STATE OF OHIO v. MARCUS HILL
No. 99819
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
February 6, 2014
[Cite as State v. Hill, 2014-Ohio-387.]
BEFORE: Rocco, J., Celebrezze, P.J., and E.T. Gallagher, J.
JOURNAL ENTRY AND OPINION. JUDGMENT: AFFIRMED. Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-568406. RELEASED AND JOURNALIZED: February 6, 2014.
John E. Castele
614 West Superior Avenue, Suite 1310
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Edward R. Fadel
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{1} Defendant-appellant Marcus Hill appeals his convictions for felonious assault in violation of
{2} Hill‘s convictions arose out of an October 24, 2012 shooting incident in the area of 2834 Washington Avenue in Cleveland. On November 13, 2012, Hill was indicted on six counts — three counts of attempted murder in violation of
{3} The state‘s witnesses, which included eyewitnesses Danielle Edwards (“Danielle“), her son and daughter, Lindsey (“Lindsey“) and Destiny Baldwin (“Destiny“), and Nataia Ogletree, several police officers, and a forensic expert, provided
{4} Danielle Edwards testified that on the evening of October 24, 2012, she received a telephone call advising her that a couple of neighborhood children were fighting at Linda‘s, a corner store located several minutes up the street from her apartment. After receiving the call, she ran out to the parking lot and jumped into her truck, intending to drive to the store to get her children, Lindsey and Destiny, whom she believed were also at the store. Danielle testified, however, that she never made it to the store. Before she left the parking lot, she saw her children and other kids from the neighborhood coming back towards the parking lot, so she turned around. As she was pulling her truck into a space in the parking lot, Danielle testified that she heard the children screaming, “Here they come. Here they come.” Danielle testified that she got out of the truck and was approaching the walkway when she saw three young men — Hill, Willis, and T.Y. — running towards her children and Anthony Donner (“Donner“), who, by this time, were standing by a gate near the dumpster. Hill was in the front with Willis and T.Y. on either side of him. Although, at the time, Danielle did not know Hill by name, she testified that she recognized him from the neighborhood and that her children later tоld her his name. Danielle testified that she likewise knew Willis from the neighborhood and had previously spoken to him several times. She identified both men in the courtroom.
{6} On cross-examination, Danielle testified that she had given two written statements to police — one that evening, immediately after the incident, and a second statement the following day. Danielle admitted that in the first statement she gave to police, she mistakenly indicated that there were “three shooters.” At trial, she testified that she “wrote it wrong” and “meant to say it the other way,” i.e., that although there were three boys, “only two of them was [sic] shooting.” She testified that when she
{8} Danielle‘s 14-year-old daughter, Destiny Baldwin, also testified. Destiny testified that on the evening of the incident, she saw Hill and Willis at the corner store. She testified that she had been at the store with her brother, Lindsey, his friend, Donner, and several others watching Hill and another boy, Marquel, fighting. After the fight, they walked back to their house on Washington Avenue. She testified that a few minutes after the fight, she, Lindsey, and Donner were “up the hill” near the garbage can by her house when Hill, accompanied by Willis and T.Y., “came shooting.” She testified that she knew Willis and Hill from the recreation center, where she would see them playing basketball. She identified both boys in the courtroom.
{9} Destiny testified that she saw a gun in Hill‘s hand and saw fire coming from the front of the gun, pointing down towards where she, Lindsey, and Donner were standing, approximately ten feet away. She testified that Willis and T.Y. were standing next to Hill, facing towards her, and that she did not see either Willis or T.Y. holding a gun. Based on the way in which she and the others were positioned, Destiny testified
{10} Destiny testified that she heard two gun shots. To her knowledge, no one was struck by the bullets, but one hit a gate a few inches away from where she, Lindsey, and Donner were standing. Destiny testified that after the shooting began, Donner pushed her towards her house and told her to leavе. Destiny turned around and ran home quickly. When she arrived, her mother was already there. Destiny testified that she spoke with police after the incident but was never asked to prepare a written statement.
