argument that an adjudication for Having
Weapons While Under Disability violated the Second Amendment); see also
Minnesota v. Meadows, Minn.App. No. A13-1023, 2014 WL 3396238; U.S. v.
Mendez, 584 Fed.Appx. 679 (9th Cir.2014); California v. Villa, 3d Dist. California
178 Cal.App.4th 443, 100 Cal.Rptr.3d 463; Prekker v. Commonwealth, 66 Va.App.
103, 782 S.E.2d 604 (“Accordingly, viewing the Second Amendment right as a
historical matter, a ban on possession by a juvenile who was adjudicated delinquent
for a felonious act rests on the same footing as the presumptively constitutional ban
on a felon possessing firearms”); Chardin v. Police Com’r of Boston, 465 Mass.
314, 989 N.E.2d 392 (2013) (prohibition of a license to carry firearms to an
individual who has been adjudicated a delinquent child for the commission of a
felony is not a criminal penalty, not cruel and unusual punishment, and is
permissible under the Second Amendment).
4
We recognize that there are distinctions amongst these cases, but assessing them broadly, they support
restrictions on the Second Amendment for prior juvenile adjudications.
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{¶35} In sum, the legislature has made a policy decision to exclude those
with certain prior juvenile adjudications from possessing firearms. See State v.
Cheatham, 9th Dist. Summit No. 28859, 2019-Ohio-122, ¶ 5. As courts have held,
“[I]t remains permissible to seek to keep firearms out of the hands of irresponsible
persons.” Catucci v. Benedetti, 27 Mass.L.Rptr 385, 2010 WL 4072790. Although
a juvenile adjudication is not a criminal conviction, the legislature is wholly within
its powers to use that juvenile adjudication for an offense that would be a felony
offense of violence if committed by an adult as a “risk-assessment” tool. The
legislature even elected to tailor the Having Weapons While Under Disability statute
related to juvenile adjudications to those adjudications that would be felony offenses
of violence if committed by an adult, and provided a means to remove the disability.
We cannot find under these circumstances that R.C. 2923.13(A)(2) is
unconstitutional facially, or as applied to Johnson. For all of these reasons,
Johnson’s first assignment of error is overruled.
Second Assignment of Error
{¶36} In Johnson’s second assignment of error, he argues that the trial court
erred by denying his motion to dismiss the Having Weapons While Under Disability
charge on the basis of his argument that Burglary could be committed without
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violence and therefore it was essentially improperly categorized as an “offense of
violence.”5
Analysis
{¶37} At the outset of our analysis, we note that the record is not entirely
clear as to what degree of “Burglary” Johnson had been adjudicated delinquent for
committing. We do not have a copy of the judgment entry from the juvenile court
proceedings; however, the parties seem to be in agreement that Johnson had been
previously adjudicated delinquent specifically for Burglary, and the arguments of
the parties focus on Burglary in violation of R.C. 2911.12(A)(3) as though that is
what his specific delinquency was for.
{¶38} According to R.C. 2911.12(D), whoever violates any of the (A)
sections of R.C. 2911.12 is guilty of Burglary. Pursuant to R.C. 2911.12(D), a
violation of R.C. 2911.12(A)(1) or (A)(2) is a felony of the second degree, and a
violation of R.C. 2911.12(A)(3) is a felony of the third degree. Revised Code
2901.01(A)(9) defines “[o]ffense of violence” as any violation of numerous code
sections, including violations of R.C. 2911.12(A)(1), (A)(2), or (A)(3). Thus
assuming Johnson was adjudicated delinquent for Burglary under R.C.
5
Johnson’s second assignment of error seems to also challenge the relative constitutionality of R.C.
2923.13(A)(2) as applied to him, which makes the legal authority cited in the previous assignment of error
applicable to this assignment.
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2911.12(A)(3), it was a felony of the third degree and an offense of violence as
classified by the legislature.
{¶39} Nevertheless, although a violation of R.C. 2911.12(A)(3) is facially
listed as an “offense of violence” (which would lead to a disability under R.C.
2923.13(A)(2)), Johnson argues that Burglary under division (A)(3) requires a
person by force, stealth, or deception to trespass in an occupied structure with
purpose to commit “any criminal offense.” He contends that since the offense could
be theft, and since the trespass could be stealth, there may be no actual violence
involved in the Burglary whatsoever. He argues specifically in this instance there
was no actual violence and that his juvenile adjudication for Burglary should not be
summarily classified as an offense of violence.
{¶40} As noted by the State, Johnson ignores the potential for violence when
trespassing in an occupied structure. See State v. Johnson, 8th Dist. Cuyahoga No.
47495, 1984 WL 5571 (“Burglary is an ‘offense of violence,’ since it involves a
significant risk of physical harm.”) There is also an expectation of security in a
home or occupied structure, which increases the risk for violence.
{¶41} Based on the dangerous nature of a Burglary, we cannot find that it is
unreasonable for the legislature to include it as an “offense of violence,” particularly
for risk-assessment purposes in determining a disability under R.C. 2923.13(A)(2).
To the extent that Johnson argues his second assignment of error as a separate
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avenue of an “as applied” or “facial” constitutional attack on R.C. 2923.13(A)(2), it
is not well-taken. Therefore we do not find that the trial court erred in denying his
motion to dismiss on this basis. Accordingly, Johnson’s second assignment of error
is overruled.
Third Assignment of Error
{¶42} In Johnson’s third assignment of error, he argues that the trial court
erred by overruling his suppression motion. Specifically, he contends that the
custodial interrogation conducted on December 18, 2018, contained “intentionally-
elicited inculpatory answers” regarding Johnson’s drug use prior to Miranda
warnings being given to him. (Appt.’s Br. at 12).
Standard of Review
{¶43} “Appellate review of a motion to suppress presents a mixed question
of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At
a suppression hearing, the trial court assumes the role of trier of fact and, as such, is
in the best position to evaluate the evidence and the credibility of witnesses. Id.;
see also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling
on a motion to suppress, “an appellate court must accept the trial court’s findings of
fact if they are supported by competent, credible evidence.” Burnside at ¶ 8, citing
State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s
conclusions of law, however, our standard of review is de novo, and we must
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independently determine whether the facts satisfy the applicable legal standard. Id.,citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).
Analysis
{¶44} A copy of the entire custodial interrogation of Johnson on December
18, 2018, was introduced into evidence at the suppression hearing in this matter.
The video is slightly under one hour and eight minutes. At approximately 33
seconds into the video, two detectives enter into a room wherein Johnson is already
present and seated. (State’s Ex. 1). The detectives introduce themselves, take seats
at the table with Johnson, and then one of the detectives indicates that she is going
to get some personal information from Johnson. (Id.) The detective states that after
she gets the personal information from Johnson she will then read Johnson a form,
and if he wanted to talk to the detectives they would talk, and if not, they would not.
(Id.)
{¶45} For nearly the next two minutes, Johnson is asked “routine”
background/booking questions such as his name, his date of birth, his social security
number, his home address, his phone number, his employment status, and how far
he went in school. (Id.) Then he is asked if he feels like he is currently under the
influence of drugs or alcohol, which he shakes his head to respond in the negative.
(Id.)
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{¶46} Next, Johnson is asked whether he regularly uses drugs or alcohol,
and he nods his head yes. (Id.) Johnson is asked what he regularly uses, and he
states “marijuana.” (Id.) He is asked if there are things that he “dabbles with” and
he responds “wax,” though he does not know what all is in it. (Id.) Johnson is asked
if he has ever used heroin or meth and he responds specifically saying not heroin.
(Id.) He is then asked what prior felonies he has on his record, and he says
“Weapons Under Disability.” After this question, Johnson is read a Miranda form,
he signs it, and indicates that he is willing to talk to the detectives.
{¶47} Johnson argues that the questioning prior to the Miranda form being
read in this matter was improper. Johnson argues that while the trial court found
that the questions were merely “background questions,” there was no reason the
questions could not have been asked following a Miranda warning. In addition,
Johnson argues that the questions about his drug use were improper given that he
was ultimately being questioned about his possession of drugs. He contends that
the pre-Miranda questioning tainted the post-Miranda questioning related to drugs
that were found near Johnson during a search of the residence he was in.
{¶48} As the trial court stated in its entry, the questions related to Johnson’s
personal history were not required to be prefaced with Miranda warnings. State v.
Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 33. In addition, in order to determine
if a Miranda waiver would even be valid, it would be reasonable to ask an individual
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if the individual was under the influence of any drugs. Related to this, the detective
asked Johnson what drugs he used, perhaps in an attempt to see if he may be
suffering from some withdrawal. Based on the facts presented, the trial court found
that all questions were simply background questions, which did not require Miranda
warnings.
{¶49} In our own review of the matter, we find that the majority of the
questions asked could certainly fall into the nature of reasonably relatable police
administrative concerns. Hale at ¶ 33. To the brief and limited extent here that
Johnson was questioned prior to Miranda warnings being given, we cannot find that
the trial court erred in determining that those questions were related to “routine
booking information.” We take some issue with this classification regarding the last
pre-Miranda question asking whether Johnson specifically had ever used heroin,
particularly in view of the fact that possession of heroin was one of the charges for
which he was under investigation. However, under the totality of the circumstances
and pursuant to the factors set forth in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct.
2601 (2004), and State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, ¶¶ 30-31,
we cannot find that this questioning in any way “tainted” the rest of the lengthy
interview such that any of the statements should be suppressed. Moreover, on the
record before us, we cannot find that there was any questioning here that was
designed to elicit incriminatory admissions, or anything that rose to the level of
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suppressible police misconduct. See Hale at ¶ 33. Therefore, Johnson’s third
assignment of error is overruled.6
Fourth Assignment of Error
{¶50} In Johnson’s fourth assignment of error, he argues that the trial court
should have suppressed the interrogation in this matter because the Miranda
warnings were inadequate. Specifically, he contends that the notification of his right
to consult an attorney before questioning, or to have an attorney present during
questioning, was not adequately explained.
Analysis7
{¶51} In this case, when the detective is about to advise Johnson of his
Miranda rights, she gives him a written form to read along with as she reads his
rights to him. Before reading the form, the detective advises Johnson that if he has
any questions or if there is anything he does not understand, to let her know. A
Miranda form was then read to Johnson, which contained the following language.
It is my duty to advise you that under the constitution of the
United States and the Constitution of the State of Ohio you do not
have to make any statement and if you do make a statement what
you do say may be used against you in court. You are further
advised that if you do wish to make a statement, you have a right
to have your attorney present during the taking of the statement
and if you do not have the funds to employ an attorney then an
6
We note that the State actually agreed not to use any of the pre-Miranda statements at trial and Johnson still
elected to enter his no contest plea. While this does not impact the legality of the statement, Johnson still
could have proceeded forward in the case presumably without this information being presented if he felt it
was prejudicial.
7
The same suppression standard of review from the third assignment of error is applicable here.
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attorney will be appointed without any expense to you to
represent and advise you.
(State’s Ex. 1).8
{¶52} After the form was read to Johnson, which he appeared to read along
with on the copy in front of him, the detective summarized four important points for
Johnson to be aware of: 1) that Johnson did not have to talk to her if he did not want
to; 2) that if he wanted to talk but he wanted to wait until he had an attorney present
they could do that, it would just be at a different date and time; 3) that the things
they discussed would not be just between them as they would be stated in a report
and shared with the court if applicable; and 4) that if Johnson did not have the funds
to employ an attorney one would be appointed for him free of charge. (Id.) The
detective then asked if Johnson understood and if he had any questions. Johnson
did not have any questions at that time.
{¶53} The detective continued by reading a second part of the written form,
which stated that Johnson had his rights read to him, that he was willing to answer
questions and make a statement, that he did not want an attorney at that time, and
that no promises or threats were made to him. Again, the detective summarized this
portion of the written form after reading it to Johnson, reiterating what she had just
read. The detective then asked if it all made sense, and asked whether Johnson had
8
The form itself is not included in the record. The admonishment is transcribed from the interrogation video.
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any questions. Johnson again did not have any questions. At that point, the
detective asked Johnson if he wanted to discuss the case, and Johnson said, “I
guess.” (Id.) Afterward Johnson signed the written Miranda waiver.
{¶54} On appeal, Johnson argues that the Miranda warnings were
insufficient because he claims he was not told about the right to consult with an
attorney prior to the interrogation.
{¶55} Contrary to Johnson’s argument, we find that the preceding
statements made by the detective were compliant with Miranda. In fact, we
considered essentially the exact same argument related to an alleged Miranda
deficiency in State v. Smith, 3d Dist. Allen No. 1-17-50, 2018-Ohio-1444, ¶¶ 19-21,
and found that there was no deficiency merely because the exact language the
defendant wanted to be used was not used.
{¶56} The record does not demonstrate any deficiency in the Miranda
warnings given to Johnson and, in fact, it demonstrates clear compliance with
Miranda. See id. All indications are that Johnson was fully aware of the rights he
was waiving, that he was fully apprised of his right to consult an attorney, and that
he could have an attorney appointed for him if he could not afford one. For these
reasons, Johnson’s fourth assignment of error is overruled.
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Conclusion
{¶57} For the foregoing reasons Johnson’s assignments of error are
overruled and the judgment of the Allen County Common Pleas Court is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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