State v. Lee

[Cite as State v. Lee, 

.]


                                             COURT OF APPEALS
                                           LICKING COUNTY, OHIO
                                         FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                    :       JUDGES:
                                                  :       Hon. William B. Hoffman, P.J.
          Plaintiff - Appellee                    :       Hon. Kevin W. Popham, J.
                                                  :       Hon. David M. Gormley, J.
 -vs-                                             :
                                                  :
 BILLY S. LEE                                     :       Case No. 2024 CA 00049
                                                  :
          Defendant - Appellant                   :       OPINION



 CHARACTER OF PROCEEDING:                                 Appeal from the Licking County
                                                          Court of Common Pleas, Case No.
                                                          2023 CR 00613




 JUDGMENT:                                                Affirmed




 DATE OF JUDGMENT:                                        March 13, 2025




 APPEARANCES:

 For Plaintiff-Appellee                                   For Defendant-Appellant

 KENNETH W. OSWALT                                        BRIAN A. SMITH
 Assistant Prosecuting Attorney                           123 S. Miller Rd., Suite 250
 20 S. Second St., 4th Floor                              Fairlawn, Ohio 44333
 Newark, Ohio 43055
[Cite as State v. Lee, 

.]


 Gormley, J.

          {¶1} Defendant-Appellant Billy Lee appeals his conviction following a jury trial in

 the Licking County Court of Common Pleas for possession of a fentanyl-related

 compound. Lee argues that the trial court violated his right to counsel by allowing him to

 represent himself at trial and that his conviction was against the manifest weight of the

 evidence. For the reasons explained below, we affirm the trial court’s judgment.

 Facts and Procedural History

          {¶2} In August 2023, Newark police officer Wesley Jackson initiated a traffic stop of

 a vehicle being driven by Oscar Evans. Lee was the owner of the vehicle and was

 seated in the front passenger seat. Lee told the officer that he had a pistol in his

 possession, and Officer Jackson took the weapon without incident. With Lee’s consent,

 Jackson then searched the vehicle.

          {¶3} During his search, Jackson found two small containers with a white powder-

 like substance in them. Jackson also found in the vehicle three bags, one of which had

 the name “Billy” written on it, and another contained a bank card with the name “Billy Lee”

 on it.

          {¶4} Newark police officer Adam Carter arrived at the scene to assist with the

 traffic stop. Carter testified that Lee inconsistently described his travels in recent hours.

 Officer Carter further testified that Lee initially claimed ownership of the containers and

 said that the contents were “candy.” After being shown the containers, though, Lee denied

 ownership and stated that he forgot he had taken his candy out of the vehicle earlier in

 the day. Subsequent testing of the containers’ contents found that they contained more

 than one gram of fentanyl.
[Cite as State v. Lee, 

.]


          {¶5} Lee was indicted in Licking County on one count of possession of a fentanyl-

 related compound — a fourth-degree felony — with an accompanying one-year firearm

 specification. Lee was represented by court-appointed counsel from the case’s earliest

 days through the morning of trial. On April 10, 2024, Lee’s jury trial was scheduled to

 begin. That morning, though, Lee informed the court of his desire to fire his attorney and

 represent himself.

          {¶6} A lengthy discussion then followed between the trial judge and Lee. The

 judge pointed out that Lee’s lawyer was “experienced,” and the judge asked Lee why he

 wanted to represent himself. Lee explained that he believed in himself, though he was

 willing to treat the attorney as his “co-counsel.” “No,” the judge told him. “You either

 represent yourself or he represents you.” Lee responded, “I represent myself.”

          {¶7} The judge turned next to the penalties, pointing out to Lee that the firearm

 specification, if proven, would result in a “mandatory term of one year in the state

 penitentiary.” As for the drug charge, the judge told Lee that he faced a “maximum

 sentence” of “one and a half years in the state penitentiary.” Lee’s “total exposure,” the

 judge explained, was therefore “two and a half years at the state penitentiary.” When the

 judge asked Lee if he understood, Lee said “Yes, sir.”

          {¶8} The judge then noted to Lee that he was not charged with owning the drugs

 or the firearm but rather “just having had them in your possession or on or about your

 person or under your control.” Lee again said that he understood. And when the judge

 asked whether Lee understood “what constructive possession is,” Lee responded “Yes,

 sir.” Lee also told the judge that he had discussed that concept with his attorney. “And is
[Cite as State v. Lee, 

.]


 it still your intention here today to represent yourself?” the judge inquired. “Yes, sir,”

 responded Lee.

          {¶9} The judge next pointed out that Lee would be “held to the same rules of

 evidence as a lawyer would be.” Again, Lee said that he understood. Lee even responded

 “Yeah” when the judge asked whether Lee was “familiar with the rules of criminal

 procedure or the rules of evidence.”

          {¶10} The judge then touched again on the solo nature of self-representation,

 noting that “there is no co-counsel” and that the judge himself “cannot be your lawyer.”

 Lee said that he understood. If you “represent yourself,” the judge explained, “you can’t

 argue on appeal that you had ineffective assistance of counsel.” Lee said that he

 understood. “Do you understand, Mr. Lee, that by representing yourself here, you are on

 your own?” the judge inquired. “Yes, sir,” responded Lee.

          {¶11} Then the judge told Lee that he had “the right to remain silent and not to

 incriminate” himself. Lee again said that he understood. “[S]ometimes it’s just a lot easier

 for you to give statements with someone else asking you the questions,” the judge noted.

 Lee said “Yes, sir.”

          {¶12} The judge then discouraged Lee from representing himself, indicating that

 “in almost every case it would be my opinion that a trained lawyer would defend you far

 better than you could defend yourself” and that self-representation is “almost always

 unwise. You’re not familiar with the law. You’re not familiar with handling a trial. You’re

 not familiar with court procedures or the rules of evidence. And I would strongly urge you

 not to try to represent yourself.” When the judge asked whether Lee understood the

 judge’s position on that issue, Lee again said “Yes, sir.”
[Cite as State v. Lee, 

.]


          {¶13} As the colloquy neared its end, the judge asked again whether Lee still

 wanted to represent himself and to give up his “right to be represented by a lawyer.”

 “Yeah. Yes, sir,” was Lee’s response. “Are you making this decision freely, and does it

 reflect your personal desire?” asked the judge. “Yes, sir,” said Lee. And when the judge

 concluded by asking whether Lee had “any questions about anything” that the judge had

 addressed, Lee said “No.”

          {¶14} After this discussion, Lee signed a written waiver of his right to be

 represented by counsel. His appointed counsel was instructed to remain present

 throughout the trial as standby counsel for Lee.

          {¶15} At the conclusion of the trial, the jury found Lee guilty on the drug-

 possession charge and also found that the prosecution had proven the firearm

 specification. The trial judge imposed a 12-month sentence on the drug charge plus the

 mandatory one-year prison term on the firearm specification.

 Lee’s Right to Counsel Was Not Violated

          {¶16} In his first assignment of error, Lee argues that his waiver of his right to

 counsel in the trial court was not knowing, intelligent, and voluntary. We disagree.

          {¶17} The Sixth Amendment, of course, provides that an accused is entitled to the

 assistance of counsel in a criminal case. U.S. Const., amend. VI. A criminal defendant

 also has the constitutional right to represent himself at trial. Faretta v. California, 

, 831–832 (1975). Any decision by a criminal defendant to waive his right to counsel

 and to represent himself must be made knowingly, intelligently, and voluntarily. Iowa v.

 Tovar, 

 (2004). “A criminal defendant must unequivocally and explicitly
[Cite as State v. Lee, 

.]


 invoke the right to self-representation.” State v. Belt, 

 (5th Dist.),

 quoting State v. Cassano, 

.

          {¶18} Further, Crim.R. 44(A) requires that a criminal defendant who is charged

 with a serious offense be represented by counsel unless, after being fully advised of that

 right to counsel, the defendant knowingly, intelligently, and voluntarily waives that right.

