[Cite as State v. Biggs, 2026-Ohio-2298.]
IN THE OHIO COURT OF APPEALS FIFTH APPELLATE DISTRICT STARK COUNTY, OHIO
STATE OF OHIO, Case No. 2025CA00103 2025CA00104 Plaintiff - Appellee Opinion And Judgment Entry -vs- Appeal from the Stark County Court of JAY L. BIGGS, Common Pleas, Case No. 2008-CR-0653
Defendant - Appellant Judgment: Affirmed
Date of Judgment Entry: June 17, 2026
BEFORE: Craig R. Baldwin; Kevin W. Popham; David M. Gormley, Judges
APPEARANCES: KYLE L. STONE, Prosecuting Attorney, VICKI L. DESANTIS, Assistant Prosecuting Attorney, for Plaintiff-Appellee; ERIKA LAHOTE, NICHOLAS ALLEN, Assistant Public Defenders, for Defendant-Appellant.
Baldwin, P.J.
{¶1} The appellant, Jay L. Biggs, appeals from two judgment entries of the Stark
County Court of Common Pleas denying his motion for leave to file a motion for new trial
and dismissing his petition for postconviction relief. The appellee is the State of Ohio.
STATEMENT OF FACTS AND THE CASE
{¶2} In 2008, the appellant was indicted in the Stark County Court of Common
Pleas on charges of aggravated murder, murder, rape, and endangering children in
connection with the death of his infant daughter.
{¶3} The State argued at trial that the appellant sexually assaulted his daughter
and then caused her death by smothering or otherwise obstructing her breathing. The
State presented medical testimony concerning injuries to the child’s genitalia and the cause and manner of death. Dr. Bertin, a urologist consulted during the autopsy process,
testified to findings he interpreted as traumatic injury to the vaginal area. Dr. P.S. Murthy,
the Stark County Coroner, testified concerning the autopsy findings and opined that the
appellant’s daughter died as a result of asphyxia due to smothering or compression of the
nose and mouth. Dr. Lisa Kohler testified in rebuttal for the State.
{¶4} The appellant denied responsibility. The defense called Dr. Werner Spitz, a
forensic pathologist. Dr. Spitz disputed significant portions of the State’s medical theory
and challenged whether the State had established sexual assault or smothering.
{¶5} Following the trial, the jury found the appellant guilty. The trial court
sentenced the appellant to life in prison without the possibility of parole. The appellant
pursued a direct appeal, and this Court affirmed his convictions. See State v. Biggs, 2009-
Ohio-6885 (5th Dist.). The appellant later pursued additional postjudgment litigation,
including litigation concerning access to tissue slides and other materials. This Court
affirmed prior trial-court rulings in those proceedings. See State v. Biggs, 2013-Ohio-
3333 (5th Dist.); State v. Biggs, 2016-Ohio-5305 (5th Dist.); State v. Biggs, 2020-Ohio-
6691 (5th Dist.).
{¶6} In 2024, the appellant filed a motion for leave to file a delayed motion for a
new trial under Crim.R. 33 and a successive petition for postconviction relief under R.C.
2953.21 and R.C. 2953.23. In support, the appellant relied primarily upon newly obtained
expert reports from Dr. Stephen Guertin and Dr. Janice Ophoven, medical literature or
guidelines concerning suspected child sexual abuse, and materials concerning trial
counsel’s alleged failure to consult or present additional experts.
{¶7} The appellant argued that the new expert reports and updated medical
standards undermined the State’s trial evidence. The defense experts opined that J.B.’s hymen and genital anatomy were intact or normal, that the State’s interpretation of
discoloration and other findings was flawed, that histological review was important to
confirm suspected abuse-related findings, and that the medical evidence did not establish
sexual assault or homicidal smothering.
{¶8} The State opposed the filings. The State argued, among other things, that
the appellant had not demonstrated he was unavoidably prevented from discovering the
evidence upon which he relied; that the new reports were not newly discovered evidence,
but new opinions concerning evidence and materials existing at the time of trial; that
medical literature and guidelines were not new scientific evidence; that the claims were
barred by res judicata or otherwise failed to satisfy the statutory requirements for
successive postconviction relief; and that the appellant had not shown a hearing was
required.
{¶9} The trial court denied the appellant’s motion for leave to file a delayed
motion for new trial and dismissed the successive petition for postconviction relief. The
trial court concluded that the appellant failed to satisfy the threshold requirements for
the relief requested.
{¶10} The appellant filed a timely notice of appeal and raised the following three
assignments of error:
{¶11} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO
GRANT BIGGS’ MOTION FOR LEAVE TO FILE A MOTION FOR NEW TRIAL WHEN
THE RECORD AND CIRCUMSTANCES DEMONSTRATED BY CLEAR AND
CONVINCING PROOF THAT HE WAS UNAVOIDABLY PREVENTED FROM
DISCOVERING THE NEW EVIDENCE.” {¶12} “II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO
HOLD AN EVIDENTIARY HEARING ON BIGGS’ MOTION FOR LEAVE TO FILE A
MOTION FOR NEW TRIAL WHEN HE SET FORTH A PRIMA FACIE CASE THAT HE
WAS UNAVOIDABLY PREVENTED FROM DISCOVERING THE NEW EVIDENCE.”
{¶13} “III. THE TRIAL COURT ERRED WHEN IT DISMISSED BIGGS’
POSTCONVICTION PETITION WITHOUT A HEARING WHEN THE RECORD SHOWS
THAT (1) HE WAS UNAVOIDABLY PREVENTED FROM DISCOVERY OF THE FACTS
UPON WHICH HE RELIES, AND (2) BUT FOR CONSTITUTIONAL ERROR IN HIS
TRIAL, NO REASONABLE FACTFINDER WOULD HAVE FOUND HIM GUILTY.”
I., II.
{¶14} In his first and second assignments of error, the appellant argues that the
trial court erred by failing to grant his motion for leave to file a motion for a new trial and
by failing to hold a hearing on that motion. We disagree.
STANDARD OF REVIEW
{¶15} We review the trial court’s denial of the motion for leave to file a motion for
a new trial under an abuse of discretion standard. State v. Schiebel, 55 Ohio St.3d 71
(1990). It is also within the sound discretion of the trial court to determine whether a
motion for a new trial and the material submitted with the motion warrant an evidentiary
hearing. State v. Hill, 1992-Ohio-43. An abuse of discretion implies more than an error of
law or judgment; instead, it connotes that the trial court’s attitude is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
When applying the abuse of discretion standard, an appellate court may not simply
substitute its judgment for that of the trial court. Id. ANALYSIS
{¶16} Crim.R. 33(B) states:
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
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.
{¶17} The verdict in the appellant’s case was rendered on October 14, 2008, but
he did not file his motion until November 19, 2024. “Because [the] appellant’s motion was
filed well outside the 120-day period, he was required to obtain leave of court to file his
motion for new trial.” State v. Waddy, 2016-Ohio-4911, ¶17 (10th Dist.). To obtain such
leave, the appellant must demonstrate by clear and convincing proof that he was unavoidably prevented from discovering the evidence within the 120 days. State v.
Hoover-Moore, 2015-Ohio-4863, ¶13 (10th Dist.). A party is “unavoidably prevented”
from filing a motion for a new trial if they had no knowledge of the ground supporting the
motion and could not have learned of the existence of that ground within the time
prescribed for filing the motion in the exercise of reasonable diligence. Id.
{¶18} “Clear and convincing proof is that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St.469 (1954), paragraph three of the syllabus.
{¶19} The “unavoidably prevented” requirement in Crim.R. 33 mirrors the
“unavoidably prevented” requirement in R.C. 2953.23. State v. Thornton, 2017-Ohio-637,
¶47 (5th Dist.). “The phrase ‘unavoidably prevented’ means that a defendant was both
unaware of the facts and was unable to learn of them through reasonable diligence.” Id.
{¶20} The appellant contends that the trial court erred in concluding that he failed
to establish unavoidable prevention. He relies on expert reports of Dr. Guertin and Dr.
Ophoven, medical literature and guidelines, and the assertion that trial counsel failed to
consult an appropriate expert concerning the alleged genital injuries.
{¶21} However, the expert reports the appellant seeks to rely on are not newly
discovered evidence within the meaning of Crim.R. 33. They are new expert opinions
interpreting, criticizing, and reweighing medical evidence that existed at the time of trial.
“When a defendant prepares for trial, he and his attorney must research expert witnesses
and make strategic decisions about which ones, if any, to have testify.” State v. Thompson,
2012-Ohio-4862, ¶12 (2d Dist.). “A defendant’s failure to locate and call a particular expert witness does not provide grounds for a delayed motion for a new trial under
Crim.R. 33[.]” Id.
{¶22} The appellant argues the reports are “new” because they were authored
years after the trial and because the experts reached conclusions different from those
presented by the State’s experts. But the fact that an opinion was newly generated does
not make the underlying facts newly discovered. See, Thompson at ¶12. The new reports
merely offer a new evaluation of the same medical evidence. A defendant cannot
transform existing trial evidence into newly discovered evidence by retaining a new expert
to reinterpret it.
{¶23} Nor, on this record, do the medical guidelines satisfy Crim.R. 33(B). We
recognize that a significant posttrial change in scientific knowledge concerning key trial
evidence may, in an appropriate case, qualify as newly discovered evidence under Crim.R.
33. See State v. Grad, 2024-Ohio-5710, ¶¶63-64. But the appellant has not shown that
the guidelines he cites reflect such a change. The materials do not identify a new scientific
test, a newly discovered fact, or a repudiation of the medical principles available at the
time of trial. Rather, the materials function as a summary, compilation, or application of
principles and recommendations that were available, or reasonably discoverable, at the
time of trial. On this record, the guidelines serve as support for a new expert critique of
the State’s trial evidence, not as newly discovered evidence within the meaning of Crim.R.
33(B).
{¶24} The record shows that the appellant knew at trial that the State’s medical
theory was central to the prosecution. The alleged genital injuries and the cause of death
were disputed before the jury. Thus, the record supports the trial court’s conclusion that the factual basis for challenging the State’s medical theory was known or reasonably
discoverable at trial.
{¶25} The appellant also emphasizes that subsequent litigation resulted in access
to the tissue slides and that his current experts reviewed those slides. However, the
existence of microscopic slides was known, and the medical issues surrounding the
alleged genital injuries were fully apparent at trial. The appellant’s current argument is
principally that different experts, applying different training and relying on additional
medical literature, would interpret the same medical evidence differently. The reports,
therefore, do not establish that the appellant was unavoidably prevented from discovering
the core basis of his claim. Accordingly, we find that the trial court did not act
unreasonably, arbitrarily, or unconscionably in finding that the appellant failed to show,
by clear and convincing evidence, that he was unavoidably prevented from discovering
any new evidence.
{¶26} The appellant also argues that the trial court was required to hold an
evidentiary hearing because his supporting materials established a prima facie showing
of unavoidable prevention. But the trial court may deny leave without a hearing when the
motion and supporting materials fail to demonstrate, on their face, clear and convincing
proof of unavoidable prevention. State v. Cleveland, 2009-Ohio-397, ¶54 (9th Dist.). As
we discussed above, the record demonstrated that the appellant knew the relevant
medical issues, knew the State’s theory, and presented expert testimony in response. The
later procurement of more favorable expert opinions does not establish unavoidable
prevention and does not require the trial court to convene a hearing to test those opinions.
{¶27} Furthermore, we are not persuaded by the appellant’s assertion that the trial
court failed to understand the record before it. The trial court was not required to accept the appellant’s characterization of the new materials as newly discovered evidence merely
because the materials were lengthy, technical, or generated after trial. The relevant
question was whether the appellant demonstrated unavoidable prevention, and the trial
court could conclude from the record that the central medical issues were known,
disputed, and litigated at trial.
{¶28} Accordingly, the appellant’s first and second assignments of error are
overruled.
III.
{¶29} In his third assignment of error, the appellant argues that the trial court
erred in dismissing his postconviction petition without a hearing. We disagree.
{¶30} A trial court may not entertain successive petitions unless the petition
satisfies the jurisdictional requirements of R.C. 2953.23. State v. Apanovitch, 2018-Ohio-
4744, ¶36. Whether a trial court has jurisdiction to entertain an untimely or successive
postconviction petition is a question of law reviewed de novo. Id. However, the decision
to deny a postconviction petition without an evidentiary hearing is reviewed for an abuse
of discretion. State v. Lichtenwalter, 2021-Ohio-1394, ¶45 (5th Dist.). Accordingly, we
review de novo whether the appellant satisfied R.C. 2953.23, and we review the trial
court’s denial of a hearing for abuse of discretion. Again, an abuse of discretion implies
more than an error of law or judgment; instead, it connotes that the trial court’s attitude
is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio
St.3d 217, 219. ANALYSIS
{¶31} R.C. 2953.21 governs petitions for postconviction relief. R.C. 2953.23(A)(1)
requires, in pertinent part, that the petitioner must show that he was unavoidably
prevented from discovery of the facts upon which he relies. The petitioner must also show,
by clear and convincing evidence, that but for constitutional error at trial, no reasonable
factfinder would have found him guilty.
{¶32} The appellant’s petition was successive. Accordingly, the trial court could
not entertain it unless the appellant satisfied R.C. 2953.23. The trial court concluded that
he failed to do so.
{¶33} The appellant first argues that he was unavoidably prevented from
discovering the facts upon which his constitutional claims depend. His argument again
rests primarily on the reports of Dr. Guertin and Dr. Ophoven, the medical literature
concerning suspected child sexual abuse, and the claim that trial counsel failed to consult
or present appropriate experts.
{¶34} For the reasons discussed in the first two assignments of error, the expert
reports are not newly discovered facts. They are opinions formed after trial based on a
review of existing case materials. R.C. 2953.23(A)(1)(a) speaks in terms of the discovery
of facts, not the later discovery of a more favorable expert, a more persuasive litigation
theory, or a different interpretation of evidence known at trial. State v. Herring, 2007-
Ohio-3174, ¶26 (7th Dist.); State v. Wilson, 2009-Ohio-2347, ¶¶16-17 (9th Dist.). The
constitutional framing of the appellant’s claim does not eliminate the statute’s
jurisdictional threshold.
{¶35} The appellant maintains that his ineffective-assistance claim could not have
been discovered earlier because trial counsel failed to consult proper experts. But the factual basis for that claim was either known or reasonably knowable long before the
present petition. The appellant knew the State’s medical evidence was central to the
prosecution, knew who testified for the defense, knew the scope of Dr. Spitz’s testimony,
and knew the jury had credited the State’s theory over the defense theory. To the extent
the appellant believed trial counsel should have obtained additional expert assistance,
that assertion does not depend upon newly discovered facts that were unavailable for
more than sixteen years.
{¶36} Nor do the medical guidelines and literature on which the appellant relies
establish jurisdiction under R.C. 2953.23. Although the appellant characterizes those
materials as “updated” guidance, he has not shown that they announced a scientific
principle, repudiated a previously accepted medical standard, or reflected a posttrial shift
in scientific understanding comparable to the change discussed in Grad. Rather, the
record shows that the materials function as a summary or application of medical
principles and recommendations, not as a new scientific test, newly discovered fact, or
repudiation of a previously accepted medical standard. A later compilation of existing
guidance is not a newly discovered fact. At most, it supplies additional support for the
appellant’s current experts’ criticism of the State’s trial testimony, but it does not
demonstrate that the appellant was unavoidably prevented from discovering the factual
basis of his claim.
{¶37} To the extent the appellant’s petition also raised related constitutional
claims, including due process, cumulative error, or claims premised on trial counsel’s
alleged failure to object, cross-examine, consult experts, or otherwise challenge the State’s
medical evidence, those claims do not alter the jurisdictional analysis. The trial court
could not entertain a successive petition unless the appellant first satisfied R.C. 2953.23. Because the appellant failed to establish that he was unavoidably prevented from
discovering the facts upon which he relied, the trial court was not required to reach each
constitutional theory on the merits.
{¶38} The appellant also fails to satisfy R.C. 2953.23(A)(1)(b), which states:
The petitioner shows by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have found the
petitioner guilty of the offense of which the petitioner was convicted or, if
the claim challenges a sentence of death that, but for constitutional error at
the sentencing hearing, no reasonable factfinder would have found the
petitioner eligible for the death sentence.
{¶39} Even if the new reports cast doubt on aspects of the State’s medical
evidence, the statute required the appellant to show by clear and convincing evidence
that, but for constitutional error at trial, no reasonable factfinder would have found him
guilty. The trial court was not required to accept the new reports as conclusive. The
original jury heard expert testimony from both sides. Dr. Spitz disputed the State’s theory.
The jury nevertheless found the appellant guilty.
{¶40} Further, the appellant’s argument does not account for the entire trial
record. The State presented evidence beyond the challenged medical testimony, including
evidence concerning the appellant’s opportunity, his being the last person to physically
touch the child before she was found unresponsive, the circumstances in which the child
was found, the blood evidence, and the appellant’s statements and conduct after the
child’s death. The appellant’s current experts offer additional impeachment and
alternative interpretations of the medical evidence, but competing expert opinions do not establish that no reasonable factfinder could have found the appellant guilty when
considering the trial record as a whole.
{¶41} The appellant further contends that the trial court should have held a
hearing before dismissing the petition. A hearing is not required when the petition,
supporting materials, and record do not establish the jurisdictional requirements of R.C.
2953.23.
{¶42} Accordingly, we find the appellant failed to satisfy the jurisdictional
requirements of R.C. 2953.23 and that the trial court did not abuse its discretion in
dismissing the appellant’s petition for postconviction relief without a hearing.
{¶43} The appellant’s third assignment of error is overruled.
CONCLUSION
{¶44} For the foregoing reasons, the judgment of the Stark County Court of
Common Pleas is affirmed.
{¶45} Costs to the appellant.
By: Baldwin, P.J.
Popham, J. and
Gormley, J. concur.