State v. Burns
| Decision Date | 06 August 2020 |
| Docket Number | No. 108468,108468 |
| Citation | 2020 Ohio 3966 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. EDDIE BURNS, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and John F. Hirschauer, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Timothy B. Hackett and Abigail Christopher, Assistant State Public Defenders, for appellant.
{¶ 1} Defendant-appellant Eddie Burns brings the instant appeal challenging his convictions for robbery, aggravated burglary, aggravated robbery, receiving stolen property, and attempted murder. Appellant argues that the juvenile court erred by denying his motion to sever the unrelated counts charged in the complaint for purposes of the probable cause hearing, the state violated his constitutional rights when it indicted him in the General Division of the Cuyahoga County Court of Common Pleas (hereinafter "general division" or "adult court") on counts for which the juvenile court found that the state failed to establish probable cause, the juvenile court erred by denying his motion to suppress, and the juvenile court's probable cause determinations regarding the charges in the complaint were not supported by sufficient credible evidence. After a thorough review of the record and law, this court affirms.
{¶ 2} The instant appeal pertains to appellant's involvement in six different robberies between August 2017 and February 2018. Aside from one robbery that occurred in Solon, Ohio, the other five incidents took place in the Glenville area near the intersection of East 99th Street and St. Clair Avenue. During the six robberies, appellant victimized four elderly victims and four commercial employees.
{¶ 3} On March 7, 2018, in Cuyahoga J.C. No. DL-18-102995, appellant was charged in a 58-count complaint in juvenile court. The complaint charged the following offenses: (1) robbery, (2) theft, (3) escape (dismissed by the state on August 28, 2018), (4) assault, (5) attempted murder, (6) aggravated robbery, (7) aggravated burglary, (8) robbery, (9) kidnapping, (10) felonious assault, (11) possessing criminal tools, (12) aggravated robbery with one- and three-year firearm specifications, (13) aggravated robbery with one- and three-year firearm specifications, (14) kidnapping with one- and three-year firearm specifications, (15) kidnapping with one- and three-year firearm specifications, (16) robbery with one- and three-year firearm specifications, (17) robbery with one- and three-year firearm specifications, (18) having weapons while under disability, (19) theft with one- and three-year firearm specifications, (20) theft with one- and three-year firearm specifications, (21) aggravated robbery and complicity as to the one- and three-year firearm specifications, (22) kidnapping with one- and three-year firearm specifications, (23) robbery with one- and three-year firearm specifications, (24) having weapons while under disability, (25) theft with one- and three-year firearm specifications, (26) theft, (27) identity fraud, (28) telecommunications fraud, (29) misuse of credit cards, (30) aggravated robbery with one- and three-year firearm specifications, (31) kidnapping with one- and three-year firearm specifications, (32) robbery with one- and three-year firearm specifications, (33) grand theft with one- and three-year firearm specifications, (34) theft with one-and three-year firearm specifications, (35) theft, (36) receiving stolen property with one- and three-year firearm specifications, (37) misuse of credit cards, (38) telecommunications fraud, (39) identity fraud, (40) attempted misuse of credit cards, (41) telecommunications fraud, (42) identity fraud, (43) theft, (44) attempted misuse of credit cards, (45) telecommunications fraud, (46) identity fraud, (47) aggravated robbery, (48) aggravated robbery, (49) kidnapping, (50) kidnapping, (51) felonious assault, (52) felonious assault, (53) felonious assault, (54) felonious assault, (55) aggravated burglary, (56) having weapons while under disability, (57) receiving stolen property, and (58) receiving stolen property.
{¶ 4} Counts 1 through 46 alleged that appellant committed the offenses when he was 15 years old. Counts 47 through 58 alleged that appellant committed the offenses when he was 16 years old.
{¶ 5} The specific facts of the six incidents will be set forth in further detail below. Generally, Counts 1-4 pertained to an August 10, 2017 incident during which appellant attacked 77-year-old J.P. at AJ's Deli & Drive Thru, located at 10301 St. Clair Avenue, Cleveland, Ohio 44108. J.P. was withdrawing money from an ATM machine when appellant punched him in the face, grabbed $20 from him, and ran away.
{¶ 6} Counts 5-11 pertained to a November 13, 2017 incident during which appellant and another individual attacked 87-year-old J.G. inside his home on East 99th Street. Appellant and his accomplice beat J.G., rummaged through his pockets, removed other items from the house, and fled. J.G.'s home is next door to the residence where appellant was residing at the time. J.G. identified appellant in a photo array as one of the two assailants. (Tr. 115-119.)
