[Cite as State v. Jeko, 2018-Ohio-665.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-17-1143

        Appellant                                Trial Court No. CR0201602550

v.

Charles Jeko                                     DECISION AND JUDGMENT

        Appellee                                 Decided: February 23, 2018

                                          *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Andrew J. Lastra, Assistant Prosecuting Attorney, for appellant.

                                          *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, state of Ohio, appeals from the June 1, 2017 judgment of the

Lucas County Court of Common Pleas granting the motion of appellee, Charles Jeko, for

a new trial. For the reasons which follow, we reverse.
       {¶ 2} On appeal, appellant asserts a single assignment of error:

              THE TRIAL COURT DECISION GRANTING THE DEFENDANT

       A NEW TRIAL IS AN ABUSE OF DISCRETION BECAUSE THE

       DECISION IS UNREASONABLE, ARBITRARY, AND

       UNCONSCIONABLE IN LIGHT OF THE EVIDENCE ADDUCED AT

       TRIAL AND AFTER CONSIDERATION OF THE ACTIONS OF THE

       DEFENDANT AND DEFENSE COUNSEL DURING TRIAL AS THOSE

       ACTIONS RELATE TO THE APPEARANCE OF THE VICTIM,

       MARIELLE DUSA AT TRIAL.

       {¶ 3} The following evidence was admitted at trial. The Toledo police officer

dispatched to the scene of an alleged assault in the early morning hours of July 26, 2016,

testified he found the victim sitting on a curb on Upton Avenue. She had a large amount

of blood on her forehead and mouth but no injuries on her knees or hands. The officer

photographed her injuries at the hospital. The victim told the officer that she had been at

a bar near the corner of Upton and Berdan and met Jeko. The victim told the officer she

had been pulled by Jeko toward his business/apartment and had hit her. The officer

testified he did not recall the odor of Mace or pepper spray and could not recall seeing a

can of Mace in the area. The officer also spoke to an eyewitness at the scene but did not

check the eyewitness’s line of sight to determine what he could have seen from his house

and did not question any other neighbors.




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       {¶ 4} The witness who had called 911 testified he was checking his mail on his

enclosed front porch that morning when he heard a commotion and arguing. He opened

the porch door to see what was going on. When he heard a woman’s scream, he left the

porch and observed Jeko punch the victim in the face, knocking her out, and she fell into

the street hitting her head on the asphalt. He immediately went to the woman and waved

off traffic so she would not be hit by a car. His 911 call was played for the jury. The

witness further testified he knew Jeko by his first name only and that he owned the

nearby business. The witness did not know the victim. As the witness went to the

victim, he saw Jeko casually walk to his apartment. The witness did not see Jeko put his

hands up to his face. He further testified he never saw the victim spray Jeko with Mace

and did not smell anything unusual in the area. He identified photographs of the area and

indicated where he was standing and where the assault occurred.

       {¶ 5} The police detective who investigated the assault testified that he met the

victim at the hospital. He observed that she had a contusion and bruising, which looked

like “road rash.” She had a contusion on her lip and a laceration on her head. The

victim’s medical records were admitted into evidence and indicate that the lip injury

required three sutures and the wound to the head was glued closed. The records also

contain the statement of the victim that she believed she had passed out more than once.

       {¶ 6} The victim told the detective that Jeko pulled and dragged her two and one-

half blocks toward his business. She never mentioned having or using Mace. The




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detective went to the scene of the crime to investigate. He was unable to locate Jeko that

day and the next day. He spoke to the eyewitness over the phone.

       {¶ 7} The detective explained that the victim’s absence from trial and lack of

cooperation with the investigation, based on his professional experience, was due to a

fear of retribution. He and others attempted several times to personally serve a subpoena

on the victim, but no one answered the door at her home. She also could not be reached

by telephone.

       {¶ 8} The detective further testified he was familiar with Mace and has previously

used it in his work. He testified it is a chemical aerosol agent, with a pungent odor, that

comes out of a canister in a stream. The person spraying the Mace cannot help but get

some of it on themselves. He further testified that he could not recall smelling Mace on

the victim when he talked to her at the hospital. He believed the Mace could be washed

off with 5-10 minutes of flushing the face with water.

       {¶ 9} Jeko testified he is 48 years old, a former boxer, and weighs 225 pounds. He

also testified the victim is 25 years old, 5’ 8” tall, and weighs 145 pounds (although the

medical records from that day indicated she weighed 130 pounds). He stated that he and

the victim have had a tumultuous relationship for about four years and they argued a lot

because she wanted money to support her heroin addiction. Regarding the events of

July 26, 2016, Jeko testified he texted to the victim that he would be at a nearby bar and

she met him there. She immediately began asking for money. He noticed she appeared

to be in a “fogged” state like she was on heroin. They argued for about an hour and,




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when he was ready to leave, the bartender wanted Jeko to take the victim with him and

Jeko also did not want to leave her there while she was in her confused condition. He

denied pulling her toward his apartment.

       {¶ 10} When they were near his business/apartment, Jeko testified they were

arguing about money. The victim turned to grab something out of her purse and he

expected to see her knife he knew she carried. Instead, it was a little tube and she

sprayed him in the face with Mace. He pushed her away and she screamed. She sprayed

him a second time in the face and he struck her. Based on her injuries he presumed he

had struck her with his open left fist, which he admitted caused the injuries she sustained.

He walked into his apartment to wash off the Mace, which took 5-10 seconds, and never

heard the buzzer to the door of his shop. He did not call the police because they had not

done anything about a prior report he made when the victim robbed him. He also did not

call the police about the victim because she had stolen his phone. When he learned that

there was a warrant for his arrest, he turned himself in to the police.

       {¶ 11} Jeko was convicted by a jury on January 26, 2017, of one count of

felonious assault. Before he was sentenced, Jeko’s Crim.R. 33 motion was granted by

the trial court on June 1, 2017. In its sole assignment of error, appellant challenges the

granting of the motion for a new trial.

       {¶ 12} In his motion, Jeko argued, pursuant to Crim.R. 33(B)(2) and (6), that a

new trial was necessary because of newly discovered evidence, which was exculpatory

and suppressed, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10




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L.Ed.2d 215 (1963), as the result of the misconduct by appellant. Jeko supported his

motion with the affidavit of the victim; a videotape of the courtroom showing the

unavailable witness/victim enter the courtroom during closing argument and being

immediately escorted out without the knowledge of defense counsel; and a can of Mace

the victim found in her apartment, which she attested she had given to an attorney

assisting the defense on March 1, 2017.

       {¶ 13} The trial court rejected the claim of misconduct by appellant and a Brady

violation. Jeko did not appeal the judgment. Therefore, we review only his claim that a

new trial was warranted because of newly-discovered evidence. Jeko asserted there were

three pieces of newly-discovered evidence: 1) that the victim had appeared at trial but

was escorted out without the knowledge of the defense; 2) the victim’s affidavit; and

3) the can of Mace used by the victim.

       {¶ 14} Pursuant to Crim.R. 33(A)(6), the discovery of newly-discovered evidence

can warrant a new trial. To grant a new trial on this ground, “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

not merely cumulative to former evidence, and (6) does not merely impeach or contradict

the former evidence.” State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus.

       {¶ 15} Because the trial court exercises discretion in ruling on the motion for new

trial, an appellate court reviews the trial court judgment under an abuse of discretion




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standard. State v. Matthews, 81 Ohio St.3d 375, 378, 691 N.E.2d 1041 (1998). The term

“‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the

court’s attitude is unreasonable, arbitrary or unconscionable.” State v. Adams, 62 Ohio

St.2d 151, 157, 404 N.E.2d 144 (1980) (citations omitted).

       {¶ 16} First, we find the appearance of the victim near the end of the trial is not

evidence and will not justify a new trial under Crim.R. 33(B)(6). The second and third

pieces of evidence relate to the victim’s can of Mace and her affidavit indicating she

pointed a can of Mace at Jeko prior to him striking her. In essence, the “newly-

discovered evidence” is the victim’s recanting of her earlier statements that Jeko had

attacked her.

       {¶ 17} First, this “newly-discovered evidence” does not justify a new trial because

it merely contradicts evidence presented at trial or impeaches a witness. Petro at 509;

State v. Robertson, 1st Dist. Hamilton No. C-160681, 2017-Ohio-7225, ¶ 24; State v.

Arnold, 189 Ohio App.3d 507, 2010-Ohio-5379, 939 N.E.2d 218, ¶ 14 (2d Dist.).

       {¶ 18} In the case before us, witnesses testified that they did not smell anything

unusual, such as Mace, at the site of the crime and the officers testified that they did not

smell Mace on the victim. An eyewitness testified he never saw Jeko put his hands up by

his face. Since the victim did not testify, her subsequent affidavit did not present

anything more than contradictory evidence. The fact that the victim recanted her prior

statement to the prosecution that Jeko had assaulted her and that she pointed a can of




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Mace at him is insufficient to establish a strong probability that a new trial would result

in an acquittal.

       {¶ 19} Second, the victim’s affidavit is not newly-discovered evidence. Jeko was

required to “establish that, with due diligence, this evidence could not have been

presented at trial.” State v. Seiber, 56 Ohio St.3d 4, 17-18, 564 N.E.2d 408 (1990).

Accord State v. Hooks, 12th Dist. Warren No. CA2000-01-006, 2000 Ohio App. LEXIS

4198, *19 (Sept. 18, 2000); State v. Patton, 9th Dist. Summit No. 17432, 1996 Ohio App.

LEXIS 482, *9 (Feb. 14, 1996). The trial court abuses its discretion when it grants a

motion for a new trial when “the record contains no ‘clear and convincing proof that the

defendant was unavoidably prevented from the discovery of the evidence upon which he

must rely.’” State v. Johnson, 8th Dist. Cuyahoga No. 85416, 2005-Ohio-3724, ¶ 72

(citation omitted) (while this case addresses the discovery of evidence in relation to an

untimely-filed motion for a new trial, the same analysis applies to proving the inability to

discover evidence at the time of trial).

       {¶ 20} Since Jeko asserted in his defense the victim sprayed him with Mace,

which provoked him to strike out at her, this knowledge enabled him to question the

victim and call her as a witness or search for the can of Mace. Jeko presented no

evidence that he used all reasonable means to contact the victim or find the can of Mace.

Therefore, we find the trial court abused its discretion in granting the motion for a new

trial. Appellant’s sole assignment of error is found well-taken.




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       {¶ 21} Having found that the trial court did commit error prejudicial to appellant

and that substantial justice has not been done, the judgment of the Lucas County Court of

Common Pleas is reversed. This case is remanded to the trial court for further

proceedings consistent with this judgment. Jeko is ordered to pay the costs of this appeal

pursuant to App.R. 24.


                                                                       Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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