State v. Johnson

[Cite as State v. Johnson, 2023-Ohio-918.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

MELVIN E. JOHNSON JR.,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY
Case No. 22 MA 0096

Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 13 CR 380D

BEFORE:
Carol Ann Robb, Cheryl L. Waite, David A. D’Apolito, Judges.

JUDGMENT:
Affirmed.

Atty. Gina DeGenova, Mahoning County Prosecutor, Atty. Edward A. Czopur, Assistant
Mahoning County Prosecutor, Mahoning County Prosecutor's Office, 21 West Boardman
Street, 6th Floor, Youngstown, Ohio 44503 for Plaintiff-Appellee and

Atty. Gregory S. Robey, Robey & Robey, 14402 Granger Road, Cleveland, Ohio 44137
for Defendant-Appellant.
 –2–

Dated: March 21, 2023

Robb, J.

{¶1} Defendant-Appellant Melvin E. Johnson Jr. appeals the decision of the
Mahoning County Common Pleas Court denying his motion for leave to file a new trial.
He contends he was entitled to leave because he presented clear and convincing proof
he was unavoidably prevented from discovering the evidence he relied on in moving for
a new trial. He alternatively contends he was entitled to a hearing on his motion for leave
and to findings of fact and conclusions of law. We conclude Appellant was not entitled to
leave, a hearing, or findings of fact and conclusions of law. Accordingly, the trial court’s
judgment is affirmed.
STATEMENT OF THE CASE
{¶2} On May 21, 2015, an indictment was filed against Appellant in a pre-existing
case against other defendants.1 He was tried jointly with Vincent Moorer at a bench trial
in March 2017. Appellant was convicted of the attempted murder of John Willie Myles
(with a firearm specification), having a weapon while under disability, and engaging in a
pattern of corrupt activity (which included federal drug offenses and was a first-degree
felony due to the attempted murder).
{¶3} At trial, Morris Perry testified he was a member of a large-scale drug
distribution organization led in part by Moorer with Appellant considered a triggerman and
drug transporter for the organization. (Tr. 453-457, 463-464, 470, 473). After one of his
dealers was robbed, Moorer kept the dealer’s phone to communicate with the person who
allegedly orchestrated the robbery. On March 20, 2014, Moorer and Perry were at
Appellant’s house while Moorer was texting this individual, who turned out to be Myles.
The texts were admitted as evidence. As the texts were read aloud, Appellant participated
in the conversation. (Tr. 490-494). They set up a meeting with Myles near an intersection
on South Avenue. (Tr. 492, 625-626).
{¶4} Perry said he was in the front passenger seat and Appellant was in the back
seat of a vehicle Moorer drove to the meeting location. (Tr. 493). According to Perry,
Appellant exited the vehicle with a gun. (Tr. 495-496). As Perry and Moorer waited in

1 Mahoning C.P. No. 13 CR 380 D.

Case No. 22 MA 0096
 –3–

the parking lot of a car wash, Perry heard gunshots and saw the victim run across the
street and fall. (Tr. 497-498). After Appellant returned to the vehicle, Moorer drove away
as Appellant reported he had the opportunity to pull out his gun and shoot when the victim
asked him for a lighter. (Tr. 499). The police found Myles near the scene with multiple
gunshot wounds. (Tr. 400, 416, 424). His words were recorded at the scene by an officer
who found him yelling for help. (Tr. 418-422); (St.Ex. 555). Myles did not appear at trial
to testify.
{¶5} A video from the car wash showed a car (matching the description provided
by Perry) in the parking lot for a few minutes. A neighbor who heard the gunshots
confirmed seeing the vehicle pull out of the car wash and retrieve a man. (Tr. 391-392).
An occupant of a nearby vehicle noticed gunfire coming from that direction and saw a
light-skinned black man standing with a handgun as another man ran away screaming for
help. (Tr. at 377-379). Six 9mm shell casings were recovered; they were all fired from
the same firearm. (Tr. 435).
{¶6} After being convicted of the aforementioned charges, the court sentenced
Appellant to maximum consecutive sentences for a total of 28 years to run consecutive
to his federal sentence. (3/22/17 J.E.). His two federal convictions were for conspiracy
to possess with intent to distribute heroin and use of a telephone to facilitate drug
trafficking. (Tr. 107); (St.Ex. 407). On appeal, this court affirmed. State v. Johnson, 7th
Dist. Mahoning No. 17 MA 0050, 2019-Ohio-1089.
{¶7} On February 23, 2022, Appellant filed a motion requesting counsel. He said
the discovery in his case was sealed, he was incarcerated out-of-state in a federal prison,
and he had new evidence. He attached affidavits from Myles and Perry. The trial court
denied the request for counsel. (2/28/22 J.E.).
{¶8} On June 22, 2022, an attorney representing Appellant filed a motion for
leave to file a new trial motion, stating the motion for new trial was incorporated in the
motion for leave. A memorandum of law and three exhibits were attached.
{¶9} Exhibit A was the affidavit of John Myles. He said he was using drugs during
the time in his life when he was shot. He relayed the following information about the
shooting: he thought he recognized a friend when he was walking on South Avenue; he
asked the man for a lighter, but the man pulled out a gun and started shooting; he did not
lose consciousness; the shooter was 6’1” to 6’3” wearing a hoodie with a dark complexion;

Case No. 22 MA 0096
 –4–

he knew Appellant his whole life and thought of him as his cousin; and the shooter was
lighter and taller than Appellant. In the affidavit, Myles said he told the detective Appellant
was like family and was not the shooter while refusing to name Appellant as the shooter
from a photo line-up. The affiant then said, “it would be untrue for anyone to say I told
them Melvin Johnson shot me or was in any way responsible.” His signature was
notarized on September 17, 2021.
{¶10} Exhibit B was the affidavit of Morris Perry, which stated: “I never
participated nor had direct knowledge of a criminal enterprise comprised of Vincent
Moorer, Melvin Johnson, [and four other people]. The only reason I testified to this
previously was due to the combination of pressure and coercion of local law enforcement
and incentive of no prison time in an unrelated case.” (The next line claimed a lack of
knowledge about murder victims in a case not involving Appellant.) Perry’s signature was
not on the page with these statements but was on a separate page; the signature was
notarized on January 28, 2021.
{¶11} Exhibit C was a statement signed by Appellant on June 7, 2022; he calls it
a sworn statement, but it was not notarized. He made the following claims: he was in
federal prison out-of-state; his mom obtained a copy of Perry’s affidavit after Perry sent it
to a third party in the spring of 2021; Myles contacted Appellant’s father in September
2021 about making a statement; and Appellant’s father hired a private investigator to
secure an affidavit from Myles. Appellant’s statement concluded the information in the
affidavits was exculpatory, was not available at the time of trial, could not have been
discovered with reasonable diligence, and was not provided to him until more than 120
days after the verdict.
{¶12} Appellant’s motion for leave concluded he was unavoidably prevented from
discovering the information in the affidavits within 120 days of the conviction because the
individuals did not come forward with the information until recently and he was unable to
contact witnesses as he was continuously incarcerated. It was then argued the
information was newly discovered evidence as it could not have been discovered at trial
with reasonable diligence and was material, not merely cumulative, and outcome-
determinative.
{¶13} The state’s opposition argued a movant cannot merely allege he was
unavoidably prevented from discovering the information based on the date of the

