[Cite as State v. Hanners,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29375 : v. : Trial Court Case No. 2020-CRB-3626 : SHAWN A. HANNERS : (Criminal Appeal from : Municipal Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 18th day of November, 2022.

...........

STEPHANIE L. COOK, Atty. Reg. No. 0067101 & ALISSA SCHRINER, Atty. Reg. No. 0089388, Assistant Prosecuting Attorneys, City of Dayton Prosecutor’s Office, Appellate Division, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee

V. GAYLE MILLER, Atty. Reg. No. 0091528, 120 West Second Street, Suite 320, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

LEWIS, J. -2-

{¶ 1} Defendant-Appellant Shawn A. Hanners appeals from his conviction

following a jury trial for one count of menacing, a misdemeanor of the fourth degree. For

the reasons that follow, the judgment of the trial court will be affirmed.

I. Procedural History and Facts

{¶ 2} On November 24, 2020, Hanners was charged by way of complaint in the

Dayton Municipal Court with one count of aggravated menacing in violation of R.C.

2903.21(A), a misdemeanor of the first degree, and one count of menacing in violation of

R.C. 2903.22, a misdemeanor of the second degree. The charges arose from an

incident that was alleged to have occurred on November 21, 2020, in the City of Dayton.

{¶ 3} Hanners entered a plea of not guilty at his arraignment and was appointed

counsel. Jessica Musselman was charged as a co-defendant as a result of the same

incident for similar offenses. Consequently, the State filed a motion to consolidate the

two cases for trial, which was granted. The case proceeded to a joint jury trial on October

20-21, 2021. Dayton Municipal Court Magistrate Colette Moorman presided over the

trial as acting judge.

{¶ 4} Duiene Stanfield testified first for the State. She stated that on the evening

of November 21, 2020, she was in a car with her husband, Christopher Stanfield, near

the intersection of Linden and Smithville heading toward their home. 1 While at the

stoplight, she observed four unknown black teenagers in the parking lot of a gas station,

which was on one of the corners of the intersection. She also saw two white males, one

of whom was later identified as Hanners, and a white female, later identified as

1 For ease of discussion, we will refer to the Stanfields by their first names throughout this opinion. -3-

Musselman, in a yard behind a white house that sat behind the gas station. Duiene saw

the teenagers and the adults yelling at each other. Although Duiene and Christopher

turned at the light to head home, they decided to turn around and go back to intervene.

When Duiene and Christopher returned to the gas station parking lot, Christopher got out

of the car and told Duiene to call 911, which she did. Duiene observed the two white

males throwing things (chairs, lighter fluid, and bricks) and observed Musselman with a

butcher knife. While the teenagers were standing in the parking lot, Hanners hit one of

them in the chest with a brick, resulting in some bleeding. Christopher got the teenagers

further away from the yard to talk to them and to tend to the teenager who was injured.

{¶ 5} While Duiene was standing just outside her car on the phone with 911,

Musselman began screaming at Duiene. Musselman yelled profanities at Duiene, told

her to stay out of their business, and stated “I’ll kill you b****.” Trial Tr. 56. Additionally,

while holding the butcher knife above her head and moving it side to side, Musselman

repeatedly told Duiene “I see you,” that she could see her car, and that she could see her

license plate. They did not know each other prior to their interaction that evening.

{¶ 6} Although the unknown white male had gone into the house, he returned

outside with a large white pit bull. Hanners, who was holding the dog’s chain, let the

chain go and told the dog to “get the kids.” Duiene testified she was scared and

concerned for her husband’s safety, because he was standing near the kids when the

dog was let loose. Meanwhile, Musselman continued to yell derogatory insults at Duiene

and again screamed that she would kill her even after the police arrived at the scene. Id.

at 58. -4-

{¶ 7} According to Duiene, while police were at the scene, Hanners put the dog

back inside the house and then came outside and threw a chair. During that time,

Hanners was screaming “I don’t give a f***. I’ll f*** all of you up.” Id. at 59. Duiene

stated that the threats from Hanners scared her and that she was still scared while

testifying at court. Duiene explained that she was very afraid because even after the

police arrived, she had been scared that Hanners and Musselman were going to charge

her and that she would get hit. Id. at 60.

{¶ 8} Christopher Stanfield also testified for the State. He stated that he and

Duiene were driving home and saw the group of kids and the two adults “jawing” at each

other, and they all appeared angry. Based on what he saw, he and Duiene turned their

car around and parked in the gas station parking lot to intervene. Once they parked their

car, they could hear the teenagers and the adult males screaming back and forth.

Christopher got out of the car and yelled at the kids to get back and told his wife to call

911. Two of the kids came back toward Christopher, but the other two stayed up by the

backyard and continued yelling with the adults. According to Christopher, one of the

male adults threw a rock and hit one of the kids in the chest. At that point, Christopher

was scared for his own safety. Christopher also observed Musselman outside with a

knife, screaming and yelling. Christopher heard Musselman threaten to kill his wife.

Although Christopher saw a chair get thrown, he did not identify who threw the chair. He

also observed the dog outside but was unaware of how it got outside.

{¶ 9} The last witness for the State was Dayton Police Officer Christopher White.

White testified that he had responded to the 911 call around 4:30 p.m. to the gas station -5-

on Smithville Road. When he arrived, he observed the parties yelling at each other, and

they were all very agitated. Although he did not recall specifically what anyone had been

yelling, he did recall that Hanners had yelled at him to leave the property and had stated

that they did not want police help. White testified that both Musselman and Hanners

were very unpleasant and angry. White observed an abrasion on the side juvenile who

had been injured.

{¶ 10} At the conclusion of the State’s case, Hanners made a Crim.R. 29 motion

for acquittal, which was overruled. He also requested a jury instruction for the lesser

included offense of disorderly conduct, in violation of R.C. 2917.11(A)(1), a minor

misdemeanor. The trial court denied Hanners’ requested instruction.

{¶ 11} Hanners elected not to testify, but Musselman testified on her own behalf.

Musselman claimed that she had not seen the Stanfields until after the police arrived and

that she had not been paying any attention to them because her focus was on the

juveniles. Musselman indicated she was terrified for herself and her child’s life, who

remained inside the house. She did not see any weapons on the Stanfields, and they

never approached her property. Musselman denied doing anything Duiene testified to

during trial, although she later admitted that she was outraged and yelled profanities

during the incident.

{¶ 12} The jury found Hanners not guilty of aggravated menacing but guilty of

menacing. After a presentence investigation report was completed, Hanners was

sentenced to 30 days in jail, all of which was suspended, was ordered to: complete six

months of community control under basic supervision, complete “PAC” and anger -6-

management, and pay a fine of $100 and court costs. That same day, a “Final

Appealable Entry & Order” was filed reflecting the above-imposed sentence.

{¶ 13} Hanners filed a request to stay his sentence for purposes of appeal, which

the trial court granted. Hanners then filed a timely notice of appeal.

II. No Consent Needed for Jury Trial

{¶ 14} In his first assignment of error, Hanners alleges that the trial court erred in

failing to obtain his written consent before proceeding to a jury trial before a magistrate.

However, because the record reflects that he was tried before an acting judge, there was

no requirement to obtain consent, and his argument lacks merit.

{¶ 15} Although Hanners couched his argument in terms of Civ.R. 53(C)(1)(c),

Crim.R. 19(C)(1)(h) governs criminal trials presided over by magistrates in municipal

court. In criminal cases, magistrates are authorized to “conduct the trial of any

misdemeanor case that will not be tried to a jury. If the offense charged is an offense for

which imprisonment is a possible penalty, the matter may be referred only with unanimous

consent of the parties in writing or on the record in open court.” Crim.R. 19(C)(1)(h).

