[Cite as State v. Tucker, 2013-Ohio-2882.]



                            IN THE COURT OF APPEALS
                   FIRST APPELLATE DISTRICT OF OHIO
                             HAMILTON COUNTY, OHIO




STATE OF OHIO,                               :        APPEAL NO. C-120446
                                                     TRIAL NO. 07CRB-12810A
          Plaintiff-Appellee,                :
                                                           O P I N I O N.
        vs.                                  :

MICHAEL L. TUCKER,                           :

          Defendant-Appellant.               :



Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 3, 2013




John P. Curp, City of Cincinnati Solicitor, Charles A. Rubenstein, City Prosecutor,
and Lauren M. Yanovsky, Assistant City Prosecutor, for Plaintiff-Appellee,

Robert R. Hastings, Law Office of the Hamilton County Public Defender, for
Defendant-Appellant.




Please note: we have removed this case from the accelerated calendar.
                   OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.

       {¶1}   Defendant-appellant Michael L. Tucker appeals from the Hamilton

County Municipal Court’s judgment overruling his motion for a new trial. We affirm

the court’s judgment.

       {¶2}   On the evening of April 12, 2007, Tucker was stopped by two

uniformed city police officers who were responding to a radio broadcast concerning

the armed robbery of a pizza-delivery driver by three men. For his conduct during

this encounter, Tucker was charged by complaint with the misdemeanors of

aggravated menacing and obstructing official business and the felonies of carrying a

concealed weapon and having weapons while under a disability. The municipal court

transferred those charges to its suspended docket after a Hamilton County Grand

Jury returned an indictment charging Tucker, for the same conduct, with three

felonies: two counts of carrying concealed weapons and a single count of tampering

with evidence.

       {¶3}   In December 2007, the Hamilton County Common Pleas Court

convicted Tucker upon his guilty pleas to tampering with evidence and a single count

of carrying concealed weapons. From those convictions, Tucker took no appeal.

       {¶4}   In August 2008, the municipal court tried and convicted Tucker on the

misdemeanor charges of aggravated menacing and obstructing official business.

Tucker unsuccessfully challenged his aggravated-menacing conviction in his direct

appeal to this court, State v. Tucker, 1st Dist. No. C-080285 (Mar. 8, 2009), and in a

Crim.R. 33 motion for a new trial, filed with the municipal court in 2012.

       {¶5}   In this appeal, Tucker advances a single assignment of error

challenging the municipal court’s judgment overruling his new-trial motion. The

challenge is untenable.



                                          2
                    OHIO FIRST DISTRICT COURT OF APPEALS



                                         The Trial

       {¶6}    The municipal court convicted Tucker of aggravated menacing and

obstructing official business upon testimony by one of the uniformed officers who

had stopped Tucker and by a police officer who had participated in an internal

investigation into their encounter.

       {¶7}    Officer Laboy. Officer Jose Laboy testified at trial that he had

observed Tucker, who matched the description of the robbers, walking in the vicinity

of the robbery. Officer Laboy instructed his partner, Officer Stephanie Ball, to stop

their cruiser in Tucker’s path. The officers stepped out of the cruiser, and Officer

Laboy drew his gun. Tucker ignored Officer Ball’s orders to stop, and continued

walking toward Officer Ball’s side of the cruiser, until Officer Laboy ordered him to

stop. Tucker also ignored Officer Ball’s initial command to turn around. According

to Officer Laboy, when Officer Ball repeated her command, Tucker, who was wearing

a hooded sweatshirt, began “turning,” and then, with his right hand, “reached * * * in

his hood, and [pulled] a gun from his hood.” Officer Laboy ordered Tucker to “stop.”

Tucker “didn’t stop”; instead, “[h]e br[ought] the gun completely to the front of his

body * * * and at that time [Officer Laboy made] a decision to shoot him, to stop his

threat.” The officer shot toward Tucker’s “center mass.” And Tucker ran.

       {¶8}    The officers pursued Tucker on foot. Officer Laboy kept his gun out

and looked for a trail of blood, “because I know he’s armed,” and “I know I sh[ot]. At

that time I don’t know if I hit him.”

       {¶9}    While the officers were chasing Tucker, a police sergeant broadcast an

inquiry concerning the gunshot. Officer Laboy tried unsuccessfully to broadcast that

he had been the shooter. The officers abandoned their pursuit of Tucker, returned to

their cruiser, and, according to Officer Laboy, engaged in the following exchange:



                                          3
                    OHIO FIRST DISTRICT COURT OF APPEALS



       Officer Ball asked me * * *, “Did you shoot your firearm?” I said, “Yes,

       I did. Did you see him with the gun?” She said, “No, I didn’t see the

       gun.” I said, “Did you * * * hear my noise, my gun was making noise?”

       She said, “No.”

The sergeant then separated the officers.

       {¶10} Other officers soon apprehended Tucker and brought him to Officer

Laboy, who identified him. Officers Laboy and Ball were then separately transported

to headquarters for an investigation into the shooting.

       {¶11} Internal-investigation officer. The next day, a handgun was

recovered during a search of the area of the shooting. A police officer conducting the

investigation into the shooting questioned Tucker about the incident. The officer

testified at trial that Tucker had stated that Officers Laboy and Ball had stopped him

as he was leaving a neighborhood market. Tucker admitted that he had possessed a

handgun. But he insisted that the gun had been, and had remained, tucked in the

waistband of his pants until he had thrown it away while fleeing from the officers.

Tucker explained to the investigating officer that he had run and disposed of the gun,

because he had not wanted the officers to find the gun in his possession.

       {¶12} Tucker.        Tucker also testified at trial. He stated that, as he was

leaving the market, a car had approached, and two police officers had jumped out of

the car, with weapons drawn. Tucker held a lit cigarette in his right hand and a cell

phone in his left hand, and he had a pistol tucked into his belt. When the officers

ordered Tucker to stop, he tossed the cigarette and raised his hands, but then turned

and ran, disposing of the gun in the process. As he ran, he heard a gunshot. He did

not, he insisted, have his gun in the hood of his sweatshirt or show his gun to, or

point the gun at, the officers.



                                            4
                    OHIO FIRST DISTRICT COURT OF APPEALS



                                        The Motion

       {¶13} Although Tucker styled his motion “Motion for New Trial,” the motion

may fairly be read to seek both leave to file a new-trial motion, pursuant to Crim.R.

33(B), and a new trial on the ground of newly discovered evidence, pursuant to Crim.

R. 33(A)(6). He supported his motion with “newly discovered evidence” in the form of

a transcript of Officer Ball’s April 13, 2007 “Statement” concerning the April 12 “Police

Intervention of Michael Tucker” and a transcription of the video recorded on April 12

by the officers’ cruiser’s “MVR.”

       {¶14} Officer Ball’s statement. Officer Ball’s statement reflected her

answers to questions posed during the internal investigation into the events of the

previous evening. Officer Ball confirmed that she and Officer Laboy had stopped

Tucker because he matched the description of the robbery suspects. According to

Officer Ball, Tucker “automatically” raised his hands up to his head when he realized

he was being stopped by the police. Officer Ball observed a lit cigarette in Tucker’s

right hand, but saw nothing in his left hand. Tucker complied with Officer Ball’s

order to turn around, but he was slow to comply with her order to interlace his

fingers behind his head. As Tucker slowly moved his hands toward his head, Officer

Ball “heard a gunshot coming from [her] right side,” and Tucker ran. Officer Ball did

not see who had fired the shot, but she “believe[d]” that it had been fired by Officer

Laboy. Officer Ball then drew her gun, and the officers pursued Tucker until they

received their sergeant’s radio broadcast inquiring into the gunshot. Officer Ball

stated that she had responded to the broadcast after asking Officer Laboy to confirm

her belief that he had discharged his weapon: “I asked * * * did you shoot? And he

said yeah. And I said are you okay? And he said yeah, and that was the extent of our




                                           5
                    OHIO FIRST DISTRICT COURT OF APPEALS



conversation.”    Officer Ball then broadcast that information and returned with

Officer Laboy to their cruiser.

       {¶15} MVR.         The MVR transcript reflects communications between

unidentified police officers during and after Tucker’s encounter with Officers Laboy

and Ball. An officer stated, “[W]e have one running on Oliver Talbert.” Another

officer responded, “I don’t know where he went. He ran. He ran away from us.”

Another officer broadcast a description of the runner. Another officer then reported

that “[t]here was also a gunshot there before they started chasing him. Be advised.”

And still another officer reported and confirmed that “[t]he gunshot came from my

partner.”

       {¶16} Tucker also supported his motion with the affidavit of defense counsel

who had represented him both on his guilty pleas to the felony charges in the common

pleas court and in the trial before the municipal court on the misdemeanor charges.

Counsel averred that he had, in Tucker’s “misdemeanor case[,] * * * asked the State if

there were any MVRs pertinent to [the] case,” and that he “[had] not [been] told of

the existence of any MVRs * * * [or] an Internal Affairs Statement of Officer

Stephanie Ball, with exculpatory material, at any point during the pendency of either

matter.”

       {¶17} And Tucker offered copies of the defense’s discovery demand, along with

the state’s initial and supplemental responses to that demand, filed in his common-

pleas-court case. In its responses, the state listed Officer Ball as a witness and asserted

that it was “unaware of evidence favorable to the Defendant.” Counsel did not file a

discovery demand in Tucker’s municipal-court case.

       {¶18} Tucker asserted in his motion that Officer Ball’s statement and the MVR

constituted newly discovered evidence that he had been unavoidably prevented from



                                            6
                    OHIO FIRST DISTRICT COURT OF APPEALS



discovering until April 2012, when he received the evidence in response to his public-

records request. He argued that the evidence was exculpatory on the charge of

aggravated menacing, because it confirmed his trial testimony concerning the events

of April 12 and contradicted Officer Laboy’s testimony that Tucker had drawn or

displayed his gun. And he argued that he had been denied a fair trial by the state’s

violation of its duty to disclose exculpatory evidence.

                  No Abuse of Discretion in Denying a New Trial

       {¶19} Crim.R. 33(A)(6) permits a trial court to grant a new trial on the ground

that “new evidence material to the defense [has been] discovered, which the defendant

could not with reasonable diligence have discovered and produced at trial.” The rule

requires that the motion be filed either within 120 days of the return of the verdict or

within seven days after the trial court, upon “clear and convincing proof that the

defendant [had been] unavoidably prevented from discovering the evidence” within

the 120-day period, grants leave to file a new-trial motion out of time. Crim.R. 33(B).

       {¶20} To prevail on a Crim.R. 33(B) motion for leave to file a motion for a

new trial on the ground of newly discovered evidence, the movant must prove by

clear and convincing evidence that, within 120 days of the return of the verdict, he

did not know that the proposed ground for a new trial existed, and that he could not,

“in the exercise of reasonable diligence,” have learned of its existence. State v.

Walden, 19 Ohio App.3d 141, 146, 483 N.E.2d 859 (10th Dist.1984) (quoted in State

v. Mathis, 134 Ohio App.3d 77, 79, 730 N.E.2d 410 [1st Dist.1999], overruled in part

on other grounds, State v. Condon, 157 Ohio App.3d 26, 2004-Ohio-2031, 808

N.E.2d 912, ¶ 20 [1st Dist.]). In reviewing the trial court’s decision on the motion,

the reviewing court may not substitute its judgment for that of the trial court and

must sustain the trial court’s decision if it is supported by competent and credible



                                           7
                     OHIO FIRST DISTRICT COURT OF APPEALS



evidence. See State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990); Mathis

at 79.

         {¶21} To prevail on a Crim.R. 33(A)(6) motion for a new trial on the ground

of newly discovered evidence, the movant must demonstrate 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, 76 N.E.2d 370

(1947), syllabus. A new-trial motion is directed to the sound discretion of the trial

court, and the court’s decision will not be reversed on appeal in an absence of an

abuse of that discretion. See State v. Williams, 43 Ohio St.2d 88, 330 N.E.2d 891

(1975), paragraph two of the syllabus.

         {¶22} The municipal court “denied” Tucker’s motion after hearing

arguments. The court did not specify whether it was denying relief in the form of a

new trial or in the form of leave to seek a new trial. Nor did the court elaborate on

the basis for its decision to deny relief.

         {¶23} But the effect of the court’s entry was to deny Tucker a new trial. And

on the record before us, we cannot say that the court abused its discretion in doing

so.

         {¶24} The fair-trial guarantee of the Due Process Clause of the Fourteenth

Amendment to the United States Constitution imposes upon the state a duty to disclose

to a criminal accused evidence material to his guilt or innocence. Brady v. Maryland,

373 U.S. 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The duty extends to “any favorable




                                             8
                     OHIO FIRST DISTRICT COURT OF APPEALS



evidence known to the others acting on the government’s behalf in the case, including

the police.” Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

       {¶25} The municipal court tried Tucker upon a complaint charging him with

aggravated menacing in violation of R.C. 2903.21, for “pointing a firearm at [Officer

Laboy].” The MVR contains no suggestion that Tucker had, during his encounter with

Officer Laboy, displayed or brandished a firearm. And Officer Ball, in her statement,

related her observation of only a lit cigarette in Tucker’s right hand and nothing in his

left hand. Thus, the evidence offered by Tucker in support of his Brady claim, to the

extent that it negates the allegation that Tucker pointed a gun at Officer Laboy, may

fairly be said to be evidence probative of Tucker’s innocence of the aggravated-

menacing charge.

       {¶26} But the Due Process Clause is not implicated when exculpatory evidence

is disclosed during trial, State v. Wickline, 50 Ohio St.3d 114, 116, 552 N.E.2d 913

(1990), as long as the evidence is disclosed “in time for its effective use at trial,” United

States v. Smith Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir.1985), and the

timing of the disclosure does not otherwise “significantly impair[] the fairness of the

trial.” State v. Iacona, 93 Ohio St.3d 83, 100, 752 N.E.2d 937 (2001). Officer Laboy

effectively disclosed at trial the exculpatory evidence provided in Officer Ball’s

statement and the MVR, when he testified that he had asked Officer Ball, “Did you see

him with the gun,” and that she had responded, “No, I didn’t see the gun.” If the

defense was surprised by this disclosure, it was then incumbent upon defense counsel

to request sanctions for nondisclosure or a continuance to further inquire into the

matter. Counsel did not. Nor did counsel pursue the matter on cross-examination of

Officer Laboy. Thus, because the favorable evidence was disclosed at trial, and the

record will not permit a conclusion that the timing of the disclosure significantly



                                             9
                    OHIO FIRST DISTRICT COURT OF APPEALS



impaired the fairness of his trial, Tucker cannot be said to have been denied due

process.

       {¶27} In turn, a Crim.R. 33(A)(6) motion for a new trial on the ground of newly

discovered evidence must be predicated upon “new evidence material to the defense”

that “has been discovered since the trial.” Petro, 148 Ohio St. 505, 76 N.E.2d 370, at

syllabus. Because the exculpatory evidence contained in Officer Ball’s statement and

suggested by the MVR—that Officer Ball did not see Tucker with a gun—was disclosed

by Officer Laboy at trial, we cannot say that the municipal court abused its discretion in

denying Tucker a new trial.

       {¶28} We, therefore, overrule the assignment of error and affirm the judgment

of the municipal court.

                                                                    Judgment affirmed.

HENDON, P.J., HILDEBRANDT and FISCHER, JJ.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




                                           10
