COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69224 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION ARLEN PARKS : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 13, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-275091 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Joseph V. Hoffer Assistant Prosecuting Attorney The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Gregory Scott Robey ROBEY & ROBEY 4825 Turney Road Cleveland, Ohio 44125 -2- NAHRA, J.: Defendant-appellant Arlen Parks appeals from the trial court order which denied his motion for a new trial. Appellant was originally convicted of felonious assault, R.C. 2903.11, with firearm and violence specifications, after a bench trial. Appellant appealed his conviction to this court, arguing in part that the trial court's verdict was against the manifest weight of the evidence. Therefore, in State v. Parks (July 5, 1996), Cuyahoga App. No. 68201, unreported, the evidence adduced at appellant's trial was extensively reviewed. A significant portion of that review follows: On the evening of November 23, 1991, John Henry Price (age 15), was shot by the defendant at 6403 Roland Avenue in Cleveland. Defendant lived at this address with his mother and two brothers. Price was best friends with defendant's younger brother, Robert. It is undisputed that defendant shot Price. Whether it was an accident or intentional was hotly disputed at trial. Price testified that the defendant and Harry Richards beat him up. He said that defendant then shot him in the head in the foyer of the home, and that defendant and Richards then dragged him into the bedroom. No blood stains were found on the foyer floor, however, Price had his hat on and a review of the photographs of the scene show he bled very little from his head wound. Price claimed defendant stole $500 from him, which Price had obtained from the sale of 20 cartons of cigarettes. There was evidence that Price may have been indebted to defendant for the sale of the stolen cigarettes. A .22 caliber sawed-off rifle was found in the bedroom next to the unconscious Price by the police and EMS personnel. Defendant was not at the scene when police arrived, but had gone to his girlfriend's house. Robert Parks, defendant's brother, and his girlfriend, were the only other people present at the time of the shooting. Robert and the girlfriend left the scene and went to the house -3- of a relative and acquaintance. They later returned to the scene of the shooting and informed the police that the victim had shot himself in an attempted suicide. The "suicide story" told to the police by the brother and the girlfriend made the investigating police officers suspicious. In the words of the sergeant on the scene: "It seemed like no one there was really telling the truth." The police searched the bedroom where Price was found unconscious by EMS personnel. One suspected bullet hole was found on the wall near the door to the room. No hole was found in the door to the room at the time of the investigation, although the door was thoroughly checked by both the sergeant and a detective. * * * At trial, the defendant and his friends and relatives testified that the victim was shot accidentally. According to them: the defendant and Price were "sicking" the family's pit bull dog on each other; Price went into the bedroom to get away from the dog and refused to come out; the defendant was trying to give Price his gun back when Price ran into the bedroom; the pit bull, seeing the gun, attacked defendant from his left side, apparently jumped over his right hand and gun and bit the defendant on the web of the back of the right hand (between the thumb and index finger) in which defendant held the gun; defendant then accidentally squeezed the trigger of the illegal sawed-off .22 caliber rifle; the trigger pull was estimated to be between 6 to 7 1/2 pounds; the bullet then went through the door from the living room at a height of 43" (3'7") and exited at 42 1/2" (3'6 1/2"), in a downward trajectory; and after passing through the door, the bullet struck the victim above the right eye. The victim was 5'6" tall. * * * . . . Defendant's friends and family admittedly lied to the police in the first instance saying the victim had attempted to commit suicide. The suicide story fell apart when the victim survived to deny it. The second story did not fare much better. * * * The pit-bull-made-me-do-it story was not supported by the physical evidence. . . . [The dog] bite would have required remarkable aerial maneuvers by the dog in defiance of gravity. Additionally, the record contained -4- no evidence of any wound on the defendant's hand when he turned himself in to the police, even though he claims there were scars present on his hand at trial. There were other discrepancies in the evidence. ... According to the investigating officers, the hole that appeared in the door at trial was not present when the room was searched on the night of the crime. The police opined that the hole was intentionally bored into the door by means other than a bullet. This act obviously occurred when the door had been remounted and rotated 180 degrees. Thus, when the door was rehung with a left-hand door knob, someone came to the house and bored a hole in the door giving it an upwards trajectory. If this door was rehung in the manner it was on the day that the shooting occurred (a right-hand door knob), the trajectory would be down from 43" as the bullet left the living room and entered the bedroom. * * * The court resolved the conflicts of evidence in a reasonable way. Price had testified that he was shot at three times in the face; was fully conscious after the shooting; and identified defendant as the one who had shot him; however, EMS personnel, the police officers on the scene, and the witnesses all testified that Price was unconscious after he was shot. The trial court's verdict shows that conflicts or confusion in Price's testimony were resolved based on consideration of "the passage of time or brain trauma or shock" resulting to the victim. * * * The trial court simply resolved inconsistencies in evidence by believing some of the testimony of the victim and relying on physical evidence to fill in the gaps. The trial court indicated that it felt that the incident did not occur as "recalled" by the victim, John Price. (Emphasis added.) Id., Slip Opinion at pgs. 2-4, 6-8. After thus carefully reviewing the record, this court rejected appellant's argument, stated the trial court's verdict was in -5- accord with the manifest weight of the evidence, and affirmed appellant's conviction. The record reflects that in December, 1994, Price contacted appellant's attorney. Shortly thereafter, Price gave deposition testimony stating that "the whole story" he had told at appellant's trial was "nothing but lies" which "[m]y father told me to say" because he "was trying to get monies (sic) from Victims of Crime." Price further stated he had recently approached appellant's family on the matter "because I wasn't getting no sleep knowing that I put somebody away that I shouldn't have." Price proceeded to testify that the accidental shooting caused by the dog biting appellant was the true story of the incident. On January 3, 1995, while his original appeal was pending in this court, appellant filed two motions in the trial court. One motion requested the trial court to find that appellant was "unavoidably prevented from the discovery of [new] evidence within 120 days of verdict." The other motion requested a new trial pursuant to Crim.R. 33(A)(6). Both motions were supported by a copy of Price's deposition testimony. The record reflects the trial court ordered a hearing and, shortly thereafter, granted appellant leave to file his motion for a new trial. The state was ordered to file a response. On June 2, 1995, the trial court held a hearing on appellant's motion for a new trial. Price testified at the hearing, essentially restating what he had stated during his deposition, viz., that appellant's trial version of the incident was what had actually occurred. -6- Following the hearing, the trial court denied appellant's motion for a new trial without opinion. In it from that order appellant has timely instituted the instant appeal. Appellant presents the following as his sole assignment of error: THE TRIAL COURT ERRED IN DENYING APPELLANT'S (SIC) FOR NEW TRIAL WHERE THERE IS NEW MATERIAL EVIDENCE WHICH COULD NOT HAVE BEEN DISCOVERED AND PRODUCED AT TRIAL, WITH REASONABLE DILLIGENCE (SIC), WHICH WOULD HAVE RESULTED IN A DIFFERENT VERDICT. Appellant argues he met all the requirements for a successful motion for a new trial pursuant to Crim.R. 33, therefore, the trial court lacked a basis upon which to deny his motion. This court disagrees. Crim.R. 33 states in relevant part: RULE 33. New trial (A) Grounds. A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights: * * * (6) When new evidence material to the defense is discovered, which the defendant could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given . . . . The prosecuting attorney may produce affidavits or other evidence to impeach the affidavits of such witnesses. (B) Motion for new trial; form, time. Application for a new trial shall be made by motion . . . . * * * -7- (E) Invalid grounds for new trial. No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court because of: * * * (3) The admission or rejection of any evidence offered against or for the defendant, unless the defendant was or may have been prejudiced thereby; * * * (5) Any other cause, unless it affirmatively appears from the record that the defendant was prejudiced thereby or was prevented from having a fair trial. (Emphasis added.) Under Crim.R. 33, motions for new trial are not to be granted lightly. Toledo v. Stuart (1983), 11 Ohio App.3d 292. Moreover, although appellant fails to acknowledge this rule of law in his brief to this court, it is well-settled that the denial of a motion for new trial on the grounds of newly discovered evidence is within the sound discretion of the trial court and may be reversed only where there has a been a "gross abuse" of that discretion. State v. Williams (1975), 43 Ohio St.2d 88 at 92-93; Toledo v. Stuart, supra. There are in essence three prerequisites for a successful Crim.R. 33(A)(6) motion for a new trial. See, e.g., State v. Shepard (1983), 13 Ohio App.3d 117. First, a new trial may be granted on the grounds of newly discovered evidence only if the defendant could not, with reasonable diligence, have discovered and produced the evidence at trial. Id. Second, the evidence must be truly new, not cumulative, and cannot be used merely to impeach or -8- contradict prior evidence. State v. Petro (1947), 148 Ohio St. 505; State v. Russell (Sept. 3, 1987), Cuyahoga App. No. 52493, unreported. Finally, the evidence must disclose a strong probability that it will change the result if a new trial is granted. State v. Petro, supra; State v. Lewis (1970), 22 Ohio St.2d 125. Although appellant asserts he has met all three prerequisites, the record renders his assertion unconvincing. At the hearing on appellant's motion, since Price's testimony was identical to appellant's trial version of the incident, it was merely cumulative to testimony given by other defense witnesses at appellant's trial. State v. Russell, supra. Moreover, the "new" evidence Price gave was used only to contradict his original testimony. State v. Petro, supra. A review of Price's "new" evidence, furthermore, demonstrates many discrepancies which rendered the evidence unsatisfactory. These discrepancies were such that the trial court could place "greater credibility upon [Price's] trial testimony than upon his subsequent recantation," and, thus not result in a different verdict. State v. Pirman (1994), 94 Ohio App.3d 203 at 209. First, Price stated that at the time the gun discharged through the door, he was "sitting or standing, sitting or whatever." Second, Price had no explanation for the original investigators' observation that the bedroom door did not have a hole in it. Third, Price stated he remembered the gun as a weapon -9- which was "easy" to fire. Price's recall was thus "incomplete" at best. State v. Mathis (1984), 16 Ohio App.3d 13. Furthermore, when testifying at the hearing on appellant's motion, Price made statements which contradicted his deposition testimony. For example, at the hearing, he stated his mother filed for Victims of Crime compensation, rather than his father. Finally, Price made the following admissions when testifying at the hearing: 1) appellant's family lived across the street from him and had been providing him with food; 2) appellant's mother had driven him to the deposition; 3) he was angry at his parents for "taking" his disability money; and 4) he told the prosecutor in a telephone conversation appellant and his family had "coerced" him to say the incident was an accident. Under these circumstances, the trial court was well within its discretion to find Price's recantation less than credible. State v. Tijerina (1994), 94 Ohio App.3d 7; State v. Pirman, supra. A review of the record thus reveals that although the trial court could have determined appellant's new evidence met the first prerequisite for a successful Crim.R. 33 motion, it failed to meet the other two since it was merely cumulative and would not result in a different verdict. State v. Petro, supra; State v. Tijerina, supra; State v. Russell, supra. See, also, State v. Walker (1995), 101 Ohio App.3d 433. Therefore, the trial court did not err or abuse its discretion in denying appellant's motion for a new trial on the grounds of -10- newly discovered evidence. Appellant's sole assignment of error is accordingly overruled. The order of the trial court is affirmed. -11- 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. BLACKMON, P.J., and DYKE, J., CONCUR. JOSEPH J. 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 .