State v. Trigg

2026 Ohio 585

• Court: Ohio Court of Appeals
• Decided: February 20, 2026
• Docket: 30510
• Status: Published

Opinion

[Cite as State v. Trigg, 2026-Ohio-585.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : C.A. No. 30510 Appellee : : Trial Court Case No. 2022 CR 01448 v. : : (Criminal Appeal from Common Pleas JOHNNY LEE TRIGG : Court) : Appellant : FINAL JUDGMENT ENTRY & : OPINION

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Pursuant to the opinion of this court rendered on February 20, 2026, the judgment of

the trial court is affirmed.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately

serve notice of this judgment upon all parties and make a note in the docket of the service.

Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified

copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note

the service on the appellate docket.

For the court,

MICHAEL L. TUCKER, JUDGE

EPLEY, J., and HANSEMAN, J., concur. OPINION MONTGOMERY C.A. No. 30510

JOHNNY LEE TRIGG, Appellant, Pro Se ANDREW T. FRENCH, Attorney for Appellee

TUCKER, J.

{¶ 1} Johnny Lee Trigg appeals pro se from the trial court’s decision and entry

denying his petition for postconviction relief and overruling his motion for leave to file a

delayed new-trial motion.

{¶ 2} Trigg contends the trial court erred by denying his petition for postconviction

relief without holding an evidentiary hearing. He also claims the trial court erred by “merging”

his motion for leave to file a delayed new-trial motion into his postconviction relief petition

and denying leave based on res judicata.

{¶ 3} For the reasons set forth below, we affirm the trial court’s judgment.

I. Background

{¶ 4} A jury convicted Trigg of felony murder with a firearm specification and having

a weapon while under disability. The offenses involved Trigg shooting the victim in the back

as the victim fled following an argument. On October 6, 2023, this court affirmed the

convictions on direct appeal. Among other things, we overruled assignments of error alleging

ineffective assistance of counsel and challenging the trial court’s failure to instruct the jury

on self-defense. Even accepting Trigg’s claim that he feared the victim and that the victim

first had attempted to fire a gun at him, we held that Trigg’s use of deadly force while the

victim was retreating negated the possibility of self-defense. State v. Trigg, 2023-Ohio-3660,

¶ 35-36 (2d Dist.). Considering the nature of the shooting, we also found no prejudice arising

from defense counsel’s handling of the self-defense issue. Id. at ¶ 43.

2 {¶ 5} While the direct appeal was pending, Trigg filed a pro se August 29, 2023

petition for postconviction relief under R.C. 2953.21 with a request for an evidentiary hearing.

He then filed an amended petition on September 18, 2023, again requesting an evidentiary

hearing. He alleged error in the trial court’s exclusion of evidence related to the victim’s

reputation for violence and prior instances of violent conduct. He argued that this evidence

would have aided his self-defense claim. Trigg additionally alleged ineffective assistance of

counsel based on a failure to call two witnesses to corroborate the self-defense claim.

Finally, he alleged prosecutorial misconduct for failing to disclose a witness’s police

statement.

{¶ 6} Seven months after we affirmed Trigg’s convictions, on May 7, 2024, he filed a

motion for leave to file a delayed new-trial motion under Crim.R. 33. In support, he argued

that the trial court had erred by advising him that his testimony was necessary if he wanted

to seek a self-defense instruction. He asserted that the trial court’s statement was erroneous

and that it violated due process, his right to a fair trial, and his privilege against self-

incrimination. Trigg asked the trial court “to grant the defendant’s Motion for Leave to file a

Delayed Motion for New Trial because the defendant’s right to a fair and impartial trial was

violated under an abuse of discretion standard and severely prejudiced the defendant.”

{¶ 7} Thereafter, on September 10, 2024, Trigg moved for an evidentiary hearing on

his motion for leave to file a delayed new-trial motion. He claimed entitlement to a hearing

based on his submission of documents showing that he had been unavoidably prevented

from timely discovering certain evidence. The documents Trigg submitted included

(1) affidavits from two of his cousins to support a self-defense claim, (2) one page of a

medical record indicating that he once had been treated for an assault, and (3) printed

records of criminal cases involving the victim as the defendant.

3 {¶ 8} On May 14, 2025, having not conducted an evidentiary hearing, the trial court

denied Trigg’s petition for postconviction relief and overruled his motion for leave to file a

delayed new-trial motion. Regarding postconviction relief, the trial court found evidence of

the victim’s violent character and prior violent acts irrelevant to the self-defense claim

because Trigg admittedly had shot the fleeing victim in the back. The trial court also found

no ineffective assistance based on defense counsel’s failure to call the two witnesses

because neither witness saw the shooting. Finally, the trial court found that Trigg’s trial

counsel in fact had received a police report containing the witness’s statement.

{¶ 9} As for Trigg’s motion for leave to file a delayed new-trial motion, the trial court

noted that his claim about being told he needed to testify to argue self-defense did not

require evidence outside of the record. Indeed, Trigg’s trial transcript contained the

challenged statement by the trial court judge, who advised him as follows: “In addition,

you’ve raised a self defense argument that requires evidence from you, which means you

testify, that’s really necessary for a self-defense, and your prior record is going to come in.

You understand that?” Tr. 35. The trial court reasoned that Trigg could have raised this issue

on direct appeal. Therefore, it concluded that res judicata precluded him from seeking a new

trial based on being deprived of a fair trial by being compelled to testify. Trigg timely

appealed, advancing two assignments of error.

II. Analysis

{¶ 10} The first assignment of error states:

TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT’S

POST-CONVICTION WITHOUT EVIDENTIARY HEARING.

{¶ 11} Trigg challenges the trial court’s failure to hold an evidentiary hearing prior to

denying his petition for postconviction relief. He argues that a hearing was necessary for the

4 trial court properly to evaluate his postconviction claims regarding (1) exclusion of evidence

related to the victim’s reputation for violence and prior instances of violent conduct,

(2) defense counsel’s failure to call his two cousins as witnesses to support his self-defense

claim, and (3) prosecutorial misconduct for failing to disclose a witness’s police statement.

Trigg primarily argues that a hearing was necessary because the judge who denied

postconviction relief was not the judge who presided over his jury trial.

{¶ 12} Upon review, we see no error in the trial court’s denial of postconviction relief

without an evidentiary hearing. A hearing is not required simply because the judge reviewing

a petition is not the judge who presided over trial. When assessing the credibility of affidavits

in postconviction proceedings, a relevant consideration is whether the judge reviewing the

postconviction petition also presided over trial. State v. Thrasher, 2007-Ohio-674, ¶ 12-13

(2d Dist.). But the mere fact that a postconviction petition is reviewed by a different judge

does not require a hearing. Rather, the need for a hearing depends on whether the petition

and supporting materials present sufficient operative facts to establish substantive grounds

for relief. State v. Scott, 2025-Ohio-300, ¶ 27 (2d Dist.).

{¶ 13} Trigg asserts that the trial court did not address any of the factors relevant to

assessing the credibility of an affidavit accompanying a petition for postconviction relief. We

note, however, that the trial court also did not deny postconviction relief based on Trigg’s

supporting evidence lacking credibility. Rather, it found that evidence of the victim’s violent

character and prior violent acts did not advance a self-defense claim because Trigg admitted

having shot the victim in the back. The trial court also found no potential ineffective

assistance of counsel based on a failure to call witnesses who did not see the shooting.

Finally, the trial court found no potential postconviction claim grounded in prosecutorial

misconduct where the record established that defense counsel in fact received an allegedly

5 withheld witness statement. None of these findings required assessing the credibility of

Trigg’s postconviction materials. Moreover, Trigg does not challenge the correctness of

these findings on appeal. Accordingly, we overrule his first assignment of error.

{¶ 14} The second assignment of error states:

TRIAL COURT ABUSED ITS DISCRETION BY APPLYING RES JUDICATA

AFTER MERGING INDEPENDENT ARGUMENTS/MOTIONS BY

DEFENDANT.

{¶ 15} Trigg contends the trial court improperly addressed his motion for leave to file

a delayed new-trial motion in the context of his statutory petition for postconviction relief.

Rather than analyzing the two filings separately, he claims the trial court blended its analysis

and improperly applied res judicata to the issue raised in his motion for leave. Trigg then

reiterates his arguments about his rights being violated at trial when the trial court told him

he needed to testify to pursue a self-defense claim.

{¶ 16} Upon review, we find Trigg’s second assignment of error to be unpersuasive.

Under Crim.R. 33(A) a new trial may be granted for various reasons. Trigg appears to have

requested leave to seek a new trial under Crim.R. 33(A)(1), which authorizes a new trial

based on an “abuse of discretion by the court, because of which the defendant was

prevented from having a fair trial.” In his motion for leave, Trigg argued that the trial court

had abused its discretion and had deprived him of a fair trial by advising him that he was

required to testify if he wanted to argue self-defense. Under Crim.R. 33(B), Trigg was

required either to move for a new trial within 14 days of the jury’s verdict or to obtain leave

by presenting “clear and convincing proof” that he had been unavoidably prevented from

meeting the rule’s time requirement.

6 {¶ 17} Trigg did not move for a new trial within 14 days of the jury’s verdict. Instead,

he filed his motion for leave to file a delayed new-trial motion on May 7, 2024, long after his

trial in October 2022. In his motion, however, he made no attempt to explain or justify his

delay in seeking a new trial. His memorandum in support went straight to the merits of his

argument. He asserted that the trial court had abused its discretion and had violated due

process, his right to a fair trial, and his privilege against self-incrimination by telling him that

he needed to testify to pursue a self-defense claim. His concluding paragraph asked the trial

court to grant him leave to move for a new trial not because of any unavoidable delay but

“because the defendant’s right to a fair and impartial trial was violated under an abuse of

discretion standard and severely prejudiced the defendant.”

{¶ 18} The trial court overruled Trigg’s motion for leave to file a delayed new-trial

motion by noting that the issue he raised could have been raised on direct appeal. It

reasoned: “Here, Defendant’s claim is based upon facts and evidence in the record, i.e.

recorded statement made by the Court while addressing Defendant during the course of a

pre-trial hearing. On that basis, Defendant’s claim that he was somehow forced to testify by

the Court is barred by res judicata and therefore not properly before the Court.”

{¶ 19} “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 after it grants the motion for leave.” State v. Hatton, 2022-Ohio-3991, ¶ 30. “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.

{¶ 20} At first blush, the trial court appears to have violated the foregoing principle by

overruling Trigg’s motion for leave based on a “merits” determination that res judicata barred

7 his substantive argument. Nevertheless, we find a reversal unwarranted for four reasons.

First, the trial court’s finding that res judicata applied necessarily constituted an implicit

finding that Trigg had not been unavoidably prevented from filing a timely new-trial motion.

Given that his argument relied on evidence found in the record, it follows that he could not

have been unavoidably prevented from meeting the rule’s time requirement.

{¶ 21} Second, Trigg himself ignored the threshold issue of whether he had been

unavoidably prevented from filing a timely Crim.R. 33 motion, as his motion for leave

addressed only the merits of his argument.

{¶ 22} Third, Trigg’s motion for leave was devoid of any attempt to explain or justify

his delay in seeking a new trial. The present appeal does not involve whether a claimed

justification was sufficient or whether he presented “clear and convincing proof” of having

been unavoidably prevented from meeting the rule’s time requirement. Trigg made no

argument about being unavoidably prevented from filing a timely motion, and he presented

no proof whatsoever to support such a finding.

{¶ 23} Fourth, Trigg does not even appear to argue on appeal that the trial court erred

in denying him leave based on its assessment of the merits of his claim for a new trial.

Although he complains about the trial court “merging” its postconviction and new-trial

analysis, we see no argument in his brief about the trial court being limited to considering

whether he established by clear and convincing proof that he had been unavoidably

prevented from filing a timely new-trial motion. Trigg may not have raised this issue on

appeal because he made no such argument below. In any event, it is not this court’s role to

create an argument for a party. State v. Coogan, 2019-Ohio-3016, ¶ 14 (10th Dist.)

(recognizing that “an appellate court has no duty to create an argument on an appellant’s

behalf”).

8 {¶ 24} Regarding the trial court’s substantive finding that res judicata applied, we also

see no error. It is well settled that “[r]es judicata applies to motions for a new trial.” Hatton,

2022-Ohio-3991, at ¶ 22. The doctrine “precludes a convicted defendant ‘from raising and

litigating in any proceeding, except an appeal from that judgment, any defense or any

claimed lack of due process that was raised or could have been raised’ at trial or on direct

appeal.” Id., quoting State v. Szefcyk, 77 Ohio St.3d 93 (1996), syllabus. Here Trigg argued

in his motion for leave to seek a new trial that the trial court had abused its discretion and

had violated due process, his right to a fair trial, and his privilege against self-incrimination

by telling him he needed to testify to pursue a self-defense claim. The evidence required to

support this claim was found in Trigg’s trial transcript, and he could have raised the issue on

direct appeal. Therefore, the trial court correctly applied res judicata.

{¶ 25} Finally, we note that Trigg separately moved for a hearing after filing his motion

for leave to file a delayed new-trial motion. Accompanying his motion for a hearing were

affidavits from his two cousins. Trigg characterized the affidavits as newly discovered

evidence and argued that they supported a self-defense claim. But neither affiant professed

to have seen Trigg shoot the victim. As noted above, Trigg testified at trial and admitted that

he shot the fleeing victim in the back. Therefore, neither affidavit would have aided his self-

defense claim. We note too that neither affidavit addressed why Trigg’s untimeliness should

have been excused. Nor did Trigg’s motion for an evidentiary hearing explain how or when

he obtained the affidavits. Therefore, like his motion for leave to file a delayed new-trial

motion, his subsequent motion for a hearing on the issue made no attempt to explain or

justify his delay in seeking a new trial.

{¶ 26} For the foregoing reasons, the second assignment of error is overruled.

9 III. Conclusion

{¶ 27} The judgment of the Montgomery County Common Pleas Court is affirmed.

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EPLEY, J., and HANSEMAN, J., concur.