State v. Wilson

[Cite as State v. Wilson, 2022-Ohio-2769.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 110763
v. :

CLARENCE WILSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 11, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-635210-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Gregory Mussman, Jeffrey Maver, and
Samantha Sohl, Assistant Prosecuting Attorneys, for
appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and
Erika Cunliffe, Assistant Public Defender, for appellant.

EILEEN T. GALLAGHER, J.:

Defendant-appellant, Clarence Wilson (“Wilson”), appeals his

convictions and claims the following errors:
 1. Clarence Wilson’s convictions for murder, attempted murder and
multiple counts of felonious assault are not supported by the weight of
the evidence presented and thereby are contrary to his right of due
process as protected by the 14th Amendment to the U.S. Constitution
and Article I, Section 10 of the Ohio Constitution.

2. The trial court should have granted Wilson a hearing on his motion
for new trial in light of information that one of the jurors may have lied
about his past interactions with Wilson where such a hearing may
[have] demonstrated this juror could not have fairly decided this case.

3. The trial court should have granted Wilson a hearing based on the
other grounds raised in his new trial motion.

4. The trial court should have granted Wilson’s request for an in-
camera review of grand jury testimony where the record demonstrated
it was likely that false information from a witness led to Wilson’s
indictment.

We affirm the trial court’s judgment.

I. Facts and Procedural History

On October 10, 2018, at approximately 10:40 p.m., someone driving a

red Dodge Dart fired several gunshots into a crowded parking lot of a convenience

store located at 18121 Euclid Avenue in Cleveland, Ohio. One of the gunshots struck

and killed a woman named Tiarra East (“East”), who was congregating in the

parking lot with members of her extended family following the death of her

grandmother. A second gunshot struck April Glenn (“Glenn”) in the arm, causing

serious injuries requiring multiple surgeries. Surveillance cameras at the

convenience store captured the shooting on film, but the driver’s face could not be

seen. Wilson was subsequently identified by witnesses as the driver of the red Dodge

Dart, and one witness, Britney Brown (“Brown”), identified him as the shooter.
 Wilson was subsequently charged with one count of aggravated

murder, one count of murder, one count of attempted murder, eight counts of

felonious assault, two counts of improperly handling firearms in a motor vehicle,

three counts of discharging a firearm on or near a prohibited premises, one count of

having weapons while under disability, and one count of vandalism. The case

proceeded to a jury trial on all counts except for the having weapons while under

disability charge, which was tried to the bench.

Glenn testified that on October 10, 2018, her family was assembled to

grieve the passing of her grandmother. (Tr. 365.) Her grandmother’s house was

located near the convenience store, and the family was congregating in the store

parking lot when someone driving a red Dodge Dart suddenly appeared and fired

several gunshots across the parking lot. (Tr. 341, 366.) Surveillance video of the

shooting, which was admitted into evidence, shows the red Dodge Dart in pursuit of

a white Chevy Malibu. The white Chevy Malibu drove through the parking lot in an

apparent attempt to escape the shooting.

After the red Dodge Dart had left the scene, members of the Glenn

family discovered that East and Glenn had both been shot. The father of East’s

children drove her to the hospital where she was pronounced dead. Glenn was

transported to the hospital by EMS. None of the witnesses in the parking lot claimed

to have seen the individuals who participated in the shooting.

Brown testified that she entered the red Dodge Dart with Wilson at the

Cleveland Motel shortly before the shooting. (Tr. 241-242.) The Cleveland Motel is
located at 17027 Euclid Avenue in Cleveland, Ohio, not far from the convenience

store. (Tr. 536.) Brown was living and working as a prostitute at the Cleveland

Motel in October 2018, and Wilson was her “dope man,” from whom she purchased

crack cocaine. (Tr. 241.)

According to Brown, Wilson drove the red Dodge Dart while she

smoked crack cocaine in the passenger’s seat. (Tr. 242-243.) Shortly after she

started smoking, Wilson fired several gunshots into the crowded parking lot at the

convenience store. Brown looked at him and said “I hope you didn’t kill nobody

standing there.” (Tr. 243.) He replied, “You cool? You cool?” Thereafter, they

remained silent in the car until they returned to the Cleveland Motel. (Tr. 243.)

Brown explained that Wilson did not intend to shoot either East or

Glenn. He was trying to shoot Jaquan Jones (“Jones”), who was driving the white

Chevy Malibu depicted in the surveillance video as the car followed by the red Dodge

Dart. (Tr. 242-243.) Jones testified that he was the driver of the white Chevy Malibu

and that he drove through the convenience store parking lot to escape the gunshots

being fired at him from the red Dodge Dart behind him. (Tr. 334.)

