State v. Black

2023 Ohio 1730

• Court: Ohio Court of Appeals
• Decided: May 23, 2023
• Docket: 2023 CA 00006
• Status: Published

Opinion

[Cite as State v. Black, 2023-Ohio-1730.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Andrew J. King, J. -vs- Case No. 2023 CA 00006 ROGER S. BLACK, JR.

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of Common Pleas, Case No. 15-CR-705

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 23, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JENNY WELLS ROGER S. BLACK, JR. #729370 Licking County Prosecuting Attorney Ross Correctional Institution Licking County, Ohio P.O. Box 7010 Chillicothe, Ohio 45601 KENNETH W. OSWALT Assistant Prosecuting Attorney 20 S. Second Street, 4th Floor Newark, Ohio 43055 Licking County, Case No. 2023 CA 0006 2

Hoffman, P.J. {¶1} Defendant-Appellant, Roger S. Black, Jr., appeals the judgment entered by

the Licking County Common Pleas Court denying his motion for leave to file a motion for

new trial. Plaintiff-Appellee is the state of Ohio.

STATEMENT OF THE CASE1

{¶2} On September 16, 2016, Appellant was convicted following jury trial of two

counts of rape in violation of R.C. 2907.02 and two counts of kidnapping with sexual

motivation in violation of R.C. 2905.01. Appellant was sentenced to an aggregate term of

twenty-six years to life in prison. Appellant's convictions were affirmed on appeal. State

v. Black, 5th Dist. Licking No. 16-CA-90, 2017 WL 2964192 (July 11, 2017).

{¶3} Appellant filed a delayed motion for new trial on February 23, 2018, alleging

the trial court erred in failing to order a mistrial. The trial court overruled the motion,

finding the issues were barred by res judicata, as they could have been raised on direct

appeal. Judgment Entry, March 13, 2018. On May 14, 2018, Appellant filed a second

motion for new trial on the basis of the discovery of new evidence, specifically an affidavit

1 A rendition of the facts is unnecessary to our resolution of the issues raised on appeal. Licking County, Case No. 2023 CA 0006 3

of a witness to rebut a statement made by the prosecutor in closing argument. The trial

court overruled the motion, finding Appellant had not demonstrated why, with reasonable

diligence, the witness’s testimony could not have been discovered and presented at trial.

Judgment Entry, September 19, 2019.

{¶4} On June 13, 2022, Appellant filed a motion for leave to file a third motion for

new trial pursuant to Crim. R. 33, and simultaneously filed a motion for new trial based

on the discovery of new scientific evidence. Appellant based his motion on testimony in

an unrelated case, reported in State v. Winston, 10th Dist. Franklin No. 16AP-664, 2018-

Ohio-2525. The trial court overruled the motion for leave to file a motion for new trial,

finding Appellant had not demonstrated he was unavoidably prevented from filing his

motion in a timely fashion, and further he had not demonstrated the relevance of the

evidence in Winston to his case. It is from the December 15, 2022 judgment of the trial

court Appellant prosecutes his appeal, assigning as error:

I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

DEFENDANT'S JUNE 13, 2022 NEW TRIAL MOTION, FINDING THAT Licking County, Case No. 2023 CA 0006 4

DEFENDANT FAILED TO SHOW THAT HE WAS UNAVOIDABLY

PREVENTED FROM THE DISCOVERY OF THE RELIED UPON

EVIDENCE.

II. TRIAL COURT ABUSED ITS DISCRETION BY CONSIDERING

THE MERITS OF THE EVIDENCE PRESENTED BY DEFENDANT FOR

REVIEW BEFORE GRANTING LEAVE FOR DEFENDANT TO FILE.

III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

STATED DEFENDANT'S NEWLY DISCOVERED EVIDENCE WAS NOT

RELEVANT.

I.

{¶5} In his first assignment of error, Appellant argues the trial court abused its

discretion in denying his June 13, 2022 motion for leave to file a new trial motion based

on newly discovered evidence.

{¶6} A motion for leave to file a motion for new trial is addressed to the sound

discretion of the trial court, and may not be overturned absent an abuse of discretion. Licking County, Case No. 2023 CA 0006 5

State v. Townsend, 10th Dist. Franklin No. 08AP-371, 2008-Ohio-6518. In order to find

an abuse of discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶7} Crim.R. 33(B) governs a motion for new trial:

Application for a new trial shall be made by motion which, except for

the cause of newly discovered evidence, shall be filed within fourteen days

after the verdict was rendered, or the decision of the court where a trial by

jury has been waived, unless it is made to appear by clear and convincing

proof that the defendant was unavoidably prevented from filing his motion

for a new trial, in which case the motion shall be filed within seven days from

the order of the court finding that the defendant was unavoidably prevented

from filing such motion within the time provided herein.

Motions for new trial on account of newly discovered evidence shall

be filed within one hundred twenty days after the day upon which the verdict Licking County, Case No. 2023 CA 0006 6

was rendered, or the decision of the court where trial by jury has been

waived. If it is made to appear by clear and convincing proof that the

defendant was unavoidably prevented from the discovery of the evidence

upon which he must rely, such motion shall be filed within seven days from

an order of the court finding that he was unavoidably prevented from

discovering the evidence within the one hundred twenty day period.

{¶8} Pursuant to this Rule, a defendant filing a motion for leave to file a motion

for new trial on the basis of newly discovered evidence is required to establish only that

he was unavoidably prevented from discovering the evidence on which he seeks to base

his motion, and unless and until a trial court grants a defendant leave to file a motion for

a new trial, the merits of the new-trial claim are not before the court. State v. Hatton, 169

Ohio St.3d 446, 2022-Ohio-3991, 205 N.E.3d 513. Appellant sought leave to file his

motion for new trial well over five years after the verdict was rendered, beyond either time

requirement under Crim.R. 33(B). If Appellant’s motion was in fact based on newly

discovered evidence, he would have to show by clear and convincing evidence he was Licking County, Case No. 2023 CA 0006 7

unavoidably prevented from discovering the evidence in a timely fashion. However, the

trial court based its denial of leave on the more general standard Appellant had not

demonstrated he was unavoidably prevented from filing his motion in a timely fashion.

{¶9} While Appellant’s motion purported to be based on newly discovered

evidence, his motion does not set forth newly discovered evidence in his case. Instead,

he points to evidence admitted in an unrelated case in Franklin County, and attempts to

demonstrate how such evidence, if available and admitted in his own case, might have

changed the result. However, information gleaned from case law is not evidence. See.,

e.g., State v. Mills, 73 Ohio App.3d 27, 33, 595 N.E.2d 1045, 1049 (2nd Dist. Montgomery

1991) (The “newly discovered evidence” presented was not evidence at all, but was an

opinion rendered by the Ohio Supreme Court). Appellant’s affidavit filed in support of his

motion for new trial concedes he attempted to obtain an affidavit from the witness who

testified in Winston, or another qualified expert from BCI, but was unable to obtain such

affidavit. Sworn affidavit of Roger Black, July 1, 2022. Therefore, Appellant did not

present any evidence to the court in support of his claim of newly discovered evidence,

and in fact conceded he was unable to obtain the newly discovered evidence he claims Licking County, Case No. 2023 CA 0006 8

would have changed the result of his trial. Because Appellant’s motion for new trial was

not in fact based on newly discovered evidence, we find the trial court did not err in failing

to make a specific finding he was unavoidably prevented from discovering the evidence

within the one hundred twenty day period, and instead reviewed the motion for leave

under the general standard of whether he was unavoidably prevented from filing his

motion. Appellant’s motion for leave did not establish by clear and convincing evidence

he was unavoidably prevented from filing his motion in a timely fashion, but instead was

filed years after the 2018 decision in Winston, and the trial court did not err in overruling

the motion on this basis.

{¶10} Further, assuming arguendo Appellant’s motion could be construed as

being based on newly discovered “evidence,” Appellant made no showing he was

unavoidably prevented from discovering the evidence within one hundred twenty days of

his trial. The opinion in Winston reflects the trial took place from July 25-29, 2016.

Appellant’s trial took place in September 13-16, 2016. Therefore, the type of scientific

evidence used in the Winston case existed at the time of Appellant’s trial. While Appellant

may not have been aware of the existence of this type of evidence until reading the Licking County, Case No. 2023 CA 0006 9

Winston case years later, his motion does not demonstrate he was unavoidably prevented

from discovering this type of scientific evidence at the time of his trial.

{¶11} We find the trial court did not abuse its discretion in overruling Appellant’s

motion to leave to file a motion for new trial.

{¶12} The first assignment of error is overruled.

II., III.

{¶13} Appellant’s second and third assignments of error address the trial court’s

discussion of the merits of his new trial motion. Having found the trial court did not err in

overruling his motion for leave to file a motion for new trial, we find the second and third

assignments of error to be moot. Licking County, Case No. 2023 CA 0006 10

{¶14} The second and third assignments of error are overruled. The judgment of

the Licking County Common Pleas Court is affirmed.

By: Hoffman, P.J. Wise, J. concurs and King, J. dissents Licking County, Case No. 2023 CA 0006 11

King, J. dissents,

{¶ 15} I respectfully dissent from the majority's opinion. Based on the record and

arguments before us, I agree with the majority and the trial court that appellant would

likely lose on the merits. But in State v. Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991,

205 N.E.3d 513, ¶ 30, the Supreme Court of Ohio stated that such a conclusion would be

premature:

When a defendant seeks leave to file a motion for a new trial under

Crim.R. 33(B), the trial court may not consider the merits of the proposed

motion for a new trial until after it grants the motion for leave. State v.

Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, ¶ 41, citing

State v. Brown, 8th Dist. Cuyahoga No. 95253, 2011-Ohio-1080, 2011 WL

828382, ¶ 14. The sole question before the trial court when considering

whether to grant leave is whether the defendant has established by clear

and convincing proof that he was unavoidably prevented from discovering

the evidence on which he seeks to base the motion for a new trial.

{¶ 16} Because appellant based his motion for new trial on newly discovered

evidence, in determining whether or not to grant leave to file the motion, the trial court

was required under Crim.R. 33(B) and Hatton to determine if appellant was "unavoidably

prevented from the discovery of the evidence upon which he must rely." Instead, the trial

court considered appellant's motion under the more general requirement of was he

"unavoidably prevented from filing his motion for a new trial." The trial court has not made Licking County, Case No. 2023 CA 0006 12

a determination as to whether appellant was "unavoidably prevented from the discovery

of the evidence upon which he must rely" under the newly discovered evidence standard.

{¶ 17} Moreover, I disagree with the majority that the merits of the underlying claim

are an appropriate matter to opine on at this step. In Hatton, the Supreme Court was

explicit that Crim.R. 33(B) is a two-step procedure. Id. at ¶ 32. The Supreme Court stated

the merits are only considered at the second step: "Unless and until a trial court grants a

defendant leave to file a motion for a new trial, the merits of the new-trial claim are not

before the court." Id. at ¶ 33. Thus, I would conclude that we should remand the matter

to the trial court for consideration of the motion for leave consistent with Hatton.

Accordingly, I dissent.