State v. Jeter

174 N.E.3d 1262

STATE of Ohio, Plaintiff-Appellee,

v.John P. JETER Jr., Defendant-Appellant.

No. 19 JE 0016

Court of Appeals of Ohio, Seventh District, Jefferson County.

June 30, 2021

Atty. Jane M. Hanlin, Prosecutor, Atty. Frank Bruzzese, Assistant Prosecutor, 16001 State Route 7, Steubenville, Ohio 43952, for Plaintiff-Appellee.

Atty. Alexander Keane, P.O. Box 92, Canfield, Ohio 44406, for Defendant-Appellant.

BEFORE: Carol Ann Robb, Gene Donofrio, David A. D'Apolito, Judges.

OPINION AND JUDGMENT ENTRY

Robb, J.

{¶1} Defendant-Appellant John Jeter Jr. appeals the decision of Jefferson County Common Pleas Court finding him guilty of having weapons while under disability, discharging a firearm on or near prohibited premises with an attendant firearm specification, and tampering with evidence. The issue in this case is whether the attendant firearm specification to the discharging a firearm on or near a prohibited premises conviction is unconstitutional as applied because having a firearm is an element of the underlying felony. This constitutional argument is being raised for the first time on appeal and as such, we could decline to address it. However, in this instance, we choose to exercise our discretion and address the merits of the argument. For the reasons expressed below, the attendant firearm conviction is affirmed. The attendant firearm specification statute is not unconstitutional as applied.

Statement of the Case and Facts

{¶2} The state agreed with Appellant's statement of the case and facts, which is included below.

{¶3} Appellant was indicted for having weapons while under disability, a third-degree felony in violation of R.C. 2923.13(A)(3)(B) ; carrying a concealed weapon, a fourth-degree felony in violation of R.C. 2923.12(A)(2)(F)(1) ; discharging of a firearm on or near prohibited premises, a third-degree felony in violation of R.C. 2923.162(A)(3)(C)(2) ; and tampering with evidence, a third-degree felony in violation of R.C. 2921.12(A)(1). 12/1/15 Indictment. The carrying a concealed weapon and discharge of a firearm on or near prohibited premises both had attendant firearm specifications. 12/2/15 Indictment.

{¶4} The indictment arose from events that occurred on October 24, 2015. Between 3:00 a.m. and 4:00 a.m. of that date, a firearm was discharged near Club 106 in Steubenville, Ohio. Trial Tr. 137-138. The suspected shooter was described as an African-American shirtless male traveling south from Club 106 towards Slack Street. Trial Tr. 143. State Trooper Trevor Koontz observed Appellant, who fit that description, not too far from where the shots had been fired. Trial Tr. 139, 144. Appellant was arrested and following his arrest, a firearm was found in the area where the officer encountered Appellant. Trial Tr. 264.

{¶5} The case proceeded to trial and at trial there were many stipulations. The parties stipulated a gun was found in the grass in the vicinity of the apartments known as 404 South Sixth Street and 406 South Sixth Street between the hours of 3:00 a.m. and 4:00 a.m. Trial Tr. 132. It was also stipulated that this was the firearm that was discharged between 3:00 a.m. and 4:00 a.m. of that morning, and the firearm had one round in the chamber and one round in the magazine. Trial Tr. 133-134, 135. Testing revealed Appellant's DNA was on the trigger of the gun; both of Appellant's hands tested positive for gunshot residue. Trial Tr. 135, 229.

{¶6} Shell casings were found on and near the sidewalk across the street from Club 106. Trial Tr. 271. Testing revealed these shell casings were fired from the gun that was found in the grass in the vicinity of the apartments known as 404 South Sixth Street and 406 South Sixth Street. Trial Tr. 205-206. The parties stipulated the streets (Sixth Street and South Street) across from Club 106 are public roads. Trial Tr. 133. They also stipulated Appellant was under legal disability to possess a firearm. Trial Tr. 97-98.

{¶7} The jury found Appellant guilty of having a weapon while under disability, discharging a firearm on or near prohibited premises with the attendant firearm specification, and tampering with the evidence. 4/19/16 Jury Verdict Forms. He was found not guilty of carrying a concealed weapon. 4/19/16 Jury Verdict Form.

{¶8} Appellant was sentenced to an aggregate 12-year sentence. 5/12/16 J.E.; 5/9/16 Sentencing Tr. 22. He received 36 months each for having a weapon while under disability, discharging of a firearm on or near prohibited premises, and tampering with evidence. Those sentences were ordered to run consecutive to each other. As to the firearm specification attached to the discharging of a firearm on or near prohibited premises, Appellant was sentenced to 3 years. 5/12/16 J.E. That sentence was ordered to be served first and consecutive to all other sentences. 5/12/16 J.E.

{¶9} Appellant appealed his convictions.

Waiver

{¶10} Prior to addressing the assignments of error, we must first address the state's waiver argument. Appellant's appeal seeks to have his conviction for the firearm specification attached to the discharging a firearm on or near a prohibited premise vacated. He contends it is unconstitutional for him to be convicted and sentenced for an attendant firearm specification where having a firearm is an essential element of the underlying offense. He asserts "allowing additional punishment based upon pre-existing essential element produces an unintended, unreasonable, and unjust result."

{¶11} Appellant did not raise his constitutional arguments to the trial court; they are raised for the first time on appeal. The state asserts the general rule is an appellate court will not consider any error that could have been raised to the trial court but was not.

{¶12} Recently, the Eleventh Appellate District has explained:

"Failure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state's orderly procedure, and therefore need not be heard for the first time on appeal." State v. Awan , 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus. The Awan waiver doctrine, however, "is discretionary." In re M.D. , 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus. "Even where waiver is clear, [an appellate] court reserves the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it." Id. ; State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16 ("this court has discretion to consider a forfeited constitutional challenge to a statute * * * [where] but for a plain or obvious error, the outcome of the proceeding would have been otherwise, and reversal must be necessary to correct a manifest miscarriage of justice").

State v. Stanley , 11th Dist. Lake No. 2020-L-065, 2021-Ohio-108, 2021 WL 168593, ¶ 14.

{¶13} Thus, it is within this court's discretion to decide whether or not to address the constitutional issue raised. In this instance, we elect to exercise our discretion and review the arguments. In doing so, we acknowledge that if the arguments are meritorious, the error would constitute plain error because the outcome would be different.

First and Second Assignment of Error

"The firearm specification, under R.C. 2941.145, is unconstitutional as applied to Jeter because it arbitrarily subjects him to additional mandatory and consecutive prison time for an essential element of the underlying felony charge of discharging a firearm over a public highway."

"The firearm specification under R.C. 2941.145 should not apply to an underlying felony of discharging a firearm on or near a prohibited premise because an additional punishment for an essential element of the underlying felony is an absurd result under statutory interpretation."

{¶14} Appellant sets forth as unconstitutional an applied argument; he contends R.C. 2941.145 (firearm specification statute) as applied to him in this situation is unconstitutional. He was convicted of violating R.C. 2923.162(A)(3) which states that no person shall discharge a firearm upon or over a public road or highway. Appellant was also convicted of the attendant firearm specification in violation of R.C. 2941.145. Appellant asserts that since a violation of discharging a firearm over a public road requires the use of the firearm (the firearm is an essential element of the offense) there was no way to commit the offense without the use of a firearm. Therefore, every conviction of discharging a firearm over a public road would support a conviction for a firearm specification. Appellant presents both a strict scrutiny and rational basis argument. He contends that under either test, the penalty for the firearm specification violates due process. As to strict scrutiny, he contends the penalty enhancement violates his due process because "the application of a firearm specification to an underlying felony is not narrowly tailored because it overreaches to statutes which already carry out that interest." Appellant Brief 11. As to rational basis, Appellant acknowledges that the state has a legitimate interest in deterring the use of firearms in the commission of crimes, but in this instance there is no rational relationship between the legitimate state interest and firearm specification. Appellant's Brief 11. He contends the legitimate state interest is already achieved by R.C. 2923.162, which criminalizes the discharge of a firearm over public roads.

{¶15} The state counters, arguing statutes are presumed constitutional and Appellant has failed to negate every conceivable basis for the legislation. The state acknowledges that the issue of whether a firearm specification's sentencing enhancement is an unconstitutional violation of the due process clause has not been decided by the Ohio Supreme Court or any Ohio Appellate Court.

{¶16} The state dir...