[Cite as State v. Hill, 2013-Ohio-717.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

STATE OF OHIO                                     :
                                                  :     Appellate Case No. 25172
        Plaintiff-Appellee                        :
                                                  :     Trial Court Case No. 11-CRB-730
v.                                                :
                                                  :     (Criminal Appeal from Montgomery
ANTHONY A. HILL                                   :     (County Municipal Court –
                                                  :     (Western Division)
        Defendant-Appellant               :
                                                  :
                                               ...........

                                              OPINION

                               Rendered on the 1st day of March, 2013.

                                               ...........

GREGORY P. SPEARS, Atty. Reg. #0009002, Montgomery County Municipal Court –
Western Division Prosecutor’s Office, 195 South Clayton Road, New Lebanon, Ohio 45345
      Attorney for Plaintiff-Appellee

MICHAEL C. THOMPSON, Atty. Reg. #0041420, Wight-Dunbar Business Village, 5 North
Williams Street, Dayton, Ohio 45402-2843
       Attorney for Defendant-Appellant

                                              .............

HALL, J.

        {¶ 1}      Anthony A. Hill appeals from his conviction and sentence on one count of
aggravated menacing, a first-degree misdemeanor.

       {¶ 2}    Hill advances two assignments of error challenging the legal sufficiency and

manifest weight of the evidence to support his conviction.

       {¶ 3}    The victim, Marcus Hunter, testified at trial that he had known Hill for “quite

a long time.” Hill previously had been married to Hunter’s wife. According to Hunter, the two

men had a history of “problems” prior to the aggravated-menacing incident. Without

elaboration, Hunter recalled a “car incident.” He also recalled an incident where Hill appeared

and started taking pictures of Hunter and others who were sitting on a porch. On at least one

prior occasion, Hunter had called the police on Hill. That incident involved Hunter’s son’s

mother’s house catching fire. During the incident, Hunter and Hill “got into a little

competition [and] fussin’ argument[.]”

       {¶ 4}    The incident underlying the aggravated-menacing charge occurred on May 24,

2011. That evening, Hunter drove to 118 Oberlin Avenue to visit his son. Hill resided next

door at 128 Oberlin Avenue. Hunter was in his vehicle, which was parked on the side of road,

when Hill “came around and blocked [Hunter] in with his truck.” (Tr. Transcript at 17). After

pulling in front of Hunter, who had been trying to move his vehicle, Hill ran into his house

and returned holding a revolver. (Id. at 17-18). According to Hunter, Hill was approximately

twenty feet away from him. (Id. at 19). Hill proceeded to do something in the back of his

truck. (Id. at 20). Although Hill never pointed the gun at Hunter or made any threatening

statements, Hunter testified that Hill “brought it out” and “showed it.” (Id. at 19, 21). Hunter

called 911 and remained in his vehicle until police arrived because he “feared for [his] life.”

(Id. at 25). When asked why he was fearful, Hunter responded that Hill was known for

carrying pistols. (Id. at 20). According to Hunter, Hill walked back inside his house when
                                                                                               3


police arrived. (Id. at 21).

        {¶ 5}     Hill testified in his own defense. He admitted parking on the street but denied

blocking Hunter’s vehicle. (Id. at 66, 68). According to Hill, he went inside his house and

opened a gate. (Id.). When he returned outside, Hill heard Hunter announcing that Hill had a

gun in his hand. (Id. at 70-71). Hill testified that he was not in possession of a gun and that he

ignored Hunter. (Id. at 71-72). He proceeded to move his truck, put away a lawnmower, lock

his gate, and go back inside. (Id. at 72). Hill theorized that Hunter had fabricated the allegation

about a gun to “get back” at him for previously having called the police to report Hunter’s

gambling. (Id. at 73, 75).

        {¶ 6}     After hearing the evidence, the trial court found Hill guilty of aggravated

menacing. In so doing, the trial court found that “[t]he defendant’s testimony as to his

possession or non-possession of a handgun lacks credibility.” (Doc. #37 at 1). The trial court

imposed a 180-day jail sentence with 90 days suspended. It imposed a partially suspended fine

and ordered Hill to pay court costs. Finally, the trial court placed Hill on five years of

community control with conditions. The trial court suspended execution of the sentence

pending appeal.

        {¶ 7}     As noted above, Hill’s two assignments of error challenge the legal

sufficiency and manifest weight of the evidence to sustain his conviction. When a defendant

challenges the sufficiency of the evidence, he is arguing that the State presented inadequate

evidence on an element of the offense to sustain the verdict as a matter of law. State v. Hawn,

138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist.2000). “An appellate court’s function

when reviewing the sufficiency of the evidence to support a criminal conviction is to examine
                                                                                             4


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. 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus.

       {¶ 8}    Our analysis is different when reviewing a manifest-weight argument. When a

conviction is challenged on appeal as being against the weight of the evidence, an appellate

court must review the entire record, weigh the evidence and all reasonable inferences, consider

witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of

fact “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. Thompkins, 78 Ohio St.3d 380, 387,

1997-Ohio-52, 678 N.E.2d 541. A judgment should be reversed as being against the manifest

weight of the evidence “only in the exceptional case in which the evidence weighs heavily

against the conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).

