[Cite as State v. Evans, 2019-Ohio-603.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                          C.A. No.        28924

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
JUSTIN M. EVANS                                        COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR-2017-05-1888(A)

                                 DECISION AND JOURNAL ENTRY

Dated: February 20, 2019



        CARR, Judge.

        {¶1}     Appellant, Justin Evans, appeals the judgment of the Summit County Court of

Common Pleas. This Court reverses and remands.

                                                  I.

        {¶2}     In the late evening hours of April 14, 2017, Evans entered a Taco Bell along with

his wife and a teenage boy and proceeded to get into an altercation with several employees. The

incident occurred after the restaurant’s dining room had closed for the evening. The Summit

County Grand Jury indicted Evans on one count of aggravated burglary in relation to the

incident. Evans’ wife, Ashley Morris, was also charged with aggravated burglary.

        {¶3}     The matter proceeded to a bench trial. When Evans learned that Morris intended

to testify against him, he decided to represent himself at trial. The trial court ultimately found

Evans guilty of the charge and sentenced him to five years imprisonment.

        {¶4}     On appeal, Evans raises three assignments of error.
                                                   2


                                                  II.

                                   ASSIGNMENT OF ERROR I

          APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL
          UNDER THE SIXTH AMENDMENT AND FOURTEENTH AMENDMENTS
          TO THE UNITED STATES CONSTITUTION WHEN THE TRIAL COURT
          DID NOT PROPERLY ADVISE APPELLANT OF THE DANGERS OF SELF
          REPRESENTATION.    ACCORDINGLY, APPELLANT DID NOT
          KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVE HIS
          RIGHT TO COUNSEL.

          {¶5}   In his first assignment of error, Evans contends that the trial court did not take the

proper steps to ensure that his waiver of his right to counsel was knowing, intelligent, and

voluntary. This Court agrees.

          {¶6}   The Sixth Amendment to the United States Constitution, made applicable to the

states through the Fourteenth Amendment, provides criminal defendants with the fundamental

right to counsel. See Gideon v. Wainwright, 372 U.S. 335, 339-340 (1963). A defendant,

however, may waive this right where his waiver is made knowingly, intelligent, and voluntary.

State v. Gibson, 45 Ohio St.2d 366, 377-378 (1976), citing Faretta v. California, 422 U.S. 806

(1975).

          In order to establish an effective waiver of [the] right to counsel, the trial court
          must make sufficient inquiry [of the defendant] to determine whether [the]
          defendant fully understands and intelligently relinquishes that right.

Gibson, 45 Ohio St.2d 366, at paragraph two of the syllabus.

          {¶7}   In order to ensure that a defendant’s waiver of counsel is made knowingly,

intelligently, and voluntarily, a trial court should determine whether the defendant was advised

of the dangers and disadvantages of self-representation. Gibson at 377. A valid waiver should

be made with “an apprehension of the nature of the charges, the statutory offenses included

within them, the range of allowable punishments thereunder, possible defenses to the charges
                                                 3


and circumstances in mitigation thereof, and all other facts essential to a broad understanding of

the whole matter.” State v. Smith, 9th Dist. Summit No. 23006, 2007-Ohio-51, ¶ 8, quoting State

v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶ 39, quoting Gibson at 377. No single factor is

dispositive. State v. Trikilis, 9th Dist. Medina Nos. 04CA0096-M, 04CA0097-M, 2005-Ohio-

4266, ¶ 13. When reviewing the adequacy of the trial court’s inquiry in the context of a

defendant’s waiver of counsel, this Court reviews the totality of the circumstances. Id. at ¶ 13,

citing State v. Ragle, 9th Dist. Summit No. 22137, 2005-Ohio-590, ¶ 12.

       {¶8}    Moreover, Crim.R. 44(A) provides that “[w]here a defendant charged with a

serious offense is unable to obtain counsel, counsel shall be assigned to represent him at every

stage of the proceedings from his initial appearance before a court through appeal as of right,

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

intelligently, and voluntarily waives his right to counsel.” Crim.R. 44(C) further provides, in

part, that “in serious offense cases the waiver shall be in writing.” This Court has recognized

that “[w]hile a signed waiver is the preferred practice, the absence of a waiver is harmless error if

the trial court has substantially complied with Crim.R. 44(A).” Trikilis at ¶ 14.

       {¶9}    In this case, the parties addressed several issues at the outset of trial, including a

number of motions. Evans had also executed a jury waiver form and the trial court conducted a

brief colloquy regarding the waiver. The trial court then held a brief recess in order for Evans’

co-defendant, Morris, to proffer a statement because she planned to testify against Evans.

       {¶10} After the recess, Evans asked to address the trial court and stated that upon

learning that his wife intended to testify against him, he wanted to represent himself at trial.

Specifically, Evans stated, “I wanted to know if I could represent myself pro se so I can question

the witnesses.” Evans stated that while he believed that trial counsel was “a great attorney[,]” he
                                                 4


thought witnesses would be less likely to misrepresent the facts if he had the opportunity to ask

questions. Evans further asked if trial counsel could sit with him during the trial.

       {¶11} In response, the trial court noted that Evans had a constitutional right to represent

himself but indicated that it would be necessary to “go over a few things[.]” The following

exchange then took place on the record:

       The Court:      While I appreciate that you’re very close to the situation and you
                       know it * * * probably better than anyone, you would agree with
                       me, though, you haven’t gone to law school. * * * You’ve never
                       been a practicing attorney, right?

       Evans:          Yes

       The Court:      You don’t understand or know the rules of evidence, correct?

       Evans:          Right, yes, not -- you know.

       The Court:      And while your emotions are probably running very high with
                       regard to that, * * * this is still something that is very serious. And
                       that’s why we have attorneys. That’s why we have lawyers that
                       represent us. [Trial counsel] has been an attorney for decades.
                       He’s gone to law school. He’s a very, very good lawyer. Has been
                       practicing in this county for many, many years. He’s well-
                       respected by the courts and his colleagues. You have great counsel
                       here for you. I’m not going to force you to allow him to be first
                       chair, but I want you to consider all those things.

       {¶12} Evans indicated that he understood. However, Evans maintained that he was an

“innocent man” and that the testimony at trial would be based “on a lot of lies.” Evans stressed

that with Morris in particular, it would be harder for her to lie if he was asking the questions.

Evans then asked for “a second” to confer with trial counsel. After another recess, the following

exchange occurred on the record:

       Evans:          Taking into consideration what you said and talking to [trial
                       counsel], I still do want to proceed pro se.

       The Court:      Okay. And you understand you’re going to be opening yourself up
                       to many disadvantages as we go through trial. Do you understand
                       that?
                                                5


       Evans:         Disadvantages as far as what?

       The Court:     Well, not knowing the rules of evidence, not necessarily
                      understanding objections, when to make an objection, how to
                      respond to an objection, things of that nature.

       Evans:         Yes. Yeah.

       The Court:     Okay. And I’m going to appoint [trial counsel] to assist you, but,
                      however, he can only be standby counsel. He can’t make any
                      objections. He can’t cross-examine or question any witnesses. He
                      can’t make any statements. He’s only there to confer with you on
                      the side. You understand that?

       Evans:         Yes.

       The Court:     And it’s still your wish to waive your right to counsel?

       Evans:         Yes.

       The Court:     Okay. I find that to be knowingly, voluntarily and intelligently
                      made. But you’ve relinquished that right.

       {¶13} Evans did not execute a written waiver of counsel in this case pursuant to Crim.R.

44(C). As noted above, the absence of a written waiver is harmless if the trial court substantially

complied with Crim.R. 44(A). Trikilis, 2005-Ohio-4266, at ¶ 14.

       {¶14} After reviewing the record, we cannot say that Evans knowingly, intelligently,

and voluntarily waived his right to counsel. Though Evans was seemingly pleased with the

performance of trial counsel, he sought to represent himself after learning that his wife planned

to testify against him. The State acknowledges that Evans’ decision to proceed pro se was a “last

minute decision[.]” The trial court engaged in a discussion with Evans where it emphasized that

trial counsel was a well-respected attorney and that Evans’ lack of familiarity with the

evidentiary rules would put him at a disadvantage at trial. Significantly, however, the trial court

made no mention of the actual charges against Evans or the existence of lesser included offenses.

Furthermore, the trial court did not discuss the range of allowable punishments, nor did it
                                                   6


reference possible defenses. While the trial court noted that the matter was “very serious[,]” it

did not engage in a dialogue that would have given Evans a “broad understanding of the whole

matter[.]” See generally Trikilis at ¶ 17, quoting Martin, 103 Ohio St.3d 385, 2004-Ohio-5471,

at ¶ 43. It follows that under the totality of the circumstances, Evans was not adequately

informed of the dangers of self-representation.

           {¶15} Evans’ first assignment of error is sustained.

                                   ASSIGNMENT OF ERROR II

           APPELLANT’S CONVICTION WAS                   BASED     UPON   INSUFFICIENT
           EVIDENCE AS A MATTER OF LAW[.]

           {¶16} In his second assignment of error, Evans contends that his conviction was not

based on sufficient evidence. Specifically, Evans contends that the State failed to present

evidence demonstrating that he acted with force, stealth, or deception when he entered the Taco

Bell. Evans stresses that his wife had keys to the restaurant due to the fact that she was an

assistant manager and he simply followed her into the premises to get some food. Evans further

maintains that he did not initiate any of the physical confrontations that occurred in the

restaurant. This Court disagrees.

           {¶17} We note that this Court’s resolution of Evans’ first assignment of error renders

moot his third assignment of error. Notably, however, we must still address Evans’ sufficiency

challenge as a reversal on sufficiency grounds would bar retrial. See Trikilis, 2005-Ohio-4266,

at ¶ 19.

           {¶18} Evans was convicted of aggravated burglary in violation of R.C. 2911.11(A)(1),

which states that “[n]o person, by force, stealth, or deception, shall trespass in an occupied

structure * * * when another person other than an accomplice of the offender is present, with
                                                 7


purpose to commit in the structure * * * any criminal offense if * * * [t]he offender inflicts, or

attempts or threatens to inflict physical harm on another[.]”

