[Cite as State v. Hatton, 2014-Ohio-3601.]
                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                      PICKAWAY COUNTY

STATE OF OHIO,                                         :

        Plaintiff-Appellee,                            :   Case No. 13CA26

        vs.                                            :

MARTIN L. HATTON,                                      :   DECISION AND JUDGMENT ENTRY


        Defendant-Appellant.                           :

_________________________________________________________________
                                APPEARANCES:

COUNSEL FOR APPELLANT:                       Christopher J. Pagan, 1501 First Avenue, Middletown,
                                             Ohio 45044

COUNSEL FOR APPELLEE:     Judy C. Wolford, Pickaway County Prosecuting Attorney,
                          and Jayme Hartley Fountain, Pickaway County Assistant
                          Prosecuting Attorney, 203 South Scioto Street, P.O. Box
                          910, Circleville, Ohio 43113
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 8-14-14
ABELE, P.J.

        {¶ 1} This is an appeal from a Pickaway County Common Pleas Court judgment that

denied a motion for a new trial filed by Martin L. Hatton, defendant below and appellee herein.

        {¶ 2} Appellant assigns the following error for review:

                 “THE TRIAL COURT ERRED IN OVERRULING HATTON’S
                 MOTION FOR A NEW TRIAL.”

        {¶ 3} In 1997, two men raped a seventeen-year-old girl in her home. The girl’s father

captured Ricky Dunn as he attempted to flee the home, and Dunn immediately implicated

appellant. At appellant’s trial, Dunn testified for the prosecution. Dunn stated that as he
PICKAWAY, 13CA26                                                                                   2

attempted to escape the residence, he ran into the homeowner, the victim’s father, and yelled,

“Marty, Marty, Marty!” The victim’s father asked Dunn who Marty is, and Dunn stated, “I don’t

know why I am here. I came with Marty Hatton.”

       {¶ 4} Law enforcement officers later arrived and observed the victim’s father standing

over Dunn, who was laying on the floor and yelling, “Where’s Marty?” Dunn stated several times

that he had been at the residence with “Marty” and later explained that it was “Marty Hatton.”

       {¶ 5} After hearing additional evidence, the jury found appellant guilty of aggravated

burglary, felonious assault, rape, and theft. In 1999, we affirmed appellant’s conviction. State v.

Hatton, 4th Dist. Pickaway No. 97CA34 (Apr. 19, 1999). Appellant later filed several other

post-trial motions and appeals. State v. Hatton, 4th Dist. Pickaway No. 11CA23, 2013-Ohio-475;

State v. Hatton, 4th Dist. Pickaway No. 11CA21, 2012-Ohio-2019; State v. Hatton, 4th Dist.

Pickaway No. 09CA4, 2010-Ohio-1245; State v. Hatton, 4th Dist. Pickaway No. 06CA35,

2007-Ohio-3725; State v. Hatton, 4th Dist. Pickaway No. 05CA38, 2006-Ohio-5121; State v.

Hatton, 4th Dist. Pickaway No. 00CA10 (Aug. 4, 2000).

       {¶ 6} On March 13, 2013, appellant filed a Crim.R. 33(A)(6) motion for a new trial and

requested an evidentiary hearing. Appellant asserted that Dunn recently recanted his trial

testimony identifying appellant as one of the perpetrators and that this new evidence warranted a

new trial. Appellant attached to his motion a five-paragraph affidavit that Dunn signed. In it,

Dunn stated that he “gave false statements inregards [sic] to Martin Hattons [sic] involvement due

to being cohersed [sic] and threatend [sic].” Dunn averred that appellant “had no involvement

what so ever in the crimes” and that “Jeff Massie * * * took us to the residense [sic] that evening.”

 Dunn further stated: “It is also false testimony that [I] was yelling for anyone that evening.”
PICKAWAY, 13CA26                                                                                     3

       {¶ 7} On October 28, 2013, the trial court denied appellant’s new trial motion without

holding an evidentiary hearing. The court found that appellant failed to show that “the

newly-discovered evidence discloses a strong probability that it will change the result if a new trial

is granted, and also that the newly-discovered evidence is not being submitted for the sole purpose

of impeaching or contradicting the former testimony of co-defendant, Ricky Dunn.” The court

found that Dunn’s recanted testimony “is highly suspicious given the long history of these two

cases. While the co-defendant has changed his testimony and purportedly admits that he

committed perjury, [appellant] wants this Court to ignore all the other trial testimony and evidence

presented at [appellant]’s jury trial.” The court explained:

               “This Court presided over [appellant]’s trial and had the opportunity to
       observe first-hand all of the witness[es’] testimony and demeanor. This Court has,
       once again, very thoroughly reviewed Mr. Hatton’s case and all the evidence
       contained therein, including the evidence submitted with [appellant]’s Motion for a
       New Trial, and finds that the recantation of Ricky Dunn’s testimony is not
       credible.”
This appeal followed.

       {¶ 8} In his sole assignment of error, appellant asserts that the trial court erred by

overruling his Crim.R. 33(A)(6) new trial motion without holding an evidentiary hearing.

Appellant contends that the trial court should have held a hearing to ascertain the credibility of

Dunn’s recanted testimony.

       {¶ 9} A trial court possesses broad discretion when determining whether to grant a

Crim.R. 33(A)(6) new trial motion. State v. Stewart, 4th Dist. Washington No. 02CA29,

2003-Ohio-4850, ¶10; accord State v. Williams, 43 Ohio St.2d 88, 330 N.E.2d 891 (1975),

paragraph two of the syllabus; Domanski v. Woda, 132 Ohio St. 208, 6 N.E.2d 601 (1937),

paragraph two of the syllabus; Bedford v. Edwards, 8th Dist. Cuyahoga No. 94532, 2011-Ohio-91,
PICKAWAY, 13CA26                                                                                   4

¶9. The court likewise possesses discretion when determining whether a new trial motion

warrants an evidentiary hearing. State v. Remy, 4th Dist. Ross No. 03CA2731, 2004-Ohio-3630,

¶79; Stewart; State v. Salinas, 10th Dist. Franklin No. 09AP-1201, 2010-Ohio-4738, ¶49.

Consequently, we will not reverse a trial court’s decision denying a Crim.R. 33(A)(6) new trial

motion without holding an evidentiary hearing unless the court abused its discretion. Remy. An

“abuse of discretion” means that the court acted in an “‘unreasonable, arbitrary, or

unconscionable’” manner or employed “‘a view or action that no conscientious judge could

honestly have taken.’” State v. Kirkland, — Ohio St.3d —, 2014-Ohio-1966, — N.E.3d —, ¶67,

quoting State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶23. Moreover, a

trial court generally abuses its discretion when it fails to engage in a “‘sound reasoning process.’”

State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶14, quoting AAAA Ents.,

Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d

597 (1990). Additionally, “[a]buse-of-discretion review is deferential and does not permit an

appellate court to simply substitute its judgment for that of the trial court.” State v. Darmond, 135

Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶34.

       {¶ 10} Crim.R. 33(A)(6) permits a trial court to grant a new trial “[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.” However, trial courts, should subject Crim.R. 33(A)(6) new

trial motions to the closest scrutiny:

               “‘Applications for new trials on the ground of newly discovered evidence
       are not, however, favored by the courts, for the reason that the moving party has
       generally had ample opportunity to prepare his case carefully and to secure all of the
       evidence before the trial. Such applications, whether in a court of law or in a court
       of equity, are entertained with reluctance and granted with caution, not only because
PICKAWAY, 13CA26                                                                                     5

          of the danger of perjury, but also because of the manifest injustice in allowing a
          party to allege that which may be the consequence of his own neglect in order to
          defeat an adverse verdict. In order to prevent, as far as possible, the fraud and
          imposition which defeated parties may be tempted to practice as a last resort to
          escape the consequence of an adverse verdict, an application setting up the
          discovery of new evidence should always be subjected to the closest scrutiny by the
          court. The applicant is required to rebut the presumption that the verdict is correct
          and that there has been a lack of due diligence and to establish other facts essential
          to warrant the granting of a new trial upon the ground of newly discovered
          evidence. The rule to be deduced from the cases is that where newly discovered
          evidence is of such conclusive nature, or of such decisive or preponderating
          character, that it would with reasonable certainty have changed the verdict or
          materially reduced the recovery, a new trial should be granted if it is satisfactorily
          shown why the evidence was not discovered and produced at the time of the trial.’”

Taylor v. Ross, 150 Ohio St. 448, 450-51, 83 N.E.2d 222, 224 (1948), quoting 39 American

Jurisprudence, 163, Section 156; accord Domanski v. Woda, 132 Ohio St. 208, 6 N.E.2d 601

(1937).

          {¶ 11} Thus, before a trial court may grant a new trial based upon newly discovered

evidence, a defendant must demonstrate the following:

          “[T]he 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; accord State v. Anderson, 10th

Dist. Franklin No. 13AP-831, 2014-Ohio-1849, ¶9; State v. Nichols, 4th Dist. Adams No.

11CA912, 2012-Ohio-1608, ¶61; State v. Perotti, 4th Dist. Scioto No. 99CA2672 (Feb. 5, 2001).

          {¶ 12} “[N]ewly discovered evidence which purportedly recants testimony given at trial is

‘looked upon with the utmost suspicion.’” State v. Germany, 8th Dist. Cuyahoga No. 63568 (Sept.

30, 1993), quoting United States v. Lewis, 338 F.2d 137, 139 (C.A.6, 1964); State v. Nash, 8th
PICKAWAY, 13CA26                                                                                       6

Dist. Cuyahoga No. 87635, 2006-Ohio-5925, ¶10; State v. Callihan, 4th Dist. Scioto No.

01CA2815, 2002-Ohio-5878, ¶17. “Recanting affidavits and witnesses are viewed with extreme

suspicion because the witness, by making contradictory statements, either lied at trial, or in the

current testimony, or both times.” State v. Gray, 8th Dist. No. 92646, 2010-Ohio-11, 2010 WL

27872, ¶29, citing State v. Jones, 10th Dist. No. 06AP–62, 2006-Ohio-5953, 2006 WL 3240659,

¶25, and United States v. Earles (N.D.Iowa, 1997), 983 F.Supp. 1236, 1248. Consequently,

“’there must be some compelling reason to accept a recantation over testimony given at trial.’”

State v. Brown, 186 Ohio App.3d 309, 2010-Ohio-405, 927 N.E.2d 1133, ¶20 (7th Dist.), quoting

State v. Fortson, 8th Dist. Cuyahoga No. 82545, 2003–Ohio–5387, ¶13; accord State v. Moore, 7th

Dist. Mahoning No. 13MA9, 2014-Ohio-358, ¶25. A trial court should grant a new trial motion

based upon recanted testimony “only where the court is reasonably well satisfied that the testimony

given by a material witness is false.” State v. Germany, 8th Dist. Cuyahoga No. 63568 (Sept. 30,

1993) (citation omitted).



        {¶ 13} Thus, a defendant is not necessarily entitled to a new trial when a witness submits

an affidavit recanting trial testimony. State v. Perdue, 7th Dist. Mahoning No. 04MA119,

2005-Ohio-2703, ¶19; State v. Monk, 5th Dist. Knox No. 03CA12, 2003-Ohio-6799, ¶19; State v.

Gray, 8th Dist. Cuyahoga No. 82841, 2003-Ohio-6643, ¶10; State v. Curnutt, 84 Ohio App. 101,

110, 84 N.E.2d 230 (1948). Instead, when a defendant seeks a new trial based upon a witness’s

recanted testimony, the trial court must evaluate the credibility of the recanting witness. Toledo v.

Easterling, 26 Ohio App.3d 59, 60, 498 N.E.2d 198 (1985). The court must determine whether

the recanting witness told the truth at trial or if the witness’s recantation is true. Id. “‘If the trial
PICKAWAY, 13CA26                                                                                    7

court determines the recantation is believable, the trial court must then determine whether the

recanted testimony would have materially affected the outcome of trial.’” Brown at ¶46, quoting

Perdue at ¶18. Additionally, a trial court need not necessarily hold a hearing to ascertain the

credibility of the recanted affidavit testimony. State v. Brooks, 8th Dist. Cuyahoga No. 75522

(Aug. 5, 1999) (stating that a trial court need not hold a hearing to consider a new trial motion

simply because a witness recants or admits to giving perjured testimony); see State v. Hill, 64 Ohio

St.3d 313, 333, 595 N.E.2d 884 (1992) (concluding that trial court did not abuse its discretion by

overruling new trial motion without holding evidentiary hearing to consider credibility of recanting

witness). Rather, “‘the acumen gained by the trial judge who presided during the entire course of

[the] proceedings makes him well qualified to rule on the motion for a new trial on the basis of the

affidavit and makes a time consuming hearing unnecessary.’” State v. Monk, 5th Dist. Knox No.

03CA12, 2003-Ohio-6799, ¶20, quoting United States v. Curry, 497 F.2d 99, 101 (C.A.5, 1974).

       “‘The trial judge is in a peculiarly advantageous position * * * to pass upon the
       showing made for a new trial. [The judge] has the benefit of observing the witnesses
       at the time of the trial, is able to appraise the variable weight to be given to their
       subsequent affidavits, and can often discern and assay the incidents, the influences,
       and the motives that prompted the recantation. [The judge] is, therefore, best
       qualified to determine what credence or consideration should be given to the
       retraction, and [the judge’s] opinion is accordingly entitled to great weight. If the
       rule were otherwise, the right of new trial would depend on the vagaries and
       vacillations of witnesses rather than upon a soundly exercised discretion of the trial
       court.’”

Taylor, 150 Ohio St. at 452, quoting State v. Wynn, 178 Wash. 287, 34 P.2d 900, 901; see State v.

Gray, 8th Dist. No. 92646, 2010-Ohio-11, 30 (determining that the trial court did not abuse its

discretion by discrediting an affidavit from a witness who recanted his trial testimony implicating

the defendant when “the same trial judge who presided over the trial has also presided over the
PICKAWAY, 13CA26                                                                                    8

lengthy procedural history that has ensued”).

       {¶ 14} After our review of the case at bar, we are unable to conclude that the trial court

abused its discretion by overruling appellant’s new trial motion. The record does not reveal that

the court failed to engage in a sound reasoning process. Instead, the record demonstrates the

opposite. The court explained its rationale for discrediting Dunn’s affidavit and for overruling

appellant’s motion without holding an evidentiary hearing. The trial judge observed that he had

“presided over [appellant]’s trial and had the opportunity to observe first-hand all of the witness’s

testimony and demeanor.” The trial judge stated that he had “once again, very thoroughly

reviewed [appellant]’s case and all the evidence contained therein, including the evidence

submitted with [appellant]’s Motion for a New Trial, and finds that the recantation of Ricky

Dunn’s testimony is not credible.” In view of the fact that the trial court presided over appellant’s

trial and previously heard Dunn’s trial testimony that implicated appellant, the court rationally

could have determined Dunn told the truth at trial and that Dunn’s recanted testimony is highly

suspicious and not worthy of belief. See State v. Bell, 4th Dist. Scioto No. 1408 (Mar. 18, 1983)

(recognizing that trial judge who presided over defendant’s criminal trial was “exceptionally well

qualified” to ascertain credibility of recanting witness’s affidavit). We find nothing about the

court’s rationale unreasonable, unconscionable or arbitrary, nor does it represent a view or action

that no conscientious judge could have honestly taken. Rather, we believe that the trial court

properly exercised its discretion when it reviewed appellant’s new trial motion, including Dunn’s

affidavit, and when it overruled the motion without holding an evidentiary hearing to consider the

credibility of Dunn’s recanted testimony.

       {¶ 15} Additionally, the same trial judge who presided over appellant’s criminal trial also
PICKAWAY, 13CA26                                                                                     9

presided over Dunn’s criminal trial arising out of the same incident. Thus, the trial judge is

obviously familiar with Dunn and has had multiple opportunities to view his demeanor and form

an opinion regarding Dunn’s credibility.

       {¶ 16} Furthermore, we do not believe that the three cases appellant cites to support his

argument that the trial court abused its discretion by failing to hold a hearing to consider his new

trial motion require us to reach a different conclusion. Appellant first cites State v. Green, 7th

Dist. Mahoning App. No. 05MA116, 2006-Ohio-3097, to support his argument that the trial court

abused its discretion by overruling his new trial motion without holding an evidentiary hearing. In

Green, the defendant filed a new trial motion after a jury found him guilty of kidnapping and

complicity to murder. The defendant argued that he was entitled to a new trial due, in part, to the

discovery of a new witness to the crimes who stated that the defendant was not involved. The new

witness’s affidavit indicated that she previously informed law enforcement officers that she had not

witnessed any of the criminal acts because she “was too scared to get involved because of all the

threats.” Id. at ¶21. In her affidavit, the witness stated that the defendant was not involved in the

crime and that “she did not admit to knowing what had transpired because she was afraid of what

might happen to her.” Id. at ¶22. The trial court denied the defendant’s motion without holding

an evidentiary hearing to consider the credibility of the new witness.

       {¶ 17} The defendant appealed and asserted that the trial court abused its discretion by

overruling his new trial motion without holding an evidentiary hearing. The appellate court

concluded that the trial court abused its discretion by failing to hold an evidentiary hearing to

consider the defendant’s new trial motion when the defendant offered newly discovered testimony

from an eyewitness that “could arguably establish [the defendant’s] innocence.” Id. at ¶1. The
PICKAWAY, 13CA26                                                                                    10

appellate court noted that the witness’s affidavit directly contradicted the testimony of the

defendant’s co-defendants. The court concluded that because the witness’s “testimony could

potentially establish [the defendant]’s lack of involvement in both the murder and the kidnapping,

the affidavit warrants an evidentiary hearing so that the trial court can listen to the witness testify

and then determine whether she is credible.” Id. at ¶27.

       {¶ 18} Green is distinguishable from the case sub judice. In Green, the newly discovered

evidence did not originate from a co-defendant. By contrast, in the case at bar Dunn, appellant’s

co-defendant, offers the newly discovered evidence. Furthermore, the witness in Green apparently

had not previously testified at the defendant’s trial. Thus, the witness in Green did not recant any

prior testimony. In the case sub judice, by contrast, Dunn did testify at trial and his affidavit

recants his prior testimony. Because the witness in Green had not previously testified or recanted

any prior testimony, the appellate court apparently determined that the trial court lacked any

rational basis to reject her affidavit outright without holding an evidentiary hearing. In the case at

bar, however, Dunn had previously testified before the same judge who reviewed appellant’s new

trial motion. Thus, as we indicated above, the trial court had a rational basis to reject Dunn’s

affidavit without holding an evidentiary hearing to evaluate his credibility. Moreover, the new

witness in Green offered a reason why she had not previously admitted witnessing the crime. In

the case at bar, Dunn offers only a generic claim that he was coerced and threatened to implicate

appellant. Additionally, the new witness in Green apparently did not have a significant connection

to the defendant, while in the case sub judice, appellant and Dunn appear to be friends. It is not

beyond belief that Dunn would seek to recant his testimony to exonerate his friend. Consequently,

we do not find Green applicable to the case sub judice.
[Cite as State v. Hatton, 2014-Ohio-3601.]
        {¶ 19} Appellant next asserts that State v. Fuson, 5th Dist. Knox No. 02CA23,

2002-Ohio-6601, supports his argument that the trial court abused its discretion by overruling his

new trial motion without holding an evidentiary hearing. In Fuson, a jury convicted the defendant

of three counts of raping his daughters. The three daughters testified at trial and their testimony

was the state’s primary evidence to support the defendant’s conviction. The defendant later filed a

new trial motion and attached two of his daughters’ affidavits who stated that “they fabricated the

claims based on pressure and physical abuse from their mother’s boyfriend.” Id. at ¶5. The

daughters stated that their mother’s boyfriend had “beaten and threatened them” and forced them to

make the allegations against the defendant. The trial court overruled the defendant’s new trial

motion without holding an evidentiary hearing and determined that the daughters’ trial testimony

was more credible than the testimony contained in the affidavits. The defendant appealed and

argued that the trial court abused its discretion by overruling his new trial motion without holding

an evidentiary hearing to consider the credibility of the daughters’ recanted testimony.

        {¶ 20} Subsequently, the appellate court determined that the trial court abused its

discretion by overruling the defendant’s new trial motion without holding an evidentiary hearing.

The court explained that the defendant “was convicted primarily on the testimony of [his

daughters]. Thus, the recanted testimony does not merely impeach prior evidence, but if believed,

would prove appellant’s innocence.” Id. at ¶11. The appellate court concluded that the trial court

should have held an evidentiary hearing “in order to more accurately a[ss]ess the credibility of the

witnesses in determining whether the girls were telling the truth at trial or in their recent

recantations of their testimony.” Id. at ¶12.

        {¶ 21} We believe that Fuson is distinguishable from the case at bar. In Fuson, the
PICKAWAY, 13CA26                                                                                  12

recanting witnesses were the victims of the defendant’s crime. In the case at bar, by contrast, the

recanting witness is not a victim of appellant’s crime, but, instead was also implicated in the same

crimes as appellant and appears to be appellant’s friend. Additionally, in Fuson the recanting

witnesses’ trial testimony was the state’s primary evidence used to convict the defendant. In the

case at bar, Dunn’s testimony was not the only evidence that the state used to convict appellant.

See our analyses in State v. Hatton, 4th Dist. Pickaway No. 09CA4, 2010-Ohio-1245; State v.

Hatton, 4th Dist. Pickaway No. 05CA38, 2006-Ohio-5121; State v. Hatton, 4th Dist. Pickaway No.

97CA34 (Apr. 19, 1999).

       {¶ 22} Appellant also relies upon State v. Gaines, 1st Dist. Hamilton No. C-090097,

2010-Ohio-895, to support his argument that the trial court abused its discretion by discrediting

Dunn’s affidavit without holding an evidentiary hearing. In Gaines, the defendant stood trial for

murder. At trial, the victim’s half-brother, Brandon Mincy, “provided the only eyewitness account

of the murder,” and implicated the defendant—his cousin. Id. at ¶6. A jury found the defendant

guilty of murder. The defendant later filed a new trial motion and offered an affidavit from a

newly discovered eyewitness, Gregory M. Carter, a bystander to the crime. Carter implicated two

individuals other than the defendant in the victim’s murder. The defendant also offered an

affidavit from Mincy, the principal eyewitness at the criminal trial. In his affidavit, Mincy

recanted his trial testimony and exonerated the defendant.

       {¶ 23} After the trial court overruled the defendant’s new trial motion, the defendant

appealed and argued that the trial court abused its discretion by overruling his motion without

holding an evidentiary hearing to ascertain the credibility of the affidavit testimony. The court of

appeals agreed. In reaching its decision, the appellate court first observed that a trial court may
PICKAWAY, 13CA26                                                                                 13

assess the credibility of affidavit testimony without conducting an evidentiary hearing. The

Gaines court applied the State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999), factors that

the Ohio Supreme Court outlined for trial courts to use when evaluating affidavits submitted in

support of a postconviction relief petition. Id. at ¶25. The Gaines court explained:

               “The Ohio Supreme Court in State v. Calhoun set forth factors for a
       common pleas court to consider in assessing the credibility of affidavits submitted
       in support of, and thus in determining the need for an evidentiary hearing on, an
       R.C. 2953.21 petition for postconviction relief. The common pleas court must
       accord the affidavits ‘due deference.’ But the court ‘may, in the sound exercise of
       discretion, judge their credibility’ and ‘may, under appropriate circumstances * * *,
       deem affidavit testimony to lack credibility without first observing or examining the
       affiant.’ In determining whether, in a ‘so-called paper hearing,’ to ‘accept * * *
       affidavits as true statements of fact,’ or to instead discount their credibility, the
       common pleas court must consider ‘all relevant factors,’ including ‘(1) whether the
       judge reviewing the postconviction relief petition also presided at the trial, (2)
       whether multiple affidavits contain nearly identical language, or otherwise appear to
       have been drafted by the same person, (3) whether the affidavits contain or rely on
       hearsay, (4) whether the affiants are relatives of the petitioner, or otherwise
       interested in the success of the petitioner’s efforts, * * * (5) whether the affidavits
       contradict evidence proffered by the defense at trial,’ (6) whether the affidavits are
       ‘contradicted by’ the trial testimony of the affiants, and (7) whether the affidavits
       are ‘internally inconsistent.’
               The supreme court declared that the Calhoun analysis was ‘supported by
       common sense’ and advanced ‘the interests of eliminating delay and unnecessary
       expense[] and furthering the expeditious administration of justice.’ Those same
       interests would be served by applying the Calhoun factors to assess the credibility of
       affidavits submitted in support of, and thus to determine the need for an evidentiary
       hearing on, a Crim.R. 33(A)(6) new-trial motion. We, therefore, join those
       appellate districts that have adopted the Calhoun analysis for that purpose.”

Id. at ¶¶25-26 (footnotes omitted).

       {¶ 24} The Gaines court then evaluated Carter’s affidavit using the Calhoun factors. The

court determined that Carter’s affidavit could not be discounted and observed that: (1) the same

judge who presided over the defendant’s criminal trial was not the same judge who reviewed the

defendant’s new trial motion; (2) Carter’s affidavit did not appear to have been drafted by the same
PICKAWAY, 13CA26                                                                                  14

person or use identical language to other affidavits; (3) Carter’s affidavit did not rely on hearsay;

(4) “Carter had no apparent interest in [the defendant] securing a new trial;” (5) Carter’s affidavit

“did not conflict in any material respect with the evidence offered by the defense at trial;” and (6)

Carter’s affidavit was internally consistent. Id. at ¶28. The court further observed that Carter’s

account directly contradicted Mincy’s trial testimony regarding the events surrounding the

shooting.

        {¶ 25} The court next reviewed the trial court’s finding that Carter’s affidavit testimony

would not change the result if it granted the defendant a new trial. The trial court determined that

because Carter’s affidavit conflicted with Mincy’s trial testimony that implicated the defendant,

Carter’s testimony would be merely cumulative at a new trial. Id. at ¶¶32-33. The appellate

court, however, disagreed with the trial court’s analysis. The court noted that Carter’s testimony

directly contradicted Mincy’s trial testimony that implicated the defendant and thus was not merely

cumulative. Id. at ¶33. The court thus concluded that the trial court abused its discretion by

determining that Carter’s affidavit testimony did not warrant an evidentiary hearing. The court

also determined that the trial court abused its discretion by discounting Mincy’s credibility without

holding an evidentiary hearing. The court explained:

        “Mincy’s affidavits were internally consistent, they did not conflict in any material
        respect with the evidence offered by the defense at trial, and they conflicted with
        Mincy’s trial testimony only to the extent that they exonerated, rather than
        implicated, [the defendant] in the shooting. * * * Mincy had no apparent interest in
        [the defendant] securing a new trial. Mincy and [the defendant] are cousins, but
        their family relationship was demonstrably strained and was not as strong as
        Mincy’s relationship with [the victim].”

Id. at ¶30.

        {¶ 26} Gaines, like Green and Fuson, is distinguishable from the case at bar. In Gaines,
PICKAWAY, 13CA26                                                                                   15

Carter, a new eyewitness who had not previously testified at trial, offered testimony that

exonerated the defendant. Carter’s affidavit did not recant prior testimony. In the case sub

judice, however, Dunn is not a new eyewitness whose credibility is unknown. Instead, Dunn

testified at appellant’s criminal trial and now recants that testimony to exonerate appellant. Thus,

because Dunn is not a new eyewitness to the criminal acts and because he previously testified at

appellant’s trial, we do not believe Gaines applies in the case at bar and requires the trial court to

hold an evidentiary hearing to ascertain the credibility of Dunn’s recanted testimony.

       {¶ 27} Moreover, in Gaines neither of the witnesses was the defendant’s co-defendant.

Instead, one was a disinterested bystander who had not previously testified at trial and the other the

victim’s half-brother. In the case sub judice, by contrast, Dunn is appellant’s co-defendant.

Additionally, in Gaines, unlike in the case at bar, the trial judge who reviewed the defendant’s new

trial motion did not preside over the defendant’s trial and thus had no opportunity to previously

hear testimony from the victim’s half-brother. In the present case, the same trial judge presided

over appellant’s trial and reviewed his new trial motion. The same trial judge heard Dunn’s trial

testimony and reviewed his recanted affidavit testimony. Thus, unlike the judge in Gaines who

did not preside over the defendant’s trial but did review his new trial motion, the trial judge in the

case sub judice was in a position to ascertain Dunn’s credibility without holding an evidentiary

hearing. Additionally, in Gaines the recanting witness had a stronger familial relation to the

victim than to the defendant and thus arguably did not have an interest in securing a new trial for

the defendant. In the case at bar, however, Dunn and appellant appear to be friends, and Dunn

thus has some interest in securing a new trial for appellant.

       {¶ 28} Although the Gaines court applied the Calhoun factors to evaluate the credibility of
PICKAWAY, 13CA26                                                                                  16

the affidavit testimony, we do not find it necessary to specifically adopt or reject such an analysis

in the case sub judice. Instead, as we explained above, Gaines is factually distinguishable.

Consequently, we do not agree with appellant that Green, Fuson, and Gaines demonstrate that the

trial court in the case sub judice abused its discretion by overruling his new trial motion without

holding an evidentiary hearing to consider the credibility of Dunn’s recanted testimony.



       {¶ 29} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s sole

assignment of error and affirm the trial court’s judgment.

                                                                      JUDGMENT AFFIRMED.
[Cite as State v. Hatton, 2014-Ohio-3601.]
                                             JUDGMENT ENTRY

        It is ordered that the judgment be affirmed and that appellee recover of appellant the costs
herein taxed.

        The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Pickaway County
Common Pleas Court to carry this judgment into execution.

        If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to
allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency
of the proceedings in that court. The stay as herein continued will terminate at the expiration of
the sixty day period.

       The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.

      A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.

        McFarland, J. & Hoover, J.: Concur in Judgment & Opinion

                                                                 For the Court




                                                                 BY:
                                               Peter B. Abele
                                               Presiding Judge


                                         NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
