[Cite as State v. Gillispie,

.]

[Please see original opinion at

.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 24456 : v. : Trial Court Case No. 90-CR-2667 : ROGER DEAN GILLISPIE : Supreme Court Webcite No. : :

Defendant-Appellant : :

DECISION AND ENTRY June 28th , 2012

PER CURIAM.

{¶1} This matter is before the court on motions for reconsideration filed by

defendant-appellant Roger Dean Gillispie and by plaintiff-appellee State of Ohio.

Each party challenges certain aspects of our opinion in State v. Gillispie, 2d Dist.

Montgomery No. 24456,

.

{¶2} Gillispie maintains that paragraphs 44 and 45 of our opinion are

incorrect, and that we should omit reference to whether evidence pertaining to a

1990 attempted rape by Kevin Cobb in Fairfield, Ohio, is admissible under Evid.R.

404(B). The State contends that we improperly disregarded or minimized

evidence, and used improper standards when we reviewed the denial of Gillispie’s

motion for new trial. In addition, the State argues that there are certain incorrect 2

factual references in our opinion. We will consider the arguments of the parties

separately.

I. Evid. R. 404(B)

{¶3} In 1991, Gillispie was convicted of Rape, Kidnapping, Aggravated

Robbery, and Gross Sexual Imposition charges involving three victims, and was

sentenced to a total of not less than 22 years, but not more than 56 years in prison.

Gillispie filed various appeals and post-conviction motions in state court.

Gillispie’s most recent motion for new trial, filed in 2008, was denied without a

hearing. In an initial appeal, we reversed, concluding that Gillispie had presented

sufficient evidence regarding an alternate perpetrator, Kevin Cobb, to warrant a

hearing. State v. Gillispie, 2d Dist. Montgomery Nos. 22877, 22912,

. On remand, the trial court held a hearing and denied the motion

for new trial. We again reversed, concluding that the trial court had erred in

overruling Gillispie’s 2008 motion for new trial. Our opinion stated that:

Defendant-appellant Roger Gillispie appeals from an order of

the trial court denying his motion for a new trial. He contends that the

trial court abused its discretion both in holding that newly discovered

evidence regarding an alternative suspect is inadmissible hearsay, and

in finding that the evidence is not material to Gillispie's defense. We

conclude that the newly discovered evidence is not hearsay because it

is not offered for the truth of the matter asserted, and the evidence is

material to Gillispie's defense. We also conclude that the newly 3

discovered evidence has a strong probability of changing the outcome

of a new trial. Accordingly, the order of the trial court denying

Gillispie's motion for a new trial is Reversed, and this cause is

Remanded for a new trial. State v. Gillispie,

.

{¶4} The alternate suspect in question is an individual named Kevin Cobb,

and our opinion discusses various evidence relating to Cobb that was discovered

after Gillispie’s trial. Id. at ¶ 40-59. At paragraphs 44 and 45 of our opinion, we

mentioned evidence pertaining to Kevin Cobb’s 1990 arrest in Fairfield, Ohio. We

noted that:

It appears that the evidence regarding Cobb as an alternative

suspect began to be generated after retired Sergeant Fritz received an

anonymous call from a man identifying himself as an employee at

Lebanon Correctional Institute, who claimed that one of his co-workers

named Cobb “did those rapes.” Fritz confirmed that Cobb worked at

Lebanon Correctional in 1988. When Fritz ran Cobb's criminal record,

he learned that Cobb had been arrested by Fairfield, Ohio police in

1990, after he posed as a police officer and “arrested” a woman in a

public parking lot where she had exposed her breasts. The victim's

friend called the police immediately and was able to provide Cobb's

license plate number. The police found the victim at Cobb's

apartment before he had time to do more than handcuff her and push

her to the floor.

Pointing out the differences between the Fairfield crime and the 4

crimes for which Gillispie has been convicted, the trial court found that

the incident is not relevant to the rapes, and that the arrest would not

be admissible at a new trial. We conclude that the trial court properly

determined that this evidence would not be admissible under Evid. R.

404(B):

Other crimes, wrongs or acts. Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in

order to show action in conformity therewith. It may, however, be

admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or

accident. Gillispie,

.

{¶5} In his motion for reconsideration, Gillispie contends that we should strike

these two paragraphs from our opinion, because we failed to consider the

application of the “reverse 404(B) doctrine” and Holmes v. South Carolina,

,

,

(2006). The State contends that Gillisipie

should have raised this point on appeal.

{¶6} We note that the trial court did not discuss the reverse 404(B) doctrine

when it overruled Gillispie’s 2008 motion for new trial. The trial court stated that the

parties had “made much” of Evid. R. 404(B). However, the court did not either rely

on or reject the doctrine. The court stressed, instead, that “[a]fter a review of the

many cases cited by the parties, this Court has looked at the evidence in light of

Holmes v. South Carolina, and State v. Walker, supra, and finds, as stated above,

no nexus between Cobb and the acts of August 1988.” Decision, Order and Entry 5

Overruling Defendant’s Motion for New Trial, p. 7.

{¶7} In his initial appellate brief, Gillispie did not mention Evid.R. 404(B), but

argued that the various evidentiary matters pertaining to Cobb were neither remote

nor irrelevant. Gillipsie also argued that the evidence raised reasonable doubt, to

the extent that there is a strong probability that a jury would acquit Gillispie if it

reconsidered the case. The State, in its brief, also did not mention Evid.R. 404,

other than in passing, along with a general reference to Evid.R. 401, 402, and 403.

Notably, this discussion occurred in the context of Cobb’s comment about being a

contract killer, and the State’s contention that the comment was too remote in time

to be relevant. State’s Brief, p. 22.

{¶8} When discussing evidence pertaining to Cobb’s use of the name

“Roger,” the State acknowledged that in order for evidence that another party has

committed a crime to be admissible, the evidence “must tend to create a reasonable

doubt that the defendant committed the offense.” State’s Brief, p. 20, citing State v.

Walker, 5th Dist. Stark No. 2005-CA-00286,

. Again, the State

contended that the evidence was remote in time and was also of limited relevance.

In responding to the State’s brief, Gillispie focused on the fact that the new

evidence, considered in its totality, rather than as individual, discrete facts, raises a

strong probability that reasonable doubt would exist in a new trial. Thus, neither

side addressed the issue, probably because the trial court did not rely on the

reverse 404(B) doctrine when making its decision.

{¶9} The test generally applied to a motion for reconsideration is that it must

call the court’s attention to obvious errors in a decision or must raise issues that the 6

court either failed to consider or did not fully consider when the original decision was

made. Matthews v. Matthews,

,

(10th

Dist. 1981). “An application for reconsideration is not designed for use in instances

where a party simply disagrees with the conclusions reached and the logic used by

an appellate court. App.R. 26 provides a mechanism by which a party may prevent

miscarriages of justice that could arise when an appellate court makes an obvious

error or renders an unsupportable decision under the law.” State v. Owens,

,

(11th Dist. 1996).

{¶10} We conclude that the application of Evid.R. 404(B) should be

reconsidered, because it raises a point we failed to fully consider when our decision

was made. Paragraphs 44 and 45 of our opinion conclude, after merely citing the

content of Evid.R. 404(B), and without discussing the rule in any detail, that the

1990 arrest of Kevin Cobb should not be admitted at a new trial. This was not

sufficient consideration.

{¶11} Evid.R. 404(A) generally prohibits admission of evidence of a person's

character “for the purpose of proving action in conformity therewith on a particular

occasion,” subject to certain specified exceptions. Evid.R. 404(B) further provides

that:

Other crimes, wrongs or acts. Evidence of other crimes, wrongs,

or acts is not admissible to prove the character of a person in order to

show action in conformity therewith. It may, however, be admissible

for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or 7

accident.

{¶12} The rationale for refusing to permit this kind of evidence against a

defendant is that “[o]ffering evidence of a person's character poses an inherent risk

that the trier of fact will be distracted from the central issues in the case, and decide

the case based upon the trier's attitude toward a person's character, rather than

upon an objective evaluation of the operative facts.” State v. Grubb,

,

(2d Dist. 1996), citing Weissenberger, Ohio

Evidence, Section 404.4 (1996). “Character evidence is generally excluded not

because it lacks relevancy, but because its probative value is substantially

outweighed by the danger of unfair prejudice.”

citing Section 404.2.

{¶13} Exclusion of this evidence, thus, protects defendants against unfair

prejudice. Gillispie contends that the same considerations are absent when

other-crimes evidence is offered regarding third parties. According to Gillispie, the

leading case on the reverse 404(B) doctrine is U.S. v. Stevens,

(3d

Cir. 1991). In Stevens, the trial court refused to admit evidence that another

individual had committed a crime similar to the one the defendant was accused of

committing. On appeal, the Third Circuit Court of Appeals reversed, finding the

evidence admissible under a doctrine called “reverse 404(b).” The Third Circuit

Court of Appeals noted that:

The analytical basis for Stevens's proffer of Mitchell's testimony

was a rarely-used variant of Rule 404(b),* * * known as “reverse

404(b).” In contrast to ordinary “other crimes” evidence, which is used

to incriminate criminal defendants, “reverse 404(b)” evidence is utilized 8

to exonerate defendants. As Wigmore's treatise points out:

“It should be noted that [‘other crimes’] evidence may be also available

to negative the accused's guilt. E.g., if A is charged with forgery and

denies it, and if B can be shown to have done a series of similar

forgeries connected by a plan, this plan of B is some evidence that B

and not A committed the forgery charged. This mode of reasoning may

become the most important when A alleges that he is a victim of

mistaken identification.”

, quoting 2 Wigmore,

Wigmore on Evidence, Section 304 at 252 (J. Chadbourn Rev. Ed.

1979) (emphases in Wigmore.)

{¶14} In Stevens, the Third Circuit Court of Appeals followed an approach the

New Jersey Supreme Court had previously taken in State v. Garfole,

,

(1978). The defendant in Garfole was being tried for assault, carnal

abuse, and lewdness, and had attempted to introduce evidence regarding four prior

comparable incidents. He had alibis for all but two incidents, and wanted to show

that the incidents involved conduct with sufficient similarities to make it likely that

one person was responsible for all the crimes, including the one with which he had

been charged.

. The trial court found the evidence without any

relevance, and the court of appeals rejected it also, but on other grounds. The

court of appeals concluded that the evidence did not meet the high degree of

similarity required by New Jersey’s Evid.R. 55, which is similar to Ohio Evid.R.

404(B).

.

{¶15} On further appeal, the New Jersey Supreme Court noted that: 9

Central to the issue implicated by the approach of the Appellate

Division to defendant's proffer of proof here is the consideration that

the exclusionary aspect of Evid.R. 55 is not founded upon the absence

of any probative value of other-crimes evidence [(] indeed such value

may be very high [)] but rather its undue psychological effect with a

jury against a defendant. The law demurs at permitting a defendant to

be convicted for a specific crime merely because his commission of

crimes in the past shows him to be a bad person or having a

propensity to commit crime. (Citations omitted).

.

{¶16} The New Jersey Supreme Court concluded that the same

considerations do not apply when a defendant attempts to introduce evidence that

another individual may have committed other similar crimes. In this regard, the

court observed that:

We are of the view, however, that a lower standard of degree of

similarity of offenses may justly be required of a defendant using

other-crimes evidence defensively than is exacted from the State when

such evidence is used incriminatorily. As indicated above,

other-crimes evidence submitted by the prosecution has the distinct

capacity of prejudicing the accused. Even instructions by the trial

judge may not satisfactorily insulate the defendant from the hazard of

the jury using such evidence improperly to find him guilty of the

offense charged merely because they believe he has committed a

similar offense before. Therefore a fairly rigid standard of similarity 10

may be required of the State if its effort is to establish the existence of

a common offender by the mere similarity of the offenses. But when

the defendant is offering that kind of proof exculpatorily, prejudice to

the defendant is no longer a factor, and simple relevance to guilt or

innocence should suffice as the standard of admissibility, since

ordinarily, and subject to rules of competency, an accused is entitled to

advance in his defense any evidence which may rationally tend to

refute his guilt or buttress his innocence of the charge made. See

Evid.R. 1(2). The application of a modified requirement of relevancy

to the proffer by a defendant is additionally justified by the

consideration that the defendant need only engender reasonable

doubt of his guilt whereas the State must prove guilt beyond a

reasonable doubt. (Citations and footnote omitted.) Garfole,

,

.

{¶17} The New Jersey Supreme Court thus concluded that the other-crimes

evidence was admissible, and could only be excluded “ ‘if its probative value is

substantially outweighed by the risk that its admission will either (a) necessitate

undue consumption of time or (b) create substantial danger of * * * confusing the

issues or of misleading the jury.’ ”

, quoting from N.J. Evid.R. 4 (which is

similar to Ohio Evid. R. 403). The New Jersey Supreme Court noted that this

determination is for the trial judge to make.

.

{¶18} The Third Circuit Court of Appeals subsequently applied the same

approach and balancing test, stating that: 11

We agree with the reasoning of Garfole and with its holding that

the admissibility of “reverse 404(b)” evidence depends on a

straightforward balancing of the evidence's probative value against

considerations such as undue waste of time and confusion of the

issues. Recasting this standard in terms of the Federal Rules of

Evidence, we therefore conclude that a defendant may introduce

“reverse 404(b)” evidence so long as its probative value under Rule

401 is not substantially outweighed by Rule 403 considerations.

Stevens,

. (Footnote omitted.)

{¶19} A majority of federal circuits take the approach followed by Stevens;

only a few, including the Sixth Circuit Court of Appeals, hold that Fed. R. 404(b)

“protects every person, not just the criminal defendant or a victim.” Wynne v.

Renico,

(6th Cir. 2010) (Martin, J., concurring in the result based

on precedent, but criticizing the Sixth Circuit Court of Appeals’ former decision in

United States v. Lucas,

(6th Cir. 2004), as illogical and as having been 1 wrongly decided).

{¶20} We agree with the approach taken by most federal circuits, which

distinguishes other-crimes evidence offered against a defendant, from other-crimes

evidence offered by a defendant to support the proposition that a third party, not the

1 Lucas was also a split decision, with only two members of the panel agreeing. See Lucas,

(Rosen, J., concurring in result, but disagreeing with majority’s position on the “reverse 404(b)” issue). In addition, both Lucas and Wynne involved propensity evidence, which is within the type of evidence specifically prohibited by Evid. R. 404(B).

; Wynne,

. In contrast, the issue in the case before us involves identity, which is a permitted use under Evid. R. 404(B). 12

defendant, committed the crime. In this situation, courts evaluate the evidence

using a balancing approach under Evid. R. 403. This approach is also consistent

with Holmes,

,

,

(2006).

{¶21} Gillispie contends that Holmes has “constitutionalized” the reverse

404(B) doctrine. We disagree, because Holmes involved a different exclusionary

rule from the one involved in the case before us. In Holmes, the Supreme Court of

the United States rejected a rule adopted by the South Carolina Supreme Court,

which excluded proffered evidence of a third party’s alleged guilt, “where there is

strong evidence of a defendant's guilt, especially strong forensic evidence.”

. The Supreme Court stressed that while lawmakers have wide latitude to

establish rules excluding evidence in criminal trials, this latitude is not unlimited. In

this regard, the court emphasized that:

“Whether rooted directly in the Due Process Clause of the

Fourteenth Amendment or in the Compulsory Process or Confrontation

Clauses of the Sixth Amendment, the Constitution guarantees criminal

defendants ‘a meaningful opportunity to present a complete defense.’ ”

This right is abridged by evidence rules that “infring[e] upon a weighty

interest of the accused” and are “ ‘arbitrary’ or ‘disproportionate to the

purposes they are designed to serve.’ ” (Citations omitted.)

.

{¶22} The above statement applies generally to all criminal defendants.

However, the Supreme Court did not imply in Holmes that it was breaking new

ground with respect to rules on “other-crimes” evidence. To the contrary, the court 13

cited this type of rule as being consistent with the Constitution, which “permits

judges ‘to exclude evidence that is “repetitive ..., only marginally relevant,” or poses

an undue risk of “harassment, prejudice, [or] confusion of the issues.” ’ ” (Citations

omitted.)

. The Supreme Court noted that:

A specific application of this principle is found in rules regulating

the admission of evidence proffered by criminal defendants to show

that someone else committed the crime with which they are charged.

See, e.g., 41 C.J.S., Homicide § 216, pp. 56–58 (1991) (“Evidence

tending to show the commission by another person of the crime

charged may be introduced by accused when it is inconsistent with,

and raises a reasonable doubt of, his own guilt; but frequently matters

offered in evidence for this purpose are so remote and lack such

connection with the crime that they are excluded”); 40A Am.Jur.2d,

Homicide § 286, pp. 136-138 (1999) (“[T]he accused may introduce

any legal evidence tending to prove that another person may have

committed the crime with which the defendant is charged .... [Such

evidence] may be excluded where it does not sufficiently connect the

other person to the crime, as, for example, where the evidence is

speculative or remote, or does not tend to prove or disprove a material

fact in issue at the defendant's trial” * * *. Such rules are widely

accepted, and neither petitioner nor his amici challenge them here.

,

. (Footnote

omitted.) 14

{¶23} Upon reconsidering the evidence pertaining to Cobb’s 1990 arrest for

unlawful restraint and impersonating a police officer under the more relaxed

standard of reverse 404(B), we conclude that the evidence does not need to be of a

strict “copycat” variety in order to be relevant. The evidence presented at the

hearing on the motion for new trial indicated several instances in which Cobb used

his badge and impersonated a police office in order to intimidate and coerce others.

These incidents included: (1) the 1990 Fairfield assault on a female, in which

Cobb forced a woman into his auto by telling her that she was under arrest; (2)

another incident that occurred around 1990, in which Cobb flashed a badge at a city

park, told a group of men to get up on a fence, and grabbed one of the men, as if he

were placing him under arrest; and (3) an incident that occurred in1996, when Cobb

used his badge and impersonated a police officer in order to obtain money from a

pizza delivery person. Gillispie contends that the incidents are notable because

they involve a brazen impersonation of an officer in order to intimidate or coerce

others, much like the 1988 rapes. Gillispie also argues that the incidents cannot be

considered in isolation, but must be viewed in combination with all the other new

evidence, which establishes many points of similarity that are difficult to dismiss.

We agree.

{¶24} We see little possibility of prejudice to the State or of confusion of the

issues. The additional evidence to be presented is not voluminous and relates to

the same individual. As we stressed in our opinion,

In light of the jury's initial hesitation to convict Gillispie based

solely upon the victims' identifications, as evidenced by the jury's 15

claims to be deadlocked, we conclude that when the evidence at trial

is supplemented with all of the newly discovered evidence, considered

cumulatively, regarding Cobb as the possible perpetrator of these

rapes, there is a strong probability that a jury at a new trial would find

reasonable doubt, and acquit Gillispie. Gillispie,

.

{¶25} The State has also not suggested how it would be prejudiced. As

noted by the Supreme Court of Montana:

Unfair prejudice against the government is rather rare. “ ‘Unfair

prejudice’ within its context means an undue tendency to suggest

decision on an improper basis, commonly, though not necessarily, an

emotional one.” Fed.R.Evid. 403 advisory committee's note * * *.

Thus, the only possible unfair prejudice against the government occurs

when the evidence tends to make the jury more likely to find a

defendant not guilty despite the proof beyond a reasonable doubt.

See, e.g., Old Chief v. United States (1997),

, 185 n. 8,

, 652 n. 8,

, 591 n. 8. By proving that

someone else committed the crime, reverse 404(b) evidence is not

likely to generate that risk of jury infidelity, and thus does not generate

unfair prejudice. Only in the rarest circumstances will the district court

be presented with unfair prejudice to the State in determining the

admissibility of reverse 404(b) evidence. State v. Clifford,

,

(2005). 16

{¶26} Accordingly, Gillispie’s motion for reconsideration is well-taken and is

granted. After reconsidering the matters raised, paragraph 45 of our opinion is

deleted. We see no need to delete paragraph 44, because it contains only factual

background pertaining to Cobb’s 1990 Fairfield arrest.

II. The State’s Motion for Reconsideration

{¶27} In its motion for reconsideration, the State contends that we failed to

conduct a dispassionate and neutral evaluation of the trial evidence, and that we

minimized the State’s evidence against Gillispie, even though the jury found for the

State at trial. The State also points out certain alleged inaccuracies in our opinion,

to illustrate its contention that we failed to give weight to the jury verdict.

{¶28} For example, the State challenges the statement in paragraph 42 of

our opinion that Gillispie’s trial counsel “emphasized the undisputed evidence that

Gillispie’s hair is naturally dark brown, with progressively graying temples beginning

in 1982.” Gillispie,

, at ¶ 42. The State indicates that it did dispute

the idea that Gillispie could not have committed the crimes because his hair was

gray, not brown. The State points to evidence from Gillispie’s supervisor, who

apparently did not notice until 1990 that Gilllispie had “an awful lot of gray in his

hair.” State’s Motion for Reconsideration, p. 7, citing 1991 Trial Transcript, Volume

I, p. 216. The State also points to its statement in closing argument at the trial,

which disputes the amount of gray in Gillispie’s hair. 1991 Trial Transcript, Volume

I, p. 892.

{¶29} Our opinion referred to defense counsel’s emphasis of undisputed 17

evidence that Gillispie’s hair is naturally dark brown, with progressively graying

temples beginning in 1982. In this regard, defense counsel stated in closing

argument that:

* * * Dean undoubtedly as he sits there today has gray hair. I

don’t think any of us can deny that. 1986, you’ll have this picture in

front of you. Dean had gray hair in 1986. It’s there. 1989, just nine

months after the event, gray hair.

Did he dye it? No, he didn’t dye it. Remember what [the

victim] said? She said that’s not the hair of the man who did this to

me. That’s not the color of the hair of the man that did this to me.

Mr. Moore [the detective] told them he dyed it. He changed the color.

He changed the style. They’re convinced of that as they took the

stand that he’s dyed his hair.

We showed you he didn’t. We showed you with all sorts of

evidence which gave you some chemical analysis. We had his

hairdresser that’s been doing his hair for years come in; and people

that have known him since he was a child come in and tell you Dean’s

always had that color of hair and always been gray. He didn’t dye his

hair. That’s been the color of his hair and it’s not the color of the hair

of the man that did this to these women; and that is important. 1991

Trial Transcript, Volume III, p. 860.

{¶30} Thus, as our opinion noted, defense counsel did stress the undisputed

evidence about Gillispie’s hair color. Furthermore, the State has misconstrued the 18

testimony. Gillispie’s supervisor stated that he thought Gillispie had brown hair

during the time he worked with him, but noticed in early 1990 that Gillispie “had an

awful lot of gray hair in his hair.” 1991 Trial Transcript, Volume I, p. 216. The

following exchange then occurred between the prosecutor and Gillispie’s supervisor,

an individual named Robert Miller:

Q. Never noticed any gray before that?

A. I never paid any attention if I did.

(Emphasis added.)

Immediately thereafter, on cross-examination, the following exchange

occurred:

Q. Mr. Miller, you are certainly not going to suggest that one day in

1989 Roger Gillispie awakened only to find patches of gray hair on his

temples?

A. No. I just hadn’t noticed. Id. at 217. (Emphasis added.)

{¶31} Thus, Miller’s testimony does not challenge the evidence that Gillispie

had brown hair graying at the temples; it only indicates that the supervisor failed to

pay any attention to Gillispie’s gray hair before early 1990.

{¶32} As an additional matter, the assailant’s hair was variously described in

the police reports as brown, with a red tint, “orangish brown hair,” “brownish red

hair,” “reddish-brown thinning hair,” and “light colored blondish hair.” Exhibits 3 and

4 attached to Gillispie Petition for Postconviction Relief. As noted, the police

detective who handled the case told two victims prior to trial that Gillispie had dyed

or changed his hair to alter his appearance – an assertion that has no support in

any evidence of record. See 1991 Trial Transcript, Volume II, pp. 421 and 485. 19

{¶33} The State also challenges comments we made in paragraph 17 of our

opinion, which discusses evidence the defense presented to distinguish Gillispie

from certain facts associated with the assailant, like the assailant’s tanned face, use

of cigarettes, and so on. Gillispie,

. The State notes that

it refuted these challenges at trial, by pointing to a photo in which Gillispie appeared

to be tan, to evidence that no witness saw the assailant smoke a cigarette, and so

on. Because we mentioned these matters, and did not comment on the State’s

contrary assertions, the State claims that we misconstrued the evidence in Gillispie’s

favor.

{¶34} We disagree with the State. In the first place, the comments in

paragraph 17 simply refer to evidence the defense presented at trial. This was part

of the first twenty-seven paragraphs of the opinion, which were intended as

background information about the procedural and factual posture of the case. We

also note that the State’s representation of various facts is not accurate.

{¶35} For example, in contrast to the State’s representation that no victim

saw the assailant smoke a cigarette, one victim admitted that she had previously

testified that the assailant had smoked an entire cigarette and had flipped the

cigarette out of the car window. This victim also testified that the assailant had

smoked his own cigarette; he did not ask for one of hers. The other two victims

(twins, who were abducted at the same time), testified that the assailant had asked

one of them to light him a cigarette, and that a pack of cigarettes and a lighter were

missing from their car after the assailant left. 1991 Trial Transcript, Volume II, pp.

368, 402, 455, 476, and 529-532. 20

{¶36} One of Gillispie’s points at trial was that he was an avid non-smoker,

which is inconsistent with descriptions of an assailant who smoked and even stole a

pack of cigarettes and a lighter from a victim. Gillispie had a “no-smoking” sign in

his truck, and witnesses testified that he was very much against smoking, and that

they never saw him smoke. See 1991 Trial Transcript, Volume I, pp. 230, 235, and

251-252, and Volume III, pp. 642, 668, 698, 734, 756, 765, 778, 782, 786-787, 792,

and 800. These witnesses included people who had known Gillispie most of his

life, as well as people who smoked themselves, but were not permitted to smoke in

Gillispie’s truck or in his home.

{¶37} As another example of our “misconstruction” of the evidence, the State

contends that Gillispie arrived at a friend’s house at 7:00 p.m. on the night of one of

the alleged rapes (August 5, 1988), rather than at 6:00 p.m., as our opinion states.

See Gillispie,

. The individual with Gillispie that night

(Brian Otis Poulter), indicated that he and Gillispie got together in the late afternoon

or early evening, rode around, and arrived at a friend’s house at 6:00 or 7:00 p.m.

Poulter also stated that they could have arrived between 4:00 and 6:00 p.m. 1991

Trial Transcript, Volume III, pp. 731-732, and 748.

{¶38} The friend, Lisa Pittman, testified that when Gillispie and Poulter came

to her house, it was “probably sevenish, around there. A couple hours before dark.”

Id. at 757. Gillispie also testified that he and Poulter got together around 3:00 or

4:00 p.m., and that they rode around for a couple of hours before arriving at

Pittman’s house. Id. at 806-807. We see no significant difference between this

and what we said in our opinion. The witnesses deviated in times somewhat, but 21

they were reconstructing times and events that had occurred three years prior to

trial. None of the witnesses, including Gillispie, knew, until two years after the

crimes, that he was a potential suspect, and the only way they were able to

reconstruct the events of the day was because a friend had listed certain events (but

not specific times) in a diary.

{¶39} If our purpose were to credit Gillisipie’s testimony – or to provide him

with a “gift” regarding his alibi, as the State contends, we would not have stated that

“Gillispie ‘claims’ to have spent the afternoon driving around with Poulter in Poulter’s

new convertible.” Gillispie,

. (Emphasis added). We

also would not have noted that Gillispie offered a “partial” alibi, since the alleged

rape on August 5, 1988, took place some time after 4:30 p.m., and the victim and

assailant stayed at the location of the assault for 30 to 35 minutes. See Offense

Report attached as Exhibit 4 to Petition for Postconviction Relief, and 1991 Trial

Transcript, Volume I, pp. 498-499, and 613. Even if a 7:00 p.m. time-frame is used,

Gillispie and Poulter would have been together from around 5:00 p.m., which would

have provided a “complete” alibi, given the time and length of the crime – that is, if 2 we had accepted the testimony of the defense witnesses.

{¶40} Essentially, the State’s contention is that we failed to consider

the State’s position on the evidence. This argument misses the point. The first

twenty-seven paragraphs of our opinion were intended to introduce the factual and

2 The Offense Report indicates that the victim saw her assailant when she parked and entered a Rite-Aid Pharmacy at around “1630 hrs.” The victim testified at trial that she purchased lotion while at the store, and was assaulted after she left. The victim also stated that she and the assailant remained at the location of the assault for 30 to 35 minutes. 22

procedural background of the case; they were not intended as a comment on the

evidence or as an analysis applying the requirements for a new trial. In fact, we did

not mention the requirements for granting new trials until paragraph 33 of our

opinion. Gillispie,

.

{¶41} Our review indicates that we did not take the defense evidence at face

value, and did not base our decision on alleged “inaccuracies.” Accordingly, these

arguments provide no basis for reconsidering our decision.

{¶42} We also did not ignore the jury verdict, as the State suggests. We

agree with the State that the jury found Gillispie guilty of the alleged crimes. We

disagree that the jury’s verdict is preclusive. If that were the case, no motion for

new trial could ever succeed.

{¶43} Our opinion relied on a well-established standard from State v. Petro,

,

(1947), which indicates that:

To warrant the granting of a motion for a new trial in a criminal

case, based on the ground of newly discovered evidence, it must be

shown that the new evidence (1) discloses a strong probability that it

will change the result if a new trial is granted, (2) has been discovered

since the trial, (3) is such as could not in the exercise of due diligence

have been discovered before the trial, (4) is material to the issues, (5)

is not merely cumulative to former evidence, and (6) does not merely

impeach or contradict the former evidence.

at syllabus.

{¶44} The original verdict plays an obvious and important role, since the

newly-discovered evidence must disclose a strong probability that it will change the 23

result if a new trial is granted. Thus, a defendant requesting a new trial faces a

substantial hurdle on just the first prong of the standard. We stressed this in

paragraph 35 of our opinion. Gillispie,

. We also noted

that:

[T]he weaker the evidence of guilt at trial, the less compelling

the newly discovered evidence would have to be in order to produce a

strong probability of a different result. In view of the

beyond-a-reasonable-doubt burden of proof, newly discovered

evidence need not conclusively establish a defendant's innocence in

order to create a strong probability that a jury in a new trial would find

reasonable doubt.

Our opinion further stressed that:

This case does not involve overwhelming evidence of Gillispie's

guilt. There is no physical evidence connecting Gillispie to the rapes.

The only evidence linking him to the crimes is the perpetrator's use of

the name Roger and the victims' eyewitness identifications, which were

made two years after the crimes were committed. The record further

reveals that the jury deliberated long and hard, twice advising the trial

court on the second day of deliberations that it was deadlocked, with

eight of the twelve jurors in favor of acquittal. Only after a jury charge

pursuant to Allen v. United States,

,

,

(1896), and State v. Howard,

,

(1989), and several more hours of deliberation, did the jurors 24

unanimously decide to convict Gillispie. Gillispie,

.

{¶45} We observed that the jury was presented with evidence tending to cast

doubt on the accuracy of the victim’s identification; for example, Gillispie’s features

and habits. Id. at ¶ 41. Notably, this statement uses the phrase ”tending to cast

doubt” – which is a qualifying, rather than an unequivocal description. We also

noted that despite these discrepancies, the jury “chose to credit – after significant

debate and reports of being deadlocked – the identification testimony of the three

victims over the testimony of Gillispie and his witnesses.” Id. at ¶ 43. This was a

direct recognition of the jury verdict.

{¶46} We also commented that it was within the jury’s province to chose to

credit the eyewitness testimony. Id. The issue, however, was not whether the

original jury verdict was correct. The issue was whether “in light of all of the newly

discovered evidence, considered cumulatively, regarding Cobb as an alternative

perpetrator, which a jury might see as casting further doubt on the victims'

identifications of Gillispie, * * * there is a strong probability that a jury would have

reasonable doubt of Gillispie's guilt in a new trial at which the newly discovered

evidence were presented.” Id. We concluded this issue adversely to the State,

and nothing the State has said on reconsideration persuades us that our decision

was incorrect or was not fully considered.

{¶47} “An application for reconsideration is not designed for use in instances

where a party simply disagrees with the conclusions reached and the logic used by

an appellate court. App. R. 26 provides a mechanism by which a party may 25

prevent miscarriages of justice that could arise when an appellate court makes an

obvious error or renders an unsupportable decision under the law.” State v.

Owens,

,

(11th Dist. 1996). The State

may disagree with our decision, but that is not a basis for allowing reconsideration.

{¶48} Accordingly, the State’s motion for reconsideration is overruled.

III. Conclusion

{¶49} Gillispie’s motion for reconsideration having been granted, and the

State’s motion for reconsideration having been overruled, our opinion is modified to

delete paragraph 45.

{¶50} IT IS SO ORDERED.

_____________________________________ THOMAS J. GRADY, Presiding Judge

________ ______________________________ MIKE FAIN, Judge

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

HALL, J., dissenting:

{¶51} Defendant-appellant Gillespie asks us to reconsider the part of the lead

opinion determining that evidence of alternate suspect Kevin Cobb’s 1990 Fairfield,

Ohio arrest was not admissible. There is no basis for reconsideration because the

defense did not raise any argument implicating “reverse Evid.R. 404(B) evidence” in

the original briefing of the case. 26

{¶52} I dissented from the lead opinion but agreed, at footnote four of my

dissent, that the circumstances surrounding Cobb’s 1990 arrest were not admissible

evidence. For the reasons detailed below, I still believe the evidence is not

admissible. Even if the evidence were relevant under Evid.R. 401 and admissible as

identity evidence under Evid.R. 404(B) (conclusions with which I disagree below), it

still should be excluded under Evid.R. 403(A). At a minimum, the Evid.R. 403(A)

question should be reserved to the trial court’s sound discretion on remand.

{¶53} For its part, the State seeks reconsideration of whether Gillespie’s

“new” evidence raised a “strong probability” that it would change the result if a new

trial were granted. State v. Petro,

,

(1947). Because

my previous dissent found no strong probability of a different result, and because I

adhere to that belief, there is nothing in that issue for me to reconsider.

The 1990 Fairfield Incident

{¶54} The defense has referred to “new” evidence of alternate suspect Kevin

Cobb’s activity outside a Fairfield, Ohio bar in the early morning hours of September

27, 1990, as a “copycat attempted rape.” (Brief of Appellant filed May 9, 2011 at

16). The evidence presented, from both testimony and police reports (Defense

Exhibit J), reveals nothing of the sort.

{¶55} Rhonda Hart and two other women were drinking heavily at Mable

Murphy’s bar that night. They were “pretty inebriated.” (T. 242). Upon leaving the

bar, they were acting “a little rowdy” (Id.). Hart “flashed” her breasts. (Exhibit J,

Record of arrest and statement of friend Lisa Garrett). Kevin Cobb approached the 27

girls and said Hart had to go with him as he was pressing charges. He told the girls

that he was a police officer. Although Hart testified, twenty years later, that Cobb

flashed a badge in the parking lot, none of the girls’ written statements, including

Hart’s, mention a badge. She got into Cobb’s car and, after leaving the lot, did not

“remember what happened really after that” because she was “so drunk.” (T.

242-243). The narrative police report does indicate that Hart said Cobb showed her

his badge and nightstick later at his apartment.3

{¶56} Cobb took Hart to his own nearby apartment. The narrative police

report states he pushed her down and handcuffed her, but she didn’t remember

that. (T. 250) . The other girls had gotten Cobb’s license-plate number. When they

realized his vehicle wasn’t turning into the Fairfield police department, which was

across the street, they went to the police station and reported the incident. The

police ran the registration and found the car belonged to Cobb, who was known by

at least one officer. They went to his apartment and found the car with Cobb’s

corrections-officer uniform hanging in the rear window. While they were looking at

the car, Cobb came out, talked to the police, and told them Hart was inside. She

was found sitting on the living room couch. The police arrested Cobb for

impersonating a police officer, unlawful restraint, and kidnaping. (Exhibit J). The

charges later were dropped. (Decision, Dec. 29, 2010 at 6).

{¶57} The trial court determined that “[b]ecause the two crimes are in no way

related[,] the evidence from the * * * 1990 incident is not relevant in a trial for the

3 The Fairfield police report indicates that Cobb has a Bulldog, USMC tattoo on his right forearm. I note this only in passing not knowing whether it has any evidentiary significance without reviewing the entire transcript of both previous trials. 28

crimes committed in August of 1988.” (Decision at 6). I agree. But even if I did not

agree, the trial court did not abuse its discretion in weighing the competing interests

and reaching a reasonable conclusion.

{¶58} I agree with the trial court for many reasons, among them is that there

is no description in the “new” evidence of any sexual event or request, and Cobb

was not charged with any sexual offense. There is no evidence of a request for, or

physical attempt to, require Hart to perform oral sex, whereas the sexual conduct in

the August 1988 rapes specifically centered around oral sex. In addition, no weapon

was involved in the 1990 incident, (T 245-246) whereas both of the 1988 events

were committed with a chrome or silver handgun. Likewise, there is no evidence that

Cobb used the name “Roger,” whereas the 1988 assailant identified himself as

“Roger” on each occasion. Cobb encountered Hart in the presence of witnesses and

took her to his own apartment in his own vehicle. Those facts are markedly different

from the factual descriptions of the 1988 rapes. In short, I see nothing specific about

the 1990 Fairfield incident to support a logical, reasonable inference that Cobb

committed the 1988 offenses in Dayton. Moreover, as indicated in my original

dissent, at paragraphs 71 through 73, there is no apparent or implied nexus

between the 1990 Fairfield incident and the 1988 Dayton rapes that would implicate

Cobb in the 1988 offenses. Accordingly, the Fairfield incident is irrelevant and does

not survive Evid.R. 401.

{¶59} In my view, the majority’s discussion about the “reverse Evid.R. 404(B)”

analytical framework for declaring the 1990 Fairfield evidence admissible is

misapplied. I agree that the admission of Evid.R. 404(B) evidence related to a 29

possible alternate suspect should be more relaxed than Evid.R. 404(B) evidence

used against a defendant. This is so because Evid.R. 404(B) evidence used against

a defendant creates a risk the jury will find the defendant guilty because it hears he

has committed a similar crime. While the risk of “guilt-by-prior-behavior” doesn’t

directly apply to a claimed alternate suspect, who is not on trial, the potential for

confusion or misleading jurors by a defendant directing them to a “copycat” crime

remains problematic.

{¶60} Nevertheless, Evid.R. 404(B) must be applied here, albeit in a relaxed

form. The only subpart of the rule potentially applicable to the 1990 Fairfield incident

concerns evidence of the “identity” of the offender. Case law regarding admission of

“other acts” solely to prove “identity,” as opposed to the other uses permitted by

Evid.R. 404(B), unsurprisingly requires that the evidence actually can help identify

the offender. See, e.g., State v. Craig,

,

,

(“The evidence of the first rape tends to show the identity of the

perpetrator of the second. Therefore, evidence of [defendant’s] prior rape * * *

meets the requirements for admissibility in order to show proof of identity, as

permitted by Evid.R. 404(B).”).

{¶61} As the Ohio Supreme Court has explained:

Other acts can be evidence of identity in two types of situations.

First are those situations where other acts “form part of the immediate

background of the alleged act which forms the foundation of the crime

charged in the indictment,” and which are “inextricably related to the

alleged criminal act.” State v. Curry (1975),

, 72 30

O.O.2d 37, 41,

.

***

Other acts may also prove identity by establishing a modus

operandi applicable to the crime with which a defendant is charged.

“Other acts forming a unique, identifiable plan of criminal activity are

admissible to establish identity under Evid.R. 404(B).” State v. Jamison

(1990),

,

, syllabus. “‘Other acts may

be introduced to establish the identity of a perpetrator by showing that

he has committed similar crimes and that a distinct, identifiable

scheme, plan, or system was used in the commission of the charged

offense.” State v. Smith (1990),

,

. While we held in Jamison that “the other acts need not be

the same as or similar to the crime charged,” Jamison, syllabus, the

acts should show a modus operandi identifiable with the defendant.

State v. Hutton (1990),

,

.

A certain modus operandi is admissible not because it labels a

defendant as a criminal, but because it provides a behavioral

fingerprint which, when compared to the behavioral fingerprints

associated with the crime in question, can be used to identify the

defendant as the perpetrator. Other-acts evidence is admissible to

prove identity through the characteristics of acts rather than through a

person's character. To be admissible to prove identity through a

certain modus operandi, other-acts evidence must be related to and 31

share common features with the crime in question.

State v. Lowe,

,

,

.

{¶62} Admittedly, Lowe dealt with other-acts evidence admissible against a

defendant. As indicated above, admission of other-acts identity evidence against an

alternate suspect is more relaxed. But there must be a sufficient similarity between

the other act and the crime at issue to enable a jury to draw a logical conclusion that 4 the alternate suspect might be the offender. The 1990 Fairfield incident is not

sufficiently similar to the 1988 Dayton-area rapes to constitute evidence identifying

Cobb as potentially being responsible for the 1988 rapes. If the contrary were true,

then evidence of every sexual assault in southern Ohio within a few years

committed by a similarly-described suspect would be admissible if Gillespie could

show he was not involved in those offenses.

{¶63} Finally, even if one were to conclude that the 1990 incident is relevant

under Evid.R. 401, and is proper identity evidence under Evid.R. 404(B), it still

should be excluded under the balancing test of Evid.R. 403(A), which provides: “* * *

[E]vidence is not admissible if its probative value is substantially outweighed by the

danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”

Appellant’s reference to the 1990 Fairfield incident as a “copycat” crime—when it

definitively is not—is reason enough to conclude that this collateral diversion would

create a mini-trial about the unrelated event, resulting in unfair prejudice, confusion

of the issues, and misleading the jury. As I stated earlier, the 403 balancing

4 See also United States v. Allen,

(6th Cir. 2010) (analyzing Federal Rule 404(B)’s application and requiring a “sufficient distinctive similarity” to “create a pattern or modus operandi”). 32

analysis should be left to the sound discretion of the trial court after evaluation in the

context of whatever evidence the parties seek to offer at the new trial ordered by the

majority.

_____________________________________ MICHAEL T. HALL, Judge

Copies to:

Carley Ingram 301 W. Third St., 5th Fl Dayton, Ohio 45422

Mark Godsey P.O. Box 210040 U.Cincinnati-College Law Cincinnati, Ohio 45221

Jim Petro 1933 Lake Shore Drive Columbus, Ohio 43204