State v. Ayers

[Cite as State v. Ayers, 2022-Ohio-1910.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. Earle E. Wise, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
:
-vs- :
: Case No. 2021CA00134
KAYLA AYERS :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Crimina appeal from the Stark County Court
of Common Pleas, Case No. 2012-CR-
1567

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 6, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE L. STONE BRIAN HOWE
Prosecuting Attorney Ohio Innocence Project
BY: VICKI L. DESANTIS PO. Box 210040
Assistant Prosecutor Cincinnati, OH 45221
110 Central Plaza South, Ste. 510
Canton, OH 44702-1413
[Cite as State v. Ayers, 2022-Ohio-1910.]

Gwin, J.,

{¶1} Appellant Kayla Jean Ayers [“Ayers”] appeals from the November 2, 2021

Judgement Entry of the Stark County Court of Common Pleas overruling her motion for

a New Trial and her Petition for Post-Conviction Relief without a hearing.

Facts and Procedural History

{¶2} Before the fire on the evening of October 3, 2012, Ayers and her family (her

boyfriend and their three young children) were living with her father and his family (his

girlfriend and her two children) in his Massillon residence. 2T. at 307-3121. Her father,

Jeff Ayers, eventually discussed finances with Ayers and the fact that she was not

contributing much toward the household expenses. Their relationship deteriorated due

to the financial situation, and Mr. Ayers told his daughter to leave and care for her own

family. Ayers responded by telling her father that she was not leaving and that he

should leave. Ayers then threatened to burn the house down. Fearful for himself and

his pregnant girlfriend, Mr. Ayers decided to leave and force Ayers to care for her family

on her own. When he told his daughter of his decision, Ayers threatened to burn the

house down if he were to leave. Id. At the time of this threat, a friend of Mr. Ayers, Jason

Pandrea (who was having a sexual relationship with Ayers), overheard Ayers's threat.

Mr. Ayers decided to leave the Massillon home nonetheless, and left for West Virginia

to seek employment and new living arrangements during the morning of October 3,

2012. 2T. at 307-321; 339.

{¶3} On October 3, 2012, Ayers's boyfriend, Brennan Scott, left for work as usual,

picking up his boss on the way. 2T. at 325-376. After work, he picked up Ayers and then

1 For clarity, the transcript from Ayers’s jury trial on January 28, 29, and January 30, 2013 will be
referred to as, “__T.__,” signifying the volume and the page number.
Stark County, Case No. 2021CA00134 3

went to get their children from day care around 6:30 p.m. 2T. at 327. Scott then took his

boss and his boss’s children home to Beach City, where Scott stayed for a couple hours

socializing. 2T. at 327-328. Two of Ayers’s children, the daughters, who were 5 and 4,

boarded a church bus to take them to evening services around that time. 2T. at 327.

When Brennan Scott returned around eight o'clock that night, he found fire trucks around

his house. 2T. at 328.

{¶4} Karen Ball, a regular attendee at this church, arrived at the Ayers

residence in order to pick up Ayers and her three children. 2T. at 376-377. Ball knocked

on the front door, but no one answered the door. Id. at 378. Instead, she heard the dog

barking, and then heard someone say, "Shhh." 2T. at 378-379. Getting no answer, Ball

went to the kitchen door. 2T. at 379. Ball was able to see Ayers’s purse and a backpack

on a chair on the deck. 2T. at 379. Ball talked briefly with a neighbor, which led her to

believe that Ayers was inside the home. 2T. at 380-381.

{¶5} While at church, Ball decided to leave the service early to check on Ayers.

2T. at 381. Arriving at the home around eight o'clock, Ball noticed a flickering emanating

from a basement window. 2T. at 381-382. Ball knocked on the basement door, but got

no answer other than the dog barking. Ball called to Ayers repeatedly, but got no answer.

2T. at 383. She went once again to the kitchen door to knock and call to Ayers. Still

getting no answer other than the dog's persistent barking, Ball returned to her car to get

her cane, after which she intended to go to a neighbors to ask about Ayers. 2T. at 384.

When she got to her car, she heard a thump, turned around, and saw Ayers running to

her with her youngest child, three-year- old Bubba (Brennan, Jr.). 2T. at 384-385. Ayers

told Ball to call 9-1-1, so the disabled woman went to the neighbors' and had them call 9-
Stark County, Case No. 2021CA00134 4

1-1. 2T. at 385-386. While waiting for the fire fighters to respond, Ball stayed with Ayers

and Bubba. She noticed that Ayers had cut her hand, but that Bubba was fine. 2T. at

386. Ayers also kept bemoaning the fact that she was going to lose her children. 2T. at

389.

{¶6} The neighbor, Jennifer Conley, heard Ayers say that Bubba had started the

fire. Conley detected a strong odor of burnt marijuana on Ayers. 2T. at 359-360, 362,

367.

{¶7} Fire fighters from the Massillon Fire Department responded to the 9-1-1 call,

and put out the fire inside the home. Once the fire was extinguished (primarily in the

basement), the smoke inside the home was ventilated out, which then allowed the fire

inspector to investigate the nature and origin of the fire. The fire fighters-paramedics also

treated Ayers and her lacerated hand, as well as Bubba. The paramedics noted that

Bubba did not have any smoke smell or soot about him; Ayers, however, had soot on

her, which indicated that she had been in the basement, which was the obvious source of

fire. 1T. at 182-187, 189, 193, 213, 215.

{¶8} Inspector Reginald Winters of the Massillon Fire Department testified he

ruled out an electrical shortage as the cause of the fire. Winters determined a mattress

was the point of origination for the fire, and there were two distinct start points at separate

ends of the mattress. Winters opined that the cause of the fire was incendiary, i.e., an

open flame 1T. at 231. Thus, someone used an open flame to light two fires at different

ends of the mattress. Winters did not find any evidence that the fire had been started

by a cigarette, i.e., he did not find any remnant of a cigarette. 1T. at 239-240. There

also did not appear to be any accelerants used in the fire. 1T. at 248; 2T. at 293-294.
Stark County, Case No. 2021CA00134 5

{¶9} Because mattresses now have fire retardants on them, Inspector Winters

testified that the initial flame would have been small, and that a glass of water would

have extinguished the flame. The fire retardants cause any flame to burn slowly, not

fast, and that a cigarette will take hours to light a mattress on fire. Fanning the fire would

have given it oxygen, causing the flame to get bigger. Winters opined that the mattress

at the Ayers residence burned between ten and twelve minutes before the fire

department arrived. 2T. at 266-268.

{¶10} Winters testified that Bubba, if he had started the two fires, would have had

to light the fire at one end of the mattress, and then crawl to the other end while the

mattress was on fire to the other end and light that spot as well. 2T. at 303-305.

{¶11} In his official report, Inspector Winters reached the following conclusions

about the fire:

After examination of the fire scene it was determined the fire

originated in the basement on the bed. After examination of the fire scene,

interviewing witnesses, interviewing the insured and using the levels of

scientific certainty as discussed in the 2011 edition of NFPA 921; A Guide

for Fire and Explosion Investigation, it is my opinion the ignition source for

the fire was some type of open flame. The materials first ignited were

blankets on the bed. The act or omission that brought the ignition source

and the materials first ignited together was the deliberate act of a person or

persons. Using these elements of a fire cause, the cause of the fire is

incendiary.

2T. at 300-301.
Stark County, Case No. 2021CA00134 6

{¶12} Winters’ report concluded the fire was not an accident. 1T. at 250.

Investigator Winters prepared a draft report. In that report, which he referred to as a

template, he concluded the fire originated on the first floor of the residence. Winters

maintains this was a typographical error, and should have read the fire originated in the

basement of the residence. Additionally, the report contained several other errors not to

be included in the final copy. Winters stated in his testimony at trial, the report that had

included the alleged errors was not the final report. State v. Ayers, 5th Dist. Stark No.

2013 CA 00034, 2013-Ohio-5402, ¶9.

{¶13} Ayers’s defense centered upon the allegation her young son started the fire.

Id. at 3. The defense did not present any expert testimony during the jury trial. After the

fire, Ayers’s son did not appear to have any smoke exposure or soot on his person.

Ayers’s appeared to have smoke exposure and tested positive for soot residue on her

person. Id. at ¶3.

{¶14} Winters interviewed Ayers at the hospital where she had been taken due to

the cut on her hand. 2T. at 260. At the hospital, Ayers told Winters that she was in the

basement folding clothes when she noticed Bubba was over by the mattress playing with

a lighter. Id. at 261; Petition for Post-Conviction Relief, filed May 18, 2020 at Exhibit F.

Ayers did not respond when asked by Winters if she had attempted to take the lighter

away from the child. 2T. at 262. She was alerted to the fire when she saw a very small

red glow. Id. She grabbed a blanket and began to attempt to smother the fire by beating

it with the blanket. Id. When that only fanned the flames, Ayers said she attempted to

get water from the washing machine to douse the fire. Id. Ayers pours a glass of water

on the flames; however, it failed to extinguish the fire. 2T. at 262-263. She fell and cut
Stark County, Case No. 2021CA00134 7

her hand while retrieving a second glass of water. Id. Ayers indicated that the child

remained in the basement the entire time that she was trying to put out the fire. 2T. at

263.

{¶15} Once he had completed his investigation of the fire scene, Inspector

Winters went to the Massillon Police Department to interview Ayers. This interview

included Patrolman Curtis Rucker of the Massillon Police Department. 1T. at 198-

200. The redacted portion of this interview was admitted into evidence during Ayers’s

jury trial as State’s Exhibit 1. 2T. at 396-397.2 In the interview, Ayers told the officers that

she had been in the basement folding clothes. Ayers noticed Bubba standing next to the

mattress. She did not notice anything in his hands. State’s Exhibit 1. She shortly

afterwards noticed a fire on the bed, so Ayers grabbed a blanket and starting fanning the

flame. Unsuccessful in putting out the fire, Ayers claimed that she ran to the washing

machine, grabbed a glass of water, and threw it on the flame. Unsuccessful yet again,

she ran and got another glass of water, but tripped on her way back to the bed, dropping

the glass and breaking it, and then falling on it and cutting her hand. The child remained

in the basement with Ayers during the entire ordeal.

{¶16} Winters asked Ayers how she could see her son by the bed while she was

folding clothes at the dryer since there was a chimney, a hot water tank, and a furnace

blocking the view from that location. Ayers did not know. When asked why she told

another officer that she might have fallen asleep, Ayers seem confused. State’s Exhibit

1. Ayers denied ever threatening to burn the house down. She denied ever telling anyone

that she had threatened to burn the house down. State’s Exhibit 1. Ayers denied having

2 This Court has reviewed State’s Exhibit 1.
Stark County, Case No. 2021CA00134 8

problems with her father. She stated her father only asked her to move out when he was

drunk. When Ayers was shown the written statement that her father had given to the

police stating that she had threatened to burn the house down, Ayers told the officers that

her father was a liar and a terrible alcoholic, who has mistreated her since childhood.

State’s Exhibit 1; Petition for Post-Conviction Relief, filed May 18, 2020 at Exhibit H.

{¶17} By the end of the interview, Ayers told the officers that she must have gone

to sit on the bed to smoke a cigarette while she was waiting to change loads of laundry,

and that she must have fallen asleep. State’s Exhibit 1. Ayers denied that she had been

drinking or using drugs, and told the investigators that she was only on Adderall for her

ADHD. When offered, Ayers declined a drug test. State’s Exhibit 1.

{¶18} Winters spoke with Bubba, and noticed that the boy did not smell of smoke

or soot, did not have any burn marks, and had no soot in his nostrils. Winters did

ascertain that the boy was able to light a lighter. Winters then returned to the fire scene

and found a broken glass in the basement. He also found a blood splatter on the hot

water tank and washing machine, and a blood trail that went up the basement steps, then

back down, and that there was blood on the wall by the steps. He also found blood in the

kitchen and on the kitchen table. 2T. at 270-273.

{¶19} Ayers was indigent. The record contains no evidence that the defense

requested the trial court provide funds to consult with an expert witness. Ayers did not

testify at trial or offer any evidence in her defense.

{¶20} On November 6, 2012, Ayers was indicted on one count of Aggravated

Arson, in violation of R.C. 2909.02(A)(2), a felony of the second degree, and one count

of Endangering Children, in violation of R.C. 2919.22(A), a first-degree misdemeanor.
Stark County, Case No. 2021CA00134 9

{¶21} The matter proceeded to a jury trial, and on January 30, 2013, Ayers was

found guilty by a jury of both offenses. Ayers was sentenced to serve a prison term of

seven years on the charge of Aggravated Arson and a concurrent sentence of one

hundred eighty days on the charge of Endangering Children. This Court upheld Ayers’s

conviction and sentences. State v. Ayers, 5th Dist. Stark No. 2013 CA 00034, 2013-Ohio-

5402. Ayers has served her prison term in this case.

{¶22} In June of 2013, Ayers filed a motion for appointment of counsel to

represent her in a petition for post-conviction relief pursuant to R.C. 2953.21 claiming she

wanted to obtain "additional evidence that was not presented on my behalf at the time of

my trial.” The court denied the request to appoint counsel. Ayers did not file a petition

for post-conviction relief at that time.

{¶23} On May 7, 2014, Ayers pro se filed a Motion to Stay Execution and

Collection of Court Costs. The trial court overruled the motion by Judgment Entry filed

May 8, 2014. [Docket No. 93].

{¶24} On May 13, 2014, Ayers filed a pro se Motion to Stay Execution and

Collection of Court Costs and an Affidavit of Indigency. [Docket No. 95]. The trial court

overruled the motion by Judgment Entry filed May 14, 2014. [Docket No. 96].

{¶25} On May 28, 2015, Ayers filed pro se, “Defendant’s Motion for Credit of

Community Service Hours Earned Toward Payment of Fines, Court Costs, and/or

Restitution,” together with an attachment showing Ayers’s 179 hours of community

service earned in prison. [Docket No. 97]. The trial court overruled the motion by

Judgment Entry filed May 29, 2015. [Docket No. 98].
Stark County, Case No. 2021CA00134 10

{¶26} On October 19, 2015, Ayers filed pro se a “Motion for Modification of

Sentence,” together with a Memorandum in support. [Docket No. 99]. The trial court

overruled the motion by Judgment Entry filed October 20, 2015. [Docket No. 100].

{¶27} On October 27, 2015, Ayers filed pro se a Motion to Reduce or Sentence,

together with numerous attachments. [Docket No. 101]. The trial court overruled the

motion by Judgment Entry filed October 27, 2015. [Docket No. 102].

{¶28} On November 9, 2015, Ayers sent a letter to the trial judge requesting a

payment plan be established for her court costs. [Docket No. 103]. The trial court

overruled the request by Judgment Entry filed November 18, 2015. [Docket No. 104].

{¶29} On March 4, 2016, Ayers wrote a letter to the judge asking to suspend the

collection of her court costs until her release from prison. [Docket No. 105]. The trial

court overruled the motion by Judgment Entry filed March 7, 2016. [Docket No. 106].

{¶30} On December 27, 2016, Ayers’s aunt sent a letter to the judge to reduce or

waive Ayers’s court costs. [Docket No. 107].

{¶31} On January 6, 2017, Ayers sent a letter to the trial judge to reduce or waive

Ayers’s court costs. [Docket No. 108]. The trial court overruled the motion by Judgment

Entry filed January 6, 2017. [Docket No. 109].

{¶32} On February 15, 2017, Ayers sent a letter to the trial judge to reduce or

waive Ayers’s court costs or establish a payment plan. [Docket No. 110]. The trial court

overruled the motion by Judgment Entry filed February 15, 2017. [Docket No. 111].

{¶33} On February 12, 2018, Ayers filed pro se a Motion for Judicial Release,

together with attachments and a request for a hearing. [Docket No. 112]. The trial court

overruled the motion by Judgment Entry filed February 12, 2018. [Docket No. 113].
Stark County, Case No. 2021CA00134 11

{¶34} On April 13, 2020, Ayers, through counsel, filed a Petition for Post-

Conviction Relief Pursuant to R.C. 2953.21-23. [“PCR”] Ayers also filed a Motion for

Leave to File for New Trial Pursuant to Crim.R 33(B) on April 13, 2020. Ayers filed her

First Amended Petition for Post-Conviction Relief Pursuant to R.C. 2953.21-23 on May

18, 2020.

{¶35} Submitted in support of each motion, Ayers attached an affidavit from John

Lentini. Mr. Lentini is one of the foremost forensic arson experts in the United States.

In 2019, Mr. Lentini reviewed the 2013 testimony and summary conclusions of Inspector

Winters and produced a report. According to Lentini's analysis, "the expert testimony

presented to the jury by Mr. Winters was unreliable, unscientific, and at odds with

generally accepted fire investigation methodology.” Affidavit of John Lentini, ("Lentini

Affidavit") attached as Exhibit O to Petition for Post-conviction Relief, ¶32.

Specifically, Lentini concludes "unequivocally and to a reasonable degree of

professional certainty'' that,

1). "The proposition that this fire had two points of origin is

unsupportable by any generally accepted methodology,"

2). "Mr. Winters used circular logic to conclude that the fire could

not have been set by Ms. Ayers's son Brennan,"

3). "Despite claiming to follow NFPA 921, Mr. Winters disregarded

its guidance in several important ways," and

4). "Mr. Winters demonstrated by his testimony that he is not

qualified to investigate fires per NFPA 1033, the generally accepted

industry standard."
Stark County, Case No. 2021CA00134 12

Lentini Affidavit at ¶ 9.

{¶36} By Judgment Entry filed November 2, 2021, the trial court denied both of

Ayers’s motions. The trial court dismissed the PCR petition on jurisdictional grounds,

finding the petition was not timely filed and did not fall within any exceptions of R.C.

2953.23(A). Further, the trial court found the claims in the PCR petition were barred by

res judicata. Regarding Ayers’s motion for leave to file a motion for new trial, the trial

court found that she failed to make the requisite showing that she was unavoidably

prevented from discovering the evidence she sought to present in a motion for new trial.

Assignments of Error

{¶37} Ayers raises two Assignments of Error,

{¶38} “I. THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION

FOR LEAVE TO FILE A MOTION FOR NEW TRIAL.

{¶39} “II. THE TRIAL COURT ERRED BY DENYING APPELLANT'S FIRST

AMENDED PETITION FOR POSTCONVICTION RELIEF.”

II.

{¶40} For ease of discussion, we will address Ayers’s Assignments of Error

out of sequence.

{¶41} In her Second Assignment of Error, Ayers argues that the trial court

erred in overruled her untimely petition for post-conviction relief without a hearing.

Petition for Post-Conviction Relief

{¶42} R.C. 2953.21(A) states, in part, as follows: "(1) Any person who has been

convicted of a criminal offense or adjudicated a delinquent child and who claims that there
Stark County, Case No. 2021CA00134 13

was such a denial or infringement of the person's rights as to render the judgment void or

voidable under the Ohio Constitution or the Constitution of the United States may file a

petition in the court that imposed sentence, stating the grounds for relief relied upon, and

asking the court to vacate or set aside the judgment or sentence or to grant other

appropriate relief".

{¶43} A post-conviction proceeding is a collateral civil attack on a criminal

conviction. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905(1999); State v.

Phillips, 9th Dist. No. 20692, 2002-Ohio-823. In order to obtain post-conviction relief, a

petitioner must show that "there was such a denial or infringement of the person's rights

as to render the judgment void or voidable under the Ohio Constitution or the Constitution

of the United States [.]” R.C. 2953.21; State v. Watson, 126 Ohio App.3d 316, 323, 710

N.E.2d 340 (12th Dist. 1998).

Right to evidentiary hearing is not automatic

{¶44} Under R.C. 2953.21, a petitioner seeking post-conviction relief is not

automatically entitled to an evidentiary hearing. Calhoun, 86 Ohio St.3d at 282, 714

N.E.2d 905. Significantly, the Ohio Supreme Court has held that the proper basis for

dismissing a petition for post-conviction relief without holding an evidentiary hearing

include: 1) the failure of the petitioner to set forth sufficient operative facts to establish

substantive grounds for relief, and 2) the operation of res judicata to bar the constitutional

claims raised in the petition. Calhoun, 86 Ohio St.3d at paragraph two of the syllabus;

State v. Lentz, 70 Ohio St.3d 527, 530, 639 N.E.2d 784(1994).

{¶45} In order for an indigent petitioner to be entitled to an evidentiary hearing in

a post-conviction relief proceeding on a claim that he was denied effective assistance of
Stark County, Case No. 2021CA00134 14

counsel, the two-part analysis set forth in Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674(1984) is to be applied. Hill v. Lockhart, 474 U.S. 52, 58, 106

S.Ct. 366, 88 L.Ed.2d 203(1985); State v. Lytte, 48 Ohio St.2d 391, 358 N.E.2d

623(1976); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989); State v. Cole,

supra, 2 Ohio St.3d at 114, 443 N.E.2d 169. The petitioner must therefore prove that: 1).

counsel's performance fell below an objective standard of reasonable representation; and

2). there exists a reasonable probability that, were it not for counsel's errors, the result of

the trial would have been different. Id.

{¶46} R.C. 2953.21 does not expressly mandate a hearing for every post-

conviction relief petition; therefore, a hearing is not automatically required. In determining

whether a hearing is required, the Ohio Supreme Court in State v. Jackson, 64 Ohio St.2d

107, 413 N.E.2d 819(1980), stated the pivotal concern is whether there are substantive

grounds for relief which would warrant a hearing based upon the petition, the supporting

affidavits, and the files and records of the case. As the Supreme Court further explained

in Jackson, "[b]road assertions without a further demonstration of prejudice do not warrant

a hearing for all post-conviction relief petitions.” Id. at 111, 413 N.E.2d 819. Rather, a

petitioner must submit evidentiary documents containing sufficient operative facts to

support his claim before an evidentiary hearing will be granted. Accordingly, "a trial court

properly denies a defendant's petition for post-conviction relief without holding an

evidentiary hearing where the petition, the supporting affidavits, the documentary

evidence, the files, and the records do not demonstrate that petitioner set forth sufficient

operative facts to establish substantive grounds for relief.” Calhoun, 86 Ohio St.3d at

paragraph two of the syllabus; see R.C. 2953.21(C).
Stark County, Case No. 2021CA00134 15

{¶47} Furthermore, before a hearing is granted in proceedings for post-conviction

relief upon a claim of ineffective assistance of trial counsel, the petitioner bears the initial

burden to submit evidentiary material containing sufficient operative facts that

demonstrate a substantial violation of any of defense counsel's essential duties to his

client and prejudice arising from counsel's ineffectiveness. Calhoun, 86 Ohio St.3d at

289, 714 N.E.2d 905; State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819(1980),

syllabus; see, also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674, 693(1984).

{¶48} "In determining how to assess the credibility of supporting affidavits in post-

conviction relief proceedings, the Supreme Court adopted the reasoning of the First

Appellate District in State v. Moore, 99 Ohio App.3d 748, 651 N.E.2d 1319(1st Dist. 1994),

which had looked to federal habeas corpus decisions for guidance. Id. at 753-754, 651

N.E.2d at 1322-1323. The Supreme Court ultimately determined that the trial court should

consider all relevant factors in assessing the credibility of affidavit testimony in 'so-called

paper hearings,' including the following: '(1) whether the judge viewing the post-

conviction relief petition also presided at the trial, (2) whether multiple affidavits contain

nearly identical language, or otherwise appear to have been drafted by the same person,

(3) whether the affidavits contain or rely on hearsay, (4) whether the affiants are relatives

of the petitioner, or otherwise interested in the success of the petitioner's efforts, and (5)

whether the affidavits contradict evidence proffered by the defense at trial. Moreover, a

trial court may find sworn testimony in an affidavit to be contradicted by evidence in the

record by the same witness, or to be internally inconsistent, thereby weakening the

credibility of that testimony.’ Calhoun, 86 Ohio St.3d at 285, 714 N.E.2d at 911-912, citing
Stark County, Case No. 2021CA00134 16

Moore, 99 Ohio App.3d at 754-756, 651 N.E.2d at 1323-1324.” State v. Kinley, 136 Ohio

App.3d 1, 13-14, 735 N.E.2d 921, 930-31(2nd Dist. 1999). A trial court that discounts the

credibility of sworn affidavits must include an explanation of its basis for doing so in its

findings of fact and conclusions of law in order that meaningful appellate review may

occur. Id. at 285, 735 N.E.2d 921, 714 N.E.2d at 911-912.

Res Judicata

{¶49} Another proper basis upon which to deny a petition for post-conviction relief

without holding an evidentiary hearing is res judicata. State v. Lentz, 70 Ohio St.3d 527,

530, 1994-Ohio-532, 639 N.E.2d 784; State v. Perry, 10 Ohio St.2d 175, 39 O.O.2d 189,

226 N.E.2d 104(1967); State v. Phillips, 9th Dist. No. 20692, 2002-Ohio-823. Under the

doctrine of res judicata, a final judgment of conviction bars a convicted defendant who

was represented by counsel from raising and litigating in any proceeding, except an

appeal from that judgment, any defense or any claimed lack of due process that was

raised or could have been raised by the defendant at the trial, which resulted in that

judgment of conviction, or on an appeal from that judgment. State v. Szefcyk, 77 Ohio

St.3d 93, 671 N.E.2d 233(1996), syllabus, approving and following State v. Perry, 10 Ohio

St.2d 175, 226 N.E.2d 104(1967), paragraph nine of the syllabus. It is well settled that,

"pursuant to res judicata, a defendant cannot raise an issue in a [petition] for post-

conviction relief if he or she could have raised the issue on direct appeal.” State v.

Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131(1997).

{¶50} Similarly, regarding claims of ineffective assistance of trial counsel in post-

conviction proceedings, the Ohio Supreme Court has stated that where a defendant,

represented by different counsel on direct appeal, "fails to raise [in the direct appeal] the
Stark County, Case No. 2021CA00134 17

issue of competent trial counsel and said issue could fairly have been determined without

resort to evidence dehors the record, res judicata is a proper basis for dismissing

defendant's petition for post-conviction relief.” State v. Cole, 2 Ohio St.3d 112, 443

N.E.2d 169(1982), syllabus; see, also, Lentz, 70 Ohio St.3d at 530, 639 N.E.2d 784; State

v. Phillips, supra.

Time requirements for filing

{¶51} The pertinent jurisdictional time requirements for a post-conviction petition

at the time of Ayers’s direct appeal were set forth in R.C. 2953.21(A)(2) as follows,

A petition under division (A)(1) of this section shall be filed no later

than one hundred eighty days after the date on which the trial transcript is

filed in the court of appeals in the direct appeal of the judgment of conviction

or adjudication * * *.

{¶52} In order for a court to recognize an untimely post-conviction petition, both

of the following requirements must apply (R.C. 2953.23(A)(1)):

(a) Either the petitioner shows that the petitioner was unavoidably

prevented from discovery of the facts upon which the petitioner must rely to

present the claim for relief, or, subsequent to the period prescribed in

division (A)(2) of section 2953.21 of the Revised Code or to the filing of an

earlier petition, the United States Supreme Court recognized a new federal

or state right that applies retroactively to persons in the petitioner's situation,

and the petition asserts a claim based on that right.

(b) The petitioner shows by clear and convincing evidence that, but

for constitutional error at trial, no reasonable factfinder would have found
Stark County, Case No. 2021CA00134 18

the petitioner guilty of the offense of which the petitioner was convicted or,

if the claim challenges a sentence of death that, but for constitutional error

at the sentencing hearing, no reasonable factfinder would have found the

petitioner eligible for the death sentence. (Emphasis added).

{¶53} In the case at bar, Ayers agrees that her petition was filed outside the 180-

day time limit in effect at the time of her conviction.

Standard of Review – Untimely petition for Post-Conviction Relief

{¶54} A post-conviction proceeding is a collateral civil attack on the judgment,

State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999), and the “right to file a

post-conviction petition is a statutory right, not a constitutional right,” State v. Broom, 146

Ohio St.3d 60, 2016-Ohio-1028, 51 N.E.3d 620, ¶ 28. A post-conviction petitioner

therefore “receives no more rights than those granted by the statute.” Calhoun at 281,

714 N.E.2d 905. This means that any right to post-conviction relief must arise from the

statutory scheme enacted by the General Assembly.

{¶55} That includes the right to have one’s claim heard at all: R.C. 2953.23(A)

provides that “a court may not entertain a petition filed after the expiration of the period

prescribed in [ R.C. 2953.21(A)] or a second petition or successive petitions for similar

relief on behalf of a petitioner unless” one of the exceptions in R.C. 2953.23(A) applies.

(Emphasis added.) State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121

N.E.3d 351, ¶ 36. Therefore, a petitioner’s failure to satisfy R.C. 2953.23(A) deprives a

trial court of jurisdiction to adjudicate the merits of an untimely or successive post-

conviction petition. Apanovitch at ¶ 36.
Stark County, Case No. 2021CA00134 19

{¶56} Accordingly, given the substance of Ayers’s allegations, for the trial court to

have subject-matter jurisdiction to consider the petition, Ayers had to show (1) that she

was “unavoidably prevented from discovery of the facts” upon which her claim relies and

(2) by clear and convincing evidence, that no reasonable fact-finder would have found

her guilty or eligible for the death sentence but for the constitutional error at trial. R.C.

2953.23(A)(1). See State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121

N.E.3d 351, ¶ 36. State v. Bethel, __Ohio St.3d ___, 2022-Ohio-783, __N.E.3d__, ¶20.

{¶57} We review de novo whether the trial court had subject-matter jurisdiction to

entertain Ayers’s petition. Apanovitch at ¶ 24; Bethel at .¶20.

{¶58} We must first decide does the post-conviction petition satisfy an exception

provided in R.C. 2953.23(A). State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744,

121 N.E.3d 351, ¶ 23.

“[U]navoidably prevented from discovery of the facts”

{¶59} For the trial court to have jurisdiction to entertain the ineffective assistance

of trial counsel claim alleged in the post-conviction petition, Ayers first had to establish

that she was “unavoidably prevented from discovery of the facts” on which she relies.

R.C. 2953.23(A)(1)(a). To meet this standard, courts in Ohio have previously held that a

defendant ordinarily must show that he was unaware of the evidence he is relying on and

that he could not have discovered the evidence by exercising reasonable diligence.

Bethel, at ¶21 citing State v. Harrison, 8th Dist. Cuyahoga No. 105909, 2018-Ohio-1396,

2018 WL 1778661, ¶ 6.

{¶60} We find it unnecessary to reach this issue because even if we assume

arguendo that Ayers was “unavoidably prevented from discovery of the facts” on which
Stark County, Case No. 2021CA00134 20

she relies, Ayers must also show by clear and convincing evidence that no reasonable

fact-finder would have found her guilty but for constitutional error at trial. Apanovitch, 155

Ohio St.3d at ¶26.

No reasonable fact-finder would have found Ayers guilty but for the constitutional

error at trial

{¶61} Ayers’s post-conviction petition faces an additional jurisdictional hurdle:

under R.C. 2953.23(A)(1)(b). Therefore, we must first decide whether a constitutional

error occurred during Ayers’s jury trial. If a constitutional error occurred, we must then

find by clear and convincing evidence that no reasonable fact-finder would have found

her guilty but for constitutional error at trial. This question goes to the heart of the second

prong of the Strickland- Brady test for claims of ineffective assistance of counsel, which

requires Ayers to show that is there is a reasonable probability that but for counsel's

unprofessional errors, the result of her trial would have been different. Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42

Ohio St.3d 136, 538 N.E.2d 373(1989). In Harrington v. Richter, the United States

Supreme Court discussed the prejudice prong of the Strickland test,

A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” [Strickland], at 694, 104 S.Ct. 2052. It is not

enough “to show that the errors had some conceivable effect on the

outcome of the proceeding.” Id., at 693, 104 S.Ct. 2052. Counsel’s errors

must be “so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Id., at 687, 104 S.Ct. 2052.

562 U.S. 86, 104,131 S.Ct. 770, 178 L.Ed.2d 624(2011).
Stark County, Case No. 2021CA00134 21

Substantive Claims

First Ground for Relief

{¶62} In the First Count of her petition for post-conviction relief Ayers contends

that she was denied effective assistance of counsel. Specifically, Ayers contends 1).

Defense counsel failed to consult with an expert witness regarding the origin of the fire;

2). Defense counsel failed to challenge false and unsupported testimony offered by the

state’s expert; and 3). Defense counsel failed to object to testimony that should have been

barred under Ohio Crim.R.16(K).

1). Failure to consult with an expert.

{¶63} In support of her contention that she was denied effective assistance of

counsel because her trial attorney did not consult with an expert witness, Ayers submitted

the affidavit of John J. Lentini, a renowned forensic arson expert. Lentini concludes

"unequivocally and to a reasonable degree of professional certainty'' that:

1). "The proposition that this fire had two points of origin is

unsupportable by any generally accepted methodology,"

2). "Mr. Winters used circular logic to conclude that the fire could

not have been set by Ms. Ayers's son Brennan,"

3). "Despite claiming to follow NFPA 921, Mr. Winters disregarded

its guidance in several important ways," and

4). "Mr. Winters demonstrated by his testimony that he is not

qualified to investigate fires per NFPA 1033, the generally accepted

industry standard."
Stark County, Case No. 2021CA00134 22

Lentini Affidavit at ¶ 9. Mr. Lentini is highly critical of the state’s expert Fire Inspector

Reginal Winters.

{¶64} At trial Fire Inspector Winters testified concerning his knowledge and

experience as follows,

Q. How long have you been a Fire Inspector/Fire Investigator?

A. I've been - - five years with the City of Massillon, been on the

fire department for ten.

Q. And prior to your employment at the City of Massillon, were

you employed elsewhere as a firefighter?

A. Yes, sir, fifteen years with the City of Orrville.

Q. Now, if you would, could you tell these ladies and gentlemen

what a fire inspector’s duties are?

A. Fire inspector’s duties are we do public safety. We also go

through commercial buildings ensuring safety, making sure the fire

extinguishers, exit lights are lit, and we also give approval for new buildings

and stuff like that. We work with the building department. We also are

in charge of fireworks, certifying them and stuff like that, to inspect the site

to make sure it’s safe for the community.

Q. How about the other part of your job description that you

previously entail detailed that you had, would you explain that to these

folks?
Stark County, Case No. 2021CA00134 23

A. As a Fire Investigator, my job is to come in and determine

origin and cause. The cause being what happened, the origin is where the

fire started at.

Q. Did you have to undergo specialized training in order to hold

a position as that of which you just described?

A. Yes, sir.

A. What type of training, first of all, did you have to undergo?

A. First of all, I had to get my certified Fire Inspector. You have

to be a certified Fire Inspector. And then from there you have to - - it’s two

stages. You have a basic Fire Investigator and then you have an advanced

Fire Inspector course you have to take.

Q. Let’s talk about the certified Fire Inspector training first. What

does that entail?

A. That entails looking at multiple burn scenes, learning the

scientific methodology of how different things burn as far as oils, gas,

electrical fires, the synthetic fires as far as people using open flames to fires,

candles, paper. And we look at the different patterns the fire makes, the

different charring of wood and stuff like that to make our determination

whether - - what caused the fire, whether it was mechanical, accidental, or

incendiary.

Q. Do you have to go to classes for that?

A. Yes, sir.

Q. And how long were those classes?
Stark County, Case No. 2021CA00134 24

A. My first class as a basic investigator, it was 32 hours. The

second part of advanced was - - it was 40 hours.

Q. Did you successfully complete all those classes?

A. Yes, sir.

Q. And then at the end of those classes, do you have to take a

test?

A. Yes, sir.

Q. And did you successfully pass all those tests?

A. Yes, sir.

Q. So, you are now a certified arson Investigator?

A. Yes.

Q. And that's within the State of Ohio?

A. Yes, sir.

Q. Once you complete that training, do you have to continue to

update your education?

A. Yes, sir.

Q. What do you have to do?

A. We have to - - well, we take like different seminars. One

seminar I attend is the International Firefighters Association of Arson

Investigators in Columbus. It’s an annual Fire Investigator course

weeklong. We have to maintain 32 hours in a three-year period of

continuing education.
Stark County, Case No. 2021CA00134 25

Q. And as you sit here today, are you current in all your

requirements to be a certified arson investigator?

A. Yes, sir.

Q. You indicated that you've held that position with the Massillon

Police [sic] Department for five years. Could you estimate the number of

fires you've investigated within those five years?

A. I would say approximately 30.

Q. And have you testified before in the courts of Stark County as

an expert in the cause and origin of fires?

A. Yes, sir.

Q. And has that testimony been accepted by the courts?

A. Yes, sir.

1T. at 225-229.

{¶65} In State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017,

the Supreme Court observed,

Neither special education nor certification is necessary to confer

expert status upon a witness. “The individual offered as an expert need not

have complete knowledge of the field in question, as long as the knowledge

he or she possesses will aid the trier of fact in performing its fact-finding

function.” State v. Hartman, 93 Ohio St.3d at 285, 754 N.E.2d 1150; State

v. Baston, 85 Ohio St.3d 418, 423, 709 N.E.2d 128. Pursuant to Evid.R.

104(A), the trial court determines whether a witness qualifies as an expert,

and that determination will be overturned only for an abuse of discretion.
Stark County, Case No. 2021CA00134 26

State v. Hartman, 93 Ohio St.3d at 285, 754 N.E.2d 1150; State v.

Williams (1983), 4 Ohio St.3d 53, 58, 4 OBR 144, 446 N.E.2d 444.

Id. at ¶46 (emphasis added). Ayers does not argue in her petition for post-conviction

relief that the trial court abused its discretion by qualifying Fire Inspector Winters as an

expert witness.

{¶66} In the case at bar, the undisputed facts at trial were that a fire occurred on

a mattress located in the basement that caused damage to the residence. The disputed

facts at trial were whether Ayers stared the fire intentionally or accidentally, or, whether

the 3-year-old child started the fire.

{¶67} Mr. Lentini’s affidavit does not exonerate Ayers or reduce her culpability.

In other words, Mr. Lentini does not opine that 1). the fire was of accidental origin; 2).

a person could not have intentionally started the fire; or 3). having only one ignition

point rules out that the fire was started intentionally. To answer those questions the

jury must necessarily look to the other evidence present by the state during Ayers’s

jury trial.

{¶68} Ayers’s father testified he had previously discussed finances with her, and

the fact she had not been contributing to the household financial situation. Mr. Ayers told

Ayers that he was planning to move to West Virginia. Jeff Ayers testified that Ayers

became more aggressive toward him and began to make threats to the point that he

feared for the safety of his family. 1T. at 309-310. Jeff Ayers testified that Ayers

threatened to burn the house down. Id. He became so concerned that he called his

sister, aunt and the landlord and told them that Ayers was threatening to burn the house
Stark County, Case No. 2021CA00134 27

down. 1T. at 310. The fire occurred on the day that he left the home for West Virginia.

1T. at 312.

{¶69} Additionally, a neighbor of Ayers, Jason Pandrea, testified he heard Ayers

threaten her father with burning the house down if he ever left. 1T. at 339. Pandrea

testified that Ayers “meant it.” 1T. at 341.

{¶70} The jury viewed the video of Ayers’s statement to Fire Inspector Winters

and Patrolman Curtis Rucker from the Massillon Police Department. 1T. at 195; 201.

State’s Exhibit 1. The jury was shown pictures of the scene after the fire had occurred.

{¶71} Inspector Reginald Winters was the state's expert. 1T. at 225. Winters did

not find evidence of a cigarette as the cause of the fire. 1T. at 240. Winters identified the

State's Photograph Exhibits that he took of the scene of the fire. 1T. at 243; 2T. at 273,

275. Winters was able to exclude cigarettes, natural gas, accelerants, and an electrical

cause for the fire. 1T. at 248- 249. Winters testified the cause of the fire was incendiary

(open flame) and a person or persons started the fire. 1T. at 250.

{¶72} The jury heard Ayers’s statement to Massillon Paramedic Richard Annen

that she was running upstairs to get her son when the fire started in the basement. 1T.

at 186. Ayers initially told Annen that the child started the fire; however, she later claimed

that she might have fallen asleep. 1T. at 206-207. Annen looked in the child’s mouth

and on his face and found no evidence of soot, which would indicate that the child had

been near the fire. Id. at 185. He found evidence of soot on Ayers. 1T. at 186-187.

{¶73} At the hospital, Ayers claimed to be in the basement folding clothes when

she noticed her son playing with a lighter on the mattress. 2T. at 261. When asked how

she could see a small fire on the bed with the chimney, hot water tank and furnace
Stark County, Case No. 2021CA00134 28

blocking her view from her position near the clothes dryer she was unable to answer. 2T.

at 263.

{¶74} The jury also had audio recordings of calls made by Ayers while she was in

jail. Exhibit 2. This Court notes that State’s Exhibit 2 is a disk containing 34 phone calls

that Ayers made from the jail while she was awaiting trial. However, only “snippets” from

two calls were played for the jury and admitted into evidence. 2T. at 397-398. The state

never identified the specific portion of the calls that were played for the jury and admitted

into evidence.

{¶75} It is not unusual in a case in which highly technical, medical or other

specialized evidence is presented for the experts presented by each party to criticize the

other’s training, methodology, and/or conclusions. When a so-called “battle of experts”

takes place during a jury trial such criticisms go to the weight not the admissibility of each

expert’s opinion. An expert witness is not required to be the best witness on the subject.

Alexander v. Mt. Carmel Med. Ctr., 56 Ohio St.2d 155, 159, 383 N.E.2d 564(1978).

(Citations omitted.)

{¶76} The majority of Lentini’s opinion centers on his belief that Winters is not

qualified, or did not use the techniques that Lentini believes are the best practice. When

viewed in this light, Lentini’s affidavit has only limited probative value. His opinion does

not exonerate Ayers or reduce her culpability. He opines only that Fire Inspector

Winters’s expert testimony was “unreliable, unscientific, and at odds with generally

accepted fire investigation methodology.” Lentini Affidavit at ¶32. Lentini’s opinion does

not affect the other testimony and evidence that was presented during Ayers’s jury trial.
Stark County, Case No. 2021CA00134 29

{¶77} In light of the evidence produced that did not depend upon expert testimony

and the entire record in this case, we hold that Ayers has not shown a reasonable

probability that but for counsel's unprofessional errors, the result of her trial would have

been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989). The testimony

of Lentini could not reasonably be taken to put the whole case in such a different light as

to undermine confidence in the verdict. Ayers was not denied her right to due process

and fair trial by counsel’s failure to consult an expert witness.

2). Defense counsel failed to challenge false and unsupported testimony offered

by the state’s expert & 3). Defense counsel failed to object to testimony that should have

been barred under Ohio Crim.R.16(K).

{¶78} Ayers next argues that she received ineffective assistance of trial counsel

because defense counsel did not object or otherwise challenge Fire Inspector Winters’s

testimony.

{¶79} In her direct appeal, Ayers raised the following Assignment of Error,

“II. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL DUE TO TRIAL COUNSEL’S FAILURE TO REVIEW THE

APPROPRIATE DISCOVERY MATERIALS IN PREPARATION FOR

TRIAL.”

State v. Ayers, 5th Dist. Stark No. 2013 CA 00034, 2013-Ohio-5402, ¶15.

{¶80} We further note that counsel’s failure to object to Fire Inspector Winters’s

testimony is evident from the record. The entire Executive Summary prepared by Winters

was read into the record during the jury trial. 2T. at 297. Defense counsel acknowledged
Stark County, Case No. 2021CA00134 30

receiving the report. Id. at 299. The report does not indicate the fire had two points of

origin. 2T. at 297. Ayers was indigent. The record contains no evidence that the defense

requested the trial court provide funds to consult with an expert witness.

{¶81} In the case at bar, Ayers was represented in her direct appeal by new

counsel. Counsel in that appeal could have cited to the testimony and records contained

in the court file to support a claim of ineffective assistance of trial counsel in failing to

object or challenge Fire Inspector Winters’s testimony. To overcome the res judicata bar,

the evidence must show that the petitioner could not have appealed the constitutional

claim based on the information in the original trial record. State v. Cole, 2 Ohio St.3d 112,

443 N.E.2d 169 (1982), syllabus. Ayers has failed in this burden.

{¶82} As Ayers could have raised and fully litigated this issue on direct appeal,

this court concludes that the trial court did not err in finding that trial counsel’s failure to

object or challenge Fire Inspector Winters’s testimony is barred by res judicata.

Second Ground for Relief

{¶83} In her Second Ground for Relief, Ayers claims the prosecutor committed

misconduct by failing to disclose Fire Inspector Winters’s conclusion that the fire had two

point of origin in violation of Crim.R. 16(K).

{¶84} The entire Executive Summary prepared by Winters was read into the

record during the jury trial. 2T. at 297. Defense counsel acknowledged receiving the

report. Id. at 299. The report does not indicate the fire had two points of origin. 2T. at

297.

{¶85} In the case at bar, Ayers was represented in her direct appeal by new

counsel. Counsel in that appeal could have cited to the testimony and records contained
Stark County, Case No. 2021CA00134 31

in the court file to support a claim of ineffective assistance of trial counsel in failing to

object or challenge the state’s failure to disclose Fire Inspector Winters’s testimony

concerning the fire’s two points of origin. Ayers was indigent. The record contains no

evidence that the defense requested the trial court provide funds to consult with an expert

witness.

{¶86} To overcome the res judicata bar, the evidence must show that the

petitioner could not have appealed the constitutional claim based on the information in

the original trial record. State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982), syllabus.

Ayers has failed in this burden.

{¶87} As Ayers could have raised and fully litigated this discovery issue on direct

appeal, this Court concludes that the trial court did not err in finding that this issue was

barred by res judicata.

Third Ground for Relief

{¶88} In the Third Ground for Relief set forth in Ayers’s petition for post-conviction

relief, Ayers contends that her right to compulsory process was violated by the state’s

discovery violation, i.e. failing to disclose Fire Inspector Winters’s conclusion that the fire

had two point of origin in violation of Crim.R. 16(K).

{¶89} Defense counsel was in possession of Fire Inspector Winters’s Executive

Summary, and his draft report prior to trial. Thus, the defense was on notice that the state

would present expert testimony prior to trial. Nothing impeded the defense from obtaining

its own expert witness. The proffered testimony of Ayers’s attorneys submitted, as Exhibit

L to her petition, does not indicate that her trial attorneys would have retained an expert
Stark County, Case No. 2021CA00134 32

witness had they received Fire Inspector Winters’s conclusion that the fire had two points

of origin before trial.

{¶90} The entire Executive Summary prepared by Winters was read into the

record during the jury trial. 2T. at 297. Defense counsel acknowledged receiving the

report. Id. at 299. The report does not indicate the fire had two points of origin. 2T. at

297.

{¶91} In the case at bar, Ayers was represented in her direct appeal by new

counsel. Counsel in that appeal could have cited to the testimony and records contained

in the court file to support a claim of ineffective assistance of trial counsel in failing to

object or challenge Fire Inspector Winters’s testimony, or to retain and present its own

expert at trial. To overcome the res judicata bar, the evidence must show that the

petitioner could not have appealed the constitutional claim based on the information in

the original trial record. State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982), syllabus.

Ayers has failed in this burden. The issue of whether Ayers was denied compulsory

process by the state’s failure to disclose Fire Inspector Winters’s conclusion that the fire

had two points of origin before trial could have been raised in her direct appeal.

{¶92} As Ayers could have raised and fully litigated this issue on direct appeal,

this Court concludes that the trial court did not err in finding that this issue was barred by

res judicata.

Fourth Ground for Relief

{¶93} In the Fourth Ground for Relief Ayers asserts a claim of actual innocence.

{¶94} Ayers does not assert a claim of actual innocence based upon DNA

evidence as set forth in R.C. 2953.23(A)(2).
Stark County, Case No. 2021CA00134 33

{¶95} The United States Supreme Court has ruled that under the United States

Constitution, an actual-innocence claim “is not itself a constitutional claim,” Herrera v.

Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Accord, State v.

Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, ¶26. In State v. Willis,

the Court explained,

In Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203

(1993), the United States Supreme Court held that “a claim of ‘actual

innocence’ is not itself a constitutional claim.” Id. at 404, 113 S.Ct. 853. “[A]

claim of ‘actual innocence’ is not itself a constitutional claim, but instead a

gateway through which a habeas petitioner must pass to have his otherwise

barred constitutional claim considered on the merits.” Nevertheless, the

court was willing to “assume, for the sake of argument in deciding [the] case,

that a truly persuasive demonstration of ‘actual innocence’ made after trial

would render the execution of a defendant unconstitutional, and warrant

federal habeas relief if there were no state avenue open to process such a

claim.” Id.

Interpreting Herrera, supra, the First District Court of Appeals held

that a petitioner was not entitled to post-conviction relief unless he showed

a violation of rights that were constitutional in dimension, which occurred at

the time that the petitioner was tried and convicted. State v. Campbell, 1st

Dist. Hamilton No. C–950746, 1997 WL 5182 (Jan. 8, 1997). The court

stated:
Stark County, Case No. 2021CA00134 34

[N]ewly discovered evidence is, by definition, that

“which the defendant could not with reasonable diligence

have discovered and produced at trial.” Crim.R. 33(A)(6); * *

* A claim of actual innocence based on newly discovered

evidence will, therefore, not provide substantive grounds for

post-conviction relief, because “it does not, standing alone,

demonstrate a constitutional violation in the proceedings that

actually resulted in the conviction.” * * * Campbell’s claims of

actual innocence were thus not cognizable in a postconviction

proceeding. Citing State v. Powell, 90 Ohio App.3d 260, 264,

629 N.E.2d 13 (1993).

Other Ohio courts have similarly held that a claim of actual innocence

does not constitute a substantive ground for post-conviction relief. State v.

Bound, 5th Dist. Guernsey No. 04 CA 8, 2004-Ohio-7097, 2004 WL

2988294, State v. Watson, 126 Ohio App.3d 316, 323, 710 N.E.2d 340 (12th

Dist. 1998), State v. Loza, 12th Dist. Butler No. CA96–10–214, 1997 WL

634348 (Oct. 13, 1997).

6th Dist. Lucas Nos. L-15-1098, L-15-1101, 2016-Ohio-335, 58 N.E.3d 515, ¶15-¶17.

{¶96} We further note that this Court has previously found that Ayers’s convictions

are not against the weight or the sufficiency of the evidence. State v. Ayers, 5th Dist.

Stark No. 2013 CA 00034, 2013-Ohio-5402, ¶26.

{¶97} Accordingly, the trial court did not abuse its discretion in denying Ayers’s

petition based on actual innocence.
Stark County, Case No. 2021CA00134 35

Fifth Ground for Relief

{¶98} In her Fifth Claim for Relief, Ayers argues that but for Fire Inspector

Winters’s false, unsupported and/or materially misleading testimony she would not have

been convicted.

{¶99} It is not unusual in a case in which highly technical, medical or other

specialized evidence is presented for the experts presented by each party to criticize the

other’s training, methodology, and/or conclusions. When a so-called “battle of experts”

takes place during a jury trial such criticisms go to the weight not the admissibility of each

expert’s opinion.

{¶100} An expert witness is not required to be the best witness on the subject.

Alexander v. Mt. Carmel Med. Ctr., 56 Ohio St.2d 155, 159, 383 N.E.2d 564(1978).

(Citations omitted.) In State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d

1017, the Supreme Court observed,

Neither special education nor certification is necessary to confer

expert status upon a witness. “The individual offered as an expert need not

have complete knowledge of the field in question, as long as the knowledge

he or she possesses will aid the trier of fact in performing its fact-finding

function.” State v. Hartman, 93 Ohio St.3d at 285, 754 N.E.2d 1150; State

v. Baston, 85 Ohio St.3d 418, 423, 709 N.E.2d 128. Pursuant to Evid.R.

104(A), the trial court determines whether a witness qualifies as an expert,

and that determination will be overturned only for an abuse of discretion.

State v. Hartman, 93 Ohio St.3d at 285, 754 N.E.2d 1150; State v.

Williams (1983), 4 Ohio St.3d 53, 58, 4 OBR 144, 446 N.E.2d 444.
Stark County, Case No. 2021CA00134 36

Id. at ¶46 (emphasis added).

{¶101} When viewed in this light, Lentini’s affidavit has only limited probative value.

His opinion does not exonerate Ayers. The majority of Lentini’s opinion centers on his

belief that Winters is not qualified, or did not use the techniques that Lentini believes are

the best practice. He opines only that Fire Inspector Winters’s expert testimony was

“unreliable, unscientific, and at odds with generally accepted fire investigation

methodology.” Lentini Affidavit at ¶32. Lentini’s opinion does not affect the other

testimony and evidence that was presented during Ayers’s jury trial. Mr. Lentini does

not opine: 1). the fire was of accidental origin; 2). a person could not have intentionally

started the fire; or 3). having only one ignition point rules out that the fire was started

intentionally. To answer those questions the jury must necessarily look to the other

evidence present by the state during Ayers’s jury trial.

{¶102} In light of the evidence produced that did not depend upon expert

testimony and the entire record in this case, we hold that Ayers has not shown a

reasonable probability that but for counsel's unprofessional errors, the result of her trial

would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989). The

testimony of Lentini could not reasonably be taken to put the whole case in such a

different light as to undermine confidence in the verdict. Ayers was not denied her right

to due process and fair trial by Fire Inspector Winters’s testimony.

{¶103} We further note that this Court has previous found that Ayers’s convictions

are not against the weight or the sufficiency of the evidence. State v. Ayers, 5th Dist.

Stark No. 2013 CA 00034, 2013-Ohio-5402, ¶26.
Stark County, Case No. 2021CA00134 37

Sixth Ground for Relief

{¶104} In her Sixth Ground for Relief Ayers recasts her previous arguments as well

as asserting due process and cruel and unusual punishment claims under the Ohio

Constitution.

{¶105} The claims under the state constitution fail for the reasons set forth above

in our disposition of Ayers’s First through Fifth Grounds for Relief.

Conclusion – Post conviction relief

{¶106} In Harrington v. Richter, the United States Supreme Court discussed the

prejudice prong of the Strickland test,

A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” [Strickland], at 694, 104 S.Ct. 2052. It is not

enough “to show that the errors had some conceivable effect on the

outcome of the proceeding.” Id., at 693, 104 S.Ct. 2052. Counsel’s errors

must be “so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Id., at 687, 104 S.Ct. 2052.

562 U.S. 86, 104,131 S.Ct. 770, 178 L.Ed.2d 624(2011).

{¶107} In light of the evidence produced that did not depend upon expert testimony

and the entire record in this case, we hold that Ayers has not shown a reasonable

probability that but for counsel's unprofessional errors, the result of her trial would have

been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).

{¶108} Accordingly, we hold that Ayers has not shown by clear and convincing

evidence that a constitutional error occurred during her jury trial, and that no reasonable
Stark County, Case No. 2021CA00134 38

fact-finder would have found her guilty but for the constitutional error at trial. R.C.

2953.23(A)(1)(b).

{¶109} Therefore, the trial court correctly concluded that it lacked jurisdiction to

consider Ayers’s untimely petition for post-conviction relief.

{¶110} Ayers’s Second Assignment of Error is overruled.

I. & III.

{¶111} In her First Assignment of Error, Ayers maintains that she relied upon her

trial attorneys to discover and investigate evidence necessary to prepare her defense at

trial and her reliance upon her attorneys unavoidably prevented her from discovering both

the flaws in the state's arson theory and her lack of a fair trial.

{¶112} In Ayers's Third Assignment of Error, she claims that the trial court erred

by denying her a hearing on her motion for leave because she presented a “prima

facie” showing of unavoidable delay under Crim.R.33(B).

Standard of Appellate Review.

{¶113} Crim.R. 33(B) provides that if a defendant fails to file a motion for a new trial

within 120 days of the jury’s verdict, he or she must seek leave from the trial court to file

a delayed motion. 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. State

v. Bethel, __Ohio St.3d __, 2022-Ohio-783, __N.E.3d ___, ¶53, ¶55.

{¶114} To obtain leave, the defendant must show by clear and convincing proof

that he or she was unavoidably prevented from discovering the evidence within the 120

days. State v. Lordi, 149 Ohio App.3d 627, 2002–Ohio–5517, 778 N.E.2d 605(7th Dist.),

¶ 26–27. Clear and convincing proof is that which will produce in the mind of the trier of
Stark County, Case No. 2021CA00134 39

fact a firm belief or conviction as to the facts sought to be established. In re Adoption of

Holcomb, 18 Ohio St .3d 361, 368, 481 N.E.2d 613(1985); Lordi, supra, at ¶ 26.

{¶115} A party is unavoidably prevented from filing a motion for new trial if the party

had no knowledge of the existence of the ground supporting the motion for new trial and

could not have learned of the existence of that ground within the time prescribed for filing

the motion for new trial in the exercise of reasonable diligence. State v. Bethel, 2022-

Ohio-783, ¶21.

{¶116} “To warrant the granting of a motion for a new trial 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 of a new trial if 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.”

State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370(1947), syllabus. Accord, State v.

Hawkins, 66 Ohio St.3d 339, 350, 612 N.E.2d 1227(1993), syllabus; State v. LaMar, 95

Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶85. A trial court abuses its discretion

in granting a defendant a new trial without first finding by clear and convincing evidence

that the defendant was unavoidably prevented from discovering the evidence within the

one hundred twenty-day time frame established by Crim.R. 33(B). State v.

Georgekopoulos, 9th Dist. Summit No. C.A. 21952, 2004-Ohio-5197, ¶8.

{¶117} The decision whether to grant a new trial on grounds of newly discovered

evidence falls within the sound discretion of the trial court. State v. Hawkins, 66 Ohio

St.3d at 350, 612 N.E.2d 1227. We cannot reverse unless there has been a gross abuse
Stark County, Case No. 2021CA00134 40

of that discretion, and whether that discretion has been abused must be disclosed from

the entire record. State v. Petro, 148 Ohio St. at 507- 508, 76 N.E.2d 370, quoting State

v. Lopa, 96 Ohio St. 410, 411, 117 N.E. 319(1917).

{¶118} Trial courts should subject Crim.R. 33(A)(6) new trial motions to the closest

scrutiny:

Applications for new trials on the ground of newly discovered

evidence are not, however, favored by the courts, for the reason that the

moving party has generally had ample opportunity to prepare his case

carefully and to secure all of the evidence before the trial. Such

applications, whether in a court of law or in a court of equity, are entertained

with reluctance and granted with caution, not only because of the danger of

perjury, but also because of the manifest injustice in allowing a party to

allege that which may be the consequence of his own neglect in order to

defeat an adverse verdict. In order to prevent, as far as possible, the fraud

and imposition which defeated parties may be tempted to practice as a last

resort to escape the consequence of an adverse verdict, an application

setting up the discovery of new evidence should always be subjected to the

closest scrutiny by the court. The applicant is required to rebut the

presumption that the verdict is correct and that there has been a lack of due

diligence and to establish other facts essential to warrant the granting of a

new trial upon the ground of newly discovered evidence. The rule to be

deduced from the cases is that where newly discovered evidence is of such

conclusive nature, or of such decisive or preponderating character, that it
Stark County, Case No. 2021CA00134 41

would with reasonable certainty have changed the verdict or materially

reduced the recovery, a new trial should be granted if it is satisfactorily

shown why the evidence was not discovered and produced at the time of

the trial.

Taylor v. Ross, 150 Ohio St. 448, 450–51, 83 N.E.2d 222, 224 (1948), quoting 39

American Jurisprudence, 163, Section 156; accord Domanski v. Woda, 132 Ohio St. 208,

6 N.E.2d 601 (1937).

{¶119} “The question of whether to decide a motion on the supporting evidence

filed with the motion or to hold an evidentiary hearing is within the discretion of the trial

court.” United States v. O'Dell, 805 F.2d 637, 643 (6th Cir.1986); State v. Sutton, 2016-

Ohio-7612, 73 N.E.3d 981, ¶ 13 (8th Dist.).

Issue for Appellate Review: Whether the trial court abused its discretion in

denying Ayers’s motion for leave to file a motion for a new trial filed beyond 120 days of

the jury’s verdict without a hearing.

{¶120} For the trial court to have jurisdiction to entertain the ineffective assistance

of trial counsel claim alleged in the motion for leave to file a motion for a new trial, Ayers

first had to establish that she was “unavoidably prevented from discovery of the facts” on

which she relies.

{¶121} We find it unnecessary to reach this issue. Assuming arguendo that Ayers

would be entitled to a hearing on her motion for leave to file a motion for a new trial, the

hearing would be an exercise in futility. We have concluded in our discussion of Ayers’s

petition for post-conviction relief, Assignment of Error 2, supra, that, in light of the

evidence produced at Ayers’s jury trial that did not depend upon expert testimony, and
Stark County, Case No. 2021CA00134 42

the entire record in this case, Ayers has not shown a constitutional error occurred during

her jury trial and that no reasonable fact-finder would have found her guilty but for the

constitutional error at trial. R.C. 2953.23(A)(1)(b).

{¶122} Because Ayers’s failed to meet her burden under R.C. 2953.23(A)(1)(b),

Ayers’s motion for a new trial would be without merit, therefore rendering moot a hearing

on her motion for leave to file a motion for a new trial. State v. Bethel, __Ohio St.3d __,

2022-Ohio-783, __N.E.3d ___, ¶59 - ¶60. Therefore, the trial court did not abuse its

discretion in overruling Ayers’s motion for leave to file a motion for a new trial without

holding an evidentiary hearing on the motion.

{¶123} Ayers’s First and Third Assignments of Error are overruled.

{¶124} For the foregoing reasons, the judgment of the Stark County Court of

Common Pleas is affirmed.

By Gwin, J.,

Wise, Earle, P.J., and

Hoffman, J., concur