[Cite as State v. Wilson, 2023-Ohio-4771.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 23AP-36
v. : (C.P.C. No. 03CR-7102)
Demetrius R. Wilson, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 27, 2023
On brief: [Janet Grubb, First Assistant Prosecuting
Attorney], and Kimberly M. Bond, for appellee.
On brief: The Law Office of Eric J. Allen Ltd., and Eric J.
Allen, for appellant. Argued: Eric J. Allen.
APPEAL from the Franklin County Court of Common Pleas
LELAND, J.
{¶ 1} Defendant-appellant, Demetrius R. Wilson, appeals from a judgment of the
Franklin County Court of Common Pleas denying his motion for leave to file a motion for
new trial based on newly discovered evidence.
I. Facts and Procedural History
{¶ 2} On October 24, 2003, appellant was indicted on two counts of aggravated
murder, in violation of R.C. 2903.01, two counts of attempted aggravated murder, in
violation of R.C. 2923.02/2903.01, and one count of having a weapon while under
disability, in violation of R.C. 2923.13. The matter came for trial before a jury beginning
January 25, 2005.
No. 23AP-36 2
{¶ 3} The following summary of the evidence presented at trial is drawn from this
court’s decision in State v. Wilson, 10th Dist. No. 05AP-277, 2006-Ohio-643 (“Wilson I”),
following appellant’s direct appeal of his convictions for murder and attempted murder.
The indicted charges arose out of “a September 21, 2003 shooting. Specifically, the
aggravated murder charges stem from appellant fatally shooting Fortino Guzman-
Gutierrez (“Guzman”) and Jose Isabel Sandoval-Zarko (“Zarko”), and the attempted
aggravated murder charges pertain to appellant shooting Leonel Saucedo and Rashaad
Marshall.” Id. at ¶ 3.
{¶ 4} Appellant entered a not guilty plea and elected to have a bench trial on the
weapons under disability charge and a jury trial as to the remaining charges. At trial,
Clinton Township Police Sergeant Phillip Perry testified that “[o]n the evening of
September 21, 2003,” he was dispatched to “Dreamer’s Lounge,” where he found Marshall
“outside the bar. Marshall was frightened and had a wound to his left forearm and in his
chest area. Marshall told Sergeant Perry that a Hispanic male shot him.” Id. at ¶ 4.
{¶ 5} Mifflin Township Police Officer Denny Blust testified he investigated the
shooting scene. Officer Blust observed “someone had fatally shot Guzman, and someone
shot Zarko in the back. Zarko was alive at the time, and medics transported him to the
hospital.” Id. at ¶ 5.
{¶ 6} On September 21, 2003, Allison Gamble “lived in an apartment near where
the * * * shooting took place.” Id. at ¶ 6. Gamble testified that, on that date, she “drank
alcohol and smoked marijuana with individuals that included appellant, Marshall, Franklin
Watkins, and Harold Warner.” Id. Appellant talked that evening “about robbing Mexicans.
Appellant also had a firearm in his pants waistband.” Id. at ¶ 7. During the “course of
events, appellant, Marshall, Watkins, and Warner left the apartment, and Gamble stayed
at the apartment. Twenty minutes later, Gamble heard six to seven gunshots.” Id.
{¶ 7} Franklin County Sheriff Detective Mike Kirkpatrick testified that “he spoke
with Marshall at the hospital during the early morning hours of September 22, 2003.
According to Detective Kirkpatrick, Marshall stated that he did not shoot anyone and that
a Hispanic male shot him.” Id. at ¶ 8. Detective Kirkpatrick “took evidence from Marshall’s
hands for gunshot residue testing.” Id.
No. 23AP-36 3
{¶ 8} On the evening of September 21, 2003, Watkins “socialized at Gamble’s
apartment with individuals including Gamble, Warner, Marshall, appellant, and
appellant’s brother.” Id. at ¶ 9. Watkins testified that he “[s]ubsequently * * * walked with
Warner, Marshall, appellant, and appellant’s brother to a nearby store. On the way to the
store, Marshall told the group that Watkins ‘told on him’ for stealing a video game
machine.” Id. According to Watkins “[a]ppellant stated that he ‘would kill anyone who
would snitch on him.’ ” Id.
{¶ 9} After the group “returned to the apartment, appellant and Marshall talked
about robbing Mexicans that lived nearby. Marshall had a firearm earlier that evening, but
appellant had that same firearm in his pants waistband while talking about the robbery.”
Id. at ¶ 10. Shortly thereafter, “Marshall, appellant, appellant’s brother, and a ‘tall guy’
went toward the area where the Mexicans lived. * * * Warner joined the group later, and
Watkins eventually joined them.” Id. At the time “Watkins joined the group, he and
Warner discussed robbing a pizza delivery person. While Watkins called to order the pizza,
he heard two gunshots and started to run away.” Id. Watkins subsequently “heard six or
seven more gunshots when he ran across the street. Watkins then saw appellant running
toward him, and appellant had the firearm.” Id.
{¶ 10} On the evening of September 21, 2003, “Saucedo socialized with Zarko and
Guzman outside an apartment complex. Two black men approached, and one of them
asked for beer.” Id. at ¶ 11. Saucedo handed the man “two beers and then continued to talk
with his friends. Thereafter, the man who asked for the beer grabbed Guzman, put a
firearm to his head, and shot him. Instantly, the man then shot Zarko and Saucedo. The
bullet grazed the left side of Saucedo’s chest.” Id.
{¶ 11} Law enforcement subsequently “spoke with Saucedo about the shooting and
asked Saucedo to identify the shooter in a photo array. Saucedo identified appellant as the
shooter.” Id. at ¶ 12. During direct-examination, “Saucedo testified that the location of the
shooting was not well-lit and that he remembered the shooter’s face ‘a little bit.’ ” Id. at
¶ 13. Saucedo “conceded on cross-examination that he did not see the shooter’s face clearly
and that the ‘black men’ in the photo array ‘appeared to be a little bit similar.’ ” Id.
{¶ 12} Warner testified that he “socialized with individuals that included Gamble,
Watkins, Marshall, appellant, and appellant’s brother during the evening of September 21,
No. 23AP-36 4
2003.” Id. at ¶ 14. At some point that night, “Warner, Marshall, Watkins, and appellant
walked to a nearby store. While walking to the store, Marshall mentioned that Watkins
‘told on him’ for stealing a video game machine. Appellant responded: ‘ “I don’t want
nobody snitching on me.” ’ ” Id. Appellant and Marshall subsequently “started talking
about robbing Mexicans who lived nearby. The group walked toward the area where the
Mexicans lived. Appellant then pointed a firearm at a Mexican woman holding a baby and
stated: ‘ “I could pop her like from here.” ’ ” Id. at ¶ 15.
{¶ 13} In the meantime, “Warner decided that the group should rob a pizza delivery
person instead. Watkins used his cell phone to order pizza. Appellant and Marshall walked
away and, thereafter, Warner heard gunshots.” Id. at ¶ 16. Warner then observed
“appellant shooting a firearm, although Warner did not see whom appellant was shooting.
Warner and Watkins started to run, and appellant, carrying the firearm, ran toward them
and stated: ‘ “I shot the mother fucker.” ’ ” Id.
{¶ 14} Franklin County Sheriff Detective Chris Floyd “spoke with Warner about the
shooting,” and “Warner provided information” to the detective. Id. at ¶ 17. Warner stated
“he was a closer friend with Marshall than appellant, and Warner admitted that he was
previously charged with falsification, but pled to a misdemeanor disorderly conduct under
a plea bargain.” Id.
{¶ 15} Marshall testified he was “socializing with individuals including appellant,
Gamble, Watkins, and Warner on the evening of September 21, 2003. Marshall never had
a firearm that evening, but appellant did.” Id. at ¶ 18. During the events that evening,
“Marshall, Warner, Watkins, and appellant walked to a nearby store. On the way to the
store, Marshall confronted Watkins about Watkins revealing that Marshall stole a video
game machine. Appellant ‘said that if somebody snitched on him he felt that he would kill
them.’ * * * Marshall thought that appellant was joking.” Id. at ¶ 19.
{¶ 16} Later, “the group returned to Gamble’s apartment complex, and [they] talked
about robbing a pizza delivery person. Meanwhile, appellant and Marshall left the group
and approached some Mexicans that lived nearby.” Id. at ¶ 20. Marshall “asked one of the
Mexicans for a beer. The Mexican, Guzman, gave Marshall a beer and appellant grabbed
Guzman and shot him in the head. Marshall did not expect this to happen, stating: ‘As far
as I know it was robbing the pizza place, and when [appellant] told me to walk with him[,]
No. 23AP-36 5
I walked with him.’ ” Id. Appellant next “turned toward Marshall and pointed the firearm
toward Marshall. Marshall tried to grab the firearm, but appellant shot Marshall. Marshall
fled and heard six to seven more shots. Marshall went to Dreamer’s Lounge to ask for help
because he was bleeding and could not breathe.” Id. Medics transported Marshall to a
hospital, where “a law enforcement officer took samples from Marshall’s hands for a
gunshot residue test.” Id. at ¶ 21.
{¶ 17} During direct examination, Marshall “admitted that he first told law
enforcement that a Mexican shot him, and that he lied when he made that statement.
Marshall further noted that he later falsely told law enforcement that an ‘unknown subject
approached’ him and shot him.” Id. at ¶ 22. Marshall also admitted to “telling law
enforcement that a drug dealer named ‘G’ shot him, and that he again lied when he made
that statement.” Id. Marshall, however, “verified that he ultimately told law enforcement
the truth, which was that appellant shot him.” Id.
{¶ 18} Marshall testified plaintiff-appellee, State of Ohio, “charged him with three
counts of felony obstruction of justice because of his failure to initially tell the truth about
the shooting,” and he acknowledged the state “allowed him to plead to one count of
obstruction of justice with the possibility of community control in exchange for him
testifying against appellant.” Id. at ¶ 23.
{¶ 19} On cross-examination, Marshall acknowledged “he previously told Warner
that appellant was not trying to shoot him, but was trying to protect his life,” and Marshall
“also stated on cross-examination that he gave different accounts of the incident because
he was scared ‘for [his] life’ due to appellant’s actions.” Id. at ¶ 24.
{¶ 20} Martin Lewis, a forensic scientist, “examined the gunshot residue test
samples that law enforcement took from Marshall’s hands” and “he found no gunshot
residue from the samples.” Id. at ¶ 25.
{¶ 21} Detective Floyd testified he learned “Guzman was dead at the crime scene
and that Zarko died at the hospital. Next, Detective Floyd spoke with Marshall about the
incident, and Marshall originally indicated that a light-skinned man, either black or
Hispanic, shot him. Thereafter, Marshall indicated that a man nicknamed ‘G’ shot him.”
Id. at ¶ 26. Marshall “[u]ltimately * * * confessed that appellant was the shooter. Detective
Floyd then asked Marshall to identify appellant in a photo array, but Marshall refused,
No. 23AP-36 6
stating that he was afraid for his family.” Id. Marshall asked the detective what he “was
‘going to do for him.’ ” Id. Later, “Marshall identified appellant in the photo array.” Id.
{¶ 22} Detective Floyd also interviewed Saucedo about the incident, and “Saucedo
identified appellant in a photo array as the shooter. Detective Floyd also showed Saucedo
a photo array with Marshall’s photograph, but Saucedo was unable to pick anyone out of
that photo array.” Id. at ¶ 27. The detective also spoke with “Gamble, Watkins, and
Warner,” and they “provided information about appellant’s identity and activities during
the evening of September 21, 2003. Eventually, Detective Floyd issued a warrant for
appellant’s arrest, and appellant surrendered himself at the jail on October 20, 2003.” Id.
At the time he went to jail, appellant “had no gunshot wounds.” Id.
{¶ 23} Dr. Patrick Fardal, from the Franklin County Coroner’s Office, testified “that
Zarko ‘died as a result of [a] gunshot wound to the trunk, injuries to the thoracic spinal cord
and to the right lung and subsequent internal bleeding.’ ” Id. at ¶ 30. He stated that
“Guzman ‘died solely and exclusively as a result of suffering a contact gunshot wound to his
head which was perforation of the skull and brain, along with a secondary gunshot wound
to the trunk, which caused injuries to his left lung.’ ” Id.
{¶ 24} Following deliberations, the jury returned verdicts finding appellant “not
guilty of the aggravated murder charges, but guilty of the lesser-included offenses of murder
in regards to the death of Guzman and Zarko,” and the jury “also found appellant not guilty
of the attempted aggravated murder charges, but guilty of the lesser-included offenses of
attempted murder in regards to the shooting of Saucedo and Marshall.” Id. at ¶ 31. The
jury further found appellant “guilty on all accompanying firearm specifications,” and the
state “dismissed the weapon under disability charge.” Id.
{¶ 25} The trial court “sentenced appellant to 15 years to life imprisonment on each
of the murder convictions and nine years imprisonment on each of the attempted murder
convictions.” Id. at ¶ 32. The court “merged the firearm specifications,” sentencing
appellant to “three years imprisonment on the merged specifications,” and ordering
appellant to “serve each prison term consecutively.” Id.
{¶ 26} Appellant filed a direct appeal raising three assignments of error in which he
argued: (1) his convictions were not supported by sufficient evidence and were against the
manifest weight of the evidence, (2) the trial court erred in sentencing him to consecutive
No. 23AP-36 7
sentences, and (3) the court erred in sentencing him to terms of actual incarceration which
were longer than the minimum terms. In Wilson I, this court overruled appellant’s
assignments of error challenging the sufficiency and weight of the evidence and the court’s
imposition of consecutive sentences. This court sustained appellant’s third assignment of
error, holding the trial court “did not make the requisite R.C. 2929.14(B) findings when
imposing non-minimum sentences on appellant’s attempted murder convictions.” Id. at
¶ 63. We therefore affirmed in part and reversed in part the judgment of the trial court and
remanded the matter for the court to “follow the proper procedure to impose non-
minimum sentences.” Id.
{¶ 27} On January 19, 2007, the trial court conducted a re-sentencing hearing. By
judgment entry filed February 22, 2007, the trial court imposed the same sentence.
Appellant appealed that judgment and, in State v. Wilson, 10th Dist. No. 07AP-224, 2007-
Ohio-4801 (“Wilson II”), this court affirmed the judgment of the trial court.
{¶ 28} On August 7, 2020, appellant filed a motion for leave to file a motion for new
trial. In the accompanying memorandum, appellant asserted that Marshall had recanted
his trial testimony in which he identified appellant as the shooter. Attached as an exhibit
to the motion was an undated affidavit of Marshall (hereafter the “First Marshall
Affidavit”), who averred in part the detectives in this case “pressured affiant into stating it
was [appellant] who had shot him. In fact, it was not [appellant] who shot him. It was an
unknown man who killed the two Latinos.” (First Marshall Affidavit at ¶ 2.) Marshall
further averred: “[H]e did testify against [appellant] and said he was the shooter. This was
completely false. He is speaking out now because he knows [appellant] did not shoot him.”
(First Marshall Affidavit at ¶ 3.) According to Marshall, “he has only recently come forward
because he has felt bad about [appellant] being in prison for something he did not do,” and
he did not speak out sooner “because he was afraid the police would pin the murder on
him.” (First Marshall Affidavit at ¶ 5.)
{¶ 29} On September 9, 2020, the state filed a memorandum in opposition to
appellant’s motion for leave to file a motion for new trial. In its memorandum, the state
argued in part that the affidavit of Marshall could not be considered new evidence as the
statement in the affidavit was consistent with his initial statement to responding officers at
the scene. The state further argued appellant had not presented clear and convincing
No. 23AP-36 8
evidence that he was unavoidably prevented from discovering the alleged new evidence in
a timely manner.
{¶ 30} By decision and entry filed November 19, 2020, the trial court denied
appellant’s motion for leave to file a motion for new trial. Appellant filed an appeal from
the trial court’s entry, raising two assignments of error in which he asserted the trial court
erred in: (1) denying his motion for leave, and (2) failing to hold an evidentiary hearing.
{¶ 31} In State v. Wilson, 10th Dist. No. 20AP-556, 2021-Ohio-3046 (“Wilson III”),
this court overruled both assignments of error and affirmed the judgment of the trial court.
In that decision, this court held in part that “appellant failed to establish by clear and
convincing evidence that he was unavoidably prevented from discovering the evidence he
now wishes to bring forward.” Id. at ¶ 31.
{¶ 32} On September 16, 2022, appellant filed a second motion for leave to file a
motion for new trial based on newly discovered evidence. Appellant argued the new
evidence came in the form of an affidavit by Marshall, in which he averred detectives
pressured him into stating appellant had shot him, and that “[i]t was an unknown man who
killed the two Latinos.” (Sept. 16, 2022 Mot. for Leave at 5.) Appellant also cited a recent
Supreme Court of Ohio decision, State v. Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, for
the proposition that a defendant “ ‘satisfies the “unavoidably prevented” requirement’ ” for
a Brady claim by “ ‘establishing that the prosecution suppressed the evidence on which the
defendant relies.’ ” (Sept. 16, 2022 Mot. for Leave at 7, quoting Bethel at ¶ 25.) Brady v.
Maryland, 373 U.S. 83 (1963). Appellant requested an evidentiary hearing on the motion.
{¶ 33} Attached to the motion was the affidavit of Marshall (hereafter the “Second
Marshall Affidavit”), dated June 27, 2022. Similar to the affidavit filed with appellant’s first
motion for leave, Marshall averred: “The [d]etectives in the case pressured affiant into
stating it was [appellant] who had shot him. In fact, it was not [appellant] who shot him.
It was an unknown man who killed the two Latinos.” (Second Marshall Affidavit at ¶ 2.) In
his latest affidavit, Marshall additionally averred: “The detectives and the prosecutor told
him that he must testify this way,” and they “told him that he would be prosecuted if he
testified any other way.” (Second Marshall Affidavit at ¶ 3.)
{¶ 34} On September 22, 2022, the state filed a memorandum opposing appellant’s
motion for leave, arguing appellant “has never raised a Brady claim,” and that “Marshall’s
No. 23AP-36 9
current recantation is not prima facie evidence of a Brady claim.” (State’s Memo Opposing
Mot. for Leave at 5.) The state further argued appellant’s “current motion is merely
attempting to relitigate his request for leave to file a motion for new trial,” and that there
was no difference in the content of Marshall’s 2022 affidavit and the affidavit of Marshall
that appellant “submitted to support his 2020 pleading.” (State’s Memo Opposing Mot. for
Leave at 6.)
{¶ 35} On December 27, 2022, the trial court filed a decision and entry denying
appellant’s motion for leave without a hearing. In its decision, the trial court analyzed the
motion based on the recent decision in Bethel, holding in part that appellant “cannot
circumvent the ‘unavoidably prevented’ requirement of Crim.R. 33(B) by asserting Brady
violations now, because [appellant] failed to produce clear and convincing evidence of such
a violation.” (Dec. 27, 2022 Decision & Entry at 10.) The trial court further found “the
doctrine of res judicata bars [appellant] from arguing a Brady violation now or from re-
litigating the issue of ‘unavoidable prevention’ under Crim.R. 33(B).” (Dec. 27, 2022
Decision & Entry at 9.)
II. Assignments of Error
{¶ 36} Appellant appeals and assigns the following two assignments of error for our
review:
[I.] THE TRIAL COURT ERRED IN DENYING
APPELLANT’S MOTION FOR LEAVE.
[II.] THE TRIAL COURT ERRED IN NOT HOLDING AN
EVIDENTIARY HEARING.
III. Analysis
{¶ 37} Appellant’s assignments of error are interrelated and will be considered
together. Under these assignments of error, appellant asserts the trial court erred in:
(1) denying his motion for leave to file a motion for new trial, and (2) failing to conduct an
evidentiary hearing on the motion.
{¶ 38} A trial court’s ruling on a motion for leave to file a motion for new trial “is
reviewed for an abuse of discretion.” State v. McNeal, 169 Ohio St.3d 47, 2022-Ohio-2703,
¶ 13. Further, “[a] trial court’s decision whether to conduct an evidentiary hearing on a
motion for leave to file a delayed motion for new trial is also discretionary.” State v.
No. 23AP-36 10
Dodson, 10th Dist. No. 22AP-388, 2023-Ohio-701, ¶ 14, citing State v. Hoover-Moore, 10th
Dist. No. 14AP-1049, 2015-Ohio-4863, ¶ 14. In this respect, “ ‘[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 State v. Ambartsoumov, 10th Dist.
No. 12AP-878, 2013-Ohio-3011, ¶ 13, quoting State v. Cleveland, 9th Dist. No.
08CA009406, 2009-Ohio-397, ¶ 54, citing State v. McConnell, 170 Ohio App.3d 800,
2007-Ohio-1181, ¶ 7 (2d Dist.).
{¶ 39} As noted under the facts, appellant sought leave to file a motion for new trial
based on newly discovered evidence. Crim.R. 33(A)(6) provides that 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.” 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
or the trial court’s decision in a bench trial.” 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.
{¶ 40} Under Ohio law, “[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.’ ” Dodson at ¶ 16, quoting State v. Lundy, 10th
Dist. No. 19AP-505, 2020-Ohio-1585, ¶ 11.
{¶ 41} In Bethel, the Supreme Court addressed the issue of the “unavoidably
prevented” requirement of Crim.R. 33(B) in the context of a criminal defendant seeking
leave to file a motion for new trial based on a claim the state withheld evidence in violation
of Brady. Specifically, the court in Bethel considered whether a defendant asserting a
Brady claim is required to show “he could not have discovered the evidence by exercising
reasonable diligence.” Bethel at ¶ 21. Noting “[i]t is well settled that a defendant is entitled
to rely on the prosecution’s duty to produce evidence that is favorable to the defense,” the
No. 23AP-36 11
court held that “[a] defendant seeking to assert a Brady claim therefore is not required to
show that he could not have discovered suppressed evidence by exercising reasonable
diligence.” Id. at ¶ 25. Rather, a 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.” McNeal at ¶ 17,
citing Bethel at ¶ 25, 59.
{¶ 42} In the present case, the trial court, in considering appellant’s second motion
for leave to file a motion for new trial, noted that, at the time of this court’s 2021 decision
in Wilson III, the Supreme Court “had not yet issued its March 22, 2022 decision in State
v. Bethel, * * * which altered the analysis for motions seeking leave to file untimely new-
trial motions.” (Dec. 27, 2022 Decision & Entry at 6.) The trial court therefore analyzed
appellant’s “instant September 16, 2022 motion in light of Wilson III, as modified by
Bethel.” (Dec. 27, 2022 Decision & Entry at 7.) Specifically, the trial court addressed the
holding in Bethel that defendants seeking to assert a Brady claim may satisfy the
unavoidably prevented requirement “if they can establish that the prosecution suppressed
the evidence on which they rely in violation of Brady.” (Dec. 27, 2022 Decision & Entry at
8-9, citing Bethel.)
{¶ 43} The trial court initially found appellant “could have asserted a Brady
violation in his first-filed motion for leave” but “he did not.” (Dec. 27, 2022 Decision &
Entry at 9.) In addressing whether the state carried its burden of showing appellant could
have “asserted this Brady claim in 2020,” the trial court determined “a comparison of the
two Marshall affidavits * * * reveal that [appellant’s] new Brady argument is based
substantially on the same factual information he provided the Court in 2020.” (Dec. 27,
2022 Decision & Entry at 9.) The trial court concluded “the doctrine of res judicata bars
[appellant] from arguing a Brady violation now or from re-litigating the issue of
‘unavoidable prevention’ under Crim.R. 33(B).” (Dec. 27, 2022 Decision & Entry at 9.)
