The State Of Oklahoma v Fred A. Green, Ronald Krushe, Christopher Thornburg

S-2013-694

Filed: Jun. 19, 2014

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Fred A. Green appealed his conviction for kidnapping and first-degree burglary. Conviction and sentence were dismissed by the district court. Lewis, P.J., concurred, and Smith, V.P.J., concurred, and Lumpkin, J., concurred, while A. Johnson, J., also concurred.

Decision

The District Court's ruling granting the Motion to Dismiss is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2014), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an abuse of discretion by the trial court in dismissing the charges against the bail bondsmen?
• Did the profession of bail bondsman provide a legal defense to the charges of First Degree Burglary and Kidnapping?
• Were Green, Krushe, and Thornburg acting within their legal authority when they arrested Mr. and Mrs. Jones?
• Did the district court correctly determine that no probable cause existed for the charges based on the defendants' legal rights?

Findings

• the court did not err in ruling that the actions of the bail bondsman and his employees fell within their legal rights
• the court did not abuse its discretion in dismissing the charges against the defendants

S-2013-694

Jun. 19, 2014

The State Of Oklahoma

Appellant

v

Fred A. Green, Ronald Krushe, Christopher Thornburg

Appellee

SUMMARY OPINION

Appellees, Fred Green, Ronald Krushe and Christopher Thornburg, were charged in Pawnee County District Court, Case Nos. CF-2012-114, CF-2012-115 and CF-2012-117, respectively, with Kidnapping (Count I) and First Degree Burglary (Count II). On September 20, 2012, Preliminary Hearing was held and Green’s and Krushe’s demurrers to Counts I and II were denied. Thornburg’s demurrer to Count I was denied but his demurrer to Count II was sustained. The Appellees were bound over for trial. On March 21, 2013, Green, Krushe and Thornburg filed a motion to dismiss together with a brief in support. The State filed a response to this motion on April 4, 2013. A hearing was held on the motion to dismiss on July 12, 2013. At the conclusion of this hearing the Honorable Jefferson D. Sellers sustained the motion and dismissed the case. The State appeals this decision.

The State raises the following proposition of error:

1. Profession of bail bondsman is not a legal defense to criminal activity. The trial court abused its discretion in holding that a bail bondsman cannot be held criminally liable for the offense of First Degree Burglary and Kidnapping because he has a legal right to arrest a person under his bond.

In appeals prosecuted pursuant to 22 O.S.2011, § 1053, this Court reviews the trial court’s decision to determine if the trial court abused its discretion. State v. Love, 1998 OK CR 32, ¶ 2, 960 P.2d 368, 369. An abuse of discretion has been defined as a conclusion or judgment that is clearly against the logic and effect of the facts presented. State v. Hooley, 2012 OK CR 3, ¶ 4, 269 P.3d 949, 950.

At preliminary hearing, the State only has the burden to show probable cause that an offense has been committed and probable cause to show that the defendant committed the offense. Heath v. State, 2011 OK CR 5, ¶ 7, 246 P.3d 723, 725. In order to challenge the sufficiency of the evidence presented at preliminary hearing in a motion to quash, the defendant must establish beyond the face of the indictment or information that there is insufficient evidence to prove any one of the necessary elements of the offense for which the defendant is charged. State v. Delso, 2013 OK CR 5, ¶ 5, 298 P.3d 1192.

On May 18, 2012, at 12:30 a.m., bail bondsman, Fred Green, and two of his employees, Ronald Krushe and Christopher Thornburg, went to the home of Patrick Wills in Pawnee County to revoke the bond of Billy and Pam Jones, who were staying in the home, and take them into custody. Green knocked on the front door of Wills’ house and the door was answered by Wills’ wife. Green ‘nudged’ her out of his way and he and Krushe entered the residence. Wills stepped in front of Green and asked him what was going on. Green responded that he was there to revoke Mr. and Mrs. Jones’ bond and he showed Wills the paperwork. Green and Krushe went to the room where Mr. and Mrs. Jones were sleeping, handcuffed them and removed them from the house. Green, Krushe and Thornburg placed Mr. and Mrs. Jones in a pickup and started driving toward Osage County jail. Sometime during or shortly after the incident, Wills’ wife called 911 and reported what was happening. This disturbance was reported by dispatch to Pawnee County Deputy Sheriff, Darrin Varnell. While Deputy Varnell was on the phone with dispatch, he was approached by Wills, who had driven to Cleveland after Green, Krushe and Thornburg left with Mr. and Mrs. Jones. Wills told Varnell that he was the homeowner who had called for assistance. Varnell was advised by dispatch that Green, Krushe and Thornburg had been stopped north of Hominy. Green, Krushe and Thornburg were taken into custody and transported to the Osage County Jail.

Green, Krushe and Thornburg were charged with first degree burglary for breaking and entering Wills’ home with the intent to kidnap Mr. and Mrs. Jones. They were charged with kidnapping for forcibly seizing Mr. and Mrs. Jones without lawful authority and with the intent to confine them against their will. The State and Appellees agree that bondsmen have the statutory authority to arrest defendants with whom they have executed a bond and that they may do so at any place within the state prior to the breach of an undertaking. The parties also stipulated that Green had a valid, certified bond at the time that he, Krushe and Thornburg arrested Mr. and Mrs. Jones. Thus, the district court found that the defendants neither committed the crime of first degree burglary nor kidnapping as they had an absolute right to arrest the couple and remove them from the Wills’ home and take them to the Osage County jail. The State argues that this ruling was in error. It asserts that because Mr. Jones testified that Green told him that he would never make it to Osage County Jail, this supported a conclusion that at the time Green and his employees went into the Wills’ home, they committed the crime of burglary by entering with the intent to commit the felony of kidnapping Mr. and Mrs. Jones and that when they removed Mr. and Mrs. Jones from the residence, Green and his employees kidnapped the couple. Thus, the State contends the case involves a question of law that should have been presented to a jury. The testimony that Green made this statement does not diminish the evidence that he and his employees were legally entitled to arrest Mr. and Mrs. Jones and transport them to the Osage County jail. Neither does the fact that they were intercepted by the police while en route call into question the legality of their actions. The evidence presented at the preliminary hearing and at the hearing on the motion to dismiss supported the conclusion that Green, Krushe and Thornburg were acting within their legal authority when they arrested and transported Mr. and Mrs. Jones and accordingly, the district court did not abuse its discretion in dismissing the charges against them.

DECISION

The District Court’s ruling granting the Motion to Dismiss is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2014), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 22 § 1053
2. State v. Love, 1998 OK CR 32, I 2, 960 P.2d 368, 369.
3. State v. Hooley, 2012 OK CR 3, I 4, 269 P.3d 949, 950.
4. Heath v. State, 2011 OK CR 5, "I 7, 246 P.3d 723, 725.
5. State v. Delso, 2013 OK CR 5, 5, 298 P.3d 1192.
6. Okla. Stat. tit. 22 § 1107
7. Okla. Stat. tit. 59 § 1327(A)

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 1053 (2011) - Appeal procedure for criminal offenses
• Okla. Stat. tit. 22 § 1107 (2011) - Rights of bail
• Okla. Stat. tit. 59 § 1327(A) (2011) - Surrender of defendant by bail

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• State v. Love, 1998 OK CR 32, I 2, 960 P.2d 368, 369
• State v. Hooley, 2012 OK CR 3, I 4, 269 P.3d 949, 950
• Heath v. State, 2011 OK CR 5, I 7, 246 P.3d 723, 725
• State v. Delso, 2013 OK CR 5, 5, 298 P.3d 1192