[Cite as State v. Weaver, 2021-Ohio-1025.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. William B. Hoffman, P.J. 

 Plaintiff-Appellee : Hon. Patricia A. Delaney, J. 

 : Hon. Earle E. Wise, Jr., J. 

-vs- : 

 : 

EMILE WEAVER : Case No. CT2019-0034 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. CR2015-0216 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: March 29, 2021 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

TAYLOR BENNINGTON RACHEL TROUTMAN 

27 North Fifth Street BETHANY O'NEILL 

P.O. Box 189 MICHELLE UMAÑA 

Zanesville, OH 43701 PETER GALYARDT 

 250 East Broad Suite, Suite 1400 
Muskingum County, Case No. CT2019-0034 2 

 Columbus, OH 43215 

Wise, Earle, J.

{¶ 1} Defendant-Appellant Emile L. Weaver appeals the April 11, 2019 judgment 

entered by the Muskingum County Common Pleas Court dismissing her petition for 

postconviction relief following a hearing. Plaintiff-Appellee is the state of Ohio. 

FACTS AND PROCEDURAL HISTORY 

{¶ 2} This matter comes before us for the third time. A full recitation of the 

underlying facts may be found in our prior consideration of this matter. State v. Weaver, 

5th Dist. Muskingum No. CT2016-33, 2017-Ohio-4374 (Weaver I) and State v. Weaver, 

5th Dist. No. CT2017-75, 2018-Ohio-2509 (Weaver II). We therefore abbreviate our 

statement of facts in the present matter. 

{¶ 3} On July 22, 2015, in connection with the death of her newborn by 

asphyxiation, the Muskingum County Grand Jury returned an indictment charging 

Appellant with one count of aggravated murder, one count of gross abuse of a corpse, 

and two counts of tampering with evidence. The case proceeded to a jury trial 

commencing on May 10, 2016 and Appellant was found guilty on all counts. 

{¶ 4} At sentencing, the trial court merged the two tampering-with-evidence 

counts and imposed a one-year prison sentence on said offense. The trial court further 

imposed a three-year prison sentence for gross abuse of a corpse. It ordered these 

sentences to run consecutively to each other and to the sentence for aggravated murder. 

Finally, the trial court imposed life in prison without parole for the offense of aggravated 

murder. In support of its sentencing decision, the trial court concluded appellant was not 
Muskingum County, Case No. CT2019-0034 3 

remorseful, she had committed “the worst form of the offense,” and she had caused 

emotional hardship to her sorority sisters. 

{¶ 5} Appellant filed her first appeal to this Court raising four assignments of 

error, specifically 1) the trial court erred in imposing a sentence of life imprisonment 

without the possibility of parole; 2) the sentence is disproportionate to her conduct; 3) the 

court erred in imposing consecutive sentences; and 4) the conviction of gross abuse of a 

corpse was not supported by sufficient evidence. We found we were without statutory 

authority to review the sentence for aggravated murder, and therefore overruled 

Appellant's first two assignments of error on the basis of lack of appellate jurisdiction. 

State v. Weaver, 5th Dist. Muskingum, 2017-Ohio-4374, 93 N.E.3d 178. We overruled 

her remaining assignments of error on the merits and affirmed the judgment of the trial 

court. 

{¶ 6} Appellant filed a postconviction petition on August 25, 2017, an amended 

petition on September 5, 2017, and a second-amended petition on September 6, 2017. 

The State filed its response on September 18, 2017. 

{¶ 7} In her petition, Appellant alleged counsel was ineffective for failing to 

present evidence concerning neonaticide in mitigation of sentence. She attached to her 

petition an affidavit of Dr. Clara Lewis, and an article by Michelle Oberman discussing 

neonaticide, including sentencing data. In her affidavit, Dr. Lewis, who is a professor at 

Stanford University, stated she read the transcript and docket from Appellant's trial. She 

also reviewed news media coverage of the case and social media posts available from 

Appellant and her friends. In addition, she conducted a personal interview with Appellant 

on August 23, 2017. The affidavit stated in her expert opinion, Appellant's case is a typical 
Muskingum County, Case No. CT2019-0034 4 

example of contemporary neonaticide, her sentence is disproportionately harsh when 

compared to sentences given to others convicted of the crime, and the defense failed to 

introduce relevant information about the social and cultural causes of neonaticide, which 

would have provided context for understanding the crime and established mitigation. In 

her affidavit and her attached report, Dr. Lewis explained how immaturity, social isolation, 

the insistence of her ex-boyfriend on secrecy during the pregnancy and the actions of her 

sorority sisters reinforcing her denial of the pregnancy caused Appellant to shut down and 

become deeply fearful. Dr. Lewis also noted in her affidavit: 

Birth takes hours. It is a painful and noisy process. Doing it alone, in 

silence, in a shared bathroom speaks to Emile's abject terror, as well 

as to her belief that she had no one she could trust. Anyone might 

have averted this outcome by offering to help. Instead, she was left 

alone. Lewis affidavit, ¶ 15. 

{¶ 8} In the report attached to her affidavit, Lewis further explained while many 

find it impossible to understand how and why a woman can commit the act of infanticide, 

psychiatrists explain there's a profile: “Women who commit neonaticide tend to be 

immature, isolated, worried about the judgment of others on issues ranging from sex to 

abortion to unwed motherhood.” Research reveals women who commit neonaticide, 

including Appellant, receive no prenatal care, suffer from pregnancy denial, make no 

plans for their labor or delivery, and labor alone on toilets without medical care. When the 
Muskingum County, Case No. CT2019-0034 5 

baby arrives denial shatters and panic ensues. The crimes are not carefully planned, but 

rather are “poorly concealed acts of desperation.” 

{¶ 9} Dr. Lewis expressed the loss of the newborn's life is a tragedy for which 

Appellant deserved to be punished, but in her expert opinion, had the existing body of 

research on neonaticide been brought to bear on Appellant's sentence, it would have 

demonstrated substantial grounds to mitigate her individual culpability. 

{¶ 10} The trial court dismissed the petition without a hearing. The court found 

Appellant's argument of ineffective assistance was barred by res judicata, as it could have 

been raised on direct appeal. The court further noted prior to trial Appellant was found 

competent to stand trial, and sane at the time she committed the offense. 

{¶ 11} Appellant appealed and this court found the matter was not barred: 

The affidavit and report of Dr. Clara Lewis submitted with Appellant's 

petition for postconviction relief explained the psychiatric and cultural 

issues surrounding neonaticide far beyond counsel's casual mention 

at the sentencing hearing, and provided information to contextualize 

the same actions which the court used to support the sentence of life 

without possibility of parole. The evidence is directly in contravention 

of the arguments of the State accepted by the judge in imposing the 

harshest sentence available for the offense. We find the evidence 

submitted with Appellant's petition meets the threshold level of 

cogency to defeat a claim of res judicata. Weaver II, supra at ¶ 31 
Muskingum County, Case No. CT2019-0034 6 

{¶ 12} We therefore remanded the matter to the trial court with instructions 

to conduct an evidentiary hearing on Appellant's motion for postconviction relief. 

Weaver II, supra at ¶ 33. 

{¶ 13} The hearing took place over the course of two days beginning on 

April 2, 2019. Dr. Lewis did not testify. Instead, on the first day of the hearing, Dr. 

Diana Lynn Barnes, a psychotherapist specializing in women's reproductive 

health, including perinatal mood and anxiety disorders, testified on behalf of 

Appellant. Dr. Barnes opined Appellant met the criteria for negated pregnancy, a 

term which encompasses both pregnancy denial and pregnancy concealment, and 

that this clinical syndrome led Appellant to commit neonaticide. 

{¶ 14} Dr. Barnes explained the term neonaticide was first coined in 1969, 

and since then a body of research has grown which has indicated what neonaticide 

looks like; symptom presentation, demographic profile, and the type of woman that 

ultimately will end up denying her pregnancy and commit neonaticide. In identifying 

negated pregnancy, an expert in this area looks for indicators including a young 

mother, a lack of criminal record, detachment, the description of the birth process, 

and where the infant is born. In a negated pregnancy, Dr. Barnes explained, the 

infant is almost always delivered into a toilet. 

