[Cite as State v. Boyer, 2017-Ohio-4199.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT

CLARK COUNTY 

STATE OF OHIO 

Plaintiff-Appellant

v. 

ALEXANDER D. BOYER 

Defendant-Appellee

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Appellate Case No. 2016-CA-63 

Trial Court Case No. 2016-CR-0160 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 9th day of June, 2017. 

. . . . . . . . . . . 

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Prosecuting Attorney, Clark 

County Prosecutor’s Office, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 

45502 

 Attorney for Plaintiff-Appellant 

 

KATHERINE R. ROSS-KINZIE, Atty. Reg. No. 0089762, Assistant State Public Defender, 

250 East Broad Street, Suite 1400, Columbus, Ohio 43215 

 Attorney for Defendant-Appellee 

. . . . . . . . . . . . . 

TUCKER, J. 
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{¶ 1} Plaintiff-appellant, the State of Ohio, appeals from the trial court’s dismissal 

of the second count of an indictment against Defendant-appellee, Alexander D. Boyer. 

The State argues that the trial court erred by dismissing the count—a charge of having 

weapons while under disability in violation of R.C. 2923.13(A)(2)—in reliance on the Ohio 

Supreme Court’s decision in State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 

N.E.3d 448. We find that the dismissal is not warranted by the Hand decision, and we 

therefore reverse. 

I. Facts and Procedural History 

{¶ 2} On April 4, 2016, a Clark County grand jury issued a three-count indictment 

against Boyer, charging him with: Count 1, felonious assault in violation of R.C. 

2903.11(A)(2); Count 2, having weapons while under disability in violation of R.C. 

2923.13(A)(2); and Count 3, attempted murder in violation of R.C. 2903.02(A). Boyer 

was arrested three days later and entered a plea of not guilty on all counts at his 

arraignment. 

{¶ 3} R.C. 2923.13(A)(2) prohibits a person from “knowingly acquir[ing], hav[ing], 

carry[ing], or us[ing] any firearm or dangerous ordnance” if the person “is under indictment 

for or has been convicted of any felony offense of violence” or if the person “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.” As a minor, Boyer was adjudicated 

a delinquent for conduct that, if committed by an adult, would have constituted rape, a 

felony offense of violence. Appellee’s Br. 1-2. Count 2 of the indictment is predicated 

on this fact. 
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{¶ 4} On August 25, 2016, the Ohio Supreme Court issued its opinion in Hand. 

The Court held that because “a juvenile adjudication is not established through a 

procedure that provides the right to a jury trial, it cannot be used to increase a sentence 

beyond a statutory maximum or mandatory minimum.” Hand, 2016-Ohio-5504, 

paragraph two of the syllabus. Prompted by the Court’s holding in Hand, Boyer moved 

to dismiss Count 2 of the indictment. The trial court, “using the same reasoning set forth 

in the Hand case,” sustained Boyer’s motion in an entry dated October 12, 2016. Entry 

Sustaining Def.’s Mot. to Dismiss 1, Oct. 12, 2016. Shortly thereafter, the State initiated 

the instant appeal. 

II. Analysis 

{¶ 5} For its single assignment of error, the State contends that: 

 THE TRIAL COURT ERRED WHEN IT DISMISSED A CHARGE 

FOR HAVING WEAPONS UNDER DISABILITY WHERE THE DISABILITY 

AROSE FROM A JUVENILE DELINQUENCY ADJUDICATION. 

{¶ 6} In support, the State offers two arguments. First, it argues that because “the 

plain language of [R.C. 2923.13(A)(2)] is unambiguous and definite,” the statute “must be 

applied as written.” Appellant’s Br. 4. Second, it argues that the Hand decision is 

inapplicable in this case because “a defendant does not need to [have been] convicted of 

anything to be under a disability” for purposes of R.C. 2923.13(A)(2). Id. at 5. 

{¶ 7} The first of the State’s arguments may be rejected because a statute need 

not be ambiguous or indefinite to be constitutionally unenforceable. In the decision from 

which the State takes its appeal, the trial court found “that if the use of a * * * prior juvenile 

adjudication to enhance a subsequent adult [criminal] penalty is a violation of * * * due 
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process,” as the Ohio Supreme Court determined in Hand, then the use of a juvenile 

adjudication “as an element for a subsequent adult felony offense” is likewise a violation 

of due process. Entry Sustaining Def.’s Mot. to Dismiss. 1-2. Thus, the trial court did 

not misconstrue R.C. 2923.13(A)(2) as the result of any ambiguity or uncertainty, but 

instead found that enforcement of the statute on the basis of a juvenile adjudication is 

unconstitutional. 

{¶ 8} The second of the State’s arguments requires a review of the Hand opinion. 

