[Cite as State v. Devaughns, 2015-Ohio-452.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

STATE OF OHIO                                        :
                                                     :
        Plaintiff-Appellee                           :   C.A. CASE NO. 25826
                                                     :
v.                                                   :   T.C. NO. 06CR843
                                                     :
CHRISTOPHER A. DEVAUGHNS                             :   (Criminal appeal from
                                                     :    Common Pleas Court)
        Defendant-Appellant                          :
                                                     :

                                                ...........

                                               OPINION

                Rendered on the ___6th___ day of ____February ___, 2015.

                                                ...........

MICHELE D. PHIPPS, Atty, Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

CHRISTOPHER A. DEVAUGHNS, #525-249, London Correctional Institute, P. O. Box
69, London, Ohio 43140
      Defendant-Appellant

                                               .............

DONOVAN, J.

        {¶ 1} This matter is before the Court on the Notice of Appeal of Christopher

Devaughns, filed July 17, 2013. Devaughns appeals from the trial court’s June 28, 2013

“Entry and Order Overruling Defendant’s Motion for Leave of Court to File Motion for New

Trial.” We hereby affirm the judgment of the trial court.
                                                                                          -2-
       {¶ 2} Devaughns was convicted on one count of felonious assault, in violation of

R.C. 2903.11(A)(1), and one count of kidnaping, in violation of R.C. 2905.01(A)(3). The

victim herein is Lynelle Moore, the mother of Devaughns’ daughter. The trial court

sentenced Devaughns to eight years on the felonious assault conviction and ten years on

the kidnaping conviction, to be served consecutively with one another, and also

consecutively with a one-year sentence imposed in another matter. This Court affirmed

Devaughns’ convictions and reversed and remanded the matter for resentencing due to

the trial court’s failure to accord him his right to allocution. State v. Devaughns, 2d Dist.

Montgomery No. 21654, 2007-Ohio-3455.

       {¶ 3} On remand, Devaughns received the same sentence, and he appealed.

This Court affirmed his sentence. State v. Devaughns, 2d Dist. Montgomery No. 22349,

2008-Ohio-4010.

       {¶ 4} On August 20, 2009, Devaughns filed a motion for new trial pursuant to

Crim.R. 33. The trial court overruled his motion, and he appealed. This Court affirmed

the judgment of the trial court. State v. Devaughns, 2d Dist. Montgomery No. 23720,

2011-Ohio-125.

       {¶ 5} On April 13, 2011, Devaughns filed “Defendant’s Motion for Unavoidably

Prevented Crim.R. 33(B),” and this Court affirmed the denial of Devaughns’ motion.

State v. Devaughns, 2d Dist. Montgomery No. 24631, 2012-Ohio-5791.

       {¶ 6} In his “Motion for Leave of Court to File Motion for New Trial,” Devaughns

asserted as follows:

              Appointed trial counsel David R. Miles, for the defendant Christopher

       DeVaughns, failed to put forth the necessary initiatives:
                                                                                      -3-
               1) To inform his client, Mr. DeVaughns, that juror would be talking

      about defendant’s on going trial with outsider, while at lunch.

               2) Appointed defense counsel failed to identify juror.

               3) Defense counsel failed to request, as is required under such

      circumstances dictate, a hearing to determine as to whether, juror talking

      about defendant’s on going trial with outsider, while at lunch. Whether the

      outside influence(s) tainted any other jury member, to cause the guilty

      verdict.

               ***

               Defendant Devaughns, firmly asserts: Before Dec. 5, 2011, and not

      until six and one half years after the verdict rendered of the criminal trial

      06-CR-0843, he the defendant had absolutely no knowledge of the juror(s)

      misconduct incident that had drawn the ire of trial court 06-CR-0843,

      causing trial court to admonish the prosecution and the appointed trial

      counsel, David. R. Miles, to stop the (still unidentified) juror(s) from

      communicating about defendant’s on going trial with outsider, while at

      lunch.

      {¶ 7} The State responded that Devaughns “has filed multiple motions for new

trial. The matter he proposes now, similar to those he proposed previously, is barred by

res judicata and wholly without merit.” The State further asserted that Devaughns’

motion is untimely and that there “are simply no grounds for the Court to even consider a

motion for new trial. Defendant provides no evidence of juror misconduct and there was

none. At minimum what he is citing to, if accurate, appears to be a standard instruction
                                                                                       -4-
by the Court not to talk about the case with anyone over the lunch break. * * *.” In

overruling Devaughns’ motion, the trial court indicated that it did so for the reasons set

forth in the State’s memorandum.

      {¶ 8} Devaughns asserts the following assignment of error:

             TRIAL    COURT      ERRED      TO   THE     PREJUDICE      OF    THE

      APPELLANT. TRIAL COURT ABUSED IT’S [sic] DISCRETION. TRIAL

      COURT HELD NO HEARING PURSUANT TO OHIO CRIM.R. 33(B),

      AFFORDING THE DEFENDANT HIS OPPORTUNITY TO PROVE

      (WRONGFULLY CONVICTED).

      {¶ 9} Devaughns asserts that it “has since been discovered that the Prosecution

knowingly presented false evidence, Blood Samples ([Exhibits] 18 & 19), to the Trial Jury

at close.” Devaughns asserts that he received an incomplete copy of the transcript of the

proceedings below “three years ten months after trial verdict 06-CR-0843.” Attached to

Devaughns’ brief is a December 1, 2011 Decision and Entry from this Court in State v.

Devaughns, 2d Dist. Montgomery No. 24631, 2012-Ohio-5791, in which Devaughns’

motion for a copy of the videotape recording of the proceedings at trial was sustained.

Devaughns asserts as follows:

             Five years seven months after trial verdict 06-CR-0843, Defendant

      discovered Recorded Bench Conference @ (11:26:32) a.m. – (11:26:59)

      a.m., of Audio/Visual Recording 06-CR-0843, held away from jury, held

      away from Defendant, completely removed from Defendant’s printed copy

      of Criminal Proceedings 06-CR-0843, indiscernible in part, discovered to be

      Prima Facie Evidence of (Constitutional Ineffective Assistance of Appointed
                                                                                         -5-
          Defense Counsel), David R. Miles, 06-CR-0843.

          {¶ 10} Also attached to Devaughns’ brief is page 119 of the trial transcript. He

asserts that 27 seconds of the proceedings were not transcribed, “concealing prima facie

evidence of juror misconduct/probable jury tampering.” Also attached to Devaughns’

brief is his December 2, 2013 “Appellate R. 9 (E). Motion for an Agreed Statement,” in

which he asserted below that the following is a “fair and accurate (summary) of the

indiscernible portions of Trial Court’s (Bench Conference (11:26:32) a.m. – (11:26:59)

a.m.)”:

                 @ (Bench Conference (11:26:32) a.m. – (11:26:59) a.m.), Trial Court

          06-CR-0843 instructed the prosecution and the appointed defense counsel

          to confront ( Juror(s) ) whom Trial Court 06-CR-0843 identified: to stop

          further unauthorized outside communication about Defendant’s ongoing

          trial, outside the courtroom, outside the juryroom, with outsider(s) before

          return of the trial verdict 06-CR-0843.

A copy of the trial court’s decision overruling the motion for an agreed statement is also

attached to Devaughns’ brief.

          {¶ 11} We note that Devaughns also filed a Reply to the State’s brief. Therein he

asserts that the trial court erred in relying upon the State’s memorandum, and that he

“should not have to take the ‘word’ of an adverse party who has made no claim, who had

made no indication as to have even looked at the evidence. i.e. (A/V) of the Appellant’s

criminal trial 06-CR-0843.”

          {¶ 12} Crim.R. 33 provides in relevant part as follows:

                 A new trial may be granted on motion of the defendant for any of the
                                                                               -6-
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.

***

       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.

{¶ 13} As this Court has previously noted:
                                                                                          -7-
               * * * To seek a new trial based on new evidence more than 120 days

       after the verdict, a petitioner “must first file a motion for leave, showing by

       ‘clear and convincing proof that he has been unavoidably prevented from

       filing a motion in a timely fashion.’ ” [State v. Parker, 178 Ohio App.3d 574,

       577], 899 N.E.2d 183,[2008-Ohio-5178], quoting State v. Morgan, Shelby

       App. No. 17-05-26, 2006-Ohio-145. “ ‘[A] party is unavoidably prevented

       from filing a motion for new trial if the party had no knowledge of the

       existence of the ground supporting the motion for new trial and could not

       have learned of the existence of that ground within the time prescribed for

       filing the motion for new trial in the exercise of reasonable diligence.’ ” Id.,

       quoting State v. Walden (1984), 19 Ohio App.3d 141, 145-146, 483 N.E.2d

       859.

State v. Wilson, 2d Dist. Montgomery No. 23247, 2009-Ohio-7035, ¶ 8.

       {¶ 14} As this Court has further noted regarding a hearing on a motion for leave to

file a motion for a new trial:

               * * * We have held that a defendant is entitled to such a hearing if he

       submits “documents that on their face support his claim that he was

       unavoidably prevented from timely discovering the evidence” at issue. State

       v. York (Feb. 18, 2000), Greene App. No. 99–CA–54, 2000 WL 192433,

       citing State v. Wright (1990), 67 Ohio App.3d 827, 828, 588 N.E.2d 930;

       see, also, State v. Mitchell, Montgomery App. No. 19816, 2004-Ohio-459,

       2004 WL 225464, ¶ 7–10 (finding affidavits sufficient to warrant a hearing

       on whether the defendant was unavoidably prevented from discovering the
                                                                                         -8-
          facts upon which his request for a new trial relied). Notably, the documents

          at issue in York and Wright were affidavits from prosecution witnesses

          recanting their trial testimony against the defendant.

State v. McConnell, 170 Ohio App. 3d 800, 2007-Ohio-1181, 869 N.E.2d 77, ¶ 19 (2d

Dist.).

          {¶ 15} “We review a trial court's ruling on a Crim.R. 33 motion for an abuse of

discretion. State v. McCoy, 2d Dist. Montgomery No. 21032, 2006–Ohio–1137, ¶ 8.”

State v. Thompson, 2d Dist. Montgomery No. 25016, 2012-Ohio-4862, ¶ 7. This Court

recently noted as follows:

                 “Abuse of discretion” has been defined as an attitude that is

          unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc.,

          19 Ohio St.3d 83, 87, 482 N.E.2d 1248, 1252 (1985). It is to be expected

          that most instances of abuse of discretion will result in decisions that are

          simply unreasonable, rather than decisions that are unconscionable or

          arbitrary.

                 A decision is unreasonable if there is no sound reasoning process

          that would support that decision. It is not enough that the reviewing court,

          were it deciding the issue de novo, would not have found that reasoning

          process to be persuasive, perhaps in view of countervailing reasoning

          processes that would support a contrary result. AAAA Enterprises, Inc. v.

          River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157,

          161, 553 N.E.2d 597 (1990).

State v. Mitchell, 2d Dist. Montgomery No. 25976, 2014-Ohio-5070, ¶ 13-14.
                                                                                       -9-
       {¶ 16} Regarding Devaughns’ assertion in his brief that the State presented false

evidence in the form of two blood samples, we note that Devaughns did not include this

argument in his April 9, 2013 motion, and we find that this conclusory statement, made

without evidentiary support eight years after trial, lacks merit.

       {¶ 17} We further agree with the State that the “record fails to reveal any

information that would support Devaughs’ allegations of juror misconduct or ineffective

assistance of counsel.” The portion of the transcript to which Devaughns directs our

attention provides as follows:

              MS.DODD: May we approach, your Honor?

              THE COURT: Yes.

              (Bench conference held out of the presence of the jury as follows:)

              MS. DODD: We’re out of witnesses for the morning. Our next

       witness is a doctor who we asked to come in as our first witness after lunch

       because of his schedule. He was seeing patients all morning. He can

       come in at 12:45.

              THE COURT: When’s he coming in?

              MS. DODD: 12:45.

              THE COURT: Okay.

              (End of bench conference)

              THHE COURT: Ladies and gentlemen, as we had you here at 8:30,

       we’re going to break now at 11:30 for our lunch recess so we can get back

       together at one o’clock. The bailiff will meet with you back in the jury room

       and discuss lunch arrangements with you.
                                                                                          -10-
             Again, it’s important that you be fair and attentive throughout the trial.

      Do not discuss the case among yourselves or with anyone else. Do not

      permit anyone to discuss it with you or in your presence. Do not form or

      express any opinion on the case until it’s finally submitted to you.

             We’ll be in recess until one o’clock.

             (Jury exiting courtroom)

      {¶ 18} Since Devaughns failed to provide a scintilla of evidence or an affidavit to

support his allegations of juror misconduct and ineffective assistance of counsel, he was

not entitled to a hearing, and the trial court properly overruled his “Motion for Leave of

Court to File Motion for New Trial.” Since an abuse of discretion is not demonstrated,

Devaughns’ assigned error is overruled. The judgment of the trial court is affirmed.

                                        ..........

FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Michele D. Phipps
Christopher A. Devaughns
Hon. Gregory F. Singer
