State v. HillState v. Hill
Ron O‘Brien, Prosecuting Attorney, and John H. Cousins IV, for appellee.
Robert C. Bannerman, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
FRENCH, J.
{¶1} Defendant-appellant, Mark A. Hill (“Hill“), appeals his conviction for felonious assault in the Franklin County Court of Common Pleas. For the following reasons, we affirm.
{¶2} The Franklin County Grand Jury indicted Hill on two counts of felonious assault, in violation of
{¶3} On the evening of March 4, 2008, Hill and his friend, Rondale Massey (“Rondale“), arrived at Brew-Stirs shortly after 8:00 p.m. and began drinking pitchers of beer. Hill had consumed approximately seven alcoholic beverages that day before arriving at Brew-Stirs. Sometime after 11:00 p.m., Michael and his girlfriend, Angela Theado (“Angela“), Kyle and his girlfriend, Emily Boyle (“Emily“), and several of Angela‘s co-workers arrived at Brew-Stirs to sing karaoke. Hill testified that, during the course of the evening, he flirted with the girls in that group. Toward the end of the evening, Hill bought Emily a shot, which she accepted. There was no conflict in the bar throughout the evening.
{¶4} After last call, Hill followed Emily outside, where Emily immediately joined Michael and Angela who were standing to the left of the front door. There was testimony that Kyle was also outside, leaning against the building, although Hill did not see him. Sensing that Emily wanted someone to intervene between her and Hill,
{¶5} After being cut, Michael grabbed Hill‘s wrist and tried to pin him to the wall, at which time Kyle intervened and tried to tackle Hill and Michael from the left. In the fall, Michael lost his grip on Hill‘s right hand, which held the box cutter, and he suffered a cut on his hand. With his right hand free, Hill began slashing with the weapon. Hill testified, “I had been forced physically to the ground by two individuals, so I guess I‘m swinging both hands, basically trying, I guess, to punch fight” with the box cutter. (Tr. 455.) Michael testified that Hill slashed at Kyle‘s head, that “Kyle was retreating and holding his arms with his elbows bent around his head,” and that Kyle exclaimed, ” ‘I‘m cut.’ ” (Tr. 53-54.) Kyle testified that he felt the left side of his face become “really hot” and, looking down, noticed his coat was “soaked with blood.” (Tr. 192.) Kyle sustained
{¶6} As Hill was slashing at Kyle, Michael flipped Hill face down onto the ground, elbowed him in the back of the head three to four times, knocked the box cutter from his hand, and hit him three to four more times in the back of the head to ensure “that he was unconscious and not going to continue the fight.” (Tr. 55.) After Michael backed away from Hill, taking Angela with him, Rondale picked Hill up, and the two walked southbound on the sidewalk, leaving footprints in the snow. After the police arrived and spoke with witnesses, Officer Todd Aiello followed the footprints in the snow to a parked white van several streets away. One set of footprints went toward the driver‘s side of the van, and the other went toward the passenger side. Officer Aiello observed two men asleep in the van and called for backup, after which both Hill and Rondale were arrested. Despite initially lying to detectives about his involvement in the fight, at trial Hill admitted his involvement, but argued that he acted in self-defense.
{¶7} Hill timely appealed his conviction, and he raises the following assignments of error:
- APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL[.]
- APPELLANT‘S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[.]
- APPELLANT‘S GUILTY VERDICT WAS STATUTORILY DEFECTIVE AND VOID[.]
{¶8} Before turning to Hill‘s assignments of error, we briefly address a pro se motion filed by Hill on February 11, 2010, in which Hill requests that this court take
{¶9} By his first assignment of error, Hill contends that he received ineffective assistance of trial counsel. The United States Supreme Court has established a two-pronged test for ineffective assistance of counsel. See Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052. First, the defendant must show that counsel‘s
{¶10} Hill argues that his trial counsel performed deficiently in the following ways: (1) by waiving his right to a speedy trial without consent; (2) waiving a record of voir dire; (3) not fully arguing a
{¶11} Hill first argues that his counsel performed deficiently by tolling his speedy trial rights without consent. Hill filed pro se motions to dismiss and for a speedy trial on July 8, 2008. The trial court denied Hill‘s speedy trial motion, but did not address his motion to dismiss. Before Hill filed those motions, his counsel, who was subsequently replaced, twice moved for and was granted continuances for investigation and trial preparation. From July 30, 2008, Hill‘s substituted counsel requested and was granted five additional continuances, each of which bore Hill‘s signature, evidencing his consent. Hill‘s signature, however, does not appear on the first two continuances, filed by his original attorney, and he argues that those continuances should not have operated to toll the speedy trial time.
