[Cite as State v. Green, 2013-Ohio-5327.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :               No. 13AP-260
                                                               (C.P.C. No. 08CR-6930)
v.                                                 :
                                                              (REGULAR CALENDAR)
James E. Green,                                    :

                 Defendant-Appellant.              :


                                            D E C I S I O N

                                    Rendered on December 5, 2013



                 Ron O'Brien, Prosecuting Attorney, and Michael P. Walton,
                 for appellee.

                 James E. Green, pro se.

                   APPEAL from the Franklin County Court of Common Pleas

O'GRADY, J.

        {¶ 1} Defendant-appellant, James E. Green, appeals from a March 11, 2013
judgment of the Franklin County Court of Common Pleas denying his February 1, 2013
"Motion for 52(B) and Motion for New Trial." For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On July 27, 2009, following a jury trial, appellant was convicted of felonious
assault with a firearm specification and having a weapon while under disability. The trial
court found appellant guilty of a repeat violent offender specification. State v. Green,
10th Dist. No. 09AP-972, 2010-Ohio-3838, ¶ 14 ("Green I"). These convictions stemmed
from the events of June 22, 2008, when Quentin Green and his girlfriend, Angela
McClain, were at a cookout at appellant's house. Appellant is Quentin's uncle. Appellant
and Quentin were in the backyard when they began arguing about the condition of the
No. 13AP-260                                                                                                 2


house, which the Green family had owned for years. Appellant was upset that his sisters
were not helping him keep up with the house, and appellant specifically identified
Quentin's mother as one who did not help with the house. Appellant shouted an insult
about Quentin's mother, and Quentin took offense. The two continued to argue until
appellant went into the house and came out with a rifle. Appellant then fired the rifle and
shot Quentin in the leg. State v. Green, 10th Dist. No. 11AP-526, 2012-Ohio-950, ¶ 2
("Green II").1
        {¶ 3} On February 1, 2013, appellant filed the instant "Motion for 52(B) and
Motion for New Trial." Appellant's motion was based on allegations of perjury and
prosecutorial misconduct. Appellant pointed out that Angela told a 911 operator directly
after the shooting that she did not see the shooter, and appellant claimed Angela told the
first police officer on the scene that she did not know what happened. Angela later told a
police detective that appellant shot Quentin and, on two occasions, told the detective that
appellant reloaded the rifle afterwards. Angela admitted on cross-examination that her
statements about appellant reloading the rifle were untrue.
        {¶ 4} Appellant contended that these inconsistencies are evidence that Angela
was lying when she identified appellant as the shooter to police and that she committed
perjury when she testified that appellant shot Quentin. Appellant further claimed that the
assistant prosecutor who presented the state's case knew Angela was lying and
committing perjury simply by virtue of knowing about her inconsistent statements. He
also accused the prosecutor of coercing Angela to lie and knowingly using her false and
perjured testimony to secure appellant's conviction.                     Based on these allegations,2
appellant requested that the trial court "reverse the earlier decision of guilty against [him]
and dismiss the charges and order a new trial." (R. 290, at 10.)
        {¶ 5} The trial court denied appellant's motion on March 11, 2013. In its entry,
the trial court noted that this court, in our decision on appellant's direct appeal from his
convictions, stated "[t]he trier of fact is in the best position to take into account the
inconsistencies in the evidence, as well as the demeanor and manner of the witnesses, and


1A more detailed recitation of the underlying facts appears in Green I at ¶ 2-13.
2Appellant also alleged that Quentin lied about him during or leading up to trial, but appellant did not direct
the trial court to a particular instance.
No. 13AP-260                                                                                3


to determine which witnesses are more credible. * * * Given the evidence presented at
trial, the jury did not lose its way or create a manifest miscarriage of justice." Green II at
¶ 12-13. Appellant timely appealed.
II. ASSIGNMENTS OF ERROR
       {¶ 6} Appellant presents us with the following assignments of error for review:
              First Assignment of Error:

              The trial court erred and abused judicial discretion to deny
              the motion for new trial without adjudicating Appellant's
              claim of prosecutorial misconduct.

              Second Assignment of Error:

              The trial court erred and abused judicial discretion to not
              order a hearing on Appellant's motion for new trial to
              determine if the prosecution deliberately suborned perjury
              from Quentin Green and Angela McClain or failed to correct
              the same.

For ease of discussion, we will consider appellant's assignments of error together.
III. DISCUSSION
       {¶ 7} Appellant is before this court on appeal from the trial court's denial of his
February 1, 2013 "Motion for 52(B) and Motion for New Trial." Appellant clarified in his
brief that the motion was "inadvertently titled under Ohio Crim. R. 52(B) when it should
have been titled under Ohio Crim. R. 33(B)." (Appellant's brief, at 3.) Therefore, we will
proceed with our analysis under the law governing motions filed pursuant to Crim.R. 33.
       {¶ 8} 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. Schiebel, 55 Ohio St.3d 71, 76
(1990). An abuse of discretion exists when the trial court's attitude in reaching its
judgment was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219 (1983).
       {¶ 9} Crim.R. 33(B) provides:
              Motion for new trial; form, time. Application for a new
              trial shall be made by motion which, except for the cause of
              newly discovered evidence, shall be filed within fourteen days
              after the verdict was rendered, or the decision of the court
              where a trial by jury has been waived, unless it is made to
No. 13AP-260                                                                               4


              appear by clear and convincing proof that the defendant was
              unavoidably prevented from filing his motion for a new trial,
              in which case the motion shall be filed within seven days from
              the order of the court finding that the defendant was
              unavoidably prevented from filing such motion within the
              time provided herein.

               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.

       {¶ 10} Under Crim.R. 33(B), a motion for new trial must be made within 14 days
after the verdict was rendered or, when the motion concerns newly discovered evidence,
within 120 days after the day the verdict was rendered. Because appellant filed his motion
well outside the 120-day period, he was required to obtain leave from the trial court to file
his motion for new trial. "Leave of court must be granted before the merits of the motion
are reached." State v. Gover, 10th Dist. No. 12AP-777, 2013-Ohio-3366, ¶ 10, citing State
v. Lordi, 149 Ohio App.3d 627, 2002-Ohio-5517, ¶ 25 (7th Dist.). The moving party must
prove unavoidable delay by clear and convincing evidence in order to obtain leave. State
v. Bates, 10th Dist. No. 09AP-583, 2009-Ohio-6422, ¶ 13; Crim.R. 33(B). Unavoidable
delay results when the party had no knowledge of the existence of the ground supporting
the motion for new trial and could not have learned of the existence of that ground within
the time prescribed for filing the motion for new trial in the exercise of reasonable
diligence. State v. Walden, 19 Ohio App.3d 141, 146 (10th Dist.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.
       {¶ 11} Appellant's motion for new trial was untimely by several years. He did not
seek leave from the trial court to file his motion, nor did he allege that he was unavoidably
prevented from filing his motion in a timely manner. We also note that the allegations in
No. 13AP-260                                                                              5


appellant's motion were based on information that was available to him before and during
trial. On appeal, appellant confirmed this by only relying on the trial court record to
support his claims of perjury and prosecutorial misconduct. There is no indication that
appellant lacked knowledge of the existence of the grounds supporting his motion and
that he could not have learned of the existence of the grounds in a timely manner with the
exercise of reasonable diligence. For all these reasons, the trial court did not abuse its
discretion in denying appellant's motion for new trial.         Accordingly, we overrule
appellant's first assignment of error.
       {¶ 12} Because appellant failed to comply with the requirements of Crim.R. 33, we
do not find error with the trial court's decision to deny appellant's motion without holding
a hearing to explore the merits of the motion. See Lordi at ¶ 25 ("Leave must be granted
before the merits are reached."). Accordingly, we overrule appellant's second assignment
of error.
IV. CONCLUSION
       {¶ 13} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.

                          BROWN and McCORMAC, JJ., concur.

              McCORMAC, J., retired, formerly of the Tenth Appellate
              District, assigned to active duty under authority of the Ohio
              Constitution, Article IV, Section 6(C).
