State v. CovenderState v. Covender
Dated: June 21, 2010
CARR, Judge.
{¶1} Appellant, Joel Covender, appeals the judgment of the Lorain County Court of Common Pleas denying his motion for a new trial. This Court affirms.
I.
{¶2} On April 20, 1994, Covender was indicted on one count of gross sexual imposition in violation of
{¶3} On April 11, 2007, Covender moved for a new trial. The basis for his motion was that A.S., his former step-daughter and one of the complaining witnesses in his 1996 conviction, had recanted her trial testimony.1 The trial court held a hearing on the motion on June 14, 2007. On July 18, 2007, the trial court granted Covender‘s motion for new trial. The State timely appealed from that judgment. On March 31, 2008, this Court concluded that A.S.‘s testimony at the hearing did not constitute a recantation and reversed the trial court‘s judgment. See State v. Covender, 9th Dist. No. 07CA009228, 2008-Ohio-1453 (“Covender II”).2
{¶4} On June 27, 2008, Covender filed a second motion for a new trial. The basis for the motion was an affidavit of David Slone, the biological father of A.S. The affidavit was dated June 26, 2008. Slone averred that he had witnessed his own mother, Debbie Slone, along with Nancy Kullman, the maternal step-mother of A.S., pressure and coerce A.S. to testify and give false statements against Covender. Slone averred that he “specifically witnessed Nancy Kullman and Debbie Slone repeatedly tell [A.S.] how to testify and how to answer questions from persons of authority.” Slone further averred, “[r]epeatedly they would tell [A.S.] to say that Joel placed his finger into her vagina and all of the other circumstances which she eventually testified to at trial.” Slone also averred that he regularly witnessed Nancy Kullman reading a book entitled, “No More Secrets From Me” to A.S. Slone averred this book dealt with child molestation and the final chapter dealt specifically with molestation being perpetrated by a step-father against a
{¶5} The trial court held a hearing on the motion on June 4, 2009. Slone did not appear to testify at the hearing. The trial court‘s subsequent journal entry, dated June, 29, 2009, indicated that Slone did not respond to a subpoena. At the hearing, counsel for Covender read Slone‘s affidavit into the record. Both parties called witnesses and presented exhibits. Subsequently, on June 29, 2009, the trial court ruled that the testimony of David Slone would not materially affect the outcome of trial and denied the motion. In reaching this conclusion, the trial court stated that it could not incorporate evidence from the first motion for new trial when determining the merits of the second motion for new trial.
{¶6} Covender filed his notice of appeal on July 24, 2009. On appeal, he raises two assignments of error.
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED WHEN IT DETERMINED IT WAS NOT ALLOWED TO INCORPORATE THE EVIDENCE PRESENTED FROM APPELLANT‘S FIRST MOTION FOR NEW TRIAL IN THIS MATTER[.]”
{¶7} In his first assignment of error, Covender argues that the trial court should have considered evidence presented in support of the first motion, specifically the testimony of A.S., when ruling on the second motion in light of the averments of David Slone. This Court disagrees.
{¶8} The Supreme Court of Ohio has held that the doctrine of the law of the case stands for the proposition that “[t]he decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the
{¶9} In deciding Covender II, this Court considered the evidence offered in support of Covender‘s first motion for new trial.
{¶10} This Court has concluded that the testimony of A.S. at the hearing on the first motion for new trial was not based on personal knowledge as required by
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT‘S MOTION FOR A NEW TRIAL[.]”
{¶11} In his second assignment of error, Covender argues that the trial court erred in denying his motion for a new trial. This Court disagrees.
{¶12} The decision to grant a motion for a new trial is within the sound discretion of the trial court. State v. Schiebel (1990), 55 Ohio St.3d 71, paragraph one of the syllabus. A reviewing court will not disturb the trial court‘s decision absent an abuse of discretion. Id. The term “abuse of discretion” connotes more than an error of judgment; it implies that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. An abuse of discretion demonstrates “perversity of will, passion, prejudice, partiality, or moral delinquency.” Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621. When applying the abuse of discretion standard, this Court may not substitute its judgment for that of the trial court. Id.
{¶13} Pursuant to
“(6) When new evidence material to the defense is discovered which the defendant could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as is reasonable under all the circumstances of the case. The prosecuting
attorney may produce affidavits or other evidence to impeach the affidavits of such witnesses.”
{¶14} The Supreme Court of Ohio has stated:
“To warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence.” State v. Petro (1947), 148 Ohio St. 505, syllabus.
{¶15} This Court has emphasized that “[t]o warrant the granting of a new trial, the new evidence must, at the very least, disclose a strong probability that it will change the result if a new trial is granted.” State v. Holmes, 9th Dist. No. 05CA008711, 2006-Ohio-1310, at ¶15, quoting State v. Starling, 10th Dist. No. 01AP-1344, 2002-Ohio-3683, at ¶13.
{¶16} Covender argues there was a strong probability that the new evidence, indicating that David Slone witnessed the coercion and manipulation of A.S., would have affected the outcome of trial. The State contends that the new evidence would not have affected the outcome of trial. The State also argues that the claims raised in Covender‘s second motion for new trial are barred by the doctrine of res judicata as they amount to an attempt to re-litigate the issues raised in Covender‘s first motion for new trial.
{¶17} A copy of the transcript from the 1996 trial has not been included in the appellate record. ”
{¶18} Covender‘s second assignment of error is overruled.
III.
{¶19} Covender‘s assignments of error are overruled. The Judgment of the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
MOORE, J. CONCURS
BELFANCE, P. J. DISSENTS, SAYING:
{¶20} I respectfully dissent, as I would decline to apply the law of the case doctrine to overrule Mr. Covender‘s first assignment of error.
{¶21} In this case, the trial court stated that if it were permitted to consider the newly discovered evidence presented in the first motion for new trial and the evidence presented in the current motion for new trial, it would order a new trial. The court further stated that even acknowledging this Court‘s prior decision in Covender II, “the combination of [A.S.‘s] failure to have any memory of any type of sexual misconduct perpetrated by the defendant (regardless as to whether this is characterized as something less than a complete recantation) and David Slone‘s testimony that he witnessed A.S.‘s grandmothers coaching A.S. on what to say create a strong probability that the combination of this evidence would materially affect the outcome of the trial and would probably produce a different result.” Thus, in light of this Court‘s prior decision, the trial court felt constrained to deny Mr. Covender‘s second motion for new trial notwithstanding its conclusion that a new trial was warranted.
{¶22} As noted by the majority, the law of the case doctrine “provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all
“Thus, while a trial court cannot alter the law of the case as mandated by an appellate court, an appellate court may choose to reexamine the law of the case it has itself previously created, if that is the only means to avoid injustice. However, such reexaminations must not be undertaken lightly by an appellate court, nor encouraged as a common course of conduct for unsuccessful litigants.” (Citation omitted.) Weaver v. Motorists Mut. Ins. Co. (1990), 68 Ohio App.3d 547, 549; see, also, Layne v. Westfield Ins. Co. (Feb. 13, 2002), 4th Dist. Nos. 01CA2596, 01CA2598, at *5; Kingston v. Austin Dev. Co. (Feb. 5, 1998), 8th Dist. No. 72034, at *6; (Porter, P.J., dissenting); Pavlides v. Niles Gun Show, Inc. (1996), 112 Ohio App.3d 609, 615.
{¶23} I would conclude that this Court should reconsider the legal conclusion in Covender II that A.S.‘s testimony could not qualify as evidence under
“A.S.‘s answers on cross-examination, however, are not evidence that she was not testifying from personal knowledge when she said Mr. Covender never molested her; rather, her answers are an acknowledgment of the nature of memory. When a person says that something never happened to her, it is not because she remembers everything that happened to her every minute of every day of her life. It is because, based upon the nature of the event she has been asked to recall, she ‘believe[s]’ or ‘feel[s]’ that, if that event had happened to her, she would remember.” Covender II at ¶31.
Thus, regardless of the characterization of A.S‘s testimony as a recantation, A.S.‘s testimony was based upon personal knowledge and was thus admissible as evidence for the trial court to consider. Likewise, in considering Mr. Covender‘s second motion for new trial, the trial court should be able to consider A.S.‘s testimony along with the new evidence presented in evaluating whether it is appropriate to grant a new trial.
{¶24} Thus, I would hold that this Court is not barred under the law of the case doctrine from allowing the trial court to consider the new evidence set forth in Mr. Covender‘s second motion along with the evidence from Covender II in determining whether a new trial is warranted. Therefore, I would sustain Mr. Covender‘s first assignment of error. Further, as the disposition of the first assignment of error would render the second assignment of error moot, I would not address it.
APPEARANCES:
W. SCOTT RAMSEY, Attorney at Law, for Appellant.
DENNIS WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting Attorney, for Appellee.