[Cite as State v. Hill, 2011-Ohio-2523.]




          Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 95379




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                       JAMES E. HILL
                                                      DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED



                                      Criminal Appeal from the
                 Cuyahoga County Court of Common Pleas
                         Case No. CR-534565

     BEFORE:      Keough, J., Cooney, P.J., and S. Gallagher, J.

    RELEASED AND JOURNALIZED:                May 26, 2011
ATTORNEY FOR APPELLANT

Joseph V. Pagano
P.O. Box 16869
Rocky River, OH 44116


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Matthew Ezzo
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113




KATHLEEN ANN KEOUGH, J.:
       {¶ 1} Defendant-appellant,           James         E.   Hill    (“Hill”),   appeals       his

convictions for aggravated burglary, felonious assault, carrying a concealed

unloaded weapon, and aggravated menacing. For the reasons that follow, we

affirm.

       {¶ 2} On March 5, 2010, Hill was charged in Case No. CR-534565 with

aggravated burglary, felonious assault, carrying a concealed weapon,

aggravated menacing, and intimidation.                     The aggravated burglary and

felonious assault charges each contained one- and three-year firearm

specifications. On March 10, 2010, Hill was charged in Case No. CR-534825

with assault.       These two cases were joined for a jury trial, where the

following evidence was presented.1

       {¶ 3} In the early morning hours of February 24, 2010, Hill came to the

Parma home of the victim, Amanda Manns (“Manns”), to talk to the mother of

his child, Bridget Valenta (“Valenta”), who was visiting Manns. According to

both Valenta and Manns, when Hill arrived at the residence, he was angry

and began loudly banging on the door. Valenta allowed him into Manns’s

residence to calm him down and avoid waking up the children inside the

residence and the neighbors.             Once inside the apartment, Hill continued

yelling at Valenta as she attempted to calm him down. Manns approached


       Hill only filed a Notice of Appeal in CR-534565.    Therefore, any challenge to his conviction
       1


in CR-534825 will not be addressed.
Hill and told him that if he did not calm down, she was going to call the

police. According to Valenta, when Manns grabbed at Hill, he became angry,

removed a gun from his waistband, put it to Manns’s head, and threatened to

kill her if she called the police. Hill then turned back towards Valenta as

Manns walked away to get her children. Manns then went upstairs to her

neighbor’s apartment and called the police.     Hill left the scene with his

brother. Valenta testified that the entire incident happened very quickly:

“He was there, he was in the house, he was out the door within 60 seconds.”

     {¶ 4} Before the police arrived, Valenta left Manns’s apartment and

went to her home in Berea, where she found Hill in her laundry room. Hill

was detained by Berea police and later transported to the Cuyahoga County

jail by Parma police. Parma police detective Marty Compton testified that no

gun was recovered.

     {¶ 5} Later that day, while Hill was incarcerated at the Cuyahoga

County jail, he approached corrections officer John Parsley and demanded to

see a supervisor regarding his broken hand. According to Parsley, Hill then

became belligerent and started getting loud. Parsley stood at his desk and

repeatedly ordered Hill to step back; however, Hill refused and became more

agitated and aggressive. As Hill aggressively approached, Parsley pushed

him away.    Hill then charged at Parsley, tackled him to the floor, and
repeatedly punched him in the head. Parsley sustained injuries to his head

and knee.

      {¶ 6} The jury found Hill guilty of aggravated burglary, felonious

assault, including both one- and three-year firearm specifications, the lesser

offense of carrying a concealed unloaded weapon, aggravated menacing, and

assault. Hill was sentenced to a total prison term of six years.

      {¶ 7} Hill appeals, raising four assignments of error, which will be

addressed together where appropriate.

                            Joinder of Indictments

      {¶ 8} In his first assignment of error, Hill contends that the trial court

erred in granting the State’s motion to join the indictments.

      {¶ 9} In order to properly preserve this issue for appeal, the defendant

must object to the joinder of indictments at the time of trial, and at the close

of the State’s case or at the close of evidence. State v. Owens (1975), 51 Ohio

App.2d 132, 366 N.E.2d 1367, paragraph two of the syllabus.          Failure to

object and renew the objection waives all but plain error.             State v.

Harris-Powers, Cuyahoga App. No. 87921, 2007-Ohio-389, 17.           An error

does not constitute plain error unless, but for the error, the outcome of the

trial clearly would have been otherwise.     Id. at 22, citing State v. Long

(1978), 53 Ohio St.2d 91, 372 N.E.2d 804.        “Notice of plain error under

Crim.R. 52(B) is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” Long at

paragraph three of the syllabus.

      {¶ 10} In this case, Hill objected to joinder of the indictments prior to the

presentation of evidence, but failed to renew his objection at the close of the

State’s case, which was the close of all evidence. Accordingly, he has waived

all but plain error.

      {¶ 11} As a procedural matter, the record is devoid of any motion by the

State requesting that Hill’s indictments be joined for one trial. We glean

from the record that the trial court sua sponte joined these indictments for

trial. Under Crim.R. 13(A), a trial court may join the indictments sua sponte

if the charges could have been joined under Crim.R. 8(A). State v. Moore

(Jan. 31, 1994), Madison App. No. CA92-12-034; State v. VanHorn (Mar. 3,

2000), Lucas App. No. L-98-1171.

      {¶ 12} The law favors joining multiple offenses in a single trial under

Crim.R. 8(A) if the offenses charged “are of the same or similar character.”

State v. Lott (1990), 51 Ohio St.3d 160, 163, 555 N.E.2d 293, citing State v.

Torres (1981), 66 Ohio St.2d 340, 421 N.E.2d 1288.             Separate criminal

charges joined pursuant to Crim.R. 8(A) need not be identical, but must be of

the “same or similar character.” Moore, supra. Thus, Crim.R. 13 permits a

trial court to “order two or more indictments to be tried together if the

offenses could have been joined in a single indictment[.]”
      {¶ 13} Joinder is appropriate where the evidence is interlocking and the

jury is capable of segregating the proof required for each offense. State v.

Czajka (1995), 101 Ohio App.3d 564, 577-578, 656 N.E.2d 9.           However,

Crim.R. 14 requires separate trials if it appears that a criminal defendant

would be prejudiced by such joinder.     The defendant bears the burden of

demonstrating both prejudice and that the trial court abused its discretion in

denying severance of the indictments. State v. Kirk, Cuyahoga App. Nos.

95260 and 95261, 2011-Ohio-1687, 31, citing State v. Coley, 93 Ohio St.3d

253, 2001-Ohio-1340, 754 N.E.2d 1129.

      {¶ 14} We find joinder was proper under Crim.R. 8(A) and Crim.R. 13.

The record indicates the crimes were committed on the same day and were of

the same or similar character. Hill arrived at Manns’s apartment in a highly

agitated state.   When he entered the apartment, he continued yelling at

Valenta. When Valenta was unable to calm him down, Manns intervened by

stating that if he did not calm down, she would call the police. At that point,

Hill put a gun to Manns’s head and threatened her.

      {¶ 15} Later that day, Hill approached corrections officer Parsley and

demanded to see a supervisor.      Hill then became belligerent and started

yelling. After Parsley repeatedly told Hill to step away from the desk, Hill

became more agitated and aggressively approached Parsley.         Parsley was

able to push Hill back, but Hill charged at Parsley and knocked him to the
floor and then repeatedly punched Parsley in the head. Applying Crim.R.

8(A), we conclude that the joinder was proper because the criminal offenses

were of the same or similar character:          Hill resorted to violence when

someone tried to intervene or calm him down when he was in an agitated

state.

         {¶ 16} Hill contends on appeal that he was prejudiced by joining the two

indictments because the “two incidents had nothing in common and the

joinder served only to inflame the jurors [sic] passion by suggesting that [he]

had a violent temper.” He further asserts that the evidence relating to each

offense would not have been admissible in the other case under Evid.R.

404(B) if the indictments had proceeded to separate trials.

         {¶ 17} “A prosecutor can use two methods to negate such claims of

prejudice.” Lott at 163. Under the first method, the “other acts” test, the

prosecutor may argue that he could have introduced evidence of the other

crime under the “other acts” portion of Evid.R. 404(B) if the other offense had

been severed for trial. Id. Under the second method, the “joinder” test, the

prosecutor is not required to meet the stricter “other acts” admissibility test,

but merely is required to show that evidence of each crime joined at trial is

simple and direct. Id. “[W]hen simple and direct evidence exists, an accused

is not prejudiced by joinder regardless of the nonadmissibility of evidence of

these crimes as ‘other acts’ under Evid.R. 404(B).” Id.
      {¶ 18} We find that the joinder did not prejudice Hill because under the

“joinder test” the evidence of each event was simple and direct. Each victim

and corroborating witnesses gave straightforward testimony.          See Kirk at

40. Therefore, the trier of fact was capable of segregating the proof required

for each offense.   See State v. Mills (1992), 62 Ohio St.3d 357, 362, 582

N.E.2d 972.

      {¶ 19} Accordingly, we do not find plain error with the trial court’s

decision to join these two indictments for trial. Hill’s first assignment of error

is overruled.

                Sufficiency and Manifest Weight of the Evidence

      {¶ 20} The test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial. State v. Bowden, Cuyahoga

App. No. 92266, 2009-Ohio-3598, ¶12. 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 (1991), 61 Ohio St.3d 259, 574

N.E.2d 942, paragraph two of the syllabus.

      {¶ 21} A manifest weight challenge, on the other hand, questions

whether the prosecution met its burden of persuasion.          State v. Thomas

(1982), 70 Ohio St.2d 79, 80, 434 N.E.2d 1356. A reviewing court may reverse

the judgment of conviction if it appears that 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 finding that a conviction

was supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency. Id. at 388.

      {¶ 22} In his second and third assignments of error, Hill contends that

his convictions for aggravated burglary, felonious assault, and the

corresponding firearm specifications were not supported by sufficient

evidence and were against the manifest weight of the evidence.2

      {¶ 23} Under R.C. 2911.11(A)(2), regarding aggravated burglary, “[n]o

person, by force, stealth, or deception, shall trespass in an occupied structure

* * *, when another person * * * is present, with purpose to commit in the

structure * * * any criminal offense, if * * * [t]he offender has a deadly

weapon or dangerous ordnance on or about the offender’s person or under the

offender’s control.”

      {¶ 24} Hill asserts that the State failed to establish the element of

trespass because he had permission to be in Manns’s apartment and even if

that permission was revoked, he did not remain on the premises, but left

Manns’s apartment immediately after the confrontation.



       Hill makes no argument challenging his convictions for carrying a concealed unloaded
      2


weapon and aggravated menacing. Therefore, we will not address those convictions in this
       {¶ 25} “Trespass” is knowingly entering or remaining on the land or

premises of another without privilege to do so.            R.C. 2911.21(A)(1).

Although a person may have permission to enter the premises, permission

“can be revoked upon an act of violence against a person who has the

authority to revoke the privilege of initial entry.” State v. Steffen (1987), 31

Ohio St.3d 111, 115, 509 N.E.2d 383. Accordingly, once Hill pointed the gun

at Manns’s head and threatened her, permission to be in her apartment was

implicitly revoked. We make no distinction in duration of time because Hill

remained in the apartment for a brief period of time thereafter, possibly

seconds.     When Hill decided to threaten Manns with a gun, the trespass

occurred; neither Manns nor Valenta needed to explicitly revoke his privilege

or order him to leave. Therefore, we hold that once an act of violence occurs

against a person who has the authority to revoke the privilege of initial entry,

the perpetrator’s privilege or permission is revoked immediately; no time or

duration between the act of violence and when the perpetrator leaves needs to

be established.

       {¶ 26} Hill further challenges his aggravated burglary conviction by

asserting that the State failed to prove the element of intent, such that no

evidence existed that he entered the apartment with any purpose of

committing a criminal offense. The Ohio Supreme Court has rejected this


assignment of error.
argument, holding that “for purposes of defining the offense of aggravated

burglary, a defendant may form the purpose to commit a criminal offense at

any point during the course of a trespass.” State v. Fontes, 87 Ohio St.3d

527, 530, 2000-Ohio-472, 721 N.E.2d 1037. Therefore, even though Hill may

not have had any criminal intent when he entered the apartment, his purpose

changed when he decided to remove the gun from his waistband, put it to

Manns’s head, and threaten her. Accordingly, Hill’s arguments challenging

his aggravated burglary conviction are without merit.

      {¶ 27} Hill contends that his felonious assault conviction was also

improper because no one was injured. R.C. 2903.11(A)(2), felonious assault,

provides that “no person shall knowingly * * * cause or attempt to cause

physical harm to another * * * by means of a deadly weapon or dangerous

ordnance.” The Ohio Supreme Court has held that “[t]he act of pointing a

deadly weapon at another coupled with a threat, which indicates an intention

to use such weapon, is sufficient evidence to convict a defendant of the offense

of ‘felonious assault’ as defined by R.C. 2903.11(A)(2).” State v. Green (1991),

58 Ohio St.3d 239, 569 N.E.2d 1038, at the syllabus.         The testimony of

Manns and Valenta established that Hill put a gun to Manns’s head and

threatened her with bodily harm. Manns testified she was scared and feared

for her children.    This is sufficient to sustain appellant’s conviction for

felonious assault.
      {¶ 28} Hill was found to have committed the above offenses with the use

of a firearm. He contends there was insufficient evidence to convict him of

the firearm specifications, however, because there was no evidence that the

gun was operable. Hill also argues that all of his convictions were against

the weight of the evidence because (1) no gun was recovered; (2) the State

failed to prove that the gun was operable; and (3) Valenta’s written statement

to police did not mention that Hill used a gun.

      {¶ 29} The fact that the gun was not recovered was not fatal to the

State’s case. Both Manns and Valenta testified to seeing Hill with the gun in

his hand and described the gun to the jury. Additionally, the jury heard the

911 call made by Manns immediately after the incident wherein she stated

that Hill held a gun to her head. Finally, the testimony established that Hill

left the scene in a vehicle that traveled from Parma to Berea. The jury could

have concluded that the gun was abandoned at any point during that time.

      {¶ 30} Concerning   operability, “the trier of fact may rely upon

circumstantial evidence, including, but not limited to, the representations

and actions of the individual exercising control over the firearm.” R.C.

2923.11(B)(2). “The [S]tate can prove that the weapon was operable or could

readily have been rendered operable at the time of the offense in a variety of

ways without admitting the firearm allegedly employed in the crime into

evidence.” State v. Gains (1989), 46 Ohio St.3d 65, 545 N.E.2d 68, syllabus.
      {¶ 31} In Thompkins, supra, the Ohio Supreme Court held in paragraph

one of the syllabus, that “the trier of fact may consider all relevant facts and

circumstances surrounding the crime, which include any implicit threat made

by the individual in control of the firearm” when determining whether a

weapon was operable.      Since Thompkins, this court has routinely found

sufficient evidence to support a firearm specification when the defendant

brandished a firearm and implicitly threatened to fire it by pointing it at the

victim. See State v. Hayes, Cuyahoga App. No. 93785, 2010-Ohio-5234; State

v. Brooks, Cuyahoga App. No. 92389, 2009-Ohio-5559; State v. Robinson,

Cuyahoga App. No. 80718, 2003-Ohio-156.

      {¶ 32} In this case, we do not have an implicit threat; rather, Hill made

an explicit threat of violence towards the victim. The State offered sufficient

evidence of operability through testimony that Hill pointed the gun at

Manns’s head and verbally threatened to kill her if she called the police.

Manns testified that she believed the gun was real and she was scared for her

life. Valenta also testified that she knew the gun was real because, through

her 13 to 14 years of knowing Hill, she knew that he had guns.

      {¶ 33} Finally, the fact that Valenta did not include in her written

statement to police that Hill used a gun in committing the offense was not

detrimental to the State’s case because Valenta testified that a gun was used.

 Even if the jury found Valenta’s testimony less credible due to the apparent
contradiction, the jury had already heard Manns’s testimony and her 911 call

that Hill had a gun.

      {¶ 34} Accordingly, we conclude that the jury did not lose its way in

finding Hill guilty of aggravated burglary, felonious assault, and the

corresponding firearm specifications and that sufficient evidence was

presented to support each conviction. Hill’s assignments of error two and

three are overruled.

       Prosecutorial Misconduct and Ineffective Assistance of Counsel

      {¶ 35} In his fourth assignment of error, Hill contends that the improper

comments made by the prosecutor during closing arguments amounted to

prosecutorial misconduct; thus, defense counsel’s failure to object to them

denied him his constitutional right to effective assistance of counsel.

      {¶ 36} Closing arguments must be viewed in their entirety to determine

whether the disputed remarks were prejudicial. State v. Mann (1993), 93

Ohio App.3d 301, 312, 638 N.E.2d 585. An appellant is entitled to a new

trial only when a prosecutor asks improper questions or makes improper

remarks and those questions or remarks substantially prejudiced appellant.

State v. Pate, Cuyahoga App. No. 95382, 2011-Ohio-1692, 19, citing State v.

Smith (1984), 14 Ohio St.3d 13, 470 N.E.2d 883.

      {¶ 37} Hill argues that the prosecution committed misconduct during

closing arguments by (1) improperly characterizing his conduct as a “violent
rampage,” (2) misstating the evidence in his closing argument,            and (3)

vouching for the credibility of a witness. Hill alleges that the cumulative

effect of these comments during closing argument was prejudicial, thus

depriving him of a fair trial.

         {¶ 38} We note at the outset that defense counsel did not object to these

statements and, in turn, has waived the issue on appeal except for plain

error.     Pate, citing State v. Owens (1975), 51 Ohio App.2d 132, 146, 366

N.E.2d 1367. As previously discussed, notice of plain error is to be taken

with the utmost caution, to prevent a manifest miscarriage of justice, and

should be found when, but for the error, the outcome of the trial would have

been different. Long, supra.

         {¶ 39} Hill claims that the prosecutor’s comment suggesting that he was

on a “violent rampage” on the day of the offenses was an improper comment

on “other acts” evidence, in violation of Evid.R. 404(B).          Although the

prosecutor used this phrase in describing Hill’s conduct, we do not find

Evid.R. 404(B) an applicable challenge or that the phrase was improper or

prejudicial. The jury heard testimony that Hill committed acts of violence

against two different victims, at two different locations, on the same day.

The prosecutor’s characterization was not improperly prejudicial.

         {¶ 40} Hill also challenges the prosecutor’s comment vouching for the

credibility of Valenta, stating that she was telling the truth. Hill fails to cite
in the record where the challenged comment was made; accordingly, we need

not address this argument. App.R. 12(A)(2) and 16(A)(7). Nevertheless, we

find that the prosecutor’s isolated comment was not prejudicial and did not

amount to plain error.    “Isolated comments by a prosecutor are not to be

taken out of context and given their most damaging meaning.”         State v.

Carter, 89 Ohio St.3d 593, 603 2000-Ohio-172, 734 N.E.2d 345, citing

Donnelly v. DeChristoforo (1974), 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d

431. Furthermore, the trial court, prior to the start of closing arguments,

instructed the jury that closing arguments are not evidence. It is presumed

that the jury followed this instruction.

      {¶ 41} Hill’s final challenge pertains to the prosecutor’s repeated

misstatement and mischaracterization of the evidence in his closing

argument by asserting to the jury that Manns and Valenta told Hill to leave

the apartment.       Our review of the record demonstrates that this

misstatement was not an isolated comment, but occurred at least eight times

during the prosecutor’s closing and rebuttal arguments. The evidence clearly

showed that neither Manns nor Valenta told Hill to leave the apartment.

The prosecution must avoid insinuations and assertions that are calculated to

mislead the jury. Berger v. United States (1935), 295 U.S. 78, 88, 55 S.Ct.

629, 79 L.Ed. 1314. But for the overwhelming proof of guilt in this matter,
this repeated mischaracterization would have constituted plain and

prejudicial error. We cannot condone this type of trial tactic.

      {¶ 42} Nevertheless, we find that the prosecutor’s comments, either

separately or cumulatively, do not rise to the level of misconduct that would

substantively deprive Hill of a fair trial. Having found that the prosecutor’s

comments did not constitute misconduct, Hill’s defense counsel was,

therefore, not ineffective for failing to object to them.

      {¶ 43} Hill’s final assignment of error is overruled.

      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.



KATHLEEN ANN KEOUGH, JUDGE

COLLEEN CONWAY COONEY, P.J., and
SEAN C. GALLAGHER, J., CONCUR
