[Cite as State v. Metcalf, 2015-Ohio-3507.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

STATE OF OHIO                                       :
                                                    :   Appellate Case No. 26101
        Plaintiff-Appellee                          :
                                                    :   Trial Court Case No. 2010-CR-197
v.                                                  :
                                                    :   (Criminal Appeal from
JESSE METCALF                                       :    Common Pleas Court)
                                                    :
        Defendant-Appellant                         :
                                                    :

                                               ...........

                                              OPINION

                            Rendered on the 28th day of August, 2015.

                                               ...........

MATHIAS H. HECK, JR., by Kirsten A. Brandt, Atty. Reg. No. 0070162, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building,
P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

DANIEL F. GETTY, Atty. Reg. No. 0074341, 46 East Franklin Street, Centerville, Ohio
45459
      Attorney for Defendant-Appellant

                                              .............

FAIN, J.

        {¶ 1} Defendant-appellant Jesse Metcalf appeals from an order overruling his
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motion for leave to file a delayed motion for a new trial pursuant to Crim. R. 33(B). Metcalf

contends that he has new evidence that he was unavoidably prevented from discovering

earlier. We conclude that the trial court did not abuse its discretion in overruling the

motion. Consequently, the order from which this appeal is taken is Affirmed.



                               I. Course of Proceedings

       {¶ 2} Metcalf was convicted and sentenced to serve a total of 41 years to life, for

Murder, Aggravated Robbery, Aggravated Burglary, and Having a Weapon While Under

a Disability. Metcalf appealed. We affirmed. State v. Metcalf, 2d Dist. Montgomery No.

24338, 2012-Ohio-6045. More than three years later, Metcalf filed a pro se motion for

leave to file a delayed motion for a new trial, and attached two affidavits. In his own

affidavit, Metcalf averred that his newly discovered evidence had just been obtained

when his mother came to visit him in prison and admitted her connection to the murder

victim. In her affidavit, Metcalf’s mother confirmed this connection to the victim, and

averred that she had not previously told her son or the detective about this connection

because she was ashamed. Metcalf further alleges that mental health counseling in

prison has led him to realize that he was suffering from a mental condition of

“homophobia” at the time of the offense. Metcalf asserts that this new information would

have supported different defenses to his offenses, and that he should be given a new trial

to present these defenses.

       {¶ 3} The State opposed the motion for leave to file a delayed motion for a new

trial, arguing that Metcalf had failed to present clear and convincing evidence that he was

unavoidably prevented from discovering the new evidence within the time limit set by
                                                                                        -3-
Crim. R. 33. The trial court overruled Metcalf’s motion for leave to file a delayed motion

for a new trial, for the “reasons set forth by the State in its Memorandum Contra

Defendant’s Motion for a New Trial, and because the ‘newly discovered evidence’ was

not provocation for Defendant’s actions for which he was convicted.” Dkt. #10.



                                II. Standard of Review

      {¶ 4}   A trial court's decision on a Crim.R. 33 motion for a new trial will not be

reversed absent an abuse of discretion. State v. Gillispie, 2d Dist. Montgomery No.

24456, 2012-Ohio-1656, ¶ 31, citing State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54

(1990), paragraph one of the syllabus; State v. Matthews, 81 Ohio St.3d 375, 378, 691

N.E.2d 1041 (1998).

      {¶ 5} “The abuse of discretion standard is defined as ‘[a]n appellate court's

standard for reviewing a decision that is asserted to be grossly unsound, unreasonable,

illegal, or unsupported by the evidence.’ ” State v. Mollett, 2d Dist. Clark No 2014-CA-85,

2015-Ohio-1670, ¶ 17, citing State v. Boles, 2d Dist. Montgomery No. 23037,

2010–Ohio–278, ¶ 18.

      {¶ 6} Therefore, the trial court’s decision denying Metcalf the opportunity to file a

motion for a new trial must be affirmed unless the basis of the decision is grossly

unsound, unreasonable, illegal or unsupported by the evidence.



               III. The Proffered Evidence Was Not Newly Discovered

      {¶ 7} Metcalf asserts one assignment of error:

              THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
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       APPELLANT’S MOTION FOR LEAVE FOR NEW TRIAL DESPITE

       HAVING CLEAR AND CONVINCING EVIDENCE BEFORE IT THAT SUCH

       NEW EVIDENCE EXISTED.

