State v. Parker , 178 Ohio App. 3d 574 ( 2008 )

{¶ 27} I do not agree that defendant Parker failed to demonstrate by clear and convincing evidence that he was unavoidably prevented from filing his motion for a new trial within 14 days after the jury's verdict. Crim. R. 33(B).

{¶ 28} In State v. Smith (March 27, 1998), Miami App. No. 97CA46, 1998 WL 404458, an incarcerated defendant filed a motion for new trial out of time, based on newly discovered evidence, which he contended that the state had concealed from him. The trial court denied the motion. We affirmed, finding that the defendant failed to offer evidence of the alleged concealment by the state and, further, that the evidence could have been obtained by the defendant for purposes of trial. Concerning the defendant's additional claim that his incarceration had prevented his timely filing of his motion, we observed that "the fact of his incarceration, without more, does not amount to clear and convincing proof that he was unavoidably prevented from discovering the evidence within the time limitations of Crim. R. 33(B)." Id. at 5.

{¶ 29} In the present case, there is "more"; specifically, defendant's contention that Amber Wilt is also imprisoned, and that he did not receive her affidavit until June 12, 2007, long after the 14-day period in Crim. R. 33(B) had expired. Nevertheless, I agree that the trial court did not abuse its discretion when it denied defendant's motion, for two reasons.

{¶ 30} First, a defendant who moves for a new trial on the basis of newly discovered evidence has the burden to show that the new evidence does not merely impeach or contradict the former evidence offered at trial. State v.Petro (1947), 148 Ohio St. 505, 36 O.O. 165, 76 N.E.2d 370. Amber Wilt's statements in her affidavit merely impeach or contradict her trial testimony.

{¶ 31} Second, the newly discovered evidence must disclose a strong probability that it will change the result if a new trial is granted. Petro. In our opinion in the prior appeal, State v. Parker, Montgomery App. No. 21599, 2007-Ohio-1512, 2007 WL 949483, ¶ 17, we wrote:

{¶ 32} "Wilt had little memory of the events of December 20-21, 2005. She testified that she was in the bedroom of Martine's apartment with others when she heard Parker ask where she was. Parker came in and said, `I'm sorry I have to do this' and hit her in the head. Wilt's next memory was of waking in the utility closet. Parker came into the closet at one point, laughed, and kicked her in the leg. Although the utility closet door did not have a lock, Wilt did not attempt to leave. She explained that she was scared and `I didn't know what would happen if I got up and tried to leave.' She next remembered waking in the hospital."

{¶ 33} Other witnesses testified that they saw defendant Parker and another man drag Wilt from the apartment, saw Parker kick Wilt repeatedly, and then saw Parker kick Wilt in the head after he and the other man carried Wilt to another apartment and dropped her on the floor. Id. at ¶ 9. Wilt suffered extensive injuries to her head and face. Id. at ¶ 13. Wilt was unconscious when police found her, and she was hospitalized for three weeks. Id. at ¶ 16.

{¶ 34} As against the evidence of other witnesses presented at trial, Wilt's recantation of her testimony that it was not defendant Parker but his accomplice who first struck Wilt on the head offers no strong probability that it would cause defendant to not be convicted of felonious assault and kidnapping were a new trial to be ordered. Petro. Further, Wilt's contention that defendant Parker is "innocent of the crimes against me" is too conclusory to be admissible and need not be considered as new evidence for purposes of Crim. R. 33. Therefore, the trial court did not abuse its discretion when it denied defendant's motion for leave to file a motion for new trial out of time.