State v. Smith

[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 25
Pickaway 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