[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
