[Cite as State v. Hicks-Stevens, 2023-Ohio-4307.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 112329 v. :
ANTHONY HICKS-STEVENS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 30, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-646675-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Brad S. Meyer, Assistant Prosecuting Attorney, for appellee.
Michael Gordillo, for appellant.
SEAN C. GALLAGHER, J.:
Appellant Anthony Hicks-Stevens appeals his conviction and
sentence. Upon review, we affirm.
On December 9, 2019, appellant was indicted on multiple counts that
stemmed from two incidents. The first incident, which occurred on July 5, 2019, involved a robbery that occurred outside of Diamond Quality Roofing in Cleveland
in which two individuals, believed to be appellant and his codefendant Willie Lee
Jr., took cash and a company credit card from three company employees at
gunpoint. The second incident, which occurred in November 2019, involved an
Instagram video in which appellant filmed himself holding two firearms while under
disability, and the subsequent discovery that one of the firearms that was recovered
was stolen.
During the course of the proceedings, appellant was assigned new
counsel, he later retained new counsel, and the case was reassigned to another trial
judge for good cause shown. The defendant requested multiple continuances in the
matter. The trial court also ordered a number of continuances with reference to the
Covid-19 pandemic. Trial commenced on April 25, 2022. The testimony is
summarized in the briefs of the parties.
At the conclusion of trial, the jury returned a verdict of guilty on three
counts of aggravated robbery and three counts of robbery, with one- and three-year
firearm specifications on each of those counts. The trial court found appellant guilty
of having weapons while under disability with forfeiture specifications. The jury
found appellant not guilty of receiving stolen property. The case proceeded to
sentencing in December 2022, after sentencing was reset multiple times at
appellant’s request. The trial court merged the aggravated robbery and robbery
offenses as related to each victim, and the state elected to proceed on the aggravated
robbery counts. The trial court imposed a total sentence of 15 years in this case. Appellant timely filed this appeal. He raises six assignments of error
for our review.
Under his first assignment of error, appellant claims “the trial court
prejudiced appellant and committed reversible error by incorrectly advising the
Petit Jury that the Grand Jury’s indictment meant that the Grand Jury found
Appellant was ‘more likely than not’ guilty.”
Because no objection was raised in the trial court, appellant forfeited
this issue, absent plain error. To establish plain error, an appellant “must show that
an error occurred, that the error was plain (i.e., the error was an ‘obvious’ defect in
the trial proceedings), and that but for the error, the outcome of the trial clearly
would have been otherwise.” State v. Whitaker, 169 Ohio St.3d 647, 2022-Ohio-
2840, 207 N.E.3d 677, ¶ 39, citing State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d
1240 (2002). “[P]lain error should be found only in exceptional circumstances and
only to prevent a manifest miscarriage of justice.” State v. Hill, 92 Ohio St.3d 191,
203, 749 N.E.2d 274 (2001), citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804
(1978), paragraph three of the syllabus.
Appellant has not argued or demonstrated any plain error occurred.
The record herein reflects that during the voir dire, the trial court differentiated the
grand-jury process and explained that it is a “much different experience” and that
the burden of proof in the grand jury is a much lower standard of proof than the
burden the state has at trial, which is “[b]eyond a reasonable doubt.” The court then
stated “[i]n the Grand Jury it’s probable cause. It’s more likely than not. Grand jurors only have to believe that it’s more likely than not a crime occurred and this
person’s involved.”
Appellant argues that the trial court’s statement was erroneous and
that he was prejudiced thereby because it essentially conveyed that the grand jury
found it was more likely than not that appellant committed the indicted offenses.
However, the record shows the trial court proceeded to inform the jurors that “the
fact that there are indictments in this case is not evidence of anything. You can’t
consider this as evidence in any way” and that there is a presumption of innocence
and the state was required to prove the “essential elements beyond a reasonable
doubt.” The trial court continued to ensure the jurors understood the state’s burden
at trial.
Viewed as a whole, the instructions were sufficiently clear to enable
the jury to understand the state’s burden of proof at trial. Additionally, upon the
record before us, appellant has failed to demonstrate that but for the claimed error,
the outcome of the trial clearly would have been otherwise. Finding no plain error
has been shown, we overrule the first assignment of error.
Under the second assignment of error, appellant claims that he was
“tried in violation of his constitutional and statutory rights to a speedy trial.”
Appellant concedes he did not raise a speedy-trial issue in the trial
court. Generally, a defendant’s failure to raise the violation of speedy-trial rights in
the trial court constitutes a waiver of the issue on appeal. See e.g., State v. Kendrick,
1st Dist. Hamilton No. C-220459, 2023-Ohio-1763, ¶ 12; State v. Allen, 7th Dist. Columbiana No. 22 CO 0002, 2022-Ohio-4360, ¶ 21-22; State v. Robinson, 8th Dist.
Cuyahoga No. 110467, 2022-Ohio-1311, ¶ 58, citing State v. Mango, 8th Dist.
Cuyahoga No. 103146, 2016-Ohio-2935, ¶ 18; State v. Wells, 8th Dist. Cuyahoga
No. 109787, 2021-Ohio-2585, ¶ 44. Although appellant asserts the issue should be
reviewed for plain error, this case does not present exceptional circumstances to
warrant any finding that plain error occurred.
R.C. 2945.71 codifies both the state and federal constitutional speedy-
trial guarantees and includes a number of tolling provisions. See State v. Martin,
156 Ohio St.3d 503, 2019-Ohio-2010, 129 N.E.3d 437, ¶ 15. “Pursuant to R.C.
2945.72(H), ‘[t]he time within which an accused must be brought to trial * * * may
be extended’ by ‘[t]he period of any continuance granted on the accused’s own
motion, and the period of any reasonable continuance granted other than upon the
accused’s own motion.’” Martin at ¶ 15, quoting R.C. 2945.72(H).
Appellant argues that the total length of time of 872 days that he spent
in jail awaiting trial was not reasonable and amounted to a violation of his right to a
speedy trial. Appellant does not mention the many continuances and delays
attributed to him. Appellant simply advocates against application of In re
Disqualification of Fleegle, 161 Ohio St.3d 1263, 2020-Ohio-5636, 163 N.E.3d 609,
in addressing the reasonableness of pandemic-related continuances. In Fleegle, the
Supreme Court of Ohio observed that “trial judges have the authority to continue
trials for defendants on a case-by-case basis without violating speedy-trial
requirements” and that “continuing a trial because of a pandemic state of emergency is ‘reasonable’” for purposes of R.C. 2945.72(H).1 In re Fleegle at ¶ 7. Appellant
maintains that Fleegle, which was decided in December 2020, is “outdated,” but he
cites no authority in support of his argument.
Insofar as appellant requests this court to address the reasonableness
of the time involved in this case and makes a conclusory assertion that 872 days is
not reasonable, he fails to present any tangible argument to this court. The record
shows the trial court fully explained and justified the continuances attributed to the
Covid-19 pandemic. The trial court noted reasons such as the unavailability of
juries, court administrative orders that were in place, and the continued risk of
community spread of the Covid-19 virus. Also, during that time frame, the
defendant requested several continuances, there were ongoing plea negotiations,
the parties continued to exchange discovery, appellant retained new counsel, and
there was a recusal by the original trial judge.
Appellate courts are not obligated to create, nor should they sua
sponte provide, arguments on behalf of parties. See State v. Quarterman, 140 Ohio
St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 19. Therefore, to the extent appellant
fails to fully develop a speedy-trial argument on appeal, we need not further address
his claim. See State v. Perdew, 4th Dist. Ross No. 20CA3702, 2021-Ohio-3075, ¶ 26.
Appellant has failed to demonstrate plain error or to establish any violation of his
1 R.C. 2945.72(H) provides that speedy-trial time may be extended by “[t]he period
of any continuance granted on the accused’s own motion, and the period of any reasonable continuance granted other than upon the accused’s own motion.” statutory or constitutional speedy-trial rights. The second assignment of error is
overruled.
Under his third assignment of error, appellant claims his convictions
are not supported by sufficient evidence.
First, appellant challenges the evidence of identity as it pertains to
his aggravated-robbery convictions. Appellant argues that there was insufficient
evidence identifying him as one of the robbers involved in the crimes.
“Every criminal prosecution requires proof that the person accused of
the crime is the person who committed the crime.” State v. Tate, 140 Ohio St.3d
442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 15. “Like any fact, the state can prove the
identity of the accused by ‘circumstantial or direct’ evidence.” Id., citing State v.
Jenks, 61 Ohio St.3d 259, 272-273, 574 N.E.2d 492 (1991). “The relevant question
in a sufficiency-of-the-evidence review 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.’” Id., quoting
Jenks at paragraph two of the syllabus.
Appellant argues there was a lack of direct evidence linking him to
robbery, and he challenges the circumstantial evidence presented. As this court has
recognized, “[p]roof of guilt may be made by circumstantial evidence, which
‘requires the drawing of inferences that are reasonably permitted by the evidence[.]’”
State v. Mills, 8th Dist. Cuyahoga No. 107233, 2019-Ohio-706, ¶ 19, quoting State
v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. In this matter, ample circumstantial evidence was presented, from which reasonable inferences
could be drawn as to appellant’s identity as one of the robbers.
During trial, testimony was presented regarding the circumstances
surrounding the robbery incident, which involved two masked men robbing three
individuals at gun point outside of Diamond Quality Roofing in Cleveland, which is
where the victims were employed. The testimony and evidence showed the two
robbers arrived and left the scene of the robbery together. Surveillance video
captured the robbery and depicted a Mitsubishi that was used by the robbers as the
getaway car. The vehicle was linked to appellant’s codefendant, Willie Lee Jr. Lee
admitted at trial that he was one of the robbers but denied that appellant was the
other. However, the state recovered a video on Lee’s phone that was taken ten
minutes after the robbery occurred. The video also was posted by Lee on Instagram
ten minutes after the robbery and was shared on Instagram by appellant
approximately an hour later. The video, which was taken in close proximity to the
time of the robbery, revealed appellant was inside Lee’s Mitsubishi flashing a large
amount of money. He was wearing clothes and boots matching those of one of the
robbers involved in the commission of the crime, and he had a ski mask rolled up on
his head. Appellant acknowledged during his testimony that he is the person seen
in the video recovered from Lee’s phone, but claimed the similarities involved were
“pure coincidence.” Although appellant denied the money he was holding in the
video was from the robbery, Lee testified that it was. There also was testimony and evidence suggesting appellant and Lee
had inside knowledge in furtherance of the robbery. The testimony showed that on
the day of the robbery, the victims had already cashed their paychecks; they still had
their money on them and one of them had a company credit card; and they were out
back of their work building when they were robbed. Appellant’s cousin, Quinton
Hicks, also was employed by Diamond Quality Roofing and had left the scene shortly
before the robbery in a work truck and returned shortly after the robbery had
occurred. Minutes before the robbery, Lee was texting with a third party. The text
messages included the address where the robbery was to occur, directions to the
location, reference to the police, mention of a work truck, and other information
pertaining to the robbery.
Viewing the evidence in this matter in a light most favorable to the
prosecution, we find any rational trier of fact could have found that appellant was
one of the robbers involved in committing the offenses and that the essential
elements of the crime were proven beyond a reasonable doubt.
Next, appellant challenges his conviction for having weapons while
under disability. The indictment alleged the offense occurred on or about
November 15, 2019. At trial, the state presented a video that shows appellant with
two firearms in his hands while in the living room of Willie Lee’s grandmother’s
house. Appellant argues that the state failed to prove the date the video was made.
The record reflects that a detective involved in the case testified that
in November 2019, while she was monitoring Lee’s jail phone calls, she learned the whereabouts of two firearms that Lee described as being in the living room of his
grandmother’s house. About the same time, the detective also was monitoring
appellant’s Instagram and observed a video posted of appellant with the firearms in
what appeared to be the living room of Lee’s grandmother’s house. Upon viewing
the video and listening to Lee’s jail phone call, the detective obtained a search
warrant on November 13, 2019. Two days later, on November 15, 2019, the search
warrant was executed and the same type of firearms observed in the video were
recovered from the living room of Lee’s grandmother’s house. Appellant’s
identification card and social security card were found in the same room. We find
that sufficient evidence was presented from which the trier of fact could conclude
the offense occurred on or about the date the detective viewed the video in
November 2019.
The third assignment of error is overruled.
Under his fourth assignment of error, appellant claims his
convictions are against the manifest weight of the evidence. This argument focuses
upon the aggravated robbery. In challenging his convictions, appellant argues that
the state’s case was built upon insinuations, that the state invited the jury to find
him guilty by association with Lee, and that there was a lack of actual evidence
pointing to appellant’s guilt. Appellant makes a number of assertions, points to
limited testimony, and maintains that he offered a plausible alternative to the state’s
theory, in which he claimed that Lee and a man named “Boogey” were the robbers, that he was picked up by Lee after the robbery, and that he was flashing his own
money in the video. We are not persuaded by his argument.
When evaluating a claim that a verdict is against the manifest weight
of the evidence, “we review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and determine whether in resolving
conflicts in the evidence, the [trier of fact] clearly lost its way and created such a
manifest miscarriage of justice that we must reverse the conviction and order a new
trial.” State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 168,
citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
Reversing a conviction based upon the weight of the evidence should occur “‘only in
the exceptional case in which the evidence weighs heavily against the conviction.’”
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983).
In this case, substantial circumstantial evidence was presented to
establish appellant’s commission of the robbery offenses. The video evidence was
compelling. Not only was a video taken of appellant in the getaway vehicle minutes
after the robbery occurred, but he matched the appearance of one of the robbers who
appeared in the surveillance video, and he was flashing money that Lee testified was
from the robbery. The trier of fact could have reasonably inferred from all the
testimony and evidence presented that appellant was involved in the robbery and
had some inside knowledge for committing the offenses. The state’s witnesses were
convincing and presented a credible version of events that was corroborated by the evidence presented. Appellant’s version of events was unpersuasive and self-
serving. We do not find that the trier of fact clearly lost its way or that this is the
exceptional case in which the evidence weighs heavily against the convictions. The
fourth assignment of error is overruled.
Under his fifth assignment of error, appellant claims the trial court
erred by permitting prejudicial hearsay testimony into evidence. Specifically, he
challenges the introduction of the text-message conversation obtained from Lee’s
phone that was with a number that was not identified. An appellate court “will not
reverse a trial court’s ruling on evidentiary issues absent an abuse of discretion and
proof of material prejudice.” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-
5735, 70 N.E.3d 508, ¶ 181, citing State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-
1581, 74 N.E.3d 319, ¶ 116.
Contrary to appellant’s assertion, the state never insinuated that the
text-message conversation was between Lee and appellant. Rather, the state’s
theory was that appellant and Lee were together in Lee’s vehicle before the robbery,
and that a third party was sending text messages to Lee’s phone with directions to
the location where the robbery would occur and other information in furtherance of
the robbery. The conversation included reference to the police, instructions such as
“[d]on’t be doing the dash,” and mention of taking a “work truck.”
The statements were not hearsay because they were not offered for
the truth of the matter asserted. See Evid.R. 802(C); State v. Wallace, 1st Dist.
Hamilton No. C-160613, 2017-Ohio-9187, ¶ 53. Rather, the conversation was offered to show that information relating to the robbery was being conveyed to Lee
minutes before the robbery occurred. A detective testified that the text messages
appeared to be two of the conspirators discussing the plan minutes before the
robbery occurred.
Pursuant to Evid.R. 801(D)(2)(e), hearsay does not include “a
statement made by a co-conspirator of a party during the course and in furtherance
of the conspiracy upon independent proof of the conspiracy.” The proponent of the
statement must make a prima facie showing of the existence of the conspiracy by
independent proof. State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890
N.E.2d 263, ¶ 116, citing State v. Carter, 72 Ohio St.3d 545, 651 N.E.2d 965 (1995),
paragraph three of the syllabus. “Evid.R. 801(D)(2)(e) does not require that explicit
findings of the conspiracy be made on the record.” Were at ¶ 116.
Appellant argues that there was a lack of independent proof of the
conspiracy. “‘Independent proof of conspiracy merely requires that the State
present evidence sufficient to raise the inference of conspiracy.’” State v. Johnson,
2015-Ohio-3248, 40 N.E.3d 628, ¶ 104 (10th Dist.), quoting State v. Croom, 2d Dist.
Montgomery No. 25094, 2013-Ohio-3377, ¶ 66. Here, the surveillance video
revealed that two persons were driving around together in Lee’s vehicle minutes
before the robbery, they drove back and forth in front of the robbery location several
times, and after exiting the vehicle they proceeded to the back of the building where
the victims were hanging out. Testimony revealed that Quinton Hicks, who is
appellant’s cousin, was on the scene before the robbery, left in a work truck, and returned shortly after the robbery. Appellant conceded he was in Lee’s vehicle
minutes after the robbery occurred. The state presented independent proof
“sufficient to raise the inference of conspiracy,” such that the text messages were
admissible as statements of a co-conspirator under Evid.R. 801(D)(2)(e).
Appellant also argues that the admission of the statements violated
his right to confront the witnesses against him. However, “[i]f testimony qualifies
as nonhearsay, it does not implicate the Confrontation Clause.” State v. McKelton,
148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 186, citing Crawford v.
Washington, 541 U.S. 36, 59, fn.9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Furthermore, “the Crawford court specifically identified statements in furtherance
of a conspiracy as examples of statements that are inherently nontestimonial.” State
v. Braun, 8th Dist. Cuyahoga No. 91131, 2009-Ohio-4875, ¶ 116, citing Crawford at
56. “Co-conspirator statements are inherently nontestimonial because the purpose
for making the statements is not for later use at trial.” Id., citing United States v.
Mooneyham, 473 F.3d 280, 286 (6th Cir.2007); Wallace, 1st Dist. Hamilton No. C-
160613, 2017-Ohio-9187, at ¶ 51.
Finding no abuse of discretion by the trial court, we overrule
appellant’s fifth assignment of error.
Under his sixth assignment of error, appellant claims the trial court
erred when it sentenced him to an indefinite term under S.B. 201, commonly
referred to as the Reagan Tokes Law. We summarily overrule his constitutional challenges to the Reagan Tokes Law on the authority of State v. Hacker, Slip
Opinion No. 2023-Ohio-2535.
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.
_______________________ SEAN C. GALLAGHER, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and MICHAEL JOHN RYAN, J., CONCUR