STATE OF OHIO v. SHAWN A. HANNERS
Appellate Case No. 29375
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
November 18, 2022
2022-Ohio-4114
Trial Court Case No. 2020-CRB-3626 (Criminal Appeal from Municipal Court)
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O P I N I O N
Rendered on the 18th day of November, 2022.
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STEPHANIE L. COOK, Atty. Reg. No. 0067101 & ALISSA SCHRINER, Atty. Reg. No. 0089388, Assistant Prosecuting Attorneys, City of Dayton Prosecutor‘s Office, Appellate Division, 335 West Third Street, Room 372, Dayton, Ohio 45402
Attorneys for Plaintiff-Appellee
V. GAYLE MILLER, Atty. Reg. No. 0091528, 120 West Second Street, Suite 320, Dayton, Ohio 45402
Attorney for Defendant-Appellant
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LEWIS, J.
I. Procedural History and Facts
{¶ 2} On November 24, 2020, Hanners was charged by way of complaint in the Dayton Municipal Court with one count of aggravated menacing in violation of
{¶ 3} Hanners entered a plea of not guilty at his arraignment and was appointed counsel. Jessica Musselman was charged as a co-defendant as a result of the same incident for similar offenses. Consequently, the State filed a motion to consolidate the two cases for trial, which was granted. The case proceeded to a joint jury trial on October 20-21, 2021. Dayton Municipal Court Magistrate Colette Moorman presided over the trial as acting judge.
{¶ 4} Duiene Stanfield testified first for the State. She stated that on the evening of November 21, 2020, she was in a car with her husband, Christopher Stanfield, near the intersection of Linden and Smithville heading toward their home.1 While at the stoplight, she observed four unknown black teenagers in the parking lot of a gas station, which was on one of the corners of the intersection. She also saw two white males, one of whom was later identified as Hanners, and a white female, later identified as
{¶ 5} While Duiene was standing just outside her car on the phone with 911, Musselman began screaming at Duiene. Musselman yelled profanities at Duiene, told her to stay out of their business, and stated “I‘ll kill you b****.” Trial Tr. 56. Additionally, while holding the butcher knife above her head and moving it side to side, Musselman repeatedly told Duiene “I see you,” that she could see her car, and that she could see her license plate. They did not know each other prior to their interaction that evening.
{¶ 6} Although the unknown white male had gone into the house, he returned outside with a large white pit bull. Hanners, who was holding the dog‘s chain, let the chain go and told the dog to “get the kids.” Duiene testified she was scared and concerned for her husband‘s safety, because he was standing near the kids when the dog was let loose. Meanwhile, Musselman continued to yell derogatory insults at Duiene and again screamed that she would kill her even after the police arrived at the scene. Id. at 58.
{¶ 8} Christopher Stanfield also testified for the State. He stated that he and Duiene were driving home and saw the group of kids and the two adults “jawing” at each other, and they all appeared angry. Based on what he saw, he and Duiene turned their car around and parked in the gas station parking lot to intervene. Once they parked their car, they could hear the teenagers and the adult males screaming back and forth. Christopher got out of the car and yelled at the kids to get back and told his wife to call 911. Two of the kids came back toward Christopher, but the other two stayed up by the backyard and continued yelling with the adults. According to Christopher, one of the male adults threw a rock and hit one of the kids in the chest. At that point, Christopher was scared for his own safety. Christopher also observed Musselman outside with a knife, screaming and yelling. Christopher heard Musselman threaten to kill his wife. Although Christopher saw a chair get thrown, he did not identify who threw the chair. He also observed the dog outside but was unaware of how it got outside.
{¶ 9} The last witness for the State was Dayton Police Officer Christopher White. White testified that he had responded to the 911 call around 4:30 p.m. to the gas station
{¶ 10} At the conclusion of the State‘s case, Hanners made a
{¶ 11} Hanners elected not to testify, but Musselman testified on her own behalf. Musselman claimed that she had not seen the Stanfields until after the police arrived and that she had not been paying any attention to them because her focus was on the juveniles. Musselman indicated she was terrified for herself and her child‘s life, who remained inside the house. She did not see any weapons on the Stanfields, and they never approached her property. Musselman denied doing anything Duiene testified to during trial, although she later admitted that she was outraged and yelled profanities during the incident.
