[Cite as State v. Dunkle, 2021-Ohio-1035.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 19AP-820 

v. : (C.P.C. No. 07CR-491)

Charles E. Dunkle, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on March 30, 2021 

 

On brief: G. Gary Tyack, Prosecuting Attorney, and Seth L. 

Gilbert, for appellee. Argued: Seth L. Gilbert. 

On brief: The Law Office of Eric J. Allen, Ltd., and Eric J. 

Allen, for appellant. Argued: Eric J. Allen. 

 

APPEAL from the Franklin County Court of Common Pleas 

KLATT, J. 

{¶ 1} Defendant-appellant, Charles E. Dunkle, appeals a judgment of the Franklin 

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

new trial. Because the trial court did not abuse its discretion, we affirm that judgment. 

{¶ 2} On January 18, 2007, appellant and a co-defendant, Ronnie McWhorter, 

were indicted for aggravated murder in violation of R.C. 2903.01. The indictment arose 

from the beating death of Howard Hough on January 10, 2007. 
No. 19AP-820 2 

{¶ 3} In summary,1 the testimony presented at appellant's trial established that in 

the early evening of January 10, 2017, McWhorter and Paul Fugate beat Hough severely, 

left him in an alley, and then went to McWhorter's residence. McWhorter's sister, Michelle, 

a neighbor, Heather Moore, and appellant were at the house when the men returned. 

McWhorter told the group about Hough's beating. Heather and Michelle testified that they 

heard appellant urge McWhorter to return to the scene to finish Hough off in order to keep 

him from reporting the incident to the police. Thereafter, appellant and McWhorter left 

the residence for 20 to 30 minutes. When they returned, appellant told Heather and 

Michelle that he had picked up a board and repeatedly beat Hough in the head with it. 

Medical testimony established that Hough died from blunt trauma to the head and that his 

injuries were consistent with being struck by a board. Following his arrest, appellant 

boasted to a cell mate about beating an individual in the back of the head with a board. 

{¶ 4} A jury returned a verdict finding appellant guilty as charged in the 

indictment. The trial court sentenced appellant to 30 years to life imprisonment. This court 

affirmed appellant's conviction and sentence. State v. Dunkle, 10th Dist. No. 08AP-370, 

2009-Ohio-1549. Appellant subsequently filed a petition for post-conviction relief 

pursuant to R.C. 2953.21. This court affirmed the trial court's dismissal of the petition. 

State v. Dunkle, 10th Dist. No. 13AP-687, 2014-Ohio-1028. 

{¶ 5} On August 19, 2019, appellant filed two motions in the trial court: a motion 

for leave to file a delayed motion for new trial and a motion for new trial. Appellant's 

motions were premised on alleged newly discovered evidence of his innocence, i.e., 

McWhorter's recantation of his trial testimony implicating appellant in Hough's murder. 

In his motion for leave, appellant maintained that McWhorter wrote to him and indicated 

that he "wanted to tell the truth" in order to "calm his conscience." (Aug. 19, 2019 Mot. for 

an Order Granting Leave to File a Mot. for New Trial, at 4.) Thereafter, appellant's counsel 

obtained an affidavit "as soon as he could to secure this information." Id. at 5. Appellant 

asserted that McWhorter's affidavit "exonerates the Defendant." Id. at 4. Appellant argued 

that McWhorter's recantation of his trial testimony constituted newly discovered evidence 

that he was unavoidably prevented from discovering within the 120-day period for filing a 

 

1 The summary is gleaned from the facts set forth in State v. Dunkle, 10th Dist. No. 08AP-370, 2009-Ohio1549, and State v. Dunkle, 10th Dist. No. 13AP-687, 2014-Ohio-1028. 
No. 19AP-820 3 

motion for new trial because "[i]t was not feasible for the Defendant to know that 

[McWhorter] would eventually tell the truth." Id. 

{¶ 6} In an undated affidavit attached to appellant's motion for leave, McWhorter 

stated that Hough's mistreatment of his mother caused friction between him and Hough. 

(McWhorter Aff. at ¶ 1.) On January 10, 2017, McWhorter was at home with his wife, his 

sister, and appellant. Id. at ¶ 2. Fugate told McWhorter he had just seen Hough in a nearby 

alley. Id. at ¶ 3. McWhorter had been drinking and was very angry with Hough. He then 

left the house with Fugate, found Hough in the alley, beat him, and left him there. Id. at 

¶ 3, 6. Later, McWhorter's sister and some other women checked on Hough; he was sitting 

in the alley and appeared to be alive and well. Id. at ¶ 4. The women returned to the house 

and reported this information to McWhorter. Id. 

{¶ 7} McWhorter further attested that he "does not remember Charles Dunkle 

imploring him to return to the scene of the crime" and that "[n]one of the testimony that 

accuses him of doing so is accurate." Id. at ¶ 5. He further averred that appellant remained 

at the house and "did not assist nor did he plan the attack on * * * Hough." Id. McWhorter 

attested that he returned to the scene and "finished * * * Hough himself," and that appellant 

"did not assist, encourage or aid him in any way in the killing." Id. at ¶ 6. According to 

McWhorter, he "killed * * * Hough because of how he treated his mother and there was no 

other reason." Id. He further stated that "[t]here was also no other assailants but him." Id. 

{¶ 8} McWhorter further averred that he did not tell the police, his attorney, or the 

judge that he was solely responsible for Hough's death. Id. at ¶ 7. He did not tell the police 

because he "wanted to avoid trouble." Id. He attested that "[t]his is the first he accepts 

responsibility for what he did to * * * Hough." Id. According to McWhorter, he "has been 

incarcerated for over ten years and wishes to set the record straight regarding Charles 

Dunkle" and "it is the right thing to do." Id. at ¶ 7, 8. He further stated that "Charles Dunkle 

has not provided him with any money or assistance to [him] or his family" and "has not 

threatened him or his family." Id. at ¶ 8. McWhorter asserted that he "is telling the truth 

and asks the court to give Charles Dunkle a new trial." Id. 

{¶ 9} Appellant also attached to his motion for leave his own affidavit dated "This 

__ day of June 2019." Therein, appellant averred that "Mr. McWhorter testified against 

him at his trial." (Appellant Aff. at ¶ 2.) He further stated that McWhorter did not contact 
No. 19AP-820 4 

him "to state the truth" until "late 2018." Id. at ¶ 3, 4. Appellant also attested that 

McWhorter provided an affidavit containing information "exonerating him" and that said 

information "was not available at trial, within the one hundred and twenty days provided 

by rule, or until 2018." Id. at ¶ 5. 

{¶ 10} On November 5, 2019, the trial court filed a decision and entry denying 

appellant's motion for leave to file a delayed motion for new trial. Specifically, the court 

found that appellant's motion for leave was untimely, as it was not filed within 120 days of 

the verdict as required by Crim.R. 33(B). The court further found that McWhorter's 

affidavit did not constitute newly discovered evidence within the meaning of Crim.R. 33. 

The court also found that appellant had failed to establish by clear and convincing evidence 

that he was unavoidably prevented from discovering the evidence within the initial 120-day 

period for filing a motion for new trial. Id. As the trial court's denial of appellant's motion 

for leave essentially rendered moot his motion for new trial, the trial court did not rule on 

it. 

{¶ 11} In a timely appeal, appellant advances a single assignment of error for our 

review: 

The trial court abused its discretion in denying appellant's 

motion for leave to file a motion for new trial. 

{¶ 12} Crim.R. 33 governs motions for new trial in criminal proceedings. Crim.R. 

33(A) provides the grounds upon which a defendant may receive a new trial. As relevant 

here, Crim.R. 33(A)(6) provides that a defendant may be granted a new trial "[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." A defendant must file a 

motion based upon Crim.R. 33(A)(6) within 120 days after the date on which a verdict or 

decision was rendered against him. Crim.R. 33(B). However, "[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. 

{¶ 13} Accordingly, where a defendant misses the 120-day filing deadline, Crim.R. 

33 mandates a two-step procedure. State v. Cashin, 10th Dist. No. 17AP-338, 2017-Ohio-
No. 19AP-820 5 

9289, ¶ 15, citing State v. Graggs, 10th Dist. No. 16AP-611, 2017-Ohio-4454, ¶ 13. The 

defendant must first seek leave from the trial court to file a delayed motion for new trial. 

The motion for leave must be supported by clear and convincing proof that the defendant 

was unavoidably prevented from learning of the newly discovered evidence within the 120-

day period for filing a Crim.R. 33(A)(6) motion. Id., citing Graggs at ¶ 13. Clear and 

convincing evidence is " 'that measure or degree of 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.' " State v. 

Schiebel, 55 Ohio St.3d 71, 74 (1990), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), 

paragraph three of the syllabus. 

{¶ 14} A defendant is unavoidably prevented from filing a timely motion for new 

trial if he " 'had no knowledge of the existence of the ground supporting the motion for new 

trial and could not have learned of the existence of that ground within the time prescribed 

for filing the motion for new trial in the exercise of reasonable diligence.' " Cashin at ¶ 16, 

quoting State v. Walden, 19 Ohio App.3d 141, 146 (10th Dist.1984). Clear and convincing 

proof that a defendant was unavoidably prevented from filing a timely motion for new trial 

" '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. No. 05AP-229, 2005-Ohio-6374, ¶ 9, quoting State v. Mathis, 134 Ohio 

App.3d 77, 79 (1999). 

{¶ 15} If the trial court grants the motion for leave, the defendant must then file his 

actual motion for a new trial. Cashin at ¶ 16, citing State v. Noor, 10th Dist. No. 16AP-340, 

2016-Ohio-7756, ¶ 11. In that motion, the defendant must demonstrate that the new 

evidence: " ' "(1) discloses a strong probability to 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." ' " Id. at ¶ 15, quoting State v. Hawkins, 66 Ohio St.3d 339, 350 (1993), 

quoting State v. Petro, 148 Ohio St. 505 (1947), syllabus. 
No. 19AP-820 6 

{¶ 16} The grant or denial of a motion for leave to file a delayed motion for new trial 

is within the sound discretion of the trial court and will not be reversed absent an abuse of 

discretion. Lee at ¶ 10, citing State v. Carr, 10th Dist. No. 02AP-1240, 2003-Ohio-2947. 

An abuse of discretion means that the trial court acted in an " 'unreasonable, arbitrary, or 

unconscionable' " manner or employed " 'a view or action that no conscientious judge could 

honestly have taken.' " State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, ¶ 67, quoting 

State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, ¶ 23. "Abuse-of-discretion review is 

deferential and does not permit an appellate court to simply substitute its judgment for that 

of the trial court." State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, ¶ 34. 

{¶ 17} Preliminarily, we note that the record refutes the assertions in appellant's 

motion for leave and his affidavit that McWhorter testified at appellant's trial. The record 

reveals that neither the state nor appellant subpoenaed McWhorter. Further, the transcript 

of appellant's trial reveals that McWhorter did not testify. To be sure, a detective testified 

at McWhorter's trial that in an interview conducted after Hough's murder, McWhorter 

implicated appellant in the crime. State v. McWhorter, 10th Dist. No. 08AP-263, 2008-

Ohio-6225, ¶ 11. However, the state did not present these statements at appellant's trial. 

Accordingly, McWhorter's affidavit does not constitute a "recantation" of his trial 

testimony. 

{¶ 18} Recantation or not, appellant filed his motion for leave to file a delayed 

motion for new trial more than 11 years after his guilty verdict. As such, appellant was 

required to show by clear and convincing proof that he was unavoidably prevented from 

discovering the evidence relied upon to support the motion for new trial within 120 days of 

the verdict. In his motion for leave, appellant claimed that McWhorter wrote to him and 

indicated that he "wanted to tell the truth" in order to "calm his conscience." McWhorter's 

affidavit averred that he alone killed Hough and now accepts sole responsibility for the 

murder. 

{¶ 19} In State v. Ambartsoumov, 10th Dist. No. 12AP-878, 2013-Ohio-3011, this 

court held that a defendant is not unavoidably prevented from discovering an exculpatory 

witness when the defense knew or should have known of the witness prior to the trial. Id. 

at ¶ 21-30. We noted that "[o]ther Ohio courts have similarly held that a defendant was not 

'unavoidably prevented from discovering the evidence' where the witnesses were known to 
No. 19AP-820 7 

the defense prior to trial." Id. at ¶ 22, citing State v. Saban, 8th Dist. No. 73647 (Mar. 18, 

1999); State v. Nicholson, 8th Dist. No. 70916 (May 1, 1997). We also cited federal case law 

establishing that " 'if a defendant is aware of the evidence at the time of trial, then it is not 

newly discovered evidence under Rule. 33.' " Id. at ¶ 23, quoting United States v. Sims, 72 

Fed.Appx. 249, 252 (6th Cir.2003). We specifically quoted the following passages from 

Sims: " 'where a witness who has indicated to the defendant * * * an unwillingness to testify 

truthfully at trial * * * but later supplies an affidavit exonerating the defendant of the 

offense, the affidavit is merely newly available evidence, but it not newly discovered 

evidence.' (Emphasis sic.) * * * Thus, 'a post-trial affidavit exonerating the defendant that 

was provided by a witness who could have been called at trial, but was not, can never be 

considered newly discovered evidence under Rule 33.' " Id. at ¶ 23, quoting Sims, citing 

United States v. Turns, 198 F.3d 584 (6th Cir.2000). 

{¶ 20} Here, appellant clearly knew about McWhorter prior to trial and could have 

called him to testify. Appellant's suggestion that McWhorter's statement to the police 

implicating him in Hough's murder justifies his failure to call him as a witness at trial is 

misplaced. Appellant could still have subpoenaed McWhorter to testify and tested the 

credibility of any statements he may have made during his testimony. In State v. Davis,

10th Dist. No. 03AP-1200, 2004-Ohio-6065, Davis filed an untimely motion for new trial, 

relying on the affidavit of Dennis White, who confessed to the crimes after Davis was 

convicted. Davis did not call White as a witness at trial because White told a defense 

investigator that Davis had committed the crimes. The trial court denied Davis's motion 

on grounds that he had failed to prove by clear and convincing evidence that he was 

unavoidably prevented from discovering the evidence within 120 days of the verdict. The 

trial court specifically noted that had Davis exercised due diligence, he could have offered 

evidence of White's guilt at trial. This court affirmed, holding that White's confession did 

not constitute newly discovered evidence entitling Davis to relief under Crim.R. 33: 

Appellant failed to prove that White's confession, submitted 11 

years after appellant's conviction, could not, in the exercise of 

due diligence, have been discovered prior to trial. Although 

White was available to testify, appellant never called him to the 

witness stand to test his credibility. What White would or 

would not have said on the witness stand was certainly relevant 

to appellant's decision on whether to call White to the stand. 

But this is not itself "newly discovered" evidence under Crim.R. 
No. 19AP-820 8 

33. Appellant had the option of subpoenaing White and, if 

necessary, discrediting any perjured testimony. White's 

affidavit, presented by appellant, implicating White as the 

principal in the robbery and assault does not require the trial 

court to grant a motion for new trial filed over a decade after 

the crimes. Petro, supra. Furthermore, based on the evidence 

presented at trial, the jury found appellant guilty beyond a 

reasonable doubt. 

Id. at ¶ 13 (internal citations omitted). 

{¶ 21} Just as Davis could have discovered White's post-trial statement in the 

exercise of due diligence, appellant could have discovered McWhorter's statement that he 

alone killed Hough. Appellant's contention that he could not have discovered McWhorter's 

confession during or immediately after trial because McWhorter had only recently decided 

that he wished to "set the record straight" is of no avail. McWhorter, having already been 

tried and sentenced, was in state custody at the time of appellant's trial. Accordingly, 

appellant knew McWhorter's whereabouts and that he was available to testify. That 

McWhorter had previously implicated appellant in the murder does not excuse appellant 

from subpoenaing him and, if necessary, discrediting any perjured testimony McWhorter 

may have offered. 

{¶ 22} We further note that the jury presumably found appellant guilty, at least in 

part, on the testimony provided by Heather and Michelle, who averred that appellant urged 

McWhorter to return to the scene and finish Hough off and then told them upon his return 

to the house that he had repeatedly beat Hough in the head with a board. As noted above, 

in the affidavit attached to appellant's motion for leave, McWhorter averred that "none of 

the testimony that accuses him of doing so is accurate." (McWhorter Aff. at ¶ 5.) While 

McWhorter's affidavit purports to discredit the testimony provided by Heather and 

Michelle, appellant did not attach to his motion for leave an affidavit from either Heather 

or Michelle recanting their trial testimony. Accordingly, while McWhorter now takes full 

responsibility for Hough's murder, appellant does not explain how McWhorter's confession 

can be reconciled with the trial testimony of Heather and Michelle implicating him in the 

crime. 

{¶ 23} Moreover, even if we were to accept appellant's premise that he was 

unavoidably prevented from discovering McWhorter's confession because he had no reason 
No. 19AP-820 9 

to suspect that McWhorter would ever "tell the truth" about Hough's murder, appellant has 

failed to demonstrate that he filed his motion for leave within a reasonable time after 

learning of McWhorter's confession and procuring McWhorter's affidavit memorializing it. 

{¶ 24} 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. Berry, 10th Dist. No. 

06AP-803, 2007-Ohio-2244, ¶ 37, quoting State v. Griffith, 11th Dist. No. 2005-T-0038, 

2006-Ohio-2935, ¶ 15. Thus, even if a defendant establishes that he was unavoidably 

prevented from filing his motion for a new trial within the time limits set forth in Crim.R. 

33(B), if there was an " 'undue delay in filing the motion after the evidence was discovered, 

the trial court must determine if that delay was reasonable under the circumstances or that 

the defendant has adequately explained the reason for the delay.' " State v. N.D.C., 10th 

Dist. No. 15AP-63, 2015-Ohio-3643, ¶ 16, quoting State v. Stansberry, 8th Dist. No. 71004 

(Oct. 9, 1997). 

{¶ 25} Here, appellant's affidavit states that McWhorter contacted him in "late 

2018." McWhorter's affidavit does not divulge when he contacted appellant. McWhorter 

states only that he had been incarcerated for over ten years and wished to set the record 

straight about appellant. Further, although appellant states in his motion for leave that his 

counsel obtained McWhorter's affidavit "as soon as he could to secure this information," 

appellant's affidavit contains no information regarding counsel's contacts with McWhorter, 

and the record does not include an affidavit from appellant's counsel delineating his efforts 

to obtain McWhorter's affidavit or when the affidavit was obtained. Further, McWhorter's 

affidavit is not dated, and neither appellant's motion nor his affidavit indicates when 

McWhorter signed the affidavit or provided it to him. Thus, it is impossible to determine 

whether appellant secured McWhorter's affidavit within a reasonable time after 

McWhorter contacted him. In any event, appellant did not file his motions until August 19, 

2019. Appellant provides no explanation for the delay between "late 2018" when he was 

contacted by McWhorter and the filing of the motions on August 19, 2019. 

{¶ 26} Based on the record before this court, we find that appellant failed to establish 

by clear and convincing proof that he was unavoidably prevented from discovering the 

evidence relied upon to support his motion for new trial, i.e., McWhorter's confession, 

within 120 days of the verdict. We further find that appellant failed to file his motion for 
No. 19AP-820 10 

leave to file a delayed motion for new trial within a reasonable time after discovering 

McWhorter's confession. As such, the trial court did not abuse its discretion in denying 

appellant's motion for leave to file a delayed motion for new trial. 

{¶ 27} Based on the foregoing, appellant's single assignment of error is overruled, 

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

Judgment affirmed.

BEATTY BLUNT and ZAYAS, JJ., concur. 

Zayas, J., of the First Appellate District, sitting by assignment 

in the Tenth Appellate District. 

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