State v. Stewart , 2023 Ohio 1150 ( 2023 )

[Cite as State v. Stewart, 2023-Ohio-1150.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 22AP-531
(C.P.C. No. 16CR-4807)
v. :
(REGULAR CALENDAR)
Juan A. Stewart, :
Defendant-Appellant. :
D E C I S I O N
Rendered on April 6, 2023
On brief: G. Gary Tyack, Prosecuting Attorney, and
Paula M. Sawyers, for appellee.
On brief: Carpenter Lipps & Leland LLP, Kort Gatterdam,
and Erik P. Henry, for appellant.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Juan A. Stewart, appeals from an opinion and
judgment entry of the Franklin County Court of Common Pleas denying his motion for leave
to file a motion for new trial and his motion for new trial. For the following reasons, we
affirm.
I. Facts and Procedural History
{¶ 2} By indictment filed September 1, 2016, plaintiff-appellee, State of Ohio,
charged Stewart with one count of purposeful murder in violation of R.C. 2903.02(A); one
count of felony murder in violation of R.C. 2903.02(B); and one count of having a weapon
while under disability in violation of R.C. 2923.13. Both of the murder charges contained
accompanying repeat violent offender specifications. Additionally, all three of the charges
No. 22AP-531 2
contained accompanying firearm specifications. The charges related to the shooting death
of Edward Williams on January 20, 2015.
{¶ 3} Stewart waived his right to a jury trial on the weapon under disability count
and the accompanying firearm specification, as well as the repeat violent offender
specifications attached to the murder charges. The matter proceeded to a jury trial in May
2018 on the murder charges and the accompanying firearm specifications. The May 2018
trial ended with a hung jury on both counts, and the trial court declared a mistrial on those
counts. However, the trial court found Stewart guilty of having a weapon while under
disability and the accompanying firearm specification. The trial court sentenced Stewart to
an aggregate prison term of five years, journalizing his conviction and sentence in a June 7,
2018 amended judgment entry. Stewart appealed the trial court’s judgment, and this court
affirmed.1 State v. Stewart, 10th Dist. No. 18AP-496, 2020-Ohio-1245 (“Stewart I”).
{¶ 4} In August 2019, the trial court conducted a retrial on the two murder charges
and the accompanying firearm specifications. The jury found Stewart guilty on both counts
of murder and accompanying firearm specifications, and the trial court found Stewart
guilty of the repeat violent offender specifications. The trial court sentenced Stewart to an
aggregate prison term of 22 years to life, journalizing Stewart’s convictions and sentence in
an August 19, 2019 judgment entry. Stewart appealed, and this court affirmed. State v.
Stewart, 10th Dist. No. 19AP-615, 2020-Ohio-5344 (“Stewart II”).
{¶ 5} More than 20 months after this court’s decision affirming his murder
convictions, on August 1, 2022, Stewart filed a motion for leave to file a motion for new trial
and a motion for new trial. In his motions, Stewart asserted he had newly discovered
evidence in the form of an affidavit of a witness from his previous trial recanting her trial
testimony and that he was unavoidably prevented from discovering that evidence within
the timeframes set forth in Crim.R. 33(B). The state opposed Stewart’s motion for leave
and his motion for new trial.
1Stewart asserted two assignments of error in Stewart I, both challenging the imposition of the firearm
specification for his conviction of having a weapon while under disability. This court overruled both of his
assignments of error, finding the trial court did not err in sentencing Stewart on the firearm specification
and that Stewart did not receive the ineffective assistance of counsel relative to counsel’s failure to challenge
the imposition of the firearm specification.
No. 22AP-531 3
{¶ 6} In an August 22, 2022 opinion and judgment entry, the trial court denied
Stewart’s motion for leave and motion for new trial without a hearing. The trial court found
that Stewart had not demonstrated, by clear and convincing evidence, that he was
unavoidably prevented from discovering the alleged new evidence. Additionally, the trial
court concluded that even if it were to find that Stewart established grounds for leave, he
nonetheless failed to establish grounds for a new trial. Even construing the witnesses’
affidavit as true, the trial court determined the alleged new evidence would not change the
outcome of the trial. Thus, the trial court denied Stewart’s motion for leave and motion for
new trial. Stewart timely appeals.
II. Assignment of Error
{¶ 7} Stewart assigns the following sole assignment of error for our review:
The trial court erred in denying, without a hearing, appellant’s
motion for leave and motion for new trial.
III. Analysis
{¶ 8} In his sole assignment of error, Stewart argues the trial court erred in denying
his motion for leave and motion for new trial without a hearing.
{¶ 9} The decision of whether to grant a new trial, pursuant to Crim.R. 33, rests
within the sound discretion of the trial court. State v. Schiebel, 55 Ohio St.3d 71 (1990),
paragraph one of the syllabus. An appellate court reviews a trial court’s determination of a
Crim.R. 33 motion for an abuse of discretion. Id.; State v. Townsend, 10th Dist. No. 08AP-
371, 2008-Ohio-6518, ¶ 8. Similarly, an appellate court review’s a trial court’s ruling on a
motion for leave to move for a new trial for an abuse of discretion. State v. McNeal, 169
Ohio St.3d 47, 2022-Ohio-2703, ¶ 13, citing State v. Hawkins, 66 Ohio St.3d 339, 350
(1993). An abuse of discretion connotes a decision that is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 10} Stewart premised his motion for new trial on newly discovered evidence. A
trial court may grant a new trial under Crim.R. 33(A)(6) “[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.” The language of Crim.R. 33 makes it clear that a trial
court should not grant a new trial “ ‘unless it affirmatively appears from the record that a
No. 22AP-531 4
defendant was prejudiced by one of the grounds stated in the rule, or was thereby prevented
from having a fair trial.’ ” State v. Salinas, 10th Dist. No. 09AP-1201, 2010-Ohio-4738,
¶ 41, quoting Columbus v. Carroll, 10th Dist. No. 96APC01-90 (Aug. 27, 1996), citing
Crim.R. 33(E).
{¶ 11} Additionally, the rule provides a time limit in which a defendant has to file
the motion. “Motions for new trial on account of newly discovered evidence shall be filed
within one hundred twenty days after the day upon which the verdict was rendered.”
Crim.R. 33(B). Further, “[i]f it is made to appear by clear and convincing proof that the
defendant was unavoidably prevented from the discovery of the evidence upon which he
must rely, such motion shall be filed within seven days from an order of the court finding
that he was unavoidably prevented from discovering the evidence within the one hundred
twenty day period.” Crim.R. 33(B). Thus, “where a defendant seeks to file a motion for new
trial beyond the 120-day time limit, Crim.R. 33(B) requires the defendant to first obtain
leave before seeking a new trial.” State v. Golden, 10th Dist. No. 13AP-927, 2014-Ohio-
2148, ¶ 9, citing State v. Graggs, 10th Dist. No. 13AP-852, 2014-Ohio-1195, ¶ 5. See also
State v. Bethel, 10th Dist. No. 09AP-924, 2010-Ohio-3837, ¶ 13 (noting “Crim.R. 33(B)
contemplates a two-step procedure” in which a defendant must first seek leave to establish
he was “unavoidably prevented” from discovering the new evidence, and secondly, only
after the trial court makes that finding, the defendant must then file the actual motion for
new trial within seven days from the finding).
{¶ 12} In support of both his motion for leave and his motion for new trial, Stewart
relies on an affidavit from a witness at his trial, Roberta Turner, recanting her trial
testimony. At trial, Turner testified that, on the day of the shooting, she met Stewart at a
bar located very near the scene of the shooting and stayed there with him until about 15
minutes before the shooting occurred. Turner now avers her testimony was not truthful
and that she was not with Stewart that day. Stewart asserts he was unavoidably prevented
from discovering this evidence because he could not have known if or when Turner would
ever recant her testimony. However, even if we were to conclude that Stewart could
demonstrate Turner’s affidavit was newly discovered evidence that he was unavoidably
prevented from discovering, we nonetheless conclude the trial court did not abuse its
No. 22AP-531 5
discretion in denying Stewart’s motion for new trial as Turner’s recantation would not have
changed the outcome of the trial.
{¶ 13} To prevail on a motion for new trial based on newly discovered evidence, the
defendant must show 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 (1947),
syllabus.
{¶ 14} In Stewart II, we summarized the evidence presented at Stewart’s second
trial as follows:
Roberta Turner, a long-time friend of appellant, often
socialized with him at a club Damon Fluellen ran out of his
house located at 833 St. Clair Avenue. The club was open all
day and night and there were always “lots of people coming
and going.” (Tr. at 414.) Appellant lived in the neighborhood
and, according to Turner, regarded Fluellen as a mentor.
Late in the evening on January 19, 2015, Turner was with
appellant at a bar located within a 3 to 4 minute walk from
Fluellen’s house. Turner left the bar around 11:45 p.m.;
appellant remained there. At approximately 12:20 a.m. on
January 20, 2015, Turner exchanged several text messages
and phone calls with Fluellen, which prompted her to text
appellant asking if he was “alright.” (Tr. at 403.)
Meanwhile, at approximately 12:12 a.m., Verlie Smith, a
COTA bus driver, approached the intersection of 2nd and St.
Clair Avenues and heard four gunshots. He observed an
African-American man walking away from a truck parked on
St. Clair in the area where the gunshots were fired. The man
then walked toward two nearby houses. Smith could not see if
the man entered one of the houses or walked between them.
Almost simultaneously, a car parked in front of the truck
drove away. The man Smith had seen walking was not in the
car. For safety reasons, Smith sat through three cycles of red
lights. He eventually turned onto St. Clair and passed by the
truck. Through the open driver’s door, he observed a man
slumped over in the driver’s seat.
No. 22AP-531 6
Columbus Police Officer Jason Kulp and other officers were
dispatched to the scene of the shooting. Kulp described the
neighborhood as a “high-crime area” known for drug activity
and shootings. (Tr. at 264.) Upon arrival, Kulp observed the
victim seated in a truck parked directly across the street from
833 St. Clair. He then observed a man, later identified as
Fluellen, standing on the front porch of 833 St. Clair clad only
in his underwear. At Kulp’s direction, Fluellen re-entered the
house. A short time later, Fluellen came back outside, this
timely fully clothed. Because Fluellen’s behavior seemed
suspicious, officers sought and received permission to search
his house. The search revealed no evidence linked to the
shooting.
The police interviewed Smith, who described the man he saw
walking away from the truck as approximately 6 feet tall,
weighing between 180 and 200 pounds, wearing a dark jacket
and pants and a knit, toboggan-type hat. He did not see a bill
on the hat because the man was walking away and had his
back to Smith.
At trial, Kulp identified surveillance video obtained from the
Milo-Grogan Recreation Center, which is located across the
street from the scene of the shooting. The video depicts a car
with its headlights on approach and park on the street across
from 833 St. Clair. Approximately three minutes later, a truck
arrives and parks behind the car. The video then depicts
flashes of gunfire near the driver’s side of the truck, followed
by the shadow of a person walking between the car and the
truck. The car then drives away. Very shortly thereafter, a light
at the back of 833 St. Clair illuminates, and the back door
opens momentarily. The video then depicts a person moving
around in the backyard.
Thomas Martin lives on Starr Avenue behind 833 St. Clair. In
the early morning hours of January 20, 2015, he observed a
police helicopter with its lights illuminated hovering over his
house. Ten to fifteen minutes later, he heard the chain-link
fence in his backyard rattle; he assumed that someone had
jumped over the fence. Later that morning he found a red
Chicago Bulls baseball hat on the ground along the fence line.
Thinking the person who lost it would likely return for it, he
left it there. He retrieved the hat the next day and turned it
over to the police.
No. 22AP-531 7
Detective Suzanne Nissley of the Crime Scene Search Unit
identified several photographs taken at the crime scene which
depict, among other things, Williams’ body inside the truck.
The photographs also depict evidence recovered from the
scene, including four .40 caliber spent shell casings found in
the street and on the sidewalk near Williams’ vehicle, as well
as a .40 caliber Smith & Wesson semi-automatic handgun
(with 1 live round in the chamber and a magazine containing
8 live rounds) found in the brush beside a fence by the alley at
the rear of 833 St. Clair.
Matthew White, a firearms examiner with the Bureau of
Criminal Investigation (“BCI”), examined and test-fired the
recovered weapon, found it to be operable, and determined
that the four spent casings and three bullets recovered from
the scene (two of which were recovered from Williams’ body)
had been fired from that weapon.
Timothy Augsback, a BCI forensic scientist, analyzed DNA
swabs taken from the firearm, including the trigger, the
handled areas (the grip and the slide), the magazine, and the
nine live rounds. That analysis revealed that the trigger, the
magazine, and the handled areas contained a mixture of DNA,
with appellant included as the only major contributor. DNA
deposited by the minor contributors was insufficient to test.
No DNA profile was obtained from the nine rounds. Augsback
also analyzed DNA swabs taken from the baseball hat, which
revealed a mixture of DNA, with appellant included as the
only major contributor. He acknowledged that it is not
possible to determine how or when DNA is deposited on an
item; accordingly, he could not definitively state that
appellant fired the weapon on January 20, 2015.
Detective James Howe conducted a digital forensic
examination and cell-site analysis of appellant’s cell phone for
the relevant time period. Within minutes of the shooting,
appellant both received and sent calls and text messages from
the general vicinity where the shooting occurred. Appellant’s
browser history revealed that after the shooting, he searched
a local news website numerous times for information
pertaining to the shooting.
Appellant presented the following evidence. Katie Hodge, a
friend of appellant, communicated via cell phone with him
several times on January 19 and 20, 2015. According to
No. 22AP-531 8
Hodge, appellant gave no indication during these
communications that he was involved in Williams’ shooting.
Jakita Smith-Goolsby, the mother of appellant’s children,
averred that appellant grew up in the Milo-Grogan area and
lived there with his mother on January 20, 2015. He had many
friends in the area with whom he often shared clothing items,
including his vast collection of hats. She spoke with appellant
by cell phone minutes before and after the shooting. She
found nothing odd about their conversations; indeed,
appellant was breathing normally and otherwise gave her no
reason to believe that anything unusual had happened. She
was shocked to later learn that appellant had been charged
with Williams’ murder.
In addition to the testimony and exhibits presented, the
parties entered into numerous stipulations. (State’s Ex. GG.)
Many of the stipulations confirmed the accuracy of evidence
submitted by the state, including the events depicted on
various surveillance videos (State’s Ex. K, J, and L), records
from appellant’s cell phone (State’s Ex. Q, Q1, Q2a and Q3a),
records from Turner’s cell phone (State’s Ex. CC), records
from Williams’ cell phone (State’s Ex. P1), aerial photographs
of the crime scene (State’s Ex. I), autopsy photographs and
findings of Franklin County Deputy Coroner Dr. Kenneth
Gerston (State’s Ex. B11, B14, B17, B20, B29, and U), a
photograph of Williams (State’s Ex. V), still images of
appellant taken from the cell phone video recorded on
November 9, 2014 (State’s Ex. Y, Y1, Y2, and Y3), photographs
of appellant (Def. Ex. 1A through 1RR), and photographs
depicting the location and condition of the firearm when
recovered from the alley and fence line behind 833 St. Clair
shortly after the homicide (State’s Ex. A38, A39, A40, and
A41.) The stipulations also included chain-of-evidence
information related to the baseball hat (State’s Ex. S1), DNA
standards and submissions from Williams and appellant, and
information regarding recovery and submission of the firearm
and ammunition (State’s Ex. M and N3b).
(Footnotes omitted.) Id. at ¶ 5-18. The parties agree that Turner’s testimony from the first
trial was consistent with her testimony from the second trial.
{¶ 15} In both his motion for leave and his motion for new trial, the alleged “new
evidence” Stewart relies on is Turner’s affidavit recanting her testimony from Stewart’s
trials. More specifically, in her affidavit that Stewart filed in support of his motions, Turner
No. 22AP-531 9
avers that she did not testify truthfully when she placed Stewart at the Happy Family Bar
on the night of the shooting. Despite Turner’s testimony to the contrary at both Stewart’s
first and second trials, Turner now avers she did not meet Stewart at the Happy Family Bar
at any time during the day or night of the shooting and that she had no contact with Stewart
after 3:00 p.m.
{¶ 16} “Recantation by a significant witness does not, as a matter of law, entitle the
defendant to a new trial.” State v. Woodward, 10th Dist. No. 08AP-1015, 2009-Ohio-4213,
¶ 20, citing State v. Walker, 101 Ohio App.3d 433, 435 (8th Dist.1995). Instead, the
pertinent inquiry is whether the new testimony, if credible, would materially affect the
outcome of the trial. Id. at ¶ 20, citing State v. Burke, 10th Dist. No. 06AP-686, 2007-Ohio-
1810, ¶ 18.
{¶ 17} As the trial court noted, even construing Turner’s affidavit as credible,
Turner’s new testimony does not disclose a strong probability of a different outcome at a
new trial. Turner’s original trial testimony placing Stewart near the murder scene was
cumulative to other evidence presented at trial linking Stewart to the shooting, including
Stewart’s DNA on the murder weapon, his DNA on a baseball cap found near the crime
scene, cell phone evidence from Stewart’s phone establishing Stewart was at or near the
scene of the shooting, and searches on Stewart’s phone for media coverage of the shooting
before the murder had been reported to the media. Turner’s new testimony through her
affidavit does not contradict any of this evidence linking Stewart to the crime. At best,
Turner’s affidavit demonstrates she did not know where Stewart was on the day of the
shooting. Thus, we agree with the trial court that even if Turner’s affidavit was considered
to be credible, it would not have any effect on the outcome of the trial. Accordingly, the trial
court did not abuse its discretion in denying Stewart’s motion for new trial.
{¶ 18} Finally, to the extent Stewart argues the trial court should have held a hearing
before ruling on his motion for new trial, we note that Crim.R. 33 does not, by its terms,
require a hearing on a motion for new trial. Thus, the decision whether to conduct a hearing
on a motion for new trial is left to the sound discretion of the trial court. See, e.g., State v.
Cannon, 8th Dist. No. 103298, 2016-Ohio-3173, ¶ 16, citing State v. Smith, 30 Ohio App.3d
138, 139 (9th Dist.1986); State v. Hatton, __ Ohio St.3d __, 2022-Ohio-3991, ¶ 28 (a
defendant is entitled to an evidentiary hearing only “when the allegations in the motion
No. 22AP-531 10
demonstrate substantive grounds for relief”), citing State v. Calhoun, 86 Ohio St.3d 279,
289 (1999). We have already determined that, even construing Turner’s affidavit as
credible, Stewart’s motion does not create a strong probability of a different result at trial
given the ample other evidence demonstrating his guilt that Turner’s affidavit does not
purport to contradict. Stewart does not articulate how an evidentiary hearing would have
been anything other than futile. Therefore, we conclude the trial court did not abuse its
discretion in denying Stewart’s motion for new trial without a hearing.
{¶ 19} For these reasons, we overrule Stewart’s sole assignment of error.
IV. Disposition
{¶ 20} Based on the foregoing reasons, the trial court did not abuse its discretion in
denying Stewart’s motion for leave to file a motion for new trial and his motion for new trial
based on newly discovered evidence without a hearing. Having overruled Stewart’s sole
assignment of error, we affirm the judgment of the Franklin County Court of Common
Pleas.
Judgment affirmed.
BEATTY BLUNT, P.J., AND MENTEL, J., concur.