2004 Ohio 3630 | Ohio Ct. App. | 2004
{¶ 3} Although the court issued the journal entry for the warrant on November 6, 2001, the court failed to fill in the blank for the day of November 2001 that the matter came before it for consideration. In the first line of the journal entry, the court stated that it was issuing the warrant to Ross County Sheriff Ron Nichols.
{¶ 4} Remy owns the property located at 95 South Renick Avenue. His daughter, Diane Barnett, is the president and chief operating officer of Paul's Motor Sales. The property consists of a car lot with over 200 vehicles, a customer parking area, and a building with offices and a bedroom.
{¶ 5} Members of the Ross County Sheriff's Department, led by Captain Calhoun, and members of the Chillicothe Police Department, led by Detective James Lowe, executed the warrant on November 6, 2001. Sheriff Ron Nichols was not present. When the law enforcement officers arrived, they found the business unlocked and entered through the front door. Remy and several other people were present when officers arrived. Officers detained the individuals in one room during the execution of the warrant. One of the people present, Hank Spencer, has a felony record for drug trafficking.
{¶ 6} Detective Lowe discovered that one door was locked. Rather than damage the door, he asked the people present if any of them had a key to the room. Remy stated that he had a key to the room and that it was his bedroom. Remy unlocked the door for the officers. Inside the locked bedroom officers found crack-cocaine on the nightstand, in the dresser, in the bed, under the mattress, in a bathrobe pocket, and in the suspended ceiling. They also found certificates of deposit in Remy's name with a value of $160,000.
{¶ 7} After the drugs were discovered in Remy's bedroom, officers removed him from the building and placed him under arrest. He received Miranda warnings, orally indicated that he understood his rights, signed a waiver of rights form, and gave a statement. During his statement, Remy said that the bedroom was his, and that no one else had a key to the bedroom. When asked about the cocaine in the room, Remy stated that he had five or six women running in and out of his bedroom at all hours of the night.
{¶ 8} When officers searched Remy, they found a large amount of cash and a metal capsule containing a small amount of cocaine powder residue. Additionally, officers found a small amount of cocaine in Remy's truck.
{¶ 9} The warrant authorized officers to seize items related to trafficking in drugs, drug abuse, and drug paraphernalia offenses and items related to those offenses, including computers, certificates of deposit, jewelry, currency, bank records, photographs, and video tapes. A laptop computer was among the items seized. Officers later learned that the laptop was stolen.
{¶ 10} The Ross County Grand Jury indicted Remy for one count of possession of crack-cocaine in an amount greater than twenty-five grams and for one count of receiving stolen property. Remy pled not guilty to the charges and filed a motion to suppress the evidence obtained in the search. The trial court held a hearing on the motion and denied it.
{¶ 11} The State was initially represented by Assistant Prosecuting Attorney Michael Ater. Michael is married to Jennifer Ater, a former assistant prosecuting attorney. Jennifer represented Remy in an unrelated, non-criminal matter several years before this matter arose. Remy still owes Jennifer money for legal services she rendered on his behalf. Remy filed a motion to cause the entire Ross County Prosecutor's Office to disqualify itself from the case due to a conflict of interest. Meanwhile, Michael Ater was called to active military duty and Ross County Prosecutor Scott Nusbaum took over for the prosecution. The trial court denied Remy's motion, noting that Michael Ater was no longer involved in the matter. Michael Ater represents the State in this appeal.
{¶ 12} Remy moved for a separation of witnesses during the trial, and the court granted his motion. However, the State designated Detective Lowe as its representative. Therefore, the trial court allowed Detective Lowe to remain in the courtroom and sit at the counsel table throughout the trial. Detective Lowe testified last in the State's case.
{¶ 13} The State included an individual named Tonya Sue Perry on its witness list and subpoenaed her to testify at trial. Perry did not appear at the trial as ordered. The court issued a warrant for Perry's failure to appear as a witness.
{¶ 14} During the trial, witnesses and counsel frequently used the terms "cocaine" and "crack-cocaine" interchangeably. The State's expert witness, Keith Taggart, testified that "crack-cocaine" is street terminology for a base form of cocaine created when powder cocaine is mixed with a substance such as baking soda and heated. Taggart specified that the cocaine found in Remy's bed, under his mattress, in his bathrobe, in his dresser, and in the ceiling was the base form of cocaine.
{¶ 15} In his cross-examination of Detective Lowe, Remy sought to introduce a copy of the journal entry whereby an individual named Hank Spencer was convicted of drug trafficking. The State objected on relevancy grounds. The trial court sustained the State's objection, but stated that it would allow Remy to present evidence of the conviction if he could also present evidence that the Hank Spencer named in the journal entry was the same individual as the Hank Spencer present at Paul's Motor Sales at the time officers executed the search warrant.
{¶ 16} The State dismissed the receiving stolen property charge. The jury found Remy guilty of possessing cocaine in an amount excess of twenty-five grams. At the sentencing hearing, the trial court found that the shortest available prison term, three years, would demean the seriousness of Remy's conduct. The court ordered Remy to serve a prison term of four years.
{¶ 17} Remy filed a motion for a new trial due to newly discovered evidence. Remy based his motion on a letter that was placed in the court's mailbox on June 30, 2003, by an unknown source. The court shared the letter with the prosecutor and defense counsel in chambers. The letter contains a confession allegedly from Perry, the State's witness who failed to appear, that the cocaine in his ceiling belonged to her and another woman, Dorothy Spencer. The letter also states that Remy was home when they stashed the cocaine in his ceiling, and that he provided them with the plastic bag to hold the cocaine. Additionally, the letter states that Perry and Spencer informed Remy that the cocaine stashed in the ceiling was theirs approximately four weeks after the November 6, 2001 raid. The trial court denied Remy's motion for a new trial without holding a hearing.
{¶ 18} Remy appeals, asserting the following ten assignments of error: "I. The trial court committed prejudicial error by failing to sustain [Remy's] motion to cause the Ross County Prosecutor's to disqualify itself for conflict of interest. II. The trial court committed prejudicial error by not sustaining [Remy's] motion to suppress the search warrant and the items seized. III. The jury's verdict is against the manifest weight of the evidence. IV. The trial court committed prejudicial error by not suppressing any statements made by [Remy] in violation of his Miranda rights and which are not provided per Crim.R. 16. V. The trial court committed prejudicial error in not sentencing [Remy] to the statutory minimum sentence. VI. The trial court committed prejudicial error by permitting the jury to consider crack-cocaine and powder cocaine which were not properly qualified and quantified. VII. The prosecutor committed prejudicial error by misleading the jury in final argument. VIII. The trial court committed prejudicial error when it would not allow the defense to introduce the felony record of a witness who was present at the search warrant location. IX. The trial court committed prejudicial error when it allowed a violation of the separation of witness rule. X. The court committed prejudicial error by overruling [Remy's] motion for a new trial without an oral hearing."
{¶ 20} The trial court noted that Remy does not allege that Jennifer ever represented him in any capacity relating to the charges against him in this case. Remy did not identify what type of matter he consulted with Jennifer about, and did not attempt to identify any confidences or secrets he may have disclosed to Jennifer that could be exploited to the State's advantage in this case.
{¶ 21} Remy supports his argument that the prosecutor's office should have disqualified itself with the Supreme Court of Ohio Board of Commissioners on Grievances and Discipline's Opinion 93-7. Opinion 93-7 stands for the proposition that "[a]n assistant county prosecutor and a criminal defense attorney who are spouses may not represent opposing parties in a criminal matter." The opinion relates to disciplinary rules for attorneys, not to grounds for reversal of a criminal conviction. The Supreme Court of Ohio has held that, to show that a trial court committed reversible error by failing to require the prosecutor's office to remove itself due to a claimed conflict of interest related to prior representation, the defendant must demonstrate that he suffered some prejudice as a result of the past representation.State v. Sweet (1995),
{¶ 22} Here, spouses are not representing the opposing parties in the same matter. Jennifer's representation of Remy ended before the State brought the current charges against Remy. Thus, the factual situation analyzed in Opinion 93-7 is not analogous to the facts here. Additionally, Remy has not alleged that Jennifer's prior representation of Remy is related in any way to the charges presented in this case. Remy has not shown that he suffered any prejudice as a result of the alleged conflict of interest in this case. Accordingly, we overrule Remy's first assignment of error.
{¶ 25} While an informant's veracity, reliability, and basis of knowledge are relevant considerations in the totality of the circumstances analysis, they are not to be viewed as rigid requirements that must be demonstrated before a search warrant may be issued. See Gates,
{¶ 26} Here, the affidavit supporting the search warrant contained evidence providing a substantial basis for concluding that probable existed. Specifically, a confidential informant who had worked for Paul's Motor Sales informed officers that he or she had seen cocaine, crack-cocaine, and marijuana being used and sold at Paul's Motor Sales by Paul Remy and others. The confidential informant's tip was corroborated by the fact that the confidential informant had provided information in the past that led to felony arrests. Additionally, the confidential informant's tip was corroborated by the fact that the Chillicothe Police Department had made several stops on persons leaving Paul's Motor Sales and found them in possession of crack-cocaine. Thus, we disagree with Remy's contention that the warrant was issued without probable cause.
{¶ 28} Violations of state law that do not rise to the level of constitutional error "are classified as nonfundamental and require suppression only where the search might not have occurred or would not have been as abrasive if the rule had been followed or where there is evidence of intentional and deliberate disregard of the provision in the rule." State v. Morse, Warren App. Nos. CA2001-11-099 and CA2001-11-100, 2002-Ohio-3873 at ¶ 21, citing State v. Wilmoth (1986),
{¶ 29} Here, the issuing judge attached the affidavit to the warrant as required by R.C.
{¶ 31} Remy also asserts that the officers executed the search with an overbroad scope. Specifically, Remy complains that the officers seized a computer, and later charged him with receiving stolen property with regard to the computer, when the warrant contains no mention of stolen property. Remy ignores the fact that the warrant specifically authorized the seizure of "computers, computer disks, tapes, or other storage devices, and the records contained therein or generated thereby * * *." Thus, the warrant specifically authorized the seizure of the computer. Additionally, Remy suffered no prejudice as a result of the seizure of the computer, because the State ultimately dropped the receiving stolen property charge.
{¶ 32} Finally, Remy argues the warrant was not properly returned, "as nothing was brought before the issuing magistrate." However, the record contains a file-stamped copy of the return, dated November 6, 2001, and Remy attached a copy of the return to his brief. Thus, the record does not support Remy's contention that the officers did not properly return the warrant.
{¶ 33} Because Remy's challenges to the warrant lack merit, we find that the trial court did not err in refusing to sustain his motion to suppress. Accordingly, we overrule Remy's second assignment of error.
{¶ 36} Law enforcement officials are obligated to administerMiranda warnings only to those who are interrogated while "in custody." Oregon v. Mathiason (1977),
{¶ 37} The temporary restraint of an individual, such as that required of individuals present at the scene during the execution of a search warrant, does not invoke the "full panoply of Fourth Amendment protections * * * for no actual arrest has occurred."State v. Schultz (1985),
{¶ 38} On appeal, the court of appeals held that police were not required to administer Miranda warnings before they asked the defendant about the coat, because he was only in an intermediate level of detention similar to an on-the-scene investigation in a Terry stop. Schultz at 135, citing Terryv. Ohio (1968),
{¶ 39} Here, as in Schultz, Remy was not under arrest at the time he answered the officers' questions regarding who had a key to the bedroom and to whom the bedroom belonged. Rather, he was under temporary restraint during the execution of the search warrant, just as the other individuals present at the scene were restrained but not in custody. The testimony from the motion to suppress hearing indicates that Remy was in the building when he answered the questions about the bedroom. He was not told he was under arrest until after officers discovered drugs in his bedroom. Additionally, the testimony indicates that he was handcuffed after he was removed from the building.1 Therefore, he was not in custody at the time he gave officers the key and admitted ownership of the bedroom. Accordingly, we find that the trial court did not err in ruling that Remy's statements about the bedroom were not obtained in violation of his right toMiranda warnings.
{¶ 41} Crim.R. 16(B)(1) requires the prosecuting attorney, upon motion of the defendant, to provide the defendant with copies of any written or recorded statements of the defendant (Crim.R. 16(B)(1)(a)(i)), written summaries of any oral statement made by a defendant (Crim.R. 16(B)(1)(a)(ii)), and the records of any witness whom the State intends to call at trial (Crim.R. 16(B)(1)(e)). The court, in its discretion, may prohibit the State from introducing material not disclosed in accordance with Crim.R. 16, or may make any other order it deems just under the circumstances. Crim.R. 16(E)(3); State v. Bidinost,
{¶ 42} First, Remy contends that the State should have provided him with a written summary of the statements he made to law enforcement officers. The State must provide written summaries of statements given by defendants and co-defendants upon the written request of the defendant. Crim.R. 16; State v.DeLeon (1991),
{¶ 43} Even assuming the State did commit a discovery violation by failing to provide Remy with a written summary of his statement, Remy waived the error by failing to bring the violation to the court's attention when he filed his motion to compel discovery. See Crim.R. 16(E)(3). Additionally, Remy had knowledge of the statement prior to trial because the statement was revealed in testimony during the hearing on the motion to suppress. Remy did not point to a place in the trial record where his alleged statements to police surprised him. Thus, Remy suffered no prejudice as a result of the alleged violation. Therefore, we cannot find that the trial court abused its discretion in refusing to suppress his statements based upon a discovery violation.
{¶ 44} Next, with regard to Remy's contention that the State failed to provide a videotape of the search, the State contends that it is not aware of any videotape made of the search of Paul's Motor Sales. Although the inventory of the search lists a videotape, it is not clear whether this refers to a videotape made during the search or simply a videotape seized during the search. Remy does not specify how he believes information contained in a videotape of the search, if one exists, would benefit him. Thus, he has not alleged prejudice. Additionally, Remy does not specify what sanction he believes the trial court should have imposed as a result of the State's failure to provide him with this videotape. Because the record indicates no willful violation of Crim.R. 16(B)(1)(a)(i) and no prejudice suffered as a result of the alleged violation, we cannot say that the trial court abused its discretion in dealing with the alleged discovery violation.
{¶ 45} Finally, Remy contends that the State failed to provide him with the felony criminal record of Hank Spencer, an individual present during the search, in violation of Crim.R. 16(B)(1)(e). Crim.R. 16(B)(1)(e) requires the State to provide the felony records of witnesses whom the State intends to call at trial. Here, although the State listed Hank Spencer as a potential witness, the State did not call Hank Spencer as a witness at trial. Moreover, the record reflects that Remy did not suffer any prejudice as a result of the State's failure to provide him with information concerning Hank Spencer's felony record. Specifically, the record reflects that Remy was aware of Hank Spencer's felony record at trial, as he attempted to introduce a certified copy of a journal entry containing the conviction of an individual named Hank Spencer. Therefore, he did not demonstrate that the trial court abused its discretion in dealing with the State's discovery violation.
{¶ 47} In sum, we disagree with Remy's contention that the trial court committed prejudicial error by not suppressing his statements to law enforcement officers or statements and information that was not provided to him in discovery. Accordingly, we overrule Remy's fourth assignment of error.
{¶ 49} The indictment alleged that Remy possessed crack-cocaine in violation of R.C.
{¶ 50} In determining the weight of cocaine, "the content or purity of cocaine is immaterial so long as there is any amount
of cocaine in the compound or substance." State v. Brown
(1995),
{¶ 51} The State's expert witness, forensic scientist Keith Taggart of BCI, testified that "crack-cocaine" is the street terminology for cocaine in its base form. He also testified that baking soda is frequently used to convert cocaine from the hydrochloride form to the base form. Additionally, he testified that he does not analyze rocks of crack-cocaine for purity, and that he has no way of telling the weight of baking soda as opposed to the weight of cocaine in a given amount of crack-cocaine.
{¶ 52} Taggart testified that the substance under the mattress of Remy's bed had a weight of 11.02 grams and contained cocaine base. He testified that the substance found in the suspended ceiling of Remy's bedroom weighed 18.56 grams and contained cocaine base. Additionally, the substance found in the dresser at the foot of Remy's bed weighed .94 grams and contained cocaine base, the substance found in Remy's bathrobe weighed .37 grams and contained cocaine base, and the substance found in Remy's bed weighed .49 grams and contained cocaine base.
{¶ 53} Remy does not specify which of these samples he believes contained powder cocaine as opposed to crack-cocaine or identify where in the record the State introduced evidence of cocaine that was not crack-cocaine. Taggart's testimony constitutes some competent credible evidence that the substances under Remy's mattress and in his bed, his ceiling, his dresser, and bathrobe were crack-cocaine rather than another type of cocaine. Thus, even if we limit the State's proof to cocaine specifically identified as crack-cocaine, Taggart's testimony establishes possession of greater than twenty-five grams. Additionally, pursuant to R.C.
