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State of Ohio v. Curtis Wright

November 4, 2011

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
CURTIS WRIGHT, DEFENDANT-APPELLANT.



CHARACTER OF PROCEEDINGS: JUDGMENT: Criminal Appeal from Common Pleas Court, Case No. CRI-2010-14.

The opinion of the court was delivered by: Vukovich, J.

Cite as State v. Wright,

Affirmed.

OPINION

JUDGES: Hon. Joseph J. Vukovich Hon. Cheryl L. Waite Hon. Mary DeGenaro

¶{1} Defendant-appellant Curtis Wright appeals from his burglary conviction entered in the Harrison County Common Pleas Court. Appellant argues that the trial court should have granted him a new trial based upon the post-trial confession of a defense witness. However, it was within the trial court's province to disbelieve this witness's post-trial version of events.

¶{2} Appellant then raises evidentiary issues such as the refusal to allow him to ask about police reports which he and a defense witness caused to be filed and the alleged admission of hearsay and other acts testimony. These decisions were within the trial court's sound discretion.

¶{3} Finally, he alleges that the verdict was against the manifest weight of the evidence. However, the jury did not clearly lose its way in evaluating the evidence. For the following reasons, the judgment of the trial court is affirmed.

STATEMENT OF THE CASE

¶{4} Appellant was indicted for burglarizing a neighbor's house while they were on vacation. At a jury trial, nineteen-year-old Shawn Ellenbaugh testified that appellant was his mother's live-in boyfriend. He stated that on the night of the burglary, he and appellant walked to the neighbor's house because appellant wished to break in. (Tr. 216). He testified that appellant threatened to kill him if he told anyone. (Tr. 217). When they arrived, appellant tried to pry open the window but then used a rock to break the window. Shawn stated that he climbed through the window and unlocked the door for appellant. (Tr. 217-218). He testified that they went through the house stealing jewelry and money. (Tr. 221).

¶{5} According to Shawn, they then walked to his uncle's house where appellant borrowed a car. He said they drove to Steubenville where appellant bought crack with the stolen money and was told that the jewelry was fake. (Tr. 225). They went back to the burglarized house and stole a big screen television. When it would not fit in the trunk, they put it in the front seat, and drove back to Steubenville to sell it. Shawn testified that no one wanted an old model television, so they left it at a car wash. (Tr. 228). He stated that they arrived home just before 7:00 a.m. (Tr. 229).

¶{6} A cousin testified that she arrived at the house where Shawn and appellant lived at 6:30 a.m. after a night-shift at work. She stated that she saw the car pull in the drive with appellant in the driver's seat and Shawn in the passenger seat. (Tr. 254-256).

¶{7} The owner of the vehicle testified that appellant arrived at his house at midnight on January 17, 2010 and borrowed his car. (Tr. 165). The next morning he went to the house where appellant lived to retrieve his car and noticed the trunk latch was broken and the dashboard was scratched. (Tr. 169-170). In the vehicle, he found a screwdriver, a broken necklace, and a gift card holder addressed to the person whose house had been burglarized. (Tr. 171, 173). His girlfriend confirmed that it was appellant who borrowed their vehicle. (Tr. 188).

¶{8} Appellant's girlfriend, who is Shawn's mother, testified that appellant arrived home at 11:00 p.m. (Tr. 337). She claimed that she went with appellant to her brother's house to borrow his car, they went to Wintersville, and they returned home at 1:00 a.m. at which point they went to bed. (Tr. 339). She testified that appellant never left the bed that night. (Tr. 341).

¶{9} Her fourteen-year-old son, Brandon Ellenbaugh, testified for the defense that his mother and appellant went to his uncle's to borrow a car and arrived home at midnight or 1:00 a.m. (Tr. 373). Brandon said that his brother Shawn then asked him if he wanted to take a ride in their uncle's car but he refused to accompany Shawn. He testified that he saw Shawn return with the vehicle in the morning. According to Brandon, the next day, Shawn brought him to the house he had burglarized the night before, but Shawn noticed that someone had cleaned up the glass so they left. (Tr. 376).

¶{10} On September 30, 2010, the jury found appellant guilty of third-degree felony burglary in violation of R.C. 2911.12(A)(3). On October 28, 2010, appellant filed a motion for a new trial based upon newly discovered evidence. Brandon Ellenbaugh had delivered a written statement to the police station on October 26, 2010, claiming that it was he and Shawn who burglarized the house in the early morning hours of January 17, 2010.

¶{11} At a hearing, Brandon testified that they pushed their uncle's car out of their drive and drove to the neighbor's house. He described how they went through the house and what they stole. He said that Shawn went into an apartment in Cadiz for thirty minutes and reported that no one wanted to buy the television and the jewelry was fake. He stated that they left the television at a car wash in Cadiz. (Tr. 19).

¶{12} The detective who took Brandon's statement testified that Brandon told him that he missed appellant at their house and that he wanted to get him released. Brandon disclosed his belief that he would not be incarcerated because he was a juvenile. (Tr. 8-9). The detective believed that the child had been coached or that he fabricated the story to assist appellant. (Tr. 9).

¶{13} On December 28, 2010, the court denied the motion for a new trial. The court opined that Brandon's new story was not credible. The court noted that both of Brandon's stories lacked detail. The court pointed out that the jury did not place much weight on Brandon's original testimony when he testified for the defense and that this new story was also not credible. Appellant was then sentenced to five years in prison, and he filed a timely notice of appeal.

ASSIGNMENT OF ERROR NUMBER ONE ¶{14} Appellant's first assignment of error provides:

¶{15} "A TRIAL COURT MUST GRANT A DEFENDANT'S MOTION FOR A NEW TRIAL WHEN A WITNESS RECANTS HIS TESTIMONY AND THAT WITNESS CONFESSES THAT HE COMMITTED THE CRIME."

¶{16} Pursuant to Crim.R. 33(A)(6), a new trial may be granted on motion of a defendant whose substantial rights are materially affected by newly discovered evidence material to the defense which could not with reasonable diligence have been discovered and produced at the trial. A new trial cannot be granted on these grounds unless the following factors are met: (1) the evidence discloses a strong probability that it will change the result; (2) the evidence has been discovered since trial; (3) the evidence could not in the exercise of due diligence have been discovered before trial;

(4) the evidence is material to the issues; (5) the evidence is not merely cumulative to former evidence; and (6) the evidence does not merely impeach or contradict former evidence. State v. Petro (1947), 148 Ohio St. 505, syllabus.

¶{17} The decision to grant or deny a new trial based upon newly discovered evidence falls within the trial court's sound discretion. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶85. Said decision should not be reversed absent a ...


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