State v. Smith , 2023 Ohio 4800 ( 2023 )

[Cite as State v. Smith, 2023-Ohio-4800.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 23AP-146
v. : (C.P.C. No. 15CR-4092)
James E. Smith, Jr., : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 28, 2023
On brief: [Janet A. Grubb, First Assistant Prosecuting
Attorney], and Taylor M. Mick, for appellee.
On brief: Sterling E. Gill, II, for appellant.
APPEAL from the Franklin County Court of Common Pleas
LELAND, J.
{¶ 1} Defendant-appellant, James E. Smith, Jr., appeals from a judgment of the
Franklin County Court of Common Pleas denying his motion for leave to file a delayed
motion for new trial based on newly discovered evidence.
I. Facts and Procedural History
{¶ 2} On August 21, 2015, appellant was indicted on two counts of possession of
cocaine, in violation of R.C. 2925.11, and two counts of trafficking in cocaine, in violation of
R.C. 2925.03. Following a jury trial, appellant was convicted on all counts.
{¶ 3} The following recitation of the evidence presented at trial is drawn from this
court’s decision on appellant’s direct appeal, State v. Smith, 10th Dist. No. 16AP-772, 2017-
Ohio-7740. On August 11, 2015, law enforcement officials received notification regarding
“a FedEx package that possibly contained a controlled substance.” Id. at ¶ 3. The suspect
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package “was addressed to ‘Jesica Aviles’ [on] Chittenden Avenue in Columbus from a
sender located on Veronica Drive in Coachella, California; the FedEx tracking number
indicated that the package was shipped from a Kinko’s in LaQuinta, California.” Id.
Officers found inside the FedEx package “six kilos of cocaine encased within a karaoke
machine.” Id. The officers subsequently “placed one package of cocaine, several packages
of fake cocaine, and a GPS transmitter and another electronic device back into the karaoke
machine, resealed the karaoke machine in the FedEx box, and obtained authorization to
conduct a controlled delivery of the package to the Chittenden Avenue residence.” Id.
{¶ 4} The following day, “a special agent for a drug traffic force, posing as a FedEx
delivery person and equipped with electronic recording devices, approached the Chittenden
Avenue residence,” and “[s]urveillance and tactical teams positioned nearby the home
monitored the delivery.” Id. at ¶ 4. At the time the special agent arrived, “[t]hree men
unknown to the special agent were on the front porch to the home: appellant, George
Spencer, and Mark Chafin.” Id. The special agent stated that “he had a package for ‘Jesica,’
and appellant responded, ‘Yeah, yeah.’ ” Id. Appellant then “told the agent his name was
Burt Johnson and [he] was a resident of the house, signed for the package, and indicated
that he did not think the box needed to be signed for.” Id. When the special agent “told
appellant that the package could be stolen if left on the front porch, * * * appellant moved
the package from the porch to inside the doorway of the house.” Id. The special agent then
left the residence.
{¶ 5} Several minutes following the controlled delivery, “Chafin removed the
FedEx box from the home, placed it into the backseat of a Mercury Sable, and returned to
the porch.” Id. at ¶ 5. The vehicle was “titled to TSF Investment Company, LLC, a company
for which appellant is the CEO.” Id. A short time later, “appellant and Chafin got into the
Sable” and appellant “drove the Sable down Chittenden Avenue with Chafin in the front
passenger seat.” Id.
{¶ 6} At the end of the street, uniformed detectives stopped the vehicle and officers
“found the unopened FedEx package sitting on the back seat of the Sable behind the
passenger seat.” Id. at ¶ 6. The officers “seized $1,014 in cash and three cell phones from
appellant’s person.” Id. During the inventory of the vehicle, “officers recovered from the
No. 23AP-146 3
trunk a second, virtually identical karaoke machine containing an additional six kilos of
cocaine.” Id.
{¶ 7} Eight days later, upon obtaining a warrant, “officers searched a business
owned by appellant named ‘The Speed Factory’ located [on] Groves Road, Unit 35, in
Columbus.” Id. at ¶ 7. Among the items seized by officers were “a cell phone from the
garage area and a cell phone from a bag hanging on a coat rack.” Id.
{¶ 8} At trial, “[a]n expert in mobile device forensics testified to analyzing the five
cell phones recovered” from appellant’s business or on his person. Id. at ¶ 8. One of the
cell phones “found on appellant contained records of calls to the same southern California
number at least 11 times from August 4 to August 12, 2015,” and “[t]ext messages recovered
from the phones found on appellant contained tracking numbers that matched the FedEx
records of other packages sent between Columbus and California.” Id. Further, “[a]t least
one of those phones had accessed FedEx.com to track three packages between Columbus
and California,” and “[s]creenshots of texts from the Nokia phone taken from the coat rack
of appellant’s business included California addresses related to locations of five other
FedEx packages shipped between Columbus and California coupled with texts relaying the
Chittenden Avenue address.” Id.
