State v. Hill ( 2011 )

[Cite as State v. Hill, 2011-Ohio-2523.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95379
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAMES E. HILL
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-534565
BEFORE: Keough, J., Cooney, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: May 26, 2011
ATTORNEY FOR APPELLANT
Joseph V. Pagano
P.O. Box 16869
Rocky River, OH 44116
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Matthew Ezzo
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, James E. Hill (“Hill”), appeals his
convictions for aggravated burglary, felonious assault, carrying a concealed
unloaded weapon, and aggravated menacing. For the reasons that follow, we
affirm.
{¶ 2} On March 5, 2010, Hill was charged in Case No. CR-534565 with
aggravated burglary, felonious assault, carrying a concealed weapon,
aggravated menacing, and intimidation. The aggravated burglary and
felonious assault charges each contained one- and three-year firearm
specifications. On March 10, 2010, Hill was charged in Case No. CR-534825
with assault. These two cases were joined for a jury trial, where the
following evidence was presented.1
{¶ 3} In the early morning hours of February 24, 2010, Hill came to the
Parma home of the victim, Amanda Manns (“Manns”), to talk to the mother of
his child, Bridget Valenta (“Valenta”), who was visiting Manns. According to
both Valenta and Manns, when Hill arrived at the residence, he was angry
and began loudly banging on the door. Valenta allowed him into Manns’s
residence to calm him down and avoid waking up the children inside the
residence and the neighbors. Once inside the apartment, Hill continued
yelling at Valenta as she attempted to calm him down. Manns approached
Hill only filed a Notice of Appeal in CR-534565. Therefore, any challenge to his conviction
1
in CR-534825 will not be addressed.
Hill and told him that if he did not calm down, she was going to call the
police. According to Valenta, when Manns grabbed at Hill, he became angry,
removed a gun from his waistband, put it to Manns’s head, and threatened to
kill her if she called the police. Hill then turned back towards Valenta as
Manns walked away to get her children. Manns then went upstairs to her
neighbor’s apartment and called the police. Hill left the scene with his
brother. Valenta testified that the entire incident happened very quickly:
“He was there, he was in the house, he was out the door within 60 seconds.”
{¶ 4} Before the police arrived, Valenta left Manns’s apartment and
went to her home in Berea, where she found Hill in her laundry room. Hill
was detained by Berea police and later transported to the Cuyahoga County
jail by Parma police. Parma police detective Marty Compton testified that no
gun was recovered.
{¶ 5} Later that day, while Hill was incarcerated at the Cuyahoga
County jail, he approached corrections officer John Parsley and demanded to
see a supervisor regarding his broken hand. According to Parsley, Hill then
became belligerent and started getting loud. Parsley stood at his desk and
repeatedly ordered Hill to step back; however, Hill refused and became more
agitated and aggressive. As Hill aggressively approached, Parsley pushed
him away. Hill then charged at Parsley, tackled him to the floor, and
repeatedly punched him in the head. Parsley sustained injuries to his head
and knee.
{¶ 6} The jury found Hill guilty of aggravated burglary, felonious
assault, including both one- and three-year firearm specifications, the lesser
offense of carrying a concealed unloaded weapon, aggravated menacing, and
assault. Hill was sentenced to a total prison term of six years.
{¶ 7} Hill appeals, raising four assignments of error, which will be
addressed together where appropriate.
Joinder of Indictments
{¶ 8} In his first assignment of error, Hill contends that the trial court
erred in granting the State’s motion to join the indictments.
{¶ 9} In order to properly preserve this issue for appeal, the defendant
must object to the joinder of indictments at the time of trial, and at the close
of the State’s case or at the close of evidence. State v. Owens (1975), 51 Ohio
App.2d 132, 366 N.E.2d 1367, paragraph two of the syllabus. Failure to
object and renew the objection waives all but plain error. State v.
Harris-Powers, Cuyahoga App. No. 87921, 2007-Ohio-389, 17. An error
does not constitute plain error unless, but for the error, the outcome of the
trial clearly would have been otherwise. Id. at 22, citing State v. Long
(1978), 53 Ohio St.2d 91, 372 N.E.2d 804. “Notice of plain error under
Crim.R. 52(B) is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” Long at
paragraph three of the syllabus.
{¶ 10} In this case, Hill objected to joinder of the indictments prior to the
presentation of evidence, but failed to renew his objection at the close of the
State’s case, which was the close of all evidence. Accordingly, he has waived
all but plain error.
{¶ 11} As a procedural matter, the record is devoid of any motion by the
State requesting that Hill’s indictments be joined for one trial. We glean
from the record that the trial court sua sponte joined these indictments for
trial. Under Crim.R. 13(A), a trial court may join the indictments sua sponte
if the charges could have been joined under Crim.R. 8(A). State v. Moore
(Jan. 31, 1994), Madison App. No. CA92-12-034; State v. VanHorn (Mar. 3,
2000), Lucas App. No. L-98-1171.
{¶ 12} The law favors joining multiple offenses in a single trial under
Crim.R. 8(A) if the offenses charged “are of the same or similar character.”
State v. Lott (1990), 51 Ohio St.3d 160, 163, 555 N.E.2d 293, citing State v.
Torres (1981), 66 Ohio St.2d 340, 421 N.E.2d 1288. Separate criminal
charges joined pursuant to Crim.R. 8(A) need not be identical, but must be of
the “same or similar character.” Moore, supra. Thus, Crim.R. 13 permits a
trial court to “order two or more indictments to be tried together if the
offenses could have been joined in a single indictment[.]”
{¶ 13} Joinder is appropriate where the evidence is interlocking and the
jury is capable of segregating the proof required for each offense. State v.
Czajka (1995), 101 Ohio App.3d 564, 577-578, 656 N.E.2d 9. However,
Crim.R. 14 requires separate trials if it appears that a criminal defendant
would be prejudiced by such joinder. The defendant bears the burden of
demonstrating both prejudice and that the trial court abused its discretion in
denying severance of the indictments. State v. Kirk, Cuyahoga App. Nos.
95260 and 95261, 2011-Ohio-1687, 31, citing State v. Coley, 93 Ohio St.3d
253, 2001-Ohio-1340, 754 N.E.2d 1129.
{¶ 14} We find joinder was proper under Crim.R. 8(A) and Crim.R. 13.
The record indicates the crimes were committed on the same day and were of
the same or similar character. Hill arrived at Manns’s apartment in a highly
agitated state. When he entered the apartment, he continued yelling at
Valenta. When Valenta was unable to calm him down, Manns intervened by
stating that if he did not calm down, she would call the police. At that point,
Hill put a gun to Manns’s head and threatened her.
{¶ 15} Later that day, Hill approached corrections officer Parsley and
demanded to see a supervisor. Hill then became belligerent and started
yelling. After Parsley repeatedly told Hill to step away from the desk, Hill
became more agitated and aggressively approached Parsley. Parsley was
able to push Hill back, but Hill charged at Parsley and knocked him to the
floor and then repeatedly punched Parsley in the head. Applying Crim.R.
8(A), we conclude that the joinder was proper because the criminal offenses
were of the same or similar character: Hill resorted to violence when
someone tried to intervene or calm him down when he was in an agitated
state.
{¶ 16} Hill contends on appeal that he was prejudiced by joining the two
indictments because the “two incidents had nothing in common and the
joinder served only to inflame the jurors [sic] passion by suggesting that [he]
had a violent temper.” He further asserts that the evidence relating to each
offense would not have been admissible in the other case under Evid.R.
404(B) if the indictments had proceeded to separate trials.
{¶ 17} “A prosecutor can use two methods to negate such claims of
prejudice.” Lott at 163. Under the first method, the “other acts” test, the
prosecutor may argue that he could have introduced evidence of the other
crime under the “other acts” portion of Evid.R. 404(B) if the other offense had
been severed for trial. Id. Under the second method, the “joinder” test, the
prosecutor is not required to meet the stricter “other acts” admissibility test,
but merely is required to show that evidence of each crime joined at trial is
simple and direct. Id. “[W]hen simple and direct evidence exists, an accused
is not prejudiced by joinder regardless of the nonadmissibility of evidence of
these crimes as ‘other acts’ under Evid.R. 404(B).” Id.{¶ 18} We find that the joinder did not prejudice Hill because under the
“joinder test” the evidence of each event was simple and direct. Each victim
and corroborating witnesses gave straightforward testimony. See Kirk at
40. Therefore, the trier of fact was capable of segregating the proof required
for each offense. See State v. Mills (1992), 62 Ohio St.3d 357, 362, 582
N.E.2d 972.
{¶ 19} Accordingly, we do not find plain error with the trial court’s
decision to join these two indictments for trial. Hill’s first assignment of error
is overruled.
Sufficiency and Manifest Weight of the Evidence
{¶ 20} The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Bowden, Cuyahoga
App. No. 92266, 2009-Ohio-3598, ¶12. 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 (1991), 61 Ohio St.3d 259, 574
N.E.2d 942, paragraph two of the syllabus.
{¶ 21} A manifest weight challenge, on the other hand, questions
whether the prosecution met its burden of persuasion. State v. Thomas
(1982), 70 Ohio St.2d 79, 80, 434 N.E.2d 1356. A reviewing court may reverse
the judgment of conviction if it appears that 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 finding that a conviction
was supported by the manifest weight of the evidence necessarily includes a
finding of sufficiency. Id. at 388.
{¶ 22} In his second and third assignments of error, Hill contends that
his convictions for aggravated burglary, felonious assault, and the
corresponding firearm specifications were not supported by sufficient
evidence and were against the manifest weight of the evidence.2
{¶ 23} Under R.C. 2911.11(A)(2), regarding aggravated burglary, “[n]o
person, by force, stealth, or deception, shall trespass in an occupied structure
* * *, when another person * * * is present, with purpose to commit in the
structure * * * any criminal offense, if * * * [t]he offender has a deadly
weapon or dangerous ordnance on or about the offender’s person or under the
offender’s control.”
{¶ 24} Hill asserts that the State failed to establish the element of
trespass because he had permission to be in Manns’s apartment and even if
that permission was revoked, he did not remain on the premises, but left
Manns’s apartment immediately after the confrontation.
Hill makes no argument challenging his convictions for carrying a concealed unloaded
2
weapon and aggravated menacing. Therefore, we will not address those convictions in this
{¶ 25} “Trespass” is knowingly entering or remaining on the land or
premises of another without privilege to do so. R.C. 2911.21(A)(1).
Although a person may have permission to enter the premises, permission
“can be revoked upon an act of violence against a person who has the
authority to revoke the privilege of initial entry.” State v. Steffen (1987), 31
Ohio St.3d 111, 115, 509 N.E.2d 383. Accordingly, once Hill pointed the gun
at Manns’s head and threatened her, permission to be in her apartment was
implicitly revoked. We make no distinction in duration of time because Hill
remained in the apartment for a brief period of time thereafter, possibly
seconds. When Hill decided to threaten Manns with a gun, the trespass
occurred; neither Manns nor Valenta needed to explicitly revoke his privilege
or order him to leave. Therefore, we hold that once an act of violence occurs
against a person who has the authority to revoke the privilege of initial entry,
the perpetrator’s privilege or permission is revoked immediately; no time or
duration between the act of violence and when the perpetrator leaves needs to
be established.
{¶ 26} Hill further challenges his aggravated burglary conviction by
asserting that the State failed to prove the element of intent, such that no
evidence existed that he entered the apartment with any purpose of
committing a criminal offense. The Ohio Supreme Court has rejected this
assignment of error.
argument, holding that “for purposes of defining the offense of aggravated
burglary, a defendant may form the purpose to commit a criminal offense at
any point during the course of a trespass.” State v. Fontes, 87 Ohio St.3d
527, 530, 2000-Ohio-472, 721 N.E.2d 1037. Therefore, even though Hill may
not have had any criminal intent when he entered the apartment, his purpose
changed when he decided to remove the gun from his waistband, put it to
Manns’s head, and threaten her. Accordingly, Hill’s arguments challenging
his aggravated burglary conviction are without merit.
{¶ 27} Hill contends that his felonious assault conviction was also
improper because no one was injured. R.C. 2903.11(A)(2), felonious assault,
provides that “no person shall knowingly * * * cause or attempt to cause
physical harm to another * * * by means of a deadly weapon or dangerous
ordnance.” The Ohio Supreme Court has held that “[t]he act of pointing a
deadly weapon at another coupled with a threat, which indicates an intention
to use such weapon, is sufficient evidence to convict a defendant of the offense
of ‘felonious assault’ as defined by R.C. 2903.11(A)(2).” State v. Green (1991),
58 Ohio St.3d 239, 569 N.E.2d 1038, at the syllabus. The testimony of
Manns and Valenta established that Hill put a gun to Manns’s head and
threatened her with bodily harm. Manns testified she was scared and feared
for her children. This is sufficient to sustain appellant’s conviction for
felonious assault.
{¶ 28} Hill was found to have committed the above offenses with the use
of a firearm. He contends there was insufficient evidence to convict him of
the firearm specifications, however, because there was no evidence that the
gun was operable. Hill also argues that all of his convictions were against
the weight of the evidence because (1) no gun was recovered; (2) the State
failed to prove that the gun was operable; and (3) Valenta’s written statement
to police did not mention that Hill used a gun.
{¶ 29} The fact that the gun was not recovered was not fatal to the
State’s case. Both Manns and Valenta testified to seeing Hill with the gun in
his hand and described the gun to the jury. Additionally, the jury heard the
911 call made by Manns immediately after the incident wherein she stated
that Hill held a gun to her head. Finally, the testimony established that Hill
left the scene in a vehicle that traveled from Parma to Berea. The jury could
have concluded that the gun was abandoned at any point during that time.
{¶ 30} Concerning operability, “the trier of fact may rely upon
circumstantial evidence, including, but not limited to, the representations
and actions of the individual exercising control over the firearm.” R.C.
2923.11(B)(2). “The [S]tate can prove that the weapon was operable or could
readily have been rendered operable at the time of the offense in a variety of
ways without admitting the firearm allegedly employed in the crime into
evidence.” State v. Gains (1989), 46 Ohio St.3d 65, 545 N.E.2d 68, syllabus.
{¶ 31} In Thompkins, supra, the Ohio Supreme Court held in paragraph
one of the syllabus, that “the trier of fact may consider all relevant facts and
circumstances surrounding the crime, which include any implicit threat made
by the individual in control of the firearm” when determining whether a
weapon was operable. Since Thompkins, this court has routinely found
sufficient evidence to support a firearm specification when the defendant
brandished a firearm and implicitly threatened to fire it by pointing it at the
victim. See State v. Hayes, Cuyahoga App. No. 93785, 2010-Ohio-5234; State
v. Brooks, Cuyahoga App. No. 92389, 2009-Ohio-5559; State v. Robinson,
Cuyahoga App. No. 80718, 2003-Ohio-156.
{¶ 32} In this case, we do not have an implicit threat; rather, Hill made
an explicit threat of violence towards the victim. The State offered sufficient
evidence of operability through testimony that Hill pointed the gun at
Manns’s head and verbally threatened to kill her if she called the police.
Manns testified that she believed the gun was real and she was scared for her
life. Valenta also testified that she knew the gun was real because, through
her 13 to 14 years of knowing Hill, she knew that he had guns.
{¶ 33} Finally, the fact that Valenta did not include in her written
statement to police that Hill used a gun in committing the offense was not
detrimental to the State’s case because Valenta testified that a gun was used.
Even if the jury found Valenta’s testimony less credible due to the apparent
contradiction, the jury had already heard Manns’s testimony and her 911 call
that Hill had a gun.
{¶ 34} Accordingly, we conclude that the jury did not lose its way in
finding Hill guilty of aggravated burglary, felonious assault, and the
corresponding firearm specifications and that sufficient evidence was
presented to support each conviction. Hill’s assignments of error two and
three are overruled.
Prosecutorial Misconduct and Ineffective Assistance of Counsel
{¶ 35} In his fourth assignment of error, Hill contends that the improper
comments made by the prosecutor during closing arguments amounted to
prosecutorial misconduct; thus, defense counsel’s failure to object to them
denied him his constitutional right to effective assistance of counsel.
{¶ 36} Closing arguments must be viewed in their entirety to determine
whether the disputed remarks were prejudicial. State v. Mann (1993), 93
Ohio App.3d 301, 312, 638 N.E.2d 585. An appellant is entitled to a new
trial only when a prosecutor asks improper questions or makes improper
remarks and those questions or remarks substantially prejudiced appellant.
State v. Pate, Cuyahoga App. No. 95382, 2011-Ohio-1692, 19, citing State v.
Smith (1984), 14 Ohio St.3d 13, 470 N.E.2d 883.
{¶ 37} Hill argues that the prosecution committed misconduct during
closing arguments by (1) improperly characterizing his conduct as a “violent
rampage,” (2) misstating the evidence in his closing argument, and (3)
vouching for the credibility of a witness. Hill alleges that the cumulative
effect of these comments during closing argument was prejudicial, thus
depriving him of a fair trial.
{¶ 38} We note at the outset that defense counsel did not object to these
statements and, in turn, has waived the issue on appeal except for plain
error. Pate, citing State v. Owens (1975), 51 Ohio App.2d 132, 146, 366
N.E.2d 1367. As previously discussed, notice of plain error is to be taken
with the utmost caution, to prevent a manifest miscarriage of justice, and
should be found when, but for the error, the outcome of the trial would have
been different. Long, supra.
{¶ 39} Hill claims that the prosecutor’s comment suggesting that he was
on a “violent rampage” on the day of the offenses was an improper comment
on “other acts” evidence, in violation of Evid.R. 404(B). Although the
prosecutor used this phrase in describing Hill’s conduct, we do not find
Evid.R. 404(B) an applicable challenge or that the phrase was improper or
prejudicial. The jury heard testimony that Hill committed acts of violence
against two different victims, at two different locations, on the same day.
The prosecutor’s characterization was not improperly prejudicial.
{¶ 40} Hill also challenges the prosecutor’s comment vouching for the
credibility of Valenta, stating that she was telling the truth. Hill fails to cite
in the record where the challenged comment was made; accordingly, we need
not address this argument. App.R. 12(A)(2) and 16(A)(7). Nevertheless, we
find that the prosecutor’s isolated comment was not prejudicial and did not
amount to plain error. “Isolated comments by a prosecutor are not to be
taken out of context and given their most damaging meaning.” State v.
Carter, 89 Ohio St.3d 593, 603 2000-Ohio-172, 734 N.E.2d 345, citing
Donnelly v. DeChristoforo (1974), 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d
431. Furthermore, the trial court, prior to the start of closing arguments,
instructed the jury that closing arguments are not evidence. It is presumed
that the jury followed this instruction.
{¶ 41} Hill’s final challenge pertains to the prosecutor’s repeated
misstatement and mischaracterization of the evidence in his closing
argument by asserting to the jury that Manns and Valenta told Hill to leave
the apartment. Our review of the record demonstrates that this
misstatement was not an isolated comment, but occurred at least eight times
during the prosecutor’s closing and rebuttal arguments. The evidence clearly
showed that neither Manns nor Valenta told Hill to leave the apartment.
The prosecution must avoid insinuations and assertions that are calculated to
mislead the jury. Berger v. United States (1935), 295 U.S. 78, 88, 55 S.Ct.
629, 79 L.Ed. 1314. But for the overwhelming proof of guilt in this matter,
this repeated mischaracterization would have constituted plain and
prejudicial error. We cannot condone this type of trial tactic.
{¶ 42} Nevertheless, we find that the prosecutor’s comments, either
separately or cumulatively, do not rise to the level of misconduct that would
substantively deprive Hill of a fair trial. Having found that the prosecutor’s
comments did not constitute misconduct, Hill’s defense counsel was,
therefore, not ineffective for failing to object to them.
{¶ 43} Hill’s final assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.
Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
COLLEEN CONWAY COONEY, P.J., and
SEAN C. GALLAGHER, J., CONCUR