[Cite as State v. Hakes, 2014-Ohio-4950.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. John W. Wise, J.
-vs-                                         :
                                             :
CASEY P. HAKES                               :       Case No. 14-CA-2
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 13 CR 223




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    November 5, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

GREGG MARX                                           DAVID A. SAMS
239 West Main Street                                 P.O. Box 40
Suite 101                                            West Jefferson, OH 43162
Lancaster, OH 43130
Fairfield County, Case No. 14-CA-2                                                      2

Farmer, J.

       {¶1}   On April 19, 2013, the Fairfield County Grand Jury indicted appellant,

Casey Hakes, on one count of improperly handling firearms in a motor vehicle in

violation of R.C. 2923.16. Fairfield County Sheriff's Deputy Don Abram discovered a

firearm in a pocket on the back of the front passenger's seat of appellant's vehicle after

stopping him for erratic driving.

       {¶2}   A jury trial commenced on November 5, 2013. The jury found appellant

guilty as charged. By judgment entry filed December 19, 2013, the trial court sentenced

appellant to fourteen months in prison, suspended in lieu of thirty months of community

control.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶4}   "THE DEFENDANT-APPELLANT WAS DENIED THE RIGHT TO

CONFRONT AND DEFEND UNDER OHIO LAW AND THE STATE AND FEDERAL

CONSTITUTIONS."

                                            II

       {¶5}   "THE DEFENDANT-APPELLANT WAS DENIED A FAIR TRIAL BY

PROSECUTORIAL MISCONDUCT CONTRARY TO THE STATE AND FEDERAL

CONSTITUTIONS."

                                           I, II

       {¶6}   Appellant's two assignments will be addressed together because they

center upon the unavailability of a witness, appellant's brother, Tyler Hakes, who
Fairfield County, Case No. 14-CA-2                                                        3


invoked his Fifth Amendment privilege against self-incrimination. Appellant claims as a

result, he was denied the right to confront witnesses on his own behalf thereby suffering

prejudice and violating his right to a fair trial. In addition, appellant claims his brother

pled the Fifth after the state threatened to prosecute him.

       {¶7}     The gravamen of this appeal is a conflict between Tyler Hakes's right to

invoke his Fifth Amendment privilege and appellant's right to confront his accusers and

present witnesses on his own behalf.

       {¶8}     Appellant was charged with violating R.C. 2923.16(B) which states: "No

person shall knowingly transport or have a loaded firearm in a motor vehicle in such a

manner that the firearm is accessible to the operator or any passenger without leaving

the vehicle."

       {¶9}     During opening statement, defense counsel argued appellant did not have

any knowledge that the firearm was in the vehicle, and appellant's brother would testify

that he had placed the firearm in the vehicle unbeknownst to appellant.           T. at 66.

Before these statements were made, the trial court, in chambers, had asked the state

about any possible prosecution of Tyler Hakes (T. at 40):



                THE COURT: Okay. Thank you. One more thing I wanted to ask

       though. I had the Magistrate ask I think one or both of your (sic) this

       morning, it was off the record right before we started when I learned that

       Tyler Hakes may be a witness, I didn't know if he was charged with

       anything out of this or anything.

                MS. BENNETT: Not yet, Your Honor.
Fairfield County, Case No. 14-CA-2                                                     4


             THE COURT: And because if he was, then we would need to have

      - - potentially have an attorney here to represent him and so forth.

             MS. BENNETT: I think that's a possibility.



      {¶10} The prosecutor was concerned with Tyler Hakes's role in providing

appellant with "a loaded weapon in the motor vehicle" as she did not "know what all of

his testimony is going to be because we just found out about him last Thursday." T. at

41.

      {¶11} The state presented the testimony of Deputy Abram who testified upon

stopping appellant for erratic driving, he observed a firearm sticking out of a pocket

behind the front passenger's seat.     T. at 74.   The firearm was loaded.     T. at 77.

Appellant did not have a conceal carry permit. T. at 72. Appellant told Deputy Abram

he had purchased the firearm from his brother two years prior for his protection. T. at

78. The state admitted State's Exhibit 1, the ATF Report establishing that Tyler Hakes

was the original purchaser of the firearm. T. at 80.

      {¶12} After the state rested its case-in-chief, the issue of Tyler Hakes's

testimony was again discussed. The trial court provided Tyler Hakes with counsel and

asked him specific questions. T. at 113-117. The trial court then provided time for Tyler

Hakes to consult with his counsel, after which the trial court was notified that Tyler

Hakes would invoke his Fifth Amendment privilege. T. at 117-118. Thereafter, Tyler

Hakes was sworn in as a witness, and to all questions other than introductory, pled the

Fifth. T. at 126-128. No proffer was made as to what the answers to the questions
Fairfield County, Case No. 14-CA-2                                                           5


would have been. The only reference was in defense counsel's opening statements

noted above.

       {¶13} Appellant argues the trial court's inquiries and efforts were insufficient.

Appellant argues the trial court should have inquired as to why Tyler Hakes was

invoking his Fifth Amendment privilege as such an inquiry would have proved his fears

were groundless. We disagree with this position.

       {¶14} The trial court provided independent counsel for Tyler Hakes, gave extra

time for the two to consult, and told Tyler Hakes not to reveal his discussions with

counsel on the record. In addition, defense counsel did not object to the procedure

employed. An error not raised in the trial court must be plain error for an appellate court

to reverse. State v. Long, 53 Ohio St.2d 91 (1978); Crim.R. 52(B). In order to prevail

under a plain error analysis, appellant bears the burden of demonstrating that the

outcome of the trial clearly would have been different but for the error. Long. Notice of

plain error "is to be taken with the utmost caution, under exceptional circumstances and

only to prevent a manifest miscarriage of justice." Id. at paragraph three of the syllabus.

Given the testimony of Deputy Abram noted above, we do not find plain error.

       {¶15} Appellant also argues the state prejudiced his rights to a fair trial by

threatening Tyler Hakes with prosecution. The only indication of this was the state's

position relative to the trial court's inquiry in chambers prior to opening statements of

possible prosecution as cited above.      The prosecutor never spoke directly to Tyler

Hakes regarding potential prosecution. We find no prosecutorial misconduct in merely

stating the truth and in fact initiating the need for independent counsel for Tyler Hakes.

       {¶16} Assignments of Error I and II are denied.
Fairfield County, Case No. 14-CA-2                                              6


      {¶17} The judgment of the Court of Common Pleas of Fairfield County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.




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