[Cite as State v. Watson,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2016-08-159

: OPINION - vs - 4/17/2017 :

KEVIN WATSON, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR87-06-0303

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Barney DeBrosse, LLC, Derek A. DeBrosse, 503 South Front Street, Suite 240B, Columbus, Ohio 43215, for defendant-appellant

HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, Kevin Watson, appeals a decision of the Butler County

Court of Common Pleas, dismissing his motion for leave to file a motion for new trial and his

motion for new trial and/or petition for postconviction relief. For the reasons that follow, we

affirm the decision of the trial court.

{¶ 2} We have previously detailed the facts of appellant's case as follows: Butler CA2016-08-159

{¶ 3} On the evening of June 3, 1987, Eli Mast and Krista Toney were checking

lottery receipts at Mast's New and Used Furniture Store located at 427 South Second Street

in Hamilton, Ohio. State v. Watson, 12th Dist. Butler No. CA88-02-014,

, *1 (Mar. 31, 1989) (Watson I). Two juveniles, Marlon Moon, age 15, and Willie

Prater, age 16, were in the rear of the store playing video games.

At approximately 7:30

p.m., a black man entered the store carrying a gym bag and a 12-gauge shotgun.

The

man ordered Mast to lie face down on the floor and then threw the gym bag at Toney and

told her to fill it with money.

Moon and Prater ran into a back room, apparently unnoticed

by the assailant. Id. at *2. As Toney filled the gym bag with money, the assailant placed the

shotgun at the back of Mast's head and fired once, killing Mast instantly. Id. He then pointed

the gun at Toney and threatened to kill her before running out of the store. Id.

{¶ 4} The police arrived and Toney provided a description of the assailant. Id. The

next day, Donald Cook reported that Rodney Henderson had stolen a twelve-gauge shotgun

from him the day of the robbery at 6:30 p.m. Id. Cook explained that he was conversing with

Henderson and appellant, and then, Henderson left the room and retrieved a shotgun from

the trunk of Cook's car. Id. at *2-3. According to Cook, Henderson loaded the gun with

seven shells and showed it to appellant, who nodded his head in approval when asked, "will

this do?" Id. at *3. Cook unsuccessfully protested giving the gun to Henderson. Id. Moon,

Prater, and Toney all positively identified appellant as the man they saw in the store in

statements made both before and during the trial. Id. at *6. Toney recognized that appellant

was the assailant because appellant had stayed at her house the previous night with her

stepbrother Rodney Henderson. Id. at *7.

{¶ 5} On October 31, 1987, appellant was adjudged guilty by a jury in the Butler

County Court of Common Pleas of one count of aggravated murder with a firearm

specification and one count of aggravated robbery with a firearm specification. Id. at *3-4. -2- Butler CA2016-08-159

The jury recommended that appellant be sentenced to death, the trial court accepted the

recommendation, and on November 12, 1987, sentenced appellant to death. Id. at *4.

{¶ 6} Appellant presented seven assignments of error to this court in his direct

appeal. Id. We overruled all seven assignments of error and affirmed the trial court's

judgment. Id. Appellant appealed his case to the Ohio Supreme Court, which found that a

death sentence was an inappropriate penalty, and remanded the case to the trial court for the

imposition of a life sentence. State v. Watson,

(1991) (Watson II). On

remand, the trial court imposed a sentence of life imprisonment with eligibility for parole after

30 years for the aggravated murder conviction, to be served consecutively with the terms of

incarceration imposed for the aggravated robbery conviction and the firearm specification.

State v. Watson,

(12th Dist. 1992) (Watson III). Appellant appealed

the trial court's sentence to this court, and we affirmed the judgment of the trial court.

A

motion for leave to appeal to the Supreme Court of Ohio was overruled in State v. Watson,

(1992) (Watson IV).

{¶ 7} On September 16, 1996, appellant filed a petition for postconviction relief

pursuant to R.C. 2953.21. Appellant alleged the state suppressed exculpatory evidence and

that evidence existed that Henderson admitted he was the person who murdered Mast.

Appellant supported the latter argument with the affidavit of Larry Smith, who served prison

time with Henderson. We affirmed the trial court's decision to dismiss appellant's petition and

the Ohio Supreme Court declined jurisdiction. State v. Watson,

(12th Dist. 1998) (Watson V), jurisdiction declined by State v. Watson,

(1998) (Table) (Watson VI).

{¶ 8} On February 16, 2016, appellant filed his instant motion for leave to file a

motion for new trial and his motion for new trial and/or petition for postconviction relief.

Appellant supported his present motions with his own affidavit and Smith's affidavit from -3- Butler CA2016-08-159

1996, as well as the affidavits of Prater, Michelle Williams, Kimberly Blair, and Zanetta

Williams.

{¶ 9} Appellant avers he has always maintained his innocence and has pursued

proving such with reasonable diligence and any delay in bringing the present motions/petition

was caused by the Innocence Project dropping his case, which forced him to search for new

counsel while incarcerated with limited financial resources. Smith avers that while

incarcerated together, Henderson admitted to murdering Mast. Prater avers he was young

and very afraid when questioned, so he was eager to please the police; therefore, he has

"had misgivings about [his] identification" of appellant and truly does not believe appellant

killed Mast. Michelle Williams avers she is related to Henderson and when she was seven

years old, she recalls Henderson admitting to shooting Mast. Blair avers she had a child with

Henderson and lived with him in the 1990s until their separation in July 1997. Blair further

avers that while they lived together, Henderson admitted to killing Mast. Zanetta Williams

avers she and Henderson were close friends, and that, during the late 1990s Henderson

admitted to killing Mast. Michelle Williams, Blair, and Zanetta Williams all aver Henderson

died of an apparent overdose in 2000.

{¶ 10} The trial court denied appellant's present motion for leave to file a motion for

new trial and motion for new trial and/or petition for postconviction relief without holding an

evidentiary hearing and this appeal followed

{¶ 11} Assignment of Error No. 1:

{¶ 12} THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING MR.

WATSON'S MOTION FOR NEW TRIAL OR IN THE ALTERNATIVE PETITION FOR

POSTCONVICTION RELIEF.

{¶ 13} In his sole assignment of error, appellant presents four issues for review.

Appellant asserts he has shown by clear and convincing proof that he was unavoidably -4- Butler CA2016-08-159

prevented from discovering the evidence supporting his motion for leave within the time

requirements as set forth in Crim.R. 33 and R.C. 2953.23. Appellant further argues the

affidavits submitted in his motion for new trial and/or petition for postconviction relief did more

than merely impeach or contradict former evidence as well as that they are reliable and

credible. Finally, appellant contends the trial court abused its discretion by denying his

motions/petition without holding a hearing on the matter.

{¶ 14} "[A] postconviction proceeding is not an appeal of a criminal conviction but,

rather, a collateral civil attack on the judgment." State v. Calhoun,

(1999). A trial court's decision to grant or deny a postconviction petition pursuant to R.C.

2953.21 is upheld absent an abuse of discretion. State v. Gondor,

,

, ¶ 58. Likewise, Crim.R. 33 motions for new trial are not to be granted

lightly and will not be disturbed absent an abuse of discretion. State v. Thornton, 12th Dist.

Clermont No. CA2012-09-063,

. A review under the abuse of

discretion standard is a deferential review. State v. Morris,

, 2012-Ohio-

2407, ¶ 14. An abuse of discretion is more than an error of law or judgment. Rather, it

suggests the "trial court's decision was unreasonable, arbitrary or unconscionable." State v.

Perkins, 12th Dist. Clinton No. CA2005-01-002,

.

MOTION FOR LEAVE

{¶ 15} Crim.R. 33 provides a new trial may be granted on a defendant's motion for

any of six causes materially affecting the defendant's substantial rights, including "[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." Crim.R. 33(A)(6). Crim.R.

33(B), provides, in pertinent part:

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 * * *. If it is made to appear by -5- Butler CA2016-08-159

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.

Therefore, appellant must establish by "clear and convincing proof that [he] was unavoidably

prevented from the discovery of the evidence upon which he must rely." Thornton at ¶ 18,

discussing Crim.R. 33(B). Unavoidable delay results "'when the [appellant] 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 required time in the exercise of

reasonable diligence.'"

quoting State v. Rodriguez-Baron, 7th Dist. Mahoning No. 12-MA-

44,

. Clear and convincing proof requires appellant to establish more

than a mere allegation he was unavoidably prevented from discovering the evidence he now

seeks to introduce to support his motion for leave to file a motion for new trial. Thornton at ¶

19. To meet his burden, the measure or degree of proof appellant must demonstrate is that

"which will produce in the mind of the trier of facts a firm belief or conviction as to the

allegations sought to be established." Cross v. Ledford,

, 477 (1954).

{¶ 16} Because the present matter is well outside the 120-day period, appellant was

required to obtain leave of court to file a motion for new trial. State v. Williams, 12th Dist.

Butler No. CA2003-01-001,

. If leave of court is given to file a motion

for new trial, the defendant must then demonstrate the alleged newly discovered 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. Petro,

(1947), syllabus.

-6- Butler CA2016-08-159

{¶ 17} Likewise, appellant's petition for postconviction relief is untimely. R.C.

2953.21(A)(2) states a petition for postconviction relief must be filed no later than 365 days

after the date on which the trial transcript is filed with the court of appeals in the direct

appeal. R.C. 2953.23(A)(1)(a) thru (b) provide that an untimely petition for postconviction

relief may be considered by a trial court where "the petitioner [demonstrates he] was

unavoidably prevented from discovery of the facts upon which the petitioner must rely to

present the claim for relief" and the "petitioner shows by clear and convincing evidence that,

but for constitutional error at trial, no reasonable factfinder would have found the petitioner

guilty of the offense of which the petitioner was convicted * * *."

{¶ 18} Appellant argues that he was unavoidably prevented from discovering the

affidavits relied upon to support his motion for leave, and therefore, the trial court abused its

discretion by finding otherwise. Appellant contends that it would have been impossible for

him to produce this evidence at trial because it did not exist at such time and did not become

available until the affiants later came forward.

{¶ 19} With respect to Smith's affidavit, the trial court properly found it did not

constitute newly discovered evidence, as the affidavit was previously addressed by the trial

court when it dismissed appellant's first petition for postconviction relief, which we affirmed in

Watson V.

{¶ 20} The trial court summarily found appellant failed to meet his burden to show by

clear and convincing proof he was unavoidably prevented from discovering the remainder of

the evidence within the parameters of Crim.R. 33 and R.C. 2953.23, based on the factors in

Petro and an analysis of the reliability and credibility of each supporting affidavit. While the

analysis conducted by the trial court is certainly pertinent to ruling on whether to grant

appellant's motion for new trial and/or petition for postconviction relief, the framework for

ruling on appellant's motion for leave begins with an examination of whether new evidence -7- Butler CA2016-08-159

material to appellant's defense was discovered that the appellant could not with reasonable

diligence have discovered and produced at trial. If appellant meets his burden under Crim.R.

33 and R.C. 2953.23 for newly discovered evidence, then the question becomes whether

such evidence warrants granting a new trial or appellant's petition for postconviction.

{¶ 21} In consideration of Prater's affidavit, appellant has failed to demonstrate he

was unavoidably prevented from presenting such evidence at trial. Prater testified as a

witness for the state at appellant's trial in 1987. Appellant, with reasonable diligence, could

have discovered Prater's "misgivings" concerning his trial testimony within the periods

prescribed by Crim.R. 33 and R.C. 2953.23 for filing a timely motion for new trial and petition

for postconviction relief. Furthermore, neither affidavit provides an explanation as to why

Prater's "misgivings" about his trial testimony was not discovered earlier. For instance, the

affidavits neither address why it was impossible to discuss the issue with Prater earlier nor is

there any indication that Prater refused to recant his trial testimony prior to 2011. Therefore,

appellant has failed to meet his burden of proof to establish unavoidable prevention in

seeking leave to file his motion/petition with respect to Prater's affidavit.

{¶ 22} With respect to the affidavits of Michelle Williams, Blair, and Zanetta Williams,

appellant has met his burden to demonstrate he could not have with reasonable diligence

discovered and produced such evidence at trial. There is no indication that appellant had

knowledge of the existence of the affiants claims within the prescribed periods. Nor was it

possible for appellant to possess such knowledge since Henderson's alleged admissions did

not occur until the 1990s. Therefore, appellant has met his burden of proof to establish

unavoidable prevention in seeking leave to file his motion/petition with respect to the

affidavits of Michelle Williams, Blair, and Zanetta Williams. Accordingly, the trial court erred

by finding appellant did not meet his burden of proof for these three affidavits. However, as

demonstrated by our analysis below, this error was not more than an error of law or judgment

-8- Butler CA2016-08-159

necessitating a finding the trial court abused its discretion.

MOTION FOR NEW TRIAL AND/OR PETITION FOR POSTCONVICTION RELIEF

{¶ 23} Appellant asserts the affidavits submitted in support of his motion/petition do

more than merely impeach or contradict former evidence – as the trial found – but rather,

they establish a new trial would likely have resulted in a different result. Appellant further

asserts the trial court erred in finding the supporting affidavits unreliable and not credible.

Appellant contends the trial court further erred by making these findings without holding an

evidentiary hearing. Therefore, appellant argues the trial court abused its discretion by

denying appellant's motion for new trial and/or petition for postconviction relief.

{¶ 24} The Ohio Supreme Court has stated "[t]he trial court may, under appropriate

circumstances in postconviction relief proceedings, deem affidavit testimony to lack credibility

without first observing or examining the affiant." State v. Calhoun,

(1999). "That conclusion is supported by common sense, the interests of eliminating delay

and unnecessary expense, and furthering the expeditious administration of justice."

Likewise, the decision to hold an evidentiary hearing on a motion for new trial is left to the

sound discretion of the trial court. State v. Zielinksi, 12th Dist. Warren No. CA2014-05-069,

.

{¶ 25} We note that we need not further address Smith's affidavit because the trial

court properly found that it did not constitute newly discovered evidence. Likewise, appellant

failed to meet his burden for unavoidable prevention in regards to Prater's affidavit.

Nonetheless, even if we assume arguendo appellant had met his burden, as discussed

below, Prater's affidavit is still insufficient to warrant the granting of appellant's

motion/petition.

{¶ 26} As stated above, to warrant the granting of a motion for new trial based on

newly discovered evidence in a criminal case, appellant must show the new evidence (1) -9- Butler CA2016-08-159

discloses a strong probability of a different result if the motion is granted, (2) the evidence

has been discovered since the trial, (3) it could not have been discovered in the exercise of

due diligence prior to trial, (4) is material to the issues, (5) is not merely cumulative of former

evidence, and (6) does not merely impeach or contradict the former evidence. State v. Petro,

(1947), syllabus.

{¶ 27} In making credibility determinations, the trial court should consider all the

relevant factors, including, but not limited to "(1) whether the judge reviewing the

postconviction relief petition also presided at the trial, (2) whether multiple affidavits contain

nearly identical language, or otherwise appear to have been drafted by the same person, (3)

whether the affidavits contain or rely on hearsay, (4) whether the affiants are relatives of the

petitioner, or otherwise interested in the success of the petitioner's efforts, and (5) whether

the affidavits contradict evidence proffered by the defense at trial." State v. Calhoun,

(1999). "[A] trial court may find sworn testimony in an affidavit to be

contradicted by evidence in the record by the same witness, or to be internally inconsistent,

thereby weakening the credibility of that testimony."

{¶ 28} Appellant contends the trial court erred by not considering the Calhoun factors

in its credibility analyses. Specifically, appellant asserts the trial court should have been

limited to the five factors listed in Calhoun, and thus, the trial court's consideration of the

timeliness of information contained in the affidavits was improper. However, appellant's

argument that Calhoun provides an exclusive listing of the factors to be considered does not

comport with the plain language of the opinion. The case provides that a trial court should

"consider all relevant factors", and then, proceeds to list five specific factors as "among" the

relevant factors for a trial court to consider. Accord

("Depending on the entire record, one

or more of these or other factors may be sufficient to justify the conclusion that an affidavit

asserting information outside the record lacks credibility"). Therefore, contrary to appellant's - 10 - Butler CA2016-08-159

assertion otherwise, the timeliness of bringing forth the affidavits and the fact they were not

offered until well after Henderson's death were relevant factors for the trial court to consider.

{¶ 29} Appellant argues the trial court erred in its finding that Prater's affidavit was

unreliable and not credible because it unequivocally states he does not believe appellant shot

Mast. Appellant states Prater was a key prosecutorial witness since he identified appellant

as the shooter; therefore, his recanted testimony tends to create a strong probability of a

different result at a new trial. Appellant further argues that individually or collectively, the

affidavits of Michelle Williams, Blair, and Zanetta Williams create a strong possibility of a

different result at trial because they each identify Henderson as the actual shooter.

{¶ 30} We first note that a claim of newly discovered evidence founded in the

recantation of the testimony of an important witness does not alone entitle the appellant to a

new trial. State v. Wood, 12th Dist. Madison No. CA97-08-034,

,

*4 (June 1, 1998). Rather, when such a motion is brought, the trial court, acting as the finder

of fact, must assess the credibility of the alleged recanting testimony.

citing State v.

Moore,

(1st. Dist. 1994); see also Taylor v. Ross,

(1948), paragraph three of the syllabus ("[r]ecanting testimony ordinarily is unreliable and

should be subjected to the closest scrutiny").

{¶ 31} We find the trial court properly considered Prater's affidavit recanting his trial

testimony. In so doing, the trial court acknowledged Prater "had misgivings about" his

identification of appellant as the shooter and found this position to be contradictory to his trial

testimony. The trial court stated recanting affidavits as the basis for a new trial upon newly

discovered evidence are viewed with extreme suspicion and determined Prater's affidavit

lacked reliability and credibility. Appellant argues that the trial court erred by making this

finding solely on the basis the recanting testimony contradicts or impeaches the original

testimony. However, the record does not reflect appellant's assertion. As discussed below, - 11 - Butler CA2016-08-159

the trial court further explained that the circumstances in which the supporting affidavits were

set forth contributed to its finding that the affidavits would not create a strong probability of a

different result.

{¶ 32} Likewise, appellant fails to identify how the affidavits of Michelle Williams,

Blair, and Zanetta Williams do not merely impeach or contradict former evidence. At trial,

Prater, Moon, and Toney all identified appellant as the shooter. The statements in the three

affidavits directly contradict the trial testimony by identifying Henderson as the shooter.

Additionally, Henderson's alleged admissions to Michelle Williams, Blair, and Zanetta

Williams constitute hearsay, as they are statements made by one other than the declarant

while testifying, offered in evidence to prove the truth of the matter asserted. Evid.R. 801(C).

{¶ 33} Appellant asserts the statements fall within a hearsay exception because they

are statements against Henderson's interest. A hearsay statement is admissible pursuant to

Evid.R. 804 where the declarant is unavailable and the statement, at the time of its making,

tended to subject the declarant to criminal liability, such that a reasonable person in the

declarant's position would not have made the statement unless the declarant believed it to be

true. Appellant correctly asserts the alleged admissions would meet this definition because

Henderson is now deceased and the statements tend to subject him to criminal liability as the

actual shooter.

{¶ 34} However, Evid.R. 804(B)(3) further provides that "[a] statement tending to

expose the declarant to criminal liability, whether offered to exculpate or inculpate the

accused, is not admissible unless corroborating circumstances clearly indicate the

trustworthiness of the statement." Furthermore, "[a] bare showing of some extent of

corroboration is not enough. Instead, the rule contemplates a demonstration of corroborating

circumstances which, on balance, persuade the [court] that the statement bears the clear

indicia of reliability and trustworthiness * * *." State v. Branham,

, 359 - 12 - Butler CA2016-08-159

(12th Dist. 1995). Compare State v. Yarbrough,

(2002) (stating

courts usually find statements made to someone sharing a close relationship with the

defendant, such as a spouse or child, a corroborating circumstance, that when considered

with the other circumstances, may support a finding the statements are trustworthy), with

State v. Issa,

(2001) (analyzing circumstances indicating

untrustworthiness, such as circumstances added using hindsight, where the appellant has

something to gain by inculpating another for a crime, and an attempt to shift the blame for the

crime), and State v. Saunders,

(10th Dist. 1984) (explaining a relevant

consideration is whether the corroborating circumstances "lead one to be skeptical about [the

statement's] reliability").

{¶ 35} The trial court identified the circumstances under which the alleged admissions

were made and properly found that they tend to show the untrustworthiness of the

statements. The affidavits state that in the 1990s Henderson told the affiants he was the

actual shooter; yet the affiants waited over a decade before coming forward with this

revelation. In addition to the substantial delay in coming forward, the trial court found that

identifying Henderson, who died of an apparent drug overdose in 2000, as the actual shooter

was "convenient and suspicious", and thus, negated the statements trustworthiness. The

trial court further discussed that Blair ended her relationship with Henderson in 1997 and

Henderson died in 2000, yet she waited until 2011. Similarly, Zanetta Williams avers that her

promise to not tell anyone about the admission dissolved when Henderson passed away, yet

she waited until 2011. The record clearly supports the trial court's findings that the above

circumstances indicate the statements' untrustworthiness; therefore, the alleged admissions

constitute inadmissible hearsay.

{¶ 36} Finally, the trial court determined that appellant's affidavit was self-serving and

- 13 - Butler CA2016-08-159

"of little value and consequence to th[e] court." We find no error in the trial court's decision.1

"Ohio courts have consistently held that affidavits from interested parties such as defendants,

co-defendants, and family members are self-serving and may be discounted." State v.

Robinson, 12th Dist. Butler No. CA2013-05-085,

. Appellant's affidavit

does not set forth any operative facts to support any newly discovered evidence; therefore,

the trial court properly found it to be of little consequence.

{¶ 37} Accordingly, the trial court did not abuse its discretion by denying appellant's

motion/petition without holding an evidentiary hearing when it found the affidavits not credible

and unreliable, and thus, did not create a strong possibility of a different result.

{¶ 38} Appellant's sole assignment of error is overruled.

{¶ 39} Judgment affirmed.

RINGLAND and M. POWELL, JJ., concur.

1. To clarify, a defendant's affidavit in a case such as this will always be "self-serving" in the sense that it supports the relief the defendant seeks. The affidavit is not disqualified merely because it is "self-serving." Rather, an affidavit properly characterized as "self-serving" is subject to the analysis under Calhoun to determine the weight to which it is entitled. State v. Calhoun,

(1999) - 14 -