{11} Danielle‘s son, sixteen-year-old Lindsey Baldwin, similarly testified that he knew Willis and Hill from the recreation center, where he had played basketball with them. Lindsey testified that at approximately 5:00 p.m. on the day of the incident, he was walking home from the recreation center with a boy named Marquel when he was hit from behind. Lindsey testified that he did not know who hit him but that Hill and another boy, Joseph, were there and were holding him down. Lindsey testified that later that evening, he learned that Hill was at the store fighting Marquel, so he, Destiny, and Donner went up the hill to the store. Lindsey testified that by the time they arrived, the fight was over. He saw Hill ran past them, “toward the high rise.” Lindsey testified that when he next saw Hill, approximately five minutes later, Hill was running towards him down the hill, shooting. Lindsey testified that he saw a gun in Hill‘s hand and that Hill was shooting towards the area where he, Destiny, Donner, and “a lot” of others were
{12} On cross-examination, Lindsey admitted that there was “bad blood” between him and Hill and Willis, i.e., he did not like them and they did not like him. Although Lindsey had originally testified on direct examination that he could see Hill‘s and Willis‘s faces despite the darkness, on cross-examination, he later acknowledged that he cоuld not see their faces as they were shooting but knew who was shooting at him because he knew “how they walked and stuff.” Lindsey also admitted that he gave a written statement to police the day after the incident in which he indicated that only Hill had been shooting at him. Despite acknowledging that the information “would have been important,” Lindsey could not state why he did not mention, in the written statement he gave police, that Willis had been shooting at him as well.2
{14} Ogletree testified that after the altercation at the store, she and several others were walking back towards her grandmother‘s house on Washington Avenue when Hill told them, “wait right there,” and ran down the hill. At this time, Willis was “still towards the store.” Ogletree testified that she and her companions continued to walk toward Washington Avenue. A minute or two later, as they approached 2834 Washington Avenue, Ogletree testified she heard gunshots coming from behind her from the corner. She and “a lot” of others who were standing in the area took off running. She testified that she and Danielle hurried to get the young children who were in the area inside away from the gunfire. Ogletree testified that she did not see the gunfire or who was shooting and did not recall how many shots she heard. She further testified that she gave a statement to police following the incident in which she stated that Willis was wearing a red polo hat, red shirt, and khakis that evening.
{16} Brazzell testified that he had been assigned to the 2 p.m. to 10 p.m. shift and had responded to an assault call earlier that evening involving Lindsey. Brazzell testified that he spoke with Hill regarding the alleged assault and that Hill acknowledged being present during the assault, but denied knowing who hit Lindsеy. Brazzell testified that when he spoke with Hill about the alleged assault, Hill was wearing a blue shirt and khaki pants.
{17} Brazzell testified that, later that evening, he was one of several police officers who responded to a call regarding shots having been fired on Washington Avenue. Brazzell testified that when he arrived on the scene, he saw six to ten people “in a slight panic.” He conducted interviews of several eyewitnesses, including Danielle and Ogletree, and testified that, with respect to potential suspects, Hill and Willis were identified by name as having been involved in the incident. He testified that the witnesses also provided descriptions of two males who were allegedly involved in the incident — one in a blue shirt and khaki pants and one in a red or grey shirt with a hoodie and cargo or khaki pants. After speaking with the victims, Brazzell conducted a patrol of the surrounding area. Less than 100 yards from the scene of the incident, Brazzell
{18} CMHA Sergeant Schilling and CMHA Detective Kyle White were also involved in the on-site investigation. Dеtective White testified that they located and collected four spent .40 caliber shell casings at the scene. Sergeant Schilling believed that the casings they found were nine millimeter shell casings, but explained that nine millimeter and .40 casings could be fired from the same gun. Detective White further testified that no gun was located at the scene and that a .40 caliber bullet could not be shot from a .22 caliber gun.
{19} Martin Lewis, a forensic scientist in the trace evidence section of the Attorney General‘s Office, Bureau of Criminal Identification and Investigation, testified regarding gunshot residue tests he performed on a jacket belonging to Hill. He testified
{20} CMHA Detective Leon Justus was assigned to conduct the follow-up investigation following the incident. He testified that, as part of his investigation, he spoke with Danielle, reviewed the first statement she gave at the scene of the incident with her, and then asked her to write out another statement. He also spoke with Lindsey, Destiny, and several others regarding the incident. Justus thereafter obtained a search warrant for Hill‘s apartment where officers recovered a .22 caliber revolver out of Hill‘s closet and six rounds of .22 ammunition in a dresser. Justus testified, however, that the .22 caliber ammunition and revolver found in Hill‘s home did not match the .40 caliber shell casings found at the scene. After Justus executed the search warrant, Hill was arrested.
{21} Neither Hill nor Willis presented any witnesses in their defense.
{23} On March 25, 2013, thе trial court sentenced Hill to an aggregate prison term 6 years — three years on each of the felonious assault charges, to be served concurrently to one another, and three years on the firearm specifications, to be served consecutively with the three-year sentence on the felonious assault charges.
