State v. Grad , 2022 Ohio 4221 ( 2022 )

[Cite as State v. Grad, 2022-Ohio-4221.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 22CA0011-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
KENNETH A. GRAD COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 08CR0272
DECISION AND JOURNAL ENTRY
Dated: November 28, 2022
CALLAHAN, Judge.
{¶1} Appellant, Kenneth Grad, appeals a judgment of the Medina County Court of
Common Pleas that denied his motion for leave to file an untimely motion for a new trial. This
Court affirms.
I.
{¶2} In 2014, a jury found Mr. Grad guilty of multiple charges of endangering children
and felonious assault in connection with injuries sustained by his newborn son in 2008. On January
29, 2015, the trial court sentenced Mr. Grad to twenty-four years in prison. This Court affirmed
his convictions. State v. Grad, 9th Dist. Medina No. 15CA0014-M, 2016-Ohio-8388. In so doing,
this Court concluded that trial counsel’s decision not to call expert witnesses that had been
previously identified did not constitute ineffective assistance of counsel. See Grad at ¶ 5-9. Mr.
Grad also petitioned the trial court for postconviction relief, raising arguments similar to those
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raised on direct appeal. This Court affirmed the trial court’s decision to dismiss his petition. State
v. Grad, 9th Dist. Medina No. 17CA0004-M, 2017-Ohio-8778, ¶ 3-4.
{¶3} On October 22, 2021, Mr. Grad filed a motion for leave to file an untimely motion
for a new trial pursuant to Crim.R. 33(B). In support of his motion for leave, Mr. Grad argued that
he was unavoidably prevented from discovering new evidence within 120 days of the verdict that
consisted of scientific studies, an investigative report, and a subsequent medical diagnosis of a
family member. Mr. Grad also argued that there had been “[a] significant and precipitous drop in
the cost of whole genome sequencing[,]” which the State had not pursued in connection with his
trial. The trial court denied the motion without a hearing, concluding that the documents submitted
with Mr. Grad’s motion for leave did not demonstrate that he was unavoidably prevented from
discovering the evidence. In the alternative, the trial court concluded that Mr. Grad did not file his
motion for leave within a reasonable time.
{¶4} Mr. Grad filed this appeal.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN FAILING TO HOLD A HEARING ON OR
GRANTING APPELLANT’S MOTION FOR LEAVE TO FILE A MOTION FOR
A NEW TRIAL.
{¶5} In his sole assignment of error, Mr. Grad argues that the trial court erred by denying
his motion for leave to file an untimely motion for a new trial without a hearing. This Court does
not agree.
{¶6} Crim.R. 33(A)(6) permits a defendant to move for a new trial “[w]hen new evidence
material to the defense is discovered which the defendant could not with reasonable diligence have
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discovered and produced at trial.” A motion for a new trial that alleges newly discovered evidence
must be filed within 120 days of the verdict. Crim.R. 33(B). Crim.R. 33(B), however,
excuses a defendant’s failure to move for a new trial within the 14- or 120-day
deadline, as applicable, if the defendant proves by clear and convincing evidence
that he or she was unavoidably prevented from discovering the evidence on which
the motion would be based within that time. When the defendant makes that
showing, the motion for a new trial must be filed within seven days of the trial
court’s order finding that the defendant was unavoidably prevented from
discovering the evidence within the time prescribed by Crim.R. 33(B).
State v. McNeal, Slip Opinion No. 2022-Ohio-2703, ¶ 16.
{¶7} This Court has explained that “a two step process is anticipated when [a motion for
a new trial] is made outside the period during which motions for a new trial are permitted as a
matter of course[]” and has recognized that “[t]here will be an initial step that results in the issuance
of an order from the court that there was an unavoidable delay.” State v. Georgekopoulos, 9th
Dist. Summit No. 21952, 2004-Ohio-5197, ¶ 7, quoting State v. Dawson, 9th Dist. Summit No.
19179, 1999 WL 492600, *2 (July 14, 1999). Consequently, a defendant who wants to file a
motion premised on newly discovered evidence outside the 120-day timeframe provided by rule
“must first obtain leave by filing a motion demonstrating that * * * he was ‘unavoidably prevented
from discovery of the evidence upon which he must rely.’” State v. Baskerville, 9th Dist. Summit
No. 29327, 2019-Ohio-3639, ¶ 7, quoting Crim.R. 33(B). When the evidence submitted in support
of a motion for leave does not, on its face, support the claim that the defendant was unavoidably
prevented from timely discovering the evidence, the motion may be denied without a hearing.
State v. Yuschak, 9th Dist. Medina No. 18CA0106-M, 2019-Ohio-4394, ¶ 11.
{¶8} This Court reviews a trial court’s decision to deny leave to file an untimely motion
for a new trial without a hearing for an abuse of discretion. Id. at ¶ 9. An abuse of discretion is
present when a trial court’s decision “‘is contrary to law, unreasonable, not supported by evidence,
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or grossly unsound.’” Menke v. Menke, 9th Dist. Summit No. 27330, 2015-Ohio-2507, ¶ 8, quoting
Tretola v. Tretola, 3d Dist. Logan No. 8-14-24, 2015-Ohio-1999, ¶ 25.
{¶9} Mr. Grad’s purported newly discovered evidence included scientific articles
published in 2016, 2017, 2019, and 2021. Experts identified by the defense before trial—but not
called to testify—are among the authors of each of those studies. The articles posit that guidelines
promulgated by the American Academy of Pediatrics for the diagnosis of nonaccidental trauma
are inadequate, that radiological studies are insufficient for diagnosis, that genetic disorders and/or
congenital defects have been misdiagnosed as child abuse, and that fetal fractures can occur in
pediatric patients who have tested negative for osteogenesis imperfecta. On the basis of these
articles, Mr. Grad also identified lower-cost DNA testing, which is now available, as newly
discovered evidence. Mr. Grad also suggested that the subsequent diagnosis of the victim’s sibling
with vitamin D deficiency, hypermobility, and Ehlers Danlos Syndrome is newly-discovered
evidence, and he directed the trial court’s attention to two investigative reports in the media that
were critical of the State’s expert and his methodology for diagnosing nonaccidental trauma.
{¶10} The trial court denied Mr. Grad’s motion without a hearing, noting that two of the
experts who authored the studies had been identified by him but not called as witnesses and that
their medical opinions regarding the case had not changed. The trial court observed that although
the jury did not hear the experts’ opinions through their own testimony, their opinions were the
foundation of the cross-examination of the State’s expert. On this basis, the trial court concluded
that, on its face, Mr. Grad’s proposed evidence consisted of scientific theories that were not only
known to him but utilized by the defense during the course of the trial.
{¶11} As this Court has previously noted, the defense did not call expert witnesses at trial.
Grad, 2016-Ohio-8388, at ¶ 8-9. The State’s expert was, however, thoroughly cross-examined
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based on the theories that those experts espoused. Although the scientific studies that Mr. Grad
characterizes as newly discovered evidence had not been published at the time of trial, those studies
are premised on the same theories upon which the State’s expert was cross-examined. Compare
State v. Chambers, 4th Dist. Adams No. 20CA1125, 2021-Ohio-3388, ¶ 21; State v. Stein, 5th Dist.
Richland No. 13CA51, 2014-Ohio-222, ¶ 27-33 (each rejecting the merits of the appellants’ claims
that developments in preexisting scientific theories constituted newly discovered evidence when
the genesis of those theories existed at the time of trial). In a cross-examination informed by those
theories, defense counsel also asked the State’s expert about the necessity and desirability of
further genetic testing, research that purported to undermine his own conclusions, and the existence
of other medical conditions within Mr. Grad’s family that, according to the defense, weakened the
State’s theory of the case.
{¶12} Given the nature of the purported newly discovered evidence and the fact that the
theories underlying it formed the basis for the cross-examination of the State’s expert at trial, this
Court cannot conclude that the trial court abused its discretion by concluding that the evidence
submitted in support of Mr. Grad’s motion for leave did not, on its face, support the claim that he
was unavoidably prevented from timely discovering it. See Yuschak, 2019-Ohio-4394, at ¶ 11.
Accordingly, the trial court did not err by denying Mr. Grad’s motion for leave.
{¶13} Mr. Grad’s assignment of error is overruled.
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III.
{¶14} Mr. Grad’s assignment of error is overruled. The judgment of the Medina County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
TEODOSIO, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
RICK L. FERRARA, Attorney at Law, for Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.