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State of Ohio v. Michael Mcconnell

October 28, 2011


(Criminal Appeal from Common Pleas Court) Trial Court Case No. 03 CR 00400

Cite as State v. McConnell,


WAITE, J. (Sitting by Assignment)

{¶1} This is Appellant Michael McConnell's third appeal concerning his June 2003 conviction for the rape of his eight-year-old daughter. Appellant initially appealed his conviction, which was affirmed. Appellant then sought leave to file a motion for new trial in 2006. The trial court denied his motion without a hearing, Appellant appealed, and we remanded for a hearing on his motion. On remand, the trial court granted Appellant leave to file his motion. No motion was filed.

{¶2} Two years after the trial court's entry granting him leave, in May of 2009, Appellant, without seeking additional leave, filed a motion for new trial citing the same grounds as the 2006 request for leave to file a motion for new trial. The trial court denied the May of 2009 motion as untimely under Crim.R. 33(B). Appellant did not appeal. One year later, in July of 2010, Appellant filed a hybrid motion for leave to file a motion for new trial and motion for new trial, substantively identical to the 2006 and 2009 versions of his previous motions. The 2010 motion was filed five years after the verdict and four-and-a-half years after the discovery of the "new evidence" identified by Appellant. The trial court denied the 2010 motion. Appellant filed the instant appeal from this ruling. For the following reasons, the judgment of the trial court is affirmed.


{¶3} The pertinent facts concerning the underlying prosecution and Appellant's subsequent motions are as follows. In June of 2003 Appellant was convicted of the rape of his eight-year-old daughter, D.M. At trial, D.M. gave a detailed account of the incident, relating that she awoke to find her father pulling her underwear down and placing his "front" in her "back." Her testimony at trial was consistent with her prior statements to her mother, Clare, and those made to the doctor in the emergency room who examined her when she was taken to the hospital by her mother. The emergency room doctor's assessment and D.M.'s medical history were examined by a second doctor, an expert on child abuse. Both examining doctors testified at trial that the injury D.M. sustained was consistent with the incident described by the child, and ruled out alternate explanations for the injury based upon the child's medical history. Per protocol when dealing with sexual assault on a minor, the emergency room staff notified the police and social services, however, Clare removed D.M. from the hospital against medical advice and before the investigation was completed.

{¶4} Appellant denied molesting his daughter at trial, and instead claimed his daughter must have "rolled over onto what he described as his 'morning wood,'" resulting in the fissure described by the medical witnesses. (9/4/09 Memo Contra Motion for New Trial, p. 3.) Alternate testimony was also offered that "he did not do it and that if he did, he did not mean it because he thought that D.M. was Clare [his wife]." (6/7/06 Decision Order and Entry Denying Motion for Leave to File Motion for New Trial, p. 3.) Clare appears to have testified at trial on Appellant's behalf. Appellant filed a timely appeal of his conviction; the conviction was affirmed and the Ohio Supreme Court declined review.

{¶5} On or about February 20, 2006, Appellant filed a motion seeking leave to file a motion for new trial. The state's memorandum contra was filed on March 16, 2006. Appellant filed an amended motion on March 20, 2006, and his reply to the state's memo was filed on April 25, 2006. Attached to the amended motion was a March 9, 2006 affidavit of Clare which simply stated: "Sometime in January 2006, my daughter came to me and said that she felt very bad. She told me that nothing had happened between her and her father that she may have dreamed that this had happened." (State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, ¶5.) The trial court reviewed the motions and the trial transcript and denied Appellant's motion for leave on June 7, 2006. The trial court found that Appellant's incarceration was not a sufficient impediment to obtaining his daughter's alleged recantation within the 120-day period ordinarily contemplated by Crim.R. 33(B). Accordingly, the trial court denied Appellant's request for leave to file a motion for new trial without holding a hearing, deciding that he failed to demonstrate "by clear and convincing proof" that he was "unavoidably prevented from filing his motion" within the 120 days prescribed by the rule. Crim.R. 33(B). Appellant appealed, challenging both the denial of his motion and the trial court's failure to hold a hearing on the motion prior to ruling. We reversed the decision of the trial court and held that, while the court might ultimately deny the motion, the information in the record was sufficient to entitle Appellant to a hearing on his motion. We also noted that although the mother's affidavit did not seem sufficient to support a motion for new trial, the affidavit combined with Appellant's incarceration at least supported the motion sufficiently that the court should have held a hearing before ruling on the motion. On remand, following a hearing, the state filed a brief conceding that the prosecutor could not produce evidence demonstrating Appellant was capable of filing his motion within the 120-day period.

{¶6} On July 27, 2007, the trial court granted Appellant leave to file his motion for new trial pursuant to Crim.R. 33(B). This rule requires that the motion must be filed within seven days of the order granting leave. Appellant did not file a motion for new trial within the seven-day period, however. On May 12, 2009, nearly two years later, Appellant filed his motion for new trial. As grounds for the 2009 motion, Appellant again cited to "new evidence," but Appellant raised the same evidence identified in the 2006 motion, D.M.'s alleged recantation. Attached to this motion was an affidavit that appeared to be signed by D.M. who attested only: "the letter attached to this affidavit is true." There was a document attached to the affidavit, which suggested that D.M. was envious of her brother, wanted attention, and made up the story about her father, and that the fissure must have been the result of straining too hard to defecate, not any misconduct by Appellant. (5/12/09 D.M. Aff.) None of these details were included in D.M.'s affidavit, nor did the affidavit, or the motion itself, explain the delay in filing the motion. The state opposed the motion and the trial court denied it as untimely on November 6, 2009.

{¶7} On July 12, 2010, more than a year after filing his untimely motion for new trial, Appellant filed a third motion for leave to file for new trial, this time with his motion for a new trial attached. In support of this, second, motion seeking leave, Appellant attached a copy of the same affidavit offered in support of the previous year's motion for new trial, but no new affidavit or other evidence was presented. The motion itself was substantively identical to the motion denied by the trial court the year before. The copy of the affidavit was not certified or otherwise authenticated. Again, no explanation as to the delay was given and no new evidence was offered. The state filed an opposing motion. On September 29, 2010, the trial court cited the record demonstrating Appellant was aware of the "new evidence" offered in support of the 2010 motion for more than four years, as early as February of 2006, when he filed his original motion. The court found this third attempt to gain a new trial was barred by the doctrine of res judicata. Appellant filed a timely appeal on October 29, 2010.



{ΒΆ9} In his sole assignment of error, Appellant asserts the trial court should have allowed, at minimum, a hearing on his renewed combined motion for ...

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