[Cite as State v. Craig, 2012-Ohio-1749.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97478
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL CRAIG
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-518877
BEFORE: Celebrezze, P.J., Cooney, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: April 19, 2012
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Appellant, Michael Craig, brings the instant appeal claiming he should be
granted a new trial based on the discovery of new evidence or, at the very least, a hearing
on the issue. After a thorough review of the record and pertinent law, we affirm the trial
court’s denial of appellant’s motion.
I. Factual and Procedural History
{¶2} The factual history underlying this case has previously been recounted by this
court in State v. Craig, 8th Dist. No. 94455, 2011-Ohio-206, ¶ 2-9. Appellant’s
convictions stem from a home invasion. He was found guilty of aggravated burglary,
felonious assault, aggravated robbery, kidnapping, and having a weapon while under
disability, for which he received an aggregate 33-year prison sentence. This factual
history provides the background for appellant’s present appeal, where he alleges that
newly discovered evidence requires a new trial.
{¶3} After appellant’s convictions were affirmed on appeal, he filed a motion for
leave to file a motion for a new trial on August 31, 2011. Attached were several
affidavits of family members attesting that appellant was in New York around the time
the crimes were committed. The trial court reviewed the motion and the state’s response
and, without holding a hearing, denied it on October 4, 2011. The trial court found that
appellant had not demonstrated that he was unavoidably prevented from discovering this
evidence.
{¶4} Appellant then timely perfected the instant appeal, raising one assignment of
error — that he “was denied due process of law when the court, without a hearing,
overruled [his] motion for leave to file a motion for a new trial based on newly discovered
evidence.”
II. Law and Analysis
A. Newly Discovered Evidence
{¶5} A motion for a new trial is governed by Crim.R. 33, and the decision to grant
or deny such a motion is within the sound discretion of the trial court. State v. LaMar,
95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 82. To constitute an abuse of
discretion, the ruling must be unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). “‘The term discretion itself
involves the idea of choice, of an exercise of the will, of a determination made between
competing considerations.’” State v. Jenkins, 15 Ohio St.3d 164, 222, 473 N.E.2d 264
(1984), quoting Spalding v. Spalding, 355 Mich. 382, 384-385, 94 N.W.2d 810 (1959).
{¶6} Specifically, appellant based his motion on Crim.R. 33(A)(6), which allows a
petitioner a new trial “[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.” However, the rule goes further to require “affidavits of the witnesses by whom
such evidence is expected to be given[.]” Where a motion based on newly discovered
evidence is made more than 120 days after the verdict or finding of guilt, as it was in this
case, then petitioners must demonstrate by clear and convincing evidence that they were
unaviodably prevented from discovering the new evidence. Crim.R. 33(B).1
{¶7} Here, appellant’s new evidence consists of the affidavits of his family
members claiming he was in New York state around the time the crimes were committed.
Nothing in his motion indicates why these statements were not available at the time of
trial. The trial court found,
it strains credibility to the breaking point to believe that the defendant in
this case was unavoidably prevented, as required by the rule, from
discovering that he was not only not present at the scene of the crime, but
was not even in the state of Ohio, on the date that the criminal acts for
which he was found guilty were committed.
{¶8} Appellant would have known at the time of his trial who saw him in New
York on the date of the crimes and would not have been unavoidably detained from
subpoenaing his own family members. Just as the trial court found, appellant’s motion
does not set forth sufficient grounds to warrant a hearing where he completely fails to
demonstrate how he was unavoidably prevented from finding these alibi witnesses, all of
whom were members of his family.
{¶9} Even if appellant was able to demonstrate that he was unavoidably prevented
from discovering these particular witnesses, his motion still fails to necessitate a hearing
because this same evidence was presented at trial. The Ohio Supreme Court has set forth
the relevant factors that such a motion should be premised upon.
1 They must also seek leave to file a motion, which is what appellant did in
this case.
To warrant the granting of a motion for a new trial in a criminal case, based
on the ground of newly discovered evidence, it must be shown that the new
evidence (1) discloses a strong probability that it will change the result if a
new trial is granted, (2) has been discovered since the trial, (3) is such as
could not in the exercise of due diligence have been discovered before the
trial, (4) is material to the issues, (5) is not merely cumulative to former
evidence, and (6) does not merely impeach or contradict the former
evidence. Id. at the syllabus. State v. Petro, 148 Ohio St. 505, 76 N.E.2d
370 (1947).
{¶10} Newly discovered evidence must be novel, not merely cumulative of other
evidence presented at trial. Id.
{¶11} Here, Cherrie Gilyard, appellant’s grandmother, testified at trial that
appellant was in New York from July 14, 2008 until the end of November 2008. The
affidavits attached to appellant’s motion for leave to file a motion for new trial aver that
appellant was in New York, staying at Mrs. Gilyard’s house or appellant’s mother’s
house, from approximately July 1, 2008 to November 29, 2008. Therefore, the affidavits
attached to appellant’s motion are merely cumulative, not new evidence.
III. Conclusion
{¶12} The evidence appellant claims is newly discovered was either known to him
at the time of trial or could have been found. Also, the evidence is duplicative of
testimony presented at trial. Therefore, appellant’s motion for leave to file a motion for a
new trial was properly denied by the trial court without a hearing.
{¶13} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
COLLEEN CONWAY COONEY, J., and
EILEEN A. GALLAGHER, J., CONCUR