State v. Westerfield
2016 Ohio 4633
Ohio Ct. App.2016Background
- Eric R. Westerfield was convicted by jury in 2007 of rape of a child under ten, sentenced to life and classified a sexual predator.
- Westerfield filed prior appeals; convictions and classification were affirmed in earlier appeals (Westerfield I and II).
- On November 12, 2015 (more than eight years after the 2007 verdict), Westerfield moved for a new trial under Crim.R. 33, asserting newly discovered juvenile records of the alleged victim and alleging withheld exculpatory evidence and ineffective assistance of counsel.
- The State moved contra, arguing the motion was untimely and filed without leave of court as required by Crim.R. 33(B).
- The trial court denied the November 12, 2015 motion; Westerfield appealed the denial.
- The Tenth District affirmed, holding Westerfield failed to show he was unavoidably prevented from discovering the alleged new evidence and forfeited some arguments by not raising them below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of new-trial motion (Crim.R. 33(B)) | Motion is untimely (filed >120 days after verdict) and Westerfield did not seek leave or show unavoidable prevention | Juvenile records are newly discovered; motion filed after discovery merits new trial | Affirmed denial: Westerfield did not seek leave or prove by clear and convincing evidence he was unavoidably prevented from discovering the evidence within 120 days |
| Brady/withheld evidence & ineffective assistance of counsel | Issues were not preserved in the trial-court motion and thus forfeited on appeal | State withheld exculpatory juvenile records; counsel was ineffective for failing to use them | Affirmed denial: arguments forfeited for failure to present to trial court; court reviewed timeliness and found no basis to grant new trial |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (defines abuse-of-discretion standard)
- Cross v. Ledford, 161 Ohio St. 469 (1954) (defines clear-and-convincing-evidence standard)
- State v. Petro, 148 Ohio St. 505 (1947) (factors for newly discovered evidence warranting new trial)
- State v. Mathis, 134 Ohio App.3d 77 (1st Dist. 1999) (clear-and-convincing proof requirement for unavoidable prevention of discovery)