{¶ 16} Meanwhile, R.C. 1901.121 addresses the appointment of an acting judge in

a municipal court. R.C. 1901.121(C) provides that when there is a vacancy in a

municipal court with three or more judges (such as the Dayton Municipal Court), “the

court's presiding judge has the option to either appoint an appropriate substitute as ‘acting

judge’ or to request that the Supreme Court of Ohio assign a sitting judge of another court

or a retired judge to temporarily serve as an ‘assigned judge.’ ” State v. Armstrong-

Carter, 2d Dist. Montgomery Nos. 28571 and 28576,

. Pursuant -7-

to that statute, if a judge of the municipal court is incapacitated, unavailable, or temporarily

absent, the presiding judge may appoint a qualified substitute if no other judge of the court

is available to perform the duties of the judge. R.C. 1901.121(C)(1). The appointee

shall be designated as “acting judge” and “shall have the jurisdiction and adjudicatory

powers conferred upon the judge of the municipal court.” R.C. 1901.121(C)(1) and (E).

{¶ 17} In this case, Magistrate Moorman was appointed by the presiding judge to

act as acting judge of the Dayton Municipal Court on October 20, 2021, October 21, 2021,

and January 5, 2022. Collectively, the dates covered both the jury trial, the sentencing

hearing, and the sentencing entry. The entries appointing Moorman as acting judge

further indicated that the appointment of an acting judge was necessary for those dates

due to the absence of Judge Henderson. Because the jury trial was conducted by

Moorman in her capacity as acting judge and not in her capacity as magistrate, there was

no need to obtain unanimous consent of the parties to have her preside over the trial.

As such, Hanners’ first assignment of error is overruled.

III. Motion for Mistrial

{¶ 18} Hanners’ second assignment of error contends that the trial court erred in

refusing to grant a mistrial following the prosecutor’s improper statement during her

closing argument. Although the prosecutor’s statement was improper, it did not

prejudicially affect Hanners’ substantial right to a fair trial due to the swift corrective

measures taken by the trial court.

{¶ 19} “The test regarding prosecutorial misconduct in closing arguments is

whether the remarks were improper and, if so, whether they prejudicially affected -8-

substantial rights of the defendant.” State v. Smith,

,

(1984), citing United States v. Dorr,

(5th Cir. 1981). “Prosecutors

are granted wide latitude in closing argument, and the effect of any conduct of the

prosecutor during closing argument must be considered in light of the entire case to

determine whether the accused was denied a fair trial.” (Citation omitted.) State v.

Powell,

,

,

, ¶ 149. “Prosecutorial

misconduct should only result in a mistrial if, after a curative instruction, the effect of the

comments would still result in a miscarriage of justice.” State v. Ward, 2d Dist.

Montgomery No. 18211,

, *4 (Mar. 2, 2001), citing State v. Gardner,

,

(5th Dist. 1998). “The touchstone * * * is the

fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips,

,

,

(1982).

{¶ 20} The grant or denial of a motion for a mistrial rests in a trial court's sound

discretion and should not be disturbed on appeal absent an abuse of that discretion.

State v. Treesh,

,

(2001). To establish an abuse

of discretion for failing to grant a mistrial, a defendant must demonstrate material

prejudice. State v. Adams,

,

,

.

“Mistrials need be declared only when the ends of justice so require and a fair trial is no

longer possible.” State v. Franklin,

,

(1991).

Reviewing courts grant “great deference to the trial court's discretion in this area, in

recognition of the fact that the trial judge is in the best position to determine whether the

situation in his courtroom warrants the declaration of a mistrial.” State v. Glover, 35 Ohio -9-

St.3d 18, 19,

(1988).

{¶ 21} Hanners’ motion for a mistrial was based on the prosecutor’s statement

during closing argument that “Miss Stanfield also told you about how Shawn Hanners

threatened to kill her.” Trial Tr. 140. Hanners immediately objected. The jury left the

courtroom, and the parties replayed the testimony of Duiene. A review of the testimony

revealed that Duiene testified that Hanners stated “I’ll f*** you all up” and did not state “I

will kill you.” Id. at 141. Hanners immediately requested a mistrial. The trial court

denied the motion for a mistrial and provided the following additional instructions upon

the jury’s return to the courtroom:

The Court: * * * To members of the jury, final arguments of counsel are an

opportunity for each side’s attorney to summarize the evidence and argue

their respective positions. They are not evidence and the side with the

burden of proof will be the state. The attorney[s] have to argue the facts

that are in evidence and the court is going to tell you we went back to play

a portion of the tape to make sure that I had heard everything correctly.

There is no testimony on the record that the defendant, Mr. Hanners, said

the words […]

[Defense attorney]: That I will kill you[.]

The Court: That I will [sic] you. The prosecutor has misstated that. That

is not in evidence and it was very improper for her to say so. I’m going to

ask you to disregard that. It is not in the evidence. It’s not in the record.

You, as the jury, decides what facts you believe and you want to find to be -10-

credible, the witnesses to be credible, and what facts you want to ugh

commenting recollection [sic] with each other believe what you heard. That

is not going to be one of them. It’s gonna be stricken from the record and

there is no allegation there that he said those words. I’m going to caution

the prosecutor to not misstate what was said and I will allow you to continue.

Id. at 142-143. Thereafter, the prosecutor apologized and continued with closing

arguments.

{¶ 22} After reviewing the record, we conclude that the prosecutor improperly

attributed the statement to Hanners, which was prejudicial. Although Duiene Stanfield

did not testify that Hanners made the statement, she did testify that Hanners’ co-

defendant, Musselman, made the statement multiple times. Christopher also testified

that he heard Musselman threaten to kill Duiene. Thus, the statement was in evidence

but, unfortunately, the prosecutor attributed it to the wrong defendant.

{¶ 23} Even though we find the statement by the prosecutor to have been improper

and prejudicial, we must still determine whether the remark was so prejudicial as to deny

Hanners a fair trial. We are unpersuaded that the prosecutor’s misstatement so infected

Hanners’ trial with unfairness that his conviction violated his due process rights. Notably,

the court's instructions immediately following the prosecutor's misstatement mitigated any

harm caused by it. “Curative instructions are generally viewed as sufficient to remedy

the risk of undue prejudice.” State v. Gray, 2d Dist. Darke No. 2019-CA-7, 2020-Ohio-

1402, ¶ 48. The jury was informed prior to closing arguments and again in the jury

instructions that the arguments of counsel were not to be considered as evidence. “It is -11-

presumed that the jury obeys the instructions of the trial court.” State v. Hancock,

,

,

. While not all misconduct can be

cured by an instruction, in this case, not only did the trial court instruct the jury to disregard

the statement, but it also corrected the statement, ordered that the misstatement be

stricken from the record, and admonished the prosecutor in front of the jury immediately

following the misconduct. The significant steps taken in this case by the trial court

minimized any prejudice caused by the prosecutor’s isolated misstatement. Therefore,

the trial court did not abuse its discretion in overruling Hanners’ request for a mistrial.

His second assignment of error is overruled.

IV. Jury Instructions

{¶ 24} In his final assignment of error, Hanners claims that the trial court erred

when it refused to instruct the jury on the lesser included offense of disorderly conduct.

Although Hanners requested the instruction, the trial court found that the evidence did not

warrant giving it. We agree with the trial court.

{¶ 25} Both Crim.R. 31(C) and R.C. 2945.74 provide that a jury may find a

defendant not guilty of the offense charged but guilty of a lesser included offense.

Deciding whether a lesser included offense jury instruction is warranted involves a two-

step analysis. State v. Deanda,

,

,

. The first step is a purely legal question wherein the court must determine whether

one offense constitutes a lesser included offense of the charged offense.

citing State

v. Kidder,

,

(1987). The second step requires the

court to considers the evidence presented in the particular case and determine whether -12-

“a jury could reasonably find the defendant not guilty of the charged offense, but could

convict the defendant of the lesser included offense.” Id. at ¶ 6, quoting State v. Evans,

,

,

. Thus, “[e]ven though an

offense may be statutorily defined as a lesser included offense of another, a charge on

such lesser included offense is required only where the evidence presented at trial would

reasonably support both an acquittal on the crime charged and a conviction upon the

lesser included offense.” State v. Thomas,

,

(1988),

paragraph two of the syllabus. When making that determination, “the trial court must

view the evidence in the light most favorable to the defendant.” State v. Monroe,

,

,

, ¶ 37.

{¶ 26} “A trial court has broad discretion to decide how to fashion jury instructions,

but it must ‘fully and completely give the jury all instructions which are relevant and

necessary for the jury to weigh the evidence and discharge its duty as the fact finder.’ ”

State v. White,

,

,

, quoting State

v. Comen,

,

(1990), paragraph two of the syllabus. “A

defendant is only entitled to have his proposed jury instructions given when they are

correct statements of the law, pertinent to the evidence in the record or to material issues,

and are timely presented and not already included in the substance of the jury charge.”

State v. Elliott, 2d Dist. Montgomery No. 26104,

, citing State v.

Guster,

,

(1981). “When reviewing the trial court's

jury instructions, the proper standard of review is whether the trial court's decision to give

or exclude a particular jury instruction was an abuse of discretion under the facts and -13-

circumstances of the case.” (Citation omitted.) State v. Fair, 2d Dist. Montgomery No.

24388,

. An “abuse of discretion” has been defined as an attitude

that is unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeon, Inc.,

,

(1985).

{¶ 27} In this case, Hanners was charged and convicted of menacing, in violation

of R.C. 2903.22(A), a misdemeanor of the fourth degree.2 That statute provides that

“[n]o person shall knowingly cause another to believe that the offender will cause physical

harm to the person or property of the other person, * * * or a member of the other person's

immediate family.” R.C. 2903.22(A).

{¶ 28} Hanners requested a jury instruction for disorderly conduct, in violation of

R.C. 2917.11(A)(1), a minor misdemeanor. R.C. 2917.11(A)(1) provides that “[n]o

person shall recklessly cause inconvenience, annoyance, or alarm to another by * * *

[e]ngaging in fighting, in threatening harm to persons or property, or in violent or turbulent

behavior.” We first consider whether disorderly conduct under R.C. 2917.11(A)(1)

constitutes a lesser included offense of menacing.

{¶ 29} The Ohio Supreme Court has articulated a three-pronged test to determine

whether a criminal offense is a lesser included offense of another. “An offense may be

a lesser included offense of another if (i) the offense carries a lesser penalty than the

other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the

lesser offense, as statutorily defined, also being committed; and (iii) some element of the

2 We acknowledge that Hanners was also charged with aggravated menacing, but considering he was found not guilty of that charge, we find the argument moot as to that offense. -14-

greater offense is not required to prove the commission of the lesser offense.” State v.

Deem,

,

(1988), paragraph three of the syllabus.

Using this analysis, we find that disorderly conduct, as specified in R.C. 2917.11(A)(1), is

a lesser included offense to menacing.

{¶ 30} First, disorderly conduct is a minor misdemeanor, which carries a lesser

penalty than menacing, a fourth-degree misdemeanor. See, generally, R.C. 2929.27

and R.C. 2929.28. Second, menacing contains the element of threatening physical

harm, which cannot be committed without at the same time causing annoyance or alarm

to the victim. See State v. Shumaker, 2d Dist. Darke No. 1332,

, *7 (Feb.

18, 1994) (finding that threatening serious physical harm under an aggravated menacing

charge cannot be committed without at the same time causing annoyance or alarm to the

victim by threatening harm). Third, “the greater mental state of knowingly is required for

menacing, but not for disorderly conduct and for menacing, the offender must cause

another to believe that the offender will cause physical harm, while disorderly conduct

requires only that inconvenience, annoyance or alarm be caused.” State v. Ozias, 12th

Dist. Butler No. CA2003-04-102,

.

{¶ 31} Nonetheless, a trial court is not always required to instruct the jury on a

lesser included offense even if the elements of the offense would be met. Rather, it is

only required when “the evidence presented at trial would reasonably support an acquittal

on the crime charged and a conviction on the lesser included offense.” State v. Allen,

,

(1995). Thus, we must consider whether the

jury could have reasonably acquitted Hanners of menacing but convicted him of disorderly -15-

conduct.

{¶ 32} We conclude that the evidence presented at trial cannot reasonably support

a conviction for disorderly conduct under R.C. 2917.11(A)(1) and an acquittal on

menacing. A conviction for disorderly conduct and an acquittal for menacing would have

required the jury to find that Hanners recklessly caused inconvenience, annoyance, or

alarm to Duiene by engaging in fighting, in threatening harm to Duiene or her property, or

acting in a violent or turbulent behavior, but that Hanners did not knowingly cause Duiene

to believe that Hanners would cause her physical harm. The culpable mental states for

“knowingly” and “recklessly” are defined in R.C. 2901.22(B) and (C), respectively, as

follows:

(B) A person acts knowingly, regardless of purpose, when the person is

aware that the person's conduct will probably cause a certain result or will

probably be of a certain nature. A person has knowledge of circumstances

when the person is aware that such circumstances probably exist. When

knowledge of the existence of a particular fact is an element of an offense,

such knowledge is established if a person subjectively believes that there is

a high probability of its existence and fails to make inquiry or acts with a

conscious purpose to avoid learning the fact.

(C) A person acts recklessly when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable risk

that the person's conduct is likely to cause a certain result or is likely to be

of a certain nature. A person is reckless with respect to circumstances -16-

when, with heedless indifference to the consequences, the person

disregards a substantial and unjustifiable risk that such circumstances are

likely to exist.

{¶ 33} As it relates to Hanners’ conduct and statements, the jury was only

presented with one version of events – that testified to by the Stanfields. Considering

the conduct and statements of Hanners during the entirety of the incident, the evidence

presented demonstrated that Hanners acted knowingly, not recklessly. Thus, if the jury

believed the Stanfields, Hanners was guilty of menacing.

{¶ 34} The incident occurred around 4:30 p.m. in broad daylight. Duiene testified

she was approximately 20 feet away from Hanners during the incident and was located

near her husband and the juveniles in the gas station parking lot. Hanners was observed

by both the Stanfields throwing chairs and lighter fluid, as well as a brick/rock that struck

one of the teenagers in the chest and resulted in an injury. Additionally, Hanners

released a large pit bull and told the dog to “get the kids.” The 911 call was consistent

with Duiene’s testimony that chairs, lighter fluid, and bricks were being thrown and that

the dog was sent out to get the kids. Duiene testified she was scared for herself and

concerned for her husband’s safety as well. Significantly, while police were on the

scene, Hanners threw a chair and screamed “I don’t give a f***. I’ll f*** all of you up.”

Trial Tr. 59. This conduct occurred after having already injured one of the juveniles by

throwing other objects and telling police he did not need their help. Duiene stated that

the threats from Hanners scared her and she was afraid that he was going to charge

toward her and hit her. Id. at 60. -17-

{¶ 35} Based on the facts in evidence in this case, a reasonable jury would not

have acquitted Hanners of the menacing charge but convicted him of disorderly conduct.

Accordingly, we conclude that the trial court did not abuse its discretion by refusing to

give an instruction on disorderly conduct. We overrule Hanners’ third assignment of

error.

V. Conclusion

{¶ 36} Having overruled all of Hanners’ assignments of error, the judgment of the

trial court is affirmed.

.............

TUCKER, P.J. and EPLEY, J., concur.

Copies sent to:

Stephanie L. Cook Alissa Schriner V. Gayle Miller Hon. Colette Moorman, Acting Judge