[Cite as State v. Buell, 2018-Ohio-1350.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2017-07-102
: OPINION
- vs - 4/9/2018
:
LISA RENEE BUELL, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 15-CR-30695
David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036, for plaintiff-appellee
George A. Katchmer, 1886 Brock Road, N.E., Bloomingburg, Ohio 43601, for defendant-
appellant
PIPER, J.
{¶ 1} Defendant-appellant, Lisa Buell, appeals a decision of the Warren County Court
of Common Pleas denying her motion for a new trial.
{¶ 2} Buell was convicted of patient abuse after a jury found her guilty of hitting a
disabled patient in the back. During trial, the jury heard evidence from a witness who testified
that through an open window, he saw Buell hit the patient in the back. Buell defended by
Warren CA2017-07-102
arguing that the witness could not see through the window because the window was blocked
by a Christmas tree and fake snow that had been sprayed on the window. Buell appealed
her conviction, and this court affirmed. State v. Buell, 12th Dist. Warren No. CA2015-11-102,
2016-Ohio-5477.
{¶ 3} Approximately a year after her appeal, Buell filed a motion for a new trial and a
motion for leave to file a motion for a new trial based on newly-discovered evidence. The trial
court granted leave to file the motion, and held a hearing on the issue. The trial court denied
the motion, and Buell did not appeal the trial court's decision.
{¶ 4} Approximately six months later, Buell filed a second motion for a new trial,
alleging additional newly-discovered evidence. Buell did not move for leave of court to file
the second motion. The trial court denied the second motion. Buell now appeals the denial
of her second motion for a new trial, raising the following assignment of error:
{¶ 5} THE COURT ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING
ON HER MOTION FOR A NEW TRIAL.
{¶ 6} Buell argues in her assignment of error that the trial court erred in not granting
her motion for a new trial and not holding a hearing before deciding such.
{¶ 7} A trial court's decision denying a request for new trial is reviewed for an abuse
of discretion. State v. Filiaggi, 86 Ohio St.3d 230, 237 (1999). The same is true regarding
the trial court's decision to hold an evidentiary hearing on the motion. State v. Zielinski, 12th
Dist. Warren No. CA2014-05-069, 2014-Ohio-5318, ¶ 16. An abuse of discretion is more
than an error of law or judgment. State v. Williams, 12th Dist. Butler No. CA2003-01-001,
2003-Ohio-5873. In order to constitute an abuse of discretion, the court's attitude must be
unreasonable, arbitrary, or unconscionable. Id.
{¶ 8} According to Crim.R. 33(B), a motion for a new trial based on a claim of newly-
discovered evidence must be filed within 120 days after the day upon which the verdict was
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rendered. The rule permits an untimely motion if the trial court finds by clear and convincing
evidence that the defendant was unavoidably prevented from discovering the evidence within
the given time frame. Id. Clear and convincing evidence is the measure or degree of proof
that is more than a mere preponderance of the evidence, but not to the extent of such
certainty as is required beyond a reasonable doubt, which will produce in the mind of the trier
of facts a firm belief or conviction as to the facts sought to be established. State v. Belcher,
12th Dist. Warren No. CA2016-12-102, 2017-Ohio-6943, ¶ 14.
{¶ 9} To prevail on a Crim.R. 33(A)(6) motion for a new trial on the ground of newly-
discovered evidence, the movant must demonstrate that the evidence (1) discloses a strong
probability that it will change the result if a new trial is granted, (2) has been discovered since
the trial, (3) is such as could not in the exercise of due diligence have been discovered before
the trial, (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, 148 Ohio St. 505
(1947). Evidence is not undiscoverable simply because affidavits were not obtained sooner.
Id. at ¶ 28. Crim.R. 33 motions for a new trial are not to be granted lightly. State v. Hoop,
12th Dist. Brown No. CA2012-10-019, 2013-Ohio-3078.
{¶ 10} After reviewing the record, the trial court did not abuse its discretion in denying
Buell's motion for a new trial, nor in making the decision without first holding a hearing. The
second motion was filed well after the 120-day time frame required by Crim.R. 33(B) because
it was filed a year and eight months after Buell was convicted. The record also indicates that
Buell did not file a motion for leave to file her motion for a new trial out of time. Despite the
lack of a motion for leave, the trial court nonetheless considered Buell's motion and decided
it without first holding a hearing. This decision was not an abuse of discretion where Buell's
own supporting affidavit demonstrated that her motion for a new trial would not be
successful.
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{¶ 11} The record clearly established that Buell was aware of the information she
claimed was newly-discovered evidence before her trial. Buell claimed in her second motion
for a new trial that the witness who testified that he saw Buell strike the victim was biased
against Buell because Buell is a lesbian and in a relationship with another woman. Buell's
affidavit supporting her second motion for a new trial clearly states that she gave the bias
information to her trial counsel, but that counsel did not use it at trial.
{¶ 12} Additionally, Buell claims that the witness tried to get her partner terminated
from her employment based on his discriminatory views against same-sex couples. This
attempted termination occurred three months before Buell was tried. Thus, Buell cannot
show by clear and convincing evidence that she was prevented from discovering the
evidence before trial.
{¶ 13} Additionally, the witness' alleged bias is not material and does not demonstrate
a strong probability of a different result if a new trial was granted. The witness' account of
what he saw through the window was corroborated by other evidence such as the victim's
distraught behavior after the incident and photographs of redness and marks on the victim's
back the day after the incident. This evidence cannot be vitiated even if the witness was
biased against lesbians.
{¶ 14} After reviewing the record, we find that the trial court did not abuse its
discretion in denying Buell's second motion for a new trial or denying the motion without first
holding a hearing.
{¶ 15} Judgment affirmed.
HENDRICKSON, P.J., and RINGLAND, J., concur.
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