[Cite as State v. Frederick , 2020-Ohio-714.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
STATE OF OHIO Appellee

v. ANTHONY A. FREDERICK Appellant C.A. No. 18AP0005

APPEAL FROM JUDGMENT ENTERED IN THE WAYNE COUNT MUNICIPAL COURT COUNTY OF WAYNE, OHIO CASE No. 2017 CR-B 001291
DECISION AND JOURNAL ENTRY Dated: March 2, 2020

CARR, Judge. {¶1} Appellant, Anthony Frederick, appeals the judgment of the Wayne County Municipal Court. This Court a ffirms in part, reverses in part, and remands.
I. {¶2} This matter arises out of a dis pute between Frederick and his w ife, S.F., that occurred on July 25, 2017. Law enforcement was dispatched to t he Frederick residence on Friendsville Road in Wayne County, Ohio, after S.F. called 9-1- 1. As he was making his way to the scene, Lieutenant Ryan Koster of the Wayne County Sheriff’s Office initiated a traffic stop of a vehicle where Frederick was a passenger. Frederick was pl aced under arrest shortly thereafter. As a result of the incident, Frederick was charged with one count of domestic violence in violation of R.C. 2919.25(A), a first degree misdem eanor, as well as one count of disorderly conduct in viola tion of R.C. 2917.11(A)(1), a fourth degree misdemeanor. He pleaded not guilty to the charges at arraignment and an assistant publi c defender was appointed on his2 behalf. Thereafter, Frederick was also charged with one count of criminal damaging or endangering in violation of R .C. 2909.06(A)(1), a second degree misdemeanor. He pleaded not guilty to that charge as well. {¶3} The assistant public defender in itially appointed to represent Frederick filed a motion to withdraw, citing a breakdown in communication. A sec ond attorney was appointed to represent Frederick. When the second attorney filed a motion t o withdraw, the trial court held a hearing on the motion and ultima tely appointed the second attor ney to act as stand-by counsel. The matter proceeded to a jury trial. Frederick was found not guilty of domestic violence. The jury found Frederick guilty of disorderly conduct but did not f ind that there was persistence, rendering the offense a minor misdemeanor. The jury also found Frederick guilty of criminal damaging or endangering. {¶4} The trial court placed Frederick on community control for a per iod of 12 months and imposed a total of $400 in fines. While on community contr ol, Frederick was ordered to do 25 hours of community service, com plete anger management counse ling, and have no contact with S.F. or her property. The t rial court further ordered tha t Frederick was to be placed on GPS monitoring. The trial court advised Frederick that if he viola ted any provision of the order, he may be brought back before the trial court for resentencing and could be subjected to 90 days in jail, a fine not to exceed $500, up to 175 additional hours of community service, and an additional period of community c ontrol under more restrictive c onditions. {¶5} On appeal, Frederick raises t hree assignments of error.
II. ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT PERMITTED DEFENDANT TO PROCEED PRO SE WITHOUT3 SUBSTANTIALLY COMPLYING WITH CRIM.R. 44(B), AND IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE 1 OF THE OHIO CONSTITUTION. {¶6} In his first assignment of error, Frederick contends that the t rial court committed reversible error when it failed to conduct an adequate colloquy prior to allowing Frederick to proceed pro se. This Court agrees but we must also address the State’s contention that the adequacy of the colloquy was irrelevant in this case because Fr ederick did not have a right to an attorney. {¶7} The Sixth Amendment to the United States Constitution, made app licable to the states through the Fourteenth Amendment, provides criminal defe ndants with the fundamental right to counsel. See Gideon v. Wainwright , 372 U.S. 335, 339-340 (1963). {¶8} The United States Supreme Court has held that a defendant canno t be imprisoned for any type of offense unless he was represented by counsel at trial or he made a knowing, intelligent, and voluntary waiver of his right to counsel. Argersinger v. Hamlin , 407 U.S. 25, 37 (1972). However, under the United States Constitution, a defen dant does not have a right to counsel simply because imprisonment is a possible penalty under the law. Scott v. Illinois , 440 U.S. 367, 369 (1979). Instead, a defendant has a right to coun sel under circumstances where a term of imprisonment is actually imposed. Id. at 373-374. While the United States Supreme Court extends the right to counsel upon actual incarceration, t he Supreme Court of Ohio has recognized that “states have the ability under their own consti tutions to grant greater rights than those provided by the federal Constitution.” State v. Bode , 144 Ohio St.3d 155, 2015-Ohio1519, ¶ 23. The Supreme Court has noted that, in Ohio, the pos sibility of confinement has been the determining factor with respect to whether counsel is neces sary in a particular case. Bode at ¶ 24, citing State v. Schleiger , 141 Ohio St.3d 67, 2014-Ohio-3970. This Court has stated tha t4 the right to counsel “extends to misdemeanor cases that could r esult in the imposition of a jail sentence.” (Internal quotations and citations omitted.) State v. Knight , 9th Dist. Lorain No. 11CA010034, 2012-Ohio-5816, ¶ 14. “[T]he mere possibility of c onfinement determines whether counsel is necessary in a particular case[.]” State v. Ott , 9th Dist. Summit No. 27953, 2017-Ohio-521, ¶ 7, citing Bode at ¶ 24. {¶9} Crim.R. 44(B) provides that “[w]here a defendant charged with a petty offense is unable to obtain counsel, the court may assign counsel to repre sent him. When a defendant charged with a petty offense is unable to obtain counsel, no se ntence of confinement may be imposed upon him, unless after being fully advised by the court , he knowingly, intelligently, and voluntarily waives assignment of counsel.” In turn, Crim.R. 44 (C) states, in part, “[w]aiver of counsel shall be in open court an d the advice and waiver shall be recorded as provided in Crim.R. 22.” Background {¶10} The trial court held a hearing on defense counsel’s motion to w ithdraw on January 11, 2018. At the outset of the hearing, defense counsel explai ned that when he contacted Frederick to discuss the status of plea negotiations, Frederick indicated that he did not want defense counsel to represent him and that it was his wish to ha ve the initial public defender reappointed. Prior to allowing F rederick to make a statement o n the record, the trial court reminded Frederick that his in itial public defender was permitt ed to withdraw because communication had “broken down i rretrievably.” Frederick expla ined that the breakdown in communication occurred when initial counsel filed a speedy tria l waiver without adequately discussing that issue with Frede rick. In response, the trial c ourt noted that reappointing initial counsel would be complicated for a number of reasons. The tria l court further emphasized that it5 saw no reason that current defense counsel could not provide ad equate representation. Frederick then stated, “Well, I mean I, there is really, I mean I can go forward on my own as pro se.” {¶11} While the trial court acknowledged the option of pro se represe ntation, the court reminded Frederick that it would be preferable for him to be re presented because he was charged with a “serious offense.” Frederick expressed a desire to get the case “over and done with” because the case was likely “going to an appeals court[.]” The trial court again stated that it saw no reason that current defense counsel could not provide adequa te representation. At that point, Frederick stated, “I will conti nue as pro se. I don’t need to waste no more time of [defense counsel], you know, to represent me in this case. I will go fo rward as pro se.” The trial court then asked defense counsel if he would be willing to serve as s tand-by counsel. Defense counsel responded in the affirmative. The trial court then provided Fr ederick with a brief explanation of the role of stand-by counsel. {¶12} Frederick expressed reservations about whether the presence of stand-by counsel would prohibit him from communicating directly with the assista nt prosecutor during plea negotiations. The State noted on the record that its plea offe r would remain open until the end of the day and that it would be willing to discuss the offer with Frederick. The trial court then stated that it would keep defense counsel in place until the en d of the day to assist Frederick in assessing the terms of the plea offer. When Frederick indicate d that he understood, the trial court continued, “[a]fter today, I am going to change [defense counse l’s] status to stand-by counsel.” The trial court further reminded Frederick that if he was not a ble to reach an agreement, the matter would proceed to trial re latively quickly because he had revoked his speedy trial waiver. {¶13} The trial court adjourned the hearing without any further inqui ry regarding Frederick’s waiver of his right to counsel. The trial court is sued a journal entry appointing6 defense counsel as stand-by counsel, effective January 12, 2018 . When the parties were unable to enter in a plea agreement, the matter proceeded to trial a w eek later with Frederick representing himself and former defense counsel serving as stan d-by counsel.
Discussion {¶14} Frederick argues that the trial court failed to engage in a col loquy to determine whether his waiver of his right to counsel was knowing, intelli gent, and voluntary. Frederick stresses that the trial court ne ither inquired as to whether he understood the nature of the proceedings, nor advised him of the dangers of self-representat ion. {¶15} In response, the State maintains that Frederick’s waiver of his right to counsel was valid because he was clear and unequivocal in expressing his de sire to proceed pro se. The State points to several of the filings that Frederick made while he w as represented by counsel in support of the conclusion that Frederick had already abandoned the notion of legal representation. The State further argues in the alternative th at even if this Cour t determines that his waiver was invalid, his convi ctions should nonetheless be a ffirmed because no prison term was imposed in this case. {¶16} Under the circumstances of this case, we are compelled to susta in Frederick’s assignment of error. The trial c ourt showed great patience in this case while attempting to accommodate the fluidity of Frederick’s position with respect t o his representation. When Frederick ultimately expressed a desire to represent himself, t he trial court did not engage in any type of meaningful colloquy to determine whether Frederick was aware of the dangers of proceeding without the benefit of counsel. The fact that Frede rick expressed a de sire to represent himself and made a number of filings on his own behalf does not alter the requirement of the trial court to engage in a colloquy in order for his waiver to be kno wing, intelligent, and voluntary.7

