[Cite as State v. Dew, 2016-Ohio-882.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 13 MA 0174
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
GREGORY DEW )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Appellant’s Motion for Reconsideration
Pursuant to App.R. 26(A)
JUDGMENT: Motion Denied.
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: March 4, 2016
[Cite as State v. Dew, 2016-Ohio-882.]
PER CURIAM.
{¶1} Appellant Gregory Dew has filed a motion for reconsideration to this
Court. In it, he asks us to reconsider our decision to affirm the trial court’s denial of
his Crim.R. 33 motion for a new trial. This constitutes Appellant’s sixth filing to this
Court in the same case. For the following reasons, we deny Appellant’s
reconsideration request and again affirm the trial court.
{¶2} 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 initially
sentenced to an aggregate term of 43 years of incarceration. However, his sentence
was reduced after his initial appeal was partially successful in State v. Dew, 7th Dist.
No. 08 MA 62, 2009-Ohio-6537 (“Dew I”).
{¶3} Appellant then filed a motion to reopen his appeal 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, and Appellant then filed a Crim.R.
33(A)(6),(B) motion seeking a new trial with the trial court. The trial court dismissed
Appellant’s motion on the basis that it lacked jurisdiction. Appellant filed an appeal of
this decision in State v. Dew, 7th Dist. No. 12 MA 18, 2013-Ohio-2549 (“Dew III”). In
Dew III, we reversed the trial court’s decision, finding that the court did have
jurisdiction to hear Appellant’s motion. On remand, the trial court granted Appellant’s
motion for leave to file a Crim.R. 33 motion for a new trial, but after holding a hearing
the trial court denied the motion, finding that Appellant failed to raise newly
discovered evidence and because his arguments were barred by res judicata.
Appellant then filed a motion with this Court requesting a delayed reopening of his
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case based on claims surrounding the preservation of a wiretap recording. State v.
Dew, 7th Dist. No. 08 MA 62, 2014-Ohio-4042 (“Dew IV”). This motion was denied.
{¶4} Appellant also appealed the trial court’s denial of his motion for a new
trial in State v. Dew, 7th Dist. No. 13 MA 174, 2016-Ohio-274 (“Dew V”). In Dew V,
we held that all of Appellant’s claims had, or should have, been raised on direct
appeal and are barred by res judicata. Appellant has also filed several motions with
the Chief Justice of the Ohio Supreme Court seeking disqualification of the trial court
judge based on alleged judicial bias. Each of these motions were denied.
{¶5} Dew V is the subject of this current motion for reconsideration.
Preliminarily, Appellant argues that his motion for reconsideration should be
considered timely filed as he did not receive our Opinion until six days after it was
released. Although Appellant seeks an extension based on these grounds, his
motion was filed within the ten-day limit pursuant to App.R. 26(A)(1)(a), and is timely.
{¶6} In his motion, Appellant claims to raise thirteen “Issues Not Properly
Considered By The Court.” Most of these issues are related and will be discussed
together for ease of understanding.
{¶7} First, Appellant argues that in our Opinion we failed to address his
arguments regarding subject matter jurisdiction. Citing State v. Findley, 439 F.2d 970
(1st Cir.1971), Appellant contends that if a defendant is found innocent of a lesser-
included offense and intends to use that finding as a defense at trial, then the trial
court is stripped of its subject matter jurisdiction regarding the highest-level offense.
Appellant argues that, in his case, the trial court’s pre-trial dismissal of the lesser-
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included offense of sexual battery is equivalent to the trial court’s decision that he is
innocent of that offense and should be considered an acquittal. As he believes that
he was “acquitted” of sexual battery, he claims that the trial court lost subject matter
jurisdiction to hear the more serious offense of rape.
{¶8} Appellant’s interpretation of Findley is incorrect. In Findley, the issue
on appeal to the First Circuit was whether the government could appeal a trial court’s
decision to dismiss all or part of an indictment. This decision is clearly inapplicable to
the matter before us. The other federal cases on which Appellant relies involve the
same issue. The Findley issue is not present, here. Rather, the issue before us is
whether the pre-trial dismissal of a sexual battery charge strips the trial court of
jurisdiction to hear a rape charge. Appellant has presented no law favorable to
himself on this issue and none can be found. Accordingly, Appellant’s argument is
without merit.
{¶9} Next, Appellant contends that the trial court must have determined that
he was unavoidably prevented from discovering the evidence he sought to use to
buttress his request for a new trial when it granted his motion for leave to file the
motion. He contends, then, that it was improper for the trial court to later rule against
him on that issue in deciding the merits of his Crim.R. 33 motion. Appellant is
confused as to the concept of a motion for leave. A favorable decision on a motion
for leave does not constitute a determination of the merits or issues raised within the
motion. Since a motion for leave is merely used to seek permission from the court to
file a substantive motion, in this case, a motion for a new trial, granting such a motion
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merely allows a defendant the opportunity to properly ask the court for a decision on
the issues raised: a favorable decision does not speak in any way to a decision on
the actual merits.
{¶10} On November 28, 2011, Appellant filed a motion seeking leave to file a
Crim.R. 33 motion for a new trial. The trial court initially denied Appellant’s motion for
leave based on the court’s belief that it lacked jurisdiction to entertain the motion. On
appeal, we reversed the trial court’s decision after finding that the trial court did have
such jurisdiction. On June 24, 2013, the trial court granted Appellant’s motion,
allowing him to file a Crim.R. 33 motion. The trial court subsequently held a Crim.R.
33 hearing. On October 31, 2013, the trial court determined that Appellant actually
did not rely on newly discovered evidence and that all of the issues raised within
Appellant’s motion were already raised, or should have been raised, on direct appeal.
Hence, the court denied the motion based on res judicata.
{¶11} Contrary to Appellant’s arguments, when the trial court granted his
motion for leave, it merely granted him permission to file a motion seeking a new trial.
The determination that a defendant clearly and convincingly proved that he was
unavoidably prevented from discovering relevant evidence is not made until after the
actual motion for a new trial is filed. State v. Jackson, 11th Dist. No. 2008-T-0077,
2015-Ohio-6, 26 N.E.3d 304. The trial court’s actions, here, were completely
appropriate.
{¶12} Appellant next contends that this Court improperly based its decision on
res judicata. Appellant posits that this Court misconstrued his arguments regarding a
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DVD of his interrogation. He asserts that he did not contend that the DVD itself is
newly discovered; instead, he argued that his belated ability to view the DVD and the
corresponding analysis of its contents are the evidence that he has newly discovered.
However, it is apparent from our Opinion that we understood the nature of Appellant’s
claims and they were fully addressed. We determined that Appellant’s argument was
barred by res judicata because he had possession of the DVD prior to trial and any
and all claims regarding the information it contained could have, and should have,
been raised at trial and on direct appeal.
{¶13} Appellant cites to Manigault v. Ford Motor Co., 96 Ohio St.3d 431,
2002-Ohio-5057, 775 N.E.2d 824 in support of his claims. In Manigault, the Ohio
Supreme Court held that a new trial is the appropriate remedy when a video with
audio is found after trial that already contradicts witness testimony concerning that
same video played at trial without the audio. Id. at ¶9. Manigault is distinguishable
for several reasons. In Manigault, the video with audio was not found until after trial.
Appellant had possession of the DVD in question before trial began. Although he
argues that he was unable to view and analyze this DVD until after trial, it is
inarguable that this evidence, the DVD, was in Appellant’s possession and any
evidentiary value it possesses could have been raised at trial.
{¶14} Appellant claims that he had no reason to believe that the DVD may
have been tampered with until after the trial had ended. Regardless, he had
possession of the DVD prior to and at the time of trial and must have known he was
unable to view it at that time. Although Appellant provides several excuses as to why
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he did not pursue further assistance before trial, none of these are relevant. The
relevant fact regarding Appellant’s argument is that Appellant possessed the DVD
before trial and could have taken action to view and analyze its contents. He
completely failed to do so and did not raise the issue on direct appeal. The DVD and
its evidentiary value, if any, does not amount to newly discovered evidence and his
claims are clearly barred by res judicata.
{¶15} Appellant also claims that this Court misinterpreted his arguments
regarding the issue of jury tampering. Appellant argues that he is not simply
contesting the jury selection. He is additionally arguing that the jury venire printouts
reveal evidence of intentional manipulation. However, this very claim was previously
addressed by this Court. We determined that Appellant could have obtained jury
venire printouts at the time of trial and could have raised this argument on direct
appeal.
{¶16} While Appellant now urges that he was unable to raise this argument in
a more timely manner because he needed time to obtain jury venire printouts from
subsequent jury pools, find an expert, collect data, evaluate the data, and raise funds
to pay for this process, he has not sufficiently demonstrated why this process took six
years or why the analysis he wishes to undertake relies on subsequent jury pools, not
earlier pools. Information on jury venire would be almost immediately available to
Appellant and certainly would not take six years to obtain. Further, Appellant has not
presented any evidence to suggest that the statistical evaluation of such data would
take six years to complete. Appellant’s argument as to insufficient funding is equally
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unsupported. Regardless, Appellant’s claims in this regard are both tardy and highly
speculative, and so do not constitute newly discovered evidence sufficient to
withstand res judicata.
{¶17} Appellant next argues that he had no reason to know that his case had
been improperly “steered” to a particular judge. However, and again, as already
discussed, Det. Flara allegedly made the statement that alerted Appellant to believe
that his case was improperly assigned at his interrogation, long before trial. Thus, as
he admits he was aware of this alleged issue before trial, it could and should have
been raised at that time.
{¶18} Appellant also argues that he was not represented at the interrogation,
and had no reason to know that this statement was evidence of case steering.
Appellant was certainly represented at trial and during his direct appeal. We note
that he is currently unrepresented and was able to raise this issue without the
assistance of counsel. Regardless, the record in this matter reflects that Appellant
could have raised this argument on direct appeal and he is barred from doing so,
now.
{¶19} Appellant next argues that this Court improperly ruled that his argument
as to the jury instructions are barred by res judicata. Appellant claims that he has
submitted newly discovered evidence in the form of an affidavit from a juror who
stated that he would have found Appellant not guilty if not for the trial court’s
instructions on the element of force. However, this Court determined in Dew I that
the trial court’s instructions on force were proper. It is irrelevant that a juror would
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have voted differently if he had been instructed differently, because the instructions
given were completely proper. As his real argument regarding jury instructions has
been raised and considered on direct appeal, it is clearly now barred, as it is res
judicata.
{¶20} Appellant argues that we misconstrued his arguments regarding judicial
bias. Appellant states that he is not arguing that the judge should have been
disqualified from his hearing. Rather, he claims that his motion was not heard before
an unbiased judge due to comments made by the judge at the motion hearing.
Again, this argument has been raised and addressed. We have already determined
that although the judge’s comments were inartful, they do not raise a claim of bias.
This issue is also barred by res judicata.
{¶21} Appellant complains that the trial court improperly denied his request to
present witness testimony at the hearing on his motion for a new trial. However, the
trial court correctly determined that Appellant raises no new, relevant evidence and
that each of his arguments either were, or could have been, addressed on direct
appeal in this case. Thus, witness testimony would have served no purpose. Even
so, the state is correct that Crim.R. 33 does not require a judge to allow witness
testimony.
{¶22} Finally, Appellant appears to argue that this Court failed to address his
arguments regarding actual innocence. However, Appellant presented no
assignment of error and failed to otherwise present an actual innocence argument.
As this issue was not raised by Appellant, it was not addressed within our Opinion.
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To the extent that Appellant now argues such a claim, he is confused, both as to the
role of an appellate court and of a trial court following an unfavorable jury verdict.
Appellant has no entitlement to a new trial simply on the basis that he continues to
maintain his innocence. And it is never the role of a court of review to address
claims, directly. We are a reviewing court and it is not the role of this Court to act as
a factfinder. In re M.B., 9th Dist. No. 21760, 2004-Ohio-597, ¶9-10. “We do not
conduct an initial weighing of the evidence or reach initial legal conclusions.” Id. at
¶10. Regardless, Appellant now seeks reconsideration of our earlier decision to
affirm the trial court’s denial of his motion seeking a new trial.
The test generally applied upon the filing of a motion for reconsideration
in the court of appeals is whether the motion calls to the attention of the
court an obvious error in its decision, or raises an issue for
consideration that was either not considered at all or was not fully
considered by the court when it should have been.
Columbus v. Hodge, 37 Ohio St.3d 68, 523 N.E.2d 515 (10th Dist.1987), paragraph
one of the syllabus.
{¶23} Appellant raises no error in this Court’s decision, obvious or otherwise.
Appellant cites to no issue not previously addressed by us. He merely dislikes our
conclusions as to those issues. “Reconsideration motions are rarely considered
when the movant simply disagrees with the logic used and conclusions reached by
an appellate court.” State v. Himes, 7th Dist. No. 08 MA 146, 2010-Ohio-332, ¶4,
citing Victory White Metal Co. v. N.P. Motel Syst., 7th Dist. No. 04 MA 245, 2005-
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Ohio-3828; Hampton v. Ahmed, 7th Dist. No. 02 BE 66, 2005-Ohio-1766. Here,
Appellant merely disagrees with the logic and conclusions reached by this Court.
Accordingly, Appellant’s motion for reconsideration is denied.
Waite, J., concurs.
Donofrio, P.J., concurs.
DeGenaro, J., concurs.