[Cite as State v. Bressi, 2020-Ohio-4.]


STATE OF OHIO                      )                   IN THE COURT OF APPEALS
                                   )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                          C.A. No.      29257

        Appellant

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
JAMES P. BRESSI                                        COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellee                                       CASE No.   CR-2013-08-2314

                                   DECISION AND JOURNAL ENTRY

Dated: January 2, 2020



        TEODOSIO, Presiding Judge.

        {¶1}     Appellant, The State of Ohio, appeals from the judgment of the Summit County

Court of Common Pleas, granting Appellee, James P. Bressi, a new trial. This Court affirms.

                                                  I.

        {¶2}     This Court previously set forth the underlying facts and procedural posture of this

case as follows:

        Summit Pain Specialists is a medical organization that specializes in the treatment
        of individuals suffering from chronic pain. Before the events giving rise to this
        appeal, Bressi owned Summit Pain Specialists and operated it alongside his
        business partner, Dr. Robert Geiger. Bressi received his training in osteopathic
        medicine and frequently treated his patients using osteopathic manipulative
        treatment (“OMT”), a technique wherein an individual uses his hands to stretch
        and exert pressure on various muscles and joints to achieve optimal alignment and
        relieve pain. Starting in 2012, individuals began contacting the Stow Police
        Department to report that Bressi had engaged in inappropriate sexual contact with
        them when they came to him for treatment. The reports launched an intensive
        investigation led by Detective Jeff Swanson, who interviewed numerous patients
        and other individuals who had contact with Bressi. In March 2013, amidst
        accusations of inappropriate conduct and his breach of an office policy requiring
        the presence of chaperones during OMTs, Bressi was terminated from Summit
                                                 2


       Pain Specialists. Sixth months later, the Stow Police Department’s investigation
       culminated in his arrest.

       A grand jury indicted Bressi on two counts of rape, thirteen counts of gross sexual
       imposition, and twelve counts of sexual imposition. The twenty-seven counts
       pertained to eleven different victims, ten of whom were Bressi’s patients and one
       of whom, C.H., was a nurse on his staff. The incidents underlying the twenty-
       seven counts were alleged to have occurred at different times between May 2011
       and March 2013.

       ***

       The jury found Bressi guilty of a single count of sexual imposition and not guilty
       of the remaining twenty-six counts against him. The court sentenced Bressi to
       fifty-nine days in jail, five years of probation, and a fine. Additionally, the court
       classified him as a tier one sexual offender.

State v. Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-5211, ¶ 2-6.

       {¶3}    Bressi’s conviction for sexual imposition was affirmed on appeal. Id. at ¶ 43. He

appealed this Court’s decision to the Supreme Court of Ohio, but the high court declined to

accept jurisdiction. See State v. Bressi, 148 Ohio St.3d 1426, 2017-Ohio-905. He later moved

the trial court for leave to file a motion for a new trial on account of newly discovered evidence.

After a hearing on the matter, the trial court found that Bressi had demonstrated by clear and

convincing proof he was unavoidably prevented from discovery of the new evidence, and thus

granted his motion for leave to file a motion for a new trial. See Crim.R. 33(B). Bressi then

filed his motion for a new trial based upon newly discovered evidence, which the court

subsequently granted despite opposition from the State.

       {¶4}    This Court granted the State of Ohio leave to appeal from the trial court’s

judgment granting Bressi a new trial, pursuant to R.C. 2945.67(A) and App.R. 5(C). See State v.

Matthews, 81 Ohio St.3d 375, 379 (1998) (“[A] trial court’s order granting the defendant a new

trial in a criminal case is a final appealable order which the state may appeal by leave of court.”).

The State raises one assignment of error for this Court’s review.
                                                 3


                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED
       BRESSI’S MOTION FOR A NEW TRIAL, MERITING REVERSAL AND
       VACATION OF THE TRIAL COURT’S ORDER.

       {¶5}    In its sole assignment of error, the State of Ohio argues that the trial court abused

its discretion in granting Bressi’s motion for a new trial. We disagree.

       {¶6}    Crim.R. 33(A) allows a defendant to move for a new trial when his substantial

rights have been materially affected. Pursuant to Crim.R. 33(A)(6), a new trial may be ordered

“[w]hen new evidence material to the defense is discovered which the defendant could not with

reasonable diligence have discovered and produced at the trial.” To warrant the granting of a

motion for a new trial based upon newly discovered evidence, the defendant must show that the

evidence:

       “(1) discloses a strong probability that it will change the result if a new trial is
       granted, (2) has been discovered since the trial, (3) is such as could not in the
       exercise of due diligence have been discovered before the trial, (4) is material to
       the issues, (5) is not merely cumulative to former evidence, and (6) does not
       merely impeach or contradict the former evidence.”

State v. Tolliver, 9th Dist. Lorain No. 16CA010986, 2017-Ohio-4214, ¶ 18, quoting State v.

Petro, 148 Ohio St. 505 (1947), syllabus.

       {¶7}    This Court applies an abuse of discretion standard of review when reviewing a

trial court’s decision to grant or deny a motion for a new trial based on newly discovered

evidence. Tolliver at ¶ 18. “The term ‘abuse of discretion’ connotes more than an error of law

or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). “A decision is unreasonable if there is

no sound reasoning process that would support that decision.” AAAA Ents., Inc. v. River Place
                                                   4


Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). When applying an

abuse of discretion standard, a reviewing court is precluded from simply substituting its own

judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

In other words, “[i]t is not sufficient for an appellate court to determine that a trial court abused

its discretion simply because the appellate court might not have reached the same conclusion or

is, itself, less persuaded by the trial court’s reasoning process than by the countervailing

arguments.” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 14.

          {¶8}   After Bressi filed a motion for leave to file a motion for a new trial, the trial court

heard testimony from both Bressi and Z.B. at a hearing on August 8, 2017. Z.B. is the court-

appointed receiver in a civil case involving Bressi and his former partners at Summit Pain. See

James P. Bressi, et al. v. Robert S. Geiger, et al., Summit Cty. Case No. CV 2014-04-2198.

Bressi sought and obtained permission from the appointing court to subpoena Z.B. to testify in

this matter. See, generally, Barton v. Barbour, 104 U.S. 126 (1881). In his capacity as receiver,

Z.B. is broadly tasked with identifying, locating, and liquidating all assets involved in the civil

matter.

          {¶9}   Z.B. testified that while carrying out his duties as receiver he met with the chief

operating officer of Summit Pain (“R.G.”). In his review of the company’s “books,” Z.B.

testified that he discovered many improprieties, including missing files that had been removed

prior to his arrival and a “tremendous amount of money that could not be accounted for.”

According to Z.B., salaries were “out of whack,” receipts for large purchases were missing, and

“tremendous amounts” of expenditures were coded as “business development[,]” yet no

corresponding purchases could be found. Z.B. testified that R.G. began “tak[ing] everything that

wasn’t nailed down[,]” including all of the money out of the accounts, while leaving about
                                                  5


$70,000.00 in unpaid payroll. Some employees of Summit Pain contacted Z.B. after he was

appointed and claimed that R.G. had assured them they were “protected” because the receiver

would pay them when he arrived. Z.B. also testified that, once litigation was initiated thereafter,

Dr. Geiger and his wife filed for bankruptcy.

