State v. Moton, 104470
| Decision Date | 01 March 2018 |
| Docket Number | No. 104470,104470 |
| Citation | 107 N.E.3d 203,2018 Ohio 737 |
| Parties | STATE of Ohio, Plaintiff–Appellee v. Floyd L. MOTON, Defendant–Appellant |
| Court | Ohio Court of Appeals |
Richard Agopian, 7466 Huntz Drive, Cheyenne, WY 82009, Matthew C. Bangerter, Bangerter Law, L.L.C., P.O. Box 148, Mentor, OH 44061, ATTORNEYS FOR APPELLANT.
Michael C. O'Malley, Cuyahoga County Prosecutor, Hannah Smith, Brian Radigan, Assistant County Prosecutors, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, OH 44113, ATTORNEYS FOR APPELLEE.
BEFORE: Stewart, J., Keough, P.J., and Boyle, J.
JOURNAL ENTRY AND OPINION
{¶ 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.
{¶ 2} The second, third, and fourth assignments of error raise issues relating to the sufficiency and weight 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: 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, 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) (); State v. Ramos , 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, 2016 WL 6835557, ¶ 14–15 ; State v. Franks , 8th Dist. Cuyahoga No. 103682, 2016-Ohio-5241, 2016 WL 4141510, ¶ 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, 2016 WL 7493652, ¶ 30.
{¶ 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, 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...
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