[Cite as State v. Tucker, 2013-Ohio-2527.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 98685

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

CHRISTOPHER TUCKER

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-437731 

 BEFORE: Blackmon, J., Stewart, A.J., and Kilbane, J. 

 RELEASED AND JOURNALIZED: June 20, 2013
ATTORNEYS FOR APPELLANT 

Robert L. Tobik 

Chief Public Defender

Erika B. Cunliffe 

Assistant Public Defender 

310 Lakeside Avenue 

Suite 200 

Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Katherine Mullin 

Assistant County Prosecutor 

8th Floor Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
PATRICIA ANN BLACKMON, J.: 

{¶1} Appellant Christopher Tucker appeals the trial court’s denial of his petition 

for postconviction relief and motion for new trial and assigns the following errors for our 

review: 

I. The trial court violated Mr. Tucker’s constitutional right to due 

process and violated this court’s order on remand by significantly 

narrowing the scope of his evidentiary hearing. 

II. The trial court violated Mr. Tucker’s right to due process when it 

denied relief and a new trial notwithstanding the presentation of new 

evidence which provided credible support for his longstanding alibi.

{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s 

decision. The apposite facts follow. 

Facts

{¶3} Tucker was convicted of aggravated murder for the shooting death of 

Timothy Austin on May 22, 2003, outside Whatley’s Lounge in Cleveland, Ohio. At trial, 

Nikia Beal and Joseph Fussell were the only witnesses to identify Tucker as the shooter. 

Beal was with Austin at the bar. She testified that she noticed Tucker inside the bar 

because he had been staring at her. When she and Austin walked outside the bar she 

heard gunshots and saw Austin fall to the ground. She stated she was looking at Tucker 

while he shot Austin and that he did not stop shooting until he was out of bullets. 

According to Beal, the area of the shooting was well lit by street lights. On her way 

home, someone told her the shooter’s name was Christopher Tucker. She searched his 

name on the internet and found a photograph that matched the man she saw shoot Austin. 
She did not immediately go to police out of fear of retaliation. About a month after the 

shooting the police came to her apartment to question her. 

{¶4} Fussell testified at trial that he had attended high school with Tucker. He 

saw Tucker at the bar and gave him a hug. Fussell then left to buy a cigar from the gas 

station across the street. He heard gunshots and saw Tucker shooting Austin. Fussell 

waited to contact officers until the next day out of fear. Although he knew Tucker, he 

could not recall his name. He identified Tucker after looking at photographs in a mug 

shot book. 

{¶5} At trial, Tucker maintained he was inside the bar during the shooting and 

presented witnesses, who were also his friends, in support of his alibi. One of his friends, 

Lahondra Hill, originally told police that Tucker was outside when the shootings occurred 

but later changed his testimony at trial. Tucker’s other friend, Stefan King, did not 

provide police with a statement. However, he testified at trial that Tucker was inside the 

bar. Tucker admitted that he knew Austin and that Austin had carjacked him in 1996 and 

had never apologized. 

{¶6} Austin was in prison from 1996 until a month prior to the shooting. Tucker 

had just been released from prison two days prior to the shooting. Therefore, Tucker had 

seen Austin for the first time since the carjacking at Whatley’s bar. 

{¶7} The jury found Tucker guilty of aggravated murder and a firearm 

specification. The trial court sentenced him to three years for the firearm specification to 

be served consecutive to life in prison for the aggravated murder.1

 Tucker filed an appeal, 

 1

Tucker also entered a plea of no contest to a charge of having a weapon while 
and we affirmed his conviction. State v. Tucker, 8th Dist. No. 83419, 2004-Ohio-5380 

(“Tucker I”). 

{¶8} Thereafter, Tucker filed a petition for postconviction relief on April 24, 

2004, arguing, among other things, that he was told that Nikia Beal had stated after the 

trial that she did not see the shooter because she ran once she heard the gunshots. He 

contended he could provide affidavits of people attesting to Beal’s recantation; however, 

he failed to attach any evidence regarding her recantation to the petition. 

{¶9} Tucker also filed a motion for a new trial on August 2, 2004, in which he 

argued that a new trial was warranted because Joseph Fussell had recanted. Attached to 

his motion was an affidavit from Fussell simply stating, “what I said I saw last year in May 

at Whatley’s Bar is not what I really saw. I was mistaken. It was not Christopher 

Tucker.”2

{¶10} The trial court concluded that Tucker’s petition for postconviction relief was 

untimely and that the recantation of one witness when two witnesses identified Tucker as 

the killer was insufficient to grant a new trial. Instead of immediately filing an appeal to 

this court, Tucker waited until June 2, 2006, to file a motion for a delayed appeal, which 

we denied. State v. Tucker, 8th Dist. No. 88254 (July 6, 2006) (“Tucker II”). 

