[Cite as State v. Thompson,

.]

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

STATE OF OHIO : : Appellate Case No. 25016 Plaintiff-Appellee : : Trial Court Case No. 06-CR-3214 v. : : BRANDON A. THOMPSON : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 19th day of October, 2012.

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MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. #0070162, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

PAUL D. GILBERT, Atty. Reg. #0010129, 120 West Second Street, Suite 503, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

HALL, J.

{¶ 1} Brandon M. Thompson appeals from the trial court’s denial of his Crim.R. 33 motion

for leave to move for a new trial.

{¶ 2} In his sole assignment of error, Thompson contends the trial court erred in overruling

his motion. He argues that the motion and accompanying affidavits met the legal standard to obtain 2

leave to seek a new trial. At a minimum, he asserts that he was entitled to a hearing on the issue.

{¶ 3} The record reflects that Thompson was convicted and sentenced in October 2008 on

one count of recklessly abusing a child under the age of eighteen resulting in serious physical harm, a

second-degree felony. The conviction stemmed from a head injury sustained by the infant son of

Thompson’s girlfriend, who resided with him. After paramedics were called to Thompson’s home, the

infant was taken to the hospital and diagnosed with life-threatening bleeding on the brain. The injury

required emergency surgery, hospitalization for two weeks, and seven weeks of care at a rehabilitation

center. A jury rejected Thompson’s argument that the injury had been caused by a fall from a playpen

and found him guilty of abuse. Following his conviction, the trial court imposed a six-year prison

sentence. This court affirmed. See State v. Thompson, 2d Dist. Montgomery No. 22984,

.

{¶ 4} In November 2011, Thompson filed his Crim.R. 33 motion for leave to move for a

new trial. (Doc. #20). In support, he claimed to possess newly discovered evidence that he had been

unavoidably prevented from discovering within 180 days of the jury’s verdict. The evidence consisted

of expert opinions from two medical doctors, Patrick D. Barnes and Jan E. Leestma. In an affidavit

accompanying the motion, Barnes opined that the infant’s medical records and brain-imaging exams

did not distinguish accidental from non-accidental injury, did not account for the possibility of

“predisposing or complicating conditions,” and lacked precise “timing parameters” as to when the

injury occurred. (Doc. #22). Leestma provided a similar affidavit and opined, among other things, that a

fall from a playpen could have exacerbated a prior subdural hemorrhage. (Doc. #23). Finally,

Thompson supported his motion with an affidavit from his mother, Linda Thompson. She averred that

she had acted diligently in discovering the writings of Barnes and Leestma, contacting the two doctors,

providing them with medical records, and obtaining their affidavits. (Doc. #21).

{¶ 5} On January 3, 2012, the trial court overruled Thompson’s motion. It concluded that he

knew or should have known about Barnes and Leestma before his trial. The trial court noted that 3

defense counsel had contacted a third doctor, John Jerome Plunkett, prior to trial regarding

expert-witness review and that Plunkett had co-written an article about infant head injury with Barnes

and Leestma. The trial court also noted that there was a material difference between being unaware of

information and being unavoidably prevented from discovering that information in the exercise of due

diligence. (Doc. #29).

{¶ 6} On appeal, Thompson contends the trial court unreasonably presumed, based on

defense counsel’s familiarity with Dr. Plunkett, that he should have known about Dr. Barnes, Dr.

Leestma, and the opinions they held. Thompson asserts that the trial court engaged in pure speculation

to find that he could have obtained his new evidence earlier. Thompson insists that he had no

knowledge of Dr. Barnes, Dr. Leestma, or the opinions they held until his mother obtained their

affidavits. He also maintains that, for purposes of his motion for leave, he was not required to do

anything more than allege a lack of prior knowledge of the new evidence. At a minimum, he contends

the trial court should have held a hearing to determine whether he was unavoidably prevented from

timely discovering his new evidence.

{¶ 7} Upon review, we find no error in the trial court’s ruling. A motion for a new trial

based upon newly discovered evidence must be filed within 120 days after the verdict was rendered,

unless it appears by clear and convincing proof that the movant was unavoidably prevented from

discovering the new evidence, in which case the motion for a new trial must be filed within seven days

after an order of the court finding that the defendant was unavoidably prevented from discovering the

new evidence within the 120-day period. Crim.R. 33(B). “[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 the ground supporting the motion

for a new trial within the time prescribed for filing the motion for new trial in the exercise of reasonable

diligence.” State v. Walden,

(10th Dist. 1984). We review a trial court’s

ruling on a Crim.R. 33 motion for an abuse of discretion. State v. McCoy, 2d Dist. Montgomery No. 4

21032,

.

{¶ 8} Initially, we note that the defendant’s motion was filed three years after his conviction

and sentencing, five years after his indictment and five and a half years after the injuries to the child.

Even if we accept that Thompson was unaware of the existence of Dr. Barnes, Dr. Leestma, or the

opinions they held until shortly before he filed his motion, the trial court correctly pointed out the

material difference between being unaware of certain information and being unavoidably prevented

from discovering it. State v. Warwick, 2d Dist. Champaign No. 01CA33,

, *3. The

affidavits submitted by Dr. Barnes and Dr. Leestma establish that they have been practicing medicine

for decades, are widely published, and are linked to Dr. Plunkett as co-authors of an article about infant

head injury. We note too that the opinions in the affidavits submitted by Dr. Barnes and Dr. Leestma

are not based on any new information. Both doctors examined the infant’s existing medical records and

opined that the cause of the head injury could not be determined for various reasons. But the infant’s

medical records are not new, and the medical literature upon which the doctors relied in reaching their

conclusions is not new. The only thing “newly discovered” is Thompson’s awareness of these two

particular doctors and the opinions they now hold. We see no abuse of discretion in the trial court’s

finding that Thompson was not unavoidably prevented from discovering these expert witnesses and

having them re-examine the medical evidence within the 120-day time limit for seeking a new trial.

{¶ 9} We also are unpersuaded by Thompson’s claim that the trial court was required to

hold a hearing before denying his motion. Thompson cites several cases for the proposition that “[a]

defendant is entitled to a hearing on his motion for leave if he submits ‘documents that on their face

support his claim that he was unavoidably prevented from timely discovering the evidence’ at issue.”

State v Lanier, 2d Dist. Clark No. 2009 CA 84,

, ¶16 (citations omitted); see also State

v. McConnell,

,

,

(2d Dist.); State v.

Mitchell, 2d Dist. Montgomery No. 19816, 2004-Ohio459, ¶19; State v. York, 2d Dist. Greene No.

99-CA-54,

, *2 (Feb. 18, 2000). [Cite as State v. Thompson,

.] {¶ 10} The only document Thompson submitted addressing the “unavoidably prevented”

issue was his mother’s affidavit. It established that she did not discover Dr. Barnes, Dr. Leestma, and

the opinions they now hold until shortly before Thompson filed his motion. On its face, however, the

affidavit did not necessarily support a claim that Thompson was “unavoidably prevented” from

discovering those doctors or their opinions earlier. Although Thompson’s mother made this claim, we

are only required to accept her factual allegations as true. Mitchell, at ¶19.

{¶ 11} As set forth above, Dr. Barnes and Dr. Leestma have been practicing medicine for

decades, they are widely published, and there appears to be nothing novel about the opinions contained

in their affidavits. The doctors opined that the infant’s test results did not reveal the cause of the head

injury or the precise timing of the injury. They also opined that the injury could have been caused by a

fall from a playpen, which could have exacerbated an earlier injury. It was not an abuse of discretion

for the trial court to conclude, without the need for a hearing, that Thompson could have discovered

these opinions within the required 120-day time period.

{¶ 12} 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. 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 in the ordinary case. If the rule were otherwise, a convicted defendant

perpetually could ferret out new expert witnesses to re-examine the evidence with the hope of obtaining

a different result.

{¶ 13} Based on the reasoning set forth above, Thompson’s assignment of error is overruled.

The judgment of the Montgomery County Common Pleas Court is affirmed.

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GRADY, P.J., and DONOVAN, J., concur.

Copies mailed to:

Mathias H. Heck Kirsten A. Brandt 6

Paul D. Gilbert Hon. Steven K. Dankof