[Cite as State v. Pullin, 2018-Ohio-4393.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                   JUDGES:
                                                 Hon. W. Scott Gwin, P.J
         Plaintiff – Appellee                    Hon. William B. Hoffman, J.
                                                 Hon. Craig R. Baldwin, J.
 -vs-
                                                 Case No. 2018CA00021
 KIP MARESE PULLIN

        Defendant – Appellant                    O P I N IO N




 CHARACTER OF PROCEEDINGS:                       Appeal from the Stark County Court of
                                                 Common Pleas, Case No. 2015-CR-
                                                 0042(B)



 JUDGMENT:                                       Affirmed


 DATE OF JUDGEMENT ENTRY:                        October 29, 2018


 APPEARANCES:


 For Plaintiff-Appellee                          For Defendant-Appellant

 JOHN D. FERRERO                                 KIP MARESE PULLIN, pro se
 Prosecuting Attorney                            Inmate No. A641-409
 Stark County, Ohio                              Richland Correctional Institution
                                                 P.O. Box 8107
 RONALD MARK CALDWELL                            Mansfield, OH 44901
 Assistant Prosecuting Attorney
 110 Central Plaza, South – Suite 510
 Canton, OH 44702-1413
Stark County, Case No. 2018CA00021                                                      2




Hoffman, J.


     {¶1}     Appellant Kip Marese Pullin appeals the judgment entered by the Stark

County Common Pleas Court overruling his motion for new trial. Appellee is the state of

Ohio.

                      STATEMENT OF THE FACTS AND CASE

     {¶2}     On December 22, 2014, Craig McCoy was living with Charles Benjamin at

902 Johnson Street located in Massillon, Ohio. He originally moved in about mid-

November. Chelsea Smith moved into the home in mid-December with her three

children, ages 10, 3 and 1. McCoy slept downstairs while the others slept upstairs.

McCoy knew Appellant's father, Kip A. Pullin, by sight. McCoy knew “Big Kip” since 1990.

McCoy also knew “Little Kip,” the appellant.

     {¶3}     On December 21, 2014, McCoy had gone to sleep downstairs. He was

suddenly awakened around seven o'clock the next morning when he heard the back

door to the residence “bust open.” As McCoy got up to see what was going on, Appellant,

who was wearing a hoodie, met him. McCoy did not recognize Appellant right away as

he was immediately shot by him and was wounded in his right arm. McCoy nonetheless

ran towards Appellant, grabbed him, and threw him to the ground. McCoy then struggled

with Appellant, trying to get the handgun away from him. As he was fighting, McCoy

realized his assailant was Appellant. McCoy then realized someone else was shooting

at him from behind. In order to protect himself, McCoy tried to use Appellant as a shield.

Many bullets were now being fired at him, and it was during this time McCoy realized Big
Stark County, Case No. 2018CA00021                                                    3


Kip was firing his handgun at him. McCoy also saw a third assailant, but he did not know

him, only noticing this third man had a lump on his eye.

     {¶4}   Appellant approached McCoy, who was lying on the floor, and shot him in

the face. McCoy also suffered from gunshot wounds to his side and his leg, as well as

the shots to his right arm. Leaving McCoy in a pool of his own blood, the three men ran

out of the house.

     {¶5}   Massillon Police Officer James Slutz arrived at the residence in response

to a 9–1–1 call. He was met by Charles Benjamin at the front door and was told someone

had been shot in his home. Officer Slutz found McCoy lying on the living room floor with

Chelsea Smith tending to him. Officer Slutz asked McCoy who had shot him, and McCoy

replied he did not know. Officer Slutz noticed McCoy was in pain and was holding his

face. Officer Slutz also asked Smith who had done the shooting, and she replied they

did not know. Both McCoy and Smith were short and brief with Officer Slutz. Massillon

Police Detective David McConnell soon arrived at the scene and attempted to interview

Benjamin, Smith, and McCoy. Smith appeared very nervous and frightened, and was not

providing McConnell with much information. The detective noticed Benjamin, who was

also very nervous and secretive, was whispering with Smith. McCoy also did not identify

any of the shooters for McConnell. Other Massillon police officers noticed Smith was

passive and rather quiet, while Benjamin was erratic, upset, and agitated.

     {¶6}   McCoy admitted at trial he did not tell Detective McConnell who had shot

him while he was at the scene. McCoy explained he was in shock because of what had

just happened to him, and it all seemed like a dream to him. Once the paramedics

arrived, McCoy was immediately taken to the hospital. Detective McConnell eventually
Stark County, Case No. 2018CA00021                                                     4


followed McCoy to the hospital, where he attempted to speak with McCoy. McCoy did

not offer who had shot him at this time. McConnell left his business card with McCoy's

son, and told him to have his father contact him when he was in better condition to talk.

     {¶7}    The Massillon police processed the crime scene, taking photographs of the

scene and of the evidence recovered. This evidence included spent shell casings and

bullets, some of which were .25 caliber. A search of the house turned up no weapons.

     {¶8}    McCoy was subsequently discharged from the hospital on Christmas Day

after being treated for his numerous gunshot wounds. McCoy went back to the same

residence and had Smith contact McConnell the next day. When McConnell arrived,

McCoy told the detective two of the three men who barged into the home and shot him

were the Pullins. With this information, McConnell obtained arrest warrants for both men

for the shooting.

     {¶9}    Later the same day, McCoy received a phone call from Benjamin's sister

(Candice Benjamin), who lived in the neighborhood, as did the Pullins. Upon receiving

this phone call, McCoy immediately called McConnell and told him the Pullins were

walking in the neighborhood near Walnut and 14th Streets. McConnell immediately

relayed this information over the radio, and Officer Slutz, who was on routine patrol at

this time, received this dispatch call. Officer Slutz knew both men had been developed

as suspects in the shooting of McCoy and there were now warrants for their arrest. As

other police approached, Big Kip immediately surrendered. He was placed under arrest

and a loaded .357 Magnum semiautomatic handgun was recovered from his waistband.

Appellant, however, fled the scene and a chase ensued. Officer Sean Dadisman chased

appellant through the neighborhood, losing him briefly after he jumped over a security
Stark County, Case No. 2018CA00021                                                        5


fence. Before reaching this fence, Officer Dadisman saw appellant throwing things away,

which were later recovered and determined to be his cap, an aerosol can containing

cash and drug paraphernalia, and a .45 caliber handgun. After getting around the fence,

Officer Dadisman resumed the chase, eventually losing sight of him as Appellant ran

between houses. Officer Joshua Edwards was searching the neighborhood for Appellant

when he saw him walking towards him. Officer Edwards ordered Appellant to stop, but

he replied he had already talked with the police in the area and he was good. Appellant

continued walking and Officer Edwards emphatically ordered him to stop. Upon doing

so, Appellant was placed under arrest.

     {¶10} Appellant's cousin, Marquez Smith, also lived in this neighborhood and

spotted the Pullins walking together. Smith had talked to Appellant a couple days earlier,

after the shooting, and noticed Appellant had a scratch on his nose. Smith asked his

cousin about it, and Appellant responded he got scratched while wrestling with someone.

After this conversation, Smith later talked with Appellant on the phone, and Appellant

told Smith he had shot McCoy. Smith was not sure if his cousin was just joking, but he

nonetheless knew the police were searching for Appellant. Thus, when he noticed the

Pullins walking and the police presence in the neighborhood, Smith opted to go into his

house, as he did not want any trouble with the police. About fifteen minutes later,

Appellant banged on his door, asking to be let him. Again, because of his own legal

troubles, Smith did not want to get involved so he refused to open the door. He relented,

however, and gave appellant different clothes to wear. Appellant changed into those

clothes, leaving his pants on the porch. After Appellant left, Smith eventually went outside
Stark County, Case No. 2018CA00021                                                     6


onto his porch, and found a .25 caliber handgun in a pocket of Appellant's pants. He

traded the gun to Philip Bledsoe in exchange for drugs.

     {¶11} Later the same night, Detective McConnell received another phone call from

McCoy. This time, McCoy told the detective Philip Bledsoe had come into possession of

the gun Appellant used during the shooting. McConnell told him he would come there to

retrieve it first thing next morning. When Detective McConnell arrived the next morning,

McCoy was not home. Charles Benjamin, however, gave the .25 caliber Ravens Arms

handgun to the detective.

     {¶12} A ballistics expert from the Ohio Bureau of Criminal Identification &

Investigation compared cartridges and bullets retrieved from the scene and McCoy. This

expert could not confirm or deny the recovered cartridges were fired from the recovered

.25 caliber handgun, mainly because of the particular characteristics of this handgun,

which make comparison difficult. The expert, however, was able to conclude within a

reasonable degree of scientific certainty two of the fired bullets which were recovered

were fired from this handgun, to the exclusion of all other handguns in the world.

     {¶13} Appellant was charged with one count of attempted murder with a firearm

specification, one count of felonious assault with a firearm specification, and one count

of carrying a concealed weapon. The case proceeded to jury trial in the Stark County

Common Pleas Court.

     {¶14} Chelsea Smith testified at trial she was awakened the morning of the

shooting by the noise from the back door, followed shortly by gunshots. After the fight

was over, she looked outside of her upstairs bedroom window and saw Appellant and

two other men running away from the back door. One of these two other men could have
Stark County, Case No. 2018CA00021                                                      7


been Big Kip. Smith admitted she did not initially tell the police this information out of

fear. However, once McCoy was released from the hospital, she opted to cooperate.

After the Pullins were arrested, Smith and McCoy left the home for their own safety.

     {¶15} Appellant was convicted of all charges. The trial court sentenced appellant

on the charge of attempted murder to 10 years. On the firearm specification, appellant

was sentenced to 3 years consecutive. The trial court merged the felonious assault

charge with the attempted murder charge, and the firearm specification was merged with

the previous firearm specification. The trial court sentenced appellant on the carrying

concealed weapon charge to 12 months, consecutive, resulting in an aggregate

sentence of 14 years. We affirmed the judgment on appeal to this Court. State v. Pullin,

5th Dist. Stark No. 2015CA00134, 2016-Ohio-1179.

     {¶16} On November 8, 2017, Appellant filed a motion for new trial pursuant to

Crim. R. 33(A)(6) on the grounds of newly discovered evidence. Attached to his motion

was the affidavit of Phillip Jerome Bledsoe, who averred he visited McCoy after he was

released from the hospital. McCoy told him someone tried to rob him. McCoy stated to

Bledsoe he did not know who it was, but he was going to say it was Big Kip and his son

because of something Big Kip did to him years ago.

     {¶17} The trial court held an evidentiary hearing on the motion. Bledsoe testified

McCoy told him he was going to blame Big Kip and Appellant for the shooting. He

testified he was not aware McCoy had in fact blamed the Pullins until he was in jail. He

admitted he made no effort to convey this information to anyone before trial, despite

having been contacted by Det. McConnell and being subpoenaed to testify at Appellant’s
Stark County, Case No. 2018CA00021                                                          8


trial. He testified all he said when he was brought from jail for Appellant’s trial was, “This

is B.S.” Tr. 25. Bledsoe and Appellant are in the same prison, and see each other daily.

     {¶18} Det. McConnell also testified at the hearing. He testified the Pullins were

arrested four days after the shooting, and this information was common knowledge in

Massillon. However, when he made contact with Bledsoe two months after the shooting,

he did not relay the information given to him by McCoy. Det. McConnell further testified

when Bledsoe was brought from the jail for Appellant’s trial, Bledsoe stated he was not

going to cooperate or talk to the detective.

     {¶19} The trial court overruled the motion for new trial. The court found the motion

was untimely. The court further found:



             The Court finds that Defendant has failed to demonstrate by clear

      and convincing evidence that Bledsoe’s alleged testimony would change

      the result of a new trial. At trial, the victim in the case, Craig McCoy, as well

      as another eyewitness, Chelsea Smith, both identified Defendant as the

      shooter.    In addition, the Court does not find Bledsoe’s testimony

      persuasive. First, he refused to assist with the investigation leading up to

      trial, at which time he would have had a clear opportunity to exonerate

      Defendant. Instead, he has consistently refused to speak to officers about

      this incident.   Mr. Bledsoe had the opportunity to contact Defendant’s

      counsel, the Stark County Sheriff’s Office, Massillon Police Department, or

      even the Court to advise them that there had been a miscarriage of justice
Stark County, Case No. 2018CA00021                                                      9


      and provide the information that he knew about the shooting. He chose to

      do nothing.

             Furthermore, Defendant’s counsel did have the opportunity to speak

      with Bledsoe. His name was provided in discovery by the State of Ohio as

      a potential witness. At the evidentiary hearing, all parties and Mr. Bledsoe

      acknowledged that Defense counsel at no time contacted Mr. Bledsoe. Mr.

      Bledsoe’s name appears frequently in the police report and in interviews

      that were turned over to defense counsel in discovery.          Bledsoe was

      brought back from prison for the trial and all counsel had the opportunity to

      interview him.



     {¶20} Judgment Entry, January 29, 2018.

     {¶21} The court also noted according to Bledsoe’s affidavit, Appellant’s father was

not involved in the shooting. However, “Big Kip” changed his plea to guilty during trial.

     {¶22} It is from the January 29, 2018 judgment of the court overruling his motion

for new trial Appellant prosecutes this appeal, assigning as error:



             DID THE TRIAL COURT ABUSE ITS DISCRETION, DENYING A

      NEW TRIAL BASED UPON SUBSTANTIAL, MATERIAL, ENTERED NEW,

      UNDISCOVERABLE STATE WITNESS AFFIDAVIT, TESTIMONY, THAT

      THE TRIAL TRANSCRIPT RECORD EVIDENCE, NOT ONLY WAS

      UNDISCOVERABLE, BUT TRUE, EVIDENCING TWO STAR STATE

      WITNESSES IDENTITY TESTIMONY WAS INTENTIONAL [SIC] FALSE,
Stark County, Case No. 2018CA00021                                                    10


     AND THE STATE KNEW “IT,” INTENTIONALLY DECEIVING THE JURY

     AND WITH DEFENDANT DUE PROCESS RIGHTS TO A FAIR TRIAL,

     VIOLATED IN THE PROCESS?



    {¶23} Crim. R. 33 governs motions for new trial and provides in pertinent part:



            (A) Grounds. A new trial may be granted on motion of the defendant

     for any of the following causes affecting materially his substantial rights:

            (6) When new evidence material to the defense is discovered which

     the defendant could not with reasonable diligence have discovered and

     produced at the trial. When a motion for a new trial is made upon the ground

     of newly discovered evidence, the defendant must produce at the hearing

     on the motion, in support thereof, the affidavits of the witnesses by whom

     such evidence is expected to be given, and if time is required by the

     defendant to procure such affidavits, the court may postpone the hearing of

     the motion for such length of time as is reasonable under all the

     circumstances of the case. The prosecuting attorney may produce affidavits

     or other evidence to impeach the affidavits of such witnesses.

            (B) Motion for New Trial; Form, Time. 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
Stark County, Case No. 2018CA00021                                                        11


      unavoidably prevented from filing his motion for a new trial, in 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.

             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 the decision of the court where trial by jury has been

      waived. If 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, such motion shall be filed within seven days from

      an order of the court finding that he was unavoidably prevented from

      discovering the evidence within the one hundred twenty day period.



     {¶24} Although not timely filed, the trial court granted Appellant leave to file a

motion for new trial on November 1, 2017.

     {¶25} To warrant the granting of a motion for a new trial in a criminal case based

on newly discovered evidence, the defendant must show the new evidence (1) discloses

a strong probability 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, 76 N.E.2d 370, syllabus (1947).
Stark County, Case No. 2018CA00021                                                        12


       {¶26} The decision whether to grant or deny a motion for a new trial is committed

to the sound discretion of the trial court. See State v. LaMar, 95 Ohio St.3d 181, 201,

767 N.E.2d 166 (2002); State v. Williams, 43 Ohio St.2d 88, 330 N.E.2d 891 (1975),

paragraph two of the syllabus. Thus, we will not reverse a trial court's denial of a motion

for a new trial absent an abuse of discretion. LaMar, 95 Ohio St.3d at 201, 767 N.E.2d

166.     An abuse of discretion is more than an error in judgment; instead, it implies a

court's ruling is unreasonable, arbitrary, or unconscionable. See, e.g., Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶27} We find the trial court did not abuse its discretion in finding Appellant failed

to demonstrate a strong probability Bledsoe’s testimony would change the result if a new

trial is granted. Bledsoe testified McCoy told him shortly after his discharge he planned

to tell police Appellant and his father committed the shooting although he did not know

who committed the shooting. However, Bledsoe failed to disclose this information to the

authorities despite having multiple opportunities to do so, including when he was brought

from the jail during Appellant’s trial. Rather, he kept this information to himself until he

began seeing Appellant daily at the jail. Further, his testimony was McCoy planned to

wrongfully pin the crime on Appellant and his father. Appellant’s father entered a guilty

plea, admitting to his role in the shooting, which undermines Bledsoe’s claim McCoy

fabricated the story of the involvement of “Big Kip” and Appellant in the crimes.

       {¶28} Further, in our opinion on Appellant’s direct appeal, we found evidence

other than McCoy’s testimony supported the jury’s verdict of conviction:
Stark County, Case No. 2018CA00021                                                      13


                 In the case at bar, McCoy testified that appellant shot him. (1T. at

      151–155). Marques Smith testified that appellant admitted to shooting

      McCoy. (1T. at 192). Appellant asked Smith for a change of clothes and left

      the .25 caliber handgun on Smith's porch with his clothing. (1T. at 196–197).

      Evidence was presented during appellant's jury trial that two of the fired .25

      caliber bullets found at the home on the night of the attack were fired from

      this gun. (2T. at 391–392). Officer Sean Dadisman chased appellant and

      observed him throw a loaded .45 caliber handgun from his person. (1T. at

      260; 272–273).



     {¶29} Pullin, supra, ¶ 28.

     {¶30} In addition, we find the court did not abuse its discretion in finding the

evidence is not such as in the exercise of due diligence could not have been discovered

before trial. Defense counsel had the opportunity to speak with Bledsoe, as his name

was provided in discovery by the State of Ohio as a potential witness. In addition,

Bledsoe’s name appears frequently in the police report and in interviews provided to

defense counsel in discovery. Bledsoe was brought back from prison for the trial and all

counsel had the opportunity to interview him.

     {¶31} We find no abuse of discretion in the judgment overruling Appellant’s motion

for new trial.
Stark County, Case No. 2018CA00021                                            14


     {¶32} The assignment of error is overruled. The judgment of the Stark County

Common Pleas Court is affirmed. Cost are assessed to Appellant.




By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur
