COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73481 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION BERNARD WELLS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 22, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-324,593 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor FRANCINE B. GOLDBERG, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: MICHAEL TROY WATSON Attorney at Law Watson & Watson 1367 East 6th Street, #400 Cleveland, Ohio 44114 KENNETH A. ROCCO, J.: -2- Defendant-appellant Bernard Wells appeals from the trial court order that denied his motion for a new trial. Appellant contends this court must reverse his conviction for the state's failure to timely file its appellate brief. Appellant further contends this court should remand this case for the trial court's entry of findings of fact and conclusions of law. Finally, appellant argues the trial court acted improperly in both denying his motion without a hearing and failing to file findings of fact and conclusions of law with respect to it. This court has reviewed the record, finds no basis upon which to either order a remand or overrule the trial court's decision and, thus, affirms it. Appellant was originally convicted of felonious assault with a violence specification after a jury trial. Represented by the same counsel as had represented him at trial, appellant appealed his conviction to this court. Appellant presented the following arguments on appeal: (1) the prosecutor engaged in misconduct by asking appellant improper questions on cross-examination; (2) the trial court erred in excluding evidence of an earlier misidentifi- cation of appellant as the perpetrator of a similar crime; and (3) his conviction was against the manifest weight of the evidence. Since in all these arguments appellant was asserting his innocence of the crime, in State v. Wells (Mar. 13, 1997), Cuyahoga App. No. 70534, unreported, this court extensively reviewed the evidence presented at his trial. A significant proportion of that review follows: -3- At trial, the state presented evidence that showed that [the victim,] James Davis, age forty-two, a veteran GCRTA driver, while driving his wife's uncle, Lynzell Hereford, home about 6:00 p.m. on March 26, 1995, stopped his van at 126th and Shaw on the southeast side of Shaw to allow Hereford to use a pay phone. Hereford got out of the van, crossed the street, and went to the phone booth to make his call. While Hereford was on the phone, a black Chevy Malibu with dark tinted windows stopped on the northeast side of Shaw. A woman got out of the car and told Hereford that she wanted to use the phone. A minute or two later, a heavy-set, brown- skinned man got out of the car and told Hereford to [g]et the f*** off the phone. My bitch wants to use the phone. James Davis identified defendant Wells as the man who confronted Hereford. Davis, when he saw and heard this, got out of the van, crossed the street, and asked Wells what the problem was. Wells confronted Davis, asking, Who the f*** are you? Davis, in order to avoid a confrontation, grabbed Hereford's arm and said, Let's go, and the two started walking back across the street. A second man got out of the car and tackled Davis from behind. In total, five assail- ants from the car knocked Davis down, jumped on him, and kicked him in the face. Davis identified Bernard Wells as the one who punched him in the face three times and kicked him in the face. During the attack, which lasted three to four minutes, Davis asked Wells to stop the punching and kicking. Davis tried to get up three times, but each time, someone grabbed him from behind and tackled him. During the attack, Hereford had two of his teeth knocked out. -4- The assailants ended the assault by jumping into their car; Bernard Wells got into the driver's seat, and the car sped away. Davis was able to see a thirty-day tag with the date scratched off and was able to make out the last three digits, 816, remembering them by association with football players' numbers. After the attackers left, Davis used paper towels from his car because his face was bleeding. He got Hereford back into his car and drove Hereford home - only a three- or four-minute trip from there. From there, it took Davis twenty-five or thirty minutes to drive to his own home because of his injuries. Davis then went to St. Luke's emergency room for treatment. His left cheek was fractured, and he suffered facial contusions, abrasions, and a ruptured blood vessel in his left eye. At the emergency room, Davis spoke to Officer Dlugolinski of the Cleveland Police Department, Fourth District, who responded to St. Luke's Hospital to take the report from Davis. Officer Dlugolinski observed the injuries, made