[Cite as State v. Dew, 2016-Ohio-274.]                                                  -1-

                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


STATE OF OHIO                                  )    CASE NO. 13 MA 174
                                               )
        PLAINTIFF-APPELLEE                     )
                                               )
VS.                                            )    OPINION
                                               )
GREGORY DEW                                    )
                                               )
        DEFENDANT-APPELLANT                    )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from the Court of
                                                    Common Pleas of Mahoning County,
                                                    Ohio
                                                    Case No. 07 CR 1262

JUDGMENT:                                           Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                             Atty. Paul J. Gains
                                                    Mahoning County Prosecutor
                                                    Atty. Ralph M. Rivera
                                                    Assistant Prosecuting Attorney
                                                    21 West Boardman Street, 6th Floor
                                                    Youngstown, Ohio 44503

For Defendant-Appellant:                            Gregory Dew, Pro se
                                                    #543-986
                                                    Trumbull Correctional Institution
                                                    P.O. Box 901
                                                    Leavittsburg, Ohio 44430

JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                    Dated: January 21, 2016
[Cite as State v. Dew, 2016-Ohio-274.]
WAITE, J.


        {¶1}     Appellant Gregory Dew appeals an October 31, 2013 judgment entry

denying his Crim.R. 33(A)(6) motion for a new trial. Following jury trial Appellant was

convicted on four counts of rape, in violation of R.C. 2907.02(A)(2)(B); two counts of

gross sexual imposition, in violation of R.C. 2907.05(A)(1)(B); and one count of

corrupting a minor, in violation of R.C. 2907.04(A).          Appellant has filed several

appeals with this Court since his conviction.

        {¶2}     Appellant now contends that the trial court erroneously denied his

motion for a new trial. He additionally argues that the trial court judge exhibited bias

against him. As each of Appellant’s arguments have been raised on direct appeal or

should have been so raised, they are barred by res judicata.             Accordingly, his

arguments are without merit and the judgment of the trial court is affirmed.

                                  Factual and Procedural History

        {¶3}     In 2007, Appellant was convicted on four counts of rape, two counts of

gross sexual imposition, and one count of corruption of a minor. He was sentenced

to an aggregate term of 43 years of incarceration. Appellant appealed his conviction

and was partially successful in State v. Dew, 7th Dist. No. 08 MA 62, 2009-Ohio-6537

(“Dew I”).      Shortly thereafter, Appellant filed a motion to reopen his appeal to

challenge his conviction based on a claim of ineffective assistance of counsel in State

v. Dew, 7th Dist. No. 08 MA 62, 2012-Ohio-434 (“Dew II”). This motion was denied.

        {¶4}     Appellant then filed a Crim.R. 33(A)(6) motion for a new trial with the

trial court. The trial court dismissed Appellant's motion based on the belief that the

court lacked jurisdiction. However, we reversed the trial court’s decision because the
[Cite as State v. Dew, 2016-Ohio-274.]                                                 -2-

court did have such jurisdiction. State v. Dew, 7th Dist. No. 12 MA 18, 2013-Ohio-

2549 (“Dew III”).

        {¶5}     While Dew III was pending before us, Appellant filed a fourth appeal

requesting a delayed reopening of his case based on claims surrounding the

preservation of a wiretap recording. State v. Dew, 7th Dist. No. 08 MA 62, 2014-

Ohio-4042. This appeal was denied.

        {¶6}     Appellant has also filed two separate motions with the Chief Justice of

the Ohio Supreme Court requesting recusal of the trial court judge based on a claim

of bias. The chief justice denied each of these motions and an additional motion for

reconsideration. Hence, Appellant’s motion for a new trial was heard by the same

judge who presided over his trial.

        {¶7}     The trial court conducted a Crim.R. 33 evidentiary hearing pursuant to

Appellant’s motion for a new trial. Appellant presented the following arguments: (1)

someone within the jury commission office intentionally tampered with the computer

software that generates a jury venire and caused Appellant's jury venire to have a

disproportionate number of persons related to local law enforcement; (2) the state

intentionally tampered with a DVD file that contained Appellant's interrogation video;

(3) the state “steered” the case to a specific judge to gain a perceived advantage

over Appellant; and (4) the trial court erroneously instructed the jury on force or threat

of force. Appellant introduced several affidavits from various witnesses in support of

his arguments.

