State v. Bradley , 2012 Ohio 4787 ( 2012 )

[Cite as State v. Bradley, 2012-Ohio-4787.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
-vs- :
: Case No. 2012CA00011
:
BRANDEN LEMAR BRADLEY :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2011CR1397
JUDGMENT: AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED
DATE OF JUDGMENT ENTRY October 9, 2012
APPEARANCES:
For Appellant: For Appellee:
GEORGE URBAN JOHN D. FERRERO, JR.
116 Cleveland Ave. NW, Ste. 808 STARK COUNTY PROSECUTOR
Canton, OH 44702 KATHLEEN O. TATARSKY
110 Central Plaza S., Ste. 510
Canton, OH 44702-1413
[Cite as State v. Bradley, 2012-Ohio-4787.]
Delaney, J.
{¶1} Appellant Branden Lemar Bradley appeals from the judgment entries of
the Stark County Court of Common Pleas convicting him of one count each of
domestic violence and burglary and sentencing him to an aggregate prison term of
twenty-four months. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant and Tina Gadison have known each other for seven years;
they have been in a relationship in the past and have a five-year-old daughter
together. Gadison also has a twelve-year-old son from another relationship. As of
August 10, 2011, appellant and Gadison were not romantically involved but appellant
was living at the house on St. Elmo Avenue N.E., Canton, with Gadison and her two
children.
{¶3} On that date, appellant and Gadison argued about paying bills.
Appellant kicked a hole in the wall near the stairway and Gadison told him to get out.
Appellant became angrier and continued to kick at the hole in the wall. Gadison
picked up her cell phone and pretended she was talking to police.
{¶4} Appellant and Gadison came down the stairs, arguing, into the dining
room. Appellant said, “OK, b (sic), you want to call the police on me?” and picked up
three candles on a decorative plate. Gadison ducked as appellant threw the candles
at her. Appellant then grabbed the plate, ran toward Gadison, and hit her with it until it
shattered. Appellant also kicked her in the head.
{¶5} At this point, both children were in the dining room and witnessed the
incident. Gadison’s son told appellant to leave his mom alone, and appellant pushed
Stark County, Case No. 2012CA00011 3
him to the ground. Gadison, with blood running down her face, ran to appellant and
kicked him.
{¶6} Appellant took a bag of sugar from the kitchen, went to Gadison’s car,
and opened the gas tank to pour the sugar in. Instead, he put the sugar down and
threw a brick through the back window of the car, shattering it.
{¶7} Gadison called 911. Appellant was gone upon arrival of police, who
photographed the damage to the house and car and Gadison’s visible physical
injuries. They urged Gadison to seek medical attention but she refused, although she
did go to the hospital later that day. Gadison ended up with three stitches in her face
and “three or four” in her head.
{¶8} Upon her return from the hospital that evening, Gadison and her children
slept downstairs in the living room. She was awakened by appellant’s constant phone
calls, which she didn’t answer. Eventually in the early morning hours of August 11,
appellant appeared at the front door and beat on it. Gadison called 911 again and
appellant threw another brick at her car.
{¶9} Police responded to the home again and spoke with Gadison, but
appellant was gone. They left, only to receive yet another 911 call that appellant was
back. Eventually police did see an individual matching appellant’s description in the
neighborhood, but were unable to apprehend him.
{¶10} Investigators noted Gadison’s injuries were consistent with her
statements and with physical evidence at the scene, including a hole in the plaster of
the stairway, a splintered glass plate in the dining room with blood on it, candlesticks
Stark County, Case No. 2012CA00011 4
on the floor, an overturned vase, and the broken window of her car. The photos of
Gadison’s injuries and the physical evidence were later introduced by appellee at trial.
{¶11} Appellant was charged by indictment with one count of felonious assault,
one count of domestic violence, one count of burglary, one count of child endangering,
and one count of criminal damaging. Appellant entered pleas of not guilty and the
case proceeded to trial by jury. Appellant stipulated to one prior conviction of
domestic violence which enhanced the present charge to a felony of the fourth degree.
Appellant moved for judgments of acquittal pursuant to Crim.R. 29 at the close of
appellee’s evidence and at the close of all of the evidence; the motions were
overruled.
{¶12} Appellant was found guilty of domestic violence, burglary, and criminal
damaging; he was found not guilty of felonious assault and child endangering. The
trial court declared a mistrial on the criminal damaging count due to replacement of a
juror with an alternate; that ruling is not at issue in this appeal.
