State v. McDonald
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[Cite as State v. McDonald, 2007-Ohio-2148.] IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY State of Ohio Court of Appeals No. E-06-016 Appellee Trial Court No. 94-CR-357 v. Dewitt McDonald DECISION AND JUDGMENT ENTRY Appellant Decided: May 4, 2007 ***** James Conway, Special Prosecutor, and Mary Ann Barylski, Assistant Prosecuting Attorney, for appellee. John Vogel and Richard Parry, for appellant. ***** SINGER, J. {¶ 1} Appellant, Dewitt McDonald, appeals the judgment of the Erie County Court of Common Pleas, denying his motion for a new trial. {¶ 2} Appellant was found guilty of complicity to the 1994 aggravated murder of Vivian Johnson following a jury trial. The trial court sentenced him to a life term of imprisonment without parole possibility for 20 years. We affirmed his conviction and sentence. State v. McDonald (Feb. 7, 1997), 6th Dist. No. E-95-046, discretionary appeal not allowed, 106 Ohio St. 3d 1462, 2005 Ohio 3490. A subsequent petition for postconviction relief, a motion to declare R.C. 2953.23 unconstitutional and a motion for leave to seek a new trial were denied in the trial court, a decision affirmed by this court. State v. McDonald, 6th Dist. No. E-04-009, 2005 Ohio 798, discretionary appeal not allowed, 106 Ohio St. 3d 1462, 2005 Ohio 3490. {¶ 3} Appellant's most recent motion for a new trial is premised on what he asserts is newly discovered evidence, specifically an affidavit from Vivian Johnson's son who avers that Jerome Caffey attempted to goad him into a bar fight saying that he (Caffey) killed Johnson's mother. {¶ 4} When the trial court denied appellant's motion, this appeal followed. In a single assignment of error, appellant asserts that the trial court's ruling was erroneous. {¶ 5} After examining the record in this matter, we conclude that the trial court properly considered the facts and the applicable law. Accordingly, we find appellant's sole assignment of error not well-taken and adopt the well-reasoned decision of Judge Tygh M. Tone as our own. (See State v. McDonald (Feb. 3, 2006), Erie C.P. No. 94-CR357 attached hereto as appendix A.) {¶ 6} On consideration whereof, the judgment of the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Erie County. JUDGMENT AFFIRMED. 2. State v. McDonald E-06-016 A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4. Peter M. Handwork, J. _______________________________ JUDGE Arlene Singer, J. Thomas J. Osowik, J. CONCUR. _______________________________ JUDGE _______________________________ JUDGE This decision is subject to further editing by the Supreme Court of Ohio's Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court's web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6. 3.
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