State v. Gillispie

[Cite as State v. Gillispie, 2012-Ohio-1656.]

[Please see decision and entry at 2012-Ohio-2942.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
: Appellate Case No. 24456
Plaintiff-Appellee :
: Trial Court Case No. 90-CR-2667
v. :
:
ROGER DEAN GILLISPIE : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant : :
...........

OPINION

Rendered on the 13th day of April, 2012.

...........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

JIM PETRO, Atty. Reg. #0022096, 1933 Lake Shore Drive, Columbus, Ohio 43204
and
MARK GODSEY, Atty. Reg. #0074484, Ohio Innocence Project, University of Cincinnati
College of Law, Post Office Box 210040, Cincinnati, Ohio 45221
Attorneys for Defendant-Appellant

.............

FAIN, J.

{¶ 1} Defendant-appellant Roger Gillispie appeals from an order of the trial court

denying his motion for a new trial. He contends that the trial court abused its discretion both
 2

in holding that newly discovered evidence regarding an alternative suspect is inadmissible

hearsay, and in finding that the evidence is not material to Gillispie’s defense. We conclude

that the newly discovered evidence is not hearsay because it is not offered for the truth of the

matter asserted, and the evidence is material to Gillispie’s defense. We also conclude that the

newly discovered evidence has a strong probability of changing the outcome of a new trial.

Accordingly, the order of the trial court denying Gillispie’s motion for a new trial is Reversed,

and this cause is Remanded for a new trial.

I

{¶ 2} Between 3:00 and 4:00 p.m. on the afternoon of Friday, August 5, 1988, a man

entered the front passenger door of S.C.’s car as she was leaving a store parking lot in

Harrison Township, Ohio. Pointing a chrome handgun at S.C., the man forced her to drive

behind a vacant building in the shopping center. Once parked, the man exposed himself,

fondled S.C.’s breasts, and forced her to perform oral sex. When the man got out of the car

and ordered S.C. out, she grabbed her keys from under the seat where the man had thrown

them, and drove away.

{¶ 3} Shortly after 7:00 p.m. on Saturday, August 20, 1988, B.W. and C.W.

were getting into their car in the parking lot of a Miami Township shopping center, when a

man pushed his way into the back seat, claiming that he was store security and demanding to

see their purses. Pointing a chrome handgun at the women, the man forced them to drive to a

secluded area and to get out of the car. The man then exposed himself, fondled the women’s

breasts, and forced each of them to perform oral sex on him. The man blindfolded the

women and drove them back to the parking lot from which he had abducted them. Before
 3

leaving the car, the man stole money, a lighter, and a pack of cigarettes.

{¶ 4} B.W. and C.W. reported the rapes to their parents, who called the Miami

Township Police. Upon learning of the attacks on B.W. and C.W., S.C. reported her rape to

the police. Detective Gary Bailey was assigned to investigate the cases. The three women

described their attacker as being talkative, though none of them noticed any kind of accent.

The man identified himself as a security guard named Roger, who claimed to have been

sexually abused by a relative when he was about twelve years old. During both attacks, the

man lit a cigarette and said that he needed a ride to Columbus, Ohio.

{¶ 5} S.C. described her attacker as 6 feet tall and 200 pounds, with a stocky build.

He had short, light brown or dark blonde hair, a mustache, light blue eyes, a tanned face, and a

strong odor of cologne; she saw that he wore a gold chain with a medallion, but she did not

notice whether he had a hairy chest. S.C. assisted police in compiling a composite sketch of

her attacker.

{¶ 6} B.W. and C.W. described their attacker as being in his early 20's, over 6 feet tall,

and weighing 250 pounds, with light reddish-brown hair that was short on top and over the

ears, but longer in the back. Both women stated that their attacker did not have any gray hair.

The man had a mustache and a wide, darkly tanned face. The man spoke in a low,

authoritative voice and wore sunglasses. Neither woman noticed that he had a hairy chest.

The man said that he was from both Columbus, Ohio and Corpus Christi, Texas, and he

claimed to make a living by killing people for $1,000. C.W. also noticed that their attacker

had bushy eyebrows and acne blemishes along his jaw. B.W. and C.W. assisted the police in

putting together a composite sketch of their attacker. Their composite was similar to the one

compiled by S.C.
 4

{¶ 7} Detective Bailey and his supervisor, former Sergeant Steven Fritz, believed that

the same man had raped all three women. When one of the sketches was publicized, a

security supervisor at General Motors (GM) saw it and told the chief of GM plant security that

the sketch resembled Gillispie. It appears that the police were not notified at that time. The

police followed up on more than 20 leads, and many of those individuals came close to

resembling the victims’ descriptions of their attacker. However, because the police felt that

no “suitable” suspects had been identified, no photo-spread was put together, and the

investigation stalled.

{¶ 8} About a year later, the GM security supervisor told the new chief of plant

security, Richard Wolfe, that the composite sketch resembled Gillispie. Wolfe and other GM

security personnel spoke with Bailey and Fritz and provided them with a copy of Gillispie’s

photo identification card. Wolfe later made several calls to Fritz asking what was going to be

done about Gillispie, and in due course, Fritz explained that after further investigation, they

had eliminated Gillispie as a suspect.

{¶ 9} Fritz explained that he and Bailey “eliminated Gillispie as a suspect because of

the extreme differences in Gillispie’s physical appearance compared to that of the rapist, and

because Gillispie, with a solid job and clean record, did not fit the profile of the brazen rapist

in this case. Also, Wolfe’s tip was suspicious. The WANTED poster for the case had been

posted for nearly 2 years at the GM plant, but Wolfe waited until he had a nasty fight with

Gillispie, and fired him, before suddenly deciding that he should turn in Gillispie as a suspect.

Wolfe had no credible explanation for why Gillispie should be a suspect, other than the fact

that Wolfe simply hated Gillispie for work-related reasons. As tips go, the one from Wolfe

regarding Roger Dean Gillispie was a particularly unreliable one.”
 5

{¶ 10} Bailey provided much of the same information as Fritz regarding the

investigation of Gillispie and their elimination of him as a suspect. Furthermore, Bailey

noted discrepancies between the pants size noted by one of the victims when the rapist

dropped his pants and differences between Gillispie’s build and the victims’ descriptions of

their attacker.

{¶ 11} In June of 1990, Detective Scott Moore took over the investigation. A couple

of months earlier, Wolfe had provided photo identification cards of five GM employees,

including Gillispie, all of whom he believed resembled the composite sketch. Moore

compiled a photo-spread of six photographs. The spread included the photo of Gillispie, but

did not include photos of any of the four other GM employees. Moore contacted B.W. and

C.W., both of whom separately and independently identified Gillispie as their attacker from

the photo-spread. About six weeks later, Moore contacted S.C., who also identified Gillispie

as her attacker. No other individuals were investigated as potential suspects by Moore.

{¶ 12} Gillispie spoke briefly with Moore about the rapes. Gillispie denied any

knowledge of the attacks. Moore felt that the interview was “going nowhere” and ended the

interview not long after it began.

{¶ 13} Moore obtained a search warrant for Gillispie’s home. Although all three

victims had given descriptions of their attacker’s clothing and shoes, Moore did not recover

any clothing or shoes matching the descriptions given by the three victims. Nor did he find

any jewelry, sunglasses, belts, cigarettes, handguns, or other evidence.

{¶ 14} As a result of the identifications, Gillispie was indicted on nine counts of Rape,

three counts of Kidnapping, three counts of Aggravated Robbery, and three counts of Gross
 6

Sexual Imposition. All counts, except those of GSI, included firearm specifications.

Following a jury trial in February, 1991, Gillispie was convicted of all counts and

specifications, with the exception of two of the Aggravated Robbery counts.

{¶ 15} Shortly after trial, but before sentencing, one pubic hair and seven head hairs

that had been recovered from B.W. and C.W.’s clothing were found at the Miami Valley

Regional Crime Lab (MVRCL). Microscopic testing revealed that none of the hairs

belonged to Gillispie. As a result of the new evidence, Gillispie sought and was granted a

new trial.

{¶ 16} Gillispie was re-tried by a jury in June, 1991. Gillispie testified, and he called

numerous witnesses to testify on his behalf, many of whom testified to his trustworthy and

honest nature. Primarily, Gillispie argued that the women were mistaken in their

identification of him as their attacker.

{¶ 17} Gillispie’s witnesses agreed that Gillispie naturally has dark brown hair and

that he started to go gray at the temples in the early 1980's while still in high school. He does

not color his hair, and his hair does not noticeably lighten or turn reddish in the sun. The

witnesses testified that Gillispie burns and blisters easily; he does not tan well. Gillispie has

an extreme dislike for cigarettes, and because Gillispie has a hairy chest, he does not wear

jewelry around his neck. Gillispie rarely wears a belt, other than with his work uniform.

None of the witnesses ever saw Gillispie with a handgun. Since Gillispie’s father is named

Roger, Gillispie has always been called by his middle name, Dean. Gillispie does not have

acne along his jaw. Several witnesses did note the cleft in Gillispie’s chin, a characteristic

not mentioned by any of the three victims in regard to their attacker.
 7

{¶ 18} Gillispie also offered partial alibis for the dates of the rapes. Several

witnesses testified that during the summer of 1988, Gillispie spent at least every other

weekend boating in Kentucky with Brian Otis Poulter and Jerry Fyffe. Generally, the men

would head to Kentucky early on Friday afternoon, and they would return late on Sunday

afternoon or early on Sunday evening. On the weekend that C.W. and B.W. were raped, the

men went boating. Gillispie’s alibi witnesses testified that they remembered that particular

weekend because Fyffe’s father had noted on his calendar that one of his foxhounds had

birthed a litter of puppies. It was a very hot weekend, and when the men got home at about

3:00 p.m., they carried the dog and her puppies into the basement of Fyffe’s home to keep

them cool and then unpacked their gear.

{¶ 19} On the day that S.C. was raped, Gillispie claims to have spent the afternoon

driving around with Poulter in Poulter’s new convertible. At about 6:00 p.m., they ended up

at the home of Lisa Pittman, who invited the men back to her house for a party the following

night. The witnesses testified that they remembered the weekend because another friend,

Marie Woods, had noted Pittman’s party on her calendar.

{¶ 20} Gillispie was convicted of all counts and specifications, and he was sentenced

to a total of not less than 22 years, but not more than 56 years, in prison. Gillispie moved for

a judgment of acquittal and for a new trial, and he filed a separate motion for a new trial. The

trial court overruled the motions, and in a consolidated appeal, we affirmed Gillispie’s

conviction and sentence, as well as the denial of his motions for a new trial. State v.

Gillispie, 2d Dist. Montgomery Nos. 12941 & 13585, 1993 WL 10927, (Gillispie I). Three

years after his conviction, Gillispie filed his first petition for post-conviction relief, which the

trial court denied. We affirmed the trial court’s denial of Gillispie’s petition. State v.
 8

Gillispie, 2d Dist. Montgomery No. 14595, 1995 WL 41334, (Gillispie II).

{¶ 21} In 1996, and again in 1997, Gillispie requested that the trial court order the

State to preserve the hairs that had been recovered from B.W. and C.W.’s clothing. The trial

court ordered that the samples be preserved. Gillispie then successfully sought permission to

have his own DNA expert test the hairs. When the State did not promptly release the samples

to his expert, Gillispie sought an order requiring the State to do so. The State objected, and

Gillispie explained that while the hairs had already been found not to be his own, he hoped

that DNA testing could link the hairs to a potential suspect.

{¶ 22} In 1998, Gillispie filed a motion for a new trial, arguing that if the DNA testing

demonstrated that the potential suspect was the source of any of the hair samples, he was

entitled to a new trial. The trial court denied Gillispie’s motion for a new trial but did grant

his request for DNA testing at his family’s expense. Two years later, when an employee at

the MVRCL opened, reinventoried, and resealed the State’s exhibit containing the hairs, in

anticipation of releasing the exhibit to Gillispie’s expert, the employee found that two of the

head hairs were missing. Gillespie sought to have the State held in contempt for failing to

preserve the evidence; he also requested a new trial based on the loss of evidence. The trial

court overruled the motions, and we affirmed the trial court’s decision. State v. Gillispie, 2d

Dist. Montgomery No. 18852, 2002-Ohio-1774 (Gillispie III).

{¶ 23} In 2003, Gillispie requested that mitochondrial DNA testing be performed on

the remaining hairs, at his own expense. The testing was allowed, and it revealed that all of

the hairs belonged to either B.W. or C.W. The following year, Gillispie filed an application

for post-conviction DNA testing of various other items of evidence. The State opposed the

motion, and the trial court denied it.
 9

{¶ 24} In 2008, Gillispie filed a second petition for post-conviction relief or, in the

alternative, a motion for a new trial. He argued that new evidence, which fell into three broad

categories, had come to light, to wit: (1) evidence of police corruption, perjury, witness

tampering, and other official misconduct by Detective Moore; (2) additional evidence that an

alternative perpetrator, Kevin Cobb, had committed the offenses; and (3) new scientific

understanding in the field of eyewitness identification demonstrating that the eyewitness

identification process in this case was flawed. The State opposed both Gillispie’s petition

and his motion for a new trial. The trial court granted summary judgment in favor of the

State on the petition for post-conviction relief and denied the motion for a new trial.

{¶ 25} Gillispie appealed. We concluded that Gillispie presented sufficient new

evidence regarding Cobb, the alternative perpetrator, to warrant a hearing in order to

determine whether he is entitled to a new trial under Crim.R. 33. State v. Gillispie, 2d Dist.

Montgomery Nos. 22877, 22912, 2009-Ohio-3640 (Gillispie IV), ¶ 138. That new evidence

consisted primarily of the following: (1) Cobb has used the name Roger; (2) Cobb’s voice is

distinctively authoritative; (3) Cobb has bragged about working for the CIA as a contract

killer; (4) Cobb asked how the “ladies” had described their assailant although he had not been

told that there were multiple rape victims; and (5) three photographs of Cobb, including one

from 1990, are similar to the composite sketches and to the victims’ descriptions of their

attacker. Id. Additionally, “[a]lthough we concluded that the trial court did not abuse its

discretion when it found that the new expert testimony regarding eyewitness identification did

not, by itself, warrant a new trial, the trial court, upon remand, may consider the effect that

such testimony might have in conjunction with any new evidence regarding Cobb.” Id. at ¶

154.
 10

{¶ 26} On remand, the trial court conducted a hearing on Gillispie’s motion for a new

trial and concluded that most of the newly discovered evidence is inadmissible hearsay. The

court further found that none of the evidence is relevant because it is too remote in time, it is

not directly related to the crimes, and it does not prove or disprove any material fact.

Therefore, the court denied Gillispie’s motion for a new trial. From the order denying his

motion for a new trial, Gillispie appeals.

{¶ 27} During the pendency of this appeal, the United States District Court for the

Southern District of Ohio has granted Gillispie a writ of habeas corpus ordering that he be

released from custody unless he is retried and convicted. Gillispie v. Timmerman-Cooper,

S.D. Ohio No. 3:09-cv-471, 2011 WL 6258450 (December 15, 2011). The ground for that

relief was a holding that the State’s failure to have informed Gillispie that he had been

eliminated as a suspect by the police officers who initially investigated the rapes constituted a

violation of his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963). We rejected a similar argument in Gillispie IV, at ¶ 101-105.

{¶ 28} Of course, if Gillispie is either retried or released as a result of the federal

habeas corpus proceeding, that will render this appeal moot. But the relief ordered by the

federal court is subject to appeal to the United States Court of Appeals for the Sixth Circuit,

which is likely to take substantial time to resolve. In the meantime, it is incumbent upon us

to resolve the issues raised in this appeal.

II

{¶ 29} Gillispie’s First and Second assignments of error are as follows:
 11

THE TRIAL COURT FUNDAMENTALLY MISAPPLIED THE

HEARSAY RULE, AND ERRED WHEN IT RULED THAT STATEMENTS

WERE HEARSAY EVEN THOUGH THEY WERE NOT OFFERED FOR

THE TRUTH OF THE MATTER ASSERTED.

THE TRIAL COURT ERRED IN RULING THAT THE EVIDENCE

PRESENTED BY GILLISPIE AT THE HEARING DOES NOT ENTITLE

HIM TO A NEW TRIAL ON THE GROUNDS THAT THE EVIDENCE IS

NOT RELEVANT AND DOES NOT CREATE A ‘NEXUS’ BETWEEN

COBB AND THE CRIMES IN THIS CASE.

{¶ 30} In his First Assignment of Error, Gillispie contends that the trial court abused

its discretion in holding that the newly discovered evidence regarding Kevin Cobb as an

alternative suspect is inadmissible hearsay. In his Second Assignment of Error, Gillispie

maintains that the trial court abused its discretion in finding that the evidence is insufficient to

warrant a new trial because it fails to create a nexus between the alternative suspect and the

crimes of which Gillispie was convicted and because the evidence is not material to Gillispie’s

defense.

{¶ 31} A trial court’s decision on a Crim.R. 33 motion for a new trial will not be

reversed absent an abuse of discretion. State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54

(1990), paragraph one of the syllabus; State v. Matthews, 81 Ohio St.3d 375, 378,

1998-Ohio-433, 691 N.E.2d 1041.

{¶ 32} Generally, “when a determination has been confided to the discretion of a trial

court, a reviewing court must give some deference to the trial court’s determination.
 12

[However,] [t]he extent of that deference is situationally dependent.” State v. Beavers, 2d

Dist. Montgomery No. 22588, 2009-Ohio-5604, ¶ 24. In part, the extent of the deference to

be accorded to a trial court’s determination depends on the amount of guidance informing the

determination that is available from a higher authority, in the form of case law or statutory

authority. Id.

{¶ 33} Here, the teachings of State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947),

and the numerous cases that followed Petro, provide significant guidance for a trial court’s

decision whether to grant a defendant’s motion for a new trial based on newly discovered

evidence; the decision whether to grant a new trial is therefore not made in a jurisprudential

vacuum. Beavers, at ¶ 25. “Where a case has been tried to a jury, a motion for a new trial

requires the court to determine whether it is likely that the jury would have reached a different

verdict had it considered the newly discovered evidence. The task of the reviewing court is to

then determine whether the trial court abused its discretion in making that determination.” Id.

at ¶ 26, citing Dayton v. Martin, 43 Ohio App.3d 87, 539 N.E.2d 646 (1987).

{¶ 34} “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.” Petro, at

syllabus. See, also, Crim.R. 33(A)(6). This appeal centers around the first and fourth Petro

requirements.

{¶ 35} While the granting of a new trial based on newly discovered evidence
 13

obviously involves consideration of newly discovered evidence, the requirement that there be

a strong probability of a different result less obviously requires consideration of the evidence

adduced at trial. In general, the stronger the evidence of guilt adduced at trial, the stronger

the newly discovered evidence would have to be in order to produce a strong probability of a

different result. Conversely, the weaker the evidence of guilt at trial, the less compelling the

newly discovered evidence would have to be in order to produce a strong probability of a

different result. In view of the beyond-a-reasonable-doubt burden of proof, newly discovered

evidence need not conclusively establish a defendant’s innocence in order to create a strong

probability that a jury in a new trial would find reasonable doubt.

{¶ 36} This case does not involve overwhelming evidence of Gillispie’s guilt. There

is no physical evidence connecting Gillispie to the rapes. The only evidence linking him to

the crimes is the perpetrator’s use of the name Roger and the victims’ eyewitness

identifications, which were made two years after the crimes were committed. The record

further reveals that the jury deliberated long and hard, twice advising the trial court on the

second day of deliberations that it was deadlocked, with eight of the twelve jurors in favor of

acquittal. Only after a jury charge pursuant to Allen v. United States, 164 U.S. 492, 17

S.Ct.154, 41 L.Ed. 528 (1896), and State v. Howard, 42 Ohio St.3d 18, 537 N.E.2d 188

(1989), and several more hours of deliberation, did the jurors unanimously decide to convict

Gillispie.

{¶ 37} Gillispie’s defense at trial was two-fold. In part, he offered partial alibis for

his whereabouts at the times of the rapes. Primarily, however, Gillispie argued that the

victims were mistaken in their identifications of him as their attacker. Gillispie focused on

the numerous discrepancies between the victims’ descriptions and composite sketches of their
 14

attacker and his actions, and Gillispie’s own appearance and behaviors.

{¶ 38} Gillispie was aware of Cobb at the time of his trial. In fact, his attorney asked

Detective Moore, without any objection from the State, whether there had been any

investigation of Cobb, who fits the physical description of the rapist, and who had been

arrested for a somewhat similar crime in Fairfield, Ohio. Moore testified that he was

unfamiliar with Cobb and that Gillispie was the only lead he pursued, despite the fact that

Moore had been provided with four other photographs of GM employees who bore some

resemblance to the WANTED poster. Gillispie had no evidence to offer in support of Cobb

as an alternative suspect at that time.

{¶ 39} “ ‘Whether rooted directly in the Due Process Clause of the Fourteenth

Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment,

the Constitution guarantees criminal defendants “a meaningful opportunity to present a

complete defense.” ’ ” Gillispie IV, 2009-Ohio-3640, at ¶ 120, quoting Crane v. Kentucky,

476 U.S. 683, 689-690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1987), in turn quoting California v.

Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). “ ‘A complete

defense’ may include evidence of third-party guilt.” Id., citing Holmes v. South Carolina,

547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006).

{¶ 40} Since his trial, Gillispie has discovered more information about the similarities

between Cobb and the victims’ descriptions of their rapist that would tend to increase the

likelihood of a jury finding reasonable doubt that Gillispie was the perpetrator. The trial

court found that the newly discovered evidence did not link Cobb to the rapes, but Gillispie

need not prove that someone else committed the offense in order to establish reasonable

doubt. “ ‘There is no requirement that the proffered evidence [of a third party’s guilt] must
 15

prove or even raise a strong probability that someone other than the defendant committed the

offense. Rather, the evidence need only tend to create reasonable doubt that the defendant

committed the offense.’ ” State v. Walker, 5th Dist. Stark No. 2005-CA-00286,

2006-Ohio-6240, ¶ 50, quoting Johnson v. United States, 552 A.2d 513, 516, (D.C. Cir. 1989)

(emphasis in original).

{¶ 41} At trial, the jury was presented with evidence tending to cast doubt upon the

accuracy of the victims’ identifications. Gillispie and numerous other witnesses testified

regarding Gillispie’s features and habits – he tends to burn rather than tan; he refuses to wear

necklaces because they tangle in the hair on his chest; he neither owns nor has been seen with

a handgun; he rarely wears a belt; he does not have bushy eyebrows or acne along his jaw; he

hates cigarettes; he speaks with a twang or drawl; he has always used his middle name Dean

rather than his first name Roger, because that is also his father’s name; and he has a noticeable

cleft in his chin, which was not mentioned by any of the three victims.

{¶ 42} Additionally, Gillispie’s counsel emphasized the undisputed evidence that

Gillispie’s hair is naturally dark brown, with progressively graying temples beginning in 1982.

C.W. was asked about the discrepancy between her description of her attacker’s hair as being

light reddish-brown with no gray and the defendant’s hair. C.W. acknowledged that

Gillispie’s hair did not look like that of her attacker. She explained that she and Detective

Moore had discussed the likelihood that her attacker would color his hair in an effort to

change his appearance, and so she assumed that Gillispie must have done so.

{¶ 43} Nevertheless, despite these discrepancies, the jury chose to credit – after

significant debate and reports of being deadlocked – the identification testimony of the three

victims over the testimony of Gillispie and his witnesses, and it is certainly within the
 16

province of the jury to have done so. However, in light of all of the newly discovered

evidence, considered cumulatively, regarding Cobb as an alternative perpetrator, which a jury

might see as casting further doubt on the victims’ identifications of Gillispie, we conclude that

there is a strong probability that a jury would have reasonable doubt of Gillispie’s guilt in a

new trial at which the newly discovered evidence were presented.

{¶ 44} It appears that the evidence regarding Cobb as an alternative suspect began to

be generated after retired Sergeant Fritz received an anonymous call from a man identifying

himself as an employee at Lebanon Correctional Institute, who claimed that one of his

co-workers named Cobb “did those rapes.” Fritz confirmed that Cobb worked at Lebanon

Correctional in 1988. When Fritz ran Cobb’s criminal record, he learned that Cobb had been

arrested by Fairfield, Ohio police in 1990, after he posed as a police officer and “arrested” a

woman in a public parking lot where she had exposed her breasts. The victim’s friend called

the police immediately and was able to provide Cobb’s license plate number. The police

found the victim at Cobb’s apartment before he had time to do more than handcuff her and

push her to the floor.

{¶ 45} Pointing out the differences between the Fairfield crime and the crimes for

which Gillispie has been convicted, the trial court found that the incident is not relevant to the

rapes, and that the arrest would not be admissible at a new trial. We conclude that the trial

court properly determined that this evidence would not be admissible under Evid. R. 404(B):

Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
 17

mistake or accident.

{¶ 46} From police records and people who know Cobb, Fritz learned that Cobb’s

physical description resembles the composites and the descriptions given by the rape victims

in Gillispie’s case – a tall, young, darkly tanned man with light brown or dark blonde hair with

a reddish tint, blue eyes, acne along the jaw line, and who was often seen wearing a gold chain

and medallion in the late 1980's.

{¶ 47} One of Cobb’s ex-girlfriends, Stephanie Walters, testified that Cobb has a

distinctive, deep, authoritative voice, and he has a strong fetish for oral sex, often being unable

to perform while having vaginal intercourse. The trial court illustrated that many people can

use an authoritative voice when they choose, concluding that because there was no further

description of what the victim meant by authoritative voice, and there was no direct

comparison between Gillispie’s voice and Cobb’s, “it is just plain speculative for the Court or

a jury to decide what the victim meant by the term.” We conclude that the trial court erred in

finding that this evidence has no material value. Should this evidence be offered at a new

trial, it would fall within the province of the jury to determine what weight, if any, to give to

that evidence.

{¶ 48} Fritz discovered that Cobb has family in both Columbus, Ohio, and Texas and

that he frequented the Dayton Mall area, where the rapes had occurred, during the time period

of the crimes. Both Cobb’s former father-in-law and Walters relate that Cobb said he was

molested when he was about ten or twelve years old, possibly by his father or grandfather.

Additionally, Walters overheard Cobb telling others that he worked for the CIA as a contract

killer.
 18

{¶ 49} The trial court found that Cobb’s claims of sexual abuse and working as a

contract killer are not directly related to the crime, and they do not prove or disprove any

material fact. But the evidence need not prove Cobb’s guilt – it need only create reasonable

doubt of Gillispie’s guilt. Walker, 2006-Ohio-6240, at ¶ 50. Although Cobb’s claims of

having been sexually molested, and his claims of having worked as a contract killer were

made several years after the rapes, we do not agree that these claims are of no evidentiary

value. These are not the sort of statements that might be made by almost any individual, and

they become more distinctive as a result of being combined in one person. The evidence is

material when offered to illustrate that Cobb’s claims are very similar to the claims made by

the rapist to his three victims. The time that elapsed between the statements and the crimes

go to the weight to be accorded to the evidence rather than to its admissibility.

{¶ 50} Some evidence links Cobb to the use of the name Roger. Cobb had a brother

who committed suicide. Although two of Cobb’s former girlfriends told Fritz that the

brother’s name was Roger, his name was actually LaVaughn. Cobb is known to imitate and

make fun of a drug addict in his home town who is named Roger. On one occasion, Cobb

used the name Roger when he flashed a badge and claimed to be a U.S. Marshall in order to

get money from a pizza delivery driver. The trial court found that this testimony was not

credible. The application of Crim.R. 33(A)(6) does contemplate at least some assessment of

the credibility of newly discovered evidence. Beavers, 2009-Ohio-5604, at ¶ 27, citing

Martin, 2005-Ohio-209. However, “[q]uestions of credibility are, of course, primarily for a

jury to determine.” Id. at ¶ 32, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967). This evidence is material to Gillispie’s defense, and a jury should decide what

weight, if any, to give to this evidence.
 19

{¶ 51} Defense investigator Bruce Keaton interviewed Cobb in 2003. Cobb denied

the existence of his 1990 Fairfield arrest, and he claimed to be unfamiliar with the facts of

Gillispie’s case. However, Keaton opined that Cobb “seemed fascinated by and intensely

interested in the case,” and he repeatedly asked if the investigation was going to be re-opened.

Cobb also asked Keaton how the “ladies” described their attacker, even though he had never

been told that there had been more than one victim.

{¶ 52} To the extent that the trial court suggests that Cobb might have a logical

explanation for his use of the word “ladies,” this is conjecture. We conclude that any

explanation that Cobb might offer goes to the weight or credibility of the evidence, not to its

admissibility.

{¶ 53} The trial court found that much of the newly discovered evidence is

inadmissible hearsay. For example, the court found that the evidence of Cobb’s use of the

name Roger and his claims to be from Columbus, Ohio, and Corpus Christi, Texas, are

inadmissible hearsay. Similarly, the court found that the evidence that Cobb has claimed to

have been sexually abused as a child and Walters’ testimony that she heard Cobb telling others

that he is a contract killer is hearsay.

{¶ 54} “ ‘Hearsay’ is 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. 801(C). See, also, State v. Maurer (1984), 15 Ohio St.3d 239, 262, 473 N.E.2d 768;

State v. LeMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 159. “A ‘statement’

is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the

person as an assertion.” Evid.R. 801(A). A statement offered to prove that the statement
 20

was made, and not for its truth, is not hearsay. Maurer, at 262. (Citation omitted).

{¶ 55} Gillispie does not offer the newly discovered evidence in order to prove that

Cobb’s brother was named Roger, or to prove that Cobb is from either Columbus or Corpus

Christi. Nor does Gillispie offer the evidence to prove that Cobb was sexually abused or that

he is a contract killer. In fact, Gillispie concedes that, while he has no idea if Cobb was

molested, none of the other claims are true. It is the fact that Cobb has made these claims,

which are so similar to the statements made by the rapist to his victims, that is relevant, not

the content of those claims. Therefore, we conclude that because none of this newly

discovered evidence is being offered to prove truth of the matter asserted, the evidence is not

inadmissible hearsay.

{¶ 56} Finally, we turn to the three photos of Cobb. The first photo is part of Cobb’s

1990 Fairfield arrest record. The second photo is from the Ohio Bureau of Motor Vehicles,

and was taken in the mid- to late-1990's. The third photo was taken in 1996, and is part of the

arrest record for Cobb’s robbery of a pizza delivery person. The trial court concluded that all

three of the photographs are “too remote and of no real value or relevance.” While the two

photographs from the mid- to late- 1990's might be remote enough in time from the crimes to

be of limited value, the 1990 photograph is close enough in time to be relevant to Gillispie’s

claim that Cobb bears a strong physical resemblance to the perpetrator described by the three

victims. Again, the weight, if any, to be given to this evidence is primarily for the jury to

determine.

{¶ 57} In light of the jury’s initial hesitation to convict Gillispie based solely upon the

victims’ identifications, as evidenced by the jury’s claims to be deadlocked, we conclude that

when the evidence at trial is supplemented with all of the newly discovered evidence,
 21

considered cumulatively, regarding Cobb as the possible perpetrator of these rapes, there is a

strong probability that a jury at a new trial would find reasonable doubt, and acquit Gillispie.

{¶ 58} Furthermore, the newly discovered evidence, considered cumulatively, may be

of even greater significance to a jury when considered in light of studies regarding eyewitness

identification testimony that have been conducted in the years since Gillispie’s trial, as

testified to by Dr. Steven Clark. In Gillispie IV, we stated, “[a]lthough we concluded that the

trial court did not abuse its discretion when it found that the new expert testimony regarding

eyewitness identification did not, by itself, warrant a new trial, the trial court, upon remand,

may consider the effect that such testimony might have in conjunction with any new evidence

regarding Cobb.” 2009-Ohio-3640, at ¶ 154.

{¶ 59} In conclusion, we find that the trial court acted beyond its discretion in holding

that the newly discovered evidence is hearsay and that the evidence is not material to

Gillispie’s defense. As in any criminal case, a jury would not have to find that Gillispie is

innocent of the rapes, or that Cobb is guilty of the rapes; to reach a result different from the

previous trial, the jury would only have to find the existence of reasonable doubt that Gillispie

is the rapist. We conclude that the newly discovered evidence creates a strong probability

that the jury would reach a different conclusion if the newly discovered evidence were before

it.

{¶ 60} Both of Gillispie’s assignments of error are sustained.

IV

{¶ 61} Both of Gillispie’s assignments of error having been sustained, the order of the
 22

trial court denying Gillispie’s motion for a new trial is Reversed. Gillispie’s conviction and

sentences are Vacated, and this cause is Remanded for a new trial.

.............

GRADY, P.J., concurring:

{¶ 62} I agree that whether new evidence “discloses a strong probability that it will

change the result if a new trial is granted,” State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370

(1947), syllabus, necessarily requires consideration of the evidence that was adduced at trial

and its weight.

{¶ 63} The only evidence linking Defendant to these crimes is the perpetrator’s use of

the name Roger and the testimony of the three victims identifying Defendant as the

perpetrator. The latter is, by far, the more compelling. Indeed, absent that evidence a

conviction would not have been possible.

{¶ 64} The testimony of the victims is eyewitness identification. Being victims, their

testimony is highly likely to be credited by a jury. Indeed, to reject that testimony could be

seen to compound the terrible wrongs the victims suffered, to “victimize the victim” as some

might say. Nevertheless, as experience shows, the very nature of such wrongs has the

capacity to distort a victim’s powers of observation and ability to correctly identify the

perpetrator, especially when that identification is made two years later.

{¶ 65} Recently, in State of New Jersey v. Henderson, 208 N.J. 208, 27 A.3d 872 (N.J.

2011), the Supreme Court of New Jersey wrote, at pp. 231-232:

In 2006, this Court observed that eyewitness “[m]isidentification is
 23

widely recognized as the single greatest cause of wrongful convictions in this

country.” State v. Delgado, 188 N.J. 48, 60 (2006) (citations omitted); see

also Romero, supra, 191 N.J. at 73-74 (“Some have pronounced that mistaken

identifications ‘present what is conceivably the greatest single threat to the

achievement of our ideal that no innocent man shall be punished.’ ” (citation

omitted)). That same year, the International Association of Chiefs of Police

published training guidelines in which it concluded that “[o]f all investigative

procedures employed by police in criminal cases, probably none is less reliable

than the eyewitness identification. Erroneous identifications create more

injustice and cause more suffering to innocent persons than perhaps any other

aspect of police work.” Int’l Ass’n of Chiefs of Police, Training Key No. 600,

Eyewitness Identification 5 (2006).

Substantial evidence in the record supports those statements.

Nationwide, “more than seventy-five percent of convictions overturned due to

DNA evidence involved eyewitness misidentification.” Romero, supra, 191

N.J. at 74 (citing Innocence Project report); Brandon L. Garrett, Convicting the

Innocent: Where Criminal Prosecutions Go Wrong 8-9, 279 (2011) (finding

same in 190 of first 250 DNA exoneration cases). In half of the cases,

eyewitness testimony was not corroborated by confessions, forensic science, or

informants. See the Innocence Project, Understand the Causes: Eyewitness

Misidentification, http://www.innocenceproject.org/understand/

Eyewitness-Misidentification.php (last visited August 16, 2011). Thirty-six

percent of the defendants convicted were misidentified by more than one
 24

eyewitness. Garrett, supra, at 50. As we recognized four years ago, “[i]t has

been estimated that approximately 7,500 of every 1.5 million annual

convictions for serious offenses may be based on misidentifications.”

Romero, supra, 191 N.J. at 74 (citing Brian L. Cutler & Steven D. Penrod,

Mistaken Identification: The Eyewitness, Psychology, and the Law 7 (1995)).

(Italics in original.)

{¶ 66} Henderson was specifically concerned with eyewitness identification that was

influenced, for example, by police, but also by factors like lighting, the time that had elapsed

since the crime, or whether the victim felt stress at the time of the identification. When a

defendant presents such evidence to show possible misidentification, Henderson requires that

a hearing be held to consider the effect of the factor or factors. If the identification evidence

is admitted, the court must give detailed explanations to the jurors, even in the middle of a

trial, concerning influences that could heighten the risk of misidentification.

{¶ 67} The holding in Henderson applies only to New Jersey. Further, nothing I have

said should be taken to suggest that the victims were insincere or necessarily mistaken in their

identifications of Defendant Gillispie. Nevertheless, in the context of the probability of a

different result that Petro requires courts to find, the new evidence implicating another

possible perpetrator could sufficiently weigh against the recollections of the victims that, on

the reasonable doubt standard, a different outcome, an acquittal, is reasonably probable.

.............

HALL, J., dissenting:

{¶ 68} Because I believe that the opinions of my colleagues are a substitution of their

judgment for reasonable conclusions made by the trial court, I dissent.
 25

{¶ 69} The two discrete issues in this appeal are whether the trial court abused its

discretion in ruling that certain items of “new” evidence would not be admissible and

therefore do not support a new trial, or whether the trial court abused its discretion by

determining that there was no “strong probability” of a different result if a new trial was

granted. In my view, even if I, or my colleagues, might come to a different conclusion on

some aspects of the trial court’s rulings, there was no abuse of discretion and no reason for

reversal.

{¶ 70} The defendant was convicted of several counts of rape related to two separate

incidents in August 1988. This court’s previous decision, State v. Gillispie, 2d Dist.

Montgomery Nos. 22877, 22912, 2009-Ohio-3640 (IV), and the hearing that followed,

narrowed the scope of the defendant’s new trial request to whether five areas of “new”

evidence about the defense’s alternate suspect, Kevin Cobb, warranted a new trial. Those five

areas of new evidence involve: (1) Cobb’s connection with the name “Roger,” the name by

which the rapist identified himself; (2) the distinctively authoritative nature of Cobb’s voice;

(3) Cobb’s bragging that he was a contract killer for the CIA and that he “thought he was

probably abused/molested by probably either a father or grandfather” (T. 22); (4) Cobb’s

reference to the rape victims as “ladies” when questioned by an investigator for the defendant

who said he did not tell Cobb there were multiple victims; and (5) three photographs of Cobb

over a period of years.1

{¶ 71} For any evidence to affect a new trial it must be heard by the jury. An

1
In my view, much of this information is not newly discovered evidence to begin
with. Cobb was known as an alternate suspect before Gillispie’s second trial more than
twenty years ago. Much of the “new” information could have been discovered through
 26

overriding consideration is what threshold is necessary in order to admit evidence about an

alternate suspect. Without question, the defendant is constitutionally guaranteed a meaningful

opportunity to present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct.

2142, 2146, 90 L.Ed.2d 636 (1986). But the Constitution does not prevent trial judges from

applying rules of evidence to exclude evidence if its probative value is outweighed by certain

other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.

Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006). In that

case, although the issue was not directly challenged by the parties, the Supreme Court cited

with approval 40A Am.Jur.2d, Homicide Section 286, at 136–138 (1999): “[T]he accused may

introduce any legal evidence tending to prove that another person may have committed the

crime with which the defendant is charged . . . . [Such evidence] may be excluded where it

does not sufficiently connect the other person to the crime, as, for example, where the

evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue

at the defendant's trial.” Id. at 327 (footnotes omitted).

{¶ 72}There is little discussion of the admission of alternate-suspect evidence in Ohio

case law. However, in State v. Miller, 12th Dist. Butler No. CA2005-02-048, 2006-Ohio-

2799, the appellate court stated: “Emphasizing that a nexus had to be presented in order for

this third-party evidence to be admitted, the [trial] court referred to the defense’s arguments as

guess and speculation. The court thus deemed the evidence irrelevant * * *.” Id. at ¶ 26. The

court of appeals found no abuse of discretion by the trial court in excluding the

alternate-suspect evidence.

the exercise of due diligence. Nevertheless, that issue is not presently before us.
 27

{¶ 73} Several state and federal courts have expressed this concept as requiring that

there be a nexus between alternate-suspect evidence and the offense. See Wiley v. State, 74

S.W.3d 399, 406 (Tex.Crim.App.2002) (reasoning that to be admitted, alleged

alternative-perpetrator evidence must be sufficient, on its own or in combination with other

evidence in the record, to show a nexus between the crime charged and the alternative

perpetrator); Bush v. State, 2008 Wy. 108, 193 P.3d 203 (2008) (stating that alternate-suspect

evidence must demonstrate a direct nexus between the alternate suspect and the crime charged

to be admissible and that the evidence may properly be excluded where it is speculative and

does nothing more than raise a suspicion); State v. Condon, 72 Wash.App. 638, 865 P.2d 521

(1993), review denied, 123 Wash.2d 1031, 877 P.2d 694 (1994) (concluding that evidence

implicating another suspect is admissible only when the defense can establish a clear nexus

between the third person and the crime); Cikora v. Dugger, 840 F.2d 893, 898 (11th Cir.1988)

(finding no error in denying defendant the right to show jurors an individual who lived in the

area of a burglary, and who met the description offered by witnesses, absent nexus between

the individual and the charged crime). California formerly had a rule, developed by case law,

that required “substantial evidence” to “directly connect” a third-party suspect before

alternate-suspect evidence was admissible. The California Supreme court rejected that rule in

People v. Hall, 41 Cal.3d 826, 834, 226 Cal.Rptr. 112, 718 P.2d 99 (1986), and instead

indicated that the such evidence should be evaluated under traditional Evid.R. 403 (codified as

Section 352 of the California Evidence Code) concepts. I would suggest that evaluating

whether alternate-suspect evidence has a nexus to the offense on trial is part of the trial court’s

balancing of the interests at stake in an Evid.R. 403 determination. Accordingly, it was

appropriate for the trial court to evaluate whether the defendant’s new evidence would be
 28

admissible and to include in that evaluation whether the evidence connected Kevin Cobb to

the offenses and whether it was speculative or remote.

{¶ 74} Of the five categories of new evidence, the trial court determined that the first

three would not be admissible at a retrial because there was no nexus linking Cobb to the

rapes. I agree.2 Beyond that, more detailed analysis of the new evidence demonstrates not

only that the court was correct, but that its rulings were not an abuse of discretion.

A. Use of the name “Roger”

{¶ 75} There are three alleged “Roger” connections. With regard to the first, it simply

escapes me how the testimony that Cobb may have referred to his deceased brother,

LaVaughn, as “Roger” in 1999-2002 has any legal or logical relevance to support an inference

that Cobb was the rapist who identified himself as Roger to the victims in 1988. That

connection should be disregarded and inadmissible. The second connection, testimony that

Cobb would mimic a “crazy” person named “Roger” in his hometown of Portsmouth, Ohio,

likewise has no legal or logical relevance to allow an inference Cobb was the rapist who

identified himself as Roger to the victims in 1988. This is particularly true when the witness

who was asked about the imitation never knew Cobb to go by the name Roger. (T.313). That

second connection should be disregarded and inadmissible. That leaves the only “Roger”

connection that has any potential relevance—that Cobb may have used the name “Roger” for

identifying himself when he tried to swindle a pizza delivery man at the Holiday Inn in

Fairfield, Ohio in 1996. Notably, the delivery driver did not mention that the con man used the

2
I could be persuaded that Cobb’s use of the name “Roger” when he tried to get
money from a pizza driver in 1996 is relevant, and would be admissible, if there was
some other admissible evidence of Cobb’s connection to the rapes. But there is not.
 29

name “Roger” in his initial report to the police made that night. He only remembered the

“Roger” morsel fifteen years later when interviewed by an investigator for Gillispie. Given

the above “new evidence,” I agree with the trial court that the “Roger” connections “are not

relevant in that they are remote in time, they are not directly related to the crime, and they do

not prove or disprove any material fact at issue in this case. There is no nexus between the

crime and these statements made seven and ten years later. * * * The evidence as presented

must be excluded from a new trial and therefore, provides no basis for the granting of a new

trial.” (December 29, 2010, Decision at 2-3). More importantly, even if legitimate

differences as to the trial court’s decision might exist, the trial court’s decision is reasonable

and nowhere near an abuse of discretion.

B. Authoritative voice

{¶ 76} Much argument has been made by the defense about the “new” evidence of

Cobb’s “authoritative” voice. The trial court was correct in deciding this evidence was

insufficient to be admissible or to grant a new trial. An amorphous description that Cobb has

an “authoritative” voice is not logically or legally relevant to support an inference that he was

the rapist who demanded sex from the victims. I find it curious that in a case so keenly

sensitive to the elusive qualities of eyewitness identification, one would argue that an

“authoritative” voice, as opposed to a specifically unique and distinctively certain voice, could

be used to infer identification of the alternate suspect. Nevertheless, I further agree with the

trial court that “[w]ith no further description of the term ‘authoritative’ and no comparative

basis for the two voices, it is just plain speculative for the court or a jury to decide what the

victim meant by that term.* * *. The evidence as presented must be excluded from a new trial

and therefore, provides no basis for the granting of a new trial.” (Id at 3). But even if my
 30

conclusion whether to admit this evidence would differ from the trial court’s, there is nothing

unreasonable or incorrect about the trial court’s conclusion and, therefore, no abuse of

discretion to support reversal.

