[Cite as State v. Houdeshell, 2020-Ohio-3768.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 5-20-05

        v.

BRENT R. HOUDESHELL,                                      OPINION

        DEFENDANT-APPELLANT.




                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2016 CR 00108

                                      Judgment Affirmed

                              Date of Decision: July 20, 2020




APPEARANCES:

        Gene P. Murray for Appellant

        Steven M. Powell for Appellee
Case No. 5-20-05


PRESTON, J.

          {¶1} Defendant-appellant, Brent R. Houdeshell (“Houdeshell”), appeals the

January 6, 2020 judgment of the Hancock County Court of Common Pleas denying

his motion for leave to file a motion for a new trial. For the reasons that follow, we

affirm.

          {¶2} This matter originates with Houdeshell’s convictions for various

charges related to the death of B.F., the minor child of Houdeshell’s on-again, off-

again girlfriend. On the evening of March 31, 2016, Houdeshell called 9-1-1 to

report that B.F. had fallen out of his crib and was unresponsive. State v. Houdeshell,

3d Dist. Hancock No. 5-18-02, 2018-Ohio-5217, ¶ 3. B.F. was later pronounced

dead at the hospital. Id. An autopsy revealed that B.F. had sustained a number of

severe injuries, including a skull fracture, a brain contusion, and damage to his liver

and lung. Id. Houdeshell was subsequently indicted on one count of murder, one

count of endangering children, and one count of tampering with evidence. Id. at ¶

4. The case proceeded to a jury trial, and on January 17, 2018, the jury found

Houdeshell guilty of all three counts. Id. at ¶ 5. Houdeshell was sentenced to an

indeterminate term of life in prison with parole eligibility after 17 years. Id. at ¶ 6.

On December 26, 2018, this court affirmed Houdeshell’s convictions and sentence.

Id. at ¶ 54.




                                          -2-
Case No. 5-20-05


       {¶3} On October 16, 2019, Houdeshell filed a motion for a new trial. (Doc.

No. 254). In support of his motion for a new trial, Houdeshell explained that he had

discovered new evidence material to his defense and that such newly discovered

evidence could not with reasonable diligence have been discovered or presented at

his trial. (Id.). The alleged newly discovered evidence is the confession of Kathy

A. Moore (“Moore”), who Houdeshell claims was “the babysitter at all pertinent

times for [B.F.]” (Id.). In support of his motion, Houdeshell submitted a copy of

Moore’s alleged March 31, 2018 signed written confession, which was made in the

presence of police officers from the Findlay Police Department. (Doc. No. 254,

Defendant’s Ex. A). In her confession, Moore takes responsibility for causing the

injuries that led to B.F.’s death. (Id.). Houdeshell requested that a hearing be held

on his motion. (Doc. No. 254).

       {¶4} On November 15, 2019, the State filed a memorandum in opposition to

Houdeshell’s motion for a new trial. (Doc. No. 256). In its memorandum, the State

argued that Houdeshell’s motion should be denied because the motion was untimely

and Houdeshell did not request leave of court to file the untimely motion. (Id.). The

State also maintained that Houdeshell “utterly failed to meet his burden for a new

trial and said motion does not warrant a hearing on the same.” (Id.).

       {¶5} On November 22, 2019, Houdeshell filed a motion requesting that his

previous motion for a new trial be amended to and considered as a motion for leave


                                         -3-
Case No. 5-20-05


to file a motion for a new trial. (Doc. No. 257). In this motion, Houdeshell

“incorporate[d] by reference the entire body of [the] previously filed * * * motion

for a new trial,” including his request for a hearing. (Id.).

       {¶6} On January 6, 2020, the trial court denied Houdeshell’s motion for leave

to file a motion for a new trial. (Doc. No. 259).

       {¶7} Houdeshell filed a notice of appeal on February 4, 2020. (Doc. No.

260). He raises one assignment of error for our review.

                                Assignment of Error

       The trial court abused its discretion by denying the defendant-
       appellant’s motion for leave of court for a new trial, and by
       denying the defendant-appellant a hearing on said motion, when
       the trial court in its discretion, prejudicially decided that “to this
       day,” (the January 6, 2020 date of the decision) “he (defendant-
       appellant) has never explained his abiding silence even though
       this vital information might exculpate him,” with the trial court
       in the same decision having denied the defendant-appellant’s
       motion for a hearing in which to do so.

       So to this day, defendant-appellant respectfully submits that by
       the trial court’s aforementioned abuse of its discretion,
       defendant-appellant Houdeshell was denied the fundamental and
       substantial right to remain silent, as guaranteed to any innocent
       person by the Fifth Amendment to the Constitution of the United
       States, applicable to the states through the Due Process Clause of
       the Fourteenth Amendment to the United States Constitution;
       and defendant-appellant Houdeshell was also denied the
       fundamental and substantial right to a fair trial, as guaranteed by
       the Sixth Amendment to the United States Constitution,
       applicable to the states through the Due Process Clause of the
       Fourteenth Amendment to the United States Constitution, and by
       Article I, Section 10 of the Constitution of the State of Ohio.


                                          -4-
Case No. 5-20-05


       {¶8} In his assignment of error, Houdeshell argues that the trial court abused

its discretion both by denying his motion for leave to file a motion for a new trial

and by doing so without holding a hearing. Houdeshell contends that he should

have been granted leave to file a motion for a new trial because he did not learn of

Moore’s confession until December 17, 2018—well after the cutoff for filing a

timely motion for a new trial based on newly discovered evidence. He also

“respectfully submit[s] as beyond belief in the truth, if it be told, for the trial court

to prejudicially pass judgment on [the] confessing witness without hearing from her,

and more importantly, without even the willingness to hold a hearing to so hear from

her, in sworn testimony on the record.” (Appellant’s Brief at 7). Lastly, Houdeshell

claims that the trial court violated his privilege against self-incrimination because,

in denying his motion for leave, the trial court faulted him for failing to disclose,

either at trial or before trial, his knowledge of Moore’s alleged role in causing B.F.’s

death. (See id. at 11-13, 15).

       {¶9} “Motions for a new trial are governed by Crim.R. 33.”               State v.

Cunningham, 3d Dist. Allen No. 1-15-61, 2016-Ohio-3106, ¶ 28, citing State v.

Keith, 192 Ohio App.3d 231, 2011-Ohio-407, ¶ 37 (3d Dist.). Crim.R. 33 provides,

in relevant part:

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

       of the following causes affecting materially his substantial rights:


                                          -5-
Case No. 5-20-05


       ***

       (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.

Crim.R. 33(A)(6).

       {¶10} Under Crim.R. 33(B), “[m]otions 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.” In this case, the jury rendered its verdicts on January 17, 2018.

As a result, to be considered timely, Houdeshell would have had to file a motion for

a new trial no later than May 17, 2018. However, because Houdeshell did not file

a motion for a new trial on or before May 17, 2018, Houdeshell’s attempt to receive

a new trial was required to proceed according to the rules and procedures governing

untimely motions for a new trial.

       {¶11} “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. DeVaughns, 2d Dist. Montgomery No.

27727, 2018-Ohio-1421, ¶ 18, citing 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), and citing State v. Parker, 178


                                         -6-
Case No. 5-20-05


Ohio App.3d 574, 2008-Ohio-5178, ¶ 16 (2d Dist.). “‘To obtain leave, [a] 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).’” Id., quoting Warwick

at *2; Crim.R. 33(B). “‘A party is “unavoidably prevented” from filing a motion

for a new trial if the party had no knowledge of the existence of the ground

supporting the motion and could not have learned of that existence within the time

prescribed for filing the motion in the exercise of reasonable diligence.’” Keith at ¶

39, quoting State v. Lee, 10th Dist. Franklin No. 05AP-229, 2005-Ohio-6374, ¶ 8.

“The standard of clear and convincing evidence used in Crim.R. 33(B) means ‘that

measure or degree of proof which is more than a mere “preponderance of the

evidence,” but not to the extent of such certainty as is required “beyond a reasonable

doubt” in criminal cases, and which will produce in the mind of the trier of facts a

firm belief or conviction as to the facts sought to be established.’” Id. at ¶ 40,

quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

       {¶12} “We review a trial court’s decision granting or denying a Crim.R.

33(B) motion for leave to file a delayed motion for a new trial under an abuse of

discretion standard.” State v. Keith, 3d Dist. Crawford No. 3-17-01, 2017-Ohio-

5488, ¶ 27, citing State v. Howard, 10th Dist. Franklin No. 15AP-161, 2016-Ohio-

504, ¶ 46. An abuse of discretion is more than a mere error in judgment; it suggests


                                         -7-
Case No. 5-20-05


that a decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62

Ohio St.2d 151, 157-158 (1980).

       {¶13} In denying Houdeshell’s motion for leave to file a motion for a new

trial, the trial court found as follows:

       Houdeshell’s contention that he was unavoidably prevented from

       discovering Moore’s participation in the crime defies logic. Moore’s

       recollection of the events clearly puts Houdeshell at the scene of the

       crime. In Houdeshell’s multiple statements to police, Moore was

       never mentioned. In fact, his explanation of how B.F. suffered his

       injuries suggested the child was alone when he fell from the crib and

       struck his head. A scenario supported by expert trial testimony was

       offered by the defense. If Moore is to be believed, Houdeshell has not

       explained how he was unavoidably prevented or detained from

       divulging her participation in B.F.’s death. There is no compelling

       justification for consideration of Houdeshell’s Motion.

(Doc. No. 259).

       {¶14} After reviewing the record, we conclude that the trial court did not

abuse its discretion by denying Houdeshell’s motion for leave to file a motion for a

new trial. As the trial court recognized, Moore’s account of the events surrounding




                                           -8-
Case No. 5-20-05


B.F.’s death clearly places Houdeshell at the scene of the crime. Her written

confession provides, in relevant part:

       [Houdeshell] was on the phone. I went over to the bedroom. I

       grabbed him up and shook the baby. Then I bumped his head. I

       grabbed him and slammed his head into the wall * * *. I then * * *

       yelled for help. After that, I became mad * * *. I dropped his head

       again. I then left the room. I watched [Houdeshell] drop the baby.

       He then went [to] the bathroom and tried to revive the baby. He held

       the baby up to the shower trying to revive the baby. I grabbed the

       baby up and abussed [sic] him, slamming his body into the bathroom

       wall. Trying to force him to down [sic] into the tub. I held him up by

       his face. Left him fall on the bathroom [sic]. Picked him back up and

       forced him into his pajammies [sic]. Then [Houdeshell] helped me

       put him to bed and I kissed him on the head and left the room.

(Doc. No. 254, Defendant’s Ex. A).

       {¶15} If Moore’s written confession is true, something that we assume for

purposes of Houdeshell’s argument, then Houdeshell has fallen far short of proving

by clear and convincing evidence that he was unavoidably prevented from timely

filing a motion for a new trial based on newly discovered evidence. At minimum,

Moore’s confession would support that since the date of B.F.’s death, Houdeshell


                                         -9-
Case No. 5-20-05


knew that Moore was with B.F. at or near the time that he sustained the injuries that

caused his death. In fact, Moore’s confession, if true, could support that Houdeshell

was at all times aware that Moore was actually responsible for most of B.F.’s

injuries.

       {¶16} In addition, the record reflects that Houdeshell was put on notice that

Moore might have information beneficial to his defense long before May 17, 2018.

In a July 14, 2017 pretrial discovery submission, the State listed Moore as a potential

witness, provided Houdeshell with her address, and gave Houdeshell access to

statements Moore made during the course of the investigation, including one

statement in which Moore said that she was “there that night.” (See Doc. No. 82);

(See Doc. No. 256, State’s Ex. 1). Therefore, assuming the truth of Moore’s

confession, it cannot be said that Houdeshell was “unavoidably prevented” from

timely filing a motion for a new trial because the record demonstrates that he had

knowledge of the existence of the grounds supporting his motion for a new trial well

before the expiration of the 120-day period for filing a timely motion. Furthermore,

the record suggests that Houdeshell could with reasonable diligence have learned of

the existence of these grounds within the 120-day period.

       {¶17} Moreover, we conclude that the trial court did not abuse its discretion

by denying Houdeshell’s motion for leave without holding a hearing. Like a trial

court’s ruling on a motion for leave to file a motion for a new trial, “‘[t]he decision


                                         -10-
Case No. 5-20-05


whether to grant or hold an evidentiary hearing on a defendant’s request for leave

to file a delayed motion for new trial falls within the sound discretion of the trial

court and will not be disturbed on appeal absent an abuse of that discretion.’” State

v. Armengau, 10th Dist. Franklin No. 16AP-355, 2017-Ohio-197, ¶ 33, quoting

State v. Anderson, 10th Dist. Franklin No. 13AP-831, 2014-Ohio-1849, ¶ 15, citing

State v. Caulley, 10th Dist. Franklin No. 12AP-100, 2012-Ohio-2649, ¶ 15, citing

State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, ¶ 19 (2d Dist.), and

citing State v. Carson, 10th Dist. Franklin No. 07AP-492, 2007-Ohio-6382, ¶ 22.

“‘A criminal defendant “is only entitled to a hearing on a motion for leave to file a

motion for a new trial if he submits documents which, on their face, support his

claim that he was unavoidably prevented from timely discovering the evidence at

issue.”’” Id., quoting State v. Ambartsoumov, 10th Dist. Franklin No. 12AP-878,

2013-Ohio-3011, ¶ 13, quoting State v. Cleveland, 9th Dist. Lorain No.

08CA009406, 2009-Ohio-397, ¶ 54, citing McConnell at ¶ 7. “‘Thus, “no such

hearing is required, and leave may be summarily denied, where neither the motion

nor its supporting affidavits embody prima facie evidence of unavoidable delay.”’”

Id., quoting Ambartsoumov at ¶ 13, quoting State v. Peals, 6th Dist. Lucas No. L-

10-1035, 2010-Ohio-5893, ¶ 23. Here, for the reasons just discussed, neither

Houdeshell’s motion for leave nor Moore’s confession submitted in support of his

motion for leave alleges facts that would justify Houdeshell’s failure to timely file


                                        -11-
Case No. 5-20-05


a motion for a new trial. Accordingly, we conclude that the trial court did not abuse

its discretion by denying Houdeshell’s motion for leave without holding a hearing.

See id.

          {¶18} Finally, contrary to Houdeshell’s argument, the trial court did not

violate his privilege against self-incrimination when it denied his motion for leave.

Critically, the trial court’s statement about Houdeshell’s “abiding silence” was not

made in relation to its decision to deny his motion for leave. Rather, this statement

was made in the context of the trial court’s alternative conclusion that, even if

Houdeshell were granted leave to file a motion for a new trial, it would deny

Houdeshell’s motion for a new trial because Moore’s confession is not newly

discovered evidence. (See Doc. No. 259). Thus, even if the trial court committed

error by referencing or relying on Houdeshell’s “abiding silence,” such error would

be harmless because this statement had no bearing on the trial court’s decision to

deny Houdeshell’s motion for leave.         In addition, we do not believe that

Houdeshell’s rights were violated by the trial court’s statement that Houdeshell “has

not explained how he was unavoidably prevented or detained from divulging her

participation in B.F.’s death” or its observation that Houdeshell never mentioned

Moore’s presence in any of his pretrial statements. Instead of evincing the trial

court’s negative view of Houdeshell’s decision to exercise his privilege against self-

incrimination, these statements serve only to underscore the conclusion that if


                                         -12-
Case No. 5-20-05


Moore’s confession is true, as Houdeshell claims, Houdeshell had knowledge of

Moore’s involvement at all times relevant to his case but utterly failed to provide

evidence explaining why he was prevented from bringing this to the court’s

attention for more than three and a half years. In sum, these statements do not affect

our conclusion that the trial court did not abuse its discretion by denying

Houdeshell’s motion for leave without holding a hearing.

       {¶19} Houdeshell’s assignment of error is overruled.

       {¶20} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

SHAW, P.J. and ZIMMERMAN, J., concur.

/jlr




                                        -13-
