[Cite as State v. Hicks, 2014-Ohio-5630.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-14-19

        v.

LLOYD V. HICKS,                                           OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 13 CR 0166

                                      Judgment Affirmed

                          Date of Decision: December 22, 2014




APPEARANCES:

        Kent D. Nord for Appellant

        Brian O. Boos for Appellee
Case No. 13-14-19


SHAW, J.

       {¶1} Defendant-appellant Lloyd V. Hicks (“Hicks”) appeals the June 12,

2014 judgment of the Seneca County Common Pleas Court sentencing Hicks to

serve an aggregate prison term of 17 years after Hicks was found guilty in a jury

trial of two counts of Felonious Assault in violation of R.C. 2903.11(A)(2),

(D)(1)(a), both felonies of the first degree and both containing specifications that

Hicks discharged a firearm at a peace officer while committing the offense, one

count of Abduction in violation of R.C. 2905.02(A)(2),(C), a felony of the third

degree,   and   one   count    of   Aggravated    Arson   in   violation   of   R.C.

2909.02(A)(1),(B)(2), a felony of the first degree.

       {¶2} The facts relevant to this appeal are as follows. On October 9, 2013,

Hicks was indicted for two counts of Felonious Assault in violation of R.C.

2903.11(A)(2), (D)(1)(a), both felonies of the first degree and both containing

specifications that Hicks discharged a firearm at a peace officer while committing

the offenses, one count of Abduction in violation of R.C. 2905.02(A)(2),(C), a

felony of the third degree, and one count of Aggravated Arson in violation of R.C.

2909.02(A)(1),(B)(2), a felony of the first degree. The charges stemmed from

incidents all occurring on September 5, 2013.

       {¶3} On November 8, 2013, Hicks was arraigned and entered pleas of Not

Guilty and Not Guilty by Reason of Insanity to the charges against him. (Doc.


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13). As a result, the trial court ordered a competency evaluation of Hicks, which

was done, and then the trial court held a hearing as to Hicks’s competency. Hicks

was ultimately determined to be competent to stand trial. (Doc. 21).

        {¶4} Hicks then requested a second competency evaluation, which was

granted by the trial court, and Hicks was again found to be competent following a

hearing. (Doc. 29). After both competency evaluations, Hicks withdrew his plea

of Not Guilty by Reason of Insanity and pled Not Guilty to the charges against

him.

        {¶5} The case then proceeded to a jury trial, which was held June 9-10,

2014. At trial the State first called Donna Hicks, Hicks’s wife of 23 years. Donna

testified that in the weeks and months prior to September 5, 2013, she and Hicks

had been having marital issues. (Tr. at 148). Donna testified that a tornado had

damaged their residence and that their basement had been flooded so they were

having the house repaired, which was a frequent source of argument between

them. (Id.) Donna testified that Hicks accused Donna of being in a relationship

with the contractor, and accused her of being “in cahoots” with him when the

repairs were delayed. (Id.) Donna testified that Hicks was irritated with the delay

in the home repairs and that he had become verbally abusive toward her. (Tr. at

148).




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        {¶6} Donna testified that on the morning of September 5, 2013, she was

leaving for work and noticed that Hicks had placed two gas cans in her car. (Tr. at

149). Donna testified that she and Hicks owned two acres of land and used a lot of

gas for their tractor so Hicks would regularly put the empty gas cans in her car and

she would fill them and bring them back for him. (Tr. at 149). Donna testified

that she filled up the two gas cans Hicks had placed in her car and returned them

on her lunch break from work. (Tr. at 150). Donna testified that she placed the

two gas cans in the shed that day and saw that there were four total. (Tr. at 150-

151). She testified that she then went into the kitchen to eat her lunch. (Tr. at

151).

