State v. Dickey , 2023 Ohio 705 ( 2023 )

[Cite as State v. Dickey, 2023-Ohio-705.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220536
TRIAL NO. B-2204164
Plaintiff-Appellee, :
:
VS. O P I N I O N.
:
DAMONTE DICKEY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: March 8, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, for Plaintiff-Appellee,
Arica L. Underwood, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} Indicted on six felony charges in the aftermath of a violent altercation in
August 2022, the trial court originally set defendant-appellant Damonte Dickey’s bail
at $190,000. Mr. Dickey posted that bail amount, and a few days later, the state
requested that the court increase his bail. At the hearing on the state’s motion,
however, the trial court sua sponte decided to hold Mr. Dickey without bail pursuant to
the statutory requirements of R.C. 2937.222. But the governing statute requires “clear
and convincing evidence” before bail can be denied, and no one produced any evidence
at the hearing (because the state was not even seeking that remedy). Because the trial
court failed to comply with the statute, we must reverse its judgment, and remand the
cause for further proceedings, including, if requested, a hearing that complies with R.C.
2937.222.
I.
{¶2} On the day of the incident precipitating his arrest, a verbal altercation
(that would soon turn violent) erupted between Mr. Dickey and victim Ramia Hobs
while Mr. Dickey drove his vehicle. According to the bill of particulars, Mr. Dickey
leapt out of his car, and fired two rounds, with one round hitting Ms. Hobs in the
thigh, and the fragments of a bullet hitting a bystander, Zhy Douglas, in her thigh.
After the shooting, Mr. Dickey returned to his car and sped away, but police tracked
him down shortly thereafter, pulled his car over, and ordered him out of the vehicle.
As officers attempted to place him under arrest, he resisted and kicked an officer in
the face during the struggle. During the subsequent search of Mr. Dickey’s car, the
officers found a loaded firearm—which he was prohibited from possessing due to a
prior drug conviction—a bag of marijuana, and a digital scale.
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{¶3} In the aftermath of the altercation, Mr. Dickey was indicted for two
counts of felonious assault in violation of R.C. 2903.11(A)(2) with specifications, one
count of felonious assault in violation of R.C. 2903.11(A)(1), one count of improperly
handling firearms in a motor vehicle in violation of R.C. 2923.16(A), one count of
having weapons while under disability in violation of R.C. 2923.13(A)(3), and one
count of assault in violation of R.C. 2903.13(A). Shortly after the indictment, the
court set Mr. Dickey’s bail at $190,000—$50,000 each for two of the felonious
assault charges and for the assault charge, and $20,000 each for the weapons under
disability charge and the improper handling of a firearm charge—which the court
required to be in the form of a secured bond, with an electronic monitoring device.
{¶4} On September 15, a surety posted the $190,000 bond amount on Mr.
Dickey’s behalf. However, to prevent Mr. Dickey’s release, the state moved to
increase his bail on September 20. In the state’s two-page motion, it devoted one
paragraph to an analysis of the factors under Crim.R. 46, and it did not contain any
record citations or attached evidence to support any of the contentions made in the
motion. The motion requested that the court increase the bond, but it did not
propose any specific amount.
{¶5} The court eventually heard the state’s argument to increase the bond
on October 25. During the hearing, the state’s attorney presented oral argument to
the court regarding the shooting, Mr. Dickey’s prior record, an explanation of the
ballistics evidence that was apparently collected, and the presence of eyewitnesses to
the altercation. However, the state offered no ballistics report or other exhibits to
the court, nor any testimony by any eyewitness or reporting officer during the
hearing.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} Although no evidence was offered about how Mr. Dickey made bond,
the trial court seemed convinced that he secured the proceeds through illicit means :
The Court: How did he make that $190,000 bond?
Counsel: He has a very supportive family. He has significant family ties. He has
done everything I’ve asked him to do. He knew exactly why we were coming here
today.
The Court: Significant ties in the drug community, selling drugs.
Counsel: He’s not selling drugs, Your Honor.
{¶7} After the prosecutor and defense counsel presented their respective
arguments, the trial court determined “it’s pretty clear he committed this crime by
clear and convincing evidence.” The court, on its own motion, revoked Mr. Dickey’s
bail, and ordered that he be held without bail. In a single assignment of error, Mr.
Dickey asserts that because no evidence was produced at the hearing, the court’s
determination to deny him bail was contrary to the requirements of R.C. 2937.222.
II.
{¶8} In light of the constitutional protections for bail, the General Assembly
has promulgated a statutory regime that a trial court must comply with before denying
an individual bail. Ohio Constitution, Article I, Section 9; R.C. 2937.222. If a person
is to be denied bail pursuant to R.C. 2937.222(A), the court must strictly adhere to the
procedural protections of R.C. 2937.222(B):
No accused person shall be denied bail pursuant to this section unless
the judge finds by clear and convincing evidence that the proof is
evident or the presumption great that the accused committed the
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OHIO FIRST DISTRICT COURT OF APPEALS
offense described in division (A) of this section with which the accused
is charged, finds by clear and convincing evidence that the accused
poses a substantial risk of serious physical harm to any person or to the
community, and finds by clear and convincing evidence that no release
conditions will reasonably assure the safety of that person and the
community.
(Emphasis added.); see State v. Murray, 1st Dist. Hamilton, No. C-220243, 2022-
Ohio-3411, ¶ 20 (“[B]efore denying certain alleged offenders[’] bail, the court must
‘find[]’ after the hearing that the state established the conditions set forth in R.C.
2937.222(B) by clear and convincing evidence.”).
{¶9} We recently discussed at length the standard of review for the denial
of bail under R.C. 2937.222, concluding that we must “review the record” in order to
ascertain whether the “trial court had sufficient evidence before it to satisfy the clear-
and-convincing standard.” State v. Sowders, 1st Dist. Hamilton No. C-220114,
2022-Ohio-2401, ¶ 28.
{¶10} “Clear and convincing evidence” is a term of art that courts have
elaborated upon over the years. Although the precise word choice might vary between
courts, no one doubts that “clear and convincing evidence” requires evidence. “ ‘Clear
and convincing evidence is evidence which shows that the truth of the facts asserted is
highly probable.’ ” Disciplinary Counsel v. Stafford, 128 Ohio St.3d 446, 2011-Ohio-
1484, 946 N.E.2d 193, ¶ 55, quoting In re B.D.-Y., 286 Kan. 686, 187 P.3d 594 (2008).
“The [clear and convincing evidence] standard requires the judge to have a firm belief
or conviction about the facts adduced.” In re J.V., 134 Ohio St.3d 1, 2012-Ohio-4961,
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979 N.E.2d 1203, ¶ 20; see In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d
809, ¶ 42, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
three of the syllabus (defining clear and convincing evidence as “that measure or degree
of proof which is more than a mere ‘preponderance of the evidence,’ but not to the
extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases,
and which will produce in the mind of the trier of facts a firm belief or conviction as to
the facts sought to be established”).
{¶11} To be sure, in the denial of bail context, the rules of evidence do not
apply. See R.C. 2937.222(A) (“The rules concerning admissibility of evidence in
criminal trials do not apply to the presentation and consideration of information at the
hearing.”). That means that a court might rely on hearsay evidence, unauthenticated
videos, etc. But we see nothing in the statute that would toss the entire “evidence”
concept out the window.
{¶12} Much to the contrary, we must be guided by the plain language of the
statute, which repeatedly mentions “clear and convincing evidence.” “ ‘When the
language of a statute is plain and unambiguous and conveys a clear and definite
meaning, there is no need for this court to apply the rules of statutory interpretation.’ ”
State v. Jeffries, 160 Ohio St.3d 300, 2020-Ohio-1539, 156 N.E.3d 859, ¶ 15, quoting
Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d 1057(2000).
{¶13} Furthermore, we cannot interpret “clear and convincing evidence” to
mean “attorney argument” without rewriting the statute. “Because our role as
members of the judiciary is not * * * to declare that the General Assembly by way of
inadvertence or inattention made a slip of the pen in an attempt to rewrite the statute
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OHIO FIRST DISTRICT COURT OF APPEALS
in a manner that is pleasing to us, we must adhere to the plain language of the statute.”
State ex rel. Clay v. Cuyahoga Cty. Med. Examiner’s Office, 152 Ohio St.3d 163, 2017-
Ohio-8714, 94 N.E.3d 498, ¶ 40.
{¶14} This case is admittedly an unusual one because the state was not seeking
a denial of bail and did not come to court armed with evidence to present to the trial
court. And while the trial court may sua sponte order a denial of bail, it still must
comply with the statutory requirements. Here, there is no question that the state did
not present any evidence at the hearing, much less clear and convincing evidence. In
the state’s brief before us, the only record citations that it includes in attempting to
defend the trial court’s ruling are to the prosecutor’s oral argument at the hearing. As
we review the record of the hearing to ascertain whether the “trial court had sufficient
evidence before it to satisfy the clear-and-convincing standard,” see Sowders, 1st
Dist. Hamilton No. C-220114, 2022-Ohio-2401, at ¶ 28, we need not search long—no
evidence was tendered at all.
{¶15} Extant caselaw reviewing denial of bail proceedings confirms our
understanding of the evidentiary requirement baked into the statute. See State v.
Knowles, 6th Dist. Lucas No. L-22-1042, 2022-Ohio-3264, ¶ 3 (where a police detective
offered testimony about reporting to the scene, speaking to victim, speaking to a co-
defendant, and collecting evidence leading to defendant’s arrest); State v. Williams,
6th Dist. Lucas No. L-22-1012, 2022-Ohio-3858, ¶ 4-5 (where a detective offered
testimony of his investigation of a shooting that lead to concluding that defendant was
responsible); State v. Nash, 3d Dist. Wyandot No. 16-22-06, 2023-Ohio-51, ¶ 2 (where
a detective offered testimony of reporting to an active shooter situation, speaking to
witnesses, and eventually finding defendant with a handgun and a knife); State v. De
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OHIO FIRST DISTRICT COURT OF APPEALS
La Cruz, 10th Dist. Franklin No. 21AP-516, 2022-Ohio-4293, ¶ 5 (where a sergeant
testified about investigating a robbery including finding a bullet casing at the scene that
matched defendant’s weapon, defendant’s clothing matched the description given by
victims, and defendant’s confession).
{¶16} And it is well-settled that attorney statements and representations before
a court do not constitute “evidence.” State v. Kaaz, 12th Dist. Clinton No. CA2016-05-
010, 2017-Ohio-5669, ¶ 66 (“The jury was properly instructed that attorney statements
were not evidence.”); Abbott v. Abbott, 6th Dist. Fulton No. F-06-020, 2007-Ohio-
5308, ¶ 55 (“[W]e conclude that the trial court erred in its valuation of appellee’s 401(K)
account, based upon only attorney arguments[.] * * * [T]he court must inquire further,
utilizing admissible evidence or sworn testimony from the parties, to determine which
figure should be credited to appellee for the 401(K) account.”); State v. Mathia, 11th
Dist. Portage No. 92-P-0035, 1992 Ohio App. LEXIS 6217, *4 (Dec. 11, 1992)
(“[A]ttorney’s unsworn statements at the hearing are not of evidential quality; therefore
we cannot rely upon them in reaching our decision.”); Cearly v. Cearly, 12th Dist.
Butler No. CA83-05-039, 1983 Ohio App. LEXIS 15842, 6 (Dec. 19, 1983) (“Arguments
of attorneys are not evidence and we specifically reject reliance on their representations
as a substitute for an evidentiary fundament.”).
{¶17} If the state could simply offer attorney arguments to demonstrate
compliance with R.C. 2937.222, what happens when the state and defense counsel
disagree? The trial court must base its decision on “clear and convincing evidence”—
not the simple persuasive value of attorney argument. Equally important, as an
appellate court, we would be unable to undertake our review to evaluate whether the
“trial court had sufficient evidence before it to satisfy the clear-and-convincing
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standard,” see Sowders, 1st Dist. Hamilton No. C-220114, 2022-Ohio-2401, at ¶ 28,
if the record contains no evidence. The requirements and procedures embodied in R.C.
2937.222(B) exist for a reason, and we cannot simply jettison them.
* * *
{¶18} In light of the foregoing analysis, we sustain Mr. Dickey’s assignment of
error and reverse the judgment of the trial court. We accordingly remand the cause for
further proceedings, including a hearing (if sought by the state or the court) that
complies with R.C. 2937.222.
Judgment reversed and cause remanded.
ZAYAS, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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