State v. Smith , 2021 Ohio 2866 ( 2021 )

[Cite as State v. Smith, 2021-Ohio-2866.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 19CA33
:
vs. :
:
SEAN EARL SMITH, : DECISION AND JUDGMENT
AKA: SALAH BEY : ENTRY
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
James A. Anzelmo, Gahanna, Ohio, for Appellant.
Judy Wolford, Pickaway County Prosecutor, Circleville, Ohio, for Appellee.
_____________________________________________________________
Smith, P.J.
{¶1} Sean Earl Smith, a.k.a. Salah Bey, hereinafter “Appellant,”
appeals the “Entry of Jury Verdict of Guilty, Entry of Sentence, and
Advisement of Discretionary Post Release Control” filed September 25,
2019, in the Pickaway County Court of Common Pleas. Appellant raises six
assignments of error. Upon review of the record and analysis of the
pertinent Ohio law, we find no merit to Appellant’s assignments of error.
Accordingly, we affirm the judgment of the trial court.
Pickaway App. 19CA33 2
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} On February 1, 2019, Appellant was indicted on three counts:
(1) Having Weapons While Under Disability with Specification, R.C.
2923.13(A)(2), a felony of the third degree; (2) Possession of Drugs with
Specification, R.C. 2925.11(A)/(C)(2)(a), a misdemeanor of the first degree;
and (3) Possession of Marijuana with Specification, R.C.
2925.11(A)/(C)(3)(b), a misdemeanor of the fourth degree. Appellant’s
charged offenses arose from a traffic stop which occurred in Pickaway
County on January 6, 2018. Appellant was stopped by Trooper Kevin Large
of the Ohio State Highway Patrol.
{¶3} On March 13, 2019, Appellant was arraigned and entered pleas
of not guilty. He was initially represented by retained counsel, but later
completed the necessary forms and was found indigent. The court appointed
Attorney Lori Rankin as Appellant’s counsel.
{¶4} On May 29, 2019, the matter came on for a motion hearing. The
hearing began with Appellant being uncooperative, refusing to acknowledge
his legal name, and interrupting the judge. Attorney Rankin explained the
hearing had been scheduled at her request. Attorney Rankin explained that
Appellant disagreed with her analysis of his case and how the matter should
Pickaway App. 19CA33 3
proceed. Appellant’s uncooperative conduct continued throughout the
hearing.
{¶5} Based upon Appellant’s conduct, the trial court ordered a
competency evaluation. Appellant continued to interrupt, contending that
the trial court had no jurisdiction over him. As the hearing ended, Appellant
was removed from the courtroom. On that same date, Appellant filed
several irregular documents, the first captioned as “Revocation of Power of
Attorney Fiduciary Termination Notice.”
{¶6} Appellant’s competency hearing took place on July 24, 2019.
The trial court announced, having received a competency report, that
Appellant functioned well and was capable of assisting his counsel in his
own defense. Appellant was found competent to stand trial. Appellant
addressed the court and the attorneys, again arguing that he had filed an
affidavit challenging the court’s jurisdiction and arguing that he had been
“misclassified, misidentified” by the courts. The trial court made a finding
that it did have jurisdiction over Appellant and his case. Appellant was
again removed from the courtroom, arguing as he was taken away that his
rights were being violated and there was no jurisdiction over him or the case.
{¶7} On August 22, 2019, another hearing took place to determine
whether Appellant was capable of representing himself at trial. Appellant
Pickaway App. 19CA33 4
immediately began objecting about his constitutional rights, objecting to
being called “Mr. Smith,” stating that he did not consent to the proceedings,
and demanding his release. The trial court scheduled the matter for trial and
ordered Attorney Rankin to remain as counsel. Appellant refused to sign the
trial notice.
{¶8} Appellant’s trial commenced on September 19, 2019. The
proceeding began in the jury room but outside of the presence of the
prospective jurors. The trial court wished to have the plea discussions
disclosed but Appellant continually interrupted. Appellant stated his refusal
to participate in the jury trial. He purported to terminate Attorney Rankin.
Appellant was speaking so fast he was cautioned to slow down so that the
court reporter could catch his statements. After several fruitless attempts to
allow Appellant to conform his conduct appropriately, the court ordered that
Appellant be taken to the county jail to watch the proceedings. Appellant
returned to the courtroom for his own testimony in the defense case and
remained in the courtroom for the rest of the trial.
{¶9} Appellant was convicted of all counts and sentenced to a 36-
month prison term on Count One. The trial court imposed jail sentences on
Counts Two and Three which were to be served concurrently to Count One.
Pickaway App. 19CA33 5
{¶10} This timely appeal followed. Additional facts will be set forth,
where pertinent.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED IN FINDING THAT
SMITH WAS COMPETENT TO STAND TRIAL, IN
VIOLATION OF THIS DUE PROCESS RIGHTS [SIC]
UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
II. THE TRIAL COURT ABUSED ITS DISCRETION BY
DENYING SMITH’S MOTION TO DISMISS HIS
TRIAL COUNSEL, IN VIOLATION OF THE SIXTH
AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE ONE, SECTION
TEN OF THE OHIO CONSTITUTION.
III. WHEN THE TRIAL COURT REMOVED SMITH
FROM THE COURTROOM DURING HIS TRIAL,
THE COURT FAILED TO SAFEGUARD SMITH’S
CONSTITUTIONAL RIGHTS UNDER THE SIXTH
AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE ONE, SECTION
TEN OF THE OHIO CONSTITUTION.
IV. SMITH RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL, IN VIOLATION OF THE SIXTH
AMENDMENT TO THE UNITED STATES
CONSTITUTION, AND ARTICLE ONE, SECTION
TEN OF THE OHIO CONSTITUTION.
V. THE TRIAL COURT ERRED BY DENYING SMITH’S
MOTION FOR ACQUITTAL, PURSUANT TO CRIM.
R. 29, WHICH WAS MADE AT THE CLOSE OF THE
PROSECUTION’S CASE, IN VIOLATION OF THE
DUE PROCESS CLAUSE OF THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED
Pickaway App. 19CA33 6
STATES CONSTITUTION AND ARTICLE ONE,
SECTIONS TEN AND SIXTEEN OF THE OHIO
CONSTITUTION.
VI. SMITH’S CONVICTIONS ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN
VIOLATION OF THE DUE PROCESS CLAUSE OF
THE FIFTH AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION AND
ARTICLE ONE, SECTIONS TEN AND SIXTEEN OF
THE OHIO CONSTITUTION.
VII. THE TRIAL COURT ERRED WHEN IT SENTENCED
SMITH, IN VIOLATION OF HIS DUE PROCESS
RIGHTS UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE ONE, SECTION
SIXTEEN OF THE OHIO CONSTITUTION.
ASSIGNMENT OF ERROR ONE - COMPETENCY
{¶11} Appellant asserts that this court must reverse his
conviction because he was not competent to stand trial. Appellant argues
that throughout the proceedings he made incoherent, rambling and
nonsensical statements, as well as demonstrating paranoia regarding his own
counsel and the trial court. While Appellant concedes that a psychiatrist
found him competent to stand trial, his bizarre conduct persisted throughout
the trial. Appellant concludes that the record establishes by a preponderance
of the evidence that he was not competent to stand trial.
{¶12} In response, the State of Ohio points out that the trial court
followed the requirements of RC. 2945.37 in ordering a competency
Pickaway App. 19CA33 7
evaluation. The forensic psychologist’s report contained findings that
Appellant was capable of understanding the nature of the legal proceedings
against him and was capable of assisting his counsel in his own defense.
Therefore, the State argues that the trial court did not err when it found
Appellant competent to stand trial.
STANDARD OF REVIEW
{¶13} A trial court's decision on competency will not be disturbed
absent an abuse of discretion. See State v. Lechner, 4th Dist. Highland No.
19CA3, 2019-Ohio-4071, at ¶ 24; State v. Clark, 71 Ohio St.3d 466, 469,
1994-Ohio-43, 644 N.E.2d 331. An “abuse of discretion” requires more
than an error of judgment; it implies the court's attitude is unreasonable,
arbitrary or unconscionable. Id. at 470. “Thus, an appellate court will not
disturb the trial court's competency determination if the record contains
‘some reliable, credible evidence supporting the trial court's conclusion that
appellant understood the nature and objective of the proceedings against
him.’ ” Lechner, supra, quoting State v. Williams, 23 Ohio St.3d 16, 19, 490
N.E.2d 906 (1986); State v. Stewart, 4th Dist. Gallia No. 91CA24, 1992 WL
174699, *3 (July 22, 1992).
Pickaway App. 19CA33 8
LEGAL ANALYSIS
{¶14} Due process requires a criminal defendant be competent to
stand trial. See Lechner, supra, at ¶ 25; State v. Berry, 72 Ohio St.3d 354,
359, 1995-Ohio-310, 650 N.E.2d 433. “It has long been accepted that a
person who lacks the capacity to understand the nature and object of the
proceedings against him, to consult with counsel, and to assist in preparing
his defense may not be subjected to a trial.” Drope v. Missouri, 95 S. Ct.
896, 420 U.S. 162, 171 (1975). Thus, “[c]onviction of an accused while he
or she is legally incompetent is a violation of due process.” State v.
Merryman, 4th Dist. Athens No. 12CA28, 2013-Ohio-4810, ¶ 14.
{¶15} “The United States Supreme Court established the test for
competency and requires the court to determine if an accused ‘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 factual
understanding of the proceedings against him.’ ” Lechner, supra, at ¶ 26,
quoting Dusky v. United States, 80 S.Ct. 788, 789, 362 U.S. 402 (1960).
Ohio has codified the competency test in R.C. 2945.37(G) as follows:
A defendant is presumed to be competent to stand trial.
If, after a hearing, the court finds by a preponderance of
the evidence that, because of the defendant's present
mental condition, the defendant is incapable of
understanding the nature and objective of the proceedings
against the defendant or of assisting in the defendant's
Pickaway App. 19CA33 9
defense, the court shall find the defendant incompetent to
stand trial and shall enter an order authorized by section
2945.38 of the Revised Code.
{¶16} Under the above subjective test, if a defendant is capable of
understanding the nature and objective of the proceedings and assisting in
the defense, then the defendant is competent to stand trial. A defendant with
mental illness or intellectual deficiencies may still be competent to stand
trial. See Lechner, at ¶ 27. “ ‘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.’ ”
Lechner, supra, quoting State v. Bock, 28 Ohio St.3d 108, 110, 502 N.E.2d
1016 (1986).
{¶17} In Appellant’s case, the record reflects that a possible
competency issue first manifested itself at a motion hearing requested by his
counsel on May 29, 2019. The hearing on that date began with Appellant
refusing to be seated and interrupting the trial court and his own attorney.
Appellant stated that he “filed a motion to preserve his rights.” Appellant
repeatedly refused to consent to the name “Sean Smith”; insisted that he was
“not a corporate fiction”; insisted he was a “duly indigenous person of the
Pickaway App. 19CA33 10
land”; objected to the jurisdiction of the court; and insisted that his court-
appointed attorney did not speak for him.
{¶18} Ms. Rankin advised the court that she had researched the law
and, applying the facts to Appellant’s case, considered filing a motion to
suppress to be a futile act. She further advised that she had explained her
legal analysis of the case to Appellant by letter and that he had contacted her
to express his disagreement and his wish to terminate her legal services. As
Attorney Rankin attempted to explain the status of the case, Appellant
repeatedly interrupted her, stating he felt Attorney Rankin was “not working
in my best interest.”
{¶19} The trial court thereafter ordered a competency evaluation.
Appellant again objected. As Appellant was removed from the courtroom,
he repeatedly objected to the court’s jurisdiction and right to order the
evaluation. The court’s “Entry Ordering Examination on Competency” was
filed June 3, 2019.
{¶20} On July 24, 2019, the record indicates the trial court conducted
a brief hearing regarding the competency issue. The trial court referenced a
report it had received, prepared by Kevin J. Edwards, Ph.D. of Netcare
Forensic Center. The trial court noted that Dr. Edwards opined that
Appellant “functions quite well and is capable of assisting counsel in his
Pickaway App. 19CA33 11
own defense.” Attorney Rankin, on behalf of Appellant, stipulated to the
findings of the report. She began to explain that Appellant had filed other
motions and she anticipated he would again ask for her dismissal.
{¶21} At this point Appellant began a long diatribe, again challenging
the trial court’s jurisdiction and demanding dismissal of the case. He argued
that he had been “misclassified, misidentified by the courts.” Appellant
affirmed his “true aboriginal status in the state and rightfully reclaim my
social and cultural life for the state. For I do not allow the courts to subject
my living breathing person to be of a (inaudible) man or a third party and
take up the identity of a corporate identity.” The trial court interrupted, “All
right. I’ve heard enough. I’m making, on the record, a determination I do
have jurisdiction of this case, and over you and this charge.” The trial court
further found Appellant was competent to stand trial. While the trial court
was attempting to set the matter for trial, Appellant continued to object to
the jurisdiction and to his “corporate name” of “Sean Smith.”
{¶22} Based upon our review of the record and these proceedings, we
find the trial court did not err in finding Appellant competent to stand trial.
Despite Appellant’s multiple and repeated objections and outbursts, what is
available for this Court's review indicates the trial court handled Appellant's
Pickaway App. 19CA33 12
competency determination properly and in accordance with the controlling
statutes.
{¶23 To begin, when the issue of Appellant's competency was raised,
the trial court ordered a competency evaluation in accordance with R.C.
2945.371. The report prepared by Dr. Edwards, a forensic psychologist,
contained a detailed step-by-step explanation of his evaluation of Appellant.
His report demonstrates that he explained the nature and purpose of the
evaluation to Appellant, and the fact that under the circumstances, a
confidential doctor-patient relationship did not exist. Dr. Edwards’ report
listed the sources of information he received through documents and directly
from Appellant’s self-reporting. The report explained the data and findings
upon which Dr. Edwards’ opinion was based. The report discussed
Appellant’s current mental condition; the issue of any mental illness; the
issue of any cognitive deficits; Appellant’s current capacity to understand
the nature of the proceedings and charges against him; and Appellant’s
current capacity to assist in his own defense. Dr. Edwards opined as
follows: (1) Appellant’s current mental condition was not marked with
significant mental impairment; (2) Appellant did not have current symptoms
meeting full criteria for mental illness; (3) Appellant did not meet the criteria
for intellectual disability; (4) Appellant was able to understand the nature
Pickaway App. 19CA33 13
and objective of the proceedings against him; and (5) Appellant was capable
of assisting in his own defense. Dr. Edwards specifically opined that
appellant was “able to conform his behavior to the dictates of the courtroom
setting.”
{¶24 Finally, the trial court held a competency hearing in accordance
with R.C. 2945.37. Appellant’s counsel stipulated to the report. And
notably, as set forth above, while Appellant repeatedly interrupted and
asserted the above-described objections, he never objected to the court’s
finding or his counsel’s stipulation as to the competency report. Once the
trial court found Appellant was competent to stand trial, the matter
proceeded to trial in accordance with R.C. 2945.38.
{¶25 As such, we conclude the trial court's finding of competency
was made after ordering a competency evaluation and holding a hearing on
the matter. The finding was based on the detailed evaluation and report
prepared by a forensic psychologist. The report was stipulated by
Appellant’s counsel, without objection from Appellant, and made part of the
record. Based upon our review, it appears the record contains reliable and
credible evidence to support the trial court's decision that Appellant was
competent to stand trial. Thus, we cannot find the trial court abused its
Pickaway App. 19CA33 14
discretion in determining Appellant was competent to stand trial.
Accordingly, we overrule Appellant's first assignment of error.
ASSIGNMENT OF ERROR TWO - MOTION TO DISMISS
DEFENSE COUNSEL
{¶26} Appellant next asserts the trial court did not use the
correct standard in evaluating his motion to dismiss his court-appointed
attorney and improperly denied this repeated oral and written request.
Appellant argues that the record of these proceedings establishes a complete
breakdown in communication and cooperation so severe that Appellant did
not trust his counsel. In response, the State of Ohio contends that while the
relationship between Appellant and his counsel was contentious, it did not
rise to the level required by the Supreme Court of Ohio in State v. Hennes,
79 Ohio St. 3d 53, 1997-Ohio-405, 679 N.E.2d 686. “ ‘To discharge a
court-appointed attorney, the defendant must show a breakdown in the
attorney-client relationship of such magnitude as to jeopardize the
defendant's right to effective assistance of counsel.’ ” Henness, supra, 79
Ohio St. 3d 53, 65-66, quoting State v. Coleman, 37 Ohio St.3d 286, 525
N.E.2d 792 (1988), paragraph four of the syllabus. While the issue was
brought before the court on several occasions, at no time did Appellant
present good cause for the court to allow his attorney to withdraw.
Pickaway App. 19CA33 15
STANDARD OF REVIEW
{¶27} “ ‘A trial court's decision regarding a request for
substitute counsel is governed by an abuse of discretion standard.’ ” State v.
Kessinger, 4th Dist. Highland No. 13CA25, 2014-Ohio-2496, at ¶ 54,
quoting State v. Carter, 4th Dist. Ross No. 0CA3169, 2010-Ohio-6316, ¶ 44.
(Internal citations omitted.) The abuse of discretion standard of review is set
forth fully above at ¶ 26.
LEGAL ANALYSIS
{¶28} “ ‘An indigent defendant * * * has the right to
professionally competent, effective representation.’ ” State v. Hoover, 7th
Dist. Belmont No. 18BE0019, 2019-Ohio-4229, at ¶ 67, quoting State v.
Evans, 153 Ohio App.3d 226, 2003-Ohio-3475, 792 N.E.2d 757, ¶ 30 (7th
Dist.), citing State v. Murphy, 91 Ohio St.3d 516, 523, 747 N.E.2d 765(2001). However, an indigent defendant is entitled to the appointment of
substitute counsel only upon a showing of good cause, such as a conflict of
interest, a complete breakdown in communication, or an irreconcilable
conflict which leads to an apparently unjust result. See Hoover, supra. See
also State v. Bomar, 4th Dist. Scioto No. 00CA2703, 2000-Ohio-1974, at *7;
State v. Blankenship, 102 Ohio App.3d 534, 558, 657 N.E.2d 559, 574 (12th
Dist. 1995) (Internal citations omitted.).
Pickaway App. 19CA33 16
{¶29} “ ‘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.’ ” Kessinger,
supra, at ¶ 55, quoting State v. Smith, 4th Dist. Lawrence No. 98CA12, 1999
WL 4907, * (Dec. 29, 1998), citing State v. Deal, 17 Ohio St. 2d 17, 20, 44
N.E.2d 752 (1969). “Although the inquiry may be brief and minimal, the
inquiry must be made.” Id. However, “ ‘Even that limited judicial duty
arises only if the allegations are sufficiently detailed and specific. Vague or
general objections do not trigger the duty to investigate further.’ ” Bomar,
supra, quoting State v. Carter, 128 Ohio App.3d 419, 423, 715 N.E.2d 223,
225 (4th Dist. 1998).
{¶30} The record here is full of indicators of Appellant’s displeasure
with Attorney Rankin. The first indication appears in the transcript of the
May 29, 2019 hearing. During one outburst, Appellant stated that, “I had
filed that to relieve her, that she is not working, she is not working in my
best interest, she works for the court, * * *. I object to all of this.”
Appellant also repeatedly stated, “she does not speak for me.” At the July
24, 2019 competency hearing, Attorney Rankin indicated she believed
Appellant would be asking to dismiss her. Interestingly, during his lengthy
Pickaway App. 19CA33 17
diatribe regarding his name and the court’s jurisdiction on that date,
Appellant did not make that request.
{¶31} Appellant, however, had filed on May 29, 2019, a document
captioned, in part, “REVOCATION OF POWER OF ATTORNEY
FIDUCIARY TERMINATION NOTICE.” The trial court held a hearing on
August 22, 2019, to determine the status of the relationship between
Appellant and his court-appointed counsel. When the court attempted to
question Appellant about his apparent request for dismissal of counsel,
Appellant was repeatedly interruptive and non-responsive.
{¶32} The trial court interrupted, attempting to find out Appellant’s
problem with Attorney Rankin. Appellant replied that his affidavit “speaks
for itself.” Appellant continued to protest the proceedings, his name, and the
charges. The trial court eventually ordered that Attorney Rankin remain on
the case. Appellant continued to interrupt, refused to sign the hearing notice,
and was returned to jail. When Appellant testified at trial, he told the jury he
tried to terminate his attorney “maybe four times.”
{¶33} The trial court rendered a decision on Appellant’s request on
August 22, 2019. In the court’s decision and entry, the trial court noted that
it had attempted to determine whether Appellant had the capability of
representing himself, but due to Appellant’s refusal to cooperate, the court
Pickaway App. 19CA33 18
was unable to make that determination. The court found that, consequently,
Attorney Rankin would continue to represent Appellant.
{¶34} Based on our review of the record, we find the trial court did
not abuse its discretion in denying Appellant’s request to discharge his
court-appointed attorney. While there existed an obvious “breakdown of
communication” between Appellant and his appointed counsel, the
breakdown appears to be solely of Appellant’s own making by his refusal to
cooperate with the proceedings. At no time, though given multiple
opportunities, did Appellant verbalize legitimate, concerning allegations
regarding Attorney Rankin’s professional competence. He made only vague
statements that she “worked for the court” or did not “work in his best
interest,” but he failed to articulate specific facts or reasons. See, e.g., State
v. Baker, 4th Dist. Athens No. 13CA18, 2014-Ohio-1967, at ¶ 21. In
addition, Attorney Rankin never requested permission to withdraw.
{¶35} In general, an indigent defendant does not have a constitutional
right to choose the attorney who will represent the defendant at state
expense. See Baker, supra, at ¶ 19; State v. Fry, 125 Ohio St.3d 163, 2010-
Ohio-1017, 926 N.E.2d 1239, ¶ 64. “The right to counsel must be balanced
against the court's authority to control its docket, as well as its awareness
that a ‘demand for counsel may be utilized as a way to delay the proceedings
Pickaway App. 19CA33 19
or trifle with the court.’ ” Hoover, supra, at ¶ 68, quoting United States v.
Krzyske, 836 F.2d 1013, 1017 (C.A.6 1988). The right to competent counsel
does not mean that defendants must share a “meaningful relationship” with
that attorney. Bomar, supra, at ¶ 7. See Morris v. Slappy, 461 U.S. 1, 13,
103 S.Ct. 1610, 1617 (1983); also see State v. Glassure, 132 Ohio App.3d
227, 239, 724 N.E.2d 1165, 1174 (7th Dist.1999).
{¶36} In this case, we find Appellant’s actions may indeed have been
motivated by possibly wishing to delay his trial. Appellant’s repeated
disruptions which necessitated the competency evaluation did in fact delay
the trial. When given the opportunity to voice legitimate concerns about
conflict or breakdown in communication, Appellant did not carry his burden
to demonstrate any legitimate grounds for dismissal of his attorney.
{¶37} While the relationship between Appellant and Attorney Rankin
was obviously difficult, it was made so by Appellant’s voluntary actions.
There is simply not even a hint that Appellant was denied competent
professional legal counsel. The trial court did not abuse its discretion in
denying Appellant’s request to remove his attorney. As such, we find no
merit to Appellant’s second assignment of error. Accordingly, it is hereby
overruled.
Pickaway App. 19CA33 20
ASSIGNMENT OF ERROR THREE - REMOVAL
FROM COURTROOM
{¶38} The trial court ordered Appellant removed from the
courtroom due to repeated verbal interruptions.1 While Appellant was able
to hear the proceedings, the court did not provide a means for Appellant to
see the proceedings via contemporaneous video. Consequently, Appellant
contends that he had no opportunity to observe the State’s sole witness,
Trooper Large, and to observe the proceedings, thereby hampering his
ability to defend himself at trial. Appellant concludes that the trial court
failed to safeguard his constitutional rights under the Sixth Amendment to
the United States Constitution and Article I, Section 10 of the Ohio
Constitution. Due to this violation, Appellant concludes that his conviction
must be reversed.
STANDARD OF REVIEW
{¶39} Article I, Section 10 of the Ohio Constitution states, “ ‘[i]n any
trial, in any court, the party accused shall be allowed to appear and defend in
person and with counsel.’ ” State v. Blanton, 2018-Ohio-1278, 110 N.E.3d
1, ¶ 100 (4th Dist.), quoting State v. Lawwill, 8th Dist. Cuyahoga No. 88251,
2007-Ohio-2627, at ¶ 60. “ ‘A criminal defendant has a federal and state
1
The content of these interruptions was discussed at length in our resolution of the first assignment of error.
Appellant repeatedly refused to answer direct questions and argued the trial court did not have jurisdiction
over him or the criminal case. Appellant refused to acknowledge his legal name of “Sean Smith.”
Appellant repeatedly attempted to terminate his court-appointed counsel.
Pickaway App. 19CA33 21
fundamental due process right to be present at all critical stages of his trial,
absent a waiver of rights or other extraordinary circumstances.’ ” Blanton,
supra, quoting State v. Drummond, 7th Dist. Mahoning No. 05-MA-197,
2006-Ohio-7078 (Internal citations omitted.) See also Crim.R. 43(A).
“ ‘Crim.R. 43 provides a criminal defendant the right to be present at every
stage of the criminal proceedings and any modification of a sentence.’ ”
State v. Smith, 4th Dist. Scioto No. 14CA3657, 2015-Ohio-841, ¶ 12,
quoting State v. Patrick, 4th Dist. Lawrence No. 12CA16, 2013-Ohio-3821,
¶ 10; citing Crim.R. 43(A)(1); compare State v. Glasser, 4th Dist. Athens
No. 11CA11, 2012-Ohio-3265, ¶ 49; citing State v. Davis, 116 Ohio St.3d
404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 90.
{¶40} A defendant's presence is required at trial unless he waives his
right or extraordinary circumstances exist requiring exclusion, such as his
misconduct. See State v. Dumas, 7th Dist. Mahoning No. 12MA31, 2015-
Ohio-2683, at ¶ 19; State v. Brown, Fifth Dist. No.2003-CA-01, 2004-Ohio-
3368, citing State v. Williams, 6 Ohio St.3d 281, 286, 452 N.E.2d 1323(1983). “Where a defendant's conduct in the courtroom is so disruptive that
the hearing or trial cannot reasonably be conducted with the defendant's
continued physical presence, the hearing or trial may proceed in the
defendant's absence or by remote contemporaneous video.” Crim.R. 43(B).
Pickaway App. 19CA33 22
To find that a defendant's right to confrontation was violated, we must find
that the trial court abused its discretion in removing the defendant. See
Dumas, supra, citing, Illinois v. Allen, 90 S. Ct. 1057, 397 U.S. 337 at 343;
see also, State v. Chambers, 10th Dist. No. 99AP-1308, 2000 WL 963890(July 13, 2000). The exclusion of a defendant should be considered in light
of the whole record. United States v. Gagnon, 105 S. Ct. 1482, 470 U.S.
522, 526 (1985). The abuse of discretion standard of review has been set
forth fully above.
LEGAL ANALYSIS
{¶41} On the morning of trial, Appellant began with the above-
referenced verbal disruptions. The trial court informed the parties that the
jury trial would proceed. Appellant then announced he would not
participate. The trial court advised that Appellant would participate or he
would go back to jail and watch the trial from jail. Appellant persisted. The
trial court then ordered Appellant be taken to the jail.
After Appellant was removed from the courtroom, the trial
court stated:
In light of what’s happening this morning, the court is
going to take the procedure of attempting to bring Mr.
Smith back to the courthouse and have him located on
the same floor at the courthouse, much like we do with
minors testifying in sexual abuse cases. We will have a
laptop computer set up so that he can see and observe the
Pickaway App. 19CA33 23
proceedings and be in communication with Ms. Rankin,
with also an understanding and an instruction that if he
elects to cooperate and conduct himself in an orderly
fashion, then the court would allow him obviously to
come back into the courtroom to be present during
proceedings.
{¶43} The record reflects the trial court again addressed Appellant:
The record should reflect this proceeding is taking place
in the magistrate’s courtroom outside the presence of the
prospective jurors who are still in the courtroom. * * *
Mr. Smith is in the courtroom again with Ms. Rankin, the
State is represented by Ms. Wolford. Mr. Smith, on the
record I want you to understand that you will, because of
your behavior, you will remain here on this floor of the
courtroom with the jailers in a room adjacent to the
courtroom, and your attorney, Ms. Rankin, will be in the
courtroom on your behalf, Ms. Rankin. We will proceed
to select the jury. We will try the case to the jury. In the
event that you decide to adjust your behavior and not
interrupt and not be disruptive to the proceedings, then,
in that case, I will allow you to be brought to the
courtroom so that you can be present in the courtroom.
{¶44} To this, Appellant engaged in a lengthy diatribe, “So I
ask you sir, who are you referring to as Sean Smith” and repeating that the
court did not have jurisdiction. The trial court inquired twice more whether
Appellant would be willing to behave in an orderly manner and remain in
the courtroom. Appellant continued to interrupt. The trial court stated: “All
right. He will be removed to the adjoining room and we’ll proceed.”
Appellant thereafter interposed: “I object. I have a right to be around my
peers.”
Pickaway App. 19CA33 24
{¶45} After Appellant’s removal, the trial court went back on the
record, stating as follows:
The record should reflect that I have been advised by
counsel for the state and counsel for the defendant that
Mr. Smith has been provided with a cell phone in the
room adjoining the courtroom so that he can have the
ability to listen to the proceedings, as well as
communicate with counsel if necessary. So counsel has a
cell phone at her table as well.
{¶46} When the parties began to select a jury, the trial court instructed
the jurors as follows:
Mr. Smith currently is not in the courtroom. He is
however in an adjoining room to the courtroom where he
does have access to the proceedings by way of
telecommunication with his attorney. * * * Because of
the conduct of Mr. Smith, the court has elected to
proceed without his presence in the courtroom. In the
event that changes, he may be here. In the event it
doesn’t change, he will not be here, but we are
proceeding with this trial. * * * You will give no
consideration to the fact he is not here, has no bearing on
the evidence to be presented in the case or the outcome of
the case. So I ask you not to put any emphasis on that
fact at all.
{¶47} Appellant testified in his own defense and remained in the
courtroom through closing argument and jury instructions. At the close of
trial, the trial court did not repeat the above instruction to the jury.
{¶48} Our research has yielded various cases where defendants were
removed from the courtroom during hearings, sentencings, or the evidentiary
Pickaway App. 19CA33 25
phases of trials. In most cases, Appellants were provided with a means of
viewing and hearing the trial. In Lawwill, supra, the defendant was removed
during a hearing where his counsel was present but Lawwill could not see or
observe the hearing. The Lawwill court noted the Supreme Court of Ohio
found that where the following three factors were satisfied, any error as a
result of defendant's absence is harmless:
First, where the court found that the defendant's interests
were more than adequately protected by his attorney who
was present. * * * Second, the court found that his
presence would have contributed little. * * * Third, the
court found that his failure to timely object constituted
waiver of the argument * * *. State v. Drummond, supra,
citing State v. Williams, 6 Ohio St.3d 281, 452 N.E.2d
1323 (1983).2
{¶49} In Dumas, supra, Appellant was excluded from the courtroom
during the evidentiary phase of his trial for repeated acts of misconduct and
continuous disruptions in the courtroom. The jury was properly instructed to
disregard his absence. Once he was removed, Dumas was still able to watch
the proceedings via video with audio and was still able to communicate with
his counsel. The 7th District found there was no violation of Dumas’s Sixth
Amendment right to be present for his trial, despite the fact that Dumas
2
In Lawwill, the 8th District found: “Lawwill's counsel was present during the hearing along with
prosecution. The entire hearing was conducted on the record. A review of the record
demonstrates that Lawwill's interests were more than adequately protected. A review of the
transcript also reveals that Lawwill's presence would have made little contribution to the hearing
at issue. Further, Lawwill failed to timely object, thus constituting waiver of the argument.”
Pickaway App. 19CA33 26
made an apology and request to return. Nevertheless, the 7th District found
the trial court was well within its discretion to evaluate Dumas’s sincerity
and willingness to conduct himself properly.
{¶50} The circumstances of Appellant’s case are somewhat more
similar to those in State v. France, 5th Dist. Richland No. 2011-CA-68,
2012-Ohio-1003, wherein the defendant asserted on appeal that his rights
were violated because he was not able to contemporaneously view the
proceedings in the courtroom and communicate with his trial counsel.
France was not present during cross-examination of one of the victims in his
case and could not assist his attorney in following up to any answers he
provided on cross-examination. The appellate court disagreed. The
appellate court observed that France had ample warning of the consequences
of his disruptive behavior and was repeatedly warned that the trial would go
forward without him unless he promised to behave. The appellate court
found Appellant voluntarily, by his conduct, waived his right to be present
and therefore it followed that there was no constitutional violation for the
court’s failure to provide France the opportunity to observe the proceedings
via closed-circuit television or other electronic media. Furthermore,
France’s actions also demonstrated that he voluntarily chose not to
communicate with his attorney.
Pickaway App. 19CA33 27
{¶51} In this case, Appellant was excluded from most of the trial
court proceedings, and most importantly, the evidentiary phase. Although
the court in good faith attempted to set up a way for Appellant to view the
trial, he was only able to hear the trial and communicate with his counsel by
cell phone. The trial court appropriately instructed the jurors regarding
Appellant’s absence.
{¶52} The trial court gave Appellant several chances to control his
outbursts and diatribes. Appellant chose not to do so. Appellant was
represented in the court by competent counsel, so his interests were
adequately protected. Given that Appellant refused to answer direct
questions and continually interrupted others, his presence during the
evidentiary phase would have contributed little. Perhaps this is why
Appellant’s counsel did not object to the removal.
{¶53} While Appellant did object to the removal, on appeal he does
not argue specifically how his absence hampered his ability to defend. He
could hear the trooper’s testimony. Appellant does not explain what he was
prevented from doing, asking, etc., which would have contributed favorably
to his defense strategy. Under these circumstances, we find no violation of
Appellant’s constitutional rights and no abuse of the court’s discretion in
Pickaway App. 19CA33 28
excluding Appellant from the courtroom based on his uncooperative
conduct. Accordingly, we overrule the third assignment of error.
ASSIGNMENT OF ERROR FOUR -
INEFFECTIVE ASSISTANCE
{¶54} Appellant asserts he was rendered the ineffective assistance of
counsel because his counsel: (1) failed to object to the trooper’s testimony
about the operability of the gun found in Appellant’s car; (2) failed to move
for the exclusion of the trooper’s testimony on the grounds that the
prosecution failed to provide a written report on the trooper’s opinion; (3)
failed to object to the trooper’s testimony about the lab report on the drugs
found in Appellant’s car; and (4) failed to move for a waiver of fine. For the
reasons which follow, we disagree with Appellant’s assertions.
STANDARD OF REVIEW
{¶55} “To demonstrate ineffective assistance of counsel, a defendant
‘must show (1) deficient performance by counsel, i.e., performance falling
below an objective standard of reasonable representation, and (2) prejudice,
i.e., a reasonable probability that, but for counsel's errors, the proceeding's
result would have been different.’ ” State v. Holdren, 4th Dist. Pickaway
No. 20CA3, 2021-Ohio-810, at ¶ 32, quoting State v. Short, 129 Ohio St.3d
360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113, citing Strickland v.
Washington, 104 S. Ct. 2052, 466 U.S. 668, 687-688, 694 (1984). Failure to
Pickaway App. 19CA33 29
demonstrate either prong of this test “is fatal to the claim.” See State v.
Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14, citing
Strickland, 104 S. Ct. 2052, 466 U.S. 668.
{¶56} “A defendant ‘has the burden of proof because in Ohio, a
properly licensed attorney is presumed competent.’ ” Holdren, supra, at
¶ 33, quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860
N.E.2d 77, ¶ 62, citing State v. Calhoun, 86 Ohio St.3d 279, 289, 714
N.E.2d 905 (1999), citing Vaughn v. Maxwell, 2 Ohio St.2d 299, 209 N.E.2d
164 (1965). “In order to overcome this presumption, the petitioner must
submit sufficient operative facts or evidentiary documents that demonstrate
that the petitioner was prejudiced by the ineffective assistance.” Id., citing
State v. Davis, 133 Ohio App.3d 511, 728 N.E.2d 1111 (8th Dist.1999). To
demonstrate prejudice, a defendant “must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland
at 694.
LEGAL ANALYSIS
Pickaway App. 19CA33 30
1. Defense counsel’s failure to object to “operability” testimony
from Trooper Large and for exclusion of the trooper’s
testimony based on a discovery violation.
{¶57} Appellant was convicted of R.C. 2923.13(A)(2), Having
Weapons While Under Disability with Specification. Under R.C.
2923.13(A)(2), a person who has been convicted of a felony of violence is
prohibited from possessing a firearm. R.C. 2923.11(B) defines “firearm” as
“any deadly weapon capable of expelling or propelling one or more
projectiles by the action of an explosive or combustible propellant”:
(B)(1) “Firearm” means any deadly weapon capable of
expelling or propelling one or more projectiles by the
action of an explosive or combustible propellant.
“Firearm” includes an unloaded firearm, and any firearm
that is inoperable but that can readily be rendered
operable.
(2) When determining whether a firearm is capable of
expelling or propelling one or more projectiles by the
action of an explosive or combustible propellant, the trier
of fact may rely upon circumstantial evidence, including,
but not limited to, the representations and actions of the
individual exercising control over the firearm.
{¶58} “ ‘[T]he state must prove beyond a reasonable doubt that the
firearm was operable or could readily have been rendered operable at the
time of the offense.’ ” State v. Allah, 4th Dist. Gallia No. 14CA12, 2015-
Ohio-5060, at ¶ 10, quoting State v. Gaines, 46 Ohio St.3d 65, 68-69, 545
N.E.2d 68 (1989). Subsection (B)(2) of the statute expressly allows the trier
of fact to rely upon circumstantial evidence to determine if the firearm was
Pickaway App. 19CA33 31
operable. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678
N.E.2d 541 (1997), paragraph one of the syllabus. “ ‘Empirical analysis of
the gun is not required to prove operability.’ ” Allah, supra, quoting State v.
Murphy, 49 Ohio St.3d 206, 209, 551 N.E.2d 932 (1990).
{¶59} In Allah, the state offered the firearms into evidence. Troopers
testified that one of the firearms was a loaded 9mm handgun found on the
driver's side floorboard and the other firearm was a .38 revolver in a suitcase
with ammunition. The Allah jury had the actual weapons and could
logically infer from the loading of one gun and the provision of ammunition
for the other that both were capable of firing that ammunition. Neither
testimony of test-firing nor operability reports are required to prove
operability. In Allah, this court found that under the pertinent case law
developed, there was sufficient evidence of operability to sustain Allah's
conviction for having a weapon under disability.
{¶60} The Allah court discussed several other cases including State v.
Dickerson, 11th Dist. Ashtabula App. No.2013-A0046, 2015-Ohio-938,
which held that “evidence that a gun was loaded combined with the
submission of that gun into evidence is sufficient to prove operability.” Id.
at ¶ 36, citing State v. Messer, 107 Ohio App.3d 51, 55, 667 N.E.2d 1022(9th Dist.1995), appeal not allowed 75 Ohio St.3d 1422, 662 N.E.2d 25Pickaway App. 19CA33 32
(1996). In Messer, supra, the court held that where the state produced
testimony of a veteran police officer who stated that the gun “appeared
operable” and was found hidden and loaded under a mattress, and the gun
was admitted into evidence, there was sufficient evidence to prove
operability. Messer at ¶ 55. In State v. Miller, 12th Dist. Preble App. No.
CA2002-02-004, 2002-Ohio-6109, ¶ 13-14, the court concluded that
evidence of test-firing was not required because, “the firearms themselves
were admitted into evidence, along with testimony that the pistol was loaded
and ammunition for both firearms was found nearby. Even without
testimony regarding firing of the weapons, these facts alone could be
sufficient to establish operability.”).3
{¶61} Our decision in Allah was cited more recently in State v. Pope,
1st Dist. Hamilton No. C-180587, 2019-Ohio-3599. In Pope, there was no
evidence that the weapon was test-fired, nor was there specific evidence
about the operability. The gun itself was not offered into evidence, only a
photograph of it. Nevertheless, the appellate court concluded the operability
of a firearm may be established by circumstantial evidence, including
3
But see Sanders v. McMackin, 786 F.Supp. 672, 676 (N.D.Ohio 1992), wherein the court vacated
the sentence for a firearm specification because state failed to meet burden to prove operability,
noting that “If the purchaser had placed bullets in the gun before giving it to Sanders’ father, or
had the witness testified that he saw bullets in the gun, a rational jury could possibly make the
inferential leap to find operability.”
Pickaway App. 19CA33 33
evidence that the owner kept the firearm, a fully loaded handgun, in his
pants pocket and had a license to carry it concealed.
{¶62} At Appellant’s trial, Trooper Large testified that when he
conducted a probable cause search of Appellant’s vehicle, he discovered a
Ruger SR .38 Special. Trooper Large identified State’s Exhibit 7, a
photograph of the gun. Trooper Large testified that he took the photograph
of the gun and that the exhibit was a true and accurate copy of his
photograph. The State inquired whether Trooper Large was able to
determine if the weapon was in working order. Trooper Large testified:
Yes. All firearms that we seize, take into evidence, we
make sure they operate correctly, which means we test
fire them. If they’re not operable, if they can be fired, if
they can be, but I was able to test fire it, and it functioned
properly. It was test fired at our patrol post.
{¶63} Appellant’s counsel did not object to this testimony. However,
we do not find counsel’s performance was deficient based upon the failure to
object. As noted above, R.C. 2923.11(B), which defines “firearm,”
explicitly provides at subsection (B)(2) that circumstantial evidence of
operability by an individual exercising control over the firearm is sufficient
evidence. Had counsel interposed an objection, it would likely have been
overruled. The decision to admit or exclude evidence rests within the trial
Pickaway App. 19CA33 34
court's sound discretion. See State v. Inman, 4th Dist. Ross No. 13CA74,
2014-Ohio-786, at ¶ 20.
{¶64} An attorney's decision as to whether to object at certain times
during trial is presumptively considered a trial tactic or strategy that we will
not disturb. See State v. Thacker, 4th Dist. Lawrence No. 18CA21, 2020-
Ohio-4620, at ¶ 89, State v. Fisk, 9th Dist. Summit No. 21196, 2003-Ohio-
3149, ¶ 9; State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643, (1995).
“Because ‘objections tend to disrupt the flow of a trial, [and] are considered
technical and bothersome by the factfinder * * * competent counsel may
reasonably hesitate to object in the jury's presence.’ ” (Citation omitted.)
State v. Mickens, 10th Dist. Franklin No. 08AP-626, 2009-Ohio-1973, at
¶ 29, quoting State v. Campbell, 69 Ohio St.3d 38, 53, 630 N.E.2d 339(1994); State v. Blair, 2016-Ohio-2872, 63 N.E.3d 798, ¶ 108 (4th Dist.).
{¶65} As to Appellant’s contention that his counsel was deficient for
failure to move for exclusion of the trooper’s testimony based on the State’s
failure to provide a report on the trooper’s testimony, we also find no error.
The Supreme Court of Ohio in State v. Boaston, 160 Ohio St.3d 46, 2020-
Ohio-1061, 153 N.E.3d 44, observed that the plain language of Crim.R.
16(K) expressly provides the consequence for failing to disclose an expert's
report as required: “Failure to disclose the written report to opposing
Pickaway App. 19CA33 35
counsel shall preclude the expert's testimony at trial.” Id. at ¶ 55. As
indicated above, the pertinent statute does not require an expert’s testimony
as to operability, rather, testimony is allowed by “any individual exercising
control over the firearm.” Trooper Large did not prepare an “expert” report.
Trooper Large was not held out as an expert at trial. Again, any motion or
objection as to Trooper Large’s status as an “expert,” would have been
denied. “ ‘Counsel does not provide ineffective assistance by failing to file
futile motions.’ ” State v. Nichols, 4th Dist. Adams No. 11CA9, 2012-Ohio-
92, at ¶ 52, quoting State v. Parra, 8th Dist. No. 95619, 2011-Ohio-3977, at
¶ 78.
{¶66} Upon review of the record, we find Appellant’s counsel’s
decisions to be reasonable trial strategies. We do not find counsel’s
performance fell below the objective standard of reasonableness, thus it was
not deficient. Based on the above, we find no merit to Appellant’s
arguments herein.
2. Defense counsel’s failure to object to Trooper Large’s
testimony concerning the lab report of drugs.
{¶67} “The Sixth Amendment's Confrontation Clause provides, ‘In all
criminal prosecutions, the accused shall enjoy the right * * * to be
confronted with the witnesses against him * * *.’ ” State v. Detienne, 4th
Dist. Athens No. 16CA13, 2017-Ohio-9105, at ¶ 17, quoting State v.
Pickaway App. 19CA33 36
Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 34. The
Confrontation Clause of the Sixth Amendment is made applicable to the
states by the Fourteenth Amendment. State v. Issa, 93 Ohio St.3d 49, 752
N.E.2d 904, fn. 4 (2001). Consequently, this constitutional right applies to
both federal and state prosecutions, but the right of confrontation in Article
I, Section 10 of the Ohio Constitution provides no greater right of
confrontation than the Sixth Amendment. State v. Arnold, 126 Ohio St.3d
290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 12.
{¶68} “ ‘The United States Supreme Court has interpreted [the Sixth
Amendment right to confrontation] to mean that admission of an out-of-
court statement of a witness who does not appear at trial is prohibited by the
Confrontation Clause if the statement is testimonial unless the witness is
unavailable and the defendant has had a prior opportunity to cross-examine
the witness.’ ” Detienne, supra, at ¶ 23, quoting Maxwell at ¶ 34, citing
Crawford v. Washington, 124 S. Ct. 1354, 541 U.S. 36, 53-54 (2004).
{¶69} “ ‘It is a well-established principle that Confrontation Clause
rights, like other constitutional rights, can be waived.’ ” Detienne, supra, at
¶ 24, quoting State v. Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903
N.E.2d 270, ¶ 14, citing Brookhart v. Janis, 86 S. Ct. 1245, 384 U.S. 1, 4
Pickaway App. 19CA33 37
(1966); Hawkins v. Hannigan, 185 F.3d 1146, 1154 (10th Cir.1999).
(Internal citations omitted).
{¶70} In Ohio, a defendant can waive his right to cross-examine a
laboratory analyst by failing to comply with a notice-and-demand statute.
See Detienne, supra, at ¶ 25. “ ‘[N]otice-and-demand statutes require the
prosecution to provide notice to the defendant of its intent to use [a
laboratory] analyst's report as evidence at trial, after which the defendant is
given a period of time in which he may object to the admission of the
evidence absent the analyst's appearance live at trial.’ ” Detienne, supra,
quoting Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 557 U.S. 305,
326 (2009).
{¶71} The most frequently relied upon notice-and-demand statute is
found in R.C. 2925.51. See Detienne, supra, at ¶ 26. Under R.C.
2925.51(A), in any criminal prosecution for a violation of Chapters 2925
(“Drug Offenses”) or 3719 (“Controlled Substances”), a qualifying
laboratory report stating that the substance that is the basis of the alleged
offense has been weighed and analyzed and stating the findings as to the
content, weight, and identity of the substance and that it contains any
amount of a controlled substance and the number and description of unit
dosages, is admissible at trial as prima-facie evidence of the content,
Pickaway App. 19CA33 38
identity, and weight or the existence and number of unit dosages of the
substance so long as the prosecuting attorney serves a copy of the report on
the accused beforehand. However, “[t]he report shall not be prima-facie
evidence of the contents, identity, and weight or the existence and number of
unit dosages of the substance if the accused or the accused's attorney
demands the testimony of the person signing the report, by serving the
demand upon the prosecuting attorney within seven days from the accused
or the accused's attorney's receipt of the report.” R.C. 2925.51(C).
(Emphasis added.)
{¶72} “In Pasqualone, the Ohio Supreme Court held that ‘the
procedures of R.C. 2925.51 adequately protect an accused's right to
confrontation, so that an accused who fails to demand the testimony of the
analyst pursuant to R.C. 2925.51(C) validly waives his opportunity to cross-
examine the analyst.’ ” Detienne, supra, at ¶ 27, quoting, Pasqualone, 121
Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270, at ¶ 44. In other words,
“When the state has complied with its obligations under R.C. 2925.51, a
defendant's failure to use the procedures of R.C. 2925.51(C) to demand that
a laboratory analyst testify constitutes a waiver of the opportunity to cross-
examine the analyst at trial and allows the analyst's report to be admitted as
Pickaway App. 19CA33 39
prima facie evidence of the test results.” Id., at paragraph two of the
syllabus.
{¶73} Appellant contends that trial counsel was ineffective for failing
to object to the lab report conducted on the drugs found in his vehicle. The
lab report evidence was presented solely through the testimony of Trooper
Large, at times reading from the report. The lab report was provided to
Appellant’s counsel pursuant to Crim.R. 16, but his counsel failed to
demand the testimony of the person who analyzed the drugs.
{¶74} Detienne, who was convicted of operating a motor vehicle
under the influence of a controlled substance also contended that his trial
counsel was ineffective for failing to demand the chemist’s testimony within
the statutory time limit. However, this court observed that in Pasqualone,
the Ohio Supreme Court held that “ ‘ “an accused's attorney is capable of
waiving his [or her] client's right to confrontation by not demanding that a
laboratory analyst testify pursuant to the opportunity afforded by [the
relevant statute], because whether to cross-examine a particular witness is
properly viewed as a decision relating to trial tactics or strategy.” ’ ”
Detienne, supra, at ¶ 37, quoting State v. McCausland, 124 Ohio St.3d 8,
2009-Ohio-5933, 918 N.E.2d 507, ¶ 14, quoting Pasqualone, 121 Ohio St.3d
186, 2009-Ohio-315, 903 N.E.2d 270, at ¶ 44. “ ‘[D]ecisions regarding
Pickaway App. 19CA33 40
cross-examination are within trial counsel's discretion and generally do not
form the basis for a claim of ineffective assistance of counsel.’ ” Detienne,
supra, quoting State v. Harris, 10th Dist. Franklin Nos. 09AP-578, 09AP-
579, 2010-Ohio-1688, ¶ 28, citing State v. Flors, 38 Ohio App.3d 133, 139,
528 N.E.2d 950 (8th Dist.1987). In Detienne, we held that by asserting the
affirmative defense of medical authorization [to explain chemical substances
found in his system], Detienne was admitting the facts claimed by the
prosecution and then relying on independent facts or circumstances that he
claimed exempted him from liability. Id. at ¶ 38. Thus, we found trial
counsel's decision to forgo demanding the chemist’s testimony could be
viewed as sound trial strategy and could not form the basis of a claim of an
ineffective assistance of counsel. Id.
{¶75} The State of Ohio has directed us to State v. Fulk, 3d Dist. Van
Wert No. 2007-Ohio-2695, wherein the Third District was confronted with a
similar argument. In resolving the ineffective assistance claim, the appellate
court reasoned:
[W]e find that Fulk's counsel's apparent failure to
demand the testimony of the BCI technician prior to trial
or otherwise object to the foundation laid for the
introduction of the reports at trial could well have been
trial strategy. Defense attorneys commonly do not wish
to have a chemist present to testify at trial in order to de-
emphasize the nature or amount of the drugs in front of
the jury. * * *. * * * [W]e will not presume
Pickaway App. 19CA33 41
ineffectiveness or that these strategies were not legitimate
solely from a failure to object at trial. Nor can we
presume that had defense counsel made a pretrial demand
for the testimony of the chemist, the outcome of the trial
would have been different. See Strickland, 466 U.S. at
688, 694.
{¶76} The same reasoning is equally applicable in this case.
Appellant’s counsel may well have been attempting to de-emphasize the
nature of the drugs found or de-legitimize the testimony of a non-expert.
Having a chemist discuss his or her qualifications before testifying about the
contents of the lab report certainly would have bolstered the State’s case.
{¶77} More importantly, we completely agree that in this case, had
counsel made a pretrial demand for the expert’s testimony we cannot
presume the outcome would have been different. The record is replete with
instances and examples of Appellant’s refusal to cooperate with his counsel
so that the most effective trial strategy could be planned. Then, when
Appellant took the stand to testify, instead of answering the direct-
examination questions posed by his counsel, he went off on extremely long
diatribes raising issues already determined by the trial court and irrelevant to
his counsel’s attempt to question him.
{¶78} Given the record in this case, we find no merit to Appellant’s
assertion that his attorney was ineffective for failing to object to the
Pickaway App. 19CA33 42
trooper’s testimony about the lab report or failing to demand a chemist’s
testimony. Counsel’s decisions appear to be reasonable trial strategy.
3. Waiver of fine
{¶79} Appellant also asserts his counsel was ineffective by failing to
move for a waiver of the fine because there is reasonable probability that the
trial court would have found him indigent, thereby relieving him of the
obligation to pay a fine. R.C. 2947.23 provides for costs to be included in a
criminal sentence. In all criminal cases a judge must include in the sentence
the costs of prosecution and render a judgment against the defendant for
such costs, even if the defendant is indigent. R.C. 2947.23(A)(1)(a).
However, a trial court retains jurisdiction to waive, suspend, or modify the
payment of the costs “at the time of sentencing or at any time thereafter.”
R.C. 2947.23(C). A trial court may waive court costs, but it is not required,
if a defendant is indigent. See State v. Hale, 5th Dist. Perry No. 19CA14,
2020-Ohio-1399, at ¶ 16. (Internal citations omitted.)
{¶80} In State v. Davis, 159 Ohio St. 3d 31, 2020-Ohio-309, 146
N.E.3d 560, decided February 4, 2020, the Ohio Supreme Court held that
when an indigent defendant makes an ineffective assistance of counsel claim
based upon counsel's failure to request a waiver of court costs, a court must
objectively consider the facts and circumstances to determine whether the
Pickaway App. 19CA33 43
defendant established the necessary prejudice sufficient to support that claim
(i.e., but for counsel's deficient performance, a reasonable probability exists
that the result of the proceeding would have been different). See Hale,
supra, at ¶ 18. The Court also pointed out that a determination of indigency
alone does not rise to the level of creating a reasonable probability that the
trial court would have waived costs had defense counsel requested the court
to do so. For example, if a court finds that a defendant has the ability to
work and pay court costs in the future, the court may decide to not waive
court costs. Hale observed that a court must look at all the circumstances
that the defendant sets forth in attempting to demonstrate prejudice and
determine whether there is a reasonable probability that the trial court would
have granted a motion to waive costs had one been made. Id. at ¶ 19. See
Davis, supra, at ¶ 15.
{¶81} At trial, Trooper Large testified as to the search he conducted
after he placed Appellant under arrest:
Inside his wallet he had money, $300.00 in one hundred
dollar bills, and then in his soles of his shoes, in both of
them, there was separated a total of $1,017.00 separated
between both shoes, both inside the soles of his shoes.
{¶82} In this case, Appellant initially presented to arraignment with a
Pickaway App. 19CA33 44
retained attorney. Appellant later executed the appropriate form and was
found to be indigent, thus receiving a court-appointed attorney. When the
trial court imposed sentence, the court stated:
It will be the order of the court that he stand committed
for a period of thirty-six months, which is the maximum,
pay the court costs, a fine of $1,500.00, execution is
hereby awarded to the state for final cost, and the money
that was confiscated from the defendant at the time of the
arrest.
{¶83} We do not agree that Appellant’s counsel was deficient for
failing to request waiver of the fine. As indicated above, just because
Appellant qualified for appointed counsel does not mean that the trial court
would have again found him indigent with no present or future ability to pay
fines. At sentencing, Appellant was approximately 46 years old. He was
given a 36-month sentence. He was arrested with $1,317.00 in cash on his
person. There is no reason to believe that had counsel filed such a motion,
that it would have been successful. Appellant has not presented any facts or
circumstances, other than his indigency, to support a finding that there was a
reasonable probability that the trial court would have granted the request to
waive the $1,500.00 fine imposed.
{¶84} We have reviewed the record before us and found nothing that
would support the conclusion that there was a reasonable probability that the
outcome would have changed had a motion been filed. In fact, when
Pickaway App. 19CA33 45
Appellant filed a Pro Se Motion for Judicial Release in April 2020, he
indicated his plan to become “gainfully employed to fulfill my obligations to
the court by paying all court fines and court costs assessed” in his case.
Nothing in his motion indicated an inability to become employed or pay his
fines and costs. We conclude that Appellant has failed to demonstrate a
reasonable probability that the outcome would have been different and
therefore, Appellant did not suffer prejudice as a result of counsel not filing
a motion to waive the fine imposed in his case.
{¶85} Based on the foregoing, we find no merit to Appellant’s
assignment of error. We do not find Appellant was deprived of the effective
assistance of counsel. Accordingly, we overrule the fourth assignment of
error.
ASSIGNMENT OF ERROR FIVE - DENIAL OF MOTION
FOR ACQUITTAL PURSUANT TO CRIM.R. 29
{¶86} The hearing transcript reveals at the close of the State’s case
Appellant’s counsel made a Crim.R. 29 motion, without argument, which
was denied. The hearing transcript further reveals that prior to Appellant’s
removal from the courtroom the trial court inquired as to whether there was
an issue of identification of the defendant by the arresting officer. The State
of Ohio responded: “I don’t believe so, Your Honor. The Officer has been
able to identify when he walked in today, so he is able to identify for the
Pickaway App. 19CA33 46
record.” At this point, Appellant’s counsel remained silent. Appellant
interjected with one of his previously described disruptions, irrelevant to any
issue of identity. On appeal, Appellant contends that because Trooper Large
did not provide an in-court identification as to whether Appellant was the
individual subject of the traffic stop, the prosecution failed to establish the
identity of Appellant in its case in chief.
STANDARD OF REVIEW
{¶87} Crim.R. 29 provides, in pertinent part, as follows:
(A) Motion for Judgment of Acquittal. The court on
motion of a defendant or on its own motion, after the
evidence on either side is closed, shall order the entry of
a judgment of acquittal of one or more offenses charged
in the indictment, information, or complaint, if the
evidence is insufficient to sustain a conviction of such
offense or offenses. The court may not reserve ruling on
a motion for judgment of acquittal made at the close of
the state’s case.
See, e.g., State v. Wycuff, 4th Dist. Pickaway No. 19CA28, 2020-Ohio-5320,
at ¶ 18. “A motion for acquittal under Crim.R. 29(A) is governed by the
same standard as the one for determining whether a verdict is supported by
sufficient evidence.” See State v. Thacker, 4th Dist. Lawrence No. 18CA 21,
2020-Ohio-4620, at ¶ 31; State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-
2417, 847 N.E.2d 386, ¶ 37; State v. Husted, 2014-Ohio-4978, 23 N.E.3d
253, ¶ 10 (4th Dist.).
Pickaway App. 19CA33 47
{¶88} “When a court reviews a record for sufficiency, ‘[t]he 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.’ ” State v.
Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146, quoting
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of
the syllabus; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979). In making its ruling, a court does not weigh the evidence but
simply determines whether the evidence, if believed, is adequate to support a
conviction. In other words, the motion does not test the rational
persuasiveness of the state's case, but merely its legal adequacy. See State v.
Reyes-Rosales, 4th Dist. Adams No. 15CA1010, 2016-Ohio-3338, ¶ 15.
{¶89} Additionally, the general rule is that an appellate court will not
consider any error which counsel for a party complaining of the trial court's
judgment could have called but did not call to the trial court's attention at a
time when such error could have been avoided or corrected by the trial court.
See State v. Baxla, 4th Dist. Highland No. 656, 1988 WL 65644, *3 (June
13, 1988); State v. Awan, 22 Ohio St.3d 120, 122 (1986); State v. Childs, 14
Ohio St.2d 56, (1968), paragraph three of the syllabus; State v. Williams, 51
Ohio St.2d 112, 117 (1977). In this case, because Appellant did not assert
Pickaway App. 19CA33 48
insufficiency of proof of identity as one of the grounds for his Crim.R. 29(A)
motion for judgment of acquittal, he arguably waived the raising of such
error on appeal. Id. at *3. But see State v. Jackson, 3d Dist. Allen No. 1-13-
83, 2020-Ohio-5224, at ¶ 12:
Whether a sufficiency of the evidence argument is
reviewed under a prejudicial error standard or under a
plain error standard is purely academic. (Internal
citations omitted.) If there is a failure of proof on any
element of the offense, the defendant is entitled to a
judgment of acquittal as a matter of law. See also State
v. Brown, 2d Dist. Montgomery No. 17891, 2000 WL
966161 (July 14, 2000), *8.
LEGAL ANALYSIS
{¶90} Appellant was convicted of Having Weapons While Under
Disability, R.C. 2923.13(A)(2). Appellant asserts there was not sufficient
evidence of the proof of his identity. The State has the burden to prove
every element of the crime charged beyond a reasonable doubt, including the
identity of the person who committed the crime. See State v. Bailey, 2d Dist.
Montgomery No. 27177, 2017-Ohio-2679, at ¶ 18; State v. Tate, 140 Ohio
St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 15 (Internal citations omitted).
There is no requirement that a witness must make an in-court identification
of a defendant in criminal cases; direct or circumstantial evidence is
sufficient to establish the identity of the accused as the person who
committed the crime. Cleveland v. Williams, 8th Dist. Cuyahoga No.
Pickaway App. 19CA33 49
101588, 2015-Ohio-1739, ¶ 25; State v. Eckard, 3rd Dist. Marion No. 9-15-
45, 2016-Ohio-5174, ¶ 30.
{¶91} In Baxla, supra, this court held that witness testimony referring
to “the defendant” coupled with a demonstration that the person committing
the offense was arrested and charged, and the defendant's appearance at trial
in response to the charge, had been found to constitute sufficient evidence of
identification to withstand a Crim.R. 29(A) motion. In State v. Brown, 12th
Dist. Warren No. 2006-10-120, 2007-Ohio-5787, ¶ 30, the defendant was
present at trial and the trooper testified that he had the “opportunity to speak
to the defendant.” However, based upon an identification argument, the
court in Bailey, supra, reversed Bailey’s conviction and vacated her
sentence. The Bailey court distinguished Baxla and similar cases, observing
that “Here, there was no such indirect recognition of the defendant in court
as the person who committed the assault or even that such person was
charged and arrested.” Id. at ¶ 23.
{¶92} In this case, Trooper Large testified regarding Appellant’s
identity as follows:
Q: And did you make contact with the driver?
A: Yes I did.
Q: Now earlier today we talked about the fact that the defendant is
Pickaway App. 19CA33 50
not in the courtroom, but were you able to see the defendant
earlier this morning?
A: Yes, Ma’am.
Q: And is the defendant in this particular case the same person
who was driving the vehicle back on January 6, 2018?
A: Yes, Ma’am.
Q: Was there anyone else in the vehicle at that time?
A: No, Ma’am.
Later, the video of the traffic stop was played for the jury.
Q: Now, Trooper Large, we just watched that video, were going to
call that video State’s Exhibit 1. It has been redacted because
you spent a lot of time searching that vehicle, correct?
A: That’s correct.
Q: But what was there, is that a true and accurate depiction of what
occurred on January 6, 2018?
A: Yes, Ma’am.
Later, Trooper Large testified:
Q: Were you able to determine whether or not the defendant was
under disability for owning a weapon?
A: Yes, Ma’am.
Pickaway App. 19CA33 51
Q: And how did you make that determination?
A: Mr. Smith, first he admitted, he said I have been convicted of a
burglary. And then at West Jefferson dispatch we ran a current
history check on Mr. Smith. The current history indicated what
Mr. Smith admitted to. I verified all the information with his
date of birth, social security number, the case number, all of
that was confirmed to be true and accurate.4
{¶93} We find that after viewing the evidence in a light more
favorable to the prosecution, any rational trier of fact could have found
Appellant’s identity proven beyond a reasonable doubt. We are mindful that
this court is not to weight the evidence but determine, if believed, the
evidence is adequate. Accordingly, we find no merit to the fifth assignment
of error. It is hereby overruled.
ASSIGNMENT OF ERROR SIX - MANIFEST
WEIGHT OF THE EVIDENCE
{¶94} Appellant contends that his conviction for having a weapon
under disability is against the manifest weight of the evidence, given the lack
of evidence to establish Trooper Large’s qualifications to opine on the
operability of the gun found in Appellant’s car. Notwithstanding the
4
The defense motion was made at the close of the State’s case. Appellant testified on his own behalf.
While his later testimony related to the element of identity may have bolstered the State’s case, it is not to
be considered.
Pickaway App. 19CA33 52
admissibility of the testimony, Appellant asserts the testimony is unreliable
and carries little weight. Furthermore, Appellant contends that the
individuals who created the lab report or tested the drugs found in his car
were not subject to cross-examination to ensure the reliability of the tests.
Thus, Appellant contends his convictions on the drug offenses are against
the manifest weight of the evidence.
STANDARD OF REVIEW
{¶95} In determining whether a criminal conviction is against the
manifest weight of the evidence we must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses,
and determine whether in resolving conflicts in the evidence, the trier of fact
clearly lost its way and created such a manifest miscarriage of justice that we
must reverse the conviction. See State v. Hess, 4th Dist. Meigs No. 20CA1,
2021-Ohio-1248, at ¶ 15; State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997); State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524,
960 N.E.2d 955, ¶ 119; State v. Phillips, 4th Dist. Scioto No. 18CA3832,
2018-Ohio-5432, ¶ 23.
{¶96} To satisfy its burden of proof, the state must present enough
substantial credible evidence to allow the trier of fact to conclude that the
state had proven all the essential elements of the offense beyond a
Pickaway App. 19CA33 53
reasonable doubt. See Hess, supra, at ¶ 16; State v. Smith, 2020-Ohio-5316,
162 N.E.3d 898, ¶ 31 (4th Dist.), citing State v. Eskridge, 38 Ohio St.3d 56,
526 N.E.2d 304, syllabus (1988). However, it is the role of the jury to
determine the weight and credibility of evidence. See State v. Kirkland, 140
Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 132. “ ‘A jury, sitting as
the trier of fact, is free to believe all, part or none of the testimony of any
witness who appears before it.’ ” State v. Reyes-Rosales, 4th Dist. Adams
No. 15CA1010, 2016-Ohio-3338, ¶ 17, quoting State v. West, 4th Dist.
Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23. We defer to the trier of fact
on these evidentiary weight and credibility issues because it is in the best
position to gauge the witnesses' demeanor, gestures, and voice inflections,
and to use these observations to weigh their credibility. Id.; State v. Koon,
4th Dist. Hocking No. 15CA17, 2016-Ohio-416, ¶ 18.
LEGAL ANALYSIS
{¶97} In sum, Appellant contends that Trooper Large’s testimony on
the operability of the firearm discovered in his vehicle and the results of the
lab reports, conducted by someone other than Trooper Large, were
unreliable and carried little weight. Thus, Appellant asserts that his
convictions for Having Weapons While Under Disability and for the
misdemeanor drug offenses are against the manifest weight of the evidence.
Pickaway App. 19CA33 54
{¶98} We have previously found no error due to defense counsel’s
failure to object to Trooper Large’s testimony as to operability. As set forth
above, pursuant to R.C. 2923.13(B)(2), circumstantial evidence of
operability by an individual who has exercised control over a firearm is
sufficient. Trooper Large was not held out as an expert as to the operability
of the firearm. We also found that trial counsel was not ineffective for
failing to object to the trooper’s testimony concerning the lab report results
and that failing to demand the chemist appear and testify at trial may have
been reasonable trial strategy.
{¶99} The trial transcript reflects that the prosecutor showed Trooper
Large photographs he had taken of the drugs he had confiscated from
Appellant’s vehicle. Trooper Large identified and authenticated the
photographs. Trooper Large testified that he had the drugs tested at the Ohio
State Highway Patrol Lab. The prosecutor asked Trooper Large to read
from the reports. The reports were entered into evidence and the jury could
read the name of the chemist who performed the drug testing and prepared
the reports.
{¶100} It was up to the jury to determine the weight to be given the
evidence. Having reviewed the record, we cannot conclude that the trier of
fact lost its way when it convicted Appellant of all counts in this case. The
Pickaway App. 19CA33 55
jurors could have reasonably believed that based on Trooper Large’s
testimony, the firearm seen in the photographs was operable. And they
could have reasonably believed that the drug testing reports which Trooper
Large read from, signed by another person, contained accurate findings.
Any question about the reasonableness of the inferences to be drawn from
that evidence was an issue of weight rather than admissibility. See State v.
Irvine, 9th Dist. Summit No. 28998, 2019-Ohio-959, at ¶ 31.
{¶101} “ ‘A reviewing court should not disturb the fact-finder's
resolution of conflicting evidence unless the fact-finder clearly lost its
way.’ ” State v. Newman, 4th Dist. Scioto No. 14CA3658, 2015-Ohio-4283,
45 N.E.3d 624, ¶ 56, quoting, State v. Davis, 4th Dist. Washington No.
09CA28, 2010-Ohio-555, at ¶ 16-17. We do not find this to be the
exceptional case in which the evidence weighs heavily against the
convictions. Accordingly, we find no merit to the sixth assignment of error.
It is hereby overruled.
ASSIGNMENT OF ERROR SEVEN - SENTENCE
{¶102} Appellant was sentenced to a prison term of 36 months for
Having Weapons While Under Disability, a felony of the third degree.
However, Appellant contends that given his record, a community control
sentence would have been more appropriate. Appellant contends that there
Pickaway App. 19CA33 56
are numerous factors under R.C. 2929.12 that mitigate against a prison
sentence, specifically: (1) the fact of his mental illness; (2) the fact that his
prior felony conviction is not recent; (3) the fact that his current drug
offenses were not felony offenses; and (4) the fact that he did not cause
injury to persons or property. For these reasons, Appellant concludes the
trial court should have sentenced him to community control instead of a
prison term.
STANDARD OF REVIEW
{¶103} Appellate review of felony sentences generally employs the
standard of review set forth in R.C. 2953.08. See State v. Wright, 4th Dist.
Highland No. 2020-Ohio-5195, at ¶ 5; State v. Prater, 4th Dist. Adams No.
18CA1069, 2019-Ohio-2745, at ¶ 12, citing State v. Graham, 4th Dist.
Adams No. 17CA1046, 2018-Ohio-1277, at ¶ 13. R.C. 2953.08(G)(2)
specifies that an appellate court may increase, reduce, modify, or vacate and
remand a challenged felony sentence if the court clearly and convincingly
finds either:
(a) That the record does not support the sentencing
court's findings under division (B) or (D) of section
2929.13, division (B)(2)(e) or (C)(4) of section
2929.14, or division (I) of section 2929.20 of the
Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
Pickaway App. 19CA33 57
{¶104} “[C]lear and convincing evidence is that measure or degree of
proof which is more than a mere ‘preponderance of the evidence,’ but not to
the extent of such certainty as is required ‘beyond a reasonable doubt’ in
criminal cases, and which will produce in the mind of the trier of facts a firm
belief or conviction as to the facts sought to be established.” Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus. Thus, an appellate court may vacate or modify a sentence if the
court concludes, by clear and convincing evidence, the record does not
support the sentence. State v. Bowling, 4th Dist. Jackson No. 19CA2, 2020-
Ohio-813, ¶ 6.
{¶105} “ ‘ “[A] sentence is generally not contrary to law if the trial
court considered the R.C. 2929.11 purposes and principles of sentencing as
well as the R.C. 2929.12 seriousness and recidivism factors, properly
applied postrelease control, and imposed a sentence within the statutory
range.” ’ ” Allen, supra, at ¶ 14, quoting State v. Perry, 4th Dist. Pike No.
16CA863, 2017-Ohio-69, ¶ 21, quoting State v. Brewer, 2014-Ohio-1903,
11 N.E.3d 317, ¶ 38 (4th Dist.).
{¶106} A trial court is required only to “carefully consider” the
factors in R.C. 2929.11 and R.C. 2929.12 when imposing sentence, and is
not required to make any “findings,” or state “reasons” regarding those
Pickaway App. 19CA33 58
considerations. See State v. Allen, 4th Dist. Pickaway No. 19CA31, 2021-
Ohio-648, at ¶ 13; State v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855, 846
N.E.2d 1, ¶ 38; State v. Kulchar, 4th Dist. Athens No. 10CA6, 2015-Ohio-
3703, ¶ 47. “And on review, ‘R.C. 2953.08(G)(2)(b) * * * does not provide
a basis for an appellate court to modify or vacate a sentence based on its
view that the sentence is not supported by the record under R.C. 2929.11 and
2929.12.’ ” Allen, supra, quoting State v. Jones, Slip Opinion No. 2020-
Ohio-6729, at ¶ 39.
LEGAL ANALYSIS
{¶107} R.C. 2929.11 sets forth the overriding purposes of felony
sentencing, which are to protect the public from future crime by the offender
and others, to punish the offender, and to promote the effective rehabilitation
of the offender using the minimum sanctions that the court determines
accomplish those purposes without imposing an unnecessary burden on state
or local resources. R.C. 2929.11(A). In fashioning a sentence, the court
shall consider the non-exhaustive list of factors under R.C. 2929.12.
{¶108} Appellant has emphasized R.C. 2929.12(C)(3): “In
committing the offense, the offender did not cause or expect to cause
physical harm to any person or property.”; and, R.C. 2929.12(C)(4): “There
are substantial grounds to mitigate the offender's conduct, although the
Pickaway App. 19CA33 59
grounds are not enough to constitute a defense.” Beginning with the latter,
Appellant argues the trial court did not consider his mental illness as a
mitigation of his conduct. In State v. D-Bey, 8th Dist. Cuyahoga No.
109000, 2021-Ohio-60, the defendant made a similar argument.
{¶109} D-Bey contended that the trial court failed to give
consideration to his mental health, given that his conduct was caused by an
episode of mental illness. D-Bey pointed out that the trial court did not even
comment on the fact that he had received mental health services, but instead
focused on his criminal history. However, the 8th District observed that D-
Bey's mental health was just one factor for the trial court to consider in
determining an appropriate sentence. Based on the record, D-Bey was
unable to demonstrate that the trial court failed to consider the purposes and
principles of sentencing under R.C. 2929.11 or the sentencing factors under
R.C. 2929.12 when sentencing him. The trial court was not required to
demonstrate how its sentence served each of the purposes and principles of
sentencing or to identify or explain its evaluation of each relevant sentencing
factor in order to comply with R.C. 2929.11 and 2929.12. Id. at ¶ 74.
{¶110} D-Bey also discussed the Supreme Court of Ohio’s recent
decision in Jones, supra. Accordingly, the 8th District found it could not
review D-Bey's sentences to determine whether they are “excessive” or
Pickaway App. 19CA33 60
otherwise not “supported by the record under R.C. 2929.11 and 2929.12.”
Id. at ¶ 39. The 8th District found that even if D-Bey's sentences were
subject to such a review, it would find no reversible error. The record
reflected that the trial court considered the purposes and principles of
sentencing under R.C. 2929.11, the relevant sentencing factors under R.C.
2929.12, the PSI and all the other relevant information presented at (or prior
to) D-Bey’s sentencing hearing.
{¶111} In this case, there is no dispute that Appellant’s sentence is
within the statutory range. Furthermore, the record demonstrates that at
Appellant’s sentencing the trial court considered the principles and purposes
as elaborated in R.C. 2929.11 and the factors under R.C. 2929.12. The
court’s consideration is demonstrated in both the sentencing transcript and
the sentencing entry. While there was a concern regarding mental health
issues in the beginning of these proceedings, we note Appellant has not
presented evidence of diagnosis of any mental health condition at the time of
the offenses, nor at trial, and he was found competent to stand trial.5
{¶112} While it is certainly laudable that Appellant’s drug offenses
were not felonies, his prior felony was not recent, and no person or property
5
Dr. Edwards’ competency report noted at page 4 that, “[T]he defendant did not report symptoms of
mental conditions over the course of the assessment. The totality of the evidence does not support
psychological symptoms were objectively evident nor was it apparent that psychological processes
interfered with the defendant’s performance on competency-relevant areas of questioning * * *.”
Pickaway App. 19CA33 61
was harmed, “ ‘ [i]n imposing a sentence it is the role of the trial court to
determine the weight afforded to any particular statutory factors, mitigating
grounds, or other relevant circumstances.’ ” State v. Loy, 4th Dist.
Washington No. 19CA21, 2021-Ohio-403, at ¶ 36, quoting State v. Pitzer,
4th Dist. Highland No. 19CA23, 2020-Ohio-4322, ¶ 19. And, “ ‘[s]imply
because the court did not balance the factors in the manner appellant desires
does not mean * * * that clear and convincing evidence shows that the
court's findings are not supported by the record.’ ” Pitzer at ¶ 20, quoting
State v. Butcher, 4th Dist. Athens No. 15CA33, 2017-Ohio-1544, ¶ 87. See
also Allen, supra, at ¶ 18 (At best, we find Appellant's arguments are a mere
disagreement with the court's balancing of the statutory factors, which is not
enough to show that the sentence is clearly and convincingly not supported
by record. See State v. Butcher, 4th Dist. Athens No. 15CA33, 2017-Ohio-
1544, ¶ 87.) Similarly, just because Appellant disagrees with the trial
court’s balancing of the statutory factors pertinent to his case does not mean
Appellant’s sentence is clearly and convincingly not supported by the
record. Based on the foregoing, we find no merit to Appellant’s seventh
assignment of error. It is hereby overruled.
Pickaway App. 19CA33 62
CONCLUSION
{¶113} We have found no merit to the arguments asserted in
Appellant’s seven assignments of error challenging the trial court
proceedings, his trial, and his sentence. Accordingly, all assignments of
error are hereby overruled. The judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Pickaway App. 19CA33 63
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Pickaway County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed 60 days upon the bail previously posted. The purpose of a continued
stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a
stay is continued by this entry, it will terminate at the earlier of the
expiration of the 60-day period, or the failure of the Appellant to file a notice
of appeal with the Supreme Court of Ohio in the 45-day appeal period
pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of
Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior
to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J., Concur in Judgment and Opinion.
For the Court,
______________________________
Jason P. Smith
Presiding 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.
Pickaway App. 19CA33 64