[Cite as State v. Bentley, 2018-Ohio-4478.]


                                      IN THE COURT OF APPEALS

                                  ELEVENTH APPELLATE DISTRICT

                                     ASHTABULA COUNTY, OHIO


 STATE OF OHIO,                                     :        OPINION

                    Plaintiff-Appellee,             :
                                                             CASE NO. 2017-A-0088
          - vs -                                    :

 DWAYNE BENTLEY,                                    :

                    Defendant-Appellant.            :


 Criminal Appeal from the Ashtabula County Court of Common Pleas.
 Case No. 02 CR 294.

 Judgment: Affirmed.


 Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
 Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
 44047-1092 (For Plaintiff-Appellee).

 Gregory T. Stralka, 6509 Brecksville Road, P.O. Box 31776, Cleveland, OH 44131 (For
 Defendant-Appellant).



TIMOTHY P. CANNON, J.

        {¶1}       Appellant, Dwayne Bentley, appeals from a judgment of the Ashtabula

County Court of Common Pleas overruling his motion for new trial. The judgment is

affirmed.

        {¶2}       In October 2002, appellant was indicted on twelve counts of rape, violations

of R.C. 2907.02. The victim in each count was appellant’s daughter, C.B. C.B. testified

against appellant; she was twelve years old at the time of trial. In 2005, appellant was
convicted on eight counts of rape: six counts that occurred between January 1, 1994, and

January 1, 1995, when C.B. was two or three years old; and two counts that occurred in

October 2001 when C.B. was nine years old. The trial court imposed four consecutive

life sentences and found appellant to be a sexually-oriented offender. See State v.

Bentley, 11th Dist. Ashtabula No. 2005-A-0026, 2006-Ohio-2503.

        {¶3}   Appellant filed a pro se “Motion for Leave to File New Trial Motion” on May

15, 2015. Attached to his motion was an affidavit of C.B. that had been notarized one

year earlier on April 9, 2014. In her affidavit, C.B. stated she “lied on the stand during my

father[’s] trial that he raped me,” “my father never raped me,” and that three caseworkers

from Ashtabula County Children Services had told her “to state my father Dwayne Bentley

raped me and if I did not state my father raped me I will never see my mother or sister

again.” Also attached to appellant’s motion was an August 24, 2010 letter and a March

26, 2011 notarized letter from C.B., both indicating she had lied on the stand because

Children Services threatened she would never see her sister or mother again; a March

26, 2011 notarized letter from B.B., C.B.’s younger sister, stating she was present in the

room when Children Services threatened C.B. to testify; and a July 1, 2011 notarized

letter from J.B., an adult relative, indicating both daughters had told her the same narrative

that was in their letters to appellant.

        {¶4}   The trial court overruled appellant’s motion for leave on May 27, 2015,

without an evidentiary hearing. On appeal, this court reversed the trial court’s judgment,

and the matter was remanded to the trial court to grant appellant leave to file his delayed

motion for new trial. State v. Bentley, 11th Dist. Ashtabula No. 2015-A-0032, 2016-Ohio-

3290.




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          {¶5}   Appellant filed his motion for new trial and motion for evidentiary hearing on

June 24, 2016. Appellant attached the letters and affidavits that were attached to his

motion for leave, as well as his own personal affidavit.

          {¶6}   An evidentiary hearing on the motion was held on March 6, 2017; both

appellant and appellee, the state of Ohio, presented witness testimony and filed closing

briefs.

          {¶7}   The trial court overruled appellant’s motion for new trial on November 27,

2017. Appellant appealed from this judgment and raises one assignment of error for our

review:

          {¶8}   “The trial court’s denial of a new trial to the Appellant was an abuse of

discretion in light of the evidence presented at the hearing.”

          {¶9}   Appellant argues the recantation of C.B.’s testimony, which was

substantiated by another witness, was sufficient for the trial court to grant appellant a new

trial.

          {¶10} Appellant moved for a new trial pursuant to Crim.R. 33(A)(6), which

provides, in relevant part: “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.”

          {¶11} “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




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hearing of the motion for such length of time as is reasonable under all the circumstances

of the case.” Id.

       {¶12} The movant has the burden to show 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 not merely cumulative

to former evidence, and (6) does not merely impeach or contradict the former evidence.”

State v. Petro, 148 Ohio St. 505 (1947), syllabus; State v. Rice, 11th Dist. Ashtabula No.

2012-A-0062, 2014-Ohio-4285, ¶13.

       {¶13} “‘Recantation by an important witness of his or her testimony at the trial

does not necessarily, or as a matter of law, entitle the defendant to a new trial.’” State v.

Pirman, 94 Ohio App.3d 203, 209 (11th Dist.1994), quoting State v. Curnutt, 84 Ohio App.

101, 101 (1st Dist.1948). “‘The determination of such matters rests in the sound discretion

of the trial court, whose action will not be set aside except for clear and manifest abuse.’”

Id., quoting Curnutt, supra, at 101.

       {¶14} “‘[T]he trial court must determine which of the contradictory testimonies of

the recanting witness is credible and true and would the recanted testimony have

materially affected the outcome of the trial.’” Id., quoting State v. Betz, 11th Dist. Trumbull

No. 3906, 1990 WL 20057, *2 (Mar. 2, 1990), citing Toledo v. Easterling, 26 Ohio App.3d

59 (6th Dist.1985), paragraph three of the syllabus. “Some relevant considerations in

weighing the competing versions of testimony are: whether the judge reviewing the new

trial motion also presided over the trial; whether the witness is a relative of the defendant

or otherwise interested in his success; and whether the new testimony contradicts




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evidence proffered by the defense at trial.” State v. Wright, 7th Dist. Harrison No. 11 HA

2, 2011-Ohio-5761, ¶19 (citation omitted). “Furthermore, newly discovered evidence

which purportedly recants trial testimony is ‘looked upon with the utmost suspicion and

must be viewed with strict scrutiny.’” State v. Haynes, 11th Dist. Ashtabula No. 2012-A-

0032, 2013-Ohio-2401, ¶70, quoting State v. Bradley, 101 Ohio App.3d 752, 758-759 (8th

Dist.1995).

      {¶15} C.B. was 9 years old when she accused appellant of sexually abusing her

and was 12 years old when she testified against appellant at trial. At the time of the

hearing on appellant’s motion for new trial, C.B. was 25 years old.

      {¶16} At the hearing, C.B. testified that on the day she made the allegations

against appellant, she was playing video games before school and appellant repeatedly

yelled at her to put on her shoes. C.B. did not listen, and she missed the school bus.

She testified that appellant grabbed her and left marks on her back, but that he did not

punch her as she had originally testified. C.B. testified that when she showed the marks

to her mother, her mother told her to tell the school that she was abused and maybe they

would “take” her. C.B. testified she showed the marks to the school nurse because she

was sad, angry, and felt neglected by her parents, who fought a lot. C.B. remembered

telling the principal and someone from Children Services that she had been sexually

abused because she wanted to “get away,” “run away from everything,” and she knew

they would take her away if she said that. C.B. testified she subsequently told a number

of people about being sexually abused by appellant, but that she was taking medication

at the time that made her feel like a “zombie.” When asked, on cross-examination, about

the details of the sexual abuse, to which she had previously testified and talked about




                                            5
with others, C.B. stated she did not remember making those statements because she

was later put on medication. She also stated she learned of those details from witnessing

“sex parties” her parents had at the house.

       {¶17} C.B. testified that she began writing letters to appellant after she turned 18

years old and left foster care in 2010. She read one letter into the record, in which C.B.

told appellant she had lied on the stand because she was threatened by Children Services

that she would never see her mother and sister again. C.B. also read two affidavits into

the record. One affidavit stated appellant had never touched her and she had been

threatened she would never see her mother and sister again if she did not testify that

appellant raped her. The second affidavit stated she had lied at appellant’s trial and

named two of the three Children Services caseworkers C.B. alleged had threatened her.

       {¶18} C.B. testified her trial testimony was false and that she lied because she

was afraid she would never see her mother and sister again. She was also afraid she

would be in trouble if she told the truth at the trial. On cross-examination, C.B. stated she

never told Children Services that her allegations were false or that she was not going to

testify that appellant had raped her. C.B. further testified she did not tell anyone she had

lied at trial until after she was released from foster care. C.B. stated she contacted an

attorney for advice on obtaining a new trial for appellant, but did not retain him.

       {¶19} C.B. further testified she told Cynthia Day, a caseworker with Children

Services, that appellant had not raped her. Ms. Day testified at the hearing, however,

that C.B. was very open about being sexually abused by appellant and that C.B. never

stated she lied about the allegations or that she was pressured to make the allegations.

The first encounters between C.B. and Ms. Day were in 2008, approximately once a




                                              6
month for a couple years, when Ms. Day was a case aide. Ms. Day later became a

caseworker and was reacquainted with C.B. in 2016 for a situation involving C.B.’s own

children. Ms. Day testified that, at that time, C.B. indicated she did not want appellant to

die in prison and she was communicating with appellant in writing. Ms. Day further

testified that C.B. never said she had lied at appellant’s trial, and C.B. told her appellant

had molested her for as long as she could remember. Ms. Day kept notes regarding this

conversation with C.B., and a portion of those notes was admitted into evidence.

       {¶20} C.B. testified that Detective Bryan Rose contacted her concerning her

recantation, but she refused to meet with him because she did not like constantly talking

about it and only chose to talk to certain people she felt could help her. Detective Rose

testified at the hearing that he made multiple attempts to meet with C.B., but he was

ultimately told by C.B.’s sister that they both refused to meet with him.

       {¶21} B.B., C.B.’s younger sister, who was incarcerated at the time of the hearing,

testified that she was seven or eight years old when they were taken into custody by

Children Services. B.B. testified C.B. told her, after the trial was concluded, that appellant

did not rape her. B.B. further testified that she had overheard one of the caseworkers tell

C.B. to say appellant raped her or she would never see B.B. or their mother again. B.B.

read her affidavit into the record, dated March 26, 2011, which stated she witnessed

Children Services threatening C.B. to testify that appellant raped her. B.B. testified she

never told anyone, prior to her affidavit, that she witnessed Children Services threaten

C.B.

       {¶22} Appellant’s cousin, M.B., testified that he grew up with appellant, who is like

a brother to him. He testified that his two older daughters used to stay at appellant’s




                                              7
home with their cousins, C.B. and B.B.; he stated nothing ever occurred that would cause

him to suspect appellant of sexual abuse. M.B reconnected with C.B. and B.B. after they

were released from foster care. M.B. testified he asked C.B. if her allegations were true,

and she told him they were not. M.B. stated C.B. indicated she made the allegations

because she was angry with appellant, and she lied at trial because she had been

threatened. M.B.’s girlfriend, the mother of M.B.’s four daughters, testified to the same

effect. She testified they had lived with appellant’s family on two occasions and never

witnessed any abuse. Both of their affidavits were entered as exhibits; neither one had

any direct knowledge of what precipitated the charges against appellant.

       {¶23} The state also presented the testimony of Holly Ogden, one of the

caseworkers C.B. accused of threatening her. At the time Ms. Ogden initially interviewed

C.B. and B.B., they were nine and eight years old, respectively. She testified that others

were present during the initial interview: the school nurse, the principal, Deputy Ted

Barger, Jr., and Lee Steinbrink, the intake caseworker. Ms. Ogden saw a bruise on C.B.’s

back, consistent with a fist print, and a cut on her leg; the injuries were photographed.

Ms. Ogden stated both children indicated they had been physically abused, and C.B.

disclosed that she had been sexually abused. Ms. Ogden also testified to some of the

details of the sexual contact offered by C.B. during this interview.

       {¶24} Ms. Ogden testified that C.B.’s allegations of actual sexual conduct or

penetration were not made during the initial interview, only of sexual contact; the more

serious allegations were made later while C.B. was in the custody of Children Services.

Ms. Ogden stated she never threatened to keep C.B. away from her mother and sister if

she refused to testify that appellant had raped her.




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       {¶25} Ms. Ogden further testified that C.B. was removed from a foster home for

acting out sexually, behavior that was attributed to the sexual abuse. C.B. was treated

and ultimately hospitalized for the behaviors she was exhibiting and was prescribed mood

stabilizers.

       {¶26} Deputy Ted Barger, Jr., testified that he was present during the interview

with Children Services and that no one threatened the children in his presence. Deputy

Barger investigated the report of marks on C.B.’s back, and a mark consistent with having

been made by a fist was discovered. C.B. never indicated to Deputy Barger that her

allegations against appellant were untrue.

       {¶27} Also admitted into evidence were affidavits of the school nurse and the

principal, as well as internal emails from the Ohio Public Defender’s Office, which indicate

C.B. attempted to contact them in 2013 regarding recanting her trial testimony.

       {¶28} In addition, psychological assessments were submitted as exhibits at the

hearing, which demonstrate C.B.’s state of mind immediately after she accused appellant

of rape and was removed from the home. These exhibits were not admitted at appellant’s

trial. In its entry, the trial court stated the reports were considered for purposes of the

motion for new trial in order to weigh the credibility of C.B.’s recanted trial testimony

against the version of events to which she testified at the hearing. The trial court indicated

that the reports reinforce the conclusion that C.B.’s trial testimony is more credible and

reliable than her current testimony, but that the same conclusion could be reached without

the reports, in light of the other evidence and testimony presented.

       {¶29} The trial court also found the allegations against the caseworkers were not

credible, in part because C.B. refused to meet with the detective assigned to investigate




                                              9
the “new evidence” that was offered in support of her father’s motion for new trial and

because Ms. Day credibly testified that C.B. told her as recently as 2016 that her father

had molested her for as long as she could remember. Additionally, the trial court found

that one of the letters written by C.B. to appellant was written in such a way that indicates

earlier letters were written and exchanged, but there was no inquiry made at the hearing

as to how many were exchanged nor who initially broached the topic of C.B.’s allegedly

false trial testimony.

       {¶30} Upon review, there is no basis upon which we can conclude the trial court

abused its discretion in finding C.B.’s trial testimony was more credible than her

subsequent recantation. The trial court acknowledged that, if C.B.’s recantation was

believable, it would likely change the result if a new trial is granted; thus, the trial court

undertook a thorough examination of C.B.’s credibility. Although a prior judge presided

over appellants’ trial, the current judge reviewed the transcripts of C.B.’s trial testimony

and of the other trial witnesses, which included a psychologist and psychiatrist that treated

C.B. immediately after she was removed from her home. The trial court also relied on the

evidence presented at trial, the psychological assessments presented at the hearing, and

the testimony of C.B. and other witnesses at the hearing. The trial court concluded it was

not reasonable to believe C.B.’s recantation, in light of the other evidence and testimony

presented at trial that reinforced C.B.’s trial testimony. Further, the trial court stated the

jury, as the trier of fact, deserved the benefit of the doubt in weighing the credibility of

each testifying witness at trial.

       {¶31} The trial court did not abuse its discretion in denying appellant’s motion for

new trial following a full evidentiary hearing.




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       {¶32} Appellant’s sole assignment of error is without merit.

       {¶33} The judgment of the Ashtabula County Court of Common Pleas is hereby

affirmed.



CYNTHIA WESTCOTT RICE, J., concurs,

DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.


                                 ____________________


DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

       {¶34} The appellant in the present case, Dwayne Bentley, is currently serving four

life sentences for raping his daughter, C.B. His convictions stand on C.B.’s testimony.

C.B. has recanted her testimony and her claim to have been pressured into testifying

against her father has been corroborated by a third party. In light of the seriousness of

the charges and their consequences, as well as the credibility of C.B.’s recantation, I

respectfully dissent and would reverse the decision of the trial court.

       {¶35} It is appropriate to grant a motion for new trial based on the recantation of

prior testimony when “there is a strong probability that the newly discovered evidence will

result in a different verdict.” State v. Petro, 148 Ohio St. 505, 508, 76 N.E.2d 370 (1947).

Compare State v. Collier, 8th Dist. Cuyahoga No. 103857, 2016-Ohio-4951, ¶ 56

(affirming the trial court’s decision to grant a motion for new trial “based upon the alleged

victim in the case completely recanting her trial testimony 16 years after the trial”);

Commonwealth v. Mosteller, 284 A.2d 786, 789 (Pa.1971) (“where as here the

defendant’s conviction is based completely on testimony of the child prosecutrix and the




                                             11
truth of that testimony is open to serious question because of the testimony of a

disinterested medical witness, a subsequent recantation of testimony as supported by

this record necessitates a new trial”); State v. D.T.M., 896 P.2d 108, 111 (Wa.App.1995)

(“[w]hen a defendant has been convicted solely on the testimony of a now recanting

witness, it is an abuse of discretion not to grant a new trial”).

       {¶36} In the present case, appellant’s conviction rested upon C.B.’s testimony as

acknowledged by the trial court. November 27, 2017 Judgment Entry at 4 (“[i]f the

recantation of [C.B.] is believable, it would likely change the result if a new trial is

granted”); State v. Bentley, 2016-Ohio-3290, 66 N.E.3d 180, ¶ 18 (11th Dist.) (“[n]o

physical or medical evidence was introduced against appellant at trial”). C.B. claimed

she was pressured to testify against the appellant by children services caseworkers. The

record indicates multiple complaints against the appellant were made to children services,

however, “[e]xcept for the charges in 1994, all other charges were marked by the agency

as ‘unsubstantiated’ and did not result in criminal prosecution.” State v. Bentley, 11th

Dist. Ashtabula No. 2005-A-0026, 2006-Ohio-2503, ¶ 18. Finally, C.B.’s claims were

corroborated by the testimony of her sister (B.B.), who witnessed the alleged coercion but

who did not testify at the appellant’s trial.

       {¶37} While the crimes for which the appellant was convicted are heinous, that

fact, alone, does not justify judicial blindness to the appellant’s right to justice and fairness.

In this case, the sole witness to the alleged crimes has fully recanted her testimony and

her claim of coercion has been corroborated. Justice and fairness dictate that a new trial

is warranted.




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      {¶38} In light of the foregoing, Bentley’s motion for new trial should have been

granted. Accordingly, I respectfully dissent.




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