[Cite as State v. Moreland, 2026-Ohio-2310.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : C.A. Nos. 30449; 30450 Appellee : : Trial Court Case Nos. 2023 CR 03499; v. : 2024 CR 00649/1 : TOMMY MORELAND : (Criminal Appeal from Common Pleas : Court) Appellant : : FINAL JUDGMENT ENTRY & OPINION ...........
Pursuant to the opinion of this court rendered on June 18, 2026, the judgments of the
trial court are affirmed.
Costs to be paid as stated in App.R. 24.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
serve notice of this judgment upon all parties and make a note in the docket of the service.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
MARY K. HUFFMAN, JUDGE
TUCKER, J., and EPLEY, J., concur. OPINION MONTGOMERY C.A. Nos. 30449; 30450
ANTHONY D. MAIORANO, Attorney for Appellant ANDREW T. FRENCH, Attorney for Appellee
HUFFMAN, J.
{¶ 1} Tommy Moreland appeals from his judgment entries of conviction on multiple
charges, including murder and felonious assault. For the following reasons, the judgments
of the trial court are affirmed.
Procedural History
{¶ 2} On December 15, 2023, Moreland was indicted on one count of failure to comply
with an order or signal of a police officer (“failure to comply”) after he fled from police in a
rented Toyota RAV4. At the time of the offense, law enforcement suspected that Moreland
was involved in the shooting death of 15-year-old H.W., which occurred earlier on the same
day, November 17, 2023, around 7:00 a.m., at the intersection of Philadelphia Drive and
Turner Road. H.W. was shot in the head while sitting in the passenger seat of a white Impala
driven by Baretta Byrdsong, a staff member of the group home where H.W. resided. On
March 13, 2024, Moreland was indicted on two counts of murder, three counts of felonious
assault, two counts of tampering with evidence, and one count each of discharging a firearm
on or near prohibited premises and improper handling of a firearm in a motor vehicle. All
counts but the tampering with evidence charges included a three-year firearm specification
and a specification for discharging a firearm from a motor vehicle. On August 27, 2024, the
State moved to join both cases for trial. Over objection by Moreland, the court granted the
motion.
2 {¶ 3} Although trial was scheduled for September 30, 2024, on September 2, 2024,
Moreland sought and received a continuance until March 10, 2025. On March 4, 2025, a
notice of substitution of counsel was filed by two attorneys on behalf of Moreland. At the final
pretrial conference the following day, the court advised substitute counsel to be prepared for
trial as scheduled. It declined substitute counsel’s request for a continuance and ordered
current defense counsel to proceed with his representation of Moreland if substitute counsel
was not prepared to proceed to trial.
{¶ 4} At trial, twenty-two witnesses provided testimony on behalf of the State, and
Moreland was found guilty of all counts and specifications. Disposition occurred on April 9,
2025. After merger, the court sentenced Moreland to an aggregate prison term of 37 to
46.5 years to life for his convictions of the offenses charged in the murder case to be served
consecutively to a term of 36 months for his conviction of failure to comply. Moreland timely
appealed, asserting three assignments of error.
Assignments of Error and Analysis
I. Denial of Motion to Substitute Counsel
{¶ 5} In his first assignment of error, Moreland argues that the Court violated his Sixth
Amendment “right to counsel of his choosing” in two respects. First, he argues that upon the
filing of his notice of substitution of counsel six days before his trial was scheduled, the court
improperly ordered substitute counsel to be prepared for trial as scheduled and denied his
substitute counsel’s motion to continue. He claims that he and defense counsel “were not
communicating effectively,” and the motion to substitute counsel accordingly should have
been granted.
{¶ 6} Second and “[m]ost relevant,” Moreland asserts that Christian Fannon, who
testified that Moreland confessed to the shooting, previously had been represented by the
3 Office of the Public Defender, where Moreland’s counsel was employed. Moreland asserts
that the prior representation of Fannon created another conflict of interest for defense
counsel. He directs our attention to State v. Hackney, 2021-Ohio-2064 (6th Dist.), for the
proposition that the potential for conflict arises especially in the context of cross-examination.
{¶ 7} The State responds that any conflict related to the prior representation of
Fannon was never raised before the trial court, and “based on the totality of the
circumstances, the trial court did not abuse its discretion in the manner in which it handled
Moreland’s motion to substitute counsel.” It argues that there is no reason to believe that the
past representation of Fannon “impacted [defense counsel’s] cross examination” of Fannon,
and that any conflict between Moreland and defense counsel did not prevent an adequate
defense.
{¶ 8} In reply, Moreland argues that a duty to inquire arises “where a court knows or
reasonably should know of an attorney’s possible conflict of interest” and that “the failure to
inquire into the possible conflict creates a presumed prejudice.” He asserts that defense
counsel made the court aware of a conflict in the form of the breakdown in communication
between him and Moreland, and that another “possibility of a conflict” existed based on
defense counsel’s prior representation of Fannon. According to Moreland, the trial court’s
“lip service” to him at the final pretrial conference “could not amount to a proper inquiry,”
citing State v. Smith, 2012-Ohio-5020, ¶ 32 (3d Dist.) (“In [State v. Johnson, 2010-Ohio-315,
¶ 3 (3d Dist.)] a review of several seminal United States Supreme Court cases clearly
demonstrated that where a trial court knows or reasonably should know of an attorney’s
possible conflict of interest in the representation of a person charged with a crime, the trial
court has an affirmative duty to inquire whether a conflict actually exits.”).
4 {¶ 9} A trial court’s decision on a motion to substitute counsel is reviewed under an
abuse of discretion standard. State v. Murphy, 91 Ohio St.3d 516, 523 (2001). “A trial court
abuses its discretion when it makes a decision that is unreasonable, unconscionable, or
arbitrary.” State v. Darmond, 2013-Ohio-966, ¶ 34, citing State v. Adams, 62 Ohio St.2d 151,
157 (1980). Most instances of abuse of discretion occur when a trial court makes a decision
that is unreasonable. State v. Gilbreath, 2022-Ohio-3759, ¶ 8 (2d Dist.), citing AAAA Ents.,
Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990).
“‘A decision is unreasonable if there is no sound reasoning process that would support that
decision.’” Id., quoting AAAA Ents. at 161.
{¶ 10} While the Sixth Amendment comprehends the right to select and be
represented by one’s preferred attorney, “the essential aim of the Amendment is to
guarantee an effective advocate for each criminal defendant rather than to ensure that a
defendant will inexorably be represented by the lawyer whom he prefers.” State v. Nicholson,
2007-Ohio-6653, ¶ 12 (8th Dist.), citing State v. Cobb, 2007-Ohio-1885 (4th Dist.), citing
Wheat v. United States, 486 U.S. 153, 159 (1988). An indigent defendant is entitled to
competent representation but not to have a particular attorney of his choosing represent
him. State v. Brock, 2017-Ohio-759, ¶ 25 (2d Dist.).
{¶ 11} Multiple factors bear consideration when evaluating a request to substitute
counsel. The trial court must balance “‘the accused’s right to counsel of his choice and the
public’s interest in the prompt and efficient administration of justice.’” State v. Chatmon,
2016-Ohio-1201, ¶ 8 (5th Dist.), quoting State v. Jones, 91 Ohio St.3d 335, 343 (2001). The
timeliness of a substitution motion is also a crucial factor in determining whether a denial of
a motion to substitute counsel constitutes an abuse of discretion; a trial court’s “difficult
responsibility of assembling witnesses, lawyers and jurors for trial ‘counsels against
5 continuances except for compelling reasons.’” State v. Howard, 2013-Ohio-2884, ¶ 40
(5th Dist.), quoting Morris v. Slappy, 461 U.S. 1, 11 (1983).
{¶ 12} In considering these factors, courts have “‘wide latitude in balancing the right
to counsel of choice against the needs of fairness and against the demands of its calendar.’”
State v. Frazier, 2012-Ohio-1198, ¶ 26 (8th Dist.), quoting United States v. Gonzalez-Lopez,
548 U.S. 140, 152 (2006). To “justify the discharge of court-appointed counsel, a defendant
must show ‘“good cause, such as a conflict of interest, a complete breakdown in
communication, or an irreconcilable conflict which leads to an apparently unjust result.”’” Id.
at ¶ 27, quoting State v. Pruitt, 18 Ohio App.3d 50, 57 (8th Dist. 1984), quoting United States
v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972).
{¶ 13} In terms of a breakdown of the attorney-client relationship, the dispute must
be “‘of such magnitude as to jeopardize [a] defendant’s Sixth Amendment right to effective
assistance of counsel.’” Brock, 2017-Ohio-759, at ¶ 25 (2d Dist.), quoting State v. Coleman,
2015-Ohio-5381, ¶ 10 (2d Dist.). “‘Disagreement between the attorney and client over trial
tactics and strategy does not warrant a substitution of counsel. Moreover, mere hostility,
tension, and personal conflicts between attorney and client do not constitute a total
breakdown in communication if those problems do not interfere with the preparation and
presentation of a defense.’” Id., quoting Coleman at ¶ 11.
{¶ 14} In Hackney, cited by Moreland regarding cross-examination where a conflict
is present, the appellant claimed that the trial court abused its discretion in granting the
State’s motion to disqualify defense counsel, and the Sixth District affirmed. Hackney, 2021-
Ohio-2064, at ¶ 1 (6th Dist.). Defense counsel’s simultaneous representation of the
defendant and a witness for the State created a serious potential conflict of interest, which
disqualified counsel from representing defendant. Because “the purpose of cross-
6 examination is to discredit any testimony that is favorable to the state, it [was] unlikely that
[counsel] could vigorously cross-examine [the State’s witness] while having her as a client.”
Id. at ¶ 14. Under those circumstances, Hackney found that “the serious potential conflict is
clear.” Id. at ¶ 16.
Final Pretrial Hearing
{¶ 15} Here, at the final pretrial hearing, five days before trial, the court noted that the
motion to substitute counsel had been filed in the late afternoon on the previous day. The
court indicated that it had spoken to substitute counsel on the phone and advised them that
Moreland “can have any attorney that he wants representing him” at trial, but they would
need to be ready to proceed as scheduled because the court was not inclined to grant
another continuance. Substitute counsel stated that neither of them was prepared and that
they would need “as much time as the Defendant felt fair” to review discovery and talk to
witnesses.
{¶ 16} The court stated that the trial date was continued once for an extended period
at Moreland’s request, and the court had advised counsel and Moreland at the time of the
first continuance that the matter would not be continued again. The court noted that
Moreland was made aware of the March 10, 2025 trial date when his motion for continuance
was granted in September 2024. It was significant to the court that the matter had been on
the court’s docket for quite some time, it stressed a need to move forward, and it stated it
was aware that original defense counsel was prepared for trial. The court further indicated
that “the record should reflect that [substitute counsel] filed the motion prior to even asking
the court whether or not a continuance would be granted in this case.” It advised substitute
counsel that they “take on the role in the same condition as the prior counsel had and have
to honor those dates unless some relief was sought from the court to do otherwise.” When
7 asked by the court, substitute counsel did not specify the amount of time they sought to
prepare for trial but instead sought as much time of the Moreland thought was fair. Under
such a circumstance, the trial court was left without any clear indication of the length of the
continuance requested.
{¶ 17} Original defense counsel confirmed that he was prepared to proceed but
asked to withdraw given Moreland’s apparent financial ability to retain counsel. He advised
that he had learned of Moreland’s plan to obtain substitute counsel while listening to his
recorded phone calls from the jail on the previous day, citing “a very distinct difficulty and
difference of opinion between [him and Moreland] in regard to trial strategy.” Defense
counsel joined the request to continue.
{¶ 18} The court noted there was “nothing before the Court on the amount of money
that [Moreland] paid to the other counsel, nor where that money came from.” It indicated that
when it appointed defense counsel, Moreland was deemed indigent and “that opinion has
not changed with the Court.” The court ordered counsel to continue representation because
substitute counsel was not prepared.1 It further stated that any breakdown in communication
was “pretty suspicious a few days before trial.” The court confirmed again that defense
counsel was prepared to proceed to trial.
{¶ 19} The prosecutor then informed the court, in accordance with Marsy’s Law, that
the victim’s family sought justice and opposed any continuance. She advised that the State
opposed another continuance based on the serious nature of the case, as well as the fact
that certain witnesses were already wary about their safety. The prosecutor expressed
concern that a continuance would damage the State’s case and jeopardize its ability to retain
1. Moreland’s indigency status was not a factor in the trial court’s analysis of the motion to substitute counsel. Defense counsel retained an ethical obligation of representation to Moreland until withdrawal was permitted. See Prof.Cond.R. 1.16.
8 the cooperation of its witnesses, a couple of whom were incarcerated. When given an
opportunity to provide his input on the request to substitute counsel and continue the trial a
second time, Moreland responded, “Sir, I don’t have nothing to say.” The court then noted
that both the prosecutor and defense counsel were “experienced . . . and they know what’s
required for preparation for the trial.”
Prior Representation of the State’s Witness Fannon
{¶ 20} The parties do not dispute that Fannon was previously represented by defense
counsel and the Law Office of the Public Defender. At no time at the final pretrial, however,
was any alleged conflict regarding the prior representation brought to the court’s attention.
Still further, the trial record is utterly devoid of any reference throughout the course of the
trial regarding any conflict of interest with defense counsel and Fannon related to prior
representation.
{¶ 21} Hackney involved a blatant conflict of interest based on divergent interests and
concurrent representation that was brought to the court’s attention. In contrast, here the trial
court was without any knowledge of the alleged conflict of interest or the claim that defense
counsel had previously represented Fallon. When the court gave Moreland an opportunity
to respond with any concerns about his request to substitute counsel and continue the trial
again, concerns which might have included defense counsel’s prior representation of Fallon,
he chose to remain silent. As further discussed below, defense counsel, a skilled advocate,
thoroughly cross-examined Fannon, effectively casting doubt on his credibility. In the
absence of any awareness of a conflict, which Moreland himself characterizes in his brief as
a speculative “possibility,” no affirmative duty to inquire arose. The trial court simply could
not have been expected to inquire about an issue about which it had no knowledge. Absent
an irreconcilable conflict or a record that the trial court was aware of any “possible” conflict,
9 the record belies Moreland’s assertion that the trial court failed to make all necessary
inquiries or erred in denying the substitution of counsel.
Alleged Breakdown in Communication
{¶ 22} Although counsel asserted that there was a breakdown in communication over
trial strategy, such last-minute disagreement is not unusual and did not warrant substitution.
This is because the record reflects that Moreland’s right to the effective assistance of
counsel was never jeopardized. Defense counsel generally described a breakdown in
communication solely related to trial strategy, without providing the court with insight with
which to weigh the alleged conflict. Further, the timeliness of the motion to substitute
weighed heavily in favor of requiring substitute counsel to proceed to trial as scheduled out
of fairness to the State’s concerns and Moreland’s knowledge that another continuance
would not be granted. Numerous witnesses had been subpoenaed, Moreland had been
aware of the trial date for six months, the court properly considered the demands of its
calendar, and no compelling reason was provided for the late substitution. As the trial court
noted, considering the late date that the alleged “conflict” or dispute between defense
counsel and Moreland was reported, the merits of the untimely motion to substitute counsel
appeared more “suspicious” than legitimate, suggesting a mere change of heart. This
conclusion is supported by Moreland’s statement that he had nothing to say. Moreland did
not provide any information about any alleged breakdown in communication, any potential
conflict regarding the prior representation of Fannon, or his purported ability to retain
counsel.
{¶ 23} In the absence of good cause, an abuse of discretion is not demonstrated.
Moreland’s first assignment of error is accordingly overruled.
10 II. Ineffective Assistance of Counsel
Failure to Object to Fannon’s Testimony
{¶ 24} In his second assignment of error, Moreland argues that he was denied his
right to the effective assistance of counsel for six reasons. In his first argument, Moreland
claims that trial counsel’s performance was deficient when he failed to object to Fannon’s
testimony characterizing H.W. as a “little girl” who could have been a member of his own
family. According to Moreland, Fannon’s repeated characterizations of H.W. were not
relevant, invoked and inflamed the passions of the jury, and improperly bolstered Fannon’s
credibility. He further argues that counsel’s failure to object “is especially troubling in light of
the Montgomery County Public Defender’s office representing Fannon as recently as
December of 2021.” Moreland claims that counsel’s failure rose to the level of reversible
error. In his reply brief, he specifies that Fannon’s characterizations of H.W. “improperly
gave him credibility as a father figure for H.W., when he had no relationship with her when
she was alive.”
{¶ 25} To prevail on an ineffective assistance of counsel claim, a defendant must
prove that his attorney was ineffective under two-part analysis set forth in Strickland v.
Washington, 466 U.S. 668 (1984). First, the defendant must show that counsel’s
performance was deficient. Id. at 687. “This requires showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense.” Id.
{¶ 26} As to the first part, much deference is given to trial counsel. “[A] court must
indulge in a strong presumption that the challenged action might be considered sound trial
strategy. Thus, judicial scrutiny of counsel’s performance must be highly deferential.” State
11 v. Bird, 81 Ohio St.3d 582, 585 (1998). “A debatable decision involving trial tactics generally
does not constitute a deprivation of effective counsel.” State v. Russell, 2007-Ohio-137, ¶ 50
(2d Dist.). “Hindsight is not permitted to distort the assessment of what was reasonable in
light of counsel’s perspective at the time.” State v. Cook, 65 Ohio St.3d 516, 524-525 (1992).
{¶ 27} If the first part is met, then “prejudice” may be considered. To demonstrate
prejudice, “the defendant must prove that there exists a reasonable probability that, were it
not for counsel’s errors, the result of the trial would have been different.” State v. Bradley,
42 Ohio St.3d 136, (1989) first paragraph of the syllabus. Speculation does not prove either
part of the Strickland analysis. State v. Morgan, 2017-Ohio-7565, ¶ 53 (“speculation cannot
prove prejudice”); State v. Powell, 2012-Ohio-2577, ¶ 86 (speculative argument cannot be
a basis for finding deficient performance under an ineffective assistance of counsel claim).
A “court need not [first] determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”
Strickland at 697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, . . . that course should be followed.” Id.
{¶ 28} “[T]he decision to object or not object is within the strategic consideration of
trial counsel.” State v. Villani, 2019-Ohio-1831, ¶ 19 (12th Dist.). Put differently, the “[f]ailure
to make objections does not automatically constitute ineffective assistance of counsel . . . .”
State v. Homer, 2006-Ohio-1432, ¶ 15 (12th Dist.). “This is because ‘[o]bjections tend to
disrupt the flow of a trial and are considered technical and bothersome by a jury.’” State v.
Kaufhold, 2020-Ohio-3835, ¶ 58 (12th Dist.), quoting State v. Steele, 2005-Ohio-943, ¶ 100
(12th Dist.). See State v. Wilson, 2019-Ohio-338, ¶ 28 (12th Dist.) (noting that excessive
objections, or objections to otherwise trivial matters, can negatively impact the jury’s opinion
of the defendant).
12 {¶ 29} Fannon testified regarding the discussions he had with Moreland while they
were housed together in jail in March 2024. Fannon detailed his extensive criminal history,
and at the time of trial, he was serving a two-year prison term. Fannon stated that he had
two children, and he had been in prison “[p]retty much their whole life. They’re very bitter,
and they have a lot of bad feelings.”
{¶ 30} Fannon testified that, due to his lengthy experience behind bars, fellow
inmates sought him out for advice, including Moreland. According to Fannon, Moreland
related that, at a gas station, he saw a vehicle occupied by someone whom he had been
disputing with, followed the vehicle, and shot at it multiple times. Fannon recalled that
Moreland said that, in the vehicle, “there was a girl that was going to school” whom he shot,
and that Moreland advised him that he “didn’t give a f***” about the girl. Fannon identified
State’s Exhibit 165 as a statement he wrote “verbatim” of Moreland’s statements to him.
{¶ 31} According to Fannon, immediately upon his release from jail on bond, he
noticed a member of law enforcement crossing Second Street, stopped him, and told him
that he had information about Moreland. Fannon said that he was then put in contact with
Detective Alec Denker, to whom he provided State’s Exhibit 165. Fannon stated he did so
because “it disturbed me what happened. And I thought about that could have been my
daughter. Could have been my niece, -- my sister.”
{¶ 32} When asked how he felt about Moreland’s admissions, Fannon replied, “just a
little girl. It’s a little girl, like why? That little girl just got killed. Like I said, it could have been
my daughter, my sister . . . So it’s just a tragic situation.” He stated that he had serious
concerns about his safety for testifying, but there “was a little girl that was killed, and I mean,
if that was my daughter, my sister, my niece, I’d want the truth to be known[.] And I would
be wrong to not have told the truth.”
13 {¶ 33} When Fannon testified, the jury was already aware that H.W. was only 15
years old at the time of her murder. They had viewed her autopsy photos and learned from
the deputy coroner who performed the autopsy that her cause of death was multiple gunshot
wounds. Fannon referenced H.W.’s age twice and only in response to specific questions
testing his credibility and motive for approaching law enforcement with the information he
claimed Moreland provided to him. Moreland does not explain how Fannon’s statements
invoked and inflamed the passions of the jury, given what they had already seen and heard.
The jury may have considered any objection to Fannon’s acknowledgment of H.W.’s age
trivial based on the gravity of the charges against Moreland. As trial strategy, defense
counsel may have chosen to refrain from highlighting the victim’s age through objection. Any
suggestion that the jury perceived Fannon as a credible paternal figure is belied by his
admission that he was never a part of his own children’s lives and they resented him.
{¶ 34} As the State asserts, Fannon’s “motivation for snitching on a fellow inmate . . .
was at the heart of the jury’s determination of [his] credibility.” The transcript of Fannon’s
cross-examination reflects that defense counsel’s strategy was to thoroughly and vigorously
contest his believability and emphasize his lengthy criminal history, history of dishonesty,
and self-serving pattern of seeking “deals” with the State. While being questioned by defense
counsel, Fannon acknowledged that he had several convictions for falsification involving
lying to law enforcement and that he had pending charges when he contacted the detective
about Moreland’s admissions. He further conceded that he had offered information to
defense counsel in the past and received “rewards.” Fannon acknowledged that he falsely
told the detective that State’s Exhibit 165, his written statement, was written by Moreland
because he was nervous and did not want to incriminate himself. Fannon admitted that, after
disclosing the information about Moreland and despite being repeatedly told that the State
14 would not offer him any consideration for his testimony, he wrote to the prosecutor and
requested early judicial release because he was “very scared” for his safety. He repeatedly
acknowledged that, despite his efforts, the State had not made him any promises, nor had
it given him any consideration in his other cases in exchange for his testimony. Indulging the
strong presumption that defense counsel’s failure to object to the statements at issue was
sound trial strategy for the above reasons, we cannot conclude that, but for counsel’s alleged
errors, the result of the trial would have been different.
{¶ 35} Finally, regarding the prior representation of Fannon by the Public Defender’s
Office, as discussed above, any possible conflict of interest was not raised before the trial
court at any time. Moreland’s vague suggestion of a potential conflict fails to explain beyond
innuendo and speculation how the prior representation of Fannon affected defense
counsel’s trial strategy in light of counsel’s vigorous cross-examination of Fannon.
Ineffective assistance of counsel is not demonstrated, and this portion of Moreland’s second
assignment of error is overruled.
Failure to Object to GPS Data from the RAV4
{¶ 36} In the second portion of this assignment of error, Moreland argues that defense
counsel was ineffective for stipulating to the authenticity of GPS records from the RAV4 at
the time of the shooting. In addition to the GPS records, the parties stipulated to the
authenticity of cell phone data from the phones of Denisha Taylor, Moreland, and Byrdsong.
Moreland directs our attention to the testimony of former F.B.I. agent Kevin Horan, who
created a company called Precision Cellular Analysis and was designated as an expert in
cell phone technology. Moreland argues that Horan was “never proffered or deemed an
expert in automobile technology” and that the GPS location records should have been
retrieved and introduced by “an expert in the field of automobile electronics and data.” He
15 asserts that there was no foundation laid for how the data from the RAV4 was collected, and
the fact that Horan opined as to the location of the RAV4 “was incredibly prejudicial.”
Moreland concedes, however, that defense counsel’s stipulation to the authenticity of the
cell phone records “did not affect the outcome of the trial because Horan was able to properly
interpret the cell phone records from AT&T and T-Mobile as an expert in cellular technology.”
The State responds that Moreland overlooks that it was prepared to authenticate the GPS
records from the RAV4 in the absence of a stipulation, and that there was other evidence of
the location of the RAV4 beyond Horan’s testimony.
{¶ 37} The evidence related to GPS location, whether from the RAV4 or from the cell
phones related to the location of various individuals, including Moreland, at or near the time
of the shooting. Horan testified that his expertise extended to analyzing GPS data from
vehicles, which he described as “rolling cell phones.” He provided a peer-reviewed report to
law enforcement of his analysis. Horan stated that he obtained the RAV4’s GPS data from
the Montgomery County Sheriff’s office, and the data’s location information included the
date, time, latitude, and longitude of the vehicle. He also reviewed data from the cell phones
of Taylor, Moreland, Byrdsong, as well as a photo of the RAV4’s license plate at 7:02 a.m.
from a Flock camera license plate reader. He testified that Taylor’s phone provided GPS
data. Finally, he obtained cell phone site information from service providers.
{¶ 38} In the course of Horan’s testimony, the parties stipulated to the exhibit
containing the GPS data from the RAV4 as an authentic record kept in the ordinary course
of business by Enterprise Rent-A-Car. Horan stated that the cell phone data from the phones
of Taylor and Moreland were consistent with the GPS data from the RAV4 and Taylor’s GPS
data. He opined that the sum of the data he received revealed that Moreland, Taylor, and
the RAV4 were together at the location of the shooting and that they then travelled to Miami
16 Valley Hospital before proceeding to Flying Ace car wash locations in Moraine and
Englewood. Sometime thereafter, the vehicle travelled at a speed of approximately
110 mph.
{¶ 39} Regarding the State’s assertion that it was prepared to authenticate the GPS
data from the RAV4, its March 3, 2025 witness list included the keeper of the records for
rental contracts and car data from Enterprise Rent-A-Car, and a subpoena had been issued
to the keeper of those records, facts of which defense counsel was no doubt aware. As the
State further notes, no objection was raised to Horan’s testimony, and Moreland does not
argue that counsel was ineffective for failing to object to that testimony.
{¶ 40} Finally, as the State asserts, Detective Alec Denker of the Montgomery County
Sheriff’s Office provided additional testimony regarding the location of the RAV4. He testified
that he contacted Enterprise on the afternoon of the shooting with a search warrant for the
GPS data and obtained the data 13 minutes later. He further obtained video from a
Speedway showing the RAV4 in the lot at 6:54:42 a.m., as well as Byrdsong and H.W.
entering the convenience store at that Speedway at 6:54:45 a.m. Denker testified that the
Flock camera system is the primary license plate reader used by his office, and that a Flock
camera photo placed the RAV4 heading toward the Philadelphia Drive and Turner Road
intersection, where the shooting occurred, at 7:02:16 a.m. Based on the foregoing, Moreland
fails to meet his burden of showing that, but for the stipulation to the GPS data, there was a
reasonable probability that the RAV4 records would not have been authenticated or that the
outcome of the trial would have been different in the absence of the stipulation. Ineffective
assistance of counsel is not demonstrated, and this portion of Moreland’s second
17 Failure to Request a Clarifying Instruction on Aiding and Abetting
{¶ 41} In the third portion of his second assignment of error, Moreland argues that
defense counsel was ineffective for failing to request a clarifying instruction on aiding and
abetting. He claims that defense counsel’s theory of the case was that Taylor and another
associate of Moreland’s were the “true offenders,” and that he was at Taylor’s home until he
accompanied her, after the shooting, in the RAV4 to clean it before returning it to Enterprise.
Moreland argues that “only overt acts that took place during or before the commission of the
offense can be used to establish complicity via aiding and abetting.” He asserts that “being
an accessory after the fact is not a crime in Ohio,” and defense counsel “should have sought
clarifying instructions . . . indicating that the mere fact Moreland may have assisted after the
fact was insufficient to show complicity to murder.” Specifically, Moreland argues that
defense counsel should have requested the following instruction: “[T]he overt act of support,
assistance, encouragement, cooperation with, or advisement or incitement to the principal
must take place before or during the commission of the offense. Actions taken after the
offense is completed are relevant only to whether the defendant shared the intent of the
principal offender.” Moreland directs our attention to State v. Marshall, 2019-Ohio-1154
(9th Dist.).
{¶ 42} The trial court instructed the jury, in relevant part, as follows:
A person who is complicit with another in the commission of a criminal
offense is regarded as guilty, as if he personally performed every act . . .
constituting the offense. This is true even if he did not personally perform every
act constituting the offense or was not physically present at the time . . . the
offense was committed.
...
18 Before you can find the Defendant guilty of complicity by aiding and
abetting, you must find beyond a reasonable doubt the Defendant supported,
assisted, encouraged, cooperated with, or advised or incited the principal
offender in the commission of the offense and that Defendant shared in the
criminal intent of the principal offender.
Such intent may be inferred from the circumstances surrounding the
offense, including but not limited to, the presence, companionship and conduct
before or after the offense was committed. The mere presence of the
Defendant at the scene of the offense is not sufficient to prove, in and of itself
that Defendant was an aider or abettor.
{¶ 43} The instruction provided to the jury conforms with Ohio Jury Instructions, CR
§ 523.03(B) (Rev. Feb. 6, 2016.). In Marshall, the court provided similar instructions to those
above. The following instruction was also given: “Witnessing the crime or mere approval of
the offense, even if the Defendant had guilty knowledge of the offense, does not by itself
make the Defendant an aider or abettor.” Id. at ¶ 28.
{¶ 44} Marshall argued, however, that the trial court erred by not providing an
instruction that her “‘conduct as an accessory after the fact is not criminal, and cannot
constitute criminal conduct.’” Marshall, 2019-Ohio-1154, at ¶ 26 (9th Dist.) (quoting the
proposed instruction). The court declined to issue the instruction because “it believed that
the other instructions adequately covered the entire concept of aiding and abetting.” Id. at
¶ 27. Marshall claimed that such an instruction would have changed the result “because the
jurors would have understood that her knowledge and/or conduct, after the fact, could not
support a charge of aiding and abetting.” Id. at ¶ 26.
19 {¶ 45} Marshall found no abuse of discretion in the trial court’s refusal to give the
requested instruction. Id. at ¶ 28. It was significant to the Ninth District that the trial court
“specifically advised the jury that a guilty verdict for aiding and abetting would require more
than Marshall’s mere presence, mere witnessing, or mere approval of C.O.’s crime,” and
that “a guilty verdict had to be based on Marshall’s having ‘supported, encouraged, assisted,
cooperated with, advised, or incited’ C.O.’s conduct while sharing his criminal intent.” Id. at
¶ 28. The trial court’s instruction in Marshall was consistent with the instructions provided in
this case. Put differently, here the trial court’s instructions covered the entire concept of
aiding and abetting. Moreland’s argument that defense counsel rendered ineffective
assistance by not requesting an unnecessary jury instruction is without merit. This portion of
Moreland’s second assignment of error is overruled.
Failure to Object to Testimony of a Prior Dispute between Moreland and Byrdsong
{¶ 46} Moreland next argues that trial counsel was ineffective for failing to object to
Byrdsong’s testimony regarding an “irrelevant” and “incredibly prejudicial” video of a dispute
between Byrdsong, D’Arko Red, and Moreland in September 2023. He claims that the State
“used the specious argument between Moreland and Red as motive evidence” for him to
shoot at Byrdsong.
{¶ 47} Byrdsong testified that on the date of the 2023 dispute, he brought his cousin
downtown to obtain an ID. Byrdsong waited for his cousin in a white Impala on Third Street,
which was also occupied by Red and a woman, and Byrdsong saw Moreland walking in their
direction. Byrdsong identified a September 2023 video of him, Red, and Moreland from his
phone that the woman accompanying them in the Impala recorded. According to Byrdsong,
upon seeing Moreland, Red stated that he intended to fight Moreland, and Byrdsong got out
20 of the car with Red. An altercation ensued. Afterwards, Moreland fled, and Byrdsong and
Red returned to the Impala.
{¶ 48} As the State asserts, the primary issue at trial was the identity of the shooter
in the RAV4. Evid.R. 402 states that “[a]ll relevant evidence is admissible” and that
“[e]vidence which is not relevant is not admissible.” Relevant evidence is defined as
“evidence having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the
evidence.” Evid. R. 401. “There can be no question that evidence of motive in murder cases
is always relevant and material.” State v. Lancaster, 167 Ohio St. 391, 397 (1958). “[T]he
failure to object to admissible evidence does not establish ineffective assistance of counsel.”
State v. Carson, 2012-Ohio-4501, ¶ 28 (10th Dist.), citing State v. Tyler, 2006-Ohio-6896,
¶ 40 (10th Dist.).
{¶ 49} The video suggested that based on the dispute from just two months before
H.W.’s death, Moreland had a retaliatory motive against Byrdsong, whom he had seen in a
white Impala. This was the same kind of vehicle that Byrdsong was driving when H.W. was
shot, satisfying the criteria of relevance. Moreland fails to demonstrate prejudice by showing
a reasonable probability that, but for the alleged error, the trial result would have been
different given the overwhelming evidence of his guilt. This portion of Moreland’s second
Failure to Object to Evidence of Prior Shooting
{¶ 50} Fifthly, Moreland asserts that trial counsel was ineffective for failing to object
to evidence of a shooting in 2021. Deputy Sherri Jackson of the Montgomery County
Sheriff’s Office testified that she was previously employed at the Trotwood Police
Department. She stated that while so employed on February 7, 2021, there were multiple
21 reports of shots fired from a bluish-gray Toyota RAV4 in Trotwood near a Golden Corral,
“with multiple people hanging out the window, shooting at another vehicle.” She testified that
Moreland reported to police that he, his girlfriend, and their four children were the targets of
the shooting. Police later located the vehicle, occupied by Red and Keonte Brown, who was
also known as “Tutu,” but Moreland “never cooperated further with any charges.” Moreland
argues that Brown was never involved in this case, and “counsel should have objected to
the description of the incident as involving firearms, as it [was] unduly prejudicial to
Moreland” by suggesting he previously had been involved in gang violence.
{¶ 51} As the State asserts, Fannon testified that Moreland told him that he had “a
beef with a guy named Tutu.” Fannon stated he was acquainted with Tutu, having previously
served time in prison with him, and Moreland told him that Tutu had shot at him and his
daughter when they were leaving the Golden Corral. The evidence established an ongoing
feud between Moreland and Red, and Moreland associated Red with the white Impala,
supporting a motive. There was no evidence that Moreland used a weapon while being shot
at near the Golden Corral. In other words, he was a victim of the incident, belying his
assertion that he was prejudiced by the fact that firearms were involved. Even if we assume
that counsel’s failure to object to testimony regarding Brown’s involvement fell below an
objective standard of reasonableness, prejudice is not demonstrated given the
overwhelming evidence of Moreland’s guilt in shooting H.W. The fifth portion of the
Failure to Raise a Batson Challenge
{¶ 52} Finally, in the sixth portion of his second assignment of error, Moreland argues
that defense counsel was ineffective for failing to raise a Batson objection when the State
exercised its first peremptory challenge on Juror 2, an African American female. Moreland
22 notes that the State’s remaining three challenges were to female jurors, and while he
concedes that it “is difficult to show prejudice on [a] record where no Batson challenge is
made,” he claims that “the State’s pattern of striking female jurors and using its first
peremptory challenge on the only individual identified as African American on the record”
demanded a Batson challenge on the basis of race and gender. The State responds that
Moreland cannot show that he was prejudiced by defense counsel’s failure to object because
the record is underdeveloped.
{¶ 53} In Batson v. Kentucky, 476 U.S. 79 (1986), “the United States Supreme Court
held that the Equal Protection Clause forbids the State from exercising a peremptory
challenge to excuse a juror solely because of that juror’s race.” State v. Lewis, 2011-Ohio-
1411, ¶ 75 (2d Dist.), citing State v. Murphy, 2001-Ohio-112 (applying Batson). The Court
extended the prohibition against race-based peremptory challenges in Batson to prevent
peremptory strikes based on gender. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).
{¶ 54} “The Supreme Court has set forth a three-step inquiry when the State’s
peremptory challenge has been challenged under Batson.” Lewis at ¶ 76. “First, the
defendant must set forth a prima facie case of discrimination.” Id. To do so, “‘the defendant
must point to facts and other relevant circumstances that are sufficient to raise an inference
that the prosecutor used its peremptory challenge specifically to exclude the prospective
juror on account of his race.’” Id., quoting State v. Carver, 2008-Ohio-4631, ¶ 48 (2d Dist.),
citing Batson, 476 U.S. at 95. “If that occurs, the prosecutor must state a race-neutral
explanation for striking the juror in question.” Id. If the prosecutor does so, “the trial court
must determine whether the defendant met his burden of proving intentional discrimination
or whether the prosecutor’s explanation was a pretext.” Id. “‘We do not presume prejudice
from a trial counsel’s failure to raise a Batson challenge, and . . . without an adequate record,
23 we cannot properly consider on direct appeal a claim of ineffective assistance of counsel for
a trial counsel’s failure to raise a Batson objection.’” Id. at ¶ 143, quoting State v. Burks,
2008-Ohio-2463, ¶ 57 (10th Dist.).
{¶ 55} Here, at sidebar during voir dire, the court brought to the parties’ attention
that he had been watching Juror No. 2 for “quite a while” and that she had been sleeping,
with her head “falling completely down.” The prosecutor acknowledged her awareness of
the issue. Defense counsel stated, “[E]ither counsel or the Court needs to question her,
make sure it’s nothing physical or just because it is very obvious.” The court asked Juror
No. 2 to approach and indicated that she appeared to be sleeping. She stated that she was
not used to being up so early and acknowledged that she slept “[j]ust a little.” But she also
said that she did not miss any questions and “should be fine.” Voir dire continued.
Subsequently, the State challenged Juror No. 2 for cause, asserting that “even after we
called her up to the sidebar, she continued to struggle with staying awake.” Defense counsel
objected, stating, “I’m not sure that rises to the level of cause.” The court overruled the
challenge for cause based upon Juror No. 2’s representation she could remain alert.
{¶ 56} The State exercised its first peremptory challenge to Juror No. 2. It then
challenged female Juror No. 5, who was replaced with a female juror. The State exercised
its third peremptory challenge to Juror No. 5’s replacement, who was replaced by another
female juror. Finally, the State exercised its fourth peremptory challenge to female Juror No.
7, who was also replaced by a female juror. The final twelve jurors consisted of ten women
and two men.
{¶ 57} The record supports a conclusion that the State’s initial peremptory challenge
had a race and gender-neutral basis—Juror No. 2’s struggle to stay awake. Defense counsel
expressly shared the concerns of the State and the court, which could explain his failure to
24 raise a Batson challenge after the State exercised a peremptory challenge. As the State
asserts, however, in the absence of any objections, the State was not required to articulate
a race or gender-neutral explanation for its peremptory challenges, and we cannot
definitively determine whether such a basis existed. See Lewis, 2011-Ohio-1411, at ¶ 143
(2d Dist.) (in the absence of a Batson objection and an explanation, “from this record, we
cannot determine whether the State had race-neutral explanations for the peremptory
challenge and, if so, whether the trial court could have properly accepted such explanations
as credible and not a pretext for racial discrimination.”). Since Moreland has failed to
establish any race- or gender-based prejudice, ineffective assistance of counsel is not
demonstrated. This portion of Moreland’s second assignment of error is overruled. Having
overruled all Moreland’s arguments under his second assignment of error, the entirety of the
III. Granting the Motion for Joinder
{¶ 58} In his third assignment of error, Moreland argues that the trial court erred when
it granted the State’s motion for joinder of his failure to comply and murder cases. This is so,
he claims, because the State “improperly used a failure to comply . . . seven hours after the
shooting to show consciousness of guilt.” Moreland directs our attention to the rebuttal
closing argument of the State in which the prosecutor suggested that Moreland “knew darn
well why [law enforcement was] looking for him. Which is why he runs red lights.” According
to Moreland, there was “a strong risk that the evidence of the failure to comply alone could
be used to show Moreland was guilty of the felonious assault and murder.” The State
responds that evidence of the failure to comply offense “would be admissible at a separate
trial for H.W.’s murder, and the evidence pertaining to each offense was simple and direct.”
25 {¶ 59} “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, 2007-Ohio-
6584, ¶ 33 (2d Dist.). “Even if offenses are properly joined pursuant to Crim.R. 8(A), a
defendant may move to sever the charges pursuant to Crim.R. 14.” Id. at ¶ 37. Crim.R. 14
requires the trial court to order separate trials “[i]f it appears that a defendant . . . is prejudiced
by a joinder of offenses.”
{¶ 60} “A defendant claiming error in the trial court’s refusal to allow separate trials of
multiple charges under Crim.R. 14 has the burden of affirmatively showing that his rights
were prejudiced; he must furnish the trial court with sufficient information so that it can weigh
the considerations favoring joinder against the defendant’s right to a fair trial, and he must
demonstrate that the court abused its discretion in refusing to separate the charges for trial.”
State v. Torres, 66 Ohio St.2d 340 (1981), syllabus. “When a defendant claims that he was
prejudiced by the joinder of multiple offenses, a court must determine (1) whether evidence
of the other crimes would be admissible even if the counts were severed, and (2) if not,
whether the evidence of each crime is simple and distinct.” State v. Schaim, 65 Ohio St.3d
51, 59 (1992), citing State v. Hamblin, 37 Ohio St.3d 153, 158-159 (1988). “If the evidence
of other crimes would be admissible at separate trials, any ‘prejudice that might result from
the jury’s hearing the evidence of the other crime in a joint trial would be no different from
that possible in separate trials,’ and a court need not inquire further.” Id., quoting Drew v.
United States, 331 F.2d 85, 90 (D.C.Cir. 1964).
{¶ 61} “[E]vidence is ‘simple and direct,’ where (1) proof of each offense is ‘separate
and distinct’ or could be ‘readily separated’; (2) the jury is unlikely to be confused; and (3) ‘the
evidence of each crime is uncomplicated.’” State v. Kocevar, 2023-Ohio-1513, ¶ 22
26 (2d Dist.). “Furthermore, the simple and direct test ‘focuses on whether the trier of fact is
likely to consider “evidence of one [offense] as corroborative of the other . . . ”’” Id. at ¶ 23,
quoting State v. Wiles, 59 Ohio St.3d 71, 77 (1991), quoting Dunaway v. United States, 205
F.2d 23, 27 (D.C.Cir. 1953). “Joinder may be prejudicial when the offenses are unrelated
and the evidence as to each is very weak, . . . but it is otherwise when the evidence is direct
and uncomplicated and can reasonably be separated as to each offense . . . .” Torres at
343-344; see also State v. Clinton, 2017-Ohio-9423, ¶ 52 (a “jury is capable of segregating
the proof of multiple charges when . . . the evidence of each crime is uncomplicated.”) “Key
issues in determining if joinder is improper are the complexity of the evidence and whether
the jurors are able to separate the proof required for the different offenses instead of
combining the evidence and convicting upon all offenses.” State v. Shockey, 1999 WL
961368 (2d Dist. June 25, 1999).
{¶ 62} In State v. Hill, 2002-Ohio-4585, ¶ 8 (8th Dist.), although the defendant
opposed the State’s motion for joinder, the court found that the defendant’s failure to renew
his opposition at the close of the evidence “constitutes a waiver of any previous objection to
the joinder of these offenses for trial.” Here, it is not clear from the record whether defense
counsel renewed his opposition to joinder. After defense counsel moved for a judgment of
acquittal, which the court denied, he was asked by the court if he had any other motions,
and the transcript reflects the following response: “(Indiscernible) to our resting, and we
would renew it when we rest.” The court responded, “And the record would be clear that I
would allow you to do that. . . . I’m ordering that you have done it.”
{¶ 63} Even if defense counsel renewed his objection, the record does not support a
conclusion that Moreland was prejudiced. As the trial court noted in its judgment entry
sustaining the motion for joinder, the evidence and witnesses in each case overlapped
27 significantly such that joinder served judicial economy. The same vehicle was used in the
same day in both offenses, and as the State asserts, “the tracking of Moreland and the
vehicle by way of cell phone records, GPS data, and Flock cameras would be admissible at
separate trials in both cases” if the counts were severed. That evidence tied Moreland to the
RAV4, and for each offense, the RAV4’s location and the identity of the driver or occupant
were relevant. The evidence in each case was not complex, the timeline of events leading
up to each indictment was easily understandable, and reasonable jurors could separate the
proof required for the offenses in each case. In the absence of prejudice, Moreland’s third
Conclusion
{¶ 64} Moreland’s Sixth Amendment right to counsel was not violated, he has not
demonstrated ineffective assistance of counsel, and the trial court did not err in refusing to
allow a separate trial on Moreland’s failure to comply offense. Having overruled Moreland’s
assignments of error, the judgments of the trial court are affirmed.
.............
TUCKER, J., and EPLEY, J., concur.