2006 Ohio 6348 | Ohio Ct. App. | 2006
{¶ 2} McCrory's trial occurred on September 13, 2005. McCrory did not retain counsel. Prior to trial, the court inquired of McCrory "why don't you have an attorney?"
{¶ 3} "McCrory: I didn't think I needed one.
{¶ 4} "The Court: You didn't think you needed one?
{¶ 5} "McCrory: No.
{¶ 6} "The Court: O.K. It's your choice though? It's not because you can't afford one?
{¶ 7} "McCrory: Yes, ma'am.
{¶ 8} "The Court: O.K. Have you ever participated in a trial before?
{¶ 9} "McCrory: No, ma'am.
{¶ 10} "The Court: Well, let me just explain how it's going to proceed."
{¶ 11} Thereupon, the court gave McCrory a brief description of trial procedure.
{¶ 12} The first witness to testify at trial was Deputy Brett Psenicka of the Portage County Sheriff's Office. Deputy Psenicka testified that, on the evening of June 14, 2005, he was dispatched to the "Calcic" residence, on Infirmary Road, Ravenna, Ohio. There, Deputy Psenicka met Elizabeth A. Ziegler. Deputy Psenicka described Ziegler as "fairly bloody, disheveled. Looked like she'd been crying. She had abrasions to knees, legs, arms. Bloody face." Deputy Psenicka took photographs of Ziegler which were admitted at trial.
{¶ 13} According to Deputy Psenicka, Ziegler told him that she had been assaulted earlier by McCrory and her boyfriend, Donald Petit. Ziegler told Psenicka that she had been at McCrory's residence on Knowlton Road in Windham Township. McCrory and Petit had punched, kicked, and slapped her while forcing her into a van. McCrory and Petit then drove her to the Calcic residence where they dropped her off.
{¶ 14} Ziegler testified that she did not wish to press charges against McCrory. Ziegler testified that she was drunk at the time of the incident and "out of control." Ziegler testified that Petit caused most of her injuries, but that McCrory did "swing back" and hit her in the mouth twice while they were driving her to the Calcic's residence.
{¶ 15} McCrory denied ever hitting Ziegler. McCrory testified that Ziegler and Petit had been wrestling and that Petit had forced her in the back of his car. McCrory wanted to take Ziegler to her friend's house because Ziegler was drunk and causing a disturbance. McCrory did not recall seeing any injuries on Ziegler's face that evening.
{¶ 16} The court found McCrory guilty of Assault, a misdemeanor of the first degree in violation of R.C.
{¶ 17} McCrory timely appeals and raises the following assignments of error.
{¶ 18} "[1.] The Court committed reversible error when it allowed Appellant to proceed without counsel without making sufficient inquiry to determine whether he knowingly, voluntarily and intelligently waived his right to counsel, in violation of the
{¶ 19} "[2.] The Court committed reversible error when it entered a conviction that was not supported by the manifest weight of the evidence, in violation of the
{¶ 20} "[3.] The Court committed reversible error when it convicted Appellant without sufficient evidence upon which it could reasonably conclude that Appellant had committed all elements of the crime defined at R.C.
{¶ 21} Under the first assignment of error, McCrory argues the court erred by allowing him to proceed with his defense pro se without first inquiring whether his waiver of that right was knowing and intelligent.1 We agree.
{¶ 22} "The
{¶ 23} "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,
{¶ 24} Pursuant to Criminal Rule 44(C), "[w]aiver of counsel shall be in open court and the advice and waiver shall be recorded as provided in Rule 22." Criminal Rule 22 provides that waiver of counsel "may be recorded in shorthand, or stenotype, or by any other adequate mechanical, electronic or video recording device."
{¶ 25} Construing these precedents and rules, this court has recognized that "a trial court is obligated," that is, has an affirmative duty, "to engage in a dialog with the defendant which will inform her of the nature of the charged offenses, any 'included' offenses, the range of possible punishments, any possible defenses, and any other facts which are essential for a total understanding of the situation." State v. Mogul, 11th Dist. No. 2003-T-0178,
{¶ 26} In the present case, the trial court did not engage in any dialog with McCrory regarding the nature of the charged offense, the range of possible punishments, possible defenses, or any other matters that would apprise McCrory "of the inherent difficulties in attempting to represent [him]self throughout a criminal case." Id. The trial court's dialog with McCrory was wholly limited to whether he was able to obtain counsel. This colloquy is inadequate to establish that McCrory's waiver of counsel was knowing and intelligent. Cf. State v.Boughner (Dec. 17, 1999), 11th Dist. No. 98-G-2161, 1999 Ohio App. LEXIS 6116, at *20-*21 ("a waiver of counsel is knowing, intelligent, and voluntary only when the defendant is made aware of the dangers and disadvantages of self-representation such that the record establishes that the defendant knowingly made the choice with his eyes wide open").
{¶ 27} The State argues that the trial court is only required to obtain a knowing, intelligent, and voluntary waiver of counsel when the defendant is "unable to obtain counsel." The State relies on the "plain language" of Criminal Rule 44(B), which provides that, "[w]hen a defendant charged with a petty offense is unable to obtain counsel, no sentence of confinement may be imposed upon him, unless after being fully advised by the court, he knowingly, intelligently, and voluntarily waives assignment of counsel."
{¶ 28} The State's reliance of Criminal Rule 44(B) is misplaced. Although this provision is concerned specifically with defendants "unable to obtain counsel," the rights to counsel and to self-representation embodied in the
{¶ 29} The first assignment of error has merit. Where a defendant has been convicted of a petty offense without the benefit of counsel and without executing a valid waiver of counsel, any sentence of confinement must be vacated although the conviction itself is affirmed.Mogul,
{¶ 30} The reason is that "the right to appointed counsel under the
{¶ 31} Accordingly, McCrory's one hundred eighty day suspended sentence is vacated. See Alabama v. Shelton (2002),
{¶ 32} McCrory argues under his second assignment of error that his conviction is against the manifest weight of the evidence. In order to convict McCrory of Assault, the State was required to prove, beyond a reasonable doubt, that McCrory "knowingly cause[d] or attempt[ed] to cause physical harm to another." R.C.
{¶ 33} The argument that a conviction is against the manifest weight of the evidence raises a factual issue regarding the credibility of the State's evidence, that is, "the inclination of the greater amount ofcredible evidence." State v. Thompkins,
{¶ 34} Generally, the weight to be given to the evidence and the credibility of the witnesses is primarily for the trier of fact to determine. State v. Thomas (1982),
{¶ 35} McCrory argues that Ziegler's testimony is completely lacking in credibility. McCrory notes that Ziegler was admittedly drunk and that she had no "independent recollection of which injuries were caused by whom, or where they were caused." We disagree.
{¶ 36} Ziegler testified, without doubt or uncertainty, that McCrory struck her in the mouth. Ziegler was uncertain about the injury McCrory may have caused her mouth, testifying that McCrory "maybe" caused "part of it [the bloody mouth]." However, it is not necessary that Ziegler identify a specific injury, since McCrory could be convicted for attempting to cause harm by striking her.
{¶ 37} Deputy Psenicka and the photographic evidence established that Ziegler had a bloody mouth. Ziegler testified that McCrory struck her twice in the mouth. Contrary to this competent and credible evidence that McCrory caused or attempted to cause Ziegler physical harm is McCrory's denial that he ever struck Ziegler. Where there is conflicting competent and credible evidence regarding the facts of a case, the appellate court will defer to the determination made by the trier of fact. See, e.g., State v. Cooper, 11th Dist. No. 2005-A-0025,
{¶ 38} McCrory's second assignment of error is without merit.
{¶ 39} McCrory argues under his third assignment of error that there was insufficient evidence to support his conviction. "We have consistently held that an appellant must move for a Crim.R. 29 motion for acquittal at trial in order to preserve the right to appeal on the basis of the sufficiency of the evidence." State v. Beesler, 11th Dist. No. 2002-A-0001, 2003-Ohio-2815, at ¶ 21 (citations omitted). McCrory failed to do so and, therefore, has waived the right to raise this argument.
{¶ 40} The determination that McCrory's conviction is not against the manifest weight of the evidence, however, necessarily rests on the existence of sufficient evidence to support the conviction. Cf.Thompkins,
{¶ 41} The third assignment of error is without merit.
{¶ 42} For the foregoing reasons, McCrory's first assignment of error has merit. McCrory's 180-day suspended sentence is vacated. McCrory's remaining assignments of error are meritless. Accordingly, McCrory's conviction for Assault is affirmed.
