STATE OF OHIO, Plaintiff-Appellee -vs- CLASSIE NICOLE HAWTHORNE, Defendant-Appellant
Case No. 2019CA00055
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
March 2, 2020
[Cite as State v. Hawthorne, 2020-Ohio-756.]
Hon. William B. Hoffman, P. J., Hon. John W. Wise, J., Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2018CR00950; JUDGMENT: Reversed and Remanded
For Plaintiff-Appellee
JOHN D. FERRERO PROSECUTING ATTORNEY RONALD MARK CALDWELL ASSISTANT PROSECUTOR 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413
For Defendant-Appellant
LAURA L. MILLS PIERCE C. WALKER MILLS, MILLS, FIELY & LUCAS, LLC 101 Central Plaza South Suite1200 Canton, Ohio 44702
Wise, J.
O P I N I O N
{¶1} Appellant Classie Hawthorne appeals her conviction, in the Court of Common Pleas, Stark County, for voluntary manslaughter and other offenses. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.
{¶3} Just a few days before the shooting, appellant and her children had moved out of the marital residence, located on Concord Street S.W. in Canton. On Sunday evening, May 20, 2018, appellant and Cleveland exchanged several heated text messages, with Cleveland accusing appellant of pulling a gun on him three different times. Nonetheless, Cleveland said in one message that he wanted to meet with appellant.
{¶4} On the morning of May 21, 2018, appellant came to Cleveland‘s residence, sprayed charcoal lighter fluid onto his automobile, and lit it. This event was captured by one of Cleveland‘s home security cameras. Cleveland saw what had happened, and he yelled for someone to call the police as he stamped out the flames.
{¶5} Two of Cleveland‘s neighbors, Tammy M. and Rodney P., heard Cleveland yell. Appellant had left the area after lighting the fluid, so Cleveland decided to cope with the situation by asking Rodney to transport him to another location to retrieve his second vehicle, a pickup truck. Rodney and Cleveland left at about 10:30 AM to get the truck, and they returned about a half-hour later. Rodney then went to work.
{¶6} Despite the aforesaid incidents, appellant decided to get some fast food for Cleveland. The two then met at the Cedar School parking lot. Some of their encounter was recorded by a school security video camera. Cleveland got into appellant‘s Equinox, and the two sat there for a period of time. During this time, appellant got out of her SUV
{¶7} Appellant also exited, from the driver‘s side, armed with her .380 caliber Ruger semiautomatic handgun. Standing behind the opened door, appellant brought the handgun up and took aim at Cleveland, who stopped and turned to run away. Appellant fired one shot into Cleveland‘s chest, which penetrated his heart. Cleveland was able to run about thirty feet, but he collapsed and died a couple of minutes later. Tr. at 461-469, 550, 555.
{¶8} Keith E., who lived next to the church, later testified that on the day of the shooting, he was trimming some weeds in his yard and heard what turned out to be appellant‘s SUV pull into the church parking lot. Keith at first thought the vehicle belonged to the church‘s pastor. Seeking to avoid a long interruption in his yard work, Keith went into his garage. He then heard a quick honk of the horn from the vehicle, and then nothing until after three minutes later. At that time, Keith heard a high agitated female voice say, “You done messed with the wrong bitch, mother fucker!” which was then followed by a gunshot. Keith then heard a shocked and surprised male voice say, “You shot me! Fuck!” Tr. at 243. He then heard someone running on the gravel, and then falling.
{¶9} Keith ran into his house to retrieve his gun, fearing that there had been a gang shooting. While getting his gun, Keith called 911.
{¶10} In the meantime, Tammy M., the aforementioned neighbor, was with her son when she heard a “bang” sound. Her son went to investigate, and when she heard him yell, she ran to the church parking lot area to assist. Although Cleveland died quickly,
{¶11} One of appellant‘s friends, Rene B. came to the scene of the shooting. Responding police officers obtained Rene‘s assistance in convincing appellant to return to the scene. Appellant was subsequently taken into custody.
{¶12} Appellant was indicted on July 27, 2018 for felony murder (
{¶13} A jury trial commenced on January 22, 2019. Appellant‘s defense counsel initially pursued a battered woman syndrome defense, but she did not maintain same through the end of the case. In addition, among other things, appellant via counsel objected to the State‘s request for a voluntary-manslaughter instruction, but the trial court overruled her objection.
{¶14} The jury reached a verdict on January 30, 2019. Appellant was found not guilty of felony murder, but guilty of voluntary manslaughter and the remaining counts. A sentencing hearing was held on February 11, 2019, following which appellant was sentenced to a total of thirteen years in prison. The trial court issued its final judgment entry of sentencing on February 13, 2019.
{¶15} In the meantime, on February 6, 2019, appellant filed a post-conviction motion for a new trial regarding the offense of voluntary manslaughter. In her motion, appellant argued that the trial court had erred in instructing the jury on the inferior offense of voluntary manslaughter, contending this offense is not a lesser included offense or
{¶16} On April 10, 2019, appellant filed a notice of appeal, covering both the final sentencing entry and the denial of her motion for a new trial. She herein raises the following four Assignments of Error:
{¶17} “I. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY ON THE INFERIOR DEGREE OFFENSE OF VOLUNTARY MANSLAUGHTER AS REQUESTED BY APPELLEE AND OVERRULING APPELLANT‘S MOTION FOR A NEW TRIAL PURSUANT TO CRIMINAL RULE 33.
