         [Cite as State v. Harper, 2013-Ohio-5217.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :     APPEAL NO. C-130134
                                                          TRIAL NO. 12CRB-26827-B
        Plaintiff-Appellee,                           :
                                                               O P I N I O N.
  vs.                                                 :

GREGORY HARPER, SR.,                                  :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: November 27, 2013


John Curp, City Solicitor, Charlie Rubenstein, City Prosecutor, and Eric Cook,
Assistant City Prosecutor, for Plaintiff-Appellee,

Michele L. Berry, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

         {¶1}   This is an appeal from a conviction for resisting arrest.         We are

compelled to reverse because the city of Cincinnati’s prosecutor’s office chose to keep a

critical exhibit admitted at trial—a video of the alleged incident—in a desk drawer rather

than making it a part of the record on appeal. Because the appellate record as it stands

does not contain sufficient evidence of the offense, we reverse the judgment of the trial

court and discharge defendant-appellant Gregory Harper from further prosecution.

                                            I.

         {¶2}   The case began with a 911 call by Mr. Harper, complaining that his

roommate, Denise Cheatham, had assaulted him.           When Cincinnati police officers

responded to the call, Mr. Harper met them outside his apartment.             The officers

questioned the pair separately. Ms. Cheatham indicated that she had been hit by Mr.

Harper and that she wanted Mr. Harper arrested, so Officer Dean Chatman decided to

handcuff Mr. Harper and place him in a police cruiser while the incident was

investigated. Officer Chatman started to write a citation for assault against Mr. Harper,

but his partner informed him that Ms. Cheatham had left the scene. Unable to get a

statement from Ms. Cheatham, Officer Chatman advised Mr. Harper that he was free to

leave.

         {¶3}   Mr. Harper believed that he was the wronged party and wanted the

police officers to arrest Ms. Cheatham. After being told by Officer Chatman that Ms.

Cheatham could not be arrested because she was no longer at the scene, Mr. Harper

chose to protest the police officer’s inaction nonviolently by staging a “sit-in” in the

police cruiser. Despite repeated requests, Mr. Harper refused to get out of the cruiser.




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          {¶4}   The “sit-in” lasted for over an hour and a half. Eventually, the frustrated

police officers called the chief city prosecutor for guidance. The city prosecutor advised

them to arrest Mr. Harper for the assault. Armed with this advice, Officer Chatman told

Mr. Harper that he was going to be charged with assault, and that if he resisted in the

slightest, he would be charged with resisting arrest. What happened next is unclear.

According to Officer Chatman, the policy of the police department was to handcuff

arrestees outside of the cruiser. But Officer Chatman was unsure whether he had asked

Mr. Harper to leave the car or had asked him to put his hands behind his back

immediately. Referring to the video from the cruiser camera, Officer Chatman stated,

“The video will have to recall that. I don’t recall if I asked him to put his hands behind

his back to handcuff him or to step out. Either way, he didn’t do either what I asked him

to do.”

          {¶5}   Mr. Harper’s recollection of what happened after he was told that he was

under arrest for assault is different. According to Mr. Harper, he was unsure why he was

under arrest. And rather than trying to resist arrest, he attempted “to accommodate the

officers by responding to whatever they needed me to respond to. When they asked me

to put my hands behind my back, I did that.”

          {¶6}   After considering the testimony of the witnesses and watching the video,

the court found that, based on what it had seen on the video, Mr. Harper had resisted

arrest. The court found him guilty of resisting arrest, sentenced him to six days’

incarceration, and credited him with six days served.

                                             II.

          {¶7}   In his first assignment of error, Mr. Harper asserts that his conviction

was supported by insufficient evidence and was against the manifest weight of the




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evidence. Before considering this assignment, we must first address the absence from

the appellate record of an exhibit relied upon by the court below.

       {¶8}     Because Mr. Harper’s “sit-in” lasted for over an hour and a half, the

video from the police cruiser was divided into three parts. Joint Exhibit 1 was the cruiser

video. The pivotal volume—the one that showed the alleged offense—was volume 3, and

it was this volume that the trial court apparently reviewed prior to making its finding of

guilt. The record indicates that, at the conclusion of the trial, Joint Exhibit 1 was

admitted into evidence by the court.

       {¶9}     On June 19, 2013, Mr. Harper’s appellate counsel, who was not his trial

counsel, filed a motion for an extension of time to file her brief with this court. Within

that motion, which was served on the city, counsel explained that she was unable to

complete the brief because volume 3 of Exhibit 1 was missing. Counsel explained that

       the DVD marked as “Joint Exhibit 1” and contained in the evidence box

       for this case in the Court Reporter’s Office is not the correct DVD—rather,

       it is Volume 1. Likewise, the DVD given to counsel by trial counsel is also

       not the correct DVD—it is Volume 2. Counsel is seeking the assistance of

       the City of Cincinnati Prosecutor’s Office and the Cincinnati Police

       Department in locating a copy of Volume 3 for counsel’s review.

       {¶10}    Appellate counsel’s efforts to locate volume 3 were unavailing,

prompting her to file a notice with this court that volume 3 was missing. Within her

notice, appellate counsel stated that

       [c]ounsel sought the assistance of the City of Cincinnati’s Prosecutor’s

       Office/Counsel for Appellee (Christopher Lui) to locate the correct

       volume of the cruiser camera video. Mr. Lui informed undersigned

       counsel that the trial attorney for the City of Cincinnati no longer is



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       employed by the City of Cincinnati Prosecutor’s Office and that his files

       for this case are also missing. Counsel for Appellee further informed

       undersigned counsel for Appellant Harper that, to date, the City of

       Cincinnati Police Department has not been able to reproduce the video in

       question.

Mr. Harper’s appellate brief, filed on August 1, 2013, again referenced the fact that

volume 3 was missing from the appellate record.

       {¶11}    The state filed its brief on November 4, 2013. Within the brief, the

assistant city prosecutor stated that “Defendant’s claim that Joint Exhibit 1 is missing

from the record is not correct and it is up to the Appellant to make [sure] the record has

been corrected.” Later in the brief, the prosecutor states that “[t]his issue [of the effect

of the lost exhibit on Mr. Harper’s appellate rights] is moot because Joint Exhibit 1 has

been sent to Defendant-Appellant and it is up to the Defendant-Appellant to correct the

record.”

       {¶12}    During the argument before this court, however, it was revealed that no

copy of volume 3 had been sent to Mr. Harper’s appellate counsel, and that the original

volume 3, which should have been left in the possession of the court reporter following

the trial, was in the assistant city prosecutor’s file.     The assistant city prosecutor

represented to this court that volume 3 had been in his file from the time he had been

assigned the case in September 2013. It seems evident, then, that volume 3 had been in

the possession of the city since the conclusion of the trial. The assistant city prosecutor

acknowledged to this court that the statement in his brief that volume 3 had been sent to

Mr. Harper’s counsel had not been based on personal knowledge. The assistant city

prosecutor also conceded that, despite the fact that volume 3 was in his possession, he




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had not tried to supplement the appellate record because he was under the impression

that it was Mr. Harper’s counsel’s burden to do so.

       {¶13}    What is troubling is that as is evidenced in repeated filings in this court,

the city knew that the DVD was missing, and that Mr. Harper’s counsel was making

every effort to make the DVD a part of the appellate record. Yet the city did nothing.

The city attempts to hide behind App.R. 10(A) and argues that the burden was on the

appellant to make sure the record was complete. What the city fails to explain is how

counsel could have supplemented the record with a DVD that was in the city

prosecutor’s possession all along. Because the city did not supplement the record, our

review is limited to the record as it stands before us.

                                             III.

       {¶14}    Turning to Mr. Harper’s sufficiency claim, we must determine whether

the city presented adequate evidence on each element of the offense.               State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).                Mr. Harper was

convicted of violating R.C. 2921.33(A), which provides that “[n]o person, recklessly

or by force, shall resist or interfere with a lawful arrest of the person or another.”

Officer Chatman stated that he believed that Mr. Harper had “clamped up” when he

was told he was under arrest. But Officer Chatman deferred to the video to show

exactly what had occurred. Because the video is not part of the record before us due

to the conduct of the city prosecutor’s office, we are unable to confirm that Mr.

Harper “clamped up” or did anything else that would constitute resisting arrest. As

we unable to conclude that the city presented sufficient evidence of the offense, we

sustain Mr. Harper’s first assignment of error.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶15}   Our resolution of the first assignment of error is dispositive, so we

need not consider Mr. Harper’s second assignment of error. The judgment of the

trial court is reversed, and Mr. Harper is discharged from further prosecution.

                                          Judgment reversed and appellant discharged.


H ENDON , P.J., and H ILDEBRANDT , J., concur.


Please note:

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




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