[Cite as State v. Smith, 2016-Ohio-7904.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 27015
Plaintiff-Appellee :
: Trial Court Case No. 2004-CR-3554
v. :
: (Criminal Appeal from
RONALD A. SMITH : Common Pleas Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 23rd day of November, 2016.
...........
MATHIAS H. HECK, JR., by MEAGAN D. WOODALL, Atty. Reg. No. 0093466,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
RONALD SMITH, No. 516-443, Trumbull Correctional Institution, Post Office Box 901,
Leavittsburg, Ohio 44430
Defendant-Appellant, pro se
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HALL, J.
{¶ 1} Ronald Smith appeals pro se from a final judgment denying his motion for a
new trial and his motion for leave to file a motion for a new trial, based on a claim of newly
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discovered evidence.
I. Background
{¶ 2} In 2005, Smith was found guilty of aggravated burglary and aggravated
robbery. The trial court sentenced him to consecutive ten-year prison terms, for a total
sentence of twenty years. We affirmed Smith’s convictions on direct appeal, in State v.
Smith, 2d Dist. Montgomery Nos. 21463, 22334, 2008-Ohio-6330. In our opinion, we set
forth the facts of this case as follows:
During the evening hours of September 27, 2004, two African–
American males, one identifying himself as “Little Ronnie,” kicked in the
front door of Latisha Robinson’s apartment and entered. The man
identifying himself as Little Ronnie, was armed with a gun. He got in her
face and demanded to know where her boyfriend, Corey Pullings, was. The
other man went to her back door and opened it, allowing three additional
men to enter the apartment.
When Robinson denied any knowledge of Pullings, Little Ronnie
went upstairs in the apartment, tearing the handrail off the wall, and he went
into Robinson’s bedroom putting the gun to her son’s head. He then
demanded Robinson give him something to get him to leave. Robinson
gave one of the men sixty dollars and her cell phone.
Meanwhile, the four men downstairs ransacked Robinson’s
apartment, toppling furniture and rummaging through boxes, throwing
things to the floor. The men took additional items from the apartment,
including radios and CD’s. During the ransacking of the apartment, the
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gunman, who repeatedly identified himself as “Little Ronnie,” and Robinson
were engaged in a confrontation in the dining room where he attempted to
force Robinson to lay on the floor “like execution style.” Finally, after the
other men exited the apartment, “Little Ronnie” ran out, too.
Robinson then escaped to a neighbor’s apartment, where the police
were called. The next day, Detective Ward, of the Montgomery County
Sheriff’s Office prepared a photo spread containing a picture of Ronald
Smith, the only individual the detective knew that called himself “Little
Ronnie.” Robinson could not identify anyone in the photo spread.
Subsequently, when Robinson was viewing serial photos on the detective’s
computer screen, a photo of Smith came up, showing his gold teeth that
were not displayed in the prior photo. Robinson indicated that this picture of
Smith “could possibly be the person who was in her house.”
Subsequently, a neighbor, who had opened his door while Smith and
the others were knocking at Robinson’s door, immediately picked out Smith
from a photo spread as the man at her door, and who had identified himself
as Little Ronnie.
Smith was arrested. After being Mirandized, Smith admitted that he
and four others went to Robinson's apartment looking for Corey Pullings,
but claimed that he left after being told that he was not there. He claimed
that one of the other men kicked in the door and entered, but denied that he
ever entered the apartment. Prior to trial, Smith made a number of phone
calls attempting to get Robinson to take a payoff to drop the charges, and
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attempting to set up an excuse for why he was in the area.
Smith at ¶ 3-8.
{¶ 3} The motions that are the subject of this appeal are by our count Smith’s
thirteenth and fourteenth separate motions for a new trial, or for leave to file such a
motion, since his conviction in 2005. Smith filed his “Motion for New – Trial Pursuant to
Newly Discovered Evidence Crim R. 33” on October 29, 2015. This motion was supported
by an affidavit of Nancy C. Duke to the effect that she observed Smith driving away from
the apartment complex where the offenses occurred for which he is in prison, and she
then saw another person kick in the door to an apartment. Smith also filed his “Motion for
A Order Granting Leave to file A Motion for New – Trial Crim. R. 33(B)” on October 30,
2015, supported by essentially the same evidence.
{¶ 4} With regard to the October 29th new trial motion, the trial court overruled that
motion, by a decision and order filed February 3, 2016, for the reason that Smith did not
follow Crim. R. 33(B) by requesting leave of court to file the motion for a new trial before
the actual motion was filed. Indeed, if a defendant intends to file a motion for a new trial
based on newly discovered evidence after more than 120 days, the defendant must first
seek leave of court before the new trial motion itself can be filed. He “must first file a
motion for leave, showing by ‘clear and convincing proof that he has been unavoidably
prevented from filing a motion in a timely fashion.’ ” State v. Parker, 178 Ohio App.3d 574,
2008–Ohio–5178, 899 N.E.2d 183, ¶ 15 (2d Dist.), quoting State v. Morgan, 3d Dist.
Shelby No. 17–05–26, 2006–Ohio–145, ¶ 7. The trial court was correct to overrule the
new trial motion itself which was filed without first obtaining leave.
{¶ 5} With regard to Smith’s October 30th motion for leave to file his new trial
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motion, the trial court overruled that motion in a detailed decision and order filed
February 2, 2016.
{¶ 6} Attached to the motion for leave is Smith’s own affidavit, an affidavit from a
woman named Nancy Duke, and a letter dated September 18, 2015, that Duke sent
Smith. Duke states in her affidavit that she saw Smith drive away from the apartment
building before the crime occurred. And she states that she saw a man named LaQwan
Scandrick kick in the door and enter the apartment. Duke states that Scandrick is also
known as “Little Ronnie” and also has gold teeth and braids. In her letter, Duke tells Smith
what she saw. She says that, at the time, she was afraid to come forward. But she says
that she looked up Scandrick recently and discovered that he is serving a life sentence
for murder, so she no longer has any reason to fear him. Smith states in his affidavit that
he did not know until he received Duke’s letter that she was at the scene and saw what
she claims to have seen.
{¶ 7} The trial court overruled without a hearing the motion for leave to file a new-
trial motion and the motion for a new trial itself. The trial court concluded that Smith was
not unavoidably prevented from discovering the facts alleged in Duke’s affidavit. In
addition, it concluded that Smith failed to show that Duke’s affidavit creates a strong
probability that he would be acquitted in a new trial.
{¶ 8} Smith appealed.
II. Analysis
{¶ 9} Smith assigns two errors to the trial court. The first alleges that the court
abused its discretion by overruling his motion for leave to file the new-trial motion. And
the second alleges that the court abused its discretion by overruling the motion for a new
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trial. We have already determined, at ¶ 4, supra, that the trial court correctly overruled the
motion for a new trial because it was filed without leave of court. We focus the remainder
of our analysis on whether the trial court correctly overruled the request for leave to file
the new trial motion.
The decision whether to grant a motion for a new trial lies within the
sound discretion of the trial court and will not be disturbed on appeal absent
an abuse of that discretion. State v. Schiebel (1990), 55 Ohio St.3d 71, 564
N.E.2d 54.
“Abuse of discretion” has been defined as an attitude that is
unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc.
(1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. It
is to be expected that most instances of abuse of discretion will result in
decisions that are simply unreasonable, rather than decisions that are
unconscionable or arbitrary.
***
Pursuant to Crim.R. 33(A)(6), a new trial may be granted when new
evidence material to the defense is discovered that the defendant could not
with reasonable diligence have discovered and produced at trial. To prevail
on a motion for new trial based upon newly discovered evidence, Defendant
must show that the new evidence: (1) discloses a strong probability that the
result of the trial would be different if a new trial were granted; (2) has been
discovered since the trial; (3) is such as could not have been discovered
before the trial through the exercise of due diligence; (4) is material to the
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issues; (5) is not merely cumulative to former evidence; and (6) does not
merely impeach or contradict the former evidence. State v. Petro (1947),
148 Ohio St. 505, 76 N.E.2d 370.
Motions for a new trial based upon newly discovered evidence must
be filed within one hundred twenty days after the verdict was rendered
unless it appears by clear and convincing proof that Defendant was
unavoidably prevented from discovering the new evidence, in which case
the motion for new trial must be filed within seven days from the order of the
court finding that Defendant was unavoidably prevented from discovering
the new evidence within the one hundred twenty day period. Crim.R. 33(B).
State v. DeVaughns, 2d Dist. Montgomery No. 23720, 2011-Ohio-125, ¶ 16-20.
{¶ 10} The guilty verdicts in this case were returned by the jury in September 2005.
Smith filed his motions in October 2015, over ten years later. Being obviously untimely,
he was required to demonstrate by clear and convincing proof that he was unavoidably
prevented from discovering the new evidence within 120 days after the guilty verdicts
were rendered. The trial court concluded that Smith failed to do that. The court found that
Duke is “not a disinterested or impartial witness,” noting that in the letter she tells Smith,
“I want you to know I miss you and I have love for you.” The court found persuasive the
State’s argument that Duke had almost 9 years to check Scandrick’s status and come
forward. And when she did come forward, instead of going to the police, Duke mailed a
letter with her affidavit to Smith. Smith’s and Duke’s affidavits, said the court, must be
viewed in the context of Smith’s “repeated efforts to obstruct justice in this case, both
before and after the trial, including the prior filing of a false affidavit.” And the court said
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that the affidavits must be weighed against the testimony and evidence presented at trial.
{¶ 11} Smith’s twelfth motion for a new trial was also purportedly based on newly
discovered evidence and the evidence then was the testimony of one Theron Lewis who
claimed to have witnessed the crime. Lewis was a fellow prison inmate who stated in his
affidavit that he was present when this crime occurred and that he too saw Scandrick kick
open the door to the apartment and go inside. In his own affidavit, Smith claimed that he
was unavoidably prevented from discovering this new evidence because he did not know
the affiant until they met in prison. The trial court summarily overruled this motion too,
finding that Smith failed to demonstrate that he was unavoidably prevented from
discovering the new evidence. The court then also found that Smith’s affidavit was not
credible. This finding was based in part on the timing of his affidavit, signed just 22 days
after the Ohio Supreme Court had affirmed his conviction. The trial court said that Smith’s
discovery of a new exculpatory witness just a short time after his conviction was upheld
was “an incredible coincidence.” The court also based its credibility finding on Smith’s
repeated attempts to obstruct justice in this case, both before and after the trial, and his
filing of a false affidavit from another witness in support of a previous motion for a new
trial. We found no abuse of discretion in the trial court’s denial of Smith’s twelfth motion
for a new trial on the basis of the incredibility of Smith’s affidavit. State v. Smith, 2d Dist.
Montgomery No. 23945, 2011-Ohio-2189, ¶ 21. In addition, we said that even if Smith
had demonstrated that he was unavoidably prevented from discovering the facts alleged
in the witness’s affidavit, in light of the evidence that was presented at the trial, Smith
failed to demonstrate a strong probability that this new evidence would change the result
of the trial. Id. at ¶ 22-26.
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{¶ 12} We can’t help but notice, as did the trial court, that not only are the
circumstances of how Smith submitted Nancy Duke’s gratuitous “Affitdavit [sic]”
suspicious, the contents of the document itself and her letter to Smith, which was also
attached to Smith’s motion for leave, are suspicious on their face. Duke’s letter indicates
she is submitting the unsolicited “affitdavit [sic]” “to clear my conscious [sic].” (Emphasis
added.) This is eerily similar to LaQwan Scandrick’s 2009 “Sworn Affitdavit [sic]” which
was filed in support of a previous motion and which was also attached to Smith’s
October, 29, 2015 new trial motion. Scandrick had also said he was gratuitously coming
forward because “it would be on my conscious [sic].” Furthermore, Duke’s rendition of
events at the subject apartment is contrary to that in Scandrick’s sworn statement, and,
more importantly, contrary to Smith’s own statement to detectives. Duke’s letter states
that she saw Smith driving away from the apartments “with some b**** in the car” and her
affidavit says, after he was seen driving away, she then saw Scandrick kick in the door to
the apartment. But Smith’s own version of events, which we repeated in ¶2 above from
our opinion in his direct appeal, is that Smith was at the apartment door when one of the
other men he was with kicked in the door, but he, Smith, did not go in. And, Scandrick’s
affidavit says that while he and his accomplices were at the apartment “some other dude
walked up to the door next to us he had braids and gold teeth,” presumably describing
Ronald Smith. Duke’s statement that she saw Smith leave and then Scandrick arrive and
kick in the door is therefore inconsistent with both Smith’s and Scandrick’s rendition of
events.
{¶ 13} After review of all the facts and circumstances we find no abuse of discretion
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in the trial court’s denial of Smith’s motion for leave to file a motion for a new trial, for the
reasons given by the court. And for the same reasons as those we gave in our review of
his twelfth new-trial motion, even if Smith had demonstrated that he was unavoidably
prevented from discovering the facts alleged in Duke’s affidavit, he fails to show a strong
probability that this new evidence would change the result of the trial. The trial court did
not err by overruling Smith’s motion for leave to file a motion for a new trial or by overruling
his motion for a new trial.
{¶ 14} Both assignments of error are overruled.
III. Conclusion
{¶ 15} The trial court’s judgment is affirmed.
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DONOVAN, P.J., and WELBAUM, J., concur.
Copies mailed to:
Mathias H. Heck
Meagan D. Woodall
Ronald A. Smith
Hon. Gregory F. Singer