State v. Buell, 2018 Ohio 1350

Lisa Buell was convicted by a jury of patient abuse for allegedly striking a disabled patient; a witness testified he saw Buell hit the patient through an open window.
Buell argued at trial the witness could not have seen through the window because it was obstructed by a Christmas tree and sprayed fake snow; this court affirmed the conviction on direct appeal.
About a year after her appeal, Buell filed a timely motion for a new trial based on newly discovered evidence; the trial court granted leave, held a hearing, and denied the motion (no appeal from that denial).
Six months later Buell filed a second, untimely motion for a new trial alleging additional newly discovered evidence (witness bias against lesbians) but did not seek leave to file out of time; the trial court denied it without an evidentiary hearing.
Buell appealed the denial of her second motion, arguing the court erred by refusing an evidentiary hearing and by denying the motion on its merits.
The appellate court affirmed: the motion was untimely, Buell failed to show she was unavoidably prevented from discovering the alleged bias, and the alleged bias would not likely change the verdict given corroborating evidence (victim behavior and photographs).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court erred by denying second motion for new trial without hearing	State: court properly denied untimely motion and was not required to hold a hearing	Buell: court should have held an evidentiary hearing on newly discovered evidence (witness bias)	No error — denial affirmed; no abuse of discretion in deciding without hearing
Whether alleged newly discovered bias was unavailable before trial under Crim.R. 33(B)	State: evidence was discoverable before trial; Buell knew of it and did not show unavoidable prevention	Buell: did not discover extent of bias until after appeal; bias would justify new trial	Held for State — Buell knew of the bias before trial and cannot show unavoidable prevention
Whether alleged new evidence would likely change the verdict (Crim.R. 33(A)(6))	State: witness testimony was corroborated by victim behavior and photos; bias would not create strong probability of different result	Buell: witness bias against lesbians would undermine credibility and likely change outcome	Held for State — evidence was not likely to produce different verdict; mostly impeaching and cumulative
Whether untimely filing without leave bars relief	State: motion filed long after 120-day rule and no leave sought; court acted within discretion	Buell: court should excuse untimeliness and reach merits	Held for State — untimely and no clear-and-convincing showing of unavoidable prevention; denial appropriate

State v. Filiaggi, 86 Ohio St.3d 230 (Ohio 1999) (standard of review for new-trial motions and abuse-of-discretion explained)
State v. Petro, 148 Ohio St. 505 (Ohio 1947) (elements for newly discovered evidence required to grant a new trial)