[Cite as State v. Larkins, 2018-Ohio-679.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 16 JE 0032
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION AND
) JUDGMENT ENTRY
FRANK LEE LARKINS, JR. )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Appellant’s Application for
Reconsideration Pursuant to App.R.
26(A)(1).
JUDGMENT: Application Denied.
APPEARANCES:
For Plaintiff-Appellee: Atty. Jane M. Hanlin
Prosecuting Attorney
Atty. Frank J. Bruzzese
Assistant Prosecuting Attorney
Jefferson County Justice Center
16001 State Route 7
Steubenville, Ohio 43952
For Defendant-Appellant: Frank Lee Larkins, Jr., Pro se
#A683-521
Belmont Correctional Institution
68518 Bannock Rd.
P.O. Box 540
St. Clairsville, Ohio 43950
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: February 20, 2018
[Cite as State v. Larkins, 2018-Ohio-679.]
PER CURIAM.
{¶1} Appellant Frank L. Larkins, Jr. requests reconsideration of our Opinion
in State v. Larkins, 7th Dist. No. 16 JE 0032, 2017-Ohio-9369, pursuant to App.R.
26(A). Appellant argues that this Court did not consider the trial court’s failure to
provide a curative instruction following witness testimony involving a prior bad act.
As Appellant's motion is untimely and fails to raise an issue either not considered or
not fully considered by this Court, the application is denied.
{¶2} On August 5, 2015, Appellant was indicted on one count of rape, a
felony of the first degree in violation of R.C. 2907.02(A)(1)(b), (B). Appellant initially
confessed to engaging in consensual sexual conduct with the twelve-year-old victim
but later claimed that his confession was false. At trial, a videotaped interview and
an audio recording of a phone call with his father where he confessed were both
played for the jury and admitted into evidence.
{¶3} On May 19, 2016, the jury found Appellant guilty on the sole charge of
the indictment. The trial court sentenced Appellant to life in prison without parole
eligibility for ten years. Appellant is also required by law to report as a tier three sex
offender. We affirmed Appellant’s conviction and sentence in Larkins, supra.
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.
-2-
Columbus v. Hodge, 37 Ohio App.3d 68, 523 N.E.2d 515 (10th Dist.1987), paragraph
one of the syllabus.
{¶4} App.R. 26(A)(1)(a) states, in relevant part: “[a]pplication for
reconsideration of any cause or motion submitted on appeal shall be made in writing
no later than ten days after the clerk has both mailed to the parties the judgment or
order in question and made a note on the docket of the mailing as required by App.
R. 30(A).”
{¶5} Appellant’s judgment was mailed to his appellate counsel and a note
relevant to this mailing was placed on the docket on December 19, 2017. To be
timely, an application would have been filed no later than December 29, 2017.
However, Appellant did not file his “motion” until January 2, 2018, four days after the
deadline.
{¶6} Pursuant to App.R. 14(B), an “[e]nlargement of time to file an
application for reconsideration or for en banc consideration pursuant to App. R. 26(A)
shall not be granted except on a showing of extraordinary circumstances.” Appellant
contends that his counsel did not mail him a copy of the judgment entry until
December 27, 2017. Appellant has not provided a copy of a mail log or other
evidence supporting this contention. However, even if Appellant’s application could
be considered timely, he fails to raise an issue that was either not considered at all or
was not fully considered by this Court.
{¶7} Appellant complains about our analysis regarding a witness who
testified that Appellant had admitted to engaging in sexual conduct with several
-3-
underage victims. Appellant correctly states that when a witness innocently blurts out
testimony regarding a prior bad act, the remedy is a curative instruction. See State v.
Howard-Ross, 7th Dist. No. 13 MA 168, 2015-Ohio-4810, 44 N.E.3d 304. Appellant
argues that the trial court did not provide such an instruction after a witness in his trial
referred to a prior bad act. Contrary to Appellant’s argument, as stated in our
Opinion, the trial court did provide a curative instruction:
Okay. The Jury is instructed to disregard the witness’ last response as
nonresponsive. You will not consider it for any purpose. It is to be not
considered for any purposes as -- as if you never heard that statement.
It is to be struck. Do you understand that? Okay. All right.
Larkins at ¶ 15.
{¶8} Appellant contends that we erred when we held that he did not suffer
prejudice as a result of the witness’ testimony. It is apparent that Appellant merely
disagrees with the logic used and the conclusion reached by this Court.
“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. Motel
Syst., 7th Dist. No. 04 MA 245, 2005-Ohio-3828; Hampton v. Ahmed, 7th Dist. No. 02
BE 66, 2005-Ohio-1766.
{¶9} In order to prevail on an application for reconsideration, an appellant
must demonstrate an obvious error in our decision or that an issue was raised that
was either not dealt with or was not fully considered. Mere disagreement with this
-4-
Court's logic and conclusions does not support a motion for reconsideration.
Accordingly, Appellant’s application for reconsideration is denied.
Waite, J., concurs.
Donofrio, J., concurs.
Robb, P.J., concurs.