State v. JohnsonState v. Johnson
APPEARANCES:
Kenneth J. Rexford for Appellant
Jana E. Emerick for Appellee
O P I N
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
Background
{¶2} On February 14, 2019, Johnson was indicted for Having Weapons While Under Disability in violation of
{¶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
{¶4} Here, Johnson challenged the constitutionality of
{¶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
{¶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
{¶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
{¶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
Assignment of Error No. 1
The Trial Court should have dismissed Count I because
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;
{¶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
{¶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 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
{¶21} Since the Heller decision, a number of Ohio Appellate Courts have applied an intermediate level of scrutiny to
{¶22} “In applying the intermediate scrutiny standard to legislation that regulates the
{¶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
{¶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
{¶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,
{¶27} In this case, Johnson was charged with Having Weapons While Under Disability in violation of
(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
{¶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
{¶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.
{¶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 (1980), quoting Barrett v. United States, 423 U.S. 212, 218 (1976). The court in Carnes further held that, “[i]nherent in
{¶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
{¶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
{¶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
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 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
{¶38} According to
{¶39} Nevertheless, although a violation of
{¶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
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 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.)
{¶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,
{¶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 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 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
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 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 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, 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
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.
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