         [Cite as State v. Robertson, 2017-Ohio-7225.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :     APPEAL NO. C-160681
                                                         TRIAL NO. B-0603150
        Plaintiff-Appellant,                       :
                                                         O P I N I O N.
  vs.                                              :

DELRICO ROBERTSON,                                 :

    Defendant-Appellee.                            :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                            Remanded

Date of Judgment Entry on Appeal: August 16, 2017

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Groth & Associates and Tim A. Dugan, and Jeremy Levy, and Bryan Perkins, for
Defendant-Appellee.
                     OHIO FIRST DISTRICT COURT OF APPEALS



M ILLER , Judge.

       {¶1}    The state of Ohio appeals from the trial court’s judgment granting

Delrico Robertson’s motion for a new trial based on newly discovered evidence. The

trial court granted Robertson a new trial on charges stemming from the shootings of

Michael Willis and Andre Hayes, and from the shooting death of Matthew Cox.

These three shootings occurred on different dates, and there was no apparent

connection among the victims. The “newly discovered evidence” was testimony from

victim Willis, who had not testified in Robertson’s trial.

       {¶2}    We reluctantly affirm the trial court’s judgment concerning the

charges arising from the Willis shooting, but reverse that part of the court’s

judgment granting Robertson a new trial on the charges arising out of the Hayes

shooting and the Cox shooting death.

                                Procedural History

       {¶3}    Following a jury trial in 2007, Robertson was found guilty of one count

of murder for the shooting death of Cox; four counts of felonious assault in

connection with the shootings of Willis and Hayes—each man was the victim in two

counts; and three counts of having a weapon while under a disability. The trial court

sentenced Robertson to 50 years to life. Robertson appealed. In pertinent part, we

affirmed the jury’s findings of guilt as to each charge, but held that the trial court had

erred by admitting hearsay statements of two witnesses, Detective Robin Upchurch

and Jamisha Willis. State v. Robertson, 1st Dist. Hamilton Nos. C-070151 and C-

070159, 2008-Ohio-2562, ¶ 15, 16. (“Robertson I”). The detective and Jamisha each

testified that Willis had identified Robertson as his assailant. We determined that the

error was harmless in light of the testimony of Lawrence Maupin who claimed that

he had witnessed Robertson shoot Willis. Id.



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        {¶4}    Robertson later moved the trial court for leave to file a delayed motion

for a new trial on the ground of newly discovered evidence. The trial court allowed it

and, following a hearing on his motion, granted Robertson a new trial as to all

counts. The state now appeals.

                                    The Willis Shooting

        {¶5}    Willis was shot on the sidewalk on the corner of 15th and Republic

Streets in Cincinnati.      Maupin claimed to have seen the shooting, and the Cox

murder, discussed below. According to Maupin, Willis had attempted to break up a

street-fight between two “girls,” and Robertson had told Willis, “Don't break it up.”

Maupin testified that Willis ignored Robertson, and that Robertson then shot Willis

three or four times in the back. Michael Gray, who had been housed with Maupin at

the Hamilton County Justice Center, testified that Maupin had admitted that he was

going to lie at Robertson’s trial in the hopes of reducing his sentence. Defense

witness Twanda Alexander claimed that she had been with Maupin at the time of

Willis’s shooting, and that she and Maupin had not been at the scene of the crime.

Willis did not testify at trial.

        {¶6}    Detective Upchurch investigated the shooting. She testified at trial

that she had interviewed Willis, and that Willis had given her a description of his

assailant. Detective Upchurch also stated that she had conducted a photographic

lineup with Willis, and that Willis had identified Robertson. In Robertson I, 1st Dist.

Hamilton Nos. C-070151 and C-070159, 2008-Ohio-2562, at ¶ 16, this court held that

Detective Upchurch’s testimony concerning Willis’s description of Robertson as the

shooter was inadmissible hearsay.




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        {¶7}   Jamisha Willis, Willis’s sister, testified at trial that her brother

identified Robertson as the shooter some weeks after the shooting. In Robertson I,

at ¶ 15, we held that Jamisha’s statement was inadmissible hearsay.

                                 The Hayes Shooting

        {¶8}   Andre Hayes was a bootleg cab driver. Hayes had driven Robertson in

his van twice. The first time, he drove Robertson from downtown Cincinnati to a

nearby pizza parlor, went into the pizza parlor with him, waited 15 or 20 minutes for

the pizza to be prepared, and then drove Robertson back downtown. Robertson had

been seated in the front passenger seat during the pizza run. A few days later, Hayes

picked up Robertson to take him to an apartment complex. Hayes recognized

Robertson from the last time that he had given him a ride. On the way, Robertson

asked Hayes to stop. Robertson then exited from Hayes’s van and shot Hayes in both

legs.

        {¶9}   Officer Scott Johnson investigated this crime. Hayes had told Officer

Johnson that the man who shot him went by the nickname, “Detroit.” Hayes was

able to identify Robertson from a photographic lineup. Robertson was also linked to

this shooting through forensic evidence; three of Robertson’s fingerprints were found

in Hayes’s van.

        {¶10} Detective Upchurch, who worked in the same office as Officer

Johnson, investigated the Willis shooting at the same time that Officer Johnson

investigated the Hayes shooting. Detective Upchurch testified that she told Officer

Johnson that Detroit was the same person as Robertson.

                                    The Cox Murder

        {¶11} Matthew Cox drove himself and three teenage girls to the Over-The-

Rhine area of Cincinnati to purchase heroin. One of these girls, Christina Julian,



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testified that, as she was buying the heroin though the passenger-side window of

Cox’s car, a man walked up to the driver’s-side window and shot Cox in the head,

killing him.

        {¶12} Detective Kurt Ballman investigated this crime. Witnesses told him

that a person named “Rico” or “Detroit” had shot Cox. Tange Wilson, who had

witnessed the shooting, identified the shooter as Robertson. Maupin claimed to have

also been at the scene of the Cox murder. At trial, three eye witnesses—Julian,

Tange, and Maupin—testified that Robertson had shot Cox.

        {¶13} Detective Upchurch testified at trial that the investigators of the Cox

shooting had shared information with her, and had provided her with Robertson’s

name.

                         Robertson’s Motion for a New Trial

        {¶14} Willis was the only witness called at Robertson’s hearing on his motion

for a new trial. Overall, Willis testified that he did not know who had shot him, and

that he had never identified Robertson as his assailant to either Detective Upchurch

or to his sister, Jamisha. He also claimed that the shooting did not occur as Maupin

had described.

        {¶15} More specifically, Willis testified that he did not identify Robertson in

Detective Upchurch’s photographic lineup. Instead, Willis claimed, the detective had

asked him to sign the back of one of the photographs before he had seen it, and that

she had told Willis that Robertson was the man who had shot him. Willis testified

that the detective had also told him that he would not need to testify at Robertson’s

trial. Nevertheless, the detective did subpoena Willis to testify. However, she did

not have a good address for him and he was never served. According to Willis, who




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was from out of town, Detective Upchurch knew that he could be reached at his

mother’s address in Cincinnati, and that the detective was aware of that address.

       {¶16} Willis also claimed that he could not and did not identify Robertson as

his assailant to Jamisha.

       {¶17} Finally, Willis testified that he had not attempted to break up a fight at

15th and Republic Streets and that Robertson had not asked him to stop breaking up

the fight. Willis claimed that his back was to the shooter and that he had never seen

who had shot him.

       {¶18} We find Willis’s testimony to be somewhat incredulous, especially his

description of Detective Upchurch’s investigative techniques and his statements that

his sister had lied. However, we are mindful that credibility determinations are

primarily for the trier of fact. See State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212 (1967), paragraph one of the syllabus. We therefore reluctantly defer to the trial

court’s surprising determination that Willis was telling the truth.

                                 Argument and Analysis

       {¶19} The decision to grant or deny a motion for a new trial is discretionary.

State v. Williams, 43 Ohio St.2d 88, 330 N.E.2d 891 (1975), paragraph two of the

syllabus. We review the trial court’s judgment for an abuse of discretion. An abuse of

discretion occurs when a decision is unreasonable, arbitrary, or unconscionable.