{¶ 55} In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial granted. State v. Garrow (1995),
{¶ 56} Here, Remy was charged with and convicted of possession of cocaine. "Possession" means having "control over a thing or substance." R.C.
{¶ 57} Here, the drugs were found in the ceiling of the bedroom at Paul's Motor Sales. As we determined when we considered Remy's fourth assignment of error, Remy's statements to police that he had the key to the bedroom and that the bedroom was his were properly admitted into evidence. Remy unlocked the bedroom. The facts that the bedroom was locked, that Remy had the key, and that Remy stated that the bedroom was his, constitute substantial evidence that Remy exercised dominion and control over the drugs found in the bedroom ceiling. Based on this evidence, we cannot say that the jury clearly lost its way and created a manifest miscarriage of justice in concluding that Remy possessed the drugs. Accordingly, we overrule Remy's third assignment of error.
{¶ 59} R.C.
{¶ 60} "Minimum sentences are favored for first-time imprisonment." State v. Edmonson (1999),
{¶ 61} Here, the trial court found at the sentencing hearing "that the very minimum sentence would demean the seriousness of the offense." Additionally, the trial court specifically stated in its judgment entry that "the shortest prison term will demean the seriousness of the Defendant's conduct." Thus, the court indicated on the record that it considered the minimum sentence before deciding to depart from it. Therefore, the sentence is not contrary to law. Accordingly, we overrule Remy's fifth assignment of error.
{¶ 63} To determine whether comments made by a prosecutor during closing argument amount to misconduct warranting a mistrial, we must examine "whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the accused." State v. Smith (1984),
{¶ 64} Prosecutors are afforded a certain degree of latitude in their closing arguments. Keenan at 409. In evaluating a closing argument, we do not take the prosecutor's comments out of context or give them their most damaging meaning. State v. Hill
(1996),
{¶ 65} The transcript of the State's closing argument reveals that the State did not make an improper or misleading statement with regard to the ownership of Paul's Motor Sales. Rather, the State argued that the evidence proved beyond a reasonable doubt that Remy controlled the business. Specifically, the State listed the facts that Remy owns the property that the business sits on, that the business is named "Paul's Motor Sales," that Remy's first name is Paul, and that the business name does not include a reference to Remy's daughter. Because the record contains evidence of each of these facts, we find that the State's remark was not improper.
{¶ 66} Likewise, the State's reference to Remy possessing both powder and crack-cocaine is supported by evidence. The record contains testimony that crack-cocaine is made from powder cocaine, and hence evidence of both is relevant to prove that Remy possessed crack-cocaine. Additionally, Remy did not object to the evidence that he possessed powder cocaine when it was presented in testimony or during closing arguments. Because the evidence the State referred to in closing arguments is contained in the record, is relevant, and was not objected to by Remy, the comment was not improper.
{¶ 67} Remy's objection to the State's characterization of the 18.65 gram rock of crack-cocaine as a "boulder" is also without merit. Because Remy did not object to the characterization, we review it only for plain error. The record contains testimony describing the 18.65 gram piece of cocaine as a "rock" and as "large." The remark was improper to the extent that the comment conveyed the prosecutors' opinion, but only marginally so, since the opinion was based on evidence presented at trial. See State v. Clemons (1998),
{¶ 68} Finally, Remy contends that the State's argument that Remy did not present any evidence of an alternative theory by which cocaine could have ended up in Remy's ceiling deprived him of his right against self-incrimination. Specifically, in closing argument the State noted that Remy did not present any testimony from a mechanical or industrial engineer to support a theory that someone could have gotten through the rafters to stash the cocaine in the ceiling of Remy's bedroom without Remy's knowledge. The trial court sustained Remy's objection to this comment and gave a curative instruction. However, "[t]he comment that a witness other than the accused did not testify is not improper, State v. D'Ambrosio (1993),
{¶ 69} Accordingly, we overrule Remy's seventh assignment of error.
