[Cite as State v. Bradley, 2019-Ohio-4272.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  JUDGES:
                                                Hon. William B. Hoffman, P.J
         Plaintiff-Appellee                     Hon. John W. Wise, J.
                                                Hon. Craig R. Baldwin, J.
 -vs-
                                                Case No. 2018CA00172
 TYWON BRADLEY

        Defendant-Appellant                     O P I N IO N




 CHARACTER OF PROCEEDINGS:                      Appeal from the Stark County Court of
                                                Common Pleas, Case No. 2018CR1306


 JUDGMENT:                                      Affirmed

 DATE OF JUDGMENT ENTRY:                        October 15, 2019


 APPEARANCES:


 For Plaintiff-Appellee                         For Defendant-Appellant

 JOHN D. FERRERO                                AARON KOVALCHIK
 Stark County Prosecutor                        116 Cleveland Avenue, N.W.
                                                808 Courtyard Centre
 RONALD MARK CALDWELL                           Canton, Ohio 44702
 Assistant Prosecuting Attorney
 Appellate Section
 110 Central Plaza, South, Suite #510
 Canton, Ohio 44702-1413
Stark County, Case No. 2018CA00172                                                              2

Hoffman, P.J.
          {¶1}     Defendant-appellant Tywon Bradley appeals his convictions and sentence

entered by the Stark County Court of Common Pleas, on four counts of felonious assault

with attendant firearm and repeat violent offender specifications; one count of improper

discharge of a firearm at or into a habitation; one count of discharge of a firearm on or

near a prohibited premises; one count of having weapons while under disability; and one

count of domestic violence, following a jury trial. Plaintiff-appellee is the state of Ohio.

                                   STATEMENT OF THE CASE AND FACTS

          {¶2}     On July 25, 2018, the Stark County Grand Jury indicted Appellant with four

counts of felonious assault, in violation of R.C. 2903.11(A)(2), with firearm and repeat

violent offender specifications, felonies of the second degree; one count of improperly

discharging a firearm at or into a habitation or in a school safety zone, in violation of R.C.

2923.161(A)(1), a felony of the second degree; one count of discharge of a firearm on or

near prohibited premises, in violation of R.C. 2923.162(A)(3)(C)(2), a felony of the third

degree; one count of having weapons while under a disability, in violation of R.C.

2923.13(A)(2), a felony of the third degree; one count of assault, in violation of R.C.

2903.13(A), a misdemeanor of the first degree1; and one count of domestic violence, in

violation of R.C. 2919.25(A), a misdemeanor of the first degree. Appellant appeared

before the trial court for arraignment on July 27, 2018, and entered a plea of not guilty to

the Indictment.

          {¶3}     On the day of trial, prior to voir dire, the trial court addressed Appellant to

ensure he had received the state’s offer of a recommended sentence of eleven years in



1   The state dismissed the assault charge prior to trial.
Stark County, Case No. 2018CA00172                                                         3


exchange for his guilty plea. The trial court added, “And the reason that I want to make

sure that you understand the offer is because there are a lot of charges against you, and

there are some serious charges that are involved which could lead to a rather large prison

term. I want to make sure that you had the time to view the offer in light of what I would

call the worst case scenario. * * * the worst case scenario would be that you’d be convicted

of all of these charges, including all the specifications that go with it, and that the Court

made the findings to give you the maximum penalty on each one. * * * I’m not telling you

that that’s what will happen if you go to trial. I just want to make sure you know the worst

possible outcome that could be.” Trial Tr., Vol. I at 14-15. Appellant advised the trial

court he did not want the state’s offer.

       {¶4}   Sherry Marshall testified she and Appellant dated for four years, and during

that time, they lived together at 1110 7th Street, Canton, Stark County, Ohio. Marshall

stated she and Appellant broke up in March, 2018. She recalled, on June 24, 2018, she

and Appellant decided to get together. Marshall picked up Appellant between 5:30 and

6:00 p.m. They purchased beer and proceeded to the home of Spring Strader. A group

of people were gathered at Strader’s home for a party.

       {¶5}   Later that evening, Marshall, Appellant, and Marshall’s son, Ernie Marshall,

left the party together. Marshall stated Appellant had been drinking and “was pretty lit”.

Tr. at 171. Marshall dropped off her son, and she and Appellant returned to her residence

to eat. Marshall had to rouse Appellant who was “passed out in the car”. Tr. at 173.

Once inside, Marshall began to list food options to Appellant. Appellant looked inside the

refrigerator and the freezer, slamming the doors when he did not find anything to satisfy

his appetite. Appellant slammed the refrigerator door so hard the items on top fell off.
Stark County, Case No. 2018CA00172                                                      4


Marshall screamed at Appellant not to break her new refrigerator. Appellant, yelling at

Marshall for spitting on him, lunged toward her, grabbed her by the throat, and shoved

her against the wall.

       {¶6}   Marshall was eventually able to break free from Appellant’s grasp. She

grabbed her keys and purse, and ran out the door. Marshall returned to Strader’s

residence. She explained she did not call the police because she “still loved him and

didn’t want him to go to jail.” Tr. at 175. Marshall did call her son, Ernie, and told him

what had occurred. Ernie instructed Marshall to come pick him up. During this time,

Appellant repeatedly texted Marshall, calling her names and demanding she take him to

his cousin’s house.     Marshall ignored him.    When Marshall and Ernie returned to

Marshall’s residence, Appellant was standing outside on the steps. Marshall and Ernie

exited the vehicle. A physical altercation ensued between Ernie and Appellant. After

Ernie “got the better of him”, Appellant took off. Marshall locked up her home, and she

and Ernie returned to Strader’s residence.

       {¶7}   While Marshall, Strader, and Brittany were on the porch, a white SUV drove

into the area and parked. Ernie, who had been inside, came out onto the porch. A man

exited the back passenger side of the vehicle. As the individual approached, the group

realized it was Appellant. Ernie jumped off the porch, prepared to fight. Strader started

screaming, “He has a gun. Run, he has a gun.” Tr. at 183. Strader, Ernie, and Brittany

turned and ran toward the house. Marshall remained outside, frozen in her disbelief

Appellant would do anything. As Strader ran into the house, she fell. Marshall believed

her friend had been shot and ran. Marshall heard four or five gunshots. The adults
Stark County, Case No. 2018CA00172                                                                 5


herded the children into the basement and called 9-1-1. When the police arrived, the

officers instructed everyone to stay inside.

           {¶8}    Ernest “Ernie” Marshall and Spring Strader corroborated Marshall’s

testimony.

           {¶9}    Canton Police Officer Kyle Slone testified he was working the afternoon

shift2 on June 24, 2018, when he and his partner received “shots fired” alerts on their cell

phones. The officers responded to the residence at 914 9th Street, Canton. Officer Slone

spoke with Marshall and Ernie and learned Appellant was the alleged perpetrator. Officer

Andrew Moore arrived at the scene and advised Officer Slone he was handling the call.

Thereafter, Officer Slone searched the roadway for gun casings. He found five casings.

           {¶10} Officer Andrew Moore testified he was working the midnight shift3 on June

24, 2018. Shortly after roll call, he and Officer Sens were dispatched to the 900 block of

9th Street, Northwest, Canton, in response to shots fired. Officer Moore spoke with

Marshall who recalled the events of the evening prior, including the shooting. Officer

Moore indicated officers were unable to locate Appellant that evening.

           {¶11} Detective Michael Walker of the Canton Police Department became

involved in the case on July 12, 2018. Det. Walker interviewed Marshall and Strader on

July 13, 2018. He subsequently interviewed Ernie Marshall on July 24, 2018. Det. Walker

and Det. Jeff Weller went to the scene to recover any additional evidence. The detectives

found three bullet markings on the porch of the residence.




2   Officer Slone testified the afternoon shift is either 2 p.m. to 10 p.m. or 3 p.m. to 11 p.m.
3   Officer Moore testified the midnight shift is either 10 p.m. to 6 a.m. or 11 p.m. to 7 a.m.
Stark County, Case No. 2018CA00172                                                         6


       {¶12} Larry Mackey, II, with the Stark County Crime Lab received five spent

cartridge casings recovered at the scene. He analyzed the casings and determined all of

the casings were fired from the same gun.

       {¶13} Appellant testified on his own behalf. Appellant candidly admitted he had

been convicted of a number of felonies and served time in prison as a result. Appellant

stated he had dated and lived with Marshall, but they broke up in March, 2018. He

recalled he spent the night with Marshall on June 23, 2018. They spend part of the day

of June 24, 2018, together, but he went to his cousin’s house around 2 p.m.

       {¶14} Appellant returned to Marshall’s residence later that day. Marshall became

angry with Appellant because his phone “kept going off.” The two exchanged words and

Marshall “stormed out.” Appellant called for a ride. While he was waiting outside, Ernie

arrived “with one of his peoples.” Appellant and Ernie began to fight, but quickly went

their separate ways. Thereafter, Appellant walked to his cousin’s residence. It was

between 6:45 p.m. and 7:00 p.m. when he arrived. Appellant played a game and watched

a movie. He took a bath between 9:45 p.m. and 10:00 p.m. then went to bed as he had

to work the next morning. Appellant denied being at Strader’s house on June 24, 2018.

Appellant indicated he did not fire a gun that day.

       {¶15} On cross-examination, Appellant stated he did not call or text Marshall after

he left her. Appellant also claimed Marshall was “a great actress.” Tr. Vol. II at 359.

Appellant added Ernie and Strader lied during their testimony.

       {¶16} After hearing all the evidence and deliberating, the jury found Appellant

guilty of four counts of felonious assault and the attendant firearm specifications, one

count of improperly discharging a firearm at or into a habitation or in a school safety zone,
Stark County, Case No. 2018CA00172                                                         7


one count of discharge of a firearm on or near prohibited premises, one count of having

weapons while under a disability, and one count of domestic violence. The trial court

found Appellant guilty of the four repeat violent offender specifications which

accompanied the felonious assault charges. The trial court conducted a sentencing

hearing on October 25, 2018, and imposed an aggregate prison term of 32 years.

       {¶17} It is from his convictions and sentence Appellant appeals, raising the

following assignments of error:



              I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST

       WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

              II.   APPELLANT’S          PRISON        SENTENCE         WAS       AN

       UNCONSTITUTIONAL TRIAL PENALTY.




                                             I.

       {¶18} In his first assignment of error, Appellant challenges his convictions as

against the manifest weight and based upon insufficient evidence.

       {¶19} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in 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. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
Stark County, Case No. 2018CA00172                                                         8


       {¶20} An appellate court's function when reviewing the sufficiency of the evidence

is to determine 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, 574 N.E.2d 492,

paragraph two of the syllabus (1991).

       {¶21} In his Brief to this Court, Appellant “states that he did not commit these

crimes.” Brief of Appellant at 10. In support of his position, Appellant refers to his

testimony at trial during which he denied he ever visited Strader’s residence on June 24,

2018, and never had a gun or fired a gun. Appellant also contends Marshall, Ernie, and

Strader were not credible witnesses. Appellant explains Marshall wanted to get even with

him because he did not wish to “reengage in a romantic relationship” with her. He adds

Ernie and Strader were not credible due to their close relationships with Marshall.

Appellant further submits the forensic evidence did not link the shell casings found at the

scene to him.

       {¶22} The jury was free to accept or reject any or all of the evidence offered by

the parties and assess the witnesses' credibility. Indeed, the jurors need not believe all of

a witness' testimony, but may accept only portions of it as true. State v. McGregor, 5th

Dist. Ashland No. 15-COA-023, 2016-Ohio-3082, 2016 WL 294299. The jury clearly did

not believe Appellant’s testimony.

       {¶23} Upon review of the entire record, including reading the entire transcript, we

find Appellant's convictions were not against the manifest weight of the evidence and

were based upon sufficient evidence. Marshall, Ernie, and Strader all testified Appellant

returned to Strader’s residence with a gun, and all three heard four or five shots fired as
Stark County, Case No. 2018CA00172                                                            9


they fled into the home.     Officer Slone located five empty shell casings from the area

where Appellant was seen approaching Strader’s residence.

       {¶24} Appellant's first assignment of error is overruled.

                                                  II.

       {¶25} In his second assignment of error, Appellant argues his prison term was an

unconstitutional trial penalty. We disagree.

       {¶26} It is well-established “a sentence vindictively imposed on a defendant for

exercising his constitutional right to a jury trial is contrary to law.” State v. Rahab, 150

Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 8, citing State v. O'Dell, 45 Ohio St.3d

140, 147, 543 N.E.2d 1220 (1989). When reviewing a sentence for vindictiveness, we

begin by presuming the trial court considered the proper sentencing criteria. Id. at ¶ 19.

We then review the record for evidence of actual vindictiveness. Id. “We will reverse the

sentence only if we clearly and convincingly find the sentence is contrary to law because

it was imposed as a result of actual vindictiveness on the part of the trial court.” Id., citing

R.C. 2953.08(G)(2) and State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231, at ¶ 1. It is incumbent upon the defendant to prove actual vindictiveness.

Id. at ¶ 18, citing United States v. Wasman, 468 U.S. 559, 569, 104 S.Ct. 3217, 82 L.Ed.2d

424 (1984).

       {¶27} As stated, supra, we have reviewed the entire record - the trial court's

statements, the evidence adduced at trial, and the information presented during the

sentencing hearing – and find no evidence of actual vindictiveness on the part of the trial

court. In sentencing Appellant, the trial court properly considered the principles and
Stark County, Case No. 2018CA00172                                                     10


purposes of sentencing in R.C. 2929.11 as well as the recidivism and seriousness factors

in R.C. 2929.12.

      {¶28} Accordingly, we find that Appellant's sentence is not contrary to law, and his

second assignment of error is not well-taken and is overruled.

      {¶29} The judgment of the Stark County Court of Common Pleas is affirmed.




By: Hoffman, P.J.
Wise, J. and
Baldwin, J. concur
