[Cite as State v. Beightler, 2019-Ohio-4522.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HARDIN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 6-18-11

        v.

STEPHEN ARTHUR BEIGHTLER,                                  OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Hardin County Common Pleas Court
                           Trial Court No. 20182084 CRI

                                       Judgment Affirmed

                            Date of Decision: November 4, 2019




APPEARANCES:

        Howard A. Elliott for Appellant

        Jason M. Miller for Appellee
Case No. 6-18-11


PRESTON, J.

       {¶1} Defendant-appellant, Stephen A. Beightler (“Beightler”), appeals the

November 13, 2018 judgment of the Hardin County Court of Common Pleas. For

the reasons that follow, we affirm.

       {¶2} This case arises from a July 17, 2018 incident in which Beightler struck

his father, Mark Beightler (“Mark”). Christopher Beightler (“Christopher”), Mark’s

son and Beightler’s brother, called the police after witnessing Beightler attack Mark.

When the responding officer, Deputy Mason Treen (“Deputy Treen”), arrived at the

scene, he separated Mark, Christopher, and Beightler. Shortly thereafter, additional

officers arrived on the scene, and Deputy Treen placed Beightler in handcuffs.

Deputy Treen then led Beightler to Deputy Treen’s patrol vehicle. At that time,

Beightler made an incriminating statement to Deputy Treen.

       {¶3} On August 22, 2018, the Hardin County Grand Jury indicted Beightler

on one count of felonious assault in violation of R.C. 2903.11(A)(1), a second-

degree felony.    (Doc. No. 2).       On August 30, 2018, Beightler appeared for

arraignment. (Doc. No. 6). At the arraignment hearing, Beightler informed the trial

court that he wished to proceed pro se. (Id.). Beightler then entered a plea of not

guilty to the charge in the indictment. (Id.). That same day, the State filed a motion

for a competency evaluation of Beightler. (Doc. No. 5).




                                          -2-
Case No. 6-18-11


       {¶4} On September 24, 2018, Beightler filed a motion to suppress evidence.

(Doc. No. 13). Specifically, Beightler sought the suppression of Deputy Treen’s

body camera footage, which included an incriminating statement Beightler made to

the officer. (Id.). On October 17, 2018, a hearing was held on Beightler’s motion

to suppress. (Doc. No. 30). At the conclusion of the hearing, the trial court granted

the motion in part and ordered the suppression of a portion of the video. (Id.); (Oct.

17, 2018 Tr. at 46-47).

       {¶5} On October 4, 2018, the trial court conducted a hearing on the State’s

motion for competency and determined that Beightler was competent to stand trial.

(Doc. No. 24). That same day, Beightler executed a written waiver of counsel after

the trial court conducted a colloquy with Beightler to ensure that he was knowingly,

intelligently, and voluntarily waiving his right to counsel. (Doc. No. 23); (Oct. 4,

2018 Tr. at 2-11). The trial court appointed standby counsel to assist Beightler.

(Doc. No. 23). On October 9, 2018, the trial court filed the written waiver of counsel

and warnings concerning self-representation. (Id.).

       {¶6} The case proceeded to a jury trial on November 8-9, 2018 during which

Beightler represented himself. (Doc. No. 76). Standby counsel was present at the

trial and available to consult with Beightler throughout the proceedings. (Id.). On

November 9, 2018, the jury found Beightler guilty of felonious assault. (Id.); (Doc.

No. 74). Immediately following the trial, the trial court sentenced Beightler to eight


                                         -3-
Case No. 6-18-11


years in prison. (Doc. No. 76). The trial court filed its judgment entry of conviction

and sentence on November 13, 2018. (Id.).

       {¶7} On November 21, 2018, Beightler filed his notice of appeal. (Doc. No.

79). He raises two assignments of error.

                             Assignment of Error No. I

       The trial court committed personal error when it failed to
       suppress all of the statements of the Defendant made after he had
       been handcuffed, detained, as well as having reserve [sic] the
       question [sic] and others present at the incident, all prior to him
       having been given a so called Miranda warning, or Miranda v.
       Arizona.

       {¶8} In his first assignment of error, Beightler argues that the trial court erred

by failing to suppress all of the statements he made after he was detained by police

but before he received Miranda warnings.

       {¶9} “Appellate review of a motion to suppress presents a mixed question of

law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At a

suppression hearing, the trial court assumes the role of trier of fact and, as such, is

in the best position to evaluate the evidence and the credibility of witnesses. Id. See

also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a

motion to suppress, deference is given to the trial court’s findings of fact so long as

they are supported by competent, credible evidence. Burnside at ¶ 8, citing State v.

Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s conclusions of

law, however, our standard of review is de novo; therefore, we must decide whether

                                          -4-
Case No. 6-18-11


the facts satisfy the applicable legal standard. Id., citing State v. McNamara, 124

Ohio App.3d 706, 710 (4th Dist.1997).

       {¶10} “The Fifth Amendment to the U.S. Constitution provides a privilege

against self-incrimination.” State v. Edmond, 10th Dist. Franklin No. 15AP-574,

2016-Ohio-1034, ¶ 11, citing State v. Hall, 179 Ohio App.3d 727, 2008-Ohio-6228,

¶ 12 (10th Dist.), citing Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136

(1984). “To protect this right, the United States Supreme Court has held that ‘the

prosecution may not use statements, whether exculpatory or inculpatory, stemming

from custodial interrogation of the defendant unless it demonstrates the use of

procedural safeguards effective to secure the privilege against self-incrimination.’”

Id., quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602 (1966). “Thus,

Miranda warnings are required when a suspect is subjected to custodial

interrogation.” Id., citing State v. Garnett, 10th Dist. Franklin No. 09AP-1149,

2010-Ohio-5865, ¶ 30.       “Custodial interrogation is defined in Miranda as

‘questioning initiated by law enforcement officers after a person has been taken into

custody or otherwise deprived of his freedom of action in any significant way.’”

Id., quoting Miranda at 444.

       {¶11} Following the hearing on Beightler’s motion to suppress, the trial court

ordered the suppression of Beightler’s statements and Deputy Treen’s body camera

footage immediately following Beightler’s statement, “I beat the shit out of him.”


                                         -5-
Case No. 6-18-11


This single statement forms the basis of Beightler’s first assignment of error.

Beightler contends that the trial court erred by not suppressing this statement as it

was made while he was in custody but before Beightler had received Miranda

warnings. For the reasons that follow, we disagree.

       {¶12} During the suppression hearing, Deputy Treen, a sheriff’s deputy with

the Hardin County Sheriff’s office, testified that he was dispatched to Mark’s

residence for a complaint of a domestic physical altercation. (Oct. 17, 2018 Tr. at

25-26). Deputy Treen testified that when he arrived at Mark’s residence, Beightler

met Deputy Treen at the door. (Id. at 26-27). Deputy Treen observed “chaos” in

the house, indicating that a physical confrontation had occurred. (Id. at 28). Deputy

Treen also observed injuries to Mark. (Id. at 28-29). Deputy Treen testified that he

separated Mark, Christopher, and Beightler into different areas of the house and

patted them down for weapons. (Id. at 31-32).

       {¶13} Deputy Treen testified that after speaking briefly to Mark, he believed

that Beightler was the aggressor. (Id. at 32). Deputy Treen handcuffed Beightler

and informed him that he was being “detained.” (Id. at 32-33). Deputy Treen

escorted Beightler out of the house and to Deputy Treen’s patrol vehicle. (Id. at 33-

34). Deputy Treen testified that he placed Beightler in the right rear seat of his

patrol vehicle. (Id. at 34). Thereafter, Deputy Treen opened the front left door of

his patrol vehicle and was in the process of rolling down the window to allow fresh


                                         -6-
Case No. 6-18-11


air to circulate in the vehicle when he heard Beightler state, “I beat the shit out of

him.” (Id.). Deputy Treen testified that the statement was offered spontaneously

and was not made in response to any question he posed to Beightler. (Id. at 34-35).

Defendant’s Exhibit A was identified as Deputy Treen’s body camera footage and

was played in open court. (Id. at 36-39). (See Defendant’s Ex. A). Defendant’s

Exhibit A was consistent with Deputy Treen’s testimony. (See Defendant’s Ex. A).

         {¶14} At the conclusion of the hearing, the trial court granted Beightler’s

motion for suppression in part, and ordered the suppression of Deputy Treen’s body

camera footage immediately following Beightler’s statement, “I beat the shit out of

him.”1 (Oct. 17, 2018 Tr. at 46-47); (Doc. No. 30).

         {¶15} Beightler argues that because the statement was made while he was in

custody, but before he was given Miranda warnings, it was therefore inadmissible.

We disagree.

         {¶16} “‘The fundamental import of the privilege [against self-incrimination]

while an individual is in custody is not whether he is allowed to talk to the police

without the benefit of warnings and counsel, but whether he can be interrogated.’”

(Emphasis sic.) State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, ¶ 56, quoting

Miranda, 384 U.S. at 478. “‘Volunteered statements of any kind are not barred by



1
  At the suppression hearing, the State stipulated to the suppression of all of Beightler’s statements following
the incriminating statement at issue. (See Oct. 27, 2018 Tr. at 44).


                                                      -7-
Case No. 6-18-11


the Fifth Amendment and their admissibility is not affected by [the holding in

Miranda].’”    Id., quoting Miranda at 478. “‘What are now commonly known as

Miranda warnings are intended to protect a suspect from the coercive pressure

present during a custodial interrogation.’” Id. at ¶ 57, quoting Cleveland v. Oles,

152 Ohio St.3d 1, 2017-Ohio-5834, ¶ 9, citing Miranda at 469. “Thus, Miranda

warnings are required ‘only when a suspect is subjected to both custody and

interrogation.’” Id. at ¶ 56, quoting State v. Neyland, 139 Ohio St.3d 353, 2014-

Ohio-1914, ¶ 119, citing Miranda at 444.

       {¶17} Here, the trial court concluded that suppression of Beightler’s

incriminating statement was not warranted under Miranda because Beightler was

not subject to interrogation. In support of its conclusion that Beightler was not

subject to interrogation, the trial court found that the statement was not made in

response to a question by Deputy Treen. (Oct. 17, 2018 Tr. at 47). The record

reveals that the trial court’s findings are supported by competent, credible evidence.

       {¶18} Nevertheless, Beightler argues that even in the absence of express

questioning, he was subject to custodial interrogation under Miranda. In support of

his position, Beightler asserts that he was taken into custody and the officers present

at the scene had already started questioning other witnesses at the time Beightler

made his statement. Beightler asserts that because he was detained as a suspect, he




                                         -8-
Case No. 6-18-11


should have been given Miranda warnings even in the absence of express

interrogation. We disagree.

       {¶19} First, as stated above, Miranda warnings must be given when an

individual is subject to custodial interrogation.       Thus, in the absence of

interrogation, Beightler was not subject to custodial interrogation for the purposes

of Miranda even if he was in custody at the time he made the incriminating

statement. “‘Interrogation’ includes express questioning as well as ‘any words or

actions on the part of the police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to elicit an incriminating

response from the suspect.’” State v. Strozier, 172 Ohio App.3d 780, 2007-Ohio-

4575, ¶ 20 (2d Dist.), quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct.

1682 (1980). However, “‘“[i]nterrogation,” as conceptualized in the Miranda

opinion, must reflect a measure of compulsion above and beyond that inherent in

custody itself.’” Id., quoting Innis at 300. “Statements given before questioning

has begun must be considered voluntarily given and not made during a ‘custodial

interrogation.’” State v. Andrews, 3d Dist. Allen No. 1-05-70, 2006-Ohio-3764, ¶

20, citing State v. McGuire, 80 Ohio St.3d 390, 401 (1997), citing State v. Roe, 41

Ohio St.3d 18, 22 (1989). “Moreover, ‘[o]fficers do not interrogate a suspect simply

by hoping that he will incriminate himself.’” Id., quoting Arizona v. Mauro, 481

U.S. 520, 529, 107 S.Ct. 1931 (1987). “An unsolicited and spontaneous statement


                                         -9-
Case No. 6-18-11


* * * is not the product of interrogation, so Miranda does not apply.” Neyland, 139

Ohio St.3d 353, 2014-Ohio-1914, at ¶ 119.

       {¶20} Here, the record indicates that Beightler’s incriminating statement was

unsolicited and spontaneous. Moreover, a review of the record does not reveal any

words or actions on the part of Deputy Treen that he should have known were

reasonably likely to elicit an incriminating response from the Beightler. Thus, we

find that Beightler was not subject to custodial interrogation. Because Beightler

was not subject to custodial interrogation at the time he made the incriminating

statement, Miranda does not apply. Therefore, the trial court did not err by

admitting Beightler’s incriminating statement.

       {¶21} Accordingly, Beightler’s first assignment of error is overruled.

                            Assignment of Error No. II

       The trial court errored [sic] in permitting the Defendant-
       Appellant to engage in pro se representation where it failed to
       make sufficient inquiry of the Defendant-Appellant as to his
       understanding of charges against him and potential defenses and
       procedure, and insufficiently cautioned him as to the potential
       hazards of self-representation.

       {¶22} In his second assignment of error, Beightler argues that the trial court

failed to conduct an adequate inquiry before granting his request to exercise his right

to self-representation. Specifically, Beightler argues that the trial court failed to

detail the affirmative defenses available to him. Additionally, Beightler argues that



                                         -10-
Case No. 6-18-11


the trial court erred by failing to review the elements of the offense with him prior

to the execution of his waiver of counsel.

       {¶23} We review de novo whether a defendant knowingly, voluntarily, and

intelligently waived his right to counsel. State v. Yeager, 9th Dist. Summit Nos.

28604 and 28617, 2018-Ohio-574, ¶ 7, quoting State v. Ott, 9th Dist. Summit No.

27953, 2017-Ohio-521, ¶ 5; Lakewood v. Lane, 8th Dist. Cuyahoga No. 104534,

2017-Ohio-1039, ¶ 10, quoting Columbus v. Abrahamson, 10th Dist. Franklin No.

13AP-1077, 2014-Ohio-3930, ¶ 6; State v. Alexander, 4th Dist. Ross No.

15CA3492, 2016-Ohio-5015, ¶ 4, citing State v. Mootispaw, 4th Dist. Highland No.

09CA33, 2010-Ohio-4772, ¶ 21. See State v. Griffin, 10th Dist. Franklin No. 10AP-

902, 2011-Ohio-4250, ¶ 26 (noting that “[i]n the leading cases on the issue of waiver

of the right to counsel, the Supreme Court of Ohio appears to have undertaken a de

novo review without expressly reciting this standard of review”). “De novo review

is independent, without deference to the lower court’s decision.” State v. Hudson,

3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27, citing Ohio Bell Tel. Co. v. Pub.

Util. Comm. of Ohio, 64 Ohio St.3d 145, 147 (1992).

       {¶24} “‘The Sixth Amendment to the United States Constitution provides

that an accused shall have the right “to have the Assistance of Counsel for his

defense.”’” State v. Logan, 3d Dist. Allen No. 1-16-28, 2017-Ohio-8932, ¶ 34,

quoting State v. Owens, 3d Dist. Allen No. 1-07-66, 2008-Ohio-4161, ¶ 9, quoting


                                        -11-
Case No. 6-18-11


the Sixth Amendment to the United States Constitution. However, “the United

States Supreme Court has also recognized that the Sixth Amendment right to the

assistance of counsel implicitly embodies a ‘correlative right to dispense with a

lawyer’s help.’” State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶ 23,

quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236

(1942). “While a defendant has a right to counsel, the defendant may also waive

that right when the waiver is voluntary, knowing, and intelligent.” State v. Petaway,

3d Dist. Logan No. 8-05-11, 2006-Ohio-2941, ¶ 8, citing State v. Gibson, 45 Ohio

St.2d 366 (1976), paragraph one of the syllabus, citing Faretta v. California, 422

U.S. 806, 95 S.Ct. 2525 (1975).

       {¶25} “In order to establish an effective waiver of right to counsel, the trial

court must make sufficient inquiry to determine whether defendant fully

understands and intelligently relinquishes that right.” Gibson at paragraph two of

the syllabus.

       [F]or the defendant’s waiver of counsel to be valid “‘such waiver must

       be made with an apprehension of the [nature of the] charges, the

       statutory offenses included within them, the range of allowable

       punishments thereunder, possible defenses to the charges and

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

       broad understanding of the whole matter.’”


                                        -12-
Case No. 6-18-11


Owens at ¶ 10, quoting Gibson at 377, quoting Von Moltke v. Gillies, 332 U.S. 708,

724, 68 S.Ct. 316 (1948). However,

       the United States Supreme Court “ha[s] not * * * prescribed any

       formula or script to be read to a defendant who states that he elects to

       proceed without counsel. The information a defendant must possess

       in order to make an intelligent election * * * will depend on a range

       of case-specific factors, including the defendant’s education or

       sophistication, the complex or easily grasped nature of the charge, and

       the stage of the proceeding.”

State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶ 101, quoting Iowa v.

Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379 (2004). Stated differently, “the sufficiency

of the trial court’s inquiry will depend on the totality of the circumstances * * *.”

State v. Edmonds, 12th Dist. Warren No. CA2014-03-045, 2015-Ohio-2733, ¶ 26,

citing Akron v. Ragle, 9th Dist. Summit No. 22137, 2005-Ohio-590, ¶ 11-12. See

Alexander at ¶ 4 (“[A]ppellate courts should * * * independently examine the record

to determine whether the totality of circumstances demonstrates a knowing,

intelligent, and voluntary waiver of the defendant’s right to counsel.”), citing

Mootispaw at ¶ 21.

       {¶26} In addition, “Crim.R. 44(A) provides that a criminal defendant

charged with a serious offense is entitled to counsel ‘unless the defendant, after


                                        -13-
Case No. 6-18-11


being fully advised of his right to assigned counsel, knowingly, intelligently, and

voluntarily waives his right to counsel.’” State v. Schleiger, 141 Ohio St.3d 67,

2014-Ohio-3970, ¶ 20, quoting Crim.R. 44(A). Further, “Crim.R. 44(C) provides

that ‘[w]aiver of counsel shall be in open court and the advice and waiver shall be

recorded as provided in [Crim.R. 22]’” and that “in serious offense cases the waiver

shall be in writing.” Id., quoting Crim.R. 44(C). Only substantial compliance with

Crim.R. 44(A) is required. See id., quoting Martin at ¶ 39.

       {¶27} Although a defendant’s waiver of his right to counsel and decision to

invoke his right of self-representation are afforded tremendous respect and

deference, the right of self-representation is not absolute, and it is subject to some

limitation on its invocation and exercise. See State v. Buchanan, 8th Dist. Cuyahoga

No. 104500, 2017-Ohio-1361, ¶ 12, citing Indiana v. Edwards, 554 U.S. 164, 128

S.Ct. 2379 (2008). See also United States v. Frazier-El, 204 F.3d 553, 559 (4th

Cir.2000) (“At bottom, the * * * right to self-representation is not absolute, and ‘the

government’s interest in ensuring the integrity and efficiency of the trial at times

outweighs the defendant’s interest in acting as his own lawyer.’”), quoting Martinez

v. Court of Appeal of California, 528 U.S. 152, 162, 120 S.Ct. 684 (2000). First,

“‘[t]he assertion of the right to self-representation must be clear and unequivocal.’”

State v. Kramer, 3d Dist. Defiance No. 4-15-14, 2016-Ohio-2984, ¶ 6, quoting

Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, at ¶ 72, citing State v. Dean, 127


                                         -14-
Case No. 6-18-11


Ohio St.3d 140, 2010-Ohio-5070, ¶ 68 and State v. Cassano, 96 Ohio St.3d 94,

2002-Ohio-3751, ¶ 38. Second, “‘[t]he defendant must also assert the right [to self-

representation] in a timely fashion.’” Id. at ¶ 7, quoting State v. Steele, 155 Ohio

App.3d 659, 2003-Ohio-7103, ¶ 14. “‘A trial court may deny a defendant’s request

for self-representation if it is untimely made.’” Id., quoting Neyland at ¶ 76, citing

Cassano at ¶ 40, United States v. Young, 287 F.3d 1352, 1354 (11th Cir.2002), Wood

v. Quarterman, 491 F.3d 196, 202 (5th Cir.2007) and United States v. Smith, 413

F.3d 1253, 1281 (10th Cir.2005).

       {¶28} Finally, trial courts may constitutionally deny a defendant his right to

self-representation when there are lingering doubts concerning the defendant’s

competency to represent himself. The United States Supreme Court has stated that

“the Constitution permits States to insist upon representation by counsel for those

competent enough to stand trial * * * but who still suffer from severe mental illness

to the point where they are not competent to conduct trial proceedings by

themselves.” Edwards at 178.

       {¶29} At the competency hearing, Beightler stated that he has a GED. (Oct.

4, 2018 Tr. at 2). Beightler further stated that he has a paralegal credential from

Wagner College. (Id.). Beightler also indicated that he has experience representing

himself in legal proceedings. (Id. at 3). Beightler stated that he represented himself

in a legal proceeding in Logan County. (Id.). Beightler also stated that he has


                                        -15-
Case No. 6-18-11


represented himself in the federal court system and boasted that he has filed briefs

with the United States Supreme Court. (Id.).

       {¶30} The trial court then reviewed the written waiver of counsel with

Beightler. (Id. at 4-5). (See Doc. No. 23). The trial court notified Beightler that if

he chose to represent himself, he would be held to the same rules of evidence and

procedure as a lawyer and his lack of knowledge of the rules of evidence and

procedure would not prevent the court from enforcing the rules. (Oct. 4, 2018 Tr.

at 5). Further, the trial court notified Beightler that because of his lack of knowledge

of the rules of evidence, he would not be able to ask the questions he desires of

witnesses “if the question [was] not formed appropriately or the area of inquiry

[was] not proper.” (Id. at 5). The trial court informed Beightler that it would not

function as his lawyer and would not give him any assistance. (Id.).

       {¶31} The trial court reminded Beightler that it appointed standby counsel to

assist him. (Id. at 5-6). The trial court informed Beightler that standby counsel was

“ready, willing, * * * able, and available to defend [him].” (Id. at 6). The trial court

told Beightler that standby counsel would be present in the courtroom and would be

available to answer Beightler’s questions. (Id. at 7). The trial court then stated, “I

want you to understand this[,] Mr. Beightler, representing yourself may impart a

negative impression upon the jury * * *.” (Id.).




                                         -16-
Case No. 6-18-11


      {¶32} The trial court informed Beightler that the charge against him was

felonious assault, which carries a maximum prison sentence of 8 years and a

maximum fine of $15,000. (Id.). The trial court told Beightler that a conviction of

felonious assault “carries a presumption of prison incarceration.” (Id. at 7-8).

Moreover, the trial court informed Beightler:

      [T]here may be certain defenses available to you. These defenses are

      known as affirmative defenses. It is your burden to prove these

      defenses.    There are other possible defenses called mitigating

      defenses. Your lack of knowledge of their existence or the appropriate

      procedure for introducing them will not be grounds for an appeal if

      you miss them.

        ***

      Now concerning affirmative defenses, * * * for the record, you have

      already filed a number of motions and even some amended motions.

      Some of those motions speak, in fact, to affirmative defenses, so I

      have seen from the file that you have at least a nodding acquaintance

      of what affirmative defenses might be. However, I want you to

      understand that these issues can be extremely complicated in the law

      and therefore whether you have sufficient knowledge * * * without

      many years of experience of a trial attorney or somebody admitted to


                                       -17-
Case No. 6-18-11


       the Bar, I find [it] to be just very concerning for your well-being.

       However you understand that you have a Constitution[al] right to

       represent yourself. I would never do anything to not allow you to

       represent yourself if you feel that that’s in your best interest. * * *

       [H]owever[,] * * * I believe it is not in your best interest, Mr.

       Beightler, but I will not stand in your way if you choose to do that.

(Id. at 8-9).

       {¶33} Finally, the trial court told Beightler that he has a right to appeal his

case if he was convicted. (Id. at 8). The trial court warned Beightler that if he failed

to preserve an issue at trial, he may waive the issue for appeal. (Id.). Beightler then

executed the written waiver of counsel. (Id. at 10). (See Doc. No. 23). Thereafter,

the trial court found that Beightler knowingly, voluntarily, and intelligently waived

his right to counsel and accepted Beightler’s waiver of his right to counsel. (Oct. 4,

2018 Tr. at 10). (See Doc. No. 23).

       {¶34} We conclude that Beightler’s waiver of his right to trial counsel was

knowing, intelligent, and voluntary—that is, the trial court substantially complied

with the requirements of Crim.R. 44(A) because it sufficiently inquired whether

Beightler fully understood and relinquished his right to counsel and obtained from

Beightler a written waiver of counsel.




                                         -18-
Case No. 6-18-11


       {¶35} Beightler’s sole argument is that the trial court did not make sufficient

inquiry to determine whether he fully understood and relinquished his right to

counsel. Specifically, Beightler argues that the trial court did not apprise him of the

elements of the offense and the possible affirmative defenses available to him.

Beightler contends that to comply with Gibson, a trial court must explicitly recite

the elements of the charge to the defendant and provide the defendant with the

specific affirmative defenses available to him.

       {¶36} In support of his argument, Beightler relies on State v. Robinson, 8th

Dist. Cuyahoga No. 106721, 2018-Ohio-5036. In Robinson, the Eighth District

Court of Appeals determined that the trial court failed to give the defendant an

adequate explanation of the natures of the charges because it did not review the

elements of each charge with the defendant. Id. at ¶ 13. Further, the court

determined that the trial court did not discuss possible defenses and mitigating

circumstances with the defendant even in broad terms. Id. at ¶ 14. The court also

determined that the trial court compounded its error by improperly advising the

defendant of the role of standby counsel. Id. at ¶ 16-18. As a result, the court

vacated the defendant’s convictions and remanded the matter for a new trial. Id. at

20.

       {¶37} However, not only is Robinson distinguishable from the present case,

it is also not controlling. First, as detailed above, the Ohio Supreme Court held that


                                         -19-
Case No. 6-18-11


there is not a “prescribed * * * formula or script to be read to a defendant who states

that he elects to proceed without counsel.” Johnson, 112 Ohio St.3d 210, 2006-

Ohio-6404, at ¶ 101, quoting Tovar, 541 U.S. at 88. Rather, “‘[t]he information a

defendant must possess in order to make an intelligent election * * * will depend on

a range of case-specific factors, including the defendant’s education or

sophistication, the complex or easily grasped nature of the charge, and the stage of

the proceeding.’” Id. quoting Tovar at 88. Accordingly, this court has consistently

found that the sufficiency of the trial court’s inquiry is determined by the totality of

the circumstances. See State v. Godley, 3d Dist. Hancock No. 5-17-29, 2018-Ohio-

4253, ¶ 44; State v. Andrews, 2006-Ohio-3764, at ¶ 15.

       {¶38} Here, the trial court informed Beightler that there may be affirmative

defenses and mitigating defenses available to him. Moreover, the trial court

referenced that Beightler had filed pro se motions for acquittal and to instruct the

jury on self-defense on September 24, 2018. In his motion for acquittal and the

supporting brief, Beightler implored the trial court to dismiss his case on the grounds

that his actions on July 17, 2018 were in self-defense. (Doc. No. 17). In his

amended brief in support of his motion for acquittal, Beightler specifically

referenced the burden of proof for the affirmative defense of self-defense. (Doc.

No. 19). Beightler also specifically referenced the intent element of felonious

assault and the duty to retreat. (Id.). Likewise, Beightler referenced the affirmative


                                         -20-
Case No. 6-18-11


defense of self-defense in his motion to instruct the jury on self-defense. (Doc. No.

12). Although the trial court dismissed Beightler’s motions on the grounds that they

concerned issues properly raised at the time of trial, Beightler’s motion for acquittal

and motion to instruct the jury on self-defense establish that Beightler was aware of

the affirmative defenses available to him, specifically, the affirmative defense of

self-defense. (See Doc. Nos. 12, 17, 19, 30). Further, the trial court’s reference to

Beightler’s aforementioned motions establishes that the trial court knew that

Beightler was aware of the affirmative defenses available to him.           (See id.).

Moreover, “[i]t is not necessary that the court ‘“undertake pseudo-legal

representation of a defendant by specifically advising him of possible viable

defenses or mitigating circumstances * * *.”’” Yeager, 2018-Ohio-574, at ¶ 6,

quoting State v. Bloodworth, 9th Dist. Summit No. 26346, 2013-Ohio-248, ¶ 12,

quoting Ragle, 2005-Ohio-590, at ¶ 12. Thus, even though the trial court did not

explicitly list the affirmative defenses available to Beightler, the record establishes

that Beightler was aware of the affirmative defenses and mitigating defenses

available to him and that the trial court adequately informed him of said defenses.

See Logan, 2017-Ohio-8932, at ¶ 40 (“Although the trial court did not explicitly

state that these are ‘the possible defenses to the charges and circumstances in

mitigation thereof’ in ascertaining whether [the defendant’s] waiver of counsel was




                                         -21-
Case No. 6-18-11


knowing, intelligent, and voluntary, that does not mean [the defendant’s] waiver

was not valid.”).

       {¶39} Furthermore, while the trial court did not expressly state the elements

of the offense at the October 4, 2018 hearing, the trial court read the felonious

assault statute, at Beightler’s request, during his August 29, 2018 arraignment

hearing. (Aug. 29, 2018 Tr. at 3). Additionally, Beightler expressly referenced the

“intent” element in his aforementioned motion for acquittal. (See Doc. No. 19).

       {¶40} Finally, Beightler stated that he holds a paralegal credential. Beightler

also expressed that he has represented himself in several previous legal proceedings.

See Logan at ¶ 40 (concluding that Logan’s decision to waive his right to counsel

was intelligent, knowing, and voluntary, in part, because he had previous experience

representing himself in a criminal proceeding).

       {¶41} Therefore, we conclude that the trial court substantially complied with

Crim.R. 44(A) and that, based on the totality of the circumstances, Beightler

knowingly, intelligently, and voluntarily waived his right to counsel. See Godley,

2018-Ohio-4253, at ¶ 44.

       {¶42} Accordingly, Beightler’s second assignment of error is overruled.




                                        -22-
Case No. 6-18-11


       {¶43} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

SHAW and WILLAMOWSKI, J.J., concur.

/jlr




                                        -23-