{¶ 9} Testimony by the officers involved in the case indicated “narcotics smugglers
seldom ship drugs to their own residence but rather typically ship drugs to another
residence with a fictitious name listed; likewise, the sender information listed on such a
package is fictitious in a high percentage of cases.” Id. at ¶ 9.
{¶ 10} Prior to trial, “Chafin allegedly executed an affidavit stating he placed both
boxes in the Sable, believed the boxes contained auto parts, and that appellant did not know
anything about the boxes. The affidavit is not a part of the record [on] appeal.” Id. at ¶ 10.
Appellant attempted to call Chafin at trial “to testify as a defense witness and enter Chafin’s
affidavit into evidence.” Id. Outside the presence of the jury, “counsel for Chafin stated
that he had advised Chafin to assert his right against self-incrimination under the Fifth
Amendment to the U.S. Constitution.” Id. The trial court agreed with Chafin’s counsel
“that taking the stand posed a genuine risk to Chafin’s Fifth Amendment rights, noting that
by carrying the box to the car Chafin arguably held equal possession of the narcotics.” Id.
Counsel for appellant “recognized that there could be a Fifth Amendment issue but objected
No. 23AP-146 4
to not being able to ask him multiple questions and mentioned that he would like to
question Chafin about whether officers threatened him to not testify, and whether that had
an impact on his decision to invoke the Fifth Amendment.” Id. Defense counsel failed to
proffer for the record questions that he would have asked Chafin.
{¶ 11} After the jury returned, “defense counsel called Chafin to the stand” and,
“[a]fter being sworn in, Chafin provided identifying information.” Id. at ¶ 11. Appellant’s
counsel “handed Chafin his affidavit and asked whether he recognized it.” Id. Acting on
“his own counsel’s advice, Chafin invoked his right against self-incrimination under the
Fifth Amendment” and “further indicated that at his counsel’s instruction, he would ‘plead
the fifth’ in response to any question.” Id. The trial court, noting “defense counsel’s
objection,” then “instructed the jury not to draw any inference either for or against
appellant on the basis of Chafin’s failure to testify.” Id. On the state’s objection, “the trial
court did not admit Chafin’s affidavit into evidence on the basis that appellant was an
unavailable witness, and the affidavit did not fall within any exception in Evid.R. 804(B).”
Id.
{¶ 12} On October 13, 2016, following deliberations, the jury “returned verdicts
finding appellant guilty of all counts.” Id. at ¶ 12. Appellant filed a direct appeal from his
convictions, raising three assignments of error in which he asserted the trial court erred in:
(1) permitting Chafin to invoke his right against self-incrimination and in not ordering him
to testify, (2) excluding the affidavit of Chafin, and (3) imposing a fine. In Smith, this court
overruled all of appellant’s assignments of error and affirmed the judgment.
{¶ 13} On July 23, 2020, appellant filed a pro se motion for leave to file a delayed
motion for new trial. In the accompanying memorandum in support, appellant asserted
that “[r]egardless of the information presented at trial, Mark Chafin was the person
responsible for the transactional processes and possession of the drugs that he placed into
[appellant’s] car.” (July 23, 2020 Mot. for Leave at 6.) According to appellant, Chafin, who
was now deceased, did not testify because “detectives had harassed his 73-year-old mother,
and he did not want to immediately go to jail following his testimony admitting sole
responsibility.” (July 23, 2020 Mot. for Leave at 6-7.) Appellant asserted that affidavits
attached to his motion constituted newly discovered evidence.
No. 23AP-146 5
{¶ 14} Attached to the motion were affidavits from Chafin (exhibit A), appellant
(exhibit B), David Coates (exhibit C), Shawn Pryor (exhibit D), and Jeffrey Malloy (exhibit
E). In Chafin’s affidavit, dated September 28, 2018, he asserted that “[d]uring the summer
of 2016, I was waiting for auto parts shipment that also contained drugs to arrive that I
ordered.” (Chafin Aff. at ¶ 1.) According to Chafin, appellant “had no knowledge of what
the boxes contained.” (Chafin Aff. at ¶ 1.) Chafin stated that after appellant was charged
“for the drugs I placed in his trunk, I was subpoenaed to go to court to testify by [appellant’s]
attorney.” (Chafin Aff. at ¶ 4.) Chafin further averred that, after he arrived at the
courthouse, an assistant prosecutor “told me that if I went in the court and testified in
[appellant’s] behalf, I would be going to prison that day.” (Chafin Aff. at ¶ 4.) Chafin also
stated in his affidavit: “After I went to church recently and hearing people say we should
confess our wrongs, I knew I had to do the right thing, even if it meant going to prison.”
(Chafin Aff. at ¶ 5.)
{¶ 15} Coates, appellant’s son, stated in his affidavit that he sought the assistance
“of a few attorneys who, after looking at [appellant’s] case file, said they did not want to
take the case because [the assistant prosecuting attorney] will go after them the way he went
after Attorney Dennis W. McNamara by threatening to have Mr. McNamara indicted for
perjury.” (Coates Aff. at ¶ 3.)
{¶ 16} In his affidavit, Pryor averred that Columbus police officers, on August 20,
2015, conducted a search on Groves Road, Suite 35,“known at the time as The Speed
Factory.” According to Pryor, the Groves Road address was being utilized as a t-shirt
printing company by Pryor, Pryor’s son, and appellant’s son.
{¶ 17} On August 3, 2020, plaintiff-appellee, State of Ohio, filed a memorandum
contra appellant’s motion for leave to file a delayed motion for new trial. In the
accompanying memorandum in support, the state argued appellant failed to establish he
was unavoidably prevented from discovering the evidence at issue. Specifically, the state
argued appellant knew Chafin “well-before trial and even tried to call Chafin as a witness at
trial,” and thus the claim that Chafin ordered and received the drugs was “not ‘newly
discovered’ evidence * * * but rather newly available evidence.” (Aug. 3, 2020 Memo Contra
at 1o.) The state further argued appellant “knew of the search of his Groves Road business
before trial, as well.” (Aug. 3, 2020 Memo Contra at 10.) Finally, the state argued Chafin’s
No. 23AP-146 6
current affidavit contradicted an earlier affidavit of Chafin that appellant attempted to use
at trial, and also contradicted the defense theory at trial that Chafin did not know there were
drugs in the boxes.
{¶ 18} On August 10, 2020, the trial court filed a decision and entry denying
appellant’s motion for leave to file a delayed motion for new trial. On September 18, 2020,
appellant filed a notice of appeal from the trial court’s entry of August 10, 2020. By entry
filed October 7, 2020, this court dismissed appellant’s appeal as untimely.
{¶ 19} On September 14, 2021, appellant filed a second motion for leave to file a
delayed motion for new trial, asserting newly discovered evidence pursuant to Crim.R.
33(A)(6). In the accompanying memorandum in support, appellant argued that, although
the assistant prosecuting attorney “literally threatened to get [appellant’s] trial attorney,
Dennis W. McNamara, indicted had McNamara provided exculpatory evidence,” appellant
“was not aware until May 2021 that [the assistant prosecuting attorney] actually filed a
grievance with the disciplinary counsel.” (Sept. 14, 2021 Mot. for Leave at 5.) Appellant
further asserted that “[u]ntil May 2021, [he] was not aware that Mr. McNamara was so
rattled by [the assistant prosecuting attorney’s] intimidation tactics that not presenting the
content of an exculpatory affidavit caused [appellant] to lose his trial.” (Sept. 14, 2021 Mot.
for Leave at 5.) Attached to the motion were seven affidavits, five of which were attached
to appellant’s first motion for leave (i.e., affidavits from Chafin (exhibit B), Pryor (exhibit
D), Malloy (exbibit E), appellant (exhibit F), and Coates (exhibit G)), as well as additional
affidavits of McNamara (exhibit A) and “Minister” Norman V. Whiteside (exhibit C).
{¶ 20} In his affidavit, attorney McNamara averred that, after appellant was
indicted, “I received an unsolicited sworn statement in the mail from Mark R. Chafin,” and
such statement “was clearly exculpatory as to [appellant].” (McNamara Aff. at ¶ 3-4.)
McNamara further averred that in August 2016, “a number of lawyers were talking in a
conference room on the fourth floor of the Franklin County Courthouse” and, during that
conversation, the assistant prosecuting attorney “stated that if Mark Chafin was called as a
witness at [appellant’s] trial, he would indict Mr. Chafin for perjury and he would indict me
for complicity to perjury.” (McNamara Aff. at ¶ 5.) McNamara stated that in “late 2016,”
the assistant prosecuting attorney “filed a grievance against me with the Ohio Supreme
Court’s Disciplinary Counsel.” (McNamara Aff. at ¶ 8.) Further, “[n]ow that [appellant] is
No. 23AP-146 7
aware of [the assistant prosecuting attorney’s] pretrial threat to indict me, and also aware
of his post-trial grievance, * * * he believes that I provided ineffective assistance both at trial
and on appeal.” (McNamara Aff. at ¶ 10.)
{¶ 21} In his affidavit, dated April 9, 2021, Whiteside averred that in August 2018
he met with Chafin who told him that in 2015 “he was running drugs through an auto parts
distribution place” and that “he often fooled people into believing he was stupid so that no
one would suspect him of being behind his operations.” According to Whiteside, Chafin
stated “he wanted to testify and tell the truth” and that “the only reason he took the ‘5th’ is
that detectives had harassed his mother and caused him to believe they would do something
to implicate her in his wrongdoings.” Whiteside further averred that Chafin “passed [away]
just before Christmas 2018.”
{¶ 22} On November 22, 2021, the trial court filed a decision and entry denying
appellant’s motion for leave to file a delayed motion for new trial. In its decision, the trial
court found appellant “failed to demonstrate by clear and convincing evidence that he was
unavoidably prevented from filing his motion for a new trial within the time prescribed by
law pursuant to Crim.R. 33.” (Nov. 22, 2021 Decision & Entry at 1.) The court further found
“the purported ‘newly discovered evidence’ proffered in [appellant’s motion] fails to qualify
as sufficient grounds for a new trial under Crim.R. 33(A) insofar as none of the information
appears to be either ‘newly discovered’ or even ‘evidence.’ The allegation that [appellant’s]
trial counsel was ‘rattled’ by the assistant prosecutor’s ‘intimidation tactics’ is not supported
by [appellant’s] own exhibit, in which trial counsel never claims to actually have been
‘rattled’, ‘intimidated’, or otherwise ineffective at trial.” (Nov. 22, 2021 Decision & Entry at
1.) The trial court further found that appellant’s motion and “attached exhibits merely
attempt to re-introduce testimony that was ruled inadmissible at trial and relitigate issues
previously addressed both on appeal * * * and [appellant’s] earlier request for a new trial[.]
* * * Such claims are barred by res judicata.” (Nov. 22, 2021 Decision & Entry at 1-2.)
Appellant did not file an appeal from the trial court’s entry denying the September 14, 2021
motion for leave to file a delayed motion for new trial.
{¶ 23} On September 9, 2022, appellant filed a third motion for leave to file a
delayed motion for new trial based on newly discovered evidence. Attached to the motion
were the affidavits of Mark Chafin, Jr., and Calvin Smith. The motion further provided that
No. 23AP-146 8
“all previous affidavits filed September 14, 2021 with Motion for Leave to File Delayed
Motion for New Trial, are incorporated herein by reference and made a part hereof as
though fully rewritten.” (Sept. 9, 2022 Mot. for Leave at 1.) In the accompanying
memorandum in support, appellant again asserted he was not aware “[u]ntil May 2021,”
that “McNamara was so rattled by [the assistant prosecuting attorney’s] intimidation
tactics * * * nor was he aware that during the time of his legal proceedings [the assistant
prosecuting attorney] had filed a grievance with the disciplinary counsel that caused Mr.
McNamara to provide inadequate representation to [appellant].” (Sept. 9, 2022 Mot. for
Leave at 5.)
{¶ 24} The attached affidavit from Smith averred that, on August 12, 2015, he was
sitting with Chafin, Jr. in a car on Chittenden Avenue when “Mark Chafin, Sr. put a karaoke
machine in the car we were in and told Mark [Jr.] to follow him after the ‘package’ got
there.” Smith further averred that he and Chafin, Jr. subsequently followed appellant’s car,
but “we noticed the police coming from everywhere stopping [appellant’s] car.” Smith
stated that, “a short time later” he “saw Mark, Sr. walking away from the scene * * * and
then somehow came up behind us and told Mark, Jr., ‘Take the machine to the spot and
drive slowly.’ ” According to Smith, “Mark, Jr. asked him what was going on and Mark Sr.
told him, ‘They’re taking Bub to jail because of my shit.’ ”
{¶ 25} In his affidavit, Mark Chafin, Jr. (hereafter “Chafin, Jr.”) averred: “I know
firsthand that Mr. James Smith is sitting in prison for drugs that belonged to my father,
Mark Chafin, Sr. I have been concerned about coming forward because of the way the
detectives harassed my grandmother and threatened to take her to jail and I believed that
had they known what I know, I would have gone to jail as well.” Chafin, Jr. stated he “knew
my father had put drugs in my car and I knew that it was drugs he was putting in Smith’s
car.” Chafin, Jr. further averred that “[b]efore my father died, he kept saying that it
bothered him that he got Bub in trouble and he was going to try to clear him but he couldn’t
take care of my grandmother from in prison.”
{¶ 26} On February 27, 2023, the trial court filed a decision and entry denying
appellant’s motion for leave to file a delayed motion for new trial. In its decision, the court
noted that appellant, “[o]n September 14, 2021, * * * filed, almost word-for-word, the exact
same motion.” (Feb. 27, 2023 Decision & Entry at 1.) Specifically, the court found “[t]he
No. 23AP-146 9
only discernable difference between [appellant’s] current motion and his 2021 motion
appears to be the addition of two affidavits attached as supporting documentation in his
current motion[.] * * * The two affidavits, however, simply regurgitate the same
information provided in [appellant’s] 2021 motion.” (Feb. 27, 2023 Decision & Entry at 1.)
{¶ 27} The trial court determined appellant “failed to demonstrate by clear and
convincing evidence that he was unavoidably prevented from filing his motion for a new
trial within the time prescribed by law pursuant to Crim.R. 33(B).” (Feb. 27, 2023 Decision
& Entry at 1.) The court also found “the purported ‘newly discovered evidence’ proffered in
[appellant’s] Motion fails to qualify as sufficient grounds for a new trial under Crim.R.
33(A) insofar as none of the information appears to be either ‘newly discovered’ or even
‘evidence.’ ” (Emphasis omitted.) (Feb. 27, 2023 Decision & Entry at 1-2.) Finally, the
court held the motion and attached exhibits “merely attempt to re-introduce testimony that
was ruled inadmissible at trial and relitigate issues previously addressed on appeal,” and
the court concluded that “[s]uch claims are barred by res judicata.” (Feb. 27, 2023 Decision
& Entry at 2.)
II. Assignments of Error
{¶ 28} Appellant appeals and assigns the following two assignments of error for our
review:
[I.] The trial court abused its discretion and committed
prejudicial error by applying the incorrect standard to
motions for leave to file delayed motion for new trial in
contravention of State of Ohio v. Bethel, Slip Opinion No.
2022-Ohio-783.
[II.] The trial court abused its discretion and committed
prejudicial error by not independently considering the
information in the two affidavits attached to Appellant’s
motion for leave to file delayed motion for new trial.
III. Analysis
{¶ 29} Under his first assignment of error, appellant argues the trial court erred in
applying an incorrect standard when it found he “failed to demonstrate by clear and
convincing evidence that he was unavoidably prevented from filing his motion for a new
trial within the time prescribed by law pursuant to Crim.R. 33(B).” (Feb. 27, 2023 Decision
& Entry at 1.) In support, appellant relies on the Supreme Court of Ohio’s recent decision
No. 23AP-146 10
in State v. Bethel, 167 Ohio St.3d 362, 2022-Ohio-783. Appellant maintains the decision
in Bethel “clarified” the following “two important matters”: (1) there is “no ‘reasonable-time
filing requirement’ under Crim.R. 33,” and (2) the trial court cannot first decide a
defendant’s motion for new trial prior to consideration of the motion for leave to file the
delayed motion for new trial. (Appellant’s Brief at 7.)
{¶ 30} A trial court’s ruling on a motion for leave to file a motion for new trial “is
reviewed for an abuse of discretion.” State v. McNeal, 169 Ohio St.3d 47, 2022-Ohio-2703,
¶ 13. See also State v. Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991, ¶ 29 (“Appellate review
of a trial court’s ruling on a motion for leave to file a motion for a new trial is conducted
under an abuse-of-discretion standard.”). Courts, however, “ ‘lack the discretion to make
errors of law, particularly when the trial court’s decision goes against the plain language of
a statute or rule.’ ” McNeal at ¶ 13, quoting Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-
Ohio-3304, ¶ 39. Rather, questions of law are reviewed “de novo.” Id., citing Johnson at
¶ 38.
{¶ 31} Appellant sought leave to file a delayed motion for a new trial based on newly
discovered evidence under Crim.R. 33(A)(6). Pursuant to Crim.R. 33(A)(6), a new trial may
be granted “[w]hen new evidence material to the defense is discovered which the defendant
could not with reasonable diligence have discovered and produced at the trial.” Crim.R.
33(B) provides that a motion for new trial based on 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.” A defendant who fails to
file a motion for new trial within the prescribed 120-day period “must seek leave from the
trial court to file a delayed motion.” State v. Lundy, 10th Dist. No. 19AP-505, 2020-Ohio-
1585, ¶ 10, citing State v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-2244, ¶ 19.
{¶ 32} In order to “obtain such leave, a defendant must demonstrate by clear and
convincing proof that he or she was unavoidably prevented from discovering the evidence
upon which the motion is based within the 120-day timeframe.” Id. at ¶ 11, citing Crim.R.
33(B); Berry at ¶ 19. Under Ohio law, “[a] defendant is unavoidably prevented from
discovering new evidence if he or she had no knowledge of the existence of the new evidence
and, in the exercise of reasonable diligence, could not have learned of its existence within
the time prescribed for filing a motion for new trial.” Id., citing Berry at ¶ 19, citing State
No. 23AP-146 11
v. Lee, 10th Dist. No. 05AP-229, 2005-Ohio-6374, ¶ 7, and State v. Walden, 19 Ohio App.3d
141, 145-46 (10th Dist.1984).
{¶ 33} As noted, appellant contends the trial court applied an incorrect standard
under Bethel in finding he “failed to demonstrate by clear and convincing evidence that he
was unavoidably prevented from filing his motion for a new trial within the time prescribed
by law pursuant to Crim.R. 33(B).” (Feb. 27, 2023 Decision & Entry at 1.) The basis for
appellant’s argument is the Supreme Court’s admonition in Bethel that “Crim.R. 33(B) does
not give a deadline by which a defendant must seek leave to file a motion for a new trial
based on the discovery of new evidence.” Bethel at ¶ 53.
{¶ 34} In addressing that portion of the holding in Bethel, this court recently
observed: “In Bethel, the Supreme Court implicitly overruled previous appellate cases that
had required that a motion for leave to file a delayed motion for new trial be filed ‘within a
reasonable time after the discovery of the new evidence,’ finding that no such timing
requirement exists in Crim.R. 33(B).” State v. Sevilla, 10th Dist. No. 22AP-764, 2023-
Ohio-1726, ¶ 18, citing Bethel at ¶ 58. Thus, prior to Bethel, a number of appellate courts,
including this court, had imposed a time requirement in addition to the 120-day period
under Crim.R. 33(B) for filing a Crim.R. 33(A)(6) motion based on newly discovered
evidence. See, e.g., State v. Armengau, 10th Dist. No. 17AP-852, 2018-Ohio-4299, ¶ 3,
citing State v. Armengau, 10th Dist. No. 16AP-355, 2017-Ohio-197, ¶ 14, 18 (pre-Bethel
decision noting we had previously “denied appellant’s motion for leave to file a delayed
motion for new trial based on newly discovered evidence under Crim.R. 33(A)(6), finding
that appellant failed to show [by clear and convincing evidence] he was unavoidably
prevented from discovering [purported newly discovered] evidence within 120 days of the
jury verdict as required by Crim.R. 33(B) and that he further failed to file his motion for
leave within a reasonable time after discovering [the] evidence”). (Emphasis added.)
{¶ 35} In the present case, however, appellant fails to demonstrate the trial court
applied an incorrect standard. Specifically, the trial court did not make a finding that
appellant failed to file his motion for leave within a reasonable time after discovering the
purported new evidence. Rather, as observed by the state, the trial court’s finding that
appellant challenges on appeal relate to a “still existing” requirement under Crim.R. 33(B),
i.e., “the requirement that a defendant seeking to file a motion for new trial under Crim.R.
No. 23AP-146 12
33(A)(6) more than 120 days after the verdict must present clear and convincing evidence
that he was unavoidably prevented from discovering the new evidence within the 120-day
window.” (Appellee’s Brief at 24-25.)
{¶ 36} Thus, the trial court’s reference to the “time prescribed” by Crim.R. 33(B)
does not stand in contravention to the holding in Bethel. See, e.g., McNeal at ¶ 16 (noting
that Crim.R. 33(B) “excuses a defendant’s failure to move for a new trial within the * * *
120-day deadline * * * if the defendant proves by clear and convincing evidence that he or
she was unavoidably prevented from discovering the evidence * * * within that time” and
that, upon such a showing, defendant must file his or her motion for new trial within 7 days
of the court’s finding the defendant was “unavoidably prevented from discovering the
evidence within the time prescribed by Crim.R. 33(B)”); State v. Martin, 8th Dist. No.
110549, 2022-Ohio-1494, ¶ 25, citing State v. Dues, 8th Dist. No. 105388, 2017-Ohio-6983,
¶ 10, citing State v. Mathis, 134 Ohio App.3d 77, 79 (1st Dist.1999) (discussing holding in
Bethel regarding error by appellate court in finding it was within trial court’s decision to
deny motion for leave based on failure to file motion within reasonable time after
discovering new evidence, and further observing that “[o]ur focus shifts to whether, to
obtain leave, [the appellant] has demonstrated ‘by clear and convincing evidence that he
was unavoidably prevented from discovering the new evidence within the 120-day time
period’ ”).
{¶ 37} Appellant cites to another portion of the Bethel holding in arguing error by
the trial court. Specifically, appellant notes the Supreme Court in Bethel observed that
“until a trial court grants leave to file a motion for a new trial, the motion for a new trial is
not properly before the court.” Bethel at ¶ 41. The Supreme Court’s observation was
prompted by the fact the trial court in that case had “denied Bethel’s motion for a new trial
and then denied his motion for leave to file that motion.” Id.{¶ 38} Again, however, appellant fails to show the trial court applied an incorrect
standard in the present case. Here, unlike the facts in Bethel, appellant did not file a motion
for new trial at the same time he filed his motion for leave to file a motion for new trial, and
the trial court did not purport to rule on the merits of a motion for new trial in denying
appellant’s motion for leave.
No. 23AP-146 13
{¶ 39} Accordingly, having failed to show the trial court applied an incorrect
standard under Bethel in addressing appellant’s motion for leave to file a delayed motion
for new trial, appellant’s first assignment of error is not well-taken and is overruled.
{¶ 40} Under his second assignment of error, appellant contends the trial court
denied the motion for leave without conducting a “meaningful review” of the two new
affidavits filed in his latest motion for leave. (Appellant’s Brief at 9.) Appellant maintains
none of the affidavits in the two prior motions for leave contained the “specific information”
provided by “Chafin, Jr. and Calvin Smith.” (Appellant’s Brief at 9.)
{¶ 41} At the outset, we note the trial court relied on several alternative grounds for
denying appellant’s motion for leave. First, as noted above, the trial court found appellant
“failed to demonstrate by clear and convincing evidence that he was unavoidably prevented
from filing his motion for a new trial within the time prescribed * * * pursuant to Crim.R.
33(B).” (Feb. 27, 2023 Decision & Entry at 1.) Second, the court found “the purported
‘newly discovered evidence’ proffered in [appellant’s motion] fails to qualify as sufficient
grounds for a new trial under Crim.R. 33(A) insofar as none of the information appears to
be either ‘newly discovered’ or even ‘evidence.’ ” (Feb. 27, 2023 Decision & Entry at 1-2.)
Finally, the trial court found the claims “are barred by res judicata.” (Feb. 27, 2023 Decision
& Entry at 2.)
{¶ 42} As noted above, a defendant is unavoidably prevented from discovering new
evidence if he had “no knowledge of the existence of the new evidence and, in the exercise
of reasonable diligence, could not have learned of its existence within the time prescribed
for filing a motion for new trial.” Lundy at ¶ 11. In this respect, a defendant has “an
obligation to exercise reasonable diligence to discover the alleged ‘new’ evidence.” State v.
Dodson, 10th Dist. No. 22AP-388, 2023-Ohio-701, ¶ 22, citing State v. Cashin, 10th Dist.
No. 17AP-338, 2017-Ohio-9289, ¶ 16. Further, “ ‘[g]iven the defendant’s obligation to
exercise reasonable diligence, the defendant cannot claim that evidence was undiscoverable
simply because no one made efforts to obtain the evidence sooner.’ ” Id., quoting Cashin at
¶ 16, citing State v. Graggs, 10th Dist. No. 16AP-611, 2017-Ohio-4454, ¶ 15. Thus, “ ‘a
defendant cannot demonstrate that he was unavoidably prevented from discovering new
evidence when he could have discovered that evidence earlier had he exercised reasonable
No. 23AP-146 14
diligence and effort.’ ” Id., quoting Cashin at ¶ 16, citing State v. Lenoir, 2d Dist. No. 26846,
2016-Ohio-4981, ¶ 24.
{¶ 43} Ohio courts, including this court, have held that “[d]efendants and their trial
counsel have a ‘duty to make a “serious effort” of their own to discover potential favorable
evidence.’ ” Sevilla at ¶ 13, quoting State v. Anderson, 10th Dist. No. 12AP-133, 2012-Ohio-
4733, ¶ 14, citing State v. Golden, 10th Dist. No. 09AP-1004, 2010-Ohio-4438, ¶ 15. Thus,
“ ‘[b]ald assertions that appellant could not have timely discovered the evidence is not
enough.’ ” Id., quoting Anderson at ¶ 14, citing Golden at ¶ 15. This court has also held:
“ ‘To allow the trial court to gauge the defendant’s diligence, the defendant must describe
all investigative actions undertaken within the 120-day period for timely filing a Crim.R.
33(A)(6) motion and explain why he was unavoidably prevented from discovering the
evidence before the 120-day period elapsed.’ ” Id. at ¶ 14, quoting Cashin at ¶ 17.
Accordingly, “ ‘[m]ere conclusory allegations do not prove that the defendant was
unavoidably prevented from discovering the evidence he seeks to introduce as support for
a new trial.’ ” (Citations omitted.) Id.
{¶ 44} In support of his motion for leave, appellant submitted nine affidavits,
including seven affidavits previously filed in his 2021 motion for leave to file a motion for
new trial (incorporated by reference), as well as two new affidavits submitted by Smith and
Chafin, Jr., respectively. In their affidavits, Smith and Chafin, Jr. related that, on August 12,
2015, they were both present (i.e., sitting together in a car) when the undercover agent
delivered the package to the porch, and they observed the delivery. In his affidavit, dated
May 6, 2022, Chafin, Jr. averred in part: “I knew that my father [Mark Chafin] had put
drugs in my car and I knew that it was drugs he was putting in Smith’s car, but he told
everybody else that they were auto parts.” (Chafin, Jr. Aff.)
{¶ 45} As set forth under the facts, appellant was aware of Chafin, Sr. prior to trial;
in this respect, appellant’s defense at trial was that the drugs in question did not belong to
him, and for that reason defense counsel sought to introduce the testimony and affidavit of
Chafin, Sr. regarding his purported role in the FedEx package that arrived at the Chittenden
Avenue residence. In the two new affidavits filed with appellant’s third motion for leave,
both affiants purport to have witnessed the events at issue. However, as noted by the state,
No. 23AP-146 15
appellant made no argument in his motion or attached materials that these two witnesses,
who included Mark Chafin’s son, were not known to appellant prior to trial.
{¶ 46} This court has held that “a defendant is not unavoidably prevented from
discovering an exculpatory witness when the defense knew or should have known of the
witness prior to the trial.” State v. Dunkle, 10th Dist. No. 19AP-820, 2021-Ohio-1035, ¶ 19,
citing State v. Ambartsoumov, 10th Dist. No. 12AP-878, 2013-Ohio-3011, ¶ 21-30. In
Ambartsoumov, “we noted that ‘[o]ther Ohio courts have similarly held that a defendant
was not “unavoidably prevented from discovering the evidence” where the witnesses were
known to the defense prior to trial.’ ” Id., quoting Ambartsoumov at ¶ 22.
{¶ 47} Significantly, appellant’s latest motion for leave offered no explanation as to
what investigative actions he took regarding these potential witnesses prior to trial or
within the 120-day window. We have consistently held that a trial court does not abuse its
discretion in denying a motion for leave to file a motion for new trial where the appellant
“does not explain any investigative actions taken before trial or within the 120-day time
frame set forth in Crim.R. 33(B), and further fails to explain why he was unavoidably
prevented from discovering the allegedly new evidence upon which he relies as the basis for
his motion for leave.” Dodson at ¶ 24. See also Cashin at ¶ 22 (trial court did not err in
denying motion for leave where appellant “failed to produce any evidence regarding his
efforts to obtain” affidavits of witnesses in order to “establish that he exercised reasonable
diligence to overcome the witnesses’ unwillingness before the 120-day period elapsed”);
Sevilla at ¶ 16-17 (the appellant “made no attempt to explain why it took 16 years for him to
obtain the affidavits, or even how he obtained them,” and documents in support of motion
for leave “did not establish that appellant was unavoidably prevented from obtaining the
evidence set forth in the affidavits within 120 days after the jury’s verdict”).
{¶ 48} Further, while incorporating by reference affidavits previously filed with his
second motion for leave, appellant did not support his third motion for leave with his own
affidavit “attesting to the circumstances of securing” the affidavits of Chafin, Jr. and Smith.
State v. Smith, 1st Dist. No. C-190485, 2020-Ohio-6718, ¶ 18-19 (noting the appellant did
not support his motion for leave with his own affidavit attesting to circumstances regarding
the making of recanting witness’s affidavit, nor did witness’s affidavit speak to such
circumstances, and therefore the motion for leave did not provide evidence demonstrating
No. 23AP-146 16
“unavoidable prevention”). Appellant’s mere conclusory statement in his motion for leave
that he was “unaware of the information stated in the attached affidavits,” is insufficient to
show he was unavoidably prevented from discovering the evidence he now seeks to rely on.
(Sept. 9, 2022 Mot. for Leave at 5.) See Cashin at ¶ 21 (the appellant’s statement that “he
did everything possible to obtain the witnesses’ testimony is a conclusory allegation devoid
of the detail needed to determine whether [he] exercised reasonable diligence”). Rather,
“[t]here is a material difference between being unaware of certain information and being
unavoidably prevented from discovering that information.” State v. Warwick, 2d Dist. No.
01CA33, 2002-Ohio-3649, ¶ 19.
{¶ 49} Here, having “failed to produce any evidence regarding his efforts to obtain
the witnesses’ affidavits,” appellant “cannot establish that he exercised reasonable diligence
to overcome the witnesses’ unwillingness before the 120-day period lapsed.” Cashin at ¶ 22.
Based on the record presented, we conclude the trial court did not err in finding appellant
failed to demonstrate, by clear and convincing evidence, that he was unavoidably prevented
from discovering the evidence upon which he relies within the time prescribed by Crim.R.
33(B). Accordingly, the trial court did not abuse its discretion in denying appellant’s
motion for leave to file a delayed motion for new trial.
{¶ 50} Appellant’s second assignment of error is not well-taken and is overruled.
IV. Conclusion
{¶ 51} Based on the foregoing, appellant’s two assignments of error are overruled
and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
LUPER SCHUSTER and EDELSTEIN, JJ., concur.