[Cite as State v. Higdon, 2020-Ohio-4012.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                          C.A. No.      19CA0090-M

          Appellee

          v.                                           APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
THEODORE W. HIGDON                                     COURT OF COMMON PLEAS
                                                       COUNTY OF MEDINA, OHIO
          Appellant                                    CASE No.   12CR0731

                                 DECISION AND JOURNAL ENTRY

Dated: August 10, 2020



          SCHAFER, Judge.

          {¶1}   Defendant-Appellant, Theodore Higdon, appeals the judgment entry of the Medina

County Court of Common Pleas denying his motion for leave to file a motion for new trial. We

affirm.

                                                  I.

          {¶2}   We previously set forth the facts of this case in State v. Higdon, 9th Dist. Medina

No. 14CA0014-M, 2015-Ohio-1592. Relevant to this appeal, following a jury trial, Mr. Higdon

was found guilty of rape of a victim under the age of 13 in violation R.C. 2907.02. This Court

affirmed his conviction. Id. at ¶ 21.

          {¶3}   More than five and half years following his conviction, Mr. Higdon filed a pro se

motion for leave to file a motion for a new trial pursuant to Crim.R. 33(B) on the basis of newly

discovered evidence. The State responded in opposition to Mr. Higdon’s motion. The trial court

denied Mr. Higdon’s motion for leave.
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       {¶4}    Mr. Higdon subsequently filed this appeal, raising three assignments of error for

our review.

                                                II.

                                     Assignment of Error I

       Evidence collection failed to follow the normal rules of evidence. [C.H.] was
       allowed to go alone to collect the clothing that allegedly was worn by [Mr.
       Higdon]’s daughter the night of the alleged incident, putting the alleged
       clothing into a paper bag and handing it to the police officer as “gathered
       evidence”. The alleged clothing was found amongst other dirty laundry thus
       contaminating any alleged DNA samples. This failure to follow the rules of
       evidence collection, including chain of custody, are violations of [Mr.
       Higdon]’s Sixth Amendment rights, and his rights of Due Process. This was
       also not brought before the jury prejudicing the decision.

                                     Assignment of Error II

       The unnecessary destruction of the DNA sample swatch prevented [Mr.
       Higdon] to have an independent test done as is his right. Because he was
       denied this right [Mr. Higdon] was never made aware that there was a third
       DNA contributor of amylase that remains unidentified. This violates [Mr.
       Higdon]’s Sixth Amendment rights, and his rights of Due Process under the
       Fifth and Fourteenth Amendments of the U.S. Constitution and analogous
       rights under the Ohio Constitution.

                                    Assignment of Error III

       The State of Ohio withheld the lack of identification of a third contributor of
       amylase, or that there had been a third contributor. Whether this withholding
       of exculpatory evidence was intentional or unintentional, the effect was the
       same; [Mr. Higdon] was denied presenting this evidence to the jury which was
       prejudicial at minimum, but with this evidence the result of the jury’s decision
       could have reasonably come to a different conclusion. That there was a third,
       unidentified contributor of amylase was not presented to the jury nor to [Mr.
       Higdon] all throughout his attempts to overturn this manifest injustice of
       being incarcerated for a crime he did not commit. Thus[, Mr. Higdon’s] rights
       to a fair trial and his due process rights guaranteed under the U.S.
       Constitution under the Sixth, Eighth and Fourteenth amendments and
       analogous Ohio Constitution were violated.

       {¶5}    In his first assignment of error, Mr. Higdon contends that the collection of evidence

in this case “failed to follow the normal rules of evidence.” In his second assignment of error, Mr.
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Higdon argues that he was not made aware of a third DNA contributor on his daughter’s underwear

due to the destruction of the DNA sample swatch resulting in the “flawed presentation of

inconclusive evidence to the jury.” In his third assignment of error, Mr. Higdon contends that the

prosecution mislead the jury when it “withheld the lack of identification of a third contributor of

amylase, or that there had been a third contributor.”

       {¶6}    Crim.R. 33(A)(6) provides that a new trial may be granted upon motion of the

defendant on the grounds that “new evidence material to the defense is discovered which the

defendant could not with reasonable diligence have discovered and produced at the trial.” Pursuant

to Crim.R. 33(B) a motion for a new trial on account of newly discovered evidence must be filed

within 120 days after the verdict is rendered. “A defendant who wishes to file a motion outside

the prescribed time limit must seek leave from the trial court to file a delayed motion for new trial.”

(Internal quotations and citations omitted.) State v. Williams, 9th Dist. Summit No. 28572, 2017-

Ohio-8475, ¶ 8. Such a motion must demonstrate by clear and convincing proof that the defendant

was unavoidably prevented from the discovery of the evidence on which he must rely. Id.; Crim.R.

33(B). Clear and convincing evidence is that “which will produce in the mind of the trier of facts

a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio

St. 469 (1954), paragraph three of the syllabus. An unavoidable delay occurs when a defendant

had no knowledge of the existence of the ground supporting the motion for a new trial and could

not have learned of its existence in the exercise of reasonable diligence within the time required.

Williams at ¶ 9.

       {¶7}    Crim.R. 33(B) does not provide a time limit for the filing of a motion for leave to

file a delayed motion for a new trial on the basis of newly discovered evidence. See Crim.R. 33(B).

However, Ohio courts have adopted a reasonableness standard, and consequently, a trial court may
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require a defendant to file his motion for leave to file a motion for a new trial within a reasonable

amount of time after he discovered the evidence.         State v. Leyman, 9th Dist. Medina No.

14CA0037-M, 2016-Ohio-59, ¶ 9.

       {¶8}    More than five and half years following his conviction, Mr. Higdon moved the trial

court for leave to file a motion for a new trial pursuant to Crim.R. 33(B) arguing that he had

“discovered new evidence that is material and would be substantial ground upon which to permit

him to file a motion for new trial.” The evidence Mr. Higdon asserts to be newly discovered is the

report of a scientific study he claims “showed that labs that test DNA that contained multiple

contributors were most often incorrect.” He further asserted that he was unavoidably prevented

from discovering this evidence prior to his trial because the United States government had withheld

the release of this report and, because he was incarcerated, he was not aware of its subsequent

release until a fellow inmate shared with him a news article about the report. The State responded

in opposition to Mr. Higdon’s motion.

       {¶9}    In its journal entry denying Mr. Higdon’s motion for leave, the trial court noted that

Mr. Higdon had not presented any support for his claim that the United States government had

concealed, suppressed, or withheld the report and stated that Mr. Higdon’s mere discovery of the

report did not entitle him to a new trial. The trial court went on to state that even assuming that

Mr. Higdon was able to show that the report was newly discovered evidence favorable to him and

that he was unavoidably prevented from discovering it, the study would not have altered the

outcome of the trial.

       {¶10} “A trial court’s decision to grant or deny a motion for leave to file a delayed motion

for a new trial will not be reversed on appeal absent an abuse of discretion.” State v. Davis, 9th

Dist. Lorain No. 12CA010256, 2013-Ohio-846, ¶ 6. An abuse of discretion implies the trial court’s
                                                 5


decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983).

       {¶11} A review of Mr. Hidgon’s merit brief shows that he does not raise an argument in

any of his three assignments of error as to how the trial court abused its discretion in denying his

motion for leave to file a motion for a new trial. To an extent such an argument may exist, it is

not this Court’s duty to root it out. Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL

224934, *8 (May 6, 1998), citing App.R. 12(A)(2) and App.R. 16(A)(7). Because Mr. Higdon has

not met his burden to establish error on appeal, we overrule his assignments of error.

                                                III.

       {¶12} Mr. Higdon’s first, second, and third assignments of error are overruled.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.
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      Costs taxed to Appellant.




                                             JULIE A. SCHAFER
                                             FOR THE COURT



CALLAHAN, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

THEODORE W. HIGDON, pro se, Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
