State v. Graggs

[Cite as State v. Graggs, 2022-Ohio-3407.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, : No. 22AP-170
(C.P.C. No. 08CR-1098)
v. :
(ACCELERATED CALENDAR)
John Q. Graggs, :

Defendant-Appellant. :

D E C I S I O N

Rendered on September 27, 2022

On brief: [Janet A. Grubb, First Assistant Prosecuting
Attorney], and Kimberly M. Bond, for appellee.

On brief: John Q. Graggs, pro se.

APPEAL from the Franklin County Court of Common Pleas

McGRATH, J.
{¶ 1} Defendant-appellant, John Q. Graggs, appeals from a judgment of the
Franklin County Court of Common Pleas denying his motion for leave to file a motion for
new trial.
{¶ 2} On February 15, 2008, appellant was indicted on one count of aggravated
robbery, in violation of R.C. 2911.01, one count of kidnapping, in violation of R.C. 2905.01,
one count of murder, in violation of R.C. 2903.02, and two counts of aggravated murder,
in violation of R.C. 2903.01. The charges arose out of the shooting death of Fred Brock
("Brock") on January 8, 2008. The matter was tried before a jury beginning January 13,
2009.
{¶ 3} In State v. Graggs, 10th Dist. No. 10AP-249, 2010-Ohio-5716 ("Graggs II"),
this court provided the following summary of the relevant facts of the case as follows. In
No. 22AP-170 2

2008, Marcus Jones ("Jones") leased an apartment on East Main Street from which he and
a friend, Jessie Lanier ("Lanier"), "ran a drug trafficking operation, selling bricks of cocaine
for approximately $28,000 each." Id. at ¶ 3. Approximately three days prior to the
shooting, "Jones hired Brock, a friend of Lanier's, to help guard the cocaine and money kept
in the apartment." Id.
{¶ 4} On the evening of January 8, 2008, Jones and his cousin Dominic attended
a local high school basketball game, while Brock and Lanier remained in the apartment.
Later, Lanier "joined the two men at the game." Id. at ¶ 4. After the game, at approximately
8:30 p.m., "Jones and his cousin drove to Jones' father's house." Id. At "[a]round 9:00 p.m.,
Jones received a call from Lanier telling him to return to his apartment." Id. Jones and his
cousin arrived at the apartment at approximately 9:15 p.m. but "Lanier was not there." Id.
However, about two minutes later, Lanier and a female arrived at the apartment. The three
men entered the residence "and found Brock lying face-down on the floor inside the
apartment; he had been handcuffed and fatally shot in the back. The apartment had been
ransacked; $35,000 in cash and Lanier's revolver were missing." Id.
{¶ 5} Over "the next 15 minutes or so, Jones and Lanier cleared the apartment of
items related to their drug trafficking operation, including $17,000 in cash hidden under
the mattress in the bedroom." Id. at ¶ 5. Jones and Lanier took items out to Lanier's car,
and Lanier "then drove away." Id. Jones and his cousin then went to a nearby recreation
center and Jones called his father. At approximately 9:45 p.m., "Jones' father met the two
men at the recreation center and urged them to call the police." Id. Jones and his cousin
returned to the apartment and called 911.
{¶ 6} At approximately 9:54 p.m., police responded to the 911 call. Evidence
collected by investigators at the scene "included the torn-off fingertip of a green latex glove
found underneath Brock's body; the glove fingertip contained appellant's DNA." Id. at ¶ 6.
During a subsequent search of appellant's residence, investigators recovered a "revolver
and a green latex glove similar to the glove fingertip found at the scene." Id. It was later
determined that the revolver was "not * * * the one that had fired any of the bullets
recovered from the crime scene." Id.
{¶ 7} At the time of the events, appellant "was employed full-time earning $16.36
per hour." Id. at ¶ 7. Appellant "lived in a separate household from his wife and had
difficulty paying his bills, including his car payment. However, on January 9, 2008, the day
No. 22AP-170 3

after Brock's murder, appellant spent over $5,200 in cash at a local jewelry store," and on
January 14, 2008, "he made a $2,900 payment on his car loan." Id.
{¶ 8} Appellant was arrested on February 6, 2008, and "told police that he knew
Brock, but had not seen him in ten years"; appellant "also stated that he had never been to
Jones' apartment and did not even know where it was located." Id. at ¶ 8.
{¶ 9} The parties entered into a stipulation at trial that, "on January 8, 2008,
appellant made three calls between 7:42 and 7:43 p.m. from his cell phone in the vicinity of
a cell tower one-half mile from Jones' apartment and made two calls on his cell phone
between 8:54 and 8:57 p.m. in the vicinity of a cell tower near his home." Id. at ¶ 9.
{¶ 10} At the close of its case, plaintiff-appellee, State of Ohio, dismissed the murder
count; appellant "presented no witnesses or evidence." Id. at ¶ 10. Following deliberations,
the jury returned verdicts finding appellant guilty of aggravated robbery, kidnapping, and
aggravated murder (both counts). The trial court merged the aggravated murder counts
for purposes of sentencing. By judgment entry filed March 4, 2009, the trial court
sentenced appellant to eight years for aggravated robbery, eight years for kidnapping, and
life without parole as to Count 5 (aggravated murder), with the sentences to run
concurrently.
{¶ 11} Appellant filed a direct appeal from the judgment, challenging his convictions
as not supported by sufficient evidence and as against the manifest weight of the evidence.
Appellant also raised a claim of ineffective assistance of counsel. In State v. Graggs, 10th
Dist. No. 09AP-339, 2009-Ohio-5975 ("Graggs I"), this court affirmed the judgment of the
trial court.
{¶ 12} On November 10, 2009, appellant filed a pro se petition for post-conviction
relief, raising claims of ineffective assistance of counsel. By entry filed February 16, 2010,
the trial court denied appellant's petition, finding the claims were barred by res judicata or
were without merit. Appellant appealed the trial court's denial of his petition. In Graggs
II, this court affirmed the judgment of the trial court. Appellant filed a motion for
reconsideration, which this court denied.
{¶ 13} On August 8, 2013, appellant filed a motion for leave to file a motion for new
trial, asserting newly discovered evidence. Attached to appellant's motion was the affidavit
of Kelvin Bridges, an inmate at the Correctional Reception Center ("CRC") in Orient.
Bridges averred that, on the evening of January 8, 2008, he was in Lanier's apartment to
No. 22AP-170 4

purchase cocaine and Lanier had questioned Brock about whether "he had been in the
packages of cocaine," suggesting that "the information provided by Bridges demonstrated
a motive for Lanier to kill Brock." State v. Graggs, 10th Dist. No. 13AP-852, 2014-Ohio-
1195, ¶ 3 ("Graggs III"). The trial court, by entry filed September 24, 2013, denied
appellant's motion for leave to file a motion for new trial, and appellant appealed that
judgment. In Graggs III, this court affirmed the judgment of the trial court, and we later
denied appellant's application for reconsideration.
{¶ 14} On March 24, 2015, appellant filed a second motion for leave to file a motion
for new trial based on newly discovered evidence. In support of his motion, appellant
attached the affidavit of Jamal Sealy, "another" inmate at CRC, who averred that, in June
2008, Lanier "confided in him that he killed Brock." State v. Graggs, 10th Dist. No. 15AP-
480, 2015-Ohio-3990, ¶ 5 ("Graggs IV"). Sealy further averred he "did not discover
appellant had been convicted of murdering Brock until October 2014." Id. Sealy stated that
he told appellant about this conversation after he became aware they were both
incarcerated at the same facility.
{¶ 15} On April 8, 2015, the trial court denied appellant's motion. In Graggs IV,
this court affirmed the judgment of the trial court, holding in part that the affidavit filed by
appellant in support of his motion did not disclose a strong probability that it would change
the result if a new trial was granted. Appellant filed an application for reconsideration,
which this court denied.
{¶ 16} On July 14, 2016, appellant filed a third motion for leave to file a motion for
new trial based on newly discovered evidence. Attached to the motion was the affidavit of
Michael Shepard who averred that he was in Lanier's apartment on the evening of
January 8, 2008, and that he was in the bathroom when he heard shots fired. Shepard
stated that he first told appellant about the events in 2016 while they were both incarcerated
at the same facility. By entry filed August 1, 2016, the trial court denied appellant's motion
for leave.
{¶ 17} On August 2, 2016, appellant filed another motion for leave to file a motion
for new trial based on newly discovered evidence. The trial court denied that motion by
entry filed August 4, 2016. Following an appeal, this court affirmed the judgment of the
trial court in State v. Graggs, 10th Dist. No. 16AP-611, 2017-Ohio-4454 ("Graggs V").
No. 22AP-170 5

{¶ 18} On January 22, 2018, appellant filed a "successive" petition for post-
conviction relief. By entry filed April 11, 2018, the trial court denied appellant's successive
petition, and appellant appealed that judgment. In State v. Graggs, 10th Dist. No. 18AP-
491, 2019-Ohio-361 ("Graggs VI"), this court reversed the judgment of the trial court on
the basis that it denied the petition without considering the affidavit of Albert Mullins who
stated in his affidavit that he had collected used latex gloves from his worksite job (working
with appellant) and had taken them to the apartment where Brock had been shot to be
reused. Following this court's remand, the trial court issued a journal entry denying
appellant's successive petition for post-conviction relief, and appellant appealed that
judgment. In State v. Graggs, 10th Dist. No. 19AP-173, 2019-Ohio-4694 ("Graggs VIII"),
this court affirmed the judgment of the trial court.
{¶ 19} On November 20, 2018, appellant filed with this court an application for
reopening pursuant to App.R. 26(B). This court denied the application as untimely. See
State v. Graggs, 10th Dist. No. 09AP-339 (Nov. 20, 2018) (memorandum decision)
("Graggs VII").
{¶ 20} On November 25, 2019, appellant filed a motion for leave to file a motion for
new trial based on newly discovered evidence. Specifically, appellant argued that the new
evidence "is an affidavit from Albert Mullins in which Mullins admits that he physically
transferred discarded latex gloves of Graggs' in to Marcus Jones' apartment on numerous
occasions within the ninety (90) days preceding the crimes." (Nov. 25, 2019 Mot. for Leave
at 2.) Appellant argued he did not become aware of this information until August 2017,
when Mullins "ran into [appellant]" at CRC. (Nov. 25, 2019 Mot. for Leave at 4.) The state
filed a memorandum contra appellant's motion, arguing there was no showing he was
unavoidably prevented from discovering the evidence through reasonable diligence.
{¶ 21} By entry filed June 30, 2020, the trial court denied appellant's motion for
leave to file motion for new trial, holding that the affidavits of appellant and Mullins "do
not demonstrate by clear and convincing evidence that [appellant] was unavoidably
prevented from the discovery of the evidence upon which he now seeks to rely." (June 30,
2020 Entry at 8.) Appellant did not timely appeal that decision, and he subsequently filed
with this court a motion for leave to file a delayed appeal. On November 17, 2020, this court
denied appellant's motion.
No. 22AP-170 6

{¶ 22} On August 10, 2021, appellant filed a motion for leave to file an untimely
motion for new trial based on newly discovered evidence. In the accompanying
memorandum in support, appellant argued the newly discovered evidence "is an affidavit
from Leroy S. Brown, Jr., in which Brown admits that he physically transferred discarded
latex gloves of Graggs into the apartment where Jessie Lanier (Mook) sold crack out of on
East Main Street before the date of the crimes." (Aug. 10, 2021 Mot. for Leave at 2.)
Appellant argued that his discovery of this information was "clearly a result of luck and
happenstance" after he "ran into Brown" at CRC in July 2021, and Brown "struck up a
conversation" with him. (Aug. 10, 2021 Mot. for Leave at 5.)
{¶ 23} On September 15, 2021, the state filed a memorandum in opposition to
appellant's motion for leave. By entry filed December 30, 2021, the trial court denied
appellant's motion for leave to file a motion for new trial.
{¶ 24} On appeal, appellant sets forth the following two assignments of error for this
court's review:
[I.] THE TRIAL COURT ABUSED ITS DISCRETION WHEN
IT DISMISSED MR. GRAGGS' MOTION FOR LEAVE TO FILE
A MOTION FOR A NEW TRIAL WHEN THE RECORD
SHOWED THAT (1) MR. GRAGGS WAS UNAVOIDABLY
PREVENTED FROM DISCOVERING THE EVIDENCE
OFFERED BY BROWN.

[II.] THE TRIAL COURT ABUSED ITS [DISCRETION] WHEN
IT DISMISSED MR. GRAGGS' MOTION FOR LEAVE TO FILE
A MOTION FOR NEW TRIAL WITHOUT A HEARING.

{¶ 25} Appellant's assignments of error are interrelated and will be considered
together. Under these assignments of error, appellant challenges the trial court's denial of
his motion for leave to file a motion for new trial, and further contends the court erred in
failing to conduct a hearing on his motion.
{¶ 26} Under Ohio law, "[a] trial court's ruling on a motion for leave to move for a
new trial is reviewed for an abuse of discretion." State v. McNeal, ___ Ohio St.3d ___,
2022-Ohio-2703, ¶ 13.1 The decision by a trial court " 'whether to conduct an evidentiary
hearing on a motion for leave to file a motion for a new trial is discretionary and not

1Similarly, 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. Noor, 10th Dist. No. 16AP-340, 2016-Ohio-7756, ¶ 9.
No. 22AP-170 7

mandatory.' " State v. Ambartsoumov, 10th Dist. No. 12AP-878, 2013-Ohio-3011, ¶ 13,
quoting State v. Cleveland, 9th Dist. No. 08CA009406, 2009-Ohio-397, ¶ 54. More
specifically, "[a] criminal defendant 'is only entitled to a hearing on a motion for leave to
file a motion for a new trial if he submits documents which, on their face, support his claim
that he was unavoidably prevented from timely discovering the evidence at issue.' " Id.,
quoting Cleveland, citing State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, ¶ 7
(2d Dist.).
{¶ 27} Crim.R. 33(A) "provides the grounds on which a trial court may grant a
defendant a new trial." McNeal at ¶ 14. At issue in this case are the grounds set forth under
Crim.R. 33(A)(6).
{¶ 28} Crim.R. 33 states in part:

(A) Grounds. A new trial may be granted on motion of the
defendant for any of the following causes affecting materially
the defendant's substantial rights:

***

(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.

{¶ 29} Thus, "[u]nder Crim.R. 33(A)(6), a trial court may grant a motion for new
trial based on the discovery of new evidence material to the defense that the defendant
could not, with reasonable diligence, have discovered and produced at trial." State v.
Brodbeck, 10th Dist. No. 17AP-61, 2017-Ohio-7187, ¶ 10, citing Graggs III at ¶ 5. Under
Ohio law, " ' "[n]ewly discovered evidence" is "evidence of facts in existence at the time of
trial of which the party seeking a new trial was justifiably ignorant." ' " Id., quoting State v.
Holzapfel, 10th Dist. No. 10AP-17, 2010-Ohio-2856, ¶ 10, quoting State v. Love, 1st Dist.
No. C-050131, 2006-Ohio-6158, ¶ 43.
{¶ 30} Crim.R. 33(B) states in part:
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
No. 22AP-170 8

days from an order of the court finding that he was unavoidably
prevented from discovering the evidence within the one
hundred twenty day period.

{¶ 31} Under Crim.R. 33(B), "when a new-trial motion is premised on newly
discovered evidence, the defendant must file the motion within 120 days of the date of the
jury's verdict." McNeal at ¶ 15. However, "Crim.R. 33(B) excuses a defendant's failure to
move for a new trial within the * * * 120-day deadline * * * if the defendant proves by clear
and convincing evidence that he or she was unavoidably prevented from discovering the
evidence on which the motion would be based within that time." Id. at ¶ 16. A defendant
is unavoidably prevented from discovering new evidence if he "had no knowledge of the
existence of the new evidence and, in the exercise of reasonable diligence, could not have
learned of its existence within the time prescribed for filing a motion for new trial." State
v. Lundy, 10th Dist. No. 19AP-505, 2020-Ohio-1585, ¶ 11.
{¶ 32} In order to warrant the granting of a motion for new trial in a criminal case
based on grounds of newly discovered evidence, a 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 cumulative to former evidence, and (6) does not merely impeach or contradict the
former evidence." State v. Petro, 148 Ohio St. 505 (1947), syllabus.
{¶ 33} In support of his claim of newly discovered evidence, appellant attached to
his motion for leave his own affidavit and the affidavit of a fellow inmate, Leroy S. Brown.
The trial court, in its entry denying appellant's motion for leave to file a motion for new
trial, summarized the evidence set forth under the affidavits as follows:
Apparently in mid-2021 while incarcerated at the CRC in
Orient, Ohio Mr. Graggs had a conversation with a man known
to him only as "Philly." That was "the first time I had a full
conversation with Philly since 2007." (Graggs Aff'd. ¶¶ 8-10).
Graggs learned "Philly's" real name was Leroy Brown, a fellow
inmate.

As alleged in previous motions, Mr. Graggs' discussion with
Mr. Brown turned to the circumstances involved in Graggs'
murder conviction. "I revealed to him that I was convicted
primarily because the state claimed to find the fingertip of a
latex glove that had my DNA" at the murder scene in Whitehall.
No. 22AP-170 9

(¶ 13). He points out once again that he did odd jobs "like
washing cars and detailing, painting of houses, gutting of
houses, some plumbing work, replacing dry wall and removing
trees" and "always wore and passed out latex gloves to everyone
who worked for me on these jobs." (¶¶ 4-5). Graggs claims he
was surprised to learn that Brown took used latex gloves after
doing odd jobs with Graggs and others to the apartment where
the murder occurred "to pack crack in when he would buy crack
from Jessie [Lanier], always leaving the latex gloves he did not
use in the apartment. (¶ 14). Mr. Graggs claims he was "totally
surprised by what Brown had told me. At no time did I have
reason to ever think that Brown or anyone else had a reason to
take used latex gloves, which were trash, to be reused in some
way again." (¶ 19.)

Leroy Brown's affidavit says that "[p]art of 2007, I stayed in the
area of the Motel One on East Main Street, I was homeless."
(Brown Affidavit, ¶ 1) (sic). He and others hung around a gas
station at James Road and East Main Street asking customers
for spare change and, at times, working "on some jobs with
John [Graggs], hanging dry wall, gutting homes and painting."
"It was common knowledge with the guys that worked for John
that he had a thing about wearing and passing out latex gloves
while working" such that Mr. Brown would take used latex
gloves – "which included the glove of John's" – to the
apartment where Jesse [Lanier] sold crack. (¶¶ 6-7). While
there, Brown would buy crack from Lanier, and then re-sell
smaller amounts to crack smokers in the general area of his
Motel. (¶¶ 12-14.)

Interestingly, Mr. Brown puts the time at which he "did this
[as] 6 or 7 times before the end of December 2007, because I
was only in that area for a few months." (¶ 19). He also says
that "because I wanted to go home to Philadelphia for the
holiday" he "worked for John a few days that week before I left."
(¶ 20). This suggests he was gone by Christmas of 2007. The
murder did not occur until January 8, 2008.

(Dec. 30, 2021 Entry at 2-3.)

{¶ 34} The trial court, in addressing appellant's theory under his motion for leave,
found that the motion "rehashes the same argument that has been repeatedly rejected in
response to his prior motions." (Dec. 30, 2021 Entry at 3.) Specifically, the court held,
while appellant "has been successful in identifying numerous people who might have
transported a used latex glove with his DNA into Jesse Lanier's apartment before the
No. 22AP-170 10

murder, both this court and the Court of Appeals have recognized that does not eliminate
Graggs or provide more than an argument he was wrongfully convicted." (Dec. 30, 2021
Entry at 3.) The trial court further observed: "No matter how many former customers of
the crack cocaine apartment Graggs happens across in prison, they all tell essentially the
same story. That story was squarely presented at Graggs' trial by his defense counsel [and]
[t]he jury did not buy it." (Dec. 30, 2021 Entry at 3.) The court also noted that "[p]revious
decisions rejected arguments that trial counsel for Mr. Graggs was ineffective." (Dec. 30,
2021 Entry at 3.)
{¶ 35} In considering the affidavit evidence, the trial court concluded "the record
does not demonstrate by clear and convincing evidence that [appellant] was unavoidably
prevented from presenting evidence essentially identical to that upon which he now seeks
to rely." (Dec. 30, 2021 Entry at 8.) The trial court also held that appellant's proposed
evidence was not newly discovered, and that "the Philly Brown affidavit is 'merely
cumulative to former evidence' " under the test in Petro. (Dec. 30, 2021 Entry at 8.)
{¶ 36} As to the claim he was unavoidably prevented from timely discovering what
he contends to be new evidence, appellant maintains he could not have discovered the
information contained in Brown's affidavit until he "ran into Brown in prison." (Appellant's
Brief at 6.) He further asserts "[t]he practice of collecting discarded used latex gloves to be
used again in the drug trade is not common knowledge, and under any reasonable person
prudent standard [sic] it is totally unreasonable to assume that one would have knowledge
that this would be done." According to appellant, "until 2017, nine (9) years after Graggs'
conviction, when [Albert] Mullins informed [appellant] that he had collected and took used
latex gloves from the car wash[] to the Whitehall apartment [appellant] lacked the
knowledge that these circumstances existed, and had no reason to believe or suspect that
anyone was collecting his used latex gloves to be used for any purpose." (Appellant's Brief
at 7, 8.)
{¶ 37} In response, the state argues the record indicates appellant knew, prior to
trial, that others took his latex gloves into the apartment. The state contends appellant
could have called any number of witnesses at trial to support this theory, and further notes
the trial court found the decision by his trial counsel not to present such witnesses at trial
was intentional. The state also cites appellant's prior affidavit in which he acknowledged
telling his trial counsel about various individuals he worked with at a car wash (including
No. 22AP-170 11

Albert Mullins); the state maintains that appellant, based on averments in his prior affidavit
alone, cannot show he was unavoidably prevented from discovering witnesses who could
have offered testimony about the latex gloves.
{¶ 38} On review, we find the trial court could have reasonably concluded appellant
failed to show by clear and convincing evidence that he had no knowledge of the existence
of the offered evidence and could not have discovered it by the exercise of reasonable
diligence. In the present case, the same judge who presided over appellant's trial also
addressed appellant's prior multiple motions, including a 2019 motion for leave to file a
motion for new trial supported by the affidavit of Mullins who, similar to the statements by
Brown in the instant action, averred that he had worked with appellant and had taken latex
gloves from the workplace to the subject apartment to be reused for drug activity. In that
prior motion, as well as the motion in the instant case, appellant submitted similar
affidavits stating he was "totally surprised" by what Brown (and Mullins) told him, and that
"[a]t no time did I have reason to ever think that Brown or anyone else had a reason to take
used latex gloves, which were trash, to be reused in some way again." (Appellant's July 27,
2021 Aff. at ¶ 19.)
{¶ 39} As noted by the trial court, however, in a previous affidavit filed by appellant,
he "testified that before trial he brought all of this up with his counsel, pointing out that an
'African woman * * * could verify that I wore the latex gloves during the times that I washed
cars,' " and that "he gave his trial lawyers 'a list of three guys who knew that I used latex
gloves while washing cars at the car wash that had worked for me, which included Albert
Mullins.' " (Dec. 30, 2021 Entry at 5.) Appellant also "recognized in pretrial preparations
with his two lawyers that there was an argument available 'that someone [else] could have
tracked the fingertip in to the apartment.' " (Dec. 30, 2021 Entry at 5.)
{¶ 40} The trial court found the record demonstrated appellant and his defense
counsel "were all aware of the multitude of people who visited the apartment to buy crack
cocaine, and people with whom [appellant] did odd jobs in the area of the murder and
provided latex gloves." (Dec. 30, 2021 Entry at 5.) The trial court also cited the fact
appellant "knew 'Philly' was yet another person from the neighborhood who could have
been called at [appellant's] trial to testify to use of latex gloves." (Dec. 30, 2021 Entry at 3.)
Further, while appellant contends it is "totally unreasonable" to assume that one would
have knowledge that latex gloves are used in the drug trade, such evidence was, as noted by
No. 22AP-170 12

the trial court, presented during his trial. Specifically, this issue was explored during the
testimony of Jones, in which he testified as to his practice of keeping latex gloves in the
apartment "[t]o break down cocaine." (Tr. at 401.) Jones also testified during trial that he
knew an individual named Albert Mullins, and that he "used to stay at the house." (Tr. at
394.)
{¶ 41} On the record presented, we find the trial court did not err in its
determination that appellant failed to demonstrate, by clear and convincing evidence, that
he was unavoidably prevented from discovering the new evidence he relies upon.
Accordingly, the trial court did not abuse its discretion in denying appellant's motion for
leave to file a motion for new trial.
{¶ 42} Even assuming, however, appellant had provided clear and convincing proof
he was unavoidably prevented from discovering the facts upon which he relies, we agree
with the trial court's further determination that such evidence was not newly discovered, as
it was cumulative to former evidence. On this issue, we initially address appellant's
contention that the trial court erred in considering the "fifth * * * element" of the Petro
factors, arguing that, until a court grants a motion for leave, the merits of a motion for new
trial are not properly before the trial court. (Appellant's Brief at 13.)
{¶ 43} Appellant previously raised the same argument in Graggs III, in which the
trial court, in ruling on appellant's motion for leave to file a motion for new trial, held that
appellant failed to establish by clear and convincing evidence that he was unavoidably
prevented from discovering the evidence within the time period permitted, but further
concluded that the alleged newly discovered evidence did not establish a strong probability
of a changed result if a new trial were granted (i.e., under the first Petro factor). In that
appeal, appellant argued "the only issue before the court below was whether he was
unavoidably prevented from discovering the evidence relied upon in support of his motion
for new trial and that the court abused its discretion in this case by going beyond that initial
inquiry." (Emphasis sic.) Graggs III at ¶ 8.
{¶ 44} In Graggs III, this court "reject[ed] appellant's argument as an unduly
narrow reading of Crim.R. 33 and the two-step procedure for untimely filing of a motion
for a new trial," holding in part:
This court has previously affirmed judgments in cases where
the trial court denied leave to file an untimely motion for new
No. 22AP-170 13

trial based on the movant's failure to demonstrate that he was
unavoidably prevented from discovering the evidence in
question and where the trial court also addressed the
underlying merits of the argument in favor of a new trial. See,
e.g., State v. Stepherson, 10th Dist. No. 13AP-282, 2013-Ohio-
5396, ¶ 17 ("The trial court also addressed the merits of the
motion for new trial, holding that a new trial was not warranted
in light of this court's prior determination that any error as to
the admissibility of the eyewitness identification of Curry-
Meinen was harmless. We agree."); [State v.] Bethel[,] [10th
Dist. No. 09AP-924, 2010-Ohio-3837,] ¶ 16 ("[T]he trial court
addressed not only the motion for leave to file a motion for new
trial, but also the merits of the motion for new trial based on
newly discovered evidence."). In circumstances such as those
presented in this case, where a trial court denies a motion for
leave because it concludes that the movant failed to
demonstrate by clear and convincing evidence that he was
unavoidably prevented from discovering the alleged newly
discovered evidence, the trial court does not necessarily abuse
its discretion by also addressing the merits of the movant's
argument in favor of a new trial. * * *

Id. at ¶ 9.

{¶ 45} Subsequent to Graggs III, while this court has cautioned against "conflating
the two distinct issues of the merits of whether appellant is entitled to a new trial rather
than addressing the threshold issue of whether appellant was unavoidably prevented from
discovering new evidence," we have nevertheless found no abuse of discretion by a trial
court in denying a motion for leave to file a motion for new trial where the trial court
considered the merits of a defendant's new trial argument. Brodbeck at ¶ 17 (noting that,
while the trial court did not address whether the appellant was unavoidably prevented from
discovering the evidence relied on in denying his motion for leave, the trial court did not
err in rejecting appellant's arguments for a new trial on the merits based on the first Petro
factor). See also State v. Hoover-Moore, 10th Dist. No. 14AP-1049, 2015-Ohio-4863, ¶ 15,
21 (while trial court denied motion for leave without addressing whether appellant was
unavoidably prevented from discovering the evidence she relied on in her motion, court did
not abuse its discretion in denying motion because appellant's evidence "does not satisfy
the Petro requirements in order to warrant the granting of a new trial based on newly
discovered evidence"). Accordingly, and as previously held in Graggs III, appellant's
No. 22AP-170 14

argument that the trial court erred in considering the Petro factors is unpersuasive as it
rests on "an unduly narrow reading of Crim.R. 33." Graggs III at ¶ 9.
{¶ 46} In the present case, in rejecting appellant's claim that the affidavit of Brown
constituted newly discovered evidence, the trial court determined appellant "knew before
his trial of the DNA found in a scrap of latex glove under the victim's body; that many people
were given gloves while washing cars or doing other odd jobs with him; and of the use of
latex gloves to handle narcotics at the murder scene." (Dec. 30, 2021 Entry at 8.) As
previously cited above, the court considered the fact that appellant and his defense were
aware, at the time of trial, of the "multitude of people who visited the apartment to buy
crack cocaine," and the individuals with whom appellant "did odd jobs in the area of the
murder and provided latex gloves." (Dec. 30, 2021 Entry at 5.)
{¶ 47} The trial court analyzed the claim of "newly discovered" evidence in the
context of the defense strategy.2 Specifically, the court observed, while trial counsel did not
"subpoena any of those potential witnesses," the questioning of witnesses at trial "gave the
jury some information about narcotics and latex gloves at the murder scene, down to
whether green or blue gloves were used to handle drugs in the apartment," and the trial
itself "referenced the many people purchasing drugs or otherwise involved in drug-dealing
at the murder scene." The trial court found that the decision of trial counsel to defend the
case "without calling the African woman, Mullins[,] or apparently even knowing about
Philly Brown," permitted trial counsel to "explicitly argue[] about the multiple people and
multiple gloves in the apartment," thereby "avoid[ing] serious credibility issues with people
like Brown who were visiting the scene while buying and selling crack cocaine." In
concluding such evidence was not newly discovered, the trial court noted that "[l]eaving
aside Philly Brown, * * * four people acknowledged previously by Mr. Graggs could have
provided exactly the same evidence to back up the 'anyone could have taken a latex glove
previously touched by Graggs into the apartment' argument." (Dec. 30, 2021 Entry at 5, 6.)
{¶ 48} Thus, in reviewing the evidence submitted, the trial court determined the
alleged newly discovered evidence was either known to appellant and his counsel or readily
obtainable, and that the trial strategy was to not call witnesses with a drug history (i.e.,

2 As previously noted, the same judge who denied appellant's motion for leave to file a motion for new trial in
the present case also presided over appellant's trial (and ruled on various other motions filed by appellant,
including the 2019 motion for leave to file a motion for new trial containing the affidavit of Albert Mullins).
No. 22AP-170 15

while potential witnesses such as Mullins may have been available through due diligence,
counsel chose not to pursue this tactic). In this respect, a decision by trial counsel not to
call witnesses or pursue certain information based on " 'a tactical decision' " is not deemed
to be newly discovered evidence. State v. Solat, 10th Dist. No. 96APC06-815 (Jan. 30, 1997)
("the belated inquiry into information of which the defense had long been aware does not
constitute 'new evidence' within the meaning of Crim.R. 33"); State v. Jones, 8th Dist. No.
81112, 2003-Ohio-3004, ¶ 71 (affirming trial court's denial of motion for new trial where
defense counsel "made a tactical decision not to call an unreliable and questionable witness
to the stand").
{¶ 49} The trial court further determined the affidavit evidence of Brown (similar to
the earlier affidavit of Mullins) was cumulative to the defense theory that the jury heard
and found unconvincing as well as to what defense counsel could have presented at trial.
We agree that such evidence is "cumulative in nature," and not newly discovered, as it seeks
to "bolster" the strategy/argument by counsel at trial, i.e., that various drug users
frequented the apartment and that latex gloves were brought into the apartment for drug
activity. State v. Nahhas, 11th Dist. No. 2001-T-0045, 2002-Ohio-3708, ¶ 31-32 (affidavits
submitted "merely to bolster" arguments made at trial were cumulative and "not newly
discovered evidence under the requirements set forth by the Supreme Court of Ohio"). On
review, we agree with the trial court that the "new" evidence was cumulative to the defense
theory as well as to what the defense could have presented at trial (but chose not to), and
we find no abuse of discretion by the trial court in its determination that the affidavit
evidence was not newly discovered.
{¶ 50} Appellant also asserts the trial court erred in denying his motion for leave to
file a motion for new trial without an evidentiary hearing. This contention is unpersuasive.
{¶ 51} As discussed above, the trial court did not abuse its discretion in concluding
appellant failed to demonstrate, by clear and convincing evidence, that he was unavoidably
prevented from discovering the alleged newly discovered evidence, nor did the court err in
its determination that such evidence is not newly discovered. Under circumstances in
which "the actual content of the affidavit could not form the basis of a new trial," a trial
court does not abuse its discretion in failing to conduct a hearing on the issue whether the
appellant was unavoidably prevented from filing his motion on time. State v. Williams, 7th
Dist. No. 14 JE 13, 2015-Ohio-2687, ¶ 5. See also State v. Barrow, 8th Dist. No. 103331,
No. 22AP-170 16

2016-Ohio-2839, ¶ 11 (trial court did not abuse its discretion in denying motion for leave to
file a motion for new trial without an evidentiary hearing where appellant did not produce
newly discovered evidence); State v. Williams, 8th Dist. No. 99136, 2013-Ohio-1905, ¶ 18
(trial court properly denied motion for leave to file a motion for new trial without a hearing
where "the 'newly' discovered evidence * * * was cumulative of other evidence disclosed to
the defense and/or presented to the jury at trial"). In light of the above determinations and
the record presented, we find no abuse of discretion by the trial court in declining to hold a
hearing on the motion for leave to file a motion for new trial.
{¶ 52} Based on the foregoing, appellant's two assignments of error are without
merit and are overruled, and the judgment of the Franklin County Court of Common Pleas
is hereby affirmed.
Judgment affirmed.

BEATTY BLUNT & MENTEL, JJ., concur.

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