[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 
-iATTORNEY 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. 

 1

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

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.