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State v. Herring

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 5, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
KRYAN B. HERRING DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-595823-A

          FOR APPELLANT Kryan B. Herring, pro se.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Anthony Thomas Miranda Assistant County Prosecutor Justice Center.

          BEFORE: McCormack, P.J., Blackmon, J., and Keough, J.

          JOURNAL ENTRY AND OPINION

          TIM McCORMACK, PRESIDING JUDGE.

         {¶1} Defendant-appellant Kryan B. Herring ("Herring") appeals the trial court's failure to hold an evidentiary hearing on his motion for a new trial and its ultimate denial of that motion. For the reasons that follow, we affirm the trial court's decision.

         Procedural and Substantive History

         {¶2} The underlying case stems from an incident between Herring and Tawana L. Sain ("Sain") in late April 2015. Herring and Sain had a relationship in the past. The two had a child together. That child lived with Sain and Sain's two other children. Herring and Sain got into an argument one night. The next day, Herring returned to Sain's home in an attempt to get his car keys. Herring, believing that Sain was hiding his keys, attacked her. Herring also injured his daughter. Ultimately, Herring took Sain's car and left her house with both her phone and their daughter's phone. Later that day, Herring returned to the home, broke in through the back door, and resumed searching for his car keys. Sain's teenage daughter was the only person home at the time. Herring left the house before the daughter could summon help.

         {¶3} On May 26, 2015, Herring was indicted on one count of aggravated burglary, two counts of robbery, one count of disrupting public service, one count of grand theft, one count of domestic violence, and one count of endangering a child.

         {¶4} Herring pleaded not guilty to all counts, and the case proceeded to a jury trial. On April 7, 2016, a jury found Herring guilty of all charges. He was ultimately sentenced to 19 years and 6 months in prison.

         {¶5} Herring appealed his conviction. This court affirmed his conviction and overruled his seven assignments of error. State v. Herring, 8th Dist. Cuyahoga No. 104441, 2017-Ohio-743.

         {¶6} On April 10, 2017, Herring filed a petition for postconviction relief, arguing that his trial counsel was ineffective for failing to consult with him about pretrial continuances. The trial court denied this petition on April 27, 2017.

         {¶7} On June 5, 2017, Herring filed a motion for a new trial. In this motion, Herring argues that the nature and status of Herring's relationship with Sain was at issue during the trial, and that emails sent from Sain to Herring since trial establish that their relationship has continued. This, according to Herring, constitutes newly discovered evidence under Crim.R. 33 that would warrant a new trial. Herring states in the motion that it "is being filed in conjunction with a Motion for Leave to File a Motion for a New Trial, " but no such motion appears on the docket or elsewhere in the record. In his memorandum in support of the motion, Herring states that the emails from Sain are attached as exhibits to the motion, but it appears that the exhibits were not attached, and no such exhibits exist elsewhere in the record.

         {¶8} On June 12, 2017, the state filed a brief in opposition to ...


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