[Cite as State v. Horton, 2019-Ohio-625.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon.W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
ROBERT D. HORTON, SR. : Case No. CT2018-0066
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CR2015-0184
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 19, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TAYLOR P. BENNINGTON ROBERT D. HORTON SR., PRO SE
27 North Fifth Street #A719-622
P.O. Box 189 Noble Correctional Institution
Zanesville, OH 43702-0189 15708 McConnelsville Road
Caldwell, OH 43724-9678
Muskingum County, Case No. CT2018-0066 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Robert D. Horton, Sr., appeals the October 5, 2018
judgment entry of the Court of Common Pleas of Muskingum County, Ohio, denying his
motion for leave to file a motion for new trial. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On June 3, 2015, the Muskingum County Grand Jury indicted appellant on
two counts of trafficking in cocaine in the first degree in violation of R.C. 2925.03. On
August 18, 2015, appellant pled no contest to one count of trafficking in cocaine in the
first degree and one count of trafficking in cocaine in the third degree. The trial court
found appellant guilty by entry filed the next day. By entry filed October 7, 2015, the trial
court sentenced appellant to an aggregate term of five years in prison.
{¶ 3} Appellant filed an appeal, claiming the state failed to establish that the
weight of actual cocaine met the requisite statutory threshold after excluding the weight
of filler materials used in the mixture. This court affirmed appellant's convictions and
sentence. State v. Horton, Sr., 5th Dist. Muskingum No. CT2015-0053, 2016-Ohio-8193.
{¶ 4} On August 17, 2016, appellant filed a petition to vacate or set aside
judgment of conviction and sentence, claiming ineffective assistance of trial counsel.
Appellant alleged he entered no contest pleas on the advice of counsel, but he should
not have because the detective in the case had broken the chain of custody and tampered
with and substituted the evidence prior to it being submitted for testing. By entry filed
March 16, 2017, the trial court denied the petition. Following a remand by this court for
findings of fact and conclusions of law, the trial court did so on March 27, 2018, finding
appellant did not present any evidence to support his tampering claim. This court affirmed
Muskingum County, Case No. CT2018-0066 3
the trial court's decision. State v. Horton, Sr., 5th Dist. Muskingum No. CT2018-0019,
2018-Ohio-3231.
{¶ 5} On September 20, 2018, appellant filed a motion for leave to file a motion
for new trial. Appellant claimed his convictions pursuant to his no contest pleas were
based on insufficient evidence, and he had newly discovered evidence related to his
allegation of evidence tampering. By entry filed October 5, 2018, the trial court denied
the motion.
{¶ 6} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 7} "THE TRIAL COURT ERRED IN DENYING THE MOTION FOR LEAVE TO
FILE A MOTION FOR NEW TRIAL PURSUANT TO APPLYING THE INCORRECT
STANDARD OF REVIEW."
II
{¶ 8} "IT WAS PREJUDICIAL ERROR TO DENY THE EQUAL OPPORTUNITY
TO PRESENT EVIDENCE UNDERPINNING GROUNDS FOR A NEW TRIAL
PURSUANT [TO] NO CONTEST PLEAS."
I, II
{¶ 9} In his assignments of error, appellant claims the trial court erred in denying
his motion for leave to file a motion for new trial and erred in denying him the opportunity
to present evidence. We disagree.
{¶ 10} In his motion to the trial court for leave to file a motion for new trial, appellant
argued his convictions pursuant to his no contest pleas were based on insufficient
Muskingum County, Case No. CT2018-0066 4
evidence, and he had newly discovered evidence related to his allegation of evidence
tampering which the prosecutor had failed to disclose.
{¶ 11} Crim.R. 33 governs new trial. Subsections (A)(2), (4), and (6) and (B) and
(C) state the following:
(A) Grounds. A new trial may be granted on motion of the defendant
for any of the following causes affecting materially his substantial rights:
(2) Misconduct of the jury, prosecuting attorney, or the witnesses for
the state;
(4) That the verdict is not sustained by sufficient evidence or is
contrary to law. If the evidence shows the defendant is not guilty of the
degree of crime for which he was convicted, but guilty of a lesser degree
thereof, or of a lesser crime included therein, the court may modify the
verdict or finding accordingly, without granting or ordering a new trial, and
shall pass sentence on such verdict or finding as modified;
(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
Muskingum County, Case No. CT2018-0066 5
circumstances of the case. The prosecuting attorney may produce
affidavits or other evidence to impeach the affidavits of such witnesses.
(B) Motion for New Trial; Form, Time. * * * Motions for new trial on
account of newly discovered evidence shall be filed within one hundred
twenty days after the day upon which the verdict was rendered, or the
decision of the court where trial by jury has been waived. If it is made to
appear by clear and convincing proof that the defendant was unavoidably
prevented from the discovery of the evidence upon which he must rely, such
motion shall be filed within seven days from an order of the court finding
that he was unavoidably prevented from discovering the evidence within the
one hundred twenty day period.
(C) Affidavits Required. The causes enumerated in subsection
(A)(2) and (3) must be sustained by affidavit showing their truth, and may
be controverted by affidavit.
{¶ 12} The trial court found appellant guilty on August 19, 2015. Because
appellant was well outside the one hundred twenty day period, he filed a motion for leave
to file a motion for new trial on September 20, 2018. To obtain such leave, appellant was
required to show by clear and convincing proof that he was unavoidably prevented from
discovering the evidence within the one hundred twenty days. State v. Lordi, 149 Ohio
App.3d 627, 2002-Ohio-5517, 778 N.E.2d 605. "[A] party is unavoidably prevented from
filing a motion for new trial if the party had no knowledge of the existence of the ground
supporting the motion for a new trial and could not have learned of the existence of that
Muskingum County, Case No. CT2018-0066 6
ground within the time prescribed for filing the motion for new trial in the exercise of
reasonable diligence." State v. Walden, 19 Ohio App.3d 141, 483 N.E.2d 859 (1984).
Clear and convincing proof is that proof "which will provide in the mind of the trier of facts
a firm belief or conviction as to the facts sought to be established." Cross v. Ledford, 161
Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 13} In its October 5, 2018 entry denying appellant's motion, the trial court stated
the following:
First, the Court finds that the Defendant has failed to file an affidavit
as required. Further, the Court finds that it is untimely and the Defendant
has failed to provide how he was unavoidably prevented from discovering
the alleged new evidence. Moreover, the Defendant has failed to provide
any such new evidence to support his claim. Additionally, the issue of
insufficient evidence has previously been addressed and was found to be
erroneous.
{¶ 14} Based upon the foregoing, we do not find error in the trial court's decision.
{¶ 15} In his motion for leave to file a motion for new trial, appellant argued
insufficient evidence to convict him. Appellant pled no contest. During the plea hearing,
the prosecutor stated "the parties stipulate to the facts sufficient for a finding of guilty on
the charges, and submit a stipulated exhibit concerning the scientific testing of the
evidence in this case." August 18, 2015 T. at 4. Defense counsel acknowledged "[t]he
Muskingum County, Case No. CT2018-0066 7
statements made by the prosecutor are correct." Id. Appellant did not produce any proof
to substantiate this claim.
{¶ 16} Also in his motion, appellant argued newly discovered evidence. Appellant
stated he was not aware of the detective's "questionable conduct" (tampering with the
evidence) until receiving reports from his counsel prior to sentencing, but after pleading
no contest. The report in question was the BCI lab report. Appellant argued he "was
unavoidably prevented from discovering its exculpatory value due to the State of Ohio not
disclosing such in his case." The report was attached to appellant's plea form as State's
Exhibit 1. During the plea hearing, the prosecutor referred to the report attached to the
plea form. August 18, 2015 T. at 4, 11. Clearly, appellant had knowledge of the evidence
prior to the expiration of one hundred twenty days. The evidence in question was not
"newly discovered."
{¶ 17} Because appellant made allegations of prosecutorial misconduct regarding
the missing report, he was required to file an affidavit pursuant to Crim.R. 33(C) which
the trial court correctly found he failed to do. Appellant did not submit any attachments
to his motion.
{¶ 18} Upon review, we find the trial court did not err in denying appellant's motion
for leave to file a motion for new trial.
Muskingum County, Case No. CT2018-0066 8
{¶ 19} The judgment of the Court of Common Pleas of Muskingum County, Ohio
is hereby affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Delaney, J. concur.
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