[Cite as State v. Hicks,
2014-Ohio-704.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99974
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TIMOTHY A. HICKS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-568992
BEFORE: Jones, J., Boyle, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: February 27, 2014
ATTORNEY FOR APPELLANT
Patricia J. Smith
4403 St. Clair Avenue
The Brownhoist Building
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Edward D. Brydle
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant Timothy Hicks appeals his convictions for felonious
assault and having weapons while under a disability. We affirm.
I. Procedural History
{¶2} In December 2012, Hicks was charged with two counts of felonious assault
and one count of having weapons while under a disability. All three counts contained
one- and three-year firearm specifications. The felonious assault counts additionally
contained notice of prior conviction and repeat violent offender specifications.
{¶3} The matter proceeded to a jury trial, except for the having weapons while
under a disability count and the notice of prior conviction and repeat violent offender
specifications, that were tried to the bench. The jury found Hicks not guilty of the
felonious assault as charged in Count 1, but guilty of the felonious assault and firearm
specifications as charged in Count 2. The court found Hicks guilty of the notice of prior
conviction and repeat violent offender specifications attendant to Count 2. The court
also found Hicks guilty of having weapons while under a disability. The trial court
sentenced Hicks to an eight-year prison term.
II. Facts
{¶4} The victim in this case was Keith Marable. In the early morning hours of
August 18, 2012, Marable was shot while he was walking through the parking lot of the
Garden Valley Apartments in Cleveland.
{¶5} Marable testified that he dropped off his girlfriend, Ashate Sullivan, to the
apartment complex. At the same time he was dropping Sullivan off, Sullivan’s cousin
was arriving at the complex. Sullivan and her cousin met up, and Marable remained in
his car, waiting to make sure the two women safely entered the apartment complex.
{¶6} According to Marable, there were three males in the parking lot; two of them
were sitting on a car, and the other was standing up next to the car. Marable later
identified the man standing next to the car as Hicks.
{¶7} Marable had his car window rolled down, and as Sullivan and her cousin
were walking to the apartment complex, he heard the males trying to get the females’
attention by talking crudely to them, which bothered Marable. The females talked to the
group and the cousin gave Hicks her telephone number.
{¶8} Sullivan and her cousin went into the complex, and Marable approached the
males. He told them that Sullivan was his girlfriend and he did not appreciate the way
they were talking to her. Marable testified that he was not aggressive in the way he
approached the group.
{¶9} However, according to Marable, Hicks took an aggressive stance toward him,
so he backed off, told Hicks “no disrespect,” and turned to walk away. Marable testified
that he heard someone say something to the effect that he was going to get “messed up for
a girl.”
{¶10} When Marable was about 15 to 20 feet away from the group, he heard
gunshots. He turned around and saw appellant aiming a gun directly at him. Marable
ran into the apartment complex and saw that he had been shot in the foot.
{¶11} Meanwhile, Sullivan had come back outside and again encountered the
males, of which she testified there were four — then and when she initially had
encountered them. One of the males told her that Marable had run away and left his car
running. According to Sullivan, everyone in the group appeared calm. She called
Marable on his cell phone, and he told her that he had been shot; she took his car, picked
him up, and drove him to the hospital. Sullivan testified that she did not see the
shooting or hear shots being fired.
{¶12} Cleveland Police officer John Douglas responded to the hospital and spoke
with Marable, Sullivan, and her cousin. Marable told Douglas the same version of
events that Marable testified to, including that the cousin had given her phone number to
Hicks.
{¶13} Sullivan and her cousin were hostile to the officer. The cousin did,
however, give the officer the telephone number she had gotten, which the lead detective
on the case confirmed was for a cell phone belonging to Hicks. The detective compiled
a photo array; Marable “immediately” identified Hicks as the shooter and indicated that
he was “100 percent” sure.
{¶14} Hicks testified at trial. He admitted that he had three 2009 convictions for
robbery with a firearm specification, drug trafficking, and having weapons while under
disability, and that he served a three-year prison term for the offenses.
{¶15} Hicks admitted to being at Garden Valley at the time in question, but denied
having or firing a gun. According to Hicks, he was in parking lot hanging out with his
brother, Titus, and Titus’s friends Joseph Hart and Zavious Hawthorne; another male that
Hicks did not know was also with the group.
{¶16} Hicks admitted that he made a crude remark to one of the young women the
group saw and exchanged phone numbers with the other one. Hicks also testified that
after Marable had approached the group and told them that Sullivan was his girlfriend and
he did not want Hicks and his friends talking to her, everyone in the group said “all right”
and “just go on, get up out of here.”
{¶17} According to Hicks, as Marable was walking away, he saw a gun “coming
across [his] face,” and a male started shooting from the right side of him near where
Joseph and Zavious were standing. After shooting, the male ran off. Hicks and his
friends decided to leave before the police arrived.
{¶18} Hicks testified that the shooter must have been the male who was unknown
to him. He admitted that his brother, Titus, probably knew who the male was, but never
asked his brother about the believed-shooter’s identity, even after being charged in this
case. Hicks admitted that it was strange that he never inquired.
{¶19} Joseph Hart testified on Hicks’s behalf, and corroborated Hicks’s testimony
that a “random” male was hanging out with the group. Hart testified that he knows a lot
of people in the Garden Valley neighborhood, but he had never before seen the random
male, who he guessed was about his age, and had not seen him again since the incident.
{¶20} According to Hart, Marable was acting aggressively when he approached
the group, and Hicks was the only one who spoke to him. Hart initially testified that he
did not know who fired the shots, but he was sure that the shooter was not anyone in the
group, including the random male. Hart believed that the shots came from behind a
nearby building. However, Hart changed his testimony, and stated that the random
male could have been the shooter after all.
{¶21} Hawthorne also testified on Hicks’s behalf. Hawthorne corroborated
Hart’s testimony that Hicks was the one who addressed Marable when he approached the
group about talking to his girlfriend. Hawthorne described Hicks as “getting angry”
because Marable was “antagonizing” him. Hawthorne testified that he did not know
where the shots came from, but he knew Hicks did not fire them, because he was standing
right next to Hicks and Hicks would have shot him. Hawthorne also testified that there
was a random male who joined the group that evening; no one knew who he was, but he
left prior to the confrontation between Hicks and Marable. Hawthorne did not know
where the shots came from.
III. Law and Analysis
{¶22} Hicks’s sole assignment of error reads:
The jury lost its way and rendered a verdict of guilt which was against the
manifest weight of the evidence when several witnesses were able to state
that the appellant did not shoot the victim and where there was no scientific
or physical evidence to support their verdict.
{¶23} In State v. Wilson, 113 Ohio St.3d 382,
2007-Ohio-2202,
865 N.E.2d 1264,
the Ohio Supreme Court addressed the standard of review for a criminal manifest weight
challenge, as follows:
The criminal manifest-weight-of-the-evidence standard was explained in
State v. Thompkins (1997), 78 Ohio St.3d 380,
1997-Ohio-52,
678 N.E.2d
541. In Thompkins, the court distinguished between sufficiency of the
evidence and manifest weight of the evidence, finding that these concepts
differ both qualitatively and quantitatively. Id. at 386,
678 N.E.2d 541.
The court held that sufficiency of the evidence is a test of adequacy as to
whether the evidence is legally sufficient to support a verdict as a matter of
law, but weight of the evidence addresses the evidence’s effect of inducing
belief. Id. at 386-387,
678 N.E.2d 541. In other words, a reviewing
court asks whose evidence is more persuasive — the state’s or the
defendant’s? We went on to hold that although there may be sufficient
evidence to support a judgment, it could nevertheless be against the
manifest weight of the evidence. Id. at 387,
678 N.E.2d 541. “When a
court of appeals reverses a judgment of a trial court on the basis that the
verdict is against the weight of the evidence, the appellate court sits as a
‘thirteenth juror’ and disagrees with the factfinder’s resolution of the
conflicting testimony.” Id. at 387,
678 N.E.2d 541, citing Tibbs v. Florida
(1982), 457 U.S. 31, 42,
102 S.Ct. 2211,
72 L.Ed.2d 652.
Wilson at ¶ 25.
{¶24} An appellate court may not merely substitute its view for that of the
factfinder, but must find that “in resolving conflicts in the evidence, the factfinder 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. Accordingly, reversal on manifest
weight grounds is reserved for “the exceptional case in which the evidence weighs
heavily against the conviction.” Thompkins at id.
{¶25} Hicks contends that his conviction was against the manifest weight of the
evidence because the “only evidence at trial which pointed to the appellant as the
perpetrator … came from the testimony of Keith Marable.” According to Hicks,
Marable’s testimony was not reliable because it was not corroborated by any other
witness, it was the middle of the night, and Marable was only able to identify Hicks
because he had had words with him. We disagree.
{¶26} Although appellate review includes the responsibility to consider the
credibility of witnesses and weight given to the evidence, “these issues are primarily
matters for the trier of fact to decide since the trier of fact is in the best position to judge
the credibility of the witnesses and the weight to be given the evidence.” State v.
Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, ¶ 26. Therefore, an
appellate court will overturn a conviction due to the manifest weight of the evidence only
in extraordinary circumstances to correct a manifest miscarriage of justice, and only when
the evidence presented at trial weighs heavily in favor of acquittal. Thompkins at 386.
{¶27} This is not an extraordinary case where the evidence weighed heavily in
favor of acquittal. The jury did not believe Hicks’s theory that the shooter was a random
male who was with his brother and his brother’s friends. Given that Hicks testified that,
although his brother probably knew the random male, he never inquired about him, even
after being charged with the shooting, there was nothing extraordinary about the jury
discrediting Hicks’s theory.
{¶28} Likewise, it was not extraordinary that the jury discredited Hart and
Hawthorne’s testimony. Hart was initially insistent that no one from the group,
including the random male, was the shooter. But Hart changed his testimony, and stated
that the shooter could have been the random male. Hawthorne testified that he did not
know where the shots were fired from, but he was sure Hicks did not fire them because
they were standing right next to each other and he would have been hit if Hicks were the
shooter.
{¶29} It was not extraordinary that the jury believed Marable’s testimony that
while walking away from Hicks after having a confrontation with him, he heard gunshots,
turned around, and saw Hicks aiming a gun at him.
{¶30} On this record, the weight of the evidence supports the convictions for
felonious assault and having weapons while under a disability. Hicks’s sole assignment
of error is, therefore, overruled.
{¶31} Judgment 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 conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
MARY J. BOYLE, A.J., and
MARY EILEEN KILBANE, J., CONCUR