{¶ 44} Notwithstanding its finding of res judicata, the trial court also addressed and
rejected appellant’s contention that he offered proof of a Brady violation, holding in part:
[I]t is difficult to determine what information [appellant]
claims was suppressed by the State. The State did not
suppress Marshall’s new allegation that a “man in a hoodie”
committed the crimes. [Appellant] was aware that Marshall
had previously alleged—and recanted—that an “unknown
No. 23AP-36 12
subject” committed the crime. The State did not suppress the
pressure that it had placed on Marshall because Marshall
testified about the plea agreement he had reached in exchange
for his testimony. The State did not suppress facts questioning
Marshall’s general credibility as Marshall’s own testimony
discussed the various versions of the event he had told.
(Dec. 27, 2022 Decision & Entry at 9-10.)
{¶ 45} In light of the above, the trial court concluded appellant “failed to produce
clear and convincing evidence” of a Brady violation. (Dec. 27, 2022 Decision & Entry at
10.) Having found that appellant failed to show a Brady violation, the trial court therefore
determined appellant “cannot circumvent the ‘unavoidably prevented’ requirement of
Crim.R. 33(B) by asserting Brady violations now.” (Dec. 27, 2022 Decision & Entry at 10.)
{¶ 46} In Brady, “the Supreme Court held that the Fourteenth Amendment to the
United States Constitution is violated where a state ‘withholds evidence that is favorable to
the defense and material to the defendant’s guilt or punishment.’ ” Dodson at ¶ 28, quoting
Smith v. Cain, 565 U.S. 73, 75 (2012). There are three components to a Brady violation:
“ ‘The evidence at issue must be favorable to the accused, either because it is exculpatory,
or because it is impeaching; that evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.’ ” Id., quoting Strickler v.
Greene, 527 U.S. 263, 281-82 (1999). Further, “[a] Brady violation involves the post-trial
discovery of information that was known to the prosecution, but unknown to the defense.”
Id., citing United States v. Agurs, 427 U.S. 97, 103 (1976). A criminal “defendant ‘bears
the burden of proving a Brady violation and consequent denial of due process.’ ” Id. at
¶ 30, quoting State v. Moore, 10th Dist. No. 11AP-1116, 2013-Ohio-3365, ¶ 43, citing State
v. Jackson, 57 Ohio St.3d 29, 33 (1991).
{¶ 47} As noted above, in his first motion for leave, filed August 7, 2020, appellant
attached the First Marshall Affidavit in which Marshall stated it was not appellant who shot
him, and that detectives in the case pressured him into stating it was appellant who shot
him. In appellant’s second motion for leave to file a motion for new trial, filed
September 16, 2022, appellant attached the Second Marshall Affidavit. The two affidavits,
as noted by the trial court, are essentially identical with the exception that the Second
Marshall Affidavit included the following additional averment by Marshall: “The detectives
No. 23AP-36 13
and the prosecutor told him that he must testify this way. The detectives and prosecutor
told him that he would be prosecuted if he testified any other way. Affiant was told not to
speak to anyone from [appellant’s] defense team.” (Second Marshall Affidavit at ¶ 3.)
{¶ 48} Upon review, the record supports the trial court’s determination that
appellant failed to specify or demonstrate what evidence was suppressed by the state. As
noted by the state, Marshall was a shooting victim who was identified in discovery (and who
testified at trial). Further, Marshall’s prior inconsistent statements as to the identity of the
shooter were revealed to the defense prior to trial, including the assertion in both of his
affidavits that “an unknown man” in a hoodie was the shooter. (First Marshall Affidavit at
¶ 2, Second Marshall Affidavit at ¶ 2.)
{¶ 49} At trial, Marshall testified as to his inconsistent statements regarding the
identity of the shooter. During direct examination, Marshall acknowledged he initially told
the police “a Mexican had shot me.” (Tr. Vol. II at 425.) Marshall testified that he “told a
bunch of lies” regarding the incident, and that he was charged with obstruction of justice.
(Tr. Vol. II at 425.) Marshall also acknowledged that he told police he was drinking with
Mexicans and “an unknown subject approached” him and shot him. (Tr. Vol. II at 426.) At
one point, Marshall told police “that ‘G’ or Gurney had shot everyone.” (Tr. Vol. II at 426.)
Marshall further testified he told police that appellant was the individual who shot him, and
“[t]hat’s the truth.” (Tr. Vol. II at 427.) On cross-examination, Marshall was questioned
about his prior statements.
