State v. Moten , 2021 Ohio 233 ( 2021 )

[Cite as State v. Moten, 2021-Ohio-233.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
:
STATE OF OHIO :
: Appellate Case Nos. 2020-CA-5 &
Plaintiff-Appellee : 2020-CA-23
:
v. : Trial Court Case No. 2009-CR-818
:
LAWRENCE MOTEN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
...........
OPINION
Rendered on the 28th day of January, 2021.
...........
MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Greene County Prosecutor’s Office,
Appellate Division, 61 Greene Street, Suite 200, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
LAWRENCE MOTEN, #A610-524, 1001 Olivesburg Road, P.O. Box 8107, Mansfield,
Ohio 44901
Defendant-Appellant, Pro Se
.............
FROELICH, J.
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{¶ 1} Lawrence Moten, pro se, appeals from two judgments of the Greene County
Court of Common Pleas related to his post-conviction requests for a new trial and for DNA
testing of the gun involved in his conviction for aggravated robbery with a firearm
specification. For the following reasons, the trial court’s judgments will be affirmed.
I. Procedural History
{¶ 2} The facts underlying Moten’s conviction were detailed in his direct appeal,
State v. Moten, 2d Dist. Greene No. 2011-CA-37, 2012-Ohio-6046. To summarize, in
the early morning hours of December 11, 2009, Clayton Brady drove Moten to the
Regency Inn Motel, where Moten pointed a gun at the night desk clerk and demanded
money, which the clerk gave him. Moten then forced the clerk into a bathroom and tied
his hands together. Brady, who had left Moten at the motel after seeing a police cruiser,
was stopped by the police before he could return for Moten; the police located a Colt 380
handgun in Brady’s vehicle.
{¶ 3} Soon after the motel robbery, Eli McDufford, who lived near the motel, called
the police and reported that someone had broken into his apartment with a handgun.
McDufford had fought the man and disarmed him. McDufford gave the handgun (a
Stallard Arms Model JS 9mm pistol) and the perpetrator’s cell phone, which were left at
the apartment, to the police. After additional investigation, the police arrested Moten for
both incidents.
{¶ 4} At a subsequent jury trial, the jury found Moten guilty of aggravated robbery,
kidnapping, and accompanying firearm specifications related to the motel robbery. The
trial court dismissed the aggravated burglary charge, pursuant to Crim.R. 29, at the close
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of the State’s case. In doing so, the trial court found that, while there was evidence that
the cell phone recovered from McDufford’s apartment belonged to Moten, there was no
evidence that Moten had the phone on his person when McDufford struggled with the
burglar. The court further stated that evidence of Moten’s proximity to McDufford’s
apartment was insufficient to prove his presence in the apartment.1 Finally, the court
noted that the grand jury transcript reflected that Moten allegedly committed the burglary
with the purpose of obstructing official business. (The bill of particulars stated that Moten
tried to force his way into the apartment, telling the victim that he needed a place to hide.)
The trial court concluded that Moten could not have committed the offense of obstructing
official business in this manner, as a matter of law.
{¶ 5} The court subsequently merged the aggravated robbery and kidnapping
offenses and imposed 10 years for aggravated robbery, plus an additional three years for
the firearm specification; Moten also was ordered to pay restitution. The judgment entry
included a provision that the firearm was to be forfeited to the Xenia Police Department
to be disposed of by the agency according to law. We affirmed Moten’s conviction on
direct appeal. Moten, 2d Dist. Greene No. 2011-CA-37, 2012-Ohio-6046.
{¶ 6} Before and after his conviction, Moten filed motions relating to grand jury
transcripts. In December 2010, before trial, the trial court granted Moten’s motion for an
in-camera inspection of grand jury transcripts. After conducting this review, the trial court
denied Moten’s request for those transcripts. The trial court again rejected Moten’s
1 In the subsequent discussion about whether the prosecutor could discuss the cell phone
and firearm during closing argument, the prosecutor noted that Brady had identified the
gun found in McDufford’s apartment as belonging to Moten. The court commented that
it “had forgotten that Mr. Brady had identified that.” (Trial Tr. 526.) The State did not
ask the court to reconsider its Crim.R. 29 ruling in light of that additional fact.
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request for grand jury transcripts in 2013, after Moten’s conviction.
{¶ 7} On October 18, 2019, Moten filed an application for DNA testing of the
firearm, XPD Property Tag No. 49959 (the Stallard Arms firearm). Moten argued that
the State had claimed that the firearm recovered from McDufford’s apartment was the
same gun used to commit the aggravated robbery of the motel, and that DNA testing
could establish a different perpetrator. Moten attached numerous exhibits to his motion.
We highlight the following documents:
 June 9, 2010 letter from BCI to Detective Holly Clay. The letter states that,
during examination of the gun from the aggravated burglary (Stallard Arms 9mm
pistol), “samples were collected for possible future DNA analysis. These
samples have been sub-exhibited and will be returned to your agency with the
other evidence. Should DNA analysis be necessary, please re-submit the sub-
exhibited samples, as well as reference standards * * *.” The letter further stated
the opinion that the DNA analysis procedure would likely consume the entire DNA
sample.
 Search warrant for DNA sample from Moten
 Moten’s July 18, 2010 motion for DNA expert and for order restraining the State
from testing DNA samples until an expert can be retained
 August 2, 2010 letter from prosecutor to defense counsel. The letter informed
defense counsel that, according to BCI, an outside expert would not be permitted
to observe the DNA testing procedures.
 Defense motion for DNA testing to be performed by Miami Valley Regional Crime
Lab
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 Hearing transcript in which trial court granted Moten’s motion for a DNA expert
and the parties agreed to check with MVRCL about allowing an expert to observe
the DNA testing
 March 17, 2014 request by Moten for an inventory of biological evidence and to
retain such evidence
 May 19, 2014 letter from The Ohio Innocence Project to the Xenia Police
Department, requesting an inventory of any biological evidence that had been
retained.
 July 22, 2014 response by the prosecutor to The Ohio Innocence Project’s
inventory request. The response listed the evidence that had been retained,
including a firearm (Property Tag No. 49959).
{¶ 8} The trial court ordered the prosecutor’s office to prepare a report outlined in
R.C. 2953.75(A).
{¶ 9} On December 26, 2019, Moten filed another motion for grand jury transcripts.
Moten indicated that he was seeking grand jury materials related to the firearm and cell
phone recovered in the aggravated burglary and the legal instructions provided to the
grand jury regarding aggravated burglary. Moten asserted that the indictment was based
on false information and obtained in bad faith. In his motion, Moten also requested a
new trial on Counts One and Two (aggravated robbery and kidnapping) without the
physical evidence related to Count Three, the aggravated burglary.
{¶ 10} On January 16, 2020, the trial court overruled Moten’s motion for grand jury
transcripts and a new trial. The court denied the request for grand jury transcripts on the
grounds that “this case is closed and appeals are complete,” the trial court “has no current
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jurisdiction in this case,” and Moten had not demonstrated a particularized need for the
transcripts. With respect to the motion for a new trial, the trial court noted that the motion
was not based on newly discovered evidence, the basis for the motion was unclear, and
the motion was untimely. Moten appeals the trial court’s ruling. (Greene App. No.
2020-CA-5.)
{¶ 11} On January 30, 2020, Moten filed a motion in the trial court for the
preparation of the transcript of proceedings to support his appeal. Moten listed 21 items
that he believed should be included in the record on appeal, as well as the firearm
(Property Tag No. 49959) and the cell phone. The State opposed the motion to the
extent that Moten again sought to obtain grand jury testimony and asked for copies of the
record to be sent to him directly. Moten subsequently filed a reply memorandum, arguing
that his pending motion for DNA testing was a pending matter for which the grand jury
testimony was relevant. He also raised a claim of retroactive misjoinder. The court later
denied this motion.
{¶ 12} On February 28, 2020, Moten filed a motion in the trial court for correction
or modification of the record, pursuant to App.R. 9(E). He asked for a transcript of grand
jury voir dire testimony related to the aggravated burglary to be prepared and for a
dismissal entry. The State responded that any information related to the aggravated
burglary was moot, as that count was dismissed and that the grand jury voir dire was not
subject to disclosure under the facts before it.
{¶ 13} We remanded the matter to the trial court so that it could address the motion
to correct the record.
{¶ 14} On March 11, 2020, the State filed its inventory report, pursuant to R.C.
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2953.75(A). The report indicated that “the firearm, property tag no. 49959, was disposed
of pursuant to Xenia Police Department Guidelines on January 14, 2011 and is therefore
not available for DNA testing.” The report attached, as Exhibit A, a list by the Xenia
Police Department of evidence that it purportedly still possessed.
{¶ 15} On April 20, 2020, the trial court overruled Moten’s motion to correct the
record and his application for post-conviction DNA testing. In denying the motion to
correct the record, the trial court noted that Moten was required to raise any objections to
the indictment prior to trial, and he had waived his objections pursuant to Crim.R. 12(H).
The court further found that Moten’s desired discovery into the instructions received by
the grand jury as to Count Three (aggravated burglary) was moot because that count had
been dismissed. Finally, the court noted that Moten had appealed his conviction and his
conviction had been affirmed on direct appeal. The court concluded that the doctrine of
res judicata barred Moten from raising an alleged trial error in a subsequent appeal.
{¶ 16} In denying the application for post-conviction DNA testing, the trial court
reviewed the evidence at trial related to the aggravated robbery and kidnapping. The
court concluded that DNA testing of the gun would not produce an exclusion result, as
defined by R.C. 2953.71(G). The court explained:
* * * The firearm was recovered [from] McDufford’s apartment, not the
Regency Inn Motel. As noted above, the comparison sought must be
between Moten’s DNA [and] that of material recovered from the victim or
the crime scene. Even assuming that Moten’s request could meet the
definition of “exclusion result” the Court finds that DNA testing of the firearm
would not be outcome determinative in this case. Moten was identified as
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the perpetrator of the robbery and kidnapping by both his co-conspirator,
Clayton Brady[,] and the victim of the offense, [the motel clerk]. Assuming,
arguendo, that a DNA profile belonging to someone other than Moten was
on the firearm, that would merely prove that someone else touched the
firearm at some point which is not, in and of itself, outcome determinative in
this case. * * *
{¶ 17} Moten also appeals from the trial court’s April 20, 2020 rulings. (Greene
App. No. 2020-CA-23.) His notice of appeal did not specify the ruling to which his notice
applied. However, the criminal docketing statement identified the probable issues for
review to be whether the trial court erred in allowing the State to use evidence related to
the aggravated burglary at trial, a matter raised in his motion for a new trial, and the court’s
denial of his post-conviction request for DNA testing. Moten has not raised any issues
on appeal related to the grand jury transcripts.
{¶ 18} We have consolidated Moten’s appeals.
{¶ 19} Moten raises two issues on appeal. (His appellate brief provides
propositions of law, rather than assignments of error, as required by App.R. 16(A)(3).)
First, he claims that the Xenia Police Department violated R.C. 2933.82 and his right to
due process when it destroyed the firearm, Property Tag No. 49959. Second, he claims
that “retroactive misjoinder” occurred and the trial court erred in failing to give a curative
instruction after granting Moten’s Crim.R. 29 motion on the aggravated burglary. We will
address these claims in reverse order.
II. Attachments to Moten’s Appellate Brief
{¶ 20} As an initial matter, the State raises that Moten attached several documents
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to his appellate brief. The State requests that we strike those attachments on the ground
that they violate App.R. 16 and 19. The documents attached to Moten’s appellate brief
are copies of some of the documents that he attached to his October 18, 2019 motion for
DNA testing of the firearm and documents otherwise in the record. Although Moten
preferably should have referenced the documents in his brief rather than attached them,
we decline to strike them.
III. Retroactive Misjoinder
{¶ 21} Moten claims that he is entitled to a new trial due to retroactive misjoinder.
{¶ 22} Crim.R. 33 governs motions for new trial and sets forth the following six
grounds for securing a new trial: (1) irregularity in the proceedings that deprived the
defendant of a fair trial; (2) misconduct of the jury, prosecutor, or a state’s witness; (3)
accident or surprise that ordinary prudence would not have guarded against; (4) the
verdict was not sustained by sufficient evidence; (5) legal error during trial; or (6) new
evidence material to the defense has been discovered that could not have been
discovered with reasonable diligence in time for trial. Crim.R. 33(A); State v. Chinn, 2d
Dist. Montgomery No. 28345, 2020-Ohio-43, ¶ 11. Moten did not identify the ground
upon which he relied.
{¶ 23} We review a trial court’s denial of a Crim.R. 33 motion for a new trial for an
abuse of discretion. State v. Warren, 2017-Ohio-853, 86 N.E.3d 728, ¶ 44 (2d Dist.). The
term “abuse of discretion” implies that the court’s attitude is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
{¶ 24} Crim.R. 8 describes when multiple offenses may be charged together. It
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provides that “[t]wo or more offenses may be charged in the same indictment, information
or complaint in a separate count for each offense if the offenses charged, whether felonies
or misdemeanors or both, are of the same or similar character, or are based on the same
act or transaction, or are based on two or more acts or transactions connected together
or constituting parts of a common scheme or plan, or are part of a course of criminal
conduct.”
{¶ 25} “The law favors joinder to prevent successive trials, to minimize the
possibility of incongruous results in successive trials before different juries, to conserve
judicial resources, and to diminish the inconvenience to witnesses.” State v. Broadnax,
2d Dist. Montgomery No. 21844, 2007-Ohio-6584, ¶ 33, citing State v. Schaim, 65 Ohio
St.3d 51, 58, 600 N.E.2d 661 (1992) and State v. Torres, 66 Ohio St.2d 340, 343, 421
N.E.2d 1288 (1981).
{¶ 26} Even when charges are properly joined in a single indictment, Crim.R. 14
requires separate trials when the joinder of counts or defendants results in prejudice.
State v. McComb, 2017-Ohio-4010, 91 N.E.3d 255, ¶ 48 (2d Dist.); Broadnax at ¶ 48.
Specifically, Crim.R. 14 states, in part: “If it appears that a defendant or the state is
prejudiced by a joinder of offenses or of defendants in an indictment, information, or
complaint, or by such joinder for trial together of indictments, informations or complaints,
the court shall order an election or separate trial of counts, grant a severance of
defendants, or provide such other relief as justice requires.”
{¶ 27} Crim.R. 12(C)(5) requires a motion for severance to be filed before trial. If
a motion for severance is not renewed at the close of the State’s case or at the conclusion
of the evidence, a defendant forfeits his ability to raise the issue on appeal and we review
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the matter only for plain error. E.g., McComb at ¶ 51, citing State v. Stargell, 2016-Ohio-
5653, 70 N.E.3d 1126, ¶ 12 (2d Dist.); State v. Bates, 2d Dist. Clark No. 2005-CA-83,
2006-Ohio-4146, ¶ 33.
{¶ 28} Retroactive misjoinder, also called spillover prejudice, “refers to
circumstances in which the ‘joinder of multiple counts was proper initially, but later
developments -- such as a district court’s dismissal of some counts for lack of evidence
or an appellate court’s reversal of less than all convictions -- render the initial joinder
improper.’ ” United States v. Hamilton, 334 F.3d 170, 181 (2d Cir.2003), quoting United
States v. Jones, 16 F.3d 487, 493 (2d Cir.1994). In analyzing a claim that prejudicial
spillover warrants a new trial, some courts consider “(1) whether the evidence introduced
in support of the vacated count was of such an inflammatory nature that it would have
tended to incite or arouse the jury into convicting the defendant on the remaining counts,
(2) whether the dismissed count and the remaining counts were similar, and (3) whether
the government’s evidence on the remaining counts was weak or strong.” State v. Love,
1st Dist. Hamilton No. C-050131, 2006-Ohio-6158, ¶ 68, quoting Hamilton at 182.
{¶ 29} In the Second Circuit, a claim of retroactive misjoinder requires a showing
of “compelling prejudice.” Jones at 493. The Sixth Circuit has held that claims of
prejudicial misjoinder require a showing of “compelling prejudice” or that the prosecutor
acted in bad faith. United States v. Deitz, 577 F.3d 672, 692-693 (6th Cir.2009).
{¶ 30} In Jones, the defendant was found guilty after a second jury trial on charges
of bank robbery, armed bank robbery, using a firearm in a crime of violence, and
possessing a firearm as a convicted felon. The firearm possession charge was added
after the first jury failed to reach on verdict on the other three charges. The addition of
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the firearm possession charge resulted in the government’s presentation of evidence that
Jones was a convicted felon. Prior to the second trial, Jones had sought severance of
the firearm possession charge, but the trial court denied the motion.
{¶ 31} On appeal, the appellate court reversed Jones’s conviction for possessing
a firearm as a convicted felon on sufficiency grounds. Jones argued on appeal that his
convictions on the other counts should also be reversed, because they were tainted by
“retroactive misjoinder.” Jones asserted that the “spillover effect” of the evidence
regarding his criminal record, which was presented for the possessing a firearm as a
convicted felon charge, substantially prejudiced him.