Brown returned to her room at the Cleveland Motel after the shooting

and “played like nothin’ happened.” (Tr. 245.) Later that night, Wilson called her

on the phone. (Tr. 250.) Unbeknownst to Brown, Wilson recorded the conversation,

which was retrieved by police during the investigation and admitted into the

evidence as state’s exhibit No. 700. During the recording, which lasts approximately

one minute, Brown tells Wilson, “My body is numb.” She also tells him that she is
“depressed.” (State’s exhibit No. 700.) In the short recording, Wilson is heard twice

asking, “Honestly, I had nothin’ to do with that, right?” (Tr. 251, state’s exhibit No.

700.)

Brown admitted that she initially told police that she was not in the car

with Wilson when he committed the shooting, claiming instead that he confessed to

her after the fact. She asserted that although her initial report to police was not

accurate, she was telling the truth at trial. She also stated that Wilson’s mother

offered to pay her if she would not testify, but she rejected the money. (Tr. 248.)

She explained, “But me and him know the truth. So that’s why I’m testifying.” (Tr.

247.)

Brown testified that DeAngelo Ricks (“Ricks”) was her best friend.

Ricks testified that the Cleveland Motel is a dirty place where people go for

prostitutes and drugs. She explained that people often trade the use of a car for “a

girl” or “for drugs.” (Tr. 485.) She stated, “We give a guy or a girl some crack, they

give us a car.” (Tr. 485.) The car exchanged in the transaction is referred to as a

“crack rental.” (Tr. 485.) Ricks obtained a red Dodge Dart as a crack rental on the

night of the shooting, but she did not drive it; she left it with Wilson. (Tr. 483, 485-

486.) According to Ricks, a white man associated with one of her clients owned the

Dodge Dart. (Tr. 488.)

In October 2018, Diane Washington (“Diane”) frequented the

Cleveland Motel and was addicted to crack cocaine. (Tr. 406.) She was getting high

with Brown on the night of the shooting when Wilson entered the room with “some
white guy.” (Tr. 407.) Brown told Washington to “chill” with the white guy until she

and Wilson returned. (Tr. 407.) Washington testified that she observed Brown and

Wilson leave in the red Dodge Dart. (Tr. 408.) Washington further stated that when

they came back, neither of them said anything and Brown was “acting weird.” (Tr.

412.)

Wilson was interviewed by Detective Kathleen Carlin (“Det. Carlin”)

following his arrest. The interview was recorded, and the videorecording was

entered into evidence. During the interview, Wilson told Det. Carlin that he had not

been near the Cleveland Motel since the summer of 2018, and he denied being there

on the night of the shooting. Wilson also denied knowing Diane Washington.

(Tr. 407.) Finally, Wilson told Det. Carlin that he could not have committed the

shooting because he was at his mother’s home that night watching a show called

“Empire” and doing his laundry. Yet cell phone records established that Wilson was

in the vicinity of the Cleveland Motel and the convenience store where the shooting

transpired between 10:31 and 10:55 p.m. (Tr. 641.) The shooting itself occurred

between 10:40 and 10:42 p.m. (Tr. 633.) Thus, Wilson’s cell phone records placed

him in the vicinity of the scene of the crime.

The jury found Wilson guilty of all counts except for Counts 1 and 3,

which alleged aggravated murder and attempted murder, respectively. The court

sentenced Wilson to 36 years to life in prison. He now appeals his convictions.
 II. Law and Analysis

A. Manifest Weight of the Evidence

In the first assignment of error, Wilson argues his convictions are

against the manifest weight of the evidence.

A manifest weight challenge questions whether the state met its

burden of persuasion at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 12. A reviewing court “‘weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in

resolving conflicts in the evidence, the jury clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

“A conviction should be reversed as against the manifest weight of the evidence only

in the most ‘exceptional case in which the evidence weighs heavily against the

conviction.’” State v. Burks, 8th Dist. Cuyahoga No. 106639, 2018-Ohio-4777, ¶ 47,

quoting Thompkins at 387.

Wilson contends that Brown was the only witness who identified him

as the shooter and that she lacked credibility because she, herself, was a suspect in

the murder and had a motive to implicate him in order to exonerate herself. Wilson

also asserts that she lied to police when she denied being in the car with Wilson at

the time of the shooting. He asserts that his alleged motive, i.e., that he had a “beef”
with Jones, was not corroborated by other evidence and that the police had “tunnel

vision” when they were investigating the shooting and failed to follow other leads.

Brown was not an exemplary witness. She is a former prostitute and

crack addict, and she admittedly lied to police when they first questioned her about

the shooting. By lying about her presence in the Dodge Dart at the time of the

shooting, Brown attempted to distance herself from the murder. But just because

Brown was a prostitute, who sought to disassociate herself from the event, does not

mean that she committed the murder.

As previously stated, the surveillance video shows that the person who

fired the shots that killed East and injured Glenn was driving a red Dodge Dart and

was following a white Chevy Malibu. Brown testified that Wilson fired the shots

while he was driving the red car. Although Brown was not an ideal witness, her

testimony that Wilson was the driver of the red Dodge Dart was corroborated by two

other witnesses: Ricks and Washington. Ricks testified that the red Dodge Dart was

owned by an unknown white man, who associated with one of her clients.

Washington testified that she waited with an unknown white man while Wilson and

Brown left in the red Dodge Dart. The testimonies of Ricks and Washington were

consistent with each other and corroborated Brown’s testimony that Wilson was

driving the red Dodge Dart at the time of the shooting.

Brown testified that Wilson did not intend to shoot either East or

April; Jones was his target. Jones confirmed at trial that he was driving the white

Chevy Malibu and that he drove through the convenience store parking lot to escape
the gunshots being fired at him from the red Dodge Dart. Although Jones denied

having “a beef” with Wilson, Jones’s testimony nevertheless corroborates Brown’s

testimony that Jones was Wilson’s intended target.

Wilson denied he was the shooter during his recorded interview with

Det. Carlin. However, many of the statements he made during the interview were

contradicted by other evidence. For example, during the recorded interview Wilson

initially denies knowing Jones. However, later in the interview, he acknowledges

that he not only knows Jones, but he corrects Det. Carlin’s pronunciation of his

name. And, as previously stated, Jones testified that he and Wilson knew each other.

(Tr. 331.) Therefore, Wilson’s claim that he did not know Jones is belied by the

evidence. Moreover, his attempt to disassociate himself from Jones, who was

driving the white Malibu at the scene of the shooting, demonstrates an attempt to

distance himself from the shooting.

Wilson also denied knowing Washington, who testified that she saw

Wilson and Brown drive away in the red Dodge Dart shortly before the shooting and

return in the same car directly after the shooting. (Tr. 406-407.) Wilson’s denial

that he knows Washington is another attempt to distance himself from the red

Dodge Dart, which was clearly involved in the shooting.

Moreover, Wilson denied being at the Cleveland Motel on the night of

the shooting. During the recorded interview, Wilson tells Det. Carlin that he has not

been to the Cleveland Motel since the summer of 2018 and that he was at his

mother’s house doing laundry at the time of the shooting. Yet, Wilson’s cell phone
records demonstrate that he was in the vicinity of the Cleveland Motel and the

convenience store where the shooting took place between 10:31 and 10:55 p.m. (Tr.

641.) The shooting itself occurred between 10:40 and 10:42 p.m. (Tr. 633.)

Therefore, despite Wilson’s statement to the contrary, objective evidence places him

at the scene of the crime.

Further, Wilson recorded a telephone conversation between himself

and Brown after the shooting wherein he twice asserts that he “had nothin’ to do

with that, right?” (Tr. 251, state’s exhibit No. 700.) The recorded conversation,

which was played for the jury and was admitted into evidence, shows consciousness

of guilt. If Wilson were truly not involved with the shooting, he would have had no

reason to record a phone conversation with Brown proclaiming his innocence.

Therefore, although Wilson denies he was present at the shooting, the greater weight

of the evidence established that he was there and that he was the shooter. And even

though Brown was not an ideal witness, the testimony from Ricks and Washington

as well as the cell phone records placing Wilson in the vicinity of the crime scene

corroborate Brown’s testimony that Wilson fired the gunshots into the convenience

store parking lot that killed East and injured Glenn. We, therefore, cannot say that

this is a case where the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.

The first assignment of error is overruled.
 B. Motion for New Trial

In the second assignment of error, Wilson argues the trial court erred

in denying his motion for new trial.1 Wilson contends a new trial was warranted due

to the misconduct of Juror No. 8. In the third assignment of error, he argues the

trial court further erred in denying the motion for new trial, which he asserts was

also warranted due to “unfair surprise” caused by the testimonies of Brown and

Ricks as well as the undisclosed promises of immunity for Brown. We discuss these

assigned errors together because they are both governed by Crim.R. 33(A).

Crim.R. 33 provides, in relevant part:

1The parties submitted post-hearing briefs to address the question of whether
Wilson’s motion for new trial was timely filed. After reviewing the parties’ briefs and the
applicable law, we find that the motion was timely filed. Crim.R. 33(B) provides that
motions for new trial “shall be filed within fourteen days after the verdict was rendered[.]”
The rule does not define when the verdict is “rendered.” In State v. Vulgamore, 4th Dist.
Ross No. 19CA3686, 2021-Ohio-3147, ¶ 22, the Fourth District applied Black’s Law
Dictionary’s definition of the term “render judgment” and concluded that a verdict is
rendered for purposes of Crim.R. 33(B) when the court officially announces the verdict is
open court and on the record.
We are not bound by the Fourth District’s precedent, and no other court has
adopted this approach. Indeed, this court has historically calculated the time for filing
motions from new trial from the date the verdict is journalized. See, e.g., State v. Powell,
8th Dist. Cuyahoga No. 109897, 2021-Ohio-2440, ¶ 16; Fairview Park v. Ricotta, 8th
Dist. Cuyahoga No. 66850, 1995 Ohio App. LEXIS 4066 (Sept. 21, 1995). See also State
v. Johnston, 39 Ohio St.3d 48, 58, 529 N.E.2d 898 (1988)(holding that motion for new
trial based on newly discovered evidence must be filed within 120 days “after
journalization of the verdict.”).
We believe that calculating the days from the date of journalization promotes
consistency and predictability. It also follows the general rule that a court speaks only
through its journal and not by oral pronouncement. See State v. Bryant, Slip Opinion
No. 2022-Ohio-1878, ¶ 23.
Wilson filed his motion for new trial 15 days after the verdict was pronounced in
open court but only 7 days after the verdict was journalized. We, therefore, conclude that
his motion for new trial was timely filed.
 (A) Grounds. A new trial may be granted on motion of the defendant
for any of the following causes affecting materially his substantial
rights:

(1) Irregularity in the proceedings, or in any order or
ruling of the court, or abuse of discretion by the court,
because of which the defendant was prevented from
having a fair trial;

(2) Misconduct of the jury, prosecuting attorney, or the
witnesses for the state;

(3) Accident or surprise which ordinary prudence could
not have guarded against; * * * .

* * *

The decision whether to grant or deny a motion for a new trial is

within the sound discretion of the trial court and will not be overturned absent an

abuse of discretion. State v. Gilbert, 8th Dist. Cuyahoga No. 106358, 2018-Ohio-

3789, ¶ 25, citing State v. Schiebel, 55 Ohio St.3d 71, 76, 564 N.E.2d 54 (1990). “A

court abuses its discretion when a legal rule entrusts a decision to a judge’s

discretion and the judge’s exercise of that discretion is outside of the legally

permissible range of choices.” State v. Hackett, 164 Ohio St.3d 74, 2020-Ohio-

6699, 172 N.E.3d 75, ¶ 19. An abuse of discretion may be found where a trial court

“applies the wrong legal standard, misapplies the correct legal standard, or relies on

clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d 401,

2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.) When applying the abuse of

discretion standard, a reviewing court may not substitute its judgment for that of

the trial court. Vannucci v. Schneider, 2018-Ohio-1294, 110 N.E.3d 716, ¶ 22 (8th

Dist.).
 Wilson first argues his substantial rights were prejudiced by juror

misconduct. In determining whether a defendant’s substantial rights have been

prejudiced due to misconduct, courts conduct a two-step inquiry. State v. White,

8th Dist. Cuyahoga No. 110452, 2022-Ohio-2130, ¶ 65. First, the court will

determine whether juror misconduct occurred. Id. If juror misconduct is found, the

court must then determine whether the misconduct materially affected the

defendant’s substantial rights. Id.

In determining whether juror misconduct has occurred, we start with

the premise that juror misconduct will not be presumed. Professional Solutions Ins.

Co. v. Novak, L.L.P., 8th Dist. Cuyahoga No. 108839, 2020-Ohio-4829, ¶ 69. To the

contrary, because the law presumes proper conduct on the part of the jury, juror

misconduct must be affirmatively demonstrated. Id.; see also State v. Boykin, 2d

Dist. Montgomery No. 24479, 2012-Ohio-1090.

