[Cite as State v. Westerfield, 2016-Ohio-4633.]


                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                     No. 16AP-85
v.                                                 :             (C.P.C. No. 06CR-5723)

Eric R. Westerfield,                               :           (REGULAR CALENDAR)

                 Defendant-Appellant.              :




                                             D E C I S I O N

                                       Rendered on June 28, 2016


                 On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
                 Taylor, for appellee.

                 On brief: Eric R. Westerfield, pro se.

                   APPEAL from the Franklin County Court of Common Pleas

DORRIAN, P.J.
        {¶ 1} Defendant-appellant, Eric R. Westerfield, appeals the January 19, 2016
judgment entry of the Franklin County Court of Common Pleas denying his motion for a
new trial. For the following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} As we have reviewed this matter in two prior appeals, we shall limit our
discussion of the factual and procedural history of this case to that which is relevant to the
instant appeal. See State v. Westerfield, 10th Dist. No. 07AP-1072, 2008-Ohio-4458
("Westerfield I"); State v. Westerfield, 10th Dist. No. 13AP-286, 2013-Ohio-4216
("Westerfield II").
        {¶ 3} In 2007, a jury found appellant guilty of one count of rape of a victim less
than ten years of age, in violation of R.C. 2907.02. The trial court sentenced appellant to
No. 16AP-85                                                                                2


life in prison and classified him as a sexual predator. Westerfield I at ¶ 12. On appeal,
appellant alleged that the trial court improperly allowed the state to amend his
indictment, that he received ineffective assistance of counsel, and that his conviction was
against the manifest weight of the evidence. We rejected appellant's arguments and
affirmed his conviction and sentence. Id. at ¶ 41.
       {¶ 4} In 2013, appellant filed in the trial court a "Motion to Vacate Registration
and Classification." Westerfield II at ¶ 3. In his motion, appellant argued that his sentence
should be vacated and that he should be resentenced under the version of Ohio's sexual
predator law in effect at the time he committed the offense. The trial court denied
appellant's motion. On appeal, appellant alleged that the trial court failed to comply with
former R.C. 2950.09(B)(2) because it failed to provide him notice of the sexual predator
classification hearing that was held at the time of his sentencing in 2007. We rejected
appellant's arguments and affirmed the trial court's denial of his motion. Id. at ¶ 8.
       {¶ 5} On November 12, 2015, appellant filed a motion for a new trial pursuant to
Crim.R. 33. On November 27, 2015, plaintiff-appellee, State of Ohio, filed a memorandum
contra appellant's motion for a new trial, arguing that appellant's motion was untimely
and filed without leave of court. On January 19, 2016, the trial court filed a judgment
entry denying appellant's November 12, 2015 motion.
II. Assignments of Error
       {¶ 6} Appellant appeals and assigns the following two assignments of error for
our review:
              [I.] The trial court committed prejudicial error in withholding
              credible evidence.

              [II.] Appellant was denied effective assistance of counsel.

As appellant's assignments of error are interrelated, we address them together.
III. Discussion
       {¶ 7} In his first assignment of error, appellant asserts that prejudicial error
occurred due to the withholding of exculpatory evidence. In his second assignment of
error, appellant asserts that he was denied effective assistance of counsel.
       {¶ 8} We apply an abuse of discretion standard when reviewing a trial court's
decision on a motion for a new trial under Crim.R. 33. State v. Anderson, 10th Dist. No.
No. 16AP-85                                                                             3


12AP-133, 2012-Ohio-4733, ¶ 9, citing State v. Townsend, 10th Dist. No. 08AP-371, 2008-
Ohio-6518. The abuse of discretion standard of review also applies when reviewing a
motion for leave to file a delayed motion for a new trial under Crim.R. 33(B). Townsend at
¶ 8, citing State v. Pinkerman, 88 Ohio App.3d 158, 160 (4th Dist.1993). "The term 'abuse
of discretion' connotes more than an error of law or judgment; it implies that the court's
attitude is unreasonable, arbitrary or unconscionable." (Citations omitted.) Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983).
      {¶ 9} Here, appellant premised his motion for a new trial on newly discovered
evidence under Crim.R. 33(A)(6). Crim.R. 33(A) provides in pertinent part:
              A new trial may be granted on motion of the defendant for any
              of the following causes affecting materially his substantial
              rights:

              ***

              (6) When new evidence material to the defense is discovered
              which the defendant could not with reasonable diligence have
              discovered and produced at the trial. When a motion for a
              new trial is made upon the ground of newly discovered
              evidence, the defendant must produce at the hearing on the
              motion, in support thereof, the affidavits of the witnesses by
              whom such evidence is expected to be given, and if time is
              required by the defendant to procure such affidavits, the court
              may postpone the hearing of the motion for such length of
              time as is reasonable under all the circumstances of the case.
              The prosecuting attorney may produce affidavits or other
              evidence to impeach the affidavits of such witnesses.

      {¶ 10} Crim.R. 33(B) provides in pertinent part:

              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.
No. 16AP-85                                                                                  4


Thus, pursuant to Crim.R. 33(B), a defendant must complete a two-step procedure when
attempting to file a motion for a new trial outside of the 120-day deadline. " 'In the first
step, the defendant must demonstrate that he was unavoidably prevented from
discovering the evidence relied upon to support the motion for new trial.' " State v.
Howard, 10th Dist. No. 15AP-161, 2016-Ohio-504, ¶ 48, quoting State v. Bethel, 10th
Dist. No. 09AP-924, 2010-Ohio-3837, ¶ 13. "In the second step, if the defendant does
establish unavoidable prevention by clear and convincing evidence, the defendant must
file the motion for new trial within seven days from the trial court's order finding
unavoidable prevention." Id., citing Bethel at ¶ 13, citing State v. Woodward, 10th Dist.
No. 08AP-1015, 2009-Ohio-4213.
       {¶ 11} "A defendant demonstrates he was unavoidably prevented from discovering
the new evidence within the 120-day time period for filing a motion for new trial when the
defendant 'had no knowledge of the evidence supporting the motion for new trial and
could not have learned of the existence of the evidence within the time prescribed for
filing such a motion through the exercise of reasonable diligence.' " Id. at ¶ 49, quoting
Bethel at ¶ 13, citing State v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-2244, ¶ 19.
"Clear and convincing proof that the defendant was 'unavoidably prevented' from filing
'requires more than a mere allegation that a defendant has been unavoidably prevented
from discovering the evidence he seeks to introduce as support for a new trial.' " State v.
Lee, 10th Dist. No. 05AP-229, 2005-Ohio-6374, ¶ 9, quoting State v. Mathis, 134 Ohio
App.3d 77, 79 (1st Dist.1999). "The standard of 'clear and convincing evidence' is defined
as 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
in criminal cases, and that will produce in the mind of the trier of fact a firm belief or
conviction as to the facts sought to be established." Townsend at ¶ 7, citing Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
       {¶ 12} In addition to demonstrating that he or she was unavoidably prevented
from discovering the new evidence relied on to support the motion for a new trial, the
defendant must show that he or she filed a motion for leave within a reasonable time after
discovering the evidence relied on to support the motion for a new trial. Woodward at
¶ 15, citing Berry at ¶ 37. If there exists a significant delay, the trial court must determine
No. 16AP-85                                                                                                 5


whether the delay was reasonable under the circumstances or whether the defendant has
adequately explained the reason for the delay. Id., citing Berry at ¶ 37.
        {¶ 13} In order to warrant the granting of a motion for a new trial in a criminal
case based on newly discovered evidence, the defendant must demonstrate 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.' " Berry at ¶ 21, quoting State v. Petro, 148 Ohio St. 505 (1947), syllabus.
        {¶ 14} Here, the jury rendered its verdict on November 9, 2007. Appellant filed his
motion for a new trial more than 8 years later on November 12, 2015. Therefore, since
appellant sought a new trial under Crim.R. 33 outside of the 120-day deadline for new
evidence, he was required to file a motion for leave demonstrating by clear and convincing
evidence that he was unavoidably prevented from discovering the evidence relied on to
support the motion for new trial. Crim.R. 33(B); Howard at ¶ 48. Appellant, however, did
not seek leave to file his motion for a new trial and did not provide any evidence
demonstrating that he was unavoidably prevented from discovering the new evidence
alleged in his motion. Therefore, we find that the trial court did not abuse its discretion in
concluding that appellant failed to demonstrate by clear and convincing evidence that he
was unavoidably prevented from filing a motion for a new trial within the timeframe
contemplated by Crim.R. 33(B).
        {¶ 15} Furthermore, appellant appears to argue on appeal that the state withheld
exculpatory evidence and that his trial counsel was ineffective. However, as appellant
failed to argue such issues in his motion before the trial court, he has forfeited any right to
raise them on appeal.1 Westerfield II at ¶ 7, citing State v. Parsley, 10th Dist. No. 09AP-
612, 2010-Ohio-1689, ¶ 18.

1 In his motion for a new trial, appellant alleged simply: "Defendant has discovered that there are juvenile
records of the alleged victim that will sustain and confirm his ongoing defense of innocence in the case sub
judice. Reasonable jurists would concur that the alleged victim has duplicated the charges as set forth in the
Franklin Juvenile Court against multiple parties.

Wherefore, the mitigating factors herein, Defendant respectfully requests this Court to issue a writ and
subpoena the Franklin County Juvenile Court records to obtain the evidence of actual innocence in this
instant matter." (Emphasis omitted.) (Nov. 12, 2015 Mot.)
No. 16AP-85                                                                                6


      {¶ 16} Accordingly, we overrule appellant's first and second assignments of error.
IV. Conclusion
      {¶ 17} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                     Judgment affirmed.
                          TYACK and HORTON, JJ., concur.
