State v. Harris

[Cite as State v. Harris, 

.]



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


 STATE OF OHIO,                             :   APPEAL NO.    C-240266
                                                TRIAL NOS.    C/23/CRB/19513B
       Plaintiff-Appellee,                  :                 C/23/CRB/19513C

    vs.                                     :

 BRIAN HARRIS,                              :         OPINION

       Defendant-Appellant.                 :



Criminal Appeal From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: February 12, 2025



Connie M. Pillich, Hamilton County Prosecuting Attorney, and John D. Hill, Jr.,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

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


CROUSE, Judge.

       {¶1}   Defendant-appellant Brian Harris appeals from the trial court’s

judgments convicting him, following a jury trial, of obstructing official business and

resisting arrest. In three assignments of error, Harris argues that his convictions were

not supported by sufficient evidence and were against the manifest weight of the

evidence, that the trial court’s unnecessary delay in charging the jury violated R.C.

2945.10, and that the trial court erred in communicating with the jury outside of

Harris’s presence.

       {¶2} Following our review of the record, we hold that (1) Harris’s convictions

were supported by sufficient evidence and were not against the manifest weight of the

evidence, (2) the trial court delayed in charging the jury in violation of R.C. 2945.10,

but Harris suffered no material prejudice as a result thereof, and (3) the record does

not affirmatively demonstrate that Harris was not present for the trial court’s

communication with the jury. We accordingly overrule Harris’s assignments of error

and affirm the trial court’s judgments.

                     I.   Factual and Procedural History

       {¶3} Complaints were filed in the Hamilton County Municipal Court

charging Harris with criminal trespass, obstructing official business, and resisting

arrest. All three charges concerned an incident that occurred at the Mi Cozumel

restaurant in Springfield Township on November 9, 2023.

       {¶4} The evidence presented at trial established that Springfield Township

Police Sergeant DeShawn Brooks received a call from an off-duty officer who was at

Mi Cozumel. The off-duty officer reported that a patron of the restaurant was refusing

to leave. At the time Sergeant Brooks received the call, he was passing by the

restaurant in his car. He immediately pulled into the restaurant’s parking lot and


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                  OHIO FIRST DISTRICT COURT OF APPEALS


radioed for assistance. When Sergeant Brooks entered the restaurant, Harris was

standing with a restaurant employee near the entrance. According to both Sergeant

Brooks and Springfield Township Police Officer Bradley Williams, who had responded

to Sergeant Brooks’s call for assistance, Harris exhibited a “death stare” towards both

the restaurant employee and the responding officers.

        {¶5} Harris’s hands were in his pockets, and he refused to remove them when

requested to do so by the officers. He also refused to respond to any questions asked

of him. Given Harris’s demeanor, including his glare and his refusal to speak or to

remove his hands from his pockets, which the officers’ testimony established was a

location where a weapon would normally be stored, the officers suspected that Harris

may have been armed. Sergeant Brooks informed Harris that he was going to pat

Harris down for weapons. He moved in to do so, with assistance from Officer Williams

and Springfield Township Police Officer Johnson, who had also responded to the

scene. As soon as the officers touched Harris, he began to physically resist and pull

away.

        {¶6} During the scuffle, Officer Johnson’s glasses were knocked off, Officer

Williams was elbowed in the face, and a magazine for Officer Williams’s weapon was

knocked loose from the pouch in which it had been stored. After a brief struggle, the

officers were able to place handcuffs on Harris. Harris continued to struggle as the

officers walked him outside to a police cruiser and attempted to place him inside.

Harris twisted and jerked wildly and braced both of his feet on either side of the

cruiser’s door.

        {¶7}   Testimony was elicited from Sergeant Brooks on both cross-

examination and redirect examination regarding the timing of this incident as




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                   OHIO FIRST DISTRICT COURT OF APPEALS


reflected in the CAD1 report. Sergeant Brooks explained that a CAD report is initiated

when a 911 call is placed. In this case, the initial call he received from the off-duty

officer at Mi Cozumel did not trigger the report. Rather, Sergeant Brooks testified that

the report was initiated when he placed the call for assistance. While the CAD report

was never admitted into evidence, Sergeant Brooks agreed with defense counsel that

the report reflected that the incident began at 20:39 and that Harris was taken into

custody at 20:40. No further testimony or evidence was elicited as to whether the

timing as reflected in the CAD report was accurate.

