[Cite as State v. Keith, 2017-Ohio-5488.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

CRAWFORD COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 3-17-01 

 v. 

KEVIN A. KEITH, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Crawford County Common Pleas Court 

Trial Court No. 94-CR-0042 

Judgment Affirmed 

Date of Decision: June 26, 2017 

 

APPEARANCES: 

 

Rachel Troutman and Zachary M. Swisher for Appellant 

 Matthew E. Crall for Appellee 
Case No. 3-17-01 

-2- 

SHAW, J.

{¶1} Defendant-appellant, Kevin Keith (“Keith”), brings this appeal from the 

January 13, 2017, judgment of the Crawford County Common Pleas Court denying 

Keith’s “Motion for Leave to File Delayed Motion for New Trial Based on Newly 

Discovered Evidence.” 

Facts and Procedural History

{¶2} In February of 1994 Keith was indicted for three counts of Aggravated 

Murder with capital-offense specifications and three counts of Attempted 

Aggravated Murder. Following a two-week jury trial, Keith was found guilty of all 

counts against him. The jury recommended, and the trial court imposed, a death 

sentence for each of the Aggravated Murder counts. This Court affirmed the 

convictions and sentence in State v. Keith, 3d Dist. Crawford No. 1996 WL 156710. 

The Supreme Court of Ohio then reviewed and affirmed the convictions and 

sentence in State v. Keith, 79 Ohio St.3d 514 (1997). 

{¶3} In the Supreme Court of Ohio’s opinion affirming Keith’s convictions 

and sentence, the following facts were presented, which we quote from at length to 

provide context for the current appeal. 

On the evening of February 13, 1994, Marichell Chatman, 

her seven-year-old daughter, Marchae, and Richard Warren, 

who had been living with Marichell and Marchae for several 

weeks, were at Marichell’s apartment in the Bucyrus Estates. At 

the time, Marichell was babysitting her young cousins, Quanita 

and Quinton Reeves. At approximately 8:45 p.m., Marichell’s 
Case No. 3-17-01 

-3- 

aunt, Linda Chatman, arrived at the apartment to pick up 

Quanita and Quinton, Linda’s niece and nephew. 

A few minutes after Linda arrived, Warren, momentarily 

diverted from a basketball game he was watching on television, 

noticed a man standing outside the apartment door. Although the 

man began to walk away without knocking, Warren opened the 

door. The man turned and asked for Linda. 

While Linda went outside and spoke with the man, Marichell 

told Warren the man’s full name. Although Warren could recall 

only the first name, Kevin, he later identified appellant as the man 

at the door. Marichell also mentioned that Kevin had been 

involved in a big drug bust. 

After a short time, Linda and appellant returned to the 

apartment, where appellant and Warren had a brief 

conversation. According to Warren, appellant appeared to have 

his turtleneck shirt pulled up over the bottom part of his face and 

even drank a glass of water through it. 

After drinking the glass of water, appellant pulled a ninemillimeter handgun from a plastic bag he carried and ordered 

everyone to lie on the floor. Appellant repeatedly scolded 

Marichell for using his first name when she asked what he was 

doing and why. Despite Marichell’s pleas with appellant on 

behalf of the children, appellant placed the gun to her head. After 

ordering Marichell to be quiet, appellant said, “Well, you should 

have thought about this before your brother started ratting on 

people.” Marichell responded, “Well, my brother didn’t rat on 

anybody and even if he did, we didn't have anything to do with 

it.” Testimony at trial confirmed that Marichell’s brother, Rudel 

Chatman, was a police informant in a drug investigation involving 

appellant. According to the presentence report, the month prior 

to the murders, appellant was charged with several counts of 
Case No. 3-17-01 

-4- 

aggravated trafficking.1

Next, Warren heard a gunshot but was forced to turn away 

when a bullet struck him in the jaw. Warren heard ten to twelve 

additional shots, two more striking him in the back. After he 

heard the apartment door close, Warren ran out of the 

apartment, across a snow-covered field to Ike’s Restaurant, 

yelling for help. Four or five more shots were fired, one striking 

him in the buttocks and knocking him down. Warren was able to 

get up and obtain help from the restaurant. 

Another Bucyrus Estates resident, Nancy Smathers, heard 

several popping noises at approximately 9:00 p.m. As she looked 

out her front door, Smathers saw a large, stocky black man run 

to the parking lot and get into a light-colored, medium-sized car. 

As the car sped away, it slid on the icy driveway and into a 

snowbank. When the driver got out of the car, Smathers noticed 

that the car’s dome light and the light around the license plate did 

not work. The driver rocked the car back and forth for nearly 

five minutes before he was able to free the car from the snowbank. 

Several weeks later, Smathers informed Bucyrus Police Captain 

Michael Corwin that, after seeing appellant on television, she was 

ninety percent sure appellant was the man she had seen that night. 

