[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. Delane y , 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-Appellan t CHRISTOPHER R. TUNNELL ADAM M. DEVORE Ashland Count y Prosecutin g Attorne y State I.D. A704-923 Richland Correctional Institute COLE F. OBERLI P.O. Box 8107 Assistant Prosecutin g Attorne y 1001 South Olivesbur g Road 110 Cotta g e Stree t Mansfield, Ohio 44901 Ashland, Ohio 44805A shland Count y , Case No. 19-COA-031 2

Hoffman, P.J. {¶1} Appellant Adam M. DeVore appeals the judgment entered by the As hland County Common Pleas Court overruling his motion for new trial. Appellee is the state of

Ohio.

STATEMENT OF THE CASE 1 {¶2} On January 12, 2017, the Ashland County Grand Jury indicted app ellant 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 vi olation 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 an d 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, an d 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 (201 9). {¶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 o f 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 c onviction and sentence. See State v. Devore , 5th Dist. Ashland No. 18-COA-011, 2018-Ohio-4189.A shland Count y , Case No. 19-COA-031 3

Appellant sought to present an affidavit sworn by Appellant’s h ousemate. In the affidavit, Appellant’s housemate represented he was to be a witness for Ap pellant at trial, but was never subpoenaed to testify, and was getting a colonoscopy on t he day before trial. The affidavit stated he received a text message from someone claimi ng to be Appellant’s attorney, stating not to worry about coming to trial because th e judge would not allow him to testify if he didn’t receive a subpoena. {¶5} The trial court found the affidavit facially demonstrated Appel lant was aware of the existence of the witness at the time of trial, and Appel lant was attempting to raise his own failure to procure the witness’s testimony at trial thr ough a motion for new trial rather than by raising the issue properly on direct appeal. Th e 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 prosecute s this appeal, assigning as er ror:

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.A shland Count y , Case No. 19-COA-031 4

{¶7} We note, this matter comes before this Court pursuant to the ac celerated calendar and App. Rule 11.1. Accordingly, it is sufficient comp liance 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 acc ordance with the

aforementioned rule.

I. {¶8} In his first assignment of error, Appellant argues the court er red in finding the affidavit attached to his motion was not newly discovered e vidence because the affidavit did not exist before trial, and further is evidence o f 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 f ind 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 it s face Appellant knew of the existence of this witness prior to trial and, as such, he was n ot 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 b arred by res judicata. {¶10} The first assignment of error is overruled.

II. {¶11} In his second assignment of error, Appellant argues the trial c ourt erred in overruling his motion for new trial because the evidence at tri al was insufficient to convict

him of domestic violence and abduction. {¶12} Appellant’s claims concerning weight and sufficiency of the evi dence were raised on direct appeal, and are now barred by res judicata.A shland Count y , Case No. 19-COA-031 5

{¶13} The second assignment of error is overruled. {¶14} The judgment of the Ashland Coun ty Common Pleas Court is affirm ed.

By: Hoffman, P.J. Delaney, J. and Wise, Earle, J. concur