       {¶ 8} Crim. R. 33(B) allows a defendant to file a motion for a new trial within 14

days after a verdict is rendered, unless the motion is based on newly discovered

evidence, which may be filed within 120 days after the day the verdict is entered. After

the 120 days have passed, a defendant must seek permission to file a motion for a new

trial by presenting “clear and convincing proof” to allow the trial court to find that the

defendant was “unavoidably prevented from discovering the evidence within the 120 day

period.” Crim. R. 33(B). As we discussed in State v. Risden, 2d Dist. Montgomery

No. 25234, 2013-Ohio-1823, ¶14:

               When a defendant attempts to offer new evidence after the 120–day

       time limit has passed, the defendant must establish: “(1) that it is new

       evidence; (2) that he was unavoidably prevented from discovering within

       the time limit; (3) that it is based on fact; and (4) that the evidence is being

       proffered in good faith.” State v. Beavers, 2d Dist. Montgomery No. 22588,

       2009-Ohio-5604, ¶ 27, citing 2 Baldwin's Ohio Practice, Section 79:9.

       Accordingly, the credibility of the new evidence must be assessed. Id at ¶

       27, citing State v. Martin, 2d Dist. Montgomery No. 20383, 2005-Ohio-209,

       ¶ 16.

       {¶ 9} Whether the proffered evidence meets the grounds set forth for a new trial in

Crim R. 33(A) is not at issue unless the trial court first grants leave to file the motion. The

issue presented in this appeal is whether the trial court abused its discretion in denying
                                                                                          -5-
leave to file a delayed motion for a new trial. Thus, the substance of the affidavits are

examined only to determine whether they meet the four criteria set forth in Risden and

Beavers, supra.

       {¶ 10} Crim R. 33 (B) requires the movant to submit “clear and convincing proof.”

Clear and convincing evidence is “the amount of proof that will produce in the mind of the

trier of fact a firm belief or conviction as to the facts sought to be established.”

Lansdowne v. Beacon Journal Pub. Co., 32 Ohio St. 3d 176, 180, 512 N.E. 2d 979

(1987). In the case before us, Metcalf and his mother rely on their feelings of shame,

humiliation and embarrassment as their reasons for not having discussed the alleged

facts until more than two years after the deadline for filing the post-trial motion. There is

no legal support for the concept that shame or humiliation constitutes clear and

convincing proof that discovery of evidence has been unavoidably prevented. Metcalf

presented no evidence that he had been prevented from communicating with his mother

after his conviction, based on any specific actions or misconduct, outside of Metcalf’s

control.

       {¶ 11} It has been acknowledged that a defendant may be unavoidably prevented

from discovering new evidence based on misconduct of the jury, prosecutor, or a witness,

when the misconduct occurred outside of court proceedings and was unknown to the

court or counsel at the time of the occurrence. State v. Walden, 19 Ohio App. 3d 141, 483

N.E. 2d 859 (10th Dist. 1984). We have held that a movant fails to demonstrate that he

was unavoidably prevented from discovering new evidence when he would have

discovered the information earlier had he exercised due diligence and some effort. State

v. Warwick, 2d Dist. Champaign No. 01CA33, 2002-Ohio-3649. In the case before us,
                                                                                       -6-
there is no evidence of any steps taken by Metcalf in an attempt to discover this

information earlier.

       {¶ 12} Even if shame and humiliation were considered grounds for finding

unavoidable prevention of discovery of pertinent facts, the record does not support a

finding that the evidence proffered by Metcalf constitutes “new” evidence. Metcalf

theorizes that if he had been able to present the evidence from his mother, he would have

been able to pursue a self-defense claim. However, any evidence supporting a claim for

self-defense would have been known to the defendant from the moment of the actual

killing, cannot be described as a theory of which he had no knowledge, and does not

properly constitute newly discovered evidence under Crim R. 33. State v. Schlee, 11th

Dist. Lake No. 2013-L-131, 2014-Ohio-5765, ¶ 44.

       {¶ 13} Metcalf further suggests that his mental health counseling in prison has

helped him identify that he suffers from a mental condition described as “homophobia,”

which was responsible for his actions and prevented him from reasonably assisting in his

defense. However, Metcalf did not proffer any credible evidence that his mental condition

meets the definition in R.C. 2901.01 that he “did not know, as a result of a severe mental

disease or defect, the wrongfulness of his actions.” Based on the facts alleged, the trial

court could reasonably conclude that Metcalf’s allegations were not made in good faith

because the proffered evidence was at best, “proof that a person’s reason, at the time of

the commission of an offense, was so impaired that the person did not have the ability to

refrain from doing the person’s act or acts,” which does not constitute a defense. R.C.

2945.391. Accordingly, the record does not support that the trial court abused its

discretion by finding that Metcalf failed to prove by clear and convincing evidence the
                                                                                          -7-
facts required to meet the conditions set forth in Crim R. 33 for the filing of a delayed

motion for a new trial. Metcalf’s sole assignment of error is overruled.



                                       IV. Conclusion

       {¶ 14} Metcalf’s sole assignment of error having been overruled, the order of the

trial court overruling his motion to file a delayed motion for a new trial is Affirmed.

                                      .............



FROELICH, P.J., and DONOVAN, J., concur.


Copies mailed to:

Mathias H. Heck
Kirsten A. Brandt
Daniel F. Getty
Hon. Gregory F. Singer
