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State v. Dillingham

Court of Appeals of Ohio, Twelfth District, Butler

November 20, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
CHARLES DILLINGHAM, Defendant-Appellant.

         CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2010-10-1742

          Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, for plaintiff-appellee

          Charles Dillingham, defendant-appellant, pro se

          OPINION

          S. POWELL, J.

         {¶ 1} Defendant-appellant, Charles Dillingham, appeals from the decision issued of the Butler County Court of Common Pleas denying his most recent motion for a new trial after he was found guilty of four counts of felonious assault, each with a firearm specification, and one count of having weapons while under disability.[1] For the reasons outlined below, we affirm.

         {¶ 2} Dillingham is no stranger to this court having previously appealed his conviction on multiple occasions. See State v. Dillingham, 12th Dist. Butler No. CA2011-03-043, 2011-Ohio-6348; State v. Dillingham, 12th Dist. Butler Nos. CA2012-02-037 and CA2012-02-042, 2012-Ohio-5841; State v. Dillingham, 12th Dist. Butler Nos. CA2012-02-037 and CA2012-02-042, 2013-Ohio-2050; and State v. Dillingham, 12th Dist. Butler No. CA2014-11-226 (June 8, 2015) (Accelerated Calendar Judgment Entry). In each of these cases, we overruled Dillingham's various assignments of error and affirmed Dillingham's conviction and 14-year prison sentence. This includes a decision by this court affirming the trial court's decision denying Dillingham's motion for leave to file a delayed motion for a new trial due to alleged prosecutorial misconduct.

         {¶ 3} Despite this court's previous rulings, on June 5, 2017, Dillingham filed a motion for a new trial arguing he was entitled to a new trial "due to misconduct of state's witness and prosecutor, " who Dillingham claims violated his right to a fair trial. In support of this motion, Dillingham cited R.C. 2945.79(A) and (B), which provides that a new trial may be granted resulting from:

(A) Irregularity in the proceedings of the court, jury, prosecuting attorney, or the witnesses for the state, or for any order of the court, or abuse of discretion by which the defendant was prevented from having a fair trial;
(B) Misconduct of the jury, prosecuting attorney, or the witnesses for the state * * *

         {¶ 4} According to Dillingham, he was entitled to a new trial since a state witness, Officer Shawn Fryman, a police officer with the city of Hamilton, as well as the prosecutor, engaged in misconduct by committing perjury and/or knowingly eliciting perjured testimony at trial.

         {¶ 5} On July 10, 2017, the trial court issued a decision denying Dillingham's motion for a new trial upon finding the motion was untimely in accordance with both R.C. 2945.80 and Crim.R. 33(B), which required Dillingham to file his motion no later than 14 days after the trial court rendered its verdict. It is undisputed that the trial court rendered its verdict finding Dillingham guilty following a bench trial on January 13, 2011.

         {¶ 6} Dillingham now appeals from the trial court's decision denying his motion for a new trial, raising two assignments of error for review. For ease of discussion, Dillingham's two assignments of error will be addressed together.

         {¶ 7} Assignment of Error No. 1:

         {¶ 8} APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF PROSECUTORIAL MISCONDUCT AND STATE'S WITNESS IN VIOLATION OF APPELLANT'S ...


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