State v. Hicks , 2015 Ohio 4978 ( 2015 )

[Cite as State v. Hicks, 2015-Ohio-4978.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102206
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANTONIO R. HICKS
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-581201-A
BEFORE: E.A. Gallagher, J., Celebrezze, A.J., and Jones, J.
RELEASED AND JOURNALIZED: December 3, 2015
ATTORNEY FOR APPELLANT
Russell S. Bensing
1360 East 9th St.
Suite 600
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Glen Ramdhan
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} Defendant-appellant Antonio R. Hicks appeals his conviction for aggravated
murder and the imposition of consecutive sentences on his convictions for aggravated
murder and having weapons while under disability. Hicks contends that his conviction
for aggravated murder should be overturned because there was insufficient evidence to
prove the element of prior calculation and design beyond a reasonable doubt and that the
jury’s finding that the state had proved that element was against the manifest weight of the
evidence. He also contends that the trial court erred by failing to include findings in its
sentencing journal entry supporting the imposition of consecutive sentences for his
aggravated murder and having weapons while under disability convictions. For the
reasons that follow, we vacate Hicks’ aggravated murder conviction and sentence and
remand the matter for resentencing.
Factual and Procedural Background
{¶2} On December 30, 3013, a Cuyahoga County Grand Jury indicted Hicks on
seven counts: aggravated murder under R.C. 2903.01(A), purposely causing death with
prior calculation and design (Count 1); aggravated murder under R.C. 2903.01(B),
purposely causing death during the commission or attempted commission of kidnapping
(Count 2); kidnapping under R.C. 2905.01(A)(3) (Count 3); murder under R.C.
2903.02(B) (Count 4); felonious assault under R.C. 2903.11(A)(2) (Count 5); having
weapons while under disability under R.C. 2923.13(A)(2) (Count 6); and grand theft under
R.C. 2913.02(A)(1) (Count 7). All of the counts contained one- and three-year firearm
specifications. The kidnapping and felonious assault counts also contained a notice of
prior conviction and a repeat violent offender specification. Hicks pled not guilty and the
case proceeded to trial. Hicks waived a jury trial on the having weapons while under
disability count, the notice of prior conviction and the repeat violent offender
specification. The remaining counts were tried before a jury.
{¶3} At trial, the state presented testimony from 28 witnesses and offered nearly
200 exhibits into evidence. A summary of the evidence pertinent to the issues raised in
Hicks’ appeal follows.
{¶4} On the evening of December 20, 2013, Hicks and his wife, Diana
Fields-Edmonds, were scheduled to go out on a “date night.” Kecia Johnson,
Fields-Edmonds’ best friend, testified that she and Fields-Edmonds had been exchanging
texts about the couple’s plans for the evening earlier that day. Hicks and Fields-Edmonds
had had some marital difficulties and Hicks had recently returned home after staying at his
father’s house and enjoying “female company” for three weeks. Allegedly, this was not
the first time Hicks and Fields-Edmonds had issues with their marriage. Ashi Robinson,
Fields-Edmonds’ “God sister” testified that although Fields-Edmonds and Hicks generally
had a “loving and caring relationship, especially when they first got married, * * * [o]n
one occasion it turned to something different.” She testified that in April 2013, she saw
Fields-Edmonds with a black eye that Robinson attributed to Hicks.
{¶5} Before the couple went out for their “date night,” Fields-Edmonds styled the
hair of Janeese Williams, a friend from church. Williams testified that she had a 7:00 p.m.
appointment at Fields-Edmonds’ home. Hicks was not home when Williams arrived.
Williams testified that when Hicks came home, he greeted the women and went upstairs.
While Fields-Edmonds was styling Williams’ hair in the living room, she and Williams
spoke about the issues Fields-Edmonds and Hicks were having with their marriage.
Williams testified that Hicks must have overheard their conversation because “he had like
an outburst” and yelled down from the upstairs bathroom, “I hear that s* * * you talking,
b * * * *. I don’t have to be here, I can leave if you want me to.” Williams stated that
although she could not see Hicks, he sounded angry and that she “had never heard him that
loud before.” Williams testified that after his initial “outburst,” she could hear him
upstairs “still talking about it,” telling Fields-Edmonds that “if she couldn’t forget what had
happened, leave that s * * * alone, you know, he could be gone in a second, you know, he
didn’t have to stay there.”
{¶6} When Williams’ hair was finished — sometime between 10:00 and 10:30 p.m.
— Hicks came downstairs. Williams testified that she asked Hicks if he was alright.
Hicks replied, “yeah, I’m cool.” Although he did not smile or laugh or “anything like
that,” Williams stated that she thought “he was okay.” She stated that she did not hear
any further discussions between Hicks and Fields-Edmonds.
{¶7} Williams then went outside to her car. Hicks’ pickup truck was the first
vehicle in the driveway and had been backed into the driveway. Williams’ car was the
second car in the driveway, and Fields-Edmonds’ car was behind hers, blocking her in.
Williams sat in her vehicle and waited for someone to move Fields-Edmonds’ vehicle so
she could leave. Hicks came out of the house first. He sat in Fields-Edmonds’ car for a
few minutes, then got out and went over to his truck. Williams testified that she saw
Hicks open the driver-side door and bend over, reaching for something under the
driver-side seat. When he stood up, Williams saw Hicks place something in his
waistband and cover it with his jacket. Williams did not see what it was. She testified
that, that night, she did not think it was a gun. However, after she learned that
Fields-Edmonds had been shot and killed, she “thought that’s probably what he got out of
the car * * * he probably was getting a gun out of the car when I seen him.”
{¶8} Shortly thereafter, Fields-Edmonds came out of the house, got into the car
with Hicks and backed out of the driveway so Williams could leave. Looking in her
rearview mirror, Williams saw Fields-Edmonds’ vehicle behind her vehicle as she traveled
down East123rd Street towards Union Avenue until Williams made a right turn at East
106th Street and Union Avenue to go home. Williams stated that she arrived home at
10:30 p.m. and that the drive from Fields-Edmonds’ house to Williams’ house was “not
even five minutes.”
{¶9} Detective Arthur Echols, one of the homicide detectives who investigated the
incident, testified that based on a contemporaneous Facebook posting by Fields-Edmonds,
he learned that Fields-Edmonds and Hicks had been at the Cloverleaf bowling alley
playing pool sometime later that evening. Patrol Officer Kenneth Allen, one of the
responding officers, testified that Maria Brown, who belonged to the same motorcycle
club as Fields-Edmonds, informed him that Fields-Edmonds and Hicks had been arguing
at the Cloverleaf. Brown testified at trial; however, she was not asked about any alleged
argument between the couple at the Cloverleaf. Moreover, it does not appear that Brown
was at Cloverleaf that evening. Brown testified that she “went out” at about 8:00 p.m.
and spent the evening at the Fly High and the Kitchen.
{¶10} Lisa Scott, a cousin of Fields-Edmonds by marriage, testified that sometime
between 11:00 p.m. and 12:30 a.m., she and a friend, Twilla Reynolds, went to the Wolf’s
Den, a bar located on the corner of East 83rd Street and Cedar Avenue in Cleveland.
Scott testified that when they entered the bar, she saw Fields-Edmonds sitting in “her
particular spot where she always sit” and had a brief, casual conversation with her. At
approximately 2:30 a.m. — “closing time” — as Scott and Reynolds were walking out the
back door of the bar to the parking lot, Scott saw Fields-Edmonds leaving the bar with a
man wearing dark jeans or slacks, a dark jacket and a cap. Scott later identified the man
she saw with Fields-Edmonds in a photo lineup and in court as Hicks. Scott testified that
as she walked past Fields-Edmonds, she told her twice to “be careful.” Scott could not
explain why she told Fields-Edmonds to “be careful.” She acknowledged it was not a
“normal thing” she would say to Fields-Edmonds; “it just came out of nowhere.”
Fields-Edmonds said, “okay, cuz” and got into her car. Scott testified that after
Fields-Edmonds got into her car, Hicks stood outside her driver-side door, talking to her.
{¶11} Reynolds offered similar testimony. She testified that she and Scott arrived
at the Wolf’s Den at around 11:00 p.m. or 11:30 p.m. on December 20, 2013, and that she
saw Fields-Edmonds dancing with a guy on the dance floor. Although Reynolds
recognized Fields-Edmonds because she “used to see her in the bar every now and then,”
they were not friends. Reynolds testified that she and Scott exited the bar at around 2:00
a.m. “right before the bar closed.” As they were walking toward Reynolds’ car in the
parking lot, Reynolds saw Fields-Edmonds talking to the man with whom she had been
dancing. Reynolds testified that Scott “hollered” at Fields-Edmonds and told her to “be
careful.”
{¶12} Scott and Reynolds got into Reynolds’ car and were preparing to leave the
Wolf’s Den when another of their friends, Malika, pulled up in her vehicle. Scott
testified that she and Reynolds got out of the car and went back inside the bar to talk to
Malika for “a good five minutes.” Reynolds similarly testified that she “hollered at”
Malika “for about five minutes.” As the women prepared to leave the bar a second time,
Scott noticed that Fields-Edmonds’ vehicle was gone.
{¶13} Reynolds turned out of the Wolf’s Den parking lot and drove down East 83rd
Street towards Woodland Avenue. As Reynolds’ vehicle approached the intersection of
East 83rd Street and Woodland Avenue, the women observed a car, later identified as
Fields-Edmonds’ vehicle, off to the right side of the road. Scott testified that she saw a
man wearing a beige jacket walk from the passenger side of the vehicle to the driver side
of the vehicle, hesitate and then go back to the passenger side of the vehicle. Scott
testified that as the man in the beige jacket was getting into the passenger side of the
vehicle, the car lights came on, the driver-side door opened and she saw what appeared to
be someone throwing a bag of garbage or clothes out of the car. Reynolds also saw what
had happened but observed that it was actually a body that had been pushed out of the
vehicle. Scott testified that she was unable to see the man’s face and could not say
whether it was the same man she had seen Fields-Edmonds speaking with as the women
left the Wolf’s Den. Neither Scott nor Reynolds heard any gunshots or other noises, saw
any flashes or saw anyone with a gun.
{¶14} Scott and Reynolds testified that after the body was thrown from the vehicle,
the vehicle went in reverse and then forward, running over the lower part of the person’s
legs as it drove down Buckeye Road. Scott and Reynolds got out of the car and ran over
to the person lying in the street. They recognized the woman as Fields-Edmonds.
Another man who arrived at the scene opened her shirt, and they saw that Fields-Edmonds
had been shot in the chest. Reynolds called 911. The 911 call was received at 2:36 a.m.
{¶15} Hicks’ cell phone records show that he was in the area of East 83rd Street
and Woodland Avenue around the time Fields-Edmonds was shot. Shortly after
Fields-Edmonds’ body was thrown from her vehicle, Hicks began making cell phone calls
to his father (2:35 a.m.), his sister (2:38 a.m.), his brother (2:52 a.m.) and several other
unidentified numbers.
{¶16} Cell phone records also indicate that Fields-Edmonds made a call to her best
friend, Kecia Johnson, at 2:33 a.m. Johnson testified that she missed the call and
immediately tried to call Fields-Edmonds back but got no answer. When Johnson
listened to the voice mail message Fields-Edmonds had left her, she heard “just the sound
of wind.”
{¶17} Dr. Krista Timm, a forensic pathologist and deputy medical examiner at the
Cuyahoga County Medical Examiner’s Office, performed an autopsy on Fields-Edmonds.
She testified that Fields-Edmonds died from two penetrating gunshot wounds — one to
her left chest and another to her left neck below her left ear. Dr. Timm’s examination
also revealed blunt impacts to Fields-Edmonds’ head and extremities, abrasions to her left
and right hands and contusions on her face, left hand and right leg.
{¶18} Dr. Timm testified that she observed “punctate abrasions” on
Fields-Edmonds’ skin in the area around the bullet wounds but could not state whether
these abrasions were the result of actual stippling, i.e., powder tatooing from hot gun
powder impacting the skin, or pseudo-stippling, i.e., where a bullet is shot through an
intermediary target and pieces of the target break off and travel with the bullet and impact
the skin. Therefore, she was unable to determine the distance from which the gun was
shot. She testified, however, that if there was no intermediary target between the muzzle
and the victim’s skin, the gunshot wounds would be consistent with an intermediate range
gunshot wound, i.e., a target-to-muzzle distance of a couple of inches to a couple of feet.
{¶19} Hicks’ father, Adrian McCall, also testified. At approximately 2:30 a.m.
on December 21, 2013, McCall was awakened by a call from Hicks. McCall testified
that when he answered the call, Hicks said, “daddy, my gun went off.” Hicks explained
that he had been drinking, that he and Fields-Edmonds had gotten into an argument and
that his gun went off, shooting Fields-Edmonds. Hicks did not provide any further
details. McCall testified that Hicks sounded a little intoxicated but was otherwise “just
his self.” He was not upset or excited and was not crying, yelling or screaming when he
confessed to his father that he had just shot Fields-Edmonds.
{¶20} Approximately 15 minutes later, sometime between 2:30 a.m. and 3:00 a.m.,
Hicks arrived at McCall’s house. McCall had assumed that Hicks had driven his truck
but later noticed Fields-Edmonds’ car parked across the street, several houses down.
McCall testified that when he arrived at his home, Hicks may have been a little intoxicated
but was not drunk. Hicks seemed to be calm, was not excited or scared and was not
crying or yelling. As during the phone call, he seemed like himself.
{¶21} Hicks told McCall that he had also called his brother, Adrian Bolling.
Shortly thereafter, Bolling arrived at McCall’s house and the three men sat on the couch in
McCall’s living room trying to determine exactly what had happened. At some point
during the conversation, Hicks pulled an “old-style type” revolver out of his pocket and
began taking the bullets out of it. McCall told Hicks that he could not have a gun in his
house and went into the kitchen and got a plastic bag into which he had Hicks drop the gun
and bullets, and McCall threw the bag out his kitchen window into the backyard. McCall
testified that he “was a little tore up” because he loved Fields-Edmonds. At the time,
although McCall knew Hicks had shot her, he did not know that Fields-Edmonds was
dead.
{¶22} McCall, Bolling and Hicks then left McCall’s house and drove in Bolling’s
car to Hicks’ house so that Hicks could check on his truck. As they turned the corner
towards Hicks’ house, they saw a police car down the street. Bolling turned the car
around and the three men headed back to McCall’s house. Five or ten minutes later,
Bolling and Hicks left the house a second time.
{¶23} Patrol Officer Kenneth Allen testified that, after the victim was identified as
Fields-Edmonds, it was determined that two cars were registered in her name and he went
to the address listed for the vehicles to see if he could obtain information from whomever
might be living there regarding what vehicle Fields-Edmonds might have been driving.
When he arrived at the residence, he noticed a white pickup truck in the driveway. He
testified that he knocked on the door of the house but that no one answered. When it was
later determined that the address listed for the vehicles was probably Fields-Edmonds’
residence address, Officer Allen went back to the house a second time. Once again, the
white truck was still in the driveway and no one answered the door. Officer Allen then
continued to patrol the Fourth District. As he passed the house a third time, the white
pickup truck was gone.
{¶24} McCall testified that two detectives and a uniformed officer came to his
house to speak with him later that morning. When the police arrived, they informed him
that Fields-Edmonds was dead. McCall testified that he was crying, that his “head wasn’t
right” and that he was too “tore up” and upset to say much of anything to the police. A
few hours later, after he “got [his] head together,” McCall called the detectives and told
them where they could find the gun. Several detectives then arrived at his home and
recovered a plastic bag containing a revolver (the “gun”), several live rounds and two
spent bullet casings from McCall’s backyard.
{¶25} In addition to his father, several other people spoke with Hicks in the early
morning hours following Fields-Edmonds’ murder. Fields-Edmonds’ “sister” Robinson
testified that Hicks appeared “[l]aid back and calm” when she first spoke with him around
5:00 a.m. She stated that in a subsequent call his demeanor changed; Hicks seemed
“panicky a little bit” and told Robinson he was “scared” because “everybody’s calling my
phone.” Hicks’ sister, Akhia Lash, testified that when Hicks arrived at her house around
6:30 a.m. that morning, he “seemed very upset,” was crying and “very emotional” and was
“a mess.” She testified that she had “never seen him like this before.”
{¶26} At approximately 7:10 a.m., Hicks picked up his brother and sister-in-law
and they drove in his white pickup truck back to Hicks’ house. When they arrived at the
home, police officers pulled Hicks out of the truck, handcuffed him and placed him in the
back of a police car. The clothing Hicks was wearing matched the description of the man
with whom Scott had seen Fields-Edmonds talking at the Wolf’s Den minutes before she
was shot. Hicks was then taken to the Cleveland Police Department’s Homicide Unit for
questioning. The homicide detectives’ interrogation of Hicks was recorded, and the state
played the videotape of the interrogation for the jury. Hicks was arrested a few hours
later, after detectives located Fields-Edmonds’ vehicle a few houses from McCall’s house.
{¶27} Numerous samples were taken from Fields-Edmonds’ vehicle and the
clothing Hicks was wearing the night Fields-Edmonds was killed and tested. Curtiss
Jones, supervisor of the Cuyahoga County Medical Examiner’s Office’s Trace Evidence
Department, conducted testing on the gun, bullets and spent casings recovered from
McCall’s backyard and the clothing Hicks was wearing at the time Fields-Edmonds was
killed. Jones testified that gunshot residue was found on samples taken from both cuffs
of Hicks’ jacket. He explained that one of the ways gunshot residue could have ended up
on the cuffs was if someone had discharged a firearm while wearing the jacket. He
indicated that the individual wearing the jacket could have also been in close proximity to
a firearm discharged by another individual or that gun powder residue could have been
transferred to the jacket from another source.
{¶28} With respect to testing performed for the presence of blood, Jones testified
that no blood was detected on the revolver, the bullets or the spent casings. Likewise, no
blood was detected on Hicks’ cap, shirt, jacket, jeans, belt or boots.
{¶29} Carey Baucher, a DNA analyst with the Cuyahoga County Medical
Examiner’s Office, testified that preliminary testing of a couple of samples taken from
Fields-Edmonds’ vehicle resulted in a “very weak positive” for blood, indicating that the
samples could contain the presence of blood. She further testified that, in her opinion,
the samples tested “didn’t appear to really look like blood” and that because no
confirmatory test was done to confirm the samples were blood, the “weak positives” could
have been the result of a cross-reaction, i.e., if the sample included some other
iron-containing compound. Other samples tested from the vehicle did not generate
presumptive positive results for blood. With respect to the DNA testing that was done,
Baucher testified that either no DNA was found or DNA was found in insufficient levels
to link any known DNA profiles to any of the samples taken from under Fields-Edmonds’
fingers, Fields-Edmonds’ vehicle, the gun, the bullets or the spent casings.
{¶30} Detective James Kooser, a firearms examiner with the Cleveland Police
Department, tested the gun recovered from McCall’s backyard. He testified that the
gun was a Harrington & Richardson .32 caliber Smith & Wesson long revolver. Based
on his analysis of the bullets recovered from Fields-Edmonds’ body, the spent casings and
various test fires, he concluded that the recovered shell casings and one of the bullets
recovered from Fields-Edmonds’ body were fired from the gun recovered from McCall’s
backyard. With respect to the second bullet recovered from Fields-Edmonds, he
concluded only that the bullet could have been fired from the gun. Kooser testified that
the gun could fire in both single and double action but that during his testing, it fired only
intermittently in double action.
{¶31} At the close of the state’s case, Hicks moved for acquittal pursuant to
Crim.R. 29(A). The trial court granted the motion as to Counts 2 and 3 of the indictment
–– aggravated murder in the course of a kidnapping under R.C. 2903.01(B) and
kidnapping under R.C. 2905.01(A)(3) — but denied the motion as to the remaining counts.
Hicks presented no witnesses in his defense. After the defense exhibits were admitted
into evidence, Hicks renewed his Crim.R. 29(A) motion as to the remaining counts.
{¶32} The jury found Hicks guilty of aggravated murder (Count 1), murder (Count
4) and felonious assault (Count 5) along with the associated firearm specifications. The
jury found Hicks not guilty of grand theft (Count 7). The court found Hicks guilty of
having weapons while under disability (Count 6), the associated firearm specifications, the
notice of prior conviction and the repeat violent offender specification.
{¶33} Hicks’ convictions for aggravated murder, murder and felonious assault
merged for sentencing and the state elected to proceed to sentencing on the aggravated
murder count. The one-year firearm specification also merged into the three-year firearm
specification. On the aggravated murder count, the trial court imposed a sentence of life
in prison without the possibility of parole plus three years on the firearm specification.
On the having weapons while under disability count, the trial court imposed a sentence of
36 months, to be served consecutively to the sentences on the aggravated murder count
and firearm specification. In all, Hicks received a prison term of life without the
possibility of parole and an additional six years.1 At the sentencing hearing, the trial court
found that Hicks’ prior criminal history warranted consecutive sentences and that
consecutive sentences were necessary to fulfill the purposes and principles of felony
1
The firearm specifications associated with the having weapons while under disability count
merged with the firearm specifications associated with the aggravated murder count.
sentencing and were not disproportionate to the seriousness of the defendant’s conduct and
the danger to the public. However, these findings were not incorporated into the trial
court’s sentencing journal entry.
{¶34} This appeal followed. Hicks has raised the following three assignments of
error for review:
ASSIGNMENT OF ERROR NO. 1:
The trial court erred by failing to grant a judgment of acquittal, pursuant to
Crim.R. 29(A), on the charge of aggravated murder, and thereafter entering a
judgment of conviction of that offense which was not supported by sufficient
evidence, in derogation of Defendant’s right to due process of law, as
protected by the Fourteenth Amendment to the United States Constitution.
ASSIGNMENT OF ERROR NO. 2:
The trial court erred by entering a judgment of conviction of aggravated
murder that was against the manifest weight of the evidence, in derogation
of Defendant’s right to due process of law, as protected by the Fourteenth
Amendment to the United States Constitution.
ASSIGNMENT OF ERROR NO. 3:
The trial court erred by failing to include in its journal entry its findings in
support of its imposition of consecutive sentences.
Law and Analysis
Sufficiency of the Evidence
{¶35} In his first assignment of error, Hicks challenges the sufficiency of the
evidence supporting his conviction for aggravated murder under R.C. 2903.01(A). Hicks
argues that the state failed to present sufficient evidence that he killed Fields-Edmonds
with “prior calculation and design” and that the trial court, therefore, erred in denying his
Crim.R. 29 motion for acquittal on that count.
{¶36} A Crim.R. 29(A) motion for acquittal tests the sufficiency of the evidence.
State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 13. Crim.R. 29 mandates
that the trial court issue a judgment of acquittal where the state’s evidence is insufficient to
sustain a conviction for an offense. State v. Taylor, 8th Dist. Cuyahoga No. 100315,
2014-Ohio-3134, ¶ 21. Accordingly, we review a trial court’s denial of a defendant’s
motion for acquittal using the same standard we apply when reviewing a
sufficiency-of-the-evidence claim. Id. at ¶ 21-23 (“Crim.R. 29(A) and sufficiency of
evidence review require the same analysis.”), citing Cleveland v. Pate, 8th Dist.
