[Cite as State v. Roland, 2013-Ohio-1382.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :     CASE NO. CA2012-05-104

                                                   :           OPINION
   - vs -                                                       4/8/2013
                                                   :

ROBIN ROLAND,                                      :

        Defendant-Appellant.                       :



                CRIMINAL APPEAL FROM BUTLER COUNTY AREA II COURT
                               Case No. 11CRB01187



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Scott Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant



        RINGLAND, P.J.

        {¶ 1} Defendant-appellant, Robin Roland, appeals his conviction for criminal trespass

from the Butler County Area II Court.

        {¶ 2} On December 1, 2011, appellant allegedly entered onto the property of his ex-

wife after his ex-wife and minor daughter had told him he was not permitted to do so.

Appellant was subsequently charged with criminal trespass, a misdemeanor of the fourth

degree in violation of R.C. 2911.21.
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       {¶ 3} Appellant completed an affidavit of indigency form and was appointed counsel

to represent him in a bench trial scheduled for January 11, 2012. At the bench trial, counsel

for appellant requested and was granted permission to withdraw from representation based

on a breakdown of communication with appellant. The matter then proceeded to trial with

appellant representing himself pro se.

       {¶ 4} Following multiple continuances in progress during trial, first to January 25,

2011, and then to May 1, 2011, appellant was found guilty of criminal trespass and

sentenced to a jail term of 30 days, suspended, and the payment of court costs. Appellant

was also ordered to serve a two-year term of community control. Finally, the court ordered

that appellant have no contact with his ex-wife or minor daughter.

       {¶ 5} Appellant now appeals from that conviction, raising three assignments of error

for our review.

       {¶ 6} Assignment of Error No. 1:

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

DENIED APPELLANT HIS RIGHT TO COUNSEL, IN VIOLATION OF THE SIXTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION

10, ARTICLE [I] OF THE OHIO CONSTITUTION.

       {¶ 8} Within this assignment of error, appellant argues that, "[i]t is prejudicial error for

a trial court to require an indigent accused to proceed in a case without counsel where the

trial court does not comply with the requirements for finding a knowing, intelligent and

voluntary waiver of the fundamental right to counsel."

       {¶ 9} The Sixth and Fourteenth Amendments to the United States Constitution

guarantee a criminal defendant the constitutional right of self-representation when the

defendant voluntarily, knowingly, and intelligently elects to waive his right to be represented

by an attorney. State v. Gibson, 45 Ohio St.2d 366 (1976), paragraph one of the syllabus,
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citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525 (1975). To establish an effective

waiver of counsel, the trial court must make sufficient inquiry to determine whether the

defendant fully understands and intelligently waives this right. Gibson at paragraph two of

the syllabus. While no single definitive test exists in determining whether a defendant

voluntarily, knowingly, and intelligently waives his right to an attorney, Ohio courts generally

examine whether the totality of the circumstances demonstrate such a waiver. State v.

Doyle, 12th Dist. No. CA2005-11-020, 2006-Ohio-5373, ¶ 9.

       {¶ 10} "Nonetheless, '[t]o discharge this duty in light of the strong presumption against

waiver of the constitutional right to counsel, a judge must investigate as long and as

thoroughly as the circumstances of the case before him demand. * * * 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.'" Gibson, 45 Ohio St.2d at 377, quoting Von

Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316 (1948).

       {¶ 11} Appellee concedes that a valid waiver of the right to counsel was not obtained

from appellant. A review of the record indicates that while appellant agreed to proceed

without an attorney, that was done without the trial court properly advising him 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} In light of the foregoing, having found that the trial court failed to obtain a valid

waiver of appellant's right to counsel, appellant's first assignment of error is sustained.

       {¶ 13} Assignment of Error No. 2:

       {¶ 14} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN
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ENTERING A GUILTY VERDICT FOR CRIMINAL TRESPASS CONTRARY TO

APPELLANT'S RIGHT TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I

OF THE OHIO CONSTITUTION.

       {¶ 15} Within this assignment of error, appellant argues that "[t]he State of Ohio failed

to present sufficient evidence to establish, beyond a reasonable doubt, the essential element

of 'lack of privilege.'" Due to double jeopardy considerations, appellant's challenge of the

sufficiency of the evidence supporting his conviction is not rendered moot by the granting of a

new trial. State v. Tillman, 12th Dist. No. CA2003-09-243, 2004-Ohio-6240, ¶ 36.

       {¶ 16} When reviewing the sufficiency of the evidence underlying a criminal conviction,

an appellate court examines the evidence in order to determine whether such evidence, if

believed, would support a conviction. State v. Wilson, 12th Dist. No. CA2006-01-007, 2007-

Ohio-2298, ¶ 33. "The relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential elements

of the crime proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991),

paragraph two of the syllabus.

       {¶ 17} R.C. 2911.21 defines criminal trespass, in pertinent part, as: "(A) No person,

without privilege to do so, shall do any of the following: (1) Knowingly enter or remain on the

land or premises of another[.]" Privilege is the distinguishing characteristic between unlawful

trespass and lawful presence on the land or premises of another. See State v. Russ, 12th

Dist. No. CA99-07-074, 2000 WL 864989 at 7 (June 26, 2000). Privilege is "an immunity,

license, or right conferred by law, bestowed by express or implied grant, arising out of status,

position, office, or relationship, or growing out of necessity." R.C. 2901.01(A)(12). "Where

no privilege exists, entry constitutes trespass." Russ at 7, quoting State v. Lyons, 18 Ohio

St.3d 204, 206 (1985).
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        {¶ 18} In the present case, appellant argues that there was insufficient evidence to

support a conviction because appellee failed to present evidence to prove the element of lack

of privilege. In support of his argument, appellant cites the testimony of his ex-wife's current

husband that he had given appellant permission to enter the property "a couple of years

ago."

        {¶ 19} Conversely, there was testimony from appellant's ex-wife and minor daughter

that both parties had advised appellant recently that he was not permitted to enter the

property. Appellant's ex-wife specifically testified that prior to the alleged incident on

December 1, 2011, she had told him as recently as the "first week of November" that he was

not allowed to enter her property. Appellant's minor daughter also testified that she had told

him not to enter the property "a month or two" before December 1, 2011.

        {¶ 20} Based on the testimony of appellant's ex-wife and minor daughter, and viewing

that testimony in the light most favorable to the prosecution, we find that there was sufficient

evidence for a rational trier of fact to find that appellant lacked privilege to enter the property

beyond a reasonable doubt.

        {¶ 21} The question of whether appellant believed he had permission to enter the

property based on an invitation from ex-wife's current husband "a couple of years ago" is a

question of credibility and weight, not a question of sufficiency.

        {¶ 22} In light of the foregoing, having found that the evidence was sufficient, if

believed, to support a conviction, appellant's second assignment of error is overruled.

        {¶ 23} Assignment of Error No. 3:

        {¶ 24} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN

ENTERING A GUILTY VERDICT FOR CRIMINAL TRESPASS WHERE SAID VERDICT

WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.

        {¶ 25} Having found that appellant was denied the right to counsel and must be
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granted a new trial under appellant's first assignment of error, this assignment of error is

rendered moot.

       {¶ 26} Judgment reversed and cause remanded for a new trial.


       M. POWELL, J., concurs.


       PIPER, J., concurs separately.


       PIPER, J., concurring separately.

       {¶ 27} I concur with the above opinion in all regards in that the defendant's conviction

should be reversed based on the first assignment of error and the case remanded for a new

trial. See State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471; State v. Bizzell, 12th Dist.

No. CA2006-04-015, 2007-Ohio-2160. I write separately only to expand upon my reasoning.

       {¶ 28} I am sympathetic to the trial court's attempts to engage in dialogue with

appellant. Appellant's interruptions and responses made any meaningful dialogue extremely

difficult. Furthermore, appellant seemed to say different things at different times making the

situation even more confusing. However, even in minor offenses the court is still under an

obligation to engage in meaningful dialogue with the defendant so as to ascertain the

defendant's understanding as to the dangers and disadvantages of self-representation.

State v. Morrison, 5th Dist. No. 11-CA-29, 2012-Ohio-2154.

       {¶ 29} In State v. Doyle, 12th Dist. No. CA2005-11-020, 2006-Ohio-5373, we held that

the defendant could not show that but for the trial court's failure to properly advise Doyle

pursuant to Gibson and Faretta, Doyle would not have waived his right to counsel and would

not have proceeded pro se.       However, in Doyle, there were pretrial hearings where

discussions took place indicating that Doyle was aware of the charges against him, the

possible punishment for those charges, as well as the seriousness of the offenses.

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Additionally, Doyle demonstrated knowledge of the law and even filed appropriate pro se

pretrial motions. However, in the case before us, there is little in the record to demonstrate

facts similar to those found in Doyle.

       {¶ 30} We have consistently written that the dialogue with a defendant who desires to

proceed pro se must be extensive. In Doyle, we emphasized that the trial court has a

responsibility to insure that the defendant knows (a) the nature of the charges against him,

(b) the statutory offenses included within those charges, (c) the range of allowable

punishments thereunder, and (d) possible defenses to the charges and circumstances that

may be in mitigation of the charges. We also stated that the defendant must be advised:

              (1)   self-representation would be detrimental;

              (2)   the defendant will be held to the same standards as an
                    attorney;

              (3)   thus, the defendant must follow all technical rules of
                    substantive, procedural, and evidentiary law;

              (4)   a defendant's lack of knowledge of evidentiary and
                    procedural rules will not prevent the court from enforcing
                    them;

              (5)   the defendant's lack of knowledge of these rules may result
                    in waiving review of certain issues on appeal;

              (6)   if the defendant has any difficulty in presenting his defense
                    and complying with procedural rules, the court cannot and
                    will not assist him in the presentation of his case so that it is
                    done properly;

              (7)   the prosecution would be represented by an experienced
                    attorney;

              (8)   the right of self-representation is not a license to abuse the
                    dignity of the courtroom; thus, if there is a disruption of the
                    trial, the right to self-representation can be vacated; and

              (9)   whatever else may or may not be open to him on appeal, a
                    defendant who elects to represent himself cannot thereafter
                    complain that the quality of his own defense amounted to a
                    denial of effective assistance of counsel.

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      {¶ 31} We went on to suggest that a trial court in assessing the defendant's decision-

making abilities would be wise to also put on the record whether or not:

             (10)   the defendant suffers from any physical or mental disease
                    or disability;

             (11)   is under the influence of drugs or alcohol; and

             (12)   was forced or was promised anything to waive his right to
                    counsel.

      {¶ 32} As the right to counsel is so jealously guarded by established precedent, we

have continued to repeat the need for trial courts to investigate scrupulously and thoroughly

as needed before permitting a defendant to waive counsel and proceed pro se. State v.

Combs, 12th Dist. No. CA2011-01-001, 2012-Ohio-682. Precedent on this subject has been

specific and articulate so that trial courts may choose to implement a form designed to cover

the necessary discussion as courts do with guilty pleas, the waiver of speedy trial, or the

waiver of a jury trial. With crowded dockets and individuals infrequently electing to proceed

pro se, it becomes easy to lose the degree of thoroughness that is actually required.

      {¶ 33} Thus, I agree with our decision today. Appellant's first assignment of error must

be considered well-taken and sustained.




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