[Cite as State v. Beamon, 2019-Ohio-443.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




 STATE OF OHIO,                                  :

         Appellee,                               :    CASE NO. CA2018-04-065

                                                 :          OPINION
   - vs -                                                    2/11/2019
                                                 :

 WILLIAM COURTNEY BEAMON,                        :

         Appellant.                              :




       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2017-10-1662



Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government
Services Center, 315 High Street, 11th Floor, Hamilton, OH 45011, for appellee

Scott N. Blauvelt, 315 South Monument Avenue, Hamilton, OH 45011, for appellant



        M. POWELL, J.

        {¶ 1} Appellant, William Courtney Beamon, appeals his conviction in the Butler

County Court of Common Pleas for felonious assault.

        {¶ 2} Appellant was indicted in 2017 on one count of felonious assault with a firearm

specification, two counts of having weapons while under disability, and one count of

attempted murder with a firearm specification. The charges stemmed from an incident in
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September 2017 during which Jeremy Jones ("Jones") was shot in the back of the head.

The matter proceeded to a two-day jury trial in March 2018. At trial, Jones testified that

appellant shot him in the head because Jones would not sell drugs with appellant and

appellant was afraid Jones would "snitch him out" to the police. Appellant testified the

shooting was an accident when the firearm fell on the ground.

      {¶ 3} On March 6, 2018, the jury acquitted appellant of attempted murder but found

him guilty of felonious assault and the accompanying firearm specification and having

weapons while under disability.    Upon merging appellant's convictions, the trial court

sentenced appellant to a six-year prison term for felonious assault to be served

consecutively to a three-year mandatory prison term for the firearm specification.

      {¶ 4} Appellant now appeals, raising two assignments of error.

      {¶ 5} Assignment of Error No. 1:

      {¶ 6} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT AND

[ABUSED] ITS DISCRETION IN DENYING APPELLANT'S REQUEST FOR SELF-

REPRESENTATION, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED

STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.

      {¶ 7} Appellant argues the trial court erred in denying his oral request, made at the

outset of the second day of trial, to terminate his assigned defense counsel and represent

himself. Appellant asserts he "provided more than sufficient reason in support of his

request," and thus, the trial court "should only have determined whether Appellant's

decision was being made knowingly, intelligently and voluntarily."

      {¶ 8} The record shows that on the first day of trial, a disagreement arose between

appellant and defense counsel over whether Jones should be released from his subpoena

after being examined and cross-examined during the state's case-in-chief. Appellant voiced

his frustration that defense counsel was not complying with what he wanted her to do.

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Defense counsel indicated that she could obtain the evidence wanted by appellant from

another witness. Ultimately, the trial court released Jones from the state's subpoena but

indicated that Jones was still under defense counsel's subpoena and that if defense counsel

was not able to get the needed evidence from the other witness, she could call Jones to

testify on the second day of trial.

       {¶ 9} As the second day of trial began, the state only had two additional witnesses

to present before resting. Defense counsel informed the trial court that she and appellant

had a serious disagreement over the handling of appellant's defense, that appellant was

berating her, and that he wanted to fire her. During a discussion between the trial court,

defense counsel, and appellant outside of the jury's presence, appellant expressed his

frustration and lack of understanding regarding the multiple charges against him, defense

counsel's failure or refusal to handle his defense in the manner he wanted, including

permitting him to testify, and Jones' absence as a witness on the second day of trial.

       {¶ 10} Finally, appellant stated, "I would like to fire my counsel now. Period. She's

not – I'm telling you everything she's not doing for me, and you're still sitting here and telling

me well, she's trying to the best of her ability, and she's not. I'd like to fire my counsel. Man,

I'll either hire a counsel, or represent myself."

       {¶ 11} The trial court advised appellant that he was not giving the court a reason to

discharge defense counsel and denied appellant's request. Appellant responded that he

would refuse to be present if he could not terminate defense counsel. A sidebar discussion

ensued about the possibility of a mistrial should appellant act out in front of the jury.

Following the sidebar, the trial court asked appellant if he was "going to be able to continue

with this trial and behave" while in court. Appellant replied that he was able to continue with

the trial and that he would behave while in court. The trial then proceeded to a conclusion

without further incident.

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       {¶ 12} "The Sixth Amendment * * * guarantees that a defendant in a state criminal

trial has an independent constitutional right of self-representation and that he may proceed

to defend himself without counsel when he voluntarily, and knowingly and intelligently elects

to do so."   State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, ¶ 71; Faretta v.

California, 422 U.S. 806, 95 S.Ct. 2525 (1975). "If a trial court denies the right to self-

representation, when properly invoked, the denial is per se reversible error." State v.

Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, ¶ 32.

       {¶ 13} "The assertion of the right to self-representation must be clear and

unequivocal." Neyland at ¶ 72. "[C]ourts have held that a request for self-representation is

not unequivocal if it is a 'momentary caprice or the result of thinking out loud,' or the result

of frustration[.]" (Citations omitted.) Id. at ¶ 73. Likewise, a request is not unequivocal if it

is "an 'emotional response.'" State v. Steele, 155 Ohio App.3d 659, 2003-Ohio-7103, ¶ 13

(1st Dist.), quoting Lacy v. Lewis, 123 F.Supp.2d 533, 548 (C.D.Cal.2000). The defendant

must further assert the right in a timely fashion. State v. Kramer, 3d Dist. Defiance No. 4-

15-14, 2016-Ohio-2984, ¶ 7.       "A trial court may deny a defendant's request for self-

representation if it is untimely made." Neyland at ¶ 76.

       {¶ 14} We review a trial court's denial of a request to proceed pro se asserted after

voir dire was completed under an abuse of discretion standard. Kramer at ¶ 8; State v.

Owens, 9th Dist. Summit No. 25389, 2011-Ohio-2503, ¶ 17; State v. Vrabel, 99 Ohio St.3d

184, 2003-Ohio-3193, ¶ 53. An abuse of discretion suggests the trial court's decision is

unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157

(1980).

       {¶ 15} We find that appellant's right to self-representation was not violated because

appellant did not unequivocally and explicitly invoke such right. Rather, a review of the

entire record plainly shows that appellant's request for self-representation was the result of

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frustration and thinking out loud. Appellant's request came on the heels of the verbalization

of his complaints about defense counsel, specifically his dissatisfaction with defense

counsel's handling of the defense. When appellant then told the trial court he wanted to

terminate defense counsel and "either hire a counsel, or represent myself," he was simply

expressing his frustration and not clearly invoking his right to self-representation. Neyland,

2014-Ohio-1914 at ¶ 73; Kramer, 2016-Ohio-2984 at ¶ 10. Appellant's statements denoted

frustration and emotion, as well as uncertainty about representing himself or hiring

substitute counsel. In this sense, appellant's statement was not a clear and unequivocal

request for self-representation.

       {¶ 16} We further find that appellant's request was untimely because it was made on

the second day of trial after the state had nearly completed its case-in-chief. Kramer at ¶

13; Cassano, 2002-Ohio-3751 at ¶ 40; Vrabel, 2003-Ohio-3193 at ¶ 53.

       {¶ 17} Finally, we conclude that appellant "abandoned any intention to represent

himself when he did not pursue the issue of self-representation" after the trial court denied

his request. Cassano at ¶ 42. At no other point during the trial did appellant indicate he

wished to represent himself. Kramer, 2016-Ohio-2984 at ¶ 11. Further, at no point after

his request was denied and the trial resumed did appellant voice concerns about defense

counsel.   Rather, the record reflects that appellant testified on his own behalf and

cooperated with defense counsel. Thus, appellant waived his right to self-representation

by accepting defense counsel's assistance and allowing her to participate in the trial.

Cassano at ¶ 42; Kramer at ¶ 12.

       {¶ 18} We therefore find that appellant's assertion of his right to self-representation

was not clear and unequivocal so as to trigger any further inquiry by the trial court, such as

whether appellant was knowingly and voluntarily waiving his right to counsel. Kramer at ¶

14. Accordingly, the trial court did not abuse its discretion in denying appellant's request to

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represent himself.

       {¶ 19} Appellant's first assignment of error is overruled.

       {¶ 20} Assignment of Error No. 2:

       {¶ 21} THE TRIAL COURT ERRED IN FAILING TO INQUIRE INTO A SUGGESTED

CONFLICT OF INTEREST OF APPELLANT'S TRIAL COUNSEL.

       {¶ 22} By motion filed before trial, defense counsel notified the trial court that a

potential conflict of interest was at issue in that she had represented Jones in an unrelated

criminal matter in 2010. The matter was discussed at a pretrial hearing on February 28,

2018. At the hearing, defense counsel advised the trial court that she had spoken to

appellant regarding the potential conflict of interest and that appellant was willing to waive

any type of conflict between defense counsel, appellant, and Jones. Appellant confirmed

that defense counsel had discussed the matter with him.              Defense counsel and the

prosecutor further advised the trial court that the prosecutor had spoken to Jones who was

also willing to waive any conflict. The trial court then inquired of appellant, "you're okay with

[defense counsel] proceeding then to represent you knowing these issues that she has

discussed with you? She indicated you're going to waive any conflict; is that correct?"

Appellant replied, "Yeah, Your Honor."

       {¶ 23} On appeal, appellant argues that the trial court failed to adequately discharge

its affirmative duty to inquire into the conflict of interest. Specifically, appellant asserts that

the trial court should have engaged in a more detailed inquiry regarding the nature and

extent of defense counsel's conflict of interest, and determined whether a conflict of interest

actually existed.

       {¶ 24} This case involves successive representation which occurs where defense

counsel has previously represented a codefendant or trial witness. State v. Stephenson,

10th Dist. Franklin No. 13AP-609, 2014-Ohio-670, ¶ 11. "Simultaneous and successive

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representation differs materially because in the latter, the attorney is no longer beholden to

the former client." Id. at ¶ 13. "As such, successive representation does not give rise to

the same presumption of prejudice as simultaneous representation." Id. It is more difficult

for a defendant to show that defense counsel actively represented conflicting interests in

cases of successive rather than simultaneous representation. State v. Buck, 1st Dist.

Hamilton No. C-160320, 2017-Ohio-8242, ¶ 91.

       {¶ 25} "Both defense counsel and the trial court are under an affirmative duty to

ensure that a defendant's representation is conflict-free." State v. Dillon, 74 Ohio St.3d 166,

167-168 (1995). "[W]here a trial court knows or reasonably should know of an attorney's

possible conflict of interest in the representation of a person charged with a crime, the trial

court has an affirmative duty to inquire whether a conflict of interest actually exists." State

v. Gillard, 64 Ohio St.3d 304, 311 (1992). "Where a trial court breaches its affirmative duty

to inquire, a criminal defendant's rights to counsel and to a fair trial are impermissibly

imperiled and prejudice or 'adverse effect' will be presumed." Id. at 312.

       {¶ 26} Yet, even then, a trial court's failure to inquire into a possible conflict of interest

does not transform a possible conflict into an actual one nor does it automatically require a

retrial, for such retrial would be premature. State v. Gillard, 78 Ohio St.3d 548, 552 (1997)

("Gillard II"); State v. Laghaoui, 12th Dist. Warren No. CA2017-06-098, 2018-Ohio-2261, ¶

21. "Rather, reversal is mandated only if an actual conflict is found." Gillard II at 552. This

is because "the United States Constitution is violated by an actual conflict of interest, not a

possible one." Id., citing Cuyler v. Sullivan, 446 U.S. 335, 348-350, 100 S.Ct. 1708 (1980);

and State v. Manross, 40 Ohio St.3d 180, 182 (1988).

       {¶ 27} In order to establish that an actual conflict of interest existed, appellant must

demonstrate two elements. Laghaoui at ¶ 22. First, appellant must show that "'some

plausible alternative defense strategy or tactic might have been pursued.'" Gillard II at 552,

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quoting United States v. Fahey, 769 F.2d 829, 836 (1st Cir.1985). Second, appellant must

"'establish that the alternative defense was inherently in conflict with or not undertaken due

to the attorney's other loyalties or interests.'" Id., quoting Fahey at 836. Whether an actual

conflict of interest existed is a mixed question of law and fact, subject to de novo review on

appeal. Gillard II at 552. De novo appellate review means that this court independently

reviews the record and affords no deference to a trial court's decision. Laghaoui at ¶ 22.

       {¶ 28} After a thorough review of the record, even if this court were to assume the

trial court failed to adequately or otherwise discharge its affirmative duty to inquire into the

potential conflict of interest, appellant has failed to demonstrate that an actual conflict of

interest existed. Appellant does not identify any plausible alternative defense or tactic that

defense counsel might have pursued at trial, nor does appellant allege that some other

plausible alternative defense or tactic was not undertaken due to defense counsel's other

loyalties or interests. Simply stated, there is no evidence in the record to suggest the fact

defense counsel represented Jones in an unrelated criminal matter eight years before

appellant's trial impacted the defense strategy and tactics defense counsel pursued at trial;

namely that the firearm accidentally discharged when it fell onto the ground and that Jones

was not a credible witness and victim.

       {¶ 29} Appellant has failed to establish that an actual conflict of interest existed in

this case. Moreover, appellant has not demonstrated that he was prejudiced as a result of

defense counsel's representation of Jones eight years earlier. The trial court therefore did

not err in failing to further investigate the matter. See Buck, 2017-Ohio-8242; Laghaoui,

2018-Ohio-2261.

       {¶ 30} Appellant's second assignment of error is overruled.




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{¶ 31} Judgment affirmed.


S. POWELL, P.J., and PIPER, J., concur.




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