[Cite as State v. Hill , 2020-Ohio-1237.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-18-1160 Appellee Trial Court No. CR0201703045

v. Jamaine Hill DECISION AND JUDGMENT Appellant Decided: March 31, 2020

* * * * * Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee. Lawrence A. Gold, for appellant.

* * * * * ZMUDA, P.J. {¶ 1} Appellant, Jamaine Hill, appeals the June 15, 2018 judgment of the Lucas County Court of Common Pleas following his conviction on seven counts of felonious assault. We affirm, in part, and reverse, in part, the judgmen t of the trial court.2. I. Facts and Procedural Background {¶ 2} On November 27, 2017, appellant was indicted on seven counts of felonious assault in violation of R.C. 2903.11(A)(2) and (D), each a firs t-degree felony, and possession of a weapon while under disability in violation of R .C. 2923.13(A)(3) and (B), a third-degree felony. Each count of felonious assault include d a firearm specification pursuant to R.C. 2941.145(A), (B), (C), and (F). Appellant was arraigned on December 14, 2017. He was determined to be indigent, was appoi nted counsel, and entered a not guilty plea to all counts. {¶ 3} On March 12, 2018, appellant filed a motion to suppress any sta tements given to the investigating officers arguing any statements made were inadmissible pursuant to Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.E.2d 694 (1966). The state opposed the motion and the trial court conducted a hearin g on appellant’s motion on March 27, 2018. The trial court denied appellant’s motion. Ne xt, the state filed a motion in limine on April 26, 2018, seeking to exclude any evidence se ized during execution of the no-knock warrant from being introduced at trial and to prec lude any attempt by appellant to cross-examine the state’s witnesses regarding the seized evidence. The state argued the evidence seized was irrelevant to the charges appell ant faced and its introduction, either as evidence or by reference on cross-exami nation, would result in jury confusion. Appellant did not oppose the motion and the tr ial court granted the state’s motion upon the commencement of trial on June 11, 2018. Following the trial3. court’s order on these preliminary motions, the matter proceede d to trial where the following facts were established. {¶ 4} On November 16, 2017, officers from the Toledo Police Departmen t SWAT team were executing a no-knock search warrant at appellant’s re sidence on Caroline Street in Toledo, Ohio. Detective J.P., the victim in Count 2 of the indictment, obtained

the warrant and coordinated with the SWAT team on its execution . At approximately 2:00 a.m., the SWAT team and supporting officers, including J.P ., arrived at appellant’s residence. Officer R.K., the victim in Count 1 of the indictme nt and a member of the SWAT team, was the first to approach the door of the residence. He was followed immediately by officers R.J. and P.F., victims in Counts 3 and 4 of the indictment, respectively. {¶ 5} When the team reached appellant’s doorway, they encountered a m etal security door. R.K. opened the security door and let it hang t o the right side of the doorway. Officer B.K., who remained on the front lawn, then fi red a distractionary device through the front window of the residence. The device c onsisted of small wooden dowels, known as “knee knockers,” which bounce through the room into which they are fired with the purpose of distracting any individuals present. Immediately after the knee knockers were deployed, R.J. shouted “police, search warrant.” Nearly simultaneously, P.F. swung a battering ram into the residence’s front door forc ing it open. R.K., serving as the “point man” and carrying a shotgun, immediately proceede d through the now-open doorway.4. {¶ 6} Upon entering the doorway, R.K. looked to his left to see appel lant holding a pistol aimed at him. Appellant began firing and R.K. immediate ly retreated through the doorway and yelled “shots fired.” R.K., R.J. and P.F. remained on appellant’s porch until appellant stopped shooting. At that point, they, along with th e remaining SWAT team members entered the residence and found appellant lying on a co uch. The firearm appellant used was not immediately observable. The SWAT team c ompleted a search of the house and located appellant’s wife in the kitchen. They se cured appellant and began searching the area in his immediate vicinity. In doing so, R.J . moved a sheet from the couch and discovered a pistol. Appellant was then arrested. {¶ 7} While the SWAT team was executing the warrant, J.P. was tasked with watching the exterior of the residence to assist in apprehendin g any individuals running away. As the doorway was breached, J.P. began walking closer t o the residence. As he moved, he was struck in the face by one of the bullets appellan t fired. J.P. received medical treatment at the scene and was transported by ambulance to the hospital. J.P. suffered significant injuries and ultimately underwent surgery to replace a portion of his jawbone with titanium. At the time of trial, J.P. was schedule d to undergo a second surgery to replace the titanium with bone cultivated from his l eg. No other officers suffered physical injuries during the incident. {¶ 8} Appellant testified at trial. He stated that at approximately 1:30 A.M. on the morning of the incident, he fell asleep on his couch while watc hing television. At that time, he was tired and disoriented as a side effect of prescrib ed painkillers he was taking5. following a recent surgery. He next recalled awakening to the sound of glass breaking and feeling glass falling on him. He stated he was confused du e to the effects of the painkillers and took a moment to process what was happening. A lso, he was already nervous about someone breaking into his residence due to a wind ow at the rear of the house having been broken earlier in the evening. After he awok e, he heard a second window break and reached for a gun sitting nearby. He then hea rd a commotion on the porch and saw his door knob turning suggesting someone was tryi ng to gain entry to the residence. He immediately fired his gun toward the door. He t estified that prior to firing the weapon that the door did not open and no officers had enter ed the residence. He stated his reasoning for firing the gun was that he feared for his and his wife’s safety. Finally, appellant testified that after he finished firing his weapon, he saw the SWAT officers entering the doorway and, realizing they were police o fficers, laid back down and held his hands up. As the officers approached him, appellant o ffered an apology and stated he did not realize he was shooting at police officers. {¶ 9} Appellant was charged with seven counts of felonious assault of a peace officer—one count each for six SWAT team members and one count for J.P.—each including a firearms specification. Appellant was also charged with possession of a firearm while under disability. On June 14, 2018, following a four-day trial, the jury found appellant guilty on all counts. 1 Appellant was immediately sentenced. On the

1 Appellant does not assign any error to his conviction on Count 8 of the indictment.6. following day, June 15, 2018, the trial court’s judgment entry sentencing appellant to an aggregate prison sentence of 47 years and imposing costs of pro secution, appointed counsel fees, and costs, was filed. Appellant timely appeals f rom the trial court’s judgment and asserts the following errors for our review: 1. The trial court erred in denying appellant’s Crim.R. 29 mo tion; 2. The jury’s verdict was against the manifest weight of the evidence presented at trial; and 3. The trial court committed error to the prejudice of appell ant by imposing the costs of prosecution without consideration of appe llant’s present or future ability to pay.

A. Crim.R. 29 Motion {¶ 10} In his first assignment of error, appellant argues that the tri al court erred in denying his Crim.R. 29 motion for acquittal on Counts 3, 4, and 7. These counts charged appellant with felonious assault of three different police offi cers—R.J., P.F., and D.M. Felonious assault is a violation of R.C. 2903.11(A) which state s: No person shall knowingly do either of the following: (1) Cause serious physical harm to another or to another’s unb orn; (2) Cause or attempt to cause physical harm to another or to another’s unborn by means of a deadly weapon or dangerous ordna nce.7. Appellant was convicted of violations of R.C. 2903.11(A)(2). H e argues that the evidence the state introduced was insufficient to support a con viction on Counts 3, 4, and 7. We disagree. {¶ 11} In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the prosecution and deter mine whether “any rational

trier of fact could have found the essential elements of the cr ime proven beyond a reasonable doubt.” (Internal citations omitted.) State v. Smith , 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In making that determination, the appel late court will not weigh the evidence or assess the credibility of the witnesses. State v. Were , 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 132. Whether there is suffic ient evidence to support a conviction is a question of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In denying appellant’s Crim.R. 29 motion fo r acquittal, the trial court determined the state presented sufficient evidence on Counts 3, 4, and 7 to allow those charges to be determined by the jury. {¶ 12} Appellant makes two arguments why the trial court’s denial of h is Crim.R. 29 motion constitutes error. Appellant’s first argument conten ds the enhancement of his felonious assault convictions to a first-degree felony was erro r because he did not know the individuals entering his residence were peace officers. Ge nerally, a violation of R.C. 2903.11(A) is a second-degree felony. However, when the victim is a peace officer, the offense is enhanced by operation of law to a first-degree felon y. R.C. 2903.11(D)(1)(a). Appellant argues that because the state did not present suffici ent evidence that he knew8. the victims were peace officers, the peace officer enhancement should not apply to his convictions. Appellant’s argument presumes the state had the b urden of proving appellant knew at the time of the shooting that the victims wer e police officers. {¶ 13} We have previously considered this specific argument and found it to be

without merit. In State v. Phillips , 6th Dist. Wood Nos. WD-16-020, WD-16-028, WD-16-029, 2017-Ohio-7107, we held “[t]he state need not have p roved that [a defendant] knew that he was shooting at a police vehicle in ord er to enhance the offense under R.C. 2903.11(A)(2)(D)(1), the peace officer specification .” Id. at ¶ 60, citing State v. Mundy , 9th Dist. Medina No. 05CA0025-M, 2005-Ohio-6608, ¶ 9-10; see also State v.

Middleton , 5th Dist. Stark No. 1997CA00158, 1998 WL 516304 (Jan. 20, 199 8). Because the state was not required to present evidence appellan t knew the victims were peace officers, appellant’s Crim.R. 29 motion fails as a matter of law. {¶ 14} Appellant next argues that the state failed to present sufficie nt evidence he was aware of the number of SWAT team members preparing to enter on the no-knock warrant. Because he was unaware of the number of officers, app ellant argues, he could not have knowingly attempted to cause those unknown officers ph ysical harm in violation of R.C. 2903.11(A)(2). This argument is also without merit. {¶ 15} We have previously determined that a defendant’s knowledge of t he number of potential victims is unnecessary in proving the eleme nts of felonious assault.

In State v. Gowdy , 6th Dist. No. E-06-071, 2009-Ohio-385, ¶ 28-29, defendant Gow dy and a codefendant were charged with two counts of complicity to commit felonious9. assault. Gowdy and his codefendant’s charges were premised on the discharge of a firearm into the residence of a Sandusky County police departme nt detective. Gowdy and his codefendant were found driving together in the vicinity of the shooting. The van in which they were driving was fitted with a holster designed t o carry a .380 semiautomatic or automatic pistol. Gunshot residue was found o n the van’s door frames and windows as well as Gowdy’s hands. Additionally, the bullet fired into the detective’s home, as well as one found nearby, were determined to have been fired from the same .380 semiautomatic or automatic pistol. The bullet passed thro ugh a window just above where the detective and his wife were sleeping. Based on this evidence, Gowdy was charged with and convicted of two counts of complicity to commi t felonious assault. The

victims of these counts were the detective and his wife who wer e both asleep in the

residence at the time of the incident. {¶ 16} Following his conviction, Gowdy appealed and argued the state f ailed to present sufficient evidence that either he or his codefendant w ere aware the detective and his wife were present in the home at the time the firearm was d ischarged into their window. We rejected this argument finding “[f]iring a pistol i nto a window, without knowing who could be behind it, satisfies a knowing attempt to cause physical harm.”

Id. , citing State v. Elko , 8th Dist. Cuyahoga No. 83541, 2004-Ohio-5209, ¶ 54. The evidence showed a bullet was fired into the residence through a window immediately above where the victims were sleeping. We concluded this evide nce was sufficient to satisfy the elements of R.C. 2903.11(A)(2). Gowdy and his acco mplice’s alleged lack of10. knowledge as to who occupied the residence at the time of the i ncident had no impact on the sufficiency of the state’s evidence. Id. {¶ 17} We reach the same conclusion here. The evidence presented by t he state

reflects that Officers R.J. and P.F. were on the left side of t he doorway when D.K. entered the residence. They remained in this position when app ellant began firing the weapon. R.J. testified that he was directly behind D.K. P.F. testified that the gunfire was coming from his left just inside the doorway. At the same time , D.M. was positioned just off the front porch with a view of the doorway. D.M. testified that he could hear the gunshots to his left as he watched the exterior of the residenc e to determine if any individuals exited through another door. {¶ 18} The state also presented testimony from Detective Terry Cousino of the Toledo Police Department’s Scientific Investigation Unit. Dete ctive Cousino created a

reconstruction of the scene and determined that R.J. was in the direct line of fire of

bullets that entered the door frame. Cousino also testified th at P.F. and D.M. were not in the direct line of fire of any shots analyzed but he considered them to be at risk based on their proximity to the gunfire. {¶ 19} Just as in Gowdy , appellant indiscriminately fired a gun into an area without knowledge of how many individuals he might endanger. I n both cases, it is the firing of a weapon into an area without knowledge of its occupa nts that is sufficient to establish a knowing attempt to cause physical harm. In this ca se, victims D.K., P.F., and11. D.M. occupied the area into which appellant fired and the state presented sufficient evidence as to appellant’s knowing attempt to cause them physic al harm. {¶ 20} Viewing this evidence in a light most favorable to the prosecut ion we find that a rational juror could find the “knowingly” element of Cou nts 3, 4, and 7 were proven beyond a reasonable doubt. 2 Smith , 80 Ohio St.3d at 113, 684 N.E.2d 668. Therefore, we find the state presented sufficient evidence in s upport of these counts and properly denied appellant’s Crim.R. 29 motion for acquittal. A ppellant’s first assignment

of error is found not well-taken. B. Manifest Weight {¶ 21} In appellant’s second assignment of error, he alleges the jury’ s verdict was against the manifest weight of the evidence. We previously sta ted: [w]hen examining whether a conviction was contrary to the manif est weight of the evidence, the appellate court serves as a ‘thirte enth juror’ to conclude whether the trial court lost its way so significantly as to result in a

2 We note the state’s argument that appellant’s intent to cause great physical harm to R.K transferred to the victims identified in Counts 3, 4, and 7. W e agree that proof of the mens rea element requiring knowing conduct for a felonious assa ult conviction can be shown through transferred intent. State v. Dean , 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 144; State v. Reese , 1st Dist. Hamilton Nos. C-060676 and C-060577, 2007-Ohio-4319, ¶ 23. However, under our holding in Gowdy an offender knowingly attempts to cause physical harm to those in proximity to their conduct in using a deadly weapon. Appellant’s conduct shows his knowing conduct was dire cted at the victims identified in Counts 3, 4, and 7 as they were in close proximit y to the bullets appellant fired. It is not necessary to analyze transferred intent to re solve this particular appeal.12. manifest miscarriage of justice, necessitating that the convict ion be overturned. In reaching this determination, we grant substanti al deference to the trial court's decision given its unique opportunity to c onsider the evidence presented and to closely observe and assess the demean or and credibility of the witnesses.”

State v. Butler , 6th Dist. Lucas No. L-08-1390, 2010-Ohio-178, ¶ 11 (internal citations omitted). We note that questions regarding the “weight and cre dibility of evidence are primarily for the trier of fact.” State v. Teal , 6th Dist. Lucas Nos. L-15-1280 and L-15-1281, 2017-Ohio-7202, ¶ 58, citing State v. Pena , 6th Dist. Lucas No. L-12-1309, 2014-Ohio-423, ¶ 22. This court’s “discretionary power to gran t a new trial should be exercised only in the exceptional case in which the evidence we ighs heavily against the

conviction.” Thompkins , 78 Ohio St.3d at 386, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st. Dist.1983). Unde r these guidelines, we find no error in appellant’s conviction. {¶ 22} The record reflects testimony from each SWAT team member regard ing the underlying incident. Each officer testified that the team approached the doorway to appellant’s residence in the early morning hours. Once there, they opened a metal screen door. They then discharged a distractionary device through the front window of the residence. R.J. then announced their presence and that they we re serving a search

warrant. P.F. then breached the front door with a ram and D.K. entered the residence. He was immediately met with gunfire and retreated back to the p orch. After the gunfire13. ended, the team proceeded into the residence where they found a ppellant in a prone position on the couch with his hands raised. Each officer iden tified appellant as the individual who fired the weapon. Each officer also testified t hat no one touched the doorknob prior to entering the residence. {¶ 23} All of the officers utilized a security video of the incident t o assist in describing their testimony. Additionally, the state offered th e testimony of investigators to recreate the incident scene for the jury and show each victi m’s proximity to appellant’s gunfire. Detective Cousino also testified that appellant’s ver sion of events was impossible. During his investigation, Detective Cousino noted the bullets appellant fired

struck the outside of the door. He testified that this could o nly have occurred after the door had been opened and the outside portion of the door was ex posed to appellant inside the residence. Had appellant fired the bullets prior to the do or being opened, as appellant previously stated, the bullets would have struck the inside of the door. Detective Cousino testified that this scenario was impossible based on the physic al evidence recovered from

the scene. {¶ 24} In his own testimony, appellant does not deny firing a weapon. He stated, however, that after he heard his front window shatter he saw hi s doorknob being turned. He stated that he feared for his and his wife’s safety because a different window had been broken late the previous evening and he thought that someone wa s now breaking into his home. Appellant also attributed his action to his confused sta te as a side effect from prescribed pain medication. Appellant stated that because of t his confusion and his fear14. of harm from an intruder, he began firing a weapon at the door prior to its opening. Appellant did not introduce any evidence or elicit testimony fr om an expert witness regarding how his prescribed medication impacted his ability to perceive these events. {¶ 25} On cross-examination, appellant conceded that he did not file a police report for the window which was broken earlier in the night. H e also acknowledged that he did not discharge a firearm in response to the window breaki ng earlier. When questioned about apparent inconsistencies in his testimony when compared to video of the incident, appellant disputed the authenticity of the video and its accompanying audio. Finally, despite his argument that he acted in self-defense, ap pellant stated during his testimony “I wasn’t acting in self-defense.” Neither appellant nor his counsel made any effort to explain or clarify this statement. {¶ 26} Having reviewed the record, including the physical evidence and witness testimony, we cannot say that the jury clearly lost its way and created a manifest miscarriage of justice. We find the state presented substantia l evidence supporting each element of the felonious assault charges against defendant. Fu rther, we do not find that the jury lost its way in denying appellant’s claim of self-defe nse following his inconsistent testimony. For these reasons, the jury’s verdict was not against the manifest weight of the evidence and appellant’s second assignment of err or is found not welltaken.15. C. Costs {¶ 27} Appellant’s third assignment of error argues the trial court er red in imposing the costs of prosecution, court-appointed counsel fees , and costs of confinement without first determining whether appellant had the ability, or would have the ability in the future, to pay these costs. We agree, in part. {¶ 28} The costs of prosecution are mandatory and their imposition aga inst a defendant is not conditioned on their ability to pay. State v. Lantz , 6th Dist. Fulton No. F-18-011, 2019-Ohio-3307, ¶ 12, 18. The trial court properly i mposed these mandatory costs against appellant. {¶ 29} However, appointed counsel fees and confinement costs are not m andatory and “must be conditioned on appellant’s ability to pay.” State v. Wymer , 6th Dist. Lucas No. L-18-1108, 2019-Ohio-1563, ¶ 14. Prior to imposing these non-mandatory costs, “the trial court must affirmatively find that the defendant has , or reasonably may be expected to have, the ability to pay.” Id. ; State v. Grey , 6th Dist. Lucas No. L-15-1072, 2015-Ohio-5021, ¶ 21. While the court need not conduct a forma l hearing as to the defendant’s ability to pay these costs, a finding of his abilit y to pay must be supported by clear and convincing evidence in the record. Id. When the record on appeal contains no evidence reflecting the trial court’s consideration of present or future ability to pay these costs—such as consideration of defendant’s age, health, employm ent history, or level of education—the imposition of these costs is improper and must be vacated. State v.

Stovall , 6th Dist. Lucas No. L-18-1048, 2019-Ohio-4287, ¶ 37.16. {¶ 30} Here, the trial court failed to make any finding regarding appe llant’s ability to pay the non-mandatory costs at his sentencing hearing. The trial court’s judgment entry, however, reflects such a finding. Imposing these non-ma ndatory costs in the sentencing entry without engaging in the necessary analysis to determine appellant’s ability to pay them constitutes error. Wymer at ¶ 14. For that reason, appellant’s third assignment of error is found well-taken, in part, as to the tri al court’s imposition of appointed counsel fees and confinement costs. We therefore vac ate the imposition of these costs. The imposition of the costs of prosecution remain s undisturbed by this

decision.

II. Conclusion {¶ 31} Appellant’s first and second assignments of error are found not well-taken. Appellant’s third assignment of error is found well-taken, in p art, and the trial court’s imposition of appointed counsel and confinement costs are vacat ed. The June 15, 2018 judgment of the Lucas County Court of Common Pleas is affirmed, in part, and reversed and vacated, in part, as described in this decision. Appellant and the state are ordered to split the costs of this appeal pursuant to App.R. 24.

Judgment affirmed, in part, and reversed and vacated, in part.17. State v . Hill C .A. No. L-18-1160

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ________________________

_______ JUDGE Christine E. Mayle, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.