State v. Brady

2024 Ohio 269

• Court: Ohio Court of Appeals
• Decided: January 26, 2024
• Docket: C-230251 & C-230252
• Status: Published

Opinion

[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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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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{¶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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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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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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“[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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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. 10 OHIO FIRST DISTRICT COURT OF APPEALS

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.