State v. HathornState v. Hathorn
APPEARANCES:
Jesse E. Scott for Appellant
Phillip A. Riegle for Appellee
OPINION
WILLAMOWSKI, J.
{¶1} Defendant-appellant Robert Hathorn (Hathorn) brings this appeal from the judgment of the Court of Common Pleas of Hancock County convicting him of six counts along with two firearm specifications. On appeal Hathorn claims that the trial court erred by 1) allowing standby counsel to conduct voir dire, 2) allowing an expert to testify to matters outside the area of expertise, 3) failing to conduct a competency hearing, 4) failing to merge allied offenses, and 5) imposing an erroneous sentence. Hathorn also claims that the state failed to present sufficient evidence and engaged in prosecutorial misconduct. For the reasons set forth below, the judgment is affirmed.
Factual Background
{¶2} On December 6, 2021 Ohio State Highway Trooper Josef Brobst (Brobst) initiated a traffic stop of a black SUV for spеeding. While following the vehicle, Brobst also noticed that it had no visible license plate. Brobst activated his emergency lights and the driver of the SUV pulled to the side of the highway. Upon approaching the vehicle on the passenger side, Brobst learned that the driver of the vehicle was Hathorn. Brobst detected the odor of marijuana coming from the vehicle. Brobst had Hathorn exit the vehicle and Brobst performed a pat-down search for weapons. Finding no weapons, Brobst began speaking to Hathorn alongside the highway.
{¶4} Hathorn and Brobst began wrestling and Brobst attempted to prevent Hathorn from reaching his duty weapon. Hathorn then reached for Brobst’s taser and Brobst yelled at him. They continued to struggle and eventually fell over the guardrail on the side of the road and fell to the ground. The struggle continued with Hathorn on top of Brobst аnd Brobst’s hands on Hathorn’s shoulders trying to control him. Brobst then heard a gunshot and felt pain. Brobst yelled at Hathorn to get off of him and the fight continued. Eventually Hathorn got off Brobst and ran back to his vehicle. Brobst then pulled his weapon and attempted to fire at Hathorn, but the weapon would not fire. Hathorn left the scene. Brobst advised dispatch that he had been shot and requested back up.
{¶5} While officers were dispatched to the scene, the Findlay Police Department received a call about a semi-truck accident near the scene. The truck was stopped at a traffic light near an exit ramp from the highway. When the light turned green, the truck began to move when an SUV exited the highway and ran the light, pulling in front of the truck. The truck struck the SUV, but the SUV immediately left the scene going west. A search for the SUV was then started. The abandoned vehicle was eventually located hidden in a field and a search of the interior of the vehicle was completed.
{¶6} Police then learned that Hathorn was spotted near County Road 223. The area was searched and police found Hathorn hiding inside an old, metal incinerator. Hathorn was arrested without incident. After being advised of his Miranda rights, Hathorn made statements about the shooting. Hathorn had sustained an injury to his left index finger during the incident with Brobst and was taken to the hospital for treatment. Hathorn made a recorded statement to the police at the hospital after again being advised of his Miranda rights.
Procedural History
{¶7} On October 19, 2021, the Hancock County Grand Jury indicted Hathorn on six counts: 1) Felonious Assault in violation of
{¶8} A jury trial was held in June 2022. At the conclusion of the trial, the jury found Hathorn guilty on all counts, including the firearm specifications. The trial court conducted a sentencing hearing on July 13, 2022. The trial court noted that Counts Three and Four were subject to merger and the State chose to proceed to sentencing as to Count Three. The trial court then imposed the following prison terms for each remaining count: Count One – 10 to 15 years, along with an additional seven years for the firearm specification; Count Two – seven years; Count Three – 12 months; Count Five – 12 months; and Count Six – 12 months. Doc. 191. The trial court then made the findings to impose consecutive sentences as required by
First Assignment of Error
The trial court erred when it allowed standby counsel to conduct the voir dire examination after [Hathorn] had knowingly, intelligently, and voluntarily waived his right to counsel in violation of [Hathorn’s] Sixth and Fourteenth Amendment rights to self-representation.
