State v. UnsworthState v. Unsworth
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Juliа R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Chuckie T. Unsworth, pro se.
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PIETRYKOWSKI, J.
{¶ 1} Appellant, Chuckie T. Unsworth, appeals from a decision by the Lucas County Court of Common Pleas denying appellant‘s motion for new trial on the basis of newly discovered evidence. For the reasons that follow, we affirm the judgment of the trial court.
{¶ 3} Evidence at the trial demonstrated the following facts. On October 11, 2002, an intrudеr entered the home of the victim (who was an 81-year old woman), raped her vaginally and also forced her to perform fellatio and anilingus on him. The victim identified appеllant as the perpetrator at trial. Moreover, a left ring-fingerprint was recovered from the window that the intruder had used to enter the home. The fingerprint was subsequently determinеd to be a 14-point match with appellant‘s ring-finger.
{¶ 4} A rape kit was performed, and DNA in the victim‘s underwear was determined to be consistent with appellant‘s DNA. The DNA from the underwear wаs found to be inconsistent with all non-Caucasian males and inconsistent with 99.5 percent of all Caucasian males. Appellant is a Caucasian male.
{¶ 5} Following the jury‘s findings of guilt, appellant was sentenced to three consecutive ten-year terms of imprisonment.
{¶ 6} On appeal, this court affirmed the jury‘s verdict and the trial court‘s judgment. See State v. Unsworth (Sept. 2, 2005), 6th Dist. Nos. L-03-1189, L-04-1165. The Supreme Court of Ohio denied further review. State v. Unsworth, 108 Ohio St.3d 1416, 2006-Ohio-179. Appellant filed a motion to reopen his appeal, but that motion was also denied.
{¶ 8} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRORED [sic] IN DENYING THE APPELLANT‘S ‘MOTION FOR LEAVE TO FILE MOTION FOR NEW TRIAL’ WHEN THE EVIDENCE WAS ACCEPTED BY THE TRIAL COURT THAT APPELLANT WAS UNAVOIDABLY PREVENTED FROM DISCOVERING THE NEW EVIDENCE ON WHICH THE MOTION WAS BASED WITHIN THE TIME LIMITS SET FORTH IN CRIM.R. 33(B).”
{¶ 9} The decision to grant or deny a motion for a new trial on the basis of newly discovered evidence is within the sound disсretion of the trial court, and that decision will not be disturbed on appeal in the absence of an abuse of discretion. State v. Hawkins (1993), 66 Ohio St.3d 339, 350. The term “abuse of discretion” connotes morе than an error of law or judgment; rather, it implies that the court‘s attitude was unreasonable, arbitrary or capricious. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 10}
{¶ 11} “(A) Grounds.
{¶ 12} “A new trial may be granted on motion of the defendant for аny of the following causes affecting materially his substantial rights:
{¶ 13} “* * *”
{¶ 15} “(B) Motion for new trial; form, time.
{¶ 16} “* * *”
{¶ 17} “Motions for new trial on account of newly discovered evidence shall be filed within one hundred twenty days after the day upоn which the verdict was rendered, or the decision of the court where the trial by jury has been waived. If it is made to appear by clear and convincing proof that the defеndant was unavoidably prevented from the discovery of the evidence upon which he must rely, such motion shall be filed within seven days from an order of the court finding that he was unavoidаbly prevented from discovering the evidence within the one hundred twenty day period.”
{¶ 18} Under
{¶ 19} In thе instant case, it is undisputed that the new database, available through the National Center for Forensic Science (“NCFS“), became available in January of 2008. However, aрpellant did not file his motion for leave to file until March 25, 2009, more than a year later. Appellant has offered no explanation whatsoever for the greater-than-one-year lapse of time between the date that the new “evidence” became available and the filing of his motion for leave. Under the circumstances, we find that thе trial court did not abuse its discretion in denying appellant‘s motion.
{¶ 20} Even if we were to assume that appellant‘s motion was timely filed, we would nevertheless find that it was properly dеnied. A new trial should not be granted on the basis of newly discovered evidence, unless the new evidence: (1) discloses a strong probability that it will change the result if a new trial is granted; (2) hаs 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. Hawkins, 66 Ohio St.3d at 350, citing State v. Petro (1947), 148 Ohio St. 505, syllabus.
{¶ 21} In the instant case, appellant‘s “new evidence” purported to show that the NCFS database included individuals of Hispanic and African American descent as possible contributors of the DNA from the victim‘s underwear. Specifically, the NCFS
{¶ 22} Although appellant correctly noted in his motion that the relevant haplotype is also observed in African American and Hispanic populations in the NCFS database, it is undisputed that hе does not belong to those populations. In addition, the number of individuals in those populations carrying the relevant haplotype is minuscule -- with an occurrence of оne in 2,398 African Americans and one in 2,260 Hispanics.
{¶ 23} Most compellingly, the overall NCFS results -- which show that one in 1,739 individuals carries the relevant haplotype -- do not favor appellant, whether compared to the state‘s expert‘s total for Caucasians alone, which was 1 in 517 Caucasians, or to the overall total of the individuals included in the state‘s еxpert‘s database, which included a total of 1,297 individuals (comprised of 535 African Americans, 517 Caucasians, and 245 Hispanics).
{¶ 24} So too, the NCFS database shows that the presence of the relevant haplotype in Caucasian males is even more rare than it was revealed to be in the state‘s expert‘s database, with the NCFS database showing an occurrence of one in 1,261 individuals and the state‘s expert‘s database showing an occurrence of one in 517 individuals.
{¶ 26} Viewed in a light most favorable to appellant, the new “еvidence” merely shows: (1) that a new database exists, which contains a larger population than did the state‘s expert‘s database for comparisons of the relevаnt haplotype to determine the frequency with which it occurs in the population; and (2) the haplotype that was detected in the DNA extracted from the victim‘s underwear is sometimes present in individuals of Hispanic or African American descent. At best, such evidence had the potential only to impeach the state‘s expert‘s testimony that the рrofile was not observed in its database of individuals of Hispanic or African American descent. As such, the “evidence” is insufficient to support a motion for a new trial. See State v. Hawkins, supra. Appellant‘s sole assignment of error is not well-taken.
{¶ 27} Fоr the foregoing reasons, the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
JUDGMENT AFFIRMED.
C.A. Nos. L-09-1205, L-09-1206
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J. _______________________________
Thomas J. Osowik, P.J. JUDGE CONCUR.
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JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Dеcisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.