All Courts

State Courts

Ohio Court of Appeals

2020-03

State v. Struckman , 2020 Ohio 1232 ( 2020 )

Menu:

         [Cite as State v. Struckman,

2020-Ohio-1232

.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO,                                    :      APPEAL NO. C-180287
TRIAL NO. B-1502231
Plaintiff-Appellee,                       :
O P I N I O N.
vs.                                             :
BUDDY STRUCKMAN,                                  :
Defendant-Appellant.                          :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 31, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
M OCK , Presiding Judge.
{¶1}   Following a jury trial, defendant-appellant Buddy Struckman was
convicted of two counts of unlawful possession of a dangerous ordnance under R.C.
2923.17(A), namely an automatic weapon and a suppressor. He was also convicted
of two specifications under R.C. 2941.144 that he had possessed an automatic
firearm that was equipped with a suppressor. Struckman has filed a timely appeal
from those convictions. We find no merit in his three assignments of error, and we
affirm his convictions.
Factual Background
{¶2}   The record shows that on April 20, 2015, Officer Drew Jones of the
Lockland Police Department received a dispatch about shots fired in the area of
Maple Street and Locust Avenue. Officer Jones had interacted with Struckman at a
house located at 622 Maple Street, which was near to that area. He and his partner
drove to that address to investigate.
{¶3}   The officers received no response when they knocked on the door. At
that time, they noticed security cameras attached to the house and became worried
for their safety. The officers decided to call in the SWAT team. They also obtained a
search warrant for the premises.
{¶4}   When the SWAT team approached the front door, they saw Struckman
on the first floor of the house near the front door. After they used “flash bangs,”
Struckman came out of the residence, and the SWAT team turned him over to the
Lockland police officers. Then the SWAT team entered to search for any people or
devices that would pose a threat to the police.
2
OHIO FIRST DISTRICT COURT OF APPEALS
{¶5}   After the SWAT team left, the Lockland police officers conducted their
search. The only part of the house that appeared to be habitable was the second
floor. The main living area was an eight-by-ten-foot room, a walkout front balcony.
In the room, the police officers found a couch, a coffee table, a rug, a television
monitor, and a microwave. They also found a garbage bag full of men’s clothing, a
suitcase, men’s shoes, empty drink cups, and empty fast-food bags.
{¶6}   Under the couch cushions, the officers found a .45-caliber handgun.
There were nine rounds of ammunition in the gun’s ten-round magazine. Other
loaded magazines and a holster for the gun were also found in the room.
{¶7}   The room had a small closet. Officer Jones found the closet door ajar,
and there was evidence that the SWAT team may have forced open the door. The
closet contained a suit jacket and men’s dress clothes.
{¶8}   The officers also found a locked safe inside the closet. Inside the safe,
they found a .45-caliber MAC-10 machine gun, six loaded magazines of ammunition,
a suppressor that fit the machine gun, and a detached stock.         They also found
approximately 600 rounds of .45-caliber ammunition. A firearm examiner from the
Hamilton County Coroner’s Office determined that the MAC-10 was a functioning
fully-automatic weapon. He also determined that the homemade suppressor was
made for that weapon.
{¶9}   The officers waited several days to file charges against Struckman
because they first wanted to contact federal authorities. When they came to arrest
Struckman five days later, they found him at the house at 622 Maple Street, where
they had previously interacted with him.
3
OHIO FIRST DISTRICT COURT OF APPEALS
Weight and Sufficiency
{¶10} In his first assignment of error, Struckman contends that his
convictions and the accompanying specifications were not supported by sufficient
evidence and were against the manifest weight of the evidence. He argues that he
state failed to prove that he had constructive possession of the automatic weapon
and the suppressor. This assignment of error is not well taken.
{¶11} Struckman was convicted of two counts of unlawful possession of a
dangerous ordnance under R.C. 2923.17(A), which states that “[n]o person shall
knowingly acquire, have, carry, or use any dangerous ordnance.”             Former R.C.
2923.11(K)(1) and (5) defined an automatic weapon and a muffler or suppressor as
dangerous ordnances.
{¶12} To “have” a dangerous ordnance within the meaning of the statute, the
offender must actually or constructively possess it. State v. Williams,

197 Ohio App.3d 505

2011-Ohio-6267

968 N.E.2d 27

, ¶ 14 (1st Dist.). Courts have defined
constructive possession as “knowingly exercising dominion and control over an
object, even though the object is not within the person’s immediate physical
possession.” State v. English, 1st Dist. Hamilton No. C-080872,

