[Cite as State v. Phillips, 2014-Ohio-4947.]


                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio,                                       :

                 Plaintiff-Appellee,                 :
                                                                     No. 14AP-362
v.                                                   :            (C.P.C. No. 12CR-3644)

Malcolm Phillips,                                    :           (REGULAR CALENDAR)

                 Defendant-Appellant.                :



                                               D E C I S I O N

                                     Rendered on November 6, 2014


                 Ron O'Brien, Prosecuting Attorney, and Michael P. Walton,
                 for appellee.

                 Robey & Robey and Gregory Scott Robey, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1} Defendant-appellant, Malcolm Phillips, appeals from a decision and entry
of the Franklin County Court of Common Pleas denying appellant's motion for a new trial.
Because the trial court did not abuse its discretion in denying appellant's motion for a new
trial, we affirm.
I. Facts and Procedural History
        {¶ 2} By indictment filed July 20, 2012, plaintiff-appellee, the State of Ohio,
charged appellant with one count of possession of cocaine, in violation of R.C. 2925.11, a
first-degree felony with an accompanying firearm specification, and one count of having a
weapon while under disability, in violation of R.C. 2923.13, a felony of the third degree.
        {¶ 3} At trial, the state presented evidence that a trash pull conducted on
January 27, 2012 at appellant's residence produced a trace amount of cocaine and
No. 14AP-362                                                                             2


packaging materials consistent with cocaine trafficking. A subsequent search warrant
issued on January 31, 2012, based in part on the result of the trash pull, yielded
approximately $5,000 in cash and a digital scale with a trace amount of cocaine on it. The
next day, February 1, 2012, appellant rented a storage unit at 5275 Gender Road.
       {¶ 4} Two days later, on February 3, 2012, appellant was a passenger in his own
vehicle being driven by Bruce Wiggins. During a traffic stop and search of the vehicle,
police arrested appellant for possession of marijuana and cocaine. Police conducted a
search incident to arrest of appellant's person and found an access card for the storage
unit. Later that day, police located the storage unit, and a police canine alerted to the
presence of a narcotics odor inside the unit. While police waited for a search warrant to
issue, two plain-clothes police officers guarding the unit saw appellant driving his vehicle
toward the unit. Two other men, Wiggins and Deandre Green, were in the vehicle with
appellant. The three men attempted to flee the scene, but police eventually apprehended
appellant.
       {¶ 5} Once the search warrant for the storage unit issued, police officers opened
the unit and found that it was largely empty. The only items in the storage unit were an
empty box and a black duffel bag. The duffel bag contained 138 grams of cocaine, two
firearms, and cash.
       {¶ 6} Following the trial, the jury returned guilty verdicts as to all counts. After a
sentencing hearing, the trial court sentenced appellant in a January 13, 2014 judgment
entry to a term of imprisonment totaling 13 years.          Appellant timely appealed his
conviction to this court, and that appeal is still pending. State v. Phillips, 10th Dist. No.
14AP-79.
       {¶ 7} On January 13, 2014, appellant filed a motion for a new trial based on newly
discovered evidence pursuant to Crim.R. 33(A)(6). Appellant included with his motion an
affidavit from Green. The trial court conducted a hearing on appellant's motion on
February 21 and March 28, 2o14. Green, appellant's only witness at the hearing, testified
that he approached appellant's counsel after appellant's sentencing to inform him that the
drugs found in appellant's storage unit actually belonged to Wiggins.
       {¶ 8} According to Green's testimony, Wiggins called Green a week before
appellant's arrest to tell Green that he "had came [sic] up on some stuff like and he was
No. 14AP-362                                                                                3


going to make a lot of money off of it." (Feb. 21, 2014 Tr. Vol. I, 15-16.) Green understood
the "stuff" to mean drugs that Wiggins had stolen from someone else. Green further
testified that, on February 3, 2012, Wiggins called Green after appellant's arrest for drug
possession. According to Green's testimony, in this conversation, Wiggins informed
Green that appellant was going to jail, and Wiggins said he needed to "find something to
do with this other stuff that I got." (Feb. 21, 2014 Tr. Vol. I, 20.) Green then testified that,
when he accompanied Wiggins and appellant to the storage unit, it was Wiggins who
yelled for appellant to "pull off" and to "get out of here" after spotting the plain-clothes
police officers. (Feb. 21, 2014 Tr. Vol. I, 18.) When asked why he did not come forward
with this information before or during appellant's trial, Green testified he "was scared,
and * * * didn't want to get in no trouble also." (Sic.) (Feb. 21, 2014 Tr. Vol. I, 22.) Green
also testified he did not realize appellant would face such a severe sentence for these
crimes.
       {¶ 9} In a decision and entry dated April 2, 2014, the trial court denied appellant's
motion for a new trial. Appellant timely appeals.
II. Assignments of Error
       {¶ 10} Appellant assigns the following three errors for our review:
              [1.] The trial court erred and abused its discretion in
              overruling appellant's motion for a new trial.

              [2.] The trial court erred in its factual findings creating an
              abuse of discretion in denying appellant's motion for a new
              trial.

              [3.] The trial court abused its discretion when it permitted the
              state to attack upon the credibility of defense counsel and
              Deandre Green, by questioning the circumstances of when the
              affidavit was signed, without a solid basis to do so, thereby
              prejudicing appellant.

III. Standard of Review and Applicable Law
       {¶ 11} The decision of whether to grant a new trial pursuant to a Crim.R. 33
motion rests within the sound discretion of the trial court. State v. Salinas, 10th Dist. No.
09AP-1201, 2010-Ohio-4738, ¶ 40, citing State v. Schiebel, 55 Ohio St.3d 71, 76 (1990).
An appellate court reviews a trial court's determination of a Crim.R. 33 motion for an
No. 14AP-362                                                                               4


abuse of discretion. Id., citing Schiebel; State v. Townsend, 10th Dist. No. 08AP-371,
2008-Ohio-6518, ¶ 8.      An abuse of discretion implies the trial court's decision was
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219 (1983).
       {¶ 12} A trial court may grant a new trial under Crim.R. 33(A)(6) "[w]hen new
evidence material to the defense is discovered which the defendant could not with
reasonable diligence have discovered and produced at the trial." The language of Crim.R.
33 makes it clear that a trial court should not grant a new trial " 'unless it affirmatively
appears from the record that a defendant was prejudiced by one of the grounds stated in
the rule, or was thereby prevented from having a fair trial.' " Salinas at ¶ 41, quoting
Columbus v. Carroll, 10th Dist. No. 96APC01-90 (Aug. 27, 1996).
IV. First Assignment of Error – Motion for New Trial
       {¶ 13} In his first assignment of error, appellant argues the trial court abused its
discretion in denying his motion for new trial. According to appellant, Green's affidavit
and testimony at the motion hearing constitute newly discovered evidence under Crim.R.
33(A)(6) entitling appellant to a new trial.
       {¶ 14} Newly discovered evidence may warrant a new trial if the defendant
demonstrates:
              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 trial, (4)
              is material to the issues, (5) is not merely cumulative to the
              other evidence, and (6) does not merely impeach or contradict
              the other evidence.

State v. Burke, 10th Dist. No. 06AP-686, 2007-Ohio-1810, ¶ 17, citing State v. Hawkins,
66 Ohio St.3d 339, 350 (1993); State v. Petro, 148 Ohio St. 505 (1947), syllabus; State v.
Norman, 10th Dist. No. 04AP-1312, 2005-Ohio-5087.
       {¶ 15} The trial court determined appellant's motion failed for a fundamental
reason: credibility. Though the trial court noted that Green's testimony was consistent
with his affidavit, the trial court, in no uncertain terms, did not find Green to be a credible
witness. As a general rule, credibility determinations rest " 'solely with the finder of fact
No. 14AP-362                                                                                 5


