STATE OF OHIO, Plaintiff - Appellee v. DANIEL L. BARNES III, Defendant - Appellant
Case No. CT2017-0092
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
April 20, 2018
[Cite as State v. Barnes, 2018-Ohio-1585.]
Hon. W. Scott Gwin, P.J.; Hon. Craig R. Baldwin, J.; Hon. Earle E. Wise, J.
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2013-0199; JUDGMENT: Affirmed
For Plaintiff-Appellee
D. MICHAEL HADDOX Prosecuting Attorney
By: GERALD V. ANDERSON II Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth St., P.O. Box 189 Zanesville, Ohio 43702-0189
For Defendant-Appellant
DANIEL BARNES, III, pro se #A688-102 Ross Correctional Institutution P.O. Box 7010 Chillicothe, Ohio 45602
{¶1} Appellant, Daniel Barnes, III, appeals the denial of his motion for leave to file a motion for a new trial, as well as his motion for a new trial, journalized by the Muskingum County Court of Common Pleas on November 1, 2017. Appellee is the State of Ohio.
STATEMENT OF FACTS AND THE CASE
{¶2} On July 8, 2013, James Martin visited the Cozy Corner Bar with his friend, James Ricket, also known as “Hub.” While at the bar, Martin saw appellant, Daniel Barnes III, and Eric Thornton, also known as “Louie” and “Fats” respectively. Appellant and Thornton asked Martin for a ride from the bar.
{¶3} Upon arriving at a neighborhood in Zanesville, Martin testified appellant asked him to drive around the city block one time. Martin stated he drove around the block and returned to the same spot. Upon parking, Martin felt his seat belt tighten and something, he believed to be a gun, at the back of his head. He testified he then saw appellant leaning up with his arm and putting a gun to the back of Ricket‘s head, telling him to “just chill.” He noted the gun was black, and had a beam on it.
{¶4} Martin testified he threw his hands in the air, and told appellant and Thornton they could have everything. He stated he emptied his pockets on the armrest in the middle of the car. Appellant and Thornton took everything, including cash. Appellant told Martin to pop the trunk of the car and to get inside of the trunk. Martin testified he observed the trunk of the car had an emergency release, and after being ordered into the trunk at gun point, he waited until the car turned into the alley and then activated the emergency release.
{¶5} Martin escaped and took off running along Cliffwood Avenue. He ran onto a porch, banging on the door. Appellant caught up with him, and pointed the gun at Martin. A struggle ensued over the gun. Appellant engaged in a fight with Martin, inserting his fingers into Martin‘s eyeball socket and biting Martin.
{¶6} Appellant testified at trial on his own behalf. He maintains Martin drove to a neighborhood in Zanesville to drop off crack [cocaine] he sells. Appellant testified Martin went into the house and appellant waited outside smoking a cigarette with the car door kicked open. When Martin returned to the car, all three occupants were laughing. Appellant told Martin they were laughing at him and he became angry and argued with appellant. Appellant‘s car door was wedged on a tree stump and when Martin put the car in reverse, the door was damaged. Martin then got out of the car, upset about the door. Ricket and Thornton also exited the vehicle during the incident. Ricket stepped on the side panel and leaned onto the hood of the car, watching appellant and Martin.
{¶7} Appellant maintains a fight ensued, during which Martin‘s glasses were knocked off into the street. The fight lead to a chase ending on the front porch of Roberta Jones’ residence. Appellant maintains he told Jones to call the police, using her name, as he was familiar with her from the past.
{¶8} Both appellant and Martin testified a shot was fired on the porch of Roberta Jones. Appellant then hit Martin with the gun several times. Martin then ran from the porch to the police cruiser of Patrolman Chris Andrews. Patrolman Andrews testified at trial as to the incident, and the relation of the events as told to him by Martin in his cruiser.
{¶9} Patrolman Groves of the Zanesville Police Department testified he was responding to a request for assistance to apprehend a suspect with a handgun on June
{¶10} Appellant was indicted on two counts of kidnapping, in violation of
{¶11} Following a jury trial, appellant was found guilty of the aggravated robbery charge, with a gun specification; felonious assault, with a gun specification; and having weapons under disability. Appellant was found not guilty of the kidnapping charges.
{¶12} A sentencing hearing was held on February 17, 2015. Appellant was sentenced to eleven years on the aggravated robbery charge, eight years on the felonious assault charge, thirty-six months on the having weapons under disability charge, and two, three-year mandatory sentences on the gun specifications.
{¶13} Appellant appealed his conviction and this court overruled four of the five assignments of error, sustained the fifth assignment, vacated the sentence, and remanded the matter for resentencing. State v. Barnes, 5th Dist. Muskingum No. CT2015-0013, 2016-Ohio-1168, appeal not allowed, 146 Ohio St.3d 1430, 2016-Ohio-4606, 52
{¶14} Appellant filed a motion to re-open his appeal pursuant to App.R. 26(B) and that motion was denied on August 28, 2017. Barnes, 2016 -Ohio- 8247.
{¶15} On April 14, 2016 appellant filed a motion for a new trial and submitted a document described as a “deposition” of James Rickett recanting his trial testimony. On November 6, 2016 appellant filed a motion for leave to file a motion for a new trial instanter nunc pro tunc and submitted an affidavit of a “newly discovered witness” Kayla Dickinson and the affidavit of Jasmine Barnes. He then filed a motion for leave to supplement his motion for leave to file a motion for new trial on March 15, 2017 and attached two unsworn statements.
{¶16} Mr. Ricket‘s deposition testimony is at times ambiguous and confusing, but it suggests that his contention is that no robbery occurred on June 8, 2013. Instead, a fight occurred between appellant and Martin which co-defendant Eric Thornton tried to break up. Ricket contends he attempted to tell detectives the truth, but they “threatened” him with jail, suggested he was either a “victim” or a “suspect” leaving him no choice but to corroborate Martin‘s testimony. Appellant purportedly became aware of Ricket‘s deposition in January 2016, when, according to Jasmine Barnes’ affidavit, she received
{¶17} Appellant also submitted Kayla Dickinson‘s affidavit, sworn and signed on April 13, 2016. She asserts that on June 8, 2013 she lived on Cliffwood and was outside on her porch smoking a cigarette when she saw four men get out of a car. She recognized two of the men as Martin and appellant because she “knew both of them well.” She heard escalating verbal argument and observed “they” were scuffling; the fighting escalated and “they” moved down Cliffwood. The affidavit states, “This looked like two grown men fighting. I then heard [appellant] say “oh my god this nigger [sic] has a gun.” She went back inside, convinced this was merely “a stupid mutual fight” between two grown men. “Later” she saw “they” claimed it was a robbery but she thought it was “no big deal” until she learned appellant received a lengthy prison sentence, leading her to “reach out to [appellant‘s] family on Facebook” and let them know it was a mutual fight.
{¶18} Jasmine Barnes affidavit, submitted by appellant provides a different description of discovering Ms. Dickinson‘s testimony. Ms. Barnes states that she met Ms. Dickinson on February 22, 2106, coincidentally, at a laundromat and that Ms. Dickinson disclosed this information during an informal conversation.
{¶19} Appellee responded to appellant‘s motion on May 3, 2016 and appellant replied on May 16, 2016. By judgment entry dated November 1, 2017, the trial court overruled appellant‘s motions and concluded “***the Court finds the Defendant has failed
{¶20} I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT‘S MOTION FOR LEAVE FOR A NEW TRIAL AND MOTION NEW TRIAL (SIC) AS NOT BEING BASED ON NEWLY DISCOVERED EVIDENCE.
{¶21} II. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT‘S MOTION FOR LEAVE FOR A NEW TRIAL AND MOTION FOR NEW TRIAL WITHOUT FIRST HOLDING AN EVIDENTIARY HEARING.
{¶22} Appellant‘s two assignments of error are related and will be considered together. Appellant argues the trial court should have granted leave to file a motion for new trial, conducted a hearing on the motion and should have granted his motion for a new trial based upon the “new” evidence cited above.
{¶23} We addressed a similar motion based upon similar “new evidence” in the case of appellant‘s co-defendant, Eric Thorton in our opinion in State v. Thornton, 5th Dist. Muskingum No. CT2016-0041, 2017-Ohio-637, appeal not allowed, 149 Ohio St.3d 1465, 2017-Ohio-5699, 77 N.E.3d 989 (2017). We have reviewed the record in this case and we conclude that our analysis requires the same results.
STANDARD OF REVIEW
{¶24} A motion for a new trial pursuant to
{¶25}
* * within one hundred twenty days after the day upon which the verdict was rendered. If it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely, such motion shall be filed within seven days from an order of the court finding that he was unavoidably prevented from discovering the evidence within the one hundred twenty day period.
{¶26} The verdict in appellant‘s case was rendered on January 13, 2015 but appellant‘s motion was not filed until April 14, 2016. “Because appellant‘s motion was filed well outside the 120-day period, he was required to obtain leave of court to file his motion for new trial.” State v. Waddy, 10th Dist. No. 15AP-397, 2016-Ohio-4911, 68 N.E.3d 381, appeal not allowed, 149 Ohio St.3d 1462, 2017-Ohio 5699, 77 N.E.3d 987 (2017), and cert. denied, U.S. No. 17-7145, 2018 WL 1037605, citing State v. Hoover-Moore, 10th Dist. Franklin No. 2015-Ohio-4863, 14AP-104, ¶13. “To obtain such leave, the defendant must demonstrate by clear and convincing proof that he or she was unavoidably prevented from discovering the evidence within the 120 days.” Id. A party is “unavoidably prevented” from filing a motion for a new trial if the party had no knowledge of the existence of the ground supporting the motion and could not have learned of that existence within the time prescribed for filing the motion in the exercise of reasonable diligence. Id., citing
{¶27} Appellant‘s proof must be more than conclusory allegations. “Clear and convincing proof that the defendant was ‘unavoidably prevented’ from filing ‘requires more than a mere allegation that a defendant has been unavoidably prevented from discovering the evidence he seeks to introduce as support for a new trial.’ ” State v. Lee, 10th Dist. Franklin No. 05AP-229, 2005-Ohio-6374, 2005 WL 3220245, ¶ 9. The requirement of clear and convincing evidence puts the burden on the defendant to prove he was unavoidably prevented from discovering the evidence in a timely manner. State v. Rodriguez-Baron, 7th Dist. Mahoning No. 12-MA-44, 2012-Ohio-5360, 2012 WL 5863613, ¶ 11. Clear and convincing proof is that “which will produce in the mind of the trier of facts a firm belief of conviction as to the facts sought to be established.” Schiebel, 55 Ohio St.3d at 74.
{¶28} “[I]n order to obtain relief pursuant to
{¶29} Thus, the central inquiry in appellant‘s motion for a new trial is whether the purported evidence offered by Ricket and Dickinson disclose newly-discovered evidence appellant was unavoidably prevented from obtaining. The “phrases ‘unavoidably prevented’ and ‘clear and convincing proof’ do not allow one to claim that evidence was undiscoverable simply because affidavits were not obtained sooner.” State v. Williams, 12th Dist. Butler No. CA2003-01-001, 2003-Ohio-5873, ¶ 21. Appellant complains that incarceration suffices to fulfill the “unavoidably prevented” requirement, but we have held that “*** the fact of his incarceration, by itself, does not equate to clear and convincing proof that he was unavoidably prevented from discovering the evidence within the
{¶30} The trial court‘s ruling in this case does not include an explicit finding that appellant failed to demonstrate he was unavoidably prevented from discovering the evidence. Although
{¶31} Appellant has not offered any explanation that comprises clear and convincing proof that he could not have learned of the existence of Ricket‘s recantation or Dickinson‘s statement within the time prescribed in the exercise of reasonable diligence.
{¶32} Regarding Ricket‘s affidavit and deposition testimony, appellant did not provide any evidence as to his efforts to locate Ricket. Ricket discloses in his affidavit that he had been prepared to recant his testimony since before he was wounded in 2013, even before appellant‘s trial. Appellant has not submitted his own affidavit offering any explanation for the delay. “[I]t has been squarely held that ‘the use of an affidavit signed outside of the time limit [under
{¶33} The “deposition” transcript alone, without an affidavit from Ricket or appellant explaining the underlying circumstances of the recantation, does not establish a sufficient basis for us to find the trial court abused its discretion in overruling the motion without a hearing. Jasmine Barnes’ affidavit, offered over 200 days after the first motion for new trial, offers no evidence that appellant made any diligent effort to obtain Mr. Ricket‘s affidavit.
{¶34} Dickinson‘s affidavit includes no evidence to establish that appellant was “unavoidably prevented” from discovering her statement within the time for filing a motion for new trial. The key issue is whether appellant knew or could have discovered through reasonable diligence within the time period provided under
{¶35} We are unconvinced Dickinson could not have been identified as a potential defense witness prior to trial. The reasonable diligence requirement of
{¶36} No hearing is required, and leave may be summarily denied, where neither the motion nor its supporting affidavits embody prima facie evidence of unavoidable delay. State v. Baldwin, 5th Dist. Stark No. 2013CA00134, 2014-Ohio-290, ¶ 24, citing State v. Peals, supra, at ¶ 23; State v. Clumm, 4th Dist. Athens No. 08CA32, 2010-Ohio-342, ¶ 28; State v. Bush, 10th Dist. Franklin No. 08AP-627, 2009-Ohio-441, ¶ 12; State v. Parker, 178 Ohio App.3d 574, 2008-Ohio-5178, ¶ 21 (2nd Dist.); State v. Norman, 10th Dist. Franklin No. 04AP-1312, 2005-Ohio-5087, ¶ 9. Affidavits filed outside of the 120-day time limit of
{¶37} We find appellant failed to demonstrate why he could not have learned of Dickinson‘s purported knowledge of the crimes with reasonable diligence.
{¶38} Appellant failed to prove by clear and convincing evidence that he was unavoidably prevented from discovering, within the prescribed time period, the evidence he is relying on to support his motion and petition. Accordingly, the trial court did not abuse its discretion in denying appellant‘s motion for leave to file a delayed motion for
CONCLUSION
{¶39} Appellant‘s two assignments of error are overruled and the judgment of the Muskingum County Court of Common Pleas is affirmed. Costs assessed to appellant.
By: Baldwin, J.
Gwin, P.J. and
Earle Wise, J. concur.