[Cite as State v. Jeter, 2021-Ohio-2351.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

JEFFERSON COUNTY

STATE OF OHIO, 

Plaintiff-Appellee, 

v. 

JOHN P. JETER JR., 

Defendant-Appellant.

 

OPINION AND JUDGMENT ENTRY 

Case No. 19 JE 0016 

 

Criminal Appeal from the 

Court of Common Pleas of Jefferson County, Ohio 

Case No. 15 CR 163 

BEFORE: 

Carol Ann Robb, Gene Donofrio, David A. D’Apolito, Judges. 

JUDGMENT: 

Affirmed. 

Atty. Jane M. Hanlin, Prosecutor, Atty. Frank Bruzzese, Assistant Prosecutor, 16001 

State Route 7, Steubenville, Ohio 43952, for Plaintiff-Appellee and 

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

 

Dated: June 30, 2021 
 – 2 – 

Case No. 19 JE 0016

 

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 thirddegree 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 
 – 3 – 

Case No. 19 JE 0016

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. 
 – 4 – 

Case No. 19 JE 0016

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, ¶ 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 
 – 5 – 

Case No. 19 JE 0016

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. 
 – 6 – 

Case No. 19 JE 0016

{¶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 directs this court to federal case law on double jeopardy to help 

resolve the question. It cites the United States Supreme Court for the proposition that the 

double jeopardy clause does not prevent the government from attempting to prove 

violations of two different criminal statutes based on the same course of conduct provided 

that the legislature clearly intended to subject defendants to punishment for each of them. 

Here, the state asserts the Ohio General Assembly clearly intended to subject the 

defendants to punishment for each of them evidenced by the mandatory consecutive 

nature of firearm specifications. It additionally cites to Federal Circuit Court opinions 

where the firearm was an essential element of the underlying offenses and it was found 

there was no double jeopardy violation because there was clear legislative intent to 

provide cumulative punishment. 

{¶17} In addressing due process, the state indicates that Appellant must 

demonstrate that the statute lacks a rational basis, not that it satisfies the strict scrutiny 

test. It concludes the rational basis test applies because the sentencing enhancement 

does not burden a fundamental right or target a suspect class. In concluding the statute 

as applied does not violate the rational basis test, it focuses on legislative intent 

(discouraging and preventing the use of firearms in the commission of crimes of violence) 

and concludes a mandatory consecutive term for the firearm specification achieves that 

goal. 

{¶18} At the outset, it is noted that there is a strong presumption that statutes are 

constitutional. State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, ¶ 

25, citing State v. Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d 1056, ¶ 8 

and State v. Collier, 62 Ohio St.3d 267, 269, 581 N.E.2d 552 (1991). Furthermore, the 

issue before us has not been decided by the Ohio Supreme Court or any Ohio appellate 

court. The Ohio Supreme Court in White was asked to decide the issue using rational 

basis, but declined to address the constitutional issue because the issue before it could 
 – 7 – 

Case No. 19 JE 0016

be decided on another basis. State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 

N.E.3d 939, ¶ 28, 34 (finding the General Assembly did not intend the firearm specification 

to apply to a police officer who fired a gun issued to him to protect himself, fellow officers, 

and the public from a person he thought was about to brandish a weapon). 

{¶19} As stated above, Appellant asserts as unconstitutional an applied 

argument. A party may challenge a statute as unconstitutional on its face or as applied 

to a particular set of facts. State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 

512, ¶ 17. In an as-applied challenge, the challenging party “bears the burden of 

presenting clear and convincing evidence of a presently existing set of facts that make 

the statut[e] unconstitutional and void when applied to those facts.” Harrold v. Collier, 107 

Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 38. The challenging party contends 

that the application of the statute in the particular context in which he has acted, or in 

which he proposes to act, would be unconstitutional. Yajnik v. Akron Dept. of Health, 

Hous. Div., 101 Ohio St.3d 106, 2004-Ohio-357, 802 N.E.2d 632, ¶ 14. The practical 

effect of holding a statute unconstitutional as applied is to prevent its future application in 

a similar context, but not to render it completely inoperative. Id.

{¶20} We have previously explained there are two tests used to assess the 

constitutionality of a statute under the Due Process Clause: strict scrutiny or rational-basis 

scrutiny. State v. Kopras, 7th Dist. Jefferson No. 17 JE 0007, 2018-Ohio-2774, ¶ 54. 

Heightened scrutiny only applies in cases implicating a suspect classification or 

fundamental right. Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 880 N.E.2d 420, 

2007–Ohio–6948, ¶ 49 (“When reviewing a statute on due-process grounds, we apply a 

rational-basis test unless the statute restricts the exercise of fundamental rights.” ); In re 

D.C., 1st Dist. Hamilton No. C-180354, 2019-Ohio-4860, 149 N.E.3d 989, ¶ 32, citing 

State v. Ward, 92 Ohio App.3d 631, 633, 637 N.E.2d 16 (1st Dist.1993). 

{¶21} The state is correct that in reviewing the as applied argument for R.C. 

2941.154, the rational basis test is the applicable test. A suspect class is not at issue and 

neither is a fundamental right. See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 

307, 313, 96 S.Ct. 2562 (1976), quoting San Antonio Indep. School Dist. v. Rodriguez,

411 U.S. 1, 28, 93 S.Ct. 1278 (1973) (“[A] suspect class is one ‘saddled with such 

disabilities, or subjected to such a history of purposeful unequal treatment, or relegated 
 – 8 – 

Case No. 19 JE 0016

to such a position of political powerlessness as to command extraordinary protection from 

the majoritarian political process.’”). 

{¶22} A statute will be found valid under the rational basis test “[1] if it bears a real 

and substantial relation to the public health, safety, morals or general welfare of the public 

and [2] if it is not unreasonable or arbitrary.” (Internal quotations and citations omitted.) 

Id. While it is not enough under the rational-basis test for the government to just 

announce a noble purpose behind a statute, the statute will pass if it is reasonably related 

to any legitimate state purpose. Arrington v. DaimlerChrysler Corp., 109 Ohio St.3d 539, 

2006–Ohio–3257, 849 N.E.2d 1004, ¶ 38. The state has no obligation to produce any 

evidence to sustain the rationality of a statutory classification. State v. McKinney, 2015-

Ohio-4398, 46 N.E.3d 179, ¶ 22 (1st Dist.). Rather, the “party challenging the statute 

bears the burden to negate every conceivable basis that might support the legislation.” 

Id., quoting Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio St.3d 104, 2010-

Ohio-4908, 936 N.E.2d 944, ¶ 20. 

{¶23} The firearm specification, R.C. 2941.145, under these facts bears a real and 

substantial relation to the public safety. “Discouraging and preventing the use of firearms 

in the commission of crimes of violence constitutes a legitimate state purpose.” United 

States v. Khan, 461 F.3d 477, 495 (4th Cir.2006), as amended (Sept. 7, 2006). The Ohio 

Supreme Court has previously determined the offense of the discharging a firearm into a 

habitation and the attendant firearm specification are not required to merge. State v. 

Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, ¶ 16. The court explained 

the statutes for discharging a firearm into a habitation and the firearm specification “do 

not state that a defendant shall not use a firearm during the commission of a crime: they 

state that when a firearm is used, an additional penalty will be imposed.” Id. (indicating 

firearm specification is a sentencing enhancing penalty). The Ohio Supreme Court has 

also stated in the context of sentencing enhancements for multiple OVI convictions within 

a stated period of time has indicated that such enhancements are “rationally related to 

the protection of the public and punishment of offenders and therefore do not violate equal 

protection.” State v. Klembus, 146 Ohio St.3d 84, 2016-Ohio-1092, 51 N.E.3d 641, ¶ 1-

2. Considering the merger rationale and the statement in Klembus, the state has a 

legitimate interest to deter the use of a firearm in the commission of offenses due to the 
 – 9 – 

Case No. 19 JE 0016

amount of damage and loss of life that can be inflicted from the use of a firearm. Likewise, 

an additional sentence for use of a firearm in the commission of the offense is rationally 

related to the legitimate purpose. 

{¶24} The firearm specification in this situation does not lead to an unreasonable, 

or arbitrary result. Appellant admits that the Ohio Supreme Court has held that firearm 

specifications do not apply to all crimes involving the use of firearms. Appellant Brief 13, 

citing State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, ¶ 2 (General Assembly did not 

intend firearm specification to apply to on-duty police officers.). However, he asserts that 

because the underlying felony of discharging a firearm over a public road already requires 

use of a firearm, “allowing additional punishment based upon pre-existing essential 

element produces an unintended, unreasonable, and unjust result.” Appellant Brief 14. 

{¶25} There are provisions in the revised code prohibiting receiving a sentence 

for an attendant firearm specification. For instance, the language of R.C. 

2929.14(B)(1)(e) states: 

The court shall not impose any of the prison terms described in division 

(B)(1)(a) of this section or any of the additional prison terms described in 

division (B)(1)(c) of this section upon an offender for a violation of section 

2923.13 of the Revised Code unless all of the following apply: 

(i) The offender previously has been convicted of aggravated murder, 

murder, or any felony of the first or second degree. 

(ii) Less than five years have passed since the offender was released from 

prison or post-release control, whichever is later, for the prior offense. 

R.C. 2929.14(B)(1)(e). 

{¶26} In fact, this provision was specifically applicable in the case at hand. R.C. 

2923.13 is the statute for having weapons while under disability. Section (B)(1)(a) 

addresses firearm specifications. Appellant here was found guilty of violating R.C. 

2923.13 and the state indicated on the record that there is no additional prison time for 

the attendant specification. Sentencing Tr. 3. This is based on the language of R.C. 

2929.14(B)(1)(e) because the additional factors allowing for a sentence for the attendant 

firearm specification were not present. 
 – 10 – 

Case No. 19 JE 0016

{¶27} R.C. 2929.14 specially deals with carrying a concealed weapon and having 

a weapon while under disability and when sentences can be received for attendant 

firearm specifications for those crimes. The legislature, however, did not add a similar 

provision for firearm specifications for discharging a firearm on or near a prohibited 

premise in violation of R.C. 2923.162(A)(3)(C)(2). Clearly, it could have and the 

provisions prohibiting sentences for firearm specification for other crimes indicate it knew 

how to make such prohibitions. The provision of R.C. 2929.14(B)(1)(e) may have been 

enacted at a different time than the crime for violating R.C. 2923.162(A)(3), discharging 

a firearm upon or over a public road or highway. However, the General Assembly 

exceptions created in R.C. 2929.14(B)(1)(e) indicate it knew how to add provisions 

limiting firearms specification sentences and it could have made amendments to prohibit 

a firearm specification in this instance, but it did not do so. 

{¶28} Furthermore, it is noted R.C. 2929.14(B)(1)(e) provides circumstances 

where an attendant firearm specification sentence can occur with a having a weapon 

while under disability sentence. This further demonstrates firearm specifications have a 

“real and substantial relation” to public safety and indicates the result is not unreasonable. 

The General Assembly considered the crimes and when firearm specifications can be 

attached and further the state’s legitimate purpose. 

{¶29} In conclusion, we invoke our discretion to consider the merits of the 

arguments raised. However, we conclude the firearm specification statute is not 

unconstitutional as applied to these facts. The convictions are affirmed. 

Donofrio, P J., concurs. 

D’Apolito, J., concurs. 
[Cite as State v. Jeter, 2021-Ohio-2351.]

 

 

For the reasons stated in the Opinion rendered herein, the assignments of error

are overruled and it is the final judgment and order of this Court that the judgment of the

Court of Common Pleas of Jefferson County, Ohio, is affirmed. Costs waived. 

A certified copy of this opinion and judgment entry shall constitute the mandate in 

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a 

certified copy be sent by the clerk to the trial court to carry this judgment into execution. 

NOTICE TO COUNSEL 

This document constitutes a final judgment entry.