State v. Black

[Cite as State v. Black, 2023-Ohio-1730.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Andrew J. King, J.
-vs-
Case No. 2023 CA 00006
ROGER S. BLACK, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of
Common Pleas, Case No. 15-CR-705
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 23, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JENNY WELLS ROGER S. BLACK, JR. #729370
Licking County Prosecuting Attorney Ross Correctional Institution
Licking County, Ohio P.O. Box 7010
Chillicothe, Ohio 45601
KENNETH W. OSWALT
Assistant Prosecuting Attorney
20 S. Second Street, 4th Floor
Newark, Ohio 43055
Licking County, Case No. 2023 CA 0006 2
Hoffman, P.J.
{¶1} Defendant-Appellant, Roger S. Black, Jr., appeals the judgment entered by
the Licking County Common Pleas Court denying his motion for leave to file a motion for
new trial. Plaintiff-Appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On September 16, 2016, Appellant was convicted following jury trial of two
counts of rape in violation of R.C. 2907.02 and two counts of kidnapping with sexual
motivation in violation of R.C. 2905.01. Appellant was sentenced to an aggregate term of
twenty-six years to life in prison. Appellant's convictions were affirmed on appeal. State
v. Black, 5th Dist. Licking No. 16-CA-90, 2017 WL 2964192 (July 11, 2017).
{¶3} Appellant filed a delayed motion for new trial on February 23, 2018, alleging
the trial court erred in failing to order a mistrial. The trial court overruled the motion,
finding the issues were barred by res judicata, as they could have been raised on direct
appeal. Judgment Entry, March 13, 2018. On May 14, 2018, Appellant filed a second
motion for new trial on the basis of the discovery of new evidence, specifically an affidavit
1 A rendition of the facts is unnecessary to our resolution of the issues raised on appeal.
Licking County, Case No. 2023 CA 0006 3
of a witness to rebut a statement made by the prosecutor in closing argument. The trial
court overruled the motion, finding Appellant had not demonstrated why, with reasonable
diligence, the witness’s testimony could not have been discovered and presented at trial.
Judgment Entry, September 19, 2019.
{¶4} On June 13, 2022, Appellant filed a motion for leave to file a third motion for
new trial pursuant to Crim. R. 33, and simultaneously filed a motion for new trial based
on the discovery of new scientific evidence. Appellant based his motion on testimony in
an unrelated case, reported in State v. Winston, 10th Dist. Franklin No. 16AP-664, 2018-
Ohio-2525. The trial court overruled the motion for leave to file a motion for new trial,
finding Appellant had not demonstrated he was unavoidably prevented from filing his
motion in a timely fashion, and further he had not demonstrated the relevance of the
evidence in Winston to his case. It is from the December 15, 2022 judgment of the trial
court Appellant prosecutes his appeal, assigning as error:
I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
DEFENDANT'S JUNE 13, 2022 NEW TRIAL MOTION, FINDING THAT
Licking County, Case No. 2023 CA 0006 4
DEFENDANT FAILED TO SHOW THAT HE WAS UNAVOIDABLY
PREVENTED FROM THE DISCOVERY OF THE RELIED UPON
EVIDENCE.
II. TRIAL COURT ABUSED ITS DISCRETION BY CONSIDERING
THE MERITS OF THE EVIDENCE PRESENTED BY DEFENDANT FOR
REVIEW BEFORE GRANTING LEAVE FOR DEFENDANT TO FILE.
III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
STATED DEFENDANT'S NEWLY DISCOVERED EVIDENCE WAS NOT
RELEVANT.
I.
{¶5} In his first assignment of error, Appellant argues the trial court abused its
discretion in denying his June 13, 2022 motion for leave to file a new trial motion based
on newly discovered evidence.
{¶6} A motion for leave to file a motion for new trial is addressed to the sound
discretion of the trial court, and may not be overturned absent an abuse of discretion.
Licking County, Case No. 2023 CA 0006 5
State v. Townsend, 10th Dist. Franklin No. 08AP-371, 2008-Ohio-6518. In order to find
an abuse of discretion, we must determine the trial court's decision was unreasonable,
arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶7} Crim.R. 33(B) governs a motion for new trial:
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.
Motions for new trial on account of newly discovered evidence shall
be filed within one hundred twenty days after the day upon which the verdict
Licking County, Case No. 2023 CA 0006 6
was rendered, or the decision of the court where trial by jury has been
waived. If it is made to appear by clear and convincing proof that the
defendant was unavoidably prevented from the discovery of the evidence
upon which he must rely, such motion shall be filed within seven days from
an order of the court finding that he was unavoidably prevented from
discovering the evidence within the one hundred twenty day period.
{¶8} Pursuant to this Rule, a defendant filing a motion for leave to file a motion
for new trial on the basis of newly discovered evidence is required to establish only that
he was unavoidably prevented from discovering the evidence on which he seeks to base
his motion, and unless and until a trial court grants a defendant leave to file a motion for
a new trial, the merits of the new-trial claim are not before the court. State v. Hatton, 169
Ohio St.3d 446, 2022-Ohio-3991, 205 N.E.3d 513. Appellant sought leave to file his
motion for new trial well over five years after the verdict was rendered, beyond either time
requirement under Crim.R. 33(B). If Appellant’s motion was in fact based on newly
discovered evidence, he would have to show by clear and convincing evidence he was
Licking County, Case No. 2023 CA 0006 7
unavoidably prevented from discovering the evidence in a timely fashion. However, the
trial court based its denial of leave on the more general standard Appellant had not
demonstrated he was unavoidably prevented from filing his motion in a timely fashion.
{¶9} While Appellant’s motion purported to be based on newly discovered
evidence, his motion does not set forth newly discovered evidence in his case. Instead,
he points to evidence admitted in an unrelated case in Franklin County, and attempts to
demonstrate how such evidence, if available and admitted in his own case, might have
changed the result. However, information gleaned from case law is not evidence. See.,
e.g., State v. Mills, 73 Ohio App.3d 27, 33, 595 N.E.2d 1045, 1049 (2nd Dist. Montgomery
1991) (The “newly discovered evidence” presented was not evidence at all, but was an
opinion rendered by the Ohio Supreme Court). Appellant’s affidavit filed in support of his
motion for new trial concedes he attempted to obtain an affidavit from the witness who
testified in Winston, or another qualified expert from BCI, but was unable to obtain such
affidavit. Sworn affidavit of Roger Black, July 1, 2022. Therefore, Appellant did not
present any evidence to the court in support of his claim of newly discovered evidence,
and in fact conceded he was unable to obtain the newly discovered evidence he claims
Licking County, Case No. 2023 CA 0006 8
would have changed the result of his trial. Because Appellant’s motion for new trial was
not in fact based on newly discovered evidence, we find the trial court did not err in failing
to make a specific finding he was unavoidably prevented from discovering the evidence
within the one hundred twenty day period, and instead reviewed the motion for leave
under the general standard of whether he was unavoidably prevented from filing his
motion. Appellant’s motion for leave did not establish by clear and convincing evidence
he was unavoidably prevented from filing his motion in a timely fashion, but instead was
filed years after the 2018 decision in Winston, and the trial court did not err in overruling
the motion on this basis.
{¶10} Further, assuming arguendo Appellant’s motion could be construed as
being based on newly discovered “evidence,” Appellant made no showing he was
unavoidably prevented from discovering the evidence within one hundred twenty days of
his trial. The opinion in Winston reflects the trial took place from July 25-29, 2016.
Appellant’s trial took place in September 13-16, 2016. Therefore, the type of scientific
evidence used in the Winston case existed at the time of Appellant’s trial. While Appellant
may not have been aware of the existence of this type of evidence until reading the
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Winston case years later, his motion does not demonstrate he was unavoidably prevented
from discovering this type of scientific evidence at the time of his trial.
{¶11} We find the trial court did not abuse its discretion in overruling Appellant’s
motion to leave to file a motion for new trial.
{¶12} The first assignment of error is overruled.
II., III.
{¶13} Appellant’s second and third assignments of error address the trial court’s
discussion of the merits of his new trial motion. Having found the trial court did not err in
overruling his motion for leave to file a motion for new trial, we find the second and third
assignments of error to be moot.
Licking County, Case No. 2023 CA 0006 10
{¶14} The second and third assignments of error are overruled. The judgment of
the Licking County Common Pleas Court is affirmed.
By: Hoffman, P.J.
Wise, J. concurs and
King, J. dissents
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King, J. dissents,
{¶ 15} I respectfully dissent from the majority's opinion. Based on the record and
arguments before us, I agree with the majority and the trial court that appellant would
likely lose on the merits. But in State v. Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991,
205 N.E.3d 513, ¶ 30, the Supreme Court of Ohio stated that such a conclusion would be
premature:
When a defendant seeks leave to file a motion for a new trial under
Crim.R. 33(B), the trial court may not consider the merits of the proposed
motion for a new trial until after it grants the motion for leave. State v.
Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, ¶ 41, citing
State v. Brown, 8th Dist. Cuyahoga No. 95253, 2011-Ohio-1080, 2011 WL
828382, ¶ 14. The sole question before the trial court when considering
whether to grant leave is whether the defendant has established by clear
and convincing proof that he was unavoidably prevented from discovering
the evidence on which he seeks to base the motion for a new trial.
{¶ 16} Because appellant based his motion for new trial on newly discovered
evidence, in determining whether or not to grant leave to file the motion, the trial court
was required under Crim.R. 33(B) and Hatton to determine if appellant was "unavoidably
prevented from the discovery of the evidence upon which he must rely." Instead, the trial
court considered appellant's motion under the more general requirement of was he
"unavoidably prevented from filing his motion for a new trial." The trial court has not made
Licking County, Case No. 2023 CA 0006 12
a determination as to whether appellant was "unavoidably prevented from the discovery
of the evidence upon which he must rely" under the newly discovered evidence standard.
{¶ 17} Moreover, I disagree with the majority that the merits of the underlying claim
are an appropriate matter to opine on at this step. In Hatton, the Supreme Court was
explicit that Crim.R. 33(B) is a two-step procedure. Id. at ¶ 32. The Supreme Court stated
the merits are only considered at the second step: "Unless and until a trial court grants a
defendant leave to file a motion for a new trial, the merits of the new-trial claim are not
before the court." Id. at ¶ 33. Thus, I would conclude that we should remand the matter
to the trial court for consideration of the motion for leave consistent with Hatton.
Accordingly, I dissent.