State of Ohio, Plaintiff-Appellee, v. Christopher E. Cashin, Defendant-Appellant.
No. 17AP-338 (C.P.C. No. 08CR-3899)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
December 28, 2017
[Cite as State v. Cashin, 2017-Ohio-9289.]
KLATT, J.
(REGULAR CALENDAR)
Rendered on December 28, 2017
On brief: Ron O‘Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee. Argued: Steven L. Taylor.
On brief: The Law Office of Eric J. Allen, Ltd., and Eric J. Allen, for appellant. Argued: Eric J. Allen.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{1} Defendant-appellant, Christopher E. Cashin, appeals a judgment of the Franklin County Court of Common Pleas that denied his motion for leave to file a delayed motion for a new trial. For the following reasons, we affirm that judgment.
{2} On February 27, 2009, a jury found Cashin guilty of one count of kidnapping, one count of rape, two counts of gross sexual imposition, and one count of felonious assault. The trial court sentenced Cashin to 25 years to life imprisonment.
{3} Cashin was convicted for sexually abusing P.B., who was then ten years old, on the night of April 19 and 20, 2008. On that night, P.B. slept at the home of his
{4} The next day, P.B. told his mother, T.B., what had happened. T.B. called the Columbus Police Department. A Columbus police officer spoke with P.B. about the incident, and P.B. was taken to Nationwide Children‘s Hospital for an examination. During that examination, a nurse took a swab from P.B.‘s neck because P.B. had told her that Cashin had licked him there. The swab tested positive for the presence of saliva. The major donor to the sample matched P.B.‘s DNA, and the minor donor matched Cashin‘s DNA.
{5} After Cashin was convicted, he appealed the judgment against him to this court. We affirmed that judgment. See State v. Cashin, 10th Dist. No. 09AP-367, 2009-Ohio-6419.
{6} On July 19, 2016, Cashin filed two motions before the trial court: a motion for leave to file a delayed motion for a new trial and a motion for a new trial. In his motions, Cashin contended that he had recently discovered evidence that warranted a new trial. Cashin‘s newly discovered evidence consisted of the affidavit testimony of three different witnesses.
{7} In the first affidavit, John Midlick, the brother of T.B. and Joseph Midlick, testified that T.B. is controlling, homophobic, obsessed with money, a thief, and a habitual liar. John Midlick also stated that T.B. has falsely accused him and his brothers, James and Jeff Midlick, of physically and/or sexually abusing P.B. According to John Midlick, T.B. would allege abuse against anyone who threatened her inheritance of Joseph Midlick‘s estate. Finally, John Midlick represented that P.B. would do anything to please T.B., including making false allegations against someone his mother perceived as a threat.
{8} In the second affidavit, Jeff Midlick, the brother of T.B., Joseph Midlick, and John Midlick, testified that T.B. had falsely alleged in a probate court proceeding that their mother, Helen Midlick, had abused P.B. Like his brother, Jeff Midlick also stated that (1) T.B. had falsely accused P.B.‘s uncles, including him, of physically and/or sexually
{9} In the third affidavit, Debra Mullen, a friend of T.B. and an acquaintance of Cashin, testified that T.B. is controlling, homophobic, obsessed with money, and a habitual liar. Mullen also stated that P.B. would do anything to make his mother happy, including making false accusations against someone T.B. perceived as a threat.
{10} In addition to the three witnesses’ affidavits, Cashin submitted his own affidavit to the trial court. Cashin stated that he “had no idea” that T.B. had falsely accused John, Jeff, James, and Helen Midlick of abusing P.B. (Cashin Aff. at ¶ 6-8.) Cashin‘s affidavit also included the following averments:
13. Affiant states that he has done everything possible to procure this information since his conviction in 2009.
14. Affiant states that the affiants were unwilling to testify on his behalf and have been unwilling since 2009.
(Cashin Aff. at ¶ 13-14.)
{11} In a judgment issued April 10, 2017, the trial court denied Cashin‘s motion for leave to file a delayed motion for a new trial. The trial court found that Cashin was not unavoidably prevented from discovering the evidence in the three witnesses’ affidavits within the 120-day period provided by
{12} Cashin now appeals the trial court‘s judgment, and he assigns the following error:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT OVERRULED APPELLANT‘S MOTION FOR LEAVE TO FILE A MOTION FOR A NEW TRIAL.
{14} We now turn to the merits of Cashin‘s argument that the trial court erred in denying his motion for leave to file a delayed motion for a new trial. Pursuant to
[i]f it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely, such motion shall be filed within seven days from an order of the court finding that he was unavoidably prevented from discovering the evidence within the one hundred twenty day period.
Id.
{15} Thus, where a defendant misses filing within the 120-day period,
“(1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence.”
State v. Hawkins, 66 Ohio St.3d 339, 350 (1993), quoting State v. Petro, 148 Ohio St. 505 (1947), syllabus.
{16} A defendant is unavoidably prevented from filing a motion for a new trial if he “had no knowledge of the existence of the ground supporting the motion for new trial and could not have learned of the existence of that ground within the time prescribed for filing the motion for new trial in the exercise of reasonable diligence.” State v. Walden, 19 Ohio App.3d 141, 146 (10th Dist.1984). Given the defendant‘s obligation to exercise reasonable diligence, the defendant cannot claim that evidence was undiscoverable simply because no one made efforts to obtain the evidence sooner. Graggs at ¶ 15; Noor at ¶ 17; State v. Anderson, 10th Dist. No. 12AP-133, 2012-Ohio-4733, ¶ 14. In other words, a defendant cannot demonstrate that he was unavoidably prevented from discovering new evidence when he could have discovered that evidence earlier had he exercised reasonable diligence and effort. State v. Lenoir, 2d Dist. No. 26846, 2016-Ohio-4981, ¶ 24.
{17} To allow the trial court to gauge the defendant‘s diligence, the defendant must describe all investigative actions undertaken within the 120-day period for timely filing a
{19} Appellate courts apply an abuse-of-discretion standard in reviewing a trial court‘s denial of a motion for leave to file a delayed motion for a new trial. Anderson at ¶ 9. An abuse of discretion is more than an error of law or judgment; it implies that a trial court‘s decision was unreasonable, arbitrary, or unconscionable. State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶ 91. An appellate court may not determine that a trial court abused its discretion simply because the appellate court might not have reached the same conclusion. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 14.
{20} Here, a jury found Cashin guilty on February 27, 2009. Cashin sought a new trial based on newly discovered evidence over seven years later, on July 19, 2016. Cashin, therefore, clearly missed the 120-day deadline. Consequently, to secure court review of his motion for a new trial, Cashin had to establish that he was unavoidably prevented from discovering the evidence contained in the affidavits of John Midlick, Jeff Midlick, and Mullen. To accomplish this, Cashin testified in his affidavit that he did not know about the false abuse allegations that T.B. had leveled against her family members. Additionally, Cashin stated that he did “everything possible” to procure the witnesses’ testimony, but the witnesses have been unwilling to provide their testimony since 2009. (Cashin Aff. at ¶ 13-14.)
{21} Cashin‘s statement that he did everything possible to obtain the witnesses’ testimony is a conclusory allegation devoid of the detail needed to determine whether Cashin exercised reasonable diligence. Without a description of the actions undertaken to obtain the witnesses’ testimony, a court cannot determine whether it agrees with Cashin‘s own assessment of his efforts. Thus, Cashin‘s statement that he did everything possible does not prove that Cashin acted with reasonable diligence.
{23} Because Cashin failed to prove that he was unavoidably prevented from discovering the evidence he relies upon as a basis for his motion for a new trial, the trial court did not err in denying his motion for leave. Accordingly, we overrule Cashin‘s sole assignment of error, and we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN and HORTON, JJ., concur.