[Cite as State v. Herron, 2017-Ohio-8908.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 27378
                                                   :
 v.                                                :   Trial Court Case No. 2016-CR-811
                                                   :
 TAHWIN S. HERRON                                  :   (Criminal Appeal from
                                                   :    Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                          Rendered on the 8th day of December, 2017.

                                              ...........

MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, 301
W. Third Street, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

TERRENCE K. SCOTT, Atty. Reg. No. 0082019, Assistant State Public Defender, 250 E.
Broad Street, Suite 1400, Columbus, Ohio 43215
      Attorney for Defendant-Appellant

                                             .............
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HALL, P.J.

       {¶ 1} Tahwin S. Herron appeals from his conviction and sentence on charges of

having a weapon while under disability and improperly handling a firearm in a motor

vehicle.

       {¶ 2} In his sole assignment of error, Herron contends the trial court erred in

overruling his motion to dismiss the weapon-under-disability charge where the predicate

disability arose from a juvenile-delinquency adjudication.

       {¶ 3} The record reflects that Herron was adjudicated delinquent in January 2016

based on conduct that constituted marijuana trafficking. At that time, he was seventeen

years old. Two months later, he was caught by police with a loaded firearm in a car. At

the time of that incident, he was eighteen years old. As a result, in June 2016, he was

indicted on the two charges set forth above.

       {¶ 4} The weapon-under-disability statute, R.C. 2923.13(A)(3), provides in

relevant part that “no person shall knowingly acquire, have, carry, or use any firearm or

dangerous ordnance if * * * [t]he person * * * has been adjudicated a delinquent child for

the commission of an offense that, if committed by an adult, would have been a felony

offense involving the illegal possession, use, sale, administration, distribution, or

trafficking in any drug of abuse.”

       {¶ 5} In his motion to dismiss, Herron argued below that State v. Hand, 149 Ohio

St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, barred the use of his juvenile adjudication to

establish the disability element of the weapon-under-disability charge. (Doc. #17). The

trial court rejected his argument, finding Hand distinguishable. Herron then pled no

contest to both charges against him. The trial court accepted the plea, found him guilty,
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and imposed community-control sanctions.

      {¶ 6} On appeal, Herron insists that the rationale of Hand applies to him. In Hand,

the Ohio Supreme Court held that a juvenile adjudication may not be treated as the

equivalent of an adult conviction for purposes of enhancing the degree of or the sentence

for a later crime committed as an adult. Hand at ¶ 37. Here Herron’s juvenile adjudication

did not enhance the penalty for his weapon-under-disability offense. Instead, it was used

to satisfy an element of the offense. Herron nevertheless asserts that this is an illogical

distinction and that the rationale of Hand should be applied in his case.

      {¶ 7} This court has rejected arguments identical to Herron’s on several prior

occasions. See State v. McComb, 2017-Ohio-4010, __ N.E.3d __, ¶ 26 (2d Dist.)

(concluding that “Hand does not ban the use of a prior juvenile adjudication as an element

of an offense; rather, Hand bans the use of a juvenile adjudication to enhance a penalty

by treating the adjudication as an adult conviction.”); State v. Boyer, 2017-Ohio-4199, __

N.E.3d __, ¶ 15-16 (2d Dist.) (“The use of Boyer’s juvenile adjudication in this case,

however, would not implicate the concerns that the Court articulated in its Hand decision.

Instead, Boyer’s indictment for having weapons while under disability relates strictly to

choices he has made since reaching the age of majority. * * * We find that the trial court

erred by dismissing the second count of the indictment against Boyer in reliance on the

Ohio Supreme Court’s decision in Hand.”); State v. Jackson, 2d Dist. Montgomery No.

27351, 2017-Ohio-4197, ¶ 9 (“Hand does not apply to R.C. 2923.13(A)(2), and the

legislature’s determination that a juvenile adjudication may support a count of having

weapons while under disability does not violate a defendant’s due process rights.”); State

v. St. Jules, 2d Dist. Montgomery No. 27405, 2017-Ohio-7941, ¶ 9 (“We decline to
                                                                                            -4-

reconsider our conclusion that Hand does not apply to R.C. 2923.13(A)(2) and that the

use of a juvenile adjudication to support a count of having weapons while under disability

does not violate a defendant’s due process rights.”). We see no reason to depart from the

foregoing cases, which we continue to believe were decided correctly and which are

dispositive of Herron’s argument.1

       {¶ 8} For the foregoing reasons, we overrule Herron’s assignment of error and

affirm the judgment of the Montgomery County Common Pleas Court.

FROELICH, J., concurs.

DONOVAN, J., dissenting.

       {¶ 9} Herron’s prior adjudication of delinquency, which can now be utilized as an

element of the offense to establish weapons while under disability, suffers from the same

constitutional infirmity as an enhancement. At the heart of the analysis in Hand is the lack

of a right to a jury determination of the predicated conduct. In this case, status (disability)

creates the offense; in Hand status enhances punishment.

       {¶ 10} I agree with Judge Cunningham’s dissent in State v. Carnes, 2016-Ohio-

8019, 75 N.E.2d 774 (1st Dist.), it is illogical to conclude enhancement of punishment is

unconstitutional, but prosecution where otherwise there would be no indictment is not. In

all other scenarios, the status of disability is conduct which occurs as an adult. The

juvenile vs. adult conduct distinction is critical to the constitutional analysis, particularly



1 We recognize that on September 13, 2017, the Supreme Court of Ohio accepted a
jurisdictional appeal in State v. Carnes, Ohio Sup.Ct. No. 2017-0087, to address whether
juvenile adjudications can satisfy elements of an offense committed as an adult. See
09/13/2017 Case Announcements # 2, 2017-Ohio-7567. We deny Herron’s request in his
reply brief to stay further proceedings pending the Ohio Supreme Court’s resolution of
Carnes.
                                                      -5-

under the Ohio Constitution as noted in Hand.

      {¶ 11} I would reverse.

                                      .............



Copies mailed to:

Michael J. Scarpelli
Terrence K. Scott
Hon. Barbara P. Gorman