2010-Ohio-1759

, ¶
32, citing State v. Hankerson,

70 Ohio St.2d 87

434 N.E.2d 1362

 (1982), syllabus.
The person must be “conscious of the presence of the object.” Hankerson at 91;
Williams at ¶ 15. The state may prove dominion and control and consciousness of
the object by circumstantial evidence. Williams at ¶ 15; English at ¶ 32.
{¶13} As to the specifications, former R.C. 2941.144 provided for the
imposition of a six-year prison term if the indictment contained a specification that
“the offender had a firearm that is an automatic firearm or that was equipped with a
firearm muffler or suppressor on about the offender’s person or under the offender’s
4
OHIO FIRST DISTRICT COURT OF APPEALS
control while committing the offense.” (Emphasis added.) This court has stated that
in proving a specification, the state need not show that the defendant actually
possessed a weapon, but instead may show constructive possession. See State v.
Jackson, 1st Dist. Hamilton No. C-140178,

2014-Ohio-5008

, ¶ 18-19. Accord State v.
Walker, 10th Dist. Franklin No. 14AP-905,

2016-Ohio-3185

, ¶ 63-64. In regard to
the firearm specification in R.C. 2941.141, we stated that “the state does not need to
demonstrate that the defendant used the firearm to commit a felony; all that is
required is that the defendant have the firearm on or about his person or under his
control ‘at some point’ during the commission of the crime.” English at ¶ 28, quoting
State v. Harry, 12th Dist. Butler No. CA2008-01-0013,

2008-Ohio-6380

, ¶ 53.
{¶14} The state presented circumstantial evidence to show that Struckman
was living on the second floor of the property at 622 Maple Street, where police
found the dangerous ordnances.         The other two floors of the house were
uninhabitable. The first floor was under construction, and the third floor was used
as a chicken coop. The house was owned at the time by Struckman’s ex-wife. The
police officers testified that they frequently encountered Struckman there. They
knew him well due to complaints by the neighbors about him and his own
complaints to police. On police reports he filed, Struckman listed his address as 622
Maple Street. Struckman’s white Chevy truck was often parked outside. The officers
had never seen anyone else at the house, and they had never known Struckman to
stay anywhere else.
{¶15} On the day the shots were fired, the police officers and the SWAT team
formed a perimeter around the house to prevent anyone from entering or leaving.
Struckman was the only person found at the house. The second floor appeared to be
lived in, and they found furniture, a microwave, a toaster oven, and fast-food
5
OHIO FIRST DISTRICT COURT OF APPEALS
wrappers on the second floor, as well as weapons and ammunition. They also found
men’s clothing in the closet, along with the safe containing the automatic weapon
and suppressor.     The officers testified that the living area was quite small,
approximately eight by ten feet.
{¶16} The officers waited several days to file charges against Struckman.
When they came to arrest Struckman five days later, they found him at the house.
No one else was present. On bond forms, he listed his address as 622 Maple Street.
{¶17} Thus, the state presented circumstantial evidence showing that
Struckman was the only person who exercised dominion and control over the area
where the dangerous ordnances were found and that he would have been conscious
of their presence. See State v. Finnell, 1st Dist. Hamilton Nos. C-140547 and C-
140548,

2015-Ohio-4842

, ¶ 41-45; State v. Brown, 1st Dist. Hamilton No. C-120327,

2013-Ohio-2720

, ¶ 43; English, 1st Dist. Hamilton No. C-080872,

2010-Ohio-1759

,
at ¶ 28-29; State v. Bailey, 1st Dist. Hamilton Nos. C-060089 and C-060091, 2007-
Ohio-2014, ¶ 35-40. The state also presented circumstantial evidence to show that
Struckman had an automatic firearm and a suppressor under his control while
committing the offenses.
{¶18} The record shows that a rational trier of fact could have found that the
state had proven beyond a reasonable doubt all of the elements of the two counts of
unlawful possession of a dangerous ordnance and the accompanying specifications.
Therefore, the evidence was sufficient to support the convictions. See State v. Jenks,

61 Ohio St.3d 259

574 N.E.2d 492

 (1991), paragraph two of the syllabus; Brown at ¶
44; Williams,

197 Ohio App.3d 505

2011-Ohio-6267

968 N.E.2d 27

, at ¶ 25-26.
{¶19} Further, after reviewing the record, we cannot say that the trier of fact
lost its way and created such a manifest miscarriage of justice that we must reverse
6
OHIO FIRST DISTRICT COURT OF APPEALS
Struckman’s convictions and order a new trial. Therefore, the convictions were not
against the manifest weight of the evidence. See State v. Thompkins,

78 Ohio St.3d 380

, 387,

678 N.E.2d 541

 (1997); Brown at ¶ 45.
{¶20} Struckman presented witnesses who testified that Struckman did not
live at 622 Maple Street in Lockland. But the jury did not find that evidence to be
credible, and matters as to the credibility of evidence were for the trier fact to decide.
State v. Bryan,

101 Ohio St.3d 272

2004-Ohio-971

804 N.E.2d 433

, ¶ 116; State v.
Wright,

2017-Ohio-1568

90 N.E.3d 162

, ¶ 59 (1st Dist.). Therefore, we overrule
Struckman’s first assignment of error.
Waiver of Counsel
{¶21} In his second assignment of error, Struckman contends that he was
deprived of his Sixth Amendment right to counsel when his request for counsel
during trial was denied. He argues that the trial court failed to obtain a waiver of
counsel after his midtrial request for counsel. This assignment of error is not well
taken.
{¶22} A criminal defendant’s right to counsel during the critical stages of the
prosecution is guaranteed by both the United States Constitution and the Ohio
Constitution. State v. Martin,

103 Ohio St.3d 385

2004-Ohio-5471

816 N.E.2d 227

,
¶ 22; State v. Jackson, 1st Dist. Hamilton No. C-180160,

2019-Ohio-2933

, ¶ 5.
Embodied in that right is a “correlative right to dispense with a lawyer’s help.”
Martin at ¶ 23, quoting Adams v. United States ex rel. McCann,

317 U.S. 269

, 279,

63 S.Ct. 236

87 L.Ed. 268

 (1943). A defendant in a state criminal trial has an
independent constitutional right to represent him or herself at trial without counsel
when the defendant knowingly, intelligently, and voluntarily chooses to waive
7
OHIO FIRST DISTRICT COURT OF APPEALS
counsel. Martin at ¶ 24; Jackson at ¶ 5; State v. Furr, 1st Dist. Hamilton No. C-
170046,

2018-Ohio-2205

, ¶ 6.
{¶23} Crim.R. 44 governs the procedure for waiver of counsel in “serious
offense” cases.   A “serious offense” includes any felony.     Crim.R. 2(C).    Under
Crim.R. 44(A), when a defendant is unable to obtain counsel, counsel must be
assigned to represent the defendant in all stages of the proceedings, unless the
defendant, after being fully advised of his right to counsel, knowingly, intelligently,
and voluntarily waives his right to counsel. Furr at ¶ 7. The waiver must be made in
open court and must be in writing. Crim.R. 44(C).
{¶24} The written waiver is not constitutionally required, so a trial court
needs only to substantially comply with Crim.R. 44. Martin at ¶ 38; Furr at ¶ 8. A
court substantially complies with Crim.R. 44 when it makes a sufficient inquiry to
determine whether the defendant fully understands and intelligently relinquishes the
right to counsel. Martin at ¶ 39; Furr at ¶ 8.
{¶25} The trial court should explain to the defendant “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 the other facts essential to a broad understanding of the
whole matter.” State v. Gibson,

45 Ohio St.2d 366

, 377,

345 N.E.2d 399

 (1976);
Furr, 1st Dist. Hamilton No. C-170046,

2018-Ohio-2205

, at ¶ 9, The court must also
inform the defendant of the disadvantages of self-representation and explain that the
defendant will be required to follow the same rules of procedure and evidence that
normally govern the conduct of a trial. Furr at ¶ 9; State v. Murphy, 1st Dist.
Hamilton No. C-170390,

2018-Ohio-1063

, ¶ 6.
8
OHIO FIRST DISTRICT COURT OF APPEALS
{¶26} The defendant’s assertion of the right to self-representation must be
clear and unequivocal. State v. Neyland,

139 Ohio St.3d 353

2014-Ohio-1914

12 N.E.3d 1112

, ¶ 72; Furr at ¶ 10. We review the propriety of a defendant’s waiver of
the right to counsel de novo. Jackson, 1st Dist. Hamilton No. C-180160, 2019-Ohio-
2933, at ¶ 5; Furr at ¶ 10.
{¶27} Struckman’s argument must be understood in the context of the entire
proceeding, which took well over three years, mostly due to Struckman’s issues with
counsel. Originally, Struckman had retained counsel. Counsel asked to withdraw
due to a breakdown in communication and Struckman’s lack of cooperation. The
trial court allowed counsel to withdraw and told Struckman that it would appoint
counsel. Struckman asked, “Am I allowed to defend myself in this matter?” The
court told him “it’s not a very smart thing to do.” The court asked Struckman a few
questions about his issues with counsel, and engaged in a dialogue about the right to
counsel and what would happen if Struckman chose to represent himself. The court
ultimately said that it would not let Struckman make the decision until he considered
everything. It appointed counsel, indicating, “I can change later.”
{¶28} Struckman went through three or four more attorneys, all of whom
withdrew because of a breakdown in communication. One of them filed a suggestion
of incompetency, although Struckman was ultimately found competent to stand trial.
{¶29} Struckman asked the trial judge to recuse himself, and the judge did
so. A new judge was assigned to the case. The court appointed another attorney for
Struckman, but essentially told him it would be the last, stating, “You two are
married.” Counsel told the court that Struckman had asked him if he could “be co-
counsel.” Counsel had advised him “under Ohio law there is no such thing as co-
counsel.” The court agreed.
9
OHIO FIRST DISTRICT COURT OF APPEALS
{¶30} Several months later, Struckman filed a pro se motion asking counsel
to withdraw. Subsequently, he filed a pro se motion stating that he waived his right
to counsel under Crim.R. 44 and chose to proceed pro se. At a hearing on his
motions, counsel stated, “From day one, he has told me, and I believe that he has
told some of his other attorneys, that he wanted to represent himself.” The court
then engaged in an extensive dialogue with Struckman about his experience with the
criminal justice system, his competency, the nature of his problem with his attorney,
his education level, the charges against him, trial procedure, sentencing, and other
issues. The court stated it would take the issue under advisement. In the meantime,
it advised Struckman to work with counsel and that “he blows you out of the water
with regard to legal knowledge.”
{¶31} Eventually, the court permitted counsel to withdraw.            It told
Struckman that he was making “a serious mistake,” that he would have a “fool for a
client,” and that he was “absolutely treading on dangerous waters.”
{¶32} The case proceeded to trial before a visiting judge on March 5, 2018.
The court stated it was going to “take a few minutes to make sure that you are
knowingly and willingly giving up your right to an attorney.”           It discussed
Struckman’s relationship with his previous attorneys and the reasons why he wished
to represent himself. The trial court explained in depth the charges Struckman was
facing, the rights he was waiving, what would happen during the trial, and what he
would need to know if he represented himself. At the end, the court asked him what
he wanted to do. Struckman replied, “I would like to represent myself and go
forward with trial.” The court presented Struckman with a written waiver of counsel
form, telling him to read it before he signed it, and if he had any doubts or did not
10
OHIO FIRST DISTRICT COURT OF APPEALS
understand anything, “then do not sign it and ask me questions.” Struckman said he
had no questions and signed it.
{¶33} Two days later, the court journalized an entry appointing standby
counsel to represent Struckman.       At the next hearing, counsel indicated that
Struckman had sent him an email stating, “At this time I request to represent myself
as pro se which was my original intention and goal.” Struckman had also requested
that counsel continue as standby counsel. Counsel stated that he and Struckman had
had a breakdown in communication and that they fundamentally disagreed on how
to proceed. The court again engaged in an extensive dialogue with Struckman about
what it meant to represent himself. The court again had him sign a written waiver of
counsel and determined that he had knowingly, voluntarily and intelligently waived
his right to counsel.
{¶34} Struckman represented himself throughout the state’s case. After the
state had rested and he commenced presenting his case, Struckman’s standby
counsel informed the court that Struckman wanted him to take over Struckman’s
defense. Struckman confirmed this. This occurred on a Friday afternoon, so the
court ended the proceedings early to allow counsel to prepare over the weekend.
{¶35} That Monday, counsel advised the court that he was not able to take
over Struckman’s defense due to his other commitments.             The court asked
Struckman if he wanted an attorney from the public defender’s office to represent
him. Struckman replied, “No, your Honor.” The court indicated that “the trial is 80
to 90 percent complete. If you have a private attorney that you’ve hired to take over
your representation, that, of course, will be permitted.” Struckman said that he did
not want one. He also said that he was comfortable with counsel remaining as
standby counsel.
11
OHIO FIRST DISTRICT COURT OF APPEALS
{¶36} The court then stated:
And I just want to summarize with you, Mr. Struckman, as I told you
when this trial started, you had the opportunity to tell me you wanted
an attorney during the trial. While that’s true, you know, this trial is
80 to 90 percent completed.        * * *      And you really can’t expect
[counsel] or somebody from the public defender’s office or any
attorney to step forward and take over when the trial is 80 to 90
percent completed. It’s just not realistic.
And it would put that attorney at a high risk of—well, making mistakes
that he or she would be responsible for.
So while I told you that you could change your mind at any time, that
assumed that it would be a reasonable time and that people would be
available.
Struckman did not object in any way. The court continued the case briefly to give
Struckman time to prepare.
{¶37} It is this final exchange with which Struckman now takes issue. He
argues that a new colloquy should have occurred to determine if he was voluntarily
waiving his right to counsel and the court should have had him sign a new written
waiver. But the record shows that, Struckman was informed many times of the
dangers of representing himself and the rights he would be waiving. After counsel
sought to withdraw, Struckman indicated that he did not want to have an attorney
appointed for him or to retain one. He once again unequivocally stated that he
wanted to represent himself. See Jackson, 1st Dist. Hamilton No. C-180160, 2019-
Ohio-2933, at ¶ 6-10. He did not in any way indicate that he was revoking or
rescinding his waiver of counsel or abandoning his right to self-representation. See
12
OHIO FIRST DISTRICT COURT OF APPEALS
State v. Obermiller,

147 Ohio St.3d 175

2016-Ohio-1594

63 N.E.3d 93

, ¶ 31; State v.
Cook,

2016-Ohio-2823

64 N.E.3d 350

, ¶ 90-92 (5th Dist.); State v. Brown, 4th Dist.
Hocking No. 93CA20,

1994 WL 312905

, *3 (June 29, 1994). In the context of the
entire proceedings, it was obvious that he was again voluntarily waiving his right to
counsel and representing himself. It was not necessary for the court to go through
the whole colloquy yet again. See Jackson at ¶ 10.
{¶38} Further, at that time, Struckman’s counsel indicated that he had had
eight or nine attorneys, and he could not work with any of them. The right to counsel
does not give an indigent defendant the right to counsel of his choice. Therefore,
self-representation may be deemed voluntary where the court finds a valid waiver of
the right to counsel due to the defendant’s refusal to proceed with competent court-
appointed counsel. State v. Nelson,

2016-Ohio-8064

75 N.E.3d 785

, ¶ 22 (1st Dist.).
By rejecting appointed counsel so many times, Struckman “necessarily chose self-
representation.” See id. at ¶ 27. Under the circumstances, we overrule Struckman’s
second assignment of error.
Competency
{¶39} In his third assignment of error, Struckman contends that the trial
court erred in finding him competent to stand trial. He argues that the trial court
had originally found him incompetent to stand trial, but then relied on additional
less-credible evaluations to find him competent. This assignment of error is not well
taken.
{¶40} The test for determining whether a defendant is competent to stand
trial is whether the defendant “has sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding—and whether he has a
rational as well as a factual understanding of the proceedings against him.” State v.
13
OHIO FIRST DISTRICT COURT OF APPEALS
Were,

118 Ohio St.3d 448

2008-Ohio-2762

890 N.E.2d 263

, ¶ 45. A defendant is
presumed competent to stand trial, and the burden is on the defendant to prove by a
preponderance of the evidence that he is not competent. State v. Jordan,

101 Ohio St.3d 216

2004-Ohio-783

804 N.E.2d 1

, ¶ 28.
{¶41} Incompetency must not be equated with mere mental or emotional
instability or even with outright insanity. A defendant may be emotionally disturbed
or even psychotic and still be capable of understanding the charges against him and
of assisting his counsel. State v. Vrabel,

99 Ohio St.3d 184

2003-Ohio-3193

790 N.E.2d 303

, ¶ 29. Further, lack of cooperation with counsel is not sufficient indicia
of incompetence to raise doubt about a defendant’s competence to stand trial. Id. at
¶ 30.
{¶42} A trial court’s finding that a defendant is competent to stand trial will
not be disturbed when there is some reliable and credible evidence supporting that
finding. Were at ¶ 46. Deference on those issues should be given “to those who see
and hear what goes on in the courtroom.” State v. Cowans,

87 Ohio St.3d 68

, 84,

717 N.E.2d 298

 (1999). Further, Struckman did not object to being found competent to
stand trial and forfeited any error but plain error. Neyland,