Opinion
Case No. 2017CA00212
08-06-2018
STATE OF OHIO Plaintiff-Appellant v. GEORGE HERBERT SWOGGER Defendant-Appellee
APPEARANCES: For Plaintiff-Appellee JOHN D. FERRERO STARK COUNTY PROSECUTOR BY: KRISTINE BEARD 110 Central Plaza South, Ste. 510 Canton, OH 44702 For Defendant-Appellant GEORGE URBAN 116 Cleveland Avenue N.W., Suite 808 Canton, OH 44702
JUDGES: Hon. W. Scott Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J.
OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2017CR1139 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee JOHN D. FERRERO
STARK COUNTY PROSECUTOR
BY: KRISTINE BEARD
110 Central Plaza South, Ste. 510
Canton, OH 44702 For Defendant-Appellant GEORGE URBAN
116 Cleveland Avenue N.W., Suite 808
Canton, OH 44702 Gwin, P.J.
{¶1} Appellant George Herbert Swogger ["Swogger"] appeals his conviction and sentence after a jury trial in the Stark County Court of Common Pleas.
Facts and Procedural History
{¶2} Swogger and K. P. had been in a romantic relationship for eight months. On June 22, 2017, they were living together at 601 Brown Ave. N.W., Apt #1, in Canton, Ohio. At approximately, 7:45 p.m. the two got into a disagreement. Swogger pulled K.P. from the porch into the house by her hair, struck her about the face, grabbed her around the neck and strangled her.
{¶3} Canton City police officers, Officer Travis Krug and Officer Trevor Stern, responded to a 9-1-1 call about an altercation at the residence. K.P. advised the officers that Swogger had assaulted her. Officers observed K.P. to be in a state of extreme duress. They also observed red marks on her face and neck and arranged for her to be transported to Mercy Medical center for further treatment.
{¶4} Initially, Swogger told the responding officers that K. P. was his old lady and they lived together. Later Swogger denied that he ever lived with K.P., described her as "sexual buddy," and claimed that the redness on her face and neck was caused by Rosacea.
{¶5} At Mercy Medical Center, SANE nurse, Shana Humberson, took K.P's medical history, performed a strangulation questionnaire and assessment, conducted a physical examination of K.P., and gave K.P. medicine for her anxiety and pain. Humberson also observed bruising and neck injuries consistent with K.P.'s history and consistent with a strangulation injury. Humberson did not find any evidence that K.P. suffered from Rosacea.
{¶6} On August 1, 2017, Swogger was indicted by the Stark County Grand Jury for one count of Domestic Violence in violation of R.C. 2919.25(A). The indictment stated that Swogger had previously been convicted of domestic violence in Canton Municipal Court Case No. 2014CRB04334 thereby making the indicted offense a fourth degree felony.
{¶7} Prior to the commencement of the trial, the court confirmed that Swogger rejected the State's new offer of twelve months in prison in exchange for a plea of guilty. The parties stipulated to the authenticity of medical records and to Swogger's prior domestic violence conviction. The parties also discussed Swogger's motion to use videos from defendant's cell phone, filed October 10, 2017. The court withheld an initial ruling on the motion, but later denied it.
{¶8} The matter proceeded to jury trial. Prior to the jury instruction, Swogger's attorney advised the Court that Swogger wished to discharge him as counsel. The trial court overruled the request. The jury found Swogger was found guilty as charged. The court sentenced Mr. Swogger to eighteen months in prison.
Assignments of Error
{¶9} Swogger raises two assignments of error,
{¶10} "I. APPELLANT'S CONVICTIONS [sic.] WERE AGAINST THE SUFFICIENCY AND/OR MANIFEST WEIGHT OF THE EVIDENCE.
{¶11} "II. BY DENYING APPELLANT'S REQUEST FOR A MISTRIAL, THE TRIAL COURT DENIED APPELLANT HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO COUNSEL OF HIS CHOICE."
I.
{¶12} In his First Assignment of Error, Swogger argues there was insufficient evidence to convict him of domestic violence. Swogger further contends that the jury's findings are against the manifest weight of the evidence.
{¶13} Specifically, Swogger contends the state failed to prove, that the alleged victim, K.P. was a family or household member and/or that Swogger caused or attempted to cause physical harm to K. P.
STANDARD OF APPELLATE REVIEW.
A. Sufficiency of the Evidence.
{¶14} The Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." This right, in conjunction with the Due Process Clause, requires that each of the material elements of a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570 U.S. ___, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616, 621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶30. "This naturally entails a review of the elements of the charged offense and a review of the state's evidence." State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.
{¶15} When reviewing the sufficiency of the evidence, an appellate court does not ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; Walker, at ¶30. "The relevant inquiry is whether, after viewing the evidence in the 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." Jenks at paragraph two of the syllabus. State v. Poutney, 152 Ohio St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, "on review for evidentiary sufficiency we do not second-guess the jury's credibility determinations; rather, we ask whether, 'if believed, [the evidence] would convince the average mind of the defendant's guilt beyond a reasonable doubt.'" State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), quoting Jenks at paragraph two of the syllabus (emphasis added); Walker at ¶31. We will not "disturb a verdict on appeal on sufficiency grounds unless 'reasonable minds could not reach the conclusion reached by the trier-of-fact.'" State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74.
ISSUE FOR APPEAL
Whether , after viewing the evidence in the light most favorable to the prosecution, the evidence, "if believed, would convince the average mind of the Swogger's guilt on each element of the crime beyond a reasonable doubt."
{¶16} To find Swogger guilty of domestic violence the trier of fact would have to find beyond a reasonable doubt that he knowingly caused or attempted to cause physical harm to a family or household member. R.C. 2919.25(A).
1. Family or household member.
{¶17} "Family or household member" includes, "A spouse, a person living as a spouse, or a former spouse of the offender" R.C. 2919.25(F)(1)(a)(i). A "person living as a spouse" includes "a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question." R.C. 2919.25(F)(2).
{¶18} In State v. Williams, the Ohio Supreme Court addressed the definition of "cohabitation" as follows:
[W]e conclude that the essential elements of "cohabitation" are (1) sharing of familial or financial responsibilities and (2) consortium. R.C. 2919.25(E)(2) and related statutes. Possible factors establishing shared familial or financial responsibilities might include provisions for shelter, food, clothing, utilities, and/or commingled assets. Factors that might establish consortium include mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations. These factors are unique to each case and how much weight, if any, to give to each of these factors must be decided on a case-by-case basis by the trier of fact.79 Ohio St.3d 459, 465, 683 N.E.2d 1126. See also, State v. Martin, 5th Dist. Tuscarawas No. 2015AP0010, 2016-Ohio-225, 57 N.E.3d 411, ¶ 22.
{¶19} The Court further defined cohabitation in State v. McGlothan, finding where the state demonstrated the defendant was the victim's boyfriend and they had lived together for about a year, the state had no obligation to demonstrate the sharing of familial or financial responsibilities and consortium to prove cohabitation. 138 Ohio St.3d 146, 149, 2014-Ohio-85, 4 N.E.3d 1021, ¶ 15. Martin, 2016-Ohio-225, ¶23.
{¶20} We have found, pursuant to R.C. 2919.25(F), if testimony establishes the parties were presently living together at the time of the offense and had cohabitated within the past five years, such unrefuted testimony is sufficient to establish the complaining witness was appellant's family or household member. State v. Avery, 5th Dist. Stark No. 2004-CA-00010, 2004-Ohio-5226, 2004 WL 2260575, ¶ 41. See also, Uhrichsville v. Losey, 5th Dist. Tuscarawas No. 2005 AP 030028, 2005-Ohio-6564, 2005 WL 3361100; State v. Martin, 2016-Ohio-225, ¶24.
{¶21} Applying the McGlothan analysis to the facts of the instant case, we find sufficient evidence exists K.P. is Swogger's family or household member. In the case at bar, K. P. testified that she had known Swogger for eight months and they had a romantic, boyfriend/girlfriend relationship. She stated that, within the last five years she had lived with Swogger at two different Canton addresses, i.e. 1214 7th St., Canton, Ohio, and 601 Brown St., Apt #1, Canton, Ohio. On the day of the incident, K.P. testified she was living with Swogger at the Brown Street address. That day, Canton Police Officer, Travis Krug and his partner responded to the domestic violence call. When Officer Krug arrived he asked Swogger who lived with him at the Brown Street residence. Swogger replied, my old lady, referring to K.P. In a second interview, on June 29, 2017, Swogger again told Officer Krug that, at the time of the incident, he had been living with K. P. at the Brown Street address for a couple of weeks. Officer Trevor Stern also testified that when he and Officer Krug responded to the 9-1-1 call, he heard Swogger indicate that he and K. P. lived together at the Brown Street residence.
{¶22} Viewing the evidence in a light most favorable to the prosecution, we conclude that a reasonable person could have found beyond a reasonable doubt that K.P. was a "person living as a spouse." We hold, therefore, that the state met its burden of production regarding each element of the crime of domestic violence and, accordingly, there was sufficient evidence to support Swogger's conviction.
2. "Physical Harm."
{¶23} Swogger further argues that the evidence failed to establish that K. P. suffered physical harm as the result of the altercation.
{¶24} Physical harm to persons is defined as, "any injury, illness, or other physiological impairment, regardless of its gravity or duration." R.C. 2901.001(A)(3).
{¶25} In the case at bar the state presented the testimony of K.P. who told the jury that Swogger grabbed her by the hair, dragged her into the house, hit her about the face, put his arms around her neck and strangled her. She said she felt scared, upset, physically sick and believed she passed out. After the assault, K.P. could not breathe very well, was having trouble swallowing and, agreed to seek further medical attention.
{¶26} Officer Krug testified that when he responded to the scene K.P. was very upset, shaking and hesitant to talk. Officer Krug testified that he observed red marks on K.P.'s face and neck, which were consistent with her statement regarding the assault and indicative of someone trying to choke her. See also State's Exhibits 2A-2N. Officer Stern also observed that K.P. was in a state of extreme duress, sweating profusely, muttering and was not able to focus. Both officers advised K.P. to seek medical treatment.
{¶27} K.P. was taken to Mercy Medical Center where she gave a medical history and was examined by SANE nurse, Shana Humberson. During the assessment, K.P. indicated that during the assault she felt like she had difficulty breathing and shortness of breath; that her throat was constricted; that she felt like she was drooling; that after the assault she had difficulty swallowing; that neurologically she felt dizzy, light headed and experienced unconsciousness; that she lost urine control; and finally, that she began shaking uncontrollably.
{¶28} Humberson then documented K.P.'s injuries with a photo log. Humberson noted that K.P.'s eyes were bloodshot or "conjunctival" possibly caused by the strangulation. Humberson also documented that K.P. had a dark red area around her neck with tenderness on the right hand side of her neck. Humberson noted that K.P. had redness on the left side of her face, two bruises on her right upper arm, a burn on her fourth finger and bruising on her left lower leg. Humberson testified that none of the redness could be attributed to Rosacea nor did K.P. did not have any history of Rosacea.
{¶29} Viewing the evidence in a light most favorable to the prosecution, we conclude that a reasonable person could have found beyond a reasonable doubt that Swogger inflicted physical harm on K.P. We hold, therefore, that the state met its burden of production regarding each element of the crime of domestic violence and, accordingly, there was sufficient evidence to support Swogger's conviction.
B. Manifest weight of the evidence.
{¶30} As to the weight of the evidence, the issue is whether the jury created a manifest miscarriage of justice in resolving conflicting evidence, even though the evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997-Ohio-355; State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).
"[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts.Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978).
* * *
"If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment."
{¶31} The reviewing court must bear in mind, however, that credibility generally is an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31. Because the trier of fact sees and hears the witnesses and is particularly competent to decide whether, and to what extent, to credit the testimony of particular witnesses, the appellate court must afford substantial deference to its determinations of credibility. Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶ 20. In other words, "[w]hen there exist two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievable, it is not our province to choose which one we believe." State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the evidence to the fact finder, as long as a rational basis exists in the record for its decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-Ohio-1282, ¶ 24.
{¶32} Once the reviewing court finishes its examination, an appellate court may not merely substitute its view for that of the jury, but must find that " 'the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.'" State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720-721(1st Dist. 1983). Accordingly, reversal on manifest weight grounds is reserved for "the exceptional case in which the evidence weighs heavily against the conviction." Id.
ISSUE FOR APPEAL.
B . Whether the jury court clearly lost their way and created such a manifest miscarriage of justice that the convictions must be reversed and a new trial ordered.
{¶33} In the case at bar, Swogger's defense centered upon the credibility of K.P. [Appellant's Brief at 7].
{¶34} The jury as the trier of fact was free to accept or reject any and all of the evidence offered by the parties and assess the witness's credibility. "While the trier of fact may take note of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not render defendant's conviction against the manifest weight or sufficiency of the evidence." State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL 29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996 WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness' testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the evidence may have been circumstantial, we note that circumstantial evidence has the same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574 N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4, 684 N.E.2d 668 (1997).
{¶35} In the case at bar, the jury heard the witnesses, viewed the evidence and heard Swogger's testimony about his and K.P.'s actions. The jury also heard and observed K.P. on cross-examination. Thus, a rational basis exists in the record for the jury's decision.
{¶36} We find that this is not an "'exceptional case in which the evidence weighs heavily against the conviction.'" State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury neither lost his way nor created a miscarriage of justice in convicting Swogger of domestic violence.
{¶37} Based upon the foregoing and the entire record in this matter we find Swogger's conviction is not against the sufficiency or the manifest weight of the evidence. To the contrary, the jury appears to have fairly and impartially decided the matters before them. The jury heard the witnesses, evaluated the evidence, and was convinced of Swogger's guilt.
{¶38} Finally, upon careful consideration of the record in its entirety, we find that there is substantial evidence presented which if believed, proves all the elements of the crime for which Swogger was convicted.
{¶39} Swogger's First Assignment of Error is overruled.
II.
{¶40} In his Second Assignment of Error, Swogger argues that the trial court abused its discretion by denying counsel's request for a mistrial thereby denying Swogger's Sixth Amendment Right to be represented by counsel of his choice in a new trial.
{¶41} At the conclusion of the state's case, defense counsel told the court that he informed Swogger that the audio was not working on the cell phone videos Swogger wished to play. Defense counsel further informed the court Swogger waved around an envelope and said he had a grievance form and that he wanted to fire defense counsel. The court told Swogger that the court was not permitting the admission of the videos. On the record, Swogger told the court, "Basically, my attorney lied to me," insisting that defense counsel told him that if he testified, the cell phone videos could be played. Defense counsel proffered the videos into the record. Prior to the jury returning to the courtroom, Swogger stated, presumably to defense counsel, "[y]ou f'**** me, man." (1T. at 297).
{¶42} After the defense rested its case, defense counsel requested to withdraw as Swogger's attorney and asked that the court declare a mistrial. (1T. at 358-359). Defense counsel stated that Swogger wrote him a note during trial stating that he was going to do whatever he can to destroy defense counsel's career, (1T. at 358). Swogger also began filling out a grievance form during the trial. (1T. at 358-359). Swogger can be heard on the record saying, "[y]ou destroyed my life" and "[y]ou screwed me man." (1T. at 358, 374). Swogger also claimed that defense counsel would not allow him to call any witnesses. (1T. at 363). The court denied defense counsel's request to withdraw and his request for a mistrial. (1T. at 368-369).
STANDARD OF APPELLATE REVIEW.
{¶43} "Mistrials need to be declared only when the ends of justice so require and a fair trial is no longer possible." State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991). The standard of review for evaluating a trial court's decision to grant or deny a mistrial is abuse of discretion. State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984). In reviewing a claim that a mistrial should have been granted, the Ohio Supreme Court has noted "[t]his court has instead adopted an approach which grants great deference to the trial court's discretion in this area, in recognition of the fact that the trial judge is in the best position to determine whether the situation in his courtroom warrants the declaration of a mistrial." State v. Shaffer, 5th Dist. Richland No. 2003-CA-0108, 2004-Ohio-3717, ¶18 quoting [State v.] Widner [68 Ohio St.2d 188, 429 N.E.2d 1065(1981)]. See, also, Wade v. Hunter, 336 U.S. 684, 687, 69 S.Ct. 834, 836, 93 L.Ed. 974(1949).
{¶44} An abuse of discretion exists where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or where the judgment reaches an end or purpose not justified by reason and the evidence. Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship of S .H., 9th Dist. Medina No. 13CA0066-M, 2013-Ohio-4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking No.2006-CA-41, 2006-Ohio-5823, ¶54.
ISSUE FOR APPEAL.
A . Whether the trial court abused its discretion by denying Swogger's motion for a mistrial.
1. Right to Counsel of One's Choosing.
{¶45} The Sixth Amendment provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." U.S. CONST. amend. VI. This right "guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds." Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624-25, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989). "A criminal defendant who desires and is financially able to retain his own counsel 'should be afforded a fair opportunity to secure counsel of his own choice." ' Ibid. (quoting Powell v. Alabama , 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932)).
{¶46} The Supreme Court has held "that erroneous deprivation of the right to counsel of choice, 'with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as 'structural error."' United States v. Gonzalez—Lopez, 548 U.S. 140, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (quoting Sullivan v. Louisiana, 508 U.S. 275, 282, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993)). Accord, State v. Chamblis, 128 Ohio St.3d 507, 2011-Ohio-1785, 947 N.E.2d 651, ¶ 18 ("[T]he erroneous deprivation of a defendant's choice of counsel entitles him to an automatic reversal of his conviction.") In other words, a defendant who establishes that his right to counsel of choice was violated need not demonstrate prejudice in order to be entitled to relief, as a defendant claiming ineffective assistance of counsel is required to do. Id. See also, Chambliss, at ¶ 19.
{¶47} In the case at bar, Swogger points to no evidence in the record that he desired or had the means to retain new counsel to represent him. See, App.R. 16(A)(7).
{¶48} With respect to appointed counsel, the Ohio Supreme Court has held,
Where, during the course of his trial for a serious crime, an indigent accused questions the effectiveness and adequacy of assigned counsel, by stating that such counsel failed to file seasonably a notice of alibi or to subpoena witnesses in support thereof even though requested to do so by accused, it is the duty of the trial judge to inquire into the complaint and make such inquiry a part of the record. The trial judge may then require the trial to proceed with assigned counsel participating if the complaint is not substantiated or is unreasonable.State v. Deal, 17 Ohio St.2d 17, 244 N.E.2d 742, syllabus.
{¶49} In this case, the initial conflict arose in the defense case prior to the Swogger's testimony, when the trial court overruled Swogger's motion to introduce two cell phone videos. The court ruled that the videos, which had been taken approximately two months prior to the alleged offense, were irrelevant and inadmissible. After the court's ruling, Swogger told the court that his counsel had lied to him because counsel told him that if he took the stand the tapes could be played. Counsel responded that he had advised Swogger, that if he wanted to play the videos, he would have to take the stand for authentication purposes. Counsel then proffered the videos and the content of the videos for the record, stating that the videos portrayed K. P. attempting to assault Swogger. (1T. at 291-294).
{¶50} In the case at bar, the trial court conducted a lengthy inquiry into Swogger's dissatisfaction with his attorney on more than one occasion. 1T. at 286 - 297; 1T. at 358-374). Swogger's dissatisfactions stems from his belief that his attorney did not submit the cell phone videos and call witnesses to substantiate that K.P. had attacked him in the past. The trial court clearly indicated that it would not allow the videos or testimony concerning events that may or may not have occurred prior to the date in question. It is unlikely this ruling would change had a mistrial been granted or if Swogger had a different attorney for retrial. Swogger does not raise as error in his appeal the trial court's ruling concerning the admissibility of the cell phone videos.
{¶51} The trial court conducted a thorough inquiry regarding Swogger's allegations of ineffective assistance and found that Swogger's complaints were not substantiated.
{¶52} The Supreme Court has emphasized that the right to counsel of choice is "circumscribed in several important respects." Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Indeed, there are four specific situations in which the Sixth Amendment does not entitle a defendant to preferred counsel: A defendant does not have the right to be represented by (1) an attorney he cannot afford; (2) an attorney who is not willing to represent the defendant; (3) an attorney with a conflict of interest; or (4) an advocate (other than himself) who is not a member of the bar. Id.
{¶53} In addition, the Supreme Court, in United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409(2006) explicitly upheld its previous holding in Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), where the Court "recognized a trial court's wide latitude in balancing the right to counsel of choice ... against the demands of its calendar." Gonzalez-Lopez, 548 U.S. at 152. The trial court's difficult responsibility of assembling witnesses, lawyers and jurors for trial "counsels against continuances except for compelling reasons." Morris, 461 U.S. at 11.
{¶54} In the case at bar, no attorney filed an appearance or made a motion for substitution of counsel. There is no indication in the record before us that Swogger intended to hire "counsel of his choosing."
{¶55} The first time Swogger informed the trial court that he was unhappy with his attorney was after the state had rested its case and before Swogger took the witness stand. (1T. at 283). Moreover, it was unclear how much time a new attorney, once hired, would have needed to prepare for Swogger's trial. Other commitments in the new attorney's schedule may have made a brief continuance unrealistic. Miller v. Blackletter, 525 F.2d 890, 896(9th Cir2008). Any substitution of counsel will "almost certainly necessitate a last-minute continuance." United States v. Whitfield, 259 F. Appx 830, 834 (6th Cir.2008).
{¶56} The right to competent counsel does not require that a criminal defendant develop and share a "meaningful relationship" with his attorney. Morris v. Slappy, 461 U.S. 1, 13, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610(1983); State v. Blankenship, 102 Ohio App.3d 534, 657 N.E.2d 559 (12th 1995); State v. Burroughs, 5th Dist. Delaware No. 04CAC03018, 2004-Ohio-4769, ¶ 11.
{¶57} When there is no demonstration that counsel failed to research the facts or the law or that counsel was ignorant of a crucial defense, a reviewing court defers to counsel's judgment in the matter. State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189(1980), citing People v. Miller (1972), 7 Cal.3d 562, 573-574, 102 Cal.Rptr. 841, 498 P.2d 1089; State v. Wiley, 10th Dist. No. 03AP-340, 2004- Ohio-1008, ¶ 21.
{¶58} In the case at bar, Swogger's trial attorney assumed responsibility for Swogger's defense many months in advance of trial and he diligently represented Swogger through trial and sentencing.
{¶59} Accordingly, given the timing of the motion in this case and the lack of any credible evidence to substantiate Swogger's contentions concerning his trial attorney we conclude the trial court did not abuse its discretion in refusing to declare a mistrial.
{¶60} Swogger's Second Assignment of Error is overruled.
{¶61} The judgment of the Stark County Court of Common Pleas is affirmed. By Gwin, P.J., Hoffman, J., and Delaney, J., concur