[Cite as State v. Hill,
2020-Ohio-1237.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-18-1160
Appellee Trial Court No. CR0201703045
v.
Jamaine Hill DECISION AND JUDGMENT
Appellant Decided: March 31, 2020
…
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
…
ZMUDA, P.J.
{¶ 1} Appellant, Jamaine Hill, appeals the June 15, 2018 judgment of the Lucas
County Court of Common Pleas following his conviction on seven counts of felonious
assault. We affirm, in part, and reverse, in part, the judgment of the trial court.
I. Facts and Procedural Background
{¶ 2} On November 27, 2017, appellant was indicted on seven counts of felonious
assault in violation of R.C. 2903.11(A)(2) and (D), each a first-degree felony, and
possession of a weapon while under disability in violation of R.C. 2923.13(A)(3) and (B),
a third-degree felony. Each count of felonious assault included a firearm specification
pursuant to R.C. 2941.145(A), (B), (C), and (F). Appellant was arraigned on
December 14, 2017. He was determined to be indigent, was appointed counsel, and
entered a not guilty plea to all counts.
{¶ 3} On March 12, 2018, appellant filed a motion to suppress any statements
given to the investigating officers arguing any statements made were inadmissible
pursuant to Miranda v. Arizona, 384 U.S. 436,
86 S.Ct. 1602,
16 L.E.2d 694 (1966). The
state opposed the motion and the trial court conducted a hearing on appellant’s motion on
March 27, 2018. The trial court denied appellant’s motion. Next, the state filed a motion
in limine on April 26, 2018, seeking to exclude any evidence seized during execution of
the no-knock warrant from being introduced at trial and to preclude any attempt by
appellant to cross-examine the state’s witnesses regarding the seized evidence. The state
argued the evidence seized was irrelevant to the charges appellant faced and its
introduction, either as evidence or by reference on cross-examination, would result in
jury confusion. Appellant did not oppose the motion and the trial court granted the
state’s motion upon the commencement of trial on June 11, 2018. Following the trial
2.
court’s order on these preliminary motions, the matter proceeded to trial where the
following facts were established.
{¶ 4} On November 16, 2017, officers from the Toledo Police Department SWAT
team were executing a no-knock search warrant at appellant’s residence on Caroline
Street in Toledo, Ohio. Detective J.P., the victim in Count 2 of the indictment, obtained
the warrant and coordinated with the SWAT team on its execution. At approximately
2:00 a.m., the SWAT team and supporting officers, including J.P., arrived at appellant’s
residence. Officer R.K., the victim in Count 1 of the indictment and a member of the
SWAT team, was the first to approach the door of the residence. He was followed
immediately by officers R.J. and P.F., victims in Counts 3 and 4 of the indictment,
respectively.
{¶ 5} When the team reached appellant’s doorway, they encountered a metal
security door. R.K. opened the security door and let it hang to the right side of the
doorway. Officer B.K., who remained on the front lawn, then fired a distractionary
device through the front window of the residence. The device consisted of small wooden
dowels, known as “knee knockers,” which bounce through the room into which they are
fired with the purpose of distracting any individuals present. Immediately after the knee
knockers were deployed, R.J. shouted “police, search warrant.” Nearly simultaneously,
P.F. swung a battering ram into the residence’s front door forcing it open. R.K., serving
as the “point man” and carrying a shotgun, immediately proceeded through the now-open
doorway.
3.
{¶ 6} Upon entering the doorway, R.K. looked to his left to see appellant holding a
pistol aimed at him. Appellant began firing and R.K. immediately retreated through the
doorway and yelled “shots fired.” R.K., R.J. and P.F. remained on appellant’s porch until
appellant stopped shooting. At that point, they, along with the remaining SWAT team
members entered the residence and found appellant lying on a couch. The firearm
appellant used was not immediately observable. The SWAT team completed a search of
the house and located appellant’s wife in the kitchen. They secured appellant and began
searching the area in his immediate vicinity. In doing so, R.J. moved a sheet from the
couch and discovered a pistol. Appellant was then arrested.
{¶ 7} While the SWAT team was executing the warrant, J.P. was tasked with
watching the exterior of the residence to assist in apprehending any individuals running
away. As the doorway was breached, J.P. began walking closer to the residence. As he
moved, he was struck in the face by one of the bullets appellant fired. J.P. received
medical treatment at the scene and was transported by ambulance to the hospital. J.P.
suffered significant injuries and ultimately underwent surgery to replace a portion of his
jawbone with titanium. At the time of trial, J.P. was scheduled to undergo a second
surgery to replace the titanium with bone cultivated from his leg. No other officers
suffered physical injuries during the incident.
{¶ 8} Appellant testified at trial. He stated that at approximately 1:30 A.M. on the
morning of the incident, he fell asleep on his couch while watching television. At that
time, he was tired and disoriented as a side effect of prescribed painkillers he was taking
4.
following a recent surgery. He next recalled awakening to the sound of glass breaking
and feeling glass falling on him. He stated he was confused due to the effects of the
painkillers and took a moment to process what was happening. Also, he was already
nervous about someone breaking into his residence due to a window at the rear of the
house having been broken earlier in the evening. After he awoke, he heard a second
window break and reached for a gun sitting nearby. He then heard a commotion on the
porch and saw his door knob turning suggesting someone was trying to gain entry to the
residence. He immediately fired his gun toward the door. He testified that prior to firing
the weapon that the door did not open and no officers had entered the residence. He
stated his reasoning for firing the gun was that he feared for his and his wife’s safety.
Finally, appellant testified that after he finished firing his weapon, he saw the SWAT
officers entering the doorway and, realizing they were police officers, laid back down and
held his hands up. As the officers approached him, appellant offered an apology and
stated he did not realize he was shooting at police officers.
{¶ 9} Appellant was charged with seven counts of felonious assault of a peace
officer—one count each for six SWAT team members and one count for J.P.—each
including a firearms specification. Appellant was also charged with possession of a
firearm while under disability. On June 14, 2018, following a four-day trial, the jury
found appellant guilty on all counts.1 Appellant was immediately sentenced. On the
1
Appellant does not assign any error to his conviction on Count 8 of the indictment.
5.
following day, June 15, 2018, the trial court’s judgment entry sentencing appellant to an
aggregate prison sentence of 47 years and imposing costs of prosecution, appointed
counsel fees, and costs, was filed. Appellant timely appeals from the trial court’s
judgment and asserts the following errors for our review:
1. The trial court erred in denying appellant’s Crim.R. 29 motion;
2. The jury’s verdict was against the manifest weight of the
evidence presented at trial; and
3. The trial court committed error to the prejudice of appellant by
imposing the costs of prosecution without consideration of appellant’s
present or future ability to pay.
A. Crim.R. 29 Motion
{¶ 10} In his first assignment of error, appellant argues that the trial court erred in
denying his Crim.R. 29 motion for acquittal on Counts 3, 4, and 7. These counts charged
appellant with felonious assault of three different police officers—R.J., P.F., and D.M.
Felonious assault is a violation of R.C. 2903.11(A) which states:
No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another’s unborn;
(2) Cause or attempt to cause physical harm to another or to
another’s unborn by means of a deadly weapon or dangerous ordnance.
6.
Appellant was convicted of violations of R.C. 2903.11(A)(2). He argues that the
evidence the state introduced was insufficient to support a conviction on Counts 3, 4, and
7. We disagree.
{¶ 11} In reviewing a challenge to the sufficiency of the evidence, we view the
evidence in a light most favorable to the prosecution and determine whether “any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” (Internal citations omitted.) State v. Smith, 80 Ohio St.3d 89, 113,
684 N.E.2d 668 (1997). In making that determination, the appellate court will not weigh
the evidence or assess the credibility of the witnesses. State v. Were,
118 Ohio St.3d 448,
2008-Ohio-2762,
890 N.E.2d 263, ¶ 132. Whether there is sufficient evidence to support
a conviction is a question of law. State v. Thompkins,
78 Ohio St.3d 380, 386,
678
N.E.2d 541 (1997). In denying appellant’s Crim.R. 29 motion for acquittal, the trial court
determined the state presented sufficient evidence on Counts 3, 4, and 7 to allow those
charges to be determined by the jury.
{¶ 12} Appellant makes two arguments why the trial court’s denial of his Crim.R.
29 motion constitutes error. Appellant’s first argument contends the enhancement of his
felonious assault convictions to a first-degree felony was error because he did not know
the individuals entering his residence were peace officers. Generally, a violation of R.C.
2903.11(A) is a second-degree felony. However, when the victim is a peace officer, the
offense is enhanced by operation of law to a first-degree felony. R.C. 2903.11(D)(1)(a).
Appellant argues that because the state did not present sufficient evidence that he knew
7.
the victims were peace officers, the peace officer enhancement should not apply to his
convictions. Appellant’s argument presumes the state had the burden of proving
appellant knew at the time of the shooting that the victims were police officers.
{¶ 13} We have previously considered this specific argument and found it to be
without merit. In State v. Phillips, 6th Dist. Wood Nos. WD-16-020, WD-16-028,
WD-16-029, 2017-Ohio-7107, we held “[t]he state need not have proved that [a
defendant] knew that he was shooting at a police vehicle in order to enhance the offense
under R.C. 2903.11(A)(2)(D)(1), the peace officer specification.” Id. at ¶ 60, citing State
v. Mundy, 9th Dist. Medina No. 05CA0025-M,
2005-Ohio-6608, ¶ 9-10; see also State v.
Middleton, 5th Dist. Stark No. 1997CA00158,
1998 WL 516304 (Jan. 20, 1998).
Because the state was not required to present evidence appellant knew the victims were
peace officers, appellant’s Crim.R. 29 motion fails as a matter of law.
{¶ 14} Appellant next argues that the state failed to present sufficient evidence he
was aware of the number of SWAT team members preparing to enter on the no-knock
warrant. Because he was unaware of the number of officers, appellant argues, he could
not have knowingly attempted to cause those unknown officers physical harm in violation
of R.C. 2903.11(A)(2). This argument is also without merit.
{¶ 15} We have previously determined that a defendant’s knowledge of the
number of potential victims is unnecessary in proving the elements of felonious assault.
In State v. Gowdy, 6th Dist. No. E-06-071, 2009-Ohio-385, ¶ 28-29, defendant Gowdy
and a codefendant were charged with two counts of complicity to commit felonious
8.
assault. Gowdy and his codefendant’s charges were premised on the discharge of a
firearm into the residence of a Sandusky County police department detective. Gowdy
and his codefendant were found driving together in the vicinity of the shooting. The van
in which they were driving was fitted with a holster designed to carry a .380
semiautomatic or automatic pistol. Gunshot residue was found on the van’s door frames
and windows as well as Gowdy’s hands. Additionally, the bullet fired into the detective’s
home, as well as one found nearby, were determined to have been fired from the same
.380 semiautomatic or automatic pistol. The bullet passed through a window just above
where the detective and his wife were sleeping. Based on this evidence, Gowdy was
charged with and convicted of two counts of complicity to commit felonious assault. The
victims of these counts were the detective and his wife who were both asleep in the
residence at the time of the incident.
{¶ 16} Following his conviction, Gowdy appealed and argued the state failed to
present sufficient evidence that either he or his codefendant were aware the detective and
his wife were present in the home at the time the firearm was discharged into their
window. We rejected this argument finding “[f]iring a pistol into a window, without
knowing who could be behind it, satisfies a knowing attempt to cause physical harm.”
Id., citing State v. Elko, 8th Dist. Cuyahoga No. 83541,
2004-Ohio-5209, ¶ 54. The
evidence showed a bullet was fired into the residence through a window immediately
above where the victims were sleeping. We concluded this evidence was sufficient to
satisfy the elements of R.C. 2903.11(A)(2). Gowdy and his accomplice’s alleged lack of
9.
knowledge as to who occupied the residence at the time of the incident had no impact on
the sufficiency of the state’s evidence.
Id.
{¶ 17} We reach the same conclusion here. The evidence presented by the state
reflects that Officers R.J. and P.F. were on the left side of the doorway when D.K.
entered the residence. They remained in this position when appellant began firing the
weapon. R.J. testified that he was directly behind D.K. P.F. testified that the gunfire was
coming from his left just inside the doorway. At the same time, D.M. was positioned just
off the front porch with a view of the doorway. D.M. testified that he could hear the
gunshots to his left as he watched the exterior of the residence to determine if any
individuals exited through another door.
{¶ 18} The state also presented testimony from Detective Terry Cousino of the
Toledo Police Department’s Scientific Investigation Unit. Detective Cousino created a
reconstruction of the scene and determined that R.J. was in the direct line of fire of
bullets that entered the door frame. Cousino also testified that P.F. and D.M. were not in
the direct line of fire of any shots analyzed but he considered them to be at risk based on
their proximity to the gunfire.
{¶ 19} Just as in Gowdy, appellant indiscriminately fired a gun into an area
without knowledge of how many individuals he might endanger. In both cases, it is the
firing of a weapon into an area without knowledge of its occupants that is sufficient to
establish a knowing attempt to cause physical harm. In this case, victims D.K., P.F., and
10.
D.M. occupied the area into which appellant fired and the state presented sufficient
evidence as to appellant’s knowing attempt to cause them physical harm.
{¶ 20} Viewing this evidence in a light most favorable to the prosecution we find
that a rational juror could find the “knowingly” element of Counts 3, 4, and 7 were
proven beyond a reasonable doubt.2 Smith, 80 Ohio St.3d at 113,
684 N.E.2d 668.
Therefore, we find the state presented sufficient evidence in support of these counts and
properly denied appellant’s Crim.R. 29 motion for acquittal. Appellant’s first assignment
of error is found not well-taken.
B. Manifest Weight
{¶ 21} In appellant’s second assignment of error, he alleges the jury’s verdict was
against the manifest weight of the evidence. We previously stated:
[w]hen examining whether a conviction was contrary to the manifest
weight of the evidence, the appellate court serves as a ‘thirteenth juror’ to
conclude whether the trial court lost its way so significantly as to result in a
2
We note the state’s argument that appellant’s intent to cause great physical harm to R.K
transferred to the victims identified in Counts 3, 4, and 7. We agree that proof of the
mens rea element requiring knowing conduct for a felonious assault conviction can be
shown through transferred intent. State v. Dean, 146 Ohio St.3d 106,
2015-Ohio-4347,
54 N.E.3d 80, ¶ 144; State v. Reese, 1st Dist. Hamilton Nos. C-060676 and C-060577,
2007-Ohio-4319, ¶ 23. However, under our holding in Gowdy an offender knowingly
attempts to cause physical harm to those in proximity to their conduct in using a deadly
weapon. Appellant’s conduct shows his knowing conduct was directed at the victims
identified in Counts 3, 4, and 7 as they were in close proximity to the bullets appellant
fired. It is not necessary to analyze transferred intent to resolve this particular appeal.
11.
manifest miscarriage of justice, necessitating that the conviction be
overturned. In reaching this determination, we grant substantial deference
to the trial court's decision given its unique opportunity to consider the
evidence presented and to closely observe and assess the demeanor and
credibility of the witnesses.”
State v. Butler, 6th Dist. Lucas No. L-08-1390, 2010-Ohio-178, ¶ 11 (internal citations
omitted). We note that questions regarding the “weight and credibility of evidence are
primarily for the trier of fact.” State v. Teal, 6th Dist. Lucas Nos. L-15-1280 and
L-15-1281,
2017-Ohio-7202, ¶ 58, citing State v. Pena, 6th Dist. Lucas No. L-12-1309,
2014-Ohio-423, ¶ 22. This court’s “discretionary power to grant a new trial should be
exercised only in the exceptional case in which the evidence weighs heavily against the
conviction.” Thompkins,
78 Ohio St.3d at 386,
678 N.E.2d 541, quoting State v. Martin,
20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st. Dist.1983). Under these guidelines, we
find no error in appellant’s conviction.
{¶ 22} The record reflects testimony from each SWAT team member regarding
the underlying incident. Each officer testified that the team approached the doorway to
appellant’s residence in the early morning hours. Once there, they opened a metal screen
door. They then discharged a distractionary device through the front window of the
residence. R.J. then announced their presence and that they were serving a search
warrant. P.F. then breached the front door with a ram and D.K. entered the residence.
He was immediately met with gunfire and retreated back to the porch. After the gunfire
12.
ended, the team proceeded into the residence where they found appellant in a prone
position on the couch with his hands raised. Each officer identified appellant as the
individual who fired the weapon. Each officer also testified that no one touched the
doorknob prior to entering the residence.
{¶ 23} All of the officers utilized a security video of the incident to assist in
describing their testimony. Additionally, the state offered the testimony of investigators
to recreate the incident scene for the jury and show each victim’s proximity to appellant’s
gunfire. Detective Cousino also testified that appellant’s version of events was
impossible. During his investigation, Detective Cousino noted the bullets appellant fired
struck the outside of the door. He testified that this could only have occurred after the
door had been opened and the outside portion of the door was exposed to appellant inside
the residence. Had appellant fired the bullets prior to the door being opened, as appellant
previously stated, the bullets would have struck the inside of the door. Detective Cousino
testified that this scenario was impossible based on the physical evidence recovered from
the scene.
{¶ 24} In his own testimony, appellant does not deny firing a weapon. He stated,
however, that after he heard his front window shatter he saw his doorknob being turned.
He stated that he feared for his and his wife’s safety because a different window had been
broken late the previous evening and he thought that someone was now breaking into his
home. Appellant also attributed his action to his confused state as a side effect from
prescribed pain medication. Appellant stated that because of this confusion and his fear
13.
of harm from an intruder, he began firing a weapon at the door prior to its opening.
Appellant did not introduce any evidence or elicit testimony from an expert witness
regarding how his prescribed medication impacted his ability to perceive these events.
{¶ 25} On cross-examination, appellant conceded that he did not file a police
report for the window which was broken earlier in the night. He also acknowledged that
he did not discharge a firearm in response to the window breaking earlier. When
questioned about apparent inconsistencies in his testimony when compared to video of
the incident, appellant disputed the authenticity of the video and its accompanying audio.
Finally, despite his argument that he acted in self-defense, appellant stated during his
testimony “I wasn’t acting in self-defense.” Neither appellant nor his counsel made any
effort to explain or clarify this statement.
{¶ 26} Having reviewed the record, including the physical evidence and witness
testimony, we cannot say that the jury clearly lost its way and created a manifest
miscarriage of justice. We find the state presented substantial evidence supporting each
element of the felonious assault charges against defendant. Further, we do not find that
the jury lost its way in denying appellant’s claim of self-defense following his
inconsistent testimony. For these reasons, the jury’s verdict was not against the manifest
weight of the evidence and appellant’s second assignment of error is found not well-
taken.
14.
C. Costs
{¶ 27} Appellant’s third assignment of error argues the trial court erred in
imposing the costs of prosecution, court-appointed counsel fees, and costs of confinement
without first determining whether appellant had the ability, or would have the ability in
the future, to pay these costs. We agree, in part.
{¶ 28} The costs of prosecution are mandatory and their imposition against a
defendant is not conditioned on their ability to pay. State v. Lantz, 6th Dist. Fulton No.
F-18-011, 2019-Ohio-3307, ¶ 12, 18. The trial court properly imposed these mandatory
costs against appellant.
{¶ 29} However, appointed counsel fees and confinement costs are not mandatory
and “must be conditioned on appellant’s ability to pay.” State v. Wymer, 6th Dist. Lucas
No. L-18-1108, 2019-Ohio-1563, ¶ 14. Prior to imposing these non-mandatory costs,
“the trial court must affirmatively find that the defendant has, or reasonably may be
expected to have, the ability to pay.” Id.; State v. Grey, 6th Dist. Lucas No. L-15-1072,
2015-Ohio-5021, ¶ 21. While the court need not conduct a formal hearing as to the
defendant’s ability to pay these costs, a finding of his ability to pay must be supported by
clear and convincing evidence in the record.
Id. When the record on appeal contains no
evidence reflecting the trial court’s consideration of present or future ability to pay these
costs—such as consideration of defendant’s age, health, employment history, or level of
education—the imposition of these costs is improper and must be vacated. State v.
Stovall, 6th Dist. Lucas No. L-18-1048,
2019-Ohio-4287, ¶ 37.
15.
{¶ 30} Here, the trial court failed to make any finding regarding appellant’s ability
to pay the non-mandatory costs at his sentencing hearing. The trial court’s judgment
entry, however, reflects such a finding. Imposing these non-mandatory costs in the
sentencing entry without engaging in the necessary analysis to determine appellant’s
ability to pay them constitutes error. Wymer at ¶ 14. For that reason, appellant’s third
assignment of error is found well-taken, in part, as to the trial court’s imposition of
appointed counsel fees and confinement costs. We therefore vacate the imposition of
these costs. The imposition of the costs of prosecution remains undisturbed by this
decision.
II. Conclusion
{¶ 31} Appellant’s first and second assignments of error are found not well-taken.
Appellant’s third assignment of error is found well-taken, in part, and the trial court’s
imposition of appointed counsel and confinement costs are vacated. The June 15, 2018
judgment of the Lucas County Court of Common Pleas is affirmed, in part, and reversed
and vacated, in part, as described in this decision. Appellant and the state are ordered to
split the costs of this appeal pursuant to App.R. 24.
Judgment affirmed, in part, and
reversed and vacated, in part.
16.
State v. Hill
C.A. No. L-18-1160
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
17.
