Opinion

State v. Allen

2024 Ohio 970

Court: Ohio Court of Appeals
Filed: Mar 14, 2024
Status: Published
On the bench: E.A. Gallagher
Cited by: 8 cases
Authority: More cited than 57.7%

The opinion

[Cite as State v. Allen,

2024-Ohio-970.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 112782

v. :

DEMETRIUS ALLEN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: March 14, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-10-540250-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Owen Knapp, Assistant Prosecuting

Attorney, for appellee.

Patituce & Associates, LLC, Joseph C. Patituce, Megan M.

Patituce, and Erin M. Branham, for appellant.

EILEEN A. GALLAGHER, P.J.:

Defendant-appellant, Demetrius Allen, appeals the trial court’s denial

of his motion for leave to file a motion for a new trial. Allen contends that the trial

court abused its discretion in denying his motion for leave without a hearing because

he was unavoidably prevented from timely discovering (1) two affidavits related to

the testimony of a recanting witness and (2) municipal court records showing

another witness allegedly lied at trial regarding the date he performed court-ordered

community service. For the reasons that follow, we affirm.

Factual Background and Procedural History

The facts of this case are summarized in this court’s decision in

Allen’s direct appeal, State v. Allen, 8th Dist. Cuyahoga No. 97014, 2012-Ohio-

1831:

In the early evening of July 17, 2010, five men were socializing in

front of a house located near the intersection of East 123rd Street and

Signet Avenue in Cleveland, Ohio. At approximately 8:30 PM, two men

approached, one armed with an assault rifle, and unleashed a barrage

of gunfire on the assembled men. At the end of the onslaught, two men,

Miley Slaughter and Kenneth Green, were dead. Two others, Timothy

Sisson and Antwon Weems, were wounded, and a fifth man, Willie

Tyson, escaped unharmed.

Id. at ¶ 3.

A Cuyahoga County Grand Jury indicted Allen and Montez Logan on

seven counts as a result of the shootings: two counts of aggravated murder with

course-of-conduct and one- and three-year firearm specifications, three counts of

attempted aggravated murder with one- and three-year firearm specifications and

two counts of having weapons while under disability. Allen and Logan pled not

guilty to the charges, and the case proceeded to a joint jury trial. At trial, the state

presented testimony from over 20 witnesses including two rebuttal witnesses.

The defendants presented testimony from four witnesses including both

defendants.

The State’s Eyewitness Testimony

Two eyewitnesses, Eric Brown and Antwon Weems, identified Allen

as the shooter. Brown testified that, on the evening of July 17, 2010, he was

looking out his front window and saw Slaughter, Green, Sisson, Weems and Tyson

socializing in front of his house. A short time later, Brown heard gunfire, looked

out the window and saw Allen discharging a military-style automatic gun at the

men assembled, who attempted to flee. Brown testified that Slaughter was shot

and fell on his back in the driveway and that Green was shot and was later found

dead in Brown’s backyard. Brown testified that, as Allen was shooting, Logan was

standing close to Allen and was “hyped up,” but did not have a weapon.

Brown stated that he had an unobstructed view of Allen and Logan

from his front window. Although, initially, Brown did not want to be involved in

the police investigation, he later gave statements to police and identified Allen and

Logan in a photo array. Brown also identified both men in the courtroom. Brown

testified that he was “sure” Allen and Logan were the men he saw involved in the

shooting.

Weems testified that after the men heard gunfire, they started

running. Weems was struck in his right foot. He hopped across the grass towards

the driveway and saw Slaughter fall to the ground. Weems stated that as he

attempted to help Slaughter, he could see sparks from gunfire. Weems testified

that he turned around and saw the faces of the assailants. He saw a man (later

identified as Allen) with “a big gun.” He stated that the other man (later identified

as Logan) did not appear to have a weapon.

Weems indicated that he “didn’t know who they was right off” but

that he “recognized their face[s]” and that he never “forgot a face.” He testified

that while he was in the hospital for surgery on his foot, Christopher Perkins

visited him. Although Perkins was not present during the incident, Weems

indicated that Perkins told him the names of the two men who were involved the

shooting. Weems stated that after Perkins “came and told me their names,” it “hit

me that’s who it was.” Weems stated that he had gone to school with Logan and

knew the mother of Allen’s child.