 

under disability and was sentenced to six months for the charge. 

2 The trial court granted a hearing regarding Fussell’s recantation only. 

However, the judge that granted the hearing was replaced due to a lost election. 

The state filed a motion for reconsideration with the successor judge regarding the 

granting of the hearing, which the trial court granted. 
{¶11} On August 2, 2007, Tucker filed a second petition for postconviction relief 

and a motion for a new trial. In support of these motions, he presented an affidavit from 

D.R.,3

 who stated that Tucker was inside the bar at the time the shooting took place 

outside the bar. D.R. stated that she did not know Tucker or his family, but was a neutral 

observer. The trial court denied the motions without a hearing. Tucker appealed the trial 

court’s denial of the motions. This court agreed that the trial court should have conducted 

a hearing regarding D.R.’s affidavit, but also held that Tucker’s attempt to appeal the 

denial of his first petition for postconviction relief and motion for new trial were barred by 

res judicata because we had denied his delayed appeal in Tucker II. State v. Tucker, 8th 

Dist. No. 90799, 2008-Ohio-5748 (“Tucker III”). 

{¶12} Prior to the court conducting the hearing on remand, Tucker again attempted 

to appeal from the trial court’s denial of his first petition for postconviction relief and 

motion for a new trial that he attempted to appeal in Tucker II. He argued his appeal was 

timely filed because he was never served with notice of the trial court’s judgment. This 

court agreed and considered Tucker’s appeal. 

{¶13} We held that the trial court correctly denied Tucker’s first petition because he 

failed to attach an affidavit in support of his contention that Beal had stated that she could 

not identify the shooter. We also held the trial court did not err by denying Tucker’s 

motion for a new trial based on Fussell’s recantation because it was untimely filed. We 

also held that because of Beal’s testimony identifying Tucker as the shooter, Fussell’s 

 3

In court proceedings below, this witness asked to not be publicly identified; 

therefore, in accordance with these wishes, we identify the witness by initials. 
affidavit would not have changed the result of the trial. We remanded the matter for the 

trial court to conduct the hearing ordered in Tucker III. State v. Tucker, 8th Dist. No. 

95556, 2011-Ohio-4092 (“Tucker IV”). 

{¶14} Prior to the court conducting the evidentiary hearing, and prior to this court’s 

ruling in Tucker IV, Tucker filed several motions in an attempt to expand the scope of the 

evidence to be considered at the hearing to include evidence that corroborated D.R.’s 

affidavit. He attempted to include affidavits by John Blue, Arthur Storey, Khaalis Miller, 

and Joe McLemore, who he contended were four new witnesses that either placed Tucker 

inside the bar at the time of the shooting, or saw someone other than Tucker commit the 

shooting. He also attempted to include a more expanded affidavit by Joseph Fussell, a 

polygraph test Tucker successfully passed seven years after his conviction, and the report 

of an expert regarding the reliability of Beal’s eyewitness testimony. 

{¶15} The trial court initially allowed some expanded evidence in, but stated that 

the scope may change after the appellate court issued its decision in Tucker IV. After 

Tucker IV, the trial court limited the scope of the hearing to “Petitioner’s motion for 

postconviction relief and/or motion for new trial filed August 2, 2007, only.” Journal 

Entry, April 13, 2012 (Emphasis sic.) The court contended Tucker’s motion for leave to 

supplement the motion for new trial, amendment or supplement to motion for leave to file 

supplement to motion for new trial, and petitioner’s prehearing submission and response 

were “barred by res judicata, untimely, and the alleged new evidence fails to meet the 

standard in Criminal Rule 33(A)(6) as well as the requirements held by the Supreme Court 
of Ohio in State v. Petro (1947), 148 Ohio St. 505, 76 N.E.2d 370.” Journal Entry, April 

13, 2012. 

{¶16} On April 16, 2012, the trial court conducted the evidentiary hearing at which 

D.R. testified in support of her affidavit. According to D.R., she contacted authorities in 

response to a flier she saw posted with Tucker’s photograph in January 2007. The flier 

was posted by Tucker’s family, who requested information from anyone that was at 

Whatley’s Lounge the night of the murder and contended Tucker was a wrongly convicted 

man. D.R. kept the flyer for about a month prior to contacting Tucker’s attorney listed on 

the flier. D.R. testified that she did not know Tucker or his family and that she only 

contacted Tucker’s attorney because she felt it was the right thing to do. 