{¶ 15} According Dr. Barnes, while giving birth, women with this syndrome 

will experience a dissociative state. A dream-like state wherein the woman feels 

she can do nothing to change her situation, and feels as if she is just an observer 

of the events passing before her. Barnes noted several factors indicative of such 

a state in Appellant, specifically the fact that during the birth she suffered deep 
Muskingum County, Case No. CT2019-0034 7 

internal vaginal lacerations and a loss of blood, but was found shortly after the birth 

sitting cross-legged on her bed as if nothing had happened. Additionally Dr. Barnes 

found the video of Appellant's later interrogation striking as it further demonstrated 

her apparent detachment. Dr. Barnes testified that Appellant's history, including 

her background and experiences fit the general profile of a woman at risk for 

negated pregnancy. 

{¶ 16} Before Appellant's trial, Dr. Kristen Haskins, who completed an 

evaluation regarding Appellant's mental state at the time of the offenses 

(Defendant's exhibit 3 at the postconviction relief hearing), characterized 

Appellant's mental state similarly. Dr. Haskins acknowledged there was no formal 

mental illness diagnosis to fit the situation, but stated "there could be some concern 

that such incredible denial of pregnancy and delivery certainly must signal some 

kind of mental illness, and does suggest problems in coping with a difficult situation 

and a lack of coping skills and perhaps a lack of trust in others." Defendant's exhibit 

3 at 16. 

{¶ 17} On the second day of the hearing, the state called several of 

Appellant's sorority sisters and one of her friends. Most had testified at Appellant's 

trial. The state asked each witness how Appellant was treated within the sorority, 

what offers they made to help, and how Appellant reacted. In the same vein, the 

court questioned two of the witnesses regarding their opinion of Dr. Lewis' affidavit 

which theorized that Appellant's immaturity, social isolation, the putative father's 

insistence on secrecy, and the actions of Appellant's sorority sisters reinforcing her 

pregnancy denial caused Appellant to shut down, become fearful, and ultimately 
Muskingum County, Case No. CT2019-0034 8 

deliver the baby alone and in terror. Each testified, however, that Appellant was in 

no way socially isolated and had the full support of her sorority sisters even though 

she denied being pregnant. 

{¶ 18} Before closing arguments, the state moved to strike the testimony of 

Dr. Barnes and exclude her report. The trial court did not rule on the motion, but 

heard closing statements from the parties. Thereafter, the court ruled from the 

bench. The court found for a variety of reasons Dr. Barnes was not credible, and 

therefore the court would not accept her testimony as support for Appellant's 

argument that trial counsel was ineffective for failing to present information on 

neonaticide. The trial court further found that trial counsel brought the issue of 

neonaticide to the court's attention, albeit without "statistics and that sort of thing." 

The trial court therefore denied Appellant's petition. 

{¶ 19} A transcript of the trial court's findings from the bench were deemed 

findings of fact and conclusions of law. It is from these findings of fact and 

conclusions of law that Appellant appeals, raising three assignments of error as 

follow: 

I 

{¶ 20} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED 

EMILE WEAVER'S POSTCONVICTION PETITION AFTER THE HEARING. FIFTH AND 

FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION; ARTICLE I, 

SECTIONS 10 AND 16, OHIO CONSTITUTION POSTCONVICTION PETITION 

HEARING VOL. 11 TR. 269, 277-78, 283-87; APRIL 11, 2019 FINDINGS OF FACT AND 

CONCLUSIONS OF LAW." 
Muskingum County, Case No. CT2019-0034 9 

II 

{¶ 21} "THE TRIAL COURT VIOLATED EMILE WEAVER'S RIGHTS TO DUE 

PROCESS AND A FAIR TRIAL THROUGH JUDICIAL BIAS. FIFTH AND FOURTEENTH 

AMENDMENTS, UNITED STATE CONSTITUTION; ARTICLE I, SECTIONS 10 AND 16, 

OHIO CONSTITUTION." 

III 

{¶ 22} "THE TRIAL COURT VIOLATED EMILE WEAVER'S RIGHTS TO DUE 

PROCESS AND A FAIR TRIAL WHEN IT FAILED TO PROVIDE A MEANINGFUL

OPPORTUNITY TO BE HEARD. FIFTH AND FOURTEENTH AMENDMENTS, UNITED 

STATES CONSTITUTION; ARTICLE I, SECTIONS 10 AND 16, OHIO CONSTITUTION. 

TRIAL TR. 111, 115, 160." 

II, III 

{¶ 23} For ease of discussion, we address Appellant's assignments of error out of 

order. 

{¶ 24} Before we can address the denial of Appellant's motion for postconviction 

relief, we must address Appellant's second and third assignments of error which argue 

the trial court judge exhibited bias against her during the postconviction relief hearing 

which denied her due process. 

{¶ 25} Recently, in State v. Piatt, --N.E.2d--, 2020-Ohio-1177 at ¶ 41 the Ninth 

District Court of Appeals stated: 

The issue of whether a conviction must be vacated due to bias or 

prejudice on the part of a trial judge is one that lies exclusively within 
Muskingum County, Case No. CT2019-0034 10 

the jurisdiction of the Chief Justice of the Ohio Supreme Court. See 

State v. Polke, 9th Dist. Medina No. 18CA0061-M, 2019-Ohio-904, 

2019 WL 1264974, ¶ 7; R.C. 2701.031. This Court lacks authority “to 

void a trial court's judgment on the basis of personal bias or prejudice 

on the part of the trial judge * * *.” State v. Hunter, 151 Ohio App.3d 

276, 2002-Ohio-7326, 783 N.E.2d 991, ¶ 18 (9th Dist.), citing Beer 

v. Griffith, 54 Ohio St.2d 440, 441-442, 377 N.E.2d 775 (1978). 

Nevertheless, we may determine whether conduct on the part of a

trial judge denied a criminal defendant due process of law. See, e.g., 

State v. Powell, 9th Dist. Lorain No. 12CA010284, 2017-Ohio-4030, 

2017 WL 2347171, ¶ 8-13. “A judge is presumed to follow the law

and not to be biased, and the appearance of bias or prejudice must 

be compelling to overcome these presumptions.” In re 

Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-5489, 

798 N.E.2d 23, ¶ 5. 

{¶ 26} We therefore "have the authority to review a claim of judicial bias as it 

impacts the outcome of the case." State v. Loudermilk, 2017-Ohio-7378, 96 N.E.3d 1037 

(1st Dist) ¶19. Judicial bias involves “a hostile feeling or spirit of ill will or undue friendship 

or favoritism toward one of the litigants or his attorney, with the formation of a fixed 

anticipatory judgment on the part of the judge, as contradistinguished from an open state 

of mind which will be governed by the law and the facts.” State ex rel. Pratt v. Weygandt, 

164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph four of the syllabus. 
Muskingum County, Case No. CT2019-0034 11 

{¶ 27} The right to procedural due process is found in the Fourteenth Amendment 

to the United States Constitution and Section 16, Article I of the Ohio Constitution. “For 

all its consequence, ‘due process' has never been, and perhaps can never be, precisely 

defined.” Lassiter v. Dept. of Social Servs. of Durham Cty., North Carolina, 452 U.S. 18, 

24, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Instead, "due process is a flexible concept 

that varies depending on the importance attached to the interest at stake and the 

particular circumstances under which the deprivation may occur." State v. Aalim, 150 

Ohio St.3d 463, 2016-Ohio-8278, 83 N.E.3d 862, ¶ 13, citing Walters v. Natl. Assn. of 

Radiation Survivors, 473 U.S. 305, 320, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985). “Applying 

the Due Process Clause is therefore an uncertain enterprise which must discover what 

‘fundamental fairness' consists of in a particular situation by first considering any relevant 

precedents and then by assessing the several interests that are at stake.” Id., citing 

Lassiter at 24-25, 101 S.Ct. 2153. 

{¶ 28} In the case sub judice, Appellant argues the trial court judge was biased 

because he unreasonably discredited viable mitigation evidence. As proof of this bias 

Appellant cites 1) the fact that the trial court granted the state's motion for reports 

authored by Dr. Barnes in any previous cases even though defense counsel argued some 

of the reports were in regard to juveniles, had never been used in court, or were from 

other states; 2) permitting Appellant's sorority sisters to testify about the impact this case 

had on them when the purpose of the hearing had nothing to do with the impact of the 

case on the sorority sisters; 3) permitting irrelevant questioning of the sorority sisters by 

the state regarding "collective collusion" but then sustaining the state's objection when 

defense counsel attempted to explore the witness's understanding of the term; 4) the 
Muskingum County, Case No. CT2019-0034 12 

judge's decision to read the sorority sisters portions of our opinion in Weaver II and then 

ask each witness if they felt this court was holding them personally responsible for 

Appellant's actions; 5) appearing to have a bias about mothers and fetal care during 

Appellant's sentencing hearing and during the postconviction relief hearing; 6) insinuating 

the defense team had coached Appellant's comments to Dr. Barnes; 7) mentioning a case 

in the same jurisdiction involving a similar fact pattern wherein the defendant received a 

lighter sentence, and 8) mentioning that Appellant's first trial counsel withdrew and asking 

current counsel why Appellant had not taken the state's plea offer. 

{¶ 29} Appellant argues that due to the forgoing points, the trial court's 

misunderstanding of the facts, circumstances, and law in this case, Appellant did not 

receive a meaningful opportunity to be heard. 

{¶ 30} We begin our analysis by noting most of Appellant's eight arguments are 

based on speculation. Appellant first speculates the trial judge possessed a bias 

regarding mothers and fetal care, pointing to comments made by the judge at sentencing 

and again during the post-conviction relief hearing. Appellant specifically cites to the 

sentencing transcript at 15-16, and the post-conviction relief hearing (Hrg) at 287. The 

sentencing transcript has not been made part of the record of this appeal. We therefore 

presume the regularity of that hearing. Knapp v. Edwards Laboratories, 61 Ohio St.2d 

197, 400 N.E.2d 384 (1980); State v. Batstra, 5th Dist. Muskingum No. CT2016-0052, 

2017-Ohio-2665, ¶ 12. Upon our examination of the record of the post-conviction relief 

hearing we find the judge was commenting on the evidence presented. 

{¶ 31} Appellant also speculates the judge believed Appellant was coached by 

counsel as to what to say to Dr. Barnes. Again the record does not support Appellant's 
Muskingum County, Case No. CT2019-0034 13 

suspicion. Rather the record reflects the judge noted Appellant's story was not consistent 

over time, and that two other doctors had interviewed Appellant before Dr. Barnes. The 

trial court noted, due to these facts, Dr. Barnes was not dealing with a "clean slate" by the 

time she interviewed Appellant. Hrg. 193-194. The court then commented that Appellant 

is intelligent and could have figured out the path her counsel was pursuing. Hrg. 198-199. 

The trial court may certainly consider the bias or interest of any witness, including the 

defendant. 

{¶ 32} Likewise, Appellant speculates that by mentioning State v. Bryant, a case 

heard in the same county with a similar fact pattern and yet with a very different resulting 

sentence, the judge was indicating he would not be swayed as was the judge in Bryant. 

Appellant argues the judge "appeared to be punishing [Appellant] with the harshest 

punishment to make up for what he viewed as an injustice with Bryant." Appellant's brief 

at 20. There is simply no evidence on the record to support Appellant's speculation that 

the trial court was exacting some type of vengeance upon Appellant to make up for a 

lenient sentence imposed upon the defendant in Bryant. Rather, the record reflects the 

judge was seeking to differentiate the instant matter from Bryant by stating that while 

Bryant involved lighter sentence, it was imposed on "a different charge." Hrg. 286. 

{¶ 33} Next, as to the trial court's decision granting the state's motion for any 

reports prepared for other cases by Dr. Barnes, Appellant cites two cases in support of 

its argument that the trial court's decision demonstrated bias which deprived her of due 

process. The first, State v. Jiminez, 2d Dist. Montgomery No. CT2017-0036, 2018-Ohio1601, involved the requested disclosure by the defense of a rape victim's medical records. 

The records did not pertain to the charge of rape, but rather were records involving the 
Muskingum County, Case No. CT2019-0034 14 

victim's alleged bipolar disorder which the defense wished to use in order to discredit the 

victim's report of rape. The second, State v. Kopchak, 5th Dist. Muskingum No. CT2017-

0036, 2018-Ohio-1136, involved the state's use of the report of a defense-hired expert in 

its case-in-chief over the objection of the defense and when the defense had no intention 

to call the expert at trial. Neither of these cases are on all fours with the facts of the present 

matter, and neither raised a bias allegation. 

{¶ 34} Here, the state in effect withdrew its motion for copies of any previous 

reports discussing neonaticide and authored by Barnes. After counsel for Appellant spent 

some time attempting to locate any such reports without success and reported the same 

to the trial court, the state indicated it was satisfied. Hrg. 170. Thus Appellant was 

ultimately not required to produce the reports. Further, there is no indication that the state 

would have ultimately received any such reports, as it appears from the state's motion 

that the trial court was to first conduct an in-camera review of the documents. Moreover, 

the state's motion indicated it had no objection to the reports being redacted to prevent 

disclosure of any protected information. Based upon these facts, we cannot say that the 

trial court's decision to grant the state's motion, standing alone, is evidence of bias. 

{¶ 35} Next, Appellant argues the trial court demonstrated bias by asking her 

current counsel why Appellant had not accepted the state's plea offer, and by commenting 

on her first trial counsel's reasons for withdrawing which included his belief it was in 

Appellant's best interest to enter a guilty plea. Having reviewed the portions of the 

transcript cited by Appellant, we find we may only speculate as to the purpose behind the 

comments and Appellant does not explain why these comments demonstrate bias. 
Muskingum County, Case No. CT2019-0034 15 

Certainly such a conversation would be inappropriate in front of a jury, however, that was 

not the case here. 

{¶ 36} We further note these comments came amidst the mention of the Bryant

case, and of text messages Appellant sent the alleged father after she disposed of the 

body of her newborn indicating “no more baby” and the matter had been “taken care of.” 

Hrg. 273-281, state’s exhibit P68. While Appellant speculates the comments indicate the 

trial judge became biased against her after her first trial counsel withdrew as counsel, it 

is also entirely possible the judge was commenting on his sentence being appropriate 

after he presided over the trial, heard the facts and observed the evidence, and Appellant 

therefore having missed an opportunity for a lesser sentence when she rejected the 

state's plea offer. 

{¶ 37} Regardless, “opinions formed by the judge on the basis of facts introduced 

or events occurring in the course of the current proceedings, or of prior proceedings, do 

not constitute a basis for a bias or partiality motion unless they display a deep-seated 

favoritism or antagonism that would make fair judgment impossible. Thus, judicial 

remarks during the course of a trial that are critical or disapproving of, or even hostile to, 

counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” 

Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). On

the other hand, “[t]hey may do so if they reveal an opinion that derives from an 

extrajudicial source; and they will do so if they reveal such a high degree of favoritism or 

antagonism as to make fair judgment impossible.” Id. emphasis original. We do not find 

these comments display a high degree of favoritism or antagonism, but rather are 

opinions formed during the course of current and prior proceedings. 
Muskingum County, Case No. CT2019-0034 16 

{¶ 38} We next address Appellant's argument regarding the trial court permitting 

the state to call Appellant's sorority sisters and elicit testimony about how this matter has 

impacted their lives. We agree this questioning and testimony was not appropriate and 

wholly irrelevant. However, the same witnesses had testified at trial and the trial judge 

had heard the same testimony during trial. Thus, although not relevant, we find the 

testimony harmless, and not indicative of bias which deprived appellant due process. 

{¶ 39} We further agree the trial court's act of reading portions of our opinion in 

Weaver II to two defense witnesses and asking their opinion of the same was both 

inappropriate and not relevant to the proceeding. The same is true for the questions to 

the sorority sisters regarding their understanding of the clinical term "collective collusion." 

These errors, however, appear to stem from a misunderstanding of our directive on 

remand rather than favoritism or antagonism. 

{¶ 40} In conclusion, while the hearing was contentious, we do not find evidence 

in the record which would overcome the strong presumption that the trial court was free 

of bias or prejudice against Appellant or that establishes the trial court's conduct denied 

Appellant her right to due process. Appellant was provided a hearing, and presented 

evidence which the trial court listened to. Although Appellant argues the trial court 

interrupted her counsel and peppered counsel with questions during closing statements, 

again, this was a hearing to the bench and not a jury trial. Moreover, counsel was given 

an opportunity to address the court a second time after the state's closing remarks and 

declined to do so. Hrg. 283. 

{¶ 41} The second and third assignments of error are overruled.

I 
Muskingum County, Case No. CT2019-0034 17 

{¶ 42} In her first assignment of error, Appellant argues the trial court abused its 

discretion when it denied her motion for postconviction relief. We disagree. 

{¶ 43} Our standard of review on a determination on postconviction relief is abuse 

of discretion. State v. Williams, 165 Ohio App.3d 594, 2006-Ohio-617, 847 N.E.2d 495 

(11th Dist.). In order to find an abuse of discretion, we must find the trial court's decision 

was unreasonable, arbitrary or unconscionable and not merely an error of law or 

judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). 

{¶ 44} Under this assignment of error, Appellant makes several sub-arguments. 

The first two include arguments addressing the ineffectiveness of trial counsel for failing 

to bring the clinical syndrome of neonatocide to the attention of the trial court during 

sentencing in order to mitigate Appellant's sentence and the trial court's failure to cite a 

standard and proper analysis pursuant to Stickland v. Washington in its findings of fact 

and conclusions of law following the hearing. We find, however, any ineffectiveness of 

trial counsel was cured by the postconviction relief hearing conducted on remand from 

Weaver II. Further, while a proper analysis is best practice, the trial court clearly found 

counsel for Appellant did not render ineffective assistance which prejudiced Appellant. 

We therefore overrule Appellant's arguments pertaining to ineffective assistance of trial 

counsel. 

{¶ 45} Appellant next argues the trial court abused its discretion in denying her 

motion for postconviction relief because its decision is not supported by competent and 

credible evidence. Within this argument Appellant makes the same bias arguments raised 

in her second and third assignments of error which we have addressed above and will 

not readdress here. Just as we found no bias impacting the outcome of this matter, we 
Muskingum County, Case No. CT2019-0034 18 

find the same speculative arguments do not demonstrate the trial court abused its 

discretion in denying Appellant's motion for post-conviction relief. 

{¶ 46} Appellant further faults the trial court for failing to find Dr. Barnes credible, 

for appearing to believe it was bound by law to impose the harshest available sentence 

on Appellant, and appearing to have forgotten what Appellant had been charged with and 

convicted of. 

{¶ 47} While Appellant challenges the trial court's failure to find Dr. Barnes 

credible, it is well established that “the weight to be given the evidence and the credibility 

of the witnesses are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 

230, 227 N.E.2d 212, 39 Ohio Op.2d 366 (1967) paragraph one of the syllabus. Appellant 

appears to ask this court to make a credibility call as to Barnes' testimony. However, it is 

well established that we may not substitute our own credibility determination for that of 

the trial court. State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049, 9 Ohio Op.3d 152 

(1978). 

{¶ 48} As for Appellant's remaining arguments, while it does appear accurate the 

trial court's memory of Appellant's charges and the jury's findings was faulty, Appellant 

has not raised that fact as error. Further, while we were not provided with a transcript of 

the original sentencing hearing, our review of motions made by Appellant and the 

sentencing judgment entry indicate the trial court was aware of the available sentences it 

was permitted to impose at the time Appellant was sentenced. Finally, the trial court's 

memory of the charges and available sentences had no bearing on the matter as the trial 

court found trial counsel was not ineffective for failing to present detailed information on 

neonaticide. We therefore reject Appellant's arguments in that vein. 
Muskingum County, Case No. CT2019-0034 19 

{¶ 49} The trial court acted within its discretion in finding the testimony of Barnes 

incredible. Further the court's decision finding trial counsel was not ineffective for failing 

to raise the issue of neonaticide in detail was not unreasonable, arbitrary, or 

unconscionable. We therefore overrule the first assignment of error. 

{¶ 50} The judgment of the Muskingum County Court of Common Pleas is 

affirmed. 

By Wise, Earle, J. 

Hoffman, P.J. and 

Delaney, J. concur. 

EEW/rw