State v. Jackson

[Cite as State v. Jackson, 2023-Ohio-2063.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112020
v. :
ADOLPH JACKSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 22, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-662475-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Tasha L. Forchione and Joseph Lucchesi,
Assistant Prosecuting Attorneys, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Robert B. McCaleb, Assistant Public Defender, for
appellant.
SEAN C. GALLAGHER, J.:
Adolph Jackson challenges the constitutional validity of his
conviction for transporting or having a concealed and loaded handgun in the
passenger compartment of his motor vehicle. Jackson’s argument is premised on
the restriction imposed by R.C. 2923.16(B), which does not apply to any Ohioan who
validly possesses a concealed handgun license. R.C. 2923.16(F)(5). Because
Jackson has not framed his argument within the context of Ohio’s concealed weapon
licensing scheme, there is no relief that can be offered. The conviction is affirmed.
The day following the July 4th holiday in 2020, Jackson and others
were partying on Lakeside Avenue in Cleveland. The group, including Jackson, were
sharing an open container of tequila while sitting in his vehicle, and at least one male
was seen with a firearm. Agents of the Ohio Department of Public Safety witnessed
the illegal activity and reported it to Cleveland police officers. The agents believed
the group suspected the agents’ presence. As the officers pulled around for a better
view, the group began to pull away in different directions in various vehicles.
Jackson’s red Honda, with the occupants who were seen consuming alcohol from an
open container and who were believed to have a firearm, was followed.
Cleveland police officers initiated a stop for the open container
violation. Jackson was driving. When they approached the vehicle, the open tequila
bottle was in plain view. Jackson, after being removed from the vehicle, admitted to
officers that there were weapons in the vehicle and directed them where to find
them. Because of the possession of firearms, the vehicle was searched, and a loaded
9 mm Glock 19 handgun, with an extended magazine, and a Smith and Wesson .40-
caliber handgun were recovered. The Glock was under the driver’s seat, and the
Smith and Wesson was recovered from the back pocket of the driver’s seat. Jackson
was indicted for carrying a concealed weapon in violation of R.C. 2923.12(A)(2), a
felony of the fourth degree, and improperly handling firearms in a motor vehicle in
violation of R.C. 2923.16(B), also a felony of the fourth degree. Each charge
pertained to one of the weapons, although it is unclear which weapon corresponded
with which count. Both counts included forfeiture specifications identifying both
weapons.
Jackson filed a motion to suppress the fruits of the search and a
motion to dismiss the indictment, in which he claimed that possessing a firearm in
a vehicle is a constitutionally protected activity under the then newly released
decision New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. ___, 142 S.Ct.
2111, 213 L.Ed.2d 387 (2022). Jackson cited the Stagecoach Act of 1788, law from
the Parliament of Great Britain, and the 1939 western film “Stagecoach” as historical
references for arming individuals inside vehicles. Both motions were denied.
Before the suppression hearing, the state offered a plea deal, wherein
Jackson would plead guilty to one count of attempted improper handling, along with
forfeiture of the weapons. That offer was contingent on pleading guilty before the
suppression hearing. Jackson rejected the offer. The trial court found that probable
cause to stop the vehicle existed based on the third-degree misdemeanor open liquor
and consuming alcohol in a car violations and that the search was conducted for the
officers’ safety. Jackson pleaded no contest to both counts as stated in the
indictment. The trial court found him guilty and sentenced him to a two-year term
of community control on each count. This timely appeal followed.
In the sole assignment of error, Jackson challenges his conviction for
improperly handling firearms in a motor vehicle, claiming that R.C. 2923.16(B)
violates Jackson’s constitutional right under the Second Amendment. Jackson’s
assignment of error does not include arguments pertaining to the carrying a
concealed weapon conviction; he only cites R.C. 2923.16(B) as being constitutionally
questionable. The carrying a concealed weapon conviction, even though the crime
was committed in a motor vehicle, stands as final.
R.C. 2923.16 provides in pertinent part that “[n]o person shall
knowingly transport or have a loaded firearm in a motor vehicle in such a manner
that the firearm is accessible to the operator or any passenger without leaving the
vehicle.” R.C. 2923.16(B). According to Jackson, and in addition to the historical
perspective from his motion to dismiss, the “plain holdings of [Dist. of Columbia v.
Heller, 554 U.S. 570, 603, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)], [McDonald v.
Chicago, 561 U.S. 742, 750, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010),] and Bruen
make it clear that the Second Amendment protects a fundamental right to bear arms
outside the home, including in a car.”
Jackson focuses on Bruen. That is arguably for good reason. Before
Bruen, a defendant challenging the constitutionality of a firearms statute bore the
burden of proof using balancing tests. State v. Philpotts, 8th Dist. Cuyahoga No.
107374, 2023-Ohio-213, ¶ 4, citing Bruen, 142 S.Ct. 2111, at 2129-2130, 213 L.Ed.2d
387. Bruen “shifts the burden of proof and alters the court’s standard of review for
determining the constitutionality of firearm-regulating statutes such as
R.C. 2923.13.” Id. Under the newer standard, the state “bears the burden of proof
and is required to ‘justify its regulation by demonstrating that it is consistent with
the Nation’s historical tradition of firearm regulation.’” Id., citing Bruen. In other
words, “government must affirmatively prove that its firearms regulation is part of
the historical tradition that delimits the outer bounds of the right to keep and bear
arms.” Bruen at 2127. “To carry its burden, the [g]overnment must point to
‘historical precedent from before, during, and even after the founding [that] evinces
a comparable tradition of regulation.’” United States v. Rahimi, 61 F.4th 443, 454
(5th Cir.2023). Courts, however, are not “obliged to sift the historical materials for
evidence to sustain” state statutes limiting the right to carry firearms. Id. That
burden falls on the parties presenting the argument.
Bruen “clarified that the right to bear arms in public was still ‘subject
to certain reasonable, well-defined restrictions,’ such as those limiting ‘the intent for
which one could carry arms, the manner by which one carried arms, or the
exceptional circumstances under which one could carry arms.’” (Emphasis added.)
In re Terry, 11th Cir. No. 22-13615-C, 2022 U.S. App. LEXIS 31448, 4 (Nov. 14,
2022), citing Bruen at 2156. “Justice Alito also stated that Bruen does not ‘disturb
anything . . . in Heller or McDonald . . . about restrictions that may be imposed on
the possession or carrying of guns.’” Id., citing Bruen at 2157 (Alito, J., concurring)
and 2162 (Kavanaugh, J., concurring). Justice Kavanaugh further expanded the
discussion: “the Court’s decision does not prohibit States from imposing licensing
requirements for carrying a handgun for self-defense. In particular, the Court’s
decision does not affect the existing licensing regimes—known as “shall-issue”
regimes—that are employed in 43 States [including Ohio].” Bruen impacted “the
[six] States” with permissive issue restrictions, but nothing within Bruen precluded
those six states from “requir[ing] licenses for carrying handguns for self-defense”
based on “objective licensing requirements like those used by the 43 shall-issue
States[, including Ohio].” Bruen at 2162 (Kavanaugh, J., concurring). In Justice
Kavanaugh’s view, the Court’s opinion in Bruen does not prohibit states from
“requir[ing] a license applicant to undergo fingerprinting, a background check, a
mental health records check, and training in firearms handling and in laws
regarding the use of force, among other possible requirements” before a citizen may
be licensed to carry and conceal loaded firearms outside of the home. Bruen does
not impact all concealed weapons laws.
R.C. 2923.16(B)’s prohibition against handling loaded, concealed
handguns in motor vehicles falls under Ohio’s broader concealed weapons law. That
division provides that “[n]o person shall knowingly transport or have a loaded
firearm in a motor vehicle in such a manner that the firearm is accessible to the
operator or any passenger without leaving the vehicle.” However, under R.C.
2923.16(F)(5), division (B) does “not apply to a person who transports or possesses
a handgun in a motor vehicle if” that person “has been issued a concealed handgun
license that is valid at the time.” The firearms in this case are both handguns, so
there is no need to discuss division (B) as it pertains to other kinds of firearms, such
as rifles or shotguns. That discussion would be largely outside the scope of this
appeal.
Jackson repeatedly highlights the fact that he is facially challenging
R.C. 2923.16(B). “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.” State v. Romage, 138 Ohio St.3d 390, 2014-
Ohio-783, 7 N.E.3d 1156, ¶ 7, citing Oliver v. Cleveland Indians Baseball Co. Ltd.
Partnership, 123 Ohio St.3d 278, 2009-Ohio-5030, 915 N.E.2d 1205, ¶ 13.
According to Jackson, “R.C. 2923.16(B)’s ban is unconstitutional in all applications
because it deprives all Ohioans of the unimpeded right to bear arms for defensive
purposes while traveling in an automobile.” (Emphasis added.) But that is not an
accurate statement of law. The foundation of Jackson’s argument is fundamentally
flawed.
Jackson has not included R.C. 2923.16(F)(5) in his discussion
regarding the constitutional validity of division (B) of that section. Under Ohio law,
at least at the time of these events, no Ohioan could carry or transport a concealed,
loaded handgun without first obtaining a concealed handgun license, whether that
person was outside of the home or in a motor vehicle. See R.C. 2923.12(A)(2);
2923.16(B). R.C. 2923.16(F)(5) provides an exception to the prohibition against
transporting or having a loaded handgun in a motor vehicle.
A violation of R.C. 2923.16 at the time of the underlying events and
for the conduct for which Jackson was convicted could only occur if the offender
lacked a valid concealed handgun license, which would permit the person to conceal
a loaded handgun in the passenger compartment of a motor vehicle.
R.C. 2923.16(F)(5). Thus, R.C. 2923.16(B) in particular is not a wholesale
preclusion against handling loaded firearms within motor vehicles for all Ohioans;
it merely provides a licensing requirement before such activity can be conducted
with respect to handguns. In other words, R.C. 2923.16(B) criminalizes that limited
conduct for a class of persons, those who did not possess valid concealed handgun
licenses at the time of the R.C. 2923.16(B) offense. And that is unlike more
restrictive laws in other states that attempted to completely preclude concealed
weapons license holders from transporting any loaded firearms in vehicles. See, e.g.,
Koons v. Reynolds, D.N.J. No. 22-7464, 2023 U.S. Dist. LEXIS 3293, 56 (Jan. 9,
2023) (plaintiffs demonstrate the potential merit to an argument that requiring
conceal-carry permit holders to transport unloaded firearms in motor vehicles is
unconstitutional). Jackson ignored this distinction in his appellate briefing and did
not challenge the constitutional validity of his conviction for carrying a concealed
weapon in violation of R.C. 2923.12(A)(2) or that of Ohio’s shall-issue licensing
requirements for carrying concealed weapons outside of the home.
Under his theory, the state may restrict the carrying or having a
concealed handgun outside of the home in general, which applies to persons within
motor vehicles as aptly demonstrated by this case, but it would be unconstitutional
to restrict that same conduct while in a motor vehicle under R.C. 2923.16(B).
Jackson asks this court to entertain an argument, the resolution of which would
create a paradox: that Ohio’s concealed handgun licensing system, then in effect,
restricts Ohioans from carrying or having concealed handguns anywhere outside of
the home as a valid limitation on the Second Amendment, without first obtaining a
license, but that the more specific crime of improper handling of a firearm in a motor
vehicle is an unconstitutional restriction on the same right. An answer to that
question, as posed by Jackson, is unnecessary.
The question is not whether R.C. 2923.16(B) infringes on the rights
guaranteed under the Second Amendment, but whether the state’s requirement to
obtain a concealed handgun license to engage in the type of conduct Jackson
pursued impermissibly infringed on his constitutional rights. R.C. 2923.16(F)(5)
authorizes the possession of a handgun in a motor vehicle if the person is properly
licensed, so the question is whether the state’s requirement of obtaining the license
is an unconstitutional restriction to handling a handgun in a motor vehicle. Jackson
has not discussed the implications of subdivision (F)(5).
It must be emphasized that Jackson was convicted of possessing
handguns in this case, not rifles or shotguns that can be transported in a motor
vehicle under certain conditions, all of which require the rifle or shotgun to be
unloaded and visible (unless only accessible after exiting the vehicle). R.C.
2923.16(C). Had Jackson been cited for possession of a rifle or shotgun, then he
could potentially challenge the improper handling violation on constitutional
grounds without reference to Ohio’s concealed handgun licensing laws because the
license would not impact the analysis. Jackson does not have standing to challenge
R.C. 2923.16(B) as it pertains to rifles or shotguns, however, because that aspect of
the statute was not implicated under the facts presented: Jackson was charged with
possession of handguns.
If the improper handling charge is invalidated under Jackson’s
analysis, the concealed handgun licensing laws are not impacted. As will be
discussed in further detail, Bruen essentially concluded that states can mandate
concealed weapons licensing laws, if they fit the “shall issue” mold like Ohio’s
version in effect at the time the crime was committed. If we grant Jackson relief,
that hypothetical decision would stand for the proposition that it is unconstitutional
to preclude transportation or possession of a loaded handgun in a motor vehicle, but
any requirement to obtain a license to conceal a loaded handgun outside the home
in general, which necessarily includes carrying or having that weapon to, from, or in
the motor vehicle, is presumptively valid.
In light of the quandary presented by Jackson’s challenge of the
improper handling of the firearm while leaving his conviction for carrying a
concealed weapon to become final, additional briefing was sought, asking: Does
Ohio’s concealed weapons licensing laws, specifically R.C. 2923.16(F)(5) that
authorizes concealed handguns license holders to engage in the conduct generally
precluded under R.C. 2923.16(B), impact the constitutional validity of R.C.
2923.16(B) under New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. ___,
142 S.Ct. 2111, 213 L.Ed.2d 387 (2022).
Jackson argues that R.C. 2923.16(F)(5) does not impact the validity
of R.C. 2923.16(B), but only because Ohio’s concealed handgun licensing laws are
themselves unconstitutional because of the overly broad restrictions to obtaining the
license. Again, Jackson makes no mention of his carrying a concealed weapon
conviction or the impact R.C. 2923.16(F)(5) has on division (B) of that section.
Jackson has waived any argument challenging the constitutional validity of Ohio’s
concealed handgun licensing laws (as they existed at the time of his conviction); he
cannot raise the argument for the first time in an appeal, much less upon the
prompting of this court asking to clarify whether his arguments are impacted by his
failure to discuss R.C. 2923.16(F)(5). State v. Awan, 22 Ohio St.3d 120, 122, 489
N.E.2d 277 (1986), quoting State v. Childs, 14 Ohio St.2d 56, 62, 236 N.E.2d 545(1968) (“Constitutional rights may be lost as finally as any others by a failure to
assert them at the proper time.”).
Our request for supplemental briefing was not an invitation to raise
the new constitutional argument but merely asked whether the constitutional
validity of R.C. 2923.16(B) depended on the exception codified under subdivision
(F)(5). In light of Jackson’s argument, it is presumed that the concealed handgun
licensing laws do impact the arguments he raised challenging the constitutional
validity of R.C. 2923.16(B); otherwise, there was no need to challenge the
constitutional validity of the concealed handgun licensing structure within the
supplemental briefing.
Ohio’s concealed handgun licensing scheme, according to Jackson, is
unconstitutional because it precludes people under the age of 21, people who are
under indictment for a felony offense, certain offenders convicted of any drug
offenses, people committed to mental institutions, nonresidents, people who do not
work in Ohio or people who were discharged from the United States armed forces
under dishonorable conditions from obtaining a license to carry a concealed
handgun.1 R.C. 2923.125(D). None of those restrictions have been shown to apply
to Jackson.
Even if Jackson had not waived the constitutional arguments as
applied to the carrying concealed weapons charge, he lacks standing to challenge the
limitations to obtaining a concealed handgun license that he cites as being
unconstitutionally broad. A “‘plaintiff who challenges a statute must demonstrate a
realistic danger of sustaining a direct injury as a result of the statute’s operation or
enforcement.’” NRA of Am., Inc. v. McCraw, 719 F.3d 338, 345 (5th Cir.2013),
quoting Babbitt v. United Farm Workers Natl. Union, 442 U.S. 289, 298, 99 S.Ct.
2301, 60 L.Ed.2d 895 (1979). Each of the above-mentioned restrictions to obtaining
1 Jackson claims that a member of the armed forces who was discharged based
solely on 10 U.S.C. 654 is precluded from obtaining a concealed handgun license in Ohio
because the military characterized their service as “dishonorable” upon discharge.
Jackson’s reliance on news articles to demonstrate this point is misplaced. It suffices that
members of the military who were separated from active duty solely based on the now-
repealed 10 U.S.C. 654 were not required to be discharged under dishonorable conditions.
See, e.g., Witt v. Dept. of the Air Force, 527 F.3d 806, 810 (9th Cir.2008) (noting the
service member was honorably discharged based on application of 10 U.S.C. 654). The
Don’t Ask Don’t Tell policy has no bearing on Ohio’s concealed handgun licensing law and
does not share the hallmarks of inequality borne by the now-repealed 10 U.S.C. 654.
a concealed handgun license is narrowly tailored. In order to challenge the
restrictions to obtaining a license, Jackson must have been first impacted by the
restrictions he cites as being unconstitutional restrictions on the right to obtain a
concealed handgun license in Ohio. According to his arguments, he was not.
Jackson has not identified any place in the record indicating that he attempted to
obtain a concealed handgun license and was denied the ability to obtain the then-
required license.2
Without a valid concealed handgun license, Jackson was not lawfully
acting. See R.C. 2923.16(B) and (F)(5). He did not possess the required certification
that would have legitimized his conduct of improperly transporting or having a
loaded handgun in a motor vehicle. We cannot consider R.C. 2923.16(B) in isolation
and without considering the impact of Ohio’s concealed handgun licensing laws on
that division as enacted through subdivision (F)(5). Thus, the pertinent question is
whether Ohio’s shall-issue concealed handgun licensing law is an unconstitutional
restriction on the Second Amendment as applied to persons carrying concealed
2 The state suggests that Jackson was previously convicted of improper handling
of a firearm in a motor vehicle in Cuyahoga C.P. No. CR-18-625498, which precluded
Jackson from obtaining a valid concealed handgun license at the time of his offense.
Jackson does not, nor has he ever, challenged that particular restriction to obtaining a
concealed handgun license as being unconstitutionally over broad. That is probably for
good reason. As the state concisely, but aptly, concludes, it is notable that “six Justices
explained that certain firearms regulations, including prohibitions on the possession of
firearms by felons, are constitutional.” See Bruen, 142 S.Ct. at 2157 (Alito, J., concurring);
Id. at 2162 (Kavanaugh, J., joined by Roberts, C.J., concurring); id. at 2189 (Breyer, J.,
joined by Sotomayor and Kagan, JJ., dissenting); see also New York State Rifle & Pistol
Assn. v. City of New York, 140 S.Ct. 1525, 1540-1541 (2020) (Alito, J., joined by Thomas
and Gorsuch, JJ., dissenting).
handguns in motor vehicles. Until the supplemental briefing, that was not a
question this court was asked to resolve.
Because Jackson’s entire argument is premised on the wrong
foundation, the burden never shifted to the state to demonstrate the historical
significance of the purported limitation, codified in R.C. 2923.16(B)-(F)(5), to the
Second Amendment right as described in Bruen. Jackson’s argument takes an
isolated statutory division out of context of the broader laws surrounding Ohio’s
concealed handgun licensing system. This ignores the rest of the statutory scheme
in an apparent effort to avoid the implications of his decision to engage in illegal
conduct. Because R.C. 2923.16(F)(5) provides an exception to enforcement of
division (B), and because we must presume the constitutional validity of the
licensing requirement based on the arguments presented, Jackson has failed to
demonstrate error.
Jackson’s convictions are affirmed.
It is ordered that appellee recover from appellant 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.
______________________
SEAN C. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
EMANUELLA D. GROVES, J., CONCUR