[Cite as State v. Doogs, 2020-Ohio-3769.]




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




STATE OF OHIO,
                                                          CASE NO. 16-19-08
       PLAINTIFF-APPELLEE,

       v.

SHELDON L. DOOGS,                                         OPINION

       DEFENDANT-APPELLANT.



                Appeal from Wyandot County Common Pleas Court
                           Trial Court No. 19-CR-0017

                                      Judgment Affirmed

                              Date of Decision: July 20, 2020



APPEARANCES:

        Sheldon L. Doogs, Appellant

        Eric J. Figlewicz for Appellee
Case No. 16-19-08



WILLAMOWSKI, J.

       {¶1} Defendant-appellant Sheldon L. Doogs (“Doogs”), pro se, appeals the

judgment of the Wyandot County Court of Common Pleas, alleging (1) that the trial

court erred by allowing hybrid representation; (2) that his conviction is not

supported by sufficient evidence; and (3) that the trial court erred in denying his

motion for a new trial. For the reasons set forth below, the judgment of the trial

court is affirmed.

                          Facts and Procedural History

       {¶2} On February 5, 2019, Lieutenant Michael Gullifer (“Lieutenant

Gullifer”) of the City of Upper Sandusky Police Department was on patrol with

Patrolman Charles Seeley (“Patrolman Seeley”). Tr. 115-116. Lieutenant Gullifer

identified Doogs as a passenger in a pickup truck that was driving on the highway.

Tr. 117.    The driver of the vehicle was Doogs’s fiancé, Samantha Newell

(“Newell”). Tr. 210. At this time, there was a warrant for Doogs’s arrest. Tr. 117-

118. Lieutenant Gullifer and Patrolman Seeley initiated a traffic stop of the pickup

truck. Tr. 117. After confirming that the warrant was active and confirming

Doogs’s identity, the police handcuffed him and placed him in the patrol car. Tr.

118-119.

       {¶3} Lieutenant Gullifer testified that he “smell[ed] a strong odor of

marijuana on [Doogs’s] person.” Tr. 119. This prompted Lieutenant Gullifer to


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contact a canine unit to determine whether there was contraband present in the

pickup truck. Tr. 119, 154. Officer Andrew Silcox (“Officer Silcox”) arrived at the

scene of the stop with a detection dog. Tr. 120. The dog alerted Officer Silcox that

there was contraband present in the pickup truck. Tr. 120, 156. At this point, the

police initiated a search of the pickup truck. Tr. 120, 157.

       {¶4} Officer Silcox testified that he gave Doogs a Miranda warning and then

asked Doogs if there was any contraband in the vehicle. Tr. 157. He testified that

Doogs, in response, “stated something to the effect that I have a gun in my

backpack.” Tr. 157. Officer Silcox then went to the vehicle, obtained the backpack,

and discovered a loaded nine millimeter handgun inside of it. Tr. 159. Lieutenant

Gullifer testified that this “backpack * * * was just behind the front seat of the truck

but on a raised bed or platform.” Tr. 120. Officer Silcox stated that “the backpack

was accessible to both the driver and the passenger * * *.” Tr. 158.

       {¶5} On February 6, 2019, Doogs was indicted on one count of improperly

handling a firearm in a motor vehicle in violation of R.C. 2923.16(B). Doc. 1. On

February 20, 2019, he filed a document requesting court appointed counsel. Doc.

8. On March 7, 2019, Doogs appeared before the trial court and informed those

present that he wanted to represent himself in this matter. Doc. 17. After the trial

court informed him of the standard to which he would be held, Doogs “then changed

his mind and requested an attorney.” Doc. 17. The trial court then appointed

counsel to represent Doogs. Doc. 17.

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       {¶6} On August 28 and 29, 2019, a jury trial was held on these charges. Tr.

1. The jury returned a verdict of guilty on August 29, 2019. Doc. 46. On September

9, 2019, Doogs, pro se, filed a motion for judgment of acquittal and for a new trial.

Doc. 47. On September 25, 2019, the trial court denied the requests made in this

motion. Doc. 51. The trial court entered a judgment entry of sentencing on

November 5, 2019. Doc. 67.

       {¶7} The appellant filed his notice of appeal on November 22, 2019. Doc.

68. On appeal, Doogs raises the following three assignments of error:

                            First Assignment of Error

       The trial court committed plain error in subjecting the defendant-
       appellant to hybrid legal representation in violation of his Sixth
       and Fourteenth Amendment right to assistance of counsel and his
       Sixth Amendment right to defend pro se.

