State v. Landingham

[Cite as State v. Landingham, 2021-Ohio-4258.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY

STATE OF OHIO, CASE NO. 2020-L-103

Plaintiff-Appellee,
Criminal Appeal from the
-v- Painesville Municipal Court

ERIC D. LANDINGHAM,
Trial Court No. 2020 CRB 01430
Defendant-Appellant.

OPINION

Decided: December 6, 2021
Judgment: Affirmed

James M. Lyons, 240 East Main Street, Painesville, OH 44077 (For Plaintiff-Appellee).

Mandy J. Gwirtz, Mandy Gwirtz, LLC, 20050 Lakeshore Boulevard, Euclid, OH 44123
(For Defendant-Appellant).

THOMAS R. WRIGHT, J.

{¶1} Appellant, Eric D. Landingham, appeals from his conviction in the

Painesville Municipal Court. We affirm.

{¶2} Following a bench trial, appellant was found guilty of assault, a first-degree

misdemeanor, in violation of R.C. 2903.13(A) (“No person shall knowingly cause or

attempt to cause physical harm to another * * *.”). On September 14, 2020, appellant

was sentenced to 180 days in the Lake County Jail. While serving his jail sentence,

appellant appealed his conviction. Appearing from the record that appellant has
completed his jail sentence, we issued a show cause order to the parties on the issue of

mootness.

{¶3} “[W]here a criminal defendant, convicted of a misdemeanor, voluntarily

satisfies the judgment imposed upon him or her for that offense, an appeal from the

conviction is moot unless the defendant has offered evidence from which an inference

can be drawn that he or she will suffer some collateral legal disability or loss of civil rights

stemming from that conviction.” (Emphasis sic.) State v. Golston, 71 Ohio St.3d 224,

226, 643 N.E.2d 109 (1994), citing State v. Wilson, 41 Ohio St.2d 236, 325 N.E.2d 236

(1975) and State v. Berndt, 29 Ohio St.3d 3, 504 N.E.2d 712 (1987). “[I]t is reversible

error for an appellate court to consider the merits of an appeal that has become moot

after the defendant has voluntarily satisfied the sentence[.]” Cleveland Hts. v. Lewis, 129

Ohio St.3d 389, 2011-Ohio-2673, 953 N.E.2d 278, ¶ 18, citing Berndt at 4.

{¶4} Appellant contends his appeal is not moot because he did not serve his

sentence voluntarily; he may be ineligible for future government aid or housing programs;

and he has outstanding court costs. The state of Ohio does not dispute the issue of court

costs, and we agree this alone is sufficient to save the appeal from mootness, despite

appellant’s completion of the jail sentence. See, e.g., State v. Ruley, 2d Dist. Miami No.

2017-CA-10, 2018-Ohio-3201, ¶ 10, citing State v. Laster, 2d Dist. Montgomery No.

25019, 2013-Ohio-621, ¶ 3, fn. 1 (concluding unpaid court costs is sufficient); also State

v. Sullivan, 11th Dist. Lake Nos. 2019-L-143 & 2019-L-144, 2020-Ohio-1439, ¶ 14

(concluding unpaid fines and court costs are sufficient).

{¶5} We proceed to the merits of the appeal, wherein appellant advances three

assignments of error:

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 [1.] The trial court violated the defendant-appellant’s
constitutional right to effective representation as guaranteed
by the Sixth and Fourteenth Amendments to the United States
Constitution and Section 10, Article 1 of the Ohio Constitution.

[2.] The trial court erred when it allowed testimony of an
incompetent witness in violation of the defendant-appellant’s
due process rights guaranteed by Article 1, Section 10 of the
Ohio Constitution and the Fifth and Fourteenth Amendments
to the United States Constitution.

[3.] The trial court erred to the prejudice of the defendant-
appellant when it returned a verdict of guilty against the
manifest weight of the evidence.

{¶6} Appellant first argues the trial court erred when it allowed him to proceed in

representing himself at the bench trial without obtaining a voluntary, knowing, and

intelligent waiver of counsel.

{¶7} “The Sixth Amendment, as made applicable to the states by the Fourteenth

Amendment, guarantees that a defendant in a state criminal trial has an independent

constitutional right of self-representation and that he may proceed to defend himself

without counsel when he voluntarily, and knowingly and intelligently elects to do so.”

State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph one of the

syllabus, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

“In order to establish an effective waiver of right to counsel, the trial court must make

sufficient inquiry to determine whether defendant fully understands and intelligently

relinquishes that right.” Gibson at paragraph two of the syllabus. “Absent a knowing and

intelligent waiver, no person may be imprisoned for any offense, whether classified as

petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” State

v. Wellman, 37 Ohio St.2d 162, 309 N.E.2d 915 (1974), paragraph one of the syllabus,

citing Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.E.2d 530 (1972).

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 {¶8} Appellant’s conviction constitutes a petty offense because the maximum

term of confinement for a first-degree misdemeanor is 180 days. See Crim.R. 2(D) and

(C); R.C. 2929.24(A)(1).

{¶9} Crim.R. 44(B), counsel in petty offenses, states, “[w]hen a defendant

charged with a petty offense is unable to obtain counsel, no sentence of confinement may

be imposed upon the defendant, unless after being fully advised by the court, the

defendant knowingly, intelligently, and voluntarily waives assignment of counsel.”

Further, Crim.R. 44(C), waiver of counsel, requires that all waivers of counsel in petty

offense cases “shall be in open court and the advice and waiver shall be recorded as

provided in Rule 22,” i.e., via “shorthand, or stenotype, or by any other adequate

mechanical, electronic or video recording device.” Crim.R. 22.

{¶10} “If an unrepresented defendant has been convicted and sentenced to jail

for a petty offense and that defendant did not execute a valid waiver of the right to counsel,

an appropriate course of action for an appellate court to take is simply to vacate any term

of imprisonment, while affirming the conviction itself along with any associated fine.”

State v. Boughner, 11th Dist. Geauga No. 98-G-2161, 1999 WL 1297606, *10 (Dec. 17,

1999), citing Argersinger, 407 U.S. 25, and Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158,

59 L.Ed.2d 383 (1979); accord State v. Ross, 2017-Ohio-709, 86 N.E.3d 44, ¶ 25 (11th

Dist.), citing State v. Mogul, 11th Dist. Trumbull No. 2003-T-0178, 2006-Ohio-1873, ¶ 26

(“Where a defendant has been convicted of a petty offense without counsel, and absent

a valid waiver of counsel, any jail sentence must be vacated although the conviction itself

still stands.”). “The reason for this is that ‘the right to appointed counsel under the Sixth

and Fourteenth Amendments in state criminal proceedings is limited to cases that lead to

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actual imprisonment. Consequently, by vacating any term of confinement imposed on an

unrepresented misdemeanant, any potential violation of the constitutional right to counsel

is thereby eradicated.’” (Emphasis sic.) Ross at ¶ 25, quoting Boughner at *10, citing

State v. Brandon, 45 Ohio St.3d 85, 86, 543 N.E.2d 501 (1989).

{¶11} Therefore, given that appellant has already served his 180-day jail

sentence, there is no relief we can provide for a potential violation of his constitutional

right to counsel, and the issue has been rendered moot. See State v. Edmonds, 2d Dist.

Montgomery Nos. 24155 & 24156, 2011-Ohio-1282, ¶ 9 (concluding a challenge to the

waiver of counsel was moot after defendant had served the full jail term for a petty

offense); see also Ross at ¶ 26, citing State v. Adams, 8th Dist. Cuyahoga No. 85267,

2005-Ohio-3837, ¶ 5 (concluding a challenge to the waiver of counsel was moot after

defendant’s 30-day suspended sentence and term of probation for a petty offense had

expired).

{¶12} The first assigned error is without merit.

{¶13} Appellant next argues the trial court erred when it allowed Brian McCauley,

admittedly diagnosed with paranoid schizophrenia, to testify over appellant’s challenge to

his competency.

{¶14} Evidence Rule 601, the general rule of competency, provides in pertinent

part as follows:

(A) General Rule. Every person is competent to be a witness
except as otherwise provided in these rules.

(B) Disqualification of Witness in General. A person is
disqualified to testify as a witness when the court determines
that the person is:

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 (1) Incapable of expressing himself or herself concerning the
matter as to be understood, either directly or through
interpretation by one who can understand him or her; or

(2) Incapable of understanding the duty of a witness to tell the
truth.

{¶15} “‘A person, who is able to correctly state matters which have come within

his perception with respect to the issues involved and appreciates and understands the

nature and obligation of an oath, is a competent witness notwithstanding some

unsoundness of mind.’” State v. Bradley, 42 Ohio St.3d 136, 140-141, 538 N.E.2d 373

(1989), quoting State v. Wildman, 145 Ohio St. 379, 61 N.E.2d 790 (1945), paragraph

three of the syllabus. “Moreover, competency under Evid.R. 601 contemplates several

characteristics: (1) the individual must have the ability to receive accurate impressions of

fact; (2) the individual must be able to accurately recollect those impressions; and (3) the

individual must be able to relate those impressions truthfully.” State v. Conner, 8th Dist.

Cuyahoga No. 99557, 2014-Ohio-601, ¶ 34, citing State v. Grahek, 8th Dist. Cuyahoga

No. 81443, 2003-Ohio-2650, ¶ 25, citing State v. Said, 71 Ohio St.3d 473, 644 N.E.2d

337 (1994).

{¶16} A trial court generally has broad discretion to determine whether a witness

is competent to testify. State v. Clark, 71 Ohio St.3d 466, 469, 644 N.E.2d 331 (1994).

“Absent an abuse of discretion, competency determinations of the trial judge will not be

disturbed on appeal.” (Citations omitted.) Id. at 469; see also State v. Moreland, 50 Ohio

St.3d 58, 61, 522 N.E.2d 894 (1990) (defining abuse of discretion as an “unreasonable,

arbitrary or unconscionable” decision).

{¶17} In response to appellant’s challenge to Mr. McCauley’s competency, the

trial court engaged in the following colloquy with Mr. McCauley:

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 THE COURT: Mr. McCauley, do you know right from wrong?

THE WITNESS: Yes.

THE COURT: Okay. So give me an example of something
that’s wrong.

THE WITNESS: Wrong would be going into a store and not
paying for nothing and walking out with it.

THE COURT: Okay. And do you understand that you’re
supposed to tell the truth today?

***

THE WITNESS: Yes.

THE COURT: And anything with regards to your physical
condition that would allow you not to tell the truth? * * * Any
concern with going forward today and testifying to the truth of
the matter today?

THE WITNESS: No.

THE COURT: Okay. You took an oath, you’re willing to abide
by that oath; is that correct?

THE WITNESS: Yes.

THE COURT: You understood that?

THE WITNESS: Yes.

Mr. McCauley’s responses to these questions demonstrate that it was not an abuse of

discretion for the trial court to permit him to testify.

{¶18} Appellant takes issue with the substance of Mr. McCauley’s testimony. For

instance, Mr. McCauley indicated he only vaguely remembered the incident at issue,

which he attributed to medication he is prescribed for his mental illness; he read into

evidence, without objection, the written statement he gave the police the night of the

incident; and he admitted on cross-examination that he sometimes talks to people who

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are not there. Appellant contends Mr. McCauley’s lack of memory prevented him from

effectively cross-examining him as to the incident. Appellant did cross-examine Mr.

McCauley, however, as to his faulty recollection and the parameters of his mental illness.

Thus, appellant’s arguments as to the substance of the testimony relate not to Mr.

McCauley’s competency to testify, but to his credibility and the weight his testimony

should be afforded, arguments properly addressed in the final assigned error.

{¶19} The second assigned error is without merit.

{¶20} Finally, appellant argues his conviction is against the manifest weight of the

evidence because it is not supported by competent, credible evidence proving his guilt

beyond a reasonable doubt.

Weight of the evidence concerns “the inclination of the greater
amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other. It indicates clearly to
the jury that the party having the burden of proof will be
entitled to their verdict, if, on weighing the evidence in their
minds, they shall find the greater amount of credible evidence
sustains the issue which is to be established before them.”

(Emphasis sic.) State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997), quoting Black’s Law Dictionary 1594 (6th Ed.1990).

{¶21} “When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.”

Id. “‘The court, reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in resolving

conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest

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miscarriage of justice that the conviction must be reversed and a new trial ordered.” Id.,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶22} “The [factfinder] is the sole judge of the weight of the evidence and the

credibility of the witnesses. It may believe or disbelieve any witness or accept part of

what a witness says and reject the rest. In reaching its verdict, the [factfinder] should

consider the demeanor of the witness and the manner in which he testifies, his connection

or relationship with the prosecution or the defendant, and his interest, if any, in the

outcome.” State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); accord State v.

Miller, 4th Dist. Hocking No. 18CA3, 2019-Ohio-92, ¶ 28 (“The trier of fact is free to believe

all, part, or none of the testimony of any witness, and we defer to the trier of fact on

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.” (Citations omitted.)) Therefore, because “the weight to be given

the evidence and the credibility of the witnesses are primarily for the trier of the facts,”

“‘the discretionary power to grant a new trial should be exercised only in the exceptional

case in which the evidence weighs heavily against the conviction.’” State v. DeHass, 10

Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus; Thompkins at

376, quoting Martin at 175.

{¶23} The victim initially reported that she was assaulted by two people—

appellant and Heather Kline. Officer William Sickles testified that appellant was the only

individual charged because a corroborating witness, Brian McCauley, only witnessed

appellant assault the victim. Mr. McCauley testified that he remembered the police came

to his house, that he spoke with them for a while, and that the victim was staying with him

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at that time. The prosecutor attempted to refresh Mr. McCauley’s recollection with the

written statement he gave to the police the night of the alleged assault, but he was only

able to recall that the incident occurred during the day and that the victim was “being

bothered in the house.” The prosecutor then asked him to read the written statement into

the record, without objection:

I, Brian McCauley, witnessed a black male with a bandanna
over his face attack [the alleged victim] at my house, [address
redacted], July 13, 2020. I witnessed at that time Heather
Klein walk in and grab something while (words indistinct)
pushed [the alleged victim].
When asked whether he recognized the person who attacked the alleged victim, Mr.

McCauley testified that he “knew Eric Landingham” before the incident and that,

according to his written statement, he recognized Landingham that night as the person

who attacked the alleged victim, but that he did not remember it at the time of his

testimony.

{¶24} Notwithstanding the obvious issues of credibility and recollection with

respect to Mr. McCauley, his testimony is unnecessary to satisfy the manifest weight of

the evidence standard. The victim testified that appellant knocked on the door of Mr.

McCauley’s home, where she was living at the time, and when she opened the door,

appellant knocked her to the ground and proceeded to hit her in the face and neck. She

also testified that Heather Klein walked in and proceeded to the bedroom, then kicked her

before the two individuals left. She testified that after they left, cash was missing from

her bedroom. The victim was taken to the hospital as a result of the assault. She testified

that she was “pretty sure my nose was broken because I had black eyes (words indistinct)

it was swelled up for like two weeks straight.” She also had a concussion. The victim

knew appellant before the assault and positively identified him as her assailant that
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evening and at trial; she also testified that he spoke to her during the assault. The victim

further testified that appellant apologized to her sometime after the incident, saying that

he felt bad it happened and was on drugs at the time.

{¶25} Officer Sickles testified that he responded to the call, met with the victim,

who was “crying” and “hysteric,” and that she was later taken to the hospital. The officer

further testified that the victim’s trial testimony was consistent with the statement she gave

following the incident and that Mr. McCauley “appeared normal” and was able to give a

“clear and concise account.”

{¶26} This is not the exceptional case in which the evidence weighs heavily

against the conviction. Appellant’s assault conviction is not against the manifest weight

of the evidence.

{¶27} The third assigned error is without merit.

{¶28} The judgment of the Painesville Municipal Court is affirmed.

CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.

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