[Cite as State v. Petrone, 2013-Ohio-1138.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :     JUDGES:
                                               :
                                               :     Hon. Patricia A. Delaney, P. J.
                     Plaintiff-Appellee        :     Hon. W. Scott Gwin, J.
                                               :     Hon. John W. Wise, J.
-vs-                                           :
                                               :     Case No. 2012CA00096
ROBERT W. PETRONE                              :
                                               :
                                               :
                    Defendant-Appellant        :     OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas, Case No. 2010CR1481


JUDGMENT:                                          AFFIRMED



DATE OF JUDGMENT ENTRY:                            March 18, 2013



APPEARANCES:

For Appellant:                                       For Appellee:

NICHOLAS SWYRYDENKO                                  JOHN D. FERRERO, JR.
137 South Main St.                                   STARK COUNTY PROSECUTOR
Suite 206                                            KATHLEEN O. TATARSKY
Akron, OH 44308                                      110 Central Plaza South, Suite 510
                                                     Canton, OH 44702-1413
[Cite as State v. Petrone, 2013-Ohio-1138.]


Delaney, P.J.

        {¶1} Appellant Robert W. Petrone appeals from the April 18, 2012 Judgment

Entry of the Stark County Court of Common Pleas overruling his motion for leave to

file a motion for new trial on the basis of newly-discovered evidence. Appellee is the

State of Ohio.

                              FACTS AND PROCEDURAL HISTORY

        {¶2} This case arose on September 19, 2010 when appellant shot Kevin

Ciptak multiple times in the driveway of a tree farm in Jackson Township, Stark

County, Ohio. Appellant was ultimately convicted of one count of felonious assault

with a gun specification, and was acquitted of one count of attempted murder.

        {¶3} We have thoroughly reviewed the entire record as we are required to do

when reviewing a trial court’s decision upon a motion for new trial. In appellant’s first

direct appeal, we related the circumstances of the parties’ relationships and the facts

leading up to the shooting of Kevin Ciptak.             State v. Petrone, 5th Dist. No.

2011CA00067, 2012-Ohio-911. The facts as related here focus more specifically on

those relevant to appellant’s motion for leave to file a delayed motion for new trial.

                                 The Events of September 19, 2010

        {¶4} Appellant and his wife, Sue Petrone, have been separated since 2006.

Both attended high school with Kevin Ciptak. After the separation, Sue Petrone and

Ciptak had an on-and-off dating relationship.           Appellant and Sue Petrone have

children together and although they live in separate households, they live on the same

street in the same subdivision in Cuyahoga Falls, Ohio, about six houses away from

each other.
Stark County, Case No. 2012CA00096                                                     3


       {¶5} On September 19, 2010, Ciptak went to Brubaker’s Pub to watch the

Cleveland Browns game that started at 1:00 p.m. Sue Petrone came to meet Ciptak

late in the game and the two got into an argument. Sue Petrone left Brubaker’s;

Ciptak stayed briefly to pay his bill.

       {¶6} Upon leaving the bar, Ciptak decided to drive by Sue Petrone’s home to

“smooth things over” after the argument. Sue Petrone was home but had her house

“buttoned up” to look as though no one was home. Ciptak drove by and continued on

past appellant’s house.

       {¶7} Appellant was outside, having come home early from the Browns game.

Ciptak later said he waved at appellant; appellant said Ciptak “gave him the finger.”

Either way, shortly after Ciptak drove by, appellant decided to follow him.

       {¶8} Ciptak was traveling to a tree farm on Strausser Road in Jackson

Township, Ohio. He planned to tag trees he needed later for a landscaping job. His

route from Cuyahoga Falls took him south on Route 8. In downtown Cuyahoga Falls,

he first noticed appellant in his vehicle behind him.       Ciptak proceeded south on

Interstate 77, and appellant followed. Ciptak exited at Arlington Road with appellant

still behind him. Ciptak ignored appellant, assuming at some point he would turn

back. Ciptak came to a church parking lot on Arlington Road and pulled in to attempt

to get appellant “off his back.” Appellant did not follow him into the lot, and instead

proceeded straight on Arlington.         Ciptak turned around in the rear of the church

parking lot and exited.

