State v. Smith

[Cite as State v. Smith, 2026-Ohio-3415.] IN THE OHIO COURT OF APPEALS FIFTH APPELLATE DISTRICT LICKING COUNTY, OHIO STATE OF OHIO, Case No. 2026 CA 00020 Plaintiff - Appellee Opinion & Judgment Entry -vs- Appeal from the Court of Common Pleas of Licking County, TREVOR J. SMITH, Case No. 2024 CR 00178 Defendant - Appellant Judgment: Affirmed Date of Judgment: September 1, 2026 BEFORE: Craig R. Baldwin, Andrew J. King, and David M. Gormley, Judges APPEARANCES: Jenny R. Wells (Licking County Prosecuting Attorney) and Kenneth W. Oswalt (Assistant Prosecuting Attorney), Newark, Ohio, for Plaintiff-Appellee; Christopher D. Brigdon, Thornville, Ohio, for Defendant-Appellant. Gormley, J. {¶1} Defendant Trevor Smith argues in this appeal that the trial court should have granted his trial attorney’s request to withdraw as Smith’s counsel. Smith claims, too, that the trial judge’s jury instruction on the term “knowingly” misled the jury and improperly lessened the State’s burden of proof on a felony charge of improperly handling a firearm in a motor vehicle. Finding no error, we affirm the trial court’s judgment. The Key Facts {¶2} When a police officer effected a traffic stop of Smith’s vehicle after Smith ran a red light, Smith told the officer at the roadside that he had a firearm in his vehicle. After participating in some roadside field-sobriety tests, Smith was arrested for operating his vehicle while under the influence of alcohol. A subsequent inventory search of the vehicle led officers to discover the firearm that Smith had mentioned. That handgun was in the glove box of the vehicle, and in it was a magazine containing three rounds of ammunition. {¶3} Smith was indicted in 2024 on one fifth-degree-felony charge of improperly handling a firearm in a motor vehicle under R.C. 2923.16(D)(1) (banning a defendant’s knowing transportation of a loaded handgun in a motor vehicle when he or she was under the influence of alcohol). {¶4} By the time Smith’s jury trial began in March 2026, he was represented by his third court-appointed attorney, with the first two having departed due to clashes with Smith over the proper handling of his case. Smith had sought and been granted at least 12 court- date continuances in the case, and he had also failed to appear in October 2025 when his jury trial had been scheduled to begin. {¶5} On the day before the March 2026 trial date, Smith’s third court-appointed attorney asked to withdraw from the case, citing a breakdown in communication and some “fundamental differences” with Smith. The trial judge denied that request. {¶6} Then on the morning of trial, defense counsel raised the issue again, saying that Smith did not want her to represent him. Smith himself addressed the trial judge, saying that his attorney had “completely refused to defend” him. After listening to Smith’s concerns, the judge informed him that the trial would begin that day as scheduled with Smith’s appointed counsel remaining on the case. {¶7} The jury at Smith’s trial found him guilty, and he now appeals. We Find No Error in the Trial Court’s Denial of Defense Counsel’s Motion to Withdraw {¶8} Smith argues first that the trial court should have granted his attorney’s motion to withdraw as counsel. We disagree.  {¶9} We review for an abuse of discretion a trial court’s decision regarding a defendant’s request for substitute counsel. State v. Gordon, 2025-Ohio-1229, ¶ 18 (5th Dist.). An abuse of discretion has occurred when the trial court’s decision was “unreasonable, arbitrary, or unconscionable” and was not “merely an error of law or judgment.” State v. Thompson, 2015-Ohio-92, ¶ 18 (5th Dist.), citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). {¶10} An indigent defendant is of course entitled to court-appointed representation in a criminal case. State v. Hepp, 2025-Ohio-1202, ¶ 12 (2d Dist.); U.S. Const., amend. VI. A defendant who cannot afford to hire his or her own attorney, however, does not have the right to choose the attorney. Id. {¶11} A defendant who requests a different court-appointed attorney bears the burden of demonstrating good cause that a substitution of counsel is warranted, and the trial court has a duty to inquire about a defendant’s counsel-related complaints only when the defendant’s allegations are “sufficiently specific.” Gordon at ¶ 17. A trial judge may order a scheduled trial to proceed with currently assigned counsel if the defendant’s complaint is not substantiated or is unreasonable. State v. Deal, 17 Ohio St.2d 17 (1969), syllabus. {¶12} In order to demonstrate the necessary good cause to warrant a substitution of court-appointed counsel, a defendant “must show a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant’s” right to the effective assistance of counsel guaranteed by the Sixth Amendment. State v. Anderson, 2021-Ohio-3298, ¶ 13 (5th Dist.). Disagreements regarding trial strategy or tactics do not warrant the substitution of counsel, and “mere hostility, tension[,] and personal conflicts” between the attorney and the defendant do not constitute a total breakdown in communication if those problems do not interfere with the preparation and presentation of a defense. Id. {¶13} Factors we consider when deciding “whether a trial court erred in denying a defendant’s motion to substitute counsel include ‘the timeliness of the motion; the adequacy of the court’s inquiry into the defendant’s complaint; and whether the conflict between the attorney and client was so great that it resulted in a total lack of communication preventing an adequate defense.’” State v. Jones, 91 Ohio St.3d 335, 342 (2001), quoting United States v. Jennings, 83 F.3d 145, 148 (6th Cir. 1996). {¶14} Smith’s third court-appointed attorney filed a motion to withdraw as counsel one day before the jury trial was to begin. In that motion, the attorney pointed to irreconcilable differences regarding trial strategy and motion practice that had caused a breakdown in communication with Smith. The trial court denied the attorney’s request to withdraw and also denied an accompanying motion to continue Smith’s jury trial. {¶15} Then on the morning of trial, the parties discussed on the record the motion to withdraw and the motion to continue from the previous day. Smith’s attorney informed the court that Smith did not want her to represent him and said that Smith wanted to speak on his own behalf about his request for a different attorney and his latest continuance motion. The judge listened to Smith’s grievances and then reminded Smith that defense counsel was the third appointed attorney in the case. The judge mentioned, too, that 12 motions to continue filed by Smith had already been granted. {¶16} Smith responded by stating that his current attorney was refusing to defend him, and he claimed that none of his court-appointed attorneys had filed the pretrial motions and witness subpoenas that he believed were important. Smith then asserted that he wanted additional time to retain his own attorney. In response, the judge said that Smith had been given plenty of time to hire his own attorney. {¶17} Though Smith now claims that the trial judge should have engaged with him in a more searching inquiry about his concerns, we find no shortcomings in the trial court’s handling of the issue. The back-and-forth conversation between Smith and the judge spans nearly nine pages of printed transcript, indicating to us that Smith had a full and fair opportunity to demonstrate why he believed that substitute counsel was needed. {¶18} The timing of the attorney’s and of Smith’s requests for new counsel is important. The issue was raised on the day before and on the day of a jury trial. And given that Smith had similarly expressed dissatisfaction with his first two appointed attorneys, the trial judge could rightly question whether the latest requests were simply part of an overall strategy of delay. See State v. Sampson, 2026-Ohio-1381, ¶ 28 (8th Dist.) (“when timing is an issue, the trial court may determine whether the defendant's request for new counsel was made in bad faith”); State v. Haberek, 47 Ohio App.3d 35, 41 (8th Dist. 1988) (“a motion to substitute counsel made on the day of trial . . . intimates such motion is made in bad faith for the purposes of delay”). {¶19} The vagueness of Smith’s assertions is important as well. Though Smith said that his attorneys should have filed some pretrial motions, should have issued trial subpoenas, and should have gathered more evidence, he never specified what motions were needed, which potential witnesses ought to have been brought in to testify, or what relevant evidence was still undiscovered. When Smith did indicate that he wanted to see his wallet that was being held at the county jail, the trial judge made arrangements for that item to be brought to the courthouse for the trial.  {¶20} We note, too, that the motion to withdraw filed by Smith’s first court-appointed attorney indicates that Smith’s requested pre-trial motions had no merit. When Smith raised anew on the morning of trial the notion that unspecified pretrial motions should have been filed, the trial judge could have rightly looked askance at Smith’s resurrection of that idea. See State v. Bosby, 2011-Ohio-599, ¶ 13 (8th Dist.) (“We cannot agree that his trial counsel's refusal to file a frivolous motion equates to a deprivation of counsel. Indeed, defense counsel has an ethical duty not to file frivolous motions”). {¶21} And while Smith’s third attorney informed the court both the day before and on the morning of trial that she no longer wished to represent Smith, she never said that she was unprepared or that she could not effectively represent Smith. That attorney did in fact fully engage in all aspects of Smith’s two-day jury trial, participating in the jury-selection process, delivering an opening statement, cross-examining witnesses, and presenting a closing argument. {¶22} In the end, we see no error in the trial court’s handling of not only defense counsel’s motion to withdraw but also Smith’s related request for a fourth court-appointed attorney (or for his own private counsel). No abuse of discretion occurred when the trial judge opted to press ahead with the scheduled trial without swapping out an attorney who was ready and able to represent her uncooperative client. Smith’s first assignment of error is overruled. Any Error in the Jury Instructions Did Not Change the Outcome of Smith’s Trial {¶23} Smith argues in his second assignment of error that the trial judge gave jurors an improper instruction on the improper-handling charge. {¶24} When explaining the “knowingly” element of the offense, the judge said that the jury was to determine whether, at the time of the alleged offense, there existed in Smith’s mind “an awareness of the probability that he had a handgun.” Smith argues that the judge’s failure to mention the word “loaded” before the word “handgun” improperly lessened the State’s burden of proof on the “knowingly” element. {¶25} Yet Smith did not object to the instruction during the trial. We therefore review his jury-instruction challenge solely for plain error. “When the defendant forfeits the right to assert an error on appeal by failing to bring it to the trial court’s attention in the first instance, an appellate court applies plain-error review.” State v. Jones, 2020-Ohio-3051, ¶ 17, citing State v. Rogers, 2015-Ohio-2459, ¶ 21-22. See also Crim.R. 52(B). {¶26} Under plain-error review, a defendant bears the burden of “‘showing that but for a plain or obvious error, the outcome of the proceeding would have been otherwise.’” Jones at ¶ 17, quoting State v. Quarterman, 2014-Ohio-4034, ¶ 16. A reviewing court should “notice plain error ‘with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’” State v. Barnes, 94 Ohio St.3d 21, 27 (2002), quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. {¶27} “An unnecessary, ambiguous, or even affirmatively erroneous portion of a jury charge does not inevitably constitute reversible error.” Cromer v. Children’s Hosp. Med. Ctr. of Akron, 2015-Ohio-229, ¶ 35. An erroneous jury instruction does not constitute plain error unless “‘but for the error, the outcome of the trial clearly would have been otherwise.’” State v. Cooperrider, 4 Ohio St.3d 226, 227 (1983), quoting Long at 97. {¶28} The R.C. 2923.16(D)(1) charge against Smith alleged that he had “knowingly transport[ed] or ha[d] a loaded handgun in a motor vehicle” when he was “under the influence of alcohol.”  {¶29} After the judge had instructed the jury on what “knowingly” meant — stating (using words nearly matching those in the first sentence of R.C. 2901.22(B)) that “a person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or he is aware that his conduct will probably be of a certain nature” — the judge told jurors that they should determine from the evidence whether “there existed at the time in the mind of the defendant an awareness of the probability that he had a handgun.” Smith argues that the judge should have instead stated that the jury should determine whether there existed in Smith’s mind an awareness of the probability that he had a loaded handgun. {¶30} Before reading aloud to the jurors the phrase that Smith now challenges, the judge had instructed the jury that Smith should be found guilty if and only if the jury found beyond a reasonable doubt that Smith “knowingly transported or had a loaded handgun in a motor vehicle” while he was under the influence of alcohol. The judge also told jurors that “loaded means not unloaded,” and he provided a lengthy definition for “unloaded.” {¶31} As for what jurors had heard during the presentation of evidence, a police officer had testified that Smith stated during the roadside stop — with no prompting from the officer — that a handgun was in the vehicle. Jurors heard, too, that the gun was found in Smith’s glove box, that a magazine had been inserted into that firearm, and that the magazine contained three rounds of ammunition. {¶32} During his own trial testimony, Smith told jurors that the gun in question belonged to him. Jurors also saw and heard the police officer’s body-worn-camera footage on which Smith can be heard telling the officer that a gun was in his vehicle, and Smith acknowledged during his trial testimony that bullets were in the magazine and that the magazine was in the gun that day.  {¶33} We find that the outcome of Smith’s trial would not have been different had the judge included the word “loaded” before the word “handgun” in the phrase that Smith challenges here. The jury was properly instructed on the meaning of loaded and unloaded, and the trial judge also accurately stated each element that the jury was required to find before it could determine that Smith was guilty on the R.C. 2923.16(D)(1) charge. The jury also saw from the body-worn-camera video footage that the handgun, when found in the glove box, contained a magazine, which in turn contained three rounds of ammunition. {¶34} And surely the State presented evidence that the handgun was in fact loaded. See R.C. 2923.16(K)(5)(a) (defining an “unloaded” firearm as one with “no ammunition” in it and “no magazine . . . containing ammunition . . . inserted” into it). Even if Smith at the time mistakenly believed that his handgun was not loaded because no bullet was in the chamber, his unfamiliarity with the law would not have absolved him from culpability on the charge. State v. Thompson, 2017-Ohio-8375, ¶ 27 (10th Dist.) (“Mistake of law is not a defense in Ohio”). {¶35} As for Smith’s intoxication, the State had no obligation to prove that he knew he was under the influence at the time of his encounter with the officer, so of course no jury instruction linking knowingly to the under-the-influence element of the crime was needed or would have been appropriate. See State v. Tolliver, 2014-Ohio-3744, ¶ 10 (“The state need prove culpability only for the elements for which a mental state is specified in the section defining the offense, and courts should not fill any gaps by inserting culpability requirements that the text and ordinary rules of construction cannot bear”); State v. Culver, 2005-Ohio-1359, ¶ 68 (2d Dist.) (describing operating a vehicle while under the influence as a “strict liability” offense that “does not require a culpable mental state”).  {¶36} In sum, the outcome of Smith’s trial would have been no different had the trial judge included the word “loaded” when the judge told jurors to determine whether, at the time of the alleged offense, there existed in Smith’s mind “an awareness of the probability that he had a handgun.” Because we see no plain error in the instruction that was given to the jury, we overrule Smith’s second assignment of error. {¶37} For these reasons, the judgment of the Court of Common Pleas of Licking County is affirmed. Costs are to be paid by Defendant Trevor Smith. By: Gormley, J.; King, P.J. and Baldwin, J. concur.