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State v. Videen

Court of Appeals of Ohio, Second District, Montgomery

November 17, 2017

STATE OF OHIO Plaintiff-Appellee
v.
LANCE VIDEEN Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 2011-CR-3378

          MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee

          LANCE VIDEEN, Defendant-Appellant

          OPINION

          WELBAUM, J.

         {¶ 1} Defendant-appellant, Lance Videen, appeals from the judgment of the Montgomery County Court of Common Pleas overruling his Crim.R. 33 motion for new trial without a hearing. For the reasons outlined below, the judgment of the trial court will be affirmed.

         Facts and Course of Proceedings

         {¶ 2} On December 7, 2011, Videen was indicted on two counts of illegal use of a minor in nudity-oriented material or performance in violation of R.C. 2907.323(A)(3). The charges arose after Sergeant Harold Jones of the Riverside Police Department discovered images on Videen's laptop computer depicting naked, prepubescent boys.

         {¶ 3} After pleading not guilty to the charges, on February 12, 2012, Videen filed a motion to suppress the images discovered on his computer and the statements he made to Sergeant Jones during a video-recorded interview at the police station. Following a hearing on the matter, the trial court overruled Videen's motion to suppress. The trial court declined to suppress Videen's statements because it found that Videen had been properly advised of his Miranda rights and that he knowingly and voluntarily waived them. The trial court declined to suppress the incriminating images discovered on Videen's computer because the court found that Videen had voluntarily consented to the search that yielded the images.

         {¶ 4} On April 12, 2012, the case proceeded to a bench trial. At trial, the State presented the testimony of Sergeant Jones and Jones's recorded interview with Videen. Videen did not testify or present any evidence in his defense. Although Videen was represented by counsel at the suppression hearing, he elected to represent himself at trial with standby counsel present to assist him. With the assistance of standby counsel, Videen moved for a judgment of acquittal under Crim.R. 29, which the trial court denied. Thereafter, on April 18, 2012, the trial court returned a guilty decision on both illegal-use counts. Following a presentence investigation, the trial court sentenced Videen to community control sanctions not to exceed five years and designated him a Tier I sex offender.

         {¶ 5} Videen filed an appeal from his conviction and sentence, which we decided on April 5, 2013. See State v. Videen, 2013-Ohio-1364, 990 N.E.2d 173 (2d Dist.). In that appeal, we held the trial court correctly concluded that Videen voluntarily consented to the search of his computer. Id. at ¶ 19-26. However, we reversed and vacated his conviction for one of the illegal-use counts on grounds that the nude image on which that count was based did not amount to a "lewd exhibition" as is required for convictions under R.C. 2907.323(A)(3). Id. at ¶ 28-36. The judgment of the trial court was otherwise affirmed and the matter was remanded for resentencing. Id. at ¶ 50. At resentencing, Videen was again sentenced to community control sanctions not to exceed five years and designated a Tier I sex offender.

         {¶ 6} Three and half years later, on October 25, 2016, Videen filed a "Motion for Order Vacating Prior Conviction Alternatively, Motion for New Trial." The trial court reviewed the motion as a Crim.R. 33 motion for new trial given that the court found no procedural mechanism permitting the requested vacation of Videen's conviction. Based on that review, the trial court overruled Videen's motion by a written decision filed on January 31, 2017.

         {¶ 7} On February 23, 2017, Videen filed a notice of appeal from the trial court's decision overruling his motion for new trial. Following the submission of his appellant brief, Videen filed a motion with this court requesting oral argument. We granted Videen's motion and scheduled oral argument for October 24, 2017. At oral argument, Videen, having discharged his retained appellate counsel, represented himself pro se. During his pro se oral argument, Videen referred to matters and alleged facts that are outside the record of this case. Because an appellate court may only consider matters contained in the record, we are not permitted to consider the matters and facts raised by Videen during his oral argument. See State v. Simpson, 2d Dist. Montgomery No. 25202, 2013-Ohio-1695, ¶ 19 (" '[T]his court is unable to consider any evidence not considered by the trial court.' It is axiomatic that an appellate court will not consider matters outside of the appellate record."), quoting Dayton v. Turic, 2d Dist. Montgomery No. 20149, 2005-Ohio-131, ¶ 8, quoting Alex-Bell Oxford Limited Partnership v. Woods, 2d Dist. Montgomery No. 16038, 1998 WL 289028, * 4 (June 5, 1998). (Other citation omitted.) Moreover, this appeal is restricted to the procedural issues raised by the parties in their respective appellate briefs.

         Assignment of Error

         {¶ 8} In support of his appeal, Videen raised a single assignment of error for this court's review. Under his assignment of error, Videen contends that the trial court's decision overruling his "Motion for Order Vacating Prior Conviction Alternatively, Motion for New ...


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