[Cite as State v. Taylor, 2019-Ohio-3128.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-19-1090

        Appellee                                 Trial Court No. CR0201003247

v.

Terrance Taylor                                  DECISION AND JUDGMENT

        Appellant                                Decided: August 2, 2019

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Terrance Taylor, pro se.

                                             *****

        SINGER, J.

        {¶ 1} In this accelerated appeal, Terrance Taylor (“appellant”) appeals from the

April 9, 2019 judgment of the Lucas County Court of Common Pleas, where his motion

for leave to file a motion for a new trial was denied. Finding no error, we affirm.
       {¶ 2} Appellant was convicted of murder in violation of R.C. 2903.02(B) and

2929.02, and aggravated robbery in violation of R.C. 2911.01. Both counts carried gun

specifications pursuant to R.C. 2941.145, and were originally merged as allied offenses

for sentencing purposes. The trial court improperly dismissed the aggravated robbery

count as a result of the merger, and we reversed and ordered that appellant be resentenced

to reinstate the robbery conviction. See State v. Taylor, 6th Dist. Lucas No. L-11-1202,

2013-Ohio-5182. More specifically, we held “that the trial court failed to follow the

proper procedure for merging allied offenses in its treatment of the merged offense of

aggravated robbery[.]” Id. at ¶ 53. The Supreme Court of Ohio denied review of our

judgment. See State v. Taylor, 139 Ohio St. 3d 1471, 2014-Ohio-3012, 11 N.E.3d 1193.

       {¶ 3} On remand, the trial court resentenced appellant to the same amount of

prison time without dismissing his aggravated robbery conviction. Specifically, the court

ordered appellant to serve an indefinite term of 15 years to life in prison on the murder

conviction, and an additional mandatory consecutive three-year term on the

accompanying firearm specification. We affirmed. See State v. Taylor, 6th Dist. Lucas

No. L-14-1188, 2015-Ohio-2946.

       {¶ 4} On September 12, 2018, more than three years after his resentencing,

appellant sought leave to file a motion for a new trial based on newly-discovered

evidence. In particular, appellant pointed to his sister’s July 20, 2018 affidavit and

argued it reflects that he did not have a fair trial because his substantial rights were

materially affected by her false testimony given at trial in June of 2011.




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       {¶ 5} After articulating the Crim.R. 33 standard and reviewing the content of the

affidavit, the trial court denied appellant’s motion for leave to request a new trial because

the affidavit did not offer any reason why the testimonial evidence presented could not be

obtained sooner. The judgment entry was journalized on April 9, 2019. Appellant now

timely appeals, setting forth the following assigned error:

              THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

       FAILED TO HOLD A HEARING ON APPELLANT’S MOTION FOR

       LEAVE TO FILE A MOTION FOR A NEW TRIAL WHEN THE FACTS

       AND CIRCUMSTANCES SUPPORT APPELLANT’S CLAIM THAT HE

       WAS UNAVOIDABLY PREVENTED FROM DISCOVERING THE

       EVIDENCE, IN DIRECT VIOLATION OF HIS FOURTH, SIXTH, AND

       FOURTEENTH AMENDMENTS TO THE UNITED STATES

       CONSTITUTION, AS WELL AS ARTICLE I OF THE OHIO

       CONSTITUTION.

       {¶ 6} Crim.R. 33, in relevant part, states:

              (A) Grounds. A new trial may be granted on motion of the

       defendant for any of the following causes affecting materially his

       substantial rights: * * * (6) [w]hen new evidence material to the defense is

       discovered, which the defendant could not with reasonable diligence have

       discovered and produced at the trial. When a motion for a new trial is made

       upon the ground of newly discovered evidence, the defendant must produce




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       at the hearing on the motion, in support thereof, the affidavits of the

       witnesses by whom such evidence is expected to be given, and if time is

       required by the defendant to procure such affidavits, the court may

       postpone the hearing of the motion for such length of time as is reasonable

       under all the circumstances of the case. The prosecuting attorney may

       produce affidavits or other evidence to impeach the affidavits of such

       witnesses.

       {¶ 7} We review the denial of leave to file a delayed motion for a new trial under

an abuse of discretion standard. See State v. Willis, 6th Dist. Lucas No. L-06-1244, 2007-

Ohio-3959, ¶ 12. An abuse of discretion connotes that the trial court’s attitude is

unreasonable, arbitrary, or unconscionable. See Blakemore v. Blakemore, 5 Ohio St. 3d
217, 219, 450 N.E.2d 1140 (1983).

