State v. Hawk

[Cite as State v. Hawk, 2021-Ohio-4533.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, : No. 21AP-265
(C.P.C. No. 11CR-5746)
v. :
(REGULAR CALENDAR)
Jyshonne D. Hawk, :

Defendant-Appellant. :

D E C I S I O N

Rendered on December 23, 2021

On brief: G. Gary Tyack, Prosecuting Attorney, and Mark R.
Wilson, for appellee.

On brief: Jyshonne D. Hawk, pro se.

APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Jyshonne D. Hawk, pro se, appeals from a decision and
entry of the Franklin County Court of Common Pleas denying his motion for leave to file a
motion for new trial. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} By indictment filed October 31, 2011, plaintiff-appellee, State of Ohio,
charged Hawk with one count of attempted murder in violation of R.C. 2923.02 as it relates
to 2903.02, a first-degree felony; and four counts of felonious assault in violation of R.C.
2903.11, second-degree felonies. All five counts in the indictment contained accompanying
firearm specifications in violation of R.C. 2941.145.
{¶ 3} The matter proceeded to a jury trial. In State v. Hawk, 10th Dist. No. 12AP-
895, 2013-Ohio-5794, this court summarized the evidence produced at trial as follows:
No. 21AP-265 2

According to the state's evidence, in early October 2011,
Delilah Collier ("Delilah") and her common-law husband,
Cleophus Rumph-Holiday ("Cleo"), moved into one side of a
double located at 1507 Duxberry Avenue ("1507 Duxberry") in
Columbus, Ohio, along with their children, 15-year-old S.K.,
8-year-old M.H., and 11-month-old C.R. A porch extending
between 1507 Duxberry and the other side of the double,
located at 1505 Duxberry Avenue ("1505 Duxberry"), is
separated only by a metal railing.

At approximately 11:30 p.m. on October 12, 2011, Delilah,
Cleo, and S.K. were seated on the front porch of their house,
listening to music. Police officers arrived and reported they
had received a complaint of loud music and that someone on
the porch was holding a gun. After finding no gun, the police
admonished the group to turn down the music and then left.
Shortly thereafter, Delilah's nephew, Darrick Jordan, joined
the group on the porch.

At approximately the same time, a woman named Brenda
Peck, who lived across the street at 1510 Duxberry Avenue
("1510 Duxberry"), but at the time was sitting on the front
porch of a double just east of 1507 Duxberry, shouted at
Delilah to turn down the music. Delilah accused Brenda of
calling the police, and the two women exchanged heated
words. To avoid further confrontation with Brenda, Delilah
went to an internet café with Cleo, Darrick, and the children.

The group returned to 1507 Duxberry sometime before 1:00
a.m. on October 13, 2011. Cleo and the children went inside
the house; Delilah and Darrick sat on the front porch smoking
cigarettes. Delilah and Darrick observed a light-skinned
African-American man emerge from the front door of the
house at 1510 Duxberry, holding what Delilah described as a
"long gun." (Tr. 55.) According to Delilah, the man shouted
"[w]ho in the fuck has a problem with me and my baby's mom
over here." (Tr. 57.) As the man continued to shout, persons
from inside 1510 Duxberry wrestled the gun from him and
pulled him into the house.

Moments later, the light-skinned man exited 1510 Duxberry,
removed his jacket and shirt, and ran into the street. A dark-
skinned African-American man wearing a hoodie sweatshirt
walked to the bottom of the stairs at 1507 Duxberry and
averred he had been trying to calm the light-skinned man. The
light-skinned man then ran onto the front porch at 1505
No. 21AP-265 3

Duxberry and began arguing with Darrick. Hearing the
argument, Cleo and S.K. came out of the house. The light-
skinned man began shouting at Cleo and attempted to strike
him. Cleo struck the man in retaliation.

According to Delilah, the light-skinned man then removed a
gun from his back pocket, fired several shots as he ran down
the stairs from the porch, and ran away. S.K. and Darrick
testified that the light-skinned man ran from the porch to the
front yard after being struck by Cleo. Darrick, S.K., and Cleo
all testified that they did not actually see a gun in the man's
hands when shots were fired. However, Darrick testified that
he heard gunshots, and Cleo and S.K. testified that they saw
"fire," coming from the front yard where the man was
standing. (Tr. 179, 242.)

Both Delilah and S.K. averred that the dark-skinned man ran
from the front porch around the side of the house toward the
back yard when the gunfire began. Both testified that the
dark-skinned man did not fire the shots.

Cleo was struck in the mid-section by multiple bullets and
sustained serious injuries. Delilah, Darrick, and S.K. were also
shot. Thereafter, the four victims ran inside the house. Cleo
dialed 911, and Delilah reported to the police dispatcher that
she and several others had been shot by "people across the
street." (Tr. 84, exh. No. 33 (CD of 911 call.)) According to
Delilah, the group retreated to the back of the house because
they heard several gunshots outside.

Columbus Police Officer Zachary Rosen was dispatched to the
scene at approximately 12:55 a.m.; he arrived less than a
minute later. He was directed to the scene by some people
standing outside a house located at 1501 Duxberry Avenue
("1501 Duxberry"). When Officer Rosen arrived at 1507
Duxberry, he pounded on the door for a minute or two; when
no one answered, he kicked in the door to gain entry. Inside
the house, he found four individuals who had sustained
gunshot wounds. The shooting victims were thereafter
transported to various hospitals.

The police interviewed Delilah at the hospital. At trial, Delilah
admitted that during this interview, she spontaneously stated
that she did not see a gun in the light-skinned man's hand. She
attributed this statement to the fact that she was traumatized
No. 21AP-265 4

by the shooting and was taking pain medications. She
admitted, however, that during the same interview, she
correctly recounted several other details of the shooting. She
averred at trial that she presently remembered seeing the
light-skinned man remove a gun from his back right pocket
and fire several shots.

Columbus Police Detective Randy Vanvorhis interviewed
Brenda Peck after the shooting and she consented to a search
of 1510 Duxberry. During that search, police recovered an
empty rifle case and an empty handgun case from the
basement, ammunition from one of the bedrooms, and a
baggie containing .22 caliber ammunition from the front yard.
During a search of 1507 Duxberry, no guns or ammunition
were recovered; however, spent shell casings were recovered
from both the front porch and front yard. Detective Vanvorhis
admitted that the police did not request expert analysis
regarding bullet trajectory or fingerprint analysis of the shell
casings recovered from 1507 Duxberry.

Detective Vanvorhis eventually developed appellant as a
suspect, and generated two photo arrays which included
appellant's photograph. Because appellant had no criminal
record at the time of the incident, the photograph used in the
first array was taken from the LEADS database. This photo
array was presented to Delilah and S.K. Delilah unequivocally
identified appellant as the light-skinned African-American
man who fired the shots on October 13, 2011. In the "Viewer's
Statement" portion of the document accompanying the photo
array, Delilah wrote "Photo number two [appellant] looks just
like the person who came to my home and shot me and my
family." (State's exh. No. 41(A)). S.K. circled appellant's
picture in the photo array, but candidly admitted at trial that
he told the police immediately after identifying appellant that
he "[did not] know if that's him." (Tr. 186.) In the "Viewer's
Statement" portion of the document accompanying the photo
array, S.K. wrote "I thought it was photo #2 [appellant] but
that's not the right person." (Tr. 186.) S.K. testified at trial,
however, that there was only one light-skinned African-
American man involved in the incident and that he was
certain the dark-skinned man did not fire the shots.

The second photo array, which included a mug shot of
appellant following his arrest, was presented to Darrick and
Cleo. Darrick was unable to identify appellant as the shooter.
At trial, Darrick averred he told the police he could not make
No. 21AP-265 5

an identification because the shooter "had * * * fuller facial
hair and he was high yellow." (Tr. 145; State's exh. No. 43A.)
Cleo first identified a photograph of someone other than
appellant as the shooter, but indicated he was only 50 percent
certain of the identification and wanted to look at the
photographs again "because they look[ed] alike." (State's exh.
No. 44(A.)) Cleo then selected appellant as the shooter and
indicated he was "100% sure." (State's exh. No. 44A.) He
wrote in the "Viewer's Statement" portion of the document
accompanying the photo array that "[#]5 [appellant] shot me
on 13th." (State's exh. No. 44A.)

A few days before trial, S.K. identified a photograph of Jywaun
Yoest, appellant's half-brother, as the dark-skinned African-
American man present at the scene on October 13, 2011. At
trial, Delilah, Cleo, Darrick, and S.K. all identified appellant
as the person who shot them. Both Darrick and S.K.
unequivocally testified that the dark-skinned man was not the
shooter; rather, it was the light-skinned man.

