[Cite as State v. Gibson, 2014-Ohio-1169.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :   Case No. 2013CA00175
                                               :
REGINALD OCTAVE GIBSON                         :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas, Case No. 2013CR0120



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            March 17, 2014




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

JOHN D. FERRERO, JR.                               EUGENE O’BYRNE
STARK COUNTY PROSECUTOR                            101 Central Plaza South
RENEE M. WATSON                                    Canton, OH 44702
110 Central Plaza South, Ste. 510
Canton, OH 44702-1413
Stark County, Case No. 2013CA00175                                                       2

Delaney, J.

        {¶1} Appellant Reginald Octave Gibson appeals from the August 12, 2013

Judgment Entry of the Stark County Court of Common Pleas. Appellee is the State of

Ohio.

                          FACTS AND PROCEDURAL HISTORY

        {¶2} Darlene Quarterman and appellant have known each other for 6 years.

Prior to January 12, 2013, they had not seen each other for about a month when they

“ran into each other” and Quarterman asked appellant about her belongings that were

still at his home. Appellant suggested they get together later to discuss moving her

things into storage. Quarterman was now involved in a new relationship and her new

friend was present when this conversation took place.

        {¶3} On January 13, 2013, Quarterman rented a room at the Perry Inn, located

at 4531 Lincoln Way East, Perry Township, Massillon, Ohio, for two days. She and

appellant were at the motel together in Room 122 drinking with another resident and

listening to music. The other resident left and Quarterman and appellant decided to go

to the nearby Sheetz gas station to buy beer. On the walk back from Sheetz to the

motel, they talked about Quarterman “moving on” in her new relationship. Quarterman

testified within five or ten minutes of arriving back in the motel room, appellant began to

repeatedly hit her in the face with his fist.

        {¶4} Quarterman testified appellant continued “whaling on [her], hitting [her] in

the face” for ten or fifteen minutes while she begged him to stop. She tasted blood and

felt blood coming from her eye. Appellant told her to take her clothes off and she

complied because his fist was drawn back. He continued to strike her repeatedly.
Stark County, Case No. 2013CA00175                                                   3


       {¶5} At one point, Quarterman said she tried to leave the room while appellant

was in the bathroom. She ran out of the motel room naked with her clothes in her hand

and knocked on another door. Appellant came out and dragged her back into the room

by the braids in her hair.

       {¶6} Finally, appellant told her to lie down and be quiet. When the beating

stopped and appellant told her to lie still, Quarterman thought he might fall asleep.

When he seemed to be asleep, Quarterman ran from the room to the motel office

clothed but without shoes and the desk clerk called 911 at 2:52 a.m.

       {¶7} Two officers from the Perry Township Police Department responded with

paramedics. They found Quarterman in the motel office sitting on a stool; she appeared

“shaken up” and was crying and scared. She had obvious significant injuries: her left

eye was swollen shut with a large bleeding laceration on it and her nose was swollen.

The officers asked what happened and she told them her ex-boyfriend struck her

repeatedly in the face with a closed fist.   The officers photographed Quarterman’s

injuries before she was transported by paramedics.

       {¶8} The officers found the door of Room 122 ajar and appellant was asleep in

the bed. Both officers noticed a large amount of blood throughout the room, on the

floor, on a pair of shoes, in the bathroom, and on a wash rag in the sink. The officers

woke appellant and pulled the covers off him; as he sat up, they discovered he was

naked and there was blood underneath him on the sheets of the bed and the

pillowcases.

       {¶9} The officers told appellant why they were there and appellant stated he

didn’t know Quarterman was injured or how it happened; when he went to sleep, she
Stark County, Case No. 2013CA00175                                                     4


was fine. Officers observed a small spot of dried blood on appellant’s left cheek and a

small amount of blood on the palms of both hands; he didn’t know how it got there and

had no injuries. The officers took photos of the scene and of appellant.

      {¶10} Appellant refused to answer any further questions and was arrested.

      {¶11} In the meantime, paramedics transported Quarterman to Aultman Hospital

by ambulance.    They were concerned for her head injury because although she was

alert and oriented at first, she became lethargic and could not tolerate the weight of an

ice pack on her eye. Quarterman was determined to have fractured orbital bones and a

broken nose, requiring surgery.

      {¶12} Appellant was charged by indictment with one count of felonious assault

pursuant to R.C. 2903.11(A)(1) and one count of abduction pursuant to R.C.

2905.02(A)(2). He entered pleas of not guilty and hired two attorneys in succession.

      {¶13} On July 23, 2013, the trial court held a hearing on the second attorney’s

motion to withdraw and appellant’s decision to proceed with trial pro se. The trial was

scheduled to begin a week later, on July 30, 2013. The trial court engaged in a lengthy

colloquy with appellant, discussing his reasons for representing himself and explaining

the implications of doing so. The trial court also appointed standby counsel.

      {¶14} The matter proceeded to jury trial as scheduled and appellant was found

guilty as charged.   He was sentenced to a prison term of eight years on Count I,

felonious assault, concurrent with a term of 36 months on Count II, abduction.

      {¶15} Appellant now appeals from the judgment entry of his conviction and

sentence.

      {¶16} Appellant raises three assignments of error:
Stark County, Case No. 2013CA00175                                                       5


                               ASSIGNMENTS OF ERROR

       {¶17} “I. THE TRIAL COURT ERRED BY ALLOWING APPELLANT TO WAIVE

HIS RIGHT TO COUNSEL, AS APPELLANT’S WAIVER WAS NOT KNOWINGLY,

INTELLIGENTLY, AND VOLUNTARY (sic).”

       {¶18} “II. THE TRIAL COURT ERRED BY PUNISHING THE DEFENDANT FOR

EXERCISING HIS CONSTITUTIONAL RIGHT TO DEFEND HIMSELF AT A JURY

TRIAL BY SENTENCING APPELLANT TO THE MAXIMUM SENTENCE FOR THE

OFFENSE OF FELONIOUS ASSAULT.”

       {¶19} “III. THE JURY’S FINDING OF GUILTY WAS NOT SUPPORTED BY

SUFFICIENT EVIDENCE.”

                                         ANALYSIS

                                               I.

       {¶20} In his first assignment of error, appellant argues he did not knowingly,

intelligently, and voluntarily waive his right to counsel. We disagree.

       {¶21} The Sixth Amendment to the United States Constitution and Section 10,

Article I of the Ohio Constitution provides that a criminal defendant has a right to

counsel. Crim.R. 44(A) provides that a defendant is entitled to counsel “unless the

defendant, after being fully advised of his right to assigned counsel, knowingly,

intelligently, and voluntarily waives his right to counsel.”

       {¶22} A criminal defendant also has the constitutional right to waive counsel and

to represent himself at trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45

L.Ed.2d 562 (1975). However, “the Constitution * * * require[s] that any waiver of the

right to counsel be knowing, voluntary, and intelligent * * *.” Iowa v. Tovar, 541 U.S. 77,
Stark County, Case No. 2013CA00175                                                           6


87-88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004). “In order to establish an effective

waiver of [the] right to counsel, the trial court must make sufficient inquiry to determine

whether defendant fully understands and intelligently relinquishes that right.” State v.

Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph two of the syllabus. The

defendant must make an intelligent and voluntary waiver with the knowledge he will

have to represent himself, and that there are dangers inherent in self-representation.

State v. Ebersole, 107 Ohio App.3d 288, 293, 668 N.E.2d 934 (3rd Dist.1995), citing

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

       {¶23} In Gibson, supra, the Ohio Supreme Court applied the test set forth in Von

Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), which established

the requirements for a sufficient pretrial inquiry by the trial court into a waiver of counsel:

              To be valid such waiver must be made with an apprehension of the

              nature of the charges, the statutory offenses included within them,

              the range of allowable punishments thereunder, possible defenses

              to the charges and circumstances in mitigation thereof, and all

              other facts essential to a broad understanding of the whole matter.

              A judge can make certain that an accused's professed waiver of

              counsel is understandingly and wisely made only from a

              penetrating     and    comprehensive       examination     of   all   the

              circumstances under which such a plea is tendered.

              State v. Gibson, 45 Ohio St.2d 366, 377, 345 N.E.2d 399 (1976).

       {¶24} In the instant case, the record reveals the trial court met and exceeded

the minimum standard required for accepting a valid waiver of counsel. The trial court
Stark County, Case No. 2013CA00175                                                         7


conducted a lengthy hearing for the specific purpose of weighing counsel’s motion to

withdraw and appellant’s decision to represent himself. The record reveals this hearing

was not cursory; the trial court went to great lengths to urge appellant to reconsider.

The trial court discussed the nature of the charges, the statutory offenses included

within them, and the range of allowable punishments; the court advised appellant of

possible defenses such as alibi or self-defense; finally, the trial court advised appellant

of the myriad ways in which he would be disadvantaged by representing himself, not the

least of which was his lack of access to a law library.1 Finally, the trial court appointed

standby counsel to assist appellant in preparation for trial, including filing of various

discovery materials, and to and remain throughout trial and sentencing.

       {¶25} The trial court did not err in permitting appellant to represent himself.

Appellant’s waiver of counsel was knowing, intelligent, and voluntary, and appellant’s

first assignment of error is overruled.

                                                 II.

       {¶26} In his second assignment of error, appellant contends the trial court

punished him for exercising his constitutional right to jury trial by imposing a maximum

sentence upon Count I, felonious assault. We disagree.

       {¶27} It is axiomatic that a defendant should never be punished for exercising

his right to trial or refusing to enter into a plea agreement. State v. O'Dell, 45 Ohio St.3d

140, 147, 543 N.E.2d 1220 (1989). The imposition of a harsher punishment on a



1
 A prisoner's right of access to the courts extends only to direct appeals, habeas corpus
applications, and civil rights claims challenging the conditions of confinement. See
Lewis v. Casey, 518 U.S. 343, 355, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Thaddeus-
X v. Blatter, 175 F.3d 378, 391 (6th Cir.1999) (en banc). Appellant’s claims here are
unrelated to his right of access to the courts.
Stark County, Case No. 2013CA00175                                                         8


defendant for exercising his rights would impair the constitutional right to a trial by

creating a chilling effect upon a defendant's ability to exercise his constitutional right.

State v. Scalf, 126 Ohio App.3d 614, 621, 710 N.E.2d 1206 (8th Dist.1998).

Accordingly, a trial court may not augment a sentence because a defendant chooses to

force the government to prove his guilt, “no matter how overwhelming the evidence of

[defendant's] guilt.” Id.

       {¶28} The trial court must avoid the appearance of penalizing a defendant for

going to trial. In State v. Morris, 159 Ohio App.3d 775, 2005–Ohio–962, 825 N.E.2d

637 (8th Dist.2005), the court observed, “[If] the court makes statements that ‘give rise

to the inference that [the] defendant may have been punished more severely because of

his assertion of the right to trial by jury,’ we must vacate the sentence * * * unless the

record also contains an unequivocal statement that the defendant's decision to go to

trial was not considered in imposing the sentence.”Id. at ¶ 13, quoting State v. Hobbs,

8th Dist. Cuyahoga No. 81533, 2003–Ohio–4338, ¶ 71. “‘Absent such an unequivocal

statement, the sentence will be reversed and the matter remanded for resentencing.’”

Morris, 2005-Ohio-962 at ¶ 13, quoting Scalf, supra, 126 Ohio App.3d at 621.

       {¶29} Appellant here points to no evidence in the record establishing his

sentence was in retaliation for trying his case. During the hearing on counsel’s motion

to withdraw and appellant’s decision to represent himself, appellant asked for

explanation of the plea offer that appellee made to both of his previous attorneys;

appellant believed the offer to be a prison term of six months. Appellee explained in

fact the offer was a four-year prison term with the possibility of judicial release after six

months into SRCCC. It is clear from the record this offer was extended by appellee
Stark County, Case No. 2013CA00175                                                         9


without the trial court’s involvement in plea negotiations.      The trial court, at length,

merely clarified whether appellant wanted to accept the plea offer, and he unequivocally

stated no.

       {¶30} Upon being found guilty by jury, appellant was sentenced to an aggregate

prison term of 8 years. He contends the greater penalty constitutes punishment for his

decision to proceed to trial. He points to no statement by the trial court giving rise to the

inference the sentence was imposed as punishment for going to trial, however. In fact,

the record indicates the trial court made no promise to appellant whatsoever if he

decided to enter a plea instead of proceeding to trial. There is no indication the trial

court was a participant in the earlier plea negotiations. The trial court is not bound by a

recommendation proffered by the state. State v. Brown, 5th Dist. Stark No. 2007 CA

00095, 2008-Ohio-880, ¶ 78, citing State v. Kitzler, 3rd Dist. Wyandot No. 16-02-06,

2002-Ohio-5253; Akron v. Ragsdale, 61 Ohio App.2d 107, 109, 399 N.E.2d 119 (9th

Dist.1978).

       {¶31} There is no evidence the trial court punished appellant for exercising his

right to a jury trial in sentencing him to a prison term of 8 years. We note appellee

requested a consecutive term of 36 months for the abduction count, but the trial court

instead sentenced appellant to concurrent terms. Appellant’s second assignment of

error is therefore overruled.

                                                III.

       {¶32} In his third assignment of error, appellant argues his convictions upon one

count of felonious assault and one count of abduction are not supported by sufficient

evidence. We disagree.
Stark County, Case No. 2013CA00175                                                        10


       {¶33} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio

St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard

of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which

the Ohio Supreme Court held, “An appellate court’s function when reviewing the

sufficiency of the evidence to support a criminal conviction is to examine the evidence

admitted at trial to determine whether such evidence, if believed, would convince the

average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry

is whether, after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond

a reasonable doubt.”

       {¶34} Appellant was convicted of one count of felonious assault pursuant to R.C.

2903.11(A)(1), which states in pertinent part, “No person shall knowingly cause serious

physical harm to another* * *.”      He was also convicted of one count of abduction

pursuant to R.C. 2905.02(A)(2), which states, “No person, without privilege to do so,

shall * * * [b]y force or threat, restrain the liberty of another person under circumstances

that create a risk of physical harm to the victim or place the other person in fear[.]”

       {¶35} Appellee’s evidence consisted, in part, of the testimony of the victim,

Darlene Quarterman, who described appellant’s assault upon her with his fists.

Quarterman’s orbital bones and nose were fractured, requiring surgery. When she

attempted to flee from the motel room, appellant dragged her back into the room by her

hair and she was unable to leave until he fell asleep.            Responding officers and
Stark County, Case No. 2013CA00175                                                      11


paramedics found Quarterman visibly shaken, scared, and with apparent significant

facial injuries.

        {¶36} Appellant argues Quarterman’s testimony alone is insufficient evidence to

establish his guilt because the police did not seek witnesses to the assault and did not

confirm the blood in the motel room was that of the victim. Nor was any biological

evidence collected and submitted for testing such as DNA testing. He further argues

the victim’s testimony alone is insufficient evidence to convict him of abduction and

there is no evidence the victim suffered physical harm as a result of his alleged action of

dragging her back into the motel room by her hair. We disagree.

        {¶37} Appellant’s argument is premised upon a misunderstanding of our

evaluation of the sufficiency of the evidence. In Thompkins, supra, 78 Ohio St.3d at

390, the Ohio Supreme Court reiterated our standard of review for determining whether

the evidence sufficiently supports a criminal conviction: “A challenge to the sufficiency

of evidence supporting a conviction requires a court to determine whether the state has

met its burden of production at trial. On review for sufficiency, courts are to assess not

whether the state's evidence is to be believed, but whether, if believed, the evidence

against a defendant would support a conviction.”         It is axiomatic our inquiry into

sufficiency does not encompass the credibility of the witnesses, which is primarily for

the trier of fact to determine. State v. Yarbrough, 95 Ohio St.3d 227, 231, 2002-Ohio-

2126, 767 N.E.2d 216, ¶ 79. Instead, the Court emphasized that “[i]n essence,

sufficiency is a test of adequacy.” Thompkins, supra, at 386.

        {¶38} Here, appellant complains the police officers did not seek out the desk

clerk or potential witnesses in neighboring motel rooms; nor did they collect possibly
Stark County, Case No. 2013CA00175                                                       12


relevant evidence in the room. However, the issue in a sufficiency review concerns

whether the evidence, if believed, would support the conviction, not whether a witness's

testimony is credible. Having reviewed appellee’s evidence in its entirety, we find the

evidence presented, including the testimony of the victim, if believed by the trier of fact,

would support the guilty verdicts.

       {¶39} Appellant’s convictions are supported by sufficient evidence and his third

assignment of error is overruled.

                                      CONCLUSION

       {¶40} Appellant’s three assignments of error are overruled and the judgment of

the Stark County Court of Common Pleas is affirmed.

By: Delaney, J. and

Hoffman, P.J.

Baldwin, J., concur.
