[Cite as State v. Smith, 2016-Ohio-7904.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :   Appellate Case No. 27015
         Plaintiff-Appellee                       :
                                                  :   Trial Court Case No. 2004-CR-3554
 v.                                               :
                                                  :   (Criminal Appeal from
 RONALD A. SMITH                                  :    Common Pleas Court)
                                                  :
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                          Rendered on the 23rd day of November, 2016.

                                             ...........


MATHIAS H. HECK, JR., by MEAGAN D. WOODALL, Atty. Reg. No. 0093466,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

RONALD SMITH, No. 516-443, Trumbull Correctional Institution, Post Office Box 901,
Leavittsburg, Ohio 44430
       Defendant-Appellant, pro se

                                            .............

HALL, J.

        {¶ 1} Ronald Smith appeals pro se from a final judgment denying his motion for a

new trial and his motion for leave to file a motion for a new trial, based on a claim of newly
                                                                                        -2-


discovered evidence.

                                       I. Background

       {¶ 2} In 2005, Smith was found guilty of aggravated burglary and aggravated

robbery. The trial court sentenced him to consecutive ten-year prison terms, for a total

sentence of twenty years. We affirmed Smith’s convictions on direct appeal, in State v.

Smith, 2d Dist. Montgomery Nos. 21463, 22334, 2008-Ohio-6330. In our opinion, we set

forth the facts of this case as follows:

              During the evening hours of September 27, 2004, two African–

       American males, one identifying himself as “Little Ronnie,” kicked in the

       front door of Latisha Robinson’s apartment and entered. The man

       identifying himself as Little Ronnie, was armed with a gun. He got in her

       face and demanded to know where her boyfriend, Corey Pullings, was. The

       other man went to her back door and opened it, allowing three additional

       men to enter the apartment.

              When Robinson denied any knowledge of Pullings, Little Ronnie

       went upstairs in the apartment, tearing the handrail off the wall, and he went

       into Robinson’s bedroom putting the gun to her son’s head. He then

       demanded Robinson give him something to get him to leave. Robinson

       gave one of the men sixty dollars and her cell phone.

              Meanwhile, the four men downstairs ransacked Robinson’s

       apartment, toppling furniture and rummaging through boxes, throwing

       things to the floor. The men took additional items from the apartment,

       including radios and CD’s. During the ransacking of the apartment, the
                                                                                 -3-


gunman, who repeatedly identified himself as “Little Ronnie,” and Robinson

were engaged in a confrontation in the dining room where he attempted to

force Robinson to lay on the floor “like execution style.” Finally, after the

other men exited the apartment, “Little Ronnie” ran out, too.

       Robinson then escaped to a neighbor’s apartment, where the police

were called. The next day, Detective Ward, of the Montgomery County

Sheriff’s Office prepared a photo spread containing a picture of Ronald

Smith, the only individual the detective knew that called himself “Little

Ronnie.” Robinson could not identify anyone in the photo spread.

Subsequently, when Robinson was viewing serial photos on the detective’s

computer screen, a photo of Smith came up, showing his gold teeth that

were not displayed in the prior photo. Robinson indicated that this picture of

Smith “could possibly be the person who was in her house.”

       Subsequently, a neighbor, who had opened his door while Smith and

the others were knocking at Robinson’s door, immediately picked out Smith

from a photo spread as the man at her door, and who had identified himself

as Little Ronnie.

       Smith was arrested. After being Mirandized, Smith admitted that he

and four others went to Robinson's apartment looking for Corey Pullings,

but claimed that he left after being told that he was not there. He claimed

that one of the other men kicked in the door and entered, but denied that he

ever entered the apartment. Prior to trial, Smith made a number of phone

calls attempting to get Robinson to take a payoff to drop the charges, and
                                                                                          -4-


       attempting to set up an excuse for why he was in the area.

Smith at ¶ 3-8.

       {¶ 3} The motions that are the subject of this appeal are by our count Smith’s

thirteenth and fourteenth separate motions for a new trial, or for leave to file such a

motion, since his conviction in 2005. Smith filed his “Motion for New – Trial Pursuant to

Newly Discovered Evidence Crim R. 33” on October 29, 2015. This motion was supported

by an affidavit of Nancy C. Duke to the effect that she observed Smith driving away from

the apartment complex where the offenses occurred for which he is in prison, and she

then saw another person kick in the door to an apartment. Smith also filed his “Motion for

A Order Granting Leave to file A Motion for New – Trial Crim. R. 33(B)” on October 30,

2015, supported by essentially the same evidence.

       {¶ 4} With regard to the October 29th new trial motion, the trial court overruled that

motion, by a decision and order filed February 3, 2016, for the reason that Smith did not

follow Crim. R. 33(B) by requesting leave of court to file the motion for a new trial before

the actual motion was filed. Indeed, if a defendant intends to file a motion for a new trial

based on newly discovered evidence after more than 120 days, the defendant must first

seek leave of court before the new trial motion itself can be filed. He “must first file a

motion for leave, showing by ‘clear and convincing proof that he has been unavoidably

prevented from filing a motion in a timely fashion.’ ” State v. Parker, 178 Ohio App.3d 574,

2008–Ohio–5178, 899 N.E.2d 183, ¶ 15 (2d Dist.), quoting State v. Morgan, 3d Dist.

Shelby No. 17–05–26, 2006–Ohio–145, ¶ 7. The trial court was correct to overrule the

new trial motion itself which was filed without first obtaining leave.

       {¶ 5} With regard to Smith’s October 30th motion for leave to file his new trial
                                                                                         -5-


motion, the trial court overruled that motion in a detailed decision and order filed

February 2, 2016.

       {¶ 6} Attached to the motion for leave is Smith’s own affidavit, an affidavit from a

woman named Nancy Duke, and a letter dated September 18, 2015, that Duke sent

Smith. Duke states in her affidavit that she saw Smith drive away from the apartment

building before the crime occurred. And she states that she saw a man named LaQwan

Scandrick kick in the door and enter the apartment. Duke states that Scandrick is also

known as “Little Ronnie” and also has gold teeth and braids. In her letter, Duke tells Smith

what she saw. She says that, at the time, she was afraid to come forward. But she says

that she looked up Scandrick recently and discovered that he is serving a life sentence

for murder, so she no longer has any reason to fear him. Smith states in his affidavit that

he did not know until he received Duke’s letter that she was at the scene and saw what

she claims to have seen.

       {¶ 7} The trial court overruled without a hearing the motion for leave to file a new-

trial motion and the motion for a new trial itself. The trial court concluded that Smith was

not unavoidably prevented from discovering the facts alleged in Duke’s affidavit. In

addition, it concluded that Smith failed to show that Duke’s affidavit creates a strong

probability that he would be acquitted in a new trial.

       {¶ 8} Smith appealed.

                                        II. Analysis

       {¶ 9} Smith assigns two errors to the trial court. The first alleges that the court

abused its discretion by overruling his motion for leave to file the new-trial motion. And

the second alleges that the court abused its discretion by overruling the motion for a new
                                                                                           -6-

trial. We have already determined, at ¶ 4, supra, that the trial court correctly overruled the

motion for a new trial because it was filed without leave of court. We focus the remainder

of our analysis on whether the trial court correctly overruled the request for leave to file

the new trial motion.

              The decision whether to grant a motion for a new trial lies within the

       sound discretion of the trial court and will not be disturbed on appeal absent

       an abuse of that discretion. State v. Schiebel (1990), 55 Ohio St.3d 71, 564

       N.E.2d 54.

              “Abuse of discretion” has been defined as an attitude that is

       unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc.

       (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. It

       is to be expected that most instances of abuse of discretion will result in

       decisions that are simply unreasonable, rather than decisions that are

       unconscionable or arbitrary.

              ***

              Pursuant to Crim.R. 33(A)(6), a new trial may be granted when new

       evidence material to the defense is discovered that the defendant could not

       with reasonable diligence have discovered and produced at trial. To prevail

       on a motion for new trial based upon newly discovered evidence, Defendant

       must show that the new evidence: (1) discloses a strong probability that the

       result of the trial would be different if a new trial were granted; (2) has been

       discovered since the trial; (3) is such as could not have been discovered

       before the trial through the exercise of due diligence; (4) is material to the
                                                                                             -7-


       issues; (5) is not merely cumulative to former evidence; and (6) does not

       merely impeach or contradict the former evidence. State v. Petro (1947),

       148 Ohio St. 505, 76 N.E.2d 370.

              Motions for a new trial based upon newly discovered evidence must

       be filed within one hundred twenty days after the verdict was rendered

       unless it appears by clear and convincing proof that Defendant was

       unavoidably prevented from discovering the new evidence, in which case

       the motion for new trial must be filed within seven days from the order of the

       court finding that Defendant was unavoidably prevented from discovering

       the new evidence within the one hundred twenty day period. Crim.R. 33(B).

State v. DeVaughns, 2d Dist. Montgomery No. 23720, 2011-Ohio-125, ¶ 16-20.

       {¶ 10} The guilty verdicts in this case were returned by the jury in September 2005.

Smith filed his motions in October 2015, over ten years later. Being obviously untimely,

he was required to demonstrate by clear and convincing proof that he was unavoidably

prevented from discovering the new evidence within 120 days after the guilty verdicts

were rendered. The trial court concluded that Smith failed to do that. The court found that

Duke is “not a disinterested or impartial witness,” noting that in the letter she tells Smith,

“I want you to know I miss you and I have love for you.” The court found persuasive the

State’s argument that Duke had almost 9 years to check Scandrick’s status and come

forward. And when she did come forward, instead of going to the police, Duke mailed a

letter with her affidavit to Smith. Smith’s and Duke’s affidavits, said the court, must be

viewed in the context of Smith’s “repeated efforts to obstruct justice in this case, both

before and after the trial, including the prior filing of a false affidavit.” And the court said
                                                                                             -8-


that the affidavits must be weighed against the testimony and evidence presented at trial.

       {¶ 11} Smith’s twelfth motion for a new trial was also purportedly based on newly

discovered evidence and the evidence then was the testimony of one Theron Lewis who

claimed to have witnessed the crime. Lewis was a fellow prison inmate who stated in his

affidavit that he was present when this crime occurred and that he too saw Scandrick kick

open the door to the apartment and go inside. In his own affidavit, Smith claimed that he

was unavoidably prevented from discovering this new evidence because he did not know

the affiant until they met in prison. The trial court summarily overruled this motion too,

finding that Smith failed to demonstrate that he was unavoidably prevented from

discovering the new evidence. The court then also found that Smith’s affidavit was not

credible. This finding was based in part on the timing of his affidavit, signed just 22 days

after the Ohio Supreme Court had affirmed his conviction. The trial court said that Smith’s

discovery of a new exculpatory witness just a short time after his conviction was upheld

was “an incredible coincidence.” The court also based its credibility finding on Smith’s

repeated attempts to obstruct justice in this case, both before and after the trial, and his

filing of a false affidavit from another witness in support of a previous motion for a new

trial. We found no abuse of discretion in the trial court’s denial of Smith’s twelfth motion

for a new trial on the basis of the incredibility of Smith’s affidavit. State v. Smith, 2d Dist.

Montgomery No. 23945, 2011-Ohio-2189, ¶ 21. In addition, we said that even if Smith

had demonstrated that he was unavoidably prevented from discovering the facts alleged

in the witness’s affidavit, in light of the evidence that was presented at the trial, Smith

failed to demonstrate a strong probability that this new evidence would change the result

of the trial. Id. at ¶ 22-26.
                                                                                          -9-




       {¶ 12} We can’t help but notice, as did the trial court, that not only are the

circumstances of how Smith submitted Nancy Duke’s gratuitous “Affitdavit [sic]”

suspicious, the contents of the document itself and her letter to Smith, which was also

attached to Smith’s motion for leave, are suspicious on their face. Duke’s letter indicates

she is submitting the unsolicited “affitdavit [sic]” “to clear my conscious [sic].” (Emphasis

added.) This is eerily similar to LaQwan Scandrick’s 2009 “Sworn Affitdavit [sic]” which

was filed in support of a previous motion and which was also attached to Smith’s

October, 29, 2015 new trial motion. Scandrick had also said he was gratuitously coming

forward because “it would be on my conscious [sic].” Furthermore, Duke’s rendition of

events at the subject apartment is contrary to that in Scandrick’s sworn statement, and,

more importantly, contrary to Smith’s own statement to detectives. Duke’s letter states

that she saw Smith driving away from the apartments “with some b**** in the car” and her

affidavit says, after he was seen driving away, she then saw Scandrick kick in the door to

the apartment. But Smith’s own version of events, which we repeated in ¶2 above from

our opinion in his direct appeal, is that Smith was at the apartment door when one of the

other men he was with kicked in the door, but he, Smith, did not go in. And, Scandrick’s

affidavit says that while he and his accomplices were at the apartment “some other dude

walked up to the door next to us he had braids and gold teeth,” presumably describing

Ronald Smith. Duke’s statement that she saw Smith leave and then Scandrick arrive and

kick in the door is therefore inconsistent with both Smith’s and Scandrick’s rendition of

events.

       {¶ 13} After review of all the facts and circumstances we find no abuse of discretion
                                                                                             -10-


in the trial court’s denial of Smith’s motion for leave to file a motion for a new trial, for the

reasons given by the court. And for the same reasons as those we gave in our review of

his twelfth new-trial motion, even if Smith had demonstrated that he was unavoidably

prevented from discovering the facts alleged in Duke’s affidavit, he fails to show a strong

probability that this new evidence would change the result of the trial. The trial court did

not err by overruling Smith’s motion for leave to file a motion for a new trial or by overruling

his motion for a new trial.

       {¶ 14} Both assignments of error are overruled.

                                       III. Conclusion

       {¶ 15} The trial court’s judgment is affirmed.

                                       .............



DONOVAN, P.J., and WELBAUM, J., concur.



Copies mailed to:

Mathias H. Heck
Meagan D. Woodall
Ronald A. Smith
Hon. Gregory F. Singer