Three additional witnesses, Verlin Peck, Shea Wade, and
Nicole Wade testified about the events of October 12 and 13,
2011 as part of the state's case-in-chief. Verlin testified that he
resided at 1510 Duxberry with his daughter, Brenda Peck, her
children, and the children's father, appellant. Sometime after
midnight on October 13, 2011, Verlin was inside 1510
Duxberry performing household chores when he heard
appellant run up and down the stairs. Thereafter, Brenda told
Verlin that appellant had taken a .22 rifle outside. Appellant's
mother, Jeanetta Yoest, who lived next door at 1512 Duxberry,
retrieved the rifle from appellant, unloaded it, and handed it
to Verlin. Verlin examined the rifle to ensure it contained no
shells and then stored it in the basement. Soon thereafter,
Brenda ran into the house, closed the front door, and reported
that appellant had been in a fight outside and that "shots had
occurred." (Tr. 286-87.) Verlin told her that she should get
away from the door and protect her children.

At some point after the shootings, police took Verlin to the
police station for questioning. Verlin told the police that
Brenda told him that "Shonne shot a gun." [("Shonne" is
nickname for Hawk.)] (Tr. 290.) The police performed a
gunshot residue test on Verlin's hands, which revealed
particles "highly indicative of a gunshot primer residue," and
that such was consistent with a person having just discharged
a firearm, having been in the vicinity of a firearm upon
No. 21AP-265 6

discharge, or having handled an item with gunshot primer
residue on it. (Tr. 288, State's exh. No. 40.)

At trial, Verlin admitted he did not see who fired the gunshots
and did not even hear any gunshots being fired outside. He
denied firing a weapon on October 13, 2011.

At the time of the incident, Shea and Nicole Wade lived at 1501
Duxberry. Both were seated on their front porch and saw the
neighbors at 1510 Duxberry wrestle a long gun away from
appellant. According to the Wades, appellant did not go back
inside 1510 Duxberry after the gun was taken away; rather, he
immediately began arguing with the residents of 1507
Duxberry. He then walked toward the Wades and asked Shea
whether he would confront a person who had been
disrespectful to the mother of his child. When Shea responded
affirmatively, appellant walked up on the porch at 1505
Duxberry. One of the men at 1507 Duxberry punched
appellant, and he fell backward on the porch. Shea then heard
several gunshots and saw appellant run away.

According to Shea, appellant was wearing only sweatpants
with red shorts underneath at the time of the shooting. He did
not think appellant was the shooter because he did not see
appellant with a gun, the gunshots began immediately after
appellant was punched and fell down on the porch, and the
shots came from the front yard and continued after appellant
ran away from the scene. Although Shea admitted that he
would not have been able to see a gun in the pocket of
appellant's sweatpants, he averred that he did not think
appellant had a gun in his pocket because his sweatpants were
not "sagging." (Tr. 340.) Shea further testified that he told the
police during interviews on October 24 and November 7, 2011
that appellant could not have been the shooter.

Nicole testified that after the shots were fired, she heard
someone shout, "it was Shonne, it was Shonne." (Tr. 368.)
Nicole thought the person was mistaken because she did not
see appellant with a gun when he was talking to Shea and she
did not believe appellant would have had time to fire a gun
after he was punched and fell backward on the porch. Nicole
averred that she told police in an interview on November 15,
2011 that appellant could not have fired the shots because they
came from the front yard of 1507 Duxberry and he was
standing on the porch of 1505 Duxberry at the time. She
further averred that she told a defense investigator in May or
No. 21AP-265 7

June 2012 that she observed an African-American male
wearing dark clothing exit 1510 Duxberry and try to defuse the
situation between appellant and the people at 1507 Duxberry.
Nicole admitted that she saw no one other than appellant
arguing with the residents of 1507 Duxberry, and that
appellant was "upset" and "out of * * * control" during the
incident. (Tr. 389.)

Appellant was arrested on October 21, 2011. On December 2,
2011, the police recovered a firearm from an abandoned house
located at 260 South Fourth Street. A test fire of that firearm
established its operability, and comparison of spent shell
casings from the test fire with information obtained from a
national ballistics database revealed a match with shell
casings recovered from both the October 13, 2011 shooting
and a shooting on November 8, 2011. Police did not request
fingerprint analysis of the gun recovered on December 2,
2011.

Several witnesses, including appellant, testified on appellant's
behalf. According to these witnesses, at the time of the
incident, Brenda and Jeanetta were sitting with Mona Lisa
Conley and her minor grandchildren, T.J. and Q.C., on the
front porch of Lisa's house at 1511 Duxberry. Following the
argument between Brenda and Delilah, appellant and Jywaun
arrived at Lisa's house. According to Lisa, an African-
American man emerged from 1507 Duxberry and stared at the
group seated on Lisa's porch; Lisa admonished Jywaun not to
say anything to the man. Appellant and Jywaun then left
Lisa's house. Appellant walked across the street to his house.
As Jywaun walked away, he slipped on the steps; Jeanetta,
Lisa, and T.J. observed a black-handled gun protruding from
his right pocket. Jeanetta was not surprised Jywaun had a gun
because he had carried one with him for several years.

A short time later, appellant exited his house carrying a "long
gun." (Tr. 518.) Jeanetta left Lisa's porch and walked over to
help Brenda and Verlin get the rifle away from appellant.
Jeanetta testified she did so because she knew he was angry
about the confrontation between Brenda and Delilah and she
was afraid of what he would do with a gun. Appellant
eventually went back into the house, but emerged a short time
later and walked onto the porch at 1505 Duxberry. Jeanetta
followed appellant because she wanted to stop him from
fighting with the neighbors. According to Jeanetta, appellant
did not have a gun at this point.
No. 21AP-265 8

At the same time, Jywaun walked to the bottom of the steps at
1507 Duxberry and attempted to mollify the situation between
the neighbors and appellant. According to both T.J. and Lisa,
Delilah went inside her house and emerged with what they
believed to be a gun and handed it to one of the men on the
porch. Lisa testified that she heard the sound of a gun click at
1507 Duxberry and went inside her house. She heard gunshots
immediately thereafter, but did not see who fired the shots.

According to T.J. and Jeanetta, Cleo hit appellant while
appellant was standing on the porch at 1505 Duxberry.
Jeanetta testified that after Cleo hit appellant, she saw Jywaun
standing in the front yard with his arm extended and a gun in
his hand, firing several shots. T.J. testified that although he
did not actually see Jywaun pull the trigger, he "seen the
gunfire come from the spot [Jywaun] was standing." (Tr. 555.)
T.J. was certain that Jywaun fired the gun, and that no shots
were fired from the porch at 1505 Duxberry. Q.C. confirmed
T.J.'s testimony that Jywaun was standing at the bottom of the
steps at 1505 Duxberry when the shots were fired. Q.C.
testified that he did not actually see Jywaun fire a weapon;
however, he observed the flash of a gun from the spot where
Jywaun was standing. Both appellant and Jywaun then ran
from the scene.

Immediately after the shooting, Lisa heard her neighbor,
Trish, yell "Shonne, you did this, this is your fault. Shonne,
ain't nobody done this but you, Shonne." (Tr. 526-27.) When
the police arrived, she overheard Delilah report that "the
white guy Shonne across the street did it." (Tr. 527.)

Lisa, T.J., Q.C., and Jeanetta testified that they did not
immediately inform the police about what transpired on
October 13, 2011 because they were distrustful of the police.
Lisa and T.J. first recounted their versions of the events to a
defense investigator in May 2012. After appellant was
arrested, Jeanetta told Jywaun he should tell the police he was
the shooter. Jeanetta admitted that she not tell the police that
Jywaun was the shooter until June 2012.

Appellant testified that he and Jywaun returned to the
Duxberry Avenue neighborhood late on October 12, 2011 after
drinking at a friend's house. The two men joined Brenda,
Jeanetta, and Lisa on Lisa's front porch. After smoking
marijuana, appellant walked to his house with Brenda. Brenda
told him that the neighbors at 1507 Duxberry Avenue had
No. 21AP-265 9

been "rude and nasty" to her, calling her names and accusing
her of calling the police on them. (Tr. 590.) Appellant was
immediately angry and left his house to confront the
neighbors. When he challenged Delilah about her argument
with Brenda, Delilah threatened to have her boyfriend beat
him up.

Appellant returned to his house and retrieved a .22 rifle from
upstairs because he "had an attitude" and he knew the people
at 1507 Duxberry had guns and shot them every day. (Tr. 591.)
According to appellant, the rifle was not loaded; however, he
put a baggie of .22 caliber ammunition in his jacket pocket on
the way out the door. Jeanetta, Brenda, and Verlin wrestled
the rifle away from him.

Appellant then ran into the street and started arguing with
Cleo, who was standing in the doorway of 1507 Duxberry.
While he was arguing with Cleo, Darrick walked down the
steps from the porch and stood near Jywaun. Because he
thought Darrick wanted to fight him, appellant removed his
jacket and placed it on the ground near his front yard. As he
did so, the baggie of bullets fell out of the pocket.

Appellant then walked to the Wades' front yard and asked
Shea what he would do if someone made disrespectful
comments to the mother of his child. When Shea responded
that he would confront such a person, appellant walked onto
the porch at 1505 Duxberry and continued to argue with Cleo.
Cleo punched appellant, and appellant immediately saw a
"flash" coming from the front yard, near the area where
Jywaun and Darrick had been standing. (Tr. 599.) Appellant
assumed he was the target of the shooting, so he ran away.

As he was running, he noticed Jywaun running behind him in
the same direction. Jywaun told him that he fired the shots
because the people at 1507 Duxberry had a gun and were going
to shoot him and appellant. When appellant returned to his
house about an hour later, he saw the police canvassing the
neighborhood. He did not tell the police what had happened
because he was afraid to do so.

Appellant later learned that the police were looking for him,
and he attempted, albeit unsuccessfully, to contact them.
Following his October 21, 2011 arrest, he provided a statement
to the police. He did not tell the police that Jywaun had fired
No. 21AP-265 10

the shots because Jywaun is his brother and appellant did not
fully understand that he was being charged with a crime.

Appellant acknowledged that he and Jywaun have easily
distinguishable skin tones—appellant is light-skinned, while
Jywaun is dark-skinned. Appellant denied that he was armed
with another gun after the rifle was taken away from him, and
averred that he did not believe he needed a gun because he
knew Jywaun was carrying one. He admitted that Jywaun and
Darrick were not arguing with one another, and that Jywaun
was not the one who was "outraged" and "out of control." (Tr.
616.) He denied firing the shots on October 13, 2011.

On June 22, 2012, Detective Vanvorhis received a telephone
call from a person who identified himself only as appellant's
brother; the call was audiotaped. Appellant identified the
voice on the audiotape as that of Jywaun. The audiotape was
played for the jury at trial. The transcript of the call establishes
that the caller stated he had committed the crimes with which
appellant had been charged, and that he wanted to turn
himself into the police, "but only if my brother is for sure that
he can get out." (Tr. 670.) According to Detective Vanvorhis,
the caller never provided a statement in person.

Hawk at ¶ 2-36.
{¶ 4} Following deliberations, the jury found Hawk guilty of all five charges. The
trial court sentenced Hawk to an aggregate term of 40 years in prison, journalizing his
convictions and sentence in an October 3, 2012 judgment entry. Hawk appealed, arguing,
as relevant here, that his convictions were against the manifest weight of the evidence. In
a December 31, 2013 decision, this court affirmed Hawk's convictions, concluding the
manifest weight of the evidence supported Hawk's convictions of attempted murder and
felonious assault. Hawk at ¶ 63-65.
{¶ 5} Nearly seven years after the date of his conviction, on September 26, 2019,
Hawk filed a motion to void the judgment and requested leave to file a delayed motion for
new trial ("first motion for leave"). In his first motion for leave, Hawk argued the state
withheld exculpatory evidence in the form of documentation of Jywaun's arrest. Hawk
asserted the evidence demonstrated that Jywaun had surrendered to Detective VanVorhis
after calling the detective and admitting his own guilt in the shootings. In support of his
first motion for leave, Hawk filed Jywaun's affidavit ("Jywaun's first affidavit"), dated
No. 21AP-265 11

September 2, 2016, more than three years before the date of Hawk's motion for leave. Hawk
also filed a printout from the Franklin County Municipal Court's website for case No.
2012CRA-015404 indicating that Jywaun had been arrested on June 22, 2012, listing the
complaining officer as Detective VanVorhis, and indicating the case was dismissed on
June 26, 2012. However, the municipal court printout mistakenly listed the offense date as
November 11, 2011, though Hawk did not note the mistaken date in his first motion for
leave. Hawk argued that the municipal court arrest record proves that Detective VanVorhis
perjured himself when he testified that Jywaun never provided an in-person statement to
police. The state opposed Hawk's first motion for leave to file a delayed motion for new
trial.
{¶ 6} In a November 7, 2019 judgment entry, the trial court denied Hawk's first
motion for leave to file a delayed motion for new trial. The trial court found that Hawk
could not show by clear and convincing evidence that he was unavoidably prevented from
discovering the evidence of Jywaun's arrest record within the 120-day deadline.
Specifically, the trial court noted that Jywaun is Hawk's brother and was present at trial,
although Jywaun invoked his Fifth Amendment right against self-incrimination at trial.
Further, the trial court provided alternative grounds to deny Hawk's first motion for leave:
the trial court noted that even if it were to find that Hawk was unavoidably prevented from
discovering the evidence of Jywaun's arrest within the 120-deadline, the arrest record
indicates an arrest for an offense date of November 11, 2011, nearly one month after the
October 13, 2011 date of Hawk's offenses, and thus was not evidence that Jywaun ever made
an in-person statement relevant to Hawk's charged offenses. Finally, the trial court noted
that the arrest record, itself, is not proof that Jywaun ever made an in-person statement to
Detective VanVorhis, and Jywaun's first affidavit states only that he tried to turn himself
in, was arrested and jailed, and then released. Jywaun's first affidavit does not contain any
statement that he was interviewed about Hawk's crimes or ever made an in-person
statement to Detective VanVorhis. Hawk did not appeal the trial court's denial of his first
motion for leave.
{¶ 7} On March 23, 2021, more than 16 months after the trial court denied his first
motion for leave, Hawk filed another motion for leave to file a delayed motion for new trial
("second motion for leave"). In his second motion for leave, Hawk again argued the state
No. 21AP-265 12

withheld exculpatory evidence of Jywaun's arrest for the same offenses and that he was
unavoidably prevented from discovering the evidence of that arrest within the Crim.R. 33
time frame. Attached to his second motion for leave, Hawk filed copies of Jywaun's
municipal court case, including (1) a June 22, 2012 criminal complaint charging Jywaun
with felonious assault, (2) a notification of need to amend the complaint to reflect the
proper offense date of October 13, 2011, (3) a June 26, 2012 motion to dismiss pending
felony signed by the prosecutor, (4) a June 26, 2012 entry dismissing the case against
Jywaun, and (5) a media request from WBNS-TV to record, videotape, and broadcast the
proceedings in Jywaun's case. Additionally, Hawk filed his own affidavit dated March 15,
2021, a December 11, 2020 affidavit from his friend, Danika Wickham, and a second
affidavit of Jywaun, dated February 1, 2021. The state opposed Hawk's second motion for
leave.
{¶ 8} In an April 26, 2021 decision and entry, the trial court denied Hawk's second
motion for leave, finding Hawk's motion not well-taken. Hawk timely appeals.
II. Assignment of Error
{¶ 9} Hawk assigns the following error for our review:
The trial court abused its discretion by denying Hawk's Crim
33(B) motion for leave to file a delayed motion for new trial, as
the context of the "not well taken" decision is contrary to the
United States Supreme Court preceident set forth in Banks v.
Dretke.

(Sic passim.)
III. Analysis
{¶ 10} In his sole assignment of error, Hawk argues the trial court abused its
discretion in denying his motion for leave to file a delayed motion for new trial.
{¶ 11} An appellate court reviews a trial court's decision granting or denying a
Crim.R. 33 motion for new trial for an abuse of discretion. State v. Townsend, 10th Dist.
No. 08AP-371, 2008-Ohio-6518, ¶ 8, citing State v. Schiebel, 55 Ohio St.3d 71, 76 (1990).
Similarly, we will not disturb a trial court's decision granting or denying a Crim.R. 33(B)
motion for leave to file a delayed motion for new trial absent an abuse of discretion.
Townsend at ¶ 8, citing State v. Pinkerman, 88 Ohio App.3d 158, 160 (4th Dist.1993). An
No. 21AP-265 13

abuse of discretion connotes a decision that is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 12} Hawk premised his motion for new trial on newly discovered evidence that
he alleges demonstrated misconduct on the part of the prosecution and witnesses for the
state. Crim.R. 33 provides, in pertinent part:
(A) Grounds. A new trial may be granted on motion of the
defendant for any of the following causes affecting materially
his substantial rights:

***

(2) Misconduct of the jury, prosecuting attorney, or the
witnesses for the state;

***

(6) When new evidence material to the defense is discovered
which the defendant could not with reasonable diligence have
discovered and produced at the trial.

***

(B) Motion for new trial; form, time.

Application for a new trial shall be made by motion which,
except for the cause of newly discovered evidence, shall be filed
within fourteen days after the verdict was rendered, or the
decision of the court where a trial by jury has been waived,
unless it is made to appear by clear and convincing proof that
the defendant was unavoidably prevented from filing his
motion for a new trial, in which case the motion shall be filed
within seven days from the order of the court finding that the
defendant was unavoidably prevented from filing such motion
within the time provided herein.

Motions for new trial on account of 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. If it is made to appear
by clear and convincing proof that the defendant was
unavoidably prevented from the discovery of the evidence upon
which he must rely, such motion shall be filed within seven
days from an order of the court finding that he was unavoidably
No. 21AP-265 14

prevented from discovering the evidence within the one
hundred twenty day period.

{¶ 13} Thus, Crim.R. 33(B) contemplates a two-step procedure when a defendant
seeks to file a motion for new trial outside either the 14-day deadline for motions filed under
Crim.R. 33(A)(2) or the 120-day deadline for motions filed under Crim.R. 33(A)(6). In the
first step, the defendant must demonstrate that he was unavoidably prevented from
discovering the evidence relied upon to support the motion for new trial. State v. Bethel,
10th Dist. No. 09AP-924, 2010-Ohio-3837, ¶ 13; State v. Gaven, 10th Dist. No. 16AP-645,
2017-Ohio-5524, ¶ 13, 17. In the second step, if the trial court finds unavoidable prevention
by clear and convincing evidence, then the defendant must file the motion for new trial
within seven days from the trial court's order. Bethel at ¶ 13; Gaven at ¶ 13, 17.
{¶ 14} A defendant demonstrates he was unavoidably prevented from discovering
the new evidence within the time period for filing a motion for new trial when the defendant
"had no knowledge of the evidence supporting the motion for new trial and could not have
learned of the existence of the evidence within the time prescribed for filing such a motion
through the exercise of reasonable diligence." Bethel at ¶ 13, citing State v. Berry, 10th Dist.
No. 06AP-803, 2007-Ohio-2244, ¶ 19. "Clear and convincing proof that the defendant was
unavoidably prevented from filing requires more than a mere allegation that a defendant
has been unavoidably prevented from discovering the evidence he seeks to introduce as
support for a new trial." (Internal quotations and citations omitted.) State v. Lee, 10th
Dist. No. 05AP-229, 2005-Ohio-6374, ¶ 9. "The standard of 'clear and convincing evidence'
is defined as that measure or degree of proof that is more than a mere preponderance of the
evidence, but not to the extent of such certainty that as is required beyond a reasonable
doubt in criminal cases, and that will produce in the mind of the trier of fact a firm belief or
conviction as to the facts sought to be established." Townsend at ¶ 7, citing Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶ 15} In order to warrant the granting of a motion for new trial in a criminal case
based on newly discovered evidence, the defendant must show 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
No. 21AP-265 15

cumulative to former evidence, and (6) does not merely impeach or contradict the former
evidence." State v. Petro, 148 Ohio St. 505 (1947), syllabus. See also Lee at ¶ 9. In his
motion for leave to file a motion for new trial, Hawk argued he was unavoidably prevented
from discovering the evidence of Jywaun's arrest and that such evidence demonstrates both
that the state improperly withheld exculpatory evidence and that Detective VanVorhis
perjured himself.
{¶ 16} As a threshold matter, we consider the application of res judicata to this case.
"The doctrine of res judicata 'prevents repeated attacks on a final judgment and applies to
issues that were or might have been previously litigated.' " State v. Russell, 10th Dist. No.
06AP-498, 2006-Ohio-6221, ¶ 12, quoting State v. Sneed, 8th Dist. No. 84964, 2005-Ohio-
1865, ¶ 16. As this court has stated, "[r]es judicata applies to Crim.R. 33 motions for new
trial." State v. Braden, 10th Dist. No. 17AP-321, 2018-Ohio-1807, ¶ 11, citing State v.
Waddy, 10th Dist. No. 15AP-397, 2016-Ohio-4911, ¶ 40, citing State v. Russell, 10th Dist.
No. 04AP-1149, 2005-Ohio-4063, ¶ 6-7; State v. Fox, 10th Dist. No. 08AP-704, 2009-Ohio-
1327, ¶ 7 (the doctrine of res judicata bars re-litigation of issues in a motion for leave to file
a delayed motion for new trial when those issues were or could have been addressed in
earlier court proceedings). See also State v. Hill, 8th Dist. No. 108250, 2020-Ohio-102,
¶ 36 (" '[r]es judicata bars all subsequent new trial motions that are based on claims that
were brought or could have been brought on direct appeal or in prior motions filed under
Crim.R. 33' "), quoting State v. Williamson, 8th Dist. No. 107117, 2019-Ohio-1985, ¶ 14.
{¶ 17} Here, in addition to his direct appeal, Hawk previously filed a motion for
leave to file a delayed motion for new trial. Though Hawk filed more documentation in
support of his second motion for leave, Hawk does not explain how the matters raised in
the instant second motion for leave could not have been raised in his first motion for leave.
See Russell, 2006-Ohio-6221, at ¶ 12 (where an appellant previously filed a direct appeal
and a prior motion for new trial, the trial court does not abuse its discretion in denying
appellant's successive motion for new trial on the grounds of res judicata).
{¶ 18} Hawk's argument in support of both his first and second motions for leave is
that the evidence of Jywaun's arrest demonstrates that Detective VanVorhis perjured
himself in his testimony when he stated that Jywaun never provided an in-person
statement to police. However, in Jywaun's second affidavit filed along with the second
No. 21AP-265 16

motion for leave, Jywaun avers that when he turned himself into police, he "almost
immediately told [the detective] that [he] did not want to make a statement at that time but
that [he] was the one [the detective had] spoke with before on the phone." (Feb. 2, 2021
Jywaun's Second Aff. at 1.) Thus, though Hawk filed more thorough documentation in
support of his second motion for leave, the documents, themselves, do not demonstrate
that Detective VanVorhis perjured himself in his testimony.
{¶ 19} Moreover, we need not decide the question of whether the evidence provided
in support of Hawk's second motion for leave would satisfy the Crim.R. 33(A) standard for
a new trial because, under the two-step process for an untimely motion for new trial, Hawk
fails to first establish, pursuant to Crim.R. 33(B), that he was unavoidably prevented from
discovering the evidence of Jywaun's arrest within the applicable time frame. Jywaun's
second affidavit states that his arrest and arraignment were broadcast on the news, and
Hawk testified at trial that he saw the news report of Jywaun's arrest. Additionally, after
Jywaun's release from custody but prior to Hawk's trial, the state filed supplemental
discovery of a DVD interview of Jywaun and audio recordings of Jywaun's jail phone calls.
We also note, as the trial court did when it denied Hawk's first motion for leave, that Jywaun
is Hawk's brother and was present at Hawk's trial. Thus, Hawk does not establish he either
had no knowledge of Jywaun's arrest or could not have learned of Hawk's arrest with the
exercise of due diligence within the applicable Crim.R. 33 time frame. Bethel at ¶ 13.
{¶ 20} Similarly, to the extent we construe Hawk's motion as one under Crim.R.
33(A)(2), Hawk does not establish that he was unavoidably prevented from learning of the
prosecutor's alleged withholding of exculpatory evidence such that he could not have filed
his motion for new trial within 14 days of the jury's verdict. "[T]he suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). "To prove a
Brady violation, a defendant must establish that: (1) the prosecution withheld evidence;
(2) the defense was not aware of the evidence; and (3) the evidence withheld was material
and exculpatory." (Emphasis added.) State v. Zeune, 10th Dist. No. 13AP-147, 2013-Ohio-
4156, ¶ 18, citing State v. Monroe, 10th Dist. No. 04AP-658, 2005-Ohio-5242, ¶ 17. Thus,
there can be no Brady violation where the defendant was aware of the evidence allegedly
No. 21AP-265 17

withheld. Zeune at ¶ 19 ("a Brady violation involves the post-trial discovery of information
that was known to the prosecution, but unknown to the defense") (emphasis sic). As we
explained above, the record indicates Hawk had knowledge of Jywaun's arrest at the time
of his trial. Thus, the trial court did not abuse its discretion in concluding Hawk did not
establish he was unavoidably prevented from filing a motion for new trial under Crim.R.
33(A)(2) within 14 days of the jury's verdict.
{¶ 21} Accordingly, even if we were to find that res judicata did not operate to bar
Hawk's second motion for leave, we nonetheless conclude the trial court did not abuse its
discretion in concluding that Hawk did not demonstrate he was unavoidably prevented
from discovering the evidence of Jywaun's arrest or of learning of the prosecutor's alleged
misconduct. Therefore, the trial court did not abuse its discretion in denying Hawk's
second motion for leave to file a delayed motion for new trial. We overrule Hawk's sole
assignment of error.
IV. Disposition
{¶ 22} Based on the foregoing reasons, the trial court did not abuse its discretion in
denying Hawk's successive motion for leave to file a delayed motion for new trial. Having
overruled Hawk's sole assignment of error, we affirm the judgment of the Franklin County
Court of Common Pleas.
Judgment affirmed.

DORRIAN, P.J., and JAMISON, J., concur.