and an appellate court may not substitute its own judgment for that of the finder of fact.' "
State v. Gordon, 10th Dist. No. 10AP-1174, 2011-Ohio-4208, ¶ 13, quoting State v. Awan,
22 Ohio St.3d 120, 123 (1986). Importantly here, the finder of fact is free to believe all,
part or none of a witness's testimony. Id., citing Hill v. Briggs, 111 Ohio App.3d 405, 411
(10th Dist.1996).
       {¶ 16} As the finder of fact, the trial court determined Green lacked credibility and,
thus, the evidence was not sufficient to warrant a new trial. Although Green did not
testify at appellant's trial, he was interviewed by appellant's counsel prior to trial and did
not share his information even though he describes himself as a close friend of appellant.
This situation is analogous to a motion for new trial based on a witness recanting his or
her trial testimony. "In determining the credibility of a witness's recanted testimony,
newly discovered evidence that recants testimony given at trial is looked upon with the
utmost suspicion." State v. Woodward, 10th Dist. No. 08AP-1015, 2009-Ohio-4213, ¶ 21,
citing State v. Jones, 10th Dist. No. 06AP-62, 2006-Ohio-5953, ¶ 25. Because measuring
the credibility of witnesses is the responsibility of the trial court, only after the trial court
determines that a witness's testimony is to be believed does the court move on to
determining whether the new evidence would materially affect the outcome of the trial.
Id. at ¶ 22; see also State v. Billman, 7th Dist. No. 12 MO 3, 2013-Ohio-5774, ¶ 44, citing
State v. Perdue, 7th Dist. No. 04 MA 119, 2005-Ohio-2703, ¶ 18, 27. Even though this
situation does not involve a recantation of prior trial testimony, the credibility
determination is still the paramount concern of the trial court in assessing proposed
newly discovered evidence in support of a motion for a new trial. Because the trial court
here found the evidence wholly lacking in credibility, there was no need to determine
whether the evidence would have affected the outcome of the trial.
       {¶ 17} Even if the trial court had found Green to be credible, the trial court
nonetheless did not abuse its discretion in denying appellant's motion for a new trial. The
state asserts that appellant's proposed newly discovered evidence fails the first prong of
the above test: it does not disclose a strong probability that it will change the result if a
new trial is granted. Where the effect of the newly discovered evidence is not to place sole
responsibility for the crime on someone other than the defendant and to exonerate the
defendant, the testimony does not disclose a strong probability that it will change the
No. 14AP-362                                                                              6


result if a new trial is granted. State v. Barber, 3 Ohio App.3d 445, 448 (10th Dist.1982)
(noting that the proposed testimony, "when considered together with the testimony at
trial, would not serve to exclude defendant from responsibility and exonerate her" and
thus does not warrant granting a new trial).
       {¶ 18} We agree with the state. At appellant's trial, the jury received instructions
as to appellant as the principal offender and as to aiding and abetting. Indeed, as the trial
court noted, even if Green's testimony is to be believed, it does not exclude appellant from
culpability. While Green's affidavit and testimony serve to implicate Wiggins as a co-
defendant in the offenses, this evidence does not establish that appellant had no
knowledge of the items found in his storage unit or that he did not aid and abet Wiggins.
       {¶ 19} There was ample evidence presented at trial linking appellant to the charged
offenses. In addition to the drugs, money, and weapons recovered at appellant's storage
unit, the state also presented evidence regarding the results of a search warrant executed
at appellant's residence a few days prior to the traffic stop. That search warrant yielded
large amounts of cash and a digital scale with cocaine residue, both associated with drug
trafficking. When this is combined with the evidence recovered from the trash pull, the
timing of appellant renting the storage unit after the search of his house and before the
traffic stop, and the appellant driving to the storage unit with Wiggins after his arrest for
drug possession, the jury had ample evidence from which to convict appellant. Green's
testimony, when considered in light of the evidence presented at trial, does not serve to fix
sole responsibility on Wiggins and exonerate appellant. Thus, because Green's affidavit
and testimony did not sufficiently establish a strong probability of a different result, the
trial court did not abuse its discretion in denying appellant's motion for a new trial.
       {¶ 20} The trial court also expressed some serious doubts as to whether Green's
testimony would be admissible at trial. Having determined the evidence is not sufficient
to create a substantial likelihood of a different result, however, we decline to address the
trial court's admissibility concerns. Accordingly, we overrule appellant's first assignment
of error.
V. Second Assignment of Error – Factual Findings
       {¶ 21} Appellant next argues the trial court erred in making factual findings
rendering its entire decision denying appellant's motion an abuse of discretion.
No. 14AP-362                                                                               7


Specifically, appellant notes that the trial court erroneously stated that Green drove to the
hearing with appellant's family "all the way from Northeast Ohio." (Emphasis omitted.)
(Apr. 2, 2014 Decision and Entry, 7.) In fact, both Green and appellant's family live in the
Columbus, Ohio area.
       {¶ 22} Though the above statement is indeed erroneous, when read in context of
the decision, it does not support a conclusion that the trial court abused its discretion in
denying appellant's motion. The full statement of the trial court reads:
              Consider, too, that this witness drove all the way from
              Northeast Ohio with the Defendant's family, and not once did
              he ever say, "Well, you know, these drugs all belonged to
              Bruce Wiggins." And this is four weeks after the Defendant
              not only was convicted, but also after he had his bond
              revoked. Even the dullest of persons in Mr. Green's situation
              (i.e. close friend to the Defendant; occupied the car with the
              Defendant's family) had to know that the Defendant was
              prison bound.

(Emphasis sic.) (Apr. 2, 2014 Decision and Entry, 7.) Thus, when read in context, it is
evident that the point the trial court was trying to make was that Green's explanation for
not coming forward earlier with his testimony was not credible given that he was good
friends both with appellant and appellant's family. Additionally, though Green did not
ride with appellant's family from Northeast Ohio, he did ride in the car to appellant's
sentencing hearing with appellant's family. The trial court was attempting to illustrate
why it did not find Green credible; it was the close relationship Green professed to have
with appellant and appellant's family that the trial court was highlighting, not the
mistaken statement that Green lived in Northeast Ohio.
       {¶ 23} Thus, even though this was an inaccurate statement by the trial court, it did
not concern a material fact and, thus, was not dispositive of the trial court's decision in
denying the motion for new trial. See, e.g., Israfil v. Warren Corr. Inst., 10th Dist. No.
10AP-901, 2011-Ohio-2546, ¶ 12 (noting that, even if the trial court made an erroneous
factual finding, where that finding did not involve "a dispositive fact in the case," the error
was not sufficient to affect the court's decision).        We overrule appellant's second
assignment of error.
No. 14AP-362                                                                              8


VI. Third Assignment of Error – Surveillance Video of the Courthouse
       {¶ 24} In his third and final assignment of error, appellant asserts the trial court
erred in permitting the state to attempt to impugn the credibility of both defense counsel
and Green by introducing surveillance video of the courthouse from the time when Green
stated he executed his handwritten affidavit.
       {¶ 25} During the state's cross-examination of Green at the hearing on appellant's
motion, the state introduced surveillance video from the Franklin County Courthouse.
Appellant had stated both in his affidavit and in his testimony that, after he attended
appellant's sentencing hearing, he decided to come forward to appellant's counsel. He
testified that he executed his affidavit that same day while still at the courthouse following
the sentencing hearing.     The state showed surveillance video of Green leaving the
courthouse and suggested that either Green or appellant's counsel were not being truthful
as to the circumstances under which Green executed his affidavit. However, appellant
asserts that a complete review of the surveillance footage would have showed Green
reenter the courthouse after a short time and meet with appellant's counsel in a
conference room to write and sign his affidavit. Appellant asserts it was error for the trial
court to permit the state to use only a portion of the full video in its attempt to undermine
Green's credibility.
       {¶ 26} Once the trial court heard appellant's response that the video stopped short
and would have showed Green returning to the courthouse had the full video been
presented, the trial court noted on the record that "[t]he video plays no part in my
determination of [Green's credibility], absolutely none whatsoever." (Mar. 28, 2014 Tr.
Vol. II, 57.) Nonetheless, appellant asserts it would have been impossible for the court not
to consider the video once it had seen it. "[I]t is presumed that a judge will follow the law
in ruling upon a motion for a new trial when that same judge presided during the original
trial." In re Disqualification of Nichols, 74 Ohio St.3d 1215 (1989). Additionally, " '[w]e
indulge in the usual presumption that in a bench trial in a criminal case the court
considered only the relevant, material, and competent evidence in arriving at its judgment
unless it affirmatively appears to the contrary.' " State v. Chatman, 10th Dist. No. 08AP-
803, 2009-Ohio-2504, ¶ 17, quoting State v. White, 15 Ohio St.2d 146, 151 (1968).
No. 14AP-362                                                                               9


         {¶ 27} Here, it affirmatively appears on the record that the trial court did not
consider the surveillance video in making its credibility determination. The trial court
gave other specific reasons it did not find Green credible. Thus, the trial court did not
abuse its discretion in denying appellant's motion for new trial. We overrule appellant's
third and final assignment of error.
VII. Disposition
         {¶ 28} Based on the foregoing reasons, the trial court did not abuse its discretion in
denying appellant's motion for a new trial.            Having overruled appellant's three
assignments of error, we affirm the judgment of the Franklin County Court of Common
Pleas.
                                                                         Judgment affirmed.

                             BROWN and CONNOR, JJ., concur.
