State v. Anderson
2014 Ohio 1849
Ohio Ct. App.2014Background
- Kim L. Anderson was convicted after a 2007 jury trial for mortgage-fraud-related offenses involving six properties and over $1 million; he received an aggregate 15-year sentence and his direct appeal was previously affirmed.
- Years after conviction, Anderson pursued civil litigation against several actors involved in the real-estate transactions and obtained civil-discovery materials, including an affidavit from Frank Farkas.
- On March 13, 2013 Anderson filed (1) a motion for leave to file a delayed Crim.R. 33 motion for new trial and (2) a Crim.R. 33(A)(6) motion for new trial based on newly discovered evidence (primarily the Farkas affidavit), asserting he was previously unaware of that evidence.
- The trial court denied leave to file and denied the new-trial motion, finding Anderson failed to show by clear and convincing evidence that he was unavoidably prevented from timely filing and failed to show a strong probability the new evidence would change the verdict.
- The court emphasized Anderson waited 159 days after obtaining the civil materials before seeking leave, and that the Farkas affidavit did not materially differ from known trial testimony or prior motions alleging perjury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant was unavoidably prevented from timely filing a Crim.R. 33 motion based on newly discovered evidence | State: Anderson did not prove by clear and convincing evidence he was unavoidably prevented; his 159-day delay was unreasonable | Anderson: He had no knowledge of the civil evidence until discovery and thus was unavoidably prevented from timely filing | Court: Denied; 159-day delay unreasonable and no clear & convincing proof of unavoidable prevention |
| Whether the newly discovered evidence (Farkas affidavit) shows a strong probability of changing the verdict | State: Affidavit contains no material differences from known testimony and prior filings; not likely to change outcome | Anderson: Farkas lied at trial; affidavit newly proves perjury and prosecutorial misconduct meriting a new trial | Court: Denied; affidavit not materially different and fails Petro test prong of strong probability to change result |
| Whether the trial court abused its discretion by denying an evidentiary hearing on the leave/new-trial motion | State: No abuse — court may refuse hearing where movant fails to show unavoidable delay or a strong probability of changed result | Anderson: Hearing required given alleged perjury, prosecutorial misconduct, and new evidence | Court: No abuse; hearing not warranted because leave to file was not shown |
| Whether ineffective-assistance claim may be considered on this motion/appeal | State: Claims not raised below are waived; ineffective-assistance was not presented in the Crim.R. 33 motion | Anderson: Trial counsel failed to investigate and pursue discovery, warranting relief | Court: Denied/waived; appellate court will not consider issues not raised in trial court |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse-of-discretion standard explained)
- State v. Petro, 148 Ohio St. 505 (Ohio 1947) (six-part test for new trial based on newly discovered evidence)
- Brady v. Maryland, 373 U.S. 83 (U.S. 1963) (prosecutor’s duty to disclose exculpatory evidence)