                          Second Assignment of Error

       The trial court committed prejudicial and plain error in not
       entering a judgment of acquittal where the evidence was
       insufficient to sustain a conviction for mishandling of a firearm in
       a motor vehicle in violation of appellant’s right to Due Process of
       Law under the Ohio and United States Constitution.

                           Third Assignment of Error

       The trial court erred and abused its discretion in not granting the
       motion for new trial where the appellant presented a colorable
       claim of juror misconduct in violation of his absolute right to
       procedural due process of law.




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                             First Assignment of Error

       {¶8} Doogs asserts that the trial court erred by allowing hybrid

representation.

                                   Legal Standard

       {¶9} “A criminal defendant has the right to conduct their own defense * *

*.” State v. Owens, 3d Dist. Allen No. 1-07-66, 2008-Ohio-4161, ¶ 26. However,

“[a] defendant has no right to a ‘hybrid’ form of representation wherein he is

represented by counsel, but also acts simultaneously as his own counsel.” State v.

Keenan, 81 Ohio St.3d 133, 138, 689 N.E.2d 929 (1998). “A criminal defendant

has the right to representation by counsel or to proceed pro se with the assistance of

standby counsel, but these two rights are independent of each other and may not be

asserted simultaneously.” State v. Teagarden, 5th Dist. Licking No. 17-CA-96,

2018-Ohio-3767, ¶ 26, citing State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471,

816 N.E.2d 227, ¶ 32.

                                   Legal Analysis

       {¶10} After the jury returned a verdict, Doogs filed a pro se motion for

acquittal and for a new trial even though he was represented by counsel at that time.

Doc. 47, 51. On appeal, Doogs argues that the trial court erred by considering his

pro se motion because this allowed hybrid representation. However, in its judgment

entry, the trial court initially noted that Doogs’s motion was “redundant” as his



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appointed counsel had made these motions at trial. Doc. 51. See Tr. 250, 261. The

trial court also stated the following:

       Defendant’s Motion does amount to hybrid representation as he
       is currently represented by court appointed counsel and filed the
       Motion pro se. Hybrid representation is not recognized in the
       State of Ohio and indeed is discouraged. The only reason the
       Court did not summarily strike the Defendant’s Motion is because
       of his allegation of ineffective assistance of counsel. Accordingly
       the Court OVERRULES the Motion for Acquittal and Motion for
       New Trial as the Defendant did not support his request for the
       same, and/or in the alternative engaged in impermissible hybrid
       representation.

Doc. 51. Thus, the trial court recognized Doogs’s motion as a product of hybrid

representation. Doc. 51. See State v. Jack, 11th Dist. Geauga No. 2016-G-0057,

2016-Ohio-8424, ¶ 23.

       {¶11} However, if the trial court erred in considering portions of this motion,

this would constitute invited error. “Under the invited-error doctrine, ‘a party is not

entitled to take advantage of an error that he himself invited or induced the court to

make.’” State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488, 73 N.E.3d 414, ¶

108, quoting State ex rel. Kline v. Carroll, 96 Ohio St.3d 404, 2002-Ohio-4849, 775

N.E.2d 517, ¶ 27. Doogs chose to file a motion pro se while he was represented by

counsel. He cannot now complain that his attempt to engage in a scheme of hybrid

representation is the trial court’s error. Further, Doogs has not demonstrated how

he was prejudiced by the trial court’s decision to consider portions of a motion that

he filed. After reviewing the evidence in the record, we conclude that Doogs’s


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arguments regarding hybrid representation are without merit.          Thus, his first

assignment of error is overruled.

                            Second Assignment of Error

       {¶12} Doogs asserts that his conviction is not supported by sufficient

evidence because there was inconsistent testimony at trial.

                                    Legal Standard

       {¶13} A challenge to the sufficiency of the evidence supporting a conviction

“is a question of law and a ‘test of adequacy rather than credibility or weight of the

evidence.’” State v. Beaver, 3d Dist. Marion No. 9-17-37, 2018-Ohio-2438, ¶ 40,

quoting State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19. “The

sufficiency-of-the-evidence analysis addresses the question of whether adequate

evidence was produced for the case to be considered by the trier of fact and, thus,

whether the evidence was ‘legally sufficient to support the verdict * * *.’” State v.

Luebrecht, 3d Dist. Putnam No. 12-18-02, 2019-Ohio-1573, ¶ 36, quoting State v.

Worthington, 3d Dist. Hardin No. 6-15-04, 2016-Ohio-530, ¶ 12. On appeal, the

applicable standard

       is whether, after viewing the evidence in the light most favorable
       to the prosecution, any rational trier of fact could have found that
       the essential elements of the crime were proven beyond a
       reasonable doubt.

State v. Brown, 3d Dist. Hancock No. 5-17-19, 2018-Ohio-899, ¶ 8, quoting State

v. Plott, 2017-Ohio-38, 80 N.E.3d 1108, ¶ 73 (3d Dist.).


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       {¶14} In order to establish a conviction for improperly handling a firearm in

a motor vehicle in violation of R.C. 2923.16(B), the State must prove the defendant

“[1] knowingly [2] transport[ed] or [had] a loaded firearm [3] in a motor vehicle [4]

in such a manner that the firearm [was] accessible to the operator or any passenger

without leaving the vehicle.” R.C. 2923.16(B).

                                     Legal Analysis

       {¶15} At trial, Officer Silcox testified that, at the time of the stop, he asked

Doogs if he had any contraband in the vehicle. Officer Silcox said that Doogs, in

response, stated “something to the effect that I have my gun in my bag, or there is a

gun in my bag * * *.” Tr. 157. Tr. 157. He then affirmed that Doogs indicated the

backpack that contained the handgun belonged to him. Tr. 157. He also testified

that Doogs stated that there was a magazine in the handgun and that “[t]he magazine

[had] rounds in it, but there was not a round in the chamber.” Tr. 157. Officer

Silcox stated that the name “Doogs” was stippled “on the bottom of the trigger

frame.” Tr. 159. Ex. 8. He further testified that Doogs stated that he had put the

stippling on the firearm. Tr. 160.

       {¶16} Officer Silcox also stated that the magazine was in the handgun at the

time of its discovery. Tr. 161. He testified that there were eighteen rounds in the

magazine. Tr. 161. He also testified that “the ammo [was] in the gun, and it’s

accessible to the people. And if you’re to carry it properly, you need the ammo and

the gun to be separate.” Tr. 162. Officer Silcox further testified that Doogs, at the

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time of the stop, did not deny placing the handgun into the vehicle and did not deny

owning the handgun. Tr. 162.

       {¶17} At trial, Lieutenant Gullifer testified that the location of the firearm

was “within reach of both the passenger and the driver. They could easily just reach

right over the seat and grab it * * *.” Tr. 123. Lieutenant Gullifer testified that the

magazine in the firearm was full at the time that it was found. Tr. 126-127.

Lieutenant Gullifer testified that the driver of the vehicle, Samantha Newell

(“Newell”), had indicated that she had purchased the handgun and had given it to

Doogs. Tr. 124. He further testified that Newell had indicated that the backpack

belonged to Doogs and that he had placed the handgun into the backpack. Tr. 124.

       {¶18} Patrolman Seeley testified that he asked Newell several questions after

the police stopped the pickup truck. Tr. 176. He testified that she indicated that

there was a firearm in the vehicle. Tr. 175. He then stated that a firearm was found

in a backpack in the vehicle; that the magazine was in the firearm; and that there

were rounds in the magazine. Tr. 177. Patrolman Seeley also testified that Doogs

did not deny owning the handgun and did not deny knowing that the handgun was

in the vehicle. Tr. 181. He said that Doogs told him that he (Doogs) was going to

Columbus for work and that he had the handgun with him to protect Newell. Tr.

181. Patrolman Seeley further stated that the firearm was tested and found to be

operable. Tr. 183.



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       {¶19} Doogs points to the fact that the Defense produced some evidence that

contradicts the evidence produced by the State to substantiate several elements of

the charged offense. He argues that the presence of this contradictory evidence

indicates that his conviction is based upon insufficient evidence. However, his

argument assumes that the State produced some evidence to substantiate each of the

essential elements of the offense. If the State had not produced some evidence to

substantiate the essential elements of the offense, then the testimony produced by

the Defense would not have any evidence to contradict.

       {¶20} After examining the evidence in the record in a light most favorable to

the prosecution, we conclude that the State did produce some evidence for each of

the essential elements of the crime of improperly handling a firearm in a motor

vehicle in violation of R.C. 2923.16(B). Based on the evidence presented at trial, a

rational trier of fact could find that Doogs committed the offense as charged. Thus,

Doogs’s second assignment of error is overruled.

                            Third Assignment of Error

       {¶21} Doogs filed a pro se motion for a new trial that alleged juror

misconduct. He argues that the trial court erred in denying this motion.

                                  Legal Standard

       {¶22} “Crim.R. 33 sets forth grounds upon which a new trial may be

granted.” State v. McMahan, 8th Dist. Cuyahoga No. 82753, 2004-Ohio-229, ¶ 7.

Under Crim.R. 33(A)(2), a motion for a new trial may be granted if “misconduct of

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the jury” materially affects the defendant’s substantial rights. Crim.R. 33(A)(2).

“Crim.R. 33(C) provides: ‘[t]he causes enumerated in subsection (A)(2) * * * must

be supported by affidavit showing their truth * * *.’” (Emphasis sic.) State v.

Bradley, 3d Dist. Van Wert No. 15-18-03, 2018-Ohio-3005, ¶ 8. If a defendant files

a motion for a new trial on the basis of jury misconduct pursuant to Crim.R.

33(A)(2) but “fails to provide supporting affidavits, the trial court, may in its

discretion overrule the motion without a hearing.” State v. Butler, 3d Dist. Marion

No. 9-91-4, 1991 WL 234139, *3 (Nov. 7, 1991). See State v. Pyle, 9th Dist.

Summit No. 28802, 2018-Ohio-3160, ¶ 50.

       {¶23} “A reviewing court will not disturb a trial court’s decision granting or

denying a Crim.R. 33 motion for new trial absent an abuse of discretion.” State v.

Todd, 3d Dist. Logan No. 8-18-18, 2018-Ohio-4252, ¶ 24, quoting State v. Sanders,

188 Ohio App.3d 452, 2010-Ohio-3433, 935 N.E.2d 905, ¶ 18 (10th Dist.). “An

abuse of discretion is not merely an error of judgment.” State v. Sullivan, 2017-

Ohio-8937, 102 N.E.3d 86, ¶ 20 (3d Dist.). “Rather, an abuse of discretion is present

where the trial court’s decision was arbitrary, unreasonable, or capricious.” State v.

Kleman, 3d Dist. Hardin No. 6-19-01, 2019-Ohio-4404, ¶ 18, quoting State v.

Howton, 3d Dist. Allen No. 1-16-35, 2017-Ohio-4349, ¶ 23.

                                   Legal Analysis

       {¶24} We begin our analysis by noting that, in his first assignment of error,

Doogs argues that the trial court erred by considering his pro se motion for a new

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trial because his filing of this motion constituted hybrid representation. In his third

assignment of error, Doogs argues that the trial court erred in denying this same pro

se motion for a new trial. However, even if Doogs’s motion for a new trial was not

the product of hybrid representation, the arguments contained in this motion would

still fail.

         {¶25} In his motion for a new trial, Doogs alleged that, “immediately after

jury deliberations, an unidentified juror in this case was observed giving a ‘high

five’ signal to police officer Charles Seely [sic] * * *.” Doc. 47.1 The trial court

denied Doogs’s motion for a new trial, in part, because Doogs failed to substantiate

his claim of juror misconduct in compliance with Crim.R. 33(C). Doc. 47, 51. A

review of the record reveals that Doogs did not file an affidavit to substantiate the

allegations in his motion for a new trial. Bradley, supra, at ¶ 8. Thus, Doogs did

not comply with the requirements of Crim.R. 33(C) in filing his motion for a new

trial.   Doogs also has not identified any materials in the record that would

substantiate the allegations in his motion for a new trial.

         {¶26} Further, we note that Doogs has not cited—in his motion for a new

trial or in his brief on appeal—any case law that suggests that such contact between

a juror and a witness after jury deliberations is inappropriate or grounds for a new



1
  In its judgment entry, the trial court noted that Doogs did not allege any juror misconduct during
deliberations. Doc. 51. Rather, the motion for a new trial expressly stated that the contact occurred
“immediately after jury deliberations * * *.” (Emphasis added.) Doc. 47. We note that, Doogs, in his
appellate brief, states that this alleged contact occurred during jury deliberations. Appellant’s Brief, 8.

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trial. See Doc. 47, 51. For these reasons, we conclude that the trial court did not

abuse its discretion in denying Doogs’s motion for a new trial. The appellant’s third

assignment of error is overruled.

                                    Conclusion

       {¶27} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Wyandot County Court of Common Pleas

is affirmed.

                                                                Judgment Affirmed

PRESTON and ZIMMERMAN, J.J., concur.

/hls




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