        {¶7} Donna testified that as she ate her lunch, Hicks came in from outside

and started a conversation about the roof and how the contractor was “ripping

[them] off.” (Tr. at 152). Donna testified that Hicks became upset, threw his hat,

and knocked her pop onto her sandwich. (Tr. at 152). Donna testified she then

decided to go back to work. (Id.) Donna testified that Hicks told her she had an

hour for lunch and she was not going anywhere because they needed to talk about

the repair issues. (Id.) Donna testified that she then went outside to smoke and

Hicks followed. (Tr. at 153). Donna testified that she tried to leave, which

resulted in her and Hicks engaging in a “slap and punch fest,” where her glasses

were ultimately knocked off and she walked away. (Id.)


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       {¶8} Donna testified that Hicks made the comment that “nobody is here to

help you” and that she was afraid of him at the time. (Tr. at 153). Donna also

testified that Hicks took her phone and threw it in the front yard and told her she

only uses the phone to “call [her] boyfriends” and that she was not going to use the

phone to call for help. (Tr. at 154). Donna testified that Hicks then went into the

garage and got a sledgehammer and smacked it into the ground. (Tr. at 155). She

testified that she thought Hicks was smashing her phone. (Tr. at 155). Donna

testified that Hicks then made a comment that they could pull the cars into the

garage, and he could shoot her, set the house on fire, and then kill himself. (Tr. at

155-156). Donna testified that Hicks said he did not believe in God and that

“[t]oday was the day and this was the end of it.” (Tr. at 155).

       {¶9} Donna testified that she then again tried to leave, but Hicks grabbed

her and tried to pull her toward the house. (Tr. at 156). Donna testified that Hicks

had a hold of both her arms and smacked her. (Id.) She testified that she kicked

him and Hicks said that she kicked “like a little bitch,” so he then kicked her back

and pulled her four feet toward the garage. (Id.) Donna testified that she then

kicked Hicks twice in the groin and got away from him to her car. (Id.) Donna

testified that another brief struggle ensued at her car, but she soon got away and

drove back to work. (Tr. at 157).




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       {¶10} Donna testified that when she got back to work she told her

coworkers what had happened and that she was afraid of Hicks, so her co-worker

contacted security and the police were then called. (Tr. at 157-158). Donna

testified that she was then taken to the police station, where she heard over the

radio about a fire occurring at her home. (Tr. at 159).

       {¶11} Donna testified that as a result of the altercation with Hicks the side

of her face was black and blue, there was a twitch in her eye, and her vision was

blurry. (Tr. at 160).

       {¶12} The State next called Sharon Fuchs, who was a neighbor of Hicks

and Donna. Fuchs testified that on September 5, 2013, she went to lunch with her

daughter around 12:30 or 1:00 p.m. and saw billowing smoke coming out of the

Hicks’ home. (Tr. at 180). Fuchs testified that Donna’s car was gone and that

Hicks was under the pavilion pacing. (Tr. at 180). Fuchs testified that she said to

Hicks the house was on fire and Hicks said “I know get the F away.” (Tr. at 181).

       {¶13} The State next called Detective E. Burt of the Bellevue Police

Department.     Detective Burt testified that he was dispatched to the Hicks

residence, which was engulfed in flames. (Tr. at 188). Detective Burt testified

that upon arrival he was informed by the firemen who were already on the scene

that they could not do their job because of a man in the backyard with a firearm.




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(Tr. at 188). Detective Burt testified that he then observed Hicks in a chair with a

handgun in his lap in the backyard. (Tr. at 189).

       {¶14} Detective Burt testified that Officer Trego arrived on the scene

minutes later, and that together they attempted to approach Hicks. (Tr. at 190).

Detective Burt testified that while they approached Hicks, he heard someone yell

“get away” and then he heard a shot fired, which went to his left. (Tr. at 194).

Detective Burt testified that he heard the bullet go through the grass roughly ten to

fifteen feet from him. (Tr. at 194). Detective Burt testified that Officer Trego

yelled “he shot at us” and that they then retreated to call for backup due to Hicks

shooting, and the presence of a propane tank nearby that was potentially in danger

of exploding from the fire. (Tr. at 194-195).

       {¶15} The State next called Officer Todd Trego of the Bellevue Police

Department. Officer Trego testified that he was originally dispatched to the Home

Savings Bank where Donna worked to speak with her and take her to the Bellevue

Police Department. (Tr. at 211). Officer Trego testified that he was subsequently

dispatched to the Hicks’ home, where he was advised by Detective Burt that a man

with a gun was in the backyard. (Tr. at 212).

       {¶16} Officer Trego testified that he and Detective Burt attempted to make

contact with Hicks, so they walked between the house that was on fire and the next

door neighbor’s house toward a shed using it as cover. (Tr. at 212). Officer Trego


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testified that Detective Burt was on his right and that he noticed a propane tank

approximately 10-15 feet from the house and was worried about an explosion.

(Tr. at 212). Officer Trego testified that upon noticing the propane tank, he and

Detective Burt discussed whether to get closer. (Tr. at 213). Officer Trego

testified that as they were discussing whether to get closer, Hicks shouted to “get

back” or “get away.” (Tr. at 213). Officer Trego testified that he then saw Hicks

fire a gun right in their direction, saw the muzzle flash, and heard a possible round

strike the grass nearby. (Tr. at 213). Officer Trego testified that he and Detective

Burt then decided to retreat. (Id.)

       {¶17} The State next called Deputy Mark Lawson of the Seneca County

Sheriff’s Office. Deputy Lawson testified that he was dispatched to the Hicks’

residence for the house fire and that upon his arrival fire trucks were present but

could not begin to help because of Hicks having a gun. Deputy Lawson testified

that he exited his cruiser in a different area of the property than where Detective

Burt and Officer Trego had approached Hicks. Deputy Lawson testified that as he

exited his cruiser, Hicks pointed his gun at him and fired it, so Deputy Lawson got

back in his cruiser and backed up to a safer location and called in the shot. (Tr. at

229-230). Deputy Lawson testified that it was “absolutely not” a warning shot.

(Tr. at 239). Deputy Lawson testified that he heard a second shot as he exited the

cruiser but he did not see it, and that the shots were ten to fifteen seconds apart.


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(Tr. at 237). Deputy Lawson testified that he then got his M-16 out of his vehicle

but he did not fire it because Hicks did not point his gun at him again. (Tr. at

230).

           {¶18} Deputy Lawson testified that after an hour of negotiation, Hicks put

his weapon down and was taken to jail. Deputy Lawson testified that he was the

officer who took Hicks to jail, and that he noticed Hicks had burnt hair on his

forearm, abrasions on his right hand ring finger, and burnt hair on the back of his

head. (Tr. at 232).

           {¶19} On cross-examination Deputy Lawson testified that while he was on

the Hicks’ property he heard loud noises coming from inside the house fire that he

thought were rounds of ammunition popping off.1 (Tr. at 235). However, Deputy

Lawson testified that it was not possible that the shots that were fired at him were

simply rounds popping off in the basement of the home. (Tr. at 236).

           {¶20} The State next called Sheriff W. Eckelberry, the Seneca County

Sheriff. Sheriff Eckelberry testified that he was dispatched for the house fire and a

subject with a weapon. (Tr. at 244). He testified that when he arrived, Hicks was

in the backyard, east of the residence sitting in a lawn chair. (Tr. at 245). Sheriff

Eckelberry testified that he shut down the road near the property, and then talked

to Hicks over the PA system. (Tr. at 247). Sheriff Eckelberry testified that he



1
    Testimony established that Hicks had various guns and ammunition in the basement of the home.

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corresponded with Hicks and eventually got Hicks to put his gun down and walk

back to a police car with him. (Tr. at 247).

       {¶21} The State next called Deputy Craig Robbins from the Seneca County

Sheriff’s Office. Deputy Robbins testified that he located a spent casing near

where Hicks had been in the yard. (Tr. at 254). Deputy Robbins testified that the

casing matched the rounds in the gun Hicks had been using. (Tr. at 273).

       {¶22} The State next called Kevin Reinbolt, a Detective with the Seneca

County Sheriff’s Office. Detective Reinbolt testified that he recovered a second

shell casing from the scene that matched Hicks’s firearm. (Tr. at 289). Detective

Reinbolt also testified that heat from the fire could be felt 20-30 feet away, and

that the combustion of the fire blew the front door out. (Tr. at 295).

       {¶23} In addition, Detective Reinbolt testified that he interviewed Hicks at

the Sheriff’s office. The video of that interview was played for the jury, which

included Hicks stating that Donna was the main aggressor in their altercation, and

that Hicks had Parkinson’s disease. (State’s Ex. 12). Hicks stated in the interview

that shots had probably been fired in the area where shell casings were found

because he had been shooting at coyotes. (Id.) The video showed Hicks saying

that he remembered watching the house burn on the date of the incidents thinking

“What’d I do?” (Id.) During the interview Hicks also said that Donna would not

know anything about the fire because she left. (Id.)


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       {¶24} The last witness called by the State was Donald Illig an Arson

Investigator with the Fire Marshall’s Office.       Donald Illig testified that he

determined that the fire to the home had been intentionally set. (Tr. at 334). He

also testified that the fire was a risk to the people looking to help, to the

firefighters and the police officers on scene due to the amount of smoke, the

ammunition in the basement that was popping off, and the propane tank outside

the home, which posed a “significant threat” to cause an explosion that could send

shrapnel hundreds of feet. (Tr. at 335-337).

       {¶25} At the conclusion of Illig’s testimony the State rested its case and

Hicks made a Crim.R. 29 motion for acquittal, which was denied by the trial court.

Hicks then specifically stated that he did not want an instruction on lesser included

offenses. Subsequently the parties proceeded to closing arguments and the court

gave final instructions to the jury. The case was then submitted to the jury for

deliberation.

       {¶26} Ultimately the jury found Hicks guilty of both counts of Felonious

Assault in violation of R.C. 2903.11(A)(2), (D)(1)(a), both felonies of the first

degree, and the jury found Hicks guilty of the specifications on each of the two

counts that Hicks discharged a firearm at a peace officer while committing the

offenses.   Hicks was also found guilty of Abduction in violation of R.C.

2905.02(A)(2),(C), a felony of the third degree, and he was found guilty of


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Aggravated Arson in violation of R.C. 2909.02(A)(1),(B)(2), a felony of the first

degree. The trial court set sentencing for the following day.

       {¶27} On June 12, 2014, Hicks’s sentencing hearing was held. At the

sentencing hearing, the State recommended that Hicks serve an aggregate 20 year

prison sentence. Hicks’s attorney made a statement in mitigation, and then Hicks

spoke on his own behalf. After hearing the statements of the parties, the court

sentenced Hicks to serve 10 years in prison on Count 1 Felonious Assault, and 7

years for the firearm specification, to be served consecutively. Hicks was ordered

to serve 10 years on Count 2, Felonious Assault, and 7 years on the firearm

specification. Hicks was ordered to serve 12 months on Count 3, Abduction, and

10 years on Count 4 Aggravated Arson. All counts were ordered to be served

concurrent to each other, with the sole exception of the Felonious Assault in Count

1 and the firearm specification in Count 1, for an aggregate prison term of 17

years. A judgment entry reflecting this sentence was filed that same day, June 12,

2014. (Doc. 58).

       {¶28} It is from this judgment that Hicks appeals, asserting the following

assignment of error for our review.