{¶ 32} The Second Circuit agreed. The appellate court found that Jones suffered
prejudice from the admission of his criminal record and there was “an overwhelming
probability” that the jurors did not adhere to the court’s limiting instructions regarding the
use of that evidence. Id. at 493. The court thus held that, having vacated the firearm
possession count, Jones was entitled to a new trial on the other counts “because, in
retrospect, the jury should never have heard evidence on the vacated count.” Id. The
Second Circuit summarized: “In short, the evidence that Jones is a felon was of the
inflammatory sort that may have swayed the jury to convict him of the other charges even
if the evidence had not supported those charges.” Id.
{¶ 33} In this case, the State submits that we do not need to address Moten’s
retroactive misjoinder argument, because no Ohio court has recognized a claim of
retroactive misjoinder. See Love, 1st Dist. Hamilton No. C-050131, 2006-Ohio-6158, at
¶ 68 (“Here, we note that no Ohio court has recognized retroactive misjoinder and we
decline to do so now.”). Moten has not directed us to any Ohio cases on retroactive
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misjoinder. Nevertheless, assuming, for sake of argument, that a viable claim of
retroactive misjoinder exists in Ohio, the record does not establish that Moten is entitled
to a new trial based on prejudicial misjoinder, or spillover prejudice.
{¶ 34} First, we note that Moten filed a motion to sever the trial on Count Three
(aggravated burglary) prior to trial. Unlike in Jones, where the possession of a firearm
as a convicted felon charge was reversed on appeal, Moten’s aggravated burglary charge
was dismissed by the trial court on a Crim.R. 29 motion. Accordingly, Moten had an
opportunity to raise misjoinder at trial or to request a limiting instruction about the State’s
evidence on the aggravated burglary charge. Moten filed a motion for a new trial on
June 14, 2011, shortly after his conviction, and he raised the trial court’s failure to sever
Count Three, among other claims. Moten did not appeal the denial of that motion.
Moreover, Moten had an opportunity raise retroactive misjoinder on direct appeal, but did
not. Accordingly, Moten’s argument is barred by res judicata.
{¶ 35} Second, even if we were to consider the merits of Moten’s argument, the
record does not support his claim that he suffered “compelling prejudice” from the joinder
of the aggravated burglary charge with the aggravated robbery and kidnapping charges.
It is not enough to show that one of the charged offenses was dismissed or reversed due
to insufficient evidence. To hold otherwise would require a new trial in virtually every
case where any part of a conviction was reversed on sufficiency of the evidence grounds.
See Howard v. Wilson, N.D.Ohio No. 1:07-CV-3240, 2008 WL 4837563, *5 (Oct. 8, 2008).
{¶ 36} Here, the State presented evidence of two events that occurred in different
locations on the same night. The conduct underlying the aggravated robbery and
kidnapping at the motel were distinct from the conduct underlying to the incident at
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McDufford’s apartment. We find no basis to conclude that the jury could not adequately
separate the charges. In addition, the evidence regarding the aggravated burglary was
not inflammatory such that it created a likelihood that the jury convicted Moten based on
inflammatory evidence related to the aggravated burglary.
{¶ 37} Moreover, even without the charge of aggravated burglary, the State could
have properly presented evidence that the gun used in the commission of the aggravated
robbery was located in McDufford’s apartment, along with Moten’s cell phone.
McDufford’s apartment was approximately a block away from the Regency Inn Motel, and
Brady identified the gun collected from McDufford’s apartment as the gun that Moten had
when Brady dropped him off before the robbery. We cannot conclude that the State’s
use of evidence from the aggravated burglary, particularly the firearm, was inappropriate
even after the trial court’s grant of Moten’s Crim.R. 29 motion on the aggravated burglary.
In addition, based on the evidence presented at trial, we cannot conclude that the State’s
joinder of the aggravated burglary charge in the indictment was unreasonable or based
on bad faith.
{¶ 38} The trial court did not abuse its discretion in denying Moten’s motion for a
new trial.
IV. DNA Testing of the Firearm
{¶ 39} On appeal, Moten does not specifically argue that the trial court erred in
denying his application for post-conviction DNA testing. Rather, he focuses on the
State’s report that the Stallard Arms firearm was destroyed in 2011, and he claims that
the State violated Ohio law and his constitutional rights by destroying that firearm. We
will address Moten’s arguments in the context of a review of the trial court’s denial of his
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application for post-conviction DNA testing of the firearm.
{¶ 40} If an eligible offender submits an application for DNA testing under R.C.
2953.73, the trial court must require the prosecuting attorney to use “reasonable
diligence” to determine (1) whether biological material was collected from the crime scene
or victim against which a sample from the offender may be compared and (2) whether the
parent sample of that biological material still exists. R.C. 2953.75(A); State v. Bonnell,
155 Ohio St.3d 176, 2018-Ohio-4069, 119 N.E.3d 1285, ¶ 18. In using reasonable
diligence to make those determinations, the prosecuting attorney must rely on “all relevant
sources,” including but not limited to (1) all prosecuting authorities involved in the case,
(2) all law enforcement involved in the investigation, (3) all custodial agencies involved at
any time with the biological material, (4) the custodians of the custodial agencies, (5) all
crime laboratories involved at any time with the biological material, and (6) all other
“reasonable sources.” Id. The prosecuting attorney must prepare and file a report
containing the required determinations. R.C. 2953.75(B).
{¶ 41} A court may accept an R.C. 2953.73 application for DNA testing only if it
determines that all six of the conditions in R.C. 2953.74(C) apply. The conditions
include: (1) biological material was collected from “the crime scene or the victim” and that
the parent sample still exists, (2) there is sufficient parent material to extract a test sample,
(3) the identity of the perpetrator was at issue at trial, (4) one or more of the defense
theories asserted by the offender at the trial stage was of such a nature that, if DNA
testing were conducted and an exclusion result were obtained, the exclusion result would
be outcome determinative, (5) “if DNA testing is conducted and an exclusion result is
obtained, the exclusion result would be outcome determinative regarding that offender,”
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and (6) the parent sample and the extracted test sample are the same sample as collected
and that there is no reason to believe that they have been out of state custody or have
been tampered with or contaminated since they were collected. R.C. 2953.74(C).
{¶ 42} Moten focuses on the State’s apparent destruction of the firearm located at
McDufford’s apartment, which contained the alleged parent DNA sample. In this case,
the relevant sequence of events relative to that firearm appears to be:
Date Event
The Stallard Arms firearm was sent to BCI, which extracted
June 2010 DNA from the gun; the DNA samples were “sub-exhibited” and
returned to the Xenia Police Department
June 2010 to late
No DNA testing was performed prior to trial
May 2011
May 25-27, 2011 Jury trial
Judgment of conviction; judgment forfeits gun to Xenia Police
June 8, 2011
Department and permits disposal of the gun
March & May 2014 Defense requests an inventory of biological evidence
Prosecutor responds with list of retained evidence, including
July 22, 2014
the Stallard Arms firearm
Oct 18, 2019 Moten files application for DNA testing of gun
State provides R.C. 2953.75(A) report indicating that the
Mar. 11, 2020 firearm (Property Tag No. 49959) was disposed of by the Xenia
Police Department on Jan. 14, 2011
{¶ 43} Moten argues that the State’s assertion that the police department disposed
of the gun at issue (Property Tag No. 49959) on January 14, 2011 is patently false. The
record supports Moten’s contention that the State’s report is inaccurate.
{¶ 44} Exhibit A to the State’s March 11, 2020 report states that it is a list of
evidence that the Xenia Police Department still has in regard to Case No. 2009-34352
(the Xenia Police Department’s internal case number for the robbery). Exhibit A
indicates that a Colt 380 firearm was destroyed on January 14, 2011. The evidence at
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Moten’s trial established that the Colt 380 was located in the car that Brady was driving
when the Regency Inn Motel was robbed. Patrol Sergeant Christian Stutes testified that
he went as a back-up officer to the traffic stop of Brady’s vehicle and took possession of
the Colt 380. Stutes stated that he “booked” the firearm into evidence, but inadvertently
marked the property tag for “destroy.” Detective Darrin Barlow, the property room
manager for the Xenia Police Department, testified that the Colt 380 semiautomatic
firearm was submitted to the police department’s property room, but was “destroyed.”
(Trial Tr. 263.) Barlow explained that “destroy” is a “generic [term] for the evidence
room,” and in this case, the Colt 380 was actually sold to the gun dealer to whom the
police department sells its usable guns. (Id. at 263-265.) Brady pled guilty to carrying a
concealed weapon regarding that firearm.
{¶ 45} The June 2010 BCI letter and the property tags for the cell phone and gun
collected from McDufford’s apartment show that the aggravated burglary was assigned a
separate internal case number, 2009-34353. (See exhibit to Moten’s Application for DNA
testing.) Property Tag No. 49959 describes the firearm collected from McDufford’s
apartment as a “9mm pistol Model JS, Serial #058497, Stallard Arms.” The State
presented this firearm at trial as State’s Exhibit 5. Brady testified that Moten had a gun
when he got out of Brady’s car on December 11, 2009; Brady identified State’s Exhibit 5,
as “the gun used in the robbery.” (Trial Tr. at 130.)
{¶ 46} Exhibit A to the prosecutor’s March 2020 inventory report does not address
the current status of the Stallard Arms JS 9mm firearm. However, it is clear that the
State was incorrect in its inventory report when it stated that the Property Tag No. 49959
was destroyed on January 14, 2011.
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{¶ 47} On this record, we cannot determine whether the Stallard Arms firearm was
otherwise destroyed or, instead, has not been located. (We note that the State’s March
11, 2020 report also does not account for the sub-exhibited DNA samples from the gun
that were extracted by BCI in 2010. BCI firearm expert Heather Williams testified at trial
that the sealed envelopes with DNA swabs were taped to the gun box.) Accordingly, for
purposes of R.C. 2953.74(C), it is unclear whether a parent sample exists, whether a
sufficient test sample can be extracted, and whether the chain of custody has been
maintained. We also cannot evaluate whether the State violated Moten’s due process
rights by destroying the firearm, as Moten argues on appeal.
{¶ 48} Moten argues that the purported destruction of the Stallard Arms firearm
also violated R.C. 2933.82. R.C. 2933.82 imposes a duty on a “governmental evidence-
retention entity” to secure biological evidence for certain homicide and sex offenses.
See R.C. 2933.82(B)(1); see State v. Bullitt, 8th Dist. Cuyahoga No. 103798, 2016-Ohio-
4868, ¶ 8. The obligations in R.C. 2933.82 do not apply to Moten’s aggravated robbery
and kidnapping charges. Thus, even assuming that the firearm were destroyed, the
State did not violate R.C. 2933.82 in this case.
{¶ 49} In denying Moten’s application for DNA testing, the trial court did not rely
upon the absence of the firearm. Rather, it concluded that, because the firearm was
recovered from McDufford’s apartment rather than the “crime scene” (i.e., the motel), the
first condition of R.C. 2953.74(C) was not met. The trial court further found that DNA
testing of the firearm would not be outcome determinative. See R.C. 2953.74(C)(5).
The court emphasized that Moten was identified as the perpetrator of the robbery and
kidnapping by both his co-conspirator, Brady, and the victim of the offense. The court
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concluded that a DNA profile belonging to someone other than Moten would “merely
prove that someone else touched the firearm at some point which is not, in and of itself,
outcome determinative in this case.”
{¶ 50} We find no error in the trial court’s determination that an exclusion result
would not be outcome determinative. “Outcome determinative” means that, “had the
results of DNA testing of the subject offender been presented at the trial of the subject
offender requesting DNA testing and been found relevant and admissible” with respect to
the offense for which the offender was convicted and is requesting the DNA testing, and
had those results been analyzed in the context of and upon consideration of all available
admissible evidence related to the offender’s case, “there is a strong probability that no
reasonable factfinder would have found the offender guilty of that offense.” R.C.
2953.71(L).
{¶ 51} The evidence at trial indicated that an aggravated robbery and kidnapping
occurred around 1:55 a.m. on December 11, 2009, at the Regency Inn Motel. The
motel’s night clerk, James Furnas, testified that a man entered the motel, showed Furnas
a gun, and told Furnas that he wanted money. The robber tied up Furnas during the
robbery. The robber left the motel around 2:05 a.m. and Furnas called the police soon
thereafter.
{¶ 52} Furnas testified that the robber was wearing a jacket with a hood and the
hood was up, but the man was not wearing a mask and Furnas saw the robber’s face.
Furnas was able to provide a description of the robber to the police, and Furnas identified
Moten as the perpetrator at trial; Furnas was “reasonably certain” of his identification.
(Trial Tr. at 76.)
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{¶ 53} Brady testified at trial that he and Moten were friends, and the two men had
been staying together at the Harmony Motel since the beginning of December 2009.
Brady acknowledged that he was involved in the robbery of the Regency Inn Motel as the
getaway driver. Brady described his vehicle as a white 2003 Chevy Impala. Brady
stated that he dropped off Moten at the CVS next to the Regency Inn Motel, that Moten
had a gun when he got out of the car, and that Brady was aware that Moten was going to
rob the motel. Brady testified that Moten was wearing a North Face apparel hooded
jacket and was dressed in all black. Brady drove off and intended to return for Moten,
but was stopped by the police before he could return.
{¶ 54} Officer Charles Sanso observed Brady’s white Chevy Impala as Brady
drove into the CVS parking lot next to the Regency Inn Motel. Sanso testified that the
Impala had a driver and a passenger, and the officer saw the passenger get out and walk
toward the Regency Inn Motel. Sanso followed the Impala when it left the CVS parking
lot. Officer Sanso stopped following the vehicle when Brady went to a McDonald’s, but
several minutes later, the officer searched for and stopped the Impala when he heard a
dispatch regarding the motel robbery.
{¶ 55} McDufford testified that, at approximately 2:15 a.m., a man came to his
apartment door, said something about needing a place to hide, and pointed a gun at him.
McDufford testified that he “reached out and grabbed it [the gun] and pointed it away.”
(Trial Tr. at 192.) McDufford stated that the man wedged himself in the doorway, so
McDufford pulled him inside the apartment. After a struggle, McDufford was able to
disarm the man and told him to get out. McDufford ejected the man from his apartment.
{¶ 56} Officer William Stotts responded to McDufford’s apartment and took
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possession of the gun, a Stallard Arms 9mm handgun. Stotts testified that McDufford
handed the gun to him; neither he nor McDufford was wearing gloves. (Trial Tr. at 220.)
Stotts further stated that he was bare-handed when he made the gun inoperable. (Id. at
222.) McDufford also found a cell phone where he and the man had struggled. Another
officer responded and took possession of the cell phone. At trial, Brady identified the
gun found in McDufford’s apartment (State’s Exhibit 5) as the 9mm firearm that Moten
had. Detective Holly Clay, lead detective, testified that no DNA testing was performed
on the gun.
{¶ 57} Carolyn Spradlin, manager of the Harmony Motel, testified that she saw a
television news report that showed the photo of a man staying at the hotel. Spradlin
went to the man’s room and asked if he was Moten; Moten responded affirmatively.
Spradlin testified that Moten had another man staying as a guest in the room; the
registration card indicated that the occupants had a white Impala. After Moten vacated
the room, Spradlin contacted the police. Detective Holly Clay responded to the motel
and collected items belonging to Moten and Brady.
{¶ 58} Through cross-examination, defense counsel challenged the credibility of
Brady and other State’s witnesses. Defense counsel emphasized that Brady had
received a reduced sentence in exchange for his cooperation, that the night clerk’s
identification was made 17 months after the offense, and that law enforcement made
several mistakes during the course of the criminal proceeding. Those mistakes included
the inadvertent sale of the Colt 380 and the fact that Detective Clay signed sworn
statements that contained falsehoods, which she admitted at trial.
{¶ 59} Upon review of the record as a whole, however, we conclude that the State
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presented a strong case that Moten was the perpetrator of the Regency Inn Motel robbery.
The night clerk identified Moten as the person who robbed the motel and tied him up.
Brady testified that he dropped off Moten by the motel and was to be the getaway driver
for the aggravated robbery committed by Moten. Although Brady told several falsehoods
to Detective Clay upon his initial arrest, Brady’s testimony at trial was corroborated in
large part by the testimony of other witnesses.
{¶ 60} As to the Stallard Arms JS 9mm, the evidence at trial reflected that several
individuals touched the gun on the day of the robbery, including Moten, McDufford, and
Officer Stotts. Brady had been staying with Moten at the Harmony Inn since early
December 2009. The trial court reasonably concluded that, even if the DNA sample
were found to belong to a person other than Moten, the result would merely indicate that
another person had touched the gun. Upon consideration of all available admissible
evidence related to the aggravated robbery and kidnapping charges, an exclusion result
from DNA analysis of the Stallard Arms firearm would not exonerate Moten of the
aggravated robbery and kidnapping. In short, we cannot conclude that “there is a strong
probability that no reasonable factfinder would have found the offender guilty” of the
aggravated robbery and kidnapping had DNA testing been conducted and Moten
excluded as a contributor to the DNA.
{¶ 61} The trial court properly denied Moten’s application for post-conviction DNA
testing of the Stallard Arms JS 9mm firearm.
V. Conclusion
{¶ 62} The trial court’s judgments will be affirmed.
.............
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DONOVAN, J. and HALL, J., concur.
Copies sent to:
Marcy A. Vonderwell
Lawrence Moten
Hon. Stephen Wolaver