State v. Clark , 2018 Ohio 4789 ( 2018 )

[Cite as State v. Clark, 2018-Ohio-4789.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. CT2018-0006
:
ZAIRE L. CLARK :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2017-0173
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 29, 2018
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
D. MICHAEL HADDOX OHIO PUBLIC DEFENDER
MUSKINGUM CO. PROSECUTOR NIKKI TRAUTMAN BASZYNSKI
GERALD V. ANDERSON 250 East Broad St. – Ste. 1400
27 North Fifth St., P.O. Box 189 Columbus, OH 43215
Zanesville, OH 43702-0189
Muskingum County, Case No. CT2018-0006 2
Delaney, J.
{¶1} Appellant Zaire L. Clark appeals from the November 17, 2017 Judgment
Entry of the Muskingum County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant and Vincent Brown have an on-again, off-again relationship;
Brown describes appellant as his fiancée. In 2016, the two had a number of “legal issues”
with each other that resulted in Brown’s conviction for violation of a temporary protection
order. Brown served a prison term and was on post-release control as of May 7, 2017.
Brown was ordered not to have contact with appellant, but he was admittedly staying with
appellant at her home at least periodically.
{¶3} Appellant at the time was living at 1236 Putnam Avenue. This residence is
very close to 1227 Moxahala and 1227½ Moxahala. 1227½ is an in-law suite occupied
by Jennie Uhlman. Uhlman is a longtime neighbor and friend of both appellant and
Brown. Uhlman’s daughter Sylvia lives at 1227.
Brown’s account
{¶4} Brown asked Uhlman if he could occasionally sleep on her couch so he
could remain close to appellant but avoid being in violation of the terms of his post-release
control.1 Uhlman agreed.
{¶5} Brown testified at trial for appellee and acknowledged appellant has a
“mercurial temperament” with swift, drastic mood changes. Brown testified these are
symptoms of her mental illness and are exacerbated by drug abuse. On May 6, 2017,
1 Testimony varied as to where Brown lived. He told law enforcement he was living at
1227½ Moxahala, but the evidence indicated he lived with appellant and tried to hide the
fact so as to not be in violation of the terms of his post-release control.
Muskingum County, Case No. CT2018-0006 3
appellant had not slept for a long period of time and became upset when she went through
Brown’s phone. Brown woke up in the late night hours of May 6 as appellant ordered him
to leave and threatened to call police to have him sent back to prison.
{¶6} Brown asked Uhlman if he could sleep on her couch and she helped him
move a few belongings over to her residence. The items Brown brought with him included
a small flat-screen T.V. Brown testified he didn’t tell appellant where he was going.2 Once
he moved his items to Uhlman’s, he laid down on the couch and fell asleep. He woke up
to find appellant carrying the small T.V. out the door of Uhlman’s residence. Brown
testified he didn’t see appellant enter the residence; the door had been closed and dead-
bolted but it wasn’t secure because the window in the door was broken and had Plexiglass
taped over it.
{¶7} Upon the commotion in the living room, Uhlman also woke up and came
into the room. Brown told her appellant had come to take the T.V. back and that he was
going back to sleep. He and Uhlman closed the door and put a curio cabinet against the
door to keep it closed. Brown testified he wanted to avoid an altercation with appellant
because he didn’t want to return to prison. He was unconcerned about the T.V. and went
back to sleep.
{¶8} Appellant returned and knocked on the door. In Brown’s account, Uhlman
came to the door and told her to go home. At some point appellant was back inside the
house, the curio cabinet was overturned, and Uhlman was attempting to push her out.
Brown claimed not to have seen appellant enter the residence. According to Brown,
2Minor inconsistencies are throughout the witnesses’ accounts. For example, Brown said
he didn’t tell appellant where he was going, but Uhlman said appellant called her and
asked if Brown could stay there.
Muskingum County, Case No. CT2018-0006 4
appellant and Uhlman ended up fighting outside the house. Brown claimed he “didn’t
know who started what,” and he could only confirm that Uhlman asked appellant to leave.
Uhlman’s account
{¶9} Uhlman testified that appellant called her in the evening hours of May 6,
2017, and was very upset because she wanted Brown out of the house. Uhlman agreed
Brown could sleep on her couch and helped him gather some belongings including a
small T.V.
{¶10} Uhlman awoke in the early morning hours of May 7 to the sound of glass
shattering and Brown yelling. Uhlman put on a housecoat and went into the living room
to discover her door had been “busted in,” appellant was in the living room, and Brown
was upset that she was there. Someone called the police or claimed to have called police,
so appellant left. Uhlman suspected appellant would return so she and Brown placed a
curio cabinet in front of the door.
{¶11} Appellant did return and knocked over the curio cabinet. Brown told Uhlman
appellant took the T.V. According to Uhlman, she herself stumbled over the curio cabinet
as she went to look out the door. As she looked out, Uhlman said she was suddenly
struck across the face with a metal pole. The pole turned out to be the handle of a steam
mop, without the mop-head attachment. A photo of the mop handle was admitted as
appellee’s exhibit C-26. Appellant and Uhlman then struggled with each other, fighting.
Uhlman testified her daughter and other bystanders broke up the fight. Appellant
retreated to her own residence.
{¶12} Uhlman further testified that the “pole” or “mop handle” she was struck with
did not come from her house; the door to her home was dead bolted but not secure due
Muskingum County, Case No. CT2018-0006 5
to the Plexiglass taped over the window; and she didn’t give appellant permission to enter
her home.
Additional witnesses
{¶13} Sylvia Myers, Uhlman’s daughter, testified she was awakened by a friend
telling her appellant was beating up Myers’ mother. Myers ran outside and tried to
separate the two. Myers testified appellant struck Uhlman across the face with a metal
“cleaning tool” which she then threw to the ground. Appellant then walked back to her
own residence. Myers added that appellant seemed to be angry with Uhlman because
she accused Brown of being involved with another of Uhlman’s daughters.
{¶14} Zanesville police were brought to the area of Putnam and Moxahala by
multiple 911 calls. The first caller alleged a black male with a gun was in the area. This
911 call was played at trial and witnesses identified the caller as appellant. Detective Jon
Hill testified the call was determined to be “fake;” no man with a gun was found, no gun
was found at the scene, and no one else reported a man with a gun.
{¶15} Police took statements from the witnesses and photographed Uhlman’s
injuries.
{¶16} Police went to appellant’s residence to investigate. While speaking with
appellant, Ptl. Brian Ruff observed her demeanor was very erratic; she was speaking
quickly and disjointedly. He believe appellant was under the influence of narcotics. Inside
appellant’s residence, Ruff observed the butt of a firearm on a chair in the living room.
He asked whether it had been left behind by Brown and appellant said no, it was a BB
gun. She then showed him a stun gun she used for “safety.” Ruff observed drug
Muskingum County, Case No. CT2018-0006 6
paraphernalia in plain view throughout the living room, including a spoon with black
residue on the coffee table and a loaded syringe.
{¶17} Law enforcement obtained a search warrant for appellant’s residence.
Drugs and drug paraphernalia were found throughout the residence, photographed, and
collected. The parties jointly stipulated that substances found in the residence tested as
4.31 grams of methamphetamine and 2.08 grams of heroin and fentanyl.
{¶18} Appellant was charged by indictment as follows: Count I, burglary pursuant
to R.C. 2911.12(A)(1), a felony of the second degree; Count II, aggravated burglary
pursuant to R.C. 2911.11(A)(1), a felony of the first degree; Count III, aggravated burglary
pursuant to R.C. 2911.11(A)(2), a felony of the first degree; Count IV, felonious assault
pursuant to R.C. 2903.11(A)(2), a felony of the second degree; and Count V, drug
possession (methamphetamine) pursuant to R.C. 2925.11(A), a felony of the third degree.
{¶19} Appellant entered pleas of not guilty and the matter was scheduled for trial
by jury to proceed on September 6, 2017.
{¶20} On August 31, 2017, appellant filed a motion to “relinquish” her counsel.3
The trial court addressed the matter at a hearing on September 5, 2017, and ordered a
competency evaluation of appellant prior to determining her motion to waive her right to
counsel.
{¶21} A competency hearing was held on October 27, 2017, and the parties
stipulated to admission of an expert report finding appellant is “with a reasonable degree
of psychological certainty, [ ] presently capable of assisting in her defense * * *.” Also on
3 Attorney Keith Edwards was appointed defense trial counsel.
Muskingum County, Case No. CT2018-0006 7
that date, the trial court denied appellant’s request to waive counsel and ordered that
Edwards would continue as defense trial counsel.
{¶22} The matter proceeded to trial by jury. Appellant was found guilty upon
Counts III and V (aggravated burglary and drug possession) and not guilty upon Counts
II and IV (aggravated burglary and felonious assault).4
{¶23} On December 11, 2017, appellant filed a pro se “motion for acquittal.”
{¶24} A sentencing hearing was held on December 18, 2017. The trial court
overruled appellant’s motion for acquittal and imposed, e.g., an aggregate prison term of
10 years.
{¶25} Appellant now appeals from the trial court’s entry of conviction and
sentence dated December 19, 2017.
{¶26} Appellant raises four assignments of error:
ASSIGNMENTS OF ERROR
{¶27} “I. THE TRIAL COURT ERRED WHEN IT DENIED [APPELLANT] HER
RIGHT TO SELF-REPRESENTATION.”
{¶28} “II. [APPELLANT’S] AGGRAVATED-BURGLARY CONVICTION WAS
BASED UPON INSUFFICIENT EVIDENCE.”
{¶29} “III. [APPELLANT’S] AGGRAVATED-BURGLARY CONVICTION WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
4 Appellee moved to dismiss Count I, burglary, prior to commencement of closing
arguments, and the trial court granted the motion to dismiss.
Muskingum County, Case No. CT2018-0006 8
{¶30} “IV. THE PROSECUTOR ENGAGED IN MISCONDUCT DURING THE
SENTENCING HEARING, WHICH RESULTED IN THE IMPOSITION OF A TEN-YEAR
TERM OF IMPRISONMENT UPON [APPELLANT].”
ANALYSIS
I.
{¶31} In her first assignment of error, appellant argues the trial court erred in
denying her motion to represent herself. We disagree.
{¶32} The Sixth Amendment to the United States Constitution and Section 10,
Article I of the Ohio Constitution provides that a criminal defendant has a right to counsel.
Crim.R. 44(A) provides that a defendant is entitled to counsel “unless the defendant, after
being fully advised of his right to assigned counsel, knowingly, intelligently, and voluntarily
waives his right to counsel.”
{¶33} A criminal defendant also has the constitutional right to waive counsel and
to represent herself at trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d
562 (1975). The waiver of counsel has been described as “a stormy sea for a trial court
to navigate.” State v. Gatewood, 2nd Dist. Clark No. 2008 CA 64, 2009-Ohio-5610, ¶ 34.
{¶34} “[T]he Constitution * * * require[s] that any waiver of the right to counsel be
knowing, voluntary, and intelligent * * *.” Iowa v. Tovar, 541 U.S. 77, 87–88, 124 S.Ct.
1379, 158 L.Ed.2d 209 (2004). “In order to establish an effective waiver of [the] right to
counsel, the trial court must make sufficient inquiry to determine whether defendant fully
understands and intelligently relinquishes that right.” State v. Gibson, 45 Ohio St.2d 366,
345 N.E.2d 399 (1976), paragraph two of the syllabus. The defendant must make an
intelligent and voluntary waiver with the knowledge [s]he will have to represent [her]self,
Muskingum County, Case No. CT2018-0006 9
and that there are dangers inherent in self-representation. State v. Ebersole, 107 Ohio
App.3d 288, 293, 668 N.E.2d 934 (3rd Dist.1995), citing Faretta, supra.{¶35} In Gibson, the Ohio Supreme Court applied the test set forth in Von Moltke
v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), which established the
requirements for a sufficient pretrial inquiry by the trial court into a waiver of counsel:
To be valid such waiver must be made with an apprehension
of the nature of the charges, the statutory offenses included within
them, the range of allowable punishments thereunder, possible
defenses to the charges and circumstances in mitigation thereof, and
all other facts essential to a broad understanding of the whole matter.
A judge can make certain that an accused's professed waiver of
counsel is understandingly and wisely made only from a penetrating
and comprehensive examination of all the circumstances under
which such a plea is tendered.
State v. Gibson, 45 Ohio St.2d 366, 377, 345 N.E.2d 399(1976).
{¶36} The right of self-representation is not absolute. Indiana v. Edwards, 554
U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008); see also, Martinez v. Court of Appeal
of Cal., Fourth Appellate Dist., 528 U.S. 152, 163, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000)
[no right of self-representation on direct appeal]; McKaskle v. Wiggins, 465 U.S. 168, 178-
179, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) [appointment of standby counsel over self-
represented defendant's objection is permissible]; Faretta, supra, 422 U.S., at 835, n. 46,
95 S.Ct. 2525, 45 L.Ed.2d 562 [no right ‘to abuse the dignity of the courtroom’].”
Muskingum County, Case No. CT2018-0006 10
{¶37} Moreover, the U.S. Supreme Court has held the right of self-representation
does not exist to “avoid compliance with ‘relevant rules of procedural and substantive law’
or to ‘engage[e] in serious and obstructionist misconduct.’“ Indiana v. Edwards, 554 U.S.
164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), citing Faretta, supra at 834, n. 46. “A trial
court must be permitted to distinguish between a manipulative effort to present particular
arguments and a sincere desire to dispense with the benefits of counsel.” U.S. v. Frazier-
El, 204 F.3d 553, 560 (2000); see also, State v. Norris, 5th Dist. Stark No. 2007CA00101,
2008-Ohio-4089, 120 Ohio St.3d 1489, 2009-Ohio-278, 900 N.E.2d 199 [defendant's
failure to comply with procedural rules demonstrated manipulation, not desire to invoke
right of self-representation].
{¶38} Courts are to indulge in every reasonable presumption against the waiver
of a fundamental constitutional right such as the right to be represented by counsel. State
v. Dyer, 117 Ohio App.3d 92, 95, 689 N.E.2d 1034 (2d Dist.1996) (emphasis added). A
criminal defendant must “unequivocally and explicitly invoke” her right to self-
representation. State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶
38. When a request for self-representation is not unequivocally and timely made, the trial
court may, in its discretion, deny the request. State v. Halder, 8th Dist. Cuyahoga No.
87974, 2007-Ohio-5940, ¶ 50.
{¶39} There is no prescribed colloquy to establish an effective waiver; the
information a defendant must possess to make an intelligent election “‘depend[s] on a
range of case-specific factors, including the defendant's education or sophistication, the
complex or easily grasped nature of the charge, and the stage of the proceeding.’” State
Muskingum County, Case No. CT2018-0006 11
v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 101, quoting Iowa
v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004).
{¶40} The trial court is in the best position to determine whether appellant’s waiver
of counsel is knowing and intelligent. “The trial court was not required to surrender the
courtroom to a defendant who wished to represent [herself] but failed to demonstrate that
[she] waived the right to counsel knowingly and intelligently.” State v. Buchanan, 8th Dist.
No. 104500, 2017-Ohio-1361, 88 N.E.3d 686, ¶ 17, appeal not allowed, 150 Ohio St.3d
1444, 2017-Ohio-7843, 82 N.E.3d 1176.
{¶41} In the instant case, we disagree with appellant’s characterization of her
actions as an unequivocal, explicit invocation of her right to represent herself. Appellant
asked to “relinquish” counsel with her letter to the trial court of August 31, 2017. The trial
court addressed the request at the hearing on September 5, noting that appellant’s
communication with the court about several issues led the court to seriously question her
competency. The trial court therefore ordered a competency evaluation and held the
remainder of appellant’s requests in abeyance, including the request to represent herself.
{¶42} On October 27, 2017, the parties appeared for a competency hearing and
stipulated to the expert report. The hearing continued as follows:
* * * *.
THE COURT: The Court has before it the report of Dr.
Shannon Porter indicating that she finds that the defendant is
competent to—has the ability to work with counsel and assist in her
defense, should she choose to do so. And it did indicate that her
Muskingum County, Case No. CT2018-0006 12
personality style may pose a challenge for any attorney that may be
involved in the case.
The Court finds, based upon the stipulation of the report, that
the defendant is competent to stand trial, and the matter will proceed
according to law.
Next, the Court will deal with the issue of her request to
represent herself. This indicates that you are competent to assist an
attorney but not that you’re an attorney. It is not indicated in this
report.
Obviously, the problems that you have led me to have this
evaluation done because you have sent out numerous letters to
myself, to the prosecutor, and everybody else that indicates that you
are not aware of what could hurt you and what could help you.
Therefore, you need an attorney to represent you.
You requested Mr. Edwards the first time they went to talk to
you about getting an attorney. Mr. Edwards is your attorney. He will
assist you. You will work with him, and you will not get mad and yell
and scream and rant and rave. Do you understand?
THE DEFENDANT: Yes, Your Honor.
THE COURT: He will assist you. He will let you know when
the trial has been set, and he’ll help you prepare your defense and
let you proceed to trial. You cooperate with him. He is an excellent
attorney, handles numerous cases, as you just saw in this courtroom.
Muskingum County, Case No. CT2018-0006 13
He knows what he’s doing. Listen to him, and he will help you. You’ll
be remanded to the custody of the sheriff, and your new trial date will
be set.
THE DEFENDANT: May I say something?
THE COURT: Yes, you may.
THE DEFENDANT: Can—may I have the evidence he denied
me of, the pictures that has to do with my case that he denied me on
a phone call?
THE COURT: Mr. Edwards, what pictures is she talking
about?
MR. EDWARDS: I have provided her all of the—a full copy of
any non-counsel-only paper discovery. And then the electronic
discovery, I took my laptop in to the jail and showed her all the
pictures. She wants printouts of additional pictures in addition to
what was provided in paper discovery. I told her I’m not giving her
those.
THE COURT: Are there other pictures?
MR. EDWARDS: She’s seen every single piece of discovery.
We’ve gone through every page of it carefully.
THE DEFENDANT: Your Honor, he gave me pictures that—
two of them’s not even has anything to do with my case because the
charges was dropped. (Sic throughout.)
THE COURT: He gave you what the prosecutor gave him.
Muskingum County, Case No. CT2018-0006 14
THE DEFENDANT: He said he was going to give them to me-
-
THE COURT: He cannot create something he does not have.
THE DEFENDANT: --and then he said he was not because I
was acting like a lunatic. So he denied me my evidence one—over
the phone call, recorded phone call. He said he’s not giving me my
evidence. He told me he was going to give them to me, have them
in color, instead of distorted.
THE COURT: This is why you can’t represent yourself. Hold
on one second. He just stated in this courtroom he has shown you
all the evidence he has. Is that correct?
MR. EDWARDS: That’s right.
THE DEFENDANT: He did state that, but he was supposed
to give me copies of the pictures and he stated that also.
THE COURT: Have you given her copies?
MR. EDWARDS: I’ve given her a copy of all the paper
discovery, and I’ve shown her all of the electronic discovery, played
every interview that was recorded. I believe I’ve given her and shown
her and shared with her and made her aware of everything the State
has given me on two occasions. And we’ll do it again with her before
trial.
THE COURT: Obviously, in prepping for trial, you will review
everything all over again.
Muskingum County, Case No. CT2018-0006 15
THE DEFENDANT: Well, he’s saying something different
beside what he said on the phone. If you go back to the phone call,
you will hear it.
THE COURT: Well, it doesn’t matter what he said on the
phone call. That is what he’s saying now, and that is what he’s going
to do. You just assured me you will cooperate with him.
THE DEFENDANT: I did, but that’s--
THE COURT: That’s what you two are going to do. And
you’re going to be quiet and go have a seat, and they’ll take you back
to the jail.
T. II, 3-7.
{¶43} We review a trial court's denial of a request for self-representation asserted
prior to the commencement of trial de novo. See, State v. Degenero, 11th Dist. Trumbull
No. 2015-T-0104, 2016-Ohio-8514, ¶ 19, appeal not allowed, 149 Ohio St.3d 1421, 2017-
Ohio-4038, 75 N.E.3d 238.
{¶44} In the instant case, we find appellant revoked her request to represent
herself and accepted the representation of appointed counsel. State v. Cook, 5th Dist.
No. 2015CA00090, 2016-Ohio-2823, 64 N.E.3d 350, ¶ 90. We do not find, and appellant
does not point to, any renewal of her request to represent herself after the letter of August
31, 2017.
{¶45} Appellant argues she should have been permitted to represent herself, but
as of the competency hearing of October 27, and again by the time of trial on November
14, there is no evidence appellant sought to proceed pro se. Nor was counsel forced upon
Muskingum County, Case No. CT2018-0006 16
her. Appellant agreed to the appointment of Attorney Edwards, who continued to
represent her at trial. We are thus unable to find that appellant voluntarily, knowingly, and
intelligently elected to represent herself because the record establishes her acceptance
of court-appointed counsel. Id. at ¶ 91.
{¶46} Our conclusion is in accord with the decision of the Ohio Supreme Court
finding if the record definitively demonstrates a defendant abandoned her request to
represent herself, as it does here, there is no violation of the Sixth Amendment right to
self-representation. Cook, supra, 2016-Ohio-2823 at ¶ 93, citing State v. Obermiller, 147
Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93.
{¶47} The trial court was patient with, and respectful of, appellant; listened to her
arguments; attempted to explain the process; and permitted appellant to raise the
discovery issues she was concerned about. State v. West, 2nd Dist. Greene No. 2015-
CA-72, 2017-Ohio-7521, ¶ 48. The court also diligently attempted to ascertain whether
appellant truly wanted to represent herself or whether she wanted to proceed with
counsel; but she was not clear and unequivocal about her desire to proceed on her own
behalf. Id. As is evident from the exchange cited supra, appellant’s concern was access
to the alleged missing discovery.
{¶48} We are unable to conclude the trial court erred in keeping Edwards in place
as court-appointed counsel. We conclude appellant waived the request to represent
herself because she consented to Edwards’ representation, did not renew her request to
represent herself, and permitted counsel to act on her behalf at trial.
{¶49} The expert assessment of appellant’s competence has been made part of
the record for our review. The report states in pertinent part, “* * *[I]t is also my opinion,
Muskingum County, Case No. CT2018-0006 17
with a reasonable degree of psychological certainty, that the defendant is currently
capable of understanding the nature and objective of the legal proceedings and assisting
counsel in her own defense (if she chooses to do so.) * * * *. [Emphasis in original.] In
this case, after the trial court observed appellant’s erratic behavior in open court and
through her pro se communications, the court determined that it was necessary for
appellant to undergo an evaluation to determine whether she fully understood and
intelligently relinquished her right to counsel. See, State v. Cedeno, 8th Dist. Cuyahoga
No. 102327, 2015-Ohio-5412, ¶ 28, appeal not allowed, 145 Ohio St.3d 1460, 2016-Ohio-
2807, 49 N.E.3d 321. The parties stipulated to the report finding appellant competent to
stand trial. “Nevertheless, a trial court may rely on its own observations to determine
whether to grant a defendant's request to proceed pro se, which may be contrary to the
expert reports.” Cedeno, supra, 2015-Ohio-5412 at ¶ 29, citing State v. Were, 118 Ohio
St.3d 448, 2008–Ohio–2762, 890 N.E.2d 263 [court may rely on own observations to
determine competency]. In this case, the trial court relied on its own observations and
interactions with appellant, appellant did not renew her request to represent herself, and
consented to representation by appointed counsel.
{¶50} Appellant’s first assignment of error is overruled.
II., III.
{¶51} Appellant’s second and third assignments of error are related and will be
considered together. She argues her aggravated-burglary conviction is not supported by
sufficient evidence and is against the manifest weight of the evidence. We disagree.
{¶52} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,
Muskingum County, Case No. CT2018-0006 18
1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review
for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio
Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.”
{¶53} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶54} Sufficiency of the evidence is a legal question dealing with whether the state
met its burden of production at trial. State v. Murphy, 5th Dist. Stark No. 2015CA00024,
2015–Ohio–5108, ¶ 13, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d
541 (1997). “Specifically, an appellate court's function, when reviewing the sufficiency of
the evidence to support a criminal conviction, is to examine the evidence admitted at trial
Muskingum County, Case No. CT2018-0006 19
to determine whether such evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt.” Murphy at ¶ 15. The test for sufficiency of
the evidence raises a question of law and does not permit the court to weigh the evidence.
State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶55} The relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. Murphy at ¶ 15, citing
Thompkins at 386.
{¶56} In the instant case, appellant was convicted of aggravated burglary
pursuant to R.C. 2911.11(A)(2), which states in pertinent part: “No person, by force,
stealth, or deception, shall trespass in an occupied structure * * *, when another person
other than an accomplice of the offender is present, with purpose to commit in the
structure * * * any criminal offense, if any of the following apply: [t]he offender has a
deadly weapon or dangerous ordnance on or about the offender's person or under the
offender's control.”
{¶57} Appellant argues appellee’s evidence failed to meet two elements: no
evidence exists she trespassed inside Uhlman’s home, and the mop handle was not a
deadly weapon.
{¶58} The jury could reasonably find the mop handle wielded in the instant case
was a “deadly weapon” and the finding is not against the manifest weight of the evidence.
A “deadly weapon” is any instrument, device, or thing capable of inflicting death, and
designed or specially adapted for use as a weapon, or possessed, carried, or used as a
weapon. R.C. 2923.11(A). An instrument, no matter how innocuous when not in use, is
Muskingum County, Case No. CT2018-0006 20
a deadly weapon if it is of sufficient size and weight to inflict death upon a person, when
the instrument is wielded against the body of the victim or threatened to be so wielded.
State v. Deboe, 62 Ohio App.2d 192, 193–94, 406 N.E.2d 536, 537 (6th Dist.1977). The
manner of use of the instrument, its threatened use, and its nature determine its capability
to inflict death. Id. A factfinder may “infer the deadly nature of an instrument from the
facts and circumstances of its use.” State v. Vondenberg, 61 Ohio St.2d 285, 289, 401
N.E.2d 437 (1980). Examples of deadly weapons vary. See, State v. Deboe, 62 Ohio
App.2d 192, 193–94, 406 N.E.2d 536, 537 (6th Dist.1977) [bat “wrapped with something
spongy”]; State v. Pope, 3rd Dist. Logan No. 8-89-19, 1990 WL 157268, *4 [toilet plunger
handle]; State v. Ford, 2nd Dist. Montgomery No. CA 14389, 1995 WL 19114, *2 [metal
bar]; State v. Smith, 8th Dist. Cuyahoga No. 103676, 2016-Ohio-7708 [chair leg]; State v.
Redmon, 5th Dist. Stark No. CA-7938, 1990 WL 94745, *2, appeal dismissed, 56 Ohio
St.3d 711, 565 N.E.2d 834 (1990) [wicker rocking chair].
{¶59} In the instant case, Uhlman testified appellant struck her hard across the
face with the mop handle. Uhlman was not rendered unconscious but she did sustain
bruising and injury to her face as illustrated by appellee’s exhibit B-4. She still suffered
pain from the incident as of the date of trial six months later. It was a question of fact for
the jury to determine whether the mop handle was a deadly weapon within the definition
of R.C. 2923.11(A), and upon the evidence, this court is not in a position to disturb its
conclusion. State v. Pope, supra, 3rd Dist. Logan No. 8-89-19, 1990 WL 157268, *4.
{¶60} Appellant next argues there is insufficient evidence she entered Uhlman’s
residence with the mop handle, although she acknowledges a police officer testified
witnesses told him that night appellant entered the residence with some type of sweeper
Muskingum County, Case No. CT2018-0006 21
or broomstick. We have held that the testimony of one witness, if believed by the
factfinder, is enough to support a conviction. See, State v. Dunn, 5th Dist. Stark No. 2008–
CA–00137, 2009–Ohio–1688, ¶ 133. Appellee’s photographs demonstrate appellant
entered the residence by thrusting her hand through the Plexiglass-covered window in
the door, as shown in appellee’s exhibits C-7 and C-13. The curio cabinet was knocked
over and broken (appellee’s exhibits C-8, C-9, and C-11). The small T.V. Brown brought
with him was gone and later found in appellant’s residence.
{¶61} Appellant’s specific argument is that the evidence does not establish she
trespassed in Uhlman’s residence with the mop handle. The mop handle came from
appellant’s residence. Uhlman was struck with it as she looked out her door. Myers saw
appellant holding the cleaning tool as she fought with Uhlman. The sticker from the mop
handle was found on the ground right outside 1227½. Appellee’s exhibits C-5 and C-6
show the sticker just outside the threshold.
{¶62} The weight to be given the evidence introduced at trial and the credibility of
the witnesses are primarily for the trier of fact to determine. State v. Thomas, 70 Ohio
St.2d 79, 434 N.E.2d 1356 (1982), syllabus. It is not the function of an appellate court to
substitute its judgment for that of the factfinder. State v. Jenks, 61 Ohio St.3d 259, 279,
574 N.E.2d 492 (1991).
{¶63} Any inconsistencies in the witnesses’ accounts were for the trial court to
resolve. State v. Dotson, 5th Dist. Stark No. 2016CA00199, 2017-Ohio-5565, ¶ 49. “The
weight of the evidence concerns the inclination of the greater amount of credible evidence
offered in a trial to support one side of the issue rather than the other.” State v. Brindley,
10th Dist. Franklin No. 01AP–926, 2002–Ohio–2425, ¶ 16. We defer to the trier of fact as
Muskingum County, Case No. CT2018-0006 22
to the weight to be given the evidence and the credibility of the witnesses. State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), at paragraph one of the syllabus.
When assessing witness credibility, “[t]he choice between credible witnesses and their
conflicting testimony rests solely with the finder of fact and an appellate court may not
substitute its own judgment for that of the finder of fact.” State v. Awan, 22 Ohio St.3d
120, 123, 489 N.E.2d 277 (1986). “Indeed, the factfinder is free to believe all, part, or
none of the testimony of each witness appearing before it.” State v. Pizzulo, 11th Dist.
Trumbull No. 2009–T–0105, 2010–Ohio–2048, ¶ 11. Furthermore, if the evidence is
susceptible to more than one interpretation, a reviewing court must interpret it in a manner
consistent with the verdict. Id.{¶64} The finder of fact may take note of the inconsistencies and resolve or
discount them accordingly, but such inconsistencies do not render defendant's conviction
against the manifest weight of the evidence. State v. Nivens, 10th Dist. Franklin No.
95APA09–1236, 1996 WL 284714, at *3 (May 28, 1996).
{¶65} Upon our review of the entire record, we conclude appellant's aggravated
burglary conviction is supported by sufficient evidence and is not against the manifest
weight of the evidence. Appellant's second and third assignments of error are overruled.
IV.
{¶66} In her fourth assignment of error, appellant argues the prosecutor
committed misconduct during the sentencing hearing. We disagree.
{¶67} Appellant points to several instances of alleged prosecutorial misconduct at
the sentencing hearing, when the prosecutor referenced the following: she assaulted
Uhlman despite acquittal upon the charges related to the assault; appellant was “beating
Muskingum County, Case No. CT2018-0006 23
up” people in jail; heroin was found in the apartment but she wasn’t charged for it; and
she “set up” Brown to get shot by police with the false 911 call.
{¶68} The statement about appellant’s conduct in jail is merely an allegation, and
the Rules of Evidence do not apply at sentencing hearings. State v. Jackson, 6th Dist.
No. E–01–024, 2002–Ohio–2359, ¶ 38; Evid.R. 101(C)(3) (“These rules * * * do not apply
in the following situations: * * * sentencing * * *.”).
{¶69} The remaining statements are arguable characterizations of the evidence
at trial. The test for prosecutorial misconduct is whether the prosecutor's remarks and
comments were improper and if so, whether those remarks and comments prejudicially
affected the substantial rights of the accused. State v. Lott, 51 Ohio St.3d 160, 555 N.E
.2d 293 (1990), cert. denied, 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed .2d 596 (1990). In
reviewing allegations of prosecutorial misconduct, we must review the complained-of
conduct in the context of the entire trial. Darden v. Wainwright, 477 U.S. 168, 106 S.Ct.
2464, 91 L.Ed.2d 144 (1986). Prosecutorial misconduct will not provide a basis for
reversal unless the misconduct can be said to have deprived appellant of a fair trial based
on the entire record. Lott, supra, 51 Ohio St.3d at 166. In assessing the existence of
prosecutorial misconduct, we are mindful that “the touchstone of this analysis is the
fairness of the [proceeding], not the culpability of the prosecutor.” State v. Twyford, 94
Ohio St.3d 340, 355 (2002).
{¶70} We note appellant did not object to these statements during the sentencing
hearing. State v. Snyder, 3rd Dist. Seneca No. 13-12-38, 2013-Ohio-2046, ¶ 42. If trial
counsel fails to object to the alleged instances of prosecutorial misconduct, the alleged
improprieties are waived, absent plain error. State v. White, 82 Ohio St.3d 16, 22, 1998–
Muskingum County, Case No. CT2018-0006 24
Ohio–363, 693 N.E.2d 772 (1998), citing State v. Slagle, 65 Ohio St.3d 597, 604, 605
N.E.2d 916 (1992).
{¶71} We therefore review appellant's allegations under the plain-error standard.
Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.” The rule places
several limitations on a reviewing court's determination to correct an error despite the
absence of timely objection at trial: (1) “there must be an error, i.e., a deviation from a
legal rule,” (2) “the error must be plain,” that is, an error that constitutes “an ‘obvious'
defect in the trial proceedings,” and (3) the error must have affected “substantial rights”
such that “the trial court's error must have affected the outcome of the trial.” State v. Dunn,
5th Dist. Stark No. 2008–CA–00137, 2009–Ohio–1688, citing State v. Morales, 10 Dist.
Franklin Nos. 03–AP–318, 03–AP–319, 2004–Ohio–3391, at ¶ 19. The decision to correct
a plain error is discretionary and should be made “with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v.
Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
{¶72} Appellant points to no authority supporting her position that the contested
statements at sentencing rose to the level of prosecutorial misconduct. Moreover, we
disagree with appellant’s conclusion that the trial court relied upon these statements to
the prejudice of appellant. The trial court heard the evidence and the jury’s verdict. The
trial court noted the P.S.I. factored in the sentencing and it has been included in the record
for our review. The trial court was more concerned with appellant’s lengthy criminal
record including 2 prior felony and 19 misdemeanor convictions. “In light of the trial court's
consideration of the entire record, we cannot find that several sentences spoken by the
Muskingum County, Case No. CT2018-0006 25
prosecutor amount to prosecutorial misconduct that affected the outcome of [appellant’s]
sentence.” State v. Snyder, 3rd Dist. Seneca No. 13-12-38, 2013-Ohio-2046, ¶ 48.
{¶73} We find no evidence in the record that the trial court relied on the
prosecutor’s comments in imposing appellant's sentence. The P.S.I. and the testimony
and information presented at the sentencing hearing supports the trial court's decision.
See, State v. Warwick, 12th Dist. Preble No. CA2017-01-001, 2018-Ohio-139, ¶ 31
{¶74} Assuming for the sake of argument that the prosecutor's remarks were
improper, appellant has not demonstrated prejudice. It is well-established that pursuant
to R.C. 2929.12(A), the trial court may consider “any relevant factors in imposing a
sentence.” State v. Hurst, 12th Dist. Brown No. CA2014-02-004, 2014-Ohio-4890, ¶ 21,
citing State v. Birt, 12th Dist. Butler No. CA2012–02–031, 2013–Ohio–1379, ¶ 64. The
trial court expressly stated on the record that it formulated the sentence based upon the
P.S.I. and appellant’s history of violence as documented therein, and appellant has not
pointed to anything in the record that would suggest that the trial court relied on the
prosecutor's statements when it sentenced her. State v. Reed, 9th Dist. Medina No.
11CA0080-M, 2012-Ohio-2827, ¶ 8, citing State v. Dennis, 79 Ohio St.3d 421, 433 (1997)
[The trial court is presumed to consider “only the relevant, material, and competent
evidence in arriving at a judgment, unless the contrary affirmatively appears from the
record.”].
{¶75} Appellant does not dispute any of the convictions identified by the trial court
during the sentencing hearing or in the P.S.I., nor does she claim that her sentence is
contrary to law. Reed, supra, 2012-Ohio-2827, ¶ 9. We are thus unable to find that the
statements reach the level of plain error and prosecutorial misconduct. State v. Snyder,
Muskingum County, Case No. CT2018-0006 26
3rd Dist. Seneca No. 13-12-38, 2013-Ohio-2046, ¶ 48, citing State v. Combs, 62 Ohio
St.3d 278, 283 *** (1991) [finding that the prosecutor's “gross speculation” was improper
but that it did not rise to the level of plain error since the statement did not make a “crucial
difference”]. See also, State v. Thompson, 11th Dist. Geauga No. 1378, 1988 WL 88350,
*3 [“The court made it clear that it was imposing punishment only for the crime with which
appellant had been charged * * * and did not improperly impose a sentence longer than
that sentence recommended by the parties].
{¶76} Appellant’s fourth assignment of error is overruled.
CONCLUSION
{¶77} Appellant’s four assignments of error are overruled and the judgment of the
Muskingum County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Wise, Earle, J., concur.