       {¶9} Ciptak saw appellant waiting for him at the next intersection. Appellant

again fell in behind Ciptak, following him from a distance of 5 to 8 car lengths south on
Stark County, Case No. 2012CA00096                                                    4


Arlington Road. Ciptak drove to Strausser and turned right, pulling into the tree farm a

short distance up the road. Appellant continued straight on Strausser and did not

follow Ciptak into the driveway.

       {¶10} Ciptak drove down the long, narrow lane of the tree farm, observing

dense trees, a residence, and a barn. No one was around and Ciptak didn’t feel

comfortable getting out to tag trees as he had planned to do. When he reached the

barn, he backed up and turned around to head back out the driveway.

       {¶11} He met appellant in his vehicle coming down the driveway. The two

trucks stopped, “head to head.”        Appellant’s vehicle was about 6 to 8 feet away.

Ciptak put his truck in park and got out, screaming, “What are you trying to do? What

do you want?” Ciptak walked in front of his truck.

       {¶12} Appellant’s driver’s door was open. Ciptak later testified he saw the door

open and saw a gun pointed at him, but appellant never said a word. Ciptak looked at

the gun and heard a popping sound. He fell to the ground, and felt enormous pain.

                                   The Neighbor’s Account

       {¶13} Donna Allen lives at 8821 Strausser Road NW, Massillon (Jackson

Township), which is next door to Haines Tree Farm. Allen’s property is separated

from the tree farm by a wooden fence and a line of mature white pines. Her driveway

is parallel to the tree farm driveway.

       {¶14} On September 19, 2010, Allen was in a barn on her property, next to the

line of white pines, grooming her horses.        Allen heard a truck in the tree farm

driveway, which was slightly unusual because it was Sunday. She heard someone
Stark County, Case No. 2012CA00096                                                      5


yelling “What do you want, m-fer” several times.        Immediately after that, as Allen

described it, she heard five or six gunshots very quickly.

         {¶15} Allen had stepped out of her barn to ask the unknown persons to keep it

down because her kids were around, but when she heard the gunshots, she went

back into the barn, gathered her kids, and directed her husband to call 911.

         {¶16} Allen saw a white truck with a utility cap, later identified as appellant’s

vehicle, quickly back out of the tree farm driveway. Her husband went to the tree farm

to check out the scene and told her someone was hurt.            Allen and her husband

administered first aid to Ciptak, whom they found on the ground alive and conscious

but seriously injured.

                              The Aftermath of the Shooting

         {¶17} When first responders arrived, Ciptak was able to tell them he had been

shot by appellant. Ciptak was hospitalized for three weeks, having been shot in the

hand, biceps, and stomach. He has lasting nerve damage to his hand and at the time

of trial was still in occupational therapy.

         {¶18} Appellant, meanwhile, fled the area immediately after the shooting. He

stopped in Cuyahoga Falls and briefly made contact with his wife and daughter,

alarming Sue Petrone when he told her “it’s over.” She was not yet aware Ciptak had

been shot when appellant gave her the combination to a safe before leaving in his

truck.     She found this unusual and feared appellant was suicidal.            Appellant

subsequently traveled to Colorado and Texas before ultimately surrendering at the

Jackson Township Police Department.
Stark County, Case No. 2012CA00096                                                         6

                                  The Forensic Evidence

       {¶19} Appellee called forensic scientist Michael Short of the Stark County

Crime Lab as an expert witness at trial. The forensic evidence indicated Ciptak’s

clothing contained a number of bullet defects. His shirt contained three: one at the

lower hem to the right of the center (bullet entrance); an L-shaped defect on lower left

front of shirt to the left of center (bullet exit); and an elongated defect slightly below

and to the left of the second defect (bullet exit). Ciptak’s shorts contained a bullet

defect in the front, exhibiting the physical effects of a bullet exit: a linear defect with

fibers protruding from the inside out, as though stretched by passage of the bullet.

       {¶20} Short further testified over objection that Ciptak’s wounds were

consistent with the conclusions he drew from the clothing.           Appellee’s Exhibit 3A

depicted the wound to Ciptak’s abdominal region, an “elongated, irregular defect”

typical of an exit wound. Appellee’s Exhibit 3B depicted the wound to his hip/buttock

region. Short testified this injury is a circular defect indicative of the circular defect in

the back of the shirt.

                          The Trial Testimony of Dr. Boutsicaris

       {¶21} Dr. Peter S. Boutsicaris is a trauma surgeon at Mercy Medical Center

who treated Ciptak on September 19, 2010.           Boutsicaris noted an open bleeding

wound to the left lower abdomen spurting blood; a bleeding gunshot wound to the left

upper arm; and a gunshot wound to the right hand. When Boutsicaris encountered

Ciptak initially, the patient was “extremely critically ill” and was going into shock. He

was brought into surgery immediately. Ciptak would otherwise have died of blood loss
Stark County, Case No. 2012CA00096                                                     7


due to the active bleeding in his belly. Boutsicaris testified that multiple surgeons

worked on Ciptak to get his injuries under control.

      {¶22} Boutsicaris testified he is a trauma surgeon and as such his primary

focus in treating a patient is doing what is necessary to save a life. He does, however,

try to “guess” which way a bullet may have traveled inside the body for purposes of

treatment to determine what may have been injured in the bullet’s path. In this case,

Ciptak sustained an injury to his right back side and left lower abdomen which he

attributed to the path of a single bullet. At the time of treatment, entrance versus exit

was not relevant to Boutsicaris’ immediate lifesaving measures and thus his notes

were not precise. He emphasized that he is not trained in forensics.

      {¶23} At trial, however, Boutsicaris testified on direct he had reviewed the x-

rays again on the morning of trial, commenting that his notes were conflicting so he

wanted to take another look.         He stated he reviewed Ciptak’s CAT scan from

September 20 and determined the bullet entered back to front, right to left, based

upon several factors: bone fragments pushing inward toward the belly, two metal

fragments in the middle of the belly, placement of the buttock wound higher than the

belly wound, and the general positioning of the wounds consistent with the hand

wounds.

      {¶24} Boutsicaris repeatedly stated his conclusions were based upon

supposition:

               * * * *.

               [Dr. Boutsicaris:] So—and the other thing I paid attention to is on

               the CAT scan, it’s like looking at a slice –a bunch of sliced
Stark County, Case No. 2012CA00096                                                      8


           bologna where you’re looking at the body in slices going from top

           to bottom.

           And the one wound, the pelvic wound, the one—or the upper

           buttock was up high, and the one on the belly was down low which

           means the bullet would go high to low.

           Well, assuming two adults are involved in something and a person

           tends to shoot at waist level or higher, the natural tendency if a

           bullet’s going to enter is if it’s going to hit the buttock, it’s going to

           go and it’s like a downward pathway. So you got a bullet going

           downward unless the person was on the ground shooting upwards

           which doesn’t make sense.

           So the probabilities if two people are standing, bullet entering the

           buttock, going downward and the bullet and the fragments,

           everything points towards the entry being the pelvis on the right

           side and exiting the left abdomen.

           [Prosecutor:] Okay. So, in other words, back to front?

           [Dr. Boutsicaris:] Back to front.

           [Prosecutor:] And right to left?

           [Boutsicaris:] Right. And that goes along with the hand injuries,

           too.

           [Prosecutor:] And that is in spite of the fact that the records refer

           to entry and exit both ways?
Stark County, Case No. 2012CA00096                                                9


            [Boutsicaris:]    Yeah, I would say I was wrong in my initial

            impression because I—the guy comes in, I’m looking at the

            bleeding through the front and I’m not measuring the holes. And

            usually people get shot facing each other. So that’s, you know,

            supposition.

            [Prosecutor:] Okay. If you were to learn that a forensic expert

            had analyzed other evidence and come to the conclusion it was

            back to front—

            [Defense Trial Counsel:] Objection, Your Honor.

            The Court: Overruled.

            [Prosecutor:] --would you have any reason to disagree with that I

            guess based on your analysis of the medical records?

            [Dr. Boutsicaris:] I don’t have an opinion on that because I’ve

            never really had to analyze forensic evidence in comparison to

            what I do in my practice. So I’ve no experience in that so I really

            can’t say what I would say. I would have to look at the report to

            see if it fit my medical opinion.

            * * * *.

                       Appellant Claims He Fired in Self-Defense

      {¶25} Appellant testified on his own behalf at trial and presented a theory of

self-defense. He related an incident in 2008 in which Ciptak approached him at an

outdoor public event, asked what his problem was, and said he (Ciptak) was a “big

powerful man.” No physical confrontation occurred.
Stark County, Case No. 2012CA00096                                                  10


       {¶26} Regarding the incident on September 19, 2010, appellant said it began

when Ciptak drove past his house and gave him the finger. Appellant decided he

wanted to talk to Ciptak and admittedly followed him. Appellant claimed that when

Ciptak pulled into the church parking lot, he did not intend to stalk him further but

remained in the area because he, too, planned to check out a work site in the Jackson

Township area.     He admitted, though, that he saw Ciptak pull into the tree farm

driveway, and he pulled into the neighboring driveway, turned around, and then

entered the tree farm driveway himself.

       {¶27} Appellant claimed he came slowly down the driveway and saw Ciptak as

he crested a small hill, coming at him. Appellant said Ciptak “lunged” at him, catching

him by surprise. Appellant stopped. Ciptak got out of his truck but appellant remained

inside his. Appellant said Ciptak cursed at him, screaming, crossed in front of his

vehicle and came up on appellant’s driver’s side. Appellant said “Leave me and my

family alone,” but Ciptak came up to his door. Appellant claimed he told Ciptak to

back off but Ciptak persisted and reached into appellant’s door, which was partly

open. Appellant testified he grabbed his pistol, calm but cautious, describing Ciptak

as enraged. Appellant testified that when Ciptak reached into the truck, he pulled the

trigger, firing three shots without deliberation.

       {¶28} Appellant further stated after the shots were fired, Ciptak was able to

turn and run back to his vehicle. Appellant thought he was going to grab a weapon

and so appellant backed out of the driveway and left. He claimed to have no idea his

shots struck Ciptak; he didn’t intend to physically confront Ciptak and only fired the

gun to scare him. He did not call for help.
Stark County, Case No. 2012CA00096                                                      11


         {¶29} Appellant described his flight after the shooting as a trip to “get his head

clear.” He said he turned his cell phone off because he didn’t want to talk to anyone,

and was unaware Ciptak had been wounded.             He had problems with his truck in

Houston but did eventually turn himself in to the Jackson Township Police

Department.

               Indictment, Conviction, Appeal, and Motion for Leave to File
                              Delayed Motion for New Trial

         {¶30} Appellant was charged by indictment with one count of attempted murder

[R.C. 2903.02(A)/2923.02(A), a felony of the first degree] with a firearm specification

[R.C. 2941.145] and one count of felonious assault by means of a deadly weapon or

dangerous ordnance [R.C. 2903.11(A)(2), a felony of the second degree] with a

firearm specification [R.C. 2941.145]. Appellant entered pleas of not guilty and the

case proceeded to jury trial, whereupon appellant was found not guilty of attempted

murder with a firearm specification and guilty of felonious assault with a firearm

specification. The trial court sentenced appellant to an aggregate prison term of eight

years.

         {¶31} Appellant appealed from the judgment entry of his conviction and

sentence, raising five assignments of error. We affirmed the conviction in State v.

Petrone, 5th District No. 2011CA00067, 2012-Ohio-911, appeal not allowed, 132 Ohio

St.3d 1463, 2012-Ohio-3054, 969 N.E.2d 1231.

         {¶32} On February 17, 2012, appellant filed an “Application for Leave to File

Delayed Motion for New Trial (Hearing Requested)” on the grounds of newly-

discovered evidence. As new evidence, appellant cited “the analysis of the medical

records of [victim] Mr. Ciptak and the opinion therefrom stated in the affidavit of Daniel
Stark County, Case No. 2012CA00096                                                             12


J. Spitz, M.D., a Forensic Pathologist and Toxicologist, and the testimony that Dr.

Spitz would offer based upon his review and analysis of the substantial medical

evidence regarding….[Ciptak’s injuries].”          Appellant asserted the evidence was

discovered in the course of preparation for civil litigation. Appellant summarized the

newly-obtained evidence thusly: “In his affidavit, Dr. Spitz concludes…that to a

reasonable degree of medical/scientific certainty, the stomach-to-bullet wound

received by Ciptak entered from the stomach and exited through the buttock, in

diametric opposition to Dr. Boutsakaris’s (sic) testimony at trial.” Application for Leave

to File Delayed Motion for New Trial (Hearing Requested), 5. Dr. Spitz’s affidavit

asserts it is based upon his review of exhibits from the underlying criminal case,

including the photographs of Ciptak, Ciptak’s medical records, his radiologic records, a

“trial testimony summary,” and portions of the trial testimony of Ciptak and Dr.

Boutsicaris. The motion also includes an article from the JAMA, April 28, 1993, Vol.

269, No. 16, entitled “Clinicians’ Forensic Interpretations of Fatal Gunshot Wounds

Often Miss the Mark.”

       {¶33} The State responded with a motion in opposition and appellant replied.

       {¶34} On April 18, 2012, the trial court overruled appellant’s motion.

       {¶35} Appellant hereby appeals from the trial court’s judgment entry.

       {¶36} Appellant raises one1 Assignment of Error:



1
  Appellant makes two additional arguments, not separately assigned as error, and barred by
res judicata. He alleges the trial court improperly instructed the jury with respect to self-
defense and the Castle Doctrine, and asserts he received ineffective assistance of trial
counsel for, e.g., failure to obtain an expert witness to contradict Dr. Boutsicaris, failing to
request a continuance, and failing to object to the trial court’s jury instructions. We decline to
substantively address these arguments not properly before us. See App.R. 12(A)(1)(b);
16(A)(3)
Stark County, Case No. 2012CA00096                                                   13


       {¶37} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

FOR LEAVE TO FILE A MOTION FOR NEW TRIAL, AND IN THUS DENYING

REVIEW OF THE SUBSTANTIVE AND LEGAL MERITS OF A MOTION FOR NEW

TRIAL.”

                                            I.

       {¶38} Appellant argues the trial court erred in denying his motion for leave to

file a motion for new trial. We disagree.

       {¶39} Crim.R. 33 governs new trials. A motion for a new trial made pursuant to

Crim.R. 33 is addressed to the sound discretion of the trial court, and may not be

reversed unless we find an abuse of discretion. State v. Schiebel, 55 Ohio St.3d 71,

564 N.E.2d 54 (1990). An abuse of discretion implies that the trial court's judgment is

arbitrary, unreasonable, or unconscionable. State v. Sage, 31 Ohio St.3d 173, 510

N.E.2d 343 (1987).

       {¶40} Under Crim.R. 33(A)(6), a new trial may be granted when “new evidence

material to the defense is discovered, which the defendant could not with reasonable

diligence have discovered and produced at the trial.” Subsection (B) of Crim.R. 33

states, in relevant part, as follows:

              Application for a new trial shall be made by motion which, except

              for the cause of newly discovered evidence, shall be filed within

              fourteen days after the verdict was rendered, or the decision of the

              court where a trial by jury has been waived, unless it is made to

              appear by clear and convincing proof that the defendant was

              unavoidably prevented from filing his motion for a new trial, in
Stark County, Case No. 2012CA00096                                                      14


              which case the motion shall be filed within seven days from the

              order of the court finding that the defendant was unavoidably

              prevented from filing such motion within the time provided herein.

“[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.” State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d

859 (1984).

       {¶41} In this case, appellant based his motion on allegedly newly-discovered

evidence. Crim.R. 33(B) provides that motions for new trial on account of newly-

discovered evidence shall be filed within one hundred twenty days after the day upon

which the verdict was rendered or from the trial court's decision unless “it is made to

appear by clear and convincing proof that the defendant was unavoidably prevented

from the discovery of the evidence upon which he must rely.” Thus, an untimely

motion for new trial based on newly discovered evidence must show, by clear and

convincing proof, that the defendant was “unavoidably prevented” from discovering the

new evidence. State v. Fortson, 8th Dist. No. 82545, 2003-Ohio-5387 at ¶ 10.

       {¶42} Appellant’s argument to the trial court and upon appeal centers upon

whether the third bullet to strike Ciptak entered from the front (stomach region) or back

(hip/buttock region). Appellant argues this was the crucial issue for the jury’s rejection

of appellant’s self-defense argument. However, we disagree that the third-bullet issue

was the pivotal issue in the case; the jury could easily have rejected appellant’s self-

serving testimony about Ciptak reaching into the truck, and his theory of self-defense
Stark County, Case No. 2012CA00096                                                       15


overall, on a number of bases.       If we concede for the sake of argument that the

forensic testimony was the linchpin of the case that appellant maintains, we must

agree with the trial court and find appellant has failed to demonstrate by clear and

convincing evidence that he had “no knowledge of the existence of the ground

supporting the motion for a new trial and could not have learned of the existence of

that ground within the time prescribed for filing the motion for new trial in the exercise

of reasonable diligence.”

       {¶43} Appellant has not demonstrated why he could not have learned of Spitz’s

opinion, or the possible fallacies in the opinions of trauma surgeons, within the time

limitations of Crim.R. 33.    Appellant has not explained why it took him until the

preparation of his civil defense to rebut the forensic evidence presented by the State

in his criminal trial.

       {¶44} We further find appellant’s proffered evidence does not warrant the

granting of a new trial. To warrant the granting of a motion for a new trial on the

ground of newly discovered evidence, it must be shown that “the new evidence (1)

discloses a strong probability that it will change the result of a new trial if 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, 76 N.E.2d 370 (1947),

syllabus. We are required to review the issue of newly-discovered evidence from the

record as a whole, and having done that, we disagree with appellant that the proffered

affidavit of Dr. Spitz constitutes newly-discovered evidence within the meaning of
Stark County, Case No. 2012CA00096                                                   16


Crim.R. 33 as Dr. Spitz’ affidavit and accompanying journal article merely impeach or

contradict the State’s forensic evidence.

       {¶45} Accordingly, the trial court’s decision is neither unreasonable, arbitrary,

nor unconscionable, and the trial court did not abuse its discretion in overruling

appellant’s motion for leave to file a delayed motion for new trial.

       {¶46} Appellant’s sole assignment of error is overruled. The judgment of the

Stark County Court of Common Pleas is affirmed.

By: Delaney, P.J.

Gwin, J. and

Wise, J. concur.



                                         HON. PATRICIA A. DELANEY



                                         HON. W. SCOTT GWIN



                                         HON. JOHN W. WISE




PAD:kgb
[Cite as State v. Petrone, 2013-Ohio-1138.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                   :
                                                :
                                                :
                     Plaintiff-Appellee         :
                                                :
-vs-                                            :   JUDGMENT ENTRY
                                                :
ROBERT W. PETRONE                               :
                                                :
                                                :   Case No. 2012CA00096
                    Defendant-Appellant         :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                              HON. PATRICIA A. DELANEY



                                              HON. W. SCOTT GWIN



                                              HON. JOHN W. WISE
