State v. Harris

[Cite as State v. Harris, 2023-Ohio-3271.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY

STATE OF OHIO :
:
Appellee : C.A. No. 2022-CA-73
:
v. : Trial Court Case No. 22-CR-0030
:
RONALD HARRIS II : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:

...........

OPINION

Rendered on September 15, 2023

...........

KYLE J. LENNEN, Attorney for Appellant

ERICA D. LUNDERMAN, Attorney for Appellee

.............

EPLEY, J.

{¶ 1} Ronald Harris II was convicted after a jury trial of attempted murder, having

weapons while under disability, carrying a concealed weapon, and improper handling of

a firearm in a motor vehicle, along with accompanying firearm and repeat violent offender

specifications. He received an aggregate sentence of 23 to 28½ years in prison. Harris

appeals from his convictions, claiming that the trial court improperly impaneled the jury
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without his presence and improperly denied his attorney’s pretrial motion to withdraw.

For the following reasons, the trial court’s judgment will be affirmed.

I. Facts and Procedural History

{¶ 2} At 9:48 p.m. on January 9, 2022, after a brief verbal exchange, Harris drew

a firearm from his pocket and shot Matthew Westmoreland as Westmoreland stood by

the front door to the two-story apartment building in which they both lived. The bullet

entered Westmoreland’s chest, exited his back, went through the front door, and lodged

in a wall in the foyer. Harris left the scene and went to a residence in Urbana, where the

police later found him. The gun Harris used was located in his vehicle behind the

residence. Harris had prior felony convictions for aggravated robbery and drug abuse.

{¶ 3} Less than two weeks later, Harris was charged in a seven-count indictment

with attempted murder, felonious assault, carrying a concealed weapon, improper

handling of a firearm in a motor vehicle, improperly discharging a firearm at or into a

habitation, and two counts of having weapons while under disability. The attempted

murder and felonious assault counts included a firearm specification and a repeat violent

offender specification.

{¶ 4} In February 2022, Harris entered a plea of not guilty by reason of insanity,

and his defense counsel raised questions about his competency. The trial court ordered

a competency evaluation. On April 11, 2022, prior to the competency evaluation,

defense counsel moved to withdraw on the ground that Harris wished to represent

himself. Counsel requested an expedited hearing on the motion. At the hearing on April

14, the trial court indicated that it wanted to wait to rule on the motion until the competency
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report was received and a competency hearing held.

{¶ 5} The competency hearing was held on April 28, 2022, during which the parties

stipulated to the competency report finding Harris to be competent. The trial court also

talked extensively with Harris about his desire to represent himself. Ultimately, Harris

requested that a private attorney (rather than a public defender) be appointed to represent

him. The court agreed and permitted Harris’s counsel to withdraw. Later that day, the

trial court appointed new counsel for Harris. The jury trial was scheduled for May 23,

2022. New counsel requested a continuance of that date, which was granted. The trial

was rescheduled for July 27, 2022.

{¶ 6} On May 16, Harris filed a motion to suppress the evidence obtained from the

search of Harris’s vehicle. Defense counsel cited deficiencies in the search warrant and

in the execution of the warrant. After a hearing on June 27, 2022, the trial court denied

the motion to suppress. Harris also filed several pro se motions between May and July

2022. The trial court overruled these motions because he was represented by counsel.

{¶ 7} On July 26, 2022, the day before trial, defense counsel sought to withdraw.

He represented that “communication and trust between counsel and the Defendant has

broken down to the point that effective representation is no longer possible. The

Defendant has requested on more than one occasion new counsel and/or to represent

himself.” The trial court held a hearing that morning. After speaking with defense

counsel and Harris and addressing Harris’s concerns, the trial court overruled the motion.

{¶ 8} A two-day jury trial began on July 27, 2022, as scheduled. The trial court

noted, at the outset, that Harris was not present and was “refusing to come into the
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courtroom.” The court explained to the prospective jurors that Harris had the right to be

there and knew that he could come in at any time, and although the court and the parties

were uncomfortable with his absence, “really we have no choice but to proceed without

him.” Jury selection proceeded and the jury was impaneled and sworn without Harris

present. He joined the proceedings after the lunch recess, at which time the prosecutor

gave his opening statement.

