2013 Ohio 1822
Ohio Ct. App.2013Background
- Portis was convicted by jury of Complicity in the Robbery and sentenced to eight years plus a consecutive one-year post-release control term.
- The state appellate opinion affirmed Portis’s prior conviction in a 2009 decision.
- In August 2012 Portis moved for leave to file a delayed motion for a new trial based on newly discovered evidence.
- The proposed new evidence concerned two women, Buck and Schoneberger, who were named in a police report but did not testify at trial.
- Portis claimed Buck and Schoneberger were interviewed and possibly videotaped, and that their interviews could exculpate him or undermine key trial facts.
- The trial court denied Portis’s motion for leave to file a delayed motion for new trial, and Portis appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in denying leave to file a delayed motion for new trial | Portis: unavoidably prevented from discovering witnesses; lack of disclosure of taped interviews | State: evidence was discoverable; identities were disclosed in discovery packet | No abuse of discretion; not unavoidably prevented; evidence could have been discovered earlier |
Key Cases Cited
- State v. Parker, 178 Ohio App.3d 574 (2d Dist. 2008) (established unavoidably prevented discovery standard for Crim.R. 33(B))
- State v. Morgan, 2006-Ohio-145 ((S.D. 2006)) (clear and convincing proof required for untimely filings (contextual))
- State v. Walden, 19 Ohio App.3d 141 (1984) (unavoidably prevented standard from discovery of evidence)
- Schiebel v. State, 55 Ohio St.3d 71 (1990) (definition of clear and convincing evidence; review of factual sufficiency)
- Cross v. Ledford, 161 Ohio St. 469 (1954) (standard for clear and convincing proof)