[Cite as State v. Smith, 2011-Ohio-2189.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 23945
vs. : T.C. CASE NO. 04CR3554
RONALD A. SMITH : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 6th day of May, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; R. Lynn Nothstine, Asst.
Pros. Attorney, Atty. Reg. No.0061560, P.O. Box 972, Dayton, Ohio
45422
Attorneys for Plaintiff-Appellee
Ronald A. Smith, #516-443, P.O. Box 56, London, Ohio 45036
Defendant-Appellant, Pro Se
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Ronald Smith, appeals from a final judgment
denying his motion for a new trial based on a claim of newly
discovered evidence.
{¶ 2} In 2005, Defendant was found guilty following a jury
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trial of aggravated burglary and aggravated robbery. The trial
court sentenced Defendant to consecutive ten year prison terms,
for a total sentence of twenty years. We affirmed Defendant’s
convictions and sentences on direct appeal. State v. Smith,
Montgomery App. Nos. 21463, 22334, 2008-Ohio-6330. In our
Opinion, at ¶3-8, we set forth the facts of this case as follows:
{¶ 3} “During the evening hours of September 27, 2004, two
African-American males, one identifying himself as ‘Little
Ronnie,’ kicked in the front door of Latisha Robinson's apartment
and entered. The man identifying himself as Little Ronnie, was
armed with a gun. He got in her face and demanded to know where
her boyfriend, Corey Pullings, was. The other man went to her back
door and opened it, allowing three additional men to enter the
apartment.
{¶ 4} “When Robinson denied any knowledge of Pullings, Little
Ronnie went upstairs in the apartment, tearing the handrail off
the wall, and he went into Robinson's bedroom putting the gun to
her son's head. He then demanded Robinson give him something to
get him to leave. Robinson gave one of the men sixty dollars and
her cell phone.
{¶ 5} “Meanwhile, the four men downstairs ransacked Robinson's
apartment, toppling furniture and rummaging through boxes,
throwing things to the floor. The men took additional items from
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the apartment, including radios and CD's. During the ransacking
of the apartment, the gunman, who repeatedly identified himself
as ‘Little Ronnie,’ and Robinson were engaged in a confrontation
in the dining room where he attempted to force Robinson to lay
on the floor ‘like execution style.’ Finally, after the other men
exited the apartment, ‘Little Ronnie’ ran out, too.
{¶ 6} “Robinson then escaped to a neighbor's apartment, where
the police were called. The next day, Detective Ward, of the
Montgomery County Sheriff's Office prepared a photo spread
containing a picture of Ronald Smith, the only individual the
detective knew that called himself ‘Little Ronnie.’ Robinson could
not identify anyone in the photo spread. Subsequently, when
Robinson was viewing serial photos on the detective's computer
screen, a photo of Smith came up, showing his gold teeth that were
not displayed in the prior photo. Robinson indicated that this
picture of Smith ‘could possibly be the person who was in [her]
house.’
{¶ 7} “Subsequently, a neighbor, who had opened his door while
Smith and the others were knocking at Robinson's door, immediately
picked out Smith from a photo spread as the man at her door, and
who had identified himself as Little Ronnie.
{¶ 8} “Smith was arrested. After being Mirandized, Smith
admitted that he and four others went to Robinson's apartment
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looking for Corey Pullings, but claimed that he left after being
told that he was not there. He claimed that one of the other men
kicked in the door and entered, but denied that he ever entered
the apartment. Prior to trial, Smith made a number of phone calls
attempting to get Robinson to take a payoff to drop the charges,
and attempting to set up an excuse for why he was in the area.”
{¶ 9} Since he was convicted and sentenced in 2005, Defendant
has over the years filed twelve separate motions for a new trial,
the most recent of which is the subject of this appeal. On February
10, 2010, Defendant filed that motion for a new trial on February
10, 2010 based upon a claim of newly discovered evidence. Crim.R.
33(A)(6). In support of his motion, Defendant attached his own
affidavit and the affidavit of Theron Lewis, a fellow prison inmate.
{¶ 10} Lewis stated in his affidavit that he was present when
this crime occurred, and that he saw Laquan Scandrick, aka “Little
Ronnie,” and another man kick open the door to Latisha Robinson’s
apartment and go inside. The next day Lewis purchased a birth
certificate from Scandrick that had been stolen from Robinson’s
apartment. Lewis claims that Defendant was wrongly convicted for
a crime that Scandrick committed. In his own affidavit, Defendant
claims that he was unavoidably prevented from discovering Lewis’s
new evidence, within one hundred and twenty days after the guilty
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verdicts were rendered because he did not know Theron Lewis until
they met in prison on January 26, 2010. Crim.R. 33(B).
{¶ 11} On March 1, 2010, the trial court summarily denied
Defendant’s motion for a new trial without a hearing. Based upon
Defendant’s history of repeatedly trying to obstruct justice in
this case both before and after the guilty verdicts were rendered,
including the filing of a false witness affidavit, the trial court
concluded that Defendant’s affidavit is not credible, and he has
not demonstrated by clear and convincing proof that he was
unavoidably prevented from discovering the facts in Lewis’
affidavit. The court further concluded, based upon the evidence
presented at the trial, that Defendant has failed to show a strong
probability that the proposed testimony of Theron Lewis would
change the result of the trial.
{¶ 12} Defendant timely appealed to this court from the trial
court’s decision overruling his latest motion for a new trial.
FIRST ASSIGNMENT OF ERROR
{¶ 13} “THE TRIAL JUDGE ABUSED HIS DISCRETION BY OVERRULING
THE MOTION FOR NEW TRIAL FILED FEBRUARY 10, 2010 WITHOUT FIRST
CONDUCTING A EVIDENTIARY HEARING.”
{¶ 14} “The decision whether to grant a motion for a new trial
lies within the sound discretion of the trial court and will not
be disturbed on appeal absent an abuse of that discretion. State
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v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54.
{¶ 15} “‘Abuse of discretion’ has been defined as an attitude
that is unreasonable, arbitrary or unconscionable. Huffman v. Hair
Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482
N.E.2d 1248, 1252. 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.
{¶ 16} “‘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
Redevelopment (1990), 50 Ohio St.3d 157, 161, 553 N.E.2d 597.
{¶ 17} “Pursuant to Crim.R. 33(A)(6), a new trial may be granted
when new evidence material to the defense is discovered that the
defendant could not with reasonable diligence have discovered and
produced at trial. To prevail on a motion for new trial based upon
newly discovered evidence, Defendant must show that the new
evidence: (1) discloses a strong probability that the result of
the trial would be different if a new trial were granted; (2) has
been discovered since the trial; (3) is such as could not have
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been discovered before the trial through the exercise of due
diligence; (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. Petro (1947), 148 Ohio
St. 505, 76 N.E.2d 370.
{¶ 18} “Motions for a new trial based upon newly discovered
evidence must be filed within one hundred twenty days after the
verdict was rendered unless it appears by clear and convincing
proof that Defendant was unavoidably prevented from discovering
the new evidence, in which case the motion for new trial must be
filed within seven days from the order of the court finding that
Defendant was unavoidably prevented from discovering the new
evidence within the one hundred twenty day period. Crim.R. 33(B).”
State v. DeVaughns, Montgomery App. No. 23720, 2011-Ohio-125 at
¶16-20.
{¶ 19} The guilty verdicts in this case were returned by the
jury on September 7, 2005. This motion for a new trial was filed
on February 10, 2010, over four years and four months after the
guilty verdicts. Obviously, Defendant’s motion for a new trial
is untimely, and he was required to demonstrate by clear and
convincing proof that he was unavoidably prevented from discovering
the new evidence within one hundred and twenty days after the guilty
verdicts were rendered. The trial court concluded that Defendant
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failed to do that.
{¶ 20} The court’s finding that Defendant failed to demonstrate
that he was unavoidably prevented from discovering the new
evidence was based upon its conclusion that Defendant’s affidavit
is not credible. That was based, in part, upon what the court
called the suspicious timing of Defendant’s affidavit, which was
signed on February 1, 2010, just twenty-two days after the Ohio
Supreme Court had affirmed Defendant’s conviction and sentence.
State v. Smith, 124 Ohio St.3d 116, 2009-Ohio-6539. The trial
court described it as “an incredible coincidence” that in such
a short time after the Supreme Court’s decision upholding
Defendant’s conviction, “Smith should have the good luck of
discovering this new exculpatory witness.” The trial court’s
finding that Defendant’s affidavit is not credible was also based,
in part, upon Defendant’s repeated efforts to obstruct justice
in this case, both before and after the trial, and his filing
of a false affidavit from Elonda Lewis in support of a previous
motion for a new trial.
{¶ 21} We find no abuse of discretion in the trial court’s denial
of Smith’s motion on the court’s finding that his affidavit is
not credible. Further, even had Defendant demonstrated by clear
and convincing proof that he was unavoidably prevented from
discovering the facts alleged in Theron Lewis’ affidavit within
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one hundred twenty days after the guilty verdicts, he failed to
demonstrate a strong probability that this new evidence would
change the result of the trial.
{¶ 22} Latisha Robinson, the victim, testified at trial that
the primary assailant referred to himself as “Little Ronnie.”
Patty Swain, who has known Defendant for four years, testified
that everyone refers to Defendant as “Little Ronnie.” Robinson
also testified that “Little Ronnie” had gold teeth and nappy hair.
Robinson’s neighbor, Thomas Johnson, testified that the man he
observed from his doorway had gold teeth and braided hair. Johnson
identified Defendant from a photospread as that man. Detective
Ward testified that Defendant had gold teeth. Defendant’s former
girlfriend, Tyelisha Ross, testified that the day before police
arrested Defendant, he had his cousin cut off his braided hair.
{¶ 23} In his statement to Detective Ward, Defendant placed
himself at Robinson’s front door. He claimed he had been paid
to beat up Robinson’s boyfriend, Cory Pullings. According to
Defendant, when Robinson said Cory Pullings was not there, he left.
Patty Swain testified that she participated in a three way
telephone conversation with Defendant and Tyelisha Ross during
which Defendant asked Swain to act as a “go between” and offer
Latisha Robinson $1,500.00 to drop the charges. Ross confirmed
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that this conversation occurred.
{¶ 24} In Dayton v. Martin (1987), 43 Ohio App.3d 87, 90, we
wrote:
{¶ 25} “While Petro stands for the proposition that newly
discovered evidence that merely impeaches or contradicts other
evidence is not enough for a new trial, we do not read Petro as
establishing a per se rule excluding newly discovered evidence
as a basis for a new trial simply because that evidence is in the
nature of impeaching or contradicting evidence. The test is whether
the newly discovered evidence would create a strong probability
of a different result at trial, or whether it is merely impeaching
or contradicting evidence that is insufficient to create a strong
probability of a different result.” (Internal citations omitted.)
{¶ 26} In view of the evidence that was introduced at
Defendant’s trial, we find that Defendant has failed to demonstrate
a strong probability that the new evidence would change the result
if a new trial were granted. The trial court did not abuse its
discretion by overruling Defendant’s motion for a new trial without
a hearing.
{¶ 27} Defendant’s assignment of error is overruled. The
judgment of the trial court will be affirmed.
DONOVAN, J. And HALL, J., concur.
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Copies mailed to:
R. Lynn Nothstine, Esq.
Ronald A. Smith
Hon. Dennis J. Langer