[Cite as State v. Nuhfer,
2016-Ohio-1478.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-15-1013
Appellee Trial Court No. CR0200602652
v.
William D. Nuhfer, II DECISION AND JUDGMENT
Appellant Decided: April 8, 2016
…
Julia R. Bates, Lucas County Prosecuting Attorney, and
Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
W. Alex Smith, for appellant.
…
OSOWIK, J.
{¶ 1} This is an appeal from a December 30, 2014 judgment of the Lucas County
Court of Common Pleas, which denied appellant’s request for leave to file a Crim.R. 33
motion for a new trial in connection to a 2004 murder case, finding that appellant failed
to satisfy the requisite evidentiary burden to warrant the action.
{¶ 2} This case arises from a 2004 murder in Toledo. On March 14, 2007,
appellant was found guilty of one count of murder, in violation of R.C. 2903.02(A). On
June 30, 2014, appellant filed a request for leave to file a Crim.R. 33 motion for a new
trial. It was denied. For the reasons set forth below, this court affirms the judgment of
the trial court.
{¶ 3} Appellant, William Nuhfer, sets forth the following two assignments of
error:
1. The trial court erred when it ruled on the merits of a motion for
new trial rather than solely deciding if there was good cause to allow filing
of a Criminal Rule 33(A)(6) motion after 120 days since the verdict.
2. The trial court erred when it denied the defendant an evidentiary
hearing on the request for leave to file a motion for a new trial.
{¶ 4} The following undisputed facts are relevant to this appeal. On July 12,
2004, an employee of Hirzel Brothers Florists discovered the naked body of a woman in a
pile of sawdust at the rear of the business. The murder investigation determined that the
victim had been killed in the location where her body was discovered. Investigators
recovered the victim’s TARTA bus card, bus schedules, and her shorts at the crime scene.
{¶ 5} The victim’s autopsy revealed that she was murdered in a brutal manner.
The autopsy reflected that she was beaten, then strangled, and then stabbed to death.
{¶ 6} The victim sustained a fractured hyoid bone and bruising on the right side of
her neck, indicia of the manual strangulation. There were multiple contusions on the
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right shoulder, the left side of the chest, and the left breast. There were multiple signs of
trauma on the right arm, the right thigh, the left ankle, and the left hand.
{¶ 7} The autopsy showed that following the beating and strangulation, the victim
was stabbed three times. The first stab wound pierced the left internal jugular vein, the
second went through the left ventricle of her heart, and the third stab wound went into the
victim’s breast tissue. The autopsy concluded that the left ventricle stabbing is what
killed the victim. Rectal, oral, and vaginal swabs were retrieved in the autopsy for DNA
analysis.
{¶ 8} The investigating detective subsequently obtained the video surveillance
footage of the relevant timeframe from a Stop & Go located directly across the street
from the scene of the murder. It showed appellant at the store at the same time as the
victim. In conjunction with this, appellant’s DNA matched the rectal swab taken from
the victim.
{¶ 9} In conjunction with the above, a federal prisoner who was previously housed
with appellant in jail, testified that appellant had admitted to him that he had engaged in
intercourse with the victim and killed her when she resisted his attempt at robbing her.
Notably, the witness furnished specific details of the murder that were never released to
the public.
{¶ 10} On July 26, 2006, appellant was indicted on one count of rape, in violation
of R.C. 2907.02(A)(2), a felony of the first degree, one count of aggravated robbery, in
violation of R.C. 2911.01(A)(3), a felony of the first degree, and one count of murder, in
3.
violation of R.C. 2903.01(B). Following a bench trial, appellant was convicted of the
lesser included offense of murder, in violation of R.C. 2903.02(A), an unclassified
felony. Appellant was found not guilty on the remaining charges. Appellant was
sentenced to a term of incarceration of fifteen years to life, consecutive to a separate
prison term being served for subsequent felony convictions on separate crimes.
{¶ 11} Eight years later, on June 30, 2014, appellant filed a request for leave to file
an untimely motion for new trial pursuant to Crim.R. 33. On December 30, 2014, it was
denied. This appeal ensued.
{¶ 12} In the first assignment of error, appellant contends that the trial court erred
when it denied his request for leave to file an untimely motion for a new trial and found
no meritorious basis for a new trial. We do not concur.
{¶ 13} Under Ohio law, “A motion for a new trial is addressed to the sound
discretion of the trial court, and will not be reversed absent an abuse of discretion.” State
v. Schiebel, 55 Ohio St.3d 71, 76,
564 N.E.2d 54 (1990). An abuse of discretion
“connotes more than a mere error of law or judgment; it implies that the court’s attitude is
unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore,
5 Ohio St.3d 217,
219,
450 N.E.2d 1140 (1983).
{¶ 14} Crim.R. 33 sets forth the necessary requirements that must be met when
filing a motion for a new trial:
(B) Application for a new trial shall be made by motion which,
except for the cause of newly discovered evidence, shall be filed within
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fourteen days after the verdict was rendered, or the decision of the court
where a trial by jury has been waived, unless it is made to appear by clear
and convincing proof that the defendant was unavoidably prevented from
filing his motion for a new trial, in which case the motion shall be filed
within seven days from the order of the court finding that the defendant was
unavoidably prevented from filing such motion within the time provided
herein.
Motions for new trial on account of newly discovered evidence shall
be filed within one hundred twenty days after the day upon which the
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.
{¶ 15} In addition, Crim.R. 33(C) mandates that appellant must attach supporting
affidavits.
{¶ 16} The record reflects no prejudice to appellant in the denial of his request for
leave to file an untimely motion for a new trial. The testimony of his former cellmate,
and the accompanying likelihood of a sentencing accommodation, was well known to all
parties throughout the case. Contrary to appellant’s suggestion, none of this constituted
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newly discovered evidence. Further, ample additional compelling evidence of guilt was
presented at trial.
{¶ 17} Lastly, appellant failed to attach the requisite affidavits supporting the
motion as mandated by Crim.R. 33. Accordingly, we find appellant’s first assignment of
error not well-taken.
{¶ 18} In the second assignment of error, appellant contends that the trial court
erred when it denied appellant an evidentiary hearing. We do not concur.
{¶ 19} It is well-established under Ohio law that it lies within the trial court’s
discretion whether to grant an evidentiary hearing when there is a motion for a new trial.
State v. Hill, 64 Ohio St.3d 313, 333,
595 N.E.2d 884 (1992). “In the absence of a clear
showing of abuse such decision will not be disturbed.”
Id.
{¶ 20} As previously discussed, appellant’s former cellmate receiving a sentencing
accommodation is not new evidence and, as such, would not have changed the outcome.
Accordingly, we find appellant’s second assignment of error not well-taken.
{¶ 21} Wherefore, the judgment of the Lucas County Court of Common Pleas is
hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R.
24.
Judgment affirmed.
6.
State v. Nuhfer
C.A. No. L-15-1013
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, 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.sconet.state.oh.us/rod/newpdf/?source=6.
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