State v. Hill

[Cite as State v. Hill, 

.]


                                COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                           No. 109727
                 v.                              :

RAYVON HILL,                                     :

                 Defendant-Appellant.            :


                                 JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: September 2, 2021


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-19-640674-C


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Kristin M. Karkutt, Assistant Prosecuting
                 Attorney, for appellee.

                 The Law Office of Donald Gallick L.L.C., and Donald M.
                 Gallick, for appellant.


FRANK D. CELEBREZZE, JR., P.J.:

                Appellant Rayvon Hill (“appellant”) appeals his convictions by the

Cuyahoga County Court of Common Pleas for murder, felonious assault, and

involuntary manslaughter, arguing that they were not supported by sufficient
evidence and were against the manifest weight of the evidence. After a thorough

review of the law and facts, we affirm the judgment of the trial court.

                        I. Factual and Procedural History

             Appellant, along with his codefendants James Harrison (“Harrison”)

and Antonio Tyler (“Tyler”), were accused of shooting and killing Mattayo Heard

(“Heard”) in the lot of an apartment complex located in Cleveland, Ohio. The

shooting occurred as the result of a fight that had broken out among a large number

of people. The evidence adduced at trial showed the following people were present:

      * Charmayne Gainer, a resident of the apartment complex and sister
      of appellant;

      * Appellant, who was visiting Charmayne, at the apartment complex;

      * Chauntrice Hill (“Chauntrice”), sister of appellant, who was also
      visiting Charmayne;

      * Camille Gainer, sister of appellant, who also came to see Charmayne;

      * Shadava Kizer (“Shadava”), who, along with her children S. and D.B.,
      were visiting Shadava’s sister, Shalanda, who resided at the apartment
      complex;

      * Harrison and Heard, friends of Shadava, who were in Harrison’s
      vehicle;

      * Dalilia Wright, who along with her daughter, A.Y., went to the
      apartment complex to visit Shadava; and

      * Tiffany Jones, a friend of Shadava’s, who was at the apartment
      complex just to “hang out.”

             On the day in question, Charmayne had arrived home from work to

observe Shadava’s vehicle in the parking lot. Charmayne testified that her daughter
had previously been bullied by Shadava’s daughter and niece. She had complained

to the leasing office of the apartment complex, and Shadava had been banned from

the premises.

             Charmayne took pictures of the vehicle and informed the leasing office.

Charmayne was able to overhear Shadava and her friends yelling about “busting out

[Charmayne’s] windows.” She called her sister Camille to inform her of what was

happening. Chauntrice was present with Camille and said that they were on their

way. Shortly thereafter, Camille and Chauntrice arrived, along with appellant and

several of Chauntrice’s friends. Subsequently, appellant’s friend Tyler and another

friend known as “Nephew” also arrived at the apartment complex.

             They all gathered inside Charmayne’s apartment and then decided to

go outside. A fight broke out between the people who gathered with Charmayne and

Shadava and her friends.      Charmayne testified that she observed a man hit

Chauntrice and that appellant had seen this as well, which caused appellant to jump

into the fight. Charmayne further stated that she saw a man in pink pants, who was

in a silver vehicle, begin shooting, which caused her, appellant, and several others

to retreat into the apartment building. While in the building, Charmayne retrieved

her firearm, a 9 mm Ruger, and went back outside. She then fired one shot toward

Shadava. Photographs and video footage from the scene depicted appellant walking

toward the silver vehicle, along with Chauntrice and Nephew, with a firearm in

appellant’s hand. Charmayne did not see appellant fire the weapon that day but

testified that he told her the next day that he had also fired his weapon.
             The crowd dispersed and police arrived. Charmayne did not tell the

officers that she had shot her weapon.

            Charmayne then hired an attorney for herself and appellant. She

arranged for the two of them, along with Chauntrice, to meet with the attorney;

however, appellant did not attend. A second meeting was held where appellant did

attend. Chauntrice secretly made a recording of this meeting, which was played at

trial. Charmayne testified that after the meeting, she learned that appellant and

Chauntrice were attempting to blame her for Heard’s murder. She then met with

homicide detectives and turned over her firearm, along with two magazines, her

case, and ammunition. The police were able to see that one bullet and casing were

missing from her container of ammunition.

             Harrison testified that on the day in question, he and Heard had visited

a liquor store and then drove to meet Shadava at the apartment complex. He and

Heard were in his vehicle, a silver Chrysler Sebring, smoking a blunt of marijuana

and drinking alcohol when they heard yelling by Shadava’s vehicle. He then

observed several people coming out to the parking lot from the apartment complex.

Harrison stated that he was aware of a feud involving Shadava.

             Harrison exited the vehicle with his firearm in hand; Heard remained

inside the vehicle. He identified himself in the video as shooting three warning shots

into the air. He then returned to his vehicle, when Heard yelled at him to drive away

and Harrison heard a gunshot. The video depicted an individual wearing a gray hat

walking toward Harrison’s car with a firearm, a .380-caliber handgun, in his hand.
Heard fell into Harrison’s lap, who then drove to Euclid Hospital for help. Harrison

spoke to officers at the hospital and was arrested for his involvement with the

incident.

              Harrison admitted to detectives that he fired his weapon during the

altercation. He was subsequently charged with two counts of felonious assault with

one- and three-year firearm specifications, one count of aggravated riot with one-

and three-year firearm specifications, and one count of improperly handling a

firearm in a motor vehicle. Prior to his testimony, Harrison accepted a plea to one

count of attempted felonious assault with firearm specifications, aggravated riot,

and improperly handling a firearm in a motor vehicle.

             Cleveland Police Sgt. Aaron Reese was assigned to investigate Heard’s

death. Sgt. Reese responded to the scene and spoke with building management who

provided him with several photographs of the parking lot that they had received

from Charmayne on the day of the shooting. Sgt. Reese also obtained and reviewed

two cell phone videos that captured the events in question. Sgt. Reese further

explained that after reviewing the video evidence and DNA reports, he was able to

identify appellant as the individual who was wearing the gray hat that had been

recovered in the parking lot. After identifying appellant as a suspect, Sgt. Reese

interviewed appellant at the homicide unit. This interview had been recorded and

was played for the jury. Sgt. Reese testified that during his two-hour interview with

appellant, appellant had told him approximately 20 times that he had only fired one
shot during the altercation. Sgt. Reese testified that at the end of the interview,

appellant had changed his story and admitted that he had fired a second shot.

              Edward Lattyak (“Lattyak”), the firearms and tool mark section

supervisor for the Cuyahoga County Medical Examiner’s Crime Laboratory, also

testified on behalf of the state. Lattyak testified that, in connection with this

investigation, he received for testing a total of six spent or discharged shell casings,

three of which were 9 mm caliber and the other three were .380-caliber. Lattyak

also received two firearms for examination and comparison: one .380-caliber

firearm and one 9 mm Ruger. Based upon his examination, Lattyak concluded that

the three .380-caliber spent shell casings were fired from the .380-caliber firearm

that was submitted under this investigation.         Lattyak testified that when he

examined the three 9 mm casings, he observed that each one of them was from a

different brand — CBC, Frontier, and RP. Lattyak testified that he compared the

three spent 9 mm casings recovered from the scene to the submitted 9 mm Ruger

and concluded that only one, the 9 mm CBC brand casing, was fired from that

firearm. Lattyak further determined that the other two spent 9 mm casings were

not discharged by either of the two submitted firearms, but they were discharged

from the same unrecovered firearm.

              Cleveland Police Officer Dan McCandless testified that he had arrived

on the scene at the apartment complex and observed shell casings in the parking lot.

Officer McCandless was then dispatched to Euclid Hospital for an individual with

gunshot wounds. When he arrived at the hospital, he observed several Euclid police
officers standing around a silver vehicle located by the main entrance of the hospital

ER. A black male was sitting on the curb by the vehicle. Officer McCandless spoke

with this individual, who was identified as Harrison. As he spoke with Harrison, he

learned that he and the nearby vehicle had been involved in the incident at the

apartment complex at 16151 Lakeshore Boulevard.

              Appellant was indicted on six counts, consisting of charges for murder,

felonious assault, involuntary manslaughter, aggravated riot, and having weapons

while under disability, along with accompanying firearm specifications. Appellant

was convicted by a jury of murder (two counts), felonious assault, involuntary

manslaughter, and aggravated riot. Appellant had waived his right to a jury on the

charge of having weapons while under disability, and the court found him guilty on

that count.

              Appellant filed the instant appeal, raising four assignments of error for

our review:

      1. The trial court erred by denying the Crim.R. 29 motion because the
      murder and felonious assault convictions were not supported by
      sufficient evidence as to the element of causation and the mental state
      of “knowingly.”

      2. The trial court erred by denying the Crim.R. 29 motion because the
      conviction for involuntary manslaughter was not supported by
      sufficient evidence as to the element of causation.

      3. The convictions for murder and felonious assault are against the
      manifest weight of the evidence as causation and mens rea were not
      proven beyond a reasonable doubt.
      4. The conviction for involuntary manslaughter is against the manifest
      weight of the evidence because the evidence failed to prove beyond a
      reasonable doubt that defendant caused the death of the victim.

                               II. Law and Analysis

                          A. Sufficiency of the Evidence

              Because appellant’s assignments of error are interrelated, we will

address them together.

             Appellant first argues that his convictions for murder, felonious

assault, and involuntary manslaughter were not supported by sufficient evidence

with regard to the element of causation.

              Crim.R. 29 mandates that the trial court issue a judgment of acquittal

where the prosecution’s evidence is insufficient to sustain a conviction for the

offense. Crim.R. 29(A) and sufficiency of the evidence require the same analysis.

State v. Taylor, 8th Dist. Cuyahoga No. 100315, 

. “An appellate

court’s function when reviewing the sufficiency of the evidence to support a criminal

conviction is to examine the evidence admitted at trial to determine whether such

evidence, if believed, would convince the average mind of the defendant’s guilt

beyond a reasonable doubt.” State v. Driggins, 8th Dist. Cuyahoga No. 98073,

, citing State v. Thompkins, 

, 

 (1997).

              The relevant inquiry is whether, after viewing the evidence in a light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt. State v. Vickers,
8th Dist. Cuyahoga No. 97365, 

, citing State v. Jenks, 

, 

 (1991).

              In support of his argument regarding causation, appellant asserts that

there were three shooters — Charmayne, Harrison, and himself — and that which

person actually fired the round that killed Heard was not proven beyond a

reasonable doubt. In addition, appellant contends that Harrison was intoxicated

and testified that he shot three times “into the air”; however, another witness

testified that Harrison fired four shots. Finally, appellant further argues that the

forensic testimony failed to show that he fired the bullet that caused Heard’s death.

              The state argues that appellant’s argument that it is unknown who

fired the fatal shot ignores the timing of the shots, as evidenced by testimony and

videos of the incident. Harrison’s three shots into the air occurred before he was in

the vehicle with Heard. Harrison initially fired his weapon, a .380-caliber firearm,

into the air to disperse the fighting crowd. He then went back to his car where Heard

was sitting and started to drive away. While attempting to drive out of the parking

lot, Harrison heard a gunshot, and Heard fell over into his lap.

              With regard to the possibility of Charmayne as Heard’s shooter,

Charmayne testified and admitted she fired one shot from her weapon, a 9 mm

Ruger, in the direction of Shadava’s vehicle. Charmayne testified that Harrison’s

silver Sebring was initially parked near Shadava’s vehicle, but later moved further

down. Charmayne’s shell casing was found furthest from where Heard was shot.
              The state also asserts that a total of six spent shell casings and two live

rounds of ammunition were found on scene during the investigation. Three of the

six casings were .380-caliber and the remaining three were 9 mm caliber. Based on

this evidence, the state maintains that the three warning shots fired by Harrison are

accounted for. Further, Charmayne admitted to firing one of the 9 mm shots.

