State v. Brady , 2024 Ohio 269 ( 2024 )

[Cite as State v. Brady, 2024-Ohio-269.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-230251
C-230252
Plaintiff-Appellee, : TRIAL NOS. 22CRB-17215
23CRB-4021
:
VS.
: O P I N I O N.
CHRISTOPHER BRADY, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Reversed and Appellant Discharged in C-230251;
Affirmed in C-230252
Date of Judgment Entry on Appeal: January 26, 2024
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Connor E. Wood, Assistant Prosecuting Attorney, for Plaintiff-
Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Christopher Brady appeals his convictions,
following a bench trial, for domestic violence and violating a protection order. In three
assignments of error, he challenges the sufficiency and the weight of the evidence
supporting his convictions and argues that he was denied his right to the effective
assistance of counsel.
{¶2} Because the state failed to establish venue for the offense of violating a
protection order, as well as failed to present sufficient evidence that Brady acted
recklessly, we reverse Brady’s conviction and discharge him from further prosecution
for that offense. The judgment of the trial court is otherwise affirmed.
I. Factual and Procedural Background
{¶3} A complaint was filed charging Brady with domestic violence after he
engaged in a physical altercation with his then-girlfriend Shannon Hart in the home
where they resided together. Hart subsequently obtained a domestic-violence
protection order against Brady. The order applied to both Hart and her minor son.
Included in the protection order was a provision prohibiting Brady from initiating any
contact with Hart and her son, including calling them. After he placed several
telephone calls to Hart, Brady was charged with violating a protection order.
{¶4} At the bench trial, Hart testified to the events that led to Brady being
charged with domestic violence. She stated that on October 2, 2022, she and Brady
had been in a relationship for three and a half years and resided in a home together on
Kenwood Road. They were not on good terms the day of the offense and had slept
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separately the night before. Because she “kind of knew the path it was going to take,”
Hart sent her son outside to play.
{¶5} Hart testified that she attempted to leave the house herself, but that
Brady grabbed her keys, which were attached to a lanyard around her neck, to prevent
her from doing so. The two fell to the ground when Hart resisted. As they fell, Brady
elbowed her in the left eye, and her arm hit his knee as they landed. Hart first testified
that Brady held her on the ground for a minute before letting her get up, but she later
stated that they wrestled on the ground for a minute or two after falling. Hart then
tried to leave the through the front door, but Brady slammed it shut before she could
do so. She testified that “I almost got out the front door and he made it just in time to
slam my arm in the door. That’s when the injury to my wrist happened.” She further
testified that “I tried to stick my arm in the door before he slammed it, but it didn’t
work out how I planned.” Hart went to the hospital for her resulting injuries, and she
explained that she suffered a black eye, bruising on her arm, and bruising and
scratches on her wrist.
{¶6} On cross-examination, Hart testified that, despite their altercation in
October of 2022, she continued to reside with Brady until February of 2023. Defense
counsel questioned her about a call that she placed to the police on March 11, 2023,
reporting that Brady had violated his protection order by calling her several times.
Hart denied calling the police in retaliation for Brady reporting her to a children’s
services agency, which resulted in her son being taken out of her home. Defense
counsel moved into evidence and played for the court, over the state’s objection, a
body-worn camera video that depicted Hart’s conversation with the police on March
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OHIO FIRST DISTRICT COURT OF APPEALS
11. After watching the video, Hart conceded that she told the officers that Brady had
reported her to a children’s services agency.
{¶7} Hart clarified on redirect examination that her purpose in calling the
police was to report Brady for violating the protection order. The protection order was
admitted into evidence. Hart testified that Brady had placed the calls that resulted in
the protection-order violation on March 10, 2023, and that she was able to recall the
date because it was the day after she was released from jail in Warren County.
{¶8} The trial court asked Hart several questions about her altercation with
Brady, particularly concerning how she received the injuries to her forearm. Hart told
the court that “[d]uring the struggle for my keys [] we fell to the ground.” The court
attempted to verify that the injury occurred when Hart hit the ground, and she
responded, “I can’t say a hundred percent that it was. I think it was his knee that I
landed on when we hit the ground, because he slammed me back and I landed on him.”
She further stated that “he had his hand on top of mine around my keys, and then he
put his arm around me like this and slammed me to the ground.”
{¶9} Brady testified, presenting a different version of events than those
testified to by Hart. According to Brady, he could tell that Hart was “high” on the
morning of the offense based on her pupils, which he described as tiny and glossy.
Brady saw a bottle of pills inside Hart’s purse. Believing that she was abusing pills,
Brady attempted to reach in the purse. Hart pulled the purse away, which caused its
handle to break. Brady testified that Hart swung the purse at him. He caught it, but
her momentum kept coming and they both fell into the dining room table and chairs
before landing on the floor. Brady denied both grabbing a lanyard from around Hart’s
neck and intentionally hurting her.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} The trial court found Brady guilty of both domestic violence and
violating a protection order. Brady now appeals.
II. Sufficiency of the Evidence
{¶11} In his first assignment of error, Brady argues that his convictions were
not supported by sufficient evidence.
{¶12} In reviewing a challenge to the sufficiency of the evidence, we 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. Walker, 150 Ohio St.3d 409, 2016-
Ohio-8295, 82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d
492 (1991), paragraph two of the syllabus, superseded by constitutional amendment
on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102, 684 N.E.2d 668(1997), fn. 4.
Violating a Protection Order
{¶13} Brady challenges the sufficiency of the evidence supporting his
conviction for violating a protection order on two grounds. He argues that the state
failed to establish venue and failed to present sufficient evidence that he acted
recklessly. We agree with both arguments.
{¶14} “Under Article I, Section 10 [of the Ohio Constitution] and R.C. 2901.12,
evidence of proper venue must be presented in order to sustain a conviction for an
offense.” State v. Foreman, 166 Ohio St.3d 204, 2021-Ohio-3409, 184 N.E.3d 70, ¶ 13,
quoting State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324,
¶ 20; State v. Thurmond, 1st Dist. Hamilton No. C-220480, 2023-Ohio-2404, ¶ 7.
While venue is not an element of an offense, it must be proved beyond a reasonable
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OHIO FIRST DISTRICT COURT OF APPEALS
doubt. Foreman at ¶ 13; Thurmond at ¶ 7. To establish venue, the state must prove
“that the defendant committed the alleged offense or an element of the offense in the
charging county.” Foreman at ¶ 13. Venue can be established by direct or
circumstantial evidence. State v. Hinkston, 1st Dist. Hamilton Nos. C-140448 and C-
140449, 2015-Ohio-3851, ¶ 11. If venue is not established, the conviction must be
reversed. See Foreman at ¶ 31.
{¶15} Because Brady failed to object below to the state’s failure to establish
venue, we review for plain error. See Hinkston at ¶ 10 (holding that “the failure to
prove venue is plain error”).
{¶16} Ohio’s venue laws are codified in R.C. 2901.12. Because Brady was
charged with violating a protection order based on his alleged placing of several
telephone calls to Hart, the provisions of R.C. 2901.12(I)(1) are applicable. This
provision states that:
When the offense involves a computer, computer system, computer
network, telecommunication, telecommunications device,
telecommunications service, or information service, the offender may
be tried in any jurisdiction containing any location of the computer,
computer system, or computer network of the victim of the offense, in
any jurisdiction from which or into which, as part of the offense, any
writing, data, or image is disseminated or transmitted by means of a
computer, computer system, computer network, telecommunication,
telecommunications device, telecommunications service, or
information service, or in any jurisdiction in which the alleged offender
commits any activity that is an essential part of the offense.
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R.C. 2901.12(I)(1). A “telecommunications device” includes both a telephone and
cellular telephone. R.C. 2913.01(Y). Pursuant to R.C. 2901.12(I)(1), to establish venue,
the state had to prove that Brady’s telephone calls to Hart were either made or received
in Hamilton County. The record contains no such evidence.
{¶17} While Hart testified that her home on Kenwood Road was located in
Hamilton County, she did not testify that she was at her home when she received the
telephone calls from Brady that led to him being charged with a violation of the
protection order. In fact, Hart provided no testimony as to her location when she
received Brady’s telephone calls. She stated that Brady called her the day after she was
released from jail in Warren County, but her testimony did not establish that she had
returned to Hamilton County when the calls were received. Nor did Brady’s testimony
address the telephone calls to Hart or establish his location when the calls were made.
{¶18} Brady’s telephone calls to Hart were discussed in the body-worn camera
video that was admitted at trial. But the conversation between Hart and the
responding officers with respect to these calls did not disclose the location of either
Hart or Brady at the time that the calls were made or received.
{¶19} We accordingly hold that the record contains no evidence, either direct
or circumstantial, that Brady’s calls to Hart were made or received in Hamilton
County, and that the state failed to establish venue beyond a reasonable doubt.
{¶20} Brady next argues that the state failed to present sufficient evidence that
he acted recklessly. The state concedes this argument.
{¶21} Brady was convicted of violating a protection order in violation of R.C.
2919.27(A)(1), which provides that “[n]o person shall recklessly violate the terms of *
* * [a] protection order issued or consent agreement approved pursuant to section
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OHIO FIRST DISTRICT COURT OF APPEALS
2919.26 or 3113.31 of the Revised Code.”1 The mental state of recklessly is defined in
R.C. 2901.22(C), which provides that “[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.”
{¶22} Other than Hart’s testimony that Brady called her on March 10, the state
introduced no evidence concerning the offense of violating a protection order. The
record contains no evidence regarding the amount of times Brady called Hart, whether
Brady was, in fact, the person placing the telephone calls, whether Hart answered the
calls, or what Brady’s purpose was in placing the calls. As the state concedes, the record
contains no evidence that Brady recklessly violated the terms of the protection order.
{¶23} Because the state failed to establish that the offense of violating a
protection order occurred in Hamilton County and failed to present sufficient evidence
that Brady acted recklessly, Brady’s conviction for violating a protection order must be
reversed.
Domestic Violence
{¶24} Brady contends that his conviction for domestic violence must be
reversed because the state failed to present sufficient evidence that he acted
knowingly.
{¶25} Brady was convicted of domestic violence in violation of R.C.
2919.25(A), which provides that “[n]o person shall knowingly cause or attempt to
cause physical harm to a family or household member.” Pursuant to R.C. 2901.22(B),
1 The protection order in this case was issued pursuant to R.C. 2919.26.
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OHIO FIRST DISTRICT COURT OF APPEALS
“[a] person acts knowingly, regardless of purpose, when the person is aware that the
person’s conduct will probably cause a certain result or will probably be of a certain
nature. A person has knowledge of circumstances when the person is aware that such
circumstances probably exist.” A person is “presumed to intend the natural,
reasonable and probable consequences of his voluntary acts.” State v. Morris, 1st Dist.
Hamilton No. C-150421, 2016-Ohio-5490, ¶ 9, citing State v. Johnson, 56 Ohio St.2d
35, 39, 381 N.E.2d 637 (1978).
{¶26} Hart testified that Brady slammed her to the ground while trying to gain
hold of the keys that she wore in a lanyard around her neck, resulting in her suffering
a black eye and bruising to her arm. Hart further testified that Brady slammed the
front door shut while she was attempting to exit through it, resulting in an injury to
her wrist which was caught in the door as it shut. Viewing this evidence in the light
most favorable to the prosecution, as we are required to do when reviewing the
sufficiency of the evidence, see Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82
N.E.3d 1124, at ¶ 12, we hold that the state presented sufficient evidence that Brady
was aware that his conduct was likely to cause injury to Hart and that he knowingly
caused her physical harm. Brady’s conviction for domestic violence was supported by
sufficient evidence.
{¶27} The first assignment of error is accordingly sustained in part and
overruled in part.
III. Ineffective Assistance
{¶28} In his second assignment of error, Brady argues that his trial counsel
was ineffective for needlessly introducing credibility evidence on cross-examination,
specifically the body-worn camera video from the officer that responded to Hart’s
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OHIO FIRST DISTRICT COURT OF APPEALS
report that Brady violated the protection order. Brady argues that this evidence
affected the outcome of the trial with respect to his conviction for violating a protection
order and that he would not have been convicted of that offense but for this evidence.
{¶29} This assignment of error is rendered moot by our resolution of the first
assignment of error, in which we determined that Brady’s conviction for violating a
protection order must be reversed because the state failed to establish venue and failed
to present sufficient evidence that Brady recklessly violated the protection order, and
we decline to address it. App.R. 12(A)(1)(c); see State v. Sullivan, 1st Dist. Hamilton
Nos. C-130628 and C-130629, 2014-Ohio-3112, ¶ 12 (where conviction was reversed
on venue grounds, assignments of error challenging manifest weight and arguing
ineffective assistance were moot).
IV. Manifest Weight of the Evidence
{¶30} In his third assignment of error, Brady argues that his conviction for
domestic violence was contrary to the manifest weight of the evidence.2
{¶31} When reviewing a challenge to the manifest weight of the evidence, this
court must “review the entire record, weigh the evidence, consider the credibility of
the witnesses, and determine whether the trier of fact clearly lost its way and created
a manifest miscarriage of justice.” State v. Powell, 1st Dist. Hamilton No. C-190508,
2020-Ohio-4283, ¶ 16, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d
541 (1997).
{¶32} Brady specifically contends that the manifest weight of the evidence
shows that he did not act knowingly. We have already held that Hart’s testimony, if
2 Brady additionally contends that his conviction for violating a protection order was against the
manifest weight of the evidence. But, having found that this conviction must be reversed on
sufficiency grounds, this argument is moot.
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believed, established that Brady knowingly caused her physical harm. While Brady
provided a different version of events for the trial court to consider, the trial court was
in the best position to judge the credibility of the witnesses. State v. DeHass, 10 Ohio
St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus; State v. Shepard, 1st
Dist. Hamilton No. C-190747, 2021-Ohio-964, ¶ 62. It was entitled to reject Brady’s
testimony that he did not grab a lanyard from around Hart’s neck or intentionally hurt
her, and to believe the testimony offered by Hart that Brady slammed her to the
ground in an attempt to gain hold of her keys and slammed her wrist in the front door.
{¶33} This was not the rare case in which the trial court lost its way and
committed a manifest miscarriage of justice in convicting Brady. See Powell at ¶ 16.
We hold that Brady’s conviction for domestic violence was supported by the manifest
weight of the evidence and we overrule the third assignment of error.
V. Conclusion
{¶34} Brady’s conviction for violating a protection order is reversed, and he is
discharged from further prosecution for that offense. The trial court’s judgment is
otherwise affirmed.
Judgment accordingly.
BERGERON, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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