{¶17} D.R. recognized Tucker from the photo because she was at Whatley’s Bar the 

night in question. She claimed that Tucker was sitting near her playing a video game that 

she wanted to play. At one point, Tucker got up and she asked him if he was finished 

with the game. He responded he was not finished but was going to the juke box. She 

jokingly told him to play a song for her. According to D.R., as Tucker was returning from 

the juke box, shots were fired outside the bar. She stated that the people inside the bar 

rushed outside. She recalled Tucker was in front of her when exiting the bar because he 

was wearing a jacket with a Chief Wahoo logo on the back. 

{¶18} The trial court concluded that D.R.’s testimony was merely cumulative 

evidence because Tucker had two alibi witnesses that testified that D.R. was inside the bar 

at the time of the shooting. The court also found problems with D.R.’s identification of 

Tucker. The court noted D.R. had only spoken with Tucker for a “split second” and had 
stated that Tucker was wearing a Chief Wahoo jacket, when the evidence indicated he was 

wearing a blue Phat Pharm jacket. In her affidavit, D.R. also stated that she saw Tucker 

get into a car with his friends and leave, while at the hearing she stated she saw Tucker get 

into his car and “assumed” he left. 

{¶19} Finally, the court concluded that D.R.’s identification was suspect because 

although she identified Tucker from the flier photograph, she could not identify Tucker 

from a more recent photograph that she referenced in her affidavit. The trial court, 

therefore, denied Tucker’s petition to set aside or vacate judgment of conviction and 

motion for new trial. 

Scope of Evidentiary Hearing

{¶20} In his first assigned error, Tucker argues that the trial court erred by limiting 

the evidentiary hearing to D.R.’s testimony. Tucker contends our remand was more 

expansive in Tucker III because we found that D.R.’s testimony was corroborated by the 

“arguable” recantation of the two material witnesses at trial, Beal and Fussell; therefore, 

the trial court should have considered evidence that corroborated D.R.’s affidavit. 

{¶21} When the trial court considered the scope of the evidentiary hearing, it could 

not ignore this court’s decision in Tucker IV. Although Tucker III relied on the fact that 

the only two eyewitnesses to the crime “arguably” recanted, Tucker IV completely 

removed any reliance by the trial court on the possible recantation of the two witnesses 

when considering D.R.’s affidavit. Thus, although this court considered Beal’s and 

Fussell’s recantations when finding the court erred by not conducting an evidentiary 
hearing regarding D.R.’s affidavit, these considerations were eliminated by our decision in 

Tucker IV. 

{¶22} As we stated, Tucker’s counsel conducted extensive discovery after the 

remand in Tucker III. He recanvassed the neighborhood of the bar almost eight years 

after the shooting and re-interviewed witnesses; he took a polygraph test; and obtained an 

expert witness to refute Beal’s testimony. The discovery broadened the scope of the 

evidentiary hearing to include all issues as to Tucker’s innocence and was not limited to 

D.R.’s affidavit. 

{¶23} Moreover, as the trial court held, the motions containing the additional 

evidence were untimely filed and barred by res judicata. His motion for a new trial and 

petition for postconviction relief based on the affidavit of John Blue were filed on 

November 18, 2009, six years after Tucker’s conviction. The supplemental motions to 

these motions were filed several months prior to the hearing, almost nine years after his 

conviction. 

{¶24} Pursuant to R.C. 2953.23(A), a court may not entertain an untimely petition 

unless defendant initially demonstrates either (1) he was unavoidably prevented from 

discovering facts necessary for the claim for relief, or (2) the United States Supreme Court 

recognized a new federal or state right that applies retroactively to persons in defendant’s 

situation. R.C. 2953.23(A)(1)(a). 

{¶25} Likewise, Crim.R. 33(B) provides that motions for a new trial on account of 

newly-discovered evidence shall be filed within one hundred twenty days after the day 

upon which the verdict was rendered or from the trial court’s decision unless “it is made to 
appear by clear and convincing proof that the defendant was unavoidably prevented from 

the discovery of the evidence upon which he must rely.” Thus, an untimely motion for 

new trial based on newly discovered evidence must show, by clear and convincing proof, 

that the defendant was “unavoidably prevented” from discovering the new evidence. 

State v. Fortson, 8th Dist. No. 82545, 2003-Ohio-5387, ¶ 10. Thus, both rules required 

Tucker to show he was unavoidably prevented from discovering the following evidence: 

Joseph Fussell

{¶26} Tucker attempted to present a more detailed affidavit by Fussell recanting his 

testimony. However, Tucker had already attempted to raise Fussell’s recantation in his 

prior petition and motion for new trial, which this court in Tucker IV held was untimely 

filed. Tucker’s refiling of Fussell’s affidavit does not rectify the timeliness problem 

because Tucker has failed to show he was unavoidably prevented from discovering the 

facts in Fussell’s new affidavit. Moreover, because Fussell’s recantation had been raised 

and considered in Tucker IV, res judicata bars Tucker’s attempt to again raise it. 

