Youngstown Daily Legal News

No new trial for men convicted of assault outside of Russian restaurant

JESSICA SHAMBAUGH
Special to the Legal News
Published: July 24, 2013

The 10th District Court of Appeals recently affirmed a lower court’s decision denying two men leave to move for a new trial after they were convicted of felonious assault in 2009.

Garri Ambartsoumov and Eldar Veliev were arrested in connection with an incident outside of Hawa Russia, a Russian club and restaurant on East Dublin Granville Road in May 2008.

During the incident two individuals were cut with a knife.

Ambartsoumov and Veliev were given a joint trial in the Franklin County Court of Common Pleas in August 2009.

The jury found Veliev guilty of attempted murder and felonious assault and found Ambartsoumov guilty of felonious assault.

The 10th District affirmed their convictions on direct appeal and the Supreme Court of Ohio declined to grant discretionary review, according to the facts of the case. In March 2011, both men filed applications for reopening and both applications were denied.

In April 2012, they filed identical motions for leave to file a delayed motion for a new trial.

The motions stated that they had discovered new evidence that several individuals, not including themselves, had committed the offense.

With the motions, they included affidavits from three individuals who claimed to have witnessed the incident.

They all said they did not come forth immediately after the offense because they feared retaliation.

The trial court found that all three individuals were listed as potential witnesses for the state in the 2009 jury trial and that the defense was aware they could be called as witnesses at that time.

It maintained none of the witnesses provided information about when they stopped fearing retaliation or when they first told attorneys about their observations.

“That being true, no clear and convincing evidence has been presented that the defense was ‘unavoidably prevented’ from using the three witnesses back in 2009,” the trial court wrote, denying the men’s motion.

Ambartsoumov and Veliev then appealed the denial to the 10th District, claiming they were unavoidably prevented from discovering the evidence at the time of their first trial.

“Appellants contend they were unavoidably prevented from filing a motion for a new trial within the time periods set forth in Crim.R. 33 and that their motions for leave were filed within a reasonable time after discovering the facts contained in the affidavits of the witnesses,” the court wrote per curiam.

Ohio Criminal Rule 33 states that motions for a new trial must be filed within 120 days from the date the verdict is rendered.

A party is unavoidably prevented from discovering evidence when he or she is unaware that the evidence exists, according to case law.

The three-judge appellate panel held Ambartsoumov and Veliev knew about the existence of all three individuals at the time because they were listed as potential witnesses for the state.

It further determined that at least one of the witnesses admitted to sitting with Ambartsoumov and Veliev on the night of the incident.

The panel found the affidavits from the witnesses failed to state how or when they notified the men that they were willing to testify.

“Ohio courts have held that affidavits filed outside of the 120-day time limit of Crim.R. 33 that fail to offer a sufficient explanation as to why evidence could not have been obtained sooner are inadequate to show that the movant was unavoidably prevented from obtaining the evidence within the prescribed time,” the judges stated.

The judges wrote none of the affidavits indicate if the individuals were interviewed at the time of the 2009 trial or mention why they lost their fear of retaliation.

They said Ambartsoumov and Veliev had the burden of showing they were unavoidably prevented from discovering the evidence before their trial and that they did not successfully do so.

“We further find that the trial court did not abuse its discretion in denying the motions without a hearing because ‘the evidence, on its face, did not support appellants’ claims that they were unavoidably prevented from timely discovery of the evidence,’” the court wrote.

Presiding Judge William Klatt and Judges Susan Brown and Lisa Sadler concurred in affirming the trial court’s ruling and overruling the men’s assignments of error.

The case is cited State v. Ambartsoumov, 2013-Ohio-3011.

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