[Cite as State v. Powell, 2022-Ohio-3220.]

Atty. Kathleen Thompson, City of Youngstown Prosecutor, 9 West Front Street, 3

rd

Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee and

Atty. Nicholas S. Cerni, 755 Boardman Canfield Road, Suite M-1, Youngstown, Ohio 

44512, for Defendant-Appellant.

Dated: September 7, 2021

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

WILLIAM L. POWELL,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 21 MA 0050

Criminal Appeal from the

Youngstown Municipal Court of Mahoning County, Ohio

Case No. 2020 CRB 1012

BEFORE:

David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.

JUDGMENT:

Affirmed.
– 2 –

Case No. 21 MA 0050

D’Apolito, J.

{¶1} Appellant, William L. Powell, appeals from the May 21, 2021 judgment of 

the Youngstown Municipal Court sentencing him for misdemeanor assault following a 

bench trial. On appeal, Appellant argues the trial court erred in finding him guilty without 

hearing closing arguments. Finding no reversible error, we affirm. 

FACTS AND PROCEDURAL HISTORY

{¶2} On August 28, 2020, a criminal complaint was filed against Appellant 

charging him with assault, a misdemeanor of the first degree, in violation of R.C. 

2903.13(A). Appellant was appointed counsel, pled not guilty, and waived his right to a 

speedy trial.

{¶3} A bench trial was held on April 13, 2021. Appellee, the State of Ohio, 

presented two witnesses: Officer Zachary Scott, with the Youngstown Police Department 

(“YPD”); and Lequila Hatten (“the victim”). 

{¶4} On August 28, 2020, the victim was at Appellant’s residence. YPD were 

called in reference to a fight. Officer Scott arrived first. He found the victim with “fresh 

blood” on her face, a cut above one eye, and her other eye swollen shut. (4/13/2021 

Bench Trial T.p., p. 7). The victim was outside “crying, pretty hysterical.” (Id. at p. 9). 

The victim told Officer Scott that Appellant was the perpetrator. Appellant was ultimately 

arrested. There was no evidence that he was injured in any way. The victim testified that 

Appellant “wanted to have sex” and “started talking crazy.” (Id. at p. 34). The victim 

began to leave and the “[n]ext thing you know, [Appellant] was hitting [her].” (Id.) 

{¶5} At the conclusion of the State’s case, Appellant moved for an acquittal 

pursuant to Crim.R. 29, which was overruled by the trial court. (Id. at p. 50). Appellant 

did not present any witnesses and the defense rested. (Id.) The trial court immediately 

found Appellant guilty of misdemeanor assault without hearing closing arguments. (Id.) 

Defense counsel did not object to the omission nor request closing arguments. (Id.) 

Rather, defense counsel inquired as to a sentencing date. (Id. at p. 50-52). 

{¶6} A sentencing hearing was held on May 5, 2021. On May 21, 2021, the trial 

court sentenced Appellant to 90 days in jail, credit for five days served, with 90 days 
– 3 –

Case No. 21 MA 0050

suspended and two years of probation. In addition, Appellant was ordered to complete 

substance abuse and to comply with a mental health evaluation, including any treatment. 

Appellant was also fined $100 plus costs.1 

{¶7} Appellant filed a timely appeal and raises one assignment of error. 

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED WHEN IT FAILED TO ALLOW THE 

DEFENDANT TO RENEW HIS RULE 29 MOTION AND PROCEED TO 

CLOSING ARGUMENT.

{¶8} In his sole assignment of error, Appellant mainly argues the trial court erred 

in finding him guilty of misdemeanor assault without hearing closing arguments.

{¶9} Specifically, Appellant’s position is that if a trial court fails to afford an 

opportunity for closing arguments and the defense remains silent on the omission, the 

silence is not a waiver of the right to present a closing argument. In support, Appellant 

cites to three cases: State v. Baron, 7th Dist. Mahoning No. 05 MA 156, 2007-Ohio-4323; 

State v. Jack, 156 Ohio App.3d 260, 2004-Ohio-775 (2nd Dist.); State v. Bowersock, 7th 

Dist. Monroe Nos. 05 MO 19 and 05 MO 20, 2006-Ohio-7102. Appellant’s reliance on 

these cases is misplaced, however, as they all pre-date the Supreme Court of Ohio’s 

holding in State v. McCausland, 124 Ohio St.3d 8, 2009-Ohio-5933, which narrowed the 

application of this rule. 

The United States Supreme Court has held that a statute permitting a trial 

judge to deny a criminal defendant closing argument denies “the basic right 

of the accused to make his defense” in violation of the Sixth Amendment of 

the United States Constitution. Herring v. New York (1975), 422 U.S. 853, 

859, 95 S.Ct. 2550, 45 L.Ed.2d 593. Thus, a trial court is not permitted 

to totally deny a criminal defendant the opportunity to present a closing 

argument whether his trial is to a jury or to the bench. Id., see also, 

e.g., State v. McCausland, [supra], at ¶ 6. However, the right to present a 

1 Appellant’s sentence was stayed pending appeal. 
– 4 –

Case No. 21 MA 0050

closing argument may be waived. Id. at ¶ 7, 918 N.E.2d 507, citing Yopps

v. State (1962), 228 Md. 204, 207, 178 A.2d 879.

State v. Barnes, 3rd Dist. Auglaize No. 2-09-23, 2010-Ohio-987, ¶ 26; see also State v. 

Askia, 5th Dist. Delaware No. 2012-CA-13, 2012-Ohio-4670, ¶ 33; State v. Frierson, 8th 

Dist. Cuyahoga No. 105618, 2018-Ohio-391, ¶ 29. 

{¶10} The Supreme Court of Ohio has held that such a waiver need not be 

express, intentional, and voluntary. McCausland, supra, at ¶ 8-10. Rather, “[a] criminal 

defendant waives the Sixth Amendment right to present a closing argument when he or 

she neither requests a closing argument nor objects to its omission.” Id. at syllabus. 

{¶11} As stated, at the conclusion of the State’s case, Appellant moved for an 

acquittal pursuant to Crim.R. 29, which was overruled by the trial court. Appellant did not 

present any witnesses and the defense rested. The trial court immediately found 

Appellant guilty of misdemeanor assault without hearing closing arguments. Defense 

counsel did not object to the omission nor request closing arguments. Rather, defense 

counsel inquired as to a sentencing date. Unlike Bowersock, the trial court did not have 

any discussion about closing arguments that would lead one to believe that an objection 

or inquiry about the omission would have been futile. Rather, the record reveals the 

failure to hear closing arguments was merely an oversight and not done intentionally, 

which could have been corrected if the defense had not remained silent on the matter. 

{¶12} Based on the facts presented, Appellant waived his Sixth Amendment right 

to present a closing argument because he neither requested a closing argument nor 

objected to its omission. See McCausland, supra, at syllabus; see also Frierson, supra, 

at ¶ 31 (Holding that the better practice would have been for the trial judge to ask defense 

counsel if he wanted to make a closing argument; the appellant’s counsel failed to request 

an opportunity to make a closing argument, both before and after he orally argued his 

Crim.R. 29 motion and, thus, waived the right to make a closing argument; however, that 

waiver does not constitute ineffective assistance because the appellant’s counsel may 

have strategically chosen not to pursue a closing argument to prevent a rebuttal by the 

State.) 
– 5 –

Case No. 21 MA 0050

{¶13} Accordingly, the trial court did not err in finding Appellant guilty of 

misdemeanor assault without hearing closing arguments as Appellant waived this right 

because he neither requested a closing argument nor objected to its omission.

CONCLUSION

{¶14} For the foregoing reasons, Appellant’s sole assignment of error is not welltaken. The May 21, 2021 judgment of the Youngstown Municipal Court sentencing 

Appellant for misdemeanor assault following a bench trial is affirmed. 

Donofrio, P.J., concurs.

Robb, J., concurs.
[Cite as State v. Powell, 2022-Ohio-3220.]

For the reasons stated in the Opinion rendered herein, the assignment of error 

is overruled and it is the final judgment and order of this Court that the judgment of the 

Youngstown Municipal Court of Mahoning County, Ohio, is affirmed. Costs to be 

waived.

A certified copy of this opinion and judgment entry shall constitute the mandate 

in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that 

a certified copy be sent by the clerk to the trial court to carry this judgment into 

execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.