[Cite as State v. Crockett, 2016-Ohio-7572.]
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                       :
                                                                   Nos. 15AP-1149
                 Plaintiff-Appellee,                 :             (C.P.C. No. 13CR-1660)

v.                                                   :             and     15AP-1152
                                                                   (C.P.C. No. 12CR-1185)
Johnnie Crockett, III,                               :
                                                                 (REGULAR CALENDAR)
                 Defendant-Appellant.                :


                                               D E C I S I O N

                                    Rendered on November 1, 2016


                 On brief:     Ron O'Brien, Prosecuting Attorney, and
                 Barbara A. Farnbacher, for appellee.

                 On brief: Johnnie Crockett, III, pro se.

                   APPEAL from the Franklin County Court of Common Pleas

HORTON, J.

        {¶ 1} Defendant-appellant, Johnnie Crockett, III, appeals the December 4, 2015
judgment of the Franklin County Court of Common Pleas denying his motion for a new
trial as it does not contain newly discovered evidence. Further, the trial court rejected
appellant's claim of ineffective assistance of counsel as it is barred by the doctrine of res
judicata. For the reasons that follow, we affirm the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} This is appellant's second appeal with respect to these cases. On
March 6, 2012, the Franklin County Grand Jury issued a three-count indictment charging
appellant with felonious assault and two counts of endangering children. (See case No.
15AP-1152.) On March 26, 2013, the Franklin County Grand Jury issued a second
indictment charging appellant with murder. (See case No. 15AP-1149.) On February 4,
2014, a jury returned a verdict of guilty on two counts of endangering children, each a
No. 15AP-1149 and 15AP-1152                                                              2

felony of the second degree and one count of murder, an unclassified felony. The jury also
returned a verdict of not guilty of one count of felonious assault.
       {¶ 3} On February 26, 2014, a sentencing hearing was held. The trial court
imposed a life sentence with possibility of parole after 15 years for the conviction of
murder. The trial court also imposed a sentence of 3 years for Count 2 of the indictment of
endangering children to run concurrent with 18 months as to Count 3 of the indictment of
endangering children. Each term runs concurrent with the murder sentence.
       {¶ 4} On June 11, 2015, this court rejected appellant's claims and affirmed his
conviction. On October 7, 2015, appellant filed a motion for leave to file a delayed motion
for new trial accompanied by a motion for new trial. As noted above, the trial court
denied appellant's motion for new trial on December 4, 2015. Appellant filed an appeal to
the Supreme Court of Ohio, which denied jurisdiction. State v. Crockett, 144 Ohio St.3d
1428, 2015-Ohio-5225.
       {¶ 5} This court relies on the recitation of facts set forth in its June 11, 2015
decision:
              On February 12, 2012, Whitehall Police Officer Jerry Dillon
              responded to a report that an eight-month-old child was not
              breathing. As he approached the reported location of the
              incident, a woman waved at him and then ran inside an
              apartment. Officer Dillon ran after the woman into the
              apartment, in which he found a man, later identified as
              appellant, kneeling over a child who was wearing only a
              diaper, had vomit coming out of the right side of his mouth,
              and appeared to be "lifeless." (Tr. 39.) Upon noticing that the
              child was not breathing and did not have a pulse, Officer
              Dillon began performing chest compressions while
              simultaneously alerting medical personnel to the situation. A
              firefighter responded to Officer Dillon's report and told him to
              bring the child outside, as a medic was arriving on the scene.
              Officer Dillon ran outside and delivered the child to the
              medics.

              Whitehall Police Officer Anthony Fields also responded to the
              incident on February 12, 2012, arriving seconds after Officer
              Dillon. After Officer Dillon ran out of the house and delivered
              the child to the medics, Officer Fields remained at the
              apartment, where he spoke with the child's father, whom he
              identified as appellant. According to Officer Fields, appellant
              stated that the child's mother left the child in appellant's sole
              care while she left the apartment to go to the store. Appellant
              placed the child in a playpen and covered him with a blanket.
No. 15AP-1149 and 15AP-1152                                                     3

            Appellant later checked on the child, whereupon he noticed
            that the child was not breathing. Appellant took the child out
            of the playpen, removed the child's clothes, splashed water on
            the child's face, and began blowing in his mouth in an attempt
            to resuscitate him while he contacted the mother by phone.
            Appellant stated that the child had no prior health problems.
            Upon examining the apartment, Officer Fields noticed what
            appeared to be vomit in the bathroom sink.

            Doug Neighbarger, a paramedic and firefighter employed by
            the City of Whitehall Division of Fire, also responded to the
            report of a child having difficulty breathing on February 12,
            2012. Within two minutes of being dispatched, he arrived at
            the scene, received the child, whom he identified as I.C.,
            outside from a police officer, and proceeded to the hospital.
            En route to the hospital, Neighbarger and three other
            paramedics, who were in the back of the ambulance with I.C.,
            began working to revive him. I.C. did not have a heartbeat and
            was not breathing but had no noticeable external injuries.
            Neighbarger noted that he had a dirty diaper and vomit on his
            face. The paramedics were able to restore I.C.'s heartbeat
            through CPR and delivered him to the emergency room at
            Nationwide Children's Hospital approximately 30 minutes
            after being dispatched.

            Dr. David Rogers, a pediatric ophthalmologist at Nationwide
            Children's Hospital, examined I.C. on February 12, 2012
            around 7:30 p.m., and identified 15 to 20 retinal hemorrhages
            in the back of the left eye and 1 retinal hemorrhage in the back
            of the right eye. Dr. Rogers testified that "retinal hemorrhages
            can happen in all kinds of situations and diseases" but that
            "their location * * * both within the retina and throughout the
            eye can be very diagnostic of what actually caused them." (Tr.
            133-34.) He indicated that I.C.'s injuries were similar to those
            found in patients who had been in a fatal single impact motor
            vehicle accident or had fallen from a multiple story building
            but that the injuries were inconsistent with a short fall, such
            as from a bed or couch. Because the hemorrhages were
            located around the optic nerve and along the blood vessels,
            and there was no other sign of physical trauma to the eye, Dr.
            Rogers found that abusive head trauma was a potential cause
            of I.C.'s injury. Based upon I.C.'s history and the lack of other
            potential causes for the specific injury to I.C.'s eyes, Dr.
            Rogers concluded that the injury resulted from abusive head
            trauma.

            Dr. Rogers stated that "[t]here is absolutely no indication
            from this eye exam that I performed and which is documented
No. 15AP-1149 and 15AP-1152                                                     4

            photographically there is any possibility that this could be
            related to increased pressure in [I.C.'s] brain." (Tr. 141.) Dr.
            Rogers stated that the number, type, and location of the
            hemorrhages in I.C.'s eyes were inconsistent with an increase
            in intracranial pressure. Dr. Rogers sought further testing to
            determine whether I.C. had a bleeding disorder and noted
            that, if bleeding disorders were not found, then nonaccidental
            trauma should be considered as a potential cause of I.C.'s
            injuries. However, Dr. Rogers stated that the types of
            hemorrhages in I.C.'s eyes were not consistent with a bleeding
            disorder. Dr. Rogers also stated that he had seen retinal
            hemorrhages caused by CPR but that the hemorrhages found
            in I.C.'s eyes were inconsistent with those caused by CPR
            based upon studies of CPR performed by trained professionals
            and first responders in the community.

            On February 14, 2012, Dr. Lisa Martin, a pediatric radiologist
            at Nationwide Children's Hospital, examined an MRI of I.C.'s
            cervical spine, which is the area from the bottom of the skull
            to the shoulders, and I.C.'s thoracic spine, which is located
            near the chest of the patient. Dr. Martin found abnormal fluid
            in the cervical spine, which indicated a ligament injury. Dr.
            Martin indicated that this injury resulted from "significant
            force," such as in a motor vehicle accident or a similar
            whiplash-inducing event, or in the event of a fall from a third-
            story window or a tall tree. She also found relatively acute or
            recent compression fractures in I.C.'s seventh and ninth
            thoracic vertebrae, which are located approximately in the
            middle of the back. Dr. Martin stated that I.C.'s injuries could
            not have occurred while he was laying flat on his back, as
            would normally be the case if someone was performing CPR
            on him. Dr. Martin testified that I.C.'s injuries were consistent
            with either accidental or nonaccidental trauma but that she
            could not infer more based upon the radiological exam.

            On February 12, 2012, Dr. Brent Adler, a pediatric radiologist
            at Nationwide Children's Hospital, reviewed a portable chest
            x-ray of I.C. which was completed in the emergency
            department shortly after he arrived at the hospital. Based
            upon the initial chest x-ray, Dr. Adler was unable to find any
            problems with I.C.'s lungs and did not observe any fractures at
            the time. Next, Dr. Adler reviewed a lateral cervical spine film
            to ascertain whether the bones in the neck were properly
            aligned and found no abnormalities. Dr. Adler then reviewed
            a CT scan of I.C.'s head and found acute hemorrhages in the
            subdural area of the brain that had begun "within the last
            couple of days." (Tr. 269.) Dr. Adler stated that the kind of
            "relatively forceful bleeding" he observed in I.C.'s case
No. 15AP-1149 and 15AP-1152                                                      5

            reflected "some sort of trauma that caused tearing of the veins
            around the brain," resulting from events such as "car
            accidents, falls from great heights, nonaccidental trauma, or
            child abuse," or that it could happen if a person had a
            "propensity to bleeding." (Tr. 270-73.) Also, on February 12,
            2012, Dr. Adler reviewed an abdominal CT scan performed on
            I.C. and found a three and one-half centimeter laceration of
            the liver and a pattern that suggested shock bowel. Dr. Adler
            stated that he had read about instances where liver lacerations
            resulted from CPR, but he had never seen it happen.

            On February 13, 2012, Dr. Adler conducted a skeletal survey
            on I.C. and found no fractures. On February 14, 2012, Dr.
            Adler reviewed the skeletal survey again and, based upon Dr.
            Martin's review of I.C.'s MRI, identified fractures of I.C.'s
            spine that he had initially not seen. Dr. Adler concluded that
            I.C.'s fractures were consistent with the bleeding he observed
            in I.C.'s brain and that such injuries could result from a large
            amount of force that flexed the body forward. On March 15,
            2012, Dr. Adler reviewed another CT scan of I.C.'s head and
            observed extra fluid outside of the brain which indicated that
            the brain was shrinking as cells in the brain died. Dr. Adler
            indicated that the evolution of the injury to I.C.'s brain
            suggested that, "because the brain looked so normal on the
            initial study, * * * the injury must have been shortly before the
            initial study" on February 12, 2012. (Tr. 328.)

            Dr. Nicholas Zumberge, a pediatric radiologist at Nationwide
            Children's hospital, performed the first MRI of I.C.'s brain on
            February 13, 2012, which showed swelling and cell death
            occurring in the brain. Based upon the increase in the amount
            of fluid around the periphery of the brain between the time of
            the initial head CT scan taken on February 12, 2012 and the
            MRI on February 13, 2012, Dr. Zumberge concluded that the
            injury likely occurred within hours or a day of the initial CT
            scan. Dr. Zumberge also stated that a hypoxic ischemic injury,
            namely an injury involving cell death resulting from a lack of
            oxygen, was not consistent with the subdural hemorrhages
            found in I.C.'s brain.

            Based upon I.C.'s medical history, Dr. Zumberge concluded
            that it was "difficult to explain or nearly impossible to explain"
            I.C.'s injuries, specifically "retinal hemorrhages, subdural
            hemorrhages, and diffuse brain injury," in any manner other
            than "child abuse or nonaccidental trauma or abusive head
            injury, whatever term is used." (Tr. 432.) Dr. Zumberge also
            pointed to the liver laceration, shocky appearance of the
            bowel, compression fractures of the seventh and ninth
No. 15AP-1149 and 15AP-1152                                                    6

            thoracic vertebrae, and edema in the ligaments of the upper
            neck as evidence raising a suspicion of child abuse. Dr.
            Zumberge conceded that, although "there's a chance that this
            wasn't abusive injury or a traumatic injury, * * * when it
            comes to the [injury to the] neck, I don't know what else this
            could be." (Tr. 438.) Dr. Zumberge asserted that I.C.'s injuries
            were "the result of significant trauma with a pattern that is
            very suggestive of abuse, and a trauma that is not compatible
            with trauma that would occur during aggressive or vigorous
            resuscitative effort." (Tr. 441.)

            Dr. Bhuvana Setty, a pediatric hematologist and oncologist at
            Nationwide Children's hospital, reviewed I.C.'s lab results and
            determined that he did not have an underlying bleeding
            disorder.

            On February 12, 2012, Detective Steve Brown of the Whitehall
            Police Department interviewed I.C.'s parents at Nationwide
            Children's Hospital. I.C.'s father, whom Detective Brown
            identified as appellant, stated that I.C. fell from a bed about
            three days before February 12, 2012. Detective Brown later
            examined the bed that appellant claimed I.C. fell from and
            found that the bed was 18 inches from the floor, which was
            carpeted. According to Detective Brown, appellant claimed
            that I.C. was in good health with no apparent problems before
            the morning of February 12, 2012, when he stopped
            breathing. Appellant stated that he took I.C. out of bed that
            morning and that no one else had contact with I.C. until after
            he stopped breathing. After I.C. stopped breathing, appellant
            called I.C.'s mother, who was away from the home at a store.
            When she returned home from the store, I.C.'s mother called
            911.

            Dr. Mary Ranee Leder, attending physician in the Child
            Advocacy Center at Nationwide Children's Hospital, whose
            duties included assessing children in response to reports of
            potential sexual assault or child abuse, was responsible for
            examining I.C.'s case in this capacity. After beginning an
            examination of I.C.'s case, she was able to obtain a timeline of
            I.C.'s condition through speaking with his parents. According
            to Dr. Leder, both parents affirmed that I.C. was well the night
            before being admitted to the hospital and that, when I.C.
            awoke at 11:00 a.m. on February 12, 2012, appellant removed
            him from bed and placed him on his abdomen in bed while
            appellant played video games. At that time, I.C.'s mother
            observed that he appeared well, and then she departed the
            home to go to a store. After some period of time, appellant
            checked on I.C., at which point he noticed that he was not
No. 15AP-1149 and 15AP-1152                                                     7

            breathing. Appellant stated that he splashed water on the
            child and attempted resuscitation by beating on the child's
            chest with a closed fist, which he demonstrated for Dr. Leder.
            When the child did not respond, appellant called I.C.'s
            mother, who left the store, arrived home, and then called 911
            for help.

            Dr. Leder stated that I.C.'s injuries were inconsistent with a
            fall from a bed at a height of 18 inches onto a carpeted floor,
            as described by I.C.'s parents. Dr. Leder conducted a physical
            exam of I.C. and noted only minor external injuries. On
            February 13, 2012, Dr. Leder observed a subdural hemorrhage
            on the right side of I.C.'s brain and a three-centimeter liver
            laceration in her review of I.C.'s head CT scan, abdomen and
            pelvis CT scan, and skeletal survey, which she performed in
            conjunction with a pediatric radiologist. Dr. Leder stated that
            bleeding on the surface of the brain, like what she observed in
            I.C.'s    case,    could     be     caused     by     "repetitive
            acceleration/deceleration of the type seen with shaking, with
            or without impact," and that such shaking would be "vigorous
            shaking of the type where a reasonable caregiver observing it
            would say that this is an inappropriate way of handling an
            infant." (Tr. 623-24.) Dr. Leder stated that the ligament injury
            in I.C.'s neck and the compression fractures in the seventh
            and ninth thoracic vertebrae could be caused by repetitive
            acceleration and deceleration or vigorous shaking. Dr. Leder
            also discussed the intra-retinal hemorrhages in I.C.'s eyes
            with Dr. Rogers, who concluded that, having ruled out an
            underlying bleeding disorder, I.C.'s intra-retinal hemorrhages
            were consistent with nonaccidental trauma.

            Based upon her review of I.C.'s condition, his history, and her
            discussions with other physicians, Dr. Leder concluded that
            "the subdural hemorrhages, the retinal hemorrhages, and the
            vertebral fractures were unexplained" and that "[t]here was
            no medical condition" or "accidental history that would be
            explaining [the] presence of these findings" and, therefore,
            "these findings were consistent with nonaccidental trauma."
            (Tr. 643.) Dr. Leder stated that the trauma and injury to the
            brain resulted in difficulties with breathing and the
            subsequent lack of oxygen to vital organs, rather than a lack of
            breathing causing the injuries. She stated that her findings
            allowed for "the possibility, however remote, that the liver
            laceration could have been caused by [appellant's] reported
            resuscitative efforts." (Tr. 621.)

            Dr. Charles J. Lee, a deputy coroner and forensic pathologist
            at the Licking County Coroner's Office, performed an autopsy
No. 15AP-1149 and 15AP-1152                                                     8

            on I.C. after he died on December 14, 2012 while at a nursing
            facility specifically for children. Prior to death, I.C. was in a
            coma with no voluntary movement for several months. Dr.
            Lee testified that I.C. was a normal weight and length for his
            age of 18 months at the time he died and that there were no
            apparent external injuries. Upon undertaking an internal
            examination, Dr. Lee found that I.C.'s feeding tube had
            become dislodged from his stomach and that fluid was leaking
            into his abdominal cavity. Dr. Lee testified that I.C. died as a
            result of irritation resulting from the fluid in his abdominal
            cavity and peritonitis, which he defined as "inflammation of
            the bowel as well as the irritation of the heart causing it to
            rapidly beat and then misbeat and beat irregularly and then
            not beat at all." (Tr. 703.) He concluded that I.C.'s cause of
            death was "complications of the peritonitis because of the
            fluid that was leaking into his belly secondary to him being in
            a chronic comatose state secondary to the head trauma" and
            that the manner of death was homicide.

            Dr. Lee testified that, although I.C. was otherwise in very good
            health, his brain was small compared to the size of his skull,
            and that it weighed about one-third of a normal healthy brain
            for an average, healthy 18-month-old male. Because I.C.'s
            brain was about the size of a newborn's brain and much
            smaller than his skull, Dr. Lee concluded that I.C.'s brain
            regressed or shrank as a result of injury and death to the
            tissue. Dr. Lee found I.C.'s injuries to be consistent with
            abusive head trauma and a lack of oxygen from a significant
            global trauma affecting the entire brain at once. Dr. Lee found
            that there were no skull fractures present in I.C.'s case, but
            there was evidence of a subdural hemorrhage. Dr. Lee stated
            that bleeding in the brain was inconsistent with a sudden
            cessation of breathing unless there was trauma to the brain.
            Further, he stated that the injuries found in I.C.'s brain were
            inconsistent with sudden infant death syndrome ("SIDS") or
            short falls.

            At trial, appellant called Dr. Thomas W. Young, a forensic
            pathologist in private practice, to testify. Dr. Young formerly
            served as a medical examiner for the state of Georgia, and
            then as the Chief Medical Examiner for the counties of
            Jackson, Platte, Clay, and Cass in the state of Missouri. Dr.
            Young reviewed I.C.'s records and testified that, when the flow
            of oxygen is restored to the brain after a period of deprivation,
            the brain will become swollen and that blood vessels will leak
            resulting in subdural hemorrhages. He also stated that
            swelling in the brain can increase pressure in the veins in the
            backs of the eyes, causing retinal hemorrhages. Dr. Young
No. 15AP-1149 and 15AP-1152                                                            9

                further stated that performing CPR on an infant can result in
                a liver laceration.

                Dr. Young stated that I.C.'s condition was consistent with a
                condition called an apparent life-threatening event, which he
                defined as an instance where a child suddenly stops breathing,
                similar to SIDS, but is resuscitated. Dr. Young disagreed that
                abusive trauma in the form of shaking could cause the types of
                injuries found in I.C.'s case, including ligament injury and
                vertebral fractures.

State v. Crockett, III, 10th Dist. No. 14AP-242, 2015-Ohio-2351, ¶ 2-20.
II. ASSIGNMENTS OF ERROR
      {¶ 6} Appellant appeals assigning the following five errors for our review:
                [I.] The trial court abused its discretion and erred in denying
                appellants motion for leave to file delayed motion for new
                trial, Thus denying appellant due process guaranteed by the
                Ohio and United States Constitutions.

                [II.] Because appellant supported his new trial motion with
                evidence demonstrating substantive grounds for relief, the
                common Pleas court, in deciding appellants new trial motion
                without an evidentiary hearing, abused its discretion, Thus
                denying appellant due process guaranteed by the Ohio and
                United States Constitutions.

                [III.] Appellant is entitled to a fair trial and to be tried without
                the newly discovered evidence of Nationwide Childrens
                Hospitals complete medical records and the Nursing Home
                complete medical records of I.C. is a denial of fundamental
                fairness and other rights as guaranteed by the United States
                Constitution.

                [IV.] Trial court abused it's discretion and erred when it ruled
                appellants claim of ineffective assistance of trial counsels
                falure to investagate appellants case was barred by the
                doctrine of res judicata which denying appellants due process
                guaranteed by the Ohio and United States Constitutions.

                [V.] Trial court abused it's discretion and erred in never
                entering judgement if appellant was unavoidably prevented
                from discovering Nationwide Childrens Hospitals complete
                medical records of I.C. which denying appellant due process
                guaranteed by the Ohio and United States Constitutions.

(Sic passim.)
No. 15AP-1149 and 15AP-1152                                                              10

III. TRIAL COURT PROPERLY DENIED THE MOTION
       {¶ 7} This court, like the trial court, also finds appellant's appeal and underlying
motion for a new trial based on newly discovered evidence difficult to understand.
Consequently, we will address appellant's assignments of error one, two, three and five
together, and four separately.
       {¶ 8} Rule 33(A) of the Ohio Rules of Criminal Procedure governs motions for
new trial in criminal proceedings. Crim.R. 33(A) provides the grounds upon which a
defendant may receive a new trial. As relevant here, Crim.R. 33(A)(6) provides that a
defendant may be granted 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." Regarding the timing of a motion for new trial based on newly
discovered evidence, the rule states as follows:
              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.

Crim.R. 33(B). See also State v. Walden, 19 Ohio App.3d 141 (1oth Dist.1984).
       {¶ 9} Thus, if a defendant fails to file a motion for a new trial based on newly
discovered evidence within 120 days of the jury's verdict or the court's decision, he or she
must seek leave from the trial court to file a delayed motion. To obtain such leave, the
defendant must demonstrate by clear and convincing proof that he or she was
unavoidably prevented from discovering the evidence within the 120 days. See Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus (holding that clear and
convincing evidence is evidence which "will produce in the mind of the trier of facts a firm
belief or conviction as to the facts sought to be established."). A party is "unavoidably
prevented" from filing a motion for a new trial if the party had no knowledge of the
existence of the ground supporting the motion and could not have learned of that
existence within the time prescribed for filing the motion in the exercise of reasonable
diligence. See State v. Lee, 10th Dist. No. 05AP-229, 2005-Ohio-6374, ¶ 7; State v. Carr,
No. 15AP-1149 and 15AP-1152                                                                 11

10th Dist. No. 02AP-1240, 2003-Ohio-2947, ¶ 11. See also State v. Petro, 148 Ohio St. 505
(1947), syllabus (setting forth a six-part test for determining whether a motion for new
trial on the basis of newly discovered evidence should be granted, and holding that the
new evidence must "not merely impeach or contradict the former evidence.").
       {¶ 10} "We will not disturb a trial court's decision granting or denying a Crim.R. 33
motion for new trial absent an abuse of discretion." State v. Townsend, 10th Dist. No.
08AP-371, 2008-Ohio-6518, ¶ 8, citing State v. Schiebel, 55 Ohio St.3d 71, 76 (1990). "The
abuse of discretion standard of review also applies to Crim.R. 33(B) motions for leave to
file a delayed motion for new trial." Id. at ¶ 8. An abuse of discretion is more than an error
of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
       {¶ 11} Here, appellant failed to file his motion for new trial based upon newly
discovered evidence within 120 days after the verdict. Appellant filed his motion for leave
and motion for new trial more than 20 months after the verdicts. Given the clear and
convincing standard of proof, appellant was required to provide evidence that would
induce the firm belief or conviction that he was "unavoidably prevented." Schiebel at 74.
       {¶ 12} Appellant's claim, that he did not proximately cause the victim's death, and
that it was purportedly caused by medical providers at either the nursing facility and/or
the hospital, is similar to the defense he presented at trial, which the jury rejected. Thus,
there can be no serious dispute that the defense was aware of the victim's residence in a
nursing facility after departing the hospital.     There was evidence presented at trial
regarding the cause of the victim's death. The hospital's medical records were provided
during discovery and admitted into evidence. Knowledge of the victim's death at the
nursing facility was available to appellant. (See Tr. at 22, 29-33; 692-93, 723, 724, 726;
State's Ex. D1-2, E1-7, G.)
       {¶ 13} The newly discovered evidence upon which appellant relies is the medical
records from the nursing facility. The record does not support appellant's claim that these
records were not available. Dr. Charles J. Lee, deputy coroner and forensic pathologist at
the Licking County Coroner's Office, testified at trial that he performed an autopsy on the
child after he died on December 14, 2012 while at a nursing facility.
       {¶ 14} Appellant's motion also fails because he essentially concedes his knowledge
of the victim's nursing facility location by attaching an unidentified item titled "Prodgeny
No. 15AP-1149 and 15AP-1152                                                               12

Timeline Records," which noted that the victim's mother visited the victim at the facility.
Thus, it is not abuse of discretion for the trial court to believe that the defense was aware
of the victim's residence in a nursing facility.
         {¶ 15} Appellant knew or easily could have learned of all the information
supporting his current claim. He failed to demonstrate that he was unavoidably prevented
from discovering the evidence. The trial court correctly concluded that "the evidence upon
which the Defendant relie[d] upon for his motion for a new trial [was] not newly
discovered." (Dec. 4, 2015 Decision at 3.) That decision should be affirmed.
         {¶ 16} Additionally, appellant failed to show that he filed his motion for leave
within a reasonable time after discovering the evidence relied upon to support the motion
for new trial. State v. Woodward, 10th Dist. No. 08AP-1015, 2009-Ohio-4213, ¶ 14. While
appellant's affidavit provides how he came to learn about the information for which he
relied, appellant nonetheless failed to demonstrate that he had no knowledge of the
existence of the ground and could not have learned of its existence. In short, appellant's
affidavit provides insufficient explanation as to how he was unavoidably prevented from
timely discovering evidence that he could have learned prior to or during trial.
         {¶ 17} A " 'trial court may require a defendant to file his motion for leave to file
within a reasonable time after he discovers the evidence.' " State v. Berry, 10th Dist. No.
06AP-803, 2007-Ohio-2244, ¶ 37, quoting State v. Griffith, 11th Dist. No. 2005-T-0038,
2006-Ohio-2935, ¶ 15. Thus, even if a defendant has established that they were
unavoidably prevented from filing their motion for a new trial within the time limits, if
there was an "undue delay in filing the motion after the evidence was discovered, the trial
court must determine if that delay was reasonable under the circumstances or that the
defendant has adequately explained the reason for the delay." State v. Stansberry, 8th
Dist. No. 71004 (Oct. 9, 1997). See also State v. York, 2d Dist. No. 2000 CA 70 (Apr. 6,
2001).
         {¶ 18} Consequently, appellant's 20-month delay in filing his motions, raising
claims that he knew or could have known of before and during his trial, demonstrates his
failure to act with reasonable diligence in presenting this information to the trial court,
which may have permitted him to file an untimely motion for new trial. See Woodward at
¶ 15-17 (two-year delay from knowledge to filing unreasonable). See also Berry at ¶ 39-40
(five-year delay from availability of evidence unreasonable). The trial court did not abuse
No. 15AP-1149 and 15AP-1152                                                                 13

it's discretion in finding that the evidence upon which appellant relied for his motion for a
new trial was not newly discovered. Finally, appellant's failure to obtain leave by the trial
court to file his motion for a new trial precludes his ability to prevail in this matter. State
v. Lordi, 149 Ohio App.3d 627, 2002-Ohio-5517, ¶ 25 (Inasmuch as defendant filed his
motion well outside the 120-day period, he was required to obtain leave of court to file his
motion for new trial. Leave of court must be granted before the merits of the motion are
reached.).
IV. TRIAL COURT PROPERLY BARS CLAIM OF INEFFECTIVE ASSISTANCE
    OF COUNSEL

       {¶ 19} With regard to appellant's claim of ineffective assistance of counsel, the
same is barred by the doctrine of res judicata. Res judicata "bars any claim that was or
could have been raised at trial or on direct appeal." State v. Steffen, 70 Ohio St.3d 399
(1994). In fact, the trial court denied appellant's argument of ineffective assistance of
counsel. The basis for the ineffective assistance of counsel on appeal related to appellant
failing to object to certain questions, not the failure to introduce medical records from the
nursing facility. However, that argument could have been made.
       {¶ 20} Even if res judicata did not apply, appellant's claim of ineffective assistance
of counsel would still be meritless. Appellant's claim based on the failure to introduce
medical records from the nursing home is grounded in an erroneous legal premise. It is
well-established that "one who inflicts injury upon another is criminally responsible for
that person's death, regardless of whether different or more skillful medical treatment
may have saved his life." State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, ¶ 45. "[A]
defendant is not relieved of culpability for the natural consequences of inflicting serious
wounds on another merely because the victim later died of complications brought on by
the injury. * * * The injuries inflicted by the defendant need not be the sole cause of death,
as long as they constitute a substantial factor in the death." State v. Wilson, 10th Dist. No.
03AP-592, 2004-Ohio-2838, ¶ 18. The defendant's claim fails.
       {¶ 21} The coroner testified that the victim would not have died if appellant had
not caused the global brain injury, rendering the victim comatose, unable to breathe,
move, eat, drink or swallow on his own, and requiring medical intervention to breathe
and a feeding tube for nutrition. (See Tr. at 698-99, 700-02, 723, 724, 726.) As such, the
trial court's judgment is affirmed.
No. 15AP-1149 and 15AP-1152                                                           14

V. DISPOSITION
      {¶ 22} Based on the foregoing, appellant's five assignments of error are overruled.
Having overruled appellant's assignments of error, the judgment of the Franklin County
Court of Common Pleas is affirmed.
                                                                    Judgment affirmed.

                              TYACK, J., concurs.
                      DORRIAN, P.J., concurs in judgment only.
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