State v. Harris ( 2023 )

[Cite as State v. Harris, 2023-Ohio-2138.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220341
TRIAL NO. 20CRB-23078
Plaintiff-Appellee,
:
vs.
:
MARQUISE HARRIS, O P I N I O N.
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 28, 2023
Emily S. Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and
Amanda Tholke, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michael J. Trapp, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant Marquise Harris appeals his conviction for
improperly handling firearms in a motor vehicle. Harris argues that the state’s
explanation of circumstances at his no-contest plea hearing failed to establish an
element of the offense, warranting a reversal of his conviction. Harris also argues that
the trial court erred when it denied his motion to suppress. We disagree and affirm the
trial court’s judgment.
I. Facts and Procedure
{¶2} While on patrol, members of the Cincinnati Police Department Gun
Crime Task Force spotted what they suspected was marijuana in a Ford Escape parked
in a residential neighborhood in Cincinnati. Harris was across the street. As officers
began to force their way into the Escape, Harris approached. Officers handcuffed
Harris and spotted a gun in his waistband. Harris was arrested and charged with
violating R.C. 2923.16. The complaint alleged:
DURING DRUG INVESTIGATION SUBJECT APPROACHED
OFFICERS ASKING “WHY THEY WERE NEAR HIS CAR.” AS
SUBJECT WAS DETAINED A LOADED GLOCK 26 9MM PISTOL WAS
IN SUBJECT’S FRONT RIGHT PANTPOCKET. HANDLE IN PLAIN
SIGHT. SUBJECT DID NOT NOTIFY LEO’S OF CCW.
{¶3} Harris moved to suppress the firearm, arguing that the search and
seizure violated his rights under the Fourth Amendment to the United States
Constitution and Article I, Section 14 of the Ohio Constitution. Specifically, he
maintained that the officers lacked reasonable suspicion to conduct a Terry stop.
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Suppression Hearing
{¶4} At the suppression hearing, Officer Joshua Condon identified himself as
a member of the Gun Crime Task Force, which was patrolling the area because of its
reputation of “high level of gun crime [and] drug transactions,” and because “drug
transactions go hand in hand with gun crimes.” Condon explained that officers spotted
marijuana in the Escape, which was “still illegal” in Cincinnati, and officers were
instructed to destroy any contraband and provide a written warning. After “two to five
minutes,” Condon used his commercially sold “lockout kit” to break into the Escape.
According to Condon, Harris approached the officers surrounding the Escape,
claiming ownership, and remarked that the officers had no right to search the Escape.
{¶5} Officers detained Harris. Condon recalled that Harris complied with
orders to place his hands behind his back, and while he was being handcuffed “another
officer alerted me to the gun” before Harris informed officers “he was a CCW holder.”
{¶6} At a later hearing, the trial court denied the motion to suppress, finding
that officers had probable cause to detain Harris. Specifically, Condon “observed what
he believed to be marijuana inside a motor vehicle” and as officers surrounded the
truck, Harris approached. The trial court continued, explaining that “[w]hile no
marijuana was seized – this happened in the city of Cincinnati, Hamilton County, State
of Ohio – Officer Condon noticed the defendant had a firearm in his waistband.”
Plea Hearing
{¶7} Initially, Harris pleaded guilty to the complaint as charged. The
following day, he withdrew that guilty plea and entered a no-contest plea. Harris
informed the trial court that he would “stipulate to the facts in the record and in the
complaint.” The trial court accepted his plea and sentenced Harris.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} But following an off-the-record discussion, the parties returned to the
courtroom and the state explained that in 2020, Harris
did knowingly fail to inform law enforcement officers of his CCW
permit, contrary to and in violation of Section 2923.16 of the Ohio
Revised Code, a misdemeanor in the first degree, when during a drug
investigation he was approached by officers, and as a subject he was
detained, and a loaded Glock 26 nine millimeter was in the subject’s
front right pocket.
{¶9} Harris’s attorney responded:
Waive further reading, stipulate to what’s been read in the record, Your
Honor. We’ll waive any defects with respect to the sentencing that had
gone forward, Judge. We understand we wanted to cure any issues, and
we would stipulate to the facts that have been read into the record and
are appropriate, Judge.
{¶10} Once again, the trial court found Harris guilty of a violation of R.C.
