[Cite as State v. Walker, 2016-Ohio-7314.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
        Plaintiff - Appellee                 :       Hon. William B. Hoffman, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
STEVEN WALKER                                :       Case No. 2016CA00076
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court
                                                     of Common Pleas, Case No. 2015-
                                                     CR-1118



JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    October 11, 2016




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      NICHOLAS SWYRYDENKO
Prosecuting Attorney                                 P.O. Box 3952
                                                     Cuyahoga Falls, Ohio 44223
By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2016CA00076                                                       2

Baldwin, J.

       {¶1}   Defendant-appellant Steven Walker appeals from the March 14, 2016

Judgment Entry of the Stark County Court of Common Pleas denying his Application for

Leave to File a Delayed Motion for New Trial. Plaintiff-appellee is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   The relevant facts, as taken, in relevant part, from this Court’s Opinion in

State v. Stevens, 5th Dist. Stark No. 2005-CA-00286, 2006-Ohio-6240, are as follows.

       {¶3}   Michael Cheek, Aubrey Williams, and Julius Edwards were longtime friends

and also members of a Canton gang known as the “Northwest Shorb Block.” On July 29,

2005, the three were hanging out with a fourth man, William Friedman, who was Cheek's

cousin. The four spent the day together and were drinking when they made plans to go

to a Canton bar called Brick City.

       {¶4}   Williams drove the four in a Buick Regal car belonging to Michael Cheek's

mother. They decided to go to the Hall of Fame Fuel Mart to buy new t-shirts before they

went to the bar. The Hall of Fame Fuel Mart is located at 704 Sherrick Road S.E., Canton.

Aubrey Williams waited in the car, and the other three entered the store.

       {¶5}   The City of Canton is divided into roughly four gang “territories.” The

northwest part of the city is known as the territory of “Northwest Shorb Block.” The

northeast quadrant is known as the-home of the “Crypts” (sic). The southwest and

southeast portions of the city are “Rated,” or “Rated R,” territory. The Hall of Fame Fuel

Mart is located in what is considered to be “Rated” territory.

       {¶6}   Inside the store, Michael Cheek, Julius Edwards, and William Friedman

encountered appellant Steven Walker. Appellant was at one of the store's two cash
Stark County, Case No. 2016CA00076                                                               3


registers, arguing with clerk Hussin Almuzerwi over the price of a shirt. A verbal

confrontation ensued between appellant and Cheek's group. In the words of Julius

Edwards, “We got out of the car and go in the store, we see Stevie, you know, in there

hollering, talking about Rated.” (1T. at 209). In Edwards' estimation, appellant was “letting

it be known” that he was “Rated, flat-out.”

        {¶7}   The group selected and paid for their t-shirts as the verbal back-and-forth

with appellant continued. The tension escalated. Edwards described appellant as

relentlessly baiting the three: “he's still walking up on it.” (1T. at 211). At this point, Michael

Cheek had enough and told Edwards that he was going to hit appellant.                      Cheek

proceeded to strike appellant, knocking him into a candy rack. Appellant fell to the ground.

        {¶8}   Cheek, Friedman, and Edwards hurried out of the store. Edwards looked

back at appellant and saw him reaching for something. Clerk Hussin Almuzerwi also saw

appellant reach for something at his waist. Julius Edwards described what he saw as a

“burner,” a gun or pistol. Cheek, Edwards, and Friedman took off running. Cheek ran in

the direction of the Southeast Community Center, and Edwards and Friedman ran toward

the car. (1T. at 211).

        {¶9}   Julius Edwards testified that appellant ran out of the store “with the burner

already out” and fired at least four to five times at Michael Cheek as he fled. Cheek fell to

the ground. Appellant pointed the gun at Edwards and Friedman; Edwards said that the

gun “clicked.” Appellant got into his own car and left the scene. (1 T. at 211; 213-215;

218).

        {¶10} Edwards admitted that he is a member of the Shorb Block gang but claimed

that Williams, Cheek, and Friedman were not. He also claimed not to know whether
Stark County, Case No. 2016CA00076                                                       4


appellant was affiliated with any gang. Julius Edwards did identify appellant as the

shooter. He stated that appellant had people “with” him, presumably in his car. (1T. at

215; 216-217). Edwards also testified that no one in Michael Cheek's group that night

had a gun.

      {¶11} Aubrey Williams watched the shooting from the driver's seat of the car.

Cheek, Friedman, and Edwards had been in the store only about five minutes when

Cheek came running out and turned left. He was followed by Edwards and then Friedman,

who turned right, toward the car. Williams saw appellant come out after the group, pointing

a gun at Cheek.

      {¶12} Cheek got about fifteen or twenty feet from the door of the store when

appellant fired the gun and Cheek dropped to the ground. Williams recalled that appellant

fired the gun more than once but he was not sure how many times. Williams saw appellant

get into a black Taurus and drive away. Williams testified that no one in the Buick Regal

that night had a gun. He identified appellant as the person who shot Michael Cheek, and

testified that there was no doubt in his mind that appellant was the shooter.

      {¶13} Both Williams and Edwards described the final moments of the life of

Michael Cheek. They ran to their friend as he lay on the ground. Cheek told them that he

couldn't feel his legs. Williams, Edwards, and Friedman tried to pick up Cheek in an

attempt to carry him to the car, but bystanders advised them not to move him. Cheek

stated that he could not feel his body anymore. Williams placed his hand under Cheek's

head as Cheek coughed and his eyes rolled back into his head.
Stark County, Case No. 2016CA00076                                                         5


       {¶14} Emergency medical personnel and police arrived. Patrolman Michael

Nordick lifted Cheek from the large pool of blood in which he lay, and noted an entrance

wound in his back.

       {¶15} Cheek was transported to Aultman Hospital. Edwards and Williams also

went to Aultman and were told that Cheek was dead. Patrolman Nordick questioned

Edwards at the hospital, and Edwards told him that appellant was the shooter.

       {¶16} At the conclusion of the jury trial and the end of deliberations, appellant was

found guilty as charged. As memorialized in an Entry filed on October 31, 2005, the trial

court sentenced appellant to an aggregate prison term of eighteen years to life.

       {¶17} Appellant then appealed. Pursuant to an Opinion filed on November 27,

2006 in State v. Stevens, 5th Dist. Stark No. 2005-CA-00286, 2006-Ohio-6240, this Court

affirmed the judgment of the trial court.

       {¶18} Subsequently, on November 2, 2015, appellant filed an Application for

Leave to File Delayed Motion for New Trial. Appellant argued that there was newly

discovered evidence in his case and that he was unavoidably prevented from discovering

the same prior to filing his application. The newly discovered evidence was an affidavit

from the victim’s sister, Shyeaka Sianna Ball, and an affidavit from Julius Edwards. Ball,

in her June 19, 2015 affidavit, stated that she was ten years old when her brother was

killed and that a couple of days after he was killed in 2005, while at a gathering at her

mother’s house, she heard Julius Edwards state “I don’t know how I’m going to look their

family in the face and tell them that I shot my best friend.” Ball, in her affidavit, further

stated that Julius Edwards said that he accidentally shot and killed her brother and that

she tried to tell her mother, but was told to mind her own business. Ball also stated that
Stark County, Case No. 2016CA00076                                                         6


she had recently contacted appellant’s sister through Facebook to let her know what Ball

had witnessed back in 2005.

       {¶19} Julius Edwards, in his February 1, 2013 affidavit, stated that he testified

falsely at appellant’s criminal trial and was threatened and coerced by the Prosecution

into testifying falsely at trial. He stated that the shots did not come from appellant, but

from the entrance to the store, and that appellant never had a gun. Edwards further stated

that he was jealous of appellant and missed the victim, who was his best friend, and

“decided incorrectly that [appellant] should pay for the killing.”

       {¶20} On March 9, 2016, appellant filed a request for a hearing on his application

and/or for a ruling on the same. The trial court, as memorialized in a Judgment Entry filed

on March 14, 2016, denied appellant’s motion.

       {¶21} Thereafter, on March 31, 2016, appellee filed a reply to appellant’s

Application for Leave to File Delayed Motion for New Trial. Pursuant to a Judgment Entry

filed on April 15, 2016, the trial court overruled appellant’s application.

       {¶22} Appellant now raises the following assignment of error on appeal:

       {¶23} THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR

LEAVE TO FILE A MOTION FOR NEW TRIAL WITHOUT A HEARING, AND THUS

DENIED APPELLANT HIS DUE                  PROCESS       RIGHT TO REVIEW           OF THE

SUBSTANTIVE AND LEGAL MERITS OF A MOTION FOR NEW TRIAL.

                                                  I

       {¶24} Appellant, in his sole assignment of error, argues that the trial court erred in

denying his Application for Leave to File Delayed Motion for New Trial without a hearing.

We disagree.
Stark County, Case No. 2016CA00076                                                       7


      {¶25} Crim.R. 33 governs new trials. A motion for a new trial made pursuant to

Crim.R. 33 is addressed to the sound discretion of the trial court, and may not be reversed

unless we find an abuse of discretion. State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54

(1990). An abuse of discretion implies that the trial court's judgment is arbitrary,

unreasonable, or unconscionable. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343

(1987).

      {¶26} Crim.R. 33 states, in relevant part, as follows:

             (A) Grounds. A new trial may be granted on motion of the defendant

      for any of the following causes affecting materially his substantial rights:…

             (6) When new evidence material to the defense is discovered which

      the defendant could not with reasonable diligence have discovered and

      produced at the trial. When a motion for a new trial is made upon the ground

      of newly discovered evidence, the defendant must produce at the hearing

      on the motion, in support thereof, the affidavits of the witnesses by whom

      such evidence is expected to be given, and if time is required by the

      defendant to procure such affidavits, the court may postpone the hearing of

      the motion for such length of time as is reasonable under all the

      circumstances of the case. The prosecuting attorney may produce affidavits

      or other evidence to impeach the affidavits of such witnesses.

      {¶27} Pursuant to Crim.R. 33(B):

             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
Stark County, Case No. 2016CA00076                                                          8


       jury has been waived, unless it is made to 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.

       {¶28} “[A] party is ‘unavoidably prevented’ from filing a motion for a new trial if the

party had no knowledge of the existence of the ground supporting the motion and could

not have learned of that existence within the time prescribed for filing the motion in the

exercise of reasonable diligence.” State v. Walden, 19 Ohio App.3d 141, 145–146, 483

N.E.2d 859 (10th Dist. 1984).

       {¶29} To warrant the granting of a motion for a new trial 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 of a new trial if 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
Stark County, Case No. 2016CA00076                                                            9


former evidence; and (6) does not merely impeach or contradict the former evidence.”

State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus.

       {¶30} Appellant, in the case sub judice, argued that he had newly discovered

evidence that would warrant a new trial. As is stated above, appellant supported his

application with the June 19, 2015 affidavit of Shyeaka Sianna Ball, and the February 1,

2013 affidavit from Julius Edwards. As noted by appellee, with respect to Edwards’

affidavit, neither the affidavit nor appellant’s application explains how the affidavit was

prepared, what lead to its preparation years after appellant’s conviction was affirmed, or

how and when it ended up in appellant’s possession.

       {¶31} While Julius Edwards’ affidavit was dated February 1, 2013, appellant did

not file his application until November 2, 2015. Appellant, in his application, stated that

Edwards’ affidavit, standing alone, was not sufficient evidence to warrant the granting of

a new trial, but argues that such affidavit, taken in conjunction with the June 19, 2015

affidavit of Shyeaka Sianna Ball, does warrant a new trial.

       {¶32} As an initial matter, we note that appellant does not explain why he waited

for over five months after obtaining Ball’s affidavit to file his application. Moreover, we find

that the two affidavits contradict each other. While Ball, in her affidavit, stated that she

heard Julius Edwards state in 2005 that he had shot and killed Michael Cheek and that

the shooting was accidental, Edwards, in his affidavit, does not accept responsibility but

rather points to some unknown and unnamed gunman. As noted by appellee, Ball’s later

affidavit destroys the credibility of Edwards’ earlier affidavit and the credibility of Ball’s

affidavit is destroyed by Edwards’ affidavit.
Stark County, Case No. 2016CA00076                                                      10


       {¶33} Moreover, both affidavits are contradicted by the trial evidence, which is set

forth above. There was testimony that Hussin Almuzerwi, the store clerk saw appellant

reach for something at his waist. Aubrey Williams, a witness, testified that he saw

appellant run out of the store. He identified appellant as the person who shot Michael

Cheek, and testified that there was no doubt in his mind that appellant was the shooter.

At trial, Julius Edwards’ testimony corroborated Williams’ version of events and was

consistent with the statement that he gave to police on July 30, 2005, a copy of which

was attached to appellee’s March 31, 2016 reply. In his statement to police, Edwards

identified appellant as the shooter.

       {¶34} Based on the foregoing, we find that the trial court did not err in denying

appellant’s Application for Leave to File Delayed Motion for New Trial without a hearing.

The trial court’s decision was not arbitrary, unconscionable or unreasonable. We find that

appellant failed to show by clear and convincing evidence that he was unavoidably

prevented from the discovery of the evidence upon which he relied or that the new

evidence disclosed a strong probability that it would change the result of a new trial if

granted.

       {¶35} Appellant’s sole assignment of error is, therefore, overruled.
Stark County, Case No. 2016CA00076                                             11




      {¶36} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.

By: Baldwin, J.

Farmer, P.J. and

Hoffman, J. concur.