          {¶8} During the jury’s deliberations, it asked to view the CAD report, but was

told that the report had not been entered into evidence. The jury subsequently

returned verdicts finding Harris guilty of obstructing official business and resisting

arrest but not guilty of criminal trespass. For each offense, the trial court sentenced

Harris to one day in jail, while crediting him with one day for time served. The trial

court also remitted fines and costs. Harris now appeals.

                 II.    Sufficiency and Weight of the Evidence

          {¶9} In his first assignment of error, Harris argues that his convictions for

obstructing official business and resisting arrest were not supported by sufficient

evidence and were against the manifest weight of the evidence.

          {¶10} In reviewing 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.” (Cleaned up.) State v. Walker, 

. In

contrast, when this court reviews a challenge to the manifest weight of the evidence, it



1 CAD stands for Computer Aided Dispatch. See State v. Harrison, 

 (1st

Dist.).


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                  OHIO FIRST DISTRICT COURT OF APPEALS


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.),

citing State v. Thompkins, 

.

       {¶11} We first address the sufficiency of the evidence supporting Harris’s

conviction for obstructing official business. Harris was found guilty of obstructing

official business in violation of R.C. 2921.31(A). To support a conviction under this

statute, the State had to prove that Harris “‘(1) performed an act; (2) without privilege;

(3) with purpose to prevent, obstruct, or delay the performance of a public official of

any authorized act within the public official’s official capacity; and (4) that hampered

or impeded the performance of the public official’s duties.’” State v. Buttram, 2020-

Ohio-2709, ¶ 10 (1st Dist.), quoting In re Payne, 

 (1st Dist.).

       {¶12} Harris’s challenges to the sufficiency of the evidence concern the second

and third elements that the State was required to prove. He argues that the State failed

to prove both that he acted without privilege and that the officers were engaged in an

authorized act when they attempted to pat him down for weapons. He contends that

the officers lacked a reasonable suspicion that he was armed and had no authority to

conduct a pat-down search of his person. As a result of this lack of authority, he

contends, his resistance to the illegal search was privileged. Harris makes no argument

with respect to the remaining elements necessary to establish the offense of

obstructing official business—he does not challenge the fact that he “performed an act”

or that his actions hampered or impeded the officers in the execution of their public

duties. See 

       {¶13} Where an officer is justified in a belief or has a reasonable suspicion

“that an individual may be ‘armed and presently dangerous,’” the officer may conduct


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                   OHIO FIRST DISTRICT COURT OF APPEALS


a “limited protective search” for a concealed weapon. State v. Hairston, 2019-Ohio-

1622, ¶ 9, quoting Terry v. Ohio, 

 (1968); State v. Henson, 2022-Ohio-

1571, ¶ 15 (1st Dist.).2 A determination as to whether an officer had reasonable

suspicion to conduct such a limited search “must be based on the totality of

circumstances ‘viewed through the eyes of the reasonable and prudent police officer

on the scene who must react to events as they unfold.’” Hairston at ¶ 10, quoting State

v. Andrews, 

 (1991). “Officers are entitled to draw on their own

experiences and specialized training to make inferences from and deductions about

the presenting information.” State v. Rogers, 

 (1st Dist.).

        {¶14} Here, Sergeant Brooks responded to the restaurant after receiving a call

that a patron would not leave. Harris looked at the officers and at the restaurant

employee with a “death stare,” would not answer questions, and refused to remove his

hands from his pockets when asked to do so. Testimony established that Harris’s

refusal to remove his hands from his pockets was particularly concerning because

pockets are a common place for a weapon to be stored. The officers were entitled,

based on their training and experience, to infer from Harris’s refusal to remove his

hands from his pockets that he may have been armed. See State v. Britton, 

, *6-7 (8th Dist. Apr. 25, 1991), quoting State v. Bobo, 

 (1988), paragraph two of the syllabus (“the refusal of the appellant to completely

withdraw his hands from his jacket pockets warranted a belief that the appellant was



2 Such limited   protective searches may occur after an individual has been seized for a “brief
investigative stop” based upon “reasonable suspicion . . . that criminal behavior has occurred or is
imminent.” Hairston at ¶ 9. This is so, even if “the stop and the pat-down search occur[]
simultaneously.” Henson at ¶ 18. Here, however, Harris argues only that the officer lacked
reasonable articulable suspicion to believe Harris was armed and so could not justify his search.
Harris does not challenge, and we do not address, whether the officer also had reasonable suspicion
of imminent or contemporaneous criminal conduct that would justify the brief, investigative
seizure.


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                    OHIO FIRST DISTRICT COURT OF APPEALS


armed and dangerous thus necessitating the limited ‘protective search’ of the

appellant”); compare State v. Showes, 

 (1st Dist.) (declining to

give any weight to the fact that defendant’s hands were in his pocket where there was

no testimony that the officer’s “experience and training led him to believe that one’s

hands in the pockets is indicative of the presence of a weapon” or that the defendant

was asked to remove his hands).

           {¶15} Under the totality of these circumstances, the officers had a reasonable

suspicion that Harris may have possessed a weapon and were justified in conducting

a pat-down search. See Hairston, 

. Thus, their actions were

authorized. Further, the only privilege Harris asserts is the privilege to resist an

unlawful search. However, because the officers were legally and constitutionally

authorized to pat Harris down, Harris’s acts of resistance and refusal to cooperate

could not have been privileged on that basis.

           {¶16} The evidence presented at trial established that when the officers

attempted to conduct a pat-down search of Harris, he refused to comply. Harris,

without privilege to do so, physically resisted and moved his body to prevent the

officers from conducting the pat down. As he resisted, he elbowed Officer Williams in

the face and impeded the officers from carrying out their search. Viewed in the light

most favorable to the State, this evidence was sufficient to prove the elements of

obstructing official business beyond a reasonable doubt. See Walker, 

.

           {¶17} Harris was also found guilty of resisting arrest in violation of R.C.

2921.33(A), which provides that “[n]o person, recklessly or by force, shall resist or

interfere with a lawful arrest of the person or another.” Harris argues that his

conviction for resisting arrest was not supported by sufficient evidence because he had


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                 OHIO FIRST DISTRICT COURT OF APPEALS


not committed the offense of obstructing official business, and the arrest was not

lawful. Harris’s contention relies on his argument, which we have already rejected,

that the officers lacked a reasonable suspicion to conduct a pat-down search.

       {¶18} “A lawful arrest is that which is supported by probable cause or a

reasonable belief that the offense in question occurred.” State v. Cooper, 2024-Ohio-

3081, ¶ 17 (1st Dist.). As established, the officers had a reasonable suspicion that Harris

was armed and were justified in conducting a limited pat-down search. When Harris

struggled with the officers and attempted to evade the search, he committed the

offense of obstructing official business. Accordingly, the officers had a reasonable

belief that the offense of obstructing official business had occurred, and Harris’s arrest

for that offense was lawful.

       {¶19} The State also presented sufficient evidence that Harris interfered with

that lawful arrest. The evidence presented at trial established that Harris struggled

with the officers as they walked him out of the restaurant, and that he placed both feet

on either side of the door to a police cruiser to prevent himself from being placed

inside. Viewed in the light most favorable to the State, this evidence was sufficient to

prove the offense of resisting arrest beyond a reasonable doubt. See Walker, 2016-

Ohio-8295, at ¶ 12.

       {¶20} We further hold that Harris’s convictions for obstructing official

business and resisting arrest were not against the manifest weight of the evidence. As

the trier of fact, the jury was in the best position to judge the credibility of the

witnesses. State v. Shepard, 

 (1st Dist.); State v. DeHass, 

 (1967), paragraph one of the syllabus. It was entitled to believe the officers’

testimony that they feared Harris may have been armed and that it was necessary to

conduct a pat-down search, as well to believe the officers’ description of Harris’s


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                  OHIO FIRST DISTRICT COURT OF APPEALS


behavior in response to that search and to being placed in the police cruiser. This was

not the rare case in which the jury lost its way and committed a manifest miscarriage

of justice in finding Harris guilty. See Powell, 

 (1st Dist.).

       {¶21} The first assignment of error is accordingly overruled.

         III.    Order and Timing of Proceedings (R.C. 2945.10)

       {¶22} In his second assignment of error Harris argues that the trial court

engaged in an unnecessary delay when charging the jury in violation of R.C. 2945.10.

       {¶23} R.C. 2945.10(G) provides in relevant part that “[t]he court, after the

argument is concluded and before proceeding with other business, shall forthwith

charge the jury.” Harris argues that the trial court’s delay in charging the jury after

closing arguments concluded violated this provision. Specifically, Harris argues that

the closing arguments concluded on Tuesday, April 9, 2024, at approximately 2:43

p.m., but that the jury did not return to court to receive final instructions until

Thursday, April 11, 2024.

       {¶24} As Harris asserts, closing arguments in this case concluded on the

afternoon of April 9, 2024. After closing arguments, the trial court made the following

statements to the jury:

                Okay. So we are now done with everything that is going to be

       given to you to consider. We do have some jury instructions to read, and

       so we can come back tomorrow morning early again or we can come

       back on Thursday.

                If we come in tomorrow it will need to be, again, by 8:15, because

       I have my docket, and I have 30 some cases that are already scheduled.

       I would do those after I read the jury instructions which should take me

       no more than half an hour to read.


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                   OHIO FIRST DISTRICT COURT OF APPEALS


               And then you—while I do my docket you all could deliberate. And

       if you come to a verdict then I would stop the docket. If not, you would

       just go on the whole day until you have either reached a verdict or you

       will decide when to come back.

               Tomorrow I will—if there is not a verdict by 11, we would not

       come back until like 2:00. But I’m willing to come back, but I just want

       everyone to be clear kind of on that timeline. So I will leave it up to you.

       I’ll be here. But I don’t know if you all want to come in early again

       tomorrow or if you would prefer Thursday and come in at like 10:00.

The jury elected to return to court for instructions on Thursday, April 11, 2024, and

thus approximately a day and a half passed between the conclusion of closing

arguments and the instructions being provided to the jury. And based on the trial

court’s comments, it appears that the court conducted its regular docket on the

intervening day.

       {¶25} Harris concedes that he failed to object below to the trial court’s delay

in charging the jury and that we are limited to reviewing the trial court’s actions for

plain error. See State v. Flantoill, 

 (1st Dist.). “An alleged error

does not rise to the level of plain error unless, but for the error, the outcome of the trial

would have been otherwise.” State v. Truesdell, 

 (1st Dist.).

       {¶26} Harris argues that he was prejudiced by the trial court’s violation of R.C.

2945.10 because the trial court failed to admonish the jury not to form an opinion on

the case before releasing it for the day after closing arguments. Harris’s argument is

belied by the record, which demonstrates that the trial court did, in fact, provide an

admonishment to the jury. After the jurors elected to return on Thursday, April 11, the

State asked the court to let the jurors know that they could not discuss the case until


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                    OHIO FIRST DISTRICT COURT OF APPEALS


they were charged. The trial court then told the jury, “So even though you have heard

all of the testimony, until you hear the instructions about how you are going to go

about deliberating about that testimony you should not talk about the case amongst

each other or with anyone else or discuss anything. The same thing with the

attorneys.”3

        {¶27} The record contains no indication that the jury did not follow this

admonishment, the provision of which negates Harris’s argument that he suffered

prejudice. See State v. Bowling, 

, *19-20 (12th Dist. Nov.

22, 1999) (“In determining whether the defendant suffered a material prejudice from

a delay in charging the jury, whether the trial court admonished the jury to separate

and to not form an opinion until after the case is submitted to the jury will carry great

weight.”).

        {¶28} Harris further argues that the jury’s request during deliberations to see

the CAD report demonstrates that “[d]uring the delay, the jury assumed the report

would be available and presumably had greater difficulty remembering” the testimony

offered regarding the CAD report. He contends that he was prejudiced by the jury’s

failure to verify a fact favorable to the defense. But this argument is nothing more than

speculation. A request for the report does not mean that the jury was unable to recall

related testimony, particularly where there is no affirmative evidence in the record

demonstrating that the report was requested due to a collective lack of memory on the

part of the jury.


3 We recognize that this admonishment was not complete. R.C. 2945.34 provides that if the jury

separates during trial, the court shall admonish it “not to converse with, nor permit themselves to
be addressed by any person, nor to listen to any conversation on the subject of the trial, nor form
or express any opinion thereon, until the case is finally submitted to them.” See State v. Helm,

 (1st Dist.) (discussing R.C. 2945.34 and explaining that although the trial
court failed to give the complete admonishment set forth in that statute to the jury, the record
contained no evidence of jury misconduct).


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                  OHIO FIRST DISTRICT COURT OF APPEALS


       {¶29} We hold that Harris failed to establish that the outcome of the

proceedings would have been different but for the trial court’s delay in charging the

jury. The second assignment of error is overruled.

               IV.     Trial Court’s Communication with Jury

       {¶30} In his third assignment of error, Harris argues that the trial court erred

by communicating with the jury outside of his presence. His argument concerns the

question asked by the jury during deliberations about the CAD report.

       {¶31} The record, specifically the transcript of the proceedings provided for

our review, establishes that after the jury left the courtroom to begin deliberations, the

trial court instructed counsel to make sure that courtroom personnel had counsel’s cell

phone numbers and asked them to “stay within ten minutes of coming back in case

[the jury has] any questions or a verdict.” A recess was then taken. The next statement

in the transcript is the trial court’s explanation that “[t]he jury came and asked for

something that we don’t have. They asked for the CAD report. It’s not in evidence, so

I just said it’s not in evidence, we don’t have it, so that’s it.”

       {¶32} Harris argues that the trial court not only answered the jury’s question

outside of his presence, but also provided the summary of its communication with the

jury on the record outside of his presence. He contends that this was in violation of his

right to be present at all stages of the proceedings.

       {¶33} The law is clear that a criminal defendant has the right to be present at

every stage of the trial. State v. Kelley, 

 (1st Dist.). “As a general

rule, any communication with the jury outside the presence of the defendant or parties

to a case by either the judge or court personnel is error which may warrant the ordering

of a new trial.” State v. Schiebel, 

 (1990); accord 

. An

ex parte communication between the court and the jury does not “create a conclusive


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                 OHIO FIRST DISTRICT COURT OF APPEALS


presumption of prejudice.” 

. Rather, “[t]he communication must have

been of a substantive nature and in some way prejudicial to the party complaining.”

 A communication will be considered substantive where it “‘address[es] any legal

issues, any fact in controversy, any law applicable to the case, or some similar matter.’”

(Bracketed text in original.) 

, quoting State v. DiPietro, 

,

¶ 17 (10th Dist.).

       {¶34} Following our review of the record, we are constrained to find Harris’s

argument to be without merit because the record does not affirmatively demonstrate

that he was not present for the trial court’s communication with the jury. We can

definitively ascertain from the record that, off the record, the jury requested the CAD

report and the trial court informed the jury that the report was not in evidence. But

the record does not reflect who was present in court when this exchange occurred.

Harris may not have been present when the trial court answered the jury’s question.

But, alternatively, Harris may have been present and the exchange simply was not

recorded.

       {¶35} Because the record does not establish the error of which Harris

complains, we overrule the third assignment of error. The judgments of the trial court

are accordingly affirmed.

                                                                   Judgments affirmed.

KINSLEY, P.J., and BOCK, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.




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