[Cite as State v. Taylor, 2011-Ohio-2563.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :   C.A. CASE NO. 23916

vs.                                               :    T.C. CASE NO. 97CR1303

EDWARD D. TAYLOR                                   :   (Criminal Appeal from
                                                        Common Pleas Court)
        Defendant-Appellant                        :

                                        . . . . . . . . .

                                             O P I N I O N

                      Rendered on the 27th day of May, 2011.

                                        . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Carley J. Ingram, Asst. Pros.
Attorney, Atty. Reg. No.0020084, P.O. Box 972, Dayton, OH 45422
     Attorneys for Plaintiff-Appellee

Adrian King, Atty. Reg. No.0081882, 36 N. Detroit Street, Suite
104, Xenia, OH 45385
     Attorney for Defendant-Appellant

                                        . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, Edward Taylor, appeals from a final judgment

denying his motion for a new trial based upon a claim of newly

discovered evidence.

        {¶ 2} In February 1998, Defendant was found guilty following

a jury trial of murder with a firearm specification.                         The trial
                                                                       2

court sentenced Defendant to prison terms totaling eighteen years

to life.    We affirmed Defendant’s conviction and sentence on direct

appeal.     State v. Taylor (April 16, 1999), Montgomery App. No.

17142.     In our Opinion we set forth the facts of the case as follows:

     {¶ 3} “On May 9, 1997, Paul Metz was shot and killed in the

rear bedroom of his apartment. Earlier that day, Metz had asked

an ex-neighbor, Tyaunna Landers, to find buyers for some marijuana

he was receiving that day. Landers brought defendant-appellant

Edward Taylor and an unidentified man, referred to only as ‘Joe,’

to Metz's apartment to purchase the marijuana. When the three first

arrived at the apartment, only Paul and his girlfriend, Jody Brown

were present. The five smoked some marijuana and discussed the

price of the marijuana. After approximately thirty to forty-five

minutes, Taylor, Joe and Landers left.

     {¶ 4} “Later, Merle Lunsford arrived at the apartment. He

brought six pounds of marijuana with him, as well as a .38 caliber

Smith & Wesson handgun, which he kept in his jacket pocket. Lunsford

testified that he brought the gun with him upon Metz's request

because Metz did not trust the buyers. Lunsford gave Metz five

pounds of the marijuana, which Metz took into the back bedroom

of the apartment; the other pound of marijuana was intended for

another party. Shortly after Lunsford arrived, Landers, Taylor

and Joe returned. Metz and Taylor went to a back bedroom, leaving
                                                                          3

Landers, Joe, Lunsford and Brown in the living room.

     {¶ 5} “Brown and Landers testified that they heard a gunshot

in the rear bedroom, and then Joe began shooting at Lunsford.

Lunsford was not sure whether he heard the shots in the bedroom

before Joe started shooting. Lunsford testified that Joe shot him

in the forehead, causing him to fall back over the couch. He

testified that Joe then shot him several times in the leg. According

to Lunsford, he then pulled out his gun and returned fire at Joe,

getting off two shots. He testified that Taylor came out of the

bedroom with a gun and aimed at Lunsford. He testified that Taylor

pulled the trigger, but the gun did not fire. Lunsford further

testified that he fired approximately three times at Taylor,

wounding him in the head. Taylor fled the apartment through the

bedroom window.

     {¶ 6} “At    some   point,   Brown,   Landers   and   Joe   fled   the

apartment. Lunsford testified that before leaving the apartment

he picked up Joe's .25 caliber silver automatic, and then left

the apartment as well. He further testified that once outside the

apartment, he saw Landers, Joe and Taylor getting into their car;

at that point he attempted to shoot at them with Joe's gun, but

the gun was empty. According to Lunsford, he then threw Joe's gun

into a mud puddle, where it was later recovered. Lunsford then

went to a fire department where he was treated and transported
                                                                 4

to a hospital. Lunsford testified that he disposed of his .38

caliber weapon and only turned it over to the authorities after

he was assured of immunity for his testimony in the prosecution

of Taylor.

     {¶ 7} “Landers testified that after she fled the apartment,

she helped Taylor into the Plymouth Breeze automobile they had

arrived in. They drove away and picked up Joe somewhere on the

street. Landers testified that they drove to Taylor's apartment

where she and Taylor transferred into Taylor's car. Taylor and

Landers then drove to Cincinnati so that Taylor could be treated

at a hospital. Taylor and Landers told hospital staff and the

Cincinnati Police that he had been shot when they stopped to ask

for directions in Cincinnati. Taylor was subsequently arrested

by the Dayton police.

