[Cite as State v. Briscoe, 2012-Ohio-4943.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 98414


                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                     HARRY BRISCOE
                                                       DEFENDANT-APPELLANT



                                              JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-487410

        BEFORE: E. Gallagher, J., Stewart, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                      October 25, 2012
FOR APPELLANT

Harry Briscoe, pro se
Inmate No. 530-252
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Mark J. Mahoney
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

       {¶1} This is an accelerated appeal authorized pursuant to App.R. 11.1 and

Loc.App.R. 11.1.

       {¶2} Appellant Harry Briscoe appeals the judgment of the Cuyahoga County

Court of Common Pleas denying his “leave to plead instanter motion for new trial.”

For the following reasons, we affirm.

       {¶3} In 2007, Briscoe was convicted of one count of murder and two counts of

aggravated robbery and was sentenced to an aggregate prison term of 28 years to life.

Appellant brought a direct appeal of his conviction and sentence.     In State v. Briscoe,

8th Dist. No. 89979, 2008-Ohio-6276 (“Briscoe I”), this court affirmed appellant’s

convictions for murder and one count of aggravated robbery and reversed the second

aggravated robbery conviction due to a defective indictment. The judgment of this court

in Briscoe I was affirmed by the Ohio Supreme Court in State v. Briscoe, 124 Ohio St.3d

117, 2009-Ohio-6540, 919 N.E.2d 735.

       {¶4} On February 21, 2012, appellant filed, pro se, a leave to plead instanter

motion for a new trial.   Briscoe argued in his motion that newly discovered evidence, in

the form of a letter written by Charles M. Connor that partially criticizes the quality of

fingerprint evidence offered by the prosecutor, entitled him to a new trial pursuant to

Crim.R. 33(A)(6).
       {¶5} The record reflects that appellant filed a motion to appoint an independent

expert at the state’s expense on March 14, 2007.   The motion sought expenses for Mr.

Connor to examine fingerprint and palmprint evidence and for the state to provide Mr.

Connor with fingerprint evidence in the case.       The trial court granted appellant’s

motion.

       {¶6} Mr. Connor contacted defense counsel by letter, dated April 10, 2007.

That letter is addressed to appellant’s trial counsel, Terri Webb, at the Cuyahoga County

Public Defender’s Office and states in part:

       I have prepared a statement regarding the examination of the evidence
       offered by the prosecutor’s office on Wednesday April 4, 2007 and have
       enclosed a copy for your use in dealing with the defendant.

       {¶7} Following the trial court’s order granting appellant’s motion for the

fingerprint examination, the record contains no mention of the results of Mr. Connor’s

examination.

       {¶8} The trial court denied appellant’s leave to plead instanter motion for new

trial on March 2, 2012. Appellant now appeals, raising two assignments of error.

                                Assignment of Error One

       Appellant received ineffective assistance of counsel in violation of his
       rights pursuant to the sixth amendment to the United States Constitution
       and section 10, article 1 of the Ohio Constitution.

                                Assignment of Error Two

       Appellant’s constitutional right to due process were [sic] violated when
       prosecuting attorney [sic] with held [sic] exculpatory evidence which could
       have effected [sic] the outcome of trial.

       {¶9} In his first assignment of error, appellant fails to present any argument that

the trial court erred in denying his motion for a new trial.   Instead, appellant asserts that

his trial counsel provided ineffective assistance of counsel by not introducing Mr.

Connor’s letter at trial. As such, appellant’s argument does not relate to the subject

matter of and is not within the scope of the present appeal. This Court need not address

an assignment of error pertaining to issues outside the scope of an appeal. State v.

Pollard, 8th Dist. No. 97468, 2012-Ohio-2311 ¶ 9, citing State v. Wright, 8th Dist. No.

95634, 2011-Ohio-3583.

       {¶10}    To the extent that appellant’s argument could be construed as an

argument that the trial court erred in denying his motion, the argument still fails. To

warrant the granting of a new trial on the grounds of newly discovered evidence,

       it must be shown that the new evidence (1) discloses a strong probability
       that it will change the result if a new trial is granted, (2) has been
       discovered since the trial, (3) is such as could not in the exercise of due
       diligence have been discovered before the trial, (4) is material to the issues,
       (5) is not merely cumulative to former evidence, and (6) does not merely
       impeach or contradict the former evidence. State v. Barnes, 8th Dist. No.
       95557, 2011-Ohio-2917, ¶ 23, quoting State v. Petro, 148 Ohio St. 505, 76
       N.E.2d 370 (1947), syllabus.

       {¶11}   Appellant fails to meet this standard in several respects. Contrary to

appellant’s assertions, the letter written by Mr. Connor is not newly discovered evidence

because the record demonstrates that appellant requested the fingerprint examination and
the trial court allowed it more than a month prior to trial. Furthermore, Mr. Connor’s

letter to appellant’s trial counsel was dated April 10, 2007, more than a month prior to

appellant’s trial.   Appellant presented no argument before the trial court or on appeal to

explain how he was prevented from discovering, using reasonable diligence, an opinion

letter allowed by the trial court and written to his own trial attorney well in advance of

his trial.

        {¶12}   What appellant has sought to do in this assignment of error is to raise a

claim of ineffective assistance of counsel that should have been brought on direct appeal.

 Appellant seeks to impermissibly bootstrap this error into the present appeal by

challenging the trial court’s subsequent order denying his motion for a new trial. As we

have previously stated:

        This court has held that “bootstrapping,” that is, “the utilization of a
        subsequent order to indirectly and untimely appeal a prior order (which
        was never directly appealed) is procedurally anomalous and inconsistent
        with the appellate rules which contemplate a direct relationship between
        the order from which the appeal is taken and the error assigned as a result
        of that order.” State v. Pollard, 8th Dist. No. 97468, 2012-Ohio-2311, ¶
        4, citing State v. Church, 8th Dist. No. 68590 (Nov. 2, 1995); see also
        State v. Jones, 8th Dist. No. 96630, 2012-Ohio-584 (Feb. 16, 2012).

        {¶13}   Under the doctrine of res judicata, a final judgment of conviction bars the

convicted defendant from raising and litigating in any proceeding, except an appeal from

that judgment, any defense or any claimed lack of due process that was raised or could

have been raised by the defendant at the trial that resulted in that judgment of conviction
or on an appeal from that judgment.     State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d

104 (1967).      The proper avenue for appellant to have argued that his attorney provided

ineffective assistance of counsel by choosing not to introduce Mr. Connor’s letter was on

direct appeal.    Appellant failed to raise such claim and he cannot now bootstrap this

error into the present appeal by challenging the trial court’s denial of his motion for a

new trial.

       {¶14}     Finally, we note that appellant has failed to provide a transcript from his

trial for the purposes of this appeal. Without a transcript the record is inadequate to

permit a review of the claimed error.       The duty to provide a transcript for appellate

review falls upon the appellant. This is necessarily so because an appellant bears the

burden of showing error by reference to matters in the record. Knapp v. Edwards

Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). When portions of the

transcript necessary for resolution of an assigned error are omitted from the record, the

reviewing court has nothing upon which to pass judgment and thus, as to such an

assigned error, the court has no choice but to presume the validity of the lower court’s

proceedings, and affirm. Id.

       {¶15} Appellant’s first assignment of error is without merit and overruled.

       {¶16}       In appellant’s second assignment of error, appellant again fails to argue

that the trial court erred in denying his motion for a new trial.   Instead, appellant argues

that the prosecutor withheld Mr. Connor’s letter from introduction at trial and violated
the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Appellant failed to raise this argument in his motion for a new trial before the trial court

and as such it is outside the scope of the present appeal.      The state cannot withhold

what they never did hold.   Mr. Connor was a defense expert, appointed by the trial court

and provided his findings to defense counsel well in advance of trial.

       {¶17}   Appellant’s second assignment of error is overruled.

       {¶18}   The judgment of the trial court is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution.     Case remanded to the trial court for execution of sentence.



       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., and
SEAN C. GALLAGHER, J., CONCUR
