State Of Ohio v. Carter
| Decision Date | 21 December 2010 |
| Docket Number | No: 10CA3169,: 10CA3169 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. CECIL R. CARTER, Defendant-Appellant |
| Court | Ohio Court of Appeals |
DECISION AND JUDGMENT ENTRY
APPEARANCES:
Timothy Young, Ohio Public Defender, Columbus, Ohio, and Jessica S. McDonald, Ohio Assistant Public Defender, Chillicothe, Ohio, for Appellant.
Toni L. Eddy, Chillicothe Law Director, and Kathryn B. Janes, Chillicothe Assistant Law Director, for Appellee.
{¶1}Cecil R. Carter (hereinafter "Carter") appeals the judgment of the Chillicothe Municipal Court, which found him guilty of theft. On appeal, Carter initially contends that the trial court should have granted his request for the appointment of new counsel. Because Carter did not show good cause for this request, we disagree. Carter also contends that the trial court should have instructed the jury on (1) attempted theft and (2) the affirmative defense of abandonment. Because the evidence did not support either of these jury instructions, we disagree. Accordingly, we overrule Carter's assignments of error and affirm the judgment of the trial court.
{¶2} On May 12, 2010, Carter entered a Wal-Mart store in Chillicothe. While in the store, Carter loaded his shopping cart with $460.72 worth of merchandise. Carter did not attempt to pay for the items. Nevertheless, he pushed the shopping cart past the self-checkout cash registers and through the general merchandise doors.
{¶3} Wal-Mart employee Bubber Wright (hereinafter "Wright") had been watching Carter's actions inside the store. After Carter exited through the general merchandise doors, Wright confronted him about the merchandise in the shopping cart. Carter then abandoned the shopping cart and ran into the parking lot. At trial, Wright described the events in the following manner:
{¶4} "While out walking the floor, I noticed Mr. Carter in infants. His cart was full. He had everything stacked very neatly, piled up. When he come out [sic] he was looking around. I hid behind a wall where he couldn't see me. He went through women's wear to the front of the fitting room. Then he proceeded to go down toward the jewelry department. He stopped in the action alley in front of jewelry. He looked around. Then he turned left. He went through the self-checks without an attempt to pay. He turns right. He goes to the G.M. exit. I was following him at this time. I knew he hadn't paid for the merchandise. He goes to the G.M. exit. The door greeter, Sadie, asked him twice for a receipt, but I was going to stop him anyway. He goes outside the G.M. doors. I approach him. I ask him for his receipt. I identified myself as Asset Protection for Wal-Mart. I asked him to come back inside that we needed to talk about the merchandise that was in the cart. At that time, Mr. Carter bolted. He took off running from me. He went toward the gas station. He got behind a vehicle and hid from me. * * *.
{¶5} "Q Were you able to locate Mr. Carter?
{¶6} "A Yes. He popped up right at that point. He walks toward me and I ask him once again that we need to talk about the merchandise that you pushed out. He said 'I didn't push out anything.' At that time he turned around. He ran to a green vehicle, 2-door rag top [sic]. He jumps in and I immediately call the Chillicothe Police Department and got a hold of the dispatcher. I identified the car and identified Mr. Carter.
{¶7} "* * *
{¶8} "Q Now you described something as G.M. door. What is that?
{¶9} "A General merchandise exit.
{¶10} "Q Is that the big, huge doors?
{¶11} "A Yes ma'am.
{¶12} "Q And that is used for entrance and exit to the store?
{¶13} "A Yes.
{¶14} "Q How far behind were you from Mr. Carter?
{¶15} "A When he exited, I was probably five foot [sic] behind him. I waited for him to get outside the exit door. He was already on the outside.
{¶16} "Q Okay. And how far out the exit door was he when you talked to him first?
{¶17} "A Just right outside. Right outside the door. The cart was just outside the door.
{¶18} "Q Did Mr. Carter say, 'all my gosh, I forgot to pay, I need to go fix that?'
{¶19} "A No ma'am.
{¶20} "Q At what point did Mr. Carter run?
{¶21} TRIAL BY JURY Transcript at 53-54, 56-57.
{¶22} Eventually, the police apprehended Carter and charged him with theft under Section 545.05 of the Revised Ordinances of the City of Chillicothe, Ohio (which is analogous to R.C. 2913.02). Because he allegedly stole less than $500 worth of merchandise, Carter was charged with a first-degree misdemeanor.
{¶23} On the morning of his trial, Carter requested new appointed counsel. The trial court held a hearing on Carter's request.
{¶40} Carter went to trial with his appointed counsel. The state called Wright and a Chillicothe Police Officer as witnesses. Then, the state rested its case. Carter rested his case without calling any witnesses or producing any evidence.
{¶41} At the close of evidence, Carter requested jury instructions on (1) attempted theft and (2) the affirmative defense of abandonment. The trial court, however, did not give either of Carter's requested jury instructions.
{¶42} The jury found Carter guilty of theft, and the trial court sentenced Carter to the maximum sentence for a first-degree misdemeanor. He appeals and asserts the following three assignments of error: I. "THE COURT BELOW ERRED IN RULING THAT THE DEFENDANT DID NOT HAVE THE RIGHT TO FIRE HIS COURT APPOINTED COUNSEL ON THE MORNING OF TRIAL." II. "THE COURT BELOW ERRED IN RULING THAT THE DEFENDANT WAS NOT ENTITLED TO A JURY INSTRUCTION ON THE DEFENSE OF ABANDONMENT." And, III. "THE COURT BELOW ERRED IN RULING THAT THE DEFENDANT WAS NOT ENTITLED TO A JUST INSTRUCTION ON AN ATTEMPT TO COMMIT THEFT."
II.
{¶43} In his first assignment of error, Carter contends that the trial court should have (1) discharged his appointed counsel and (2) appointed substitute counsel before Carter's trial.
{¶44} "A trial court's decision regarding a request for substitute counsel is governed by an abuse of discretion standard." State v. Flesher, Monroe App. No. 06 MO 4, 2007-Ohio-4982, at ¶19, citing State v. Murphy, 91 Ohio St.3d 516, 523, 2001-Ohio-112; State v. Smith (Dec. 29, 1998), Lawrence App. No. 98CA12. An abuse of discretion connotes more than a mere error of judgment; it implies that the court's attitude is arbitrary, unreasonable, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157.
{¶45} Smith, citing State v. Deal (1969), 17 Ohio St.2d 17, 20 (other citations omitted). "Although the inquiry may be brief and minimal, the inquiry must be made." State v. Erwin, Franklin App. No. 09AP-918, 2010-Ohio-3022, at ¶8, citing State v. King (1995), 104 Ohio App.3d 434, 437. Grounds for obtaining newly appointed counsel exist only upon a "showing of good cause, such as a conflict of interest, a complete breakdown of communication, or an irreconcilable conflict which leads to an apparently unjust result." State v. Blankenship (1995), 102 Ohio App.3d 534, 558, citing State v. Pruitt (1984), 18 Ohio App.3d 50, 57; see, also, Erwin at ¶7, citing Smith; State v. Coleman (1988), 37 Ohio St.3d 286, at paragraph four of the syllabus ("To discharge a court-appointed attorney, the defendant must show a breakdown in the attorney-clientrelationship of such magnitude as to jeopardize the defendant's right to effective assistance of counsel."). If a defendant can show good cause, a trial court's "failure to honor the defendant's timely request amount[s] to a denial of effective assistance of counsel." Pruitt at 57.
{¶46} Here, Carter failed to show good cause for the appointment of new counsel. Carter alleged that his attorney did For that reason, Carter claimed that his appointed counsel (1) was not actually representing Carter and (2) would not engage in plea negotiations. But here, we disagree with Carter's assessment of his appointed counsel. During Carter's sentencing, the trial court noted that Carter had "been arrested 30 times for theft related offenses." TRIAL BY JURY Transcript at 101. Additionally, the state noted that Carter had "four...
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