STATE OF OHIO v. JESSE METCALF
Appellate Case No. 26101
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
August 28, 2015
[Cite as State v. Metcalf, 2015-Ohio-3507.]
Trial Court Case No. 2010-CR-197
(Criminal Appeal from Common Pleas Court)
Rendered on the 28th day of August, 2015.
MATHIAS H. HECK, JR., by Kirsten A. Brandt, Atty. Reg. No. 0070162, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
DANIEL F. GETTY, Atty. Reg. No. 0074341, 46 East Franklin Street, Centerville, Ohio 45459
Attorney for Defendant-Appellant
FAIN, J.
{¶ 1} Defendant-appellant Jesse Metcalf appeals from an order overruling his
I. Course of Proceedings
{¶ 2} Metcalf was convicted and sentenced to serve a total of 41 years to life, for Murder, Aggravated Robbery, Aggravated Burglary, and Having a Weapon While Under a Disability. Metcalf appealed. We affirmed. State v. Metcalf, 2d Dist. Montgomery No. 24338, 2012-Ohio-6045. More than three years later, Metcalf filed a pro se motion for leave to file a delayed motion for a new trial, and attached two affidavits. In his own affidavit, Metcalf averred that his newly discovered evidence had just been obtained when his mother came to visit him in prison and admitted her connection to the murder victim. In her affidavit, Metcalf‘s mother confirmed this connection to the victim, and averred that she had not previously told her son or the detective about this connection because she was ashamed. Metcalf further alleges that mental health counseling in prison has led him to realize that he was suffering from a mental condition of “homophobia” at the time of the offense. Metcalf asserts that this new information would have supported different defenses to his offenses, and that he should be given a new trial to present these defenses.
{¶ 3} The State opposed the motion for leave to file a delayed motion for a new trial, arguing that Metcalf had failed to present clear and convincing evidence that he was unavoidably prevented from discovering the new evidence within the time limit set by
II. Standard of Review
{¶ 4} A trial court‘s decision on a
{¶ 5} “The abuse of discretion standard is defined as ‘[a]n appellate court‘s standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence.’ ” State v. Mollett, 2d Dist. Clark No 2014-CA-85, 2015-Ohio-1670, ¶ 17, citing State v. Boles, 2d Dist. Montgomery No. 23037, 2010-Ohio-278, ¶ 18.
{¶ 6} Therefore, the trial court‘s decision denying Metcalf the opportunity to file a motion for a new trial must be affirmed unless the basis of the decision is grossly unsound, unreasonable, illegal or unsupported by the evidence.
III. The Proffered Evidence Was Not Newly Discovered
{¶ 7} Metcalf asserts one assignment of error:
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
{¶ 8}
When a defendant attempts to offer new evidence after the 120-day time limit has passed, the defendant must establish: “(1) that it is new evidence; (2) that he was unavoidably prevented from discovering within the time limit; (3) that it is based on fact; and (4) that the evidence is being proffered in good faith.” State v. Beavers, 2d Dist. Montgomery No. 22588, 2009-Ohio-5604, ¶ 27, citing 2 Baldwin‘s Ohio Practice, Section 79:9. Accordingly, the credibility of the new evidence must be assessed. Id at ¶ 27, citing State v. Martin, 2d Dist. Montgomery No. 20383, 2005-Ohio-209, ¶ 16.
{¶ 9} Whether the proffered evidence meets the grounds set forth for a new trial in
{¶ 10}
{¶ 11} It has been acknowledged that a defendant may be unavoidably prevented from discovering new evidence based on misconduct of the jury, prosecutor, or a witness, when the misconduct occurred outside of court proceedings and was unknown to the court or counsel at the time of the occurrence. State v. Walden, 19 Ohio App. 3d 141, 483 N.E. 2d 859 (10th Dist. 1984). We have held that a movant fails to demonstrate that he was unavoidably prevented from discovering new evidence when he would have discovered the information earlier had he exercised due diligence and some effort. State v. Warwick, 2d Dist. Champaign No. 01CA33, 2002-Ohio-3649. In the case before us,
{¶ 12} Even if shame and humiliation were considered grounds for finding unavoidable prevention of discovery of pertinent facts, the record does not support a finding that the evidence proffered by Metcalf constitutes “new” evidence. Metcalf theorizes that if he had been able to present the evidence from his mother, he would have been able to pursue a self-defense claim. However, any evidence supporting a claim for self-defense would have been known to the defendant from the moment of the actual killing, cannot be described as a theory of which he had no knowledge, and does not properly constitute newly discovered evidence under
{¶ 13} Metcalf further suggests that his mental health counseling in prison has helped him identify that he suffers from a mental condition described as “homophobia,” which was responsible for his actions and prevented him from reasonably assisting in his defense. However, Metcalf did not proffer any credible evidence that his mental condition meets the definition in
IV. Conclusion
{¶ 14} Metcalf‘s sole assignment of error having been overruled, the order of the trial court overruling his motion to file a delayed motion for a new trial is Affirmed.
FROELICH, P.J., and DONOVAN, J., concur.
Copies mailed to:
Mathias H. Heck
Kirsten A. Brandt
Daniel F. Getty
Hon. Gregory F. Singer