State v. Hanners
2022 Ohio 4114
Ohio Ct. App.2022Background
- On Nov. 21, 2020 the Stanfields observed a confrontation between four juveniles and two adults (Hanners and Musselman) near a gas station; they returned to intervene and called 911.
- Witnesses testified Hanners threw objects (chairs, lighter fluid, a brick that struck a juvenile), released a pit bull saying “get the kids,” and later yelled threats while police were present; Musselman brandished a butcher knife and repeatedly threatened to kill a witness.
- Hanners was charged with aggravated menacing and menacing; tried jointly with Musselman before Magistrate Colette Moorman acting as an acting judge; acquitted of aggravated menacing and convicted of menacing.
- Sentenced to 30 days (all suspended), six months community control, PAC and anger management, fines and costs; Hanners timely appealed.
- On appeal Hanners raised three assignments of error: (1) trial before a magistrate required written consent; (2) trial court erred by denying a mistrial after a prosecutor’s misstated closing argument; and (3) trial court erred by refusing a lesser-included instruction for disorderly conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether written consent was required to try a misdemeanor by a magistrate | State: Moorman served as an acting judge under R.C. 1901.121, so no written consent was required | Hanners: Crim.R. 19(C)(1)(h) requires unanimous written consent to try an offense punishable by imprisonment before a magistrate | Court: Overruled — Moorman was appointed acting judge, not acting as magistrate; consent unnecessary |
| Whether prosecutor’s misstatement in closing warranted a mistrial | State: Misstatement was isolated; court’s immediate corrective measures cured any prejudice | Hanners: Prosecutor improperly attributed a “I will kill you” statement to him, which prejudiced his right to a fair trial | Court: Overruled — prosecutor misstated but court replayed testimony, struck the remark, admonished prosecutor, and gave curative instruction; no abuse of discretion |
| Whether the court should have instructed on disorderly conduct as a lesser-included offense | State: Evidence showed Hanners acted knowingly (menacing), so jury could not reasonably convict only of disorderly conduct (which requires recklessness) | Hanners: Requested instruction because disorderly conduct is a statutory lesser-included offense of menacing | Court: Overruled — although disorderly conduct is a statutory lesser-included offense, the evidence did not support acquittal on menacing and conviction on disorderly conduct, so instruction properly denied |
Key Cases Cited
- State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984) (test for prosecutorial misconduct in closing argument)
- Smith v. Phillips, 455 U.S. 209 (1982) (focus is fairness of the trial, not prosecutor culpability)
- State v. Powell, 132 Ohio St.3d 233, 971 N.E.2d 865 (2012) (prosecutors given wide latitude in closing arguments)
- State v. Treesh, 90 Ohio St.3d 460, 739 N.E.2d 749 (2001) (denial/grant of mistrial reviewed for abuse of discretion)
- State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988) (three-pronged test for lesser-included offenses)
- State v. Deanda, 136 Ohio St.3d 18, 989 N.E.2d 986 (2013) (two-step analysis for lesser-included-offense instructions)
- State v. Allen, 73 Ohio St.3d 626, 653 N.E.2d 675 (1995) (instruction required only when evidence supports acquittal on greater and conviction on lesser)