State v. Hathorn
| Docket Number | 5-22-17 |
| Decision Date | 30 October 2023 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE, v. ROBERT T. HATHORN, DEFENDANT-APPELLANT. |
| Court | Ohio Court of Appeals |
Jesse E. Scott for Appellant
Phillip A. Riegle for Appellee
{¶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.
{¶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.
{¶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 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.
{¶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 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 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]
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.
The trial court erred when it failed to merge counts one and two of the indictment because they are allied offenses.
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
The State failed to present sufficient evidence to sustain a conviction.
The trial court erred by sentencing [Hathorn] to an indefinite sentence pursuant to the Reagan Tokes Act.
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.
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.
The State engaged in prosecutorial misconduct in closing arguments resulting in unfair prejudice against [Hathorn].
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.
{¶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....
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