2014 Ohio 1626
Ohio Ct. App.2014Background
- Timothy West convicted after jury trial; prior direct appeal and application for reopening were unsuccessful.
- West filed, on June 6, 2013, a Crim.R. 33(B) motion for leave to file a delayed motion for a new trial based on newly discovered evidence.
- He asserted he recently discovered there was no affidavit supporting the search warrant authorizing a thermal-imaging flyover of his property.
- The trial court denied his motion for leave to file a delayed new-trial motion; West appealed the denial.
- The court noted West had previously challenged the search warrant in earlier proceedings and the appellate record indicated the trial court had reviewed an affidavit underlying the warrant in prior litigation.
- The appellate court assumed, for argument, the affidavit did not exist but held West failed to prove he was unavoidably prevented from discovering that fact within Crim.R. 33’s 120-day rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether West was unavoidably prevented from discovering alleged lack of affidavit supporting thermal-imaging warrant, excusing Crim.R. 33(B) time limit | State: West failed to show by clear and convincing proof that he was unavoidably prevented from timely discovering the absence of an affidavit | West: He only recently discovered the affidavit never existed and thus could not timely file within 120 days | Court: Denied leave — West did not demonstrate unavoidable prevention; he could have sought the affidavit through discovery or during suppression proceedings |
Key Cases Cited
- No key authorities with official reporter citations were relied on in this opinion; the court principally cited prior Ohio appellate slip opinions and Crim.R. 33(B).