[Cite as State v. Cashin, 2017-Ohio-9289.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 17AP-338 

v. : (C.P.C. No. 08CR-3899)

Christopher E. Cashin, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

 

D E C I S I O N 

Rendered on December 28, 2017 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Steven L. 

Taylor, for appellee. Argued: Steven L. Taylor. 

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, Christopher E. Cashin, appeals a judgment of the 

Franklin County Court of Common Pleas that denied his motion for leave to file a delayed 

motion for a new trial. For the following reasons, we affirm that judgment.

{¶ 2} On February 27, 2009, a jury found Cashin guilty of one count of 

kidnapping, one count of rape, two counts of gross sexual imposition, and one count of 

felonious assault. The trial court sentenced Cashin to 25 years to life imprisonment.

{¶ 3} Cashin was convicted for sexually abusing P.B., who was then ten years old, 

on the night of April 19 and 20, 2008. On that night, P.B. slept at the home of his 
No. 17AP-338 2 

maternal uncle, Joseph Midlick. Cashin and Midlick were good friends, and Cashin also 

stayed overnight at Midlick's home on April 19 and 20, 2008. While P.B. was sleeping in 

the basement, Cashin came downstairs. Cashin removed his clothes and P.B.'s clothes, 

and Cashin touched and licked P.B.'s "private." (Tr. at 39-40.) Cashin also forced P.B. to 

touch Cashin's "private." (Tr. at 41.)

{¶ 4} The next day, P.B. told his mother, T.B., what had happened. T.B. called the 

Columbus Police Department. A Columbus police officer spoke with P.B. about the 

incident, and P.B. was taken to Nationwide Children's Hospital for an examination. 

During that examination, a nurse took a swab from P.B.'s neck because P.B. had told her 

that Cashin had licked him there. The swab tested positive for the presence of saliva. The 

major donor to the sample matched P.B.'s DNA, and the minor donor matched Cashin's 

DNA.

{¶ 5} After Cashin was convicted, he appealed the judgment against him to this 

court. We affirmed that judgment. See State v. Cashin, 10th Dist. No. 09AP-367, 2009-

Ohio-6419. 

{¶ 6} On July 19, 2016, Cashin filed two motions before the trial court: a motion 

for leave to file a delayed motion for a new trial and a motion for a new trial. In his 

motions, Cashin contended that he had recently discovered evidence that warranted a 

new trial. Cashin's newly discovered evidence consisted of the affidavit testimony of three 

different witnesses.

{¶ 7} In the first affidavit, John Midlick, the brother of T.B. and Joseph Midlick, 

testified that T.B. is controlling, homophobic, obsessed with money, a thief, and a habitual 

liar. John Midlick also stated that T.B. has falsely accused him and his brothers, James 

and Jeff Midlick, of physically and/or sexually abusing P.B. According to John Midlick, 

T.B. would allege abuse against anyone who threatened her inheritance of Joseph 

Midlick's estate. Finally, John Midlick represented that P.B. would do anything to please 

T.B., including making false allegations against someone his mother perceived as a threat. 

{¶ 8} In the second affidavit, Jeff Midlick, the brother of T.B., Joseph Midlick, 

and John Midlick, testified that T.B. had falsely alleged in a probate court proceeding that 

their mother, Helen Midlick, had abused P.B. Like his brother, Jeff Midlick also stated 

that (1) T.B. had falsely accused P.B.'s uncles, including him, of physically and/or sexually 
No. 17AP-338 3 

abusing P.B.; (2) T.B. would level accusations of abuse of P.B. against anyone who 

threatened her inheritance of Joseph Midlick's estate; and (3) P.B. would do anything to 

make his mother happy, including making false abuse allegations. Additionally, 

according to Jeff Midlick, two weeks before P.B. accused Cashin of sexually abusing him, 

T.B. overheard Cashin tell Joseph Midlick that he was crazy to put T.B.'s name on the 

deed to his house.

{¶ 9} In the third affidavit, Debra Mullen, a friend of T.B. and an acquaintance of 

Cashin, testified that T.B. is controlling, homophobic, obsessed with money, and a 

habitual liar. Mullen also stated that P.B. would do anything to make his mother happy, 

including making false accusations against someone T.B. perceived as a threat.

{¶ 10} In addition to the three witnesses' affidavits, Cashin submitted his own 

affidavit to the trial court. Cashin stated that he "had no idea" that T.B. had falsely 

accused John, Jeff, James, and Helen Midlick of abusing P.B. (Cashin Aff. at ¶ 6-8.) 

Cashin's affidavit also included the following averments:

13. Affiant states that he has done everything possible to 

procure this information since his conviction in 2009. 

14. Affiant states that the affiants were unwilling to testify on 

his behalf and have been unwilling since 2009. 

(Cashin Aff. at ¶ 13-14.)

{¶ 11} In a judgment issued April 10, 2017, the trial court denied Cashin's motion 

for leave to file a delayed motion for a new trial. The trial court found that Cashin was not 

unavoidably prevented from discovering the evidence in the three witnesses' affidavits 

within the 120-day period provided by Crim.R. 33(B) to file a motion for a new trial based 

on newly discovered evidence. The trial court's denial of Cashin's motion for leave 

rendered moot the motion for a new trial, so the trial court did not rule on it.

{¶ 12} Cashin now appeals the trial court's judgment, and he assigns the following 

error:

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

OVERRULED APPELLANT'S MOTION FOR LEAVE TO FILE 

A MOTION FOR A NEW TRIAL. 
No. 17AP-338 4 

{¶ 13} Preliminarily, we must address the state's argument that we should review 

the judgment before us as a denial of a postconviction petition instead of a denial of a 

motion for leave to file a delayed motion for a new trial. The state essentially contends 

that the General Assembly tacitly abolished Crim.R. 33 when it established the 

postconviction petition as the exclusive means by which a person may collaterally attack 

the validity of a conviction. See R.C. 2953.21(K). We reject this argument. This court has 

repeatedly stated that the Crim.R. 33 procedures for a new trial exist independently from 

the R.C. 2953.21 procedure for postconviction relief. See State v. Boone, 10th Dist. No. 

16AP-387, 2017-Ohio-843, ¶ 5, fn. 1; State v. Caulley, 10th Dist. No. 12AP-100, 2012-

Ohio-2649, ¶ 18; State v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-2244, ¶ 5, fn.1; 

State v. Burke, 10th Dist. No. 06AP-656, 2006-Ohio-4597, ¶ 10; State v. Lee, 10th Dist. 

No. 05AP-229, 2005-Ohio-6374, ¶ 13. 

{¶ 14} We now turn to the merits of Cashin's argument that the trial court erred in 

denying his motion for leave to file a delayed motion for a new trial. Pursuant to Crim.R. 

33(A)(6), a court may grant a motion for 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 on 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. 

{¶ 15} Thus, where a defendant misses filing within the 120-day period, Crim.R. 33 

mandates a two-step procedure. State v. Graggs, 10th Dist. No. 16AP-611, 2017-Ohio4454, ¶ 13; State v. Noor, 10th Dist. No. 16AP-340, 2016-Ohio-7756, ¶ 11. First, the 

defendant must file a motion for leave to file a delayed motion for new trial. The 

defendant must support his motion with evidence that he was unavoidably prevented 

from learning of the newly discovered evidence within the 120-day period for filing a 

Crim.R. 33(A)(6) motion. Graggs at ¶ 13; Noor at ¶ 11. Second, if the trial court grants 
No. 17AP-338 5 

the motion for leave, the defendant must file his actual motion for a new trial. Noor at 

¶ 11. In that motion, the defendant must 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. Hawkins, 66 Ohio St.3d 339, 350 (1993), quoting State v. Petro, 148 Ohio St. 505 

(1947), syllabus.

{¶ 16} A defendant is unavoidably prevented from filing a motion for a 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." State v. Walden, 19 

Ohio App.3d 141, 146 (10th Dist.1984). Given the defendant's obligation to exercise 

reasonable diligence, the defendant cannot claim that evidence was undiscoverable simply 

because no one made efforts to obtain the evidence sooner. Graggs at ¶ 15; Noor at ¶ 17; 

State v. Anderson, 10th Dist. No. 12AP-133, 2012-Ohio-4733, ¶ 14. In other words, a 

defendant cannot demonstrate that he was unavoidably prevented from discovering new 

evidence when he could have discovered that evidence earlier had he exercised reasonable 

diligence and effort. State v. Lenoir, 2d Dist. No. 26846, 2016-Ohio-4981, ¶ 24. 

{¶ 17} To allow the trial court to gauge the defendant's diligence, the defendant 

must describe all investigative actions undertaken within the 120-day period for timely 

filing a Crim.R. 33(A)(6) motion and explain why he was unavoidably prevented from 

discovering the evidence before the 120-day period elapsed. State v. Whiteside, 10th Dist. 

No. 15AP-55, 2015-Ohio-3490, ¶ 19; State v. Ambartsoumov, 10th Dist. No. 12AP-878, 

2013-Ohio-3011, ¶ 25; State v. Golden, 10th Dist. No. 09AP-1004, 2010-Ohio-4438, ¶ 19; 

State v. West, 10th Dist. No. 09AP-474, 2009-Ohio-5203, ¶ 13; State v. Bush, 10th Dist. 

No. 08AP-627, 2009-Ohio-441, ¶ 10-11. Mere conclusory allegations do not prove that the 

defendant was unavoidably prevented from discovering the evidence he seeks to 

introduce as support for a new trial. Noor at ¶ 17; State v. Waddy, 10th Dist. No. 15AP397, 2016-Ohio-4911, ¶ 19; Anderson at ¶ 14; West at ¶ 12.
No. 17AP-338 6 

{¶ 18} Trial courts apply the clear-and-convincing-evidence standard to determine 

whether a defendant was unavoidably prevented from discovering the evidence on which 

he seeks a new trial. Civ.R. 33(B). 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.

{¶ 19} Appellate courts apply an abuse-of-discretion standard in reviewing a trial 

court's denial of a motion for leave to file a delayed motion for a new trial. Anderson at 

¶ 9. An abuse of discretion is more than an error of law or judgment; it implies that a trial 

court's decision was unreasonable, arbitrary, or unconscionable. State v. Thompson, 141 

Ohio St.3d 254, 2014-Ohio-4751, ¶ 91. An appellate court may not determine that a trial 

court abused its discretion simply because the appellate court might not have reached the 

same conclusion. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 14.

{¶ 20} Here, a jury found Cashin guilty on February 27, 2009. Cashin sought a 

new trial based on newly discovered evidence over seven years later, on July 19, 2016. 

Cashin, therefore, clearly missed the 120-day deadline. Consequently, to secure court 

review of his motion for a new trial, Cashin had to establish that he was unavoidably 

prevented from discovering the evidence contained in the affidavits of John Midlick, Jeff 

Midlick, and Mullen. To accomplish this, Cashin testified in his affidavit that he did not 

know about the false abuse allegations that T.B. had leveled against her family members. 

Additionally, Cashin stated that he did "everything possible" to procure the witnesses' 

testimony, but the witnesses have been unwilling to provide their testimony since 2009. 

(Cashin Aff. at ¶ 13-14.)

{¶ 21} Cashin's statement that he did everything possible to obtain the witnesses' 

testimony is a conclusory allegation devoid of the detail needed to determine whether 

Cashin exercised reasonable diligence. Without a description of the actions undertaken to 

obtain the witnesses' testimony, a court cannot determine whether it agrees with Cashin's 

own assessment of his efforts. Thus, Cashin's statement that he did everything possible 

does not prove that Cashin acted with reasonable diligence.
No. 17AP-338 7 

{¶ 22} A court could potentially interpret Cashin's statement that the witnesses 

were unwilling to provide affidavit testimony as an explanation for why Cashin was 

unavoidably prevented from discovering the evidence contained in the affidavits within 

the 120-day period after the jury verdict. However, Cashin failed to produce any evidence 

regarding his efforts to obtain the witnesses' affidavits. Without that evidence, Cashin 

cannot establish that he exercised reasonable diligence to overcome the witnesses' 

unwillingness before the 120-day period lapsed. Cashin's testimony, therefore, does not 

constitute clear and convincing evidence of unavoidable prevention.

{¶ 23} Because Cashin failed to prove that he was unavoidably prevented from 

discovering the evidence he relies upon as a basis for his motion for a new trial, the trial 

court did not err in denying his motion for leave. Accordingly, we overrule Cashin's sole 

assignment of error, and we affirm the judgment of the Franklin County Court of 

Common Pleas.

Judgment affirmed. 

DORRIAN and HORTON, JJ., concur.