State v. Hawthorne , 2020 Ohio 756 ( 2020 )

[Cite as State v. Hawthorne, 2020-Ohio-756.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2019CA00055
CLASSIE NICOLE HAWTHORNE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2018CR00950
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 2, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO LAURA L. MILLS
PROSECUTING ATTORNEY PIERCE C. WALKER
RONALD MARK CALDWELL MILLS, MILLS, FIELY & LUCAS, LLC
ASSISTANT PROSECUTOR 101 Central Plaza South
110 Central Plaza South, Suite 510 Suite1200
Canton, Ohio 44702-1413 Canton, Ohio 44702
Wise, J.
{¶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.
{¶2} On May 21, 2018, appellant fatally shot her estranged husband, Cleveland
Hawthorne. She then left the scene of the shooting in southwest Canton and hid the
weapon, a handgun, in some hedges near Aultman Hospital. However, she later returned
to the scene.
{¶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
and then got back inside. The two then went together in the Equinox back to Concord
Street, pulling into a gravel parking lot on the property of the church next to Cleveland's
house.
{¶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,
Tammy at least noticed car keys lying next to Cleveland. These were later determined to
belong to appellant’s Equinox.
{¶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 (R.C. 2903.02(B))
with a firearm specification (R.C. 2941.145), felonious assault (R.C. 2903.11(A)(2)) with
a firearm specification (R.C. 2941.145), and improperly handling firearms in a motor
vehicle (R.C. 2923.16(B)).
{¶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
inferior degree offense of the charged offense of felony murder (R.C. 2903.02(B)). The
State responded in writing on February 22, 2019. Via a judgment entry issued on March
19, 2019, the trial court overruled appellant’s motion for a new trial. Appellant then filed a
motion for reconsideration of that ruling; however, the court overruled same on April 10,
2019.
{¶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.
{¶21} In her First Assignment of Error, appellant contends the trial court erred by
(1) instructing the jury on the inferior degree offense of voluntary manslaughter as
requested by the State and (2) subsequently overruling appellant's motion for a new trial
pursuant to Crim.R. 33. We agree on the first point.
{¶22} Section 10, Article I of the Ohio Constitution states: “No person shall be held
to answer for a capital, or otherwise infamous crime, unless on presentment or indictment
of a grand jury.” This constitutional provision guarantees the accused that the essential
facts constituting the offense for which he is tried will be found in the indictment of the
grand jury. State v. Thompson, 8th Dist. Cuyahoga No. 85843, 2006-Ohio-3162, ¶ 14.
{¶23} The Ohio Supreme Court has explained that, under Crim.R. 31(C) and R.C.
2945.74, a jury may consider lesser unindicted offenses only if the evidence supports the
lesser charge and the lesser charge falls into one of three groups. State v. Deem, 40 Ohio
St.3d 205, 208 (1988). A jury may consider lesser unindicted crimes that are (1) a lesser-
included offense of the crime charged, (2) an inferior degree of the crime charged, or (3)
an attempt to commit the crime charged, if such an attempt is an offense at law. State v.
Davis, 9th Dist. Summit No. 25826, 2012-Ohio-1440, ¶ 20, citing Deem, infra.
{¶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
manslaughter is a lesser-included offense of felony murder.1 Instead, we are tasked with
determining whether voluntary manslaughter is an inferior degree offense of felony
murder. An offense is an “inferior degree” of the indicted offense where its elements are
identical to or contained within the indicted offense, except for one or more additional
“mitigating elements” which will generally be presented in the defendant's case. See State
v. Booker, 6th Dist. Lucas No. L-10-1140, 2013-Ohio-45, ¶ 20; State v. Pennington, 5th
Dist. Guernsey No. 16CA14, 2017-Ohio-1423, ¶ 17.
{¶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. R.C.
2903.02(B) states as follows: “No person shall cause the death of another as a proximate
result of the offender's committing or attempting to commit an offense of violence that is
a felony of the first or second degree and that is not a violation of section 2903.03 or
2903.04 of the Revised Code.”
{¶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. R.C. 2903.03(A) states as follows: “No
person, while under the influence of sudden passion or in a sudden fit of rage, either of
which is brought on by serious provocation occasioned by the victim that is reasonably
1 Our research indicates a number of Ohio appellate courts, in cases of felony murder
under R.C. 2903.02(B), have cited or applied the general rule that voluntary manslaughter
is not a lesser-included offense of murder. See, e.g., State v. Shoecraft, 2nd Dist.
Montgomery No. 27860, 2018-Ohio-3920, ¶ 45; State v. Cobb, 5th Dist. Stark No.
2014CA00226, 2015-Ohio-2752, ¶ 12; State v. Gray, 12th Dist. Butler No. CA2010-03-
064, 2011-Ohio-666, ¶ 33; State v. Sandoval, 9th Dist. Lorain No. 07CA009276, 2008-
Ohio-4402, ¶ 10; State v. Amison, 8th Dist. Cuyahoga No. 86279, 2006-Ohio-560, ¶ 13.
sufficient to incite the person into using deadly force, shall knowingly cause the death of
another or the unlawful termination of another's pregnancy.”
{¶27} Several observations are noteworthy in our present analysis. First, felony
murder under R.C. 2903.02(B) omits the mens rea of “purposely” required for murder
under R.C. 2903.02(A) (which appellant was not charged with in this case). See State v.
Franklin, 10th Dist. Franklin No. 06AP-1154, 2008-Ohio-462, ¶ 24. The voluntary
manslaughter mens rea requires that a defendant “knowingly” cause the death of another,
but voluntary manslaughter also does not require the “purposeful” intent of murder under
R.C. 2903.02(A). See State v. Whatley, 10th Dist. Franklin No. 95APA10-1375, 1996 WL
257462. Under Ohio criminal law, “[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. ***.” See R.C. 2901.22(B).
{¶28} Thus, in contrast to voluntary manslaughter, “[f]elony murder under R.C.
2903.02(B) is a strict-liability offense in the sense that if the offender acts with the culpable
mental state of the underlying first or second degree felony of violence, proximately
resulting in death, then he is also guilty of felony murder.” State v. Hypes, 2nd Dist. Clark
No. 2018-CA-110, 2019-Ohio-4096, f.n. 1. Otherwise, there is no independent mens rea
component contained in the felony murder statute. State v. Collins, 7th Dist. Mahoning
No. 16 MA 0045, 2017-Ohio-648, ¶ 8. As the Ohio Supreme Court has aptly summarized,
in a felony murder prosecution, although intent to commit the predicate felony is required,
intent to kill is not. See State v. Nolan, 141 Ohio St. 3d 454, 2014-Ohio-4800, 25 N.E.3d
1016, ¶ 9.
{¶29} Accordingly, while the Ohio Supreme Court has clearly established that
voluntary manslaughter is an inferior degree offense of purposeful murder (see State v.
Shane (1992), 63 Ohio St. 3d 630, 632, 590 N.E.2d 272), it has been recognized that
“[v]oluntary manslaughter is not an inferior-degree offense to felony murder via felonious
assault because its elements, except for the mitigating factor of rage provoked by the
victim, are neither contained within nor identical to the elements of felony murder via
felonious assault.” State v. Davis, 9th Dist. Summit No. 25826, 2012-Ohio-1440, ¶ 23
(emphasis added).
{¶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
(R.C. 2903.01), albeit with a felony-murder capital offense specification (R.C.
2929.04(A)(7)), Deem focused on a charge of felonious assault (R.C. 2903.11) with no
fatality, and Rhodes addressed a general count of murder, under the more succinct
version of R.C. 2903.02 as it existed in 1989. Moreover, based on the dates of these
decisions, the State’s reliance thereon is unpersuasive, as felony murder was not a crime
in Ohio until 1998, when division (B) was added to R.C. 2903.02. See State ex rel.
Williams v. Sutula, 147 Ohio St. 3d 472, 2016-Ohio-7453, 67 N.E.3d 763, ¶ 4, citing
Sub.H.B. No. 5.
{¶31} The State also references a number of more recent appellate decisions for
its insistence that voluntary manslaughter is an inferior degree offense of felony murder.
See State v. Sekulic, 5th Dist. Stark No. 2016CA00135, 2017-Ohio-4259, 92 N.E.3d 234;
State v. Burkes, 8th Dist. Cuyahoga No. 106412, 2018-Ohio-4854; State v. Hunter, 9th
Dist. Summit No. 28484, 2018-Ohio-568, 107 N.E.3d 647; State v. Terrion, 9th Dist.
Summit No. 25368, 2011-Ohio-3800; State v. Ortiz, 5th Dist. Stark No. 2015CA00098,
2016-Ohio-354; and State v. Linzy, 5th Dist. Richland No. 2012 CA 33, 2013-Ohio-1129.
{¶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 (R.C. 2903.01) and/or purposeful murder (R.C. 2903.02(A)). Of the
remaining three, Burkes involved a count of aggravated murder and a count of felony
murder, but the Eighth District’s analysis focused on the jury instruction for voluntary
manslaughter in the context of the aggravated murder count. In Terrion, the defendant
had been indicted on both purposeful murder (R.C. 2903.02(A)) and felony murder (R.C.
2903.02(B)). The defendant was ultimately sentenced for 15 years to life on the murder
count (R.C. 2903.02(A)), and the felony murder count was merged. Terrion at ¶ 8. The
voluntary manslaughter jury instruction issue was analyzed in that context. Finally, in
Linzy, a Fifth District case, the defendant, charged with both purposeful murder and felony
murder, had requested a jury instruction on voluntarily manslaughter, which the trial court
did not give. We concluded the trial court had not erred in refusing to give the instruction,
as we found that the evidence presented did not reasonably support both an acquittal on
the “crime charged” (purposeful murder) and a conviction for voluntary manslaughter.
Linzy at ¶ 86. In sum, the elements of felony murder were not analyzed in any significant
manner in either Burkes, Terrion, or Linzy.
{¶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 R.C. 2903.02(B).
{¶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 App.R. 12(A).
2 It is thus not necessary for this Court to address appellant’s arguments in this assigned
error regarding her motion for new trial.
{¶36} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Stark County, Ohio, is hereby reversed and remanded for a new trial.3
By: Wise, J.
Delaney, J., concurs.
Hoffman, P. J., concurs in part and dissents in part.
JWW/d 0113
3 An improper jury instruction normally requires that the matter be reversed and
remanded for a new trial. See State v. Warner, 11th Dist. Portage No. 2008-P-0052, 2010-
Ohio-4940, ¶ 69. See, also, State v. Griffin, 1st Dist. Hamilton No. C-070324, 175 Ohio
App.3d 325, 2008-Ohio-702, 886 N.E.2d 921, ¶ 2; State v. Baugus, 3rd Dist. Union No.
14-85-22, 1986 WL 15046. In addition, Crim.R. 33(D) states as follows: “When a new trial
is granted by the trial court, or when a new trial is awarded on appeal, the accused shall
stand trial upon the charge or charges of which he was convicted.”
Hoffman, P.J., concurring in part and dissenting in part
{¶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, R.C. 2903.02(B)), the error is giving an instruction on the charge in the first
instance, not an internal error is the instruction itself.
{¶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.