State v. Parsons

2025 Ohio 4626

Opinion

[Cite as State v. Parsons, 2025-Ohio-4626.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY

STATE OF OHIO, CASE NO. 7-25-01

PLAINTIFF-APPELLEE,

v. OPINION AND CULLEN PARSONS, JUDGMENT ENTRY DEFENDANT-APPELLANT.

Appeal from Henry County Common Pleas Court Trial Court No. 15CR082

Judgment Affirmed

Date of Decision: October 6, 2025

APPEARANCES:

Michael H. Stahl and Michael G. Aird for Appellant

Gwen Howe-Gebers for Appellee Case No. 7-25-01

ZIMMERMAN, J.

{¶1} Defendant-appellant, Cullen Parsons (“Parsons”), appeals the January

7, 2025 judgment entry of the Henry County Court of Common Pleas, which

partially denied his motion for leave for a new trial. We affirm.

{¶2} On March 9, 2016, Parsons was convicted of attempted murder with a

firearm specification, felonious assault with a firearm specification, and improperly

handling firearms in a motor vehicle and sentenced to a cumulative term of 12 years

in prison. Parsons directly appealed the trial court’s judgment entry of sentence.1

In his direct appeal, we affirmed the judgment of the trial court, but vacated

Parsons’s sentence and remanded the case for proper sentencing after concluding

that the trial court erred by sentencing Parsons to a term of imprisonment as to each

of the three offenses after the trial court determined that the offenses were allied

offenses of similar import. The trial court properly resentenced Parsons on August

22, 2018.

{¶3} Following his direct appeal, Parsons filed several post-conviction

motions, including motions for leave to file motions for a new trial and petitions for

1 In Parsons’s direct appeal from his convictions and sentence, this court recited much of the factual and procedural background of this case, and we will not duplicate those efforts here. See State v. Parsons, 2017- Ohio-1315, (3d Dist.).

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post-conviction relief. These motions were denied by the trial court and affirmed

by this court.

{¶4} On March 20, 2023, Parsons filed a motion for leave to file a motion

for a new trial. This motion was based on newly discovered evidence related to

jailhouse informant Rolando Valle (“Valle”). According to Parsons, Valle’s

testimony at trial, which linked Parsons to the shooting, was a fabrication intended

to help Valle get a more favorable deal in his own criminal case. Relevantly, the

evidence that Parsons directed the trial court to includes Valle’s cell-assignment

records from the Corrections Center of Northwest Ohio (“CCNO”), which allegedly

show that he and Parsons were not in the same unit when Valle claims to have

engaged in a conversation with Parsons about the crime. The other new evidence

consists of a transcript and an audio recording of a September 17, 2015 interview

between Valle, the Multi-Area Narcotics (“MAN”) unit, and the Defiance County

Prosecutor, as well as a September 18, 2015 MAN unit report detailing this

interview.

{¶5} Following a hearing on July 20, 2023, the trial court denied Parsons’s

motion for leave to file a motion for a new trial after concluding that Parsons was

not unavoidably prevented from discovering the cell-assignment records because

the State had no obligation to provide them under the criminal rules, and Parsons

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should have sought them via subpoena. The trial court also concluded that, even if

the evidence was suppressed, it would not have changed the outcome of his trial.

{¶6} On September 3, 2024, this court reversed the decision of the trial court

after determining that the trial court applied the wrong legal standard. The case was

remanded to the trial court to reconsider the motion under the correct legal standard.

{¶7} Following remand of the case to the trial court, the trial court partially

granted Parsons’s motion for leave to file a motion for a new trial on January 7,

2025 but only as to the MAN unit audio recording, transcript, and report. The trial

court determined that Parsons was unavoidably prevented from discovering this

evidence since the State itself was unaware of its existence. However, the trial court

denied Parsons’s motion as it related to Valle’s CCNO cell-assignment records,

maintaining that these records “were known to have existed and are not required to

be provided under Crim. R. 16.” (Doc. No. 132).

