Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Assistant
Prosecuting Attorney, Attorney for Plaintiff-Appellee
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.
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.
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