[Cite as State v. Hills, 2013-Ohio-2902.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 98848

STATE OF OHIO 

PLAINTIFF-APPELLEE 

vs. 

ERIK D. HILLS, II

 DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-559495 

BEFORE: Stewart, A.J., Rocco, J., and Keough, J. 

RELEASED AND JOURNALIZED: July 3, 2013 
ATTORNEY FOR APPELLANT

Richard Agopian 

The Hilliard Building 

1415 West 9th Street, 2nd Floor 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEE 

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Mark J. Mahoney 

 James M. Price 

Assistant County Prosecutors 

The Justice Center 

1200 Ontario Street, 8th Floor 

Cleveland, OH 44113 
MELODY J. STEWART, A.J.:

{¶1} Defendant-appellant Erik Hills, II elected to have the court try him on charges 

of felonious assault, intimidating a crime witness, aggravated menacing, and having 

weapons while under disability. Some of the counts had firearm specifications. After 

the court denied Hills’s motion for judgment of acquittal, the court allowed the state to 

amend the intimidation count to insert the name of the victim. The court subsequently 

found Hills not guilty of felonious assault, but guilty on the intimidation, menacing, 

weapons disability counts, and firearm specifications. On appeal, Hills complains that 

the indictment charging intimidation was legally insufficient both in form and substance 

and that the court erred by allowing the state to amend it during trial; that trial counsel 

was ineffective during the plea bargaining stages; and that there was insufficient evidence 

to prove that the firearm was operable. 

 I 

{¶2} We first address Hills’s several arguments relating to the intimidation count 

— whether the count should have been dismissed because it did not list a victim; whether 

the court erred by allowing the state to amend the indictment to state the name of the 

victim; and whether there was sufficient evidence to prove the intimidation count. 

 A 

{¶3} In Count 1 of the indictment, the grand jury charged that Hills “did 

knowingly and by force or by unlawful threat of harm to any person or property, attempt 
to influence, intimidate, or hinder [a] * * * witness * * *.” In his Crim.R. 29 motion for 

judgment of acquittal offered at the close of the state’s evidence, Hills argued that the 

indictment was defective because it omitted the name of the witness-victim. In response 

to Hills’s motion for judgment of acquittal on the intimidation count, the state argued that 

the name of a victim was not a necessary element of intimidation under R.C. 2921.04(B). 

On the assumption that the victim’s name was a necessary element of intimidation, the 

state argued that the court should amend the indictment to state the victim’s name because 

there had never been any question about the victim’s identity given that he testified at 

trial. The court allowed the amendment. 

{¶4} “Ohio law does not require that a victim be named in an indictment when the 

identity of the victim is not an essential element of the crime.” State v. Cicerchi, 182 

Ohio App.3d 753, 2009-Ohio-2249, 915 N.E.2d 350, ¶ 35, fn. 7 (8th Dist.). The victim’s 

name is not an essential element of R.C. 2921.04(B). The elements of intimidation of a 

witness, as stated under the version of R.C. 2921.04(B) in effect at the time Hills 

committed his offense, required the state to show that Hills, knowingly and by force or by 

unlawful threat of harm to any person, attempted to influence, intimidate, or hinder a 

witness to a criminal act. 

{¶5} The witness’s name is not essential to proving an act of intimidation. What 

is essential is proving that the victim was a witness to a criminal act. So the court had no 

basis for granting a motion for judgment of acquittal on the intimidation count merely 

because it failed to state the name of the victim. 
 B 

{¶6} Morever, even had there been some defect in the form of the witness 

intimidation count, the court did not abuse its discretion by amending that count to state 

the victim’s name. The court may amend an indictment at any time before, during, or 

after a trial to correct any “omission in form or substance” provided the amendment 

makes no change to the name or identity of the crime charged. See Crim.R. 7(D). The 

rule is consistent with the principle that the purpose of a grand jury indictment is to give 

notice to the accused so that he can know what he has been charged with and prepare to 

defend those charges in criminal proceedings. See State v. Horner, 126 Ohio St.3d 466, 

2010-Ohio-3830, 935 N.E.2d 26, ¶ 10. So if an amendment does not change the name or 

identity of the crime charged, or the penalty or degree of offense charged, the defendant’s 

“notice” of what he has been charged with remains unaffected. 

{¶7} There is no question that Hills knew the identity of the victim well in advance 

of trial — the state identified the victim during discovery. For this reason, Hills makes 

no argument that his ability to mount an effective defense was impeded because he did 

not know the victim’s name. Indeed, Hills’s argument is not one based on prejudice, but 

on the idea that the state committed a technical violation by failing to state the victim’s 

name in the indictment — an argument we have rejected because the victim’s name was 

not an essential element of the offense. Given the lack of prejudice, we have no basis for 

concluding that the court abused its discretion by amending the intimidation count to 

reflect the victim’s name. 
 C 

{¶8} Hills next argues that there was insufficient evidence to prove the charge of 

witness intimidation. He maintains that the state failed to offer evidence to show that the 

victim believed Hills used force or the unlawful threat of force to influence the victim’s 

testimony. 

{¶9} We determine whether the evidence is sufficient to sustain a verdict by 

examining the evidence in the light most favorable to the prosecution and determining 

whether any rational trier of fact could have found that the prosecution proved the 

essential elements of the crime beyond a reasonable doubt. State v. Yarbrough, 95 Ohio 

St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 78, quoting Jackson v. Virginia, 443 

U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 

{¶10} The evidence showed that Hills’s father and the victim were charged with 

felonious assault in connection with a drive-by shooting in a separate criminal case. The 

victim and the father were in separate cars and the shots were fired by a passenger in the 

car driven by the father. The victim claimed to have no involvement in the shooting and 

the charges against him were later dismissed; the father ultimately pleaded guilty to 

aggravated assault. Before the resolution of that criminal case, both men were out on 

bond and found themselves at the same tavern: the victim was with his wife; the father 

with Hills and a group of people. The father motioned for the victim to come over to his 

table, but the victim motioned to have the father come to his table. When neither man 

made a move toward the other, the victim went outside to smoke. The father followed 
with Hills and several other friends just behind him. Seeing the number of people 

exiting with the father, the victim’s wife went out to join her husband. The victim said 

that the father referenced the pending legal proceedings against them and told him, “just 

let the court process play out * * *. Don’t say anything.” The victim responded 

incredulously, saying that he had lost his job and was about to lose his house because of 

the felonious assault charges: “I was, like, What are you talking about? Go through 

what process?” At that point Hills said, “Man, you know what he talking about. You a 

snitch.” When the victim said, “[t]his ain’t got nothing to do with snitching[,]” Hills 

lifted his shirt and pulled out a gun. He did not point the gun at the victim, but waved it 

back and forth. The victim and his wife both began backing away toward their car. 

{¶11} This evidence was sufficient to prove that Hills acted knowingly and by 

force or by unlawful threat of harm to influence, intimidate, or hinder the victim in his 

capacity as a witness to a criminal proceeding. Both the victim and the father were under 

indictment in the other criminal case, so court proceedings had undisputedly commenced 

against them. See In re M.W., 133 Ohio St.3d 309, 2012-Ohio-4538, 978 N.E.2d 164, ¶ 

18. 

{¶12} We also find that a rational trier of fact could easily conclude that calling the 

victim a snitch and brandishing a firearm served no purpose other than to intimidate the 

victim and influence him to either give favorable testimony for the father or not testify at 

all against the father. Hills disputes that he possessed any firearm, but both the victim 

and his wife testified that they saw Hills display the gun as a threat to the victim. That 
was enough evidence to allow the court to deny a motion for judgment of acquittal on the 

intimidation charge. 

 II 

{¶13} We next consider Hills’s assignment of error that there was insufficient 

evidence to prove the firearm specifications. The state treats this argument as one 

questioning the evidence supporting the weapons while under disability count. Hills’s 

does not make this argument on appeal. But in fairness to the state, Hills’s assignment of 

error only cites State v. Woodson, 8th Dist. No. 96538, 2012-Ohio-172, references the 

statements made in that case supporting a finding of operability, and makes the statement, 

“[a]ll of this is absent in this case.” We view this as an argument that the state failed to 

prove operability for the firearm specification given that the police did not recover any 

firearm, there was no direct evidence of operability, and there were no threats to use the 

firearm that would constitute circumstantial evidence of operability. 

{¶14} In State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, 

paragraph one of the syllabus states: 

A firearm enhancement specification can be proven beyond a reasonable 

doubt by circumstantial evidence. In determining whether an individual 

was in possession of a firearm and whether the firearm was operable or 

capable of being readily rendered operable at the time of the offense, 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. (State v. Murphy [1990], 49 Ohio St.3d 206, 551 

N.E.2d 932, State v. Jenks [1991], 61 Ohio St.3d 259, 574 N.E.2d 492, and 

State v. Dixon [1995], 71 Ohio St.3d 608, 646 N.E.2d 453, followed; R.C. 

2923.11[B][1] and [2], construed and applied.) 
{¶15} Circumstantial evidence of a firearm’s operability includes the 

representations and actions of the individual exercising control over the weapon. Thus, 

“where an individual brandishes a gun and implicitly but not expressly threatens to 

discharge the firearm at the time of the offense, the threat can be sufficient to satisfy the 

state’s burden of proving that the firearm was operable or capable of being readily 

rendered operable.” Id. at 384. 

{¶16} The evidence showed that Hills brandished a gun. The word “brandish” 

means to “wave or exhibit in a menacing or challenging manner.” State v. McCrary, 1st 

Dist. No. C-08060, 2009-Ohio-4390, ¶ 30. As we stated when addressing the evidence 

supporting the witness intimidation count, the evidence showed that Hills, immediately 

after calling the victim a “snitch,” removed a firearm from the waistband of his trousers 

and waved it about in a menacing manner. To be sure, Hills did not actually point the 

firearm at the victim. But his act of brandishing the gun was an implicit threat intended 

to cause the victim to believe that Hills would use the gun to cause physical harm. In 

fact, this same conduct supported Hills conviction on the aggravated menacing count — a 

count that he does not contest on appeal. The circumstantial evidence was such that the 

court could rationally find that the state proved that Hills’s firearm was operable. 

 III 

{¶17} Hills’s final argument is ostensibly an ineffective assistance of counsel 

claim based on his rejection of a plea bargain offered by the state. After opening 

statements were completed, the state told the court that it had offered Hills a plea deal 
wherein Hills would plead guilty to the intimidation of a witness count and a 

misdemeanor count of aggravated menacing, and the state would delete the firearm 

specifications on all counts. The offer contemplated a “recommended sentence up to the 

discretion of the Judge[.]” Although Hills rejected the plea bargain, the state said that 

the offer remained open. The court questioned both Hills and defense counsel about the 

offer, and they both confirmed that the plea deal had been offered, that they discussed the 

deal, that Hills was aware that it was his decision to decide whether to accept the plea 

deal, and that Hills had chosen to go forward with trial. 

{¶18} We say that Hills’s argument was “ostensibly” an ineffective assistance of 

counsel claim because the actual argument that Hills makes is one that complains that the 

court, not counsel, committed error: “although the court informed Mr. Hills, II of the 

plea bargain, it failed to inform him of the serious consequences of a conviction” on the 

charged offenses. See Appellant’s Brief at 21. Although Crim.R. 11 places an 

obligation on the court to inform a defendant that a guilty plea waives certain 

constitutional rights, the court has no duty to inform a defendant of the consequences of 

rejecting a plea. To the extent that Hills argues the court erred in this respect, we reject 

that argument. 

{¶19} Even if we analyze this assignment of error as an ineffective assistance of 

counsel claim, it still fails. To succeed on his ineffective assistance of counsel claim, 

Hills must show that: (1) counsel’s failures fell below an objective standard of 

reasonableness and (2) counsel’s deficient performance was prejudicial. See Strickland 
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The standard 

for showing ineffective assistance of counsel during the plea bargaining stage is set forth 

in Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri 

v. Frye, ___ U.S. ___, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). In Lafler, the court held 

that the Sixth Amendment right to counsel applies to the plea bargaining process and 

prejudice occurs when, absent deficient advice, the defendant would have accepted a plea 

that would have resulted in a less severe conviction, sentence, or both. Lafler, 132 S.Ct. 

at 1384-1385. In Frye, the court held that a component of the Sixth Amendment right to 

counsel in the plea bargaining context is that counsel has a duty to communicate any 

offers from the government to his client. Frye, 132 S.Ct. at 1408. 

{¶20} As the record shows, counsel communicated the state’s plea offer to Hills in 

conformity with Frye. What is more, Hills makes no argument that defense counsel 

advised him to reject the plea offer, nor does the record permit the conclusion that 

defense counsel gave any advice to reject the plea offer in violation of Lafler. Hills 

agreed that he had a “discussion” with defense counsel “with regard to [his] exposure if * 

* * convicted after trial as opposed to entering a plea.” Hills also agreed that defense 

counsel advised him throughout the proceedings that Hills had to decide on his own 

whether to accept the plea offer or go to trial. Nothing supports the conclusion that 

defense counsel violated an essential duty to Hills by giving deficient advice to reject the 

plea offer. 

{¶21} Judgment affirmed. 
It is ordered that appellee recover of appellant its 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 Cuyahoga 

County Court of Common Pleas 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. 

 

 

MELODY J. STEWART, ADMINISTRATIVE JUDGE 

KENNETH A. ROCCO, J., and 

KATHLEEN ANN KEOUGH, J., CONCUR