State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

       {¶20} A motion for a new trial on the ground of newly discovered evidence

may be granted where “the new evidence (1) discloses a strong probability that it will

change the result if a new trial is granted, (2) has been discovered since the trial, (3)

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

trial, (4) is material to the issues, (5) is not merely cumulative to former evidence,



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and (6) does not merely impeach or contradict the former evidence.” State v. Petro,

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

                    The New Evidence and the Willis Shooting

       {¶21} In its first assignment of error, the state contends that the trial court

erred by ordering a new trial on the charges arising from the Willis shooting. In

particular, the state takes issue with the first and sixth prongs of the Petro test. It

first argues that the trial court abused its discretion by finding that the newly

discovered evidence did more than “merely impeach or contradict” the former

evidence.

       {¶22} Impeachment evidence is “evidence used to undermine a witness’s

credibility.” Black’s Law Dictionary 597 (8th Ed.2004); see generally Evid.R. 607-

609. Willis’s testimony concerning whether he had identified Robertson as his

assailant to Detective Upchurch and Jamisha, and his testimony concerning the

detective’s investigative techniques went to each witnesses’ credibility and was

therefore impeachment evidence. However, because we held in Robertson I that

Detective Upchurch’s and Jamisha’s identification testimony should have been

excluded from evidence, we focus our analysis on whether Willis’s testimony did

more than impeach or contradict other evidence offered by the state at trial.

       {¶23} Here, Willis presented a version of events surrounding his shooting

different from that offered by the state at trial. Willis claimed that he was not

involved in breaking up a fight at 15th and Republic Streets, and that Robertson did

not ask him to stop attempting to break up the fight. A victim’s testimony that an

incarcerated informant’s version of events was untrue, where the informant’s

testimony was the only admissible identification of the defendant as the perpetrator,

rises above “mere” contradiction. It calls into question how the jury would have



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viewed the competing version of events offered by the victim and whether the

informant was present at the shooting.

       {¶24} We hold that it was not unreasonable, arbitrary, or unconscionable for

the trial court to conclude that this evidence was more than merely impeaching or

contradictory to the evidence presented at trial. See Williams 43 Ohio St.2d 88, 330

N.E.2d 891, at paragraph two of the syllabus. Consequently, the trial court did not

err in holding that the sixth prong of Petro had been met.

       {¶25} The state next contends that Robertson failed to establish the first

prong of Petro, that the newly discovered evidence “discloses a strong probability

that it will change the result if a new trial is granted.” See Petro, 148 Ohio St. 505, 76

N.E.2d 370, at syllabus.

       {¶26} The state argues that because this court held in Robertson I that there

was sufficient evidence to convict Robertson of the Willis shooting based on

Maupin’s testimony alone, there was not a strong probability that the outcome of

Robertson’s trial would be different if Willis were to testify.       This argument is

unpersuasive. When determining whether there is sufficient evidence to support a

conviction, we view the evidence in a light most favorable to the state. See State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).           It is a test of

adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

Here, we are tasked with reviewing whether the trial court abused its discretion in

determining the probable effect of newly discovered evidence on a new trial. Given

our record and our highly deferential standard of review, we are left with little choice

but to uphold the trial court’s ruling.

       {¶27} At the time of Robertson’s trial, Maupin had been facing criminal

charges. Maupin testified against Robertson in exchange for a potential plea deal



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that could reduce his prison term from 26 years to two years, a 94 percent reduction.

Gray, who had been housed with Maupin in the Hamilton County Justice Center,

testified at trial that Maupin had admitted that he was going to lie at Robertson’s

trial in the hopes of reducing his sentence. Finally, witness Twanda Alexander

claimed that she had been with Maupin at the time of Willis’s shooting, and that she

and Maupin had not been at the scene of the crime.

       {¶28} On retrial, the finder-of-fact would be faced with two different versions

of the events surrounding Willis’s shooting. Only one version implicated Robertson

in the shooting. We cannot determine if Maupin, Willis, or either would be believed,

as neither witness appears to be particularly credible. However, given the obvious

concerns with Maupin’s credibility, a trial court could reasonably find that there is a

strong probability that a judge or jury would discount Maupin’s testimony altogether.

Without Maupin’s identification of Robertson as the shooter, the state would not be

able to tie Robertson to that crime.

       {¶29} Based on the trial court’s determination that Willis testified truthfully,

we hold that the court did not act in an unreasonable, arbitrary, or unconscionable

manner in granting Robertson a new trial on the Willis shooting charges. The state’s

first assignment of error is overruled.

      The New Evidence and the Hayes Shooting and Cox Murder

       {¶30} In its second assignment of error, the state contends that the trial

court abused its discretion when it ordered a new trial on the charges stemming from

the Hayes shooting and the Cox murder. The state is correct.

       {¶31} Willis’s testimony related only to his own shooting. However, the trial

court granted Robertson a new trial on all charges due to Willis’s allegations of




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misconduct by Detective Upchurch, combined with what the trial court saw as

Detective Upchurch’s involvement in the Hayes and Cox investigations.

       {¶32} We focus our analysis on the first prong of the Petro test, i.e., whether

“the new evidence discloses a strong probability that it will change the result if a new

trial is granted.” Petro, 148 Ohio St. 505, 76 N.E.2d 370, at syllabus.

       {¶33} It is true that Detective Upchurch testified that she was involved in

helping Officer Johnson link the nickname “Detroit” with Robertson. Surprisingly,

the trial court chose to believe Willis’s testimony concerning the photographic

lineup, as well as Willis’s insinuations that Detective Upchurch had intentionally

failed to subpoena him at an address where he could be reached. Even taking Willis’s

testimony as true, the trial court’s determination that there was a strong probability

that this evidence would change the outcome of a retrial on the Hayes shooting and

Cox murder charges is not supported by a sound reasoning process.

       {¶34} The     evidence   tying   Robertson    to   the   Hayes     shooting   was

overwhelming, and Detective Upchurch’s involvement in that case was limited to her

helping Officer Johnson determine the real name of “Detroit.” Even if Detective

Upchurch had somehow come across this information in a nefarious manner,

Hayes’s identification of Robertson was based on his prolonged personal

observation. Hayes had spent a significant amount of time with Robertson the first

time he had given Robertson a ride. A few days after the first ride, Hayes picked up

Robertson again. Hayes recognized Robertson from the last time that he had given

him a ride. Hayes knew that Robertson’s nickname was “Detroit.” Hayes was able to

identify Robertson from a photographic lineup. Three of Robertson’s fingerprints

were found in Hayes’s van. Willis’s testimony does not impact this evidence.




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       {¶35} The state’s evidence at trial regarding the Cox murder was also

compelling. Detective Ballman investigated the Cox murder. Witnesses told him

that a person nicknamed “Detroit” had shot Cox. Wilson saw the shooting from the

street. Julian was sitting beside Cox when Cox was shot. Maupin claimed that he

was also at the scene. At trial, all three eye witnesses—Julian, Tange, and Maupin—

testified that Robertson shot Cox.         At trial, Detective Upchurch testified that

investigators of this crime had helped her to determine who Robertson was, and not

vice versa.

       {¶36} Given this record, we hold that the trial court’s decision granting

Robertson a new trial on the Hayes shooting and Cox murder charges was unsound.

See AAAA Ents., Inc. v. River Place Community Urban Redev. Corp., 50 Ohio St.3d

157, 161, 553 N.E.2d 597 (1990) (holding that a decision is unreasonable if there is no

sound reasoning process that would support it). The evidence tying Robertson to the

Hayes shooting and the Cox murder was overwhelming. Willis’s testimony did not

undermine the state’s case on the charges arising out of these events, let alone create

a “strong probability” of a different result on retrial.

       {¶37} The state’s second assignment of error is sustained.

                                          Conclusion

       {¶38} While a different trier-of-fact may have determined that Willis was not

credible, given our highly deferential standard of review, the trial court’s judgment

granting Robertson a new trial on the Willis shooting charges is affirmed.

       {¶39} In all other respects, the trial court’s judgment is reversed. There was

no rational basis for the trial court to hold that Willis’s testimony would in any way

effect the outcome of a retrial on the Hayes shooting and the Cox murder charges.

                       Judgment affirmed in part, reversed in part, and cause remanded.



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M YERS , J., concurs.
Z AYAS , P.J., concurs in judgment only.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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