 The waiver must occur in open court and be recorded, and — in the case of a serious

 offense — the waiver must be in writing. Crim.R. 44(C). A “serious offense” includes any

 felony. Crim.R. 2(C). To comply with Crim.R. 44(A), the trial court must make an inquiry

 sufficient to determine whether the defendant “fully understands and intelligently

 relinquishes [his] right.” State v. Rolf, 

 (5th Dist.), quoting State v.

 Gibson, 

 (1976), paragraph two of the syllabus.

          {¶19} While state and federal courts have not prescribed a formula or script that

 must be read to a defendant who wishes to proceed without counsel, higher courts have

 explained that “[t]he information a defendant must possess in order to make an intelligent

 election . . . will depend on a range of case-specific factors, including the defendant’s

 education or sophistication, the complex or easily grasped nature of the charge, and the

 stage of the proceeding.” State v. Johnson, 

, ¶ 101, quoting 

.

          {¶20} We review the validity of a defendant’s waiver without deference to the trial

 court’s decision. State v. Grimes, 

 (5th Dist.). Whether a defendant

 has made a knowing, intelligent, and voluntary waiver of his right to counsel is determined

 by the totality of the circumstances. State v. Hundley, 

, citing State

 v. Moore, 

 (1998). A defendant who wishes to represent himself

 “should be made aware of the dangers and disadvantages of self-representation, so that
[Cite as State v. Lee, 

.]


 the record will establish that ‘he knows what he is doing.’” 

, quoting

 Faretta, 

.

          {¶21} The colloquy between Lee and the trial court shows that Lee knowingly,

 intelligently, and voluntarily waived his constitutional right to counsel. The trial court

 informed Lee that he had a constitutional right to be represented by counsel and advised

 Lee that it would be unwise to represent himself. Lee said that he understood. Lee was

 told that he would be held to the same procedural and evidentiary rules that attorneys are

 required to abide by. Lee said that he understood. The court advised Lee, too, that the

 firearm specification carried a mandatory term of one year of incarceration and that the

 maximum prison sentence on the drug charge was 18 months. The total possible

 sentence in the case was therefore, the judge told Lee, “two and a half years at the state

 penitentiary.” Again, Lee said that he understood.

          {¶22} Further, the trial judge reminded Lee that “you’re not charged with owning

 any of these things, just having had them in your possession or on or about your person

 or under your control,” and asked Lee if he understood what constructive possession was.

 Lee said that he did and that he had discussed constructive possession with his attorney.

 That attorney was present for the judge’s morning-of-trial colloquy with Lee, and the

 attorney told the judge that he — the attorney — had met with Lee 11 times while Lee

 was awaiting trial. The judge ended the discussion with Lee by stating “I would strongly

 urge you not to try to represent yourself.” Lee said that he understood.

          {¶23} Throughout the conversation with the trial court, Lee unequivocally and

 explicitly invoked his right to self-representation by stating numerous times that he was
[Cite as State v. Lee, 

.]


 going to represent himself. Following this discussion, Lee maintained that it was his desire

 to represent himself, and he signed a written waiver of his right to counsel.

         {¶24} After a review of the record, and based on the totality of the circumstances,

 we find that Lee knowingly, intelligently, and voluntarily waived his right to counsel.

         {¶25} In support of his contrary view here, Lee says that the trial judge, before

 approving Lee’s request to represent himself, did not adequately discuss with Lee the

 potential defenses that he might be able to present at a trial. Ohio courts, however, have

 not imposed on trial judges any obligation to explain potential defenses at waiver-of-

 counsel hearings. See State v. Rivers, 

 (11th Dist.) (finding that a

 defendant’s self-representation decision was knowing, intelligent, and voluntary where

 the defendant said “Yes” in response to the trial judge’s question “Do you know what

 defenses are available to assert to a jury in this case?”); State v. Logan, 

 (3d Dist.) (rejecting a defendant’s claim that his decision to represent himself

 was not knowing, intelligent, and voluntary where the trial court did not “advise him of the

 possible defenses”); City of Akron v. Ragle, 

 (9th Dist.) (“This Court

 . . . will not adopt a rule which requires a trial court judge to . . . undertake pseudo-legal

 representation of a defendant by specifically advising him of possible viable defenses or

 mitigating circumstances existing in his case”).

         {¶26} And though Lee cites State v. Gibson, 

 (1976), “the facts

 of Gibson reveal that the defendant in that case was not specifically advised of possible

 defenses or mitigating circumstances.” (Emphasis in original.) Ragle, 

 (9th Dist.). Even so, in Gibson the Court expressed its “satisf[action] that the
[Cite as State v. Lee, 

.]


 defendant[] knowingly, voluntarily and intelligently elected to defend himself.” 

.

          {¶27} We readily conclude that Lee’s assurance to the trial judge that he — Lee

 — understood the concept of constructive possession and that he had spoken with his

 attorney about that concept provides ample support, when coupled with all of the other

 information in the colloquy, for our conclusion that Lee’s waiver of counsel was knowing,

 intelligent, and voluntary.

          {¶28} Lee claims, too, that the trial judge had an obligation to talk with him about

 each of the possible prison terms that he could have received for the fourth-degree-felony

 drug-possession charge. The judge’s explanation of the maximum prison term for that

 charge was insufficient, he says, and he again cites State v. Gibson. Here again, Lee

 misreads Gibson’s holding. Though the Supreme Court in Gibson quoted a 1948 U.S.

 Supreme Court decision that mentioned the importance of a defendant’s understanding

 of the “range of allowable punishments” at any waiver-of-counsel hearing, the Court in its

 holding in Gibson found defendant Gibson’s waiver of counsel to have been knowing,

 intelligent, and voluntary where the trial judge had addressed only the “maximum penalty”

 for the crime at issue. 

. And this court, since Gibson, has

 indicated that a discussion about the maximum penalty — rather than the “range” of

 penalties — is sufficient at a waiver-of-counsel hearing. See, e.g., State v. Ruse, 2005-

 Ohio-734, ¶ 33-34 (5th Dist.) (finding that a defendant “voluntarily, knowingly and

 intelligently waived his right to counsel” where “the trial court informed appellant of the

 charges and the possible maximum sentences”).
[Cite as State v. Lee, 

.]


          {¶29} Finally, Lee contends that the trial judge failed to apprise him about the

 nature of the drug-possession charge and the specification. Any suggestion on Lee’s part,

 though, that he was uncertain about his drug charge or about the specification is surely

 not supported by the record. Lee was indicted in August 2023, and his trial was held in

 April 2024. He was represented by counsel throughout those eight months before the

 trial, and his lawyer met with him 11 times to prepare for the trial. In response to the trial

 judge’s questions, Lee said on the morning of trial that he understood that he faced

 charges involving his possession of the drugs and the firearm rather than ownership of

 those items. Again, he indicated, too, that he understood the concept of constructive

 possession and had discussed that concept with his attorney.

          {¶30} We find ample support in this record for our conclusion that Lee knew what

 he was doing when he chose to represent himself on the drug and firearm allegations.

          {¶31} Lee’s first assignment of error is overruled.

 Lee’s Conviction Was Not Against the Manifest Weight of the Evidence

          {¶32} In his second assignment of error, Lee contends that his conviction was not

 supported by the manifest weight of the evidence, and he focuses in particular on the

 issue of his alleged constructive possession of the drugs found in his vehicle.

          {¶33} In determining whether a conviction was against the manifest weight of the

 evidence, an appellate court acts as a thirteenth juror, and “after ‘reviewing the entire

 record, weighs the evidence and all reasonable inferences, considers the credibility of

 witnesses and determines whether in resolving conflicts in the evidence, 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. Hane, 

 (5th Dist.),
[Cite as State v. Lee, 

.]


 quoting State v. Thompkins, 

 (1997). The reversal of a conviction

 on manifest-weight grounds should occur only in “the ‘exceptional case in which the

 evidence weighs heavily against the conviction.’” 

          {¶34} “Weight of the evidence concerns ‘the inclination of the greater amount of

 credible evidence, offered in a trial, to support one side of the issue rather than the other.

 It indicates clearly to the jury that the party having the burden of proof will be entitled to

 their verdict, if, on weighing the evidence in their minds, they shall find the greater amount

 of credible evidence sustains the issue which is to be established before them.’”

 (Emphasis in original.) 

. “[A]n appellate court will leave the issues of

 weight and credibility of the evidence to the factfinder, as long as a rational basis exists

 in the record for its decision.” State v. Sheppard, 

 (5th Dist.).

          {¶35} Possession in a drug case is defined as “having control over a thing or

 substance, but may not be inferred solely from mere access to the thing or substance

 through ownership or occupation of the premises upon which the thing or substance is

 found.” R.C. 2925.01(K). Possession may be actual or constructive. State v. Harvath,

 

 (5th Dist.). Actual possession entails ownership and physical

 control. State v. Holland, 

 (5th Dist.). “Constructive possession exists

 when an individual knowingly exercises dominion and control over an object, even though

 that object may not be within his immediate physical possession.” 

, quoting

 State v. Wolery, 

 (1976). “Dominion and control may be proved by

 circumstantial evidence alone.” Harvath at ¶ 32, citing State v. Trembly, 

 (8th Dist. 2000).
[Cite as State v. Lee, 

.]


          {¶36} “Whether a person acts knowingly can only be determined, absent a

 defendant’s admission, from all the surrounding facts and circumstances, including the

 doing of the act itself.” State v. Davis, 

 (5th Dist.), quoting State v.

 Gross, 

 (5th Dist.). A defendant’s close proximity to contraband is

 circumstantial evidence that may show constructive possession. Id. at ¶ 25, citing State

 v. Butler, 

 (1989). The presence of multiple individuals in the

 location in which contraband is found does not prohibit a jury from finding that a defendant

 constructively possessed the contraband. Id. at ¶ 26.

          {¶37} Lee’s conviction was not against the manifest weight of the evidence. To be

 sure, he denied that the drugs were his when he was questioned by officers at the scene

 of his arrest. During the trial, though, Officer Carter testified that Lee initially claimed

 ownership of “candy” that was in the vehicle. When Carter showed Lee the containers of

 suspected fentanyl, Lee claimed that they did not belong to him and that he had taken his

 candy out of the vehicle earlier in the day.

          {¶38} During the trial, the prosecution presented evidence showing that Lee was

 the owner of the vehicle where the drugs were found and that he admitted to driving the

 vehicle earlier in the day. In addition to the containers of fentanyl found on the driver’s-

 side floorboard, officer Jackson found in the vehicle one bag with the name “Billy” written

 on it, and another bag in the vehicle contained a bank card with Lee’s full name on it.

          {¶39} Moreover, Officer Jackson testified that when he asked if there was any

 “fetty” in the car (“fetty” being a street name for fentanyl), Lee — according to Jackson’s

 trial testimony — “looked down at the driver’s side floorboard” where the fentanyl was
[Cite as State v. Lee, 

.]




          later found. Further, Officer Carter testified that Lee appeared to be nervous

 and provided inconsistent statements regarding his travels in the hours before the

 traffic stop.

          {¶40} Though Lee was in the passenger seat when he was stopped , the jury

 had ample evidence before it to conclude that Lee was in constructive possession of

 the drugs that were found on the driver's-side floorboard in his vehicle, and of course

 the firearm itself was in his actual possession.

          {¶41} After reviewing the record, we find that a rational basis exists in the

 record to support the jury 's conclusion that Lee did have possession of the fentanyl

 and the gun. Lee's second assignment of error is overruled .

          {¶42} For the reasons explained above, we affirm the judgment of the trial

 court.


 By: Gormley, J.

 Hoffman, P.J. and

 Popham, J. concur.