[Cite as State v. DeVore, 2020-Ohio-1132.]

COURT OF APPEALS 

ASHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO JUDGES: 

 Hon. William B. Hoffman, P.J 

 Plaintiff-Appellee Hon. Patricia A. Delaney, J. 

 Hon. Earle E. Wise, Jr., J. 

-vs- 

 Case No. 19-COA-031 

ADAM M. DEVORE 

 

 Defendant-Appellant O P I N IO N 

 

CHARACTER OF PROCEEDINGS: Appeal from the Ashland County Court of 

Common Pleas, Case No. 17-CRI-002 

 

JUDGMENT: Affirmed 

 

DATE OF JUDGMENT ENTRY: March 23, 2020 

APPEARANCES: 

 

For Plaintiff-Appellee For Defendant-Appellant

 

CHRISTOPHER R. TUNNELL ADAM M. DEVORE 

Ashland County Prosecuting Attorney State I.D. A704-923 

 Richland Correctional Institute 

COLE F. OBERLI P.O. Box 8107 

Assistant Prosecuting Attorney 1001 South Olivesburg Road 

110 Cottage Street Mansfield, Ohio 44901 

Ashland, Ohio 44805 

 

 
Ashland County, Case No. 19-COA-031 2 

Hoffman, P.J. 

{¶1} Appellant Adam M. DeVore appeals the judgment entered by the Ashland 

County Common Pleas Court overruling his motion for new trial. Appellee is the state of 

Ohio. 

STATEMENT OF THE CASE1

{¶2} On January 12, 2017, the Ashland County Grand Jury indicted appellant on 

one count of rape in violation of R.C. 2907.02(A)(2), one count of abduction in violation 

of R.C. 2905.02(A)(2), and one count of domestic violence in violation of R.C. 2919.25(A). 

Following jury trial in the Ashland County Common Pleas Court, Appellant was acquitted 

of rape, but convicted of abduction and domestic violence. The trial court sentenced 

appellant to 36 months in prison on the abduction conviction and to 36 months in prison 

on the domestic violence conviction, to be served consecutively to one another for an 

aggregate prison sentence of 72 months. 

{¶3} This Court affirmed the judgment of conviction and sentence, and the Ohio 

Supreme Court denied Appellant's appeal. State v. Devore, 5th Dist. Ashland No. 18-

COA-011, 2018-Ohio-4189, ¶¶ 40-41, appeal not allowed, 154 Ohio St.3d 1502, 2019-

Ohio-345, 116 N.E.3d 155, ¶¶ 40-41 (2019), and appeal not allowed, 155 Ohio St.3d 

1457, 2019-Ohio-1759, 122 N.E.3d 217, ¶¶ 40-41 (2019), reconsideration denied, 156 

Ohio St.3d 1467, 2019-Ohio-2892, 126 N.E.3d 1177, ¶¶ 40-41 (2019). 

{¶4} On August 14, 2019, Appellant filed a motion for leave to file a delayed 

motion for new trial, and a motion for new trial on the basis of newly discovered evidence. 

 

1 A rendition of the facts is unnecessary for our resolution of the issues raised in this appeal, but can be 

found in this Court's opinion on direct appeal of Appellant's conviction and sentence. See State v. Devore, 

5th Dist. Ashland No. 18-COA-011, 2018-Ohio-4189. 
Ashland County, Case No. 19-COA-031 3 

Appellant sought to present an affidavit sworn by Appellant’s housemate. In the affidavit, 

Appellant’s housemate represented he was to be a witness for Appellant at trial, but was 

never subpoenaed to testify, and was getting a colonoscopy on the day before trial. The 

affidavit stated he received a text message from someone claiming to be Appellant’s 

attorney, stating not to worry about coming to trial because the judge would not allow him 

to testify if he didn’t receive a subpoena. 

{¶5} The trial court found the affidavit facially demonstrated Appellant was aware 

of the existence of the witness at the time of trial, and Appellant was attempting to raise 

his own failure to procure the witness’s testimony at trial through a motion for new trial 

rather than by raising the issue properly on direct appeal. The trial court concluded the 

testimony of the witness was not newly discovered evidence and overruled the motion for 

new trial. 

{¶6} It is from the September 20, 2019 judgment of the court denying his motion 

for new trial Appellant prosecutes this appeal, assigning as error: 

 I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE 

APPELLANT IN FINDING THAT THE APPELLANT WAS NOT 

UNAVOIDABLY PREVENTED FROM DISCOVERING NEW EVIDENCE. 

 II. THE TRIAL COURT ERRED TO THE PREJUDICE OF 

APPELLANT’S RIGHT TO A FAIR TRIAL, AND RIGHT TO TRIAL BY JURY 

WHEN IT FAILED TO CORRECT MANIFEST CONSTITUTIONAL ERROR 

BY ORDERING A NEW TRIAL. 
Ashland County, Case No. 19-COA-031 4 

{¶7} We note, this matter comes before this Court pursuant to the accelerated 

calendar and App. Rule 11.1. Accordingly, it is sufficient compliance with Appellate Rule 

12(A) for the statement of the reason for the court's decision as to each error to be in brief 

and conclusionary form. This appeal shall be considered in accordance with the 

aforementioned rule. 

I. 

{¶8} In his first assignment of error, Appellant argues the court erred in finding 

the affidavit attached to his motion was not newly discovered evidence because the 

affidavit did not exist before trial, and further is evidence of the trial court’s efforts to keep 

defense witnesses from testifying at trial. 

{¶9} For the reasons stated in the judgment of the trial court, we find the court 

did not err in finding the evidence was not newly discovered. While the affidavit itself did 

not exist before trial, the affidavit clearly establishes on its face Appellant knew of the 

existence of this witness prior to trial and, as such, he was not unavoidably prevented 

from discovering this evidence. Any alleged error in the trial court’s exclusion of witnesses 

at trial should have been raised on direct appeal, and is now barred by res judicata. 

{¶10} The first assignment of error is overruled. 

II. 

{¶11} In his second assignment of error, Appellant argues the trial court erred in 

overruling his motion for new trial because the evidence at trial was insufficient to convict 

him of domestic violence and abduction. 

{¶12} Appellant’s claims concerning weight and sufficiency of the evidence were 

raised on direct appeal, and are now barred by res judicata. 
Ashland County, Case No. 19-COA-031 5 

{¶13} The second assignment of error is overruled. 

{¶14} The judgment of the Ashland County Common Pleas Court is affirmed. 

By: Hoffman, P.J. 

Delaney, J. and 

Wise, Earle, J. concur