{¶12} The state is required to bring a defendant to trial on a felony charge within 270 days of arrest, but each day the defendant is held in jail in lieu of bail counts as three days.
{¶13} ” ‘A defendant‘s right to be brought to trial within the time limits expressed in
{¶14} In Brime, this court rejected an argument that the defendant‘s speedy trial rights were violated where the defendant did not consent to various continuances and filed a pro se motion to dismiss. This court further found unpersuasive the defendant‘s argument that his trial counsel was ineffective in authorizing continuances, waiving the defendant‘s right to a speedy trial, without the defendant‘s consent. After concluding that neither the defendant‘s lack of consent to the continuances nor the defendant‘s pro se filing of a motion to dismiss affected the validity of his counsel‘s waiver of speedy trial rights, the court noted that waiver of the right to a speedy trial through a motion for a
{¶15} As in Taylor, McBreen, and Brime, counsel‘s waiver of speedy trial time for the requested continuances binds Hill, even where Hill did not expressly consent to the request or the continuance. “[T]here is a presumption that waiver [of speedy trial time] is a sound trial strategy, ‘especially when the purposes of the waiver are for trial preparation.’ ” Brime at ¶40, quoting State v. Shepherd, 11th Dist. No. 2003-A-0031, 2004-Ohio-5306, ¶31. Hill has not demonstrated deficient performance by his counsel regarding either the tolling or waiver of speedy trial time, nor has he demonstrated prejudice as a result of his counsel‘s actions.
{¶16} Hill next argues that his counsel‘s waiver of the presence of a court reporter to record voir dire proceedings constituted deficient representation. Counsel does not, however, have a duty to record voir dire proceedings. See State v. Barker (May 9, 1996), 10th Dist. No. 95APA09-1209, citing State v. Schwarzbach (Nov. 6, 1990), 10th Dist. No. 89AP-1504 (noting the common practice in non-capital cases to waive the presence of a court reporter for voir dire), and State v. Robertson (July 31, 1979), 10th Dist. No. 78AP-584. As such, the waiver of a record of voir dire does not rise to the level of deficient performance. Even if counsel‘s waiver of a record of voir dire could be considered deficient, however, Hill does not argue any specific error in voir dire or any specific prejudice arising out of the lack of a record. Moreover, establishing such prejudice would require proof outside the trial court record. Because our review is
{¶17} Hill‘s third allegation of deficient performance, that counsel waived argument in support of his
{¶18} Hill next argues that his counsel‘s performance was deficient because counsel did not request, pursuant to
{¶19} The remainder of Hill‘s allegations of deficient performance by his attorney stem from evidentiary issues. Hill suggests that his counsel performed deficiently by questioning him about a prior felony conviction for drug possession in 1997.
{¶20} Hill also argues that his attorney‘s performance was deficient because he did not retain an expert witness to testify about the effect of Hill‘s pre-existing leg injury and about the extent of injury a box cutter could inflict. Hill does not explain what evidence an expert would offer or how expert evidence would have affected his self-defense claim. Where “[n]othing in the record indicates what kind of testimony an [expert witness] could have provided,” resolving the issue of whether counsel was deficient in failing to employ an expert is “purely speculative.” State v. Madrigal, 87 Ohio St.3d 378, 390-91, 2000-Ohio-448. See also State v. Hillman, 10th Dist. No. 06AP-1230, 2008-Ohio-2341, ¶55, citing Madrigal; State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶221 (rejecting as conjectural an ineffective assistance claim based on defense counsel‘s failure to request funds for an expert). Additionally, establishing what an expert would have testified to would require proof outside the record. Thus, Hill‘s claim of ineffective assistance based on the failure to retain and call an expert witness is not appropriately considered on direct appeal. See Madrigal at 391.
{¶22} We similarly conclude that Hill has not overcome the presumption of effective representation based on the lack of an objection to the prosecutor‘s questioning of Hill‘s belief of imminent threat of death or serious bodily harm prior to unsheathing the box cutter. The following exchange occurred during Hill‘s cross-examination:
Q. You have been punched before, I assume, correct?
A. It‘s been a long time.
Q. You survived that punch. Obviously, you‘re here before us today?
A. Yes.
Q. A punch in itself isn‘t enough to make you think that your life is at stake, right?
A. I guess it would depend on the circumstances, really. I haven‘t been to a lot of fights, so I don‘t know at any given moment. I guess it just depends on the circumstances.
Q. But in these circumstances, you didn‘t think that you were going to die because you got punched in the face, did you?
A. Not from a punch, no.
(Tr. 501-02.) The basis for Hill‘s argument on appeal is a newspaper article published seven months after Hill‘s trial. We may not consider that article, which was not part of the trial court record. As with Hill‘s argument regarding Kyle‘s exclamation, counsel‘s decision of whether to object to particular testimony or questioning can be considered a
{¶23} Because Hill has not established any example of deficient performance by his counsel, as required by Strickland, we discern no cumulative error as a result of the combined effect of the alleged instances of ineffective assistance. For these reasons, we overrule Hill‘s first assignment of error.
{¶24} By his second assignment of error, Hill maintains that his conviction was against the manifest weight of the evidence. In determining whether a verdict is against the manifest weight of the evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. Thus, we review the entire record, weigh the evidence and all reasonable inferences, and consider the credibility of witnesses. Id. Additionally, we 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.’ ” Id., quoting State v. Martin (1983), 20 Ohio App.3d 172, 175. We reverse a conviction on manifest weight grounds for only the most ” ‘exceptional case in which the evidence weighs heavily against the conviction.’ ” Thompkins at 387, quoting Martin at 175. Moreover, ” ‘it is inappropriate for a reviewing court to interfere with factual findings of the trier of fact * * * unless the reviewing court finds that a reasonable juror could not find the testimony of the witness
{¶25} Defining felonious assault,
{¶26} Hill first argues that the state failed to prove that he had the requisite mental state for felonious assault. To prove felonious assault, the state was required to demonstrate either that Hill knowingly caused serious physical harm or that he knowingly caused or attempted to cause physical harm by means of a deadly weapon.
Voluntary intoxication may not be taken into consideration in determining the existence of a mental state that is an element of a criminal offense. * * * Evidence that a person was voluntarily intoxicated may be admissible to show whether or not the person was physically capable of performing the act with which the person is charged.
This court has held that, since the General Assembly amended
{¶28} Hill directs this court to the Fourth District Court of Appeals’ opinion in State v. Goad, 4th Dist. No. 08CA25, 2009-Ohio-580, in which the court suggested that, despite the language of
{¶30} Hill also contends that the state failed to prove that he utilized a deadly weapon. For purposes of felonious assault, “deadly weapon” has the same meaning as set forth in
{¶31} A box cutter may constitute a deadly weapon. State v. Carter, 8th Dist. No. 84036, 2004-Ohio-6861, ¶14, quoting State v. Tucker, 8th Dist. No. 81885, 2003-Ohio-3022. Here, on cross-examination, Hill not only agreed that the box cutter he carried was “capable of causing death,” but also agreed that, during the altercation giving rise to the indictment, he “used it as a weapon” to cut the victims. (Tr. 473.)
{¶32} In his third and final assignment of error, Hill argues that his guilty verdict was void because it violated
{¶33}
{¶35} In this case, the relevant verdict form states: “We, the Jury, being duly impaneled and sworn, do find the Defendant, Mark Hill, GUILTY OF FELONIOUS ASSAULT (Michael Newman) as he stands charged in Count One of the indictment.” Count 1 of the indictment charged Hill with a violation of
{¶36} Having overruled each of Hill‘s assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Motion overruled and judgment affirmed.
TYACK, P.J., and SADLER, J., concur.