[Cite as State v. Wells, 2024-Ohio-2155.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 30549
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE EUGENE WELLS COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR-2019-08-2669
DECISION AND JOURNAL ENTRY
Dated: June 5, 2024
CARR, Judge.
{¶1} Appellant, Eugene Wells, appeals the judgment of the Summit County Court of
Common Pleas. This Court affirms.
I.
{¶2} This matter arises out of a shooting that occurred at a convenience store in Akron
on June 3, 2019. W.M. died as a result of the incident.
{¶3} In connection with the shooting, the Summit County Grand Jury indicted Wells on
one count of murder with a firearm specification; one count of felony murder with a firearm
specification; one count of felonious assault with a firearm specification; and two counts of having
weapons while under disability. Wells pleaded not guilty to the charges at arraignment.
{¶4} The matter proceeded to a jury trial. The State moved to dismiss one count of
having weapons while under disability. The jury found Wells guilty of the four remaining counts 2
and the attendant specifications. After conducting a merger analysis, the trial court imposed a total
sentence of 18 years to life imprisonment.
{¶5} On appeal, Wells raises three assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING A CONTINUANCE.
ASSIGNMENT OF ERROR II
THE TRIAL COURT VIOLATED DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL.
{¶6} In his first assignment of error, Wells argues that the trial court abused its discretion
in denying his motion for a continuance on the first day of trial. In his second assignment of error,
Wells argues that the trial court violated his right to counsel by denying him the ability to select
an attorney of his choosing.
Background
{¶7} The arguments that Wells makes in support of his first and second assignments of
error arise out of events that occurred on the first day of trial. Wells was indicted on August 8,
2019. In addition to several pretrial delays that were attributable to the COVID-19 pandemic, the
trial court granted multiple continuance at Wells’ request. The matter was also continued on one
occasion at the request of the State. The parties ultimately appeared for trial on November 14,
2022.
{¶8} When the parties appeared for trial, Wells informed the trial court that he wished to
dismiss defense counsel for ineffectiveness. Though Wells noted that his family had a long-
standing relationship with defense counsel, and that defense counsel had been retained, Wells 3
suggested that defense counsel had aligned himself with the prosecution. Wells expressed
additional concerns over the fact that he had not been given an adequate opportunity to review
discovery. When given an opportunity to respond, defense counsel stated that he was prepared for
trial and that Wells’ concerns regarding an inappropriate relationship with the prosecution were
simply not true. Defense counsel also stated that he had addressed Wells’ concerns in the days
leading up to trial and that defense counsel understood those issues to be behind them. The
assistant prosecutor stated that defense counsel had undertaken zealous representation of Wells
during the plea-bargaining process and throughout the pretrial proceedings. The trial court
informed Wells that defense counsel had a formidable reputation. These comments
notwithstanding, Wells asked for a continuance in order to find new counsel.
{¶9} At that point, the deputy sheriff escorted Wells to the holding area and the attorneys
met with the trial court in chambers. The trial court then afforded Wells another opportunity to
confer with defense counsel. After the recess, the trial court stated on the record that it was
exercising its discretion to deny the motion for a continuance. The trial court noted that the case
had been pending for more than three years and that, due to the backlog created by the pandemic,
it could be as long as six months before the case could be rescheduled. After expressing concern
that Wells might be engaging in delay tactics, the trial court found that additional delays would
result in prejudice to the State and would be unfair to the witnesses and victims. The trial court
further observed that Wells had been working with defense counsel for the entirety of the case and
that defense counsel was prepared to proceed. In response to Wells’ assertion that defense counsel
had aligned himself with the prosecution, the trial court found that Wells had not presented any
evidence in support of those claims. 4
{¶10} After the trial court denied Wells’ motion, Wells indicated that he was in possession
of an unfiled, written motion that set forth his argument to dismiss defense counsel. After taking
a moment to review the motion, the trial court indicated that the motion did not identify any
additional evidence in support of Wells’ claim. To the extent Wells complained that defense
counsel had failed to procure a reasonable plea offer, the trial court noted that defense counsel did
not have unilateral authority in that regard. At that point, the assistant prosecutor stated that
defense counsel had attempted to get the murder charges reduced to either voluntary or involuntary
manslaughter, but the State had maintained its position that it would not enter into a plea agreement
unless Wells pleaded guilty to murder with the attendant firearm specification. Wells further
protested that he had not been given adequate time to review discovery but the trial court
maintained its position that a continuance was unwarranted.
{¶11} At the close of the discussion, the trial count informed Wells that he had the options
of proceeding with his defense counsel as his lawyer or proceeding pro se with defense counsel
serving as standby counsel. Wells responded that he preferred to represent himself without the
assistance of standby counsel. The trial court ruled that defense counsel would remain as standby
counsel. When defense counsel moved to withdraw, the trial court denied the motion on the basis
that permitting defense counsel to withdraw would not be in the interest of justice. The trial court
instructed the assistant prosecutor and defense counsel to ensure that Wells was in possession of
all written discovery. Upon noticing that there was a second defense attorney in the courtroom
who had experience with murder trials, the trial court asked Wells if he preferred the second
defense attorney to be appointed as standby counsel. Wells responded in the affirmative. The trial
court then called a lunch recess so that Wells could review discovery and the second defense
attorney could confer with original defense counsel. 5
{¶12} When the parties returned from the lunch recess, Wells informed the trial court that
he wished to proceed with original defense counsel representing him. Wells reached that decision
after speaking with original defense counsel and the second defense attorney over the lunch break.
The matter proceeded to trial with original defense counsel representing Wells.
Sixth Amendment Right to Counsel
{¶13} Wells contends that the trial court violated his Sixth Amendment right to counsel
by denying him the opportunity to select an attorney of his own choosing. Wells points to the
United States Supreme Court’s decision in United States v. Gonzalez-Lopez, 548 U.S. 140, 147
(2006), in support of the proposition that a trial court commits reversible error when it denies a
defendant capable of retaining counsel from selecting an attorney of his choosing.
{¶14} The Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for
his defence.” The Supreme Court has recognized that “an element of this right is the right of a
defendant who does not require appointed counsel to choose who will represent him.” Gonzalez-
Lopez at 144. Notably, while a criminal defendant has a constitutional right to his choice of
counsel, that right is not unqualified. State v. Keenan, 81 Ohio St.3d 133, 137 (1998). “[C]ourts
have recognized that [the defendant’s] right is balanced against the need for efficient and effective
administration of criminal justice.” (Internal quotations and citations omitted.) State v. Miller, 9th
Dist. Summit No. 27048, 2015-Ohio-279, ¶ 9. “[A] trial court [ ] [possesses] wide latitude in
balancing the right to counsel of choice against the needs of fairness * * * and against the demands
of its calendar[.]” (Internal citations omitted.) Gonzalez-Lopez at 152.
{¶15} Wells cites extensively to Gonzales-Lopez in his merit brief. Gonzales-Lopez
involved a scenario where a defendant was denied his choice of defense counsel when his preferred 6
attorney was denied admission pro hac vice on the grounds that the attorney had violated a
professional conduct rule. Id. at 142-143. The defendant was convicted after proceeding to trial
with substitute counsel. Id. at 143. The Government conceded that the defendant was denied his
right to an attorney of his choosing but argued that “the Sixth Amendment violation is not
‘complete’ unless the defendant can show that * * * substitute counsel’s performance was deficient
and that defendant was prejudiced by it.” Id. at 144. The Supreme Court rejected that argument
and concluded that the “[d]eprivation of the right is ‘complete’ when the defendant is erroneously
prevented from being represented by the lawyer he wants, regardless of the quality of the
representation he received.” Id. at 148. In reaching this conclusion, however, the Supreme Court
acknowledged that there were a number of limitations on the right to choose one’s counsel,
including the trial court’s broad discretion in balancing the right against the need for fairness and
against managing the demands of its docket. Id. at 152.
{¶16} In this case, Wells has failed to demonstrate that the trial court denied his Sixth
Amendment right to counsel. Unlike Gonzales-Lopez, this case does not involve a scenario where
Wells retained an attorney during the pretrial phase and the trial court denied him the opportunity
to work with that attorney. Instead, Wells appeared for trial and for the first time raised concerns
about defense counsel’s performance. Although the trial court expressed apprehension that Wells
was engaging in delay tactics, the trial court engaged in a lengthy colloquy where it provided Wells
with an opportunity to explain his concerns regarding defense counsel. Wells was unable to
substantiate his claims regarding defense counsel’s level of preparedness or an inappropriate
relationship with the prosecution. Notably, after the trial court allowed Wells the opportunity to
review written discovery with newly appointed standby counsel, Wells informed the trial court
that he wished for defense counsel to continue his representation. Furthermore, this matter 7
involved circumstances where the case had been pending for more than three years and continuing
the case would have resulted in another lengthy delay. Under these circumstances, Wells has failed
to demonstrate that the trial court denied him his Sixth Amendment rights.
{¶17} Wells’ second assignment of error is overruled.
Denial of the Motion for a Continuance
{¶18} In his first assignment of error, Wells suggests that the trial court abused its
discretion in denying his motion for a continuance. Wells argues that his concerns regarding
defense counsel outweighed the factors that supported the denial of a continuance. Although Wells
acknowledges that this case had been pending for a long time, he contends that many of those
delays were not attributable to him.
{¶19} An appellate court reviews a trial court’s ruling on a motion for a continuance for
an abuse of discretion. State v. Arcoria, 129 Ohio App.3d 376, 378 (9th Dist.1998); Swedlow v.
Reigler, 9th Dist. Summit No. 26710, 2013-Ohio-5562, ¶ 9. An abuse of discretion means more
than an error of judgment; it implies that the trial court’s attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶20} “In determining whether the trial court abused its discretion by denying a motion
for a continuance, this Court must ‘apply a balancing test, weighing the trial court’s interest in
controlling its own docket, including facilitating the efficient dispensation of justice, versus the
potential prejudice to the moving party.’” State v. Dawalt, 9th Dist. Medina No. 06CA0059-M,
2007-Ohio-2438, ¶ 10, quoting Burton v. Burton, 132 Ohio App.3d 473, 476 (3d Dist.1999). The
Supreme Court of Ohio has observed that
[i]n evaluating a motion for a continuance, a court should [consider]: the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or 8
contrived; whether the [movant] contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case.
State v. Unger, 67 Ohio St.2d 65, 67-68 (1981). “There are no mechanical tests for deciding when
a denial of a continuance is so arbitrary as to violate due process. The answer must be found in
the circumstances present in every case, particularly in the reasons presented to the trial judge at
the time the request is denied.” Id., quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964).
{¶21} Wells’ argument is without merit. Despite proceeding with retained defense
counsel for more than three years, Wells, on the first day of trial, moved for a continuance in order
to hire a new attorney. There is nothing in the record supporting Wells’ contentions that there
were issues with defense counsel’s preparedness or his relationship with the prosecution.
Moreover, the trial court noted that it could be as long as six months before the matter could be
rescheduled in light of the backlog created by the COVID-19 pandemic. Under these
circumstances, Wells has not demonstrated that the trial court’s decision to deny his motion for a
continuance was unreasonable, arbitrary, or unconscionable. It follows that the first assignment
of error is overruled.
{¶22} Wells’ first and second assignments of error are overruled.
ASSIGNMENT OF ERROR III
APPELLANT’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE; THEREFORE, HIS CONVICTIONS ARE IN VIOLATION OF THE OHIO STATE CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
{¶23} In his third assignment of error, Wells argues that his murder convictions were
against the manifest weight of the evidence. This Court disagrees.
In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine 9
whether, in resolving conflicts in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). An appellate court should exercise the
power to reverse a judgment as against the manifest weight of the evidence only in exceptional
cases. Id.
{¶24} The jury found Wells guilty of murder in violation of R.C. 2903.02(A), which
states, “[n]o person shall purposely cause the death of another[.]” R.C. 2901.22(A) states that “[a]
person acts purposely when it is the person’s specific intention to cause a certain result, or, when
the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the
offender intends to accomplish thereby, it is the offender’s specific intention to engage in conduct
of that nature.”
{¶25} The jury also found Wells guilty of felony murder in violation of R.C. 2903.02(B),
which states, “[n]o person shall cause the death of another as a proximate result of the offender’s
committing or attempting to commit an offense of violence that is a felony of the first or second
degree[.]” With respect to the felony murder charge, the indictment specified that Wells caused
the death of W.M. as a proximate result of Wells committing felonious assault, a second-degree
felony. R.C. 2903.11(A)(2) states, “[n]o person shall knowingly * * * [c]ause or attempt to cause
physical harm to another * * * by means of a deadly weapon or dangerous ordnance.” R.C.
2901.22(B) states that “[a] person acts knowingly, regardless of purpose, when the person is aware
that the person’s conduct will probably cause a certain result or will probably be of a certain nature.
A person has knowledge of circumstances when the person is aware that such circumstances
probably exist. When knowledge of the existence of a particular fact is an element of an offense, 10
such knowledge is established if a person subjectively believes that there is a high probability of
its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.”
{¶26} In support of his manifest weight challenge, Wells argues that the weight of the
evidence does not support the conclusion that he intended to kill W.M. Relying on his own
testimony at trial, Wells argues that he acted out of “blind rage” after being punched in the face.
{¶27} On June 3, 2019, W.M. and his girlfriend, C.B., drove to a convenience store
located at the corner of Princeton Street and West South Street in Akron. W.M. exited their van
and entered the store while C.B. and her four children waited in the vehicle. W.M. was the father
of two of the children. Out of concern that the vehicle was illegally parked, C.B. moved the vehicle
while W.M. was still inside the store. From that vantage point, C.B. saw W.M. exit the store and
begin walking back toward the vehicle. At that point, two men exited a black Chevy Impala that
had pulled up in front of the store. C.B. observed that the driver of the vehicle had a gun. Wells,
who had been riding as a passenger in the Impala, began gesturing angrily toward W.M. Wells
approached W.M. and threw a punch. W.M. threw a counterpunch. At that point, Wells pulled
out a handgun and began shooting at W.M. W.M. attempted to run but he fell to the ground in the
intersection. Wells continued to fire shots at W.M. after W.M. fell to the ground. C.B., who had
watched the incident unfold, testified that the shooter fled the scene in the Impala. C.B. attempted
to give W.M. emergency aid but ultimately his wounds proved to be fatal. A store customer who
was standing at the counter at the time of the shooting gave similar testimony. Upon hearing the
commotion, the customer looked outside the store and saw Wells pull a gun and shoot W.M., who
was attempting to back away. The customer further testified that Wells “just continued to fire and
fire and fire, and then, even once the guy fell, [Wells] still continued to walk over [W.M.] and
shoot.” 11
{¶28} A detective from the Akron Police Department was able to retrieve pole camera
video footage that captured the shooting. The video, which was played at trial, showed that the
events unfolded rapidly. Wells can be seen exiting the Impala and walking toward W.M. In
response, W.M. turned and started walking toward Wells. Although the video does not contain
audio, Wells can be seen swinging and flexing his arms in a downward fashion as the two men
approached each other. When the two men came together, Wells threw the first punch and W.M.
punched back. Wells then opened fire on W.M. and shot him numerous times. The video shows
that W.M. attempted to retreat after Wells pointed the gun at him. On cross-examination, defense
counsel asked the detective if the video suggested that W.M. might have been the aggressor during
the incident. The detective disagreed with that premise and instead testified that, based on Wells’
body language, Wells was the aggressor. Summit County’s Chief Deputy Medical Examiner
testified that W.M. sustained approximately 20 gunshots wounds. The bullets struck W.M. on
numerous portions of his body, including his torso, chest, abdomen, and pelvis, in addition to his
arms and legs.
{¶29} Wells testified in his own defense at trial. Wells testified that he traveled to the
corner store to buy cigarillos and he had no intention of encountering W.M. Wells suggested that
W.M. initiated the confrontation. Although Wells admitted to throwing the first punch, Wells
claimed that he did so in response to W.M.’s aggressive behavior. When asked why he started
shooting, Wells responded, “Because I was mad. I seen blood.” Wells testified that he acted out
of rage when he fired the gunshots and that he never planned or intended to kill W.M. Wells
further testified that he had no recollection of how many times he fired his weapon.
{¶30} A careful review of the record reveals that this is not the exceptional case where the
trier of fact clearly lost its way. The State presented ample evidence that Wells deliberately 12
initiated a confrontation with W.M. and, when W.M. attempted to defend himself, Wells shot
W.M. approximately 20 times. The State presented eyewitness testimony and video evidence that
Wells played the role of the aggressor throughout the course of the incident. Furthermore, the fact
that Wells fired his gun approximately 20 times does not support his assertion that he was merely
reacting to being punched. To the extent that Wells points to his own testimony in support of the
notion that he had no recollection of how many times he fired his weapon, this Court remains
mindful that “the jury is free to believe all, part, or none of the testimony of each witness.” (Internal
quotations and citations omitted.) State v. Darr, 9th Dist. Medina No. 17CA0006-M, 2018-Ohio-
2548, ¶ 32. This Court will not overturn a conviction on a manifest weight challenge only because
the jury found the testimony of certain witnesses to be credible. See State v. Crowe, 9th Dist.
Medina No. 04CA0098-M, 2005-Ohio-4082, ¶ 22. Under these circumstances, Wells has not
demonstrated that his murder convictions resulted in a manifest injustice.
{¶31} Wells’ third assignment of error is overruled.
III.
{¶32} Wells’ assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27. 13
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR FOR THE COURT
STEVENSON, P. J. SUTTON, J. CONCUR.
APPEARANCES:
ALLISON F. HIBBARD, Attorney at Law, for Appellant.
ELLIOT KOLKOVICH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.