[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
