[Cite as State v. Morris, 2014-Ohio-4114.]




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


State of Ohio                                    Court of Appeals No. L-14-1097

        Appellee                                 Trial Court No. CR0200601681

v.

Maurice Dee Morris                               DECISION AND JUDGMENT

        Appellant                                Decided: September 19, 2014

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        David F. Cooper, Assistant Prosecuting Attorney, for appellee.

        Kenneth J. Rexford, for appellant.

                                             *****

        OSOWIK, J.

        {¶ 1} This is an accelerated appeal from a December 20, 2013 judgment of the

Lucas County Court of Common Pleas, which denied appellant’s Crim.R. 33(B) motion

for a new trial. On August 22, 2006, following a jury trial, appellant was convicted of
one count of assault, in violation of R.C. 2903.13, a misdemeanor of the first degree. For

the reasons set forth below, this court affirms the judgment of the trial court.

         {¶ 2} Appellant, Maurice Dee Morris, sets forth the following sole assignment of

error:

               I. The Trial Court abused its discretion in Denying the Defense

         Motion for Leave to File a Delayed Motion for a New Trial.

         {¶ 3} The following undisputed facts are relevant to this appeal. On March 5,

2006, an incident transpired between appellant and another individual in a church parking

lot in the vicinity of Airport Highway and Wenz Road located in the city of Toledo.

         {¶ 4} On March 30, 2006, appellant was indicted on one count of perjury, in

violation of R.C. 2921.11, a felony of the third degree, and one count of assault, in

violation of R.C. 2903.13, a misdemeanor of the first degree, in connection to the

March 5, 2006 parking lot incident.

         {¶ 5} Although the perjury count was subsequently dismissed, the assault charge

proceeded to jury trial on August 21, 2006. On August 22, 2006, appellant was found

guilty of the remaining count of misdemeanor assault. Appellant filed a direct appeal of

the assault conviction to this court. The appeal was dismissed in State v. Morris, 6th

Dist. Lucas No. L-06-1377. On July 31, 2008, the Ohio Supreme Court denied review of

the matter.

         {¶ 6} Over four years later, on November 27, 2012, appellant filed a motion

captioned as a “MOTION OF THE DEFENSE FOR LEAVE TO FILE MOTION FOR




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NEW TRIAL.” Significantly, appellant now claims that the underlying Crim.R. 33(B)

motion was not actually a motion for a new trial, but merely constituted a motion for

leave. Notably, the motion expressly stated, “Accordingly, a new trial is request.” In

conjunction with this, the motion was explicitly filed, “pursuant to Crim.R. 33(B).”

Lastly, we note that the standard of proof pursuant to Crim.R. 33(B) applies to the motion

filed pursuant to it in this case regardless of how appellant labels the motion.

       {¶ 7} Crim.R. 33(B) establishes in pertinent part:

              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.

       {¶ 8} Appellant’s Crim.R. 33(B) motion was supported by an October 13, 2012

affidavit of appellant stating in relevant part, “In the following months after my

conviction in August 2006, I was approached by Mrs. Connie Jones regarding my case,”

an unsigned sheriff’s report dated March 9, 2006, an August 7, 2009 letter from

Antoinette Harris in which she claimed to have had an October 2006 discussion with a

witness of the assault at a Red Lobster restaurant in which the witness allegedly indicated




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to Harris that he did not witness the assault, and an August 7, 2009 statement from

Dwight Steele claiming to have had a conversation with a witness of the assault allegedly

conveying that the assault victim struck appellant before appellant struck the victim. On

December 20, 2013, the trial court denied appellant’s Crim.R. 33(B) motion. In order for

appellant’s motion to prevail, regardless of whether appellant characterizes it as a motion

for a new trial or a motion for leave, the evidence submitted must have shown by clear

and convincing proof that he was unavoidably prevented from the discovery of the

evidence.

       {¶ 9} In the single assignment of error, appellant asserts that the trial court erred in

denying appellant’s Crim.R. 33(B) motion. In support, as referenced above, appellant

attempts to draw a distinction relevant to this appeal between filing a motion for a new

trial and filing a motion for leave to file a motion for a new trial. We are not persuaded.

       {¶ 10} The record clearly and unambiguously reflects that appellant’s motion

stated at the outset that appellant, “[M]oves this Honorable Court, pursuant to Criminal

Rule 33(B) * * * based upon newly discovered evidence over 120 days after the verdict.”

In order to justify an untimely Crim.R. 33(B) filing, such as the one underlying the

instant case, it must be shown, “by clear and convincing proof that the defendant was

unavoidably prevented from the discovery of the evidence upon which he must rely.”

       {¶ 11} Appellant’s motion in this case was supported by an October 12, 2013

affidavit of appellant generically referencing a conversation he had with a woman about

this case, “in the months after trial.” The timeframe referenced being close to the time of




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the incident, so as to not suggest any unavoidable prevention of discovery. The motion

was also accompanied by two separate letters by two separate individuals, both dated

August 7, 2009, each referencing 2006 hearsay conversations between the parties

executing the August 7, 2009 statements and other parties. Again, no clear and

convincing evidence in connection to these letters demonstrated unavoidable prevention

of discovery. Lastly, a March 9, 2006 memo from a witness to appellant’s employer was

attached. There was likewise no clear and convincing evidence in connection to the

March 9, 2006 memo directed to appellant’s employer several days after the incident

showing unavoidable prevention of discovery.

       {¶ 12} The record of evidence in this matter is devoid of any evidence that could

conceivably be construed so as to constitute clear and convincing proof that the defendant

was unavoidably prevented from the discovery of the evidence upon which he must rely,

so as to potentially warrant the granting of the motion regardless of any variable labeling

or framing of the motion. The evidence submitted cannot be construed in any way so as

to satisfy the requisite Crim.R. 33(B) standard of proof applicable to this case. As such,

we find that the trial court properly denied appellant’s motion made pursuant to App.R.

33(B). Appellant’s sole assignment of error is found not well-taken.

       {¶ 13} Wherefore, we find that substantial justice has been done in this matter.

The judgment of the Lucas County Court of Common Pleas is hereby affirmed.

Appellant is ordered to pay the cost of this appeal pursuant to App.R. 24.


                                                                        Judgment affirmed.



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                                                                      State v. Morris
                                                                      C.A. No. L-14-1097




       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
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, 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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