author: FROELICH, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Larry D. HUDSON, Defendant-Appellant
    No. 27561
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered February 2, 2018
    MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402, Attorney for Plaintiff-Appellee
    BROCK SCHOENLEIN, Atty. Reg. No. 0084707, 371 West First Street, Dayton, Ohio 45402, Attorney for Defendant-Appellant
   FROELICH, J.

{¶ 1} Larry D. Hudson was convicted after a bench trial in the Montgomery County Court of Common Pleas of burglary in violation of R.C. 2911.12(A)(2), a felony of the second degree. Hudson appeals from his conviction, claiming that the trial court erred in denying his Crim.R. 29 motion and that his conviction was against the manifest weight of the evidence.

{¶ 2} For the following reasons, we agree with Hudson that there was insufficient evidence to support his conviction for burglary, in violation of R.C. 2911.12(A)(2), and that his conviction for that offense was likewise against the manifest weight of the evidence. However, we find that the evidence does support a conviction for the lesser-included offense of trespassing in a habitation when a person is present or likely to be present, in violation of R.C. 2911.12(B), a felony of the fourth degree. Hudson's conviction for burglary will be vacated, and the matter will be remanded for the trial court to modify its judgment to indicate that Hudson was convicted of trespassing in a habitation when a person is present or likely to be present and for sentencing on that offense.

I. Evidence at Trial and Procedural History

{¶ 3} At trial, the State presented the testimony of Nancy Lucy, the owner of the property at issue, and four Dayton police officers. The defense presented no witnesses. The evidence at trial established the following facts.

{¶ 4} In July 2016, Lucy purchased the property located at 5 Victor Avenue in Dayton. The property has two apartments: a lower apartment (Apt. 5A) and an upper apartment (Apt. 5B); each apartment has a separate entrance. Between July 2016 and December 2, 2016, Lucy lived in the upstairs apartment while tenants occupied the lower apartment. The tenants were evicted and moved out on December 2, 2016; the gas and electricity in the lower apartment were turned off when the tenants left. The lower apartment had water access throughout December 2016.

{¶ 5} Lucy began to have work performed on the lower apartment, such as plumbing and furnace repairs. After Christmas, she began to move from the upper to the lower apartment. The gas and electricity were reinstated on January 3. In early January, the lower apartment was still in disrepair. The front living room had only a television on a night table and a couch.

{¶ 6} Lucy testified that she continues to own the property and to reside in Apartment 5A. The upper apartment is vacant. The only person other than Lucy with authorized access to the property is a maintenance person. Lucy testified that Hudson did not have permission to be in her residence.

{¶ 7} At approximately 7:00 a.m. on January 8, 2017, Lucy left for work, locking the doors, but not the deadbolt. Lucy testified that, when she left, there was no damage to the window to the left of the front door. One window in the lower apartment had pre-existing damage; the glass portion of a window in the room to the right of the front door had previously been damaged by tenants.

{¶ 8} Lucy returned home at approximately 8:40 p.m., but she could not get in because the deadbolt was locked. Lucy believed someone was in the apartment, and she went to a friend's home for an hour. While there, she recalled that she had a key to the deadbolt, and she returned to her property. Lucy went through the front door into the front living room. She yelled, "Anybody in here?" Lucy heard snoring from a man on the couch. Realizing that she had not woken the man, Lucy exited the building, went to her car, and called the police.

{¶ 9} The police arrived within a few minutes, and Lucy gave them permission to enter her residence. Officers David Denlinger and Joe Drumm went into the lower apartment and located Hudson asleep on the couch in the front room. Initially, Officer Denlinger loudly called to Hudson, but he did not respond. The officers then shook Hudson until he began to wake. Hudson was placed in handcuffs and taken outside. Denlinger testified that he searched Hudson, who was wearing multiple layers of clothing. Denlinger found a BB gun, 49 rounds of ammunition, a screwdriver (slightly bent), and three silver pipes of various lengths and widths with burnt ends; at trial, Denlinger and Drumm identified these pipes as crack pipes. Hudson did not identify himself to the officers, but another officer, Officer Jeremy Stewart, recognized Hudson from a prior encounter and provided his name to the other officers.

{¶ 10} After the police left, Lucy did a walk-through of the house. She noticed that two windows were broken and the screen of one of the windows at the rear of the house was torn.

{¶ 11} While in jail, Hudson spoke to an individual over the telephone. During the recorded conversation, Hudson stated that he was in a "bando" (abandoned property)

with a pistol, drugs, and criminal tools when he was arrested.

{¶ 12} The trial court conducted a bench trial on March 30, 2017. At the conclusion of the State's case, Hudson made a Crim.R. 29 motion for a judgment of acquittal, which the trial court denied. After the parties provided closing arguments and the court took a recess, the court orally found Hudson guilty of burglary, in violation of R.C. 2911.12(A)(2). The court filed a written verdict on April 4, 2017. The trial court subsequently sentenced Hudson to two years in prison.

{¶ 13} Hudson appeals from his conviction, claiming that the trial court erred in denying his Crim.R. 29 motion and that his conviction was against the manifest weight of the evidence.

II. Standards of Review

{¶ 14} When reviewing the denial of a Crim.R. 29(A) motion, an appellate court applies the same standard as is used to review a claim based on the sufficiency of the evidence. State v. Page , 2d Dist. Montgomery No. 26670, 2017-Ohio-568, 2017 WL 656805, ¶ 7, citing State v. Sheppeard , 2d Dist. Clark No. 2012 CA 27, 2013-Ohio-812, 2013 WL 871485, ¶ 51. "A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law." State v. Wilson , 2d Dist. Montgomery No. 22581, 2009-Ohio-525, 2009 WL 282079, ¶ 10, citing State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The relevant inquiry is whether any rational finder of fact, after viewing the evidence in a light most favorable to the State, could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Dennis , 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal unless "reasonable minds could not reach the conclusion reached by the trier-of-fact." Id. In reviewing the trial court denial of a Crim.R. 29(A) motion at the end of the State's case, we consider only the evidence then available to the trial court. Sheppeard at ¶ 51.

{¶ 15} In contrast, when reviewing an argument challenging the weight of the evidence, an appellate court reviews the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether, in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

III. Hudson's Burglary Conviction

{¶ 16} R.C. 2911.12(A)(2) provides:

(A) No person, by force, stealth, or deception, shall do any of the following:
* * *
(2) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure that is a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present, with purpose to commit in the habitation any criminal offense[.]

"Trespass" is defined under R.C. 2911.21(A). Pursuant to that statute: "No person, without privilege to do so, shall * * * [k]nowingly enter or remain on the land or premises of another." R.C. 2911.21(A)(1). "Force" is defined as "any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing."

R.C. 2901.01(A)(1). "Force" is satisfied by "any effort physically exerted." State v. Johnson , 2d Dist. Montgomery No. 26961, 2017-Ohio-5498, 2017 WL 2730301, ¶ 21, quoting State v. Snyder , 192 Ohio App.3d 55, 2011-Ohio-175, 947 N.E.2d 1281, ¶ 18 (9th Dist.).

{¶ 17} On appeal, Hudson claims that there was insufficient evidence that he entered the lower apartment with the purpose to commit a criminal offense. He further claims that he did not act with the necessary mental state with respect to the "likely to be present" element of the offense. Hudson asserts that he reasonably believed that the apartment was abandoned.

{¶ 18} We discussed the "likely to be present" element of burglary in State v. Frock , 2d Dist. Clark No. 2004 CA 76, 2006-Ohio-1254, 2006 WL 677715, as follows:

"Although the term 'likely' connotes something more than a mere possibility, it also connotes something less than a probability or reasonable certainty. A person is likely to be present when a consideration of all the circumstances would seem to justify a logical expectation that a person could be present." State v. Green (1984), 18 Ohio App.3d 69, 72, 480 N.E.2d 1128. In determining whether persons were present or likely to be present under R.C. 2911.12(A)(2), "the defendant's knowledge concerning habitation is not material. The issue is not whether the burglar subjectively believed that persons were likely to be there, but whether it was objectively likely." State v. Brown (Apr. 28, 2000), Hamilton App. No. C-980907 [2000 WL 492054]. Merely showing that people dwelled in the residence is insufficient; the state must adduce specific evidence that the people were present or likely to be present at the time of the burglary. State v. Fowler (1983), 4 Ohio St.3d 16, 18, 445 N.E.2d 1119.
The supreme court has held that the "likely to be present" element is satisfied where the structure is a permanent dwelling house which is regularly inhabited, the occupants were in and out of the house on the day in question, and the occupants were temporarily absent when the burglary occurred. State v. Kilby (1977), 50 Ohio St.2d 21, 23, 361 N.E.2d 1336. See, also, Fowler , 4 Ohio St.3d at 19, 445 N.E.2d 1119 ; * * *. On the other hand, courts have found insufficient evidence that the occupants were likely to be present when they were absent for an extended period, such as a vacation, and no one else was regularly checking on the house. * * * Similarly, if the occupants of a house are gone for the entire work day, they are not "likely to be present" during the day.

Frock at ¶ 20-21.

{¶ 19} In this case, Lucy testified that she began moving from the upper apartment to the lower apartment in December 2016, and that she was residing in the lower apartment on January 8, 2017, the day of the burglary. Lucy worked during the day as a provider of home healthcare, and she returned to her residence around 8:45 p.m. At that time, Lucy found indications that a person was in her apartment, namely that the deadbolt to the front door was locked. When she entered the apartment an hour later, she found Hudson asleep on her couch in the front living room. The State's evidence was sufficient to establish that Hudson trespassed in Lucy's residence at a time when a person (other than Hudson or an accomplice) was present and/or was likely to be present. The fact that Hudson may have subjectively and perhaps reasonably believed, based on the condition of the property, that the lower apartment was abandoned was of no legal import.

{¶ 20} Although Hudson does not specifically challenge the trial court's implicit finding that he trespassed by "force, stealth, or deception," we note that the State's evidence was sufficient to prove that Hudson entered Lucy's residence by force and without permission. Lucy testified that only she and a maintenance man were authorized to enter her apartment; Hudson did not have permission to enter. She further testified that the window to the left of the front door was intact when she left for work on January 8, 2017, but was broken when she came home. Hudson was found with a bent screwdriver, and Hudson stated in the recorded jail telephone call that he "had criminal tools on me" when he was arrested. Officer Drumm testified that officers might "find criminal tools like a screwdriver" when a person had to pry his or her way into a building.

{¶ 21} Hudson further argues that the State's evidence was insufficient to establish that he trespassed in Lucy's residence "with purpose to commit in the habitation any criminal offense." He claims that he entered the apartment solely to sleep. The State responds that the trial court could have reasonably found that Hudson trespassed in Lucy's residence with the purpose to commit possession of illegal drugs, possession of criminal tools, and/or unauthorized use of property.

{¶ 22} To establish the "any criminal offense" prong of the burglary statute, the State is required to show that the defendant "invaded the dwelling for the purpose of committing a crime or that he formed that intent during the trespass." See State v. Gardner , 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 33 (addressing the "any criminal offense" prong of aggravated burglary, R.C. 2911.11(A)(2) ), citing State v. Fontes , 87 Ohio St.3d 527, 721 N.E.2d 1037 (2000), syllabus. "The purpose with which a person does an act is determined from the manner in which it is done, the means or weapon used, and all the other facts and circumstances in evidence." (Citation omitted.) State v. Johnson , 11th Dist. Lake No. 2006-L-259, 2007-Ohio-5783, 2007 WL 3133735, ¶ 40 ; see R.C. 2901.22(A) (defining purposeful mens rea).

{¶ 23} First, the State claims that there was sufficient evidence that Hudson "entered Nancy Lucy's residence with the intent to possess and use illegal drugs while inside." In support of this argument, the State notes that (1) Hudson was found carrying three objects that Officers Denlinger and Drumm identified as crack pipes, (2) Hudson stated in the recorded jail phone call that he "had drugs on me" when he was "caught," and (3) "Officer Drumm testified that Hudson's deep sleep was consistent with someone who was 'coming down' from a crack cocaine high."

{¶ 24} We disagree with the State's characterization of Officer Drumm's testimony. Officer Drumm testified that he could not tell whether Hudson was "honestly asleep" or whether he was "playing possum." Drumm did not hear any snoring. On redirect examination, the State asked Officer Drumm if he had experience with people who had been high on meth, heroin, or cocaine; Drumm responded affirmatively. The prosecutor then asked, "To your knowledge, what happens to a person after they come down off their high of-from meth or crack?" Drum responded, "They crash. Usually fall asleep. Yeah. They crash." (Tr. 111.) The prosecutor did not ask and did not elicit any testimony that the officers had observed signs that Hudson had used drugs in Lucy's residence, nor did the officers testify that they believed that Hudson was in a drug-induced sleep when they attempted to wake him. The State's argument that Hudson was in a drug-induced sleep is speculation.

{¶ 25} The State's evidence that Hudson trespassed in Lucy's residence for the purpose of possessing and using crack consisted solely of evidence that Hudson possessed three crack pipes and that he told a female acquaintance during the recorded jail phone call that he "had drugs on me" when he was "caught." However, the officers did not locate drugs on Hudson when he was arrested; he simply had crack pipes. In our view, the fact that Hudson possessed crack pipes, without more, is insufficient to establish that he had a purpose to possess and use illegal drugs inside the residence.

{¶ 26} Second, the State claims that Hudson trespassed on Lucy's property for the purpose of possessing criminal tools. As stated above, there was evidence that Hudson possessed criminal tools (the screwdriver), and he admitted as much in the recorded jail telephone call. There is no evidence, however, that Hudson trespassed on Lucy's apartment for the purpose of possessing the screwdriver (and the crack pipes). And, having brought the screwdriver and crack pipes into the residence with him, the evidence does not support a conclusion that he formed the intention to possess those items once he was inside the apartment.

{¶ 27} Finally, the State claims that Hudson entered Lucy's apartment with the purpose to commit unlawful use of property (i.e., Lucy's couch), in violation of R.C. 2913.04. R.C. 2913.04(A) provides: "No person shall knowingly use or operate the property of another without the consent of the owner or person authorized to give consent." A violation of R.C. 2913.04(A) is generally a fourth-degree misdemeanor, but may be a more serious offense if certain circumstances exist. See R.C. 2913.04(F). R.C. 2913.04 contains two affirmative defenses: (1) "At the time of the alleged offense, the actor, though mistaken, reasonably believed that the actor was authorized to use or operate the property[,]" and (2) "At the time of the alleged offense, the actor reasonably believed that the owner or person empowered to give consent would authorize the actor to use or operate the property." R.C. 2913.04(E), incorporating by reference the affirmative defenses in R.C. 2913.03(C).

{¶ 28} R.C. 2913.04 was enacted along with a companion statute, R.C. 2913.03, which addresses the unauthorized use of motor vehicles. Both statutes are located within the theft and fraud provisions of the Ohio Revised Code. The Legislative Service Commission notes regarding the two statutes illuminate the purpose behind their creation. The Legislative Service Commission wrote with respect to R.C. 2913.03 :

This section defines two degrees of the offense commonly known as "joyriding." For some years auto theft has been an increasing problem, and in this type of offense it is often difficult to prove that the offender intended to permanently deprive the owner of the car. The offense of joyriding was designed to alleviate the enforcement problem this creates and the gist of the offense is simply an unauthorized use of a vehicle. It is unnecessary to prove an intent to permanently deprive the owner.
In addition to automobile joyriding, the section covers joyriding in planes, motorcycles, motor boats, and other motor-propelled vehicles.
Also, the offense is much more serious if the vehicle is either taken out of the state, or is kept by the offender for more than two days. In the latter context, the offender must actually keep possession of the vehicle for more than two days. It is not sufficient if he abandons the vehicle and it is not recovered within that time. The rationale for making joyriding more serious under these circumstances is, first, because taking the stolen vehicle out of the state or keeping it for more than 48 hours enormously complicates enforcement problems and, second, because either of such acts may suggest that the offender's purpose was more than just a short joyride.
Two affirmative defenses to a charge under the section are spelled out, both dealing with a bona fide belief on the actor's part that he had the owner's express or implied consent to use the vehicle.

{¶ 29} The Legislative Service Commission further stated as to R.C. 2913.04 :

This section is similar to new section 2913.03 of the Revised Code, except that it deals with the unauthorized use of property other than vehicles, and the penalty remains the same regardless of where the offender takes the property or how long he keeps it. The same defenses given in section 2913.03 apply to this section.

{¶ 30} Hudson entered what he thought was a "bando" and passed out on the couch, without Lucy's permission. In the procrustean logic of legal analysis, he was "using" the couch, much as he used the floor or the carpet or even the heat that he sought in the room by trespassing in the structure, and he did not have the occupant's permission to do any of the these things. However, such an interpretation of the statute results in an overinclusion of prohibited behaviors and thus the criminalization of ordinary everyday actions. See Solan, Law Language, and Lenity , 40 Wm. & Mary L.Rev. 57 (1998). Moreover, such an interpretation violates the rule of lenity and the spirit of the law and produces an unreasonable result. As stated by the United States Supreme Court:

It is a familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers. This has been often asserted, and the Reports are full of cases illustrating its application. This is not the substitution of the will of the judge for that of the legislator; for frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act.

Holy Trinity Church v. United States , 143 U.S. 457, 459, 12 S.Ct. 511, 36 L.Ed. 226 (1892) ; see also, e.g., Public Citizen v. United States Dept. of Justice , 491 U.S. 440, 454, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) ("Where the literal reading of a statutory term would 'compel an odd result,' * * * we must search for other evidence of congressional intent to lend the term its proper scope.").

{¶ 31} Under the specific facts of this case, "the logic of words should yield to the logic of realities." Di Santo v. Pennsylvania , 273 U.S. 34, 43, 47 S.Ct. 267, 71 L.Ed. 524 (1927) (Brandeis, J., dissenting). Hudson's sleeping on the couch, without more, did not constitute the crime of unauthorized use of property.

{¶ 32} Moreover, the State's evidence, particularly Hudson's recorded jail phone call, indicated that Hudson believed, albeit mistakenly, that the property was abandoned, and that no permission was required to use the couch. Lucy testified that her tenants of the lower apartment moved out on December 2, at which time the gas and electricity were turned off. Lucy stated that her tenants returned to do "a little vandalism here and there" after that date. Lucy did not turn on the gas and electricity and begin to move into the lower apartment until a few days before the burglary. The sparse number of objects within the front living room (couch and a small television on a night table) and the relatively poor condition of the residence suggests that Hudson's belief that the lower apartment was abandoned may have been reasonable.

{¶ 33} In summary, we find that the State's evidence did not support Hudson's conviction for burglary in violation of R.C. 2911.12(A)(2), and his conviction was necessarily against the manifest weight of the evidence. Hudson's assignments of error are sustained.

{¶ 34} Nevertheless, the State's evidence was sufficient to convict Hudson of trespass in a habitation when a person is present or likely to be present, in violation of R.C. 2911.12(B), a felony of the fourth degree and a lesser included offense of burglary. We note that, during closing argument, the prosecutor stated that he believed the trial court was "duty bound to consider" the offense of trespass in a habitation when a person is present or likely to be present as a lesser included offense.

{¶ 35} "When a 'verdict is not sustained by sufficient evidence or is contrary to law; but if the evidence shows the defendant is not guilty of the degree of crime for which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict or finding accordingly, without granting or ordering a new trial.' " State v. Johnson , 188 Ohio App.3d 438, 2010-Ohio-3345, 935 N.E.2d 895, ¶ 22 (2d Dist.), quoting R.C. 2945.79(D). See also State v. Jackson , 4th Dist. Ross No. 12 CA 3309, 2012-Ohio-5619, 2012 WL 6018031 ; Rutledge v. United States , 517 U.S. 292, 306, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996).

IV. Conclusion

{¶ 36} Hudson's conviction for burglary, in violation of R.C. 2911.12(A)(2), will be vacated. The matter will be remanded for the trial court to modify its judgment to indicate that Hudson was convicted of trespass in a habitation when a person is present or likely to be present, in violation of R.C. 2911.12(B), and for sentencing on that offense.

TUCKER, J., concurs.

HALL, J., concurring in judgment only.

      When photographs of the property were taken in March 2017, two additional windows of the lower apartment had cardboard covering broken glass. However, Lucy testified that only one window had pre-existing damage on January 8, 2017.

      Lucy also testified that her furnace was missing from the basement. The State did not argue during closing argument that Hudson was responsible for the alleged theft of the furnace.

      " 'There is a constitutional requirement that a criminal defendant has notice of the offense(s) charged against him. Sixth Amendment to the United States Constitution; Section 10, Article I of the Ohio Constitution. However, * * * if the offense is a lesser included offense of the crime charged, notice is presumed.' " (Citation omitted.) State v. Patton , 2d Dist. Clark No. 2011 CA 94, 2013-Ohio-961, 2013 WL 1092412, ¶ 18, fn. 2, quoting State v. Ebert , 7th Dist. Mahoning No. 07-MA-196, 2008-Ohio-6596, 2008 WL 5228913, ¶ 11.


source: Caselaw Access Project

author: TIM McCORMACK, P.J.: SEAN C. GALLAGHER, J., CONCURRING:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Michael J. JENKINS, Defendant-Appellant
    No. 105226
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: February 8, 2018
    Timothy Young, Ohio Public Defender, Stephen P. Hardwick, Assistant Public Defender, Ohio Public Defender Office, 250 East Broad St., Suite 1400, Columbus, OH 43215, ATTORNEYS FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Daniel T. Van, Mary Weston, Assistant County Prosecutors, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, OH 44113, ATTORNEYS FOR APPELLEE
    BEFORE: McCormack, P.J., S. Gallagher, J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   TIM McCORMACK, P.J.:

{¶ 1} This is a delayed appeal based on preindictment delay. Defendant-appellant Michael Jenkins argues that his trial counsel was ineffective for not filing a motion to dismiss based on preindictment delay, that the trial court erred in not dismissing his case for preindictment delay, and in the alternative, that his conviction was supported by insufficient evidence. For the reasons that follow, we find merit to Jenkins's ineffective assistance of counsel claim and therefore reverse his conviction. Jenkins's additional assignments of error are therefore moot.

{¶ 2} In March 2016, Jenkins's codefendant, Oscar Dickerson, filed an identical appeal. This court ordered his conviction vacated. State v. Dickerson , 2016-Ohio-807, 60 N.E.3d 699 (8th Dist.) (" Dickerson I "). The Ohio Supreme Court remanded that case for application of State v. Jones , 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688. On remand, this court reached the same conclusion and vacated Dickerson's conviction, finding that his counsel was ineffective for failing to timely file a motion to dismiss based on preindictment delay. State v. Dickerson , 2017-Ohio-177, 2017 WL 241983 (" Dickerson II "). The state appealed that decision, and the Ohio Supreme Court declined to accept the case for review on October 11, 2017.

Factual and Procedural History

{¶ 3} The following facts were elicited at trial; for purposes of this appeal, the facts in this case do not materially differ from those in Dickerson II. The victim, J.R., testified that on July 2, 1994, the date of the incident, she was 16 years old. She had spent the day and evening with her boyfriend at his house, drinking and smoking marijuana. She left her boyfriend's house some time after midnight to walk home. Her boyfriend walked with her approximately halfway home. She proceeded to walk the remainder of the approximately 40-minute walk home alone.

{¶ 4} When she was approximately ten minutes from her house, three males in a car approached her and called out to her as the car drove past. The car "circled back" a few times, and J.R. testified that she "waved them off." J.R. started to cut across an open area to avoid the car, but the car pulled over near a library. J.R. testified that the car was driven by an older white male. Two younger black males were also in the car.

{¶ 5} One of the younger men got out of the car and approached J.R., offering her a ride home. She initially declined, but the young man persisted. At approximately 1:30 a.m., J.R. ultimately got into the car and told the men where she lived. J.R. testified that she was "not thinking" when she got in the car; she also testified that she accepted the ride because she was scared. The car proceeded to drive past her street. J.R. testified that she again told the driver where she lived as they passed her street, but she was ignored.

{¶ 6} The car eventually pulled into a hotel parking lot. The driver of the car, later identified as Jerry Polivka, got out of the car and proceeded to rent a hotel room. A receipt indicated that the room was rented at approximately 4:42 a.m. J.R. remained in the car with the other two men, the then-18-year-old defendant-appellant Michael Jenkins and his then-19-year-old codefendant Oscar Dickerson. J.R. testified that she did not know the men, but they identified themselves as "Mike" and "Oscar" or "O," respectively.

{¶ 7} When Polivka returned to the car, he drove to a back entrance of the hotel, where Dickerson and Jenkins walked J.R. into a hotel room. Polivka drove off, leaving J.R., Dickerson, and Jenkins at the hotel.

{¶ 8} J.R. testified that she tried to think of a way to get out of the situation. At one point, she asked to go outside to smoke a cigarette, hoping to escape, but one of the young men accompanied her. J.R. accepted crack cocaine from him to put on the end of her cigarette, which she testified that she smoked in an attempt to "numb" herself for what she believed "was going to happen." Dickerson and Jenkins proceeded to have vaginal intercourse with J.R. in the bathroom and bedroom of the hotel room.

{¶ 9} After both men had intercourse with J.R., she took a shower in the hotel bathroom. When she returned to the living area of the hotel room, Jenkins and Dickerson were asleep. J.R. took that opportunity to escape from the hotel room and go home.

{¶ 10} J.R. testified that when she got home, she tried to run upstairs to the bathroom, but her mother confronted her and demanded to know where she had been. J.R. then told her mother what had happened at the hotel room.

{¶ 11} J.R.'s mother testified that she was on the porch when J.R. returned home that morning and that J.R., who usually avoided her, sat down on the porch and looked like she wanted to talk. According to J.R.'s mother, J.R. then voluntarily told her what had happened. J.R.'s mother then called the police, who responded to the call at J.R.'s home. Subsequently, J.R. went to the hospital and was treated for sexual assault. The responding officers went to the hotel, where they found Dickerson and Jenkins asleep in the hotel room. Both men were arrested.

{¶ 12} The police obtained the receipt for the hotel room from a hotel clerk. The receipt identified Jerry Polivka as the individual who rented the room. Polivka was named as a suspect in the initial report, but was never contacted by the police in connection with this case.

{¶ 13} After J.R. left the hospital, she went with her mother to meet with a detective to discuss the incident. J.R. testified that the detective was "very rude" and shared her opinion of the incident, leaving J.R. feeling humiliated and prompting her to tell the detective to "forget it if she wasn't going to help." J.R.'s mother, however, testified that the detective was respectful.

{¶ 14} Following this meeting, the detective noted in the case file that no further investigation would take place.

{¶ 15} Several days later, J.R. was walking to her boyfriend's house when someone she recognized as "Mike" pulled up alongside her in a car. J.R. testified that Mike seemed angry and "forced" her to sign a note recanting her statements about the incident. J.R. signed the note and immediately reported this incident to the police. The police made an intimidation report but never followed up on the incident.

{¶ 16} J.R. testified that shortly after the July 2 events, she found out that she was pregnant and did not follow up with the police because she wanted to "get on with her life."

{¶ 17} On August 24, 2012, J.R.'s rape kit was submitted to BCI for DNA testing as part of the Sexual Assault Kit Testing Initiative. DNA analysis showed Dickerson's DNA on vaginal and rectal swabs and Jenkins's DNA on the victim's bathing suit bottoms. The detective assigned to the case discovered that Polivka was deceased.

{¶ 18} On May 15, 2014, Dickerson and Jenkins were each indicted on one count of rape for vaginal intercourse, one count of rape for fellatio, two corresponding counts of complicity to commit rape, and one count of kidnaping. Both defendants pleaded not guilty to all charges.

{¶ 19} On November 5, 2014, counsel for Dickerson filed a motion to dismiss based on preindictment delay. Jenkins's counsel did not file a similar motion at this or any other point in the proceedings.

{¶ 20} The docket in Dickerson's case does not indicate a ruling on Dickerson's motion to dismiss. In his appeal to this court, Dickerson characterized the motion as having been denied as untimely, and this court adopted that characterization. Dickerson II at ¶ 2. A review of the transcript shows that the trial court declined to consider the motion because it was untimely.

{¶ 21} A jury trial took place from November 12 to November 18, 2014. The jury found both defendants guilty of one count of rape for vaginal intercourse, one count of complicity for each other's rape conviction, and one count of kidnaping. The jury found both defendants not guilty of the rape and complicity charges as they related to fellatio.

{¶ 22} Jenkins was sentenced to eight years in prison. In December 2016, Jenkins filed a motion for delayed appeal. This court granted the motion, and this appeal follows. For the reasons that follow, we agree with Jenkins's first assignment of error and reverse his conviction.

Legal Analysis

{¶ 23} In Jenkins's first assignment of error, he argues that his case is materially indistinguishable from Dickerson II , in which this court held that "counsel was deficient for not timely filing a motion to dismiss and that there was a reasonable probability that it would have been granted had it been timely filed. Id. at ¶ 63.