{¶ 71} The record reflects that the court did not rule that Remy could not introduce evidence of Hank Spencer's prior convictions. Rather, the court merely ruled that Remy could only introduce certified copies of the journal entries containing Hank Spencer's convictions if he could also introduce evidence that the Hank Spencer named in the journal entries was the same individual as the Hank Spencer present at the scene. Remy notes that the trial judge in this case was the same judge who entered Hank Spencer's convictions. However, this fact is inapposite; the trial judge is not a witness, and, in any event, stated on the record that he was not present at the scene of the search and did not know if the two Hank Spencers were one and the same.
{¶ 72} Because the trial court ruled that Remy could introduce the judgment entries containing Hank Spencer's convictions if he first laid a foundation for their relevancy, Remy's assignment of error is without merit. The trial court did not prevent Remy from introducing evidence of Hank Spencer's convictions. Accordingly, we overrule Remy's eighth assignment of error.
{¶ 74} Evid.R. 615 governs the trial court's duty to separate witnesses. Evid.R. 615(B) provides, "[t]his rule does not authorize exclusion of * * * an officer or employee of a party which is not a natural person designated as its representative by its attorney * * *." It is well settled that "[i]n a criminal prosecution, a representative of the law enforcement agency handling the prosecution — even if the representative is a witness — may assist the prosecutor during trial and may remain in the courtroom although a separation of witnesses has been ordered." State v. Fuller (Sept. 26, 1997), Hamilton App. No. C-960753, citing State v. Turner (Feb. 27, 1997), Allen App. No. 1-96-27; United States v. Wells (C.A. 6, 1971),
{¶ 75} In this case, the State designated Detective Lowe as its representative. Therefore, the State was entitled to have Detective Lowe remain in the courtroom despite the separation of witnesses order. Remy has not demonstrated that the trial court acted arbitrarily, unreasonably or unconscionably in permitting Detective Lowe to remain in the courtroom and testify last in the State's case. Although the trial court could have ordered Detective Lowe to testify earlier, we cannot say that the trial court abused its discretion in failing to do so. Accordingly, we overrule Remy's ninth assignment of error.
{¶ 77} Any decision on a motion for a new trial is within the discretion of the trial court. State v. Scheibel (1990),
{¶ 78} Crim.R. 33(A)(6) provides that newly discovered evidence may provide grounds for a new trial when the evidence is material to the defense and "the defendant could not with reasonable diligence have discovered and produced [the evidence] at the trial." Crim.R. 33(A)(6) goes on to provide, "[w]hen 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."
{¶ 79} The procedure outlined in Crim.R. 33 allows for a non-oral hearing on opposing affidavits, and does not require the court to hear live-witness testimony. State v. Perotti, Scioto App. No. 99CA2672, 2001-Ohio-2677. The trial court's decision whether to hold a hearing will not be disturbed on appeal absent an abuse of discretion. State v. Smith (1986),
{¶ 80} Crim.R. 33(A)(6) plainly provides that newly discovered evidence is evidence "which the defendant could not with reasonable diligence have discovered and produced at the trial." Here, Remy attached an undated letter purportedly written by Tonya Sue Perry to his motion. Remy relies upon the letter as a confession by Perry that the cocaine in his ceiling belonged to her and another woman, Dorothy Spencer. However, the letter also states that Perry and Spencer waited for Remy to come home before stashing the cocaine in his ceiling, and that he provided them with the plastic bag to hold the cocaine. Additionally, the letter states that Perry and Spencer informed Remy that the cocaine stashed in the ceiling was theirs approximately four weeks after the November 6, 2001 raid. Thus, even if the letter is to be believed, it does not contain evidence that was discovered after the trial. Remy did not subpoena Perry or Spencer to appear as witnesses at trial. Thus, Remy did not exercise diligence to attempt to present evidence at trial that the cocaine belonged to Perry and Spencer.
{¶ 81} Because Remy's motion did not reveal any newly discovered evidence that Remy could not, with adequate diligence, have discovered prior to trial and presented at trial, Remy did not state adequate grounds for a new trial. Thus, we cannot say that the trial court abused its discretion by denying Remy's motion without a hearing. Accordingly, we overrule Remy's tenth assignment of error.
Judgment Affirmed.
Abele, J. and Grey, J.: Concur in Judgment and Opinion.
Lawrence Grey, Retired Judge of the Ohio Court of Appeals, sitting by assignment.
