[Cite as State v. Geary,

.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-160195 TRIAL NO. 14CRB-34322B Plaintiff-Appellee, :

vs. : O P I N I O N.

BRANDON GEARY, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed in Part, Sentence Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: September 28, 2016

Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Christopher Liu, Assistant City Prosecutor, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Demetra Stanatakos, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

F ISCHER , Presiding Judge.

{¶1} Defendant-appellant Brandon Geary was charged by complaint with

one count of disorderly conduct in violation of R.C. 2917.11(A)(4) and one count of

inducing panic in violation of R.C. 2917.31(A)(3) in connection his participation in a

protest on Interstate 75. Geary’s case proceeded to a jury trial where the state

presented testimony from three police officers generally describing Geary’s

involvement in an 80-100 person protest that had caused police to completely shut

down the interstate for 15-30 minutes to remove the protestors. Geary and two other

protestors testified for the defense. The jury acquitted Geary of disorderly conduct,

but convicted him of inducing panic. The trial court sentenced Geary to three days in

jail, credited him with time served, and imposed $858 in court costs. Geary filed a

Crim.R. 29(C) motion for an acquittal and/or a Crim.R. 33(A)(4) motion for a new

trial, which the trial court denied.

{¶2} Geary now appeals. He challenges the sufficiency and weight of the

evidence adduced at his jury trial to support his inducing-panic conviction, the trial

court’s jury instructions, and the trial court’s imposition of court costs. Because the

trial court imposed court costs of $858 in the judgment entry without announcing

the imposition of court costs at the sentencing hearing, we reverse the trial court’s

judgment with respect to court costs and remand the matter to the trial court for the

limited purpose of allowing Geary to move the trial court for a waiver of the payment

of court costs. We otherwise affirm the trial court’s judgment.

Jury Instructions

{¶3} We begin our analysis by addressing Geary’s third assignment of error.

In his third assignment of error, Geary argues the trial court erred in instructing the jury

2 OHIO FIRST DISTRICT COURT OF APPEALS

on the law relating to inducing panic and the First Amendment, which formed the basis

of Geary’s defense.

Inducing-Panic Instruction

{¶4} The record reflects that Geary was charged by complaint with

inducing panic under R.C. 2917.31(A)(3), which provides that “[n]o person shall * * *

cause serious public inconvenience by * * * committing any offense with reckless

disregard of the likelihood that its commission will cause serious public

inconvenience or alarm.”

{¶5} Thus, “committing any offense” is an essential element of inducing

panic that must be proven beyond a reasonable doubt. See In re P.T., 12th Dist.

Clinton No. CA2013-02-006,

; State v. Weber, 5th Dist. Stark

No. 2007 CA 00334,

.

{¶6} Here, the record reflects that the complaint specified a violation of

R.C. 2917.31(A)(3), but it did not specifically identify a predicate offense by statute

number. Rather it provided:

Inducing panic: R.C. 2917.31(A)(3):

P. Stoup, 177, being first duly cautioned and sworn, deposes and

says that Brandon Pierce Geary, on or about the 25th day of

November 2014, in Hamilton County, State of Ohio, did cause

serious public inconvenience or alarm, to-wit walking on I-75

preventing flow of traffic, by committing an offense, with reckless

disregard of the likelihood that its commission will cause serious

public inconvenience or alarm, contrary to and in violation of

Section 2917.31 of the Revised Code of Ohio, a misdemeanor of the

first degree.

3 OHIO FIRST DISTRICT COURT OF APPEALS

The complainant states that this complaint is based on arrested

walked [sic] onto roadway impeding the normal flow of traffic and

refused [sic] to exit roadway when ordered to do so by police.

{¶7} Geary sought a bill of particulars, but the city did not respond. Geary,

however, did not move to dismiss the complaint. Rather, he proceeded to trial on the

theory that the complaint had charged persistent disorderly conduct as the predicate

offense for the inducing-panic charge. In opening statement, the state argued that

the predicate offense for inducing panic was jaywalking.

{¶8} The state and Geary disagreed throughout the trial as to the predicate

offense for inducing panic. During a discussion of the proposed jury instructions, the

parties continued to disagree as to how the jury should be charged. Defense counsel

asserted that because persistent disorderly conduct and inducing panic were the

charged offenses, and the complaint for inducing panic alleged facts consistent with

persistent disorderly conduct, the jury should be instructed on persistent disorderly

conduct as the predicate offense. The city argued that the complaint charged a

jaywalking violation, and pointed to the language within the text of the complaint

that supported this assertion. The trial court gave defense counsel the option to use

either the exact verbiage of the complaint or the more precise language of R.C.

4511.50(B), but Geary’s counsel insisted that disorderly conduct serve as the

predicate offense. The trial court ultimately charged the jury based on the language

in the complaint.

{¶9} The trial court instructed the jury:

The defendant is charged with inducing panic. Before you can find

the defendant guilty, you must find beyond a reasonable doubt that

on or about the 25th day of November 2014, and in the City of

4 OHIO FIRST DISTRICT COURT OF APPEALS

Cincinnati, Hamilton County, Ohio, the defendant caused serious

public inconvenience by walking on I-75 and preventing the flow of

traffic with reckless disregard of the likelihood that its commission

would cause serious public inconvenience.

{¶10} “Due process requires that the state establish beyond a reasonable

doubt every fact necessary to constitute the crime charged.” State v. Lynn,

,

,

, ¶ 15. “As a general rule, a defendant is

entitled to have the jury instructed on all the elements that must be proved to

establish the crime with which he is charged * * *.” State v. Adams,

,

(1980). A trial court’s failure to include all the elements of

an offense in a charge to the jury is error. See Adams; see also R.C. 2945.11.

{¶11} If the defendant has preserved the error in the trial court, the

appellate court reviews the error under the harmless-error standard under Crim.R.

52(A). State v. Perry,

,

,

; see

State v. Neder,

,

,

(1999) (holding that the

omission of an element of an offense from a jury instruction did not fall within the

limited category of constitutional errors that defy analysis by harmless-error

standards). Crim.R. 52(A) defines harmless error and states that “any error, defect,

irregularity or variance which does not affect substantial rights shall be disregarded.”

Under the harmless-error standard, the government must show that the error did

not affect the substantial rights of the defendant. If the government does not make

this showing, then the appellate court has no discretion to disregard the error, but

must reverse the conviction. Perry at ¶ 15.

{¶12} The jury instruction on inducing panic did not identify a specific

predicate offense by statute number or list the elements of that offense. The question

5 OHIO FIRST DISTRICT COURT OF APPEALS

is whether this is harmless error. Geary argues that the insertion of the language

from the complaint, “walking on I-75 and preventing the flow of traffic,” was

prejudicial because that same conduct described elements of persistent disorderly

conduct, which easily confused and misled the jury because they had been told the

predicate offense for inducing panic was jaywalking. Geary contends that without a

proper definition, the jury was left to conclude that “walking on I-75 and preventing

the flow of traffic” was an offense in and of itself, which is not a correct statement of

the law. Thus, the jury could not have found him guilty of inducing panic as

instructed by the court. As a result, he asks this court to reverse his conviction and

remand for a new trial.

{¶13} The city argues that while the jury instruction on inducing panic could

have more precisely defined the predicate offense, it adequately described an offense.

The city argues that “walking on I-75 and preventing the flow of traffic” satisfies the

“committing any offense” element because it adequately describes the offense of

“Pedestrian Walking in Roadway” in violation of R.C. 4511.50(B). R.C. 4511.50(B)

provides that “any pedestrian walking along and upon a highway shall walk only on a

shoulder, as far as practicable from the edge of the roadway.” The city further

asserts that the trial court gave Geary the option to use either the exact verbiage of

the complaint or the more precise language of R.C. 4511.50(B), but that Geary’s

counsel insisted that disorderly conduct serve as the predicate offense. The trial

court decided to insert the language in the complaint.

{¶14} We agree with the city that the failure to correctly instruct the jury on

the law was harmless error that did not affect Geary’s substantial rights. The city’s

theory of the case with respect to the inducing-panic charge, as revealed during

opening statement, was that Geary had committed the offense of jaywalking by

6 OHIO FIRST DISTRICT COURT OF APPEALS

walking on the interstate. The city argued that Geary’s presence on the interstate

caused it to be shut down for 15-30 minutes. The evidence demonstrated beyond a

reasonable doubt that Geary had walked on the interstate. A police officer testified

that he had told protestors numerous times that it was a violation of law to walk on

the interstate yet the protestors remained on the interstate. Another police officer

testified that he had personally seen Geary walking among protestors in a lane of

travel on the interstate after the commands to leave the interstate had been given.

