[Cite as State v. Nuhfer, 2016-Ohio-1478.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                     Court of Appeals No. L-15-1013

        Appellee                                  Trial Court No. CR0200602652

v.

William D. Nuhfer, II                             DECISION AND JUDGMENT

        Appellant                                 Decided: April 8, 2016

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

        W. Alex Smith, for appellant.

                                             *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a December 30, 2014 judgment of the Lucas County

Court of Common Pleas, which denied appellant’s request for leave to file a Crim.R. 33

motion for a new trial in connection to a 2004 murder case, finding that appellant failed

to satisfy the requisite evidentiary burden to warrant the action.
         {¶ 2} This case arises from a 2004 murder in Toledo. On March 14, 2007,

appellant was found guilty of one count of murder, in violation of R.C. 2903.02(A). On

June 30, 2014, appellant filed a request for leave to file a Crim.R. 33 motion for a new

trial. It was denied. For the reasons set forth below, this court affirms the judgment of

the trial court.

         {¶ 3} Appellant, William Nuhfer, sets forth the following two assignments of

error:

                1. The trial court erred when it ruled on the merits of a motion for

         new trial rather than solely deciding if there was good cause to allow filing

         of a Criminal Rule 33(A)(6) motion after 120 days since the verdict.

                2. The trial court erred when it denied the defendant an evidentiary

         hearing on the request for leave to file a motion for a new trial.

         {¶ 4} The following undisputed facts are relevant to this appeal. On July 12,

2004, an employee of Hirzel Brothers Florists discovered the naked body of a woman in a

pile of sawdust at the rear of the business. The murder investigation determined that the

victim had been killed in the location where her body was discovered. Investigators

recovered the victim’s TARTA bus card, bus schedules, and her shorts at the crime scene.

         {¶ 5} The victim’s autopsy revealed that she was murdered in a brutal manner.

The autopsy reflected that she was beaten, then strangled, and then stabbed to death.

         {¶ 6} The victim sustained a fractured hyoid bone and bruising on the right side of

her neck, indicia of the manual strangulation. There were multiple contusions on the




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right shoulder, the left side of the chest, and the left breast. There were multiple signs of

trauma on the right arm, the right thigh, the left ankle, and the left hand.

       {¶ 7} The autopsy showed that following the beating and strangulation, the victim

was stabbed three times. The first stab wound pierced the left internal jugular vein, the

second went through the left ventricle of her heart, and the third stab wound went into the

victim’s breast tissue. The autopsy concluded that the left ventricle stabbing is what

killed the victim. Rectal, oral, and vaginal swabs were retrieved in the autopsy for DNA

analysis.

       {¶ 8} The investigating detective subsequently obtained the video surveillance

footage of the relevant timeframe from a Stop & Go located directly across the street

from the scene of the murder. It showed appellant at the store at the same time as the

victim. In conjunction with this, appellant’s DNA matched the rectal swab taken from

the victim.

       {¶ 9} In conjunction with the above, a federal prisoner who was previously housed

with appellant in jail, testified that appellant had admitted to him that he had engaged in

intercourse with the victim and killed her when she resisted his attempt at robbing her.

Notably, the witness furnished specific details of the murder that were never released to

the public.

       {¶ 10} On July 26, 2006, appellant was indicted on one count of rape, in violation

of R.C. 2907.02(A)(2), a felony of the first degree, one count of aggravated robbery, in

violation of R.C. 2911.01(A)(3), a felony of the first degree, and one count of murder, in




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violation of R.C. 2903.01(B). Following a bench trial, appellant was convicted of the

lesser included offense of murder, in violation of R.C. 2903.02(A), an unclassified

felony. Appellant was found not guilty on the remaining charges. Appellant was

sentenced to a term of incarceration of fifteen years to life, consecutive to a separate

prison term being served for subsequent felony convictions on separate crimes.

       {¶ 11} Eight years later, on June 30, 2014, appellant filed a request for leave to file

an untimely motion for new trial pursuant to Crim.R. 33. On December 30, 2014, it was

denied. This appeal ensued.

       {¶ 12} In the first assignment of error, appellant contends that the trial court erred

when it denied his request for leave to file an untimely motion for a new trial and found

no meritorious basis for a new trial. We do not concur.

       {¶ 13} Under Ohio law, “A motion for a new trial is addressed to the sound

discretion of the trial court, and will not be reversed absent an abuse of discretion.” State

v. Schiebel, 55 Ohio St.3d 71, 76, 564 N.E.2d 54 (1990). An abuse of discretion

“connotes more than a mere error of law or judgment; it implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

       {¶ 14} Crim.R. 33 sets forth the necessary requirements that must be met when

filing a motion for a new trial:

              (B) Application for a new trial shall be made by motion which,

       except for the cause of newly discovered evidence, shall be filed within




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       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.

                 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} In addition, Crim.R. 33(C) mandates that appellant must attach supporting

affidavits.

       {¶ 16} The record reflects no prejudice to appellant in the denial of his request for

leave to file an untimely motion for a new trial. The testimony of his former cellmate,

and the accompanying likelihood of a sentencing accommodation, was well known to all

parties throughout the case. Contrary to appellant’s suggestion, none of this constituted




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newly discovered evidence. Further, ample additional compelling evidence of guilt was

presented at trial.

       {¶ 17} Lastly, appellant failed to attach the requisite affidavits supporting the

motion as mandated by Crim.R. 33. Accordingly, we find appellant’s first assignment of

error not well-taken.

       {¶ 18} In the second assignment of error, appellant contends that the trial court

erred when it denied appellant an evidentiary hearing. We do not concur.

       {¶ 19} It is well-established under Ohio law that it lies within the trial court’s

discretion whether to grant an evidentiary hearing when there is a motion for a new trial.

State v. Hill, 64 Ohio St.3d 313, 333, 595 N.E.2d 884 (1992). “In the absence of a clear

showing of abuse such decision will not be disturbed.” Id.

       {¶ 20} As previously discussed, appellant’s former cellmate receiving a sentencing

accommodation is not new evidence and, as such, would not have changed the outcome.

Accordingly, we find appellant’s second assignment of error not well-taken.

       {¶ 21} Wherefore, the judgment of the Lucas County Court of Common Pleas is

hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R.

24.


                                                                          Judgment affirmed.




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                                                                      State v. Nuhfer
                                                                      C.A. No. L-15-1013




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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