[Cite as State v. Henry, 2019-Ohio-3645.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 JEFFERSON COUNTY

                                            STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                    v.

                                             ELVIS HENRY,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                            Case No. 18 JE 0019


                                   Criminal Appeal from the
                       Court of Common Pleas of Jefferson County, Ohio
                                   Case No. 15-CR-120(A)

                                         BEFORE:
                 David A. D’Apolito, Gene Donofrio, Cheryl L. Waite, Judges.


                                               JUDGMENT:
                                                 Affirmed.


 Atty. Jane M. Hanlin, Jefferson County Prosecutor, and Atty. Samuel Pate, Assistant
 Prosecuting Attorney, Jefferson County Justice Center, 16001 State Route 7,
 Steubenville, Ohio 43952, for Plaintiff-Appelle and

 Elvis Henry, Pro Se, #A681-842, Belmont Correctional Institution, P.O Box 540, Saint
 Clairsville, Ohio, 43950, Defendant-Appellant.
                                                                                          –2–


                                   Dated: September 6, 2019


 D’APOLITO, J.

       {¶1}   Pro se Appellant, Elvis Henry, appeals from the September 11, 2018
judgment of the Jefferson County Court of Common Pleas, denying his Crim.R. 33 motion
for new trial without a hearing. On appeal, Appellant argues the trial court abused its
discretion in denying his motion on the basis of newly discovered evidence. Because
Appellant’s argument is barred by res judicata, the trial court’s judgment is affirmed.

                              FACTS AND PROCEDURAL HISTORY

       {¶2}   Appellant was convicted by a jury of having weapons while under disability
and possession of cocaine in excess of 100 grams, which included a major drug offender
specification. The indictment and convictions stemmed from the search of a residence
located at 740 North Fifth Street in Steubenville, Ohio for which a search warrant was
obtained. The basis for the warrant included two controlled buys involving two informants
occurring on July 28, 2015.
       {¶3}   Appellant’s convictions were upheld on direct appeal. State v. Henry, 7th
Dist. Jefferson No. 16 JE 0010, 2017-Ohio-7505 (“Henry I”).
       {¶4}   While Henry I was pending, Appellant filed a petition for postconviction relief
on May 1, 2017. Appellee, the State of Ohio, filed a motion in opposition one week later.
On June 14, 2017, the trial court denied Appellant’s petition without a hearing.
       {¶5}   The denial of Appellant’s petition for postconviction relief was affirmed by
this court. State v. Henry, 7th Dist. Jefferson No. 17 JE 0018, 2018-Ohio-787 (“Henry
II”). Appellant’s appeal to the Ohio Supreme Court was denied. State v. Henry, 153 Ohio
St.3d 1402, 2018-Ohio-2380, 100 N.E.3d 422.
       {¶6}   While Henry II was pending, Appellant filed a Crim.R. 33 motion for leave
for new trial contemporaneously with a motion for new trial based on a claim of newly
discovered evidence on February 12, 2018. In support of Appellant’s motion are affidavits
from Michael Shane, a convicted felon and fellow inmate. The State filed a memorandum
contra. Appellant filed a reply.
       {¶7}   On September 11, 2018, the trial court denied Appellant’s Crim.R. 33


Case No. 18 JE 0019
                                                                                          –3–


motion for new trial without a hearing. Specifically, the court denied Appellant’s motion
“by reason of the fact that these same issues were previously litigated in Defendant’s
Motion for Post-Conviction Relief filed May 1, 2017 and overruled on June 14, 201[7] and
appealed by Defendant on July 12, 2017.” (9/11/18 Judgment Entry). Appellant filed the
instant appeal and raises one assignment of error.

                                   ASSIGNMENT OF ERROR

      A TRIAL COURT ABUSES ITS DISCRETION WHEN IT FAILS TO GRANT
      A MOTION FOR NEW TRIAL.

      The decision to grant or deny a new trial based upon ‘grounds of newly
      discovered evidence falls within the sound discretion of the trial court.’ State
      v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 85, citing
      State v. Hawkins, 66 Ohio St.3d 339, 350, 612 N.E.2d 1227 (1993).
      Similarly, whether a hearing is warranted is within the trial court’s discretion.
      State v. Mir, 7th Dist. Mahoning No. 12 MA 210, 2013-Ohio-2880, ¶ 7. An
      abuse of discretion means the trial court’s decision is unreasonable based
      upon the record; that the appellate court may have reached a different result
      is not enough to warrant reversal. State v. Dixon, 7th Dist. Mahoning No.
      10 MA 185, 2013-Ohio-2951, ¶ 21.

State v. Kozic, 7th Dist. Mahoning No. 16 MA 0158, 2017-Ohio-4391, ¶ 6.

      {¶8}   Appellant’s February 12, 2018 motion for new trial is based on Crim.R.
33(A)(6). A new trial based on newly discovered evidence should be granted only if 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.’




Case No. 18 JE 0019
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State v. Green, 7th Dist. Mahoning No. 13 MA 120, 2015-Ohio-1118, ¶ 12, quoting State
v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947).

       {¶9}   In this case, the record reveals that Appellant was found guilty of having
weapons while under disability and possession of cocaine in excess of 100 grams, which
included a major drug specification, following a jury trial in March 2016. About two years
later, Appellant filed a Crim.R. 33 motion for new trial based on a claim of newly
discovered evidence in February 2018. Clearly, Appellant’s motion was filed outside the
120-day time limit under Crim.R. 33(B).
       {¶10} Appellant presents his argument that he was not the seller during the
controlled buy by way of affidavits from convicted felon and fellow inmate, Michael Shane.
Shane was sentenced on charges relating to the death of the confidential informant
utilized in Appellant’s case. Shane claims the second controlled buy took place on July
29, 2015, rather than on July 28, 2015, the date of the search warrant and Appellant’s
arrest. Appellant maintains that this “newly discovered evidence” was unattainable due
to the ineffectiveness of his trial counsel, thereby entitling him to a new trial. Similar to
the other affidavits relied upon by Appellant in his May 2017 postconviction petition
concerning his alibi defense, Shane’s affidavits here are likewise not credible.
       {¶11} Appellant again asserts in this appeal that his trial counsel was ineffective
for not using videos of the controlled buy at his suppression hearing and at his trial. At
the beginning of the video involving the second controlled buy, Detective Hanlin states
the date to be July 28, 2015 at 4:26 p.m. while the timestamp indicates the date as July
29, 2015 at 4:36 p.m. Nothing in the record establishes that Appellant was unavoidably
prevented from discovering the evidence that served as the basis for his motion. Nothing
in Shane’s affidavits amounts to “newly discovered evidence.” In fact, Appellant already
raised these same issues in Henry II and we rejected them. See Henry, 2018-Ohio-787,
¶ 14-15, 20-22, 24-32, 41-42.
       {¶12} Appellant fails to raise different issues in this appeal from what had already
been raised and considered by this court in Henry II. Accordingly, these issues are res
judicata. Green, supra, at ¶ 9; State v. Paige, 7th Dist. Mahoning No. 17 MA 0146, 2018-
Ohio-2782, ¶ 18 (“Res judicata bars any claim or defense that was raised or could have
been raised in an earlier proceeding[.]”)


Case No. 18 JE 0019
                                                                                      –5–


                                          CONCLUSION

         {¶13} For the foregoing reasons, Appellant’s sole assignment of error is not well-
taken.     The judgment of the Jefferson County Court of Common Pleas, denying
Appellant’s Crim.R. 33 motion for new trial without a hearing, is affirmed.




Donofrio, J., concurs.

Waite, P.J., concurs.




Case No. 18 JE 0019
[Cite as State v. Henry, 2019-Ohio-3645.]




         For the reasons stated in the Opinion rendered herein, the assignment of error

 is overruled and it is the final judgment and order of this Court that the judgment of the

 Court of Common Pleas of Jefferson County, Ohio, is affirmed. Costs to be waived.

         A certified copy of this opinion and judgment entry shall constitute the mandate

 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that

 a certified copy be sent by the clerk to the trial court to carry this judgment into

 execution.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
