[Cite as State v. Workman, 2017-Ohio-7364.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              AUGLAIZE COUNTY




STATE OF OHIO,
                                                        CASE NO. 2-17-12
       PLAINTIFF-APPELLEE,

      v.

TIMOTHY SCOTT WORKMAN,                                  OPINION

       DEFENDANT-APPELLANT.



                Appeal from Auglaize County Common Pleas Court
                                Criminal Division
                           Trial Court No. 2014-CR-75

                                    Judgment Affirmed

                           Date of Decision: August 28, 2017



APPEARANCES:

        Timothy Scott Workman, Appellant

        R. Andrew Augsburger for Appellee
Case No. 2-17-12


WILLAMOWSKI, J.

       {¶1} Although originally placed on our accelerated calendar, we have elected

pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a summary judgment entry.

       {¶2} Defendant-appellant Timothy S. Workman (“Workman”) was

convicted of thirty-nine counts of illegal use of a minor in nudity-oriented material

in violation of R.C. 2907.323(A)(1), thirty-nine counts of illegal use of a minor in

nudity-oriented material in violation of R.C. 2907.323(A)(3), and one count of

tampering with evidence in violation of R.C. 2921.12(A)(1). In this appeal, he

challenges the decision of the Court of Common Pleas of Auglaize County for (1)

dismissing his successive petition for postconviction relief and (2) failing to hold an

evidentiary hearing in response to his successive petition for postconviction relief.

For the reasons set forth below, the judgment of the trial court is affirmed.

                           Facts and Procedural History

       {¶3} Two female minors accused Workman of taking nude photographs of

them in a hotel room in Wapakoneta, Ohio, during the months of March and July of

2013. Tr. 382. A police detective set up a sting operation by posing as one of the

minor girls and extending an offer to have another photo shoot at an area hotel. Doc.

103. After Workman registered at the hotel, the police apprehended him. Id. At

the time of his arrest, Workman’s cell phone was seized from his vehicle. Tr. 421.

Further investigation of Workman’s vehicle yielded two secure digital memory



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cards. Tr. 460-461. These memory cards contained nude pictures of the two minors

who had accused Workman. Tr. 479-480.

       {¶4} Both of the female minors who accused Workman testified at his trial

and identified Workman as the person who took the nude pictures of them. Tr. 310,

342, 346, 375. Both girls knew Workman independently of the photo shoots that he

had hosted. Tr. 199-200, 298-299. One of these girls had known Workman for four

to five years before their interactions in the photo shoots and, thus, for some time

before she had identified him at trial. Tr. 298-299. The other girl had known

Workman for a shorter period of time through his work at a local gym. Tr. 199-200.

Further, the girls also identified the photographs he took of them and text messages

about the photo shoots. Tr. 212, 225-228, 231-240, 308, 310, 318-336, 344-345.

The photographs from the memory card were admitted into evidence as were copies

of the text messages that were used to schedule the nude photo shoots in 2013. Ex.

95, 104.

       {¶5} On October 3, 2014, Workman was found guilty of thirty-nine counts

of illegal use of a minor in nudity-oriented material in violation of R.C.

2907.323(A)(1), thirty-nine counts of illegal use of a minor in nudity-oriented

material in violation of R.C. 2907.323(A)(3), and one count of tampering with

evidence in violation of R.C. 2921.12(A)(1). Docs. 202-280. On October 27, 2014,

Workman submitted a motion for a new trial on the grounds that Workman received

ineffective assistance of counsel. Doc. 293. The motion for a new trial was denied.

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Doc. 299. On January 12, 2015, Workman filed a motion requesting a Franks

hearing and then subsequently filed two motions that amended the motion

requesting a Franks hearing on January 21, 2015, and January 29, 2015. Docs. 347,

357, 362. These motions alleged that the warrants issued in this case were based on

false statements made by police. Doc. 347. The trial court denied these motions on

February 15, 2015. Doc. 365.1

        {¶6} On February 4, 2015, he was sentenced to forty years in prison.

