State v. Carter , 2010 Ohio 6316 ( 2010 )

[Cite as State v. Carter, 2010-Ohio-6316.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No: 10CA3169
:
v. :
: DECISION AND
CECIL R. CARTER, : JUDGMENT ENTRY
:
Defendant-Appellant. : File-stamped date: 12-21-10
APPEARANCES:
Timothy Young, Ohio Public Defender, Columbus, Ohio, and Jessica S. McDonald,
Ohio Assistant Public Defender, Chillicothe, Ohio, for Appellant.
Toni L. Eddy, Chillicothe Law Director, and Kathryn B. Janes, Chillicothe Assistant Law
Director, for Appellee.
Kline, J.:
{¶1} Cecil R. Carter (hereinafter “Carter”) appeals the judgment of the Chillicothe
Municipal Court, which found him guilty of theft. On appeal, Carter initially contends
that the trial court should have granted his request for the appointment of new counsel.
Because Carter did not show good cause for this request, we disagree. Carter also
contends that the trial court should have instructed the jury on (1) attempted theft and
(2) the affirmative defense of abandonment. Because the evidence did not support
either of these jury instructions, we disagree. Accordingly, we overrule Carter’s
assignments of error and affirm the judgment of the trial court.
I.
Ross App. No. 10CA3169 2
{¶2} On May 12, 2010, Carter entered a Wal-Mart store in Chillicothe. While in the
store, Carter loaded his shopping cart with $460.72 worth of merchandise. Carter did
not attempt to pay for the items. Nevertheless, he pushed the shopping cart past the
self-checkout cash registers and through the general merchandise doors.
{¶3} Wal-Mart employee Bubber Wright (hereinafter “Wright”) had been watching
Carter’s actions inside the store. After Carter exited through the general merchandise
doors, Wright confronted him about the merchandise in the shopping cart. Carter then
abandoned the shopping cart and ran into the parking lot. At trial, Wright described the
events in the following manner:
{¶4} “While out walking the floor, I noticed Mr. Carter in infants. His cart was full.
He had everything stacked very neatly, piled up. When he come out [sic] he was
looking around. I hid behind a wall where he couldn’t see me. He went through
women’s wear to the front of the fitting room. Then he proceeded to go down toward
the jewelry department. He stopped in the action alley in front of jewelry. He looked
around. Then he turned left. He went through the self-checks without an attempt to
pay. He turns right. He goes to the G.M. exit. I was following him at this time. I knew
he hadn’t paid for the merchandise. He goes to the G.M. exit. The door greeter, Sadie,
asked him twice for a receipt, but I was going to stop him anyway. He goes outside the
G.M. doors. I approach him. I ask him for his receipt. I identified myself as Asset
Protection for Wal-Mart. I asked him to come back inside that we needed to talk about
the merchandise that was in the cart. At that time, Mr. Carter bolted. He took off
running from me. He went toward the gas station. He got behind a vehicle and hid from
me. * * *.
Ross App. No. 10CA3169 3
{¶5} “Q Were you able to locate Mr. Carter?
{¶6} “A Yes. He popped up right at that point. He walks toward me and I ask him
once again that we need to talk about the merchandise that you pushed out. He said ‘I
didn’t push out anything.’ At that time he turned around. He ran to a green vehicle, 2-
door rag top [sic]. He jumps in and I immediately call the Chillicothe Police Department
and got a hold of the dispatcher. I identified the car and identified Mr. Carter.
{¶7} “* * *
{¶8} “Q Now you described something as G.M. door. What is that?
{¶9} “A General merchandise exit.
{¶10} “Q Is that the big, huge doors?
{¶11} “A Yes ma’am.
{¶12} “Q And that is used for entrance and exit to the store?
{¶13} “A Yes.
{¶14} “Q How far behind were you from Mr. Carter?
{¶15} “A When he exited, I was probably five foot [sic] behind him. I waited for him
to get outside the exit door. He was already on the outside.
{¶16} “Q Okay. And how far out the exit door was he when you talked to him first?
{¶17} “A Just right outside. Right outside the door. The cart was just outside the
door.
{¶18} “Q Did Mr. Carter say, ‘all my gosh, I forgot to pay, I need to go fix that?’
{¶19} “A No ma’am.
{¶20} “Q At what point did Mr. Carter run?
Ross App. No. 10CA3169 4
{¶21} “A When I identified myself. I said I need to talk to you about the
merchandise that you have in this cart. Then his eyes shifted. He looked around and
he ran to the left hand side of me.” TRIAL BY JURY Transcript at 53-54, 56-57.
{¶22} Eventually, the police apprehended Carter and charged him with theft under
Section 545.05 of the Revised Ordinances of the City of Chillicothe, Ohio (which is
analogous to R.C. 2913.02). Because he allegedly stole less than $500 worth of
merchandise, Carter was charged with a first-degree misdemeanor.
{¶23} On the morning of his trial, Carter requested new appointed counsel. The trial
court held a hearing on Carter’s request.
{¶24} “MR. CARTER: I told you I’d like to have other counsel represent me.
{¶25} “COURT: I’m not going to appoint another attorney for you sir.
{¶26} “MR. CARTER: I have the right to have counsel (inaudible . . .)
{¶27} “COURT: You don’t have that right sir.
{¶28} “MR. CARTER: The Criminal Rule and the Ohio Revised Code states that.
{¶29} “COURT: Well, I don’t believe that it does.
{¶30} “MR. CARTER: I believe it does. I’ll show it to you.
{¶31} “COURT: Well, you can take that up on appeal then if you think that is
necessary.
{¶32} “MR. CARTER: I do.
{¶33} “COURT: I’m not going to appoint another attorney. [Carter’s Appointed Trial
Counsel] has been representing you throughout this proceeding.
{¶34} “MR. CARTER: He’s not done nothing but tell me what you want to give me is
six months. He’s done nothing else but that.
Ross App. No. 10CA3169 5
{¶35} “COURT: Well, I’m not sure what else there is to tell you at this point.
{¶36} “MR. CARTER: He’s suppose[d] to represent me, not convict me.
{¶37} “* * *
{¶38} “MR. CARTER: I’ve told him to plea negotiate but he insisted it’s wrong.
{¶39} “COURT: Well, you can’t negotiate unless there’s two sides willing to
negotiate. There’s not really anything for you to negotiate at this point.” HEARING
BEFORE JURY TRIAL Transcript at 1-2.
{¶40} Carter went to trial with his appointed counsel. The state called Wright and a
Chillicothe Police Officer as witnesses. Then, the state rested its case. Carter rested
his case without calling any witnesses or producing any evidence.
{¶41} At the close of evidence, Carter requested jury instructions on (1) attempted
theft and (2) the affirmative defense of abandonment. The trial court, however, did not
give either of Carter’s requested jury instructions.
{¶42} The jury found Carter guilty of theft, and the trial court sentenced Carter to the
maximum sentence for a first-degree misdemeanor. He appeals and asserts the
following three assignments of error: I. “THE COURT BELOW ERRED IN RULING
THAT THE DEFENDANT DID NOT HAVE THE RIGHT TO FIRE HIS COURT
APPOINTED COUNSEL ON THE MORNING OF TRIAL.” II. “THE COURT BELOW
ERRED IN RULING THAT THE DEFENDANT WAS NOT ENTITLED TO A JURY
INSTRUCTION ON THE DEFENSE OF ABANDONMENT.” And, III. “THE COURT
BELOW ERRED IN RULING THAT THE DEFENDANT WAS NOT ENTITLED TO A
JUST INSTRUCTION ON AN ATTEMPT TO COMMIT THEFT.”
II.
Ross App. No. 10CA3169 6
{¶43} In his first assignment of error, Carter contends that the trial court should
have (1) discharged his appointed counsel and (2) appointed substitute counsel before
Carter’s trial.
{¶44} “A trial court’s decision regarding a request for substitute counsel is governed
by an abuse of discretion standard.” State v. Flesher, Monroe App. No. 06 MO 4, 2007-
Ohio-4982, at ¶19, citing State v. Murphy, 91 Ohio St. 3d 516, 523, 2001-Ohio-112;
State v. Smith (Dec. 29, 1998), Lawrence App. No. 98CA12. An abuse of discretion
connotes more than a mere error of judgment; it implies that the court’s attitude is
arbitrary, unreasonable, or unconscionable. State v. Adams (1980), 62 Ohio St. 2d 151,
157.
{¶45} “The defendant bears the burden of announcing the grounds for a motion for
appointment of new counsel. If the defendant alleges facts which, if true, would require
relief, the trial court must inquire into the defendant’s complaint and make the inquiry
part of the record.” Smith, citing State v. Deal (1969), 17 Ohio St. 2d 17, 20 (other
citations omitted). “Although the inquiry may be brief and minimal, the inquiry must be
made.” State v. Erwin, Franklin App. No. 09AP-918, 2010-Ohio-3022, at ¶8, citing State
v. King (1995), 104 Ohio App. 3d 434, 437. Grounds for obtaining newly appointed
counsel exist only upon a “showing of good cause, such as a conflict of interest, a
complete breakdown of communication, or an irreconcilable conflict which leads to an
apparently unjust result.” State v. Blankenship (1995), 102 Ohio App. 3d 534, 558, citing
State v. Pruitt (1984), 18 Ohio App. 3d 50, 57; see, also, Erwin at ¶7, citing Smith; State
v. Coleman (1988), 37 Ohio St. 3d 286, at paragraph four of the syllabus (“To discharge
a court-appointed attorney, the defendant must show a breakdown in the attorney-client
Ross App. No. 10CA3169 7
relationship of such magnitude as to jeopardize the defendant’s right to effective
assistance of counsel.”). If a defendant can show good cause, a trial court’s “failure to
honor the defendant’s timely request amount[s] to a denial of effective assistance of
counsel.” Pruitt at 57.
{¶46} Here, Carter failed to show good cause for the appointment of new counsel.
Carter alleged that his attorney did “nothing but tell [him] what [the trial court] want[ed]
to give [him was] six months. [Carter’s Appointed Trial Counsel did] nothing else but
that.” For that reason, Carter claimed that his appointed counsel (1) was not actually
representing Carter and (2) would not engage in plea negotiations. But here, we
disagree with Carter’s assessment of his appointed counsel. During Carter’s
sentencing, the trial court noted that Carter had “been arrested 30 times for theft related
offenses.” TRIAL BY JURY Transcript at 101. Additionally, the state noted that Carter
had “four prior theft convictions” in the Chillicothe Municipal Court and “[o]ne felony theft
conviction” in Ross County. TRIAL BY JURY Transcript at 100. Thus, based on his
history of theft, it was likely that Carter would receive the maximum sentence in the
present case. And we believe that Carter’s appointed counsel was merely informing
Carter of this fact. Carter may not have liked hearing this information, but that does not
mean that there was a complete breakdown in the attorney-client relationship. If it did,
any defendant who receives “bad news” from an attorney would be entitled to new
counsel.
{¶47} Therefore, Carter did not show good cause for the appointment of new
counsel, and the trial court did not abuse its discretion by denying Carter’s request for a
new attorney.
Ross App. No. 10CA3169 8
{¶48} Accordingly, we overrule Carter’s first assignment of error.
III.
{¶49} Because its resolution could impact his second assignment of error, we will
address Carter’s third assignment of error out of order. In his third assignment of error,
Carter contends that “it was error for the trial court to deny the defendant an instruction
on an attempted theft.” Brief of Defendant-Appellant at 4.
{¶50} “Generally, a trial court has broad discretion in deciding how to fashion jury
instructions. A trial court must not, however, fail to ‘fully and completely give the jury all
instructions which are relevant and necessary for the jury to weigh the evidence and
discharge its duty as the fact finder.’ State v. Comen (1990), 50 Ohio St. 3d 206, [at]
paragraph two of the syllabus. Additionally, a trial court may not omit a requested
instruction, if such instruction is ‘a correct, pertinent statement of the law and [is]
appropriate to the facts * * *.’ State v. Lessin[,] 67 Ohio St. 3d 487, 493, [1993-Ohio-52]
(quoting State v. Nelson (1973), 36 Ohio St. 2d 79, [at] paragraph one of the syllabus).
{¶51} “In determining whether to give a requested jury instruction, a trial court may
inquire into the sufficiency of the evidence to support the requested instruction. See
[Lessin] at 494. A trial court is therefore vested with discretion to determine whether
sufficient evidence was presented at trial [to] require[] a particular jury instruction.
[State v. Mitts, 81 Ohio St. 3d 223, 228, 1998-Ohio-635.] If, however, the evidence does
not warrant an instruction a trial court is not obligated to give the requested instruction.
See Lessin * * * at 494. Thus, in our review we must determine whether the trial court
abused its discretion by finding that the evidence was insufficient to support the
requested charge. See Mitts [at 228]; State v. Wolons (1989), 44 Ohio St. 3d 64, [at]
Ross App. No. 10CA3169 9
paragraph two of the syllabus[.]” Smith v. Redecker, Athens App. No. 08CA33, 2010-
Ohio-505, at ¶51-52. See, also, State v. Gary, Hamilton App. No. C-090643, 2010-
Ohio-5321, at ¶23; State v. Jordan, Trumbull App. No. 2009-T-0110, 2010-Ohio-5183,
at ¶27; State v. McClendon, Montgomery App. No. 23558, 2010-Ohio-4757, at ¶13; but,
see, State v. Howard, Ross App. No. 07CA2948, 2007-Ohio-6331, at ¶27 (“[T]he issue
of whether an instruction is required presents a question of law for de novo review.”).
{¶52} “R.C. 2913.02(A) [and Section 545.05 of the Chillicothe City Ordinances]
prohibit[] a person, ‘with purpose to deprive the owner of property,’ from ‘knowingly’
obtaining or exerting ‘control’ of the property without the consent of the owner. R.C.
2923.02 defines criminal ‘attempt’ as ‘engag[ing] in conduct that, if successful, would
constitute or result in the offense.’” State v. Lee, Cuyahoga App. No. 87972, 2007-
Ohio-288, at ¶33 (emphasis sic).
{¶53} Here, we find that the evidence did not warrant an instruction on attempted
theft. The facts in the present case are nearly identical to the facts in State v.
Randazzo, Cuyahoga App. No. 79667, 2002-Ohio-2250. In Randazzo, the defendant
was convicted of stealing merchandise from a Home Depot. At trial, the defendant
requested a jury instruction on attempted theft, which the trial court did not give. On
appeal, the defendant “claim[ed] that the jury should have been instructed on * * *
attempted theft since his actions reflect[ed] a thwarted attempt at theft.” Id. at ¶49. The
Eighth District Court of Appeals, however, disagreed and found the following: “R.C.
2913.02 defines theft as knowingly obtaining possession of or exerting control over
property with the purpose to permanently deprive the owner of possession of such
property without the owner’s consent. The property must be moved with the intent to
Ross App. No. 10CA3169 10
deprive the owner of his property. State v. Williams (1984), 16 Ohio App. 3d 232[.] The
property need not be removed from the premises of the owner nor retained in the
possession of the thief to constitute theft. Id. * * *.
{¶54} “[In Randazzo], defendant had completed every act necessary to commit the
crime of theft. Defendant filled a shopping cart full of tiles, which were the property of
Home Depot, and then walked outside the store with the merchandise until he was
apprehended by an employee. Defendant moved well past a mere attempt to steal the
merchandise[.]” Randazzo at ¶51-52.
{¶55} We agree with the analysis in Randazzo and apply that reasoning to the
present case. Here, Carter moved well past a mere attempt to steal the merchandise
from Wal-Mart. The evidence demonstrates that Carter filled a shopping cart full of
products. Those goods were the property of Wal-Mart, and Carter walked outside the
store without attempting to pay for the merchandise. Carter abandoned the
merchandise only after being confronted by Wright. Significantly, there is no evidence
that Carter was unsuccessful in exerting control over the merchandise. See Lee at ¶35
(The defendant “was successful in exercising control over the stores’ property, since he
left the stores without paying for the items. [The defendant’s] failure to escape with the
property does not prove he made only an ‘attempt.’”) (emphasis sic). Instead, the
evidence clearly demonstrates that Carter exerted control over the merchandise by (1)
putting the items in a shopping cart and (2) pushing the shopping cart outside the store.
As a result, the trial court did not abuse its discretion by refusing to instruct the jury on
attempted theft.
{¶56} Accordingly, we overrule Carter’s third assignment of error.
Ross App. No. 10CA3169 11
IV.
{¶57} In his second assignment of error, Carter contends that the trial court erred by
failing to instruct the jury on the affirmative defense of abandonment.
{¶58} We will review Carter’s second assignment of error under the abuse-of-
discretion standard discussed in the preceding section. Moreover, “‘[t]he standard for
determining whether a criminal defendant has successfully raised an affirmative
defense under R.C. 2901.05 is to inquire whether the defendant has introduced
sufficient evidence which, if believed, would raise a question in the minds of reasonable
people concerning the existence of that defense. State v. Melchior (1978), 56 Ohio
St.2d 15, [at] paragraph one of the syllabus. R.C. 2901.05(A) provides that the burden
of going forward with the evidence of an affirmative defense, as well as the burden of
proving the existence of that defense by a preponderance of the evidence, lie with the
accused. * * * The trial court, as matter of law, cannot give a jury instruction on an
affirmative defense if the defendant fails to meet this initial burden. State v. Reedy
(Dec. 11, 1996), Jackson App. No. 96CA782[.]’” State v. Porozynski, Cuyahoga App.
No. 93827, 2010-Ohio-5122, at ¶23, quoting State v. Powell (Sept. 29, 1997), Ross
App. No. 96CA2257.
{¶59} “R.C. 2923.02 provides for the criminal offense of attempt. Abandonment is
an affirmative defense to a charge of attempted theft under R.C. 2923.02(D), which
states:
{¶60} ‘It is an affirmative defense to a charge under this section that the actor
abandoned the actor’s effort to commit the offense or otherwise prevented its
commission, under circumstances manifesting a complete and voluntary renunciation of
Ross App. No. 10CA3169 12
the actor’s criminal purpose.’” State v. McGhee, Lucas App. No. L-06-1210, 2007-Ohio-
6527, at ¶16-17, quoting R.C. 2923.02(D).
{¶61} Here, we find that the evidence did not warrant an instruction on the
affirmative defense of abandonment. Initially, the state contends that abandonment is
an affirmative defense to a charge of attempted theft, but not to a charge of theft under
either R.C. 2913.02 or Section 545.05 of the Chillicothe City Ordinances. We agree.
Therefore, “[b]ecause the trial court was not required to instruct the jury regarding
attempted theft, it follows that an abandonment instruction was not required either.”
State v. Cadle, Summit App. No. 24064, 2008-Ohio-3639, at ¶16, citing R.C.
2923.02(D).
{¶62} Furthermore, because there is no evidence that Carter completely and
voluntarily renounced his criminal purpose, an abandonment instruction would have
been inappropriate in the present case. We agree that there can be “no ‘complete and
voluntary renunciation’ of a criminal purpose as required under R.C. 2923.02(D) when
the abandonment of the criminal activity is undertaken under fear of imminent detection
or apprehension.” McGhee at ¶28, citing State v. Arnold (1983), 9 Ohio Misc.2d 14, 14-
15. See, also, State v. Greene (Dec. 14, 1993), Pickaway App. No. 92 CA 32 (“Many
courts have agreed that the act of ending a crime due to the fear of detection is not a
‘complete and voluntary renunciation.’”); 26 Ohio Jurisprudence 3d, Criminal Law,
Section 648 (“Renunciation of criminal purpose is not voluntary if it is motivated, in
whole or in part, by circumstances not present or apparent at the inception of the actor’s
course of conduct that increase the probability of detection or apprehension or that
make more difficult the accomplishment of the criminal purpose.”). And here, the
Ross App. No. 10CA3169 13
evidence demonstrates that Carter abandoned the shopping cart full of merchandise
only after being confronted by Wright. Because Carter presented no evidence to the
contrary, there is no evidence that Carter’s actions were complete and voluntary as
required by R.C. 2923.02(D). Therefore, no reasonable person could have found a
question regarding the affirmative defense of abandonment.
{¶63} Accordingly, the trial court did not abuse its discretion by refusing to instruct
the jury on the affirmative defense of abandonment, and we overrule Carter’s second
assignment of error. Having overruled all of his assignments of error, we affirm the
judgment of the trial court.
JUDGMENT AFFIRMED.
Ross App. No. 10CA3169 14
Harsha, J., concurring:
{¶64} I concur in judgment and opinion except to the extent the opinion adopts an
abuse of discretion standard for the entire jury instruction analysis. I continue to believe
we should conduct a de novo review to see if any instruction on the issue is warranted
and then afford the trial court the discretion to craft the actual wording of the instruction.
See State v. Powell, Ross App. No. 96CA2257, 1997 WL 602864, citing Murphy v.
Carrollton Mfg. Co. (1991), 61 Ohio St.3d. 585, 591.
Ross App. No. 10CA3169 15
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Chillicothe Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J.: Concurs in Judgment and Opinion with Opinion.
Abele, J.: Concurs in Judgment only.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.