       {¶ 9}    With the foregoing standards in mind, we conclude that Hill’s aggravated

menacing conviction is supported by legally sufficient evidence and is not against the weight

of the evidence. The aggravated menacing statute, R.C. 2903.21(A), provides: “No person

shall knowingly cause another to believe that the offender will cause serious physical harm to

the person or property of the other person[.]”

       {¶ 10} In his legal-sufficiency argument, Hill claims the State failed to establish that
                                                                                           5


Hunter believed he would cause serious physical harm. At a minimum, Hill contends the State

did not establish that he knowingly caused Hunter to maintain such a belief. Hill asserts that

observation of a firearm, alone, is insufficient to support an aggravated menacing conviction.

Even if Hunter had a subjective fear of serious physical harm based on observation of a

firearm, Hill contends there was “not one scintilla of evidence” to support that fear or to

support a finding that he knowingly caused Hunter to have it.

       {¶ 11} Upon review, we find legally sufficient evidence to sustain Hill’s conviction.

Accepting Hunter’s testimony as true, which the trial court was entitled to do, it reasonably

could have found the essential elements of the crime proven beyond a reasonable doubt. Hill

previously had been married to Hunter’s wife, and the two men had some history of problems.

On the day in question, Hill blocked Hunter’s vehicle with his truck as Hunter was trying to

move. Hill then ran inside his house and returned carrying a revolver. He came within twenty

feet of Hunter holding the revolver, which he “brought out” and “showed.” This evidence is

legally sufficient to support a finding that Hill knowingly caused Hunter to believe Hill would

cause him serious physical harm.

       {¶ 12} Hill’s reliance on State v. Britton, 181 Ohio App.3d 415, 2009-Ohio-1282,

909 N.E.2d 176 (2d Dist.), fails to persuade us otherwise. In Britton, the defendant previously

had accused the victim of stealing her son’s prescription. On that occasion, the defendant had

threatened the victim, who had responded by brandishing a knife before leaving.

Approximately one year later, the two women met again in a parking lot. The defendant pulled

up to the victim’s car and stated: “I haven’t forgotten what happened” and “it’s not over.”

While speaking, the defendant also reached into her jacket as if to retrieve something. The
                                                                                             6


defendant’s actions made the victim “a little nervous,” and she drove away to avoid a

confrontation. On appeal, this court found insufficient evidence to support an aggravated

menacing conviction, reasoning:

               After a thorough review of the evidence submitted regarding the

        confrontation between Britton and Stephens on December 16, 2007, no

        testimony was adduced that established that Stephens believed that she would

        suffer serious physical harm at the hands of Britton. As an initial matter,

        Britton’s two statements, “I haven’t forgotten what happened” and “it’s not

        over,” while somewhat foreboding, do not constitute a threat of serious

        physical harm. Stephens’s testimony that Britton’s statement only made her “a

        little nervous” further demonstrates that Stephens did not believe that she was

        in danger of serious physical harm from Britton. Although the evidence was

        that Stephens was intimidated and justifiably unnerved, it cannot support a

        finding of a belief that Britton would cause her or her property “serious

        physical harm.” * * *.

Id. at ¶51.

        {¶ 13} Unlike the confrontation in Britton, we believe Hill’s act of blocking in

Hunter’s vehicle and displaying a revolver reasonably can be construed as a threat of serious

physical harm. Therefore, Britton is distinguishable. The other cases string-cited by Hill are of

little assistance. See State v. Akbar, 2d Dist. Montgomery No. 18766, 2001-Ohio-1714;

Dayton v. Davis, 136 Ohio App.3d 26, 735 N.E.2d 939 (2d Dist.1999); and Dayton v. Gunn,

2d Dist. Montgomery No. 11602           (Nov. 21, 1989). In Akbar, this court upheld an
                                                                                             7


aggravated-menacing conviction where the defendant angrily threatened to “take care of,”

“take out,” and “get” the victim. In Davis, this court upheld an aggravated-menacing

conviction based on implicitly threatening e-mails and website images. Finally, in Gunn, this

court upheld an aggravated-menacing conviction where the defendant threatened the victim

with sexual abuse and threw punches at her. Akbar, Davis, and Gunn bear no factual similarity

to the case before us and do not alter our belief that Hill’s conviction is supported by legally

sufficient evidence. The first assignment of error is overruled.

       {¶ 14} With regard to the weight of the evidence, Hill again claims the evidence does

not support a finding that Hunter was in fear of serious physical harm or that he knowingly

caused Hunter to have such a fear. Hill stresses the absence of any verbal threats or threatening

gestures. He argues that any fear Hunter experienced was a result of “unreasonable

hypersensitivity” unconnected to anything he did. We disagree. The record supports a finding

that Hill knowingly caused Hunter to fear serious physical harm by blocking Hunter’s vehicle

and displaying a revolver. Having reviewed the record, we cannot say the trial court clearly

lost its way and created a miscarriage of justice when it credited Hunter’s testimony and found

Hill guilty. The evidence does not weigh heavily against the conviction. The second

assignment of error is overruled.

       {¶ 15} The judgment of the Montgomery County Municipal Court is affirmed.

                                                   .............

DONOVAN and WELBAUM, JJ., concur.
                        8



Copies mailed to:

Gregory P. Spears
Michael C. Thompson
Hon. James L. Manning