2923.16(E)(1). On appeal, Harris raises two assignments of error.
II. Law and Analysis
Harris Invited The Error
{¶11} We begin with Harris’s first assignment of error, where he challenges
the trial court’s finding of guilt because his no-contest plea failed to admit to facts that
would establish the elements of a violation of R.C. 2923.16(E)(1).
{¶12} A no-contest plea “is not an admission of defendant’s guilt, but is an
admission of the truth of the facts alleged in the indictment, information, or
complaint.” Crim.R. 11(B)(2); see R.C. 2937.07. After accepting a no-contest plea for a
misdemeanor offense, a trial court “may make a finding of guilty or not guilty from the
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OHIO FIRST DISTRICT COURT OF APPEALS
explanation of the circumstances of the offense.” R.C. 2937.07. The explanation-of-
circumstances requirement is designed “ ‘to ensure that the trial court does not make
a finding of guilty in a perfunctory fashion.’ ” State v. Haskamp, 12th Dist. Clermont
No. CA2019-04-033, 2020-Ohio-419, ¶ 13, quoting State v. Cox, 12th Dist. Madison
No. CA2001-01-003, 2001 Ohio App. LEXIS 4277, 2-3 (Sept. 24, 2001), citing
Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148, 151, 459 N.E.2d 532 (1984).
{¶13} But the facts to which a defendant admits must establish the elements
of the offense. In other words, “the explanation of circumstances must contain
sufficient information to support all of the essential elements of the offense.” State v.
Robinson, 1st Dist. Hamilton No. C-170473, 2018-Ohio-1797, ¶ 3, citing Bowers at 150.
Further, “ ‘a no contest plea may not be the basis for a finding of guilty without an
explanation of circumstances.’ ” Haskamp at ¶ 12. Indeed, the explanation of
circumstances provides a degree of protection for the defendant “even though he has
admitted to the allegations of the complaint.” City of Girard v. Giordano, 155 Ohio
St.3d 470, 2018-Ohio-5024, 122 N.E.3d 151, ¶ 18.
{¶14} At issue is a violation of R.C. 2923.16(E)(1), which provides,
No person who has been issued a concealed handgun license * * * [and
is carrying] documentation of a successful completion of firearms
training as described in [R.C. 2923.125 (G)(1)], who is the driver or an
occupant of a motor vehicle that is stopped as a result of a traffic stop or
a stop for another law enforcement purpose * * * and who is
transporting or has a loaded handgun in the motor vehicle or
commercial motor vehicle in any manner, shall do any of the following:
(1) Before or at the time a law enforcement officer asks if the person is
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OHIO FIRST DISTRICT COURT OF APPEALS
carrying a concealed handgun, knowingly fail to disclose that the person
then possesses or has a loaded handgun in the motor vehicle.
{¶15} We agree that the state’s explanation of circumstances fails to establish
that Harris was a driver or occupant of the Escape, or that he had a loaded handgun in
the truck. And we agree, as Harris argues, that the facts in the complaint fail to
establish that he was the driver or occupant of a motor vehicle stopped by law
enforcement, that the firearm was in the motor vehicle, or that he failed to disclose to
the officers that the firearm was in the motor vehicle.
{¶16} But we also agree with the state’s argument that the invited-error
doctrine precludes Harris from “ ‘tak[ing] advantage of an error which he himself
invited or induced the court to make.’ ” State v. Arnold, 2017-Ohio-326, 72 N.E.3d 715,
¶ 12 (3d Dist.), quoting State v. Ritch, 4th Dist. Scioto No. 97CA2491, 1998 Ohio App.
LEXIS 2193, 4 (May 11, 1998), citing State ex rel. O’Beirne v. Geauga Cty. Bd. of
Elections, 80 Ohio St.3d 176, 181, 685 N.E.2d 502 (1997), and State ex rel. Bitter v.
Missig, 72 Ohio St.3d 249, 254, 648 N.E.2d 1355 (1995). Here, Harris did more than
waive the reading of the explanation of circumstances. He informed the trial court that
Harris “wanted to cure any issues” and stipulated “to the facts that have been read into
the record [] are appropriate.” Consequently, Harris invited the error.
{¶17} We overrule Harris’s first assignment of error.