Sentencing Hearing Tr. 42. Doc. 368. Workman filed a direct appeal of his

conviction on March 9, 2015. Doc. 381. He challenged the inventory search of his

utility vehicle and his conviction for tampering with evidence. Doc. 424. In this

appeal, Workman did not raise the issues presented in the action now before this

Court. See State v. Workman, 2015-Ohio-5049, 52 N.E.3d 286, ¶ 8 (3d Dist.). After

hearing his appeal, this Court affirmed the decision of the trial court. Id. The

Supreme Court of Ohio did not accept his appeal for review of this Court’s decision.

See State v. Workman, 145 Ohio St.3d 1445, 2016-Ohio-1596, 48 N.E.3d 584.

        {¶7} On April 8, 2015, Workman submitted another motion requesting a

Franks hearing with the trial court that challenged the warrants in this case, claiming

the warrants were issued on the basis of false statements. Doc. 394. This motion

was denied on April 10, 2015. Docs. 402. Workman did not appeal the denial of


1
  These motions were stricken and denied because a friend of Workman was signing and submitting the
motions on Workman’s behalf without a power of attorney document. Doc. 365. The trial court, in denying
these motions, stated that it did not recognize hybrid representation. Id.

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this motion. On September 16, 2015, Workman filed a petition for postconviction

relief. Doc. 414. The arguments in this petition raised ineffective assistance of

counsel claims and questioned whether the State released all relevant evidence to

the Defense. Id. This motion for postconviction relief was denied by the trial court

on February 11, 2016. Doc. 441. On February 16, 2016, Workman filed another

motion requesting a Franks hearing. Doc. 446. This motion alleged that the

warrants issued in this case were based on false statements made by the police. Id.

The trial court denied this motion on February 19, 2016. Docs. 448.

       {¶8} On March 4, 2016, Workman appealed the decision of the trial court to

deny his February 11, 2016 petition for postconviction relief. Docs. 463, 467. On

March 7, 2016, Workman filed a notice of appeal, challenging the trial court’s

decision to deny his February 16, 2016 motion requesting a Franks hearing. Docs.

469, 479. On July 25, 2016, this Court affirmed the trial court’s decision to deny

both of these motions. Doc. 502. On August 11, 2016, Workman filed a motion for

a new trial, claiming “there was accident or surprise, in that the Defendant did not

expect the State to produce or use fraudulent evidence against this defendant.” Doc.

504. On August 12, 2016, Workman submitted a motion for a new trial claiming

that “the State knowingly and intentionally presented fraudulent evidence against

this defendant * * *.” Doc. 512. The trial court denied these motions on October

27, 2016. Doc. 530. Workman did not file an appeal in response to this decision

by the trial court.

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       {¶9} On December 12, 2016, Workman filed a motion for a new trial. Doc.

533.   This motion alleged that newly discovered evidence had surfaced and

requested an evidentiary hearing. Doc. 533. The newly discovered evidence that

this motion purportedly identified was a photograph that was admitted as an exhibit

to trial. Id. Ex. 104-3. This photo captures a fully clothed teenage girl sitting on a

counter in a hotel room. Ex. 104-3. The reflection of the person taking the picture

can be partially seen in the mirror behind the girl. Id. However, the flash from the

camera obscures the face of the person taking the picture, leaving only portions of

his right arm and abdomen visible. Id. Workman’s motion for a new trial was

accompanied by a letter from an alleged expert. Doc. 533. The alleged expert

claimed that the person taking the picture had a tattoo on his arm. Id. Workman

asserted that this demonstrated that he was not the person who took the pictures as

he did not have a tattoo on his right arm. Id.

       {¶10} On January 23, 2017, Workman filed an amendment to his December

12, 2016 motion for a new trial. Doc. 544. This document claimed that the

photograph that was admitted to trial as State’s Exhibit 104-3 was taken on

November 5, 2013, which was after Workman was taken into custody on September

30, 2013. Id. Workman argued that this was new evidence that showed he was not

guilty of the crime for which he was convicted. Id. Affixed to this motion was a

screenshot and a few handwritten notes scrawled on letterhead from PC Solutions.

Id. The screenshot shows the properties of the computer file which contained the

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photograph that is State’s Exhibit 104-3. The properties—or file attributes—show

that this file was created on November 5, 2013. Id. The page with handwritten

notes records the file attributes that were displayed in Windows Photo Viewer. Id.

The name of the person who opened this computer file for Workman at PC Solutions

is listed, but no expert credentials or further identification is included anywhere in

this motion. Id.

       {¶11} In response to these pleadings, the State filed an objection to

defendant’s motion for a new trial on February 17, 2017, arguing that neither

document disclosed any new evidence but only asserted “new interpretations on old

evidence.” Doc. 548. The State first addressed the information alleging that the

photographer in State’s Exhibit 104-3 had a tattoo on his arm. The State pointed

out that Workman’s own expert, Patrick Mains, testified at trial that he could not

conclude that the person taking the photograph in State’s Exhibit 104-3 had a tattoo

on his arm. Id. Rather, Mains testified that this dark area on the photographer’s

arm could be only a shadow. Id. Trial Tr. 900, 902-903.

       {¶12} The State then addressed the allegations that the photograph that was

admitted as State’s Exhibit 104-3 was taken after Workman had been taken into

custody. Doc. 548. On this issue, the State explained that the file attributes, which

were depicted in the screenshots submitted by Workman, were the dates on which

the digital files were created during the course of the investigation not the dates on

which the pictures were taken. Id. The dates presented under the file attributes

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represented the creation of copies of the original images found on Workman’s

phone. Id. The metadata that recorded the time at which these pictures were taken

had been removed from the picture files prior to Workman’s apprehension. Id.

Since the metadata had been removed, the nude pictures and the photograph that

was admitted at trial as State’s Exhibit 104-3 only contained the date on which they

were modified, which was March 14, 2013. Id. Trial Tr. 644-646. The State argued

that this modification date shows that the pictures were on Workman’s phone on

March 14, 2013, and were, thus, on his phone prior to his apprehension. Doc. 548.

On the basis of these arguments, the State urged the trial court to deny Workman’s

petition. Id.

       {¶13} On February 21, 2017, the trial court denied Workman’s motion for a

new trial. Doc. 549. Workman did not file an appeal of the denial of this motion.

On April 10, 2017, Workman submitted another petition for postconviction relief to

the trial court that largely reiterated the arguments of the December 12, 2016 motion

for a new trial and the January 23, 2017 amendment to the motion for a new trial.

Docs. 533, 553. On April 25, 2017, the trial court denied Workman’s successive

petition for postconviction relief on the grounds that res judicata barred

consideration of these issues. Doc. 558. On May 1, 2017, Workman filed a notice

of appeal, challenging the trial court’s decision to deny his April 10, 2017 successive

petition for postconviction relief. Doc. 561. In this appeal, Workman raises the

following two assignments of error.

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                            First Assignment of Error

       The trial court abused its discretion when it dismissed
       Workman’s successive post-conviction petition when the record
       showed that (1) Workman was unavoidably prevented from
       discovery of the facts upon which he relies, and (2) but for the
       constitutional error in his trial, no reasonable factfinder would
       have found Workman guilty.

                           Second Assignment of Error

       The trial court abused its discretion when it failed to hold an
       evidentiary hearing on Workman’s successive post-conviction
       petition when the full balance of the evidence dehors the record,
       set forth sufficient operative facts that demonstrate a substantial
       ground for relief.

Since the subject matter of these two assignments of error is essentially the same,

we will address both of these assignments of error together even though they were

argued under different headings in Workman’s brief.

                      First and Second Assignments of Error

       {¶14} In his first assignment of error, Workman argues that the trial court

erred in dismissing his successive petition for postconviction relief because his case

meets the requirements of R.C. 2953.23. Specifically, he points to a photograph,

which was admitted at trial as State’s Exhibit 104-3. This picture captures a fully

clothed girl sitting on a countertop in a hotel room. The reflection of the person

who is taking the picture can somewhat be seen in the mirror behind the girl.

However, the face of this photographer is obstructed by the flash, leaving only

portions of his abdomen and right arm somewhat visible. Workman claims that two


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new analyses of this image demonstrate that he was not the photographer who was

captured in this image.

       {¶15} The first analysis alleges that the photographer captured in this image

had a tattoo on his right arm. The second analysis claims that the electronic files of

these pictures show that this photograph was taken after he had been apprehended

by the police. Since this is not Workman’s first petition for postconviction relief,

he must establish that this successive petition falls within the exception set forth in

R.C. 2953.23(A)(1). To this end, he first argues that he was unavoidably prevented

from discovering this evidence because he was financially unable to hire a forensic

expert due to his indigent status. He then argues that he has clearly and convincingly

demonstrated that his first trial contained a constitutional error as he would have

been found innocent had this evidence been available during his trial.

       {¶16} On the basis of these arguments, Workman argues, under his second

assignment of error, that the trial court erred by refusing to hold an evidentiary

hearing on his successive petition for postconviction release. He further argues that

the facts contained in the record combined with this new information provides

substantial grounds for relief. He argues that the facts he has pointed to in this

appeal are sufficient to warrant an evidentiary hearing and that the trial court abused

its discretion in failing to hold such a hearing. We do not find these arguments to

be persuasive.



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                                   Legal Standard

       {¶17} “R.C. 2953.21, Ohio’s postconviction-relief statute, provides ‘a

remedy for a collateral attack upon judgments of conviction claimed to be void or

voidable under the United States or the Ohio Constitution.’” State v. Keith, 176

Ohio App.3d 260, 2008-Ohio-741, 891 N.E.2d 1191, ¶ 24 (3d Dist.), quoting State

v. Scott-Hoover, 3d Dist. Crawford No. 3-04-11, 2004-Ohio-4804, ¶ 10. State v.

Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905, 909 (1999) (holding “a

postconviction proceeding is not an appeal of a criminal conviction but, rather, a

collateral civil attack on the judgment.”).        “Postconviction review is not a

constitutional right, but is a collateral civil attack on a judgment that is governed

solely by R.C. 2953.21.” Id. at ¶ 26. State v. Steffen, 70 Ohio St.3d 399, 410, 639

N.E.2d 67, 76 (1994). “A trial court lacks jurisdiction to entertain an untimely or

successive petition for postconviction relief unless the petitioner establishes that one

of the exceptions in R.C. 2953.23(A) applies.” State v. Cunningham, 2016-Ohio-

3106, 65 N.E.3d 307, ¶ 13 (3d Dist.), quoting State v. Chavis, 10th Dist. Franklin

No. 15AP-557, 2015-Ohio-5549, ¶ 14. State v. Greathouse, 2d Dist. Montgomery

No. 24084, 2011-Ohio-4012, ¶ 12; State v. Collins, 4th Dist. Athens No. 06CA40,

2007-Ohio-3558, ¶ 11; State v. Christian, 7th Dist. Mahoning No. 06 MA 167,

2007-Ohio-3336, ¶ 9; State v. Kent, 12th Dist. Preble No. CA2013-05-003, 2013-

Ohio-5090, ¶ 10.



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       {¶18} R.C. 2953.23(A)(1) reads as follows:

       (A) Whether a hearing is or is not held on a petition filed pursuant
       to section 2953.21 of the Revised Code, a court may not entertain
       a petition filed after the expiration of the period prescribed in
       division (A) of that section or a second petition or successive
       petitions for similar relief on behalf of a petitioner unless * * *:

       (1) Both of the following apply:

       (a) Either the petitioner shows that the petitioner was
       unavoidably prevented from discovery of the facts upon which the
       petitioner must rely to present the claim for relief, or, subsequent
       to the period prescribed in division (A)(2) of section 2953.21 of the
       Revised Code or to the filing of an earlier petition, the United
       States Supreme Court recognized a new federal or state right that
       applies retroactively to persons in the petitioner’s situation, and
       the petition asserts a claim based on that right.

       (b) The petitioner shows by clear and convincing evidence that,
       but for constitutional error at trial, no reasonable factfinder
       would have found the petitioner guilty of the offense of which the
       petitioner was convicted or, if the claim challenges a sentence of
       death that, but for constitutional error at the sentencing hearing,
       no reasonable factfinder would have found the petitioner eligible
       for the death sentence.

R.C. 2953.23(A)(1). Thus, unless the defendant alleges a new federal or state right

has been recognized, the defendant must prove (1) that he was unavoidably

prevented from discovery of facts upon which his successive petition for

postconviction relief rests and (2) that he would not have been convicted at trial by

a reasonable factfinder but for the constitutional error.

       {¶19} “A defendant is “unavoidably prevented” from the discovery of facts

if he had no knowledge of the existence of those facts and could not have, in the


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exercise of reasonable diligence, learned of their existence within the time specified

for filing his petition for postconviction relief.” Cunningham, supra, at ¶ 19, citing

State v. Holnapy, 11th Dist. Lake No. 2013–L–002, 2013-Ohio-4307, ¶ 32. “And

the ‘facts’ contemplated by R.C. 2953.23(A)(1)(a) are the historical facts of the

case, which occurred up to and including the time of conviction.” Id., quoting State

v. Ruark, 10th Dist. Franklin No. 15AP-142, 2015-Ohio-3206, ¶ 11.

       {¶20} “[A] postconviction-relief hearing is not merited for claims that were

raised or could have been raised on direct appeal, because those claims are barred

by res judicata.” Keith, supra, at ¶ 24, quoting State v. Yarbrough, 3d Dist. Shelby

No. 17-2000-10, 2001 WL 454683 (Apr. 30, 2001). State v. Reynolds, 79 Ohio

St.3d 158, 161, 679 N.E.2d 1131, 1133 (1997) (holding “that, pursuant to res

judicata, a defendant cannot raise an issue in a motion for postconviction relief if he

or she could have raised the issue on direct appeal.”). “[A] trial court is not required

to hold a hearing on a petitioner’s motion for postconviction relief if the petition,

files and records of the case show that the petitioner is not entitled to relief.” State

v. Schoonover, 3d Dist. Allen No. 1-97-54, 1997 WL 746387, *2 (Dec. 4, 1997).

       [A] trial court’s decision granting or denying a postconviction
       petition filed pursuant to R.C. 2953.21 should be upheld absent
       an abuse of discretion; a reviewing court should not overrule the
       trial court’s finding on a petition for postconviction relief that is
       supported by competent and credible evidence.

State v. Gondor, 112 Ohio App.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. “An

abuse of discretion is more than an error of judgment; rather, it implies that the trial

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court’s decision was unreasonable, arbitrary, or capricious.” Schroeder v. Niese,

2016-Ohio-8397, 78 N.E.3d 339, ¶ 7 (3d Dist.), quoting Heilman v. Heilman, 3d

Dist. Hardin No. 6-12-08, ¶ 14.

                                    Legal Analysis

       {¶21} In this case, the defendant must show (1) that he was unavoidably

prevented from discovering the facts upon which his successive petition for

postconviction relief rests at the time of his first petition for postconviction relief

and (2) that he would not have been found guilty by a reasonable factfinder but for

the constitutional error at his trial. As to the first prong of this test, the defendant

has not directed our attention to a new fact. Rather, Workman has pointed us to a

photograph that was admitted at trial at the request of the State and the Defense. Ex.

104-3. Ex. RRA. Workman then uses this photograph to reargue factual issues that

were already considered and resolved by the finders of fact at the conclusion of his

trial. Trial Tr. 644-646, 667, 900, 902-903.

       {¶22} In the first analysis that appellant points to in his brief, Workman only

directs us to a new opinion from an alleged new expert. While the alleged expert

did sign an affidavit stating his findings, Workman did not submit a curriculum vitae

for this alleged expert. Docs. 533, 553. In this affidavit, this alleged expert claims

that the photographer in State’s Exhibit 104-3 had a tattoo on his right arm. While

Workman presents this as new evidence, he had access to the exact photo that this

alleged expert analyzed before, during, and immediately after trial. Thus, while

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Workman may not have known that this particular opinion could have been rendered

at the time he submitted his first petition for postconviction relief—which was filed

on September 16, 2015—he had actual knowledge of the facts and the evidence—

the photograph admitted at trial—that forms the basis of his successive petition. Ex.

104-3. The letter from the alleged expert did not disclose the discovery of a new

fact but merely renders a different opinion—an opinion that directly contradicts the

statements of the expert witness who the Defense called to testify at trial. Trial Tr.

900, 902-903.

       {¶23} Workman argues that he was unavoidably prevented, by his indigent

status, from discovering this purportedly new fact at the time of his first petition for

postconviction relief.    However, Workman did have an expert examine the

photograph at the time of his trial. Trial Tr. 898-905. The expert hired by the

Defense testified at trial as to the issue of whether the photographer in State’s

Exhibit 104-3 had a tattoo on his right arm. Ex. RRA. Ex. 104-3. Trial Tr. 900,

902-903. Workman’s expert testified that he could not determine that a tattoo was

present on the photographer’s arm and that the dark area on the photographer’s arm

in the picture may only be a shadow. Trial Tr. 900, 902-903. Thus, Workman is

attempting to raise a factual issue that was already considered and resolved at trial.

Discovering an expert who is willing to provide a more favorable opinion to the

Defense is not the same as discovering new facts.



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       {¶24} In the second analysis, Workman directs our attention to the same

photograph and attempts to establish that he was not the photographer captured in

State’s Exhibit 104-3. He claims that a forensic expert was able to determine that

this photograph was taken after the he had been apprehended by the police.

Workman submitted a page-long, handwritten document and a screenshot of the

properties of the digital file containing State’s Exhibit 104-3. Doc. 553. This

document contains the alleged expert’s name but does not list any qualifications,

any experience, or the job title of this alleged expert. Further, this filing did not

include a curriculum vitae for this alleged expert. Id.

       {¶25} This document then lists the name, size, dimensions, and local source

of the computer file that contained State’s Exhibit 104-3. Id. The document then

states that this “file was taken Tuesday, November 5, 2013, 2:28 p.m.”                Id.

However, this document does not disclose the method of analysis, contains no

explanation of the alleged expert’s findings, and cannot be understood without first

reading the argument contained in the appellant’s brief. Id. Further, no affidavit

from this alleged expert was submitted with this filing. Id. Ultimately, the argument

regarding the time at which the picture was taken is not a new fact or new evidence

that Workman was unavoidably prevented from discovering but is rather an

unsubstantiated assertion.

       {¶26} This second analysis also addresses a factual issue that was considered

at trial. The photograph at issue in this appeal was admitted at trial as State’s Exhibit

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104-3. The State had an expert who testified that the metadata had been removed

from this image prior to Workman’s apprehension. Trial Tr. 645. The expert stated

that the exact time at which this picture was taken could not be pinpointed without

the metadata. Id. at 646. The expert, however, was able to examine the file

properties of the pictures on Workman’s memory card. Id. at 643. The file

properties recorded the moment that these pictures were modified on Workman’s

memory card on March 14, 2013 at 8:40 p.m. However, these file properties do not

contain information about these pictures prior to the moment that they were saved

onto Workman’s memory card. Id. at 646. Without the metadata, the State’s expert

could only conclude that the pictures admitted at trial were taken prior to March 14,

2013 and were on his memory card on that date. Id. Thus, the prosecution presented

evidence that the photograph, admitted as State’s Exhibit 104-3, was on Workman’s

memory card prior to his apprehension.

       {¶27} On appeal, Workman claims that he has new evidence that shows the

photograph, admitted as State’s Exhibit 104-3, was taken on November 5, 2013,

which was after he had been taken into custody. However, this alleged expert could

not have pinpointed the exact date that this photo was taken for two key reasons.

First, the metadata had been removed prior to Workman’s apprehension, making it

impossible to determine exactly when this photograph was taken. Second, the

screenshot submitted with Workman’s petition shows that this alleged expert was

examining the file properties of the photograph that was admitted as State’s Exhibit

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104-3. Doc. 548. The date that is shown on the file properties in this screenshot is

not the date on which this photograph was taken. Trial Tr. 661. Rather, these file

properties only show when the digital file that was given to Workman during

discovery was created.2 Doc. 548.3

        {¶28} Both of these issues were discussed at trial. On cross examination, the

Defense asked the State’s expert what information could be gleaned about this

photograph from the file properties in Windows Photo Viewer. Id. at 661. The

expert explained that the file properties in Windows Photo Viewer did not contain

metadata and could not be used to determine when this photograph was taken. Id.

Rather, the file properties in Windows Photo Viewer only show the creation date of

that particular digital file. Id. Further, the expert said that even if the metadata had

not been removed, the information contained in metadata could not have been

viewed by a user in Windows Photo Viewer. Id. The screenshot submitted with

Workman’s successive petition for postconviction relief shows only the properties

of the digital file in Windows. At trial, the State’s expert was questioned on cross

examination as to whether these properties could be used to determine when the



2
  The top of the screenshot shows that the digital file name is “Images sent as discovery.” Doc. 548.
3
  This information does not conflict with the information given at trial regarding the March 14, 2013
modification date that shows Workman had these pictures on his phone prior to his apprehension. The State’s
expert examined the images on Workman’s memory card. Tr. 643-644. The file properties of these images
recorded when the digital files were modified on his memory card. Tr. 643-645, 646. When the police made
a copy of these images to give to Workman during discovery, the file properties of the digital file given to
Workman would record the moment at which that particular file—the copy—was created by the State. Doc.
548. The fact that the file properties in the alleged expert’s screenshot show a date of November 5, 2013,
does not mean that this photograph was taken on November 5, 2013. Id. (Rather, it would mean that the
digital file that was given to Workman during discovery was created by the State on November 5, 2013.)

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picture was taken. Thus, these exact issues were considered at trial. This second

analysis presents no new facts and no new evidence.

       {¶29} Neither of these two analyses directs our attention to new facts that

Workman was unavoidably prevented from discovering, and the arguments in

Workman’s appeal, therefore, fail to satisfy the first prong of R.C. 2953.23(A)(1).

See State v. Babos, 6th Dist. Lake No. L-11-1258, 2013-Ohio-1256, ¶ 14 (holding,

on review of a trial court’s decision to deny a motion for a new trial, that a new trial

will not be granted if the allegedly new evidence is merely evidence that

“impeach[es] or contradict[s] the former evidence.”); State v. Hoover-Moore, 2015-

Ohio-4863, 50 N.E.3d 1010 (10th Dist.), ¶ 18 (holding, on review of a trial court’s

decision to deny a motion for a new trial, that a new expert opinion was merely

cumulative to another expert’s testimony at trial and was not newly discovered

evidence).

       {¶30} Even if the first prong of this test were satisfied, Workman’s petition

still does not meet the requirements of the second prong of R.C. 2953.23(A)(1).

Neither of the analyses that Workman points to on appeal are able to prove that the

person in the photograph—State’s Exhibit 104-3—was not Workman. In the first

analysis, the alleged expert only stated that he believes that the person who is

partially visible in the mirror depicted in the photograph has a tattoo on his right

arm. Workman did not relay a digital copy of this photograph to the alleged expert,

so the alleged expert examined the printed copy of this exhibit as did the jurors in

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Workman’s trial. This alleged expert’s opinion can be believed or disbelieved upon

examination of the photograph. Similarly, the second analysis does not establish a

fact that would overturn Workman’s conviction. The file properties examined by

Workman’s alleged expert cannot establish when the pictures were taken.

Presenting information to the jury that documents when a copy of the pictures taken

from Workman’s memory card was created for discovery would not have changed

the outcome of Workman’s trial.

       {¶31} The other evidence against Workman is overwhelming. Workman

was caught in a sting operation that was tailored to this specific case. Workman

was in possession of the previously taken nude pictures of these two minors.

Workman was identified as the photographer by the two girls who were the subjects

of these photographs. Both of these girls had been familiar with Workman through

his work at a gym. One of these girls had known him for several years. Had the

photograph that was introduced as State’s Exhibit 104-3 not been admitted at trial,

Workman would still have been convicted. It was the girls’ testimony that linked

Workman to these crimes not this single photograph. Further, the girl is fully

clothed in the photograph that is Exhibit 104-3. Workman is not serving time in

prison for taking a picture of a fully clothed minor. Even if these analyses did prove

that Workman did not take the picture that was admitted into evidence as Exhibit

104-3, this would still not establish that he did not take the other pictures in which

the minors are not clothed. For these reasons, Workman has not clearly and

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convincingly demonstrated that he would not have been convicted had Exhibit 104-

3 been taken out of the equation.

                                     Conclusion

       {¶32} Ultimately, the defendant directs our attention to a photograph that

was admitted as an exhibit during his trial. Ex. 104-3. Thus, the defendant has not

discovered new evidence but is merely presenting a new argument about old

evidence. Since he was not able to demonstrate that the exception for successive

petitions for postconviction relief applies in this case, the trial court did not have

jurisdiction under R.C. 2953.23(A)(1) to consider this successive petition for

postconviction relief and, therefore, did not err in dismissing Workman’s petition

or in declining to hold an evidentiary hearing on this matter. See Cunningham,

supra, at fn. 3. For these reasons, Workman’s first and second assignments of error

are overruled. Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of Auglaize County Court of Common Pleas is

affirmed.

                                                                 Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

/hls




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