State v. Hill

[Cite as State v. Hill, 2023-Ohio-1954.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :
No. 22AP-576
v. : (C.P.C. No. 18CR-5181)

Mark A. Hill, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on June 13, 2023

On brief: G. Gary Tyack, Prosecuting Attorney, and
Kimberly M. Bond, for appellee.

On brief: Mark A. Hill, pro se.

APPEAL from the Franklin County Court of Common Pleas
LELAND, J.
{¶ 1} This is an appeal by defendant-appellant, Mark A. Hill, from a judgment of
the Franklin County Court of Common Pleas denying his motion for leave to file a motion
for new trial, his motion for new trial, and motion for public records.
I. Facts and Procedural History
{¶ 2} On October 18, 2018, appellant was indicted on one count of aggravated
burglary, in violation of R.C. 2911.11, and one count of felonious assault, in violation of R.C.
2903.11. Each count also carried a repeat violent offender (“RVO”) specification, pursuant
to R.C. 2941.149(A).
{¶ 3} The matter came for trial before a jury beginning on August 20, 2019. The
relevant facts of the case are summarized in this court’s prior decisions in State v. Hill, 10th
Dist. No. 19AP-711, 2021-Ohio-132 (“Hill I”), and State v. Hill, 10th Dist. No. 21AP-16,
2021-Ohio-3899 (“Hill II”).
No. 22AP-576 2

{¶ 4} In Hill II, this court provided the following summary of the facts regarding
the incident. The charges of aggravated burglary and felonious assault arose out of events
on August 25, 2018 involving Martie Jacobs, age 53, who “resided in the home of Rita
Hamm, the grandmother of appellant’s girlfriend, Brittany Hamm.” Hill II at ¶ 2. That
evening, “an intoxicated Jacobs got into an argument with Brittany.” Id. According to the
testimony of Jacobs, “Brittany threatened him with a knife; he wrestled the knife from her,
threw her on the floor, and then fell on top of her.” Id. At that time, “Rita intervened and
pushed Jacobs off Brittany.” Id. Following the incident, Jacobs, “who suffers from
debilitating arthritis and degenerative disc disease,” went to his bedroom, “shut the door,
took his medications, and went to bed.” Id.
{¶ 5} Later, Jacobs “woke from a light sleep to find appellant standing in his
bedroom holding a sledgehammer.” Id. at ¶ 3. Appellant then “hit Jacobs with the
sledgehammer in the face near his left eye” and, “[a]fter Jacobs fell to the floor, appellant
struck him with the sledgehammer on the other side of his face.” Id.
{¶ 6} Appellant and Brittany left the house, and “Rita discovered Jacobs on the
bathroom floor covered in blood.” Id. at ¶ 4. Jacobs was transported to a hospital “where
he underwent a 12-hour surgery to reconstruct one eye socket and his jaw”; he
“subsequently underwent extensive rehabilitation as well as multiple follow-up surgeries.”
Id. The medical records of Jacobs, “including an x-ray, demonstrated significant trauma
and damage to his skull,” and “a portion of the left side of his face is permanently
disfigured.” Id.
{¶ 7} Appellant testified on his own behalf and stated that “Brittany called him
after her argument with Jacobs and reported that Jacobs had punched her in the eye.” Id.
at ¶ 5. Appellant then “drove to the house,” and “Brittany was crying when he arrived.” Id.
Appellant testified he “entered Jacobs’ bedroom, confronted him about assaulting Brittany,
and warned him to stay away from her.” Id. According to appellant, “Jacobs took a swing
at [him],” but appellant “dodged the blow and hit Jacobs four times using only his fist; he
denied striking Jacobs with a sledgehammer.” Id.
{¶ 8} Following deliberations, the jury returned verdicts finding appellant guilty of
felonious assault and not guilty of aggravated burglary. The trial court separately found
appellant guilty of the RVO specification. By judgment entry filed September 20, 2019, the
trial court sentenced appellant to an aggregate 12-year term of incarceration.
No. 22AP-576 3

{¶ 9} Appellant filed a direct appeal of his conviction. While the appeal was
pending, appellant filed a pro se petition for postconviction relief. By entry filed
December 17, 2020, the trial court denied appellant’s petition for postconviction relief, and
this court affirmed the denial of postconviction relief in Hill II.
{¶ 10} On January 21, 2021, this court rendered its decision on appellant’s direct
appeal in Hill I, affirming the judgment of the trial court. In that decision, this court
rejected appellant’s arguments that the trial court erred in denying his motion for acquittal
and that his conviction for felonious assault was against the manifest weight of the
evidence. Appellant filed a pro se application for reconsideration and for en banc
consideration, which this court denied. State v. Hill, 10th Dist. No. 19AP-711 (May 13, 2021)
(memorandum decision).
{¶ 11} On April 8, 2021, appellant filed a pro se application to reopen his appeal
pursuant to App.R. 26(B). By memorandum decision, this court denied appellant's
application for reopening. State v. Hill, 10th Dist. No. 19AP-711 (Sept. 2, 2021)
(memorandum decision).
{¶ 12} On March 11, 2022, appellant filed a motion for leave to file a motion for new
trial pursuant to Crim.R. 33(A)(2) and (6). Attached to his motion for leave, appellant
provided his own affidavit and several exhibits. On the same date he filed his motion for
leave, appellant filed a Crim.R. 33 motion for new trial “based upon newly discovered
Brady [v. Maryland, 373 U.S. 83 (1963)] material evidence.” On March 23, 2022, appellant
filed a request for an order granting access to obtain public records from the Columbus
Division of Police. On April 11, 2022, plaintiff-appellee, State of Ohio, filed a memorandum
in opposition to appellant’s motion for leave to file a motion for new trial. On August 19,
2022, the trial court filed an entry denying appellant’s motion for leave to file a motion for
new trial, and also denying the motion for new trial and motion for public records.
II. Assignments of Error
{¶ 13} On appeal, appellant, pro se, sets forth the following three assignments of
error for our review:
[I.] THE TRIAL COURT ABUSED ITS DISCRETION AND
DENIED APPELLANT OF DUE PROCESS AND EQUAL
PROTECTION OF THE LAWS WHEN DENYING HIS
MOTION FOR LEAVE TO FILE A CRIMINAL RULE 33
MOTION FOR NEW TRIAL, WITHOUT AN EVIDENTIARY
HEARING, BASED UPON THE PRIMA FACIE SHOWING
No. 22AP-576 4

OF NEWLY DISCOVERED EVIDENCE, CONTRARY TO
LAW.

[II.] THE TRIAL COURT ABUSED ITS DISCRETION AND
DEPRIVED APPELLANT OF DUE PROCESS AND EQUAL
PROTECTION OF THE LAWS WHEN DENYING HIS
MOTION FOR LEAVE TO FILE A CRIMINAL RULE 33
MOTION FOR NEW TRIAL BASED UPON THE PRIMA
FACIE SHOWING OF A BRADY MATERIAL EVIDENCE
VIOLATION, WITHOUT AN EVIDENTIARY HEARING,
CONTRARY TO CLEARLY ESTABLISHED
CONSTITUTIONAL LAW.

[III.] THE TRIAL COURT ABUSED ITS DISCRETION AND
DENIED APPELLANT DUE PROCESS AND EQUAL
PROTECTION OF THE LAWS WHEN DENYING HIS
REQUEST FOR THE RELEASE OF PUBLIC RECORDS.

III. Analysis
{¶ 14} Appellant’s first and second 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 without an evidentiary
hearing based on his claims of newly discovered evidence and a Brady v. Maryland, 373
U.S. 83 (1963) violation.
{¶ 15} 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, 169 Ohio St.3d 47, 2022-
Ohio-2703, ¶ 13. Similarly, 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
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 at ¶ 54, citing State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-
1181, ¶ 7 (2d Dist.).
{¶ 16} In the present case, appellant sought leave to file a motion for new trial based
on Crim.R. 33(A)(2), prosecutorial misconduct, and Crim.R. 33(A)(6), newly discovered
evidence. Under Crim.R. 33(A)(2), a trial court may grant a defendant a new trial based on
No. 22AP-576 5

“[m]isconduct of the * * * prosecuting attorney.” A motion for a new trial under Crim.R.
33(A)(2) “must be filed within 14 days after the verdict was rendered, unless clear and
convincing proof shows the defendant was unavoidably prevented from filing his motion
for new trial within that 14-day period.” State v. G.F., 10th Dist. No. 18AP-201, 2019-Ohio-
3673, ¶ 18, citing Crim.R. 33(B).
{¶ 17} Under Crim.R. 33(A)(6), a trial court may grant a defendant a new trial
“[w]hen new evidence material to the defense is discovered which the defendant could not
with reasonable diligence have discovered and produced at the trial.” In general, “ ‘[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.’ ” State v. Holzapfel, 10th Dist. No. 10AP-17,
2010-Ohio-2856, ¶ 20, quoting State v. Love, 1st Dist. No. C-050131, 2006-Ohio-6158,
¶ 43, citing Campbell v. Am. Foreign S.S. Corp., 116 F.2d 926, 928 (2 Cir.1941).
{¶ 18} Pursuant to Crim.R. 33(B), “[a] motion for new trial based on newly
discovered evidence must be filed within 120 days after the jury verdict or the court’s
judgment.” G.F. at ¶ 20. A trial court, however, “may grant a motion for leave to file a
motion for new trial based on newly discovered evidence beyond the 120-day deadline in
certain circumstances.” Id. Specifically, 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.” McNeal at ¶ 16.
{¶ 19} A criminal 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. Dodson, 10th Dist. No. 22AP-388, 2023-Ohio-
701, ¶ 16, quoting State v. Lundy, 10th Dist. No. 19AP-505, 2020-Ohio-1585, ¶ 11. If a
defendant “makes that showing, the motion for a new trial must be filed within seven days
of the trial court’s order finding that the defendant was unavoidably prevented from
discovering the evidence within the time prescribed by Crim.R. 33(B).” McNeal at ¶ 16. A
criminal defendant “may satisfy the ‘unavoidably prevented’ requirement contained in
Crim.R. 33(B) by establishing that the prosecution suppressed the evidence on which the
defendant would rely in seeking a new trial.” Id. at ¶ 17, citing State v. Bethel, 167 Ohio
St.3d 362, 2022-Ohio-783, ¶ 25, 57 (“Bethel I”).
No. 22AP-576 6

{¶ 20} This court has noted “[i]t is not uncommon for defendants to file both the
motion for leave and the delayed motion for new trial at the same time.” State v. Bethel,
10th Dist. No. 19AP-324, 2020-Ohio-1343, ¶ 19 (“Bethel II”). When addressing “a request
for new trial more than 120 days after the initial judgment of conviction, * * * the court first
determines whether the defendant was unavoidably prevented from discovering the
evidence, and if so, it grants the motion for leave and addresses the new trial motion on its
merits.” Id. In order to “prevail on the merits, ‘the defendant must show that the newly
discovered evidence upon which the motion is based: (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.’ ” Id., quoting State v. Dixon, 10th Dist.
No. 18AP-108, 2018-Ohio-4841, ¶ 13, citing State v. Davis, 10th Dist. No. 03AP-1200,
2004-Ohio-6065, ¶ 7, and State v. Petro, 148 Ohio St. 505 (1947), paragraph one of the
syllabus.
{¶ 21} In his motion for leave to file a motion for new trial, appellant asserted he
“recently discovered that the prosecuting attorney, police and state witnesses have withheld
the existence and identity of one, and a probable second, eyewitness to the events occurring
on August 25, 2018, whom can provide testimony favorable to [appellant], evidence which
is material and exculpatory in nature.” (Appellant’s Mot. for Leave at 1.) More specifically,
appellant argued that “[o]n, or about, March 1, 2021,” while he was “reviewing the
transcripts of the jury trial proceedings held in this case,” he “discovered that Rita Hamm
had testified that Brittany had gone across the street and sat with a neighbor crying after
Jacobs punched her in the eye for refusing his sexual offer in August 2018.” (Appellant’s
Mot. for Leave at 7.) According to appellant, during “an April 2021 phone conversation,
[he] asked Brittany who the neighbor was that [Rita] had mentioned in her trial testimony,”
and Brittany “informed [appellant] that the neighbor’s name is Jennifer [Pell] and that she
was sitting out in front of her home and witnessed Jacobs proposition her for sex and then
punch her in the eye with his fist when she told him no.” (Appellant’s Mot. for Leave at 7.)
Appellant “then asked Brittany who Scott Crawford was that resided at the same address as
Jennifer and was told that they are a couple.” (Appellant’s Mot. for Leave at 7.)
No. 22AP-576 7

{¶ 22} Thus, the basis for appellant’s motion for leave was his claim the prosecuting
attorney and “state witnesses” had withheld the identity of one or two eyewitnesses to the
events on August 25, 2018; specifically, that two neighbors, Pell and Crawford, who lived
across the street may have witnessed an altercation between Jacobs and Brittany earlier
that evening, prior to the time appellant arrived and entered Rita’s residence to confront
Jacobs in his bedroom.
{¶ 23} In addressing appellant’s motion for leave, the trial court initially noted that
appellant’s contention he was “reviewing trial transcripts from August 2019 ‘and discovered
that Rita Hamm had testified’ to certain things,” including, according to appellant,
testimony that Brittany had gone across the street and sat with a neighbor after Jacobs
punched her in the eye, “is not newly discovered evidence,” as appellant “was present at his
trial and heard all the witness testimony by Ms. Hamm and others.” (Aug. 19, 2022
Decision at 3.) The trial court further noted that Crawford, one of the two neighbors who
lived across the street and who, appellant contends, resided with Pell, was interviewed in
2018 by a defense investigator. Crawford told the investigator “ ‘[Jacobs] is a nice guy and
would never do something like that. [Crawford] believes Brittany’s accusations are
fabricated and were made entirely to cause a stir.’ ” (Aug. 19, 2022 Decision at 4.)
{¶ 24} The trial court also addressed the fact that Brittany, who appellant contends
told him in 2021 the name of the second neighbor, Pell, who resided with Crawford in the
house across the street, was also the subject of a pre-trial interview “by an investigator for
[appellant’s] attorney.” (Aug. 19, 2022 Decision at 3.) The court observed that Brittany
was viewed by both sides as “an unreliable witness if called at trial” based on a history of
drug use, and that “[t]his also explains the reason neither trial counsel chose to seek her
arrest when she ignored a trial subpoena.” (Aug. 19, 2022 Decision at 3.)
{¶ 25} The trial court concluded “[t]here is * * * nothing here that has not already
been addressed,” as “[i]nformation about Brittany and Mr. Crawford was available to both
sides,” and there was “no suggestion in the record” that “Crawford’s live-in partner,” Pell,
“would have testified favorably to [appellant], or held an unfavorable view of Jacobs.”
(Aug. 19, 2022 Decision at 4.)
{¶ 26} Upon review, we agree with the trial court’s determination that the evidence
at issue is not newly discovered within the meaning of Crim.R. 33(A)(6). At trial, Rita
provided testimony that Brittany, after an initial argument with Jacobs, “went across the
No. 22AP-576 8

street” and “[sat] down” with a neighbor. (Aug. 20, 2019 Tr. Vol. I at 46.) As noted by the
trial court, appellant’s contention that he “discovered” through his review of the trial
transcripts what Rita testified to regarding Brittany’s interaction with neighbors across the
street is not newly discovered evidence as he was present at trial and heard the testimony
at issue, i.e., the information was known at that time, not discovered after trial. See, e.g.,
State v. Dunkle, 10th Dist. No. 19AP-820, 2021-Ohio-1035, ¶ 19 (noting this court has “cited
federal case law establishing that ‘ “if a defendant is aware of the evidence at the time of
trial, then it is not newly discovered evidence under Rule 33” ’ ”) (Internal citations
omitted.); State v. Craig, 8th Dist. No. 97478, 2012-Ohio-1749, ¶ 12 (“evidence appellant
claims is newly discovered was either known to him at the time of trial or could have been
found”).
{¶ 27} Appellant contends he first learned of the identity of these two potential
eyewitnesses in 2021 from Brittany, who appellant had a relationship with at the time of
the events, and who was with appellant when he entered Rita’s house that evening to
confront Jacobs. As noted by the trial court, however, the record indicates a defense
investigator interviewed Brittany and one of the two alleged neighbor-eyewitnesses prior
to trial. Specifically, in December 2018, a defense investigator interviewed Crawford, who
resided across the street in the same house with the other alleged eyewitness neighbor, Pell.
As also observed by the trial court, the record indicates Brittany was not only interviewed
by a defense investigator but was also the subject of a subpoena and failed to appear for
trial. We note appellant did not submit an affidavit from Brittany in support of his motion
for leave, and he has failed to show that any purported new information Brittany provided
to him in 2021 regarding her interaction with neighbors at the time of the events at issue
could not have been discovered prior to trial. Here, appellant has not presented “newly
discovered” evidence indicating his counsel was unaware of the neighbors across the street,
including one who was interviewed by a defense investigator. The fact appellant himself
may not have known the identity of one of the neighbors does not undermine the trial
court’s determination that the identity of these potential eyewitnesses was either known to
the defense or could have been discovered prior to trial, and appellant has failed to
demonstrate, by clear and convincing evidence, how he was unavoidably prevented from
discovering the “new” evidence he is relying on to support his motion.
No. 22AP-576 9

{¶ 28} The trial court also determined, in ruling on the motion for leave, there was
“no colorable basis to claim a Brady violation.” (Aug. 19, 2022 Decision at 5.) Specifically,
the trial court held in part:
First, [appellant’s] affidavit does not identify any withheld
information about [Pell], the neighbor. [Appellant] says he
was not told about her by his lawyers, and that none of the
discovery contained a witness statement from her. * * * That
does not establish any basis to conclude the information was
withheld. He has filed material indicating that a defense
investigator interviewed both Rita Hamm and one of the two
neighbors living together who are now claimed to be able to
talk about Mr. Jacobs interaction with Brittany. The neighbor
who was interviewed lived in the same home as [Pell]. Failing
to disclose evidence known to the defense does not constitute
a Brady violation.

(Aug. 19, 2022 Decision at 5.)
{¶ 29} Alternatively, the trial court concluded the allegedly withheld information
was not material, holding in part:
One reason this information is not material is that merely
impeaching a witness – here Mr. Jacobs about his interaction
with Brittany Hamm earlier in the day and outside the
presence of [appellant] assuming for the moment that the
neighbors felt that it was inappropriate or assaultive behavior
as denied by Jacobs – is not directly relevant to whether
[appellant] criminally assaulted Jacobs hours later. * * *
Seeking more impeachment of the victim is not a legitimate
basis for a new trial under Ohio law.

(Aug. 19, 2022 Decision at 5-6.)
{¶ 30} Finally, the trial court noted, appellant’s trial strategy “did not hinge only on
the testimony of * * * Jacobs,” as Rita “was present when the assault occurred” and
appellant “himself testified and did not deny hitting Jacobs.” (Aug. 19, 2022 Decision at 6.)
Further noting that Jacobs provided his own testimony, the court observed that the medical
evidence submitted “circumstantially confirmed the other evidence that a violent,
unprovoked assault occurred just as Jacobs claimed.” (Aug. 19, 2022 Decision at 6.) Thus,
the court concluded, while appellant may have believed he was “defending the honor of
Brittany, or responding to an earlier assault on her, the jury concluded that neither reason
justified him rushing into Jacobs[’] bedroom late at night and brutally assaulting Jacobs
[as] he was barely awake.” (Aug. 19, 2022 Decision at 6.)
No. 22AP-576 10

{¶ 31} In Brady, “the Supreme Court of the United States recognized that the
prosecution has an affirmative duty to disclose evidence that is favorable to the accused and
material to the accused’s guilt or punishment.” McNeal at ¶ 19, citing Brady at 87. In order
to establish a Brady violation, a defendant must show: “(1) that the prosecution withheld
evidence, (2) that the defense was not aware of the evidence, and (3) that the evidence
withheld was material.” State v. Holloman, 10th Dist. No. 06AP-608, 2006-Ohio-6789,
¶ 12, citing State v. Johnston, 39 Ohio St.3d 48 (1988), paragraph four of the syllabus.
{¶ 32} On review, the affidavit and materials submitted by appellant did not show
he was unavoidably prevented from discovery of the facts on which he relies regarding a
potential Brady violation. As found by the trial court, appellant has failed to identify any
documents, including “any withheld information about [Pell],” not provided during
discovery which might have contained exculpatory materials. (Aug. 19, 2022 Decision at
5.) Further, as previously discussed, the identity of Crawford was known to the defense and
he could have been called as a witness; similarly, Brittany, who purportedly knew and later
informed appellant of the identity of the female neighbor, was a potential witness and was
subpoenaed before trial. Under Ohio law, “there can be no Brady violation where the
defendant was aware of the evidence allegedly withheld.” State v. Hawk, 10th Dist. No.
21AP-265, 2021-Ohio-4533, ¶ 20. Here, the identity of Crawford was not suppressed by the
state, nor do the materials submitted in support of the motion for leave suggest the state
withheld information from appellant regarding potential favorable testimony by Pell.
Accordingly, because appellant has failed to show he was unavoidably prevented from
discovery of the facts on which he relies in support of an alleged Brady violation, or that
the prosecution suppressed this evidence, the trial court did not err in denying appellant’s
motion for leave to file a new trial motion on grounds of prosecutorial misconduct.
{¶ 33} Finally, even assuming appellant had established he was unavoidably
prevented from the discovery of the “new” information he relies on, or that the state
suppressed the identity of the neighbor(s), we would agree with the trial court’s further
determination that appellant failed to establish the purported evidence was material under
the third element of Brady. Under that element, evidence is material “ ‘ “if there is
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” ’ ” Bethel I at ¶ 19, quoting Kyles v. Whitley, 514
U.S. 419, 433 (1995), quoting United States v. Bagley, 473 U.S. 667, 682 (1985). In this
No. 22AP-576 11

respect, “[a] defendant establishes a Brady violation ‘by showing that the favorable [but
suppressed] evidence could reasonably be taken to put the whole case in such a different
light as to undermine confidence in the verdict.’ ” McNeal at ¶ 21, quoting Kyles at 434.
{¶ 34} As noted by the trial court, even accepting the claim one or possibly two
neighbors across the street observed Jacobs’ behavior “earlier in the day” involving his
interaction with Brittany, neither of these individuals “witness[ed] the criminal assault
perpetrated by [appellant] some hours later” inside Rita’s residence. (Aug. 19, 2022
Decision at 5; 3.) Moreover, the alleged exculpatory evidence would have been cumulative
to the testimony of Rita, who testified as to the earlier altercation between Brittany and
Jacobs and who also testified as to the events later that evening when appellant and Brittany
entered her residence, at which time appellant went into Jacobs’ bedroom and repeatedly
struck Jacobs, causing severe and permanent injuries. See State v. Buehner, 8th Dist. No.
109699, 2021-Ohio-4435, ¶ 42, quoting State v. Bonilla, 2d Dist. No. 2008 CA 68, 2009-
Ohio-4784, ¶ 26 (“There is * * * no Brady violation ‘if the evidence that was allegedly
withheld is merely cumulative to evidence presented at trial.’ ”). In sum, appellant has
failed to show a reasonable probability that the result of the trial would have been different
had the purportedly withheld information been disclosed.
{¶ 35} Upon review, the documentation submitted by appellant does not, on its face,
demonstrate by clear and convincing evidence that he was unavoidably prevented from
discovering the evidence on which he seeks to base his motion for leave to file a motion for
new trial or from timely filing a motion for new trial based on prosecutorial misconduct
under Brady. We further find the trial court did not err in denying the motion for leave
without holding a hearing on the motion. See State v. Peterson, 10th Dist. No. 19AP-595,
2020-Ohio-4579, ¶ 24 (“because neither the motion nor the supporting documents, on
their face, support [the] appellant’s claim that discovery of the information was
unavoidably delayed, the trial court did not abuse its discretion in failing to conduct a
hearing on the motion”). Accordingly, the trial court did not abuse its discretion in denying
appellant’s motion for leave to file a motion for new trial.
{¶ 36} Based on the foregoing, appellant’s first and second assignments of error are
not well-taken and are overruled.
{¶ 37} Under his third assignment of error, appellant asserts the trial court erred in
denying his motion for access to public records. In his March 23, 2022 motion, appellant
No. 22AP-576 12

sought an order granting him “public records access” to “law enforcement’s interviews of
Rita Hamm, Jennifer Pell and Scott Crawford.” The trial court denied the motion, finding
appellant had failed to show a “colorable or justiciable claim.” (Aug. 19, 2022 Decision at
7.)
{¶ 38} R.C. 149.43(B)(8) provides in part:
A public office * * * responsible for public records is not
required to permit a person who is incarcerated pursuant to a
criminal conviction * * * to inspect or to obtain a copy of any
public record concerning a criminal investigation or
prosecution * * *, unless the request to inspect or to obtain a
copy of the record is for the purpose of acquiring information
that is subject to release as a public record under this section
and the judge who imposed the sentence or made the
adjudication with respect to the person, or the judge’s
successor in office, finds that the information sought in the
public record is necessary to support what appears to be a
justiciable claim of the person.

{¶ 39} Ohio courts have held R.C. 149.43(B)(8) “creates a heightened standard for
convicted inmates requesting copies of public records concerning a criminal investigation
or prosecution.” State v. Heid, 4th Dist. No. 14CA3655, 2015-Ohio-1467, ¶ 12. Thus, “[b]y
enacting this provision ‘[t]he General Assembly clearly evidenced a public-policy decision
to restrict a convicted inmate’s unlimited access to public records in order to conserve law
enforcement resources.’ ” Id. at ¶ 13, quoting State ex rel. Russell v. Thornton, 111 Ohio
St.3d 409, 2006-Ohio-5858, ¶ 14. To achieve such purpose, “ ‘R.C. 149.43(B)(8) requires
an incarcerated criminal offender who seeks records relating to an inmate’s criminal
prosecution to obtain a finding by the sentencing judge or the judge’s successor that the
requested information is necessary to support what appears to be a justiciable claim.’ ” Id.,
quoting State ex rel. Fernbach v. Brush, 133 Ohio St.3d 151, 2012-Ohio-4214, ¶ 2, citing
State ex rel. Chatfield v. Flautt, 131 Ohio St.3d 383, 2012-Ohio-1294. This court reviews a
trial court’s “decision on whether the inmate requesting these records established a
justiciable claim under an abuse of discretion standard.” Id. at ¶ 15.
{¶ 40} Under the facts in Heid, the appellant sought records under R.C.
149.43(B)(8) to support his petition for postconviction relief, which the trial court denied.
On appeal, the reviewing court held the appellant failed to establish that records sought
“contained information that would be either necessary or material” to his petition. Heid at
No. 22AP-576 13

¶ 18. Specifically, the court held, where the appellant failed to show the requested records
would contain evidence to support a finding he was “unavoidably prevented” from the
discovery of facts on which he relied to establish his right to file an untimely petition, the
trial court did not abuse its discretion in denying the appellant’s request for public records
under R.C. 149.43(B)(8). Id. In State v. Warren, 2d Dist. No. 28092, 2019-Ohio-3522,
¶ 91, the court held that records requested by an appellant under R.C. 149.43(B)(8) were
“not pieces of newly discovered evidence” that he “could have used to support a motion for
new trial” and had “no bearing” on his “delay in filing his motion for leave to file a motion
for new trial.” The court thus concluded such records “were not material to the pending
motion for leave to file a motion for new trial.” Id.
{¶ 41} In the present case, as addressed under the prior assignments of error, the
evidence relating to potential eyewitnesses, i.e., the identity of one or two neighbors, was
not newly discovered and was available to both sides. Regarding appellant’s request for
public records under R.C. 149.43(B)(8), and similar to the requests in Heid and Warren,
appellant cannot show the requested records would have supported the argument he “was
‘unavoidably prevented’ from discovery of the facts” on which he relies to satisfy the
requirements for filing a motion for leave to file a delayed motion for new trial, nor has
appellant shown, as found by the trial court, the information sought from these individuals
was material, i.e., necessary to support a justiciable claim. Heid at ¶ 18.
{¶ 42} Accordingly, the trial court did not abuse its discretion in denying appellant’s
request for records under R.C. 149.43(B)(8). Appellant’s third assignment of error is not
well-taken and is overruled.
IV. Conclusion
{¶ 43} Based on the foregoing, appellant’s three assignments of error are overruled,
and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
JAMISON and BOGGS, JJ., concur.