State v. Harris

[Cite as State v. Harris, 2023-Ohio-4387.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-230074

TRIAL NOS. 22CRB-18454A, B, C, D

Plaintiff-Appellee, :

vs. : O P I N I O N.

JOHN HARRIS, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: December 6, 2023

Emily Smart Woerner, City Solicitor, William T. Horsely, Chief Prosecuting Attorney,

and Ashton Tucker, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant

Public Defender, for Defendant-Appellant.

OHIO FIRST DISTRICT COURT OF APPEALS

W INKLER , Judge.

{¶1} Defendant-appellant John Harris appeals his convictions for

aggravated menacing, obstruction of official business, being in the park after hours,

and criminal trespass. Harris raises one assignment of error that argues his various

convictions were based on insufficient evidence and against the manifest weight of the

evidence. For the following reasons, we affirm the judgments of the municipal court.

Background

{¶2} Around 4:45 a.m. on October 25, 2022, Harris was in Washington Park

warming his hands from a lit heater stored by the gazebo in the center of the park.

Washington Park is a public park owned by the Cincinnati Park Board and is open

from 6:00 a.m. to 11:00 p.m. The park is managed by the Cincinnati City Center

Development Corporation (“3CDC”). A 3CDC employee saw Harris at the gazebo and

called the police to have Harris removed from the park.

{¶3} Cincinnati Police Officer Chris Vogelpohl was on detail for 3CDC that

night to patrol parking lots managed by 3CDC. Officer Vogelpohl was dispatched and

approached Harris, who was standing by the gazebo with his hands above the lit fire

of a patio heater. Officer Vogelpohl asked to see Harris’s identification, but Harris

refused to produce it. Instead, Harris gathered his bags and started walking away from

Officer Vogelpohl.

{¶4} This was not the first time that Harris and Officer Vogelpohl interacted.

It is unclear from the record what transpired in those previous encounters, but the

record indicates that Officer Vogelpohl had encountered Harris three times previously

and each time, demanded Harris’s identification. The record indicates Harris

produced his identification each time but exchanged heated words with Officer

2

OHIO FIRST DISTRICT COURT OF APPEALS

Vogelpohl. Officer Vogelpohl did not charge or ticket Harris in any of these

encounters.

{¶5} As Harris gathered his belongings and took his first steps away from

Officer Vogelpohl, the officer said, “Sir, I’m going to give you a ticket for being in the

park after hours.” Harris began arguing with Officer Vogelpohl while continuing to

walk away from him. Harris argued that he was allowed to walk through the park and

denied lighting the heater.

{¶6} After Harris left Washington Park and crossed the street, he yelled to

Officer Vogelpohl that Harris “would blow [Officer Vogelpohl’s] brains out.” Harris

then continued down the street while carrying two bags, with one in each hand. Officer

Vogelpohl followed Harris, asking him to repeat the statement. Harris eventually

stopped and dropped the bag held in his right hand and reached for the bag held in his

left hand. Officer Vogelpohl drew his firearm in response. Harris did not take

anything out of either bag, but walked down the street, leaving one bag behind. Officer

Vogelpohl followed Harris and called for backup. Harris turned around the block and

went down an alley.

{¶7} A police cruiser pulled down the alley in front of Harris to block him.

Officer Vogelpohl ordered Harris to stop. Harris ran around the police cruiser and

down the alley, heading back to Washington Park. Officer Vogelpohl and the police

cruiser chased Harris and caught up with him at the same corner where Harris yelled

that he would blow Officer Vogelpohl’s brains out. Officer Vogelpohl arrested Harris.

{¶8} Harris was charged with four offenses: aggravated menacing in

violation of R.C. 2903.21, obstruction of official business in violation of R.C. 2921.31,

being in the park after hours in violation of Cincinnati Park Board Rule 21

3

OHIO FIRST DISTRICT COURT OF APPEALS

(“Park Rule 21”), and criminal trespass in violation of R.C. 2911.21(A)(1). Harris was

tried in municipal court by a jury on the aggravated-menacing, obstruction, and

trespass counts, and tried to the bench on the count of being in the park after hours.

{¶9} Officer Vogelpohl testified to the events on that night and walked the

jury through the recording on his body-worn camera. Officer Vogelpohl testified at

first that he “didn’t like” Harris saying that he would blow his brains out. On redirect

examination, Officer Vogelpohl testified that Harris’s statement made him feel afraid

and explained how his training as a police officer limited how his fear showed on his

body-worn camera recording.

{¶10} Harris took the stand in his own defense and testified that he walked

away from Officer Vogelpohl and did not produce his identification because he had

done so on previous occasions.

{¶11} After trial, the jury found Harris guilty on the aggravated-menacing,

obstruction-of-official-business, and criminal-trespass charges. Harris was convicted

by the court on the charge of being in the park after hours. Harris now timely appeals

all four convictions.

Law and Analysis

{¶12} Harris raises a sole assignment of error, arguing his four convictions

were based on insufficient evidence and were contrary to the manifest weight of the

evidence. Though Harris raises both challenges together in the sole assignment of

error depending on the conviction, “a challenge to the sufficiency of the evidence

differs from a challenge to the manifest weight of the evidence.” State v. McKnight,

107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 69.

4

OHIO FIRST DISTRICT COURT OF APPEALS

{¶13} Broken down for each conviction, Harris argues (1) his conviction for

aggravated menacing was contrary to the manifest weight of the evidence, (2) his

conviction for obstructing official business was not supported by sufficient evidence

and was contrary to the manifest weight of the evidence, and (3) his convictions for

criminal trespass and being in the park after hours were not supported by sufficient

evidence and were contrary to the manifest weight of the evidence. For organizational

clarity, we address Harris’s arguments in the order he made them.

I. Standard of Review

{¶14} A challenge to the sufficiency of the evidence supporting a conviction

requires a court to determine whether the state has met its burden of production at

trial. State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997) (Cook, J.,

concurring). It is a question of law that we review de novo. State v. Ellison,

178 Ohio App.3d 734, 2008-Ohio-5282, 900 N.E.2d 228, ¶ 9 (1st Dist.), citing

Thompkins at 386 (Cook, J., concurring). A challenge to the sufficiency of the evidence

requires a court to review the evidence in a light most favorable to the prosecution to

determine whether a rational trier of fact could have found that all essential elements

of a crime were proved beyond a reasonable doubt. State v. Sims, 1st Dist. Hamilton

Nos. C-150252 and C-150253, 2015-Ohio-4996, ¶ 7. In deciding whether the evidence

is sufficient, an appellate court does not “resolve evidentiary conflicts nor assess the

credibility of the witnesses.” State v. Thomas, 1st Dist. Hamilton No. C-120561,

2013-Ohio-5386, ¶ 45.

{¶15} In contrast to a challenge to the sufficiency of evidence, in deciding

whether a conviction is against the manifest weight of the evidence, an appellate court

determines whether the state has appropriately carried its burden of persuasion.

5

OHIO FIRST DISTRICT COURT OF APPEALS

Thompkins at 390 (Cook, J., concurring). When reviewing a challenge to the manifest

weight of evidence, an appellate court sits as the “thirteenth juror” and “review[s] the

entire record, weigh[s] the evidence, consider[s] the credibility of the witnesses, and

determine[s] whether the trier of fact clearly lost its way and created a manifest

miscarriage of justice.” Sims at ¶ 7, citing Thompkins at 387 (Cook, J., concurring).

An appellate court may substitute its judgement for that of the trier of fact on the issue

of witness credibility when “it is patently apparent that the trier of fact lost its way in

arriving at its verdict.” State v. Porter, 1st Dist. Hamilton No. C-200459,

2021-Ohio-3232, ¶ 25. However, an appellate court may not substitute its own

judgement for that of the trier of fact “[w]here reasonable minds can reach different

conclusions upon conflicting evidence.” State v. Jenks, 61 Ohio St.3d 259, 279,

574 N.E.2d 492 (1991).

II. Aggravated Menacing

{¶16} First, Harris argues that his conviction for aggravated menacing is

contrary to the manifest weight of the evidence. The aggravated-menacing statute

provides that “[n]o person shall knowingly cause another to believe that the offender

will cause serious physical harm to the person or property of the other person.”

R.C. 2903.21(A). Harris concedes that he knowingly threatened to blow Officer

Vogelpohl’s brains out and that act would constitute serious physical harm. However,

Harris argues that Officer Vogelpohl’s testimony about his belief that Harris would

cause serious physical harm was not credible.

{¶17} Generally, the jury is in the best position to assess the credibility of the

witnesses and can freely accept or reject testimony. State v. French, 1st Dist. Hamilton

No. C-050375, 2007-Ohio-726, ¶ 24, citing State v. DeHass, 10 Ohio St.2d 230,

6

OHIO FIRST DISTRICT COURT OF APPEALS

227 N.E.2d 212, (1967), paragraph one of the syllabus. Hence, a verdict is not against

the manifest weight of the evidence where the jury’s resolution of credibility is

reasonable and where the jury ultimately chose to believe the state’s witness as

opposed to the defense witness. See State v. Brown, 9th Dist. Summit No. 26490,

2013-Ohio-5112, ¶ 20, citing State v. Andrews, 9th Dist. Summit No. 25114,

2010-Ohio-6126, ¶ 28.

{¶18} Harris argues two issues with Officer Vogelpohl’s testimony. First,

Harris argues Officer Vogelpohl’s actions shown on his body-worn camera contradict

his claim that he was afraid. Officer Vogelpohl did not call for backup or seek cover

when threatened. Instead, he followed Harris asking, “You’re going to do what?” to

get Harris to repeat the threat. Officer Vogelpohl drew his firearm only after Harris

dropped one bag to reach another. Second, Harris notes that Officer Vogelpohl only

testified on redirect after the lunch break that he took the threat seriously and was

afraid, but he initially testified that Harris’s threat frustrated him. Harris testified that

previous interactions with Officer Vogelpohl had gone poorly, and that Officer

Vogelpohl was harassing Harris.

{¶19} We hold the jury did not lose its way and create a manifest miscarriage

of justice when it found Harris guilty of aggravated menacing. The jury watched the

body-worn camera video which recorded Harris making the threat, heard both

Harris’s and Officer Vogelpohl’s testimony about what happened that night, and

observed both witnesses on the stand. The jury did not lose its way when it found

Officer Vogelpohl’s fear credible based on the events of the night and Officer

Vogelpohl’s explanation of his own thoughts and feelings. See State v. Carson,

1st Dist. Hamilton No. C-180336, 2019-Ohio-4550, ¶ 19. The jury was free to accept

7

OHIO FIRST DISTRICT COURT OF APPEALS

Officer Vogelpohl’s version of the events and reject Harris’s version of events,

particularly where, as here, the jury watched a video recording of the threat and

observed Harris’s tone and demeanor in that moment. To the extent that Harris

claimed Officer Vogelpohl is racially biased, and thus his testimony is not credible,

that is a determination best left to the jury. See State v. Staley, 1st Dist. Hamilton Nos.

C-200270, C-200271 and C-200272, 2021-Ohio-3086, ¶ 24. Accordingly, Harris’s

conviction for aggravated menacing was not contrary to the manifest weight of the

evidence.

III. Obstruction of Official Business

{¶20} Second, Harris argues his conviction for obstructing official business

was not supported by sufficient evidence and was contrary to the manifest weight of

the evidence.

{¶21} To support a conviction for obstructing official business under

R.C. 2921.31(A), the state must prove that Harris “(1) performed an act; (2) without

privilege; (3) with purpose to prevent, obstruct, or delay the performance of a public

official of any authorized act within the public official’s official capacity; and (4) that

hampered or impeded the performance of the public official’s duties.” In re Payne,

1st Dist. Hamilton No. C-040705, 2005-Ohio-4849, ¶ 11. Harris’s argument focuses

on element (3), whether he purposefully obstructed official business, and element (4),

whether his actions hampered or impeded Officer Vogelpohl’s investigation.

{¶22} Turning to whether Harris actually hampered or impeded Officer

Vogelpohl’s investigation, not every act that “can conceivably be said to hinder a police

officer rises to the level of criminal conduct.” Id. at ¶ 16. Interference with the police

by citizens must be “ ‘viewed as a continuum along which, at a certain point, the line

8

OHIO FIRST DISTRICT COURT OF APPEALS

is crossed’ ” where the conduct is punishable. Id., quoting State v. Stayton,

126 Ohio App.3d 158, 164, 709 N.E.2d 1224 (1st Dist.1998). R.C. 2921.31(A) does not

criminalize every “minor ‘delay, annoyance, irritation, or inconvenience’ ” put on a

police officer. State v. Harris, 2018-Ohio-4316, 121 N.E.3d 21, ¶ 16 (4th Dist.), quoting

State v. Vitantonio, 2013-Ohio-4100, 995 N.E.2d 1291 (11th Dist.), ¶ 14, quoting

Lakewood v. Simpson, 8th Dist. Cuyahoga No. 80383, 2002-Ohio-4086, ¶ 16.

{¶23} Rather, the statute criminalizes conduct where the defendant commits

an affirmative act, and that affirmative act creates a “substantial stoppage” in the

police officer’s official business. See State v. Grice, 180 Ohio App.3d 700,

2009-Ohio-372, 906 N.E.2d 1203, ¶ 12 (1st Dist.). A “substantial stoppage” is not a

set period of time; rather the defendant’s act must “actually hamper or impede” the

officer’s performance of official duties. State v. Wellman, 173 Ohio App.3d 494,

2007-Ohio-2953, 879 N.E.2d 215, ¶ 18 (1st Dist.). Additionally, the defendant need

not be successful in preventing the officers from performing their duties; merely

obstructing the officers from doing so is enough. Id. at ¶ 19. The mere refusal to

produce identification upon request of a police officer is not an “affirmative act” for

the purposes of obstructing official business. Grice at ¶ 9. Ordinarily, an individual

can be found guilty of obstructing official business by performing a specific act after a

police officer has ordered him or her to stop. State v. Gibson, 2019-Ohio-1022,

133 N.E.3d 1006, ¶ 19 (2d Dist.), quoting City of Girard v. Oakman, 2018-Ohio-1212,

110 N.E.3d 530, ¶ 52 (11th Dist.). But “if an officer has the right to detain an individual,

the individual cannot continue walking away from the officer once he or she is aware

that the officer is trying to detain him or her.” State v. Easterling, 2019-Ohio-2470,

139 N.E.3d 497, ¶ 37 (2d Dist.), quoting State v. Harris, 2015-Ohio-5378,

9

OHIO FIRST DISTRICT COURT OF APPEALS

56 N.E.3d 286, ¶ 7 (9th Dist.); see State v. Lohaus, 1st Dist. Hamilton No. C-020444,

2003-Ohio-777, ¶ 11-12 (holding R.C. 2921.31 prohibits “fleeing from a lawful Terry

stop across several lawns after being told to stop * * * .”).

{¶24} Harris did not obstruct official business when he refused to provide his

identification at the outset of the encounter, or argued with and swore at Officer

Vogelpohl, or shouted his frustration into the night. Had that been the only evidence,

this would be a different case. But Harris heard Officer Vogelpohl say, “I’m going to

issue you a ticket for being in the park after hours,” so Harris knew Officer Vogelpohl

intended to cite him. But Harris walked away from Officer Vogelpohl, necessitating a

seven-minute foot pursuit. Five minutes into walking after Harris, Officer Vogelpohl

called for a backup car. When the additional police cruiser arrived to stop Harris,

Officer Vogelpohl ordered Harris to stop. Harris ran from the officers, and, after a

brief chase, they had to physically restrain him. Harris did not merely refuse to

cooperate; Harris engaged in the affirmative act of gathering his belongings and

walking away when he knew that Officer Vogelpohl intended to detain him and issue

him a ticket. Then, when ordered to stop a few minutes later, Harris ran. Viewing this

evidence in the light most favorable to the prosecution, a trier of fact could reasonably

conclude that Harris created a substantial stoppage by impeding Officer Vogelpohl

from issuing the ticket while he followed Harris until Harris was arrested.

{¶25} Turning to whether Harris purposefully obstructed official business, a

person acts “purposefully” when it is the person’s “specific intention” to cause a certain

result or engage in the prohibited conduct, regardless of what the person intends to

accomplish by doing so. See R.C. 2901.22(A). “The purpose with which a person does

an act is determined from the manner in which it is done, the means used, and all the

10

OHIO FIRST DISTRICT COURT OF APPEALS

other facts and circumstances in evidence.” In re Payne 1st Dist. Hamilton

No. C-040705, 2005-Ohio-4849, at ¶ 15. A trier of fact must be able to reasonably

infer from the nature of a person’s conduct that the person intended his conduct to

obstruct official business. Id.

{¶26} The record here supports an inference from the nature of Harris’s

conduct that Harris specifically intended to obstruct Officer Vogelpohl from issuing a

ticket to Harris. The body-worn camera footage shows Officer Vogelpohl telling Harris

he would receive a ticket and Harris responded by gathering his belongings and

walking away. Harris continued walking away from Officer Vogelpohl for several

minutes, and when a police car pulled in front of Harris to stop him, he ran. Viewing

this evidence in the light most favorable to the prosecution, a reasonable factfinder

could conclude that Harris affirmatively acted by walking away from Officer

Vogelpohl. That reasonable factfinder could conclude that Harris impeded Officer

Vogelpohl’s performance of his police duties during the pursuit. From that conduct,

a reasonable factfinder could infer that Harris specifically intended to avoid the ticket

by walking and then running away from Officer Vogelpohl.

{¶27} Ultimately, the jury was presented with sufficient evidence that Harris

committed an affirmative act that caused a substantial stoppage of Officer Vogelpohl’s

investigation and that Harris specifically intended to cause that result. We hold the

jury did not lose its way and create a manifest miscarriage of justice when it found

Harris guilty of obstruction of official business.

11

OHIO FIRST DISTRICT COURT OF APPEALS

IV. Criminal Trespass and Being in Washington Park After Hours

{¶28} Harris argues that his convictions for criminal trespass and being in

Washington Park after hours were not supported by sufficient evidence and were

contrary to the manifest weight of the evidence.

{¶29} The criminal trespass statute provides that “[n]o person, without

privilege to do so, shall * * * [k]nowingly enter or remain on the land or premises of

another.” R.C. 2911.21(A)(1). Park Board Rule 21 provides that Washington Park,

among other specified parks, “shall be closed to the public between 11:00 p.m. and

6:00 a.m. except for vehicular traffic on through roadways or vehicular or pedestrian

traffic within, accessing, or exiting public parking garages directly connecting to city

streets.” Cincinnati Park Rule 21, https://www.cincinnati-oh.gov/cincyparks/visit-a-

park/park-board-rules/ (accessed September 12, 2023). A violation of any Park Board

Rule is punishable as a minor misdemeanor. Cincinnati Park Board Rule 39.

{¶30} Generally, “a person has a privilege to enter and be upon the public

areas of public property.” State v. Shelton, 63 Ohio App.3d 137, 578 N.E.2d 473

(4th Dist.1989). However, a person may commit a criminal trespass onto public

property when his or her general privilege to be there has been properly revoked.

A “ ‘public official or agency into whose charge the property is put can withdraw or

revoke the privilege otherwise enjoyed by a member of the public.’ ” Staley, 1st Dist.

Hamilton Nos. C-200270, C-200271 and C-200272, 2021-Ohio-3086, at ¶ 13, quoting

Dayton v. Moore, 2d Dist. Montgomery No. 13369, 1993 Ohio App. LEXIS 1647

(Mar. 25, 1993).

{¶31} Here, the record establishes that 3CDC, the entity charged with

managing Washington Park, set out three signs that display the hours that the park is

12

OHIO FIRST DISTRICT COURT OF APPEALS

open. Outside of those hours, the signs notify members of the public that their

privilege to be in Washington Park is revoked by Park Rule 21. While it is unclear from

the record whether the signs state that Washington Park closes at 10:00 p.m. or

11:00 p.m., Harris was in the park at 4:45 a.m., well after either closing time and before

the park opens at 6:00 a.m. Additionally, Officer Vogelpohl testified that on previous

occasions, he had told Harris not to be in Washington Park when it is closed, also

revoking Harris’s privilege to be in Washington Park when it is closed. Officer

Vogelpohl’s body-worn camera recorded Harris shouting, “I’ll be back at 6!” after he

left the park. This statement demonstrates Harris knew the park opened at 6:00 a.m.,

that Harris was not currently permitted to be in the park, and that Harris would be

permitted in the park when it was open.

{¶32} Harris contends he was passing through Washington Park, but Park

Rule 21 only exempts “pedestrian traffic within, accessing, or exiting public parking

garages.” The rule does not generally exempt pedestrian traffic walking through the

park. Harris does not argue he fell under the exception for accessing or exiting from a

public parking garage. Even if he did argue the exception applied, the evidence

suggests otherwise. Harris was stopped at the gazebo in the middle of the park, away

from the access points to the parking garages or the routes from those access points to

the street.

{¶33} Viewing the evidence presented in the light most favorable to the

prosecution, a reasonable factfinder could determine that Harris was in the park

between 11:00 p.m. and 6:00 a.m. and that the posted signs revoked Harris’s privilege

to be in the park. Thus, the finder of fact was presented with sufficient evidence to

find Harris guilty of criminal trespass and being in the park after hours. Nor did the

13

OHIO FIRST DISTRICT COURT OF APPEALS

finder of fact lose its way and create a manifest miscarriage of justice in finding Harris

guilty of obstruction of official business.

Conclusion

{¶34} Based on the foregoing reasoning, Harris’s conviction for aggravated

menacing was not contrary to the manifest weight of the evidence and Harris’s

convictions for obstructing official business, criminal trespass, and being in the park

after hours each were supported by sufficient evidence and not contrary to the

manifest weight of the evidence. This is not one of those “exceptional cases in which

the evidence weighs heavily against the conviction” such that reversal on the basis of

manifest weight is required. See Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,

(Cook, J., concurring), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d

717 (1st Dist.1983).

{¶35} Accordingly, we overrule the assignment of error and affirm the

judgments of the municipal court.

Judgments affirmed.

C ROUSE , P.J., and B OCK , J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.

14