State v. KingState v. King
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 19, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-23-677331-A and CR-23-682887-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, Tasha L. Forchione and Erica Sammon, Assistant Prosecuting Attorneys, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and Robert McCaleb, Assistant Public Defender, for appellant.
FRANK DANIEL CELEBREZZE, III, J.:
{¶ 1} Defendant-appellant Myles King, Jr. (“King“) brings the following appeal challenging the trial court‘s denial of his motion to dismiss his indictment
I. Factual and Procedural History
{¶ 2} On January 10, 2023, King was indicted in Cuyahoga C.P. No. 23-677331 (“the first case“) for a single count of having weapons while under disability (“HWWUD“) in violation of
{¶ 3} On March 29, 2023, King filed a motion to dismiss the indictment based on the constitutionality of
{¶ 4} The State opposed King‘s motion to dismiss and filed documents pertaining to King‘s juvenile adjudications under seal.
{¶ 5} The court held a hearing on King‘s motion to dismiss on June 13, 2023. During the hearing, King restated the arguments pertaining to the disabling juvenile offense and noted that the court could find that the HWWUD statute is facially unconstitutional or could sustain King‘s as-applied constitutional challenge and find
{¶ 6} The State countered that King did not have standing to bring his claims because he did not challenge “the relief from disability statute” pursuant to
{¶ 7} The State refiled the case and on July 14, 2023, King was reindicted in Cuyahoga C.P. No. 23-682887 (“the refiled case“) for a single count of HWWUD in violation of
{¶ 8} King filed a motion to dismiss that was identical to the motion to dismiss filed in the first case. The State filed a motion to incorporate the record from the first case into the record into the refiled case that the court granted.
{¶ 9} The parties convened for trial on October 30, 2023. The trial court orally denied the pending motion to dismiss, and the State moved to continue the trial because some evidence was still outstanding, and the court agreed to move the trial. When the parties reconvened for the new trial on November 6, 2023, King entered a no-contest plea to the indictment.
- On December 30, 2022, Cleveland Police responded to 4701 Broadview Road in Cleveland Oh[io], located in Cuyahoga County to execute a search warrant.
- While executing the search warrant a Mossberg rifle was found inside of Myles King‘s home in his possession. A Mossberg rifle is not a pistol.
- On or about November 17, 2015, Myles King was adjudicated delinquent of domestic violence[,] a felony of the fourth degree in Cuyahoga County Court of Common Plea[s] juvenile division case no. DL-15-110889[,] which if committed by an adult would have been a felony of violence.
- On December 30, 2022, Myles King was twenty[-]one years old.
- On December 30, 2022, Myles King was not a fugitive from justice, was not under indictment for a violent or drug felony [sic], was not drug or alcohol dependent, had not been adjudicated mentally incompetent, had no prior felony convictions of violence or trafficking and has only one juvenile adjudication[] that would have been adult felonies of trafficking or violence as stated previously, DL-15-110889.
{¶ 11} The trial court found King guilty and ordered King to forfeit the rifle. King was sentenced to community control for one and a half years.
{¶ 12} King appeals the denial of his motion to dismiss the indictment as violative of his constitutional rights. He assigns the following two errors for our review:
- The trial court erred in denying Mr. King‘s motion to dismiss because
R.C. 2923.13(A)(2) violates the Second Amendment on its face. - The trial court erred in denying Mr. King‘s motion to dismiss because
R.C. 2923.13(A)(2) violates Article I, Section 4, of the Ohio Constitution on its face.
{¶ 13} King‘s first assignment of error contends that
{¶ 14} A trial court‘s decision on a motion to dismiss an indictment is reviewed under a de novo standard of review. State v. Knox, 2016-Ohio-5519, ¶ 12 (8th Dist.). Moreover, whether a statute is unconstitutional is a question of law that is reviewed de novo. Cleveland v. State, 2019-Ohio-3820, ¶ 15, citing Crutchfield Corp. v. Testa, 2016-Ohio-7760, ¶ 16. We are mindful that statutes carry a strong presumption of constitutionality. Sorrell v. Thevenir, 69 Ohio St.3d 415, 419, (1994), citing State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus.
{¶ 15} The challenged statute in this case,
[u]nless 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.
{¶ 17} A facial challenge to a statute is much more difficult to overcome than an as-applied challenge because, generally, for a statute to be found unconstitutional, “it must be [found] unconstitutional in all applications.” (Emphasis added.) State v. Romage, 2014-Ohio-783, ¶ 7, citing Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership, 2009-Ohio-5030, ¶ 13. In other words, it must be shown that there is no set of facts under which the statute would be valid. Romage at id. Extrinsic facts are not needed to determine whether a statute is facially unconstitutional. Reading v. PUC, 2006-Ohio-2181, ¶ 15. This takes any “personalization” that King may rely on out of this case, i.e., under a facial challenge, these specific facts relative to King‘s case that are not discernable from the plain text of the statute being challenged are irrelevant to our analysis, including: (1) that the weapon was a rifle versus a handgun, (2) that the search warrant was executed for an animal protection complaint, (3) that the rifle was in King‘s home rather than on his person, in public, and (4) that King‘s “disability” was premised on a juvenile adjudication rather than an adult conviction.
{¶ 18} King‘s facial challenge focuses on the portion of
{¶ 19} Initially, we note that the only other Ohio district to decide this issue at the time of this writing has been the Fifth District, in State v. Windland, 2024-Ohio-1760 (5th Dist.), appeal not accepted, 2024-Ohio-2927. The Windland Court found, under a plain-error review, that
{¶ 20} The Supreme Court of Ohio has previously held that
{¶ 21} Windland‘s analysis, in finding
{¶ 22} We agree.
{¶ 23} Nearly 216 years after the Bill of Rights to the United States Constitution was ratified, the U.S. Supreme Court identified a constitutionally protected right within the Second Amendment, to “possess a firearm unconnected with service in a militia for traditionally lawful purposes, such as self-defense within
{¶ 24} Two years after Heller, the U.S. Supreme Court recognized that the Fourteenth Amendment to the United States Constitution incorporated the Second Amendment right that was recognized in Heller, “to keep and bear arms for the purpose of self-defense” to the states. McDonald v. Chicago, 561 U.S. 742 (2010).
{¶ 25} Relevant here, the Heller Court unambiguously cautioned that “nothing in [Heller] should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” Id. at 636. (Emphasis added.) In McDonald, a plurality of the Supreme Court repeated this exact sentiment from Heller. Id. at 786.
{¶ 26} The next landmark U.S. Supreme Court case dealing with the Second Amendment protections did not occur until New York State Rifle & Pistol Assn. v. Bruen, 597 U.S. 1 (2022). Bruen extended the individual right to own a handgun for self-defense to outside of the home and clarified that the proper test for determining whether a law is violative of the Second Amendment protections is a two-pronged analysis. Id. at 8-22. Under the first prong, “when the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct.” Id. at 17. Then, if it is determined that the plain text of Second
{¶ 27} In June 2024, the U.S. Supreme Court offered some clarification for its holding in Bruen in United States v. Rahimi, ___ U.S. ___, 144 S.Ct. 1889 (2024). Relevant to this case, Rahimi held that “[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” Id. at 1903. Rahimi was released after the Fifth District‘s Windland decision but reaffirms the Windland Court‘s reliance on the progeny and historical analysis of various federal courts that found
{¶ 28} We are cognizant of King‘s argument that
{¶ 29} In addition to the above authority, Bruen itself contains authority upon that we may comfortably rely. Bruen cites to a decree from 1866 in South Carolina which provided that “no disorderly person, vagrant, or disturber of the peace, shall be allowed to bear arms.” Id., 597 U.S. at 63. In the next sentence, Bruen discusses newspaper editors who borrowed language from a Freedmen‘s Bureau circular who maintained that “‘[a]ny person, white or black, may be disarmed if convicted of making an improper or dangerous use of weapons[.]‘” Id. Notably, these are not limited to adults and it is undisputed that juveniles may pose a threat to the safety of another. Indeed, this is the reason that there are age restrictions on purchasing and owning deadly weapons, with some specific exceptions. See, e.g.,
{¶ 30} Notwithstanding, we briefly address King‘s argument that juvenile adjudications should be viewed as separate and distinct from an adult conviction such that it should not constitute a disabling offense for purposes of the HWWUD statute. King cites to the goals of juvenile courts as well as the fact that juvenile cases are not tried before juries.
{¶ 31} These arguments mirror those of the dissenting opinion in Carnes, 2018-Ohio-3256 (O‘Conner, C.J., dissenting). The author of the dissenting opinion was “vexed” that the General Assembly had not taken steps to change the portion of
{¶ 32} Even viewing these arguments in light of Bruen‘s instruction, we note that these arguments go to the culpability and rehabilitative nature of juvenile offenses; they do not specifically relate to “the history and tradition of firearms regulation” and can coexist with the holding in Rahimi — that it is not violative of the Second Amendment to temporarily disarm those who pose a threat to the physical safety of others, regardless of the predicating “event” or age of the offender at the time of the predicating event.
{¶ 33} Based on the foregoing discussion, we cannot say that
{¶ 34} We next address King‘s second assignment of error, which mirrors the argument in his first assignment of error, but that
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.
{¶ 35} In analyzing
the United States Constitution now equally protects the right of the individual to bear arms, we see no obvious distinction between the Ohio Constitution and the United States Constitution. For the reasons stated in our consideration of Appellant‘s claims under the United States Constitution, we find Appellant has not demonstrated
R.C. 2923.13(A)(3) is obviously unconstitutional under the Ohio Constitution, and we therefore find no plain error.
Windland, 2024-Ohio-1760, at ¶ 24, quoting Jenkins at ¶ 28; see also State v. Jones, 2024-Ohio-2959, ¶ 22 (3d Dist.).
{¶ 36} Windland expanded this analysis to its finding that
{¶ 37} King argues that the Supreme Court of Ohio, in Arnold, 67 Ohio St.3d 35, 46 (1993), explicitly held that “Article I, Section 4 conveys broader protections on firearms rights than the Second Amendment.” Relevant to this case, Arnold explicitly held that the Ohio Constitution was broader in this respect, and particularly cited to the portion of Article I, Section 4 that provides for an individual right to bear arms for defense and security. Arnold noted that the specific addition of the phrase “for defense and security” was “obviously implemented to allow a person to possess certain firearms for defense of self and property.” Id. at 43. At
{¶ 38} The Supreme Court of Ohio has not explicitly spoken on whether, in the wake of Heller, McDonald, Bruen, and Rahimi, Article I, Section 4 offers broader protections than the Second Amendment.2 But, it is indisputable that Arnold predates the aforementioned cases and that the U.S. Supreme Court cases since Arnold have established that the Second Amendment‘s protections extend to individual rights to ownership of certain firearms for the purpose of self-defense both inside and outside of the home.
{¶ 39} It does appear, therefore, that the “broader” distinction has been abrogated by these decisions, as Jenkins and Windland have concluded. Based on the foregoing, we conclude that there is no distinction between the protections of
{¶ 40} Accordingly, we incorporate our analysis from King‘s first assigned error and overrule King‘s second assignment of error.
III. Conclusion
{¶ 41} The trial court did not err in denying King‘s motion to dismiss because
{¶ 42} Judgment 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK DANIEL CELEBREZZE, III, JUDGE
EILEEN T. GALLAGHER, J., CONCURS;
LISA B. FORBES, P.J., CONCURS IN JUDGMENT ONLY