State v. Henson , 2021 Ohio 2496 ( 2021 )

[Cite as State v. Henson, 2021-Ohio-2496.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200182
TRIAL NO. B-0700777
Plaintiff-Appellee, :
vs. : O P I N I O N.
DERRYCK HENSON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 21, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Derryck Henson, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
HENDON, Judge.
{¶1} Defendant-appellant Derryck Henson presents on appeal a single
assignment of error challenging the Hamilton County Common Pleas Court’s
judgment denying his Crim.R. 33(B) motion for leave to file a motion for a new trial.
We affirm the court’s judgment.
{¶2} In 2008, Henson was convicted of murder in the fatal shooting of
Richard Muhammad after Muhammad had refused Phillip Harris’s demand that he
pay for drugs delivered by Harris to the hotel room of Angel and Darrell Ferguson.
When interviewed by the police, Angel Ferguson identified Henson as the shooter.
In his interview with the police, Henson admitted to police that he had been in the
room when Muhammad was shot and had fled from the premises with Harris, but he
insisted that Harris had been the shooter. Because Angel Ferguson feared for her
safety, local law enforcement helped her enter a witness-protection program and
assisted Darrell Ferguson in avoiding potential problems with his parole. And by
agreement of the parties, Angel Ferguson’s testimony was taken at a deposition and
presented at the trials of Harris and Henson.
{¶3} Henson unsuccessfully challenged his murder conviction in a
presentence motion for a new trial, on direct appeal, in a 2009 postconviction petition,
and in his 2019 motion for leave to file a motion for a new trial. See State v. Henson, 1st
Dist. Hamilton No. C-080261 (Aug. 26, 2009), appeal not accepted, 124 Ohio St.3d
1418, 2009-Ohio-6816, 919 N.E.2d 216; State v. Henson, 1st Dist. Hamilton No. C-
100526 (Oct. 26, 2011).
{¶4} In his 2019 motion, Henson sought leave under Crim.R. 33(B) to file
out of time a Crim.R. 33(A)(6) motion for new trial based on newly discovered
evidence. The motion for leave was supported by the 2009 affidavit of retained
counsel who had represented Henson until jury selection and the 2018 affidavit of
David Sparks, who had driven Harris and Henson from the scene of the shooting. In
his affidavit, counsel stated that when Angel Ferguson was deposed, he would have
cross-examined her concerning measures taken to protect her safety, efforts made to
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OHIO FIRST DISTRICT COURT OF APPEALS
preserve Darrell Ferguson’s parole status, or financial support provided to the
Fergusons, if he had been aware that any such “benefit or compensation” had been
provided by the police. In his affidavit, David Sparks averred that he had long known
that Harris had been wrongfully convicted of a murder that “he simply had nothing
to do with,” and that he made his affidavit because his “conscience” no longer
allowed him to “go along with a lie, for the sake of a deal” that he had been offered in
the case.
{¶5} A new trial may be granted under Crim.R. 33(A)(6) on the ground that
“new evidence material to the defense is discovered, which the defendant could not
with reasonable diligence have discovered and produced at trial.” A Crim.R. 33(A)(6)
motion for a new trial on the ground of newly discovered evidence must be filed
either within 120 days of the return of the verdict or within seven days after leave to
file a new-trial motion has been granted. Crim.R. 33(B).
{¶6} A court may grant leave under Crim.R. 33(B) to file a Crim.R. 33(A)(6)
motion for a new trial out of time only upon “clear and convincing proof” that the
defendant had, within 120 days of the return of the verdict, been “unavoidably
prevented” from discovering, and from presenting in a new-trial motion, the
evidence upon which the proposed new-trial motion depends. State v. Schiebel, 55
Ohio St.3d 71, 74, 564 N.E.2d 54 (1990); State v. Carusone, 1st Dist. Hamilton No. C-
130003, 2013-Ohio-5034, ¶ 32. A claim of unavoidable prevention must be
supported with evidence demonstrating that, within 120 days of the return of the
verdict, the movant did not know that the proposed ground for a new trial existed
and could not, in the exercise of reasonable diligence, have learned of its existence.
State v. Mathis, 134 Ohio App.3d 77, 79, 730 N.E.2d 410 (1st Dist.1999), rev’d in part
on other grounds, State v. Condon, 157 Ohio App.3d 26, 2004-Ohio-2031, 808
N.E.2d 912, ¶ 20 (1st Dist.). The court’s decision concerning leave may not be
overturned on appeal if it was supported by some competent and credible evidence.
Schiebel at 74; Mathis at 79.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} Crim.R. 33(B), by its terms, contemplates a hearing. The nature of
that hearing is discretionary with the court and depends on the circumstances. The
court must conduct an evidentiary hearing if the evidence offered in support of the
motion demonstrates unavoidable prevention. See Carusone at ¶ 4 and 33; State v.
Gaines, 1st Dist. Hamilton No. C-090097, 2010-Ohio-895, ¶ 4.
{¶8} Henson did not support his motion for leave with an affidavit attesting
to the circumstances of securing the affidavits provided by counsel and Sparks. Nor
does the record demonstrate that Henson had been unavoidably prevented from
learning of the evidence contained in those affidavits. To the contrary, Henson’s
counsel had conveyed in his opening statement the essence of the evidence contained
in Sparks’s affidavit. And counsel had based Henson’s presentence motion for a new
trial on the state’s alleged failure to disclose in discovery any benefits or
compensation provided to the Fergusons before Angel Ferguson was deposed. Thus,
neither the motion for leave, with its supporting evidentiary material, nor the record
before us can be said to provide clear and convincing proof that Henson had been
unavoidably prevented from timely discovering and presenting in a new-trial motion
the evidence upon which his new-trial motion depended.
{¶9} We, therefore, hold that the common pleas court did not abuse its
discretion in declining to conduct an evidentiary hearing and did not err in denying
the motion. Accordingly, we overrule the assignment of error and affirm the
judgment of the court below.
Judgment affirmed.
MYERS, P.J., and WINKLER, J., concur.
SYLVIA S. HENDON, retired, from the First Appellate District, sitting by assignment.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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