In Boykin, the Second District upheld a trial court’s denial of a

defendant’s motion for new trial under facts similar to those presented here. The

defendant’s brother informed the court by way of an affidavit in support of a motion

for new trial that one of the jurors had prior interactions with the defendant and the

defendant’s family. The brother further averred that the juror also may have had

contact with the victim’s family. Id. at ¶ 5.

The defendant’s brother was present during the trial but did not share

the information about the juror’s contacts until after the jury had rendered its

verdict. Id. at ¶ 18. The defendant filed a motion for new trial after the verdict,
claiming his substantial rights were violated. In affirming the denial of the motion

for new trial the Second District explained that “had the matter been brought to the

trial court’s attention during the trial, the parties could have conducted an

examination into the matter.” Id. at ¶ 18. The court further noted that, during voir

dire, both the trial court and the prosecutor inquired as to whether any of the

prospective jurors knew either the defendant or the victim, and no juror responded

affirmatively to either question. Moreover, the court found that the brother’s

statement that the juror “probably” knew the defendant and that there was a “strong

possibility” that the juror knew him and his family was not sufficient to establish

affirmative evidence of misconduct. Id. at ¶ 19.

Wilson contends his substantial rights were prejudiced because Juror

No. 8 was the assistant principal of the high school he attended nearly ten years

earlier and that, as assistant principal, Juror No. 8 disciplined him and caused him

to be expelled from school. He now claims that Juror No. 8 must have remembered

him and been prejudiced against him. However, as in Boykin, the trial court asked

the jurors during voir dire whether any of the jurors knew any of the parties involved

in the case, including Wilson. (Tr. 51.) No juror responded affirmatively to the

question. (Tr. 51.) The court also asked the jurors whether anyone had any personal

interest in the outcome of the case or whether anyone had any prejudice, explaining

that such disclosures ensure that the defendant receives a fair trial. (Tr.59, 93.)

Again, no jurors responded affirmatively to the questions.
 As in Boykin, we find no affirmative evidence of any misconduct on

the part of Juror No. 8 in failing to respond affirmatively to these questions. As an

assistant principal, Juror No. 8 must have interacted with thousands of students

over the years and it is not unreasonable to conclude that he did not remember

Wilson, with whom he had not interacted for nearly a decade. We do not presume

juror misconduct; we presume proper conduct on the part of the jury. Professional

Solutions Ins. Co., 8th Dist. Cuyahoga No. 108839, 2020-Ohio-4829, at ¶ 69. In the

absence of affirmative evidence of juror misconduct, we find that the trial court

properly overruled Wilson’s motion for new trial based on alleged juror misconduct.

Wilson nevertheless contends the court should have granted a new

trial based on the “unfair surprise” caused by testimonies of Brown and Ricks as well

as the undisclosed promises of immunity for Brown. First, he contends he heard

Brown state, for the first time at trial, that she was a passenger in the car when

Wilson fired his weapon into the convenience store parking lot. He asserts that in

the videorecording of Brown’s police interview, she told police that Wilson confessed

to her about having committed the murder because she was not with him when it

occurred. At trial, Brown testified that she was in the car with Wilson when he fired

his weapon into the convenience store parking lot. He now claims he was unfairly

surprised by the change in her testimony. However, Wilson did not object to the

alleged unfair surprise at trial even though the prosecutor indicated in opening

statements that Brown was going testify that she was in the car with Wilson when

he fired his weapon in the convenience store parking lot. (Tr. 203-204.) In fact, the
prosecutor explained during opening statements that Brown changed her story and

that although she originally lied to police about not being present, she later admitted

that she was present. (Tr. 204.) Yet, defense counsel did not object on the basis of

unfair surprise.

In the state’s brief in opposition to the motion for new trial, the state

explains that although Brown’s trial testimony was inconsistent with her initial

police interview, her new version of the events was communicated to defense

counsel. The fact that defense counsel did not object to the alleged surprise at trial

suggests the state’s claim that it disclosed Brown’s revised statement to the defense

is true. But regardless of whether the revised statement was disclosed, a witness’s

prior inconsistent statement is not a basis for a new trial. This is not a case where

the witness, herself, was not disclosed prior to trial. Allowing an undisclosed witness

to testify at trial may constitute unfair surprise, but that is not what happened here.

Witnesses often provide testimony that is inconsistent with their prior statements.

Prior inconsistent statements are routinely used for impeachment purposes to

attack the witness’s credibility. To grant a new trial every time a witness provided

testimony inconsistent with his or her prior statement would result in countless new

trials.

Wilson also claims he was unfairly surprised by Ricks’s testimony.

According to Wilson, Ricks told police that she and Brown rented the red Dodge

Dart from an unidentified white man on the day of the incident. Wilson claims that

before trial, Ricks also never placed him in the car on the night of the shooting. Yet,
at trial, Ricks testified that she observed Wilson and Brown drive away in the red

Dodge Dart shortly before the shooting. However, Wilson did not object to this

alleged surprise at trial, and the state maintains the substance of Ricks’s trial

testimony was communicated to defense counsel in advance of the trial. Moreover,

the state identified Ricks as a witness before trial. Witness testimony does not

always go as expected. But, as previously stated, minor differences between prior

statements and trial testimony is not a basis for a new trial.

In State v. Fitzgerald, 8th Dist. Cuyahoga No. 94916, 2011-Ohio-719,

this court affirmed the denial of a motion for new trial based on the alleged surprise

in the testimony of two witnesses. In affirming the denial of the motion for new trial,

this court noted that the defendant did not object to the alleged surprise testimony

and, in any event, any credibility determinations about the witnesses’ testimony

were for the jury to decide. Id. at ¶ 26. Here, the defense did not object to the alleged

surprise testimony at trial. And, the jury heard evidence that Brown had been a

suspect in the shooting before she implicated Wilson. They were, therefore, aware

that she had a motive to blame him in order to exonerate herself. Moreover, the

defense could use any prior inconsistent statements for impeachment purposes, but

prior inconsistent statements are generally not grounds for a new trial.

Wilson further asserts he was surprised to learn at trial that Brown

received immunity in exchange for her testimony. However, there is no evidence

that Brown was offered immunity in exchange for her testimony. Moreover, defense

counsel questioned Brown about receiving immunity on cross-examination, and she
denied receiving immunity. (Tr. 281.) Therefore, there is no basis on which to

conclude that Wilson was unfairly surprised or prejudiced by the supposed

immunity offered to Brown. We, therefore, cannot say that the trial court abused its

discretion in denying Wilson’s motion for new trial.

The second and third assignments of error are overruled.

C. Grand Jury Proceedings

In the fourth assignment of error, Wilson argues the trial court erred

in denying his request for an in camera review of the grand jury proceedings. He

contends that Brown’s inconsistent statements to police regarding her absence or

presence in the red Dodge Dart at the time of the shooting and her prior statement

regarding the presence of an individual identified as “T” at the time of the shooting

suggests that Wilson was probably indicted based on false and/or fabricated

information. Wilson asked the trial court to review the transcript of the grand jury

proceedings to determine if the variance in Brown’s testimony violated his rights to

due process and a fair trial.

Grand jury proceedings are secret, and a defendant has no right to an

inspection of grand jury transcripts unless “the ends of justice require it and there is

a showing by the defense that a particularized need for the disclosure exists which

outweighs the need for secrecy.” State v. Greer, 66 Ohio St.2d 139, 420 N.E.2d 982

(1982), paragraph two of the syllabus. A “particularized need” is established “when

the circumstances reveal a probability that the failure to provide the grand jury

testimony will deny the defendant a fair trial.” State v. Sellards, 17 Ohio St.3d 169,
173, 478 N.E.2d 781 (1985); Greer at paragraph three of the syllabus. Determining

whether a particularized need exists is a matter within the trial court’s discretion.

Greer at paragraph one of the syllabus.

Wilson failed to demonstrate a particularized need for an in-camera

review of Brown’s grand jury testimony. Although Brown’s initial statement to

police was not consistent with her trial testimony, there is no evidence that her trial

testimony was inconsistent with her grand jury testimony. “[T]he mere possibility

of inconsistent testimony does not rise to the level of a particularized need that

would warrant the disclosure of grand-jury testimony.” State v. Ford, 158 Ohio

St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 396, citing State v Lang, 129 Ohio

St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 44 (holding that a speculative claim

that the grand jury testimony might have contained material evidence does not

establish a particularized need).

Although Brown’s trial testimony differed from her original statement

to police, she revised her statement to police before trial. Thus, whether Brown

provided false testimony before the grand jury is purely speculative and does not

warrant an in-camera inspection of her grand jury testimony. Therefore, the trial

court acted within its discretion in denying her request for an in-camera review of

the grand jury proceedings.

The fourth assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.
 The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

LISA B. FORBES, P.J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR