[Cite as State v. Ellis, 2020-Ohio-1115.]

                                COURT OF APPEALS OF OHIO

                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                             No. 108302
                 v.                               :

RAYSHAWN L. ELLIS,                                :

                 Defendant-Appellant.             :


                                 JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED AND REMANDED
                 RELEASED AND JOURNALIZED: March 26, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-16-607857-B


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Andrea Isabella, Assistant Prosecuting
                 Attorney, for appellee.

                 Mark A. Stanton, Cuyahoga County Public Defender, and
                 Cullen Sweeney, Assistant Public Defender, for appellant.


KATHLEEN ANN KEOUGH, J.:

                    Defendant-appellant, Rayshawn L. Ellis (“Ellis”), appeals from the

trial court’s judgment, rendered after a jury trial, finding him guilty of improperly

handling a firearm in a motor vehicle, having a weapon while under disability, and
obstructing official business, and sentencing him to 36 months incarceration. For

the reasons that follow, we reverse and remand.

I.       The Trial

                 In 2016, Ellis and codefendant Douglas Roberts were charged in a

nine-count indictment. Ellis was charged in seven counts with felonious assault

(Count 2), complicity to commit felonious assault (Count 3), tampering with

evidence (Count 4), two counts of improperly handling firearms in a motor vehicle

(Counts 5 and 6), having a weapon while under disability (Count 8), and obstructing

official business (Count 9). Counts 2 and 5 included firearm specifications. The

charges rose from an incident that occurred on July 8, 2016, and involved Jovaughn

Holman (“Holman”). Ellis pleaded not guilty, and the matter proceeded to a jury

trial.

                 Holman testified that he had an on-and-off relationship with Leeanna

Archer (“Leeanna”), the mother of their one-year-old daughter.           He said he

sometimes lived with Leeanna and sometimes with his sister, Diana Woodland.

                 Holman testified that Leeanna’s sisters threw her a birthday party at

her apartment on July 7, 2016, and he was upset that he had not been invited to the

party, even though Douglas Roberts (“Roberts”), a former boyfriend of Leeanna’s,

had been invited. Holman testified that he showed up at the party anyway, and when

he asked Roberts to leave, they got into an argument. Holman said that he then left

the party and walked to Leeanna’s cousin’s house, which was only a few blocks away.

Holman said that after a short time, Roberts, who was drunk, showed up and asked
to speak to him. Holman said that when he went outside to talk to Roberts, he

noticed that Roberts had a gun in the waistband of his pants; Holman said that

Roberts “kept grabbing it like he wanted me to notice it.” Holman told Roberts they

could talk later, and then left to go to his sister’s house, which was on Arlington

Avenue.

               Holman testified that once at his sister’s house, he realized that he

needed several items for his daughter, so he drove his sister’s car to Leeanna’s

apartment to get them. Holman said that when he was at the apartment, Roberts

walked over to him with a gun in his hand and asked him, “what was that stuff you

were talking about?” Holman said that he “brushed it off” and walked out the back

door of the apartment. He said that Roberts followed him to the parking lot, and his

cousin came out to try to calm Roberts down. Holman said he then drove away.

               Holman testified that he and his cousin went to a mall for a short time,

and he then decided to go back to his sister’s house. He said that as he was waiting

at a red light at the intersection of East 88th Street and St. Clair Avenue, he heard a

gunshot. He said that when he opened the driver’s side door and looked back, he

saw a silver car one car-length behind him, and an arm extending out of the

passenger side window holding a gun up in the air. Holman said that Ellis was

driving the silver car and Roberts was in the front passenger seat.

               Holman said that he “ducked down and just took off” to his sister’s

house. He said he drove 35 city blocks at 60 to 70 miles per hour, running through

red lights, and the silver car chased him the whole way.
               Leeanna testified that Holman was gone by the time she arrived at the

birthday party, but that later, when she could not find her wallet and car keys, she

suspected that Holman had taken them. When she asked Roberts for a ride to

Holman’s sister’s house, he told her that Ellis had driven him to the party, and Ellis

then agreed to take her. She said that Ellis drove, Roberts was in the front passenger

seat, and she was in the back seat.

               Leeanna denied that they were “out looking for [Holman],” and said

they just happened to see his car as they drove down St. Clair Avenue to his sister’s

house. According to Leeanna, while both cars were stopped at an intersection,

Roberts unexpectedly leaned out of the passenger side window and fired two shots

in the air. Leeana testified that she was shocked because she did not know that

Roberts had a gun; she said she had not seen a gun at the party, and no gun was

visible when she got in the car.

               Leeanna testified that after Roberts shot the gun, she started “going

off” on him, slapping him, and asking him why he shot the gun. He replied that he

was “just trying to get [Holman’s] attention.” Leeanna said that Ellis told Roberts

to “chill; we know where he at; we’re going to get him.” She characterized Ellis’s

reaction to the shots as “normal, as in he’s already aware that he had a gun * * * and

he didn’t seem in shock as if where did that come from.” She acknowledged,

however, that before Roberts shot out the window, she never saw anything to

indicate that Ellis knew that Roberts had a gun.
               Leeanna denied that they chased Holman after the shots; she said that

Holman sped away and they just continued to his sister’s house. She said that Ellis

did not speed after Holman nor run any red lights.

               Holman testified that he lost sight of Ellis’s car before he reached his

sister’s house, and said that when he got there, he parked and went inside. He said

that Ellis arrived about five to seven minutes later.

               Leeanna, Roberts, and eventually Ellis got out of the car and came on

the lawn. According to Holman, Leeanna started yelling about him bringing out her

wallet and keys. Holman stayed inside while his mother and two sisters went outside

to engage Leeanna. Leeanna testified that Holman’s younger sister “start[ed] going

off” and punched her in the face; Holman’s mother and sisters testified that Leeanna

started the fight.

               Holman and his family testified that Roberts was “acting a fool

waving the gun around,” although he was not actually threatening anyone. They all

agreed that Ellis “never did anything” and tried to calm things down. Holman

testified that Ellis only got out of the car when Leeanna started fighting and that he

was “trying to tell [Roberts], just leave, you know, just get off the property.”

Holman’s mother testified that Ellis kept trying to get Roberts to leave, and his sister

testified that Ellis tried to walk away but did not seem to want to leave without

Roberts.

               Both Holman’s sister and her daughter called 911. Cleveland police

officer Ion Onofrei testified that shortly after midnight, he and his partner were
dispatched to 12701 Arlington Avenue regarding “a person with a gun * * *

threatening people in that area.”

               As the police were driving down Arlington Avenue with their sirens

on and lights flashing, Ellis and Roberts got back in the car, Ellis in the driver’s seat

and Roberts in the passenger seat. When she saw the police coming, Leeanna fled

the scene.

               Officer Onofrei testified that when he and his partner arrived, a

female approached their car, pointed to Ellis’s car, and advised them “that’s the

people with the gun.” Officer Onofrei testified that when they pulled up behind

Ellis’s car, he saw Roberts toss the gun out the passenger side window. The officers

exited their car with their guns drawn and ordered Ellis and Roberts out of the car.

               Officer Onofrei testified that the officers found no gun on Ellis when

they patted him down and handcuffed him. He said the police wanted to detain Ellis

in the back of a zone car while they investigated the situation, but Ellis did not want

to get in the police cruiser, stating that he had not done anything wrong. Cleveland

police officer Michael Boyd testified that it took the police 30-40 seconds to “push

[Ellis’s] hips in and control his head so we could get him to sit in the back of the car.”

Officer Boyd also testified that Ellis was “not very cooperative in giving us

information” and did not initially give his full name and Social Security number,

although he eventually did so. Officer Boyd testified further that Ellis “refused to

give us fingerprints” during booking at the jail.
              The trial court denied Ellis’s Crim.R. 29 motion in its entirety. The

jury found Ellis not guilty of felonious assault (Count 2), complicity to commit

felonious assault (Count 3), tampering with evidence (Count 4), and one count of

improperly handling firearms in a motor vehicle (discharging a firearm while in a

motor vehicle) (Count 5). The jury found Ellis guilty of the other count of improperly

handling firearms in a motor vehicle (transporting a loaded firearm in a motor

vehicle in a manner that the firearm is accessible to the operator or any passenger)

(Count 6), having a weapon while under disability (Count 8), and obstructing official

business (Count 9).

              The trial court subsequently sentenced Ellis to a total term of 36

months incarceration, and three years postrelease control. This appeal followed.

II. Sufficiency of Evidence

      A. Obstructing Official Business

              In his third assignment of error, Ellis contends that his conviction for

obstructing official business in violation of R.C. 2921.31(A) was not supported by

sufficient evidence because the failure to provide one’s fingerprints upon the request

of police is not an affirmative act that would support a conviction under R.C.

2921.31(A)

              As an initial matter, we reject the state’s contention that Ellis waived

this argument for purposes of appeal because defense counsel did not raise the

argument at trial, and argued only that Ellis had not obstructed official business

because he eventually gave his name and Social Security number to the police and
thus did not impede their investigation. “The prosecutor must prove each and every

element of the offense beyond a reasonable doubt,” State v. Carter, 64 Ohio St.3d

218, 223, 594 N.E.2d 595 (1992), citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), and a conviction based on legally insufficient evidence

is a denial of due process. State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678

N.E.2d 541 (1997). Thus, a defendant’s not guilty plea preserves his right to object

to the insufficiency of the evidence on appeal. State v. Jones, 91 Ohio St.3d 335,

346, 744 N.E.2d 1163 (2001), citing Carter at id.           Consequently, waiver is

inapplicable to an insufficiency argument and, accordingly, we will consider Ellis’s

argument.

              The test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial. State v. Bowden, 8th Dist.

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. 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. State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

              Ellis was convicted of obstructing official business in violation of R.C.

2921.31(A), which provides that
      [n]o 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 his official capacity, shall do any act which hampers or
      impedes a public official in the performance of his lawful duties.

This provision has five essential elements: (1) an act by the defendant, (2) done with

the purpose to prevent, obstruct, or delay a public official, (3) that actually hampers

or impedes a public official, (4) while the official is acting in the performance of a

lawful duty, and (5) the defendant so acts without privilege. Brooklyn v. Kaczor,

8th Dist. Cuyahoga No. 98816, 2013-Ohio-2901, ¶ 7.

               As this court has recognized, “[t]o prove the crime of obstructing

official business, there must be proof of an affirmative or overt act that hampered or

impeded the performance of the lawful duties of a public official.” Id. at ¶ 8, citing

Parma v. Campbell, 8th Dist. Cuyahoga Nos. 79041 and 79042, 2001 Ohio App.

LEXIS 4907 (Nov. 1, 2001). ‘“One cannot be guilty of obstructing official business

by doing nothing because the text of R.C. 2921.31 specifically requires an offender

to act.’” Id., quoting State v. Brickner-Latham, 3d Dist. Seneca No. 13-05-26, 2006-

Ohio-609, ¶ 26. Thus, the “[m]ere failure to obey a law enforcement officer’s

request” does not bring a defendant “within the ambit of this offense.” Cleveland

Hts. v. Lewis, 187 Ohio App.3d 786, 2010-Ohio-2208, 933 N.E.2d 1146, ¶ 37 (8th

Dist.). Consequently, a defendant’s refusal to provide his driver’s license to an

officer on request, or the refusal to answer a police officer’s questions regarding

one’s identity cannot support a conviction for obstructing official business. Kaczor

at id., citing Middletown v. Hollon, 156 Ohio App.3d 567, 2004-Ohio-1502, 807
N.E.2d 945, ¶ 32 (12th Dist.) and Cleveland Hts. v. Lewis, 187 Ohio App.3d 786,

2010-Ohio-2208, 933 N.E.2d 1146, ¶ 37 (8th Dist.).

               Likewise, a defendant’s refusal to be fingerprinted cannot support a

conviction for obstructing official business. State v. Justice, 4th Dist. Pike No.

99CA631, 1999 Ohio App. LEXIS 5779, 13 (Nov. 16, 1999). The refusal to provide

fingerprints at the request of the police at booking merely constitutes a failure to act,

which is not criminalized by R.C. 2921.31. State v. Muldrow, 10 Ohio Misc.2d 11,

12, 46 N.E.2d 1177 (1983).

               Here, Ellis performed no affirmative act that would be sufficient to

constitute an affirmative act that hindered the police investigation for purposes of

R.C. 2921.31(A).     He merely failed to comply with a request to provide his

fingerprints. His refusal to provide his fingerprints cannot constitute a violation of

R.C. 2921.31(A). Accordingly, his conviction for obstructing official business in

violation of R.C. 2921.31(A) was not supported by sufficient evidence.

               The state contends that it produced evidence that Ellis’s alleged

obstruction involved refusing to get in or sit in the police cruiser. But the state never

made this argument in the trial court. Neither the indictment nor the bill of

particulars alleged a particular act by Ellis that constituted obstruction. In its

opening and closing argument, the state’s only argument regarding Ellis’s alleged

obstruction was his failure to submit to fingerprinting. (Tr. 155, 445.) Likewise, in

its argument opposing Ellis’s Crim.R. 29 motion for acquittal, the state argued that

Ellis obstructed official business because he failed to provide his fingerprints:
      And lastly as it regards to the obstructing official business count,
      Officer Boyd indicated that even though they already had identified
      him via Social Security number and full name, that part of the process
      with Cleveland CPU is that they need fingerprints, and that is typical
      protocol, and he wasn’t willing to cooperate with them. They later at
      another time had to then obtain his fingerprints, hence, obstructing
      their ability to complete their tasks.

(Tr. 392.)

              The state’s only argument throughout the case regarding Ellis’s

alleged obstruction involved his failure to submit to fingerprinting, and was the only

conceivable basis for the jury’s verdict. Assuming, without deciding, that the state

can now shift its argument on appeal to maintain its conviction on other grounds,

we still find insufficient evidence to support a conviction for obstructing official

business. Indeed, in State v. Simpson, 82 Ohio App.3d 286, 611 N.E.2d 892 (8th

Dist.1992), this court held that a defendant’s mere “refusal to get into the [police]

cruiser” does not constitute an affirmative “act to impede the police” as required by

R.C. 2921.31. Id. at 292.

              Accordingly, the third assignment of error is sustained. Because there

was insufficient evidence to support Ellis’s conviction for obstructing official

business in violation of R.C. 2921.31(A), the conviction on this count is vacated.

      B. Having A Weapon While Under Disability

              In his second assignment of error, Ellis contends that his conviction

for having a weapon while under disability is not supported by sufficient evidence.

              Ellis was convicted of violating R.C. 2923.13(A)(2), which prohibits

any person from knowingly acquiring, having, carrying, or using any firearm if he
has been convicted of any felony offense of violence. Although Ellis conceded at trial

that he had such a prior conviction, he contends that the evidence was insufficient

to establish that he constructively possessed Roberts’s gun.

                 The state conceded at trial that Ellis did not ever “handle or touch”

Roberts’s gun; thus, it conceded that Ellis did not acquire, carry, or use the firearm.

In order to “have” a weapon within the meaning of R.C. 2923.13(A), one must either

actually or constructively possess it. State v. Adams, 8th Dist. Cuyahoga No. 93513,

2010-Ohio-4478, ¶ 16. Because Ellis never actually possessed the gun, to convict

him of the offense, the state had to present evidence that he constructively possessed

Roberts’s gun.

                 Constructive possession exists when an individual exercises

dominion and control over an object, even though the object may not be within his

immediate physical possession. State v. Gardner, 8th Dist. Cuyahoga No. 104677,

2017-Ohio-7241, ¶ 34, citing State v. Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d

351 (1976). To establish constructive possession, there must be some evidence that

the person exercised or had the power to exercise dominion and control over the

object. Gardner at ¶ 35. It must also be shown that the person was “conscious of

the presence of the object.” Id., citing State v. Hankerson, 70 Ohio St.2d 87, 91, 434

N.E.2d 1362 (1982).

                 Whether a person under disability knowingly had, carried, or used a

firearm is to be determined from “all the attendant facts and circumstances

available.” State v. Bray, 8th Dist. Cuyahoga No. 92619, 2009-Ohio-6461, ¶ 21.
Although constructive possession of a firearm may be established by reasonable

inferences from circumstantial evidence, it cannot rest upon mere speculation.

Gardner at id., citing State v. Washington, 8th Dist. Cuyahoga Nos. 98882 and

98883, 2013-Ohio-2904, ¶ 22, and State v. Haynes, 25 Ohio St.2d 264, 270, 267

N.E.2d 787 (1971).

               Ellis contends there was insufficient evidence to support his

conviction because there was no evidence he was even aware Roberts had a gun until

Roberts fired it out of the car. He further contends there is no indication that anyone

other than Roberts exercised any dominion or control over the gun after Roberts

fired it. Ellis asserts that Roberts was waving the gun around in the air at Holman’s

sister’s house while he tried to diffuse the situation, and that Roberts threw the gun

out the passenger window of the car when the police pulled behind the car. Ellis

contends that Roberts, and only Roberts, had physical possession of the gun

throughout the events of the evening, and that he never exercised any dominion or

control over the gun.

               The state would have us find constructive possession based on Ellis’s

alleged knowledge that he knew the gun was inside the car when he, Roberts, and

Leeanna were driving to Holman’s sister’s house. The state notes that Leeanna

testified that Ellis’s reaction after Roberts shot the gun from the car was “normal, as

in he’s already aware that he had a gun, like he already knew.” It argues further that

even after Roberts shot the gun in the air, Ellis kept chasing Holman at 65-70 miles

per hour for approximately 35 city blocks. The state further contends that two or
more persons may have joint possession of the same object, and because Ellis was

in such close proximity to Roberts’s gun while they were in the car, he had access to

it and, therefore, had constructive possession of the gun.

               This case admittedly presents a close call. Nevertheless, we are not

persuaded by the state’s arguments. Leeanna testified that she saw nothing before

Roberts shot the gun out the car window to indicate that Ellis knew that Roberts had

a gun and further, that Ellis did not chase Holman after Roberts shot the gun. Her

testimony that Ellis somehow “already knew” about the gun before Ellis fired it out

the window because of his allegedly “normal” reaction to the shots is speculation.

               Furthermore, there is no evidence to suggest that Ellis had access to

the gun while he was driving Roberts and Leeanna to Holman’s sister’s house, even

after Roberts shot it out the window. Instead, all of the evidence at trial was that

Roberts, and only Roberts, carried the gun the entire evening — either in his pants

or his hands — and there is no evidence whatsoever that the gun ever left Roberts’s

physical possession while he rode in Ellis’s car. At most, the state’s evidence

established that Ellis was in the vicinity of the gun, which is not sufficient to establish

constructive possession. Gardner, 8th Dist. Cuyahoga No. 104677, 2017-Ohio-7241

at ¶ 45.

               In State v. Carson, 8th Dist. Cuyahoga No. 104998, 2017-Ohio-7243,

the defendant argued there was insufficient evidence to support his conviction on a

firearm specification in violation of R.C. 2941.141, which imposes an additional one-

year prison term when “the offender had a firearm on or about the offender’s person
or under the offender’s control while committing the offense.” The defendant

asserted there was insufficient evidence to support his conviction because even

though a firearm was discovered in the car he was driving when he was arrested, the

gun was not found on his person and was not within his immediate reach as the

driver. Id. at ¶ 21. This court noted that a defendant’s mere presence in an area

where an object is located does not conclusively establish constructive possession,

but “this presence, ‘coupled with another factor probative of dominion and control,

may establish constructive possession.”’ Id. at ¶ 18, quoting State v. Cooper, 3d Dist.

Marion No. 9-06-49, 2007-Ohio-4937, ¶ 26. This court found that the defendant’s

attempt to flee led to a natural inference that he was aware of the gun’s presence,

and his flight and the additional time used in fleeing, coupled with the furtive actions

of the passenger behind him and the subsequent discovery of the gun directly behind

this passenger, established that the defendant knowingly exercised dominion and

control over the firearm. Id. at ¶ 26.

               But in this case, there is not “another factor” probative of Ellis’s

alleged dominion and control over Roberts’s gun to couple with his presence near

the gun. There is no evidence that Ellis ever reached for the gun, demanded it from

Roberts, spoke to Roberts about it, or tried to hide it from the police. In short, there

is no evidence to establish that other being near the gun, Ellis ever had or was able

to exercise any dominion and control over the firearm.

               Accordingly, the second assignment of error is sustained. Because

there was insufficient evidence to support Ellis’s conviction for having a weapon
while under a disability in violation of R.C. 2923.13, the conviction on this count is

vacated.

III. The Trial Court’s Denial of Ellis’s Right to Self-Representation

               Ellis was arrested in July 2016, and held in pretrial custody for more

than seven months. His trial was first set in November 2016 but was continued on

six occasions for reasons outside of his control (witness unavailability, trial court

unavailability, defense counsel’s illness).

               On February 13, 2017, before commencing trial, the trial court

reviewed the charges against Ellis and the possible penalties if he were found guilty.

After advising Ellis that he had a lengthy criminal history, was facing a lot of time,

and that Roberts was willing to testify against him, the judge asked Ellis if he had

considered a plea. Ellis responded that he had considered a plea but had to

“respectfully decline” because “I am an innocent man and looking for justice today.”

When Ellis told the judge that he might testify at trial, the judge advised him that if

he did, the jury would find out about his criminal record.

               The trial judge then told Ellis about a recent trial in which the

defendant, who like Ellis said she was innocent and wanted justice, rejected a four-

year plea agreement in a murder case, went to trial, and was convicted of life in

prison without the possibility of parole. The judge then told Ellis that if he were

convicted by a jury, he could be in prison until age 63. The judge also told Ellis that

he should be aware that the jury would be instructed on the concept of conspiracy,
the same instruction that caused the defendant in the recent murder trial to be found

guilty. The judge also told Ellis that he “regarded [him] to be a bad actor.”

               The judge then again asked Ellis if he should consider pleading guilty,

to which Ellis responded, “I don’t feel like I could get a fair trial in this courtroom.”

Ellis told the court that he had “been here for seven months,” that his “speedy trial

rights have been violated,” and that “all I want to do is go home.” The trial court told

Ellis that he would only go home if he were found not guilty, which he should not

expect. Ellis then told the court “this is a mock trial,” he did not think he could “get

a fair trial in this courtroom,” and that “it seemed like this trial [is] going to go

whichever way you all say it is going to go anyway.”

               The judge told Ellis he was speaking “gobbledegook nonsense” and

then asked the prosecutor if the state was prepared to go forward. The prosecutor

indicated that the state was prepared for trial, but asked that Counts 2 and 3 be

nolled because “the victim on those counts [i.e. Holman] is MIA.” The court refused

to dismiss the two counts, and said he would sign a bench warrant for Holman’s

arrest and continue the trial. Ellis complained that several arrest warrants had

already been issued for Holman’s arrest, and that he was unwilling to consent to any

further continuance. The trial court nevertheless continued the trial. Significantly,

defense counsel did not challenge any of the trial court’s statements to Ellis during

the court’s colloquy with him, nor its decision to again continue the trial. Also

significantly, upon questioning from the judge, Ellis stated that he would not waive

a jury trial on the having a weapon while under disability counts and the notice of
prior conviction and repeat violent offender specifications, despite the judge’s

admonition that the jury would then learn about Ellis’s prior convictions.

                  Eight days later, on the day of trial, February 21, 2017, defense

counsel told the court that Ellis wanted to represent himself, wanted time to

research legal issues he believed his counsel had not adequately researched, and

wanted the trial judge to recuse himself “because he doesn’t feel that he can get a

fair trial.” Defense counsel also informed the court that despite his efforts, Ellis was

unwilling to waive his right to a jury trial on the having a weapon while under a

disability counts and notice of prior convictions and repeat violent offender

specifications.

                  The trial court ignored the request for recusal and engaged in a

colloquy with Ellis about his education and ability to represent himself. The judge

asked Ellis about his age, educational background, intelligence, and ability to

comprehend. The judge then asked Ellis to agree that he had “a lengthy, troubling

criminal record.” When Ellis told the judge that “a lot of things that you may see on

the record, a lot of them really can’t be held against me because I actually got tricked

into copping out, as I see a lot of my brothers and sisters do it every day,” the judge

said, “Okay, I see where this could go,” and summarily denied Ellis’s motion to

represent himself, stating that the court would not entertain an oral motion and the

motion was “out of time.”

