[Cite as State v. Carusone, 2013-Ohio-5034.]



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




STATE OF OHIO,                                 :       APPEAL NO. C-130003
                                                       TRIAL NO. B-0606586
          Plaintiff-Appellee,                  :
                                                           O P I N I O N.
        vs.                                    :

RALPH CARUSONE,                                :

          Defendant-Appellant.                 :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: November 15, 2013




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

William Gallagher, for Defendant-Appellant.




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



HENDON, Presiding Judge.

       {¶1}   Defendant-appellant Ralph Carusone appeals the Hamilton County

Common Pleas Court’s judgment overruling his Crim.R. 33(B) motion for leave to file

a motion for a new trial. We reverse the court’s judgment upon our determination

that the common pleas court abused its discretion in denying leave without an

evidentiary hearing.

       {¶2}   Carusone was convicted in 2007 upon a jury verdict finding him guilty

of felony murder in violation of R.C. 2903.02(B). He unsuccessfully challenged his

conviction in appeals to this court and to the Ohio Supreme Court.         State v.

Carusone, 1st Dist. Hamilton No. C-070653 (Dec. 10, 2008), appeal not accepted,

121 Ohio St.3d 1451, 2009-Ohio-1820, 904 N.E.2d 901.

       {¶3}   In 2012, he moved under Crim.R. 33(B) for leave to file a Crim.R.

33(A)(6) motion for a new trial on the ground of newly discovered evidence. In this

appeal, he advances a single assignment of error in which he contends that the

common pleas court abused its discretion in denying leave without an evidentiary

hearing. We agree.

                                        The Trial

       {¶4}   Carusone was charged with both purposeful murder and felony

murder in connection with the death of Derek Rininger following a physical

altercation between the two outside Rininger’s home. The jury acquitted Carusone of

purposeful murder, but found him guilty of felony murder with felonious assault as

the predicate offense.

       {¶5}   The events preceding Rininger’s death were established through the

testimony of Carusone’s friend and the mother of Rininger’s children, Jennifer Kron;



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Kron’s roommate, Melinda Scalf; their friend Jacob Carroll; and Rininger’s next-

door neighbor.

       {¶6}      Kron and Scalf testified that, a few days before the altercation,

Rininger had come to their house and had stolen $500 from Scalf. In the hours

preceding the altercation, Rininger made several telephone calls to the house, during

which he argued with Scalf about the money and with Carusone about being with

“[his] girl,” Kron. Ultimately, at Rininger’s invitation, Kron, with Carusone in the

passenger seat and Scalf in the backseat, drove to Rininger’s house to recover what

remained of Scalf’s money.

       {¶7}      As Kron pulled into a gravel lot across from Rininger’s house, Rininger

ran from his house directly to the passenger side of the car and took a swing at

Carusone, either through the open car window (as Scalf testified) or as Carusone got

out of the car (as Kron testified). After a brief exchange of blows, Carusone returned

to the car, and Rininger ran to the driver’s side of the car and reached through the

open window for the car keys. With Kron between them, Carusone and Rininger

again struggled until Kron put the car in gear and drove away.

       {¶8}      Both men were bloody after their initial encounter. Neither Kron nor

Scalf had seen a weapon in either man’s hands. But Jacob Carroll testified that

Carusone had, the night before, shown him a Smith and Wesson pocket knife with a

six-inch blade that Carusone had carried on his belt. And at the hospital, a pocket

knife bearing traces of Rininger’s blood was recovered from the pocket of Rininger’s

bloody shorts.

       {¶9}      Rininger’s “yelling” and Kron’s “screaming” had attracted the attention

of Rininger’s next-door neighbor. The neighbor testified that she had observed two



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men struggling across the front seat of Kron’s car. As Kron drove off, the neighbor

saw Rininger run into and through to the back of his house, return to the front steps

with a towel in his hands, and “jump[] off the side of the steps.”

       {¶10} The neighbor “thought” that Rininger had then “run[] toward the

woods.” But a police officer, responding to Rininger’s 911 call reporting that he had

“just got stabbed,” found him next to the front porch, barely conscious, with a cell

phone in one hand and a blood-soaked bath towel held to his abdomen with the

other hand.

       {¶11} The officer summoned emergency-medical personnel. A member of

that crew testified that he had observed “severe bleeding” from stab wounds to both

the left inner arm and the chest, a weak pulse, and very shallow respirations, and

that Rininger had not been responsive to either verbal or painful stimuli. Rininger

went into cardiac arrest in the ambulance on the way to the hospital, where efforts to

resuscitate him proved futile.

       {¶12} Meanwhile, Kron had dropped Carusone off at a friend’s house. Jacob

Carroll testified that he had been present when Carusone arrived. According to

Carroll, Carusone appeared “distraught, wired,” but would not say why, until Carroll

asked about burnt clothing that he had seen on the back patio, and Carusone replied,

“I took care of business. I shanked him once.”

       {¶13} After leaving Carusone, Kron changed out of her blood-soaked pants,

and she and Scalf tried to clean blood from the car. Rininger’s neighbor had directed

the police to Kron, and they were there waiting when Kron and Scalf returned home.

Kron directed the police to Carusone.




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         {¶14} The deputy coroner’s examination of Rininger disclosed stab wounds

to his left inner arm and to the left side of his chest and blood in the pericardial sac

that the deputy coroner attributed to a “hole into the right side of the heart.” The

toxicology report showed that Rininger had recently ingested alcohol, cocaine,

marijuana, a tranquilizer, and an opiate analgesic.

         {¶15} The defense adduced expert opinion testimony attributing Rininger’s

“turbulent” behavior to his recent ingestion of the alcohol and drugs. But the deputy

coroner insisted that those substances had not contributed to Rininger’s death. In

his opinion, Rininger had instead “died as a result of a stab wound to the chest,”

administered with “[a] significant amount of force” to pass through the skin, the soft

tissues of the chest, the cartilage of the lower rib cage, the pericardium, and then the

heart.

                                        The Motion

         {¶16} Carusone sought by his motion leave to file a motion for a new trial on

the ground of newly discovered evidence. 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.” Crim.R. 33(B) requires that a Crim.R. 33(A)(6) 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.

         {¶17} In support of his Crim.R. 33(B) motion for leave to file a Crim.R.

33(A)(6) motion out of time, Carusone offered “newly discovered evidence” contained



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in the complete report of Rininger’s treatment at the hospital, the affidavit of an expert

in pathology, the complete “run report” compiled by the emergency-medical personnel

who had treated Rininger at the scene and on the way to the hospital, the transcript of

an enhanced audio recording of Rininger’s 911 call, and affidavits concerning state’s

witness Jacob Carroll. In support of his claim that he had been unavoidably prevented

from discovering this evidence within 120 days of the verdict, Carusone offered the

affidavits of his trial counsel, his mother, and the lawyer she had hired after Carusone’s

conviction, detailing the deficiencies in the discovery provided, the money, time and

effort expended to uncover and access the newly discovered evidence, and the trial

strategy that counsel would have pursued had he been provided with that evidence.

       {¶18} Hospital report. The state had disclosed to the defense in discovery

three pages of the report detailing Rininger’s treatment at the hospital. The deputy

coroner relied on the disclosed hospital records to arrive at his opinion that Rininger

had died as a consequence of a stab wound to the heart.

       {¶19} After Carusone was convicted, his mother obtained and reviewed the

case file and the evidence adduced at trial, researched the medical evidence, and made

public-records requests. Her review and research led her to the hospital that had

treated Rininger. She there learned of the existence of, and was provided with a copy

of, the complete, eight-page hospital report. The five pages of the hospital report that

had not been disclosed in discovery included an x-ray report and a summary prepared

by the emergency-room physician several days after Rininger’s autopsy.

       {¶20} Carusone’s mother then engaged the services of pathology expert

Thomas W. Young, M.D.         Dr. Young’s review of all the evidence, including the

treatment outlined in the undisclosed portions of the hospital report, led him to



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conclude that the deputy coroner had been mistaken in the cause of death. According

to Dr. Young, nothing in Rininger’s treatment at the scene, in the ambulance, or at the

hospital indicated that the stab wound “at the lower end of the ribcage on the left side *

* * [had] penetrated into the chest cavity or into the heart.” Dr. Young found that what

the deputy coroner had concluded was “a stab wound [to the heart was] in reality an

injury from pericardiocentesis,” that is, the insertion of a needle into the pericardial sac

in an effort to resuscitate Rininger at the hospital. In Dr. Young’s opinion, the evidence

showed that “Rininger had died as a result of cardiac arrest brought by the combined

effects of multiple drugs and alcohol and by heavy stress and exertion following a

physical confrontation.”

       {¶21} Evidence          probative         of   witnesses’        credibility      or

truthfulness. Carusone also supported his motion with the newly discovered

evidence contained in the complete emergency-medical “run report,” the enhanced

911 call, and affidavits concerning Jacob Carroll. This evidence, Carusone insisted,

when viewed in light of the newly discovered medical evidence contained in the

complete hospital report, demonstrates that the testimony of key state’s witnesses was

misleading or false.

       {¶22} The state had disclosed in discovery only the 8½- by 11-inch views of the

two-page 8½- by 14-inch run-report form. Carusone’s mother obtained the complete

8½- by 14-inch form through a public-records request, which she pursued first, and

unsuccessfully, by herself and then through counsel retained in 2012.

       {¶23} At trial, the state had presented the testimony of only one member of the

emergency-medical crew that had treated Rininger. The crew member testified that he

had observed severe bleeding from deep stab wounds to both Rininger’s arm and his



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chest, and that Rininger had not been responsive to painful stimuli. This testimony

was contradicted by that portion of the run report that the state had disclosed in

discovery, which indicated that blood had been “squirting” only from Rininger’s arm

wound, and that he had “flinched” in response to painful stimuli. Carusone argued

in his motion that the crew member’s credibility is further undermined by the newly

discovered evidence contained in the portion of the run report that had not been

disclosed in discovery, which lists the names and respective tasks undertaken by the

crew and shows that the crew member who testified at trial had neither treated nor

transported Rininger.

       {¶24} Rininger’s 911 call, also obtained through a public-records request, was

enhanced in 2012 to filter out background noise. The enhanced recording suggests

that Rininger’s brother had been present when the police officer found Rininger.

Carusone argued in his motion that this evidence, along with the newly discovered

medical evidence, undermines the credibility of Rininger’s brother, who testified at

trial that he had arrived at the house after the ambulance had gone, and the

credibility of the police officer, who testified that, when he found Rininger, no one

else had been present who could have contaminated the crime scene.

       {¶25} With respect to state’s witness Jacob Carroll, Carusone’s mother stated

in her affidavit that she had learned in 2008 that Carroll could not remember

testifying at her son’s trial. After “many attempts to locate and speak to [him],” she

finally located Carroll and met with him in 2010. Carroll agreed then to give an

affidavit, but did not, and Carusone’s mother thereafter “lost contact with [him] for a

significant period of time.”




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       {¶26} In the meantime, she obtained the affidavit of Tracy Armstrong, who had

resided at the house where Carusone was dropped off after his fight with Rininger.

Armstrong averred that she, and not Carroll, had admitted Carusone to the house that

night, and that Carroll had not, as he testified, been at the house when Carusone

arrived. She stated that Carusone had been “upset crying” and had repeatedly “[s]aid

‘he kept hitting me in the head * * * he kept hitting me in the head.’ ” Armstrong

insisted that she had made a taped statement to that effect when the police interviewed

her. Her statement was not disclosed to the defense in discovery, and Armstrong was

not called as a witness at Carusone’s trial.

       {¶27} Carroll later resurfaced, and in January 2012, he gave an affidavit. He

averred that he had been a long-term substance abuser and had been on a three-day

drug-and-alcohol binge on the night that Rininger died. Carroll confirmed Armstrong’s

statement that he had arrived at her house after Carusone. He stated that he had been

aware of a fight at Rininger’s house, and that he had observed that Carusone was

“distraught.” But Carroll did not discuss the fight with Carusone, nor did he hear

Carusone say that he “took care of business” or that he “shanked” someone.

       {¶28} Carroll also recanted his testimony that Carusone had shown him a

Smith and Wesson knife with a six-inch blade. Carusone’s mother had learned that

Smith and Wesson had never made such a knife. And Carroll stated in his affidavit that

while he had seen Carusone with a pocket knife, the knife did not have a six-inch blade,

but instead resembled the knife that Carusone’s mother had later shown him, which

had a two-and-a-half-inch blade.

       {¶29} Carroll further averred that he had “little memory” of talking to the

police the next day and “no memory” of what he had told them, because he had still



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been under the influence of drugs and alcohol. Carusone’s mother stated in her

affidavit that Carroll had told her that his physical condition after his hospitalization for

a heroin overdose had required him to use a cane when he testified at trial, and that the

police had been aware of the reason for the cane and had known that he was high when

he testified. Carroll, in his affidavit, confirmed the fact of and reason for his use of the

cane and his continued substance abuse. And he stated that while he remembered

appearing in court, he had “little memory” of his trial testimony, because he had

snorted just enough heroin that morning to keep from getting sick.

