         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D16-2811
                 _____________________________

CHRISTOPHER J. MARS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                    ___________________________

On appeal from the Circuit Court for Walton County.
Kelvin C. Wells, Judge.

                          August 3, 2018


B.L. THOMAS, C.J.

     Appellant was charged with three counts of sexual battery by
an adult on a victim more than twelve years of age but less than
eighteen years of age, without their consent, and without
physical force and violence likely to cause serious personal injury
under section 794.011(5)(a), Florida Statutes. Appellant was also
convicted of false imprisonment under section 787.02, Florida
Statutes. At trial, based on testimony of the victim and other
evidence, including DNA evidence corroborating the victim’s
testimony, Appellant was convicted. At sentencing, after the trial
court received a victim-impact statement from the victim and his
mother, Appellant was sentenced to concurrent terms of life
imprisonment on the sexual battery counts and five years’
imprisonment for false imprisonment.
     Appellant initially raised four issues on appeal, but
withdrew one issue after supplemental records demonstrated the
trial court again offered to provide counsel to appellant just
before trial, as required under Florida Rule of Criminal
Procedure 3.111(d)(5), after the trial court initially determined
Appellant knowingly waived his right to counsel and exercised
the right of self-representation. See Faretta v. California, 422
U.S. 806 (1975); Knight v. State, 770 So. 2d 663 (Fla. 2000).

     In his remaining issues on appeal, Appellant argues that the
trial court reversibly erred in failing to sua sponte conduct a
formal competency hearing and in deciding Appellant could waive
his right to counsel. In addition, he argues that it can be
determined on the face of the record that standby counsel was
ineffective by refusing to share information with Appellant.

                             Facts

    Appellant candidly concedes that he was “a difficult
defendant to have in court”; that he was “not cooperative” in
communicating with mental-health experts directed to interview
him; and that he was “not cooperative” with his counsel before
discharging his counsel.    The record supports Appellant’s
concessions.

    At a pretrial hearing, appointed defense counsel moved for a
continuance and asked the court to order a competency
evaluation; the court granted the motion and issued an order
appointing an expert to evaluate Appellant. At another hearing,
defense counsel informed the court that because Appellant
refused to talk to the evaluator, there had been no determination
of competency, although the evaluator said Appellant
“demonstrated some knowledge of the adversarial nature of [the]
proceedings.” The State argued that since there was no finding of
incompetency, Appellant was presumed to be competent and the
proceedings could go on; the trial court agreed.

     Appellant asked to address the court, and asserted that he
preferred to be evaluated by someone who had been in the
military, but the court notified him that he could not choose who
evaluated him. Appellant then asked if he could have a different

                               2
public defender, and the court proceeded to conduct a hearing
under Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).

     The court notified Appellant that it would not appoint new
counsel unless he could demonstrate current counsel was
deficient, which Appellant attempted to do: Appellant claimed
his appointed counsel had not obtained the telephone record of
the victim’s mother, but both defense counsel and the State
indicated that there was no such record; Appellant claimed that
defense counsel failed to get a recording of a phone call between
defense counsel and a potential witness, Kermit Wright, but
defense counsel indicated that the call was not recorded; and
Appellant stated that defense counsel would not give him a copy
of his notes from the phone conversation, but counsel said he told
Appellant the nature of the conversation.

     The court found that counsel was not deficient, and informed
Appellant that if he chose to discharge his appointed counsel, he
could either hire private counsel or represent himself, which the
court strongly advised Appellant not to do. Appellant was
insistent, claiming that he planned to retain counsel, and defense
counsel stated that this assertion had been pending for “six court
dates.” The trial court then allowed Appellant additional time to
retain counsel.

     At the later date, appointed counsel stated he had spent time
preparing for trial, but Appellant refused to talk to him after ten
minutes. The trial court then stated that Appellant’s case had
been delayed nine times and trial was going to proceed. When
Appellant claimed it was difficult retaining an attorney while
incarcerated, the court advised Appellant that it was not going to
delay the trial further. The court warned Appellant that if he
continued to refuse to speak with counsel, and fired his appointed
counsel, it was likely Appellant would be representing himself,
unless there was some evidence appointed counsel was providing
deficient representation. When Appellant claimed appointed
counsel had not taken depositions, defense counsel stated he had
in fact taken nine depositions and that Appellant refused to
discuss case preparation with him. The court determined that
defense counsel was not deficient; rather, Appellant was
obstinately refusing to cooperate with appointed counsel.

                                3
     Appellant then stated he wanted to fire his appointed
counsel. He answered questions logically and adequately, and he
clearly expressed his intent to discharge counsel. When the trial
court began the Faretta * inquiry, Appellant refused to answer the
relevant questions. The trial court found Appellant’s silence to
constitute affirmative answers, based on the court’s conclusion
that Appellant was intentionally refusing to communicate. The
trial court again warned Appellant of the consequences and
disadvantages of self-representation. The court directed
appointed counsel to serve as standby counsel; appointed counsel
agreed, and promised to share the deposition transcripts with
Appellant.

     When trial began, the trial court noted that Appellant was
dressed in appropriate attire rather than jail clothing and
inquired of the corrections officer who escorted Appellant to
court. The officer stated he had spoken to Appellant, who agreed
to change clothes, but he did not have a “full out” conversation
with Appellant. The officer stated Appellant was coherent and
seemed to understand the proceedings.

    The court addressed standby counsel, who indicated he was
prepared to proceed if called upon. The court again advised
Appellant that, after the Nelson and Faretta inquiries, he was
being permitted to represent himself, but that he could request
standby counsel to take over at any time. The court reminded
Appellant of the benefits of counsel and the disadvantages of self-
representation. Appellant continued to be non-responsive
throughout. The court asked standby counsel whether Appellant
had been able to communicate with him about the case, and
counsel indicated that he had.

    During jury selection, Appellant did not ask any questions or
exercise any strikes. He would not answer when asked if he had
any objections to the State’s strikes or to the swearing of the jury
panel. He was silent during the State’s opening and did not
respond when asked if he wanted to make an opening statement.

    *Faretta   v. California, 422 U.S. 806 (1975).

                                  4
     The sexual-battery charges were based on Appellant’s sexual
acts with a 17-year-old special-education student. The victim
described the acts in detail, and testified that Appellant tried to
convince him to take a shower before leaving Appellant’s home,
but the victim convinced Appellant that he wanted to take a
shower at his own home. As soon as he could, the victim
informed his mother, who immediately called police, and forensic
and medical examinations were arranged with the Child
Advocacy Center.

     After direct examination, the trial court asked Appellant,
representing himself, whether he had any questions for the
victim on cross-examination. When stand-by counsel approached
the bench, Appellant demanded that stand-by counsel disengage
from any activity in the trial, stating, “I’m representing myself.
He [counsel] ain’t got nothing to do with it now.”

     Stand-by counsel then informed the court that Appellant had
asked for counsel’s notes, which he declined to provide to
Appellant, but he did offer to provide all the discovery he had
received. The trial court declined to order counsel to provide his
notes, informing Appellant that the notes were work product.
After receiving the discovery, Appellant asked if he could have
additional time to listen to tapes. The trial court informed
Appellant he could not, as counsel had attempted to meet with
Appellant before being discharged, and Appellant refused to
cooperate with counsel. The trial court stated that he was not
going to allow Appellant to further delay the trial after it had
begun when Appellant had refused to speak to his attorney,
before his discharge, who had set aside an entire afternoon to
meet with Appellant. The trial court allowed Appellant time
during a lunch recess to review the discovery, but noted that he
had warned Appellant he would not be receiving any “special
treatment.”

    When Appellant asked if he could recall the victim, rather
than cross-examine the victim, in order to hear all the other
evidence the State would present, the trial court informed
Appellant that he could call witnesses in his own case and ask


                                5
them questions, if the questions were relevant and permissible
under the rules of evidence.

     Dr. Lynn Keefe with the Child Advocacy Center who
examined the victim testified that he had a gene abnormality
called “Fragile X Syndrome,” which was associated with certain
symptoms and could be associated with intellectual disabilities.
The doctor took swabs from the victim for DNA analysis which
were provided to law enforcement.

     Appellant responded “I sure do,” when the trial court asked
Appellant if he had any questions on cross-examination.
Appellant questioned Dr. Keefe regarding why Appellant’s DNA
might not be found in part of the victim’s body or in another
manner; Dr. Keefe testified that Appellant’s DNA could be found
in other bodily fluids and his fingernails.       Appellant also
attempted to question Dr. Keefe regarding an allegation that the
victim had previously been molested by his father, but the trial
court sustained this objection.       On redirect examination,
Dr. Keefe testified that Appellant’s DNA could have been present
in the victim’s saliva. On re-cross examination, Appellant asked
if this would include DNA from spitting out his tobacco juice, and
Dr. Keefe agreed that any of Appellant’s saliva could include his
DNA.

     Detective Phillip Austin testified that the victim identified
Appellant from a photographic lineup. When Detective Austin
interviewed Appellant, he confirmed he knew the victim, who had
been in Appellant’s home. The detective took a buccal swab from
Appellant. Appellant cross examined Detective Austin, noting
that the victim had stated something occurred during his police
interview, which the victim had testified at trial did not occur.
Appellant attempted to argue with the detective regarding
Appellant’s use of crutches, but the trial court informed him that
he could testify on his own behalf in this regard.

     Kelly Shay, an analyst with the Florida Department of Law
Enforcement, testified that she tested the samples from the
victim and Appellant and that samples of the victim’s bodily
fluids contained Appellant’s DNA.        On cross-examination,
Appellant asked Shay one question, whether she was testing

                                6
specifically for saliva. Shay indicated there was not enough of a
sample for her to test each of the swabs for saliva; she was
testing for semen and blood.

     After the State rested, the trial court discussed with
Appellant his right to testify and present a case. Appellant then
indicated he would like to have standby counsel represent him.
After conferring with counsel, Appellant did not testify and did
not present any other evidence. During closing, counsel argued
that there was reasonable doubt regarding the DNA evidence, as
it could have come from the victim’s contact with surfaces in
Appellant’s home, and there was reasonable doubt about the
victim’s credibility.

     The trial court instructed the jury without objection. The
jury found Appellant guilty on all four counts.

                            Analysis

                     Competency to Proceed

     Appellant first asserts that the trial court erred when it
declined to conduct a competency proceeding based on Appellant’s
behavior when he refused to cooperate with a mental-health
evaluation and refused to answer some questions during the
Faretta hearing. The State asserts that the trial court did
conduct a competency hearing, received the expert’s report, and
found that Appellant could proceed and was only trying to
obstruct the trial.     The State relies on the trial court’s
questioning during the Faretta hearing and on Appellant’s
eventual self-representation, during which he displayed
competence and intelligently questioned witnesses and
communicated with the court.

     A trial court’s decisions regarding a defendant’s competency,
including the question of whether a formal competency hearing
should have been held, are reviewed for abuse of discretion. See
Peede v. State, 955 So. 2d 480 (Fla. 2007) (applying abuse of
discretion standard to a competency determination); Laster v.
State, 212 So. 3d 392 (Fla. 4th DCA 2017) (finding that court’s
failure to sua sponte conduct a competency hearing was not an

                                7
abuse of discretion). “[A] trial court’s determination of
competency supported by competent, substantial evidence will
not be disturbed on appeal.” Gore v. State, 24 So. 3d 1, 10 (Fla.
2009).

     Florida Rule of Criminal Procedure 3.210(b) provides in
relevant part that a trial court has a duty to conduct a
competency proceeding when it has “reasonable ground[s] to
believe that the defendant is not mentally competent to
proceed[.]” Competency to stand trial means the defendant “‘has
sufficient present ability to consult with counsel with a
reasonable degree of rational understanding’” and “‘has a rational
as well as a factual understanding of the pending . . .
proceedings.’” Gore, 24 So. 3d at 9 (quoting Alston v. State, 894
So. 2d 46, 54 (Fla. 2004)).

     Here, the trial court did not abuse its discretion. Defense
counsel informed the court that, while the expert was unable to
conduct a complete examination, it appeared that Appellant had
an ability to understand the adversarial nature of the
proceedings. The evaluator further noted that Appellant did not
have a mental health history and that Appellant might be
refusing to be evaluated to “postpone going to trial and avoid the
potential consequences of his alleged behavior.” As to Appellant’s
silence during the Faretta inquiry and the first part of the trial,
the court found that this behavior reflected Appellant’s obstinacy,
rather than an inability to understand the proceedings. We note
furthermore that Appellant only became silent after the court
ruled that there were no grounds to discharge Appellant’s
counsel.     Later, Appellant meaningfully and intelligently
participated in his defense.

