State v. Boware , 2018 Ohio 1488 ( 2018 )

[Cite as State v. Boware, 2018-Ohio-1488.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28749
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MELVIN L. BOWARE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR-1993-06-1412
DECISION AND JOURNAL ENTRY
Dated: April 18, 2018
CARR, Judge.
{¶1} Appellant, Melvin Boware, appeals the judgment of the Summit County Court of
Common Pleas. This Court affirms.
I.
{¶2} The instant appeal flows from Boware’s 1993 conviction for gross sexual
imposition. Boware received a one-year prison sentence that was suspended in favor of a two-
year term of probation.
{¶3} Boware has attempted to attack his conviction numerous times in recent years. In
2013, Boware filed a group of motions in the trial court challenging his conviction, including a
petition for post-conviction relief. The trial court denied all of the motions and its judgment was
affirmed on appeal. State v. Boware, 9th Dist. Summit No. 26952, 2013-Ohio-5225, ¶ 9.
Thereafter, Boware filed another set of motions in the trial court. Boware’s filings included a
second petition for post-conviction relief and two motions to vacate his plea. The trial court
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again rejected Boware’s challenges to his conviction. On appeal, this Court affirmed the trial
court’s judgment on the basis of res judicata. State v. Boware, 9th Dist. Summit No. 27446,
2014-Ohio-5779, ¶ 7. Boware subsequently filed a third round of motions in the trial court, all
of which were denied. Boware appealed and this Court again concluded that his challenges were
barred by the doctrine of res judicata. State v. Boware, 9th Dist. Summit No. 27975, 2016-Ohio-
7024, ¶ 7.
{¶4} Boware filed another group of motions in 2017. Therein, Boware alleged
numerous due process violations. The common thread that ran through Boware’s motions was
that the State had manipulated and mishandled the evidence in his case. Boware further argued
that there was newly discovered evidence. Based on these allegations, Boware argued that he
should be permitted to withdraw his plea and that the charge against him should be dismissed.
On August 11, 2017, the trial court issued a journal entry denying the motions on the basis that
Boware’s claims were barred by the doctrine of res judicata.
{¶5} On appeal, Boware raises six assignments of error.
II.
ASSIGNMENT OF ERROR I
THE COMMON PLEAS JUDGE ERRED, RES-JUDICATA IS NOT A BAR TO
APPELLANT, MELVIN L. BOWARE NEWLY DISCOVERED EVIDENCE,
THE STATE DID NOT DISCLOSE EXCULPATORY EVIDENCE, TO THE
DEFENSE, MATERIAL TO APPELLANT, MELVIN L. BOWARE, ACTUAL
INNOCENCE, OF RAPE. THAT “THE STATE DID NOT PRESERVE
APPARENTLY EXCULPATORY DNA EVIDENCE” AND COMMITTED
PLAIN ERROR, BY ADMITTING INTO EVIDENCE, AKRON POLICE
INVESTIGATOR [] FABRICATION OF HAVING PRESERVED
APPARENTLY, EXCULPATORY CRIME SCENE RAPE DNA, EVIDENCE,
ON DIRECT EVIDENCE EXHIBIT (X), THE COMPLAINT. THIS
FABRICATED EVIDENCE, SHOULD NOT HAVE BEEN ADMITTED, INTO
EVIDENCE, BECAUSE THE STATE HAD NOT PRESERVED,
APPARENTLY EXCULPATORY CRIME SCENE RAPE DNA, EVIDENCE,
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WHICH, LINKED APPELLANT MELVIN L. BOWARE TO THE ALLEGED
RAPE []. (SIC)
ASSIGNMENT OF ERROR II
THE COMMON PLEAS JUDGE ERRED, RES-JUDICATA IS NOT A BAR TO
APPELLANT, MELVIN L. BOWARE NEWLY DISCOVERED EVIDENCE,
OF ACTUAL INNOCENCE CLAIM, “THE STATE DID NOT DISCLOSE
EXCULPATORY SURVEILLANCE VIDEO EVIDENCE”, TO THE
DEFENSE, MATERIAL TO APPELLANT, MELVIN L BOWARE ACTUAL
INNOCENCE, OF PROVING THAT HE DID NO KIDNAP AND RAPE THE
STATE’S ALLEGED WITNESS []. (SIC)
ASSIGNMENT OF ERROR III
THE COMMON PLEAS JUDGE ERRED, RES-JUDICATA DOES NOT BAR
APPELLANT, MELVIN L. BOWARE NEWLY DISCOVERED EVIDENCE,
OF ACTUAL INNOCENCE CLAIM, A BRADY VIOLATION, “THE STATE
DID NOT DISCLOSE, TO THE DEFENSE, EXCULPATORY EVIDENCE,
THAT IT HAD SUPPRESSED THE TESTIMONY OF A MATERIAL
WITNESS THE PROSTITUTE/INFORMANT [], WITH A FAVORABLE
RULING DEAL ON HER GRAND THEFT CONVICTION”. (SIC)
ASSIGNMENT OF ERROR IV
THE COMMON PLEAS JUDGE ERRED, RES JUDICATA IS NOT A BAR TO
THE CLAIM, “THE STATE KNOWINGLY USED THE PERJURED,
WITNESSS TESTIMONY []”. SUPPORTED, BY DIRECT EVIDENCE
EXHIBIT (K). AND NEWLY DISCOVERED EVIDENCE, “THAT THE
STATE DID NOT PRESERVE CRIME SCENE RAPE DNA EVIDENCE,
WHICH LINKED APPELLANT MELVIN L. BOWARE TO HER ALLEGED
RAPE”. (SIC)
ASSIGNMENT OF ERROR V
THE COMMON PLEAS JUDGE ERRED, RES-JUDICATA DOES NOT BAR
APPELLANT, MELVIN L. BOWARE NEWLY DISCOVERED EVIDENCE,
OF ACTUAL INNOCENCE CLAIM, SUBSTANTIVE DUE PROCESS
VIOLATION, EVIDENCE OF A PURPOSEFUL, AKRON POLICE
CONSPIRACY, TO MANUFACTURE AND FABRICATE EVIDENCE OF A
RAPE AGAINST APPELLANT MELVIN L BOWARE, AND THEN LIBEL,
HIM ON THE FRONT PAGE OF AKRON, BEACON JOURANL
NEWSPAPERS. (SIC)
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ASSIGNMENT OF ERROR VI
THE COMMON PLEAS JUDGE ERRED, THE DOCTRINE OF RES
JUDICATA IS NOT A BAR TO NEWLY DISCOVERED EVIDENCE, THE
“PARTY ADMISSION OF A PARTY OPPONENT,” FORMER AKRON
POLICE CAPTAIN []. IN HIS LAWSUIT AGAINST THE CITY OF AKRON,
AND THE AKRON POLICE DEPARTMENT. (SIC)
{¶6} Boware raises six assignments of error wherein he attempts to raise a variety of
issues and further suggests that the trial court erred in concluding that his claims were barred by
res judicata. This Court disagrees.
{¶7} “Under the doctrine of res judicata, any issue that was or should have been
litigated in a prior action between the parties may not be relitigated.” State v. Zhao, 9th Dist.
Lorain No. 03CA008386, 2004-Ohio-3245, ¶ 7, quoting State v. Meek, 9th Dist. Lorain No.
03CA008315, 2004-Ohio-1981, ¶ 9. To the extent that Boware challenges the validity of his
plea, we note that this Court has held that an offender may not raise issues in a successive motion
to withdraw a guilty plea that could have been raised in the initial motion. Zhao at ¶ 7-8.
{¶8} Boware’s assignments of error are without merit. As noted above, Boware has
filed copious post-judgment motions challenging his conviction in recent years, often alleging
foul play by the State or the discovery of new evidence. Boware makes comparable arguments
in his most recent set of motions filed in the trial court in 2017. With respect to Boware’s claims
pertaining to newly discovered evidence, we note that he expounded similar conspiratorial
allegations pertaining to exculpatory evidence in prior challenges to his conviction and he has
not explained how he was previously prevented from discovering the evidence upon which he
now relies in his most recent round of motions. See State v. Kimbro, 9th Dist. Lorain No.
13CA010506, 2014-Ohio-4869, ¶ 7, citing Zhao at ¶ 7-8 (“An offender may not raise issues in a
successive motion to withdraw a guilty plea that could have been raised in the initial motion.”).
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Thus, while Boware contends that his arguments are not barred, he has not made any arguments
that were not either raised or could have been raised in a prior proceeding. Zhao at ¶ 7. Under
these circumstances, Boware is barred from raising these issues under the doctrine of res
judicata. Id.{¶9} Boware’s assignments of error are overruled.
III.
{¶10} Boware’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
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SCHAFER, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
MELVIN L. BOWARE, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.