        {¶30} Trial strategy.          Finally, Carusone’s trial counsel asserted in his

affidavit that he would have pursued a different strategy had he been privy to the newly

discovered evidence. He would have, he insisted, used that evidence to challenge the

deputy coroner’s autopsy findings and opinion concerning the cause of death and to

challenge the credibility of Jacob Carroll. And he would not have counseled Carusone,

who had been “adamant that he wanted to testify about the fight and that he did not

have [a six-inch] knife,” not to testify.

             Abuse of Discretion in Denying Leave without a Hearing

        {¶31} Crim.R. 33, by its terms, contemplates a bifurcated proceeding when a

motion for a new trial on the ground of newly discovered evidence is filed more than

120 after the return of the verdict. First, the court must review the motion for leave,

along with any evidentiary material supporting the motion, and decide whether,

under Crim.R. 33(B)’s unavoidable-prevention standard, leave to file a new-trial

motion is warranted. If leave is not warranted, the matter is final, and the court may

not proceed to the second step of the analysis and decide the new-trial motion. If

leave is warranted, the movant is afforded seven days to file his new-trial motion,



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and the court may then decide that motion on its merits. See State v. Dawson, 7th

Dist. Mahoning No. 09 MA 209, 2011-Ohio-2773; State v. Josso, 8th Dist. Cuyahoga

No. 77227, 2000 Ohio App. LEXIS 1859 (Apr. 27, 2000); State v. Dawson, 9th Dist.

Summit No. 19179, 1999 Ohio App. LEXIS 3264 (July 14, 1999); State v. Wilson, 11th

Dist. Trumbull No. 89-T-4293, 1990 Ohio App. LEXIS 5571 (Dec. 14, 1990); State v.

Stanley, 3d Dist. Marion No. 9-88-37, 1989 Ohio App. LEXIS 3360 (Aug. 31, 1989);

State v. Lewis, 2d Dist. Montgomery No. 10362, 1987 Ohio App. LEXIS 8742 (Sept.

18, 1987); State v. Hunt, 4th Dist. Scioto No. 1553, 1986 Ohio App. LEXIS 7637

(June 11, 1986); State v. Walden, 19 Ohio App.3d 141, 146, 483 N.E.2d 859 (10th

Dist.1984); see also State v. Dawson, 89 Ohio St.3d 1208, 728 N.E.2d 1085 (2000)

(Lundberg Stratton, J., concurring in sua sponte dismissal of a certified conflict);

State v. Davis, 1st Dist. Hamilton No. C-860090, 1986 Ohio App. LEXIS 7725 (July

30, 1986) (“agree[ing] that the better practice consists of an initial determination of

unavoidable prevention and a subsequent disposition of the motion for new trial on

the merits”).

       {¶32} In seeking leave, the movant bears the burden of proving by clear and

convincing evidence that he was unavoidably prevented from timely discovering, and

from timely presenting in a new-trial motion, the evidence upon which his new-trial

motion depends. See Crim.R. 33(B); State v. Schiebel, 55 Ohio St.3d 71, 74, 564

N.E.2d 54 (1990).    A claim of unavoidable prevention must be supported with

evidence demonstrating that, within 120 days of the return of the verdict, the movant

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. Walden at

146; accord State v. Mathis, 134 Ohio App.3d 77, 79, 730 N.E.2d 410 (1st Dist.1999).



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A reviewing court may not overturn a decision on a motion for leave that is

supported by some competent and credible evidence. Schiebel at 74; Mathis at 79.

       {¶33} Crim.R. 33 does not mandate an evidentiary hearing on a motion for

leave. While the decision whether to conduct an evidentiary hearing is discretionary

with the court, see Toledo v. Stuart, 11 Ohio App.3d 292, 293, 465 N.E.2d 474 (6th

Dist.1983), courts have generally held that the movant is entitled to such a hearing

when he has supported his motion for leave with evidentiary material that, on its

face, demonstrates unavoidable prevention. See State v. Alexander, 11th Dist. No.