     The trial court also communicated with Appellant the day of
the trial, and questioned the deputy who escorted Appellant. The
deputy stated that Appellant seemed to be coherent and
understand events, although he did not have an extensive
conversation with Appellant. In addition, Appellant’s standby
counsel confirmed that Appellant could communicate adequately
with counsel during trial. Thus, we do not find the trial court
committed reversible error by not conducting a competency
hearing.

                                8
                       Self-Representation

     Appellant argues that the trial court erred in allowing
Appellant to represent himself. He acknowledges that the trial
court conducted a thorough Faretta hearing, but asserts that
when he refused to answer questions, the trial court was
obligated to require counsel to continue representing Appellant,
conduct a competency hearing, and delay proceedings until the
court could ensure Appellant was knowingly and intelligently
waiving his right to appointed counsel.

      The State asserts the following competent, substantial
evidence to support the finding that Appellant knowingly and
intelligently waived his right to counsel: 1) Appellant’s comment
“I’ll represent myself then” directly preceding his silence; 2) his
repeated attempts to hire a lawyer other than the assistant
public defender; 3) his claims of dissatisfaction with counsel;
4) his refusal to be evaluated; and 5) the trial court’s direct
observations of Appellant’s behavior. The State also relies on the
fact that Appellant changed his clothes before trial, and the
testimony of Deputy McCormick and standby counsel further
support the court’s determination.

     We apply a deferential standard of review when a party
challenges a trial court’s ruling that the party waived his or her
right to appointed counsel and properly exercised their right of
self-representation in a criminal case. “When reviewing a trial
court’s handling of a request for self-representation, the standard
of review is abuse of discretion.” Aguirre-Jarquin v. State, 9
So. 3d 593, 602 (Fla. 2009). This is both appropriate and logical,
as “the court’s ruling [regarding a defendant’s waiver of counsel]
turns primarily on an assessment of demeanor and credibility,
[and therefore] its decision is entitled to great weight and will be
affirmed on review if supported by competent substantial
evidence in the record.” Potts v. State, 718 So. 2d 757, 759 (Fla.
1998).

    Trial courts face a challenging task when attempting to
communicate with criminal defendants who express their refusal
to accept appointed counsel, yet refuse to properly answer

                                 9
questions to allow the court to appropriately evaluate the context
of the defendant’s demands to represent himself or herself. The
United States Court of Appeals for the Eleventh Circuit has
observed that “an unwilling defendant can foil a [trial] court’s
best efforts to engage in dialogue, thereby preventing the court
from eliciting clear information regarding the defendant's
understanding of the dangers of proceeding pro se.” United
States v. Garey, 540 F.3d 1253, 1267 (11th Cir. 2008).
Nonetheless, the trial court is permitted, in its discretion, to
interpret the defendant’s behavior as a knowing and voluntary
waiver of counsel, even where the defendant does not
affirmatively request self-representation. Id.

    The Florida Supreme Court has also recognized that a trial
court has the authority and discretion to conclude a defendant
has waived his right to counsel, where the defendant is
uncooperative, in a capital case:

    Muehleman refused to answer many of the questions
    posed by the court, but it was apparent on the record,
    from his pro se verbal and written appearances before
    the court, that he was articulate, understood the charges
    and possible penalty, knew various aspects of the law
    pertaining to the penalty phase, and knew that he had
    both a right to appointed counsel and a right to
    represent himself. Muehleman was also advised that a
    lawyer would possess experience and knowledge
    necessary in the case and that Muehleman would be at a
    great disadvantage if he represented himself.

Muehleman v. State, 3 So. 3d 1149, 1158 (Fla. 2009). Here, as in
Muehleman and Garey, the trial court properly concluded from
Appellant’s demeanor and behavior that he understood the rights
he was relinquishing by proceeding pro se and that “‘his choice is
made with eyes open.’” Faretta, 422 U.S. at 835 (quoting Adams
v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)). We
thus find no abuse of discretion in the trial court’s decision on
this issue.

     Appellant engaged with the court and discussed issues
relating to the quality of his representation and the evidence in

                               10
the case just before the Faretta inquiry. The competency expert
indicated that Appellant generally understood the proceedings,
and appointed counsel stated that Appellant could communicate
with counsel about the case.        We further recognize that
Appellant’s reticence to speak began when the court ruled
against his request for new counsel. Therefore, we hold that
competent and substantial evidence supports the trial court’s
ruling to allow Appellant to proceed pro se with standby counsel.
See Potts, 718 So. 2d at 759.

                   Ineffective Assistance Claim

     Appellant asserts that counsel provided ineffective
assistance, apparent on the face of the record, by counsel’s failure
to disclose discovery, after Appellant dismissed counsel.
Appellant argued that had counsel timely provided him with the
materials, Appellant could have better prepared for cross-
examination and may have decided to request the reappointment
of counsel at an earlier stage. He asserts that counsel’s deficient
performance and the prejudice to Appellant are apparent on the
face of the record.

     The State asserts that this argument fails, because
Appellant waived any argument regarding the effectiveness of
counsel by originally proceeding pro se and, further, he invited
error by not raising any issue regarding being unprepared until
after trial began. Moreover, the State notes, counsel provided
Appellant with some but not all of the materials before trial.
Additionally, after the State rested, Appellant chose to have
standby counsel take over his case, and counsel made a strategic
choice not to further question witnesses or present additional
evidence after review of the discovery material. Finally, the
State argues that because it is unclear how the requested
discovery material, including physical evidence, would have
undermined the State’s case, Appellant cannot establish how he
was prejudiced on the face of the record.

    Claims of ineffective assistance of trial counsel generally
cannot be reviewed on direct appeal, as “[t]he trial court is the
more appropriate forum to present such claims where evidence
might be necessary to explain why certain actions were taken or

                                11
omitted by counsel.” McKinney v. State, 579 So. 2d 80, 82 (Fla.
1991). As the Second District noted in Corzo v. State:

    The general rule is that a claim of ineffective assistance
    of counsel may not be raised on direct appeal. On rare
    occasions, the appellate courts make an exception to this
    rule when the ineffectiveness is obvious on the face of
    the appellate record, the prejudice caused by the conduct
    is indisputable, and a tactical explanation for the
    conduct is inconceivable.

806 So. 2d 642, 645 (Fla. 2d DCA 2002) (citation omitted).

     We decline to hold that any prejudice to Appellant is
indisputable. In fact, we would be hard pressed to find prejudice
here, even were we to find counsel’s conduct deficient, given the
DNA evidence and other overwhelming evidence of guilt. There
must be a reasonable probability that, had counsel provided
appropriate representation, the outcome would have been
different. Hills v. State, 78 So. 3d 648, 654 (Fla. 4th DCA 2012)
(holding defense counsel provided ineffective assistance of trial
counsel on the face of the record, where counsel failed to move to
sever counts alleging additional sexual assaults until after jury
selection and failed to properly contest similar-fact evidence, and
prejudice found where evidence not conclusive). As to Appellant’s
claim that he was prevented from preparing for cross-
examination, it is notable that Appellant did conduct cross-
examination of all witnesses other than the victim after having
an opportunity (albeit only during lunch) to review the discovery
materials. During his cross-examination of witnesses, Appellant
was able to question whether his DNA could have been present
on the victim’s body for reasons other than sexual contact, and
was able to point out that the victim’s testimony about the sexual
contact did not precisely mirror what was described in the police
report. Appellant does not specify what other attacks he could
have made on these witnesses’ testimony if more adequately
prepared.

     As to the victim, it is true that Appellant did not have access
to the discovery materials at the time he opted to forego cross-
examination and instead planned to call the victim in his own

                                12
case after hearing all of the State’s testimony. However, he
points to nothing in the discovery materials that he could have
used to undermine the victim’s credibility, especially considering
the DNA evidence corroborating the victim’s account.

     It is thus not apparent from the record that the outcome
would have been different if Appellant had timely access to the
discovery materials to prepare for cross-examination. As to
Appellant’s second point, that he may have decided to request the
reappointment of counsel at an earlier stage if he had had access
to the discovery materials, his allegation is far too speculative to
warrant relief on direct appeal. Even if he had requested the
reappointment of counsel at an earlier stage, there is no
indication that counsel would have been able to achieve a
different result.

     Thus, we decline to hold that Appellant received ineffective
assistance of trial counsel on the face of this record. As we have
rejected Appellant’s other arguments on appeal, we affirm his
conviction and sentence.

    AFFIRMED.

WETHERELL and WINSOR, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, Kevin P. Steiger, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Samuel B. Steinberg,
Assistant Attorney General, Tallahassee, for Appellee.




                                13
