[Cite as State v. McCoy, 2015-Ohio-5195.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. 15-CA-58 CHARLES MCCOY
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 04CR380
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 8, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT CHARLES MCCOY, PRO SE Licking County Prosecutor #488128 20 S. Second Street, Fourth Floor c/o London Correctional Institution Newark, Ohio 43055 P.O. Box 69 London, Ohio 43140 Licking County, Case No. 15-CA-58 2
Hoffman, J.
{¶1} Defendant-appellant Charles McCoy appeals the July 8, 2015 Judgment
Entry entered by the Licking County Court of Common Pleas. Plaintiff-appellee is the
state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} In 2005, Appellant was convicted of attempted murder, attempted robbery,
and kidnapping. Appellant filed a direct appeal from his conviction in State v. McCoy,
Licking 05-CA-29, 2006-Ohio-56.
{¶3} On March 4, 2013, Appellant filed a Motion Requesting Corrective
Sentencing in accordance with R.C. 2941.25. The trial court denied the motion via
Judgment Entry entered July 10, 2013. This Court affirmed the trial court's July 10,
2013 Judgment Entry on appeal in State v. McCoy, Licking App. No. 13 CA 63, 2013-
Ohio-5007.
{¶4} On May 28, 2015, pursuant to Criminal Rule 33, Appellant filed a motion
for new trial. The trial court denied the motion via Judgment Entry entered July 8, 2015.
{¶5} Appellant appeals, assigning as error:
{¶6} “I. THE LICKING CO. COURT OF COMMON PLEAS FAILED TO
RECOGNIZE DEFENDANT’S NEWLY DISCOVERED EVIDENCE OF A FALSIFIED
VOLUNTARY STATEMENT FOR POLICE BY AN EYE-WITNESS, HEATHER A.
BONIFANT, IN THE FORM OF HER OWN ADMISSION TO HER CIVIL ATTORNEY
DOCUMENTED IN HER ANSWER IN MCCOY V. MAY, (2014) PRODUCED AND
ATTACHED TO HIS INITIAL MOTION REQUESTING A NEW TRIAL UNDER CRIM.
R.33(A) AND (B) AND MADE AVAILABLE TO THE COURT FOR ITS NON-ORAL Licking County, Case No. 15-CA-58 3
HEARING. THIS CONSTITUTED GROUNDS UNDER CRIM. R. 33 (A) (1),
SUPPORTED BY §R.C. 2945.79 (A), (B), (F) FOR A NEW TRIAL. THE DEFENDANT
HAD ALSO SUPPLIED THE COURT WITH COPIES OF BONIFANT’S FALSIFIED
VOLUNTARY STATEMENT FOR POLICE AND HIS ACTUAL JUDGMENT ENTRY
FROM HIS SENTENCING SO TO SHOW THE MANIFEST CONTRADICTIONS AND
DISCREPANCIES. SEE, MCCOY V. BONIFANT, #15CA8 (REMANDED BY THE 5TH
DISTRICT COURT). CURRENTLY PENDING BACK BEFORE THE COURT OF
COMMON PLEAS, #14CV1083.
{¶7} “II. (A): THE LICKING CO. COURT OF COMMON PLEAS FAILED TO
RECOGNIZE THE DEFENDANT’S NEWLY DISCOVERED EVIDENCE OF A
DOCUMENTED ATTESTING TO PROSECUTOR MISCONDUCT BY THE
PROSECUTING ATTORNEY KENNETH W. OSWALT DURING A §309.05
DEPOSITION HEARING IN 2014 WHERE HE DEPOSED BOTH MARCIA J. MCCOY
AND PATRICIA J. MALONE. THIS WAS AN ADMISSION OF COMPLETE
PROSECUTOR MISCONDUCT BY HIM PERSONALLY THAT HAD BEEN CAPTURED
AND DOCUMENTED BY THE STENOGRAPHER, PRODUCED AND ATTACHED TO
DEFENDANT’S INITIAL MOTION REQUESTING A NEW TRIAL UNDER CRIM. R. 33
(A) AND (B), SUPPORTED BY §2945.79 (A), (B), (F).
{¶8} “II. (B): THE LICKING CO. COURT OF COMMON PLEAS FAILED TO
RECOGNIZE DEFENDANT’S NEWLY DISCOVERED EVIDENCE EXPOSING, NOT
JUST THE IRREGULARITIES OF USING A COMPETENCY REPORT AGAINST A
DEFENDANT AT TRIAL, BUT THE ILLEGALITIES OF IT AS WELL. THIS
MISCONDUCT VIOLATED THE OHIO STATE STATUTE §R.C. 2945.371 (J). THIS IS Licking County, Case No. 15-CA-58 4
APART OF THE TRIAL TRANSCRIPTS. THIS HAD OCCURRED DURING KENNETH
W. OSWALT’S LINE OF QUESTIONING WITH THE DEFENDANT WHILE HE WAS
ON THE STAND TO DEFEND HIMSELF FROM THE OVER INDICTMENT BY THE
STATE.
I. and II.
{¶9} Appellant's assigned errors raise common and interrelated issues;
therefore, we will address the arguments together.
{¶10} Ohio Criminal Rule 33 governs motions for new trials, and reads,
(A) Grounds
A new trial may be granted on motion of the defendant for any of
the following causes affecting materially his substantial rights:
(1) Irregularity in the proceedings, or in any order or ruling of the
court, or abuse of discretion by the court, because of which the defendant
was prevented from having a fair trial;
(2) Misconduct of the jury, prosecuting attorney, or the witnesses
for the state;
(3) Accident or surprise which ordinary prudence could not have
guarded against;
(4) That the verdict is not sustained by sufficient evidence or is
contrary to law. If the evidence shows the defendant is not guilty of the
degree of crime for which he was convicted, but guilty of a lesser degree
thereof, or of a lesser crime included therein, the court may modify the Licking County, Case No. 15-CA-58 5
verdict or finding accordingly, without granting or ordering a new trial, and
shall pass sentence on such verdict or finding as modified;
(5) Error of law occurring at the trial;
(6) When new evidence material to the defense is discovered which
the defendant could not with reasonable diligence have discovered and
produced at the trial. When a motion for a new trial is made upon the
ground of newly discovered evidence, the defendant must produce at the
hearing on the motion, in support thereof, the affidavits of the witnesses by
whom such evidence is expected to be given, and if time is required by the
defendant to procure such affidavits, the court may postpone the hearing
of the motion for such length of time as is reasonable under all the
circumstances of the case. The prosecuting attorney may produce
affidavits or other evidence to impeach the affidavits of such witnesses.
(B) Motion for new trial; form, time
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. Licking County, Case No. 15-CA-58 6
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 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.
{¶11} The trial court's July 8, 2014 Judgment Entry found Appellant's motion for
new trial untimely as it was not filed within fourteen days of the verdict, or in the case of
newly discovered evidence, within 120 days.
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[Cite as State v. McCoy, 2015-Ohio-5195.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. 15-CA-58 CHARLES MCCOY
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 04CR380
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 8, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT CHARLES MCCOY, PRO SE Licking County Prosecutor #488128 20 S. Second Street, Fourth Floor c/o London Correctional Institution Newark, Ohio 43055 P.O. Box 69 London, Ohio 43140 Licking County, Case No. 15-CA-58 2
Hoffman, J.
{¶1} Defendant-appellant Charles McCoy appeals the July 8, 2015 Judgment
Entry entered by the Licking County Court of Common Pleas. Plaintiff-appellee is the
state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} In 2005, Appellant was convicted of attempted murder, attempted robbery,
and kidnapping. Appellant filed a direct appeal from his conviction in State v. McCoy,
Licking 05-CA-29, 2006-Ohio-56.
{¶3} On March 4, 2013, Appellant filed a Motion Requesting Corrective
Sentencing in accordance with R.C. 2941.25. The trial court denied the motion via
Judgment Entry entered July 10, 2013. This Court affirmed the trial court's July 10,
2013 Judgment Entry on appeal in State v. McCoy, Licking App. No. 13 CA 63, 2013-
Ohio-5007.
{¶4} On May 28, 2015, pursuant to Criminal Rule 33, Appellant filed a motion
for new trial. The trial court denied the motion via Judgment Entry entered July 8, 2015.
{¶5} Appellant appeals, assigning as error:
{¶6} “I. THE LICKING CO. COURT OF COMMON PLEAS FAILED TO
RECOGNIZE DEFENDANT’S NEWLY DISCOVERED EVIDENCE OF A FALSIFIED
VOLUNTARY STATEMENT FOR POLICE BY AN EYE-WITNESS, HEATHER A.
BONIFANT, IN THE FORM OF HER OWN ADMISSION TO HER CIVIL ATTORNEY
DOCUMENTED IN HER ANSWER IN MCCOY V. MAY, (2014) PRODUCED AND
ATTACHED TO HIS INITIAL MOTION REQUESTING A NEW TRIAL UNDER CRIM.
R.33(A) AND (B) AND MADE AVAILABLE TO THE COURT FOR ITS NON-ORAL Licking County, Case No. 15-CA-58 3
HEARING. THIS CONSTITUTED GROUNDS UNDER CRIM. R. 33 (A) (1),
SUPPORTED BY §R.C. 2945.79 (A), (B), (F) FOR A NEW TRIAL. THE DEFENDANT
HAD ALSO SUPPLIED THE COURT WITH COPIES OF BONIFANT’S FALSIFIED
VOLUNTARY STATEMENT FOR POLICE AND HIS ACTUAL JUDGMENT ENTRY
FROM HIS SENTENCING SO TO SHOW THE MANIFEST CONTRADICTIONS AND
DISCREPANCIES. SEE, MCCOY V. BONIFANT, #15CA8 (REMANDED BY THE 5TH
DISTRICT COURT). CURRENTLY PENDING BACK BEFORE THE COURT OF
COMMON PLEAS, #14CV1083.
{¶7} “II. (A): THE LICKING CO. COURT OF COMMON PLEAS FAILED TO
RECOGNIZE THE DEFENDANT’S NEWLY DISCOVERED EVIDENCE OF A
DOCUMENTED ATTESTING TO PROSECUTOR MISCONDUCT BY THE
PROSECUTING ATTORNEY KENNETH W. OSWALT DURING A §309.05
DEPOSITION HEARING IN 2014 WHERE HE DEPOSED BOTH MARCIA J. MCCOY
AND PATRICIA J. MALONE. THIS WAS AN ADMISSION OF COMPLETE
PROSECUTOR MISCONDUCT BY HIM PERSONALLY THAT HAD BEEN CAPTURED
AND DOCUMENTED BY THE STENOGRAPHER, PRODUCED AND ATTACHED TO
DEFENDANT’S INITIAL MOTION REQUESTING A NEW TRIAL UNDER CRIM. R. 33
(A) AND (B), SUPPORTED BY §2945.79 (A), (B), (F).
{¶8} “II. (B): THE LICKING CO. COURT OF COMMON PLEAS FAILED TO
RECOGNIZE DEFENDANT’S NEWLY DISCOVERED EVIDENCE EXPOSING, NOT
JUST THE IRREGULARITIES OF USING A COMPETENCY REPORT AGAINST A
DEFENDANT AT TRIAL, BUT THE ILLEGALITIES OF IT AS WELL. THIS
MISCONDUCT VIOLATED THE OHIO STATE STATUTE §R.C. 2945.371 (J). THIS IS Licking County, Case No. 15-CA-58 4
APART OF THE TRIAL TRANSCRIPTS. THIS HAD OCCURRED DURING KENNETH
W. OSWALT’S LINE OF QUESTIONING WITH THE DEFENDANT WHILE HE WAS
ON THE STAND TO DEFEND HIMSELF FROM THE OVER INDICTMENT BY THE
STATE.
I. and II.
{¶9} Appellant's assigned errors raise common and interrelated issues;
therefore, we will address the arguments together.
{¶10} Ohio Criminal Rule 33 governs motions for new trials, and reads,
(A) Grounds
A new trial may be granted on motion of the defendant for any of
the following causes affecting materially his substantial rights:
(1) Irregularity in the proceedings, or in any order or ruling of the
court, or abuse of discretion by the court, because of which the defendant
was prevented from having a fair trial;
(2) Misconduct of the jury, prosecuting attorney, or the witnesses
for the state;
(3) Accident or surprise which ordinary prudence could not have
guarded against;
(4) That the verdict is not sustained by sufficient evidence or is
contrary to law. If the evidence shows the defendant is not guilty of the
degree of crime for which he was convicted, but guilty of a lesser degree
thereof, or of a lesser crime included therein, the court may modify the Licking County, Case No. 15-CA-58 5
verdict or finding accordingly, without granting or ordering a new trial, and
shall pass sentence on such verdict or finding as modified;
(5) Error of law occurring at the trial;
(6) When new evidence material to the defense is discovered which
the defendant could not with reasonable diligence have discovered and
produced at the trial. When a motion for a new trial is made upon the
ground of newly discovered evidence, the defendant must produce at the
hearing on the motion, in support thereof, the affidavits of the witnesses by
whom such evidence is expected to be given, and if time is required by the
defendant to procure such affidavits, the court may postpone the hearing
of the motion for such length of time as is reasonable under all the
circumstances of the case. The prosecuting attorney may produce
affidavits or other evidence to impeach the affidavits of such witnesses.
(B) Motion for new trial; form, time
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. Licking County, Case No. 15-CA-58 6
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 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.
{¶11} The trial court's July 8, 2014 Judgment Entry found Appellant's motion for
new trial untimely as it was not filed within fourteen days of the verdict, or in the case of
newly discovered evidence, within 120 days. Second, the trial court concluded Appellant
had not been unavoidably prevented from timely discovering the asserted “newly
discovered” evidence and filing the motion. Third, the trial court found the motion for
new trial was procedurally deficient in that it did not include any affidavits in support.
{¶12} By virtue of the two-issue rule, a decision which is supported by one or
more alternate grounds properly submitted is invulnerable to attack on one issue only.
Hampel v. Food Ingredients Specialties, Inc. (2000), 89 Ohio St.3d 169, 185, 729
N.E.2d 726, quoting H.E. Culbertson Co. v. Warden (1931), 123 Ohio St. 297, 303, 175
N.E. 205. We find the trial court properly denied Appellant's motion for new trial as
Appellant did not demonstrate he was unavoidably prevented from discovering any
alleged new evidence. Accordingly, because the trial court properly denied the motion
for new trial as being untimely. Appellant's assignments of error are overruled. Licking County, Case No. 15-CA-58 7
{¶13} The July 8, 2014 Judgment Entry of the Licking County Court of Common
Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur