[Cite as State v. Craig, 2012-Ohio-1749.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97478



                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                      MICHAEL CRAIG
                                                       DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-518877

        BEFORE:           Celebrezze, P.J., Cooney, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                      April 19, 2012
ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:

       {¶1} Appellant, Michael Craig, brings the instant appeal claiming he should be

granted a new trial based on the discovery of new evidence or, at the very least, a hearing

on the issue. After a thorough review of the record and pertinent law, we affirm the trial

court’s denial of appellant’s motion.

                             I. Factual and Procedural History

       {¶2} The factual history underlying this case has previously been recounted by this

court in State v. Craig, 8th Dist. No. 94455, 2011-Ohio-206, ¶ 2-9.            Appellant’s

convictions stem from a home invasion. He was found guilty of aggravated burglary,

felonious assault, aggravated robbery, kidnapping, and having a weapon while under

disability, for which he received an aggregate 33-year prison sentence. This factual

history provides the background for appellant’s present appeal, where he alleges that

newly discovered evidence requires a new trial.

       {¶3} After appellant’s convictions were affirmed on appeal, he filed a motion for

leave to file a motion for a new trial on August 31, 2011. Attached were several

affidavits of family members attesting that appellant was in New York around the time

the crimes were committed. The trial court reviewed the motion and the state’s response

and, without holding a hearing, denied it on October 4, 2011. The trial court found that

appellant had not demonstrated that he was unavoidably prevented from discovering this

evidence.
       {¶4} Appellant then timely perfected the instant appeal, raising one assignment of

error — that he “was denied due process of law when the court, without a hearing,

overruled [his] motion for leave to file a motion for a new trial based on newly discovered

evidence.”

                                   II. Law and Analysis

                             A. Newly Discovered Evidence

       {¶5} A motion for a new trial is governed by Crim.R. 33, and the decision to grant

or deny such a motion is within the sound discretion of the trial court. State v. LaMar,

95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 82. To constitute an abuse of

discretion, the ruling must be unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). “‘The term discretion itself

involves the idea of choice, of an exercise of the will, of a determination made between

competing considerations.’” State v. Jenkins, 15 Ohio St.3d 164, 222, 473 N.E.2d 264

(1984), quoting Spalding v. Spalding, 355 Mich. 382, 384-385, 94 N.W.2d 810 (1959).

       {¶6} Specifically, appellant based his motion on Crim.R. 33(A)(6), which allows a

petitioner 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.” However, the rule goes further to require “affidavits of the witnesses by whom

such evidence is expected to be given[.]” Where a motion based on newly discovered

evidence is made more than 120 days after the verdict or finding of guilt, as it was in this
case, then petitioners must demonstrate by clear and convincing evidence that they were

unaviodably prevented from discovering the new evidence. Crim.R. 33(B).1

       {¶7} Here, appellant’s new evidence consists of the affidavits of his family

members claiming he was in New York state around the time the crimes were committed.

 Nothing in his motion indicates why these statements were not available at the time of

trial. The trial court found,

       it strains credibility to the breaking point to believe that the defendant in
       this case was unavoidably prevented, as required by the rule, from
       discovering that he was not only not present at the scene of the crime, but
       was not even in the state of Ohio, on the date that the criminal acts for
       which he was found guilty were committed.

       {¶8} Appellant would have known at the time of his trial who saw him in New

York on the date of the crimes and would not have been unavoidably detained from

subpoenaing his own family members. Just as the trial court found, appellant’s motion

does not set forth sufficient grounds to warrant a hearing where he completely fails to

demonstrate how he was unavoidably prevented from finding these alibi witnesses, all of

whom were members of his family.

       {¶9} Even if appellant was able to demonstrate that he was unavoidably prevented

from discovering these particular witnesses, his motion still fails to necessitate a hearing

because this same evidence was presented at trial. The Ohio Supreme Court has set forth

the relevant factors that such a motion should be premised upon.


       1 They must also seek leave to file a motion, which is what appellant did in
this case.
       To warrant the granting of a motion for a new trial in a criminal case, based
       on the ground of newly discovered evidence, it must be shown 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. Id. at the syllabus. State v. Petro, 148 Ohio St. 505, 76 N.E.2d
       370 (1947).

       {¶10} Newly discovered evidence must be novel, not merely cumulative of other

evidence presented at trial. Id.

       {¶11} Here, Cherrie Gilyard, appellant’s grandmother, testified at trial that

appellant was in New York from July 14, 2008 until the end of November 2008. The

affidavits attached to appellant’s motion for leave to file a motion for new trial aver that

appellant was in New York, staying at Mrs. Gilyard’s house or appellant’s mother’s

house, from approximately July 1, 2008 to November 29, 2008. Therefore, the affidavits

attached to appellant’s motion are merely cumulative, not new evidence.

                                      III. Conclusion

       {¶12} The evidence appellant claims is newly discovered was either known to him

at the time of trial or could have been found. Also, the evidence is duplicative of

testimony presented at trial. Therefore, appellant’s motion for leave to file a motion for a

new trial was properly denied by the trial court without a hearing.

       {¶13} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
EILEEN A. GALLAGHER, J., CONCUR
