State v. Bradford

2024 Ohio 2233

Opinion

[Cite as State v. Bradford, 2024-Ohio-2233.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-230455 TRIAL NO. 23CRB-9124 Plaintiff-Appellee, :

vs. : O P I N I O N. PIERRE BRADFORD, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 12, 2024

Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Ashton Tucker, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Judge.

{¶1} Pierre Bradford was convicted, after a jury trial, of violating a protection

order. In two assignments of error, Bradford argues that the trial court erred by

permitting other-acts testimony that was irrelevant and prejudicial, and his conviction

was not supported by sufficient evidence and was contrary to the manifest weight of

the evidence.

Factual Background

{¶2} Bradford was charged with violating a protection order that prohibits

him from entering Fanta Spell’s “place of employment,” requires him to not be present

within 500 feet of Spell, and prohibits him from initiating or having contact with Spell

or her places of employment. Bradford pled not guilty and requested a jury trial.

{¶3} Prior to trial, the city filed a notice of intent to introduce other-acts

evidence to show intent, knowledge, and absence of mistake. The city intended to elicit

testimony from Spell regarding Bradford’s criminal conduct that ultimately resulted

in the issuance of the protection order. Bradford filed a motion in limine seeking to

prevent the other-acts testimony. At the hearing on the motion, the city explained that

Spell would testify to the following facts: that Bradford threw urine on her while she

was outside of the streetcar’s office at the streetcar facility. The purpose was to give

the jury context and “make[] it clearer for the jury as to why a protection order was

asked for in the first place.”

{¶4} Bradford argued that the prior conviction was inadmissible and

prejudicial, and had no probative value because Bradford was not challenging the

validity or service of the protection order. Bradford further argued that the factual

findings by the court that issued the order had been redacted, and allowing the witness

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to testify to the underlying facts had no probative value and was highly prejudicial.

{¶5} The court concluded that the testimony should not be analyzed as prior

bad acts because the acts were relevant to the issuance of the order and provided the

jurors with context regarding the issuance of the protection order, and that the

probative value outweighed the prejudice. The court offered to give a limiting

instruction when the evidence was introduced.

Trial Testimony

{¶6} The city’s first witness was Donna Faulks who is employed as a

supervisor for the streetcar. She supervises the streetcar operators and is responsible

for track access. Fanta Spell is a streetcar operator who is under the supervision of

Faulks. Faulks knew that Spell had obtained a protection order against Bradford.

Faulks also knew Bradford from when she was a streetcar operator.

{¶7} On May 29, 2023, Faulks was conducting an external ride evaluation of

Spell who was operating a streetcar. After completing Spell’s evaluation, Faulks was

driving to the next streetcar to complete another external ride evaluation. As she

approached 12th and Vine Streets, she looked to her right and saw Bradford standing

on a streetcar platform. Faulks knew that Spell was operating a streetcar that would

approach that platform in a few stops, so she decided to warn Spell and stop her from

approaching the platform. Faulks, who was driving a marked city of Cincinnati

supervisor vehicle, turned on her hazard and operational lights. Bradford saw her car

and went north on Vine Street. Faulks drove to the streetcar maintenance and

operations facility (“MOF”) at 1927 Race Street and informed her supervisor that she

had seen Bradford. Faulks testified that the streetcar workplace is a 3.5 mile loop with

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18 stops through downtown Cincinnati. The platforms are leased to SORTA by the

city.

{¶8} Fanta Spell testified that she is employed as a streetcar operator.

Bradford objected when the prosecutor asked Spell how she knew Bradford. Prior to

her response, the trial court instructed the jury that the testimony is “being admitted

to provide context as to the issuance of the civil protection order. It is not received

and you may not consider that prior conduct for any other purpose.” Spell testified

that she knew Bradford “from him boarding the streetcar and seeing him outside the

streetcar.” Spell was asked why she filed a petition for a protection order against

Bradford, and over objection, Spell testified, “Because on June 16th of 2022, there was

an assault against me by Mr. Bradford who, outside of my employer, waited for me to

come outside and he proceeded to throw urine on me.” At the time she obtained the

protection order, Spell was a streetcar operator.

{¶9} A side bar discussion occurred, and Bradford objected to the testimony

that he committed an assault. Bradford was charged with assault, but convicted of

menacing. The court instructed the jury to disregard the word “assault.” A redacted

copy of the protection order was admitted into evidence by agreement of the parties.

All of the factual findings were redacted.

{¶10} Spell testified that when she returned to MOF and got off the streetcar,

she learned that Bradford had been at the streetcar platform. When the streetcar stops

at a platform, she is approximately two feet from the platform. Spell further testified

that she had no contact with Bradford that day and did not see him at the 12th and

Vine stop.

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{¶11} Sergeant Linda Sellers, who works for the Cincinnati Police

Department, was working a streetcar detail that day. As she was signing in, she

learned that Bradford had been on the platform. Sellers spoke with Faulks, reviewed

the protection order, went back to the district, and eventually filed charges.

{¶12} Deputy Katie Carrier testified that she ordinarily serves protection

orders at the jail. The court called for a brief side bar, then informed the jury that the

parties stipulated that Bradford was served with the protection order. No further

questions were asked of Carrier.

{¶13} Again the trial recessed briefly, and Bradford requested a mistrial due

to the testimony that Bradford assaulted Spell, which the court overruled. Then

Bradford moved for a judgment of acquittal because Box 13 on the protection order

does not specify that Bradford is prohibited from streetcar platforms. Box 13 provides

a space for the trial court to issue further orders. He further argued that Bradford had

no contact with Spell and did not violate the protection order.

{¶14} The city argued that Bradford violated the provision that states:

“Respondent shall not enter the residence, school, business, place of employment of

the protected party.” The city contended that the streetcar platforms constitute the

place of employment. The court overruled the motion, concluding that the jury should

determine whether the platform “falls within the parameters of the protection order.”

{¶15} Both parties rested and proceeded to closing arguments. The city

argued to the jury that Bradford violated the provision that prohibited him from

entering Spell’s place of employment because the streetcar, the headquarters, and the

platforms are part of the place of employment. The order specifically included “the

buildings, the grounds, and parking lots,” and the platform is part of the grounds.

5 OHIO FIRST DISTRICT COURT OF APPEALS

Bradford argued that he was prohibited from Spell’s workplace at MOF, but not the

streetcar platforms. The jury found Bradford guilty of violating the protection order

in violation of R.C. 2919.27.

{¶16} Bradford appealed, and in two assignments of error, Bradford argues

that the trial court erred by permitting other-acts testimony that was irrelevant and

prejudicial, and his conviction was not supported by sufficient evidence and was

contrary to the manifest weight of the evidence.

Admissibility of Other-Acts Evidence

{¶17} The admissibility of other-acts evidence is a question of law that we

review de novo. State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d

651, ¶ 22.

{¶18} Evid.R. 404(B) provides that “[e]vidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action in

conformity therewith. It may, however, be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.” Similarly, R.C. 2945.59 provides that:

In any criminal case in which the defendant’s motive or intent, the

absence of mistake or accident on his part, or the defendant’s scheme,

plan, or system in doing an act is material, any acts of the defendant

which tend to show his motive or intent, the absence of mistake or

accident on his part, or the defendant’s scheme, plan, or system in doing

the act in question may be proved, whether they are contemporaneous

with or prior or subsequent thereto, notwithstanding that such proof

may show or tend to show the commission of another crime by the

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defendant.

{¶19} Other-acts evidence may not be used to establish a defendant’s

propensity to commit crime or to demonstrate that an accused committed the crime

in question because of her or his proclivity to commit crime in general. Hartman at ¶

21. To be admissible, the other-acts evidence must be “probative of a separate,

nonpropensity-based issue” and “must go to a ‘material’ issue that is actually in

dispute between the parties.” Id. at ¶ 22, 27. Thus, this court must analyze whether

the other-acts evidence was (1) “relevant to the particular purpose for which it [was]

offered” and (2) relevant “to a material issue that is actually in dispute between the

parties.” Id. at ¶ 26-27.

{¶20} In this case, the state sought to introduce the facts of the underlying

crime that resulted in the issuance of the protection order. The sole purpose was to

provide the jury with context as to the issuance of the protection order. Bradford

argued that the facts of the underlying conviction were irrelevant because Bradford

was not challenging the validity or service of the protection order, and the underlying

facts were extremely prejudicial.

{¶21} The trial court concluded that the testimony was not other-acts

evidence, was admissible to provide context to the jury about the issuance of the

protection order, and that the probative value outweighed any prejudice.

{¶22} “Context” is not a permissible purpose under Evid.R. 404(B). Other-

acts evidence is admissible when the other acts demonstrate the “setting” of a case and

are part of the “immediate background” of the charged offenses. State v. Warth, 1st

Dist. Hamilton No. C-220477, 2023-Ohio-3641, ¶ 57; State v. Fritsch, 1st Dist.

Hamilton No. C-220570, 2023-Ohio-2676, ¶ 13; State v. Mincey, 2023-Ohio-472, 208

7 OHIO FIRST DISTRICT COURT OF APPEALS

N.E.3d 1043, ¶ 19 (1st Dist.). “However, this theory is limited to those events that are

‘contemporaneous’ with the charged conduct and necessary to add ‘meaning and

context’ to other, relevant testimony.” In re J.P., 1st Dist. Hamilton Nos. C-220647

and C-220648, 2023-Ohio-4816, ¶ 53. Here, the offense that prompted the protection

order occurred in 2022, and was not contemporaneous with the protection-order

violation. See id. Moreover, the validity of the protection order was not a material

issue in the case because Bradford stipulated to the validity and service of the

protection order. Therefore, the trial court erred in admitting the testimony. See id.

at ¶ 55.

{¶23} On appeal, the city further argues that the testimony was admissible to

explain the victim’s state of mind and lack of mistake. Those arguments were not

raised in the trial court and are waived. Moreover, the arguments are without merit

because the victim’s state of mind was not an issue in this case. Spell never saw

Bradford on the platform and was unaware of his presence until after the alleged

violation. Admission for lack of mistake focuses on the defendant’s conduct and

whether the prior acts show that the defendant acted purposefully, rather than

accidentally or mistakenly, in committing the current offense. See State v. Bey, 8th

Dist. Cuyahoga No. 106745, 2019-Ohio-1884, ¶ 55. The facts of the initial conviction

were not relevant to Bradford’s violation of the protection order. The sole issue in the

case was the scope of the protection order.

{¶24} Having determined that these statements were improperly admitted, we

must determine what effect, if any, their admission had on the outcome. Because

Bradford objected to these statements, we review for harmless error. State v. Jones,

160 Ohio St.3d 314, 2020-Ohio-3051, 156 N.E.3d 872, ¶ 18. Under this standard, the

8 OHIO FIRST DISTRICT COURT OF APPEALS

admission of other-acts evidence is harmless when there is no reasonable possibility

that the evidence contributed to the conviction. State v. Tench, 156 Ohio St.3d 85,

2018-Ohio-5205, 123 N.E.3d 955, ¶ 177.

{¶25} In State v. Fuchs, the court reversed Fuchs’s conviction for violating a

protection order due to the ineffectiveness of trial counsel. State v. Fuchs, 2d Dist.

Montgomery No. 27873, 2019-Ohio-4294, ¶ 22 (“State’s Exhibit 4 included unfairly

prejudicial evidence of other acts, and we find that Fuchs’s trial counsel rendered

ineffective representation by failing to object to the admission of the exhibit without

redactions. We find further that the jury’s receipt of the exhibit gives rise to a

reasonable possibility that the outcome of Fuchs’s trial would have been different had

the exhibit not been introduced into evidence, or had it been entered into evidence

only in a redacted form.”). Counsel had stipulated that Fuchs was subject to the

protection order and was properly served. Id. at ¶ 13. Counsel failed to object to the

admission of state’s Exhibit 4, which was a copy of the protection order and the

magistrate’s decision which included the facts of the underlying offense that prompted

the issuance of the order. Id. at ¶ 14. The court found:

a reasonable probability that the outcome of Fuchs’s trial would have

been different had State’s Exhibit 4 not been admitted into evidence.

The protection order itself stated that Fuchs had been engaged in a

“pattern of [threatening] conduct,” and the magistrate’s findings of fact

presented the jury with potentially inflammatory descriptions of

Fuchs’s past behavior. Irrespective of the exhibit’s relevance, “evidence

is not admissible if its probative value is substantially outweighed by the

danger of unfair prejudice,” and it “may be excluded if its probative

9 OHIO FIRST DISTRICT COURT OF APPEALS

value is substantially outweighed” by its redundancy. See Evid.R.

403(A)-(B). Here, the magistrate’s findings of fact posed a significant

risk of causing Fuchs unfair prejudice, but even otherwise, the

admission of the exhibit was needlessly cumulative because Fuchs had

stipulated to the validity of the protection order and to his previous

conviction.

Id. at ¶ 17.

{¶26} However, the evidence against Fuchs was contested. One state witness,

who lived next to the protected person, testified that she saw Fuchs driving his truck

in the neighborhood. Id. at ¶ 15. Two other neighbors saw a truck similar to Fuchs’s

truck but did not see the driver. Id. One of Fuchs’s witnesses testified that Fuchs and

he had been kayaking when the alleged violation occurred, and Fuchs’s mother

testified that his truck was inoperable that day. Id. at ¶ 15.

{¶27} Here, the evidence established that Bradford was on a streetcar

platform. Faulks, who knew Bradford, testified that she saw him standing on the

platform. Bradford argued that the protection order prohibited him from her office

where the initial offense occurred, but did not specify that he was prohibited from the

streetcar platforms. Additionally, the trial court gave a limiting instruction to the jury

when the testimony was elicited informing the jurors that the testimony is “being

admitted to provide context as to the issuance of the civil protection order. It is not

received and you may not consider that prior conduct for any other purpose.”

{¶28} Based on this record, the impact of any error in admitting the testimony

was minimal. Bradford’s substantial rights were not prejudiced because there is no

reasonable possibility that this evidence contributed to his conviction given the other

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evidence presented at trial.

{¶29} We overrule the first assignment of error.

Sufficiency and Manifest Weight

{¶30} Next, Bradford contends that his conviction was not supported by

sufficient evidence and was contrary to the manifest weight of the evidence.

{¶31} In reviewing a challenge to the sufficiency of the evidence, we must

determine whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime had been proved beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259,

574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶32} As to the weight of the evidence, “an appellate court must review the

entire record, weigh the evidence and all reasonable inferences, consider the

credibility of the witnesses, and determine whether, in resolving conflicts in the

evidence, the trier of fact clearly lost its way and created a manifest miscarriage of

justice.” State v. Glover, 1st Dist. Hamilton No. C-180572, 2019-Ohio-5211, ¶ 29,

citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We afford

substantial deference to credibility determinations because the factfinder sees and

hears the witnesses. See Glover at ¶ 30.

{¶33} R.C. 2919.27(A)(1) provides that “[n]o person shall recklessly violate the

terms of * * * [a] protection order issued or consent agreement approved pursuant to

R.C. 2919.26 or 3113.31 of the Revised Code.” R.C. 2901.22(C) 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.”

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{¶34} Here, Bradford was convicted for violating the following term of the

protection order: “1. RESPONDENT SHALL NOT ENTER the residence, school,

business, [or] place of employment * * * of the protected persons named in this Order,

including the buildings, grounds, and parking lots at those locations.”

{¶35} Bradford argues that the evidence was insufficient to establish that the

protection order prohibited him from the streetcar platform. Further, he argues that

the streetcar platforms are owned by the city of Cincinnati and thus are public spaces

which cannot be included in a protection order, that the streetcar operator is inside

the streetcar and shielded from a person on the platform by glass and the streetcar

itself, and at most the protection order encompassed the streetcar operations

headquarters and the streetcars themselves.

{¶36} The plain language of the order prohibits Bradford from entering her

place of employment, which includes the buildings, grounds, and parking lots at those

locations. Spell is employed as a streetcar operator, thus her place of employment

includes the streetcars, and the grounds, which encompasses the platforms. Faulks’s

testimony that she saw Bradford sitting on the platform at 12th and Vine Streets was

sufficient to prove that he violated the protection order.

{¶37} Bradford further argues that the evidence failed to demonstrate beyond

a reasonable doubt that he recklessly violated the civil protection order because he left

the platform before Spell arrived. However, the protection order prohibits Bradford

from entering Spell’s place of employment and does not require Spell to be present.

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. This is not an exceptional case in which the evidence weighs heavily against

12 OHIO FIRST DISTRICT COURT OF APPEALS

the conviction.

{¶38} Accordingly, we overrule the second assignment of error.

Conclusion

{¶39} Having overruled Bradford’s two assignments of error, we affirm the

judgment of the trial court.

Judgment affirmed.

WINKLER, J., concurs. BOCK, P.J., concurs separately.

BOCK, P.J., concurring separately.

{¶40} I agree with the majority that the trial court’s admission of the other-

acts evidence was harmless. I write separately, however, because I believe that this

evidence would have required a reversal had Bradford’s presence on the platform been

disputed.

{¶41} As noted by the majority, the state must establish that the error was

harmless beyond a reasonable doubt. State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-

5052, 24 N.E.3d 1153, ¶ 28; State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802

N.E.2d 643, ¶ 15; see Crim.R. 52(A). In reviewing for harmless error, we must “excise

the improper evidence from the record and then look to the remaining evidence.”

Morris at ¶ 29. And a holding that an error was harmless is appropriate only in cases

where there was “either overwhelming evidence of guilt or some other indicia that the

error did not contribute to the conviction.” Id., quoting State v. Rahman, 23 Ohio

St.3d 146, 151, 492 N.E.2d 401 (1986), quoting State v. Ferguson, 5 Ohio St.3d 160,

166, 450 N.E.2d 265 (1983), fn. 5. Of course, an appellate court should be mindful that

we do not “sit as the supreme trier of fact,” and instead are tasked with assessing only

13 OHIO FIRST DISTRICT COURT OF APPEALS

“the impact of this erroneously admitted testimony on the jury.” Id., quoting Ferguson

at fn. 5.

{¶42} To convict Bradford of violating the protection order, the state had to

prove that Bradford recklessly entered Spell’s place of employment in violation of the

protection order. Thus, in addition to proving recklessness and that the platform was

part of Spell’s place of employment, the state had to prove identity—that the person

on the platform was Bradford.

{¶43} Having reviewed the evidence at trial, I do not believe that there was

overwhelming evidence that Bradford was on the platform. The only evidence the state

offered to establish that element of the offense was Faulks’s testimony. And Faulks’s

testimony as to how she knew Bradford was vague. Faulks testified that she knew of

Bradford because when she was a streetcar operator, a person whose name she did not

know sat on a dangerous place on the platform. She did not know who that person was

at the time, did not testify that she had ever seen him herself, and did not learn who

he was until “the incident that happened to” Spell. Faulks did not specify which

incident or how she connected the person who had been sitting on the platform to

Bradford. Faulks spotted who she believed was Bradford while she was driving,

through the passenger-side window. According to Faulks, she turned on her hazard

lights and the person she identified as Bradford looked at the car and ran off.

{¶44} The other-acts evidence was prejudicial by its very nature. A person

throwing urine at another person is vile. In terms of proving identity, I do not believe

the state established beyond a reasonable doubt that Spell’s testimony about this

odious act was harmless. See Morris at ¶ 32 (“blatant prejudice may override even a

strong case and require a new trial.”). While Faulks specifically described the clothing

14 OHIO FIRST DISTRICT COURT OF APPEALS

that the person on the platform wore, she only saw the person on the platform briefly.

Moreover, Faulks did not clearly state how she knew Bradford was the person that had

thrown urine on Spell or how she identified Bradford. The burden of satisfying the

harmless-error standard falls on the state, and the standard is “a standard significantly

more favorable to the defendant.” Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802

N.E.2d 643, at ¶ 15, quoting United States v. Curbelo, 343 F.3d 273, 286 (4th

Cir.2003). Had the issue of identity been properly before us, I would be unable to

conclude that the error in this case was harmless.

{¶45} On appeal, however, Bradford did not argue that the state failed to prove

that he was the person standing on the streetcar platform. Instead, Bradford argued

that the platform was not part of Spell’s place of employment and that the state failed

to prove that Bradford acted recklessly. Because I believe that the evidence definitively

established that the streetcar platform was part of Spell’s place of employment and

that Bradford acted recklessly, I do not believe that the result would have changed had

the trial court refused to admit the other-acts evidence.

{¶46} Accordingly, I concur separately in the majority’s opinion.

Please note: The court has recorded its own entry this date.