When medical personnel arrived at the Bucyrus Estates 

apartment, Linda and Marichell Chatman were dead, having 

suffered multiple gunshot wounds, including fatal wounds to the 

neck or head. All three children initially survived the attack. 

However, Marchae’s two gunshot wounds to her back proved 

fatal. The Reeves children each sustained two bullet wounds and 

serious injuries. 

Approximately eight hours after the shootings, Warren was 

recovering from surgery at a Columbus hospital. During a 

 

1

 Although the Supreme Court of Ohio only cites the presentence report as indicating that the month prior to 

the murders Keith was charged with several counts of aggravated trafficking, there was testimony about this 

issue during the trial itself for the jury to consider. Lieutenant David Dayne of the Galion Police Department 

testified that Rudell Chatman, Marichell’s brother, worked with police on a “covert drug operation[]” 

regarding Keith, which resulted in a series of indictments, including four counts of “trafficking” against 

Keith. (Trial Tr. at 589-90). According to Dayne, Keith was “out on bond” on those trafficking charges at 

the time of the murders in this case. (Id. at 590). 
Case No. 3-17-01 

-5- 

postoperative interview with a nurse, Warren wrote “Kevin” on 

a piece of paper as the name of his assailant. Later that day, 

Bucyrus Police Captain John Stanley had two telephone 

conversations with Warren. During the second conversation, 

Stanley mentioned three or four possible last names for Kevin. At 

trial, Stanley could only recall that he mentioned the names Kevin 

Thomas and Kevin Keith. Warren stated that he was seventy-five 

percent sure the name he heard from Marichell was Kevin Keith. 

When shown a photo array of six suspects, Warren chose 

appellant’s picture and told police he was ninety-five percent sure 

that appellant was the murderer. 

Investigators recovered a total of twenty-four cartridge 

casings from the crime scene area, which had all been fired from 

the same gun. In addition to those, investigators recovered a 

casing found on the sidewalk across from the entrance to a 

General Electric plant. On the night of the murders, appellant 

picked up his girlfriend, Melanie Davison, from work at the 

entrance to the General Electric plant where the casing was 

found. 

At the snowbank where Smathers witnessed the getaway car 

slide, investigators made a cast of the tire tread and of the 

indentation in the snowbank made by the car’s front license plate 

number—“043.” The indentation from the license plate matched 

the last three numbers of a 1982 Oldsmobile Omega seized from 

Melanie Davison shortly after she visited appellant in jail, under 

the pseudonym of Sherry Brown, a few weeks after the murders. 

The Oldsmobile was registered to Alton Davison, Melanie’s 

grandfather, and was also regularly used by Melanie. Davison 

had put four new tires on the Omega six months prior to the 

murders. Davison estimated that by February 1994, the new tires 

had been driven less than 3,000 miles without any problems or 

need for replacement. Although the cast taken of the tire tread at 

the crime scene did not match tires found on the Oldsmobile 

Omega one month later, the cast did match the tread of the tires 

purchased by Alton Davison as shown on the tire’s sales 
Case No. 3-17-01 

-6- 

brochures.2

 Additionally, the tires found on the Oldsmobile 

Omega had been manufactured in January 1994 and showed a 

minimal amount of wear.3

* * * 

After a two-week trial, a jury found appellant guilty of all counts. 

State v. Keith, 79 Ohio St.3d 514, 514-517. (1997) 

{¶4} Following the Supreme Court of Ohio’s affirmance of Keith’s 

convictions and his sentence in 1997, Keith filed numerous post-conviction 

petitions, habeas corpus petitions, and motions for a new trial, which included 

motions for a new trial based on “newly discovered evidence.” All of Keith’s 

arguments have been analyzed and repeatedly rejected by the courts reviewing 

them, whether State or Federal.4

 

2

 Michelle Yezzo, whose testimony is primarily at issue in this appeal, testified that the partial tire imprint 

was similar to the tire markings in the brochure. 

3

 We would add that testimony at trial indicated that the seized vehicle’s dome light did not work and that 

the license plate light did not work either, corroborating the testimony of Smathers. 

4

 This Court provided a history of Keith’s various attempts to overturn his conviction up to 2011 in State v. 

Keith, 3d Dist. Crawford No. 3-10-19, 2011-Ohio-407. The following is a brief summary of that history. 

