State v. LanierState v. Lanier
Rendered on the 25th day of June, 2010.
ROGER A. WARD, Atty. Reg. No. 0065394, Assistant Prosecuting Attorney, 50 East Columbia Street, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
ROGER LANIER, #556419, Warren Correctional Institute, P. O. Box 120, Lebanon, Ohio 45036
Defendant-Appellant
FROELICH, J.
{¶ 1} Roger Lanier appeals from the denial of his motion for leavе to file an untimely motion for a new trial based on newly discovered evidence. For the following reasons, the trial court‘s judgment will be affirmed.
I
{¶ 3} On July 21, 2009, Lanier filed a motion for leave to file an untimely motion for a new trial. Simultaneously, he submitted his motion for a new trial based on newly discovered evidence. In his motion for leave, Lanier asserted that a new witness had recently been discovered and located. Lanier stated: “This nеw witness had to be located by Ms. [Nikki] Harding, whom has also presented an affidavit swearing how she searched and located Ms. Musheer, the owner of the gun.” Lanier stated that Brenn Musheеr would testify that she had accidentally left the gun in the vehicle that Lanier later drove and that Lanier did not know that she had left the gun behind.
{¶ 4} Affidavits from Harding, Musheer, and Lanier were attached to his accompanying motion for a new trial. Lanier‘s affidavit stated:
{¶ 5} “On April 12, 2007 I asked Kiesha D. Morris to use her car to go to the store. As I was returning from the store I was stopped by the police. I was asked for my license by the police and when I produced it, it was determined that my license was expired. The police placed me in the backseat of the police car at that time. A search was made of the car I was driving and a gun was found. I told the police nothing just as Officer Anna Fredendall stated in her direct tеstimony in trial. I never knew a gun was in the car until the police
{¶ 6} Harding‘s affidavit read:
{¶ 7} “In regards to Roger Lanier‘s case I had to find the owner of the gun that was left in the car Roger was driving. Considering he didn‘t know who the owner of the gun was I had to check several possibilities before I found the owner Miss Musheer.
{¶ 8} “Miss Musheer did agree to write a statement stating it was her gun and she has reciepts [sic] for the gun that she left in the car by mistake.”
{¶ 9} Musheer‘s affidavit stated:
{¶ 10} “I was riding with a friend earlier the day of April 12, 2007. My Taurus 9mm was left by mistake. [D]uring this time I was moving boxes and bags out of the car. The driver left before I could grab my gun out of the car. I had no way of getting in contact with the driver befored [sic] she returned to her destination. Mr. Lanier apparently used the car without knowing the gun was there. The owner of the car called and stated that Mr. Lanier was charged with the gun, after being pulled over. I was told to present a statement and proof of purchase of the Taurus 9mm which if needed proof of purchase can be presented on his behalf. I give testimony on this day 2-24-09 @ 1:38 p.m.”
{¶ 11} On August 11, 2009, the trial court overruled Lanier‘s motion for leave, stating simply, “Defendant‘s motion for leаve of court to file a motion for a new trial is OVERRULED.” Lanier appeals from the trial court‘s judgment.
II
{¶ 12} Lanier‘s sole assignment of error states:
{¶ 13} “THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE
{¶ 14} ”
{¶ 15} A defendant who seeks a new trial after the 120-day time period must first obtain leave from the trial court, demonstrating “by clear and convincing evidence that he or she was unavoidably prevented from timely filing the motion for a new trial or discovering the new evidence within the time period рrovided by
{¶ 17} Although a defendant may file his motion for a new trial along with his request for leave to file such motion, the trial court may not consider the merits of the motion for a new trial until it makes a finding of unavoidable delay. York, supra; Stevens at ¶11.
{¶ 18} We review the trial court‘s denial of leave to file a motion for a new trial for an abuse of discretion. State v. Neguse, Franklin App. No. 09AP-843, 2010-Ohio-1387, ¶7. See, also, Parker at ¶24. An abuse of discretion occurs when the dеcision of a court is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 19} Lanier was convicted in July 2007, but he did not file his motion for leave to file a motion for new trial based on newly discovered evidence until July 2009, well beyond the 120-day limit in
{¶ 20} Initially, we note that the State arguеs, in part, that Lanier‘s new evidence would not justify granting his motion for a new trial. The State points out that Musheer claimed to own a Taurus 9mm pistol whereas a .40 caliber firearm was intrоduced at
{¶ 21} We emphasize that the merits of Lanier‘s motion for a new trial are not before us. The alleged deficiencies in Lanier‘s supporting affidavits notwithstanding, our sole concern is whethеr the trial court abused its discretion in denying, without a hearing, Lanier‘s motion for leave to file a motion for a new trial, not whether the motion for a new trial has merit. As such, we may consider only whether Lanier was unavoidably prevented from obtaining his new evidence and filing a timely motion for a new trial or, at the very least, whether Lanier‘s supporting affidavits on thеir face support his claim that he was unavoidably prevented from timely discovering the evidence such that the trial court should have held a hearing on whether he was unavоidably prevented from timely discovering the evidence.
{¶ 22} Even accepting the affidavits attached to Lanier‘s motion for a new trial as true, we find no evidence demonstrаting that Lanier was unavoidably prevented from locating Musheer in a timely manner and, consequently, we cannot find that the trial court abused its discretion in denying, without a hearing, Lanier‘s mоtion for leave to file a
{¶ 23} Obviously, if there is new evidence which might tend to result in a new trial, a defendant wants to locate it and present it to the court without unavoidable delay. It could be argued that Harding‘s affidavit suggests no avoidable delay. However, that argument would be present, almost by definition, in any late motion for a new trial. The law is clear that the burden is on the movant to submit documents which, on their face, support his claim that he was unavoidably prevented from timely discovery of the new evidence, and the trial court did not abuse its discretion in finding that Lanier did not.
{¶ 24} The assignment of error is overruled.
III
{¶ 25} The trial court‘s judgment will be affirmed.
FAIN, J. and DONOFRIO, J., concur.
Copies mailed to:
Roger A. Ward
Roger Lanier
Hon. Douglas M. Rastatter