2011-T-0120, 2012-Ohio-4468, ¶ 15; State v. Peals, 6th Dist. Lucas No. L-10-1035,

2010-Ohio-5893, ¶ 23; State v. Gray, 8th Dist. Cuyahoga No. 94282, 2010-Ohio-

5842, ¶ 20; State v. Bush, 10th Dist. Franklin No. 08AP-627, 2009-Ohio-441, ¶ 8;

State v. Cleveland, 9th Dist. Lorain No. 08DA009406, 2009-Ohio-397; State v.

McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, 869 N.E.2d 77, ¶ 7 (2d

Dist.2007); State v. Monk, 5th Dist. No. 02CA000026, 2002-Ohio-6602, ¶ 10.

       {¶34} In the proceedings below, the common pleas court denied Carusone’s

motion for leave following the arguments of counsel. Based on the record before us,

we conclude that Carusone established, at the very least, an entitlement to an

evidentiary hearing on his motion, and that the common pleas court, in failing to

conduct such a hearing, abused its discretion.

       {¶35} Carusone sought a new trial on the ground that newly discovered

evidence demonstrated that he is actually innocent of felony murder and that he had

been denied a fair trial by the state’s violation of its duty to disclose that evidence in

discovery. The alleged fair-trial violation also underlay his assertion, in support of




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his motion for leave, that he had been unavoidably prevented from timely

discovering that evidence.

       {¶36} 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. See Brady

v. Maryland, 373 U.S. 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).           Evidence is

“material” if there is a “reasonable probability” that its disclosure would have

changed the outcome of the trial. United States v. Bagley, 473 U.S. 667, 682, 105

S.Ct. 3375, 87 L.Ed.2d 481 (1985).       In this context, the determination of this

probability entails an inquiry into not whether a trial with the undisclosed evidence

would have yielded a different verdict, but whether the evidence, “considered

collectively,” “could reasonably be taken to put the whole case in such a different

light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 434-

436, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); accord State v. Ketterer, 126 Ohio St.3d

448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 23-24; State v. Hughbanks, 1st Dist. No. C-

010372, 2003-Ohio-187, ¶ 57.

       {¶37} Carusone supported his motion for leave with evidence that the state

had failed to disclose to the defense in discovery the complete hospital report and the

complete emergency-medical run report. The undisclosed evidence contained in

those reports, along with other newly discovered evidence, served to undermine the

credibility of the state’s key witnesses and provided the fundament for the pathology

expert’s opinion that Rininger had not died from a stab wound to the heart, but had

died of “cardiac arrest brought by the combined effects of multiple drugs and alcohol

and by heavy stress and exertion following a physical confrontation.” Therefore, the



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motion, on its face, demonstrated that the undisclosed evidence was material in the

sense that it might reasonably be said to undermine confidence in the jury’s verdict

that Carusone had caused Rininger’s death as the proximate result of either

knowingly causing or attempting to cause him serious physical harm or knowingly

causing or attempting to cause him physical harm by means of a deadly weapon. See

R.C. 2903.02(B) and 2903.11(A).

       {¶38} Carusone also supported his motion with evidence demonstrating that

the state’s violation of its duty to disclose material evidence had effectively precluded

him from learning of the existence of that evidence and of the proposed grounds for a

new trial until his mother’s diligent posttrial investigation uncovered the evidence

and expert analysis revealed its significance. Thus, the motion, on its face, showed

that Carusone had been unavoidably prevented from timely discovering, and from

timely presenting in a new-trial motion, evidence material to his actual-innocence

and fair-trial claims. Therefore, Carusone demonstrated an entitlement to a hearing

on the motion.

       {¶39} Because Carusone was entitled to a hearing, the common pleas court’s

denial of leave to file a new-trial motion without a hearing cannot be said to have

been based on a sound reasoning process. We, therefore, hold that the common

pleas court abused its discretion in summarily overruling Carusone’s Crim.R. 33(B)

motion. See State v. Hill, 12 Ohio St.2d 88, 232 N.E.2d 394 (1967), paragraph two of

the syllabus (holding that an abuse of discretion is more than an error of law or

judgment, but rather implies that the court’s attitude was unreasonable, arbitrary, or

unconscionable); 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



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Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 [1990] to define an

“unreasonable” decision as one that lacks a sound reasoning process). Accordingly,

we sustain the assignment of error, reverse the court’s judgment, and remand this

matter to the court below for further proceedings consistent with law and this

opinion.

                                               Judgment reversed and cause remanded.

CUNNINGHAM and FISCHER, JJ., concur.



Please note:

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




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