2012 Ohio 6046
Ohio Ct. App.2012Background
- Moten was convicted in Greene County, Ohio, of aggravated robbery and kidnapping, with a firearm specification, after a December 11, 2009 Regency Inn robbery.
- Furnas, the night clerk, testified that a gun-wielding man demanded money and Furnas’s watch and forced him into a bathroom; Moten was identified at trial.
- Police connected Moten to the crime via Brady’s testimony as the getaway driver and items recovered from the Harmony Motel and McDufford’s apartment.
- Brady identified Moten’s clothing and a cell phone found at McDufford’s apartment as belonging to Moten, tying him to the robbery.
- Defendant moved to suppress the cell-phone data; the trial court denied the motion; the jury found Moten guilty on aggravated robbery and kidnapping and the court merged the counts for sentencing.
- On appeal, Moten raises five assignments of error challenging suppression, evidentiary rulings, variance with the bill of particulars, sufficiency/weight of the evidence, and ineffective assistance/self-representation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fourth Amendment—cell-phone data admissibility | Moten | Moten | Abandoned phone; no standing; records admissible |
| Hearsay within hearsay—Detective Clay testimony | Moten | Detective’s testimony violated evid.R. 801(C) | Testimony not hearsay within hearsay; documents’ contents connected to location not offered for truth; admissible |
| Variance between bill of particulars and proof | Moten | Variation prejudicial | Not prejudicial; minor variance not material to merits |
| Sufficiency/weight of evidence | Moten | Insufficient evidence/weight | Evidence sufficient; verdict not against weight of the evidence |
| Ineffective assistance/self-representation | Moten | Ineffective counsel; right to self-representation violated | Counsel performance reasonable; no proper self-representation request; no reversible error |
Key Cases Cited
- State v. Smith, 124 Ohio St.3d 163 (Ohio Supreme Court 2009) (cell-phone search framework; warrantless searches depend on necessity and exigency)
- State v. Dennis, 182 Ohio App.3d 674 (Ohio 2d Dist 2009) (standing to object to abandoned property searches)
- State v. Dailey, 2010-Ohio-4816 (3d Dist 2010) (abandonment permits warrantless search of cell data)
- State v. Dawson, 1998 WL 481065 (10th Dist 1998) (non-hearsay use of documents to connect to location (not listed due to WL))
- State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (standard for determining sufficiency of evidence; beyond reasonable doubt)
- State v. Wickline, 50 Ohio St.3d 114 (Ohio 1990) (plain-error variance standard; appellate review of charges vs. proof)
- State v. Brozich, 108 Ohio St. 559 (1923) (variance in identity of stolen property not prejudicial)