     {¶ 8} “Metz died as a result of four gunshot wounds. The

coroner recovered only one bullet from his body; the bullet was

from a .45 caliber weapon that was found in the bedroom with Metz.

An atomic absorption test was performed on Metz's hands to test

for gunpowder residue. Residue was found on his hands. An atomic

absorption test performed on Lunsford's hands also indicated that

he had gunpowder residue on his hands. No atomic absorption test

was performed on Taylor's hands.”

     {¶ 9} On February 16, 2007, nine years after he was convicted
                                                                          5

of murdering Paul Metz, Defendant filed a motion for a new trial

based upon newly discovered evidence.          Crim.R. 33(A)(6).         In

support of his motion, Defendant attached affidavits from Antonio

Haney and Charles Martin, who, in identical language, claim that

they overheard Merle Lunsford tell an unidentified person that

he had falsely testified at Defendant’s trial that Defendant went

to Metz’s apartment to rob Metz and Lunsford.             Also, according

to the affidavits, Lunsford stated that it was Metz, and not him,

who shot Defendant.

     {¶ 10} On January 8, 2008, Defendant supplemented his motion

for a new trial with his own affidavit, wherein he states he shot

Metz in self-defense after Metz shot him in the face.         On February

14, 2008, the State filed its third memorandum contra Defendant’s

motion for a new trial.         The State argued that the materials

submitted by Defendant fail to demonstrate that he was unavoidably

prevented from discovering his new evidence, and in any event the

evidence presented at trial was overwhelming and the affidavits

submitted     by   Defendant   were   insufficient   to    demonstrate    a

reasonable probability of a different result should a new trial

be ordered.    On April 8, 2008, Defendant supplemented his new trial

motion with an affidavit from Joseph Postone, who claims he was

present and saw Metz shoot Defendant in the face before Defendant

pulled his gun and fired back.
                                                                  6

     {¶ 11} On February 12, 2010, the trial court summarily denied

Defendant’s motion for a new trial without a hearing.    The court

concluded that Defendant had not demonstrated by clear and

convincing proof that he was unavoidably prevented from discovering

the new evidence he now relies on.    The court further concluded

that the affidavits submitted by Defendant are not credible and

are insufficient to justify a hearing.

     {¶ 12} Defendant timely appealed to this court from the trial

court’s decision overruling his motion for a new trial

ASSIGNMENT OF ERROR

     “THE TRIAL COURT ERRED IN OVERRULING THE MOTION FOR LEAVE

TO FILE MOTION FOR A NEW TRIAL WITHOUT HAVING A HEARING.”

     {¶ 13} The decision whether to grant a motion for a new trial

lies within the sound discretion of the trial court and will not

be disturbed on appeal absent an abuse of that discretion. State

v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54.

     {¶ 14} “Abuse of discretion” has been defined as an attitude

that is unreasonable, arbitrary or unconscionable. Huffman v. Hair

Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482

N.E.2d 1248, 1252. It is to be expected that most instances of

abuse of discretion will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or

arbitrary.
                                                                      7

      {¶ 15} A decision is unreasonable if there is no sound

reasoning process that would support that decision. It is not enough

that the reviewing court, were it deciding the issue de novo, would

not have found that reasoning process to be persuasive, perhaps

in view of countervailing reasoning processes that would support

a contrary result. AAAA Enterprises, Inc. v. River Place Community

Redevelopment (1990), 50 Ohio St.3d 157, 161, 553 N.E.2d 597.

      {¶ 16} Pursuant to Crim.R. 33(A)(6), a new trial may be granted

when new evidence material to the defense is discovered that the

defendant could not with reasonable diligence have discovered and

produced at trial. To prevail on a motion for new trial based upon

newly discovered evidence, Defendant must show that the new

evidence: (1) discloses a strong probability that the result of

the trial would be different if a new trial were granted; (2) has

been discovered since the trial; (3) is such as could not have

been discovered before the trial through the exercise of due

diligence; (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. Petro (1947), 148 Ohio

St.   505;   State   v.   DeVaughns,   Montgomery   App.   No.   23720,

2011-Ohio-125.

      {¶ 17} Motions for a new trial based upon newly discovered

evidence must be filed within one hundred twenty days after the
                                                                8

verdict was rendered, unless it appears by clear and convincing

proof that the movant was unavoidably prevented from discovering

the new evidence, in which case the motion for new trial must be

filed within seven days after an order of the court finding that

Defendant was unavoidably prevented from discovering the new

evidence within the one hundred twenty day period. Crim.R. 33(B).

     {¶ 18} Defendant failed to obtain leave of court to pursue

an untimely motion for a new trial, and further failed to

demonstrate by clear and convincing proof that he was unavoidably

prevented from discovering the new evidence on which he relies.

 Further, a review of Defendant’s motion for a new trial reveals

that it lacks merit, because the new evidence is not material to

the defense.   Material evidence is evidence which goes to the

substantial matters in dispute or has a legitimate and effective

influence or bearing on the decision in the case.    Black’s Law

Dictionary (4th Ed., 1968), at p. 1128.

     {¶ 19} Defendant’s motion for a new trial is predicated on

the proposition that Defendant had agreed to buy marijuana from

Metz, and that Metz pulled a gun on Defendant in order to steal

his money and shot Defendant in the head, after which Defendant

shot Metz in self-defense.   However, Defendant never claimed at

trial that he acted in self-defense in shooting Metz.     To the

contrary, Defendant claimed that he never shot anyone.   The “new
                                                                        9

evidence,” which consists of affidavit statements by Defendant

and three others, if true, directly contradicts and defeats the

defense Defendant pursued at trial.      The new evidence therefore

fails to satisfy the materiality requirement of Crim.R. 33(A)(6).

     {¶ 20} Additionally, we note that the affidavits of Haney and

Martin, which were offered in support of Defendant’s theory that

he shot Metz in self-defense, inaccurately report the facts.         Both

affidavits claim that Lunsford admitted falsely testifying that

Defendant Taylor came to the apartment to rob Lunsford and Metz.

 Howeer, Lunsford never testified at trial that Defendant Taylor

came to rob them.   No abuse of discretion on the part of the trial

court in denying Defendant’s motion for a new trial has been

demonstrated.

     {¶ 21} With    respect   to   Defendant’s   claim   that   he   was

unavoidably prevented from timely discovering this new evidence,

we note that the guilty verdicts in this case were returned by

the jury in February 1998.    This motion for a new trial was filed

on February 16, 2007, nine years after the guilty verdicts.

Obviously Defendant’s motion for a new trial is untimely, and he

was therefore required to demonstrate by clear and convincing proof

that he was unavoidably prevented from discovering the new evidence

within one hundred and twenty days after the guilty verdicts were

rendered.
                                                                  10

     {¶ 22} In concluding that Defendant failed to demonstrate that

he was unavoidably prevented from discovering the new evidence,

the trial court found that the affidavits submitted by Defendant

were not credible.   State v. Calhoun (1999), 86 Ohio St.3d 279.

 The court pointed out that Defendant became aware of Haney’s

statements that Lunsford had changed his testimony more than one

year prior to filing his motion for a new trial.           Martin’s

affidavit, which employs the exact same language as Haney’s, was

obtained ten months after Haney’s affidavit.    No showing has been

made as to why it took ten months to obtain Martin’s affidavit.

     {¶ 23} Furthermore, the court noted that the affidavits fail

to specify when and where the conversation with Lunsford took place,

how affiants know Lunsford, affiants’ relationship with Defendant

and when and how Defendant became aware of the conversations between

affiants and Lunsford.   The trial court noted that several of the

Calhoun factors affecting credibility apply in this case.       For

instance, this trial court presided over the trial, the wording

of Haney’s and Martin’s affidavits are identical, and the new

evidence set forth in the affidavits relies completely upon

hearsay.

     {¶ 24} We find no abuse of discretion in the trial court’s

denial of Defendant’s motion for a new trial on the court’s finding

that Defendant failed to demonstrate by clear and convincing proof
                                                                  11

that he was unavoidably prevented from discovering the new

evidence, and on the court’s further finding that the affidavits

Defendant submitted from Haney and Martin were not credible.   State

v. Lanier, Clark App. No. 2009CA84, 2010-Ohio-2921, at ¶16.

     {¶ 25} Defendant’s assignment of error is overruled.        The

judgment of the trial court will be affirmed.




DONOVAN, J. And HALL, J., concur.




Copies mailed to:

Carley J. Ingram, Esq.
Adrian King, Esq.
Hon. Barbara P. Gorman
