State v. Burney , 2014 Ohio 2622 ( 2014 )

[Cite as State v. Burney, 2014-Ohio-2622.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 14AP-354
v. : (C.P.C. No. 14CR-1326)
Percy R. Burney, : (REGULAR CALENDAR)
Defendant-Appellant. :
State of Ohio, :
Plaintiff-Appellee, :
No. 14AP-356
v. : (C.P.C. No. 14CR-1320)
Keith J. Pippins, Jr., : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 17, 2014
Ron O'Brien, Prosecuting Attorney and Seth L. Gilbert, for
appellee.
Meeks & Thomas, and David H. Thomas, for appellant
Percy R. Burney.
Todd W. Barstow, for appellant Keith J. Pippins, Jr.
APPEALS from the Franklin County Court of Common Pleas
CONNOR, J.
{¶ 1} Defendants-appellants, Percy R. Burney and Keith J. Pippins, Jr., appeal
from a judgment of the Franklin County Court of Common Pleas denying bail pursuant to
Nos. 14AP-354 and 14AP-356 2
a motion filed by plaintiff-appellee, State of Ohio. For the reasons that follow, we affirm
the judgment of the trial court.
I. Facts and Procedural History
{¶ 2} On March 14, 2014, a Franklin County Grand Jury issued a 42 count
indictment charging appellants and co-defendant, Jack Morris, with multiple felonies
stemming from their participation in a drug-trafficking operation dealing in heroin,
OxyContin and marijuana. The indictment also charged appellants with attempted
murder and felonious assault in connection with a drive-by shooting incident that
seriously injured Antwaun Waddell.
{¶ 3} On March 18, 2014, the State filed a motion, pursuant to R.C. 2937.222,
seeking an order denying bail. The trial court conducted a hearing on the matter on
April 16, 2014. As a result of the hearing, the trial court issued a decision on April 21,
2014, granting the State's motion and ordering appellants held without bail. Appellants
timely appealed to this court from the trial court's decision.1
II. Assignments of Error
{¶ 4} Appellant Burney assigns a single error as follows:
THE TRIAL COURT ABUSED ITS DISCRETION IN
DECIDING TO HOLD DEFENDANT-APPELLANT
WITHOUT BOND BECAUSE THE FINDINGS MADE BY
THE TRIAL COURT ARE NOT SUPPORTED BY CLEAR AND
CONVINCING EVIDENCE.
{¶ 5} Appellant Pippins assigns a single error as follows:
THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING APPELLANT BAIL AS ITS FINDINGS WERE NOT
SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
III. Standard of Review
{¶ 6} A trial court order denying bail is a final appealable order under R.C.
2937.222(D)(1) and it is considered by this court on an expedited basis pursuant to R.C.
2937.222(D)(1)(a) through (d). State v. Foster, 10th Dist. No. 08AP-523, 2008-Ohio-
3525, ¶ 6. Such an order "will not be reversed absent a showing that the trial court abused
1 Morris did not appeal from the trial court order denying him bail.
Nos. 14AP-354 and 14AP-356 3
its discretion in finding that the prosecution had met its burden of proof to show that
appellant should be denied bail." Id. at ¶ 4. The term "abuse of discretion" connotes more
than an error of law or of judgment; it implies that the court's attitude is unreasonable,
arbitrary or unconscionable. Id. at ¶ 6, citing Blakemore v. Blakemore, 5 Ohio St.3d 217,
219 (1983).
IV. Legal Analysis
{¶ 7} R.C. 2937.222 governs the proceedings upon a motion to deny bail. The
statute provides, in relevant part, as follows:
(A) * * * Regardless of whether the hearing is being held on
the motion of the prosecuting attorney or on the court's own
motion, the state has the burden of proving that the proof is
evident or the presumption great that the accused committed
the offense with which the accused is charged, of proving that
the accused poses a substantial risk of serious physical harm
to any person or to the community, and of proving that no
release conditions will reasonably assure the safety of that
person and the community.
***
(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 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.
{¶ 8} In their sole assignment of error, each appellant argues the trial court
abused its discretion by denying bail inasmuch as the state failed to produce clear and
convincing evidence that the requirements of the statute had been met. "Clear and
convincing evidence is 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." Foster at
¶ 6, quoting Cross v. Ledford, 161 Ohio St.3d 469 (1954), paragraph three of the syllabus.
Nos. 14AP-354 and 14AP-356 4
{¶ 9} The only witness who testified at the bail hearing was Detective Jeremy
Ehrenborg of the Columbus Police ("CPD"). According to Ehrenborg, CPD received both
citizen complaints and information from confidential informants that Jack Morris was
operating a large scale drug-trafficking organization. Ehrenborg testified that Detective
Keith Whitacre led the investigation into Morris' activities and that he was the second
investigator on the case. Based upon Whitacre's affidavit, CPD obtained warrants
authorizing a wire tap of cellular telephones belonging to several individuals, including
Pippins and Morris.
{¶ 10} Beginning in August 2013, investigators overheard Morris and Pippins
arranging numerous drug transactions with third-party buyers. CPD also orchestrated
several "controlled" buys of heroin from Pippins. (Tr. 23.) Pippins and Morris were
subsequently overheard discussing plans to meet their Chicago-based supplier who was
identified only as "Carlos." (Tr. 28.)
{¶ 11} In February 2013, Pippins asked Morris to come with him when he sold
drugs to a buyer who identified himself as "Ron." Pippins asked Morris to bring his
"Strap," which is street vernacular for a handgun. When Morris could not accompany
Pippins, Pippins became angry and reminded Morris that the last time he went on a drug
deal without Morris, the buyer robbed him.
{¶ 12} Later that same day, Pippins called Morris and told him that Ron had
refused to pay for the heroin and had robbed him. Pippins subsequently telephoned
Burney, who told Pippins that the man who robbed him is named Jeron Brown and that
Brown is a member of the "Bloods" street gang.
{¶ 13} The very next morning, Pippins called someone he referred to as "Unc" who
told Pippins that Jeron Brown lived down the street from him and that Brown was
currently hanging out at the corner of Ellsworth and Kossuth in a white Pontiac. Pippins
then made a call to Burney and told him to get the "choppers" ready. According to
Ehrenborg, "chopper" is street vernacular for an AK-47 assault rifle. (Tr. 35.) Ehrenborg
testified that, as he listened to this conversation, he heard the distinctive sound of an
ammunition clip loaded into a weapon.
{¶ 14} According to Ehrenborg, CPD quickly mobilized in an effort to stop the
impending assault on Brown, but they "missed them." (Tr. 36.) Shortly thereafter, CPD
Nos. 14AP-354 and 14AP-356 5
received a report of a shooting at Ellsworth. According to the report, the victim, Antwaun
Waddell, was sitting in a white Pontiac with Jeron Brown when an assailant in a red
Pontiac GTO fired shots into the vehicle. Ehrenborg testified that Morris is the registered
owner of a red Pontiac GTO.
{¶ 15} Shortly after the drive-by shooting incident, CPD intercepted a call between
Morris and Pippins wherein Morris is heard asking Pippins if there are shells in his car to
which Pippins responds, "hell yes." (Tr. 36.) According to Ehrenborg, Morris then called a
friend and asked him if he could store his GTO in the barn. Morris proceeded to take
another vehicle to Burney's house to pick up Pippins.
{¶ 16} Waddell sustained a gun shot wound to the head during the drive-by
assault. After checking with the CPD gang unit, Ehrenborg learned that Waddell had been
a member of "Deuce-Deuce Bloods" street gang since 2007. At the hearing, Ehrenborg
testified about a subsequent conversation between Jeron Brown and Pippins:
Q. (By Mr. Stanley) Phone conversationswise [sic], did Jeron
Brown speak with Keith Pippins after the shooting at all?
A. He did.
Q. Can you please describe those phone calls to the judge?
A. There was one phone call Jeron called him up and - - called
Keith Pippins up and began talking to him, saying, you
know, you didn't - - basically you didn't need to overreact,
you know. You've been in my place before, and there's
been food around, talking about narcotics, street slang.
And it's a several minute phone call, and then toward the
end, Keith asks him so what about my cheese. He's asking
for his money from the heroin that Jeron ripped him off.
***
Yeah. And [Jeron] said you shot - - you shot my dude or
you popped my dude, and then Keith said, whatever, and
clicks and hangs up on him. So that was the basis of the
conversation.
(Tr. 46, 48.)
