[Cite as State v. Rossi,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24740

v. : T.C. NO. 08CRB1799

NICHOLAS ROSSI : (Criminal appeal from Municipal Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 8th day of June , 2012.

..........

TROY B. DANIELS, Atty. Reg. No. 0084957 and ANDREW D. SEXTON, Atty. Reg. No. 0070892, Assistant City Prosecutors, 335 W. Third Street, Room 372, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee

MARK J. BABB, Atty. Reg. No. 0078670, 2190 Gateway Drive, Fairborn, Ohio 45324 Attorney for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} Defendant-appellant Nicholas Rossi appeals from a decision of the Dayton

Municipal Court overruling his motion for a new trial in a written decision issued on June 1,

2011. Rossi filed a timely notice of appeal with this Court on July 1, 2011. 2

{¶ 2} Rossi was charged with one count of Sexual Imposition, in violation of R.C.

2907.06(A)(1), and with one count of Public Indecency, in violation of R.C. 2907.09(A)(1).

Following a bench trial, Rossi was found guilty of both counts, and was sentenced

accordingly.

{¶ 3} Rossi appealed from his conviction and sentence. We affirmed. State v.

Rossi, Montgomery App. No. 22803,

. While his appeal was pending,

Rossi filed a motion for a new trial under Crim. R. 33, based upon newly discovered

evidence, in the form of a posting by his victim on her MySpace page which suggested she

had been lying concerning the undesirability of Rossi’s advances, in order to protect her

relationship with her boyfriend. The trial court overruled Rossi’s motion for a new trial,

finding that it did not have jurisdiction to rule on the motion while the appeal was pending.

{¶ 4} On April 24, 2009, after we had affirmed his conviction, Rossi filed a

“Motion to Have the Court Vacate its Prior Decision Overruling Defendant’s Motion for a

New Trial and to Continue Stay of Execution.” The trial court denied this motion, finding

that it did, indeed, have jurisdiction to overrule Rossi’s original motion for a new trial while

the appeal was pending. Rossi appealed the decision of the trial court. In State v. Rossi, 2d

Dist. Montgomery No. 23682,

, we reversed the decision of the trial court.

Specifically, we held that the trial court erred by failing to consider Rossi’s motion for a new

trial on its merits.

{¶ 5} On February 28, 2011, the trial court held a hearing on Rossi’s motion for a

new trial. The trial court issued a written decision overruling Rossi’s motion for a new trial

on June 1, 2010. 3

{¶ 6} It is from this judgment that Rossi now appeals.

{¶ 7} Rossi’s first assignment of error is as follows:

{¶ 8} “THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING

DEFENDANT’S MOTION TO A NEW TRIAL.”

{¶ 9} In his first assignment, Rossi contends that the trial court erred when it

overruled his motion for a new trial. Specifically, Rossi argues that the trial court erred

when it found that he had failed to properly authenticate Defense Exhibit A-1, the blog post

copied from the Myspace web address which Rossi alleges was written and posted by the

victim, M.G., after his trial was concluded. Accordingly, Rossi asserts that the blog post

was newly discovered exculpatory evidence which established that M.G. fabricated her

testimony at trial regarding the sexual assault.

{¶ 10} The blog post allegedly written by M.G. states as follows:

I can’t forgive you for what you’ve done. I loved you so

much and you’ll never have any idea. I think it’s weird

because we’ve done so much stuff together. I can’t believe I

went so far by giving you everything you wanted. I wish I

could lie on your chest and you would like it. I don’t know

what to do. But I have done went so far by lying n [sic]

getting some stranger to go to jail and in legal so you

wouldn’t think I would cheat on you even when I did slip

because he was cute, but I didn’t give in to my desire. Is that

not enough? I went so far to say I wanted to be with you. I 4

went so far to do things with you all the time. I don’t

understand what else I can do because you’re pressing your

luck, mister. I even changed my career for you so that we

could work together. I’m drunk right now, but maybe when I

sober we can talk about it. Because I love you and that’s

reason enough. ***.

{¶ 11} The decision whether to grant a motion for new trial lies within the sound

discretion of the trial court and will not be disturbed on appeal absent an abuse of that

discretion. State v. Schiebel,

,

(1990). “Abuse of

discretion” has been defined as an attitude that is unreasonable, arbitrary, or unconscionable.

Huffman v. Hair Surgeon, Inc.,

,

(1985). It is

to be expected that most instances of abuse of discretion will result in decisions that are

simply unreasonable, rather than decisions that are unconscionable or arbitrary.

{¶ 12} “A decision is unreasonable if there is no sound reasoning process that

would support that decision. It is not enough that the reviewing court, were it deciding the

issue de novo, would not have found that reasoning process to be persuasive, perhaps in

view of countervailing reasoning processes that would support a contrary result.” AAAA

Enterprises, Inc. v. River Place Community Redevelopment,

,

(1990).

{¶ 13} “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 5

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.” State

v. Petro,

,

(1947).

{¶ 14} Trial courts have the inherent power necessary to grant a new trial based on

newly-discovered evidence, pursuant to Crim.R. 33. See, e.g., State v. LaMar,

,

,

. The newly-discovered evidence must

show a strong probability of changing the result if a new trial is granted. State v. Perdue,

7th Dist. Mahoning No. 04 MA 119,

. The burden of establishing a

strong probability of a different result rests on the petitioner. State v. Perkins, 2d Dist.

Montgomery No. 24397,

.

{¶ 15} “In singling out impeaching or contradicting evidence, Petro recognized that

the nature of such evidence requires that a trial court exercise circumspection in determining

whether newly discovered evidence of that character would create a strong probability of a

different result, because such evidence quite often will not be likely to change the outcome.

In a case where the newly discovered evidence, though it is impeaching or contradicting in

character, would be likely to change the outcome of the trial, we see no good reason not to

grant a new trial. [Footnote omitted.]” Dayton v. Martin,

,

(2d Dist. 1987).

{¶ 16} At trial, M.G. testified that Rossi sexually assaulted her in between classes

in a stairwell at Sinclair Community College. Although Rossi attempted to establish that

the sexual encounter between he and M.G. was consensual, the trial court found him guilty 6

of sexual imposition and public indecency. In his motion for a new trial, Rossi argued that

the blog posted by M.G. constituted a recantation of her testimony at trial, to wit: M.G.

engaged in a consensual sexual encounter with Rossi to get back at her boyfriend.

{¶ 17} “On a motion for new trial based upon grounds of newly discovered

evidence, the trial court, when considering the recantation of the prosecution’s primary

witness, must make two findings: (1) which of the contradictory testimonies of the recanting

witness is credible and true, and if the recantation is believable; (2) would the recanted

testimony have materially affected the outcome of the trial?” City of Toledo v. Easterling

(1985),

,

, (6th Dist. 1985). Accord, State v. Williams,

2d Dist. Montgomery No. 19854,

. “[N]ewly discovered evidence which

purportedly recants testimony given at trial is ‘looked upon with the utmost suspicion.’”

State v. Isham, 2d Dist. Montgomery No. 15976,

(Jan. 24, 1997).

{¶ 18} At the hearing on Rossi’s motion for new trial, the State presented the

testimony of Detective Doug Roderick, an expert in computer forensics. Det. Roderick

testified that someone either altered or completely fabricated the Myspace blog post before

Rossi submitted the “new” evidence to the trial court. Det. Roderick based his testimony on

the fact that the date on the blog post on Defense Exhibit A-1 stated “May 16, 2008,

Monday.” Det. Roderick testified that this was an incorrect match of the date and the day of

the week. In fact, the trial court took judicial notice that May 16, 2008, was actually a

Friday. Det. Roderick testified that a computer system would never match a date with the

incorrect day of the week. Thus, Det. Roderick concluded with ninety percent certainty that

Defense Ex. A-1 was either altered or that it was completely fabricated and not a genuine 7

Myspace blog post at all.

{¶ 19} Det. Roderick also testified that anyone familiar with the “cut,” “copy,” and

“paste” functions of a computer with access to basic computer programs would have the

capability to easily alter or fabricate a document such as Defense Ex. A-1 in order to make it

appear as if a blog post was authored by another individual or alter the text of an existing

blog post to suit one’s purposes and then print it. Rossi testified that he knew how to “cut,”

“copy,” and “paste” from web pages, describing the process as “simple.” Rossi also

testified that he did not witness M.G. author the blog post, nor had she ever admitted to him

that she did so. In fact, M.G. testified unequivocally that she did not author the blog post.

Moreover, M.G. testified that she had never seen Defense Ex. A-1 until after Rossi’s

criminal trial when he filed a civil suit against her using the blog post as an exhibit in that

case.

{¶ 20} We also note that Rossi testified that he never made any effort to trace the

blog post through Myspace in order to discover where the post originated. Rossi testified

that he did not trace the blog post even though he was aware that such action could be

performed. Rossi gave no reason for his failure to request that the origin of the blog post be

traced.

{¶ 21} In light of the evidence adduced at the hearing, the trial court found that

Defense Ex. A-1 was “highly questionable, *** not credible and true, and [did] not carry

enough weight to create a strong probability of a different result” if a new trial was granted.

Upon review, we cannot find that that the trial court abused its discretion when it rejected

Rossi’s Exhibit A-1 and his testimony as a basis upon which to grant his motion for a new 8

trial. Accordingly, the trial court did not err when it overruled Rossi’s motion for a new

trial.

{¶ 22} Rossi’s first assignment of error is overruled.

{¶ 23} Rossi’s second assignment of error is as follows:

{¶ 24} “THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF

EXPERT TESTIMONY OF [sic] DETECTIVE RODDERICK [sic].”

{¶ 25} In his second assignment, Rossi argues that the trial court abused its

discretion when it admitted the testimony of the State’s expert in computer forensics, Det.

Roderick. Specifically, Rossi asserts that Det. Roderick’s testimony “did not aid the trier of

fact in determining whether the blog posting *** was altered or fabricated.”

{¶ 26} A trial court has broad discretion in determining whether to admit or exclude

expert testimony, and thus, we will not reverse its decision absent an abuse of discretion.

State v. Jones,

, 414,

,

. If the elements

listed in Evid. R. 702 are satisfied then the admission of expert testimony is favored. State

v. Williams,

,

(1983).

{¶ 27} Evid. R. 702 permits a witness to testify as an expert if:

(A) The witness' testimony either relates to matters beyond the

knowledge or experience possessed by lay persons or dispels a

misconception common among lay persons;

(B) The witness is qualified as an expert by specialized

knowledge, skill, experience, training, or education regarding

the subject matter of the testimony; 9

(C) The witness' testimony is based on reliable scientific, technical, or

other specialized information. ***.

{¶ 28} Under Evid. R. 702, expert testimony is allowed if scientific, technical, or

other specialized training or knowledge will assist the trier of fact in understanding the

evidence or determining a fact at issue. An expert witness is defined as “one who testified

concerning matters of scientific, mechanical, professional or other like nature, requiring

special study, experience or observation not within the common knowledge of laymen.”

Landskroner v. Pub. Utils. Comm. of Ohio,

,

(1983).

When witnesses are deemed competent to testify as experts, the subject matter of the

testimony must be relevant to a fact at issue, “either in its own content or by illuminating

other evidence that is relevant to such a fact.” State v. Smith,

,

(2d Dist. 1992).

{¶ 29} Det. Roderick was called by the State to testify as an expert witness in the

field of computer forensics at the hearing regarding Rossi’s motion for a new trial. Det.

Roderick testified that he is a detective employed by the Dayton Police Department. At the

time of the hearing, Det. Roderick testified that he was on loan to the Federal Bureau of

Investigations (FBI) as a forensic examiner of computer digital evidence. Det. Roderick

further testified that he had been working as a computer forensic specialist since 2001. Det.

Roderick also testified that he was certified as a forensic computer examiner by the

International Association of Computer Investigator Specialists and the International Society

of Forensic Computer Examiners. Det. Roderick testified that he received forensic

computer training from the FBI and National White Collar Crime Center. Accordingly, the 10

trial court did not err by allowing Det. Roderick to testify as an expert in forensic computer

investigations.

{¶ 30} At the hearing, Rossi attempted to present the blog post as a genuine

Myspace post created by M.G. Capitalizing upon his specialized technical experience as

forensic computer analyst, Det. Roderick was asked to determine whether the blog post was

an authentic posting, that is, whether the blog post had been altered or was completely

fabricated. As previously mentioned, Det. Roderick testified that he was ninety percent

certain that Defense Ex. A-1 was either altered or that it was completely fabricated and not a

genuine Myspace blog post because the date at the top of the post did not match the correct

day of the week. Det. Roderick’s expert opinion that the blog post was altered or

completely fabricated was directly relevant to whether the new evidence would create a

“strong probability of changing the result if a new trial [was] granted.” While it is true that

he could not and did not testify regarding the identity of the individual who altered or

fabricated the blog post, Det. Roderick’s expert testimony assisted the trier of fact in

understanding the evidentiary value of the blog post. Det. Roderick’s expert testimony was

highly relevant to the facts at issue. Thus, the trial court did not err when it found that Det.

Roderick’s testimony was admissible as expert witness testimony pursuant to Evid. R.702.

{¶ 31} Rossi’s second assignment of error is overruled.

{¶ 32} Rossi’s third and final assignment of error is as follows:

{¶ 33} “MR. ROSSI’S SIXTH AMENDMENT RIGHT TO REPRESENTATION

WAS VIOLATED BY HIS TRIAL COUNSEL’S INEFFECTIVE ASSISTANCE.”

{¶ 34} In his final assignment, Rossi contends that the he received ineffective 11

assistance when his previous attorneys failed to send an electronic file of the blog post to the

State in order to demonstrate the post was authentic and had not been tampered with or

fabricated.

{¶ 35} “We review the alleged instances of ineffective assistance of trial counsel

under the two prong analysis set forth in Strickland v. Washington,

,

,

(1984), and adopted by the Supreme Court of Ohio in State v. Bradley

(1989),

, * * * . Pursuant to those cases, trial counsel is entitled to a

strong presumption that his or her conduct falls within the wide range of reasonable

assistance. Strickland,

. To reverse a conviction based on ineffective

assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an

objective standard of reasonableness and that his errors were serious enough to create a

reasonable probability that, but for the errors, the result of the trial would have been

different.

Hindsight is not permitted to distort the assessment of what was reasonable

in light of counsel’s perspective at the time, and a debatable decision concerning trial

strategy cannot form the basis of a finding of ineffective assistance of counsel.” (Internal

citation omitted). State v. Mitchell, 2d Dist. Montgomery No. 21957,

.

{¶ 36} An appellant is not deprived of effective assistance of counsel when counsel

chooses, for strategic reasons, not to pursue every possible trial tactic. State v. Brown,

,

(1988). The test for a claim of ineffective assistance

of counsel is not whether counsel pursued every possible defense; the test is whether the

defense chosen was objectively reasonable. Strickland v. Washington,

,

,

(1984). A reviewing court may not second-guess decisions of 12

counsel which can be considered matters of trial strategy. State v. Smith,

,

(1985). Debatable strategic and tactical decisions may not form the basis

of a claim for ineffective assistance of counsel, even if, in hindsight, it looks as if a better

strategy had been available. State v. Cook,

,

(1992).

{¶ 37} In the instant case, Rossi’s claim that he transmitted the electronic file of the

blog post to all of his former attorneys is not supported by the record. Initially, we note that

the record establishes that Rossi did not provide the attorney who represented him at the

motion for a new trial hearing with the electronic file. In fact, the record establishes that

when his attorney asked for a copy of the electronic file, Rossi informed him that the digital

file no longer existed.

{¶ 38} Additionally, the record is devoid of any facts which establish that Rossi’s

prior trial counsel failed to preserve the electronic file allegedly emailed to her by Rossi.

Rossi’s trial counsel was not called to testify at the hearing, and there is no record of a prior

statement made by her regarding the existence of an electronic file containing the blog post.

{¶ 39} We also note that the trial court provided an opportunity at the hearing for a

continuance so that Rossi could provide his attorney and the State with an electronic copy of

the file. The trial court offered the continuance because Rossi asserted at the hearing that he

had a copy of the electronic file in his possession. Rossi, however, declined the trial court’s

offer of a continuance because he stated that he did not want to have to return to Dayton,

Ohio. Rossi cannot now blame his prior attorneys for his decision to waive a continuance

that would have allowed him to provide the State with an electronic file of the blog post

which he claimed to have in his possession at the time of the hearing. 13

{¶ 40} Lastly, the record fails to definitively establish what an analysis of the

electronic file of the blog post would have revealed or how it would have changed the

outcome of the trial. Rossi’s argument in this regard fails. Simply put, there is nothing in

the record which supports Rossi’s claim that he received ineffective assistance of counsel.

{¶ 41} Rossi’s third and final assignment of error is overruled.

{¶ 42} All of Rossi’s assignments of error having been overruled, the judgment of

the trial court is affirmed.

..........

GRADY, P.J. and HALL, J., concur.

Copies mailed to:

Troy B. Daniels Andrew D. Sexton Mark J. Babb Hon. Carl Sims Henderson