The opinion
Colleen Conway Cooney, Judge,
dissenting.
On this appeal from the trial court’s decision to grant appellee’s motion for a new trial, I respectfully dissent from the decision of the majority.
The Ohio Supreme Court has held that “[t]he allowance of a motion for a new trial on the grounds of newly discovered evidence is within the competence and discretion of the trial judge; and in the absence of a clear showing of abuse such decision will not be disturbed.”
State v. Hill
(1992), 64 Ohio St.3d 313, 333 , 595 N.E.2d 884, 900 , citing
State v. Williams
(1975), 43 Ohio St.2d 88 , 330 N.E.2d 891 ,
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paragraph two of the syllabus; see, also,
State v. Lopa
(1917), 96 Ohio St. 410 , 411, 117 N.E. 319 ;
State v. Larkin
(1996), 111 Ohio App.3d 516 , 676 N.E.2d 906 ;
Euclid Beach Ltd. v. Brockett
(Dec. 9,1999), Cuyahoga App. No. 75047, unreported, 1999 WL 1129086 (applying a standard of
gross
abuse of discretion).
It is well established that “[t]he term “abuse of discretion” connotes
more than an error of law or of judgment;
it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” (Emphasis added.)
State v. Adams
(1980), 62 Ohio St.2d 151, 157 , 16 O.O.3d 169, 172-173 , 404 N.E.2d 144 , 149 citing
Steiner v. Custer
(1940), 137 Ohio St. 448 , 19 O.O. 148 , 31 N.E.2d 855 ;
Conner v. Conner
(1959), 170 Ohio St. 85 , 9 O.O.2d 480 , 162 N.E.2d 852 ;
Chester Twp. v. Geauga Cty. Budget Comm.
(1976), 48 Ohio St.2d 372 , 2 O.O.3d 484 , 358 N.E.2d 610 ; see, also,
State v. Montgomery
(1991), 61 Ohio St.3d 410, 413 , 575 N.E.2d 167, 170-171 ;
State v. Lowe
(1994), 69 Ohio St.3d 527, 532 , 634 N.E.2d 616, 620 . This court has stated that “[a]buse of discretion is found in the rare instance when a decision is grossly violative of fact and logic so as to demonstrate perversity of will, defiance of judgment, undue passion or extreme bias.”
State v. Wynn
(1998), 131 Ohio App.3d 725 , 723 N.E.2d 627 , citing,
State v. Jenkins
(1984), 15 Ohio St.3d 164, 222 , 15 OBR 311, 360-361, 473 N.E.2d 264, 313-314 ;
State v. Lombardo
(Feb. 15, 1995), Summit App. No. 16368, unreported., 1995 WL 66354
Whether the trial court has abused its discretion in granting a new trial
must be disclosed from the entire record. State v. Petro
(1947), 148 Ohio St. 505 , 36 O.O. 165 , 76 N.E.2d 370 , citing
Lopa,
96 Ohio St. 410 , 117 N.E. 319 . An appellate court should not substitute its judgment for that of the trial court when there exists competent and credible evidence supporting the findings of fact and conclusions of law rendered by the trial court judge.
State v. Schiebel
(1990), 55 Ohio St.3d 71, 74 , 564 N.E.2d 54, 60-61 .
While it is true that the trial court only specifically addressed some of the six criteria set forth in
Petro ,
such failure may amount to an error, but, in my view, it does not rise to the level of abuse of discretion. The question is whether a review of the entire record supports the trial court’s decision to grant the new trial. Thus, because the record reveals that the new evidence meets the
Petro
requirements, the trial court did not abuse its discretion.
As the majority states, the state based its case on the issue of identification. The trial court stated in its decision granting a new trial that the new DNA evidence raises an issue of credibility regarding the identifications given by the eyewitnesses. The trial court further stated that at the new trial, “the jury is faced with the question of whether scientific DNA testimony is so persuasive that it overrides these eyewitnesses.” The trial court’s statement suggests that if the jury believes that the DNA testing is more reliable than the testimony given by
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the eyewitnesses, a strong probability exists that the result of this trial would be different. Thus, the first prong of
Petro
has been met.
Further, the record shows that the trial judge gave the motion for a new trial careful and honest consideration. The trial court held two hearings on this matter, one on appellee’s motion for leave to file a motion for new trial and another on appellee’s motion for a new trial. The evidentiary hearing on the motion for a new trial lasted nearly six hours. During that time, evidence was submitted by expert testimony, and the trial judge questioned these witnesses in areas where clarification was necessary. Therefore, it cannot be said that the trial court acted unreasonably, arbitrarily, or unconscionably in making its decision.
In addition, the trial judge had conducted the original trial, so he was “exceptionally qualified” in making the determination to grant the motion for new trial.
See
Williams, 43 Ohio St.2d at 93 , 72 O.O.2d at 51-52 , 330 N.E.2d at 894-895 , citing
United States v. Johnson
(1946), 327 U.S. 106, 112 , 66 S.Ct. 464, 466-467 , 90 L.Ed. 562, 566 . Deference is shown to the trial court in such matters because of the familiarity of the trial court with the details of the case as a result of having presided over the actual trial.
See Larkin,
111 Ohio App.3d at 523 , 676 N.E.2d at 911 . Here, the trial judge who granted appellee’s motion for a new trial was the same judge who heard the evidence in the initial trial.
Notwithstanding the fact that the record as a whole supports the trial court’s decision to grant a new trial, the majority argues that the trial court should have required appellee to present evidence as to the source of the sperm that was found on the first victim and on her clothing hours after the attack, and should have determined whether the victim had consensual intercourse within forty-eight hours of the rape. It is uncontradicted that at the hearing on the motion for leave to file the motion for new trial, the trial court stated that the
parties
would be required to produce the evidence described above.
Essentially, the majority is placing the burden solely on the appellee to produce evidence outside his counsel’s capability. It is important to note that the first victim is no longer alive; therefore, there is no way for the appellee to obtain information about any consensual sexual partners she may have had at the time of the attack.
Furthermore, it was not the appellee’s burden at trial, nor is it now his burden, to prove his innocence. Instead, as with all criminal trials, it was the prosecutor’s burden to prove appellee’s guilt beyond a reasonable doubt.
Two theories of the source of the sperm have been set forth. First, as argued by the state at trial, the sperm belonged to the rapist. The majority argues that although DNA testing was unavailable, that the appellee should have used the
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secretion blood-type test to “potentially rule himself out as a suspect.” The majority also implies that the appellee did not do so for strategic reasons. However, it was not the burden of the appellee to prove his innocence at trial; it was the state’s burden to prove his guilt. Thus, if this test existed, the state could have used the secretion blood-type test which would have helped in determining the source of the sperm. However, the state also made a strategic choice not to test the sperm that was found on the rape victim within two hours of her attack.
The second theory presented by the majority is that the sperm in question did not belong to the rapist at all but that its source was a possible consensual partner of the first victim. As noted by the majority, the purpose of a rape kit is to gather physical evideñee. R.C. 2907.29. The sperm sample in question came from the prosecutor’s evidence. Thus, as part of its investigation it was the role of the medical personnel or law enforcement officers to question the victim as to her other sexual partners as a means of identifying the source of the sperm. If the state had asked such routine questions of the victim, the prosecution would have been able to make a strong argument as to the source of the sperm. By contrast, it was not the appellee’s role at trial to interrogate the victim as to her sexual habits. See R.C. 2907.02(D); Evid. R. 404(A)(2).
Thus, because the new evidence presented meets the requirements for granting a motion for a new trial as set forth in
Petro ,
I would find no abuse of discretion in the trial court’s decision to grant appellee’s motion for a new trial.