[Cite as State v. Garn, 2019-Ohio-1604.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                         Plaintiff-Appellee    :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 18CA71
MICHAEL L. GARN                                :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Richland County
                                                   Common Pleas Court, Case No. 15-CR-197

JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            April 29, 2019



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

GARY BISHOP                                        ALLISON HIBBARD
PROSECUTING ATTORNEY                               1200 West 3rd St.
BY: JOSEPH SNYDER                                  Cleveland, OH 44113
ASSISTANT PROSECUTOR
38 South Park Street
Mansfield, OH 44902
[Cite as State v. Garn, 2019-Ohio-1604.]


Gwin, P.J.

        {¶1}     Defendant-appellant Michael Garn [“Garn”] appeals the July 17, 2018

 Judgment Entry of the Richland County Court of Common Pleas denying his petition

 for post-conviction relief [hereinafter, “PCR petition”] after an evidentiary hearing.

                                           Facts and Procedural History

        {¶2}     Garn was employed as a police officer with the Mansfield Police

 Department. A jury convicted Garn on numerous counts including: unauthorized use of

 LEADS, dereliction of duty, tampering with evidence, sexual battery and menacing by

 stalking. We affirmed Garn’s convictions and sentences. See, State v. Garn, 5th Dist.

 Richland Nos. 16CA26, 16CA31, 2017-Ohio-2969, 91 N.E.3d 109. [Hereinafter, “Garn,

 I”]. The Ohio Supreme Court declined to review Garn’s case. See, State v. Garn, 152

 Ohio St.3d 1406, 2018-Ohio-723, 92 N.E.3d 878(Table). Garn filed an Application to

 Reopen pursuant to App. R. 26(B) on or about August 17, 2017 that was overruled on

 October 12, 2017.

        {¶3}     On or about September 5, 2017, Garn filed a Petition to Vacate or Set

 Aside Sentence Pursuant to R.C. 2953.21. Garn’s petition for post-conviction relief

 raised three claims.          The first and second claims for relief addressed discovery

 violations. The first claim for relief asserted that the Richland County Prosecutor's

 Office failed to provide defense counsel with favorable evidence. The second claim for

 relief asserted that the state deliberately failed to provide exculpatory materials. In the

 third claim for relief, Garn argued ineffective assistance of trial counsel, Ms. Corral,

 with regard to her failure to interview a material witness, Brandy Vance.
Richland County, Case No. 18CA71                                                                       3


        {¶4}    Prior to the hearing on Garn’s PCR petition and in the hearing itself, the

 state introduced two exhibits and Garn introduced twenty. Garn’s Exhibits 3, 4, 5, 6,

 10, and 16 were not admitted into evidence, as they were unauthenticated affidavits.

 The parties stipulated that Garn’s Exhibits 7, 12, 13, 14, and 15 came from the

 Richland County Prosecutor's Office pursuant to a public records request. (2PCR T. at

 2621). There was also a stipulation that Garn’s Exhibits 1, 8, 9, and 11 came from the

 Mansfield Police Department pursuant to a public records request. (2PCR T. at 262-

 263). Finally, state's Exhibit 1 came from the FBI. (2PCR T.at 168-169). As noted by

 the trial court,

                A full hearing was held on the matter. Two hours of testimony was

        heard on January 17, 2018 and then three more days of testimony was

        heard on March 14, 15, and 16, 2018. The parties were then granted sixty

        days to submit written closing arguments.

Judgement Entry Overruling Petition For Post-Conviction Relief, filed July 17, 2018 at 1.

[Hereinafter referred to as “PCR Judgment Entry”].

        {¶5}    On or about May 16, 2018 the state filed a post-hearing brief. Garn filed

 his post-hearing brief on or about May 29, 2018.

        {¶6}    The trial court overruled Garn's petition on or about July 17, 2018. The

 judgment entry contained 28 findings of fact, and 42 pages of conclusions of law.

                                        ASSIGNMENT OF ERROR

        {¶7}    Garn raises one assignment of error,



        1For clarity sake, the transcript of the hearing on Garn’s PCR petition will be referred to by
volume and page number as “PCR T.” and the Transcript of the jury trial will be referred to by volume and
page number as “T.”
Richland County, Case No. 18CA71                                                            4


      {¶8}       “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

PETITIONER'S PETITION FOR POST CONVICTION RELIEF.”2

       STANDARD OF APPELLATE REVIEW - POST-CONVICTION RELIEF.

      {¶9}       R.C. 2953.21(A) states in part,

                 (A)(1)(a) Any person who has been convicted of a criminal offense

      or adjudicated a delinquent child and who claims that there was such a

      denial or infringement of the person’s rights as to render the judgment void

      or voidable under the Ohio Constitution or the Constitution of the United

      States… may file a petition in the court that imposed sentence, stating the

      grounds for relief relied upon, and asking the court to vacate or set aside

      the judgment or sentence or to grant other appropriate relief.              The

      petitioner may file a supporting affidavit and other documentary evidence

      in support of the claim for relief.

      {¶10} Although designed to address claimed constitutional violations, the post-

conviction relief process is a civil collateral attack on a criminal judgment, not an

appeal of that judgment.            State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d

905(1999); State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67(1994). A petition

for post-conviction relief, thus, does not provide a petitioner a second opportunity to

litigate his or her conviction, nor is the petitioner automatically entitled to an evidentiary

hearing on the petition.           State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d

819(1980). State v. Lewis, 5th Dist. Stark No. 2007CA00358, 2008-Ohio-3113 at ¶ 8.

      {¶11} In State v. Gondor, the trial court held an evidentiary hearing on the

petition for post-conviction relief. Id. at ¶19. The Supreme Court noted,

      2   Merit Brief For Appellant, filed Nov. 20, 2018 at 1.
Richland County, Case No. 18CA71                                                         5


             A de novo review by appellate courts would relegate the

      postconviction trial court to a mere testimony-gathering apparatus.

      Nothing in R.C. 2953.21 indicates that that should be the case.

112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 56. The court in Gondor held,

             The court of appeals erred by using a de novo standard of review in

      reversing the trial court’s findings. We hold that a trial court’s decision

      granting or denying a post-conviction petition filed pursuant to R.C.

      2953.21 should be upheld absent an abuse of discretion; a reviewing court

      should not overrule the trial court’s finding on a petition for post-conviction

      relief that is supported by competent and credible evidence.

112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. An abuse of discretion can

be found where the reasons given by the court for its action are clearly untenable,

legally incorrect, or amount to a denial of justice, or where the judgment reaches an end

or purpose not justified by reason and the evidence.        Tennant v. Gallick, 9th Dist.

Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship of S.H., 9th Dist. Medina

No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking

No.2006–CA–41, 2006–Ohio–5823, ¶54.

      The Brady Claims.

      {¶12} Garn argues the trial court abused its discretion because                   the

prosecution’s failure to disclose the material attached to his Petition and presented

during the evidentiary hearing on that petition violated the United States Supreme

Court’s decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963).
Richland County, Case No. 18CA71                                                       6

      {¶13} In Youngblood v. West Virginia, the United States Supreme Court

summarized,

              A Brady violation occurs when the government fails to disclose

      evidence materially favorable to the accused. See 373 U.S., at 87, 83

      S.Ct. 1194. This Court has held that the Brady duty extends to

      impeachment evidence as well as exculpatory evidence, United States v.

      Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), and

      Brady suppression occurs when the government fails to turn over even

      evidence that is “known only to police investigators and not to the

      prosecutor,” Kyles, 514 U.S., at 438, 115 S.Ct. 1555. See id., at 437, 115

      S.Ct. 1555 (“[T]he individual prosecutor has a duty to learn of any

      favorable evidence known to the others acting on the government’s behalf

      in the case, including the police”). “Such evidence is material ‘if there is a

      reasonable probability that, had the evidence been disclosed to the

      defense, the result of the proceeding would have been different,’” Strickler

      v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)

      (quoting Bagley, supra, at 682, 105 S.Ct. 3375 (opinion of Blackmun, J.)),

      although a “showing of materiality does not require demonstration by a

      preponderance that disclosure of the suppressed evidence would have

      resulted ultimately in the defendant’s acquittal,” Kyles, 514 U.S., at 434,

      115 S.Ct. 1555. The reversal of a conviction is required upon a “showing

      that the favorable evidence could reasonably be taken to put the whole
Richland County, Case No. 18CA71                                                          7


      case in such a different light as to undermine confidence in the verdict.”

      Id., at 435, 115 S.Ct. 1555.

547 U.S. 867, 869-870, 128 S.Ct. 2188,165 L.Ed.2d 269(2006).

      Recanted Testimony.

      {¶14} Courts have noted, “‘[r]ecantation by a significant witness does not, as a

matter of law, entitle the defendant to a new trial.’” Hysler v. Florida, 315 U.S. 411,

413, 62 S.Ct. 688, 86 L.Ed. 932(1942) (“In this collateral attack upon the judgment of

conviction, the petitioner bases his claim on the recantation of one of the witnesses

against him. He cannot, of course, contend that mere recantation of testimony is in

itself ground for invoking the Due Process Clause against a conviction.”); State v.

Covender, 9th Dist. Lorain No. 07CA009228, 2008–Ohio–1453, ¶ 12, quoting State v.

Walker, 101 Ohio App.3d 433, 435, 655 N.E.2d 823 (8th Dist.1995). Implicit in these

standards is the fact that trial courts must evaluate credibility in deciding the motion. If

trial courts could not evaluate the credibility of recanted testimony, every recantation

after trial would result in a new trial.