          {¶19} “Force” is defined as “any violence, compulsion, or constraint physically exerted

by any means upon or against a person or thing.” R.C. 2901.01(A)(1).          While “stealth” is not

defined by the Ohio Revised Code, this Court has defined the term as “any secret, sly or

clandestine act to avoid discovery” when attempting to gain entry into a premises. State v.

Fleming, 9th Dist. Lorain Nos. 15CA010792, 15CA010793, 2017-Ohio-871, ¶ 9. (Internal

quotations and citations omitted.) The term “deception” is defined as “[k]nowingly deceiving

another or causing another to be deceived by any false or misleading representation, by

withholding information, by preventing another from acquiring information, or by any other

conduct, act, or omission that creates, confirms, or perpetuates a false impression in another,

including a false impression as to law, value, state of mind, or other objective or subjective fact.”

R.C. 2913.01(A).

          {¶20} When reviewing the sufficiency of the evidence, this Court must review the

evidence in a light most favorable to the prosecution to determine whether the evidence before

the trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279

(1991).

          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.

Id. at paragraph two of the syllabus.
                                                 8


       {¶21} The State presented evidence at trial that supported the following narrative.

Evans and Morris married in February 2017. The marriage occurred a short time after Evans

ended his romantic involvement with J.J., Morris’s friend and fellow employee at the Taco Bell

in Cuyahoga Falls. There was a lingering tension between Evans, Morris, and J.J. in the days

leading up to the event. Morris’ employment status at Taco Bell had come into question because

her performance had declined and she had not showed up for work as scheduled.

       {¶22} On the evening of April 14, 2017, Evans and Morris drove to Chapel Hill Mall

where they picked up a teenage boy who was related to Evans. The group drove from the mall to

Taco Bell. Morris testified that Evans was upset with J.J. and that he went to Taco Bell “to get

into an altercation.” When Evans, Morris, and the juvenile arrived at the Taco Bell, the dining

room was closed and customers were required to use the drive-through window. The doors to

the dining room were locked. When J.J. saw the group, she initially locked herself in the cooler

for safety and tried to call the police. She exited the cooler after realizing that she could not get

cell phone reception. As an assistant manager, Morris had keys to the restaurant in her car.

Morris testified that Evans took her keys and gave them to the juvenile so that he could open the

door. The juvenile entered first, followed by Evans, and then Morris. Multiple employees were

inside at the time that the group entered the restaurant, including J.J. and the general manager,

A.K. Morris did not have the right to bring anyone into the restaurant at that time.

       {¶23} A.K. was cleaning up when he noticed the group enter and he promptly told them

to leave. Evans pointed out J.J. to the juvenile. The juvenile then went after J.J. and started

throwing punches. A.K. grabbed the juvenile and pushed him toward the front of the store. The

juvenile picked up a plastic container used for collecting coins and threw it at M.S., the woman

who was working the drive-through window.            Evans and the juvenile grabbed M.S. and
                                                  9


attempted to pull her over the counter. When A.K. intervened, Evans and the juvenile punched

A.K. repeatedly. A.K. was bruised and bloodied during the skirmish. M.S. tried to stop the

attack by using a broom against Evans. Evans wrestled the broom away from M.S. and struck

her with it. The intruders left before police arrived.

       {¶24} The evidence presented at trial was sufficient to support Evans’ conviction for

aggravated burglary. We are mindful that with a challenge to the sufficiency of the evidence, we

must construe the evidence in the light most favorable to the State. Jenks, 61 Ohio St.3d at 279.

While Evans maintains that he simply accompanied Morris into the restaurant after she used her

key to open the door, the State presented evidence that Evans slipped Morris’s key to the

juvenile so that they could enter the restaurant and carry out an attack on J.J. This occurred late

at night after the restaurant’s dining room had closed. A chaotic scene unfolded as soon as the

group entered. Though Evans suggests that he merely stood by the counter during the fracas, the

evidence suggests that the juvenile attacked J.J. at Evans’ direction. Evans also worked with the

juvenile in an attempt to pull M.S. over the counter. When A.K. intervened, Evans punched

A.K. repeatedly. This evidence, when construed in the light most favorable to the State, was

sufficient to sustain Evans’ conviction for aggravated burglary.

       {¶25} The second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR III

       APPELLANT’S CONVICTION FOR AGGRAVATED BURGLARY WAS
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶26} In his third assignment of error, Evans contends that his conviction was against

the manifest weight of the evidence. This Court’s resolution of Evans’ first assignment of error

is dispositive of this appeal. Accordingly, we decline to address Evans’ final assignment of error

as it has been rendered moot.
                                                10


                                                III.

       {¶27} Evans’ first assignment of error is sustained. The second assignment of error is

overruled. This Court declines to address the third assignment of error as it has been rendered

moot. The judgment of the Summit County Court of Common Pleas is reversed and the cause

remanded for further proceedings consistent with this decision.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       DONNA J. CARR
                                                       FOR THE COURT
                                          11


SCHAFER, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

JEFFREY N. JAMES, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
