[Cite as State v. Little, 2018-Ohio-5267.]


STATE OF OHIO                       )                  IN THE COURT OF APPEALS
                                    )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                    )

STATE OF OHIO                                          C.A. No.      17CA011210

         Appellee

         v.                                            APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
TERRY LITTLE                                           COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
         Appellant                                     CASE No.   07CR074162

                                   DECISION AND JOURNAL ENTRY

Dated: December 28, 2018



         CARR, Judge.

         {¶1}     Appellant, Terry Little, appeals the judgment of the Lorain County Court of

Common Pleas. This Court affirms.

                                                  I.

         {¶2}     In 2009, Little was convicted of aggravated murder and numerous additional

offenses. His convictions stemmed from the death of Lewis Turner, who was shot and killed on

July 30, 2007. The trial court imposed a total sentence of 30 years to life in prison. Little filed a

direct appeal to this Court and his convictions were affirmed. State v. Little, 9th Dist. Lorain No.

10CA009758, 2011-Ohio-768.

         {¶3}     While his appeal was pending, Little filed a petition for post-conviction relief.

The trial court issued a journal entry with findings of fact and conclusions of law denying the

petition.
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       {¶4}    Several years later, on August 11, 2017, Little filed a pro se motion for leave to

file a motion for new trial in addition to a pro se motion for new trial based on newly discovered

evidence. After reviewing the record and the applicable law, the trial court denied the motion for

new trial.

       {¶5}    On appeal, Little raises three assignments of error.

                                                II.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN ABUSING ITS DISCRETION BY DENYING
       APPELLANT’S MOTION FOR NEW TRIAL DUE TO NEWLY
       DISCOVERED EVIDENCE UNDER PROSECUTORIAL MISCONDUCT FOR
       WITHOLDING     FAVORABLE    EVIDENCE     WHICH    VIOLATED
       APPELLANT’S FIFTH, AND FOURTEENTH AMENDMENT RIGHT TO
       DUE PROCESS[.]

       {¶6}    In his second assignment of error, Little contends that the trial court erred in

denying his motion for a new trial based on newly discovered evidence because the State

withheld a 2006 police report from a separate shooting incident involving Lewis Turner that

contained exculpatory evidence. This Court disagrees.

       {¶7}    A trial court’s order ruling on a motion for new trial is reviewed for an abuse of

discretion. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶ 85. An abuse of discretion is

more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or

unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶8}    Crim.R. 33(A) allows a defendant to move for a new trial when his substantial

rights have been materially affected. State v. Gilliam, 9th Dist. Lorain No. 14CA010558, 2014-

Ohio-5476, ¶ 9. Crim.R. 33(B) provides that a motion for new trial based on newly discovered

evidence must be filed within 120 days after the verdict was rendered, unless the defendant
                                                3


shows “by clear and convincing proof that [he] was unavoidably prevented from the discovery of

the evidence upon which he must rely[.]”

       {¶9}    To warrant the granting of a motion for a new trial based upon newly discovered

evidence, the defendant must show 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. Tolliver, 9th Dist. Lorain No. 16CA010986, 2017-Ohio-4214, ¶ 18, quoting State v.

Petro, 148 Ohio St. 505 (1947), syllabus.

       {¶10} In support of his motion for leave to file a motion for new trial, Little attached a

copy of a 2006 police report that detailed a separate incident in which Turner was a gunshot

victim. According to the report, Turner arrived at an apartment in Lorain during the early

morning hours of February 14, 2006. A short time after entering the apartment, Turner heard

someone “banging at the back door.” The individual at the door then entered the apartment and

started firing gunshots. Turner ran away from the door and up the stairs. Turner was shot twice

as he attempted to flee, once in the lower back and once in the buttocks. Police responded to the

scene and found Turner on the floor of an upstairs bedroom. Emergency medical personnel

transported Turner to the hospital and he was subsequently air lifted to Akron General. The

gunshots proved not to be fatal. Turner told police that he did not know who shot him.

