COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70916 STATE OF OHIO : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION LANDON NICHOLSON : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: MAY 1, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-256450 JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY:JOHN GALLAGHER (#0036750) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: ALBERT A. GIULANI (#0033289) 410 Leader Building Cleveland, Ohio 44114 PAUL MANCINO, JR. (#0015576) 75 Public Square - Suite 1016 Cleveland, Ohio 44113-2098 - 2 - SPELLACY, J.: Plaintiff-appellant the State of Ohio appeals the grant of a new trial to defendant-appellee Landon Nicholson. Appellant assigns the following error for review: THE TRIAL COURT ABUSED ITS DISCRETION AND, THEREFORE, ERRED BECAUSE THERE WAS NO BASIS FOR THE GRANTING OF DEFENDANT'S MOTION FOR A NEW TRIAL. Finding the appeal to have merit, the judgment of the trial court is reversed. I. Nicholson was indicted for felonious assault and aggravated robbery. Nicholson's trial began on February 26, 1991. Wallace Brazier testified that on July 27, 1990, he was at the Morris Black Projects at East 107th Street and Woodland Avenue in Cleveland. Brazier grew up with both Nicholson and the victim, Otis Agnew. Brazier heard Nicholson ask Agnew about Nicholson's money. Brazier left the hallway of the building where Agnew and Nicholson were talking. When he returned, the two men were fighting with their fists. That fight broke up and Brazier observed Nicholson walk away. Another man known as Jamaican Dee was jumped on by Agnew. Jamaican Dee poked Agnew with a knife. Otis Agnew testified he was in the hallway of an apartment building at Morris Black Projects on July 27, 1990. Agnew was with Brazier and the Jamaican friend of Brazier's. The three men were smoking crack. Brazier and the Jamaican left, leaving Agnew alone in the hallway. - 3 - Nicholson came in and began complaining to Agnew about $5.00 Agnew supposedly owed him. Agnew denied owing Nicholson any money. The Jamaican returned and stood directly behind Agnew. Nicholson swung at Agnew and hit him. Agnew turned and saw Jamaican Dee behind him with a knife in his hand. Nicholson struck Agnew several times and then grabbed Agnew around the neck. The Jamaican began cutting at Agnew's pockets. Agnew was stabbed in his arm. Agnew's pocket was finally cut open and $20.00 was taken. On February 27, 1991, Nicholson was convicted after having a jury trial. The conviction was affirmed on appeal. Nicholson filed a motion for a new trial on August 22, 1995, claiming newly discovered evidence. The trial court held a hearing on the motion. The hearing was before the successor judge to the original trial judge. Michael Ellison testified he knew Nicholson, Agnew and Jamaican Dee. Ellison witnessed the altercation between Agnew and Jamaican Dee in which Jamaican Dee used a knife. Ellison averred Nicholson was not present at the time. Ellison received a phone call from Nicholson in 1991 while Nicholson was incarcerated. Ellison stated everyone knew where he lived and it would not have been difficult to find him. Arnold Anderson testified he witnessed the fight between Agnew and Nicholson. After Nicholson walked away, a second fight broke out about fifteen to thirty minutes later between Agnew and Jamaican Dee. Nicholson was not involved in that fight in any way. - 4 - Anderson stated a whole bunch of people were present and witnessed the fight. Those people are around all the time and Anderson knows them at least by sight. Nicholson testified his attorney never asked him about witnesses or evidence in his favor. She never came to see him in jail. Nicholson was out on bond for about a week on this charge. Nicholson initially stated he was rearrested before he could talk to anyone. Later Nicholson stated he did contact witnesses but they were not willing to get involved. Nicholson claimed that after his conviction he talked to anyone he could to try and find someone to support his claim of innocence but that people were afraid of Jamaican Dee. Quite a few people did not want to say anything. Nicholson stated he was not aware prior to trial that Anderson or Ellison witnessed the incident between Agnew and Jamaican Dee. Rebecca Rea, Nicholson's trial attorney, testified she kept Nicholson informed of the progress of his case. Nicholson never offered any exculpatory information to his benefit or gave names and addresses of any witnesses. Nicholson only said he was not guilty. Nicholson was not cooperative once he was re-arrested or throughout the trial. The trial court granted Nicholson's motion. The state has appealed from that ruling. - 5 - II. In its assignment of error, the state argues the trial court abused its discretion by granting Nicholson's motion for a new trial. The state claims Nicholson never established he was unavoidably prevented from finding the newly discovered evidence within the one hundred twenty-day period permitted by Crim.R. 33. Crim.R. 33(A)(6) provides in pertinent part that a new trial may be granted: When new evidence material to the defense is discovered, which the defendant could not with reasonable diligence have discovered and produced at trial. Crim.R. 33(B) provides that motions for a new trial made on the basis of newly discovered evidence must be made within one hundred twenty days after the verdict is rendered. Otherwise, the defendant must prove by clear and convincing evidence that he was unavoidably prevented from discovering the evidence within the permitted period of time. Clear and convincing evidence has been defined as: [T]hat measure or degree of proof which is more than a mere "preponderance of the evidence," but not to the extent of such certainty as is required "beyond a reasonable doubt" in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established. State v. Schiebel (1990), 55 Ohio St.3d 71, 74, quoting Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. Where the standard of proof is clear and convincing, an appellate - 6 - court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof. Id. Crim.R. 33(A) allows a trial court to entertain a motion for a new trial. The allowance of a motion for a new trial on the grounds of newly discovered evidence is within the competence and discretion of the trial judge. Its decision will not be disturbed absent a showing of an abuse of discretion. State v. Hill (1992), 64 Ohio St.3d 313, 333. The Supreme Court of Ohio held in State v. Petro (1947), 148 Ohio St. 505, syllabus: To warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence. (State v. Lopa, 96 Ohio St., 410, approved and followed.) Both Crim.R. 33(A)(6) and Crim.R. 33(B) require that the newly discovered evidence could not have been discovered with due diligence. There is a difference between the two as to the standard of review applied. Crim.R. 33(A)(6) determinations are reviewed under an abuse of discretion standard. However, when a motion is filed more than one hundred twenty days after judgment, - 7 - the record first will be reviewed to determine if the defendant provided clear and convincing proof that the evidence could not have been discovered with due diligence before the time limit imposed by Crim.R. 33(B) expired. In State v. Wilson (Nov. 2, 1993), Franklin App. No. 93AP- 732, unreported, the trial court ruled the defendant failed to present clear and convincing proof he was unavoidably prevented from discovering witnesses before the time limit of Crim.R. 33(B) had run. The Franklin County Court of Appeals upheld that decision, noting the record did not indicate how appellant and his counsel were prevented from discovering the witnesses prior to trial or how the witnesses ultimately were discovered. The witnesses and the defendant all knew each other prior to the trial. The court observed that if defense counsel could not effectively communicate with a potential witness or devote sufficient time to investigate personally prior to trial, the services of a private investigator could be retained. In State v. Jackson (1992), 82 Ohio App.3d 667, the defen- dant's motion for a new trial was supported in part by affidavits of two eyewitnesses. It was held the trial court correctly overruled the motion. Not only was the evidence itself insufficient but there was no showing the evidence could not have been discovered by the defendant with due diligence. Both were witnesses to the event and there was no showing they could not have been located earlier. - 8 - In the instant case, appellant was required to prove by clear and convincing evidence that he was unable to timely discover the new witnesses with due diligence. Appellant argues he could not have investigated himself before his trial as he was incarcerated only one week after his arrest and remained in jail throughout his trial. At the hearing, Ellison testified he spoke to Nicholson in 1991, the same year Nicholson's trial was held. Nicholson testified he found out Ellison was a witness when he called Ellison and that the call did not occur four years after the incident. Apparently, only one contact took place between Ellison and Nicholson and it was then Nicholson "discovered" his new evidence. According to Ellison, this happened in 1991. The conversation may have occurred during the one hundred twenty day time limit imposed by Crim.R. 33(B). Even if late at that point, Nicholson delayed filing his motion for an additional four years. There is no explanation for this additional delay. Nicholson testified that he spoke to numerous people before and after his trial in an effort to uncover exculpatory evidence. Nicholson knew both of his "new" witnesses before his arrest and was aware of where both could be located. Although Nicholson claimed he did not know Ellison or Anderson were eyewitnesses, he was aware there were numerous witnesses in the hallway at the time of his altercation with Agnew. Anderson testified he witnessed the incident between Nicholson and Agnew. - 9 - At no point in the record does Nicholson establish when a private investigator was hired or why this could not have been done earlier. As Wilson noted, a private investigator could have been hired prior to trial or at least soon thereafter. The hiring of a private investigator had no bearing on the discovery of Ellison. Nicholson uncovered that evidence. It was Nicholson's burden, and not that of the state, to prove by clear and convincing evidence that he could not have discovered the evidence earlier. Nicholson was aware Ellison was a witness in 1991. It is unknown when Nicholson became aware of Anderson. The evidence produced by Nicholson is not such that a firm belief or conviction was established factually that Nicholson was diligent in trying to discover evidence. It never was established when all of the evidence was found, why it could not have been discovered earlier or why Nicholson delayed for years before filing his motion after speaking to Ellison in 1991. Nicholson failed to meet his burden of proof in this case. The trial court erred in granting Nicholson's motion. Even when applying the standard of review for a Crim.R. 33(A)(6) judgment, it is apparent the trial court abused its discretion in this case. The motion for a new trial was heard and decided by the judge who succeeded the trial judge. Usually, the trial judge also hears the motion for a new trial. One reason the determination of the trial court is accorded such great deference is that it heard all of the evidence admitted at trial and observed - 10 - the witnesses. Therefore, the trial judge is able to place the arguments presented by a defendant in a motion for a new trial within the context of what occurred at trial. In the instant case, the deference given the lower court's decision is lessened as the judge did not have the benefit of presiding at Nicholson's trial. It must be remembered that new trials are not to be granted lightly. Toledo v. Stuart (1983), 11 Ohio App.3d 292. For Crim.R. 33(A)(6), the defendant must establish that the evidence could not have been discovered with reasonable diligence. As stated by this court in State v. Sheppard (1955), 100 Ohio App. 399, 404: The allowance of a new trial, as set forth in the statute above, is bottomed on the proposition that the new evidence uncovered could not have been discovered and produced at the trial by the exercise of reasonable diligence. This is a basic and necessary requirement under the law. If it were otherwise, a defendant might well take a languorous attitude toward the trial of his case, be indolent in the marshalling of defensive evidence and decide to take his chances on the state being unable to prove him guilty beyond a reasonable doubt, and even be so bold as to hold testimony in his behalf in reserve to be used as grounds for another trial in case he be found guilty. Nicholson failed to meet this requirement of reasonable diligence. He delayed in filing his motion for four years. Nicholson exhibited "a languorous attitude" toward his case. He supposedly was aware of exculpatory evidence yet did nothing to bring that evidence to light in a timely manner, but instead never took any action for years. - 11 - The trial court abused its discretion in granting Nicholson's motion for a new trial. Appellant's assignment of error has merit. Judgment reversed. - 12 - This cause is reversed. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JOSEPH J. NAHRA, P.J. CONCURS; DIANE KARPINSKI, J. DISSENTS. (See Dissenting Opinion Attached) LEO M. SPELLACY JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(B). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70916 STATE OF OHIO : : : Plaintiff-Appellee : : DISSENTING -vs- : : OPINION LANDON NICHOLSON : : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: MAY 1, 1997 KARPINSKI, J., DISSENTING: For the following reasons, I respectfully dissent from the majority opinion. A trial court's decision to grant or deny a motion for a new trial is reviewed under an abuse of discretion standard. State v. Tijerina (1994), 99 Ohio App.3d 7; State v. Schiebel (1990), 55 Ohio St.3d 71. "An abuse of discretion, 'implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency.'" State v. Tijerina, supra, quoting State ex rel. Commercial Lovelace Motor Freight v. Lancaster (1986), 22 Ohio St.3d 191. Crim.R. 33(B) covers motions for new trials and states in part as follows: - 2 - Motions for new trial on account of newly discovered evidence shall be filed within one hundred twenty days after the day upon which the verdict was rendered, or the decision of the court where trial by jury has been waived. If it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely, such motion shall be filed within seven days from an order of the court finding that he was unavoidably prevented from discovering the evidence within the one hundred twenty day period. Thus the trial court must first determine whether or not defendant was unavoidably prevented from discovering the evidence within the one-hundred-twenty-day period from the date of the jury verdict. State v. Pinkerman (1993), 88 Ohio App.3d 158, 161. Pursuant to Crim.R. 33(B), a defendant must demonstrate this element of being "unavoidably prevented" by clear and convincing evidence. State v. Schiebel (1990), 55 Ohio St.3d 71, 74. The Supreme Court has defined "clear and convincing evidence" as "that measure or degree of proof which is more than a mere 'preponderance of evidence,' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford (1954), 161 Ohio St. 469. Finally, it is also a firm tenet of appellate law that a reviewing court should not substitute its judgment for that of the trial court when there exists competent and credible evidence supporting the findings of fact and conclusions of law rendered by the trial court judge. State v. Schiebel, supra at 74. - 3 - In the case at bar, the trial court did not abuse its discretion in finding that defendant was unavoidably prevented from bringing forth the two witnesses within one hundred twenty days after the jury verdict. Defendant testified that he did not know that the two witnesses observed the incident in which Agnew was stabbed and robbed. Both witnesses stated that they did not want to get involved with the case. Importantly, defendant testified that he was not present during the fight between "Jamaican-D" and Agnew and, therefore, could not have known who observed the fight. The information came to light only after defendant's mother hired a private investigator. Nor does the fact defendant called Ellison in 1991 refute defendant's claim he learned of the witnesses only later through a private investigator. The record does not show any evidence whatsoever that the robbery was communicated to defendant in that conversation. Furthermore, the record shows not even a telephone call occurred between defendant and the second witness, Anderson. Finally, it is quite understandable the persons in the neighborhood would fear coming forth, without a subpoena, to identify as the sole assailant another man who regularly terrorized the area. For the above reasons, the trial court did not abuse its discretion by finding that defendant was unavoidably prevented from presenting the witnesses in the first trial. The last issue is whether the newly discovered evidence would create a strong possibility of a different result at trial. Dayton v. Martin (1987), 43 Ohio App.3d 87, 90. Again, the trial court - 4 - did not abuse its discretion in finding the existence of a strong possibility that the outcome of the first trial would have been different had the jury been presented with the testimony of Ellison and Anderson. Both witnesses unequivocally contradicted the victim's testimony that defendant participated in the stabbing and robbing of Agnew. Such evidence is sufficient to support the trial court's .