[Cite as State v. Moten, 2012-Ohio-6046.]

 IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO 

STATE OF OHIO : 

Plaintiff-Appellee : C.A. CASE NO. 2011 CA 37 

vs. : T.C. CASE NO. 2009 CR 818 

LAWRENCE P. MOTEN : (Appeal from Common Pleas 

 Court - Criminal Division) 

Defendant-Appellant : 

 . . . . . . . . . 

 O P I N I O N

 Rendered on the 21st day of December, 2012. 

 . . . . . . . . . 

Stephen K. Haller, Prosecuting Attorney, by Nathaniel R. Luken, Assistant Prosecuting 

Attorney, Atty. Reg. No. 0087864, 61 Greene Street, Xenia, Ohio 45385 

Attorney for Plaintiff-Appellee 

Anthony R. Cicero, Atty. Reg. No. 0065408, 500 East Fifth Street, Dayton, Ohio 45402 

Attorney for Defendant-Appellant 

 . . . . . . . . . 

GRADY, P.J.: 

{¶ 1} Defendant Lawrence Moten appeals from his conviction and sentence for 

aggravated robbery, R.C. 2911.01(A)(1), and kidnaping, R.C. 2905.01(A)(2), both felonies of 

the first degree. 

{¶ 2} Early on the morning of December 11, 2009, Xenia Police Officer Roop was 

dispatched to the Regency Inn Motel on a report of an armed robbery. The night desk clerk, 

James Furnas, told the officer that a man came in, pointed a gun at him, and demanded 

money, which Furnas gave him. The robber then forced Furnas into a bathroom and tied his 
hands together. The robber also took Furnas’s watch. After the robber left the motel, Furnas 

freed himself and called the police. 

{¶ 3} Furnas described the robber as a young, clean-shaven, medium to dark 

complected black man, about five feet eight inches tall. The robber wore a dark, hooded 

jacket, with the hood up, but no mask. At trial, Furnas identified Defendant Moten as the 

man who robbed him. 

{¶ 4} Shortly before the robbery, Officer Sanso was parked in a school parking lot. 

A white Impala pulled in, but promptly left when its driver saw the officer’s police cruiser. 

Officer Sanso followed the car to a parking lot near the Regency Inn. There were two 

occupants. The passenger got out and walked toward the motel. He was wearing a grey 

hooded sweatshirt. When the driver pulled out of the lot, Officer Sanso followed him until 

he pulled into a fast food restaurant. 

{¶ 5} Minutes later, Officer Sanso heard the broadcast regarding the robbery. He 

gave his fellow officers information about the white Impala, suspecting that it may have been 

involved in the robbery. Officer Sanso soon found the car and, after seeing it cross over the 

marked line onto the shoulder of the road, decided to conduct a traffic stop. The car was 

driven by Clayton Brady, who had an open bottle of liquor in the car with him. Officer Sanso 

arrested Brady and called for back up. Sergeant Stutes responded. A handgun was found on 

the floor of Brady’s car. 

{¶ 6} Shortly after the robbery, Xenia police received a call from Eli McDufford, 

who lived near the Regency Inn Motel. McDufford stated that a black man wearing dark 

clothing and carrying a handgun had forced his way into McDufford’s apartment. McDufford 

fought the man, disarming him, and the man left. When Officer Stott arrived at the 
3

apartment, McDufford gave him the gun he took from the man. Officer Stott secured the 

loaded gun in his cruiser and told McDufford that an officer would return to talk to him 

further. 

{¶ 7} Shortly after Officer Stott left, McDufford found a cell phone on his floor, near 

where the altercation had occurred. McDufford assumed that the phone belonged to the man 

who had forced his way into the apartment. When Detective Barlow arrived at McDufford’s 

apartment a couple of hours later, McDufford gave the phone to the detective. 

{¶ 8} Detective Clay interrogated Brady several hours after the robbery. Brady 

admitted that he was to have been the getaway driver for Defendant after he robbed the motel. 

 Brady dropped Defendant off at the motel, but was stopped by police before he could return 

to pick Defendant up. Brady identified the coat worn by the robber on the surveillance tape 

as being the same as the one worn by Defendant when Brady dropped him off at the motel. 

Brady also identified the cell phone found at McDufford’s apartment as belonging to 

Defendant. In exchange for Brady’s trial testimony, the State reduced the charges against 

him and agreed not to oppose any motion he might file for judicial release. 

{¶ 9} Detective Clay looked at the call log and photographs on the cell phone and 

determined the number assigned to the phone. She then subpoenaed the phone records and 

learned that the phone belonged to Defendant, who had not reported it missing. As a result of 

Detective Clay’s prior contact with Defendant and her interrogation of Brady, she was able to 

identify Defendant as the robber from the videotaped surveillance of the motel. 

{¶ 10} Carol Spradlin, the manager of the Harmony Motel in Springfield, saw 

Defendant’s photo on the news on the night of the robbery. She recognized him as one of the 
4

men staying at the motel, but under a different name. The man had been staying in there for 

about ten days, along with another male who drove a white Impala. Spradlin went to 

Defendant’s room, where Defendant confirmed that he was the person whose photo was 

shown on the news broadcast. Within a couple of hours, Defendant checked out of the motel, 

telling Spradlin that he was going to take a bus to New York, where he had family. Spradlin 

called the police the next day. 

{¶ 11} Defendant was indicted on one count each of aggravated robbery, kidnaping, 

and aggravated burglary; each charge carried a firearm specification. Defendant was arrested 

in New York and extradited to Ohio. Defendant filed a motion to suppress, which the trial 

court overruled. The case proceeded to trial. The trial court dismissed the aggravated 

burglary charge at the close of the State’s case. The jury found Defendant guilty of the 

aggravated robbery and kidnaping charges and specifications. The trial court merged the two 

counts and sentenced Defendant to thirteen years in prison. 

{¶ 12} Defendant appeals, raising five assignments of error. 

{¶ 13} Defendant’s First Assignment of Error: 

“THE VERDICT SHOULD BE REVERSED BECAUSE THE TRIAL COURT ERRED 

WHEN IT OVERRULED APPELLANT’S MOTION TO SUPPRESS THE INFORMATION 

GAINED FROM THE CELL PHONE WITHOUT A WARRANT, WHICH VIOLATED HIS 

RIGHTS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES 

CONSTITUTION AND ARTICLE I, SECTION FOURTEEN OF THE CONSTITUTION OF 

OHIO.” 
5

{¶ 14} When considering a motion to suppress, the trial court assumes the role of the 

trier of facts and is therefore in the best position to resolve factual questions and evaluate the 

credibility of the witnesses. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 

N.E.2d 1168. Consequently, an appellate court must accept the trial court’s findings of fact if 

they are supported by competent, credible evidence. Id. Accepting those facts as true, the 

appellate court must then independently determine, without deference to the trial court’s 

conclusion, whether those facts satisfy the applicable legal standard. Id. 

{¶ 15} Defendant argues that cell phones are entitled to Fourth Amendment 

protection when they come into the custody of the police. In support, he relies on State v. 

Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949, wherein the Ohio Supreme 

Court held in its Syllabus that “[t]he warrantless search of data within a cell phone seized 

incident to a lawful arrest is prohibited by the Fourth Amendment when the search is 

unnecessary for the safety of law-enforcement officers and there are no exigent 

circumstances.” 

{¶ 16} However, in the present case, we are not faced with a cell phone that was 

searched after it was seized in a warrantless search. Instead, Defendant’s phone records were 

searched after he voluntarily abandoned it. “‘A defendant has no standing under the Fourth 

Amendment to the United States Constitution to object to a search and seizure of property 

that he has voluntarily abandoned.’” State v. Dennis, 182 Ohio App.3d 674, 

2009-Ohio-2173, 914 N.E.2d 1071, at ¶ 38-39, 41 (2d Dist.), quoting State v. Freeman, 64 

Ohio St.2d 291, 414 N.E.2d 1044 (1980), paragraph two of the Syllabus. 
6

{¶ 17} In State v. Dailey, 3d Dist. Logan App. No. 8-10-01, 2010-Ohio-4816, the 

Third District Court of Appeals considered the constitutionality of a police search of data from 

a cell phone the defendant abandoned when a security guard attempted to stop him following a 

suspected incident of shop lifting. The Court held that “voluntary abandonment is a prime 

example of when a warrantless search of a cell phone may be conducted since it is clear that a 

defendant lacks standing to object to a search and seizure of property that he has voluntarily 

abandoned.” Id. at ¶ 21. 

{¶ 18} Similarly, Defendant voluntarily abandoned his phone at McDufford’s 

apartment. He left both the phone and the gun behind when he left the apartment. 

Moreover, he made no attempts to recover the phone, or to even report the phone as missing. 

Because Defendant voluntarily abandoned his cell phone, he lacked standing to challenge the 

search of that phone. 

{¶ 19} Defendant’s first assignment of error is overruled. 

{¶ 20} Defendant’s Second Assignment of Error: 

“THE VERDICT SHOULD BE REVERSED BECAUSE THE TRIAL COURT ERRED 

WHEN IT ADMITTED HEARSAY WITHIN HEARSAY FROM DETECTIVE CLAY 

WHEN SHE TESTIFIED ABOUT DOCUMENTARY EVIDENCE ALLEGEDLY 

DISCOVERED AT THE HARMONY MOTEL, WHICH WAS IN VIOLATION OF 

APPELLANT’S RIGHTS GUARANTEED BY THE DUE PROCESS CLAUSES OF [THE] 

FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION, AND ARTICLE I, SECTIONS TEN AND FOURTEEN OF THE 

CONSTITUTION OF OHIO.” 
7

{¶ 21} The admission or exclusion of evidence rests within the sound discretion of the 

trial court and will not be disturbed on appeal absent an abuse of that discretion. State v. 

Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). An “[a]buse of discretion” has been 

defined as an attitude that is unreasonable, arbitrary or unconscionable. Huffman v. Hair 

Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248, 1252 (1985). It is to be expected that 

most instances of abuse of discretion will result in decisions that are simply unreasonable, 

rather than decisions that are unconscionable or arbitrary. 

{¶ 22} Defendant argues that the trial court abused its discretion in allowing Detective 

Clay to offer hearsay evidence in violation of Evid.R. 801(C), when she testified that 

Defendant’s name was on several documents recovered from the room he had vacated in the 

Harmony Motel. “‘Hearsay’ is a statement other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” 

Evid.R. 801(C). 

{¶ 23} Detective Clay’s testimony was not “hearsay within hearsay,” which is hearsay 

testimony which embraces other hearsay. Detective Clay’s testimony concerning the fact that 

she discovered the documents and what they contained was based on her own personal 

knowledge concerning those matters, not what another declarant told her. Therefore, the 

officer’s testimony was not hearsay. The issue is whether the declarations the documents 

contained is hearsay, when offered through the testimony of Detective Clay. 

{¶ 24} Although excluding the documents themselves, the trial court did permit 

Detective Clay’s testimony that the documents contained Defendant’s name. In reaching this 

decision, the trial court relied on State v. Dawson, 10th Dist. Franklin No. 97AP10-1300, 
8

1998 WL 481065 (Aug. 13, 1998), wherein the Court held that a police officer’s testimony 

concerning names and addresses contained in documents and where those documents were 

found is not hearsay when offered to connect the defendants to each other and/or to a certain 

location, because it is not offered for the truth of the matter asserted. 

{¶ 25} In cases in which words have independent legal consequences, the words are 

relevant without regard to their truth as evidence of “operative facts,” and are therefore not 

hearsay. Weissenberger, Ohio Evidence Treatise, § 801.8 (2011 Ed.). In Dawson, the fact 

that the defendant’s name was on documents found in a particular location was an operative 

fact that connected the defendant to that location. Likewise, in the present case, the fact that 

Defendant’s name was on documents found in a motel room linked him with that location, 

and were admissible for that purpose. The significance of that evidence is that it connected 

him with Clayton Brady, the admitted driver of their getaway car. The documents were not 

offered to prove the truth of any declaration they contained. 

{¶ 26} Defendant’s second assignment of error is overruled. 

{¶ 27} Defendant’s Third Assignment of Error: 

“THE VERDICT SHOULD BE REVERSED BECAUSE THE TRIAL COURT ERRED 

WHEN IT FAILED TO DISMISS COUNT I, AGGRAVATED ROBBERY, WHEN THE 

EVIDENCE AT TRIAL WAS DIFFERENT THAN THE BILL OF PARTICULARS, 

WHICH WAS IN VIOLATION OF APPELLANT’S RIGHTS GUARANTEED BY THE 

DUE PROCESS CLAUSES OF [THE] FIFTH AND FOURTEENTH AMENDMENTS TO 

THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTIONS TEN AND 

FOURTEEN OF THE CONSTITUTION OF OHIO.” 
[Cite as State v. Moten, 2012-Ohio-6046.]

{¶ 28} Defendant argues that the trial court should have dismissed the aggravated 

robbery charge because the State’s evidence at trial did not support the State’s allegation in its 

bill of particulars that Defendant stole Furnas’s wallet. We note that Defendant did not raise 

this issue in the trial court, thereby waiving all but plain error. State v. Wickline, 50 Ohio 

St.3d 114, 552 N.E.2d 913 (1990). Plain error does not exist unless it can be said that but for 

the error, the outcome of the trial would clearly have been otherwise. State v. Long, 53 Ohio 

St.2d 91, 372 N.E.2d 804 (1978). 

{¶ 29} Crim.R. 33(E) states: 

No motion for a new trial shall be granted or verdict set aside, nor shall any 

judgment of conviction be reversed in any court because of * * * (2) A variance 

between the allegations and the proof thereof, unless the defendant is misled or 

prejudiced thereby. 

{¶ 30} Crim.R. 33(E)(2) is consistent with R.C. 2941.26, which provides that a 

variance between an indictment and the evidence offered in proof thereof “in the name or 

description of a matter or thing therein named or described” is not a ground for acquittal 

unless the court finds “that such variance is material to the merits of the case or may be 

prejudicial to the defendant.” 

{¶ 31} Defendant relies on State v. Lewis, 21 Ohio St.2d 203, 257 N.E.2d 59 (1970). 

In Lewis, the defendant and two others were charged with conspiracy in defrauding a hospital. 

 The proof the State offered differed from the manner of fraud alleged in the indictment. The 

Supreme Court held that in that event the alleged conspiracy was not proved, and therefore the 
10

variance was prejudicial to the defendant for purposes of R.C. 2941.26. In the present case, 

no conspiracy was alleged. 

{¶ 32} The State’s bill of particulars alleged that Defendant demanded both the 

motel’s money from Furnas, as well as Furnas’s wallet. In his appellate brief, Defendant 

argues that “Mr. Furnas never testified that his wallet or any other property of his was taken 

without consent.” This is not true; as Defendant concedes elsewhere in his brief, Furnas 

testified that Defendant forced him to turn over his watch. 

{¶ 33} In State v. Brozich, 108 Ohio St. 559, 141 N.E. 491 (1923), the Ohio Supreme 

Court held that in a prosecution for burglary and larceny, a variance in the identity of the 

stolen property did not prejudice the defendant. Similarly, we have held that in a prosecution 

for receiving stolen property, a bill of particulars alleging that the stolen property was the 

victim’s wallet, when the evidence at trial indicated that the stolen property was photos 

removed from the wallet, was not a prejudicial variance. State v. Channels, 2d Dist. Greene 

App. No. 94-CA-15, 1994 WL 730149 (Dec. 30, 1994). 

{¶ 34} We fail to see how, on the plain error standard of review, the variance between 

the information provided by the bill of particulars and the State’s evidence at trial prejudiced 

Defendant concerning the identity of the personal property stolen from Furnas, which is not an 

element of the offense of aggravated robbery. That is particularly true where, as here, the 

Defendant also stole money. Notably, Defendant fails to provide us with any explanation of 

how this minor deviation prejudiced his defense. 

{¶ 35} Defendant’s third assignment of error is overruled. 

{¶ 36} Defendant’s Fourth Assignment of Error: 
[Cite as State v. Moten, 2012-Ohio-6046.]

“THE VERDICT SHOULD BE REVERSED BECAUSE THERE IS INSUFFICIENT 

EVIDENCE TO WARRANT A CONVICTION, AND THE VERDICT IS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE.” 

{¶ 37} A sufficiency of the evidence argument challenges whether the State has 

presented adequate evidence on each element of the offense to allow the case to go to the jury 

or sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 

541 (1997). The proper test to apply to such an inquiry is the one set forth in paragraph two 

of the Syllabus of State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991): 

{¶ 38} “An appellate court’s function when reviewing the sufficiency of the evidence 

to support a criminal conviction is to examine the evidence admitted at trial to determine 

whether such evidence, if believed, would convince the average mind of the defendant’s guilt 

beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a 

light most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime proven beyond a reasonable doubt.”

{¶ 39} On the other hand, a weight of the evidence argument challenges the 

believability of the evidence and asks which of the competing inferences suggested by the 

evidence is more believable or persuasive. State v. Hufnagle, 2d Dist. Montgomery No. 

15563, 1996 WL 501470 (Sept. 6, 1996). The proper test to apply to that inquiry is the one 

set forth in State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983): 

The court, reviewing the entire record, weighs the evidence and all 

reasonable inferences, considers the credibility of witnesses and 

determines whether in resolving conflicts in the evidence, the jury lost its 
12

way and created such a manifest miscarriage of justice that the conviction 

must be reversed and a new trial ordered. Accord, State v. Thompkins, 78 

Ohio St.3d 380, 678 N.E.2d 541 (1997). 

{¶ 40} The credibility of the witnesses and the weight to be given to their 

testimony are matters for the trier of facts to resolve. State v. DeHass, 10 Ohio St.2d 230, 

227 N.E.2d 212 (1967). In State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 

476684 (Aug. 22, 1997), we observed: 

Because the factfinder * * * has the opportunity to see and hear the 

witnesses, the cautious exercise of the discretionary power of a court of 

appeals to find that a judgment is against the manifest weight of the 

evidence requires that substantial deference be extended to the factfinder's 

determinations of credibility. The decision whether, and to what extent, to 

credit the testimony of particular witnesses is within the peculiar 

competence of the factfinder, who has seen and heard the witness. 

{¶ 41} Defendant was convicted of aggravated robbery, in violation of R.C. 

2911.01(A)(1), which states: “No person in attempting or committing a theft offense, as 

defined in section 2913.01 of the revised code, * * * shall * * * [h]ave a deadly weapon on or 

about the offender’s person or under the offender’s control and either display the weapon, 

brandish it, indicate that the offender possesses it, or use it.” R.C. 2913.01(K)(1) offers one 

definition of theft as a violation of R.C. 2913.02. In turn, R.C. 2913.02(A) states that “No 

person, with purpose to deprive the owner of property or services, shall knowingly obtain or 
13

exert control over either the property or services in any of the following ways: (1) Without the 

consent of the owner * * *; (4) By threat; (5) By intimidation.” 

{¶ 42} Defendant argues that his aggravated robbery conviction was not supported by 

sufficient evidence because the State failed to prove that Furnas’s watch was taken without his 

consent. His claim fails for two reasons. First, Defendant’s argument ignores the theft of the 

motel’s money, which is sufficient to support his aggravated robbery conviction. 

Furthermore, in considering the theft of Furnas’s watch, lack of consent is but one way that the 

State may prove a theft offense. 

{¶ 43} Furnas testified that Defendant entered the motel brandishing a gun. 

Defendant pointed that gun at Furnas and demanded both money and Furnas’s watch. While 

there may have been no direct evidence that Furnas did not consent to Defendant demanding 

his watch at gunpoint, the evidence certainly supports an inference that Defendant obtained the 

watch by threat or intimidation. Circumstantial and direct evidence inherently possess the 

same probative value. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). Therefore, 

the State’s evidence was sufficient to warrant submitting the aggravated robbery charge to the 

jury. 

{¶ 44} Defendant also argues that both of his convictions were against the manifest 

weight of the evidence because the State’s witnesses were not credible. This court will not 

substitute its judgment for that of the trier of facts on the issue of witness credibility unless it 

is patently apparent that the trier of facts lost its way in arriving at its verdict. State v. 

Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL 691510 (Oct. 24, 1997). 
14

{¶ 45} Furnas identified Defendant as the man who entered the Regency Inn, pointed a 

gun at him, and demanded money and his watch. Furnas also testified that Defendant forced 

him into the bathroom and tied him up. The State also offered testimony from Brady, 

McDufford, Spradlin, and several police officers. Even had the jurors found that some of the 

witnesses lacked credibility, we conclude that when all of the State’s evidence is taken as a 

whole, the jury did not clearly lose its way in convicting Defendant of aggravated robbery and 

kidnaping. 

{¶ 46} Defendant’s fourth assignment of error is overruled. 

{¶ 47} Defendant’s Fifth Assignment of Error: 

“THE VERDICT AGAINST APPELLANT SHOULD BE REVERSED BECAUSE HE 

RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, AND WAS DENIED THE 

OPPORTUNITY TO REPRESENT HIMSELF, IN VIOLATION OF HIS RIGHTS UNDER 

THE DUE PROCESS CLAUSES OF THE FIFTH AND FOURTEENTH AMENDMENTS 

TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION TEN OF THE 

OHIO CONSTITUTION, AS WELL AS APPELLANT’S RIGHT TO COUNSEL UNDER 

THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.” 

{¶ 48} Counsel’s performance will not be deemed ineffective unless that performance 

is proven to have fallen below an objective standard of reasonable representation and, in 

addition, prejudice to the defendant arises from counsel’s performance. Strickland v. 

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In determining whether 

counsel’s performance has fallen below an objective standard of reasonable representation, 
15

“[a] court must indulge a strong presumption that counsel’s conduct falls within the wide 

range of reasonable professional assistance.” Id. 

{¶ 49} Hindsight may not be allowed to distort the assessment of what was reasonable 

in light of counsel’s perspective at the time, and a debatable decision concerning trial strategy 

cannot form the basis of a finding of ineffective assistance of counsel. State v. Cook, 65 Ohio 

St.3d 516, 524-525, 605 N.E.2d 70 (1992). To show that a defendant has been prejudiced by 

counsel’s deficient performance, “[t]he defendant must show that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding would 

have been different. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Strickland at 694. 

{¶ 50} Defendant insists that his trial counsel’s performance at trial and the jury’s 

rapid verdict indicate that counsel was ineffective. Defendant fails to offer any specific 

examples of counsel’s allegedly deficient performance at trial. Moreover, contrary to 

Defendant’s vague assertion, the record reveals that defense counsel appeared well-prepared 

for trial. For example, counsel thoroughly cross-examined the State’s witnesses, and he made 

appropriate objections to various testimony and exhibits. Also contrary to Defendant’s claim, 

trial counsel did have a theory of the case, which was that the police failed to do everything 

they could have in their investigation, particularly with regard to possible fingerprint and DNA 

evidence. The fact that the jury was quick to reach a verdict reflects less on defense counsel’s 

performance than on the strength of the State’s case. 
16

{¶ 51} Defendant also argues that the trial court violated his right of 

self-representation when it overruled his motion to proceed pro se. The record does not 

demonstrate that Defendant made that request. 

{¶ 52} On May 17, 2011, Defendant asked the court to remove his second appointed 

counsel because he had met with Defendant but once, and had not filed motions or made 

objections Defendant requested. However, Defendant did not ask to represent himself, and 

the court did not remove the counsel it had appointed. 

{¶ 53} On the day of trial, May 25, 2011, Defendant again stated that he did not want 

his appointed counsel to represent him. (Tr. 9). However, though he gave his reasons for 

that request, Defendant did not invoke his right to represent himself. The court expressly 

found that “Mr. Moten has been advised of his right to represent himself under the 

Constitution and he’s indicated to this court that he does not elect to do so.” (Tr. 15). 

{¶ 54} The record does not support Defendant’s claim that the court violated his right 

of self-representation. 

{¶ 55} Defendant’s fifth assignment of error is overruled. 

{¶ 56} Having overruled all five of Defendant’s assignments of error, we will affirm 

Defendant’s convictions. 

Donovan, J., and Froelich, J., concur. 

Copies mailed to: 

Nathaniel R. Luken, Esq. 

Anthony R. Cicero, Esq. 

Hon. Michael A. Buckwalter