State v. Bradford ( 2017 )

[Cite as State v. Bradford, 2017-Ohio-8481.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105217
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
BRADLEY L. BRADFORD
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; REVERSED IN PART
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-600941-A
BEFORE: Jones, J., Laster Mays, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: November 9, 2017
ATTORNEY FOR APPELLANT
Britta M. Barthol
P.O. Box 670218
Northfield, Ohio 44067
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Ryan J. Bokoch
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant, Bradley Bradford (“Bradford”), appeals his convictions
for participating in a criminal gang, felonious assault, improperly handling a firearm in a
motor vehicle, improperly discharging a firearm into a habitation, discharging a firearm
on or near prohibited premises, and having weapons while under disability. We affirm
in part, reverse in part, and remand for a limited resentencing.
Procedural History and Facts
{¶2} This case arose out of a conflict between two Cleveland gangs, the Fleet
Avenue and Broadway Avenue gangs, that came to a head in the spring and summer of
2015. In April 2015, two members of the Fleet gang were shot at a local bar. On May
4, 2015, a shooting against Broadway members injured Antowine Palmer and killed Pedro
“Dro” Barnes (“Dro Barnes”). The May 4 shooting occurred outside of 5010 Finn
Avenue. After those shootings, multiple retaliatory shootings occurred in May, June,
and July 2015, including the June 20, 2015 shooting death of Fleet gang member Arthur
“Archie” Davis.1
{¶3} This appeal involves a drive-by shooting on Scovill Avenue on June 13 and a
drive-by shooting at 5010 Finn Avenue on July 5; both incidents took place in the city of
Cleveland. Bradford was not convicted of any charges with relation to the June 13
1
The gang war also included two shootings, June 6 and June 8, 2015, in which Bradley
Bradford was the named victim. See State v. Houston, 8th Dist. Cuyahoga No. 104752,
2017-Ohio-4179.
incident; therefore, the discussion that follows will focus mainly on the July 5 shooting.
{¶4} Bradford was charged in a 50-count indictment along with his brothers,
Maurice Bradford and Lawrence Black (“Black”); their mother, Edwina Neal (“Neal”);
and alleged fellow gang member Andre Ingram. Neal and Ingram entered into plea
agreements with the state and the three brothers elected to proceed to trial before the
bench.
{¶5} At the end of the state’s case, the state dismissed Counts 31-34 and 36 as they
related to Bradford. The court found Bradford guilty of participating in a criminal gang;
felonious assault, with a criminal gang activity, one- and three-year firearm, and forfeiture
specifications; improperly handling a firearm in a motor vehicle with one- and three-year
firearm and forfeiture specifications; improperly discharging a firearm into a habitation
with criminal gang activity, one- and three-year firearm, and forfeiture specifications;
discharging a firearm on or near prohibited premises with one- and three-year firearm
specifications; and having weapons while under disability. The court sentenced
Bradford to a total of 14 years in prison.
{¶6} Bradford filed a notice of appeal. Black and Maurice Bradford were also
convicted of various crimes and have appealed their convictions; this court recently
affirmed Black’s convictions but reversed and remanded his case for a limited
resentencing. See State v. Black, 8th Dist. Cuyahoga No. 105197, 2017-Ohio-8063; see
also State v. Bradford, 8th Dist. Cuyahoga No. 105199.
{¶7} Further facts will be discussed under the assignments of error.
Assignments of Error
I. Appellant has been deprived of his liberty without due process of law
by his convictions for participating in a criminal gang, improperly handling
firearms in a motor vehicle, improperly discharging into a habitation, a
criminal gang specification and firearm specifications which were not
supported by sufficient evidence to prove his guilt beyond a reasonable
doubt.
II. Appellant’s convictions were against the manifest weight of the
evidence.
III. The trial court erred in ordering consecutive sentences for the firearm
specifications in Counts 40 and 41.
Law and Analysis
Sufficiency and Manifest Weight of the Evidence
{¶8} In his first and second assignments of error, Bradford contends that the trial
court erred in denying his Crim.R. 29 motion for acquittal and that his convictions for
participating in a criminal gang, improperly handling firearms in a motor vehicle,
improperly discharging into a habitation, a criminal gang specification and firearm
specifications lacked sufficient evidence and were against the manifest weight of the
evidence. Although they involve different standards of review, because they involve
interrelated issues, many of the same arguments and a review of the same evidence, we
address Bradford’s first and second assignments of error together.
{¶9} A Crim.R. 29(A) motion for acquittal tests the sufficiency of the evidence.
State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 13. Accordingly, we
review a trial court’s denial of a defendant’s motion for acquittal using the same standard
we apply when reviewing a sufficiency-of-the-evidence challenge. Id.
{¶10} A challenge to the sufficiency of the evidence supporting a conviction
requires a determination of whether the state met its burden of production. State v.
Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41. When reviewing
sufficiency of the evidence, an appellate court must 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. Leonard, 104 Ohio St. 3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting
State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
In a sufficiency inquiry, an appellate court does not assess whether the state’s evidence is
to be believed but whether, if believed, the evidence admitted at trial supported the
conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25; Jenks
at paragraph two of the syllabus.
{¶11} Bradford argues that there was insufficient evidence to support his
convictions for improperly handling firearms in a motor vehicle, in violation of R.C.
2923.16(B), and improperly discharging into a habitation, in violation of R.C.
2923.16(A)(1), because the state did not identify Bradford as the assailant during the July
5, 2015 drive-by shooting on Finn Avenue.
{¶12} Bradford also contends that there was insufficient evidence to support his
conviction for participating in a criminal gang, in violation of R.C. 2923.42(A), which
provides, in part:
No person who actively participates in a criminal gang, with knowledge that
the criminal gang engages in or has engaged in a pattern of criminal gang
activity, shall purposely promote, further, or assist any criminal conduct, * *
* or shall purposely commit or engage in any act that constitutes criminal
conduct * * * .
Id.
{¶13} The crux of Bradford’s argument is that the state failed to present direct
evidence demonstrating that he had participated in the crimes. This contention,
however, ignores the general rule in Ohio that “[c]ircumstantial evidence and direct
evidence inherently possess the same probative value.” Jenks at paragraph one of the
syllabus. “The lack of direct evidence is not dispositive.” State v. Ladson, 8th Dist.
Cuyahoga No. 104642, 2017-Ohio-7715, ¶ 13. While there may not have been
overwhelming direct evidence of Bradford’s participation, there was a significant amount
of circumstantial evidence linking him to the crimes with which he was charged.
{¶14} Ashley Palmer (“Palmer”), Antwoine Palmer’s sister, testified that she grew
up with the Bradfords and used to date Bradley Bradford. She was standing outside
5010 Finn Avenue on July 5, 2015, when a black truck pulled up. Palmer recognized the
black truck because she had seen the truck parked outside of the house belonging to the
Bradfords’ mother, Neal.2 The occupants started shooting at her and the other people in
front of the house. Palmer recognized Lawrence Black, who, according to Palmer, was
2
At various times throughout trial, the same house is referred to both as the Bradfords’ house
and the Bradfords’ mother’s house. It appears as though one or more of the Bradford brothers lived
with their mother in a house that had a bar, run by Neal, in the lower half of the house and an
apartment in the upper half of the house.
“hanging” out of the passenger car window shooting with a “longer gun.” Other men in
the SUV were shooting out of the back of the vehicle. Palmer “thought” the driver
“looked” like Bradford.
{¶15} Fred Booker (“Booker”), a former Fleet gang member, testified that he knew
Bradford and his brothers. He knew Bradford was a drug dealer who sold heroin; in
fact, according to Booker, Bradford used to sell heroin to the Broadway gang before the
“beef” started between the two gangs. Booker explained that a “beef” was:
Booker: A feud like. Like they trying to hurt us, we trying to hurt them.
State: And so during this time period, if you saw
somebody from Broadway —
Booker: I was shooting at them.
State: And what would they be doing?
Booker: Shooting at us.
(Tr. 591.)
{¶16} Booker testified that after Dro Barnes was murdered, Maurice Bradford was
shot in a drive-by shooting by suspected Broadway gang members. Black was present
during that shooting and used his “AK” to shoot back at the shooter. Four Fleet
members, including Bradford and Black, had chipped in money to buy the “AK,” but
Booker had only seen Black shoot the gun.
{¶17} Shortly after Maurice was shot, the Bradfords’ house was shot at, allegedly
by Broadway gang members. Booker testified that he and Bradley talked about
retaliating against Broadway for the various shootings. Booker named the various Fleet
members he was associated with: Maurice, Black, Bradley, K.O., Tru, Chip, Mondo,
Gerald, Bally (Andre Ingram), and Archie (deceased).
{¶18} According to Booker, on July 5, 2015, Black and Bradford picked him up
in Neal’s SUV shortly after the Finn Avenue shooting. Bradford was driving and Black
was sitting in the front passenger seat. Black and Bradford told Booker they shot up a
house in the Broadway neighborhood to retaliate for Archie’s murder. According to
Booker, both Bradley and Black had handguns “[o]n the[ir] persons” and the shooting
took place “[p]robably like a little bit before” the brothers picked him up. He testified
that the group headed back to the Broadway area, looking for more Broadway members to
shoot at. When the group did not see anyone, they decided to take a picture in front of a
street sign and post it online to taunt the Broadway gang.
{¶19} About an hour after the shooting, Bradford uploaded a photo to his
Instagram account that showed Black, Booker, and two other men under a Broadway-area
street sign. Bradford was not in the picture. Booker explained that Bradford was not
in the picture because he was driving the SUV and had to remain in the vehicle in case the
group was spotted and needed to make a quick getaway.
{¶20} Approximately six hours after the shooting, Cleveland Police pulled over
Neal’s SUV in response to a call for a radio assignment that “people were loading a
firearm or firearms into a black SUV to possibly be doing a retaliation shooting.” At
this point, Neal was driving, Black was sitting in the front passenger seat, and Bradford
was in the back seat. Police found a .40 caliber firearm in the glove compartment that
matched cartridge casings recovered from the scene of the Finn Avenue shooting.
{¶21} In August 2015, according to Booker, Bradley Bradford was shot, allegedly
by the Broadway gang, and Neal asked him (Booker) to go to her house and retrieve the
“AK.” Booker went to the house but the police were already there searching the house
so he was unable to get the gun.
{¶22} There was also ample evidence presented at trial that Bradford was part of
the Fleet Avenue gang. We recognize that “nominal or passive association” with a gang
is not enough to prove active gang membership. State v. King, 8th Dist. Cuyahoga No.
98234, 2013-Ohio-574, ¶ 15, citing State v. Hairston, 9th Dist. Summit Nos. 23663 and
23680, 2008-Ohio-891, ¶ 18. In this case, numerous witnesses testified about the “beef”
between the Fleet and Broadway gangs that dated back to the spring of 2015. Booker
testified that he was at the Bradfords’ house on June 6, 2015, with Black and Maurice
Bradford when someone shot up the house.
{¶23} The day after the shooting Booker and Black discussed retaliating against
the Broadway gang because they believed the Broadway gang was responsible for the
shooting. Palmer testified she recognized Black from the Finn Avenue shooting and
“thought” the driver looked liked Bradford.
{¶24} Booker testified that Bradford and Black picked him up after the Finn
Avenue shooting and told him that they had committed that crime to retaliate against the
Broadway gang. Booker then returned with Bradford, Black, and two other Fleet gang
members to the Broadway area to look for Broadway gang members to shoot. They
were not able to find anyone so the men took a picture of themselves in front of a
Broadway-area street sign. Bradford posted the picture to his Instagram account.
{¶25} The state presented other evidence of Bradford’s Instagram posts, in which
Bradford commented on other known gang members’ postings or posted pictures of
himself where other known gang members post. Bradford also posted a picture of his
young son throwing the Fleet gang symbol, a picture of himself with other known gang
members and a caption that referenced the Fleet gang, and various pictures of himself
holding firearms, including one with a caption that referenced deceased gang member
Archie Davis.
{¶26} Detective Al Johnson (“Detective Johnson”) with the Cleveland Police Gang
Impact Unit testified that, based on his training and experience, Bradford was affiliated
with the Fleet Avenue and Click Goons gangs. Detective Johnson explained that
although both of those gangs were subsets of the Heartless Felons, Bradford was not a
member of the Heartless Felons. He explained that the Heartless Felons served as an
umbrella organization and not all Fleet Avenue gang members belonged to the Heartless
Felons. Detective Johnson was convinced that Bradford was a Fleet gang member even
though the state had not produced any pictures of Bradford himself throwing gang
symbols.
{¶27} In light of the above, we find that the state offered compelling direct and
circumstantial evidence to show that Bradford’s constant presence with gang members
proved that his relation to them was more than a mere “association.” Bradford’s
constant presence in the company of other gang members, and in particular his
involvement in skirmishes with the rival Broadway gangs, could cause a rational trier of
fact to conclude that his involvement with the Fleet Avenue gang went beyond passive
association and amounted to active membership in the gang. To find otherwise would
be to ignore the obvious circumstantial evidence. See King, 8th Dist. Cuyahoga No.
98234, 2013-Ohio-574, at ¶ 22. In addition, a reasonable trier of fact could infer that
Bradford was the driver involved in the Finn Avenue shooting; the state presented
sufficient evidence of Bradford’s guilt when all the evidence is considered as a whole.
{¶28} In contrast to a challenge based on sufficiency of the evidence, a manifest
weight challenge attacks the credibility of the evidence presented and questions whether
the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598, ¶ 13. When considering an appellant’s claim that a conviction is
against the manifest weight of the evidence, the court of appeals sits as a “thirteenth
juror” and may disagree “with the factfinder’s resolution of * * * conflicting
testimony.” State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1977), citing
Tibbs v. Florida, 457 U.S. 31, 42, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982). Weight of
the evidence involves “the evidence’s effect of inducing belief.” State v. Wilson, 113
Ohio St. 3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387.
The reviewing court must examine the entire record, weigh the evidence and all
reasonable inferences, consider the witnesses’ credibility and determine whether, in
resolving 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.”’ Thompkins at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485
N.E.2d 717 (1st Dist.1983). In conducting such a review, this court remains mindful
that the credibility of witnesses and the weight of the evidence are matters primarily for
the trier of fact to assess. State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212 (1967),
paragraph one of the syllabus. Reversal on manifest weight grounds is reserved for the
“‘exceptional case in which the evidence weighs heavily against the conviction.”’
Thompkins at id., quoting Martin at id.
{¶29} Bradford challenges the credibility of Ashley Palmer and Fred Booker, both
of whom testified reluctantly for the state. He argues that because Palmer recanted
kidnapping allegations against Bradford during her direct examination (charges that
Bradford was indicted on but were dismissed at the end of the state’s case in chief), none
of her testimony was credible and the trial court erred in relying on any of her testimony
to convict him.
{¶30} As we stated in Black, 8th Dist. Cuyahoga No. 105197, 2017-Ohio-8063:
Palmer acknowledged that she made false statements to the police during
the course of their investigation, and that the state gave her immunity in
exchange for her testimony. Specifically, when Palmer reported her
observations during the Finn Avenue drive-by shooting to the police in
September 2015, she told the officers that Bradley kidnapped her at
gunpoint immediately before the shooting and that Black was present when
the kidnapping took place. During her trial testimony, Palmer
acknowledged that this kidnapping allegation was not true. She explained
that she made up the kidnapping allegation because she was upset that her
brother Antowine * * * had been arrested [for shooting at the Bradford’s
house], upset about all of the shootings that occurred as a result of the feud
between the Broadway and Fleet gangs, and because she was scared.
Palmer explained that although the kidnapping allegation was untrue, the
other aspects of her testimony — particularly her observations during the
Finn Avenue drive-by shooting — were truthful.
Id. at ¶ 29.
{¶31} Bradford also claims that Booker should not be believed because he was a
gang member with a criminal record and was to receive a reduced sentence in an
unrelated case in exchange for his testimony.
{¶32} We are reminded that the trial court, as the trier of fact in this case, was in
the best position to judge the witnesses’ credibility. The court was aware of Palmer’s
false allegations of kidnapping; the charges in relation to those allegations was
subsequently dismissed. The court was also aware of Booker’s lengthy record and his
current criminal cases. Both Bradford and his codefendants had the opportunity to
cross-examine Booker as to his motives for testifying.
{¶33} Moreover, the court did not rely just on the testimony of Palmer and Booker.
The testimony of these two witnesses was corroborated by the other witnesses.
Firearms examiner Kristen Koeth (“Koeth”) and Cleveland Police Detective William
Tinsely (“Detective Tinsely”) testified that police recovered three types of spent cartridge
shells at the scene of the Finn Avenue shooting: (1) five 9 mm casings, (2) three
.40-caliber cartridge casings, and (3) one 7.62 x 39 mm casing that is used in an AK-47
type rifle.
{¶34} Koeth testified that the .40-caliber casings recovered at the scene were fired
by the .40-caliber handgun the police found in Neal’s black SUV hours after the shooting.
As mentioned, Neal was driving the car, and Black and Bradford were in the vehicle.
Detective Tinsley testified that the 7.62 casing was from an “assault weapon,” which was
never recovered but matches the description of the “long gun” Palmer testified Black was
holding during the Finn Avenue shooting.
{¶35} In light of the witnesses’ testimony and the circumstantial evidence that
links Bradford to the crimes, the evidence does not weigh heavily against conviction and
there was sufficient evidence to convict Bradford. Therefore, the first and second
assignments of error are overruled.
Consecutive Sentences — Firearm Specifications
{¶36} In the third assignment of error, Bradford argues that the trial court erred in
ordering a consecutive sentence on the firearm specifications for Count 40, improper
handling of a weapon in a motor vehicle with one-, three-, and five-year firearm
specifications, and Count 41, improper discharge into a habitation with one-, three-, and
five-year firearm specifications.
{¶37} Under R.C. 2929.14(B)(1)(b), a trial court generally cannot impose more
than one prison term on firearm specifications committed as part of the same act or
transaction. An exception to this general rule is found in R.C. 2929.14(B)(1)(g), which
provides, in part:
If an offender is convicted of or pleads guilty to two or more felonies, if one
or more of those felonies are aggravated murder, murder, attempted
aggravated murder, attempted murder, aggravated robbery, felonious
assault, or rape, and if the offender is convicted of or pleads guilty to a
specification of the type described under division (B)(1)(a) of this section in
connection with two or more of the felonies, the sentencing court shall
impose on the offender the prison term specified under division (B)(1)(a) of
this section for each of the two most serious specifications of which the
offender is convicted or to which the offender pleads guilty and, in its
discretion, also may impose on the offender the prison term specified under
that division for any or all of the remaining specifications.
{¶38} In this case, Bradford was convicted of only one of the felonies enumerated
in R.C. 2929.14(B)(1)(g), Count 38, felonious assault. But Bradford was not sentenced
on Count 38. Instead, Counts 38, 39, 41, and 42 merged for sentencing purposes and the
state elected to sentence Bradford on Count 41. The trial court believed, however, that
R.C. 2929.14(B)(1)(g) applied and ran the three-year firearm specification in Counts 40
and 41 consecutive to all other firearm specifications. As mentioned, Bradford was
convicted in Count 40 of improper handling of a weapon in a motor vehicle and in Count
41 of improper discharge into a habitation. These crimes are not enumerated in R.C.
2929.14(B)(1)(g). Thus, the trial court was not mandated to run the firearm
specification in Counts 40 and 41 consecutive to other firearm specifications.
{¶39} The state concedes that the trial court was not required to order consecutive
sentences for the specifications in Counts 40 and 41, but argues that Bradford’s sentences
should be affirmed because the court had the discretion to run the sentences
consecutively.
{¶40} In State v. James, 2015-Ohio-4987, 53 N.E.3d 770 (8th Dist.), the trial court
imposed three firearm specifications consecutively. James argued that the court
mistakenly believed that it was required to run all three firearm
specifications consecutively, when, under R.C. 2929.14(B)(1)(g), the court was only
required to run two of the specifications consecutively. The state argued that the trial
court could have ordered consecutive service of all three firearm specifications, thus, his
sentence should be affirmed. This court rejected the state’s argument explaining that
“there can be no exercise of sentencing discretion when the court so plainly indicates its
belief that it is compelled by statute to impose consecutive sentences and remanded the
case for resentencing.” Id. at ¶ 44.
{¶41} Likewise, in this case, the court could not have been employing its
discretion in sentencing Bradford to consecutive service if the court believed, as it stated,
that it was “constrained” and “required” to impose consecutive sentences. Therefore,
the case is remanded for a resentencing hearing limited to the issue as set forth under this
assignment of error.
{¶42} The third assignment of error is sustained.
{¶43} Affirmed in part; reversed in part; case remanded for proceedings consistent
with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
ANITA LASTER MAYS, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR