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State v. Hill

Court of Appeals of Ohio, Eighth District

July 25, 2013


Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-562668


ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor Nicole Ellis Assistant County Prosecutor.

BEFORE Kilbane, J., Jones, P.J., and E.T. Gallagher, J.


{¶ l} Defendant-appellant, Olethus Hill, Jr., appeals from his convictions for burglary and kidnapping. For the reasons set forth below, we affirm.

{¶ 2} On June 5, 2012, defendant was indicted pursuant to an 11-count indictment in connection with a home invasion on August 23, 2011. In Count 1, defendant was charged with aggravated burglary. Counts 2 and 6 charged him with kidnapping Jane Doe and John Doe. Counts 3, 4, 7, and 8 charged him with felonious assault. Counts 5 and 9 charged him with aggravated robbery. Count 10 charged him with kidnapping Jane Doe and set forth a sexual motivation specification. Count 11 charged him with rape. Each of these counts set forth one- and three-year firearm specifications. Defendant pled not guilty, and the matter proceeded to a jury trial on September 10, 2012.

{¶ 3} The state's evidence indicated that on August 22, 2011, Brittany Giboney ("Brittany"), Brittany's sister Brooke Giboney ("Brooke"), and their friend Amber Branham ("Amber") were at work. Brittany and Brooke's brother, 16-year-old C.G., were watching Brooke's child and Amber's child at their home at 4380 East 146th Street in Cleveland. The women returned home at around 11:00 p.m. Brittany went to sleep at midnight. C.G. decided to stay with his sisters and went to sleep in Brittany's room at around 1:00 a.m.

{¶ 4} Brittany testified that she was awakened by the sound of something being moved or things falling, then heard the bedroom door open. Someone turned on the lights, and as Brittany attempted to sit up, someone pushed her head back down, put a pillow over her head, and ordered her to lie back down. She lifted her head, and someone struck her in the head with a gun. Brittany testified that she could hear at least four intruders inside the house. One of them seemed to be trying to disguise his voice.

{¶ 5} These individuals tied her hands behind her back with a cord from a video game, and they also tied C.G.'s hands behind his back using tape. They repeatedly struck C.G. in the head, causing him to sustain a large gash, and then smashed him with eggs. They also struck Brittany in the head with the gun and held the gun to her head while they demanded money and jewelry. Brittany told them that she had $200 in her purse, which they took. One of the intruders, who was dark-skinned and had dread locks, inserted the gun into her vagina and threatened to shoot her if she did not give him money. Brittany acknowledged that defendant is not dark-skinned and does not have dread locks.

{¶ 6} Brittany further testified that the intruders were inside the home for approximately 45 minutes, and they took everything of value, including cell phones, televisions, stereos, and speakers. They demanded the key to a storage closet, but Brittany did not have it.

{¶ 7} Brittany further testified that the intruders fled when they heard a loud noise in the house. After they left, Brittany and C.G. remained still for several minutes to be certain that they were gone. They then freed themselves and awoke Brooke and Amber. Amber called the police, and Brittany and C.G. were transported to the hospital.

{¶8} Brittany testified that on October 12, 2011, the police presented her with a photo array. She did not identify the defendant as one of the assailants, but she recognized him from her neighborhood. Brittany stated that he has never been a guest in her home, and that only friends and family had been inside her home.

{¶ 9} C.G. testified that he had locked up the house when he put the children to bed, but he did not recheck the doors after the women returned from work. He testified that there were at least four assailants. He believed that they entered by breaking the kitchen window. The assailants were dressed in black and their faces were covered, but he did not believe that they were wearing gloves. He stated that he was repeatedly struck with the gun, and that he could hear Brittany crying while she was being attacked. He stated that the assailants repeatedly threatened him and also threatened to wake up the children sleeping in the other room if C.G. and Brittany did not give them money. C.G. testified that he does not know the defendant and has never seen him prior to trial.

{¶10} Amber and Brooke testified that the house was ransacked. A large screen television that Amber had recently purchased was missing, as were video game systems, phones, jewelry, and a laptop. The kitchen window was broken, the back door was propped open, and their dog was missing. These witnesses also established that two days before the incident, they had just cleaned their house and dusted everything. Cleveland police officers responded to the scene. Neither witness knows the defendant, nor have they ever invited him into their home.

{¶11} Detective Michael Belle photographed the house and recovered six latent fingerprints. The police also examined masking tape found at the scene; however, it had an insufficient amount of DNA to conduct an analysis.

{¶12} Following voir dire, certified latent print examiner Felicia Simington ("Simington") was recognized as an expert witness by the trial court. Simington testified that the fingerprints recovered herein were of good quality and were entered into the Automated Fingerprint Identification System ("AFIS"). Four of the latent prints that were taken from the television stand, which included two palm prints and two fingerprints, matched defendant's known fingerprints. The match was confirmed by another certified fingerprint examiner. According to Simington, one latent print had 15 points of identification with defendant's known left index finger. Another latent print had 25 points of identification with defendant's left palm print. Other latent prints matched defendant's known left middle finger and his left index finger. Prior to trial, defendant was re-fingerprinted to verify that the fingerprints that Simington considered as defendant's known prints were his actual fingerprints.

{¶13} Cleveland Police Detective Jack Lent ("Detective Lent") testified that he took statements from Brittany and C.G. After the fingerprint match was established, Detective Lent prepared a six-person photo array for Brittany. She recognized defendant's photograph as someone from her neighborhood. Detective Lent obtained an arrest warrant for defendant, but he was unable to locate him. Detective Lent also decided against seeking a search warrant for defendant's premises because too much time had passed before the officers could determine defendant's address. Detective Lent obtained defendant's cell phone number, but phone records and tower information that would have pinpointed defendant's whereabouts were no longer available. Detective Lent admitted on cross-examination that some of the details that the victims initially provided to police were later determined to be incorrect, including claims that the assailants gagged Brittany and C.G.

{¶ l4} On May 30, 2012, Lakewood Police Officer Anthony Ceresi ("Officer Ceresi") stopped defendant's vehicle because the license plate light was out. Officer Ceresi then arrested him on the outstanding arrest warrant issued in Cleveland.

{¶15} Following the presentation of the state's case, defendant moved for a judgment of acquittal. The trial court permitted the state to amend the felonious assault charges in Count 3 and Count 8 to misdemeanor assault. The court then denied the Crim.R. 29 motion in its entirety.

{ΒΆ l6} Defendant was convicted of burglary, a lesser included offense of aggravated burglary, as alleged in Count 1, and the three-year firearm specifications for this offense; guilty of kidnapping as alleged in Counts 2 and 6 of the indictment, and the three-year firearm specifications for these offenses; guilty of misdemeanor assault as alleged in amended Counts 3 and 8; not guilty of felonious assault as alleged in Counts 4 and 7; guilty of aggravated robbery as alleged in Counts 5 and 9 as well as the ...

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