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State v. Hilliard

Court of Appeals of Ohio, First District, Hamilton

May 24, 2017

STATE OF OHIO, Plaintiff-Appellee,
GARRISON HILLIARD, Defendant-Appellant.

         Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NO. B-150874

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Ravert J. Clark, for Defendant-Appellant.


          MILLER, JUDGE.

         {¶1} Garrison Hilliard admitted to shooting his niece's boyfriend in the face with a flare gun modified to shoot .410 shotgun shells. Hilliard and members of his extended family shared a large property with two houses. Hilliard lived in the main house with his mother and his niece Samantha's children. Samantha lived in the second house-which the parties call the "pink house"-with her brother and her boyfriend, Andrew Davis, the victim. After a jury trial, Hilliard was found guilty of one count of felonious assault under R.C. 2903.11(A)(2) with two firearm specifications and an additional count of felonious assault under R.C. 2903.11(A)(1). He was also convicted of unlawful possession of dangerous ordnance with one firearm specification, which is not the subject of this appeal. The trial court sentenced him to an aggregate term of five years.

         I. Manifest Weight

         {¶2} In his first assignment of error, Hilliard argues that his convictions are against the manifest weight of the evidence because the evidence established that he acted in self-defense. A review of the manifest weight of the evidence puts the appellate court in the role of a "thirteenth juror." State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Our duty is to review the entire record, weigh the evidence, consider the credibility of the witnesses, and resolve whether the trier of fact clearly lost its way and created a manifest miscarriage of justice. Id.

         {¶3} Self-defense is an affirmative defense that legally excuses admitted criminal conduct. State v. Poole, 33 Ohio St.2d 18, 19, 294 N.E.2d 888 (1973). The accused bears the burden of proving by a preponderance of the evidence (1) that he was not at fault in creating the violent situation, (2) that he had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape was the force used, and (3) that he did not violate a duty to retreat or to avoid the danger. R.C. 2901.05(A); State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph two of the syllabus.

         {¶4} Under R.C. 2901.05(B)(1), "a person is presumed to have acted in self defense * * * when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence * * * occupied by the person using the defensive force." But that presumption does not apply "if the person against whom the defensive force is used has a right to be in, or is a lawful resident of, the residence." R.C. 2901.05(B)(2)(a).

         {¶5} Here, the evidence relating to the elements of self-defense and the Castle Doctrine presumption was contradictory. Samantha testified that she was at work that night, but she was having trouble getting her grandmother-Hilliard's mother-on the phone to check on her children. She called Davis and asked him to go see what was happening at the main house and to check on their children. Davis and Samantha both testified that Davis had a key to that house, they ate and showered there, and their children lived there.

         {¶6} Hilliard testified that he was in his home with his mother when Davis entered without permission. He stated that Davis came into the house and called him names. Hilliard told Davis to leave. The two began to struggle, after which Hilliard went back to his room. When he heard his mother tell Davis to leave, Hilliard returned and told Davis again to leave. Davis grabbed him. At which point, Hilliard admitted that he returned to his room, grabbed the flare gun and a .410 shotgun shell. When he walked back out to where Davis was, Davis began shaking Hilliard, and Hilliard aimed over Davis's shoulder and fired.

         {¶7} Davis tells another story. Davis testified that as he approached the house, he heard Hilliard screaming at his mother, calling her names, and saying "get the fuck out, bitch." From outside, Davis saw Hilliard grab his mother's arm with both of his hands. Davis entered the house and told Hilliard to go outside. Davis testified that he was trying to diffuse the situation because his children were in the house and to protect Hilliard's mother. Davis claims that Hilliard put his hands on Davis as if to remove him from the house. Next, Hilliard went to his bedroom and Davis went to the kitchen to calm down. Davis was in the kitchen for 10 to 12 seconds, then he heard Hilliard's mother scream, "Gary, stop! No Gary, stop!" At that point, Hilliard shot Davis in the face.

         {¶8} Hilliard's mother testified that Davis came in while she was putting one of the children to bed. She stated that she came out and had to separate Hilliard and Davis. She told Davis to "go on up to the pink house" and she would take care of Hilliard. Then, when she went to her bedroom, she heard a gunshot. She stated that when she saw Davis was bleeding, she asked Hilliard, "What have you done?" Hilliard responded that he told Davis to leave and he did not go, so he shot him.

         {¶9} The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass,10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The jurors were free to believe or disbelieve any of the witness testimony, and they were entitled to believe that Hilliard did not act in self-defense. Here, a jury could have believed Davis's version of events and convicted Hilliard accordingly. Hilliard admitted to shooting Davis after returning to his bedroom to retrieve and load the weapon. There was evidence that Davis was privileged to be in the main house and that Hilliard was not authorized to exclude Davis. Accordingly, the jury could reasonably have concluded that Davis did not prove self-defense and the Castle Doctrine was inapplicable. After a review of the record, we cannot ...

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