State v. Covender
2012 Ohio 6105
Ohio Ct. App.2012Background
- Covender was convicted in 1996 of gross sexual imposition and felonious sexual penetration involving his stepchildren.
- He obtained a partial reversal on a prior motion for a new trial but later lost on other related post‑trial motions.
- In 2007 he sought leave to file a second motion for a new trial based on a witness recantation and new affidavits.
- In 2011 he moved for a third time for leave to file a delayed motion for a new trial based on therapy records of A.S.
- The trial court denied leave, and the Ninth District reversed, holding he was unavoidably prevented from discovering the records within the 120‑day window.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Covender was unavoidably prevented from discovering the records | Covender showed unavoidably prevented progress due to medical issues and delays in locating records. | State argued knowledge of existence of records pre-trial foreclosed unavoidably prevented claim. | Yes; the court held Covender proved unavoidable prevention under Crim.R. 33(B). |
| Whether pre-trial knowledge of records foreclosed timely discovery | Knowledge of records existed does not defeat unavoidably prevented finding. | Pre-trial awareness should have prompted earlier diligence. | No; knowledge of existence did not negate unavoidably prevented under the circumstances. |
| Proper application of the reasonable-diligence standard after the 120‑day window | Applicant diligently pursued records after release. | Delay after 120 days should be excused only if unavoidably prevented. | Unavoidable delay found; post‑120‑day diligence considered but not dispositive. |
Key Cases Cited
- State v. Davis, 131 Ohio St. 3d 1 (2011-Ohio-5028) (safety net for posttrial challenges; new-evidence motions)
- State v. Anderson, 2012-Ohio-4733 (10th Dist. No. 12AP-133 (2012)) (defendant not unavoidably prevented by later discovery when diligence was lacking)
- State v. Rodriguez-Baron, 2012-Ohio-5360 (7th Dist. No. 12-MA-44) (unavoidable delay standard; reasonable diligence not required to re‑investigate prior dead ends)
- State v. Covender, 2008-Ohio-1453 (9th Dist. No. 07CA009228) (law of the case on personal knowledge; evidence not previously before the court)
- State v. Holmes, 2006-Ohio-1310 (9th Dist. No. 05CA008711) (clear and convincing burden for unavoidably prevented discovery)