Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-15-595823-A
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
McCORMACK, PRESIDING JUDGE.
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.
and Substantive History
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
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
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.
Herring appealed his conviction. This court affirmed his
conviction and overruled his seven assignments of error.
State v. Herring, 8th Dist. Cuyahoga No. 104441,
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
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
On June 12, 2017, the state filed a brief in opposition to