Court of Appeals of Ohio, Second District, Montgomery
Appeal from Municipal Court T.C. NO. 16-TRD-1240
C. THOMAS, Prosecuting Attorney, Wilmington Pike, Kettering,
Attorney for Plaintiff-Appellee.
J. O'BRIEN, Talbott Tower, Ludlow Street, Dayton Attorney
1} After a bench trial in Kettering Municipal Court,
Angela Harris was found guilty of a marked lanes violation,
in violation of R.C. 4511.33, a minor misdemeanor. The charge
stemmed from a two-vehicle collision at the intersection of
West Alex Bell and McEwen Roads in Washington Township, Ohio.
The trial court imposed a $25 fine and court costs. As a
result of the conviction, two points would be assessed on
Harris's driver's license. At Harris's request,
the trial court stayed the judgment pending appeal.
2} Harris raises three assignments: (1) the trial
court erred in failing to inform her of and obtain a waiver
of her right to counsel, (2) the trial court committed plain
error in allowing a deputy to testify as an accident
reconstruction expert, and (3) her conviction was based on
insufficient evidence and was against the manifest weight of
the evidence. We will address them in an order that
facilitates our analysis.
3} For the following reasons, the trial court's
judgment will be affirmed.
Defendant's Right to Counsel
4} In her first assignment of error, Harris claims
that the trial court erred in failing to inform her of her
right to counsel. Harris further states that she never
knowingly, intelligently, and voluntarily waived her right to
5} In State v. Wheeler, 2016-Ohio-2964, 65
N.E.3d 182 (2d Dist.), we discussed a defendant's right
to counsel when he (or she) is charged with a minor
"[A] defendant has no constitutional right to
court-appointed counsel when a criminal prosecution carries
no possibility of incarceration." (Citations omitted.)
State v. Woods, 2d Dist. Montgomery No. 16665, 1998
WL 906786, *4 (Dec. 31, 1998). Rather, a defendant merely has
the right to retain counsel of his or her own choice.
State v. Bettah, 5th Dist. Licking No. 05 CA 50,
2006-Ohio-1916, ¶ 42. Under that circumstance, we have
held that a trial court is not obligated to advise a
defendant of the right to counsel or to obtain a waiver of
that right. State v. Minne, 2d Dist. Montgomery No.
23390, 2010-Ohio-2269, ¶ 20, citing State v.
Sturgill, 3d Dist. Auglaize No. 2-01-34, 2002 WL 596114,
*2 (Apr. 18, 2002), and State v. Wiest, 1st Dist.
Hamilton No. C-030674, 2004-Ohio-2577, ¶ 26-27.
* * * Wheeler was charged with a minor misdemeanor, which
does not carry the possibility of incarceration. Because he
was not facing the possibility of incarceration, Wheeler had
no right to a court-appointed counsel and the trial court did
not have any obligation to advise Wheeler of the right to
counsel or to obtain a waiver of that right. Therefore, we do
not find that the trial court's failure to obtain a
waiver of the right to counsel violated due process, as
Wheeler had no such right to waive. Without this right, the
act of determining whether Wheeler understood the
ramifications of representing himself or his capability of
doing so was unwarranted.
Wheeler at ¶ 23-24.
6} Here, Harris was charged with a marked lanes
violation, in violation of R.C. 4511.33. Pursuant to R.C.
4511.33(B), a marked lanes violation is generally a minor
misdemeanor. As discussed in Wheeler, because
a minor misdemeanor does not carry the possibility of
incarceration, Harris had no right to court-appointed
counsel, and the trial court was not required to inform her
of her right to counsel and to obtain a waiver of her right
7} Harris's first assignment of ...