       {¶ 8} In this case, we cannot say appellant has met his burden to show leave for a

new trial is warranted under Crim.R. 33, for two main reasons: first, the affidavit

submitted does not explain why the information could not have been obtained sooner;

and second, the affidavit does not present any testimonial evidence from which we can

infer appellant’s substantial rights were affected.

       {¶ 9} Regarding the time when motions for a new trial may be filed, Crim.R.

33(B) specifies that:

              Motions for new trial on account of newly discovered evidence shall

       be filed within one hundred twenty days after the day upon which the




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      verdict was rendered, or the decision of the court where trial by jury has

      been waived. If it is made to appear by clear and convincing proof that the

      defendant was unavoidably prevented from the discovery of the evidence

      upon which he must rely, such motion shall be filed within seven days from

      an order of the court finding that he was unavoidably prevented from

      discovering the evidence within the one hundred twenty day period.

      {¶ 10} “It has been squarely held that ‘the use of an affidavit signed outside of the

time limit under Crim.R. 33(B) that fails to offer any reason why it could not have been

obtained sooner is not adequate to show by clear and convincing proof that the evidence

could not have been obtained within the prescribed time period.’” See State v. Clyde, 6th

Dist. Erie No. E-18-016, 2019-Ohio-302, ¶ 18, citing State v. Peals, 6th Dist. Lucas No.

L-10-1035, 2010-Ohio-5893, ¶ 25; State v. Franklin, 7th Dist. Mahoning No. 09 MA 96,

2010-Ohio-4317, ¶ 20; State v. Sandoval, 6th Dist. Sandusky Nos. S-13-032, S-13-034,

2014-Ohio-4972, ¶ 16.

      {¶ 11} Here, the sister’s affidavit states as follows:

             I, Deirdre Taylor swear that the following is true:

             1. I, Deirdre Taylor state that on 12-13-10, the detective coerced me

      into saying what they wanted me to say.

             2. I, Deirdre Taylor state that on 12-13-10, I was under duress and

      held against my free will.




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                3. I, Deirdre Taylor state that there was prosecutorial misconduct

         because I was threatened that I will receive 30 years if I didn’t sign the plea

         bargain and turn state evidence against [appellant].

         {¶ 12} This affidavit only articulates vague allegations of police coercion, police-

imposed duress, wrongful detention, and prosecutorial misconduct, but provides no link

or explanation as to why the testimonial evidence presented in the affidavit could not

have been obtained sooner. We find the affidavit is insufficient to demonstrate the

evidence could not have been acquired within the 120 days required under Crim.R.

33(B).

         {¶ 13} Moreover, and after careful review of the sister’s June 20, 2011 testimony

at trial, we find the affidavit cannot stand to show that appellant’s substantial rights were

materially affected by any facts indicated. Crim.R. 33 “requires that a determination be

made as to whether a defendant’s substantial rights have been materially affected.” State

v. Johnston, 39 Ohio St. 3d 48, 59, 529 N.E.2d 898 (1988).

         {¶ 14} Here, appellant’s sister admitted that during her interview with police on

December 13, 2010, she lied and withheld the truth in an effort to protect appellant. For

example, the record specifically reveals that, at trial, she responded about her state of

mind during the interview as follows: “I can’t recall because [when] I was talking to

[police on December 13, 2010,] I was lying and I was trying to protect people [appellant]

and I didn’t want to tell the truth.” She also explained that, even when she tried to tell

police the truth during the interview, she forgot to provide details and that it was because




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she was “shook up” after witnessing the killing. We therefore cannot see how, even if

true, any police coercion, police-imposed duress, wrongful detention, or prosecutorial

misconduct stemming from her interview affected appellant’s case.

       {¶ 15} Also, numerous witnesses testified about appellant’s involvement in the

murder, and we cannot say that his sister’s testimony was the only evidence to support his

conviction. Thus, because we find the sister’s testimonial evidence produced from the

December 2010 interview and in open court was neither necessary to convict appellant

nor relied on by the trier of fact or court below in determining appellant’s verdict,

conviction, or sentence, we cannot say appellant’s substantial rights were materially

affected or that he should now be granted leave to file for a new trial.

       {¶ 16} Accordingly, we find the trial court did not abuse its discretion in denying

appellant’s motion, and the sole assignment of error is not well-taken.

                                        Conclusion

       {¶ 17} The April 9, 2019 judgment of the Lucas County Court of Common Pleas

is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                           Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




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                                                                     State v. Taylor
                                                                     C.A. No. L-19-1090




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Arlene Singer, J.
                                              _______________________________
Gene A. Zmuda, J.                                         JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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