State v. Harris ( 2023 )

[Cite as State v. Harris, 2023-Ohio-4387.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230074
TRIAL NOS. 22CRB-18454A, B, C, D
Plaintiff-Appellee, :
vs. : O P I N I O N.
JOHN HARRIS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: December 6, 2023
Emily Smart Woerner, City Solicitor, William T. Horsely, Chief Prosecuting Attorney,
and Ashton Tucker, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
W INKLER , Judge.
{¶1} Defendant-appellant John Harris appeals his convictions for
aggravated menacing, obstruction of official business, being in the park after hours,
and criminal trespass. Harris raises one assignment of error that argues his various
convictions were based on insufficient evidence and against the manifest weight of the
evidence. For the following reasons, we affirm the judgments of the municipal court.
Background
{¶2} Around 4:45 a.m. on October 25, 2022, Harris was in Washington Park
warming his hands from a lit heater stored by the gazebo in the center of the park.
Washington Park is a public park owned by the Cincinnati Park Board and is open
from 6:00 a.m. to 11:00 p.m. The park is managed by the Cincinnati City Center
Development Corporation (“3CDC”). A 3CDC employee saw Harris at the gazebo and
called the police to have Harris removed from the park.
{¶3} Cincinnati Police Officer Chris Vogelpohl was on detail for 3CDC that
night to patrol parking lots managed by 3CDC. Officer Vogelpohl was dispatched and
approached Harris, who was standing by the gazebo with his hands above the lit fire
of a patio heater. Officer Vogelpohl asked to see Harris’s identification, but Harris
refused to produce it. Instead, Harris gathered his bags and started walking away from
Officer Vogelpohl.
{¶4} This was not the first time that Harris and Officer Vogelpohl interacted.
It is unclear from the record what transpired in those previous encounters, but the
record indicates that Officer Vogelpohl had encountered Harris three times previously
and each time, demanded Harris’s identification. The record indicates Harris
produced his identification each time but exchanged heated words with Officer
2
OHIO FIRST DISTRICT COURT OF APPEALS
Vogelpohl. Officer Vogelpohl did not charge or ticket Harris in any of these
encounters.
{¶5} As Harris gathered his belongings and took his first steps away from
Officer Vogelpohl, the officer said, “Sir, I’m going to give you a ticket for being in the
park after hours.” Harris began arguing with Officer Vogelpohl while continuing to
walk away from him. Harris argued that he was allowed to walk through the park and
denied lighting the heater.
{¶6} After Harris left Washington Park and crossed the street, he yelled to
Officer Vogelpohl that Harris “would blow [Officer Vogelpohl’s] brains out.” Harris
then continued down the street while carrying two bags, with one in each hand. Officer
Vogelpohl followed Harris, asking him to repeat the statement. Harris eventually
stopped and dropped the bag held in his right hand and reached for the bag held in his
left hand. Officer Vogelpohl drew his firearm in response. Harris did not take
anything out of either bag, but walked down the street, leaving one bag behind. Officer
Vogelpohl followed Harris and called for backup. Harris turned around the block and
went down an alley.
{¶7} A police cruiser pulled down the alley in front of Harris to block him.
Officer Vogelpohl ordered Harris to stop. Harris ran around the police cruiser and
down the alley, heading back to Washington Park. Officer Vogelpohl and the police
cruiser chased Harris and caught up with him at the same corner where Harris yelled
that he would blow Officer Vogelpohl’s brains out. Officer Vogelpohl arrested Harris.
{¶8} Harris was charged with four offenses: aggravated menacing in
violation of R.C. 2903.21, obstruction of official business in violation of R.C. 2921.31,
being in the park after hours in violation of Cincinnati Park Board Rule 21
3
OHIO FIRST DISTRICT COURT OF APPEALS
(“Park Rule 21”), and criminal trespass in violation of R.C. 2911.21(A)(1). Harris was
tried in municipal court by a jury on the aggravated-menacing, obstruction, and
trespass counts, and tried to the bench on the count of being in the park after hours.
{¶9} Officer Vogelpohl testified to the events on that night and walked the
jury through the recording on his body-worn camera. Officer Vogelpohl testified at
first that he “didn’t like” Harris saying that he would blow his brains out. On redirect
examination, Officer Vogelpohl testified that Harris’s statement made him feel afraid
and explained how his training as a police officer limited how his fear showed on his
body-worn camera recording.
{¶10} Harris took the stand in his own defense and testified that he walked
away from Officer Vogelpohl and did not produce his identification because he had
done so on previous occasions.
{¶11} After trial, the jury found Harris guilty on the aggravated-menacing,
obstruction-of-official-business, and criminal-trespass charges. Harris was convicted
by the court on the charge of being in the park after hours. Harris now timely appeals
all four convictions.
Law and Analysis
{¶12} Harris raises a sole assignment of error, arguing his four convictions
were based on insufficient evidence and were contrary to the manifest weight of the
evidence. Though Harris raises both challenges together in the sole assignment of
error depending on the conviction, “a challenge to the sufficiency of the evidence
differs from a challenge to the manifest weight of the evidence.” State v. McKnight,
107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 69.
4
OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} Broken down for each conviction, Harris argues (1) his conviction for
aggravated menacing was contrary to the manifest weight of the evidence, (2) his
conviction for obstructing official business was not supported by sufficient evidence
and was contrary to the manifest weight of the evidence, and (3) his convictions for
criminal trespass and being in the park after hours were not supported by sufficient
evidence and were contrary to the manifest weight of the evidence. For organizational
clarity, we address Harris’s arguments in the order he made them.
I. Standard of Review
{¶14} A challenge to the sufficiency of the evidence supporting a conviction
requires a court to determine whether the state has met its burden of production at
trial. State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997) (Cook, J.,
concurring). It is a question of law that we review de novo. State v. Ellison,
178 Ohio App.3d 734, 2008-Ohio-5282, 900 N.E.2d 228, ¶ 9 (1st Dist.), citing
Thompkins at 386 (Cook, J., concurring). A challenge to the sufficiency of the evidence
requires a court to review the evidence in a light most favorable to the prosecution to
determine whether a rational trier of fact could have found that all essential elements
of a crime were proved beyond a reasonable doubt. State v. Sims, 1st Dist. Hamilton
Nos. C-150252 and C-150253, 2015-Ohio-4996, ¶ 7. In deciding whether the evidence
is sufficient, an appellate court does not “resolve evidentiary conflicts nor assess the
credibility of the witnesses.” State v. Thomas, 1st Dist. Hamilton No. C-120561,
2013-Ohio-5386, ¶ 45.
{¶15} In contrast to a challenge to the sufficiency of evidence, in deciding
whether a conviction is against the manifest weight of the evidence, an appellate court
determines whether the state has appropriately carried its burden of persuasion.
5
OHIO FIRST DISTRICT COURT OF APPEALS
Thompkins at 390 (Cook, J., concurring). When reviewing a challenge to the manifest
weight of evidence, an appellate court sits as the “thirteenth juror” and “review[s] the
entire record, weigh[s] the evidence, consider[s] the credibility of the witnesses, and
determine[s] whether the trier of fact clearly lost its way and created a manifest
miscarriage of justice.” Sims at ¶ 7, citing Thompkins at 387 (Cook, J., concurring).
An appellate court may substitute its judgement for that of the trier of fact on the issue
of witness credibility when “it is patently apparent that the trier of fact lost its way in
arriving at its verdict.” State v. Porter, 1st Dist. Hamilton No. C-200459,
2021-Ohio-3232, ¶ 25. However, an appellate court may not substitute its own
judgement for that of the trier of fact “[w]here reasonable minds can reach different
conclusions upon conflicting evidence.” State v. Jenks, 61 Ohio St.3d 259, 279,
574 N.E.2d 492 (1991).
II. Aggravated Menacing
{¶16} First, Harris argues that his conviction for aggravated menacing is
contrary to the manifest weight of the evidence. The aggravated-menacing statute
provides that “[n]o person shall knowingly cause another to believe that the offender
will cause serious physical harm to the person or property of the other person.”
R.C. 2903.21(A). Harris concedes that he knowingly threatened to blow Officer
Vogelpohl’s brains out and that act would constitute serious physical harm. However,
Harris argues that Officer Vogelpohl’s testimony about his belief that Harris would
cause serious physical harm was not credible.
{¶17} Generally, the jury is in the best position to assess the credibility of the
witnesses and can freely accept or reject testimony. State v. French, 1st Dist. Hamilton
No. C-050375, 2007-Ohio-726, ¶ 24, citing State v. DeHass, 10 Ohio St.2d 230,
6
OHIO FIRST DISTRICT COURT OF APPEALS
227 N.E.2d 212, (1967), paragraph one of the syllabus. Hence, a verdict is not against
the manifest weight of the evidence where the jury’s resolution of credibility is
reasonable and where the jury ultimately chose to believe the state’s witness as
opposed to the defense witness. See State v. Brown, 9th Dist. Summit No. 26490,
2013-Ohio-5112, ¶ 20, citing State v. Andrews, 9th Dist. Summit No. 25114,
2010-Ohio-6126, ¶ 28.
{¶18} Harris argues two issues with Officer Vogelpohl’s testimony. First,
Harris argues Officer Vogelpohl’s actions shown on his body-worn camera contradict
his claim that he was afraid. Officer Vogelpohl did not call for backup or seek cover
when threatened. Instead, he followed Harris asking, “You’re going to do what?” to
get Harris to repeat the threat. Officer Vogelpohl drew his firearm only after Harris
dropped one bag to reach another. Second, Harris notes that Officer Vogelpohl only
testified on redirect after the lunch break that he took the threat seriously and was
afraid, but he initially testified that Harris’s threat frustrated him. Harris testified that
previous interactions with Officer Vogelpohl had gone poorly, and that Officer
Vogelpohl was harassing Harris.
{¶19} We hold the jury did not lose its way and create a manifest miscarriage
of justice when it found Harris guilty of aggravated menacing. The jury watched the
body-worn camera video which recorded Harris making the threat, heard both
Harris’s and Officer Vogelpohl’s testimony about what happened that night, and
observed both witnesses on the stand. The jury did not lose its way when it found
Officer Vogelpohl’s fear credible based on the events of the night and Officer
Vogelpohl’s explanation of his own thoughts and feelings. See State v. Carson,
1st Dist. Hamilton No. C-180336, 2019-Ohio-4550, ¶ 19. The jury was free to accept
7
OHIO FIRST DISTRICT COURT OF APPEALS
Officer Vogelpohl’s version of the events and reject Harris’s version of events,
particularly where, as here, the jury watched a video recording of the threat and
observed Harris’s tone and demeanor in that moment. To the extent that Harris
claimed Officer Vogelpohl is racially biased, and thus his testimony is not credible,
that is a determination best left to the jury. See State v. Staley, 1st Dist. Hamilton Nos.
C-200270, C-200271 and C-200272, 2021-Ohio-3086, ¶ 24. Accordingly, Harris’s
conviction for aggravated menacing was not contrary to the manifest weight of the
evidence.
III. Obstruction of Official Business
{¶20} Second, Harris argues his conviction for obstructing official business
was not supported by sufficient evidence and was contrary to the manifest weight of
the evidence.
{¶21} To support a conviction for obstructing official business under
R.C. 2921.31(A), the state must 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.” In re Payne,
1st Dist. Hamilton No. C-040705, 2005-Ohio-4849, ¶ 11. Harris’s argument focuses
on element (3), whether he purposefully obstructed official business, and element (4),
whether his actions hampered or impeded Officer Vogelpohl’s investigation.
{¶22} Turning to whether Harris actually hampered or impeded Officer
Vogelpohl’s investigation, not every act that “can conceivably be said to hinder a police
officer rises to the level of criminal conduct.” Id. at ¶ 16. Interference with the police
by citizens must be “ ‘viewed as a continuum along which, at a certain point, the line
8
OHIO FIRST DISTRICT COURT OF APPEALS
is crossed’ ” where the conduct is punishable. Id., quoting State v. Stayton,
126 Ohio App.3d 158, 164, 709 N.E.2d 1224 (1st Dist.1998). R.C. 2921.31(A) does not
criminalize every “minor ‘delay, annoyance, irritation, or inconvenience’ ” put on a
police officer. State v. Harris, 2018-Ohio-4316, 121 N.E.3d 21, ¶ 16 (4th Dist.), quoting
State v. Vitantonio, 2013-Ohio-4100, 995 N.E.2d 1291 (11th Dist.), ¶ 14, quoting
Lakewood v. Simpson, 8th Dist. Cuyahoga No. 80383, 2002-Ohio-4086, ¶ 16.
{¶23} Rather, the statute criminalizes conduct where the defendant commits
an affirmative act, and that affirmative act creates a “substantial stoppage” in the
police officer’s official business. See State v. Grice, 180 Ohio App.3d 700,
2009-Ohio-372, 906 N.E.2d 1203, ¶ 12 (1st Dist.). A “substantial stoppage” is not a
set period of time; rather the defendant’s act must “actually hamper or impede” the
officer’s performance of official duties. State v. Wellman, 173 Ohio App.3d 494,
2007-Ohio-2953, 879 N.E.2d 215, ¶ 18 (1st Dist.). Additionally, the defendant need
not be successful in preventing the officers from performing their duties; merely
obstructing the officers from doing so is enough. Id. at ¶ 19. The mere refusal to
produce identification upon request of a police officer is not an “affirmative act” for
the purposes of obstructing official business. Grice at ¶ 9. Ordinarily, an individual
can be found guilty of obstructing official business by performing a specific act after a
police officer has ordered him or her to stop. State v. Gibson, 2019-Ohio-1022,
133 N.E.3d 1006, ¶ 19 (2d Dist.), quoting City of Girard v. Oakman, 2018-Ohio-1212,
110 N.E.3d 530, ¶ 52 (11th Dist.). But “if an officer has the right to detain an individual,
the individual cannot continue walking away from the officer once he or she is aware
that the officer is trying to detain him or her.” State v. Easterling, 2019-Ohio-2470,
139 N.E.3d 497, ¶ 37 (2d Dist.), quoting State v. Harris, 2015-Ohio-5378,
9
OHIO FIRST DISTRICT COURT OF APPEALS
56 N.E.3d 286, ¶ 7 (9th Dist.); see State v. Lohaus, 1st Dist. Hamilton No. C-020444,
2003-Ohio-777, ¶ 11-12 (holding R.C. 2921.31 prohibits “fleeing from a lawful Terry
stop across several lawns after being told to stop * * * .”).
{¶24} Harris did not obstruct official business when he refused to provide his
identification at the outset of the encounter, or argued with and swore at Officer
Vogelpohl, or shouted his frustration into the night. Had that been the only evidence,
this would be a different case. But Harris heard Officer Vogelpohl say, “I’m going to
issue you a ticket for being in the park after hours,” so Harris knew Officer Vogelpohl
intended to cite him. But Harris walked away from Officer Vogelpohl, necessitating a
seven-minute foot pursuit. Five minutes into walking after Harris, Officer Vogelpohl
called for a backup car. When the additional police cruiser arrived to stop Harris,
Officer Vogelpohl ordered Harris to stop. Harris ran from the officers, and, after a
brief chase, they had to physically restrain him. Harris did not merely refuse to
cooperate; Harris engaged in the affirmative act of gathering his belongings and
walking away when he knew that Officer Vogelpohl intended to detain him and issue
him a ticket. Then, when ordered to stop a few minutes later, Harris ran. Viewing this
evidence in the light most favorable to the prosecution, a trier of fact could reasonably
conclude that Harris created a substantial stoppage by impeding Officer Vogelpohl
from issuing the ticket while he followed Harris until Harris was arrested.
{¶25} Turning to whether Harris purposefully obstructed official business, a
person acts “purposefully” when it is the person’s “specific intention” to cause a certain
result or engage in the prohibited conduct, regardless of what the person intends to
accomplish by doing so. See R.C. 2901.22(A). “The purpose with which a person does
an act is determined from the manner in which it is done, the means used, and all the
10
OHIO FIRST DISTRICT COURT OF APPEALS
other facts and circumstances in evidence.” In re Payne 1st Dist. Hamilton
No. C-040705, 2005-Ohio-4849, at ¶ 15. A trier of fact must be able to reasonably
infer from the nature of a person’s conduct that the person intended his conduct to
obstruct official business. Id.{¶26} The record here supports an inference from the nature of Harris’s
conduct that Harris specifically intended to obstruct Officer Vogelpohl from issuing a
ticket to Harris. The body-worn camera footage shows Officer Vogelpohl telling Harris
he would receive a ticket and Harris responded by gathering his belongings and
walking away. Harris continued walking away from Officer Vogelpohl for several
minutes, and when a police car pulled in front of Harris to stop him, he ran. Viewing
this evidence in the light most favorable to the prosecution, a reasonable factfinder
could conclude that Harris affirmatively acted by walking away from Officer
Vogelpohl. That reasonable factfinder could conclude that Harris impeded Officer
Vogelpohl’s performance of his police duties during the pursuit. From that conduct,
a reasonable factfinder could infer that Harris specifically intended to avoid the ticket
by walking and then running away from Officer Vogelpohl.
{¶27} Ultimately, the jury was presented with sufficient evidence that Harris
committed an affirmative act that caused a substantial stoppage of Officer Vogelpohl’s
investigation and that Harris specifically intended to cause that result. We hold the
jury did not lose its way and create a manifest miscarriage of justice when it found
Harris guilty of obstruction of official business.
11
OHIO FIRST DISTRICT COURT OF APPEALS
IV. Criminal Trespass and Being in Washington Park After Hours
{¶28} Harris argues that his convictions for criminal trespass and being in
Washington Park after hours were not supported by sufficient evidence and were
contrary to the manifest weight of the evidence.
{¶29} The criminal trespass statute provides that “[n]o person, without
privilege to do so, shall * * * [k]nowingly enter or remain on the land or premises of
another.” R.C. 2911.21(A)(1). Park Board Rule 21 provides that Washington Park,
among other specified parks, “shall be closed to the public between 11:00 p.m. and
6:00 a.m. except for vehicular traffic on through roadways or vehicular or pedestrian
traffic within, accessing, or exiting public parking garages directly connecting to city
streets.” Cincinnati Park Rule 21, https://www.cincinnati-oh.gov/cincyparks/visit-a-
park/park-board-rules/ (accessed September 12, 2023). A violation of any Park Board
Rule is punishable as a minor misdemeanor. Cincinnati Park Board Rule 39.
{¶30} Generally, “a person has a privilege to enter and be upon the public
areas of public property.” State v. Shelton, 63 Ohio App.3d 137, 578 N.E.2d 473(4th Dist.1989). However, a person may commit a criminal trespass onto public
property when his or her general privilege to be there has been properly revoked.
A “ ‘public official or agency into whose charge the property is put can withdraw or
revoke the privilege otherwise enjoyed by a member of the public.’ ” Staley, 1st Dist.
Hamilton Nos. C-200270, C-200271 and C-200272, 2021-Ohio-3086, at ¶ 13, quoting
Dayton v. Moore, 2d Dist. Montgomery No. 13369, 1993 Ohio App. LEXIS 1647(Mar. 25, 1993).
{¶31} Here, the record establishes that 3CDC, the entity charged with
managing Washington Park, set out three signs that display the hours that the park is
12
OHIO FIRST DISTRICT COURT OF APPEALS
open. Outside of those hours, the signs notify members of the public that their
privilege to be in Washington Park is revoked by Park Rule 21. While it is unclear from
the record whether the signs state that Washington Park closes at 10:00 p.m. or
11:00 p.m., Harris was in the park at 4:45 a.m., well after either closing time and before
the park opens at 6:00 a.m. Additionally, Officer Vogelpohl testified that on previous
occasions, he had told Harris not to be in Washington Park when it is closed, also
revoking Harris’s privilege to be in Washington Park when it is closed. Officer
Vogelpohl’s body-worn camera recorded Harris shouting, “I’ll be back at 6!” after he
left the park. This statement demonstrates Harris knew the park opened at 6:00 a.m.,
that Harris was not currently permitted to be in the park, and that Harris would be
permitted in the park when it was open.
{¶32} Harris contends he was passing through Washington Park, but Park
Rule 21 only exempts “pedestrian traffic within, accessing, or exiting public parking
garages.” The rule does not generally exempt pedestrian traffic walking through the
park. Harris does not argue he fell under the exception for accessing or exiting from a
public parking garage. Even if he did argue the exception applied, the evidence
suggests otherwise. Harris was stopped at the gazebo in the middle of the park, away
from the access points to the parking garages or the routes from those access points to
the street.
{¶33} Viewing the evidence presented in the light most favorable to the
prosecution, a reasonable factfinder could determine that Harris was in the park
between 11:00 p.m. and 6:00 a.m. and that the posted signs revoked Harris’s privilege
to be in the park. Thus, the finder of fact was presented with sufficient evidence to
find Harris guilty of criminal trespass and being in the park after hours. Nor did the
13
OHIO FIRST DISTRICT COURT OF APPEALS
finder of fact lose its way and create a manifest miscarriage of justice in finding Harris
guilty of obstruction of official business.
Conclusion
{¶34} Based on the foregoing reasoning, Harris’s conviction for aggravated
menacing was not contrary to the manifest weight of the evidence and Harris’s
convictions for obstructing official business, criminal trespass, and being in the park
after hours each were supported by sufficient evidence and not contrary to the
manifest weight of the evidence. This is not one of those “exceptional cases in which
the evidence weighs heavily against the conviction” such that reversal on the basis of
manifest weight is required. See Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,
(Cook, J., concurring), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983).
{¶35} Accordingly, we overrule the assignment of error and affirm the
judgments of the municipal court.
Judgments affirmed.
C ROUSE , P.J., and B OCK , J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
14