[Cite as State v. Chavis-Tucker, 2014-Ohio-3050.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                           No. 14AP-40
v.                                                  :                (C.P.C. No. 95CR-09-1021)

James Chavis-Tucker,                                :             (REGULAR CALENDAR)

                 Defendant-Appellant.               :




                                           D E C I S I O N

                                      Rendered on July 10, 2014


                 Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
                 appellee.

                 James Chavis-Tucker, pro se.

                  APPEAL from the Franklin County Court of Common Pleas

KLATT, J.
        {¶ 1} Defendant-appellant, James Chavis-Tucker, appeals from a judgment of the
Franklin County Court of Common Pleas denying his motion for a new trial. Because the
trial court did not abuse its discretion, we affirm that judgment.
I. Factual and Procedural Background
        {¶ 2} This court has already set forth the factual and procedural background of
appellant's case. See State v. Chavis, 10th Dist. No. 96APA04-508 (Dec. 26, 1996)
(affirming conviction); State v. Chavis-Tucker, 10th Dist. No. 05AP-974, 2006-Ohio-3105
(affirming dismissal of petition for postconviction relief). In short, a jury in 1996 found
appellant guilty of the aggravated murder of Ernest Penn, III, who was shot while working
No. 14AP-40                                                                              2

as a security guard at Club Alexander, a nightclub in Columbus. The trial court sentenced
him accordingly.
       {¶ 3} On July 10, 2012, appellant filed in the trial court a motion for new trial
pursuant to Crim.R. 33(A)(2). In his motion, appellant claimed that a juror had not been
truthful during his voir dire questioning about his knowledge of the club where the
murder occurred. Specifically, the juror was asked whether he had "ever seen or been to
or heard of" Club Alexander. The juror answered that he had heard of it. Appellant filed
an affidavit from Sheila Jones, who stated that she had been friends with the juror and
that the juror worked as a DJ at the club sometime between 1989 and 1994. Appellant
argued that the juror's answer was not truthful because he had not only heard of the club,
but had also been there. The state opposed appellant's motion for a number of reasons.
The trial court denied the motion, both on its merits and because the motion was not
timely filed.
II. The Appeal
       {¶ 4} Appellant appeals and assigns the following error:
                The Trial Court abused its discretion and erred in denying a
                hearing on appellant['s] motion for new trial based on newly
                discovered evidence of juror misconduct, which raised a
                substantial question to the interest of the juror to that of the
                defendant.

       A. Standard of Review
       {¶ 5} Appellant appeals from the trial court's decision denying his motion for new
trial. Our review of that decision is limited to determining whether the trial court abused
its discretion. State v. Green, 10th Dist. No. 13AP-260, 2013-Ohio-5327, ¶ 8. Although
an abuse of discretion is typically defined as an unreasonable, arbitrary, or
unconscionable decision, no court has the authority, within its discretion, to commit an
error of law. State v. Moncrief, 10th Dist. No. 13AP-391, 2013-Ohio-4571, ¶ 7.
       B. Appellant Filed an Untimely Motion for New Trial
       {¶ 6} Appellant filed his motion for new trial on July 10, 2012. Because his
motion alleged a claim of juror misconduct under Crim.R. 33(A)(2), it had to be filed
within 14 days after verdict. Crim.R. 33(B). Appellant's verdict was entered in 1996,
making his motion for new trial untimely. Because appellant filed his motion well outside
No. 14AP-40                                                                                   3

the rule's time limits, he had to obtain leave from the trial court to file his motion. State v.
Golden, 10th Dist. No. 09AP-1004, 2010-Ohio-4438, ¶ 8; State v. Gover, 10th Dist. No.
12AP-777, 2013-Ohio-3366, ¶ 10. Although appellant did not follow this procedure, the
trial court appeared to, so we construe the trial court's decision as one denying leave to file
an untimely motion for new trial. An abuse of discretion standard of review also applies
to decisions that deny Crim.R. 33(B) motions for leave to file a motion for new trial. State
v. Townsend, 10th Dist. No. 08AP-371, 2008-Ohio-6518, ¶ 8.
       {¶ 7} Whether a trial court grants leave to file a delayed motion for new trial
based on juror misconduct depends upon whether the defendant presents clear and
convincing proof that he was unavoidably prevented from filing a timely motion. Crim.R.
33(B); State v. Carson, 10th Dist. No. 07AP-492, 2007-Ohio-6382, ¶ 14. 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 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. Carson at ¶ 15, citing State v. Davis, 10th
Dist. No. 03AP-1200, 2004-Ohio-6065, ¶ 11.
       C. Appellant did not Demonstrate Unavoidable Prevention
       {¶ 8} The trial court concluded that appellant failed to establish that he was
unavoidably prevented from discovering the grounds to support his motion. We agree.
Appellant's only attempt to demonstrate that he was unavoidably prevented from
discovering the grounds to support his motion is his claim that he had no way of securing
the information about the alleged juror misconduct until now. Clear and convincing proof
that a defendant was unavoidably prevented from filing requires more than a mere
allegation that a defendant has been unavoidably prevented from discovering the grounds
to support his motion for a new trial. Carson at ¶ 16, citing State v. Lee, 10th Dist. No.
05AP-229, 2005-Ohio-6374, ¶ 9. Thus, the mere assertion in appellant's motion that he
was unavoidably prevented from discovering the grounds was not sufficient on its face to
carry appellant's burden of proving unavoidable delay by clear and convincing evidence.
See State v. Bush, 10th Dist. No. 08AP-627, 2009-Ohio-441; State v. Parker, 178 Ohio
App.3d 574, 2008-Ohio-5178 (2d Dist.). Further, appellant does not explain how he
No. 14AP-40                                                                                 4

finally did obtain this information, why it took him so long to do so, and why he could not
have discovered it earlier. Townsend at ¶ 13.
       {¶ 9} Because appellant did not demonstrate that he was unavoidably prevented
from discovering the ground to support his motion, the trial court did not abuse its
discretion by denying his motion. In light of that failure, the trial court also did not abuse
its discretion in denying his motion without a hearing. Carson at ¶ 22. For these reasons,
we overrule appellant's assignment of error.
III. Conclusion
       {¶ 10} Having overruled appellant's assignment of error, we affirm the judgment of
the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.

                     DORRIAN and LUPER SCHUSTER, JJ., concur.
