STATE OF OHIO v. LANCE VIDEEN
Appellate Case No. 27479
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
November 17, 2017
2017-Ohio-8608
WELBAUM, J.
Trial Court Case No. 2011-CR-3378 (Criminal Appeal from Common Pleas Court)
LANCE VIDEEN, 4831 Northcliff Drive, Apartment 6, Dayton, Ohio 45431 Defendant-Appellant
{¶ 1} Defendant-appellant, Lance Videen, appeals from the judgment of the Montgomery County Court of Common Pleas overruling his
Facts and Course of Proceedings
{¶ 2} On December 7, 2011, Videen was indicted on two counts of illegal use of a minor in nudity-oriented material or performance in violation of
{¶ 3} After pleading not guilty to the charges, on February 12, 2012, Videen filed a motion to suppress the images discovered on his computer and the statements he made to Sergeant Jones during a video-recorded interview at the police station. Following a hearing on the matter, the trial court overruled Videen’s motion to suppress. The trial court declined to suppress Videen’s statements because it found that Videen had been properly advised of his Miranda rights and that he knowingly and voluntarily waived them. The trial court declined to suppress the incriminating images discovered on Videen’s computer because the court found that Videen had voluntarily consented to the search that yielded the images.
{¶ 4} On April 12, 2012, the case proceeded to a bench trial. At trial, the State presented the testimony of Sergeant Jones and Jones’s recorded interview with Videen. Videen did not testify or present any evidence in his defense. Although Videen was
{¶ 5} Videen filed an appeal from his conviction and sentence, which we decided on April 5, 2013. See State v. Videen, 2013-Ohio-1364, 990 N.E.2d 173 (2d Dist.). In that appeal, we held the trial court correctly concluded that Videen voluntarily consented to the search of his computer. Id. at ¶ 19-26. However, we reversed and vacated his conviction for one of the illegal-use counts on grounds that the nude image on which that count was based did not amount to a “lewd exhibition” as is required for convictions under
{¶ 6} Three and half years later, on October 25, 2016, Videen filed a “Motion for Order Vacating Prior Conviction Alternatively, Motion for New Trial.” The trial court reviewed the motion as a
{¶ 7} On February 23, 2017, Videen filed a notice of appeal from the trial court’s decision overruling his motion for new trial. Following the submission of his appellant brief, Videen filed a motion with this court requesting oral argument. We granted Videen’s motion and scheduled oral argument for October 24, 2017. At oral argument, Videen, having discharged his retained appellate counsel, represented himself pro se. During his pro se oral argument, Videen referred to matters and alleged facts that are outside the record of this case. Because an appellate court may only consider matters contained in the record, we are not permitted to consider the matters and facts raised by Videen during his oral argument. See State v. Simpson, 2d Dist. Montgomery No. 25202, 2013-Ohio-1695, ¶ 19 (” ‘[T]his court is unable to consider any evidence not considered by the trial court.’ It is axiomatic that an appellate court will not consider matters outside of the appellate record.“), quoting Dayton v. Turic, 2d Dist. Montgomery No. 20149, 2005-Ohio-131, ¶ 8, quoting Alex-Bell Oxford Limited Partnership v. Woods, 2d Dist. Montgomery No. 16038, 1998 WL 289028, * 4 (June 5, 1998). (Other citation omitted.) Moreover, this appeal is restricted to the procedural issues raised by the parties in their respective appellate briefs.
Assignment of Error
{¶ 8} In support of his appeal, Videen raised a single assignment of error for this court’s review. Under his assignment of error, Videen contends that the trial court’s decision overruling his “Motion for Order Vacating Prior Conviction Alternatively, Motion for New Trial” without a hearing constitutes an abuse of discretion. We disagree.
{¶ 9} As a preliminary matter, we note that Videen does not claim the trial court
{¶ 10}
A new trial, after a verdict of conviction, may be granted on the application of the defendant for any of the following causes affecting materially his substantial rights:
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(F) When new evidence is discovered material to the defendant, which he 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 of said 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 under all the circumstances of the case is reasonable. The prosecuting attorney may produce affidavits or other evidence to impeach the affidavits of such witnesses.
{¶ 11} Similarly,
A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights:
* * *
(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} Pursuant to
{¶ 13} In order to file a motion for new trial after the expiration of the time periods specified in
{¶ 14} ” ‘[A] party is unavoidably prevented from filing a motion for new trial if the party had no knowledge of the existence of the ground supporting the motion for new trial and could not have learned of the existence of that ground within the time prescribed for filing the motion for new trial in the exercise of reasonable diligence.’ ” Parker at ¶ 16, quoting State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984). “[A] defendant fails to demonstrate that he or she was unavoidably prevented from discovering new evidence when he would have discovered that information earlier had he or she exercised due diligence and some effort.” State v. Lenoir, 2d Dist. Montgomery No. 26846, 2016-Ohio-4981, ¶ 24, citing State v. Metcalf, 2d Dist. Montgomery No. 26101, 2015-Ohio-3507, ¶ 11, citing Warwick.
{¶ 15} “A trial court’s decision on a
{¶ 16} In overruling Videen’s motion for new trial, the trial court found that Videen’s
{¶ 17} Having reviewed the record, we find no abuse of discretion in the trial court’s decision. The record indicates that Videen filed his motion for new trial on October 25, 2016, four and a half years after the trial court issued its guilty decision on April 18, 2012. Accordingly, it is clear that Videen filed his motion well beyond the time limitations provided for in
{¶ 18} In addition to its untimeliness, Videen’s motion for new trial is not based on any newly discovered evidence. In the motion, Videen argued that there may be a video or audio recording of police officers questioning him in the back of a cruiser, and that he never received a copy of the purported recording for trial. However, because Videen admitted that the existence of any such recording is unknown, it cannot be said that he discovered any new evidence for trial. Moreover, if any such recording did exist, there was nothing preventing Videen from attempting to locate it prior to trial or within 120 days of being found guilty.
{¶ 19} Videen raised several other issues in his motion for new trial that the trial court found irrelevant to the pertinent decisions it made, those decisions being that the search of Videen’s computer was constitutional and that his possession of the images in question violated
{¶ 20} We further find that the issues raised by Videen are barred by res judicata, as he could have raised them in his prior direct appeal. See State v. Russell, 10th Dist. Franklin No. 04AP-1149, 2005-Ohio-4063, ¶ 6-7 (affirming denial of appellant’s motion for new trial, without a hearing, based on res judicata); State v. Butler, 2d Dist. Clark No. 2717, 1991 WL 116659, *1 (June 26, 1991) (finding res judicata barred appellant from raising issues in his motion for new trial that could have been raised in his direct appeal).
{¶ 21} Given that we find no abuse of discretion in the trial court’s decision overruling Videen’s motion for new trial, Videen’s sole assignment of error is overruled.
Conclusion
{¶ 22} Having overruled Videen’s sole assignment of error, the judgment of the trial court is affirmed.
DONOVAN, J. and FROELICH, J., concur.
Mathias H. Heck, Jr.
Sarah E. Hutnik
Lance Videen
Hon. Erik Blaine
Charles W. Slicer, III