{¶ 9} After opening statements, the State presented the testimony of

Westmoreland, a responding Springfield police officer, an eyewitness, the evidence

technician who processed the scene and Harris’s vehicle, a firearms identification

examiner with the Ohio Bureau of Criminal Investigations (BCI), and two Springfield

detectives. It also offered numerous exhibits, including surveillance videos from the

apartment building, still photographs, the spent bullet and cartridge, the gun and

magazine, Harris’s clothing, a bullet found in Harris’s pocket, the BCI report, and certified

copies of the judgment entries for Harris’s prior convictions. Harris testified on his own

behalf, claiming that he had acted in self-defense. After deliberating, the jury found

Harris guilty of all charges and the accompanying firearm specifications. Per R.C.

2941.149(B), the trial court later determined that Harris was a repeat violent offender.

{¶ 10} At sentencing, the trial court merged the attempted murder, felonious

assault, and improper firing of firearm charges and also merged the two having weapons

while under disability charges. It imposed 3 years for having weapons under disability,

18 months for carrying a concealed weapon, and 18 months for improper handling of a

firearm in a motor vehicle, to be served concurrently. That aggregate three-year
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sentence was to be served consecutively to a term of 11 to 16½ years for attempted

murder. The trial court also sentenced Harris to three years for the firearm specification

and six years for the repeat violent offender specification. Harris’s total sentence was

23 to 28½ years in prison.

{¶ 11} Harris appeals from his convictions, raising two assignments of error. We

will address them in reverse order.

II. Motion to Withdraw

{¶ 12} In his second assignment of error, Harris claims that the trial court erred by

denying his trial counsel’s motion to withdraw.

{¶ 13} Defense counsel moved to withdraw on July 26, 2022, the day before trial.

At the hearing on the motion, which was held the same day, defense counsel told the

court: “I don’t believe I can effectively represent him at this time. Our communication

and our relationship has broken down to that extent. Mr. Harris has informed me on

more than one occasion that he either wants another attorney or he wants to represent

himself. Up until yesterday I thought we could work through that. I don’t believe that’s

the case anymore and I’m asking to withdraw.” July 26, 2022 Hrg. Tr. at 3.

{¶ 14} The court then turned to Harris and asked him “what’s the problem.” When

Harris responded that there were “serious defense counsel issues that I would like

addressed professionally in my due process,” the court asked him to identify those

problems. Harris first mentioned that he had filed several pro se motions. The court

told Harris that he was not allowed to file motions himself while represented by counsel,

so it was not defense counsel’s fault. Harris responded that he expected defense
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counsel to refile the motions. The court then turned to defense counsel and asked if he

had seen the motions and whether he thought the motions had any merit. Counsel said

that he had seen them but did not think they had merit.

{¶ 15} Harris next told the court that he wanted to file a “Brandy” motion, which the

court interpreted as a Brady motion. The court asked the prosecutor whether the State

had provided discovery to the defense. The prosecutor responded that “all the

information has been turned in, the witness list and –.” The court told Harris, “Okay.

You’ve gotten everything that the State has so what’s your next complaint?” Harris

raised again that he had not received a “fair ruling on my own motions.” The court

reiterated that he could not file pro se motions when represented by counsel and counsel

thought those motions lacked merit.

{¶ 16} Finally, Harris raised that he did not believe he could get a fair trial and he

wanted a “change of venue,” meaning that he wanted a different judge to rule on his

motions. The court explained what a change of venue actually meant and that he would

continue to be the judge. Harris stated that he wanted a new judge due to the court’s

“lack of accepting the motions and the defense towards my case.” The trial court

repeated why it had rejected his pro se motions and described the trial process, including

the State’s burden of proof at trial, that he would have the right to present evidence (or

not) and defend himself at trial, and that he had the right to testify in his own defense if

he wanted to but could not be forced to. The court concluded:

You’ve already been through one attorney, [former defense counsel], okay?

We appointed [defense counsel] to represent you. [Defense counsel] is an
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excellent attorney. He rarely has problems getting along with his clients so

I’m not going to play this game where the day before trial you start

complaining about things and asking for another lawyer. [Defense

counsel] is your lawyer. He’s going to represent you tomorrow.

July 26, 2022 Hrg. Tr. at 8-9.

{¶ 17} Harris now argues that the trial court did not adequately inquire about the

alleged breakdown in communication before denying defense counsel’s motion to

withdraw.

{¶ 18} An indigent defendant is entitled to competent representation by the

attorney that the trial court appoints to represent him or her. State v. Brock, 2017-Ohio-

759, 85 N.E.3d 1072, ¶ 25 (2d Dist.). However, it is well established that a defendant

has no right to representation by a particular attorney. State v. Johnson, 2d Dist.

Champaign No. 2019-CA-7, 2019-Ohio-4595, ¶ 27, citing State v. Cowans, 87 Ohio St.3d

68, 72, 717 N.E.2d 298 (1999). To justify the discharge of a court-appointed attorney

based on a breakdown in the attorney-client relationship, the defendant generally must

show that the breakdown is of such magnitude as to jeopardize the defendant’s Sixth

Amendment right to effective assistance of counsel. Brock at ¶ 25; State v. Coleman, 37

Ohio St.3d 286, 292, 525 N.E.2d 792 (1988).

{¶ 19} “[S]ubstitution of counsel is not warranted due to disagreements about trial

strategy or tactics.” State v. Monahan, 2d Dist. Darke No. 2018-CA-2, 2018-Ohio-4633,

¶ 58. Moreover, “mere hostility, tension and personal conflicts between attorney and

client do not constitute a total breakdown in communication if those problems do not
 -8-

interfere with the preparation and presentation of a defense.” State v. Furlow, 2d Dist.

Clark No. 2003-CA-58, 2004-Ohio-5279, ¶ 12, citing State v. Gordon, 149 Ohio App.3d

237, 2002-Ohio-2761, 776 N.E.2d 1135, ¶ 12 (1st Dist.). “Competent representation

does not include the right to develop and share a ‘meaningful attorney-client relationship’

with one’s attorney.” Gordon at ¶ 12; see State v. Ware, 2d Dist. Darke No. 2018-CA-8,

2019-Ohio-2595, ¶ 36.

{¶ 20} When reviewing whether a trial court erred in denying a motion for new

counsel, an appellate court should consider: (1) the timeliness of the motion, (2) the

adequacy of the trial court’s inquiry into the matter, (3) the extent of the conflict between

the attorney and client and whether it was so great that it resulted in a total lack of

communication preventing an adequate defense, and (4) the balancing of these factors

with the public’s interest in the prompt and efficient administration of justice. State v.

Jones, 91 Ohio St.3d 335, 342, 744 N.E.2d 1163 (2001), citing United States v. Jennings,

83 F.3d 145, 148 (6th Cir.1996); State v. Lawson, 2020-Ohio-6852, 164 N.E.3d 1130,

¶ 40 (2d Dist.).

{¶ 21} The decision whether to remove court-appointed counsel and allow

substitution of new counsel is addressed to the sound discretion of the trial court, and its

decision will not be reversed on appeal absent an abuse of discretion. Furlow at ¶ 13. A

trial court abuses its discretion if it makes an unreasonable, unconscionable, or arbitrary

decision. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

{¶ 22} We find no abuse of discretion in the trial court’s denial of defense counsel’s

motion to withdraw. Harris’s motion was filed the day before his jury trial was to begin,
 -9-

and the court thoroughly inquired into the conflict between Harris and his attorney. While

the trial court’s discussion with Harris did not expressly ask Harris for his explanation of

the breakdown in communication, the court’s questioning sought Harris’s bases for his

conflict with defense counsel. Harris’s primary concern was counsel’s failure to pursue

the issues that Harris had tried to raise in his pro se motions, which the trial court would

not consider. Defense counsel told the court that he had reviewed the pro se motions

and did not believe they had merit. The trial court could have reasonably concluded that

new counsel would reach a similar conclusion and that substitution of counsel would have

little benefit. Harris also mentioned wanting to file a discovery motion and to have a new

judge review his motions, and the trial court addressed those concerns, including by

explaining Harris’s rights at trial the following day. Although defense counsel stated that

a breakdown in communication had occurred, Harris’s responses at the hearing did not

reflect that the breakdown was of such magnitude as to jeopardize his Sixth Amendment

right to effective assistance of counsel.

{¶ 23} Harris’s second assignment of error is overruled.

III. Harris’s Absence During Jury Selection

{¶ 24} In his first assignment of error, Harris claims that the trial court improperly

impaneled a jury without his presence. He argues that Crim.R. 43(A)(1) unambiguously

requires a defendant to be present for the commencement of the trial and thus the trial

court erred in commencing the trial without him.

{¶ 25} Harris’s jury trial was scheduled to begin at 9:00 a.m. on July 27, 2022. At

9:45 a.m., the court proceeded with Harris’s case with counsel and prospective jurors
 -10-

present; Harris was not there. After the State indicated that it was prepared to proceed,

the court addressed the prospective jurors, apologized for the delay, and introduced the

court staff, attorneys, and the State’s representative. It continued:

Obviously you see that Mr. Harris is not seated at counsel table. He is

refusing to come into the courtroom. I’m not exactly sure why but he

obviously has the right to be here and I believe he understands that and

we’ve made it clear to him that any time he wants to change his mind, he’s

welcome to come in, have a seat at counsel table, and to be with us. So

he knows that and he’s nevertheless not coming into the courtroom. So

really we have no choice but to proceed without him. I’m very

uncomfortable with that. I know the Prosecutor’s uncomfortable with that

and probably most of all, [Defense Counsel] is uncomfortable with that.

And maybe you’re uncomfortable with that but the bottom line is it’s his

choice and he’s choosing to not come in. So hopefully he will join us

sooner rather than later and you’ll have the opportunity to be introduced to

him.

Trial Tr. at 8-10.

{¶ 26} The court then proceeded with preliminary instructions to the jury pool.

Among the instructions, the court told the group “not to read anything into the fact that Mr.

Harris isn’t coming into the courtroom. It could be for a lot of different reasons or one

reason. We don’t know but that shouldn’t affect one way or another how you examine

the case and the evidence of the case.” Trial Tr. at 12. After providing the preliminary
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instructions, 12 prospective jurors were asked to sit in the jury box and all prospective

jurors were sworn. The prosecutor then conducted his voir dire examination.

{¶ 27} After the prosecutor finished his questioning, the trial court called a brief

recess to allow defense counsel to consult with Harris to see if he would like to come into

the courtroom. When court resumed, Harris again was not present. See, e.g., Trial Tr.

at 32, 61. Defense counsel told the court, “We’re ready to proceed,” and defense

counsel then conducted his voir dire examination.

{¶ 28} After challenges for cause and the examination of additional prospective

jurors, the court called a 15-minute recess before continuing with jury selection. Defense

counsel again spoke with Harris during the recess about coming into the courtroom. See

Trial Tr. at 71, 73-74. However, court resumed with only counsel and the prospective

jurors present. See Trial Tr. at 67, 68-69, 76. Defense counsel told the trial court that

Harris still did not want to come in. Trial Tr. at 74.

{¶ 29} The jury was selected, impaneled, and sworn in Harris’s absence. Trial Tr.

at 109. No prospective juror who expressed that he or she would be influenced by

Harris’s absence was part of the impaneled jury.

{¶ 30} The trial court completed the morning session with additional instructions

for the jury. At the end of its instructions, it told the jury: “Periodically we will check to

see if the Defendant would like to come into the courtroom but I just want everybody here

to understand that that’s entirely within his control.” Trial Tr. at 117. After telling the jury

that the afternoon session would begin with opening statements, the court excused the

jury for lunch.
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{¶ 31} The court then stated that it “want[ed] to make sure the record’s clear that

the Defendant is downstairs in the holding cell.” Trial Tr. at 118. The courtroom deputy

confirmed that he was. The courtroom deputy also stated that Harris had been asked

approximately five or six times during the morning whether he wanted to attend trial. The

court obtained assurances that Harris would be brought to the courtroom right away if he

expressed his desire to come. The trial court then asked defense counsel to check with

Harris during breaks to see if he wanted to come into court. Defense counsel responded

that he had been doing that and would continue to do so. The court also encouraged

defense counsel to ask for a recess at any time to confer with Harris, even in the middle

of witnesses. Finally, the court stated:

I wanted to put on the record too that I suppose we could have brought him

up with some level of force and I did not want to do that because I think had

that happened, I think that might be even, at least as, I think it would be

more prejudicial if he were to be resisting and he was forced to come into

the courtroom. I just don’t think that would be a good scene for anybody

but, again, I do just want to make the record clear that it’s completely up to

him any time he wants to come in we’ll make it happen.

Trial Tr. at 120.

{¶ 32} When court resumed after the lunch recess, Harris was present. Trial Tr.

at 120. The trial court expressly noted Harris’s attendance after the State’s opening

statement. Trial Tr. at 124-125. Harris was in the courtroom for the rest of the trial.

{¶ 33} On appeal, Harris claims that the trial court erred by commencing his trial in
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his absence, contrary to the express language of Crim.R. 43(A).