Nos. 14AP-354 and 14AP-356 6
{¶ 17} Based upon the information gathered in the investigation, a total of 14
search warrants were issued, including two of the "no knock" variety. (Tr. 56.) Ehrenborg
testified that "no knock" warrants are requested for purposes of officer safety. (Tr. 56.)
The search of Pippins' home uncovered several firearms and a large amount of heroin;
several operable firearms were also discovered in a search of Burney's residence.
{¶ 18} When determining whether an accused poses a substantial risk of serious
physical harm to any person or to the community and whether there are conditions of
release that will reasonably assure the safety of that person and the community, a trial
court is required by R.C. 2937.222(C) to consider all of the following:
(1) The nature and circumstances of the offense charged,
including whether the offense is an offense of violence or
involves alcohol or a drug of abuse;
(2) The weight of the evidence against the accused;
(3) The history and characteristics of the accused, including,
but not limited to, both of the following: (a) The character,
physical and mental condition, family ties, employment,
financial resources, length of residence in the community,
community ties, past conduct, history relating to drug or
alcohol abuse, and criminal history of the accused; (b)
Whether, at the time of the current alleged offense or at the
time of the arrest of the accused, the accused was on
probation, parole, post-release control, or other release
pending trial, sentencing, appeal, or completion of sentence
for the commission of an offense under the laws of this state,
another state, or the United States or under a municipal
ordinance.
(4) The nature and seriousness of the danger to any person or
the community that would be posed by the person's release.
{¶ 19} The trial court issued a six-page decision on the motion. Therein, the trial
court noted that, in addition to numerous drug-trafficking offenses, the indictment
charged appellants with a RICO violation, one count of attempted murder, and two counts
of felonious assault. The trial court concluded that the nature and circumstances of the
charges against appellants weighed against appellants' release on bail. Appellants do not
disagree with this conclusion.
Nos. 14AP-354 and 14AP-356 7
{¶ 20} The trial court next determined that "for purposes of this hearing, it is also
clear that each of the Defendants were involved, either directly or as complicitors, to
those crimes with which they are charged." (Emphasis sic.) (Decision, 3.) Burney argues
that the evidence does not create a great presumption of his guilt of the drug offenses
inasmuch as he was not the "principal target" of the investigation. (Appellant Burney's
brief, 3.) He also contends that there is no "tangible" evidence of his involvement in the
drive-by shooting. (Appellant Burney's brief, 6.) Pippins maintains that the evidence does
not permit a great presumption that he committed attempted murder.
{¶ 21} Burney's argument that he was not considered a suspect at the outset of the
investigation carries little weight given the quantity of evidence subsequently uncovered
by CPD which implicated Burney in drug trafficking activities with co-defendants Morris
and Pippins. Similarly, while the evidence of Burney's involvement in the drive-by
shooting is circumstantial in nature, such evidence, if believed, strongly suggests Burney's
complicity in the shooting. The evidence of Pippins' involvement in the shooting is even
more compelling. In short, clear and convincing evidence presented at the hearing
supports the trial court's conclusion.
{¶ 22} With regard to the history and characteristics of the accused, the evidence
shows that Burney is married with four children and that Pippins is expecting a child with
his girlfriend. Appellants are lifelong residents of Franklin County and Pippins continues
to maintain a residence in Columbus, Ohio. While Burney has been evicted from his
residence, his attorney represented to the court that Burney has made other living
arrangements and that he has a standing offer of employment as a custodian in a business
operated by a friend. Although the prosecutor was skeptical of these claims, the evidence
presented at the hearing shows that there is little or no risk that appellants will flee if
granted bail. However, given appellants' prior criminal records and the evidence
uncovered in the drug-trafficking investigation, there is a risk that appellants will
continue to engage in criminal activity if released. Indeed, the evidence shows that
Pippins was on pre-trial release from another pending charge when he allegedly
committed the offenses at issue in this case, and that Burney was on probation.
Nos. 14AP-354 and 14AP-356 8
{¶ 23} In short, clear and convincing evidence admitted at the hearing supports the
trial court's conclusion that appellants' history and characteristics do not favor release on
bail.
