[Cite as State v. Herron, 2017-Ohio-8908.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

TAHWIN S. HERRON 

Defendant-Appellant

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Appellate Case No. 27378 

Trial Court Case No. 2016-CR-811 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 8th day of December, 2017. 

. . . . . . . . . . . 

MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, 301 

W. Third Street, Dayton, Ohio 45402 

 Attorney for Plaintiff-Appellee 

 

TERRENCE K. SCOTT, Atty. Reg. No. 0082019, Assistant State Public Defender, 250 E. 

Broad Street, Suite 1400, Columbus, Ohio 43215 

 Attorney for Defendant-Appellant 

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HALL, P.J. 

{¶ 1} Tahwin S. Herron appeals from his conviction and sentence on charges of 

having a weapon while under disability and improperly handling a firearm in a motor 

vehicle. 

{¶ 2} In his sole assignment of error, Herron contends the trial court erred in 

overruling his motion to dismiss the weapon-under-disability charge where the predicate 

disability arose from a juvenile-delinquency adjudication. 

{¶ 3} The record reflects that Herron was adjudicated delinquent in January 2016 

based on conduct that constituted marijuana trafficking. At that time, he was seventeen 

years old. Two months later, he was caught by police with a loaded firearm in a car. At 

the time of that incident, he was eighteen years old. As a result, in June 2016, he was 

indicted on the two charges set forth above. 

{¶ 4} The weapon-under-disability statute, R.C. 2923.13(A)(3), provides in 

relevant part that “no person shall knowingly acquire, have, carry, or use any firearm or 

dangerous ordnance if * * * [t]he 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.” 

{¶ 5} In his motion to dismiss, Herron argued below that State v. Hand, 149 Ohio 

St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, barred the use of his juvenile adjudication to 

establish the disability element of the weapon-under-disability charge. (Doc. #17). The 

trial court rejected his argument, finding Hand distinguishable. Herron then pled no 

contest to both charges against him. The trial court accepted the plea, found him guilty, 
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and imposed community-control sanctions. 

{¶ 6} On appeal, Herron insists that the rationale of Hand applies to him. In Hand, 

the Ohio Supreme Court held that a juvenile adjudication may not be treated as the 

equivalent of an adult conviction for purposes of enhancing the degree of or the sentence 

for a later crime committed as an adult. Hand at ¶ 37. Here Herron’s juvenile adjudication 

did not enhance the penalty for his weapon-under-disability offense. Instead, it was used 

to satisfy an element of the offense. Herron nevertheless asserts that this is an illogical 

distinction and that the rationale of Hand should be applied in his case. 

{¶ 7} This court has rejected arguments identical to Herron’s on several prior 

occasions. See State v. McComb, 2017-Ohio-4010, __ N.E.3d __, ¶ 26 (2d Dist.) 

(concluding that “Hand does not ban the use of a prior juvenile adjudication as an element 

of an offense; rather, Hand bans the use of a juvenile adjudication to enhance a penalty 

by treating the adjudication as an adult conviction.”); State v. Boyer, 2017-Ohio-4199, __ 

N.E.3d __, ¶ 15-16 (2d Dist.) (“The use of Boyer’s juvenile adjudication in this case, 

however, would not implicate the concerns that the 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. * * * 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.”); State v. Jackson, 2d Dist. Montgomery No. 

27351, 2017-Ohio-4197, ¶ 9 (“Hand does not apply to R.C. 2923.13(A)(2), and the 

legislature’s determination that a juvenile adjudication may support a count of having 

weapons while under disability does not violate a defendant’s due process rights.”); State 

v. St. Jules, 2d Dist. Montgomery No. 27405, 2017-Ohio-7941, ¶ 9 (“We decline to 
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reconsider our conclusion that Hand does not apply to R.C. 2923.13(A)(2) and that the 

use of a juvenile adjudication to support a count of having weapons while under disability 

does not violate a defendant’s due process rights.”). We see no reason to depart from the 

foregoing cases, which we continue to believe were decided correctly and which are 

dispositive of Herron’s argument.1 

{¶ 8} For the foregoing reasons, we overrule Herron’s assignment of error and 

affirm the judgment of the Montgomery County Common Pleas Court. 

FROELICH, J., concurs. 

DONOVAN, J., dissenting. 

{¶ 9} Herron’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 predicated conduct. In this case, status (disability) 

creates the offense; in Hand status enhances punishment. 

{¶ 10} I agree with Judge Cunningham’s dissent in State v. Carnes, 2016-Ohio8019, 75 N.E.2d 774 (1st Dist.), 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 disability is conduct which occurs as an adult. The 

juvenile vs. adult conduct distinction is critical to the constitutional analysis, particularly 

 

1 We recognize that on September 13, 2017, the Supreme Court of Ohio accepted a 

jurisdictional appeal in State v. Carnes, Ohio Sup.Ct. No. 2017-0087, to address whether 

juvenile adjudications can satisfy elements of an offense committed as an adult. See

09/13/2017 Case Announcements # 2, 2017-Ohio-7567. We deny Herron’s request in his 

reply brief to stay further proceedings pending the Ohio Supreme Court’s resolution of 

Carnes. 
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under the Ohio Constitution as noted in Hand. 

{¶ 11} I would reverse. 

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Copies mailed to: 

Michael J. Scarpelli 

Terrence K. Scott 

Hon. Barbara P. Gorman