The Investigatory Stop Was Constitutional
{¶18} In his second assignment of error, Harris maintains that the trial court
erred when it denied his motion to suppress the firearm evidence seized by the police.
First, Harris argues that the officers lacked probable cause to arrest Harris when they
handcuffed him. Second, Harris contends that the officers lacked facts to support an
investigatory stop.
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{¶19} A trial court’s ruling on a motion to suppress presents a mixed question
of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. We must accept the trial court’s factual findings as true if they are supported
by competent, credible evidence. Id., citing State v. Fanning, 1 Ohio St.3d 19, 437
N.E.2d 583 (1982). But we review the trial court’s legal findings de novo. Id. (“the
appellate court must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal standard.”).
{¶20} The Ohio and United States Constitutions protect the rights of people to
be free from unreasonable searches and seizures. See Fourteenth Amendment to the
United States Constitution and Article I, Section 14, Ohio Constitution. The rights of
Ohioans to be free from unreasonable searches and seizures under the Ohio
Constitution are interpreted as having “at least the same protection [under] the Fourth
Amendment.” State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 13.
{¶21} To make a warrantless arrest, an officer must have probable cause to do
so. State v. Jordan, 166 Ohio St.3d 339, 2021-Ohio-3922, 185 N.E.3d 1051, ¶ 19, citing
Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964);United States v.
Watson, 423 U.S. 411, 415, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Probable cause is a
nontechnical concept, “ ‘defined in terms of facts and circumstances “sufficient to
warrant a prudent [person] in believing that the [suspect] had committed or was
committing an offense.” ’ ” Jordan at ¶ 19, quoting Beck at 96, quoting Carroll v.
United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543, T.D. 3686 (1925).
{¶22} But officers may temporarily detain a person during a brief
investigative stop if “the officer has reasonable, articulable suspicion that the person
has been, is, or is about to be engaged in criminal activity.” State v. Hawkins, 158 Ohio
St.3d 94, 2019-Ohio-4210, 140 N.E.3d 577, ¶ 19, quoting United States v. Place, 462
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OHIO FIRST DISTRICT COURT OF APPEALS
U.S. 696, 702, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); see Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968). Reasonable suspicion is a “less demanding”
standard. State v. Houston, 1st Dist. Hamilton No. C-190598, 2020-Ohio-5421, ¶ 57.
To find that an officer has reasonable suspicion, there must be a “ ‘particularized and
objective basis’ for suspecting the person stopped of criminal activity.” Id., quoting
United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).
When assessing reasonable suspicion, “ ‘the totality of circumstances’ must be
considered and ‘viewed through the eyes of the reasonable and prudent police officer
on the scene who must react to events as they unfold.’ ” Hawkins at ¶ 21, quoting State
v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991).
{¶23} Here, the trial court found that Condon “observed what he believed to
be marijuana” inside the Escape before Harris approached the officers and claimed
ownership of the truck. Condon testified that Harris was detained as part of the
investigation into the marijuana in the truck. Further, Condon testified that “there was
an unknown amount, total, of marijuana in that vehicle.”
{¶24} Under Cincinnati Municipal Code 910-23(A), “[n]o person aged
eighteen or over shall knowingly obtain, possess, or use marijuana in an amount less
than one hundred grams.” Though “[w]hover violates this section is guilty of
possession of marijuana, a minor misdemeanor,” a person who violates Cincinnati
Municipal Code 910-23 “shall be fined $0.00, provided that any such use of marijuana
did not occur in a public place.”
{¶25} While Harris contends that possession of marijuana is not an arrestable
offense under current policy of the Cincinnati Police Department, Condon’s testimony
established that officers had reasonable suspicion to believe that Harris had violated
Cincinnati Municipal Code 910-23. And in the process of detaining Harris, the firearm
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OHIO FIRST DISTRICT COURT OF APPEALS
was spotted in plain view. See State v. Gies, 2019-Ohio-4249, 146 N.E.3d 1277, ¶ 10
(1st Dist.).
{¶26} In sum, officers possessed reasonable suspicion to detain Harris and the
trial court properly denied the motion to suppress. The second assignment of error is
overruled.
III. Conclusion
{¶27} We overrule Harris’s two assignments of error and affirm the
conviction.
Judgment affirmed.
BERGERON, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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