State v. Irwin (184 Ohio App. 3d 764, 2009)

Donofrio, Judge.

{¶ 1} Defendant-appellant, Andrew Irwin, appeals from a Columbiana County Common Pleas Court judgment convicting him of murder following a jury trial and from a judgment overruling his motion for a new trial.

{¶ 2} Appellant suffers from drug addiction. His heroin dealer was 21-year-old Emily Foreman. At 3:57 p.m. on August 23, 2006, appellant placed a phone call to 9-1-1 requesting an ambulance to the home where Foreman lived with her mother. At 4:10 p.m., appellant called the East Liverpool Police Department, once again requesting an ambulance. He told the dispatcher that his name was “Andy” and that there had been a stabbing. East Liverpool Police Officers Kelsey Hedrick and Fred Flati arrived on the scene, as did the paramedics. As the officers approached the house, appellant exited, shirtless and covered in blood. Appellant told the officers, “She’s in there,” and pointed inside the house. Appellant then sat on the front steps of the house.

{¶ 3} The police and paramedics located Foreman lying on the floor of a ransacked, blood-covered bedroom. She had several stab wounds and was bleeding. Foreman was able to tell the officers her name and that she could not breathe, but they did not ask her who had stabbed her. The paramedics transported Foreman to East Liverpool City Hospital, where she died as a result of stab wounds that punctured her lungs.

{¶ 4} According to paramedic Jason Lively, when he asked appellant what happened, appellant said that “she” attacked him, so he stabbed her, and the knife was inside the house. Appellant denied ever making this statement.

{¶ 5} Officer Hedrick questioned appellant in the living room of the house. According to Officer Hedrick, appellant told him that his name was “Andy” and said, “I came here to buy dope and she tried to stab me.” Appellant denied making this statement also.

{¶ 6} Upon discovering that there was an outstanding warrant for appellant’s arrest, police took him into custody on the warrant. Before he was handcuffed, appellant took a small, clean paring knife out of his pocket and tossed it on the couch. The large serrated steak knife used to stab Foreman was still in the bedroom, covered with blood.

{¶ 7} Officer Hedrick, along with Chief Michael McVay, transported appellant to the police station. In the cruiser, appellant stated that he had treated his mother badly and mentioned being in rehab for drug use. He then stated that he hoped God and his child could forgive him.

{¶ 8} Upon searching Foreman’s house, police observed that the bedroom where she was stabbed was in disarray. Her purse was dumped out. The bed was knocked out of alignment. A serrated knife was on the bed. Bloodstains were in numerous places. Additionally, in the kitchen, police found a hypodermic needle, a cell phone with bloodstains, and a wax-like material common in the storage of heroin.

{¶ 9} Fingerprint and DNA evidence indicated that appellant had been inside Foreman’s house.

{¶ 10} A Columbiana County grand jury indicted appellant on one count of murder, a first-degree felony, in violation of R.C. 2903.02(A).

{¶ 11} The matter proceeded to a jury trial. At the close of the state’s case, appellant asked to present newly discovered evidence that a man had telephoned his family the previous night and told them that someone else had confessed to the murder. The trial court denied this request and informed appellant that if the jury found him guilty, he could file a motion for a new trial. Additionally, during the trial, after repeated admonitions, the court twice found appellant’s counsel in contempt for repeatedly refusing to follow its orders.

{¶ 12} The jury found appellant guilty as charged. The trial court then sentenced appellant to 15 years to life in prison.

{¶ 13} Appellant subsequently filed a motion for a new trial. The trial court held a two-day hearing on the motion, during which appellant presented numerous witnesses. One witness, Jason Beaver, testified that a man named Greg Todd confessed to him that he had been the one who stabbed Foreman and that he could not believe that appellant was taking the blame for him. Todd, however, was also called as a witness. Todd denied this confession and testified that he had nothing to do with Foreman’s stabbing. Another witness, Julie Conyer, testified that her ex-boyfriend Tommy Shields told her that Todd had confessed to him while the two were incarcerated together. Shields, however, denied ever making such a statement.

{¶ 14} The trial court subsequently denied the new-trial motion. It stated that it found Todd’s testimony to be the most reliable. It noted that Todd’s testimony was extensive and convincing. The court further noted that the parties submitted the results of polygraph tests that both Todd and Beaver had taken. The results indicated that Todd was being truthful in denying responsibility for the murder, while Beaver was not being truthful in stating that Todd had confessed to the murder.

{¶ 15} Appellant filed a timely notice of appeal from both his judgment entry of conviction and from the denial of his new-trial motion.

{¶ 16} Appellant raises 12 assignments of error. We will address them out of order for ease of discussion.

{¶ 17} Appellant’s seventh assignment of error states:

{¶ 18} “Appellant’s right to due process and impartial jury under the Fifth, Sixth, and Fourteenth Amendments were violated when the trial court unreasonably limited his attorney’s opportunity to question potential jurors during voir dire and refused to dismiss biased jurors for cause.”

{¶ 19} Here, appellant asserts that the trial court rushed his counsel through voir dire and did not give him adequate time to connect with the jury and learn their views on relevant issues. He argues that the court’s constant interruptions and corrections, coupled with its 90-second inquiry-limit per juror, unreasonably limited voir dire and prejudiced his right to a fair trial.

{¶ 20} During voir dire, the trial court interrupted appellant’s counsel on numerous occasions to move the process along. Appellant’s counsel was not very articulate and he seemed, at times, to confuse the potential jurors with his questions. For instance, appellant’s counsel spent some time trying to ask juror Kimmel whether she could find appellant not guilty if she had reasonable doubt. Kimmel repeatedly told him that she could not answer his questions because she was not familiar with the situation. The court then stepped in and clarified what counsel was attempting to ask Kimmel, that being, if the state failed to prove its case beyond a reasonable doubt, would she have any problem finding appellant not guilty. Kimmel was then able to answer the question.

{¶21} Additionally, appellant’s counsel spent a considerable amount of time making speeches to the jury. For instance, counsel lectured the jurors about military service, police stations, and following orders. The court eventually interrupted counsel and instructed him to stop making the speeches, to refer to the questionnaires, and to ask the jurors questions. The following colloquy then transpired:

{¶ 22} “THE COURT: * * * If you have a question, you ask[,] and you want to remember, this jury, each one, has said that they can be fair already. * * * Now we’re going to move this along. Do you understand?

{¶ 23} “MR. GEORGE KAFANTARIS: I’m not going to assume nothing, Your Honor. You assume a lot of things in your questioning.

{¶ 24} “THE COURT: Then you’ll be sitting down and I’ll pick this jury. Get to it.”

{¶ 25} Counsel then spent a considerable amount of time discussing one juror’s family and the presumption of innocence. He moved into a discussion about drugs with the juror. The court finally cut counsel off when he began to describe his conversation with a federal agent about the number of drug arrests in the area. The court told counsel he should move on to some group questions to move things along. The court told counsel the jurors had “indicated they can be fair.”

{¶ 26} Counsel then went back to questioning each juror in a tedious manner about reasonable doubt. The court instructed counsel:

{¶ 27} “This jury already knows that you didn’t look at the questionnaires ahead of time. You’re asking lots of questions that are — the information about which are already on those questionnaires.

{¶ 28} “Now, this jury has already said, under questioning — my questions and the prosecuting attorney’s questions — they’ve said that they can be fair and impartial. You want to make sure — -‘cause if peo — you know, this is a little different county for you, and I hope this is helpful. We don’t want to insult these folks. We don’t want to make them think that we doubt their answers to our prior questions, that they can be fair and impartial. So I would say that to you in a cautionary manner.

{¶ 29} “Now I want to move this thing along. My goal is to have a jury by noontime in this case, and I’ll be disappointed if we don’t have one.

{¶ 30} “The rules very clearly say that I can pick this jury. You’re — I’m allowed to give you reasonable inquiry. But you’ve had more than reasonable inquiry.

{¶ 31} “ * * *

{¶ 32} “Well, we’re going to pick a jury by noon. You’re either going to pick it or I’m going to pick it, okay?”

{¶ 33} Finally, the court resorted to limiting the questioning of individual jurors to 90 seconds per juror. This time limit applied both to appellant’s counsel and to the prosecutor. And the time limit applied only to the last four jurors called into the jury box.

{¶ 34} Crim.R. 24(B) deals with the examination of prospective jurors and states in part: “The court may permit the attorney for the defendant * * * and the attorney for the state to conduct the examination of the prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the state and defense to supplement the examination by further inquiry.” Accord R.C. 2945.27.

{¶ 35} A trial court has discretion over the scope, length, and manner of voir dire and may reasonably limit an attorney’s voir dire. State v. Abuzahrieh, 8th Dist. No. 82689, 2003-Ohio-6639, 2003 WL 22922995, at ¶ 12, citing State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, at ¶ 46, and State v. Edmonds (Apr. 11, 1991), 8th Dist. No. 58417, 1991 WL 53845. The scope of voir dire varies with the circumstances. State v. Lundgren (1995), 73 Ohio St.3d 474, 481, 653 N.E.2d 304. When examining whether the trial court abused its discretion in limiting voir dire, we are to simply look at whether the limitation was reasonable. Id.

{¶ 36} In this case, the trial court’s limitations were reasonable. The only times the trial court interrupted appellant’s counsel were when counsel seemed to be confusing the juror whom he was questioning. The court would then step in and attempt to clarify counsel’s question. After the question was clarified, counsel would resume questioning. Additionally, while the court did eventually impose a 90-second limit on the individual questioning of each juror, this restriction was fair and reasonable under the circumstances. The court applied the 90-second limit to both appellant’s counsel and to the prosecutor. And the time limit applied only to the last four jurors. The court imposed the time limit only after counsel refused to follow the court’s suggestions to refer to the jury questionnaires, ask relevant questions, and refrain from making speeches. Given these circumstances, the court’s limitations on voir dire were reasonable.

{¶ 37} Appellant additionally contends that the court should have dismissed for cause jurors Moore and Kimmel. He notes that Moore stated that he did not like anyone associated with drugs and Kimmel was acquainted with the prosecutor’s investigator, who was seated at the state’s table.

{¶ 38} Appellant used a peremptory challenge to excuse Kimmel. Moore sat on the jury.

{¶ 39} We review a trial court’s ruling on a motion to dismiss a juror for cause for abuse of discretion. State v. Gleason (1989), 65 Ohio App.3d 206, 209, 583 N.E.2d 975. Abuse of discretion connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144.

{¶ 40} A juror may be challenged for cause because “the juror is possessed of a state of mind evincing enmity or bias toward the defendant or the state.” Crim.R. 24(C). However, “no person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that the juror will render an impartial verdict according to the law and the evidence submitted to the jury at the trial.” Crim.R. 24(C).

{¶ 41} Appellant asked the court to remove Kimmel for cause, stating that she had indicated that she would have a hard time deciding this case. The trial court stated that it did not recollect Kimmel making such a statement and overruled appellant’s challenge. Appellant did not assert, as he does in his brief, that the reason he wished to remove her was because she knew the prosecutor’s investigator. However, Kimmel unequivocally stated that the fact that she knew the investigator would not interfere at all with her deliberations in this case.

{¶ 42} Appellant also asked the court to remove Moore for cause. The court overruled this challenge. Certain portions of the transcript dealing with Moore are “inaudible,” including counsel’s explanation of why he wanted Moore removed for cause. But it is clear from Moore’s statements that he was adamantly opposed to drugs.

{¶ 43} Moore made statements that he was “deadset against drugs,” that he did not like anyone associated with drugs, and “[d]opers, I just don’t like them.” He also stated that the fact that appellant was involved with drugs would be “in the back of [his] mind.” But when the court asked him whether he would be able to put the drug issue aside and concentrate on the charge, he stated, “I’ll give it a shot.” And when the prosecutor asked Moore whether he would be able to sort through the facts and make a determination based on the court’s instructions despite his feelings about the drug lifestyle, Moore responded, “Yes.” And upon appellant’s counsel’s questioning, Moore again stated that he would “go along with the evidence” regardless of the fact that appellant used drugs.

{¶ 44} The trial court did not abuse its discretion in overruling appellant’s challenges for cause for Kimmel and Moore. Both jurors indicated through their answers that they could be fair, impartial jurors and decide the case on the evidence. Kimmel stated that the fact that she knew the prosecutor’s investigator would not affect her deliberations in this case. And Moore stated that he could put his feelings about drugs aside and decide this case on the evidence presented. There was no indication to the contrary. It was within the court’s discretion to take both jurors’ words that they could act fairly and decide this case based on the evidence without letting personal matters interfere.

{¶ 45} Accordingly, appellant’s seventh assignment of error is without merit.

{¶ 46} Appellant’s eighth assignment of error states:

{¶ 47} “Appellant’s right to due process and a fair trial under the Fifth, Sixth and Fourteenth Amendments were violated when the trial court ruled that the victim’s letters were not sufficiently authenticated for use in questioning witnesses or admission into evidence.”

{¶ 48} During trial, appellant wished to cross examine Foreman’s mother, Kim Koerber, with numerous letters that he alleged that Foreman had written while she was incarcerated several months before her murder. The letters contained statements such as: Foreman was engaged in drug sales; “Al” and “Loretta” said that Foreman wore a wire on her drug supplier “Pike”; Pike cut her off and she was so angry that she wanted to shoot up his car; and Foreman wanted to kill “Holly” for her relationship with Al. The trial court questioned Koerber about whether she could authenticate the letters as being written by Foreman. Of the 17 letters, Koerber was able to identify only two of the letters as likely containing Foreman’s handwriting. The trial court sustained the state’s objections to the letters on the basis that they were unauthenticated.

{¶ 49} Appellant argues that he wanted to use these letters to demonstrate that Foreman had dangerous enemies who may have had a motive to kill her. He asserts that Foreman’s mother was able to identify some of the letters. He contends that the state turned these letters over to him from Foreman’s county jail records and that they were signed “Emily.”

{¶ 50} A trial court has broad discretion in determining whether to admit or exclude evidence, and its decision will not be reversed absent an abuse of discretion. State v. Mays (1996), 108 Ohio App.3d 598, 617, 671 N.E.2d 553.

{¶ 51} “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Evid.R. 901(A). A nonexpert may give an opinion as to the genuineness of handwriting based on familiarity not acquired for purposes of the litigation in order to authenticate the handwriting. Evid.R. 901(B)(2).

{¶ 52} Here Koerber testified that she was familiar with Foreman’s handwriting. She stated that she would “possibly” recognize Foreman’s handwriting if she saw it. Thus, Koerber could give her opinion as to the genuineness of the handwriting in the letters.

{¶ 53} For the majority of the letters, Koerber could not state that the handwriting belonged to Foreman. In fact, at one point she stated that “all the handwriting [in the different letters] seems so different.” Thus, for those letters whose handwriting Koerber could not identify at all (exhibits A through C, E, and H through R), there is no question that the court acted within its discretion in not admitting them.

{¶ 54} And Koerber’s identification of the handwriting in the remaining two letters (exhibits F and G) was not absolute. As to exhibit F, the court asked Koerber whether she could identify the writing. Koerber stated, “I can’t be positive.” The court then asked whether it appeared to be Foreman’s writing, to which Koerber responded, “Yes.” And as to exhibit G, Koerber stated, “It looks to be her handwriting.” Notably, Koerber never stated that she was sure that either letter contained Foreman’s handwriting. And Koerber stated that she had never seen these letters before. Thus, they were not written to her. These things, coupled with the facts that Koerber previously testified that she would only “possibly” be able to recognize Foreman’s handwriting and that she stated that the writing in all of the letters seemed so different, are enough to support the court’s determination to exclude exhibits F and G as unauthenticated.

{¶ 55} In sum, the trial court did not act unreasonably, arbitrarily, or unconscionably in excluding the letters. Accordingly, appellant’s eighth assignment of error is without merit.

{¶ 56} Appellant’s ninth assignment of error states:

{¶ 57} “Appellant’s right to due process and a fair trial under the Fifth, Sixth and Fourteenth Amendments were violated when the transcript of the police interview of Mr. Irwin’s mother was mistakenly submitted to the jury although not offered or admitted into evidence.”

{¶ 58} The day after the murder, police interviewed appellant’s mother, Cheryl Carpenter, and recorded an interview. In the interview, Carpenter discussed appellant’s heroin addiction, her recent struggles with him, and the fact that she had filed a criminal-trespassing complaint against him. During Carpenter’s testimony at trial, the prosecutor used the transcript of this interview to refresh Carpenter’s recollection, but noted that the state was not offering it as an exhibit. Carpenter read the statement only to herself. She did not read any part of it to the jury.

{¶ 59} Appellant contends that despite not being offered into evidence, the transcript of Carpenter’s interview went to the jury with the other exhibits. Appellant argues that the transcript contained prejudicial information that was not otherwise brought out at trial. He points out that at the time of the interview, Carpenter was under the assumption that he had committed the murder. He also points out that she referred to his prior jail sentence, prior incidents of theft and dishonesty, his history of drug abuse, the fact that she felt responsible for Foreman’s death because she could not stop him from using drugs, and the fact that she believed appellant committed the murder and had no remorse. And appellant notes that there were numerous handwritten notes in the transcript tending to indicate his guilt. Appellant argues that because this un-admitted evidence weighed so heavily against him, we must assume that the jury was prejudiced by it.

{¶ 60} It is not entirely clear why appellant makes the assumption that the transcript of Carpenter’s police interview went to the jury. The interview was marked as State’s Exhibit 131. But the prosecutor clearly stated, “I’m only marking it because it’s going to need to be part of the record and I’m not — we’re not going to offer it as an exhibit.” Appellant can point to no portion of the record where the court actually admits the transcript into evidence. In fact, he admits that the transcript was never admitted.

{¶ 61} We can only speculate that the reason appellant assumes the transcript was sent to the jury, even though it was never admitted, is because it is included with the other state’s exhibits attached to the trial transcript. A separate manila folder attached to the trial transcript is labeled “EXHIBITS NOT ADMITTED, DEFENDANT’S EXHIBITS, A, B, & C, E THROUGH R, DEFENDANT’S EXHIBIT D, ADMITTED — SAME AT [sic] STATE’S # 6.”

{¶ 62} Perhaps the reason appellant assumes that the interview was given to the jury was because it was not contained in the folder labeled “exhibits not admitted.” However, it appears that this folder was merely for defense exhibits not admitted, namely the letters. The only exhibits in this folder were the letters that appellant’s counsel sought to admit, which the trial court did not allow.

{¶ 63} In addition to the transcript that appellant takes issue with, two other state’s exhibits were not admitted, yet they remained part of the record. State’s exhibits 7 and 30 were both offered but not admitted. The court noted, however, that even though they were not admitted, they would remain part of the official record. These exhibits, like the transcript, are marked and attached as part of the record with the other state’s exhibits that were admitted. In fact, it seems that it may be the general practice that even when exhibits are not admitted into evidence and given to the jury, they remain part of the record.