        {¶8}     At the Crim.R. 33 hearing, the trial court determined that Appellant was

barred from raising the alleged error related to the jury venire pursuant to Crim.R. 29,
[Cite as State v. Dew, 2016-Ohio-274.]                                                  -3-

which requires a defendant to raise any such errors before the trial begins. In the

trial court's judgment entry, the court found that Appellant failed to present evidence

to suggest that anyone in the jury commission office tampered with the software. As

to the DVD file, the trial court similarly held that Appellant failed to provide evidence

to show that someone tampered with the file.               The court also found that the

“evidence” was not newly discovered, as Appellant had been provided the DVD

before his trial began.         Next, the trial court held that Appellant was barred from

contesting the jury instructions as that issue had already been resolved by this Court.

Finally, the trial court found that Appellant had failed to provide evidence that his

case was “steered” by the state to a specific judge.                As each of Appellant's

arguments lacked merit, the trial court denied the motion for a new trial. Appellant

has filed a timely appeal of the trial court's ruling.           For ease of understanding,

Appellant’s assignments of error will be discussed out of order.

                                     Third Assignment of Error

        TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

        APPELLANT'S MOTION ON THE MERITS.

        {¶9}     Before a trial court may grant a motion for a new trial in a criminal case

on the basis of newly discovered evidence, the defendant must show that the new

evidence: (1) raises a strong probability that the result of the case will change if a

new trial is granted, (2) has been discovered since the trial, (3) could not have been

discovered prior to trial through the exercise of due diligence, (4) is material to the

issues, (5) is not cumulative to other known evidence, and (6) does not merely
[Cite as State v. Dew, 2016-Ohio-274.]                                               -4-

impeach or contradict the other known evidence. State v. Barber, 3 Ohio App.3d

445, 447, 445 N.E.2d 1146 (10th Dist.1982), citing State v. Petro, 148 Ohio St. 505,

76 N.E.2d 370 (1947).

        {¶10} A criminal defendant is barred “from raising and litigating in any

proceeding, except an appeal from that judgment, any defense or any claimed lack of

due process that was raised or could have been raised by the defendant at the trial

that resulted in that judgment of conviction or on appeal from that judgment.” Dew III

at ¶26, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph

nine of the syllabus.

        {¶11} Failure to raise an issue in the trial court waives all but a plain error

review. State v. Hill, 92 Ohio St.3d 191, 196, 749 N.E.2d 274 (2001), citing State v.

Williams, 51 Ohio St.2d 112, 117, 364 N.E.2d 1367 (1972). “Plain error is one in

which but for the error, the outcome of the trial would have been different.” State v.

Peck, 7th Dist. No. 12 MA 205, 2013-Ohio-5526, ¶13, citing State v. Hancock, 7th

Dist. No. 09-JE-30, 2010-Ohio-4854, ¶55, citing State v. Long, 53 Ohio St.2d 91, 97,

372 N.E.2d 804 (1978).             “Plain error should only be recognized in exceptional

circumstances to prevent the miscarriage of justice.” State v. Love, 7th Dist. No. 02

CA 245, 2006-Ohio-1762, ¶14, citing State v. Lundgren, 73 Ohio St.3d 474, 485, 653

N.E.2d 304 (1995).

        {¶12} Appellant raises several sub-issues within this assignment of error. For

ease of understanding, each argument will be addressed separately.

                    Workable DVD Not Provided to Defense/DVD Altered
[Cite as State v. Dew, 2016-Ohio-274.]                                                -5-

        {¶13} Appellant concedes that the state provided him with a DVD containing a

file of the video of his interrogation. However, he claims that the file was password

protected and he was not provided with a working password. Appellant claims that

he later learned that the video statement was longer in duration than the audio file,

which was used at trial. As he was unable to open and view the video file, he argues

that he could not determine that the file was corrupted until after the trial ended.

Appellant concedes that the DVD itself was technically available to him at the time of

trial but argues that his later analysis of the DVD is separate and newly discovered

evidence that was not available during trial, and provides grounds for a new trial.

        {¶14} The state responds by arguing that Appellant has failed to produce any

evidence to suggest that he was unable to timely view the contents of the DVD file.

Even so, the state offers an explanation as to why the video statement is longer than

the audio file, which was used at trial. The state explains that Det. Flara controlled

the audio recorder and when he left the room after the interrogation ended, the

recorder was turned off. The state explains that the video recorder, on the other

hand, was turned on before the interrogation began and remained on even after the

interrogation ended and additionally contains video of Appellant signing paperwork.

Thus, even if the time discrepancy were considered newly discovered evidence,

there is nothing to suggest tampering took place and the “evidence” not exculpatory.

        {¶15} At the Crim.R. 33 motion hearing, Appellant presented an affidavit from

SecureState, an independent computer forensic laboratory as evidence on the issue

of the alleged tampering.           Attached to the affidavit was a report generated from

SecureState’s investigation of the DVD file. According to the report, there was a 1
[Cite as State v. Dew, 2016-Ohio-274.]                                               -6-

hour, 14 minute and 25 second time difference between the length of the audio and

video files. According to an affidavit by Appellant's brother, Roy J. Dew, who is

described as a “Certified Information Systems Auditor,” he was able to view the file

after he was able to determine the password and open the file.

        {¶16} During the motion hearing, the trial court pointed out that the state had

provided Appellant with the DVD before the trial began, thus it was not newly

discovered. The court explained that it was the defense’s obligation at the time to

inform the court if the video could not be viewed.         Accordingly, the trial court

concluded that any alleged tampering was discoverable before the trial commenced.

However, the trial court agreed to accept the affidavit and consider Appellant’s

arguments before making a final ruling. In its judgment entry, the trial court held that

Appellant had not presented any evidence to suggest that the state violated Crim.R.

16 or withheld any evidence related to the DVD.

        {¶17} Appellant concedes that the DVD itself is not newly discovered

evidence.       He argues that the analysis performed by SecureState is newly

discovered evidence, as it was not available to him until recently, after he was finally

able to open the file. However, as Appellant had access to the DVD file before his

trial began, the trial court correctly determined that none of his “evidence” is newly

discovered. While Appellant claims that he could not open the file at the time of trial,

there is nothing in the record to show why Appellant could not have simply asked for

the password or sought and obtained an expert to determine the password (as

Appellant's brother was able to do in 2011) and timely view the DVD. Importantly,

Appellant had a remedy available to him in the form of a direct appeal. Not only did
[Cite as State v. Dew, 2016-Ohio-274.]                                                    -7-

he fail to raise this issue on direct appeal, he also failed to raise it in three appeals

filed subsequent to his direct appeal. As such, he is barred by the principle of res

judicata from raising this argument, now.

        {¶18} Appellant argues that res judicata does not prevent this Court from

reviewing his argument for plain error. However, as Appellant could have obtained

the evidence with reasonable diligence at the time of trial, and the state has a

plausible argument for the alleged discrepancy, Appellant cannot show that “but for”

some error, the outcome would be different. Therefore, he has not shown plain error.

                         Alleged Tampering with Jury Venire Software

        {¶19} Appellant argues that it is almost statistically impossible for software to

randomly select such a high number of persons for a jury venire who are related to

members of local law enforcement as it did in his case. Based on this statistical

improbability, Appellant argues that someone within the Mahoning County Jury

Commission Office tampered with the software before his jury venire was generated.

To support his argument, Appellant presented affidavits from Laurence Miller, Ph.D.

and Jude Summerfeld, P.E.                According to Appellant, the affidavits discussed the

statistical improbability of his jury venire and the potential bias that families of law

enforcement might hold. Appellant also argues that several code numbers that are

used to randomly generate a jury venire are missing from the printout, which also

suggests to Appellant that someone tampered with the software.

        {¶20} During the motion hearing, the trial court stated that Appellant had

waived this argument. Pursuant to Crim.R. 24, issues regarding the makeup of a jury

venire must be addressed before the commencement of trial. Despite this procedural
[Cite as State v. Dew, 2016-Ohio-274.]                                                -8-

bar, the trial court agreed to accept Appellant’s affidavits and review them before

entering a final ruling. The trial court ruled in its final judgment entry that Appellant

failed to present any actual evidence to support his theory that someone in the jury

commission office tampered with the jury venire process.

        {¶21} Crim.R. 24(F) states:

        The prosecuting attorney or the attorney for the defendant may

        challenge the array of petit jurors on the ground that it was not selected,

        drawn or summoned in accordance with law. A challenge to the array

        shall be made before the examination of the jurors pursuant to division

        (B) of this rule and shall be tried by the court.


        No array of petit jurors shall be set aside, nor shall any verdict in any

        case be set aside because the jury commissioners have returned such

        jury or any juror in any informal or irregular manner, if in the opinion of

        the court the irregularity is unimportant and insufficient to vitiate the

        return.

        {¶22} Despite the procedural bar placed on Appellant’s argument by Crim.R.

24(F), the trial court made a final ruling on the merits of his argument. Either way, as

was the case with the DVD file, any alleged tampering with the jury venire software

could and should have been raised in Appellant’s direct appeal. Appellant argues

that this evidence was not available to him, as he would need to compare his jury

venire report to subsequent jury venire reports in order to determine that his was

abnormal.
[Cite as State v. Dew, 2016-Ohio-274.]                                                -9-

        {¶23} Even if we were persuaded by his argument, Appellant not only failed to

raise this issue on direct appeal but also failed to raise it in his three subsequent

appeals. He has offered no explanation as to why he could not obtain jury venire

printouts from other trials in a more timely manner. This is significant, as six years

passed between his conviction and his filing of the Crim.R. 33 motion.              It is

implausible that it would take such a long period of time to merely obtain other jury

venire printouts. Further, while his statistical arguments are interesting, they provide

absolutely no evidence of tampering. We find that his tampering claim could have

been raised on direct appeal, and is barred by the principle of res judicata.

                                   Allegation of “Case Steering”

        {¶24} Appellant argues that he presented evidence to demonstrate that the

state improperly steered his case to a specific judge in order to obtain a perceived

advantage. First, he claims that he has recently been able to view portions of his

videotaped interrogation, including the portion where Det. Flara identifies the judge

assigned to his case. Appellant argues that his case should not have been assigned

to a judge at that point as he had not yet been arraigned.

        {¶25} Appellant again resorts to statistical analysis. He argues that there are

only five common pleas court judges in Mahoning County, giving him a twenty

percent chance of being assigned to any one judge. As he believes that these odds

are low, he argues that it provides support for his argument that his case was steered

to a judge favorable to the prosecution.           Also, according to Appellant, the Ohio

Supreme Court’s Case Flow Management and Operational Review of Mahoning

County Courts of Common Pleas revealed that cases within the county were
[Cite as State v. Dew, 2016-Ohio-274.]                                             -10-

improperly assigned at bindover instead of at arraignment, as required. Appellant

believes that this also evidences case steering.

        {¶26} Case steering, also referred to as “judge shopping,” occurs when a

party attempts to have their case assigned to a particular judge based on a perceived

advantage and belief that the desired judge will issue a favorable ruling to that party.

As evidence of case steering, Appellant relies on the previously discussed DVD file,

statistics, and a report from the Ohio Supreme Court.           However, this record

demonstrates that all of this evidence was available to Appellant at trial and could

have been addressed in a direct appeal.

        {¶27} As we have already discussed, it is because of Appellant’s own lack of

diligence in obtaining an expert to open the DVD file that he was allegedly prevented

from viewing the file. Not only was this DVD file of Det. Flara's alleged statement

previously available to Appellant, but Det. Flara apparently made the statement

directly to Appellant at the interrogation. Clearly, Appellant then knew about Det.

Flara’s statement before his trial began. He also knew that he had not yet been

arraigned. As such, this argument was available to him and he could have raised this

issue on direct appeal. As to the statistical analysis, even if this could be used as

evidence of case steering, it is also information that was previously available to

Appellant using due diligence. Finally, the Supreme Court report to which Appellant

refers was generated in 2007. It was certainly available to him years ago.

        {¶28} Based on the availability of each piece of evidence offered at his motion

hearing, Appellant could have raised this argument on direct appeal. As Appellant

failed to do so, he is now barred by res judicata.
[Cite as State v. Dew, 2016-Ohio-274.]                                              -11-

                                         Incorporated Arguments

        {¶29} Appellant also incorporates by reference arguments which appear on

pages nineteen through forty-two of his written motion for a new trial. Appellant has

not properly raised these additional arguments on appeal. However, a review of

these arguments demonstrates that most have been waived, as they pertain to trial

issues that should have been raised on direct appeal. These include allegations of:

(1) trial court error in holding the arraignment without Appellant or his counsel

present; (2) trial court error allowing the state to refile charges against him after the

first set of charges were dismissed; (3) trial court stating that it viewed the DVD, yet

Appellant’s copy could not be opened; (4) trial court attempts to “coerce” Appellant

into taking a plea deal; (5) trial court failure to comply with sentencing statutes (R.C.

2929.11 – 2929.14); (6) trial court determining that the victims suffered psychological

harm pursuant to R.C. 2901.01(A)(5)(a); (7) trial court error in ruling on certain

objections made at trial; (8) trial court allowing the state to make “false” statements

during closing arguments; (9) trial court permitting the state to refer to him as a “con

artist, liar, and sex abuser”; (10) trial court allowing the state to admit “surprise

evidence”; (11) trial court’s sealing of Appellant’s files shortly after a photograph of

the judge and the jury commissioner appeared in “The Vindicator;” and (12) trial court

improperly denying his Crim.R. 29 motion at trial. As all of these alleged errors could

and should have been raised on direct appeal, they are barred by res judicata

        {¶30} In addition to these unpreserved errors, Appellant has already raised

the following alleged errors in Dew I, Dew II, Dew III, and Dew IV: (1) there was no

physical force or threat of force used in commission of the crimes and a coach does
[Cite as State v. Dew, 2016-Ohio-274.]                                                 -12-

not qualify as in loco parentis; (2) the trial court improperly denied his request to view

the Grand Jury transcripts; (3) the trial court improperly granted the state’s motion for

joinder; (4) the trial court improperly allowed the state to alter the wiretap; and, (5) the

trial court provided incorrect jury instructions. As these issues were already raised

and decided on appeal, res judicata also bars Appellant from raising these issues a

second time.

        {¶31} Accordingly, Appellant’s third assignment of error is without merit and is

overruled.

                                         First Assignment of Error

        APPELLANT           DID NOT           RECEIVE     A   HEARING   BEFORE   AN

        UNBIASED, UNPREJUDICED AND DISINTERESTED JUDGE WHO

        ABUSED HIS DISCRETION IN VIOLATION OF APPELLANT'S

        CONSTITUTIONAL RIGHT TO DUE PROCESS.

        {¶32} It is well-established that a criminal defendant who is tried before a

biased judge has been denied due process. State v. LaMar, 95 Ohio St.3d 181,

2002-Ohio-2128, 767 N.E.2d 166, ¶34, citing Rose v. Clark, 478 U.S. 570, 577, 106

S.Ct. 3101, 92 L.Ed.2d 460 (1986); Tumey v. Ohio, 273 U.S. 510, 534, 47 S.Ct. 437,

71 L.Ed. 749 (1927).

        {¶33} However, an appellate court does not have the authority to disqualify a

trial court judge or to void his or her judgment based on a claim of judicial bias.

Paparodis v. Snively, 7th Dist. No. 06 CO 5, 2007-Ohio-6910, ¶48, citing State v.

Ramos, 88 Ohio App.3d 394, 398, 623 N.E.2d 1336, (9th Dist.1993). Furthermore,
[Cite as State v. Dew, 2016-Ohio-274.]                                                  -13-

“once the Chief Justice has dismissed an affidavit of disqualification as not well

taken, the ruling of the Chief Justice is res judicata as to the question.” Paparodis at

¶50, citing State v. Getsy, 84 Ohio St.3d 180, 185, 702 N.E.2d 866 (1998).

        {¶34} Here, Appellant claims various instances of judicial bias during both his

trial and Crim.R. 33 hearing. The first alleged instance of bias occurred prior to trial

when the trial court judge was featured in a photograph with the Mahoning County

Jury Commissioner on the front page of the local newspaper. Appellant believes that

this photograph was taken to either show the judge’s support for the jury commission

office or to intimidate Appellant. The second alleged instance occurred during the

sentencing hearing when the trial court judge compared him to a doctor who worked

at a Nazi concentration camp.            Third, Appellant argues that the trial court judge

refused to hear expert witness testimony at the Crim.R. 33 hearing.

        {¶35} Fourth, Appellant complains that the trial court judge contradicted

himself by granting him leave to file a motion for a new trial but denying the actual

motion itself.     Fifth, Appellant contends that the trial court entered its ruling on

October 31, 2013 but the court’s entry was signed two days before, on October 29,

2013. Finally, Appellant takes issue with a comment made by the trial court judge at

the Crim.R. 33 hearing:

        Your client in his brief in effect calls me a liar for saying that I reviewed

        the videotape. He really has trouble believing that I did that and says

        things that are offensive to me. And it doesn’t have anything to do with

        -- I mean, I got to be able to take it or I wouldn’t be sitting here, but
[Cite as State v. Dew, 2016-Ohio-274.]                                                -14-

        those things are particularly offensive and completely unnecessary and

        really -- I’m not allowed to use certain words by direction of our Court of

        Appeals -- but certainly unwise on the part of someone who’s asking

        somebody for relief, I mean as a practical matter. Of course you got to

        say the things that you need to say to make the point, but I want the

        record to be very clear that I would never represent to anyone in a trial

        that I have done something imposed upon me by my sworn duty and

        misrepresent that.          That’s so offensive to me.   Even he should

        understand that

(8/26/13 Motion Hrg., pp. 44-45.)

        {¶36} While the trial court judge’s statement, here, may be inartful, all of

Appellant’s claims regarding judicial bias are barred by res judicata. Appellant has

filed two motions to disqualify the trial court judge (and one motion for

reconsideration) with the Chief Justice of the Ohio Supreme Court. The Chief Justice

denied each of these motions and cautioned Appellant that “the filing of any more

affidavits with these repeated and unsubstantiated allegations may result in the

imposition of appropriate sanctions.” (7/18/13 Judgment Entry, p. 2.) As we stated in

Paparodis, “once the Chief Justice has dismissed an affidavit of disqualification as

not well taken, the ruling of the Chief Justice is res judicata as to the question.” Id. at

¶50. The Chief Justice has ruled on this issue three times. Appellant is barred from

presenting this argument yet again.
[Cite as State v. Dew, 2016-Ohio-274.]                                             -15-

        {¶37} Accordingly, Appellant’s first assignment of error is without merit and is

overruled.

                                    Second Assignment of Error

        APPELLANT WAS DENIED THE OPPORTUNITY TO PRESENT

        WITNESSES            AT     HIS   HEARING     IN   VIOLATION   OF    HIS

        CONSTITUTIONAL RIGHT TO DUE PROCESS.

        {¶38} Although the trial court judge initially told Appellant that he would be

able to present witness testimony at his motion hearing to supplement his affidavits,

the judge changed his mind and refused to allow such testimony. Appellant believes

that due process requires a judge to allow witness testimony where, as in this case,

the evidence involves technical details that a layperson cannot properly articulate.

Appellant urges that this is supported by the judge’s admission that he presented

witness testimony in similar hearings when he was a trial lawyer.            Moreover,

Appellant believes that a judge is required to allow witness testimony pursuant to

State v. Gaines, 1st Dist. No. C-090097, 2010-Ohio-895. Appellant urges that it is

impossible for a judge to rule on the merits of a motion without first hearing expert

testimony where complicated issues have been presented.

        {¶39} The state responds by refuting Appellant’s contention that a judge is

required to hear witness testimony during an evidentiary hearing.            The state

emphasizes that Appellant’s motion was made pursuant to Crim.R. 33(A)(6), which

requires affidavits but makes no mention of witness testimony. As the language of

Crim.R. 33(A)(6) clearly does not require a judge to permit witness testimony, the
[Cite as State v. Dew, 2016-Ohio-274.]                                             -16-

state urges that Appellant’s argument is incorrect. The state also argues that the

evidence presented by Appellant could have been discovered at the time of trial.

Thus, the judge did not abuse his discretion in denying Appellant’s motion, which was

based on a claim of newly discovered evidence.

        {¶40} Pursuant to Crim.R. 33(A)(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.

        {¶41} Appellant specifically argues that the trial court refused to hear witness

testimony as to his arguments regarding the DVD file and the alleged tampering with

the jury venire software. As both of these arguments are barred by res judicata, the

trial court did not err when it declined to hear witness testimony based on procedural

grounds on these issues. Appellant’s second assignment of error is without merit

and is overruled.
[Cite as State v. Dew, 2016-Ohio-274.]                                               -17-

                                         Conclusion

        {¶42} Appellant contends that the trial court erroneously denied his Crim.R.

33 motion for a new trial and that the trial court was biased against him. Each of

Appellant’s arguments within his Crim.R. 33 motion are barred by res judicata. The

trial court did not err in denying the motion or in refusing to hear expert witnesses on

these arguments. Further, the Chief Justice has already ruled that there is no basis

for disqualifying the trial court judge in this case. This argument is similarly barred by

res judicata. Accordingly, Appellant’s arguments are entirely without merit and the

judgment of the trial court is affirmed in full.


Donofrio, P.J., concurs.

DeGenaro, J., concurs.
