[Cite as State v. Stinson, 2024-Ohio-1298.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

STATE OF OHIO 

 Appellee

v. 

JESSE M. STINSON

 Appellant

:

:

:

:

:

:

:

:

:

:

C.A. No. 29925

Trial Court Case No. 2013 CR 00237

(Criminal Appeal from Common Pleas 

Court)

. . . . . . . . . . .

O P I N I O N

Rendered on April 5, 2024

. . . . . . . . . . . 

JESSE M. STINSON, Appellant, Pro Se

 

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Attorney for Appellee

 . . . . . . . . . . . . .

TUCKER, J.

{¶ 1} Jesse M. Stinson appeals pro se from the trial court’s decision, order, and 

entry overruling 18 of his motions, including an untimely and successive motion for a new 

trial and petition for post-conviction relief.

{¶ 2} In eight assignments of error, Stinson challenges the trial court’s overruling 

of his motion for leave to file a new-trial motion, his new-trial motion, and his post-
-2-

conviction relief petition. He contends the trial court erred in finding that he had failed to 

demonstrate being unavoidably prevented from seeking relief sooner, that it lacked 

jurisdiction over some matters, and that he was not entitled to have certain evidence 

tested. 

{¶ 3} For the reasons set forth below, we see no error in the trial court’s overruling 

of Stinson’s motions or in its denial of post-conviction relief. Accordingly, the trial court’s 

judgment will be affirmed. 

I. Background 

{¶ 4} Stinson was convicted of murder and other serious offenses following a 2014 

jury trial. He received an aggregate sentence of 32 years to life in prison. The convictions 

involved Stinson fatally shooting the victim, Tyree North, during a drug dispute and then 

stealing items from North’s home. The State’s evidence included testimony from an 

eyewitness, James Demmons, who observed the shooting. This court affirmed Stinson’s 

convictions on direct appeal, overruling assignments of error addressing the weight and

sufficiency of the evidence, an earlier new-trial motion, and merger of allied offenses. See

State v. Stinson, 2d Dist. Montgomery No. 26449, 2015-Ohio-4405.

{¶ 5} In May 2015, Stinson filed a petition for post-conviction relief. The trial court 

denied relief, and Stinson did not appeal. Thereafter, in February 2018, he moved for a 

new trial based on newly-discovered evidence. Less than two weeks later, he filed a 

second new-trial motion. The trial court overruled both new-trial motions in September 

2018. This court affirmed on appeal in State v. Stinson, 2d Dist. Montgomery No. 28148, 

2019-Ohio-3400. 
-3-

{¶ 6} Between April and August 2023, Stinson filed 18 additional pro se motions. 

They included (1) a motion to waive fees, costs, or fines, (2) a successive post-conviction 

relief petition, (3) a motion for post-conviction discovery, (4) a motion for disclosure of 

plea agreements and unsealing of agreements, (5) a motion for leave to exceed page 

limitations, (6) a motion for leave to file a delayed successive motion for new trial, (7) a 

motion for disclosure of criminal records, (8) a motion for leave to examine witnesses or 

take depositions, (9) a motion to inspect and test physical evidence, (10) a delayed 

successive motion for new trial, (11) a second motion for disclosure of criminal records, 

(12) a second motion for post-conviction discovery, (13) a motion to strike, (14) a motion 

for stay, (15) a motion for leave to file reply, (16) a motion for production of prosecuting 

attorney’s notes, (17) a motion for production of audio and video recordings, and (18) a 

motion for leave to file an amended successive new-trial motion. 

{¶ 7} The trial court addressed and overruled all 18 motions in an August 16, 2023 

decision, order, and entry. This appeal by Stinson followed. We will resolve Stinson’s 

eight assignments of error in an order that best facilitates appellate review. 

II. Analysis

{¶ 8} Stinson’s first assignment of error states:

I. The Trial Court Erred When It Based Its Denial Of The Motion For 

Leave On The Meritlessness Of The Appellant’s Motion For New Trial 

Claims And Did So Without An Evidentiary Hearing.

{¶ 9} Stinson contends the trial court erred in denying him leave to file his new-trial 

motion based on a determination that the claims raised in his proposed motion lacked 
-4-

merit. He cites State v. Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991, 205 N.E.3d 513, in 

which the Ohio Supreme Court stressed that the issue when a defendant seeks leave to 

move for a new trial is whether “he was unavoidably prevented from discovering the 

evidence on which he seeks to base his motion.” Id. at ¶ 33. “Unless and until a trial court 

grants a defendant leave to file a motion for a new trial, the merits of the new-trial claim 

are not before the court.” Id.

{¶ 10} Unlike Hatton, the trial court did not sidestep the threshold issue regarding 

whether Stinson had been unavoidably prevented from filing a timely new-trial motion and 

deny him leave based on a finding that his proposed claims lacked merit. Instead, the trial 

court mentioned three substantive issues contained in Stinson’s proposed new-trial 

motion only in the context of finding that he had not demonstrated being unavoidably 

prevented from timely raising them. See Trial Court’s August 16, 2023 Decision, Order, 

and Entry at 10-11. The first assignment of error is overruled. 

{¶ 11} Stinson’s third assignment of error states:

III. The Trial Court Abused Its Discretion When It Denied Appellant 

Leave When He Presented Sufficient Operative Facts and Supporting 

Evidence To Establish He Was Unavoidably Prevented From 

Discovering The State Had Suppressed Information And That It Was 

Material, Without A Hearing Or Affording Him An Opportunity To 

Conduct Discovery. 

{¶ 12} Stinson contends he established being unavoidably prevented from 

discovering the evidence needed to support a claim raised in his new-trial motion. The 
-5-

claim at issue purported to be predicated on new evidence of an undisclosed deal 

between the State and James Demmons, a key prosecution witness at trial. 

{¶ 13} Stinson’s new-trial motion was untimely by many years under Crim.R. 33. 

Therefore, he needed leave to file it. To obtain leave to pursue a claim based on newlydiscovered evidence, he was required to demonstrate that he had been unavoidably 

prevented from discovering his new evidence within the time provided by Crim.R. 33(B). 

{¶ 14} In denying Stinson leave, the trial court identified a fundamental problem—

Stinson possessed no new evidence of an undisclosed agreement. In his motion for 

leave, Stinson referenced “the possibility” of “a constructive and/or contingency plea to 

the un-charged co-defendant [Demmons], after the state presented to the jury, that it 

never offered him a plea for his testimony[.]” See Defendant’s April 10, 2023 Motion for 

Leave to File a Delayed Motion for New Trial Instanter at 5. Stinson acknowledged, 

however, that he still lacked evidence to prove the existence of a secret agreement 

between the State and Demmons. Id. at 5-6. He explained that he intended to obtain such 

evidence through a motion for post-conviction discovery. But Stinson never obtained the 

evidence because the trial court overruled the discovery motion. That being so, the trial 

court correctly reasoned that Stinson could not establish unavoidable delay in obtaining 

evidence that he still did not possess. Accordingly, the third assignment of error is 

overruled.

{¶ 15} Stinson’s second, fifth, sixth, and eighth assignments of error address the 

trial court’s denial of statutory post-conviction relief. These assignments of error state:

II. The Trial Court Erred When It Found It Did Not Have Jurisdiction To 
-6-

Entertain His Petition Based On The Denial Of His Right To A Public 

Trial And Finding That His Right Was Not Violated, Without A Hearing 

Or The Opportunity To Conduct Discovery.

V. The Trial Court Erred When It Found It Did Not Have Jurisdiction To 

Determine If Appellant’s Counsel Was Ineffective For Failing To Object 

To The Seating Of A Biased Juror And Abused Its Discretion In Not 

Finding Counsel Ineffective, Without A Hearing.

VI. The Trial Court Erred When It Found It Did Not Have Jurisdiction 

To Entertain His Complaint Of His Due Process Right To Be Present 

At Every Stage Of The Proceeding When The Trial Court Altered Its 

Instructions To The Jury, Outside His Presence, In Spite Of Counsel’s 

Objections, Without A Hearing. 

VIII. The Trial Court Erred When It Found That It Did Not Have 

Jurisdiction To Entertain His Petition And Counsel Was Not Ineffective 

For Failing To Investigate And Interview Officer With Exculpatory 

Information Regarding His Case.

{¶ 16} The foregoing assignments of error address issues raised in Stinson’s 

untimely and successive petition for post-conviction relief, which he filed years after the 

time required by R.C. 2953.21. The time requirements in the statute are jurisdictional. 

Therefore, the trial court could not entertain Stinson’s petition unless he established (1) 

that he had been unavoidably prevented from discovering the facts on which his postconviction claims depended and (2) but for constitutional error at trial no reasonable
-7-

factfinder would have found him guilty. R.C. 2953.23(A)(1).

{¶ 17} Stinson’s second assignment of error involves a post-conviction claim 

concerning an alleged “partial closure” of the courtroom during his trial. He contends the 

trial court unlawfully denied access to certain spectators, thereby depriving him of his right 

to a public trial and committing structural error. Stinson claims he discovered the violation 

when he obtained a copy of his trial transcript in August 2021 and learned that the issue

had arisen during a sidebar discussion between the trial court and counsel. 

{¶ 18} Stinson’s fifth assignment of error concerns a claim for post-conviction relief 

based on the seating of a juror who was a distant third cousin of a detective who testified 

at trial. In his petition, Stinson alleged that the juror had failed to disclose this relationship 

during voir dire. He acknowledged, however, that the juror disclosed the relationship at 

the outset of the detective’s testimony immediately upon realizing it. During a sidebar, the 

juror explained that she saw the detective perhaps once a year and almost never spoke 

to him. She assured the trial court and respective counsel that she had never discussed 

the case with him and that she could remain impartial. Defense counsel did not object to 

her remaining on the jury. 

{¶ 19} Stinson’s sixth assignment of error involves a post-conviction claim about

the trial court responding to a jury question during deliberations. In his petition, Stinson 

alleged that the jury sent the trial court a note asking to review the testimony of two 

witnesses. Over defense counsel’s objection, the trial court responded that the jurors 

could review a witness’s testimony but that they had to review all of that witness’s 

testimony. The trial court also cautioned the jurors to consider any testimony they 
-8-

reviewed in the context of all evidence presented at trial. Stinson argued that his rights 

were violated because he was not present when the trial court resolved the foregoing 

issue.

{¶ 20} Stinson’s eighth assignment of error addresses a post-conviction claim 

predicated on defense counsel’s failure to investigate and interview a police officer who 

testified at trial. In his petition, Stinson noted that the State had presented trial testimony

about him “slamming” a laptop computer to the ground at the time of his arrest. He argued, 

however, that his discovery file contained a report from another officer who had 

interviewed him after his arrest. The report purportedly included a reference to Stinson 

telling the officer that he accidentally had dropped the laptop. Stinson claimed entitlement 

to a new trial based on his trial counsel’s ineffectiveness for failing to interview the officer 

whose report contained this information about him dropping rather than slamming the 

laptop.

{¶ 21} With regard to the foregoing claims, the trial court held that Stinson had 

failed to make either showing required by R.C. 2953.23 to file his petition. The trial court 

reasoned: “All of Defendant’s arguments as well as the evidence before the Court indicate 

that Defendant received or had all of the facts upon which he relies prior to the conclusion 

of his trial, so there was no unavoidable delay. In addition, Defendant has not 

demonstrated by clear and convincing evidence that his claimed errors would have led to 

a not guilty finding.” August 16, 2023 Decision, Order, and Entry at 6. 

{¶ 22} We see no error in the trial court’s denial of Stinson’s petition. Regardless 

of whether he had been unavoidably prevented from discovering the facts on which his 
-9-

post-conviction claims depended, he unquestionably failed to establish that but for 

constitutional error at trial no reasonable factfinder would have found him guilty. With 

regard to the second assignment of error, we are unpersuaded that Stinson’s trial was 

rendered fundamentally unfair or that he would have been acquitted but for the exclusion 

of a few spectators. Stinson’s assertion of structural error does not alter our conclusion. 

Although the denial of a public trial can be structural error, a defendant nevertheless still 

must establish prejudice when the issue is examined in post-conviction proceedings. 

State v. Mack, 8th Dist. Cuyahoga No. 101261, 2018-Ohio-301, ¶ 26, citing Weaver v. 

Massachusetts, 582 U.S. 286, 137 S.Ct. 1899, 198 L.Ed.2d 420 (2017).

{¶ 23} We reach the same conclusion as to Stinson’s other post-conviction claims. 

With regard to the fifth assignment of error, the juror acknowledged her distant 

relationship to a witness as soon as she realized it. The trial court questioned the juror, 

who professed that she could remain impartial. Stinson failed to demonstrate that no 

reasonable factfinder would have found him guilty but for his attorney’s failure to object 

to the juror’s continued participation. 

{¶ 24} With regard to the sixth assignment of error involving Stinson’s absence 

when the trial court and counsel decided how to respond to a note from the jury, his 

absence was not error given his attorney’s presence. See, e.g., State v. Pullen, 

Montgomery No. 25829, 2015-Ohio-552, ¶ 25. Moreover, we see no likelihood that the 

jury would have acquitted him but for his absence. 

{¶ 25} With regard to his eighth assignment of error, Stinson failed to demonstrate 

that no reasonable factfinder would have found him guilty but for his attorney’s failure to 
-10-

interview a police officer whose report contained information about his dropping rather 

than slamming a laptop computer. The laptop was just one of several items that Stinson 

stole from the home of the victim, Tyree North, after shooting North. Stinson was in 

possession of the laptop at the time of his arrest. Police later found the other items in a 

home where Stinson often stayed. At trial, a detective testified that Stinson slammed the 

laptop to the ground during a foot chase that ended in his arrest. Stinson’s argument in 

his post-conviction relief petition was that he simply had dropped the laptop and that he 

had told another officer that after his arrest. Once again, however, Stinson failed to 

demonstrate that no reasonable factfinder would have convicted him but for his attorney’s 

failure to investigate and interview the officer who took his statement about dropping the 

laptop. Accordingly, Stinson’s second, fifth, sixth, and eighth assignments of error are 

overruled. 

{¶ 26} Stinson’s fourth assignment of error states:

IV. The Trial Court Abused Its Discretion When It Denied Appellant 

Leave Because He Was Not Aware Of The Juror Failing to Answer 

Questions During Voir Dire That, Had A Correct Response Been Given, 

Would Have Provided A Valid Basis For A Challenge For Cause, 

Without A Hearing And An Opportunity To Conduct Discovery. 

{¶ 27} This assignment of error involves the same juror issue we addressed above 

in the context of Stinson’s post-conviction relief petition. In his fourth assignment of error, 

Stinson raises the issue again in the context of his new-trial motion. He argues that the 

trial court should have granted him leave to move for a new trial based on juror 
-11-

misconduct. 

{¶ 28} The trial court rejected Stinson’s argument, concluding that he had not been 

unavoidably prevented from discovering the issue sooner. The trial court noted that 

Stinson had attended voir dire and his trial. But even if we assume, arguendo, that Stinson 

made a prima facie showing of being unavoidably prevented from timely raising the issue

(because he did not participate in the trial court’s in-chambers discussion with the juror), 

there is no reason for a remand. As noted above, Stinson filed a new-trial motion 

contemporaneously with his motion for leave. Ordinarily, courts are not to consider the 

merits of a new-trial motion when considering whether leave should be granted to file it. 

Hatton at ¶ 30. 

{¶ 29} In State v. Bethel, 167 Ohio St.3d 367, 2022-Ohio-783, 192 N.E.3d 470, 

however, the Ohio Supreme Court reasoned that when a claim is rejected on the merits 

in the context of post-conviction relief analysis, granting a defendant leave to seek a new 

trial on the same claim would be futile even if Crim.R. 33’s unavoidably-prevented 

requirement has been satisfied. The Bethel court reasoned:

* * * [E]ven assuming arguendo that Bethel would be entitled to a hearing 

on his motion for a new trial, the hearing would be an exercise in futility, 

because we have concluded [under post-conviction relief analysis] that 

Bethel’s Brady claim, which is the basis of his motion, is without merit. 

