State v. Quinn

[Cite as State v. Quinn, 2016-Ohio-140.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
: Appellate Case No. 2014-CA-95
Plaintiff-Appellee :
: Trial Court Case No. 13-CR-869
v. :
: (Criminal Appeal from
JAMES QUINN : Common Pleas Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 15th day of January, 2016.
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RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Clark County Prosecutor’s Office, 50 East
Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 West Second Street, Suite 400,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
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FAIN, J.
{¶ 1} Defendant-appellant James Quinn appeals from an order of the Clark
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County Common Pleas Court overruling his motion for a new trial based on newly
discovered evidence. The State argues that the evidence is not newly discovered and
is solely designed to impeach the credibility of the victim’s trial testimony. We conclude
that the trial court did not err by overruling the motion without conducting a hearing,
because the record supports the trial court’s conclusion that the victim’s testimony at trial
was more credible than her recantation, and even if the new evidence was presented to
the jury there is not a strong probability that the outcome would be different. Therefore,
the order overruling the motion for a new trial is Affirmed.
I. The Assault on Quinn’s Mother
{¶ 2} The victim, Beverly Quinn, is a 79-year-old woman, the mother of two
daughters and two sons, including the defendant, James Quinn. In December 2013,
Quinn’s girlfriend, Samantha Ferrell, was living with Quinn’s mother, Beverly, in her two-
bedroom house. At that time, Quinn was under indictment for a domestic violence incident
involving his mother; as a condition of bond he was subject to a no-contact order with his
mother. Late in the evening, Beverly was awakened by noise, and found Quinn and
Ferrell in her home, drinking vodka and watching television. Beverly told Quinn he was
not allowed to be there and asked Quinn to leave, to turn off the television, and for
Samantha to go to her room. Quinn became very angry with his mother, pushed her into
a chair, and hit her. When Quinn suggested to Samantha that they take his mother to
“mental health,” Samantha suggested that they take Beverly out into the country and
dump her. Beverly then ran to her own bedroom, locked the door, and left the house by
crawling out of the bedroom window. Beverly went to a neighbor’s house and called the
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police. During the 911 call, Quinn identifies her son, James Quinn, as the person who
has abused her, and states that Quinn left her house driving a white station wagon.
Quinn and Samantha left Beverly’s house before the police arrived. The police took
photos of Beverly’s bruises, and allowed her to return to her own home after they verified
it was empty and secured. One of the two officers who spoke with Beverly at this time
testified that Beverly was very articulate and said it was her son who had struck her in the
face. No charges were filed against Quinn at this time.
{¶ 3} According to Beverly’s testimony at trial, several hours later Quinn returned
to his mother’s home, without Samantha, forced entrance into his mother’s bedroom, and
forced his mother to leave the house with him, threatening to take her to the country and
make her jump off a bridge. Beverly described her son as very angry and intoxicated on
alcohol and drugs. Beverly left with her son because she felt she had no choice. He
drove out into the country, stopped at a bridge and said, “if you don’t jump, I’ll push you.”
According to Beverly, Quinn decided he could not do it, and told her that he wouldn’t do
anything to her as long as she did not testify against him. Beverly testified at trial that
Quinn then drove to Walmart, hitting her in the head numerous times as he was driving.
After he left the car, Beverly got out of the car and approached a Walmart employee for
help. She told the employee that her son had hurt her and was trying to kill her. The
Walmart employee verified this course of events and testified that Beverly was scared,
but she knew who she was, where she was, and was not disoriented or confused. The
Walmart employee testified that as Beverly was talking to him, a man came up to both of
them, grabbed Beverly’s arm and complained that she was trying to hurt him. The
employee insisted that he let go and leave her alone. A surveillance video of the Walmart
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parking lot corroborates this testimony, but is taken from too far a distance to identify the
man’s facial features. The surveillance video shows that Beverly approached the
employee, a man approached them, and then the unidentified man left in a white station
wagon. The employee could not identify Quinn as the person he saw and talked with in
the parking lot. Beverly testified at trial that Quinn was driving her car, which she
described as a tan sedan, not a white station wagon. No witness identified Quinn as the
man depicted in the video in the Walmart parking lot.
{¶ 4} The detective who interviewed Beverly at Walmart testified that Beverly
identified her son, James Quinn, as the person who attacked her in her home, who forced
her into a car, threatened to harm her, and hit her face, causing visible injuries. The
detective also testified that during his interview on the scene, Beverly was very emotional,
but lucid and articulate about the events of the evening. Based on this interview, the
detective obtained a search warrant. A search of Beverly’s home revealed evidence that
her bedroom door had been damaged as the result of being forced open.
{¶ 5} Beverly was transported to the hospital by ambulance and treated in the
Emergency Room at Springfield Regional Medical Center. The paramedic who
transported Beverly testified that she was alert and oriented. The ER Nurse testified that
Beverly was oriented, and did not appear to suffer from dementia or any other mental
defect. The ER Nurse testified that Beverly identified her son as the person who had hit
and injured her.
{¶ 6} At trial, evidence of Quinn’s two prior convictions for Domestic Violence was
admitted through court records. Beverly acknowledged that she was the victim of one of
the prior Domestic Violence convictions.
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II. The Course of Proceedings
{¶ 7} In November 2013, Quinn was indicted on one count of Domestic Violence,
a felony of the third degree, in violation of R.C. 2919.25(A). In December 2013, Quinn
was indicted on two counts of Domestic Violence, felonies of the third degree, in violation
of R.C. 2919.25(A); two counts of Kidnapping, felonies of the first degree, in violation of
R.C 2905.01(B)(1); one count of Abduction, a felony of the third degree, in violation of
R.C. 2905.02(A)(2); and one count of Intimidation, a felony of the third degree, in violation
of R.C. 2921.04(B)(1). The trial court ordered that the two indictments be consolidated
and tried together. On the day of trial, the State moved to dismiss the charge in the first
indictment, and the dismissal entry was filed the day after the sentencing hearing on the
convictions from the second indictment. A jury found Quinn guilty on all counts in the
second indictment. One day after the jury verdict, the trial court conducted a sentencing
hearing.
{¶ 8} At the sentencing hearing, the trial court merged the two Kidnapping charges
and the Abduction charge for purposes of sentencing. The State elected to proceed on
count three, a charge of Kidnapping. The court denied the defense request to merge
Kidnapping with the Intimidation conviction, rejecting the argument that both were
committed by the same conduct. The defendant made a statement to express his
remorse, and the victim’s granddaughter made a statement to explain the impact on the
family. The State described Quinn’s criminal history, although neither a pre-sentence
investigation report, nor any other documentation, was presented to support the
statements. The State urged the court to order consecutive sentences because the
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offenses were committed while Quinn was under indictment and out on bond for an earlier
charge of Domestic Violence against the same victim, and because consecutive
sentences were necessary to protect the public and the victim.
{¶ 9} Quinn was sentenced to serve a total of twenty years in prison; three years
for each of the two Domestic Violence convictions, three years for the Intimidation
conviction, and eleven years for the Kidnapping conviction. The trial court ordered the
sentences to run consecutively, after finding that consecutive sentences are necessary
to protect the public from future crime and to punish the defendant, are not
disproportionate to the seriousness of the defendant’s conduct and to the danger the
defendant poses to the public, are necessary to protect the public from future crime by
the defendant given the defendant’s history of criminal conduct, that at least two of the
multiple offenses were committed as a course of conduct, that the harm caused by the
offenses so committed is so great or unusual that no single prison term adequately
reflects the seriousness of the defendant’s conduct, and that the defendant committed
one or more offenses while he was under indictment awaiting trial.
{¶ 10} Four months after the trial and conviction, Quinn filed a motion for a new
trial and attached three affidavits; his own affidavit and two affidavits from his mother,
Beverly, who recanted her trial testimony. The motion also requested a hearing. In the
affidavits filed in support of the motion for a new trial, Beverly avers that her testimony
was based on what she was told by her family and by the prosecutor. She avers that at
the time of the incident, she was not wearing her glasses or hearing aid, and she was on
medication that caused her confusion. She avers that she does not believe that Quinn
committed the crimes against her, because she knows he had consumed two fifths of
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vodka and was too drunk to stand or drive on the night of the incident. The trial court
overruled the motion for a new trial without conducting a hearing. The trial court
concluded:
The defendant offered no new evidence that would create a strong
possibility that a different result would occur. The victim’s testimony was
clearly supported by the surveillance video from Walmart, where it is clear
that the victim ran from defendant’s car. The Defendant is depicted on the
video leaving very quickly when he sees his mother has the attention of the
store clerk. The victim is the defendant’s mother and it is only natural that
she might change her testimony as she has done in past hearings, but the
Walmart video clearly supports the victim’s testimony at trial. Therefore,
defendant has offered no new evidence that shows any probability that any
different result would apply to the facts of this case.
III. The Trial Court Did Not Err by Overruling the Motion for a New Trial
Without Conducting a Hearing
{¶ 11} Quinn’s First and Second Assignments of Error will be considered together,
which assert as follows:
THE TRIAL COURT ABUSED ITS DISCRETION DENYNG THE
DEFENDANT’S MOTION FOR A NEW TRIAL BASED ON THE BELIEF
THAT THE TRIAL TESTIMONY WAS SUPPORTED BY THE
SURVEILLANCE VIDEO AND WOULD NOT CREATE A STRONG
PROBABILITY OF A DIFFERENT RESULT AT TRIAL
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THE TRIAL COURT’S FINDINGS WERE UNSUPPORTED BY THE
RECORD. THE FINDINGS THE TRIAL COURT MADE WENT TOWARD
THE APPELLANT’S INNOCENCE, NOT HIS GUILT. THEREFORE, THE
TRIAL COURT ABUSED ITS DISCRETION IN NOT GRANTING THE
APPELLANT A NEW TRIAL.
{¶ 12} A ruling on a motion for a new trial is within the trial court's discretion and
will not be disturbed on appeal absent a showing of abuse of discretion. State v. Schiebel,
55 Ohio St.3d 71, 564 N.E.2d 54 (1990); State v. Williams, 43 Ohio St.2d 88, 330 N.E.2d
891 (1975). “[I]t is within the trial court's discretion to determine whether or not it is
necessary to hold an evidentiary hearing on a new trial motion.” State v. Moore, 7th Dist.
Mahoning No. 13 MA 9, 2014-Ohio-358, ¶ 19, citing State v. Green, 7th Dist. Mahoning
No. 05 MA 116, 2006-Ohio-3097, ¶ 11. An abuse of discretion “implies that the court's
attitude [was] unreasonable, arbitrary, or unconscionable.” State v. Adams, 62 Ohio St.2d
151, 157, 404 N.E.2d 144 (1980). “A decision is unreasonable if there is no sound
reasoning process that would support that decision.” AAAA Enterprises, Inc. v. River
Place Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 13} In State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), the Supreme
Court of Ohio held that “[t]o 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
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not merely cumulative to former evidence, and (6) does not merely impeach or contradict
the former evidence.” Id. at syllabus.
{¶ 14} In Dayton v. Martin, 43 Ohio App.3d 87, 90, 539 N.E.2d 646 (2d Dist.
1987), we concluded that “[w]hile Petro stands for the proposition that newly discovered
evidence that merely impeaches or contradicts other evidence is not enough for a new
trial, we do not read Petro as establishing a per se rule excluding newly discovered
evidence as a basis for a new trial simply because that evidence is in the nature of
impeaching or contradicting evidence. The test is whether the newly discovered evidence
would create a strong probability of a different result at trial, or whether it is merely
impeaching or contradicting evidence that is insufficient to create a strong probability of
a different result.” Accord State v. Smith, 2d Dist. Montgomery No. 23945, 2011-Ohio-
2189, ¶¶ 24-25; State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, 869 N.E.2d
77, ¶ 21 (2d Dist.).
{¶ 15} When the motion for a new trial is based upon newly discovered evidence
which is primarily the recantation of the prosecution's primary witness, we have held that
the trial court “must make two findings: (1) which of the contradictory testimonies of the
recanting witness is credible and true, and if the recantation is believable; (2) would the
recanted testimony have materially affected the outcome of the trial?” State v. Arnold,
189 Ohio App.3d 507, 2010-Ohio-5379, 939 N.E.2d 218, ¶ 30 (2d Dist.), citing Toledo v.
Easterling, 26 Ohio App.3d 59, 498 N.E.2d 198 (6th Dist. 1985). Accord State v. Williams,
2d Dist. Montgomery No. 19854, 2004-Ohio-3135.
{¶ 16} In the case before us, the trial court, without holding a hearing, determined
that the trial testimony of the victim was more credible than the statements she made in
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the post-trial affidavits. The trial court relied on the fact that the same witness had
recanted testimony at previous hearings, but did not specify what hearings, the nature of
the testimony or how the recantation affected the outcome. If the trial court was deciding
credibility based on Beverly’s testimony given in other cases, a different proceeding other
than the trial, or on the witness’s reputation for truthfulness, then an abuse of discretion
occurred as a result of the trial court’s consideration of matters outside of the record in
this case. However, we fail to see how Beverly’s lack of credibility in the past would lead
to a conclusion that her testimony at trial was more credible than the post-trial affidavit.
{¶ 17} To determine which of the contradictory testimonies of a recanting witness
is credible and true, a trial court must be able to point to evidentiary support in the record
for its conclusion. In most cases where a motion for a new trial is based on recanted
testimony of the State’s primary witness, it will be necessary for the trial court to conduct
a hearing to weigh the credibility of the testimony. See, e.g., State v. McConnell, 170 Ohio
App.3d 800, 2007-Ohio-1181, 869 N.E.2d 77, ¶ 21 (2d Dist.); State v. Wright, 67 Ohio
App.3d 827, 588 N.E.2d 930 (2d Dist. 1990); State v. Fuson, 5th Dist. Knox No. 02CA23,
2002-Ohio-6601, ¶ 10 (evidentiary hearing on motion for new trial necessary to more
accurately access the credibility of the witnesses because it is difficult to compare written
and live testimony). “The underlying rationale of giving deference to the findings of the
trial court rests with the knowledge that the trial judge is best able to view the witnesses
and observe their demeanor, gestures and voice inflections, and use these observations
in weighing the credibility of the proffered testimony.” Seasons Coal Co. v. City of
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). In other cases, a trial court
can rule on the motion for a new trial, without a hearing, when the affidavit appears
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“insufficient on its face,” especially when viewed “in light of the physical and medical
evidence produced at trial and the circumstances surrounding the case and the alleged
recantation.” State v. McConnell, 2d Dist. Montgomery No. 24315, 2011-Ohio-5555, ¶ 19.
“[T]he decision of whether a hearing is warranted upon such a motion also lies soundly
with the discretion of the trial court.” State v. Butler, 2d Dist. Clark No. 2003 CA 26, 2004-
Ohio-2036, ¶ 49.
{¶ 18} In the case before us, the trial court determined that the recanted testimony
would not affect the outcome of the trial because evidence of Quinn’s guilt was
independently established by the admission of the surveillance video. We disagree. The
record establishes that no testimony was given from anyone to identify Quinn as the
person in the video who made contact with Beverly and the Walmart employee. On both
direct and cross-examination, the Walmart employee who talked with Beverly in the
parking lot, could not identify Quinn as the person who approached him and Beverly and
whom he asked to leave, as depicted in the video. Also contrary to the trial court’s
finding, the record contains no testimony from anyone who positively identified the car in
the video as the defendant’s car. Actually, the only testimony at trial regarding what car
Quinn was driving was from Beverly, who said he was driving her tan sedan, not a white
station wagon as depicted in the video. We have viewed the video, which does not
reveal a clear or close enough view of the person’s face to match it with Quinn. The video
does not independently provide sufficient evidence to convict Quinn of any of the charged
offenses.
{¶ 19} However, the record does contain sufficient support for finding that
Beverly’s testimony at trial was more credible than her post-trial affidavits. At trial,
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evidence was presented from the officers who investigated the two separate incidents
and the ER Nurse who talked with Beverly after she left Walmart. One officer testified that
Beverly identified her son as the person who attacked her in her home. A detective
testified that Beverly identified her son as the person who forced her into a car, threatened
to harm her, and hit her face, causing visible injuries. The Walmart employee also testified
that Beverly told him that her son was trying to hurt her. Although hearsay, these
witnesses’ testimony was properly admitted as an excited utterance, an exception to the
hearsay rule under Evid. R. 803(2). In ruling on the motion for a new trial, the trial court
should have considered whether the testimony of the officers, the Walmart employee,
and the nurse was sufficient to support the credibility of the victim’s excited utterances at
the time of the offenses, even if the victim later recanted her testimony. The trial court
should have also considered the testimony of the investigating officers, the Walmart
employee and the medical professionals, who all testified that although Beverly was
scared, she was lucid, articulate and not confused or disoriented at the time she described
details of the events that had just happened to her. The mental, emotional and physical
condition of a Beverly’s state of mind at the time she made statements to the officers and
medical professionals was properly admissible under Evid. R. 803(3).
{¶ 20} In reviewing motions for a new trial, we have applied case law established
for reviewing the credibility of affidavits supporting petitions for post-conviction relief.
State v. Beavers, 166 Ohio App.3d 605, 2006-Ohio-1128, 852 N.E.2d 754, ¶¶ 20-21 (2d
Dist.). “In assessing the credibility of affidavits, the trial court should consider all relevant
factors, including: ‘(1) whether the judge reviewing the post-conviction relief petition also
presided at the trial, (2) whether multiple affidavits contain nearly identical language, or
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otherwise appear to have been drafted by the same person, (3) whether the affidavits
contain or rely on hearsay, (4) whether the affiants are relatives of the petitioner, or
otherwise interested in the success of the petitioner's efforts, and (5) whether the
affidavits contradict evidence proffered by the defense at trial. Moreover, a trial court may
find sworn testimony in an affidavit to be contradicted by evidence in the record by the
same witness, or to be internally inconsistent, thereby weakening the credibility of that
testimony.’” State v. Calhoun, 86 Ohio St.3d 279, 285, 714 N.E.2d 905 (1999). “One or
more of the Calhoun factors, to the extent that any of them apply, may be sufficient to
justify a conclusion that an affidavit asserting information outside the record lacks
credibility.” Beavers at ¶ 21.
{¶ 21} In the case before us, all of the Calhoun factors justify a conclusion that
the affidavits filed in support of the motion for a new trial lacked credibility. The trial judge
who presided over the trial is the same judge who reviewed the affidavit and determined
its lack of credibility. In their post-trial affidavits, both Quinn and his mother describe his
level of intoxication on the night of the offenses as “too drunk to stand.” Beverly’s
statements regarding how much Quinn had to drink and his ability to drive on the night of
the incident, if believed, had to be based on hearsay statements Quinn made to her. She
also claims that her original story was derived from fear based on hearsay statements
made to her by family and the prosecutor. However, the trial testimony of the officers, the
Walmart employee, and the ER Nurse confirmed that the story Beverly told at trial was
consistent with the statements she made to them on the night of the incident, before she
talked to her other family members or the prosecutor. The affidavits were signed by
Quinn’s mother, who may naturally want to protect her son from long-term incarceration.
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Quinn’s new claim that Beverly was confused is not supported by the investigating officers
or the medical professionals, who all found her oriented and articulate. Quinn’s new claim
that Beverly did not hear her son’s voice on the night of the incident is directly contradicted
by her trial testimony that he took her to a bridge and told her to jump, then said he would
not hurt her if she did not testify against him. Based on the lack of Beverly’s credibility
in her affidavits, and the strength of her credibility at trial, as supported by the testimony
of numerous witnesses, we conclude that even if the jury was presented with the new
evidence there is not a strong probability that the outcome would be different.
{¶ 22} Based on the circumstances of the case before us, we conclude that the
trial court did not err by not conducting a hearing on the motion for a new trial, or by
overruling the motion for a new trial. Therefore, Quinn’s First and Second Assignment
of Errors are overruled.
IV. Conclusion
{¶ 23} Both assignments of error having been overruled, the order of the trial court
overruling Quinn’s motion for a new trial is Affirmed.
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DONOVAN, J., and WELBAUM, J., concur.
Copies mailed to:
Ryan A. Saunders
Lucas W. Wilder
Hon. Douglas M. Rastatter