[Cite as State v. Harbut, 2024-Ohio-4811.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : Appellee : C.A. No. 2024-CA-14 : v. : Trial Court Case No. 23-CR-0636 : JULIUS HARBUT : (Criminal Appeal from Common Pleas : Court) Appellant : :
...........
OPINION
Rendered on October 4, 2024
CHRISTOPHER BAZELEY, Attorney for Appellant
ROBERT C. LOGSDON, Attorney for Appellee
.............
HUFFMAN, J.
{¶ 1} Julius Harbut appeals from his conviction, following a jury trial, on one count
of having weapons while under disability and one count of tampering with evidence. He
argues that his convictions were supported by insufficient evidence and were against the -2-
manifest weight of the evidence, that the prosecutor engaged in misconduct, that his right
to allocution was violated, that jail-time credit was not properly imposed, and that the trial
court’s order of forfeiture of a gun was improper.
{¶ 2} We agree that jail-time credit was not properly imposed, and we reverse that
portion of the judgment and remand for proper imposition of jail-time credit. We also
agree that the forfeiture was improper because the jury did not make a finding that the
weapon was subject to forfeiture, and we vacate that portion of the judgment. In all other
respects, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶ 3} The charges against Harbut arose from an altercation that occurred on the
morning of September 11, 2023, at the home of Harbut’s former girlfriend, A.O., after she
and Harbut had spent the previous day and evening together. At around 5:00 a.m.,
Harbut and A.O. got into an argument and physical altercation. Harbut left A.O.’s home
with a Taurus 9 mm handgun and A.O.’s double-bladed knife, under circumstances that
were disputed at trial. Law enforcement officers who responded to the scene found the
weapons a few houses away under a car.
{¶ 4} Harbut was indicted on September 19, 2023, on one count each of having
weapons while under disability, tampering with evidence, felonious assault, and domestic
violence; the indictment included forfeiture specifications related to the Taurus 9 mm
handgun. Harbut pled not guilty.
{¶ 5} The jury trial occurred on February 6-7, 2024. As to the offense of having
weapons while under disability, the court instructed the jury on the defense of duress. -3-
Harbut was found guilty of having weapons while under disability and tampering with
evidence; he was found not guilty of felonious assault and domestic violence. The court
sentenced him to 36 months for having weapons while under disability and to 24 months
for tampering with evidence, to be served consecutively, for an aggregate term of 60
months. The court also ordered that the Taurus 9 mm weapon retrieved from the scene
be forfeited to the State.
{¶ 6} Before addressing Harbut’s five assignments of error, we will review the
evidence presented at trial.
Jury Trial
{¶ 7} A.O. testified that on September 11, 2023, she resided in Springfield, and
Harbut was her ex-boyfriend. They had previously resided together for a period of three
weeks while they were in a romantic relationship that lasted for 18 months. According
to A.O., Harbut was using methamphetamine at her home on the date of the incident. As
his supply ran low, Harbut told A.O. to go to the home of a neighbor, an alleged drug
dealer, and acquire some more drugs in exchange for a sexual favor. When A.O.
refused, Harbut grabbed her by both of her wrists and “stepped on [her] feet” while she
was sitting on her bed; she tried to push him away. When A.O. got loose from Harbut’s
grip, he stumbled and then picked up a 9 mm handgun that he had brought to her home
and laid by the bed. According to A.O., he “smacked” her on the side of her head and
face with the gun and kept doing so as she tried to get away. She stated that her stove
was near the door to her bedroom, and Harbut grabbed a frying pan from the stove and
hit her on the back of her head. A.O. ran to the front door and unlocked it. -4-
{¶ 8} According to A.O., Harbut then “came at” her with her “deceased brother’s
butterfly knife,” which had two blades, and he tried to stab her; they wrestled over the
knife. Harbut told A.O. to be quiet, threatened to kill her and her children (who were
upstairs) if she screamed, and told her that he had the gun in his pocket, although he did
not pull it out. As they struggled, A.O. got past Harbut, reached for her phone that was
“hidden by the bathroom,” grabbed the phone, got out the door, and called 911. She
stated that Harbut also “ran out the door with the gun and knife.” A.O. testified that she
had not harmed Harbut during the struggle and that she had not sustained any injuries
from the knife. She also testified that she had been sober and lucid and had not used
any illegal drugs or consumed any alcohol.
{¶ 9} Security camera video from the night of the incident was played for the jury.
As the video played, A.O. identified Harbut walking in front of her home; she stated that
she had been on the phone with law enforcement at the time. A recording of A.O.’s 911
call was also played for the jury.
{¶ 10} On cross-examination, A.O. testified that she is drug tested monthly
because she is prescribed Percocet for back and stomach problems, and that she is also
prescribed medication for depression. She stated that the altercation occurred after she
and Harbut had “laid in bed all day” and through the evening. According to A.O., they
began to argue after she told Harbut to leave. She denied that the gun was hers or
providing the serial number of the gun to the police, stating that Harbut always carried
that gun.
{¶ 11} Several officer of the Springfield Police Department testified at trial. Officer -5-
Joshua Emory testified that he was dispatched to A.O.’s home on September 11, 2023,
on a report of a male subject outside with a gun who had assaulted a female victim.
Emory arrived on scene with Officer Chris Kitchen. Harbut was outside the home and
cooperated when officers told him to put his hands up; without being asked, he advised
officers that he did not have any weapons. Harbut was placed in a cruiser. After being
advised of his rights, Harbut agreed to speak to the officers.
{¶ 12} According to Emory, Harbut related that he had been visiting A.O., “hanging
out and getting high together, having fun,” until they got in an argument about money and
“some other small things.” Harbut told Emory that A.O. had grabbed the knife and came
at him with it, then he had grabbed both of her wrists. Emory testified that Harbut had a
cut on one of his arms. Emory had had no contact with A.O. before speaking with Harbut.
{¶ 13} While in the cruiser with Harbut, Emory learned via a radio transmission that
other officers had located a gun and knife underneath a car up the street. Emory testified
that Harbut overheard the communication regarding the weapons, “hesitated for a minute,
paused, and then . . . started telling [Emory] a story again.” According to Emory, Harbut
stated that A.O. had had the gun and that he had taken it from her; when Harbut saw that
A.O. was calling the police, he wiped his fingerprints off the gun and put it under a car
because he knew he was not allowed to have the gun. Harbut told Emory that A.O. had
hit him with a frying pan, but not very hard. When a medic arrived, a small bandage was
placed on the cut on Harbut’s arm, and he was taken to the police station.
{¶ 14} Emory reiterated that Harbut had changed his story during their
conversation. According to Emory, after Harbut learned that the weapons had been -6-
located, his story about his injuries and what had happened in the house changed.
Harbut had not mentioned a gun until after the radio transmission, and then he indicated
that the gun belonged to A.O. Emory stated that he did not know if Harbut changed his
story due to intoxication or if he was deliberately “making things up.” Emory stated that
A.O. did not appear to be intoxicated.
{¶ 15} Officer Chris Kitchen testified that he and Emory had responded to A.O.’s
address on a report of a male assaulting a female with a knife and a gun. Kitchen spoke
with A.O. and described her as “really upset and emotional.” Kitchen observed some
swelling to her left eye, bruises and redness around her wrists, and “some blood splatter”
on her hands and clothes. A.O. did not appear to be under the influence of any alcohol
or illegal substances, and her story was consistent throughout their conversation.
{¶ 16} Officer Antonia Turner was dispatched to A.O.’s home on September 11,
2023, on a report of a man and woman fighting and “the female was hit in the head with
a firearm.” Turner took photos of the scene, including A.O.’s injuries, which she identified
at trial. Turner stated that A.O. had not appeared to be under the influence. She
identified a photo of the knife and gun under the vehicle where they were found, and she
testified that the firearm was loaded when it was found.
{¶ 17} Officer Ashley Walter testified that she responded to A.O.’s address on
September 11 and was briefed by other officers about searching for a gun and firearm.
Walter looked in the bed of a pickup truck in front of A.O.’s home and then proceeded up
the street “just a couple houses” and located “a small handgun and a Batman knife thrown
underneath a gold Honda Accord.” She identified photos of the weapons under the -7-
vehicle as they were when she found them.
{¶ 18} Sergeant Doug Pergram, the supervisor of the property room, testified that
his responsibilities include operability testing on submitted firearms. Pergram performed
an operability test on the gun retrieved from the scene and determined it was operable.
He described the knife retrieved from the scene as a “black Batman pocket knife with [a]
double blade.”
{¶ 19} At the conclusion of the State’s case, it submitted copy of a judgment entry
reflecting that Harbut had been convicted of possession of cocaine on December 17,
2015.
{¶ 20} Defense counsel moved for an acquittal on the charges of domestic
violence and having weapons while under disability. The court overruled the motion.
{¶ 21} The defense then presented its case. Harbut testified that he was at A.O.’s
home for at least 10 hours before the altercation and that A.O.’s children were upstairs
during that time. He stated that he and A.O. were “[h]anging out, doing drugs, fooling
around.” According to Harbut, A.O. was “doing meth” with him and drinking alcohol. He
stated that he and A.O. got into an argument around 4:45 a.m. “over past discrepancies”
in their relationship and money that had allegedly been stolen from Harbut by A.O.
According to Harbut, as the argument escalated, A.O. told him that she was going to
shoot him in the face, he told A.O. that he was going to leave, and she said, “no, you’re
not leaving.” At the time, they were in A.O.’s bedroom. Harbut testified that he knew
that A.O. had a gun.
{¶ 22} Harbut testified that, when he tried to leave, A.O. “was already on [him] with -8-
a knife.” He did not know where A.O. had gotten the knife. Harbut grabbed her wrists
to prevent her from stabbing him. Harbut stated that they “tussled,” A.O. dropped the
knife, and he tried to calm her down; he didn’t realize at first that he had been cut. Harbut
pushed A.O. onto the bed and tried to pick up the knife. According to Harbut, A.O. “went
for the gun,” so he “jumped on her, grabbed her and got the gun.”
{¶ 23} Harbut testified that he ran to the kitchen door with the knife and the gun.
The door was locked and he tried to unlock it. A.O. ran to the sink, grabbed a skillet, and
hit Harbut with it. Harbut testified that he slapped A.O., and she “started going crazy
again.” He unlocked the door and ran out with the knife and gun. He testified that he
took the weapons because he was afraid to leave them with A.O. and was in fear for his
life. Harbut stated that he ran to nearby neighbors’ homes, “trying to get some
witnesses,” to no avail.
{¶ 24} According to Harbut, he “went, threw the knife and the gun at one of the
houses over there,” then went back to A.O.’s home to try to “talk to her some sense, calm
her down” and also to get his phone and maybe a ride to his car. Harbut stated that he
hid the weapons to keep them away from A.O. According to Harbut, he did not know
that A.O. had called the police until he returned to her home without the weapons.
Harbut identified himself outside A.O.’s home on the surveillance video; he stated that he
had already disposed of the weapons and returned to A.O.’s home at that point, and he
wanted A.O. to drive him to his vehicle.
{¶ 25} Harbut testified that the series of events began when he encountered A.O.
on September 10, 2023. He was in his vehicle, and she was following him in her car. -9-
Harbut testified that he parked his car and got into A.O.’s car with her. He denied that
he did so because he was too intoxicated to drive. Harbut stated that they went to a
couple of hotels, but the hotels were too expensive, so they went to A.O.’s home, where
they spent the rest of the day and evening until the altercation.
{¶ 26} Harbut testified that he “could have walked off” when he learned that A.O.
had called the police, but he remained at the scene because he hadn’t done anything
wrong. He stated that the police arrived with “guns drawn and very aggressive,” so he
got on his knees, not knowing what A.O. had reported. Harbut testified that he
cooperated in speaking to Emory, but he acknowledged that he was intoxicated at the
time. He did not remember telling Emory that he had tried to wipe his fingerprints from
the gun, and he did not believe that he had attempted to do so. Harbut acknowledged
having a prior drug conviction. He denied hitting A.O. with a frying pan or the gun, but
he admitted slapping her as he tried to leave the residence in an attempt to protect himself
and get her off of him. On cross-examination, Harbut denied owning the gun.
{¶ 27} The surveillance video was less than a minute in length and was angled
from A.O.’s front porch toward the street. In the video, Harbut appeared from the left
side before the police arrived, walking past A.O.’s home. He did not appear to be
agitated. A.O., who testified that she was on the phone with police in her doorway at the
time, can be heard telling Harbut that he was going to jail; he replied that no one was
going to jail. Harbut then asked A.O. for a ride to his car. In the 911 call, A.O. told
dispatch that Harbut had the knife in his hand and the gun in his pocket. -10-
Assignments of Error and Analysis
{¶ 28} Harbut’s first assignment of error is:
HARBUT’S CONVICTIONS FOR HAVING WEAPONS UNDER
DISABILITY AND TAMPERING WITH EVIDENCE ARE NOT SUPPORTED
BY LEGALLY SUFFICIENT EVIDENCE OR THE WEIGHT OF THE
EVIDENCE.
{¶ 29} Regarding the weapons while under disability conviction, Harbut asserts
that he established at trial that A.O.’s threatening conduct and statements caused him to
fear for his safety such that he was “compelled” to react while under duress. According
to Harbut, he “only came into possession of the firearm in order to protect his own life.”
He asserts that he took the gun and knife from A.O. and hid them outside to protect
himself and that there was no evidence to corroborate A.O.’s testimony that the firearm
belonged to him or that he struck her with it. He asserts that the jury “clearly rejected”
A.O.’s version of events when it acquitted him of felonious assault and domestic violence,
so the jury “must have lost its way” in finding that he was not in possession of the gun
under duress.
{¶ 30} Regarding tampering with evidence, Harbut cites his testimony that he hid
the gun and the knife under the car to keep them from A.O., not from the police, and that
he did not know that A.O. had called the police until after he hid the weapons. According
to Harbut, the surveillance video corroborated his testimony, and A.O. testified that she
called the police after Harbut left the apartment.
{¶ 31} The State responds that Harbut’s own admissions established the offense -11-
of having weapons while under disability: he advised the officers on the scene that he
was not allowed to have a gun and testified at trial to a prior drug conviction. The State
asserts that the jury clearly did not believe Harbut’s version of events when it came to the
defense of duress. According to the State, Harbut’s argument ignores the multiple
inconsistencies in his statements to the police regarding the gun, and Harbut’s acquittal
on felonious assault and domestic violence did not impugn A.O.’s credibility such that
duress was established.
{¶ 32} Regarding the tampering with evidence conviction, the State asserts that
Harbut admitted that he wiped the gun of fingerprints and hid it, and he knew an
investigation was inevitable because he was inside the apartment when A.O. called
police; these factors satisfied the elements of tampering with evidence. Harbut replies
that a defendant may dispute the facts as asserted by the State and, alternatively, argue
a defense.
Standard of Review
{¶ 33} In State v. Thompkins, 78 Ohio St.3d 380 (1997), the Supreme Court of
Ohio clarified the distinction between appellate review of the sufficiency of the evidence
and appellate review of the weight of the evidence. A sufficiency of the evidence
argument relates to whether the State “presented adequate evidence on each element of
the offense to allow the case to go to the jury or sustain the verdict as a matter of law.”
State v. Wilson, 2009-Ohio-525, ¶ 10 (2d Dist.), citing Thompkins. “In essence,
sufficiency is a test of adequacy. Whether the evidence is sufficient to sustain a verdict
is a question of law.” Thompkins at 386. -12-
An appellate court's function when reviewing the sufficiency of the evidence
to support a criminal conviction is to examine the evidence admitted at trial
to determine whether such evidence, if believed, would convince the
average mind of the defendant's guilt beyond a reasonable doubt. The
relevant inquiry is 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.
Wilson at ¶ 11, citing State v. Jenks, 61 Ohio St.3d 259 (1991). In other words, on review
for sufficiency, courts are to assess not whether the State's evidence is to be believed,
but whether, if believed, the evidence would support a conviction. Thompkins at 390.
{¶ 34} A weight of the evidence argument, on the other hand, challenges the
believability of the evidence and asks which of the competing inferences suggested by
the evidence is more believable or persuasive. Wilson at ¶ 12, citing State v. Hufnagel,
1996 WL 501470, *3 (Sept. 6, 1996).
[T]he court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury lost its
way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.
Wilson at ¶ 13, citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). “In order
to find that a manifest miscarriage of justice occurred, an appellate court must conclude
that a guilty verdict is ‘against,’ that is, contrary to, the manifest weight of the evidence -13-
presented.” Id. at ¶ 14, citing see State v. McDaniel, 1998 WL 214606 (2d Dist. May 1,
1998).
{¶ 35} “Although sufficiency and manifest weight are different legal concepts,
manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that
a conviction is supported by the manifest weight of the evidence necessarily includes a
finding of sufficiency.” State v. Flores-Lopez, 2017-Ohio-690, ¶ 49 (2d Dist.), citing State
v. McCrary, 2011-Ohio-3161, ¶ 11 (10th Dist.); accord State v. Robinson, 2015-Ohio-
1167, ¶ 17 (2d Dist.). As a result, “a determination that a conviction is supported by the
weight of the evidence will also be dispositive of the issue of sufficiency.” Robinson at
¶ 17, citing State v. Braxton, 2005-Ohio-2198, ¶ 15 (10th Dist.).
{¶ 36} The credibility of the witnesses and the weight to be given to their testimony
are primarily matters for the trier of fact to resolve. Wilson at ¶ 15, citing State v. DeHass,
10 Ohio St.2d 230 (1967).
Because the factfinder . . . has the opportunity to see and hear the
witnesses, the cautious exercise of the discretionary power of a court of
appeals to find that a judgment is against the manifest weight of the
evidence requires that substantial deference be extended to the factfinder's
determinations of credibility. The decision whether, and to what extent, to
credit the testimony of particular witnesses is within the peculiar
competence of the factfinder, who has seen and heard the witness. . . .
State v. Lawson, 1997 WL 476684, *4 (2d Dist. Aug. 22, 1997). Thus, we will not
substitute our judgment for that of the trier of fact on the issue of witness credibility “unless -14-
it is patently apparent that the trier of facts lost its way in arriving at its verdict.” Wilson
at ¶ 17, citing State v. Bradley, 1997 WL 691510, *4 (2d Dist. Oct. 24, 1997).
1. Having Weapons while under Disability
{¶ 37} R.C. 2923.13 proscribes having weapons while under disability and states:
Unless relieved from disability under operation of law or legal process, no
person shall knowingly acquire, have, carry, or use any firearm or
dangerous ordnance, if any of the following apply:
...
(3) The person is under indictment for or has been convicted of any felony
offense involving the illegal possession, use, sale, administration,
distribution, or trafficking in any drug of abuse . . .
{¶ 38} “In order to establish the defense of duress, the defendant must
demonstrate that he was compelled to commit the crime under threat, by another person,
of imminent death or serious bodily injury.” State v. Longstreth, 2022-Ohio-1825, ¶ 12
(2d Dist.), citing State v. Lawson, 2008-Ohio-1311, ¶ 19 (2d Dist.), citing State v. Elijah,
2000 WL 968781 (2d Dist. July 14, 2000). “ ‘The force used to compel the actor’s
conduct must remain constant, controlling the will of the unwilling actor during the entire
time he commits the act, and must be of such a nature that the actor cannot safely
withdraw.’ ” Id., citing Lawson, citing State v. Getsy, 1998-Ohio-533. “Although the
defendant must subjectively believe that he is being threatened with imminent death or
serious bodily harm if he does not commit the crime, that belief must be objectively
reasonable based on the evidence.” Id., citing Elijah; State v. Doakes, 2002-Ohio-6995 -15-
(2d Dist.).
{¶ 39} Harbut admitted his prior felony drug offense, and the judgment entry of
conviction was admitted into evidence. In addition, A.O. testified that Harbut owned the
gun and brought it to her home before the altercation, and that he “always carrie[d] that
gun.” Officers Emory and Kitchen testified that A.O. did not appear to be intoxicated,
and Kitchen testified that A.O.’s version of events was consistent throughout his
encounter with her. The jury obviously credited A.O.’s testimony on the disputed facts,
and we defer to the jury’s credibility assessment.
{¶ 40} Officer Emory’s testimony cast doubt on Harbut’s credibility because he said
that Harbut had changed his story as the events unfolded. The jury could have
reasonably concluded that Harbut did so in a self-serving manner: he initially told Emory
that he did not have any weapons, until he learned that the weapons had been found;
only then did he admit to having handled the weapons, knowing that he was not allowed
to have a gun, and to attempting to remove his fingerprints from the gun. Emory testified
that it was unclear to him whether Harbut was “making things up” or changing his story
due to his intoxication.
{¶ 41} Based on this evidence, the jury was free to reject the defense of duress.
In other words, the jury was free to discredit Harbut’s testimony that he had been
compelled to remove a weapon belonging to A.O. from her home under threat of imminent
death or serious bodily injury by her. Harbut’s calm demeanor in the video and his
request for a ride to his car before police arrived did not support his assertion that he was
in fear for his life from a threat from A.O. only moments before. Contrary to his -16-
assertions, the video was not exculpatory. There was sufficient evidence to support
Harbut’s conviction for having weapons while under disability, and that conviction was not
against the manifest weight of the evidence.
2. Tampering with Evidence
{¶ 42} R.C. 2921.12 proscribes tampering with evidence: “(A) No person, knowing
that an official proceeding or investigation is in progress, or is about to be or likely to be
instituted, shall do any of the following: (1) Alter, destroy, conceal, or remove any record,
document, or thing, with purpose to impair its value or availability as evidence in such
proceeding or investigation . . .”
{¶ 43} As noted above, A.O. testified that Harbut removed his gun from her home.
Emory testified that Harbut told him he “saw that [A.O.] was calling the police” and
admitted wiping off the gun and hiding it because he was aware he was under disability.
We find that the evidence supported the conclusion that Harbut knew an investigation
was likely to be instituted and that he acted to remove the gun and impair its availability
as evidence; therefore, his conviction for tampering with evidence is supported by
sufficient evidence and was not against the manifest weight of the evidence.
{¶ 44} Harbut’s first assignment of error is overruled.
{¶ 45} Harbut’s second assignment of error is:
THE STATE ENGAGED IN PROSECUTORIAL MISCONDUCT
WHEN IT MISCHARACTERIZED THE EVIDENCE DURING CLOSING
ARGUMENTS.
{¶ 46} Harbut directs our attention to the following remarks in the State’s closing -17-
argument regarding the offense of tampering with the evidence.
Mr. Harbut wants you to believe that he had no idea that 911 was called
when he hid those weapons. Really? Why did you hide them under a car
and try to wipe off the gun? Why did you do that? And listen to the 911
call because his voice is on there.
If you didn’t know she was calling 911, you’re in the room when she’s doing
it. You’re there. You’re around. You know.
{¶ 47} According to Harbut, the evidence conclusively showed that he went outside
with the gun and knife and only walked back into the apartment to discover A.O. on the
phone with the police after he had hid the weapons. In other words, he claims that the
State mischaracterized the evidence and misled the jury into believing that he knew an
investigation would ensue -- “one of the most difficult elements” of a tampering with
evidence for the State to prove.
{¶ 48} The State responds that Harbut did not object to the portion of the closing
argument set forth above, so this error is subject to plain error review. The State also
asserts that Harbut mischaracterizes A.O.’s testimony and considers his own “as gospel.”
According to the State, the “prosecutor’s argument on this point is not likely to have
changed the outcome.”
{¶ 49} It is true that Harbut failed to object to the prosecutor's remarks in closing
argument, “thereby waiving all but ‘plain error.’ ” State v. Twitty, 2002-Ohio-5595, ¶ 28
(2d Dist.), citing State v. Bey, 85 Ohio St.3d 487, 494 (1999). “Plain error does not exist
unless it can be said that but for the error, the outcome of the trial would clearly have -18-
been different.” Id., citing State v. Wickline, 50 Ohio St.3d 114 (1990). “With respect to
prosecutorial misconduct, the test is whether the remarks or conduct were improper and,
if so, whether it prejudicially affected substantial rights of the defendant.” Id., citing State
v. Hartman, 93 Ohio St.3d 274, 294; State v. Lott, 51 Ohio St.3d 160, 165 (1990).
{¶ 50} The trial court instructed the jury that closing arguments are not evidence.
Moreover, the remarks about the 911 call were consistent with Officer Emory’s testimony
that Harbut advised him that he had wiped down the gun and hid it with the knife because
he knew that A.O. was calling the police and he was aware that he was under disability.
Accordingly, we find that the remarks were not improper. Having reviewed the entire trial
transcript and concluded that Harbut’s convictions were supported by sufficient evidence
and not against the manifest weight of the evidence, we cannot conclude that the outcome
of the trial would have been different in the absence of the remarks quoted above. In
other words, we see no error, much less plain error. Harbut’s second assignment of
error is overruled.
{¶ 51} Harbut’s third assignment of error is:
THE TRIAL COURT VIOLATED HARBUT’S RIGHT TO ALLOCUTE
AT THE APPROPRIATE TIME AS REQUIRED BY CRIM.R. 32.
{¶ 52} Harbut argues that Ohio law clearly provides that the defense “gets the last
word before sentence is imposed,” not the State, and the State got the last word at his
sentencing, introducing information to which he did not have an opportunity to respond.
He argues that he is entitled to be resentenced. The State concedes that the allocution
was improper and that the case should be remanded for a resentencing hearing. We -19-
reject the parties’ conclusion that the allocution was improper for the following reasons.
{¶ 53} “Pursuant to Crim.R. 32(A)(1), at the time of sentencing, the trial court must
‘[a]fford counsel an opportunity to speak on behalf of the defendant and address the
defendant personally and ask if he or she wishes to make a statement in his or her own
behalf or present any information in mitigation of punishment.’ ” State v. Brown, 2022-
Ohio-4314, ¶ 7 (2d Dist.). “ ‘If the court imposes sentence without affording the
defendant an opportunity to allocute, then resentencing is required unless the error was
invited or harmless.’ ” Id., quoting State v. Beasley, 2018-Ohio-493, ¶ 22, citing State v.
Osie, 2014-Ohio-2966, ¶ 179.
{¶ 54} “A trial court errs when it does not let the defendant address new information
introduced and considered by the trial court at sentencing.” (Citations omitted.) State
v. Yates, 2011-Ohio-3619, ¶ 21 (2d Dist.). “The error is presumed prejudicial, because
the defendant is prevented from speaking at the appropriate time.” Id., citing State v.
Sanders, 2003-Ohio-1163, ¶ 13-16 (8th Dist.) (the trial court erred in not allowing
defendant to address evidence introduced after defendant’s statement, which the trial
court considered before imposing sentence.)
{¶ 55} “Courts have found the prejudice presumption rebutted when the defendant
declined to speak at the proper time or the new evidence is extraneous.” Id. at ¶ 22,
citing State v. Storey, 2006-Ohio-3498, ¶ 40 (8th Dist.) “The error will also be harmless
when the defendant does not object to the new information or if the court’s reasons for
the enhanced sentence are unrelated to it.” Id., citing State v. Clark, 2006-Ohio-1421,
¶ 7 (3d Dist.). -20-
{¶ 56} The record reflects that, at sentencing, defense counsel spoke on Harbut’s
behalf and requested community control or a minimum sentence. Harbut then spoke
briefly and apologized. The State recommended 24 months on each count based upon
Harbut’s criminal history.
{¶ 57} The court addressed Harbut as follows:
Okay. Start with the jury didn’t believe you, Mr. Harbut, that you
were only in possession of that firearm out of necessity to protect yourself
and to protect others. The jury didn’t believe that. They found you guilty
of having weapons while under disability and so that’s what the Court is
going to sentence you on . . . . And that’s concerning to the Court that
somebody with your prior record is carrying a firearm. So that’s one thing.
Another thing is your prior record, aggravated burglary, first degree
felony, failure to comply, third degree felony, gross sexual imposition, either
a third of forth degree felony, possession of cocaine, criminal non-support,
possession of cocaine, failure to verify your change of address, aggravated
possession of drugs, and now having weapons while under disability, and
tampering with evidence.
Then as I look through your prior record and I’m looking at the
sentences you received, what jumps out at me is the fact that you’ve
committed all of these felony offenses and your punishment has been
relatively minimal. Community control for the aggravated burglary, I don’t
know what the circumstances were there but that’s somewhat shocking. -21-
Failure to comply, 15 months, that’s less than half of the maximum penalty.
Gross sexual imposition . . . and the possession of cocaine for a total of 18
months because those sentences ran concurrently with one another.
The criminal nonsupport, possession of cocaine, failure to verify your
change of address, 24 months which is somewhat significant but yet it ran
concurrently with the sentences for the other felonies so there you’re getting
a break for concurrent sentences. Aggravated possession of drugs,
community control, third degree felony, community control, so what I’m
looking at here is somebody that continues to commit serious criminal
offenses and the punishment is just not sufficient to get you to stop. You
want to say something about that?
THE DEFENDANT: Yes, sir. Yes, sir. Due to the fact that I was,
for lack of a better words, uneducated, maybe, and didn’t even know or was
probably educated in right or wrong and even if I, even if I spoke on the
aggravated burglary it was when I was 19 and I was arguing with a girl.
The guy that was with me had kicked her door. I stayed there. I was there
when the arguing, when the police came, didn’t even know that he had stole
a radio out of the house.
I didn’t even, and the laws had just changed which it would have
been a criminal trespass but the laws had just changed like a couple months
before in October and I did get a lenient sentence. I stayed out of trouble
for years and years before I even made another mistake fumbling through -22-
life - -
THE COURT: Okay. Hold on one second, Mr. Harbut.
THE COURT: Two years later you committed a failure to comply.
THE DEFENDANT: Yes.
THE COURT: So that’s not years and years of being a law abiding
citizen.
THE DEFENDANT: No, sir. I was not a law, I admit I was not a
law abiding citizen at that point, no. . . . There was times that I did get in
trouble. There’s nothing I can say. I mean, I got punished but this time I
definitely, I have, I know what the difference between right and wrong. I
have worked on myself. I have definitely, full of honesty now instead of
lying and manipulating.
I have lied and I am human but I am not out here committing criminal
acts. I am a tax paying citizen now. I own my own company. I paint.
Anywhere I can help anybody, provide any service, I do that. I am not the
same person that I used to be, like far from that person, you know. Yeah,
I did make a mistake that night, that 9/11 and I can admit that I was in
possession of a firearm. I shouldn’t have been.
Now, whatever sentence you imply on me, I do pray that it be lenient.
I will never, ever do that again. I am not the same person I used to be. I -23-
am trying to work on becoming self-aware and do the right thing in society
and become a productive member of society with every inch of me.
[PROSECUTOR]: Your Honor, the State feels the need to respond,
if I may, just briefly. Mr. Harbut just sat there and said that he is honest.
And the problem that the State has with that, Mr. Harbut, is that I’ve listened
to jail calls since this decision was handed down, since the jury reached a
decision in which Mr. Harbut stated on a jail call that, I was riding around
with the gun and it caught up with me, which means that when he was on
the stand testifying he was not being honest.
So if you are in treatment and you are in recovery and you are being
honest about what happened, how do you get up and perjure yourself?
The court then proceeded to impose consecutive sentences.
{¶ 58} There was no objection to the prosecutor’s comments about the jail phone
calls. Although Harbut was not given an opportunity to address the prosecutor’s remarks
about Harbut’s admissions on the jail calls that he had been in possession of the weapon,
Harbut had admitted to the court, “I did make a mistake that night, that 9/11 and I can
admit that I was in possession of a firearm. I shouldn’t have been.” In other words,
Harbut admitted committing the offense. As such, we conclude that Harbit could not
have been prejudiced by the State’s statements. Moreover, the court’s reasons for
imposing consecutive sentences were unrelated to the prosecutor’s remarks about the
jail phone calls. It was significant to the court that Harbut, with his lengthy criminal
history, was in possession of a firearm, falsely represented himself as law abiding for -24-
“years and years,” and that his multiple prior punishments were concurrent or lenient and
had failed to dissuade Harbut from further crime. In other words, the error was harmless.
Accordingly, Harbut’s third assignment of error is overruled.
{¶ 59} Harbut’s fourth assignment of error is as follows:
{¶ 60} THE TRIAL COURT FAILED TO CALCULATE HARBUT’S JAIL TIME
CREDIT AS REQUIRED BY R.C. 2929.19.
{¶ 61} Harbut acknowledges that he failed to object to the imposition of jail time
credit. He argues, however, that plain error is demonstrated. The State concedes error.
{¶ 62} Harbut is correct that he “waived all but plain error for purposes of appeal”
regarding jail time credit. State v. Litteral, 2024-Ohio-2092, ¶ 19 (2d Dist.), citing State
v. McDonald, 2015-Ohio-1911, ¶ 13 (1st Dist.). R.C. 2967.191 governs credit for
confinement while awaiting trial and commitment and requires the Ohio Department of
Rehabilitation and Correction (“ODRC”) to reduce a felony offender’s prison term “by the
total number of days that the prisoner was confined for any reason arising out of the
offense for which the prisoner was convicted and sentenced[.]” “Although R.C. 2967.191
imposes a duty on the [ODRC] to credit a prisoner for his or her pretrial confinement, it is
the trial court’s responsibility to make the factual determination as to the number of days
of confinement that a defendant is entitled to have credited toward his or her sentence.”
Litteral at ¶ 21, citing State ex rel. Rankin v. Ohio Adult Parole Auth., 2003-Ohio-2061,
¶ 7. “A defendant must be informed of the total number of days of jail-time credit to which
he or she is entitled at the time of sentencing, up to and including the sentencing date,
and such number must be included in the sentencing entry.” Id., citing R.C. -25-
2929.19(B)(2)(g)(i).
{¶ 63} Litteral further noted as follows:
Although the trial court erred in calculating Litteral's jail-time credit,
an inaccurate determination of jail-time credit “is not grounds for setting
aside the offender's conviction or sentence and does not otherwise render
the sentence void or voidable.” R.C. 2929.19(B)(2)(g)(iv). Crim.R. 36
provides that “[c]lerical mistakes in judgments, orders, or other parts of the
record, and errors in the record arising from oversight or omission, may be
corrected by the court at any time.” “The rule thus authorizes a trial court
to, at any time, enter judgment nunc pro tunc to the date of the original
conviction, correcting a mistake of fact, but not an error of law, in the jail-
time credit specified in a judgment of conviction.” State v. Gonzalez, 1st
Dist. Hamilton No. C-150582, 2017-Ohio-7301, ¶ 9. Accordingly, under
these circumstances, the trial court may remedy the error by issuing nunc
pro tunc judgment entries that reflect the correct number of days of jail-time
credit. State v. Davis, 2d Dist. Montgomery No. 27495, 2018-Ohio-4137,
¶ 17.
Id. at ¶ 26.
{¶ 64} Here, at sentencing, the court advised Harbut, “You will receive credit for
time spent in the Clark County Jail towards your sentence.” The judgment entry was
silent as to jail time credit. We conclude that the error here was more than the type of
clerical oversight contemplated by Crim.R. 36. The court did not inaccurately determine -26-
Harbut’s jail time credit; rather, it did not calculate it at all. Further, jail time credit accrues
for the period of time in confinement prior to sentencing, but not any time thereafter while
awaiting transport to the facility, and this distinction was not made clear to Harbut at
disposition. Harbut was merely advised that he would receive credit for time spent in jail.
See State v. Davis, 2018-Ohio-4137, ¶ 14 (2d Dist.) (“At the time of sentencing, the trial
court has no way of knowing how long it will take a defendant to be transported to prison
after the defendant has been sentenced; therefore, any days the defendant spends in
confinement while awaiting transportation to prison cannot properly be included in the trial
court's jail-time credit calculation.”) Given the trial court’s total failure to calculate jail time
credit, we conclude that the court must reduce the amount of Harbut’s credit to a number
of days and provide an opportunity for Harbut to be heard regarding this calculation.
Harbut’s fourth assignment of error is sustained.
{¶ 65} Harbut’s fifth assignment of error is:
THE TRIAL COURT ERRED WHEN IT ORDERED THE FIREARM
TO BE FORFEITED AS PART OF HARBUT’S SENTENCE.
{¶ 66} Harbut asserts that the jury failed to make a forfeiture finding for the 9mm
handgun. He further argues that the trial court failed to instruct the jury regarding the
forfeiture, include a forfeiture finding on the jury form, or give the jury any other opportunity
to determine whether the gun should be forfeited. According to Harbut, the evidence at
trial “strongly” suggested that A.O. owned the weapon and, in the absence of a “formal
finding” by the trier of fact that it belonged to him, the trial court “may have ordered the
forfeiture . . . in contravention of law.” The State concedes error, acknowledging that the -27-
absence of a forfeiture determination by the jury precluded the forfeiture.
{¶ 67} “In general, forfeiture of property is disfavored.” (Citations omitted.) State
v. Poirier, 2021-Ohio-1743, ¶ 25 (2d Dist.) “The State’s ability to seek forfeiture of
property is created by statute and, whenever possible, forfeiture statutes must be
construed to avoid forfeiture.” Id.
{¶ 68} R.C. 2981.03(A)(2) permits “[a] law enforcement officer [to] seize property
that the officer has probable cause to believe is property subject to forfeiture.” R.C.
2981.01(B)(13) defines property subject to forfeiture, and the definition includes
contraband. “ ‘A prosecuting attorney may then pursue forfeiture of seized property in a
criminal proceeding under R.C. 2981.04 . . .’ ” State v. Leet, 2021-Ohio-1334, ¶ 12 (2d
Dist.), quoting State v. Recinos, 2014-Ohio-3021, ¶ 21 (5th Dist.). R.C. 2941.1417
provides that property is not subject to forfeiture in a criminal case unless the indictment
charging the offense specifies certain information including a description of the property,
to the extent reasonably known at the time of filing. R.C. 2981.04 states that, if a person
is convicted of an offense and the indictment charging the offense contains a specification
covering property subject to forfeiture under R.C. 2981.02, “the trier of fact shall determine
whether the person’s property shall be forfeited.”
{¶ 69} Here, although the indictment contained a forfeiture specification for the
firearm, the jury did not determine whether the firearm was subject to forfeiture. The
court’s judgment entry, however, ordered that “the Taurus 9mm Model A2675 firearm is
forfeited to the State.” The trial court’s forfeiture order was contrary to the procedures
set forth in R.C. Chapter 2981. As such, Harbut’s fifth assignment of error is sustained. -28-
Conclusion
{¶ 70} For the reasons set forth above, Harbut’s convictions were supported by
sufficient evidence and were not against the manifest weight of the evidence;
prosecutorial misconduct is not demonstrated; and Harbut’s right to allocution was not
violated. The matter is reversed and remanded for the trial court to calculate Harbut’s
jail time credit, and the trial court’s forfeiture order is vacated. In all other respects, the
judgment of the trial court is affirmed.
EPLEY, P.J. and LEWIS, J., concur.