{¶ 12} The jury found Hanners not guilty of aggravated menacing but guilty of menacing. After a presentence investigation report was completed, Hanners was sentenced to 30 days in jail, all of which was suspended, was ordered to: complete six months of community control under basic supervision, complete “PAC” and anger
{¶ 13} Hanners filed a request to stay his sentence for purposes of appeal, which the trial court granted. Hanners then filed a timely notice of appeal.
II. No Consent Needed for Jury Trial
{¶ 14} In his first assignment of error, Hanners alleges that the trial court erred in failing to obtain his written consent before proceeding to a jury trial before a magistrate. However, because the record reflects that he was tried before an acting judge, there was no requirement to obtain consent, and his argument lacks merit.
{¶ 15} Although Hanners couched his argument in terms of
{¶ 16} Meanwhile,
{¶ 17} In this case, Magistrate Moorman was appointed by the presiding judge to act as acting judge of the Dayton Municipal Court on October 20, 2021, October 21, 2021, and January 5, 2022. Collectively, the dates covered both the jury trial, the sentencing hearing, and the sentencing entry. The entries appointing Moorman as acting judge further indicated that the appointment of an acting judge was necessary for those dates due to the absence of Judge Henderson. Because the jury trial was conducted by Moorman in her capacity as acting judge and not in her capacity as magistrate, there was no need to obtain unanimous consent of the parties to have her preside over the trial. As such, Hanners’ first assignment of error is overruled.
III. Motion for Mistrial
{¶ 18} Hanners’ second assignment of error contends that the trial court erred in refusing to grant a mistrial following the prosecutor‘s improper statement during her closing argument. Although the prosecutor‘s statement was improper, it did not prejudicially affect Hanners’ substantial right to a fair trial due to the swift corrective measures taken by the trial court.
{¶ 19} “The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected
{¶ 20} The grant or denial of a motion for a mistrial rests in a trial court‘s sound discretion and should not be disturbed on appeal absent an abuse of that discretion. State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001). To establish an abuse of discretion for failing to grant a mistrial, a defendant must demonstrate material prejudice. State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 198. “Mistrials need be declared only when the ends of justice so require and a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991). Reviewing courts grant “great deference to the trial court‘s discretion in this area, in recognition of the fact that the trial judge is in the best position to determine whether the situation in his courtroom warrants the declaration of a mistrial.” State v. Glover, 35 Ohio St.3d 18, 19, 517 N.E.2d 900 (1988).
{¶ 21} Hanners’ motion for a mistrial was based on the prosecutor‘s statement during closing argument that “Miss Stanfield also told you about how Shawn Hanners threatened to kill her.” Trial Tr. 140. Hanners immediately objected. The jury left the courtroom, and the parties replayed the testimony of Duiene. A review of the testimony revealed that Duiene testified that Hanners stated “I‘ll f*** you all up” and did not state “I will kill you.” Id. at 141. Hanners immediately requested a mistrial. The trial court denied the motion for a mistrial and provided the following additional instructions upon the jury‘s return to the courtroom:
The Court: * * * To members of the jury, final arguments of counsel are an opportunity for each side‘s attorney to summarize the evidence and argue their respective positions. They are not evidence and the side with the burden of proof will be the state. The attorney[s] have to argue the facts that are in evidence and the court is going to tell you we went back to play a portion of the tape to make sure that I had heard everything correctly. There is no testimony on the record that the defendant, Mr. Hanners, said the words […]
[Defense attorney]: That I will kill you[.]
The Court: That I will [sic] you. The prosecutor has misstated that. That is not in evidence and it was very improper for her to say so. I‘m going to ask you to disregard that. It is not in the evidence. It‘s not in the record. You, as the jury, decides what facts you believe and you want to find to be
credible, the witnesses to be credible, and what facts you want to ugh commenting recollection [sic] with each other believe what you heard. That is not going to be one of them. It‘s gonna be stricken from the record and there is no allegation there that he said those words. I‘m going to caution the prosecutor to not misstate what was said and I will allow you to continue.
Id. at 142-143. Thereafter, the prosecutor apologized and continued with closing arguments.
{¶ 22} After reviewing the record, we conclude that the prosecutor improperly attributed the statement to Hanners, which was prejudicial. Although Duiene Stanfield did not testify that Hanners made the statement, she did testify that Hanners’ co-defendant, Musselman, made the statement multiple times. Christopher also testified that he heard Musselman threaten to kill Duiene. Thus, the statement was in evidence but, unfortunately, the prosecutor attributed it to the wrong defendant.