a primary investigative report of the assault, referred Davis to the Sixth District Detective Bureau, and supplied the Sixth District with information from his initial report through the report center. On the day after the assault, Davis learned the complete license plate number from his father-in-law, George Wiggins, who, upon hearing the description of the car as a black Chevy Malibu, believed the car to be the same automobile that he had seen on the street where he lives. Wiggins compared the numbers that Davis remembered to the plate on the car on his street and took down the -5- complete number by looking at the car as it was parked in front of Shawn Wynn's house. Later that day, he contacted Davis with the complete temporary tag number. On April 8, 1995, at the Sixth District, Davis was able to give the description of his assailant to Sergeant James Haber, who was the key investigator assigned to this assault investigation. Davis described his assailant as between 5'11 and 6'2 , heavy-set, and between 250-280 pounds. When Officer Haber reviewed the report, he saw that there was a named suspect and a license plate number given for the vehicle described as a black Chevrolet Malibu. He ran a listing on the plate and found it had expired on March 4th and was listed to Bernard Wells of East 126th (sic) Street. Sergeant Haber showed Davis a photo array of six photos. Davis picked photo three, the picture of Bernard Wells, as the man who beat and kicked him on March 26th. On the same day, the photo array was shown to the other witness, Lynzell Hereford, who also picked photo three, that of Wells. Through investigation, Sgt. Haber also learned that another of the suspects was Shawn Wynn. Sgt. Haber later heard that Hereford stated that he had misidenti- fied Wells as the assailant. Davis made an in-court identification of Bernard J. Wells as his assailant. * * * The defendant, Bernard J. Wells, took the stand in his own defense testifying that he was charged with this crime on the basis of mistaken identity and the fact that the police and the victim -6- were out to get him. Although Wells was unable to remember where he was on March 26, 1995, he denied knowing anything at all about this incident. He acknowledged that the black Chevy Malibu iden- tified by its license plate was his car and that he let Joseph Beard, who was living with Shawn Wynn, drive it for a few weeks. * * * Wells opined that this felonious assault charge was brought against him because all the police of the Sixth District were out to get him due to an incident where he refused to buy Chinese rice for a Sixth District policewoman friend of his while she was off duty, and he was accused of calling her a `bitch.' Further, he testified that although the victim, James Davis, did not know him previously, Davis was also out to `get him.' Wells blamed this arrest on a case of mistaken identity similar to a previous incident of mistaken identity involving the FBI. The jury found the defendant guilty as charged in the indictment. Wells was sentenced to a prison term of seven to fif- teen years ***. Id., slip opinion at pp.2-6. After thus carefully reviewing the record, this court rejected appellant's arguments, found neither prosecutorial misconduct nor error in the trial court's evidentiary ruling, determined appel- lant's conviction was in accord with the weight of the evidence, and therefore affirmed it. The record reflects that while appellant's appeal was pending, he filed in the trial court a motion for shock probation. Appellant was represented by new counsel in this action. The trial -7- court conducted a hearing on appellant's motion and subsequently denied it. On September 17, 1997, represented by still another attorney, appellant filed a motion for leave to file a motion for a new trial. Appellant attached the following: (1) a brief that stated the motion was being made pursuant to Crim.R. 33(A)(6); (2) a memorandum *** in support, in which appellant essentially argued he was denied the effective assistance of counsel at trial; and (3) a number of exhibits, 1 including his affidavit and the affidavit of his girlfriend, Mary Magee. On October 4, 1997 the state filed a brief in opposition to appellant's motion, arguing it was neither timely nor substantive. On October 23, 1997 the trial court issued an order overruling appellant's motion for a new trial. On November 10, 1997 appellant filed his notice of appeal from the foregoing order. Although the record on appeal does not contain it, apparently appellant may have filed a motion for reconsideration in the trial court on or about February 23, 1998. On February 26, 1998, appellant filed a motion for an order of remand to the trial court, attaching to it what purported to be a copy of his motion for 1Some of appellant's exhibits were in the form of transcripts of testimony rather than in affidavit form, and some were copies of letters, photographs and newspaper articles; none of them was either certified or authenticated. -8- reconsideration.2 Appellant's motion for an order of remand was referred to the merit panel assigned to determine his appeal. On March 23, 1998 appellant filed a notice in this court of additional authority in support of his motion for an order of remand. Rather than new authority for his previous position, however, appellant actually presented a completely new argument, viz., this court should remand the case to the trial court with an order to issue findings of fact and conclusions of law with regard to his September 17, 1997 new trial motion. On April 13, 1998 appellant filed his appellate brief. Subsequently, on June 19, 1998 appellant filed a motion for an order determining the appeal in favor of defendant/appellant, arguing the state's failure to timely file its appellate brief mandated reversal of his conviction pursuant to App.R. 18(C).3 Appellant's most recent motion also was referred to the merit panel assigned to determine his appeal. 2This document lacked both verification and a court file stamp. 3Although appellee's brief was due on May 4, 1998, it was not filed until July 14, 1998. The state gave no explanation for this delay. App.R. 18(C) states in pertinent part: (C) Consequence of failure to file briefs. *** If an appellee fails to file his brief within the time provided by this rule, or within the time as extended, he will not be heard at oral argument except by permission of the court upon a showing of good cause submitted in writing prior to argument; and in determining the appeal, the court may accept the appel- lant's statement of the facts and issues as correct and reverse the judgment if appel- lant's brief reasonably appears to sustain such action. -9- In addition to his two motions for orders, appellant presents three assignments of error for this court's review.4 Appellant's appellate motions will be addressed in conjunction with these assignments of error where appropriate. Appellant's assignments of error follow: I. THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT/APPELLANT'S POST-CONVICTION RE- LIEF REQUESTING A NEW TRIAL FOR THE REA- SONS INCLUDING THAT ADEQUATE, SUBSTAN- TIAL, SIGNIFICANT, AND SUFFICIENT EVI- DENCE WAS PRESENTED FOR THE COURT TO ISSUE AN ORDER AWARDING THE DEFEN- DANT/APPELLANT A NEW TRIAL. II. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT/APPELLANT NO LESS THAN A HEARING ON THE ISSUES PRESENTED IN HIS MOTION FOR NEW TRIAL. III. THE TRIAL COURT ERRED IN DENYING DEFEN- DANT/APPELLANT AT LEAST A FINDINGS OF FACT AND CONCLUSIONS OF LAW IN THE DETER- MINATION OF THE COURT DENYING THE DEFEN- DANT/APPELLANT'S MOTION FOR NEW TRIAL. Appellant argues in his third assignment of error and in his notice of additional authority with regard to his motion for a remand that the trial court acted improperly in denying his motion for a new trial without opinion. Appellant contends since he filed for post-conviction relief, he was entitled to findings of fact and conclusions of law. Appellant's argument is baseless. Crim.R. 33 does not require the trial court to issue findings of fact and conclusions of law when rendering its decision on a motion for a new trial. State v. Girts (June 12, 1997), Cuyahoga 4Appellant's assignments of error are not argued separately as required by App.R. 16(A)(7). -10- App. Nos. 69570, 69572, unreported; State v. Allen (Feb. 2, 1995), Cuyahoga App. No. 66346, unreported; see, also, State v. Thomson (Oct. 24, 1997), Lucas App. No. L-97-1127, unreported; State v. Halliwell (Dec. 19, 1996), Cuyahoga App. No. 70369, unreported. Although some trial courts have taken it upon themselves to do so,5 this court will not impose a new responsibility where none exists, especially when appellant never requested it and when the basis for the trial court's denial of his motion for a new trial is apparent from the record. State v. Allen, supra; State v. Schiebel (1990), 55 Ohio St.3d 71. At any event, appellant's assertion that he is entitled to findings of fact and conclusions of law because he requested post- conviction relief leaves him on the horns of a dilemma with respect to the relief he now seeks in this court. If appellant's motion actually had been a request for post-conviction relief pursuant to R.C. 2953.21, et seq., without the trial court's issuance of findings of fact and conclusions of law, this court would have lacked jurisdiction to consider his appeal. See, e.g., State v. Perkins (1982), 5 Ohio App.3d 182, at headnote 2; State v. Parnell (Oct. 8, 1997), Wayne App. No. 96CA0097, unreported; Crim.R. 35(C). Without jurisdiction, this court could issue no orders at all. Moreover, appellant's petition would have been subject to dismissal by the trial court based upon its untimeli- ness, and this court would have been compelled to affirm its 5See, e.g., State v. Kitzler (Feb. 1, 1996), Cuyahoga App. No. 69076, unreported. Fairview Park v. Ricotta (Sep. 21, 1995), Cuyahoga App. No. 66850, unreported. -11- dismissal on this ground. R.C. 2953.21(A)(2); State v. Vroman (Apr. 15, 1997), Ross App. No. 96CA2258, unreported. The record reflects appellant did not file his motion for a new trial pursuant to R.C. 2953.21 and Crim.R. 35 but instead filed it pursuant to Crim.R. 33. Cf., State v. Reynolds (1997), 79 Ohio St.3d 158; State v. Talley (Jan. 30, 1998), Montgomery App. No. 16479, unreported. The trial court properly considered the motion on that basis and, thus, was not required to issue findings of fact and conclusions of law. See, e.g., State v. Halliwell, supra; cf., Cleveland v. Kariotakes (Aug. 28, 1997), Cuyahoga App. No. 71280, unreported. Therefore, an order of remand for findings of fact and conclusions of law is neither appropriate nor warranted. Similarly, appellant's motion for an order of remand to the trial court to rule on his motion for reconsideration also must be denied. First, since it does not appear in the record, this court cannot assume such a motion was filed. App.R. 15(A); see, e.g., Sanders v. Webb (1993), 85 Ohio App.3d 674. Second, assuming, arguendo, appellant filed a motion for reconsideration of the trial court's denial of his motion for a new trial, there is no authority for such an action in a criminal case. Cleveland Heights v. Richardson (1983), 9 Ohio App.3d 152. Since appellant's motion, therefore, was a nullity, it provides no basis for an order of remand. Cf., State v. Resh (Dec. 19, 1997), Portage App. Nos. 96- P-0262, 97-P-0018, unreported. For the foregoing reasons, appellant's motion for an order for remand, in spite of his notice of additional authority with -12- respect to his motion, is denied, and appellant's third assignment of error is overruled. In his first and second assignments of error and his appellate motion made pursuant to App.R. 18(C), appellant essentially argues he met all the requirements for a successful motion for a new trial pursuant to Crim.R. 33; therefore, the trial court lacked a basis upon which to deny his motion. This court disagrees. Crim.R. 33 states in relevant part: RULE 33. New trial. (A) Grounds. A new trial may be granted on motion of the defendant for any of the follow- ing causes affecting materially his substan- tial 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 pro- duce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given ***. (B) Motion for new trial; form, time. Appli- cation for a new trial shall be made by motion ***. 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 convinc- ing 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 pre- -13- vented from discovering the evidence within the one hundred twenty day period. * * * (E) Invalid grounds for new trial. No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of convic- tion be reversed in any court because of: * * * (3) The admission or rejection of any evidence offered against or for the defendant, unless the defendant was or may have been prejudiced thereby; * * * (5) Any other cause, unless it affirmatively appears from the record that the defendant was prejudiced thereby or was prevented from having a fair trial. (Emphasis added.) It must first be noted the trial court in this case never issued an order finding appellant was unavoidably prevented from discovering the evidence within the one-hundred-twenty-day period. Since the jury's verdict of guilt was rendered on March 20, 1996 and appellant's motion was filed more than one year later, appellant's motion was untimely pursuant to Crim.R. 33(B). As such, it was properly overruled on this basis alone. Fairview Park v. Ricotta, supra. Moreover, under Crim.R. 33, motions for a new trial are not to be granted lightly. Toledo v. Stuart (1983), 11 Ohio App.3d 292. Thus, it is well settled that the denial of a motion for a new trial on the grounds of newly discovered evidence is within the sound discretion of the trial court and may be reversed only where -14- there has been a gross abuse of that discretion. State v. Williams (1975), 43 Ohio St.2d 88, paragraph 2 of the syllabus; Toledo v. Stuart, supra. There are, in essence, three prerequisites for a successful Crim.R. 33(A)(6) motion for a new trial. See, e.g., State v. Shepard (1983), 13 Ohio App.3d 117. First, a new trial may be granted on the grounds of newly discovered evidence only if the defendant could not, with reasonable diligence, have discovered and produced the evidence at trial. Id. Second, the evidence must be truly new, not cumulative, and cannot be used merely to impeach or contradict prior evidence. State v. Petro (1947), 148 Ohio St. 505. Finally, the evidence must disclose a strong probability that it will change the result if a new trial is granted. Id.; State v. Lewis(1970), 22 Ohio St.2d 125. Although appellant asserts he has met all three prerequisites, the record renders his assertion unconvincing. The only competent evidence appellant submitted to the trial court consisted of two affidavits. State v. Larkin (1996), 111 Ohio App.3d 516. In appellant's affidavit, he asserted the follow- ing: (1) Lynzell Hereford informed [him] that [he] was not the person that had attacked his nephew, James Davis ; (2) appellant's attorney knew of Hereford's exoneration of him but refused to call Hereford as a witness at trial; (3) appellant's mother knew of an eye witness who could state appellant did not commit the crime; and (4) Sgt. Haber misrepresented at trial that appel- lant's co-defendant could not be located. -15- In her affidavit, appellant's girlfriend stated that appellant did not commit the crime because he was with her at the time it occurred and that appellant's attorney did not contact her to testify at appellant's trial. A review of the foregoing evidence reveals it fails to meet the three requirements for a successful new trial motion as set forth in State v. Petro, supra. State v. Jackson (1992), 82 Ohio App.3d 667; State v. Bell (1996), 112 Ohio App.3d 473. First, appellant could have produced this evidence at his trial since he (a) admits Hereford's misidentification testimony was known, (b) must have known his girlfriend's whereabouts, and (c) did not explain why the other eye witness was not contacted prior to trial. Second, in view of Sgt. Haber's trial testimony that he was aware Hereford had stated he had misidentified appellant, both Hereford's testimony and appellant's girlfriend's testimony would have been merely cumulative. Finally, appellant, himself, took the stand to testify he had been misidentified, thus permit- ting the jury to weigh his credibility. Therefore, the newly discovered evidence fails to disclose a strong probability that it would change the result if a new trial were granted to appellant. State v. Seokaran and Pooran (Apr. 8, 1993), Cuyahoga App. Nos. 62298, 62299, 63353 and 63354, unreported. Although appellant further contends he was deprived of a fair trial by counsel's failure to call these witnesses, he cannot meet the test to prove ineffective assistance of counsel as set forth in State v. Bradley (1989), 42 Ohio St.3d 136, syllabi 2 and 3. -16- The decision to call a witness during the course of trial is a matter of trial strategy. State v. Hunt (1984), 20 Ohio App.3d 310. A review of the record reveals Hereford was subpoenaed as a witness during the pretrial stage of the proceedings against appellant. In view of Davis's description of the attack, together with the fact that Hereford lived near appellant, counsel may have decided the jury would find Hereford's statement of misidentifica- tion to be the product of intimidation rather than reflection. Similarly, the credibility of appellant's girlfriend's statements, long after the date of the crime, that appellant was with her while the offense was occurring would have been tested on cross-examination. Under these circumstances, this court must presume counsel's decisions were considered, strategical ones. State v. Smith (1985), 17 Ohio St.3d 98. Appellant also asserted Sgt. Haber engaged in misconduct when he testified at trial he was unaware of co-defendant Shawn Wynn's whereabouts. Appellant presented no evidence to support this assertion. State v. Wojnowski (July 20, 1990), Cuyahoga App. No. 56319, unreported. The record reflects appellant's co-defendant was arraigned on July 17, 1995 and that the case against him was dismissed on July 20, 1995. Since appellant's trial did not take place until March, 1996, there would have been no reason for Haber to be aware of Wynn's whereabouts. Based upon the record, therefore, the trial court did not abuse its discretion in denying appellant's motion for a new trial on the grounds of newly discovered evidence. State v. Jackson, -17- supra; cf., State v. Larkin, supra. Appellant's first and second assignments of error and his appellate motion made pursuant to App.R. 18(C), accordingly, are overruled. The order of the trial court is affirmed. -18- 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, J. and MICHAEL J. CORRIGAN, J. CONCUR PRESIDING JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .