[Cite as State v. Phillips, 2017-Ohio-8004.]
                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State of Ohio,                                        :

                 Plaintiff-Appellee,                  :
                                                                         No. 17AP-21
v.                                                    :              (C.P.C. No. 12CR-3644)

Malcolm Phillips,                                     :          (REGULAR CALENDAR)

                 Defendant-Appellant.                 :




                                               D E C I S I O N

                                    Rendered on September 29, 2017


                 On brief: Ron O'Brien, Prosecuting Attorney, and
                 Michael P. Walton, for appellee. Argued: Michael P.
                 Walton.

                 On brief: Kura, Wilford & Schregardus Co., L.P.A., and
                 Sarah M. Schregardus, for appellant. Argued: Sarah M.
                 Schregardus.


                   APPEAL from the Franklin County Court of Common Pleas

KLATT, J.
        {¶ 1} Defendant-appellant, Malcolm Phillips, appeals from a judgment of the
Franklin County Court of Common Pleas denying his motion for leave to file a motion for
new trial. For the following reasons, we affirm that judgment.
I. Factual and Procedural Background

        {¶ 2} In 2012, a Franklin County Grand Jury indicted appellant with one count of
cocaine possession, with a firearm specification, in violation of R.C. 2925.11, and one
count of having a weapon while under disability in violation of R.C. 2923.13. A jury found
appellant guilty of both counts and the trial court sentenced him accordingly. This court
No. 17AP-21                                                                                 2

affirmed appellant's convictions and sentence. State v. Phillips, 10th Dist. No. 14AP-79,
2014-Ohio-5162.
       {¶ 3} On February 24, 2016, the Franklin County Prosecutor's Office sent a letter
to appellant's counsel. In that letter, the prosecutor wrote that one of the state's witnesses
at appellant's trial, Tye Downard, who at the time was a detective with the Reynoldsburg
Police Department ("RPD"), had been arrested by the Federal Bureau of Investigations
and charged in federal court with possession with intent to distribute drugs. Downard's
alleged conduct occurred between October 2015 and February 2016. Downard killed
himself in jail days after his arrest. In light of that development, appellant filed a motion
for leave to file a motion for new trial based on newly discovered evidence, arguing in part
that Downard's testimony was no longer credible. The state opposed appellant's motion,
arguing that Downard's alleged criminal conduct was not material to appellant's defense
and that Downard played a very minimal role in appellant's case.
       {¶ 4} Shortly after filing his motion, appellant supplemented the motion with
evidence that another RPD officer involved in appellant's case, Sergeant Shane Mauger,
had agreed to plead guilty in federal court to counts of conspiracy to deprive persons of
civil rights and federal program theft.      The convictions were based upon Mauger's
conspiracy with others to steal money and property that he obtained from the execution of
search warrants or other police actions. Appellant also alleged that Mauger had filed
search warrant affidavits that contained false statements. Again, appellant challenged the
credibility of Mauger's testimony during appellant's trial based upon Mauger's
convictions. In its response, the state emphasized the minimal role that Mauger played in
appellant's case.
       {¶ 5} The trial court denied appellant's motion for leave to file a motion for a new
trial. The trial court concluded that the evidence of Downard's and Mauger's criminal
conduct was not material to appellant's defense because the case against him was
"overwhelmingly" handled by the Whitehall Police Department ("WPD"). Although the
trial court noted Downard's and Mauger's "small role" in the beginning of the case, it
concluded that the evidence against appellant was obtained by the WPD and not by the
RPD. The trial court also noted that appellant's defense at trial did not involve the
No. 17AP-21                                                                                               3

credibility of either of these witnesses. Rather, his defense was based on his assertion that
the drugs and weapon found by the police were not his.1
II. Appellant's Appeal

          {¶ 6} Appellant appeals and assigns the following error:
                  The trial court abused its discretion when it denied
                  Appellant's Motion for Leave to File a Motion for New Trial.

      A. The Motion for Leave to file a Motion for a New Trial

          {¶ 7} Appellant filed his motion for new trial pursuant to Crim.R. 33(A)(6), which
provides that a new trial may be granted "[w]hen new evidence material to the defense is
discovered which the defendant could not with reasonable diligence have discovered and
produced at the trial." Because appellant did not file his motion for a new trial based on
newly discovered evidence within 120 days of the jury's verdict, he correctly sought leave
from the trial court to file a delayed motion. State v. Hoover-Moore, 10th Dist. No. 14AP-
1049, 2015-Ohio-4863, ¶ 13, citing State v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-
2244, ¶ 19.
          {¶ 8} To obtain such leave, a defendant must demonstrate by clear and
convincing proof that he or she was unavoidably prevented from discovering the evidence
within the 120 days. 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 and
could not have learned of that existence within the time prescribed for filing the motion in
the exercise of reasonable diligence. Id., citing State v. Lee, 10th Dist. No. 05AP-229,
2005-Ohio-6374, ¶ 7, and State v. Walden, 19 Ohio App.3d 141, 145-46 (10th
Dist.1984). In addition to the requirement that a defendant show he or she was
unavoidably prevented from discovering the evidence relied upon to support a motion for
new trial, a defendant also must show that he filed his motion for leave within a
reasonable time after discovering the evidence relied upon to support the motion for new
trial. State v. Grinnell, 10th Dist. No. 09AP-1048, 2010-Ohio-3028, ¶ 12, quoting State v.
Gray, 8th Dist. No. 92646, 2010-Ohio-11, ¶ 18; Berry at ¶ 37. In the event there has been
an undue delay between the time that the evidence was discovered and the filing of the
motion for new trial, the trial court must determine whether the delay was reasonable

1   This court rejected that argument in appellant's appeal from his convictions. Phillips at ¶ 115-22.
No. 17AP-21                                                                                 4

under the circumstances or whether the defendant has adequately explained the reason
for the delay. Grinnell.
        {¶ 9} The state conceded, and the trial court agreed, that appellant was
unavoidably prevented from discovering the evidence of the officers' illegal misconduct.
Thus, the trial court went on to address the merits of his motion for a new trial.
    B. The Motion for New Trial based on Newly Discovered Evidence

        {¶ 10} In order to grant a motion for a new trial based on newly discovered
evidence, it must be shown that the newly discovered evidence upon which the motion is
based: (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. Burke, 10th Dist. No. 06AP-656, 2006-Ohio-4597, ¶ 13, citing
State v. Davis, 10th Dist. No. 03AP-1200, 2004-Ohio-6065, ¶ 7; State v. Petro, 148 Ohio
St. 505 (1947), paragraph one of the syllabus. Our review of a trial court's decision
resolving a motion for new trial is limited to determining whether the trial court abused
its discretion. Hoover-Moore at ¶ 16, citing State v. Chavis-Tucker, 10th Dist. No. 14AP-
40, 2014-Ohio-3050, ¶ 5. It is also within the discretion of the trial court to determine
whether a motion for a new trial and the material submitted with the motion warrants an
evidentiary hearing. State v. Graggs, 10th Dist. No. 15AP-480, 2015-Ohio-3990, ¶ 9,
citing State v. Hill, 64 Ohio St.3d 313, 333 (1992). Although an abuse of discretion is
typically defined as an unreasonable, arbitrary, or unconscionable decision, no court has
the authority, within its discretion, to commit an error of law. State v. Moncrief, 10th
Dist. No. 13AP-391, 2013-Ohio-4571, ¶ 7.
        {¶ 11} In denying appellant's motion, the trial court concluded that the evidence of
the officers' illegal conduct was not material to appellant's defense. To review that
conclusion, we must consider the involvement of these officers in appellant's case and at
his trial.
    C. The Officers' Involvement in this Case

        {¶ 12} Mauger and Downard were the first witnesses to testify at appellant's trial.
It was their initial investigation of possible drug sales that caused law enforcement
No. 17AP-21                                                                                 5

officers to suspect that appellant was engaged in criminal conduct. Mauger testified that
on January 25, 2012, he received an anonymous tip about possible drug sales being
conducted at a house located at 5903 Little Brook Way. The next day, he went to the
house and obtained vehicle registration information for two cars parked in front of the
house. One of the cars was registered to appellant. A day later, Mauger went to the
address and performed a "trash pull" in which he searched the house's trash for evidence
of drugs. He found several small baggies connected to what he thought was electrical
tape. Mauger testified these items were consistent with large scale quantities of drugs.
(Tr. 341). He also conducted a field test of white residue he found that tested positive for
drugs. As a result of this investigation, Mauger prepared an affidavit for a search warrant
of the house and vehicles at the address for narcotics and other evidence of drug
trafficking. Id. at 334.
       {¶ 13} A magistrate approved the search warrant and, on January 31, 2012, the
RPD entered the house to execute the warrant. Appellant and two others were inside the
house. Mauger searched the car outside the house that was registered to appellant and
found a digital scale and some plastic baggies. Id. at 351. The scale contained a trace
amount of cocaine. Downard testified that he assisted Mauger in the investigation of the
initial tip and was present for the execution of the search warrant at the house. He
testified that he searched the house and found a large amount of money, bullets, and a
baggie with cocaine residue inside. Despite this evidence, RPD did not proceed with any
further investigation of appellant and did not file charges against him. Nor was the
evidence discovered in the RPD's search of 5903 Little Brook Way the basis for the
charges that lead to appellant's convictions.
       {¶ 14} On February 2, 2012, the WPD stopped a vehicle for a license plate
violation. Appellant was a passenger in the vehicle. The WPD officer called a canine unit
to the car and the dog alerted to the presence of drugs on the passenger side of the car.
The officer searched the car and found marijuana on the passenger side floor and cocaine
in the backseat. The officer also found a business card for a storage facility with a specific
unit number written on it. Appellant was arrested but was released shortly thereafter.
       {¶ 15} The following day, the WPD brought a canine unit to the storage facility
indicated on the business card. The dog alerted to the possibility of drugs at the specific
unit written on the business card. Apparently, appellant rented the storage unit on
No. 17AP-21                                                                               6

February 1, 2012, the day after the RPD's search of 5903 Little Brook Way. After the dog
alerted, the WPD requested a search warrant for this storage unit. Detective Chad Wilder
of the WPD called Downard and asked him to assist him in securing the storage unit while
they waited on the search warrant. Wilder called Downard because Wilder was aware of
RPD's earlier search at 5903 Little Brook Way and he also wanted to let Downard know
that the WPD had arrested appellant the night before. Downard testified that upon
receiving Wilder's call, he met Wilder at the storage facility. They were both in plain
clothes and in unmarked cars.
       {¶ 16} Thereafter, a car approached their location but then disappeared from the
officers' sight. The same car approached their location again and then stopped. From the
license plate, Wilder identified the vehicle as the same vehicle the WPD had stopped the
previous evening for the license plate violation. Downard also thought that the vehicle
was the same vehicle he found parked outside the house at 5903 Little Brook Way
approximately one week earlier.
       {¶ 17} As Wilder approached the car, it sped away. Wilder and Downard pursued
the car and stopped it. Three people were in the car, including appellant. Wilder
searched the car and found marijuana, a digital scale, and keys to the storage unit.
Shortly thereafter, another officer from WPD arrived at the storage unit with a search
warrant. Wilder opened the storage unit and found cocaine, guns, and a large amount of
money. This evidence formed the basis for the charges against appellant. Downard was
not involved in the search of the storage unit. Largely based on the evidence obtained in
the storage unit, appellant was convicted of cocaine possession, with firearm specification,
and having a weapon under disability.
       {¶ 18} The record reflects that Mauger and Downard did not have a significant role
in the case against appellant. Mauger's only involvement in this matter, with some
assistance from Downard, was to obtain the initial warrant to search 5903 Little Brook
Way. That search, however, did not lead to any charges and the RPD did not proceed with
any additional investigation of appellant.     It appears the state presented Mauger's
testimony about the search of 5903 Little Brook Way to prove appellant's motivation for
renting the storage unit.   However, Mauger's testimony did not directly involve the
discovery of the evidence on which appellant's convictions were based.
No. 17AP-21                                                                                 7

       {¶ 19} Downard was slightly more involved, but only because Wilder asked him to
come to the storage unit to assist him in securing the scene. As a result, Downard testified
about his observations and conduct at the storage facility. Wilder's testimony confirmed
Downard's involvement. Downard had nothing to do with the WPD's traffic stop of the
vehicle the previous evening in which appellant was a passenger or the discovery of
evidence that lead to the identification of the storage facility and the storage unit. Nor did
Downard have anything to do with the WPD's (1) subsequent investigation, including the
use of a canine at the storage facility; (2) obtaining a search warrant; or (3) the actual
search of the particular unit that resulted in the discovery of the evidence on which
appellant's convictions are based.
       {¶ 20} In light of the minor role that both Mauger and Downard played in this
matter, the trial court did not abuse its discretion when it found that the evidence of their
criminal conduct, and its impact on the credibility of their testimony, would not be
material to appellant's case. Nor does the new evidence disclose a strong probability that
it would change the result if a new trial were granted. State v. Jackson, 10th Dist. No.
16AP-728, 2017-Ohio-6971, ¶ 8 (holding that new DNA evidence that slightly modified
DNA evidence presented at trial did not disclose a strong probability of a new result
because original DNA evidence "did not play a significant role in appellant's
convictions."). As noted by the trial court, neither Mauger's nor Downard's testimony was
material to appellant's defense. The trial court did not act unreasonably or arbitrarily
when it found that appellant did not satisfy the Petro requirements for granting of a new
trial based on newly discovered evidence. Accordingly, the trial court did not err by
denying appellant's motion for a new trial without a hearing. We overrule appellant's
assignment of error.
III. Conclusion

       {¶ 21} Having overruled appellant's assignment of error, we affirm the judgment of
the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.
                                   SADLER, J., concurs.
                                  DORRIAN, J., dissents.
No. 17AP-21                                                                                8

DORRIAN, J., dissenting.
       {¶ 22} Because I disagree with the majority proceeding to opine on the trial court's
decision regarding the merits of the question whether appellant is entitled to a new trial
pursuant to Crim.R. 33(A)(6), I respectfully dissent.
       {¶ 23} Crim.R. 33(B) states:
              (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 that the defendant was
              unavoidably prevented from filing such motion within the
              time provided herein.

(Emphasis added.)
       {¶ 24} Here, the trial court noted the state agreed that appellant was unable to
discover the information regarding Downard and Mauger, and the court concluded that
appellant "clearly could not have discovered and produced the evidence submitted in this
Motion during his trial." (Emphasis sic.) (Jgmt. Entry at 2.) The court then proceeded to
consider whether the evidence discovered regarding Downard and Mauger is actually
material to the case and the merits of whether appellant is entitled to a new trial pursuant
to Crim.R. 33(A)(6).
       {¶ 25} Recently this court cautioned against conflating the two distinct issues of
the merits of whether appellant is entitled to a new trial rather than addressing the
threshold issue of whether appellant was unavoidably prevented from discovering new
evidence. State v. Brodbeck, 10th Dist. No. 17AP-61, 2017-Ohio-7187, ¶ 17. Nevertheless,
this court has found in certain cases it may be proper for a trial court to consider the
merits of whether an appellant is entitled to a new trial when only a motion for leave to
file a motion for new trial is pending before it. Id. We have also found, however, there are
cases where it is improper. See State v. Gaven, 10th Dist. No. 16AP-645, 2017-Ohio-5524,
¶ 20 ("the trial court's analysis improperly 'conflates two distinct issues' by resolving the
motion for leave based on the merits of whether appellant is entitled to a new trial rather
than addressing the threshold issue of whether appellant was unavoidably prevented from
No. 17AP-21                                                                              9

discovering new evidence. * * * Moreover, the trial court's stated basis for denying the
motion is grounded in the incorrect legal assumption * * *. Considering the above, we find
that the trial court's application of incorrect law in considering appellant's motion for
leave to file a delayed motion for new trial constitutes reversible error").
       {¶ 26} On the facts of the case before us, given the seriousness of the newly
discovered evidence as well as the role Downard and Mauger played in the investigation
leading to appellant being charged and tried for possession of cocaine and having a
weapon while under disability, I would find it was improper to consider the merits of
whether appellant is entitled to a new trial and that it was an abuse of discretion to deny
appellant's motion for leave to file a motion for new trial.
       {¶ 27} Finally, I disagree with the characterization by the majority of Downard's
and Mauger's role in this case as "minor" and "[not] significant." (Majority Decision at
¶ 18 and 20.) As the majority notes, "[i]t was their initial investigation [by Downard and
Mauger] of possible drug sales that caused law enforcement officers to suspect that
appellant was engaged in criminal conduct." (Majority Decision at ¶ 12.) Mauger and
Downard obtained and executed the search warrant of appellant's residence prior to the
search of the storage unit. (Majority Decision at ¶ 13.) The record reflects that in his
affidavit to establish probable cause to secure the search warrant for the storage unit,
Whitehall Detective Grinstead included information regarding Downard's and Mauger's
search of appellant's residence:
              On 1/31/12 at 7:10pm Reynoldsburg P.D. along with
              Columbus P.D. executed a narcotic search warrant at Malcolm
              Phillips residence located * * * in Columbus. Malcolm Phillips
              was present at this location. During a search of the residence
              officers located over $5,000.00 in cash and a small amount of
              powder cocaine. Also recovered as a result of the investigation
              was a set of digital scales with cocaine residue. See
              Reynoldsburg P.D. police report #01-12-000691 for complete
              details.

(State's Memo. Contra Mot. to Suppress, Ex. 4 at 5.)
       {¶ 28} Furthermore, Downard assisted Whitehall Police Department in securing
the storage unit prior to the search. Finally, both Downard and Mauger testified at trial.
Taking all this into consideration, I would find the involvement of Downard and Mauger
No. 17AP-21                                                                       10

in the investigation and ultimately in this case to be significant enough to warrant
granting leave to file a motion for new trial.
       {¶ 29} Therefore, I would sustain appellant's assignment of error, reverse the
judgment of the Franklin County Court of Common Pleas and remand to that court with
instructions to grant the motion for leave to file a motion for new trial.