{¶13} The trial court sentenced appellant to consecutive terms of 12 months
each on the count of domestic violence and the count of burglary, totaling an
aggregate prison term of 24 months.
{¶14} Appellant now appeals from the judgment entries of his convictions and
sentence.
{¶15} Appellant raises three Assignments of Error:
{¶16} “I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
Stark County, Case No. 2012CA00011 5
{¶17} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT
ALLOWING A WITNESS ON BEHALF OF APPELLANT TO TESTIFY.”
{¶18} “III. THE TRIAL COURT ERRED BY ORDERING APPELLANT TO
SERVE CONSECUTIVE SENTNECES (sic).”
I.
{¶19} In his first assignment of error, appellant argues his convictions for
domestic violence and burglary are not supported by sufficient evidence and are
against the manifest weight of the evidence. We disagree.
{¶20} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78
Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The
standard of review for a challenge to the sufficiency of the evidence is set forth in
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the
syllabus, in which the Ohio Supreme Court held, “An appellate court’s function when
reviewing the sufficiency of the evidence to support a criminal conviction is to examine
the evidence admitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant’s guilty beyond a reasonable doubt. 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.”
{¶21} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing
the entire record, weighs the evidence and all reasonable inferences, considers the
Stark County, Case No. 2012CA00011 6
credibility of witnesses and determines 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 overturned and a new trial ordered.” State v. Thompkins, supra, at
387. Reversing a conviction as being against the manifest weight of the evidence and
ordering a new trial should be reserved for only the “exceptional case in which the
evidence weighs heavily against the conviction.” Id.
{¶22} Appellant was convicted of one count of domestic violence, a felony of
the fourth degree, pursuant to R.C. 2919.25(A), which states, “No person shall
knowingly cause or attempt to cause physical harm to a family or household member.”
Appellant was also convicted of one count of burglary, a felony of the fourth degree,
pursuant to R.C. 2911.12(A)(4), which states, “No person, by force, stealth, or
deception, shall * * * trespass in a permanent or temporary habitation of any person
when any person other than an accomplice of the offender is present or likely to be
present.”
{¶23} Appellant first argues his conviction for burglary is against the manifest
weight and sufficiency of the evidence because he did not “trespass” at Gadison’s
residence; he lived there. The evidence showed appellant stayed at the residence
periodically but did not have a key (T. 144). Moreover, appellant may have had
Gadison’s permission to be at the residence, but the permission was revoked and he
became a trespasser upon committing an offense of violence against her. “Where a
defendant commits an offense against a person in the person's private dwelling, the
defendant forfeits any privilege, becomes a trespasser and can be culpable for
Stark County, Case No. 2012CA00011 7
[aggravated] burglary.” State v. Cutts, 5th Dist. No. 2008CA000079, 2009-Ohio-3563,
¶ 181, citing State v. Steffen, 31 Ohio St.3d 111, 115, 509 N.E.2d 383 (1987).
{¶24} Because we find appellant committed an offense of violence against
Gadison, infra, and affirm his conviction for domestic violence, we find appellant’s
burglary conviction is not against the manifest weight or sufficiency of the evidence.
{¶25} With regard to his conviction for domestic violence, appellant points to
minor discrepancies in the testimony and argues Gadison was not a credible witness.
It is primarily up to the jury to determine the witnesses’ credibility and to resolve
inconsistencies in the evidence. See, State v. DeHass, 10 Ohio St.3d 230, 227
N.E.2d 212 (1967). Upon reviewing the record, we find the jury did not lose its way in
convicting appellant of domestic violence because Gadison’s account was consistent
with the physical evidence at the scene and with her visible injuries.
{¶26} Having found appellant’s convictions for burglary and domestic violence
are supported by sufficient evidence and are not against the weight of the evidence,
we overrule appellant’s first assignment of error.
II.
{¶27} In his second assignment of error, appellant argues the trial court
abused its discretion in disallowing the testimony of his grandmother, Sylvia Hooten,
to refute Gadison’s testimony that she never said she was going to “f*** that little
mother***er” in terms of sending appellant to prison. We disagree.
{¶28} Upon direct examination, appellee asked Gadison whether she had
spoken to appellant’s family since the incident, and she agreed she had. She denied
telling appellant’s grandmother “I’m going to f*** that little mother***er,” but she
Stark County, Case No. 2012CA00011 8
acknowledged she may have said he would not get away with it. Upon cross
examination, Gadison stated she told Hooten appellant would “get what he deserves.”