                   ASSIGNMENT OF ERROR 1
       THE CONVICTION IN THE TRIAL COURT SHOULD BE
       REVERSED BECAUSE THE EVIDENCE AND THE
       DECISION WAS AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE AND BECAUSE THE EVIDENCE
       SUPPORTING IT WAS INSUFFICIENT AS A MATTER OF

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       LAW TO PROVE THE                 CONVICTIONS          BEYOND       A
       REASONABLE DOUBT.

       {¶29} In his assignment of error, Hicks contends that there was insufficient

evidence to convict him of two counts of Felonious Assault and the accompanying

specifications that he discharged a firearm at a peace officer in committing the

offenses, that there was insufficient evidence to convict him of one count of

Abduction and that there was insufficient evidence to convict him of one count of

Aggravated Arson. In addition, Hicks argues that his convictions were against the

manifest weight of the evidence.

                               Standard of Review

       {¶30} Whether there is legally sufficient evidence to sustain a verdict is a

question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency

is a test of adequacy. Id. When an appellate court reviews a record upon a

sufficiency challenge, “ ‘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. Leonard, 104 Ohio St.3d 54, 2004–Ohio–6235, ¶

77, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the

syllabus.

       {¶31} The Ohio Supreme Court has “carefully distinguished the terms

‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and

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‘legal sufficiency’ are ‘both quantitatively and qualitatively different.’ ” Eastley v.

Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, ¶ 10, quoting State v. Thompkins,

78 Ohio St.3d 380 (1997), paragraph two of the syllabus.

       {¶32} Unlike our review of the sufficiency of the evidence, an appellate

court’s function when reviewing the weight of the evidence is to determine

whether the greater amount of credible evidence supports the verdict. Volkman,

supra, at ¶ 12; Thompkins, supra, at 387. In reviewing whether the trial court’s

judgment was against the weight of the evidence, the appellate court sits as a

“thirteenth juror” and examines the conflicting testimony. Thompkins at 387. In

doing so, this Court must review the entire record, weigh the evidence and all of

the reasonable inferences, consider the credibility of witnesses, and determine

whether 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.’ ” State v. Andrews, 3d Dist. No. 1–05–70,

2006–Ohio–3764, ¶ 30, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st

Dist.1983). Because reversals based upon the manifest weight are for exceptional

circumstances, as the Ohio Supreme Court held in Thompkins, Section 3(B)(3),

Article IV of the Ohio Constitution mandates the unanimous concurrence of all

three judges on the reviewing panel to reverse a defendant’s conviction.

Thompkins at 389.


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                                1. Felonious Assaults

       {¶33} In this case Hicks was convicted of two counts of Felonious Assault

in violation of R.C. 2903.11(A)(2),(D)(1)(a), which reads “No person shall

knowingly * * * [c]ause or attempt to cause physical harm to another * * * by

means of a deadly weapon or dangerous ordnance. * * * If the victim * * * is a

peace officer * * * felonious assault is a felony of the first degree.”       Both

felonious assault counts contained specifications under R.C. 2941.1412, which

requires the State to establish that “the offender discharged a firearm at a peace

officer * * * while committing the offense.”

       {¶34} On appeal, Hicks argues that there was insufficient evidence to

support his Felonious Assault convictions and the accompanying specifications,

and that the convictions were against the weight of the evidence. Specifically,

Hicks contends that none of the officers witnessed Hicks shooting at the other

officers, that none of the officers saw a “muzzle flash” from the gun, that none of

the officers saw any recoil on the gun when it was fired, and that no cartridge was

found in the chamber when the firearm was “made safe” by Deputy Robbins.

Despite Hicks’s contention, ample testimony was presented by the officers at trial

from which the trier-of-fact could determine that Hicks had fired his gun at the

police officers in both separate incidents.




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           {¶35} The first Felonious Assault conviction was related to the bullet that

Hicks fired at Detective Burt and Officer Trego.                           Regarding that incident,

Detective Burt testified that when Officer Trego arrived on scene, he and Officer

Trego attempted to approach Hicks in the backyard of his home. Detective Burt

testified that while approaching Hicks, he heard Hicks yell “get away” and then he

heard a shot fired, which Detective Burt testified went roughly ten to fifteen feet to

his left.

