State v. Harrison

2020 Ohio 3817

• Court: Ohio Court of Appeals
• Decided: July 24, 2020
• Docket: 2019-CA-59
• Status: Published

Opinion

[Cite as State v. Harrison, 2020-Ohio-3817.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2019-CA-59 : v. : Trial Court Case No. TRD-1902283 : DE’ACAPONE T. HARRISON : (Criminal Appeal from Municipal Court) : Defendant-Appellant : :

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OPINION

Rendered on the 24th day of July, 2020.

JOSHUA LOYA, Atty. Reg. No. 0096462, Assistant Prosecuting Attorney, City of Fairborn, 510 West Main Street, Fairborn, Ohio 45324 Attorney for Plaintiff-Appellee

DE’ACAPONE T. HARRISON, Inmate No. A768-437, Southeastern Correctional Institution, 5900 B.I.S. Road, Lancaster, OH 43130 Defendant-Appellant, Pro Se

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

WELBAUM, J. -2-

{¶ 1} This case is before us on the pro se appeal of De’Acapone T. Harrison from

his convictions on two minor misdemeanors in the Fairborn Municipal Court: a window

tint violation (R.C. 4513.241), and traveling 72 miles per hour on a state route in a 60 mile

per hour zone, in violation of R.C. 4511.21(D)(2). According to Harrison, his convictions

should be set aside because the State failed to turn over discovery before trial, and the

trial court briefly delayed the trial to allow the State’s witness to arrive. Finally, Harrison

contends that he was deprived of the right to various information concerning why the

State’s witness was late to trial.

{¶ 2} After considering the record and the applicable law, we find Harrison’s

arguments without merit. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} On March 18, 2019, the State filed a traffic ticket in the Fairborn Municipal

Court, alleging that on March 16, 2019, Harrison had operated a 2005 Nissan northbound

on SR-4 at 72 miles per hour in a 60 miles per hour zone, in violation of R.C.

4511.21(D)(2). A window tint violation under R.C. 4513.241 was also alleged. The

ticket set a court date for March 29, 2019, and Harrison was not required to personally

appear.

{¶ 4} On March 29, 2019, Harrison appeared in court, pro se, pled not guilty, and

filed a demand for discovery. Trial was then set for April 9, 2019, at 9:45 a.m. Harrison

appeared for trial on that date and informed the magistrate that he had not received the

State’s discovery materials.

{¶ 5} Harris did not file the transcript of the hearing with the trial court or with our -3-

court, so we are without a record of the hearing. The magistrate’s decision, which was

issued the day of trial, indicates that Harrison moved to dismiss the case because he had

not received a copy of any video evidence. The State said it had mailed discovery to the

address that Harrison provided, but Harrison claimed he had not received it. At that time,

the bailiff made a copy of the discovery materials and gave them to Harrison. The

magistrate then offered Harrison a continuance of the trial, so that Harrison could have

sufficient time to review the discovery. However, Harrison rejected the offer.

{¶ 6} The magistrate’s decision further indicates that the trial was delayed for about

35 minutes because the citing officer, Trooper Wilson, had been detained while on the

road. Harrison moved to dismiss the case due to the delay, but the magistrate overruled

the motion because the delay was not unreasonable and Harrison was not prejudiced.

{¶ 7} After hearing the evidence, the magistrate found Harrison guilty of the

window tint violation and fined him $25, plus court costs. In a separate entry, the

magistrate found Harrison guilty of the speeding violation as well and imposed a $25 fine

plus court costs.

{¶ 8} Harrison filed an “appeal” (which the court interpreted as objections) from the

magistrate’s decision, and also requested a stay of the sentence until his appeals were

exhausted. In addition, Harrison asked that a transcript be made. The court granted

Harrison’s request for a stay and ordered that a video be provided to an independent

reporter, who would let Harrison know of the transcript cost. The court also informed

Harrison that unless he paid for the transcript, the case would be considered without it.

In response, Harrison attempted to file a poverty affidavit, but it was incorrect. After

assistance from the court, he filed the correct form on May 7, 2019, and the court then -4-

ordered the clerk to pay for the transcript.

{¶ 9} On June 24, 2019, Harrison filed a motion asking the court to correct the

transcript. The motion focused on the fact that the transcriber had incorrectly used the

wrong court caption on the first page and on the transcriber’s designation of certain

matters as “inaudible.” On July 1, 2019, the court overruled Harrison’s request that the

court listen to the audio tape and correct the transcript. The court commented that it

could not require someone (the transcriber) to hear things the person did not hear. The

court did note that it would deem the transcript amended to reflect the correct caption. In

the entry, the court also said: “The Court grants Defendant ten (days) from the date of

this Entry to file any supplemental objections to the Magistrate’s April 9, 2019 Decision,

along with the transcript.” (Emphasis added.) Entry, p. 2. The court also gave the

State 14 days from the filing of the objections to respond. Id.

{¶ 10} Harrison filed his supplemental objections on July 10, 2019, but did not file

the transcript. The State did not respond to the objections. On September 17, 2019,

the court filed an entry overruling the objections and finding Harrison guilty as charged.

The court then imposed sentences of $25 and court costs for each conviction.

{¶ 11} Harrison filed a notice of appeal on September 30, 2019. In addition, he

thereafter (one minute later) filed a motion objecting to the trial court’s judgment. The

trial court overruled that motion on October 2, 2019. No appeal was taken, at least as it

appears from the docketed record of this case.

Alleged Discovery Violations

{¶ 12} Harrison’s First Assignment of Error states that: -5-

The Trial Court Failed to Direct the State to Hand Over All

Discoverable Matter Before Holding Trial, Which Denied the Appellant

Rights Under the 5th and 14th Amendments Under Due Process, Equal

Protection of the Law in the Regards to Appellant[’]s Substantive and

Procedural Rights [and] Is a Constitutional Violation.

{¶ 13} Harrison contends that the case should have been dismissed because the

State failed to provide discovery prior to trial. As support, Harrison cites some cases

where judgments were reversed because the State failed to produce discovery to the

defendant. E.g., State v. South, 162 Ohio App.3d 123, 2005-Ohio-2152, 832 N.E.2d

1222, ¶ 8 (9th Dist.).

{¶ 14} Before addressing the merits of this argument, we note that no transcript of

the April 9, 2019 trial proceedings before the magistrate was filed either in the trial court

or on appeal. Ohio Crim.R. 19(D)(3)(b)(iii) provides, in pertinent part, that:

An objection to a factual finding, whether or not specifically

designated as a finding of fact under Crim.R. 19(D)(3)(a)(ii), shall be

supported by a transcript of all the evidence submitted to the magistrate

relevant to that finding or an affidavit of that evidence if a transcript is not

available. * * * The objecting party shall file the transcript or affidavit with the

court within thirty days after filing objections unless the court extends the

time in writing for preparation of the transcript or other good cause. If a

party files timely objections prior to the date on which a transcript is

prepared, the party may seek leave of court to supplement the objections.

(Emphasis added.) -6-

{¶ 15} Although the trial court told Harrison that he needed to file the transcript of

the April 9, 2019 trial, the court’s docket does not indicate that any transcript was ever

filed. The clerk did file a transcript with our court on January 2, 2020. A notation on the

envelope indicates that the transcript was being filed in three cases that Harrison was

appealing. The front page of the transcript indicates that it is for a hearing held on

September 24, 2019, and the listed case number is TRD-1902283 (the case number for

the case at hand).

{¶ 16} However, the trial court indicates in the body of the transcript that the cases

in question, while also involving Harrison, are Fairborn Municipal Court Case Nos.

CRB1809765 and CRB1900677. See September 24, 2019 Transcript, p. 4, 15, and 19.

Those cases involved two charges of possession of drug paraphernalia and two counts

of possession of marijuana. Because the State could not establish the marijuana

charges, it elected to withdraw them and proceed on the two paraphernalia charges. Id.

at p. 13, 16-17, and 20. After trial on those charges, the court found Harrison guilty and

imposed fines and court costs. Id. at p. 49-50. Those decisions are currently being

appealed in Greene App. Nos. 2019-CA-60 and 2019-CA-61.

{¶ 17} The front page of the transcript was obviously not correctly labeled, as the

transcript pertained to cases other than the case before us and to a trial held on

September 24, 2019, rather than April 9, 2019. Furthermore, there is no evidence that

a transcript was ever filed at the trial court level for this case, i.e., TRD1902283.

{¶ 18} Due to the lack of a transcript, “we have no record of the evidence presented

to the magistrate and the trial court * * * and we cannot review their factual findings.”

State v. Williams, 2d Dist. Greene No. 2013-CA-74, 2014-Ohio-3169, ¶ 11, citing Knapp -7-

v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980).

{¶ 19} In addition to the requirement of filing a transcript in the trial court when

objecting to a magistrate’s decision, filing requirements apply to appeals. In this regard,

App.R. 9(C) states that, “[i]f the error assigned on appeal relates to a factual finding, the

record on appeal shall include a transcript or affidavit previously filed with the trial court

as set forth in Civ.R. 53(D)(3)(b)(iii), Juv.R. 40(D)(3)(b)(iii), and Crim.R. 19(D)(3)(b)(iii).”

{¶ 20} “The duty to provide a transcript for appellate review falls upon the

appellant. This is necessarily so because an appellant bears the burden of showing error

by reference to matters in the record.” Knapp at 199. “When portions of the transcript

necessary for resolution of assigned errors are omitted from the record, the reviewing

court has nothing to pass upon and thus, as to those assigned errors, the court has no

choice but to presume the validity of the lower court's proceedings, and affirm.” Id.

{¶ 21} Failing to provide appellate courts with trial court transcripts deprives them

“of the ability to determine whether the trial court's decision is supported by the evidence

in the record, or otherwise to determine whether [the appellant] has satisfied its burden

of portraying error in the record.” Williams v. Premier Auto Mall, 2d Dist. Montgomery

No. 19690, 2003-Ohio-5922, ¶ 3.

{¶ 22} Although Harrison was a pro se litigant, the Supreme Court of Ohio has

“repeatedly declared that ‘pro se litigants * * * must follow the same procedures as litigants

represented by counsel.’ ” State ex rel. Neil v. French, 153 Ohio St.3d 271, 2018-Ohio-

2692, 104 N.E.3d 764, ¶ 10, quoting State ex rel. Gessner v. Vore, 123 Ohio St.3d 96,

2009-Ohio-4150, 914 N.E.2d 376, ¶ 5. “ ‘It is well established that pro se litigants are

presumed to have knowledge of the law and legal procedures and that they are held to -8-

the same standard as litigants who are represented by counsel.’ ” State ex rel. Fuller v.

Mengel, 100 Ohio St.3d 352, 2003-Ohio-6448, 800 N.E.2d 25, ¶ 10, quoting Sabouri v.

Ohio Dept. of Job & Family Servs. 145 Ohio App.3d 651, 654, 763 N.E.2d 1238 (10th

DIst.2001). As a result, Harrison was bound to follow the court’s direction and to comply

with the requirements of Crim.R. 19(D)(3)(b)(iii) and App.R. 9(C).

{¶ 23} In light of our limited ability to review the trial court’s judgment, we find no

error. According to the decisions of both the magistrate and the trial judge, the State

initially responded to Harrison’s discovery request in a timely fashion within a few days of

the request. However, for some reason, Harrison did not receive the responses prior to

trial. Nonetheless, Harrison was provided with the discovery the day of trial and was

given the chance to have the case continued so that he could have time for review.

Harrison rejected that offer and insisted on proceeding to trial that day.

{¶ 24} Criminal discovery is regulated by Crim.R. 16. Under Crim.R. 16(L), where

discovery violations are brought to the court’s attention, “the court may order such party

to permit the discovery or inspection, grant a continuance, or prohibit the party from

introducing in evidence the material not disclosed, or it may make such other order as it

deems just under the circumstances.” The Supreme Court of Ohio has said that “a trial

court must inquire into the circumstances surrounding a discovery rule violation and,

when deciding whether to impose a sanction, must impose the least severe sanction that

is consistent with the purpose of the rules of discovery.” City of Lakewood v. Papadelis,

32 Ohio St.3d 1, 5, 511 N.E.2d 1138 (1987).

{¶ 25} The charges at issue here were minor misdemeanors, which must be tried

within 30 days after the service of summons. R.C. 2945.71(A). The incident occurred -9-

on March 16, and the trial was set for April 9, 2019. It is apparent that plenty of time

remained within which a trial could occur without impinging on Harrison’s speedy trial

rights. The trial court, therefore, did not abuse its discretion by offering a continuance.

More importantly, however, Harrison rejected the court’s effort to remedy the violation, as

a result, Harrison waived any error. E.g., State v. Johnson, 8th Dist. No. 105612, 2018-

Ohio-1389, 110 N.E.3d 800, ¶ 30 (8th Dist.); State v. Walker, 8th Dist. Cuyahoga No.

59926, 1992 WL 83828, *2 (Apr. 23, 1992) (if a “continuance is offered but declined, the

trial court may presume that the violation of discovery has been remedied”; the defendant

has also waived the violation).

{¶ 26} Based on the preceding discussion, the First Assignment of Error is

overruled.

III. Delay of Trial for State’s Benefit

{¶ 27} Harrison’s Second Assignment of Error, quoted verbatim, states that:

The Trial Court Erred When It Allowed for State Trooper Wilson to

be 35 Minutes Late, When Trooper Wilson Was Still Conducting Traffic

Enforcement on the Public Highway, During the Time Trooper Wilson Was

Due in Court to Testify at 9:45 a.m. Was Still Patrolling Was Prejudice to

Delay the Trial for Business Matter Outside the Court’s Jurisdiction and

Violated the 14 Amendment Under the Equal Protection of the Law Was Not

Being Applied, Because Defendants That Are 35 Minutes Late Is [sic]

Issued Warrant and a Set Bond and This Is Not Considered Equal

Treatment. -10-

{¶ 28} Under this assignment of error, Harrison argues that the trial court should

have dismissed the case, rather than granting the State additional time, when Trooper

Wilson, the citing officer, was not present when the case was called for trial. Again, there

is no transcript, so we must rely on what is in the record and presume the regularity of the

proceedings.

{¶ 29} Harrison’s argument really has nothing to do with the trial itself; his theory

is that it is unfair for courts to delay proceedings so a State witness can appear, when

defendants who are cited into court will be arrested if they fail to appear. In rejecting this

argument, the trial court found the 35-minute delay reasonable, and also noted that the

court itself had also given leeway to defendants when they had reasonable excuses for

being late. Entry, p. 3.

{¶ 30} In State v. Johnson, 140 Ohio App.3d 385, 747 N.E.2d 863 (1st Dist.2000),

the appellant argued that the trial court had abused its discretion in two ways: (1) by

denying his request to continue the trial for three days to locate two witnesses; and (2) by

denying his request for a 45-minute delay, made on the final day of trial, so a defense

witness could arrive. Id. at 392-393. The court of appeals found no error in either

situation, because the trial court’s actions were reasonable under the circumstances.

Regarding the 45-minute delay, the court also concluded that the appellant failed to show

prejudice. Id. at 393.

{¶ 31} “The grant or denial of a continuance is a matter that is entrusted to the

broad, sound discretion of the trial judge.” State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d

1078 (1981), syllabus. “In evaluating a motion for a continuance, a court should note,

inter alia: the length of the delay requested; whether other continuances have been -11-

requested and received; the inconvenience to litigants, witnesses, opposing counsel and

the court; whether the requested delay is for legitimate reasons or whether it is dilatory,

purposeful, or contrived; whether the defendant contributed to the circumstance which

gives rise to the request for a continuance; and other relevant factors, depending on the

unique facts of each case.” Id. at 67-68.

{¶ 32} In addition to showing an abuse of discretion, “the appellant must show how

he has been prejudiced before there can be a finding of prejudicial error.” State v.

Gilleland, 2d Dist. Champaign No. 2004-CA-1, 2005-Ohio-659, ¶ 5, citing State v. Broom,

40 Ohio St.3d 277, 288, 533 N.E.2d 682 (1988),

{¶ 33} After reviewing the statements of the magistrate and trial court, we find no

abuse of discretion and no prejudice to Harrison from the brief wait for the State’s witness.

Accordingly, the Second Assignment of Error is overruled.

IV. Deprivation of Required Information

{¶ 34} Harrison’s Third Assignment of Error states that:

The Appellant Was Deprived of the * * * Right to be Provided With

All Required Information, Which Was a Procedural and Substantive Rights

Violation Under the 5th And 14th Amendment[s] to the United States

Constitutions and the Ohio Bill of Right Art. (1-10).

{¶ 35} Under this assignment of error, Harrison repeats some arguments

previously made. In addition, he appears to be complaining that the State did not give

him evidence about where Trooper Wilson had been that day before court, i.e., whether

he was writing citations or involved in patrol duties before coming in on the day of trial, -12-

whether Wilson used his overhead lights to get to court that morning, and so forth.

Harrison also challenges the fact that Wilson did not bring his speed radar or audio or

visual cruiser dash cam recordings about the traffic stop to court, and instead brought

only his window tint reader.

{¶ 36} Again, the transcript is not before us, and we have no idea what Trooper

Wilson did or did not bring to court. Furthermore, since a trial was held, Harrison would

have had the opportunity to cross-examine Wilson on any point he wished, even irrelevant

matters like Wilson’s conduct before coming to court that morning. As noted, we must

presume the regularity of the proceedings, since the transcript was not filed in the trial

court or in the court of appeals. Knapp, 61 Ohio St.2d at 199, 400 N.E.2d 384,

{¶ 37} As a final note, Harrison has asserted jurisdictional arguments, such as the

fact that the trial court lacked jurisdiction over him and that an individual cannot be guilty

of an offense created by an unconstitutional law. Appellant’s Brief, p. 13-14. Harrison

has not elaborated on how these general principles apply to his case. Moreover, there

is simply no evidence that the trial court lacked jurisdiction or that Harrison was being

prosecuted under an unconstitutional law.

{¶ 38} Based on the preceding discussion, the Third Assignment of Error is

V. Conclusion

{¶ 39} All of Harrison’s assignments of error having been overruled, the judgment

on the trial court is affirmed.

............. -13-

FROELICH, J. and HALL, J., concur.

Copies sent to:

Joshua Loya De’Acapone T. Harrison Hon. Thomas Hanna, Visiting Judge