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State v. Mir

Court of Appeals of Ohio, Seventh District

June 20, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DANIYAL MIR DEFENDANT-APPELLANT

Criminal Appeal from the County Court No. 4 of Mahoning County, Ohio Case No. 12 CRB 386

For Plaintiff-Appellee: Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecuting Attorney.

For Defendant-Appellant: Atty. Robert J. Rohrbaugh II, Robert J. Rohrbaugh, II, LLC

JUDGES: Hon. Cheryl L., Hon. Gene Donofrio, Hon. Joseph J. Vukovich.

OPINION

WAITE, J.

{¶1} Appellant Daniyal Mir was convicted in Mahoning County Court No. 4 of two counts of domestic violence. Five months after his conviction, he filed a motion for a new trial. The motion was based on the affidavit of the victim stating that she was recanting her testimony. The trial court denied the motion, and Appellant filed this appeal. It is clear that Appellant's motion for a new trial was based on the alleged discovery of new evidence, and that it was filed beyond the 120-day time limit set by Crim.R. 33(B) for the filing of such motions. A defendant is permitted to seek leave to file the motion after 120 days if he was unavoidably prevented from the discovery of the new evidence. Appellant contends that the affidavit of recantation should have been sufficient to grant him a new trial, or at least a hearing on the motion. Appellant is incorrect. There is no evidence that Appellant was unavoidably prevented from obtaining the recanted testimony until after the 120-day deadline expired. Further, the victim's affidavit does not state that Appellant would not have been convicted of the crimes once she changed her testimony. The record does not support Appellant's arguments and the judgment of the trial court is affirmed.

{¶2} On April 2, 2012, a criminal complaint was filed against Appellant for two counts of domestic violence, R.C. 2919.25. The complaint arose out of an incident that occurred on March 31, 2012, in which Appellant choked his girlfriend and threatened her one-year old son. He was convicted of both counts at a bench trial on April 25, 2012. The court sentenced him to 180 days in jail on the first count, with 170 days suspended, and 30 days in jail on the second count, with 20 days suspended, to be served concurrently. There were also fines, court costs, and a no-contact order included in the sentence. No direct appeal was filed.

{¶3} On September 24, 2012, Appellant filed a motion for a new trial. Attached to the motion was an affidavit of the victim, dated August 29, 2012. The affidavit stated that the victim had wanted to dismiss the charges before trial, but that she was afraid of being charged with a crime herself if she changed her testimony. The trial court dismissed the motion without a hearing on October 24, 2012, and this timely appeal followed.

{¶4} The trial court's denial of a motion for new trial based on newly discovered evidence is a final, appealable order. State v. Brown, 186 Ohio App.3d 309, 2010-Ohio-405, 927 N.E.2d 1133, ¶17 (7th Dist.).

ASSIGNMENT OF ERROR

THE TRIAL COURT COMMITTED ERROR IN OVERRULING APPELLANT'S MOTION WHERE SAID MOTION CONTAINED AN UNCONTROVERTED AFFIDAVIT OF A KEY FACT WITNESS WHO ADMITTING THAT SHE LIED DURING HER TESTIMONY.

{¶5} Appellant believes he should have been given a new trial based on the affidavit of the victim stating that she was changing her testimony. Appellant contends that the affidavit is new evidence that would likely acquit him at trial. Appellant also argues that the motion for a new trial was not untimely because he could not have discovered the evidence before the affidavit was actually written, and that the motion was filed just a few weeks after the affidavit was obtained.

{¶6} A motion for new trial based on newly discovered evidence is permitted by Crim.R. 33(A)(6):

A new trial may be granted on motion of the defendant for any of the following causes affecting ...

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