Second Assignment of Error
The trial court erred when it failed to merge counts one and two of the indictment because they are allied offenses.
Third Assignment of Error
The trial court erred by improperly allowing a firearms examiner to testify as an expert on firearm holsters when that firearms examiner had no training in the area pursuant to
Evid.R. 702
Fourth Assignment of Error
The State failed to present sufficient evidence to sustain a conviction.
Fifth Assignment of Error
The trial court erred by sentencing [Hathorn] to an indefinite sentence pursuant to the Reagan Tokes Act.
Sixth Assignment of Error
In the alternative to Error of Assignment 1 [sic], the trial cоurt committed error when it failed to provide a competency hearing to determine if [Hathorn] was fit to stand trial.
Seventh Assignment of Error
In the alternative to Error of Assignment 1 [sic], the trial court erred and deprived [Hathorn] of his right to counsel when it failed to ensure that
[Hathorn] had made a voluntary, knowing, and intelligent waiver of his right to counsel.
Eighth Assignment of Error
The State engaged in prosecutorial misconduct in closing arguments resulting in unfair prejudice against [Hathorn].
Ninth Assignment of Error
The State failed to present sufficient evidence to sustain a conviction in Counts One through Four.
In the interests of clarity, we will discuss the assignments of error out of order.
Competency of Defendant – Sixth Assignment of Error
{¶9} In the sixth assignment of error, Hathorn claims that the trial court erred by not sua sponte holding a competency hearing to determine whether Hathorn was fit to stand trial. Hathorn did not raise this issue to the trial court, thus we will review it under a plain error standard. Under this standard, the defendant bears the burden of showing that 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. West, 168 Ohio St.3d 605, 2022-Ohio-1556, ¶ 22, 200 N.E.3d 1048.
{¶10} Hathorn claims that the trial court should have realized he was likely incompetent to stand trial and sua sponte ordered a competency hearing. Ohio law has long recognized that a person who lacks the ability to understand the nature and purpose of the proceedings, to work in consult with his or her counsel, and to assist in the preparation of a defense may not be subjected to a trial. State v. Hough, 169 Ohio St.3d 769, 2022-Ohio-4436, ¶ 21, 207 N.E.3d 788. A determination of competency of a defendant depends on whether he has sufficient present ability to consult with his lawyers with a reasonable degree of rational understanding – and whether he has a rational as well as factual understanding of the proceedings against him. State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, ¶ 45, 890 N.E.2d 263. The presumption is that a defendant is competent to stand trial.
In a criminal action in a court of common pleas, * * * the court, prosecutor, or defense may raise the issue of the defendant’s competence to stand trial. If the issue is raised before the trial has commenced, the court shall hold a hearing on the issue as provided in this section. If the issue is raised after the trial has commended, the court shall hold a hearing on the issue only for good cause shown or on the court’s own motion.
{¶11} Incompetency in Ohio is not equаted with mere mental or emotional instability or even with outright insanity. Id. A defendant may be psychotic, yet still capable of understanding the charges brought and of assisting counsel. Id. Thus, to determine whether there is indicia of incompetency, this Court must look for indications that Hathorn did not understand the charges against him and, in this case, that he was incapable of rationally presenting a defense.
When a trial court is confronted with whether to order a competency hearing sua sponte, relevant considerations include: (1) doubts expressed by counsel as to the defendant‘s competence; (2) evidence of irrational behavior; (3) the defendant‘s demeanor at trial; and (4) prior medical opinion relating to competence to stand trial. * * * Absent indicia of incompetency, however, the trial court need not hold a competency heаring.
State v. Stiltner, 3d Dist. Defiance No. 4-19-08, 2019-Ohio-4631, ¶ 8 (citations omitted).
{¶12} Here, Hathorn indicates that the trial court should have sua sponte held the hearing because Hathorn indicated he was unhappy with his retained counsel’s work. At the January 27, 2022 hearing, Hathorn indicated he wanted new counsel because he was unhappy with the representation. Hathorn claimed that counsel was not meeting with him and was not working on the case. This unhappiness apparently arose from Hathorn wishing counsel to file a motion to test the evidence, which counsel refused to do because there is no basis for such a motion under Ohio law. This misunderstanding of what the law permits in Ohio is not a sign of lack of competency to stand trial, but rather a lack of understanding of criminal procedure in Ohio.
{¶13} Hathorn next claims that the trial court should have suspected he was incompetent because he indicated that he did not want appointed counsel. Hathorn indicated that he believed appointed counsel would not be effective because they were paid by the State. Hathorn indicated that he would prefer to represent himself if he could not find new retained counsel. From my past experience, if I don’t have a paid attorney, I’m going to prison anyway, you know? Jan. 27 Tr. 26. Hathorn then followed through on this position when he could not find retained counsel and indicated he wished to represent himself. After much discussion with the trial court, Hathorn identified an attorney, Treece, he wished to represent him and the trial court subsequently appointed Treece to represent Hathorn.
{¶14} By May, Hathorn was back to wanting to represent himself. When asked why, he responded as follows.
I feel like, I know my case better than, you know, anybody, and I feel like this is my life on the line, and I’d rather, you know, be in this Court representing myself. If any mistakes made [sic], I’d rather me make the mistake, because I’m going to have to do time for it.
And you know, I felt like no matter what kind of counsel that you appoint me, the Prosecution is always going to have an influence on that – on that – on that counsel. You know? Is a lot of things that I haven’t been understanding that’s been going on around here, but I
understand because I have been through it so many times. I don’t feel like a Court-appointed attorney, he’s paid by the State. He’s paid by the same person that pays her, pays you, you know? He’s not my defense counsel. I know you feel differently, and I know the law feels differently. * * *
But I know from my experience, your Honor, you know, I have bad experience with Court-appointed attorneys in my lifetime, very bad experience. * * *
I can’t articulate myself like these attorneys, like the Prosecutor, and like the – like the lawyers, but I know my case. I know the laws on my case. You know, and I might make mistakes, and I might say things, but like I said, I’d rather have my life in my hands than anybody else.
{¶15} A review of the record shows that Hathorn represented himself and was able to question witnesses in an appropriate manner. He was able to ask relevant questions on cross-examination that furthered his defense. Hathorn was also able to work with Treece, his standby counsel, and did so as needed, including allowing Treece to conduct the voir dire with the trial court’s permission. The record indicates only one instance where Hathorn’s conduct could be deemed irrational and that was after he returned from the hospital in severe pain. This did not occur in the presence of the jury and the trial court allowed him additional time to recover rather than continuing with the trial. Although Treece did question Hathorn’s competency to proceed on the morning of June 10, 2022, it was in a limited context.
The Court: It’s been reported to the Court that Mr. Hathorn has an injury, illness or condition which has manifested itself from last evening until today.
Mr. Treece, did you discuss that with Mr. Hathorn?
Mr. Treece: I have. He has some sort of injury or something on his elbow. It’s actually – he’s numb on his right arm. And frankly, I think he’s suffering from some sort of maybe emotional or mental condition because of it as well. He’s not making complete sense when I talk to him but it’s clearly affecting him and his abilities.
Tr. 1280-81 (emphasis added). Treece was not referring to Hathorn’s mental status throughout the trial, but at the time right after the injury. Given the record before us, this Court does not find that there was sufficient indicia of incompetency to require the trial court to sua sponte order a competency evaluation. The sixth assignment of error is overruled.
Waiver of Counsel – Seventh Assignment of Error
{¶16} Hathorn claims in the seventh assignment of error that the trial court erred by failing to ensure that Hathorn’s waiver of counsel was voluntarily, knowingly, and intelligently made. The basis for this claim is that Hathorn lacked the competence to enter a valid waiver. This Court notes that the question of the competency was resolved above. The record does not contain indicia that Hathorn lacked the competence to enter a valid waiver. Thus, we will only need to consider whether the waiver was properly made.
The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused – whose life or liberty is at stake is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge‘s responsibility. To be valid such waiver
must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.
Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S.Ct. 316, 92 L.Ed. 309 (1948), quoting Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (overruled on other grounds). See also State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, and In re C.B., 3d Dist. Auglaize Nos. 2-11-13, 2-11-14, 2012-Ohio-5143, ¶ 7. Generally, there is a presumption against the waiver of counsel and the State bears the burden of proving that the waiver was valid. State v. Jackson, 3d Dist. Seneca No. 13-14-30, 2015-Ohio-1694, ¶ 4.
{¶17} A review of the record in this case shows that the issue of Hathorn representing himself was discussed over multiple hearings. The matter was extensively discussed on May 4, 2022, and the trial court continued the matter until May 9, 2022, to allow Hathorn more time to fully consider his decision. The trial court repeatedly attempted to dissuade Hathorn from representing himself and even informed Hathorn that it was not a wise choice.
I’ve done this in the recent past, where I have regrettably allowed peоple to represent themselves. I think it’s a foolhardy determination on your part. I think it’s the absolute worst thing you can do, but it is your constitutional right.
May 4 Tr. 23. The trial court also attempted to find new appointed counsel, including contacting the State Public Defender’s Office so that Hathorn would not need to represent himself. Hathorn indicated that he still wished to represent himself.
Hathorn: I appreciate, your Honor. I appreciate everything that – that you trying to do, trying to get me right counsel, and – but I really truly feel in my heart that I can represent myself.
May 4 Tr. 22. Hathorn did agree to allow Treece to act as standby counsel in a compromise. Hathorn indicated that he had some experience researching cases from his prior time in prison. Hathorn also indicated that he had started reading the Ohio Rules of Criminal Procedure in preparation of representing himself. Throughout the remainder of the May 4 hearing, the trial court warned Hathorn of how he would be required to comply with the rules and the short time he would have to learn those rules. The trial court also informed Hathorn that the State had the burden of proof, that he would have to subpoena his own witnesses, and that he would have to request his own expert witnesses if he needed one. Finally, the trial court discussed with Hathorn what the potential penalties of the offenses charged would be. The trial court then continued the matter until the next hearing.
{¶18} On May 9, 2022, the trial court held another hearing on Hathorn’s request to represent himself. The trial court again discussed the potential penalties for the offenses charged and warned Hathorn that the maximum possible sentence was 38 years in prison. Hathorn then indicated he still wished to represent himself. The trial court continuеd to warn Hathorn of all the difficulties he would face if he were to represent himself and provided reasons as to why it was a bad idea. Hathorn continued to say he understood the court’s concerns, but that h still wished to do so. Eventually, the trial court determined that although the court believed the decision to be wrong, Hathorn was being very analytical
{¶19} The record in this case shows that the trial court went above and beyond what is required to determine whether the waiver of counsel was knowing, intelligently, and voluntarily made. Hathorn repeatedly stated he wished to represent himself. He provided numerous reasons for doing so and was fully informed of the seriousness of the offenses, the potential penalties that he was facing, and the risks of self-representation. Hathorn was even given extra time to reconsider his decision before the trial court accepted it. Given the record before this Court, we conclude that the waiver was knowingly, intelligently, and voluntarily given. The seventh assignment of error is overruled.
Actions of Standby Counsel – First Assignment of Error
{¶20} Hathorn claims in his first assignment of error that his right to self-representation was violated when the trial court permitted standby counsel to conduct voir dire. Generally, if a party is representing himself or herself, that party is not entitled to hybrid representation where counsel completes some of the tasks as counsel while the party completes others. State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227. Thus, Hathorn was not entitled to have Treece conduct the voir dire as the standby counsel. However, it appears from the record in this case that Hathorn agreed to have Treece conduct the voir dire. During the May 9, 2022 hearing, the trial court and the parties discussed potentially permitting counsel to conduct voir dire in order to prevent Hathorn from accidentally offending the potential jurors with his questions. At the end of the hearing, Treece indiсated he and Hathorn would discuss the matter. During voir dire, Treece introduced himself and indicated that he and Hathorn would be trying the case together. Although there is no agreement on the record by Hathorn to allow Treece to conduct the voir dire, Hathorn did not object to Treece conducting the voir dire. This apparent acquiescence invited any error that may have arisen. The doctrine of invited error specifies that a litigant may not take advantage of an error which he himself invited or induced. Hal Artz Lincoln–Mercury, Inc. v. Ford Motor Co., Lincoln–Mercury Div., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph one of the syllabus. This court has found invited error when a party has asked the court to take some action later claimed to be erroneous, or affirmatively consented to a procedure the trial judge proposed. State v. Campbell, 90 Ohio St.3d 320, 324, 2000-Ohio-183, 738 N.E.2d 1178. Since Hathorn consented to allowing Treece to conduct the voir dire, he cannot now complain that allowing it was reversible error. The first assignment of error is overruled.
Expert Witness Testimony – Third Assignment of Error
{¶21} Hathorn claims in his third assignment of error that the trial court erred by allowing the firearms examiner to testify regarding the holster in violation of
A witness may testify as an expert if all of the following apply:
(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by laypersons or dispels a misconception common among laypersons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:
(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably implements the theory;
(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.
{¶22} Hathorn argues that the trial court erred by permitting Matthew White (White), the firearms examiner with the Bureau of Criminal Investigation, to testify via deposition not only regarding the gun, but also about the holster and how Hathorn would have been able to access Brobst’s firearm while it was in the holster. A review of the record shows that White testified regarding the firearm. While examining the firearm, he also examined the holster and the belt. During his deposition, White testified to his observations about the firearm and its relation to the holster. White then conducted some simple tests and learned that when some pressure was aрplied to one side of the holster, the gun twisted enough to allow a gap to appear and that the gap provided access to the trigger of the firearm while it was still in the holster. The gap was big enough to get a finger on the trigger and activate it. This was not based upon any training, but upon his own personal observations when he and other examiners were conducting experiments to see how the gun was fired while still in the holster. This testimony was not based upon any expertise and was thus not the testimony of an expert on firearm holsters. This does not mean, though, that White could not testify regarding the holster.
{¶23}
Sufficiency of the Evidence – Fourth and Ninth Assignments of Error
{¶24} In the fourth and ninth assignments of error, Hathorn challenges the sufficiency of the evidence.
A sufficiency analysis “‘determine[s] whether the case may go to the jury or whether the evidence is legally sufficient
to support the jury verdict as a matter of law.’” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997), quoting Black‘s Law Dictionary 1433 (6th Ed.1990). If the state fails to present sufficient evidence on every element of an offense, then convicting a defendant for that offense violates the defendant‘s right to due process of law. Id. at 386-387, 678 N.E.2d 541; see also Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
State v. Messenger, 171 Ohio St.3d 227, 2022-Ohio-4562, ¶ 13, 216 N.E.3d 653. The question of whether the evidence presented at trial is legally sufficient to support a verdict is a question of law and questions the adequacy of the evidence. State v. Hulbert, 3d Dist. Van Wert No. 15-19-07, 2021-Ohio-2298, ¶ 5. An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admittеd at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1981), paragraph two of the syllabus, superseded by statute on other grounds. After viewing the evidence in a light most favorable to the prosecution, an appellate court must consider whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts
nor assess the credibility of witnesses, as both are functions reserved for the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4557, ¶ 33.
{¶25} In the fourth assignment of error, Hathorn argues that the State failed to present sufficient evidence that he failed to comply with an order or signal of a police officer. Hathorn was indicted for a violation of
{¶26} This question has been addressed by the 12th District Court of Appeals in State v. Everitt, 12th Dist. Warren No. CA2002-07-070, 2003-Ohio-2554. In Everitt, the defendant was signaled to pull over and the defendant complied with the signal by coming to a stop on the side of the road. The defendant even left his vehicle to have a discussion with the officer. An argument broke out and the defendant shoved the officer. At that time, the officer informed the defendant that he was under arrest for assaulting an officer. The defendant then fought with the officer by pushing him down and attempting to get ahold of the officer‘s weapon. Eventually, the defendant went back to his vehicle and restarted it. He then drove off with the officer hanging out of the window. On appeal, the defendant claimed that his conviction for failing to comply with a signal of a police officer by fleeing in a vehicle was not supported by sufficient evidence. The 12th District Court sustained the conviction finding that the officer had ordered him to quit resisting
{¶27} Similar to the facts in Everitt, Hathorn came to a complete stop in this case and exited the vehicle. Hathorn complied with the police officer‘s order to stop fоr several minutes. However, Hathorn then chose to break the compliance by striking Brobst. Brobst testified that during the struggle, he was shouting orders at Hathorn to stop what Hathorn was doing and to get off Brobst. Additionally, the lights atop the cruiser were still active when Hathorn fled from the scene. Brobst also testified that he did not tell Hathorn that he was free to leave at any time. Viewing the evidence in a light most favorable to the State, the evidence was sufficient to support that Hathorn failed to comply with an order or signal of a police officer by fleeing the scene in his motor vehicle. The evidence also supports the conclusion that Hathorn fled the scene immediately after committing a felony.
{¶28} In the ninth assignment of error, Hathorn claims that the evidence was insufficient to support a conviction in Counts One through Four, including the gun specifications attached to Counts One and Two. Count One was a charge of felonious assault in violation of
{¶29} Regardless of whether Hathorn intended to shoot Brobst, he acted with intent when he struck Brobst and then continued to struggle. Brobst testified that Hathorn punched him and then initiated a struggle. Brobst also testified that he was turning in an attempt to prevent Hathorn from getting his firearm. At one point during the struggle, Brobst felt Hathorn grabbing his taser and Brobst told him to stop. When the two continued wrestling, they fell over the guardrail, hit the ground, and began rolling around. Brobst testified that he kept his hands on Hathorn‘s shoulders to try and prevent Hathorn from reaching his weapons. Brobst was not sure were Hathorn‘s hands were and then he heard a shot go off and immediately felt a warm sensation and extreme pain. Brobst also testified that during the struggle, his belt was getting twisted back and forth by Hathorn. Since Brobst‘s hands were on Hathorn‘s shoulders, Brobst did not fire the firearm, leaving only Hathorn to pull the trigger. Additionally, Allison Mansius, a DNA forensic scientist at the Bureau of Criminal Investigation,
{¶30} Hathorn also challenges the element that he used a deadly weapon, claiming that there was no evidence that he ever had control of the firearm. A firearm is defined as a deadly weapon.
{¶31} Hathorn challenges the firearm specification for Count One, in violation of
{¶32} Hathorn challenges the conviction pursuant to Count Two, aggravated robbery in violation of
{¶34} Having reviewed the evidеnce presented and viewed it in a light most favorable to the State, the evidence was sufficient to support convictions in Counts One, Two, Three, Four and Five. The evidence was also sufficient to support the gun specification as to Count One. The fourth and ninth assignments of error are overruled.
Prosecutorial Misconduct – Eighth Assignment of Error
{¶35} Hathorn claims in the eighth assignment of error that the State engaged in prosecutorial misconduct by misstating the evidence during closing arguments and injecting statements regarding credibility. “The test regarding prosecutorial misconduct during closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected the defendant‘s substantial rights.” State v. Harrison, 3d Dist. Logan No. 8-14-16, 2015-Ohio-1419, ¶ 50, 31 N.E.3d 220. A defendant must show that there is a reasonable probability that, but for the prosecutor‘s improper remarks, the results of the trial would have been different. State v. Gideon, 3d Dist. Allen No. 1-18-27, 2021-Ohio-1863, 174 N.E.3d 381.