       {¶10} Z.B. eventually began reviewing over 20,000 emails in April or May of 2017,

which were obtained in multiple batches from R.G.’s attorneys. Z.B. testified that he has worked

almost full-time for ten months reviewing them all. The emails had been previously protected by

Dr. Geiger’s attorney-client privilege, but a waiver of that privilege was negotiated and obtained

during Dr. Geiger’s bankruptcy case.            Z.B. testified that these emails included some

correspondence between R.G. and his attorneys, in which R.G. asked, “[W]ould it be okay if

they got C.H. to embellish her story of Mr. Bressi, would that work for them,” but one of the

attorneys replied, “[A]bsolutely not, don’t do that.” Z.B. further testified:

       [A]s the pattern goes and this case progresses, there are scores of incidents
       whereby [R.G., Dr. Geiger, and his wife] continued to ask their attorneys can we
       do this. The attorneys say absolutely not, and then the next e-mail between all
       three of them is how are we going to do this without permission of the attorneys,
       and they simply proceed to do it.

       In fact there are e-mails between the attorneys saying what are we going to do
       when it’s found out that they did these things.

Z.B. clarified that “these things” meant getting C.H. to embellish her story, “[a]mong other

things.” Z.B. further testified:

       There were mentions of the fact that [C.H.] should be encouraged to embellish her
       testimony as it would look good for Dr. Geiger especially coming up on his
       medical board hearings because they wanted to lay the blame for everything on
       [Bressi].

Z.B. also testified that his investigation into the emails revealed:

       A continual pattern on the part of [R.G., Dr. Geiger, and his wife] to box out Dr.
       Bressi starting in ’13. In ’13, and I now have this as other lawyers have been
                                                  6


       forced to turn over their records, there was a concerted effort to first get rid of Dr.
       Bressi, and I’m not here to comment on that at all, just that there was a concerted
       effort to get him out.

       And then it was discovered that they would have to pay Dr. Bressi for his shares,
       they all just said we’re not going to do it because he is going to jail forever and
       guys in jail can’t sue us.

Z.B. testified that the emails dated back to 2012, when an investor was negotiating the purchase

of Bressi’s shares of the business. In 2013, however, a “shift” occurred in the emails, whereby

Dr. Geiger simply said: “[W]ait a second; Bressi is under arrest; he is going on trial; why do I

need to sell this; I can keep 100 percent for myself.”

       {¶11} The State argues that the emails were never produced nor authenticated at the

hearing, which is a prerequisite to admissibility. “Before evidence may be admitted, it must be

authenticated or identified sufficiently ‘to support a finding that the matter in question is what its

proponent claims.’” State v. Hoffmeyer, 9th Dist. Summit No. 27065, 2014-Ohio-3578, ¶ 18,

quoting Evid.R. 901(A). The threshold for admissibility is low, however, and Evid.R. 901(B)

provides a nonexhaustive list illustrating the ways in which the proponent of the admission of

evidence can conform with Evid.R. 901(A). State v. Yuschak, 9th Dist. Medina No. 15CA0055-

M, 2016-Ohio-8507, ¶ 17. For example, the authentication or identification of evidence may be

achieved through the testimony of a witness with knowledge that “‘a matter is what it is claimed

to be.’” Id., quoting Evid.R. 901(B)(1). Here, Z.B. testified that, in his capacity as receiver in a

related civil case, he received these emails directly from R.G.’s attorneys. Z.B.’s testimony is

sufficient to satisfy Bressi’s burden to demonstrate a reasonable likelihood the over 20,000

emails are authentic. See Hoffmeyer at ¶ 18.

       {¶12} The State argues in the alternative that even if the emails had been admitted, both

Z.B.’s testimony and the emails contained inadmissible hearsay. See Evid.R. 801(C) (defining
                                                  7


“hearsay” as “a statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted”); Evid.R. 802 (noting the

general inadmissibility of hearsay); but see Evid.R. 803 and 804 (listing multiple exceptions to

the hearsay rule). “[T]o prove that a new trial is warranted on the basis of newly discovered

evidence, such evidence must be admissible in the new trial.” State v. Vess, 6th Dist. Ottawa No.

OT-10-038, 2011-Ohio-3118, ¶ 38, citing State v. Williams, 43 Ohio St.2d 88 (1975), paragraph

one of the syllabus. In rejecting the State’s hearsay argument, the trial court noted in its order:

“[T]here are a number of ways in which the emails and other communications can be introduced

into evidence in Bressi’s case-in-chief or for impeachment purposes.” The State now argues that

the trial court erred in considering the admissibility of the evidence at a new trial. But, the court

needed to consider the admissibility of the newly discovered evidence at a new trial, and we

therefore cannot say that it erred in doing so. See id. We determine that the trial court acted

within its discretion in reaching its conclusions as to the admissibility of the evidence. See State

v. Henning, 9th Dist. Summit No. 29128, 2019-Ohio-2200, ¶ 17 (“Admissibility determinations

under the evidentiary rules generally fall within the sound discretion of the trial court.”).

       {¶13} The State also cites to our decision in State v. Holmes and argues that affidavits

and unverified emails replete with hearsay will not satisfy the defendant’s burden to demonstrate

a strong probability that the evidence would change the result of a new trial. See State v.

Holmes, 9th Dist. Lorain No. 05CA008711, 2006-Ohio-1310, ¶ 14-15. We find Holmes to be

factually distinguishable from Bressi’s case, however, as the motion for a new trial in Holmes

was supported only by Holmes’ own self-serving affidavit, which was largely based on hearsay

and unverified documents, e.g., handwritten notes allegedly written by prosecutors and letters

purportedly written by his now deceased wife/victim claiming Holmes was innocent and that her
                                                 8


trial testimony was coerced by prosecutors. See id. at ¶ 5-6, 14-15. We therefore determined,

based on the particular facts in Holmes, that “the trial court could have reasonably determined

that the evidence submitted did not create a strong probability that it would change the result if a

new trial was granted.” Id. at ¶ 15. Here, Bressi submitted more than his own self-serving

affidavit and handwritten notes of unknown origins. Bressi submitted multiple affidavits from

various individuals and offered the testimony of the receiver in his civil case, who testified

regarding over 20,000 emails he personally received in his capacity as receiver from the

attorneys of one of Bressi’s partners. The State’s reliance on Holmes is thus misplaced.

       {¶14} Apart from Z.B.’s testimony regarding his investigation of the emails, the trial

court noted that Bressi offered four affidavits from A.N., P.S., A.C., and J.N. in support of his

motion for a new trial, and the State offered one affidavit from the victim of Bressi’s sexual

imposition conviction (“C.H.”).

       {¶15} A.N. is a former patient of Summit Pain Specialists (“Summit Pain”) who averred

that C.H. called her in 2013 and asked her to contact the Stow Police Department to “implicate

Dr. Bressi in inappropriate behavior.” C.H. purportedly became upset when A.N. “told her it

was not true” and later called A.N. again to ask if she had contacted the police yet. C.H. became

upset once more when A.N. said she had not contacted the police, and “ultimately had [A.N.]

discharged as a patient from Summit Pain * * * in retaliation * * *.” A.N. averred that she had

C.H. on speakerphone for the first phone call, and K.D.1 overheard the conversation. C.H.

averred, however, that she had no recollection of A.N. or K.D. and never telephoned or asked

anyone to implicate Bressi in any inappropriate behavior. C.H. averred that she received calls


       1
           An unsworn statement from K.D. that was attached to Bressi’s motion for leave was
stricken from the record at the August 8, 2017, hearing and was, consequently, not considered by
the trial court.
                                                  9


from individuals complaining about inappropriate behavior by Bressi, but told those individuals

they had two choices: “not do anything or report to Stow Police.” C.H. further averred that she

told these people she would have to “report this to Dr. Geiger.”

       {¶16} Although the trial court’s order granting Bressi’s motion for a new trial

acknowledges P.S.’ affidavit, we note that the court explained at the August 8, 2017, hearing it

would not consider P.S.’ affidavit as newly discovered evidence because she had been on

Bressi’s May 29, 2014, witness list for trial. The State argues that the trial court erred in relying

on P.S.’ affidavit nonetheless, but apart from listing the affidavits “offer[ed]” by Bressi nothing

further in the court’s order indicates any specific reliance on P.S.’ affidavit.

       {¶17} A.C. averred that she worked at Summit Pain from September 2012 until 2016,

and currently works part-time assisting Z.B. She averred that C.H. was “continually in closed

door meetings with Dr. Geiger and [R.G.]” prior to and after Bressi’s departure from Summit

Pain. A.C. averred that, following Bressi’s trial, she was present at Summit Pain when C.H. said,

“I can’t believe the jury believed me.” In responding to A.C.’s affidavit, C.H. averred that it was

“true, there were discussions behind closed doors that involved may (sic) aspects of [Summit

Pain].” In its order, the trial court specifically noted that C.H., in her affidavit, did not deny

making the comment: “I can’t believe the jury believed me.”

       {¶18} C.H. further averred that her testimony at Bressi’s trial was truthful and she was

never contacted by anyone who asked her to “embellish or alter [her] statement or testimony

concerning James Bressi.” We previously summarized C.H.’s testimony at trial as follows:

       C.H. testified that she worked at Summit Pain Specialists for a total of about
       fourteen years. In January 2012, she accepted a position at the Stow location with
       Bressi. C.H. testified that she was familiar with Bressi because she previously
       had worked with him at a different office. She stated that, after she accepted her
       position at the Stow office, she worked as a triage nurse and was typically in the
       office from 7:30 a.m. until 4:30 p.m. One day in March or April 2012, C.H.
                                         10


stayed late at the office to finish returning phone calls. When she finished, she
went to say goodbye to Bressi and he asked how she was doing. C.H. testified that
Bressi was aware that she was emotionally fragile at the time because he knew her
son had died the previous year and he knew she was scheduled to have a heart
catheterization performed. She testified that, when she told Bressi she did not
care what happened to her, he asked her to come back to one of the office visit
rooms.

C.H. stated that Bressi closed the examination room door behind her and had her
lie face down on the examination table. He then started massaging her back and
shoulders. C.H. indicated that, when she lay down on the table, she placed her
arms at her sides with her palms facing up. As Bressi massaged C.H., she began
to feel his penis rubbing in her palm. C.H. testified that she attempted to stop the
connection by placing her hands up over her head, but Bressi then took her arms,
moved them back down to her sides, and continued to rub his penis against her
hand. C.H. then tried again to move her arms, and Bressi once again moved them
back into position, rubbing his penis against her. At that point, C.H. testified that
she fisted both of her hands. Bressi then brought her left arm out to the side,
massaged her hand until she opened it, and placed it back down on her side. He
continued rubbing farther down her back until he reached the top of her pants and
“scooted [them] down.”

C.H. testified that Bressi began “touching at [her] vaginal area,” so she
immediately told him that his touch was too personal. After she did so, Bressi
stopped touching her near her vagina, but told her that “it wasn't for him,” but for
her because she “needed the release.” C.H. testified that she had received OMTs
from Bressi in the past, but they never involved him placing his fingers near her
vagina or rubbing his penis on her. She testified that she began crying on the
examination table and, while she continued to cry, Bressi had her roll onto her
back. Bressi then performed several adjustments before C.H. told him that she
needed to go. C.H. got down from the table and left the room. She testified that
Bressi left the building with her and spoke to her as they were crossing the
parking lot. According to C.H., Bressi told her that she needed to go home
because she and her husband “needed to f* * * [their] brains out.”