Keith filed his first petition for post-conviction relief in 1998, which was denied and the denial was affirmed 

on appeal. State v. Keith, 3d Dist. No. 3-98-05, 1998 WL 487044. In 1999 Keith filed a habeas corpus 

petition in a federal district court presenting eight grounds for relief, which was denied in 2001. That habeas 

petition was appealed and denied on appeal by the Sixth Circuit. Keith v. Mitchell, 455 F.3d 662 (C.A.6, 

2006). In 2004 Keith filed a second petition for postconviction relief, which was denied, appealed to this 

Court, and the denial was affirmed. In 2007, Keith filed a motion for leave to file a delayed motion for new 

trial, which was denied, and he also filed a motion to reopen his direct appeal which was denied and affirmed 

by the Supreme Court of Ohio. State v. Keith, 119 Ohio St.3d 161, 2008-Ohio-3866. In 2008 Keith filed a 

motion for an evidentiary hearing for his motion for new trial, which was denied and affirmed on appeal. 

State v. Keith, 3d Dist. Crawford No. 3-08-15, 2008-Ohio-6187. In 2009 the Sixth Circuit Court of Appeals 

denied Keith’s request to have a second habeas corpus petition considered. Keith v. Bobby, 551 F.3d 555 

(2009). In May of 2010, Keith filed another motion for leave to file a delayed motion for a new trial arguing 

that the State had improperly suppressed evidence. The trial court denied that motion and it was affirmed by 

this Court on appeal. State v. Keith, 3d Dist. Crawford No. 3-10-19, 2011-Ohio-407. In March of 2014, it 

appears that Keith filed another Habeas petition in United States District Court, which was transferred to the 

Sixth Circuit Court of Appeals due to being a successive petition. See Keith v. LaRose, N.D. Ohio, 2014 WL 

1369655. 
Case No. 3-17-01 

-7- 

{¶5} After the exhaustion of his appeals, Keith was scheduled to be executed 

on September 15, 2010. However, on September 2, 2010, Keith’s sentence of death 

was “commuted to a term of life in prison without the possibility of parole” by thenGovernor Ted Strickland.5

 (Doc. 232). 

{¶6} After Keith’s sentence was commuted to life in prison, Keith filed 

multiple, additional motions for a new trial, one of which was denied and one which 

was dismissed. 

{¶7} On October 28, 2016, Keith filed another motion titled, “Motion for 

Leave to File Delayed Motion for New Trial Based on Newly Discovered 

Evidence,” which is the primary subject of the current appeal. (Doc. No. 263). In 

his “Motion for Leave,” Keith argued that he had obtained the personnel file of the 

State’s forensic expert, G. Michelle Yezzo, which had not been provided to him in 

discovery prior to his trial. Keith contended that Yezzo’s personnel file contained 

statements dating back to 1989 which indicated that some of Yezzo’s coworkers felt 

she was mentally unstable, that Yezzo had used racial slurs, that Yezzo had a 

reputation among her coworkers for “stretch[ing] the truth to satisfy a department,” 

and that Yezzo’s coworkers thought that her findings and conclusions regarding 

 

5

 We would note that in his brief, Keith states that Governor Strickland commuted his sentence to a life 

sentence, “citing doubts about Keith’s guilt as his reasoning for the commutation.” (Appt.’s Br. at 1). 

Nowhere in the Warrant of Commutation of Sentence, which is included in the record, does Strickland cite 

“doubts” specifically about Keith’s “guilt.” 
Case No. 3-17-01 

-8- 

evidence “may be suspect.”6

 Keith claimed that Yezzo’s testimony was critical in 

convicting him by linking him to the car that fled the murder scene that got stuck in 

the snow as witnessed by Smathers. Keith argued that the information contained in 

Yezzo’s personnel file would have been significant impeachment evidence of the 

State’s forensic expert. 

{¶8} Keith contended that he had no knowledge of the information contained 

in Yezzo’s personnel file until 2016, that he certainly was not provided Yezzo’s 

personnel file prior to his trial by the State, and that the State had not provided the 

personnel file at any time since. Further, Keith argued that BCI initially denied a 

public records request filed by Keith’s counsel regarding Yezzo in 2009, though 

that request did not seek Yezzo’s personnel file. Keith did eventually obtain the 

records he sought in the 2009 public records request, though not Yezzo’s personnel 

file because it was not requested; nevertheless, Keith speculated that access to 

Yezzo’s personnel file would have been denied like his original 2009 public records 

request, establishing that he was unavoidably prevented from obtaining Yezzo’s 

personnel records. 

{¶9} Keith supported his “Motion for Leave” by citing a separate trial court 

case, State v. Parsons, Huron No. CR930098, wherein the Huron County Common 

Pleas Court granted a defendant leave to file a motion for a new trial on the basis of 

 

6

 Daniel L. Chilton, “Assistant Superintendent,” catalogued the complaints of Yezzo’s peers from a meeting 

of the “Mircro Section,” and wrote them in a memo to Paul Ferrara, the Superintendent on May 11, 1989. 
Case No. 3-17-01 

-9- 

the State’s failure to disclose Yezzo’s personnel file in a 1993 murder case. Later, 

the same trial court actually granted the defendant a new trial based on the State’s 

failure to disclose Yezzo’s personnel file and the impeachment evidence contained 

therein. In doing so, the Huron County Common Pleas Court found that Yezzo’s 

testimony was “important and significant in establishing [a specific] tool as the 

murder weapon and ultimately securing a conviction for the State.” (Doc. No. 265, 

Ex. 17). According to the Huron County Common Pleas Court’s entry, Parsons was 

only charged with murder over 10 years after the actual murder of his wife, and the 

trial court speculated that the cold case was perhaps only pursued on the basis of 

Yezzo’s forensic findings linking the perceived murder weapon to Parsons. (Id.) In 

this case, Keith contended that his situation was similar to Parsons, arguing that 

Yezzo’s testimony was critical in convicting him, and that at the very least his 

“Motion for Leave” should be granted. 

{¶10} In the exhibits Keith included with his “Motion for Leave,” Keith 

attached the affidavit of Lee Fisher, who was Ohio’s Attorney General from 1991-

1995. Fisher’s affidavit stated that had he known in 1994 what he knows now 

regarding Yezzo’s personnel file he “would not have permitted Ms. Yezzo to 

provide testimony against Kevin Keith. I also would have ordered the submitted 

evidence to be reanalyzed by a separate analyst.” (Doc. No. 265, Ex. 3, p.3). 
Case No. 3-17-01 

-10- 

{¶11} By way of context regarding Yezzo’s testimony during Keith’s trial 

specifically, Yezzo testified via a trial deposition that was read into the record.7

 

Yezzo’s testimony indicated that she had been at BCI for over 17 years, that she had 

testified over 200 times in 49 counties in Ohio and that she had been qualified as an 

expert in prior cases. Specifically regarding this case, Yezzo testified that she was 

able to identify the numbers “043” in the region of the purported license plate area 

from impressions the license plate left in the snow bank when the vehicle was stuck, 

and that the numbers from the plate were in an area similarly placed to what they 

would be on the vehicle linked to Keith. Yezzo also testified that the tire tracks left 

at the scene were similar in tread pattern to the pattern in a tire brochure that had 

been submitted to her. Other witnesses were used to establish that the tires had been 

recently changed on the vehicle linked to Keith. 

{¶12} However, it is also important to note that on cross-examination Yezzo 

indicated that she could not state with certainty that the license plate from the vehicle 

linked to Keith was the one that made the impression in the snow. In fact, Yezzo 

acknowledged that defense counsel had a list of numerous vehicles containing the 

 

7

 At oral argument, Keith’s attorneys insinuated that a trial deposition was used because Yezzo was on 

administrative leave from BCI for the issues specific to this case, such as her work performance. This is not 

accurate. The record indicates that Yezzo was placed on leave “to explore allegations of threatening 

statements that [Yezzo] made regarding an employee or employees of the Bureau of Criminal Identification 

& Investigation.” Yezzo’s personnel file details these purported threats, which Yezzo addressed and her 

responses were contained in the record. There is absolutely no indication that Yezzo was placed on leave for 

the allegations now being raised regarding substandard work or for falsifying documents to satisfy law 

enforcement. 
Case No. 3-17-01 

-11- 

sequential digits “043” from Richland and Crawford Counties alone. This 

supported the theory put forth by Keith’s trial counsel to the jury that there were 

several other potential suspects, including Bruce Melton and Rodney Melton who 

had access to a car that had the sequential digits “043” in it. 

{¶13} Yezzo also testified on cross-examination that she analyzed sweepings 

taken from the vehicle linked to Keith, and found no fibers inside connecting it to 

the murders. As to the tire tread similarities, Yezzo testified that she could only 

state that the tread pattern from the impression left in the snow was “similar” to 

those provided to her in a brochure because she only had a partial tread design from 

the print. (Yezzo Depo. Tr. at 23). Finally, defense counsel was able to get Yezzo 

to acknowledge that Keith’s footwear, which had been obtained when Keith was 

later arrested, did not match the prints left at the scene. 

{¶14} On the same date that he filed his “Motion for Leave,” Keith also filed 

a document titled, “Motion for New Trial Based on Newly Discovered Evidence 

and/or Post-Conviction Relief Under Ohio Rev. Code § 2953.23.” In the motion 

Keith argued more specifically that Yezzo’s testimony was critically important in 

convicting him and that it was thus essential to have the “newly discovered 

evidence” to impeach Yezzo pursuant to Brady v. Maryland, 373 U.S. 83 (1963), 

and the State did not provide the file. Separately, Keith made essentially the same 
Case No. 3-17-01 

-12- 

arguments in the context of a successive petition for post-conviction relief under 

R.C. 2953.23. 

{¶15} On October 31, 2016, the trial court filed an entry determining that 

Keith’s actual “Motion for New Trial” was file-stamped erroneously by the clerk of 

courts, as it could not have been deemed to be filed until the court granted leave. 

The trial court then ordered a briefing schedule for the State to respond to Keith’s 

“Motion for Leave” and for Keith to reply in support of his motion. 

{¶16} Subsequently the State filed its brief in response to Keith’s “Motion 

for Leave.” The State argued Yezzo’s personnel records were not required pursuant 

to Brady because the State was not aware of Yezzo’s records, the State did not have 

them, and that in any event Yezzo’s personnel records were not material to Keith’s 

trial. The State argued that the portions Keith cited from Yezzo’s personnel file 

calling her unstable, her conclusions unreliable, and questioning her integrity were 

actually from a summary of complaints made by Yezzo’s coworkers during a union 

action, not any of her superiors. The State argued that there was no indication that 

any disciplinary action or other internal adjudication was ever taken against Yezzo 

on these issues or that the opinions of Yezzo’s coworkers were the opinions of the 

BCI administration. In fact, the State argued that Yezzo’s personnel file contained 

yearly reports with almost universally positive performance reviews. Moreover, the 

State argued that the evidence in Yezzo’s personnel files would not have been 
Case No. 3-17-01 

-13- 

admissible at trial regardless as the pertinent documents contained improper hearsay 

within hearsay and improper character evidence. 

{¶17} Furthermore, as to the testimony provided by Yezzo at trial more 

specifically, the State argued that a layman could clearly see the imprint of the 

license plate numbers “043” that were imprinted in the snowbank in this case and 

that a police officer actually stated this himself at trial separate from Yezzo’s 

testimony, meaning that Yezzo added almost nothing with regard to the license plate 

number. As to the tire imprint, the State argued that Yezzo merely testified that the 

tire tracks were similar to tires that had purportedly been on the car at one time and 

that a separate witness testified that the tires had been changed without the 

permission of the owner. 

{¶18} Finally, the State argued that Keith was required to clearly and 

convincingly show that he was unavoidably prevented from discovering the new 

evidence and he could not do so here. However, the State argued that even if Keith 

could show he was unavoidably prevented from discovering Yezzo’s personnel file, 

the evidence against Keith was simply overwhelming in this case, particularly given 

the eyewitness testimony. 

{¶19} On November 21, 2016, Keith filed a reply memorandum in support 

of his “Motion for Leave.” Separately, Keith also filed a “Motion to Supplement 

Motion for Leave to File Delayed Motion for New Trial and Successor Petition for 
Case No. 3-17-01 

-14- 

Post-Conviction Relief Under R.C. § 2953.23.” In his “Motion to Supplement,” 

Keith argued that in a separate case in 2003, not involving Keith, there was a public 

records request for Yezzo’s personnel files and the response to that request did not 

include the most damaging information against Yezzo from her personnel file. 

Keith argued that this further proved he was unavoidably prevented from 

discovering the information in Yezzo’s personnel file. Keith also specifically noted 

that leave of court was not required to file a successive petition for post-conviction 

relief, “thus it is unclear what is the effect of those claims on this Court’s October 

31, 2016 ruling,” which had determined that Keith’s “Motion for New Trial” was 

improperly file-stamped by the clerk of courts. (Doc. No. 270, fn. 1). 

{¶20} On January 13, 2017, the trial court issued a 13-page judgment entry 

on the matter denying Keith’s “Motion for Leave.” In its entry, the trial court 

summarized the parties’ arguments, the applicable legal standards, Yezzo’s 

testimony, and then conducted an analysis of the matter. In its analysis, the trial 

court also noted that Yezzo was subject to cross-examination during her trial 

deposition, wherein defense counsel could have explored her qualifications, 

deficiencies and disciplinary actions. The trial court noted that even though defense 

counsel did not probe these areas, it did not mean the information was unavailable 

to the defense. 
Case No. 3-17-01 

-15- 

{¶21} The trial court also determined that the information contained in 

Yezzo’s personnel file was available through a public records request, that defense 

counsel made a request for public records in 2009 but did not include Yezzo’s 

personnel file at that time, and that defense counsel failed to show the information 

was unavailable at the time of trial. 

{¶22} The trial court concluded by determining that Keith had to show by 

clear and convincing evidence that the information in Yezzo’s personnel file was 

unavailable to him with the exercise of reasonable diligence and he had failed to 

meet that standard as the information in Yezzo’s personnel file could have been 

obtained through cross-examination or a public records request. Keith’s “Motion 

for Leave” was thus denied. Keith then filed an appeal of the denial of his “Motion 

for Leave” with this Court, asserting the following assignments of error for our 

review. 

Assignment of Error No. 1 

The trial court erred in denying appellant’s motion for leave to 

file a new trial motion based on newly discovered evidence. 

Assignment of Error No. 2 

The trial court erred in holding that Keith failed to demonstrate 

a Brady violation. 

Assignment of Error No. 3 

The trial court erred in striking the filing of Keith’s successor 

post-conviction petition and new trial motion. 
Case No. 3-17-01 

-16- 

First Assignment of Error

{¶23} In his first assignment of error, Keith argues that the trial court abused 

its discretion in denying his motion for leave to file a motion for a new trial based 

on newly discovered evidence. 

{¶24} The time for filing a motion for a new trial based on newly discovered 

evidence is governed by Crim.R. 33(B). It reads, 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, 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.

{¶25} Crim.R. 33(B) has thus been interpreted as having “a two-step 

procedure when a defendant seeks to file a motion for new trial outside the 120–day 

deadline.” State v. Howard, 10th Dist. Franklin No. 15AP-161, 2016-Ohio-504, ¶ 

48. “In the first step, the defendant must demonstrate that he was unavoidably 

prevented from discovering the evidence relied upon to support the motion for new 

trial.” State v. Bethel, 10th Dist. No. 09AP–924, 2010-Ohio-3837, 2010 WL 

3239480, ¶ 13. In the second step, if the defendant does establish unavoidable 

prevention by clear and convincing evidence, the defendant must file the motion for 

new trial within seven days from the trial court’s order finding unavoidable 
Case No. 3-17-01 

-17- 

prevention. Id., citing State v. Woodward, 10th Dist. Franklin No. 08AP–1015, 

2009-Ohio-4213. 

{¶26} “A defendant demonstrates he was unavoidably prevented from 

discovering the new evidence within the 120–day time period for filing a motion for 

new trial when the defendant ‘had no knowledge of the evidence supporting the 

motion for new trial and could not have learned of the existence of the evidence 

within the time prescribed for filing such a motion through the exercise of 

reasonable diligence.’ ” Howard at ¶ 49, quoting Bethel at ¶ 13, citing State v. 

Berry, 10th Dist. Franklin No. 06AP–803, 2007-Ohio-2244, ¶ 19. “Clear and 

convincing proof that the defendant was ‘unavoidably prevented’ from filing 

‘requires more than a mere allegation that a defendant has been unavoidably 

prevented from discovering the evidence he seeks to introduce as support for a new 

trial.’ ” State v. Lee, 10th Dist. Franklin No. 05AP–229, 2005-Ohio-6374, ¶ 9, 

quoting State v. Mathis, 134 Ohio App.3d 77, 79 (1st Dist.1999). The standard of 

clear and convincing evidence has been defined by the Supreme Court of Ohio as 

“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.” Cross v. Ledford, 161 Ohio St. 469 (1954), 

paragraph three of the syllabus. 
Case No. 3-17-01 

-18- 

{¶27} We review a trial court’s decision granting or denying a Crim.R. 33(B) 

motion for leave to file a delayed motion for a new trial under an abuse of discretion 

standard.8

 Howard, supra, at ¶ 46. An abuse of discretion is a decision that implies 

the court’s determination was arbitrary, unreasonable, or unconscionable. 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). 

{¶28} With the preceding standards in mind, we must thus determine 

whether the trial court abused its discretion in finding that Keith failed to 

demonstrate by clear and convincing evidence that he was unavoidably prevented 

from discovering Yezzo’s personnel file and the statements contained therein. 

{¶29} In denying Keith’s “Motion for Leave” in this case, the trial court 

made two primary findings: 1) Yezzo was subject to cross-examination and Keith 

could have attacked her qualifications and performance in her trial deposition in 

order to learn about her, particularly on any disciplinary issues, but he chose not to 

do so; and 2) Keith did not meet his burden to establish that Yezzo’s personnel file 

was unavailable through a public records request. 

 

8

 Had the trial court granted Keith leave to actually file a motion for a new trial, we would also review the 

trial court’s decision on the motion for a new trial itself under an abuse of discretion standard. However, in 

order to actually obtain a new trial, Keith would have to show far more than he was unavoidably detained 

from discovering the evidence. He would have to 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. Petro, 148 Ohio St. 505 (1947), at syllabus. As will be discussed infra Keith 

cannot establish that there was a strong possibility the evidence would change the result of his trial, and he 

would have difficulty establishing multiple other provisions under Petro as well. 
Case No. 3-17-01 

-19- 

{¶30} On appeal, Keith claims that both of the trial court’s findings were 

erroneous. He contends that with regard to the cross-examination of Yezzo, the 

pertinent impeachment evidence was not disclosed by the State and unknown by the 

defense thus cross-examination could not cure the issue, and with regard to the 

public records request, Keith claimed that in other cases unrelated to Keith it had 

proven difficult to obtain Yezzo’s personnel file. Further, Keith argued that a public 

records request regarding Yezzo in 2009 that did not request her personnel file was 

initially denied. 

{¶31} We will address the trial court’s second finding regarding Keith’s 

ability to make a public records request as it is dispositive of this assignment of 

error. In its entry on the matter, the trial court noted that the record did not show 

that Keith’s original defense counsel attempted to obtain any information 

concerning Yezzo’s personnel file prior to trial. The trial court added that Keith did 

not establish by clear and convincing evidence that he could not obtain Yezzo’s 

personnel file through a public records request prior to the time of his trial or within 

a reasonable time thereafter. The trial court further stated that Keith seemingly 

waited 15 years to request any public records regarding Yezzo and that when Keith 

made a public records request in 2009, the request still did not even include Yezzo’s 

personnel file. Thus the trial court determined that Keith failed to meet his burden 

by clear and convincing evidence that he was unavoidably prevented from obtaining 
Case No. 3-17-01 

-20- 

Yezzo’s personnel file prior to 2016, as the record is devoid of any actual indication 

that such an attempt was made and denied. 

{¶32} While Keith points to other cases where Yezzo’s personnel file may 

have been left out of discovery or portions of Yezzo’s file may not have been 

disclosed, as the trial court noted we have no true knowledge of what was sought 

and what was turned over in those cases thus those cases are of very little value. In 

addition, Keith cites to his own attempt to obtain public records regarding Yezzo in 

2009, which was initially denied, but the denial, as stated in emails included in the 

record, was based on Keith’s ongoing federal litigation. Nevertheless, Keith did 

eventually obtain the records he sought. Thus none of the cases cited by Keith, 

including his own 2009 attempt, establish that the trial court abused its discretion 

by determining that Keith did not establish by clear and convincing evidence that 

he was unavoidably prevented from obtaining Yezzo’s personnel file via a public 

records request. 

{¶33} On the basis of the record before us, we cannot find that the trial court 

abused its discretion. It was Keith’s burden to establish that he was unavoidably 

prevented from obtaining Yezzo’s personnel file and there is simply no indication 

other than pure speculation that he would have been unable to obtain Yezzo’s file 

through a public records request. As we have found that the trial court did not abuse 

its discretion based on the public records request issue, we need not discuss the trial 
Case No. 3-17-01 

-21- 

court’s separate finding regarding cross-examination. Therefore, Keith’s first 

assignment of error is overruled. 

Second Assignment of Error

{¶34} In Keith’s second assignment of error, he argues that the trial court 

erroneously rejected Keith’s claim of a Brady violation in this case. Brady v. 

Maryland, 373 U.S. 83 (1963). 

{¶35} The Supreme Court of the United States has held that there are three 

essential components of a Brady violation: 1) the State either willfully or 

inadvertently suppressed evidence, 2) the evidence was favorable to the accused, 

and 3) there was resulting prejudice. Strickler v. Greene, 527 U.S. 263 (1999). 

{¶36} On appeal, Keith claims that the State at least inadvertently suppressed 

Yezzo’s personnel file, that Yezzo’s file contained evidence favorable to Keith as it 

was impeachment evidence of a witness he characterized as “critical,” and he argues 

that absent Yezzo’s testimony the evidence linking Keith to the crime was minimal. 

{¶37} The State counters by stating that even assuming the evidence was 

favorable to Keith, and even assuming it had been inadvertently suppressed by the 

State, the information contained in Yezzo’s personnel file would not have changed 

the outcome of this case. The State maintains that the statements in Yezzo’s 

personnel file that Keith argues are damaging were statements made by coworkers 

and catalogued by administrators, making the statements hearsay within hearsay and 
Case No. 3-17-01 

-22- 

inadmissible at trial even if they were discovered. The State also contends that Keith 

could not introduce the statements anyway as they were improper character 

evidence pursuant to Evid.R. 608(B). 

{¶38} In our own review of the matter, even if we assumed, without finding, 

that the State inadvertently suppressed Yezzo’s personnel file, and even if we 

assumed that Yezzo’s personnel file contained evidence favorable to Keith, we 

absolutely could not find in the circumstances of this case that prejudice resulted 

here. Keith may claim that Yezzo was a critical witness tying him to the crime, but 

Yezzo provided testimony regarding a license plate number that was elicited 

elsewhere such as through the testimony of Patrolman Edward Wilhite of the 

Crestline Police Department and David Barnes of BCI, and she provided limited 

probative testimony regarding the tires at the scene. (Tr. At 424, 478-79). In fact, 

Yezzo actually provided one key piece of evidence for the defense, being that the 

footprints taken from the scene did not match later-acquired footwear from Keith. 

{¶39} A thorough review of the transcripts further reveals that the primary 

testimony linking Keith to the crime was from Warren and Smathers. Warren 

specifically identified Keith at trial as the man who shot him. As he woke up in the 

hospital after the shooting, Warren remembered the name “Kevin” as the person 

who shot him. He later gave the last name “Keith” when presented with possible 

last names of the shooter. Warren also recalled specific discussions on the night of 
Case No. 3-17-01 

-23- 

the murder that the man who came to the house was Kevin Keith and that he had 

been part of a drug bust recently, which was actually true of Keith, giving further 

credibility to Warren’s identification. Then, Warren also picked Keith out of a 

photo lineup. Warren was thus able to identify Keith through multiple means as the 

shooter. 

{¶40} Furthermore, Nancy Smathers identified Keith at trial as the man she 

saw getting stuck while trying to leave the scene. Smathers also testified that the 

dome light did not work on the car Keith was driving, and that the license plate light 

did not work. When the car Keith was using was seized, both of those things were 

found to be true, corroborating her story, and also adding credibility to Smathers’ 

eyewitness identification. Smathers’ testimony alone links Keith to the car, even if 

Yezzo had never testified at all in this case. Moreover, a bullet casing was found 

near the area where Keith picked his girlfriend up from work that matched the bullet 

casings from the crime scene. 

{¶41} Over the years in his numerous appeals and post-conviction petitions 

Keith has challenged many aspects of his case and the evidence against him, but one 

fact remains clear, the evidence against Keith was simply overwhelming.9

 Based 

on the record we cannot find that, even assuming Yezzo’s personnel file was 

 

9

 Both at his trial and following his convictions Keith has strongly pursued the defense that another man 

committed the killings, specifically Rodney Melton. That theory was presented at trial, along with multiple 

other individuals the defense contended were the potential killers. Rodney Melton, along with the others, 

actually testified for the jury to see and hear and the jury rejected the defense’s theories. 
Case No. 3-17-01 

-24- 

suppressed, and that it contained information favorable to Keith, there is no 

reasonable possibility that the information contained in Yezzo’s file would have 

made any difference in the outcome of this case.10

{¶42} For all of these reasons, Keith’s second assignment of error is 

overruled. 

Third Assignment of Error

{¶43} In Keith’s third assignment of error, Keith argues that the trial court 

erred by “striking” the filing of Keith’s successor post-conviction petition and his 

actual “Motion for New Trial.” 

{¶44} As we have found that the trial court did not abuse its discretion in 

denying Keith leave to file a new trial motion, any error in striking the actual motion 

itself would be moot, and we will not further address it. 

{¶45} As to Keith’s claims that the trial court improperly struck his successor 

post-conviction petition at the same time his “Motion for New Trial” was stricken, 

the record simply does not support this statement. The trial court’s October 31, 

2016, judgment entry only states that “the Motion for New Trial * * * cannot be 

deemed to have been filed until the Court grants the Defendant leave to file such 

 

10 Although Keith presented a case out of the Huron County Common Pleas Court that found otherwise, the 

facts of that case, from what little we have available, indicate that Yezzo’s testimony was absolutely critical 

in reopening a cold case and convicting the defendant. Those circumstances are not remotely present here. 

Further, one of the findings of Yezzo was clearly favorable to Keith in this matter, indicating perhaps a strong 

desire by defense counsel not to challenge Yezzo’s credentials. 
Case No. 3-17-01 

-25- 

motion.” The trial court made no mention of the successor petition for postconviction relief. If we assumed that the trial court’s entry “striking” the “Motion 

for New Trial” also “struck” the successor post-conviction petition and effectively 

dismissed it, then the proper time to appeal that dismissal would have been within 

30 days of the trial court’s October 31, 2016, judgment entry. 

{¶46} However, Keith did file a “Motion to Supplement Motion for Leave to 

File Delayed Motion for New Trial and Successor Petition for Post-Conviction 

Relief Under R.C. § 2953.23” after his “Motion for a New Trial” was “stricken.” 

When the trial court denied Keith’s “Motion for Leave” the trial court’s judgment 

entry stated only that Keith’s “Motion for Leave” was denied. The entry does not 

make any final determination with regard to the “Successor Petition for PostConviction Relief.” Thus there is no final judgment dismissing this issue before 

this Court to review, and any argument pertaining to it is not ripe.11 Accordingly, 

Keith’s third assignment of error is overruled. 

Conclusion

{¶47} For the foregoing reasons Keith’s assignments of error are overruled 

 

11 We note that while it appears the trial court has not officially ruled on Keith’s successor petition for postconviction relief, the arguments are the same as they are in the motion for a new trial, thus there is little merit 

to any further proceeding on the matter. 
Case No. 3-17-01 

-26- 

and the judgment of the Crawford County Common Pleas Court is affirmed. 

Judgment Affirmed 

PRESTON, P.J. and ZIMMERMAN, J., concur. 

/jlr