{¶8} Thereafter, on January 15, 2025, Parsons filed a motion for a new trial

based on this new evidence. The State filed a memorandum in opposition to

Parsons’s motion for a new trial on January 27, 2025. Parsons filed his reply on

February 3, 2025. However, the trial court stayed consideration of Parsons’s motion

for a new trial pending the outcome of this appeal.

{¶9} On February 6, 2025, Parsons filed his notice of appeal from the trial

court’s January 7, 2025 entry. He raises one assignment of error for our review.

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Assignment of Error

The trial court erred when it found that Mr. Parsons was not unavoidably prevented from discovering the cell-assignment records of jailhouse informant Rolando Valle.

{¶10} In his assignment of error, Parsons argues that the trial court erred by

partially denying his motion for leave to file a motion for a new trial because he

contends that he was unavoidably prevented from discovering the CCNO cell-

assignment records for Valle. Specifically, Parsons contends that he was

unavoidably prevented from discovering this evidence because the State improperly

withheld the cell-assignment records in violation of Brady v. Maryland. 373 U.S.

83 (1963).

Standard of Review

{¶11} A trial court’s decision granting or denying a motion for leave to file

a delayed motion for new trial is reviewed for an abuse of discretion. State v.

Anderson, 2012-Ohio-4733, ¶ 9 (10th Dist.). An abuse of discretion suggests that a

decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio

St.2d 151, 157-158 (1980).

Analysis

{¶12} Motions for a new trial are governed by Crim.R. 33(A), which

provides, in relevant part, that a trial court may grant a new trial “[w]hen new

evidence material to the defense is discovered which the defendant could not with

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reasonable diligence have discovered and produced at the trial.” Crim.R. 33(A)(6).

Crim.R. 33(B) sets forth the timing requirements for new-trial motions and

provides, in its relevant part:

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.

{¶13} “Accordingly, a party may not seek a new trial on the basis of newly

discovered evidence after the 120-day time limit unless he can demonstrate that he

was unavoidably prevented from discovering the new evidence within the time

limit.” State v. Keith, 2011-Ohio-407, ¶ 39 (3d Dist.), citing Crim.R. 33(B). “‘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.’” Id., quoting State v. Lee, 2005-Ohio-6374, ¶

8 (10th Dist.). “The ‘unavoidably prevented’ requirement can also be met by

establishing that the state suppressed the evidence he is relying on to seek a new

trial.” State v. Coley, 2023-Ohio-4453, ¶ 15 (6th Dist.). In other words, for a motion

for a new trial based on newly discovered evidence, a defendant may make the

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required showing that he or she was unavoidably prevented from timely filing by

either establishing that the prosecution suppressed the evidence (a Brady violation)

or by demonstrating they were unaware of the evidence and could not have

discovered it through the exercise of reasonable diligence. State v. Johnson, 2024-

Ohio-134, ¶ 18.

{¶14} “In order to be able to file a motion for a new trial based on newly

discovered evidence beyond the 120 days prescribed in the above rule, a petitioner

must first file a motion for leave, showing by ‘clear and convincing proof that he

has been unavoidably prevented from filing a motion in a timely fashion.’” Keith

at ¶ 40, quoting State v. Graham, 2006-Ohio-352, ¶ 10 (3d Dist.).

{¶15} Since Parsons was convicted in 2016, he filed a motion for leave

arguing that he was unavoidably prevented from timely filing his motion for a new

trial. As clear and convincing proof that he was unavoidably prevented from timely

filing his motion, Parsons argued that the State suppressed key evidence in violation

of Brady. This suppressed evidence, which Parsons contends that he discovered

later, included Valle’s cell-assignment records from CCNO, a transcript and audio

recording of a MAN unit interview with Valle, and a MAN unit report detailing that

interview. Parsons argued that this evidence was material and favorable to his

defense, and because the State withheld it, he could not have discovered it within

the prescribed time.

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{¶16} In its January 7, 2025 judgment entry, the trial court granted Parsons’s

motion for leave to file a new trial as to the MAN unit interview and report, but not

as to Valle’s cell-assignment records. The trial court reasoned that, while the MAN

unit interview and report were undiscovered by the prosecution and therefore

Parsons was “unavoidably prevented” from obtaining them, the cell-assignment

records were “known to have existed” and were not required to be provided under

Crim.R. 16. (Doc. No. 132). Specifically, the trial court concluded that Parsons

had every opportunity to discover Valle’s cell-assignment records himself through

reasonable diligence and a subpoena.

{¶17} On appeal, Parsons argues the trial court abused its discretion by

denying him access to Valle’s cell-assignment records because these records were

withheld by the State and were materially exculpatory. Parsons contends that,

because the evidence was suppressed by the State, he was unavoidably prevented

from discovering it and therefore should be granted leave to file a motion for a new

trial based on a Brady violation, regardless of whether he exercised reasonable

diligence in trying to find the evidence sooner.

{¶18} “Under Brady, the State violates a defendant’s right to due process if

it withholds evidence that is favorable to the defense and material to the defendant’s

guilt or punishment.” Smith v. Cain, 565 U.S. 73, 75 (2012). The Brady rule applies

not only to evidence known directly to the prosecutor, but also to evidence known

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only to police investigators and imposes on the prosecutor a “‘duty to learn of any

favorable evidence known to the others acting on the government’s behalf in [the]

case.’” Strickler v. Greene, 527 U.S. 263, 280-281 (1999), quoting Kyles v. Whitley,

514 U.S. 419, 437-438 (1995). “The duty to disclose such evidence was later

extended to ‘encompass[] impeachment evidence as well as exculpatory evidence’

and to apply even when ‘there has been no request by the accused.’” State v.

Bingham, 2024-Ohio-2861, ¶ 23 (3d Dist.), quoting Strickler at 280.

{¶19} “There are three components of a true Brady violation: The evidence

at issue must be favorable to the accused, either because it is exculpatory, or because

it is impeaching; that evidence must have been suppressed by the State, either

willfully or inadvertently; and prejudice must have ensued.” Strickler at 281-282.

“Favorable evidence is ‘material’ if there is a reasonable probability that the result

of the proceeding would have been different had the evidence been disclosed to the

defense.” Bingham at ¶ 25.

{¶20} “[T]he defendant ‘bears the burden of proving a Brady violation and

consequent denial of due process.’” State v. Dodson, 2023-Ohio-701, ¶ 30 (10th

Dist.), quoting State v. Moore, 2013-Ohio-3365, ¶ 43 (10th Dist.). Importantly, ‘[a]

Brady violation may not rest upon a claim that is “purely speculative.”’” Id.,

quoting Moore at ¶ 43, quoting State v. Hanna, 95 Ohio St.3d 285, 296 (2002).

“‘“The mere possibility that an item of undisclosed information might have helped

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the defense, or might have affected the outcome of the trial, does not establish

‘materiality’ in the constitutional sense.”’” (Emphasis in original.) Id., quoting

State v. Lawson, 64 Ohio St.3d 336, 343 (1992), quoting United States v. Agurs, 427

U.S. 97, 109-110 (1976).

{¶21} “However, the defendant is not required to show that disclosure of the

evidence would have resulted in his acquittal or that, after discounting the

inculpatory evidence in light of the undisclosed evidence, there would not have been

sufficient evidence left to convict.” Bingham at ¶ 25. “Instead, the defendant must

prove that, in the context of the entire record, suppression of the undisclosed

evidence undermines confidence in the outcome of the proceeding.” Id., citing State

v. Bethel, 2022-Ohio-783, ¶ 32, 34 (noting that suppressed evidence must be

considered collectively, not item by item, and materiality of suppressed evidence

must be viewed in the context of the entire record).

{¶22} In this case, we conclude that Parsons did not demonstrate that the

State’s failure to provide Valle’s CCNO cell-assignment records constituted a Brady

violation. Primarily, Parsons did not demonstrate that the State improperly withheld

Valle’s cell-assignment records because the information was readily available or

accessible to him through other means.

{¶23} Decisively, “[i]f the defendant knows of essential facts that allow him

to take advantage of the information, or has access to the information through

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another source, the state’s failure to disclose does not amount to a constitutional

violation under Brady.” State v. Jury, 2022-Ohio-4419, ¶ 20 (6th Dist.), citing State

v. Ketterer, 2010-Ohio-3831, ¶ 36. The State cannot suppress evidentiary materials

under Brady when the subject information is publicly available or not under the

State’s control. State v. Duncan, 2024-Ohio-5610, ¶ 43 (10th Dist.). In sum,

“[t]here is no need to require the state to ‘disclose’ material that is readily available

to the defense.” State v. McGuire, 2018-Ohio-1390, ¶ 24 (8th Dist.).

{¶24} Here, even though Parsons contends that the records were in the

State’s possession and would have shown that Valle and Parsons were not housed

together at the time of the alleged conversation, this information was not withheld

in violation of Brady. Indeed, Parsons would have known the essential facts to

pursue the information. Specifically, Parsons knew that Valle would be testifying

at trial, and he knew whether he had been housed with Valle and whether the alleged

conversation had occurred, giving him sufficient information to investigate and

subpoena the records himself. See Jury at ¶ 15 (concluding that there was no Brady

violation where the defendant could have subpoenaed the evidence himself); State

v. Hughes, 1993 WL 453699, *8 (8th Dist. Nov. 4, 1993) (“Brady does not require

the government to disclose evidence available to the defense from other sources.”).

{¶25} Moreover, even assuming without deciding that Valle’s cell-

assignment records should have been disclosed, Parsons did not demonstrate that

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those records were material. See Bingham, 2024-Ohio-2861, at ¶ 26 (3d Dist.).

Importantly, Valle’s credibility was impeached at trial when he testified both that

he heard Parsons confess in a group setting and that he had read about the shooting

in the newspaper. Valle’s impeachment was further supported by the fact that the

trier of fact was made aware that he was cooperating in hopes of receiving a

favorable outcome in his own criminal case. The trier of fact was therefore

cognizant that Valle’s testimony could have been influenced by outside information

and that his credibility was open to question.

{¶26} Moreover, while finding Parsons guilty, the trial court reviewed the

evidence it considered important, stating that “some of the critical pieces of

evidence” were the timeline of events, the DNA on the handgun’s trigger and

handle, Parsons being seen outside, and the place in which law enforcement located

the gun used in the shooting. (Mar. 9, 2016 Tr. at 2-3). Importantly, absent from

this analysis of critical evidence is Valle’s testimony. Thus, it is evident that the

trial court did not primarily rely on his testimony to find Parsons guilty.

{¶27} Consequently, the additional impeachment value of the cell-

assignment records does not create a reasonable probability of a different outcome

in this case. Therefore, given Valle’s already impeached credibility, along with

the balance of the State’s evidence presented at trial, the omission of the cell-

assignment records does not undermine confidence in Parsons’s conviction.

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{¶28} Accordingly, we conclude that Parsons did not carry his burden of

proving a Brady violation. See State v. Hill, 2023-Ohio-1954, ¶ 35 (10th Dist.).

Thus, Parsons was not unavoidably prevented from discovering Valle’s cell-

assignment records. Therefore, the trial court did not abuse its discretion by

partially denying Parsons’s motion for leave to file a motion for new trial based on

Valle’s cell-assignment records. See Jury, 2022-Ohio-4419, at ¶ 47 (6th Dist.).

{¶29} Parsons’s assignment of error is overruled.

{¶30} Having found no error prejudicial to the appellants herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

WALDICK, P.J. and WILLAMOWSKI, J., concur.

/hls

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JUDGMENT ENTRY

For the reasons stated in the opinion of this Court, the assignment of error is

overruled and it is the judgment and order of this Court that the judgment of the trial

court is affirmed with costs assessed to Appellant for which judgment is hereby

rendered. The cause is hereby remanded to the trial court for execution of the

judgment for costs.

It is further ordered that the Clerk of this Court certify a copy of this Court’s

judgment entry and opinion to the trial court as the mandate prescribed by App.R.

27; and serve a copy of this Court’s judgment entry and opinion on each party to the

proceedings and note the date of service in the docket. See App.R. 30.

William R. Zimmerman, Judge

Juergen A. Waldick, Judge

John R. Willamowski, Judge

DATED: /hls

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