{¶ 50} We also note that Marshall’s statements to police during the investigation
regarding his inconsistent identifications, including his statement to law enforcement “that
an ‘unknown subject approached’ him and shot him,” were detailed in this court’s decision
on direct appeal. Wilson I at ¶ 22. Accordingly, as found by the trial court, appellant has
failed to show the state suppressed evidence that an unknown subject committed the crime,
nor was defense counsel prevented from raising the defense that someone other than
appellant was the actual shooter.
{¶ 51} Similarly, the record supports the trial court’s determination that the
prosecution did not suppress evidence that Marshall was pressured by detectives or the
prosecution to testify against appellant. In Wilson I, this court noted Marshall testified at
trial that the state “charged him with three counts of felony obstruction of justice because
No. 23AP-36 14
of his failure to initially tell the truth about the shooting,” and Marshall “acknowledged” the
state “allowed him to plead to one count of obstruction of justice with the possibility of
community control in exchange for him testifying against appellant.” Id. at ¶ 23. Further,
defense counsel was able to question Marshall on cross-examination as to any pressure
exerted on him, including his “understanding of your deal.” (Tr. Vol. II at 493.) Marshall
testified “there’s a good chance if I cooperate I could be given probation.” (Tr. Vol. II at
494.) Marshall also testified, during cross-examination, that he had spoken with his friend,
Warner, who was cooperating with the state, and that “[h]e was trying to coerce me into
identifying the shooter.” (Tr. Vol. II at 476.)
{¶ 52} 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, citing State v. Zeune, 10th Dist. No. 13AP-147, 2013-Ohio-4156, ¶ 18,
citing State v. Monroe, 10th Dist. No. 04AP-658, 2005-Ohi0-5242, ¶ 17. As discussed
above, the record shows defense counsel was aware at the time of trial of Marshall’s
identification of an unknown man as the alleged shooter and that Marshall was pressured
and entered into a plea agreement in exchange for his testimony. Upon review, the trial
court did not abuse its discretion in finding the motion for leave and supporting materials,
including the Second Marshall Affidavit, did not support a Brady violation based on the
suppression of evidence.
{¶ 53} Finding no Brady violation (and therefore that appellant did not satisfy the
unavoidably prevented requirement by establishing the prosecution suppressed the
evidence on which he would rely), the trial court addressed the motion in the context of the
Crim.R. 33(B) requirement that a defendant seeking leave must establish, by clear and
convincing evidence, that he was unavoidably prevented from discovering the purported
new evidence within the 120-day period under Crim.R. 33(B). In discussing that
requirement, the trial court was guided by this court’s decision in Wilson III, in which we
held, upon review of the affidavits and materials submitted with the 2020 motion for leave:
“[W]e do not find appellant established by clear and convincing proof” that he “(1) had no
knowledge of the evidence he now presents, or (2) could not have learned of the substance
of Marshall’s recantation within 120 days of the verdict through the exercise of reasonable
diligence.” Wilson III at ¶ 23.
No. 23AP-36 15
{¶ 54} The trial court observed that, although appellant “claimed he did not think
Marshall would ever ‘tell the truth’ about what happened during the September 21, 2003
shooting incident, [appellant] definitely knew Marshall was a witness to the crimes,” and
“the fact that Marshall was a witness for the [s]tate and thus would have been kept from
defense counsel did not persuade the Tenth District because Marshall’s inconsistent
statements to law enforcement and his credibility were examined at length during trial.”
(Dec. 27, 2022 Decision & Entry at 7.) The trial court noted that, in light of Marshall’s trial
testimony regarding his inconsistent statements and his acknowledgement the state
charged him with obstruction of justice and allowed him to enter a plea agreement, “the
Tenth District could not agree that clear and convincing evidence established that
[appellant] had no knowledge of the substance of Marshall’s recantation and further that
[appellant] could not have learned of the existence of the substance of Marshall’s
recantation within 120 days of the verdict in this case.” (Dec. 27, 2022 Decision & Entry at
8.)
{¶ 55} As indicated above, while the trial court found appellant failed to produce
clear and convincing evidence of a Brady claim, the court further concluded the doctrine of
res judicata precluded appellant from “arguing a Brady violation now or from re-litigating
the issue of ‘unavoidable prevention’ under Crim.R. 33(B).” (Dec. 27, 2022 Decision &
Entry at 9.) Upon review, we find no error with the trial court’s determination that a claim
based on Brady was barred by res judicata as it could have been raised in the first motion
for leave. Nor do we find error with the court’s determination that appellant was precluded
from re-litigating the issue of whether he was unavoidably prevented from timely
discovering the alleged new evidence contained in Marshall’s latest affidavit.
{¶ 56} In general, “[t]he doctrine of res judicata prevents repeated attacks on a final
judgment and applies to all issues that were or might have been litigated.” Bank of New
York v. Jackson, 8th Dist. No. 99874, 2013-Ohio-5133, ¶ 10, citing Roger v. Whitehall, 25
Ohio St.3d 67 (1985). Further, “ ‘[p]rinciples of res judicata prevent relief on successive,
similar motions raising issues which were or could have been raised originally.’ ” (Emphasis
omitted.) Id., quoting Coulson v. Coulson, 5 Ohio St.3d 12, 17 (1983), citing Brick
Processors, Inc. v. Culbertson, 2 Ohio App.3d 478 (8th Dist.1981). Thus, “where a new
motion simply rephrases issues previously raised and where the facts alleged in successive
No. 23AP-36 16
motions were available to the appellant at the time he filed his earlier motion, the principles
of res judicata bar the later motion.” Id., citing D’Agnese v. Holleran, 8th Dist. No. 86769,
2006-Ohio-2470, ¶ 6, citing Bahgat v. Bahgat, 10th Dist. No. 83AP-469 (Dec. 6, 1984.)
{¶ 57} Here, the issue of appellant’s knowledge of the “substance of Marshall’s
recantation,” including averments by Marshall in his first affidavit that he was “pressured
by detectives into stating it was appellant who shot and killed the two men” and that “an
unknown male” was the shooter, was addressed by this court in appellant’s appeal of the
trial court’s denial of his first motion for leave to file a motion for new trial. Wilson III at
¶ 21, 25. While, as addressed above, we find no error with the trial court’s determination
that appellant failed to produce clear and convincing evidence of a Brady violation, we
further agree with the trial court that appellant “could have asserted a Brady violation in
his first-filed motion for leave,” but “he did not.” (Dec. 27, 2022 Decision & Entry at 9.)
{¶ 58} Further, aside from appellant’s attempt to raise a Brady claim in his latest
motion, this court previously determined that appellant “failed to establish by clear and
convincing evidence that he was unavoidably prevented from discovering the evidence he
now wishes to bring forward.” Wilson III at ¶ 31. As found by the trial court in this case, a
comparison of the two Marshall affidavits indicates appellant’s latest argument “is based
substantially on the same factual information he provided” the court in his 2020 motion
for leave. (Dec. 27, 2022 Decision & Entry at 9.) Upon review, we find no error with the
trial court’s conclusion that appellant’s attempt to re-litigate the issue of whether he could
have obtained Marshall’s statements earlier (i.e., whether he was unavoidably prevented
from timely discovering the evidence he relied on) is barred by the doctrine of res judicata.
{¶ 59} Finally, notwithstanding the preclusive effect of res judicata, the trial court
also found appellant “failed to establish by clear and convincing evidence * * * that he was
unavoidably prevented from timely discovering new evidence upon which his leave motion
relies.” (Dec. 27, 2022 Decision & Entry at 10.) We find no error with that determination,
as appellant offered no explanation as to “investigative actions taken before trial or within
the 120-day time frame set forth in Crim.R. 33(B),” nor did he adequately “explain why he
was unavoidably prevented from discovering the allegedly new evidence upon which he
relies as the basis for his motion for leave.” Dodson at ¶ 24. Accordingly, for the foregoing
No. 23AP-36 17
reasons, the trial court did not abuse its discretion in denying appellant’s motion for leave
to file a motion for new trial.
{¶ 60} Appellant also contends the trial court erred in failing to conduct a hearing
on the motion. Specifically, appellant contends he was entitled to a hearing because he
“showed * * * that he was unavoidably prevented from providing this information to the
court within the [120] days provided in the rule.” (Appellant’s Brief at 17.)
{¶ 61} In light of our determination that the trial court properly applied the doctrine
of res judicata, and where appellant failed to show he was unavoidably prevented from
timely discovering the “new” evidence, the trial court did not abuse its discretion in failing
to grant a hearing on the motion for leave. See, e.g., State v. Redd, 6th Dist. No. L-13-1087,
2013-Ohio-5181, ¶ 23, citing State v. Russell, 10th Dist. No. 04AP-1149, 2005-Ohio-4063,
¶ 7 (trial court did not abuse its discretion in denying appellant’s motion for leave without
a hearing because “application of res judicata to appellant’s claims was clear”); State v.
Bush, 10th Dist. No. 08AP-627, 2009-Ohio-441, ¶ 12 (trial court did not abuse its discretion
in denying motion for leave where documents provided by appellant to support his motion
for leave to file a motion for new trial did not establish he was unavoidably prevented from
obtaining the evidence set forth in affidavit within 120 days after trial).
{¶ 62} Based upon the foregoing, appellant’s first and second assignments of error
are not well-taken and are overruled.
IV. Conclusion
{¶ 63} Having overruled appellant’s two assignments of error, the judgment of the
Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
DORRIAN and LUPER SCHUSTER, JJ., concur.