[Cite as State v. Green, 2010-Ohio-6271.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V 

KEVIN L. GREEN SR., 

 DEFENDANT-APPELLANT. 

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 CASE NO. 10 MA 43 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 99CR893(C) 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee Paul Gains 

Prosecutor 

Ralph Rivera 

Assistant Prosecutor 

21 W. Boardman St., 6th Floor 

Youngstown, Ohio 44503-1426 

For Defendant-Appellant Kevin L. Green, Sr. pro-se 

Toledo Correctional Institution 

#A399-990 

2001 East Central Avenue 

P.O. Box 80033 

Toledo, Ohio 43608-0033 

JUDGES: 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

 

 

 Dated: December 13, 2010 
[Cite as State v. Green, 2010-Ohio-6271.]

DONOFRIO, J. 

{¶1} Defendant-appellant, Kevin Green, Sr., appeals from a Mahoning 

County Common Pleas Court decision overruling his motion for leave to file a 

delayed motion for new trial pursuant to Criminal Rule 33(a)(6). 

{¶2} This case has been before us numerous times. We laid out the 

following statement of facts in appellant's direct appeal. 

{¶3} “On the night of September 17, 1999, John Allen, the victim, was at an 

apartment building located at 1515 Market Street, Youngstown, Ohio. Green, William 

Robinson, Jeron Hunter, and Lamar Logan were also at this apartment building. 

Sometime during that night, Allen told Robinson that he was planning to rob Green. 

(Tr. 595). Robinson reported this information to Green which resulted in Green asking 

Robinson to get him a gun. (Tr. 597). Robinson left the apartment building and later 

returned with a gun. Once Green had the gun, he and Robinson confronted Allen 

about Allen's plan to rob Green. During the confrontation, Robinson hit Allen because 

it looked as if Allen had a gun. Green, Hunter, and Logan also began hitting Allen. 

(Tr. 604). 

{¶4} “According to Robinson, the beating of Allen continued to ensue for 

several minutes. (Tr. 606). Robinson claims that Green tied up Allen and with the 

help of Hunter carried Allen to Green's car where they placed him in the trunk. (Tr. 

607). It is claimed that Green, Hunter and Robinson then went to Lincoln Park, 

Youngstown, Ohio, where Allen was fatally shot six times in the head. (Tr. 356, 369). 

The testimony does not reveal who had the gun in Lincoln Park or who shot Allen. 

Logan, Hunter and Robinson all entered plea agreements with the state to testify 

against Green.” State v. Green, 7th Dist. No. 01CA54, 2003-Ohio-3074, ¶2-3. 

{¶5} A jury found appellant guilty of complicity to commit aggravated murder 

and kidnapping. The trial court sentenced appellant to life in prison for complicity to 

commit murder and ten years for kidnapping. This court affirmed that judgment. 

Green, 7th Dist. No. 01CA54. 

{¶6} Appellant filed a motion for new trial and evidentiary hearing asserting 

he had newly discovered evidence. The trial court denied these motions. On appeal, 
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we reversed and remanded the matter for an evidentiary hearing. State v. Green, 7th 

Dist. No. 05-MA-116, 2006-Ohio-3097. Eventually, however, the supposed author of 

the newly discovered evidence affidavit denied ever writing it, and appellant withdrew 

his motion. 

{¶7} On November 12, 2009, appellant moved for leave to file a delayed 

motion for new trial pursuant to Criminal Rule 33(A)(6), based on newly discovered 

evidence in the form of statements and affidavits from co-defendant Hunter. The trial 

court overruled that motion on December 4, 2009. 

{¶8} On March 9, 2010, appellant filed a notice of appeal. This court granted 

appellant leave to file a delayed appeal after finding the trial court’s judgment entry 

overruling his “request for leave to file a delayed motion for new trial pursuant to 

Criminal Rule 33(a)(6)” was sent to his former trial counsel, and he was unaware of it 

until two months after its entry. 

{¶9} Appellant, acting pro se, now raises three assignments of error, the first 

of which states: 

{¶10} “THE TRIAL COURT ERRED IN OVER-RULING THE APPELLANT[']S 

MOTION FOR [LEAVE TO FILE A DELAYED MOTION FOR] NEW TRIAL WITHOUT 

AN EVIDENCE HEARING. IN VIOLATION OF THE APPELLANT'S FIFTH, SIXTH, 

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.” 

{¶11} Appellant argues that the trial court erred in overruling his motion for 

leave to file a delayed motion for new trial. For support, appellant relies on 

statements and affidavits from co-defendant Hunter. In these statements and 

affidavits, Hunter stated that he and appellant were not at Lincoln Park on the night of 

the murder. The statements and affidavits are dated May 4, 2000, November 3, 2003, 

and April 17, 2005. Appellant argues that Hunter’s statements and affidavits are 

newly discovered evidence that significantly contradict the testimony of the state's 

witnesses predicating a different result at trial, if a new trial is granted. 

{¶12} Regarding why appellant was unavoidably prevented from discovering 

this evidence and filing a timely motion, he lists three reasons. First, appellant 
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himself did not “stumble upon” the May 22, 2000 supplement to discovery until 2009. 

Hence, appellant implies that such evidence is newly discovered to him. Second, 

appellant argues that witness intimidation prevented Hunter from originally telling the 

truth, and such intimidation was documented in the evidence itself. Appellant cites 

the supplement to discovery file-stamped May 22, 2000, which contains a letter from 

Hunter in which Hunter described being intimidated by the police and co-defendant 

Robinson. Third, appellant alleges that because the state failed to find the specifics 

of what Hunter lied about, appellant was unavoidably prevented from discovering the 

evidence and filing his motion within a reasonable time. 

{¶13} A trial court’s decision to grant or deny a new trial on grounds of newly 

discovered evidence falls within the court’s sound discretion. State v. Hawkins

(1993), 66 Ohio St.3d 339, 350. Therefore, we will not reverse such a decision 

absent an abuse of discretion. Abuse of discretion connotes more than an error of 

law or judgment; it implies the trial court’s judgment was arbitrary, unreasonable, or 

unconscionable. State v. Adams (1980), 62 Ohio St. 151, 157. 

{¶14} In this case, the trial court denied appellant leave to file a delayed 

motion for new trial. Thus, we must examine the timeliness of appellant’s motion. 

{¶15} Crim.R. 33(B) addresses timeliness when the basis of a new trial 

motion is newly discovered evidence: 

{¶16} “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 prevented from discovering the evidence within the one hundred twenty 

day period.” 

{¶17} Because appellant’s motion was filed well outside the 120-day period, 

he was required to obtain leave of court to file his motion for new trial. Leave of court 
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must be granted before the merits of the motion are reached. State v. Lordi, 149 

Ohio App.3d 627, 2002-Ohio-5517, at ¶25. 

{¶18} “To obtain leave, unavoidable delay must be proved by clear and 

convincing evidence. Crim.R. 33(B). ‘[A] party is unavoidably prevented from filing a 

motion for new trial if the party had no knowledge of the existence of the ground 

supporting the motion for a 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 (1984), 19 Ohio App.3d 141, 146, 19 OBR 

230, 483 N.E.2d 859.” Id. at ¶26. The requirement of clear and convincing evidence 

puts the burden on the defendant to prove he was unavoidably prevented from 

discovering the evidence in a timely manner. State v. Fortson, 8th Dist. No. 82545, 

2003-Ohio-5387, at ¶12. 

{¶19} Further, any delay in filing the motion must have been reasonable 

under the circumstances. State v. Unsworth, 10th Dist. Nos. L-09-1205, L-09-1206, 

2010-Ohio-398, at ¶18. 

{¶20} Appellant did not file his motion for leave to file a delayed motion for 

new trial until eight years after his jury trial. In his motion, he admitted he learned of 

the new evidence “shortly there-after [sic.]” his February 2001 trial. Thus, the eightyear delay was clearly unreasonable. 

{¶21} Additionally, appellant, through his counsel, was aware of Hunter's 

letter because it was included in the supplement to discovery on May 22, 2000, nine 

months before trial. According to that letter, Hunter was even willing to give a 

statement at that time. Given Hunter's willingness, with due diligence appellant could 

have uncovered the related information contained in Hunter's subsequent affidavits. 

Thus, even though appellant himself may not have “stumbled upon” the evidence 

until later, there is no clear and convincing evidence that anything prevented him 

from discovering such evidence at the time of the trial. Therefore, it is not “newly 

discovered” pursuant to Criminal Rule 33. 
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{¶22} Therefore, the trial court did not abuse its discretion when it denied 

appellant's motion for leave. Accordingly, appellant's first assignment of error is 

without merit. 

{¶23} Appellant's second assignment of error states: 

{¶24} “THE STATE ERRED IN VIOLATING THE TRIAL COURT[']S 

SEPARATION ORDER, DENYING THE APPELLANT A FAIR TRIAL UNDER THE 

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.” 

{¶25} Appellant argues that the state violated his right to a fair trial under the 

Fourteenth Amendment when it failed to enforce a separation order and allowed his 

co-defendants to be housed in the same pod in the county jail. 

{¶26} “Under the doctrine of res judicata, a final judgment of conviction bars 

the convicted defendant from raising and litigating in any proceeding, except an 

appeal from that judgment, any defense or any claimed lack of due process that was 

raised or could have been raised by the defendant at the trial which resulted in that 

judgment of conviction or on an appeal from that judgment.” State v. Perry (1967), 

10 Ohio St.2d 175, 180. 

{¶27} Because appellant could have raised this issue at trial or in his direct 

appeal, res judicata bars him from raising it now. Thus, appellant's second 

assignment of error is without merit. 

{¶28} Appellant's third assignment of error states: 

{¶29} “THE TRIAL COURT ERRED IN ALLOWING THE CONDITIONAL 

RELEASE OF WITNESSES MATERIAL TO THE OUTCOME OF THE TRIAL. A 

VIOLATION OF THE APPELLANT'S FIFTH, SIXTH, AND FOURTEENTH 

AMENDMENTS OF THE UNITED STATES CONSTITUTION.” 

{¶30} Appellant argues that the trial court erred in allowing the conditional 

release of material witnesses at trial. 

{¶31} Once again, because appellant could have raised this issue at trial or in 

his direct appeal, res judicata bars him from raising it now. Thus, appellant's third 

assignment of error is without merit. 
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{¶32} For the above stated reasons, the trial court’s judgment is hereby 

affirmed. 

Vukovich, P.J., concurs. 

Waite, J., concurs.