[Cite as State v. McClain, 2020-Ohio-2833.]


                                     wwCOURT OF APPEALS
                                   GUERNSEY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 JUDGES:
                                               Hon. William B. Hoffman, P.J.
         Plaintiff-Appellee                    Hon. W. Scott Gwin, J.
                                               Hon. Patricia A. Delaney, J.
 -vs-
                                               Case No. 2019 CA 0024
 DOUGLAS A. McCLAIN

        Defendant-Appellant                    O P I N IO N




 CHARACTER OF PROCEEDINGS:                     Appeal from the Guernsey County Court
                                               of Common Pleas, Case No. 2009 CR
                                               000097


 JUDGMENT:                                     Affirmed

 DATE OF JUDGMENT ENTRY:                       May 6, 2020


 APPEARANCES:


 For Plaintiff-Appellee                        For Defendant-Appellant

 STEPHANIE R. ANDERSON                         MICHAEL A. PARTLOW
 Assistant Attorney General (By Assignment)    112 S. Water Street, Suite C
 615 W. Superior Avenue – 11th Floor           Kent, Ohio 44240
 Cleveland, Ohio 44113
Guernsey County, Case No. 2019 CA 0024                                                      2


Hoffman, P.J.
       {¶1}   Defendant-appellant Douglas McClain appeals the July 8, 2019 Order

entered by the Guernsey County Court of Common Pleas denying his Motion For Leave

To File Motion For New Trial. The state of Ohio is plaintiff-appellee.

                                  STATEMENT OF THE CASE

       {¶2}   On July 8, 2009, Appellant was indicted on one count of Murder (R.C.

2903.02), with a firearm specification. A jury trial was conducted on January 26, 2010.

Appellant was convicted as charged. The trial court sentenced Appellant to an indefinite

term of fifteen years to life in prison on the murder conviction to run consecutively to a

mandatory three year prison term on the firearm specification.

       {¶3}   Appellant filed a direct appeal to this Court. We affirmed his conviction.

See, State v. McClain, 5th Dist. Guernsey App. No. 10-CA-10, 2001-Ohio-1623.

       {¶4}   On September 28, 2019, Appellant filed a Petition for Post-Conviction Relief

which was denied by the trial court. This Court affirmed that decision in State v. McClain,

5th Dist. Guernsey App. No. 10-CA-48, 2011-Ohio-5923.

       {¶5}   On February 19, 2019, Appellant filed a Motion for Leave to File Motion for

New Trial. The trial court overruled said motion via Order filed July 8, 2019. It is from that

Order Appellant prosecutes this appeal assigning as error:



              THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

       DENYING APPELLANT’S MOTION FOR LEAVE TO FILE A MOTION FOR

       NEW TRIAL WITHOUT A HEARING.
Guernsey County, Case No. 2019 CA 0024                                                   3


       {¶6}   Motions for new trial are governed by Crim.R. 33. The rule provides, in

pertinent part:



              (A) Grounds. A new trial may be granted on motion of the defendant

       for any of the following causes affecting materially his substantial rights:

              ***********

              (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
Guernsey County, Case No. 2019 CA 0024                                                     4


       that the defendant was unavoidably prevented from filing such motion within

       the time provided herein. Motions for a 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 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. (Emphasis added).



       {¶7}   As can be deduced from our Statement of the Case, Appellant’s motion for

leave to file a motion for new trial was filed well beyond either the seven or 120 day time

limits provided in Crim.R. 33(B). Therefore, Appellant bears the burden of proving he was

unavoidably prevented from the discovery of the evidence by clear and convincing

evidence.

       {¶8}   Appellant’s defense at trial was he shot the victim in self-defense. Appellant

maintains the State’s theory at trial was Appellant fatally shot the victim with one weapon

and then shot himself with another. Appellant asserts in his brief his trial counsel informed

him he (trial counsel) had consulted several sources regarding ballistic experts and said

those sources agreed with the Ohio Bureau of Criminal Investigation report which found

no definitive conclusion could be drawn as to whether Appellant’s gunshot wound was or

was not self-inflicted. Years later, in 2017, Appellant retained the services of Scott Roder,
Guernsey County, Case No. 2019 CA 0024                                                     5


a forensic expert with ballistic analysis experience. Roder reviewed discovery material,

trial matters and conducted a physical examination of Appellant.        Roder ultimately

produced a video reconstruction allegedly demonstrating Appellant could not have self-

inflicted the gunshot wound with the weapon in the manner asserted by the State.

       {¶9}   Roder also prepared a written report which was attached to Appellant’s

motion for leave. Appellant asserts that (preliminary) report would later be supplemented

with Roder’s complete report, including documentary exhibits and a video exhibit

(apparently the video reconstruction mentioned earlier) should leave to file be granted.

       {¶10} Appellant maintains Roder’s report constitutes newly discovered evidence

and it did not exist within 120 days of the verdict.

       {¶11} In its Order denying Appellant leave, the trial court correctly points out

Roder did not receive [discover] any new evidence but rather analyzed the same evidence

available to Appellant at trial. The trial court concluded Appellant cannot demonstrate he

was unavoidably prevented from discovering this expert evidence at the time of trial and

therefore concluded Appellant failed to present any newly discovered evidence. We

agree. There is a distinction between newly discovered evidence and newly presented

evidence. Babos v. Welch, 2017 U.S. Dist. LEXIS 220648 (N.E. Ohio 2017). We agree

with the State while Roder’s report may have been “newly commissioned,” it was not

newly discovered within the meaning of Crim.R. 33.
Guernsey County, Case No. 2019 CA 0024                                                6


      {¶12} Accordingly, we find the trial court did not abuse its discretion in denying

Appellant’s motion for leave to file a motion for new trial. The Order of the Guernsey

County Court of Common Pleas is affirmed.




By: Hoffman, P.J.
Gwin, J. and
Delaney, J. concur