{¶ 24} The fourth and final factor in the analysis is "[t]he nature and seriousness
of the danger to any person or the community that would be posed by the person's
release." R.C. 2937.222(C)(4). In our opinion, this is the most significant factor weighing
against bail in this case. The trial court noted that appellants release would create a "very,
very significant" risk of harm to the community. The trial court noted that appellants had
collaborated in a drug-trafficking organization and that they had conspired to retaliate
against Jeron Brown by committing a drive-by shooting in broad daylight. The trial court
reasoned that such behavior "presents a significant danger to others." (Decision, 6.) We
agree.
{¶ 25} Ehrenborg testified that CPD requested the "no knock" warrants in this case
because they believed that Morris and appellants would be expecting retaliation for
Waddell's shooting. At the hearing, Ehrenborg testified as follows:
[Mr. Stanley] Q. You said their fear of retaliation. Who are you
talking about?
[Ehrenborg] A. Mr. Pippins, Mr. Burney, and Mr. Morris.
Q. Why do you believe they had a fear of retaliation?
A. After the robbery where -- or, actually, after the shooting,
Keith [Pippins] began talking to Mr. Burney, and he talked to
Mr. Morris. And Keith told Jack [Morris] to -- he might want
to take his wife and kids and have them go to her mom's. Her
mom lives out of town. And then Keith made another phone
call, was asking a guy to bring a strap; he needed another one.
And then he talked to -- Keith talked to Mr. Percy, Percy
Burney here, and he asked him if he had a strap, and he said
always; I always got one. But he was concerned about
retaliation.
(Tr. 56-57.)
{¶ 26} Appellants argue that the trial court should not have relied on the
information provided by Ehrenborg because his testimony consisted primarily of his own
opinion of what the evidence showed. We note, however, that in an R.C. 2937.222
Nos. 14AP-354 and 14AP-356 9
hearing, "[t]he rules concerning admissibility of evidence in criminal trials do not apply to
the presentation and consideration of information at the hearing." R.C. 2937.222(A);
State v. Michael, 5th Dist. No. 2009AP-11-0059, 2010-Ohio-2587, ¶ 39. Ehrenborg
estimated that CPD intercepted more than 50 conversations between and among
appellants and Morris. In his testimony, Ehrenborg attempted to summarize and
paraphrase what he and the other investigators heard in those conversations. While
Ehrenborg's testimony includes inferences he drew from the facts gathered in the
investigation as well as conclusions he reached after applying his particular knowledge
and experience as an investigator, we find that his testimony provided sufficient factual
content to permit the trial court to make its own findings and reach its own conclusions.
{¶ 27} Furthermore, while there is no direct evidence of a threat of retaliation
against appellants either by Waddell, Jeron or any of their associates, Ehrenborg's
testimony provides compelling evidence that appellants expect some sort of retaliation
from Waddell's group. Additionally, in his telephone conversation with Pippins prior to
the shooting of Waddell, Burney stated, "we're at war with them anyway * * * I always got
my strap on." (Tr. 72.)
{¶ 28} The trial court determined that the State presented clear and convincing
circumstantial evidence of a "very, very significant" potential that appellants' release will
create a danger to the community. (Decision, 6.) When considering alternatives to the
denial of bail, the trial court concluded that release conditions such as electronic
monitoring or house arrest were "insufficient to protect the community from the
extraordinary danger posed by these defendants." (Decision, 6.) Appellants argue that the
trial court erred by not specifying that clear and convincing evidence supported this
conclusion. However, we note that the trial court expressly stated that "this is one of the
very rare cases where a determination to deny bail is strongly supported by clear and
convincing evidence."(Decision, 6.) Thus, we perceive no error in the language used by
the trial court. Additionally, based upon our review of the record, we agree with the trial
court that, under the circumstances of this case, other release conditions would not have
reasonably assured the safety of appellants or the community.
Nos. 14AP-354 and 14AP-356 10
{¶ 29} In short, we find that the trial court made all of the required findings and
that it was not an abuse of discretion for the trial court to deny bail. Accordingly, each
appellant's assignment of error is overruled.
V. Conclusion
{¶ 30} For the foregoing reasons, we hold that the trial court did not abuse its
discretion when it determined that the State had proven, by clear and convincing evidence
that appellants committed the offenses with which they were charged; that appellants
pose a substantial risk of serious physical harm to the community; and that there are no
release conditions which will reasonably assure the safety of appellants and the
community. The judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
TYACK and BROWN, JJ., concur.
_________________