[Cite as State v. Hawthorne, 2018-Ohio-1180.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105121




                                     STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                          MICHAEL G. HAWTHORNE

                                                      DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-16-603041-A

        BEFORE:          Jones, J., Keough, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: March 29, 2018
ATTORNEY FOR APPELLANT

Susan J. Moran
55 Public Square, Suite 1616
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Andrea N. Isabella
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} Defendant-appellant, Michael Hawthorne (“Hawthorne”), appeals his

convictions on two counts of felonious assault with firearm specifications. For the

reasons that follow, we reverse and remand.

       {¶2} In 2016, Hawthorne was charged with attempted murder and felonious assault

with one- and three-year firearm specifications and with an additional count of felonious

assault.   He was charged in a separate case with having weapons while under disability.

The trial court consolidated the two cases for trial over the objection of defense counsel.

The following pertinent facts were presented at the jury trial.

       {¶3} Brittany Austin (“Austin”) and Hawthorne dated on and off through high

school until 2015 and had three children together.           Austin started dating James

Cooperwood (“Cooperwood”) in November 2015.

       {¶4} On January 10, 2016, Hawthorne dropped the children off at their mother’s

house after spending some time with them. Soon thereafter, Austin called Hawthorne to

inquire about Cooperwood’s duffel bag, which contained CDs and DVDs Cooperwood

sold for cash.   The couple alleged that Hawthorne stole it.      After Austin’s attempts to

get Hawthorne to come over failed, Cooperwood called Hawthorne, and Hawthorne

agreed to come over.

       {¶5} Cooperwood went downstairs to meet Hawthorne. On his way, he grabbed a

bat and told Austin he was “about to bust the b[***] head open.” Moments later, Austin

heard gunshots and went downstairs to find Cooperwood bleeding on the front porch.
She did not see who shot Cooperwood.

      {¶6} Cooperwood sustained a gunshot injury to both legs and a shattered femur.

He initially identified Hawthorne as the shooter, but during trial, Cooperwood testified

that he had never met Hawthorne and did not remember telling police that Hawthorne had

shot him. After further questioning, however, Cooperwood testified that Hawthorne

shot him. According to Cooperwood, he argued with Hawthorne on the phone about the

duffel bag and told Hawthorne “to come back over and return my things, or it was going

to be a problem. He actually came back, but he came back empty handed.             When I

approached him, he shot me.         That’s it.     That’s what happened.”     Cooperwood

admitted he had a bat, but denied threatening Hawthorne with the bat, testifying that the

bat was   “laying up against the rail.”

      {¶7} After the state presented its evidence, the court asked defense counsel if

anyone would be testifying for the defense.      Counsel indicated that he had subpoenaed a

witness who had shown up to court on previous occasions but did not appear pursuant to

the current subpoena. According to defense counsel, this witness would support the

claim that Hawthorne was attacked by Cooperwood.          The court stated it would issue a

material witness warrant for the witness, but, before the warrant was issued, the court

informed counsel that the defense of self-defense applied only in cases where the

defendant him or herself took the stand.           The court told defense counsel that it

would give “as much time as you want to try to secure this person, but that person isn’t

the person who can testify and give you the self-defense argument. So if you’re going to
argue self-defense to this jury * * * then the only way that comes in is if Mr. Hawthorne

testifies.”

          {¶8} Hawthorne chose not to testify in his own defense, and the court did not

instruct the jury on self-defense.

          {¶9} The jury convicted Hawthorne of one count of felonious assault and one

count of felonious assault with one- and three-year firearm specifications and acquitted

him of the remaining charges.        The trial court sentenced him to a total of five years in

prison.

          {¶10} Hawthorne filed a notice of appeal and has raised the following assignments

of error for our review:

          I. The trial court denied the appellant due process and his right under
          Crim.R. 30(A) when the trial court failed to instruct the jury on self-defense
          and aggravated assault.

          II. The appellant was denied effective assistance of counsel in violation of
          Amendments VI and XIV, United States Constitution and Article I, Section
          10, Ohio Constitution.

          III. Appellant was denied due process and a fair and impartial trial as
          guaranteed by the 5th, 6th, and 14th Amendments of the U.S. Constitution
          and Article I, Section 16 of the Ohio Constitution based on prosecutorial
          misconduct.

          IV. The trial court erred by prejudicially joining two cases which
          effectively violated appellant’s due process and right to a fair trial.
          {¶11} After oral arguments were heard in this case, we issued the following order:

 “Sua sponte the parties are ordered to brief the issue of whether the trial court erred to

the prejudice of Hawthorne when it informed him that he had to testify in order to

advance a claim of self-defense.”
       {¶12} The parties complied with our order and submitted supplemental briefs.

The above sua sponte order will be addressed with the first assignment of error, which is

dispositive of this appeal.

       {¶13} The Fifth and Fourteenth Amendments to the Constitution guarantee every

criminal defendant the right to remain silent. Although a criminal defendant has a Fifth

Amendment right not to testify, self-defense is an affirmative defense that requires the

defendant to prove all the elements.            See R.C. 2901.05(A) (“The burden of going

forward with the evidence of an affirmative defense, and the burden of proof, by a

preponderance of the evidence, for an affirmative defense, is upon the accused.”)1

       {¶14} The United State Supreme Court has held that Ohio’s self-defense statute

does not violate due process by placing the burden of proof on the defendant.              Martin v.

Ohio, 480 U.S. 228, 230, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987). But because the

burden of proving a claim of self-defense is on the defendant, it may be necessary for a

defendant to testify in order to establish that defense. State v. Seliskar, 35 Ohio St.2d

95, 96, 298 N.E.2d 582 (1973), citing State v. Champion, 109 Ohio St. 281, 142 N.E. 141

(1924).    By the very nature of a claim of self-defense, “no one is in a better position than

the defendant to provide evidence to aid the jury in determining whether the defendant’s

acts were justified.” Id. citing id. If a defendant cannot provide evidence on the issue of

       1
         Self-defense will justify the use of force where the defendant can establish, by a
preponderance of the evidence, that he or she was not the instigator of the altercation, acted under a
reasonable belief that force was necessary to repel the imminent use of force by another, and did not
violate any duty to retreat or avoid the danger. State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d
1240 (2002).
self-defense other than his or her own testimony, then, in order to avail him or herself of

the defense, he or she must testify. “In such event, the choice is that of the defendant,

and, once he [or she] has decided to rely on self-defense and is required by the

circumstances to testify in order to prove that defense, he [or she] necessarily must waive

his [or her] constitutional right to remain silent.” Seliskar at id.

       {¶15} Thus, a defendant who does not testify is not precluded from requesting an

instruction on self-defense if the evidence otherwise supports the defense. State v.

Eichelbrenner, 1st Dist. Hamilton No. C-110431, 2013-Ohio-1194, ¶ 24.                     In

Eichelbrenner, the trial court denied the defendant’s request for a self-defense instruction

on the ground that he did not testify. The First District found that the trial court erred in

that determination but that the error would be harmless unless the evidence otherwise

supported an instruction on self-defense.      The court reviewed the record and determined

that it did not contain sufficient evidence to support a self-defense instruction, and

therefore, although the trial court erred, the error was harmless pursuant to Crim.R. 52(A)

because the instruction was not warranted. Id. at ¶ 30.

       {¶16} This case is distinguishable from Eichelbrenner.          Here, the trial court

expressly told Hawthorne that in order to establish his defense, he had to testify.

Hawthorne had a witness subpoenaed that he said would support his claim of

self-defense.   But the court told Hawthorne specifically that no one other than him could

come into court and establish his state of mind at the time of the shooting.

       {¶17} During trial, after the state rested its case, the trial court inquired whether
defense counsel would be calling any witnesses:

      Court: * * * [Y]ou claim self-defense. Are you going to be calling any
      witnesses?

      Defense: If the witness shows up. We subpoenaed the witness.

       ***

      Court: You claim self-defense for this jury. Is your Defendant going to
      testify?

      Defense: No. She [the witness] would support the self-defense. She was

      the one witness who said there is somebody in the car. And she supports a

      claim that -- that Mr. Hawthorne was attacked by James Cooperwood.

      Court: [Prosecutor], would you like to respond? Well, * * * [defense
      counsel] made an opening statement to this Jury and argued self-defense. Is
      self-defense a valid defense when someone else comes in and testifies and
      not the Defendant?

Tr. 804-805.

      {¶18} During a short break in trial, defense counsel prepared a
            material witness warrant for the court to sign. Prior to
            issuing the warrant, the court stated:

      Court: Self-defense applies only when the Defendant takes the stand. It is
      not a Defense based on what someone else believed the Defendant believed
      he was in fear for his life. It is what the Defendant believed he was in fear
      for his life. He admits — it’s an admission and a defense. I admit I
      committed the crime, but I believe I was in fear of my life. That is
      self-defense. So no witness can come in here and testify as to what Mr.
      Hawthorne believed he was in fear for his life or not. So I don’t care — I
      mean, I’ll give you as much time as you want to try to secure this person,
      but that person isn’t the person who can testify and give you the
      self-defense argument.

      So if you’re going to argue self-defense to this Jury, and if you’re going to
       argue self-defense, then the only way that comes in is if Mr. Hawthorne

       testifies. Now, he doesn’t have to testify, but if he wants to testify, he can

       testify, and then you can argue self-defense. I’m going to put that on the

       record at this time.

       Prosecutor: Do you want to question the Defendant if that’s his decision?

       Court: I should. Mr. Hawthorne, do you understand what I’m saying?

       Hawthorne:     Yes, I do.

       Court: If you want to testify, and you believe that this is self-defense,
       you’re the individual that has to testify —

       Hawthorne:     I understand.

       Court: — as to that. I’ll let you consult with your lawyers about that, and
       as soon as you come back with consulting, let me know, and we’ll move
       forward here.

T. 825-826. (Emphasis added.)

       {¶19} After the lunch recess, the trial court inquired whether the defense had any

witnesses and defense counsel stated that they were unable to produce their witness.

The court asked Hawthorne whether he was going to testify and he answered, “No.”

The court responded: “Okay. You don’t wish to testify, and that’s your choice. I’m not

trying to force you one way or the other, but I just want to make sure it’s your decision,

okay?”

       {¶20} Again, in Seliskar, 35 Ohio St.2d at 96, 298 N.E.2d 582, the Ohio Supreme

Court foresaw a situation where a defendant may have to testify in order to prove

self-defense.   But the Seliskar court did not make testifying a requirement; on the
contrary, the court stated that the “choice is that of the defendant” and that in proving, by

a preponderance of the evidence, that he or she acted in self-defense, the defendant can

offer his or her own testimony if necessary. In this case, Hawthorne was not given that

choice.   This was not a situation where the trial court told the defendant that there was

insufficient evidence to support his claim of self-defense and, therefore, Hawthorne

needed to testify in order to establish his defense. Here, the trial court told Hawthorne

that it was his “choice” whether to testify but Hawthorne was required to testify in his

own defense in order to establish a claim of self-defense.     The trial court misstated the

law when it told Hawthorne that

       [s]elf-defense applies only when the Defendant takes the stand. * * * So
       no witness can come in here and testify as to what Mr. Hawthorne believed
       he was in fear for his life or not. So I don’t care – I mean, I’ll give you as
       much time as you want to try to secure this person, but that person isn’t the
       person who can testify and give you the self-defense argument.

Thus, according to the trial court, the only way Hawthorne could claim self-defense was if

he testified in his own defense.

       {¶21} This court has previously noted that a defendant does not have to testify in

his or her own defense in order to establish the defense of self-defense.        In State v.

Lyons, 8th Dist. Cuyahoga No. 43513, 1981 Ohio App. LEXIS 13428 (Dec. 3, 1981), this

court stated:   “The accused is free to choose between exercising his [or her] right to

silence and pursuing his [or her] affirmative defense.       Moreover, in many cases an

accused may exercise his [or her] right to silence and still prove self-defense through the

testimony of other witness.” Id. at 4.
       {¶22} We are cognizant of the fact that Hawthorne’s subpoenaed witness did not

appear to testify for trial.    But there is no requirement that the testimony with regard to a

claim of self-defense come solely from defense witnesses.        Again, the outcome would be

different if the trial court, after listening to all of the evidence, and finding out that the

defense had no witnesses to present, informed Hawthorne that he would have to testify in

order to claim self-defense.      But, here, the trial court erroneously told Hawthorne it was

a requirement for him to testify prior to knowing with certainty that the defense had no

other witnesses or evidence to present and without considering the testimony of the state’s

witnesses.

       {¶23} Therefore, we find that the trial court erred to the prejudice of Hawthorne

when it informed him that he had to testify in order to advance a claim of self-defense.

       {¶24} Next, we consider Hawthorne’s claim that the trial court erred when it did

not instruct the jury on the theory of self-defense.       The state correctly points out that

defense counsel did not object when the trial court said it was not including an instruction

on self-defense.    Thus, our review is for plain error.    Crim.R. 30(A) provides that “[o]n

appeal, a party may not assign as error the giving or the failure to give any instructions

unless the party objects before the jury retires to consider its verdict, stating specifically

the matter objected to and the grounds of the objection.”       Noncompliance with Crim.R.

30(A) waives all but plain error. State v. Phillips, 10th Dist. Franklin No. 14AP-79,

2014-Ohio-5162, ¶ 165.         See also Crim.R. 52(B).

       {¶25}     “Notice of plain error * * * is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” State

v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.        “For

a court to notice plain error, the error must be an obvious defect in a trial’s proceedings, it

must have affected substantial rights, and it must have affected the outcome of the trial.”

State v. Steele, 138 Ohio St.3d 1, 2013-Ohio-2470, 3 N.E.3d 135, ¶ 30, citing State v.

Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d 891, ¶ 11. Even if an error

satisfies these three requirements, a reviewing court is not obliged to correct them. State

v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240, citing Crim.R. 52(B).

       {¶26} Here, a confluence of errors occurred.      The trial court told Hawthorne that

self-defense applies only when the defendant takes the stand.       Hawthorne exercised his

constitutional right not to testify, and the trial court failed to consider the testimony of

other witnesses — specifically the victim, Cooperwood, and his girlfriend, Austin — in

determining whether a jury instruction on self-defense was warranted.          The failure to

consider Cooperwood’s and Austin’s testimony was based on the court’s erroneous belief

that only Hawthorne’s testimony could establish the defense.

       {¶27} Austin testified that Cooperwood asked where his bat was and told Austin

he was going to “bust” Hawthorne’s head open and “whoop his a**.”                 She further

testified that she was trying to keep Cooperwood from going outside to confront

Hawthorne but her boyfriend told her to “get the f*** off him before he beat [her] a**.”

       {¶28} Cooperwood testified that he called Hawthorne and told him, “I was going

to put him over my knee and whoop him like the kid he was.”          When the state inquired
why Cooperwood needed his bat, he replied, “It’s called a weapon.                  It’s called

protection. I don’t know what that man [was] about to pull up with in his hand. * * *

I’m not a gun toter, never been a gun toter.     I’m a fighter.   I’m a brawler.   That’s what

I do.     He came with the gun.      I came for fisticuffs.   He came to shoot.     I came to

fight.”     Cooperwood admitted that he was “highly upset” and was “expecting a fight”

with Hawthorne.         Cooperwood further admitted that he told Hawthorne that he

(Cooperwood) was going to “kick his a**”         and “I came out here to beat you up, pretty

much, but you bring a gun, like I said before, I came to fight, I’m a fighter.”

          {¶29} The trial court failed to take the witnesses’ testimony into consideration in

determining whether to instruct on the theory of self-defense.        The state contends that

the trial court did not commit plain error because Hawthorne never requested a jury

instruction on self-defense and did not object to the fact that the trial court indicated it

would not give the instruction.

          {¶30} It is clear from the record, however, and admitted to by the state, that the

defense’s theory at trial was one of self-defense.     The state actually requested a curative

instruction be given to the jury to explain why the court was not instructing the jury on

self-defense.     During this oral request, the state noted that the defense had introduced its

theory of self-defense during opening arguments.

          {¶31} The state claims in its supplemental brief that the defense changed its

strategy at some point when Hawthorne decided not to testify. But, as counsel told the

court in response to the state’s request, the defense did not introduce its theory of
self-defense in opening arguments based on its belief that Hawthorne would testify, but

rather raised it “assuming the other lady would come in” to testify. Once the trial court

erroneously told Hawthorne he had to testify in order to raise the defense of self-defense,

the defense’s entire theory of the case was essentially hamstrung.               While we

acknowledge that part of the defense’s problem was due to the subpoenaed witness failing

to appear, this fact does not negate that the court erred in telling Hawthorne he had to

testify in order to claim self-defense and in failing to consider other witness testimony as

it related to the defendant’s self-defense claim.

         {¶32} Because the trial court failed to take witness testimony into consideration

based on its erroneous assumption that a defendant must testify in order to claim the

defense of self-defense and did not give a jury instruction based on that assumption, we

find that the court’s error prejudiced Hawthorne and prevented him from receiving a fair

trial.

         {¶33} The dissent contends that the trial court’s incorrect statement of law had no

impact on the scope of evidence introduced at trial.     That may be, but it had an impact

on what the court itself considered when it decided not to instruct on self-defense.    The

court refused to give the self-defense instruction not because it did not believe that the

testimony presented failed to support the instruction. The court refused to give the

instruction because the defendant did not testify. This point is highlighted in the court’s

denial of the defense’s request to instruct on aggravated assault. During the discussion

on this point, the court considered the testimony of the state’s witnesses. The same
cannot be said for its decision not to instruct on self-defense.

        {¶34} The first assignment of error is sustained. Because we sustain the first

assignment of error as to Hawthorne’s argument on self-defense and reverse and remand

the case based on this argument, his other contention under this assignment of error —

that the court erred in denying his request to instruct the jury on aggravated assault — is

moot. See App.R. 12(A)(1)(C).

        {¶35} Likewise, based on the outcome of the first assignment of error, the second

assignment of error in which Hawthorne claims he received ineffective assistance of

counsel, and the third assignment of error, claiming prosecutorial misconduct, are also

moot.

        {¶36} In the fourth assignment of error, Hawthorne contends that the trial court

erred in joining his two cases for trial. In Case No. CR-16-603041-A, Hawthorne was

convicted of two counts of felonious assault, one count with one- and three-year firearm

specifications.   In Case No. CR-16-603867-A, Hawthorne was acquitted of having

weapons while under disability. Thus, because he was acquitted of having weapons

while under disability and we are reversing his felonious assault convictions, this

assignment of error is likewise moot.

        {¶37} Judgment reversed and case remanded for proceedings consistent with this

opinion.

        It is ordered that appellant recover of appellee costs herein taxed.

        The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

KATHLEEN ANN KEOUGH, P.J., CONCURS;
EILEEN T. GALLAGHER, J., DISSENTS WITH
SEPARATE OPINION


EILEEN T. GALLAGHER, J., DISSENTING:

       {¶38} I respectfully dissent from the majority’s determination that the trial court

erred to the prejudice of Hawthorne when it informed him that he had to testify in order to

advance a claim of self-defense.      I agree that the trial court erroneously instructed

Hawthorne that he would have to testify in order to claim self-defense. However, under

the circumstances of this case, I believe we are required to review the testimony presented

at trial in an effort to determine whether the trial court’s misstatement of law was

harmless.

       {¶39} In this case, Hawthorne exercised his right to not testify at trial despite the

trial court’s misstatement of law. In addition, the record reflects that defense counsel

rested without presenting any witnesses. Significantly, there is nothing in the record to

suggest that the trial court’s misstatement of law impacted or altered the witnesses or
evidence defense counsel planned on presenting at trial. Accordingly, I find no basis to

remand the matter where there is no indication that any new testimony or evidence would

be introduced at a new trial. In my view, this court has the necessary information to

determine whether the evidence supported a self-defense instruction. The trial court’s

incorrect statement of law had no impact on the scope of the evidence introduced at trial

and reversing on these grounds merely delays appellate review for a later date.

       {¶40} For the purposes of clarity, I note that if for example, Hawthorne would

have testified on his own behalf based on the trial court’s misstatement of law, I believe

reversible error would have existed. However, that did not occur in this case.

       {¶41} Based on the forgoing, this court is obligated to review the state’s evidence

in order to determine whether Hawthorne could satisfy his burden of proving

self-defense.   If the evidence does not support the instruction, the trial court’s

misstatement of law would be harmless and a new trial would not be required.