C.H. testified that she continued to work at Summit Pain Specialists after her
encounter with Bressi because she could not afford to leave her job and similar
nursing positions were not readily available. She testified that she waited two
weeks to tell her husband what had happened because she was afraid of how he
would react. Meanwhile, a few days after the incident, she told Dr. Geiger what
Bressi had done. According to C.H., Dr. Geiger told her that she “had his
backing” if she chose to contact the police, but that it was her decision to make.
She testified that, following her disclosure to Dr. Geiger, a new office policy was
put into effect. Per the policy, no medical massages were to be performed and no
OMTs were to be performed without another employee being present in the room.
C.H. testified that she never intended to report Bressi to the police, but the police
                                                11


       later contacted her while investigating Bressi. She then met with the police and
       gave a written statement.

Bressi, 2016-Ohio-5211, at ¶ 27-30.

       {¶19} J.N. averred that she was present with her daughter (“A.N.”) and her daughter’s

friend (“C.D.2”) when A.N. received a phone call from C.H., which was on speakerphone. She

averred that C.H. asked A.N. during the phone call to “implicate Dr. Bressi in inappropriate

behavior and to contact Detective Swanson of the Stow Police Department.” J.N. averred that

C.H. became upset when A.N. “said this wasn’t true and would not do so.” She averred that

A.N. was discharged from Summit Pain shortly thereafter, “which began her downward spiral.”

In response, C.H. averred that she had no recollection of J.N.

       {¶20} In granting Bressi’s motion for leave to file a motion for a new trial, the trial court

determined that Bressi’s new evidence satisfied the second and third Petro prongs, i.e., the

evidence has been discovered since the trial and is such that it could not have been, in the

exercise of due diligence, discovered before the trial. See Holmes, 2006-Ohio-1310, at ¶ 11

(“Crim.R. 33(B) calls for an initial determination that there was unavoidable delay.”). The State

argues that because the names of all of Bressi’s patients were in his files, he could not establish

that he was unable to discover the evidence from A.C., J.N., and A.N. prior to trial if he indeed

exercised due diligence. “If a defendant could have discovered and produced evidence for trial,

then that evidence is not the proper subject of a motion filed under Crim.R. 33(A)(6).” State v.

Prade, 9th Dist. Summit No. 28193, 2018-Ohio-3551, ¶ 52.




       2
         C.D., as named in J.N.’s affidavit, appears to be the same person as K.D., as listed in
A.N.’s affidavit. The two names are almost identical, except for the spelling of the person’s first
name.
                                               12




       {¶21} The trial court, however, was presented with evidence that Bressi maintained a

client base of over 12,000 patients and paid an investigative firm approximately $30,000.00 to

review and investigate claims and witnesses.        Despite an extensive investigation, Bressi

presented evidence that it was not feasible to interview over 12,000 individuals and,

consequently, certain patients were not identified as possible victims before his trial was

concluded. Z.B. also testified that the over 20,000 emails he reviewed were previously protected

by attorney-client privilege and, thus, inaccessible until sometime after Bressi’s criminal trial.

Thus, we cannot say that the trial court erred in determining that the new evidence was

discovered after Bressi’s trial and could not have been, in the exercise of due diligence,

discovered before the trial.

       {¶22} The State next argues that the trial court abused its discretion in finding that the

new evidence was material to the issues, as the issue during trial was Bressi’s sexual imposition

of C.H., not whether Bressi’s business partners wanted him out of their practice. This Court

disagrees, however, as evidence that a plan or conspiracy was hatched among Bressi’s partners to

have C.H. embellish or fabricate testimony against Bressi so they could obtain Bressi’s shares of

the business without paying him is highly relevant to the issue of whether Bressi’s contact with

C.H. during the OMT rose to the level of criminal activity.

       {¶23} The State also argues that the trial court abused its discretion in finding that

Bressi’s new evidence was not merely cumulative to former evidence. The State directs us to the

fact that Bressi testified at trial that he believed the charges against him were the result of a

conspiracy promulgated by his Summit Pain partners in an attempt to force him out of the

practice. As such, the State contends that the new evidence merely confirms the version of
                                                13


events Bressi presented to the jury, in which his partners were trying to “buy out” and then “box

out” Bressi.

       {¶24} However, we see no error in the trial court’s determination that Bressi’s newly

discovered evidence is not merely cumulative to the evidence he presented at trial. Bressi

testified at trial that he was being secretly watched without his knowledge or permission to see if

he was doing anything inappropriate, which occurred at the behest of both Dr. Geiger and a law

firm that had represented Summit Pain in the past. He thus surmised that Dr. Geiger was

conspiring to oust him from their practice, and likewise testified that he “believe[d] Dr. Geiger

had talked to [C.H.] and [had given] her a heads-up about possibly [his] manipulation techniques

not being above board.” Bressi, 2016-Ohio-5211, at ¶ 41.

       {¶25} At the August 8, 2017, hearing, Z.B. testified as to voluminous, previously

unavailable emails between Bressi’s partners discussing ousting him from the practice without

paying him for his shares and discussing having C.H. embellish her testimony against Bressi.

The affidavits Bressi attached to his motion also provided new evidence that C.H. was involved

in closed door meetings with Bressi’s partners and allegedly urged another individual to contact

the police to implicate Bressi in inappropriate behavior. A.C.’s affidavit provided new evidence

that C.H. told others at Summit Pain, “I can’t believe the jury believed me” sometime after

Bressi’s trial, which C.H. chose not to deny in her own affidavit. Email and affidavit evidence of

Bressi’s partners’ and C.H.’s motivations and involvement in a conspiracy to falsely implicate

Bressi in criminal actions, as well as evidence of C.H.’s post-trial remarks, goes well beyond

what was available and offered through Bressi’s opinion testimony at trial. See, e.g., State v.

Knoefel, 11th Dist. Lake No. 2017-L-150, 2019-Ohio-267, ¶ 63 (Westcott Rice, J., concurring in

part and dissenting in part). We therefore cannot say that the trial court abused its discretion in
                                                 14


determining that Bressi’s newly discovered evidence is not “merely cumulative,” as it instead

provides a “much stronger foundation” for Bressi’s personal belief that he was conspired against,

and is “different, in kind and character” from the evidence he presented at trial. See State v.

Beavers, 2d Dist. Montgomery No. 22588, 2009-Ohio-5604, ¶ 35.

       {¶26} The State further argues that the trial court abused its discretion in determining

that Bressi’s new evidence does not merely impeach or contradict former evidence and further

discloses a strong probability that it will change the result if a new trial is granted. A Crim.R. 33

motion for a new trial must demonstrate the strong probability that newly discovered evidence

would have led to a verdict of not guilty. Prade at ¶ 30. The “mere possibility” that a new trial

might lead to a different outcome is not a sufficient basis upon which to grant a motion for a new

trial. Id. at ¶ 41. It is important to note that “[e]vidence that impeaches or contradicts the

evidence at trial is not excluded from consideration per se, but the character of that evidence is

relevant to whether a different result is a strong probability.” Jalowiec, 2015-Ohio-5042, at ¶ 38.

“[T]he nature of such evidence requires that a trial court exercise circumspection in determining

whether newly discovered evidence of that character would create a strong probability of a

different result, because such evidence quite often will not be likely to change the outcome.” Id.,

quoting Dayton v. Martin, 43 Ohio App.3d 87, 90 (2d Dist.1987).

       {¶27} The trial court found that Bressi’s new evidence does not merely impeach or

contradict; rather, it presents a “different version of the events.” At trial, the State presented

testimony from Summit Pain employees regarding Bressi’s noticeable change in appearance

beginning in 2011 and 2012. Bressi’s hygiene was now suffering as he wore wrinkled and

unclean clothes, failed to keep his hands clean, and appeared disheveled and more irritable than

usual. See Bressi, 2016-Ohio-5211, at ¶ 31-32. Moreover, a new written office policy was
                                                 15


instituted regarding Bressi and his female patients, which required a female chaperone to be

present when an OMT was performed on a female. See id. at ¶ 32. The jury also heard evidence

that Bressi was terminated from Summit Pain for violating the chaperone policy and for sexually

abusing patients. See id. at ¶ 33, 36.

