COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67574 STATE OF OHIO : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MICHAEL GRAY, SR. : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 13, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-250231. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Sherry F. McCreary, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant:: Michael Gray, Sr., pro se Serial No. 221-107 Trumbull Correctional Facility P.O. Box 901 Leavittsburg, OH 44430 -2- PER CURIAM: This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25 of the Eighth District Court of Appeals. Defendant-appellant, Michael Gray, Sr., appeals the Cuyahoga County Common Pleas Court's denial of his motion for a new trial without according him an evidentiary hearing. On April 3, 1990, appellant was indicted on one count of felonious assault with a violence and aggravated felony specification against his former girlfriend, Anna McKissic. Appellant entered a plea of not guilty. On June 18, 1990, a bench trial commenced. The state presented the testimony of several individuals who were at or near the scene of the crime. Florence Dawson, who knew appellant for several years, heard an argument outside her door between the victim and appellant shortly before the actual assault. Marlene Dixon, who passed appellant in the hallway as he was walking away, testified that appellant told her to "see if the bitch is dead." Ms. Dixon then saw the victim lying of the floor in a pool of blood. As the victim was helped into the ambulance, she told Patrol Officer Willie Williams that appellant had beat her. The evidence further established that appellant later called Renee Key, the woman who called for the ambulance, to see if the victim was seriously injured. Also, approximately one month later, Patrol Officer Marvin Bittenger stopped the vehicle appellant was driving based upon an unrelated domestic violence complaint. Upon learning appellant had a warrant out for his arrest concerning the -3- assault against Ms. McKissic, Officer Bittenger arrested appellant. Appellant said he did not know of any arrest warrant but that he did, in fact, have a "minor" altercation with his ex-girlfriend. Finally, the victim testified not only that it was appellant who violently assaulted her, but also that appellant asked her to drop the charges. Appellant was found guilty as charged. This court affirmed appellant's conviction in State v. Gray (April 9, 1992), Cuyahoga App. No. 60188, unreported. On April 15, 1994, appellant filed a motion for new trial pursuant to Crim.R. 33. Attached was an affidavit by Ms. McKissic completely recanting her prior testimony. On June 14, 1994, the trial court denied the motion without an evidentiary hearing. Appellant timely filed this appeal. THE TRIAL COURT ABUSED IT'S (SIC) DISCRETION BY NOT AFFORDING THE DEFENDANT MINIMAL NOTICE AND HEARING REQUIREMENTS ON THE MOTION FOR NEW TRIAL, DENYING DEFENDANT DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. The motion giving rise to appellant's appeal is based on Crim.R. 33(B), which provides in pertinent part: Motions for new trial on account of newly discovered evidence shall be filed within one hundred twenty days after the day upon which the verdict was rendered ***. If it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely, such motion shall be filed within seven days from an order of the court finding that he was unavoidably prevented from discovering the evidence within [a] one hundred twenty day period. -4- As a general rule, a motion for a new trial is granted where the defendant shows that he was unavoidably prevented from discovering the evidence which is the basis of the motion during the course of the trial. State v. Pinkerman (1993), 88 Ohio App.3d 158. The evidence must be material in that, had it been available at trial, there is a strong possibility that the trial would have produced a different result. State v. King (1989), 63 Ohio App.3d 183. In this context, the Ohio Supreme Court has held: 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 possibility that it will change the result if a new trial is granted, (2) has been discovered since trial, (3) is such as could not in the exercise of due diligence have been discovered before 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), 148 Ohio St. 505, syllabus. It is axiomatic that a trial court's determination whether to grant a new trial will not be reversed on appeal absent an abuse of discretion. State v. Shiebel (1990), 55 Ohio St.3d 71, syllabus. Contrary to appellant's assertions, a trial court's decision on whether the motion for a new trial warrants an evidentiary hearing will not be disturbed absent a clear showing the court abused its discretion. See Toledo v. Stuart (1983), 11 Ohio App.3d 292. This implies the court's attitude was -5- unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. In the present case, appellant maintains the affidavit of the victim recanting her testimony warrants a new trial or at least an evidentiary hearing on the matter. Appellant relies upon State v. Wright (1990), 67 Ohio App.3d, for the proposition that when newly acquired evidence which, if believed, establishes the innocence of the defendant and is presented in a post-conviction motion for a new trial, the trial court must afford the movant the opportunity to present evidence at a hearing before ruling on such motion. While we agree with the Second District Appellate Court's application of the law to the particular circumstances in that case, we believe the recantation by an important witness of his or her testimony neither automatically, or as a matter of law, entitles the defendant to a new trial nor an evidentiary hearing on a motion for a new trial. See Stuart, supra; State v. Curnutt (1948), 84 Ohio App. 101. Given the particular facts in this case, we find the recantation of the witness, even if taken as true, when compared to the overwhelming body of evidence establishing appellant's guilt, would not create a strong probability of a different result at trial. See, Dayton v. Martin (1987), 43 Ohio App.3d 87. As such, the trial court did not abuse its discretion in denying appellant's post-conviction motion for a new trial without affording appellant a hearing. -6- Affirmed. -7- 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. PATRICIA BLACKMON, PRESIDING JUDGE DAVID T. MATIA, JUDGE JOSEPH NAHRA, 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. .