Case No. 22 MA 0096
 –5–

affidavits or his incarceration. It was emphasized the two affiants made no reference to
Appellant’s delay. The state pointed to Appellant’s knowledge of Myles and the
opportunity to speak to Myles (his lifelong family-like friend) before trial or secure his
appearance at trial. The state also pointed to Appellant’s pretrial allegations about Perry
recanting, noting he was pressured by organization members; it was noted a related audio
recording was provided to the state by the defense in discovery. The state alternatively
argued the evidence was not newly discovered, could have been discovered with
reasonable diligence, was not credible, and added nothing or merely contradicted former
evidence in a generalized way.
{¶14} On July 22, 2022, the court overruled Appellant’s motion. The within appeal
followed where Appellant remains represented by counsel.
GENERAL NEW TRIAL LAW
{¶15} The trial court can grant a new trial on the defendant’s motion if his
substantial rights were materially affected when “new evidence material to the defense is
discovered which the defendant could not with reasonable diligence have discovered and
produced at the trial.” Crim.R. 33(A)(6). “When a motion for a new trial is made upon the
ground of newly discovered evidence, the defendant must produce at the hearing on the
motion, in support thereof, the affidavits of the witnesses by whom such evidence is
expected to be given * * *.” Id.
{¶16} Nevertheless, the rule does not mandate an oral, evidentiary hearing on
every motion, and the “trial court holds the discretion to decide whether a Crim.R. 33
hearing should be held.” State v. Baer, 7th Dist. Harrison No. 16 HA 0015, 2017-Ohio-
7759, ¶ 12. Likewise, the denial of a motion for new trial is reviewed under the abuse of
discretion standard of review. State v. Hawkins, 66 Ohio St.3d 339, 350, 612 N.E.2d
1227 (1993). A Crim.R. 33(A)(6) motion for a new trial cannot be granted unless the
defendant shows the new evidence: (1) discloses a strong probability the result will
change if a new trial is granted; (2) has been discovered since trial; (3) could not have
been discovered before trial in the exercise of due diligence; (4) is material; (5) is not
merely cumulative to prior evidence; and (6) does not merely impeach or contradict prior
evidence. Id., quoting State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus.
{¶17} There are time requirements for new trial motions. “Motions for new trial on
account of newly discovered evidence shall be filed within one hundred twenty days after

Case No. 22 MA 0096
 –6–

the day upon which the verdict was rendered, or the decision of the court where trial by
jury has been waived.” Crim.R. 33(B). However, “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.” Id. The trial court's refusal to grant
leave to file an untimely motion for a new trial is also reviewed for an abuse of discretion.
State v. McNeal, __ Ohio St.3d __, 2022-Ohio-2703, __ N.E.3d __, ¶13, 24.
{¶18} If the court does not grant leave, then the motion for new trial need not be
addressed (and cannot be addressed if not yet filed). “Leave must be granted before the
merits are reached.” State v. Lordi, 149 Ohio App.3d 627, 2002-Ohio-5517, 778 N.E.2d
605, ¶ 25 (7th Dist.). The rule anticipates a two-step procedure, but a motion for new trial
is sometimes filed simultaneously with the motion for leave due to the short seven-day
deadline to file if leave is granted.
{¶19} The defendant’s burden on a motion for leave to file a new trial motion is
more than a preponderance of the evidence. State v. Schiebel, 55 Ohio St.3d 71, 74,
564 N.E.2d 54 (1990). To meet the clear and convincing standard, the evidence must
“produce in the mind of the trier of facts a firm belief or conviction” that he was unavoidably
prevented from discovering the facts sought to be established. Id. The parties agree a
defendant “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 for a 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.” Lordi, 149 Ohio App.3d 627
at ¶ 26, 29, quoting State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th
Dist.1984).
ASSIGNMENTS OF ERROR
{¶20} Appellant sets forth two related assignments of error:
“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN SUMMARILY
DENYING APPELLANT’S MOTION FOR LEAVE TO FILE A MOTION FOR A NEW
TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE, WITHOUT A HEARING.”
“THE TRIAL COURT ERRED IN SUMMARILY DENYING APPELLANT’S
MOTION WITHOUT MAKING ANY FACTUAL FINDINGS OR CONCLUSIONS OF LAW

Case No. 22 MA 0096
 –7–

OR HOLDING A HEARING, THEREBY ABUSING ITS DISCRETION IN DENYING
APPELLANT’S MOTION FOR LEAVE TO FILE A MOTION FOR A NEW TRIAL.”
{¶21} The main difference in the text of the assignments is the reference to
findings of fact and conclusions of law. The plain language of Crim.R. 33 does not require
the court to issue findings of fact and conclusions of law when denying a motion
thereunder. See State v. Harrison, 2d Dist. Montgomery No. 28652, 2022-Ohio-407, ¶
55; State v. Girts, 121 Ohio App.3d 539, 565, 700 N.E.2d 395 (8th Dist.1997) (even the
comparable civil rule, Civ.R. 59(A), only instructs a court to specify the grounds in writing
if the court grants a new trial). Compare R.C. 2953.21(D),(H) (specifically requiring
findings of fact and conclusions of law in dismissing or denying a post-conviction relief
petition). The Supreme Court therefore held a trial judge “had no duty to issue findings
of fact and conclusions of law when he denied [the defendant’s] Crim.R. 33 motion for a
new trial.” State ex rel. Collins v. Pokorny, 86 Ohio St.3d 70, 711 N.E.2d 683 (1999) (new
trial motion filed five years after trial), citing Girts, 121 Ohio App.3d at 565. Likewise, “a
trial court is not required to issue findings of fact and conclusions of law when denying
without a hearing a motion for leave to file a delayed motion for new trial.” State v.
Briscoe, 8th Dist. Cuyahoga No. 110490, 2021-Ohio-4317, ¶ 27.2
{¶22} The common thread of both assignments of error is the contention the trial
court erred in failing to grant Appellant’s motion for leave to file a motion for a new trial or
in failing to hold a hearing on the motion for leave. Appellant points out there is case law
holding: “A defendant is entitled to a hearing on his motion for leave if he submits
‘documents that on their face support his claim that he was unavoidably prevented from
timely discovering the evidence’ at issue.” State v. Blalock, 8th Dist. Cuyahoga No.
100194, 2014-Ohio-934, ¶ 44, quoting State v. Brown, 8th Dist. Cuyahoga No. 95253,
2011-Ohio-1080, ¶ 14, quoting State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-

2 There is no issue concerning the applicability of Civ.R. 52 because Appellant did not file a motion for
findings of fact and conclusions of law. See Civ.R. 52 (“When questions of fact are tried by the court without
a jury, judgment may be general for the prevailing party unless one of the parties in writing requests
otherwise before “[certain deadlines]”).

Case No. 22 MA 0096
 –8–

1181, 869 N.E.2d 77, ¶ 19 (2d Dist.). In other words, to warrant a hearing, those
documents must entitle the movant to leave if they are taken as true. See id.
{¶23} Still, the Eighth District recently held a defendant is not entitled to a hearing
before his motion for leave is denied where he claims the state failed to produce a
statement in discovery but there are no facts in the record supporting this claim. Briscoe,
8th Dist. No. 110490 at ¶ 26. As set forth in the prior section, Crim.R. 33 mentions a
hearing on a motion for new trial, but the hearing is still considered discretionary. The
rule does not mention a hearing on a motion for leave. We also note Appellant did not
request such a hearing.
{¶24} “One way that a defendant may satisfy the ‘unavoidably prevented’
requirement contained in Crim.R. 33(B) is by establishing that the prosecution
suppressed the evidence on which the defendant would rely when seeking a new trial.”
McNeal, __ Ohio St.3d __, 2022-Ohio-2703 at ¶ 2. In McNeal, the defendant’s motion for
leave was accompanied by the affidavit of the defendant’s trial counsel establishing a
Brady violation by the state’s failure to disclose in discovery the victim’s blood alcohol
test, which tended to disprove an element of rape and impeach the victim's testimony
about her ability to resist or consent being substantially impaired. See Brady v. Maryland,
373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (duty to disclose favorable and
material evidence) and Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144
L.Ed.2d 286 (1999) (same rule applicable to impeaching evidence). The Supreme Court
concluded the defendant’s motion for leave to file a new trial motion should have been
granted because his counsel’s affidavit set forth a prima facie case that he was
unavoidably prevented from timely moving for a new trial due to the prosecution’s failure
to make required disclosures and the state failed to respond to the motion for leave.
McNeal, __ Ohio St.3d __, 2022-Ohio-2703. The Court remanded with instructions to
grant leave to file a motion for a new trial, without remanding for a hearing on the motion
for leave. Id. at ¶ 27 (noting the trial court prematurely made rulings relevant to an unfiled
new trial motion).
{¶25} Here, counsel did not file an affidavit, such as to assert a failure to disclose
by the prosecution and to assure the court he reviewed the discovery, or cite to the record
in support. Additionally, although a failure to disclose is claimed on appeal, the motion
for leave did not raise an allegation that the state failed to disclose information. Moreover,

Case No. 22 MA 0096
 –9–

the state responded to the motion for leave in this case, and the record does not support
various contentions made or implied by Appellant’s motion for leave.
{¶26} The affidavit of Myles attached to Appellant’s motion for leave said Myles
knew Appellant his whole life and considered him family (calling Appellant a cousin and
calling his father an uncle). He did not refer to any reason for a delayed statement. As
the state pointed out in responding to Appellant’s motion for leave, Myles (the shooting
victim) did not testify at trial and his recorded utterances at the shooting scene were
disclosed to the defense before trial and played for the court trial. He said he did not
know who shot him when asked multiple times while awaiting the ambulance. Myles also
said this at the line-up interview with the detective, which was recorded and disclosed to
the defense in discovery.
{¶27} Moreover, a pro se motion filed by Appellant months before trial
emphasized that Myles told the detective he would not believe Appellant shot him. The
state’s response to the motion for leave pointed out Appellant did not attempt to secure
the appearance of Myles at trial where information could have been directly elicited from
him. Instead, trial counsel utilized the detective on cross-examination to show Myles did
not identify Appellant as the shooter. (Tr. 637-638). It was known Myles was not
asserting Appellant shot him. The identification of Appellant as the shooter came from
Morris Perry.
{¶28} As for Perry, the assertion on appeal that the state failed to disclose Perry’s
plea agreement is contradicted by the record. At a February 21, 2017 pretrial, the court
was informed Perry was offered a deal, with the state recommending community control
in exchange for his guilty plea in his drug case and for his continued cooperation in this
case. The prosecutor pointed out the defense had already been provided a copy of the
plea agreement. It was also noted that Appellant watched Perry’s video statement with
counsel. Perry subsequently testified at trial in accordance with his video statement, and
his plea deal was discussed during testimony. (Tr. 526). Defense cross-examined Perry
on his plea and on his various claims.
{¶29} Perry’s affidavit attached to Appellant’s motion for leave claimed he had no
direct knowledge of a criminal enterprise involving Appellant, Moorer, and others and
claimed he testified differently because he was pressured by law enforcement and
provided an “incentive of no prison time in an unrelated case.” This is not a recantation

Case No. 22 MA 0096
 – 10 –

of the testimony on Appellant shooting Myles (or why); however, Appellant believes the
affidavit would affect his conviction of engaging in a pattern of corrupt activity. Perry
merely provided a generalized statement denying “direct knowledge” of a “criminal
enterprise,” rather than a specific recantation of pertinent facts. Appellant would know
whether he was a part of a drug ring at the time he listened to Perry’s statement with his
attorney before trial. It was thus the fact of Perry potentially being willing to say something
different that Appellant alleges he was unavoidably prevented from discovering within 120
days of trial.
{¶30} However, as the state reminded the trial court in responding to Appellant’s
motion for leave, Appellant’s awareness of Perry’s inconsistencies, including an alleged
recantation was already on the record. A year before trial, the state filed a motion in
limine informing the court the defense provided an audio recording in discovery wherein
Perry (who was secretly recorded) told an organization member he lied in his statement
to police and would not be cooperating. The state argued Perry was under duress and in
fear. In addition, months before trial, Appellant filed a pro se motion to strike Perry’s
testimony, arguing, in part, any testimony consistent with Perry’s statement to police
would be perjury and claiming the audio should be considered a recantation; the motion
was later renewed by counsel.
{¶31} Also, Perry’s affidavit makes no reference to the timing of his newest claim
that he lacked direct knowledge of a criminal enterprise. The burden is on the petitioner
to show by clear and convincing proof how he was unavoidably prevented from timely
discovering the evidence. Schiebel, 55 Ohio St.3d at 74. Appellant mentions his own
incarceration in claiming he was unavoidably prevented from discovering the information
known by the affiants. However, the mere fact of incarceration does not show a movant
was unavoidably prevented from learning facts; even an incarcerated movant must
explain “how he has been prevented from contacting the affiant.” State v. Moore, 7th
Dist. Mahoning No. 13 MA 9, 2014-Ohio-358, ¶ 24.
{¶32} Appellant also relies on the date of the affidavits and his receipt of them.
However, “an affidavit signed outside the rule's timeframe does not necessarily indicate
that the petitioner was unavoidably prevented from obtaining the evidence or that it is
clear and convincing proof.” State v. Franklin, 7th Dist. Mahoning No. 09 MA 96, 2010-
Ohio-4317, ¶ 19. It is “unreasonable for [the movant] not to have attempted to contact

Case No. 22 MA 0096
 – 11 –

[the affiant] sooner” where he knew about the allegedly false testimony he heard at his
own trial. Moore, 7th Dist. No. 13 MA 9 at ¶ 24. Appellant said his mother got a copy of
Perry’s affidavit from an unnamed third party and Myles contacted his father so his father
hired an investigator to secure an affidavit. Appellant essentially claims he was
unavoidably prevented from discovering the information because it was not bestowed
upon him earlier. However, “[t]he 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.” State v. Fortson, 8th Dist. Cuyahoga No.
82545, 2003-Ohio-5387, ¶ 11. The court is “not required to make suppositions about the
reasons for the delay.” Id. at ¶ 12 (where one affidavit provided no reason for the delay
in recanting testimony and other provided unconvincing reason).
{¶33} Under the Eighth District case relied on by Appellant, a hearing on the
motion for leave would not be required, as the documents do not facially support a claim
that he was unavoidably prevented from timely discovering the evidence upon which his
motion for new trial could rely. See Blalock, 8th Dist. No. 100194 at ¶ 44. The trial court
did not abuse its discretion in refusing to grant leave to file the new trial motion and thus
denying the untimely new trial motion filed therewith. Appellant’s assignments of error
are overruled.
{¶34} As a final observation, we also note that even if leave were granted and the
merits of the submitted new trial motion were reviewed, there would be no abuse of
discretion by the trial court in denying the motion Appellant decided to submit with his
motion for leave. We rely on our various observations set forth above as to assertions on
knowledge, ability to know, and timing. The test for newly discovered evidence for a new
trial motion is not merely “newly available” evidence. State v. Thomas, 7th Dist. Mahoning
No. 18 MA 0132, 2020-Ohio-3637, ¶ 58 (where the information in the affidavit is about
the defendant’s participation, the defendant had prior knowledge of the information).
Appellant was convicted at a bench trial by the same judge who was ruling on the motion.
The judge heard the testimony by Perry at trial as compared to the generalized affidavit
(that did not mention the shooting or any other facts). The judge was forced to seal parts
of the record and presided through pretrial issues with a fearful witness being secretly

Case No. 22 MA 0096
 – 12 –

recorded while claiming he would be recanting. At trial, Perry even disclosed he
previously attempted to pay a victim to sign a false affidavit for Moorer.
{¶35} Notably, the sixth factor for granting a new trial (in the case Appellant cites)
states, the evidence must “not merely impeach or contradict the former evidence.” See
Petro, 148 Ohio St. 505 at syllabus. Appellant omitted the italicized portion from his
analysis below. Moreover, the trial court could reasonably conclude the affidavit did not
disclose a strong probability the result would be different. Perry’s prior testimony would
be admissible in any new trial. See Evid.R. 801(D). The trial court could likewise
reasonably conclude Perry’s affidavit did not provide substantial grounds for relief
requiring an evidentiary hearing on a motion for new trial (if leave had been granted).
{¶36} As for the affidavit of Myles, his newest statement was merely cumulative.
Appellant’s motion did not acknowledge that Myles, who was the shooting victim, did not
appear at trial to testify. The motion provided no explanation as to why Appellant did not
secure his presence at trial or attempt a pre-trial interview of this life-long family-like friend.
At the bench trial, the judge heard the defense utilize the detective to demonstrate Myles
did not identify Appellant as the shooter. There was no indication the information from
Myles was not known (or could not have been discovered before trial in the exercise of
due diligence). See id. Accordingly, any alternative argument within Appellant’s brief on
entitlement to a new trial is overruled (even if leave to file a new trial motion should have
granted).
{¶37} For the foregoing reasons, the trial court’s judgment is affirmed.

Waite, J., concurs.

D’Apolito, P. J., concurs.

Case No. 22 MA 0096
[Cite as State v. Johnson, 2023-Ohio-918.]

For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed against
the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.