State v. Hill

[Cite as State v. Hill, 2023-Ohio-1556.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220330
TRIAL NO. 22CRB-5036
Plaintiff-Appellee, :
vs. :
O P I N I O N.
MIESHA HILL , :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 10, 2023
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,
and Connor E. Wood, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Defendant-appellant Miesha Hill appeals her misdemeanor assault
conviction. For the reasons set forth below, we affirm the judgment of the trial court.
Background
{¶2} The state charged Hill with misdemeanor assault after an altercation
between Hill and her former neighbor, Tiniesh Wales. According to Wales’s testimony
at trial, on the day of the incident, Wales’s acquaintance, Brigette Green, asked Wales
to come to her home to help her with paperwork for her apartment. When Wales
arrived at Green’s home, she saw Hill. Hill and Wales had a history of problems, and
Wales believed that she had been set up. Wales and Hill started arguing, and Wales
proceeded to leave Green’s home. According to Wales, Hill grabbed Wales by the hair.
The two began tussling, and Hill kept swinging at Wales. Hill then grabbed an object
and hit Wales above the eye. Because Wales had her head down and covered, she did
not see the object. Wales started bleeding, and once Hill saw blood, she quit hitting
her. Wales then left Green’s home and called the police.
{¶3} An officer responded to Wales’s call. The officer testified that Wales had
a bleeding laceration above her left eye. Wales did not explain to the officer exactly
where the incident had happened, so he did not go to Green’s residence, but he did
drive down the street, and no one was waiting outside.
{¶4} In Hill’s defense, she called Green to testify. Green answered counsel’s
questions regarding her name, address, and her relationship with Hill, but then Green
invoked her Fifth Amendment right not to incriminate herself when counsel asked
whether she knew Wales, and whether she was at home on the day of the incident.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} The defense then called Hill’s friend, Marquetta Hunter, to testify.
Hunter claimed that, on the day in question, she and Hill drove up to Green’s residence
to get a cigarette, and so that Hill could retrieve her mail. Hunter went to Green’s
home and stood outside while Hill went to check her mailbox. Hunter saw Wales
following Hill, and she saw a shiny object in Wales’s hand that she later learned was a
knife. Hunter saw Wales approach Hill and swing at her. The two fought, but then
Wales left.
{¶6} Hill’s boyfriend, Robert Coker, also testified on behalf of Hill. Coker
testified that he drove with Hill to Green’s home on the day in question. Coker was
standing outside Green’s home, and Hill went to check her mailbox. Coker then saw
Wales following Hill. When the pair got closer to Green’s home, Coker saw Wales
holding a black-handled knife. Wales tried to hit Hill with the knife, but Hill punched
Wales instead. The two fought, and Wales left.
{¶7} Finally, Hill testified in her own defense. Hill testified that she and
Wales had been friends, but their relationship deteriorated. On the day in question,
Hill went to her mailbox, and Wales approached her. Wales tried to start a fight with
her, but Hill walked away towards Green’s home. Hill heard yelling, and she turned
around and saw Wales coming at her with a knife. Hill was able to get Wales to drop
the knife, but Wales started swinging at her. After the fight, Wales left, and Hill stayed
at Green’s home waiting for the police to arrive.
{¶8} The trial court found Hill guilty of assault and sentenced her to one year
of community control. Hill appeals.
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Green Invokes the Fifth Amendment Privilege
{¶9} In her first assignment of error, Hill argues that the trial court erred in
allowing Green to invoke the Fifth Amendment privilege against self-incrimination.
{¶10} The Fifth Amendment to the United States Constitution and Article I,
Section 10 of the Ohio Constitution declare that no person shall be compelled in any
criminal case to be a witness against himself.
{¶11} A witness asserting the Fifth Amendment right against self-
incrimination must assert “that he or she is faced with some authentic, objectively
reasonable danger of incrimination.” State v. Arnold, 147 Ohio St.3d 138, 2016-Ohio-
1595, 62 N.E.3d 153, ¶ 44, citing Hoffman v. United States, 341 U.S. 479, 486-487, 71
S.Ct. 814, 95 L.Ed. 1118 (1951). A reasonable danger of incrimination exists where a
witness’s answers “may reasonably have a tendency either to incriminate the witness
or to furnish proof of an element or link in the chain of evidence necessary to convict
the witness of a crime.” Id. at ¶ 45. The Fifth Amendment “can be asserted in any
proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory;
and it protects against any disclosures which the witness reasonably believes could be
used in a criminal prosecution or could lead to other evidence that might be so used.”
Kastigar v. United States, 406 U.S. 441, 444-445, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).
{¶12} “Generally, a witness must assert the Fifth Amendment privilege against
self-incrimination on a question-by-question basis.” State v. Smith, 2017-Ohio-7740,
97 N.E.3d 1068, ¶ 20 (10th Dist.), citing Vega v. Tivurcio, 10th Dist. Franklin No.
14AP-327, 2014-Ohio-4588, ¶ 12. The trial court has a duty to inquire into the
witness’s justification for asserting the privilege. Arnold at ¶ 46.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} Hill argues that the trial court erred in failing to inquire as to the basis
of Green’s asserted Fifth Amendment privilege. Because Hill did not object to the trial
court’s inquiry below, this court reviews for plain error. See Crim.R. 52(B).
{¶14} Wales testified that Hill’s assault occurred at Green’s home. During
Wales’s cross-examination, defense counsel questioned Wales about Green’s
nickname as “the candy lady,” and whether she sells cigarettes and other items out of
her home. Wales testified in the affirmative. Defense counsel also repeatedly referred
to the “candy lady” during the cross-examination of the investigating police officer.
{¶15} Following the state’s case-in-chief, defense counsel called Green to
testify. The trial court questioned whether Green wanted an attorney to advise her
given Wales’s testimony insinuating that Green deals drugs out of her home. Green
responded that she wanted an attorney. The trial proceeded as to the other defense
witnesses while the trial court called an independent attorney to advise Green. Green
consulted with counsel and then returned to the witness stand. Green answered two
questions regarding her relationship with Hill, but then she invoked her Fifth
Amendment right not to testify regarding whether she knew the victim, or whether she
was at home on the day of the incident. Defense counsel chose not to ask any more
questions and did not object. The trial then proceeded with Hill’s testimony.
{¶16} Even if the trial court erred in allowing Green to assert her right not to
testify, Hill has not demonstrated plain error on the part of the trial court on this
record. Defense attorney’s reference to Green as the “candy lady” raised the Fifth
Amendment concerns in the first place. When Green invoked her Fifth Amendment
privilege in refusing to answer defense counsel’s questions, Hill did not object to
Green’s refusal to answer the questions. Moreover, Green was a defense witness, and
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OHIO FIRST DISTRICT COURT OF APPEALS
Hill’s attorney did not proffer any further questions. Therefore, this court has no way
to determine the relevance of the questions and whether any answers to them would
have been subject to the Fifth Amendment.
{¶17} We overrule Hill’s first assignment of error.
Sufficiency and Manifest Weight of the Evidence
{¶18} In her second assignment of error, Hill argues that her assault
conviction is contrary to law.
{¶19} When considering a challenge to the sufficiency of the evidence, an
appellate court determines whether, after viewing the evidence in a light most
favorable to the prosecution, a rationale trier of fact could have found that the state
proved all the elements of the offense beyond a reasonable doubt. State v. Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. When
considering a challenge to the weight of the evidence, an appellate court must review
the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created a manifest miscarriage of
justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶20} The trial court found Hill guilty of misdemeanor assault in violation of
R.C. 2903.13(A), which provides that “[n]o person shall knowingly cause or attempt
to cause physical harm to another * * *.” According to Hill, the trial court erred
because Hill acted in self-defense to protect herself from Wales as Wales swung a knife
at her.
{¶21} The trial court specifically rejected Hill’s version of the facts in finding
her guilty. The trial court found that the stories of Hunter, Coker, and Hill were
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OHIO FIRST DISTRICT COURT OF APPEALS
inconsistent, particularly in that all of them claimed to be driving the same car. The
trial court also found portions of Hill’s testimony incredible, for example, the trial
court did not find it plausible that Hill would have turned her back to Wales and
started walking away if Wales had been speaking to her in a threatening manner. The
trial court also found Hunter’s and Coker’s testimony not credible in that the two
testified that they saw Wales approach Hill with a knife, but neither intervened in any
way. The trial court was in the best position to determine the credibility of the
witnesses. See State v. Landrum, 1st Dist. Hamilton No. C-150718, 2016-Ohio-5666.
{¶22} The evidence brought forward by the state showed that Hill attacked
Wales and hit her with an object, causing her eye to bleed. Wales called the police, and
the responding officer testified that the cut on Wales’s eye was “bleeding pretty good.”
None of the defense witnesses waited for the police or called police, despite their story
that Wales had attempted to attack Hill with a knife. Viewing the evidence in the light
most favorable to the state, the trial court could have found that Hill committed
assault, and the trial court did not lose its way and create a manifest miscarriage of
justice in finding Hill guilty. See Jenks, 61 Ohio St.3d at 273, 574 N.E.2d 492;
Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541.
{¶23} We overrule Hill’s second assignment of error.
Conclusion
{¶24} Having overruled Hill’s assignments of error, we affirm the judgment of
the trial court.
Judgment affirmed.
BERGERON, P.J., and BOCK, J., concur.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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