[Cite as State v. Brown, 2012-Ohio-5049.]


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

STATE OF OHIO                                       C.A. No.       26309

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
MELTON BROWN                                        COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 11 07 1872

                                 DECISION AND JOURNAL ENTRY

Dated: October 31, 2012



        DICKINSON, Judge.

                                            INTRODUCTION

        {¶1}    After watching for twenty to thirty minutes as a known prostitute attempted to

solicit drivers on East Buchtel Avenue, Akron police officers approached a known drug house to

arrest the woman for solicitation. One officer testified that he saw Melton Brown, who was on

the front porch, drop something over the railing before going inside the house. When the officer

investigated, he found three baggies containing drugs on the ground beside the porch beneath the

place Mr. Brown had been sitting on the railing. When Mr. Brown was arrested, police found

$650.00 on him.        A jury convicted him of possession of cocaine, possession of heroin,

aggravated possession of drugs, trafficking in cocaine, and trafficking in heroin, with a criminal

forfeiture specification on each count in regard to the $650.00. After holding an evidentiary

hearing, the trial court denied Mr. Brown’s motion for a new trial based on newly discovered
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evidence. He has appealed. This Court affirms because the trial court correctly denied his

motion for a new trial and his convictions were not against the manifest weight of the evidence.

                                          BACKGROUND

       {¶2}    A jury found Mr. Brown guilty of all charges on November 22, 2011. On

December 13, 2011, he moved the trial court for a new trial based on newly discovered evidence.

In support of his motion, Mr. Brown submitted the affidavit of Raymond Fox. At an evidentiary

hearing on the motion, Mr. Fox testified that he had witnessed the arrest of Mr. Brown and had

seen someone else discard the drugs police found on the ground by the porch. The trial court

denied the motion for a new trial because it determined that the newly discovered evidence

merely impeaches or contradicts the evidence produced at trial and the testimony does not have a

strong probability of changing the result of the trial.

                                            NEW TRIAL

       {¶3}    Under Rule 33 of the Ohio Rules of Criminal Procedure, “[a] new trial may be

granted on motion of the defendant . . . [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.” Crim. R. 33(A)(6). “To warrant the granting of a motion for a new trial in

a criminal case, based on the ground of newly discovered evidence, it must be shown that the

new evidence (1) discloses a strong probability that it will change the result if a new trial is

granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due

diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely

cumulative to former evidence, and (6) does not merely impeach or contradict the former

evidence.” State v. Petro, 148 Ohio St. 505, syllabus (1947).
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       {¶4}    This Court has explained that “Petro does not establish a per se rule excluding

newly discovered evidence as a basis for a new trial simply because that evidence is in the nature

of impeaching or contradicting evidence. The test is whether the newly discovered evidence

would create a strong probability of a different result at trial.” State v. Roper, 9th Dist. No.

22494, 2005-Ohio-4796, ¶ 20 (quoting State v. Cureton, 9th Dist. Nos. 03CA0009-M &

03CA0010-M, 2003-Ohio-6010, ¶ 19). Newly discovered evidence that merely impeaches or

contradicts the former evidence “very well could have resulted in a different verdict[,]” but that

is not enough to satisfy the test for granting a new trial.      State v. Pannell, 9th Dist. No.

96CA0009, 1996 WL 515540, *3 (Sept. 11, 1996). There must be a strong probability that the

new evidence would change the verdict. Id.

       {¶5}    At Mr. Brown’s trial, Officer Justin Ingham testified that he checked on the house

at 832 East Buchtel Avenue on July 12, 2011, because it had been the source of a variety of

complaints for drug activity and prostitution. That night, Officer Ingham saw a woman in front

of the house trying to get cars to stop for her on Buchtel Avenue. Officer Ingham recognized the

woman as a known prostitute and drug user. He testified that he watched the front of the house

for about 30 minutes. During that time, he saw the prostitute attempting to stop cars and a man

on the front porch of the house occasionally talking to her.

       {¶6}    Officer Ingham testified that, when he moved in to arrest the prostitute, he saw

two men in the yard near the driveway and one man on the porch with the prostitute. He

identified Mr. Brown as the man he saw sitting on the railing of the porch when he approached

the woman. The officer explained that he continued to watch Mr. Brown as he placed handcuffs

on the prostitute. He said that, due to his training, he kept an eye on Mr. Brown’s hands to be

sure he was not reaching for a weapon. The officer testified that he watched Mr. Brown “drop[ ]
                                                4


his right hand behind his leg out of view by the railing. You could see it kind of make a little

flinching motion. And then I could hear something hit the ground below him.” Officer Ingham

completed the arrest of the prostitute and escorted her to the police cruiser. Officer Ingham’s

partner, Brent Heller, testified that, as Officer Ingham passed him on his way to the cruiser,

Officer Ingham told him to watch the man on the porch because he thought he had seen the man

drop something. A few seconds later, Mr. Brown stood up and went in the house.

       {¶7}    When Officer Ingham returned from the cruiser, he found three baggies sitting on

top of a bunch of dried leaves on the ground near where Mr. Brown appeared to have dropped

something over the railing. The officer testified that the baggies were clean, dry, and free of

debris. He also testified that the baggies contained cocaine, heroin, and oxycodone. Officer

Ingham testified that he found the drugs around the side of the porch, near where Mr. Brown had

been sitting on the railing, which was the opposite side of the house from where the other two

men were standing in the driveway. He said that only Mr. Brown had been in that vicinity.

Officer Brent Heller testified that he went inside the house to arrest Mr. Brown after Officer

Ingham found the drugs on the ground. Officer Heller testified that Mr. Brown admitted that he

had been sitting on the porch when police arrived.

       {¶8}    At the hearing on the motion for a new trial, Mr. Brown presented the testimony

of Raymond Fox. Mr. Fox testified that he was at the Buchtel house when police arrested Mr.

Brown. He said that he had been unavailable until after Mr. Brown’s trial because he had been

serving time in jail before staying briefly at a number of different houses all over Akron. Mr.

Fox testified that the house on Buchtel was a crack house and that he had gone there that night to

get high. He testified that, when police arrived, there were six to eight people on the porch,

including three drug dealers, and several more people were standing in the yard. Mr. Fox said
                                                5


that he saw a drug dealer named Calvin Thomas drop the baggies of drugs that police found by

the porch. Mr. Fox also testified that he knew Mr. Thomas was a drug dealer because he had

purchased drugs from Mr. Thomas just moments before police arrived.

       {¶9}    The trial court denied Mr. Brown’s motion because it determined that Mr. Fox’s

testimony merely impeaches and contradicts the evidence produced at trial and that it did not

create a strong probability of changing the verdict. This Court agrees that the new evidence

merely contradicts the officers’ testimony about the number of people standing on the porch and

in the front yard when they approached to arrest the prostitute. Mr. Fox’s testimony also

contradicts Officer Ingham’s trial testimony that he both saw and heard Mr. Brown drop

something over the side railing of the porch and that Mr. Brown was the only person on that side

of the porch at the time. Although Officer Heller testified that Mr. Fox was present at the house

that night, the officer said that Mr. Fox was sitting just inside the front door while Mr. Fox

testified that he was outside on the porch talking to Mr. Brown when police arrived. Mr. Fox

testified that he has a criminal record and an active drug problem and that he had gone to the

Buchtel house that night to buy drugs and get high. His testimony, that merely contradicts that

of the two Akron City police officers, is unlikely to convince a jury to acquit Mr. Brown of these

charges. Without creating a strong probability of changing the outcome of the trial, the new

evidence fails to meet the standard of Criminal Rule 33. The trial correctly denied the motion for

a new trial. Mr. Brown’s first assignment of error is overruled.

                          MANIFEST WEIGHT OF THE EVIDENCE

       {¶10} Mr. Brown’s second assignment of error is that his convictions are against the

manifest weight of the evidence. He has argued that, because the house was known to harbor

drug users and dealers and at least four people were present outside with an untold number inside
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the home at the time, “the state was required to present some evidence connecting [Mr. Brown]

to the drugs [found] on the ground.” If a defendant argues that his convictions are against the

manifest weight of the evidence, we “must review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of witnesses and determine whether, in resolving

conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction[s] must be reversed and a new trial ordered.” State v.

Otten, 33 Ohio App. 3d 339, 340 (9th Dist. 1986).

       {¶11} The State presented evidence from a police officer who testified that he both saw

and heard Mr. Brown drop something off the side of the porch. Officer Ingham testified that Mr.

Brown was the only person in the vicinity of where the drugs were found. Although the officer

did not see the drugs in Mr. Brown’s hand, this is not a case of police having charged the person

standing closest to where drugs were eventually found. Both officers testified that they had

planned to arrest the prostitute and leave the scene, but after Officer Ingham saw Mr. Brown

discard something over the side of the porch, he decided to investigate. Officer Ingham had no

reason to walk around the side of the house except to check the ground beneath where Mr.

Brown had been sitting on the porch because he believed that he had seen Mr. Brown discard

something in that area. The officer testified that he found three clean, dry baggies of drugs on

top of a pile of dried leaves very close to where Mr. Brown had been sitting on the railing above.

Upon review of the record, we conclude that the jury did not lose its way when it found that Mr.

Brown was the person who dropped the drugs beside the house. Mr. Brown’s second assignment

of error is overruled.
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                                         CONCLUSION

       {¶12} Mr. Brown’s first assignment of error is overruled because the trial court correctly

denied his motion for a new trial based on newly discovered evidence. His second assignment of

error is overruled because his convictions are not against the manifest weight of the evidence.

The judgment of the Summit County Common Pleas Court 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.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT
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MOORE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

ANGELA M. KILLE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
