[Cite as State v. Jordan,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-18-1147

Appellee Trial Court No. CR0199506548

v.

Johnny Jordan DECISION AND JUDGMENT

Appellant Decided: June 28, 2019

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

Kandra D. Roberts, for appellant.

*****

ZMUDA, J.

I. Introduction

{¶ 1} Appellant, Johnny Jordan, appeals the judgment of the Lucas County Court

of Common Pleas, denying his motion for a new trial. Because we find that the trial

court did not abuse its discretion when it denied appellant’s motion for new trial, we

affirm. A. Facts and Procedural Background

{¶ 2} This appeal stems from appellant’s 1996 conviction for rape, felonious

sexual penetration, and felonious assault. Appellant appealed his conviction, prompting

our decision in State v. Jordan, 6th Dist. Lucas No. L-96-169,

(Jan. 31, 1997). In our decision, we set forth the relevant facts of this case as

follows:

On September 20, 1995, appellant, the father of Lorraine, Mary and

Nathaniel Jordan, was indicted on three counts of rape, three counts of

felonious sexual penetration and three counts of felonious assault involving

Lorraine, Mary and Nathaniel. On March 11, 1996, a hearing was held in

the trial court to determine whether appellant’s nine-year-old daughter

Mary Jordan was competent to testify at the trial. At the conclusion of the

hearing, the trial court found that Mary was competent to testify. On

March 25, 1996, the case came on for trial before a jury. Prior to the

beginning of testimony, the parties stipulated that neither Mary Jordan nor

her sister Lorraine Jordan was the spouse of appellant. The following

relevant testimony was heard.

Diana Pudlicki, a caseworker for Lucas County Children Services

(LCCSB), testified as to her contact with the Jordan family, which first

occurred in October 1988 when Mary, Lorraine and Nathaniel were

removed from their home for approximately six months following

2. allegations of neglect and physical abuse. In November 1992, custody of

Mary, Lorraine, Nathaniel and another brother was transferred to Lorrine

Saunders, their paternal grandmother. On December 1, 1993, Lorraine was

removed from her grandmother’s home because she had been sexually

acting out with her siblings and was placed in foster care. She testified

further that the family’s case with LCCSB was opened again in January

1993, when the agency received a referral alleging sexual abuse of Mary,

Lorraine and Nathaniel.

Lorrine Saunders then testified that she had custody of Lorraine until

December 1993 and that she still had custody of Mary and Nathaniel.

Saunders stated that in the fall of 1993 Mary came to her and expressed

problems relating to her father and that she and Mary discussed the

concerns with a psychologist. Between November 1992 and November

1993, Mary told Saunders that she had been sexually abused more than

once and that she took Mary for medical exams at least two times as a

result of such disclosures. She testified further that when the children lived

with her Mary and Lorraine walked to and from school and that there were

many occasions when they arrived home late.

Mary Jordan, nine years old, testified that there were times when she

would see her father as she walked home from Cherry School and that he

would take her, her sister Lorraine and Dadie, another of her brothers, into

3. his house, which was near the school. Mary further testified that her father

touched all of them “in our private parts.” Mary then stated that he touched

her in her “private parts” and stated “right here * * * and in the back” and

pointed between her legs. She testified further that he put “his private” and

“his fingers” in her vagina and “in the behind.” Mary stated that her father

did the same thing to her brother and sister. Mary then pulled her pant leg

up to show a scar by her knee which she said she got from “* * * Daddy * *

* with a knife.” She stated that he cut her with a knife “[a] whole bunch.”

She stated that she also saw him do the same thing to Nathaniel and

Lorraine. Nathaniel then entered the courtroom and Mary identified a scar

on his ankle and said “Daddy cut him” with a knife.

Lorraine Jordan, thirteen years old, testified that when appellant

lived in the house near Cherry School he promised her money and if she

would go into his house and that he touched her in her “private areas” and

“did inappropriate stuff.” Lorraine testified further that appellant put his

finger and penis in her vagina two or three times.

Linda Lewin, a clinical nurse specialist with the child abuse team at

Medical College of Ohio, testified as to physical examinations she

performed on Mary and Lorraine on December 21, 1993, following

referrals for sexual abuse evaluation. Lewin stated that she performed a

genital exam on Mary, who was then seven years old, and that both genital

4. and anal areas revealed normal findings. Lewin testified that it is possible

that there would be no evidence of anal penetration two to four weeks after

the act. Lewin stated that the exam did not confirm or deny that Mary had

been sexually abused. Lewin testified further that she also performed a

genital examination of Lorraine, then ten years old. Lewin stated that as a

result of the exam it was her opinion that Lorraine had been sexually

abused. She testified further that when she examined Lorraine the child

told her that her father had touched her genitals “inside and outside” with

his “private part.” Lewin testified that Lorraine told her that it hurt when

her father touched her.

At the conclusion of the trial, the jury found appellant guilty of one

count of rape, two counts of felonious sexual penetration and three counts

of felonious assault.

Jordan, supra, 6th Dist. Lucas No. L-96-169,

, *1-5.

{¶ 3} At sentencing on April 16, 1996, appellant was ordered to serve an

indefinite prison term of 15 years to 80 years. On appeal to this court, appellant asserted

that his convictions were against the manifest weight of the evidence. We thoroughly

reviewed the evidence, and found that there was “substantial probative evidence

presented” to support appellant’s convictions. Id. at *7-8. Consequently, we affirmed

the judgment of the trial court.

5. {¶ 4} Approximately 20 years later, on October 5, 2016, appellant filed a motion

for leave to file a delayed motion for new trial under Crim.R. 33(B). The motion was

premised upon newly discovered evidence that was allegedly unavailable to appellant

within 120 days of the original verdict. In the memorandum attached to his motion,

appellant indicated that Mary and Lorraine recently recanted their testimony and now

maintained that their father is innocent of the crimes for which he was convicted.

According to appellant, Mary wrote him a letter in 2015 in which she informed him that

she wanted to “do the right thing by telling the truth” and admitted that she had “lied as a

young child and she wanted to right her wrongs.”

{¶ 5} In support of his motion for leave, appellant attached several affidavits that

were provided by his children. In the first affidavit, Mary stated:

[On] November 19, 1992, [at] age 6, I was sent to live with my step-

grandmother Lorrine Saunders by child protective services. While I was

living with Lorrine Saunders she became very physically abusive to me and

also coached me into saying my father sexually and physically abused me.

I have never been to my father’s apartment and I was never abused by my

father Johnny Jordan * * *. My father Johnny Jordan is [an] innocent man

that was made a victim. Both child protective services and the courts

[were] aware of the abuse and coaching by Lorrine Saunders but [it] was

ignored.

6. {¶ 6} Similarly, in the second affidavit, Nathaniel provided:

[On] November 19, 1992, [at] age 6, I was sent to live with my step-

grandmother Lorrine Saunders by child protective services. While living

with Lorrine Saunders I was physically and mentally abused by her and I

also witnessed Lorrine Saunders abusing, coaching and forcing my sister

Mary Jordan into lying on my father Johnny Jordan * * * and other siblings

of our family. I was also used in my father’s conviction and my father has

never [done] anything to harm myself or my siblings. Also child protective

services and the courts [were] aware of the abuse and coaching by Lorrine

Saunders.

{¶ 7} In addition to the affidavits provided by Mary and Nathaniel, appellant

attached the affidavits of Akisha Jordan, John Wesley Jordan, and Johnnie Jordan, Jr. In

Akisha’s affidavit, she stated that she was placed with Lorrine Saunders as a teenager.

Because she was older than the other children at the time of the placement, Akisha stated

that she was “able to escape the abuse by running away.” Akisha went on to state: “when

my little sister and brother finally got the opportunity to talk to me they told me what had

really happened. I know it was the truth because of what I went through in the short time

living with Lorrine Saunders, [and I] also know they wouldn’t lie about something like

this.” Akisha testified that she withheld this information because she was pregnant at the

time and was “on the run from child protective services.” She insisted that she, along

7. with her siblings, had tried to tell the truth, but nobody was willing to listen. Ultimately,

Akisha stated that appellant “has never done anything to harm [her] or [her] siblings.”

{¶ 8} In John Wesley’s affidavit, he testified, in relevant part:

Lorrine Saunders was very abusive to myself and my younger

siblings in many ways. When I was placed with Lorrine Saunders I was

physically, mentally and lied on (sic). Lorrine Saunders also made my little

sister Mary Jordan lie on me and say I was sexually abusing her. I also

walked to and from school every day with Mary Jordan, Lorraine Jordan,

and Nathaniel Jordan and I [know] my father Johnny Jordan * * * did not

do what he is accused of. We have never been to our father’s apartment.

But for some reason I was never brought back up and I never testified.

How did that happen? Because it never happened. And I would have told

the truth! I love my father and he has never done anything to harm myself

or my siblings.

{¶ 9} Finally, Johnnie Jr. provided an affidavit in which he acknowledged that he

did not “know much about what happened with [his] father.” Despite this unfamiliarity,

Johnnie Jr. testified that he knew that appellant would never commit the acts he was

found guilty of committing, and he stated that his siblings were not untruthful in their

recantations.

{¶ 10} On October 17, 2016, the state responded to appellant’s motion for leave by

filing a memorandum in opposition. In its memorandum, the state argued that the

8. evidence relied upon by appellant in support of his motion was not newly discovered

because appellant had previously discussed the possibility of evidence to support a

motion for a new trial with the Ohio Public Defender’s Office in 1997. The state

supported its argument by referencing a May 2, 1997 letter from the Ohio Public

Defender’s Office, in which appellant was informed: “If your daughter [Akisha] has

evidence that would show you are not guilty, we may be able to file a Motion for a New

Trial. If you send her address to me, I can have an investigator go and talk to her about

what she knows.” The May 2, 1997 letter was attached to the state’s memorandum in

opposition. Because it was clear that appellant had discussed the possibility of a new trial

with the Ohio Public Defender’s Office, the state argued that he could not demonstrate

that he was unavoidably prevented from discovering the evidence he cited in support of

his present motion for new trial.

{¶ 11} Additionally, the state asserted that the affidavits attached to appellant’s

motion for new trial were not credible. In support of this assertion, the state points to the

fact that Akisha acknowledged in her affidavit that she had no personal knowledge of the

facts and circumstances surrounding this case, but instead relied upon inadmissible

hearsay to form her conclusions. Likewise, the state noted that Johnnie Jr. had no

personal knowledge of the facts of this case. Moreover, the state highlighted the similar

wording used in all of the affidavits, and surmised that the affidavits were not written by

the affiants, but were instead drafted by one person. Finally, the state urged that the

9. affidavits contradicted the evidence introduced at trial with respect to appellant’s physical

abuse of Mary and sexual abuse of Lorraine.

{¶ 12} On February 7, 2017, appellant filed his motion for new trial, in which he

advanced the same arguments that were made in support of his motion for leave.1

Appellant attached the affidavits referenced above, as well as additional affidavits from

Mary and Lorraine that set forth the details behind their recantations. In Mary’s

additional affidavits, she testified that she

felt pressured into testifying by my grandmother and by children

services. I was pressured to lie that my dad had abused me and my siblings

with the threat of emotional and physical abuse in my grandmother’s home.

I had been abused before my dad’s trial and I was frightened that I would

be abused again if I did not say that my dad had abused us. I remember

even being promised money and ice cream to go to the trial and tell the

story that my dad had abused us.

{¶ 13} Similarly, in Lorraine’s additional affidavit, she stated: “I was pressured

into testifying falsely against my father as a child. My siblings and I were mentally and

1 At the time of appellant’s filing of his motion for new trial, the trial court had not yet ruled on appellant’s motion for leave to file the motion for new trial. As set forth infra, the trial court granted appellant leave to file the motion for new trial in its May 29, 2018 order denying the motion.

10. physically abused in my grandmother’s home. I was terrified of what the repercussions

would be if I did not tell the lies my grandmother wanted me to tell about my father.”

{¶ 14} On March 17, 2017, the state filed a response to appellant’s motion for new

trial, in which it indicated that the “matter has been resolved by agreement of the parties”

and therefore did not formally oppose the motion. In its response, the state reserved the

right to file an opposition to appellant’s motion for new trial in the event that appellant

failed to comply with the terms of the agreement. The agreement between the parties did

not materialize for reasons that are not made clear by the record. Consequently, the

parties agreed to an evidentiary hearing on appellant’s motion for leave to file a delayed

motion for new trial and motion for new trial. The state did not file an opposition to

appellant’s motion prior to the hearing.

{¶ 15} On October 30, 2017, the trial court held the aforementioned evidentiary

hearing on appellant’s motions. Six witnesses testified at the hearing. The first witness,

Dr. Naeem Khan, is a clinical psychologist who was retained by appellant to perform a

psychological evaluation. During his testimony, Khan stated that he met with appellant

on two separate occasions, for a total period of about five hours. As a result of

observations drawn from appellant during the meetings, Khan authored a report that was

admitted into evidence, in which he concluded that appellant was intellectually disabled,

mentally ill, and physically frail.

{¶ 16} Following Khan’s testimony, Lorrine was called out of order by the state as

the second witness. Lorrine testified that she received custody of Nathaniel, John

11. Wesley, Lorraine, and Mary in November of 1992. She went on to explain oddities in

Mary’s behavior that she first noticed in the summer of 1993. According to Lorrine,

Mary began to act as though she was “sore in her private parts.” Lorrine explored the

issue with Mary, and Mary informed Lorrine that Lorraine “had hurt her down there with

her hand.” Upon learning this, Lorrine notified the children’s counselor, who informed

Children’s Services about the situation. The counselor conducted one-on-one interviews

with the children. Ultimately, Children’s Services moved Lorraine from Lorrine’s home

on December 1, 1993, over two years prior to appellant’s trial. Lorraine did not return to

Lorrine’s home. According to Lorrine, Children Services removed Lorraine from the

home for two reasons: (1) due to inappropriate contact with Mary; and (2) in order “to

keep her away from her father.”

{¶ 17} During her testimony at the evidentiary hearing on appellant’s motion for

new trial, Lorrine denied the allegations that she coerced Mary and Lorraine into falsely

accusing appellant of sexually molesting them. According to Lorrine, Mary and Lorraine

asked her what they should say at trial, and she directed them to “tell the truth, that’s all

you can do is tell the truth.” When asked if Mary and Lorraine ever informed her that

they had falsely accused appellant of sexual molestation, Lorrine responded: “no, they

never said to me that they had lied about anything.”

{¶ 18} At the close of her testimony, Lorrine recalled a conversation with Lorraine

from earlier in 2017, during which Lorraine informed Lorrine that she was “saying the

things that they said about me * * * to help Mary get the father out.” Lorrine went on to

12. state that Lorraine and Nathaniel each informed her that appellant would be filing a

lawsuit when he was released from prison.

{¶ 19} Mary was the third witness to testify at the evidentiary hearing. For her

part, Mary recanted the testimony she previously provided as a child in appellant’s 1996

trial. Specifically, Mary stated that she was not sexually or physically abused by

appellant as a child, and she indicated that she did not observe any physical abuse from

appellant directed at Nathaniel. When asked why she provided incriminating testimony

as a child, Mary answered: “Because that’s what [Lorrine] told us. And well, with the

scars * * *. Um, so that’s where I got the scars from, because she told us that every scar

that we had, our mother and father did.” Mary went on to state that Lorrine routinely

employed physical discipline. According to Mary, Lorrine forced her and her siblings to

claim that they were being molested by one another. Mary recounted one particular

instance in which Lorrine allegedly forced her to make a false accusation against

Lorraine, as follows:

Um, one day, um, I came in and I went to the bathroom. I was

sitting on the toilet. The door was open because we didn’t close [the]

bathroom [door] – I don’t know if the bathroom door was closed, but I

know [Lorrine] walked in. And as she was walking in, I was looking in the

toilet. I had just got done doing number two and I was curious.

I was looking in the toilet and she [was] like Lorraine been sticking

her finger in there da, da, da. And I’m like, no. Lorraine, I knew she did, I

13. know she did. You better tell me. I know Lorraine been touching you.

Where she touch you at? And I told her, okay, yes, she touched me. She

touched me in a bad house. I came up with something. You had to keep us

with the lies because the lies [were] going so easily in that house. You had

no choice but to lie.

{¶ 20} When asked whether the counseling she received as a child was precipitated

by her claim that she was molested by appellant, Mary indicated that she “never claimed

my father had touched me.” Mary testified that Lorrine told her and Lorraine that

appellant molested them, and then coached them to testify to that fact.

{¶ 21} According to her hearing testimony, Mary informed authorities of

appellant’s innocence following her emancipation. Mary testified that her reports were

not taken seriously by the police. Eventually, in May 2015, Mary received a letter from

the Parole Board stating that appellant was scheduled for a parole hearing in September

2015. In response to the letter, Mary contacted the Parole Board and informed the board

that she was “coached and abused through this whole situation and my father is an

innocent man and always has been.” Mary then prepared affidavits on behalf of herself

and her siblings, and submitted those affidavits to the parole board after her siblings

signed them. Mary clarified that Lorraine prepared her own affidavit. Ultimately, a

hearing before the Parole Board was held, and appellant was subsequently released on

parole.

14. {¶ 22} At the conclusion of direct examination, appellant’s counsel asked Mary if

she was recanting her testimony in order to pursue damages from a civil lawsuit, to which

Mary responded:

No, I’m not. My main thing is to get the truth out, not just my father

just being outside walking around, but my father did not commit these

crimes. He deserve[s] to be walking around here not being labeled as a sex

offender.

And, yes, if you want to know if I plan on suing people, if I have any

opportunity after this, I do. But it’s all about the truth.

{¶ 23} On cross examination, the state questioned Mary regarding the testimony

she provided at appellant’s trial. Specifically, the state asked Mary about her testimony

that appellant had cut her with a butcher knife, which left scars on her legs. Mary

insisted that appellant did not cause the scars, and stated that her “whole testimony was a

lie.” When pressed further about how she received the scars, Mary stated that she did not

know what caused the scars.

{¶ 24} The state then explored Mary’s testimony that Lorraine had touched her

and it hurt, which was supported by a report from Mary’s counselor. In the report, the

counselor indicated that Mary told her that Lorraine “climbs into Mary’s bed, takes off

her underwear and simulates intercourse and also sticks her finger in Mary’s vagina.”

Mary stated that this report was a lie prompted by Lorrine.

15. {¶ 25} In response to Mary’s claim that her prior testimony was the product of

coercion from Lorrine, the state asked Mary why she did not recant her testimony once

she was removed from Lorrine’s care. Mary responded that she attempted to inform the

police of her untruthful testimony, but nobody would listen to her. No police reports

were filed to support Mary’s assertion.

{¶ 26} Lorraine was the fourth witness to testify at the evidentiary hearing. As of

the date of the hearing, Lorraine had not seen appellant since his trial. Lorraine testified

that appellant was innocent of the charges for which he was convicted. She stated that

she informed the Parole Board of appellant’s innocence in 2015, prompting appellant’s

release from prison.

{¶ 27} Regarding her childhood, Lorraine testified that she was removed from her

parents’ care and placed in various foster homes prior to being placed with Lorrine.

Lorraine indicated that she was molested while in foster care. Lorraine also

acknowledged that she would molest other children while she was in foster care.

{¶ 28} When Lorraine was approximately ten years old, she moved into Lorrine’s

home along with Mary, Nathaniel, and John Welsey. Lorraine described the living

conditions at Lorrine’s home as “torture.” She explained that Lorrine would beat her

with extension cords and belts until she acknowledged seeing appellant. When pressed

further as to why she and her siblings were being beaten by Lorrine, Lorraine stated:

“Because we [were not] listening to what she was saying. She wanted us to say that my

dad molested me. We refused to say it.”

16. {¶ 29} Consequently, Lorraine attempted to run away from home on a number of

occasions. According to Lorraine’s hearing testimony, she attempted to set fire to

Lorrine’s home, and was consequently removed from the home prior to appellant’s trial.

After moving out of Lorrine’s home, Lorraine was placed in a group home. She

subsequently lost contact with Lorrine and her siblings.

{¶ 30} On the day of appellant’s trial, Lorraine was reportedly transported to the

court by a stranger, who coached her to testify against appellant. Lorraine also testified

that her “teacher parents” in the group home encouraged her to testify against appellant

so that she could be adopted. Further, Lorraine explained that Lorrine and Children’s

Services contrived her testimony and manipulated her into making false allegations

against appellant at his trial. Motivated by a desire to be adopted, Lorraine testified at the

hearing that she fabricated her testimony at trial.

{¶ 31} At the conclusion of appellant’s direct examination of Lorraine, counsel

asked Lorraine whether she was “hoping to cash in on this and make any money off of

this.” Lorraine responded:

I mean if I could, I sure would, but no. I want my daddy to get his

life back. I want him to walk around. I don’t want him having that child

molestation on him everywhere he [goes] because I know you all put the –

you know, you go to jail for molestation, everywhere you move, everybody

[knows].”

17. {¶ 32} The fifth witness to testify at the evidentiary hearing was Kristine

Buffington. Working as a clinical therapist at the time of appellant’s trial, Buffington

interviewed Lorraine, Mary, John Wesley, Nathaniel, and Lorrine in June 1993, and

treated the children’s mental health issues on an ongoing basis thereafter. At the time of

the interview, Lorraine reported that appellant sexually abused her by simulating

intercourse and rubbing his penis on top of her vagina. Throughout the treatment

process, the children made no mention that they were being forced by Lorrine to falsely

accuse appellant of molestation, nor did they report Lorrine for physical or emotional

abuse. Buffington explained that she would normally separate the children from Lorrine

during the treatment sessions.

{¶ 33} The sixth and final witness at the hearing was Laura Calvin. Calvin was

the Lucas County Children’s Services caseworker assigned to the children in June 1993

after the agency received reports of sexual acts taking place among the children. During

her investigation into the reports of sexual acts, Calvin interviewed Lorraine, Mary, John

Wesley, and Nathaniel. According to a memorandum prepared by Calvin prior to

appellant’s trial, and admitted at the evidentiary hearing, Mary informed Calvin that

“Lorraine does nasty stuff – comes to my bed and pulls up our nightgowns. She gets on

top and pushes down hard with her private, not touching with fingers.” Mary went on to

indicate that others, including appellant, had committed similar acts. Lorraine admitted

to the sexual acts described by Mary, and informed Calvin that appellant “did it to me:

Get on top, didn’t do anything, pull pants down, but I don’t know!” At the hearing,

18. Calvin responded in the negative when she was asked whether the children reported that

they were being coerced into telling lies about appellant.

{¶ 34} Following the hearing, the parties submitted post hearing briefs. On May

29, 2018, the trial court issued its decision. In its decision, the trial court articulated the

standard governing a motion for new trial under Crim.R. 33, and specifically applied that

standard in the context of new evidence generated by recantations. The trial court

examined the evidence generated at the evidentiary hearing and found that the testimony

provided by Mary and Lorraine was not credible, and thus their recantations not

believable. The trial court characterized the testimony as “uncorroborated, inconsistent

with the record, belied by [Mary and Lorraine’s] actions and conduct over the years

preceding their testimony before the parole board, and motivated by a desire for financial

gain from a lawsuit.” By contrast, the trial court found Lorrine’s testimony credible. As

a result, the trial court granted appellant’s motion for leave to file a delayed motion for

new trial, but denied appellant’s motion for new trial.

B. Assignments of Error

{¶ 35} Following the trial court’s denial of his motion for new trial, appellant filed

a timely notice of appeal, and now assigns the following errors for our review:

FIRST ASSIGNMENT OF ERROR: The trial court abused its

discretion in failing to consider the entire record in denying a motion for

new trial.

19. SECOND ASSIGNMENT OF ERROR: The trial court erred in

failing to consider whether there was a strong probability that the new

evidence would change the result of a new trial.

II. Analysis

{¶ 36} “A motion for new trial pursuant to Crim.R. 33(B) is addressed to the

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

discretion.” State v. Schiebel,

,

(1990), paragraph one of

the syllabus. An abuse of discretion connotes that the trial court’s attitude was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶ 37} A motion for new trial under Crim.R. 33(B) may be premised upon the

discovery of newly-discovered evidence. Crim.R. 33(A)(6). To grant a new trial based

upon 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.

State v. Petro,

,

(1947), syllabus.

20. {¶ 38} Here, appellant’s motion for new trial is premised upon the fact that Mary

and Lorraine have recanted their trial testimony and now assert that appellant did not

sexually abuse them when they were children. “[N]ewly discovered evidence which

purportedly recants trial testimony is ‘looked upon with the utmost suspicion and must be

viewed with strict scrutiny.’” State v. Haynes, 11th Dist. Ashtabula No. 2012-A-0032,

, quoting State v. Bradley,

,

(8th Dist. 1995). Thus, “evidence that a key witness for the prosecution gave

false testimony at trial does not automatically warrant a new trial.” State v. Beckett, 6th

Dist. Lucas Nos. L-97-1073 and L-98-1272,

, *21 (Mar. 3,

2000), citing

. However, such evidence may constitute grounds for a new

trial if it creates a strong probability that the outcome of the trial would have been

different.

citing Dayton v. Martin,

,

(2d

Dist. 1987).

{¶ 39} A two-step analysis is applied to cases where significant witnesses recant

their trial testimony. Toledo v. Easterling,

,

(6th

Dist. 1985), paragraph three of the syllabus. First, the trial court must determine which

version of the contradictory testimony offered by the recanting witness is credible and

true, and whether the recanted testimony is to be believed.

“Some relevant

considerations in weighing the competing versions of testimony are: whether the judge

reviewing the new trial motion also presided over the trial; whether the witness is a

relative of the defendant or otherwise interested in his success; and whether the new

21. testimony contradicts evidence proffered by the defense at trial.” State v. Wright, 7th

Dist. Harrison No. 11 HA 2,

(citation omitted). Second, the trial

court must evaluate whether the witness’s testimony could have affected the outcome of

the trial. Easterling at paragraph three of the syllabus.

{¶ 40} In appellant’s first assignment of error, he argues that the trial court erred in

failing to consider the entire record prior to denying the motion for new trial.

{¶ 41} In its opinion and judgment entry, the trial court does not set forth its own

summary of the evidence produced at trial. Instead, the trial court quotes our summary of

the evidence from Jordan, supra, 6th Dist. Lucas No. L-96-169,

.

{¶ 42} Looking only to the trial testimony portion of the trial court’s entry, it may

appear that the court simply relied upon our summation of the facts rather than

independently reviewing the trial record. However, as noted by the court elsewhere in its

entry, the judge that reviewed appellant’s motion for new trial also presided over

appellant’s trial, and was therefore familiar with the facts of this case. Additionally, the

state referred to the trial transcript during its questioning of witnesses at the evidentiary

hearing. Moreover, the trial court referenced certain portions of the trial testimony in its

analysis. For example, the court stated in its entry that “Mary’s testimony at the hearing,

and in an affidavit, that her grandmother coached her is contradicted by the trial

transcript. At the trial she testified that she asked [Lorrine] to help her prepare for her

testimony.” The court also referred to Lorraine’s trial testimony in its decision.

22. {¶ 43} Appellant asserts that the trial court failed to consider inconsistencies in the

trial record, arguing that the state’s trial evidence was “not strong.” The trial record

belies appellant’s characterization of the trial evidence. Indeed, Mary testified at trial

that appellant penetrated her vagina and buttocks with his finger and penis. Similarly,

Lorraine testified that appellant penetrated her vagina with his finger and penis.

Moreover, Mary testified that appellant had cut her leg with a knife, which was supported

by a scar that was observed at trial.

{¶ 44} Next, appellant argues that the trial court acted unreasonably when it found

that Mary and Lorraine were not credible witnesses because their recantations were

motivated by the possibility of financial gain. Specifically, appellant contends that the

trial court’s credibility determination was the product of “undue and misguided

emphasis” on Lorrine’s testimony, in which Lorrine indicated that she had heard from

Lorraine and Nathaniel that they were saying things about her to help Mary get appellant

out of prison so that he could file a lawsuit seeking money damages.

{¶ 45} As to the trial court’s credibility determination, we are mindful that such

determinations are primarily for the trial court as the trier of fact in this case. State v.

Bradley, 8th Dist. Cuyahoga No. 97333,

, citing State v. DeHass,

,

(1967). This is because the trial court was best able

“to view the witnesses and observe their demeanor, gestures, and voice inflections, and

use these observations in weighing the credibility of the proffered testimony.” State v.

Wilson,

,

,

, ¶ 24. From its unique

23. vantage point, the trial court is able to take note of any inconsistencies and resolve them

accordingly, “believ[ing] all, part, or none of a witness’s testimony.” State v. Raver, 10th

Dist. Franklin No. 02AP-604,

, ¶ 21, citing State v. Antill,

, 67,

(1964).

{¶ 46} Taking these principles into consideration, we find no indication in the

record that the trial court’s credibility determination should be overturned. Even after

discounting the value of Lorrine’s testimony as to the motivation behind Mary and

Lorraine’s testimony, both Mary and Lorraine acknowledged that they would pursue a

lawsuit if possible. Indeed, Mary testified concerning the potential of a lawsuit and

stated: “And, yes, if you want to know if I plan on suing people, if I have any opportunity

after this, I do.” Therefore, we find no merit to appellant’s argument that the trial court

relied exclusively on Lorrine’s testimony when concluding that Mary and Lorraine were

recanting in order to pursue a lawsuit.

{¶ 47} In light of the trial court’s reference to the record throughout the analysis

section of its opinion and judgment entry denying appellant’s motion for new trial, and

mindful of the fact that the judge who denied appellant’s motion is the same judge who

presided over appellant’s trial, we find no merit to appellant’s assertion that the trial court

failed to examine the entire record before it issued its decision denying the motion for

new trial. Accordingly, appellant’s first assignment of error is not well-taken.

{¶ 48} In his second assignment of error, appellant contends that the trial court

failed to consider whether there was a strong probability that the new evidence would

24. change the result of a new trial. In his argument, appellant cites the appropriate two-step

analysis from our decision in Easterling. As noted above, the second step of the analysis

requires a trial court to evaluate whether the witness’s testimony could have affected the

outcome of the trial. Importantly, however, the second step of the analysis only applies

when the trial court has first determined that the recanted testimony is to be believed.

Stated differently, “If the trial court is satisfied that the trial testimony is true, it need not

proceed to the second question to determine the probability that the new evidence will

change the original result.” State v. Fuson, 5th Dist. Knox No. 03CA11, 2004-Ohio-

2490, ¶ 12, citing

26 Ohio App.3d at paragraph three of the syllabus,

. Having already concluded that the trial court did not abuse its discretion

in concluding that the recanting witnesses were not credible, we find no error in the trial

court’s failure to address whether the new evidence would change the result of a new

trial.

{¶ 49} Accordingly, appellant’s second assignment of error is not well-taken.

III. Conclusion

{¶ 50} Having found appellant’s assignments of error not well-taken, the judgment

of the Lucas County Court of Common Pleas is hereby affirmed. Appellant is ordered to

pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

25. State v. Jordan C.A. L-18-1147

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Christine E. Mayle, P.J. _______________________________ Gene A. Zmuda, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

26.