DECISION.
On November 11, 1995, a jury found appellant Alphonso Mathis guilty of complicity to murder Ronald Dodson. Mathis appealed the conviction resulting from the jury's verdict, and on December 31, 1996, this court affirmed the judgment of the trial court. On June 4, 1998, Mathis filed a motion for leave to file a delayed Crim.R. 33 motion for a new trial based on newly discovered evidence. In support of his motion, Mathis provided his own affidavit, two affidavits of Avery McMullen, the affidavit of Joseph Elliott, the affidavit of Victor Rogers, and the affidavit of Montorri Lipscomb. The trial court denied Mathis's motion on June 5, 1998. Mathis appeals the denial of the motion, contending that he had demonstrated that he was unavoidably prevented from discovering the evidence that he claims entitles him to a new trial within 120 days of the jury's verdict. We disagree.
Under Crim.R. 33(B), if a defendant fails to file a motion for a new trial based on newly discovered evidence within 120 days of a jury's verdict, he or she must seek leave from the trial court to file a delayed motion. To obtain such leave, the defendant has to demonstrate by clear and convincing proof that he or she was unavoidably prevented from discovering the evidence within the 120 days.1 "[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 a 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."2
Clear and convincing proof is a measure of proof that is more than a preponderance of the evidence, but less than proof beyond a reasonable doubt: it "produce[s] in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established."3 Clear and convincing proof requires more than a mere allegation that a defendant has been unavoidably prevented from discovering the evidence he seeks to introduce as support for a new trial.4 "Where the proof required must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof."5 However, where there is competent and credible evidence supporting the trial court's decision, the appellate court should not substitute its judgment for that of the trial court.6
The record indicates that on June 4, 1998, more than two and one-half years after Mathis's conviction, Mathis filed his motion seeking leave to file a motion for a new trial based on newly discovered evidence. In his memorandum supporting the motion, Mathis stated that on April 1, 1997, he obtained sworn affidavits from Avery McMullen, Joseph Elliott, and Victor Rogers. He also obtained a sworn affidavit from Montorri Lipscomb on May 28, 1998. Specifically, Mathis stated that he did not know McMullen possessed the information until more than 120 days after his trial; that he was unavoidably prevented from obtaining the information from Elliott because he was not acquainted with Elliott until more than 120 days after the jury's verdict; that he could not have earlier obtained the information from Rogers, because Rogers had exercised his privilege against self-incrimination at Mathis's trial; and that he was unavoidably prevented from providing Lipscomb's testimony earlier, because Lipscomb claimed that he had not seen anything at the time of the murder and because, although subpoenaed, Lipscomb did not take the stand at his trial. Mathis attached the affidavits from McMullen, Elliott, Rogers, and Lipscomb to his motion.
In McMullen's first affidavit, he contended that Woods, a witness at Mathis's trial, allegedly made certain statements on December 19, 1995, that contradicted and impeached Woods's trial testimony. McMullen, who was apparently an acquaintance of Mathis, clearly had knowledge of Woods's testimony before the 120 days had ended. Thus, the fact that Mathis did not know McMullen had the information relating to Woods's statements does not demonstrate how Mathis was prevented, if he had exercised due diligence and effort, from discovering the statements within 120 days of the jury's verdict. In McMullen's second affidavit, he stated that "on or about" March 20, 1996, he had a conversation with Rogers in which Rogers informed him that he had shot Dodson and that Mathis had no knowledge of the incident. Even if we assume that this conversation may have occurred outside of the 120-day filing period, the record reflects that McMullen signed the affidavit on September 23, 1996. Apparently, this information was available to Mathis at least two years before he filed the motion. Mathis presents no explanation why he delayed filing his motion for an additional two years. Thus, Mathis did not exercise reasonable diligence in bringing that evidence to light in a timely manner.7
In Elliott's affidavit, he alleged that Rogers told him that Mathis was not involved in Dodson's murder. Mathis's defense at his trial was that Rogers had killed Dodson, and that Mathis was not present. However, the record fails to demonstrate by clear and convincing evidence that Mathis did not have the opportunity for diligent inquiry to find Elliott within 120 days of the verdict to substantiate his defense. Further, Elliott's affidavit failed to indicate the date when he learned Rogers had acted alone. Because it was Mathis's burden to demonstrate otherwise, we assume that the information was available before the 120 days had ended.
In Rogers's affidavit, he stated that Mathis was not with him at the time of the murder and that Mathis did not use his car to help Rogers escape. At Mathis's trial, Rogers was subpoenaed and called as a witness, but he exercised his privilege against self-incrimination. Clearly, Rogers possessed this information during the 120-day time period, and no evidence was offered as to why Rogers did not come forth with the information during that period. Therefore, the information presented in Rogers's affidavit was available to Mathis within the 120-day time period. Additionally, Rogers's affidavit was notarized on Sept 23, 1996, so Mathis was aware of Rogers's contentions at least two years before he filed his motion.8 Absent an explanation for why the evidence could not have been discovered during the statutory time frame or why he was delayed for years before filing his motion after receiving Rogers's affidavit, we cannot say that Mathis provided clear and convincing evidence that he was unavoidably delayed in obtaining this evidence.
Finally, in Lipscomb's affidavit, he stated that he saw an individual other than Mathis with Rogers when Rogers shot Dodson, and that he saw Rogers shoot Dodson. Mathis has failed to demonstrate that he was unavoidably prevented from discovering Lipscomb's evidence. Lipscomb was subpoenaed and available for examination at trial. The fact that he had stated that he had not seen anything in an informal setting did not preclude Lipscomb from being sworn as a witness and questioned at trial. If this had occurred, Lipscomb might have provided truthful testimony.
In sum, we hold that Mathis did not present sufficient evidence to obtain leave for the filing of a motion for a new trial. Mathis's sole assignment of error is, therefore, overruled, and we affirm the judgment of the trial court.
Judgment affirmed. Winkler, J., concurs.
Painter, P.J., dissents.
1 Crim.R. 33(B).
2 State v. Walden (1984), 19 Ohio App.3d 141, 146,483 N.E.2d 859, 865.
3 State v. Schiebel (1990), 55 Ohio St.3d 71, 74,564 N.E.2d 54, 60, quoting Cross v. Ledford (1954), 161 Ohio St. 469,120 N.E.2d 118, paragraph three of the syllabus.
4 See State v. Kiraly (1977), 56 Ohio App.2d 37, 55,381 N.E.2d 649, 660-661 (Krenzler, J., concurring in judgment only);State v. Dodrill (Oct. 28, 1987), Lorain App. No. 4204, unreported.
5 State v. Schiebel, supra, at 74, 564 N.E.2d at 60.
6 See id.
7 See State v. Nicholson (May 1, 1997), Cuyahoga App. No. 70916, unreported.
8 See State v. Nicholson, supra.
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