[Cite as State v. Wilson,
2025-Ohio-392.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 30178
:
v. : Trial Court Case No. 2006 CR 04325
:
JOSHUA EUGENE WILSON : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on February 7, 2025
...........
JOSHUA EUGENE WILSON, Appellant, Pro Se
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Attorney for Appellee
.............
HUFFMAN, J.
{¶ 1} Joshua Eugene Wilson appeals pro se from an order denying multiple pro se
motions that he filed in January 2024 following his 2007 conviction for murder and
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felonious assault. For the following reasons, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶ 2} When we affirmed Wilson’s conviction on direct appeal, we set forth the
following facts:
On October 8, 2006, D'Laquan Phillips and his uncle, Michael
Phillips, were walking Michael's dog on West Third Street in Dayton, when
two men, one dressed in all black and wearing a hooded sweatshirt and the
other one wearing lighter colored clothing, confronted them. The two men
accused D'Laquan Phillips of a trespassing offense. D'Laquan Phillips
insisted they had the wrong man. An argument then ensued.
D'Laquan Phillips dropped his dog's leash when confronted by the
two men and Michael Phillips overhead the argument between D'Laquan
Phillips and the two men while he was untangling the dog from a bush into
which it had run. Michael Phillips heard a gunshot and saw D'Laquan
Phillips struggling with the man dressed in black, later identified as
Defendant, Joshua Wilson.
D'Laquan Phillips attempted to flee from Defendant but Defendant
shot D'Laquan Phillips in the back. Michael Phillips watched as D'Laquan
Phillips, while lying on the ground, reached out and grabbed Defendant's
pants leg. Defendant responded by shooting D'Laquan Phillips in the
head. Michael Phillips ran to a neighborhood store and called police.
D'Laquan Phillips died at the scene.
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Detective Doyle Burke of the Dayton police department assembled a
photospread that included Defendant's picture. Four days after this
shooting occurred, Michael Phillips identified Defendant from that
photospread as the man who shot and killed D'Laquan Phillips. Three
other witnesses, Michael Huff, Jacqueline James and John Bridges, either
heard and/or saw the shooting, although they could not identify the shooter.
D'Laquan Phillips was shot eight times, once in the thigh, once in the hand,
twice in the back, and four times in the head. All of the bullets and shell
casings recovered from the victim's body or at the scene were fired from the
same gun, which police found in an alley near the crime scene. Five days
after this shooting, police arrested Defendant, who still wore a black hooded
sweatshirt and had blood on his right shoe.
Defendant was indicted on one count of purposeful murder, R.C.
2903.02(A), one count of felony murder, R.C. 2903.02(B), one count of
felonious assault involving serious physical harm, R.C. 2903.11(A)(1), and
one count of felonious assault involving a deadly weapon, R.C.
2903.11(A)(2). A firearm specification, R.C. 2941.145, was attached to
each of the charges. Following a jury trial, Defendant was found guilty of
all charges and specifications. At sentencing, the trial court merged the
two murder charges and imposed one fifteen year to life sentence. The
court also sentenced Defendant to eight years on each count of felonious
assault, and ordered all of the sentences to be served consecutively.
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Finally, the court merged the firearm specifications and imposed one
additional and consecutive three year prison term, for a total aggregate
sentence of thirty four years to life.
State v. Wilson, 2008-Ohio-4130, ¶ 2-7 (2d Dist.).
{¶ 3} On January 9, 2024, Wilson filed a pro se motion for leave to file a motion to
vacate his conviction under the postconviction relief statute or, in the alternative, a motion
for leave to file a motion for new trial pursuant to Crim.R. 33. On January 12, 2024,
without leave of court, Wilson filed pro se motion for new trial under Crim.R. 33(A)(2)(C).
Finally, on January 31, 2024, Wilson filed a motion for the court to rule on his motions
without a response from the State, citing R.C. 2953.21(D). Wilson attached the
following to his January 9 and January 12 motions:
● His affidavit
● Page 136 of the transcript of his trial
● The autopsy report of the victim
● A Miami Valley Regional Crime Laboratory document listing, in part, the
victim’s clothing
● An August 30, 2023 Report of Prosecutor filed in response to a request
for DNA testing
● August 15, 2023 correspondence to the prosecutor from the Property and
Evidence Storage Supervisor listing evidentiary items related to Wilson’s
case, including fingernail scrapings, a Bic lighter, an “AA Kit,” and “Misc.
clothing” held in the police department property room
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● September 20, 2023 correspondence from Attorney Erin Branham to
Wilson that stated, “I don’t see anything in your records about an AA kit or
the fingernail scrapings recovered at the autopsy”
● Chain of Custody Reports for various items from Wilson’s case that do
not reflect the items identified in the August 15, 2023 correspondence
● A Miami Valley Regional Crime Laboratory document that lists Wilson’s
clothing.
{¶ 4} In his affidavit, Wilson stated that he had requested DNA testing on July 17,
2023, and as a result of the request, the State was required to file a report pursuant to
R.C. 2953.75. As a result of the August 30, 2023 report in response to his request,
Wilson allegedly learned “that the prosecution [was] withholding exculpatory evidence”
material to his case, which led him to investigate. Specifically, Wilson stated that
fingernail scrapings, an “AA Kit,” a lighter, and miscellaneous clothing had not been
“documented on the chain of custody evidence logs as items being collected” during the
investigation of D’Laquan Phillips’s death. Wilson claims that it became “clear to [him]
that the prosecution suppressed exculpatory evidence” that was material to his case.
{¶ 5} According to Wilson’s affidavit, he contacted Attorney Erin Branham to further
investigate. He learned from her that there was nothing in his “records” about an “AA
Kit” or fingernail scrapings. Wilson argued that his motion, affidavit, and exhibits
established that “this exculpatory evidence is missing from the whole record” and proved
that the prosecution had “suppressed” this evidence and never turned it over to the
defense in response to its demand for discovery.
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{¶ 6} Specifically, Wilson averred that the fingernail scrapings had been material
to his case because the State’s position at trial was that the victim had struggled with his
assailant. Wilson asserted that he had been mistakenly identified. As such, he
suggested that the results of DNA testing of the fingernail scrapings could have “been
used to discredit witnesses and create reasonable doubt” but for the prosecution’s
interference with that opportunity. Wilson noted that the victim’s uncle had initially
accused someone else of killing the victim.
{¶ 7} On May 29, 2024, the trial court overruled Wilson’s substantive motions and
found his motion to rule without the State’s response to be moot. Before addressing
Wilson’s assignments of error, we will review the trial court’s decision denying Wilson’s
motions.
{¶ 8} Regarding the motion for leave to file a motion for new trial, the court noted
that Wilson relied upon the prosecutor’s report in response to a request for DNA testing,
which was denied. The court further noted that Wilson asserted that he had been
unaware of items related to his case and held in the police department property room
prior to the filing of the prosecutor’s report, including the fingernail scrapings, a lighter, an
“AA kit,” and clothing. It was unclear to the court if defense counsel had been aware of
the items at the time of trial, and it was unclear from Wilson’s affidavit and the exhibits
attached to his motion to whom the fingernail scrapings, lighter, clothing, and “AA kit”
belonged.
{¶ 9} The court found that Wilson’s affidavit and supporting documentation did not
establish “by clear and convincing proof that the evidence was suppressed.” The court
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found that Wilson had not offered any evidence that he could not have discovered the
existence of the items in the property room within Crim.R. 33(B)’s 120-day time frame
and had not described any investigative efforts he took during that time. The court
observed that it was unclear when Attorney Branham had made public records requests
or if she had even requested records from police department, but based on Wilson’s claim
that he only learned of those items in August 2023, “one could assume those requests
were not made within 120 days of March 7, 2007, the date the verdict was rendered in
this case.”
{¶ 10} The court found that Wilson had presented no evidence that he had made
public records requests to the police department within 120 days of his conviction; the
only effort he made to discover the existence of items in the property room was to request
discovery prior to trial. On this basis, the court concluded that Wilson had failed to show
“by clear and convincing evidence that he was unavoidably prevented from discovering
the evidence” on which his motion for new trial was based within the 120-day time frame
as required by Crim.R. 33 and had not made “a prima facie showing that the state
suppressed evidence.”
{¶ 11} Regarding Wilson’s motion for leave to file a petition for post-conviction
relief, the court observed that Wilson did not allege that the United States Supreme Court
had recognized a new federal or state right that applied retroactively to his case, and he
also did not present any evidence that he could not have discovered the evidence by the
exercise of reasonable diligence prior to the filing of the prosecutor’s report. The court
found that the only thing Wilson claimed to have done to ascertain whether the evidence
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was in existence was to file a demand for discovery under Crim.R. 16. Wilson did not
present any evidence that he made records requests to the police department within the
time frame required to file a petition for postconviction relief.
{¶ 12} Finally, the court found that Wilson had not shown by clear and convincing
evidence that, but for the alleged suppression of the existence of fingernail scrapings,
miscellaneous clothing, a bic lighter, and an “AA kit,” no reasonable factfinder would have
found him guilty of the offenses for which he was convicted. The court again noted that
there was no evidence to indicate from whom the fingernail scrapings had been collected
or to indicate what an “AA kit” is or to whom it belonged; and without more information,
the court found it “impossible to determine whether a reasonable factfinder would have
found him guilty of the offenses.” The court also found that Wilson’s motion for leave to
file a petition for postconviction relief was untimely.
{¶ 13} Wilson’s appeal is limited to the denial of leave to file a motion for a new
trial. He raises two assignments of error, which we will consider together.
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
DEFENDANT-APPELLANT’S MOTION FOR LEAVE TO FILE A MOTION FOR
NEW TRIAL.
THE TRIAL COURT ERRED BY NOT CONDUCTING AN
EVIDENTIARY HEARING.
{¶ 14} In his first assignment of error, Wilson argues that his state and federal
rights were violated when the State withheld exculpatory evidence that, if it had been
disclosed and used effectively, “may have made the difference between conviction and
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acquittal.” Wilson cites Brady v. Maryland, 373 U.S. 83 (1963). According to Wilson,
the fingernail scrapings from the victim, the “AA kit,” and clothing “were collected from an
alternative suspect(s),” and the lighter was recovered from the scene. Wilson argues
that he established a prima facie case of a Brady violation because the State did not deny
the allegations set forth in his motion for leave to file a motion for a new trial in the trial
court.
{¶ 15} Wilson argues that the State failed to produce the items at issue in discovery
and “should not be able to contest his assertions for the first time at the appeal level.”
He asserts that the transcript page and police chain of custody logs attached to his
January 9 motion established that the State had withheld the items at issue and that
Wilson and his attorney “had zero knowledge” that the State was in possession of
“possibly exculpatory information” until the report was filed. Wilson asserts that it was
the State’s obligation to learn of the evidence and produce it and that its failure to do so
led to “the egregious and wrongful conviction of one who is actually innocent.”
{¶ 16} Citing Attorney Branham’s letter, Wilson asserts that, if the court had held
a hearing, “it would have seen that [Branham] made her decision from looking at the entire
case file in the case at bar, [and] that the ‘AA Kit’ and Fingernail Scrapings were not turned
over.” He argues that his October 31, 2006 demand for discovery established that the
State suppressed the evidence, and he contends that defendants should have the
opportunity to determine for themselves what evidence is exculpatory. According to
Wilson, “had the collections of the victim’s fingernail scrapings been disclosed to the
defense and tested for DNA of [the] true assailant who tussled with the victim, [it] could
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have made the difference between conviction and acquittal for” Wilson, who could have
been “exonerated . . . from being present at the crime scene.” Wilson asserts that the
evidence would have impeached the testimony of the State’s “star witness,” Michael
Phillips, leading to his exoneration at trial, and that the suppression of the scrapings
established their materiality. Wilson suggests that the clothing belonged to an
“alternative suspect,” that he was misidentified in a photo spread by Phillips, and that he
did not match the description of the suspect leaving the crime scene.
{¶ 17} The State asserts that the trial court could have automatically rejected
Wilson’s motion for a new trial because he filed it before the court had ruled on his motion
for leave to file a motion for a new trial. The State also points out that that Wilson did not
include an affidavit from defense counsel or any evidence establishing that he did not
know and could not have known of the existence of the evidence at the time of trial or
within 120 days afterward. Thus, the trial court did not abuse its discretion.
{¶ 18} In reply, Wilson asserts that he was not required to obtain an affidavit from
defense counsel because the documents themselves, which were from State entities,
demonstrated a prima facie showing of a Brady violation. Wilson argues that the State
failed to produce any exhibits, “only [the] bare assertions that the evidence was disclosed”
and that defense counsel could have known and not told Wilson about the evidence. He
asserts that the items were not made known to him until after he applied for DNA testing
in July 2023. Wilson denies that his affidavit was self-serving.
{¶ 19} In his second assignment of error, Wilson asserts that there was “a plethora
of evidence” warranting a hearing and there were “many open-ended questions” that
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could have only been answered by law-enforcement experts who were subjected to direct
and cross-examination at an evidentiary hearing. The State responds that he was not
entitled to an evidentiary hearing.
{¶ 20} Motions for a new trial are governed by Crim.R. 33. Crim.R. 33(A) sets
forth the bases for granting a new trial and provides in part: “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. . . .”
{¶ 21} Except for motions based on newly discovered evidence under Crim.R.