{¶ 23} Even though we find the statement by the prosecutor to have been improper and prejudicial, we must still determine whether the remark was so prejudicial as to deny Hanners a fair trial. We are unpersuaded that the prosecutor‘s misstatement so infected Hanners’ trial with unfairness that his conviction violated his due process rights. Notably, the court‘s instructions immediately following the prosecutor‘s misstatement mitigated any harm caused by it. “Curative instructions are generally viewed as sufficient to remedy the risk of undue prejudice.” State v. Gray, 2d Dist. Darke No. 2019-CA-7, 2020-Ohio-1402, ¶ 48. The jury was informed prior to closing arguments and again in the jury instructions that the arguments of counsel were not to be considered as evidence. “It is
IV. Jury Instructions
{¶ 24} In his final assignment of error, Hanners claims that the trial court erred when it refused to instruct the jury on the lesser included offense of disorderly conduct. Although Hanners requested the instruction, the trial court found that the evidence did not warrant giving it. We agree with the trial court.
{¶ 25} Both
{¶ 26} “A trial court has broad discretion to decide how to fashion jury instructions, but it must ‘fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.‘” State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 46, quoting State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. “A defendant is only entitled to have his proposed jury instructions given when they are correct statements of the law, pertinent to the evidence in the record or to material issues, and are timely presented and not already included in the substance of the jury charge.” State v. Elliott, 2d Dist. Montgomery No. 26104, 2014-Ohio-4958, ¶ 23, citing State v. Guster, 66 Ohio St.2d 266, 269, 421 N.E.2d 157 (1981). “When reviewing the trial court‘s jury instructions, the proper standard of review is whether the trial court‘s decision to give or exclude a particular jury instruction was an abuse of discretion under the facts and
{¶ 27} In this case, Hanners was charged and convicted of menacing, in violation of
{¶ 28} Hanners requested a jury instruction for disorderly conduct, in violation of
{¶ 29} The Ohio Supreme Court has articulated a three-pronged test to determine whether a criminal offense is a lesser included offense of another. “An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the
{¶ 30} First, disorderly conduct is a minor misdemeanor, which carries a lesser penalty than menacing, a fourth-degree misdemeanor. See, generally,
{¶ 31} Nonetheless, a trial court is not always required to instruct the jury on a lesser included offense even if the elements of the offense would be met. Rather, it is only required when “the evidence presented at trial would reasonably support an acquittal on the crime charged and a conviction on the lesser included offense.” State v. Allen, 73 Ohio St.3d 626, 637, 653 N.E.2d 675 (1995). Thus, we must consider whether the jury could have reasonably acquitted Hanners of menacing but convicted him of disorderly
{¶ 32} We conclude that the evidence presented at trial cannot reasonably support a conviction for disorderly conduct under
(B) A person acts knowingly, regardless of purpose, when the person is aware that the person‘s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
(C) A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person‘s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances
when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.
{¶ 33} As it relates to Hanners’ conduct and statements, the jury was only presented with one version of events – that testified to by the Stanfields. Considering the conduct and statements of Hanners during the entirety of the incident, the evidence presented demonstrated that Hanners acted knowingly, not recklessly. Thus, if the jury believed the Stanfields, Hanners was guilty of menacing.
{¶ 34} The incident occurred around 4:30 p.m. in broad daylight. Duiene testified she was approximately 20 feet away from Hanners during the incident and was located near her husband and the juveniles in the gas station parking lot. Hanners was observed by both the Stanfields throwing chairs and lighter fluid, as well as a brick/rock that struck one of the teenagers in the chest and resulted in an injury. Additionally, Hanners released a large pit bull and told the dog to “get the kids.” The 911 call was consistent with Duiene‘s testimony that chairs, lighter fluid, and bricks were being thrown and that the dog was sent out to get the kids. Duiene testified she was scared for herself and concerned for her husband‘s safety as well. Significantly, while police were on the scene, Hanners threw a chair and screamed “I don‘t give a f***. I‘ll f*** all of you up.” Trial Tr. 59. This conduct occurred after having already injured one of the juveniles by throwing other objects and telling police he did not need their help. Duiene stated that the threats from Hanners scared her and she was afraid that he was going to charge toward her and hit her. Id. at 60.
V. Conclusion
{¶ 36} Having overruled all of Hanners’ assignments of error, the judgment of the trial court is affirmed.
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TUCKER, P.J. and EPLEY, J., concur.
Copies sent to:
Stephanie L. Cook
Alissa Schriner
V. Gayle Miller
Hon. Colette Moorman, Acting Judge