Weems did not initially cooperate with police. He stated that when

he was first questioned by police, he “gave them a story” that was “a complete lie”

because he ”believed [in] another kind of justice at the time.” On May 5 and 6,

2011, after Weems was arrested and charged with several unrelated crimes,

Weems agreed to cooperate and gave additional statements to the police. Weems

identified Allen and Logan as the assailants in a photo array and later in the

courtroom during trial. Weems testified that he was “[p]ositive” Allen and Logan

were the men involved in the shooting. Weems stated that neither the police nor

the assistant prosecuting attorney promised him anything in exchange for his

cooperation.

Tyson testified that he did not see “anyone that was a shooter,” did

not know how many shooters there were and did not see Allen or Logan on the

day of the incident. Sisson testified that he just saw “a glimpse of a light-skin male

holding a rifle” and could “not identify [the shooter] personally.” Detectives

testified that, although Weems told them Perkins had given him Allen and Logan’s

names, they did not attempt to locate or interview Perkins.

Allen’s Defense and the State’s Rebuttal

Allen, Logan, Deandre Allen (Allen’s brother) (“Deandre”) and

Dapolo Green (Deandre’s friend and Kenneth Green’s cousin) (“Dapolo”) testified

that on the day of the shooting, Allen and Logan picked Deandre and Dapolo up

at 118th Street and Kinsman Road, took them to a shoe store located at the

intersection of Lee Road and Harvard Avenue and then drove Deandre and

Dapolo back to Deandre’s home in Garfield Heights. Allen, Logan and Deandre

— witnesses for the defense — testified that this trip took place between

approximately 6:30 p.m. and 8:30 p.m., such that Allen and Logan would not

have had time to travel to East 123rd Street and Signet Avenue, the scene of the

shooting, at the time it occurred.

Dapolo — a rebuttal witness for the state — testified that on July 17,

2010, he had performed court-ordered community service from 8:00 a.m. to 3:00

p.m. before meeting up with Deandre.1 He stated that the trip to the shoe store

1 Deandre also testified regarding Dapolo’s community service. He testified:

Q. * * * How long had you been with Dapolo on Saturday, July 17th?

occurred earlier in the day and that he and Deandre were dropped off at Deandre’s

house at approximately 7:00 p.m.

The jury returned a guilty verdict on all counts. In June 2011, Allen

and Logan were each sentenced to an aggregate prison term of 46 years to life.

This court affirmed Allen’s convictions on direct appeal. Allen, 8th Dist.

Cuyahoga No. 97014, 2012-Ohio-1831. Allen then appealed to the Ohio Supreme

Court. The Ohio Supreme Court declined to accept jurisdiction. State v. Allen,

132 Ohio St.3d 1516, 2012-Ohio-4021, 974 N.E.2d 113. Allen also filed an

application to reopen his appeal pursuant to App.R. 26(B), which was denied.

State v. Allen, 8th Dist. Cuyahoga No. 97014, 2012-Ohio-5709.

On October 17, 2022, more than eleven years after his convictions,

Allen filed a motion for leave to file a motion for a new trial pursuant to Crim.R.

33(A)(6) and (B) (“motion for leave”) and requested a hearing on the motion.

Allen claimed that, in March 2020, he had retained counsel to represent him on

postconviction matters and, “[i]n pursuit of proving his innocence,” had also

retained a private investigator, Tom Pavlish. He further claimed that, as part of

A. That day, well, he was with me all that week but that day we were together

all day.

Q. When you say he had been with you all that week, what do you mean?

A. He had community service to do in Garfield so he was at my house the

whole week.

his investigation, Pavlish contacted Perkins and obtained an affidavit from

Perkins. The affidavit, dated November 26, 2020, stated:

I, Chris Perkins, swear that I voluntarily provided this statement

to Tom Pavlish.

I was not present on July 17, 2010 when Miley Slaughter,

Kenneth Green and Antwon Weems were shot.

I never went to Metro Hospital to visit Antwon.

I never told him that Demetrius Allen or Montez Logan were the

shooters.

I have no idea why he is stating that I did.

No one ever interviewed me about this incident.

Allen asserted that after obtaining Perkins’ affidavit, “it became

evident that Weems would need to be interviewed based on Perkins’ statements.”

He claimed that Pavlish then contacted Weems and obtained an affidavit from

Weems. The affidavit, dated November 5, 2021, stated:

I, Anton Weems, swear that I voluntarily provided this statement

to Tom Pavlish.

I knew Montez Logan & Demetrius Allen from the

neighborhood. I went to school with Montez. I never had problems

with neither men [sic].

I did not see who shot any of us on July 17, 2010. Chris Perkins

NEVER saw me in the hospital.

I only identified Tez & DJ because the prosecutor told me that I

would get probation for [the] case I was locked up on.

They came to interview me before this. I only decided to lie for

me [sic] freedom.

All the information I gave the police was not first hand [sic]

knowledge or what I saw with my [own] eyes.

I deeply apologize for lying. I was just trying to get home.

(Emphasis sic.)

Allen argued that he was “unavoidably prevented” from timely

discovering that Perkins never spoke to Weems at the hospital and Weems never

saw the shooter(s) the night of the incident because (1) Perkins did not testify at

trial and (2) he had no other way to prove Weems had “lied” at trial until Pavlish

obtained Perkins’ affidavit. Allen asserted that Pavlish had been unable to

promptly contact Weems after obtaining Perkins’ affidavit because Weems was

“on the run” from June 2020 to February 2021 and then faced new criminal

charges, which were not resolved until September 7, 2021. Allen asserted that, at

the time he executed his affidavit, Weems was incarcerated and had “nothing to

gain by disclosing that he lied.”

Copies of the affidavits Pavlish obtained from Perkins and Weems

were attached to Allen’s motion for leave. No other evidence was submitted in

support of the motion.2 The state opposed the motion for leave.

On April 27, 2023, Allen filed a “supplemental motion for leave to

file motion for new trial,” providing “additional evidence in support of his motion

for leave.” Allen claimed that he had discovered new evidence establishing that

Dapolo had “lied” when he testified that he had performed community service on

July 17, 2010. Allen claimed that records obtained from the Garfield Heights

Municipal Court showed that Dapolo actually completed his community service

on August 7, 2010, not July 17, 2010, and that “[e]vidence establishing that

[Dapolo] was lying about his community services was material and would have

been relevant for defense counsel during cross-examination.” Allen argued that

2 Allen did not provide an affidavit from himself or Pavlish supporting his

assertions regarding the timing of, and circumstances surrounding, the acquisition of

Perkins’ and Weems’ affidavits.

he should be permitted to file a motion for a new trial based on this evidence (in

addition to the Perkins and Weems affidavits) because he had been “unaware of

the fact that evidence existed establishing [Dapolo’s] deceptions,” the state did

not produce this evidence prior to Allen’s convictions and “[d]efendants are ‘not

required to show that [they] could not have discovered suppressed evidence by

exercising reasonable diligence,’” quoting State v. Bethel, 167 Ohio St.3d 362,

2022-Ohio-783, 192 N.E.3d 470, ¶ 24-25. In support of his motion, Allen

attached copies of (1) a judgment entry in Garfield Heights Municipal Court Case

Nos. TRD 100379 (“TRD 100379”) and CRB 1001331 (“CRB 1001331”), dated

June 23, 2010, sentencing Dapolo to a 30-day suspended jail sentence and three

months of active community-control sanctions after he pled no contest to one

count of pedestrian in the road (in TRD 100379) and one count of possession of

marijuana (in CRB 1001331),3 (2) a notice of community service in TRD 100379,

dated July 26, 2010, indicating that Dapolo had been ordered to perform eight

hours of community service on August 7, 2010, at 9:00 a.m. and (3) a journal

entry in TRD 100379, dated August 9, 2010, terminating Dapolo’s probation and

indicating that “Defendant has completed community service with the Garfield

Heights Police Department.” The date on which Dapolo completed community

3 In his supplemental motion for leave, Allen asserted that, as part of its June 23,

2010 order, the Garfield Heights Municipal Court ordered Dapolo to serve eight hours of

community service. However, the copy of the order that is in the record is of poor quality

and that portion of the order is illegible. The copies of the documents Allen attached to

his motion were not certified copies.

service was not identified in the entry. No other evidence was submitted in

support of the supplemental motion for leave.

On May 1, 2023, the trial court summarily denied Allen’s motion for

leave to file a motion for a new trial.

Allen appealed, raising the following sole assignment of error for

review:

The trial court abused its discretion in denying Mr. Allen’s Motion for

Leave to File a Motion for New Trial.

Law and Analysis

Motion for Leave to File Motion for a New Trial under Crim.R. 33

Crim.R. 33(A)(6) allows a trial court to grant a new trial where “new

evidence material to the defense is discovered which the defendant could not with

reasonable diligence have discovered and produced at the trial” and the

defendant’s “substantial rights” are “materially” “affect[ed].” A defendant whose

case was tried to a jury must file a motion for a new trial based on newly

discovered evidence within 120 days after the jury’s verdict; otherwise, leave of

court to file a motion for new trial must be sought and granted. To obtain leave

to file an untimely motion for a new trial, the defendant must show “by clear and

convincing proof” that he or she was “unavoidably prevented” from discovering

the evidence and filing a timely motion for a new trial within the 120-day period.

Crim.R. 33(B).

“Clear and convincing” evidence is that “measure or degree of proof”

that “produce[s] in the mind of the trier of facts a firm belief or conviction as to

the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d

118 (1954), paragraph three of the syllabus. “It is intermediate, being more than

a mere preponderance, but not to the extent of such certainty as is required

beyond a reasonable doubt as in criminal cases. It does not mean clear and

unequivocal.” (Emphasis deleted.) Id. at 477.

When a defendant seeks leave to file a motion for a new trial under

Crim.R. 33(B), the merits of the new-trial claim are not before the trial court

unless, and until, it grants the motion for leave and the trial court, therefore, may

not consider the merits of a proposed motion for a new trial unless, and until, it

grants the motion for leave. State v. Hatton, 169 Ohio St.3d 446, 2022-Ohio-

3991, 205 N.E.3d 513, ¶ 30, 33; Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192

N.E.3d 470, at ¶ 41. The sole question before the trial court when considering

whether to grant a motion for leave based on newly discovered evidence is

whether the defendant has established by clear and convincing proof that he or

she was unavoidably prevented from discovering the evidence at issue within the

time frame provided, e.g., within 120 days of the jury’s verdict. Hatton at ¶ 30;

State v. Hale, 8th Dist. Cuyahoga No. 112163, 2023-Ohio-3894, ¶ 20. A

defendant’s “mere allegation” that he or she was unavoidably prevented from

discovering the evidence he or she seeks to introduce to support a new trial does

not meet that burden. State v. McFarland, 8th Dist. Cuyahoga No. 111390, 2022-

Ohio-4638, ¶ 17; State v. Hubbard, 8th Dist. Cuyahoga No. 108853, 2020-Ohio-

2726, ¶ 29; State v. Cowan, 8th Dist. Cuyahoga No. 108394, 2020-Ohio-666, ¶ 10.

A defendant is entitled to a hearing on a motion for leave to file an

untimely motion for a new trial only if the defendant submits documents that “on

their face” support his or her claim that he or she was unavoidably prevented from

timely discovering the grounds for the motion. See, e.g., State v. McAlpin, 8th

Dist. Cuyahoga No. 110811, 2023-Ohio-4794, ¶ 29; McFarland at ¶ 28; State v.

Dues, 8th Dist. Cuyahoga No. 105388, 2017-Ohio-6983, ¶ 12; State v.

Ambartsoumov, 10th Dist. Franklin Nos. 12AP-877 and 12AP-878, 2013-Ohio-

3011, ¶ 13 (motion for leave to file motion for new trial may be summarily denied

where neither the motion nor its supporting affidavits “‘embody prima facie

evidence of unavoidable delay’”), quoting State v. Peals, 6th Dist. Lucas No. L-10-

1035, 2010-Ohio-5893, ¶ 22; State v. Martin, 8th Dist. Cuyahoga No. 110549,

2022-Ohio-1494, ¶ 36-37 (defendant who submitted evidence that on its face

showed he was unavoidably prevented from discovering and presenting evidence

sooner was entitled to a hearing on motion for leave to file motion for new trial).

Standard of Review

We review both a trial court’s decision on a motion for leave to file

an untimely motion for a new trial and a trial court’s decision whether to hold an

evidentiary hearing on a motion for leave for abuse of discretion. Hatton at ¶ 29;

McAlpin at ¶ 29, citing State v. Cannon, 8th Dist. Cuyahoga No. 103298, 2016-

Ohio-3173, ¶ 16; Hale at ¶ 17.

A court abuses its discretion “when a legal rule entrusts a decision

to a judge’s discretion and the judge’s exercise of that discretion is outside of the

legally permissible range of choices.” State v. Hackett, 164 Ohio St.3d 74, 2020-

Ohio-6699, 172 N.E.3d 75, ¶ 19; see also Johnson v. Abdullah, 166 Ohio St.3d 427,

2021-Ohio-3304, 187 N.E.3d 463, ¶ 35 (describing the “common understanding

of what constitutes an abuse of discretion” as “a court exercising its judgment, in

an unwarranted way, in regard to a matter over which it has discretionary

authority”). A decision is an abuse of discretion when it is unreasonable, arbitrary

or unconscionable. See, e.g., State v. Brusiter, 8th Dist. Cuyahoga No. 112410,

2023-Ohio-3794, ¶ 10; McAlpin at ¶ 30; Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983). A decision is “unreasonable” “‘if there is no

sound reasoning process that would support that decision.’” State v. Ford, 158

Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 106, quoting AAAA Ents. v.

River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

N.E.2d 597 (1990). An “arbitrary” decision is “made ‘without consideration of or

regard for facts [or] circumstances.’” State v. Beasley, 152 Ohio St.3d 470, 2018-

Ohio-16, 97 N.E.3d 474, ¶ 12, quoting Black’s Law Dictionary 125 (10th Ed.2014).

When applying an abuse-of-discretion standard, this court may not substitute its

judgment for that of the trial court. McFarland at ¶ 21.

A defendant may make the required showing that he or she was

“unavoidably prevented” from filing a timely motion for a new trial based on new

evidence by demonstrating that he or she was previously unaware of the evidence

on which the motion relies and could not have discovered it within the required

time by exercising reasonable diligence. State v. Johnson, Slip Opinion No. 2024-

Ohio-134, ¶ 18; Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, at

¶ 21; McFarland at ¶ 16.

A defendant may also make the required showing by establishing

that the prosecution suppressed the evidence at issue. Bethel at ¶ 25 (“[W]hen a

defendant seeks to assert a Brady claim in an untimely or successive petition for

postconviction relief, the defendant satisfies the ‘unavoidably prevented’

requirement contained in R.C. 2953.23(A)(1)(a) by establishing that the

prosecution suppressed the evidence on which the defendant relies.”); Johnson at

¶ 16, 18 (a petitioner who files an untimely or successive petition for

postconviction relief may show that he or she was unavoidably prevented from

discovering the evidence on which the petition relies “by establishing a violation

under [Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)]”);

State v. McNeal, 169 Ohio St.3d 47, 2022-Ohio-2703, 201 N.E.3d 861, ¶ 17 (“[A]

defendant may satisfy the ‘unavoidably prevented’ requirement contained in

Crim.R. 33(B) by establishing that the prosecution suppressed the evidence on

which the defendant would rely in seeking a new trial.”).

Allen has not claimed a Brady violation or that the state otherwise

suppressed the evidence at issue. Accordingly, to warrant a hearing on his motion

for leave, he needed to submit documents with his motion for leave that, on their

face, supported his claim that he was previously unaware of the evidence at issue

and could not have discovered it within the required time by exercising reasonable

diligence. After careful consideration of the record before us, we cannot say that

the trial court abused its discretion in concluding that Allen did not meet his

burden here.

Affidavits from Perkins and Weems

With respect to the Perkins and Weems affidavits, Allen argues that

(1) because Perkins did not testify at trial, Allen did not become aware of Perkins’

statement until Perkins spoke with Pavlish, (2) it was Pavlish’s conversation with

Perkins that led Pavlish to speak with Weems and (3) Allen had “absolutely no

control over when individuals were willing to provide affidavits” and could only

“deal with witnesses as they are available to him” once they “have decided to

provide affidavits,” he established, by clear and convincing evidence, that he was

“unavoidably prevented from discovering the affidavits of Mr. Perkins and Mr.

Weems within the pr[e]scribed 120-day period.” We disagree.

In Johnson, Slip Opinion No. 2024-Ohio-134, the Ohio Supreme

Court considered what evidence a petitioner needs in order to establish, for

purposes of an untimely or successive petition for postconviction relief under R.C.

