State v. Hill
2016 Ohio 5205
Ohio Ct. App.2016Background
- Brian Hill shot multiple times at a red pickup; passenger Patricia Pallenberg was killed; driver unharmed. Hill rode with his cousin Terry Nichols in Nichols' truck at the time.
- Nichols testified he told Hill to "shoot the pistol at the truck to scare him" (referring to another man, Broomfield); Hill fired and the passenger died. Hill did not testify.
- Hill was convicted of aggravated murder, murder (lesser included), attempted murder, felonious assault, tampering with evidence (he hid the gun), and having a weapon under disability; a repeat violent-offender specification applied.
- On appeal Hill raised four principal errors: (1) sufficiency/manifest weight (including challenge to aggravated murder and a flight jury instruction), (2) improper admission/authentication of four attic photographs, (3) admission of two bags of suspected drugs found at Hill’s home, and (4) denial of cross-examination about Nichols’ old conviction.
- The court vacated the aggravated-murder conviction (insufficient evidence of prior calculation and design) but affirmed murder (lesser included) and all other convictions and sentences; case remanded for resentencing on murder.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency/manifest weight of aggravated murder (prior calculation & design) | State: evidence of planning/intent supports aggravated murder; transferred intent may apply | Hill: no prior calculation and design; shooting was precipitated by Nichols' urging; intent not proved beyond a reasonable doubt | Majority: aggravated murder vacated for lack of prior calculation and design; murder conviction sustained as lesser included; two judges concurred (one dissented) |
| Jury instruction re: flight | State: facts supported flight instruction (post-shooting conduct after seeing police helicopter) | Hill: insufficient evidence to justify flight instruction | Held: flight instruction proper; no abuse of discretion |
| Authentication/admissibility of four attic photographs (Evid.R. 901) | State: photos properly admitted and cumulative among 100+ photos | Hill: photos not properly authenticated | Held: admission harmless; no reversible error; assignment overruled |
| Admission of two bags of suspected drugs from Hill’s home | State: evidence admitted to show thorough investigation; trial counsel initially waived objection | Hill: irrelevant, prejudicial, improperly admitted | Held: admission not reversible error given handling at trial; assignment overruled |
| Cross-examination of Nichols about >20-year-old gross sexual imposition conviction (Crim.R. 609/Evid.R.609) | State: conviction inadmissible under rules; judge properly excluded | Hill: prior conviction bore on Nichols’ motive to accept plea and credibility | Held: trial court properly excluded impeachment under Evid.R./Crim.R.609; assignment overruled |
Key Cases Cited
- State v. Sowell, 39 Ohio St.3d 322 (1988) (doctrine of transferred intent can extend prior calculation and design to an unintended victim)
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (standard for sufficiency vs. manifest weight review)
- State v. Coley, 93 Ohio St.3d 253 (2001) (prior calculation and design may be found even where planning and execution occur within a short time)
- State v. Solomon, 66 Ohio St.2d 214 (1981) (scheme to implement a calculated decision to kill can support aggravated murder even if actual victim differs from intended target)