[Cite as State v. Clark, 2012-Ohio-2434.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )
V.                                               )          CASE NO. 11 MA 38
                                                 )
DAMON CLARK, JR.,                                )                OPINION
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Mahoning County, Ohio
                                                 Case No. 07CR635A

JUDGMENT:                                        Affirmed

APPEARANCES:
For Plaintiff-Appellee                           Paul Gains
                                                 Prosecutor
                                                 Ralph M. Rivera
                                                 Assistant Prosecutor
                                                 21 W. Boardman St., 6th Floor
                                                 Youngstown, Ohio 44503

For Defendant-Appellant                          Damon K. Clark, Jr., Pro-se
                                                 #541-878
                                                 Toledo Correctional Institution
                                                 2001 E. Central Ave.
                                                 Toledo, Ohio 43608



JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro


                                                 Dated: May 30, 2012
[Cite as State v. Clark, 2012-Ohio-2434.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, Damon Clark, appeals from a Mahoning County
Common Pleas Court judgment denying his Motion for Leave to File a Motion for
New Trial.
        {¶2}     We set out the facts of this case in appellant’s direct appeal:

                 On May 5, 2007, appellant left a party to visit his cousin, Joseph
        Moreland, at his house on Stewart Street in Youngstown, Ohio. Due to
        a conflict between appellant and another guest, Joseph Moreland told
        appellant to leave his home. Joseph pushed appellant causing him to
        fall and land in a children's power vehicle. Joseph Moreland and
        appellant then argued.
                 Appellant then left driving a blue Buick that belonged to the
        mother of his children but that he often drove. Appellant dropped his
        brother, Kevon Moreland, and his cousin, Lewon Bell, back off at the
        party they had previously attended. Rather than reentering the party as
        intended, appellant left with Stoney Williams, who had approached the
        Buick. (Kevon Moreland and Lewon Bell had both witnessed Stoney
        Williams carrying a gun at the party earlier.) Appellant then picked up
        Stoney Williams' friend, Darryl Mason, who thought he was being
        transported to the party. However, appellant drove toward Stewart
        Street instead.
                 At the time, Joseph Moreland was standing on his front porch
        speaking to his cousin, Jean Madison, and his aunt, Angela Moreland,
        who was holding the hand of her three-year-old niece, Cherish
        Moreland. They had walked over to his house when they heard him
        arguing with someone on the telephone. Joseph Moreland was
        concerned because, from statements appellant made when he left the
        house and additional statements he made over the telephone, it
        seemed appellant was threatening to come back shooting.
                                                                              -2-


               Appellant soon drove down Stewart Street. As the car passed
       the house, Stoney Williams sat on the door frame of the passenger
       window and fired two shots across the roof of appellant's vehicle
       towards Joseph Moreland's house. A bullet grazed Angela Moreland
       and passed through Cherish's head. Notwithstanding the bullet hole
       through the back of her head, she awoke crying at the scene.
       Regrettably, Cherish died less than two days later.

State v. Clark, 7th Dist. No. 08-MA-15, 2009-Ohio-3328, ¶¶2-5.
       {¶3}    Appellant was convicted of complicity to murder and complicity to
knowingly discharging a firearm into or at a habitation with firearm specifications.
The trial court sentenced him to 25 years to life in prison. On appeal, we affirmed
appellant’s conviction and sentence. Id.
       {¶4}    On September 4, 2009, appellant filed a pro se motion for new trial
asserting that he had newly discovered evidence. Appellant did not state what the
evidence was and did not attach a supporting affidavit. The trial court did not rule on
this motion.
       {¶5}    On June 21, 2010, appellant filed a pro se motion for new trial on new
evidence. This time he attached a letter from Gerald Johnson. In the letter, Johnson
stated “Stoney,” appellant’s co-defendant, told him about the shooting and that
“Littles,” whom he come to learn was appellant, was not involved. The letter was not
an affidavit. The trial court denied appellant’s motion.
       {¶6}    On January 26, 2011, appellant, this time through counsel, filed a
motion for leave to file a motion for a new trial based upon newly discovered
evidence. This time Johnson’s affidavit was attached to the motion. In the affidavit,
Johnson stated that he was at the scene and witnessed Joseph Moreland with a mini
assault rifle and heard shots fired.
       {¶7}    The trial court held a hearing on appellant’s motion. Appellant called
Johnson to testify in support of his motion. The court concluded that appellant did
not show by clear and convincing evidence that he was unavoidably prevented from
                                                                                -3-


timely filing his motion. It further concluded that appellant did not show that he was
unable to discover the new evidence and could not have learned of the new evidence
since allegedly appellant and Johnson were both present at the time of the incident.
Consequently, the court overruled appellant’s motion for leave.
      {¶8}      Appellant filed a timely notice of appeal on March 3, 2011.
      {¶9}      Appellant, once again acting pro se, raises a single assignment of error,
which states:

                THE    TRIAL    COURT       ERRORED       AND     ABUSED      ITS
      DISCRETION ON DENYING LEAVE TO FILE A DELAYED MOTION
      FOR NEW TRIAL IN VIOLATION OF THE FIFTH AND FOURTEENTH
      AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
      ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

      {¶10} Appellant argues that his due process rights were violated when the
trial court denied his motion for a new trial based on newly discovered evidence.
Appellant claims that since the time of his trial, he learned that Gerald Johnson was
present on the night of the shooting and did not come forward due to threats.
Appellant further asserts that he demonstrated by clear and convincing proof that he
was unavoidably prevented from filing his motion for new trial in a timely fashion.
      {¶11} A trial court's decision to grant or deny a new trial on grounds of newly
discovered evidence falls within the court's sound discretion. State v. Hawkins, 66
Ohio St.3d 339, 350, 612 N.E.2d 1227 (1993). Therefore, we will not reverse such a
decision absent an abuse of discretion. Abuse of discretion connotes more than an
error of law or judgment; it implies the trial court's judgment was arbitrary,
unreasonable, or unconscionable. State v. Adams, 62 Ohio St. 151, 157, 56 N.E.2d
654 (1980).
       {¶12} In this case, the trial court denied appellant leave to file a delayed
motion for new trial. Thus, we must examine the timeliness of appellant's motion.
                                                                                -4-


       {¶13} Crim.R. 33(B) addresses timeliness when the basis of a new trial
motion is newly discovered evidence:

       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.

       {¶14} Because appellant's motion was filed well outside the 120-day period,
he was required to obtain leave of court to file his motion for new trial.
       {¶15} Leave of court must be granted before the merits of the motion are
reached. State v. Lordi, 149 Ohio App.3d 627, 2002-Ohio-5517, 778 N.E.2d 605,
¶25 (7th Dist.).     The moving party must prove unavoidable delay by clear and
convincing evidence in order to obtain leave. Id. at ¶26; Crim.R. 33(B). Unavoidable
delay results when the party had no knowledge of the existence of the ground
supporting the motion for a new trial and could not have learned of the existence of
that ground within the required time in the exercise of reasonable diligence. Id. citing,
State v. Walden, 19 Ohio App.3d 141, 146, 1483 N.E.2d 859 (1984).                     The
requirement of clear and convincing evidence puts the burden on the defendant to
prove he was unavoidably prevented from discovering the evidence in a timely
manner. State v. Fortson, 8th Dist. No. 82545, 2003-Ohio-5387, ¶12.
       {¶16} Johnson testified at the hearing on appellant’s motion for leave.
Johnson stated that he met appellant at the Mahoning County Jail. (Tr. 5). Johnson
stated that he was present on Stewart Street when the shooting took place. (Tr. 6).
However, he stated that he did not tell anyone what he saw until recently because
                                                                                -5-


Joseph Moreland threatened him. (Tr. 6). He stated that in the late summer or fall of
2010, he told appellant that he had been present on the night in question. (Tr. 8).
Johnson stated that he was coming forward now because Moreland and many of his
“associates” are “locked up” now. (Tr. 13). On cross examination, Johnson stated
that he was arrested on April 28, 2010, and that he met appellant a few days later in
jail. (Tr. 9-10).
         {¶17} Based on the timing of the motion and Johnson’s testimony, the trial
court did not abuse its discretion in denying appellant leave to file a motion for new
trial.
         {¶18} Firstly, Johnson testified he informed appellant in the late summer or
early fall that he was present on the night of the shooting. But this was inaccurate.
Appellant filed a pro se motion alleging newly discovered evidence on June 21, 2010,
and attached a letter from Johnson.         Thus, appellant clearly knew of this “new”
evidence at least as early as June 2010.
         {¶19} Secondly, despite his knowledge of this “newly discovered” evidence in
June of 2010, appellant did not obtain Johnson’s affidavit until four months later on
October 29, 2010. Then appellant waited another three months to file a motion for
leave to file a motion for new trial. In total, appellant waited seven months to file his
motion for leave to file a motion for new trial.
         {¶20} Thirdly, if Johnson was in fact present at the scene as he now claims,
appellant should have been able to discover his testimony much sooner because
appellant was likewise present.
         {¶21} Given the above circumstances appellant did not meet his burden of
proving that he was unavoidably prevented from discovering the evidence by clear
and convincing evidence.        Moreover, appellant’s delay in filing the motion was
unreasonable under the circumstances.
         {¶22} Accordingly, appellant’s sole assignment of error is without merit.
         {¶23} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
                         -6-



Vukovich, J., concurs.

DeGenaro, J., concurs.
