State v. DeVaughns , 110 N.E.3d 922 ( 2018 )

[Cite as State v. DeVaughns, 2018-Ohio-1421.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27727
:
v. : Trial Court Case No. 2006-CR-843
:
CHRISTOPHER A. DEVAUGHNS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 13th day of April, 2018.
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MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CHRISTOPHER A. DEVAUGHNS, Inmate No. 525-249, London Correctional Institution,
P.O. Box 69, London, Ohio 43140
Defendant-Appellant-Pro Se
.............
WELBAUM, P.J.
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{¶ 1} Defendant-appellant, Christopher A. DeVaughns, appeals pro se from the
judgment of the Montgomery County Court of Common Pleas overruling his Crim.R. 33
motion for new trial. For the reasons outlined below, the judgment of the trial court will
be affirmed.
Facts and Course of Proceedings
{¶ 2} In 2006, DeVaughns was tried before a jury and found guilty of felonious
assault in violation of R.C. 2903.11(A)(1) and kidnapping in violation of R.C.
2905.01(A)(3). The charges stemmed from allegations that DeVaughns had beaten the
mother of his child, Lynelle Moore, causing her life-threatening injuries, and confined
Moore against her will. After the jury rendered its verdict, the trial court sentenced
DeVaughns to eight years in prison for the felonious assault and ten years in prison for
the kidnapping. The trial court ordered the sentences to be served consecutively to each
other and consecutively to a sentence imposed in another case.
{¶ 3} DeVaughns subsequently appealed from his conviction and sentence. On
appeal, we rejected the manifest weight and allied offense claims raised by DeVaughns
in his appeal, but held that the trial court erred in failing to afford DeVaughns an
opportunity to speak on his own behalf at sentencing. Accordingly, we reversed the trial
court’s sentencing decision and remanded the matter for resentencing. State v.
DeVaughns, 2d Dist. Montgomery No. 21654, 2007-Ohio-3455 (“DeVaughns I”).
{¶ 4} On remand, the trial court gave DeVaughns the opportunity to address the
court personally at his resentencing hearing. Following DeVaughns’ remarks, the trial
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court imposed the same sentence that it had imposed at the original sentencing hearing.
DeVaughns thereafter appealed from the sentence imposed by the trial court on remand,
which we affirmed. State v. DeVaughns, 2d Dist. Montgomery No. 22349, 2008-Ohio-
4010 (“DeVaughns II”).
{¶ 5} In August 2009, DeVaughns filed a pro se motion for new trial based on newly
discovered evidence. The alleged new evidence consisted of attendance sheets from a
daycare center and a letter from a daycare employee, both of which purportedly
demonstrated that DeVaughns had picked up his daughter during the time it was alleged
that he kidnapped Moore. The trial court denied DeVaughns’ motions without a hearing.
On appeal, we held that the record “clearly reveals that this evidence was not new in
relation to the issues of fact that were tried. The substance of [the employee’s] letter
was admitted into evidence at Defendant’s trial as a stipulation.” Accordingly, we
affirmed the denial of DeVaughns’ motion for a new trial. State v. DeVaughns, 2d Dist.
Montgomery No. 23720, 2011-Ohio-125 (“DeVaughns III”).
{¶ 6} In 2011, DeVaughns filed several other pro se motions, including, but not
limited to, a “Motion for Correction [of] Trial Transcript” and a “Motion for Unavoidably
Prevented Crim.R. 33(B),” which the trial court construed as a Crim.R. 33 motion for new
trial. The trial court overruled both motions and DeVaughns separately appealed those
decisions. We dismissed DeVaughns’ appeal from the trial court’s decision overruling
the motion to correct the trial transcript on grounds that the issue of an incomplete trial
transcript could have been raised in the pending appeal from his Crim.R. 33 motion for
new trial. Decision and Final Judgment Entry (Sept. 12, 2011), 2d Dist. Montgomery
App. Case No. 24700.
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{¶ 7} In the appeal from the trial court’s decision overruling DeVaughns’ Crim.R.
33 motion for new trial, we found that all but one of DeVaughns’ assignments of error
were either barred by res judicata or were not properly before this court. The single
assignment of error we reviewed claimed that DeVaughns’ trial counsel was ineffective in
failing to present exculpatory evidence related to his purported alibi. We, however,
affirmed the trial court’s decision overruling DeVaughns’ motion for new trial on grounds
that the motion was untimely and that DeVaughns was not unavoidably prevented from
discovering the evidence on which his ineffective assistance claim was based. State v.
DeVaughns, 2d Dist. Montgomery No. 24631, 2012-Ohio-5791 (“DeVaughns IV”).
{¶ 8} In April 2015, DeVaughns filed a petition for post-conviction relief pursuant
to R.C. 2953.21 and R.C. 2953.23, along with several other motions to supplement his
petition. The petition and motions included claims of ineffective assistance of counsel
and prosecutorial misconduct. Specifically, DeVaughns argued that his trial counsel
failed to properly object to the admissibility of certain blood evidence and that the
prosecutor offered into evidence and discussed during closing argument inadmissible
blood evidence. The trial court denied DeVaughns’ petition on grounds that it was
untimely and that his allegations “do not address complaints outside the record that could
not be attacked on direct appeal.” On June 30, 2015, DeVaughns appealed that ruling,
but then voluntarily dismissed the appeal. Decision and Final Judgment Entry (Feb. 19,
2016), 2d Dist. Montgomery App. Case No. 26745.
{¶ 9} On February 18, 2016, DeVaughns filed another petition for post-conviction
relief, wherein he asked the trial court to set aside his conviction. Specifically,
DeVaughns argued that there was evidence of blood on various items in his apartment,
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but the record did not identify the identity of the person whose blood was found, as no
DNA testing had been requested on the blood samples. DeVaughns further indicated
that certain testimony about the blood was “indiscernible” in the trial transcript and that
the “identity and/or identities of the State’s (DNA) evidence used to convict [him]” was
outside the trial court’s record and unavailable. DeVaughns also claimed that the failure
to identify the source of the blood deprived him of his right to confront witnesses, that his
trial counsel was ineffective in failing to challenge the blood evidence, and that these
circumstances warranted a new trial.
{¶ 10} Approximately three weeks later, on March 7, 2016, DeVaughns filed a
“motion” under R.C. 2953.21 and R.C. 2953.23, arguing that the State had failed to
respond to his petition for post-conviction relief, and therefore, had conceded the facts in
his petition. In response, the State filed an opposing memorandum arguing that the
claims in DeVaughns’ petition were untimely and barred by the doctrine of res judicata.
The trial court agreed with the State. Therefore, on March 30, 2016, the trial court issued
a decision overruling DeVaughns’ petition for post-conviction relief1 on the basis of res
judicata. Not satisfied with the trial court’s decision, DeVaughns once again appealed to
this court.
{¶ 11} On appeal, we found that DeVaughns’ petition was successive and
untimely, and that he failed to establish that he was unavoidably prevented from
discovering the facts upon which his claim was based. Specifically, we found that
1 Although the trial court’s judgment entry references DeVaughns’ motion filed on March
7, 2016, and not the petition for post-conviction relief filed on February 18, 2016, based
on the substance of the trial court’s judgment, it is apparent that the court ruled on the
petition for post-conviction relief, regardless of the stated date. See State v. DeVaughns,
2017-Ohio-475, 84 N.E.3d 332, ¶ 11, fn. 1 (2d Dist.).
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DeVaughns knew, from being present at his trial, that the blood evidence was offered at
trial and that it was not DNA tested. We also found that DeVaughns was aware of his
trial counsel’s statements to the trial court concerning the admissibility of the blood
evidence, and therefore, he could have raised his counsel’s alleged ineffectiveness in his
direct appeal. Accordingly, we affirmed the judgment of the trial court overruling
DeVaughns’ petition for post-conviction relief. State v. DeVaughns, 2017-Ohio-475, 84
N.E.3d 332 (2d Dist.) (“DeVaughns V”).2
{¶ 12} Two days before our decision was released in DeVaughns V, on February
8, 2017, DeVaughns filed yet another pro se Crim.R. 33 motion for new trial. The motion
raised the same argument that was raised in his prior petition for post-conviction relief;
namely, that the State’s purported failure to identify the source of the blood evidence used
at trial deprived him of his right to confront his accusers. The State filed an opposing
memorandum in response arguing that DeVaughns’ claim was barred by res judicata.
DeVaughns thereafter filed a reply to the State’s memorandum, followed by two additional
pro se motions filed on June 21, 2017, and July 5, 2017, which requested the trial court
to allow him to depose the source of the blood evidence and to “exculpate testimony”
regarding the blood evidence.
{¶ 13} On August 15, 2017, the trial court issued a decision overruling all three of
DeVaughns’ pending motions. In doing so, the trial court analyzed the motions under
Crim.R. 33 and found that they were untimely and not filed on the basis of newly
discovered evidence. The trial court also determined that the motions were barred by
2In that decision we also affirmed the trial court’s judgment overruling DeVaughns’
App.R.9(C) motion for a statement of the evidence that was filed on July 13, 2015.
DeVaughns V, 2017-Ohio-475, 84 N.E.3d 332 at ¶ 13-20.
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the doctrine of res judicata. DeVaughns now appeals from the trial court’s decision,
raising two assignments of error for review.
First Assignment of Error
{¶ 14} Although difficult to discern, we interpret DeVaughns’ First Assignment of
Error as generally challenging the trial court’s decision to overrule his motion for new trial
pursuant to Crim.R. 33. After a thorough review of the record, we find no error in the trial
court’s decision.
{¶ 15} “A trial court’s decision on a Crim.R. 33 motion for a new trial will not be
reversed absent an abuse of discretion.” State v. Gillispie, 2d Dist. Montgomery No.
24456, 2012-Ohio-1656, ¶ 31, citing State v. Schiebel, 55 Ohio St. 3d 71, 564 N.E.2d 54
(1990), paragraph one of the syllabus; State v. Matthews, 81 Ohio St. 3d 375, 378, 691
N.E.2d 1041 (1998). “ ‘Abuse of discretion’ has been defined as an attitude that is
unreasonable, arbitrary or unconscionable.” (Citation omitted.) AAAA Enterprises, Inc.
v. River Place Community Urban Redevelopment Corp., 50 Ohio St. 3d 157, 161, 553
N.E.2d 597 (1990).
{¶ 16} Pursuant to Crim.R. 33(A):
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
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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. * * *;
(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. * * *
{¶ 17} Except for motions based on newly discovered evidence under Crim.R.
33(A)(6), a motion for new trial “shall be filed within fourteen days after the verdict was
rendered * * * 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 * * * [.]” Crim.R. 33(B).
In contrast, a motion for new trial based on newly discovered evidence “shall be filed
within one hundred twenty days after the day upon which the verdict was rendered * *
* [.]” Id.
{¶ 18} In order to file a motion for new trial after the expiration of the time periods
specified in Crim.R. 33(B), a defendant must first seek leave of the trial court to file a
delayed motion. State v. Lanier, 2d Dist. Clark No. 2009 CA 84, 2010-Ohio-2921, ¶ 15,
citing State v. Warwick, 2d Dist. Champaign No. 01CA33, 2002 WL 1585663, *2 (July 19,
2002); State v. Parker, 178 Ohio App. 3d 574, 2008-Ohio-5178, 899 N.E.2d 183, ¶ 16 (2d
Dist.). “To obtain leave, defendant must demonstrate by clear and convincing evidence
that he or she was unavoidably prevented from timely filing the motion for a new trial or
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discovering the new evidence within the time period provided by Crim.R. 33(B).”
(Citations omitted.) Warwick at *2. “A defendant is entitled to a hearing on a motion for
leave to seek a new trial if he submits documents that on their face support his claim of
being unavoidably prevented from meeting Crim.R. 33’s time requirement.” State v.
Hiler, 2d Dist. Montgomery No. 27364, 2017-Ohio-7636, ¶ 12, citing Lanier at ¶ 16.
{¶ 19} “ ‘[A] party is unavoidably prevented from filing a motion for new trial if the
party had no knowledge of the existence of the ground supporting the motion for new trial
and could not have learned of the existence of that ground within the time prescribed for
filing the motion for new trial in the exercise of reasonable diligence.’ ” Parker at ¶ 16,
quoting State v. Walden, 19 Ohio App. 3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984).
“[A] defendant fails to demonstrate that he or she was unavoidably prevented from
discovering new evidence when he would have discovered that information earlier had
he or she exercised due diligence and some effort.” State v. Lenoir, 2d Dist. Montgomery
No. 26846, 2016-Ohio-4981, ¶ 24, citing State v. Metcalf, 2d Dist. Montgomery No. 26101,
2015-Ohio-3507, ¶ 11, citing Warwick.
{¶ 20} In this case, DeVaughns filed his motion for new trial pursuant to Crim.R.
33(A)(1), (4), and (5). DeVaughns’ motion is therefore based on an irregularity in the
proceedings, insufficient evidence to support his conviction, and an error of law at trial.
Since DeVaughns’ motion is not based on newly discovered evidence, he was required
to file his motion within fourteen days after his verdict or to request leave to file his motion
out of time by providing clear and convincing proof that he was unavoidably prevented
from timely filing his motion. The record is clear that DeVaughns’ motion for new trial
was untimely, as he filed the motion over ten years after his verdict was rendered.
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Accordingly, DeVaughns was obligated to provide the trial court with clear and convincing
proof that he was unavoidably prevented from filing his motion in a timely fashion.
DeVaughns did not do this. We further note that the record is devoid of any evidence
indicating that DeVaughns was unavoidably prevented from discovering the fact that the
blood evidence was not DNA tested, as he was aware of this fact at the time of trial.
Therefore, since DeVaughns never provided the trial court with a reason, let alone clear
and convincing proof that he had been unavoidably prevented from timely filing his
motion, the trial court did not abuse its discretion in denying his motion for new trial.
{¶ 21} The trial court also properly concluded that the blood evidence issue raised
in DeVaughns’ motion for new trial was barred by the doctrine of res judicata, as he could
have raised that issue in his direct appeal and raised similar issues in DeVaughns IV and
DeVaughns V. See State v. Videen, 2d Dist. Montgomery No. 27479, 2017-Ohio-8608,
¶ 20 (finding res judicata barred appellant from raising issues in his motion for new trial
that could have been raised in his direct appeal), citing State v. Russell, 10th Dist. Franklin
No. 04AP-1149, 2005-Ohio-4063, ¶ 6-7 and State v. Butler, 2d Dist. Clark No. 2717, 1991
WL 116659, *1 (June 26, 1991).
{¶ 22} For the foregoing reasons, DeVaughns’ First Assignment of Error is
overruled.
Second Assignment of Error
{¶ 23} We interpret DeVaughns’ Second Assignment of Error as challenging this
court’s decision in DeVaughns III, as DeVaughns merely quotes the following portion of
that decision:
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[T]he mere fact that at some point during Lynelle Moore’s confinement
Defendant briefly left his apartment to pickup his daughter does not
exonerate Defendant and demonstrate that Defendant did not restrain
Moore’s liberty at other times during this period. Nor does the fact that
Defendant briefly left the apartment necessarily establish that Moore had
opportunities to escape confinement, given the physical injuries Defendant
inflicted on her and his threat to kill her if she tried to escape. Defendant's
first, second, third and sixth assignments of error are overruled.
DeVaughns III, 2d Dist. Montgomery No. 23720, 2011-Ohio-125 at ¶ 25-26.
{¶ 24} DeVaughns’ challenge to this court’s decision in DeVaughns III is not
properly before this court. In addressing a similar issue raised by DeVaughns in one of
his prior appeals, we noted that “DeVaughns’ recourse was to seek reconsideration in
this Court, pursuant to App.R. 26(A), or leave for our decision to be considered by the
Ohio Supreme Court, which were not done.” DeVaughns IV, 2d Dist. Montgomery No.
2012-Ohio-5791 at ¶ 9. The same is true here. This court’s prior decision in
DeVaughns III remains the law of the case, thus rendering any challenge DeVaughns
may have to that decision without merit.
{¶ 25} DeVaughns’ Second Assignment of Error is overruled.
Conclusion
{¶ 26} Having overruled both assignments of error raised by DeVaughns, the
judgment of the trial court is affirmed.
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DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Michael J. Scarpelli
Christopher A. Devaughns
Hon. Gregory F. Singer