State v. Parker

1

2023-Ohio-2127

STATE OF OHIO Plaintiff-Appellant v. RAVEN PARKER Defendant-Appellee

No. 23CA00009

Court of Appeals of Ohio, Fifth District, Licking

June 26, 2023

Appeal from the Licking County Court of Common Pleas, Case No. 22 CR 317

For Plaintiff-Appellant:

JENNY WELLS

LICKING CO. PROSECUTOR

MICHAEL D. SWARTZ

For Defendant-Appellee:

PRIYA TAMILARASAN

JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.

OPINION

Delaney, J.

{¶1} Appellant state of Ohio appeals from the January 27, 2023 Decision and Entry Granting Defendant's Motion to Dismiss of appellee Raven Parker.

FACTS AND PROCEDURAL HISTORY

{¶2} The following facts are adduced from appellant's bill of particulars filed June 9, 2022.

{¶3} This case arose on May 3, 2022, when Officers DeJesus and Breuninger of the Pataskala Police Department traffic-stopped a vehicle driven by appellee, the sole occupant. Officers observed the vehicle had one functioning headlight and the license plate was resting in the back window. Dispatch advised the officers that appellee had an active warrant "for possession" from Portage County.

{¶4} Appellee consented to a search of her vehicle and officers found a loaded handgun in the passenger glove compartment.

{¶5} On May 12, 2023, appellee was charged by indictment with one count of having weapons while under disability pursuant to R.C. 2923.13(A)(1), a felony of the third degree [Count I] and one count of improperly handling firearms in a motor vehicle pursuant to R.C. 2923.16(B), a felony of the fourth degree [Count II]. The indictment also contains a firearm forfeiture specification pursuant to R.C. 2981.02(A)(1)(C) and R.C. 2941.1417(A).

{¶6} Appellee entered pleas of not guilty.

{¶7} On November 30, 2022, appellee filed a motion to dismiss, arguing that pursuant to New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S.Ct.2111, 2126, 213 L.Ed.2d 387 (2022), "her conduct was constitutionally protected and R.C. 2923.13(A)(1) and R.C. 2923.16(B) are an unjust infringement of those protections as they are inconsistent with the text and historical understanding of the Second Amendment." Motion to dismiss, 2.

{¶8} On November 30, 2022, the trial court journalized a "Scheduling Order and Hearing Notice," noting that a change-of-plea and sentencing hearing formerly scheduled for November 30, 2022 was canceled; appellant was ordered to respond to appellee's motion to dismiss on or before December 14, 2022, and appellee was ordered to reply on or before December 28, 2022. The order further notes that "a Non-Oral Hearing on the Defendant's Motion to Dismiss is scheduled for December 30, 2022 at 4:30 p.m." (Emphasis in original).

{¶9} Appellant asked for an extension of time to respond to appellee's motion to dismiss and the trial court extended appellant's response deadline to December 28, 2022.

{¶10} Appellant filed a memorandum in opposition on December 29, 2022, arguing appellee was constitutionally prevented from possessing a firearm while a fugitive from justice. Memorandum, 5. The memorandum asserts appellee "had an active warrant for drug possession, and she admitted knowing she was a fugitive from justice." Id. at 7.

{¶11} On January 11, 2023, appellee replied to appellant's memorandum in opposition.

{¶12} On January 27, 2023, the trial court journalized its Decision and Entry Granting Defendant's Motion to Dismiss, finding that Count I is predicated upon appellee being a" 'fugitive from justice' based on the fact that a warrant was issued for her arrest by another county." Decision, 3. The trial court noted appellant could not provide a case similar to the circumstances here, in which the accused is not a convicted felon:

** * *. The Defendant here is charged with Having a Weapon While Under Disability and Improperly Handling a Firearm in a Motor Vehicle. Her status as a "fugitive from justice" is based on the existence of a warrant out of Portage County. The State has offered nothing in terms of why the warrant was issued; when it was issued; or in connection with what charge.

The State has relied on several decisions that have concluded convicted felons are appropriately disqualified from having weapons. However, it has failed to present any case adequately addressing those who are simply alleged to have committed a crime or have a warrant. * * * *.

** * *. Because it is the State's burden to demonstrate that laws like R.C. 2923.13(A)(1) and R.C. 2923.16(B) were part of the historical tradition of the Second Amendment, that failure is fatal particularly in a case like this, where there is nothing in the record to support the conclusion that [appellee] is a dangerous person merely because a court issued a warrant for her arrest; or that she was a particular danger because of her proximity to the weapon in her vehicle.

** * *.

{¶13} The trial court thereupon granted appellee's motion to dismiss Counts I and II.

{¶14} Appellant now appeals from the trial court's judgment entry of January 27, 2023.

{¶15} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶16} "THE TRIAL COURT ERRED BY DETERMINING THAT ALL FUGITIVES ARE 'LAW ABIDING CITIZENS' ENTITLED TO POSSESS FIREARMS ON THEIR PERSON AND WITHIN MOTOR VEHICLES, RULING R.C. 2923.13(A)(1) AND R.C. 2923.16(B) UNCONSTITUTIONAL AS APPLIED TO FUGITIVES."

ANALYSIS

{¶17} In its sole assignment of error, appellant argues the trial court erred in granting appellee's motion to dismiss. We disagree.

{¶18} Crim.R. 12 empowers trial courts to rule on "any defense, objection, evidentiary issue, or request that is capable of determination without the trial of the general issue." Crim.R. 12(C). In conducting this pretrial review, courts may look to "evidence beyond the face of the indictment." State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, at ¶ 18. However, a Crim.R. 12 ruling may not decide "what would be the general issue at trial." Id.

{¶19} Under Crim.R. 12(C)(2), trial courts may judge before trial whether an indictment is defective. State v. Palmer 131 Ohio St.3d 278, 2012-Ohio-580, 964 N.E.2d 406, ¶ 23. An indictment may be defective if it alleges violations of a statute by a person who is not subject to that statute and there is no set of circumstances under which such a person can violate the law's requirements. See, Palmer, id. Therefore, dismissal is appropriate. Id.

{¶20} This Court reviews a trial court's decision granting a defendant's motion to dismiss based upon a constitutional challenge to the statute de novo. State v. Baum, 5th Dist. No. 2020CA00004, 2020-Ohio-5268, 162 N.E.3d 182, ¶ 12, internal citations omitted.

{¶21} Appellee was charged with one count of having weapons while under disability pursuant to R.C. 2923.13(A)(1), which states, "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 * * *[t]he person is a fugitive from justice." A "fugitive from justice" is a person who (1) is suspected of or has been convicted of a crime; (2) is sought by the jurisdiction so that he may be subjected to its criminal system and (3) has left the jurisdiction and is found within the boundaries of another. State v. Hall, 5th Dist. Stark No. 2004CA00174, 2005-Ohio-167, ¶ 14, citing State v. Adkins, 80 Ohio App.3d 817, 821, 610 N.E.2d 1143 (9th Dist.1992).^[1]

{¶22} Appellee was also charged with one count of improper handling of firearms in a motor vehicle pursuant to R.C. 2923.16(B), which states, "No person shall knowingly transport or have a loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the operator or any passenger without leaving the vehicle."

{¶23} Appellee moved to dismiss the indictment on the grounds that the charges are unconstitutional as applied to her pursuant to New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S., 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). A party may challenge the constitutionality of a statute with either a facial challenge or an as-applied challenge. Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 26. A facial challenge asserts that there is no conceivable set of circumstances in which the statute would be valid. Id. An as-applied challenge, on the other hand, alleges that application of the statute in a particular factual context is unconstitutional. Yajnik v. Akron Dept. of Health, Hous. Div., 101 Ohio St.3d 106, 2004-Ohio-357, 802 N.E.2d 632, ¶ 14, citing Ada v. Guam Soc. of Obstetricians & Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Scalia, J., dissenting). A holding that a statute is unconstitutional as applied prevents future application of the statute in a similar context, but it does not render the statute wholly inoperative. Yajnik at ¶ 14, citing Ada (Scalia, J., dissenting).

{¶24} When a statute is challenged only as applied to the circumstances of the case, the defendant "contends that application of the statute in the particular context in which he has acted, or in which he proposes to act, [is] unconstitutional." State v. Baum, 5th Dist. No. 2020CA00004, 2020-Ohio-5268, 162 N.E.3d 182, ¶ 15, citing State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512. An as-applied "challenge focuses on the particular application of the statute." State v. Carrick, 131 Ohio St.3d 340, 2012-Ohio-608, 965 N.E.2d 264.

{¶25} Appellee asserted the revised code sections are unconstitutional as applied to her. In Bruen, the United States Supreme Court held the following:

When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To

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