[Cite as State v. Powell, 2019-Ohio-4398.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

WARREN COUNTY 

STATE OF OHIO, 

 Appellee, 

 - vs - 

NA'SHAY POWELL, 

 Appellant. 

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CASE NO. CA2018-11-130 

O P I N I O N 

10/28/2019 

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS 

Case No. 18CR34353 

David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice 

Drive, Lebanon, Ohio 45036, for appellee 

Kidd & Urling LLC, Thomas W. Kidd, Jr., 8913 Cincinnati-Dayton Road, West Chester, Ohio 

45069, for appellant 

 PIPER, J.

{¶ 1} Appellant, Na'Shay Powell, appeals decisions made by the Warren County 

Court of Common Pleas during her trial on a single count of cocaine possession. 

{¶ 2} After being indicted for cocaine possession, Powell pled not guilty and the 

matter proceeded toward a jury trial. During a pretrial hearing, Powell raised concerns 

regarding her court-appointed attorney and indicated that there were irreconcilable 
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differences between them. The trial court granted counsel's motion to withdraw, and 

appointed Powell a new attorney. 

{¶ 3} During a subsequent pretrial hearing, Powell raised dissatisfaction with her 

second attorney. When questioned, Powell stated that she felt her attorney was not acting in 

her best interest because he was trying to persuade her to plead guilty and move the court 

for intervention in lieu of conviction rather than going to trial. The trial court reminded Powell 

that she was free to retain and pay for counsel of her choosing, but simultaneously 

determined there was no legal basis for dismissing her court-appointed attorney. 

{¶ 4} At a third pretrial hearing, Powell again expressed displeasure with her attorney 

and the trial court offered to replace counsel. The trial court explained that should Powell 

wish to replace counsel a third time, her trial date would be delayed to allow new counsel to 

become familiar with her case and prepare for trial. When Powell expressed hesitation, the 

trial court gave Powell several days to consider her options and scheduled a follow-up 

hearing. During that hearing, Powell again expressed her discontent with her attorney, and 

upon further prompting from the trial court to make a decision regarding replacement of 

appointment counsel, Powell extemporaneously suggested that she would represent herself 

at trial. It was concluded Powell would proceed with trial represented by an attorney. 

{¶ 5} Powell went on to argue with the trial court, suggesting that the judicial system 

was essentially biased against her. Powell threatened a lawsuit against the trial court and 

interrupted the trial court multiple times during the hearing. Eventually, the trial court ordered 

Powell removed from the hearing. 

{¶ 6} During the first day of trial, Powell testified in her own defense. Against advice 

from her attorney, Powell moved the court to allow her to testify again on the second day of 

trial after the defense had rested its case. The trial court allowed Powell to testify, but 

stopped her when Powell began to incriminate herself and speak of matters that would waive 
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her attorney-client privilege. The trial court removed the jury and spoke to Powell regarding 

the dangers of waiving her privilege. Powell then accused the court of engaging in a 

conspiracy against her and did not obey the trial court's order to stay seated and silent. 

During the exchange that followed Powell's accusations, the trial court again warned her to sit 

and listen or the court would remove her from the courtroom given her "disruptive and 

disrespectful" behavior. The jury was then returned to the courtroom. 

{¶ 7} Powell requested that the entire video of her arrest be shown the jury. During 

this time, Powell repeatedly made comments about the video and alleged that the video had 

been tampered with and was inaccurate. Powell failed to adhere to the trial court's numerous 

admonitions about the proper way to testify and how evidence could be admitted. Rather 

than abide by the court's orders, Powell again alleged bias and continued to speak out of 

turn. The trial court then had Powell removed from the courtroom and Powell watched the 

remainder of her trial from a monitor in a nearby room. During the time that Powell watched 

her trial, a rebuttal witness was called, counsel performed closing arguments, and the trial 

court issued jury instructions. After the instructions were given, Powell was permitted to 

return to the courtroom and the jury was then excused for its deliberations. The jury found 

Powell guilty, and the trial court sentenced her to community control with 60 days in jail. 

Powell now appeals, raising the following assignments of error. 

{¶ 8} Assignment of Error No. 1: 

{¶ 9} THE TRIAL COURT VIOLATED HER RIGHT TO SELF-REPRESENTATION 

AND RIGHT TO COUNSEL UNDER THE SIXTH AMENDMENT TO THE UNITED STATES 

CONSTITUTION AND ARTICLE I, SECTION 10, OF THE OHIO CONSTITUTION. 

{¶ 10} Powell argues in her first assignment of error that the trial court erred by 

denying her right of self-representation. 

{¶ 11} According to the Sixth Amendment, a criminal has a right of self-representation 
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and may defend himself or herself without counsel when he or she voluntarily, knowingly, and 

intelligently elects to do so. State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, ¶ 71. 

"The assertion of the right to self-representation must be clear and unequivocal." Id. at ¶ 72. 

A request for self-representation is not unequivocal if it is a "momentary caprice or the result 

of thinking out loud, or the result of frustration." Id. at ¶ 73. Nor is a request unequivocal if it 

is "an emotional response." State v. Steele, 155 Ohio App.3d 659, 2003-Ohio-7103, ¶ 13 

(1st Dist.). See also State v. Frost, 12th Dist. Fayette No. CA2018-11-023, 2019-Ohio-3540. 

{¶ 12} We find that Powell's right to self-representation was not violated because she 

did not unequivocally and explicitly invoke her right. Rather, a review of the entire record 

demonstrates that Powell's reference to self-representation was the result of frustration and 

"thinking out loud." Appellant's comment about representing herself came immediately after 

she expressed her frustrations with defense counsel's strategy, as well as her vigorous belief 

that the court and judicial system were biased against her. When Powell referenced 

representing herself, it was an impromptu reaction to the trial court's insistence that the trial 

was not going to be further delayed for another attorney to be appointed. 

{¶ 13} Further demonstrating Powell's spontaneous frustration were her comments 

that she did not feel "secure" with the judge presiding over her trial, did not feel "secure" with 

the prosecution, or "secure" with her own attorney. Instead, she suggested that her attorney 

and the state were conspiring against her to secure a conviction. Powell also stated her 

desire to stop "this whole shenanigan's" [sic] referring to the criminal process and upcoming 

trial. Powell later expressed her belief that the charge against her was "scandalous" and a 

"fraud," and accused the trial court of "playing on [her] intelligence." 

{¶ 14} Powell's off-the-cuff comments, however, did not equate to an unequivocal 

assertion of her right to self-representation, and there was no actual request to proceed pro 

se, whether orally or by motion. As such, the trial court did not err in continuing with the trial 
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and maintaining appointed counsel for Powell. Powell's first assignment of error is, therefore, 

overruled. 

{¶ 15} Assignment of Error No. 2: 

{¶ 16} THE TRIAL COURT ERRED BY REMOVING MS. POWELL FROM THE 

COURTROOM DURING THE COURSE OF THE TRIAL IN VIOLATION OF HER RIGHTS 

UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION. 

{¶ 17} Powell argues in her second assignment of error that the trial court erred by 

removing her from the courtroom during her trial. 

{¶ 18} Crim.R. 43(B) provides, 

Where a defendant's conduct in the courtroom is so disruptive 

that the hearing or trial cannot reasonably be conducted with the 

defendant's continued physical presence, the hearing or trial may 

proceed in the defendant's absence or by remote 

contemporaneous video, and judgment and sentence may be 

pronounced as if the defendant were present. Where the court 

determines that it may be essential to the preservation of the 

constitutional rights of the defendant, it may take such steps as 

are required for the communication of the courtroom proceedings 

to the defendant. 

{¶ 19} Blatant and deliberate disregard of the basic standards of proper conduct in the 

courtroom should not and cannot be tolerated. State v. Kilgore, 12th Dist. Butler No. 

CA2005-06-172, 2006-Ohio-2139, ¶ 16. Trial judges "confronted with disruptive, 

contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the 

circumstances of each case," including removal of the defendant from the courtroom. Illinois 

v. Allen, 397 U.S. 337, 343-344, 90 S.Ct. 1057 (1970). 

{¶ 20} The record is replete with Powell's unabashed behavior during the court 

proceedings and her brazen disobedience to the trial court's direct orders to cease her 

"outbursts" and allow the trial to continue without her speaking out of turn. The trial court 

continuously cautioned Powell that she was not permitted to comment at will about the 
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testimony and evidence, statements from the prosecution and her own attorney, as well as 

rulings by the judge. At one point, when the trial court responded to one of Powell's 

outbursts by asking her if she wanted to watch the rest of the trial from a different room, 

Powell responded, "this is not fair, but it's all good because the revenge is the Lord's, know 

that, know that." The trial court began to speak, and Powell continued, "you all wouldn’t let 

me expose the truth to the courtroom because you all dirty and scandalous because you all 

frame me[.]" [Sic.] 

