State v. Hathorn

2023 Ohio 3936, 227 N.E.3d 438

• Court: Ohio Court of Appeals
• Decided: October 30, 2023
• Docket: 5-22-17
• Status: Published

Opinion

[Cite as State v. Hathorn, 2023-Ohio-3936.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

STATE OF OHIO, CASE NO. 5-22-17 PLAINTIFF-APPELLEE,

v.

ROBERT T. HATHORN, OPINION

DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court Trial Court No. 2021 CR 421

Judgment Affirmed

Date of Decision: October 30, 2023

APPEARANCES:

Jesse E. Scott for Appellant

Phillip A. Riegle for Appellee Case No. 5-22-17

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 speeding. 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.

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{¶3} Brobst called in Hathorn’s information to dispatch and then advised

Hathorn of his Miranda rights. Brobst then asked Hathorn about the odor of

marijuana coming from the vehicle. Hathorn indicated that the passenger had

smoked marijuana in Michigan prior to getting in the vehicle. Brobst informed

Hathorn that due to the odor of marijuana he had probable cause to search the

vehicle and was waiting for another unit to arrive before conducting the search, as

was required by Ohio State Highway Patrol’s policy. Brobst also informed Hathorn

that he would issue a warning on the speed and a citation for the seat belt violation.

The two engaged in small talk while waiting for the second unit to arrive.

Eventually Hathorn asked if they were waiting for the other unit or just waiting for

Brobst to write the ticket. Brobst responded that they were waiting for the other

unit. Hathorn then punched Brobst in the left side of the face and a struggle began.

{¶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 and 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,

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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 R.C. 2903.11(A)(2), a felony of

the first degree; 2) Aggravated Robbery in violation of R.C. 2911.01(B), a felony

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of the first degree; 3) Having Weapons While Under Disability in violation of R.C.

2923.13(A)(2), a felony of the third degree; 4) Having Weapons While Under

Disability in violation of R.C. 2923.13(A)(3), a felony of the third degree; 5) Failure

to Comply with Order or Signal of Police Officer in violation of R.C. 2921.331, a

felony of the fourth degree; and 6) Tampering with Evidence in violation of R.C.

2921.12(A)(1), a felony of the third degree. Firearm specifications were attached

to Counts One and Two. Retained counsel for Hathorn entered a notice of

appearance on November 18, 2021. During the pretrial hearing on January 27, 2022,

Hathorn discharged his counsel and requested to either be given time to find new

retained counsel or to represent himself. The trial court then granted a continuance.

On February 14, 2022, the trial court appointed Alex Treece (“Treece”) as counsel

for Hathorn after finding Hathorn to be indigent. On May 9, 2022, Hathorn filed a

waiver of right to counsel indicating that he wished to represent himself. The trial

court on May 16, 2022, granted Hathorn’s request to represent himself, but

appointed Treece to act as standby counsel.

{¶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

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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 R.C. 2929.14 and ordered all of the sentences, except that imposed

as to Count 3, be served consecutively for an aggregate prison term of 26 to 31

years. Hathorn appealed from this judgment. On appeal, Hathorn raises the

following assignments of error.1

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.

1 The first five assignments of error were filed by original appellate counsel. Then new counsel took over and filed a supplemental brief with four additional assignments of error.

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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 court 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

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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. R.C. 2945.37(G).

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.

R.C. 2945.37(B). “Due process requires a court to hold a hearing when it has been

presented with a ‘sufficient indicia of incompetence.’” State v. Lawson, 165 Ohio

St.3d 445, 2021-Ohio-3566, ¶ 51, 179 N.E.3d 1216. In cases where the trial court

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does not hold a competency hearing, the failure is harmless error when the record

fails to reveal sufficient indicia of incompetency. State v. Bock, 28 Ohio St.3d 108,

110, 502 N.E.2d 1016 (1986).

{¶11} Incompetency in Ohio is not “equated 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 hearing.

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

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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

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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.

May 4 Tr. 10-11. The dialogue above as well as the comments in January and

February regarding the perceived bias of appointed counsel do not indicate that

Hathorn lacked competence. Instead they indicate that Hathorn, based upon his

experiences in life, did not trust appointed counsel. Hathorn’s lack of trust in the

system, as foolish as a court may consider it, is based upon his past and rational

conclusions based upon his experiences. This does not raise concerns about

competency.

{¶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

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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

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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.

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{¶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 people 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

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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 continued 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” and allowed Hathorn to represent

{¶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

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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 indicated

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

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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

Evidence Rule 702. The rule states as follows.

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:

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(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.

Evid.R. 702.

{¶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 applied 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

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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} Evidence Rule 701 permits witnesses to testify to opinions and

conclusions that are drawn from facts observed as long as it is helpful to a

determination of a fact in issue. Evid.R. 701. White testified that he conducted tests

and found that pressure, either by pushing or pulling the firearm away from the

wearer caused the physical gap between the holster and the firearm to increase,

causing the trigger to be more exposed. White identified Ex. 18 from the deposition

as a picture showing how this was possible. He then identified Ex. 19 from the

deposition as pictures showing how his finger could reach the trigger while the gun

was still in the holster. Ex. 20 for the deposition showed White being able to access

the trigger while a coworker was wearing the holster. White finally testified that

one of his coworkers was able to actuate the trigger meaning that it was capable of

firing. This testimony did not reflect any scientific expertise, but rather was based

upon the witness’s own observations. These observations would be helpful to a

juror determining whether it was possible for Hathorn to have pulled the trigger

while the firearm was still in the holster. Thus, the testimony was permitted

pursuant to Evid.R. 701 despite the fact that White is not an expert in firearm

holsters. The third assignment of error is overruled.

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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 admitted 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

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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 R.C. 2921.331(B), (C)(4).

Thus, the State was required to prove that Hathorn 1) operated a motor vehicle to

willfully flee a police officer 2) after receiving a signal to stop and 3) he did so

immediately after committing a felony. The undisputed facts in this case clearly

show that after the altercation with Brobst, Hathorn fled the scene of the altercation

in his vehicle, so the first element of the offense is clearly met. Additionally,

viewing the evidence in a light most favorable to the State, it is clear that Hathorn

left the scene after Brobst was shot by him, a felony. This meets the third element.

This leaves only the second element in dispute – the question of whether the prior

signal to stop, with which Hathorn had complied up until that time, was still in

effect.

{¶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

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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

and give up before the defendant left the scene.

{¶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

for 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.

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{¶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 R.C. 2903.11(A)(2). To prove this charge, the State

had to prove that Hathorn 1) knowingly caused or attempted to cause 2) serious

physical harm to another 3) by using a deadly weapon. R.C. 2903.11(A)(2).

Hathorn argues on appeal that the state failed to prove that Hathorn acted knowingly

or that he used the deadly weapon. “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.” R.C. 2901.22. This does not mean

that a defendant has to intend the result of the actions, merely that “the defendant

acted with an awareness that the conduct probably would cause” the harm that

resulted. State v. McCurdy, 10th Dist. Franklin No. 13 AP-321, 2013-Ohio-5710, ¶

16. “It is a fundamental principle that a person is presumed to intend the natural,

reasonable and probable consequences of his voluntary acts.” State v. Conway, 108

Ohio St.3d 214, 2006-Ohio-791, ¶ 143, 842 N.E.2d 996. A defendant need not

foresee the exact consequences of his actions. State v. Magee, 12th Dist. Clermont

No. CA2019-11-083, 2020-Ohio-4351, 158 N.E.3d 630. “To be actionable it is only

necessary that the result is within the natural and logical scope of risk created by the

conduct.” State v. Taylor, 12th Dist. Fayette No. CA2018-11-021, 2019-Ohio-3437

¶ 46.

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{¶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, testified that she found DNA belonging to

Hathorn on the trigger of the gun. Hathorn acted knowingly when he engaged in a

struggle with Brobst and attempted to get hold of Brobst’s weapons. The fact that

a loaded firearm may discharge during a struggle involving the firearm is a within

the logical scope of the risk created by Hathorn’s behavior. As such, he can be

found to have acted knowingly for the purpose of a felonious assault charge.

{¶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

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firearm is defined as a deadly weapon. R.C. 2923.11(B)(1). There is no dispute

that no testimony was presented by Brobst or anyone else that Hathorn had control

of the weapon. When Brobst removed the weapon, it was still latched in its holster.

However, Brobst testified that his hands were on Hathorn’s shoulders. Brobst also

testified that Hathorn was attempting to get his hands on Brobst’s weapons and that

he was unable to see Hathorn’s hands when the shot fired. White testified that it

was possible for a person to get a finger on the trigger and fire the gun while the gun

was still in the holster if enough pressure was applied to the side of the holster.

Additionally, Hathorn’s DNA was found on the trigger. Viewing this evidence in a

light most favorable to the State, a reasonable juror could infer from the evidence

that Hathorn was the one to control the firing of the gun. Thus, the evidence is

sufficient to support the conviction for felonious assault.

{¶31} Hathorn challenges the firearm specification for Count One, in

violation of R.C. 2941.1412. This specification applies to one who discharges a

firearm at a police officer. Brobst testified that at the time of the offense he was

working as a state trooper. As discussed above, the evidence, viewed in a light most

favorable to the state, showed that Hathorn fired a firearm and struck Brobst. Thus,

the elements of the specification are met. The evidence is sufficient to support the

conviction.

{¶32} Hathorn challenges the conviction pursuant to Count Two, aggravated

robbery in violation of R.C. 2911.01(B). The statute requires the State to prove that

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Hathorn 1) knowingly 2) removed or attempted to remove a deadly weapon 3) from

a police officer when 4) the officer is acting within the scope of his duties and 5) the

offender knows the officer is an officer. Here, there is no dispute that Brobst was a

police officer, that Hathorn knew he was a police officer, or that Brobst was acting

within the scope of his duties at the time of the incident. Brobst testified that

Hathorn had grabbed ahold of his taser. Brobst also testified that he is left handed

so, his firearm was on the left side of his body rather than the right. This would

mean that the taser was where the firearm would be on an officer who was right

handed. During the struggle, Brobst felt his belt being twisted back and forth and

Hathorn’s hands were the only ones down that low. Viewing this evidence in a light

most favorable to the State, a reasonable juror could conclude that Hathorn was

attempting to remove Brobst’s firearm when he reached for the taser. The jurors

could also reasonably conclude that Hathorn was still attempting to reach the

firearm as the struggle continued. Thus, the evidence is sufficient to support the

conviction for the aggravated robbery.2

{¶33} Counts Three and Four charged Hathorn with having weapons while

under a disability. For Count Three, the State was required to prove that Hathorn

knowingly acquired, had, carried, or used a firearm after having previously been

convicted of a felony offense of violence. The State was required to prove for Count

2 We need not consider whether sufficient evidence supported a finding regarding the second gun specification as the two were determined by the trial court to merge and the State elected to proceed under the first gun specification.

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Four that Hathorn had previously been convicted of a felony offense involving the

illegal possession, use, sale, or trafficking in drugs. Hathorn stipulated to his prior

prerequisite convictions for Counts Three and Four. Tr. 345. This Court has already

determined that the evidence was sufficient to show that Hathorn fired the gun in

Brobst’s holster, which would show that he “used” a firearm. Therefore, the

evidence also supports a conviction for having weapons while under disability.

{¶34} Having reviewed the evidence 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.

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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, 55

S.Ct. 629, 79 L.Ed. 1314 (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, 102 S.Ct. 940, 71 L.Ed.2d 78 (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 efforts 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.

Tr. 1376. Thus, the jury was instructed not to consider the statements of the

prosecutor when determining what the evidence showed or to consider the beliefs

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of the prosecutor when determining the facts. Viewing the whole of the trial, this

Court does not find that Hathorn was denied a fair trial due to prosecutorial

misconduct. The evidence against Hathorn was substantial and there is little chance

that the alleged improper comments affected the outcome of the trial. State v.

McAlpin, 169 Ohio St.3d 279, 2022-Ohio-1567, 204 N.E.3d 459. Given the

evidence and the mitigation caused by the jury instructions, we do not find that the

statements by the prosecutor rose to the level of misconduct and affected the

outcome of the trial. The eighth assignment of error is overruled.

Merger of Allied Offenses – Second Assignment of Error

{¶37} Hathorn argues in the second assignment 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.

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{¶38} In this case, Hathorn was convicted of felonious assault for shooting

Brobst and aggravated robbery for attempting to remove Brobst’s firearm. These

actions were separate, distinct acts. Hathorn completed the aggravated robbery

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

robbery. 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.

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{¶40} This Court has previously addressed the issue of whether the Reagan

Tokes Act violate the separation of powers and due process requirements by

allowing the executive branch of the government to determine the ultimate length

of the sentence. This Court has repeatedly determined that the imposition of an

indefinite sentence is not unconstitutional on its face or as applied. State v. Elliott,

3d Dist. Logan No. 8-21-35, 2022-Ohio-3778, 199 N.E.3dd 944; State v. Harrison,

3d Dist. Logan No. 8-22-05, 2022-Ohio-2537; State v. Rebarchek, 3d Dist. Hancock

No. 5-21-02, 2021-Ohio-3142; State v. Crawford, 3d Dist. Henry No. 7-20-05,

2021-Ohio-547; and State v. Hacker, 3d Dist. Logan No. 8-20-01, 2020-Ohio-5048,

161 N.E.3d 112. The Supreme Court of Ohio recently affirmed our position in State

v. Hacker, ___ Ohio St.3d ___, 2023-Ohio-2535, ___ N.E.3d ___. For this reason,

the fifth assignment of error is overruled.

{¶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.

WALDICK and ZIMMERMAN, J.J., concur.

/hls

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