[Cite as State v. Zielinski, 2014-Ohio-5318.]



                                      IN THE COURT OF APPEALS

                             TWELFTH APPELLATE DISTRICT OF OHIO

                                                WARREN COUNTY




STATE OF OHIO,                                        :
                                                               CASE NO. CA2014-05-069
        Plaintiff-Appellee,                           :
                                                                       OPINION
                                                      :                 12/1/2014
    - vs -
                                                      :

CHRISHAWNDA ZIELINSKI,                                :

        Defendant-Appellant.                          :



                     CRIMINAL APPEAL FROM WARREN COUNTY COURT
                                 Case No. 2010CRB00365



David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

Chrishawnda Zielinski, 10499 Morrow-Rossburg Road, Pleasant Plain, Ohio 45162,
defendant-appellant, pro se



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Chrishawnda Zielinski, appeals pro se from the decision

of the Warren County Court denying her motion for leave to file a delayed motion for a new
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trial without holding an evidentiary hearing. For the reasons outlined below, we affirm.

        {¶ 2} On November 9, 2010, Zielinski was sentenced to six months of community


1. Pursuant to Loc.R. 6(A), we have sua sponte removed this case from the accelerated calendar.
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control, fined $250 and ordered to attend anger management classes after the trial court

found her guilty of one count of domestic violence in violation of R.C. 2919.25(A), a first-

degree misdemeanor. The charge stemmed from a physical altercation between Zielinski

and A.H., her then 15-year-old daughter.

      {¶ 3} This court subsequently affirmed Zielinski's conviction on direct appeal in State

v. Zielinski, 12th Dist. Warren No. CA2010-12-121, 2011-Ohio-6535. From that decision, this

court summarized the evidence presented during the one-day bench trial as follows:

             [T]he altercation occurred on Mother's Day after A.H., who lives
             with her mother, returned home from a visit with her father. A.H.
             testified that she was upstairs in her room when mother asked
             her to work outside with the family. The two reportedly argued.
             Mother returned again upstairs at some point because, according
             to A.H., her mother thought she was "taking forever" to come
             downstairs.

             A.H. testified that her mother was standing in front of her and
             "came at me and I put my hands up, not to hit her or anything,
             but just put my hands up and she was so close, that I actually
             touched her and she got mad and she started swinging at me, * *
             * not really hard, just kind of swatting."

             A.H. said her mother was swatting at her when she pulled her
             mother's hair "like downwards and away from me, to get her off
             of me." A.H. said she tripped over things in her messy room and
             fell on her back and her mother fell on top of her. A.H. said she
             tried to crawl to the door, when mother "got on top of my back
             and put her arm around my neck" and was choking her. The
             daughter said she turned onto her back and mother was "on top
             of my stomach" and was holding A.H.'s arms back. "I was
             screaming and yelling and trying to get away."

             When asked how the fight ended, A.H. said "when I was on the
             ground, she punched me, one time right here, like right in the
             temple and two times right here on my bone (indicating face)."
             She said her mother told her to stop crying and she would let her
             up. A.H. said she "pulled it together really fast," her mother got
             up, and A.H. ran into her bathroom. The daughter said she
             began throwing things in her bathroom; "I was so upset." She
             called her father and stepmother on her cell phone and told them
             about the fight.

             A.H. testified that she had a bruise on her face and her wrist, her

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temple area was swollen, she had some blurred vision afterward,
and her ribs and back hurt. She said her mother helped put ice
on her face and she eventually went outside with the family.

On cross examination, A.H. denied that the injury to her eye
occurred "from the desk you ran into when you were falling over."
She also denied the eye injury was caused by falling into the
wall. A.H. said, "I was far enough distance from the wall that
when I fell, I didn't hit it." She denied starting the physical fight.
She admitted that she wanted to live with her dad and was now
living with him at the time of trial.

A deputy sheriff testified that he responded to the house after
father and stepmother called authorities. He said he observed
the daughter's left eye was swollen and black and blue. He
talked with A.H. and mother. Mother told the deputy her
daughter has "an attitude" whenever she is dropped off from her
father's, and the two were arguing over the daughter not coming
outside to help with yard work.

The deputy testified A.H. said she accidently hit mother. Mother
told the deputy she punched her daughter. He said he observed
several marks on mother's hand, including a bite mark that the
daughter admitted to inflicting when she said mother's hand was
around her neck. Photographs were taken of the visible injuries
of both mother and daughter. The deputy indicated he placed
mother and daughter in custody for domestic violence because
he was unable to determine the primary aggressor.

Mother testified that A.H.'s attitude was getting worse. "She's
just been a little more mouthy and you know, typical teenager."
Mother said that previously, the discipline they imposed on A.H.
would include such things as taking away her cell phone. Mother
felt that father and stepmother undermined her authority with her
daughter. Mother indicated she and A.H. had not had a physical
confrontation before this incident.

Mother said the first physical altercation with her daughter started
at the top of the steps when she pulled on her daughter's elbow
"to try to you know, just tell her come downstairs and then she
[A.H.] swung back like this and she had her fist up at me."
Mother testified that she told A.H., "[d]on't you dare do that."
Stepfather observed this encounter.

Mother said no one witnessed the next encounter when she went
back to her daughter's room to see why she still hadn't come
downstairs. According to mother, the daughter was throwing and
slamming things in her room. Mother said, "I didn't feel like
listening to all her garbage at that time." She said A.H. was

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                 screaming at her, so "I grabbed her arm, she swings back at me
                 and I swing back at her." "I don't remember hitting her at all."
                 Mother said A.H. grabbed mother's hair and would not let go.
                 Mother said she picked up her daughter to try to control the
                 situation. Mother said she wanted to get on top of her daughter
                 to get this to stop.

                 Mother indicated that when she picked up her daughter, there
                 were so many clothes, books, and things on the floor that "we
                 end up falling and she hits the wall. She hit the wall so hard, she
                 put a dent in my wall and at that point in time, when she hit the
                 wall, I was concerned about her."

                 According to mother, the fight continued when A.H. tried to get
                 up off the floor. Mother said she grabbed her daughter's head as
                 she was getting up and they fell back into the desk. Mother got
                 on top of her daughter and A.H. bit her hand. Mother said her
                 daughter called her a "bitch" and said she hated her. A.H.'s body
                 finally went limp after mother repeatedly told her daughter she
                 wasn't getting up until she stopped what she was doing.

                 Mother denied telling the deputy she punched her daughter. She
                 said she told the deputy she "must've punched her, because look
                 at her eye." Mother told the prosecutor she was frustrated at her
                 daughter "swinging things all over the place, her talking to me,
                 like I was a piece of crap and not doing what I asked her to do.
                 That's what frustrated me. * * * And she was frustrated with me,
                 because she didn't want to do it."

                 Stepfather testified that he observed the earlier encounter on the
                 stairs and indicated that the daughter reacted when mother "went
                 to grab [A.H.'s] elbow," the daughter took a "step back and put
                 both of her arms up in an aggressive manner." When asked if
                 he had ever gotten into a physical confrontation with A.H., the
                 stepfather said he had. The trial court sustained an objection by
                 the prosecutor and no additional questions of that nature were
                 asked.

Id. at ¶ 6-20.

       {¶ 4} On March 25, 2014, over two years after this court affirmed Zielinski's

conviction on direct appeal, Zielinski filed a motion for leave to file a delayed motion for a

new trial pursuant to Crim.R. 33. In support of this motion, Zielinski relied on purported "new

evidence substantial to her defense" regarding alleged statements made by A.H. to a social

worker that were overheard by her husband, Brian Zielinski, as A.H. was being checked into

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Cincinnati Children's Hospital for a psychiatric evaluation in May 2012. Specifically, Zielinski

alleged:

              During intake only one parent was permitted in [A.H.'s] room. At
              one point during intake [Zielinski] returned to the lobby and
              stated that [A.H.] had requested Brian to enter her room. Upon
              entering the room, the Social Worker/Psychologist performing
              the intake stated to [A.H.] that some parties felt the physical
              altercation with the defendant, her mother was a set up. The
              social worker directed a question to [A.H.] asking if it was a set-
              up and [A.H.] responded in the affirmative. When asked if she
              had anything else to say, [A.H.] responded "I'm sorry."

       {¶ 5} Zielinski also based her motion for leave on the results of A.H.'s May 2012

psychiatric evaluation, which indicated A.H. suffered from a "severe affective problem" that

caused "volatility, disruption, and acting out" due to her "below-average capacity to manage

stress, her poor control of emotional expression, and the strong intensity of her feelings."

       {¶ 6} On April 10, 2014, without holding an evidentiary hearing, the trial court entered

its decision denying Zielinski's motion for leave. In so holding, the trial court determined the

alleged "newly discovered" evidence would not disclose a strong probability that the outcome

of the trial would be different. The trial court also determined that this alleged "newly

discovered" evidence "would simply be used for impeachment purposes, not to disprove the

allegation of domestic violence."

       {¶ 7} Zielinski now appeals from the trial court's decision denying her motion for

leave to file a delayed motion for a new trial without holding an evidentiary hearing, raising

three assignments of error for review. For ease of discussion, Zielinski's three assignments

of error will be addressed together.

       {¶ 8} Assignment of Error No. 1:

       {¶ 9} THE TRIAL COURT ERRED BY FAILING TO HOLD AN EVIDENTIARY

HEARING PRIOR TO DECIDING THE APPELLANT'S CRIM. RULE 33 MOTION FOR A

NEW TRIAL.
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        {¶ 10} Assignment of Error No. 2:

        {¶ 11} THE TRIAL COURT ERRED IN HOLDING THE APPELLANTS [SIC] MOTION

FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE FAILS THE FIRST

STEP IN THE PETRO TEST.

        {¶ 12} Assignment of Error No. 3:

        {¶ 13} THE TRIAL COURT ERRED IN HOLDING THE APPELLANTS [SIC] MOTION

FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE FAILS THE SIXTH

STEP OF THE PETRO TEST.

        {¶ 14} In her three assignments of error, Zielinski argues the trial court erred by

denying her motion for leave to file a delayed motion for a new trial. Zielinski also argues the

trial court erred by not holding an evidentiary hearing on her motion. We disagree.

        {¶ 15} Pursuant to Crim.R. 33(A)(6), a new trial may be granted on the motion of the

defendant "[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."2 As noted by

the Ohio Supreme Court, in order to prevail on a motion for a new trial based upon newly

discovered evidence, such as the case here, the defendant must establish the evidence:

                 (1) discloses a strong probability that it will change the result if a
                 new trial is granted, (2) has been discovered since the trial, (3) is
                 such as could not in the exercise of due diligence have been
                 discovered before the trial, (4) is material to the issues, (5) is not
                 merely cumulative to former evidence, and (6) does not merely
                 impeach or contradict the former evidence.

State v. Petro, 148 Ohio St. 505 (1947), syllabus; State v. Webb, 12th Dist. Clermont No.

CA2013-01-013, 2014-Ohio-2894, ¶ 43.

        {¶ 16} "Crim.R. 33 motions for a new trial are not to be granted lightly." State v.




2. We note that Zielinski's motion was filed well outside the 120-day period required by Crim.R. 33(B) for filing a
motion for a new trial, thereby requiring her to seek leave from the trial court to file her motion.
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Thornton, 12th Dist. Clermont No. CA2012-09-063, 2013-Ohio-2394, ¶ 21, citing City of

Toledo v. Stuart, 11 Ohio App.3d 292, 293 (6th Dist.1983). "The decision 'to grant or deny a

motion for a new trial on the basis of newly discovered evidence is within the sound

discretion of the trial court and, absent an abuse of discretion, that decision will not be

disturbed.'" State v. Stojetz, 12th Dist. Madison No. CA2009-06-013, 2010-Ohio-2544, ¶ 68,

quoting State v. Hawkins, 66 Ohio St.3d 339, 350 (1993). The same is true regarding the

trial court's decision to hold an evidentiary hearing on the motion. State v. Gatliff, 12th Dist.

Clermont No. CA2012-06-045, 2013-Ohio-2862, ¶ 69. An abuse of discretion implies that the

court's decision was unreasonable, arbitrary, or unconscionable, and not merely an error of

law or judgment. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.

       {¶ 17} Here, after a thorough review of the record, we are not convinced this alleged

"newly discovered" evidence regarding A.H.'s alleged statements to a social worker

acknowledging the physical altercation with Zielinski was a "set up," or the results of A.H.'s

May 2012 psychiatric evaluation, would have had any impact on the trial court's guilt finding.

Although Zielinski maintains that she never struck A.H., just as the trial court found, there

was evidence presented at trial indicating Zielinski admitted punching her daughter to the

responding officer. In fact, Zielinski herself testified that she told the responding officer that

she "must've punched [A.H.], because look at her eye." Nothing about this alleged "newly

discovered" evidence negates this fact.

       {¶ 18} Furthermore, even assuming the altercation was a "set up" by A.H. that was

caused by her diagnosed "severe affective problem," this has no impact on Zielinski's

conduct after the altercation with A.H. turned physical. Again, there was evidence presented

at trial indicating Zielinski admitted punching her daughter to the responding officer. After

hearing all the evidence presented at trial, including Zielinski's own testimony regarding the

incident, the trial court was able to judge the credibility of the witnesses and find Zielinski
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guilty of domestic violence.

       {¶ 19} This court later affirmed that decision by concluding the "trial court could find

from the manifest weight of the evidence that [Zielinski] caused or attempted to cause

physical harm to her daughter as she was aware that her conduct would likely cause a

certain result." Zielinski, 2011-Ohio-6535 at ¶ 32. This court also found Zielinski failed to

"sustain her burden regarding her affirmative defenses" of self-defense, or even that she was

"using proper and reasonable discipline to control her daughter." Id. Therefore, based on

the facts and circumstances here, we agree with the trial court's finding that there was no

reasonable probability that the outcome of the trial would have been different had the trial

court been able to hear this alleged "newly discovered" evidence.

       {¶ 20} We also agree with the trial court's decision finding this alleged "newly

discovered" evidence would merely be used for impeachment purposes, a fact which Zielinski

herself admitted as part of her motion for leave filed with the trial court. As Zielinski stated in

her motion, "[t]his report, coupled with testimony at trial, would have elevated the reasonable

doubt for the defendant. It would have been a primary means of impeaching the testimony of

[A.H.]." (Emphasis added.) Zielinski also acknowledged as part of her appellate brief

submitted to this court that such evidence was merely "contradictory to [A.H.'s] testimony at

trial where she claimed she was trying to protect herself and stop the altercation." (Emphasis

added.) As the alleged "newly discovered" evidence must do more than merely impeach or

contradict the former evidence, this is an insufficient basis upon which to grant motion for a

new trial. See, e.g., State v. Hoop, 12th Dist. Brown No. CA2012-10-019, 2013-Ohio-3078, ¶

12 (finding no abuse of discretion in the trial court's decision denying a motion for a new trial

where alleged "newly discovered" evidence was merely cumulative and served only to further

impeach the evidence previously introduced at trial).

       {¶ 21} Zielinski, however, claims an evidentiary hearing was required in this matter
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because "the trial court judge who ruled on the appellant's motion for a new trial was not the

initial Trier of fact." Zielinski has not cited to any authority to support her position, nor has our

research revealed any such requirement within Crim.R. 33 to support such a claim. Rather,

as previously noted, the decisions whether to grant a motion for a new trial or hold an

evidentiary hearing on the motion are committed to the trial court's sound discretion. Based

on the facts and circumstances here, we find the trial court did not abuse its discretion in

failing to hold an evidentiary hearing. Zielinski's argument to the contrary is therefore without

merit and overruled.

       {¶ 22} Zielinski also claims she should be permitted to file a delayed motion for a new

trial because the trial court created an "error of law" by finding her guilty, a decision which

she claims is in conflict with the Seventh District Court of Appeals' decision in State v. Rosa,

7th Dist. Mahoning No. 12 MA 60, 2013-Ohio-5867. In that case, the Seventh District held

"proof of unreasonable parental discipline is part of the analysis of the physical harm

element, with the state bearing the burden of proof." Id. at ¶ 3. Zielinski, however, did not

argue parental discipline at trial; rather, she merely argued self-defense. We have already

determined that this did not constitute ineffective assistance of trial counsel. Zielinski, 2011-

Ohio-6535 at ¶ 54-57.

       {¶ 23} It is a well-established principle that the various trial courts within the counties

comprising this district are bound to follow case law from this court and that from the Ohio

Supreme Court, and not from our brethren in the Seventh District. Moreover, even if we were

to adopt the Seventh District's reasoning in Rosa, that decision was released two years after

this court had already affirmed Zielinski's conviction on direct appeal. This court is not willing

to revisit our decision in Zielinski and allow for a new trial under these circumstances. This is

particularly true here given this matter constitutes a factually intensive case of domestic

violence between a mother and her daughter. Therefore, Zielinski's argument that she
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should be granted leave to file a delayed motion for a new trial based on the Seventh

District's decision in Rosa is likewise without merit and overruled.

       {¶ 24} In light of the foregoing, we find the trial court did not abuse its discretion in

denying Zielinski's motion for leave to file a delayed motion for a new trial, nor did the trial

court abuse its discretion in failing to conduct an evidentiary hearing regarding the same.

Accordingly, Zielinski's three assignments of error are overruled.

       {¶ 25} Judgment affirmed.


       RINGLAND, P.J., and M. POWELL, J., concur.




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