      {¶15} The United States Supreme Court has observed,

              Recantation testimony is properly viewed with great suspicion. It

      upsets society’s interest in the finality of convictions, is very often

      unreliable and given for suspect motives, and most often serves merely to

      impeach cumulative evidence rather than to undermine confidence in the

      accuracy of the conviction. For these reasons, a witness’ recantation of

      trial testimony typically will justify a new trial only where the reviewing
Richland County, Case No. 18CA71                                                       8


      judge after analyzing the recantation is satisfied that it is true and that it

      will “render probable a different verdict.”

Dobbert v. Wainwright, 468 U.S. 1231, 1233–34, 105 S.Ct. 34, 82 L.Ed.2d 925 (1984)

(Brennan, J., dissenting from denial of certiorari). Recanting witnesses are viewed with

extreme suspicion. United States v. Willis, 257 F.3d 636, 645 (6th Cir.2001).

      A. Garn’s Petition and Supporting Evidence.

      {¶16} Nine documents submitted by Garn in support of his petition for PCR were

admitted during the hearing.

      1). Exhibit 1 – From Lt. Petrycki, Nov. 24, 2014.

      {¶17} Garn’s Exhibit One is a one-paragraph summary, typewritten on plain

paper by Lieutenant Joseph Petrycki. (2 PCR T. at 249-250). The exhibit provides,

      {¶18} November 24, 2014-0430

             On November 24, 2014 at approximately 0430 hours I was

      informed by the PSCC that CO Lapeer called in requesting to speak to the

      WC about an officer...I called her several minutes later at which time she

      told me that an inmate named Crystal [sic.] Sawyer has been telling

      several people that Officer Garn raped her and that there is a big

      investigation going on him. She then stated that another female inmate

      named Maggie Konzack [sic.] was overheard to make the same

      accusations about Officer Garn; however two of the female trustees

      (Loretta Chin & Ashley Schriner) overheard Maggie Konzack [sic.] telling

      Crystal Sawyer that it didn't really happen but that she is saying it to help

      Crystal's case.
Richland County, Case No. 18CA71                                                      9


             Lt. J.D. Petrycki #202

Garn’s PCR Exhibit 1; 1PCR T. at 37. The document was placed in Captain Snavely's

inbox, however no follow up investigation into the statements took place and the

document was not provided to Garn prior to trial. (2PCR T. at 250; 252 – 253; 255).

Captain Snavely could not recall receiving the document. (3PCR T. at 442-445). Garn

presented the testimony of Chin and Schriner during the evidentiary hearing on his

Petition. (2PCR T. at 219; 4T. at 495).

      a)). Garn’s arguments concerning Exhibit One.

      {¶19} Garn contends that “[n]ot only could the information have been used to

impeach Konczak, but it could have been used in cross-examination of Sawyer.” Merit

Brief For Appellant, filed Nov. 20, 2018 at 26. Garn submits that the testimony of

Schriner and Chinn “would cast serious doubt as to both Konczak’s credibility as well

as Sawyer’s.” Merit Brief For Appellant, filed Nov. 20, 2018 at 27(Footnote omitted).

Garn submits that the evidence submitted meets the “materiality test” for disclosure set

forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct,1194, 10 L.Ed.2d 215(1963). Merit

Brief For Appellant, filed Nov. 20, 2018 at 27.

      b)). Competent, credible evidence supports the trial court’s decision that

non-disclosure of Exhibit One did not violate Garn’s due process rights to a fair

trial; the impeachment evidence cannot reasonably be taken to put the whole

case in such a different light as to undermine confidence in the verdict.

      1]. Margaret Konczak.
Richland County, Case No. 18CA71                                                                  10


        {¶20} In the case at bar, with respect to Margaret Konczak3, Garn was convicted

 of Count 31 of the Indictment, Dereliction of Duty and Count 37 of the Indictment,

 Tampering with Evidence. The Bill of Particulars filed under seal on September 4, 2015

 alleged in Count 31 that Garner had been “handed drugs from a Corrections Officer

 recovered from Margaret Konczak.                  The defendant failed to log these drugs into

 evidence.” In Count 37 & 38, “Specifically with regard to Margaret Konczak and [A.M.]

 in disposing of drugs.”4

        {¶21} On June 11, 2014, Margaret Konczak and Brandy Vance attempted to

 steal a grill from a Kroger store in order to purchase heroin. Garn arrested Konczak

 and Vance and took them to the jail. (4T. at 114). While awaiting processing, Garn and

 Konczak engaged in conversation wherein Konczak admitted to an addiction with

 heroin. Garn began flirting with her. (4T. at 114).

        {¶22} At the jail, Correction Officer Hout processed Konczak and inventoried her

 possessions. During the inventory search of Konczak’s purse a prescription pill bottle

 was found. (4T. at 160). Upon opening the bottle, Hout found “a folded yellow piece of

 post-it pad paper.” (4T. at 160). Inside the paper was “[a] small hard rock of, like, a

 yellowish color.” (4T. at 160). In accordance with established protocol, Hout showed it

 to Sargent Young. (4T. at 161). Hout then called dispatch to have them send Garn

 back to the jail. (4T. at 161). When Garn returned Hout handed the substance to Garn.

 Garn asked to speak to Konczak so Hout opened the cell door. (4T. at 163). Konczak




        3    Margaret Konczak passed away before the evidentiary hearing on Garn’s PCR petition. 3PCR
T. at 336.
        4    The trial court merged Count 31 and Count 37 for sentencing. Garn, I, ¶ 7.
Richland County, Case No. 18CA71                                                        11


testified Garn approached her and quietly told her if she contacted him upon her

release, he would make the heroin go away. Konczak testified at trial,

                Officer Garn came into my jail cell and he says, Whose is this? And

        he said it was in the flowered bag, which it was mine. I said the flowered

        bag was mine but I didn’t know that I had it in there. He basically looked at

        me and said, If you get ahold of me when you get out of here, this goes

        away.

4T. at 116.

        {¶23} Garn told Hout he would take the substance back to have it tested. (4T. at

167; 8T. at 1117). However, when Hout spoke to Garn on a later date, Garn told Hout

he did not take it to the crime lab because Garn was sure it was baking soda. (4T. at

164).

        {¶24} Garn testified at trial he may have used “psychological factors” that could

be misinterpreted as flirting in order to get a suspect to become an informant. (8T. at

1110; 1169-171). Garn admitted being called back to the jail. (8T. at 1174). Garn

admitted talking to Konczak at the door of her cell. (8T. at 1174). Garn admitted that

he took the substance and did not turn it into the crime lab. (8T. at 1175). Garn testified

that he field tested the substance and the field test came back negative. He then

discarded the substance, believing it to be a cutting agent used for heroin. He testified

he never heard of a false-negative field test; therefore, did not want to waste time and

space. (8T. at 1117). He also testified he never heard from Konczak again. (Id.).

        {¶25} Officer Mike Napier of the Mansfield Police Department testified in March,

2014, the officers of the department were told to discontinue field testing. (7T. at 783).
Richland County, Case No. 18CA71                                                       12


He further testified any evidence acquired at the jail could not be thrown away, and had

to be sent to the crime lab. (Id.).

      {¶26} Anthony Tabasco, Director of the Mansfield Police Department forensic

science laboratory testified, in March, 2014, he emailed the officers of the department,

advising the officers to avoid handling heroin as the substance could contain fentanyl.

He stated the officers should discontinue field testing of drugs. (4T. at 18). On cross-

examination, the following exchange took place,

              [Defense Counsel]: If it tested negative and so it seemed pretty

      clear to them that it was NutraSweet, or aspartame, or something like that

      and then they tested it and it came out negative, are you saying that even

      in that situation there’s no discretion on the officer? That everything had to

      be turned in to your lab?

              Tombasco: Yes, they have to turn it all in to the lab.

4T. at 190.

      {¶27} Konczak never filed a formal complaint alleging that Garn’s had or

attempted to have sexual conduct or contact with her. Garn’s was not indicted for any

alleged sexual advance or crime in which Konczak was the alleged victim. Konczak

testified that she never contacted Garn after she was released from jail. (4T. at 120).

She never heard from Garn again. (4T. at 133). When asked why she had come

forward, Konczak testified

              I just spoke with another female that was telling me a story about

      Officer Garn. And it really kind of broke my heart, and I didn’t want her to
Richland County, Case No. 18CA71                                                        13


      go through it alone. So she asked if she could tell my story, and I told her

      yes. I don’t have anything to hide.

4T. at 121-122.

      {¶28} The evidence presented at the hearing on Garn’s PCR petition, if believed,

showed that Konczak might have lied to the inmates. Shortly thereafter Konczak had

compunction of conscience, an awareness of the wrongfulness of lying. (2PCR T. at

231). She was repentant and immediately confessed her lies to those whom she had

told. Both, Chinn and Shriner testified that Konczak was very upset and crying when

she confessed that she had lied. (2 PCR T. at 213; 234; 4PCR T. at 497; 504). In

contrast, Konczak never recanted the allegations that she made during her trial

testimony.

      {¶29} Aside from the multiple layers of hearsay contained in both the exhibit and

the testimony of Chinn and Schriner, the impeachment evidence as suggested by Garn

does nothing to impeach or call into question the testimony presented at trial that Garn

failed to submit the heroin to the crime laboratory for analysis. The jury heard Garn

testify that he field tested the substance. Because he determined that the substance

tested negative, he took it upon himself to throw it away and not charge Konczak. By

contrast, Special Agent Bryan Seamour from the FBI testified that Garn never

mentioned during his interview with the FBI that he had conducted a field test of the

substance removed from the pill bottle found in Konczak’s purse by Corrections Officer

Hout. (4T. at 213; 216). Apparently, the field test had been done in solitude as no

other witness testified to seeing the test, the results or the destruction of the evidence.

The jury had only Garn’s word that the substance has been destroyed.
Richland County, Case No. 18CA71                                                                                                   14


       {¶30} The record contains competent, credible evidence that the proper protocol

even when a field test yields a negative result is to submit the substance to the crime

laboratory for a definitive analysis. (4T. at 190; 6T. at 619-620; 7T. at 783). The focus

was correctly on Garn’s actions in disposing of the evidence instead of logging it into

evidence and submitting it to the crime lab.                                 There is no credible argument that

Konczak could “make up” those allegations.

       {¶31} In Garn’s direct appeal, we found that,

                    Viewing the evidence in a light most favorable to the prosecution,

       we find the jury did not lose it’s way in finding the essential elements of

       tampering with evidence proven beyond a reasonable doubt.

Garn, I at ¶62.

       {¶32} Whether Konczak told inmates at the jail that she had sexual contact or

sexual conduct with Garn in order to get out of jail and subsequently told inmates at the

jail that it was untrue, that evidence could not reasonably be taken to put the whole

case in such a different light as to undermine confidence in the verdict.

       2]. Krystal Sawyer.

       {¶33} Garn also argued that Ms. Schriner and Ms. Chin testified at the hearing

as to Krystal Sawyer reputation for untruthfulness around the jail. However, Garn’s

Exhibit One does not state that Krystal Sawyer said she made up the allegations5.

There is nothing about Krystal Sawyer in the memorandum other than that she was

telling people that Garn had raped her and there was a big investigation into the

allegation. She told Garn’s trial attorney and Garn’s private investigator the same


       5
           Krystal Sawyer’s statements are dealt with in more detail in our disposition of Garn’s Exhibit Seven and Exhibit 8, infra.
Richland County, Case No. 18CA71                                                                   15


details almost one year before the trial began in Garn’s case. (1 PCR T. at 78; State’s

Exhibit 2). In addition, Ms. Shriner testified that she never heard Ms. Sawyer say that

she was lying or ever heard of anything to indicate that she was lying. (2PCR T. at 230-

231).

        {¶34} Assistant prosecutor Omar Siddiq testified that he talked with Krystal

Sawyer a little bit about whether she recanted and how and what was going on.

(3PCR T. at 327-328).                   When asked if Sawyer took back her allegations, Siddiq

testified that,

                    Ultimately, no. She stuck with it. We had to have a long

        conversation about what took place and why that took place and told her

        that she would have to explain that on the stand and ultimately the jury

        would have to believe that she did that just to change her bond or not.

3PCR T. at 328.

        {¶35} Garn’s counsel questioned Ms. Sawyer about her attempt to recant her

allegations at trial. (6T. at 480).                      However, as Ms. Sawyer testified at trial her

threatened recantation was because she believed her $100,000 bond on a felony of

the fifth-degree was a direct result of her allegations against Garn and she thought

recanting would allow her to get out of jail. (6T. at 478-480).

        {¶36} Trial counsel for Garn and private investigators hired by Garn met with

Sawyer June 4, 20156. (1PCR T. at 78; State’s Exhibit 2). Sawyer reiterated the details

of her encounter with Garn during that interview. (State’s Exhibit 2). Her testimony at

trial was consistent with those details. In addition, Sawyer told counsel and the


        6   Garn’s jury trial commenced on April 4, 2016 and continued through April 14, 2016.
Richland County, Case No. 18CA71                                                        16


investigators that “she might have told people that she made this all up but she did

not”. (1PCR T. at 78-79; State’s Exhibit 2).

      {¶37} In State v. Ketterer, the Ohio Supreme Court found,

             Even assuming that Ketterer was entitled to such information,

      Ketterer knew about most of this information before his resentencing

      hearing. See State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767

      N.E.2d 166, ¶ 28, fn. 2 (no Brady violation occurs where a defendant

      knows of essential facts permitting him to take advantage of exculpatory

      information or where evidence is available from another source), citing

      United States v. Clark (C.A.6, 1991), 928 F.2d 733, 738; see also State v.

      Iacona (2001), 93 Ohio St.3d 83, 100, 752 N.E.2d 937, quoting United

      States v. Smith Grading & Paving, Inc. (C.A.4, 1985), 760 F.2d 527, 532 (“

      ‘No due process violation occurs as long as Brady material is disclosed to

      a defendant in time for its effective use at trial’ ”).

126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 36.

      {¶38} Accordingly, based upon the foregoing, the trial court did not abuse its

discretion in finding that the state’s failure to disclose the evidence set forth in Garn’s

Exhibit One and presented at the evidentiary hearing was not a Brady violation. The

impeachment evidence as presented by Garn cannot reasonably be taken to put the

whole case in such a different light as to undermine confidence in the verdict.

      {¶39} Garn was not denied his right to due process and fair trial under the Fifth,

Sixth and Fourteenth Amendments to the United States Constitution and Article I,

Sections 10 and 16 of the Ohio Constitution.
Richland County, Case No. 18CA71                                                                                      17

        2). Exhibit 7 – letter to the FBI from then Richland County Prosecutor Bambi

Couch-Page.7

        {¶40} Garn's Exhibit Seven is a letter dated July 22, 2015 that purports to be to

the FBI from then Richland County Prosecutor Bambi Couch-Page. It appears to be in

response to a “Touhy" request for the testimony of Agent Fisher.8 (PCR Exhibit 18).

        {¶41} The state entered into a stipulation that "Defendant's Exhibit 7 [the FBI

draft letter] was created by Miss Couch-Page or at her direction." (4PCR T. at 421-

422).

        a)). Garn’s arguments concerning Exhibit Seven.

        {¶42} Garn contends, “the state was aware of or in possession of, a number of

interviews in which the witnesses failed to inculpate Mr. Garn. This is evidenced by the

FBI Draft letter authored by Bambi Couch Page. Further, a January 15, 2015 report by

Lt. Petrycki states that ‘Detective Deitrich contacted me after her meeting with Krystal

Sawyer. The report indicates that on or about January 15, 2015 Sawyer was contacted

regarding her allegations against Mr. Garn.                               No such statement or summary was

turned over to the defense. (PC Exhibit 6).” Merit Brief For Appellant, filed Nov. 20.

2018 at 9.

        {¶43} Garn further argues, “The FBI draft letter provided through a public

records request indicates that favorable evidence was withheld by the state. It is the

contents of the FBI letter authored by Couch Page that violate both Brady and Napue

as the letter evidences an awareness of 'multiple interviews" which included

admissions by witnesses that they "lied." (PC Exhibit 7). Additionally, it notes that there

        7   Garn’s Exhibits 2 through 6 were affidavits that were not offered into evidence during the PCR hearing.
        8
            U.S. ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed.417 (1951).
Richland County, Case No. 18CA71                                                       18


were multiple "version of events" provided to law enforcement. The letter also states

that "upon first interview, many of the witnesses were reluctant to provide any sort of

inculpating information involving the defendant's criminal conduct." Id. The state

supplied one inculpatory interview from each witness victim and withheld any and all

interviews or summaries where witnesses/victims refused to inculpate Mr. Garn and/or

provided a different version of events. Kyles is clear that due process requires

disclosure of evidence that provides grounds for the defense to attack the reliability,

thoroughness, and good faith of the police investigation to impeach the credibility of the

state's witness or to bolster the defense's case against prosecutorial attacks. 534 U.S.

at 445-446.” Merit Brief For Appellant, filed Nov. 20, 2018 at 28

      b)). Competent, credible evidence supports the trial court’s decision that

non-disclosure of Exhibit Seven did not violate Garn’s due process rights to a fair

trial; the evidence cannot reasonably be taken to put the whole case in such a

different light as to undermine confidence in the verdict.

      {¶44} Garn’s Exhibit 7 is not substantive evidence that Brady material exists.

The record contains competent, credible evidence that the letter was never signed and

mailed to the FBI. (4PCR T. 533). The record contains competent, credible evidence

that the letter was a draft, a work-in progress. (4PCR T. at 533-534; 536; 538).     This

is evidenced by the typographical errors as for example,

      July 22, 2015

      Federal Bureau of Investigation

      FIRST NAME?? Curtis

      Associate Division Counsel
Richland County, Case No. 18CA71                                                       19


      And, also,

      WRITE A DESCRIPTION OF AGENT FISHER’S INVOLEMENT AND

      EXPLAINT WHY WE NEED HIS TESTIMONY



      {¶45} None of the facts in the letter appear to be representative of the facts of

Garn's case. Assistant Prosecutor at the time Clifford Murphy testified that the

language appeared to have been taken from a previous case involving human

trafficking in which the prosecutor’s office had recently sent a Touhy letter to the FBI.

(4PCR T. 533-537).

      {¶46} Assistant Prosecutor at the time Clifford Murphy testified that he spoke

with either Special Agent Fisher or Seamour and asked if the FBI did anything else in

Garn’s case, to which the agent replied, “No.” (4PCR T. at 539-540).

      {¶47} The record contains competent, credible evidence that the FBI turned over

all exculpatory evidence in its possession to the prosecutor’s office, who in turn gave it

to defense counsel in Garn’s case. State's Exhibit One is a letter from Special Agent

Gregory Curtis stating that the FBI "provided all relevant information related to the

Michael Garn investigation (including but not limited to Brady, Jencks, or Giglio

material)." This document was given to defense counsel. (4PCR T. at 539).

      {¶48} Special Agent Bryan Seamour testified during Garn’s jury trial. Seamour

testified that he and Special Agent Grady Fisher conducted a tape-recorder interview of

Garn. (4T. at 206).    Seamour did not testify that he or Special Agent Grady had

interviewed any other witness. A transcript of the interview was given to defense

counsel.
Richland County, Case No. 18CA71                                                      20


      {¶49} With respect to Krystal Sawyer, Assistant Prosecutor at the time Omar

Siddiq testified that he met with Krystal Sawyer when she was incarcerated in order to

prepare for Garn’s upcoming trial. (3PCR T. at 326). Sawyer never indicated that she

had been interviewed by the FBI to Siddiq. (3PCR T. at 326). He further testified to the

best of his knowledge, the only person the FBI interviewed was Garn. (3PCR T. at 326-

327). Around January 8, 2015, Sawyer had been arrested and taken to jail. (3T. at

368). Siddiq testified that Sawyer threatened to recant her allegations because Sawyer

believed that her bond in the new case was set too high. (3PCR T. at 327). She

believed it was because of her involvement in Garn’s case. (3PCR T. at 328-329).

Siddiq believed that Sawyer would testify truthfully at trial. (3PCR T. at 342).

      {¶50} Lieutenant Joy Stortz testified that she spoke to Sawyer in reference to

Sawyer overdosing on drugs. (3PCR T. at 366-367). The meeting did not occur in the

jail. (3PCR T. at 367). Nor did Lt. Stortz take a statement from Sawyer in preparing

her report dated January 8, 2015. (3PCR T. at 369; 380; Garn’s Exhibit 8).

      {¶51} Lieutenant Chad Brubaker testified that he met with Sawyer at the jail to

investigate whether Sawyer wanted to recant her allegations against Garn. (3PCR T. at

429-430). Sawyer was upset and threatening to recant because her bond was so high.

(3PCR T. at 432). Lt. Brubaker specifically testified,

      {¶52} But then I flat out asked her myself. I said, are you telling – are you

telling anybody that you’re lying, that you lied about a statement that you had

given? And she said, “No, I told the truth.”

3PCR T. at 431. Lieutenant Brubaker further testified,
Richland County, Case No. 18CA71                                                       21


               She didn’t want to recant her story. If she would have told me, no, I

      didn’t tell the truth in that statement, then we would have took [sic.] a

      second statement from her then.

3PCR T. at 434. Finally, Lieutenant Brubaker testified,

               Q.     And did you say anything to convince her not to change her

      story? Did you tell her – well, strike that.

               You explained to Krystal Sawyer that you could do nothing about

      her bond. Is that correct?

               [Lt. Brubaker]: Correct.

               Q.     And at that point, did Krystal Sawyer say that she had been

      telling the truth?

               [Lt. Brubaker]: Yes. I asked her, and she said she had told the

      truth.

3PCR T. at 435.

      {¶53} State’s Exhibit 2 is an Interview Summary prepared by the Lycurgus

Group, LLC, the private investigators that were hired by Garn. An investigator, Michael

Taylor, met with Krystal Sawyer at the Marysville Reformatory for Women on June 4,

2015. Sawyer told Taylor the same allegations she had made concerning Garn when

describing for Taylor what Garn had done to her. (State’s Exhibit 2).         Importantly,

Taylor noted, "Krystal said she might have told people she made this all up but she did

not.” (State’s Exhibit 2). Garn’s trial counsel admitted she was present during the

interview of Krystal Sawyer on June 4, 2015. (1PCR T. at 53; 78).
Richland County, Case No. 18CA71                                                         22


      {¶54} Further, Defense Counsel inquired into Sawyer’s recantation during

Garn’s trial,

                [Ms. Corral]: At a later date, did you tell a corrections officer that

      you tried to recant your story but they wouldn't let you?

                [Sawyer]: No.    I wanted to recant because I was in there on a

      felony five and my bond was $100,000. I thought that’s the reason why I

      was in jail for – I couldn’t get a good bond that I could pay because—

                [Ms. Corral]: Okay. But the question is, did you tell a corrections

      officer that you tried to recant?

                                                ***

                [Ms. Corral]: My follow-up is, did you tell a corrections officer that

      you wanted to recant?

                [Sawyer]: Yes.

                                                ***

                [Prosecutor Siddiq]: And the one time, as defense counsel says,

      that you asked to recant your statement was because you were in jail?

                [Sawyer]: Yes.

                [Prosecutor Siddiq]: Why did you feel recanting would help you?

                [Sawyer]: Because I thought that he was cool with everybody up

      here, so I thought maybe if I told them that it didn’t happen, that maybe

      they would lower my bond.

                [Prosecutor Siddiq]: Because you wanted to get out.

                [Sawyer]: Yes.
Richland County, Case No. 18CA71                                                     23


             [Prosecutor Siddiq]: And you thought that recanting your story

      would help you.

             [Sawyer]: Yes. Get out of jail.

             [Prosecutor Siddiq]:     Did you want to recant because it didn’t

      happen?

             [Sawyer]: No.

             [Prosecutor Siddiq]: Did you want to recant because you were

      making it up?

             [Sawyer]: No. I wanted to get out because I missed my kids. I

      didn't understand why my bond was so high. Even the CO said that they'd

      never seen that. And I asked people, Do you know of other inmates? And

      they said, Krystal, you know, if you tell them--

             MS. CORRAL: Objection.

                                               ***

             [Sawyer]:     The conclusion I got from, you know, gathering

      information was that if I said that, you know, it didn't happen -- because I

      thought it was his friends up here at the courthouse, you know he works

      with people up here. So I thought maybe it would help.

      {¶55} 6T. at 478-480.

      {¶56} Chief Kenneth Coontz testified that the only interview the FBI conducted

was with Garn. (3PCR T. at 483).

      {¶57} We find that the defense was aware nearly one year before the start of

Garn’s jury trial that Sawyer might have told people she made this all up but she did
Richland County, Case No. 18CA71                                                    24

not. See, State v. Ketterer, 126 Ohio St.3d 448,2010-Ohio-3831, 935 N.E.2d 9, ¶ 36

(“no Brady violation occurs where a defendant knows of essential facts permitting him

to take advantage of exculpatory information or where evidence is available from

another source.” citing United States v. Clark (C.A.6, 1991), 928 F.2d 733, 738). We

find no credible, substantive evidence that there were multiple witnesses who had

attempted to recant, or had lied, or had failed to inculpate Garn.

      {¶58} We find the record contains competent, credible evidence to support the

trial court’s decision. The evidence as presented by Garn cannot reasonably be taken

in to put the whole case in such a different light as to undermine confidence in the

verdict.

      {¶59} Therefore, the trial court did not abuse its discretion in finding that any

failure to provide Garn’s Exhibit Seven, or the information contained therein, to the

defense was not a Brady violation. Garn was not denied his right to due process and

fair trial under the Fifth, Sixth and Fourteenth Amendments to the United States

Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.

      3). Exhibit 8 – The “Garn Complaint” authored by Lieutenant Joy Stortz.

      {¶60} An incident allegedly occurred around January 8, 2015 and Lt. Stortz

noted on January 26, 2015 that the investigation had been closed without charges after

the complaining witness could not be located. (3PCR T. 372-373). Garn’s Exhibit 8 is

one typewritten page. It is on plain paper with no letterhead. It does not contain a

signature or a sworn verification.

      {¶61} The relevant portion of the summary provided that Lt. Stortz was told by

J.W. that M.J. called and said that Garn had appeared looking for Krystal Sawyer and
Richland County, Case No. 18CA71                                                      25


Krystal “is scared to death.” M.J. would not name the individual who allegedly told her

that Garn showed up at the relative’s house. Lt. Stortz determined that Krystal Sawyer

was incarcerated in the Richland County Jail. Lt. Stortz contacted Major Masi at the jail

and he contacted Detective Stacy Dittrich and requested Detective Dittrich go into the

jail and speak with Ms. Sawyer. Lt. Stortz noted that Krystal Sawyer was offered the

opportunity to go into protective custody in the jail and that Ms. Sawyer declined the

offer at the time.

      {¶62} Stortz never spoke to Sawyer concerning the events in Garn’s Exhibit 8.

(3PCR T. at 369).

       a)). Garn’s arguments concerning Exhibit Eight.

      {¶63} Garn’s trial attorney “never claimed” that State’s Exhibit Eight was

“exculpatory.” (2PCR T. at 141). Trial counsel argued that the fact that Krystal turned

down an offer to go into protective custody was “material.” (2 PCR T. at 141). Counsel

contended that the Exhibit evidences an interview with Sawyer that was not disclosed.

(1PCR T. at 58-59; 62-63). Among Counsel’s concerns were, “Why was she given an

opportunity to go into protective custody?” and “What was the purpose of that

meeting?”(1PCR T. 59).

      b)). Competent, credible evidence supports the trial court’s decision that

non-disclosure of Exhibit Eight did not violate Garn’s due process rights to a fair

trial; the evidence cannot reasonably be taken to put the whole case in such a

different light as to undermine confidence in the verdict.

      {¶64} The record contains competent, credible evidence that protective custody

while in jail meant being put in “isolation.” (2PCR T. at 140; 273; 3PCR T. at 372).
Richland County, Case No. 18CA71                                                      26


Further, the inmate in protective custody would not have the same level of privileges.

(4PCR T. at 541). Accordingly, it is equally credible that a desire not to go into

protective custody means Sawyer did not want to be put into isolation or give up her jail

privileges. It does mean Sawyer was not afraid of Garn. Further, Garn’s Exhibit Eight

is unclear as to whether Sawyer said she was “scared to death” or whether it was the

third party whom was reporting to the officers making this claim.

      {¶65} In Moore v. Illinois, the United State Supreme Court noted,

                  We know of no constitutional requirement that the prosecution

      make a complete and detailed accounting to the defense of all police

      investigatory work on a case.

480 U.S. 786, 795, 92 S.Ct. 2562, 33 L.Ed.2d 70(1972).

      The subject of whether undisclosed statements with Sawyer existed was

      extensively probed during the four-day evidentiary hearing on Garn’s PCR

      petition. The record contains competent, credible evidence that the state did not

      fail to disclose evidence materially favorable to Garn with respect to statements

      made by Sawyer or interviews conducted with Sawyer by law enforcement or the

      prosecutor’s office. Garn’s trial counsel and private investigators personally met

      and interviewed Krystal Sawyer on June 4, 2015. (PCR T. at 53; 78; State’s

      Exhibit 29). We find no credible, substantive evidence that there were multiple

      witnesses who had attempted to recant, or had lied, or had failed to inculpate

      Garn.




      9   Admitted into evidence at 4PCR T. at 604-605.
Richland County, Case No. 18CA71                                                        27


        {¶66} Accordingly, based upon the foregoing, the trial court did not abuse its

discretion in finding that the state’s failure to disclose the evidence set forth in Garn’s

Exhibit Eight and presented at the evidentiary hearing was not a Brady violation. The

evidence as presented by Garn cannot reasonably be taken to put the whole case in

such a different light as to undermine confidence in the verdict.

        {¶67} Garn was not denied his right to due process and fair trial under the Fifth,

Sixth and Fourteenth Amendments to the United States Constitution and Article I,

Sections 10 and 16 of the Ohio Constitution.

        4). Exhibit Nine – Summary prepared by Officer Rich Miller dated August 25,

2014.

        {¶68} Exhibit Nine is one typewritten page. It is on plain white paper without a

letterhead. It does not contain a signature. It does not contain a verification. It was

authored by Officer Rich Miller and dated August 25, 2014.

        {¶69} Exhibit Nine discusses a complaint between Ashley Matthews and a

doctor. In the document, it is noted that Ashley Matthews accused the doctor of trading

sex for prescription medications and alleged that the doctor was as corrupt as Garn.

Officer Miller documents that Matthews alleged that Garn had taken heroin and hidden

it from her or on her in an effort to coerce her into having sex with him.

        a)). Garn’s arguments concerning Exhibit Nine.

        {¶70} Concerning Exhibit Nine, Garn contends, “the state's failure to disclose

evidence related to these charges undermines confidence in the outcome of the trial as

a whole. The state was in possession of, and failed to produce, evidence that the

Matthews had made similar sexual allegations against a Doctor, which were
Richland County, Case No. 18CA71                                                        28


unfounded. A police report containing the same information was provided through a

public records request but not provided prior to trial. MPD Officer Rich Miller testified

that he drafted the complaint and turned it over, up the chain of command. (PC Tr. at

422-426).” Merit Brief For Appellant, filed Nov. 20. 2018 at 13.

      b)). Competent, credible evidence supports the trial court’s decision that

non-disclosure of Exhibit Nine did not violate Garn’s due process rights to a fair

trial; the evidence cannot reasonable be taken to put the whole case in such a

different light as to undermine confidence in the verdict.

      {¶71} The jury found Garn not guilty of all counts relating to Ashley Matthews. It

would be mere speculation that Garn’s Exhibit Nine would have had any effect on the

remaining charges unrelated to Matthews. It is also speculative as to whether this

evidence would have been admissible at his trial.

      {¶72} We note Garn’s re-trial on the Matthews allegations would be barred by

the principles of Double Jeopardy, the jury having found him not guilty. Therefore, on

any re-trial of the remaining charges, Garn’s Exhibit Nine would not be admissible.

      {¶73} Accordingly, based upon the foregoing, the trial court did not abuse its

discretion in finding that the state’s failure to disclose the evidence set forth in Garn’s

Exhibit Nine and presented at the evidentiary hearing was not a Brady violation. The

evidence as presented by Garn cannot reasonably be taken to put the whole case in

such a different light as to undermine confidence in the verdict. The jury found Garn

not guilty with respect to all counts involving Ashley Matthews.
Richland County, Case No. 18CA71                                                       29


      {¶74} Garn was not denied his right to due process and fair trial under the Fifth,

Sixth and Fourteenth Amendments to the United States Constitution and Article I,

Sections 10 and 16 of the Ohio Constitution.

      5). Exhibits Eleven, Twelve and Thirteen – Relating to STEP Logs; Exhibits

Fourteen - email relating to Allie Silliman and Garn’s Exhibit Fifteen case supplement

prepared by Captain Brett Snavely relating to Jamie Woods.

      {¶75} Garn’s Exhibit Eleven is an email from Captain Bret Snavely to defense

attorney Kimberly Corral sent prior to trial in response to her subpoena for records

related to the counts of LEADS violations. In the email, Captain Snavely indicated that

the Select Traffic Enforcement Program (STEP) logs for 2012 no longer existed but

that he provided the data that he did have for Garn for 2012, i.e. the dates Garn

worked STEP enforcement and how many contacts that Garn made in 2012. The 2013

STEP logs were located.

      {¶76} Garn’s Exhibit Twelve was stipulated as having come from the

prosecutor's office in a public records response. It is a single STEP log for Garn from

August 2, 2012 regarding the traffic stop for Kimberly McBride.

      {¶77} Garn’s Exhibit Thirteen is a four-page document from the prosecutor's

office detailing the LEADs counts including the alleged victim, date of offense, and

other information. It indicates that Count Eight for Kim McBride might need to be

dismissed as the STEP log indicated a stop and warning issued. This Exhibit was

compiled by a juvenile attorney in the prosecutor’s office to help in putting together the

Bill Of Particulars and to assist in presenting the case. 4PCR T. at 542-543.
Richland County, Case No. 18CA71                                                              30


       {¶78} Garn’s Exhibit Fourteen is an email to Patty Masi of the Richland County

Prosecutor's Office from Lt. Joy Stortz. The email was sent on March 20, 2015, which

was shortly after Garn was indicted in this case on February 26, 2015. In the email, Lt.

Stortz states that, "Allie Silliman is the replacement person, she is named in the original

complaint that I sent over and you will see her name on most of the paperwork."

       {¶79} Garn’s Exhibit Fifteen is a Case Supplemental Report prepared February

27, 2015. The document indicates that Captain Snavely spoke to Jamie Woods and

verified that the LEADs inquiry made on her was associated with a proper traffic stop.

        a)). Garn’s arguments concerning Exhibits Eleven, Twelve, Thirteen,

Fourteen and Fifteen.

       {¶80} Garn argues,

              Case notes reveal that the prosecution was aware that charges

            related to Jamie Wood and Kim Vandayberg McBride were not

            LEADS violations.         (PC Exhibits 12-15). The documentation

            establishes that the investigation revealed that the charges related to

            Vandayberg and [sic.]           McBride10 were legitimate and well

            documented traffic stops confirmed by the alleged victims.            These

            documents were favorable, were not turned over, and were material to

            the violations charged.

              Further, Lt. Stortz had expressed to the prosecution that the names

       which they asked her to investigate as LEADS violations were not LEADS

       violations. (PC Tr. at 374). Specifically, she indicated that McBride, Jamie


       10  It appears from the record that Kim Vandayberg McBride was one person not two separate
individuals.
Richland County, Case No. 18CA71                                                       31


      Wood, Sarah Mosier, and Mike Napier were not LEADS violations. (PC Tr.

      at 384). She testified that she notified them that her interviews resulted in

      a conclusion that there was not a violation. (PC Tr. at 394-395). Those

      interviews were not provided to the defense prior to trial. Nor were the

      supporting documents.

Merit Brief For Appellant, filed Nov. 20. 2018 at 13-14.

      {¶81} b)). Competent, credible evidence supports the trial court’s decision

that non-disclosure of Exhibits Eleven, Twelve, Thirteen, Fourteen and Fifteen

did not violate Garn’s due process rights to a fair trial; the evidence cannot

reasonable be taken to put the whole case in such a different light as to

undermine confidence in the verdict.

      {¶82} Lt. Stortz testified at the post-conviction hearing that she was given a list

of names to follow up with regarding the LEADs violations. (3PCR T. at 374). As part

of that investigation, she found that some of the original LEADS inquires that were

thought to be violations were not. (3PCR T. at 376-377). Lt. Stortz testified that she

believed there were violations that she believed should not have been charged. Lt.

Stortz found violations involving Allie Silliman that had not been charged as LEADS

violations in Garn’s case that Lt. Stortz felt should be charged. (3PCR T. art 375-376).

      {¶83} The state did not follow Lt. Stortz’s urging. The state did not charge Garn

with any LEADS violation regarding Allie Silliman nor did the state call her as a witness

during Garn’s trial. (4PCR T. at 547548; 550-553).

      {¶84} The only counts of the Indictment that occurred in 2012 were Count I,

December 8, 2012, Kelly Harding and Count VIII, August 2, 2012, Kim McBride. The
Richland County, Case No. 18CA71                                                         32


jury found Garn not guilty of Count I. (11T. at 1413). The state dismissed Count VIII

before trial.    (4PCRT at 544).    Count VII concerning Jamie Wood was likewise

dismissed by the state prior to trial. (4PCR T. at 544).

      {¶85} Sara Moser-Napier testified for the defense during Garn’s trial. (8T. at

1013). She testified that she was assigned to the canine unit of the Mansfield Police

Department. (8T. at 1020). Officer Moser-Napier worked and is friends with Garn. (8T.

at 1014). Garn was not indicted or charged with a LEADS violation with respect to

Officer Moser-Napier.

      {¶86} Based upon the evidence presented at trial, the jury found Garn guilty of

Count XI a LEADS violation involving Mike Napier. (9T. at 1305; 11T. at 1414). See,

Garn, I at ¶6; ¶33.

      {¶87} Competent, credible evidence was presented that no victim was

“substituted.”   The record indicates that Lieutenant Joy Stortz urged the state to

“substitute” Allie Silliman for Jamie Woods. (Garn’s Exhibit 14; Garn’s Exhibit 15; 3PCR

T. at 374-377). She further advocated dismissing charges relating to Kim McBride,

Sarah Moiser, Mike Napier and Jamie Wood. (3PCR T. at 385). However, the state did

not charge Garn with any LEADS violation regarding Allie Silliman nor did the state call

her as a witness during Garn’s trial. (4PCR T. at 547-548; 550-553).Garn was not

indicted or charged with a LEADS violation with respect to Officer Sarah Moser-Napier.

The charges relating to Wood and McBride were dismissed before trial. Based upon

the evidence presented at trial, the jury found Garner guilty of Count XI a LEADS

violation involving Mike Napier. (9T. at 1305; 11T. at 1414). See, Garn, I at ¶6; ¶33.
Richland County, Case No. 18CA71                                                        33


        {¶88} Any delay in dismissing Count VII and Count VIII was attributable to the

number of attorneys working on the case at any given time. (4PCR T. at 543-544; 553-

557). The state further consulted their LEADS expert. (4PCR T. at 550-552). The

state further made the LEADS CD/DVD available to the defense prior to trial. That item

listed all of Garn’s LEAD’s searches for the preceding four to five years. (4PCR T. at

545). This would include legitimate and improper uses of the system. (4PCR T. at

567).

        {¶89} Accordingly, based upon the foregoing, the trial court did not abuse its

discretion in finding that the state’s failure to disclose the evidence set forth in Garn’s

Exhibits Eleven, Twelve, Thirteen, Fourteen and Fifteen and presented at the

evidentiary hearing was not a Brady violation. The evidence as presented by Garn

cannot reasonably be taken to put the whole case in such a different light as to

undermine confidence in the verdict.

        {¶90} Accordingly, Garn was not denied his right to due process and fair trial

under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution

and Article I, Sections 10 and 16 of the Ohio Constitution by failing to turn over this

evidence. The record contains competent, credible evidence that the state did not act

in bad faith in failing to turn over any of the evidence relating to Garn’s Exhibit Eleven,

Twelve, Thirteen, Fourteen and Fifteen.

        6). Garn’s Napue Claims.

        {¶91} Garn also argued that based on Napue v. Illinois, 360 U.S. 264, 79 S.Ct.

1173, 3 L.Ed.2d 1217 (1959), his convictions were void and/or voidable. Garn claims

that this case stands for the notion that if the prosecutor was informed of the allegedly
Richland County, Case No. 18CA71                                                       34


favorable materials addressed above, and deliberately failed to provide the evidence to

the defense, then Garn’s due process rights are violated. Merit Brief For Appellant,

filed Nov. 20, 2018 at 28-29.

      a)). Competent, credible evidence supports the trial court’s decision that

the evidence failed to establish that the acts of the state were in “bad faith” or

deliberate; the evidence cannot reasonably be taken to put the whole case in

such a different light as to undermine confidence in the verdict.

      {¶92} In Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3L.Ed.2d 217(1959), “the

principal prosecution witness at Napue’s murder trial was an accomplice then serving a

sentence for the crime. He testified, in response to an inquiry by the prosecutor, that he

had received no promise of consideration in return for his testimony. In fact, the

prosecutor had promised him consideration, but he did nothing to correct the witness’

false testimony. This Court held that the failure of the prosecutor to correct the

testimony, which he knew to be false, denied Napue due process of law, and that this

was so even though the false testimony went only to the credibility of the witness.”

Moore v. Illinois, 408 U.S. 786, 797, 92 S.Ct. 2562, 33 L.Ed.2d 706(1972).

      {¶93} Garn’s Exhibit One does not support any inference that the state

knowingly used false testimony or knowingly allowed false testimony to go uncorrected.

      {¶94} The evidence does not show that Konczak’s trial testimony was false.

Konczak never recanted the allegations that she made during her trial testimony. The

impeachment evidence as suggested by Garn does nothing to impeach or call into

question the testimony presented at trial that Garn failed to submit the heroin to the
Richland County, Case No. 18CA71                                                          35


crime laboratory for analysis. Garn himself admitted he did not log the heroin into

evidence or submit it to the crime lab.

      {¶95} Krystal Stewart never testified inconsistently with her allegations.        She

never told Chin or Schriner that she had lied about Garn telling her that he would not

take her to jail if she had sex with him, or that she performed oral sex on Garn. Stewart

told defense counsel and Garn’s private investigators the same nearly one year before

trial. In addition, Stewart told defense and the private investigators about possibly

telling others that she had lied nearly one year before trial. The defense did in fact

question her on this subject at trial.

      {¶96} Garn’s Exhibit Seven does not support any inference that the state

knowingly used false testimony or knowingly allowed false testimony to go uncorrected.

The document is clearly a draft that was never revised, signed or sent by the state.

There is no evidence that Exhibit Seven was ever received by the FBI. As a draft it

was subject to revision and editing. Stewart told defense and the private investigators

about possibly telling others that she had lied nearly one year before trial. The defense

did in fact question her on this subject at trial.

      {¶97} The defense questioned Kelly Harding at trial concerning her reluctance to

testify and her desire to recant. Harding testified that she was telling the truth.11 (4T. at

263-264).       The defense was aware of Ms. Harding’s attempt to recant and cross-

examined her on that subject at trial. (4T. at 256-258; 260; 263).

      {¶98} There is no evidence that the state failed to provide material evidence

concerning any other witness. No affidavits, depositions or testimony from any of the

trial witnesses was presented during the hearing on Garn’s PCR petition.

      11   Kelly Harding is dealt with in more detail at No. 9, infra.
Richland County, Case No. 18CA71                                                       36


      {¶99} Garn’s Exhibit Eight does not support any inference that the state

knowingly used false testimony or knowingly allowed false testimony to go uncorrected.

The document was hearsay and the original complainant was never located. The fact

that Stewart declined protective custody is not evidence that is vital and material to the

issue of guilt or penalty.

      {¶100} Garn’s Exhibit Nine does not support any inference that the state

knowingly used false testimony or knowingly allowed false testimony to go uncorrected.

The jury found Garn not guilty of all counts relating to Ashley Matthews. It would be

mere speculation that Garn’s Exhibit Nine would have had any effect on the remaining

charges unrelated to Matthews.

      {¶101} Garn’s Exhibits Eleven, Twelve and Thirteen does not support any

inference that the state knowingly used false testimony or knowingly allowed false

testimony to go uncorrected. The only counts of the Indictment that occurred in 2012

were Count I December 8, 2012, Kelly Harding and Count VIII, August 2, 2012, Kim

McBride. The jury found Garn not guilty of Count I. The state dismissed Count VIII

before trial. (4PCR T. at 544).     Count VII concerning Jamie Wood was likewise

dismissed by the state prior to trial. (4PCR T. at 544). Based upon the evidence

presented at trial, the jury found Garn guilty of Count XI a LEADS violation involving

Mike Napier. (9T. at 1305; 11T. at 1414). See, Garn, I at ¶6; ¶33.

      {¶102} Garn’s Exhibits Fourteen and Fifteen do not support any inference that the

state knowingly used false testimony or knowingly allowed false testimony to go

uncorrected.    Garn was never indicted or tried on any allegation concerning Allie

Silliman. The state did in fact dismiss the count concerning Jamie Woods before trial.
Richland County, Case No. 18CA71                                                       37


      {¶103} Accordingly, based upon the foregoing, the trial court did not abuse its

discretion in finding that the state’s failure to disclose the evidence as submitted by

Garn in his PCR petition and presented at the evidentiary hearing was not a Brady or a

Napue violation. The evidence as presented by Garn cannot reasonably be taken to

put the whole case in such a different light as to undermine confidence in the verdict.

There is nothing in the record to demonstrate that the state presented false testimony,

failed to correct false testimony or destroyed evidence in bad faith. In the case at bar

we find no evidence that the state’s actions were nefarious or underhanded in seeking

to double check the allegations and the evidence before deciding to dismiss charges.

We find no credible, substantive evidence that there were multiple witnesses who had

attempted to recant, or had lied, or had failed to inculpate Garn.

      {¶104} Accordingly, Garn was not denied his right to due process and fair trial

under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution

and Article I, Sections 10 and 16 of the Ohio Constitution.

      7). Ineffective assistance of counsel – Failure to call Brandy Vance at trial.

      {¶105} Garn argues that the testimony of Brandy Vance contradicted Konczak's

trial testimony. Merit Brief For Appellant, filed Nov. 20, 2018 at 6. Garn claims Vance

testified at the PCR hearing that Garn was not inappropriate and did not make her feel

uncomfortable. Vance testified, according to Garn, that she never knew Konczak to

keep drugs in her purse.       Id. Garn contends that Konczak “only presented her

allegations after hearing [Krystal] Sawyer’s story…” Merit Brief For Appellant, filed Nov.

20, 2018 at 31. Vance was listed as a State’s witness in Discovery and Defense

Counsel failed to interview her. Merit Brief For Appellant, filed Nov. 20. 2018 at 30.
Richland County, Case No. 18CA71                                                          38

Garn submits this could not be construed as a strategic decision. Merit Brief For

Appellant, filed Nov. 20. 2018 at 30-31.

      a)). Competent, credible evidence supports the trial court’s decision that

the evidence failed to impeach Konczak’s testimony in any material respect; the

evidence cannot reasonably be taken to put the whole case in such a different

light as to undermine confidence in the verdict.

      1]. Ineffective Assistance of Counsel.

      {¶106} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant.      The second prong is whether the appellant was

prejudiced by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct.

838, 122 L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).

      {¶107} In order to warrant a finding that trial counsel was ineffective, the petitioner

must meet both the deficient performance and prejudice prongs of Strickland and

Bradley. Knowles v. Mirzayance, 556 U.S. 111, 122-123; 129 S.Ct. 1411, 173 L.Ed.2d

251(2012).

      {¶108} The United States Supreme Court discussed the prejudice prong of the

Strickland test,

             With respect to prejudice, a challenger must demonstrate “a

      reasonable probability that, but for counsel’s unprofessional errors, the

      result of the proceeding would have been different.             A reasonable
Richland County, Case No. 18CA71                                                          39


      probability is a probability sufficient to undermine confidence in the

      outcome.” Id., at 694, 104 S.Ct. 2052. It is not enough “to show that the

      errors had some conceivable effect on the outcome of the proceeding.”

      Id., at 693, 104 S.Ct. 2052. Counsel’s errors must be “so serious as to

      deprive the defendant of a fair trial, a trial whose result is reliable.” Id., at

      687, 104 S.Ct. 2052.

             “Surmounting Strickland’s high bar is never an easy task.” Padilla

      v. Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284

      (2010). An ineffective-assistance claim can function as a way to escape

      rules of waiver and forfeiture and raise issues not presented at trial, and

      so the Strickland standard must be applied with scrupulous care, lest

      “intrusive post-trial inquiry” threaten the integrity of the very adversary

      process the right to counsel is meant to serve. Strickland, 466 U.S., at

      689–690, 104 S.Ct. 2052. Even under de novo review, the standard for

      judging counsel’s representation is a most deferential one. Unlike a later

      reviewing court, the attorney observed the relevant proceedings, knew of

      materials outside the record, and interacted with the client, with opposing

      counsel, and with the judge.       It is “all too tempting” to “second-guess

      counsel’s assistance after conviction or adverse sentence.” Id., at 689,

      104 S.Ct. 2052; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843,

      152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113

      S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney’s

      representation amounted to incompetence under “prevailing professional
Richland County, Case No. 18CA71                                                    40


      norms,” not whether it deviated from best practices or most common

      custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.

Harrington v. Richter, 562 U.S.86, 104-105, 131 S.Ct. 770, 178 L.Ed.2d 624(2011).

      2]. Brandy Vance testimony does not contradict Konczak’s trial testimony.

      {¶109} Brandy Vance does not contradict Konczak’s testimony that she forgot she

had heroin in her purse. Vance testified at the hearing on Garn’s PCR petition as

follows,

             Q.       Okay. Were you aware that there were drugs in Maggie's

      purse?

             A.       No.

             Q.       So as far as you know, there were not drugs in Maggie's

      purse?

             A.       No. Why wouldn't we have done them? I know somebody

      said that. I don't know if there was. Maybe she was greedy, putting stuff

      back. But as far as I knew, no, because, like, before we walked in, I put

      my rings and everything in the car. I never walked in a store with them in

      case we did get caught so I didn’t have anything on me. She would do the

      same. We drove in, and I told him we took the bus because I wasn’t

      having my car searched because there was a lot of stuff in there.

                                              ***

             Q.       Okay. So it's really unlikely that she would have had drugs

      in her purse?
Richland County, Case No. 18CA71                                                        41

               A.     I mean, I don't think, but she could have. Do you know what

      I mean?

               Q.     Okay.

               A.     Did I watch her put drugs in her purse? Did I know of them?

      No.

               Q.     So when you said I don't know if there was drugs in Maggie's

      purse, you're telling the truth?

               A.     Like, I never seen it, but it could have been, you know.

               Q.     And I was going to ask you that too. That's twice now you

      said I don't think so but she could have.

               A.     Yeah.

               Q.    And you're telling the truth?

               A.     Yeah.

3PCR T. at 355-356; 358; 360 (emphasis added). Konczak testified at trial,

               Q.     So then at some point are you able to be booked into the

      jail?

               A.     Yes. We were out there for probably 20 minutes, I would

      say. And then we went in. We were processed through the jail, where

      they take all of our stuff and start doing inventory on it. My inventory was

      taken.

               And I guess Officer Hout found a little envelope of --like, a piece of

      paper that had about $20 worth of heroin in it. I didn't know it was in there.

      It was in a little pill bottle of mine. And I was freaked out because I was
Richland County, Case No. 18CA71                                                     42


      afraid was going to get conveyance with trying to bring the illegal

      substance into the jail. So Miss Hout had went through the stuff. She

      gave it to Officer Garn.

             Officer Garn came into my jail cell and he says, Whose is this?

      And he said it was in the flowered bag, which it was mine. I said the

      flowered bag was mine but I didn't know that I had it in there. He basically

      looked at me and said, If you get ahold of me when you get out of here,

      this goes away.

             Q.     What was his body language?              Did he do anything to

      indicate what he was going to do? How it was going to go away?

             A.     More the eyes. Not so much body language or leaning in,

      but the eyes. You can tell. I don't know. A woman can tell when a man is

      hitting on her or attracted to her, so on and forth.

                                              ***

      Q.     And you said that Corrections Officer Hout found something in your

      bag. How do you know that?

      A.     Because I could see her. Where we were in the jail cell, you could

      see how when she was looking through stuff and you could see her pull

      that out of my pill bottle and purse.

      Q.     And when you say you saw her pull that out, did you recognize

      what that was?

      A.     Yes, I did. Instantaneously, I did.

      Q.     You said that you had the flowered bag. How big was this bag?
Richland County, Case No. 18CA71                                                      43


      A.     Probably about this big. And anyone who knows female fashion

      calls it a hippie bag. It goes over your shoulder. There's no pockets in it.

      It's just one big bag probably about that big.

             Q.     So probably a foot and a half by about a foot or so?

             A.     Um-hum.

             Q.     Can a lot of things fit in there?

             A.     Oh, yeah.

                                           ***

             Q.     And this pill bottle, was this a pill bottle that you used on a

      regular basis?

             A.     No.     It was just -- I had been prescribed depression

      medication. And I was in my addiction, so I was not taking it. It basically

      sat in my purse for probably two or three months.

             Q.     So you were self-medicated?

             A.     (The witness nodded.)

             Q.     Is that a yes?

             A.     I'm sorry. Sorry. Yes.

                                           ***

             Q.     Now, you recognize it right away.       You said were self-

      medicating with the heroin so you weren't -this pill bottle at the time. So

      were you surprised that you had left heroin in your purse?

             A.     Very.
Richland County, Case No. 18CA71                                                        44


             Q.        If you had remembered that the heroin was in your purse,

      would you have been stealing that day?

             A.        Absolutely not.

             Q.        But you didn't remember?

             A.        No. I wouldn't have been out stealing. That makes it a moot

      point, really.

      4T. at 115-119 (emphasis added). Brandy Vance did not testify that she was

able to observe or hear the interaction between Konczak and Garn when Garn told

Konczak that, “If you get ahold of me when you get out of here, this goes away.”

      {¶110} We conclude that the testimony of Vance does not contradict the

testimony of Konczak with respect to Konczak had heroin in a pill bottle inside her

purse that she had forgotten about and in testifying that Garn told Konczak that, “If you

get ahold of me when you get out of here, this goes away.” Therefore, there is no

reasonable probability that, but for counsel’s failure to call Vance as a witness at trial,

the result of the proceeding would have been different.

      {¶111} Having reviewed the record that Garn cites in support of his claim that he

was denied effective assistance of counsel, we find Garn was not prejudiced by

defense counsel’s representation of him. The result of the trial was not unreliable nor

were the proceedings fundamentally unfair because of the performance of defense

counsel. The testimony of Brandy Vance cannot reasonably be taken to put the whole

case in such a different light as to undermine confidence in the verdict.

      8). Cumulative Effect.

      {¶112} Garn argues, “[e]ach Brady violation independently meets the standard for

a new trial. However, the Court must look at the aggregate effect of the Brady violations.
Richland County, Case No. 18CA71                                                         45

It must not parse each one and determine whether each one individually and

independently requires new trial. State v. Fears, 86 Ohio St. 3d 329 (1999). The effect of

non disclosure must take into account the cumulative effect of the suppressed evidence
   -




in light of the other evidence.” Merit Brief For Appellant, filed Nov. 20, 2018 at 25.

       {¶113} In State v. Brown, 100 Ohio St.3d 51, 2003–Ohio–5059, 796 N.E.2d 506,

the Ohio Supreme Court recognized the doctrine of cumulative error. However, as

explained in State v. Bethel, 110 Ohio St.3d 416, 2006–Ohio–4853, 854 N.E.2d 150,

¶197, it is simply not enough to intone the phrase “cumulative error.” State v. Sapp,

105 Ohio St.3d 104, 2004–Ohio–7008, 822 N.E.2d 1239, ¶103.

       {¶114} Where we have found that the trial court did not err, cumulative error is

simply inapplicable. State v. Carter, 5th Dist. Stark No.2002CA00125, 2003–Ohio-

1313 at ¶37. To the extent that we have found that any claimed error of the trial court

was harmless, or that claimed error did not rise to the level of a Brady or Napue

violation, we conclude that the cumulative effect of such claimed errors is also

harmless because taken together, they did not materially affect the verdict. State v.

Leonard, 104 Ohio St.3d 54, 89–90, 2004–Ohio–6235, 818 N.E.2d 229, 270 at ¶ 185.

       {¶115} As this case does not involve multiple instances of error, Garn’s claim of

cumulative error must fail.

       9). Res judicata bars Garn’s arguments concerning Case No. 2015 CR 0635,

cross-examination of Kelly Harding, and the victim impact statement of Margaret

Konczak.

       aa)). Menacing by Stalking count in case number 2015 CR 0637.

       {¶116} Garn argues, “The trial court erred in failing to address the Menacing by

Stalking count which was indicted under a new case number by the state in effort to
Richland County, Case No. 18CA71                                                         46


correct an error in the indictment. On July 16, 2015, the State filed a motion to join

indictments. The trial court discussed the consolidation of counts at the July 16, 2015

hearing expressing an intent to consolidate. The Court noted, specifically, that the re-

indictment was merely to correct the improper exclusion of a single count. (Tr. Vol. 2 at

5-15). The Court granted the State's motion to join the cases and the cases were tried

and sentenced together. (Tr. Vol. 12).” Merit Brief For Appellant, filed Nov. 20, 2018 at

29-30.

      1]. Garn failed to raise any error in the trial court’s ruling concerning the

joinder of indictments or any defects in the indictments during his direct appeal.

      {¶117} Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding, except an appeal from that judgment, any defense or any claimed lack of

due process that was raised or could have been raised by the defendant at the trial,

which resulted in that judgment of conviction, or on an appeal from that judgment.

State v. Szefcyk, 77 Ohio St.3d 93, syllabus, approving and following State v. Perry, 10

Ohio St.2d 175, 226 N.E.2d 104(1967), paragraph nine of the syllabus.

      {¶118} To the extent that appellant argues the indictment was defective, he was

required to raise this issue before trial. See Crim. R. 12(C)(2); State v. Schultz(1917),

96 Ohio St. 114, 117 N.E. 30; State v. Mills (1992), 62 Ohio St. 3d 357, 363, 582

N.E.2d 972, 980 (Under Crim. R. 12(B) and 12(G), alleged defects in an indictment

must be asserted before trial or they are waived").

      {¶119} Here, Garn did not raise in his direct appeal that the indictment was

defective. Nor did Garn raise in his direct appeal that the trial court erred by joining the
Richland County, Case No. 18CA71                                                                   47


case for trial. Garn was not represented by the same attorney who had represented

him at trial. Garn could have, but did not, raise that argument in his direct appeal.

See, Garn, I at ¶4.

       {¶120} We find that Garn’s arguments concerning case number 2015 CR 0637

are barred by res judicata because he could have, but did not raise the arguments

during his direct appeal.

       bb)). Kelly Harding

       {¶121} Garn argues, “One of Mr. Garn’s responsibilities was traffic enforcement,

known as the STEP program. One of the areas commonly used for that purpose was

close to Kelly Harding's home. (Tr. Vol. 7 at 112). After Mr. Garn stopped Harding for

a traffic ticket, Mr. Garn started stopping over at her house, with increasing frequency

after a while. (Tr. Vol. 4 at 239). The defense made significant efforts at trial to get

into evidence that Harding was afraid to recant her testimony because she was

threatened by the prosecution. (Tr. at 261). The state denied any knowledge of her

recantation on record in response to defense counsel's motion to compel. (Tr. 37, 187,

202, 204, 211). Harding had testified in a prior deposition that she tried to recant but

the state threatened her with legal charges.12               (Tr 258). She did not know the

prosecutors by name; however, she stated that it was a lady and a man. The threat

was believed to be that they would put her into jail if she recanted.                    This Court

meaningfully restricted defense counsel's ability to inquire on this matter, limiting the




         12 No deposition testimony of Kelly Harding was entered into evidence at trial or during the

hearing on the PCR petition. Nor was the deposition sealed and made a part of the record for purposes
of appellate review. See, State v. Hooks (2001), 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d
528(2001)(A reviewing court cannot add matter to the record before it that was not a part of the trial
court's proceedings, and then decide the appeal on the basis of the new matter.).
Richland County, Case No. 18CA71                                                        48


inquiry to whether she was afraid of "legal 'consequences.” To which, she answered,

“yes.” (Tr. 263).

      {¶122} “In light of the testimony at the post-conviction hearing referencing multiple

interviews with witnesses who wanted to recant, Mr. Garn’s conviction for Menacing by

Stalking is highly suspect.” Merit Brief For Appellant, filed Nov. 20, 2018 at 11-12.

      1]. Garn failed to raise any error in the trial court’s ruling concerning the

cross-examination of Kelly Harding during his direct appeal.

      {¶123} At sidebar the state explained, “any statement the prosecutor would have

made about that, as a witness, if you don’t come and we subpoena you, we’re going to

put you in jail as a material witness. That’s a common procedure, a common tactic.

She’s not sophisticated enough to understand the difference. The way it’s going to

come out is totally prejudicial and not probative in any way. (4T. at 259). The trial

court ruled,

      {¶124} I think you can ask her why she ultimately did not take her statement back.

You can’t get into what was said because it would be hearsay, but you can ask her, if

she wanted to recant, why did she not recant…

4T. at 260 (emphasis added). The defense then asked Harding,

               Q.   There’s been a little bit of time, but I’m going to ask you

      about your recantation. I think you said you can’t take it back. Is that

      right?

               A.   Right.

               Q.   Were you afraid of legal ramifications if you took the

      statement back?
Richland County, Case No. 18CA71                                                     49


              A.     Yes.

       4T. at 263. However, Harding immediately thereafter testified,

              Q.     Miss Harding, the statement that you gave here today in

       court and the previous statements you’ve made, did you make any of that

       up?

              A.     No.

              Q.     Is it all the truth?

              A.     Yes.

              Q. Did anyone ever tell you to come in here and tell anything other

       than the truth?

              A.     No.

4T. at 263-264. In his direct appeal, we found Garn’s convictions for offenses involving

Kelly Harding were not against the manifest weight or the sufficiency of the evidence.

Garn, I at 23; 54.

       {¶125} With respect to Ms. Harding, the jury found Garn not guilty of 3 LEADS

violations (Counts One, Two and Four), Burglary (Count 32), Trespass (Count 33) and

Attempted Gross Sexual Imposition (Count 34). In addition, the trial court granted

Garn’s Criminal Rule 29 motion for acquittal on Attempted Sexual Battery (Count 35).

(8T. at 952-953).

       {¶126} The defense was aware of the recantation information and cross-

examined Harding about her attempt to recant during Garn’s jury trial. See, State v.

Ketterer, 126 Ohio St.3d 448,2010-Ohio-3831, 935 N.E.2d 9, ¶ 36 (“no Brady violation

occurs where a defendant knows of essential facts permitting him to take advantage of
Richland County, Case No. 18CA71                                                       50

exculpatory information or where evidence is available from another source.” citing

United States v. Clark (C.A.6, 1991), 928 F.2d 733, 738). We find no credible,

substantive evidence that there were multiple witnesses who had attempted to recant,

or had lied, or had failed to inculpate Garn.

      {¶127} Garn did not raise an assignment of error in his direct appeal that the trial

court erred by improperly restricting his cross-examination of Harding. Therefore, any

argument that the trial court erred in this respect is barred by res judicata.

      cc)). Victim Impact Statement

      {¶128} Garn argues,

               Furthermore, as discussed, because Brady applies to guilt and

       punishment, the nondisclosure of this report affects the sentencing of Mr.

       Garn.     At the post-conviction hearing, the current Richland County

       Prosecutor acknowledged that Konczak was not a victim. (Tr. Vol. 2 at

       118).    See Napue v Illinois, 360 U.S. 264 (1959) (holding that the

       knowing use of false testimony by a prosecutor in a criminal case violates

       the Due Process Clause of the Fourteenth Amendment).               This is an

       important assertion for two reasons- the first being that the State argued

       adamantly throughout the trial that Mr. Garn's motivation for allegedly

       destroying evidence was a sexual motivation; the second being that

       Konczak was permitted to provide a victim impact statement at

       sentencing. Notably, Konczak was the only alleged victim to make a

       statement at sentencing. The trial court abused its discretion in finding in

       its judgment entry that motive is not an element of tampering as the trial
Richland County, Case No. 18CA71                                                         51


       court used alleged sexual motivations on behalf of Mr. Garn towards

       Konczak to impose a maximum consecutive sentence on the Tampering

       with Evidence Charge. (JE at 31).

Merit Brief For Appellant, filed Nov. 20, 2018 at 27-28.

       1]. Garn failed to raise any error in the trial court’ concerning the victim

impact statement of Margaret Konczak or to assign as error in his direct appeal

that trial counsel was ineffective for failing to challenge the testimony.

       {¶129} Any argument that the trial court erroneously considered statements made

at the sentencing hearing regarding an individual who was not a victim of the crimes for

which Garn was convicted, or that sexual motivation was an improper sentencing factor

for destruction of evidence crime could have been made in the trial court before or

during sentencing for Garn. See, e.g. State v. Byrd, 12th Dist. Warren Nos. CA2001-

02-012, CA86-03-020, 2003-Ohio-511. The argument does not depend upon any

evidence dehors the record. In addition, Garn never alleged during his direct appeal

that his trial counsel was ineffective for failing to object to the victim impact testimony

or failing to object to the trial court’s consideration of sexual motivation as a sentencing

factor at the trial level.

       {¶130} Accordingly, these arguments are barred by res judicata.
Richland County, Case No. 18CA71                                             52


      CONCLUSION.

      {¶131} Garn’s sole assignment of error is overruled.   The judgment of the

Richland County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Wise, John, J., and

Baldwin, J., concur