Cuyahoga No. 99321, 2013-Ohio-5571.
{¶37} A challenge to the sufficiency of the evidence supporting a conviction
requires a determination of whether the state has met its burden of production at trial.
State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v.
Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1977). When reviewing
sufficiency of the evidence, an appellate court must determine “‘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.
Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; see also
State v. Doumbas, 8th Dist. Cuyahoga No. 100777, 2015-Ohio-3026, ¶ 12 (“‘The test for
sufficiency of the evidence is whether after viewing the probative evidence and inferences
reasonably drawn therefrom in the light most favorable to the prosecution, any rational
trier of fact could have found all the essential elements of the offense beyond a reasonable
doubt.’”), quoting State v. Davis, 49 Ohio App.3d 109, 550 N.E.2d 966 (8th Dist.1988),
paragraph two of the syllabus. In a sufficiency inquiry, an appellate court does not assess
whether the state’s evidence is to be believed but whether, if believed, the evidence
admitted at trial supported the conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682,
2009-Ohio-3375, ¶ 25, citing Thompkins at 387; Jenks at paragraph two of the syllabus.
{¶38} Hicks was convicted of aggravated murder under R.C. 2903.01(A), which
provides, in relevant part: “No person shall purposely, and with prior calculation and
design, cause the death of another * * * .”
{¶39} “‘‘‘[P]rior calculation”and design * * * indicate[s] studied care in planning
or analyzing the means of the crime as well as a scheme encompassing the death of the
victim.’” State v. Taylor, 78 Ohio St.3d 15, 19, 676 N.E.2d 82 (1997), quoting 1973
Legislative Service Commission Comment to R.C. 2903.01; State v. Walker, 8th Dist.
Cuyahoga No. 99998, 2014-Ohio-1827, 10 N.E.3d 200, ¶ 16. The phrase is not defined
in the Ohio Revised Code; however, the Ohio Supreme Court has interpreted it “to require
evidence of ‘more than [a] few moments of deliberation’” and “‘a scheme designed to
implement the calculated decision to kill.’” State v. Conway, 108 Ohio St.3d 214,
2006-Ohio-791, 842 N.E.2d 996, ¶ 38, quoting State v. Cotton, 56 Ohio St.2d 8, 381
N.E.2d 190 (1978), paragraph one of the syllabus. In other words, “[i]nstantaneous
deliberation is not sufficient to constitute ‘prior calculation and design.’” Cotton at
paragraph two of the syllabus. “‘[N]either the degree of care nor the length of time the
offender takes to ponder the crime beforehand’” is a “‘critical factor’” in and of itself so
long as it amounts to more than “‘momentary deliberation.’” State v. D’Ambrosio, 67
Ohio St.3d 185, 196, 616 N.E.2d 909 (1993), quoting the 1973 Legislative Service
Commission Comment to R.C. 2903.01. Although “‘momentary deliberation’ is
insufficient,” D’Ambrosio at 196, “prior calculation and design can be found even when
the killer quickly conceived and executed the plan to kill within a few minutes.” State v.
Coley, 93 Ohio St.3d 253, 264, 754 N.E.2d 1129 (2001).
{¶40} The state can prove “prior calculation and design” from the circumstances
surrounding a murder in several ways, including: (1) “evidence of a preconceived plan
leading up to the murder”; (2) “evidence of the [defendant’s] encounter with the victim,
including evidence necessary to infer that the defendant had a preconceived notion to kill
regardless of how the [events] unfolded” or (3) “evidence that the murder was executed in
such a manner that circumstantially proved the defendant had a preconceived plan to kill,”
such as where the victim is killed in a cold-blooded, execution-style manner. State v.
Orr, 8th Dist. Cuyahoga No. 100841, 2014-Ohio-4680, ¶ 75, citing State v. Dunford, 11th
Dist. Ashtabula No. 2009-A-0027, 2010-Ohio-1272, ¶ 53; State v. Trewartha, 165 Ohio
App.3d 91, 2005-Ohio-5697, 844 N.E.2d 1218 (10th Dist.); State v. Hough, 8th Dist.
Cuyahoga No. 91691, 2010-Ohio-2770, ¶ 19 (“[I]f the victim is killed in a cold-blooded,
execution-style manner, the killing bespeaks aforethought, and a jury may infer prior
calculation and design.”).
{¶41} Whether a defendant acted with prior calculation and design is determined on
a case-by-case basis, following an analysis of the specific facts and evidence presented at
trial. Orr at ¶ 77; State v. Jones, 91 Ohio St.3d 335, 345, 744 N.E.2d 1163 (2001); see
also State v. Braden, 98 Ohio St.3d 354, 364, 2003-Ohio-1325, 785 N.E.2d 439, ¶ 61
(“‘Where evidence adduced at trial reveals the presence of sufficient time and opportunity
for the planning of an act of homicide to constitute prior calculation, and the
circumstances surrounding the homicide show a scheme designed to implement the
calculated decision to kill, a finding by the trier of fact of prior calculation and design is
justified.”’), quoting Cotton at paragraph three of the syllabus. There is no “bright-line
test” for determining the presence or absence of prior calculation and design; however, the
Ohio Supreme Court has identified several factors to be weighed along with the totality of
the circumstances surrounding the murder in determining the existence of prior calculation
and design, including: whether the defendant and the victim knew each other and, if so,
whether the relationship was strained; whether there was thought or preparation in
choosing the murder weapon or murder site; and whether the act was “drawn out” or “an
almost instantaneous eruption of events.” Taylor, citing State v. Jenkins, 48 Ohio App.2d
99, 102, 355 N.E.2d 825 (8th Dist.1976); see also State v. Woods, 8th Dist. Cuyahoga No.
99630, 2014-Ohio-1722, ¶ 25.
{¶42} In this case, considering these factors along with the totality of the
circumstances surrounding Fields-Edmonds’ murder, we find that, after construing the
evidence presented at trial (including all reasonable inferences that could be drawn from
that evidence) in the light most favorable to the state, there was insufficient evidence to
establish beyond a reasonable doubt that Hicks acted with prior calculation and design in
murdering Fields-Edmonds.
{¶43} The state argues that although “no one witnessed the murder itself,” there
was nevertheless “substantial circumstantial evidence” supporting the jury’s finding that
Hicks acted with prior calculation and design in murdering Fields-Edmonds. We
disagree.
{¶44} The state can use either direct evidence or circumstantial evidence to prove
the elements of a crime. See, e.g., State v. Dura, 58 Ohio St.3d 86, 92, 568 N.E.2d 674(1991); Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, at paragraph one of the syllabus; State
v. Bokeno, 12th Dist. Butler No. CA2011-03-044, 2012-Ohio-4218, ¶ 12. Circumstantial
and direct evidence are of equal probative value. Jenks at paragraph one of the syllabus.
Circumstantial evidence is “proof of facts or circumstances by direct evidence from which
the trier of fact may reasonably infer other related or connected facts that naturally or
logically follow.” State v. Seals, 8th Dist. Cuyahoga No. 101081, 2015-Ohio-517, ¶ 32,
citing State v. Beynum, 8th Dist. Cuyahoga No. 69206, 1996 Ohio App. LEXIS 2143 (May
23, 1996); see also State v. Hartman, 8th Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶
37 (“‘Circumstantial evidence is the proof of facts by direct evidence from which the trier
of fact may infer or derive by reasoning other facts in accordance with the common
experience of mankind.’”), quoting State v. Griesheimer, 10th Dist. Franklin No.
05AP-1039, 2007-Ohio-837.
{¶45} However, not all inferences are reasonable and in establishing facts by means
of circumstantial evidence, one inference cannot be based solely on another. Although a
trier of fact cannot draw an inference based solely upon another inference, an inference
that is based in part upon another inference and in part upon additional facts is a “‘parallel
inference’” and, “if reasonable, may be indulged in.’” State v. Cowans, 87 Ohio St.3d
68, 78, 717 N.E.2d 298 (1999), quoting Hurt v. Charles J. Rogers Transp. Co., 164 Ohio
St. 329, 130 N.E.2d 820 (1955), paragraph two of the syllabus. “‘[C]ircumstantial
evidence is sufficient to sustain a conviction if that evidence would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.’” State v. McKnight, 107 Ohio
St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 75, quoting State v. Heinish, 50 Ohio St.3d
231, 238, 553 N.E.2d 1026 (1990).
{¶46} As to the first factor, there is no dispute that Hicks and Fields-Edmonds
knew each other and that their relationship had been strained. The state presented
evidence that Hicks had returned home after spending three weeks away from the marital
residence where he enjoyed “female company”— a fact which upset Fields-Edmonds.
During his recorded interview with homicide detectives, Hicks admitted that his
relationship with Fields-Edmonds was strained due to issues Hicks had with
Fields-Edmonds’ children and purported mutual acts of infidelity. Janeese Williams
testified that the evening prior to Fields-Edmonds’ murder, Hicks had an angry “outburst”
when he overheard his wife talking about their marital problems with Williams. Hicks
was seen talking to Fields-Edmonds in the Wolf’s Den parking lot minutes before she was
shot; however, there is no evidence in the record as to Hicks or Fields-Edmonds’
demeanor or whether they were arguing at that time. Neither Scott nor Reynolds were
asked about this at trial. Although Scott testified that she twice told Fields-Edmonds to
“be careful” as she was leaving the Wolf’s Den — leading Reynolds to assume the couple
had been arguing — Scott could not explain what led her to say this to Fields-Edmonds.
{¶47} With respect to the second factor — whether there was thought or
preparation in choosing the murder weapon or murder site — the state argues that (1)
Williams’ testimony that, four hours before Fields-Edmonds’ death, she saw Hicks grab
what she, in hindsight, believes was a gun from his truck and place it in his waistband, and
(2) the fact that right before Fields-Edmonds was murdered, Hicks “would have pulled
[the gun] out from wherever he was concealing it” shows that Hicks gave thought to what
he was doing and prepared to use his gun to murder Fields-Edmonds. The state further
contends that the fact that (1) neither Scott nor Reynolds heard any gunshots or saw any
flashes and (2) no one else came forward as a witness to the “actual murder” evidences
thought and preparation in the selection of the murder site, i.e., that Hicks murdered
Fields-Edmonds at a time and place where he knew there would be no witnesses to the
murder.
{¶48} Even if we were to infer based on Williams’ speculative testimony that
Hicks retrieved a gun from his vehicle before he went out with Fields-Edmonds that
evening, there is no evidence to suggest that, at the time he removed it from his vehicle (or
at any other time that evening prior to shooting her) Hicks intended to use the gun to kill
Fields-Edmonds. Although the record reflects that Hicks had threatened to leave
Fields-Edmonds again if she continued bringing up the issue of his infidelity, there was no
evidence that he had threatened her life or had otherwise threatened her with physical
harm. “[M]ere possession of a weapon is not, without more, evidence of prior
calculation and design.” Hill, 2013-Ohio-578, at ¶ 23, citing State v. Davis, 8 Ohio
App.3d 205, 207, 456 N.E.2d 1256 (8th Dist.1982) (“The mere fact that defendant was
carrying a gun on this occasion but was not carrying a gun on some earlier visit to a
different bar is not sufficient to demonstrate a prior calculation and design to kill someone
at this bar.”); State v. Johnson, 10th Dist. Franklin No. 97APA03-315, 1998 Ohio App.
LEXIS 2069, *16-17 (May 5, 1998) (“That defendant had a gun with him * * * is not, by
itself, evidence of a prior calculation and design, given the testimony offered by
defendant's girlfriend that he ‘sort of frequently carried a weapon.’”); see also Jenkins, 48
Ohio App.2d 99, 103, 355 N.E.2d 825 (“That the defendant went to his car, removed a
shotgun, and fired a shot in the trunk of the car and two shots at the victim is not, standing
alone, evidence of prior calculation and design.”). This case is distinguishable from
cases in which prior and calculation design has been found where the defendant obtains a
weapon and kills a victim after threatening him or her. See, e.g., State v. Maxwell, 139
Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 151 (“a defendant’s threat to obtain a
weapon and kill his victim and his later actions carrying out that threat are enough to prove
prior calculation and design”), citing Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842
N.E.2d 996, at ¶ 45, and State v. Sowell, 39 Ohio St.3d 322, 333, 530 N.E.2d 1294 (1988).
{¶49} Likewise, the fact that “no one else came forward as a witness” to the murder
is not evidence that Hicks acted with prior calculation and design. Even if we were to
infer, based on the fact that “no one else came forward,” that no one witnessed the “actual
murder” that was simply happenstance. Scott and Reynolds saw Hicks and
Fields-Edmonds in the Wolf’s Den parking lot at approximately 2:30 a.m.
Fields-Edmonds was next seen, approximately five minutes later, when her body was
thrown out of her vehicle and into the street just before the intersection of East 83rd Street
and Woodland Avenue. Although there is no evidence as to exactly where the murder
took place, this sequence of events indicates that Fields-Edmonds must have been shot
either in the Wolf’s Den parking lot or somewhere near, or along the way to, the
intersection of East 83rd Street and Woodland Avenue. The record reflects that there
were a number of people in the Wolf’s Den parking lot when Hicks and Fields-Edmonds
were leaving the bar at closing time. The record further reflects that there were other
vehicles at the intersection of East 83rd Street and Woodland Avenue at the same time as
Fields-Edmonds’ vehicle, including a couple of vehicles that had just left the Wolf’s Den.
Individuals in any one of those vehicles could have potentially witnessed the murder and,
in fact, at least two of them witnessed Fields-Edmonds’ body being thrown out of her
vehicle.
{¶50} Common sense dictates that if Hicks had given thought or preparation to
choosing the murder site, he would have determined to kill Fields-Edmonds at a time and
place where there were no potential witnesses connecting him to the crime and would have
conceived of some plan for leaving the scene, disposing of Fields-Edmonds’ body and
disposing of the murder weapon besides throwing her body out of her car and into the
street, driving off in her car and bringing the car and the gun he used to kill
Fields-Edmonds to his father’s house. Based on the evidence in the record, there is
nothing about the location of the murder that reasonably supports the inference that Hicks
exercised thought and preparation in his selection of the murder site.
{¶51} With respect to whether the act was “drawn out” or “an almost spontaneous
eruption of events,” the state points to (1) evidence of the location of the gunshot wounds,
i.e., that they were “up close and personal,” (2) the fact that Hicks shot Fields-Edmonds
twice, once in her left chest and once in the neck under her left ear, and (3) Hicks’
demeanor following the killing as evidence that Hicks acted with prior calculation and
design.
{¶52} The state first argues that because gunshot residue was found on both cuffs
of Hicks’ jacket, the jury could reasonably infer that Hicks “did not pull out the gun
quickly and fire the shot with one hand” but rather “pulled out the gun and held it with two
hands, making sure his aim was accurate.” The state further argues, based on the fact he
shot her twice, that Hicks “would have either * * * shot [Fields-Edmonds] in the chest or
neck first, moved the gun, reposition[ed] himself, [got] himself ready, and then fire[d] the
other shot.” This, it contends, establishes prior calculation and design. Once again,
we disagree.
{¶53} The record reflects that approximately five or six minutes elapsed between
the time Hicks was seen talking to Fields-Edmonds in the Wolf’s Den parking lot and the
time her body was thrown from the vehicle at the intersection of East 83rd Street and
Woodland Avenue. This is not a case in which the murder was carried out over a
protracted period of time. Although courts have recognized that “prior calculation and
design can be found even when the killer quickly conceived and executed the plan to kill
within a few minutes,” Coley, 93 Ohio St.3d at 264, 754 N.E.2d 1129, in most such cases
in which prior calculation or design has been found to exist beyond a reasonable doubt,
there is evidence as to when, where and how the murder occurred. See, e.g., Conway,
108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996 (where defendant upon hearing that
his brother had been stabbed, retrieved a gun from his car and began shooting at the
alleged perpetrator, his actions could evidence a plan to kill; “[a]lthough they took only a
few minutes, [the defendant’s] actions went beyond a momentary impulse and show that
he was determined to complete a specific course of action”); Taylor, 78 Ohio St.3d at
20-23, 676 N.E.2d 82 (sufficient evidence existed to support finding that defendant acted
with prior calculation and design in shooting victim two to three minutes after an argument
in a bar where defendant and victim were rivals for girlfriend’s affection, defendant
ordered girlfriend out of the bar prior to shooting, defendant’s companion positioned
himself near door by victim, and defendant fired several additional shots after victim was
already wounded and trying to crawl away). Here, by contrast, there is no evidence that
establishes where, or under what circumstances, Fields-Edmonds was killed.
{¶54} Given the limited information in the record regarding the killing, the two
most likely scenarios are that: (1) Hicks shot Fields-Edmonds while he was standing
outside the driver-side door and she was seated in the vehicle, or (2) he killed her while the
two were both inside the vehicle somewhere between the Wolf’s Den parking lot and the
intersection of East 83rd Street and Woodland Avenue. No “definitive blood” was found
on any of the samples law enforcement took from Fields-Edmonds’ vehicle, the gun, the
bullet casings or Hicks’ clothing that might have assisted in making the determination of
where Fields-Edmonds was killed. Under either scenario — i.e., if the murder occurred
inside the vehicle or while Hicks was standing next to the vehicle — the shots would have
necessarily been fired within a few inches or a few feet of Fields-Edmonds irrespective of
whether the killing was the result of prior calculation and design, as the state contends, or
in the “heat of the moment,” as Hicks contends.
{¶55} Although it is undisputed that two shots were fired, striking
Fields-Edmonds in the left side of her chest and neck, there is no evidence in the record as
to whether shots were fired over several minutes or in rapid succession. Detective
Kooser testified that the gun could be fired in either single or double action and that in
double action, the weapon could be fired “as fast as you can pull the trigger.” Without
knowing where, or under what circumstances, Fields-Edmonds was shot or what happened
after the first shot was fired, it is impossible to know whether or to what extent Hicks may
have had to change positions in order to shoot Fields-Edmonds a second time. Likewise,
it is impossible to know whether the shooting was impulsive or whether Hicks had an
opportunity for reflection or to alter his course of conduct prior to taking his second shot.
Compare, e.g., State v. Conner, 8th Dist. Cuyahoga No. 99557, 2014-Ohio-601, ¶ 58
(evidence that defendant made a deliberate decision to fire two rounds of shots and
strategically positioned himself to carry out his plan was sufficient to establish that
defendant acted with prior calculation and design where officer testified that he saw
defendant point a gun in the direction of his zone car, shoot two to three times in the
direction of the car, pivot and move from facing the officer to his right and then shooting
another three to four shots) with Hill, 2013-Ohio-578, at ¶ 27 (fact that defendant shot
victim three times, including once when the victim was down on his knees did not indicate
prior calculation and design where the shots were fired in succession, “indicating that the
act was one continuous course of events”; distinguishing cases finding prior calculation
and design “where shots were fired initially and then again several minutes later or where
the defendant pursued and then shot an injured victim who was trying to escape”).
Accordingly, based on the limited information in the record regarding the moments
leading up to Fields-Edmonds’ murder, it cannot be reasonably inferred simply from the
fact that Hicks shot Fields-Edmonds twice or the location of the gunshot wounds that
Hicks acted with prior calculation and design.
{¶56} The state also makes much of the fact that Hicks did not show remorse or
sorrow when witnesses saw or spoke with him several minutes to several hours following
the killing. The state argues that this behavior is further evidence that Hicks had a prior
calculation and design to kill Fields-Edmonds. Such testimony, without more, cannot
support a finding that Hicks acted with prior calculation and design. The record also
reflects that at the time of or immediately after the murder, i.e., beginning at 2:35 a.m.,
Hicks began making calls to his father, sister, brother and others, which, as witnesses
explained, was unusual for him. Further, when Hicks saw his sister later that morning,
she testified that Hicks was “upset,” “very emotional,” crying and “a mess.”
{¶57} Considering the totality of the circumstances surrounding Fields-Edmonds’
murder, we conclude that the circumstantial evidence offered by the state was insufficient
for the jury to find, beyond a reasonable doubt, that Hicks acted with prior calculation and
design. Proof beyond a reasonable doubt cannot be based on conjecture, speculation or
an assessment of the likelihood of various possibilities. State v. Brown, 8th Dist.
Cuyahoga No. 98540, 2013-Ohio-1982, ¶ 31 (“It is well established that ‘[c]riminal
convictions cannot rest upon mere speculation; the state must establish the guilt of the
accused by proof beyond a reasonable doubt.’”), quoting State v. Haynes, 25 Ohio St.2d
264, 270, 267 N.E.2d 787 (1971); State v. Chessman, 2d Dist. Montgomery No. 24451,
2012-Ohio-1427, ¶ 20 (fact that a rational trier of fact could speculate that it was
defendant’s purpose or specific intent to deprive the owner of property she and her brother
took “does not satisfy the reasonable doubt standard”); State v. Miller, 11th Dist. Lake No.
2002-L-162, 2004-Ohio-6342, ¶ 50 (“speculative evidence does not support a conviction
beyond a reasonable doubt”). Proof beyond a reasonable doubt is not a mere probability
or even a strong probability. It requires a fact finder to be “firmly convinced” of the truth
of a fact, i.e., “proof of such a character that an ordinary person would be willing to rely
and act upon it in the most important of [his or her] own affairs.” R.C. 2901.05(E); State
v. Givens, 2d Dist. Clark No. 2005-CA-42, 2005-Ohio-6670, ¶ 11 (“Proof beyond a
reasonable doubt is a very high degree of proof such that the jurors must be ‘firmly
convinced’ of the proof of the charge.”). Such proof was not present here.
{¶58} Following a careful review of the record and viewing the evidence in the
light most favorable to the state, we conclude that the evidence does not support a finding
of prior calculation and design beyond a reasonable doubt. Based upon the evidence
presented, too much is unknown about the moments leading up to and the circumstances
surrounding Fields-Edmonds’ death for the jury to do anything more than speculate as to
whether Hicks “planned a scheme to implement a calculated decision to kill”
Fields-Edmonds, Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, at ¶ 38,
or whether her murder was the “result of an almost spontaneous eruption of events”
without studied consideration, Walker, 2014-Ohio-1827, 10 N.E.3d 200, at ¶ 19.
Accordingly, there was insufficient evidence to support Hicks’ conviction for aggravated
murder, and the trial court should have granted his motion for acquittal on the aggravated
murder count. Hicks’ first assignment of error is sustained. We, therefore, reverse
Hicks’ conviction for aggravated murder under R.C. 2903.01(A), vacate his sentence on
the aggravated murder count and remand the case for resentencing.
{¶59} Given our ruling on Hicks’ first assignment of error, Hicks’ second and third
assignments of error are moot.
{¶60} Conviction for aggravated murder reversed; sentence for aggravated
murder vacated; case remanded for resentencing.
It is ordered that appellant recover from appellee the 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.
______________________________________________
EILEEN A. GALLAGHER, JUDGE
LARRY A. JONES, SR., J., CONCURS;
FRANK D. CELEBREZZE, JR., A.J., CONCURS IN JUDGMENT ONLY