[Cite as State v. Smith, 2016-Ohio-7904.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

RONALD A. SMITH 

Defendant-Appellant 

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Appellate Case No. 27015 

Trial Court Case No. 2004-CR-3554 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 23rd day of November, 2016. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by MEAGAN D. WOODALL, Atty. Reg. No. 0093466, 

Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts 

Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 

 Attorney for Plaintiff-Appellee 

 

RONALD SMITH, No. 516-443, Trumbull Correctional Institution, Post Office Box 901, 

Leavittsburg, Ohio 44430 

 Defendant-Appellant, pro se 

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HALL, J. 

{¶ 1} Ronald Smith appeals pro se from a final judgment denying his motion for a 

new trial and his motion for leave to file a motion for a new trial, based on a claim of newly 
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discovered evidence. 

I. Background 

{¶ 2} In 2005, Smith was found guilty of aggravated burglary and aggravated 

robbery. The trial court sentenced him to consecutive ten-year prison terms, for a total 

sentence of twenty years. We affirmed Smith’s convictions on direct appeal, in State v. 

Smith, 2d Dist. Montgomery Nos. 21463, 22334, 2008-Ohio-6330. In our opinion, we set 

forth the facts of this case as follows: 

During the evening hours of September 27, 2004, two African–

American males, one identifying himself as “Little Ronnie,” kicked in the 

front door of Latisha Robinson’s apartment and entered. The man 

identifying himself as Little Ronnie, was armed with a gun. He got in her 

face and demanded to know where her boyfriend, Corey Pullings, was. The 

other man went to her back door and opened it, allowing three additional 

men to enter the apartment. 

When Robinson denied any knowledge of Pullings, Little Ronnie 

went upstairs in the apartment, tearing the handrail off the wall, and he went 

into Robinson’s bedroom putting the gun to her son’s head. He then 

demanded Robinson give him something to get him to leave. Robinson 

gave one of the men sixty dollars and her cell phone. 

Meanwhile, the four men downstairs ransacked Robinson’s 

apartment, toppling furniture and rummaging through boxes, throwing 

things to the floor. The men took additional items from the apartment, 

including radios and CD’s. During the ransacking of the apartment, the 
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gunman, who repeatedly identified himself as “Little Ronnie,” and Robinson 

were engaged in a confrontation in the dining room where he attempted to 

force Robinson to lay on the floor “like execution style.” Finally, after the 

other men exited the apartment, “Little Ronnie” ran out, too. 

Robinson then escaped to a neighbor’s apartment, where the police 

were called. The next day, Detective Ward, of the Montgomery County 

Sheriff’s Office prepared a photo spread containing a picture of Ronald 

Smith, the only individual the detective knew that called himself “Little 

Ronnie.” Robinson could not identify anyone in the photo spread. 

Subsequently, when Robinson was viewing serial photos on the detective’s 

computer screen, a photo of Smith came up, showing his gold teeth that 

were not displayed in the prior photo. Robinson indicated that this picture of 

Smith “could possibly be the person who was in her house.” 

Subsequently, a neighbor, who had opened his door while Smith and 

the others were knocking at Robinson’s door, immediately picked out Smith 

from a photo spread as the man at her door, and who had identified himself 

as Little Ronnie. 

Smith was arrested. After being Mirandized, Smith admitted that he 

and four others went to Robinson's apartment looking for Corey Pullings, 

but claimed that he left after being told that he was not there. He claimed 

that one of the other men kicked in the door and entered, but denied that he 

ever entered the apartment. Prior to trial, Smith made a number of phone 

calls attempting to get Robinson to take a payoff to drop the charges, and 
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attempting to set up an excuse for why he was in the area. 

Smith at ¶ 3-8. 

{¶ 3} The motions that are the subject of this appeal are by our count Smith’s 

thirteenth and fourteenth separate motions for a new trial, or for leave to file such a 

motion, since his conviction in 2005. Smith filed his “Motion for New – Trial Pursuant to 

Newly Discovered Evidence Crim R. 33” on October 29, 2015. This motion was supported 

by an affidavit of Nancy C. Duke to the effect that she observed Smith driving away from 

the apartment complex where the offenses occurred for which he is in prison, and she 

then saw another person kick in the door to an apartment. Smith also filed his “Motion for 

A Order Granting Leave to file A Motion for New – Trial Crim. R. 33(B)” on October 30, 

2015, supported by essentially the same evidence. 

{¶ 4} With regard to the October 29th new trial motion, the trial court overruled that 

motion, by a decision and order filed February 3, 2016, for the reason that Smith did not 

follow Crim. R. 33(B) by requesting leave of court to file the motion for a new trial before 

the actual motion was filed. Indeed, if a defendant intends to file a motion for a new trial 

based on newly discovered evidence after more than 120 days, the defendant must first 

seek leave of court before the new trial motion itself can be filed. He “must first file a 

motion for leave, showing by ‘clear and convincing proof that he has been unavoidably 

prevented from filing a motion in a timely fashion.’ ” State v. Parker, 178 Ohio App.3d 574, 

2008–Ohio–5178, 899 N.E.2d 183, ¶ 15 (2d Dist.), quoting State v. Morgan, 3d Dist. 

Shelby No. 17–05–26, 2006–Ohio–145, ¶ 7. The trial court was correct to overrule the 

new trial motion itself which was filed without first obtaining leave. 

{¶ 5} With regard to Smith’s October 30th motion for leave to file his new trial 
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motion, the trial court overruled that motion in a detailed decision and order filed 

February 2, 2016. 

{¶ 6} Attached to the motion for leave is Smith’s own affidavit, an affidavit from a 

woman named Nancy Duke, and a letter dated September 18, 2015, that Duke sent 

Smith. Duke states in her affidavit that she saw Smith drive away from the apartment 

building before the crime occurred. And she states that she saw a man named LaQwan 

Scandrick kick in the door and enter the apartment. Duke states that Scandrick is also 

known as “Little Ronnie” and also has gold teeth and braids. In her letter, Duke tells Smith 

what she saw. She says that, at the time, she was afraid to come forward. But she says 

that she looked up Scandrick recently and discovered that he is serving a life sentence 

for murder, so she no longer has any reason to fear him. Smith states in his affidavit that 

he did not know until he received Duke’s letter that she was at the scene and saw what 

she claims to have seen. 

{¶ 7} The trial court overruled without a hearing the motion for leave to file a newtrial motion and the motion for a new trial itself. The trial court concluded that Smith was 

not unavoidably prevented from discovering the facts alleged in Duke’s affidavit. In 

addition, it concluded that Smith failed to show that Duke’s affidavit creates a strong 

probability that he would be acquitted in a new trial. 

{¶ 8} Smith appealed. 

II. Analysis 

{¶ 9} Smith assigns two errors to the trial court. The first alleges that the court 

abused its discretion by overruling his motion for leave to file the new-trial motion. And 

the second alleges that the court abused its discretion by overruling the motion for a new 
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trial. We have already determined, at ¶ 4, supra, that the trial court correctly overruled the 

motion for a new trial because it was filed without leave of court. We focus the remainder 

of our analysis on whether the trial court correctly overruled the request for leave to file 

the new trial motion. 

The decision whether to grant a motion for a new trial lies within the 

sound discretion of the trial court and will not be disturbed on appeal absent 

an abuse of that discretion. State v. Schiebel (1990), 55 Ohio St.3d 71, 564 

N.E.2d 54. 

“Abuse of discretion” has been defined as an attitude that is 

unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc.

(1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. It 

is to be expected that most instances of abuse of discretion will result in 

decisions that are simply unreasonable, rather than decisions that are 

unconscionable or arbitrary. 

* * * 

Pursuant to Crim.R. 33(A)(6), a new trial may be granted when new 

evidence material to the defense is discovered that the defendant could not 

with reasonable diligence have discovered and produced at trial. To prevail 

on a motion for new trial based upon newly discovered evidence, Defendant 

must show that the new evidence: (1) discloses a strong probability that the 

result of the trial would be different if a new trial were granted; (2) has been 

discovered since the trial; (3) is such as could not have been discovered 

before the trial through the exercise of due diligence; (4) is material to the 
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issues; (5) is not merely cumulative to former evidence; and (6) does not 

merely impeach or contradict the former evidence. State v. Petro (1947), 

148 Ohio St. 505, 76 N.E.2d 370. 

Motions for a new trial based upon newly discovered evidence must 

be filed within one hundred twenty days after the verdict was rendered 

unless it appears by clear and convincing proof that Defendant was 

unavoidably prevented from discovering the new evidence, in which case 

the motion for new trial must be filed within seven days from the order of the 

court finding that Defendant was unavoidably prevented from discovering 

the new evidence within the one hundred twenty day period. Crim.R. 33(B). 

State v. DeVaughns, 2d Dist. Montgomery No. 23720, 2011-Ohio-125, ¶ 16-20. 

{¶ 10} The guilty verdicts in this case were returned by the jury in September 2005. 

Smith filed his motions in October 2015, over ten years later. Being obviously untimely, 

he was required to demonstrate by clear and convincing proof that he was unavoidably 

prevented from discovering the new evidence within 120 days after the guilty verdicts 

were rendered. The trial court concluded that Smith failed to do that. The court found that 

Duke is “not a disinterested or impartial witness,” noting that in the letter she tells Smith, 

“I want you to know I miss you and I have love for you.” The court found persuasive the 

State’s argument that Duke had almost 9 years to check Scandrick’s status and come 

forward. And when she did come forward, instead of going to the police, Duke mailed a 

letter with her affidavit to Smith. Smith’s and Duke’s affidavits, said the court, must be 

viewed in the context of Smith’s “repeated efforts to obstruct justice in this case, both 

before and after the trial, including the prior filing of a false affidavit.” And the court said 
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that the affidavits must be weighed against the testimony and evidence presented at trial. 

{¶ 11} Smith’s twelfth motion for a new trial was also purportedly based on newly 

discovered evidence and the evidence then was the testimony of one Theron Lewis who 

claimed to have witnessed the crime. Lewis was a fellow prison inmate who stated in his 

affidavit that he was present when this crime occurred and that he too saw Scandrick kick 

open the door to the apartment and go inside. In his own affidavit, Smith claimed that he 

was unavoidably prevented from discovering this new evidence because he did not know 

the affiant until they met in prison. The trial court summarily overruled this motion too, 

finding that Smith failed to demonstrate that he was unavoidably prevented from 

discovering the new evidence. The court then also found that Smith’s affidavit was not 

credible. This finding was based in part on the timing of his affidavit, signed just 22 days 

after the Ohio Supreme Court had affirmed his conviction. The trial court said that Smith’s 

discovery of a new exculpatory witness just a short time after his conviction was upheld 

was “an incredible coincidence.” The court also based its credibility finding on Smith’s 

repeated attempts to obstruct justice in this case, both before and after the trial, and his 

filing of a false affidavit from another witness in support of a previous motion for a new 

trial. We found no abuse of discretion in the trial court’s denial of Smith’s twelfth motion 

for a new trial on the basis of the incredibility of Smith’s affidavit. State v. Smith, 2d Dist. 

Montgomery No. 23945, 2011-Ohio-2189, ¶ 21. In addition, we said that even if Smith 

had demonstrated that he was unavoidably prevented from discovering the facts alleged 

in the witness’s affidavit, in light of the evidence that was presented at the trial, Smith 

failed to demonstrate a strong probability that this new evidence would change the result 

of the trial. Id. at ¶ 22-26. 
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{¶ 12} We can’t help but notice, as did the trial court, that not only are the 

circumstances of how Smith submitted Nancy Duke’s gratuitous “Affitdavit [sic]” 

suspicious, the contents of the document itself and her letter to Smith, which was also 

attached to Smith’s motion for leave, are suspicious on their face. Duke’s letter indicates 

she is submitting the unsolicited “affitdavit [sic]” “to clear my conscious [sic].” (Emphasis 

added.) This is eerily similar to LaQwan Scandrick’s 2009 “Sworn Affitdavit [sic]” which 

was filed in support of a previous motion and which was also attached to Smith’s 

October, 29, 2015 new trial motion. Scandrick had also said he was gratuitously coming 

forward because “it would be on my conscious [sic].” Furthermore, Duke’s rendition of 

events at the subject apartment is contrary to that in Scandrick’s sworn statement, and, 

more importantly, contrary to Smith’s own statement to detectives. Duke’s letter states 

that she saw Smith driving away from the apartments “with some b**** in the car” and her 

affidavit says, after he was seen driving away, she then saw Scandrick kick in the door to 

the apartment. But Smith’s own version of events, which we repeated in ¶2 above from 

our opinion in his direct appeal, is that Smith was at the apartment door when one of the 

other men he was with kicked in the door, but he, Smith, did not go in. And, Scandrick’s 

affidavit says that while he and his accomplices were at the apartment “some other dude 

walked up to the door next to us he had braids and gold teeth,” presumably describing 

Ronald Smith. Duke’s statement that she saw Smith leave and then Scandrick arrive and 

kick in the door is therefore inconsistent with both Smith’s and Scandrick’s rendition of 

events. 

{¶ 13} After review of all the facts and circumstances we find no abuse of discretion 
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in the trial court’s denial of Smith’s motion for leave to file a motion for a new trial, for the 

reasons given by the court. And for the same reasons as those we gave in our review of 

his twelfth new-trial motion, even if Smith had demonstrated that he was unavoidably 

prevented from discovering the facts alleged in Duke’s affidavit, he fails to show a strong 

probability that this new evidence would change the result of the trial. The trial court did 

not err by overruling Smith’s motion for leave to file a motion for a new trial or by overruling 

his motion for a new trial. 

{¶ 14} Both assignments of error are overruled. 

III. Conclusion 

{¶ 15} The trial court’s judgment is affirmed. 

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DONOVAN, P.J., and WELBAUM, J., concur. 

Copies mailed to: 

Mathias H. Heck 

Meagan D. Woodall 

Ronald A. Smith 

Hon. Gregory F. Singer