                  The court then asked if there were any other issues that needed to be

addressed prior to trial. Ellis then stated that he did not mind keeping his defense
counsel, but still wanted to research “some things for myself because I see how this

court is going and, you know, this is all — it’s a lot of discrepancies.” When the judge

asked what the discrepancies were, Ellis responded that ‘[t]here’s not a piece of

evidence that proves that I’m guilty of any crime.” The trial court responded that

Ellis could “tell this to a jury” to “convince them,” but “[y]ou’re never going to

convince me, because I know who you are. I know your record.”

                  The trial court then reminded Ellis about the defendant who had

recently rejected a plea deal, was found guilty of murder, and is now serving a life

sentence. When Ellis told the judge that case had nothing to do with him, the judge

told him he could serve 23 years on the first count alone, and that in light of his

record, he would serve a lengthy sentence if he went to trial and was found guilty.

                  The judge then reiterated to Ellis that he was not going to represent

himself because he had not filed a motion, and that the case was not going to be

delayed again because Holman had been arrested since he would not come in on his

own to testify.

                  In his third assignment of error, Ellis contends that the trial court

committed reversible error when it denied his request to represent himself.

                  Criminal defendants enjoy the constitutional right to self-

representation at trial provided that the right to counsel is knowingly, voluntarily,

and intelligently waived after sufficient inquiry by the trial court. State v. Johnson,

112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 89. The right is not

absolute, however. A criminal defendant must “unequivocally and explicitly” invoke
his right to self-representation. State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-

3751, 772 N.E.2d 81, ¶ 38. In addition, the request must be timely. Id. Where the

request is timely and explicitly made, the denial of the request is per se reversible

error. State v. Thigpen, 8th Dist. Cuyahoga No. 99841, 2014-Ohio-207, ¶ 23.

              Self-representation may be properly denied when requested in close

proximity to trial or under circumstances indicating that the request is made for

purposes of delay or manipulation. State v. Armstrong, 8th Dist. Cuyahoga No.

103088, 2016-Ohio-2627, ¶ 9, citing State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-

3193, 790 N.E.2d 303, ¶ 50.

              It is apparent that Ellis unequivocally and explicitly invoked his right

to self-representation on February 21, 2017. The issue is whether his request was

timely. The state contends that Ellis’s request was “untimely and essentially a

manipulative tactic to delay trial” because Ellis never asked to represent himself

prior to February 21, 2017, immediately prior to trial, even though the case had been

pending for seven months.

              We find nothing manipulative or untimely about Ellis’s request, even

though it was made on the day of trial. First, although the trial court stated that it

was denying the request as untimely, it is apparent that was not the real reason for

its denial. When the trial court was informed that Ellis wanted to represent himself,

the court did not immediately deny the request as untimely. Rather, the judge began

a colloquy with Ellis to assess his ability to represent himself. The judge quickly

became irritated with Ellis’s assertions about the fairness of the criminal justice
system, however; said he “saw where this could go,” and denied Ellis’s right to

personally present his defense by using the pretext of untimeliness. The judge’s

disagreement with Ellis’s view of the criminal justice system, however, is not a

permissible basis for denying his right to represent himself.

               Furthermore, we do not find that the request was made for the

purpose of delay. If Ellis had caused ongoing delays of the trial through frequent

requests for continuances, changes in counsel, or frivolous motions, there would be

a basis for concluding his request for self-representation was merely another delay

tactic. See, e.g., State v. Lozada, 8th Dist. Cuyahoga No. 94902, 2011-Ohio-823 (day

of trial request untimely, particularly given the history of delays in the case caused

by the defendant). But Ellis had not done so. In fact, the delays in the case and

continuance of the trial date were attributable almost entirely to the state, and even

before he made his request for self-representation, Ellis had complained bitterly

about the delay that had already occurred in his case. Indeed, Ellis had strenuously

objected when only eight days earlier, the trial court had continued the trial again

despite Ellis’s objection that the trial had been continued many times already, and

his assertion that he would not consent to another continuance.

               It is apparent that Ellis’s decision to represent himself came about

because only eight days earlier, the trial judge had pressured him to plead guilty, to

the point where Ellis told the court he did not feel like he could get a fair trial, and it

“seemed like this trial [is] going to go whichever way you all say it is going to go

anyway.” Most significantly, Ellis’s counsel offered no objection whatsoever to any
of the trial court’s comments during the hearing on February 13, 2017, nor any

assistance to Ellis. Having been subjected to the judge’s unrelenting pressure with

no protection or assistance from counsel, it is not surprising that Ellis asked to

represent himself.

                Ellis also asked that the trial judge recuse himself (which the court

never addressed), a request that supports our conclusion that Ellis’s request to

proceed pro se was not made for the purpose of delay. At the hearing on February

13, 2017, after engaging in an extended colloquy with the judge, Ellis told the trial

court that he did not believe he could get a fair trial. He also told the judge that he

would not waive a jury trial on the having a weapon while under disability counts

and notice of prior conviction and repeat violent offender specifications. Despite

counsel’s advice between that hearing and the day of trial, Ellis did not change his

mind about the waiver. Ellis’s refusal to waive a jury trial on these counts and

specifications supports his earlier statement that he felt ─ whether rightly or

wrongly ─ that he would not receive a fair trial.1 His request to represent himself,

although made on the day of trial, was not made for purposes of delay; it was Ellis’s

attempt to help himself secure a fair trial.

                Nor do we find Ellis’s statement after the court denied his request to

proceed pro se that he didn’t “mind keeping [his lawyer], if he wants to work, but I


       1 The trial judge’s statement to Ellis immediately before trial that Ellis could never
convince the judge that he was innocent “because I know who you are” is extremely
troubling, especially given Ellis’s earlier assertion that he felt he could not “get a fair trial
in this courtroom.”
need to get into the law library for myself,” to indicate that his request to represent

himself was not sincere and made for the purpose of delay. Given that the trial court

had denied his preferred option of representing himself, Ellis’s willingness to keep

his previously assigned attorney, rather than seeking a new one, demonstrates his

desire not to unnecessarily delay the trial.

               The dissent makes much of the fact that this was a delayed appeal,

asserting that the majority’s “reliance” on Ellis’s “professed ‘innocence’” and

“distaste for the justice system” is misplaced given Ellis’s acknowledgement at

sentencing and the hearing on his motion for judicial release of his criminal

responsibility. The dissent misunderstands the majority’s position. We do not rely

on Ellis’s protestations of innocence and his “distaste for the justice system” to find

he was denied his right to self-representation. Rather, we find that Ellis’s request

was unequivocally and timely made, and it was therefore structural error for the trial

court to deny his request.

               Furthermore, this appeal was delayed because the judge encouraged

Ellis at sentencing to file a motion for judicial release and strongly hinted he would

grant it. (Tr. 519.) At the hearing on the motion, the trial judge denied the motion,

finding ─ contrary to the dissent’s assertion ─ that Ellis had not accepted

responsibility for any criminal conduct. (Tr. 580-581.)

               The trial court’s denial of Ellis’s motion to represent himself denied

Ellis his constitutional right to self-representation, a structural error that requires
reversal of Ellis’s remaining conviction for improperly handling a firearm in a motor

vehicle. We reverse and remand for a new trial on this count only.

              Reversed and remanded.

      It is ordered that appellant recover from appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

MARY EILEEN KILBANE, P.J., CONCURS IN JUDGMENT ONLY;
SEAN C. GALLAGHER, J., CONCURS IN PART AND DISSENTS IN
PART WITH SEPARATE OPINION


SEAN C. GALLAGHER, J., CONCURRING IN PART AND DISSENTING IN
PART:

              Although I agree with the lead opinion’s resolution of the assigned

error with respect to the obstruction charge, I dissent from the remainder of the

opinion. There are two primary issues that must be addressed, the decision vacating

the conviction for having a weapon while under disability and the decision to

remand the improper handling of a firearm count for a new trial.
Having a Weapon While Under Disability

               With respect to the having a weapon while under disability

conviction, there appears to be some confusion as to the elements upon which Ellis

was found guilty. Under R.C. 2923.13(A), “no person shall knowingly acquire, have,

carry or use any firearm” while under disability as defined under subdivisions (A)(1)

through (5) of that section. (Emphasis added.) Id. The alternative means of

committing the offense are stated in the disjunctive — the state need only prove one

of the means to secure a conviction. In his brief, Ellis focuses on whether he actually

or constructively possessed a firearm on the day in question, to the exclusion of the

remaining alternative means of committing the offense.           This implicates the

“having” component of committing the offense, “[t]o ‘have’ a weapon under

disability requires either actual or constructive possession.” State v. Moore, 9th

Dist. Summit No. 28792, 2019-Ohio-1872, ¶ 10, citing State v. Hardy, 60 Ohio

App.2d 325, 327, 397 N.E.2d 773 (8th Dist.1978). The focus on the constructive

possession issue ignores the alternative means of proving the crime. State v.

McKinney, 8th Dist. Cuyahoga No. 106377, 2019-Ohio-1118, ¶ 33 (“In reviewing an

alternative means case, the [appellate] court must determine whether a rational trier

of fact could have found each means of committing the crime proved beyond a

reasonable doubt.”). We cannot arbitrarily focus on a single means of proving the

crime to the exclusion of an alternative that could have been the basis of the

conviction.
              In charging the jury, the trial court defined the term “carry” to mean

“to take from one place to another, to transport.” There were no objections to that

instruction at trial or in this appeal and, as a result, Ellis has waived any errors

therein. State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 191,

citing State v. Underwood, 3 Ohio St.3d 12, 444 N.E.2d 1332 (1983), syllabus. The

evidence demonstrated that Ellis, by driving off after the shooting with the

codefendant in the vehicle, knowingly transported the firearm from one place to

another. There is no possession component to transporting the firearm as the jury

was instructed. This conclusion is also consistent with the fact that the jury found

Ellis guilty of improper handling of a firearm in a motor vehicle. The inquiry should

end here based on the limited argument presented for our review. App.R. 16(A)(7).

              Even if the constructive possession means of committing the offense

were considered, Ellis’s argument is still without merit. With respect to the mens

rea that Ellis knowingly carried or possessed the firearm, there is a reasonable

inference that Ellis was aware of the codefendant’s possession of a firearm based on

his observed lack of response to the shooting — Ellis did not appear surprised by the

codefendant’s conduct. This is not speculation. The witness is permitted to testify

about her observations of Ellis’s conduct and her reaction to the same. From there,

the jury is free to draw reasonable conclusions. There is also evidence that the

codefendant reentered Ellis’s vehicle with the firearm after the incident at Holman’s

home. From the evidence presented at trial, it is reasonable to conclude that Ellis

was aware of the presence of the firearm because of his observed lack of surprise at
the shooting. See, e.g., State v. Carson, 8th Dist. Cuyahoga No. 104998, 2017-Ohio-

7243, ¶ 26 (reasonable inference from observations of the defendant’s actions

regarding knowledge of the firearm is sufficient evidence of guilt); State v. Scott, 8th

Dist. Cuyahoga No. 77461, 2001 Ohio App. LEXIS 5792, 20 (Dec. 14, 2001) (reaching

a similar conclusion).

               The lead opinion’s discussion addressing Ellis’s alleged dominion and

control over the firearm through the codefendant, for the purposes of the

constructive possession element of the crime, stems from its sua sponte review of

the record and its unilateral discussion of relevant legal authority. Ellis has not cited

any authority in support of the lead opinion’s conclusion, nor has he even discussed

whether his actions constituted dominion and control over the firearm as

contemplated under the constructive possession doctrine.

               Ellis’s sole argument is that he lacked foreknowledge of the weapon

for the purposes of constructive possession. The state has never been presented with

an opportunity to address Ellis’s dominion and control over the firearm for the

purposes of constructive possession.        Appellate courts have been continually

admonished to “not decide cases on the basis of a new, unbriefed issue without

‘giving the parties notice of its intention and an opportunity’” to respond. State v.

Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 21; State v. 1981 Dodge

Ram Van, 36 Ohio St.3d 168, 170, 522 N.E.2d 524 (1988). To rule in this fashion

deprives the state of any opportunity to address what is now considered dispositive.
              Although neither party discusses the constructive possession issue

outside the foreknowledge aspect, it should be noted that this court has concluded

that constructive possession may be “achieved by means of an agent.” In re J.H.,

8th Dist. Cuyahoga No. 85753, 2005-Ohio-5694, ¶ 29, quoting State v. Ridley, 10th

Dist. Franklin No. 03AP-1204, 2005-Ohio-333. In other words, an accomplice can

constructively possess a firearm by exercising dominion and control over another

who does possess the firearm. Hardy, 60 Ohio App.2d 325, at 327, 397 N.E.2d 773;

State v. Dalmida, 1st Dist. Hamilton No. C-140517, 2015-Ohio-4995, ¶ 16.

              I acknowledge that it is debatable whether Ellis’s actions arise to that

level based on the facts of this case, but in light of the fact that neither party has

addressed this component of a constructive possession claim, the issue has been

waived for the purposes of appellate review. State v. Wintermeyer, Slip Opinion No.

2019-Ohio-5156, ¶ 19. Appellate courts should not be required to create and

advocate legal positions on the behalf of the parties. Appellate decisions are best

formed in the crucible of advocacy, not from the sua sponte review of issues that may

not consider all aspects of the issue or the law. In light of the foregoing, and after

taking all reasonable inferences in favor of the state as we are required to do under

the sufficiency standard, there is sufficient evidence to support the having a weapon

while under disability conviction.

Improper Handling of a Firearm

              I also disagree with the decision to reverse the improper handling of

a firearm charge for a new trial based on the failure to permit Ellis to represent
himself at the trial, which ended with an acquittal on the most serious charges he

faced. It is important to remember that this is a delayed appeal. Although we treat

delayed appeals as if they were timely filed, we cannot ignore the fact that between

the time of Ellis’s conviction and this appeal, Ellis announced that he understood

the jury’s conclusion and accepted responsibility for his misconduct during the

sentencing hearing and at the time of his requests for judicial release. Any reliance

on Ellis’s professed “innocence” and distaste for the criminal justice system during

his pretrial invocation of his right to self-representation, as Ellis asks us to consider,

rings hollow given his later concessions and acceptance of criminal responsibility.

Tr. 510:4-516:3; tr. 545:1-15 (first hearing on judicial release).

               On this point, it must also be noted that the trial court, during the

sentencing hearing, did not “strongly hint” that a motion for judicial release would

be granted. Instead, the court merely indicated a belief in the sincerity of Ellis’s

acceptance of responsibility for his conduct in the underlying matter, and based on

that sincerity, the court would “consider” judicial release if a motion were later filed.

Tr. 519:17-23 (“If you have a motion [for judicial release], you have an option after

you’ve been there for six months to file. I’ll consider you for judicial release because

of the attitude that you have demonstrated here today, the awareness, the

enlightenment.” (Emphasis added.)).

               During the second hearing on Ellis’s motion for judicial release, Ellis

indeed retracted some of his former self-contemplative statements, tr. 564:1-566:19,

but nonetheless reminded the court of the sincerity of his sentencing remarks. Tr.
577:11-18. The trial court then walked through Ellis’s extensive criminal history with

Ellis taking opportunities to profess his innocence to several of the charges to which

he pleaded guilty in the other cases. Tr. 579:2-14. The trial court ultimately rejected

Ellis’s bid for early release, concluding, based on the statements made during the

second hearing, that Ellis’s acceptance of responsibility was not entirely sincere as it

had been presented at the sentencing and first judicial release hearings (which was

continued for the purpose of obtaining an institutional report). Tr. 580:5-25.

               Regardless, the bulk of the dialogue the lead opinion questions with

respect to the issues in this appeal has nothing to do with self-representation. For

example, while discussing the plea offer on the record more than a week before trial

commenced, the trial court noted that if Ellis persisted with his decision to try the

having a weapon while under disability count to the jury, the jury would hear of

Ellis’s prior convictions, and that because of Ellis’s record, the court would be hard-

pressed to finding him not guilty of the RVO specification if the jury returned a guilty

verdict on the underlying charges. Although arguably ill-advised, the court later

retracted that statement:

      and by the way, you do have a right to have the RVO and having weapon
      while under disability tried to the court. You’ve rejected that and you
      said some disrespectful things, but I’ll forgive you and let you do that
      again if you want to because its very prejudicial to let them [the jury]
      know that you’re an RVO, repeat violent offender, prior to trial.

Tr. 31:24-32:5.

               The trial court did not misstate the law or the practical effects of Ellis’s

then-pronounced decisions. This explains why Ellis’s counsel declined to interpose
objections — there was no basis for such an objection. At that time, Ellis maintained

that he was innocent of the charges because he was not an active participant in the

codefendant’s crimes. It was in that context that the trial court informed Ellis that

the legal definition of conspiracy vastly differed from Ellis’s notion of innocence, and

the trial court explained its most recent experience with an offender who

misconstrued the nature of a conspiracy charge in the same fashion, which resulted

in the offender serving 63 years in prison instead of the four or so years the state had

offered her before trial.

               Not all defendants understand the legal definition of conspiracy

under Ohio law, and Ellis clearly demonstrated that his professed understanding of

innocence was misplaced. Although the line between pressuring an offender into

pleading guilty and fully informing the offender of the consequences of a decision is

a fine one, chastising a court for correcting a defendant’s misconceptions will do

nothing but impose a chilling effect on trial courts attempting to explain complex

legal proceedings in simple-to-understand terms. And regardless, any issues with

the trial court’s plea proceeding is independent of any errors in the ensuing trial

process. In fact, the remedy for a trial court’s unwarranted exertion of pressure on

a defendant to plead guilty is to vacate the conviction and permit the offender to

withdraw the guilty plea. State v. Byrd, 63 Ohio St.2d 288, 294, 407 N.E.2d 1384

(1980).

               Instead of being forced into a plea, Ellis made an informed decision

to take the matter to trial, in which he was afforded a full and fair process. Tellingly,
the lead opinion cites no portion of the trial warranting any concern. Despite the

tone of the pretrial dialogue, the trial court appears to have conducted a fair and

balanced proceeding — in fact, no one is arguing to the contrary. Ellis’s attorney

exhibited skill and professionalism that resulted in Ellis being acquitted on the most

serious charges. Finally, the trial judge did not unduly punish Ellis at sentencing

because of his decision to decline the plea offer — the sentences were imposed to be

concurrently served — again, there is no objection to the imposed sentences that

have been fully served at this point in time.2

                Regardless, the real issue in this appeal has nothing to do with the

trial judge’s tone or commentary relative to the plea offer: it is the lead opinion’s

use of that dialogue to resolve a separate issue — namely Ellis’s equivocal and

untimely invocation of his constitutional right to self-representation.

                Requests for self-representation must be both unequivocal and

timely. State v. Townsend, 8th Dist. Cuyahoga No. 107186, 2019-Ohio-1134, ¶ 20,

citing State v. Halder, 8th Dist. Cuyahoga No. 87974, 2007-Ohio-5940, ¶ 50. Ellis’s

invocation was neither. Anything between six to ten days before trial has been

deemed presumptively “untimely.” Id. at ¶ 19, citing United States v. Mackovich,

209 F.3d 1227, 1237 (10th Cir.2000), and United States v. George, 56 F.3d 1078,

1084 (9th Cir.1995); State v. Castellon, 8th Dist. Cuyahoga No. 106813, 2019-Ohio-

628, ¶ 51. Ellis’s request first proffered on the day of trial is not even pushing the


       2 The three-year aggregate term of   imprisonment imposed in March 2017 included
265 days of jail-time credit.
boundaries of that presumption and to conclude otherwise creates a conflict with

decisions from this district and the Ohio Supreme Court.

                 As the lead opinion notes, Ellis asked to represent himself on the day

of trial for the express purpose of researching legal issues he believed his counsel

had not adequately researched.        Contrary to an express invocation, Ellis also

expressed a desire to keep his defense counsel and he only sought to represent

himself because he wanted access to the case file and the right to be in the law

library. Ellis’s self-professed goal was to delay the trial while retaining his court-

appointed counsel. This alone demonstrates that Ellis’s invocation of his right to

self-representation was equivocal — no defendant has a right to represent himself

concurrently with trial counsel. There is no error here, legal or otherwise. Courts

must deny such a request. State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772

N.E.2d 81, ¶ 37 (request for hybrid representation does not constitute an

unequivocal request for self-representation and was untimely when made three days

before trial).

                 The lead opinion includes two other discussions within the

framework of the self-representation issue that must be addressed. The lead opinion

claims the trial court failed to address a request for recusal and that the trial court

“became irritated” with Ellis’s assertions about the “fairness of the criminal justice

system” and his own innocence. It appears these discussions were intended to

bolster the conclusion that structural error occurred. Lead opinion at ¶ 64.
               Immediately before Ellis asked to proceed pro se, his counsel

indicated that he believed, based on a discussion he had with Ellis, that Ellis would

petition the court for a recusal and, in the alternative, seek self-representation at the

trial. At no point did Ellis’s counsel indicate any intention of formally ratifying

either of Ellis’s requests into motions — he simply relayed the information he

believed to be relevant. When the trial court provided Ellis the opportunity to speak

on his pro se requests, Ellis solely discussed the self-representation issue, omitting

any reference to a recusal. Thus, the trial court did not ignore anything; there was

no motion, oral or written, upon which a ruling was required.

               Further, Ellis was proving himself to be difficult after the court

entertained his motion for self-representation. At that time, Ellis claimed that his

criminal history was a product of his being “tricked into copping out as a lot of my

brothers and sisters do it every day” and it was in this context that he believed he

could not receive a fair trial to prove his “innocence” — Ellis had no issues with the

quality of his attorney’s services and, in fact, praised his attorney following the

conclusion of trial. It was at this point that the trial court indicated it could “see

where this could go” and the motion for self-representation was denied. The lead

opinion then speculates that Ellis invoked his right because he lacked the

protections or assistance of his counsel in the face of the “unrelenting pressure” of

the trial judge to pressure Ellis into pleading guilty eight days earlier. Despite the

fact that nothing in the record substantiates the lead opinion’s speculative belief of

what Ellis thought or felt, the lead opinion concludes that it is not surprising that
Ellis invoked his constitutional right. Id. at ¶ 59. It is unclear how the defendant’s

perception of the criminal justice system pertains to the self-representation issue,

and for this reason alone, the lead opinion’s reliance on the discussion within the

framework of the assigned error is misplaced.

               Structural error “‘affects the framework within which the trial

proceeds’” and is not merely “‘an error in the trial process itself.’” State v. Wilks, 154

Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 132, quoting Arizona v.

Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). In order to

constitute structural error, the error must invade “‘the entire conduct of the trial

from beginning to end.’” Id., quoting State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-

297, 802 N.E.2d 643, ¶ 17. “An error is structural only when it ‘necessarily render[s]

a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt

or innocence.’” Id. quoting Neder v. United States, 527 U.S. 1, 9, 119 S.Ct. 1827, 144

L.Ed. 2d 35 (1999).

               The trial court’s failure to rule on a motion never advanced cannot

constitute error in the least. Further, the trial court’s reaction to Ellis’s commentary

on the unfairness of the criminal justice system does not demonstrate any error in

the judicial process. Although some courts may permit offenders greater latitude in

critiquing the processes within our system of justice, a trial court’s obiter dictum is

not legal error. See, e.g., State v. Esner, 8th Dist. Cuyahoga No. 104594, 2017-Ohio-

1365, ¶ 14.
              The only issue before this court in this delayed appeal is whether

Ellis’s invocation of his right to self-representation was unequivocal and timely.

Failure to demonstrate either is grounds to affirm. The trial court’s denial of an

equivocal and untimely oral motion for self-representation on the morning of trial

does not constitute “structural error” under Ohio law. A trial court’s denial of the

right to self-representation is error only if the defendant “properly invokes the

constitutional right.” State v. Brown, 8th Dist. Cuyahoga No. 106518, 2018-Ohio-

3674, ¶ 6. Under Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, Ellis

did not do so. Further, the trial court’s obiter dictum on other issues plays no part

in the self-representation issue. The lead opinion is inappropriately combining

several alleged procedural errors to demonstrate the existence of structural error.

The law singularly recognizes that the failure to properly invoke the right to self-

representation does not constitute structural error. Brown. Our inquiry should

begin and end there.

Conclusion

              For these reasons, I agree with the decision to reverse the obstruction

of official business conviction based on the insufficiency of the evidence, but I

dissent from the remainder of the opinion.
