[Cite as State v. Degenero, 2016-Ohio-8514.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

TRUMBULL COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, : 

 CASE NO. 2015-T-0104

 - vs - : 

DEVON DEGENERO, : 

 Defendant-Appellant. : 

Criminal Appeal from the Trumbull County Court of Common Pleas. 

Case No. 2015 CR 00176. 

Judgment: Affirmed. 

Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant

Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH

44481-1092 (For Plaintiff-Appellee). 

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For DefendantAppellant). 

TIMOTHY P. CANNON, J. 

{¶1} Appellant, Devon Degenero, appeals the judgment of the Trumbull County 

Court of Common Pleas finding him guilty of robbery, in violation of R.C. 2911.02(A)(3) 

& (B), after a jury trial. Based on the following, we affirm. 

{¶2} It is uncontroverted that appellant visited a Lowe’s Home Improvement 

store where he stole a DeWalt drill kit. At issue is whether appellant used force against 

a Lowe’s employee in committing the theft offense. 
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{¶3} Jacqueline Taylor, Lowe’s head cashier, testified she and appellant 

encountered each other by the exit located near the cash registers. Ms. Taylor stated 

that when she saw appellant carrying two DeWalt drill kits, she believed that he needed 

to check out. Therefore, she began to walk backward toward the register. Instead of 

checking out, however, appellant thrust one of the drill kits into the right side of her face 

and headed for the exit with the other in his hands. She testified: “[H]e shoves the 

combo * * * set towards me and then hits me with the drill. * * * He pushes the one tool 

towards me and then he proceeds to run out and he hits me.” 

{¶4} Appellant ran out of the store followed by Ms. Taylor. Ms. Taylor observed 

appellant jump into an awaiting pick-up truck; she was able to forward the license plate 

number to authorities. The pick-up truck was driven by John Justice, who also testified 

at trial. 

{¶5} As a result of this incident, Ms. Taylor suffered a swollen cheek and 

scratches to her arm. 

{¶6} Mr. Justice testified he was unaware that appellant was going to steal 

anything from Lowe’s. Instead, appellant had indicated he was going to purchase 

drywall screws, therefore Mr. Justice chose to remain in his truck while appellant went 

inside the store. Mr. Justice was waiting in the fire lane when he observed appellant run 

out of the store and jump into his truck. He testified: “He had jumped in the truck and 

somebody was – there was a lady that was behind him * * * saying something. I wasn’t 

sure what she was saying. But he jumped in the truck and I see him reaching 

underneath his shirt and I wasn’t sure what was going on.” Mr. Justice drove away. 
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{¶7} Ms. Taylor was able to identify both appellant and Mr. Justice from a photo 

lineup. Further, the jury viewed the surveillance video depicting the incident, as well as 

a series of photographs taken from the surveillance video. 

{¶8} On July 20, 2015, appellant was found guilty by jury verdict of one count of 

robbery, a third-degree, in violation of R.C. 2911.02(A)(3) and (B). Judgment on the 

verdict was filed on July 23, 2015. 

{¶9} Appellant’s sentencing hearing was held on August 18, 2015, and 

appellant was sentenced to serve a prison term of 24 months. The court also ordered 

that appellant pay restitution of $249.00. The judgment entry of sentence was filed on 

August 25, 2015. 

{¶10} Appellant filed a timely notice of appeal from the August 25, 2015 

judgment, and he asserts two assignments of error on appeal. 

{¶11} Appellant’s first assignment of error alleges: 

{¶12} “The trial court committed reversible error, as a matter of law, by refusing 

to permit appellant to terminate the services of his court appointed attorney and proceed 

pro se.” 

{¶13} The Sixth Amendment to the United States Constitution, as applied to the 

states by the Fourteenth Amendment, provides that defendants shall have the right to 

have the assistance of counsel for their defense. While a defendant has a right to 

counsel, the defendant may also waive that right when the waiver is voluntary, knowing, 

and intelligent. State v. Gibson, 45 Ohio St.2d 366, 377-378 (1976), citing Faretta v. 

California, 422 U.S. 806 (1975). Appellant argues the trial court improperly denied his 

right to self-representation. A defendant’s assertion of the right to proceed pro se must 
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also be clear and unequivocal, and timely. State v. Cassano, 96 Ohio St.3d 94, 2002-

Ohio-3751, ¶38. 

{¶14} In Cassano, the Ohio Supreme Court found the defendant’s request to 

invoke his right to self-representation was untimely because it was made only three 

days prior to trial. Id. at ¶40 (collecting cases). “‘The constitutional right of selfrepresentation is waived if it is not timely and unequivocally asserted.’” Id. at ¶38, 

quoting Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir.1990). This court has 

acknowledged that a trial court may predicate “its decision solely on the timing of 

appellant’s request.” State v. Deir, 11th Dist. Lake No. 2005-L-117, 2006-Ohio-6885, 

¶34. 

{¶15} Here, defense counsel, on the day of the trial, alerted the trial court that 

appellant may wish to proceed pro se. The following exchange occurred: 

THE COURT: Mr. Rouzzo, you indicated your client had some 

concerns? 

MR. ROUZZO: Yes, Your Honor. Mr. Degenero, for a lack of a 

better term, doesn’t believe I’m prepared and/or capable to proceed 

today. I told him I’m ready to go. I’ve worked on the case. He’s 

indicated he may want to fire me. I don’t know if that’s true. I just 

thought that I needed to bring it to the court’s attention that he’s 

indicated that he wants to end this relationship and perhaps 

proceed pro se. 

THE COURT: All right. Mr. Degenero. 

THE DEFENDANT: Yes, Your Honor. 

THE COURT: We are going to trial today. You had the opportunity 

to resolve this case last week. You opted for trial, which is your full 

right. Everyone is here. It’s ready for a trial today. * * * 

THE DEFENDANT: Yes, Your Honor, but at the same time, 

Attorney Rouzzo told me that – I called from the county jail, and he 

told me that there was evidence that would be suppressed in the 
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case and he’s now saying he doesn’t feel like doing it. I just feel 

uncomfortable going forward with him as counsel. I’m not trying to 

be stubborn or – 

THE COURT: Well, you may be uncomfortable. There are certain 

decisions that are made during the course. Now, I’ve looked at this 

case. I didn’t see any suppressible issues. You can always file a 

motion to suppress. It doesn’t necessarily result in anything 

happening from that. Your attorney is a good attorney. He makes 

good judgment calls. He’s made the best judgment calls to this 

stage. * * * 

* * * 

MR. ROUZZO: I indicated to Devon that I may intend to suppress 

some evidence, and I made a strategic call not to do that in this 

case for two reasons. Number one, I didn’t think it benefited us 

and, number two, it would have been an exercise in futility anyway. 

{¶16} Contrary to appellant’s assertion on appeal, appellant never expressed his 

desire to proceed pro se. In fact, it was appellant’s counsel, not appellant, that 

indicated he may wish to proceed pro se. Appellant, when addressed by the trial court, 

never indicated his desire to invoke his right to self-representation. Instead, appellant 

expressed concern regarding his counsel’s failure to file a motion to suppress. 

Furthermore, we note that appellant had another attorney appear on the day of trial on 

his behalf but never requested this attorney represent him. 

{¶17} Although appellant expressed his frustration regarding defense counsel’s 

failure to file such a motion, both his defense counsel and the trial court noted that such 

a motion would have been an exercise in futility. “‘[A] motion made out of * * * 

annoyance or frustration, is not unequivocal – even if the defendant has said he or she 

seeks self-representation.’” State v. Marshall, 4th Dist. Gallia No. 09CA13, 2010-Ohio1958, ¶20, quoting People v. Marshall, 931 P.2d 262, 271 (1997). 
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{¶18} Even if we found appellant invoked his right of self-representation, this 

court must also examine whether it was invoked in a timely manner. The record is 

devoid of any concerns regarding defense counsel until immediately prior to the start of 

trial. The right of self-representation “does not exist * * * to be used as a tactic for delay; 

for disruption; for distortion of the system; or for manipulation of the trial process.” 

United States v. Frazier-El, 204 F.3d 553, 560 (4th Cir.2000) (internal citations omitted). 

Appellant’s failure to assert his right to proceed pro se in a timely manner constitutes a 

separate basis for the trial court’s refusal to allow him to represent himself. See

Cassano, supra, at ¶39-40. See also Tuitt v. Fair, 822 F.2d 166, 169 (1st Cir.1987) 

(upholding denial of request for self-representation where the request was made on the 

day of trial and it was the first time defendant gave his attorney any notice of 

dissatisfaction). 

{¶19} Generally, we review a trial court’s denial of a request for selfrepresentation asserted prior to the commencement of trial de novo; when the right is 

invoked after the commencement of trial we generally review for abuse of discretion. 

Marshall, supra, at ¶19 (citations omitted). The balance in question is primarily the 

accused’s interest in self-representation versus the disruption of proceedings that are 

already in progress. Id. It is unclear which standard of review is employed when, as in 

the present case, the trial court denies a request for self-representation asserted on the 

day of trial but prior to voir dire. State v. Owens, 9th Dist. Summit No. 25389, 2011-

Ohio-2503, ¶18 (citations omitted). This court need not analyze this issue, however, as 

appellant’s assignment of error is based on a claim not supported by the record. 

Appellant never requested to proceed pro se nor did he seek a continuance to allow him 
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to have other counsel represent him. The trial court properly addressed the concern 

raised and proceeded with the scheduled trial. 

{¶20} Appellant’s first assignment of error is without merit. 

{¶21} Appellant’s second assignment of error alleges: 

{¶22} “The appellant’s conviction is against the manifest weight of the evidence.” 

{¶23} To determine whether a verdict is against the manifest weight of the 

evidence, a reviewing court must consider the weight of the evidence, including the 

credibility of the witnesses and all reasonable inferences, to determine whether the trier 

of fact “‘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, 78 Ohio 

St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). 

An appellate court must defer to the factual findings of the trier of fact regarding the 

weight to be given the evidence and credibility of the witnesses. State v. DeHass, 10 

Ohio St.2d 230 (1967), paragraph one of the syllabus. 

{¶24} Appellant acknowledges that his identity as the perpetrator is not an issue. 

He argues the issue is whether he “used or threatened use of force” in committing the 

theft offense. See R.C. 2911.02(A)(3) (“[n]o person, in attempting or committing a theft 

offense or in fleeing immediately after the attempt or offense shall * * * [u]se or threaten 

the immediate use of force against another”). Appellant maintains that while physical 

contact occurred between him and Ms. Taylor, it was, in fact, Ms. Taylor that was 

attempting to block the exit. Appellant argues his actions depicted on the video 

surveillance and the testimony of Ms. Taylor are inconsistent, as the video does not 

depict him using any “force.” 
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{¶25} Ms. Taylor, testified to the following: “And I see him come towards me. He 

pushed his one [drill kit] toward me and hit me with the other.” Ms. Taylor further stated, 

“And then he proceeds towards me. And then he shoves one – the combo set towards 

me and then he hits me with the drill.” Ms. Taylor repeatedly testified that she did not 

step in front of appellant in his attempt to flee the store but, instead, that she was 

backing away from him in an attempt to make her way toward the register. Appellant, 

however, proceeded toward her and struck her with one of the tool sets; she stated that 

she suffered scratches on her left arm and a swollen cheek. 

{¶26} The jury viewed the video surveillance, heard the testimony of Ms. Taylor, 

and viewed photographs that were downloaded from the security surveillance 

equipment, which generally supports Ms. Taylor’s testimony. We are mindful that the 

jury, as the trier of fact, is entitled to believe all, part, or none of a witness’s testimony. 

State v. Williams, 11th Dist. Lake No. 2012-L-078, 2013-Ohio-2040, ¶21 (citation 

omitted). “The trier of fact is in the best position to evaluate inconsistencies in testimony 

by observing the witness’s manner and demeanor on the witness stand—attributes 

impossible to glean through a printed record.” Id.; see also State v. Barnes, 11th Dist. 

Portage No. 2012-P-0133, 2013-Ohio-2836, ¶49 (“we must defer to the weight and 

credibility the jury gave to the evidence in this case”). 

{¶27} We cannot conclude the jury lost its way in returning a guilty verdict. 

{¶28} Appellant’s second assignment of error is without merit. 

{¶29} Based on the opinion of this court, the judgment of the Trumbull County 

Court of Common Pleas is hereby affirmed. 
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THOMAS R. WRIGHT, J., concurs, 

COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion. 

____________________ 

COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion. 

{¶30} I agree with the majority’s well-reasoned opinion in this matter but write 

separately regarding the standard to be employed by appellate courts when a trial court 

denies a request for self-representation on the day of trial, but prior to voir dire. As the 

majority notes we review a trial court’s denial of a request for self-representation 

asserted prior to trial de novo—and when the request is made after the commencement 

of trial we use an abuse of discretion standard. While it is unclear under Ohio law what 

standard of review should be used when a trial court denies a request for selfrepresentation on the day of trial, but prior to voir dire, the federal courts long ago 

weighed in on this issue. 

{¶31} The Ninth, Second, and District of Columbia Circuits have held that “the 

right to self-representation is timely if asserted before the jury is empaneled, at least 

where there is no suggestion that the motion to defend pro se is a tactic to secure 

delay.” Chapman v. United States, 553 F.2d 886, 894 (5th Cir.1977) citing United 

States v. Price, 474 F.2d 1223, 1227 (9th Cir.1973); United States ex rel. Maldonado v. 

Denno, 348 F.2d 12, 16 (2d Cir.1965); United States v. Dougherty, 473 F.2d 1113, 1119 

(1972). The court’s holding in Denno is instructive: 

{¶32} We hold that if (the defendants) clearly sought to represent 

themselves, after their cases had been called on the calendar but before 

the jury had been chosen, they had an unqualified right to have their 
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requests granted. At this stage there was no danger of disrupting 

proceedings already in progress. 

Id. at 16. 

{¶33} In the humble opinion of this writer, if a defendant seeks to represent 

themselves on the morning of trial, before the jury is impaneled, and this request is not 

made for the purposes of delay, appellate courts in Ohio should review a denial by the 

trial court de novo. Without such a bright-line test, the term “prior to trial” (and the 

standard of review to be used) is subject to being interpreted twelve different ways by 

Ohio’s twelve appellate courts, none of which gives trial courts any guidance and allows 

the standard to be applied differently to different defendants. This is contrary to the 

concept that all defendants are to be treated equally under the law.