[Cite as State v. Harris, 2015-Ohio-5409.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102124




                                       STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                      ERNEST HARRIS

                                                             DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-582230-A

        BEFORE:          Laster Mays, J., Kilbane, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED:                     December 24, 2015
                                     -i-




ATTORNEY FOR APPELLANT

Aaron T. Baker
38109 Euclid Avenue
Willoughby, Ohio 44094


FOR APPELLANT

Ernest Harris, pro se
Inmate No. 653-782
Lake Erie Correctional Institution
501 Thompson Road
P.O. Box 8000
Conneaut, Ohio 44030


ATTORNEYS FOR APPELLEE

Timothy McGinty
Cuyahoga County Prosecutor

By: Lon’cherie’ D. Billingsley
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} On May 8, 2014, defendant-appellant Ernest Harris (“Harris”) was found

guilty of two counts of drug possession, in violation of R.C. 2925.11(A), a fifth-degree

felony; one count of possessing criminal tools, in violation of R.C. 2923.24(A),

fifth-degree felony; one count of trafficking in violation of R.C. 2925.03(A)(2),

fifth-degree felony; and one count of trafficking, in violation of R.C. 2925.03(A)(1),

fifth-degree felony.    Each count was accompanied by forfeiture specification for a scale

that was used in the offenses.       Counts 3 and 4 merged for the purpose of sentencing.1

The trial court imposed a sentence of four years, one year for each count.

       {¶2} After review of the record, we reverse the trial court’s ruling and remand for

a new trial.   Harris assigns five errors for our review, however, error three is dispositive

of the case, so we need not address the other four.

       I. The state failed to present sufficient evidence to prove appellant’s guilt
       beyond a reasonable doubt as to all counts of the indictment.

       II.    The appellant’s convictions are against the manifest weight of the
       evidence.

       III. The trial court violated R.C. 2945.37(B) when it ordered an evaluation
       for competency to stand trial and sanity at the time of the act, and then did
       not hold a hearing on the issue.




        Harris was charged with Count 1 drug possession, Count 2 possessing criminal tools, Count 3
       1


drug possession, Count 4 trafficking, and Count 5 trafficking.
        IV. The trial court committed error, allowing prosecutorial misconduct,
        during closing arguments.

        V.      The trial court erred in failing to permit trial counsel to conduct voir
        dire of the jury on the issues of the weight of the evidence required to be
        proven, as well a whether a juror could find the appellant not guilty in the
        event that the juror felt the state had not proven the case beyond a
        reasonable doubt.

I.      Facts and Procedural Posture

        {¶3} The Cleveland Police Department received several complaints about drug

activity at Harris’s residence.      On January 28, 2014, detectives conducted a controlled

drug buy at Harris’s residence using a confidential reliable informant.        The detectives

gave the informant $20 to purchase drugs from the residence.           They observed Harris,

who they were previously acquainted with, open the door for the informant.            Minutes

later, the informant exited the home and gave the police the cocaine that purchased in the

home.

        {¶4} The next day, the detectives conducted another controlled drug buy at the

Harris residence.    Again Harris opened the door and let the informant in the home.       The

informant gave Harris the money, and Harris gave the informant a package containing

cocaine.     Each drug buy occurred out of the view of detectives.        Once the informant

exited the house and gave the detectives the drugs that he purchased, Cleveland police

executed a search warrant on the home.        During the search, they found the Cleveland

Police Department buy money, crack pipes, cocaine, a scale with cocaine residue, and

marijuana.     The scale and cocaine were located in the room that Harris identified as his

bedroom.      The buy money was located near where Harris was standing.
       {¶5}    On February 12, 2014, Harris was indicted by the Cuyahoga County Grand

Jury on five felony counts. Trial was set for March 26, 2014, but was continued and

Harris was referred to the Court Psychiatric Clinic for an evaluation as to his competency

to stand trial and sanity at the time of the act.   The trial court never held a hearing on the

issue of competency after the referral.     A jury trial commenced on May 5, 2014.       Once

the state of Ohio rested, defense counsel informed the state that Harris wanted to call a

witness. This witness testified that the drugs belonged to her and she intended to sell the

drugs. This witness was not originally scheduled to testify and sat through the entire

trial listening to all of the testimony.   Harris did not testify.

       {¶6} At the end of the trial, the state, during its closing argument recounted the

testimony of one of the detectives during the trial. Instead of restating verbatim what the

detective said, the prosecutor gave a summary.         In addition to this, the state recounted

the testimony of the defense witness and questioned the veracity of her statements.

After deliberations, the jury found Harris guilty of all five counts charged in the

indictment. As a result, Harris filed this timely appeal.

II.    Law and Analysis

       {¶7}    In his third assignment of error, Harris argues that the court violated R.C.

2945.37(B) when it ordered an evaluation for competency to stand trial and

sanity at the time of the act, but then did not hold a hearing on the issue.

R.C. 2945.37(B) states,
      [I]n a criminal action in a court of common pleas, a county court, or a
      municipal court, the court, prosecutor, or defense may raise the issue of the
      defendant’s competence to stand trial. If the issue is raised before the trial
      has commenced, the court shall hold a hearing on the issue as provided in
      this section. If the issue is raised after the trial has commenced, the court
      shall hold a hearing on the issue only for good cause shown or on the
      court’s own motion.

(Emphasis added.)

      {¶8}    Under R.C. 2945.37, there is a presumption that a defendant is competent to

stand trial. This presumption remains valid unless it is proven by a preponderance of the

evidence that the defendant is unable to understand the nature and objective of the

proceedings against him or of assisting in his defense. State v. Johnson, 112 Ohio St.3d

210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 160. The issue of a defendant’s competency

to stand trial may be raised by the trial court, prosecutor, or the defendant. R.C.

2945.37(B).

      {¶9} If a request is made prior to trial, the trial court is required to hold a

competency hearing.      Id.   This court has reversed cases for failure to hold a

competency hearing before accepting a guilty plea when a suggestion of incompetency is

left undeveloped in the record. See State v. Macon, 8th Dist. Cuyahoga No. 96618,

2012-Ohio-1828, ¶ 37.    The question of whether to hold a competency hearing once the

trial has commenced is left to the trial court’s discretion and will not be reversed absent

an abuse of that discretion. State v. Rahman, 23 Ohio St.3d 146, 156, 492 N.E.2d 401

(1986).   An abuse of discretion is more than an error of law or judgment.       Rather, it

implies that the court’s attitude is unreasonable, arbitrary, or unconscionable. State v.
Miller, 8th Dist. Cuyahoga No. 93371, 2010-Ohio-2097, ¶ 17, citing Blakemore v.

Blakemore, 5 Ohio St.3d 217, 218, 450 N.E.2d 1140 (1983).

       {¶10} A defendant has a constitutional right to a competency hearing only when

there is sufficient “indicia of incompetence” to alert the court that an inquiry is needed to

ensure a fair trial. State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995).

Considerations in this regard might include supplemental medical reports, specific

references by defense counsel to irrational behavior, and the defendant’s demeanor during

trial. State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 15, citing

State v. Chapin, 67 Ohio St.2d 437, 424 N.E.2d 317 (1981).

       {¶11} Harris argues there should have been a hearing to decide on his competency

because R.C. 2945.37(B) states that if the defendant’s competence is raised before the

trial commences, “the court shall hold a hearing on the issue.”        The court ordered the

evaluation on April 8, 2014, but never held a hearing to determine if he was competent to

stand trial.

       {¶12} The state argues that the decision in State v. Bock, 28 Ohio St.3d 108, 110,

502 N.E.2d 1016 (1986), is applicable. The court in Bock held that “there is no question

that where the issue of the defendant’s competency to stand trial is raised prior to the trial,

a competency hearing is mandatory.” Id. at 110.          However, the court also held that

“failure to hold a mandatory competency hearing is harmless error where the record fails

to reveal sufficient indicia of incompetency.” Macon, 8th Dist. Cuyahoga No. 96618,

2012-Ohio-1828, ¶ 35, citing Bock.        The state argues that not having a hearing on
Harris’s competency to stand trial is harmless error because the record does not reveal

that he is incompetent.   We agree with the state that competency is assumed unless the

record indicates otherwise.    The Supreme Court of Ohio echoed this point in State v.

Were, 94 Ohio St.3d 173, 761 N.E.2d 591 (2002), where it stated,

       [T]he state relies on Bock, where this court found that the failure to hold a
       competency hearing was harmless error. We find that the state’s reliance
       on Bock is misplaced. The facts in Bock are far different from those
       present in this case. In Bock, the court found harmless error in the trial
       court’s failure to conduct a competency hearing in part because the
       defendant testified in his own defense* * *.

The facts in Were are analogous to the facts in this case. The appellant did not testify in

his own defense like the defendant in Were.    “This court has reversed cases for failure to

hold a competency hearing before accepting a guilty plea when a suggestion of

incompetency is left undeveloped in the record.” Macon, at ¶ 37.           Because Harris’s

competency to stand trial was raised before trial, there is not a record that the trial court

could have looked at to decide whether he was competent.       The statute is very clear that

the court shall hold a hearing when the defendant’s competency to stand trial is raised

before trial begins. R.C. 2945.37(B). We find that the trial court abused its discretion

when it did not hold a competency hearing. The conviction is reversed, and the case is

remanded to the trial court for a competency hearing and new trial.

       {¶13} We need not address the other assignments of error because assignment of

error three is dispositive of the case. App.R. 12.

       {¶14} Judgment is reversed and remanded.

       It is ordered that the appellant recover from appellee costs herein taxed.
       The court finds that there were reasonable ground for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry constitute the mandate pursuant to Rule 27 of the

Rule of Appellate Procedure.



____________________________________________
ANITA LASTER MAYS, JUDGE

MARY EILEEN KILBANE, P.J., CONCURS;
MELODY J. STEWART, J., DISSENTS WITH
SEPARATE OPINION
MELODY J. STEWART, J., DISSENTING:

       {¶15} I disagree that the court’s failure to conduct a competency hearing requires

reversal of the convictions. I therefore respectfully dissent.

       {¶16} Although R.C. 2945.37(B) makes it mandatory for the court to hold a

competency hearing if the issue of a defendant’s competency is raised prior to trial, see

State v. Were, 94 Ohio St.3d 173, 2002-Ohio-481, 761 N.E.2d 591, paragraph one of the

syllabus, the failure to do so is not a form of per se error that requires automatic reversal.

State v. Bock, 28 Ohio St.3d 108, 110, N.E.2d 1016 (1986).                  This is because

“competency is presumed and the defense bears the burden of proving incompetency.”

State v. Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, ¶ 89.

       {¶17} For this reason, the majority has it incorrect when it states that the court’s

act of ordering a competency evaluation removed the presumption of competency. Ante
at ¶ 19. Ordering a competency evaluation is not the same as declaring a defendant

incompetent — it is just the first step under R.C. 2945.37(B), which states that if the issue

of a defendant’s competency is raised before the trial has commenced, “the court shall

hold a hearing on the issue as provided in this section.” The defendant always has the

burden to rebut the presumption of competency and simply filing a motion raising the

issue does not change the presumption.

       {¶18} Harris did not file a motion to have his competency evaluated; it appears

that he raised the issue on a scheduled trial date.       The court referred Harris for a

competency evaluation, but from that point on, there is no other mention of his

competency. In fact, not only does the record fail to show any further mention of

Harris’s competency before or during trial, it shows that after the court continued the case

pending the psychiatric evaluation, trial was continued to a date made “at the request of

the defendant.” By requesting a trial date despite a pending motion for a competency

evaluation and failing to seek any further action on his pending motion as trial

commenced, Harris acted in a manner incompatible with his claimed incompetency to

stand trial.   The only reasonable conclusion is that he tacitly acknowledged his

competency and abandoned a claim of error on appeal. See State v. Macon, 8th Dist.

Cuyahoga No. 96618, 2012-Ohio-1828, ¶ 39.

       {¶19} Apart from abandoning his claim of incompetency, there is nothing in the

record to show that Harris was, in fact, incompetent.         In State v. Smith, 8th Dist.

Cuyahoga No. 95505, 2011-Ohio-2400, we stated:
       A hearing is not required in all situations, only those where the competency
       issue is raised and maintained. We acknowledge that once the issue is
       raised, there may be situations where the defendant exhibits outward signs
       indicating the lack of competency that may necessitate a hearing regardless
       of any stipulation. That issue is not present in the current case. The record
       does not contain any evidence that Smith exhibited any such signs.

Id. at ¶ 5
        {¶20} Admittedly, Harris did not testify in this case, but the fact remains that there

was nothing in the record to give any indication that he lacked competency to stand trial.

We have, in some cases, reversed convictions because the court failed to hold a

competency hearing where there was significant indicia that the defendant lacked

competency.      See, e.g, State v. McGrath, 8th Dist. Cuyahoga No. 91261,

2009-Ohio-1361 (defendant had previously been found incompetent and no evidence to

show restoration to competency); State v. Smith, 8th Dist. Cuyahoga No. 92649,

2010-Ohio-154 (court accepted guilty plea even though the defendant was experiencing

auditory hallucinations); State v. Cruz, 8th Dist. Cuyahoga No. 93403, 2010-Ohio-3717

(trial court erred by accepting a plea when a psychological assessment report prepared by

juvenile court in anticipation of transfer to court of common pleas suggested that juvenile

was incompetent to stand trial).

       {¶21} The only conceivable grounds for Harris’s motion was a statement defense

counsel made during voir dire to the effect that Harris suffered from narcolepsy, a

condition that might cause him to “nod off, wake back up.” But apart from that medical

condition, there was nothing in the record to show that Harris lacked mental competency.
While I agree that the court should have conducted a hearing after ordering the

competency evaluation, the error was harmless.