Therefore, it is unnecessary to remand Bethel’s motion for leave to file a 

motion for a new trial under Crim.R. 33 to the trial court, because we find 

that the motion for a new trial would be without merit.”
-12-

Id. at ¶ 59; see also State v. Hale, 8th Dist. Cuyahoga No. 112163, 2023-Ohio-3894, ¶ 46

(recognizing that in Bethel the Ohio Supreme Court “contemplated the merits of the 

proposed motion for new trial because earlier in the same decision the court was required 

to assess the merits of identical claims raised in the defendant’s separately filed 

successive petition for postconviction relief”).

{¶ 30} We reach the same conclusion here. Given our resolution of the juror issue 

in the context of Stinson’s post-conviction relief petition, remanding for a hearing on the 

issue in the context of his new-trial motion would be an exercise in futility. As we explained 

above, the juror assured the trial court and respective counsel that she could remain 

impartial despite her distant relationship with a witness. Defense counsel did not object 

to her remaining on the jury. Based on the juror’s responses to questioning by the trial 

court and defense counsel’s lack of an objection, we see no likelihood that the juror’s 

continued presence materially affected Stinson’s substantial rights. Therefore, he has no 

conceivable grounds for a new trial under Crim.R. 33(A) predicated on the issue. The 

fourth assignment of error is overruled. 

{¶ 31} Finally, Stinson’s seventh assignment of error states:

VII. The Trial Court Abused Its Discretion When It Denied Appellant 

Leave to Conduct Testing Of Items That Would Have Undermined The 

Theory Of Guilt Used To Convict Him. 

{¶ 32} Stinson challenges the trial court’s overruling of his motion to inspect and 

test ammunition that had been loaded into a handgun, a spent bullet recovered from the 

victim’s head, and a box of ammunition. In his motion, Stinson argued that the loaded 
-13-

ammunition, the bullet, and the box of ammunition were evidentiary items relied on by the 

State at trial. He desired to test these items in the hope of establishing that the ammunition 

in the box did not match what was found in the handgun or the fired bullet. Stinson claimed

such a determination would support his new-trial motion, which asserted the existence of 

newly-discovered evidence that the ammunition in the box did not match the ammunition 

in the firearm or the projectile recovered from the scene. Stinson’s motion to inspect and 

test the foregoing items cited no supporting authority. 

{¶ 33} The trial court held that Stinson had no legal right to the requested 

discovery. To the extent that it might have possessed discretion to permit the testing, the 

trial court declined to allow it. We see no error in the trial court’s overruling of Stinson’s 

motion. At trial, the State presented evidence of Stinson possessing a .380 caliber pistol

shortly before his arrest. Police later found a .380 caliber pistol in a large planter very 

near the site of Stinson’s arrest. The weapon’s magazine contained four .380 caliber 

bullets. In addition, a box of .380 caliber ammunition was found in the home of Stinson’s 

girlfriend. DNA testing of the recovered pistol revealed a DNA mixture from which Stinson 

could not be excluded. Only one in every 132 people could have been a contributor. A 

bullet fired from the recovered pistol was compared to a bullet recovered from the victim’s 

head. Based on that comparison, an expert witness for the prosecution opined that the 

recovered pistol had fired the bullet that killed the victim. 

{¶ 34} On appeal, Stinson cites no legal authority entitling him to conduct 

additional testing on the ammunition that had been loaded into the handgun, the spent 

bullet recovered from the victim’s head, or the box of ammunition found in his girlfriend’s 
-14-

house. There is no right to court-assisted discovery in a closed criminal case to obtain 

evidence to support a new-trial motion. State v. Hoover-Moore, 2015-Ohio-4863, 50 

N.E.3d 1010, ¶ 23 (10th Dist.). The seventh assignment of error is overruled. 

III. Conclusion

{¶ 35} Based on the reasoning set forth above, the judgment of the Montgomery 

County Common Pleas Court is affirmed.

. . . . . . . . . . . . .

EPLEY, P.J. and HUFFMAN, J., concur.