State v. Taylor

[Cite as State v. Taylor, 2022-Ohio-3579.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case Nos. 29422 and 29423
:
v. : Trial Court Case No. 2008-CR-1087
:
GUDONAVON J. TAYLOR : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 7th day of October, 2022.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, 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
GUDONAVON J. TAYLOR, Inmate No. A627-232, Trumbull Correctional Institution, P.O.
Box 901, Leavittsburg, Ohio 44430
Defendant-Appellant, Pro Se
.............
DONOVAN, J.
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{¶ 1} Defendant-appellant Gudonavon J. Taylor appeals pro se from a judgment
of the Montgomery County Court of Common Pleas, which denied his motion for leave to
file a delayed motion for a new trial and his motion to vacate a void conviction. Taylor
filed timely notices of appeal on March 15, 2022.1
Facts and Procedural History
{¶ 2} We previously set forth the history of the case in State v. Taylor, 2d Dist.
Montgomery No. 28276, 2019-Ohio-4485, and repeat it herein in pertinent part:
In 2010, a jury found Taylor guilty of three counts of murder, two
counts of felonious assault, one count of discharging a firearm on or near a
prohibited premises, and several firearm specifications. Following a bench
trial, the trial court also found Taylor guilty of having weapons while under
disability. After Taylor's conviction, the trial court merged several of the
offenses and thereafter imposed a prison term of 15 years to life for murder,
eight years for felonious assault, ten years for discharging a firearm on or
near a prohibited premises, five years for having weapons while under
disability, and three years for all of the firearm specifications. The trial court
ordered all of the sentences to be served consecutively for a total,
aggregate term of 41 years to life in prison with the possibility of parole.
Taylor filed a direct appeal from his conviction, and this court affirmed
the judgment of the trial court. See State v. Taylor, 2d Dist. Montgomery
1 Taylor separately appealed the trial court’s decision overruling his motion for leave to
file a delayed motion for a new trial and his motion to vacate a void conviction, respectively
Montgomery C.A. Nos. 29422 and 29423. We have consolidated the appeals.
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No. 23990, 2013-Ohio-186 (“Taylor I”). This court later allowed Taylor to
reopen his appeal, and he raised five additional assignments of error. After
considering the new assignments of error, we again affirmed the trial court's
judgment. See State v. Taylor, 2d Dist. Montgomery No. 23990, 2014-Ohio-
3647 (“Taylor II”).
Three years later, in 2017, Taylor filed a pro se “motion to vacate
unlawful sentence.” In support of that motion, Taylor argued that his
sentence violated the Eighth Amendment's prohibition against cruel and
unusual punishment. The trial court overruled the motion, and Taylor
appealed. On appeal, we found no error in the trial court's decision
overruling the motion and affirmed the judgment of the trial court. See State
v. Taylor, 2d Dist. Montgomery No. 27879, 2018-Ohio-4628 (“Taylor III”).
While Taylor III was pending, Taylor filed a pro se “motion to correct
allied offenses.” The trial court, however, denied the motion on grounds
that it lacked jurisdiction to rule on the matter due to the pending appeal in
Taylor III. Taylor then filed a timely notice of appeal from that decision. In
April 2019, we affirmed the trial court's decision denying Taylor's motion on
jurisdictional grounds, and also found that the allied offense argument
raised in the motion was barred by res judicata. See State v. Taylor, 2d
Dist. Montgomery No. 28166, 2019-Ohio-1376 (“Taylor IV”).
While Taylor IV was pending, Taylor filed a pro se “motion for
resentencing.” In that motion, Taylor claimed that he was entitled to a
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resentencing because his sentence was rendered void as a result of the
trial court advising him that he would be subject to a single, five-year-
mandatory term of post-release control. According to Taylor, the trial court
should have instead notified him of the distinct term of post-release control
that applied to each of his offenses. The trial court disagreed and
overruled Taylor's motion upon finding that it had properly notified Taylor of
his post-release control obligation. Taylor appealed, and we affirmed the
judgment of the trial court holding that the trial court did not err in overruling
his motion for resentencing because his sentence was not rendered void as
a result of the trial court failing to notify appellant of the applicable term of
post-release control for each of his offenses. See State v. Taylor, 2d Dist.
Montgomery No. 28276, 2019-Ohio-4485, ¶ 11-12. (“Taylor V”). Rather,
we held that the trial court properly advised appellant of the single, longest
term of post-release control that applied. Id.Motion for Leave to File a Delayed Motion for New Trial
{¶ 3} On January 26, 2022, Taylor filed a “Motion for Leave to File a Delayed
Motion for New Trial Pursuant to Criminal Rule 33(B).” In his motion, Taylor argued that
he should be granted a new trial for the following reasons: 1) the prosecutor committed
plain error by knowingly using perjured testimony to convict him; 2) the prosecutor
committed plain error by impermissibly suggested to the jury that in order for it to find
Taylor not guilty, it would have to disbelieve the State’s witness and evidence; and 3) the
trial court committed plain error by incorrectly instructing the jury that Taylor had the
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burden of proof with respect to his alibi defense. Taylor also argued that he had been
unavoidably prevented from filing his motion for new trial within the 14 days required
pursuant to Crim.R. 33(B) because he did not have access to the trial transcript until two
months after the verdict was rendered, and “the only way [Taylor] could have discovered
the misconduct by [the] Prosecutor and the error of law occurring at trial was if he had
access to the transcript.” Motion for Leave, p. 1. Taylor also argued that his youth at
the time of the trial should excuse his failure to file a timely motion for new trial.
{¶ 4} On February 24, 2022, the trial court overruled Taylor’s motion for leave to
file a delayed motion for a new trial, finding that he had failed to establish that he had
been unavoidably prevented from filing a timely motion for new trial because of the
allegedly missing trial transcript. The trial court also noted that Taylor’s motion for leave
was filed “not only outside of the 14 days required under Crim.R. 33(B), but comes over
11 years after the jury rendered its guilty verdicts on March 30, 2010.” With respect to
the arguments advanced in Taylor’s motion for new trial, the trial court found that they all
lacked merit and were barred by res judicata.
Motion to Vacate Void Conviction
{¶ 5} On February 18, 2022, Taylor filed a “Motion to Vacate Void Conviction.” In
the motion to vacate, Taylor contended that the trial court had lacked subject matter
jurisdiction over the majority of the charges for which he was indicted because the juvenile
court found probable cause that he had committed the two counts of murder charged in
the original complaint, but the juvenile court failed to bind over the remaining counts for
which Taylor had been indicted. In its decision overruling Taylor’s motion to vacate a
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void a conviction, the trial court distinguished the main case relied upon by Taylor, State
v. Smith, 167 Ohio St.3d 423, 2022-Ohio-274, __ N.E.3d __, finding that the common
pleas court had had proper jurisdiction over all of the offenses for which Taylor was
indicted and later convicted. The trial court also found that Taylor’s argument in his
motion to vacate a void sentence was barred by res judicata and also barred as an
untimely petition for post-conviction release.
{¶ 6} It is from these judgments that Taylor now appeals.
{¶ 7} Taylor’s first assignment of error is as follows:
APPELLANT’S STATUTORY AND CONSTITUTIONAL RIGHTS
WERE VIOLATED WHEN HE WAS INDICTED AND CONVICTED ON
CHARGES THAT WERE NEVER TRANSFERRED FROM THE JUVENILE
COURT TO THE MONTGOMERY COUNTY COURT OF COMMON
PLEAS.
{¶ 8} Taylor contends that the trial court did not properly bind his case over and/or
that the general division of the common pleas court did not have jurisdiction to sentence
him after he was found guilty by a jury on multiple counts and in a bench trial on one
count. In support of his argument, Taylor relies on the Ohio Supreme Court’s decision
in Smith, which was decided on February 2, 2022.
{¶ 9} Smith held that “[a] finding of probable cause is a jurisdictional prerequisite
under R.C. 2152.12 to transferring a child to adult court for prosecution of an act charged.”
Id. at ¶ 44. Smith further concluded that “[i]n the absence of a juvenile court's finding
probable cause or making a finding that the child is unamenable to care or rehabilitation
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within the juvenile system, no adult court has jurisdiction over acts that were charged in
but not bound over by the juvenile court.” Id.
{¶ 10} In our view, Smith is clearly distinguishable from Taylor’s case. In Smith,
the juvenile court found probable cause on two counts of aggravated robbery and one
count of grand theft; however, with respect to the remaining charges in the complaint the
court did not find probable cause and specifically stated the same. Id. at ¶ 9-10.
Thereafter, the juvenile court conducted an amenability hearing and concluded that Smith
was not amenable to the juvenile system, and it transferred his case to the general
division for his prosecution as an adult for the acts for which the juvenile court had found
probable cause. Id. at ¶ 10-11. After the case was transferred to the adult court, the
State obtained a grand-jury indictment against Smith on eight counts that were identical
to those that had been alleged in the original juvenile complaint, including those for which
the juvenile court had found no probable cause and including firearm specifications on
the aggravated-burglary counts and the grand-theft and theft counts. Id. at ¶ 12.
{¶ 11} Based upon actions taken by the State, Smith held “the General Division of
the Cuyahoga County Common Pleas Court lacked subject-matter jurisdiction over
Counts 4, 6, 7, and 8 and the firearm specifications because the juvenile court found that
the acts related to those counts and specifications were not supported by probable cause
and thus the juvenile court could not have made an amenability determination with regard
to those acts.” Id. at ¶ 43.
{¶ 12} Smith is distinguishable from this case. Taylor, who was 17 years old at
the time, was charged by complaint in the juvenile court for two counts of murder, with a
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firearm specification on count two. After the court heard testimony at the probable cause
hearing, it found probable cause on the two murder counts and the firearm specification.
After this finding of probable cause, Taylor was indicted on April 7, 2008, for three counts
of murder, two counts of felonious assault, and one count of having weapons while under
disability; each of the six counts carried a firearm specification. On April 18, 2008, Taylor
was indicted for an additional count of discharge of a firearm on or near prohibited
premises, with a firearm specification.
{¶ 13} In our view, since Taylor was bound over by the juvenile court after it had
found probable cause for the two murder counts and the firearm specification (the only
charges in the complaint before the juvenile court), Taylor’s case does not involve the
jurisdictional defects identified in Smith. Additionally, the general division of the common
pleas court did have jurisdiction over Taylor after his case was transferred pursuant to
R.C. 2151.23(H), which expressly provides:
The court to which the case is transferred for criminal prosecution pursuant
to that section has jurisdiction subsequent to the transfer to hear and
determine the case in the same manner as if the case originally had been
commenced in that court, subject to section 2152.121 of the Revised Code,
including, but not limited to, jurisdiction to accept a plea of guilty or another
plea authorized by Criminal Rule 11 or another section of the Revised Code
and jurisdiction to accept a verdict and to enter a judgment of conviction
pursuant to the Rules of Criminal Procedure against the child for the
commission of the offense that was the basis of the transfer of the case for
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criminal prosecution, whether the conviction is for the same degree or a
lesser degree of the offense charged, for the commission of a lesser-
included offense, or for the commission of another offense that is different
from the offense charged.
{¶ 14} As noted by the trial court, this section has remained substantially the same
since at least 2006 when 2007 Ohio S.B. 10 went into effect. Therefore, the version of
this statute in effect when Taylor was charged, bound over, and found guilty by the
Common Pleas Court was the same as it is today. Furthermore, nothing in Smith
changed or modified this statute. All of Taylor’s convictions were either for the offense
for which he was transferred, or the commission of the offenses for which he was charged
after his transfer, such as the weapons under disability or discharge of a firearm at or
near a prohibited premises. All of these offenses occurred on the same day as the
murder on December 7, 2007, and involved the same firearm as the murder.
{¶ 15} In general, “[a] new judicial ruling may be applied only to cases that are
pending on the announcement date, and the new judicial ruling may not be applied
retroactively to a conviction that has become final, that is, where the accused has
exhausted all of his appellate remedies.” State v. Greathouse, 2d Dist. Montgomery No.
24935, 2012-Ohio-2414, ¶ 6, citing Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819
N.E.2d 687; State v. Smith, 2d Dist. Montgomery No. 27294, 2017-Ohio-2684, ¶ 11. In
Taylor’s case, it is undisputed that his convictions became final on March 11, 2015, after
we affirmed his conviction in Taylor II, and the Ohio Supreme Court declined further
review. See Taylor II, 2d Dist. Montgomery No. 23990, 2014-Ohio-3647, appeal not
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accepted for review, State v. Taylor, 141 Ohio St.3d 1490, 26 N.E.3d 824, 2015-Ohio-
842.
{¶ 16} Accordingly, Taylor’s convictions had been final for approximately seven
years when he filed his motion to vacate a void conviction on February 18, 2022.
Nevertheless, and without providing any support for his argument, Taylor argues that the
Ohio Supreme Court’s decision in Smith, issued in February 2022, should be retroactively
applied to render his convictions void. However, as previously stated, new judicial
rulings may only be applied to cases that are pending on the announcement date, and
the new judicial ruling may not be applied retroactively to a conviction that has become
final because the accused has exhausted all of his appellate remedies. Greathouse at
¶ 6. Because Taylor’s convictions became final in 2015, he cannot avail himself of the
Ohio Supreme Court’s holding in Smith, which was decided in 2022.
{¶ 17} Taylor’s first assignment of error is overruled.
{¶ 18} Taylor’s second assignment of error states:
THE APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AND
DUE PROCESS OF LAW AS GURANTEED BY THE SIXTH AND
FOURTEENTH AMENDMENT[S] OF THE UNITED STATES
CONSTITUTION WHEN THE STATE KNOWINGLY USED FALSE
EVIDENCE TO OBTAIN HIS CONVICTION.
{¶ 19} Taylor argues that the testimony of Louise Tamlyn, a State’s witness at trial,
was completely unreliable because she perjured herself when she identified Taylor as the
perpetrator of the shooting. Taylor also contends that the State was aware that Tamlyn
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was lying but still permitted her to testify.
{¶ 20} Upon review, we agree with the trial court and conclude that issues raised
by Taylor regarding Tamlyn’s testimony in his motion for leave to file a delayed motion for
new trial were barred by the doctrine of res judicata, as he could have raised those issues
in his direct appeal and raised similar issues in other post-convictions motions. See State
v. Videen, 2d Dist. Montgomery No. 27479, 2017-Ohio-8608, ¶ 20, citing State v. Russell,
10th Dist. Franklin No. 04AP-1149, 2005-Ohio-4063, ¶ 6-7 (finding res judicata barred
appellant from raising issues in his motion for new trial that could have been raised in his
direct appeal). Significantly, the record establishes that Taylor did raise arguments
relating to the prosecutor’s remarks during trial about Tamlyn’s credibility in his reopened
appeal. See Taylor II at ¶ 35-51. In the reopened appeal, Taylor also made arguments
relating to the credibility of witnesses in general, as well as a manifest weight argument.
Id. Accordingly, the trial court did not err when it held that Taylor’s arguments were
barred by res judicata.
{¶ 21} Because they are interrelated, Taylor’s third and fourth assignments of error
will be discussed together as follows:
THE ADULT COURT ERRED TO THE PREJUDICE OF
APPELLANT BY PLACING ON HIM THE BURDEN OF PROVING THE
DEFENSE OF ALIBI BEYOND A REASONABLE DOUBT, THEREBY,
VIOLATING THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.
THE ADULT COURT ABUSED ITS DISCRETION AND DENIED
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APPELLANT HIS RIGHT TO FUNDAMENTAL FAIRNESS AND DUE
PROCESS AS GUARANTEED BY THE OHIO AND UNITED STATES
CONSTITUTION[S] WHEN IT DENIED HIS MOTION FOR LEAVE TO FILE
A DELAYED MOTION FOR NEW TRIAL.
{¶ 22} In his third assignment, Taylor argues that the trial court erred when it
improperly instructed the jury by suggesting that Taylor had the burden of proving his alibi
defense beyond a reasonable doubt. In his fourth assignment, Taylor argues that the
trial court erred when it found that his motion for leave to file a delayed motion for new
trial was untimely. As previously stated, Taylor was found guilty of the offenses by a jury
on March 10, 2010. Taylor did not file his motion for leave to file a delayed motion for
new trial until January 26, 2022, over 11 years beyond the 14-day time limitation for filing
a motion for new trial.
{¶ 23} Crim.R. 33(B) states as follows:
(B) Motion for New Trial; Form, Time. Application for a new trial shall be
made by motion which, except for the cause of newly discovered evidence,
shall be filed within fourteen days after the verdict was rendered, or the
decision of the court where a trial by jury has been waived, 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, in which case the motion
shall be filed within seven days from the order of the court finding that the
defendant was unavoidably prevented from filing such motion within the
time provided herein.
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{¶ 24} Regarding a hearing on a motion for leave to file a motion for a new trial,
this Court has noted:
* * * We have held that a defendant is entitled to such a hearing if he
submits “documents that on their face support his claim that he was
unavoidably prevented from timely discovering the evidence” at issue.
