Melanie Ogle, Rockbridge, Ohio, Pro Se Appellant.
Timothy P. Gleeson, Special Prosecuting Attorney, Logan, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
Matthew W. McFarland Presiding Judge
(¶ 1} Defendant-Appellant Melanie Ogle appeals the March 8, 2013 judgment entry of the Hocking County Common Pleas Court denying her motion for leave to file a motion for new trial. Appellant contends the trial court erred in denying the motion for two reasons: (1) the judgment entry denying her motion was not signed by a judge or acting judge and (2) the trial court made no finding that she was unavoidably prevented from discovering alleged new evidence she presented in her motion. Having reviewed the record and the pertinent law, we find no error on the part of the trial court. We therefore overrule Appellant's sole assignment of error and dismiss her most recent appeal.
(¶ 2} In August 2011, Melanie Ogle (hereinafter "Appellant") was convicted by a jury of her peers in the Hocking County Court of Common Pleas of assault on a peace officer. Various appeals have followed Appellant's felony conviction. The events serving as a backdrop to Appellant's felony conviction and the instant appeal are set forth in detail in State v. Ogle, 4th Dist. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA2, 12CA19, 2013-OH-3420, 2013WL3988782.
(¶ 3} The facts relevant to this appeal are as follows. Appellant's criminal trial took place in August 2011. Deputy Trent Woodgeard of the Hocking County Sheriffs Department testified Appellant kicked him in the groin area during a scuffle on Appellant's property. Woodgeard testified the kick took place when Appellant and he were standing between a black SUV and the Ogles' pickup truck. 
(¶ 4} During trial, the State also offered a recorded statement of Appellant's husband, Charles Ogle, taken by Sgt. Kevin Groves of the Hocking County Sheriffs Department shortly after the assault occurred. The trial court ruled against the State's request to use the statement. However, after Charles Ogle testified on behalf of the defense and made contradictory statements, the trial court allowed the recording to be played for impeachment purposes. Charles Ogle further acknowledged "the audio was correct as a whole."
(¶ 5} Since Appellant's felony conviction, she has filed a separate civil proceeding in federal court styled Charles R. Ogle, et al, v. Hocking County, et al, Case No. 10CV00806, United States District Court, S.D.E.D. For the federal court case, Deputy Woodgeard testified in deposition on December 12, 2012. In his deposition testimony, he testified to the events occurring before, during, and after Appellant kicked him Specifically Woodgeard testified Appellant kicked him while both parties were on the driver's side of the SUV.
(¶ 6} Appellant's current appeal stems from the denial of a January 28, 2013 CrimR. 33(B) motion for leave. Appellant' motion for leave argued she was unavoidably prevented from discovering new evidence that Deputy Woodgeard and Sergeant Groves perjured themselves at her criminal trial. Appellant contends Woodgeard's trial testimony about the location of where he was kicked differed from the location he testified to in his 2012 deposition. Appellant argues this differing testimony was newly discovered information not disclosed to her prior to her August 2011 trial. Appellant attached a copy of Woodgeard's deposition testimony to her motion for leave.
(¶ 7} Appellant also contends Sgt. Kevin Groves committed perjury in her criminal trial. She attached personnel records of Sgt. Groves to her motion. The records indicate Groves was disciplined by the Hocking County Sheriff on September 24, 2012, pursuant to an internal investigation. Appellant argues Groves' misconduct and lying in two separate cases in 2012 (not related to hers) is also newly discovered information which was unavailable to her at the time of her trial.
(¶ 8} Appellee does not dispute Woodgeard's federal court deposition testimony and Groves' misconduct and resignation constitute information unavailable to Appellant at the time of her 2011 trial, or within 120 days of her conviction. Appellee does dispute this information constitutes newly discovered evidence of a material nature, pursuant to CrimR. 33(A).
I. ASSIGNMENT OF ERROR.
THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT AS A MATTER OF LAW IN DENYING HER MOTION FOR LEAVE TO FILE A MOTION FOR NEW ...