COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67036 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION CLINTON DUNLAP : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 13, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-292550 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES DRAPER, ESQ., Cuyahoga Cuyahoga County Prosecutor County Public Defender JOHN R. KOSKO, ESQ. DONALD GREEN, ESQ. Assistant Prosecuting Attorney Assistant Public Defender The Justice Center The Marion Bldg., Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 - 2 - SWEENEY, JAMES D., P.J.: Defendant-appellant Clinton Dunlap ("Dunlap"), date of birth March 7, 1968, appeals from his jury trial conviction of one count of Felonious Sexual Penetration [R.C. 2907.12(A)(1)(b)], to wit, insertion of his finger in the vagina of the victim who was under the age of thirteen at the time of the offense, Sunday, 1/ December 27, 1992. For the reasons adduced below, we affirm. A review of the record on appeal indicates that immediately prior to the start of the trial on October 4, 1993, the court conducted an in-chambers voir dire competency examination of the victim, Miss Alline Selvage ("Alline"), date of birth December 13, 1985. At this examination, Alline stated that: (1) she is seven years old; (2) she did not know the name of the street where she lives or the house number; (3) she had attended school at Woodland Hills Elementary School, but goes to another school now; (4) she could not remember the name of her present school; (5) she is in the first grade and her teacher's name is Ms. Dowell, whom she considers to be a good teacher; (6) she has two brothers, age six years and three and a half years, and a sister, age three; (7) she identified her favorite colors and correctly matched those colors to items of clothing she was wearing; (8) her best friend is Amy, and she likes to play when not in school; 1/ Dunlap was acquitted by the jury of a second count of Felonious Sexual Penetration involving digital penetration of the victim's rectum. A third count of Felonious Sexual Penetration was nolled at the beginning of the trial. - 3 - (9) she knows Dunlap by the name "Doug Clinton" and did not see 2/ him in the chambers ; (10) her birthday is December 18, at which time she will be eight years old; (11) when she doesn't tell the truth she gets a "butt-whoopin," which is not good; (12) she tries to always tell the truth, but she has received three "butt whoopins" from her mother; (13) she knows that it is wrong not to tell the truth; (14) not telling the truth can hurt other people; (15) she knew that this day was a school day but did not know the name of the day; (16) she attends Sunday school, and is driven there by a lady other than her mother; (17) her mother told her to tell the truth in court. Over the objections of defense counsel, Alline was found to be competent to testify. The first witness to testify on behalf of the prosecution was the mother of Alline, Mrs. Sherri Selvage, who stated in pertinent part as follows (R. 47-91): (1) in December of 1992 she, her boyfriend (James Fernette), and her four children lived at 3576 Kimmel Avenue, Cleveland, Ohio; (2) Alline presently attends Marion Sterling Elementary School, but attended Woodland Hills Elementary School in 1992; (3) a lady from the church takes Alline to Sunday school, which lasts from approximately 10:00 a.m. until 1:30 p.m.; (4) she does not know the name or location of the church; (5) after Sunday school, the lady from the church takes Alline to Mr. David Bell's house on Hamm Avenue; (6) Mr. Bell, who has three children of his own, is a friend of the witness; (7) on the date of the offense, Dunlap brought Alline 2/ Dunlap was in chambers during the examination of Alline. - 4 - home from Mr. Bell's house between 1:30 p.m. and 2:00 p.m.; (8) Alline was crying and shaking when she was dropped off by Dunlap; (9) Dunlap is Mr. Bell's stepson; (10) when she asked Alline what was wrong, Alline cried harder and told the witness that "Clinton" had thrown her on the bed in the bedroom, removed his pants, and was "messing with her" by inserting a middle finger in her vagina, which Alline refers to as her "monkey"; (11) Alline cried for approximately twenty minutes while clinging to the witness's lap, a behavior from Alline which the witness had never seen before; (12) the witness, accompanied by Alline, then went to Mr. Bell's house at approximately 3:00 p.m. and confronted Dunlap, the only adult person at the house, who would not tell the witness his name or social security number and denied molesting Alline; (13) while confronting Dunlap, Alline, crying, pleaded with the witness to not allow Dunlap to bother her; (14) the witness slapped Dunlap; (15) the witness then took Alline to St. Alexis hospital, where a female doctor examined Alline and the police talked to the witness; (16) after taking Alline home, Alline was afraid and stayed at the witness's side, would not play outside, and also awoke at night screaming due to nightmares; (17) Alline was wearing a dress, leotards, shoes, and a coat when she went to Sunday school on the date of the offense; (18) the witness was investigated by the Department of Human Services from April through October, 1992, regarding allegations concerning the hygiene of her children and her apartment on Lester Avenue; (19) Alline would not allow a male doctor at the - 5 - hospital examine her; (20) Alline told the witness that she (Alline) had seen Dunlap molest Mr. Bell's daughter, Angela, in a manner similar to the acts perpetrated on Alline; (21) she told Alline to tell the truth in court, but did not coach Alline as to the content of the proposed testimony; (22) the complaint to the Department of Human Services was resolved by moving the family from the dilapidated apartment they were living in to better, cleaner housing on Kimmel Avenue. The second witness for the prosecution was Alline, who, repeating her previous competency examination testimony and corroborating her mother's testimony, added in pertinent part as follows (R. 93-129): (1) Dunlap touched her "private" with his middle finger, inserting it into the vaginal cavity, which hurt, and inserted a thumb in her rectum; (2) the offense happened in the bedroom by the bathroom at Mr. Bell's house; (3) Dunlap placed her on the bed at the time of the offense; (4) Mr. Bell's daughters, Crystal and Angela, were in the living room at the time of the offense; (5) she told Crystal Bell about the molestation at issue; (6) Dunlap put on a brown cat mask during the molestation; (7) she demonstrated the acts of molestation to the jury on an anatomically correct doll; (8) she could not identify Dunlap in the courtroom, but did tell her mother that Dunlap had molested her; (9) Dunlap removed only her skirt; (10) she does not know the names of her Sunday school teacher or the lady who took her to the Sunday school; (11) the name "Clinton", in reference to Dunlap, was told to her by her friend, Angela Bell; (12) the name "Doug Clinton", in reference - 6 - to Dunlap, was told to her by her friend, Kimberly Bell; (13) the molestation took place in Mr. Bell's bedroom; (14) on the day of the offense, Dunlap had been removing wallpaper from a room in Mr. Bell's house; (15) she was told by Kimberly Bell that Dunlap had molested Kimberly in the bathtub; (16) in Mr. Bell's bedroom there are, in addition to a bed, brown chairs, a love seat, and a television; (17) Dunlap, the man who touched her "monkey", drove her home after the offense. The third witness for the prosecution was Dr. Sandra Chisar, who stated in pertinent part the following (R. 134-148): (1) she is the emergency room medical doctor who examined Alline at St. Alexis Hospital on the date of the offense at 2:45 p.m.; (2) her examination was limited to the child's external genitalia; (3) the examination revealed a slight redness around the vaginal orifice, but no other abrasions or marks; (4) Alline told the witness that the molester had touched her "monkey", aka vagina, inserted the finger into the vagina, which hurt the victim, and had kissed the child on the lips; (5) Alline appeared to be a little apprehensive prior to the examination, but settled down and was very open and forthcoming as the examination continued; (6) the witness was not completely sure of the cause of the vaginal redness as anything that could cause irritation to the area will cause redness in the area; (7) there was no vaginal discharge; (8) there was no trauma, bruising, or objective evidence of penetration to the child's vaginal area, therefore no internal pelvic exam was performed; (8) the child was not - 7 - tearful, sobbing, or overtly anxious when she spoke of the event, but she was a little giddish and giggly. The fourth witness for the prosecution was Mr. David Bell, who stated in pertinent part as follows (R. 148-164): (1) he is a forty-four year old widower with three children and lives on Hamm Avenue; (2) Dunlap is his stepson; (3) at the time of the offense, Dunlap was living in an apartment attached to Mr. Bell's house; (4) the house has one floor and an attic, with all bedrooms on the first floor; (5) the witness left home on the date of the offense between noon and 1:00 p.m. and went to work; (6) he has a red car, which Dunlap would use, but the witness could not recall whether he or Dunlap drove the children home to Kimmel Avenue that afternoon; (7) later that day, Dunlap picked the witness up at work while complaining that Alline's mother had struck him and accused him of molesting Alline; (8) the witness returned to the house and asked Alline's mother to leave, which she did; (9) no one ever calls the defendant "Clinton" around the house, rather, he is referred to as "J.R." or "Junior"; (10) Dunlap has baby-sat for the witness's children many times, with no indication of abuse to the children; (11) he does not have a white bedroom, nor does he have a loveseat or brown chairs in his bedroom, but he did have a brown chair in the house; (12) his bedroom has no solid door in the doorway, but does have a curtain in the doorway; (13) Mrs. Selvage never told him about Kimberly's alleged molestation in the bath. The fifth witness for the prosecution was Mr. Lawrence J. Petrus, who stated in pertinent - 8 - part the following (R. 165-176): (1) he is employed as a social worker with the Department of Human Services and investigated Alline's allegation of sex abuse concerning Dunlap; (2) Alline disclosed to him, and demonstrated with anatomically correct dolls, the allegation that Dunlap had inserted a finger in her vagina, or "monkey, and her anus while he wore a cat mask; (3) Alline claimed that this incident happened before Christmas, that Dunlap was naked, and that Dunlap unzipped her pants; (4) the witness interviewed Angela and Kimberly, and from those separate interviews did not conclude that Angela and Kimberly had been sexually abused, in contradiction to the allegation of Alline and Mrs. Selvage. At this point, the court conducted a voir dire competency examination of nine year old Miss Crystal Lynn Kincaid, the child stating the following prior to the court finding that she was competent to testify (R. 180-192): (1) her birthday is November 9th; (2) she attends fourth grade at Brooklawn Elementary School; (3) her teacher's name is Mrs. Paloom; (4) she has a younger brother, Steven, who is four years old; (5) her dog's name is Rampage; (6) she would get whipped by her mother if she doesn't tell the truth; (7) she has never lied to her mother, and always tells the truth because its wrong to lie; (8) she attends a Christian church and Sunday school; (9) she lives at 4532 West 150th Street; (10) the witness would go to Sunday school with Alline, Angela, and Kimberly. - 9 - The sixth witness for the prosecution was Miss Crystal Kincaid, who restated her previous examination testimony and added in pertinent part the following (R. 193-204): (1) Alline is her cousin; (2) at the time of the offense, she was in the bathroom at Mr. Bell's house and observed Alline in Mr. Bell's bedroom with Angela, Kimberly, and the defendant, as Alline screamed and cried and called for Crystal as he pulled up her pants; (3) Alline ran into the bathroom and locked the door; (4) she did not actually see him insert his finger in Alline's buttocks, but did see him pull up her pants; (5) this happened on Christmas day, after a Sunday school session, but may have 3/ happened after Christmas ; (6) Alline's brother, Lon aka "David Peepers", was also in the bedroom. At this point the prosecution rested and the defense moved for acquittal pursuant to Crim.R. 29. This motion was overruled after some debate. The first witness for the defense was Miss Angela Dunlap, who stated in pertinent part as follows (R. 226-244): (1) she is ten years old and her father is Mr. Bell; (2) the defendant is her stepbrother; (3) she had gone to Sunday school on the day Alline's mother came to the house and slapped the defendant; (4) she did not see Alline cry that day; (5) Alline played hide-and- seek and Nintendo games with her all that day at the house, and did not go anywhere with the defendant alone; (6) she did not see Alline go to Mr. Bell's bedroom and did not see the defendant take his clothes off; (7) no one hurt Alline that day; (8) she 3/ In 1992, Christmas occurred on Friday, December 25th. - 10 - does not know why Alline's mother was mad at "Clinton"; (9) while at Sunday school that day, the class had spent its time making Christmas cards. The second witness for the defense was Miss Kimberly Dunlap, who stated in pertinent part as follows (R. 244-261): (1) she is nine years old and the sister of the previous witness; (2) the defendant is her stepbrother, and Mr. Bell is her father; (3) Alline did not cry while at the house after Sunday school; (4) they did not go into Mr. Bell's bedroom because it is off-limits; (5) the defendant never took Alline into Mr. Bell's bedroom; (6) the defendant never hurt Alline or the witness; (7) the children played hide-and-seek and Nintendo that afternoon at the house; (8) Alline did not tell the witness what had happened that day; (9) while at Sunday school that day, the class had spent its time making Christmas cards. The defendant testified on his own behalf as the third witness for the defense, stating in pertinent part (R. 263-284): (1) he is twenty-four years old and is a ninth grade drop-out; (2) his prior criminal record includes incarceration from October 18, 1989, to his parole on November 13, 1992, for breaking and entering and felonious assault; (3) after being dropped off at the house following Sunday school on the date of the offense, December 20, 1992, the children played while the witness peeled paint from the kitchen walls; (4) he had no communication with the children while he was working; (5) when the children began fighting over the Nintendo game in the living room, he stopped - 11 - working and drove the Selvage children home; (6) none of the children were crying that day; (7) none of the children were in Mr. Bell's bedroom that day; (8) he had no physical contact with the children that day; (9) Mrs. Selvage came by the house later that afternoon in a state of rage, accusing him of having molested Alline, and slapped him, whereupon he left to get Mr. Bell; (10) he never molested Alline or any other child; (11) he did not take his clothes off while the children were at the house that day; (12) he never took Alline anywhere alone, nor did he ever get into the bath with his sister; (13) he knows nothing of any cat mask; (14) he did refuse to give his name and social security number to Mrs. Selvage. At this point the defense rested and renewed its motion for acquittal. This renewed motion was denied. Following the closing arguments of counsel the court instructed the jury as to the applicable law. Following its deliberations, the jury returned the verdicts previously detailed herein. The defendant was then referred to the probation department for the preparation of a presentence investigation report prior to sentencing. On Wednesday, February 2, 1994, a hearing was conducted in open court on defendant's motion for new trial based upon newly discovered evidence pursuant to Crim.R. 33(A)(6) and to reconsider the court's previous denial of defendant's motion for 4/ acquittal made pursuant to Crim.R. 29(C). At the close of the 4/ Crim.R. 29(C) provides: (continued...) - 12 - hearing, the court denied the joint motion, and then sentenced the defendant to the statutorily mandated term of life 5/ imprisonment. This appeal presenting three assignments of error followed. I BY ALLOWING INCOMPETENT MINOR CHILDREN TO TESTIFY, THE TRIAL COURT ABUSED ITS DISCRETION AND THEREBY DEPRIVED APPELLANT OF HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION XVI OF THE CONSTITUTION OF THE STATE OF OHIO. In this assignment, appellant argues that seven year old Miss Alline Selvage and nine year old Miss Crystal Kincaid were, contrary to the determination of the trial court, not competent to testify. 4/ (...continued) (C) Motion after verdict or discharge of jury. If a jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within fourteen days after the jury is discharged or within such further time as the court may fix during the fourteen day period. If a verdict of guilty is returned, the court may on such motion set aside the verdict and enter judgment of acquittal. If no verdict is returned, the court may enter judgment of acquittal. It shall not be a prerequisite to the making of such motion that a similar motion has been made prior to the submission of the case to the jury. 5/ On February 5, 1994, in Cuyahoga Common Pleas Case No. CR- 297883, Dunlap was sentenced to a term of 3 to 15 years for a plea of guilty to burglary. This sentence was run concurrent to the life sentence entered in the case involving felonious sexual penetration. - 13 - In addressing this assignment, we note that the determination of competency involving a child witness is within the sound discretion of the trial court. State v. Frazier (1991), 61 Ohio St.3d 247, 251, 574 N.E.2d 483, 486-487. Furthermore, the Frazier court has elicited five factors which the trial court must consider in determining competency of a child witness under the age of ten years old, to wit: (1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of truth and falsity and (5) the child's appreciation of his or her responsibility to be truthful. Id. at syllabus; also see Schulte v. Schulte (1994), 71 Ohio St.3d. 41, 43-44 (Frazier factors applied, incompetency of four year old child witness upheld); State v. Kelly (Stark, 1994), 93 Ohio App.3d 257, 262-263 (Frazier factors applied, competency of four and six year old child witnesses upheld); Evid.R. 601(A). A review of the voir dire examination record of the two child witnesses as a whole, in light of the Frazier factors, draws us to the conclusion that the trial court's determinations of competency was not an abuse of discretion. Both of the girls explained to the court the ramifications of not telling the truth, the punishment for lying, and the belief that it was wrong to tell a lie. Additionally, both of the girls knew their age and the fact that they had siblings and the age of those - 14 - siblings. Further, both of the girls stated the names of their elementary school teachers and the fact that both girls attend Sunday school. The first assignment of error is overruled. II CLINTON DUNLAP'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS, WAS DENIED WHEN HE WAS CONVICTED OF AND SENTENCED FOR THE CRIME OF FELONIOUS SEXUAL PENETRATION ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW. Our review of this assignment is guided by State v. Jenks (1991), 61 Ohio St.3d 259, 273: In other words, an appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Eley, supra. Thus, in reviewing both weight and sufficiency of the evidence, the same test is applied. The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of facts. Jackson v. Virginia, supra. It must be kept in mind by the appellate court that the jury heard all the evidence and was instructed as to the law and as a result found the accused guilty beyond a reasonable doubt. Moreover, the relevant inquiry does not involve how the appellate court might interpret the evidence. Rather, the inquiry is, after viewing the evidence in the light most favorable to the prosecution, whether any reasonable trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id., 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573-574. (Emphasis added.) - 15 - Also see, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, and State v. Eley (1978), 56 Ohio St.2d 169, 10 O.O.3d 340, 383 N.E.2d 132. R.C. 2907.12(A)(1)(b), Felonious Sexual Penetration, provides in pertinent part: (A)(1) No person without privilege to do so shall insert any part of the body ... into the vaginal or anal cavity of another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when either of the following apply: * * * (b) The other person is less than thirteen years of age, whether or not the offender knows the age of such person. * * * Viewing the evidence in a light most favorable to the prosecution, and keeping in mind that the trier of fact is the judge of witness credibility, we conclude that the trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt based on the evidence admitted at trial. This conclusion is buttressed by the testimony of Alline, who stated that the man who took her home after the incident, who was indisputably the defendant, was the man who inserted his middle finger in her vaginal cavity. Also, there was testimony that Alline was crying and upset at Mr. Bell's house and when she arrived at her home after the incident, indicating that Alline had experienced some sort of trauma while at Mr. Bell's house after Sunday school. The victim's mother stated that Alline had told her that defendant had thrown the victim on a bed and had inserted his finger into the victim's vaginal cavity. Finally, - 16 - there was medical testimony that the area surrounding the victim's vaginal orifice was slightly reddened due to an irritation of some sort. The second assignment of error is overruled. III THE TRIAL COURT ERRED IN DENYING MR. DUNLAP'S MOTION FOR A NEW TRIAL IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE CONSTITUTIONS OF THE UNITED STATES OF AMERICA AND THE STATE OF OHIO. The motion for new trial at issue was filed on December 13, 1993, and had as its basis newly discovered evidence pursuant to Crim.R. 33(A)(6) and R.C. 2945.79. The alleged newly discovered evidence consisted of a police incident report which was contained in the presentence investigation report used in preparation of the sentencing hearing. An unauthenticated copy of this police incident report was attached as an exhibit to the motion for new trial. This police incident report, which listed the occurrence date as Sunday, December 27, 1992, between the hours of 11:00 a.m. to 12:30 p.m. at the Hamm Avenue address of Mr. Dunlap, was prepared on December 28, 1992, by Cleveland Police Patrolman Rossoll and contained the officer's statement of what Mrs. Selvage and Alline Selvage had told him, contained the following narrative statement language by Patrolman Rossoll: ORIGINAL NARRATIVE VICTIM STATES: AT ABOVE TIMES AND LOCATION SUSPECT WAS KISSING HER AND PUT HIS FINGER IN HER MONKEY (MEANING HER VAGINA) SHE ALSO STATES SUSPECT DID THE SAME THING LAST SUNDAY 12/20/92. - 17 - INTERVIEWED VICTIM'S MOTHER WHO STATES HER DAUGHTER CAME HOME FROM CHURCH TODAY AND TOLD HER WHAT HAD HAPPENED. SHE TOOK HER TO ST. ALEXIS HOSPITAL. ALSO INTERVIEWED #2 [Dr. Chisar] WHO STATES SHE HAD ADVISED VICTIM AND MOTHER. RECORD CHECK BY CHMIELEWSKI CLERK REVEALS: SUSPECT WITH SAME NAME TO HAVE CPD #188211. REQUEST SEX CRIMES UNIT FOLLOW UP ON SAME. (Emphasis added) [Explanation added]. The six part standard of review relative to a motion for a new trial based upon newly discovered evidence is provided in State v. Petro (1975), 148 Ohio St. 505, syllabus: 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. (State v. Lopa, 96 Ohio St., 410, approved and followed.) It is also noted that a motion for a new trial 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), 55 Ohio St.3d 71; State v. Williams (1975), 43 Ohio St.3d 88. In this assignment, appellant argues that it was newly discovered evidence that the victim had told the officer that the same type of abuse with Dunlap had happened on December 20, 1992, a week before the present abuse of December 27, 1992, for which - 18 - Dunlap was prosecuted and convicted. It is further argued that this alleged confusion concerning the actual date of the offense would have impeached the credibility of the prosecution's witnesses, buttressed the credibility of the defense's theory of the case, and allowed Dunlap to present proof of an alibi for December 20, 1992. At the hearing on Dunlap's motion for a new trial the following exchange took place between the court and defense counsel, attorney Alan Rossman, relative to the two dates of December 20 and 27, 1992: THE COURT: But Mr. Rossman, from what you have just said and what you argued a moment ago, you had information as trial counsel that there was this contradiction, if you will, or there was this "confusion" if you will or there was this two occasions rather than one, if you will, and you had that at the time of the trial. MR. ROSSMAN: I had it from the Petrus report. THE COURT: Yes. MR. ROSSMAN: Yes. THE COURT: So you had that available to you? MR. ROSSMAN: Yes, sir. (R. 377-378.) From the foregoing exchange, it is evident that the defense had the evidence of the earlier date at the time of trial. Thus, this evidence concerning two dates cannot be said to be newly discovered after the close of the trial. Having failed to - 19 - demonstrate all of the six elements contained under Petro, we conclude that the court did not abuse its discretion in denying the motion for a new trial. The third assignment is overruled. Judgment affirmed. - 20 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, J., CONCURS; and KARPINSKI, J., CONCURS WITH SEPARATE CONCURRING OPINION ATTACHED. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67036 : STATE OF OHIO : : : Plaintiff-Appellee : : CONCURRING -vs- : : OPINION CLINTON DUNLAP : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 13, 1995 KARPINSKI, J., CONCURRING: I concur with the majority opinion. However, in the quotation cited from State v. Jenks (ante, at p. 14) the emphasis is misplaced in the underlined sentence. See my separate .