       {¶11} Little argues that the police report describing the 2006 incident could have been

used to impeach the testimony of Dr. Paul Matus, the Lorain County Coroner, who testified on

behalf of the State at trial. Little stresses that Dr. Matus testified that all three gunshots that

struck Turner during the 2007 incident traveled on a downward trajectory. Dr. Matus further
                                                 4


testified that the downward trajectory would not have been present if both the shooter and the

victim were standing upright. In support of his underlying position, Little contends that the

police report calls Dr. Matus’s testimony into question because the details of the 2006 incident

involving Turner prove that bullets can travel downward when both the shooter and the victim

are standing upright.

         {¶12} Even assuming without deciding that Little was unavoidably prevented from

discovering the police report in question, he has failed to demonstrate that there is a strong

probability that there would be a different result if a new trial was granted. As an initial matter,

the police report provides limited details of what actually transpired during the 2006 incident.

Though Little contends that the police report demonstrates that bullets can travel on a downward

trajectory when both the shooter and victim are standing upright, the report contains very little

discussion about the positioning and location of Turner’s body in relation to the shooter at the

time the shots were fired, other than to indicate that Turner was attempting to flee. Perhaps more

significantly, “[n]ewly discovered evidence that merely contradicts or impeaches former

testimony is not a sufficient basis for granting a motion for a new trial.” State v. Pannell, 9th

Dist. Wayne No. 96CA0009, 1996 WL 515540, *3. The movant must also demonstrate that

there is a strong probability that a different result would be obtained at a new trial. Id. Here,

Little has not articulated how the new evidence would have ultimately changed the outcome of

the trial. The State presented ample evidence of Little’s guilt at trial and he has failed to

demonstrate that there is a strong probability that the result of trial would have been different if

he had the benefit of the police report. See Little, 2011-Ohio-768, ¶ 12-17. Under these

circumstances, the trial court did not abuse its discretion in denying Little’s motion for a new

trial.
                                                 5


       {¶13} Accordingly, Little’s second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN ABUSING ITS DISCRETION DENYING
       APPELLANT’S MOTION FOR NEW TRIAL DUE TO NEWLY
       DISCOVERED EVIDENCE ON GROUNDS THAT THE TRIAL COURT
       ABUSED ITS DISCRETION IN DENYING APPELLANT’S RIGHT TO
       EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL VIOLATING HIS
       RIGHT TO A FAIR TRIAL AS MANDATED BY THE FIFTH, SIXTH AND
       FOURTEENTH AMENDMENTS[.]

                             ASSIGNMENT OF ERROR III

       THE TRIAL COURT ABUSED ITS DISCRETION DENYING APPELLANTS’
       MOTION FOR NEW TRIAL DUE TO NEWLY DISCOVERED EVIDENCE
       ON THE GROUND [THAT THE] TRIAL COURT ABUSED ITS DISCRETION
       DENYING APPELLANT EXPERT ASSISTANCE AT TRIAL VIOLATING
       HIS RIGHT TO DUE PROCESS UNDER THE FOURTEENTH
       AMENDMENT[.]

       {¶14} Little raises additional challenges to the trial court’s denial of his motion for a

new trial. In his first assignment of error, Little contends that trial counsel rendered ineffective

assistance. In his third assignment of error, Little contends that he was prejudiced when the trial

court denied his pretrial motion to retain an expert witness. “Under the doctrine of res judicata,

any issue that was or should have been litigated in a prior action between the parties may not be

relitigated.” State v. Zhao, 9th Dist. Lorain No. 03CA008386, 2004-Ohio-3245, ¶ 7, quoting

State v. Meek, 9th Dist. Lorain No. 03CA008315, 2004-Ohio-1981, ¶ 9. The issues Little raises

in his first and third assignments of error could have been raised on direct appeal. As such, he is

now barred from relitigating those issues in a subsequent proceeding. Zhao at ¶ 7.

       {¶15} The first and third assignments of error are overruled.

                                                III.

       {¶16} Little’s assignments of error are overruled. The judgment of the Lorain County

Court of Common Pleas is affirmed.
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                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT



SCHAFER, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

TERRY LITTLE, pro se, Appellant.

DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting
Attorney, for Appellee.
