[Cite as State v. Gray, 2019-Ohio-1638.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                           No. 107394
                 v.                              :

RAMON GRAY,                                      :

                 Defendant-Appellant.            :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: May 2, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-08-507759-A


                                           Appearances:

                 Russell S. Bensing, for appellant.

                 Michael C. O’Malley, Prosecuting Attorney, and Anthony
                 Thomas Miranda, Assistant Prosecuting Attorney, for
                 appellee.


RAYMOND C. HEADEN, J.:

                   Defendant-appellant Ramon Gray (“Ramon”) appeals from the trial

court’s judgment denying his motion for leave to file a motion for new trial. For the

reasons that follow, we affirm.
Procedural History

               At trial on September 29, 2008, Ramon was found guilty of two

counts of aggravated murder, each with a capital offense and firearm specification,

and one count of having a weapon while under disability. He was sentenced to life

in prison without parole. Ramon appealed and this court affirmed his conviction

and remanded on sentencing errors in State v. Gray, 8th Dist. Cuyahoga No. 92303,

2010-Ohio-240. Ramon filed a petition for postconviction relief on July 29, 2009,

that was denied on February 6, 2014, because it was untimely and barred by the

doctrine of res judicata.

               On December 28, 2017, Ramon filed a motion for leave to file a

delayed motion for new trial on the basis of newly discovered evidence. The trial

court conducted a hearing on the motion for leave on March 27, 2018, and denied

the motion on June 5, 2018. Ramon now appeals, presenting one assignment of

error for our review.

Statement of the Facts

               The facts that led to Ramon’s conviction were clearly detailed in a

prior appeal decided in Gray at ¶ 2-9 and were stated as follows:

      At approximately 2:30 a.m. on January 11, 2007, as Eddie Parker
      walked up to the B-5 Lounge and Deli in Cleveland, Ohio, he saw his
      younger brother, Andre Parker, and his brother’s friend, Willie
      DeLoach, scuffling with two men in the parking lot. Eddie described
      the man fighting with his brother as wearing a black leather jacket and
      black baseball cap (later identified as Ramon) and the man fighting
      with DeLoach as wearing a white tee-shirt and a white skull cap with a
      small brim on it (later identified as Ramon’s brother, Rufus Gray).
      Eddie saw the man fighting with his brother pull a weapon and then
      saw Andre run to his car. Eddie ran inside the B-5 Lounge and
      screamed for the owner to call 911 and then, as he watched through the
      windows, saw Ramon open the rear passenger door of his brother’s car,
      and, with one hand on top of the car, aim the gun into the car and fire
      two shots into the vehicle.

      ***

      Eddie then went out to the parking lot, where he found his brother
      slumped back in the driver’s seat of his car and DeLoach lying wounded
      in the parking lot. Both men died almost immediately; according to the
      coroner, Andre Parker died from a single gunshot wound to the right
      side of the chest and DeLoach died from a single gunshot wound to the
      left abdomen. The coroner also determined that both men had been
      shot with the same weapon.

      ***

      The police arrested Ramon in February 2008. After his arrest, Eddie
      identified Ramon in a physical line-up at police headquarters as the
      man who shot his brother. Subsequently, the police determined that
      three fingerprints lifted from above the rear passenger side door of the
      car Andre Parker was found in matched Ramon’s prints.

              Ramon now presents the affidavits of his brother Rufus Gray

(“Rufus”), Curtis Davis (“Davis”), and himself providing new evidence that allegedly

supports his motion for leave to file a motion for new trial. The relevant portions of

the new narrative are as follows. As Ramon and Rufus attempted to leave the B-5

Lounge and Deli, they were followed by two men. Two men fought with Rufus at the

back of Ramon’s vehicle while Ramon fought one man at the front of the car. As

Ramon fought with this man, a fourth man exited the deli and entered into the fight

with Ramon. Ramon fought the two men at the front of his car while his brother

fought two men at the rear of the car. Ramon heard a gunshot from the rear of
Ramon’s car, near where Rufus was fighting. One of the men fighting with Ramon

ran back into the deli and Ramon and the fourth man ran to the side of the deli,

down 142nd Street. The men stopped in the alley to continue fighting, but heard two

more gunshots. The man fighting Ramon, whom Ramon could not identify, ran

from the scene.

              The gunshots occurred near Rufus and the gun belonged to one of the

men fighting Rufus. Rufus was hit over the head with the gun and the weapon fell

to the ground. Rufus grabbed the gun first and the two men tried to wrestle it from

his grip. While struggling, a gun shot was fired and struck one of the men fighting

with Rufus. That individual ran to his car and sat in the driver’s side seat. Rufus

continued to fight with the remaining man, both trying to gain control of the gun.

With both men’s hands on the gun, one shot was fired into the air and a second shot

hit the man fighting with Rufus. The man fell to the ground and Rufus left in

Ramon’s car, finding Ramon on East 142nd Street. Rufus attests Ramon did not

have a gun at the scene nor did Ramon fire any shots. Rufus states he was

subpoenaed to appear at Ramon’s trial and was present, but was never called to

testify. Had he been called as a witness, he would have presented the facts in his

affidavit. Ramon’s trial attorneys and Rufus unsuccessfully attempted to locate the

unidentified fourth individual with whom Ramon fought.

              The affidavits further state that while Ramon was serving time at Lake

Erie Correctional Institution, Davis began serving a ten-year sentence at the same

facility in late 2015. Davis approached Ramon and indicated he was the fourth man
who fought with Ramon on the day of the murders. Davis’s affidavit depicts the

same facts as those presented above. Davis did not offer an alibi for Ramon at trial

due to his fear of being shot or beat up by Eddie Parker. Davis now avers that Ramon

did not have a weapon on the night in question and Ramon did not shoot Andre

Parker or Willie DeLoach; Ramon was with Davis on East 142nd when those

individuals were shot. Davis kept a low profile to avoid any encounters with the

police or Eddie Parker and, as a result, it would have been difficult to locate Davis

following the shootings.

              Ramon presented this new evidence to support his motion for leave

to file a motion for new trial. Following a hearing, the trial court denied Ramon’s

motion for leave on June 5, 2018.         Ramon appeals, presenting the following

assignment of error for our review. Assignment of Error I: the trial court abused its

discretion in denying defendant’s motion for leave to file a motion for new trial on

the basis of newly discovered evidence.

Law and Analysis

              This court reviews the denial of leave to file a delayed motion for new

trial for an abuse of discretion. State v. Sutton, 2016-Ohio-7612, 73 N.E.3d 981, ¶ 13

(8th Dist.). “The term ‘abuse of discretion’ is one of art, ‘connoting judgment

exercised by a court, which does not comport with reason or the record.’” State v.

Alexander, 11th Dist. Trumbull No. 2011-T-0120, 2012-Ohio-4468, ¶ 10,

quoting State v. Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-2089,

¶ 30.
              Crim.R. 33(B) contemplates a bifurcated procedure: (1) a motion for

leave to file a delayed motion for new trial supported by evidence demonstrating

that the movant was unavoidably prevented from ascertaining the ground sought to

be asserted by way of motion for new trial within fourteen days after the rendering

of the verdict; and (2) if the motion be granted, the filing within seven days of the

actual motion for new trial properly supported by affidavit demonstrating the

existence of the grounds for the motion pursuant to Crim.R. 33 (C). State v. Walden,

19 Ohio App.3d 141, 483 N.E.2d 853 (10th Dist.1984).

              A motion for new trial based on newly discovered evidence filed

beyond 120 days of a jury verdict must demonstrate, by clear and convincing proof,

that the petitioner was unavoidably prevented from discovering the evidence upon

which he must rely. Crim.R. 33(B). A party is “unavoidably prevented” from

discovering evidence if the party had no knowledge of the existence of the grounds

supporting the motion and could not have learned of that existence in the exercise

of reasonable diligence within the time prescribed by the rule. See State v. Gray,

8th Dist. Cuyahoga No. 92646, 2010-Ohio-11, ¶ 17, quoting State v. Lee, 10th Dist.

Franklin No. 05AP-229, 2005-Ohio-6374, ¶ 7.

              Where the newly discovered evidence is obtained beyond the

prescribed 120 days, a petitioner must first file a motion for leave to file a delayed

motion for new trial. State v. Phillips, 8th Dist. Cuyahoga No. 104810, 2017-Ohio-

7164. In it, the petitioner must show by “‘clear and convincing proof that he has

been unavoidably prevented from filing a motion in a timely fashion.’” Gray at ¶ 13,
quoting State v. Morgan, 3d Dist. Shelby No. 17-05-26, 2006-Ohio-145, ¶ 9. Clear

and convincing proof “is that measure or degree of proof [that] is more than a mere

‘preponderance of the evidence,’ but not to the extent of such certainty as is required

‘beyond a reasonable doubt’ * * * 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, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

In addition to showing an unavoidable delay in discovering the evidence, a petitioner

must show that they filed their motion for leave within a reasonable time after

discovering the evidence. Gray at ¶ 18. Whether a delay is reasonable depends on

the facts and circumstances surrounding the case and whether the petitioner has an

adequate explanation for the delay. Id. If the trial court finds that the documents

submitted in support of a motion for leave clearly and convincingly demonstrate that

the petitioner was unavoidably prevented from discovering the evidence, then the

court must grant the motion for leave to file a motion for new trial. State v. Glover,

2016-Ohio-2833, 64 N.E.3d 442, ¶ 28 (8th Dist.).

               Ramon’s trial was held on September 15, 2008, and his motion for

leave to file a motion for new trial was filed on December 28, 2017, well beyond the

120-day time limit. Ramon had to establish, by clear and convincing evidence, that

he was unavoidably prevented from discovering the new evidence as a predicate for

obtaining leave to file a new trial.

               The offered affidavits do not satisfy the required clear and convincing

standard. A claim that evidence was undiscoverable simply because the defense did
not take the necessary efforts to obtain the evidence sooner does not meet the

requisite standard. State v. Anderson, 10th Dist. Franklin No. 12AP-133, 2012-

Ohio-4733, ¶ 14. Criminal defendants and their trial counsel have a duty to make a

“serious effort” of their own to discover potential favorable evidence. State v.

Williams, 8th Dist. Cuyahoga No. 99136, 2013-Ohio-1905, ¶ 9. No evidence has

been introduced to indicate what, if any, steps were taken by defense counsel to

locate the “fourth man.”      No affidavit has been provided by trial counsel

corroborating Ramon and Rufus’s affidavits. There is no evidence to suggest the

police were told of Ramon’s alibi along with a description of the man. Davis avers

he moved just prior to the murders, did not have a job, and purposely attempted to

keep a low profile. We cannot discount what the police could have accomplished

had they been privy to Ramon’s alibi and a description of the man with whom he

allegedly fought in the alley. An alibi is not newly discovered evidence from which

appellant was unavoidably prevented from knowing within the time frame

prescribed by Crim.R. 33. State v. Bridges, 8th Dist. Cuyahoga Nos. 102930 and

103090, 2015-Ohio-5428, ¶ 28. Ramon did not testify at trial and his unsworn

statement to the jury made no mention of the “fourth man.” If Ramon fought with

a fourth man at the scene who could testify he was not the shooter, Ramon was privy

to this information at the time of the trial. No new evidence has been introduced.

              A court may discount self-serving affidavits from a petitioner or his

family members. State v. Stedman, 8th Dist. Cuyahoga No. 83531, 2004-Ohio-

3298, ¶ 29. The affidavits of Ramon and Rufus are self-serving in that both
individuals are personally tied to the outcome of the motion. Even setting aside the

fact that the affidavits are self-serving, they are deficient. Ramon claims he testified

at the mitigation phase of his trial to the same facts included in his affidavit. Yet,

the only testimony presented by Ramon at trial was an unsworn statement

discussing his family dynamics and education, his encounters with the law, and his

hope the jury would spare his life. Rufus’s affidavit states he canvassed the area

around the Deli and on a separate occasion he and his mother spoke with people in

the neighborhood in an attempt to locate the “fourth man.” Ramon and Rufus’s

mother performed internet searches, presumably after Ramon’s sentencing, for the

“fourth man” and Rufus periodically stopped at the deli from 2009 to 2016 to seek

leads.   These purported minimal attempts did not uncover the name and

whereabouts of Davis. We again reference Ramon’s failure to notify the police of

Davis’s presence at the shooting so that they could attempt to locate him soon after

the incident occurred.

               While it is not the factfinder’s role to determine the merits of the new

trial motion, leave to file a motion for new trial requires the offered evidence to

produce a “firm belief or conviction as to the facts.” State v. Mack, 8th Dist.

Cuyahoga No. 75086, 1999 Ohio App. LEXIS 5063, 4 (Oct. 28, 1999).                  The

information contained within the affidavits is not plausible when compared with the

forensic evidence. The fingerprint evidence established Ramon touched the roof of

the victim’s car, which comports with the eyewitness’ narrative. The new version of

the events does not place Ramon near the victim’s car and leaves the presence of his
fingerprints unexplained. The forensic evidence supported the argument that Andre

Parker was shot while seated inside his car. No gunshot primer residue was found

on the victims. Yet, the affidavits propose Parker was shot outside his vehicle and

the victims were holding the guns when the gunshots were fired. The new evidence

lacks credibility.

               Lastly, even assuming Ramon established he was unavoidably

prevented from discovering the name of Davis, Ramon’s motion for leave was not

filed within a reasonable time after he learned of the new evidence. Davis was

transferred to the Lake Erie Correctional Institution in late 2015. Davis’s affidavit

was not obtained until December 2017.         The lapse of two years is outside a

reasonable timeframe.

               Because Ramon did not provide clear and convincing evidence that

he was unavoidably prevented from discovering the new evidence, the trial court’s

denial of his motion for leave to file a motion for new trial was not an abuse of

discretion.

               Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending is terminated. Case remanded to the trial court for

execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



RAYMOND C. HEADEN, JUDGE

MARY EILEEN KILBANE, A.J., and
LARRY A. JONES, SR., J., CONCUR