{¶ 34} A defendant has a fundamental right to be present at all critical stages of

his or her criminal trial. Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution; Article I, Section 10, Ohio Constitution; Crim.R. 43(A); e.g., State v. Grate,

164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 83. However, a defendant’s

absence does not necessarily result in prejudicial or constitutional error. Grate at ¶ 83.

“[T]he presence of a defendant is a condition of due process to the extent that a fair and

just hearing would be thwarted by his absence, and to that extent only.” (Emphasis sic.)

Id., quoting Snyder v. Mass., 291 U.S. 97, 107-108, 54 S.Ct. 330, 78 L.Ed. 674 (1934);

State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 139.

{¶ 35} Crim.R. 43(A) incorporates a defendant’s due process right to be physically

present. State v. Williams, 6 Ohio St.3d 281, 286, 452 N.E.2d 1323 (1983) (“In Ohio, the

expanded scope of the Due Process Clause, at least in criminal proceedings, had been

embodied in Crim.R. 43(A) * * *.”) That rule provides, in relevant part:

(1) Except as provided in Crim.R. 10 and divisions (A)(2) and (A)(3) of this

rule, the defendant must be physically present at every stage of the criminal

proceeding and trial, including the impaneling of the jury, the return of the

verdict, and the imposition of sentence, except as otherwise provided by

these rules. In all prosecutions, the defendant’s voluntary absence after

the trial has been commenced in the defendant’s presence shall not prevent

continuing the trial to and including the verdict. A corporation may appear

by counsel for all purposes.
 -14-

(Emphasis added.) “A jury trial commences after the jury is impaneled and sworn in the

presence of the defendant.” State v. Meade, 80 Ohio St.3d 419, 687 N.E.2d 278 (1997),

syllabus (construing and applying Crim.R. 43(A)).

{¶ 36} A defendant’s right to be present may be waived. Because defense

counsel may act on behalf of his or her client, an express waiver of defendant’s presence

by defense counsel is sufficient to waive the Crim.R. 43 presence requirement. State v.

Vinzant, 2d Dist. Montgomery No. 18546, 2001 WL 1598030, *1 (Dec. 14, 2001).

{¶ 37} In addition, waiver may occur through the defendant’s own actions,

including the defendant’s voluntary absence from court proceedings after trial has

commenced. Meade at 421; Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed.

500 (1912); State v. Kidd, 8th Dist. Cuyahoga No. 109126, 2020-Ohio-4994, ¶ 22. “A

defendant’s absence is voluntary if it is a product of his own free choice and unrestrained

will.” State v. Paige, 8th Dist. Cuyahoga No. 97939, 2012-Ohio-5727, ¶ 22, citing State

v. Carr, 104 Ohio App.3d 699, 703, 663 N.E.2d 341 (2d Dist.1995). When a defendant

refuses to leave his or her cell to attend a court proceeding, the defendant is considered

voluntarily absent. See Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, at ¶ 85

(“Grate voluntarily made himself absent from the hearing by refusing to leave his cell and

attend the video hearing.”).

{¶ 38} In general, defense counsel’s failure to object to a defendant’s absence

results in a waiver of the Crim.R. 43 error, and we review the matter for plain error. Carr

at 703. Plain error arises only when, “but for the error, the outcome of the trial clearly

would have been otherwise.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
 -15-

paragraph two of the syllabus.

{¶ 39} Harris focuses on the fact that he was absent when his trial commenced.

In Meade, the Ohio Supreme Court held that a trial court erred when it commenced the

trial without the defendant’s presence. In that case, Meade was in the courtroom while

his attorney and the prosecutor held last-minute plea discussions on the morning of trial.

After hearing that any sentence would likely include prison, he absconded. After waiting

for a period of time with prospective jurors present, the trial court proceeded with jury

selection. Meade never appeared for his trial, and he was found guilty in absentia, over

defense counsel’s objections. The Eighth District reversed, holding that Meade’s trial

had not officially commenced when he disappeared from the courtroom and that the trial

court had erred in proceeding with the trial in his absence.

{¶ 40} In affirming the appellate court, the Ohio Supreme Court reiterated that a

defendant’s right under Crim.R. 43(A) is not absolute, and a defendant’s voluntary

absence “after the trial has been commenced in [the defendant’s presence]” is deemed a

waiver of the right to be present. Meade, 80 Ohio St.3d at 421, 687 N.E.2d 278.

