[Cite as State v. Videen, 2017-Ohio-8608.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27479
:
v. : Trial Court Case No. 2011-CR-3378
:
LANCE VIDEEN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 17th day of November, 2017.
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MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
LANCE VIDEEN, 4831 Northcliff Drive, Apartment 6, Dayton, Ohio 45431
Defendant-Appellant
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WELBAUM, J.
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{¶ 1} Defendant-appellant, Lance Videen, appeals from the judgment of the
Montgomery County Court of Common Pleas overruling his Crim.R. 33 motion for new
trial without a hearing. For the reasons outlined below, the judgment of the trial court will
be affirmed.
Facts and Course of Proceedings
{¶ 2} On December 7, 2011, Videen was indicted on two counts of illegal use of a
minor in nudity-oriented material or performance in violation of R.C. 2907.323(A)(3). The
charges arose after Sergeant Harold Jones of the Riverside Police Department
discovered images on Videen’s laptop computer depicting naked, prepubescent boys.
{¶ 3} After pleading not guilty to the charges, on February 12, 2012, Videen filed a
motion to suppress the images discovered on his computer and the statements he made
to Sergeant Jones during a video-recorded interview at the police station. Following a
hearing on the matter, the trial court overruled Videen’s motion to suppress. The trial
court declined to suppress Videen’s statements because it found that Videen had been
properly advised of his Miranda rights and that he knowingly and voluntarily waived them.
The trial court declined to suppress the incriminating images discovered on Videen’s
computer because the court found that Videen had voluntarily consented to the search
that yielded the images.
{¶ 4} On April 12, 2012, the case proceeded to a bench trial. At trial, the State
presented the testimony of Sergeant Jones and Jones’s recorded interview with Videen.
Videen did not testify or present any evidence in his defense. Although Videen was
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represented by counsel at the suppression hearing, he elected to represent himself at
trial with standby counsel present to assist him. With the assistance of standby counsel,
Videen moved for a judgment of acquittal under Crim.R. 29, which the trial court denied.
Thereafter, on April 18, 2012, the trial court returned a guilty decision on both illegal-use
counts. Following a presentence investigation, the trial court sentenced Videen to
community control sanctions not to exceed five years and designated him a Tier I sex
offender.
{¶ 5} Videen filed an appeal from his conviction and sentence, which we decided
on April 5, 2013. See State v. Videen, 2013-Ohio-1364, 990 N.E.2d 173 (2d Dist.). In
that appeal, we held the trial court correctly concluded that Videen voluntarily consented
to the search of his computer. Id. at ¶ 19-26. However, we reversed and vacated his
conviction for one of the illegal-use counts on grounds that the nude image on which that
count was based did not amount to a “lewd exhibition” as is required for convictions under
R.C. 2907.323(A)(3). Id. at ¶ 28-36. The judgment of the trial court was otherwise
affirmed and the matter was remanded for resentencing. Id. at ¶ 50. At resentencing,
Videen was again sentenced to community control sanctions not to exceed five years and
designated a Tier I sex offender.
{¶ 6} Three and half years later, on October 25, 2016, Videen filed a “Motion for
Order Vacating Prior Conviction Alternatively, Motion for New Trial.” The trial court
reviewed the motion as a Crim.R. 33 motion for new trial given that the court found no
procedural mechanism permitting the requested vacation of Videen’s conviction. Based
on that review, the trial court overruled Videen’s motion by a written decision filed on
January 31, 2017.
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{¶ 7} On February 23, 2017, Videen filed a notice of appeal from the trial court’s
decision overruling his motion for new trial. Following the submission of his appellant
brief, Videen filed a motion with this court requesting oral argument. We granted
Videen’s motion and scheduled oral argument for October 24, 2017. At oral argument,
Videen, having discharged his retained appellate counsel, represented himself pro se.
During his pro se oral argument, Videen referred to matters and alleged facts that are
outside the record of this case. Because an appellate court may only consider matters
contained in the record, we are not permitted to consider the matters and facts raised by
Videen during his oral argument. See State v. Simpson, 2d Dist. Montgomery No.
25202, 2013-Ohio-1695, ¶ 19 (“ ‘[T]his court is unable to consider any evidence not
considered by the trial court.’ It is axiomatic that an appellate court will not consider
matters outside of the appellate record.”), quoting Dayton v. Turic, 2d Dist. Montgomery
No. 20149, 2005-Ohio-131, ¶ 8, quoting Alex-Bell Oxford Limited Partnership v. Woods,
2d Dist. Montgomery No. 16038, 1998 WL 289028, * 4 (June 5, 1998). (Other citation
omitted.) Moreover, this appeal is restricted to the procedural issues raised by the
parties in their respective appellate briefs.
Assignment of Error
{¶ 8} In support of his appeal, Videen raised a single assignment of error for this
court’s review. Under his assignment of error, Videen contends that the trial court’s
decision overruling his “Motion for Order Vacating Prior Conviction Alternatively, Motion
for New Trial” without a hearing constitutes an abuse of discretion. We disagree.
{¶ 9} As a preliminary matter, we note that Videen does not claim the trial court
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erred in reviewing his motion solely as a Crim.R. 33 motion for new trial. Such a review
was appropriate since Videen’s motion does not provide any authority for vacating his
conviction and only cites Crim.R. 33(A)(6) and R.C. 2945.79(F) as grounds for receiving
a new trial.
{¶ 10} R.C. 2945.79(F) provides that:
A new trial, after a verdict of conviction, may be granted on the application
of the defendant for any of the following causes affecting materially his
substantial rights:
***
(F) When new evidence is discovered material to the defendant, which he
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 of said
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 under all the circumstances of the case is
reasonable. The prosecuting attorney may produce affidavits or other
evidence to impeach the affidavits of such witnesses.
{¶ 11} Similarly, Crim.R. 33(A)(6) provides that:
A new trial may be granted on motion of the defendant for any of the
following causes affecting materially his substantial rights:
***
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(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
circumstances of the case. The prosecuting attorney may produce affidavits
or other evidence to impeach the affidavits of such witnesses.
{¶ 12} Pursuant to Crim.R. 33(B), motions for new trial based on newly discovered
evidence “shall be filed within 120 days after the day upon which the verdict was rendered,
or the decision of the court where trial by jury has been waived.” Similarly, motions
based on other sections of the rule, i.e., Crim.R. 33(A)(1) through (5), must be filed within
14 days after the verdict or trial court’s decision was rendered. Crim.R. 33(B).
{¶ 13} In order to file a motion for new trial after the expiration of the time periods
specified in Crim.R. 33(B), a defendant must first seek leave of the trial court to file a
delayed motion. State v. Lanier, 2d Dist. Clark No. 2009 CA 84, 2010-Ohio-2921, ¶ 15,
citing State v. Warwick, 2d Dist. Champaign No. 01CA33, 2002 WL 1585663, *2 (July 19,
2002); State v. Parker, 178 Ohio App.3d 574, 2008-Ohio-5178, 899 N.E.2d 183, ¶ 16
(2d Dist.). “To obtain leave, defendant must demonstrate by clear and convincing
evidence that he or she was unavoidably prevented from timely filing the motion for a new
trial or discovering the new evidence within the time period provided by Crim.R. 33(B).”
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(Citations omitted.) Warwick at *2. “A defendant is entitled to a hearing on a motion for
leave to seek a new trial if he submits documents that on their face support his claim of
being unavoidably prevented from meeting Crim.R. 33’s time requirement.” State v.
Hiler, 2d Dist. Montgomery No. 27364, 2017-Ohio-7636, ¶ 12, citing Lanier, at ¶ 16.
{¶ 14} “ ‘[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 new trial
and could not have learned of the existence of that ground within the time prescribed for
filing the motion for new trial in the exercise of reasonable diligence.’ ” Parker at ¶ 16,
quoting State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984).
“[A] defendant fails to demonstrate that he or she was unavoidably prevented from
discovering new evidence when he would have discovered that information earlier had
he or she exercised due diligence and some effort.” State v. Lenoir, 2d Dist. Montgomery
No. 26846, 2016-Ohio-4981, ¶ 24, citing State v. Metcalf, 2d Dist. Montgomery No. 26101,
2015-Ohio-3507, ¶ 11, citing Warwick.
{¶ 15} “A trial court’s decision on a Crim.R. 33 motion for a new trial will not be
reversed absent an abuse of discretion.” State v. Gillispie, 2d Dist. Montgomery No.
24456, 2012-Ohio-1656, ¶ 31, citing State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54
(1990), paragraph one of the syllabus; State v. Matthews, 81 Ohio St.3d 375, 378, 691
N.E.2d 1041 (1998). “ ‘Abuse of discretion’ has been defined as an attitude that is
unreasonable, arbitrary or unconscionable.” (Citation omitted.) AAAA Enterprises, Inc.
v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553
N.E.2d 597 (1990).
{¶ 16} In overruling Videen’s motion for new trial, the trial court found that Videen’s
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motion was filed beyond the 120-day time limitation that applies to motions based on
newly discovered evidence under Crim.R. 33(A)(6). To the extent that Videen’s motion
may have implicated sections (1) through (5) of Crim.R. 33(A), the trial court also held
that the motion was filed beyond the 14-day time limitation applicable to those sections.
In addition, the trial court found that Videen failed to provide clear and convincing proof
that he was unavoidably prevented from timely filing his motion and from discovering the
alleged new evidence on which his motion is based.
{¶ 17} Having reviewed the record, we find no abuse of discretion in the trial court’s
decision. The record indicates that Videen filed his motion for new trial on October 25,
2016, four and a half years after the trial court issued its guilty decision on April 18, 2012.
Accordingly, it is clear that Videen filed his motion well beyond the time limitations
provided for in Crim.R. 33(B). Despite his untimeliness, Videen never filed a motion for
leave to file out of time and never provided the trial court with a reason, let alone clear
and convincing proof that he had been unavoidably prevented from filing his motion in a
timely fashion. Accordingly, a hearing on the untimely motion was not required.
{¶ 18} In addition to its untimeliness, Videen’s motion for new trial is not based on
any newly discovered evidence. In the motion, Videen argued that there may be a video
or audio recording of police officers questioning him in the back of a cruiser, and that he
never received a copy of the purported recording for trial. However, because Videen
admitted that the existence of any such recording is unknown, it cannot be said that he
discovered any new evidence for trial. Moreover, if any such recording did exist, there
was nothing preventing Videen from attempting to locate it prior to trial or within 120 days
of being found guilty.
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{¶ 19} Videen raised several other issues in his motion for new trial that the trial
court found irrelevant to the pertinent decisions it made, those decisions being that the
search of Videen’s computer was constitutional and that his possession of the images in
question violated R.C. 2907.323(A)(3). After thoroughly reviewing the issues raised by
Videen, we again find no abuse of discretion in the trial court’s finding. The various
issues in Videen’s motion are indeed irrelevant and are of such a nature that Videen
would have been aware of them prior to or during his trial. As a result, Videen cannot
establish that he was unavoidably prevented from discovering the issues for purposes of
filing his untimely motion for new trial.
{¶ 20} We further find that the issues raised by Videen are barred by res judicata,
as he could have raised them in his prior direct appeal. See State v. Russell, 10th Dist.
Franklin No. 04AP-1149, 2005-Ohio-4063, ¶ 6-7 (affirming denial of appellant’s motion
for new trial, without a hearing, based on res judicata); State v. Butler, 2d Dist. Clark No.
2717, 1991 WL 116659, *1 (June 26, 1991) (finding res judicata barred appellant from
raising issues in his motion for new trial that could have been raised in his direct appeal).
{¶ 21} Given that we find no abuse of discretion in the trial court’s decision
overruling Videen’s motion for new trial, Videen’s sole assignment of error is overruled.
Conclusion
{¶ 22} Having overruled Videen’s sole assignment of error, the judgment of the
trial court is affirmed.
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DONOVAN, J. and FROELICH, J., concur.
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Copies mailed to:
Mathias H. Heck, Jr.
Sarah E. Hutnik
Lance Videen
Hon. Erik Blaine
Charles W. Slicer, III
State v. Videen
Combined Opinion