[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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Case No. 1-19-47


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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Case No. 1-19-47


       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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Case No. 1-19-47


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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Case No. 1-19-47


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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Case No. 1-19-47


                                       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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Case No. 1-19-47


       {¶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.

                                                  -20-
Case No. 1-19-47


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


                                         -21-
Case No. 1-19-47


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


                                          -22-
Case No. 1-19-47


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.)




                                         -23-
Case No. 1-19-47


       {¶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


                                          -24-
Case No. 1-19-47


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


                                        -25-
Case No. 1-19-47


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.

                                                     -26-
Case No. 1-19-47


           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.

                                                      -27-
Case No. 1-19-47


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.




                                        -28-
Case No. 1-19-47


                                 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




                                     -29-
