[Cite as State v. Bradbury, 2016-Ohio-5091.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                               BUTLER COUNTY




STATE OF OHIO,                                       :

        Plaintiff-Appellee,                          :     CASE NO. CA2015-06-111

                                                     :          OPINION
    - vs -                                                       7/25/2016
                                                     :

DENNIS BRADBURY,                                     :

        Defendant-Appellant.                         :



               CRIMINAL APPEAL FROM BUTLER COUNTY AREA III COURT
                              Case No. CRB 1400313



Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Arenstein & Gallagher, Hal R. Arenstein, 114 East Eighth Street, Cincinnati, Ohio 45202, for
defendant-appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Dennis Bradbury, appeals his conviction in the Butler

County Area III Court for violating an ex parte protection order.

        {¶ 2} Todd and Jamie Minniear purchased property in Butler County on which a

Montessori School had been in existence for approximately 36 years. The school has

approximately 46 students (ages three to nine), and five teachers. Bradbury moved into the
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home owned by his mother, which is situated next to the school. Soon after he moved into

his mother's home, Bradbury began to have negative interactions with the Minniear family,

the school teachers, as well as the children and their parents.

       {¶ 3} Bradbury began taking pictures of school employees and children, coming onto

school property without permission, and cutting the grass on school property.             Todd

eventually went to Bradbury and asked him not to have any further contact with his family,

school employees, students and their parents. Todd also asked Bradbury to stay off school

property. Bradbury became upset, and insisted upon knowing why he was not permitted to

go onto school property. Todd explained that it was inappropriate to allow people onto

school property while school was in session and teachers were working with students.

       {¶ 4} Bradbury later called Todd and asked again why he was not permitted to go

onto school property, and Todd agreed to meet with Bradbury to explain. During their

meeting, Todd explained that it was not proper school protocol to allow people onto school

property while children were engaged with their teachers. Bradbury became angry and

responded, "if any of those fucking teachers said I was looking at their fucking tits, we've got

a big problem." Todd contacted police about the situation, but did not seek any formal

action, afraid to escalate the situation.

       {¶ 5} After that meeting, Bradbury came onto school property, called Todd to argue

about not being permitted on school property, and demanded that Todd move a gate that

separated school property from township property. During one phone call in particular,

Bradbury told Todd that if the teachers looked at his garage, truck, or dog he would go over

to the fence and stare at them. After that phone call, Todd agreed to meet with Bradbury's

father regarding the gate issue. Bradbury attended the meeting, and became "really angry

and started to scream" at Todd. When Todd tried to leave, Bradbury stepped in front of him,

and pulled his hand back as if to hit Todd. Bradbury told Todd that if he would agree to move
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the gate "all of this will stop."

       {¶ 6} During this time, Bradbury continued to take photographs of the school, its

teachers, students, and the students' parents. Todd contacted police, who suggested that

Todd seek a protection order. Todd also installed a privacy fence between the properties

and installed surveillance cameras.

       {¶ 7} After Todd petitioned the court for a protection order on behalf of himself and

his family, a magistrate granted an ex parte protection order. An officer of the West Chester

Police Department served Bradbury with the order, and a full hearing was set. Before the full

hearing occurred, and four days after being served with the protection order, Bradbury came

out of his house and glared at Jamie and another teacher who were supervising

approximately 26 children on the playground.

       {¶ 8} Jamie stayed outside with the children, as the school day was over and parents

were beginning to pick up the children. She observed Bradbury on the phone, and heard him

yelling at the police. After the children were gone, Jamie called Todd and the police. Todd

arrived at the school, and the police confirmed that Bradbury had called them to report that

Jamie had run at him and was glaring at him.

       {¶ 9} Todd showed video from the surveillance cameras of the incident to the

officers. In the video, Jamie is seen walking around the playground and watching the

children. However, at no time did she run toward Bradbury or the fence, and at no time did

she glare in his direction. Police arrested Bradbury for violating the terms of the protection

order, and charged him by complaint with the violation.

       {¶ 10} The issue proceeded to a two-day trial after which, the jury found Bradbury

guilty. The trial court sentenced Bradbury to 180 days in jail with 150 days suspended,

community control for two years, a fine, and court costs. Bradbury appeals his conviction,

raising four assignments of error. Because some of the assignments are interrelated, we will
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combine the first and second assignments of error together, and address the third and fourth

together as well. For ease of discussion, we will also address the assignments of error out of

order.

         {¶ 11} Assignment of Error No. 3:

         {¶ 12} THE FINDING OF GUILT WAS AGAINST THE SUFFICIENCY OF THE

EVIDENCE.

         {¶ 13} Assignment of Error No. 4:

         {¶ 14} THE FINDING OF GUILT WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

         {¶ 15} Bradbury argues in this third and fourth assignments of error that his conviction

was against the manifest weight of the evidence and was not supported by sufficient

evidence.

         {¶ 16} When reviewing the sufficiency of the evidence underlying a criminal

conviction, an appellate court examines the evidence in order to determine whether such

evidence, if believed, would convince the average mind of the defendant's guilt beyond a

reasonable doubt. State v. Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶

9. 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.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph

two of the syllabus.

         {¶ 17} A manifest weight of the evidence challenge, on the other hand, examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,

2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of

the evidence, the reviewing court must look at the entire record, weigh the evidence and all
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reasonable inferences, consider the credibility of the witnesses, and determine whether in

resolving the conflicts in the evidence, the trier of fact 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. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66.

       {¶ 18} "While appellate review includes the responsibility to consider the credibility of

witnesses and weight given to the evidence, these issues are primarily matters for the trier of

fact to decide." State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶

81. An appellate court, therefore, will overturn a conviction due to the manifest weight of the

evidence only in extraordinary circumstances when the evidence presented at trial weighs

heavily in favor of acquittal. Id.

       {¶ 19} Although the legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different, a "determination that a conviction

is supported by the manifest weight of the evidence will also be dispositive of the issue of

sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19.

       {¶ 20} Bradbury was convicted of violating R.C. 2919.27, which prohibits a person

from recklessly violating the terms of a protection order.

              A person acts recklessly when with heedless indifference to the
              consequences, the person disregards a substantial and
              unjustifiable risk that the person's conduct is likely to cause a
              certain result or is likely to be of a certain nature. A person is
              reckless with respect to circumstances when, with heedless
              indifference to the consequences, the person disregards a
              substantial and unjustifiable risk that such circumstances are
              likely to exist.

R.C. 2901.22(C).

       {¶ 21} The record indicates that Bradbury's conviction is supported by the manifest

weight of the evidence and is supported by sufficient evidence. The terms of the protection

order specifically prohibited Bradbury from taking photographs of the school, or contacting


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any of the teachers, parents or children at the school. The order also prohibited Bradbury

from "waiving [sic], motioning or glaring" at anyone on the school's property.

       {¶ 22} During the trial, the state presented testimony from the witnesses who observed

Bradbury glare at them on the day of his arrest. One of the school teachers who was present

on that day, testified that she, another teacher, and Jamie were outside on the playground

with the children. Bradbury exited his house, walked down the stairs, leaned forward and

began glaring at the school, teachers, and children. The teacher testified that to her, "a glare

is a look that is unfriendly, and is intimidating. It suggests just more than just a look, kind of

frightening. Kind of like a one up to say I'm bigger. And it lasts longer than appropriate."

She also testified that Bradbury stood and glared at them for about 15 to 20 seconds.

       {¶ 23} Jamie testified that on the day in question, Bradbury left his home, and glared

at her. She testified that "he was glaring, and it was clear by his face that he was very angry

and he was * * * staring right at us." Jamie also testified that she observed Bradbury and that

he was "just really pissed off. So that was the scary part." She also stated that she felt

Bradbury was "unpredictable," and that the incident lasted between 15-20 seconds. Jamie

testified that the experience was "traumatic" for her, and that it was "intense."

       {¶ 24} After viewing this testimony in a light most favorable to the prosecution, we find

that the state was able to prove the charge beyond a reasonable doubt. Moreover, we do not

find that the jury clearly lost its way or created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. As such, Bradbury's conviction was

supported by sufficient evidence and was not rendered against the manifest weight of the

evidence. Bradbury's third and fourth assignments of error are therefore, overruled.

       {¶ 25} Assignment of Error No. 1:

       {¶ 26} THE REPEATED REMARKS BY THE STATE'S PROSECUTOR IN HIS

CLOSING ARGUMENT VIOLATING THE "GOLDEN RULE" CONSTITUTED MISCONDUCT
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SUCH THAT IT PREJUDICIALLY AFFECTED SUBSTANTIAL RIGHTS OF THE

APPELLANT.

       {¶ 27} Assignment of Error No. 2:

       {¶ 28} IT IS IMPROPER FOR THE STATE'S PROSECUTOR TO ARGUE HIS

EVIDENCE IS UNCONTROVERTED BECAUSE THAT IMPLIES THE JUDGE SHOULD

PENALIZE APPELLANT FOR NOT TESTIFYING.

       {¶ 29} Bradbury argues in his first and second assignments of error that the

prosecutor engaged in prosecutorial misconduct during the state's closing arguments.

       {¶ 30} The record indicates that Bradbury did not object to the statements he claims

amount to prosecutorial misconduct. As such, we will apply a plain error analysis when

reviewing whether Bradbury was denied a fair trial. State v. McCollum, 12th Dist. Clermont

No. CA2014-11-077, 2015-Ohio-3286, ¶ 11. A plain error is any error or defect "affecting

substantial rights [that] may be noticed although they were not brought to the attention of the

court." Crim.R. 52(B). Notice of plain error is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice. State v.

Long, 53 Ohio St.2d 91 (1978). Accordingly, an error does not rise to the level of a plain

error unless, but for the error, the outcome of the trial would have been different. McCollum

at ¶ 11.

       {¶ 31} For a conviction to be reversed on the basis of prosecutorial misconduct, a

defendant must prove the prosecutor's comments were improper and that they prejudicially

affected the defendant's substantial rights. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-

6207, ¶ 62. However, the "focus of an inquiry into allegations of prosecutorial misconduct is

upon the fairness of the trial, not upon culpability of the prosecutor." State v. Gray, 12th Dist.

Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 57. As such, prosecutorial misconduct is not

grounds for error unless the defendant has been denied a fair trial. State v. McKelton, 12th
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Dist. Butler No. CA2015-02-028, 2015-Ohio-4228, ¶ 13. In order to determine whether a

prosecutor's remarks were prejudicial, the prosecutor's closing argument is reviewed in its

entirety. State v. Layne, Clermont App. No. CA2009-07-043, 2010-Ohio-2308, ¶ 58. On

review, a "court will not deem a trial unfair if, in the context of the entire trial, it appears clear

beyond a reasonable doubt that the jury would have found the defendant guilty even without

the improper comments." State v. Sharp, 12th Dist. Butler No. CA2009-09-236, 2010-Ohio-

3470, ¶ 97.

       {¶ 32} A "Golden Rule" argument exists where the prosecutor appeals to jury

members to abandon a position of impartiality by imagining themselves in the position of one

of the parties. State v. Tucker, 12th Dist. Butler No. CA2010-10-263, 2012-Ohio-139, ¶ 44.

As it relates to a criminal context, a "Golden Rule" argument could also involve "a request by

the prosecutor that the jury accord a defendant the same treatment that the defendant

accorded his victim." Id. Such arguments, while generally prohibited, are "not per se

prejudicial so as to warrant a new trial." Id. Instead, the test is whether such an argument

"prejudicially affected substantial rights of the defendant." Id.

       {¶ 33} After reviewing the record, we do not find that any of the prosecutor's

statements prejudicially affected Bradbury's substantial rights. During closing arguments, the

prosecutor made the following statements, which Bradbury argues are violations of the

golden rule.

               (1) Now, remember yesterday when I said all I'm going to ask
               you to do is follow the law. Well a protection order was obtained.
               There's no doubt he was served with it. There's no doubt he
               knew about it. And what was Mr. Minniear supposed to do?
               What did he do? What would you have done in his position?

               (2) And you saw the size of Jamie and [the teacher who
               testified]. Now, look at the size of [Bradbury]. Would you feel
               intimidated? Would you feel threatened in their situation?



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              (3) If you're a parent, and you have a child at the community
              Montessori school and you find out about Mr. Bradbury's
              behavior, do you want your child there?

              (4) Did [the teacher who testified] have any reason to lie here?
              When she says he's taking my photo, what else did she tell you?
              He's glaring at us while we're trying to take care of the kids. Did
              she say I was looking at her for the whole 15 seconds? No. All
              that is is an attempt to mislead you. Put yourself in her situation.
              Put yourself in [the teacher's] and Jamie's situation. They've got
              25 children running around, 25 to 30 children running around the
              playground. Right over there is Mr. Bradbury with this mean,
              aggressive, intimidating look on his face. What are they going to
              do?

