STATE OF OHIO v. MICHAEL MCCONNELL
Appellate Case No. 24315
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
October 28, 2011
[Cite as State v. McConnell, 2011-Ohio-5555.]
Trial Court Case No. 03 CR 00400; (Criminal Appeal from Common Pleas Court)
JAY A. ADAMS, Atty. Reg. #0072135, 424 Patterson Road, Dayton, Ohio 45419 Attorney for Defendant-Appellant
OPINION
Rendered on the 28th day of October, 2011
WAITE, J. (Sitting by Assignment)
{¶ 1} This is Appellant Michael McConnell‘s third appeal concerning his June 2003 conviction for the rape of his eight-year-old daughter. Appellant initially appealed his conviction, which was affirmed. Appellant then sought leave to file a motion for new trial in 2006. The trial court denied his motion without a hearing, Appellant appealed, and we
{¶ 2} Two years after the trial court‘s entry granting him leave, in May of 2009, Appellant, without seeking additional leave, filed a motion for new trial citing the same grounds as the 2006 request for leave to file a motion for new trial. The trial court denied the Mаy of 2009 motion as untimely under
FACTUAL AND PROCEDURAL HISTORY
{¶ 3} The pertinent facts concerning the underlying prosecution and Appellant‘s subsequent motions are as follows. In June of 2003 Appellаnt was convicted of the rape of his eight-year-old daughter, D.M. At trial, D.M. gave a detailed account of the incident, relating that she awoke to find her father pulling her underwear down and placing his “front” in her “back.” Her testimony at trial was consistent with her prior statements to her mother, Clare, and those made to the doctor in the emergency room who examined her when she was taken to the hospital by her mother. The emergency room doctor‘s assessment and D.M.‘s medical history were examined by a second doctor, an expert on child abuse. Both examining doctors testified at trial that the injury D.M. sustained was consistent with the
{¶ 4} Appellant denied molesting his daughter at trial, and instead claimed his daughter must have “rolled over onto what he described as his ‘morning wood,‘” resulting in the fissure described by the medical witnesses. (9/4/09 Memo Contra Motion for New Trial, p. 3.) Alternate testimony was also offered that “he did not do it and that if he did, he did not mean it bеcause he thought that D.M. was Clare [his wife].” (6/7/06 Decision Order and Entry Denying Motion for Leave to File Motion for New Trial, p. 3.) Clare appears to have testified at trial on Appellant‘s behalf. Appellant filed a timely appeal of his conviction; the conviction was affirmed and the Ohio Supreme Court declined review.
{¶ 5} On or about February 20, 2006, Appellant filed a motion seeking leave to file a motion for new trial. The state‘s memorandum contra was filed on March 16, 2006. Appellant filed an amended motion on March 20, 2006, and his reply to the state‘s memo was filed on April 25, 2006. Attached to the amended motion was a March 9, 2006 affidavit of Clare which simply statеd: “Sometime in January 2006, my daughter came to me and said that she felt very bad. She told me that nothing had happened between her and her father that she may have dreamed that this had happened.” (State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, ¶ 5.) The trial court reviewed the motions and the trial transcript and denied Appellant‘s motion for leave on June 7, 2006. The trial court fоund that Appellant‘s incarceration was not a sufficient impediment to obtaining his daughter‘s alleged recantation
{¶ 6} On July 27, 2007, the trial court granted Appellant leave to file his motion for new trial pursuant to
{¶ 7} On July 12, 2010, more than a yeаr after filing his untimely motion for new trial, Appellant filed a third motion for leave to file for new trial, this time with his motion for a new trial attached. In support of this, second, motion seeking leave, Appellant attached a copy of the same affidavit offered in support of the previous year‘s motion for new trial, but no new affidavit or other evidence was presented. The motion itself was substantively identical to the motion denied by the trial court the year before. The copy of the affidavit was not certified or otherwise authenticated. Again, no explanation as to the delay was given and no new evidence was offered. The state filed an opposing motion. On September 29, 2010, the trial court cited the record demonstrating Appellant was aware of the “new evidence” offered in support of the 2010 motion for more than four years, as early as February of 2006, when he filed his original motion. The court found this third attempt to gain a new trial was barred by the doсtrine of res judicata. Appellant filed a timely appeal on October 29, 2010.
ASSIGNMENT OF ERROR
{¶ 8} “THE TRIAL COURT ERRED IN ISSUING AN ORDER AND ENTRY OVERRULING THE MOTION FOR NEW TRIAL.”
{¶ 9} In his sole assignment of error, Appellant asserts the trial court should have allowed, at minimum, a hearing on his renewed combined motion for leave to file and motion for new trial.
{¶ 10}
{¶ 11} “(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.”
{¶ 12} The rule further provides a limitation on the time in which a defendant has to file the motion:
{¶ 13} “Motions for new trial on account of newly discovered evidence shall be filed within one hundred twenty days after the day upon which the verdict was rendered, or the decision of the court where trial by jury has been waived. 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 sevеn days from an order of the court finding that he was unavoidably prevented from discovering the evidence within
the one hundred twenty day period.” Crim.R. 33(B) .
{¶ 14} The trial court cannot extend the time to file a motion under
{¶ 15} “A trial court must first determine if a defendant has met his burden of establishing by clear and convincing proof that he was unavoidably prevented from filing his motion for a new trial within the statutory time limits. If that burden has been met but there has been an undue delay in filing the motion after the evidence was discovered, the trial court must determine if that delay was reasonable undеr the circumstances or that the defendant has adequately explained the reason for the delay.” State v. Stansberry (Oct. 9, 1997), Cuyahoga App. No. 71004. See, also, State v. Kimbrough, Cuyahoga App. No. 84863, 2005-Ohio-1320, at ¶ 17; State v. Newell, Cuyahoga App. No. 84525, 2004-Ohio-6917; State v. Valentine, Portage App. No. 2002-P-0052, 2003-Ohio-2838, at ¶ 9; State v. York (April 6, 2001), Greene App. No. 2000 CA 70.
{¶ 16} The trial court‘s determination of a
{¶ 17} Appellant asserts that D.M. recanted her testimony in January 2006. In 2006, Appellant sought and obtained leave to present evidence of D.M.‘s recantation. Having obtained leave, Appellant failed to act on that leave for two years. When Appellant filed his motion for new trial twо years after he was granted leave, it was properly denied. The motion was barred by
{¶ 18} The essence of
{¶ 19} Even if Appellant had produced the affidavit filed in 2009 during the original seven-day period, it is unlikely such evidence would have carried a motion for new trial. Although the decision would have remained within the discretion of the trial court, not only are recantations viewed with disfavor, the explanation of the physical evidence suggested in the recantation is identical to the explanation that was raised and discarded based on medical evidence at trial. D.M.‘s age, the fact that Appellant is her father and the fact that her mother both testified on his behalf at trial, and originally attested to the alleged recantation, are all suggestive of coercion. Moreover, the elements of the alleged recantation are not included in the affidavit and are not sworn statements. Motions for new trial are not granted lightly and “[n]ewly discovered evidence which purportedly recants testimony given at trial is ‘looked upon with the utmost suspicion.‘” State v. Isham (Jan. 24, 1997), Montgomery App. No. 15976. The trial court would be required to make two findings “(1) which of the
{¶ 20} As courts have found statewide, challenges must be timely and where genuinely new evidence is discovered, such evidence must be brought to light as soon as possible. Not only is Appellant‘s motion tardy, the motion is itself facially deficient. Appellant has mistaken the nature of the proof required when making a
CONCLUSION
{¶ 21} The trial court did not abuse its discretion when it denied Appellant‘s motions for leave to file a delayed motion for new trial and/or motion for a new trial. Appellant has failed to comply with the requirements of
GRADY, P.J., and DONOVAN, J., concur.
(Hon. Cheryl L. Waite, Seventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Mathias H. Heck
Johnna M. Shia
Jay A. Adams
Hon. Mary Katherine Huffman