[Cite as State v. Cashin, 2017-Ohio-9289.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                      No. 17AP-338
v.                                                  :              (C.P.C. No. 08CR-3899)

Christopher E. Cashin,                              :          (REGULAR CALENDAR)

                 Defendant-Appellant.               :




                                             D E C I S I O N

                                   Rendered on December 28, 2017


                 On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
                 Taylor, for appellee. Argued: Steven L. Taylor.

                 On brief: The Law Office of Eric J. Allen, Ltd., and Eric J.
                 Allen, for appellant. Argued: Eric J. Allen.


                   APPEAL from the Franklin County Court of Common Pleas

KLATT, J.

        {¶ 1} Defendant-appellant, Christopher E. Cashin, appeals a judgment of the
Franklin County Court of Common Pleas that denied his motion for leave to file a delayed
motion for a new trial. For the following reasons, we affirm that judgment.
        {¶ 2} On February 27, 2009, a jury found Cashin guilty of one count of
kidnapping, one count of rape, two counts of gross sexual imposition, and one count of
felonious assault. The trial court sentenced Cashin to 25 years to life imprisonment.
        {¶ 3} Cashin was convicted for sexually abusing P.B., who was then ten years old,
on the night of April 19 and 20, 2008. On that night, P.B. slept at the home of his
No. 17AP-338                                                                               2

maternal uncle, Joseph Midlick. Cashin and Midlick were good friends, and Cashin also
stayed overnight at Midlick's home on April 19 and 20, 2008. While P.B. was sleeping in
the basement, Cashin came downstairs. Cashin removed his clothes and P.B.'s clothes,
and Cashin touched and licked P.B.'s "private." (Tr. at 39-40.) Cashin also forced P.B. to
touch Cashin's "private." (Tr. at 41.)
       {¶ 4} The next day, P.B. told his mother, T.B., what had happened. T.B. called the
Columbus Police Department. A Columbus police officer spoke with P.B. about the
incident, and P.B. was taken to Nationwide Children's Hospital for an examination.
During that examination, a nurse took a swab from P.B.'s neck because P.B. had told her
that Cashin had licked him there. The swab tested positive for the presence of saliva. The
major donor to the sample matched P.B.'s DNA, and the minor donor matched Cashin's
DNA.
       {¶ 5} After Cashin was convicted, he appealed the judgment against him to this
court. We affirmed that judgment. See State v. Cashin, 10th Dist. No. 09AP-367, 2009-
Ohio-6419.
       {¶ 6} On July 19, 2016, Cashin filed two motions before the trial court: a motion
for leave to file a delayed motion for a new trial and a motion for a new trial. In his
motions, Cashin contended that he had recently discovered evidence that warranted a
new trial. Cashin's newly discovered evidence consisted of the affidavit testimony of three
different witnesses.
       {¶ 7} In the first affidavit, John Midlick, the brother of T.B. and Joseph Midlick,
testified that T.B. is controlling, homophobic, obsessed with money, a thief, and a habitual
liar. John Midlick also stated that T.B. has falsely accused him and his brothers, James
and Jeff Midlick, of physically and/or sexually abusing P.B. According to John Midlick,
T.B. would allege abuse against anyone who threatened her inheritance of Joseph
Midlick's estate. Finally, John Midlick represented that P.B. would do anything to please
T.B., including making false allegations against someone his mother perceived as a threat.
       {¶ 8} In the second affidavit, Jeff Midlick, the brother of T.B., Joseph Midlick,
and John Midlick, testified that T.B. had falsely alleged in a probate court proceeding that
their mother, Helen Midlick, had abused P.B. Like his brother, Jeff Midlick also stated
that (1) T.B. had falsely accused P.B.'s uncles, including him, of physically and/or sexually
No. 17AP-338                                                                                  3

abusing P.B.; (2) T.B. would level accusations of abuse of P.B. against anyone who
threatened her inheritance of Joseph Midlick's estate; and (3) P.B. would do anything to
make his mother happy, including making false abuse allegations.                   Additionally,
according to Jeff Midlick, two weeks before P.B. accused Cashin of sexually abusing him,
T.B. overheard Cashin tell Joseph Midlick that he was crazy to put T.B.'s name on the
deed to his house.
         {¶ 9} In the third affidavit, Debra Mullen, a friend of T.B. and an acquaintance of
Cashin, testified that T.B. is controlling, homophobic, obsessed with money, and a
habitual liar. Mullen also stated that P.B. would do anything to make his mother happy,
including making false accusations against someone T.B. perceived as a threat.
         {¶ 10} In addition to the three witnesses' affidavits, Cashin submitted his own
affidavit to the trial court. Cashin stated that he "had no idea" that T.B. had falsely
accused John, Jeff, James, and Helen Midlick of abusing P.B. (Cashin Aff. at ¶ 6-8.)
Cashin's affidavit also included the following averments:
               13. Affiant states that he has done everything possible to
               procure this information since his conviction in 2009.

               14. Affiant states that the affiants were unwilling to testify on
               his behalf and have been unwilling since 2009.

(Cashin Aff. at ¶ 13-14.)

         {¶ 11} In a judgment issued April 10, 2017, the trial court denied Cashin's motion
for leave to file a delayed motion for a new trial. The trial court found that Cashin was not
unavoidably prevented from discovering the evidence in the three witnesses' affidavits
within the 120-day period provided by Crim.R. 33(B) to file a motion for a new trial based
on newly discovered evidence.       The trial court's denial of Cashin's motion for leave
rendered moot the motion for a new trial, so the trial court did not rule on it.
         {¶ 12} Cashin now appeals the trial court's judgment, and he assigns the following
error:
               THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
               OVERRULED APPELLANT'S MOTION FOR LEAVE TO FILE
               A MOTION FOR A NEW TRIAL.
No. 17AP-338                                                                            4

      {¶ 13} Preliminarily, we must address the state's argument that we should review
the judgment before us as a denial of a postconviction petition instead of a denial of a
motion for leave to file a delayed motion for a new trial. The state essentially contends
that the General Assembly tacitly abolished Crim.R. 33 when it established the
postconviction petition as the exclusive means by which a person may collaterally attack
the validity of a conviction. See R.C. 2953.21(K). We reject this argument. This court has
repeatedly stated that the Crim.R. 33 procedures for a new trial exist independently from
the R.C. 2953.21 procedure for postconviction relief. See State v. Boone, 10th Dist. No.
16AP-387, 2017-Ohio-843, ¶ 5, fn. 1; State v. Caulley, 10th Dist. No. 12AP-100, 2012-
Ohio-2649, ¶ 18; State v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-2244, ¶ 5, fn.1;
State v. Burke, 10th Dist. No. 06AP-656, 2006-Ohio-4597, ¶ 10; State v. Lee, 10th Dist.
No. 05AP-229, 2005-Ohio-6374, ¶ 13.
      {¶ 14} We now turn to the merits of Cashin's argument that the trial court erred in
denying his motion for leave to file a delayed motion for a new trial. Pursuant to Crim.R.
33(A)(6), a court may grant a motion for 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." A defendant must file a motion based on Crim.R.
33(A)(6) within 120 days after the date on which a verdict or decision was rendered
against him. Crim.R. 33(B). However,
             [i]f 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.

Id.
      {¶ 15} Thus, where a defendant misses filing within the 120-day period, Crim.R. 33
mandates a two-step procedure. State v. Graggs, 10th Dist. No. 16AP-611, 2017-Ohio-
4454, ¶ 13; State v. Noor, 10th Dist. No. 16AP-340, 2016-Ohio-7756, ¶ 11. First, the
defendant must file a motion for leave to file a delayed motion for new trial. The
defendant must support his motion with evidence that he was unavoidably prevented
from learning of the newly discovered evidence within the 120-day period for filing a
Crim.R. 33(A)(6) motion. Graggs at ¶ 13; Noor at ¶ 11. Second, if the trial court grants
No. 17AP-338                                                                               5

the motion for leave, the defendant must file his actual motion for a new trial. Noor at
¶ 11. In that motion, the defendant must show 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."

State v. Hawkins, 66 Ohio St.3d 339, 350 (1993), quoting State v. Petro, 148 Ohio St. 505
(1947), syllabus.
       {¶ 16} A defendant is unavoidably prevented from filing a motion for a new trial if
he "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). Given the defendant's obligation to exercise
reasonable diligence, the defendant cannot claim that evidence was undiscoverable simply
because no one made efforts to obtain the evidence sooner. Graggs at ¶ 15; Noor at ¶ 17;
State v. Anderson, 10th Dist. No. 12AP-133, 2012-Ohio-4733, ¶ 14. In other words, a
defendant cannot demonstrate that he was unavoidably prevented from discovering new
evidence when he could have discovered that evidence earlier had he exercised reasonable
diligence and effort. State v. Lenoir, 2d Dist. No. 26846, 2016-Ohio-4981, ¶ 24.
       {¶ 17} To allow the trial court to gauge the defendant's diligence, the defendant
must describe all investigative actions undertaken within the 120-day period for timely
filing a Crim.R. 33(A)(6) motion and explain why he was unavoidably prevented from
discovering the evidence before the 120-day period elapsed. State v. Whiteside, 10th Dist.
No. 15AP-55, 2015-Ohio-3490, ¶ 19; State v. Ambartsoumov, 10th Dist. No. 12AP-878,
2013-Ohio-3011, ¶ 25; State v. Golden, 10th Dist. No. 09AP-1004, 2010-Ohio-4438, ¶ 19;
State v. West, 10th Dist. No. 09AP-474, 2009-Ohio-5203, ¶ 13; State v. Bush, 10th Dist.
No. 08AP-627, 2009-Ohio-441, ¶ 10-11. Mere conclusory allegations do not prove that the
defendant was unavoidably prevented from discovering the evidence he seeks to
introduce as support for a new trial. Noor at ¶ 17; State v. Waddy, 10th Dist. No. 15AP-
397, 2016-Ohio-4911, ¶ 19; Anderson at ¶ 14; West at ¶ 12.
No. 17AP-338                                                                               6

       {¶ 18} Trial courts apply the clear-and-convincing-evidence standard to determine
whether a defendant was unavoidably prevented from discovering the evidence on which
he seeks a new trial. Civ.R. 33(B). Clear and convincing evidence is " 'that measure or
degree of proof which is more than a mere "preponderance of the evidence," but not to the
extent of such certainty as is required "beyond a reasonable doubt" in criminal cases, and
which will produce in the mind of the trier of facts a firm belief or conviction as to the
facts sought to be established.' " State v. Schiebel, 55 Ohio St.3d 71, 74 (1990), quoting
Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
       {¶ 19} Appellate courts apply an abuse-of-discretion standard in reviewing a trial
court's denial of a motion for leave to file a delayed motion for a new trial. Anderson at
¶ 9. An abuse of discretion is more than an error of law or judgment; it implies that a trial
court's decision was unreasonable, arbitrary, or unconscionable. State v. Thompson, 141
Ohio St.3d 254, 2014-Ohio-4751, ¶ 91. An appellate court may not determine that a trial
court abused its discretion simply because the appellate court might not have reached the
same conclusion. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 14.
       {¶ 20}   Here, a jury found Cashin guilty on February 27, 2009. Cashin sought a
new trial based on newly discovered evidence over seven years later, on July 19, 2016.
Cashin, therefore, clearly missed the 120-day deadline. Consequently, to secure court
review of his motion for a new trial, Cashin had to establish that he was unavoidably
prevented from discovering the evidence contained in the affidavits of John Midlick, Jeff
Midlick, and Mullen. To accomplish this, Cashin testified in his affidavit that he did not
know about the false abuse allegations that T.B. had leveled against her family members.
Additionally, Cashin stated that he did "everything possible" to procure the witnesses'
testimony, but the witnesses have been unwilling to provide their testimony since 2009.
(Cashin Aff. at ¶ 13-14.)
       {¶ 21} Cashin's statement that he did everything possible to obtain the witnesses'
testimony is a conclusory allegation devoid of the detail needed to determine whether
Cashin exercised reasonable diligence. Without a description of the actions undertaken to
obtain the witnesses' testimony, a court cannot determine whether it agrees with Cashin's
own assessment of his efforts. Thus, Cashin's statement that he did everything possible
does not prove that Cashin acted with reasonable diligence.
No. 17AP-338                                                                              7

       {¶ 22} A court could potentially interpret Cashin's statement that the witnesses
were unwilling to provide affidavit testimony as an explanation for why Cashin was
unavoidably prevented from discovering the evidence contained in the affidavits within
the 120-day period after the jury verdict. However, Cashin failed to produce any evidence
regarding his efforts to obtain the witnesses' affidavits. Without that evidence, Cashin
cannot establish that he exercised reasonable diligence to overcome the witnesses'
unwillingness before the 120-day period lapsed. Cashin's testimony, therefore, does not
constitute clear and convincing evidence of unavoidable prevention.
       {¶ 23} Because Cashin failed to prove that he was unavoidably prevented from
discovering the evidence he relies upon as a basis for his motion for a new trial, the trial
court did not err in denying his motion for leave. Accordingly, we overrule Cashin's sole
assignment of error, and we affirm the judgment of the Franklin County Court of
Common Pleas.
                                                                       Judgment affirmed.

                          DORRIAN and HORTON, JJ., concur.