2953.23(A)(1), that he or she was “unavoidably prevented” from discovering facts

involving a recanting witness. The court rejected the argument that an affidavit

from a recanting witness, dated after the statutory deadline for filing a timely

petition, was, in and of itself, sufficient to establish that a defendant was

unavoidably prevented from timely submitting the evidence. The court

explained:

R.C. 2953.23(A)(1)(a) requires a petitioner to show that he was

“unavoidably prevented” — not merely “prevented” — from discovering

the facts on which he would rely. (Emphasis added.) “Unavoidable”

means “not avoidable” or “inevitable.” Merriam-Webster’s Collegiate

Dictionary 1360 (11th Ed.2003). And something is “inevitable” if it is

“incapable of being avoided or evaded.” Id. at 638. Keeping in mind

that R.C. 2953.23 means what it says, a petitioner filing an untimely

postconviction petition must show that any delay in discovering the

facts undergirding the petition was “incapable of being avoided or

evaded,” Merriam-Webster’s Collegiate Dictionary at 638.

The light that an affidavit’s date sheds on that issue is dim, at

best. A date merely reveals when the affidavit was executed or

provided, not when the testimony it contains became available.

Without an explanation of how the recantation was discovered, the

information essential to the R.C. 2953.23 inquiry remains cloaked in

darkness. It is this type of information that bears on the petitioner’s

ability to avoid delay in discovering recanted testimony. * * *

Accepting an affidavit’s date as prima facie evidence satisfying

the strictures of R.C. 2953.23(A)(1)(a) would effectively eliminate the

word “unavoidably” from the statute. Thus, we hold that R.C.

2953.23(A)(1)(a) requires a petitioner to submit evidence of specific

facts beyond the supporting affidavit’s date to explain why the

petitioner was unable to timely obtain an affidavit from the recanting

witness.

Johnson at ¶ 24-25, 27.

The court also rejected the argument that questions concerning the

reasons for a recanting witness affidavit, the timing of a recanting witness

affidavit and efforts to discover a recantation must be explored at a hearing:

[T]he petitioner bears the burden of proving that he was unavoidably

prevented from discovering the evidence on which he must rely * * * .

Therefore, it is the petitioner’s duty to present sufficient evidence to

carry that burden at the time he files the petition. And there is no

practical reason why a hearing might be necessary for the petitioner to

satisfy this burden. If testimony can be elicited at a hearing, it can be

attested to in an affidavit. We therefore reject Johnson’s argument that

regardless of the circumstances, a hearing is required whenever a

petitioner produces an affidavit from a witness recanting the witness’s

testimony.

Johnson at ¶ 26.

In Johnson, the only evidence the petitioner, Johnson, had

submitted in support of his postconviction petition was an affidavit from the

recanting witness, the victim. Id. at ¶ 28. In his affidavit, the victim detailed his

“doubts” about his trial testimony, his limited recollection of his assailant and his

concern that he had improperly identified Johnson as his attacker. Id. at ¶ 7. He

also explained that he had “felt pressured by [a police detective] to * * * testify

against [Johnson] even though [he] wasn’t sure [Johnson] was the person who

committed these crimes against [him].” Id. Although Johnson asserted in his

petition, “in conclusory fashion,” that the information in the affidavit “was not

available to [him] until this time” and “was not discoverable by him until [the

recanting witness] presented it,” the affidavit did not state this. Id. at ¶ 29. The

affidavit contained no information about when or how Johnson learned of the

victim’s misgivings regarding his identification of Johnson, who contacted whom,

when such contact occurred or any other information “about whether Johnson

had been prevented, unavoidably or otherwise, from timely discovering [the

victim’s] uncertainties about his identification of Johnson.” Id. at ¶ 28-29.

Further, the victim claimed in his affidavit that he had “spent the past seven years

thinking about [his] testimony” and that he had daily “felt an incredible weight on

[his] shoulders” because he believed he did not identify the right person. Id. at

¶ 29. Under such circumstances, the court held that Johnson “did not carry his

burden” of showing that he was “unavoidably prevented” from discovering the

recantation within the statutory deadline. Id. at ¶ 8-30, 35.4

Because “‘the “unavoidably prevented” requirement in Crim.R.

33(B) mirrors the “unavoidably prevented” requirement in R.C. 2953.23(A)(1),’”

we must apply the same analysis when determining whether Allen met his burden

here. Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, at ¶ 59, quoting

State v. Barnes, 5th Dist. Muskingum No. CT2017-0092, 2018-Ohio-1585, ¶ 28;