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State of Ohio v. Joel Covender

December 26, 2012

STATE OF OHIO APPELLEE
v.
JOEL COVENDER APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 94CR045253

The opinion of the court was delivered by: Dickinson, Judge.

Cite as State v. Covender,

DECISION AND JOURNAL ENTRY

INTRODUCTION

{¶1} Joel Covender has appealed the trial court's denial of his third motion for leave to file a delayed motion for new trial based on newly discovered evidence. The trial court denied him leave because it determined that he had not proven that he was "unavoidably prevented" from the discovery of the evidence upon which he must rely as required by Rule 33(B) of the Ohio Rules of Criminal Procedure. This Court reverses because, under the circumstances, it is unreasonable to hold that, because Mr. Covender knew of the existence of his accuser's therapy records before trial, reasonable diligence required him to discover the potentially exculpatory content of those records within 120 days after the day on which the verdict against him was rendered.

BACKGROUND

{¶2} In 1996, the State tried Mr. Covender on charges of gross sexual imposition and felonious sexual penetration involving his six-year-old stepdaughter, A.S., and her younger brother, J.S. Mr. Covender denied the allegations and presented evidence tending to show that the children's paternal grandparents had concocted the story to get custody of the children from their mother and that A.S. had told her mother that the allegations were not true. The jury convicted Mr. Covender on all charges. This Court affirmed the convictions on appeal. State v. Covender, 9th Dist. No. 96CA006457, 1997 WL 802947 (Dec. 24, 1997), appeal not accepted, 87 Ohio St. 3d 1490 (2000). Mr. Covender was released on parole in 2007 after serving more than ten years in prison.

{¶3} Within a month of his release, Mr. Covender moved for leave to move for a new trial under Rule 33(A)(6) of the Ohio Rules of Criminal Procedure based on the fact that both of his stepchildren had come forward as adults to testify that the alleged abuse had never happened. Following a hearing, the trial court granted Mr. Covender a new trial on all counts. The State appealed the trial court's decision granting a new trial on the counts related to Mr. Covender's stepdaughter, but did not appeal the decision on the counts related to his stepson. In a split decision, this Court reversed the trial court's decision to grant a new trial on the counts related to the stepdaughter because it determined that her new testimony did not "recant" her trial testimony and was not based on personal knowledge because she said she did not remember much of her childhood. State v. Covender, 9th Dist. No. 07CA009228, 2008-Ohio-1453, ¶ 16 ("Covender II").

{¶4} After this Court reversed the trial court's decision granting Mr. Covender's first motion for a new trial, David S., A.S.'s biological father, came forward to testify by affidavit that he had seen and heard his mother, along with A.S.'s mother's stepmother, coaching A.S. regarding her proposed testimony at the 1996 trial. In June 2008, in reliance on David S.'s affidavit, Mr. Covender moved for leave to file a second motion for a new trial based on newly discovered evidence. The trial court granted the second motion for leave to move for a new trial, but denied the motion for a new trial because it determined that David S.'s testimony alone would not have materially affected the outcome of the 1996 trial and it believed that this Court's decision in Covender II prevented it from considering the evidence Mr. Covender had presented in support of his first motion for a new trial.

{¶5} Mr. Covender appealed that decision, and, in another split decision, this Court affirmed. State v. Covender, 9th Dist. No. 09CA009637, 2010-Ohio-2808 ("Covender III"). In doing so, this Court held that its prior conclusions that A.S.'s affidavit was not based on personal knowledge and that "there was 'no evidence properly before the trial court' in support of the first motion [for a new trial] that would have given the trial court the reasonable belief that A.S.'s trial testimony was false" were law of the case. Id. at ¶ 10 (quoting State v. Covender, 9th Dist. No. 07CA009228, 2008-Ohio-1453, ¶ 16). This Court also held that it could not review whether the trial court properly denied the second motion for a new trial because Mr. Covender had not included a copy of the trial transcript with the record on appeal. Id. at ¶ 17.

{¶6} Mr. Covender is now before this Court following denial of his third motion for leave to move for a new trial based on newly discovered evidence. On July 27, 2011, Mr. Covender moved for leave to file his third motion for new trial based on potentially exculpatory evidence found in A.S.'s counseling records. The records revealed that, between the time that the allegations first surfaced and when Mr. Covender went to trial in April 1996, A.S.'s therapist had indicated that A.S. had a problem telling the truth. Mr. Covender argued that he had been unavoidably prevented from discovering that information within the permissible 120-day window following the verdict. Crim. R. 33(B).

{¶7} The trial court held a hearing on the timeliness of the discovery for the purpose of ruling on the motion for leave. Mr. Covender testified that he served nearly 11 years in prison before he learned at his first parole hearing that both of his stepchildren had petitioned the Parole Board for his release, saying that the allegations they had made as children were not true. According to Mr. Covender, within a week of his release in February 2007, he contacted his lawyer about moving for a new trial based on the new testimony of both his accusers. He filed his first motion for leave to move for new trial on April 11, 2007. That effort ended in March 2008 when this Court reversed the trial court's ruling ordering a new trial on the counts regarding A.S. Mr. Covender filed his second motion for leave to move for a new trial just three months later, on June 27, 2008. He based his second motion on the affidavit of A.S.'s natural father, who testified that he did not come forward to testify about the grandmothers coaching the children until after this Court had reversed the order granting the new trial. Mr. Covender's second attempt at a new trial ended in June 2010 when this Court affirmed the trial court's denial of his second motion for a new trial.

{¶8} One year later, in July 2011, Mr. Covender filed his current motion for leave to move for a new trial. The trial court held a hearing on that motion at which Mr. Covender testified that he had been unable to continue his efforts to exonerate himself between December 2009 and the spring of 2011 because of medical problems. He testified that, in December 2009, he had gallbladder surgery that went terribly wrong. He was flown to the Cleveland Clinic and spent 30 to 40 days in a coma, then spent five weeks in a subacute center with a hole in his stomach. He explained that he dealt with an open wound and home nursing care until October 2010, when he underwent reconstructive surgery and spent another three weeks in the hospital fighting off an infection. He said that he did not start getting better until around February or March of 2011. He explained that he had not been able to work on his case while he was dealing with his serious medical problems.

{ΒΆ9} Mr. Covender also testified that, by April 2011, he had begun searching for A.S.'s therapy records. The agency that had treated her no longer existed, so Mr. Covender contacted the local mental health board to find the records. Once he located them, he was not permitted to review them without A.S.'s permission. He testified that he contacted A.S. and again sought her help. A.S. testified that she happily complied, even traveling to the Nord Center twice in late May 2011 to retrieve a copy, which she then reviewed and sent to Mr. ...


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