           {¶36} Officer Trego testified that he actually saw Hicks point the gun right

in their direction and fire. He testified, “[Hicks] basically shouted either get back

or get away, raised his hand, I saw a gun in his hand, fired off the shot, saw the

muzzle flash, and then heard what I thought was possibly a round striking to our

left-hand side in the grass.” (Tr. at 213). Officer Trego testified specifically that

he saw Hicks point the gun “right [in] our direction and fire[] a round[.]” (Id.)

Thus Officer Trego explicitly testified that Hicks aimed the gun at him and

Detective Burt, and that he observed Hicks fire the weapon. Corroborating the

officers’ testimony, spent shell casings were recovered in the area where Hicks

was positioned with his weapon in the backyard while the residence was burning.2

Officer Trego’s testimony also directly undermines Hicks’s claim that none of the

officers witnessed a muzzle flash from the weapon.



2
    The weapon itself was also recovered, and the casings matched the rounds in the gun.

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         {¶37} When viewing the evidence presented in the light most favorable to

the prosecution, we cannot find that insufficient evidence was presented to convict

Hicks on this count of Felonious Assault or the accompanying specification.

         {¶38} In arguing that his conviction was against the weight of the evidence,

Hicks makes a number of claims essentially contending that the police did not

conduct enough investigation to see if Hicks had fired his weapon such as

swabbing his palms or checking the firearm for a round in the chamber. However,

there was no testimony indicating that there was not a round in the chamber of the

weapon when it was recovered and there was direct evidence provided by Officer

Trego that Hicks fired the gun directly at the officers. On the basis of the evidence

presented, we cannot find that Hicks’s conviction for Felonious Assault and the

accompanying specification against Detective Burt/Officer Trego was against the

weight of the evidence. Therefore, Hicks’s argument on this issue is not well-

taken.

         {¶39} Hicks’s second Felonious Assault conviction was related to the bullet

he fired at Deputy Mark Lawson. Deputy Lawson testified that as he arrived on

the Hicks’ property and got out of his vehicle, Hicks “pointed his gun at [him] and

fired.” (Tr. at 229-230). Deputy Lawson testified that he actually saw Hicks point

his gun at him, and that it was “absolutely not” a warning shot. (Tr. at 239).

When viewing Deputy Lawson’s testimony in the light most favorable to the


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prosecution, we cannot find that there was insufficient evidence to convict Hicks

of Felonious Assault and the accompanying specification.

       {¶40} Hicks attempts to argue that his conviction was against the weight of

the evidence by contending again that the State did not prove Hicks had actually

fired the gun, arguing rather that the sound of gunfire could have been rounds of

ammunition that were in the house fire popping off from the basement.          In

addition, Hicks argues that Deputy Lawson did not testify to seeing a muzzle flash

when the gun was fired. However, Deputy Lawson specifically testified that

Hicks fired the gun at him and that it was not possible that the gunshots he heard

were from rounds popping in the basement. (Tr. at 236). On the basis of Deputy

Lawson’s testimony we cannot find that the factfinder clearly lost its way on this

issue. Therefore Hicks’s arguments as to his Felonious Assault convictions and

the accompanying specifications are not well-taken.

                                  2. Abduction

       {¶41} Hicks was also convicted of Abduction in violation of R.C.

2905.02(A)(2), which reads, “No person, without privilege to do so, shall

knowingly * * * [b]y force or threat, restrain the liberty of another person under

circumstances that create a risk of physical harm to the victim or place the other

person in fear[.]”




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       {¶42} On appeal, Hicks argues that there was insufficient evidence to

support the conviction for Abduction, and that his conviction was against the

weight of the evidence. Specifically, Hicks contends that there were no witnesses

to corroborate Donna’s story, and that the evidence did not indicate that Donna

was in fear of Hicks.

       {¶43} Despite Hicks’s arguments, Donna testified that Hicks prevented her

from leaving her house on the date of the incident not once, but twice. The second

time Donna testified that Hicks physically pulled Donna several feet toward the

garage, restraining her from leaving. Donna also testified that Hicks physically

struck her, that he also kicked her, and that she was in fear of him. Donna testified

that she had to physically kick Hicks in the groin twice to ultimately get away

from him. As a result of the incident, Donna testified that she had bruises and

blurry vision.

       {¶44} Thus not only did Donna testify that she was in fear of Hicks, she

also testified that she was physically harmed by him, which goes even further than

what is necessary under the Abduction statute. All that is required under the

statute to prove Abduction is that the victim be subjected to a risk of physical

harm or be in fear. Here, not only was there a risk of physical harm in this

instance, but there was actual physical harm.




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       {¶45} When viewing the evidence in the light most favorable to the

prosecution, we cannot find that that there was insufficient evidence presented to

convict Hicks of Abduction of Donna.

       {¶46} In arguing that his conviction for Abduction was against the weight

of the evidence, Hicks challenges Donna’s credibility stating that her actions were

not consistent with a woman in fear. However, as previously noted, placing the

victim in fear is only one possible path to Abduction, and physical harm was

present here. Nevertheless, Donna specifically testified that she was in fear of

Hicks and the jury was free to judge her credibility and her actions. Therefore, we

cannot find that his conviction was against the weight of the evidence.

Accordingly, Hicks’s argument on this issue is not well-taken.

                               3. Aggravated Arson

       {¶47} Hicks was also convicted of Aggravated Arson in violation of R.C.

2909.02(A)(1), which reads, “No person, by means of fire or explosion, shall

knowingly * * * [c]reate a substantial risk of serious physical harm to any person

other than the offender[.]”

       {¶48} On appeal, Hicks argues that there was insufficient evidence to

support his conviction for Aggravated Arson and that his conviction was against

the weight of the evidence. Hicks’s sole argument against his conviction seems to




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be that the arson investigator, and also the jury, did not take into account the

possibility that Donna could have set the fire.

       {¶49} Hicks attempts to establish motive for Donna as a potential suspect

for starting the fire, pointing out that Donna had picked up some of the gasoline

that day, that Donna later filed for divorce from Hicks and that Donna eventually

contacted the insurance company to try and get reimbursed for some of the losses

from the fire. However, Donna testified that picking up gasoline for Hicks was

routine, that she was not fully reimbursed for all of the losses from the fire, and

that she had contemplated divorce even before the September 5, 2013 incidents.

       {¶50} Moreover, Hicks’s argument ignores his own statements made in an

interview with the police where Hicks stated that Donna would not know anything

about the fire because she left. (State’s Ex. 12). Hicks also made the statement in

his interview with the police that he remembered thinking “What’d I do?” as he

watched the house burn.

       {¶51} In addition, Donna testified to threats that Hicks had made on the day

of the incident regarding burning down the house. Donna testified that Hicks

threatened to burn the house down and threatened to burn it to the ground before

he let anyone else have it.       Furthermore, when Hicks finally submitted to

authorities, he had various burns on his body indicating proximity to the fire.

Thus on the basis of the evidence presented we cannot find that there was


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insufficient evidence to convict Hicks, or that his conviction was against the

weight of the evidence. His argument on this issue is, therefore, not well taken.

       {¶52} Accordingly, having found no error prejudicial to Hicks in the

particulars assigned, Hicks’s assignment of error is overruled.

       {¶53} For the foregoing reasons Hicks’s assignment of error is overruled

and the judgment of the Seneca County Common Pleas Court is affirmed.

                                                                  Judgment Affirmed

ROGERS and PRESTON, J.J., concur.

/jlr




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