According to testimony from the firearms and tool mark section supervisor for the

Cuyahoga County Medical Examiner’s Crime Laboratory, three spent 9 mm casings

were recovered from the scene, but only one, the 9 mm CBC brand casing, was fired

from the 9 mm Ruger recovered from Charmayne. The other two 9 mm casings,

although two different brands, were determined to have been discharged from the

same unrecovered firearm. These other two shell casings were found closest to the

location where the victim was killed. According to Sgt. Reese’s testimony, appellant

stated approximately 20 times that he had only fired one shot during the altercation.

However, at the end of the interview with Sgt. Reese, appellant admitted that he had

fired a second shot.

              While appellant argues that the forensic evidence did not prove that

he fired the fatal shot, we note that Ohio law does not require forensic evidence to

sustain a conviction. “This court has long held that circumstantial evidence is

sufficient to sustain a conviction if that evidence would convince the average mind

of the defendant’s guilt beyond a reasonable doubt.” State v. Heinish, 

, 

 (1990).
              Viewing the evidence in a light most favorable to the state, as we must,

we find that sufficient evidence existed to prove that appellant was responsible for

the shot fired from the unrecovered gun in the direction of Harrison’s vehicle, which

struck and killed Heard. We therefore hold that the trial testimony and video

footage were sufficient for a rational trier of fact to find the causation element was

proven in appellant’s convictions for murder, felonious assault, and involuntary

manslaughter.

              Appellant further contends that his convictions for murder and

felonious assault were not supported by sufficient evidence with regard to the

mental state of “knowingly.” However, we find that appellant’s brief did not present

any argument or authority in support of this proposition. App.R. 16(A) requires a

party to separately argue each assignment of error, and under App.R. 12(A)(2), an

appellate court may disregard any assignment of error, or portion thereof, if the

appellant fails to make a separate argument.        Cleveland v. Taylor, 8th Dist.

Cuyahoga No. 109371, 

, citing State v. Wells, 8th Dist.

Cuyahoga No. 98388, 

.

              Accordingly, because appellant failed to present any argument or

citations to authority with regard to the knowingly element of his murder and

felonious assault convictions, these assertions shall be disregarded.

              Appellant’s first and second assignments of error, related to

sufficiency of the evidence, are overruled.
                       B. Manifest Weight of the Evidence

              Appellant makes the same assertions regarding causation and

knowingly with regard to his manifest weight of the evidence argument.

              In State v. Wilson, 

, 

, 

, ¶ 25, the Supreme Court of Ohio 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), 

, 

. 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. 

, 

. 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
      evidences effect of inducing belief. 

, 

. In
      other words, a reviewing court asks whose evidence is more persuasive
      then 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. 

,
      

. “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.” 

, 

, citing Tibbs v. Florida (1982), 

, 

, 

.

              An appellate court may not merely substitute its view for that of the

jury, but must find that “in resolving conflicts in the evidence, the jury clearly lost

its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.” 

. Accordingly, reversal on

manifest weight grounds is reserved for “the exceptional case in which the evidence

weighs heavily against the conviction.” 

              We find that, after reviewing the record and for the reasons set forth

above, the jury did not lose its way and create a manifest miscarriage of justice.

Appellant’s third and fourth assignments of error, related to manifest weight of the

evidence, are overruled.

                                    III. Conclusion

              Appellant’s convictions were supported by sufficient evidence and

were not against the manifest weight of the evidence. All of appellant’s assignments

of error are overruled, and the judgment of the trial court is affirmed.

              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

convictions having been affirmed, any bail pending 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.


                                        __
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and
EMANUELLA D. GROVES, J., CONCUR