[Cite as State v. Vore, 2013-Ohio-1490.]



                                     IN THE COURT OF APPEALS

                             TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




STATE OF OHIO,                                         :
                                                                   CASE NOS. CA2012-06-049
             Plaintiff-Appellee,                       :                     CA2012-10-106

                                                       :                   OPINION
    - vs -                                                                  4/15/2013
                                                       :

WILLIAM B. VORE,                                       :

             Defendant-Appellant.                      :



         CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                              Case No. 10CR27091



David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

William B. Vore, #A612-862, Richland Correctional Institution, 1001 Olivesburg Road, P.O.
Box 8107, Mansfield, Ohio 44901, defendant-appellant, pro se



             PIPER, J.

             {¶ 1} Defendant-appellant, William Vore, appeals decisions of the Warren County

Court of Common Pleas denying his motion for postconviction relief and a motion for a new
         1
trial.




1. Vore filed two separate appeals, which will be consolidated for the purposes of issuing this single opinion.
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       {¶ 2} Vore was charged with robbery and grand theft after he entered a Fifth Third

Bank and stole $9281. Vore handed the bank teller a note written on the back of a First

National Bank deposit slip, which stated "This is A Robbery Give me All your 100s, 50s, 20s,

Fast, no dye packs or alarms." [sic]. Once the teller gave Vore the money, he left the bank

and fled. The bank teller then alerted her manager of the robbery and police began an

investigation.

       {¶ 3} Approximately one hour after the robbery, police took still-photographs from the

bank surveillance video of the robbery and went to various businesses around the bank to

see if anyone recognized the man seen in the video. Two employees of the nearby Motel 6

recognized Vore from the video and told police that Vore had been staying at the motel for a

few days, but had checked out that morning. One employee told police that he saw Vore exit

a dark blue or black car, "like a Nissan," and the other employee told police that Vore had

been wearing the same clothes in the bank robbery video as he was wearing when he

checked out of the motel. The employees gave police the registration information provided

by Vore, and police continued their investigation.

       {¶ 4} Police also investigated other nearby stores, and contacted the assistant

manager of the local Biggs grocery store because the Biggs location had a First National

Bank inside and could have been the source of the deposit slip used for the robbery note.

The assistant manager gave police surveillance footage and still photographs of a man

coming in the store, walking around the store for a moment or two, and then walking near the

First National Bank branch before exiting the store. The man in the surveillance video was

wearing the same outfit as the bank robber.

       {¶ 5} Eventually, police learned that Vore was incarcerated in a Kentucky jail, and

had been arrested approximately two weeks after the robbery for unrelated charges involving

a police chase in which he was seen driving a black Nissan. Police obtained handwriting
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samples from Vore, and two different handwriting experts concluded that Vore wrote the

demand note used during the bank robbery. Vore was indicted on one count of robbery and

grand theft, and the matter proceeded to a jury trial.

       {¶ 6} The jury returned guilty verdicts, and the counts were merged for purposes of

sentencing. The trial court sentenced Vore to five years in prison. Vore then appealed his

convictions to this court, and we affirmed his convictions, but remanded so that the trial court

could correct a sentencing error regarding post-release conditions. State v. Vore, 12th Dist.

No. CA2011-08-093, 2012-Ohio-2431. Vore then filed a motion for postconviction relief and

a motion for a new trial based upon newly discovered evidence with the trial court, both of

which the trial court denied without holding a hearing. Vore now appeals the trial court's

denial of postconviction relief and a new trial, raising the following assignments of error:

       {¶ 7} Assignment of Error No. 1(A):

       {¶ 8} THE TRIAL COURT ERRED AND ABUSED IT'S [sic] DISCRETION WHEN

THE COURT DENIED APPELLANT'S POST-CONVICTION PETITION WITHOUT

ORDERING AN EVIDENTIARY HEARING.

       {¶ 9} Vore argues in his first assignment of error that the trial court abused its

discretion by denying his petition for postconviction relief without first holding a hearing.

       {¶ 10} According to R.C. 2953.21, a defendant may collaterally attack his conviction

based upon an infringement or deprivation of his constitutional rights. In reviewing an appeal

of postconviction relief proceedings, this court applies an abuse of discretion standard. State

v. Wagers, 12th Dist. No. CA2011-08-007, 2012-Ohio-2258, ¶ 15. Rather than a mere error

of law or judgment, an abuse of discretion implies that the trial court's decision was

unreasonable, arbitrary, or unconscionable. State v. Hancock, 108 Ohio St.3d 57, 2006-

Ohio-160.