However, a unanimous Court concluded that, because Meade had fled before the jury

was impaneled and sworn, the trial court should have continued the proceedings until

Meade reappeared or was apprehended. Id. at 424.

{¶ 41} In reaching that conclusion, the supreme court reviewed the Eighth District’s

analysis of United States Supreme Court case law interpreting former Fed.R.Crim.P.

43(a), which held that the rule prohibited the trial of a defendant who was not present at

the beginning of trial. Id. at 422. Focusing on Crosby v. United States, 506 U.S. 255,
 -16-

113 S.Ct. 748, 122 L.Ed.2d 25 (1993), the Ohio Supreme Court noted Crosby’s holding

that “[t]he language, history, and logic of [federal] Rule 43 support a straightforward

interpretation that prohibits the trial in absentia of a defendant who is not present at the

beginning of trial.” (Emphasis added by Meade.) Id., quoting Crosby at 262.

{¶ 42} The Ohio Supreme Court recognized that the federal rule made a “logical

distinction” between a defendant’s pretrial versus mid-trial absence. Crosby stated that

“the costs of suspending a proceeding already under way will be greater than the cost of

postponing a trial not yet begun. If a clear line is to be drawn marking the point at which

the costs of delay are likely to outweigh the interests of the defendant and society in

having the defendant present, the commencement of trial is at least a plausible place at

which to draw that line.” Id. at 422-423, quoting Crosby at 261. The Ohio Supreme

Court also repeated Crosby’s rationale that “under the common law, felony defendants

generally had an unwaivable right to be present at trial and that an exception to this rule,

set forth in Fed.R.Crim.P. 43, stemmed from the court’s holding in Diaz v. United States

(1912), 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500.” The Ohio Supreme Court

distinguished Meade’s situation from Diaz and Fight v. State, 7 Ohio 180, Pt. I (1835),

which Diaz cited, because they involved a defendant’s flight after trial had begun with the

defendant present.

{¶ 43} The Meade Court further found the Eighth District’s interpretation of Crim.R.

43(A) to be consistent with R.C. 2945.12, entitled “when accused may be tried in his

absence.” That statute provides:

A person indicted for a misdemeanor, upon request in writing subscribed by
 -17-

him and entered in the journal, may be tried in his absence by a jury or by

the court. No other person shall be tried unless personally present, but if

a person indicted escapes or forfeits his recognizance after the jury is

sworn, the trial shall proceed and the verdict be received and recorded. If

the offense charged is a misdemeanor, judgment and sentence shall be

pronounced as if he were personally present. If the offense charged is a

felony, the case shall be continued until the accused appears in court, or is

retaken.

(Emphasis added.) The Court recognized that R.C. 2945.12 “permits the trial of accused

felons in absentia only if their voluntary absence occurred after the jury has been sworn.”

(Emphasis sic.) Meade at 424. The Court also found the Eighth District’s interpretation

to be consistent with the law regarding the Fifth Amendment protection against double

jeopardy. Id.

{¶ 44} In this case, the record is clear that Harris was not present when his trial

commenced, as defined in Meade. However, although the trial court told the jury that all

involved were “very uncomfortable” with proceeding without Harris present, defense

counsel did not object to the trial court’s decision to proceed with the trial. Accordingly,

we must review Harris’s claim for plain error.

{¶ 45} We further emphasize that, unlike the defendant in Meade, Harris was not

tried in absentia. While he missed jury selection, Harris attended the remainder of his

jury trial, including the prosecutor’s opening statement (defense counsel deferred and

later waived his opening statement), the State’s case-in-chief, his own defense case
 -18-

during which he testified, closing statements, jury instructions, and the pronouncement of

the verdicts. Harris’s defense counsel participated in the entirety of the trial.

{¶ 46} Moreover, we agree with the State’s argument that Harris invited the trial

court’s error due to his deliberate refusal to attend the jury selection portion of trial.

Under the invited error doctrine, an appellant cannot attack a judgment for errors

committed by himself or herself, for errors that the appellant induced the court to commit,

or for errors into which the appellant either intentionally or unintentionally misled the court,

and for which the appellant was responsible. State v. Keeton, 2d Dist. Montgomery No.

29535, 2023-Ohio-1230, ¶ 14, citing State v. Minkner, 194 Ohio App.3d 694, 2011-Ohio-

3106, 957 N.E.2d 829, ¶ 24 (2d Dist.).

{¶ 47} In its appellate brief, the State points to State v. Adams, 12th Dist. Fayette

No. CA95-05-014, 1996 WL 31151 (Jan. 29, 1996), for its contention that invited error

applies in this case. In Adams, the defendant refused to leave his cell for jury selection,

and the trial court proceeded in the defendant’s absence. After jury selection was

completed, the court took a recess; Adams was present when court resumed. On

appeal, the Twelfth District upheld Adams’s conviction. It noted that Adams “was fully

aware of his right to be present and that jury selection was part of the trial, and yet he

refused to be present for jury selection. * * * Appellant did not appear until noon, the time

appellant was aware that the jury selection would have been completed.” Id. at *2. The

appellate court considered trial in Adams’s absence to be invited error. It concluded that

the trial court had not abused its discretion in proceeding with jury selection, as Adams’s

deliberate absence constituted a knowing and voluntary waiver of his right to be present.
 -19-

Id. at *3, citing United States v. Tortora, 464 F.2d 1202 (2d Cir.1972).

{¶ 48} Adams was rendered prior to Meade, but other jurisdictions applying

analogous provisions to Crim.R. 43 have similarly applied the invited error doctrine when

faced with a defendant who refused to leave his or her cell to attend trial. See, e.g.,

United States v. Perkins, 787 F.3d 1329 (11th Cir.2015); State v. Howze, 85 Cal.App.4th

1380 (2001) (“a defendant who refuses to come to court under such circumstances is

estopped to assert that the trial improperly commenced in his absence.”). Moreover,

courts have generally found a defendant’s obstructive behavior to avoid attending trial to

be a waiver of their right to physical presence. E.g., California v. Venancio, Cal.App.No.

B320236, 2023 WL 3365593 (May 11, 2023); State v. Jefferson, __ N.C.App. __, 886

S.E.2d 180 (2023) (“Defendant, though his actions, waived his right to be present during

a portion of trial by actively refusing the trial court’s repeated offers for Defendant to attend

trial made during multiple colloquies between Defendant and the trial court.”).

{¶ 49} In one egregious case, the defendant, a so-called sovereign citizen, spoke

with family members prior to trial, trying to understand how not to be present for his federal

criminal trial. Perkins. In a recorded jail phone call, he told his mother that he planned

to act crazy to obstruct the proceedings. On the first day of trial, Perkins refused to come

out of his holding cell and threatened that if the marshals tried to force him to go to the

courtroom, he would go “kicking and screaming.” The district judge discussed at length

with a courtroom deputy, Perkins’s lawyer, and the prosecutor whether to have the

marshals bring Perkins to the courtroom. The court considered alternative audio and

video arrangements that would enable Perkins to observe the trial if he was not willing to
 -20-

attend.

{¶ 50} After many failed attempts to persuade Perkins to enter the courtroom so

that the court could begin jury selection, the trial judge decided to bring the courtroom to

him. The judge, counsel for the parties, and a court reporter went to an interview room

in the holding area to discuss the situation with Perkins on the record. The district court

noted that “a transcript cannot adequately convey the threatening demeanor of the

defendant nor the rage that he exhibited throughout.” United States v. Perkins, N.D. Ga.

No. 1:10-cr-97-1-JEC-LTW, 2013 WL 3820716, *6 (July 23, 2013). The judge told

Perkins that she wished he would reconsider his refusal to peaceably come to the

courtroom, and she explained the process that would be used if he would not. Perkins

refused to attend, and the trial proceeded in his absence. After the first day of trial,

Perkins was “quite euphoric, apparently believing that he had outsmarted everyone”; he

boasted to his mother how he had avoided going into the courtroom. Id. at *8.

{¶ 51} Perkins later sought a new trial on the ground that he had not been

physically present for voir dire, as required by Fed.R.Crim.P. 43(a). The trial court

denied the motion, stating that trial had begun when the court conducted proceedings in

the lock-up interview room prior to jury selection. Id. at *15. (We recognize that this

interpretation of when trial commences differs from Meade.) The court further concluded

that, “[b]ased on Perkins’ repeated assertions that he did not wish to participate in his

trial, as well as recordings revealing Perkins’ intention to trick the Court and thereby void

any subsequent conviction, * * * Perkins invited any Rule 43 error that may have occurred.

Further, neither he nor his attorney objected at any time to the procedure that the Court
 -21-

followed.” Id. at 22.

{¶ 52} The Eleventh Circuit affirmed. It emphasized that “[t]he rights that the

Constitution provides to a criminal defendant are meant as a shield, not a sword, and the

Federal Rules of Criminal Procedure provide a framework for the fair and efficient

administration of all criminal cases.” Perkins, 787 F.3d at 1338. As for Perkins’s

behavior, the circuit court agreed that he had invited any Crim.R. 43 error:

A criminal defendant who engages in this kind of obstructive behavior does

so at his own peril. The system that Mr. Perkins attempted to disrupt is

designed to protect not only his rights but the rights of all defendants to the

fair administration of the proceedings against them. A district judge cannot

permit a single defendant to jeopardize the whole system. We find no

readily apparent reversible error in the district judge’s decision * * * to

conduct the trial without Mr. Perkins in the courtroom, but we do not pause

long to consider these issues because we find that Mr. Perkins invited any

error that the district court may have committed. Therefore, we reject Mr.

Perkins’s * * * argument that the district court violated Rule 43.

Id. at 1339.

{¶ 53} Returning to Harris’s case, the record establishes that Harris was well

aware that his trial was to begin on the morning of July 27, 2022. The trial court had

issued a scheduling order on May 20, 2022, stating that Harris’s jury trial was set for 9:00

a.m. on July 27, 2022. In addition, the trial court discussed the upcoming trial with Harris

during the July 26, 2022 hearing on defense counsel’s motion to withdraw. At the
 -22-

conclusion of that hearing, the court told Harris: “I’ll see you tomorrow morning at 9

o’clock. We’ll pick a jury and they will decide whether or not you’re guilty. That’s how

this works.” July 26, 2022 Hrg. Tr. at 9.

{¶ 54} Harris nevertheless refused to leave the holding cell and come into the

courtroom on the morning of trial. The trial court’s initial remarks to the jury, given at

9:45 a.m., included an apology for keeping them waiting. Prior to the beginning of voir

dire, the court indicated that Harris understood that he had a right to attend the trial and

that he could enter the courtroom at any time. Despite this information, Harris would not

come into the courtroom. The courtroom deputy checked with Harris five or six times

that morning to see if he wanted to appear, and defense counsel spoke with Harris during

recesses. It is clear that Harris’s absence was a deliberate choice. And while this

record does not include the level of obstruction and threat of physical violence that existed

in Perkins, we find no plain error in the trial court’s decision to commence the trial in his

absence, given Harris’s refusal to leave the holding cell and to be physically present for

trial.

{¶ 55} We also do not fault the trial court for failing to obtain Harris’s presence by

force. As stated by the district court in Perkins:

For sure, a court could require the marshals to use whatever force is

necessary to physically compel these resisting defendants into submission,

and into the courtroom. But where there is an alternative, this does not

seem like a very good practice either for the defendants who could be

injured, or for the marshals, who could also get hurt and who could well
 -23-

become defendants in a § 1983 suit. Nor is it a good idea for the court

system. Trials should not become the judiciary’s version of the Jerry

Springer show. Besides, requiring that a manacled, shouting defendant

make a one-minute cameo appearance before aghast jurors, who probably

had anticipated a speck more dignity in their federal jury service, seems to

be a high price to pay to satisfy one rather indefinite phrase in Rule 43:

“initially present.”

Perkins, N.D. Ga. No. 1:10-cr-97-1-JEC-LTW, 2013 WL 3820716, at *21.

{¶ 56} We caution that our conclusion should not be read as permission to

commence a trial, at the earliest opportunity, when a defendant expresses reluctance to

leave his or her cell for trial. Trial courts should make every reasonable effort to obtain

a recalcitrant defendant’s cooperation, and we encourage trial courts to make a detailed

record of their efforts and of the defendant’s verbal and physical behavior. Of course,

courts retain the option of continuing the trial date if it appears that the defendant’s future

attendance can be obtained.

{¶ 57} On the record before us, we cannot conclude that the trial court committed

plain error in commencing the trial after Harris refused to leave the holding cell. Rather,

Harris invited the Crim.R. 43(A) error when he refused to leave his cell. Harris’s first

assignment of error is overruled.

IV. Conclusion

{¶ 58} The trial court’s judgment will affirmed.

.............
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TUCKER, J. and HUFFMAN, J., concur.