[Cite as State v. Birinyi, 2011-Ohio-6257.]




          Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                 Nos. 95680 and 95681




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                      BRUCE BIRINYI
                                                    DEFENDANT-APPELLANT




                                 JUDGMENT:
                         AFFIRMED IN PART, REVERSED
                           IN PART, AND REMANDED



                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                             Case Nos. CR-531800 and 510803
                                     2


     BEFORE: Celebrezze, J., Boyle, P.J., and Keough, J.

    RELEASED AND JOURNALIZED:                 December 8, 2011
ATTORNEY FOR APPELLANT

Steve W. Canfil
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Nick Giegerich
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


ALSO LISTED

Bruce James Birinyi
Inmate No. 591-192
Marion Correctional Institution
940 Williamsport Road
Marion, Ohio 43301


FRANK D. CELEBREZZE, JR., J.:

     {¶ 1} Appellant, Bruce Birinyi, appeals his convictions for assault of a

peace officer, obstructing official business, resisting arrest, and criminal

nonsupport. After a thorough review of the record and relevant case law, we

affirm in part, and reverse and remand in part.
                                      3

      {¶ 2} On May 21, 2008, appellant was charged in Case No. CR-510803

with six counts of criminal nonsupport of dependants, in violation of R.C.

2919.21(B).

      {¶ 3} During a pretrial hearing, appellant expressed his desire to

represent himself during trial. At the conclusion of the hearing, appellant

signed a voluntary waiver of his right to counsel, dated September 8, 2008.

      {¶ 4} Prior to trial, the trial court granted the state’s motion to dismiss

Counts 1, 2, 3, and 4, which covered time periods from February 2002 through

March 2006.     Additionally, the trial court granted the state’s motion to

amend the dates contained in Counts 5 and 6. The dates were amended from

April 2006 through April 2008 to April 2005 through April 2007.

      {¶ 5} On March 2, 2009, the case was called to trial, but was continued

by the trial court on March 3, 2009 for a psychiatric evaluation of appellant

pursuant to R.C. 2945.371.       On March 5, 2009, the trial court found

appellant incompetent to represent himself and declared a mistrial.

      {¶ 6} Following the mistrial, appellant’s case was reassigned to a new

trial judge for retrial. On August 31, 2009, appellant was referred to the

psychiatric clinic for a second competency evaluation. On October 13, 2009,

the trial court reviewed the report of the psychiatric clinic and concluded that

appellant was competent to stand trial. The trial court permitted appellant

to proceed pro se with the assistance of attorney Charles Morgan.
                                      4

      {¶ 7} On November 30, 2009, appellant’s case was transferred to a

third trial judge upon agreement of the parties. The trial court accepted the

findings from the second psychiatric evaluation and found appellant

competent to stand trial and assist in his defense. During a pretrial hearing,

appellant was found in contempt of court when he refused to follow the order

of the trial judge and injured a deputy as the deputy attempted to remove

appellant from the courtroom. Attorney Morgan’s request to withdraw was

granted, and the third judge recused himself from the case; both were

witnesses to the confrontation that ensued between appellant and the deputy.

      {¶ 8} On December 4, 2009, as a result of the courtroom incident,

appellant was indicted in Case No. CR-531800 on charges of felonious assault

of a police officer, in violation of R.C. 2903.11(A); two counts of assault of a

peace officer, in violation of R.C. 2903.13(A); obstructing official business, in

violation of R.C. 2921.31(A); and resisting arrest, in violation of R.C.

2921.33(B).

      {¶ 9} Appellant’s two pending cases, CR-510803 and CR-531800, were

reassigned to a fourth trial judge, who accepted the previous findings of the

psychiatric clinic that found appellant competent. Based on the psychiatric

evaluation, the trial court permitted appellant to proceed pro se without the

assistance of counsel. On May 11, 2010, the trial court granted the state’s

motion to consolidate appellant’s pending cases.
                                        5

      {¶ 10} Appellant’s consolidated jury trial commenced on July 6, 2010.

On July 9, 2010, the jury found appellant guilty of two counts of assault on a

peace officer, obstructing official business, resisting arrest, and two counts of

criminal nonsupport.      Appellant was acquitted on the charge of felonious

assault of a police officer. At the sentencing hearing, the trial court imposed

a four and one-half-year term of imprisonment.

      {¶ 11} Appellant appeals, raising five assignments of error.1

                                Law and Analysis

                               Waiver of Counsel

      {¶ 12} In his first assignment of error, appellant argues that the trial

court erred by accepting his request to proceed pro se without first engaging

in a colloquy to ensure that his decision to waive his constitutional right to

counsel was made knowingly, voluntary, and intelligently.

      {¶ 13} Although a defendant may eloquently express a desire to

represent himself, a trial court must still satisfy certain parameters to ensure

that the defendant’s waiver of the constitutional right to counsel is made

knowingly, intelligently, and voluntarily. See State v. Thompson, Cuyahoga

App. No. 85483, 2005-Ohio-6126. In State v. Buchanan, Cuyahoga App. No.

80098, 2003-Ohio- 6851, this court reiterated the well-established parameters



      1    Appellant’s assignments of error are contained in the appendix to this
opinion.
                                      6

and the significance of a defendant’s decision to waive his constitutional right

to counsel and represent himself as follows:

      {¶ 14} “‘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 (1976), 45 Ohio

St.2d 366, 345 N.E.2d 399, paragraph one of the syllabus, citing Faretta v.

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

‘courts are to indulge in every reasonable presumption against the waiver of a

fundamental constitutional right, including the right to be represented by

counsel.’ State v. Dyer (1996), 117 Ohio App.3d 92, 95, 689 N.E.2d 1034. As

a result, ‘a valid waiver affirmatively must appear in the record, and the

State bears the burden of overcoming the presumption against a valid

waiver.’    State v. Martin, Cuyahoga App. No. 80198, 2003-Ohio-1499.        ‘In

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

make sufficient inquiry to determine whether a defendant fully understands

and intelligently relinquishes that right.’    Gibson, paragraph two of the

syllabus.

      {¶ 15} “Although there is no prescribed colloquy in which the trial court

and a pro se defendant must engage before a defendant may waive his right
                                         7

to counsel, the court must ensure that the defendant is voluntarily electing to

proceed pro se and that the defendant is knowingly, intelligently, and

voluntarily waiving the right to counsel.         Martin, citing State v. Jackson

(2001), 145 Ohio App.3d 223, 227, 762 N.E.2d 438. Given the presumption

against waiving a constitutional right, the trial court must ensure the

defendant is aware of ‘the dangers and disadvantages of self-representation’

and that he is making the decision with his ‘eyes open.’ Faretta at 835.

      {¶ 16} “In determining the sufficiency of the trial court’s inquiry in the

context of the defendant’s waiver of counsel, the Gibson court applied the test

set forth in Von Moltke v. Gillies (1948), 332 U.S. 708, 723, 68 S.Ct. 316, 92

L.Ed. 309, as follows:

      {¶ 17} “‘* * * To be valid such waiver must be made with an

apprehension 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 matter.’” Buchanan at ¶15-18.

      {¶ 18} See,   also,   State   v.   Perry,   Cuyahoga    App.   No.   81825,

2003-Ohio-1175; Martin, supra; State v. Buckwald, Cuyahoga App. No. 80336,

2002-Ohio-2721; State v. Richards (Sept. 20, 2001), Cuyahoga App. No. 78457;

State v. Jackson, supra; State v. Melton (May 4, 2000), Cuyahoga App. No.
                                           8

75792. Lack of compliance with these standards is reversible error and not

subject to harmless error review. Id.

        {¶ 19} Additionally, Crim.R. 44(C) requires the trial court to obtain a

signed, written waiver by the defendant in “serious offense cases.”                     A

“serious offense” is defined as any felony and any misdemeanor for which the

penalty prescribed by law includes confinement for more than six months.

Crim.R. 2(D). 2     The absence of a signed waiver in a serious offense case

constitutes reversible error.        Martin, supra.       See, also, State v. Suber,

Franklin App. No. 02AP-1419, 2003-Ohio-5210 (departing from its previous

position of applying a prejudicial error standard for trial court’s failure to

strictly comply with Crim.R. 44(C) and adopting the standard of reversible

error shared by the majority of Ohio appellate courts).

        {¶ 20} Upon review of the record, it is evident that on September 8,

2008,       prior to appellant’s first trial, the trial court complied with the

standard set forth in Von Moltke.

        {¶ 21} During the September 8, 2008 hearing, appellant asserted his

right to self-representation. Thereafter, the trial court engaged in a lengthy


        2Appellant was charged with criminal nonsupport in violation of R.C.
2919.21(B).    Furthermore, appellant failed to provide support for a total
accumulated period of 26 weeks out of 104 consecutive weeks. Pursuant to R.C.
2919.21(G)(1), “if the offender has failed to provide support under division (A)(2) or
(B) of this section for a total accumulated period of twenty-six weeks out of one
hundred four consecutive weeks, whether or not the twenty-six weeks were
consecutive, then a violation of division (A)(2) or (B) of this section is a felony of the
fifth degree.”
                                      9

discussion with appellant regarding his constitutional right to waive counsel.

The trial court advised appellant of his charges, the maximum possible

sentence, his affirmative defenses, and the dangers associated with

self-representation.   Additionally, the trial court explained certain trial

procedures and advised appellant that he would be bound to the same rules of

procedure and evidence as an attorney. Finally, the trial court attempted to

have appellant waive his right to counsel in writing, as required by Crim.R.

44(C). Although appellant initially declined to sign the waiver, the record

contains a signed waiver of counsel dated September 8, 2008. Within the

document, appellant indicated that his decision to proceed pro se was made

knowingly, intelligently, and voluntarily, and that he understood his rights,

the nature of the charges brought against him, the maximum possible

sentences, and the perils of proceeding pro se.

      {¶ 22} In light of the trial court’s statements on the record and the

written waiver signed by appellant, it is clear that the trial court took

precautions to ensure that appellant understood the nature of his decision to

proceed pro se and that his decision to waive his right to counsel was

knowingly, intelligently, and voluntarily made.

      {¶ 23} However, at the conclusion of the state’s case-in-chief, the trial

court ordered a psychiatric examination of appellant on March 3, 2009. On

March 5, 2009, the trial court reviewed the appellant’s psychiatric clinic
                                     10

report.   Based on the report and the recommendations of the psychiatric

clinic, the trial court found “that while [appellant] is, in fact, competent to

stand trial and that he does understand the nature and objectives of the

proceedings, as well as the potential penalties involved and any defenses, that

he is incompetent to represent himself.” Thereafter, the trial court assigned

attorney Charles Morgan to represent appellant and declared a mistrial.

      {¶ 24} On March 13, 2009, appellant’s matter was reassigned to a new

trial court for retrial. Thus, the question, then, is whether the “first” waiver

of counsel remains valid for the “second” trial. This issue was addressed in

City of Washington C.H. v. Steward (July 20, 1987), Fayette App. No.

CA86-08-008. In Steward, the Twelfth District stated:

      {¶ 25} “We feel that under the facts and circumstances of the case sub

judice, it was unnecessary for the court to obtain a second waiver of counsel.

First, a relatively short period of time passed between the appellant’s waiver

and the first and second trials.      Second, the new trial added no new

circumstances. There was no change in the nature of the charges against

appellant, the statutory offenses included with them, the range of allowable

punishments, or possible defenses to the charges and circumstances in

mitigation thereof. See United States v. Weninger (C.A.10, 1980), 624 F.2d

163, 164, certiorari denied (1980), 449 U.S. 1012, 101 S.Ct. 568, citing Von

Moltke v. Gillies (1948), 332 U.S. 708, 723-24, 68 S.Ct. 316, 323. Further,
                                     11

appellant had fairly extensive past experience with the state criminal justice

system and should have been aware, from the ‘first’ trial, of the hazards of

proceeding pro se. Therefore, based on the total circumstances of this case,

including [the] background, experience and the conduct of the accused person,

we must conclude that there has been no violation of appellant’s right to

counsel.” Id.

      {¶ 26} Unlike the circumstances presented in Steward, appellant’s

second trial involved new circumstances, including additional charges

brought against him, a heightened range of allowable punishments, and

various possible defenses. Prior to appellant’s second trial, he was found in

contempt of court and indicted in Case No. CR-531800 on new counts of

felonious assault, assault, obstructing official business, and resisting arrest.

Subsequently, appellant’s criminal nonsupport case (CR-510803) and his

assault case (CR-531800) were consolidated, and the matter was set for trial

on July 6, 2010.

      {¶ 27} However, prior to the commencement of appellant’s second trial,

the trial court failed to conduct any inquiry as to whether appellant was

knowingly, intelligently, and voluntarily waiving his right to counsel. The

trial court failed to address appellant’s new charges altogether and accepted

his waiver of counsel without addressing the additional penalties and perils

he was facing in the consolidated trial.      Rather, the trial court merely
                                        12

concluded that appellant was “more than competent to defend himself” based

on the second psychiatric evaluation that found appellant competent to stand

trial and assist in his defense.

      {¶ 28} In light of the seriousness of the additional charges appellant was

facing in his retrial, we believe that the trial court was required to conduct an

inquiry pursuant to Von Moltke and establish, as it did during appellant’s

initial trial, that he was knowingly, intelligently, and voluntarily waiving his

constitutional right to counsel. Additionally, the trial court was required to

obtain a written waiver of counsel pursuant to Crim.R. 44(C) based on the

nature of appellant’s charges in CR-531800. Unlike the scenario presented

in Steward, the trial court’s determination that appellant was knowingly,

intelligently, and voluntarily waiving counsel in his first trial cannot be

imputed to appellant’s second trial where the second trial involved additional

charges that were not contemplated during appellant’s initial waiver.

      {¶ 29} Based on the foregoing, appellant’s first assignment of error is

sustained. We find that appellant must be granted a new trial because his

waiver of counsel at his second trial was not knowing, voluntary, and

intelligent, and because the trial court failed to comply with the requirements

of Crim.R. 44(C) at the second trial.

      {¶ 30} Although our disposition of appellant’s first assignment of error

renders moot some of the remaining assignments of error, “to the extent that
                                      13

they raise arguments regarding the sufficiency of the evidence they must be

addressed, since a reversal on sufficiency grounds would bar retrial on the

counts affected.” Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72

L.Ed.2d 652.     Therefore, we will address appellant’s fourth assignment of

error.

                         Sufficiency of the Evidence

         {¶ 31} In his fourth assignment of error, appellant argues that his

convictions for assault of a peace officer and obstruction of official business

were not supported by sufficient evidence. Appellant does not challenge his

remaining convictions on sufficiency grounds, therefore they will not be

addressed.

         {¶ 32} A challenge to the sufficiency of the evidence supporting a

conviction requires a court to determine whether the state has met its burden

of production at trial.     State v. Thompkins, 78 Ohio St.3d 380, 390,

1997-Ohio-52, 678 N.E.2d 541. 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. Id. 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. State v. Jenks (1991), 61

Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
                                       14

         {¶ 33} Initially, appellant contends that the state failed to present

sufficient evidence to support his conviction for assault on a peace officer.

R.C. 2903.13 provides: “(A) No person shall knowingly cause or attempt to

cause physical harm to another * * *.” Furthermore, “(C)(3) [i]f the victim of

the offense is a peace officer * * *, while in the performance of their official

duties, assault is a felony of the fourth degree.”

         {¶ 34} At trial, Judge Michael Corrigan testified, “I directed [Deputy

Slattery] to bring [appellant] up to the trial table, [appellant] refused.

[Appellant] got into a fight with him.” Deputy James Slattery testified that

he was on duty at the courthouse on November 30, 2009. Deputy Slattery

indicated that he observed appellant refusing to obey the orders of the trial

court. At that point, appellant was placed in contempt, and Deputy Slattery

was instructed to remove appellant from the courtroom.         Deputy Slattery

testified, “He refused, three, four times, and he had a briefcase sitting there.

I grabbed the briefcase and he grabbed my arm * * *.           I let go of the

briefcase, I yanked him out of his seat and cuffed one arm, tried to cuff his

other arm, and he kept spinning on me. We spun once, the second spin I

tripped him to the ground and he fell flat down with his elbow up and his arm

under him, and I landed on his elbow and I felt something pop in my rib

cage.”
                                     15

      {¶ 35} Appellant contends that the state failed to present evidence that

he knowingly caused or attempted to cause physical harm to the deputy. “A

person acts knowingly, regardless of his purpose, when he is aware that his

conduct will probably cause a certain result or will probably be of a certain

nature.” R.C. 2901.22(B). Whether a defendant acted “knowingly” must be

inferred from the totality of the circumstances surrounding the alleged

offense. See State v. Booth (1999), 133 Ohio App.3d 555, 562, 729 N.E.2d

406. “Cause” is defined as “an act or failure to act which in a natural and

continuous sequence directly produces [physical harm to another], and

without which it would not have occurred.” 4 Ohio Jury Instructions (2006)

64-65, Section 409.55.

      {¶ 36} In this case, it is evident that appellant refused to comply with

the instructions of the trial court and struggled with the deputy as the deputy

attempted to place handcuffs on him.            Under the totality of the

circumstances, we find that there was ample evidence for the jury to conclude

that appellant was aware that his conduct would probably cause physical

harm to Deputy Slattery, which, in fact, it did.     Given the foregoing, we

conclude that there was sufficient evidence presented to support appellant’s

conviction for assault under R.C. 2903.13(A).

      {¶ 37} Additionally, appellant challenges the sufficiency of the evidence

supporting his conviction for obstructing official business. Pursuant to R.C.
                                      16

2921.31(A):    “No person, without privilege to do so and with purpose to

prevent, obstruct, or delay the performance by a public official of any

authorized act within the public official’s official capacity, shall do any act

that hampers or impedes a public official in the performance of the public

official’s lawful duties.”

      {¶ 38} “A person acts purposely when it is his specific intention to cause

a certain result, or, when the gist of the offense is a prohibition against

conduct of a certain nature, regardless of what the offender intends to

accomplish thereby, it is his specific intention to engage in conduct of that

nature.” R.C. 2901.22(A).

      {¶ 39} “The proper focus in a prosecution for obstructing official business

is on the defendant’s conduct, verbal or physical, and its effect on the public

official’s ability to perform the official’s lawful duties.” State v. Wellman, 173

Ohio App.3d 494, 2007-Ohio-2953, 879 N.E.2d 215, at ¶12.

      {¶ 40} In light of the testimony presented at trial, we conclude that a

reasonable jury could conclude that appellant’s physical resistance to Deputy

Slattery while he was attempting to remove appellant from the courtroom

constituted a purposeful act to impair or hinder Deputy Slattery’s ability to

perform his lawful duties.
                                     17

      {¶ 41} Accordingly, appellant’s convictions for assault on a peace officer

and obstructing official business were supported by sufficient evidence.

Appellant’s fourth assignment of error is overruled.

                                   Joinder

      {¶ 42} Finally, we address appellant’s second assignment of error

because it may be subject to repetition at appellant’s new trial. In his second

assignment of error, appellant argues that the trial court committed

prejudicial error when it joined the two unrelated cases for trial over his

objection.   Appellant contends that the evidence of unrelated crimes,

including the allegations of assault and obstruction, unfairly prejudiced his

defense against allegations of criminal nonsupport.

      {¶ 43} We initially note that because appellant failed to renew his

objection to the joinder of the indictments at the close of the state’s evidence

or at the conclusion of all the evidence, he has waived this issue on appeal

except for plain error. State v. Owens (1975), 51 Ohio App.2d 132, 146, 366

N.E.2d 1367; see, also, State v. Saade, Cuyahoga App. Nos. 80705 and 80706,

2002-Ohio-5564; State v. Hill, Cuyahoga App. No. 80582, 2002-Ohio-4585;

State v. Fortson (Aug. 2, 2001), Cuyahoga App. No. 78240. Under Crim.R.

52(B), notice of plain error is to be taken with the utmost caution, under

exceptional circumstances, and only to prevent a manifest miscarriage of

justice. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph
                                      18

three of the syllabus. In order to find plain error under Crim.R. 52(B), it

must be determined that, but for the error, the outcome of the trial clearly

would have been otherwise. Id. at paragraph two of the syllabus.

      {¶ 44} Crim.R. 8(A) provides in pertinent part:     “Joinder of offenses.

Two or more offenses may be charged in the same indictment, information or

complaint in a separate count for each offense if the offenses charged * * * are

of the same or similar character, or are based on the same act or transaction,

or are based on two or more acts or transactions connected together or

constituting parts of a common scheme or plan, or are part of a course of

criminal conduct.”

      {¶ 45} Crim.R. 13 provides in pertinent part:   “The court may order two

or more indictments or informations or both to be tried together, if the

offenses or the defendants could have been joined in a single indictment or

information.”

      {¶ 46} Thus, pursuant to Crim.R. 8(A) and 13, two or more offenses can

be tried together if the offenses are of the same character, based on connected

transactions, or are part of a course of conduct.

      {¶ 47} Generally, the law favors joining multiple offenses in a single

trial under Crim.R. 8(A) if the offenses charged are of the same or similar

character.      State v. Sanchez, Cuyahoga App. Nos. 93569 and 93570,

2010-Ohio-6153, ¶27, citing State v. Lott (1990), 51 Ohio St.3d 160, 163, 555
                                      19

N.E.2d 293. However, if joinder would prejudice a defendant, the trial court

is required to order separate trials. Crim.R. 14. It is the defendant who

bears the burden of demonstrating prejudice and that the trial court abused

its discretion in denying severance. Hill at ¶7, citing State v. Coley, 93 Ohio

St.3d 253, 2001-Ohio-1340, 754 N.E.2d 1129.            A defendant’s claim of

prejudice is negated when: (1) evidence of the other crimes would have been

admissible as “other acts” evidence under Evid.R. 404(B); or (2) the evidence

of each crime joined at trial is simple and direct. Lott at 163; see, also, State

v. Schaim, 65 Ohio St.3d 51, 59, 1992-Ohio-31, 600 N.E.2d 661; State v.

Franklin (1991), 62 Ohio St.3d 118, 122, 580 N.E.2d 1.

      {¶ 48} In the instant case, the two cases are separate and distinct.   The

allegations are not based on connected transactions, nor do they form a course

of conduct. Further, evidence of appellant’s criminal nonsupport allegations

would not have been admissible to prove the counts of assault and obstruction

involving Deputy Slattery.     Hence, there was undoubtedly some prejudice

caused by the joinder of the two cases.

      {¶ 49} However, the joinder of the two cases did not affect their outcome.

 As discussed in the sufficiency analysis, there was direct evidence in support

of appellant’s convictions for assault on a peace officer and obstructing official

business.   Because evidence of appellant’s guilt was so overwhelming, it
                                     20

cannot be said that the joinder of the two cases caused him to be convicted in

CR-531800.

      {¶ 50} Furthermore, there was substantial evidence of appellant’s guilt

in CR-510803. The record reflects that appellant was under a court order to

make child support payments and consistently failed to make those

payments.    Paulina Raspovic, a support enforcement officer at the Child

Support Enforcement Agency, testified that appellant only made one payment

during the entire two-year time period from April 2005 to April 2007 and that

he had accrued an arrearage of $38,723.82 as of June 30, 2010.               The

testimony adduced at trial demonstrated that appellant was “an extremely

talented woodworker” and had the capability of obtaining work and simply

failed to do so.    Accordingly, appellant failed to establish that he was

providing support within his ability and means.

      {¶ 51} Therefore, although the joinder of the two cases was arguably

improper under Crim.R. 8(A), the outcome of the trial was not affected by the

joinder. Accordingly, appellant’s second assignment of error is overruled.

      {¶ 52} Because this matter is being remanded for retrial on separate

grounds, we note that this assignment of error will be relevant to appellant’s

retrial. As discussed, our conclusions in this assignment of error rely heavily

on appellant’s failure to raise timely objections, thereby subjecting him to the

confines of a plain error analysis.         Had appellant objected to the
                                      21

consolidation of his cases at the appropriate time, this court likely would have

reached a different outcome.

                                 Conclusion

      {¶ 53} In summary, appellant’s first assignment of error is sustained,

and therefore he must be granted a new trial; appellant’s second and fourth

assignments of error are overruled; appellant’s remaining assignments of

error are rendered moot.

      {¶ 54} This cause is affirmed in part, reversed in part, and remanded to

the lower court for further proceedings consistent with this opinion.

      It is ordered that appellant recover of said appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR

                                    APPENDIX

Appellant’s assignments of error:

“I.   The trial court erred and denied due process when it permitted
appellant’s pro se representation absent valid waiver(s) of his constitutional
right to counsel, especially where appellant did not knowingly, intelligently,
and voluntarily waive this right, where he was found incompetent to
represent himself and a determination that he was competent to represent
                                    22

himself was not made and no attempt was made to obtain his waiver or right
to counsel on the consolidated felonious assault, obstruction, and resisting
arrest case.”

“II. The trial court committed prejudicial error when it joined the two
unrelated cases for trial over appellant’s objection and deprived appellant of
his constitutional right to a fair trial.”

“III. The trial court erred when it permitted the prosecutor to amend the
dates of indictments in counts 5 and 6, changing the nature of the underlying
offenses and depriving appellant of his rights to indictment by grand jury and
to effectively present his affirmative defenses.”

“IV. Appellant’s convictions for assault on an officer and obstruction of
official business were not supported by sufficient evidence.”

“V. Appellant’s convictions for non-support, assault and obstruction were
against the manifest weight of the evidence in light of he evidence
demonstrating appellant’s affirmative defenses.”
