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State v. Monford

Court of Appeals of Ohio, Tenth District

April 3, 2018

State of Ohio, Plaintiff-Appellee,
v.
LaRue A. Monford, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 08CR-1099

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.

          LaRue A. Monford, pro se.

          DECISION

          HORTON, J.

         {¶ 1} Defendant-appellant, LaRue A. Monford, pro se, appeals from a November 23, 2016 judgment of the Franklin County Court of Common Pleas denying his motion for leave to file a delayed motion for a new trial. For the reasons that follow, we affirm the judgment of the trial court.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} On February 15, 2008, appellant was indicted by the Franklin County Grand Jury for murder, attempted murder, felonious assault, carrying a concealed weapon, and three firearm specifications.

         {¶ 3} The relevant underlying facts of this case were fully set forth in detail in appellant's direct appeal in State v. Monford, 10th Dist. No. 09AP-274, 2010-Ohio-4732, ¶ 2-33. For purposes of this appeal, the following are the pertinent facts and procedural history. Appellant's convictions arise from an incident that occurred on the afternoon of February 7, 2008, at a bar known as D # 1 Happy Family, located on St. Clair Avenue in Columbus. On that date, Alicia Brown went to D # 1 Happy Family to meet Eugene Brown, a local disc jockey, to pick up concert tickets. Upon her arrival, Alicia saw appellant. Although the two had never previously met, they exchanged brief pleasantries. A short while later, Eugene arrived at the bar and he and Alicia sat next to one another and had a few drinks. Alicia testified that appellant shot Eugene from behind, and also shot her in the left hip and the right buttocks when she was running away. She made a positive identification of appellant in court as the shooter.

         {¶ 4} In all, there were five witnesses who testified that appellant was the shooter. Two of those witnesses were familiar with appellant and had seen him on prior occasions. Three of the witnesses viewed photo arrays and identified appellant as the shooter. An additional witness, Frank McKnight, testified that he had been acquainted with appellant for approximately 16 years and saw appellant driving away from the crime scene. A vehicle matching the description given by witnesses as the vehicle used by the suspect to drive away from the scene was located at the address listed on appellant's driver's license.

         {¶ 5} In his opening statement, appellant's counsel referenced an alibi defense, claiming appellant was not at the bar at the time of the shooting. However, appellant did not provide any evidence of an alibi. Appellant presented the testimony of Solomon M. Fulero, Ph.D., J.D., an expert witness to challenge the reliability of the appellee's identification evidence. "[Throughout the entire trial proceedings, [appellant's] theory of the case was clearly one of misidentification. His entire defense was * * * that he was simply not the shooter and that the witnesses had gotten it wrong." Monford at ¶ 74.

         {¶ 6} The jury believed the eyewitnesses. On December 17, 2008, the jury found appellant guilty of murder in the shooting death of Eugene Brown, attempted murder and felonious assault in the shooting of Alicia Brown, carrying a concealed weapon, and the three-year firearm specifications. The trial court imposed an aggregate sentence of 28 years to life in prison.

         {¶ 7} Appellant filed a timely direct appeal, asserting eight assignments of error. We found that the evidence was sufficient to support appellant's convictions for murder, attempted murder, felonious assault, and carrying a concealed weapon. Accordingly, we overruled all of appellant's assignments of error and affirmed the trial court. Monford at ¶ 131.

         {¶ 8} In the years after his trial, appellant filed several motions, petitions, and other requests with the trial court-all to no avail. On September 9, 2016, almost eight years after appellant's convictions, he filed a "Motion for Leave to File Motion for New Trial on Account of Newly Discovered Evidence and/or Due to Withholding of Exculpatory Evidence" ("motion for leave"). Appellee responded to the motion for leave, arguing that appellant failed to show that he was "unavoidably prevented" from discovering any of ...


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