[Cite as State v. Gray, 2021-Ohio-3670.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 110283 

 v. : 

 

RAMON GRAY, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: October 14, 2021 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-08-507759-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Anthony T. Miranda, Assistant Prosecuting 

Attorney, for appellee. 

G. Michael Goins, for appellant. 

ANITA LASTER MAYS, P.J.: 

Defendant-appellant Ramon Gray (“Gray”) appeals the trial court’s 

decision denying Gray’s motion for leave to file a motion for new trial. We affirm 

the trial court’s decision. 
In 2008, Gray was convicted of two counts of aggravated murder, in 

violation of R.C. 2903.01(A), and one count of having weapons while under 

disability, in violation of R.C. 2923.13(A)(3). At the end of the jury trial, Gray was 

sentenced to life imprisonment without the possibility of parole. 

I. Facts and Procedural History 

On January 11, 2007, Andre Parker (“Andre”) and Willie Deloach 

(“Deloach”) were shot and killed in a parking lot of a night club in the city of 

Cleveland. Deloach was found lying on the ground in the parking lot, and Andre was 

found inside a vehicle. Several people testified that they observed several men 

fighting before the shooting. Eddie Parker (“Eddie”), Andre’s brother, testified that 

he saw Rufus Gray (“Rufus”), the brother of Gray, fighting with Deloach and Gray 

pulling a weapon. As Eddie ran for help, he heard gunshots. Eddie testified that he 

saw Gray, with his hand on top of the car, aiming the gun in the car and shooting at 

Andre. “The coroner also determined that both men had been shot with the same 

weapon.” State v. Gray, 8th Dist. Cuyahoga No. 92303, 2010-Ohio-240, ¶ 4. 

(“Gray I”). 

The Cleveland police matched the fingerprints from the top of the car 

to Gray. Another witness, who called 911, stated that they observed a gray Trofeo 

heading westbound from the shooting location. Shardae Hancock testified that she 

gave her gray Oldsmobile Trofeo to Gray. 

“The police arrested [Gray] in February 2008. After his arrest, Eddie 

identified [Gray] in a physical line-up at police headquarters as the man who shot 
his brother.” Id. at ¶ 8. Gray was tried and convicted of two counts of aggravated 

murder. During the mitigation phase, Gray declined to provide any facts about the 

incident and asked the jury to spare his life. He received a life sentence without the 

possibility of parole and filed an appeal with this court. 

In Gray I, Gray assigned several errors for this court to review. The 

court affirmed Gray’s convictions. On January 21, 2014, Gray filed a petition for 

postconviction relief. The trial court denied Gray’s petition stating that the motion 

was untimely and barred by res judicata. Judgment entry No. 82891520 (Feb. 6, 

2014). 

In 2017, Gray filed a motion for leave to file delayed motion for new 

trial pursuant to Crim.R. 33(A)(6). In that motion, Gray argued that he was 

unavoidably prevented from discovering new evidence. Gray argues that at the time 

Andre and Deloach were killed, he was fighting with Curtis Davis (“Davis”).1 He 

furthered argued that he did not know the name of the man he was fighting with so 

he could not call him as an alibi witness at his trial. On March 27, 2018, the trial 

court conducted a hearing on the motion, and on June 5, 2018, the trial court denied 

Gray’s motion. 

Gray filed an appeal in State v. Gray, 8th Dist. Cuyahoga No. 107394, 

2019-Ohio-1638 (“Gray II”), arguing that the trial court erred when it denied his 

motion for leave to file a motion for a new trial. This court affirmed the trial court’s 

1 Gray met Davis in a prison library at the Lake Erie Correctional Institution where 

they were both incarcerated. 
decision, stating, Gray “had to establish, by clear and convincing evidence, that he 

was unavoidably prevented from discovering the new evidence as a predicate for 

obtaining leave to file a new trial.” Id. at ¶ 13. The court continued, stating, “even 

assuming [Gray] established he was unavoidably prevented from discovering the 

name of Davis, [Gray’s] motion for leave was not filed within a reasonable time after 

he learned of the new evidence.” Id. at ¶ 17. 

In April 2020, Gray filed another motion for leave to file a motion for 

a new trial. On January 12, 2021, the trial court denied Gray’s motion stating, 

Defendant’s motion for leave to file motion for new trial filed 

4/20/2020 is denied. On 6/5/2018, after having considered the 

arguments made in defendant’s motion for leave to file delayed 

motion for new trial, the state of Ohio’s brief in opposition, and having 

held a hearing on such motion, this court denied the motion for leave, 

subsequently, this court’s ruling was affirmed by the 8th District 

Court of Appeals on 5/02/2019. Further, by entry dated 8/5/2019, 

the Ohio Supreme Court declined to accept jurisdiction of appeal. 

This court has already made its finding pursuant to Crim.R. 33. The 

evidence is not newly discovered, defendant was not unavoidably 

prevented from discovering the information and finally, the 

defendant’s claims are barred by the doctrine of res judicata. 

Judgment entry No. 115694897 (Jan. 13, 2021). 

In response to the trial court’s denial of Gray’s motion for leave to file 

motion for new trial, Gray filed this appeal assigning three errors for our review: 

I. The trial court abused its discretion and violated appellant’s 

due process rights, when it denied appellant’s motion for leave, 

finding appellant failed to show by clear and convincing 

evidence he was unavoidably prevented from discovering the 

evidence that appellant introduced in his motion for new trial 

when the evidence on its face demonstrated such 

unavoidableness; 
II. The trial court abused its discretion when it denied appellant’s 

motion for leave to file a motion for new trial without 

conducting an evidentiary hearing, as appellant submitted 

documentation that on its face supported appellant’s claim that 

he was unavoidably prevented from discovering said evidence 

earlier; and 

III. The trial court abused its discretion when it ruled appellant’s 

4/20/2020 motion for leave to file a motion for new trial was 

barred by the doctrine of res judicata.

We would like to note that Gray’s arguments are identical to the 

arguments in Gray II. In Gray II, this court ruled that “the trial court’s denial of his 

motion for leave to file a motion for new trial was not an abuse of discretion.” Id. at 

¶ 18. Because Gray’s first assignment of error is dispositive of the appeal and barred 

by res judicata, we decline to address the remaining assignments of error. 

App.R. 16(A). 

II. Motion for Leave and Res Judicata 

 A. Standard of Review 

Motions for a new trial under Crim.R. 33(B) based on “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.” Additionally, “[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. This court reviews the 
denial of a motion for leave to file a delayed motion for new trial for an abuse of 

discretion. State v. Dues, 8th Dist. Cuyahoga No. 105388, 2017-Ohio-6983, ¶ 11. An 

abuse of discretion is not simply an error of law or judgment; it implies the court’s 

attitude is unreasonable, arbitrary, or unconscionable. State v. Yates, 8th Dist. 

Cuyahoga No. 96664, 2011-Ohio-4962, ¶ 5. 

B. Law and Analysis

Because the arguments Gray makes in this appeal were previously 

considered and rejected in his prior appeal, the doctrine of res judicata applies. 

State v. Shabazz, 8th Dist. Cuyahoga No. 100623, 2014-Ohio-3142, ¶ 13. “Res 

judicata bars any claim for postconviction relief that the petitioner raised or could 

have raised on direct appeal.” Id., citing State v. Lentz, 70 Ohio St.3d 527, 639 

N.E.2d 784 (1994), syllabus. “‘In order to overcome the res judicata bar, the 

petitioner must show, through the use of extrinsic evidence, that he or she could not 

have appealed the original constitutional claim based on the information in the 

original trial record.’” State v. Cody, 8th Dist. Cuyahoga No. 102213, 2015-Ohio2764, ¶ 16, quoting State v. Combs, 100 Ohio App.3d 90, 97-98, 652 N.E.2d 205 

(1st Dist.1994). 

Gray has not demonstrated that he was unavoidably prevented from 

discovering Davis’s name. According to the affidavit that Gray submitted in Gray 

II, 

while [Gray] was serving time at Lake Erie Correctional Institution, 

Davis began serving a ten-year sentence at the same facility in late 

2015. Davis approached [Gray] and indicated he was the fourth man 
who fought with [Gray] on the day of the murders. Davis’s affidavit 

depicts the same facts as those presented above. Davis did not offer an 

alibi for [Gray] at trial due to his fear of being shot or beat up by Eddie 

Parker. Davis now avers that [Gray] did not have a weapon on the 

night in question and [Gray] did not shoot Andre Parker or Willie 

DeLoach; [Gray] was with Davis on East 142nd when those 

individuals were shot. Davis kept a low profile to avoid any 

encounters with the police or Eddie Parker and, as a result, it would 

have been difficult to locate Davis following the shootings. 

Id. at ¶ 7. 

Akin to the decision in Gray II, we agree that 

even assuming [Gray] established he was unavoidably prevented from 

discovering the name of Davis, [Gray’s] motion for leave was not filed 

within a reasonable time after he learned of the new evidence. Davis 

was transferred to the Lake Erie Correctional Institution in late 2015. 

Davis’s affidavit was not obtained until December 2017. The lapse of 

two years is outside a reasonable timeframe. 

Id. at ¶ 17. 

Gray also argued that his brother, Rufus, confessed to shooting both 

men. Although Gray previously argued this point, he now contends that it qualifies 

as new evidence because Rufus did not previously admit to shooting the men, but 

rather that he just shot the gun in the air. Rufus was also tried for the murders and 

found not guilty because only Gray’s fingerprints were found on the gun and a 

witness saw Gray shoot one of the men. Also, during the trial it was determined that 

both men were shot by the same gun. However, we recognize that at Gray’s trial, 

Rufus did not testify even though he was not barred by the Fifth Amendment to the 

U.S. Constitution right against self-incrimination. Additionally, the aforementioned 

information was presented in the 2017 affidavit, and therefore, not deemed as new 
evidence. Finally, the affidavit of the female witness stating that Rufus confessed to 

her that he was the shooter is also not new evidence because it is just reiterating 

Rufus’s statement. Therefore, her statement is also barred by res judicata, as these 

arguments were raised or should have been raised previously. 

We overrule Gray’s argument, determine that it is barred by res 

judicata, and find that the trial court did not abuse its discretion when it denied 

Gray’s motion for leave to file a motion for new trial. We decline to address the 

remaining assignments of error. 

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. 

______________________________________ 

ANITA LASTER MAYS, PRESIDING JUDGE 

LARRY A. JONES, SR.*, J., and 

MARY EILEEN KILBANE, J., CONCUR 

* Judge Larry A. Jones, Sr., concurred in this Journal Entry and Opinion prior to 

his death on October 7, 2021. 

(The Ohio Constitution requires the concurrence of at least two judges when 

rendering a decision of a court of appeals. Therefore, this announcement of decision 

is in compliance with constitutional requirements. See State v. Pembaur (1982), 69 

Ohio St.2d 110.)