{¶ 21} The trial court warned Powell multiple times that she would be removed from 

the courtroom if she could not contain herself and exhibit proper behavior. However, and 

after stating her intent to behave properly, Powell continued to impede her trial by exhibiting 

the disruptive, contumacious, and stubborn behavior warned of in Allen. Finally, the trial 

court recessed the jury and then removed Powell from the courtroom, ordering that she 

watch from a monitor in a nearby room. Based on her own choices, and after receiving 

ample warnings of the consequences of her actions, the court acted properly in removing 

Powell from the courtroom. 

{¶ 22} Powell also alleges that the trial court erred by not allowing her to return to the 

courtroom. While there is no indication in the record that the trial court offered Powell an 

opportunity to return to the courtroom if she was willing to behave, there is also no indication 

Powell would have followed through with such a promise. Numerous times, the trial court 

instructed Powell as to proper courtroom conduct, and numerous times Powell ignored the 

trial court. While the best practice is for trial courts to permit the defendant's return upon a 

promise of adherence to proper courtroom behavior, the advisement of such an opportunity 

is not a constitutional requirement or an enumerated right. 

{¶ 23} Nothing in Crim.R. 43(B) requires a trial court to offer the defendant's return. 

Instead, and as stated by the United States Supreme Court, once lost, the right to be present 
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for trial "can" be reclaimed if the defendant is willing to conduct himself or herself 

"consistently with the decorum and respect inherent in the concept of courts and judicial 

proceedings." Allen at 343. However, the language used in Allen is permissive, not 

mandatory, and the ability of the defendant to return is within the trial court's discretion. State 

v. Dumas, 7th Dist. Mahoning No. 12 MA 31, 2015-Ohio-2683, ¶ 26. 

{¶ 24} Whether a defendant is actually willing to conduct himself or herself properly in 

the courtroom is a determination that only the trial judge can make and is not otherwise 

required by common law, constitution, or statute.1 In the case sub judice, the trial court had 

given Powell countless chances to correct her behavior. Powell never curtailed her behavior, 

nor did she allow the proceedings to continue without innumerable interruptions, outbursts, 

diatribes, and tirades, most of which centered on her unfounded belief of a conspiracy 

against her by the state, court, and her own counsel. 

{¶ 25} Moreover, we find that Powell was not prejudiced by not being given the 

opportunity to return to the courtroom. Immediately prior to Powell being removed from court, 

she incriminated herself on the stand by admitting that she had cocaine in her possession on 

the night she was arrested. Powell spoke to the jury from her "heart" about wanting the jury 

to know the truth of what happened on the night she was arrested, including that she did, in 

fact, possess cocaine. Powell went on to state, "only thing I'm guilty of was really having 

cocaine on my own, but I did put it in my house and the officer went in there, searched 

without a search warrant."2

{¶ 26} By this time, and with Powell in the courtroom, the proverbial damage had been 

 

1. The Sixth District Court of Appeals has noted its belief that a court must provide the defendant the ability to 

return once removed from court. State v. Hernandez, 6th Dist. Lucas No. L-06-1388, 2009-Ohio-386. However, 

our sister court did not provide an analysis to support its contention, and only cited Allen without further 

explanation. 

2. Defense counsel argued during closing arguments that the jury should disregard Powell's testimony because 

when she spoke of having cocaine, it was a different possession than that charged in the indictment. 
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done. The only events occurring after Powell was removed included the calling of one 

rebuttal witness, closing arguments, and the reading of jury instructions. Otherwise, Powell 

had been in the courtroom for the majority of the proceedings and was not prejudiced by 

being absent for a small portion at the end after she had already admitted to possessing 

cocaine. 

{¶ 27} Moreover, the trial court expressly instructed the jury that it was not to consider 

that Powell had been removed from the courtroom for any purpose and that her removal was 

not to impact the jury's "ultimate decision." The trial court further instructed that "you are to 

disregard the fact that she's not present in the courtroom," and asked whether the jury 

understood its instruction. The jury indicated its understanding of the trial court's instruction, 

and there is nothing in the record to indicate that the jury disregarded the instruction during 

its deliberation. See State v. Tyree, 12th Dist. Fayette No. CA2016-09-012, 2017-Ohio-4228 

(a jury is presumed to follow a trial court's instructions). 

{¶ 28} After a thorough review of the record, we find that the trial court showed great 

patience with Powell throughout the proceedings, and was well within its discretion to remove 

her so that the remainder of her trial could occur without further interruption. Therefore, 

Powell's second assignment of error is overruled. 

{¶ 29} Judgment affirmed. 

 RINGLAND, P.J., and S. POWELL, J., concur.