State v. Larkins

2018 Ohio 679

• Court: Ohio Court of Appeals
• Decided: February 20, 2018
• Docket: 16 JE 0032
• Status: Published

Opinion

[Cite as State v. Larkins, 2018-Ohio-679.] STATE OF OHIO, JEFFERSON COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 16 JE 0032 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION AND ) JUDGMENT ENTRY FRANK LEE LARKINS, JR. ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Appellant’s Application for Reconsideration Pursuant to App.R. 26(A)(1).

JUDGMENT: Application Denied.

APPEARANCES:

For Plaintiff-Appellee: Atty. Jane M. Hanlin Prosecuting Attorney Atty. Frank J. Bruzzese Assistant Prosecuting Attorney Jefferson County Justice Center 16001 State Route 7 Steubenville, Ohio 43952

For Defendant-Appellant: Frank Lee Larkins, Jr., Pro se #A683-521 Belmont Correctional Institution 68518 Bannock Rd. P.O. Box 540 St. Clairsville, Ohio 43950

JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb Dated: February 20, 2018 [Cite as State v. Larkins, 2018-Ohio-679.] PER CURIAM.

{¶1} Appellant Frank L. Larkins, Jr. requests reconsideration of our Opinion

in State v. Larkins, 7th Dist. No. 16 JE 0032, 2017-Ohio-9369, pursuant to App.R.

26(A). Appellant argues that this Court did not consider the trial court’s failure to

provide a curative instruction following witness testimony involving a prior bad act.

As Appellant's motion is untimely and fails to raise an issue either not considered or

not fully considered by this Court, the application is denied.

{¶2} On August 5, 2015, Appellant was indicted on one count of rape, a

felony of the first degree in violation of R.C. 2907.02(A)(1)(b), (B). Appellant initially

confessed to engaging in consensual sexual conduct with the twelve-year-old victim

but later claimed that his confession was false. At trial, a videotaped interview and

an audio recording of a phone call with his father where he confessed were both

played for the jury and admitted into evidence.

{¶3} On May 19, 2016, the jury found Appellant guilty on the sole charge of

the indictment. The trial court sentenced Appellant to life in prison without parole

eligibility for ten years. Appellant is also required by law to report as a tier three sex

offender. We affirmed Appellant’s conviction and sentence in Larkins, supra.

The test generally applied upon the filing of a motion for reconsideration

in the court of appeals is whether the motion calls to the attention of the

court an obvious error in its decision, or raises an issue for

consideration that was either not considered at all or was not fully

considered by the court when it should have been. -2-

Columbus v. Hodge, 37 Ohio App.3d 68, 523 N.E.2d 515 (10th Dist.1987), paragraph

one of the syllabus.

{¶4} App.R. 26(A)(1)(a) states, in relevant part: “[a]pplication for

reconsideration of any cause or motion submitted on appeal shall be made in writing

no later than ten days after the clerk has both mailed to the parties the judgment or

order in question and made a note on the docket of the mailing as required by App.

R. 30(A).”

{¶5} Appellant’s judgment was mailed to his appellate counsel and a note

relevant to this mailing was placed on the docket on December 19, 2017. To be

timely, an application would have been filed no later than December 29, 2017.

However, Appellant did not file his “motion” until January 2, 2018, four days after the

deadline.

{¶6} Pursuant to App.R. 14(B), an “[e]nlargement of time to file an

application for reconsideration or for en banc consideration pursuant to App. R. 26(A)

shall not be granted except on a showing of extraordinary circumstances.” Appellant

contends that his counsel did not mail him a copy of the judgment entry until

December 27, 2017. Appellant has not provided a copy of a mail log or other

evidence supporting this contention. However, even if Appellant’s application could

be considered timely, he fails to raise an issue that was either not considered at all or

was not fully considered by this Court.

{¶7} Appellant complains about our analysis regarding a witness who

testified that Appellant had admitted to engaging in sexual conduct with several -3-

underage victims. Appellant correctly states that when a witness innocently blurts out

testimony regarding a prior bad act, the remedy is a curative instruction. See State v.

Howard-Ross, 7th Dist. No. 13 MA 168, 2015-Ohio-4810, 44 N.E.3d 304. Appellant

argues that the trial court did not provide such an instruction after a witness in his trial

referred to a prior bad act. Contrary to Appellant’s argument, as stated in our

Opinion, the trial court did provide a curative instruction:

Okay. The Jury is instructed to disregard the witness’ last response as

nonresponsive. You will not consider it for any purpose. It is to be not

considered for any purposes as -- as if you never heard that statement.

It is to be struck. Do you understand that? Okay. All right.

Larkins at ¶ 15.

{¶8} Appellant contends that we erred when we held that he did not suffer

prejudice as a result of the witness’ testimony. It is apparent that Appellant merely

disagrees with the logic used and the conclusion reached by this Court.

“Reconsideration motions are rarely considered when the movant simply disagrees

with the logic used and conclusions reached by an appellate court.” State v. Himes,

7th Dist. No. 08 MA 146, 2010-Ohio-332, ¶ 4, citing Victory White Metal Co. v. Motel

Syst., 7th Dist. No. 04 MA 245, 2005-Ohio-3828; Hampton v. Ahmed, 7th Dist. No. 02

BE 66, 2005-Ohio-1766.

{¶9} In order to prevail on an application for reconsideration, an appellant

must demonstrate an obvious error in our decision or that an issue was raised that

was either not dealt with or was not fully considered. Mere disagreement with this -4-

Court's logic and conclusions does not support a motion for reconsideration.

Accordingly, Appellant’s application for reconsideration is denied.

Waite, J., concurs.

Donofrio, J., concurs.

Robb, P.J., concurs.