33(A)(6), a motion for new trial “shall be filed within fourteen days after the verdict was
rendered . . . 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 . . . [.]” Crim.R. 33(B).
In contrast, a motion for new trial based on newly discovered evidence “shall be filed
within one hundred twenty days after the day upon which the verdict was rendered . . .[.]”
Id.
In order to file a motion for new trial after the expiration of the time
periods specified in Crim.R. 33(B), a defendant must first seek leave of the
trial court to file a delayed motion. [State v. Lanier, 2010-Ohio-2921, ¶ 15
(2d Dist.), citing State v. Warwick, 2002 WL 1585663, *2 (2d Dist. July 19,
2002); State v. Parker, 2008-Ohio-5178, ¶ 16 (2d Dist.).] “To obtain leave,
defendant must demonstrate by clear and convincing evidence that he or
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she was unavoidably prevented from timely filing the motion for a new trial
or discovering the new evidence within the time period provided by Crim.R.
33(B).” (Citations omitted.) Warwick at *2. “The reference to ‘clear and
convincing proof’ means something more than bare allegations or
statements in a motion.” [State v. Morris, 2017-Ohio-1196, ¶ 19 (2d Dist.]
...
“ ‘[A] party is unavoidably prevented from filing a motion for new trial
if the party 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.’ ” Parker at ¶ 16, quoting [State v.
Walden, 19 Ohio App.3d 141, 145-146 (10th Dist.1984).] “[A] defendant
fails to demonstrate that he or she was unavoidably prevented from
discovering new evidence when he would have discovered that information
earlier had he or she exercised due diligence and some effort.” [State v.
Lenoir, 2016-Ohio-4981, ¶ 24 (2d Dist.), citing State v. Metcalf, 2015-Ohio-
3507, ¶ 11 (2d Dist.), citing Warwick.].
State v. Harwell, 2023-Ohio-3657, ¶ 22 (2d Dist.), quoting State v. Harwell, 2019-Ohio-
643, ¶ 16- 17 (2d Dist.).
{¶ 22} “ ‘Newly discovered evidence’ is ‘evidence of facts in existence at the time
of trial of which the party seeking a new trial was justifiably ignorant.’ ” State v. Love,
2006-Ohio-6158, ¶ 43 (1st Dist.).
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“Evidence which merely impeaches or contradicts evidence in the former
trial is insufficient to support a motion for a new trial.” (Citations omitted.)
State v. Wright, 67 Ohio App.3d 827, 831 . . . (2d Dist.1990). “ ‘The test is
whether the newly discovered evidence would create a strong probability of
a different result at trial, or whether it is merely impeaching or contradicting
evidence that is insufficient to create a strong probability of a different
result.’ ” Id., quoting Dayton v. Martin,
43 Ohio App.3d 87, 90 . . . (2d
Dist.1987).
State v. Morris, 2017-Ohio-1196, ¶ 13 (2d Dist.).
{¶ 23} “When a defendant seeks leave to file a motion for a new trial under Crim.R.
33(B), the trial court may not consider the merits of the proposed motion for a new trial
until it grants the motion for leave.” State v. Hatton, 2022-Ohio-3991, ¶ 30, citing State
v. Bethel,
2022-Ohio-783, ¶ 41, citing State v. Brown,
2011-Ohio-1080, ¶ 14 (8th Dist.).
“The sole question before the trial court when considering whether to grant leave is
whether the defendant has established by clear and convincing proof that he was
unavoidably prevented from discovering the evidence on which he seeks to base the
motion for a new trial.”
Id.
{¶ 24} A “trial court’s decision ‘whether to conduct an evidentiary hearing on a
motion for leave to file a motion for a new trial is discretionary and not mandatory.’ ” State
v. Ambartsoumov, 2013-Ohio-3011, ¶ 13 (10th Dist.), quoting State v. Cleveland, 2009-
Ohio-397, ¶ 54 (9th Dist.) “A criminal defendant ‘is only entitled to a hearing on a motion
for leave to file a motion for a new trial if he submits documents which, on their face,
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support his claim that he was unavoidably prevented from timely discovering the evidence
at issue.’ ” Id., quoting Cleveland, citing State v. McConnell,
2007-Ohio-1181, ¶ 7 (2d
Dist.).
{¶ 25} We review the trial court's denial of leave to file a motion for a new trial for
an abuse of discretion. State v. Devaughns, 2015-Ohio-452, ¶ 15 (2d Dist.). “ ‘Abuse
of discretion’ has been defined as an attitude that is unreasonable, arbitrary or
unconscionable.” AAAA Ents., Inc. v. River Place Community Urban Redevelopment
Corp.,
50 Ohio St.3d 157, 161 (1990), citing Huffman v. Hair Surgeon, Inc.
19 Ohio St.3d
83, 87 (1985). “It is to be expected that most instances of abuse of discretion will result
in decisions that are simply unreasonable, rather than decisions that are unconscionable
or arbitrary.”
Id. “A decision is unreasonable if there is no sound reasoning process
that would support that decision. It is not enough that the reviewing court, were it
deciding the issue de novo, would not have found that reasoning process to be
persuasive, perhaps in view of countervailing reasoning processes that would support a
contrary result.”
Id.
{¶ 26} The trial court reasonably concluded that Wilson had failed to show that that
he was unavoidably prevented from timely requesting a new trial or discovering the
evidence within the time period provided by Crim.R. 33(B). Thus, the trial court did not
abuse its discretion in denying leave to file a motion for new trial. The correspondence
from Attorney Branham was hearsay,1 and the court was free to disregard it. The trial
1
Hearsay “is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted in the
statement.” Evid.R. 801(C).
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court reasonably determined that Wilson had provided no evidence that he could not have
discovered the items at issue within the 120-day time frame set forth in Crim.R. 33.
According to Wilson, the fingernail scrapings were from the victim, and the transcript page
attached to his motion, which discussed the bagging of the victim’s hands, supported this
conclusion. The following exchange occurred at trial during the direct examination of Dr.
Kent Harshbarger, the forensic pathologist who performed the autopsy on the victim:
Q. . . . Doctor you made mention of some paper bags that appeared to be
on the hand or hands of the victim, tell us a little more about that, how those
bags got on the victim’s hands and why.
A. . . . The bags are put on either by the crime scene evidence crew with
the police department or our investigators will place those bags on the
hands. Their purpose is to contain any trace evidence that might have
been present under the fingernails. If evidence, if it turns out to be a close
contact cause of his death, for instance a knife or a fight or something, we
look under the nails, we look on the hands for any kind of evidence that may
have transferred. Also in gunshot wound cases it is potential [sic] to get
gunshot residue off the hands to see if the person, the decedent may have
fired a weapon or not as well.
This evidence supported a conclusion that Wilson knew at trial that the victim’s hands
had been bagged to preserve evidence.
{¶ 27} Wilson also pointed to a lighter and clothing recovered from the scene. It
was unclear to whom the miscellaneous clothing belonged, although Wilson claimed that
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it was collected from unidentified “alternative suspect(s).” The only references to clothing
in the documents from the Miami Valley Regional Crime Laboratory on which Wilson
relied referred to the clothing of the victim and Wilson. Wilson did not identify the “AA
Kit,” but in common criminal justice parlance, AA testing refers testing for gunshot residue.
The remaining items, like the fingernail scrapings, originated from the 2006 crime scene
and were not newly discovered evidence. The trial court reasonably concluded that the
items on which Wilson relied did not create a strong probability of a different result at trial,
given the overwhelming evidence of Wilson’s guilt.
{¶ 28} Although convicted in 2007, Wilson did not request DNA testing until 2023.
He appealed from the denial of his application for post-conviction testing, and we affirmed
the judgment of the trial court. State v. Wilson, 2024-Ohio-4712, ¶ 18 (2d Dist.) (“It is
undisputed that DNA testing was generally accepted, admissible, and available at the
time of Wilson’s trial.”) Wilson could have sought DNA testing at the time of his trial (and
learned of the allegedly suppressed evidence at that time). In other words, the
documents submitted by Wilson, on their face, did not support his claim that he had been
unavoidably prevented from timely discovering them. Wilson’s assertions about the
alleged source of the miscellaneous clothing being another suspect and the alleged
exculpatory nature of all of the items were purely speculative. Accordingly, we cannot
conclude that Wilson was unavoidably prevented from discovering the evidence, and on
this record, Wilson’s assertion that the State withheld the evidence was merely
supposition. Wilson’s first assignment of error is overruled.
{¶ 29} Further, Wilson was not automatically entitled to a hearing on his motion for
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leave to file a motion for a new trial. Having found that the documents submitted with
Wilson’s motion did not support the claim that he had been unavoidably prevented from
timely discovering the evidence, the trial court was not required to hold a hearing.
Accordingly, Wilson’s second assignment of error is overruled.
{¶ 30} Having overruled both of Wilson’s assigned errors, the judgment of the trial
court is affirmed.
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EPLEY, P.J. and TUCKER, J., concur.
