[Cite as State v. Hoop, 2013-Ohio-3078.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           BROWN COUNTY




STATE OF OHIO,                                  :
                                                         CASE NO. CA2012-10-019
        Plaintiff-Appellee,                     :
                                                               OPINION
                                                :               7/15/2013
   - vs -
                                                :

JOY MAJOR HOOP,                                 :

        Defendant-Appellant.                    :



            CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
                                Case No. 97-2065



Paul L. Scarsella, Special Assistant Brown County Prosecutor, 150 East Gay Street, 16th
Floor, Columbus, Ohio 43215, for plaintiff-appellee

Dennis W. McNamara, 88 East Broad Street, Suite 1350, Columbus, Ohio 43215, for
defendant-appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Joy Major Hoop, appeals the decision of the Brown

County Court of Common Pleas denying her second motion for a new trial. For the reasons

outlined below, we affirm the decision of the trial court.

        {¶ 2} Hoop was convicted in 1998 of conspiracy and complicity in the aggravated

murder of her husband, Donald Ray Hoop. The pertinent facts and procedural history of this
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matter were recently discussed at length in State v. Hoop, 12th Dist. No. CA2011-07-015,

2012-Ohio-992, wherein this court denied her first motion for a new trial. Suffice it to say,

although her conviction was affirmed on appeal, see State v. Hoop, 134 Ohio App.3d 627

(12th Dist.1999) and State v. Hoop, 12th Dist. No. CA2000-11-034, 2001 WL 877296 (Aug.

6, 2001), Hoop continues to advocate her innocence despite the abundance of evidence

directly implicating her in the murder-for-hire scheme.

        {¶ 3} To that end, Hoop has filed a second motion for a new trial alleging she has

now discovered the identity of the individual who provided Carl Lindsey, the gunman, with the

weapon he used to commit the murder.1 The trial court, however, denied the motion finding

this alleged newly discovered evidence was cumulative and served only to impeach the

evidence previously introduced at her trial. The trial court also determined that the evidence

did not provide a strong probability of a different outcome or changed result if a new trial was

granted.

        {¶ 4} Hoop now appeals from the trial court's decision denying her second motion for

a new trial, raising two assignments of error for review. For ease of discussion, we will

address Hoop's two assignments of error together.

        {¶ 5} Assignment of Error No. 1:

        {¶ 6} THE TRIAL COURT ERRED WHEN IT OVERRULED MS. HOOP'S MOTION

FOR A NEW TRIAL.

        {¶ 7} Assignment of Error No. 2:

        {¶ 8} THE TRIAL COURT ERRED WHEN IT OVERRULED MS. HOOP'S MOTION

FOR A NEW TRIAL WITHOUT CONDUCTING AN EVIDENTIARY HEARING.




1. On appeal, the Ohio Supreme Court affirmed Lindsey's convictions and death sentence. See State v.
Lindsey, 87 Ohio St.3d 479 (2000). The United States Supreme Court subsequently denied Lindsey's petition for
a writ of certiorari. See Lindsey v. Ohio, 531 U.S. 838, 121 S.Ct. 99 (2000).
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       {¶ 9} In her two assignments of error, Hoop argues that the trial court erred in its

decision overruling her second motion for a new trial, or, at the very least, erred by denying

the motion without first conducting an evidentiary hearing. We disagree.

       {¶ 10} Crim.R. 33 motions for a new trial are not to be granted lightly. State v.

Thornton, 12th Dist. No. CA2012-09-063, 2013-Ohio-2394, ¶ 21, citing City of Toledo v.

Stuart, 11 Ohio App.3d 292, 293 (6th Dist.1983). In order to prevail on a motion for a new

trial based upon newly discovered evidence, such as the case here, the defendant must

establish that the 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.

       {¶ 11} The decision to grant or deny a motion for a new trial pursuant to Crim.R. 33

rests within the sound discretion of the trial court. State v. Schiebel, 55 Ohio St.3d 71, 76

(1990); State v. Blankenship, 102 Ohio App.3d 534, 556 (12th Dist.1995). Rather than a

mere error of law or judgment, an abuse of discretion implies that the trial court's decision

was unreasonable, arbitrary, or unconscionable. State v. Hancock, 108 Ohio St.3d 57, 2006-

Ohio-160, ¶ 30.

       {¶ 12} Although presenting a number of issues, as the trial court correctly noted,

Hoop's latest request for a new trial is premised exclusively upon the testimony of Lawrence

Handorf, an investigator appointed on Lindsey's behalf, whose deposition was conducted as

part of Hoop's federal habeas corpus case in Hoop v. Andrews, S.D.Ohio No. 1:06-CV-603.

Based on this testimony, Hoop claims that "it is now clear that [she] did not own, possess, or

provide the murder weapon to Lindsey." However, we agree with the trial court's finding that

this evidence serves as nothing more than (1) cumulative evidence that yet another witness
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says she did not provide the gun to Lindsey, which (2) merely further impeaches the

evidence previously introduced at trial that she did. It is well-established that this is an

insufficient basis upon which to grant a new trial.

        {¶ 13} Furthermore, whether Hoop actually provided the gun to Lindsey is not material

to her conviction in the murder-for-hire scheme, nor is there a strong probability that this

evidence would change the outcome if a new trial were granted. As this court has previously

stated, the state's theory of the case was that Hoop was involved in the planning of her

husband's murder. In turn, whether Hoop actually provided Lindsey with the gun used in her

husband's killing was not a dispositive factor in determining her guilt.2 This is particularly true

when considering the other evidence indicating Hoop was overheard conversing with Lindsey

about having her husband killed the night of his murder, a fact which she subsequently

admitted to police, and the fact that she later admitted to Thomas Merriman, an associate of

Lindsey, to paying Lindsey to kill her husband. Therefore, although this evidence may have

been beneficial to Hoop, it was not material to her defense.

        {¶ 14} Moreover, after a thorough review of the record, the evidence does not provide

for a strong probability that the outcome would change even if a new trial were granted. See,

e.g., State v. Widmer, 12th Dist. No. CA2012-02-008, 2013-Ohio-62, ¶ 172 (finding no abuse

of discretion in trial court's decision denying appellant's motion for new trial where allegedly

newly discovered evidence was not material and there was no strong probability that the

evidence would change the outcome regarding where evidence presented indicated he killed

his wife); State v. Barton, 12th Dist. No. CA2005-03-036, 2007-Ohio-1099, ¶ 30-36 (same).

Again, Hoop was overheard conversing with Lindsey about having her husband killed the


2. We are aware that a magistrate in Hoop's federal habeas corpus case concluded that evidence that the
murder weapon was furnished to Lindsey by someone other than Hoop "would have been material at trial." See
Hoop v. Warder Ohio Reformatory for Women, S.D.Ohio No. 1:06-CV-603, 2008 WL 2622989, *3 (June 30,
2008.) However, that case, which has since been held in abeyance, dealt with the issue of whether Hoop was
entitled to discovery as a habeas petitioner, not whether she was entitled to a new trial under Crim.R. 33.
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night of his murder, and later admitted her involvement in the murder-for-hire scheme to one

of Lindsey's associates. Accordingly, based on the facts of this case, the trial court did not

abuse its discretion in denying Hoop's second motion for a new trial, nor in failing to conduct

an evidentiary hearing regarding the same. Hoop's two assignments of error are overruled.

       {¶ 15} Judgment affirmed.


       RINGLAND, P.J., and PIPER, J., concur.




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