State v. Cremeans

[Cite as State v. Cremeans, 2017-Ohio-202.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
RANDALL CREMEANS : Case No. CT2016-0018
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CR2015-0160
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 17, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GERALD V. ANDERSON II KERRY M. DONAHUE
27 North Fifth Street 6295 Emerald Parkway
P.O. Box 189 Dublin, OH 43016
Zanesville, OH 43702-0189
Muskingum County, Case No. CT2016-0018 2
Farmer, P.J.
{¶1} On April 29, 2015, the Muskingum County Grand Jury indicted appellant,
Randall Cremeans, on one count of aggravated burglary in violation of R.C.
2911.11(A)(2), seven counts of kidnapping in violation of R.C. 2905.01(A)(2) and (3), five
counts of aggravated robbery in violation of R.C. 2911.01(A)(1), and one count of having
weapons while under disability in violation of R.C. 2923.13(A)(3). Several of the counts
carried firearm specifications pursuant to R.C. 2941.145. Said charges arose from an
incident wherein appellant and a codefendant, Christopher Hendricks, entered a home
and victimized seven people while demanding the whereabouts of a known associate,
Brent Mayle.
{¶2} A trial commenced on October 13, 2015. The weapons count was tried to
the bench. The remaining counts were tried to a jury save two of the aggravated robbery
counts that had been nolled. The jury found appellant guilty of the tried counts. The trial
court found appellant guilty of the weapons count. By judgment entry filed November 19,
2015, the trial court sentenced appellant to an aggregate term of thirty years in prison.
{¶3} Appellant filed an appeal and this court affirmed appellant's convictions and
sentence. State v. Creamans, Jr., 5th Dist. Muskingum No. CT2015-0062, 2016-Ohio-
7930.
{¶4} On November 25, 2015, appellant filed a pro se motion for new trial with the
trial court. A supplemental motion was filed by counsel on March 17, 2016. A hearing
was held on April 5, 2016. By judgment entry filed same date, the trial court denied the
motion.
Muskingum County, Case No. CT2016-0018 3
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶6} "THE LOWER COURT VIOLATED THE APPELLANT'S
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW."
II
{¶7} "THE LOWER COURT VIOLATED THE APPELLANT'S
CONSTITUTIONAL RIGHT TO CONFRONTATION OF THE WITNESSES AGAINST
HIM."
III
{¶8} "THE TRIAL COURT VIOLATED THE SEPARATION OF WITNESS
DOCTRINE THAT CONTRIBUTED TO THE DENIAL OF A FAIR TRIAL AND DUE
PROCESS OF LAW TO APPELLANT."
IV
{¶9} "THE TRIAL COURT ABUSED ITS DISCRETION IN NOT GRANTING THE
APPELLANT A NEW TRIAL AND/OR THERE IS SUFFICIENT EVIDENCE IN THE
RECORD FOR THIS APPELLATE COURT TO ORDER A NEW TRIAL."
V
{¶10} "THE STATE OF OHIO VIOLATED U.S. VS. BRADY AND WAS GUILTY
OF MISCONDUCT AND COMPELLED A WITNESS TO IMPROPERLY TESTIFY."
Muskingum County, Case No. CT2016-0018 4
I, II, III, IV
{¶11} Appellant claims the trial court abused its discretion in denying his motion
for new trial. Specifically, appellant claims he was denied due process, denied the right
to confront witnesses, and denied the separation of witnesses. We disagree.
{¶12} Crim.R. 33 governs motions for new trial and states the following in pertinent
part:
(A) Grounds. A new trial may be granted on motion of the defendant
for any of the following causes affecting materially his substantial rights:
(1) Irregularity in the proceedings, or in any order or ruling of the
court, or abuse of discretion by the court, because of which the defendant
was prevented from having a fair trial;
(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, and if time is required by the
defendant to procure such affidavits, the court may postpone the hearing of
the motion for such length of time as is reasonable under all the
circumstances of the case. The prosecuting attorney may produce
affidavits or other evidence to impeach the affidavits of such witnesses.
Muskingum County, Case No. CT2016-0018 5
{¶13} "A motion for new trial pursuant to Crim.R. 33(B) is addressed to the sound
discretion of the trial court, and will not be disturbed on appeal absent an abuse of
discretion." State v. Schiebel, 55 Ohio St. 3d 71 (1990), paragraph one of the syllabus.
In order to find an abuse of discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore, 5 Ohio St. 3d 217 (1983).
{¶14} In his motion for new trial and supplemental motion for new trial, appellant
argued newly discovered evidence and a lack of separation of witnesses out in the
hallway. Appellant submitted the affidavits of Tamica Alexander, Jeremiah Marple, Misti
Simms, and Joni Bocook. Defense counsel subsequently withdrew the affidavit of Mr.
Marple due to its inaccuracy. T. at 56.
{¶15} Appellant argued newly discovered evidence in the form of an affidavit and
audio recording of trial witness Tamica Alexander admitting to committing perjury,
specifically, that she had lied on the stand about appellant having a gun during the
incident. We note Ms. Alexander did not sign her affidavit attached to the November 25,
2015 motion and therefore it lacked evidentiary quality.
{¶16} As explained by the Supreme Court of Ohio in State v. Petro, 148 Ohio St.
505 (1947), syllabus:
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 probability that it will change the
result if a new trial is granted, (2) has been discovered since the trial, (3) is
Muskingum County, Case No. CT2016-0018 6
such as could not in the exercise of due diligence have been discovered
before the 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. Lopa, 96 Ohio St. 410, 117 N.E. 319, approved and
followed.)
{¶17} During the April 5, 2016 motion hearing, defense counsel waived hearing
and wished to rest on the submitted affidavits. T. at 5. The state desired to go forward
with the hearing in order to dispel alleged falsehoods in the affidavits submitted by
appellant. T. at 6-7. The trial court proceeded with the hearing, and defense counsel
called Ms. Alexander to the stand. T. at 17-18. Ms. Alexander testified she wrote out an
affidavit (Defendant's Exhibit A) and gave a sworn audio recording (Defendant's Exhibit
B) to Attorney Adam Grosshandler wherein she stated she lied on the stand during the
trial about appellant having a gun during the incident. T. at 20-21. The audio recording
was played to the trial court and was transcribed into the record. T. at 22, 74-77. On
cross-examination, Ms. Alexander stated she did not lie when she testified during the trial
that appellant had a gun. T. at 25. She explained she made the affidavit and the audio
recording because "I was put on the spot" and she felt pressured to do so. Id. She stated
she was telling the truth when she testified at trial that appellant had a gun during the
incident. Id. Ms. Alexander agreed that she was concerned about appellant receiving a
thirty year sentence and she thought "it would help him to get a lesser sentence" if she
"lied and said he didn't have a gun." T. at 26. On redirect, Ms. Alexander stated when
she testified during trial, she was sure appellant had a gun. T. at 28. Ms. Alexander
Muskingum County, Case No. CT2016-0018 7
explained she made the affidavit and the audio recording because appellant's sister,
Sierra, kept insisting to her over and over that appellant did not have a gun and Ms.
Alexander wanted to "shut her up." T. at 30.
{¶18} Following Ms. Alexander's testimony, defense counsel called Joni Bocook
to the stand. Ms. Bocook stated Ms. Alexander had told her on the day of her trial
testimony that she was not one hundred percent sure if appellant had a gun during the
incident. T. at 35.
{¶19} The next witness called by defense counsel was Misty Sims. Ms. Sims
stated during the trial, she observed witnesses sitting together outside in the hallway. T.
at 47. She stated they were talking about their testimony. T. at 47-48. The only time she
heard the mention of appellant having a gun was when Ms. Alexander was talking to her
mother, who did not testify at the trial. T. at 48. Ms. Sims stated she "saw all the girls
come out one at a time" and agreed "they would then go and tell their story to the next
person that would go in and testify." T. at 50-51. Ms. Alexander denied sitting out in the
hallway with the other witnesses, and denied and did not recall talking to others about her
testimony. T. at 32-33.
{¶20} The next witness, Attorney Grosshandler was unavailable, so defense
counsel proffered his testimony, and the state so stipulated, that he would testify that he
did not witness "anybody being pressured, that there wasn't any pressure put upon" Ms.
Alexander during the making of the audio recording and in fact, Ms. Alexander voluntarily
came in to give her statement. T. at 52-53.
{¶21} During argument to the trial court, defense counsel agreed with the trial
court that during the trial, Brianna Baker also testified that appellant had a gun during the
Muskingum County, Case No. CT2016-0018 8
incident. T. at 61. At the conclusion of the hearing, the trial court denied the motion for
new trial. T. at 74.
{¶22} As explained by this court in State v. Howard, 5th Dist. Stark No.
2014CA00136, 2015-Ohio-2053, ¶ 13:
The defendant is not entitled to a new trial merely because an
important witness recants. State v. Brown, 186 Ohio App. 3d 309, 927
N.E.2d 1133, 2010-Ohio-405, ¶ 20 (7th Dist.Mahoning). If the newly
discovered evidence is a recantation by a main prosecution witness, the
trial court must make two determinations: "(1) which of the contradictory
testimony offered by the recanting witness is credible and true, and if the
recanted testimony is to believed; (2) would the evidence materially affect
the outcome of the trial?" Id., citing Toledo v. Easterling, 26 Ohio App. 3d
59, 62, 498 N.E.2d 198, (1985). Newly discovered evidence must do more
than merely impeach or contradict evidence at trial, and there must be a
compelling reason to accept a recantation over the trial testimony of the
witness. Id. A recanting witness is to be viewed with extreme suspicion
because the witness, by making contradictory statements, either lied at trial,
or in the current testimony, or both times. Id.
{¶23} As noted by the trial court: "And then she [Ms. Alexander] came back in
here today and under oath reaffirmed what she said at trial. So every time she's been in
front of this Court under oath she said Mr. Cremeans had a gun. There's other evidence
Muskingum County, Case No. CT2016-0018 9
that Mr. Cremeans had a gun, so it's not solely based on what Ms. Alexander says." T.
at 66.
{¶24} We do not find any violation of appellant's due process rights by the trial
court proceeding with the hearing. Full and complete testimony was presented to the trial
court regarding Ms. Alexander's recantation. From the record, we find the trial court did
not abuse its discretion in finding Ms. Alexander's recantation of prior testimony to be
false and/or would not materially affect the outcome of the trial. Any arguments involving
Mr. Marple and the confrontation clause are meritless given appellant's withdrawal of Mr.
Marple's affidavit due to inaccuracies. In addition, appellant could have called Mr. Marple
to the stand during the hearing. On the separation of witnesses argument, no evidence
was presented to establish appellant was prevented from having a fair trial.
{¶25} Upon review, we find the trial court did not abuse its discretion in denying
the motion for new trial.
{¶26} Assignments of Error I, II, III, and IV are denied.
V
{¶27} Appellant claims prosecutorial misconduct in the prosecutor withholding
exculpatory evidence and compelling a witness to improperly testify. We disagree.
{¶28} Appellant argues the prosecutor withheld exculpatory evidence by failing to
have one of the witnesses, Jeremiah Marple, testify during the trial and "sent him away"
from the courthouse. Appellant's Brief at 27. Appellant argues Mr. Marple would have
testified that appellant did not have a gun during the incident, "that he tried to help the
situation and that his actions probably saved their lives." Id. Appellant also argues the
prosecutor withheld the fact that Ms. Alexander "tried to tell the Prosecution that her
Muskingum County, Case No. CT2016-0018 10
original statement was incorrect in that she did not think that" appellant had a gun. Id. at
28.
{¶29} Ms. Alexander testified during the trial and was subject to cross-
examination. Appellant does not argue that Mr. Marple, as a victim, was not disclosed as
a potential witness by the prosecution. If the state chose not to call Mr. Marple to the
stand, defense counsel could have called him as a witness.
{¶30} This issue of "prosecutorial misconduct" does not constitute "newly
discovered evidence" and could have been raised on direct appeal.
Under the doctrine of res judicata, a final judgment of conviction bars
the convicted defendant from raising and litigating in any proceeding, except
an appeal from that judgment, any defense or any claimed lack of due
process that was raised or could have been raised by the defendant at the
trial which resulted in that judgment of conviction or on an appeal from that
judgment.
State v. Perry, 10 Ohio St. 2d 175, 180 (1967).
{¶31} Assignment of Error V is denied.
Muskingum County, Case No. CT2016-0018 11
{¶32} The judgment of the Court of Common Pleas of Muskingum County, Ohio
is hereby affirmed.
By Farmer, P.J.
Gwin, J. and
Baldwin, J. concur.
SGF/sg