[Cite as State v. Smith, 2011-Ohio-2189.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                     :

        Plaintiff-Appellee                        :   C.A. CASE NO. 23945

vs.                                              :    T.C. CASE NO. 04CR3554

RONALD A. SMITH                                   :   (Criminal Appeal from
                                                       Common Pleas Court)
        Defendant-Appellant                       :

                                       . . . . . . . . .

                                            O P I N I O N

                       Rendered on the 6th day of May, 2011.

                                       . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; R. Lynn Nothstine, Asst.
Pros. Attorney, Atty. Reg. No.0061560, P.O. Box 972, Dayton, Ohio
 45422
     Attorneys for Plaintiff-Appellee

Ronald A. Smith, #516-443, P.O. Box 56, London, Ohio 45036
     Defendant-Appellant, Pro Se

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, Ronald Smith, appeals from a final judgment

 denying his motion for a new trial based on a claim of newly

discovered evidence.

        {¶ 2} In 2005, Defendant was found guilty following a jury
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trial of aggravated burglary and aggravated robbery.        The trial

court sentenced Defendant to consecutive ten year prison terms,

for a total sentence of twenty years.       We affirmed Defendant’s

convictions and sentences on direct appeal.           State v. Smith,

Montgomery App. Nos. 21463, 22334, 2008-Ohio-6330.              In our

Opinion, at ¶3-8, we set forth the facts of this case as follows:

     {¶ 3} “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.

     {¶ 4} “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.

     {¶ 5} “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
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the apartment, including radios and CD's. During the ransacking

of the apartment, the 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.

     {¶ 6} “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.’

     {¶ 7} “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.

     {¶ 8} “Smith was arrested. After being Mirandized, Smith

admitted that he and four others went to Robinson's apartment
                                                                    4

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

     {¶ 9} Since he was convicted and sentenced in 2005, Defendant

has over the years filed twelve separate motions for a new trial,

the most recent of which is the subject of this appeal.   On February

10, 2010, Defendant filed that motion for a new trial on February

10, 2010 based upon a claim of newly discovered evidence.    Crim.R.

33(A)(6).    In support of his motion, Defendant attached his own

affidavit and the affidavit of Theron Lewis, a fellow prison inmate.



     {¶ 10} Lewis stated in his affidavit that he was present when

this crime occurred, and that he saw Laquan Scandrick, aka “Little

Ronnie,” and another man kick open the door to Latisha Robinson’s

apartment and go inside.    The next day Lewis purchased a birth

certificate from Scandrick that had been stolen from Robinson’s

apartment.   Lewis claims that Defendant was wrongly convicted for

a crime that Scandrick committed.   In his own affidavit, Defendant

claims that he was unavoidably prevented from discovering Lewis’s

new evidence, within one hundred and twenty days after the guilty
                                                                       5

verdicts were rendered because he did not know Theron Lewis until

they met in prison on January 26, 2010.        Crim.R. 33(B).

     {¶ 11} On March 1, 2010, the trial court summarily denied

Defendant’s motion for a new trial without a hearing.        Based upon

Defendant’s history of repeatedly trying to obstruct justice in

this case both before and after the guilty verdicts were rendered,

including the filing of a false witness affidavit, the trial court

concluded that Defendant’s affidavit is not credible, and he has

not demonstrated by clear and convincing proof that he was

unavoidably   prevented   from   discovering   the   facts   in   Lewis’

affidavit.    The court further concluded, based upon the evidence

presented at the trial, that Defendant has failed to show a strong

probability that the proposed testimony of Theron Lewis would

change the result of the trial.

     {¶ 12} Defendant timely appealed to this court from the trial

court’s decision overruling his latest motion for a new trial.

     FIRST ASSIGNMENT OF ERROR

     {¶ 13} “THE TRIAL JUDGE ABUSED HIS DISCRETION BY OVERRULING

THE MOTION FOR NEW TRIAL FILED FEBRUARY 10, 2010 WITHOUT FIRST

CONDUCTING A EVIDENTIARY HEARING.”

     {¶ 14} “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
                                                                    6

v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54.

     {¶ 15} “‘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.

     {¶ 16} “‘A decision is unreasonable if there is no sound

reasoning process that would support that decision. It is not enough

that the reviewing court, were it deciding the issue de novo, would

not have found that reasoning process to be persuasive, perhaps

in view of countervailing reasoning processes that would support

a contrary result.’ AAAA Enterprises, Inc. v. River Place Community

Redevelopment (1990), 50 Ohio St.3d 157, 161, 553 N.E.2d 597.

     {¶ 17} “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
                                                                   7

been discovered before the trial through the exercise of due

diligence; (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 (1947), 148 Ohio

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

     {¶ 18} “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, Montgomery App. No. 23720, 2011-Ohio-125 at

¶16-20.

     {¶ 19} The guilty verdicts in this case were returned by the

jury on September 7, 2005.   This motion for a new trial was filed

on February 10, 2010, over four years and four months after the

guilty verdicts.   Obviously, Defendant’s motion for a new trial

is untimely, and he was required to demonstrate by clear and

convincing proof that he was unavoidably prevented from discovering

the new evidence within one hundred and twenty days after the guilty

verdicts were rendered.   The trial court concluded that Defendant
                                                                         8

failed to do that.

       {¶ 20} The court’s finding that Defendant failed to demonstrate

    that he was unavoidably prevented from discovering the new

evidence was based upon its conclusion that Defendant’s affidavit

is not credible.       That was based, in part, upon what the court

called the suspicious timing of Defendant’s affidavit, which was

signed on February 1, 2010, just twenty-two days after the Ohio

Supreme Court had affirmed Defendant’s conviction and sentence.

 State v. Smith, 124 Ohio St.3d 116, 2009-Ohio-6539.             The trial

court described it as “an incredible coincidence” that in such

a    short   time   after   the   Supreme   Court’s   decision   upholding

Defendant’s conviction, “Smith should have the good luck of

discovering this new exculpatory witness.”             The trial court’s

finding that Defendant’s affidavit is not credible was also based,

in part, upon Defendant’s repeated efforts to obstruct justice

in this case, both before and after the trial, and his             filing

of a false affidavit from Elonda Lewis in support of a previous

motion for a new trial.

       {¶ 21} We find no abuse of discretion in the trial court’s denial

of Smith’s motion on the court’s finding that his affidavit is

not credible.       Further, even had Defendant demonstrated by clear

and convincing proof that he was unavoidably prevented from

discovering the facts alleged in Theron Lewis’ affidavit within
                                                                     9

one hundred twenty days after the guilty verdicts, he failed to

demonstrate a strong probability that this new evidence would

change the result of the trial.

     {¶ 22} Latisha Robinson, the victim, testified at trial that

the primary assailant referred to himself as “Little Ronnie.”

Patty Swain, who has known Defendant for four years, testified

that everyone refers to Defendant as “Little Ronnie.”         Robinson

also testified that “Little Ronnie” had gold teeth and nappy hair.

 Robinson’s neighbor, Thomas Johnson, testified that the man he

observed from his doorway had gold teeth and braided hair.    Johnson

identified Defendant from a photospread as that man.         Detective

Ward testified that Defendant had gold teeth.   Defendant’s former

girlfriend, Tyelisha Ross, testified that the day before police

arrested Defendant, he had his cousin cut off his braided hair.



     {¶ 23} In his statement to Detective Ward, Defendant placed

himself at Robinson’s front door.     He claimed he had been paid

to beat up Robinson’s boyfriend, Cory Pullings.       According to

Defendant, when Robinson said Cory Pullings was not there, he left.

 Patty Swain testified that she participated in a three way

telephone conversation with Defendant and Tyelisha Ross during

which Defendant asked Swain to act as a “go between” and offer

Latisha Robinson $1,500.00 to drop the charges.     Ross confirmed
                                                                         10

that this conversation occurred.

     {¶ 24} In Dayton v. Martin (1987), 43 Ohio App.3d 87, 90, we

wrote:

     {¶ 25} “While Petro stands for the proposition that newly

discovered evidence that merely impeaches or contradicts other

evidence is not enough for a new trial, we do not read Petro as

establishing a per se rule excluding newly discovered evidence

as a basis for a new trial simply because that evidence is in the

nature of impeaching or contradicting evidence. The test is whether

the newly discovered evidence would create a strong probability

of a different result at trial, or whether it is merely impeaching

or contradicting evidence that is insufficient to create a strong

probability of a different result.”      (Internal citations omitted.)

     {¶ 26} In   view   of   the   evidence   that   was   introduced   at

Defendant’s trial, we find that Defendant has failed to demonstrate

a strong probability that the new evidence would change the result

if a new trial were granted.        The trial court did not abuse its

discretion by overruling Defendant’s motion for a new trial without

a hearing.

     {¶ 27} Defendant’s assignment of error is overruled.               The

judgment of the trial court will be affirmed.

DONOVAN, J. And HALL, J., concur.
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Copies mailed to:

R. Lynn Nothstine, Esq.
Ronald A. Smith
Hon. Dennis J. Langer