C. A CIA contract killer and probably molested

{¶ 77} During the simultaneous attack on the two women on August 28,1988, the

rapist told the victims that his job was killing people for $1,000.00. At the new trial hearing

below, Stephanie Walters, Kevin Cobb’s on-and-off again girlfriend from 1999 to 2002, was

asked about Cobb’s behavior “when he would be out in public and in bars and drinking[.]” (T.

15). She heard him telling people that “he actually worked secretly for the CIA, that he was

actually a contract killer for the CIA.” (Id. at 16) First, the bravado claim of being a CIA

operative or a contract killer, or both, is not uncommon late at night in many a tavern.

Nonetheless, I agree with the trial court that “Cobb’s bragging is not relevant in that it is

remote in time, not directly related to the crime, and does not prove or disprove any material

fact at issue in this case. There is no nexus between the crime and Cobb’s statement ten years

later. * * * The evidence as presented must be excluded from a new trial and therefore,

provides no basis for the granting of a new trial.” (Decision at 4). But even if my conclusion

whether to admit this evidence would differ from the trial court’s, there is nothing

unreasonable or incorrect about the trial court’s conclusion and, therefore, no abuse of

discretion to support reversal.

{¶ 78} A connection about the testimony of Cobb and the rapist having been molested

as a child is likewise fragile. With regard to Cobb, his former girlfriend said “He did not

remember exactly in our conversations. It was either a father or a grandfather. I don’t think he

remembered for certain.” * * *”Probably around the age of ten to 12, somewhere in there” (T.
 31

22). Contrast that to the testimony of the victims of the simultaneous assaults on August 20,

1998. The rapist said “* * *that he was raped when he was twelve by his grandfather and he

had to live with that every day.” (Second Trial Transcript Vol. II, pg. 371), and “* * *he said

his grandfather raped him or molested him, something like that, when he was 12 years old* *

* *.” (Id at 449) The third victim recalled the rapist said something about being molested but

she could not recall by whom (T. 510) and did not recall specifics of the statement (T.

525-26). The trial court’s Decision overruling the motion for a new trial does not specifically

address the childhood molestation evidence. But the court did indicate that it did review all of

the exhibits and testimony and determined “* * * none of it to be connected to the crimes of

August, 1988 and therefore not relevant or admissible in a new trial.” Decision at 7. I agree.

Moreover the amorphous testimony from Cobb’s girlfriend is not sufficiently similar to the

“raped when he was twelve by his grandfather” to create a nexus between Cobb and the

offenses. In any event, I see no abuse of discretion.

D. “How did the ladies describe him?” (T. 179)

{¶ 79} I agree with the trial court that Cobb’s above-quoted question to the defense

investigator and defendant’s counsel is pure hearsay. Cobb’s plural “ladies” is introduced for

the truth because if that word is not truly accurate, then there can be no inference that he knew

more than he was telling. But just because it’s hearsay if elicited from the investigator does

not mean it would be entirely excluded. The defense could call Cobb to the stand and elicit the

testimony directly from him. Of course, Cobb has denied involvement in the rapes so the

defense would likely not risk calling him and must argue that the evidence should come in

without Cobb as a witness. But if Cobb does testify and denies he made the statement, or

pluralized the word “lady,” the statement likely would not be admissible by extrinsic evidence
 32

as a prior inconsistent statement and it would not be admissible as substantive evidence.

Conversely, if Cobb admits he used the word “ladies,” perhaps he could readily explain that

his questioner asked him about the “crimes,” plural, as the investigator testified on direct

examination at the hearing, (T. 170 ) before a clarifying explanation was later given. Cobb

might otherwise explain away the term. After all, this interview took place a couple years

before the 2010 hearing, which means the interview was twenty years after the 1988 offenses.3

Cobb may have heard about the case even though he denied that fact. This entire encounter

would devolve into a mini-trial about what was said, who said it, whether Cobb was unduly

inquisitive, or what was the accuracy of the investigator’s interpretation, given his effort to

seek proof Cobb was the alternate suspect. This anticipated collateral diversion alone is reason

to rule that the entire encounter should be excluded. I agree with the trial court that “this

statement stands alone with little probative value that is substantially outweighed by unfair

prejudice to the State and misleading the jury. The evidence as presented must be excluded

from a new trial and therefore, provides no basis for the granting of a new trial.” (Decision at

5). Even if my conclusion whether to admit this evidence would differ from the trial court’s,

there is nothing unreasonable or incorrect about the trial court’s conclusion and, therefore, no

abuse of discretion to support reversal.

E. Three photographs, minus two

{¶ 80} Of the three photos of Cobb the defense offers as new evidence, the lead

opinion, correctly in my view, concludes that two of them are too remote in time to be

3
It is almost beyond belief that this was the first and only time that anyone on
behalf of the defendant ever interviewed Cobb, who had been their alternate suspect
since at least before the second trial in June 1991.
 33

admissible. Only the 1990 Fairfield arrest photo would be admissible.4 I agree that the 1990

photo of Cobb should be admissible, if there was some other admissible evidence of Cobb’s

connection to the rapes. But there is not. Therefore, I would determine that the trial court did

not abuse its discretion in excluding the photo.

F. No Strong probability of a different result

{¶ 81} There is no dispute that to obtain a new trial a defendant must present evidence

to demonstrate a “strong probability” that it would “change the result” if a new trial was

granted. State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus. My interpretation

of the admissibility of the new evidence would, at best, only allow two pieces of evidence to

be considered: that Cobb may have used the name Roger in 1996 and a photo of him from

1990 that bears a resemblance to the rapist. This evidence does not support finding a strong

possibility of a different result. More importantly, it does not demonstrate that the trial court

abused its discretion by denying a new trial. Thus, the decision of the trial court should be

affirmed.

.............

Copies mailed to:

Mathias H. Heck
Carley J. Ingram
Jim Petro
Mark Godsey
Hon. Steven K. Dankof

4
The lead opinion also, in my view, correctly concludes that the circumstances of
the incident surrounding the 1990 Fairfield arrest are not admissible.