[Cite as State v. McCoy, 2015-Ohio-5195.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                    JUDGES:
                                                 Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                       Hon. William B. Hoffman, J.
                                                 Hon. Craig R. Baldwin, J.
-vs-
                                                 Case No. 15-CA-58
CHARLES MCCOY

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Licking County Court of
                                              Common Pleas, Case No. 04CR380


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                        December 8, 2015


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


KENNETH W. OSWALT                             CHARLES MCCOY, PRO SE
Licking County Prosecutor                     #488128
20 S. Second Street, Fourth Floor             c/o London Correctional Institution
Newark, Ohio 43055                            P.O. Box 69
                                              London, Ohio 43140
Licking County, Case No. 15-CA-58                                                       2

Hoffman, J.

       {¶1}      Defendant-appellant Charles McCoy appeals the July 8, 2015 Judgment

Entry entered by the Licking County Court of Common Pleas. Plaintiff-appellee is the

state of Ohio.

                             STATEMENT OF THE FACTS AND CASE

       {¶2}      In 2005, Appellant was convicted of attempted murder, attempted robbery,

and kidnapping. Appellant filed a direct appeal from his conviction in State v. McCoy,

Licking 05-CA-29, 2006-Ohio-56.

       {¶3}      On March 4, 2013, Appellant filed a Motion Requesting Corrective

Sentencing in accordance with R.C. 2941.25. The trial court denied the motion via

Judgment Entry entered July 10, 2013. This Court affirmed the trial court's July 10,

2013 Judgment Entry on appeal in State v. McCoy, Licking App. No. 13 CA 63, 2013-

Ohio-5007.

       {¶4}      On May 28, 2015, pursuant to Criminal Rule 33, Appellant filed a motion

for new trial. The trial court denied the motion via Judgment Entry entered July 8, 2015.

       {¶5}      Appellant appeals, assigning as error:

       {¶6}      “I. THE LICKING CO. COURT OF COMMON PLEAS FAILED TO

RECOGNIZE DEFENDANT’S NEWLY DISCOVERED EVIDENCE OF A FALSIFIED

VOLUNTARY STATEMENT FOR POLICE BY AN EYE-WITNESS, HEATHER A.

BONIFANT, IN THE FORM OF HER OWN ADMISSION TO HER CIVIL ATTORNEY

DOCUMENTED IN HER ANSWER IN MCCOY V. MAY, (2014) PRODUCED AND

ATTACHED TO HIS INITIAL MOTION REQUESTING A NEW TRIAL UNDER CRIM.

R.33(A) AND (B) AND MADE AVAILABLE TO THE COURT FOR ITS NON-ORAL
Licking County, Case No. 15-CA-58                                            3


HEARING.     THIS CONSTITUTED GROUNDS UNDER CRIM. R. 33 (A) (1),

SUPPORTED BY §R.C. 2945.79 (A), (B), (F) FOR A NEW TRIAL. THE DEFENDANT

HAD ALSO SUPPLIED THE COURT WITH COPIES OF BONIFANT’S FALSIFIED

VOLUNTARY STATEMENT FOR POLICE AND HIS ACTUAL JUDGMENT ENTRY

FROM HIS SENTENCING SO TO SHOW THE MANIFEST CONTRADICTIONS AND

DISCREPANCIES. SEE, MCCOY V. BONIFANT, #15CA8 (REMANDED BY THE 5TH

DISTRICT COURT). CURRENTLY PENDING BACK BEFORE THE COURT OF

COMMON PLEAS, #14CV1083.

      {¶7}   “II. (A): THE LICKING CO. COURT OF COMMON PLEAS FAILED TO

RECOGNIZE THE DEFENDANT’S NEWLY DISCOVERED EVIDENCE OF A

DOCUMENTED       ATTESTING     TO     PROSECUTOR    MISCONDUCT        BY   THE

PROSECUTING      ATTORNEY      KENNETH     W.   OSWALT   DURING   A    §309.05

DEPOSITION HEARING IN 2014 WHERE HE DEPOSED BOTH MARCIA J. MCCOY

AND PATRICIA J. MALONE.             THIS WAS AN ADMISSION OF COMPLETE

PROSECUTOR MISCONDUCT BY HIM PERSONALLY THAT HAD BEEN CAPTURED

AND DOCUMENTED BY THE STENOGRAPHER, PRODUCED AND ATTACHED TO

DEFENDANT’S INITIAL MOTION REQUESTING A NEW TRIAL UNDER CRIM. R. 33

(A) AND (B), SUPPORTED BY §2945.79 (A), (B), (F).

      {¶8}   “II. (B): THE LICKING CO. COURT OF COMMON PLEAS FAILED TO

RECOGNIZE DEFENDANT’S NEWLY DISCOVERED EVIDENCE EXPOSING, NOT

JUST THE IRREGULARITIES OF USING A COMPETENCY REPORT AGAINST A

DEFENDANT AT TRIAL, BUT THE ILLEGALITIES OF IT AS WELL.                    THIS

MISCONDUCT VIOLATED THE OHIO STATE STATUTE §R.C. 2945.371 (J). THIS IS
Licking County, Case No. 15-CA-58                                                    4


APART OF THE TRIAL TRANSCRIPTS. THIS HAD OCCURRED DURING KENNETH

W. OSWALT’S LINE OF QUESTIONING WITH THE DEFENDANT WHILE HE WAS

ON THE STAND TO DEFEND HIMSELF FROM THE OVER INDICTMENT BY THE

STATE.

                                            I. and II.

      {¶9}   Appellant's assigned errors raise common and interrelated issues;

therefore, we will address the arguments together.

      {¶10} Ohio Criminal Rule 33 governs motions for new trials, and reads,

             (A) Grounds

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

      the following causes affecting materially his substantial rights:

             (1) Irregularity in the proceedings, or in any order or ruling of the

      court, or abuse of discretion by the court, because of which the defendant

      was prevented from having a fair trial;

             (2) Misconduct of the jury, prosecuting attorney, or the witnesses

      for the state;

             (3) Accident or surprise which ordinary prudence could not have

      guarded against;

             (4) That the verdict is not sustained by sufficient evidence or is

      contrary to law. If the evidence shows the defendant is not guilty of the

      degree of crime for which he was convicted, but guilty of a lesser degree

      thereof, or of a lesser crime included therein, the court may modify the
Licking County, Case No. 15-CA-58                                                     5


      verdict or finding accordingly, without granting or ordering a new trial, and

      shall pass sentence on such verdict or finding as modified;

            (5) Error of law occurring at the trial;

            (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.

            (B) Motion for new trial; form, time

            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.
Licking County, Case No. 15-CA-58                                                            6


              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.

       {¶11} The trial court's July 8, 2014 Judgment Entry found Appellant's motion for

new trial untimely as it was not filed within fourteen days of the verdict, or in the case of

newly discovered evidence, within 120 days. Second, the trial court concluded Appellant

had not been unavoidably prevented from timely discovering the asserted “newly

discovered” evidence and filing the motion. Third, the trial court found the motion for

new trial was procedurally deficient in that it did not include any affidavits in support.

       {¶12} By virtue of the two-issue rule, a decision which is supported by one or

more alternate grounds properly submitted is invulnerable to attack on one issue only.

Hampel v. Food Ingredients Specialties, Inc. (2000), 89 Ohio St.3d 169, 185, 729

N.E.2d 726, quoting H.E. Culbertson Co. v. Warden (1931), 123 Ohio St. 297, 303, 175

N.E. 205. We find the trial court properly denied Appellant's motion for new trial as

Appellant did not demonstrate he was unavoidably prevented from discovering any

alleged new evidence. Accordingly, because the trial court properly denied the motion

for new trial as being untimely. Appellant's assignments of error are overruled.
Licking County, Case No. 15-CA-58                                               7


       {¶13} The July 8, 2014 Judgment Entry of the Licking County Court of Common

Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur
