[Cite as State v. Green, 2010-Ohio-6271.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )
V                                                )          CASE NO. 10 MA 43
                                                 )
KEVIN L. GREEN SR.,                              )                OPINION
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Mahoning County, Ohio
                                                 Case No. 99CR893(C)

JUDGMENT:                                        Affirmed

APPEARANCES:
For Plaintiff-Appellee                           Paul Gains
                                                 Prosecutor
                                                 Ralph Rivera
                                                 Assistant Prosecutor
                                                 21 W. Boardman St., 6th Floor
                                                 Youngstown, Ohio 44503-1426

For Defendant-Appellant                          Kevin L. Green, Sr. pro-se
                                                 Toledo Correctional Institution
                                                 #A399-990
                                                 2001 East Central Avenue
                                                 P.O. Box 80033
                                                 Toledo, Ohio 43608-0033


JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite


                                                 Dated: December 13, 2010
[Cite as State v. Green, 2010-Ohio-6271.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, Kevin Green, Sr., appeals from a Mahoning
County Common Pleas Court decision overruling his motion for leave to file a
delayed motion for new trial pursuant to Criminal Rule 33(a)(6).
        {¶2}     This case has been before us numerous times. We laid out the
following statement of facts in appellant's direct appeal.
        {¶3}     “On the night of September 17, 1999, John Allen, the victim, was at an
apartment building located at 1515 Market Street, Youngstown, Ohio. Green, William
Robinson, Jeron Hunter, and Lamar Logan were also at this apartment building.
Sometime during that night, Allen told Robinson that he was planning to rob Green.
(Tr. 595). Robinson reported this information to Green which resulted in Green asking
Robinson to get him a gun. (Tr. 597). Robinson left the apartment building and later
returned with a gun. Once Green had the gun, he and Robinson confronted Allen
about Allen's plan to rob Green. During the confrontation, Robinson hit Allen because
it looked as if Allen had a gun. Green, Hunter, and Logan also began hitting Allen.
(Tr. 604).
        {¶4}     “According to Robinson, the beating of Allen continued to ensue for
several minutes. (Tr. 606). Robinson claims that Green tied up Allen and with the
help of Hunter carried Allen to Green's car where they placed him in the trunk. (Tr.
607). It is claimed that Green, Hunter and Robinson then went to Lincoln Park,
Youngstown, Ohio, where Allen was fatally shot six times in the head. (Tr. 356, 369).
The testimony does not reveal who had the gun in Lincoln Park or who shot Allen.
Logan, Hunter and Robinson all entered plea agreements with the state to testify
against Green.” State v. Green, 7th Dist. No. 01CA54, 2003-Ohio-3074, ¶2-3.
        {¶5}     A jury found appellant guilty of complicity to commit aggravated murder
and kidnapping. The trial court sentenced appellant to life in prison for complicity to
commit murder and ten years for kidnapping. This court affirmed that judgment.
Green, 7th Dist. No. 01CA54.
        {¶6}     Appellant filed a motion for new trial and evidentiary hearing asserting
he had newly discovered evidence. The trial court denied these motions. On appeal,
                                                                                       -2-


we reversed and remanded the matter for an evidentiary hearing. State v. Green, 7th
Dist. No. 05-MA-116, 2006-Ohio-3097. Eventually, however, the supposed author of
the newly discovered evidence affidavit denied ever writing it, and appellant withdrew
his motion.
       {¶7}   On November 12, 2009, appellant moved for leave to file a delayed
motion for new trial pursuant to Criminal Rule 33(A)(6), based on newly discovered
evidence in the form of statements and affidavits from co-defendant Hunter. The trial
court overruled that motion on December 4, 2009.
       {¶8}   On March 9, 2010, appellant filed a notice of appeal. This court granted
appellant leave to file a delayed appeal after finding the trial court’s judgment entry
overruling his “request for leave to file a delayed motion for new trial pursuant to
Criminal Rule 33(a)(6)” was sent to his former trial counsel, and he was unaware of it
until two months after its entry.
       {¶9}   Appellant, acting pro se, now raises three assignments of error, the first
of which states:
       {¶10} “THE TRIAL COURT ERRED IN OVER-RULING THE APPELLANT[']S
MOTION FOR [LEAVE TO FILE A DELAYED MOTION FOR] NEW TRIAL WITHOUT
AN EVIDENCE HEARING. IN VIOLATION OF THE APPELLANT'S FIFTH, SIXTH,
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.”
       {¶11} Appellant argues that the trial court erred in overruling his motion for
leave to file a delayed motion for new trial.           For support, appellant relies on
statements and affidavits from co-defendant Hunter.              In these statements and
affidavits, Hunter stated that he and appellant were not at Lincoln Park on the night of
the murder. The statements and affidavits are dated May 4, 2000, November 3, 2003,
and April 17, 2005. Appellant argues that Hunter’s statements and affidavits are
newly discovered evidence that significantly contradict the testimony of the state's
witnesses predicating a different result at trial, if a new trial is granted.
       {¶12} Regarding why appellant was unavoidably prevented from discovering
this evidence and filing a timely motion, he lists three reasons.               First, appellant
                                                                                -3-


himself did not “stumble upon” the May 22, 2000 supplement to discovery until 2009.
Hence, appellant implies that such evidence is newly discovered to him. Second,
appellant argues that witness intimidation prevented Hunter from originally telling the
truth, and such intimidation was documented in the evidence itself. Appellant cites
the supplement to discovery file-stamped May 22, 2000, which contains a letter from
Hunter in which Hunter described being intimidated by the police and co-defendant
Robinson. Third, appellant alleges that because the state failed to find the specifics
of what Hunter lied about, appellant was unavoidably prevented from discovering the
evidence and filing his motion within a reasonable time.
       {¶13} 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
(1993), 66 Ohio St.3d 339, 350. 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 (1980), 62 Ohio St. 151, 157.
       {¶14} 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.
       {¶15} Crim.R. 33(B) addresses timeliness when the basis of a new trial
motion is newly discovered evidence:
       {¶16} “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.”
       {¶17} 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. Leave of court
                                                                                 -4-


must be granted before the merits of the motion are reached. State v. Lordi, 149
Ohio App.3d 627, 2002-Ohio-5517, at ¶25.
       {¶18} “To obtain leave, unavoidable delay must be proved by clear and
convincing evidence. Crim.R. 33(B). ‘[A] party is unavoidably prevented from filing a
motion for new trial if 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 time prescribed for filing the motion for new trial in the exercise
of reasonable diligence.’ State v. Walden (1984), 19 Ohio App.3d 141, 146, 19 OBR
230, 483 N.E.2d 859.” Id. at ¶26. 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, at ¶12.
       {¶19} Further, any delay in filing the motion must have been reasonable
under the circumstances. State v. Unsworth, 10th Dist. Nos. L-09-1205, L-09-1206,
2010-Ohio-398, at ¶18.
       {¶20} Appellant did not file his motion for leave to file a delayed motion for
new trial until eight years after his jury trial. In his motion, he admitted he learned of
the new evidence “shortly there-after [sic.]” his February 2001 trial. Thus, the eight-
year delay was clearly unreasonable.
       {¶21} Additionally, appellant, through his counsel, was aware of Hunter's
letter because it was included in the supplement to discovery on May 22, 2000, nine
months before trial.    According to that letter, Hunter was even willing to give a
statement at that time. Given Hunter's willingness, with due diligence appellant could
have uncovered the related information contained in Hunter's subsequent affidavits.
Thus, even though appellant himself may not have “stumbled upon” the evidence
until later, there is no clear and convincing evidence that anything prevented him
from discovering such evidence at the time of the trial. Therefore, it is not “newly
discovered” pursuant to Criminal Rule 33.
                                                                                -5-


       {¶22} Therefore, the trial court did not abuse its discretion when it denied
appellant's motion for leave.     Accordingly, appellant's first assignment of error is
without merit.
       {¶23} Appellant's second assignment of error states:
       {¶24} “THE STATE ERRED IN VIOLATING THE TRIAL COURT[']S
SEPARATION ORDER, DENYING THE APPELLANT A FAIR TRIAL UNDER THE
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.”
       {¶25} Appellant argues that the state violated his right to a fair trial under the
Fourteenth Amendment when it failed to enforce a separation order and allowed his
co-defendants to be housed in the same pod in the county jail.
       {¶26} “Under the doctrine of res judicata, a final judgment of conviction bars
the convicted defendant from raising and litigating in any proceeding, except an
appeal from that judgment, any defense or any claimed lack of due process that was
raised or could have been raised by the defendant at the trial which resulted in that
judgment of conviction or on an appeal from that judgment.” State v. Perry (1967),
10 Ohio St.2d 175, 180.
       {¶27} Because appellant could have raised this issue at trial or in his direct
appeal, res judicata bars him from raising it now.           Thus, appellant's second
assignment of error is without merit.
       {¶28} Appellant's third assignment of error states:
       {¶29} “THE TRIAL COURT ERRED IN ALLOWING THE CONDITIONAL
RELEASE OF WITNESSES MATERIAL TO THE OUTCOME OF THE TRIAL. A
VIOLATION        OF   THE   APPELLANT'S      FIFTH,    SIXTH,    AND    FOURTEENTH
AMENDMENTS OF THE UNITED STATES CONSTITUTION.”
       {¶30} Appellant argues that the trial court erred in allowing the conditional
release of material witnesses at trial.
       {¶31} Once again, because appellant could have raised this issue at trial or in
his direct appeal, res judicata bars him from raising it now. Thus, appellant's third
assignment of error is without merit.
                                                                      -6-


      {¶32} For the above stated reasons, the trial court’s judgment is hereby
affirmed.


Vukovich, P.J., concurs.

Waite, J., concurs.