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       {¶ 11} An evidentiary hearing is not automatically guaranteed each time a defendant

makes a petition for postconviction relief, and instead, "the petitioner must show that there

are substantive grounds for relief that would warrant a hearing based upon the petition, the

supporting affidavits, and the files and records in the case." State v. Watson, 126 Ohio

App.3d 316, 324 (12th Dist.1998); see also R.C. 2953.21(C). The burden is on the petitioner

to show that the claimed errors resulted in prejudice before a hearing on a postconviction

relief petition is warranted. State v. Widmer, 12th Dist. No. CA2012-02-008, 2013-Ohio-62, ¶

164.

       {¶ 12} Vore argues that his petition for postconviction relief was supported by affidavits

and the necessary information to establish that he received ineffective assistance of counsel

so that the trial court should have granted a hearing and allowed him to pursue his petition

for postconviction relief. We disagree.

       {¶ 13} When determining whether a defendant's Sixth Amendment right to effective

assistance of counsel has been violated, "a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional assistance; that is,

the defendant must overcome the presumption that, under the circumstances, the challenged

actions 'might be considered sound trial strategy.'" Strickland v. Washington, 466 U.S. 668,

689, 104 S.Ct. 2052 (1984), quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158

(1955).

       {¶ 14} Within Strickland, the Supreme Court established a two-part test which requires

an appellant to establish that first, "his trial counsel's performance was deficient; and second,

that the deficient performance prejudiced the defense to the point of depriving the appellant

of a fair trial." State v. Myers, 12th Dist. No. CA2005-12-035, 2007-Ohio-915, ¶ 33, citing

Strickland.   Regarding the first prong, an appellant must show that his counsel's


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representation "fell below an objective standard of reasonableness." Strickland, 466 U.S at

688. The second prong requires the appellant to show "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different." Id.

at 694.

       {¶ 15} Vore argues several reasons why he received ineffective assistance of counsel.

First, he argues that his defense counsel was ineffective for failing to investigate and

subpoena Yvonne Baker, who was an employee of a Subway restaurant located across the

street from Fifth Third Bank. Baker told police during their investigation that she recognized

the bank robber as someone who had come to her restaurant the day before the robbery.

Baker told police that the suspect was a heavy-set white male who was missing some of his

front teeth. Baker then positively identified Vore when showed a photograph taken from

Vore's drivers license.

       {¶ 16} Vore asserts that had his trial counsel called Baker to the stand to testify to the

missing teeth comment, the results of his trial would have been different because he could

prove that he was not missing any of his front teeth. However, Vore failed to demonstrate

that the jury would have found him not guilty had Baker testified that she told police that the

man she recognized from the photograph was missing some of his front teeth. The fact

remains that Baker positively identified Vore as the suspect after viewing his drivers license

photograph, regardless of whether he was missing his front teeth. Even if Baker had been

called and testified about the missing teeth, the jury heard testimony from other witnesses

who made identifications of Vore, including two handwriting experts. Therefore, there is no

indication that testimony from Baker would have resulted in a different result or that not

having Baker's testimony was prejudicial to Vore.

       {¶ 17} Vore next argues that defense counsel was ineffective for failing to move the

trial court to suppress the in-court identifications made of him by several witnesses because
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he claims that the identifications were the result of an impermissibly suggestive manner by

the state. However, the record indicates that defense counsel extensively cross-examined

the witnesses who made in-court identifications of Vore, and attacked these identifications to

raise possible doubt in the jury's mind as to their validity. The fact that the jury found the

identifications credible, however, did not render counsel's performance deficient or

prejudicial. Moreover, and as previously stated, the state presented testimony from two

handwriting experts that Vore wrote the robbery demand letter, which was also evidence of

his identification.

       {¶ 18} Vore next argues that counsel was defective for failing to introduce evidence to

challenge and impeach the credibility of two of the state's witnesses who made identification

of Vore as the bank robber. However, the record indicates that defense counsel cross-

examined the state's witnesses, and pointed out potential inconsistences in their testimony.

The witnesses' identifications were matters of credibility for the jury to determine. This is

especially true where Vore argues that his counsel was deficient for not offering

impeachment evidence to challenge one witness' statement that the bank robber wore

glasses.    However, the jury was given the surveillance footage and still photographs

indicating that the robber did not wear glasses. Therefore, the jury was well aware of the

issues regarding identification by the state's witnesses, and as such, defense counsel was

not ineffective.

       {¶ 19} Vore also asserts that his counsel was ineffective for failing to investigate and

subpoena William Hilliard who was a fingerprint examiner to testify that Vore's fingerprints

were not found on the robbery demand note. However, the jury was given evidence that

none of the latent prints found at the robbery scene and on the note had been matched to

Vore. Therefore, defense counsel not calling Hilliard to offer redundant testimony was not

prejudicial and doing so would not have resulted in a different result.
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       {¶ 20} Vore next asserts that trial counsel was ineffective for failing to move to

suppress evidence of a statement made by a detective when police were trying to obtain a

search warrant to search Vore's car. Vore's car had been impounded in Kentucky after the

police chase ended and he had been arrested. Warren County officers were able to procure

the search warrant, but Vore does not state in what way the detective's purported statement

was prejudicial to him during the procurement of the warrant. Nor does Vore demonstrate

how the result of his trial would have been different had the warrant not been obtained. As a

result of the warrant, police took photos of Vore's impounded car as well as the cash found

within Vore's car. However, even in the absence of the photos of the car and cash, the jury

heard other evidence indicating Vore's participation in the robbery and we cannot say the

results of his trial would have been different absent the photographs taken from Vore's car.

       {¶ 21} Vore also claims that his trial counsel was ineffective for failing to introduce

evidence that the currency found in his car when he was arrested after the police chase in

Kentucky was not the same money taken from the bank robbery. However, counsel's

decision not to attribute the $558 found in Vore's car to any one source falls within sound trial

strategy. Vore essentially claims that he had a large amount of cash on his person because

he was employed. However, he does not indicate in any way how the money could be

proven to have come from his employment, or how there was any way to prove that it did not

come from the bank robbery. Moreover, defense counsel was able to establish evidence

through cross-examination that the $558 in cash was eventually released to Vore's sister,

which would tend to indicate that the Kentucky police did not believe it was associated with a

crime. Had defense counsel chosen to pursue this issue at trial without any way to prove

where the money came from instead of simply eliciting evidence that the money was returned

to Vore's sister, there is no indication that the results of Vore's trial would have been different.



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       {¶ 22} Vore next argues that his trial counsel was ineffective for failing to investigate

Crime Stoppers leads. While Vore contends that his counsel failed to investigate any leads

to Crime Stoppers, he fails to demonstrate that any such calls were made to Crime Stoppers

or that there were any actual leads to investigate. Even if there had been evidence submitted

of Crime Stoppers tips, there is no indication that any such tips would have been reliable or

caused police to investigate in any other manner than they did.

       {¶ 23} Vore also asserts that he received ineffective assistance of counsel because

defense counsel failed to object to testimony regarding uncharged prior bad acts and failed to

request a cautionary jury instruction regarding the purpose of the evidence. The jury heard

evidence that Vore was arrested in Kentucky after a police chase, and that upon his arrest,

police found a black pellet gun and $558 in cash in Vore's car. However, there is nothing in

the record to indicate that the jury convicted Vore based on any indication of prior bad acts,

or that the police chase in Kentucky weeks after the robbery was the basis upon which the

jury determined Vore's guilt.

       {¶ 24} Vore next argues that his counsel was ineffective for failing to object to the

state's introduction of evidence that defense counsel's own handwriting expert concluded that

Vore wrote the robbery demand note. However, there was no reason that the expert's

opinion should not have been admitted. Moreover, defense's expert opinion was the same

as the state's expert witness, and therefore was cumulative to other evidence and testimony

before the jury regarding Vore's handwriting analysis.

       {¶ 25} Vore also asserts that his counsel was ineffective for failing to investigate and

subpoena a potential alibi witness. Vore argues that an unknown woman accompanied him

to Cincinnati on the day of the robbery. However, Vore presented no evidence regarding the

woman's identity or her whereabouts, and defense counsel is under no obligation to locate

unknown and unidentified witnesses.
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       {¶ 26} Vore next argues that defense counsel was ineffective for failing to investigate

and subpoena two bank tellers from First National Bank who worked at the branch in Biggs.

Vore claims that these bank tellers would have testified that they did not see Vore in the

branch. However, the jury was shown the video surveillance from Biggs, wherein he was

shown walking near the bank, but did not enter the branch. Therefore, there is no indication

that the result of the trial would have been different had the tellers testified that Vore did not

enter the branch, as the state never claimed that he did. The state only asserted that Vore

walked close enough to take the deposit slip.

       {¶ 27} Vore finally argues that his counsel was ineffective for failing to investigate and

subpoena Detective Brian Payne to impeach the testimony of one of the Fifth Third Bank

tellers, who made an in-court identification of Vore during the trial as the man who robbed the

bank. During the police investigation, the witness told police that she had not seen anything

during the robbery. After the witness made the in-court identification, defense counsel cross-

examined the witness extensively about her comment to police that she had not seen

anything during the robbery. The witness admitted that she had made the statement to

police, and there was no need to call the detective to the stand when the witness readily

admitted that she first told police that she had not seen anything during the robbery.

       {¶ 28} After thoroughly reviewing the file, we do not find that the trial court abused its

discretion in denying Vore's postconviction relief petition, and for doing so without first holding

a hearing. As such, Vore's first assignment of error is overruled.

       {¶ 29} Assignment of Error No. 2:

       {¶ 30} THE TRIAL COURT ERRED WHEN THE COURT FAILED TO MAKE

SUFFICIENT FINDINGS OF FACT AND ADDRESS ALL OF THE APPELLANT'S CLAIMS

RAISED IN HIS INITIAL AND AMENDED AND SUPPLEMENTAL CLAIMS RAISED IN HIS

POST-CONVICTION. [sic]
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          {¶ 31} Vore argues in his second assignment of error that the trial court failed to make

sufficient findings of fact regarding all of the claims raised in his petition for postconviction

relief.

          {¶ 32} According to R.C. 2953.21(G), "if the court does not find grounds for granting

relief, it shall make and file findings of fact and conclusions of law and shall enter judgment

denying relief on the petition." The purpose of requiring findings of fact and conclusions of

law is to apprise the petitioner of the basis for the court's disposition and to facilitate

meaningful appellate review. State v. Sims, 12th Dist. No. CA2005-08-077, 2006-Ohio-3091,

¶ 9, citing State ex rel. Carrion v. Harris, 40 Ohio St.3d 19 (1988). However, a trial court

"need not discuss every issue raised by appellant or engage in an elaborate and lengthy

discussion in its findings of fact and conclusions of law.          The findings need only be

sufficiently comprehensive and pertinent to the issue to form a basis upon which the

evidence supports the conclusion." State v. Calhoun, 86 Ohio St.3d 279, 291-292 (1999).

          {¶ 33} In the present case, the trial court issued a judgment entry addressing Vore's

claims and explaining why Vore's arguments were without merit. The trial court's nine-page

entry was detailed and well-reasoned so that this court had an ample basis upon which we

conducted a meaningful review. While Vore argues that there were four additional grounds

upon which his petition for postconviction relief should have been granted, the trial court's

judgment entry included adequate findings of fact and conclusions of law to satisfy the

requirements of R.C. 2953.21(G). As such, Vore's second assignment of error is overruled.

          {¶ 34} Assignment of Error No. 1(B):

          {¶ 35} THE TRIAL COURT ERRED AND ABUSED IT'S [sic] DISCRETION WHEN

THE COURT DENIED APPELLANT'S MOTION FOR LEAVE OF COURT TO FILE A

DELAYED MOTION FOR NEW                     TRIAL WHEN APPELLANT'S MOTION WAS


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SUBSTANTIALLY SUPPORTED WITH CREDIBLE EVIDENCE THAT DEMONSTRATED

THE STATE INTENTIONALLY WITHHELD BRADY EVIDENCE AND SUBORNED

PERJURY AT TRIAL AND APPELLANT DEMONSTRATED BY CLEAR AND CONVINCING

PROOF THAT HE WAS UNAVOIDABLY PREVENTED FROM DISCOVERING THIS

EVIDENCE AND SHOWED REASONABLE DILIGENCE IN OBTAINING THIS NEWLY

DISCOVERED EVIDENCE RELIED UPON.

       {¶ 36} Vore argues in this assignment of error that the trial court abused its discretion

in denying his motion for a new trial.

       {¶ 37} Vore asserts that the trial court erred in not granting him leave for a new trial

based on newly discovered evidence. Vore argues that the newly discovered evidence is a

surveillance video taken from a Biggs supermarket near the Fifth Third Bank, which also

houses a First National Bank. The demand note used during the robbery of Fifth Third Bank

was written on a deposit slip issued by First National Bank. Vore argues that the Biggs

surveillance video clearly shows that he was not the same man seen taking a deposit slip

from the First National Bank within Biggs. Although Vore admits that he had had knowledge

of the Biggs surveillance video well before trial, he now claims that the video is newly

discovered evidence because he now understands the significance of the video.

       {¶ 38} Crim.R. 33 provides the grounds for which the trial court may grant a new trial

and sets forth the time limitations for filing a motion for a new trial. Motions for a new trial on

the basis of newly discovered evidence must be filed within 120 days of the verdict. Crim.R.

33(B). However, the trial court may grant the defendant leave to file a belated motion 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" within this time period. Id.

       {¶ 39} In order to prevail on a motion for a new trial based upon newly discovered

evidence, the defendant must establish that the evidence,
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              (1) discloses a strong probability that it will change the result if a
              new trial is granted, (2) has been discovered since the trial, (3) is
              such as could not in the exercise of due diligence have been
              discovered before the trial, (4) is material to the issues, (5) is not
              merely cumulative to former evidence, and (6) does not merely
              impeach or contradict the former evidence.

State v. Petro, 148 Ohio St. 505 (1947), syllabus. An appellate court may not disturb a trial

court's decision denying a motion for a new trial absent an abuse of discretion. State v.

Widmer, 12th Dist. No. CA2012-02-008, 2013-Ohio-62.

       {¶ 40} Vore also asserts that the state's suppression of the Biggs surveillance video

constituted a violation of the Fourteenth Amendment based on the United States Supreme

Court decision, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). As stated by the Ohio

Supreme Court,

              Suppression by the prosecution of evidence that is favorable to
              the accused and "material either to guilt or to punishment" is a
              violation of due process. Evidence suppressed by the
              prosecution is "material" within the meaning of Brady only if
              there exists a "reasonable probability" that the result of the trial
              would have been different had the evidence been disclosed to
              the defense. As the United States Supreme Court has stressed,
              "the adjective ['reasonable'] is important. The question is not
              whether the defendant would more likely than not have received
              a different verdict with the evidence, but whether in its absence
              he received a fair trial, understood as a trial resulting in a verdict
              worthy of confidence."

(Internal citations omitted.) State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶ 27,

quoting Kyles v. Whitley, 514 U.S. 419, 433-434, 115 S.Ct. 1555 (1995).

       {¶ 41} After reviewing the record, we do not find that the trial court abused its

discretion in denying Vore's request for a new trial based on newly discovered evidence, or

that the state did anything to suppress the video in violation of Vore's due process rights as

stated in Brady. Instead, within his affidavit, Vore plainly admits that he was made aware of

the Biggs surveillance video prior to his trial, as detectives with the Warren County Sheriff's


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Office interviewed Vore before his trial and showed him still-photographs taken from the

Biggs surveillance footage specific to someone taking a deposit slip from the counter.

Moreover, there was mention made of the Biggs surveillance video at trial so that Vore cross-

examined witnesses about it.

       {¶ 42} During trial, the Biggs assistant manager explained to the jury the contents of

the surveillance video, including that the man in the video is seen entering the store and

making a short loop around the store before going up to the First National Bank branch.

During the assistant manager's testimony, the following exchange occurred.

              [Q] And did you find video footage of when he actually left the
              building?

              [A] Was there not another section of footage?

              [Q] That's all we have.

              [A] Okay. Yeah, I think what there was was [sic] it shows him
              grabbing like a withdrawal slip, something like that off of the
              bank counter.

During cross-examination, the Biggs assistance manager admitted that none of the videos at

trial showed anyone picking up a deposit slip. The trial court then instructed the jury that it

was to disregard any testimony regarding a video depicting the suspect approaching the

counter and taking a slip because the video was not being offered into evidence.

       {¶ 43} Although the state did not have the video, Vore had knowledge of the video and

could have taken the proper steps to enter it into evidence. The record demonstrates that

the trial court held a sidebar, which was not made a part of the record. Therefore, this court

has no knowledge if defense counsel moved for a continuance or took any steps to secure

the video. Regardless, the fact remains that the trial court instructed the jury regarding the

missing video, and all parties were made aware of its existence.




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      {¶ 44} Regarding Brady, there is nothing on the record to indicate that the state did

anything to suppress the video.       Instead, the state clearly indicated during its direct

examination of the Biggs assistant manager that it did not have the video, and the Biggs

assistant manager stated that he was the individual responsible for providing the video clips

and still photographs. Therefore, there is no indication in the record that the state had any

part in intentionally editing the video to exclude footage of the suspect walking up to the

counter and retrieving a bank slip.

      {¶ 45} Beyond Brady and the fact that the video is not newly discovered evidence,

Vore has failed to prove that the Biggs surveillance video would have changed the outcome

of the case had a new trial been granted. Instead, and even if there was a video that showed

someone else taking a bank deposit slip from First National Bank, the jury heard testimony

from several witnesses who identified Vore as the bank robber, including two handwriting

experts who concluded that Vore wrote the robbery demand note. Vore has failed to carry

his burden to demonstrate that he was entitled to a new trial. As such, Vore's final

assignment of error is overruled.

      {¶ 46} Judgment affirmed.


      HENDRICKSON, P.J., and S. POWELL, J., concur.




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