[Cite as State v. Walker,
2016-Ohio-7314.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
STEVEN WALKER : Case No. 2016CA00076
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No. 2015-
CR-1118
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 11, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO NICHOLAS SWYRYDENKO
Prosecuting Attorney P.O. Box 3952
Cuyahoga Falls, Ohio 44223
By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2016CA00076 2
Baldwin, J.
{¶1} Defendant-appellant Steven Walker appeals from the March 14, 2016
Judgment Entry of the Stark County Court of Common Pleas denying his Application for
Leave to File a Delayed Motion for New Trial. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} The relevant facts, as taken, in relevant part, from this Court’s Opinion in
State v. Stevens, 5th Dist. Stark No. 2005-CA-00286, 2006-Ohio-6240, are as follows.
{¶3} Michael Cheek, Aubrey Williams, and Julius Edwards were longtime friends
and also members of a Canton gang known as the “Northwest Shorb Block.” On July 29,
2005, the three were hanging out with a fourth man, William Friedman, who was Cheek's
cousin. The four spent the day together and were drinking when they made plans to go
to a Canton bar called Brick City.
{¶4} Williams drove the four in a Buick Regal car belonging to Michael Cheek's
mother. They decided to go to the Hall of Fame Fuel Mart to buy new t-shirts before they
went to the bar. The Hall of Fame Fuel Mart is located at 704 Sherrick Road S.E., Canton.
Aubrey Williams waited in the car, and the other three entered the store.
{¶5} The City of Canton is divided into roughly four gang “territories.” The
northwest part of the city is known as the territory of “Northwest Shorb Block.” The
northeast quadrant is known as the-home of the “Crypts” (sic). The southwest and
southeast portions of the city are “Rated,” or “Rated R,” territory. The Hall of Fame Fuel
Mart is located in what is considered to be “Rated” territory.
{¶6} Inside the store, Michael Cheek, Julius Edwards, and William Friedman
encountered appellant Steven Walker. Appellant was at one of the store's two cash
Stark County, Case No. 2016CA00076 3
registers, arguing with clerk Hussin Almuzerwi over the price of a shirt. A verbal
confrontation ensued between appellant and Cheek's group. In the words of Julius
Edwards, “We got out of the car and go in the store, we see Stevie, you know, in there
hollering, talking about Rated.” (1T. at 209). In Edwards' estimation, appellant was “letting
it be known” that he was “Rated, flat-out.”
{¶7} The group selected and paid for their t-shirts as the verbal back-and-forth
with appellant continued. The tension escalated. Edwards described appellant as
relentlessly baiting the three: “he's still walking up on it.” (1T. at 211). At this point, Michael
Cheek had enough and told Edwards that he was going to hit appellant. Cheek
proceeded to strike appellant, knocking him into a candy rack. Appellant fell to the ground.
{¶8} Cheek, Friedman, and Edwards hurried out of the store. Edwards looked
back at appellant and saw him reaching for something. Clerk Hussin Almuzerwi also saw
appellant reach for something at his waist. Julius Edwards described what he saw as a
“burner,” a gun or pistol. Cheek, Edwards, and Friedman took off running. Cheek ran in
the direction of the Southeast Community Center, and Edwards and Friedman ran toward
the car. (1T. at 211).
{¶9} Julius Edwards testified that appellant ran out of the store “with the burner
already out” and fired at least four to five times at Michael Cheek as he fled. Cheek fell to
the ground. Appellant pointed the gun at Edwards and Friedman; Edwards said that the
gun “clicked.” Appellant got into his own car and left the scene. (1 T. at 211; 213-215;
218).
{¶10} Edwards admitted that he is a member of the Shorb Block gang but claimed
that Williams, Cheek, and Friedman were not. He also claimed not to know whether
Stark County, Case No. 2016CA00076 4
appellant was affiliated with any gang. Julius Edwards did identify appellant as the
shooter. He stated that appellant had people “with” him, presumably in his car. (1T. at
215; 216-217). Edwards also testified that no one in Michael Cheek's group that night
had a gun.
{¶11} Aubrey Williams watched the shooting from the driver's seat of the car.
Cheek, Friedman, and Edwards had been in the store only about five minutes when
Cheek came running out and turned left. He was followed by Edwards and then Friedman,
who turned right, toward the car. Williams saw appellant come out after the group, pointing
a gun at Cheek.
{¶12} Cheek got about fifteen or twenty feet from the door of the store when
appellant fired the gun and Cheek dropped to the ground. Williams recalled that appellant
fired the gun more than once but he was not sure how many times. Williams saw appellant
get into a black Taurus and drive away. Williams testified that no one in the Buick Regal
that night had a gun. He identified appellant as the person who shot Michael Cheek, and
testified that there was no doubt in his mind that appellant was the shooter.
{¶13} Both Williams and Edwards described the final moments of the life of
Michael Cheek. They ran to their friend as he lay on the ground. Cheek told them that he
couldn't feel his legs. Williams, Edwards, and Friedman tried to pick up Cheek in an
attempt to carry him to the car, but bystanders advised them not to move him. Cheek
stated that he could not feel his body anymore. Williams placed his hand under Cheek's
head as Cheek coughed and his eyes rolled back into his head.
Stark County, Case No. 2016CA00076 5
{¶14} Emergency medical personnel and police arrived. Patrolman Michael
Nordick lifted Cheek from the large pool of blood in which he lay, and noted an entrance
wound in his back.
{¶15} Cheek was transported to Aultman Hospital. Edwards and Williams also
went to Aultman and were told that Cheek was dead. Patrolman Nordick questioned
Edwards at the hospital, and Edwards told him that appellant was the shooter.
{¶16} At the conclusion of the jury trial and the end of deliberations, appellant was
found guilty as charged. As memorialized in an Entry filed on October 31, 2005, the trial
court sentenced appellant to an aggregate prison term of eighteen years to life.
{¶17} Appellant then appealed. Pursuant to an Opinion filed on November 27,
2006 in State v. Stevens, 5th Dist. Stark No. 2005-CA-00286, 2006-Ohio-6240, this Court
affirmed the judgment of the trial court.
{¶18} Subsequently, on November 2, 2015, appellant filed an Application for
Leave to File Delayed Motion for New Trial. Appellant argued that there was newly
discovered evidence in his case and that he was unavoidably prevented from discovering
the same prior to filing his application. The newly discovered evidence was an affidavit
from the victim’s sister, Shyeaka Sianna Ball, and an affidavit from Julius Edwards. Ball,
in her June 19, 2015 affidavit, stated that she was ten years old when her brother was
killed and that a couple of days after he was killed in 2005, while at a gathering at her
mother’s house, she heard Julius Edwards state “I don’t know how I’m going to look their
family in the face and tell them that I shot my best friend.” Ball, in her affidavit, further
stated that Julius Edwards said that he accidentally shot and killed her brother and that
she tried to tell her mother, but was told to mind her own business. Ball also stated that
Stark County, Case No. 2016CA00076 6
she had recently contacted appellant’s sister through Facebook to let her know what Ball
had witnessed back in 2005.
{¶19} Julius Edwards, in his February 1, 2013 affidavit, stated that he testified
falsely at appellant’s criminal trial and was threatened and coerced by the Prosecution
into testifying falsely at trial. He stated that the shots did not come from appellant, but
from the entrance to the store, and that appellant never had a gun. Edwards further stated
that he was jealous of appellant and missed the victim, who was his best friend, and
“decided incorrectly that [appellant] should pay for the killing.”
{¶20} On March 9, 2016, appellant filed a request for a hearing on his application
and/or for a ruling on the same. The trial court, as memorialized in a Judgment Entry filed
on March 14, 2016, denied appellant’s motion.
{¶21} Thereafter, on March 31, 2016, appellee filed a reply to appellant’s
Application for Leave to File Delayed Motion for New Trial. Pursuant to a Judgment Entry
filed on April 15, 2016, the trial court overruled appellant’s application.
{¶22} Appellant now raises the following assignment of error on appeal:
{¶23} THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR
LEAVE TO FILE A MOTION FOR NEW TRIAL WITHOUT A HEARING, AND THUS
DENIED APPELLANT HIS DUE PROCESS RIGHT TO REVIEW OF THE
SUBSTANTIVE AND LEGAL MERITS OF A MOTION FOR NEW TRIAL.
I
{¶24} Appellant, in his sole assignment of error, argues that the trial court erred in
denying his Application for Leave to File Delayed Motion for New Trial without a hearing.
We disagree.
Stark County, Case No. 2016CA00076 7
{¶25} Crim.R. 33 governs new trials. A motion for a new trial made pursuant to
Crim.R. 33 is addressed to the sound discretion of the trial court, and may not be reversed
unless we find an abuse of discretion. State v. Schiebel, 55 Ohio St.3d 71,
564 N.E.2d 54
(1990). An abuse of discretion implies that the trial court's judgment is arbitrary,
unreasonable, or unconscionable. State v. Sage,
31 Ohio St.3d 173,
510 N.E.2d 343
(1987).
{¶26} Crim.R. 33 states, in relevant part, as follows:
(A) Grounds. A new trial may be granted on motion of the defendant
for any of the following causes affecting materially his substantial rights:…
(6) When new evidence material to the defense is discovered which
the defendant could not with reasonable diligence have discovered and
produced at the trial. When a motion for a new trial is made upon the ground
of newly discovered evidence, the defendant must produce at the hearing
on the motion, in support thereof, the affidavits of the witnesses by whom
such evidence is expected to be given, and if time is required by the
defendant to procure such affidavits, the court may postpone the hearing of
the motion for such length of time as is reasonable under all the
circumstances of the case. The prosecuting attorney may produce affidavits
or other evidence to impeach the affidavits of such witnesses.
{¶27} Pursuant to Crim.R. 33(B):
Application for a new trial shall be made by motion which, except for
the cause of newly discovered evidence, shall be filed within fourteen days
after the verdict was rendered, or the decision of the court where a trial by
Stark County, Case No. 2016CA00076 8
jury has been waived, unless it is made to appear by clear and convincing
proof that the defendant was unavoidably prevented from filing his motion
for a new trial, in which case the motion shall be filed within seven days from
the order of the court finding that the defendant was unavoidably prevented
from filing such motion within the time provided herein.
Motions for new trial on account of newly discovered evidence shall
be filed within one hundred twenty days after the day upon which the verdict
was rendered, or the decision of the court where trial by jury has been
waived. If 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.
{¶28} “[A] party is ‘unavoidably prevented’ from filing a motion for a new trial if the
party had no knowledge of the existence of the ground supporting the motion and could
not have learned of that existence within the time prescribed for filing the motion in the
exercise of reasonable diligence.” State v. Walden, 19 Ohio App.3d 141, 145–146,
483
N.E.2d 859 (10th Dist. 1984).
{¶29} To warrant the granting of a motion for a new trial on the ground of newly
discovered evidence, it must be shown that “the new evidence (1) discloses a strong
probability that it will change the result of a new trial if 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
Stark County, Case No. 2016CA00076 9
former evidence; and (6) does not merely impeach or contradict the former evidence.”
State v. Petro, 148 Ohio St. 505,
76 N.E.2d 370 (1947), syllabus.
{¶30} Appellant, in the case sub judice, argued that he had newly discovered
evidence that would warrant a new trial. As is stated above, appellant supported his
application with the June 19, 2015 affidavit of Shyeaka Sianna Ball, and the February 1,
2013 affidavit from Julius Edwards. As noted by appellee, with respect to Edwards’
affidavit, neither the affidavit nor appellant’s application explains how the affidavit was
prepared, what lead to its preparation years after appellant’s conviction was affirmed, or
how and when it ended up in appellant’s possession.
{¶31} While Julius Edwards’ affidavit was dated February 1, 2013, appellant did
not file his application until November 2, 2015. Appellant, in his application, stated that
Edwards’ affidavit, standing alone, was not sufficient evidence to warrant the granting of
a new trial, but argues that such affidavit, taken in conjunction with the June 19, 2015
affidavit of Shyeaka Sianna Ball, does warrant a new trial.
{¶32} As an initial matter, we note that appellant does not explain why he waited
for over five months after obtaining Ball’s affidavit to file his application. Moreover, we find
that the two affidavits contradict each other. While Ball, in her affidavit, stated that she
heard Julius Edwards state in 2005 that he had shot and killed Michael Cheek and that
the shooting was accidental, Edwards, in his affidavit, does not accept responsibility but
rather points to some unknown and unnamed gunman. As noted by appellee, Ball’s later
affidavit destroys the credibility of Edwards’ earlier affidavit and the credibility of Ball’s
affidavit is destroyed by Edwards’ affidavit.
Stark County, Case No. 2016CA00076 10
{¶33} Moreover, both affidavits are contradicted by the trial evidence, which is set
forth above. There was testimony that Hussin Almuzerwi, the store clerk saw appellant
reach for something at his waist. Aubrey Williams, a witness, testified that he saw
appellant run out of the store. He identified appellant as the person who shot Michael
Cheek, and testified that there was no doubt in his mind that appellant was the shooter.
At trial, Julius Edwards’ testimony corroborated Williams’ version of events and was
consistent with the statement that he gave to police on July 30, 2005, a copy of which
was attached to appellee’s March 31, 2016 reply. In his statement to police, Edwards
identified appellant as the shooter.
{¶34} Based on the foregoing, we find that the trial court did not err in denying
appellant’s Application for Leave to File Delayed Motion for New Trial without a hearing.
The trial court’s decision was not arbitrary, unconscionable or unreasonable. We find that
appellant failed to show by clear and convincing evidence that he was unavoidably
prevented from the discovery of the evidence upon which he relied or that the new
evidence disclosed a strong probability that it would change the result of a new trial if
granted.
{¶35} Appellant’s sole assignment of error is, therefore, overruled.
Stark County, Case No. 2016CA00076 11
{¶36} Accordingly, the judgment of the Stark County Court of Common Pleas is
affirmed.
By: Baldwin, J.
Farmer, P.J. and
Hoffman, J. concur.
