[Cite as State v. Bradford,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 11CA928 : vs. : : DECISION AND JUDGMENT CHAD BRADFORD, : ENTRY : Defendant-Appellant. : Released: 02/08/13

APPEARANCES:

Timothy Young, Ohio State Public Defender, and Kristopher A. Haines, Ohio State Assistant Public Defender, Columbus, Ohio, for Appellant.

C. David Kelley, Adams County Prosecutor, and Kris D. Blanton, Assistant Adams County Prosecutor, West Union, Ohio, for Appellee.

McFarland, P.J.:

{¶1} Chad Bradford appeals his conviction in the Adams County Court of

Common Pleas after a jury found him guilty of bribery, in violation of R.C.

2921.02(D). Bradford raises three assignments of error, arguing 1) the evidence

was insufficient to convict him of bribery because he was never subpoenaed or

sworn as a witness, 2) the trial court committed plain error when it failed to

properly instruct the jury; and, 3) trial counsel rendered ineffective assistance of

counsel when it failed to object to the erroneous jury instructions. After viewing

the evidence in a light most favorable to the prosecution, we conclude that any Adams App. No. 11CA928 2

rational trier of fact could have found the essential elements of the crime of bribery

proven beyond a reasonable doubt. As such, Appellant’s first assignment of error

is overruled. Further, having found no plain error with respect to the trial court’s

provision of jury instructions, Appellant’s second assignment of error is overruled.

Finally, having failed to find plain error in the provision of jury instructions, we

cannot conclude that trial counsel’s failure to object to the instructions constituted

ineffective assistance of counsel. Thus, Appellant’s third assignment of error is

overruled.

{¶2} Having found no merit to the assignments of error raised by Appellant,

we affirm the decision of the trial court.

FACTS

{¶3} Bradford’s nephew, Terry “Shay” Morgan, stabbed Bradford several

times during an altercation, requiring Bradford be transported to Cincinnati, Ohio

for emergency medical treatment. Once the hospital released Bradford, he spoke

with Shay’s fiancée. She relayed to Bradford that Shay’s father may be willing to

pay Bradford to not attend a grand jury hearing against Shay. Shay’s fiancée acted

as a conduit between the two, who determined that for $1,000, Bradford would not

attend the hearing and would not testify against Shay.

{¶4} Shay’s father testified he did not initially offer money in exchange for

Bradford’s silence; he had made a joke about it, yet Shay’s fiancée relayed the Adams App. No. 11CA928 3

statement to Bradford, who interpreted it as a serious offer. Shay’s father

contacted the Winchester Police Department once Bradford decided he would

accept $1,000 in order to not testify against Shay.

{¶5} The Winchester Police Department, along with Chief Caudill, set up a

sting. They gave Shay’s father $500 to give to Bradford, and outfitted his truck

with audio and video surveillance. The money had been photographed beforehand

in order to track the serial numbers.

{¶6} Bradford subsequently met with Shay’s father in his truck. The two

discussed the transaction, whereby Shay’s father would give Bradford $500

before he was scheduled to testify against Shay and $500 afterward, assuming

Bradford had actually not appeared at the hearing.

{¶7} The men met two days later and Shay’s father gave Bradford $500 the

day before Bradford was to testify against Shay. Immediately after that

transaction, Chief Caudill and other law enforcement arrested Bradford for bribery.

{¶8} Bradford proceeded to trial. At trial, Shay’s fiancée, Shay’s father, and

Chief Caudill testified. No one mentioned whether Bradford had ever been

subpoenaed as a witness, and no one testified that Bradford had been sworn as a

witness in any proceeding. At the close of the state’s case in chief, Bradford made

a Crim.R. 29 motion for acquittal without argument; the state opposed the motion,

but also gave no argument. Adams App. No. 11CA928 4

{¶9} The trial court went through the elements of bribery, under R.C.

2912.02(D), and noted what evidence the state had produced regarding each

element. Specifically, the court noted, “the defendant had been subpoenaed to

testify at the grand jury on the 27th.” (Tr. at 423.) Then, it stated, “[I]f the trier-

of-fact, being the jury, believes uh, the substance of the- uh, uh, of the content of

the State’s Exhibits ‘1’ and ‘2,’ [the video surveillance recordings] uh, then there

appears to be some acknowledgement by uh, the defendant that he was aware that

he was uh, subpoenaed and/or sworn as a witness in this case, being subpoenaed.”

(Tr. at 423-424.)

{¶10} Thus, the trial court overruled Bradford’s motion for acquittal and

counsel proceeded to closing arguments. The jury convicted Bradford of bribery

and the court sentenced him to four years of incarceration. Bradford now appeals.

ASSIGNMENTS OF ERROR

I. “The trial court violated [Appellant’s] rights to due process and a fair trial

when, in the absence of sufficient evidence, the trial court convicted

[Appellant] of bribery under R.C. 2921.02(D), in violation of his Fifth,

Sixth, and Fourteenth Amendment rights under the United States

Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.”

II. “The trial court committed plain error when it failed to properly instruct

the jury regarding its deliberations, in violation of [Appellant’s] Fifth, Sixth, Adams App. No. 11CA928 5

and Fourteenth Amendment rights under the United States Constitution, and

Sections 10 and 16, Article I of the Ohio Constitution.

III. “Trial counsel rendered ineffective assistance of counsel in violation of

[Appellant’s] Fifth, Sixth, and Fourteenth Amendment rights under the

United States Constitution, and Sections 10 and 16, Article I of the Ohio

Constitution.

ASSIGNMENT OF ERROR I

A. Standard of Review

{¶11} In his first assignment of error, Appellant contends that the trial court

violated his rights to due process and a fair trial when, in the absence of sufficient

evidence, the trial court convicted him of bribery under R.C. 2921.02(D), in

violation of his Fifth, Sixth, and Fourteenth Amendment rights under the United

States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.

“An appellate court’s function when reviewing the

sufficiency of the evidence to support a criminal

conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would

convince the average mind of the defendant’s guilt

beyond a reasonable doubt. The relevant inquiry is

whether, after viewing the evidence in a light most Adams App. No. 11CA928 6

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,

,

, at paragraph two of the

syllabus (1991) (superseded by statute and constitutional

amendment on other grounds).

{¶12} This test raises a question of law and does not allow the appellate

court to weigh the evidence. State v. Osman, 4th Dist. No. 09CA36, 2011-Ohio-

4626, at ¶ 39. A sufficiency of the evidence challenge tests whether the state’s

case is legally adequate to go to a jury in that it contains prima facie evidence of all

of the elements of the charged offense. See Portsmouth v. Wrage, 4th Dist. No.

08CA3237,

, at ¶ 36.

{¶13} A conviction that is based on legally insufficient evidence constitutes

a denial of due process. See State v. Thompkins (1997),

, 386-

87,

. And “the Double Jeopardy Clause precludes retrial once the

reviewing court has found the evidence legally insufficient to support a

conviction.” (Internal quotation marks omitted.) Tibbs v. Florida,

, 40-

41,

, (1982); see also

. Adams App. No. 11CA928 7

B. Legal Analysis

{¶14} “No person, either before or after he is subpoenaed or sworn as a

witness, shall knowingly solicit or accept for himself or another person any

valuable thing or valuable benefit to corrupt or improperly influence him with

respect to his testimony in an official proceeding.” R.C. 2921.02(D).

Venerable principles of statutory construction require

that in construing statutes, we must give effect to every

word and clause in the statute. Boley v. Goodyear Tire &

Rubber Co.,

,

,

. We must ‘read words and phrases in

context and construe them in accordance with rules of

grammar and common usage,’ State ex rel. Russell v.

Thornton,

,

,

, and we may not restrict, constrict,

qualify, narrow, enlarge, or abridge the General

Assembly's wording, Weaver v. Edwin Shaw Hosp.,

,

,

,

quoting Wachendorf v. Shaver,

,

(1948), paragraph five of the syllabus.

Instead, we must accord significance and effect to every Adams App. No. 11CA928 8

word, phrase, sentence, and part of the statute,

and

abstain from inserting words where words were not

placed by the General Assembly, Cassels, 69 Ohio St.3d

at 220,

, citing State v. S.R.,

,

(1992).

‘No part [of the statute] should be treated as

superfluous unless that is manifestly required, and the

court should avoid that construction which renders a

provision meaningless or inoperative.’ State ex rel.

Myers v. Spencer Twp. Rural School Dist. Bd. of Edn.,

, 373,

(1917). ‘Statutes must

be construed, if possible, to operate sensibly and not to

accomplish foolish results.’ State ex rel. Saltsman v.

Burton,

,

(1950).

When we conclude that a statute’s language is

clear and unambiguous, we apply the statute as written,

Cheap Escape Co., Inc. v. Haddox, L.L.C.,

,

,

, giving

effect to its plain meaning, Slingluff v. Weaver,

,

(1902), paragraph two of the Adams App. No. 11CA928 9

syllabus. State ex rel. Carna v. Teays Valley Local

School Dist. Bd. of Edn.,

, 2012-Ohio-

1484,

, at ¶ 18-20.

{¶15} Applying the statute as written, we conclude that the plain language

of the statute “either before or after he is subpoenaed or sworn as a witness,”

contemplates that the crime of bribery can be completed at any time, such as before

a subpoena is served. Here, a review of the record reveals that Bradford accepted

money in exchange for agreeing not to testify at a grand jury proceeding. In our

view, at that point, the crime of bribery under R.C. 2921.02(D) was complete.

{¶16} Additionally, in our view, subpoenaing or swearing a defendant as a

witness is not a necessary element of bribery under R.C. 2921.02(D). Construing

R.C. 2921.02(D) to require the formality of serving Bradford with a subpoena

before the state could obtain a conviction produces an absurd result. “Furthermore,

‘[w]e must * * * construe statutes to avoid unreasonable or absurd results.’” State

v. Marshall, 4th Dist. No. 09CA13,

, ¶ 54; quoting State ex rel.

Cincinnati Post v. Cincinnati,

,

(1996); see

also State v. Coleman, 4th Dist. No. 00CA010,

, *3 (March 27,

2001) (“A court cannot presume that the legislature intended to enact a law which

produces unreasonable or absurd results. * * * A court must construe the statute so Adams App. No. 11CA928 10

as to avoid such an unreasonable result if the language of the statute fairly

permits.”).

{¶17} Thus, based upon a plain reading of the statute, which is

unambiguous, we find the state’s case was legally adequate to go to a jury in that it

contained prima facie evidence of all of the elements of the charged offense.

Further, after viewing the evidence in a light most favorable to the prosecution, we

conclude that any rational trier of fact could have found the essential elements of

the crime of bribery proven beyond a reasonable doubt. Thus, Appellant’s first

assignment of error is overruled.

ASSIGNMENT OF ERROR II

A. Standard of Review

{¶18} In his second assignment of error, Appellant contends that the trial

court committed plain error when it failed to properly instruct the jury regarding its

deliberations, in violation of Appellant’s Fifth, Sixth, and Fourteenth Amendment

rights under the United States Constitution, and Sections 10 and 16, Article I of the

Ohio Constitution. Appellee responds by arguing that the trial court did not err in

its instructions to the jury, and that Appellant has failed to prove that the jury was

misled by any jury instruction.

{¶19} Under Crim.R. 30(A) “a party may not assign as error the giving or

failure to give any instruction unless the party objects before the jury retires to Adams App. No. 11CA928 11

consider its verdict, stating specifically the matter objected to and the grounds of

the objection.” When a party fails to properly object, then the party waives all but

plain error. See State v. Conway,

,

,

; State v. Underwood,

,

, syllabus

(1983). In the case at bar, it is undisputed that Bradford failed to object to the trial

court’s instruction to the jury regarding bribery. Thus, except for plain error,

Bradford has waived this issue.

{¶20} Plain error exists when the error is plain or obvious and when the

error “affect[s] substantial rights.” Crim.R. 52(B). The error affects substantial

rights when “ ‘but for the error, the outcome of the trial [proceeding] clearly would

have been otherwise.’ ” State v. Litreal,

,

,

; quoting State v. Barnes,

, 2002-Ohio-

68,

. Courts ordinarily should take notice of plain error “with

utmost caution, under exceptional circumstances, and only to prevent a manifest

miscarriage of justice.” State v. Gardner,

,

,

, ¶ 78; State v. Patterson, 4th Dist. No. 05CA16,

. A reviewing court should consider noticing plain error only if the error “ ‘

“seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.” ’ ”

; quoting United States v. Olano,

, Adams App. No. 11CA928 12

, (1993); quoting United States v. Atkinson,

,

, (1936). In the case sub judice, we do not believe that plain error exists.

{¶21} Generally, a trial court has broad discretion to decide how to fashion

jury instructions. The trial court must not, however, fail to “fully and completely

give the jury all instructions which are relevant and necessary for the jury to weigh

the evidence and discharge its duty as the fact finder.” State v. Comen,

,

(1990), paragraph two of the syllabus. Additionally, a

trial court may not omit a requested instruction, if such instruction is “ ‘a correct,

pertinent statement of the law and [is] appropriate to the facts * * *.’ ” State v.

Lessin,

,

(1993); quoting State v. Nelson,

,

(1973), paragraph one of the syllabus.

{¶22} “In examining errors in a jury instruction, a reviewing court must

consider the jury charge as a whole and ‘must determine whether the jury charge

probably misled the jury in a matter materially affecting the complaining party's

substantial rights.’ ” Kokitka v. Ford Motor Co.,

,

(1995), quoting Becker v. Lake Cty. Mem. Hosp. W.,

,

(1990). Whether the jury instructions correctly state the law is a

question of law which we review de novo. State v. Neptune, 4th Dist. No. 99CA25,

(Apr. 21, 2000). Adams App. No. 11CA928 13

B. Legal Analysis

{¶23} In the case sub judice, Appellant specifically argues that the trial court

erred “when it failed to properly instruct the jury regarding its consideration of the

statutory elements of bribery under R.C. 2921.02(D)[,]” and that the trial court’s

“deficient instructions regarding the jury’s duty to consider the statutory elements

of the indicted robbery offense amounted to obvious error which led directly to

[Appellant’s] conviction[.]” The pattern Ohio Jury Instruction for the offense of

bribery reads as follows:

“1. The defendant is charged with bribery. Before you can find the

defendant guilty, you must find beyond a reasonable doubt that on or

about the ________ day of __________, and in ___________ County,

Ohio, the defendant

***

(D) knowingly (solicited) (accepted) for (himself/herself) (another

person) any valuable (thing) (benefit) to corrupt or improperly

influence the defendant with respect to his/her testimony in (describe

official proceeding), either before or after the defendant was

subpoenaed or sworn as a witness.” Adams App. No. 11CA928 14

The instruction goes on to provide or reference definitions for the words

“purposely,” “corrupt,” “public servant,” “party official,” “knowingly,” “solicited,”

“official proceeding,” “conclusion,” and “conclusion with lesser included offense.”

{¶24} A review of the record reveals that the trial court instructed the jury

as follows:

“Now, defendant is charged with – in Count I with Bribery.

Before you can find the defendant guilty of Bribery, you must find

beyond a reasonable doubt that on or about August the 26th, 2010, in

Adams County, Ohio, the defendant, Chad Bradford, either before or

after he is subpoenaed or sworn as a witness, did knowingly solicit or

accept for him, or another person, a valuable thing or val – valuable

be – benefit to corrupt or improperly influence him with respect to his

testimony in an official proceeding.”

The trial court then went to provide definitions for several terms, including

“bribery,” “knowingly,” “solicit,” “corrupt,” “improper,” “influence,” and “official

proceeding.” The trial court defined the term “bribery” as “[t]he corrupt payment,

receipt, or solicitation of a private favor for official action.” This term is not

separately defined in the pattern jury instructions for the offense of bribery.

{¶24} Comparing the two instructions, it is clear that they are not identical.

In particular, the instruction provided by the trial court did not include the phrase Adams App. No. 11CA928 15

“either before or after the defendant was subpoenaed or sworn as a witness.” It is

this omission that Appellant contends was in error, as well as the second definition

of bribery provided to the jury by the trial court. However, “[a]lthough appellant

cites the pattern jury instructions to support his argument, those instructions are not

binding upon this court.” State v. Bundy, -- N.E.2d --,

;

citing State v. Nucklos,

,

,

(stating that the Ohio jury instruction handbook is “a respected and authoritative

source of the law, but it is merely a product of the Ohio Judicial Conference and

not binding on the courts”).

{¶25} Further, in light of our disposition of Appellant’s first assignment of

error, wherein we reasoned that “construing R.C. 2921.02(D) to require the

formality of serving Bradford with a subpoena before the state could obtain a

conviction produces an absurd result,” we conclude that the trial court’s failure to

include the phrase “either before or after the defendant was subpoenaed or sworn

as a witness,” did not affect the outcome of the proceedings. Thus, this omission

does not rise to the level of plain error.

{¶26} Additionally, Appellant argues that the trial court erred in providing

the second definition of bribery, which is not contained in the pattern jury

instruction, and also erred in failing to recap its instruction with the proviso that if

the jury found that the State failed to prove beyond a reasonable doubt any one of Adams App. No. 11CA928 16

the essential elements of the offense, it was required to return a verdict of not

guilty. After reviewing the second definition provided by the trial court, we

conclude that although it was not identical, it was not inconsistent with the

statutory definition of bribery, and thus, would not have been misleading to the

jury. Further, considering the trial court’s initial admonition to the jury that before

it could find the defendant guilty of bribery it must find beyond a reasonable doubt

the elements of the offense, which it then set forth, we find no error, let alone plain

error, in the trial court’s failure to advise the jury that it must return a not guilty

verdict if it concluded that the State failed to prove any of the essential elements of

the offense beyond a reasonable doubt. Thus, having found the arguments raised

under this assignment of error to be without merit, Appellant’s second assignment

of error is overruled.

ASSIGNMENT OF ERROR III

A. Standard of Review

{¶26} In his third assignment of error, Appellant contends that his trial

counsel rendered ineffective assistance of counsel when he failed to object to the

trial court’s erroneous, prejudicial instructions to the jury. Criminal defendants

have a constitutional right to counsel, and this right includes the right to effective

assistance from trial counsel. McMann v. Richardson,

,

(1970); In re C.C., 4th Dist. No. 10CA44,

. To establish Adams App. No. 11CA928 17

ineffective assistance of counsel, a defendant must show (1) his counsel's

performance was deficient, and (2) such deficient performance prejudiced the

defense and deprived him of a fair trial. Strickland v. Washington,

,

(1984); see also State v. Perez,

, 2009-

Ohio-6179,

.

{¶27} Both prongs of the Strickland test need not be analyzed, however, if a

claim can be resolved under one prong. State v. Madrigal,

,

(2000); see also State v. Saultz, 4th Dist. No. 09CA3133, 2011-

Ohio-2018, ¶ 19. In short, if it can be shown that an error, assuming arguendo that

such an error did in fact exist, did not prejudice an appellant, an ineffective

assistance claim can be resolved on that basis alone. To establish the existence of

prejudice, a defendant must demonstrate that a reasonable probability exists that,

but for his counsel's alleged error, the result of the trial would have been different.

See State v. White,

,

(1998); State v. Bradley,

,

, at paragraph three of the syllabus (1989).

B. Legal Analysis

{¶28} Appellant's argument is that counsel was ineffective for the reason

raised under his second assignment of error. However, in light of the fact that we

found no merit to that argument, we do not find any constitutionally ineffective

assistance of counsel. As such, Appellant’s third assignment of error is overruled. Adams App. No. 11CA928 18

{¶29} Accordingly, having considered all of the errors assigned and argued,

and having found merit in none, we hereby affirm the trial court's judgment.

JUDGMENT AFFIRMED.

Kline, J., concurring.

{¶30} I concur in judgment and opinion with the first and third

assignments of error. I respectfully concur in judgment only with the second

assignment of error.

{¶31} Regarding the second assignment of error, the trial court

instructed the jury on the necessary elements of a violation of R.C. 2921.02(D). I

conclude that the definition of the word “bribery” elsewhere in the instructions did

not amount to plain error. In my view, there is overwhelming evidence that the

Appellant committed the crime of bribery in violation of R.C. 2921.02(D).

Therefore, the alleged error did not “affect[] the outcome of the trial.” State v.

Barnes,

,

(2002). Adams App. No. 11CA928 19

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs herein be taxed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Adams County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, J.: Concurs in Judgment and Opinion. Kline, J.: Concurs in Judgment and Opinion as to Assignment of Errors I and III and Concurs in Judgment Only with Opinion as to Assignment of Error II.

For the Court,

By: ________________________________ Matthew W. McFarland Presiding Judge Adams App. No. 11CA928 20

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.