[Cite as State v. Stepherson, 2013-Ohio-5396.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                   :

                 Plaintiff-Appellee,             :           Nos. 13AP-282
                                                             and 13AP-313
v.                                               :       (C.P.C. No. 94CR-02-1094)

Darrell A. Stepherson,                           :      (REGULAR CALENDAR)

                 Defendant-Appellant.            :




                                          D E C I S I O N

                                   Rendered on December 10, 2013


                 Ron O'Brien, Prosecuting Attorney, Sheryl L. Pritchard, and
                 Steven L. Taylor, for appellee.

                 The Law Office of Eric J. Allen, Ltd., and Eric J. Allen, for
                 appellant.

                  APPEALS from the Franklin County Court of Common Pleas.

BROWN, J.
        {¶ 1} In these consolidated appeals, defendant-appellant, Darrell A. Stepherson,
appeals from judgments of the Franklin County Court of Common Pleas denying his
motions for leave to file a motion for new trial and for "relief from legally inconsistent
verdict."
        {¶ 2} On February 24, 1994, appellant was indicted on two counts of aggravated
murder with death penalty specifications, one count of aggravated robbery, and one count
of kidnapping. Each of the aggravated murder counts contained the same two death
penalty specifications. The indictment arose out of an incident on August 16, 1993, in
which two individuals entered the residence of Nathan and Christa Curry. During the
Nos. 13AP-282 and 13AP-313                                                                 2


events at issue, Nathan Curry, a marijuana dealer, was fatally shot and robbed of
marijuana he kept in the residence.
         {¶ 3} The matter came for trial before a jury beginning October 17, 1994. The jury
returned verdicts finding appellant not guilty of the first count (aggravated murder with
prior calculation and design), but guilty of the lesser-included offense of involuntary
manslaughter, guilty of the second count (aggravated felony murder), and guilty of the
aggravated robbery count. The jury returned a verdict of not guilty on the kidnapping
count.
         {¶ 4} Following a mitigation hearing, the jury recommended a life sentence with
parole eligibility after 30 years. By entry filed December 5, 1994, the trial court sentenced
appellant to 30 years incarceration on Count 2, with an additional three years pursuant to
a firearm specification. The court also sentenced appellant to ten to 25 years on the
aggravated robbery count, to be served consecutive with Count 2.
         {¶ 5} Appellant appealed his convictions, raising two assignments of error in
which he argued that the trial court erred in denying his motion for acquittal, and in
denying his motion to suppress Christa Curry's in-court identification of him. In State v.
Stepherson, 10th Dist. No. 94APA12-1805 (Sept. 26, 1995), this court overruled
appellant's assignments of error and affirmed the judgment of the trial court.
         {¶ 6} On December 13, 2012, appellant filed a pro se "motion for relief from
legally inconsistent verdict, Civ.R. 60(B)(5)." On December 20, 2012, the state filed a
memorandum contra appellant's motion.
         {¶ 7} On January 7, 2013, appellant filed a motion for leave to file a motion for
new trial. In the accompanying memorandum in support, appellant argued he was
unavoidably prevented from discovering: (1) eyewitness identification issues in his trial,
(2) that the prosecutor tainted the identification, and (3) that appellant was part of a
show-up identification. On January 14, 2013, the state filed a memorandum contra
appellant's motion for leave to file a motion for new trial.       On February 22, 2013,
appellant filed a supplement to his motion, which included the affidavits of Shari
Berkowitz, Ph.D., and Jen Ruffing.
Nos. 13AP-282 and 13AP-313                                                                 3


       {¶ 8} By decision and entry filed March 14, 2013, the trial court denied appellant's
motion for relief from legally inconsistent verdict. Also on that date, the trial court filed
an entry denying appellant's motion for leave to file a motion for new trial.
       {¶ 9} On appeal, appellant sets forth the following two assignments of error for
this court's review:
              Assignment of Error Number One

              The trial court erred when it overruled the motion for a new
              trial.

              Assignment of Error Number two

              The trial court erred when it overruled the motion regarding
              inconsistent verdicts.

       {¶ 10} Under his first assignment of error, appellant argues that the trial court
erred in denying his motion for leave to file a motion for new trial. Appellant contends he
presented newly discovered evidence of a show-up identification, based upon an interview
summary prepared by a private investigator, Ruffing, who had spoken in September 2012
with Christa Curry-Meinen, the former wife of the shooting victim, Nathan Curry.
       {¶ 11} The affidavit of Ruffing, filed as part of appellant's supplement to the
motion for leave to file a motion for new trial, states in part:
              Affiant states [o]n September 12, 2012, Christa Curry Meinen
              was contacted. A card was left for her at her home and
              Meinen called Investigator Ruffing a short time later. She
              stated she knew what this was about and then said, "He killed
              my husband." Meinen went on to say they kicked in her door,
              "he shot him twice in the head", stole off of her husband, left
              him for dead, and held she and her twins at gunpoint. Meinen
              stated she did not know what else there was to investigate.
              Meinen stated this happened 15 years ago and the two people
              involved were picked up on the description alone. Meinen
              stated Stepherson had an accomplice and his name was Mark
              Lovejoy. Meinen can't recall which of the two men were
              arrested at a bi-level house hiding under an outcrop from the
              house and which was arrested hiding in some bushes. They
              were trying to get away as their car had broken down and they
              were picked up on the description provided by the neighbors
              in the area where they were caught. After they were arrested,
              Stepherson and Lovejoy were brought back for Meinen to
Nos. 13AP-282 and 13AP-313                                                                  4


               identify. Meinen stated the two men were in separate cruisers
               when the police brought them back to her home for her to
               identify.

       {¶ 12} Appellant maintains that, according to the above investigator's report, the
police employed a highly suggestive identification process, and that it is likely Curry-
Meinen did not identify appellant during this show-up identification. Appellant contends
this information was not turned over to appellant prior to trial, and that the prosecutor
had a duty to correct this omission. Appellant also argues that the investigator's interview
with Curry-Meinen revealed the prosecutor had commented to her about a prior incident
in which appellant allegedly shot and killed an individual.
       {¶ 13} Finally, appellant points to the affidavit of Berkowitz, an Assistant Professor
of Forensic Psychology at Roosevelt University. In her affidavit, Berkowitz offers her
opinion, based upon a review and analysis of documents and materials she had been
provided, that "several eyewitness memory factors are present in this case that may have
affected Christa's memory and impaired her ability to identify the perpetrator.
Consequently, there is a possibility that the identification by Ms. Christa Curry may be
unreliable."
       {¶ 14} In considering a trial court's denial of a motion for leave to file a motion for
new trial, this court employs an abuse of discretion standard. State v. Anderson, 10th
Dist. No. 12AP-133, 2012-Ohio-4733, ¶ 9. Crim.R. 33(A)(6) provides in part that a new
trial may be granted on motion by the defendant "[w]hen new evidence material to the
defense is discovered which the defendant could not with reasonable diligence have
discovered and produced at the trial." Crim.R. 33(B) "imposes time limits for the filing of
a motion for a new trial." Id. at ¶ 11. Specifically, Crim.R. 33(B) states:
               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.
Nos. 13AP-282 and 13AP-313                                                               5


              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 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.

       {¶ 15} This court has previously noted that "Crim.R. 33 contemplates a two-step
procedure when a defendant seeks to file a motion for new trial more than 120 days after
the conclusion of the trial." State v. Bethel, 10th Dist. No. 09AP-924, 2010-Ohio-3837,
¶ 13. Under the first step, "the defendant must demonstrate that he was unavoidably
prevented from discovering the evidence relied upon to support the motion for new trial."
Id. A defendant is "unavoidably prevented" from discovering the new evidence within the
time period for filing a motion for new trial when the defendant "had no knowledge of the
evidence supporting the motion for new trial and could not have learned of the existence
of the evidence within the time prescribed for filing such a motion through the exercise of
reasonable diligence." Id., citing State v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-
2244. Under the second step, "if the defendant does establish by clear and convincing
evidence that the delay in finding the new evidence was unavoidable, the defendant must
file the motion for new trial within seven days from that finding." Id. at ¶ 13.
       {¶ 16} The Supreme Court of Ohio, in State v. Petro, 148 Ohio St. 505 (1947),
syllabus, set forth the following six-part test for determining whether a motion for new
trial on the basis of newly discovered evidence should be granted:
              To warrant the granting of a motion for a new trial in a
              criminal case, based on the ground of newly discovered
              evidence, it must be shown that the new evidence (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.
              Lopa, 96 Ohio St. 410, 117 N.E. 319, approved and followed.)
Nos. 13AP-282 and 13AP-313                                                                  6


       {¶ 17} In considering appellant's motion for leave to file a motion for new trial, the
trial court determined that the motion was untimely, as it was filed more than 120 days
after the judgment entry of conviction and appellant failed to provide clear and
convincing evidence that he was unavoidably prevented from discovering this evidence
within the applicable time period. Specifically, the court held in part: "The issues with the
reliability, or unreliability, of the eyewitness identification were known in 1994 and no
evidence suggests the Defendant could not have discovered those issues." The trial court
also addressed the merits of the motion for new trial, holding that a new trial was not
warranted in light of this court's prior determination that any error as to the admissibility
of the eyewitness identification of Curry-Meinen was harmless. We agree.
       {¶ 18} In the direct appeal of his conviction, appellant argued under his second
assignment of error that "the trial court erred in overruling his motion to suppress Christa
Curry's in-court identification of appellant." Stepherson. Appellant asserted that this
testimony was "tainted and highly suggestive." Id. This court, upon review of the record,
cited numerous issues with Curry-Meinen's testimony and found it "to be unreliable,"
holding that "Ms. Curry's identification should have been suppressed." Id. However, we
further determined that "any error in the admission of her testimony was harmless"
because, "[e]xcluding the identification testimony of Ms. Curry, the record contains
overwhelming evidence of appellant's guilt." Id.
       {¶ 19} Here, even accepting appellant's claim that a show-up identification
occurred such that Curry-Meinen's identification was tainted and/or unreliable, and
further accepting the representations in the affidavit of Berkowitz that there is a
"possibility" the identification of Curry-Meinen "may be unreliable," this court has
previously determined that any error in admitting the identification testimony of this
witness was harmless because the other evidence of appellant's guilt was overwhelming.
Thus, appellant cannot demonstrate that the alleged newly discovered evidence was
material, or that it gives rise to a strong probability that its disclosure would have changed
the result of the trial. Moreover, we agree with the trial court that any issues as to the
reliability (or unreliability) of Curry-Meinen's identification were well known in 1994.
Accordingly, the trial court did not err in finding that appellant failed to establish he was
Nos. 13AP-282 and 13AP-313                                                                     7


unavoidably prevented from discovering the alleged new evidence, and that he failed to
prove such evidence was material.
       {¶ 20} Because the trial court did not abuse its discretion in denying appellant's
motion for leave to file a motion for new trial, the first assignment of error is overruled.
       {¶ 21} Under his second assignment of error, appellant asserts the trial court erred
in denying his motion seeking relief from a "legally inconsistent verdict." In his motion
before the trial court, appellant argued in his memorandum in support that there was "no
provision at law which would permit the jury to 'acquit defendant of aggravated murder,'
as charged in Count One, [and] find defendant guilty of the lesser included offense of
'involuntary manslaughter,' and then 're-adjudicate' defendant's criminal culpability via a
secondary charge (or count) of the very same identical offense."
       {¶ 22} The trial court denied appellant's motion on the grounds that: (1) the
motion, "which is in reality a request for post-conviction relief," was untimely under R.C.
2923.21(A)(2), (2) the motion was barred by res judicata because appellant failed to raise
this issue on appeal, and (3) the verdicts and counts in the indictment were not
inconsistent.
       {¶ 23} On appeal, appellant does not dispute the trial court's determination that
his "motion for relief from legally inconsistent verdict" is in reality a request for post-
conviction relief. R.C. 2953.21(A)(2) requires such a petition to be filed within 180 days
after the trial transcript is filed in the court of appeals in the direct appeal of the judgment
of conviction (subject to two exceptions under R.C. 2953.23(A)(1)).
       {¶ 24} The state notes that appellant filed his motion over 17 years past the
expiration of the time allowable under the statute. The state also cites case law for the
proposition that a motion for post-conviction relief will be barred by the doctrine of res
judicata if the petition raises an issue that could have been raised or was raised on direct
appeal. See State v. Perry, 10 Ohio St.2d 175 (1967).
       {¶ 25} Appellant seeks to avoid the timeliness bar of R.C. 2953.21, as well as the
bar of res judicata, by arguing that his judgment of conviction is void. As noted, appellant
argued in his pro se motion before the trial court that the jury, in acquitting him of
aggravated murder under Count 1, and finding him guilty of the lesser-included offense of
Nos. 13AP-282 and 13AP-313                                                                 8


involuntary manslaughter under that count, then unlawfully "re-adjudicate[d]" him under
the second count for the "same identical offense." Appellant's contention is without merit.
       {¶ 26} Under Ohio law, "felony murder and murder committed with prior
calculation and design are separate and distinct offenses of aggravated murder." State v.
Fort, 8th Dist. No. 52929 (Feb. 4, 1988), citing State v. Ferguson, 175 Ohio St. 390 (1964),
paragraph one of the syllabus; State v. Strozier, 32 Ohio St.2d 62 (1972), syllabus.
Therefore, "the state properly may charge each offense in the same indictment." Fort.
Further, "[a]n inconsistency in a verdict does not arise out of inconsistent responses to
different counts, but only arises out of inconsistent responses to the same count."
Browning v. State, 120 Ohio St. 62 (1929), paragraph four of the syllabus. A jury's finding
of involuntary manslaughter as a lesser-included offense of aggravated murder on one
count "does not preclude conviction on the other count of aggravated murder." State v.
Joseph, 11th Dist. No. 3284 (Dec. 28, 1984).
       {¶ 27} In the present case, appellant was properly indicted on separate and distinct
forms of aggravated murder (aggravated murder with prior calculation and design and
aggravated felony murder), and he faced only one prosecution. As noted by the state, the
trial court did not sentence appellant on both aggravated murder counts. Rather, the
prosecution elected to have appellant sentenced on Count 2, and the jury's determination
rendered as to the lesser-included offense under Count 1 "does not change or vitiate the
jury's finding of guilty on the aggravated murder charge" under the separate count.
Joseph.
       {¶ 28} Appellant contends for the first time on appeal that his sentence is void
under R.C. 2941.25, Ohio's merger statute, and that the state should have been required to
make its election prior to the charge to the jury in light of the inconsistent verdict. Even
had appellant preserved these issues for appeal by raising them before the trial court, we
find the arguments unpersuasive. With respect to the merger statute, "[a] defendant may
be indicted and tried for allied offenses of similar import, but may be sentenced on only
one of the allied offenses. In fact, * * * a defendant may be found guilty of allied offenses
but not sentenced on them." State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 17.
See also State v. Tanner, 90 Ohio App.3d 761, 770 (10th Dist.1993) ("R.C. 2941.25
resolves any prejudice which may occur by limiting conviction to only one count"). As
Nos. 13AP-282 and 13AP-313                                                                 9


noted above, appellant was not sentenced on both aggravated murder counts, and his
conviction is not invalid under Ohio law.
       {¶ 29} Finally, appellant's argument with respect to the timing of the state's
election is not well-taken. Under Ohio law, the state retains the right to elect which allied
offenses to pursue at sentencing, and "[t]he prosecution must elect which offense it will
pursue after a finding of guilt but prior to sentencing." State v. Smith, 1st Dist. No. C-
080126, 2009-Ohio-3727, ¶ 65. Further, a trial court's election to impose punishment
based on a jury's conviction for aggravated murder, rather than on a separate aggravated
murder count in which the jury returned a guilty verdict as to a lesser-included offense,
does "not improperly invade the province of the jury." Joseph.
       {¶ 30} Appellant's contention that his sentence is void is without merit.
Accordingly, the trial court properly held that appellant's petition was untimely, and that
it was barred by the doctrine of res judicata, as he could have raised his claims on direct
appeal from his conviction. Appellant's second assignment of error is overruled.
       {¶ 31} Based upon the foregoing, appellant's first and second assignments of error
are overruled, and the judgments of the Franklin County Court of Common Pleas are
hereby affirmed.
                                                                       Judgments affirmed.

                            TYACK and CONNOR, JJ., concur.

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