[Cite as State v. Videen, 2017-Ohio-8608.]




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

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 27479
                                                   :
 v.                                                :   Trial Court Case No. 2011-CR-3378
                                                   :
 LANCE VIDEEN                                      :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                          Rendered on the 17th day of November, 2017.

                                              ...........

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

LANCE VIDEEN, 4831 Northcliff Drive, Apartment 6, Dayton, Ohio 45431
    Defendant-Appellant

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




WELBAUM, J.
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       {¶ 1} Defendant-appellant, Lance Videen, appeals from the judgment of the

Montgomery County Court of Common Pleas overruling his Crim.R. 33 motion for new

trial without a hearing. For the reasons outlined below, the judgment of the trial court will

be affirmed.



                           Facts and Course of Proceedings

       {¶ 2} On December 7, 2011, Videen was indicted on two counts of illegal use of a

minor in nudity-oriented material or performance in violation of R.C. 2907.323(A)(3). The

charges arose after Sergeant Harold Jones of the Riverside Police Department

discovered images on Videen’s laptop computer depicting naked, prepubescent boys.

       {¶ 3} After pleading not guilty to the charges, on February 12, 2012, Videen filed a

motion to suppress the images discovered on his computer and the statements he made

to Sergeant Jones during a video-recorded interview at the police station. Following a

hearing on the matter, the trial court overruled Videen’s motion to suppress. The trial

court declined to suppress Videen’s statements because it found that Videen had been

properly advised of his Miranda rights and that he knowingly and voluntarily waived them.

The trial court declined to suppress the incriminating images discovered on Videen’s

computer because the court found that Videen had voluntarily consented to the search

that yielded the images.

       {¶ 4} On April 12, 2012, the case proceeded to a bench trial. At trial, the State

presented the testimony of Sergeant Jones and Jones’s recorded interview with Videen.

Videen did not testify or present any evidence in his defense. Although Videen was
                                                                                          -3-


represented by counsel at the suppression hearing, he elected to represent himself at

trial with standby counsel present to assist him. With the assistance of standby counsel,

Videen moved for a judgment of acquittal under Crim.R. 29, which the trial court denied.

Thereafter, on April 18, 2012, the trial court returned a guilty decision on both illegal-use

counts.     Following a presentence investigation, the trial court sentenced Videen to

community control sanctions not to exceed five years and designated him a Tier I sex

offender.

       {¶ 5} Videen filed an appeal from his conviction and sentence, which we decided

on April 5, 2013. See State v. Videen, 2013-Ohio-1364, 990 N.E.2d 173 (2d Dist.). In

that appeal, we held the trial court correctly concluded that Videen voluntarily consented

to the search of his computer. Id. at ¶ 19-26. However, we reversed and vacated his

conviction for one of the illegal-use counts on grounds that the nude image on which that

count was based did not amount to a “lewd exhibition” as is required for convictions under

R.C. 2907.323(A)(3). Id. at ¶ 28-36. The judgment of the trial court was otherwise

affirmed and the matter was remanded for resentencing. Id. at ¶ 50. At resentencing,

Videen was again sentenced to community control sanctions not to exceed five years and

designated a Tier I sex offender.

       {¶ 6} Three and half years later, on October 25, 2016, Videen filed a “Motion for

Order Vacating Prior Conviction Alternatively, Motion for New Trial.” The trial court

reviewed the motion as a Crim.R. 33 motion for new trial given that the court found no

procedural mechanism permitting the requested vacation of Videen’s conviction. Based

on that review, the trial court overruled Videen’s motion by a written decision filed on

January 31, 2017.
                                                                                       -4-


       {¶ 7} On February 23, 2017, Videen filed a notice of appeal from the trial court’s

decision overruling his motion for new trial. Following the submission of his appellant

brief, Videen filed a motion with this court requesting oral argument.       We granted

Videen’s motion and scheduled oral argument for October 24, 2017. At oral argument,

Videen, having discharged his retained appellate counsel, represented himself pro se.

During his pro se oral argument, Videen referred to matters and alleged facts that are

outside the record of this case. Because an appellate court may only consider matters

contained in the record, we are not permitted to consider the matters and facts raised by

Videen during his oral argument.       See State v. Simpson, 2d Dist. Montgomery No.

25202, 2013-Ohio-1695, ¶ 19 (“ ‘[T]his court is unable to consider any evidence not

considered by the trial court.’ It is axiomatic that an appellate court will not consider

matters outside of the appellate record.”), quoting Dayton v. Turic, 2d Dist. Montgomery

No. 20149, 2005-Ohio-131, ¶ 8, quoting Alex-Bell Oxford Limited Partnership v. Woods,

2d Dist. Montgomery No. 16038, 1998 WL 289028, * 4 (June 5, 1998). (Other citation

omitted.) Moreover, this appeal is restricted to the procedural issues raised by the

parties in their respective appellate briefs.



                                   Assignment of Error

       {¶ 8} In support of his appeal, Videen raised a single assignment of error for this

court’s review. Under his assignment of error, Videen contends that the trial court’s

decision overruling his “Motion for Order Vacating Prior Conviction Alternatively, Motion

for New Trial” without a hearing constitutes an abuse of discretion. We disagree.

       {¶ 9} As a preliminary matter, we note that Videen does not claim the trial court
                                                                                       -5-


erred in reviewing his motion solely as a Crim.R. 33 motion for new trial. Such a review

was appropriate since Videen’s motion does not provide any authority for vacating his

conviction and only cites Crim.R. 33(A)(6) and R.C. 2945.79(F) as grounds for receiving

a new trial.

       {¶ 10} R.C. 2945.79(F) provides that:

       A new trial, after a verdict of conviction, may be granted on the application

       of the defendant for any of the following causes affecting materially his

       substantial rights:

       ***

       (F) When new evidence is discovered material to the defendant, which he

       could not with reasonable diligence have discovered and produced at the

       trial. When a motion for a new trial is made upon the ground of newly

       discovered evidence, the defendant must produce at the hearing of said

       motion, in support thereof, the affidavits of the witnesses by whom such

       evidence is expected to be given, and if time is required by the defendant

       to procure such affidavits, the court may postpone the hearing of the motion

       for such length of time as under all the circumstances of the case is

       reasonable.    The prosecuting attorney may produce affidavits or other

       evidence to impeach the affidavits of such witnesses.

       {¶ 11} Similarly, Crim.R. 33(A)(6) provides that:

       A new trial may be granted on motion of the defendant for any of the

       following causes affecting materially his substantial rights:

       ***
                                                                                           -6-


       (6) When new evidence material to the defense is discovered which the

       defendant could not with reasonable diligence have discovered and

       produced at the trial. When a motion for a new trial is made upon the

       ground of newly discovered evidence, the defendant must produce at the

       hearing on the motion, in support thereof, the affidavits of the witnesses by

       whom such evidence is expected to be given, and if time is required by the

       defendant to procure such affidavits, the court may postpone the hearing of

       the motion for such length of time as is reasonable under all the

       circumstances of the case. The prosecuting attorney may produce affidavits

       or other evidence to impeach the affidavits of such witnesses.

       {¶ 12} Pursuant to Crim.R. 33(B), motions for new trial based on newly discovered

evidence “shall be filed within 120 days after the day upon which the verdict was rendered,

or the decision of the court where trial by jury has been waived.” Similarly, motions

based on other sections of the rule, i.e., Crim.R. 33(A)(1) through (5), must be filed within

14 days after the verdict or trial court’s decision was rendered. Crim.R. 33(B).

       {¶ 13} In order to file a motion for new trial after the expiration of the time periods

specified in Crim.R. 33(B), a defendant must first seek leave of the trial court to file a

delayed motion. State v. Lanier, 2d Dist. Clark No. 2009 CA 84, 2010-Ohio-2921, ¶ 15,

citing State v. Warwick, 2d Dist. Champaign No. 01CA33, 2002 WL 1585663, *2 (July 19,

2002); State v. Parker, 178 Ohio App.3d 574, 2008-Ohio-5178, 899 N.E.2d 183, ¶ 16

(2d Dist.).   “To obtain leave, defendant must demonstrate by clear and convincing

evidence that he or she was unavoidably prevented from timely filing the motion for a new

trial or discovering the new evidence within the time period provided by Crim.R. 33(B).”
                                                                                          -7-

(Citations omitted.) Warwick at *2. “A defendant is entitled to a hearing on a motion for

leave to seek a new trial if he submits documents that on their face support his claim of

being unavoidably prevented from meeting Crim.R. 33’s time requirement.” State v.

Hiler, 2d Dist. Montgomery No. 27364, 2017-Ohio-7636, ¶ 12, citing Lanier, at ¶ 16.

      {¶ 14} “ ‘[A] party is unavoidably prevented from filing a motion for new trial if the

party had no knowledge of the existence of the ground supporting the motion for new trial

and could not have learned of the existence of that ground within the time prescribed for

filing the motion for new trial in the exercise of reasonable diligence.’ ” Parker at ¶ 16,

quoting State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984).

“[A] defendant fails to demonstrate that he or she was unavoidably prevented from

discovering new evidence when he would have discovered that information earlier had

he or she exercised due diligence and some effort.” State v. Lenoir, 2d Dist. Montgomery

No. 26846, 2016-Ohio-4981, ¶ 24, citing State v. Metcalf, 2d Dist. Montgomery No. 26101,

2015-Ohio-3507, ¶ 11, citing Warwick.

      {¶ 15} “A trial court’s decision on a Crim.R. 33 motion for a new trial will not be

reversed absent an abuse of discretion.” State v. Gillispie, 2d Dist. Montgomery No.

24456, 2012-Ohio-1656, ¶ 31, citing State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54

(1990), paragraph one of the syllabus; State v. Matthews, 81 Ohio St.3d 375, 378, 691

N.E.2d 1041 (1998). “ ‘Abuse of discretion’ has been defined as an attitude that is

unreasonable, arbitrary or unconscionable.” (Citation omitted.) AAAA Enterprises, Inc.

v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

N.E.2d 597 (1990).

      {¶ 16} In overruling Videen’s motion for new trial, the trial court found that Videen’s
                                                                                            -8-


motion was filed beyond the 120-day time limitation that applies to motions based on

newly discovered evidence under Crim.R. 33(A)(6). To the extent that Videen’s motion

may have implicated sections (1) through (5) of Crim.R. 33(A), the trial court also held

that the motion was filed beyond the 14-day time limitation applicable to those sections.

In addition, the trial court found that Videen failed to provide clear and convincing proof

that he was unavoidably prevented from timely filing his motion and from discovering the

alleged new evidence on which his motion is based.

       {¶ 17} Having reviewed the record, we find no abuse of discretion in the trial court’s

decision. The record indicates that Videen filed his motion for new trial on October 25,

2016, four and a half years after the trial court issued its guilty decision on April 18, 2012.

Accordingly, it is clear that Videen filed his motion well beyond the time limitations

provided for in Crim.R. 33(B). Despite his untimeliness, Videen never filed a motion for

leave to file out of time and never provided the trial court with a reason, let alone clear

and convincing proof that he had been unavoidably prevented from filing his motion in a

timely fashion. Accordingly, a hearing on the untimely motion was not required.

       {¶ 18} In addition to its untimeliness, Videen’s motion for new trial is not based on

any newly discovered evidence. In the motion, Videen argued that there may be a video

or audio recording of police officers questioning him in the back of a cruiser, and that he

never received a copy of the purported recording for trial. However, because Videen

admitted that the existence of any such recording is unknown, it cannot be said that he

discovered any new evidence for trial. Moreover, if any such recording did exist, there

was nothing preventing Videen from attempting to locate it prior to trial or within 120 days

of being found guilty.
                                                                                          -9-


       {¶ 19} Videen raised several other issues in his motion for new trial that the trial

court found irrelevant to the pertinent decisions it made, those decisions being that the

search of Videen’s computer was constitutional and that his possession of the images in

question violated R.C. 2907.323(A)(3). After thoroughly reviewing the issues raised by

Videen, we again find no abuse of discretion in the trial court’s finding. The various

issues in Videen’s motion are indeed irrelevant and are of such a nature that Videen

would have been aware of them prior to or during his trial. As a result, Videen cannot

establish that he was unavoidably prevented from discovering the issues for purposes of

filing his untimely motion for new trial.

       {¶ 20} We further find that the issues raised by Videen are barred by res judicata,

as he could have raised them in his prior direct appeal. See State v. Russell, 10th Dist.

Franklin No. 04AP-1149, 2005-Ohio-4063, ¶ 6-7 (affirming denial of appellant’s motion

for new trial, without a hearing, based on res judicata); State v. Butler, 2d Dist. Clark No.

2717, 1991 WL 116659, *1 (June 26, 1991) (finding res judicata barred appellant from

raising issues in his motion for new trial that could have been raised in his direct appeal).

       {¶ 21} Given that we find no abuse of discretion in the trial court’s decision

overruling Videen’s motion for new trial, Videen’s sole assignment of error is overruled.



                                            Conclusion

       {¶ 22} Having overruled Videen’s sole assignment of error, the judgment of the

trial court is affirmed.

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

DONOVAN, J. and FROELICH, J., concur.
                         -10-




Copies mailed to:

Mathias H. Heck, Jr.
Sarah E. Hutnik
Lance Videen
Hon. Erik Blaine
Charles W. Slicer, III
