State v. Percy

2025 Ohio 723

• Court: Ohio Court of Appeals
• Decided: March 4, 2025
• Docket: 2024 CA 0006
• Status: Published

Opinion

[Cite as State v. Percy, 2025-Ohio-723.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Andrew J. King, J. -vs- : : BRANDON PERCY : Case No. 2024 CA 0006 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2022 CR 0702

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 4, 2025

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MEGAN HOBART WILLIAM T. CRAMER 38 South Park Street 1554 Polaris Parkway Mansfield, OH 44902 Suite 325 Columbus, OH 43240 King, J.

{¶ 1} Defendant-Appellant Brandon Percy appeals the August 17, 2023 judgment

of conviction and sentence of the Richland County Court of Common Pleas. Plaintiff-

Appellee is the State of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On October 6, 2022, the Richland County Grand Jury returned an

indictment charging Percy as follows:

{¶ 3} Count one: Discharge of a firearm on or near prohibited premises with

serious physical harm pursuant to R.C. 2923.162(A)(3), a felony of the first degree.

{¶ 4} Count two: Felonious assault with serious physical harm to B.H. pursuant

to R.C. 2903.11(A)(1), a felony of the second degree.

{¶ 5} Count three: Felonious assault, attempting or causing serious physical

harm by means of a deadly weapon to B.H. pursuant to R.C. 2903.11(A)(2), a felony of

the second degree.

{¶ 6} Count four: Felonious assault, attempting or causing physical harm to S.C.

by means of a deadly weapon pursuant to R.C. 2903.11(A)(2), a felony of the second

degree.

{¶ 7} Count five: Felonious assault, attempting or causing physical harm to A.D.

by means of a deadly weapon pursuant to R.C. 2903.11(A)(2), a felony of the second

{¶ 8} Count six: Improperly handling firearms in a motor vehicle pursuant to R.C.

2923.16(B), a felony of the fourth degree. {¶ 9} Count seven: Improperly handling firearms in a motor vehicle pursuant to

R.C. 2923.16(A), a felony of the fourth degree.

{¶ 10} Counts one, two, three, four, five, and seven included firearm specifications.

{¶ 11} Percy pled not guilty to the charges and elected to proceed to a jury trial

which took place July 13-26, 2023 wherein the following facts were elicited.

{¶ 12} This matter began following an argument between a group of older teens

on Facebook on April 14, 2022. The cyber debate escalated when Dakota Price told B.H.,

a victim in this matter, to meet for a physical fight. Price directed B.H. to meet her at a

park in Galion. Sabra Edwards drove herself, Percy, who was her best friend and

roommate at the time, Price, Price's sister, Aaron Obenour, and Nautica Johnson to

Galion. When B.H. failed to show, the group went back to Mansfield. Transcript of trial

(T.) 916-917.

{¶ 13} Edwards went back to her house and changed cars. She exchanged her

mother's car for her silver Chevy SUV and she and Percy went back to Price's home. T.

974.

{¶ 14} At some point the meeting spot to fight became the King's Mini Mart directly

across the street from Price's home. The group then hung out on the stairs in front of

Price's home. Present were Percy, Edwards, Johnson, Obenour, Price and members of

her family.

{¶ 15} Meanwhile, B.H., her friend S.C. and 9-year-old A.D. were traveling to a

Mansfield pet shop to purchase a hamster for A.D. Thereafter, they drove to King's Mini

Mart, but instead of stopping, repeatedly drove by yelling at the group on the steps and

taking photos. The third time they drove by, the group chased their car on foot. On the following pass, the group threw things at their car. None of these people had ever met in

person, but B.H. recognized two individuals from their Facebook profile pictures. T. 371-

377.

{¶ 16} Before B.H.'s last pass, Percy and Edwards left for a few minutes, returned

and pulled into the mini mart parking lot. Percy and Edwards had given Obenour and

Johnson a ride to the Price home. When Obenour and Johnson saw Percy and Edwards

return, they went across the street and got into the car for a ride home. Security video

from the mini mart shows Edwards driving, the passenger seat empty, someone in the

back seat opening the door from the inside, and Obenour and Johnson getting into the

back seat. T. 549-556, 1314-1315, State's exhibit 11.

{¶ 17} Obenour, Johnson, and Percy were all initially in the back seat of the Chevy.

When B.H. and S.C. drove by again, Edwards started chasing them. Percy said "I've got

something for them." Obenour got in the front passenger seat about the same time. T.

556-559, 564.

{¶ 18} Initially, Percy, Obenour, and Johnson were just hanging out of the windows

of the Chevy yelling at B.H. and S.C., but then Obenour and Johnson saw Percy pull a

purple and black gun with an extended clip out of his waistband. Shots were fired from

Edwards' Chevy which struck S.C.'s vehicle, B.H., and narrowly missed A.D. Edwards

turned away from S.C.'s path of travel when she heard shots fired. When S.C. realized

B.H. had been shot, she pulled over and called police. T. 377-378, 550, 768-776, 984-

988, 1468 {¶ 19} B.H. was transported to a hospital where she underwent surgery to remove

a bullet lodged in her colon. She lost half her colon, part of her small intestines, and

endured a dangerous infection. T. 379-384.

{¶ 20} While all of that was happening, Percy's girlfriend, Haillie Schaub, was trying

to contact Percy. Percy was usually prompt in responding to Schaub's texts, but had not

responded for hours. The two used the smartphone application Life360 which allows

users to track the location of others. Because Percy did not have cell phone data, his only

worked when he could access wifi. When Percy finally responded to Schaub she asked

why he went to Galion as she had seen his location there. Percy replied " we had to slide

on some mfs baby, today been wild asf." Schaub understood "slide" to meant a negative

meet up, "mfs" as mother fuckers and "asf" meaning as fuck. T. 714-719. Percy and

Edwards then called Schuab at approximately 8:30 p.m. using Edwards' phone. They told

Schuab they had to "slide" on some people because of an argument on Facebook

between Edwards and a bunch of her friends. Percy got involved because Edwards was

involved. Percy boasted about shooting 18-20 times out the window of the Chevy, said

Johnson and Obenour were with them, and Edwards was driving. He struck Schaub as

being excited about all of this. Edwards and Percy said they really did not want Obenour

and Johnson in the car because they were afraid Johnson would say something. T. 718-

727. Sometime before the events herein, Percy had purchased a gun – a purple and black

SCCY 9-millimeter which he named Daphne – and asked Schaub if she wanted to learn

to shoot. T. 708-709.

{¶ 21} Later that evening, Schaub sent Percy a news article about the shooting via

Facebook Messenger. Percy sent a laugh emoji back. He then told Schaub he hid the gun and he, Edwards' mother and Edwards hid Edwards' car in a neighbor's garage. T.

730-735, 743-744.

{¶ 22} An investigation onto the matter ensued. Initially B.H. could not tell officers

what had happened. While hospitalized she heard rumors about what happened which

she adopted as truthful, but different people told her different things. B.H. did recall she

never saw a gun that day and could only see three people in the car, Johnson, Obenour,

and Edwards. In one statement to police, she said Johnson and Obenour both shot her

and that she did not see Percy in the car. In a second statement she included Percy as

being in the car but was inconsistent as to whether or not he had a gun. T. 389-396, 447,

1328, 1335.

{¶ 23} S.C. also gave conflicting statements and testified on behalf of Percy at trial.

On body camera footage from the scene, S.C. stated she saw a white guy with a bun and

a black girl. This matches the description of Obenour and Johnson. She told police

Obenour was driving, and maintained this assertion on direct examination. After being

shown the security video from King's Mini Mart showing Obenour getting into the back

seat she conceded she was wrong. She originally told police there were six people in the

Chevy, that there was a black male with a red hoodie in the car, and she did not see the

shooter. S.C. testified at trial that she saw a black female wearing a gray tank top and her

hair in a bun hanging out the front passenger side window waiving a gun and yelling a lot,

then heard shots. T. 1467-1479, 1489-1493,1502, 1506, 1508.

{¶ 24} Johnson stated Percy shot out the windows of the Chevy with a black and

purple gun with a really long clip. She said she never touched the gun, but did not know whether or not Obenour did. She stated everyone else in the car was "freaking out." T.

566-571, 575, 578.

{¶ 25} Obenour stated Percy did the shooting with a "purpleish" gun with a "25

clip." After the shooting, Obenour stated Edwards and Percy told them to "keep this

between us." Obenour and Johnson later lied to police twice stating they jumped out of

the car before any shooting started and then said two dark-skinned people were doing

the shooting. T. 775-778, 795-797, 811, 832.

{¶ 26} McKenzie Cameron called police and advised Percy and Edwards had

come to her house after the shooting. She stated Percy was bragging about the shooting

and made it sound like it was fun, but Edwards was anxious and scared. She stated Percy

asked Cameron's paramour for cotton swabs and Cameron saw Percy take apart a purple

gun with an extended clip and use the swabs to clean it. T. 945-950.

{¶ 27} Edwards was also charged in this matter, but negotiated a plea in exchange

for her testimony at trial. She stated Percy was the only person in the car with a gun and

the gun was purple and black with an extended clip. She stated Percy was in the back

seat and shot out of the rear driver's side a couple times. This panicked everyone else in

the car and caused Johnson to start crying. Edwards stated she turned right so Percy

would not have a shot, but that did not stop him. He pushed Johnson's head down and

started shooting over her out of the rear passenger window. Edwards had seen Percy

with the gun before. She also had messages from Percy which included a photo of the

gun. Officers also discovered security video showing Percy and Edwards hiding the car.

She stated Percy hid the purple gun, then later traded it for a revolver. T. 984-989, 991,

996-997, 1012, 1022, State's exhibit 37. {¶ 28} The state requested and received a jury instruction for complicity as to all

counts. After hearing the evidence and deliberating, the jury declined to find Percy guilty

as the principal, but convicted him on all counts as complicit as well as each firearm

specification. Percy was subsequently sentenced to 30-35 years incarceration.

{¶ 29} Percy filed an appeal and the matter is now before this court for review. He

raises two assignments of error as follow:

I

{¶ 30} "APPELLANT'S STATE AND FEDERAL DUE PROCESS RIGHTS WERE

VIOLATED BY CONVICTIONS ON A COMPLICITY THEORY THAT WERE NOT

SUPPORTED BY SUFFICIENT EVIDENCE OF AFFIRMATIVE ACTS TAKEN BY

APPELLANT IN SUPPORT OF THE PRINCIPAL OFFENDER."

II

{¶ 31} "THE WEIGHT OF THE EVIDENCE DOES NOT SUPPORT APPELLANT'S

CONVICTIONS ON A COMPLICITY THEORY BECAUSE THERE WAS NO EVIDENCE

OF AFFIRMATIVE ACTS TAKEN BY APPELLANT IN SUPPORT OF THE PRINCIPAL

OFFENDER."

I, II

{¶ 32} Because they are interrelated, we address Percy's assignments of error

together. In these assignments of error, Percy does not challenge any one conviction or

element. Instead, he advances a general argument that his convictions are against the

manifest weight and sufficiency of the evidence. Specifically, Percy argues because the state's evidence only painted to him as the principal offender he could not be convicted

on a complicity theory as the state presented no evidence of complicit acts. We disagree.

Sufficiency and Manifest Weight

{¶ 33} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State v.

Jenks, 61 Ohio St.3d 259 (1991). "The relevant inquiry 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." Jenks at

paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). On

review for manifest weight, a reviewing court is to examine 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 jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See also,

State v. Thompkins, 78 Ohio St.3d 380 (1997). The granting of a new trial "should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction." Martin at 175.

{¶ 34} "Circumstantial evidence and direct evidence inherently possess the same

probative value," State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph one of the syllabus,

because "[t]he intent of an accused person dwells in his mind. Not being ascertainable by

the exercise of any or all of the senses, it can never be proved by the direct testimony of

a third person, and it need not be." In re Washington, 1998-Ohio-627, 340, quoting State

v. Huffman, 131 Ohio St. 27 (1936), paragraph four of the syllabus. Complicity

{¶ 35} R.C. 2923.03(A)(2) provides in pertinent part "no person, acting with the

kind of culpability required for the commission of an offense shall . . . aid or abet another

in committing the offense."

{¶ 36} Percy appears to argue that because the state presented evidence

implicating him only as the principal, he cannot be convicted as an aider and abettor.

However, "[a] complicity instruction is proper if 'the evidence adduced at trial could

reasonably be found to have proven the defendant guilty as an aider and abettor[.]' " State

v. Simpson, 2013-Ohio-4276, ¶ 33 (9th Dist.), quoting State v. Perryman, 49 Ohio St.2d

14 (1976), paragraph five of the syllabus. Additionally, Percy does not challenge that

instruction here on appeal.

{¶ 37} "[To] support a conviction for complicity by aiding and abetting pursuant to

R.C. 2923.03(A)(2), the evidence must show that the defendant supported, assisted,

encouraged, cooperated with, advised, or incited the principal in the commission of the

crime, and that the defendant shared the criminal intent of the principal." State v. Johnson,

93 Ohio St.3d 240 (2001), syllabus.

{¶ 38} While the state need not establish the principal's identity, it must, at the very

least, prove that a principal committed the offense. State v. Perryman, 49 Ohio St.2d 14

(1976), paragraph four of the syllabus vacated in part on other grounds sub nom,

Perryman v. Ohio, 98 S.Ct. 3136 (1978); State v. Hill, 70 Ohio St.3d 25, 28 (1994). The

state does not need to prove that the accomplice and principal had a specific plan to

commit a crime. State v. Johnson, 93 Ohio St.3d 240, 245 (2001). The fact that the

defendant shares the criminal intent of the principal may be inferred from the circumstances surrounding the crime, which may include the defendant's presence,

companionship, and conduct before and after the offense is committed. Id. at 245-246.

Analysis

{¶ 39} Contrary to Percy's argument, the state presented sufficient evidence to

convict him on a complicity theory.

{¶ 40} While Percy argues the jury rejected the testimony of the state's witnesses

and accepted the testimony of his witness, there is no evidence in the record to support

such a conclusion. The evidence presented at trial was conflicting, including the testimony

of Percy's witness. When assessing witness credibility, however, "[t]he choice between

credible witnesses and their conflicting testimony rests solely with the finder of fact and

an appellate court may not substitute its own judgment for that of the finder of fact." State

v. Awan, 22 Ohio St.3d 120 (1986). Additionally, "the factfinder is free to believe all, part,

or none of the testimony of each witness appearing before it." State v. Pizzulo, 2010-

Ohio-2048, ¶ 11 (11th Dist.). Furthermore, if the evidence is susceptible to more than one

interpretation, a reviewing court must interpret it in a manner consistent with the verdict.

Id. The finder of fact may take note of the inconsistencies and resolve or discount them

accordingly, but such inconsistencies do not render defendant's conviction against the

manifest weight of the evidence. State v. Nivens, 10th Dist. Franklin No. 95APA09-1236

(1996).

{¶ 41} There was no dispute between the parties that shots were fired from

Edwards' Chevy into S.C.'s vehicle and some of those bullets struck B.H. The only dispute

was who fired those shots. As set forth in our statement of facts, the State presented

evidence from which a reasonable jury could find Percy supported, assisted, encouraged, cooperated with, advised, or incited the principal in each crim charged. The State's

evidence demonstrated he was involved in the events of April 14, 2022 from beginning to

end. He rode with the others to Galion, was the only person who possessed a gun, stated

he "had something" for B.H. and S.C. as the chase began, was present in the Edwards'

vehicle during the shooting and did some shooting, hid the gun and later traded it for a

different gun. He assisted in hiding Edwards' car after the fact, bragged about the shooting

to his girlfriend and two other friends and seemed excited by the events. Percy's belated

messages to Schaub indicating they "had to slide on some people" further solidify Percy's

support, assistance, and encouragement in the car chase and shooting.

{¶ 42} Upon review of the record and transcript, we find Percy's convictions are

supported by sufficient evidence and are not against the manifest weight of the evidence.

Accordingly, Percy's first and second assignments of error are overruled.

{¶ 43} The judgment of the Richland County Court of Common Pleas is affirmed.

By King, J.,

Baldwin, P.J. and

Hoffman, J. concur.