Prosecutors may comment during the summation on the evidence and the reasonable inferences that may be drawn from it. State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). However, while a prosecuting attorney “may strike hard blows, he is not at liberty to strike foul ones.” Berger v. United States, 295 U.S. 78, 88 (1935). “The touchstone of the analysis ‘is the fairness of the trial, not the culpability of the prosecutor.‘” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 155, 818 N.E.2d 229 quoting Smith v. Phillips, 455 U.S. 209, 219 (1982).
{¶36} Here, Hathorn claims that the prosecutor acted improperly due to the statements made during closing arguments. Hathorn claims that the prosecutor acted improperly by misstating the evidence during closing argument and by indicating that Hathorn‘s claims were “preposterous“. This Court notes initially that closing arguments are not evidence and the trial court properly instructed the jury of this.
The evidence does not include the indictment, the opening statements or closing arguments of counsel or the Defendant. The opening statements and closing arguments are designed to assist you in your effоrts to arrive at a fair and just verdict.
* * *
You are the sole judges of the facts, the credibility of the witnesses, and the weight of this evidence.
Merger of Allied Offenses – Second Assignment of Error
{¶37} Hathorn argues in the second assignmеnt of error that the trial court erred by failing to merge Counts One and Two. “Whether offenses are allied offenses of similar import is a question of law that this Court reviews de novo.” State v. Meeks, 3d Dist. Defiance No. 4-20-02, 2020-Ohio-5050, ¶ 9.
A trial court and the reviewing court on appeal when considering whether there are allied offenses that merge into a single conviction under
R.C. 2941.25(A) must first take into account the conduct of the defendant. In other words, how were the offenses committed? If any of the following is true, the offenses cannot merge and the defendant may be convicted and sentenced for multiple offenses: (1) the offenses are dissimilar in import or significance—in other words, each offense caused separate, identifiable harm, (2) the offenses were committed separately, or (3) the offenses were committed with separate animus or motivation.
State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 25, 34 N.E.3d 892.
{¶38} In this case, Hathorn was convicted of felonious assault for shooting Brobst and aggravated burglary for attempting to remove Brobst‘s firearm. These actions were separate, distinct acts. Hathorn completed the aggravated burglary when he first attempted to get ahold of the firearm. Testimony was presented that he had grabbed the taser, which was in the location where a firearm would normally be on the average officer. After learning it was a taser, Hathorn continued to keep his hands near Brobst‘s waist and was pulling on Brobst‘s belt. A reasonable juror could determine that the purpose for Hathorn‘s conduct was to try and get his hands on the firearm. Thus, these actions support the conviction for the aggravated burglary. Hathorn completed the felonious assault when he fired the firearm, causing serious physical injury to Brobst, which is a different conduct from merely attempting to remove the firearm. Although these actions occurred within a short period of time, that alone does not make them one act. They are still distinct, separate actions and, as such, the actions are not allied offenses of similar import and are not subject to merger. The second assignment of error is overruled.
Indefinite Sentences – Fifth Assignment of Error
{¶39} Hathorn‘s fifth assignment of error alleges that the trial court erred by imposing an indefinite sentence as to Count One pursuant to the Reagan Tokes Act. Specifically, Hathorn claims that the Reagan Tokes Act violates the separation of powers and denies his due process rights, thus making the statute unconstitutional as applied and on its face.
{¶41} Having found no error prejudicial to the appellant in the particulars assigned and argued, the judgment of the Court of Common Pleas of Hancock County is affirmed.
Judgment Affirmed
WALDICK and ZIMMERMAN, J.J., concur.
/hls