State v. McAlpin

Citations

• 2023 Ohio 4794

Syllabus

Motion for leave to file motion for new trial new trial Crim.R. 33(A)(6) death penalty aggravated murder location data location history Google Google Takeout digital forensics cell phone abuse of discretion unavoidably prevented reasonable diligence clear and convincing evidence. The trial court's order denying an untimely filed motion for new trial should be construed as denying the defendant's later-filed motion for leave to file a new-trial motion, under the unique facts and circumstances of this case. It was not an abuse of discretion for the trial court to deny the motion for leave without a hearing where the defendant was not unavoidably prevented from discovering the grounds upon which the motion would be based in a timely manner. Specifically, the defendant wished to make his motion based on location data maintained by Google and a summary of that data created by Google. The summary was available to the defendant before trial, simply by logging into the defendant's Google account. The location data maintained by Google could have been obtained through a Google Takeout request. These facts were apparent from the affidavit of a defense forensic expert whose opinion was submitted in support of the new-trial motion. The expert's opinion also confirmed that the state was not in possession of the evidence upon which the motion was based, such that there could potentially be a meritorious suppression argument. Additionally, the defendant had access to the services of a digital-forensics expert before trial. There is no reason apparent from the record as to why the defendant could not have logged into his own account before trial or requested a complete copy of his account data from Google — or directed his appointed counsel or digital-forensic expert to do so on his behalf. Judgment affirmed.