[Cite as State v. Anderson, 2014-Ohio-1849.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 13AP-831 

v. : (C.P.C. No. 07CR-06-4563)

Kim L. Anderson, : (ACCELERATED CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on May 1, 2014 

 

Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for 

appellee. 

Kim L. Anderson, pro se. 

 

APPEAL from the Franklin County Court of Common Pleas 

SADLER, P.J. 

{¶ 1} Defendant-appellant, Kim L. Anderson, appeals from a judgment of the 

Franklin County Court of Common Pleas denying both his motion for leave to file a 

motion for new trial and his motion for new trial. For the reasons that follow, we affirm 

the judgment of the trial court. 

I. BACKGROUND 

{¶ 2} In 2007, appellant was indicted for multiple offenses pertaining to 

allegations of mortgage fraud. During a jury trial, evidence established appellant 

participated in a mortgage fraud scheme that involved six properties and defrauded 

mortgage lenders of over $1 million. State v. Anderson, 10th Dist. No. 08AP-1071, 2009-

Ohio-6566, ¶ 3 ("Anderson I"). Following trial, appellant was convicted of 13 of the 21 
No. 13AP-831 2 

indicted offenses and was sentenced to an aggregate prison term of 15 years. Id. at ¶ 9. 

Appellant's conviction and sentence were affirmed by this court in Anderson I. Id.

{¶ 3} In the years following the disposition of his direct appeal, the record reveals 

appellant has filed a number of motions, including a prior motion for a new trial and 

various motions seeking postconviction relief. The motion currently before this court is 

appellant's March 13, 2013 motion for leave to file a motion for new trial, pursuant to 

Crim.R. 33, and motion for new trial pursuant to Crim.R. 33(A)(6). Appellant's motion 

for leave to file was based on "truly newly discovered evidence recently received in a Civil 

Case" that he was "unavoidably prevented from discovering." (Motion for leave, 1.) The 

newly discovered evidence consists of a multitude of evidence presented in appellant's 

civil litigation.1 Though asserting all of the evidence was relevant, appellant primarily 

relied on the affidavit of Frank Farkas that was submitted in the "Discovery Process 

within that Case." (Motion for new trial, 1.) According to appellant, the affidavit 

demonstrates that Farkas lied at appellant's criminal trial. Appellant's motion indicates 

that, prior to October 5, 2012, he "had no knowledge that this information even existed." 

(Motion for leave, 3.) 

{¶ 4} The trial court found appellant failed to present clear and convincing 

evidence that he was unavoidably prevented from timely filing the motion for leave and 

failed to present any evidence presenting a strong probability that the result of the trial 

would be changed if a new trial was ordered. Accordingly, the trial court denied both the 

motion for leave and the motion for new trial. 

II. ASSIGNMENTS OF ERROR 

{¶ 5} This appeal followed, and appellant brings three assignments of error for 

our review: 

[I.] The Trial Court erred as a matter of law and abused its 

discretion by Denying Defendant's Motion for leave to file a 

Delayed Motion for New Trial and Defendant's Second 

Motion for New Trial based on Newly Discovered evidence; 

 

1 In his March 13, 2013 motion for new trial, appellant states that, in addition to trying to prove his 

innocence, he has undertaken civil litigation seeking damages against "the persons and parties he believes 

Negligently and Fraudulently caused him harm in several of the Real Estate Transactions," specifically, 

"Preferred Title Agency, Inc., Frank Farkas, Rebecca Barley, and Stewart Title Company, Inc." (Motion for 

new trial, 1.) 
No. 13AP-831 3 

that was withheld from him by the prosecutors in his criminal 

trial, and only discovered after filing a civil case. Moreover, 

while the trial court does not dispute that the evidence was 

withheld by the State; the trial court abused its discretion by, 

in essence, finding that Mr. Anderson was unavoidably 

prevented from discovering the new evidence, but waited too 

long to file his Motion. 

[II.] Defendant's trial counsel is ineffective when he fails to 

investigate or pursue discovery; specifically when he was 

involved in many of the underlying transactions, and that two 

(2) properties were sold before trial, and this evidence along 

with other exculpatory evidence was withheld by the State; 

even after Rule 16 Discovery requests in clear violation of said 

discovery rules, counsel's duties to Defendant; and Brady V. 

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

[III.] The Trial Court erred as a matter of law by not holding 

an Evidentiary Hearing on Defendant's Motion for New Trial; 

especially in light of evidence showing prosecutorial 

misconduct, witness perjury, and State advancing knowing 

use of false testimony along with new evidence indicating 

conviction not supported by credible evidence; making his 

conviction and sentence void and contrary to law. 

III. DISCUSSION 

A. First and Third Assignments of Error 

{¶ 6} Because they are interrelated, appellant's first and third assignments of 

error will be addressed as one. Together these assigned errors challenge the trial court's 

decision denying appellant's motion for leave to file a motion for new trial and to do so 

without a hearing. 

{¶ 7} In considering a trial court's denial of a motion for leave to file a motion for 

new trial, this court employs an abuse of discretion standard. State v. Anderson, 10th 

Dist. No. 12AP-133, 2012-Ohio-4733, ¶ 9 ("Anderson II"). An abuse of discretion exists 

when the trial court's attitude in reaching its judgment was unreasonable, arbitrary or 

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

33(A)(6) provides in part that a new trial may be granted on motion by the defendant 

"[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(B) 
No. 13AP-831 4 

"imposes time limits for the filing of a motion for a new trial." Anderson II at ¶ 11. 

Specifically, Crim.R. 33(B) states: 

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 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. 

{¶ 8} This court has previously noted that " 'Crim.R. 33 contemplates a two-step 

procedure when a defendant seeks to file a motion for new trial more than 120 days after 

the conclusion of the trial.' " State v. Stepherson, 10th Dist. No. 13AP-282, 2013-Ohio5396, ¶ 15, quoting State v. Bethel, 10th Dist. No. 09AP-924, 2010-Ohio-3837, ¶ 13. 

Under 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.' " Id., quoting Bethel at ¶ 13. A defendant is " 'unavoidably prevented' " from 

discovering the new evidence within the 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.' " Id., quoting Bethel at 

¶ 13, citing State v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-2244. Under the second 

step, " 'if the defendant does establish by clear and convincing evidence that the delay in 
No. 13AP-831 5 

finding the new evidence was unavoidable, the defendant must file the motion for new 

trial within seven days from that finding.' " Id., quoting Bethel at ¶ 13. 

{¶ 9} The Supreme Court of Ohio, in State v. Petro, 148 Ohio St. 505 (1947), 

syllabus, set forth the following six-part test for determining whether a motion for new 

trial on the basis of newly discovered evidence should be granted: 

To warrant the granting of a motion for a new trial in a 

criminal case, based 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 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. 

{¶ 10} In considering appellant's motion for leave to file a motion for new trial, the 

trial court found appellant failed to demonstrate that he was unavoidably prevented from 

filing the motion in a timely manner. Specifically, the trial court held that appellant failed 

to explain the 159-day delay in filing his motion for leave after obtaining the information 

from his civil case. The trial court also noted that "[w]ith regard to Mr. Farkas, 

[appellant] has previously filed motions concerning allegations as to inconsistencies and 

perjury regarding his testimony." (Decision, 6.) After examining Mr. Farkas's affidavit, 

the trial court stated, "[w]ith all due respect to [appellant] herein, this Court cannot see 

any material differences between what [appellant] claims that Mr. Farkas testified to in 

his trial, and what is contained in his affidavit." (Decision, 7.) In conclusion, the trial 

court found appellant failed to present clear and convincing evidence that he was 

unavoidably prevented from timely filing the motion for leave and failed to present any 

evidence presenting a strong probability that the result of the trial would be changed if a 

new trial was ordered. 

{¶ 11} Appellant first contends that in denying his motion for leave, the trial court 

should not have considered the 159-day delay between filing the motion for leave and the 

receipt of the information. According to appellant, this reasoning is "fatally flawed." 

(Appellant's brief, 5.) We reject appellant's contention. 
No. 13AP-831 6 

{¶ 12} As this court stated in Anderson II, which reviewed the trial court's denial of 

appellant's prior motion for new trial based on newly discovered evidence: 

Further, a " 'trial court may require a defendant to file his 

motion for leave to file within a reasonable time after he 

discovers the evidence.' " [State v. Golden, 10th Dist. No. 

09AP-1004, 2010-Ohio-4438, ¶ 18], quoting State v. Berry, 

10th Dist. No. 06AP-803, 2007-Ohio-2244, ¶ 37. As observed 

by the Seventh District Court of Appeals: 

While Crim.R. 33(B) does not provide a specific time limit in 

which defendants must file a motion for leave to file a delayed 

motion for new trial, many courts have required defendants to 

file such a motion within a reasonable time after discovering 

the evidence. State v. Griffith, 11th Dist. No. 2005-T-0038, 

2006-Ohio-2935, ¶ 15. See also State v. Berry, 10th Dist. No. 

06AP-803, 2007-Ohio-2244, ¶ 37; State v. Willis, 6th Dist. 

No. L-06-1244, 2007-Ohio-3959, ¶ 20; State v. Newell, 8th 

Dist. No. 84525, 2004-Ohio-6917, ¶ 16; State v. Stansberry, 

8th Dist. No. 71004 (Oct. 9, 1997). 

State v. Wilson, 7th Dist. No. 11 MA 92, 2012-Ohio-1505, ¶ 57 

(also adopting the rule). 

Id. at ¶ 17. 

{¶ 13} In Anderson II, appellant acknowledged that 134 days passed from his 

receipt of the alleged newly discovered evidence on August 20, 2010 and the filing of his 

motion for new trial on January 4, 2011. This court rejected appellant's contention that 

the timing of the filing of his motion was reasonable in light of his current incarceration 

and reasoned, "In view of the fact that Crim.R. 33(B) establishes an initial 120-day period 

to file a motion for a new trial based on newly discovered evidence, and under the 

particular facts of this case, the trial court did not abuse its discretion in concluding that 

appellant had not filed his motion within a reasonable time after discovery of the 

evidence." Id. at ¶ 18. 

{¶ 14} Despite the ruling in Anderson II, appellant now asks this court to find the 

159-day delay reasonable. The trial court rejected appellant's contention that the filing 

was completed in a reasonable amount of time after finding that appellant failed to submit 

any good reason for the delay. On appeal, other than stating the trial court was wrong to 

have considered the 159-day delay, appellant provides no reasoning as to why the delay 
No. 13AP-831 7 

should be considered reasonable. Given Anderson II and the other authorities cited 

supra, we cannot conclude that the trial court abused its discretion in considering the 159-

day delay. 

{¶ 15} Appellant also argues the trial court erred in denying his motion for leave to 

file a motion for new trial because he presented newly discovered evidence sufficient to 

warrant a hearing. The decision whether to grant or hold an evidentiary hearing on a 

defendant's request for leave to file a delayed motion for new trial falls within the sound 

discretion of the trial court and will not be disturbed on appeal absent an abuse of that 

discretion. State v. Caulley, 10th Dist. No. 12AP-100, 2012-Ohio-2649, ¶ 15, citing State 

v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, ¶ 19 (2d Dist.); State v. Carson, 

10th Dist. No. 07AP-492, 2007-Ohio-6382, ¶ 22. 

{¶ 16} Here, the trial court concluded appellant's motion for leave to file was not 

filed within a reasonable time frame and that, after review of the Farkas affidavit, 

appellant demonstrated no "material differences between what [appellant] claims that 

Mr. Farkas testified to in his trial, and what is contained in his affidavit." (Decision, 7.) 

Given the trial court's findings that the motion for leave was not filed within a reasonable 

time frame and that appellant failed to present clear and convincing evidence establishing 

a strong probability that the result of the trial would be changed if a new trial was ordered, 

we discern no abuse of discretion in the trial court's decision to deny appellant's motion 

for leave to file without a hearing. 

{¶ 17} To the extent appellant's arguments can be construed as challenging the 

denial of the motion for new trial without a hearing, it is unnecessary to address such 

arguments in this regard because appellant did not demonstrate that he was entitled to 

leave to file such a motion. Berry at ¶ 34. 

{¶ 18} Accordingly, appellant's first and third assignments of error are overruled. 

B. Second Assignment of Error 

{¶ 19} In his second assignment of error, appellant contends his trial counsel was 

ineffective during "all stages of his criminal proceedings." (Appellant's brief, 7.) Not only 

does this allegation fail to relate to the alleged newly discovered evidence, but, also 

appellant did not raise this claim in the motion for leave to file a motion for new trial or in 

his motion for new trial. An appellate court will not entertain issues that were not raised 
No. 13AP-831 8 

in the trial court first. State v. Brown, 6th Dist. No. L-98-1130 (Aug. 21, 1998) (issues not 

raised in motion for new trial pursuant to Crim.R. 33 cannot be raised for the first time on 

appeal); State v. Williams, 51 Ohio St.2d 112 (1977) (it is axiomatic that arguments which 

are not raised in the trial court are waived for purposes of appeal); Owners Mgt. Co. v. 

Moore, 111 Ohio App.3d 820, 825 (6th Dist.1996). 

{¶ 20} Accordingly, appellant's second assignment of error is overruled. 

IV. CONCLUSION 

{¶ 21} Having overruled appellant's three asserted assignments of error, the 

judgment of the Franklin County Court of Common Pleas is hereby affirmed. 

Judgment affirmed.

BROWN and DORRIAN, JJ., concur. 

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