{24} Hill appeals his convictions, raising a single assignment of error:
The defendant‘s convictions are against the manifest weight of the evidence.
{25} A manifest weight challenge questions whether the state met its burden of persuasion at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). When a conviction is challenged on appеal as being against the manifest weight of the evidence, the reviewing court must examine the entire record, weigh the evidence and all reasonable inferences, consider the witnesses’ credibility, and 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. Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{27} In support of his manifest weight challenge, Hill argues that his convictions are inconsistent with the trial court‘s acquittal of his codefendant, Willis, on the same charges. Hill also contends that his convictions should be overturned due to (1) the absence of a weapon or any forensic evidence linking him to the shooting, (2)
{28}
No person shall knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a deadly weapon or dangerous ordnance.
“A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.”
{29} Under
{30} The acquittal of Willis on all charges does not warrant the conclusion that Hill‘s conviction on the same charges was against the manifest weight of the evidеnce.
{31} Further, the state presented evidence that Willis was picked up walking along the neighborhood streets shortly after the incident. Gunshot residue tests performed on Willis‘s hands thirty or forty minutes after the shooting came back negative. Forensic expert Martin Lewis testified that he would generally expect gunshot residue to remain on a shooter‘s hands for four to six hours after a shooting. The fact that these tests came back negative, cоmbined with the conflicting witness testimony regarding Willis‘s role in the incident, supports the trial court‘s reasonable doubt as to whether Willis “knowingly * * * [c]ause[d] or attempt[ed] to cause physical harm to another * * * by means of a deadly weapon or dangerous ordnance.”
{33} Further, even assuming arguendo that the verdicts against Hill and acquitting Willis were inconsistent, “inconsistent verdicts between co-defendants is not a sufficient reason for reversing a conviction.” See, e.g., Eppard at ¶ 16; Mounts at *12, citing Dunn v. United States, 284 U.S. 390, 394, 52 S.Ct. 189, 76 L.Ed. 356 (1932), and United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 88 L.Ed. 48 (1943).
{35} Likewise, inconsistencies among the witnesses’ testimony or purported discrepancies between the witnesses’ statements to police and their trial testimony are not a sufficient basis to overturn Hill‘s convictions on manifest weight grounds.
{36} Danielle, Lindsey, and Destiny each testified unequivocally that they heard gunshots and saw gunfire coming towards them from a gun held in Hill‘s hand. These witnesses further testified that they knew Hill by name (or, in the case of Danielle, facial recognition) from playing basketball at the recreation center or from seeing him around the neighborhood. They also testified that they saw Hill‘s face or otherwise recognized Hill from “how [he] walked and stuff” when Hill was shooting toward the crowd that evening. Hill was identified as a shooter in both Danielle‘s and Lindsey‘s witness statements and during the 911 call. Police detectives testified that four shell casings were recovered near the scene of the incident, corroborating the witnessеs’ testimony that a gun had been fired.
{38} Hill highlights various issues with Lindsey‘s testimony, in particular, that he claims makes him an unbelievable witness. However, “[i]t is the province of the [trier of fact] to determine where the truth probably lies from conflicting statements, not only of
{39} Nor does the fact that there was “bad blood” between Lindsey and Hill warrant overturning his convictions. The animosity between Lindsey and Hill and any motive on the part of Lindsey or his family members to testify untruthfully was simply one fact for the court to consider in evaluating the credibility of the witnesses’ testimony.
{40} The trial court, as the trier of fact in this case, was in the best position to weigh the evidence and the witnesses’ credibility. It was entitled to believe or disbelieve all, part, or none of a witness‘s testimony. Torres, 2013-Ohio-5030 at ¶ 93, citing State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21. After examining the entire record, we cannot say that the trial court lost its way or created a manifest miscarriage of justice in convicting Hill of felonious assault and the related firearm specifications. The state‘s case contained substantial testimonial evidence upon which the trial court could reasonably conclude, beyond a reasonable doubt, that Hill wаs one of the shooters and that he “knowingly * * * attempt[ed] to cause physical harm to another * * * by means of a deadly weapon or dangerous ordnance,” had “a firearm on or about [his] person or under [his] control while committing the [offense],” and “display[ed] the firearm, brandish[ed] the firearm, indicated that [he] possessed the firearm, or us[ed] [the firearm] to facilitate the offense” to warrant his convictions for felonious assault in violation of
{41} Hill‘s convictions are 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 convictions having been affirmed, any bail pending appeal is terminated. Case rеmanded to the trial court for execution of sentences.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN T. GALLAGHER, J., CONCUR