COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67311 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION CHRISTOPHER YANIK : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 30, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-301722 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. MICHAEL RATAJCZAK, ESQ. CUYAHOGA COUNTY PROSECUTOR 133 North Court Street BY: JOSEPH HOFFER, ESQ. Medina, Ohio 44256 ASSISTANT COUNTY PROSECUTOR The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant-Appellant, Christopher Yanik appeals his conviction for three counts of Gross Sexual Imposition. (R.C. 2907.05). In three assignments of error, appellant claims that the State failed to prove that the victim was under thirteen at the time of sexual contact; that the victims' recantation of pre-trial statements and trial testimony constitutes new evidence warranting a new trial and that the court committed prejudicial error by denying his motion for a new trial without conducting a hearing. Upon review, we find appellant's assignments of error to be without merit. The judgment of the trial court is affirmed. Appellant's bench trial commenced on November 29, 1993. The victim, Christina Rini, testified that the appellant was her mother's boyfriend; that he touched her breasts and vagina on February 20, 27, and March 6, 1993 and that these incidents took place prior to her thirteenth birthday which was to occur on April 7, 1993. Christina testified that she remembered that the appellant molested her on February 20, 1993 because she was ill and had to stay home from a Valentine's Day dance. Christina stated that on September 12, 1993, she told her Aunt Lisa of the abuse; that her aunt told her mother who became angry and upset with appellant and that her mother accompanied her to the police station on that date. Christina further stated that she made an audiotaped statement to Officer Hall indicating that she was twelve years old when the molestations occurred. Christina - 3 - testified that on the following day to wit, Sunday, September 13, 1993, her mother provided her with a calendar and she identified three dates of sexual contact which were communicated to the police. Officer Bencalowycz testified that on September 12, 1993, he was dispatched to appellant's home after appellant contacted the police indicating that he was contemplating suicide. Bencalowycz stated that within moments of his arrival, the appellant told him that he was overcome with guilt and also told him that he had sexually molested Christina Rini when she was 12 years old. Bencalowycz stated that he accompanied the appellant to the station where the appellant made a videotaped confession to two incidents of sexual molestation. On cross-examination, Bencalowycz admitted that the appellant did not specify any particular dates. However, on re- direct examination, he reiterated the fact that the appellant told him that Christina was 12 years old at the time of sexual contact. Officer Hall testified that after Officer Bencalowycz related appellant's confession, he proceeded to the Rini home and accompanied Christina and her mother Helen, to the station where Christina made an audiotaped statement. Hall testified that Helen Rini sobbed uncontrollably and that she had to be escorted away from the conference room to prevent her from disrupting the interview. On cross-examination, Hall admitted that Christina did not relate specific dates. However, on re-direct examination, he stated that Christina told him that the molestation occurred before - 4 - her 13th birthday because she remembered that the weather was still cold at that time. Hall stated that he knew Christina's birth date was April 7, 1980, because he questioned her about her age prior to commencing the interview. The State rested and the trial court overruled appellant's Crim.R. 12 motion for acquittal. Christina's mother testified on behalf of the appellant. Helen Rini stated that on September 12, 1993, she had a conversation with her sister Lisa; that as a result of this conversation, she confronted the appellant; that the appellant admitted to touching Christina but told her "its not what you are thinking, Helen." (Tr. 150) She further stated that she accompanied the appellant to his house on that date; that she saw him dial 911 and assumed that he had confessed to the police because they were at her house a half hour later. Helen Rini corroborated her daughter's testimony with respect to identifying and reporting the dates to the police and also stated that Christina told her that the molestations took place before her 13th birthday. Helen denied that the appellant was present in her home on the evenings of February 17, 1993 and March 6, 1993 and stated that one incident that had been described as happening under a blanket in the dining room took place in late April, after Christina's 13th birthday. The appellant testified that Helen Rini confronted him on September 12, 1993 and that he made a confession to the police on that date. Contrary to Officer Bencalowycz's testimony, appellant - 5 - stated that the molestations occurred in late April and May, after Christina's 13th birthday. The appellant admitted that he did not realize Christina's age was significant until he participated in his first pre-trial conference on October 25, 1993. The judge found the appellant guilty as charged; sentenced him to one year on each of three counts to run consecutively; suspended sentencing with respect to the third count and placed him on five years probation denying his motion for shock probation. On February 3, 1994, appellant filed a motion to suspend further execution of sentence. On February 8, 1994, he filed a motion for a new trial based upon recantation which was denied without a hearing on February 22, 1994. The instant appeal followed. I THE STATE MUST SHOW THAT THE VICTIM IN A PROSECUTION BROUGHT PURSUANT TO OHIO REVISED CODE SECTION 2907.05 WAS UNDER THIRTEEN YEARS OF AGE WHEN THE INDICTMENTS CHARGE THAT THE DEFENDANT HAD SEXUAL CONTACT WITH A PERSON NOT HIS SPOUSE WHO WAS UNDER THIRTEEN YEARS OF AGE. II A VICTIM'S RECANTATION OF PRE-TRIAL STATEMENTS AND TRIAL TESTIMONY CONSTITUTES NEW EVIDENCE. Appellant's first two assignments of error raise similar issues of fact and law. Hence, they shall be addressed together. In his first two assignments of error, appellant claims that as a result of Christina Rini's recantation, the state failed to prove that she was under 13 and that such recantation constitutes new evidence warranting a new trial. Appellant's arguments are unpersuasive. - 6 - In Toledo v. Easterling (1985), Ohio App.3d 59, the court set forth a six-part test to determine whether "newly discovered" evidence warrants a new trial. Such test states: 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." A review of the instant affidavit indicates that Christina did not deny that molestations occurred February 20, 27 and March 6, 1993. Rather, she indicates that she is merely uncertain about the dates of sexual contact. For example, paragraph 11 of her affidavit states: ...[W]hen I told the detective theses three dates on September 13, 1993, I did not know then for certain that these were the dates that Christopher Yanik had molested me. However, I told the detective these dates because I felt pressured to identify some dates and I picked these three dates even though I did not know the dates that Christopher Yanik had touched me. A review of the entire affidavit indicates that it fails to fulfill the third and fulfills the sixth criteria of Easterling. - 7 - Accordingly, we find that any uncertainty on the part of the victim with respect to dates could easily have been discovered before trial. We further find that Christina's averments neither impeach nor contradict her former testimony. They merely assert uncertainty. Consequently, her affidavit does not constitute recantation. It is well settled that: In determining whether to grant a new trial on the basis of recanted testimony, the trial court must make two findings: (1) which of the contradictory testimonies of the recanting witness is true and if the recantation is believable; (2) would the recanted testimony have materially affected the outcome of the trial. Easterling, Paragraph 3 of the syllabus. We find there is ample evidence in the record to find Christina's affidavit to be suspect. Appellant's argument that Christina's testimony was the only evidence that the crimes took place is unpersuasive. Such argument ignores the credibility of Christina's pre-trial and trial statements, Helen Rini's initial anguish and timely written statement with respect to these dates and appellant's spontaneous confession to molesting Christina when she was 12 years old. (See, Officer Bencalowycz's Affidavit, State's Motion to Dismiss Appellant's Motion for New Trial.) Additionally, the appellant testified that the first incident of molestation occurred while he was under a "blanket" watching television with Christina and Helen. (Tr. 195) Appellant's reference to a blanket is consistent with a molestation which took - 8 - place in February, 1993 as initially indicated by the victim rather than in the warmer months of April or May as indicated by her estranged mother and the appellant. Moreover, Christina told Officer Bencalowycz that she specifically remembered that the initial molestation occurred on February 20, 1993 because she was ill and had to stay home from a Valentine's day dance. In light of the foregoing, it was neither arbitrary, capricious nor unconscionable for the judge to deny appellant's motion for a new trial as the victim's affidavit was unbelievable and presented no new evidence. Appellant's first and second assignments of error are overruled. III WHETHER DEFENDANT-APPELLANT WAS PREJUDICED WHEN THE TRIAL COURT DENIED HIS MOTION FOR A NEW TRIAL WITHOUT FIRST HOLDING AN ORAL HEARING. Because the appellant failed to adduce new evidence, it was neither arbitrary nor unconscionable for the trial judge to deny appellant's motion without a hearing. See, State v. DeHass (1967) 10 Ohio St.2d 230 and Easterling. Appellant's third assignment of error is overruled. The judgment of the trial court is affirmed. - 9 - 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 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. PATTON, C.J., AND BLACKMON, J., CONCUR. ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .