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State v. Johnson

Court of Appeals of Ohio, Third District, Allen

December 30, 2019

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
AARON R. JOHNSON, DEFENDANT-APPELLANT.

          Appeal from Allen County Common Pleas Court Trial Court No. CR 2018 0531

         Judgment Affirmed

          Kenneth J. Rexford for Appellant

          Jana E. Emerick for Appellee

          OPINION

          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. 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.

         {¶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 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.

         {¶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.

         {¶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.

         {¶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 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 ...


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