[Cite as State v. Motion, 2018-Ohio-737.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104470




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                    FLOYD L. MOTON
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


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

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

        RELEASED AND JOURNALIZED: March 1, 2018
ATTORNEYS FOR APPELLANT

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 APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

Hannah Smith
Brian Radigan
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, 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 necessarily

introduce error of constitutional dimension.” State v. Whitaker, 8th Dist. Cuyahoga No.

83824, 2004-Ohio-5016, ¶ 11.        See also State v. Bragg, 10th Dist. Franklin No.

05AP-100, 2006-Ohio-1903, ¶ 24; State v. Brown, 8th Dist. Cuyahoga No. 73060, 1998

Ohio App. LEXIS 5589, 4 (Nov. 25, 1998).

       {¶22} Notwithstanding the well-written dissent, it would be hyperbole to suggest

that stopping three people from entering the courtroom in the middle of a witness’s
testimony is equivalent to “closing” the trial to the public. There is nothing in the record

that indicates whether other spectators were in the courtroom, but the specificity with

which the court described two of the removed spectators suggests that there were others

present. For this reason, this case is distinguishable from Bethel, where the facts make it

clear that the proceeding — a hearing where a plea agreement was discussed — was

entirely “closed to the public.”     Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854

N.E.2d 150, at ¶ 80.

       {¶23} Even if ordering the three people to leave the courtroom somehow

implicated Moton’s Sixth Amendment right to a public trial, the “triviality standard”

would apply to bar any finding of error.

       {¶24} This standard is not a harmless error standard, but “looks, rather, to whether

the actions of the court and the effect that they had on the conduct of the trial deprived the

defendant — whether otherwise innocent or guilty — of the protections conferred by the

Sixth Amendment.” Peterson v. Williams, 85 F.3d 39, 42 (2d Cir.1996). See also

Sowell, 10th Dist. Franklin No. 06AP-443, 2008-Ohio-3285, at ¶ 43. The “protections”

conferred by the Sixth Amendment guarantee of a public trial are to “safeguard against

any attempt to employ our courts as instruments of persecution.” In re Oliver, 333 U.S.

257, 270, 68 S.Ct. 499, 92 L.Ed. 682 (1948).

       {¶25} The limited record of the proceedings provides no basis for finding that the

trial judge’s actions implicated the primary protections conferred by the right to a public

trial. There record does not show, and Moton does not argue, that the trial judge barred
all spectators or members of the public from the courtroom — just the three. A Sixth

Amendment violation did not occur.

                                        III. Hearsay

       {¶26} During trial, a police officer testified to statements made to her by an

eyewitness to the shooting. The police officer testified that a witness (the person who

called 911 to report the shooting) said that she observed a male get out of an SUV, open

the passenger door, and fire three to four rounds into the car. Moton complains that

these statements were inadmissible hearsay.

       {¶27} Moton did not object to the statements, so we review them for plain error.

State v. Jalowiec, 91 Ohio St.3d 220, 233, 2001-Ohio-26, 744 N.E.2d 163. No plain

error exists.

       {¶28} It is unclear why Moton believes this testimony was prejudicial. It did not

identify him as the shooter, nor did it contain any facts that were not independently

verifiable by physical evidence. Viewed this way, the police officer’s testimony fell

under the well-established rule that “extrajudicial statements made by an out-of-court

declarant are properly admissible to explain the actions of a witness to whom the

statement was directed.” State v. Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d 401

(1980); State v. Phillips, 8th Dist. Cuyahoga No. 104806, 2017-Ohio-1284, ¶ 46. The

police officer testified that after learning what the witness saw, she brought the witness to

her police supervisor for further questioning. Her testimony thus explained the actions
she took when investigating the murder. The statements were properly admitted on that

basis.

         {¶29} In any event, the witness later testified at trial and confirmed the contents of

the 911 call she made to the police and that she gave the police officer information about

the events she witnessed.        This testimony was consistent with the police officer’s

testimony.     Moton subjected the witness to cross-examination, so any error in admitting

the hearsay statements by the witness was rendered harmless. State v. Tomlinson, 33

Ohio App.3d 278, 281, 515 N.E.2d 963 (12th Dist.1986); State v. Bidinost, 8th Dist.

