State v. Draper ( 2011 )

[Cite as State v. Draper, 2011-Ohio-1007.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 10 JE 6
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
THEODIS DRAPER, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 07CR101.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Thomas Strauss
Prosecuting Attorney
16001 State Route Seven
Steubenville, Ohio 43952
For Defendant-Appellant: Theodis Draper, Pro se
#534-297
Pickaway Correctional Institution
P.O. Box 209
Orient, Ohio 43146
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: February 28, 2011
VUKOVICH, J.
¶{1} Defendant-appellant Theodis Draper appeals the decision of the
Jefferson County Common Pleas Court which denied his motion for a new trial. He
sets forth various arguments as to why he believes the trial court erred. We cannot
find any merit with those arguments for the following reasons: some were not raised in
the motion filed below; all of his arguments either were or could have been raised in
his direct appeal; and, his motion was untimely. Accordingly, the judgment of the trial
court is affirmed as more fully discussed below.
STATEMENT OF THE CASE
¶{2} On July 4, 2007 at 3:07 a.m., a police officer was following a vehicle
driven by Raymont Nichols down Route 7. The car traveled across marked lanes at
seventy miles per hour in a fifty-five mile per hour zone. The officer effected a traffic
stop. Appellant, who was the passenger, appeared nervous and kept putting his
hands in his pockets. The driver spontaneously stated, “There’s no dope in here.” (Tr.
205). When the officer sought to confirm this claim, appellant declared, “That’s for me
to know and you to find out.” (Tr. 206).
¶{3} The officer then summoned a canine unit to the scene. A small rock of
crack cocaine was found in the cargo hold floor, and a plastic bag containing a
baseball-sized, nearly fifty-eight-gram rock of crack cocaine was discovered within a
canister filled with a potpourri-like substance. (Tr. 303, 307). Nichols told the officer
that the drugs belonged to appellant. At the police station, Nichols explained that
appellant asked him for a ride to Steubenville to deliver drugs. He said that he
witnessed appellant cut the top of the canister in order to fit the crack inside. (Tr. 233).
¶{4} A week later, Nichols gave a signed statement, which was written out by
a dispatcher because Nichols stated that he could not write. (Tr. 227-228). In this
statement, Nichols claimed that he did not know about the drugs until he asked
appellant at a gas station and appellant told him the drugs were in the back cargo area
in a canister. (Tr. 231).
¶{5} Both appellant and Nichols were charged with drug possession. The
cases were severed, and Nichols was convicted of drug possession first. Then, a jury
found appellant guilty of drug possession in violation of R.C. 2925.11(A), a first degree
felony, which involves an amount more than or equal to twenty-five grams but less
than 100 grams. On October 4, 2007, appellant was sentenced to eight years in
prison.
¶{6} Appellant filed a timely appeal. He raised sufficiency and weight of the
evidence. He argued that he did not possess the drugs and did not have knowledge
drugs were present in the vehicle. He characterized the testimony of Nichols as a
recantation of much of the statements attributed to him by the police because Nichols
would only admit at trial that he found out about the drugs at the gas station; he then
invoked the Fifth Amendment when asked how he learned about the drugs. On March
6, 2009, this court overruled appellant’s arguments and affirmed his conviction. State
v. Draper, 7th Dist. No. 07JE45, 2009-Ohio-1023.
¶{7} On February 5, 2010, appellant filed a motion for a new trial under
Crim.R. 33 and asked that his indictment be vacated. He argued that he did not have
control over the vehicle and thus the element of possession did not exist. He noted
that Nichols made three different statements and claimed that the arresting officer
gave false testimony. He also claimed that his attorney rendered ineffective
assistance of counsel. On February 9, 2010, the trial court overruled appellant’s
motion. Appellant filed the within timely appeal.
CRIM.R. 33: MOTION FOR NEW TRIAL
¶{8} “A new trial may be granted on motion of the defendant for any of the
following causes affecting materially his substantial rights:
¶{9} “(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;
¶{10} “(2) Misconduct of the jury, prosecuting attorney, or the witnesses for the
state;
¶{11} “(3) Accident or surprise which ordinary prudence could not have
guarded against;
¶{12} “(4) That the verdict is not sustained by sufficient evidence or is contrary
to law. * * *
¶{13} “(5) Error of law occurring at the trial;
¶{14} “(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. * * *.” Crim.R. 33(A).
¶{15} A motion for a new trial, except one based upon newly discovered
evidence, must be filed within fourteen days after the verdict was rendered unless
clear and convincing proof shows that the defendant was unavoidably prevented from
filing his motion. Crim.R. 33(B). A motion for a new trial based upon newly discovered
evidence must be filed within one hundred twenty days of the rendering of the verdict
unless clear and convincing proof shows that the defendant was unavoidably
prevented from discovery of the evidence.
ASSIGNMENT OF ERROR
¶{16} Appellant’s sole assignment of error provides:
¶{17} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
VIOLATION OF THE 8TH AND 14TH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, RESULTING FROM THE TRIAL COURT’S ORDER THAT DENIED
APPELLANT’S MOTION FOR A NEW TRIAL, BASED ON CLAIMS OF ‘ACTUAL
INNOCENCE,’ COUPLED WITH OTHER CONSTITUTIONAL ERRORS.”
¶{18} On appeal, appellant iterates that he did not have custody, control, or
knowledge of the crack cocaine and that he thus did not possess drugs. He claims
that the police lied about what Nichols stated. He then claims that there was no
corroborating evidence for the testimony of his co-defendant. He raises ineffective
assistance of counsel, only generally stating that counsel should have presented
evidence. He also vaguely refers to inflammatory remarks by the prosecutor.
¶{19} The latter two arguments present no specific allegations. They are too
general and vague to actually address.
¶{20} Appellant’s argument about police perjury deals with misconduct of a
witness for the state under Crim.R. 33(A)(2). However, that allegation must be
sustained by affidavit pursuant to Crim.R. 33(C). Appellant did not do so in his new
trial motion, and thus, the trial court could properly overrule such a claim on this basis.
¶{21} Moreover, the only specific arguments he even touched upon in his
motion for a new trial involved whether he actually possessed the drugs and the fact
that Nichols changed his statement. Arguments raised for the first time on appeal
cannot be addressed. See State v. Anderson, 6th Dist. No. L-07-1351, 2007-Ohio-
5791, ¶27, citing State v. Gegia, 157 Ohio App.3d 112, 2004-Ohio-2124, ¶26. Thus,
the arguments raised here that were not raised below are not properly before this
court.
¶{22} (We also note that appellant raised some arguments below that he does
not now raise on appeal. The state addresses some of these arguments on appeal;
however, this is unnecessary.)
¶{23} As for the main possession argument he raised below and on appeal,
this argument regarding possession is a legal argument that has been addressed in
our prior opinion where we found sufficient evidence that he possessed the drugs.
Draper, 7th Dist. No. 07JE45 at ¶13-23. We also held that finding appellant
possessed the drugs was not contrary to the manifest weight of the evidence. Id. at
¶24-33. This is the law of the case. See, generally, Nolan v. Nolan (1984), 11 Ohio
St.3d 1, 3. The other arguments were not presented in the direct appeal, but could
and should have been.
¶{24} Finally, appellant’s new trial motion was filed on February 5, 2010, more
than two years after the verdict was rendered against him. All of the arguments were
available to him at the time of the verdict. Plus, appellant makes no allegations as to
why he could not file a timely motion. Thus, there did not exist clear and convincing
evidence that appellant was unavoidably prevented from filing a motion or from
discovering evidence at an earlier date. Appellant’s motion is therefore untimely. See
Crim.R. 33(B).
¶{25} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.