[Cite as State v. DeVore, 2020-Ohio-1132.]


                                       COURT OF APPEALS
                                    ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 JUDGES:
                                               Hon. William B. Hoffman, P.J
         Plaintiff-Appellee                    Hon. Patricia A. Delaney, J.
                                               Hon. Earle E. Wise, Jr., J.
 -vs-
                                               Case No. 19-COA-031
 ADAM M. DEVORE

        Defendant-Appellant                    O P I N IO N




 CHARACTER OF PROCEEDINGS:                     Appeal from the Ashland County Court of
                                               Common Pleas, Case No. 17-CRI-002


 JUDGMENT:                                     Affirmed

 DATE OF JUDGMENT ENTRY:                       March 23, 2020


 APPEARANCES:


 For Plaintiff-Appellee                        For Defendant-Appellant

 CHRISTOPHER R. TUNNELL                        ADAM M. DEVORE
 Ashland County Prosecuting Attorney           State I.D. A704-923
                                               Richland Correctional Institute
 COLE F. OBERLI                                P.O. Box 8107
 Assistant Prosecuting Attorney                1001 South Olivesburg Road
 110 Cottage Street                            Mansfield, Ohio 44901
 Ashland, Ohio 44805
Ashland County, Case No. 19-COA-031                                                                       2


Hoffman, P.J.
        {¶1}    Appellant Adam M. DeVore appeals the judgment entered by the Ashland

County Common Pleas Court overruling his motion for new trial. Appellee is the state of

Ohio.

                                       STATEMENT OF THE CASE1

        {¶2}    On January 12, 2017, the Ashland County Grand Jury indicted appellant on

one count of rape in violation of R.C. 2907.02(A)(2), one count of abduction in violation

of R.C. 2905.02(A)(2), and one count of domestic violence in violation of R.C. 2919.25(A).

Following jury trial in the Ashland County Common Pleas Court, Appellant was acquitted

of rape, but convicted of abduction and domestic violence. The trial court sentenced

appellant to 36 months in prison on the abduction conviction and to 36 months in prison

on the domestic violence conviction, to be served consecutively to one another for an

aggregate prison sentence of 72 months.

        {¶3}    This Court affirmed the judgment of conviction and sentence, and the Ohio

Supreme Court denied Appellant's appeal. State v. Devore, 5th Dist. Ashland No. 18-

COA-011, 2018-Ohio-4189, ¶¶ 40-41, appeal not allowed, 154 Ohio St.3d 1502, 2019-

Ohio-345, 116 N.E.3d 155, ¶¶ 40-41 (2019), and appeal not allowed, 155 Ohio St.3d

1457, 2019-Ohio-1759, 122 N.E.3d 217, ¶¶ 40-41 (2019), reconsideration denied, 156

Ohio St.3d 1467, 2019-Ohio-2892, 126 N.E.3d 1177, ¶¶ 40-41 (2019).

        {¶4}    On August 14, 2019, Appellant filed a motion for leave to file a delayed

motion for new trial, and a motion for new trial on the basis of newly discovered evidence.




1 A rendition of the facts is unnecessary for our resolution of the issues raised in this appeal, but can be
found in this Court's opinion on direct appeal of Appellant's conviction and sentence. See State v. Devore,
5th Dist. Ashland No. 18-COA-011, 2018-Ohio-4189.
Ashland County, Case No. 19-COA-031                                                      3


Appellant sought to present an affidavit sworn by Appellant’s housemate. In the affidavit,

Appellant’s housemate represented he was to be a witness for Appellant at trial, but was

never subpoenaed to testify, and was getting a colonoscopy on the day before trial. The

affidavit stated he received a text message from someone claiming to be Appellant’s

attorney, stating not to worry about coming to trial because the judge would not allow him

to testify if he didn’t receive a subpoena.

       {¶5}   The trial court found the affidavit facially demonstrated Appellant was aware

of the existence of the witness at the time of trial, and Appellant was attempting to raise

his own failure to procure the witness’s testimony at trial through a motion for new trial

rather than by raising the issue properly on direct appeal. The trial court concluded the

testimony of the witness was not newly discovered evidence and overruled the motion for

new trial.

       {¶6}   It is from the September 20, 2019 judgment of the court denying his motion

for new trial Appellant prosecutes this appeal, assigning as error:



              I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

       APPELLANT       IN   FINDING     THAT    THE    APPELLANT       WAS     NOT

       UNAVOIDABLY PREVENTED FROM DISCOVERING NEW EVIDENCE.

              II. THE TRIAL COURT ERRED TO THE PREJUDICE OF

       APPELLANT’S RIGHT TO A FAIR TRIAL, AND RIGHT TO TRIAL BY JURY

       WHEN IT FAILED TO CORRECT MANIFEST CONSTITUTIONAL ERROR

       BY ORDERING A NEW TRIAL.
Ashland County, Case No. 19-COA-031                                                             4


       {¶7}    We note, this matter comes before this Court pursuant to the accelerated

calendar and App. Rule 11.1. Accordingly, it is sufficient compliance with Appellate Rule

12(A) for the statement of the reason for the court's decision as to each error to be in brief

and conclusionary form.        This appeal shall be considered in accordance with the

aforementioned rule.

                                                    I.

       {¶8}    In his first assignment of error, Appellant argues the court erred in finding

the affidavit attached to his motion was not newly discovered evidence because the

affidavit did not exist before trial, and further is evidence of the trial court’s efforts to keep

defense witnesses from testifying at trial.

       {¶9}    For the reasons stated in the judgment of the trial court, we find the court

did not err in finding the evidence was not newly discovered. While the affidavit itself did

not exist before trial, the affidavit clearly establishes on its face Appellant knew of the

existence of this witness prior to trial and, as such, he was not unavoidably prevented

from discovering this evidence. Any alleged error in the trial court’s exclusion of witnesses

at trial should have been raised on direct appeal, and is now barred by res judicata.

       {¶10} The first assignment of error is overruled.

                                                   II.

       {¶11} In his second assignment of error, Appellant argues the trial court erred in

overruling his motion for new trial because the evidence at trial was insufficient to convict

him of domestic violence and abduction.

       {¶12} Appellant’s claims concerning weight and sufficiency of the evidence were

raised on direct appeal, and are now barred by res judicata.
Ashland County, Case No. 19-COA-031                                              5


      {¶13} The second assignment of error is overruled.

      {¶14} The judgment of the Ashland County Common Pleas Court is affirmed.




By: Hoffman, P.J.
Delaney, J. and
Wise, Earle, J. concur