       {¶28} The trial court determined that this evidence stood in “stark contrast” to the

evidence presented at the August 8, 2017, hearing and in Bressi’s motion for a new trial,

whereby “significant malfeasance” was occurring at Summit Pain involving undocumented

distributions, the destruction of documents and financial records, and a conspiracy to “box

[Bressi] out” without paying him while having C.H. embellish her allegations of criminal

conduct. The court found this to be a “substantial change in the underlying facts of the case,” as

the jury was never presented with any evidence indicating criminal or fraudulent actions by

Bressi’s partners or a conspiracy to “frame” him for sexual assault. The court determined that

Bressi’s new evidence not only corroborated his trial testimony that someone else may have

caused C.H. to believe Bressi’s contact with her during the OMT was inappropriate, but also

revealed “a criminal conspiracy against Bressi perpetrated by the owners of [Summit Pain] and

C.H.” The court further found that the new evidence “reveals significant credibility issues for

C.H., whose testimony as a victim was essential in supporting the only conviction against Bressi

* * *.” Given that Bressi never denied performing the OMT on C.H., and his trial testimony was

largely consistent with C.H.’s testimony as to the basic facts of that particular incident, the trial

court ultimately found that there was a strong probability this newly discovered evidence would

change the result of a new trial.

       {¶29} We cannot agree with the State’s argument that the trial court abused its

discretion in reaching its conclusions here. C.H. was undoubtedly the State’s key witness in
                                                 16


Bressi’s lone conviction for sexual imposition, and she testified in graphic detail regarding

Bressi’s alleged criminal behavior during the OMT. See Bressi, 2016-Ohio-5211, at ¶ 27-30.

Bressi did testify at trial as to a possible conspiracy against him and his belief that Dr. Geiger

may have given C.H. a “heads-up” that Bressi’s OMT techniques were not “above board,” but no

evidence of this possible conspiracy beyond Bressi’s own speculation was presented to the jury.

See id. at ¶ 41.    While the State argues that evidence C.H. embellished or fabricated her

allegations would merely impeach her trial testimony, “‘newly discovered evidence impeaching

key testimony may alone be sufficient to grant a new trial if introduction of the evidence at trial

probably would have changed the result.’” State v. Fortson, 9th Dist. Summit No. 18513, 1998

WL 224941, *3 (May 6, 1998), quoting State v. Brumback, 109 Ohio App.3d 65, 85-86 (9th

Dist.1996). See also State v. Robertson, 1st Dist. Hamilton No. C-160681, 2017-Ohio-7225, ¶

23-24 (determining that testimony supporting a motion for a new trial presenting a different

version of events from that offered by the State at trial, which calls into question the only

testimony identifying the defendant as the perpetrator, is “more than merely impeaching or

contradictory to the evidence presented at trial.”).

       {¶30} Upon careful review of the record in this matter, this Court cannot conclude that

the trial court abused its discretion in determining that Bressi’s newly discovered evidence

satisfied all six Petro factors. The trial court’s decision is not unreasonable, i.e., lacking a sound

reasoning process supporting it, nor is it arbitrary or unconscionable. See AAAA Ents., 50 Ohio

St.3d at 161; Blakemore, 5 Ohio St.3d at 219. Bearing in mind the highly deferential standard of

review applicable in this matter, we must conclude that the trial court acted within its sound

discretion in granting Bressi’s motion for a new trial.

       {¶31} The State’s sole assignment of error is overruled.
                                                17


                                                III.

       {¶32} The State’s sole assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT



HENSAL, J.
SCHAFER, J.
CONCUR.
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APPEARANCES:

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellant.

MICHAEL T. CALLAHAN, Attorney at Law, for Appellee.
