State v. DeVore , 2020 Ohio 1132 ( 2020 )

[Cite as State v. DeVore, 2020-Ohio-1132.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 19-COA-031
ADAM M. DEVORE
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Ashland County Court of
Common Pleas, Case No. 17-CRI-002
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 23, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL ADAM M. DEVORE
Ashland County Prosecuting Attorney State I.D. A704-923
Richland Correctional Institute
COLE F. OBERLI P.O. Box 8107
Assistant Prosecuting Attorney 1001 South Olivesburg Road
110 Cottage Street Mansfield, Ohio 44901
Ashland, Ohio 44805
Ashland County, Case No. 19-COA-031 2
Hoffman, P.J.
{¶1} Appellant Adam M. DeVore appeals the judgment entered by the Ashland
County Common Pleas Court overruling his motion for new trial. Appellee is the state of
Ohio.
STATEMENT OF THE CASE1
{¶2} On January 12, 2017, the Ashland County Grand Jury indicted appellant on
one count of rape in violation of R.C. 2907.02(A)(2), one count of abduction in violation
of R.C. 2905.02(A)(2), and one count of domestic violence in violation of R.C. 2919.25(A).
Following jury trial in the Ashland County Common Pleas Court, Appellant was acquitted
of rape, but convicted of abduction and domestic violence. The trial court sentenced
appellant to 36 months in prison on the abduction conviction and to 36 months in prison
on the domestic violence conviction, to be served consecutively to one another for an
aggregate prison sentence of 72 months.
{¶3} This Court affirmed the judgment of conviction and sentence, and the Ohio
Supreme Court denied Appellant's appeal. State v. Devore, 5th Dist. Ashland No. 18-
COA-011, 2018-Ohio-4189, ¶¶ 40-41, appeal not allowed, 154 Ohio St.3d 1502, 2019-
Ohio-345, 116 N.E.3d 155, ¶¶ 40-41 (2019), and appeal not allowed, 155 Ohio St.3d
1457, 2019-Ohio-1759, 122 N.E.3d 217, ¶¶ 40-41 (2019), reconsideration denied, 156
Ohio St.3d 1467, 2019-Ohio-2892, 126 N.E.3d 1177, ¶¶ 40-41 (2019).
{¶4} On August 14, 2019, Appellant filed a motion for leave to file a delayed
motion for new trial, and a motion for new trial on the basis of newly discovered evidence.
1 A rendition of the facts is unnecessary for our resolution of the issues raised in this appeal, but can be
found in this Court's opinion on direct appeal of Appellant's conviction and sentence. See State v. Devore,
5th Dist. Ashland No. 18-COA-011, 2018-Ohio-4189.
Ashland County, Case No. 19-COA-031 3
Appellant sought to present an affidavit sworn by Appellant’s housemate. In the affidavit,
Appellant’s housemate represented he was to be a witness for Appellant at trial, but was
never subpoenaed to testify, and was getting a colonoscopy on the day before trial. The
affidavit stated he received a text message from someone claiming to be Appellant’s
attorney, stating not to worry about coming to trial because the judge would not allow him
to testify if he didn’t receive a subpoena.
{¶5} The trial court found the affidavit facially demonstrated Appellant was aware
of the existence of the witness at the time of trial, and Appellant was attempting to raise
his own failure to procure the witness’s testimony at trial through a motion for new trial
rather than by raising the issue properly on direct appeal. The trial court concluded the
testimony of the witness was not newly discovered evidence and overruled the motion for
new trial.
{¶6} It is from the September 20, 2019 judgment of the court denying his motion
for new trial Appellant prosecutes this appeal, assigning as error:
I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT IN FINDING THAT THE APPELLANT WAS NOT
UNAVOIDABLY PREVENTED FROM DISCOVERING NEW EVIDENCE.
II. THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT’S RIGHT TO A FAIR TRIAL, AND RIGHT TO TRIAL BY JURY
WHEN IT FAILED TO CORRECT MANIFEST CONSTITUTIONAL ERROR
BY ORDERING A NEW TRIAL.
Ashland County, Case No. 19-COA-031 4
{¶7} We note, this matter comes before this Court pursuant to the accelerated
calendar and App. Rule 11.1. Accordingly, it is sufficient compliance with Appellate Rule
12(A) for the statement of the reason for the court's decision as to each error to be in brief
and conclusionary form. This appeal shall be considered in accordance with the
aforementioned rule.
I.
{¶8} In his first assignment of error, Appellant argues the court erred in finding
the affidavit attached to his motion was not newly discovered evidence because the
affidavit did not exist before trial, and further is evidence of the trial court’s efforts to keep
defense witnesses from testifying at trial.
{¶9} For the reasons stated in the judgment of the trial court, we find the court
did not err in finding the evidence was not newly discovered. While the affidavit itself did
not exist before trial, the affidavit clearly establishes on its face Appellant knew of the
existence of this witness prior to trial and, as such, he was not unavoidably prevented
from discovering this evidence. Any alleged error in the trial court’s exclusion of witnesses
at trial should have been raised on direct appeal, and is now barred by res judicata.
{¶10} The first assignment of error is overruled.
II.
{¶11} In his second assignment of error, Appellant argues the trial court erred in
overruling his motion for new trial because the evidence at trial was insufficient to convict
him of domestic violence and abduction.
{¶12} Appellant’s claims concerning weight and sufficiency of the evidence were
raised on direct appeal, and are now barred by res judicata.
Ashland County, Case No. 19-COA-031 5
{¶13} The second assignment of error is overruled.
{¶14} The judgment of the Ashland County Common Pleas Court is affirmed.
By: Hoffman, P.J.
Delaney, J. and
Wise, Earle, J. concur