{¶ 64} Appellant is asking this court to presume that an irregularity occurred here, without any proof of such an irregularity. If an appellant cannot demonstrate the claimed error, the appellate court is to presume the regularity of the trial court proceedings. State v. Moore, 11th Dist. No. 2007-L-196, 2008-Ohio-5941, 2008 WL 4901727, at ¶ 30. Because appellant cannot prove that the jury saw the transcript of Carpenter’s interview, we cannot find error here. However, we should note that we are troubled by the apparent practice of attaching un-admitted exhibits along with the admitted exhibits to the trial transcript. The better practice would be to keep all un-admitted exhibits in a separate folder or location so that no confusion arises on this issue.

{¶ 65} Accordingly, appellant’s ninth assignment of error is without merit.

{¶ 66} Appellant’s fourth assignment of error states:

{¶ 67} “Appellant was denied his right to due process of law when he was not permitted to be present at the first day of the hearing of his motion for new trial.”

{¶ 68} On the first day of the new-trial hearing, the court asked appellant’s counsel whether he had arranged for appellant to be there. Appellant’s counsel informed the court that he had expected that appellant would be brought back from prison but that it was his fault that appellant was not there. The court asked counsel whether he intended to proceed without appellant, to which counsel responded, “Yes.” In its subsequent judgment entry, the court found that appellant’s counsel “indicated to the court that he had not made arrangements to have his client returned from the institution for the proceeding. Therefore, Mr. Kafantaris waived the presence of his client.”

{¶ 69} Appellant argues that the trial court violated his due-process rights by conducting a substantial portion of the new trial hearing without him.

{¶ 70} Crim.R. 43(A)(1) provides that a criminal defendant has a right to be present at all critical stages of his trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence.

{¶ 71} Crim.R. 43 does not provide that a defendant has a right to be present at a motion-for-new-trial hearing. Moreover, courts have held that a defendant does not have a right to be present at a hearing on his motion for new trial. State v. Prichard (Nov. 26, 1999), 1st Dist. No. C-990148, 1999 WL 1100139; State v. Padavick (Feb. 18, 1988), 8th Dist. No. 53343, 1988 WL 18656; State v. South (Nov. 5, 1987), 4th Dist. No. 446, 1987 WL 19694. Thus, appellant had no right to be present at his new-trial-motion hearing.

{¶ 72} Accordingly, appellant’s fourth assignment of error is without merit.

{¶ 73} Appellant’s fifth assignment of error states:

{¶ 74} “Appellant’s rights to due process and to confront the witnesses against him, guaranteed by the Fifth, Sixth, and Fourteenth Amendments were violated when the trial court refused to grant his attorney permission to question hostile witnesses with leading questions.”

{¶ 75} During the motion-for-new-trial hearing, appellant’s counsel attempted to use leading questions when questioning his witnesses. The prosecutor repeatedly objected, and the trial court sustained the objections. Appellant’s counsel sought permission to treat Todd, the man who had allegedly confessed to Foreman’s murder, as a hostile witness. The court refused permission, agreeing with the prosecutor that because appellant had subpoenaed Todd, his counsel had to ask him questions as if on direct examination.

{¶ 76} Appellant argues that the court should have permitted him to treat Todd as a hostile witness since appellant was seeking exoneration based on evidence that Todd was the true murderer. He likewise asserts that the court should have permitted him to treat Patricia Earns and Chief Burgess as hostile witnesses, so that he could ask them leading questions. Chief Burgess, appellant states, was the head of the investigation against him and was, therefore, the state’s witness. As to Earns, appellant argues that his counsel was surprised by her testimony when she completely changed what she had said in a statement to police.

{¶ 77} During the hearing, appellant’s counsel asked the court to have Todd and Chief Burgess declared hostile witnesses, so that he could ask them leading questions. The court denied these requests. Thus, the issues of whether the trial court should have declared Todd and Chief Burgess hostile witnesses are properly before us for review.

{¶ 78} But appellant’s counsel never asked the court to declare Earns a hostile witness. Counsel asked many leading questions of her. To some of these leading questions, the trial court sustained the state’s objections. However, since appellant never asked the court to declare Earns a hostile witness, he did not preserve this issue for appeal.

{¶ 79} It is within the trial court’s discretion to allow or refuse leading questions on direct examination. State v. Jackson (2001), 92 Ohio St.3d 436, 449, 751 N.E.2d 946; Ramage v. Cent. Ohio Emergency Serv. Inc. (1992), 64 Ohio St.3d 97, 111, 592 N.E.2d 828.

{¶ 80} Evid.R. 611(C) provides, “When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.” Generally, a party must show that a witness is either hostile or identified with the adverse party in order to permit leading questions on direct examination. State v. Benson, 11th Dist. No. 2001-P-0086, 2002-Ohio-6942, 2002 WL 31813024, at ¶ 25.

{¶ 81} “Traditionally, a ‘hostile witness’ is one who surprises the calling party at trial by turning against him while testifying. The traditional ‘hostile witness’ is addressed under Evid.R. 607. An ‘adverse witness’ is one who identifies with the opposing party because of a relationship or a common interest in the outcome of the litigation. Many times, the terms ‘hostile’ and ‘adverse’ are used interchangeably without drawing a clear distinction between the meaning of the terms.” State v. Darkenwald, 8th Dist. No. 83440, 2004-Ohio-2693, 2004 WL 1171876, at ¶ 15.

{¶ 82} In this case, Todd did not testify in any proceeding other than the new-trial-motion hearing. Thus, he did not change his testimony. Additionally, his testimony was no surprise to appellant. Appellant was aware from Todd’s polygraph test that Todd denied ever having confessed to the murder and denied having anything to do with the murder. Todd never turned against appellant while testifying. He gave the testimony appellant expected from him. This testimony just happened to be contrary to appellant’s allegations in this case. Thus, Todd was not a “hostile” witness as appellant contends.

{¶ 83} But Todd may have been an adverse witness. In a criminal case, the state is the adverse party against the defendant. Benson, 2002-Ohio-6942, 2002 WL 31813024, at ¶ 24. Todd was not a party with the state. However, he may have shared a common interest in the outcome of the proceeding with the state. The state’s interest at the new-trial hearing was to have the court overrule appellant’s motion for a new trial so that appellant’s conviction would stand. In order to do this, the state wanted the court to believe Todd’s statement that he did not confess to Foreman’s murder. Todd’s interest was to clear his name. Thus, Todd’s interest was somewhat similar, although not identical, to that of the state.

{¶ 84} If Todd was an adverse witness because his interests were aligned with the state’s interests, then the trial court should have allowed appellant to ask him leading questions as if on cross examination. However, if such an error exists, it was harmless.

{¶ 85} First, even though the trial court denied counsel’s request to treat Todd as a hostile witness, counsel nonetheless examined Todd using countless leading questions.

{¶ 86} Second, counsel questioned Todd for an extended period of time. During this questioning, counsel asked Todd the most important questions regarding whether he had ever confessed to Beaver. For instance, counsel asked Todd whether he had ever told Beaver that he stabbed Foreman and whether he had ever told Beaver that he took Foreman’s dope. Whether counsel asked these questions in the form of nonleading or leading questions would not have made a difference in Todd’s answers. Todd unequivocally testified that he had never made any such confession.

{¶ 87} Third, the motion for a new trial was heard by a judge, not a jury. Presumably, a judge would be less swayed by the effect of leading questions than would a jury.

{¶ 88} For these reasons, even if the court erred in not allowing appellant’s counsel to ask Todd leading questions, any such error was harmless.

{¶ 89} As to Chief Burgess, he too was not a hostile witness. He did not give surprising testimony, nor did he turn against appellant during his testimony. Chief Burgess was likely an adverse witness, however. Chief Burgess was clearly aligned with the state, since he was the chief investigator for this case. Since Chief Burgess was an adverse witness, the court should have allowed counsel to ask him leading questions.

{¶ 90} But as with Todd, any error in not declaring Chief Burgess an adverse witness was harmless. Counsel sought to use leading questions when questioning Chief Burgess about a statement he took from Earns. But all counsel was attempting to do was to read Earns’s statement, which contradicted the testimony she gave at the hearing. In actuality, counsel was attempting to impeach Earns by means of the statement that Chief Burgess had taken from her. Counsel admitted as much.

{¶ 91} Given counsel’s argument on the issue, the court stated that it would read and admit into evidence the entire statement that Earns gave to Chief Burgess and consider it in weighing Earns’s testimony. Consequently, the end result was the same as if the court had permitted counsel to read Earns’s statement into the record by way of leading questions to Chief Burgess. Therefore, any error in failing to allow appellant’s counsel to ask Chief Burgess leading questions was harmless.

{¶ 92} Accordingly, appellant’s fifth assignment of error is without merit.

{¶ 93} Appellant’s tenth assignment of error states:

{¶ 94} “Appellant’s right to due process and a fair trial under the Fifth, Sixth and Fourteenth Amendments were violated when the trial court exhibited an unfair bias against him in manner and rulings both at trial and at the hearing on the motion for new trial.”

{¶ 95} Appellant argues here that the trial court was biased against him. He points to the court’s limitation of voir dire, asserts that the court sustained nearly every objection made by the prosecutor and overruled nearly every objection he made, points out that the court threatened his counsel with contempt several times and eventually found him in contempt twice, and notes that the trial court would not allow him any continuances.

{¶ 96} As discussed above, the trial court’s limitation of voir dire was reasonable. Furthermore, as will be discussed later, the denial of the requested continuances was also reasonable in light of the circumstances.

{¶ 97} As to the sustaining of the prosecutor’s objections and the contempt warnings/findings, these rulings and warnings do not reflect a bias against appellant. Instead, they reflect that appellant’s counsel was acting in a manner that can be described as oblivious to the trial court’s admonitions and the rules of evidence, in addition to raising irrelevant issues and proceeding in a painstakingly slow manner throughout the trial.

(¶ 98} It is impossible to completely portray the manner in which counsel conducted himself throughout this five-day trial and two-day motion hearing. However, some examples are illustrative.

{¶ 99} For instance, while cross-examining the East Liverpool dispatcher, counsel asked the following question:

{¶ 100} “You got a call to an ambulance. They don’t know why they’re being called. Okay? You can’t send anybody over there because your officers are serving a warrant. Okay? Apparently Tri-County didn’t call the sheriffs up to find out; they called you. Why didn’t you, yourself, call the county and say, ‘Why is this ambulance over there? Why is this ambulance being called?’ ”

{¶ 101} The dispatcher attempted to answer at this point, but counsel interrupted and continued, “You didn’t think of it? Or it wasn’t your job? Your job is to write things down. You know, people’s life [sic] depends on this.”

{¶ 102} And when questioning Officer Hedrick, appellant began his question as follows:

{¶ 103} “Now, you know, I had a case about 25 years ago. The guy had — was handed Quaaludes. Like in his pocket. And he was arrested. And they came back to collect the Quaaludes or the money and he had neither. But the police ***."

{¶ 104} And when questioning the BCI investigator, counsel began his question with another speech:

{¶ 105} “Now, I knew somebody who was selling a car. He put it on the Internet, under E-bay? And I happened to know that car. Had a little picture of that car. And I didn’t see any dents on it. So I say, ‘Well, where are the dents?’ ”

{¶ 106} Later in questioning the same witness, counsel stated, “Okay. You know, as cases go, Mr. Carlini, things look kind of thin here.”

{¶ 107} When questioning Chief Burgess, counsel began another speech, “That’s nice and good, but you see, somehow — if I’m going to call the prosecutor and a BCI unit, I got to get my bearings. I got to go in. I got to look around. I got to see what’s going on. I got to talk to somebody, maybe.”

{¶ 108} In fact, counsel frequently seemed to think aloud before actually posing a question to the witnesses. Later, while counsel was questioning Chief Burgess, the following colloquy occurred:

{¶ 109} “Q. [by appellant’s counsel] All right. Okay. I’m trying to figure things out. So you walk into the house. There’s a dead woman over there. Or dying. Bleeding. Andy’s in the car.

{¶ 110} “MR. HERRON [the prosecutor]: Your Honor, does Mr. Kafantaris have a question, please.

{¶ 111} “MR. GEORGE KAFANTARIS: I’m kind of thinking.

{¶ 112} “THE COURT: If you’re going to think, think silently. And then ask a question, sir, please.”

{¶ 113} And later, counsel continued:

{¶ 114} “Q. You’re a little mistaken?

{¶ 115} “A. Yes, sir.

{¶ 116} “Q. Any other mistakes?

{¶ 117} “A. (No audible response).

{¶ 118} “Q. No way.

{¶ 119} “A. I’m human, sir.

{¶ 120} “Q. Right. Human. I’m human. A human makes mistakes.

{¶ 121} “THE COURT: Is that a question, sir?

{¶ 122} “MR. GEORGE KAFANTARIS: He say, ‘I’m human.’ I say, ‘I’m human, too.’ I make more [mistakes] than anybody else, you know.

{¶ 123} “MR. HERRON: Is there a question, Your Honor?

{¶ 124} “THE COURT: What’s the question, Mr. Kafantaris, please.

{¶ 125} “MR. GEORGE KAFANTARIS: I make mistakes.

{¶ 126} “THE COURT: Now, wait a minute. The objection is sustained. The jury is instructed to disregard the commentary. We need a question.

{¶ 127} “MR. GEORGE KAFANTARIS: Okay. We need a question.”

{¶ 128} Additionally, while questioning Foreman’s mother about Foreman’s drug use, counsel began another commentary:

{¶ 129} “Q. You know, sometimes things happen under your nose, you don’t know about them.

{¶ 130} “MR. HERRON: Objection. Is that a question?

{¶ 131} “THE COURT: Sustained. Stricken.

{¶ 132} “Q. I’m just talking to myself here.

{¶ 133} “THE COURT: Mr. Kafantaris—

{¶ 134} “Q. And it’s painful for me. Don’t think that it ain’t.

(¶ 135} “THE COURT: Counsel. Counsel, I’m warning you. I want questions, please. I’ve tried to be patient. All right?”

{¶ 136} When he began questioning a deputy coroner from Cuyahoga County, counsel started off by stating, “You know, we got a funeral home? We do. It might surprise you, but we do.” Later, the coroner replied to a question by stating that it was up to the jury to decide who committed the murder. Counsel then stated, “That’s very fair. That’s the grandest, the fairest thing I heard here today.”

{¶ 137} Counsel also made personal references about the principles in this case while questioning the witnesses. For instance, when questioning the DNA analyst counsel referred to Foreman, saying, “Poor Emily * * * I feel bad for her.” And when questioning Foreman’s mother about the alley access behind her house, he stated, out of the blue, “I love my kid. If he was standing here where Andy is, I’d love him no more, no less.” And counsel commented to the coroner, “[Y]ou remind me of my dad.”

{¶ 138} Counsel even went so far as to make the following comment to the judge as the parties were discussing the logistics of the jury, “There was a nice picture of you in the paper, Judge. You looked very calm. * * * Very scholarly.”

{¶ 139} These are the types of questions and comments to which the court sustained the state’s objections. These are also the types of comments and questions that resulted in the court’s finding that counsel was in contempt. Counsel seemed to repeatedly disregard the court’s instructions and admonitions to stop making speeches, stop editorializing, and simply ask relevant questions of the witnesses. Since counsel refused to heed the court’s warnings, we cannot view the adverse rulings against appellant as demonstrating a bias toward appellant or his counsel, but instead as a means of the court exercising control over the trial.

{¶ 140} Additionally, the court did periodically sustain appellant’s objections and grant his requests.

{¶ 141} Accordingly, appellant’s tenth assignment of error is without merit.

{¶ 142} Appellant’s eleventh assignment of error states:

{¶ 143} “The appellant was denied his constitutional right to due process and a fair trial under the Fifth, Sixth and Fourteenth Amendments because of prosecutorial misconduct at trial, during closing argument, and after appellant’s conviction.”

{¶ 144} Here, appellant argues that the prosecutor engaged in continuing misconduct. He acknowledges that he did not object to these alleged instances of misconduct at trial. But he argues that his trial counsel was ineffective for failing to object to these instances and, therefore, these errors are preserved for purposes of this appeal.

{¶ 145} The test for prosecutorial misconduct is whether the conduct complained of deprived the defendant of a fair trial. State v. Fears (1999), 86 Ohio St.3d 329, 332, 715 N.E.2d 136. In reviewing a prosecutor’s alleged misconduct, a court should look at whether the prosecutor’s remarks were improper and whether the prosecutor’s remarks affected the appellant’s substantial rights. State v. Smith (1984), 14 Ohio St.3d 13, 14, 14 OBR 317, 470 N.E.2d 883. “[T]he touchstone of analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’ ” State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, at ¶ 61, quoting Smith v. Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78. An appellate court should not deem a trial unfair if, in the context of the entire trial, it appears clear beyond a reasonable doubt that the jury would have found the defendant guilty even without the improper comments. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, at ¶ 121.

{¶ 146} A failure to object to alleged prosecutorial misconduct generally waives all but plain error. Hanna at ¶ 77; LaMar at ¶ 126. But a defendant’s claim that he was denied effective assistance of counsel eliminates the requirement that an objection be made in order to preserve an error for appeal. State v. Carpenter (1996), 116 Ohio App.3d 615, 621, 688 N.E.2d 1090.

{¶ 147} We will review each of appellant’s alleged instances of misconduct.

{¶ 148} First, appellant asserts that the prosecutor feigned ignorance of the origin of Foreman’s letters when the state was the party who turned the letters over to appellant.

{¶ 149} Appellant makes several allegations here that are unsubstantiated by the record. Appellant claims that these letters had been in Foreman’s jail records and that the prosecutor knew of the letters’ origin. However, appellant points to no support in the record for these claims. He makes this assumption because the state showed appellant the letters during discovery. Simply because the letters were in the state’s possession does not mean that the state knew the origin of the letters or who authored them. Thus, there was no prosecutorial misconduct concerning the letters.

{¶ 150} Second, appellant contends that the prosecutor acted unethically by arguing against a continuance so that appellant could present newly discovered evidence by way of Beaver’s testimony that someone else had confessed to the crime and then later, at the new-trial hearing, arguing that the motion should be denied because Beaver was available to testify at the trial.

{¶ 151} When appellant requested a continuance on the last day of trial so that he could locate Beaver and bring him to testify as to Todd’s alleged confession, the prosecutor objected. The prosecutor argued that Todd was on appellant’s witness list. He further argued that the case should go forward because the jury was already there and had heard testimony that appellant had admitted to the crime. The prosecutor also indicated that regardless of the outcome of the case, it would follow up and investigate Beaver’s alleged statements. At the motion-for-new-trial hearing, Beaver testified that he was available to testify on the fifth day of trial and would have been willing to do so if asked.

{¶ 152} The prosecutor did not know until Beaver testified at the new-trial hearing that he was willing and able to testify on the fifth day of trial. Because the prosecutor could not have known this at the time he argued against the continuance, appellant cannot say that it was misconduct for the prosecutor to argue against the continuance.

(¶ 153} Third, appellant asserts that the prosecutor waited to file its reply to appellant’s motion for a new trial until the afternoon before the hearing and included polygraph test results even though they were inadmissible without the stipulation of the parties.

{¶ 154} We do not condone the prosecutor’s backhanded attempt to introduce the polygraph results, which we will discuss in greater detail below. However, we cannot conclude that it rises to the level of misconduct.

{¶ 155} Fourth, appellant argues that the prosecutor turned over the police call log dealing with “Linville” in an untimely fashion.

{¶ 156} Here appellant is referring to a call made to police by a man named “Michael Linville.” Linville claimed to have information concerning Foreman’s murder. Linville did not contact police, however, until May 19, 2007, when the court was already engaged in the motion-for-new-trial hearing. Chief Burgess testified that he asked Linville to come in and give a statement three times, but Linville never showed up. Chief Burgess was unsure whether Linville was a real person or an imposter.

{¶ 157} The police received the Linville call on May 19, a Saturday. Appellant’s counsel stated at the May 22 hearing date that the prosecutor just gave him a copy of the call log that day. May 22 was a Tuesday. The prosecutor stated that he faxed appellant’s counsel a copy on the previous day, which would have been the first business day after the police received the call. However, appellant’s counsel stated that he could not receive a fax that Monday because of some type of “changeover” at his office. Consequently, the prosecutor could not have engaged in misconduct because he tried to give appellant’s counsel a copy of the call log on the first business day after police received it.

{¶ 158} Fifth, appellant contends that the prosecutor went beyond the evidence in giving a dramatic narrative of why appellant must have killed Foreman.

{¶ 159} In his closing argument, the prosecutor stated in part: “This Defendant was desperate and was in a desperate rage. He needed money. He needed a driver’s license. He wanted heroin.” The prosecutor then later stated:

{¶ 160} “The Defendant * * * in a fit of rage, for some reason or other, he’s angry that he (sic) won’t give him her driver’s license — his driver’s license. He’s angry that she won’t take the check for dope. He’s angry she won’t give him more dope. And he’s not taking no for an answer. And he grabs her around the throat. With his other hand, he’s got that knife. ‘Give it to me. Give it to me.’ You heard how he treated his mother. ‘Give it to me,’ he’s saying. ‘Give it to me.’ She’s not giving it up. And he puts that knife deeper and harder on her.. ‘Give it to me.’ He’s not taking no for an answer, this guy.”

{¶ 161} Part of the prosecutor’s closing argument went beyond the scope of the evidence. There was evidence that appellant was angry, that he treated his mother poorly that day, that he needed to get his driver’s license back from Foreman, that he was angry Foreman would not accept a check, and that he stabbed Foreman. But there was no evidence that appellant said, “Give it to me” over and over while he stabbed Foreman as the prosecutor suggested.

{¶ 162} Parties are generally afforded wide latitude in closing arguments. State v. Spivey (Jan. 13, 1997), 7th Dist. No. 89-CA-172, 1997 WL 16196; State v. Smith (1984), 14 Ohio St.3d 13, 14 OBR 317, 470 N.E.2d 883. When reviewing whether a prosecutor’s remarks during closing arguments were prejudicial, we must view the closing argument in its entirety. State v. Treesh (2001), 90 Ohio St.3d 460, 466, 739 N.E.2d 749; State v. Moritz (1980), 63 Ohio St.2d 150, 157, 17 O.O.3d 92, 407 N.E.2d 1268.

{¶ 163} In reviewing the prosecution’s entire closing argument, we cannot conclude that these isolated improper comments were prejudicial. Two prosecutors prosecuted this case. One gave the initial part of the closing argument, and the other gave the rebuttal portion. The first prosecutor took a few minutes to go over the elements of the crime, the jury’s duty, and role of the people involved in the process. He then went through the evidence, summarizing most of the witnesses’ testimony. The second prosecutor spent most of his time attacking appellant’s “conspiracy theory” of the case and rebutting appellant’s counsel’s comments on the evidence.

{¶ 164} This was a five-day trial with numerous witnesses, over 1,100 pages of testimony, and over 100 exhibits. It is unlikely that the improper comments in an otherwise proper closing argument prejudiced appellant to the point that it altered the outcome of his trial. Instead, as we will next discuss, appellant’s counsel’s ineffectiveness was what prejudiced his right to a fair trial. In fact, this improper comment by the prosecutor during closing argument is but one example of the ineffective assistance of appellant’s counsel. Counsel should have objected to the prosecutor’s commentary regarding the inflammatory statements that were not in evidence.

{¶ 165} Finally, appellant argues that the prosecutor withheld evidence that, according to Chief Burgess, “pointed in other directions.”

{¶ 166} On cross-examination, appellant’s counsel asked Chief Burgess whether, during the course of his investigation, he looked for any other suspects. Chief Burgess testified that throughout the investigation there were other suspects. He then stated, “There was other information that would have came in that pointed at other directions, but they ended up nowhere. Dead ends.”

{¶ 167} Appellant claims that the state failed to turn over this “information that pointed in other directions.” Appellant fails to consider that Chief Burgess testified that he investigated other suspects and all of the information and found that it all resulted in “dead ends.” Exactly what information or who Chief Burgess investigated is not in the record. Additionally, appellant makes no claims as to what this evidence might be or how it may have helped him. Without more to go on, it is difficult to discern whether or how appellant was prejudiced in this regard.

{¶ 168} Accordingly, appellant’s 11th assignment of error is without merit.

{¶ 169} Appellant’s second assignment of error states:

{¶ 170} “Appellant’s right to due process guaranteed by the Fifth and Fourteenth Amendments was violated when the trial court denied appellant’s motion for a new trial based on newly discovered evidence.”

(¶ 171} Appellant claims that the trial court should have granted him a new trial based on the newly discovered evidence he presented that Greg Todd had confessed to the murder. He further argues that the trial court abused its discretion by considering the results of polygraph tests that the state submitted along with its response to appellant’s motion for a new trial. He asserts that he never stipulated to these results and that they were inherently unreliable. Appellant argues that the court’s job was to judge whether the newly discovered evidence demonstrated a strong probability that it would change the result of the trial. Instead, appellant claims that the court weighed the credibility of the witnesses using the inadmissible polygraph-test results.

{¶ 172} We review a trial court’s decision to grant or deny a Crim.R. 33 motion for a new trial for abuse of discretion. State v. Schiebel (1990), 55 Ohio St.3d 71, 76, 564 N.E.2d 54.

{¶ 173} A new trial may be granted on the defendant’s motion, “[w]hen new evidence material to the defense is discovered which the defendant could not with reasonable diligence have discovered and produced at the trial.” Crim.R. 33(A)(6). In order to grant a new trial based on newly discovered evidence, it must be shown that the new evidence, “(1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence.” State v. Petro (1947), 148 Ohio St. 505, 36 O.O. 165, 76 N.E.2d 370, syllabus.

{¶ 174} The evidence at the new trial hearing was as follows.

{¶ 175} Tommy Shields was in jail with appellant and Todd. He testified that he saw appellant and Todd in jail and that he told his ex-girlfriend, Julie Conyer, that he saw them. He also stated that he told Conyer that he saw Todd leaving the jail chapel crying. Shields stated that he never talked to appellant or Todd.

{¶ 176} Conyer, however, testified that after Shields was released from jail, he told her otherwise. According to Conyer, Shields stated that he saw appellant and Todd leaving the jail chapel together, crying. She stated that Shields told her that he asked Todd what was wrong and Todd told him, “I can’t believe he’s taking the fall for me. I can’t believe he’s doing this man.” Conyer further stated that Shields told her that Todd told him that both he and appellant were at Foreman’s house on the day of the murder. According to Conyer, Todd also told Shields he was covered in blood walking down the street and the “East Liverpool cops were so f-ing stupid, because they drove right past him.”

{¶ 177} Shelly Short, Conyer’s friend, testified that Conyer told her about Shields’s alleged statement.

{¶ 178} Jason Beaver was the main witness to testify for appellant. According to Beaver, Todd came to his apartment sometime after the murder, possibly in late August, and brought 35-50 stamps of heroin. Beaver stated that he allowed Todd to “shoot up” in his apartment in exchange for five stamps of heroin, which he then traded for cocaine.

{¶ 179} According to Beaver, after Todd used his heroin, he confessed to Foreman’s murder. Todd allegedly told Beaver that he went with appellant to Foreman’s house on the day of the murder to rob Foreman of her heroin. Beaver stated that Todd told him that a struggle ensued when Foreman began swinging a knife at him. Beaver stated that Todd stated that appellant grabbed Foreman’s arm while he got the drugs out of her purse. Beaver testified that Todd stated that he took the knife from Foreman and stabbed her. At the time of this conversation, both Beaver and Todd were on drugs.

{¶ 180} Beaver additionally stated that Todd told him that after stabbing Foreman he left her house on foot. Todd told Beaver, “The dumbass police drove right by.”

{¶ 181} Beaver testified that at first he did not care about Todd’s confession because he was on drugs. However, he stated that once he got sober, Todd’s confession began to bother him. Beaver stated that the reason he waited almost five months to tell anyone about Todd’s confession was that he was going through withdrawal. At the time, Beaver was living with Patricia Earns and he told her what he knew. Beaver testified that he finally called appellant’s brother on the Friday of trial and told him what Todd had said.

{¶ 182} Finally, Beaver testified that he was available and willing to testify on the Saturday of trial.

{¶ 183} Next, appellant called Todd to testify. Todd testified that he learned of the allegation that he had made a confession in this case, so he went to the police chief to find out how to handle the situation. He asked whether he could take a polygraph test to clear his name. Todd stated that he gave fingerprint and DNA samples. Todd denied that he had ever confessed to Beaver or Shields.

{¶ 184} And appellant called Michael LoPresti, the polygraph examiner, to testify regarding the results of Beaver’s and Todd’s polygraph tests. The prosecutor had attached the polygraph results to its response to appellant’s motion for a new trial. LoPresti testified that he concluded Beaver was not telling the truth when he stated that Todd told him he stabbed Foreman. He also testified that he concluded Todd was being truthful when he stated he did not stab Foreman.

{¶ 185} Additionally, appellant called Patricia Earns. Beaver lived with Earns for a period of time. Earns testified that Beaver initially told her that he wanted to stop using drugs because appellant had killed Foreman. But she stated that Beaver later told her that Todd had confessed to him that he was the one who had killed Foreman. Earns further testified, however, that Beaver is a compulsive liar, she never knows when he is telling the truth, she does not believe anything he says, and she does not believe what he said about Todd’s confession. {¶ 186} Finally, appellant called Chief Burgess. Chief Burgess testified that Earns made a statement to him that Beaver told her Todd had confessed to Foreman’s murder and that she believed him.

{¶ 187} Appellant called numerous other witnesses, none of whom testified as to any newly discovered evidence or corroborated or contradicted the key testimony of Beaver and Todd. These witnesses included the coroner, appellant’s stepsister, appellant’s stepmother, and appellant’s mother.

{¶ 188} In its judgment entry denying appellant’s motion, the trial court briefly summarized the testimony. It then stated that it was faced with weighing the witnesses’ credibility. The court found that Todd’s testimony was most reliable. It stated that Todd’s testimony was “extensive and convincing.” The court also stated that it considered the results of the polygraph tests indicating that Todd was telling the truth when he denied responsibility for Foreman’s murder while indicating that Beaver was lying when he stated that Todd had admitted to the murder.

{¶ 189} In order to warrant a new trial, appellant had to demonstrate that the new evidence complied with the Petro requirements, 148 Ohio St. 505, 36 O.O. 165, 76 N.E.2d 370, syllabus.

{¶ 190} First, the evidence had to disclose a strong probability that it would change the trial’s outcome. If we consider Beaver’s and Conyer’s testimony, there is a strong possibility that it could change the outcome of appellant’s trial. Both witnesses, independent of each other, testified that Todd confessed to the murder. Additionally, they both gave the same detail that Todd stated that he walked down the street after the murder and the police drove right by him. This corroborating detail makes their testimony even stronger.

{¶ 191} Beaver testified that Todd confessed to him, while Conyer testified that Todd confessed to Shields. However, Shields denied ever telling Conyer that Todd confessed. Additionally, we must consider that Todd testified that he had nothing to do with the murder and denied ever making confessions to the contrary. Nonetheless, given Conyer’s and Beaver’s testimony, there is a strong possibility that the evidence would change the trial’s outcome. Their testimony might have been just enough to create a reasonable doubt as to appellant’s guilt in the mind of at least one juror.

{¶ 192} Second and third, the evidence must have been disc