State v. Cashin
2017 Ohio 9289
Ohio Ct. App.2017Background
- Christopher Cashin was convicted by a jury in 2009 of kidnapping, rape, two counts of gross sexual imposition, and felonious assault for sexually abusing a 10‑year‑old (P.B.) and sentenced to 25 years to life. The convictions were affirmed on direct appeal.
- In July 2016 (over seven years after conviction), Cashin moved for leave to file a delayed Crim.R. 33 new‑trial motion, attaching four affidavits: three witnesses (two Midlick brothers and a family friend) who accused the victim’s mother (T.B.) of habitually lying and fabricating abuse allegations, and Cashin’s own affidavit claiming he only recently learned of those alleged false accusations and had tried unsuccessfully to procure witness testimony since 2009.
- The trial court denied leave to file the delayed new‑trial motion, finding Cashin failed to show by clear and convincing evidence that he was unavoidably prevented from discovering the proffered evidence within Crim.R. 33’s 120‑day filing period.
- The denial of leave mooted the substantive new‑trial motion; Cashin appealed, arguing the court abused its discretion in refusing leave to file a delayed motion for a new trial.
- The Court of Appeals analyzed Crim.R. 33(B)’s two‑step delayed‑filing framework, the standard for being “unavoidably prevented,” and the requirement that a movant detail investigative steps taken within the 120‑day window.
- The court affirmed, holding Cashin’s conclusory claim that he had done “everything possible” and that witnesses were unwilling to testify did not constitute clear and convincing evidence of unavoidable prevention because he failed to describe or corroborate efforts demonstrating reasonable diligence.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Cashin) | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in denying Cashin’s motion for leave to file a delayed Crim.R. 33 new‑trial motion | The court correctly treated the motion under Crim.R. 33(B); Cashin failed to show he was unavoidably prevented from discovering the new evidence within 120 days and thus leave was properly denied | Cashin argued he only recently discovered evidence (affidavits showing the victim’s mother fabricated allegations) and had been unable to procure witness affidavits earlier despite doing “everything possible,” warranting leave to file a delayed new‑trial motion | Affirmed: Cashin failed to prove by clear and convincing evidence that he was unavoidably prevented; his conclusory assertions about efforts to obtain affidavits were insufficient to establish reasonable diligence |
Key Cases Cited
- State v. Hawkins, 66 Ohio St.3d 339 (Ohio 1993) (sets six‑part test for newly discovered evidence under Crim.R. 33)
- State v. Petro, 148 Ohio St. 505 (Ohio 1947) (original articulation of newly discovered evidence standard)
- State v. Schiebel, 55 Ohio St.3d 71 (Ohio 1990) (defines clear and convincing evidence standard)
- Cross v. Ledford, 161 Ohio St. 469 (Ohio 1954) (classic formulation of clear and convincing proof standard)
- State v. Thompson, 141 Ohio St.3d 254 (Ohio 2014) (abuse‑of‑discretion standard explained)
- State v. Morris, 132 Ohio St.3d 337 (Ohio 2012) (appellate review of discretionary rulings; not reversible merely because an appellate court might decide differently)