[Cite as State v. Hayden , 2020-Ohio-3818.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. ROBERT O. HAYDEN Defendant-Appellant : : : : : : : : : : Appellate Case No. 28611

Trial Court Case No. 1990-CR-308 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 24th day of July, 2020.

. . . . . . . . . . . MATHIAS H. HECK JR. by HEATHER N. KETTER, Atty. Reg. No. 008447 0, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, 5th F loor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee ROBERT O. HAYDEN, #A226-375, P.O. Box 5500, Chillicothe, Ohio 4 5601 Defendant-Appellant, Pro Se

. . . . . . . . . . . . .

HALL, J.-2-

{¶ 1} Robert O. Hayden appeals from the trial court’s entry of summar y judgment against him on his pro se “Motion to Void Judgment and Set Asid e Conviction.” {¶ 2} Hayden advances two assignments of error. First, he contends th e prosecutor deprived him of a fair trial in 1990 and violated Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2 215, by presenting perjured testim ony. Second, he claims the trial court abused its discretion “when it failed to analys is [sic] Defendant-Appellant’s Criminal Rule 52(B) as required by law.” {¶ 3} The record reflects that in 1990 Hayden was convicted of raping his girlfriend. Since then, we have resolved at least 10 appeals related to Hay den'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-Ohio4025 ( 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 ); State v. Hayden , 2d Dist. Montgomery No. 27589, 2017-Ohio-9308 ( Hayden X ). In addition to an unsuccessful direct appeal, these prior actions involved numero us motions for post--3- conviction relief, DNA testing, and a new trial. 1 {¶ 4} In his most recent appeal, Hayden first argues that the trial c ourt should have set aside his conviction because the State presented false tria l testimony in 1990, thus violating his right to a fair trial and Brady . Hayden’s argument is that two prosecution witnesses presented conflicting testimony about whether sperm a nd seminal fluid were found in samples taken from the victim. Hayden cites testimony from Dr. Charles Stemple, an emergency room physician, about not detecting any sperm or s eminal fluid when examining a slide of a vaginal swab from the victim. ( See page 139 of trial transcript excerpt attached to Hayden’s December 3, 2019 appellate brief.) In light of Stemple’s testimony, Hayden contends Miami Valley Regional Crime Lab fore nsic scientist Laura Kiddon, whose work involved serology and trace evidence, presen ted false testimony when she later testified that she did find sperm and seminal fl uid in vaginal aspirate and on a vaginal swab taken from the victim. ( Id . at pages 180-183.) Hayden also cites 1990 and 1998 lab reports from Kiddon mentioning the presence of spe rm and seminal fluid in the samples she examined. He suggests that Stemple’s testimony renders these reports

from Kiddon “false.” {¶ 5} Hayden next contends the trial c ourt erred in failing to analyz e the foregoing argument as “plain error” under Crim.R. 52(B). He specifically challenges the trial court’s finding that Crim.R. 52(B) provides no remedy in the present co ntext. {¶ 6} Upon review, we find no merit in either of Hayden’s assignments of error. For

1 Of the 10 prior appeals mentioned above, the only successful on e involved the trial court's denial of post-conviction relief without a hearing. In Hayden II , we reversed and remanded for a hearing. The trial court subsequently denied pos t-conviction relief after holding a hearing, and this court affirmed in Hayden III

.-4- the reasons set forth in the trial court’s thorough ruling, we agree that Hayden’s “Motion to Void Judgment and Set Aside Conviction” is, in substance, an untimely, successive petition for post-conviction relief. ( See October 31, 2019, Decision, Order, and Entry at 8- 10.) In order for the trial court to entertain the petition, Ha yden was required to show (1) that he was unavoidably prevented from discovering the facts up on which he relies and (2) that but for constitutional error at trial no reasonable fa ctfinder would have found him guilty. R.C. 2953.23(A). {¶ 7} Most of the facts upon which Hayden relies were known at the ti me of his 1990 trial. As set forth above, he contends Stemple and Kiddon presented conflicting trial testimony about the presence of sperm and seminal fluid in samp les taken from the victim. Because that alleged conflict appears on the face of the trial record, Hayden could have raised the issue many years ago. We reach the same conclusion w ith regard to the 1990 and 1998 lab reports from Kiddon. The existence of those report s has been known for many years, and their contents have been mentioned in prior lit igation. But even on the merits, we are unpersuaded by Hayden’s argument about an allege d discrepancy between the testimony of Stemple and Kiddon. The fact that Stem ple testified about not finding sperm or seminal fluid fails to establish that Kiddon t estified falsely when she claimed to have found such evidence. Stemple’s failure to see s perm or seminal fluid on the slide that he examined does not prove Kiddon necessarily di d not see sperm or seminal fluid on the samples she reviewed. It also could be tha t the examination performed by Kiddon, a serologist, was more thorough than the e xamination performed by Stemple, an emergency room doctor. In any event, this issue could have been raised many years ago, and the trial court correctly found that res ju dicata precludes Hayden-5- from pursuing it now. ( See October 31, 2019, Decision, Order, and Entry at 10.) {¶ 8} As for Hayden’s argument about plain error and Crim.R. 52(B), t he trial court correctly held that the rule provides no remedy here. We have r ecognized that plain-error

review “is available onl y on direct appeal[.]” State v. Shabazz , 2d Dist. Greene No. 2017- CA-11, 2017-Ohio-7199, ¶ 10. Regardless, Hayden’s argument abou t Kiddon’s “false” testimony fails to establish any error at all. {¶ 9} Finally, we note that on May 13, 2020, Hayden filed a “Motion o f Correction of Record App.R. 9(c)(E).” Therein, he argues that he submitted a “statement” of the evidence on February 10, 2020, “seeking the truthfulness of the physical material evidence (semen) (sperm).” Hayden claims we improperly ordered his statement stricken from the record on February 18, 2020. His present motion appear s to ask us to order the

trial court to correct the record “to conform the truth concern ing the material evidence in

this case.” {¶ 10} Upon review, we find Hayden’s “Motion of Correction of Record A pp.R. 9(c)(E)” to be without merit. The February 10, 2020 “statement” of evidence at issue referenced the transcript from Hayden’s 1990 rape trial. It app ears that he wanted the testimony from Stemple and Kiddon discussed above to be made pa rt of the record in this appeal or, alternatively, for a narrative statement of the test imony to be prepared. On February 18, 2020, we struck Hayden’s statement from the appell ate record, finding that it was inappropriate and did not comply with App.R. 9. We noted , however, that if we needed to review transcripts of prior proceedings we would orde r them to be transferred into this appeal. Having now disposed of the substantive argume nts raised in Hayden’s appeal, we see no need for supplementing the record with any “s tatement,” which is what-6- his “Motion of Correction of Record App.R. 9(c)(E)” addresses. For present purposes, we simply have elected to consider and review the trial transcript excerpts attached to Hayden’s appellate brief, given that they involve the same unde rlying trial court case. {¶ 11} For the foregoing reasons, we overrule Hayden’s May 13, 2020 “M otion of Correction of Record App.R. 9(c)(E).” We also overrule the two assignments of error set forth above. The judgment of the Montgomery County Common Pleas Court is affirmed.

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

Copies sent to: Mathias H. Heck, Jr. Heather N. Ketter Robert O. Hayden Hon. Mary Katherine Huffman