{¶18} “II. THE TRIAL COURT ERRED BY ADMISSION OF THE DVR VIDEO WHEN IT WAS THE PRODUCT OF AN ILLEGAL SEARCH AND WAS NOT AUTHENTICATED AT TRIAL.
{¶19} “III. THE TRIAL COURT ERRED BY PERMITTING SPECIAL AGENT VOLPE OF THE FBI TO READ TEXT MESSAGES INTO EVIDENCE IN OPEN COURT BETWEEN THE DEFENDANT AND CLEVELAND HAWTHORNE.
{¶20} “IV. THE TRIAL COURT ERRED IN NOT PERMITTING THE CRIMINAL HISTORY AND FBI INVESTIGATION OF CLEVELAND HAWTHORNE TO BE PRESENTED AT TRIAL.”
I.
{¶22}
{¶23} The Ohio Supreme Court has explained that, under
{¶24} Thus, under the circumstances of the present appeal, our analysis of whether or not the jury in appellant‘s case should have been instructed on the unindicted offense of voluntary manslaughter “begins by first determining whether the requested instruction falls within the statutory definition of a lesser included offense or inferior degree offense.” See State v. Ledbetter, 2nd Dist. Greene No. 93-CA-54, 1994 WL 558996. However, the parties herein are not primarily focused on the question of whether voluntary
{¶25} In the case sub judice, appellant was indicted inter alia on one count of felony murder, although she was ultimately found not guilty on said count.
{¶26} In addition, at the request of the State, and over appellant‘s objection during the trial, the trial court instructed the jury on voluntary manslaughter, and appellant was ultimately convicted of committing this offense.
{¶27} Several observations are noteworthy in our present analysis. First, felony murder under
{¶28} Thus, in contrast to voluntary manslaughter, “[f]elony murder under
{¶30} In its response, the State inter alia relies upon three Ohio Supreme Court cases for its proposition that voluntary manslaughter is an inferior degree offense of felony murder. See Appellee‘s Brief at 10, citing State v. Tyler, 50 Ohio St.3d 24, 36, 553 N.E.2d 576, 592 (1990); State v. Deem, 40 Ohio St.3d 205, 209, 533 N.E.2d 294, 298 (1988); State v. Rhodes, 63 Ohio St.3d 613, 617, 590 N.E.2d 261 (1992). However, a close review of the aforecited cases reveals that Tyler involved an indictment for aggravated murder (
{¶32} However, the State‘s responsive argument in this regard is not persuasive. Of the aforesaid six cases, three (Sekulic, Hunter, and Ortiz) involved charges of aggravated murder (
{¶33} Accordingly, we find the rationale of the Ninth District in Davis, supra, applicable in the present case. The jury was improperly provided with the option of convicting appellant of knowingly killing Cleveland in a fit of rage or under the influence of passion, a crime for which she had not been indicted, particularly where the jury simultaneously acquitted her on the charge of killing Cleveland as a proximate result of her knowingly committing the crime of felonious assault. We therefore find merit in appellant‘s contention that the trial court erred as a matter of law by instructing the jury on voluntary manslaughter as a supposed inferior degree offense, where she had been indicted for felony murder under
{¶34} Appellant‘s First Assignment of Error is therefore sustained.2
II., III., IV.
{¶35} We find the remainder of appellant‘s arguments set forth in her Second, Third, and Fourth Assignments of Error to be premature and/or moot based on our above conclusions. See
By: Wise, J.
Delaney, J., concurs.
Hoffman, P. J., concurs in part and dissents in part.
JWW/d 0113
{¶37} I fully concur in the majority‘s analysis of Appellant‘s first assignment of error. My disagreement with the majority is to the legal ramification of such decision.
{¶38} Appellant was acquitted by the jury of felony murder and this Court, including myself, have concluded it was error to instruct the jury on voluntary manslaughter. I believe such conclusion requires reversal of Appellant‘s conviction of voluntary manslaughter, but not a remand for new trial.
{¶39} While I agree an improper jury instruction “normally” requires a reversal and remand for new trial, this is not the normal case. When a properly indicted charge or properly applicable inferior offense has been presented to the jury using an erroneous instruction related to that charge, and the error is deemed prejudicial, reversal and remand for new trial is the appropriate disposition. However, where, as in the case sub judice, the felony charge at issue (voluntary manslaughter) was never indicted by the grand jury and has been found not to be an inferior offense of the indicted felony (felony murder,
{¶40} Because I find a new trial unnecessary, I also disagree with the majority‘s conclusion Appellant‘s second, third, and fourth assignments of error are premature and/or moot as they also pertain to Appellant‘s convictions on felonious assault with a firearm specification and improperly handling firearms in a motor vehicle. Those convictions are independent of our resolution of Appellant‘s first assignment of error.