{¶29} When told appellant intended to call Hooten as a witness, the trial court
inquired for what purpose. Trial counsel proffered he intended to show Gadison
fabricated the allegations and challenge her testimony that she never made any
vindictive statements. The trial court noted, however, that counsel would not be
permitted to inquire about specifics of the conversation between Hooten and Gadison
because Gadison denied making the disputed statement.
{¶30} Appellant now asserts he should have been permitted to call Hooten as a
witness and inquire about Gadison’s statements to challenge her credibility. The
admission or exclusion of evidence is a matter left to the sound discretion of the trial
court. State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987). Absent an
abuse of discretion resulting in material prejudice to the defendant, a reviewing court
should be reluctant to interfere with a trial court’s decision in this regard. State v.
Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). Our task is to look at the
totality of the circumstances and determine whether the trial court acted unreasonably,
arbitrarily, or unconscionably in allowing or excluding the disputed evidence. State v.
Rogers, 5th Dist. No. 07 CA 106, 2008-Ohio-6630, ¶ 17, citing State v. Oman, 5th
Dist. No. 1999CA00027, 2000 WL 222190 (Feb.14, 2000).
{¶31} The trial court found the proffered testimony violated Evid.R. 608 as
extrinsic evidence of a specific instance of a witness’ conduct: while appellant could
call Hooten and inquire generally whether she had spoken with Gadison, counsel
could not get into the specifics of what was said. Appellant had inquired of Gadison
Stark County, Case No. 2012CA00011 9
on cross-examination about the disputed statement, but was then “stuck” with her
answer, according to the trial court.
{¶32} Evid.R. 608(B) states:
Specific instances of the conduct of a witness, for the purpose of attacking or
supporting the witness's character for truthfulness, other than conviction of
crime as provided in Evid. R. 609, may not be proved by extrinsic evidence.
They may, however, in the discretion of the court, if clearly probative of
truthfulness or untruthfulness, be inquired into on cross-examination of the
witness (1) concerning the witness's character for truthfulness or
untruthfulness, or (2) concerning the character for truthfulness or untruthfulness
of another witness as to which character the witness being cross-examined has
testified.
{¶33} Upon review we find the trial court’s decision to disallow Hooten’s
testimony was not an abuse of discretion. Not only would the proffered evidence
violate Evid.R. 608(B), it would have limited probative value as to whether Gadison
was truthful about the events of August 10 and 11, 2011. The trial court’s decision to
disallow the testimony was not unreasonable, arbitrary, or unconscionable.
{¶34} Appellant’s second assignment of error is overruled.
III.
{¶35} In his third assignment of error, appellant claims the trial court erred in
imposing consecutive sentences without engaging in judicial fact-finding required by
H.B. 86. We agree.
Stark County, Case No. 2012CA00011 10
{¶36} In State v. Kalish, the Ohio Supreme Court set forth a two step process for
examining felony sentences. 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124.
The first step is to “examine the sentencing court's compliance with all applicable rules
and statutes in imposing the sentence to determine whether the sentence is clearly and
convincingly contrary to law.” Id. at ¶ 4. If this first step “is satisfied,” the second step
requires the trial court's decision be “reviewed under an abuse-of-discretion standard.”
Id.
{¶37} First, we note H.B. 86, which enacted the consecutive sentencing
provisions addressed by appellant, became effective on September 30, 2011. Appellant
was sentenced on December 15, 2011, and is therefore subject to the new sentencing
provisions.
{¶38} H.B. 86 amended subsection (E)(4) of R.C. 2929.14 [now subsection
(C)(4)] and subsection (A) of R.C. 2929.41, which now state respectively:
(C)(4) If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison terms
consecutively if the court finds that the consecutive service is necessary to
protect the public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger the offender poses to the public, and if the
court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
Stark County, Case No. 2012CA00011 11
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was
under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more
courses of conduct, and the harm caused by two or more of the multiple offenses
so committed was so great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct adequately reflects
the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.
(A) Except as provided in division (B) of this section, division (E) of section
2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a prison
term, jail term, or sentence of imprisonment shall be served concurrently with any
other prison term, jail term, or sentence of imprisonment imposed by a court of
this state, another state, or the United States. Except as provided in division
(B)(3) of this section, a jail term or sentence of imprisonment for misdemeanor
shall be served concurrently with a prison term or sentence of imprisonment for
felony served in a state or federal correctional institution.
{¶39} In the wake of the enactment of H.B. 86, Ohio appellate courts have noted
R.C. 2929.14(C)(4) now requires trial courts to make factual findings when imposing
consecutive sentences. State v. Frasca, 11th Dist. No. 2011-T-0108, 2012-Ohio-3746,
¶ 56, citing State v. Stalnaker, 11th Dist. No. 2011-L-151, 2012-Ohio-3028 and State v.
Hites, 3rd Dist. No. 6-11-07, 2012-Ohio-1892.
Stark County, Case No. 2012CA00011 12
{¶40} Our colleagues on the Eleventh District Court of Appeals have noted,
though, the new provisions do not require a sentencing court to give reasons for
imposing consecutive sentences akin to those once required by the holding of the Ohio
Supreme Court in State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473.
State v. Frasca, supra, 2012-Ohio-3746 at ¶ 57. Noting Comer’s holding rested upon
the former R.C. 2929.14(E)(4) and 2929.19(B)(2)(c), which were both found
unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,
the Eleventh District concluded “a sentencing court is not statutorily required to make a
finding that gives its reasons for selecting the sentence imposed.” Id.{¶41} Frasca ultimately held that while the trial court in that case did not give
reasons for imposing consecutive terms, it made sufficient factual findings as required
by R.C. 2929.14(C) where it noted the length of the defendant’s criminal history and the
number of offenses of violence, found this criminal history required consecutive terms,
and also found the victim was injured severely. Id., citing State v. Jones, 1st Dist. No.
C-110603, 2012-Ohio-2075 and State v. Johnson, 8th Dist. No. 97579, 2012-Ohio-
2508.
{¶42} Neither party in the instant case addressed the Comer question, nor does
appellant specify where the trial court fell short in making factual findings at sentencing.
It falls to us, therefore, to review the record of this sentencing and determine whether
the trial court made the factual findings required by R.C. 2929.14(C)(4).
{¶43} At the sentencing hearing, the trial court stated the following with regard to
consecutive sentences:
Stark County, Case No. 2012CA00011 13
* * * *.
Mr. Bradley, the Court is obviously familiar with the facts of this case, the fact that
it involved two separate instances over two separate days. The jury did acquit
with regard to the most serious of the offense (sic), the felonious assault,
however did find you guilty of the felony four burglary and also a felony four
domestic violence.
As has been indicated, based on your record which is as indicated to give—to
not give consecutive sentences would demean the seriousness of the offenses
and not adequately protect the public from further criminal behavior. Because of
the nature of the offenses the Court finds that consecutive sentences are in fact
warranted, and, and pursuant to the statute for consecutive sentences the
conditions have been met. Accordingly, I’m sentencing you to 12 months with
regard to each of the felony fours to be served consecutively one after the other
for a total incarceration of 24 months giving you credit for all time served to date.
* * * *.
{¶44} The sentencing journal entry of the trial court states the following with
regard to consecutive terms: “The concurrent sentence will demean the seriousness of
the defendant’s conduct and will not adequately protect the public for future crime by the
defendant or others.”
{¶45} Although the trial court stated “the statutory conditions for consecutive
sentences have been met,” we find this is not judicial fact-finding pursuant to R.C.
2929.14(C)(4)(a) through (c) under the H.B. No. 86 amendments. See, State v.
Williams, 5th Dist. No. 11-CA-115, 2012-Ohio-3211. We find the imposition of
Stark County, Case No. 2012CA00011 14
consecutive terms, absent the required fact-finding, is clearly and convincingly contrary
to law.
{¶46} Accordingly, appellant’s third assignment of error is sustained and this
matter is remanded to the trial court for resentencing under H.B. No. 86.
By: Delaney, P.J.
Farmer, J. concur.
Hoffman, J. concurs and dissents
separately
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER
PAD:kgb
Stark County, Case No. 2012CA00011 15
Hoffman, J., concurring in part and dissenting in part
{¶47} I concur in the majority’s analysis and disposition of Appellant’s first and
second assignments of error.
{¶48} I respectfully dissent from the majority’s analysis and disposition of
Appellant’s third assignment of error. Unlike the majority, I find the trial court did make
the findings required for imposition of consecutive sentences satisfying R.C.
2929.14(C). Accordingly, I would affirm the trial court’s judgment in toto.
_________________________
HON. WILLIAM B. HOFFMAN
[Cite as State v. Bradley, 2012-Ohio-4787.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
BRANDEN L. BRADLEY :
:
: Case No. 2012CA00011
Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Stark County Court of Common Pleas is affirmed in part, reversed in part, and
remanded. Costs assessed equally between appellant and appellee.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER