State v. Gray, 2019 Ohio 1638

In 2008 Ramon Gray was convicted of two counts of aggravated murder and a weapons-under-disability count; sentenced to life without parole. Fingerprints matching Ramon were lifted from above the rear passenger door of the victim’s car and an eyewitness (Eddie Parker) identified Ramon in a lineup.
Ramon’s convictions were previously affirmed on direct appeal; a postconviction petition filed in 2009 was denied as untimely and barred by res judicata.
In December 2017 Ramon moved for leave to file a delayed motion for a new trial based on newly discovered evidence: affidavits from Ramon, his brother Rufus, and inmate Curtis Davis claiming a fourth, previously unidentified shooter was present and that Ramon did not fire the fatal shots.
Davis later averred (from the same prison) that he was the unidentified fourth man and would have exculpated Ramon but kept a low profile and was difficult to locate earlier.
The trial court held a hearing and denied leave to file the delayed new-trial motion, finding the affidavits were self-serving, inconsistent with forensic evidence (fingerprints and shooting location), defense did not show diligent efforts to discover Davis earlier, and Ramon did not file within a reasonable time after learning of Davis.
Ramon appealed the denial; the appellate court reviewed for abuse of discretion and affirmed the trial court’s denial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court abused its discretion in denying leave to file a delayed motion for new trial based on newly discovered evidence	State: Ramon failed to prove by clear and convincing evidence he was unavoidably prevented from discovering the alibi/evidence within 120 days; affidavits are self‑serving and conflict with forensic/eyewitness evidence; delay after Davis’s availability was unreasonable	Gray: New affidavits identify a previously unknown fourth participant (Davis) who would have testified Ramon did not possess or fire the gun; defense could not have discovered Davis earlier despite reasonable diligence	Affirmed: Court found no clear-and-convincing proof of unavoidable prevention or reasonable promptness; affidavits lacked credibility and conflicted with fingerprint and forensic evidence; denial was not an abuse of discretion

State v. Sutton, 73 N.E.3d 981 (8th Dist.) (abuse-of-discretion standard for denial of leave to file delayed new-trial motion)
Walden v. State, 19 Ohio App.3d 141 (10th Dist.) (discussing bifurcated Crim.R. 33(B) procedure for delayed new-trial motions)
Cross v. Ledford, 120 N.E.2d 118 (Ohio 1954) (definition of clear-and-convincing evidence)
State v. Glover, 64 N.E.3d 442 (8th Dist.) (trial court must grant leave if affidavits clearly and convincingly show unavoidable prevention)