See State v. Brooke , 113 Ohio St.3d 199, 2007-Ohio-1533, ¶ 54 (“For a petty offens e, voluntary and knowing waiver may be shown through the court’s colloquy wi th the defendant.”). As Frederick faced potentially significant penalties in this case, including the possibility of incarceration, the trial court e rred when it permitted Frederic k to represent himself without validly waiving his right to counsel. {¶17} The first assignment of error is sustained.
ASSIGNMENT OF ERROR II
THE STATE VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT WHEN IT FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE PROPERTY OWNER DID NOT CONSENT TO THE PROPERTY DAMAGE FOR THE CRIME OF CRIMINAL DAMAGING PURSUANT TO R.C. 2909.06(A). ASSIGNMENT OF ERROR III THE CONVICTION OF DISORDERLY CONDUCT WAS BASED UPON INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION ON THAT CHARGE. {¶18} In his second assignment of error, Frederick contends that his conviction for criminal damaging or endangering was not supported by sufficien t evidence because the State failed to prove that the owner of the vehicle did not consent t o the events that occurred on July 25, 2017. In his third assignment o f error, Frede rick maintain s that the trial court should have granted his Crim.R. 29 motion with respect to the disorderly co nduct charge because there was no evidence that he caused inconve nience, annoyance, or alarm. This Court disagrees with both arguments. {¶19} While our resolution of Frederick’s first assignment of error m andates reversal, we are compelled to address his sufficiency challenges due to t he constitutional protection against double jeopardy. State v. Lindow , 9th Dist. Summit No. 27417, 2016-Ohio-913, ¶ 15. {¶20} Crim.R. 29(A) provides, in relevant part:8

The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of a cquittal of one or more offenses charged in the indi ctment, information, or compla int, if the evidence is insufficient to sustain a conviction of such offens e or offenses. The court may not reserve ruling on a motion for judgment of acquit tal made at the close of the state’s case. {¶21} When reviewing the sufficiency of the evidence, this Court must review the evidence in a light most favorable to the prosecution to determ ine whether the evidence before the trial court was sufficient to sustain a conviction. State v. Jenks , 61 Ohio St.3d 259, 279 (1991). An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitt ed at trial to determine whether such evidence, if believed, would convince th e average mind of the defendant’s guilt beyond a reasonable doubt. The releva nt inquiry is whether, after viewing the evidence in a light most favorable t o the prosecution, any rational trier of fact could have found the essential eleme nts of the crime proven beyond a reasonable doubt. Id. at paragraph two of the syllabus. {¶22} Frederick was convicted of criminal damaging or endangering in violation of R.C. 2909.06(A)(1), which states, “[n]o person shall [knowingly, by any means] cause, or create a substantial risk of physical harm to any property of another wi thout the other person’s consent[.]” Frederick was also convicted of disorderly conduct in violation of R.C. 2917.11(A)(1), which states, “[n]o person shall recklessly caus e inconvenience, annoyance, or alarm to another by * * * [e]ngaging in fighting, in threatenin g harm to persons or property, or in violent or turbulent behavior[.]” Background {¶23} The State presented evidence at trial that supported the follow ing narrative. On July 25, 2017, S.F. called 9-1-1 and reported that her husband, Frederick, had just attacked her and put his hands on her throat. During the call, S.F. indicate d that Frederick had grabbed a knife9

and slashed the tires on her vehi cle. Frederick can be heard y elling in the background of the recording. S.F. further indicat ed that she was outside of her house and that Frederick was preventing her from entering the house where her children were located. S.F. expressed concern that she would be cornered upon reentry. The children subseque ntly came out of the house and S.F. attempted to calm them down. S.F. explained that Frederic k’s uncle, D.C., was also at the house and witnessed the incident. Near the end of the call, S. F. explained that D.C. and Frederick had left the property in a minivan. S.F. provided th e make and model of the vehicle. {¶24} Lieutenant Ryan Koster initiated a traffic stop of the minivan. D.C. was driving the vehicle and Frederick was in the passenger seat. Lieutenan t Koster testified that Frederick seemed to understand that the tra ffic stop was related to what had just transpired at his residence. Frederick told Lieutenant Koster that the situation at the resi dence was triggered when the dog had an accident, and then a disput e between Frederick and S.F. ensued. While Lieutenant Koster noticed scratches on the side of Frederick’s neck, Frederick di d not provide a clear narrative as to how the physical altercation unfolded. Deputy Steven Browning arrived on the scene of the traffic stop and stayed briefly b efore proceeding to make conta ct with S.F. When Deputy Browning arrived at the Frederick residence, he found S.F. to b e “[a]ngry” and “fearful.” Deputy Browning took photographs of the slashed tires on the pa ssenger side of S.F.’s vehicle. The photographs, which were introduced as exhibits at trial, sh owed that the tires were flat. Lieutenant Koster ultimately made his way to the residence as w ell. S.F. provided a more detailed account than Frederick re garding what had transpired d uring the incident. After discussing the situation with S .F., Lieutenant Koster and Deput y Browning placed Frederick under arrest.10
Criminal Damaging or Endangering {¶25} In support of his second assignment of error, Frederick contend s that the State failed to demonstrate that the o wner of the vehicle did not con sent to Frederick’s actions on July 25, 2017. Frederick argues that there was conflicting evidence at trial regarding who owned the vehicle and that the State failed to demonstrate that the owner of the vehicle did not consent to the damage. {¶26} Fredrick’s argument is without merit. S.F. indicated during th e 9-1-1 call that Frederick had damaged her vehicle. Deputy Browning further sug gested during his testimony that S.F. owned the vehicle. Wh ile Frederick contends that the re was conflicting evidence regarding who owned the vehicle, we are mindful that we must co nstrue the evidence in the light most favorable to the State in resolving a sufficiency challeng e. Jenks , 61 Ohio St.3d at 279. Moreover, while Frederick conte nds that the State failed to pro ve that he did not act with consent, the record suggests othe rwise. S.F. was distressed du ring the 9-1-1 call and expressed alarm when Frederick slashed he r tires. S.F. further told the dispatcher that Frederick slashed her tires because he did not want S.F. to have the ability to leave . It follows that the evidence presented at trial, when construe d in the light most favorable to the State, was sufficient to demonstrate that Frederick dama ged S.F.’s property without her consent. {¶27} The second assignment of error is overruled. Disorderly Conduct {¶28} In support of his third assignment of error, Frederick posits t hat the trial court should have granted his motion for acquittal in regard to disor derly conduct because the State failed to present sufficient ev idence that he “caused inconveni ence, annoyance, or alarm in this matter[.]” S.F. was undeniably d istraught during the 9-1-1 cal l. During the call, S.F. expressed11

frustration with Frederick’s behavior and she could be heard at tempting to calm down her children as the incident unfolde d. S.F. remarked that Frederic k slashed her tires with the specific aim of preventing her from possessing the ability to leave the property. This evidence, when construed in the light most favor able to the State, was suffici ent to survive Frederick’s motion for acquittal as it demonstrated that Frederick engaged in turb ulent behavior that caused inconvenience, annoyanc e, and alarm to S.F. {¶29} The third assignment of error is overruled.
III. {¶30} Frederick’s first assignment of error is sustained. The second and third assignments of error are overrule d. The judgment of the Wayne County Municipal Court is affirmed in part, reversed in pa rt, and the cause remanded for further proceedings consistent with this decision. Judgment affirmed, in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Wayne County Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is12 instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed equall y to both parties.

DONNA J. CARR FOR THE COURT

CALLAHAN, P. J. SCHAFER, J. CONCUR.

APPEARANCES: MICHELLE FINK, Attorney a t Law, for Appellant. DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assi stant Prosecuting Attorney, for Appellee.