{¶ 7} Counts 12-20 pertained to a December 28, 2017 incident during which Cleveland 19 Action News employees L.M. and E.W. were robbed at gunpoint in their company truck. L.M. and E.W. were covering a story on East 99th Street. They were approached by three young males wearing ski masks, two brandishing firearms. The males ordered L.M. and E.W. to turn over their cell phones, wallets, credit cards, and other belongings. Investigators learned that an individual attempted to sell L.M.'s stolen cell phone at Tones Wireless Shop, located at the intersection of East 79th Street and Superior Avenue. Detective Kevin Warnock identified appellant in surveillance video from Tones Wireless Shop.
{¶ 8} Counts 21-29 pertained to a January 8, 2018 incident during which M.R., a Spectrum Cable employee, was assaulted and robbed during a service call on East 93rd Street. M.R. was robbed by two males, one brandishing a handgun. The males ordered him to turn over his phones, tablet, wallet, credit cards, and any other belongings of value. Appellant was identified by an employee at One Stop Shop, located at 10109 St. Clair Avenue, Cleveland, Ohio 44108 using M.R.'s card at an ATM machine.
{¶ 9} Counts 30-36 and 44-46 pertained to a January 21, 2018 incident during which V.F., an Amazon delivery driver, was robbed at gunpoint while making a delivery in Solon, Ohio. V.F. was approached in the driveway by a single assailant wearing a ski mask. There were three vehicles involved in this robbery. The assailant pointed a gun at V.F., and V.F. fled to a nearby residence. The assailant stole V.F.'s sprinter van that contained his wallet, keys, and several packages. Appellant was subsequently identified in surveillance footage from Walmart where he and three other individuals purchased a television with V.F.'s stolen credit card.
{¶ 10} Counts 37-43 do not constitute one of the six robberies for which appellant was charged. Counts 37 and 38 involve offenses committed in Lake County on January 21, 2018. Count 39 pertains to an offense committed against V.F. in Lake County. Counts 40 and 41 pertain to alleged offenses committed in Lake County on January 21, 2018. Count 42 pertains to an offense committed against V.F. in Lake County on January 21, 2018. Count 43 pertains to an offense committed against victim A.K. in Lake County.
{¶ 11} Counts 47-58 pertained to a February 7, 2018 incident during which 76-year-old D.W. and 81-year-old W.W. were attacked and robbed at their home on East 99th Street. Appellant attacked D.W. as she was unloading groceries in her driveway and demanded money from her. When W.W. came out of the house to protect his wife, appellant began attacking him. Appellant ran off with D.W.'s wallet. Appellant returned, initially to ask W.W. for their bank code, and a second time to ask D.W. for her PIN number. Shortly after the assault and robbery, appellant was detained by Officer Daniel McCandless in the basement of a home on East 99th Street. Appellant was in possession of D.W.'s credit cards. D.W., who encountered appellant in the driveway before the assault and robbery, identified appellant as the individual that attacked her and her husband.
{¶ 12} The state filed a motion to transfer jurisdiction of the case from the juvenile court to the general division for criminal prosecution pursuant to R.C. 2152.10(B), governing discretionary bindover. The state also filed a motion for mandatory bindover. The juvenile court set a probable cause hearing on the state's motion to transfer for August 28, 2018.
{¶ 13} On May 24, 2018, defense counsel filed a motion to sever the counts in the complaint pursuant to Crim.R. 8, 12(C)(5), and 14, and R.C. 2941.04. Defense counsel's motion additionally requested that Counts 37-43 be dismissed under R.C. 2938.10 for lack of jurisdiction. Regarding severance, defense counsel argued that (1) joinder of the offenses charged in the complaint was improper because the offenses did not meet the requirements under Crim.R. 8, (2) appellant would be unfairly prejudiced by joinder, and (3) the state cannot refute appellant's claim of prejudicial joinder under the joinder or other acts tests. Regarding the Crim.R. 8 requirements for joinder, defense counsel contended that the offenses charged in the complaint were not committed in the same neighborhood, the items stolen during the robberies were different, and the robberies were not carried out the same way.
{¶ 14} Defense counsel filed a motion to suppress on August 20, 2018. Therein, defense c...
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