State v. Risden, 2013 Ohio 1823

Risden convicted in 2008 of Tampering with Evidence, Failure to Stop After an Accident, and two counts each of Aggravated Vehicular Assault and Aggravated Vehicular Homicide; injury to a pedestrian who died six weeks later.
Risden sought a delayed new-trial motion under Crim.R. 33 based on allegedly newly discovered evidence—a March 15, 2011 anonymous letter alleging back-paging of documents used in the investigation.
The trial court overruled the motion for leave to file a delayed motion for new trial without an evidentiary hearing, finding the letter not credible.
State moved for summary judgment under post-conviction relief procedures; Risden opposed.
On appeal, Risden argued trial court abused discretion and failed to rule on the State’s summary-judgment motion; the court affirmed, concluding no abuse and that the summary-judgment issue was resolved.
The appellate court held the anonymous letter lacked credibility, Risden failed to prove unavoidably prevented discovery by clear and convincing evidence, and the trial court did rule on the related summary-judgment matter.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court abused discretion in overruling leave for a delayed motion for new trial	Risden asserts lack of evidentiary hearing harmed defense	State contends evidence not credible; no hearing needed	No abuse; credibility issue resolved without hearing
Whether the alleged new evidence was credible and warranted relief	Letter shows back-paged documents; warrants new trial	Letter lacks details and signatures; not credible	Credibility lacking; no new-trial relief
Whether the trial court properly ruled on the State’s summary-judgment motion	Court failed to rule on summary judgment	Court addressed pleadings related to the motion	Court did rule; no error in disposition

State v. Lanier, 2010-Ohio-2921 (2d Dist. Clark No. 2009 CA 84 (2010)) (abuse-of-discretion standard; Crim.R. 33(B) timing and leave requirements)
State v. Parker, 178 Ohio App.3d 574 (2d Dist. Greene (2008)) (new evidence must be credible and timely demonstrated)
State v. Warwick, 2002-Ohio-3649 (2d Dist. Champaign No. 01CA33) (unavoidably prevented from timely filing requires clear and convincing proof)
State v. York, 2001 WL 332019 (2d Dist. Greene (2001)) (two-step procedure for delayed motions for new trial)
State v. Beavers, 2009-Ohio-5604 (2d Dist. Montgomery No. 22588) (credibility and good-faith requirements for newly discovered evidence)
State v. Martin, 2005-Ohio-209 (2d Dist. Montgomery No. 20383) (credibility of new evidence; trial court’s evaluation role)
State v. DeHass, 10 Ohio St.2d 230 (1967) (establishing credibility determinations are primarily for trial court)
State v. Walden, 19 Ohio App.3d 141 (10th Dist. (1984)) (unavoidably prevented standard; reasonable diligence requirement)
State v. Wilson, 2009-Ohio-7035 (2d Dist. Montgomery No. 23247) (unavoidably prevented standard applied to delay)
State v. McConnell, 2011-Ohio-5555 (2d Dist. Montgomery No. 24315) (requirements of clear and convincing proof of delay)
State v. Schiebel, 55 Ohio St.3d 71 (1990) (definition of clear and convincing evidence)