[Cite as State v. Cannon, 2016-Ohio-3173.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 103298 

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

DEMETRICE CANNON

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-13-574884-A 

BEFORE: Boyle, J., Jones, A.J., and Celebrezze, J. 

RELEASED AND JOURNALIZED: May 26, 2016
ATTORNEY FOR APPELLANT 

Paul A. Mancino 

Mancino Mancino & Mancino 

75 Public Square Building 

Suite 1016 

Cleveland, Ohio 44113-2098 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Frank Romeo Zeleznikar 

 Amy Venesile 

Assistant County Prosecutors 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 

Scott Zarzycki 

Assistant County Prosecutor 

9300 Quincy Avenue, 4th Floor 

Cleveland, Ohio 44106 
MARY J. BOYLE, J.: 

{¶1} Defendant-appellant, Demetrice Cannon, appeals a judgment denying his 

motion for leave to file a motion for a new trial (hereinafter referred to only as “motion 

for a new trial”). He raises one assignment of error for our review: 

Defendant was denied due process of law when his motion for leave to file 

a motion for a new trial based on newly discovered evidence was summarily 

overruled by the court. 

{¶2} Finding no merit to his appeal, we affirm. 

I. Cannon Convicted

{¶3} In October 2013, Cannon was convicted of murder and having a weapon 

while under a disability. The following relevant facts were presented at a bench trial. 

{¶4} Cannon and the victim were shooting dice together. Eventually, they got 

into a verbal argument over money. Cannon left the area, but returned to the scene. 

When he did, the victim was driving away. Cannon ran after the victim’s car and 

flagged him down. Once again, Cannon and the victim began arguing. Cannon 

ultimately shot the victim, firing at least four shots at him. The victim died from the 

gunshot wounds. The police found four shell casings at the scene. 

{¶5} Cannon initially told police that he was nowhere near the incident at the 

time of shooting, and that he did not even know the victim. But at trial, two witnesses, 

Demarco Parker and Brittany Baker-Terrell, rebutted those statements. Parker and 

Baker-Terrell testified that they saw Cannon shoot at the victim. 
{¶6} At trial, Cannon testified on his own behalf. He stated that he shot the 

victim in self-defense, asserting that the victim shot at him first. Several witnesses 

testified, however, that the victim did not have a firearm that evening. Other witnesses 

also testified that the victim did not shoot at Cannon. 

{¶7} The trial court sentenced Cannon to a total of 19 years to life in prison. 

{¶8} Cannon directly appealed his convictions, which this court affirmed. See 

State v. Cannon, 8th Dist. Cuyahoga No. 100658, 2014-Ohio-4801. 

II. First Petition for Postconviction Relief 

{¶9} While his direct appeal was pending, Cannon filed a petition for 

postconviction relief, claiming his trial counsel was ineffective. The trial court denied 

his petition. This court affirmed the trial court’s decision, finding that he raised the 

same claims in his direct appeal. State v. Cannon, 8th Dist. Cuyahoga No. 101733, 

2015-Ohio-1543. 

III. Motion for New Trial Based on Newly Discovered Evidence: Trial 

Witness Recants 

{¶10} Although Cannon titled his motion as a “motion for a new trial, or in the 

alternative,” he only set forth the law and argument on his motion for a new trial. In his 

motion, he claimed that one of the key witnesses at his trial, Demarco Parker, had 

recanted. Cannon attached Parker’s affidavit to his petition. Parker averred that he 

was under duress by the victim’s family to say that Cannon shot the victim. Parker 

further averred, “However, I never saw Demetrice Cannon shoot no one, and I did testify 

to a lie that they wanted me to say.” Cannon asserted in his motion that he could not 
have known this information previously, and that he was entitled to a new trial based on 

this newly discovered evidence. 

{¶11} The trial court denied Cannon’s new trial motion without a hearing. It is 

from this judgment that Cannon appeals. 

IV. Crim.R. 33

{¶12} Cannon argues that he was denied due process of law without a hearing 

when he presented evidence of “actual innocence” in his Crim.R. 33 motion for a new 

trial based on newly discovered evidence. Crim.R. 33, however, does not contemplate a 

motion for a new trial on grounds of evidence demonstrating “actual innocence” apart 

from the grounds set forth in Crim.R. 33(A)(6). Thus, a motion for a new trial based on 

the premise of “actual innocence” must demonstrate the strong probability that the newly 

discovered evidence would have led to a verdict of not guilty. State v. Jalowiec, 9th 

Dist. Lorain No. 14CA010548, 2015-Ohio-5042, ¶ 30. 

{¶13} Crim.R. 33(A)(6) provides that “[a] new trial may be granted on motion of 

the defendant for any of the following causes affecting materially his substantial rights”: 

When new evidence material to the defense is discovered which the 

defendant could not with reasonable diligence have discovered and 

produced at the trial. When a motion for a new trial is made upon the 

ground of newly discovered evidence, the defendant must produce at the 

hearing on the motion, in support thereof, the affidavits of the witnesses by 

whom such evidence is expected to be given, and if time is required by the 

defendant to procure such affidavits, the court may postpone the hearing of 

the motion for such length of time as is reasonable under all the 

circumstances of the case. The prosecuting attorney may produce 

affidavits or other evidence to impeach the affidavits of such witnesses. 

{¶14} Under Crim.R. 33(B), however, 
[m]otions for a new trial based upon newly discovered evidence must be 

filed within one hundred twenty days after the verdict was rendered, unless 

it appears by clear and convincing proof that the movant was unavoidably 

prevented from discovering the new evidence[.] 

 

A party is unavoidably prevented from filing a motion for a new trial if the party 

establishes that he or she “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.” State v. Parker, 178 Ohio App.3d 574, 2008-Ohio-5178, 899 N.E.2d 183, ¶ 16 

(2d Dist.), citing State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th 

Dist.1984). 

{¶15} A Crim.R. 33(A)(6) motion for new trial on the ground of newly discovered 

evidence may be granted only if that 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, 76 N.E.2d 370 (1947), syllabus. 

{¶16} By its terms, Crim.R. 33 does not require a hearing on a motion for a new 

trial. Thus, the decision to conduct a hearing is one that is entrusted to the discretion of 

the trial court. State v. Smith, 30 Ohio App.3d 138, 139, 506 N.E.2d 1205 (9th 

Dist.1986). The decision whether to grant a motion for a new trial also 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, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990). 
V. Analysis

{¶17} Cannon did not timely file his motion for a new trial based upon newly 

discovered evidence. But we agree with him that he showed, by clear and convincing 

evidence, that he was unable to timely discover this “new evidence” with due diligence. 

{¶18} Nonetheless, Cannon does not meet the first Petro criteria, which states that 

a new trial may be granted only if the newly discovered evidence “discloses a strong 

probability that it will change the result if a new trial is granted.” Id. at the syllabus. 

First, there was another witness (Baker-Terrell) who testified at Cannon’s trial that she 

saw Cannon shoot at the victim. Thus, it is unlikely that Parker’s affidavit amounts to a 

“strong probability” that it would change the outcome of the trial if a new trial was 

granted. But even more significantly, Cannon also testified at trial that he shot the 

victim in self-defense. Cannon’s testimony that he shot the victim negates any 

possibility, let alone a “strong probability,” that this new evidence — a witness who now 

says he did not see Cannon shoot the victim — would change the result if a new trial was 

granted. Cannon further argues that the trial court should have at least held a hearing on 

his motion. The same judge who presided over Cannon’s trial — a bench trial — is the 

same judge who denied his first petition for postconviction relief and his motion for a 

new trial that is the subject of this appeal. “‘[T]he acumen gained by the trial judge who 

presided during the entire course of [the] proceedings makes [her] well qualified to rule 

on the motion for a new trial on the basis of the affidavit[s] and makes a time consuming 
hearing unnecessary.’” State v. Monk, 5th Dist. Knox No. 03CA12, 2003-Ohio-6799, ¶ 

20, quoting United States v. Curry, 497 F.2d 99, 101 (5th Cir.1974). 

“The trial judge is in a peculiarly advantageous position * * * to pass upon 

the showing made for a new trial. [The judge] has the benefit of observing 

the witnesses at the time of the trial, is able to appraise the variable weight 

to be given to their subsequent affidavits, and can often discern and assay 

the incidents, the influences, and the motives that prompted the recantation. 

 [The judge] is, therefore, best qualified to determine what credence or 

consideration should be given to the retraction, and [the judge’s] opinion is 

accordingly entitled to great weight. If the rule were otherwise, the right 

of new trial would depend on the vagaries and vacillations of witnesses 

rather than upon a soundly exercised discretion of the trial court.” 

Taylor v. Ross, 150 Ohio St. 448, 452, 83 N.E.2d 222 (1948), quoting State v. Wynn, 178 

Wash. 287, 34 P.2d 900 (1934). 

{¶19} Here, the reasoning set forth in Monk, Curry, and Taylor is even more 

applicable because in this case, the trial court was also the factfinder. Thus, the trial 

court in this case, who observed the witnesses testifying and subsequently found Cannon 

guilty, was in the best position to decide if a hearing on Cannon’s motion was necessary. 

{¶20} Cannon points to State v. Covender, 9th Dist. Lorain No. 11CA010093, 

2012-Ohio-6105, and State v. Carusone, 1st Dist. Hamilton No. C-130003, 

2013-Ohio-5034, in support of his argument that the trial court erred in denying his 

motion without an evidentiary hearing. This court recently found these cases 

distinguishable on their facts in a similar case and we likewise find them distinguishable 

here. See State v. Conner, 8th Dist. Cuyahoga No. 103092, 2016-Ohio-301 (for a 

discussion on the facts of Covender and Carusone). 
{¶21} After thoroughly reviewing the record and applicable law, we hold that 

Cannon’s “newly discovered evidence” does not meet the Petro criteria because it would 

not change the outcome of the trial if a new trial was granted. Accordingly, the trial 

court did not abuse its discretion in denying Cannon’s motion without an evidentiary 

hearing. 

{¶22} Cannon’s sole assignment of error is overruled. 

{¶23} Judgment affirmed. 

It is ordered that appellee recover from appellant the costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

 

MARY J. BOYLE, JUDGE 

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

FRANK D. CELEBREZZE, JR., J., CONCUR