       {¶ 34} Bradbury argues that these statements were prejudicial because they cast him

as an "aggressive, threatening bully," and that the statements "fanned the flames of fear in

much the same way our politicians are attempting to frighten us with the Syrian refugees."

After reviewing the prosecutor's closing argument in its totality, we do not find the four

statements prejudicially affected Bradbury's substantial rights or denied him a fair trial.

       {¶ 35} While it would have been preferable for the prosecution not to ask the jurors to

place themselves in the position of witnesses, such statements are not per se prejudicial.

Instead, the statements must have denied Bradbury a fair trial. We find that they did not.

The record indicates that even absent these statements, the jury heard testimony from the

teacher and from Jamie, both of whom directly observed Bradbury glaring at them. The

witnesses specifically testified to the manner in which Bradbury glared at them, and why the

incident was more than mere staring or Bradbury simply looking in their direction. Both

indicated that the glare made them feel uneasy and uncomfortable, and that the glare lasted

approximately 15-20 seconds. Thus, and even absent the prosecutor's statements, it

appears clear beyond a reasonable doubt that the jury would have found the defendant guilty

even without the improper comments.

       {¶ 36} Moreover, the statements, while inappropriate for asking the jury to put


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themselves in the position of others (including Todd, the teacher, and Jamie), nonetheless

also addressed specific evidence admitted at trial, and focused upon reasonable inferences

the jury could draw from the evidence. Despite Bradbury's argument to the contrary, the

prosecutor's statements did not attempt to cast Bradbury in any manner that was not already

raised at trial, nor were the statements an emotional ploy made in an attempt to frighten the

jurors against Bradbury. The prosecutor's statements in context were merely comments

about the evidence and Bradbury's behavior toward the Minniear family, as well as the school

and its teachers, students, and parents. Although perhaps inartful, the comments attempted

to address why the Minniears sought a protection order, and why the witnesses were

reasonable in their perception of, and reaction to, Bradbury's conduct.

       {¶ 37} Moreover, the last statement regarding whether the teacher had reason to lie

about the incident, was specific to Bradbury's counsel suggesting during his closing argument

that the teacher was not credible. As such, the prosecutor's statement was given in

response to a direct assertion raised in the defendant's closing argument, and did not

prejudice Bradbury in any way.

       {¶ 38} After reviewing the totality of closing argument, we find that the prosecutor's

statements did not deprive Bradbury of a fair trial. This is especially true where the evidence

clearly indicated the existence of a protection order and Bradbury's violation of that order.

       {¶ 39} Bradbury also argues that the prosecutor committed misconduct by

commenting on his failure to testify by stating "the evidence we presented, ladies and

gentlemen, is uncontradicted," and "what did the evidence for the last day-and-a-half day [sic]

show you, uncontroverted evidence."

       {¶ 40} A prosecutor's reference in closing arguments to uncontradicted evidence "is

not a comment on the accused's failure to testify where the comment is directed to the

strength of the state's evidence and not to the silence of the accused, and the jury is
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instructed not to consider the accused's failure to testify for any purpose." State v. Ferguson,

5 Ohio St.3d 160, 163 (1983). A prosecutor "is not prevented from commenting upon the

failure, on the part of the defense, to offer any other evidence in support of its case." State v.

Rager, 12th Dist. Butler No. CA2003-05-132, 2004-Ohio-2485, ¶ 16.

       {¶ 41} After reviewing the closing argument in full, we find that the prosecutor's

comment was directed to the strength of the state's evidence, rather than the silence of the

accused. Given that no witness testified that Bradbury had not glared at Jamie and the

teacher, the prosecutor's comment was accurate.            Further, the trial court specifically

instructed the jury that "the fact that [Bradbury] did not testify must not be considered for any

purpose."

       {¶ 42} After a full review of the record and the closing arguments of the parties, we

find that the prosecutor's statements did not deprive Bradbury of a fair trial. Nor did the

prosecutor's reference to the strength of its case amount to an improper statement on

Bradbury's decision not to testify in his own defense. In the absence of plain error, or

otherwise, Bradbury's first and second assignments of error are overruled.

       {¶ 43} Judgment affirmed.


       M. POWELL, P.J., and S. POWELL, J., concur.




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