State v. York, [2d Dist. Greene No. 1999-CA-54, 2000 WL 192433 (Feb. 18,
2000)], citing State v. Wright (1990), 67 Ohio App.3d 827, 828 * * * (finding
affidavits sufficient to warrant a hearing on whether the defendant was
unavoidably prevented from discovering the facts upon which his request
for a new trial relied). Notably, the documents at issue in York and Wright
were affidavits from prosecution witnesses recanting their trial testimony
against the defendant.
State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, 869 N.E.2d 77, ¶ 19 (2d
Dist.).
{¶ 25} 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. 2001-CA-33, 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 discovering the new evidence within the time period provided by Crim.R. 33(B).”
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(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.
{¶ 26} “ ‘[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.
{¶ 27} Normally, “[w]e review a trial court's ruling on a Crim.R. 33 motion for an
abuse of discretion.” State v. Thompson, 2d Dist. Montgomery No. 25016, 2012-Ohio-
4862, ¶ 7. “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable,
arbitrary or unconscionable.” (Citation omitted.) AAAA Ents., Inc. v. River Place
Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597(1990).
{¶ 28} The evidence on which Taylor relied in support of his motion for leave to file
a delayed motion for new trial consisted of the following: 1) the trial testimony of Tamlyn,
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which Taylor alleges was perjured; 2) the prosecutor’s remarks in opening statements
and closing arguments regarding Tamlyn’s testimony; and 3) the trial court’s instruction
to the jury regarding Taylor’s alibi defense. Here, Taylor contends that he was
unavoidably prevented from filing his motion for leave within 14 days because it took him
over two months to obtain a copy of the trial transcript. We have already addressed this
issue in State v. Hutchinson, 2d Dist. Montgomery No. 17852, 2000 WL 262650 (Mar. 10,
2000). In Hutchinson, we held that obtaining a copy of a transcript before filing a motion
for a new trial is not sufficient proof to show any petitioner was unavoidably prevented
from filing a timely motion for a new trial. Id. We also stated:
Although Hutchinson said he was indigent and was not entitled to free
transcripts of the proceedings until his direct appeal was filed, he was in the
same position as any other indigent defendant. For that matter,
Hutchinson was in the same position as any convicted defendant. Due to
the short time limits for filing motions for new trial, the transcript of the trial
proceedings is typically unavailable, even to litigants who can pay.
Furthermore, the transcript is not needed…[and as] a final point, we note
that both the trial court and the litigants ought to be familiar with the
evidence in a case which has just been heard.
Id. at *7.
{¶ 29} Here, the record establishes that Taylor was present during the entirety of
his jury trial, so he was aware of the statements made by all parties, including the
witnesses and the prosecuting attorneys, and of the trial court’s jury instructions.
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Furthermore, the record establishes that he and his trial counsel were provided a copy of
the jury instructions prior to their being read to the jury, and the version of the alibi
instruction given by the trial court was requested by Taylor and given without objection.
See 2 Ohio Jury Instructions CR 421.03.2 We also note that any issues regarding the
jury instructions could have been argued by Taylor in his direct appeal from his
convictions, but were not, and are therefore barred by res judicata.
{¶ 30} Finally, Taylor’s “juvenile status” at the time of his trial cannot form the basis
for an excuse from filing a timely motion for leave to file a motion for new trial pursuant to
Crim.R. 33(B).
{¶ 31} In light of the foregoing, we find that the trial court did not err when it held
that Taylor’s motion for leave to file a delayed motion for new trial was untimely, and that
he failed to establish that he was unavoidably prevented filing said motion in a timely
manner.
{¶ 32} Taylor’s third and fourth assignments of error are overruled.
{¶ 33} All of Taylor’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
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2 “1. The defendant claims that he was at some other place at the time the offense
occurred. This is known as an alibi. The word ‘alibi’ means elsewhere or a different
place. If the evidence fails to establish that the defendant was elsewhere, such failure
does not create an inference that the defendant was present at the time when and at the
place where an offense may have been committed. If, after a consideration of the
evidence of alibi along with all the evidence, you are not convinced beyond a reasonable
doubt that the defendant was present at the time in question, you must return a verdict of
not guilty.”
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EPLEY, J. and LEWIS, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Gudonavon J. Taylor
Hon. Robert G. Hanseman
Hon. William H. Wolff, Jr., Visiting Judge