[Cite as State v. Harper, 2013-Ohio-5217.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130134
TRIAL NO. 12CRB-26827-B
Plaintiff-Appellee, :
O P I N I O N.
vs. :
GREGORY HARPER, SR., :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Appellant Discharged
Date of Judgment Entry on Appeal: November 27, 2013
John Curp, City Solicitor, Charlie Rubenstein, City Prosecutor, and Eric Cook,
Assistant City Prosecutor, for Plaintiff-Appellee,
Michele L. Berry, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} This is an appeal from a conviction for resisting arrest. We are
compelled to reverse because the city of Cincinnati’s prosecutor’s office chose to keep a
critical exhibit admitted at trial—a video of the alleged incident—in a desk drawer rather
than making it a part of the record on appeal. Because the appellate record as it stands
does not contain sufficient evidence of the offense, we reverse the judgment of the trial
court and discharge defendant-appellant Gregory Harper from further prosecution.
I.
{¶2} The case began with a 911 call by Mr. Harper, complaining that his
roommate, Denise Cheatham, had assaulted him. When Cincinnati police officers
responded to the call, Mr. Harper met them outside his apartment. The officers
questioned the pair separately. Ms. Cheatham indicated that she had been hit by Mr.
Harper and that she wanted Mr. Harper arrested, so Officer Dean Chatman decided to
handcuff Mr. Harper and place him in a police cruiser while the incident was
investigated. Officer Chatman started to write a citation for assault against Mr. Harper,
but his partner informed him that Ms. Cheatham had left the scene. Unable to get a
statement from Ms. Cheatham, Officer Chatman advised Mr. Harper that he was free to
leave.
{¶3} Mr. Harper believed that he was the wronged party and wanted the
police officers to arrest Ms. Cheatham. After being told by Officer Chatman that Ms.
Cheatham could not be arrested because she was no longer at the scene, Mr. Harper
chose to protest the police officer’s inaction nonviolently by staging a “sit-in” in the
police cruiser. Despite repeated requests, Mr. Harper refused to get out of the cruiser.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} The “sit-in” lasted for over an hour and a half. Eventually, the frustrated
police officers called the chief city prosecutor for guidance. The city prosecutor advised
them to arrest Mr. Harper for the assault. Armed with this advice, Officer Chatman told
Mr. Harper that he was going to be charged with assault, and that if he resisted in the
slightest, he would be charged with resisting arrest. What happened next is unclear.
According to Officer Chatman, the policy of the police department was to handcuff
arrestees outside of the cruiser. But Officer Chatman was unsure whether he had asked
Mr. Harper to leave the car or had asked him to put his hands behind his back
immediately. Referring to the video from the cruiser camera, Officer Chatman stated,
“The video will have to recall that. I don’t recall if I asked him to put his hands behind
his back to handcuff him or to step out. Either way, he didn’t do either what I asked him
to do.”
{¶5} Mr. Harper’s recollection of what happened after he was told that he was
under arrest for assault is different. According to Mr. Harper, he was unsure why he was
under arrest. And rather than trying to resist arrest, he attempted “to accommodate the
officers by responding to whatever they needed me to respond to. When they asked me
to put my hands behind my back, I did that.”
{¶6} After considering the testimony of the witnesses and watching the video,
the court found that, based on what it had seen on the video, Mr. Harper had resisted
arrest. The court found him guilty of resisting arrest, sentenced him to six days’
incarceration, and credited him with six days served.
II.
{¶7} In his first assignment of error, Mr. Harper asserts that his conviction
was supported by insufficient evidence and was against the manifest weight of the
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OHIO FIRST DISTRICT COURT OF APPEALS
evidence. Before considering this assignment, we must first address the absence from
the appellate record of an exhibit relied upon by the court below.
{¶8} Because Mr. Harper’s “sit-in” lasted for over an hour and a half, the
video from the police cruiser was divided into three parts. Joint Exhibit 1 was the cruiser
video. The pivotal volume—the one that showed the alleged offense—was volume 3, and
it was this volume that the trial court apparently reviewed prior to making its finding of
guilt. The record indicates that, at the conclusion of the trial, Joint Exhibit 1 was
admitted into evidence by the court.
{¶9} On June 19, 2013, Mr. Harper’s appellate counsel, who was not his trial
counsel, filed a motion for an extension of time to file her brief with this court. Within
that motion, which was served on the city, counsel explained that she was unable to
complete the brief because volume 3 of Exhibit 1 was missing. Counsel explained that
the DVD marked as “Joint Exhibit 1” and contained in the evidence box
for this case in the Court Reporter’s Office is not the correct DVD—rather,
it is Volume 1. Likewise, the DVD given to counsel by trial counsel is also
not the correct DVD—it is Volume 2. Counsel is seeking the assistance of
the City of Cincinnati Prosecutor’s Office and the Cincinnati Police
Department in locating a copy of Volume 3 for counsel’s review.
{¶10} Appellate counsel’s efforts to locate volume 3 were unavailing,
prompting her to file a notice with this court that volume 3 was missing. Within her
notice, appellate counsel stated that
[c]ounsel sought the assistance of the City of Cincinnati’s Prosecutor’s
Office/Counsel for Appellee (Christopher Lui) to locate the correct
volume of the cruiser camera video. Mr. Lui informed undersigned
counsel that the trial attorney for the City of Cincinnati no longer is
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OHIO FIRST DISTRICT COURT OF APPEALS
employed by the City of Cincinnati Prosecutor’s Office and that his files
for this case are also missing. Counsel for Appellee further informed
undersigned counsel for Appellant Harper that, to date, the City of
Cincinnati Police Department has not been able to reproduce the video in
question.
Mr. Harper’s appellate brief, filed on August 1, 2013, again referenced the fact that
volume 3 was missing from the appellate record.
{¶11} The state filed its brief on November 4, 2013. Within the brief, the
assistant city prosecutor stated that “Defendant’s claim that Joint Exhibit 1 is missing
from the record is not correct and it is up to the Appellant to make [sure] the record has
been corrected.” Later in the brief, the prosecutor states that “[t]his issue [of the effect
of the lost exhibit on Mr. Harper’s appellate rights] is moot because Joint Exhibit 1 has
been sent to Defendant-Appellant and it is up to the Defendant-Appellant to correct the
record.”
{¶12} During the argument before this court, however, it was revealed that no
copy of volume 3 had been sent to Mr. Harper’s appellate counsel, and that the original
volume 3, which should have been left in the possession of the court reporter following
the trial, was in the assistant city prosecutor’s file. The assistant city prosecutor
represented to this court that volume 3 had been in his file from the time he had been
assigned the case in September 2013. It seems evident, then, that volume 3 had been in
the possession of the city since the conclusion of the trial. The assistant city prosecutor
acknowledged to this court that the statement in his brief that volume 3 had been sent to
Mr. Harper’s counsel had not been based on personal knowledge. The assistant city
prosecutor also conceded that, despite the fact that volume 3 was in his possession, he
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OHIO FIRST DISTRICT COURT OF APPEALS
had not tried to supplement the appellate record because he was under the impression
that it was Mr. Harper’s counsel’s burden to do so.
{¶13} What is troubling is that as is evidenced in repeated filings in this court,
the city knew that the DVD was missing, and that Mr. Harper’s counsel was making
every effort to make the DVD a part of the appellate record. Yet the city did nothing.
The city attempts to hide behind App.R. 10(A) and argues that the burden was on the
appellant to make sure the record was complete. What the city fails to explain is how
counsel could have supplemented the record with a DVD that was in the city
prosecutor’s possession all along. Because the city did not supplement the record, our
review is limited to the record as it stands before us.
III.
{¶14} Turning to Mr. Harper’s sufficiency claim, we must determine whether
the city presented adequate evidence on each element of the offense. State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Mr. Harper was
convicted of violating 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.”
Officer Chatman stated that he believed that Mr. Harper had “clamped up” when he
was told he was under arrest. But Officer Chatman deferred to the video to show
exactly what had occurred. Because the video is not part of the record before us due
to the conduct of the city prosecutor’s office, we are unable to confirm that Mr.
Harper “clamped up” or did anything else that would constitute resisting arrest. As
we unable to conclude that the city presented sufficient evidence of the offense, we
sustain Mr. Harper’s first assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} Our resolution of the first assignment of error is dispositive, so we
need not consider Mr. Harper’s second assignment of error. The judgment of the
trial court is reversed, and Mr. Harper is discharged from further prosecution.
Judgment reversed and appellant discharged.
H ENDON , P.J., and H ILDEBRANDT , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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