State v. Barnes

[Cite as State v. Barnes, 2022-Ohio-4613.]

COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. CT2022-0001
:
DANIEL BARNES :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2013-0199

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: December 19, 2022

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

RONALD L. WELCH ERIC J. ALLEN
MUSKINGUM CO. PROSECUTOR 4200 Regent St., Suite 200
TAYLOR BENNINGTON Columbus, OH 43219
27 North Fifth St., P.O. Box 189
Zanesville, OH 43702-0189
[Cite as State v. Barnes, 2022-Ohio-4613.]

Delaney, J.

{¶1} Appellant Daniel Barnes appeals from the December 27, 2021, Journal

Entry of the Muskingum County Court of Common Pleas overruling his motion for a new

trial. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

Original conviction and direct appeal

{¶2} The following facts are taken from our opinion at State v. Barnes, 5th Dist.

Muskingum No. CT2015-0013, 2016-Ohio-1168, ¶ 2-12, appeal not allowed, 146 Ohio

St.3d 1430, 2016–Ohio–4606, 52 N.E.3d 1205 (2016) [Barnes I].

{¶3} On July 8, 2013, James Martin visited the Cozy Corner Bar with his friend,

James Rickett, also known as “Hub.” While at the bar, Martin saw appellant, Daniel

Barnes III, and Eric Thornton, also known as “Louie” and “Fats” respectively. Appellant

and Thornton asked Martin for a ride from the bar.

{¶4} Upon arriving at a neighborhood in Zanesville, Martin testified appellant

asked him to drive around the city block one time. Martin stated he drove around the block

and returned to the same spot. Upon parking, Martin felt his seat belt tighten and

something, he believed to be a gun, at the back of his head. He testified he then saw

appellant leaning up with his arm and putting a gun to the back of Rickett's head, telling

him to “just chill.” He noted the gun was black and had a beam on it.

{¶5} Martin testified he threw his hands in the air and told appellant and Thornton

they could have everything. He stated he emptied his pockets on the armrest in the middle

of the car. Appellant and Thornton took everything, including cash monies. Appellant told

Martin to pop the trunk of the car and to get inside of the trunk. Martin testified he observed
[Cite as State v. Barnes, 2022-Ohio-4613.]

the trunk of the car had an emergency release, and after being ordered into the trunk at

gun point, he waited until the car turned into the alley and then activated the emergency

release.

{¶6} Martin escaped and took off running along Cliffwood Avenue. He ran onto

a porch, banging on the door. Appellant caught up with him and pointed the gun at Martin.

A struggle ensued over the gun. Appellant engaged in a fight with Martin, inserting his

fingers into Martin's eyeball socket and biting Martin.

{¶7} Appellant testified at trial on his own behalf. He maintains Martin drove to a

neighborhood in Zanesville to pick up crack cocaine he intended to sell. Appellant testified

Martin went into a crack house to purchase the crack. Appellant waited outside smoking

a cigarette with the car door kicked open when Martin returned. As Martin got back inside

the car, he was angry, and the car door jammed causing damage. Martin then got out of

the car, cussing about the door and became upset. Rickett and Thornton also exited the

vehicle during the incident. Rickett stepped on the side panel and onto the hood of the

car, observing and watching.

{¶8} Appellant maintains a fight ensued, during which Martin's glasses were

knocked off into the street. The fight led to a chase ending on the front porch of Roberta

Jones' residence. Appellant maintains he told Jones to call the police, using her name,

as he was familiar with her from the past.

{¶9} Both appellant and Martin testified a shot was fired on the porch of Roberta

Jones. Appellant then hit Martin with the gun several times. Martin then ran from the porch

to the police cruiser of Patrolman Chris Andrews. Patrolman Andrews testified at trial as

to the incident, and the relation of the events as told to him by Martin in his cruiser.
[Cite as State v. Barnes, 2022-Ohio-4613.]

{¶10} Patrolman Groves of the Zanesville Police Department testified he was

responding to an assault with a handgun when he observed a subject run between two

houses. He and his K–9 officer responded and chased the subject. His K–9 alerted to

something dropped by the subject, which turned out to be a Glock 23 handgun with a

laser. The firearm was later tested and introduced into evidence as the firearm involved

in the incident.

{¶11} As a result of the incident, appellant was indicted on two counts of

kidnapping, in violation of R.C. 2905.01(A)(2) and R.C. 2905.01(A)(3), felonies of the third

degree; one count of aggravated robbery, in violation of R.C. 2911.01(A)(1), a felony of

the first degree, with an attendant gun specification, in violation of R.C. 2941.145; one

count of felonious assault, in violation of R.C. 2903.11(A)(2), a felony of the second

degree, with a gun specification under R.C. 2941.145; and one count of having a weapon

under disability, in violation of R.C. 2929.13(A)(3), a felony of the third degree.

{¶12} Following a jury trial, appellant was found guilty of the aggravated robbery

charge, with a gun specification; felonious assault, with a gun specification; and having

weapons under disability. Appellant was found not guilty of the kidnapping charges.

{¶13} A sentencing hearing was held on February 17, 2015. Appellant was

sentenced to eleven years on the aggravated robbery charge, eight years on the felonious

assault charge, thirty-six months on the having weapons under disability charge, and two

three-year mandatory sentences on the gun specifications. The sentences were run

consecutively for an aggregate twenty-eight year prison term.

{¶14} Appellant filed a direct appeal of his convictions and sentences in Barnes I,

asserting, e.g., that his convictions were against the manifest weight of the evidence. We
[Cite as State v. Barnes, 2022-Ohio-4613.]

overruled four of appellant’s assignments of error but sustained the fifth, finding the trial

court did not make all the requisite findings necessary to support the imposition of

consecutive sentences either during sentencing or in its sentencing entry. Appellant's

sentence was vacated, and the matter remanded for resentencing. Barnes I, supra, 2016-

Ohio-1168, ¶ 78.

Resentencing and appeal

{¶15} By judgment entry filed April 27, 2016, the trial court resentenced appellant

to the same sentence.

{¶16} Appellant filed an appeal of the resentencing, arguing the trial court erred

in imposing maximum consecutive sentences because the sentences are contrary to the

purposes expressed by the Ohio General Assembly. Specifically, appellant claims a

maximum consecutive sentence fails to reduce the state's prison population, fails to save

on costs associated with incarceration by diverting certain offenders from prison, and fails

to shorten the terms of other offenders sentenced to prison. We disagreed and overruled

appellant’s single assignment of error. State v. Barnes, 5th Dist. Muskingum No. CT2016-

0024, 2016-Ohio-8247, ¶ 12, appeal not allowed, 149 Ohio St.3d 1421, 2017–Ohio–4038,

75 N.E.3d 237 (2017), and appeal not allowed, 151 Ohio St.3d 1477, 2017–Ohio–9111,

87 N.E.3d 1273 (2017) [Barnes II].

{¶17} Appellant filed a motion to re-open his appeal pursuant to App.R. 26(B) and

that motion was denied on August 28, 2017. Barnes II, 2016–Ohio–8247.
[Cite as State v. Barnes, 2022-Ohio-4613.]

First motion for new trial: Rickett recants

{¶18} The following statement of fact and case history are taken from our opinion

at State v. Barnes, 5th Dist. Muskingum No. CT2017-0092, 2018-Ohio-1585, ¶ 13-21,

appeal not allowed, 153 Ohio St.3d 1462, 2018-Ohio-3258, 104 N.E.3d 792 [Barnes III].

{¶19} On April 14, 2016, appellant filed a motion for a new trial and submitted a

document described as a “deposition” of James Rickett recanting his trial testimony. On

November 6, 2016, appellant filed a motion for leave to file a motion for a new trial

instanter nunc pro tunc and submitted an affidavit of a “newly discovered witness” Kayla

Dickinson and the affidavit of Jasmine Barnes. He then filed a motion for leave to

supplement his motion for leave to file a motion for new trial on March 15, 2017 and

attached two unsworn statements.

{¶20} Mr. Rickett's deposition testimony is at times ambiguous and confusing, but

it suggests that his contention is that no robbery occurred on June 8, 2013. Instead, a

fight occurred between appellant and Martin which co-defendant Eric Thornton tried to

break up. Rickett contends he attempted to tell detectives the truth, but they “threatened”

him with jail, suggested he was either a “victim” or a “suspect” leaving him no choice but

to corroborate Martin's testimony. Appellant purportedly became aware of Rickett's

deposition in January 2016, when, according to Jasmine Barnes' affidavit, she received

an unsolicited call from Mr. Rickett indicating that he wanted to recant his testimony from

June 8, 2013. We are left to speculate how Mr. Rickett had the resources and ability to

contact Ms. Barnes or if appellant had made any attempt to contact Mr. Rickett prior to

January 2016. The delay between the initial contact by Mr. Rickett in January 2016 and

the filing of the first motion on April 14, 2016, also remains unexplained.
[Cite as State v. Barnes, 2022-Ohio-4613.]

{¶21} Appellant also submitted Kayla Dickinson's affidavit, sworn and signed on

April 13, 2016. She asserts that on June 8, 2013, she lived on Cliffwood and was outside

on her porch smoking a cigarette when she saw four men get out of a car. She recognized

two of the men as Martin and appellant because she “knew both of them well.” She heard

escalating verbal argument and observed “they” were scuffling; the fighting escalated,

and “they” moved down Cliffwood. The affidavit states, “This looked like two grown men

fighting. I then heard [appellant] say “oh my god this nigger [sic] has a gun.” She went

back inside, convinced this was merely “a stupid mutual fight” between two grown men.

“Later” she saw “they” claimed it was a robbery, but she thought it was “no big deal” until

she learned appellant received a lengthy prison sentence, leading her to “reach out to

[appellant's] family on Facebook” and let them know it was a mutual fight.

{¶22} Jasmine Barnes’ affidavit provides a different description of discovering Ms.

Dickinson's testimony. Ms. Barnes states that she met Ms. Dickinson on February 22,

2106, coincidentally, at a laundromat and that Ms. Dickinson disclosed this information

during an informal conversation.

{¶23} Appellee responded to appellant's motion on May 3, 2016, and appellant

replied on May 16, 2016. By judgment entry dated November 1, 2017, the trial court

overruled appellant's motions and concluded “* * * the Court finds the Defendant has

failed to provide newly discovered evidence or substantive grounds for a new trial.”

{¶24} Appellant appealed from the trial court's judgment, but we found he failed

to prove by clear and convincing evidence that he was unavoidably prevented from

discovering, within the prescribed time period, the evidence he relied on to support his

motion and petition, therefore the trial court did not abuse its discretion in denying
[Cite as State v. Barnes, 2022-Ohio-4613.]

appellant's motion for leave to file a delayed motion for new trial. We further found that

the trial court did not abuse its discretion in denying the motions without a hearing

because the evidence, on its face, did not support appellant's claims that he was

unavoidably prevented from timely discovery of the evidence. Barnes III, supra, ¶ 38.

Second motion for new trial and the instant appeal: Martin “recants”

{¶25} On November 15, 2021, appellant filed a “Motion for an Order Granting

Leave to File a Motion for New Trial.” This motion is accompanied by an affidavit and

deposition transcript of the purported victim, James Martin, and a previously unknown

witness, Ericka Walker.

{¶26} Martin now claimed Thornton put the gun to his head, ordered him out of

the vehicle, and directed him to get into the trunk. Thornton started to drive off, but he

argued with appellant and Rickett. Martin jumped out of the trunk and ran off. “A short

time later, [Martin] observed [appellant] outside of the vehicle running in his direction.

[Martin] was unaware if [appellant] was running with him or after him.” Martin’s affidavit

further states that appellant caught up to him and they began to fight; a gun fell on the

ground, they both went after it, and it accidentally discharged. Although Martin’s glasses,

watch, and earring came off during the altercation, it is not true that appellant robbed him

of those items. Police and prosecutors “insisted” that he claim appellant robbed him, but

he was “upset” and “unclear of everything that happened that night.” Portions of the police

report are exaggerated because Martin felt pressured by police. Now, though, he feels

pressured by the weight of his lies and wants to tell the truth.
[Cite as State v. Barnes, 2022-Ohio-4613.]

{¶27} Walker’s affidavit states she knows both Martin and appellant.1 She was

on her front porch smoking a cigarette on the evening of July 8-9, 2013, between 12:30-

1:30. She heard appellant and Martin arguing and saw Martin “throw a fist” at appellant.

The fight escalated, but Walker went inside and then heard a single shot. She moved

shortly after the incident and never spoke to police or prosecutors.

{¶28} Appellee responded with a memorandum contra on December 8, 2021.

{¶29} On December 27, 2021, the trial court denied appellant’s motion for an

order granting leave to file a motion for new trial.

{¶30} Appellant now appeals from the trial court’s judgment entry of December

27, 2021.

{¶31} Appellant raises two assignments of error:

ASSIGNMENTS OF ERROR

{¶32} “I. THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S

MOTION FOR LEAVE TO FILE A MOTION FOR NEW TRIAL.”

{¶33} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN NOT HOLDING AN

EVIDENTIARY HEARING IN THIS MATTER.”

ANALYSIS

{¶34} Appellant’s two assignments of error are related and will be considered

together. He contends the trial court should have granted his motion for leave to file a

motion for new trial and should have held an evidentiary hearing. We disagree.

1
On appeal, appellant omits mention of Walker’s affidavit, but it was part of the motion
before the trial court. We note its similarity to Kayla Dickinson’s affidavit.
[Cite as State v. Barnes, 2022-Ohio-4613.]

{¶35} Appellant’s latest arguments are strikingly similar to those in Barnes III. A

motion for a new trial pursuant to Crim.R. 33 is addressed to the sound discretion of the

trial court. State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990). It is also within the

discretion of the trial court to determine whether a motion for a new trial and the material

submitted with the motion warrant an evidentiary hearing. State v. Hill, 64 Ohio St.3d 313,

333, 1992–Ohio–43, 595 N.E.2d 884 (1992). To constitute an abuse of discretion, a trial

court's decision must be unreasonable, unconscionable, or arbitrary. State v. Adams, 62

Ohio St.2d 151, 404 N.E.2d 144 (1980).

{¶36} Crim.R. 33(B) provides that a motion for new trial based on newly

discovered evidence must be filed:

* * * within one hundred twenty days after the day upon which

the verdict was rendered. If it is made to appear by clear and

convincing proof that the defendant was unavoidably prevented from

the discovery of the evidence upon which he must rely, such motion

shall be filed within seven days from an order of the court finding that

he was unavoidably prevented from discovering the evidence within

the one hundred twenty day period.

{¶37} The verdict in appellant's case was rendered on January 13, 2015, but

appellant's second motion for new trial was not filed until November 15, 2021. “Because

appellant's motion was filed well outside the 120–day period, he was required to obtain

leave of court to file his motion for new trial.” State v. Waddy, 10th Dist. No. 15AP–397,

2016–Ohio–4911, 68 N.E.3d 381, appeal not allowed, 149 Ohio St.3d 1462, 2017–Ohio–

5699, 77 N.E.3d 987 (2017), and cert. denied, U.S. No. 17–71452018 WL 1037605,
[Cite as State v. Barnes, 2022-Ohio-4613.]

citing State v. Hoover–Moore, 10th Dist. Franklin No. 2015–Ohio–4863, 14AP–104, ¶ 13.

“To obtain such leave, the defendant must demonstrate by clear and convincing proof

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

days.” Id. A party is “unavoidably prevented” from filing a motion for a new trial if the party

had no knowledge of the existence of the ground supporting the motion and could not

have learned of that existence within the time prescribed for filing the motion in the

exercise of reasonable diligence. Id., citing State v. Walden, 19 Ohio App.3d 141, 145–

146, 483 N.E.2d 859 (10th Dist.1984).

{¶38} Appellant's proof must be more than conclusory allegations. “Clear and

convincing proof that the defendant was ‘unavoidably prevented’ from filing ‘requires more

than a mere allegation that a defendant has been unavoidably prevented from discovering

the evidence he seeks to introduce as support for a new trial.’” State v. Lee, 10th Dist.

Franklin No. 05AP–229, 2005–Ohio–6374, 2005 WL 3220245, ¶ 9. The requirement of

clear and convincing evidence puts the burden on the defendant to prove he was

unavoidably prevented from discovering the evidence in a timely manner. State v.

Rodriguez—Baron, 7th Dist. Mahoning No. 12–MA–44, 2012–Ohio–5360, ¶ 11. Clear and

convincing proof is that “which will produce in the mind of the trier of facts a firm belief of

conviction as to the facts sought to be established.” Schniebel, 55 Ohio St.3d at 74.

{¶39} “[I]n order to obtain relief pursuant to Crim.R. 33(B) a movant/petitioner

must satisfy the threshold requirement of unavoidable prevention.” State v. Waddy, supra,

at ¶ 27. The “unavoidably-prevented” requirement in Crim.R. 33(B) mirrors the

“unavoidably prevented” requirement in R.C. 2953.23(A)(1). “The phrase ‘unavoidably

prevented’ in R.C. 2953.23(A)(1)(a) means that a defendant was unaware of those facts
[Cite as State v. Barnes, 2022-Ohio-4613.]

and was unable to learn of them through reasonable diligence.” Id. at ¶ 28, citing State v.

Howard, 10th Dist. Franklin No. 15AP–161, 2016–Ohio–504, appeal not allowed, 147

Ohio St.3d 1413, 2016–Ohio–7455, 62 N.E.3d 185, internal citation omitted.

{¶40} In the instant case, there is no indication that appellant made any effort to

obtain the evidence on which he now relies within the time limitations applicable to

motions for a new trial. State v. Leyman, 9th Dist. Medina No. 14CA0037–M, 2016–Ohio–

59, ¶ 14, appeal not allowed, 145 Ohio St.3d 1471, 2016–Ohio–3028, 49 N.E.3d 1314.

{¶41} However, appellant now contends the “unavoidably-prevented” factor

should not apply to him because Martin’s recantation was “Brady material” appellee

should have disclosed to defense counsel; specifically, appellee and law enforcement

“coerced a witness into lying on the stand.” Brief, 9. Appellant cites broadly to the

“deposition of James Martin” to support his claims, without directing us to any specific

portion of the deposition in which Martin claims he was coerced into lying.

{¶42} We note Martin’s affidavit does not state appellee told him to lie; instead,

he claims he was “upset and unclear” when he made the allegations in the first place,

then “he felt he could not tell the truth” because police and prosecutors “were insistent on

him telling the story that [appellant] had robbed him.” Martin Affidavit, ¶ 13. Portions of

the police report were an “exaggeration” and he “felt pressured.” Martin Affidavit, ¶ 14.

{¶43} In the deposition, Martin claims he doesn’t remember giving a statement to

police at all because he had “passed out in the back of the cruiser.” Martin Deposition,

17. When shown his statement, Martin claimed not to recognize it. Martin Deposition,

18. He also could not recall testifying before the grand jury. Martin Deposition, 20. When

asked if “they” wanted him to say anything in particular during trial preparation, Martin
[Cite as State v. Barnes, 2022-Ohio-4613.]

replied, “Not necessarily, but I just believe it was—I mean, it was definitely real to me or—

you know, it was a big deal * * * *--to me. But they were a little more aggressive at wanting

to get them guys off the street.” Martin Deposition, 20-21. In other words, appellee and

law enforcement were the motivators behind prosecution of the charges, not him. Martin

in fact denied that anyone threatened him to lie or exaggerate; he has been threatened

in the past for refusal to cooperate with law enforcement, but “[n]ot in this case * * *.”

Martin Deposition, 32. He felt pressured by prosecutors when he was a juvenile. Martin

Deposition, 37. Martin also downplayed his allegation that the police report contained

exaggerations; he did not confirm that the police reports were “embellished by the officer”

when asked directly; his response was, “I just don’t remember speaking with him.” Martin

Deposition, 47.

{¶44} In short, Martin’s affidavit and deposition contain vague prevarications and

few solid facts; this record does not support appellant’s assertion that Martin was “coerced

into lying on the stand.” Martin himself does not make such an allegation. We find no

support for appellant’s contention that he is relieved from demonstrating he was

unavoidably prevented from discovering it.

{¶45} Thus, the central inquiry in appellant's motion for a new trial is whether the

purported evidence offered by Martin and Walker disclose newly discovered evidence

appellant was unavoidably prevented from obtaining. Barnes III, 2018-Ohio-1585, supra,

¶ 30. The “phrases ‘unavoidably prevented’ and ‘clear and convincing proof’ do not allow

one to claim that evidence was undiscoverable simply because affidavits were not

obtained sooner.” Id., citing State v. Williams, 12th Dist. Butler No. CA2003–01–001,

2003–Ohio–5873, ¶ 21. (Appellant also argues appellee falsely claimed that appellant’s
[Cite as State v. Barnes, 2022-Ohio-4613.]

wife is a drug dealer, but the relevance of this argument to the second motion for leave

to file a motion for new trial is not evident.)

{¶46} The trial court's ruling in this case does not include an explicit finding that

appellant failed to demonstrate he was unavoidably prevented from discovering the

evidence. Although Crim.R. 33(B) does indicate that the court must issue “an order * * *

finding that he was unavoidably prevented from discovering the evidence within the one

hundred twenty day period,” there is no requirement, direct or implied, that a trial court

explicitly find in its judgment that a defendant was not unavoidably prevented from

discovering evidence. Barnes III, 2018-Ohio-1585, supra, ¶ 31, citing State v. Mosley,

10th Dist. Franklin No. 07AP–860, 2008–Ohio–951, ¶ 8, appeal not allowed, 118 Ohio

St.3d 1509, 2008–Ohio–3369, 889 N.E.2d 1026. “Although the better practice would be

for a trial court to give some explanation of the basis for its decision in order to aid

appellate review, given the trial court's general denial of appellant's motion for a delayed

motion for new trial here, we must presume that the court found appellant had failed to

demonstrate that he was unavoidably prevented from discovering the evidence relied

upon in his motion.” Id.

{¶47} Appellant has not offered any explanation that comprises clear and

convincing proof that he could not have learned of the existence of Martin’s “recantation,”

such as it is, or Walker's statement within the time prescribed in the exercise of

reasonable diligence.

{¶48} Martin’s statements, and appellant’s arguments, offer no explanation why

his purported recantation was not brought to light until 2021. Appellant has not submitted

his own affidavit offering any explanation for the delay. “[I]t has been squarely held that
[Cite as State v. Barnes, 2022-Ohio-4613.]

‘the use of an affidavit signed outside of the time limit [under Crim.R. 33(B)] that fails to

offer any reason why it could not have been obtained sooner is not adequate to show by

clear and convincing proof that the evidence could not have been obtained within the

prescribed time period.’” Barnes III, 2018-Ohio-1585, supra, ¶ 32, citing State v. Peals,

6th Dist. Lucas No. L–10–1035, 2010–Ohio–5893, ¶ 25, quoting State v. Franklin, 7th

Dist. Mahoning No. 09 MA 96, 2010–Ohio–4317, ¶ 20; State v. Sandoval, 6th Dist.

Sandusky No. S–13–032, 2014–Ohio–4972, ¶ 16. Thus, the affidavits on their face do not

support unavoidable delay. State v. Thompson, 6th Dist. Lucas No. L–15–1006, 2016–

Ohio–1399, ¶ 20, appeal not allowed, 146 Ohio St.3d 1491, 2016–Ohio–5585, 57 N.E.3d

1171, ¶ 20.

{¶49} Neither the deposition transcript nor the affidavits establish a sufficient basis

for us to find the trial court abused its discretion in overruling the motion without a hearing.

{¶50} Walker's affidavit includes no evidence to establish that appellant was

“unavoidably prevented” from discovering her statement within the time for filing a motion

for new trial. Barnes III, 2018-Ohio-1585, supra, ¶ 34. The key issue is whether appellant

knew or could have discovered through reasonable diligence within the time period

provided under Crim.R. 33(B) that Walker had potentially relevant information. Id.

Walker's affidavit states she knew both appellant and Martin “for a long time,” and offers

no explanation for her failure to come forward with information. She later moved and

“never heard anything” about the incident. “If someone appellant knew well lived so close

to the site of the alleged mutual fight, it remains unexplained why defense investigators

on behalf of appellant would not have sought out such a witness prior to trial. Appellant

bears the burden of establishing, by clear and convincing evidence, that he was
[Cite as State v. Barnes, 2022-Ohio-4613.]

unavoidably prevented from discovering this evidence earlier. He has not shown, through

the affidavits submitted, that [Walker] was unknown or ‘placed beyond the range of a

reasonable investigation by the defense, much less beyond the Subpoena power.’”

Barnes III, 2018-Ohio-1585, supra, ¶ 34, citing Veliev v. Warden, Chillicothe Correctional

Inst., S.D.Ohio No. 2:12–CV–00346, 2014 WL 4805292, *10, (Sept. 26, 2014).

{¶51} No hearing is required, and leave may be summarily denied, where neither

the motion nor its supporting affidavits embody prima facie evidence of unavoidable

delay. Barnes III, 2018-Ohio-1585, supra, ¶ 35, citing State v. Baldwin, 5th Dist. Stark No.

2013CA00134, 2014–Ohio–290, ¶ 24, internal citations omitted. Affidavits filed outside of

the 120–day time limit of Crim. R. 33 that fail to offer a sufficient explanation as to why

evidence could not have been obtained sooner are inadequate to show that the movant

was unavoidably prevented from obtaining the evidence within the prescribed time.

Ambartsoumov v. Warden, Chillicothe Correctional Inst., S.D.Ohio No. 2:12–CV– 345,

2014 WL 4805384, *7, internal citations omitted.

{¶52} Appellant failed to prove by clear and convincing evidence that he was

unavoidably prevented from discovering, within the prescribed time period, the evidence

he is relying on to support his motion and petition. Barnes III, 2018-Ohio-1585, supra, ¶

38. Accordingly, the trial court did not abuse its discretion in denying appellant's motion

for leave to file a delayed motion for new trial. We further find that the trial court did not

abuse its discretion in denying the motions without a hearing because the evidence, on

its face, did not support appellant's claims that he was unavoidably prevented from timely

discovery of the evidence. Id., citing State v. Davis, 9th Dist. Lorain No. 12CA010256,

2013–Ohio–846, ¶ 12, internal citation omitted.
[Cite as State v. Barnes, 2022-Ohio-4613.]

{¶53} Appellant’s two assignments of error are overruled.

CONCLUSION

{¶54} Appellant’s assignments of error are overruled, and the judgment of the

Muskingum County Court of Common Pleas is affirmed.

By: Delaney, J.,

Wise, Earle, P.J. and

Baldwin, J., concur.