State v. Hill , 2013 Ohio 717 ( 2013 )

[Cite as State v. Hill, 2013-Ohio-717.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 25172
Plaintiff-Appellee :
: Trial Court Case No. 11-CRB-730
v. :
: (Criminal Appeal from Montgomery
ANTHONY A. HILL : (County Municipal Court –
: (Western Division)
Defendant-Appellant :
:
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OPINION
Rendered on the 1st day of March, 2013.
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GREGORY P. SPEARS, Atty. Reg. #0009002, Montgomery County Municipal Court –
Western Division Prosecutor’s Office, 195 South Clayton Road, New Lebanon, Ohio 45345
Attorney for Plaintiff-Appellee
MICHAEL C. THOMPSON, Atty. Reg. #0041420, Wight-Dunbar Business Village, 5 North
Williams Street, Dayton, Ohio 45402-2843
Attorney for Defendant-Appellant
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HALL, J.
{¶ 1} Anthony A. Hill appeals from his conviction and sentence on one count of
aggravated menacing, a first-degree misdemeanor.
{¶ 2} Hill advances two assignments of error challenging the legal sufficiency and
manifest weight of the evidence to support his conviction.
{¶ 3} The victim, Marcus Hunter, testified at trial that he had known Hill for “quite
a long time.” Hill previously had been married to Hunter’s wife. According to Hunter, the two
men had a history of “problems” prior to the aggravated-menacing incident. Without
elaboration, Hunter recalled a “car incident.” He also recalled an incident where Hill appeared
and started taking pictures of Hunter and others who were sitting on a porch. On at least one
prior occasion, Hunter had called the police on Hill. That incident involved Hunter’s son’s
mother’s house catching fire. During the incident, Hunter and Hill “got into a little
competition [and] fussin’ argument[.]”
{¶ 4} The incident underlying the aggravated-menacing charge occurred on May 24,
2011. That evening, Hunter drove to 118 Oberlin Avenue to visit his son. Hill resided next
door at 128 Oberlin Avenue. Hunter was in his vehicle, which was parked on the side of road,
when Hill “came around and blocked [Hunter] in with his truck.” (Tr. Transcript at 17). After
pulling in front of Hunter, who had been trying to move his vehicle, Hill ran into his house
and returned holding a revolver. (Id. at 17-18). According to Hunter, Hill was approximately
twenty feet away from him. (Id. at 19). Hill proceeded to do something in the back of his
truck. (Id. at 20). Although Hill never pointed the gun at Hunter or made any threatening
statements, Hunter testified that Hill “brought it out” and “showed it.” (Id. at 19, 21). Hunter
called 911 and remained in his vehicle until police arrived because he “feared for [his] life.”
(Id. at 25). When asked why he was fearful, Hunter responded that Hill was known for
carrying pistols. (Id. at 20). According to Hunter, Hill walked back inside his house when
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police arrived. (Id. at 21).
{¶ 5} Hill testified in his own defense. He admitted parking on the street but denied
blocking Hunter’s vehicle. (Id. at 66, 68). According to Hill, he went inside his house and
opened a gate. (Id.). When he returned outside, Hill heard Hunter announcing that Hill had a
gun in his hand. (Id. at 70-71). Hill testified that he was not in possession of a gun and that he
ignored Hunter. (Id. at 71-72). He proceeded to move his truck, put away a lawnmower, lock
his gate, and go back inside. (Id. at 72). Hill theorized that Hunter had fabricated the allegation
about a gun to “get back” at him for previously having called the police to report Hunter’s
gambling. (Id. at 73, 75).
{¶ 6} After hearing the evidence, the trial court found Hill guilty of aggravated
menacing. In so doing, the trial court found that “[t]he defendant’s testimony as to his
possession or non-possession of a handgun lacks credibility.” (Doc. #37 at 1). The trial court
imposed a 180-day jail sentence with 90 days suspended. It imposed a partially suspended fine
and ordered Hill to pay court costs. Finally, the trial court placed Hill on five years of
community control with conditions. The trial court suspended execution of the sentence
pending appeal.
{¶ 7} As noted above, Hill’s two assignments of error challenge the legal
sufficiency and manifest weight of the evidence to sustain his conviction. When a defendant
challenges the sufficiency of the evidence, he is arguing that the State presented inadequate
evidence on an element of the offense to sustain the verdict as a matter of law. State v. Hawn,
138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist.2000). “An appellate court’s function
when reviewing the sufficiency of the evidence to support a criminal conviction is to examine
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the evidence admitted at trial to determine whether such evidence, if believed, would convince
the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a reasonable
doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus.
{¶ 8} Our analysis is different when reviewing a manifest-weight argument. When a
conviction is challenged on appeal as being against the weight of the evidence, an appellate
court must review the entire record, weigh the evidence and all reasonable inferences, consider
witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of
fact “clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387,
1997-Ohio-52, 678 N.E.2d 541. A judgment should be reversed as being against the manifest
weight of the evidence “only in the exceptional case in which the evidence weighs heavily
against the conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983).
{¶ 9} With the foregoing standards in mind, we conclude that Hill’s aggravated
menacing conviction is supported by legally sufficient evidence and is not against the weight
of the evidence. The aggravated menacing statute, R.C. 2903.21(A), provides: “No person
shall knowingly cause another to believe that the offender will cause serious physical harm to
the person or property of the other person[.]”
{¶ 10} In his legal-sufficiency argument, Hill claims the State failed to establish that
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Hunter believed he would cause serious physical harm. At a minimum, Hill contends the State
did not establish that he knowingly caused Hunter to maintain such a belief. Hill asserts that
observation of a firearm, alone, is insufficient to support an aggravated menacing conviction.
Even if Hunter had a subjective fear of serious physical harm based on observation of a
firearm, Hill contends there was “not one scintilla of evidence” to support that fear or to
support a finding that he knowingly caused Hunter to have it.
{¶ 11} Upon review, we find legally sufficient evidence to sustain Hill’s conviction.
Accepting Hunter’s testimony as true, which the trial court was entitled to do, it reasonably
could have found the essential elements of the crime proven beyond a reasonable doubt. Hill
previously had been married to Hunter’s wife, and the two men had some history of problems.
On the day in question, Hill blocked Hunter’s vehicle with his truck as Hunter was trying to
move. Hill then ran inside his house and returned carrying a revolver. He came within twenty
feet of Hunter holding the revolver, which he “brought out” and “showed.” This evidence is
legally sufficient to support a finding that Hill knowingly caused Hunter to believe Hill would
cause him serious physical harm.
{¶ 12} Hill’s reliance on State v. Britton, 181 Ohio App.3d 415, 2009-Ohio-1282,
909 N.E.2d 176 (2d Dist.), fails to persuade us otherwise. In Britton, the defendant previously
had accused the victim of stealing her son’s prescription. On that occasion, the defendant had
threatened the victim, who had responded by brandishing a knife before leaving.
Approximately one year later, the two women met again in a parking lot. The defendant pulled
up to the victim’s car and stated: “I haven’t forgotten what happened” and “it’s not over.”
While speaking, the defendant also reached into her jacket as if to retrieve something. The
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defendant’s actions made the victim “a little nervous,” and she drove away to avoid a
confrontation. On appeal, this court found insufficient evidence to support an aggravated
menacing conviction, reasoning:
After a thorough review of the evidence submitted regarding the
confrontation between Britton and Stephens on December 16, 2007, no
testimony was adduced that established that Stephens believed that she would
suffer serious physical harm at the hands of Britton. As an initial matter,
Britton’s two statements, “I haven’t forgotten what happened” and “it’s not
over,” while somewhat foreboding, do not constitute a threat of serious
physical harm. Stephens’s testimony that Britton’s statement only made her “a
little nervous” further demonstrates that Stephens did not believe that she was
in danger of serious physical harm from Britton. Although the evidence was
that Stephens was intimidated and justifiably unnerved, it cannot support a
finding of a belief that Britton would cause her or her property “serious
physical harm.” * * *.
Id. at ¶51.
{¶ 13} Unlike the confrontation in Britton, we believe Hill’s act of blocking in
Hunter’s vehicle and displaying a revolver reasonably can be construed as a threat of serious
physical harm. Therefore, Britton is distinguishable. The other cases string-cited by Hill are of
little assistance. See State v. Akbar, 2d Dist. Montgomery No. 18766, 2001-Ohio-1714;
Dayton v. Davis, 136 Ohio App.3d 26, 735 N.E.2d 939 (2d Dist.1999); and Dayton v. Gunn,
2d Dist. Montgomery No. 11602 (Nov. 21, 1989). In Akbar, this court upheld an
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aggravated-menacing conviction where the defendant angrily threatened to “take care of,”
“take out,” and “get” the victim. In Davis, this court upheld an aggravated-menacing
conviction based on implicitly threatening e-mails and website images. Finally, in Gunn, this
court upheld an aggravated-menacing conviction where the defendant threatened the victim
with sexual abuse and threw punches at her. Akbar, Davis, and Gunn bear no factual similarity
to the case before us and do not alter our belief that Hill’s conviction is supported by legally
sufficient evidence. The first assignment of error is overruled.
{¶ 14} With regard to the weight of the evidence, Hill again claims the evidence does
not support a finding that Hunter was in fear of serious physical harm or that he knowingly
caused Hunter to have such a fear. Hill stresses the absence of any verbal threats or threatening
gestures. He argues that any fear Hunter experienced was a result of “unreasonable
hypersensitivity” unconnected to anything he did. We disagree. The record supports a finding
that Hill knowingly caused Hunter to fear serious physical harm by blocking Hunter’s vehicle
and displaying a revolver. Having reviewed the record, we cannot say the trial court clearly
lost its way and created a miscarriage of justice when it credited Hunter’s testimony and found
Hill guilty. The evidence does not weigh heavily against the conviction. The second
assignment of error is overruled.
{¶ 15} The judgment of the Montgomery County Municipal Court is affirmed.
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DONOVAN and WELBAUM, JJ., concur.
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Copies mailed to:
Gregory P. Spears
Michael C. Thompson
Hon. James L. Manning