{¶ 24} In Jenkins's second assignment of error, he argues that the trial court committed plain error when it failed to dismiss the case for preindictment delay. A trial court commits plain error under Crim.R. 52(B) where, " 'but for the error, the outcome of the trial clearly would have been otherwise.' " State v. Kibble , 2017-Ohio-12, 80 N.E.3d 1066, ¶ 21, quoting State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus. To support his assertion that this was plain error, Jenkins relies on the arguments from his first assignment of error.

{¶ 25} Jenkins's third assignment of error presents an alternative argument for our review, arguing that there was insufficient evidence to show the element of force or threat of force necessary for his conviction.

{¶ 26} Because the first two assignments of error both deal with preindictment delay, the state responded to them together. The state argues that it cannot be said that the failure to timely file a motion to dismiss was seriously flawed or deficient, as required by Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed2d 674 (1984), or that it resulted in a manifest miscarriage of justice, as required to show plain error.

{¶ 27} While preindictment delay is at the heart of the first two assignments of error, we decline to address them together because they require the application of different standards of review. Further, our agreement with Jenkins that his counsel was ineffective renders his second and third assignments of error moot.

{¶ 28} To establish ineffective assistance of counsel, a defendant must demonstrate that (1) counsel's performance at trial was seriously flawed and deficient and fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 687-688, 104 S.Ct. 2052.

{¶ 29} Here, Jenkins must demonstrate that his trial counsel performed deficiently by failing to raise the issue of preindictment delay, and that there was a reasonable probability of success had his counsel timely presented that issue to the trial court. State v. Mack , 101 Ohio St. 3d 397, 2004-Ohio-1526, 805 N.E.2d 1108, ¶ 31.

{¶ 30} Preindictment delay violates due process only when it is unjustifiable and causes actual prejudice. State v. Jones , 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 12. The Ohio Supreme Court has established a burden-shifting framework for analyzing preindictment delay due process claims. State v. Whiting , 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998). Under this framework, a defendant is first required to present evidence of actual prejudice; if actual prejudice is established, the burden shifts to the state to produce evidence of a justifiable reason for the delay. Id.

{¶ 31} The mere "possibility that memories will fade, witnesses will become inaccessible, or evidence will be lost is not sufficient to establish actual prejudice," because those are manifestations of the prejudice inherent in any delay.

State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 105, citing United States v. Marion , 404 U.S. 307, 326, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). However, the Supreme Court of Ohio has rejected the argument that "any claim of actual prejudice based on the death of a potential witness is too speculative to succeed unless the defendant can establish precisely what that witness would testify to and that the testimony would be directly exculpatory." State v. Jones , 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 27. Instead, courts are to undertake a case-by-case consideration of the relevance of the lost evidence and its purported effect on the defense. Id ., citing State v. Walls , 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52.

{¶ 32} "Actual prejudice exists when missing evidence or unavailable testimony, identified by the defendant and relevant to the defense, would minimize or eliminate the impact of the state's evidence and bolster the defense." Jones at ¶ 28, citing State v. Luck , 15 Ohio St.3d 150, 157-158, 472 N.E.2d 1097 (1984). The Luck court found that the grounds set forth by the defense in that case-deaths of witnesses, the fading of memories, and the loss of evidence-"when balanced against the other admissible evidence" established that the defendant suffered actual prejudice. Luck at 157-158, 472 N.E.2d 1097. Therefore, applying the Strickland standard to the preindictment delay issue in this case, we review to determine whether there was a reasonable probability that the court would have found actual prejudice had Jenkins's counsel filed a motion to dismiss based on preindictment delay.

{¶ 33} Jenkins relies on Dickerson's arguments with respect to establishing actual prejudice. This argument is based in large part on the unavailability of Jerry Polivka, who was deceased at the time of trial. Specifically, Jenkins argues that Polivka would have been able to fill in significant gaps in the state's timeline and testify as to what happened in the hours before the sexual conduct occurred.

{¶ 34} The state argues that this is insufficient to establish actual prejudice because even if Polivka had been available at trial, neither Jenkins nor Dickerson would have been able to elicit testimony from him because he would have been indicted and on trial for this incident as well. We are not persuaded by this argument. We echo the majority in Dickerson II in noting that unlike Dickerson or Jenkins, Polivka was never arrested or contacted in 1994 despite being named as a suspect in the initial police report, and even if he had been indicted in connection with this case, he likely would have been offered a plea deal in exchange for his testimony, similar to the plea deals rejected by both Jenkins and Dickerson. Dickerson II at ¶ 51-53.

{¶ 35} The state, citing the dissent in Dickerson II , notes that even if Polivka's testimony had been available, it would not have bolstered Jenkins's defense because Polivka could not have testified in any credible manner as to whether the victim consented to the sex while at the hotel. We do not disagree that Polivka could not have testified to this specific issue. Nevertheless, such testimony is not the only way in which Polivka's testimony could have bolstered Jenkins's defense. At trial, defense counsel repeatedly emphasized the fact that J.R. accepted drugs from the defendants, seemingly in an attempt to characterize the incident as a sex-for-drugs exchange.

{¶ 36} Further, Jenkins argues that because the victim got into the car with Polivka and the defendants at approximately 1:30 a.m. and the hotel receipt shows that the room was rented at 4:42 a.m., Polivka would have been able to fill in this significant gap in the timeline of the case. The victim was unable to remember what occurred during that time, and the state did not otherwise put forth any theory as to what else might have transpired before the group arrived at the hotel.

{¶ 37} Because of this, the record includes little to no information about what occurred in Polivka's car on the way to the motel; Polivka could have testified regarding the behavior of J.R., Jenkins, and Dickerson in the car. While we reiterate that such testimony would not have directly contradicted J.R.'s testimony that the later sexual conduct in the hotel room was not consensual, we nevertheless acknowledge that it could have bolstered Jenkins's theory of the case or cast doubt on J.R.'s testimony and credibility. In this way, Polivka's testimony regarding the incident very likely could have supported the defense's theory of the case.

{¶ 38} It is also worth noting that although the state argues that Polivka's unavailability cannot constitute actual prejudice because he would not have been able to testify as to whether J.R. consented in the hotel room, the state's theory of the case relied on the entirety of the evening to establish that the encounter with Jenkins was not consensual. At various points throughout the trial, prosecutors put forth a theory of the case that emphasized that Jenkins, Dickerson, and Polivka were acting together. Indeed, to the extent that the kidnapping offense was committed when J.R. got into Polivka's car, Polivka's testimony would have been critical.

{¶ 39} Because we agree with our prior decision in Dickerson II that the unavailability of Jerry Polivka constitutes actual prejudice, we move on to a discussion of whether the state has produced evidence of a justifiable reason for the delay in prosecution.

{¶ 40} The state argues that the nearly 20-year delay was justified because there was new evidence in the case. A delay in the commencement of prosecution by the state would be found unjustified under one of two conditions: (1) when it is done in an attempt to gain a tactical advantage over the defendant, or (2) when the state "through negligence or error in judgment, effectively ceases the active investigation of a case, but later decides to commence prosecution upon the same evidence that was available to it at the time that its active investigation was ceased." Luck at 158, 472 N.E.2d 1097, citing Marion , 404 U.S. at 326, 92 S.Ct. 455, 30 L.Ed.2d 468. This case satisfies the elements of the second condition.

{¶ 41} The state offers two reasons for the delay. First, it asserts that threats made to J.R. by Jenkins and Dickerson were the reason the case did not go forward in 1994. Second, they note that the Cleveland Police Department did not do DNA testing in 1994, so even if the case had gone to trial, it would have been without DNA evidence to corroborate J.R.'s testimony. This, according to the state, would have been "absurd." We are not persuaded by either reason.

{¶ 42} We echo the majority in Dickerson II in noting that within days after the alleged intimidation, J.R. contacted the police to report the incident. The record reflects that the state effectively closed the case shortly after J.R.'s meeting with a detective in 1994, before the alleged intimidation. Despite the state's argument here that it was unable to procure J.R.'s cooperation, the record reflects that no investigative steps were taken between J.R.'s meeting with a detective in 1994 and the rape kit testing in 2014.

{¶ 43} Additionally, although a witness testified at trial that the police department did not conduct DNA testing in 1994, this fact alone does not render the DNA evidence "new." DNA testing was available in 1994, and the state does not point to any reason the police department would have been unable to send the evidence to a third party for testing. Even if that were not a feasible option for the department at the time, the state's own witness testified that the department began doing DNA testing in 1999 or 2000. If this is accurate, the state would still be unable to justify the 14- to 15-year delay in prosecution.

{¶ 44} The state would have this court reject its earlier analysis established in Dickerson II and adopt the reasoning of the dissent in that case, despite making no attempt to distinguish this case from that one. Because we are bound by our own precedent, undisturbed by the Ohio Supreme Court, and because we agree with the rationale of Dickerson II as discussed above, we agree with Jenkins that his trial counsel was ineffective.

{¶ 45} Because we find that Jenkins's trial counsel was ineffective for failing to file a timely motion to dismiss based on preindictment delay, his conviction is reversed. Jenkins's second and third assignments of error are moot.

{¶ 46} This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion.

ANITA LASTER MAYS, J., CONCURS;

SEAN C. GALLAGHER, J., CONCURS (WITH SEPARATE OPINION ATTACHED)

SEAN C. GALLAGHER, J., CONCURRING:

{¶ 47} This case has a tortured procedural history that bears noting if only to prevent this issue from arising again. Jenkins failed to timely perfect an appeal as a matter of right under App.R. 4(A) following his conviction. Generally speaking, a defendant in a criminal case may file a motion for a delayed appeal in that situation. App.R. 5(A).

{¶ 48} In this case, however, it was the state that timely perfected an appeal on a question of law concerning the sentence imposed. In State v. Jenkins , 8th Dist. Cuyahoga No. 102462, 2015-Ohio-4583, 2015 WL 6796810, the appellate panel rejected the state's claim and affirmed the conviction and the sentence imposed. Under App.R. 3(C)(1), any appellee intending to change the judgment or order timely appealed must file a cross-appeal, which is the alternate method of obtaining an appeal as of right. App.R. 3(C). The cross-appeal is mandatory in those situations. Further, there is no exception to the ten-day deadline for the cross-appeal set forth in App.R. 4(B). App.R. 5(A), which authorizes a criminal defendant to file a delayed appeal in certain situations, expressly applies to appeals arising under App.R. 4(A). Had the drafters intended to create a right to file a delayed cross-appeal, that could have been achieved by expanding App.R. 5(A) to extend the deadline under App.R. 4(B).

{¶ 49} Jenkins's failure to file the cross-appeal precludes him from seeking a delayed cross-appeal to change the judgment of conviction. Jenkins's remedy was to file a motion to reopen his earlier appeal based on the ineffective assistance of appellate counsel who failed to preserve Jenkins's rights. App.R. 5(A) cannot be used to obtain a second appeal as of right. Rocky River v. Garnek , 8th Dist. Cuyahoga No. 99072, 2013-Ohio-1565, 2013 WL 1697494, ¶ 15.

{¶ 50} Having said that, in order to invoke this court's jurisdiction under App.R. 5(A), a defendant must concurrently file an appeal along with a motion for delayed appeal. State v. Parks , 8th Dist. Cuyahoga No. 65464, 1994 WL 197235, 1 (May 19, 1994) ; but see State v. Ronny , 8th Dist. Cuyahoga No. 102968, 2016-Ohio-3448, 2016 WL 3346546, ¶ 19 (appellate court may invoke its own jurisdiction over an untimely appeal by sua sponte granting a delayed appeal). Jenkins has done so in this case and thereby invoked our jurisdiction. Although a defendant must generally set forth the reason for failing to perfect an appeal as a matter of right, our resolution of the properly filed motion falls under this court's discretionary powers. State v. Adams , 9th Dist. Lorain No. 14CA010709, 2016-Ohio-336, 2016 WL 515433, ¶ 4 ; see, e.g., State v. Williams , 8th Dist. Cuyahoga No. 105025, 2017-Ohio-2662, 2017 WL 1743001.

{¶ 51} In this case, the state has not opposed Jenkins's motion for a delayed appeal, and accordingly, it has forfeited any arguments addressing the merits of that motion. Because we have jurisdiction over the matter and the state has not objected to the exercise of our discretion, there are no jurisdictional impediments to addressing the substantive matters at hand.

{¶ 52} On that point, I acknowledge that State v. Dickerson, 8th Dist. Cuyahoga No. 102461, 2017-Ohio-177, 2017 WL 241983 (" Dickerson II "), constrains our analysis; however, I agree with the rationale expressed by the dissent. As the defendant in Dickerson failed to demonstrate, Jenkins, too, is unable to articulate how the missing witness's testimony would have minimized or eliminated the impact of the state's case. Nonetheless, Dickerson II is controlling authority, and therefore, I reluctantly concur with the judgment.


author: LUPER SCHUSTER, J. HORTON, J., concurring in part and dissenting in part.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Lewis R. FOX, Defendant-Appellant.
    No. 17AP-295
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on February 8, 2018
    On brief: Ron O'Brien, Prosecuting Attorney, and Valerie B. Swanson, for appellee. Argued: Valerie B. Swanson.
    On brief: Todd W. Barstow, for appellant. Argued: Todd W. Barstow.
    DECISION
   LUPER SCHUSTER, J.

{¶ 1} Defendant-appellant, Lewis R. Fox, appeals from a judgment of the Franklin County Court of Common Pleas convicting him of two counts of felonious assault with firearm specifications. For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} By indictment filed November 13, 2015, plaintiff-appellee, State of Ohio, charged Fox with two counts of felonious assault in violation of R.C. 2903.11, with three-year firearm specifications. Fox pleaded not guilty and the matter proceeded to a jury trial in January 2017. As pertinent to this appeal, the following evidence was presented at trial.

{¶ 3} Mary Griffin testified as follows. During the evening of October 29, 2015, Mary Griffin and her grandmother, Mary Robinson, drove to Elaine Robinson's residence. When they arrived, Elaine opened the door and they all talked, with Mary Griffin and Mary Robinson standing just outside the front door. At some point, Fox came down from the upstairs of the residence, and "some words were exchanged" between Mary Griffin and Fox. (Tr. Vol. II at 160.) Fox called Mary Griffin and Mary Robinson "bitch[es]," and said if they "didn't move off his porch that he was going to shoot" them. (Tr. Vol. II at 160.) Fox was only a few feet away from Mary Griffin as they verbally confronted each other. Mary Griffin heard two or three gunshots and then realized she had been shot in her upper thigh. Mary Griffin did not see the firearm in Fox's hand prior to hearing the gunshots, but she observed Fox raise his arm when the shots were fired. Fox had pointed the gun at Mary Griffin's leg. Mary Griffin denied lunging at or touching Fox before the shooting. Mary Robinson was standing close behind Mary Griffin at the time of the shooting.

{¶ 4} Mary Robinson testified as follows. On the day of the shooting, she and Mary Griffin intended to pick up Elaine Robinson from her home because she was having problems with her boyfriend, Fox. After they arrived at Elaine's residence, Elaine told them that Fox would not let her go with them. Elaine called for Fox, and when he descended the stairs he was angry and possibly drunk. Fox said, "I'm sick of you bitches." (Tr. Vol. II at 222.) Mary Robinson saw Fox's right "hand coming up," and then she heard one or two gunshots. (Tr. Vol. II at 213.) Fox was pointing the weapon at Mary Griffin. Prior to the weapon being discharged, Mary Robinson did not see Mary Griffin touch Fox in any manner, but they were in close proximity to each other. Mary Robinson was within arm's reach of Mary Griffin when Fox fired the shots. Fox "didn't make any threats * * * He just shot [Mary Griffin]." (Tr. Vol. II at 236.) No bullet struck Mary Robinson.

{¶ 5} Elaine Robinson, who was called as a witness on Fox's behalf, testified as follows. Fox and Elaine were living together on the day of the shooting. On that day, Mary Griffin and Mary Robinson arrived at Elaine and Fox's residence upset because of statements Fox had made regarding Mary Robinson. Elaine called for Fox and told him that "Mary and them are at the door." (Tr. Vol. III at 350.) Fox came down the stairs and to the front door. Elaine did not see Fox carrying a weapon until she heard two gunshots. Fox did not point the weapon at anyone. When Fox fired the weapon, he was falling backward in response to Mary Griffin moving her hands toward Fox. Elaine characterized the shooting as being an accidental consequence of Fox stumbling backward. Elaine also testified that she told the police after the shooting that Fox shot downward at the porch to scare away Mary Griffin and Mary Robinson.

{¶ 6} Fox testified on his own behalf. At approximately 8:00 p.m. on the day of the shooting, Fox was upstairs at his residence when he heard loud voices downstairs. Fox heard someone screaming in anger and then heard Elaine call for him in a distressed manner. Because he was concerned that there was an intruder in the house, he grabbed a gun from his bedroom closet and brought it with him down the stairs. Holding the gun hidden behind his leg with his finger on the trigger, Fox stood in the doorway to the home and told Mary Griffin and Mary Robinson that they needed to leave. Mary Griffin then "lunged" at him like she was going to grab him. (Tr. Vol. III at 446.) Fox testified that he accidentally shot the firearm twice. Fox "stumbled back * * * and the firearm just discharged." (Tr. Vol. III at 446.) He "even [saw] the fire shoot out twice, shot twice." (Tr. Vol. III at 447.) He did not either raise the gun or shoot at the ground on purpose. After the weapon fired twice, Fox dropped it on a chair inside the house. When asked how the firearm discharged, Fox explained, "I guess I squeezed the trigger or something. You know how you're-an excited moment. I mean, it surprised me." (Tr. Vol. III at 457.)

{¶ 7} After the shooting, and based on information Fox provided, police recovered a five-shot revolver in the kitchen of Elaine and Fox's residence. Two of the rounds were spent, and the other three were unfired. Columbus Division of Police Detective Steven Miller, who interviewed Fox on the night of the shooting, testified that the gun recovered from the scene of the shooting was a "double-action" firearm. (Tr. Vol. III at 288.) For this type of firearm, the hammer must be pulled back with a squeeze or pull of the trigger in order to fire each bullet. The parties stipulated that Mary Griffin sustained an injury consistent with a single gunshot that entered her right thigh and exited her right buttock at a down to up trajectory.

{¶ 8} At the conclusion of trial, Fox's counsel requested that the trial court instruct the jury on the offense of negligent assault in addition to instructing the jury on the charged offense of felonious assault. The trial court declined to give the requested negligent assault instruction, and the jury found Fox guilty on both counts of felonious assault with firearm specifications. The trial court sentenced Fox to a total of ten years in prison. Fox timely appeals.

II. Assignments of Error

{¶ 9} Fox assigns the following errors for our review:

[1.] The trial court erred and deprived appellant of due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article One Section Ten of the Ohio Constitution by finding him guilty of felonious assault as those verdicts were not supported by sufficient evidence and was also against the weight of the evidence.
[2.] The trial court abused its discretion by not instructing the jury on the offense of negligent assault as a lesser included offense of felonious assault.

III. Discussion

A. First Assignment of Error-Sufficiency and Manifest Weight of the Evidence

{¶ 10} Fox's first assignment of error alleges that both of his felonious assault convictions were not supported by sufficient evidence and were against the manifest weight of the evidence. Whether there is legally sufficient evidence to sustain a verdict is a question of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Sufficiency is a test of adequacy. Id. The relevant inquiry for an appellate court is whether the evidence presented, when viewed in a light most favorable to the prosecution, would allow any rational trier of fact to find the essential elements of the crime proven beyond a reasonable doubt. State v. Mahone , 10th Dist. No. 12AP-545, 2014-Ohio-1251, 2014 WL 1350969, ¶ 38, citing State v. Tenace , 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.

{¶ 11} When presented with a manifest weight argument, an appellate court engages in a limited weighing of the evidence to determine whether sufficient competent, credible evidence supports the jury's verdict. State v. Salinas , 10th Dist. No. 09AP-1201, 2010-Ohio-4738, 2010 WL 3820597, ¶ 32, citing Thompkins at 387, 678 N.E.2d 541. "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony." Thompkins at 387, 678 N.E.2d 541, quoting Tibbs v. Florida , 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Determinations of credibility and weight of the testimony are primarily for the trier of fact. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, the jury may take note of the inconsistencies and resolve them accordingly, "believ[ing] all, part, or none of a witness's testimony."

State v. Raver , 10th Dist. No. 02AP-604, 2003-Ohio-958, 2003 WL 723225, ¶ 21, citing State v. Antill , 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

{¶ 12} An appellate court considering a manifest weight challenge "may not merely substitute its view for that of the trier of fact, but must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of 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 ordered." State v. Harris , 10th Dist. No. 13AP-770, 2014-Ohio-2501, 2014 WL 2583023, ¶ 22, citing Thompkins at 387, 678 N.E.2d 541. Appellate courts should reverse a conviction as being against the manifest weight of the evidence only in the most " 'exceptional case in which the evidence weighs heavily against the conviction.' " Thompkins at 387, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983).

{¶ 13} Fox was convicted of violating R.C. 2903.11, which states in pertinent part that "[n]o person shall knowingly do either of the following: (1) Cause serious physical harm to another * * * [or] (2) Cause or attempt to cause physical harm to another * * * by means of a deadly weapon." In challenging his convictions, Fox asserts that Mary Griffin lunged at him during their confrontation, causing him to fall backward over a piece of furniture and accidentally fire the weapon. He argues that he did not have the mental state required to be convicted of felonious assault.

{¶ 14} "A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature." R.C. 2901.22(B). When determining whether a defendant acted knowingly, his state of mind must be determined from the totality of the circumstances surrounding the alleged crime. State v. Ingram , 10th Dist. No. 11AP-1124, 2012-Ohio-4075, 2012 WL 3861220, ¶ 22. Culpable mental states are frequently demonstrated through circumstantial evidence. Id. Evidence that a defendant fired a gun in a person's direction is sufficient evidence that the defendant acted knowingly for the purpose of a felonious assault conviction. State v. Jefferson , 6th Dist. No. L-16-1182, 2017-Ohio-7272, 2017 WL 3575607, ¶ 17.

{¶ 15} The evidence presented at trial reasonably demonstrated that Fox acted knowingly in causing serious physical harm to Mary Griffin and in attempting to cause physical harm to Mary Robinson by means of a deadly weapon. According to Fox's testimony, the shooting was an accident. However, even if it was not Fox's intent to injure either Mary Griffin or Mary Robinson, he fired the weapon under circumstances where the risk of injury supported the inference that he acted knowingly. Mary Griffin testified that Fox threatened to shoot her and Mary Robinson if they did not move off his porch. Fox admitted at trial that he had his finger on the trigger when he confronted Mary Griffin and Mary Robinson at the door of his residence, demonstrating he was prepared and ready to fire the weapon. Testimony at trial also showed that the trigger of the gun that he fired twice had to be squeezed for each bullet discharge with a force sufficient to pull the hammer back. Further, Fox, Mary Griffin, and Mary Robinson were all in close proximity to each other when Fox fired the shots, and both Mary Griffin and Mary Robinson testified that Fox pointed the weapon in Mary Griffin's direction. One of the bullets struck Mary Griffin in the thigh. Additionally, testimony indicated that Mary Robinson was standing close behind Mary Griffin when Fox fired the two shots, and thus she was also in the line of fire. Considering this evidence, the jury reasonably disbelieved Fox's explanation that the shooting was an accident and convicted Fox of two counts of felonious assault.

{¶ 16} In sum, the evidence was sufficient to convict Fox of committing two counts of felonious assault, and Fox fails to show that the jury clearly lost its way and created a manifest miscarriage of justice. Because Fox's convictions were supported by sufficient evidence and were not against the manifest weight of the evidence, we overrule Fox's first assignment of error.

B. Second Assignment of Error-Jury Instruction on Negligent Assault

{¶ 17} Fox's second assignment of error alleges the trial court erred in not instructing the jury on the offense of negligent assault in regard to Count 1 of the indictment (Fox's alleged assault of Mary Griffin). This assignment of error lacks merit.

{¶ 18} This court reviews a trial court's refusal to instruct the jury on a lesser-included offense under the abuse of discretion standard. State v. Coleman-Muse , 10th Dist. No. 15AP-566, 2016-Ohio-5636, 2016 WL 4590151, ¶ 8 ; State v. Parnell , 10th Dist. No. 11AP-257, 2011-Ohio-6564, 2011 WL 6647293, ¶ 21-27. The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. State v. Clark , 71 Ohio St.3d 466, 470, 644 N.E.2d 331 (1994).

{¶ 19} R.C. 2903.14(A) states that "[n]o person shall negligently, by means of a deadly weapon * * * cause physical harm to another." This court has held that negligent assault, as defined by R.C. 2903.14, is a lesser-included offense of felonious assault, as defined by R.C. 2903.11(A)(2) (the provision prohibiting anyone from knowingly causing physical harm to another by means of a deadly weapon). State v. Anderson , 10th Dist. No. 06AP-174, 2006-Ohio-6152, 2006 WL 3365497, ¶ 38.

{¶ 20} An instruction on a lesser-included offense is required only when the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction on the lesser-included offense. Anderson at ¶ 39, citing State v. Carter , 89 Ohio St.3d 593, 600, 734 N.E.2d 345 (2000) ; see State v. Wine , 140 Ohio St.3d 409, 2014-Ohio-3948, 18 N.E.3d 1207, ¶ 34 (a trial court "must give an instruction on a lesser included offense if under any reasonable view of the evidence it is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense").

{¶ 21} In deciding whether to provide a lesser-included offense instruction, the trial court must consider both the state's evidence and the defense's evidence, and it must view the evidence in the light most favorable to the defendant. Anderson at ¶ 39 ; State v. Monroe , 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 37. An instruction on a lesser-included offense is not warranted, however, every time "some evidence" is presented to support the lesser offense. State v. Noor , 10th Dist. No. 13AP-165, 2014-Ohio-3397, 2014 WL 3827821, ¶ 84. The court must find "sufficient evidence" to allow a jury to reasonably reject the greater offense and find the defendant guilty on a lesser-included (or inferior degree) offense. Id. For example, "a defendant's own testimony that he did not intend to kill his victim does not entitle him to a lesser-included offense instruction 'if the evidence on whole does not reasonably support an acquittal on the murder offense and a conviction on a lesser offense.' " Id. , quoting State v. Willis , 8th Dist. No. 99735, 2014-Ohio-114, 2014 WL 197876, ¶ 51.

{¶ 22} Therefore, the issue presented here is whether the evidence at trial supported both an acquittal as to the charged offense of felonious assault and a conviction for negligent assault. A key distinction between the offenses of felonious assault and negligent assault is that felonious assault requires a knowing mental state, whereas a negligent mental state is sufficient to establish negligent assault. Anderson at ¶ 39. While a knowing mental state indicates awareness of the probability that one's conduct will cause a certain result or be of a certain nature, a "person acts negligently when, because of a substantial lapse from due care, the person fails to perceive or avoid a risk that the person's conduct may cause a certain result or may be of a certain nature." R.C. 2901.22(D).

{¶ 23} According to Fox's testimony, he fired the gun accidentally twice, and he argues on appeal that he lacked due care by bringing the gun with him down the stairs to confront the people at his door. Fox's trial testimony seemed to suggest his view that he lacked any culpable mental state regarding the firing of the weapon. However, having the trial court instruct the jury on the offense of negligent assault, in addition to the charged offense of felonious assault, would be inconsistent with an assertion of lack of any culpability. Rather, an acquittal would have been the appropriate outcome if in fact he lacked any culpable mental state. On appeal, Fox suggests that the discharge of the weapon was an accident caused by his negligence. He argues that his discharge of the weapon was the result of him negligently deciding to bring the weapon with him to confront Mary Griffin and Mary Robinson. Certainly, it is possible that a deviation from due care may cause an "accidental" shooting. See, e.g. , In re I.L.J.F. , 12th Dist. No. CA2014-12-258, 2015-Ohio-2823, 2015 WL 4207135. However, Fox's decision to bring the weapon with him to confront Mary Griffin and Mary Robinson at his front door was not the basis of the felonious assault charges and his subsequent conduct demonstrated a more culpable mental state. The assaults occurred when Fox fired the weapon twice when Mary Griffin and Mary Robinson were within a few feet of him. And the undisputed evidence further demonstrated that Fox had to pull the trigger each of the two times he engaged the firing mechanism with enough force to pull the hammer back. On these facts, in view of the undisputed evidence, no reasonable jury could have found that Fox's self-asserted deviation from due care-i.e., his decision to bring the firearm with him to confront Mary Griffin and Mary Robinson-proximately caused physical harm to Mary Griffin.

{¶ 24} Because the evidence at trial did not reasonably support both an acquittal for felonious assault and a conviction for negligent assault, the trial court did not abuse its discretion in declining to instruct the jury on negligent assault. Therefore, we overrule Fox's second assignment of error.

IV. Disposition

{¶ 25} Having overruled Fox's first and second assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

SADLER, J., concurs.

HORTON, J., concurs in part and dissents in part.

HORTON, J., concurring in part and dissenting in part.

{¶ 26} While I concur with the majority's decision to overrule the first assignment of error, I respectfully dissent from its conclusion that the second assignment of error is without merit.

{¶ 27} The majority correctly frames the issue as "whether the evidence at trial supported both an acquittal as to the charged offense of felonious assault and a conviction for negligent assault." (Majority Decision at ¶ 22.) However, the majority seems to suggest that a legal error would always occur if a lesser-included offense of negligent assault were ever given in a felonious assault case due to the "inconsistent" mens rea involved. (Majority Decision at ¶ 23.) I believe this to be an error in reasoning. Additionally, the majority appears to misinterpret Fox's testimony that he accidentally fired the weapon as an "assertion of lack of any culpability." (Majority Decision at ¶ 23.) To the contrary, accidental discharge of a weapon is entirely consistent with the mental state of negligence. For example, in In re I.L.J.F. , 12th Dist. No. CA2014-12-258, 2015-Ohio-2823, 2015 WL 4207135, an appellate court affirmed the delinquent adjudication of a juvenile for negligent assault under R.C. 2903.14 who accidentally shot a friend. He had brought the gun into a vehicle full of persons high on marijuana, held it while "dancing" and "shrugging his shoulders," and, when the driver took a turn too fast, the gun went off accidentally and shot his friend in the back. Id. at ¶ 33. There is no contradiction or inconsistency in arguing that an accidental act is negligent. If Fox had sought to deny any lack of culpability, his testimony would not allow for an accident based on a lack of due care.

{¶ 28} The majority has also too narrowly defined the temporal span when Fox's actions lacked due care, confining it to only the moment he pulled the trigger. In re I.L.J.F. also illustrates that a defendant's actions leading up to the discharge of the weapon can be probative of a negligent mental state, as the juvenile in that case should never have brought the gun into the car or held it up during the joyride. Here, Fox brought the weapon downstairs and held it in his non-dominant hand, which he had just had eight weeks of physical therapy on before the shooting due to nerve problems. (Tr. at 455.) This was a substantial lapse in due care from which a reasonable jury could conclude that Fox acted negligently.

{¶ 29} "The persuasiveness of the evidence regarding the lesser included offense is irrelevant. If under any reasonable view of the evidence it is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense, the instruction on the lesser included offense must be given." State v. Wilkins , 64 Ohio St.2d 382, 388, 415 N.E.2d 303 (1980). Taking a reasonable view of the evidence in this case, it would be possible for a jury to return a verdict finding Fox not guilty of felonious assault, and, instead, guilty of negligent assault. Thus, it was unreasonable for the trial court to refuse to instruct the jury on the lesser-included offense. Because in doing so the trial court abused its discretion, I would sustain the second assignment of error.

      Contrary to the dissent's assertion, we do not suggest that it never would be appropriate to give both a negligent assault charge and a felonious assault charge to a jury. We find that, under the facts of this case, it was not an abuse of discretion for the trial court not to instruct the jury on the offense of negligent assault.


author: HALL, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Robert L. MACKEY, Defendant-Appellant
    No. 2017-CA-42
    Court of Appeals of Ohio, Second District, Clark County.
    Rendered on February 9, 2018
    ANDREW P. PICKERING, Atty. Reg. No. 0068770, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45501, Attorney for Plaintiff-Appellee
    DEREK A. FARMER, Atty. Reg. No. 0071654, 106 Short Street, Suite 101, Gahanna, Ohio 43230, Attorney for Defendant-Appellant
   HALL, J.

{¶ 1} Robert L. Mackey appeals from the trial court's denial of his R.C. 2953.21 petition for post-conviction relief after an evidentiary hearing.

{¶ 2} Mackey advances two assignments of error. First, he contends the trial court erred in failing to find him unavoidably prevented from timely obtaining recantations from two witnesses who testified at his trial. Second, he claims the trial court erred in failing to strike an untimely post-hearing memorandum filed by the State.

{¶ 3} The record reflects that a jury convicted Mackey in September 1998 on one count of drug trafficking with a schoolyard specification, two counts of drug possession (one count for possession of over 100 grams of crack cocaine (described by the court at sentencing as 252 grams) with an MDO specification, and one count for possession of cocaine), one count of having a weapon while under disability, and one count of possessing criminal tools. He received a twenty-eight-year prison sentence to be served consecutive to a mandatory ten-year sentence from another drug case for which Mackey was out of custody on an appeal bond at the time of the events that led to the charges in this case. Upon a motion by Mackey, he was resentenced on February 8, 2011 and the 28 year sentence in this case was made concurrent to the other case for an aggregate sentence of 28 years in prison.

{¶ 4} More than 15 years after his conviction, in March 2014, Mackey filed a petition for post-conviction relief under R.C. 2953.21. Therein, he argued that he had been unavoidably prevented from securing affidavits from Cairo Buggs and Heather Peterson, two prosecution witnesses at his trial. In documentation accompanying the petition, Buggs and Peterson recanted their trial testimony incriminating Mackey. In his affidavit, Buggs claimed, contrary to his apparent trial testimony, that the drugs and guns police found in his apartment were his and not Robert Mackey's, that he was a confidential informant for the police and that he had made a deal with the police and did not want to do anything to break it. Peterson's "affidavit," a handwritten note with a notary seal, indicates, apparently contrary to her trial testimony, that Robert Mackey was not one of the two men who came into her apartment to sell her cocaine at the time of what appears to be a controlled buy set up by police with Peterson wearing a "wire." In April 2014, the trial court dismissed the petition, without a hearing, on the basis of untimeliness. Mackey appealed the dismissal, and this court reversed and remanded in State v. Mackey , 2d Dist. Clark No. 2014-CA-68, 2015-Ohio-899, 2015 WL 1125025, reasoning:

As previously discussed, Mackey submitted the affidavits of himself, Buggs, and Peterson. For his part, Mackey claims that he was unavoidably prevented from obtaining Buggs and Peterson's sworn statements because they were both heavily abusing drugs, and Buggs was serving a sentence in federal prison. Mackey also averred that Buggs and Peterson would simply not talk to him out of fear of the police. Mackey stated that Peterson would not recant her incriminating testimony because she had been threatened by authorities that her children would be taken away from her. Mackey's counsel was able to eventually contact Buggs while he was incarcerated and was able to procure a written statement in which Buggs recanted his testimony, but he was unable to get the document notarized while in prison. Mackey asserts that as soon as Buggs was released from prison, he came to Mackey's counsel's office and had his affidavit notarized. Lastly, Mackey avers that he and his family were simply unable to obtain the exculpatory testimony in Buggs' and Peterson's affidavits until they freely and voluntarily provided it.
Pursuant to R.C. 2953.23(A)(1)(a), we find that Mackey's affidavit established that he was entitled to a hearing in order to establish that he was "unavoidably prevented" from the discovery that Buggs and Peterson recanted their incriminating trial testimony against him. Accordingly, the trial court erred when it overruled Mackey's petition for post-conviction relief without a hearing.

Id. at ¶ 16-17.

{¶ 5} On remand, the trial court held an August 3, 2015 evidentiary hearing to determine whether Mackey had been unavoidably prevented from timely discovering Buggs' and Peterson's recantations. Mackey testified at the hearing along with Peterson, Buggs, and Mackey's mother, Maryam Muhammad. After considering their testimony, the trial court held that Mackey had failed to establish being unavoidably prevented from timely discovering the recantations at issue. It reasoned in part:

This is not a case of "new evidence recently discovered." The defendant's motion is based upon the allegation that the witnesses lied at his trial. He argues that he was unavoidably prevented from presenting the contradictory evidence showing that the witnesses lied at his trial until they were willing to come forward and admit the same. This gives rise to the credibility of the affidavits.
The affidavits recant the testimony of the witnesses given during the trial. They are statements of the witnesses given years after the trial on behalf of an individual who personally and/or through family has close connections with the witnesses. Further, as indicated in the Court's prior order, the records indicate that both of these witnesses have prior felony convictions for trafficking in drugs, which would be one factor in weighing their credibility.
Upon review of the record of this case, the Court finds that the petition has been filed out of the time period allowed pursuant to O.R.C. section 2953.21 and the defendant has failed to establish any exception set forth in O.R.C. section 2953.23 that applies to the factual history of this case.
It is therefore ORDERED that the Petition be DENIED.

(Doc. # 78 at 1-2).

{¶ 6} On appeal, Mackey challenges the trial court's finding that he was not unavoidably prevented from timely obtaining the recanting affidavits of Peterson and Buggs. Mackey asserts that his witnesses presented uncontroverted testimony explaining the efforts made to obtain the affidavits, the delay in obtaining them, and the circumstances that led Peterson and Buggs to provide them. With regard to the trial court's credibility determinations, Mackey contends the issue before the trial court was not whether the recantations were true or false. According to Mackey, the sole issue was whether he was unavoidably prevented from obtaining them in a timely manner. In any event, Mackey also challenges the trial court's credibility determinations on the merits. He argues that Peterson and Buggs did not present inconsistent or conflicting testimony. He also asserts that the witnesses' criminal records and the fact that he may have had personal or family connections with the witnesses does not necessarily render them non-credible, particularly where the State relied on the credibility of those same witnesses to obtain his conviction.

{¶ 7} Under then-existing R.C. 2953.21(A)(2), Mackey was required to file his petition within a 180-day time limit, which expired on or about May 2, 1999. See Mackey at ¶ 14. As relevant here, a court may not entertain a late petition unless "both of the following apply:" (1) that he "was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim" and (2) "[t]he petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty." R.C. 2953.23(A). These twin showings are jurisdictional requirements that must be met before a trial court may consider his otherwise-untimely petition for post-conviction relief. State v. Baker , 2d Dist. Montgomery No. 27596, 2017-Ohio-8602, 2017 WL 5513550, ¶ 12.

{¶ 8} As set forth above, the trial court ruled that Mackey's petition was untimely and that he had failed to make the showing necessary to avoid the time bar. We review this ruling for an abuse of discretion, which most often involves an "unreasonable" decision that is not supported by a sound reasoning process. State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58 ; Mackey at ¶ 11. In conducting our review, we must give deference to the trial court's post-evidentiary-hearing findings and credibility determinations. Id. at ¶ 47 ; State v. Hathaway , 2d Dist. Greene No. 2015-CA-11, 2015-Ohio-5299, 2015 WL 9260687, ¶ 21.

{¶ 9} With the foregoing standards in mind, we see no abuse of discretion in the trial court's ruling. As a threshold matter, we see no error in the trial court making credibility determinations. The central issue before the trial court was whether Mackey had been unavoidably prevented from timely obtaining the recantations. But resolution of that issue involved matters of credibility insofar as the witnesses were required to explain, either in their affidavits or at the hearing or at both times, the efforts made to obtain the recantations, the reasons for the delay, and the circumstances that led to the affidavits being provided. The trial court appears to have disbelieved the explanations, which it had discretion to do.

{¶ 10} We have repeatedly stated that evidence which recants testimony given at trial is "looked upon with the utmost suspicion." See , e.g. , State v. Rossi , 2d Dist., Montgomery No. 24740, 2012-Ohio-2545, 2012 WL 2061505, ¶ 17. This is "because, 'where a witness makes subsequent statements directly contradicting earlier testimony the witness either is lying now, was lying then, or lied both times.' " United States v. Earles, 983 F.Supp. 1236, 1248 (N.D.Iowa 1997), quoting United States v. Provost, 969 F.2d 617, 620 (8th Cir. 1992). We see no reason why the recanted testimony dichotomy cannot be part of the trial court's evaluation of the credibility of those witnesses. Additionally, we note that Buggs' affidavit states "I wanted to provide this information after Mr. Mackey was convicted years ago, but I never heard from his attorney," Buggs' Affidavit at ¶ 10, indicating a willingness to change his testimony years earlier. Peterson's "affidavit" does not explain when she was willing to change her story or why it took some 15 years. And at the hearing, although she testified that after the trial she wanted no involvement with the case, "I came to court, did what I had to do, and just tried to leave it alone; and I didn't want to have contact with anyone, no one." Hearing Transcript, August 3, 2015, at 25. But she has always lived in Springfield, except for a short stint in Marysville prison. Id. at 30. She has had contact with Mackey's family over the years and their children went to school together. Id. at 36. Referring to Mackey's family in the courtroom she said "these are just people that I see all the time." Id. at 37. When asked if there was any reason she couldn't be found she said "[n]o reason at all." Id. at 38.

{¶ 11} The trial court appears to have also disbelieved the substance of the recantations in the affidavits. Although the narrow issue before the trial court was whether Mackey had been unavoidably prevented from obtaining the affidavits from Peterson and Buggs, we see no reason why the trial court also could not consider their recantations to the extent as it reflects on the credibility of the hearing testimony. This is not a case where the trial court ruled based solely on paper affidavits. Rather, the trial court held an evidentiary hearing during which it heard Peterson and Buggs explain what led them to recant their trial testimony. On this record, we cannot say that the trial court's conclusion, that Mackey failed to prove that he was unavoidably prevented from obtaining the evidence on which he relies, was unreasonable.

{¶ 12} Finally, we note that Mackey could overcome the statutory time bar only by making the "unavoidably prevented" showing and by demonstrating "[b]y clear and convincing evidence that, but for constitutional error at trial" no reasonable factfinder would have found him guilty. R.C. 2953.23(A). We have recognized that "[e]vidence of perjury, without proof of knowledge on the part of the prosecution of that perjury, does not implicate constitutional rights and therefore, does not support a petition for post-conviction relief." State v. Parker , 2d Dist. Montgomery No. 25518, 2013-Ohio-3177, 2013 WL 3816690, ¶ 19, citing State v. Clark , 2d Dist. Montgomery No. 16463, 1998 WL 271853, *2 (May 29, 1998). Mackey's petition alleges that the "Constitutional Claim" is that "petitioner's convictions were obtained with materially untruthful and false testimony." Petition at 2. It does not assert that the prosecution was aware of the allegedly false testimony.

{¶ 13} In his appellate brief, Mackey asserts that "both witnesses, Peterson and Buggs, claim that the State knew or should have known that they were providing false information at trial." (Appellant's brief at 13). But none of the affidavits attached to Mackey's post-conviction relief petition support that assertion. To the contrary, Buggs asserted in his affidavit that he implicated Mackey because Buggs had made a deal with the police and "was afraid to do or say anything that would cause the police to be suspicious of [him] or to break the deal with [him]." (Buggs affidavit at paragraph 4, attached to Doc. # 61). Absolutely nothing in Buggs' affidavit suggests that the prosecutor knew his trial testimony was false. For her part, Peterson averred that she implicated Mackey because police told her she would go to jail and lose her children if she "didn't cooperate." (Peterson affidavit, attached to Doc. # 61). Nowhere in her affidavit did Peterson aver that the prosecutor knew her trial testimony implicating Mackey was false. The failure to include such an averment in either Buggs' or Peterson's affidavit was itself enough to justify denying Mackey's post-conviction relief petition, even if the trial court had concluded that Mackey was unavoidably prevented from earlier discovery of the recantations, without an evidentiary hearing. Parker at ¶ 19. For this additional reason, we cannot say the trial court erred in denying post-conviction relief under R.C. 2953.21. Accordingly, we overrule the first assignment of error.

{¶ 14} In his second assignment of error, Mackey claims the trial court erred in failing to strike an untimely post-hearing memorandum filed by the State.

{¶ 15} The record reflects that the trial court gave the parties until the end of the week to file post-hearing memos after the evidentiary hearing held on Monday, August 3, 2015. Mackey filed his memorandum on Friday, August 7, 2015. (Doc. # 75). The State did not file its memorandum until February 22, 2016. (Doc. # 76). On March 7, 2016, Mackey moved to strike the tardy memorandum. (Doc. # 77). In support, he noted that the State's filing was late and that it purported to cite a hearing transcript that Mackey had not obtained prior to filing his memorandum. The trial court subsequently denied Mackey's post-conviction relief petition more than a year later on April 4, 2017, without explicitly ruling on his motion to strike.

{¶ 16} Given the trial court's failure to address the motion to strike, it implicitly was overruled. State v. Matthews , 2d Dist. Greene No. 2015-CA-73, 2016-Ohio-5055, 2016 WL 3977506, ¶ 15. We review that decision for an abuse of discretion. Furnas v. Clay Twp. Trustees , 2d Dist. Montgomery No. 11CV6149, 2012-Ohio-5408, 2012 WL 5870596, ¶ 36-37. We see no abuse of discretion in the trial court's refusal to strike the State's memorandum. Other than the fact that the State filed it beyond the allowed time, Mackey's only complaint was that it purported to cite a hearing transcript, which Mackey did not have and which the State did not attach to its memorandum. But regardless of whether Mackey had access to the hearing transcript, the trial court itself had access to the testimony that it heard during the hearing. Likewise, we have access to a transcript of the evidentiary hearing on appeal. That being so, we fail to see how Mackey would have been any better off if the trial court had stricken the State's memorandum or how he was prejudiced by the failure to do so. At a minimum, the trial court did not abuse its discretion in refusing to strike the tardy memorandum. The second assignment of error is overruled.

{¶ 17} The judgment of the Clark County Common Pleas Court is affirmed.

DONOVAN, J. and TUCKER, J., concur.

      Appellant has not requested or caused the transcript of the trial to be part of the record and we are unable to analyze whether this "new" evidence would have made any difference in light of whatever other evidence was introduced at trial.

      Because Mackey has not demonstrated a constitutional basis for his petition, see ¶ 12-13 infra , his request should more properly have been made in the form of a motion for leave to file a motion for a new trial under Crim. R. 33. However, if treated as such, Mackey would not prevail under the more stringent analysis of that rule. A motion for leave to file a delayed motion for a new trial requires a defendant to prove "by clear and convincing proof [emphasis added] that he has been unavoidably prevented" from discovering the evidence, Crim R. 33(B), the motion must be filed within a reasonable time, State v. Tubbs, 2d Dist. Miami No. 2015-CA-14, 2016-Ohio-842, 2016 WL 853700, ¶¶ 16-17, and "[n]ewly discovered evidence must do more than merely impeach or contradict evidence at trial, and there must be a compelling reason to accept a recantation over the trial testimony of the witness." State v. Howard, 5th Dist. Stark No. 2014-CA-00136, 2015-Ohio-2053, 2015 WL 3421536, ¶ 13, citing Toledo v. Easterling , 26 Ohio App.3d 59, 62, 498 N.E.2d 198 (6th Dist. 1985).

      Although the credibility of the recantations themselves, was not the direct issue at the hearing, the trial court was in as good of a position as it ever will be in to make a credibility determination regarding the veracity of the recantations. Given that the trial court apparently disbelieved the affiants, nothing would be accomplished by declaring Mackey was unavoidably prevented from obtaining the affidavits sooner and remanding the case to the trial court for it again to reject the recantation documentation on its face, without an evidentiary hearing, on the merits as lacking in credibility.

      We note too that neither Buggs nor Peterson asserted during the post-conviction evidentiary hearing that the prosecutor knowingly presented perjured trial testimony from them. Mackey has attached apparent trial-transcript pages to his appellate brief in an effort to make this showing, but they do not establish that the prosecutor knowingly presented perjured testimony. In the referenced pages, Peterson merely testified that she agreed to work with police because they told her she could go to prison and lose custody of her children. At the time of the trafficking she was working with the police to make a controlled buy and was wearing a "wire". (Appellant's brief at Appendix B).