[Cite as State v. Hoover-Moore, 2015-Ohio-4863.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                       No. 14AP-1049
v.                                                 :               (C.P.C. No. 02CR12-7503)

Kim Hoover-Moore,                                  :              (REGULAR CALENDAR)

                 Defendant-Appellant.              :



                                          D E C I S I O N

                                  Rendered on November 24, 2015


                 Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for
                 appellee.

                 Timothy Young, Ohio Public Defender,             and Joanna
                 Feigenbaum, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

KLATT, J.
        {¶ 1} Defendant-appellant, Kim Hoover-Moore, appeals from a judgment of the
Franklin County Court of Common Pleas denying her post-trial motions.                 For the
following reasons, we affirm that judgment.
I. Factual and Procedural Background
        {¶ 2} In 2002, appellant was indicted on a number of charges arising from the
death of an infant, Samaisha Benson, who sustained fatal injuries allegedly during the
time she was in appellant's care. State v. Hoover-Moore, 10th Dist. No. 03AP-1186,
2004-Ohio-5541, ¶ 2. As this court noted in our previous opinion, Dr. Ellen McManus
testified at trial that Benson suffered from "shaken baby impact syndrome," a sub-
category of "shaken baby syndrome." According to Dr. McManus:
No. 14AP-1049                                                                             2

              "[S]haken baby syndrome" occurs "where a child, usually a
              small infant * * * is violently shaken and their head swings
              back and forth. The brain tends to bounce around inside the
              skull causing very tiny blood vessels that help the brain, feed
              the brain, get torn off and the blood starts to kind of pool
              around the brain itself, which causes pressure on the brain
              and can eventually kill the baby." (Tr. Vol.II, 365.)

Id. at ¶ 7.
       {¶ 3} Dr. McManus described "shaken baby impact syndrome" as "essentially the
same thing, violently shaking, but at some point the head actually impacts a hard surface
and sustains a fracture." Id. While treating Benson, Dr. McManus ordered a CT scan of
her head.     The scan revealed a skull fracture, a subdural hematoma, and retinal
hemorrhages. The coroner who performed an autopsy on Benson opined that the skull
fracture and subdural hematomas resulted from being struck on the head by an object or
the head striking an object. Id. at ¶ 11. The retinal hemorrhages suggested to the coroner
that the baby had also been shaken. The coroner ultimately concluded that Benson died
from "blunt impact to her head with the resulting fractures of the skull and subdural
hemorrhages." Id. The coroner testified that the actual cause of death was swelling of the
brain which can occur over a period of time, unless the traumatic event is so severe that it
could cause incapacity within minutes, not hours. Id. at ¶ 12.
       {¶ 4} The timing of those injuries was the critical issue at trial. Benson's mother
testified that Benson was fine when she left her house at 11:30 a.m. Benson was there
with her sisters and her father, who was to take her to appellant's house at 3:00 p.m. so he
could go to work. The father testified that Benson was acting normally during that time.
He testified that she was awake and crying when he took Benson to appellant's house.
Appellant testified that Benson was asleep when she came to her house and slept for the
next few hours. Sometime between 6:00 and 6:30 p.m., when appellant attempted to feed
Benson, she noticed that Benson was having a hard time holding her head up and
breathing. She called 911 at 6:39 p.m. Id. at ¶ 4, 27. Appellant denied harming Benson,
but was the only adult with Benson for 3½ hours before that 911 call.
       {¶ 5} Dr. McManus testified that Benson's injuries occurred "within probably
minutes" of the 911 call. Another doctor, Dr. Charles Johnson, testified similarly. Dr.
Gerald Steinman testified on appellant's behalf. He agreed that the baby's injuries were
No. 14AP-1049                                                                                         3

consistent with shaken baby impact syndrome, but concluded that the injuries could have
occurred while Benson was in the care of her parents before they dropped her off at
appellant's house. Id. at ¶ 24. (Steinman testified that timeline was not minutes but
hours.)
       {¶ 6} The jury found appellant guilty of all charges and she was sentenced
accordingly. This court affirmed. Id.1 The Supreme Court of Ohio denied review. State
v. Hoover-Moore, 119 Ohio St.3d 1475, 2008-Ohio-4911.
       {¶ 7} In 2014, however, the trial court filed an entry in this case that ordered the
keeper of records of Nationwide Children's Hospital to provide appellant and the state
with an inventory of all records regarding Benson's care while at the hospital. It appears
that the hospital provided this inventory. Months later, appellant filed in the trial court a
motion to compel the production of records, seeking an order from the trial court for the
hospital to release Benson's records. She sought those records so that a pediatric forensic
pathologist could review them and provide an opinion regarding whether Benson's
injuries could have been caused by something other than shaken baby syndrome or by
someone other than appellant. The state objected, arguing that the trial court lacked
jurisdiction to issue such an order and also that appellant was not entitled to
postconviction discovery.
       {¶ 8} Appellant also filed a motion for leave to file a delayed motion for new trial
based on newly discovered evidence. Specifically, appellant argued that since her trial,
"the medical community has recognized that a child who suffers from a brain injury could
experience a period of lucidity for up to 72 hours before his or her symptoms become
acute." To support this assertion, appellant cited what appears to be a book published in
2014 and a journal article published in 2005.                She also argued that the medical
community's opinion regarding the symptoms that were thought to be indicative of
shaken baby syndrome had also changed.2 She noted that the same symptoms could be
caused by other non-abusive reasons. To support this assertion, appellant cited a journal


1We also affirmed the trial court's denial of appellant's petition for postconviction relief.   State v.
Hoover-Moore, 10th Dist. No. 07AP-788, 2008-Ohio-2020.

2 See State v. Harmon, 9th Dist. No. 21384, 2003-Ohio-4153, ¶ 11 (noting the classic "triad of injuries"
that are typically caused by shaken baby syndrome: cerebal edema, subdural hemorrhage, and retinal
hemorrhages).
No. 14AP-1049                                                                                4

article published in 2012, a newspaper article published in 2012, and multiple court cases.
She also attached to her motion an affidavit from a doctor who averred that she had been
contacted about a forensic consultation regarding Benson's death and that she would need
certain medical records to form an accurate and complete opinion.
       {¶ 9} The trial court denied both of appellant's motions. In regard to the motion
for leave, the trial court ruled that appellant did not produce newly discovered evidence;
that the new medical opinions she presented were simply different opinions based on the
same evidence presented at trial in an attempt to dispute the timing of Benson's injuries,
an issue that was litigated during her trial. The trial court also noted that this was not just
a "shaken baby syndrome" case because Benson suffered a skull fracture that would have
involved significant force. Accordingly, the trial court denied appellant's motion for leave
to file a delayed motion for new trial. As a result, the trial court ruled that it had no
jurisdiction to order the production of documents in a closed criminal case.
II. Appellant's Appeal
       {¶ 10} Appellant appeals and assigns the following errors:
              [I.] The trial court abused its discretion when it failed to hold
              a hearing on Kim Hoover-Moore's Motion for Leave to File a
              Motion for New Trial when she presented new evidence that
              undermines her conviction, the record and circumstances
              supported Ms. Hoover-Moore's claim that she was
              unavoidably prevented from discovering the evidence at issue,
              and the delay in filing the material was reasonable under the
              circumstances.

              [II.] The trial court abused its discretion when it failed to
              grant Ms. Hoover-Moore's Motion for Leave to File a Delayed
              Motion for New Trial.

              [III.] The trial court abused its discretion when it failed to
              grant Ms. Hoover-Moore's motion to compel the production
              of medical records where she demonstrated that: (1) she was
              provided the records in pre-trial discovery, (2) the records
              were lost be counsel, through no fault of her own, (3) she
              made diligent efforts to obtain the records through other
              sources, (4) the records are central to her case, and (5) the
              trial court acknowledged it had jurisdiction to order the
              records by first ordering an inventory of the records.
No. 14AP-1049                                                                             5

        A. The Trial Court's Denial of Appellant's Motion for Leave to File
        a Delayed Motion for New Trial

        {¶ 11} Appellant argues in her first and second assignments of error that the trial
court erred by denying her motion for leave to file a delayed motion for new trial without a
hearing. We conclude that any such error was harmless under the circumstances of this
case.
              1. Motion for Leave to File a Delayed Motion for New Trial
              Pursuant to Crim.R. 33(B)

        {¶ 12} Appellant filed her motion for new trial pursuant to Crim.R. 33(A)(6), which
provides that a new trial may be granted "[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." Such a motion must have been filed within 120 days after the
verdict was rendered. Crim.R. 33(B). Appellant did not file her motion until much later
than that date.
        {¶ 13} Because appellant did not file her motion for a new trial based on newly
discovered evidence within 120 days of the jury's verdict, she correctly sought leave from
the trial court to file a delayed motion. State v. Berry, 10th Dist. No. 06AP-803, 2007-
Ohio-2244, ¶ 19. To obtain such leave, the defendant must demonstrate by clear and
convincing proof that he or she was unavoidably prevented from discovering the evidence
within the 120 days. A party is "unavoidably prevented" from filing a motion for a new
trial if the party had no knowledge of the existence of the ground supporting the motion
and could not have learned of that existence within the time prescribed for filing the
motion in the exercise of reasonable diligence. Id., citing State v. Lee, 10th Dist. No.
05AP-229, 2005-Ohio-6374, ¶ 7, and State v. Walden, 19 Ohio App.3d 141, 145-46 (10th
Dist.1984).
        {¶ 14} An appellate court applies an abuse of discretion standard in reviewing a
trial court's denial of a motion for leave to file a delayed motion for new trial. State v.
Anderson, 10th Dist. No. 12AP-133, 2012-Ohio-4733, ¶ 9. A trial court's decision whether
to conduct an evidentiary hearing on a motion for leave to file a motion for new trial is
also discretionary. State v. Cleveland, 9th Dist. No. 08CA009406, 2009-Ohio-397, ¶ 54.
Although an abuse of discretion is typically defined as an unreasonable, arbitrary, or
No. 14AP-1049                                                                               6

unconscionable decision, no court has the authority, within its discretion, to commit an
error of law. State v. Moncrief, 10th Dist. No. 13AP-391, 2013-Ohio-4571, ¶ 7.
       {¶ 15} Appellant alleged in her motion for leave to file a motion for new trial that
she had been unavoidably prevented from discovering the evidence because she had been
incarcerated and lacked the resources and ability to discover the medical advances. The
trial court denied appellant's motion for leave but did not address whether appellant was
unavoidably prevented from discovering the evidence she relied on in her motion.
Instead, the trial court addressed and rejected appellant's arguments for a new trial on the
merits. State v. Alexander, 11th Dist. No. 2011-T-0120, 2012-Ohio-4468, ¶ 22. See also
State v. Valentine, 11th Dist. No. 2002-P-0052, 2003-Ohio-2838, ¶ 11 (affirming denial of
motion for leave even without finding of unavoidable prevention where defendant did not
present reason to grant new trial); State v. Newell, 8th Dist. No. 84525, 2004-Ohio-6917,
¶ 27 (same).
               2. Crim.R. 33(A)(6) Motion for New Trial Based on Newly
               Discovered Evidence

       {¶ 16} In order to grant a motion for a new trial based on newly discovered
evidence, it must be shown that the newly discovered evidence upon which the motion is
based: (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. Burke, 10th Dist. No. 06AP-656, 2006-Ohio-4597, ¶ 13, citing
State v. Davis, 10th Dist. No. 03AP-1200, 2004-Ohio-6065, ¶ 7; State v. Petro, 148 Ohio
St. 505 (1947), paragraph one of the syllabus. Our review of a trial court's decision
resolving a motion for new trial is limited to determining whether the trial court abused
its discretion. State v. Chavis-Tucker, 10th Dist. No. 14AP-40, 2014-Ohio-3050, ¶ 5.
       {¶ 17} The trial court concluded that appellant's evidence indicating the possibility
of an extended period of time between a brain injury and the appearance of acute
symptoms was simply additional medical evidence disputing the timing of Benson's
injuries, an issue that had been central at appellant's trial. This conclusion comports with
No. 14AP-1049                                                                             7

the fifth and sixth prongs of the Petro test, which addresses evidence that is merely
cumulative or that merely impeaches or contradicts evidence presented at trial.
       {¶ 18} Here, appellant presented evidence indicating that the medical community
now recognizes that a child who suffers a brain injury might not be acutely symptomatic
for up to 72 hours. However, the timing of Benson's injuries was the central disputed
issue at appellant's trial. The state's expert witnesses opined that Benson's injuries would
become symptomatic within minutes of her injuries. Alternatively, appellant's expert
witness opined that it could have been hours before Benson became symptomatic and that
it was entirely possible that the injuries were inflicted while Benson was in the parents'
custody. Thus, appellant's new evidence is merely cumulative to that of her own expert
witness's testimony and, similarly, is additional evidence that simply contradicts or
impeaches the opinions of the state's expert witnesses. See State v. Babos, 6th Dist. No.
L-11-1258, 2013-Ohio-1256, ¶ 14 (denying motion for new trial based on new expert
witness testimony for same reasons).
       {¶ 19} Appellant argues that the new medical opinion is more akin to the change in
expert opinion that occurred in State v. Burke, 10th Dist. No. 06AP-686, 2007-Ohio-
1810. We disagree. In that case, we concluded that Burke was entitled to a new trial
based on the change in testimony from a forensic pathologist who testified at trial but who
later testified that his testimony was erroneous. Appellant's reliance on Burke is
misplaced, as that case involved the actual change in an expert witnesses' opinion. Here,
none of the witnesses have changed their expert testimony.
       {¶ 20} The trial court also concluded that the medical community's new opinions
regarding the diagnosis and symptoms of shaken baby syndrome were not relevant in this
case because Benson had a skull fracture which indicated that this case involved more
than just shaken baby syndrome. This conclusion comports with the first and fourth
prongs of the Petro test, which in essence addresses the relevancy of the purported
evidence.   Appellant's claim addresses the medical community's change in how it
diagnoses children with shaken baby syndrome when presented with certain injuries.
This claim is not relevant here because Benson had additional injuries, most significantly
a fractured skull, which distinguishes this case from a shaken baby syndrome case. State
v. Garcia, 10th Dist. No. 03AP-384, 2004-Ohio-1409, ¶ 12 (expert testimony
No. 14AP-1049                                                                              8

distinguishing shaken baby syndrome from shaken impact syndrome); State v. Hendrex,
11th Dist. No. 2009-T-0091, 2010-Ohio-2820, ¶ 24 (same); People v. Clay, Ill.App. No. 5-
09-0698 (Jan. 3, 2012) (same). Therefore, any change in how the medical community
diagnoses an infant with shaken baby syndrome is not material in this case and does not
create a strong probability of a different result.
       {¶ 21} Because appellant's evidence does not satisfy the Petro requirements in
order to warrant the granting of a new trial based on newly discovered evidence, the trial
court did not abuse its discretion by rejecting appellant's arguments for a new trial.
Therefore, we deny appellant's first and second assignments of error.
       B. Appellant's Motion to Compel the Production of Medical
       Records

       {¶ 22} In appellant's third assignment of error, she claims that the trial court erred
by not compelling the production of Benson's medical records from Nationwide
Children's Hospital. The trial court denied appellant's motion to compel based on its
denial of appellant's motion for leave to file a motion for new trial. The trial court
concluded that as a result, it had no continuing jurisdiction to order the production of
records because appellant's criminal case was closed. We agree.
       {¶ 23} Appellant has not demonstrated any entitlement to engage in discovery in a
closed criminal case. Nor do we find any such entitlement. State v. Buchanan, 9th Dist.
No. 21709, 2004-Ohio-1232, ¶ 8-9 (no right to discovery after denial of motion for new
trial filed 13 years after conviction). See also State v. West, 7th Dist. No. 07 JE 26, 2009-
Ohio-3347, ¶ 17 (noting the absence of case law holding or rule that would allow discovery
to be reopened in a closed criminal case); State v. Mason, 5th Dist. No. 01COA01423
(Oct. 3, 2001) (affirming decision of trial court to dismiss discovery requests made in
closed case). Accordingly, we overrule appellant's third assignment of error.
III. Conclusion
       {¶ 24} Having overruled appellant's three assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.

                                    BROWN, P.J., concurs.
                                    HORTON, J., dissents.
No. 14AP-1049                                                                             9

Horton, J., dissenting.

       {¶ 25} I respectfully dissent. As the majority opinion points out, the timing of the
injury was the critical issue at trial. Here, Hoover-Moore has presented evidence that new
medical studies have shown that it is much more difficult to pinpoint the exact time of
trauma than was previously thought, and to which the medical witnesses testified at the
jury trial in 2003. The new studies indicate that there may be an extended period of
lucidity between when a child suffers a brain injury and the onset of symptoms. As such,
if the timing of the trauma to the infant is in doubt, then other natural, accidental, or
abusive causes and/or suspects could come into play.
       {¶ 26} Specifically, in regard to other potential suspects, both Samaisha's mother
and father spent significant time with her on the day in question prior to delivering her to
Hoover-Moore. (See Tr. Vol. II, 277-79, 298, 323-27.) The record indicates that there was
a history of domestic violence between Samaisha's mother and father, and testimony that
the father had shaken Samaisha's sister when the sister was only three months old. (Tr.
Vol. II, 304-08; exhibit A, Motion for Leave to File a Delayed Motion for New Trial.) At
the hospital, the mother thought that it was important to tell a social worker of her
husband's history of abuse. (Tr. Vol. II, 288, 310-11.)
       {¶ 27} While the above information regarding the parents' domestic violence issues
was presented at the jury trial, the new medical studies could cast this testimony in a
different light. At the trial, all of the medical testimony was clear that the injury had to
have occurred within a few minutes of the onset of the symptoms, or at most within two
hours before, i.e., while Samaisha was with Hoover-Moore. Without the presentation of
the new medical evidence, potential logical suspects were effectively excluded from jury
consideration. There was no medical evidence presented by either side that the injury
could have occurred while she was with her parents. If the findings of the new studies are
believed, it is possible that a jury could find that the injury occurred while Samaisha was
with one or both of her parents.
       {¶ 28} As the majority states, to obtain leave to file a motion for a delayed appeal,
Hoover-Moore must show that she was unavoidably prevented from discovering the new
evidence within 120 days of the jury's verdict. The jury's verdict was on November 7,
2003. The main study upon which Hoover-Moore relies was not published until 2014. In
No. 14AP-1049                                                                           10

addition, Hoover-Moore has been incarcerated since November 19, 2003, which presents
inherent difficulties in staying current with the other relevant recently published medical
studies or developments.
       {¶ 29} The majority mentions that the "trial court denied appellant's motion for
leave but did not address whether appellant was unavoidably prevented from discovering
the evidence she relied on." The majority finds that the trial court's failure to hold a
hearing on Hoover-Moore's motion for leave to file a delayed motion for new trial was
"harmless under the circumstances." I would find that Hoover-Moore was unavoidably
prevented from discovering the new evidence within 120 days of the jury's verdict, and I
disagree that it was harmless error to fail to hold a hearing.
       {¶ 30} Based on the above, the facts of this case warrant a hearing on Hoover-
Moore's motion for leave to file a delayed motion for new trial. Therefore, I would find
that the trial court abused its discretion in not holding a hearing on Hoover-Moore's
motion for leave to file a delayed motion for new trial.
       {¶ 31} I would sustain Hoover-Moore's first assignment of error, thereby rendering
Hoover-Moore's remaining two assignments of error moot. Accordingly, I would reverse
the judgment of the Franklin County Court of Common Pleas, and remand this action for
a hearing on Hoover-Moore's motion for leave to file a delayed motion for new trial.