Cuyahoga No. 62925, 1993 Ohio App. LEXIS 3097, 18 (June 17, 1993).

         {¶30} Judgment affirmed.

         It is ordered that appellee recover of appellant costs herein taxed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

         A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, JUDGE

KATHLEEN ANN KEOUGH, P.J., CONCURS;
MARY J. BOYLE, J., DISSENTS IN PART AND CONCURS IN JUDGMENT IN
PART (WITH SEPARATE OPINION ATTACHED)
MARY J. BOYLE, J., DISSENTING IN PART AND CONCURRING IN JUDGMENT

IN PART:

       {¶31} I respectfully dissent with respect to Moton’s first assignment of error. It is

my view that the trial court’s decision to exclude at least three people — and possibly

countless more — from the courtroom during Moton’s trial violated his Sixth

Amendment right to a public trial. I say “possibly countless more” because the trial court

instructed the three spectators to warn others who were outside the courtroom that

“there’s no in and out” when court was in session — effectively closing the courtroom to

anyone else who wished to enter.        The trial court further indicated that it told the

prosecutor to limit its spectators to three people. Without considering any of the four

factors required under Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31

(1984), this apparent “policy” of the trial court is unacceptable.

       {¶32} The right to a public trial has its roots in our English common law heritage.

In re Oliver, 333 U.S. 257, 266, 68 S.Ct. 499, 92 L.Ed. 682 (1948), citing Radin, The

Right to Public Trial, 6 Temp.L.Q. 381-384. This right “likely evolved long before the

settlement of our land as an accompaniment of the ancient institution of [a] jury trial.”

Id.

       {¶33} Today, few people look back fondly on 18th-century criminal justice.

Capital and corporal punishments, such as whipping and the stocks, were commonplace.

Women and minorities were excluded from a system run by white men.                   These

criticisms, while important, obscure a key virtue that we have lost: “[o]rdinary citizens
regularly saw criminal justice at work and took part in it.” Stephanos Bibas, Essay:

Transparency and Participation in Criminal Procedure, 81 N.Y.U.L.Rev. 911, 918

(2006). Indeed, in colonial America:

       Ordinary citizens regularly watched [criminal] trials, and gossip about the
       trials quickly spread through small colonial communities. Everyone could
       witness punishment in the town square, as convicts swung from the scaffold
       or languished in the stocks. In short, layman participated in most criminal
       cases and routinely saw criminal justice first-hand.

       ***

       The visible, public aspect of trials and punishment was essential to this
       scheme. The Sixth Amendment guaranteed local, public trials, which were
       fast and simple enough that viewers could understand them. * * *
       [C]olonists prized public trials as a safeguard for [a democratic]
       government. Public trials helped citizens to learn their rights and duties,
       bring relevant information to court, monitor government agents, prevent
       judicial corruption and favoritism, and check witness perjury. They also
       satisfied the public that truth had prevailed at trial, increasing public
       confidence in the system. Villages were small, and many locals knew the
       victims, the defendants, and what was happening in court.

Id. at 918, 920.

       {¶34} Today, however, most people do not attend criminal trials. Indeed, the vast

majority of people probably never step inside a courtroom. Instead, members of the

public who want to view a criminal proceeding do so because of real events in their

community that have affected them or their loved one.        Thus, most criminal court

audience members are not there by choice. Rather, they are there for matters that are

beyond their control. They are the people who wait in lines and fill courtrooms to watch

cases that they or their friends, family, or community members appear as victims,

defendants, or witnesses to a crime.
       {¶35} It is my view that the constitutional guarantee of a public trial is now more

important than ever because often times people arrested for crimes in the United States

“are overwhelming poor people of color, predominantly African Americans and Latinos.”

 Jocelyn Simonson, Article: The Criminal Court Audience in a Post-Trial World, 127

Harv.L.Rev. 2173, 2177 (2014) (arguing that the constitutional right to a public trial is

even “more important than it has been in centuries past” due to the fact that “about

ninety-five percent of criminal convictions result from pleas”).            Victims, too,

disproportionately come from the same communities.           Id.   Thus, the community

members attempting to gain access to a criminal proceeding are also more likely to be

from the same poor communities, which are “disproportionately affected by, but have

little input into, local criminal justice policies.” Id.

       {¶36} The open processes of justice serve “an important prophylactic purpose in

our society, providing an outlet for community concern, hostility, and emotion.”

Richmond Newspapers v. Virginia, 448 U.S. 555, 571, 100 S.Ct. 2814, 65 L.Ed.2d 973

(1980).   This “crucial prophylactic” aspect of the “administration of justice cannot

function in the dark; no community catharsis can occur if justice is ‘done in a corner [or]

in any covert manner.’” Id. “To work effectively, it is important that society’s criminal

process ‘satisfy the appearance of justice,’ and the appearance of justice can best be

provided by allowing people to observe it.” Id. at 572, quoting Offutt v. United States,

348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 (1954).

       “Without publicity, all other checks are insufficient: in comparison of
       publicity, all other checks are of small account. Recordation, appeal,
       whatever other institutions might present themselves in the character of
       checks, would be found to operate rather as cloaks than checks; as cloaks in
       reality, as checks only in appearance.”

Richmond Newspapers at 569, quoting 1 J. Bentham, Rationale of Judicial Evidence 524

(1827).

       {¶37} To be sure, “audience members in a criminal courtroom watch the players in

the room; they react to what they see and hear through facial expressions, laughs, and

grumbles.” Simonson, 127 Harv.L.Rev. at 2182. Most of all, they sit, watch, and listen.

 Simply by being there and listening, audience members can have a “palpable effect” on

the speakers in the courtroom. Id. The criminal court audience has the potential to play

out “one of the central historical functions” of observers in adjudication, i.e., denying the

government “‘unchecked authority.’”        Id., quoting Judith Resnik & Dennis Curtis,

Representing Justice 300, 302 (2011). As Justice Harlan observed nearly two decades

before Waller:

       “Essentially, the public-trial guarantee embodies a view of human nature,
       true as a general rule, that judges, lawyers, witnesses, and jurors will
       perform their respective functions more responsibly in an open court than in
       secret proceedings. A fair trial is the objective, and a public trial is an
       institutional safeguard for attaining it.”

Daniel Levitas, Scaling Waller: How Courts Have Eroded the Sixth Amendment Public

Trial Right, 59 Emory L.J. 493, 503 (2009), quoting Estes v. Texas, 381 U.S. 532, 85

S.Ct. 1628, 14 L.Ed.2d 543 (1965) (Harlan, J., concurring).

       {¶38} The criminal court audience has power that stems from simply being in the

courtroom. This power is “bolstered by its ability to act based on what it hears: not only
through voting for politicians, judges, and prosecutors, but also by contributing to public

discourse at local gatherings, protests, or even in conversations with neighbors.”

Simonson, 127 Harv.L.Rev. at 2177. By witnessing criminal trials, members of the

audience learn about “the efficacy and fairness of those policies.” Id. These informal

methods of political participation are essential to our criminal justice system. Indeed, it

is members of the public who hold the players in our criminal justice system accountable.

       {¶39} I could not agree more with the Ohio Supreme Court that the right to a

public trial is a “cornerstone of our democracy” that “should not be circumvented unless

there are extreme overriding circumstances.” State v. Lane, 60 Ohio St.2d 112, 119, 397

N.E.2d 1338 (1979). It is also important to remember that the right to “a public trial is

for the benefit of the accused,” so “that the public may see he is fairly dealt with and not

unjustly condemned, and that the presence of interested spectators may keep his triers

keenly alive to a sense of their responsibility and to the importance of their functions.”

Waller, 467 U.S. at 46, 104 S.Ct. 2210, 81 L.Ed.2d 31, quoting Gannett Co. v.

DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).

I. Waiver

       {¶40} Before turning to the merits of Moton’s assignment of error, I would first

address a procedural issue that was raised by the state but was not discussed by the

majority. The state argues that Moton waived his right to a public trial by not objecting

to the closure of the courtroom. The state’s argument raises an interesting issue because

the Ohio Supreme Court has seemingly adopted different approaches to it in State v.
Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150 and State v. Drummond,

111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038.

       {¶41} In Bethel, the appellant argued that he was entitled to a new hearing because

the trial court prohibited the public from entering the courtroom when the parties

discussed the plea agreement. Id. In its opinion, the court stated that “[a]lthough Bethel

did not object to the closing of the hearing, the right to a public trial under Section 10,

Article I of the Ohio Constitution cannot be waived by the defendant’s silence.” Id. at ¶

81, citing State v. Hensley, 75 Ohio St. 255, 79 N.E. 462 (1906). Accordingly, the court

considered appellant’s assignment of error.

       {¶42} Exactly two weeks later, however, in Drummond, the Ohio Supreme Court

adopted what seems to be the opposite approach. In that case, the trial court decided to

close the proceedings for the rest of the day to all members of the public except the media

following a few disruptive incidents.         The appellant objected, but the trial court

overruled the objection. The next day, the trial court, again, ordered that the courtroom

be cleared of all spectators except the media. This time, however, the appellant did not

object. On review, the Ohio Supreme Court noted that “[t]he violation of the right to a

public trial is considered structural error and not subject to harmless-error analysis” and

found that the closure on the former day was appropriate under the Waller factors. Id. at

¶ 50, citing Waller.    As to the latter day of trial, however, and despite its earlier

statements concerning structural error, the court declined to review the closure, finding

that the appellant had waived his right to a public trial. Specifically, the court noted that
“the defense did not object to the trial court’s action. Defense counsel were present

during the entire proceedings and were fully aware of the exclusion of the spectators from

the courtroom.     Thus, counsel’s failure to object to the closing of the courtroom

constitutes a waiver of the right to a public trial[.]” Id. at ¶ 59.

       {¶43} Bethel and Drummond have rendered confusion in Ohio appellate courts,

who seemingly have felt the need to adopt one case’s holding over the other based on

their contrary approaches to a defendant’s failure to object. Some, including the Second,

Ninth, and Tenth districts, continue to follow Bethel, holding that the defendant’s failure

to object to the closure of the courtroom does not waive the issue on appeal. In State v.

Sowell, 10th Dist. Franklin No. 06AP-443, 2008-Ohio-3285, the Tenth District refused to

follow Drummond, finding that “the Supreme Court of Ohio has more recently held that

the right to a public trial cannot be waived by silence.” Id. at ¶ 36. While it is my

opinion that the Tenth District’s reasoning was flawed — Bethel actually pre-dated

Drummond by two weeks — the court ultimately found that the appellant did not waive

his right to a public trial by not objecting.   In State v. Belcher, 2d Dist. Montgomery No.

24968, 2013-Ohio-1234, the Second District followed Sowell, stating:

       In view of these facts, we would normally conclude that Belcher waived the
       right to challenge the trial court’s action by failing to object. After
       Drummond was issued, however, the Tenth District Court of Appeals noted
       that “the Supreme Court of Ohio has more recently held that the right to a
       public trial cannot be waived by silence.” State v. Sowell, 10th Dist.
       Franklin No. 06AP-443, 2008-Ohio-3285, ¶ 36, citing State v. Bethel, 110
       Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 81.
Id. at ¶ 64. Further, in State v. Williams, 9th Dist. Summit No. 26014, 2012-Ohio-5873,

the Ninth District plainly chose to follow Bethel instead of Drummond. Id. at ¶ 7.

       {¶44} This court, on the other hand, followed Drummond in State v. Bolan, 8th

Dist. Cuyahoga No. 95807, 2011-Ohio-4501. In Bolan, the appellant argued that the trial

court’s closure of the courtroom during two witnesses’ testimony violated his right to a

public trial.   We disagreed, finding that the appellant waived that right when he

affirmatively consented to the trial court’s decision to close the proceedings for one

witness’s testimony and actually requested that the trial court close the proceedings

during a separate witness’s testimony. Bolan at ¶ 65. Therefore, we found that the

appellant waived his right and overruled his assignment of error. Id. at ¶ 67.

       {¶45} After a thorough examination of Bethel, Drummond, and lower appellate

decisions, I would find that the Ohio Supreme Court’s decisions may be reconciled.

Bethel’s holding that the right to a public trial may not be waived by silence was arguably

not implicated in Drummond because there, the appellant was not silent, objecting to the

trial court’s closure during one day of the trial. Drummond’s holding may not actually

undermine Bethel by instead allowing the waiver of the right to a public trial when a party

fails to renew an objection over a courtroom closure. In other words, the failure to renew

an objection to the closure is proof that a defendant consented to the closure. See State v.

Williams, 9th Dist. Summit No. 26014, 2012-Ohio-5873, ¶ 7. In that light, Bethel is still

good law and stands for the proposition that a defendant’s silence is not evidence that a

defendant consents to or waives the issue of closure.
       {¶46} Nevertheless, this court’s previous holding in Bolan must still be addressed.

 I would find that our reference to Drummond in Bolan was merely dicta, because the

facts in that case clearly showed that the appellant not only did not object during the

proceedings but affirmatively waived his right during one witness’s testimony and

actually requested that the courtroom be closed during another witness’s testimony.

Specifically, we noted, “With respect to Olgetree, defense counsel consented to the

closure and acknowledged that Bolan waived any prejudice by the courtroom being

emptied at the time Ogletree testified. With Smiley, defense counsel requested that the

courtroom be closed during his testimony.” See Bolan at ¶ 65. Hence, our observation

that “the defense did not object to the closure” and citation to Drummond was

unnecessary because defendants are permitted to waive their right to a public trial.

Further, Bolan did not implicate Bethel because, like the appellant in Drummond, the

appellant was anything but silent on the issue of closure, actively waiving the issue for

appellate review.

       {¶47} In this case, Moton did not object or make any statements in regard to the

closure. In other words, he was completely silent. In light of the above discussion, I

would therefore find both Drummond and Bolan to be distinguishable and Bethel to be

controlling, and in accord with Bethel, I would reject the state’s argument and find that

Moton’s failure to object to the trial court’s order did not waive his right to a public trial

and the issue is properly before this court.

II. Merits
       {¶48} The record demonstrates that the trial court violated Moton’s right to a

public trial during the cross-examination of Officer Saffo. During that testimony, an

unidentified individual entered the courtroom, and the following exchange took place:

       COURT:                Excuse me. What case are you here for?

       SPECTATOR:            The Moton case.

       COURT:                Step out. Lady in the hat and the man in the back,
                             what case are you here for?

       SPECTATOR:            This one.

       COURT:                Okay. 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. Go ahead.

       {¶49} In support of its holding that Moton’s right to a public trial was not violated,

the majority states, “The limited record of the proceedings provides no basis for finding

that the trial judge’s actions implicated the primary protections conferred by the right to a

public trial.” The majority supports that conclusion by arguing that (1) the trial judge

was merely controlling her courtroom and not required to make the necessary findings

under Waller, (2) the ordering of three spectators was not a “closure,” and, (3) even if

Moton’s right to a public trial were implicated, the triviality standard would apply and

result in no error. I disagree with all of these points.

       {¶50} First, it is my view that the trial court’s order removing the spectators

without making any findings, even if to control its courtroom, is contrary to Waller, 467

U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31. These findings must be made regardless of
whether the closure is full or partial.            See Drummond, 111 Ohio St.3d 14,

2006-Ohio-5084, 854 N.E.2d 1038, at ¶ 53 (holding that a court is still required to make

the Waller findings when partially closing its court proceedings).

       {¶51} The majority is correct that the right to a public trial is not absolute and must

sometimes yield to administer justice and control courtroom proceedings. Drummond at

¶ 51; see also State v. Sowell, 148 Ohio St.2d 554, 2016-Ohio-8025, 71 N.E.3d 1034, ¶ 28

(holding that the right to a public trial may sometimes “give way * * * to other rights or

interests, such as the defendant’s right to a fair trial or the government’s interest in

inhibiting disclosure of sensitive information.”). A trial court certainly has the discretion

and authority to control its proceedings.        State v. Sowell, 10th Dist. Franklin No.

06AP-443, 2008-Ohio-3285, ¶ 34; State v. Adkins, 144 Ohio App.3d 633, 643, 761

N.E.2d 94 (12th Dist.2001). “A trial court * * * may exclude those courtroom spectators

whose conduct is likely to interfere with the administration of justice or to denigrate the

protection of public health, safety, and morals.” Sowell at ¶ 34, citing State v. Grant, 8th

Dist. Cuyahoga No. 87556, 2007-Ohio-1460.

       {¶52} Nevertheless, a defendant’s right to a public trial cannot be freely bypassed

by a trial court’s ability to control its courtroom. In fact,

       [t]he presumption of openness may be overcome only by an overriding
       interest based on findings that closure is essential to preserve higher values
       and is narrowly tailored to serve that interest. The interest is to be
       articulated along with findings specific enough that a reviewing court can
       determine whether the closure order was properly entered.
Waller at 45, quoting Press-Ent. Co. v. Superior Court of California, Riverside Cty., 464

U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). In other words, a trial court’s order

excluding spectators must be “reasonable and necessary” and not unduly infringe on a

defendant’s right to a public trial. Adkins at 642-643, citing State v. Bayless, 48 Ohio

St.2d 73, 357 N.E.2d 1035 (1976); see also State v. Dubose, 174 Ohio App.3d 637,

2007-Ohio-7217, 884 N.E.2d 75, ¶ 72 (7th Dist.) (“[A] trial may only be closed when

deemed absolutely necessary”).

      {¶53} This court has reviewed whether a trial court’s order excluding the public

from its proceedings — “closure” — was reasonable and necessary by using the four-part

test set forth in Waller.    See State v. Driggins, 8th Dist. Cuyahoga No. 98073,

2012-Ohio-5287, ¶ 53; State v. Woods, 8th Dist. Cuyahoga Nos. 94141 and 94142,

2011-Ohio-817, ¶ 10; State v. Cottrell, 8th Dist. Cuyahoga No. 81356, 2003-Ohio-5806, ¶

18-22; State v. Washington, 142 Ohio App.3d 268, 271, 755 N.E.2d 422 (8th Dist.2001).

In Waller, the United States Supreme Court set forth the following test to determine if a

courtroom closure was necessary:

      [1] the party seeking to close the hearing must advance an overriding
      interest that is likely to be prejudiced; [2] the closure must be no broader
      than necessary to protect that interest; [3] the trial court must consider
      reasonable alternatives to closing the proceeding; and [4] [the trial court]
      must make findings adequate to support the closure.

Id. at 48. More recently, in accordance with the Ohio Supreme Court’s holding in

Drummond, Ohio courts have adopted an altered version of the Waller test when the

closure was only partial in nature.      See State v. Howse, 9th Dist. Lorain No.
12CA010251, 2012-Ohio-6106, ¶ 7; Bolan, 8th Dist. Cuyahoga No. 95807,

2012-Ohio-2381, at ¶ 7; State v. Breedlove, 7th Dist. Mahoning No. 05 MA 110,

2008-Ohio-1550, ¶ 83. For closure to be appropriate under that test, the party seeking

closure must advance a “substantial reason,” rather than an “overriding interest.” See id.

 The remaining factors are the same and must be satisfied as well for a partial closure to

be proper.

       {¶54} While this court has distinguished between total and partial closure in the

past and used the different tests, I find it unnecessary to make that distinction in the

present case because the remaining factors were clearly not satisfied. In Bethel, 110

Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, the court did not discuss whether the

closure was partial or total in nature because “the record in [that] case [did] not show that

any of the[] requirements were addressed.” Id. at 429.

       {¶55} The majority cites and relies upon State v. Morris, 157 Ohio App.3d 395,

2004-Ohio-2870, 811 N.E.2d 577 (1st Dist.). It is my view, however, that this case

actually demonstrates that the trial court’s closure in the present case was error because it

did not make the necessary findings under Waller. In Morris, the trial court “asked a

female to leave the courtroom before ordering the removal of ‘all those people.’” Id. at ¶

15. On review, the First District noted that the “record [did] not indicate the identity of

the persons who were subject to the court’s removal order or whether the courtroom was

cleared of all spectators” and “the record is silent as to any conduct that would have

prompted the removal order[.]” Id. The First District explained that “[t]he trial court’s
actions in ordering the removal of certain individuals may well have been warranted and

entirely appropriate due to disruptive conduct that impeded an overriding interest in the

court’s orderly administration of its docket.” Id. at ¶ 16. But it found that because the

trial court did not make the necessary findings, the defendant’s right to a public trial was

violated. Id. It reasoned that “on the record before us, we cannot say that the removal

of some or all of the spectators was necessary to protect an overriding interest, that there

were no viable alternatives to the removal, or that the order was narrow enough to protect

only an overriding interest.” Id.; see also State v. Clifford, 135 Ohio App.3d 207, 214,

733 N.E.2d 621 (1st Dist.1999) (“We hold that the trial court’s conclusory order for the

spectators to leave the courtroom does not provide us with a sufficient rationale for total

closure of the courtroom.”).

       {¶56} Bethel and Morris make it clear that removing the spectators from the

courtroom violated Moton’s right to a public trial because the trial court utterly failed to

(1) ensure that the closure was no broader than necessary, (2) determine that there were

no reasonable alternatives, and (3) make adequate findings on the record.

       {¶57} Even further, the record shows that only one of the spectators — the

spectator initially addressed by the judge — entered during the testimony. The record

does not establish that the other two spectators who were removed — the “lady in the hat

and the man in the back” — entered during Officer Safo’s testimony. In other words,

even if the trial court had stated on the record that it was closing the courtroom to prevent

disruption, nothing in the record shows that the “lady in the hat and the man in the back”
entered during the testimony or caused any type of disruption. The majority’s conclusion

that all three spectators were distracting is not supported by anything in the record.

       {¶58} Second, I disagree with the majority that the ordering of three spectators was

not a “closure.” A trial court need not remove all of the spectators from the courtroom

for that removal to constitute a closure; instead, as recognized by this court and other

Ohio courts many times, a closure can be partial in nature. See State v. Long, 10th Dist.

Franklin No. 16AP-708, 2017-Ohio-9322, ¶ 22 (finding that the removal of certain

spectators constituted partial closure and required an analysis under Waller); Grant, 8th

Dist. Cuyahoga No. 87556, 2007-Ohio-1460, at ¶ 15 (finding that the trial court’s

removal of two spectators from the courtroom during a witness’s testimony implicated the

appellant’s right to a public trial); Dubose, 174 Ohio App.3d 6, 2007-Ohio-7217, 884

N.E.2d 75, at ¶ 76 (finding that the removal of some of the spectators, but not members of

the media, constituted closure and needed to satisfy the Waller factors). And, as already

stated above, when a partial closure occurs, the trial court must make the necessary

findings under Waller.       See State v. Cottrell, 8th Dist. Cuyahoga No. 81356,

2003-Ohio-5806, ¶ 24; United States v. Simmons, 797 F.3d 409, 413-414 (6th Cir.2015).

       {¶59} Finally, the majority holds that even if Moton’s right to a public trial were

implicated — which I believe that it was — “the ‘triviality standard’ would apply to bar

any finding of error.”

       {¶60} Foremost, “[t]he violation of the right to a public trial is a structural error.

It is not subject to harmless-error analysis.”            Bethel, 110 Ohio St.3d 416,
2006-Ohio-4853, 854 N.E.2d 150, at ¶ 82, citing Waller; see also State v. Hill, 92 Ohio

St.3d 191, 199, 749 N.E.2d 274 (2001) (holding that structural errors are those that “are

so fundamental that they obviate the necessity for a reviewing court to do a harmless-error

analysis.”); Johnson v. Sherry, 586 F.3d 439, 443 (6th Cir.2009) (“Because of the great,

though intangible, societal loss that flows from closing courthouse doors, the denial of a

right to a public trial is considered a structural error for which prejudice is presumed.”).

A structural error “affect[s] the framework within which the trial proceeds,” and is more

than “simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279,

310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Thus, I disagree that the trial court’s error

was trivial.

       {¶61} Furthermore, the triviality standard should be narrowly applied. United

States v. Gupta, 699 F.3d 682, 687 (2d Cir.2011). It only applies when a courtroom

closing does not implicate the values contemplated by the Sixth Amendment, which

include “ensur[ing] that judge and prosecutor carry out their duties responsibly * * *

[and] discourag[ing] perjury.”      United States v. Perry, 479 F.3d 885, 890-891

(D.C.Cir.2007). The cases that utilize the triviality standard and that are relied on by the

majority are both nonjurisdictional and distinguishable. In Peterson v. Williams, 85 F.3d

39 (2d Cir.1996), the court found that the violation of the defendant’s right to a public

trial was trivial because it was “(1) extremely short, (2) followed by a helpful summation,

and (3) entirely inadvertent[.]” Id. at 44. In Sowell, 10th Dist. Franklin No. 06AP-443,

2008-Ohio-3285, the Tenth District found that the trial court properly removed one of the
defendant’s family members from the courtroom for making threatening gestures towards

a witness. Id. at ¶ 46.     In both of those cases, it was clear that the short, inadvertent

courtroom closure and the removal of a disruptive spectator did not impede the values

served by the Sixth Amendment.

       {¶62} The Second Circuit, however, reached a different conclusion in Gupta.

There, “despite not making any Waller findings, the district court intentionally excluded

the public from the courtroom for the entirety of voir dire.” Id. at 687. The court held

that “a trial court’s intentional, unjustified closure of a courtroom during the entirety of

voir dire cannot be deemed ‘trivial.’” Id. at 689. The court reiterated the importance of

the right to a public trial and found that to classify such closure as trivial “would

eviscerate [that] right entirely.” Id.

       {¶63} Here, the trial court’s closure was not inadvertent, there is no evidence

showing how long the closure occurred, how many spectators (beyond the three removed)

were affected, whether the removed spectators (and possibly others) were ever allowed

back inside the courtroom, and there is no evidence that any of the removed spectators

were disruptive. In fact, like Gupta, the trial court’s actions here, as demonstrated by the

record, and particularly in relation to the “lady in the hat and the man in the back,” were

entirely unjustified. Therefore, it is my view that the majority’s reliance on the triviality

standard is misplaced.

       {¶64} In sum, allowing a trial judge to close the courtroom without setting forth

the necessary findings as required by Waller, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d
31, sets forth a dangerous precedent.       It would allow a trial judge to eviscerate a

defendant’s constitutional right to a public trial by not explaining themselves and calling

it “courtroom control.”     There would be no way of telling whether a trial court’s

“courtroom control” was an abuse of discretion and violation of a defendant’s

constitutional right to a public trial because trial judges would no longer be required to set

forth the required findings on the record. See Presley v. Georgia, 558 U.S. 209, 215, 130

S.Ct. 721, 175 L.Ed.2d 675 (2010), quoting Press-Ent. Co., 464 U.S. 501, 104 S.Ct. 819,

78 L.Ed.2d 629 (holding that before closing courtroom proceedings, “the particular

interest, and threat to that interest, must ‘be articulated along with findings specific

enough that a reviewing court can determine whether the closure order was properly

entered.’”). This is not what Waller requires, and departing from clearly established

Supreme Court precedent does nothing to assist in the furtherance of justice and the

protection of constitutional rights. Instead, it robs Moton of his constitutional right to a

public trial.

       {¶65} When a trial court improperly closes its proceedings during trial in violation
of a defendant’s right to a public trial, an appellate court must remand the case for a new
trial. See Woods, 8th Dist. Cuyahoga Nos. 94141 and 94142, 2011-Ohio-817, at ¶ 27;
Dubose, 174 Ohio App.3d 637, 2007-Ohio-7217, 884 N.E.2d 75, at ¶ 123; State v.
Washington, 142 Ohio App.3d 268, 273, 755 N.E.2d 422 (8th Dist.2001); State v.
Clifford, 135 Ohio App.3d 207, 214, 733 N.E.2d 621 (1st Dist.1999). Therefore, I
believe we have no choice but to reverse and remand the case for a new trial. In light of
that holding, I would find that Moton’s fourth assignment of error challenging the
manifest weight of the evidence and his fifth assignment of error regarding hearsay are
moot. But because a sufficiency challenge is never moot, I concur in judgment only with
respect to the majority’s opinion regarding Moton’s second and third assignments of
error.
