[Cite as State v. Smith,
2020-Ohio-6718.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190485
TRIAL NO. B-0707191-A
Plaintiff-Appellee, :
vs. : O P I N I O N.
ROGER SMITH, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 16, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Roger Smith, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Defendant-appellant Roger Smith appeals the Hamilton County
Common Pleas Court’s judgment overruling his “Motion for Leave to File Motion for
New Trial pursuant to Crim.R. 33(A)(1), (2) and (5).” We affirm the court’s
judgment, because Smith failed to demonstrate that he had been unavoidably
prevented from timely moving for a new trial on the grounds asserted.
Procedural Posture
{¶2} In 2007, Smith was indicted with his brother Ricky on two counts of
murder in violation of R.C. 2903.02(A) and (B) for the death of Rodney Gorley
following a physical altercation. The defendants were tried together before a jury.
{¶3} The altercation occurred in the front yard of Kristal Williams’s house,
in the presence of Williams and others who had gathered there. Williams and her
friends Rasheka Smith and Markuita Dale testified at trial. They provided consistent
accounts of the events leading to Gorley’s fatal injury, and when pressed by the
defense on cross-examination, each denied appearing at trial under threat or
intimidation by the police or the prosecuting attorney.
{¶4} The witnesses testified that Gorley had stopped by Williams’s house to
use a phone to summon a bootleg cab. Gorley then waited for his ride on Williams’s
front porch, where the witnesses sat drinking and talking. Gorley was still there an
hour or so later when Smith, who lived on the street directly behind Williams’s
house, approached the porch and engaged Gorley in a verbal exchange. The nature
of that exchange was not apparent to the witnesses, but it ended with Williams
asking Smith to leave.
{¶5} A half hour later, as Gorley was descending the porch steps, Smith’s
brother Ricky emerged from the side of Williams’s house and struck Gorley in the
back of the head with a claw hammer. Smith followed and began punching Gorley.
Gorley fought back, and all three men went to the ground, where they briefly
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OHIO FIRST DISTRICT COURT OF APPEALS
struggled until Williams demanded that they leave. The Smith brothers fled. Gorley
stood, staggered, and fell.
{¶6} The three witnesses observed that the chest area of Gorley’s shirt was
bloody, and Rasheka Smith saw “slits” on Gorley’s chest and arms. Dale summoned
emergency medical assistance. Gorley was taken to the hospital, where he died three
days later. The cause of death was a stab wound to his heart.
{¶7} The fight occurred after dark, with limited illumination from
streetlights and a neighboring building. And the witnesses admitted to having
shared a pint of liquor that day. Nevertheless, the witnesses were, in varying
degrees, acquainted with the Smith brothers and thus readily identified them as
Gorley’s assailants. And the witnesses consistently maintained that they had not
seen a knife in anyone’s hand.
{¶8} From the scene, the police recovered a knife blade laying in blood on
the ground in Williams’s side yard and a knife handle near a truck parked in the rear
yard of Smith’s residence. And the police also observed small cuts on Smith’s hands.
The knife blade and handle were found to bear traces of Gorley’s blood. Gorley’s
blood was also found on Smith’s pants and right shoe and as part of a mixture of
blood on Smith’s left shoe. Ricky was excluded, but Smith could not be excluded, as
a source of that mixture.
{¶9} The jury found Smith guilty of murder as charged in both counts of the
indictment, and the trial court imposed concurrent prison terms of 15 years to life.
In the direct appeal, this court overruled assignments of error challenging, among
other things, the weight and sufficiency of the evidence to support the convictions,
but we remanded for resentencing consistent with R.C. 2941.25. State v. Smith, 1st
Dist. Hamilton No. C-080685, 2009 WL 9159650 (July 1, 2009). Following
resentencing, Smith stood convicted of purposeful murder in violation of R.C.
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OHIO FIRST DISTRICT COURT OF APPEALS
2903.02(A). State v. Smith, 1st Dist. Hamilton No. C-090677 (June 23, 2010)
(affirming the 2009 judgment of conviction).
{¶10} Smith also challenged his conviction in a timely-filed petition under
R.C. 2953.21 for postconviction relief and an untimely motion under Crim.R.
33(A)(6) for a new trial. The common pleas court denied his 2009 postconviction
petition alleging that his trial counsel had been ineffective in failing to investigate
and present testimony to support his defense that Gorley had fallen on his own knife
during the fight. Smith was denied leave to file a delayed appeal from that judgment.
See State v. Smith, 1st Dist. Hamilton No. C-090911 (Jan. 21, 2010). The common
pleas court also overruled Smith’s 2010 motion seeking a new trial based on the
state’s expert’s trial testimony that Gorley might have fallen on his own knife and
“newly discovered evidence” in the form of a statement in the trial court’s entry
overruling Ricky’s new-trial motion that “there was no evidence at trial specifically
identifying which of the two defendants was responsible for the wound to the victim’s
heart.” This court affirmed that judgment, because Smith had neither sought nor
been granted leave to file a late new-trial motion. State v. Smith, 1st Dist. Hamilton
No. C-100294 (Dec. 3, 2010).
2019 Motion for Leave to File a Motion for a New Trial
{¶11} In 2019, Smith filed with the common pleas court his “Motion for
Leave to File Motion for New Trial pursuant to Crim.R. 33(A)(1), (2) and (5).”
Attached to the motion was the affidavit of trial witness Rasheka Smith.
{¶12} Rasheka Smith averred in her affidavit that she had been “coerced by
the Detectives and the State to testify,” that her testimony was “the product of
coercion by the prosecution,” that the state and police “threatened [her] both directly
and indirectly,” and that the police “continued to come to [her] job and harass [her]
concerning appearing at court and testifying for their cause.” She also asserted that
she had not seen “the disturbance” between defendant and Gorley, because of “the
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OHIO FIRST DISTRICT COURT OF APPEALS
darkness,” and because the porch light had not been on and she had been “drinking.”
She further asserted that she had been “[un]aware of what was transpiring [but] just
knew there was a disturbance” because she could hear it. Yet, she insisted that she
“[had seen] the hands of Roger Smith at the time of the incident … and there was
no weapon of any kind in either of [his] hands.”
{¶13} In his Crim.R. 33(B) motion, Smith sought leave to move for a new
trial under Crim.R. 33(A)(1), (2) and (5), on the grounds of an irregularity in the
proceedings, prosecutorial misconduct, and an error of law. He asserted that
Rasheka Smith’s affidavit showed that the state had “coerced” her testimony, that the
state had failed to disclose exculpatory evidence concerning that coercion and her
inability to see due to inadequate lighting, and that his trial counsel had been
ineffective in failing to investigate or interview her or to assess her ability to see
considering those lighting conditions. Smith also requested a hearing on his motion
for leave, arguing that the affidavit, made November 2018 and received by him in
December 2018, showed that he had been unavoidably prevented from timely
seeking a new trial on those grounds. The common pleas court overruled the motion
for leave without an evidentiary hearing.
Crim.R. 33(B) Motion for Leave
{¶14} In this appeal, Smith presents two assignments of error. In his first
assignment of error, he contends that the common pleas court abused its discretion
in denying his Crim.R. 33(B) motion for leave without conducting an evidentiary
hearing. This challenge is untenable.
{¶15} A new trial may be granted under Crim.R. 33(A)(2) on the ground of
prosecutorial misconduct, State v. Judy, 1st Dist. Hamilton No. C-843704, 1986 WL
8100 (July 23, 1986), or under Crim.R. 33(A)(1) or 33(A)(5) on the ground of
ineffective assistance of counsel. State v. Norton, 1st Dist. Hamilton Nos. C-840415
and C-840896,
1985 WL 8950 (July 24, 1985). A motion for a new trial on grounds
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OHIO FIRST DISTRICT COURT OF APPEALS
other than newly discovered evidence must be filed either within 14 days of the
return of the verdict or within seven days after the granting of leave to file a new-trial
motion out of time. Crim.R. 33(B).
{¶16} On a Crim.R. 33(B) motion for leave to move for a new trial on
grounds other than newly discovered evidence, the movant bears the burden of
proving by “clear and convincing” evidence that he or she had been “unavoidably
prevented from [timely] filing [the new-trial] motion.” Crim.R. 33(B). A reviewing
court may not overturn a decision on a motion for leave that is supported by some
competent and credible evidence. State v. Schiebel, 55 Ohio St.3d 71, 74,
564 N.E.2d
54 (1990).
{¶17} Crim.R. 33(B), by its terms, contemplates a hearing on a motion for
leave. The nature of that hearing is discretionary with the court and depends on the
circumstances. The court must conduct an evidentiary hearing if the evidence offered
in support of the motion for leave demonstrates unavoidable prevention. See State v.
Carusone, 1st Dist. Hamilton No. C-130003, 2013-Ohio-5034, ¶ 4 and 33; State v.
Gaines, 1st Dist. Hamilton No. C-090097,
2010-Ohio-895, ¶ 4.
{¶18} Smith did not support his motion for leave with his own affidavit
attesting to the circumstances of securing Rasheka Smith’s affidavit. Rasheka Smith,
in her affidavit, did not speak to the circumstances of making that affidavit. Also, the
record of the proceedings leading to Smith’s conviction shows that the defense had
explored with the eyewitnesses at trial the dim lighting conditions and alleged coercion
by the police or the prosecuting attorney. Thus, neither the motion for leave, with its
supporting evidentiary material, nor the record of the proceedings at trial provided any
evidence that Smith had been unavoidably prevented from timely moving for a new
trial on the proposed grounds.
{¶19} Because the evidence offered in support of the motion for leave did not
demonstrate unavoidable prevention, the common pleas court did not abuse its
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OHIO FIRST DISTRICT COURT OF APPEALS
discretion in declining to conduct an evidentiary hearing on the motion. And because
Smith failed to sustain his burden of presenting clear and convincing proof of
unavoidable prevention, the court did not err in overruling the motion. Accordingly,
we overrule the first assignment of error.
Crim.R. 33(A)(1), (2), and (5) Motion for a New Trial
{¶20} In his second assignment of error, Smith contends that the common
pleas court erred in not granting him a new trial. We do not reach the merits of that
challenge.
{¶21} Smith’s notice of appeal conferred upon this court jurisdiction to review
only the judgment from which he appealed. In that judgment, the common pleas court
overruled Smith’s Crim.R. 33(B) motion for leave to file a motion for a new trial and
thus did not reach on the merits his proposed Crim.R. 33(A) new-trial motion.
Accordingly, this court has no jurisdiction to address his challenge to the common pleas
court’s failure to grant him a new trial.
We Affirm
{¶22} The common pleas court neither abused its discretion in declining to
conduct a hearing, nor erred in overruling Smith’s Crim.R. 33(B) motion for leave to
file a new-trial motion out of time. Accordingly, we affirm the court’s judgment.
Judgment affirmed.
MOCK, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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