[Cite as State v. Gibson, 2014-Ohio-1169.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 2013CA00175
:
REGINALD OCTAVE GIBSON :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2013CR0120
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 17, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOHN D. FERRERO, JR. EUGENE O’BYRNE
STARK COUNTY PROSECUTOR 101 Central Plaza South
RENEE M. WATSON Canton, OH 44702
110 Central Plaza South, Ste. 510
Canton, OH 44702-1413
Stark County, Case No. 2013CA00175 2
Delaney, J.
{¶1} Appellant Reginald Octave Gibson appeals from the August 12, 2013
Judgment Entry of the Stark County Court of Common Pleas. Appellee is the State of
Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Darlene Quarterman and appellant have known each other for 6 years.
Prior to January 12, 2013, they had not seen each other for about a month when they
“ran into each other” and Quarterman asked appellant about her belongings that were
still at his home. Appellant suggested they get together later to discuss moving her
things into storage. Quarterman was now involved in a new relationship and her new
friend was present when this conversation took place.
{¶3} On January 13, 2013, Quarterman rented a room at the Perry Inn, located
at 4531 Lincoln Way East, Perry Township, Massillon, Ohio, for two days. She and
appellant were at the motel together in Room 122 drinking with another resident and
listening to music. The other resident left and Quarterman and appellant decided to go
to the nearby Sheetz gas station to buy beer. On the walk back from Sheetz to the
motel, they talked about Quarterman “moving on” in her new relationship. Quarterman
testified within five or ten minutes of arriving back in the motel room, appellant began to
repeatedly hit her in the face with his fist.
{¶4} Quarterman testified appellant continued “whaling on [her], hitting [her] in
the face” for ten or fifteen minutes while she begged him to stop. She tasted blood and
felt blood coming from her eye. Appellant told her to take her clothes off and she
complied because his fist was drawn back. He continued to strike her repeatedly.
Stark County, Case No. 2013CA00175 3
{¶5} At one point, Quarterman said she tried to leave the room while appellant
was in the bathroom. She ran out of the motel room naked with her clothes in her hand
and knocked on another door. Appellant came out and dragged her back into the room
by the braids in her hair.
{¶6} Finally, appellant told her to lie down and be quiet. When the beating
stopped and appellant told her to lie still, Quarterman thought he might fall asleep.
When he seemed to be asleep, Quarterman ran from the room to the motel office
clothed but without shoes and the desk clerk called 911 at 2:52 a.m.
{¶7} Two officers from the Perry Township Police Department responded with
paramedics. They found Quarterman in the motel office sitting on a stool; she appeared
“shaken up” and was crying and scared. She had obvious significant injuries: her left
eye was swollen shut with a large bleeding laceration on it and her nose was swollen.
The officers asked what happened and she told them her ex-boyfriend struck her
repeatedly in the face with a closed fist. The officers photographed Quarterman’s
injuries before she was transported by paramedics.
{¶8} The officers found the door of Room 122 ajar and appellant was asleep in
the bed. Both officers noticed a large amount of blood throughout the room, on the
floor, on a pair of shoes, in the bathroom, and on a wash rag in the sink. The officers
woke appellant and pulled the covers off him; as he sat up, they discovered he was
naked and there was blood underneath him on the sheets of the bed and the
pillowcases.
{¶9} The officers told appellant why they were there and appellant stated he
didn’t know Quarterman was injured or how it happened; when he went to sleep, she
Stark County, Case No. 2013CA00175 4
was fine. Officers observed a small spot of dried blood on appellant’s left cheek and a
small amount of blood on the palms of both hands; he didn’t know how it got there and
had no injuries. The officers took photos of the scene and of appellant.
{¶10} Appellant refused to answer any further questions and was arrested.
{¶11} In the meantime, paramedics transported Quarterman to Aultman Hospital
by ambulance. They were concerned for her head injury because although she was
alert and oriented at first, she became lethargic and could not tolerate the weight of an
ice pack on her eye. Quarterman was determined to have fractured orbital bones and a
broken nose, requiring surgery.
{¶12} Appellant was charged by indictment with one count of felonious assault
pursuant to R.C. 2903.11(A)(1) and one count of abduction pursuant to R.C.
2905.02(A)(2). He entered pleas of not guilty and hired two attorneys in succession.
{¶13} On July 23, 2013, the trial court held a hearing on the second attorney’s
motion to withdraw and appellant’s decision to proceed with trial pro se. The trial was
scheduled to begin a week later, on July 30, 2013. The trial court engaged in a lengthy
colloquy with appellant, discussing his reasons for representing himself and explaining
the implications of doing so. The trial court also appointed standby counsel.
{¶14} The matter proceeded to jury trial as scheduled and appellant was found
guilty as charged. He was sentenced to a prison term of eight years on Count I,
felonious assault, concurrent with a term of 36 months on Count II, abduction.
{¶15} Appellant now appeals from the judgment entry of his conviction and
sentence.
{¶16} Appellant raises three assignments of error:
Stark County, Case No. 2013CA00175 5
ASSIGNMENTS OF ERROR
{¶17} “I. THE TRIAL COURT ERRED BY ALLOWING APPELLANT TO WAIVE
HIS RIGHT TO COUNSEL, AS APPELLANT’S WAIVER WAS NOT KNOWINGLY,
INTELLIGENTLY, AND VOLUNTARY (sic).”
{¶18} “II. THE TRIAL COURT ERRED BY PUNISHING THE DEFENDANT FOR
EXERCISING HIS CONSTITUTIONAL RIGHT TO DEFEND HIMSELF AT A JURY
TRIAL BY SENTENCING APPELLANT TO THE MAXIMUM SENTENCE FOR THE
OFFENSE OF FELONIOUS ASSAULT.”
{¶19} “III. THE JURY’S FINDING OF GUILTY WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE.”
ANALYSIS
I.
{¶20} In his first assignment of error, appellant argues he did not knowingly,
intelligently, and voluntarily waive his right to counsel. We disagree.
{¶21} The Sixth Amendment to the United States Constitution and Section 10,
Article I of the Ohio Constitution provides that a criminal defendant has a right to
counsel. Crim.R. 44(A) provides that a defendant is entitled to counsel “unless the
defendant, after being fully advised of his right to assigned counsel, knowingly,
intelligently, and voluntarily waives his right to counsel.”
{¶22} A criminal defendant also has the constitutional right to waive counsel and
to represent himself at trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45
L.Ed.2d 562 (1975). However, “the Constitution * * * require[s] that any waiver of the
right to counsel be knowing, voluntary, and intelligent * * *.” Iowa v. Tovar, 541 U.S. 77,
Stark County, Case No. 2013CA00175 6
87-88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004). “In order to establish an effective
waiver of [the] right to counsel, the trial court must make sufficient inquiry to determine
whether defendant fully understands and intelligently relinquishes that right.” State v.
Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph two of the syllabus. The
defendant must make an intelligent and voluntary waiver with the knowledge he will
have to represent himself, and that there are dangers inherent in self-representation.
State v. Ebersole, 107 Ohio App.3d 288, 293, 668 N.E.2d 934 (3rd Dist.1995), citing
Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
{¶23} In Gibson, supra, the Ohio Supreme Court applied the test set forth in Von
Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), which established
the requirements for a sufficient pretrial inquiry by the trial court into a waiver of counsel:
To be valid such waiver must be made with an apprehension of the
nature of the charges, the statutory offenses included within them,
the range of allowable punishments thereunder, possible defenses
to the charges and circumstances in mitigation thereof, and all
other facts essential to a broad understanding of the whole matter.
A judge can make certain that an accused's professed waiver of
counsel is understandingly and wisely made only from a
penetrating and comprehensive examination of all the
circumstances under which such a plea is tendered.
State v. Gibson, 45 Ohio St.2d 366, 377, 345 N.E.2d 399 (1976).
{¶24} In the instant case, the record reveals the trial court met and exceeded
the minimum standard required for accepting a valid waiver of counsel. The trial court
Stark County, Case No. 2013CA00175 7
conducted a lengthy hearing for the specific purpose of weighing counsel’s motion to
withdraw and appellant’s decision to represent himself. The record reveals this hearing
was not cursory; the trial court went to great lengths to urge appellant to reconsider.
The trial court discussed the nature of the charges, the statutory offenses included
within them, and the range of allowable punishments; the court advised appellant of
possible defenses such as alibi or self-defense; finally, the trial court advised appellant
of the myriad ways in which he would be disadvantaged by representing himself, not the
least of which was his lack of access to a law library.1 Finally, the trial court appointed
standby counsel to assist appellant in preparation for trial, including filing of various
discovery materials, and to and remain throughout trial and sentencing.
{¶25} The trial court did not err in permitting appellant to represent himself.
Appellant’s waiver of counsel was knowing, intelligent, and voluntary, and appellant’s
first assignment of error is overruled.
II.
{¶26} In his second assignment of error, appellant contends the trial court
punished him for exercising his constitutional right to jury trial by imposing a maximum
sentence upon Count I, felonious assault. We disagree.
{¶27} It is axiomatic that a defendant should never be punished for exercising
his right to trial or refusing to enter into a plea agreement. State v. O'Dell, 45 Ohio St.3d
140, 147, 543 N.E.2d 1220 (1989). The imposition of a harsher punishment on a
1
A prisoner's right of access to the courts extends only to direct appeals, habeas corpus
applications, and civil rights claims challenging the conditions of confinement. See
Lewis v. Casey, 518 U.S. 343, 355, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Thaddeus-
X v. Blatter, 175 F.3d 378, 391 (6th Cir.1999) (en banc). Appellant’s claims here are
unrelated to his right of access to the courts.
Stark County, Case No. 2013CA00175 8
defendant for exercising his rights would impair the constitutional right to a trial by
creating a chilling effect upon a defendant's ability to exercise his constitutional right.
State v. Scalf, 126 Ohio App.3d 614, 621, 710 N.E.2d 1206 (8th Dist.1998).
Accordingly, a trial court may not augment a sentence because a defendant chooses to
force the government to prove his guilt, “no matter how overwhelming the evidence of
[defendant's] guilt.” Id.
{¶28} The trial court must avoid the appearance of penalizing a defendant for
going to trial. In State v. Morris, 159 Ohio App.3d 775, 2005–Ohio–962, 825 N.E.2d
637 (8th Dist.2005), the court observed, “[If] the court makes statements that ‘give rise
to the inference that [the] defendant may have been punished more severely because of
his assertion of the right to trial by jury,’ we must vacate the sentence * * * unless the
record also contains an unequivocal statement that the defendant's decision to go to
trial was not considered in imposing the sentence.”Id. at ¶ 13, quoting State v. Hobbs,
8th Dist. Cuyahoga No. 81533, 2003–Ohio–4338, ¶ 71. “‘Absent such an unequivocal
statement, the sentence will be reversed and the matter remanded for resentencing.’”
Morris, 2005-Ohio-962 at ¶ 13, quoting Scalf, supra, 126 Ohio App.3d at 621.
{¶29} Appellant here points to no evidence in the record establishing his
sentence was in retaliation for trying his case. During the hearing on counsel’s motion
to withdraw and appellant’s decision to represent himself, appellant asked for
explanation of the plea offer that appellee made to both of his previous attorneys;
appellant believed the offer to be a prison term of six months. Appellee explained in
fact the offer was a four-year prison term with the possibility of judicial release after six
months into SRCCC. It is clear from the record this offer was extended by appellee
Stark County, Case No. 2013CA00175 9
without the trial court’s involvement in plea negotiations. The trial court, at length,
merely clarified whether appellant wanted to accept the plea offer, and he unequivocally
stated no.
{¶30} Upon being found guilty by jury, appellant was sentenced to an aggregate
prison term of 8 years. He contends the greater penalty constitutes punishment for his
decision to proceed to trial. He points to no statement by the trial court giving rise to the
inference the sentence was imposed as punishment for going to trial, however. In fact,
the record indicates the trial court made no promise to appellant whatsoever if he
decided to enter a plea instead of proceeding to trial. There is no indication the trial
court was a participant in the earlier plea negotiations. The trial court is not bound by a
recommendation proffered by the state. State v. Brown, 5th Dist. Stark No. 2007 CA
00095, 2008-Ohio-880, ¶ 78, citing State v. Kitzler, 3rd Dist. Wyandot No. 16-02-06,
2002-Ohio-5253; Akron v. Ragsdale, 61 Ohio App.2d 107, 109, 399 N.E.2d 119 (9th
Dist.1978).
{¶31} There is no evidence the trial court punished appellant for exercising his
right to a jury trial in sentencing him to a prison term of 8 years. We note appellee
requested a consecutive term of 36 months for the abduction count, but the trial court
instead sentenced appellant to concurrent terms. Appellant’s second assignment of
error is therefore overruled.
III.
{¶32} In his third assignment of error, appellant argues his convictions upon one
count of felonious assault and one count of abduction are not supported by sufficient
evidence. We disagree.
Stark County, Case No. 2013CA00175 10
{¶33} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio
St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard
of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which
the Ohio Supreme Court held, “An appellate court’s function when reviewing the
sufficiency of the evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would convince the
average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry
is whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt.”
{¶34} Appellant was convicted of one count of felonious assault pursuant to R.C.
2903.11(A)(1), which states in pertinent part, “No person shall knowingly cause serious
physical harm to another* * *.” He was also convicted of one count of abduction
pursuant to R.C. 2905.02(A)(2), which states, “No person, without privilege to do so,
shall * * * [b]y force or threat, restrain the liberty of another person under circumstances
that create a risk of physical harm to the victim or place the other person in fear[.]”
{¶35} Appellee’s evidence consisted, in part, of the testimony of the victim,
Darlene Quarterman, who described appellant’s assault upon her with his fists.
Quarterman’s orbital bones and nose were fractured, requiring surgery. When she
attempted to flee from the motel room, appellant dragged her back into the room by her
hair and she was unable to leave until he fell asleep. Responding officers and
Stark County, Case No. 2013CA00175 11
paramedics found Quarterman visibly shaken, scared, and with apparent significant
facial injuries.
{¶36} Appellant argues Quarterman’s testimony alone is insufficient evidence to
establish his guilt because the police did not seek witnesses to the assault and did not
confirm the blood in the motel room was that of the victim. Nor was any biological
evidence collected and submitted for testing such as DNA testing. He further argues
the victim’s testimony alone is insufficient evidence to convict him of abduction and
there is no evidence the victim suffered physical harm as a result of his alleged action of
dragging her back into the motel room by her hair. We disagree.
{¶37} Appellant’s argument is premised upon a misunderstanding of our
evaluation of the sufficiency of the evidence. In Thompkins, supra, 78 Ohio St.3d at
390, the Ohio Supreme Court reiterated our standard of review for determining whether
the evidence sufficiently supports a criminal conviction: “A challenge to the sufficiency
of evidence supporting a conviction requires a court to determine whether the state has
met its burden of production at trial. On review for sufficiency, courts are to assess not
whether the state's evidence is to be believed, but whether, if believed, the evidence
against a defendant would support a conviction.” It is axiomatic our inquiry into
sufficiency does not encompass the credibility of the witnesses, which is primarily for
the trier of fact to determine. State v. Yarbrough, 95 Ohio St.3d 227, 231, 2002-Ohio-
2126, 767 N.E.2d 216, ¶ 79. Instead, the Court emphasized that “[i]n essence,
sufficiency is a test of adequacy.” Thompkins, supra, at 386.
{¶38} Here, appellant complains the police officers did not seek out the desk
clerk or potential witnesses in neighboring motel rooms; nor did they collect possibly
Stark County, Case No. 2013CA00175 12
relevant evidence in the room. However, the issue in a sufficiency review concerns
whether the evidence, if believed, would support the conviction, not whether a witness's
testimony is credible. Having reviewed appellee’s evidence in its entirety, we find the
evidence presented, including the testimony of the victim, if believed by the trier of fact,
would support the guilty verdicts.
{¶39} Appellant’s convictions are supported by sufficient evidence and his third
assignment of error is overruled.
CONCLUSION
{¶40} Appellant’s three assignments of error are overruled and the judgment of
the Stark County Court of Common Pleas is affirmed.
By: Delaney, J. and
Hoffman, P.J.
Baldwin, J., concur.