[Cite as State v. Taylor, 2011-Ohio-2563.]

 IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO 

STATE OF OHIO : 

Plaintiff-Appellee : C.A. CASE NO. 23916 

vs. : T.C. CASE NO. 97CR1303 

EDWARD D. TAYLOR : (Criminal Appeal from 

 Common Pleas Court) 

Defendant-Appellant : 

 . . . . . . . . . 

 O P I N I O N

 Rendered on the 27th day of May, 2011. 

 . . . . . . . . . 

Mathias H. Heck, Jr., Pros. Attorney; Carley J. Ingram, Asst. Pros. 

Attorney, Atty. Reg. No.0020084, P.O. Box 972, Dayton, OH 45422 

Attorneys for Plaintiff-Appellee 

Adrian King, Atty. Reg. No.0081882, 36 N. Detroit Street, Suite 

104, Xenia, OH 45385 

Attorney for Defendant-Appellant 

 . . . . . . . . . 

GRADY, P.J.: 

{¶ 1} Defendant, Edward Taylor, appeals from a final judgment 

denying his motion for a new trial based upon a claim of newly 

discovered evidence. 

{¶ 2} In February 1998, Defendant was found guilty following 

a jury trial of murder with a firearm specification. The trial 
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court sentenced Defendant to prison terms totaling eighteen years 

to life. We affirmed Defendant’s conviction and sentence on direct 

appeal. State v. Taylor (April 16, 1999), Montgomery App. No. 

17142. In our Opinion we set forth the facts of the case as follows: 

{¶ 3} “On May 9, 1997, Paul Metz was shot and killed in the 

rear bedroom of his apartment. Earlier that day, Metz had asked 

an ex-neighbor, Tyaunna Landers, to find buyers for some marijuana 

he was receiving that day. Landers brought defendant-appellant 

Edward Taylor and an unidentified man, referred to only as ‘Joe,’ 

to Metz's apartment to purchase the marijuana. When the three first 

arrived at the apartment, only Paul and his girlfriend, Jody Brown 

were present. The five smoked some marijuana and discussed the 

price of the marijuana. After approximately thirty to forty-five 

minutes, Taylor, Joe and Landers left. 

{¶ 4} “Later, Merle Lunsford arrived at the apartment. He 

brought six pounds of marijuana with him, as well as a .38 caliber 

Smith & Wesson handgun, which he kept in his jacket pocket. Lunsford 

testified that he brought the gun with him upon Metz's request 

because Metz did not trust the buyers. Lunsford gave Metz five 

pounds of the marijuana, which Metz took into the back bedroom 

of the apartment; the other pound of marijuana was intended for 

another party. Shortly after Lunsford arrived, Landers, Taylor 

and Joe returned. Metz and Taylor went to a back bedroom, leaving 
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Landers, Joe, Lunsford and Brown in the living room. 

{¶ 5} “Brown and Landers testified that they heard a gunshot 

in the rear bedroom, and then Joe began shooting at Lunsford. 

Lunsford was not sure whether he heard the shots in the bedroom 

before Joe started shooting. Lunsford testified that Joe shot him 

in the forehead, causing him to fall back over the couch. He 

testified that Joe then shot him several times in the leg. According 

to Lunsford, he then pulled out his gun and returned fire at Joe, 

getting off two shots. He testified that Taylor came out of the 

bedroom with a gun and aimed at Lunsford. He testified that Taylor 

pulled the trigger, but the gun did not fire. Lunsford further 

testified that he fired approximately three times at Taylor, 

wounding him in the head. Taylor fled the apartment through the 

bedroom window. 

{¶ 6} “At some point, Brown, Landers and Joe fled the 

apartment. Lunsford testified that before leaving the apartment 

he picked up Joe's .25 caliber silver automatic, and then left 

the apartment as well. He further testified that once outside the 

apartment, he saw Landers, Joe and Taylor getting into their car; 

at that point he attempted to shoot at them with Joe's gun, but 

the gun was empty. According to Lunsford, he then threw Joe's gun 

into a mud puddle, where it was later recovered. Lunsford then 

went to a fire department where he was treated and transported 
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to a hospital. Lunsford testified that he disposed of his .38 

caliber weapon and only turned it over to the authorities after 

he was assured of immunity for his testimony in the prosecution 

of Taylor. 

{¶ 7} “Landers testified that after she fled the apartment, 

she helped Taylor into the Plymouth Breeze automobile they had 

arrived in. They drove away and picked up Joe somewhere on the 

street. Landers testified that they drove to Taylor's apartment 

where she and Taylor transferred into Taylor's car. Taylor and 

Landers then drove to Cincinnati so that Taylor could be treated 

at a hospital. Taylor and Landers told hospital staff and the 

Cincinnati Police that he had been shot when they stopped to ask 

for directions in Cincinnati. Taylor was subsequently arrested 

by the Dayton police. 

{¶ 8} “Metz died as a result of four gunshot wounds. The 

coroner recovered only one bullet from his body; the bullet was 

from a .45 caliber weapon that was found in the bedroom with Metz. 

An atomic absorption test was performed on Metz's hands to test 

for gunpowder residue. Residue was found on his hands. An atomic 

absorption test performed on Lunsford's hands also indicated that 

he had gunpowder residue on his hands. No atomic absorption test 

was performed on Taylor's hands.” 

{¶ 9} On February 16, 2007, nine years after he was convicted 
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of murdering Paul Metz, Defendant filed a motion for a new trial 

based upon newly discovered evidence. Crim.R. 33(A)(6). In 

support of his motion, Defendant attached affidavits from Antonio 

Haney and Charles Martin, who, in identical language, claim that 

they overheard Merle Lunsford tell an unidentified person that 

he had falsely testified at Defendant’s trial that Defendant went 

to Metz’s apartment to rob Metz and Lunsford. Also, according 

to the affidavits, Lunsford stated that it was Metz, and not him, 

who shot Defendant. 

{¶ 10} On January 8, 2008, Defendant supplemented his motion 

for a new trial with his own affidavit, wherein he states he shot 

Metz in self-defense after Metz shot him in the face. On February 

14, 2008, the State filed its third memorandum contra Defendant’s 

motion for a new trial. The State argued that the materials 

submitted by Defendant fail to demonstrate that he was unavoidably 

prevented from discovering his new evidence, and in any event the 

evidence presented at trial was overwhelming and the affidavits 

submitted by Defendant were insufficient to demonstrate a 

reasonable probability of a different result should a new trial 

be ordered. On April 8, 2008, Defendant supplemented his new trial 

motion with an affidavit from Joseph Postone, who claims he was 

present and saw Metz shoot Defendant in the face before Defendant 

pulled his gun and fired back. 
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{¶ 11} On February 12, 2010, the trial court summarily denied 

Defendant’s motion for a new trial without a hearing. The court 

concluded that Defendant had not demonstrated by clear and 

convincing proof that he was unavoidably prevented from discovering 

the new evidence he now relies on. The court further concluded 

that the affidavits submitted by Defendant are not credible and 

are insufficient to justify a hearing. 

{¶ 12} Defendant timely appealed to this court from the trial 

court’s decision overruling his motion for a new trial 

ASSIGNMENT OF ERROR

“THE TRIAL COURT ERRED IN OVERRULING THE MOTION FOR LEAVE 

TO FILE MOTION FOR A NEW TRIAL WITHOUT HAVING A HEARING.” 

{¶ 13} The decision whether to grant a motion for a new trial 

lies within the sound discretion of the trial court and will not 

be disturbed on appeal absent an abuse of that discretion. State 

v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54. 

{¶ 14} “Abuse of discretion” has been defined as an attitude 

that is unreasonable, arbitrary or unconscionable. Huffman v. Hair 

Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 

N.E.2d 1248, 1252. It is to be expected that most instances of 

abuse of discretion will result in decisions that are simply 

unreasonable, rather than decisions that are unconscionable or 

arbitrary. 
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{¶ 15} A decision is unreasonable if there is no sound 

reasoning process that would support that decision. It is not enough 

that the reviewing court, were it deciding the issue de novo, would 

not have found that reasoning process to be persuasive, perhaps 

in view of countervailing reasoning processes that would support 

a contrary result. AAAA Enterprises, Inc. v. River Place Community 

Redevelopment (1990), 50 Ohio St.3d 157, 161, 553 N.E.2d 597. 

{¶ 16} Pursuant to Crim.R. 33(A)(6), a new trial may be granted 

when new evidence material to the defense is discovered that the 

defendant could not with reasonable diligence have discovered and 

produced at trial. To prevail on a motion for new trial based upon 

newly discovered evidence, Defendant must show that the new 

evidence: (1) discloses a strong probability that the result of 

the trial would be different if a new trial were granted; (2) has 

been discovered since the trial; (3) is such as could not have 

been discovered before the trial through the exercise of due 

diligence; (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), 148 Ohio 

St. 505; State v. DeVaughns, Montgomery App. No. 23720, 

2011-Ohio-125. 

{¶ 17} Motions for a new trial based upon newly discovered 

evidence must be filed within one hundred twenty days after the 
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verdict was rendered, unless it appears by clear and convincing 

proof that the movant was unavoidably prevented from discovering 

the new evidence, in which case the motion for new trial must be 

filed within seven days after an order of the court finding that 

Defendant was unavoidably prevented from discovering the new 

evidence within the one hundred twenty day period. Crim.R. 33(B). 

{¶ 18} Defendant failed to obtain leave of court to pursue 

an untimely motion for a new trial, and further failed to 

demonstrate by clear and convincing proof that he was unavoidably 

prevented from discovering the new evidence on which he relies. 

 Further, a review of Defendant’s motion for a new trial reveals 

that it lacks merit, because the new evidence is not material to 

the defense. Material evidence is evidence which goes to the 

substantial matters in dispute or has a legitimate and effective 

influence or bearing on the decision in the case. Black’s Law 

Dictionary (4th Ed., 1968), at p. 1128. 

{¶ 19} Defendant’s motion for a new trial is predicated on 

the proposition that Defendant had agreed to buy marijuana from 

Metz, and that Metz pulled a gun on Defendant in order to steal 

his money and shot Defendant in the head, after which Defendant 

shot Metz in self-defense. However, Defendant never claimed at 

trial that he acted in self-defense in shooting Metz. To the 

contrary, Defendant claimed that he never shot anyone. The “new 
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evidence,” which consists of affidavit statements by Defendant 

and three others, if true, directly contradicts and defeats the 

defense Defendant pursued at trial. The new evidence therefore 

fails to satisfy the materiality requirement of Crim.R. 33(A)(6). 

{¶ 20} Additionally, we note that the affidavits of Haney and 

Martin, which were offered in support of Defendant’s theory that 

he shot Metz in self-defense, inaccurately report the facts. Both 

affidavits claim that Lunsford admitted falsely testifying that 

Defendant Taylor came to the apartment to rob Lunsford and Metz. 

 Howeer, Lunsford never testified at trial that Defendant Taylor 

came to rob them. No abuse of discretion on the part of the trial 

court in denying Defendant’s motion for a new trial has been 

demonstrated. 

{¶ 21} With respect to Defendant’s claim that he was 

unavoidably prevented from timely discovering this new evidence, 

we note that the guilty verdicts in this case were returned by 

the jury in February 1998. This motion for a new trial was filed 

on February 16, 2007, nine years after the guilty verdicts. 

Obviously Defendant’s motion for a new trial is untimely, and he 

was therefore required to demonstrate by clear and convincing proof 

that he was unavoidably prevented from discovering the new evidence 

within one hundred and twenty days after the guilty verdicts were 

rendered. 
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{¶ 22} In concluding that Defendant failed to demonstrate that 

he was unavoidably prevented from discovering the new evidence, 

the trial court found that the affidavits submitted by Defendant 

were not credible. State v. Calhoun (1999), 86 Ohio St.3d 279. 

 The court pointed out that Defendant became aware of Haney’s 

statements that Lunsford had changed his testimony more than one 

year prior to filing his motion for a new trial. Martin’s 

affidavit, which employs the exact same language as Haney’s, was 

obtained ten months after Haney’s affidavit. No showing has been 

made as to why it took ten months to obtain Martin’s affidavit. 

{¶ 23} Furthermore, the court noted that the affidavits fail 

to specify when and where the conversation with Lunsford took place, 

how affiants know Lunsford, affiants’ relationship with Defendant 

and when and how Defendant became aware of the conversations between 

affiants and Lunsford. The trial court noted that several of the 

Calhoun factors affecting credibility apply in this case. For 

instance, this trial court presided over the trial, the wording 

of Haney’s and Martin’s affidavits are identical, and the new 

evidence set forth in the affidavits relies completely upon 

hearsay. 

{¶ 24} We find no abuse of discretion in the trial court’s 

denial of Defendant’s motion for a new trial on the court’s finding 

that Defendant failed to demonstrate by clear and convincing proof 
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that he was unavoidably prevented from discovering the new 

evidence, and on the court’s further finding that the affidavits 

Defendant submitted from Haney and Martin were not credible. State 

v. Lanier, Clark App. No. 2009CA84, 2010-Ohio-2921, at ¶16. 

{¶ 25} Defendant’s assignment of error is overruled. The 

judgment of the trial court will be affirmed. 

DONOVAN, J. And HALL, J., concur. 

Copies mailed to: 

Carley J. Ingram, Esq. 

Adrian King, Esq. 

Hon. Barbara P. Gorman