State v. Brown

[Cite as State v. Brown, 2022-Ohio-981.]

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:

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

Plaintiff-Appellee Hon. William B. Hoffman, J.

Hon. John W. Wise, J.

-vs-

Case Nos 2021CA00106

AULETTI BROWN

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common

Pleas, Case No. 2017 CR 2362

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 24, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE L. STONE AULETTI BROWN

PROECUTING ATTORNEY PRO SE

LISA A. NEMES BELMONT CORR. INSTITUTION

ASSISTANT PROSECUTOR 68518 Bannock Road

110 Central Plaza South, Suite 510 St. Clairsville, Ohio 43950

Canton, Ohio 44702-1413

Stark County, Case No. 2021CA00106 2

Wise, John, J.

{¶1} Appellant Auletti Brown appeals the September 29, 2021, decision of the

Stark County Court of Common Pleas denying his motion for leave to file a delayed motion

for a new trial.

STATEMENT OF THE FACTS AND CASE

{¶2} Y.W. and his fiancée M.L. lived on Ingram Avenue, SW, Canton, Stark

County, Ohio, with her four children, including a three-year-old son that she had with

Y.W. M.L. is Brown’s cousin.

{¶3} On December 10, 2017, around seven o'clock in the evening, Y.W. and M.

L. were at home with their children, drinking alcohol and smoking marijuana. Y.W. left

and walked to Maggiore's Drive-thru to purchase alcohol. At approximately the same time,

Brown left his home on Maryland Avenue, SW to go to Maggiore's Drive-thru to purchase

beer and cigarettes. Brown testified that when he left home, he put his knife in his pants

pocket because he always carried a knife with him when he left his house.

{¶4} Brown and Y.W. got into a verbal and physical altercation outside the

Maggiore's drive thru on Dueber and 9th Street in Canton, Ohio. Y.W. pushed Brown to

the ground and accused Brown of slashing his car tires. Brown called 9-1-1, told the

dispatcher never mind and hung up. Both left the area and walked to their respective

homes, which were within blocks of each other. Surveillance cameras in the area

captured portions of this altercation.

Stark County, Case No. 2021CA00106 3

{¶5} M. L. testified that Brown had been told to stay away from their home

"because his drinking leads to violence.” 1T. at 1871. M.L. testified when Y.W. returned

from the drive thru he was angry. Y.W. told her that he had pushed Brown down and that

if Brown was not her cousin he would have really punched on him. 1T. at 194. M.L.

testified that she never heard a knock on the door that day, but heard Brown outside

hollering and screaming, "Mother fucker.” 1T. at 208; 3T. at 535. M.L. testified that she

saw Y.W. head for the door and she told him not to go, but Y.W. said, "I'm tired of him.”

M.L. testified that Brown came up the steps with his hands in his pockets. Y.W. took a

swing at Brown and missed. She then saw Y.W. fall to the ground. M.L. testified that

when Y.W. walked back up the steps, he was bleeding like a faucet and said, "He stabbed

me Bae" and fell. 1T. at 197. Then she heard Brown say "Yeah, Nigga" and then Brown

calmly walked away.

{¶6} On his way home, Brown hid the knife in the bushes by his neighbor's

house. Officers responding to Brown's 9-1-1 call saw Brown and observed that he fit the

physical description of Y.W.'s assailant. The officers tried to talk with Brown, but Brown

put his head down and ran. The officers eventually cornered Brown and took him into

custody. The arresting officers took photos of Brown's neck and abdomen and did not

observe any physical injuries to his neck. When Brown was initially questioned by the

police he claimed he did not know Y.W. but later admitted he went to the house to speak

with "Yoshie" and that he stabbed Y.W. claiming it was in self-defense. 3T. at 627. He

For clarity sake, the transcript of the jury trial will be referred to by volume and

1

page number as “T.”

Stark County, Case No. 2021CA00106 4

also told the detectives, "No one gets over on Auletti Brown.” At trial Brown testified that

he was being strangled when he stabbed Y.W.

{¶7} Dr. Renee Robinson, a forensic pathologist at the Stark County Coroner's

Office, performed the autopsy on Y.W. Dr. Robinson testified that she observed defensive

wounds on Y.W.'s forearms. She stated that it would have been difficult for a person to

sustain the injuries unless they were in a defensive position. She testified that the

puncture wound to Y.W.’s heart was the result of a sharp force to Y.W.'s arm and chest

in a single action and consistent with the knife in evidence. 3T. at 471-476. She testified

that the puncture to Y.W.’s heart resulted in excessive bleeding and that he lost

approximately 2 liters of blood as the result. Dr. Robinson testified that Y.W. died because

of a sharp force injury to the chest.

{¶8} At trial, Brown represented himself, called witnesses, and testified on his

own behalf. Throughout the proceedings, Brown maintained that he acted in self-defense.

After the presentation of evidence, Brown requested and was granted a jury instruction

on self-defense.

{¶9} The jury found Brown guilty of murder and felonious assault. The trial court

found Brown guilty of the Repeat Violent Offender Specification. The State agreed that

the felonious assault conviction merged into the murder conviction and elected for

sentencing on the murder charge.

{¶10} The trial court imposed a fifteen (15) years to life sentence on the murder

conviction and a ten (10) year sentence on the repeat violent offender specification and

ordered the sentences to run consecutively for an aggregate sentence of twenty-five (25)

years to life in prison.

Stark County, Case No. 2021CA00106 5

{¶11} Appellant appealed, challenging the trial court’s denial of his motion to

suppress and also arguing that his convictions were against the manifest weight of the

evidence.

{¶12} By Opinion and Entry dated June 3, 2019, this Court overruled Appellant’s

two assignments of error and upheld Appellant’s conviction. See State v. Brown, 5th Dist.

Stark No. 2018CA00107, 2019-Ohio-2187.

{¶13} On October 17, 2019, Appellant filed a petition for postconviction relief,

asserting a violation of the rule announced in Brady v. Maryland, 373 U.S. 83, 87 (1963).

{¶14} By Judgment Entry file December 23, 2019, the trial court denied the

petition.

{¶15} In January 2020, Appellant attempted to file a delayed appeal of this Court's

decision. The Supreme Court of Ohio denied Appellant's motion for leave to file a delayed

appeal on March 12, 2020. State v. Brown, 158 Ohio St.3d 1421, 2020-Ohio-647,

reconsideration denied, 158 Ohio St.3d 1508, 2020-Ohio-2819.

{¶16} In June 2020, Appellant filed a series of motions related to his request for a

new trial.

{¶17} By Judgment Entry filed September 29, 2021, the trial court overruled

Appellant's motion to strike the State's brief on the matter and denied Appellant's request

for leave to file a delayed motion for a new trial.

{¶18} Appellant filed three separate notices of appeal of the September 29, 2021,

judgment entry: Case No. 2021CA00106, filed October 12, 2021; Case No.

2021CA00115, filed October 19, 2021; and, Case No. 2021CA00123, filed November 4,

2021

Stark County, Case No. 2021CA00106 6

{¶19} In Case No. 2021CA00123, this Court requested additional information from

Appellant regarding the timeliness of the appeal due to the fact the November 4, 2021,

notice purported to appeal the trial court's September 29, 2021, Judgment Entry.

Appellant responded with a “judicial notice" filed December 8, 2021, requesting this Court

strike Case Nos. 2021CA00115 and 2021CA00123, and proceed under his original notice

of appeal in Case No. 2021CA00106.

{¶20} In his merit brief, Appellant raises a single assignment of error:

ASSIGNMENT OF ERROR

{¶21} “I. TRIAL COURTS [SIC] ABUSE OF DISCRETION.”

I.

{¶22} In his sole Assignment of Error, Appellant argues the trial court erred by

overruling his motion for leave to file a delayed motion for a new trial. We disagree.

{¶23} Ohio Rule of Criminal Procedure 33 governs a motion for new trial, stating

in pertinent part:

(A) Grounds. A new trial may be granted on motion of the defendant

for any of the following causes affecting materially his substantial rights:

...

(6) When new evidence material to the defense is discovered which

the defendant could not with reasonable diligence have discovered and

produced at the trial. When a motion for a new trial is made upon the ground

of newly discovered evidence, the defendant must produce at the hearing

on the motion, in support thereof, the affidavits of the witnesses by whom

such evidence is expected to be given, and if time is required by the

Stark County, Case No. 2021CA00106 7

defendant to procure such affidavits, the court may postpone the hearing of

the motion for such length of time as is reasonable under all the

circumstances of the case. The prosecuting attorney may produce affidavits

or other evidence to impeach the affidavits of such witnesses.

(B) Motion for New Trial; Form, Time.

...

Motions for new trial on account of newly discovered evidence shall

be filed within one hundred twenty days after the day upon which the verdict

was rendered, or the decision of the court where trial by jury has been

waived. If it is made to appear by clear and convincing proof that the

defendant was unavoidably prevented from the discovery of the evidence

upon which he must rely, such motion shall be filed within seven days from

an order of the court finding that he was unavoidably prevented from

discovering the evidence within the one hundred twenty day period.

(B) Affidavits required. The causes enumerated in subsection (A)(2)

and (3) must be sustained by affidavit showing their truth, and may be

controverted by affidavit.

{¶24} “Motions for new trial pursuant to Crim.R. 33(B) is addressed to the sound

discretion of the trial court.” State v. Schiebel, 55 Ohio St.3d 71, 76, 564 N.E.2d 54, 62

(1990). The decision of whether to hold an evidentiary hearing on a motion for leave to

file a motion for new trial is also within the discretion of the trial court. State v. Thornton,

5th Dist. Muskingum No. CT2016-0041, 2017-Ohio-637, ¶39. The abuse of discretion

standard is more than an error of judgment; it implies the court ruled arbitrarily,

Stark County, Case No. 2021CA00106 8

unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140, 1142 (1983).

{¶25} The verdict in Appellant's case was rendered on June 22, 2018, but his first

motion for leave to file delayed motion for a new trial was not filed until November 9,

20202. “Because Appellant's motion was filed well outside the 120-day period, he was

required to obtain leave of court to file his motion for new trial.” State v. Waddy, 10th Dist.

No. 15AP-397, 2016-Ohio-4911, 68 N.E.3d 381, ¶17. To obtain such leave, the defendant

must demonstrate by clear and convincing proof that he or she was unavoidably

prevented from discerning the evidence within the 120 days. Id. A party is “unavoidably

prevented” from filing a motion for a new trial if they had no knowledge of the ground

supporting the motion and could not have learned of the existence of that ground within

the time prescribed for filing the motion in the exercise of reasonable diligence.” Id.

quoting State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859, 865 (10th Dist.

1984).

{¶26} Appellant's proof must be more than conclusory allegations. “Clear and

convincing proof that the defendant was ‘unavoidably prevented’ from filing ‘requires more

than a mere allegation that a defendant has been unavoidably prevented from discovering

the evidence he seeks to introduce as support for a new trial.’ ” State v. Lee, 10th Dist.

Franklin No. 05AP-229, 2005-Ohio-6374, ¶9. The requirement of clear and convincing

evidence puts the burden on the defendant to prove he was unavoidably prevented from

discovering the evidence in a timely manner. State v. Rodriguez-Baron, 7th Dist.

On December 8, 2020, Appellant filed a second Motion for Leave to File a

2

Delayed Motion for New Trial, asking the trial court to accept the December 8, 2020,

motion in place of the November 9, 2020, motion.

Stark County, Case No. 2021CA00106 9

Mahoning No. 12-MA-44, 2012-Ohio-5360, ¶11. Clear and convincing proof is that “which

will produce in the mind of the trier of facts a firm belief of conviction as to the facts sought

to be established.” Schiebel, supra at 74.

{¶27} The “unavoidably prevented” requirement in Crim.R. 33 mirrors the

“unavoidably prevented” requirement in R.C. §2953.23. Thornton at ¶47. “The phrase

‘unavoidably prevented’ means that a defendant was both unaware of the facts and was

unable to learn of them through reasonable diligence.” Id.

{¶28} Thus, the central inquiry in Appellant's motion for leave to file a motion for

a new trial is whether he was unaware of the facts disclosed by the evidence and whether

he was unavoidably prevented from obtaining that information through reasonable

diligence.

{¶29} Here, Appellant argues that forensic analysis of the video of his police

interview reveals that it was “not in fact true, complete and correct.” (Motion for Leave at

2). Appellant appears to claim that multiple versions of the recordings and transcripts

exist.

{¶30} Upon review, we find that Appellant has failed to support his motion with

any affidavits of documentary evidence. We further find that Appellant did not discover

any “new evidence”. The recordings and transcripts of the recordings existed at the time

of the trial. Appellant even asserted these claims during his trial. The trial court stated that

the video, audio, and transcription of Appellant’s interview were made available to

Appellant prior to his June 18, 2018, trial and that Appellant had heard and seen the video

as early as April 19, 2018, at the suppression hearing.

Stark County, Case No. 2021CA00106 10

{¶31} As such, Appellant was not unavoidably prevented from discovering

whatever evidence he is claiming supports his arguments as it relates to the analysis of

the video. Therefore, the trial court did not abuse its discretion in denying Appellant's

motion without conducting an evidentiary hearing.

{¶32} Appellant’s sole Assignment of Error is overruled.

{¶33} The judgment of the Court of Common Pleas of Stark County, Ohio, is

affirmed.

By: Wise, John, J.

Wise, Earle, P. J., and

Hoffman, J., concur.

JWW/0316