[Cite as State v. Hawk, 2021-Ohio-4533.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : No. 21AP-265 

 (C.P.C. No. 11CR-5746)

v. : 

 (REGULAR CALENDAR) 

Jyshonne D. Hawk, : 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on December 23, 2021 

 

On brief: G. Gary Tyack, Prosecuting Attorney, and Mark R. 

Wilson, for appellee. 

On brief: Jyshonne D. Hawk, pro se. 

 

APPEAL from the Franklin County Court of Common Pleas 

LUPER SCHUSTER, J. 

{¶ 1} Defendant-appellant, Jyshonne D. Hawk, pro se, appeals from a decision and 

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

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

I. Facts and Procedural History 

{¶ 2} By indictment filed October 31, 2011, plaintiff-appellee, State of Ohio, 

charged Hawk with one count of attempted murder in violation of R.C. 2923.02 as it relates 

to 2903.02, a first-degree felony; and four counts of felonious assault in violation of R.C. 

2903.11, second-degree felonies. All five counts in the indictment contained accompanying 

firearm specifications in violation of R.C. 2941.145. 

{¶ 3} The matter proceeded to a jury trial. In State v. Hawk, 10th Dist. No. 12AP895, 2013-Ohio-5794, this court summarized the evidence produced at trial as follows:
No. 21AP-265 2 

According to the state's evidence, in early October 2011, 

Delilah Collier ("Delilah") and her common-law husband, 

Cleophus Rumph-Holiday ("Cleo"), moved into one side of a 

double located at 1507 Duxberry Avenue ("1507 Duxberry") in 

Columbus, Ohio, along with their children, 15-year-old S.K., 

8-year-old M.H., and 11-month-old C.R. A porch extending 

between 1507 Duxberry and the other side of the double, 

located at 1505 Duxberry Avenue ("1505 Duxberry"), is 

separated only by a metal railing. 

At approximately 11:30 p.m. on October 12, 2011, Delilah, 

Cleo, and S.K. were seated on the front porch of their house, 

listening to music. Police officers arrived and reported they 

had received a complaint of loud music and that someone on 

the porch was holding a gun. After finding no gun, the police 

admonished the group to turn down the music and then left. 

Shortly thereafter, Delilah's nephew, Darrick Jordan, joined 

the group on the porch. 

 At approximately the same time, a woman named Brenda 

Peck, who lived across the street at 1510 Duxberry Avenue 

("1510 Duxberry"), but at the time was sitting on the front 

porch of a double just east of 1507 Duxberry, shouted at 

Delilah to turn down the music. Delilah accused Brenda of 

calling the police, and the two women exchanged heated 

words. To avoid further confrontation with Brenda, Delilah 

went to an internet café with Cleo, Darrick, and the children. 

The group returned to 1507 Duxberry sometime before 1:00 

a.m. on October 13, 2011. Cleo and the children went inside 

the house; Delilah and Darrick sat on the front porch smoking 

cigarettes. Delilah and Darrick observed a light-skinned 

African-American man emerge from the front door of the 

house at 1510 Duxberry, holding what Delilah described as a 

"long gun." (Tr. 55.) According to Delilah, the man shouted 

"[w]ho in the fuck has a problem with me and my baby's mom 

over here." (Tr. 57.) As the man continued to shout, persons 

from inside 1510 Duxberry wrestled the gun from him and 

pulled him into the house. 

Moments later, the light-skinned man exited 1510 Duxberry, 

removed his jacket and shirt, and ran into the street. A darkskinned African-American man wearing a hoodie sweatshirt 

walked to the bottom of the stairs at 1507 Duxberry and 

averred he had been trying to calm the light-skinned man. The 

light-skinned man then ran onto the front porch at 1505 
No. 21AP-265 3 

Duxberry and began arguing with Darrick. Hearing the 

argument, Cleo and S.K. came out of the house. The lightskinned man began shouting at Cleo and attempted to strike 

him. Cleo struck the man in retaliation. 

According to Delilah, the light-skinned man then removed a 

gun from his back pocket, fired several shots as he ran down 

the stairs from the porch, and ran away. S.K. and Darrick 

testified that the light-skinned man ran from the porch to the 

front yard after being struck by Cleo. Darrick, S.K., and Cleo 

all testified that they did not actually see a gun in the man's 

hands when shots were fired. However, Darrick testified that 

he heard gunshots, and Cleo and S.K. testified that they saw 

"fire," coming from the front yard where the man was 

standing. (Tr. 179, 242.) 

Both Delilah and S.K. averred that the dark-skinned man ran 

from the front porch around the side of the house toward the 

back yard when the gunfire began. Both testified that the 

dark-skinned man did not fire the shots. 

Cleo was struck in the mid-section by multiple bullets and 

sustained serious injuries. Delilah, Darrick, and S.K. were also 

shot. Thereafter, the four victims ran inside the house. Cleo 

dialed 911, and Delilah reported to the police dispatcher that 

she and several others had been shot by "people across the 

street." (Tr. 84, exh. No. 33 (CD of 911 call.)) According to 

Delilah, the group retreated to the back of the house because 

they heard several gunshots outside. 

Columbus Police Officer Zachary Rosen was dispatched to the 

scene at approximately 12:55 a.m.; he arrived less than a 

minute later. He was directed to the scene by some people 

standing outside a house located at 1501 Duxberry Avenue 

("1501 Duxberry"). When Officer Rosen arrived at 1507 

Duxberry, he pounded on the door for a minute or two; when 

no one answered, he kicked in the door to gain entry. Inside 

the house, he found four individuals who had sustained 

gunshot wounds. The shooting victims were thereafter 

transported to various hospitals. 

The police interviewed Delilah at the hospital. At trial, Delilah 

admitted that during this interview, she spontaneously stated 

that she did not see a gun in the light-skinned man's hand. She 

attributed this statement to the fact that she was traumatized 
No. 21AP-265 4 

by the shooting and was taking pain medications. She 

admitted, however, that during the same interview, she 

correctly recounted several other details of the shooting. She 

averred at trial that she presently remembered seeing the 

light-skinned man remove a gun from his back right pocket 

and fire several shots. 

Columbus Police Detective Randy Vanvorhis interviewed 

Brenda Peck after the shooting and she consented to a search 

of 1510 Duxberry. During that search, police recovered an 

empty rifle case and an empty handgun case from the 

basement, ammunition from one of the bedrooms, and a 

baggie containing .22 caliber ammunition from the front yard. 

During a search of 1507 Duxberry, no guns or ammunition 

were recovered; however, spent shell casings were recovered 

from both the front porch and front yard. Detective Vanvorhis 

admitted that the police did not request expert analysis 

regarding bullet trajectory or fingerprint analysis of the shell 

casings recovered from 1507 Duxberry. 

Detective Vanvorhis eventually developed appellant as a 

suspect, and generated two photo arrays which included 

appellant's photograph. Because appellant had no criminal 

record at the time of the incident, the photograph used in the 

first array was taken from the LEADS database. This photo 

array was presented to Delilah and S.K. Delilah unequivocally 

identified appellant as the light-skinned African-American 

man who fired the shots on October 13, 2011. In the "Viewer's 

Statement" portion of the document accompanying the photo 

array, Delilah wrote "Photo number two [appellant] looks just 

like the person who came to my home and shot me and my 

family." (State's exh. No. 41(A)). S.K. circled appellant's 

picture in the photo array, but candidly admitted at trial that 

he told the police immediately after identifying appellant that 

he "[did not] know if that's him." (Tr. 186.) In the "Viewer's 

Statement" portion of the document accompanying the photo 

array, S.K. wrote "I thought it was photo #2 [appellant] but 

that's not the right person." (Tr. 186.) S.K. testified at trial, 

however, that there was only one light-skinned AfricanAmerican man involved in the incident and that he was 

certain the dark-skinned man did not fire the shots. 

The second photo array, which included a mug shot of 

appellant following his arrest, was presented to Darrick and 

Cleo. Darrick was unable to identify appellant as the shooter. 

At trial, Darrick averred he told the police he could not make 
No. 21AP-265 5 

an identification because the shooter "had * * * fuller facial 

hair and he was high yellow." (Tr. 145; State's exh. No. 43A.) 

Cleo first identified a photograph of someone other than 

appellant as the shooter, but indicated he was only 50 percent 

certain of the identification and wanted to look at the 

photographs again "because they look[ed] alike." (State's exh. 

No. 44(A.)) Cleo then selected appellant as the shooter and 

indicated he was "100% sure." (State's exh. No. 44A.) He 

wrote in the "Viewer's Statement" portion of the document 

accompanying the photo array that "[#]5 [appellant] shot me 

on 13th." (State's exh. No. 44A.) 

A few days before trial, S.K. identified a photograph of Jywaun 

Yoest, appellant's half-brother, as the dark-skinned AfricanAmerican man present at the scene on October 13, 2011. At 

trial, Delilah, Cleo, Darrick, and S.K. all identified appellant 

as the person who shot them. Both Darrick and S.K. 

unequivocally testified that the dark-skinned man was not the 

shooter; rather, it was the light-skinned man. 

Three additional witnesses, Verlin Peck, Shea Wade, and 

Nicole Wade testified about the events of October 12 and 13, 

2011 as part of the state's case-in-chief. Verlin testified that he 

resided at 1510 Duxberry with his daughter, Brenda Peck, her 

children, and the children's father, appellant. Sometime after 

midnight on October 13, 2011, Verlin was inside 1510 

Duxberry performing household chores when he heard 

appellant run up and down the stairs. Thereafter, Brenda told 

Verlin that appellant had taken a .22 rifle outside. Appellant's 

mother, Jeanetta Yoest, who lived next door at 1512 Duxberry, 

retrieved the rifle from appellant, unloaded it, and handed it 

to Verlin. Verlin examined the rifle to ensure it contained no 

shells and then stored it in the basement. Soon thereafter, 

Brenda ran into the house, closed the front door, and reported 

that appellant had been in a fight outside and that "shots had 

occurred." (Tr. 286-87.) Verlin told her that she should get 

away from the door and protect her children. 

At some point after the shootings, police took Verlin to the 

police station for questioning. Verlin told the police that 

Brenda told him that "Shonne shot a gun." [("Shonne" is 

nickname for Hawk.)] (Tr. 290.) The police performed a 

gunshot residue test on Verlin's hands, which revealed 

particles "highly indicative of a gunshot primer residue," and 

that such was consistent with a person having just discharged 

a firearm, having been in the vicinity of a firearm upon 
No. 21AP-265 6 

discharge, or having handled an item with gunshot primer 

residue on it. (Tr. 288, State's exh. No. 40.) 

At trial, Verlin admitted he did not see who fired the gunshots 

and did not even hear any gunshots being fired outside. He 

denied firing a weapon on October 13, 2011. 

At the time of the incident, Shea and Nicole Wade lived at 1501 

Duxberry. Both were seated on their front porch and saw the 

neighbors at 1510 Duxberry wrestle a long gun away from 

appellant. According to the Wades, appellant did not go back 

inside 1510 Duxberry after the gun was taken away; rather, he 

immediately began arguing with the residents of 1507 

Duxberry. He then walked toward the Wades and asked Shea 

whether he would confront a person who had been 

disrespectful to the mother of his child. When Shea responded 

affirmatively, appellant walked up on the porch at 1505 

Duxberry. One of the men at 1507 Duxberry punched 

appellant, and he fell backward on the porch. Shea then heard 

several gunshots and saw appellant run away. 

According to Shea, appellant was wearing only sweatpants 

with red shorts underneath at the time of the shooting. He did 

not think appellant was the shooter because he did not see 

appellant with a gun, the gunshots began immediately after 

appellant was punched and fell down on the porch, and the 

shots came from the front yard and continued after appellant 

ran away from the scene. Although Shea admitted that he 

would not have been able to see a gun in the pocket of 

appellant's sweatpants, he averred that he did not think 

appellant had a gun in his pocket because his sweatpants were 

not "sagging." (Tr. 340.) Shea further testified that he told the 

police during interviews on October 24 and November 7, 2011 

that appellant could not have been the shooter. 

Nicole testified that after the shots were fired, she heard 

someone shout, "it was Shonne, it was Shonne." (Tr. 368.) 

Nicole thought the person was mistaken because she did not 

see appellant with a gun when he was talking to Shea and she 

did not believe appellant would have had time to fire a gun 

after he was punched and fell backward on the porch. Nicole 

averred that she told police in an interview on November 15, 

2011 that appellant could not have fired the shots because they 

came from the front yard of 1507 Duxberry and he was 

standing on the porch of 1505 Duxberry at the time. She 

further averred that she told a defense investigator in May or 
No. 21AP-265 7 

June 2012 that she observed an African-American male 

wearing dark clothing exit 1510 Duxberry and try to defuse the 

situation between appellant and the people at 1507 Duxberry. 

Nicole admitted that she saw no one other than appellant 

arguing with the residents of 1507 Duxberry, and that 

appellant was "upset" and "out of * * * control" during the 

incident. (Tr. 389.) 

Appellant was arrested on October 21, 2011. On December 2, 

2011, the police recovered a firearm from an abandoned house 

located at 260 South Fourth Street. A test fire of that firearm 

established its operability, and comparison of spent shell 

casings from the test fire with information obtained from a 

national ballistics database revealed a match with shell 

casings recovered from both the October 13, 2011 shooting 

and a shooting on November 8, 2011. Police did not request 

fingerprint analysis of the gun recovered on December 2, 

2011. 

Several witnesses, including appellant, testified on appellant's 

behalf. According to these witnesses, at the time of the 

incident, Brenda and Jeanetta were sitting with Mona Lisa 

Conley and her minor grandchildren, T.J. and Q.C., on the 

front porch of Lisa's house at 1511 Duxberry. Following the 

argument between Brenda and Delilah, appellant and Jywaun 

arrived at Lisa's house. According to Lisa, an AfricanAmerican man emerged from 1507 Duxberry and stared at the 

group seated on Lisa's porch; Lisa admonished Jywaun not to 

say anything to the man. Appellant and Jywaun then left 

Lisa's house. Appellant walked across the street to his house. 

As Jywaun walked away, he slipped on the steps; Jeanetta, 

Lisa, and T.J. observed a black-handled gun protruding from 

his right pocket. Jeanetta was not surprised Jywaun had a gun 

because he had carried one with him for several years. 

A short time later, appellant exited his house carrying a "long 

gun." (Tr. 518.) Jeanetta left Lisa's porch and walked over to 

help Brenda and Verlin get the rifle away from appellant. 

Jeanetta testified she did so because she knew he was angry 

about the confrontation between Brenda and Delilah and she 

was afraid of what he would do with a gun. Appellant 

eventually went back into the house, but emerged a short time 

later and walked onto the porch at 1505 Duxberry. Jeanetta 

followed appellant because she wanted to stop him from 

fighting with the neighbors. According to Jeanetta, appellant 

did not have a gun at this point. 
No. 21AP-265 8 

At the same time, Jywaun walked to the bottom of the steps at 

1507 Duxberry and attempted to mollify the situation between 

the neighbors and appellant. According to both T.J. and Lisa, 

Delilah went inside her house and emerged with what they 

believed to be a gun and handed it to one of the men on the 

porch. Lisa testified that she heard the sound of a gun click at 

1507 Duxberry and went inside her house. She heard gunshots 

immediately thereafter, but did not see who fired the shots. 

According to T.J. and Jeanetta, Cleo hit appellant while 

appellant was standing on the porch at 1505 Duxberry. 

Jeanetta testified that after Cleo hit appellant, she saw Jywaun 

standing in the front yard with his arm extended and a gun in 

his hand, firing several shots. T.J. testified that although he 

did not actually see Jywaun pull the trigger, he "seen the 

gunfire come from the spot [Jywaun] was standing." (Tr. 555.) 

T.J. was certain that Jywaun fired the gun, and that no shots 

were fired from the porch at 1505 Duxberry. Q.C. confirmed 

T.J.'s testimony that Jywaun was standing at the bottom of the 

steps at 1505 Duxberry when the shots were fired. Q.C. 

testified that he did not actually see Jywaun fire a weapon; 

however, he observed the flash of a gun from the spot where 

Jywaun was standing. Both appellant and Jywaun then ran 

from the scene. 

Immediately after the shooting, Lisa heard her neighbor, 

Trish, yell "Shonne, you did this, this is your fault. Shonne, 

ain't nobody done this but you, Shonne." (Tr. 526-27.) When 

the police arrived, she overheard Delilah report that "the 

white guy Shonne across the street did it." (Tr. 527.) 

Lisa, T.J., Q.C., and Jeanetta testified that they did not 

immediately inform the police about what transpired on 

October 13, 2011 because they were distrustful of the police. 

Lisa and T.J. first recounted their versions of the events to a 

defense investigator in May 2012. After appellant was 

arrested, Jeanetta told Jywaun he should tell the police he was 

the shooter. Jeanetta admitted that she not tell the police that 

Jywaun was the shooter until June 2012. 

Appellant testified that he and Jywaun returned to the 

Duxberry Avenue neighborhood late on October 12, 2011 after 

drinking at a friend's house. The two men joined Brenda, 

Jeanetta, and Lisa on Lisa's front porch. After smoking 

marijuana, appellant walked to his house with Brenda. Brenda 

told him that the neighbors at 1507 Duxberry Avenue had 
No. 21AP-265 9 

been "rude and nasty" to her, calling her names and accusing 

her of calling the police on them. (Tr. 590.) Appellant was 

immediately angry and left his house to confront the 

neighbors. When he challenged Delilah about her argument 

with Brenda, Delilah threatened to have her boyfriend beat 

him up. 

Appellant returned to his house and retrieved a .22 rifle from 

upstairs because he "had an attitude" and he knew the people 

at 1507 Duxberry had guns and shot them every day. (Tr. 591.) 

According to appellant, the rifle was not loaded; however, he 

put a baggie of .22 caliber ammunition in his jacket pocket on 

the way out the door. Jeanetta, Brenda, and Verlin wrestled 

the rifle away from him. 

Appellant then ran into the street and started arguing with 

Cleo, who was standing in the doorway of 1507 Duxberry. 

While he was arguing with Cleo, Darrick walked down the 

steps from the porch and stood near Jywaun. Because he 

thought Darrick wanted to fight him, appellant removed his 

jacket and placed it on the ground near his front yard. As he 

did so, the baggie of bullets fell out of the pocket. 

Appellant then walked to the Wades' front yard and asked 

Shea what he would do if someone made disrespectful 

comments to the mother of his child. When Shea responded 

that he would confront such a person, appellant walked onto 

the porch at 1505 Duxberry and continued to argue with Cleo. 

Cleo punched appellant, and appellant immediately saw a 

"flash" coming from the front yard, near the area where 

Jywaun and Darrick had been standing. (Tr. 599.) Appellant 

assumed he was the target of the shooting, so he ran away. 

As he was running, he noticed Jywaun running behind him in 

the same direction. Jywaun told him that he fired the shots 

because the people at 1507 Duxberry had a gun and were going 

to shoot him and appellant. When appellant returned to his 

house about an hour later, he saw the police canvassing the 

neighborhood. He did not tell the police what had happened 

because he was afraid to do so. 

Appellant later learned that the police were looking for him, 

and he attempted, albeit unsuccessfully, to contact them. 

Following his October 21, 2011 arrest, he provided a statement 

to the police. He did not tell the police that Jywaun had fired 
No. 21AP-265 10 

the shots because Jywaun is his brother and appellant did not 

fully understand that he was being charged with a crime. 

Appellant acknowledged that he and Jywaun have easily 

distinguishable skin tones—appellant is light-skinned, while 

Jywaun is dark-skinned. Appellant denied that he was armed 

with another gun after the rifle was taken away from him, and 

averred that he did not believe he needed a gun because he 

knew Jywaun was carrying one. He admitted that Jywaun and 

Darrick were not arguing with one another, and that Jywaun 

was not the one who was "outraged" and "out of control." (Tr. 

616.) He denied firing the shots on October 13, 2011. 

On June 22, 2012, Detective Vanvorhis received a telephone 

call from a person who identified himself only as appellant's 

brother; the call was audiotaped. Appellant identified the 

voice on the audiotape as that of Jywaun. The audiotape was 

played for the jury at trial. The transcript of the call establishes 

that the caller stated he had committed the crimes with which 

appellant had been charged, and that he wanted to turn 

himself into the police, "but only if my brother is for sure that 

he can get out." (Tr. 670.) According to Detective Vanvorhis, 

the caller never provided a statement in person. 

Hawk at ¶ 2-36. 

{¶ 4} Following deliberations, the jury found Hawk guilty of all five charges. The 

trial court sentenced Hawk to an aggregate term of 40 years in prison, journalizing his 

convictions and sentence in an October 3, 2012 judgment entry. Hawk appealed, arguing, 

as relevant here, that his convictions were against the manifest weight of the evidence. In 

a December 31, 2013 decision, this court affirmed Hawk's convictions, concluding the 

manifest weight of the evidence supported Hawk's convictions of attempted murder and 

felonious assault. Hawk at ¶ 63-65. 

{¶ 5} Nearly seven years after the date of his conviction, on September 26, 2019, 

Hawk filed a motion to void the judgment and requested leave to file a delayed motion for 

new trial ("first motion for leave"). In his first motion for leave, Hawk argued the state 

withheld exculpatory evidence in the form of documentation of Jywaun's arrest. Hawk 

asserted the evidence demonstrated that Jywaun had surrendered to Detective VanVorhis 

after calling the detective and admitting his own guilt in the shootings. In support of his 

first motion for leave, Hawk filed Jywaun's affidavit ("Jywaun's first affidavit"), dated 
No. 21AP-265 11 

September 2, 2016, more than three years before the date of Hawk's motion for leave. Hawk 

also filed a printout from the Franklin County Municipal Court's website for case No. 

2012CRA-015404 indicating that Jywaun had been arrested on June 22, 2012, listing the 

complaining officer as Detective VanVorhis, and indicating the case was dismissed on 

June 26, 2012. However, the municipal court printout mistakenly listed the offense date as 

November 11, 2011, though Hawk did not note the mistaken date in his first motion for 

leave. Hawk argued that the municipal court arrest record proves that Detective VanVorhis 

perjured himself when he testified that Jywaun never provided an in-person statement to 

police. The state opposed Hawk's first motion for leave to file a delayed motion for new 

trial. 

{¶ 6} In a November 7, 2019 judgment entry, the trial court denied Hawk's first 

motion for leave to file a delayed motion for new trial. The trial court found that Hawk 

could not show by clear and convincing evidence that he was unavoidably prevented from 

discovering the evidence of Jywaun's arrest record within the 120-day deadline. 

Specifically, the trial court noted that Jywaun is Hawk's brother and was present at trial, 

although Jywaun invoked his Fifth Amendment right against self-incrimination at trial. 

Further, the trial court provided alternative grounds to deny Hawk's first motion for leave: 

the trial court noted that even if it were to find that Hawk was unavoidably prevented from 

discovering the evidence of Jywaun's arrest within the 120-deadline, the arrest record 

indicates an arrest for an offense date of November 11, 2011, nearly one month after the 

October 13, 2011 date of Hawk's offenses, and thus was not evidence that Jywaun ever made 

an in-person statement relevant to Hawk's charged offenses. Finally, the trial court noted 

that the arrest record, itself, is not proof that Jywaun ever made an in-person statement to 

Detective VanVorhis, and Jywaun's first affidavit states only that he tried to turn himself 

in, was arrested and jailed, and then released. Jywaun's first affidavit does not contain any 

statement that he was interviewed about Hawk's crimes or ever made an in-person 

statement to Detective VanVorhis. Hawk did not appeal the trial court's denial of his first 

motion for leave. 

{¶ 7} On March 23, 2021, more than 16 months after the trial court denied his first 

motion for leave, Hawk filed another motion for leave to file a delayed motion for new trial 

("second motion for leave"). In his second motion for leave, Hawk again argued the state 
No. 21AP-265 12 

withheld exculpatory evidence of Jywaun's arrest for the same offenses and that he was 

unavoidably prevented from discovering the evidence of that arrest within the Crim.R. 33 

time frame. Attached to his second motion for leave, Hawk filed copies of Jywaun's 

municipal court case, including (1) a June 22, 2012 criminal complaint charging Jywaun 

with felonious assault, (2) a notification of need to amend the complaint to reflect the 

proper offense date of October 13, 2011, (3) a June 26, 2012 motion to dismiss pending 

felony signed by the prosecutor, (4) a June 26, 2012 entry dismissing the case against 

Jywaun, and (5) a media request from WBNS-TV to record, videotape, and broadcast the 

proceedings in Jywaun's case. Additionally, Hawk filed his own affidavit dated March 15, 

2021, a December 11, 2020 affidavit from his friend, Danika Wickham, and a second 

affidavit of Jywaun, dated February 1, 2021. The state opposed Hawk's second motion for 

leave. 

{¶ 8} In an April 26, 2021 decision and entry, the trial court denied Hawk's second 

motion for leave, finding Hawk's motion not well-taken. Hawk timely appeals. 

II. Assignment of Error 

{¶ 9} Hawk assigns the following error for our review: 

The trial court abused its discretion by denying Hawk's Crim 

33(B) motion for leave to file a delayed motion for new trial, as 

the context of the "not well taken" decision is contrary to the 

United States Supreme Court preceident set forth in Banks v. 

Dretke. 

(Sic passim.) 

III. Analysis 

{¶ 10} In his sole assignment of error, Hawk argues the trial court abused its 

discretion in denying his motion for leave to file a delayed motion for new trial. 

{¶ 11} An appellate court reviews a trial court's decision granting or denying a 

Crim.R. 33 motion for new trial for an abuse of discretion. State v. Townsend, 10th Dist. 

No. 08AP-371, 2008-Ohio-6518, ¶ 8, citing State v. Schiebel, 55 Ohio St.3d 71, 76 (1990). 

Similarly, we will not disturb a trial court's decision granting or denying a Crim.R. 33(B) 

motion for leave to file a delayed motion for new trial absent an abuse of discretion. 

Townsend at ¶ 8, citing State v. Pinkerman, 88 Ohio App.3d 158, 160 (4th Dist.1993). An 
No. 21AP-265 13 

abuse of discretion connotes a decision that is unreasonable, arbitrary, or unconscionable. 

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

{¶ 12} Hawk premised his motion for new trial on newly discovered evidence that 

he alleges demonstrated misconduct on the part of the prosecution and witnesses for the 

state. Crim.R. 33 provides, in pertinent part:

(A) Grounds. A new trial may be granted on motion of the 

defendant for any of the following causes affecting materially 

his substantial rights: 

* * * 

(2) Misconduct of the jury, prosecuting attorney, or the 

witnesses for the state; 

* * * 

(6) When new evidence material to the defense is discovered 

which the defendant could not with reasonable diligence have 

discovered and produced at the trial. 

* * * 

(B) Motion for new trial; form, time. 

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 
No. 21AP-265 14 

prevented from discovering the evidence within the one 

hundred twenty day period. 

{¶ 13} Thus, Crim.R. 33(B) contemplates a two-step procedure when a defendant 

seeks to file a motion for new trial outside either the 14-day deadline for motions filed under 

Crim.R. 33(A)(2) or the 120-day deadline for motions filed under Crim.R. 33(A)(6). In 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. State v. Bethel, 

10th Dist. No. 09AP-924, 2010-Ohio-3837, ¶ 13; State v. Gaven, 10th Dist. No. 16AP-645, 

2017-Ohio-5524, ¶ 13, 17. In the second step, if the trial court finds unavoidable prevention 

by clear and convincing evidence, then the defendant must file the motion for new trial 

within seven days from the trial court's order. Bethel at ¶ 13; Gaven at ¶ 13, 17. 

{¶ 14} A defendant demonstrates he was 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." Bethel at ¶ 13, citing State v. Berry, 10th Dist. 

No. 06AP-803, 2007-Ohio-2244, ¶ 19. "Clear and convincing proof that the defendant was 

unavoidably prevented from filing 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." (Internal quotations and citations omitted.) State v. Lee, 10th 

Dist. No. 05AP-229, 2005-Ohio-6374, ¶ 9. "The standard of 'clear and convincing evidence' 

is defined as that measure or degree of proof that is more than a mere preponderance of the 

evidence, but not to the extent of such certainty that as is required beyond a reasonable 

doubt in criminal cases, and that will produce in the mind of the trier of fact a firm belief or 

conviction as to the facts sought to be established." Townsend at ¶ 7, citing Cross v. 

Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

{¶ 15} In order to warrant the granting of a motion for new trial in a criminal case 

based on newly discovered evidence, 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 
No. 21AP-265 15 

cumulative to former evidence, and (6) does not merely impeach or contradict the former 

evidence." State v. Petro, 148 Ohio St. 505 (1947), syllabus. See also Lee at ¶ 9. In his 

motion for leave to file a motion for new trial, Hawk argued he was unavoidably prevented 

from discovering the evidence of Jywaun's arrest and that such evidence demonstrates both 

that the state improperly withheld exculpatory evidence and that Detective VanVorhis 

perjured himself.

{¶ 16} As a threshold matter, we consider the application of res judicata to this case. 

"The doctrine of res judicata 'prevents repeated attacks on a final judgment and applies to 

issues that were or might have been previously litigated.' " State v. Russell, 10th Dist. No. 

06AP-498, 2006-Ohio-6221, ¶ 12, quoting State v. Sneed, 8th Dist. No. 84964, 2005-Ohio1865, ¶ 16. As this court has stated, "[r]es judicata applies to Crim.R. 33 motions for new 

trial." State v. Braden, 10th Dist. No. 17AP-321, 2018-Ohio-1807, ¶ 11, citing State v. 

Waddy, 10th Dist. No. 15AP-397, 2016-Ohio-4911, ¶ 40, citing State v. Russell, 10th Dist. 

No. 04AP-1149, 2005-Ohio-4063, ¶ 6-7; State v. Fox, 10th Dist. No. 08AP-704, 2009-Ohio1327, ¶ 7 (the doctrine of res judicata bars re-litigation of issues in a motion for leave to file 

a delayed motion for new trial when those issues were or could have been addressed in 

earlier court proceedings). See also State v. Hill, 8th Dist. No. 108250, 2020-Ohio-102, 

¶ 36 (" '[r]es judicata bars all subsequent new trial motions that are based on claims that 

were brought or could have been brought on direct appeal or in prior motions filed under 

Crim.R. 33' "), quoting State v. Williamson, 8th Dist. No. 107117, 2019-Ohio-1985, ¶ 14. 

{¶ 17} Here, in addition to his direct appeal, Hawk previously filed a motion for 

leave to file a delayed motion for new trial. Though Hawk filed more documentation in 

support of his second motion for leave, Hawk does not explain how the matters raised in 

the instant second motion for leave could not have been raised in his first motion for leave. 

See Russell, 2006-Ohio-6221, at ¶ 12 (where an appellant previously filed a direct appeal 

and a prior motion for new trial, the trial court does not abuse its discretion in denying 

appellant's successive motion for new trial on the grounds of res judicata). 

{¶ 18} Hawk's argument in support of both his first and second motions for leave is 

that the evidence of Jywaun's arrest demonstrates that Detective VanVorhis perjured 

himself in his testimony when he stated that Jywaun never provided an in-person 

statement to police. However, in Jywaun's second affidavit filed along with the second 
No. 21AP-265 16 

motion for leave, Jywaun avers that when he turned himself into police, he "almost 

immediately told [the detective] that [he] did not want to make a statement at that time but 

that [he] was the one [the detective had] spoke with before on the phone." (Feb. 2, 2021 

Jywaun's Second Aff. at 1.) Thus, though Hawk filed more thorough documentation in 

support of his second motion for leave, the documents, themselves, do not demonstrate 

that Detective VanVorhis perjured himself in his testimony.

{¶ 19} Moreover, we need not decide the question of whether the evidence provided 

in support of Hawk's second motion for leave would satisfy the Crim.R. 33(A) standard for 

a new trial because, under the two-step process for an untimely motion for new trial, Hawk 

fails to first establish, pursuant to Crim.R. 33(B), that he was unavoidably prevented from 

discovering the evidence of Jywaun's arrest within the applicable time frame. Jywaun's 

second affidavit states that his arrest and arraignment were broadcast on the news, and 

Hawk testified at trial that he saw the news report of Jywaun's arrest. Additionally, after 

Jywaun's release from custody but prior to Hawk's trial, the state filed supplemental 

discovery of a DVD interview of Jywaun and audio recordings of Jywaun's jail phone calls. 

We also note, as the trial court did when it denied Hawk's first motion for leave, that Jywaun 

is Hawk's brother and was present at Hawk's trial. Thus, Hawk does not establish he either 

had no knowledge of Jywaun's arrest or could not have learned of Hawk's arrest with the 

exercise of due diligence within the applicable Crim.R. 33 time frame. Bethel at ¶ 13. 

{¶ 20} Similarly, to the extent we construe Hawk's motion as one under Crim.R. 

33(A)(2), Hawk does not establish that he was unavoidably prevented from learning of the 

prosecutor's alleged withholding of exculpatory evidence such that he could not have filed 

his motion for new trial within 14 days of the jury's verdict. "[T]he suppression by the 

prosecution of evidence favorable to an accused upon request violates due process where 

the evidence is material either to guilt or to punishment, irrespective of the good faith or 

bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). "To prove a 

Brady violation, a defendant must establish that: (1) the prosecution withheld evidence; 

(2) the defense was not aware of the evidence; and (3) the evidence withheld was material 

and exculpatory." (Emphasis added.) State v. Zeune, 10th Dist. No. 13AP-147, 2013-Ohio4156, ¶ 18, citing State v. Monroe, 10th Dist. No. 04AP-658, 2005-Ohio-5242, ¶ 17. Thus, 

there can be no Brady violation where the defendant was aware of the evidence allegedly 
No. 21AP-265 17 

withheld. Zeune at ¶ 19 ("a Brady violation involves the post-trial discovery of information 

that was known to the prosecution, but unknown to the defense") (emphasis sic). As we 

explained above, the record indicates Hawk had knowledge of Jywaun's arrest at the time 

of his trial. Thus, the trial court did not abuse its discretion in concluding Hawk did not 

establish he was unavoidably prevented from filing a motion for new trial under Crim.R. 

33(A)(2) within 14 days of the jury's verdict. 

{¶ 21} Accordingly, even if we were to find that res judicata did not operate to bar 

Hawk's second motion for leave, we nonetheless conclude the trial court did not abuse its 

discretion in concluding that Hawk did not demonstrate he was unavoidably prevented 

from discovering the evidence of Jywaun's arrest or of learning of the prosecutor's alleged 

misconduct. Therefore, the trial court did not abuse its discretion in denying Hawk's 

second motion for leave to file a delayed motion for new trial. We overrule Hawk's sole 

assignment of error. 

IV. Disposition 

{¶ 22} Based on the foregoing reasons, the trial court did not abuse its discretion in 

denying Hawk's successive motion for leave to file a delayed motion for new trial. Having 

overruled Hawk's sole assignment of error, we affirm the judgment of the Franklin County 

Court of Common Pleas. 

Judgment affirmed. 

DORRIAN, P.J., and JAMISON, J., concur.