[Cite as State v. White, 2017-Ohio-6984.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105430




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                     JERMEAL WHITE
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-581732-A

        BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: July 27, 2017
FOR APPELLANT

Jermeal White, pro se
Inmate No. 654-040
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, Ohio 44430


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Anthony Thomas Miranda
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1}         Defendant-appellant, Jermeal White (“White”), brings this appeal

challenging the trial court’s judgment denying his motion for a new trial. Specifically,

White argues that the trial court erred by denying his motion for a new trial and failing to

hold an evidentiary hearing on the motion.     After a thorough review of the record and

law, we affirm.

                             I. Factual and Procedural History

       {¶2} In May 2014, White was convicted of aggravated murder, murder, aggravated

burglary, felonious assault, and kidnapping.   The following relevant facts were presented

at a bench trial.

       {¶3} On December 22, 2012, Don’Tel Sheeley (“victim”), was shot and killed in a

house on East 99th Street in Cleveland, Ohio. Several witnesses testified that two men,

armed with handguns, entered the house and attempted to steal marijuana from the victim.

 During the course of this robbery, the victim was shot three times.

       {¶4} One of White’s codefendants, Richard Harris (“Harris”), testified against

White at trial in exchange for a plea agreement.1

       According to Harris, he, [White], and [codefendant] Lateef Taylor planned
       to rob [the victim] of marijuana. The three got a ride from Ashaka
       Johnson from the west side of Cleveland to the east side, near [the victim’s]
       house. Taylor, a friend of the [victim’s] family, then went inside the house

       1Under the plea agreement, Harris received a sentence of life in prison with
parole eligibility after 18 years.
        to purchase some marijuana from [the victim]. He informed [White] and
        Harris of the situation in the house, including that [the victim] had a firearm
        on or near his person. Harris and [White] then went to the house, knocked
        on the side door, and forced their way through once it began to open.

        Harris testified that he entered into a kitchen where he attempted to hold
        several occupants there at gunpoint while [White] ran to the front of the
        house where Taylor had told them [the victim] was located.

State v. White, 8th Dist. Cuyahoga No. 101576, 2015-Ohio-2387, ¶ 4-5.

        {¶5} A witness who was sitting next to the victim in the living room
        testified that the victim had a handgun in his lap. She testified that a man
        wearing a partial mask and carrying a gun entered the living room. She
        asserted that she hid behind the television and heard a number of shots
        fired.          Harris testified that he was in the kitchen when shots were
        fired. He ran out of the house followed by [White]. They then met up
        with Taylor. Harris asked [White] what happened, and Harris testified that
        [White] said that [the victim] reached for a gun so [White] shot him.
        According to Harris, the three got a ride from [Ashaka] Johnson back to the
        apartment where [White] was staying.

Id. at ¶ 9.

        {¶6} None of the occupants of the house identified White as one of the intruders

on the night of the shooting.      However, a few days after the shooting, two of the

occupants who were inside the house when the incident occurred told the investigating

officers that White was one of the intruders.      Kimmetta Sheeley, the victim’s mother,

testified that she had known White since he was nine years old and that she recognized

White as one of the intruders based on facial tattoos, his nose, other facial characteristics,

and his voice. Mack Miller testified that one of the intruders had a smile that looked

familiar to and resembled White’s smile.

        {¶7} Three bullets were recovered from the victim’s body.      It was determined that
the bullets were fired by a .40 caliber handgun.    Harris testified that he and White made

arrangements to sell the murder weapon to Darrell Davis.              Davis testified that he

purchased the gun from Harris and White.

       {¶8} At the close of trial, the trial court found White guilty of all charges.    The

trial court imposed an aggregate prison sentence of 28 years to life.

       {¶9} In June 2014, White filed a direct appeal challenging his convictions and the

trial court’s sentence. White, 8th Dist. Cuyahoga No. 101576, 2015-Ohio-2387. This

court affirmed White’s convictions and the trial court’s sentence, but remanded the matter

to the trial court for the limited purpose of issuing a nunc pro tunc journal entry to correct

inaccuracies in the court’s journal entry of sentence. Id. at ¶ 69.

       {¶10} On December 7, 2016, White filed a motion for leave to file a motion for a

new trial and a motion for a new trial based on newly discovered evidence.       Specifically,

in support of his motions, White submitted the affidavit of Devon Johnson. Johnson

averred that White “had nothing to do with [the victim] getting killed.”             Johnson

asserted that his cousin, codefendant Harris, told him that Harris and Harris’s friend, who

was not White, went into the victim’s house and that Harris shot the victim. Johnson

further averred that he and Harris sold the murder weapon to Davis. In sum, Johnson’s

affidavit alleged that White was not present at the time of the shooting nor the subsequent

gun sale.

       {¶11} On December 28, 2016, the trial court granted White’s motion for leave.

However, on January 20, 2017, the trial court denied White’s motion for a new trial
without a hearing. It is from this judgment that White appeals.

       {¶12} White assigns two errors for review:

       I. The trial court erred in denying [White’s] motion for new trial, in
       violation of his due process rights under the U.S. and Ohio Constitutions.

       II. The trial court erred in not holding a hearing on [White’s] motion for
       new trial, in violation of his due process rights under the U.S. and Ohio
       Constitutions.

                                   II. Law and Analysis

                                 A. Motion for New Trial

       {¶13} In his first assignment of error, White argues that the trial court erred by

denying his motion for a new trial.

       {¶14} Crim.R. 33 governs motions for a new trial. Crim.R. 33(A)(6) provides

that a motion for a new trial on the ground of newly discovered evidence may be granted

only if that 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. Cannon, 8th Dist. Cuyahoga No. 103298, 2016-Ohio-3173, ¶ 15, citing State v.

Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus.

       {¶15} “A Crim.R. 33 motion for a new trial is addressed to the sound discretion of

the trial court and will not be reversed absent an abuse of discretion.” State v. Allen, 8th

Dist. Cuyahoga No. 103492, 2016-Ohio-7045, ¶ 8, citing State v. Schiebel, 55 Ohio St.3d

71, 77, 564 N.E.2d 54 (1990). An abuse of discretion implies the trial court’s attitude
was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 450 N.E.2d 1140 (1983).

       {¶16} When reviewing motions for a new trial, a trial court may weigh the

credibility of affidavits submitted in support of the motion in determining whether to

accept the affidavit as true statements of fact. State v. Taylor, 8th Dist. Cuyahoga No.

88020, 2007-Ohio-825, ¶ 15, citing State v. Coleman, 2d Dist. Clark Nos. 04CA43 and

04CA44, 2005-Ohio-3874.       Accord State v. Williams, 8th Dist. Cuyahoga No. 103257,

2016-Ohio-5403, ¶ 42.

       {¶17} In the instant matter, White filed his motion for a new trial based on newly

discovered evidence.    Specifically, he argued that he was entitled to a new trial based on

Johnson’s affidavit. As noted above, Johnson averred in his affidavit that White had no

involvement in the home invasion, shooting, or subsequent gun sale.

       {¶18} In the trial court’s January 20, 2017 judgment entry and opinion denying

White’s motion for a new trial, the court concluded, in relevant part:

       Although it is questionable whether the new evidence [White] relies
             upon in his motion for a new trial meets any of the
             requirements set forth in Petro, it is clear that it cannot satisfy
             the last two. [White’s] new evidence that he was not present
             when [the victim] was shot is contradicted by the evidence at
             trial. This was a bench trial with 33 witnesses testifying on
             behalf of the state of Ohio. Four of those witnesses placed
             [White] on scene at the time of the murder: Richard Harris,
             Lateef Taylor, Ashaka Johnson, and Kimmetta Sheeley. In
             addition, the state offered evidence of cell phone calls to and
             from [White’s] phone establishing that he was in the area of
             E. 99th Street in Cleveland, at the approximate time of the
             murder.
       Johnson’s affidavit contains hearsay statements of [Harris] which are
      directly contradicted by Harris’ own testimony at trial. * * * Johnson’s
      affidavit merely contradicts the evidence of White’s participation in the
      murder. Evidence that the court found links White to the crime. As it
      merely impeaches or contradicts evidence placing [White] at the scene of
      the crime, Johnson’s affidavit does not warrant a new trial on the basis of
      newly discovered evidence.

      The facts reported in Johnson’s affidavit are also cumulative to former
      evidence. The affidavit repeats facts established at trial, but with a
      pro-defendant twist designed to exculpate White from any involvement with
      the crime.     This is accomplished through the use of convenient,
      non-specific recollection of times, dates and names. * * *.

      The court finds the affidavit in support of [White’s] motion for a new trial
      lacking in credibility. In assessing the credibility of affidavit testimony in
      so-called paper hearings, the trial court should consider all relevant factors
      including: (1) whether the judge reviewing the post-conviction relief
      petition also presided at the trial, (2) whether multiple affidavits contain
      nearly identical language, or otherwise appear to have been drafted by the
      same person, (3) whether the affidavits contain or rely on hearsay, (4)
      whether the affiants are relatives of the petitioner, or otherwise interested in
      the success of the petitioner’s efforts, and (5) whether the affidavits
      contradict evidence proffered by the defense at trial. Moreover, a trial
      court may find sworn testimony in an affidavit to be contradicted by
      evidence in the record by the same witness, or to be internally inconsistent,
      thereby weakening the credibility of that testimony. State v. Calhoun, 86
      Ohio St.3d 279, 285, [714 N.E.2d 905] (1999).

      As previously stated, this was a bench trial involving this same court.
      There is only one affidavit to consider and that consists mainly of hearsay.
      Although the affiant is not a relative of [White], he is a convicted felon
      housed in the same institution as [White]. Finally, the statements
      contained in the affidavit are directly contradicted by the testimony and
      exhibits presented at trial. The statements are notably vague, and the
      highlighting of [White’s] absence at critical times in the narrative is suspect.

      {¶19} White directs this court to State v. Quinn, 2d Dist. Clark No. 2014-CA-95,

2016-Ohio-140, for the proposition that the first Petro factor should be given more

weight than the fifth and sixth factors because any new evidence supporting a motion for
a new trial is likely to impeach or contradict former evidence.    There, the appellate court

explained,

       “[w]hile Petro stands for the proposition that newly discovered evidence
       that merely impeaches or contradicts other evidence is not enough for a new
       trial, we do not read Petro as establishing a per se rule excluding newly
       discovered evidence as a basis for a new trial simply because that evidence
       is in the nature of impeaching or contradicting evidence. The test is
       whether the newly discovered evidence would create a strong probability of
       a different result at trial, or whether it is merely impeaching or contradicting
       evidence that is insufficient to create a strong probability of a different
       result.”

Id. at ¶ 14, quoting Dayton v. Martin, 43 Ohio App.3d 87, 90, 539 N.E.2d 646 (2d

Dist.1987).

       {¶20} Although the trial court concluded that Johnson’s affidavit failed to satisfy

the fifth and sixth Petro factors, a review of the record reflects that the newly discovered

evidence also fails to meet the first Petro factor, which states that a new trial may be

granted only if the newly discovered evidence “discloses a strong probability that it will

change the result if a new trial is granted.” Petro, 140 Ohio St. 505, 76 N.E.2d 370, at

syllabus.     Johnson was not an eyewitness to the murder and had no independent

information about the incident. Rather, everything that Johnson asserts in his affidavit

about the murder is what Harris allegedly told him.    The record is devoid of any affidavit

from Harris suggesting or implying that he falsely testified nor that he recanted his trial

testimony.

       {¶21} The state presented evidence at trial that (1) White and Harris forced their

way into the victim’s house intending to rob the victim of marijuana, (2) either White or
Harris shot the victim while inside, and (3) White and Harris subsequently sold the

murder weapon to Davis.      As this court noted on direct appeal, the evidence linking

White to the shooting was “overwhelming.” White, 8th Dist. Cuyahoga No. 101576,

2015-Ohio-2387, at ¶ 23.

      {¶22} Several witnesses who testified at trial, including Harris, Sheeley, Taylor,

and Ashaka Johnson, placed White either inside the victim’s house or at or near the

victim’s house when the murder took place.       White’s cell phone records, which were

presented at trial, indicated that he was in the area of the victim’s house at the

approximate time that the shooting occurred.     Furthermore, Harris’s and Davis’s trial

testimony both place White at the subsequent sale of the murder weapon.

      {¶23} Johnson’s affidavit merely impeaches and/or contradicts the testimony of

Harris, Taylor, Kimmetta Sheeley, Ashaka Johnson, and Davis. Furthermore, Johnson’s

affidavit merely contradicts White’s cell phone records.        The sworn testimony in

Johnson’s affidavit is contradicted by the testimony of eyewitnesses who observed not

only that White was with Harris and in the area of the victim’s house, but also that White

was inside the victim’s house when the shooting occurred.

      {¶24}    Pursuant to Petro, evidence that merely contradicts former evidence is not

sufficient under Crim.R. 33(A)(6).     “Evidence that merely impeaches or contradicts

evidence in the former trial is insufficient to support a motion for a new trial.” State v.

Howard, 8th Dist. Cuyahoga No. 101359, 2015-Ohio-2854, ¶ 54, citing Petro, 140 Ohio

St. at 509, 76 N.E.2d 370.
       {¶25} For all of these reasons, we find that the newly discovered evidence

contradicts evidence at trial.   Furthermore, in light of the direct and circumstantial

evidence linking White to the murder, there is not a strong probability that the new

evidence will change the result if a new trial is granted.   Accordingly, the trial court did

not abuse its discretion in denying White’s motion for a new trial.

       {¶26} White’s first assignment of error is overruled.

                                 B. Evidentiary Hearing

       {¶27} In his second assignment of error, White argues that the trial court erred by

denying his motion for a new trial without holding an evidentiary hearing.

       {¶28} Crim.R. 33 does not require a hearing on a motion for a new trial. State v.

Conner, 8th Dist. Cuyahoga No. 103092, 2016-Ohio-301, ¶ 23. “To warrant a hearing,

the newly discovered evidence must present a strong possibility that a new trial might

reach a different result.”       State v. Sailor, 8th Dist. Cuyahoga No. 100009,

2014-Ohio-1062, ¶ 16, citing       State v. Williams, 8th Dist. Cuyahoga No. 99136,

2013-Ohio-1905, ¶ 13.       The decision to conduct a hearing lies within the sound

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

Conner at ¶ 23, citing State v. Smith, 30 Ohio App.3d 138, 139, 506 N.E.2d 1205 (9th

Dist.1986).

       {¶29} In the trial court’s January 20, 2017 judgment entry and opinion denying

White’s motion for a new trial, the court concluded, in relevant part:

       The affidavit in support of [White’s] motion is not credible. In the court’s
       view it is a construct between the affiant and [White] tailored to satisfy the
       affidavit requirement of Crim.R. 33(A)(6). Based on its determination that
       the affidavit submitted in support of [White’s] motion for a new trial lacks
       credibility, the court finds that there is no need for an evidentiary hearing.

       {¶30} In the instant matter, White challenges the trial court’s credibility

determination regarding Johnson and his affidavit. Specifically, White suggests that

Johnson is credible because he and Harris are cousins and Johnson had no reasonable or

plausible reason to lie on White’s behalf.

       {¶31} White directs this court to State v. Beavers, 166 Ohio App.3d 605,

2006-Ohio-1128, 852 N.E.2d 754 (2d Dist.), in support of his argument that the trial court

erred by denying his motion without a hearing.       There, the appellate court held that a

hearing was necessary to resolve the issues in the defendant’s motion for a new trial

because (1) the judge who presided over the defendant’s trial and postconviction

proceedings retired, (2) the motion for a new trial was not ruled on until nearly five years

after it had been filed, and (3) the judge who reviewed the defendant’s motion for a new

trial had no firsthand knowledge of the trial testimony or testimony adduced during

postconviction proceedings.    Id. at ¶ 22.

       {¶32} The instant matter is readily distinguishable from Beavers. White was

convicted following a bench trial in 2014.    The same judge who presided over the bench

trial reviewed and denied White’s motion for a new trial.      White filed his motion for a

new trial in December 2016, and the trial court denied the motion in January 2017.

       {¶33} The Ohio Supreme Court has identified the following five factors that a trial

court should consider in assessing the credibility of the testimony in an affidavit:
      (1) whether the judge reviewing the postconviction relief petition also
      presided at the trial, (2) whether multiple affidavits contain nearly identical
      language, or otherwise appear to have been drafted by the same person, (3)
      whether the affidavits contain or rely on hearsay, (4) whether the affiants
      are relatives of the petitioner, or otherwise interested in the success of the
      petitioner’s efforts, and (5) whether the affidavits contradict evidence
      proffered by the defense at trial.

Calhoun, 86 Ohio St.3d at 285, 714 N.E.2d 905. “One or more of the Calhoun factors,

to the extent that any of them apply, may be sufficient to justify a conclusion that an

affidavit asserting information outside the record lacks credibility.”    Taylor, 8th Dist.

Cuyahoga No. 88020, 2007-Ohio-825, at ¶ 17.

      {¶34} In the instant matter, the first, third, and fourth Calhoun factors apply.

Regarding the first factor, as noted above, the same judge who presided over White’s

bench trial also reviewed and denied White’s motion for a new trial.       “‘[T]he acumen

gained by the trial judge who presided during the entire course of [the] proceedings

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

affidavit[s] and makes a time consuming hearing unnecessary.’” State v. Monk, 5th Dist.

Knox No. 03 CA 12, 2003-Ohio-6799, ¶ 20, quoting United States v. Curry, 497 F.2d 99,

101 (5th Cir.1974).

      “The trial judge is in a peculiarly advantageous position * * * to pass upon
      the showing made for a new trial. [The judge] has the benefit of observing
      the witnesses at the time of the trial, is able to appraise the variable weight
      to be given to their subsequent affidavits, and can often discern and assay
      the incidents, the influences, and the motives that prompted the recantation.
       [The judge] is, therefore, best qualified to determine what credence or
      consideration should be given to the retraction, and [the judge’s] opinion is
      accordingly entitled to great weight. If the rule were otherwise, the right
      of new trial would depend on the vagaries and vacillations of witnesses
      rather than upon a soundly exercised discretion of the trial court.”
Taylor v. Ross, 150 Ohio St. 448, 452, 83 N.E.2d 222 (1948), quoting State v. Wynn, 178

Wash. 287, 34 P.2d 900 (1934).

       {¶35} In this case, the reasoning set forth in Monk, Curry, and Taylor is even more

applicable because the trial court was also the factfinder.   Accordingly, the trial court,

who observed the witnesses testifying and, at the close of trial, found White guilty, was in

the best position to decide if a hearing on White’s motion for a new trial was necessary.

       {¶36} Regarding the third Calhoun factor, Johnson’s affidavit contains hearsay —

statements that Harris allegedly made to Johnson after the murder.    Regarding the fourth

factor, although Johnson is not a relative of White, White acknowledges that he and

Johnson are both housed at the Trumbull Correctional Institution where they became

acquainted.

       {¶37} White suggests that the trial court determined that Johnson was not credible

merely because he is a convicted felon: “Johnson’s criminal record should not be a

disqualifier as to [his] credibility.” Appellant’s brief at 9. Although the trial court did

acknowledge that Johnson is a convicted felon, the court’s judgment entry clearly reflects

that it did not make its credibility determination on that basis alone. The trial court

determined that the substance of Johnson’s affidavit lacked credibility.    The trial court

explained that the statements in Johnson’s affidavit were “notably vague” and questioned

Johnson’s highlighting of White’s absence at critical times. Furthermore, the trial court

determined that Johnson attempted to exculpate White by using “convenient, non-specific

recollection of times, dates and names.” For instance, Johnson did not recall the name
of Harris’s friend that allegedly went into the victim’s house with Harris, but Johnson

specified that this individual was not White.

       {¶38} Finally, we note that although Harris purportedly conveyed the information

to Johnson on the day of, or the day after, the December 22, 2012 murder, Johnson did

not disclose this information until executing his affidavit on November 16, 2016 —

nearly four years after the murder.   Johnson failed to provide any explanation, much less

a reasonable explanation, for this delay.

       {¶39} For all of the foregoing reasons, we cannot say that the trial court abused its

discretion in determining that Johnson’s affidavit testimony was not credible and that

White’s “newly discovered evidence” failed to disclose a strong probability that it would

change the result if a new trial were granted.      Thus, the trial court did not abuse its

discretion by denying White’s motion for a new trial without an evidentiary hearing.

       {¶40} White’s second assignment of error is overruled.

                                      III. Conclusion

       {¶41} After thoroughly reviewing the record, we find that White’s “newly

discovered evidence” does not meet the Petro criteria because it merely impeaches and

contradicts the evidence presented at his bench trial and would not change the outcome of

the trial if a new trial was granted. Thus, the trial court did not abuse its discretion in

denying White’s motion without an evidentiary hearing.

       {¶42} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.
       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

EILEEN T. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
