COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59247 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DONALD RICHARD, SR. : : Defendant-appellant : : DATE OF ANNOUNCEMENT : NOVEMBER 14, 1991 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-21417 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES PAUL D. VIDENSEK, ESQ. Cuyahoga County Prosecutor 3376 East 55th Street George J. Sadd Cleveland, OH 44127 Assistant County Prosecutor The Justice Center DONALD L. RICHARD, SR. 1200 Ontario Street #A197168 Cleveland, OH 44113 Lorain Correctional Institute 2075 Avon-Belden Road Grafton, OH 44044 - 2 - PATTON, J., Defendant-appellant, Donald Richard, Sr. was convicted of felonious assault in violation of R.C. 2903.11 with firearm and aggravated felony specifications. This court affirmed his convictions in State v. Richard (June 16, 1988), Cuyahoga App. No. 54040, unreported. We also affirmed the denial of appellant's petition for post-conviction relief filed January 9, 1989. See State v. Richard (February 15, 1990), Cuyahoga App. No. 57960, unreported. On May 17, 1989, appellant filed a motion for new trial based upon newly discovered evidence. The common pleas court denied this motion and appellant timely appeals the ruling. Upon review of the record, we affirm the trial court's decision. Appellant's assignments of error provide: I. THE TRIAL COURT COMMITTED ERROR AND/OR ABUSED ITS DISCRETION TO THE PREJUDICE OF THE APPELLANT IN OVERRULING MOTION FOR NEW TRIAL; NEWLY DISCOVERED EVIDENCE, WHEN, MOTION CONTAINED SUFFICIENT OPERATIVE FACTS (DOCU- MENTATION), SUBMITTED, FOR THE COURT TO GRANT A NEW TRIAL, VIOLATING THE APPELLANT'S FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10, OF THE OHIO CONSTITUTION. II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND/OR ABUSED ITS DISCRETION, WHEN, OVERRUL- ING APPELLANT'S MOTION FOR NEW TRIAL; NEWLY DISCOVERED EVIDENCE, WHERE DOCUMENTS SUB- MITTED WERE SUFFICIENT OPERATIVE FACTS TO SUSTAIN THAT THE APPELLANT HAS BEEN DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, WHERE COUNSEL'S FAILURE TO INVESTIGATE AND PREPARE A DEFENSE FOR HIS CLIENT'S TRIAL. SAID DEFICIENCIES OF TRIAL COUNSEL'S PERFORMANCE DENIED THE APPELLANT HIS DUE - 3 - PROCESS AND EQUAL PROTECTION OF LAW, RIGHTS TO A FAIR TRIAL IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10, OF THE OHIO CONSTITUTION. III. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION TO THE PREJUDICE OF THE APPELLANT, WHEN OVERRULING MOTION FOR NEW TRIAL; NEWLY DISCOVERED EVIDENCE; WHEN THE MOTION ALLEGED GRAND JURY AND/OR GOVERNMENTAL MISCONDUCT, VIOLATING APPELLANT'S FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10, OF THE OHIO CONSTITUTION. In his assignments of error appellant challenges the denial of his motion for a new trial. A ruling on such a motion rests within the sound discretion of the court and, absent an abuse of that discretion, the ruling will not be disturbed on appeal. State v. Schiebel (1990), 55 Ohio St. 3d 71, syllabus paragraph one; State v. Williams (1975), 43 Ohio St. 2d 88. To warrant a new trial, a defendant must demonstrate, inter alia, that the newly discovered evidence "discloses a strong probability that it will change the result of a new trial if granted ***." State v. Petro (1947), 148 Ohio St. 505, syllabus. See, also, State v. Smith (1986), 30 Ohio App. 3d 138; State v. Shepard (1983), 13 Ohio App. 3d 117. Appellant's convictions stem from the felonious assault of Donnie Garner. On the evening of November 25, 1986 appellant was observed exiting a house carrying a rifle. According to the testimony adduced at trial, appellant fired a shot into the driver's side window of a vehicle containing Donnie Garner and - 4 - Gary Lenart. Upon impact the shot exploded the window causing glass to be deposited in Garner's eyes and about his face. See State v. Richard (June 16, 1988), Cuyahoga App. No. 54040, unreported. Appellant's defense at trial was based upon an alibi. Appellant attached two documents in support of his May 17, 1989 motion for new trial. Exhibit (A) was a copy of a police incident report dated November 28, 1986. Exhibit (B) was an information request form dated April 6, 1989 which indicated the clerk of courts had no record of title for a 1977 Chevrolet issued to Donnie Garner. The 1977 Chevrolet was the vehicle in which Donnie Garner and Gary Lenart occupied when the shot exploded the window. Appellant points out that the police incident report of November 28, 1986 states that the weapon used in the felonious assault of Donnie Garner was a handgun rather than a rifle as was testified at trial. While the above represents a minor discrepancy, it fails to disclose a strong probability that the result of the trial would change if a new trial were granted. We note that a handgun or a rifle may constitute a firearm and a deadly weapon as statutorily defined. R.C. 2923.11(A) and R.C. 2923.11(B). Thus, the inconsistency is insufficient to grant the appellant a new trial. Next appellant argues that the police incident report identifies a Sergeant Englehart as the investigating officer but - 5 - the state's witness list did not include Englehart which prejudiced the appellant. Crim. R. 16(B)(1)(e) provides in part: (e) Witness names and addresses; record. Upon motion of the defendant, the court shall order the prosecuting attorney to furnish to the defendant a written list of the names and addresses of all witnesses whom the prose- cuting attorney intends to call at trial, .... Pursuant to the terms of Crim. R. 16(B)(1)(e) the prosecut- ing attorney's witness list must only include those persons who will be called to testify at trial. Review of the transcript in the instant case reveals that Sergeant Englehart did not testify at appellant's trial. Thus, the prosecuting attorney was under no duty to disclose Sergeant Englehart's identity. Crim. R. 16(B)(1)(e). While the appellant argues he was prejudiced by the failure to disclose Sergeant Englehart's identity, we do not agree. There is absolutely no evidence that Sergeant Englehart possessed any additional evidence or evidence which could be construed as being favorable to the appellant. Accordingly, we cannot conclude that the newly discovered evidence of Sergeant Englehart's identity as an investigating officer discloses a strong probability that it would change the result of a new trial if granted. Thus, we dismiss appellant's argument. Next, appellant contends Gary Lenart's trial testimony that the assailant was clean shaven is inconsistent with the November - 6 - 28, 1986 police report which indicates the assailant's facial hair is unknown. However, even assuming the trial testimony contradicts the information contained in the police report concerning the assailant's facial hair, in order to grant a motion for a new trial the newly discovered evidence must not merely impeach or contradict the former evidence. Cf. State v. Lewis (1970), 22 Ohio St. 2d 125, 138. In the instant case, the police incident report merely impeaches the former testimony of Gary Lenart at trial. Accordingly, it is insufficient to grant the appellant a new trial. Appellant also maintains that Exhibit (B) attached to his motion for new trial which indicates the clerk of courts had no record of title for a 1977 Chevrolet issued to Donnie Garner requires that appellant be granted a new trial. We are not so persuaded. While testimony at trial indicated the 1977 Chevrolet belonged to Donnie Garner, we do not see how the ownership of the vehicle materially affects appellant's convictions. Absent such a material connection we decline to find that the appellant is entitled to a new trial. Considering the nature and quality of the state's witnesses testimony, we cannot say that the trial court abused its discretion in overruling appellant's motion for new trial. There being no abuse of discretion, we must affirm the trial court's judgment and overrule appellant's assignments of error. We also - 7 - overrule these assignments of error due to appellant's failure to comply with the time requirements set out in Crim. R. 33(B). Crim R. 33(B) discusses the time requirements for the filing of a motion for a new trial based on newly discovered evidence. It provides: 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. Review of the record in the instant case reveals the appellant has failed to comply with the time requirements set out in Crim. R. 33(B). The rule specifically requires that a motion be filed within seven days of an order finding that appellant was unavoidably prevented from finding such evidence within the 120-day period. In the instant case, no order was filed in the seven-day period prior to the filing of appellant's motion for new trial. Therefore, appellant's motion was not properly before the trial court. See State v. Nelson (February 13, 1986), Cuyahoga App. No. 50131, unreported and State v. Kiraly (1977), 56 Ohio App. 2d 37 at 51-52. - 8 - Appellant's first second and third assignments of error are overruled. Appellant's fourth assignment of error provides: IV. THE TRIAL COURT ERRED BY ENTERING JUDGMENT FOR THE NEW TRIAL MOTION: IN VIOLATION OF C.P. SUPP. R. 4 "IMPROPER ASSIGNMENT." SAID JUDGES RULINGS ARE VOID OR VOIDABLE UPON A TIMELY OBJECTION BY A PARTY OPPOSING THE ASSIGNMENT. SAID VIOLATION VIOLATES ARTICLE IV, SECTION 5, OF THE OHIO CONSTITUTION, AND SUCH ASSIGNMENT OF JUDGE WELLS IS ABSENT A JOURNALIZED ORDER OF THE ADMINISTRATING JUDGE. Appellant alleges improper assignment in violation of C.P. Sup. R. 4. Upon review of appellant's allegation we find that it lacks merit. In a multi-judge division of the common pleas court, C.P. Sup. R. 4 requires that each case be assigned by lot to a specific judge of the court who thus becomes primarily responsible for the determination of every issue and proceeding in the case until its termination. Berger v Berger (1981), 3 Ohio App. 3d 125. Furthermore, C.P. Sup. R. 4 should not be read to mean that only the original assigned judge has authority to take action under any circumstances. Id., at 128. In the instant case the matter was tried by Judge Lawther in June of 1987. We note that Judge Lawther retired in 1989 and his docket was assumed by newly elected Judge Wells. We find no evidence of impropriety nor can any be implied in the assumption of retiring Judge Lawther's docket by Judge Wells. We thus conclude the matter was properly assigned to Judge Wells. - 9 - Accordingly, appellant's fourth assignment of error is without merit. Judgment affirmed. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J. JOHN F. CORRIGAN, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .