Youngstown Daily Legal News

12th District says new evidence could have been discovered during trial; rejects appeal

ANNIE YAMSON
Special to the Legal News
Published: June 24, 2013

In an opinion released recently, the 12th District Court of Appeals affirmed the decision of the Clermont County Court of Common Pleas in which it denied a prisoner’s request for leave to file a delayed motion for a new trial based on newly discovered evidence.

It also denied a petition for postconviction relief.

Presiding Judge Robert Hendrickson wrote the opinion on behalf of a three-judge appellate panel. The court was hearing an appeal from Kevin Thornton for a second time.

In the first appeal, Thornton’s conviction for aggravated robbery was affirmed by the 12th District.

That case stemmed from an incident that took place Sept. 11, 2007 when Thornton robbed a Cash Express in Milford.

According to the sole witness’ testimony and surveillance video, a man wearing sunglasses, thin cotton gloves and a black hat walked into the Cash Express at 1:15 p.m., held a gun to the stomach of the cashier, Leslie Fahey, and demanded money.

The robber bound Fahey’s hands and feet with zip ties and instructed her not to scream or he would come back. Fahey sounded an alarm once the robber left.

Though surveillance cameras failed to show the robber’s face, case summary stated that “Milford police officers believed that, given the perpetrator’s height and posture, the robber was Thornton.”

After being shown two photo lineups, Fahey also identified Thornton as the man who robbed her.

Later that same day, police executed search warrants on Thornton’s apartment, his girlfriend’s apartment and his mother’s car.

The police seized a shirt and sunglasses that matched those of the robber but they did not find zip ties, a gun, money or a black hat.

In November 2007, Thornton’s first trial ended in a hung jury but in April 2008 he was convicted of aggravated robbery and kidnapping with firearm specifications and sentenced to 12 years in prison.

Two years later, Thornton contacted the Ohio Innocence Project, which conducted DNA tests on the zip ties used in the robbery.

Only one set of male DNA was found on the ties and it did not match Thornton’s or any of the officers at the scene the day of the robbery.

In addition to DNA testing, the Ohio Innocence Project contacted Philip Locke, a member of the American Society for Photogrammetry and Remote Sensing.

Locke performed a photogrammetric analysis of the surveillance video, a science based on triangulation which measures an object in a space where a photograph was taken.

The process uses lines of sight to mathematically produce coordinates to determine characteristics such as the height of an individual.

According to Locke, the robber in the video measured 5’11”, give or take three-fourths of an inch. Thornton was 6’3” but Locke determined that the perpetrator could not have been taller than six feet.

“It is clear to a reasonable degree of scientific certainty that the perpetrator could not possibly be Kevin Thornton,” Locke stated in his analysis of the video.

After a hearing on Thornton’s motion for leave to file for a new trial, the trial court denied both the motion and petition for postconviction relief, “despite a finding that the photogrammetry evidence would have been compelling to a jury.”

In a second appeal to the 12th District, Thornton argued that the trial court erred in denying his request for leave.

“When exonerative evidence is beyond the reach of a defendant within 120 days of his trial, he is unavoidably prevented from discovery of that evidence and should be granted leave to file a motion for a new trial,” Thornton claimed.

Crim.R. 33(B) provides a limitation of “120 days after the day upon which the verdict was rendered” for which a defendant may file a motion for a new trial.

“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,” wrote Hendrickson.

In order to be granted leave, Thornton was required to establish by “clear and convincing proof” that he was “unavoidably prevented from the discovery of the evidence” within the allotted time frame.

“Crim.R 33 motions for a new trial are not to be granted lightly,” stated Hendrickson. “Thus, the denial of a motion for a new trial on the ground of newly discovered evidence will not be disturbed on appeal absent an abuse of discretion.”

Thornton contended that both the DNA evidence and photogrammetry analysis were unavoidably unavailable to him until long after his trial.

As required by Crim.R. 33, he also argued that, had the evidence been presented at trial, there was a strong probability that he would not have been found guilty.

“We find these arguments unpersuasive,” the appellate panel stated. “U.S. courts began introducing DNA evidence in criminal cases as early as 1987 and its use was gradually accepted over the next few decades.”

Thornton’s attorney admitted he “did not contact any DNA laboratories at the time of either of Thornton’s trials to ascertain whether advanced DNA technologies could help” his case.

Counsel also stated that failing to pursue DNA testing was “not part of his trial strategy.”

“Thus, Thornton fails to demonstrate, by clear and convincing evidence that he — with or without the assistance of trial counsel — was unavoidably prevented from seeking the use of any DNA testing,” wrote Hendrickson.

The court of appeals determined the same went for the photogrammetry evidence because the surveillance video was available to Thornton and his counsel prior to the first trial in 2007.

“In viewing the DNA evidence and photogrammetry analysis in the context of the record as a whole, we do not find that the ‘new’ evidence disclosed a strong probability that it would change the outcome if a new trial was granted,” wrote Hendrickson.

The panel held that the DNA did not disprove that Thornton committed the crime but only demonstrated that another male came in contact with the zip tie.

During trial, Thornton’s counsel also addressed the issue of height.

The appellate court found that, while expert testimony would have bolstered the defense’s argument, the jury still heard evidence regarding the height disparity.

“Bald assertions that Thornton could not have timely discovered the evidence is not enough,” the panel concluded. “Thornton fails to explain why neither he nor his trial counsel could have timely discovered the DNA or photogrammetric evidence.”

“As such, we find that the trial court did not abuse its discretion in denying Thornton’s motion for leave to move for a new trial.”

In a second assignment of error, Thornton also accused the trial court of error when it denied his petition for postconviction relief.

However, in his argument, he claimed the petition should have been granted because he was prevented from discovering the DNA and photogrammetric evidence “due to the ineffective assistance of his trial counsel.”

The court found it did not need to address the additional argument because it had previously overruled Thornton’s first assignment of error.

Hendrickson went on to note, “Nevertheless, even if Thornton has met the requirements ... (he) fails to establish the constitutional error of ineffective assistance of counsel.”

The appellate panel concluded by overruling both assignments of error presented by Thornton and affirming the judgment of the county court.

Judges Stephen Powell and Michael Powell concurred.

The case is cited State v. Thornton, 2013-Ohio-2394.

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