Geary himself admitted that there was a shoulder along the interstate, but that he

had walked and then kneeled in the lane of travel. Thus, we cannot say that but for

the failure to give a more concise jury instruction the outcome of the trial would have

been different. Accordingly, we conclude the trial court’s failure to specifically

identify R.C. 4511.50(B) as the predicate offense in the jury instruction was harmless

error.

First Amendment Instruction

{¶15} Geary next contends that the trial court erred by including an excerpt

from Cox v. New Hampshire,

,

,

(1941), as

part of the jury instruction on the First Amendment.

{¶16} The trial court gave the jury the following instruction on the First

Amendment:

The First Amendment protects free speech. The State cannot

prosecute someone for exercising his right to free speech. The law

applicable to this case is that protests of allegations of police

misconduct are protected speech and are protected by the First

Amendment and the defendant cannot be convicted of such

activity.

7 OHIO FIRST DISTRICT COURT OF APPEALS

However, where a restriction of the use of highways in that

relationship is designed to promote the public convenience and the

interest of all, it cannot be disregarded by the attempted exercise of

some civil right which in other circumstances would be entitled to

protection.

{¶17} Geary does not challenge the first paragraph of the jury instruction,

which he proposed and the trial court adopted. Rather, he challenges only the second

paragraph of the instruction, which the trial court adopted from the language in Cox,

over the objection of Geary’s counsel.

{¶18} During the trial, Geary’s counsel objected to this portion of the

instruction, arguing that the trial court should not include this language because Cox

had addressed a New Hampshire statute. In that case, the defendants, who had been

convicted of having a parade or procession on a public street without a special

license, challenged the validity and power of the licensing authority pursuant to the

statute under the First and Fourteenth Amendments. The United States Supreme

Court held that the statute was a reasonable regulation of “time, place, and manner

in relation to the other proper uses of the streets.” Cox,

,

,

. The trial court asked Geary’s counsel to propose alternative

language to the instruction, but Geary’s counsel refused to do so, claiming the first

paragraph should stand alone.

{¶19} Geary argues now, without citation to any authority, that such time,

place, and manner restrictions on expressive conduct are relevant only where the

constitutionality of a statute is questioned on First Amendment grounds. He

contends that because he did not challenge the constitutionality of any Ohio statute

8 OHIO FIRST DISTRICT COURT OF APPEALS

on First Amendment grounds, Cox is inapplicable and the trial court, therefore, erred

in providing the jury with this portion of the instruction. We disagree.

{¶20} Ohio courts, including this court, have uniformly recognized in

criminal cases that “the First Amendment has never conferred an absolute right to

engage in expressive conduct whenever, wherever, and in whatever manner a

speaker may choose.” See State v. Condon,

,

,

(1st Dist.), quoting Cincinnati v. Thompson,

,

(1st Dist. 1994); State v. Amireh, 4th Dist. Athens Nos. 15CA14,

15CA15 and 15CA16,

, ¶ 18-20. Rather, they have recognized that

when such conduct is imbued with communicative elements that would fall within

the First Amendment, the conduct is subject to time, place, and manner restrictions.

Condon at ¶ 23.

{¶21} For example, in Thompson, this court concluded that abortion

protestors had no right to trespass upon private property to express their views after

medical personnel had asked them to leave. Thompson at 16-18. Likewise, in City of

Cleveland v. Egeland,

,

(8th Dist. 1986), the

Eighth Appellate District concluded that a protestor’s conscientious belief in the

importance of protesting nuclear warfare did not provide him with a lawful purpose

to obstruct a roadway. In reaching its conclusion, the Eighth District expressly relied

on the United States Supreme Court’s opinion in Cox.

{¶22} Thus, contrary to Geary’s assertions, the second paragraph of the

instruction was not an improper statement of the law. Nor was the instruction

unnecessary based on the facts in this case. Geary’s counsel argued throughout the

trial that he had a right to exercise his First Amendment right to free speech. Had

the trial court just given the first part of the instruction, the jury could have

9 OHIO FIRST DISTRICT COURT OF APPEALS

concluded that Geary’s First Amendment rights rendered his conduct immune from

prosecution and that he was automatically entitled to a verdict of acquittal.

{¶23} Geary further argues that the instruction prejudiced and misled the

jury as evidenced by the following jury question: “Where did the highway decision to

the First Amendment come from? What was the basis?” But the record reflects that

Geary’s counsel invited such an inquiry when she asked the jury during closing

argument to question where the law had come from that would restrict Geary’s First

Amendment rights in relation to the use of the highways because the state had not

presented evidence of any such law in its case.

{¶24} Because the challenged jury instruction on the First Amendment was

a proper statement of the law, we cannot conclude the trial court erred in providing

this instruction to the jury. We, therefore, overrule the third assignment of error.

Sufficiency of the Evidence

{¶25} In his first assignment of error, Geary contends that the evidence was

insufficient to sustain his conviction for inducing panic. He argues that the city

failed to prove that (1) he had acted with reckless disregard that his actions would

cause a serious public inconvenience, (2) he had caused a serious public

inconvenience, or (3) had committed any offense.

{¶26} R.C. 2901.22(C) provides that a person acts recklessly when “with

heedless indifference to the consequences, he perversely disregards a known risk that

his conduct is likely to cause a certain result or is likely to be of a certain nature.”

{¶27} All three police officers testified that a group of 80-100 protestors had

walked on Interstate 75. Although two of the officers were at the back of the protest,

the third officer testified that he had warned the protestors by loudspeaker as they

approached the entrance ramp to the interstate not to enter the highway and that

10 OHIO FIRST DISTRICT COURT OF APPEALS

police cruisers were positioned at the bottom of the entrance ramp to block the

protestors from entering the interstate. Once the protestors had entered the

interstate, the officers shut down the interstate. Two officers had then utilized the

public address systems in their vehicles to make at least four to six, and up to a

dozen, announcements telling the protestors to leave the highway. When the

protestors did not leave the highway, it remained closed to the public for 15-30

minutes so the protestors could be removed from the interstate. Officer Ostermann

testified that he saw Geary on the interstate at the time of the second announcement.

{¶28} The jury could have found that Geary acted recklessly by walking past

the police who were blocking the entrance ramp to the interstate and then remaining

on the highway. To the extent that Geary argues his actions and testimony support a

different version of events, we address these arguments in the second assignment of

error as they focus more on the weight of the evidence than its sufficiency.

{¶29} Geary also argues that the city failed to prove that he caused a

“serious public inconvenience” because his conduct did not fall within the purpose of

the inducing-panic statute. See State v. Campbell,

, 2011-Ohio-

3458,

(1st Dist.) (holding that mere inconvenience to police

officers was not the type of conduct the inducing-panic statute was intended to

prohibit).

{¶30} Because the term “serious public inconvenience” is not defined in the

statute, Geary relies on the 1973 committee comment to H.B. 551, which amended

R.C. 2917.31. The comment provides that “the overall goal of the offense of inducing

panic was primarily to avoid the harm which may result from the panic.” It then

provides examples of false bomb threats, deceptively causing a meeting to be

cancelled due to a threat, and a free-for-all bar fight. Geary argues that because there

11 OHIO FIRST DISTRICT COURT OF APPEALS

was no evidence he made a false threat, deceptively caused the police to block traffic,

or engaged in violent behavior that caused people to flee from violence, as referenced

in the comments to the inducing-panic statute, the state failed to prove he caused a

serious public inconvenience.

{¶31} We disagree. The comments are merely illustrative and not

exhaustive of conduct that may cause “serious public inconvenience.” Here, the state

produced sufficient evidence that Geary caused a serious public inconvenience when

he and 80 to 100 protestors marched on Interstate 75 during the rush hour in the

middle of downtown Cincinnati and sat down in the lane of travel. Geary and the

other protestors’ presence on the highway caused the police to shut down the

interstate for 15 to 30 minutes until he and the other protestors could be removed,

thereby inconveniencing all the motorists on northbound Interstate 75. See, e.g.,

State v. Andrew, 1st Dist. Hamilton No. C-110141,

(defendant’s

actions in firing a gun at pursuing officers, causing four residential streets to be

closed and a store to be evacuated, was sufficient evidence that defendant had acted

with reckless disregard and had caused serious public inconvenience and alarm).

Thus, the state presented sufficient evidence to show that Geary had caused a serious

public inconvenience.

{¶32} Geary next asserts that the state failed to prove that he had

committed the predicate offense for inducing panic. Geary argues that if the

predicate offense for inducing panic was R.C. 4511.50(B), “pedestrian in the

roadway,” the statute could not serve as the predicate offense because it is a statute

of general conduct. He cites State v. Clancy, 2d Dist. Montgomery No. 18844, 2002-

Ohio-1881, as support for his position, but that case did not address a similar matter.

Moreover, Geary’s argument that R.C. 4511.50(B) could not serve as the predicate

12 OHIO FIRST DISTRICT COURT OF APPEALS

offense for inducing panic would seem to contradict the plain language of R.C.

2917.31(A)(3), which provides that “any” offense may serve as the predicate offense.

{¶33} Finally, we address Geary’s argument that the state could not proceed

with R.C. 4511.50(B) as the predicate offense for the inducing-panic charge, without

amending the complaint in violation of his due-process rights. Crim.R. 7(D)

addresses amendments to criminal complaints. It provides that “[t]he court may at

any time before or after a trial amend the indictment, information, complaint, or bill

of particulars, in respect to any defect, imperfection, or omission in form or

substance, or of any variance with the evidence, provided no change is made in the

name or identity of the crime charged.” The Ohio Supreme Court has held that “[a]n

indictment, which does not contain all the essential elements of an offense, may be

amended to include the omitted element, if the name or the identity of the crime is

not changed, and the accused has not been misled or prejudiced by the omission of

such element from the indictment.” State v. O’Brien,

,

(1987), paragraph two of the syllabus.

{¶34} The purpose of an indictment is to give notice to an accused of “that

which he may expect to meet and be required to answer; so that the court and jury

may know what they are to try, and the court may determine without unreasonable

difficulty what evidence is admissible.” Horton v. State,

, 19,

(1911); see State v. Sims, 1st Dist. Hamilton Nos. C-150252 and C-150253, 2015-

Ohio-4996, ¶ 15 (“the purpose of a charging instrument, such as a complaint is to

give the defendant adequate notice of the charge”).

{¶35} In Sims, the defendant argued that the trial court erred in convicting

him of first-degree-misdemeanor criminal damaging where the affidavit, the

complaint, and the judgment of conviction did not contain the degree of the offense

13 OHIO FIRST DISTRICT COURT OF APPEALS

or the additional element elevating the offense. We held that even though the

complaint did not contain the degree of the offense and the state had failed to track

the language of the statute with regard to the element of creation of a risk of physical

harm to a person, these omissions did not rise to the level of plain error because the

complaint contained the facts necessary to put Sims on notice that the aggravating

element applied. Id. at ¶ 17.

{¶36} Here, the failure to list the predicate offense in the complaint does not

rise to the level of plain error. Geary was on notice that the behavior at issue was his

walking on Interstate 75 and failing to leave when the police asked him to do so.

During opening argument, the city prosecutor told the jury that jaywalking was the

predicate offense for the inducing-panic charge. Geary’s defense in this case was not

that he did not walk on Interstate 75, it was that he did not hear the warnings that he

should not enter the highway or leave it. As a result, we find Geary’s argument

meritless. We, therefore, overrule his first assignment of error.

Manifest Weight of the Evidence

{¶37} In his second assignment of error, Geary challenges the weight of the

evidence adduced to support his conviction.

{¶38} To reverse a conviction on the manifest weight of the evidence, this

court must review the entire record, weigh the evidence, and all reasonable

inferences, consider the credibility of the witnesses, and conclude that, in resolving

the conflicts in the evidence, the trier of fact clearly lost its way and created a

manifest miscarriage of justice in finding the defendant guilty. State v. Thompkins,

,

(1997).

{¶39} Geary argues the jury lost its way in finding him guilty of inducing

panic for many of the same reasons enumerated under his sufficiency challenge. He

14 OHIO FIRST DISTRICT COURT OF APPEALS

first argues that the jury lost its way in finding that he had acted recklessly and that

he had caused a serious public inconvenience given the defense testimony precluding

such findings. But any discrepancies in the testimony between the state’s witnesses

and the defense witnesses regarding the timing of the warnings for the protestors to

leave the interstate and the closing of the interstate were matters of credibility for the

jury to decide. The jury was entitled to accord more weight to the officers’ testimony

than to the testimony provided by Geary and the two other protestors. See State v.

Railey, 1st Dist. Hamilton No. C-130307,

.

{¶40} Geary also argues the jury lost its way in convicting him of inducing

panic because there was no evidence that serious public inconvenience resulted from

a false alarm, threat, or deception that caused people to flee from violence. But, as

discussed under our sufficiency analysis, the presence of a false alarm, threat, or

deception is unnecessary to support a conviction for inducing panic under R.C.

2917.31(A)(3). Thus, the jury could have found Geary and the other protestors’

presence on the highway caused the police to shut down the interstate for 15 to 30

minutes until he and the other protestors could be removed, thereby

inconveniencing all the motorists on northbound Interstate 75.

{¶41} Finally, Geary argues that his acquittal of disorderly conduct renders

his conviction for inducing panic against the sufficiency and the manifest weight of

the evidence. Geary argues that because disorderly conduct served as the predicate

offense for the inducing-panic conviction, it makes no sense that he could be

acquitted of the predicate offense, but convicted of the compound offense. But

because the predicate offense for inducing panic was jaywalking, there is no

inconsistency in the verdicts. We, therefore, find Geary’s argument meritless, and we

overrule his second assignment of error.

15 OHIO FIRST DISTRICT COURT OF APPEALS

Court Costs

{¶42} In his fourth and final assignment of error, Geary argues the trial

court violated Crim.R. 43(A) by imposing court costs of $858 in the judgment entry

when it failed to address the imposition of court costs at the sentencing hearing.

{¶43} As a preliminary matter, we address the city’s argument that Geary is

precluded from challenging the imposition of court costs because he did not identify

the trial court’s judgment of conviction in the notice of appeal. Instead the city

argues that Geary only identified the trial court’s entry denying his posttrial motions.

App.R. 4(B)(3) tolls the time for filing a notice of appeal until the trial court has ruled

on all posttrial motions, including a motion for a new trial. See State v. Smith, 1st

Dist. Hamilton Nos. C-080712 and C-090505,

, ¶ 12. Geary’s appeal

from the final entry in his case, the trial court’s entry denying his posttrial motions,

would not preclude him from appealing the earlier judgment of conviction. With

respect to the content of the notice of appeal, the Ohio Supreme Court has held that

an error or defect in the notice of appeal, such as failing to specify the order from

which the appeal is taken, does not divest the court of appeals of jurisdiction. See

Maritime Mfrs., Inc. v. Hi-Skipper Marina,

,

(1982); Roberts v. Skaggs,

,

,

(1st Dist.); see also Jenkins v. Hill, 4th Dist. Meigs No. 14CA4,

.

{¶44} We thus turn to the merits of Geary’s argument. The Ohio Supreme

Court has held that a trial court’s failure to address court costs and fees at the

sentencing hearing and to then impose them in the journal entry is reversible error

that requires a remand for the limited purpose of remedying the error. State v.

16 OHIO FIRST DISTRICT COURT OF APPEALS

Joseph,

,

,

, 13 and 22; State v.

Throckmorton,

,

,

; see State v.

Carpenter, 1st Dist. Hamilton No. C-140423,

, ¶ 40-41 (following

Joseph). In Joseph, the state had argued that any error was harmless, but the

Supreme Court disagreed. It held that Joseph was harmed because he was “denied

the opportunity to claim indigency and to seek a waiver of the payment of court costs

before the trial court” and that “he should have that chance.” Joseph at ¶ 22.

{¶45} The record reflects that the trial court did not discuss the imposition

of court costs at the sentencing hearing. Whether the trial court or the clerk

ministerially imposed the court costs following the sentencing hearing, the reality is

that Geary had no opportunity to claim indigency and to seek a waiver of the

payment of those costs where he was sentenced immediately following the trial and

court costs were never discussed during the sentencing hearing.

{¶46} The city argues that any error by the trial court in failing to address

Geary regarding court costs is harmless because the record reflects that Geary is not

indigent and therefore, he is ineligible for a waiver of costs. The city points to

defense counsel’s statement during the sentencing hearing that Geary was currently

working at Urban Outfitters, and Geary’s testimony during the trial that he was

working as a manager at Urban Outfitters. But Geary should have the opportunity in

the first instance to present his claim for waiver of court costs to the trial court before

it imposes those costs. See Joseph at ¶ 22; Carpenter at ¶ 41. As a result, we sustain

Geary’s fourth assignment of error. We, therefore, reverse the portion of Geary’s

sentence imposing court costs and remand this cause to the trial court for the limited

purpose of allowing Geary to move the trial court in the first instance for a waiver of

the payment of court costs. We affirm the trial court’s judgment in all other respects.

17 OHIO FIRST DISTRICT COURT OF APPEALS

Judgment affirmed in part, sentence reversed in part, and cause remanded.

HENDON and CUNNINGHAM, JJ., concur.

Please note: The court has recorded its own entry this date.

18