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State v. Moton

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 1, 2018


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-593636-A

          ATTORNEYS FOR APPELLANT Richard Agopian Matthew C. Bangerter Bangerter Law, L.L.C.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Hannah Smith Brian Radigan Assistant County Prosecutors

          BEFORE: Stewart, J., Keough, P.J., and Boyle, J.



         {¶1} The court found defendant-appellant Floyd L. Moton guilty of aggravated murder, murder, felonious assault, and having a weapon while under disability (along with associated firearm specifications) for shooting the victim as the victim sat in his car. The issues on appeal argue that the court violated Moton's right to a public trial by limiting the number of people who could attend trial; that the convictions were not supported by sufficient evidence and were otherwise against the manifest and weight of the evidence; and that the court improperly admitted hearsay evidence. We find no error and affirm.

         I. Evidence

         {¶2} The second, third, and fourth assignments of error raise issues relating to the sufficiency and weight of the evidence.

         A. Sufficiency of the Evidence

         {¶3} In the second and third assignments of error, Moton complains that the state failed to prove the aggravated murder charge contained in Count 1; the felony murder charge in Count 2; the felonious assault charge in Count 3; the weapons while under disability charge in Count 4, and the firearm specifications.

         {¶4} The state charged Moton with aggravated murder under R.C. 2903.01(A). That section states that no person shall purposely, with prior calculation and design, cause the death of another. Moton argues that the state failed to prove that he acted with prior calculation and design because there was no evidence that the shooting was a planned act.

         {¶5} We determine whether a conviction is supported by sufficient evidence by viewing the evidence in a light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

         {¶6} Although there is no bright-line test for what constitutes advanced reasoning to formulate the purpose to kill, courts consider the following three factors: "(1) Did the accused and victim know each other, and if so, was that relationship strained? (2) Did the accused give thought or preparation to choosing the murder weapon or murder site? and (3) Was the act drawn out or 'an almost instantaneous eruption of events?'" State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 20, quoting State v. Taylor, 78 Ohio St.3d 15, 19, 676 N.E.2d 82 (1997), quoting State v. Jenkins, 48 Ohio App.2d 99, 102, 355 N.E.2d 825 (8th Dist.1976).

         {¶7} Police responding to a call of a shooting found the victim in a parked car that was running with its headlights on. The victim had been shot twice in the head from no more than 18 inches away. He was holding a cell phone. The victim's cell phone contained contact information for a person named "Floyd." On the day the murder occurred, the victim called Floyd's phone five times; two of those were missed calls occurring at 6:25 p.m. and 6:29 p.m. At around 6:40 p.m., witnesses saw vehicles belonging to both Moton and the victim in the parking lot. One witness testified that she heard shouting and then saw a man open the victim's car. She watched the man's hands recoil and then heard gunshots.

         {¶8} Witnesses said that the shooter drove a truck or pickup truck. Surveillance video taken from the time of the shooting enabled the police to identify the make and model of the truck. Bureau of Motor Vehicles records showed that Moton had very recently registered a truck matching the description of the vehicle used by the shooter. The police recovered Moton's DNA from the door handle of the victim's car. Surveillance cameras captured the truck circling the area just prior to when the murder occurred. The truck could not be located after the murder.

         {¶9} An examination of the victim's cell phone showed that he received telephone calls from a person named "Floyd." The calls were made with a cell phone using a prepaid data plan that could not be traced to the owner. The police were, however, able to obtain a log of the calls made from the "Floyd" phone and determined that seven calls were made from that phone to the victim's phone. After the murder, no more calls were made from the "Floyd" phone nor could the phone be recovered.

         {¶10} For purposes of the prior calculation and design test, it appears that Moton and the victim knew each other as evidenced by the phone records. In addition, the records of phone calls made just prior to the murder create the inference that Moton planned to meet the victim; indeed, surveillance footage showed that he drove around the area where the murder occurred as though waiting for the victim to arrive. The court could find that Moton contemplated the use of force by bringing a firearm to the meeting.

         {¶11} It was unclear whether the murder was drawn out or an instantaneous eruption of events: the witnesses only heard shouting and saw the shooting, so there was no additional context. Nevertheless, in Walker, the Supreme Court stated that "[s]hooting a person execution-style may also establish, at least in part, prior calculation and design." Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, at ¶ 21. When announcing its verdict, the court stated, "for a finder of fact I think [the murder] can only be seen as one thing. It was an execution. It was clear to me that there was prior calculation and design." This was a rational conclusion given that Moton knew the victim, used an untraceable cell phone when calling the victim, appeared to preplan a meeting with the victim, was armed when he met the victim in the parking lot, and then shot the victim execution-style from only inches away. The shooting occurred so quickly that the victim did not even appear to have time to defend himself. These facts gave rise to the inference that Moton executed the victim, thus establishing that he acted with prior calculation and design. And the same facts also prove that he possessed an operable firearm.

         {¶12} Having found the conviction for aggravated murder to be supported by legally sufficient evidence, we need not consider Moton's arguments in his third assignment of error that the murder and felonious assault counts were also unsupported by legally sufficient evidence. The court determined that the murder and felonious assault counts were allied offense of similar import under R.C. 2941.25(A). The state elected to have Moton sentenced on the aggravated murder count; the murder and felonious assault counts were merged for sentencing. Error, if any, with respect to the sufficiency of the evidence supporting the finding of guilt for murder and felonious assault would be harmless. State v. Powell, 49 Ohio St.3d 255, 263, 552 N.E.2d 191 (1990) (even if evidence of one count was insufficient to support the conviction, the fact that the count merged with another that was supported by sufficient evidence means any error was harmless beyond a reasonable doubt); State v. Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 14-15; State v. Franks, 8th Dist. Cuyahoga No. 103682, 2016-Ohio-5241, ¶ 18.

         {¶13} We summarily reject Moton's argument that there was insufficient evidence to prove that he possessed a weapon while under disability in violation of R.C. 2923.13(A)(3). That offense prohibits a person from using or carrying a firearm if, among other things, the person has been convicted of trafficking in any drug of abuse. Moton stipulated to a prior conviction for drug trafficking, and the evidence supporting the aggravated murder count proved that he possessed a weapon. State v. Knowles, 10th Dist. Franklin No. 16AP-345, 2016-Ohio-8540, ¶ 30.

         B. Manifest Weight of Evidence

         {¶14} In the fourth assignment of error, Moton complains that the court's verdict is against the manifest weight of the evidence. He argues that no witness identified him as the shooter, that the witnesses gave conflicting testimony when describing the truck used by the shooter, and that he could not be linked to the murder weapon.

         {¶15} The manifest weight of the evidence standard requires the reviewing court to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine 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, 515 N.E.2d 1009 (9th Dist.1986). This is a difficult burden for an appellant to overcome because the trier of fact has the sole responsibility to resolve factual issues. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Because the standard of review uses the word "manifest, " it means that we can only reverse the trier of fact if its decision is very plainly or obviously contrary to the evidence.

         {¶16} When issuing its verdict, the court said, "I will say this: I don't know that I've ever had a case with such consistent witness testimony. The witnesses were very consistent." Indeed, the case came together rather easily for the state. With evidence that Moton's truck and cell phone appeared to disappear following the murder, the court could infer that Moton bought and used them specifically to facilitate the murder. Not only was Moton in communication with the victim just prior to the murder, he was placed at the scene of the crime because his DNA was found on the victim's car. Moton argued that his DNA likely found its way on the door handle because he worked at a car wash where the victim's car had been cleaned. The court rejected this theory, noting that Moton offered no proof that he actually worked at the car wash. In addition, the court thought it unlikely that Moton's fingerprints would have survived the car wash itself (as argued by Moton), and noted that Moton contradicted his own argument by claiming at trial that rain occurring near the time of the shooting would have compromised the DNA evidence found on the door handle. In any event, the DNA evidence was compelling: a forensic analyst testified and described the DNA match as "beautiful."

         {¶17} It is true that witnesses gave varying descriptions of the vehicle used by the shooter. The state's case, however, did not depend on descriptions of the truck itself. The DNA evidence placed Moton at the scene of the crime. Phone records showed that the victim had been in contact with a person called "Floyd" shortly before the murder. Records from the Bureau of Motor Vehicles confirmed that Moton had very recently registered a truck that matched a description given by one witness to the shooting, surveillance footage showed that same type of truck had been seen circling the area shortly before the murder occurred. This evidence made discrepancies in witness descriptions of the vehicle largely immaterial. The court did not lose its way by finding Moton guilty of aggravated murder.

         II. Public Trial

         {¶18} During the cross-examination of the second state witness, the court stopped testimony to ask a spectator "what case are you here for?" When the spectator told the court it was for the "Moton case, " the court told the spectator to "step out." The court then identified a man and woman in the courtroom and likewise asked them what they were there for - they, too, replied, "the Moton case." The court said, "I asked the State to limit it to three people and there's no in and out when I'm in session. Please step outside. I would appreciate it if you tell these people that I am going to keep doing this, and if I have to keep doing it, there's going to be a problem." Moton complains that the court's actions violated his right to a public trial.

         {¶19} "The right to a public trial is guaranteed by the Sixth Amendment to the United States Constitution and by Section 10, Article I of the Ohio Constitution." State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 81. And the violation of the right to a public trial is structural error that "is not subjected to harmless-error analysis." Id. Because the right is structural, "it cannot be waived by the defendant's silence." Id.

         {¶20} The right to a public trial is not absolute and can yield to other interests, such as the court exerting "authority to exercise control over the proceedings and the discretion to impose control over the proceedings." State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 51. As part of its authority to exercise control over "all proceedings in a criminal trial, " R.C. 2945.03, the court has "discretion to order the exclusion of spectators" so long as "it does not inappropriately deny the defendant's right to a public trial." State v. Morris, 157 Ohio App.3d 395, 2004-Ohio-2870, 811 N.E.2d 577, ¶ 13 (1st Dist). See also State v. Sowell, 10th Dist. Franklin No. 06AP-443, 2008-Ohio-3285, ¶ 34.

         {¶21} The trial transcript shows that the movement of certain spectators in the courtroom had become disruptive to the trial judge: "I asked the State to limit it to three people and there's no in and out when I'm in session." The movement of people in and out of the courtroom was a legitimate concern. The trial judge may not have known if the people entering the courtroom were witnesses who could be subject to a separation of witnesses. This case was tried to the court, so the constant monitoring of people entering the courtroom in the middle of witness testimony would have been particularly distracting. It was likely for this reason that the trial judge told the state that "I would appreciate it if you tell these people that I am going to keep doing this, and if I have to keep doing it, there's going to be a problem." This comment indicated that the trial judge was not excluding the public from the courtroom, but only asking these persons to refrain from entering and exiting the courtroom so that the trial judge could maintain control over the courtroom. This was a reasonable course of action and well within the trial judge's discretion: "the right to a public trial is not absolute and an order barring spectators from observing a portion of an otherwise public trial does not ...

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