Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Trial Court Case No. 90-CR-308
MATHIAS H. HECK, JR., by HEATHER N. JANS, Attorney for
O. HAYDEN, Defendant-Appellant, Pro Se.
1} Robert O. Hayden appeals pro se from the trial
court's denial of his motion for a new trial.
2} Hayden advances two assignments of error. First,
he contends the trial court erred in denying his motion
because prosecutorial misconduct deprived him of a fair
trial. Second, he claims the trial court erred in denying his
motion because he is innocent of a rape charge on which he
3} The record reflects that in 1990 Hayden was
convicted of raping his girlfriend. He received a sentence of
10 to 25 years in prison. Since then, we have resolved at
least nine appeals related to Hayden's conviction.
See State v. Hayden, 2d Dist. Montgomery No. 12220,
1991 WL 215065 (Sept. 27, 1991) (Hayden I); State v.
Hayden, 2d Dist. Montgomery No. 16497, 1997 WL 752614
(Dec. 5, 1997) (Hayden II); State v. Hayden, 2d
Dist. Montgomery No. 17649, 1999 WL 960968 (July 16, 1999)
(Hayden III); State v. Hayden, 2d Dist. Montgomery
No. 20657, 2005-Ohio-4024 (Hayden IV); State v.
Hayden, 2d Dist. Montgomery No. 20747, 2005-Ohio-4025
(Hayden V); State v. Hayden, 2d Dist. Montgomery No.
21764, 2007-Ohio-5572 (Hayden VI); State v. Hayden,
2d Dist. Montgomery No. 23620, 2010-Ohio-3908 (Hayden
VII); State v. Hayden, 2d Dist. Montgomery No. 24992,
2012-Ohio-6183 (Hayden VIII); State v. Hayden, 2d
Dist. Montgomery No. 26524, 2015-Ohio-3262 (Hayden
IX). In addition to an unsuccessful direct appeal, these
prior actions involved numerous motions for post-conviction
relief, DNA testing, and a new trial.
4} In his most recent appeal, Hayden challenges the
trial court's denial of a new-trial motion he filed on
January 26, 1017. Therein, he asserted that the trial
testimony of prosecution witness Laura Kiddon, a criminalist
of the Miami Valley Regional Crime Lab, exonerated him. (Doc.
#15 at 3). Specifically, he claimed Kiddon had testified that
his "blood group" was not found in semen taken from
the victim's vaginal swab or vaginal aspirate.
(Id.). The trial court overruled the motion in a
February 7, 2017 decision and entry. (Doc. #16). On May 18, 2017,
Hayden appealed from the trial court's ruling. (Doc.
#20). On June 23, 2017, we deemed satisfied a show-cause
order questioning the timeliness of Hayden's appeal and
allowed the appeal to proceed.
5} In his first assignment of error, Hayden
reiterates his claim that he is entitled to a new trial based
on Kiddon's trial testimony and a lab report about which
she testified. According to Hayden, Kiddon testified that
based on "PGM" blood typing, which involves enzyme
testing, she only found the victim's type on a vaginal
swab. Hayden asserts that this testimony entitles him to a
new trial. He also argues that the prosecutor engaged in
misconduct by arguing that the semen at issue was his. In his
second assignment of error, Hayden insists, based on the
argument raised in his first assignment of error, that he is
innocent of the rape charge.
6} Upon review, we conclude that Hayden's
assignments of error fail for at least four reasons. First,
his new-trial motion was extraordinarily untimely under both
R.C. 2945.80 and Crim.R. 33(B). Hayden was convicted in 1990,
his new-trial motion does not involve any newly-discovered
evidence, and the trial court made no finding about him being
unavoidably prevented from timely filing. Second, Hayden did
not request leave to file his untimely new-trial motion.
Third, res judicata bars consideration of the arguments
raised in Hayden's new-trial motion (and in the affidavit
he filed after the trial court's ruling). It is well
settled that res judicata precludes a defendant from raising
in a new-trial motion any issues that were raised or could
have been raised in his direct appeal. State v.
Videen, 2d Dist. Montgomery No. 27479, 2017-Ohio-8608,
¶ 20; State v. McCoy, 2d Dist. Greene No.
04CA112, 2005-Ohio-6837, ¶ 13. Here Hayden's
arguments relied on statements by the prosecutor at trial,
testimony by Kiddon at trial, and a lab report used at trial.
Therefore, all of the arguments could have been raised
earlier. Fourth, it appears that Hayden's argument about
blood typing actually has been raised. In Hayden
VIII, we noted that "[s]amples from the vaginal
swab and vaginal aspirate collected from the victim were
examined by the Miami Valley Regional Crime Lab; the results
of the sperm fraction of the vaginal aspirate were said to be
inconclusive because the victim and Hayden had similar blood
types." Hayden VIII at ¶ 3. In Hayden
IX, Hayden argued, as he does now, that he was entitled
to a new trial because "the blood type could only be
attribute[able] to the victim." The trial court rejected
this argument, and we affirmed, reasoning:
* * * Hayden stated that "the blood type could only be
attribut[able] to the alleged victim." In the direct
appeal of Hayden's first petition for post- conviction
relief in 1999, and several times thereafter, we have noted
"a similarity of blood types" between Hayden and
the victim, which appears to have contributed to the
difficulty in reaching a definitive DNA test result under the
methods available in and before 1998. Hayden III at
*1; see also Hayden IV at ¶ 5; Hayden
V at ¶ 3; Hayden VII at ¶ 2. At no
point in this case has an expert testified, has the trial
court held, or have we stated that the "blood type could
only be attribute[able] to the victim."
Hayden IX at ¶ 34.
7} Based on the foregoing analysis, we overrule
Hayden's assignments of error and affirm the judgment of