In that case, the Ohio Supreme Court was asked to determine whether “treat[ing] a 

juvenile adjudication as the equivalent of an adult conviction for purposes of enhancing a 

penalty for a later crime” is a violation of due process. Hand, 2016-Ohio-5504, ¶ 1. It 

began its analysis by noting that juvenile courts “are legislative creatures * * * ‘eschew[ing] 

traditional, objective criminal standards and retributive notions of justice’ ” in favor of the 

“overriding purposes” of providing “ ‘for the care, protection, and mental and physical 

development of children,’ ” safeguarding “ ‘the public interest,’ ” holding “ ‘offender[s] 

accountable * * *, restor[ing] the victim[s], and rehabilitat[ing] the offender[s].’ ” Id. at 

¶ 14, quoting In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1175, ¶ 65. 

In summary, said the Court, “juvenile adjudication differs from criminal sentencing [in that 

the former] is civil and rehabilitative, [whereas] the [latter] is criminal and punitive.” Id.

{¶ 9} As part of its analysis, the Court relied heavily on the decision of the United 

States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 

L.Ed.2d 435 (2000), which held that “ ‘[o]ther than the fact of a prior conviction, any fact 

that increases the penalty for a crime beyond the prescribed statutory maximum,’ ” unless 

admitted by the defendant, “ ‘must be submitted to a jury[] and proved beyond a 
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reasonable doubt.’ ” Hand at ¶ 21, 31, quoting Apprendi, 530 U.S. at 490. Interpreting 

this holding in light of the federal judiciary’s history of “emphatic pronouncements on the 

importance of the right to a jury trial,” the Ohio Supreme Court interpreted Apprendi as 

“limit[ing] the prior-conviction exception to prior proceedings that satisf[y] the 

[constitutional] jury-trial guarantee.” Id. at ¶ 34. It concluded, based upon this principle, 

that “[b]ecause a juvenile adjudication is not established through a procedure that 

provides the right to a jury trial, [a juvenile adjudication] cannot be used to increase a 

sentence beyond a statutory maximum or mandatory minimum.” Id. Quite simply, the 

Court added, “a juvenile adjudication is not a conviction of a crime and should not be 

treated as one.” Id. at ¶ 38. 

{¶ 10} The Hand decision is nevertheless not dispositive because, in the instant 

case, the use of Boyer’s juvenile adjudication was not for purposes of sentence 

enhancement, but as an element of the offense of having weapons while under disability. 

In other words, Boyer’s juvenile adjudication was not being treated as a conviction of a 

crime. See State v. McComb, 2d Dist. Montgomery No. 26884, 2017-Ohio-4010, ¶ 24-

26. Under R.C. 2923.13(A), a person is deemed to be under a legal disability if: 

a. The person is a fugitive from justice; 

b. The person is under indictment for any felony offense of violence; 

c. The person has been convicted of a felony offense of violence; 

d. The person 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; 

e. The person is under indictment for any felony offense involving the illegal 
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possession, use, sale, administration, distribution or trafficking in any drug 

of abuse; 

f. The person has been convicted of a felony offense involving the illegal 

possession, use, sale, administration, distribution or trafficking in any drug 

of abuse; 

g. The person has been adjudicated a delinquent child for the commission of 

an offense that, if committed by an adult, would have been a felony offense 

involving the illegal possession, use, sale, administration, distribution or 

trafficking in any drug of abuse; 

h. The person is drug dependent, in danger of drug dependence, or is a 

chronic alcoholic; or 

i. The person is under adjudication of mental incompetence, has been 

adjudicated as a mental defective, has been committed to a mental 

institution, has been found by a court to be a mentally ill person subject to 

court order, or is an involuntary patient other than one who is a patient only 

for purposes of observation. 

As this list illustrates, a person may be under a legal disability pursuant to R.C. 2923.13(A) 

without having been convicted of a criminal offense. A juvenile adjudication for an 

offense of violence is only one of several non-criminal predicates giving rise to a legal 

disability under the statute. 

{¶ 11} In United States v. Rodriguez, 553 U.S. 377, 386, 128 S.Ct. 1783, 170 

L.Ed.2d 719 (2008), the U.S. Supreme Court remarked that “[w]hen a defendant is given 

a higher sentence under a recidivism statute—or for that matter, when a sentencing 
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judge, under a guidelines regime or a discretionary sentencing system, increases a 

sentence based on the defendant’s criminal history—100% of the punishment is for the 

offense of conviction,” emphasizing that “[n]one is for the prior convictions or the 

defendant’s ‘status as a recidivist.’ ” To the contrary, said the Court, the enhanced 

“sentence ‘is a stiffened penalty for the latest crime, which is considered to be an 

aggravated offense because [it is] a repetitive one.’ ” Id., quoting Gryger v. Burke, 344 

U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948). The Ohio Supreme Court applied 

this reasoning to the use of juvenile adjudications for sentence enhancement in State v. 

Adkins, 129 Ohio St.3d 287, 2011-Ohio-3141, 951 N.E.2d 766, a case it decided five 

years before the release of its opinion in Hand. According to the Adkins decision, a 

defendant facing criminal sentence enhancement as the result of a juvenile adjudication 

“is not being punished for [the] adjudication,” but rather, “is being punished for [the] current 

offense.” Adkins, 2011-Ohio-3141, ¶ 15. 

{¶ 12} These decisions highlight the Ohio Supreme Court’s concern in Hand. If 

the premise of imposing an adult criminal sentence enhancement on the basis of a 

juvenile adjudication is that “the subsequent [adult] offense is * * * more serious because 

it portends greater future danger,” having been committed on the heels of a juvenile 

offense, then the premise is realized only if the defendant actually committed the offense 

that was the subject of the adjudication. Rodriguez, 553 U.S. at 385, citing Witte v. 

United States, 515 U.S. 389, 403, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995), and Spencer 

v. Texas, 385 U.S. 554, 570, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). Yet, because juvenile 

proceedings do not satisfy the jury-trial guarantee, any subsequent adult sentence 

enhancement would constitute a criminal sanction based entirely on questions of fact 
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never presented to a jury. 

{¶ 13} In a prosecution for having weapons while under disability, on the other 

hand, the validity of a predicate juvenile adjudication is not at issue. The question 

presented in such circumstances is simply whether the defendant chose to use or 

possess a weapon in disregard of a legal disability. Consequently, the question of 

whether the defendant actually committed an offense as a juvenile is rendered immaterial. 

See State v. Hudson, 2017-Ohio-645, ___ N.E.3d ___, ¶ 46, 50-52 (7th Dist.); see also 

State v. Carnes, 2016-Ohio-8019, ___ N.E.3d ___, ¶ 7-8, 12-15 (1st Dist.) (reaching 

effectively the same conclusion where the appellant argued that the use of an 

uncounseled juvenile adjudication as an element of having weapons while under disability 

is an unconstitutional violation of the right to counsel). 

{¶ 14} Moreover, for purposes of due process, the use of Boyer’s juvenile 

adjudication as an element of an offense under R.C. 2923.13(A) is not fundamentally 

unfair, not least because R.C. 2923.14(A)(1) permits “any person who is prohibited from 

acquiring, having, carrying, or using firearms [to] apply to the court of common pleas in 

the county in which the person resides for relief from such prohibition.” Upon reaching 

the age of majority, Boyer had the opportunity under R.C. 2923.14(A)(1) to request the 

removal of the legal disability created by his juvenile adjudication. 

{¶ 15} Ultimately, what the Court sought to avoid in Hand is the “fundamental[] 

unfair[ness] [of] allow[ing] juvenile adjudications,” which result from “less formal 

proceedings” than in criminal prosecutions, “to be characterized as criminal convictions 

that may later enhance adult punishment.” 2016-Ohio-5504, ¶ 35. The use of Boyer’s 

juvenile adjudication in this case, however, would not implicate the concerns that the 
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Court articulated in its Hand decision. Instead, Boyer’s indictment for having weapons 

while under disability relates strictly to choices he has made since reaching the age of 

majority. At trial, the State would not be required to prove that Boyer actually committed 

an offense of violence as a juvenile, but merely that he had, in fact, been adjudicated for 

the commission of such an offense. The use of Boyer’s juvenile adjudication as an 

element of having weapons while under disability, therefore, would comport with the ruling 

of the United States Supreme Court in Apprendi. 

III. Conclusion 

{¶ 16} We find that the trial court erred by dismissing the second count of the 

indictment against Boyer in reliance on the Ohio Supreme Court’s decision in Hand. 

Therefore, we sustain the assignment of error and reverse and remand for further 

proceedings consistent with this opinion. 

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FROELICH, J., concurs. 

DONOVAN, J., dissenting: 

{¶ 17} Boyer’s prior adjudication of delinquency, which can now be utilized as an 

element of the offense to establish weapons while under disability, suffers from the same 

constitutional infirmity as an enhancement. At the heart of the analysis in Hand is the 

lack of a right to a jury determination of the predicate conduct. In this case, status 

(disability) creates the offense, in Hand status enhances punishment. 

{¶ 18} I agree with Judge Cunningham’s dissent in Carnes, it is illogical to 

conclude enhancement of punishment is unconstitutional, but prosecution where 

otherwise there would be no indictment is not. In all other scenarios, the status of 
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disability is conduct which occurs as an adult. The juvenile vs. adult conduct distinction 

is critical to the constitutional analysis, particularly under the Ohio Constitution as noted 

in Hand. 

{¶ 19} I would affirm. 

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Copies mailed to: 

Megan M. Farley 

Katherine R. Ross-Kinzie 

Hon. Richard J. O’Neill