Keysha Carter and Khaalis Miller

{¶27} Tucker submitted the affidavits of his girlfriend, Keysha Carter and Fussell’s 

cousin, Khaalis Miller, in an attempt to bolster Fussell’s affidavit. However, as we stated, 

because we have already determined that Fussell’s affidavit was untimely, the trial court 

correctly excluded this testimony that was barred by res judicata. Moreover, Fussell 

testified at trial that he was with his cousin Khaalis Miller at the time of the shooting; 

therefore, counsel could have called Miller for questioning at trial.

John Blue
{¶28} Tucker sought to present the affidavit of John Blue, a known drug addict 

with a lengthy felony record. In his affidavit, Blue stated he did not know the victim or 

Tucker. He averred that he saw two men shoot the victim. 

{¶29} Blue was a witness that Tucker was aware of at the time of trial as indicated 

by the fact his attorney asked Detective Marche about Blue. Blue was also listed on the 

detective’s area canvass list as one of the witnesses. The list contains Blue’s address and 

social security number and states that Blue told detectives, “he just heard several shots and 

a vehicle screech off.” At trial, Detective Marche testified he provided a copy of the 

area canvass list to defense counsel. Therefore, Tucker has failed to show he was 

unavoidably prevented from discovering the facts contained in Blue’s affidavit. Tucker’s 

delay in obtaining an affidavit from a known possible witness does not provide grounds 

that he was unavoidably prevented from obtaining the evidence. State v. Muntaser, 8th 

Dist. No. 84951, 2005-Ohio-130. 

Arthur Storey

{¶30} Tucker sought to present the affidavit by Arthur Storey, who was an inmate 

with Tucker. Storey stated that he was at the bar that night to conduct a drug deal. He 

said he saw a “dark-skinned man pulled out a black gun. * * * He was about 6’ 3”/6’4” 

heavy set with corn rows (braids) with a black hoodie sweat shirt.” He claimed the man 

was with a shorter man, with dark skin, a beard, and braids. He stated the two men were 

arguing with a third man. When he saw the gun, he ran around the corner and heard 

gunshots seconds later. He stated he knew Tucker, and none of the men he saw was 
Tucker. He claimed he did not give a statement to police the night of the murder because 

he was in possession of drugs. 

{¶31} The court did not err in discounting Storey’s affidavit because it lacks 

credibility. Storey admitted he was approached by Tucker while in prison to provide the 

affidavit. Moreover, the affidavit was obtained one day after this court decided in Tucker

IV that Fussell’s recantation could not be considered. See State v. Smith, 2d Dist. No. 

23945, 2011-Ohio-2189, ¶ 20-21 (filing of affidavit 22 days after Ohio Supreme Court 

affirmed conviction is suspiciously timed because it was very unlikely the defendant 

would find new evidence shortly after the Supreme Court affirmed the conviction.) 

{¶32} Moreover, to prevail on a motion for new trial based upon newly discovered 

evidence, a defendant must show that the new evidence: (1) discloses a strong probability 

that the result of the trial would be different if a new trial were granted; (2) has been 

discovered since the trial; (3) is such as could not have been discovered before the trial 

through the exercise of due diligence; (4) is material to the issues; (5) is not merely 

cumulative to former evidence; and (6) does not merely impeach or contradict the former 

evidence. State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947). Here, Storey admitted 

that he did not actually see the shooting because he ran around the corner when he saw a 

gun. Also, because Beal testified that she saw Tucker shoot Austin, Storey’s affidavit 

merely contradicts Beal’s testimony. 

Joseph McLemore

{¶33} Tucker sought to present the affidavit of attorney Paul Kuzmins, who was 

assigned to represent Tucker at the evidentiary hearing. According to attorney Kuzmins’s 
affidavit, he discovered McLemore while canvassing the neighborhood for witnesses prior 

to the April 2012 hearing. Joseph McLemore told him (1) he was the bartender the night 

of the murder; (2) he witnessed the shooting; (3) saw the eventual shooter leave the bar 

and through the bar window, saw him walk to a car across the street to retrieve something 

from the trunk; (4) saw the man return to the front of the bar and shoot Austin; (5) that he 

was taken to police station where he identified another man as the shooter from a mug 

book; and, (6) that he did not personally know the shooter but described him as 

“brown-skinned” and taller than the victim. 

{¶34} In his motion to admit McLemore’s affidavit, Tucker maintained that the 

state’s failure to reveal exonerating evidence violated the dictates of Brady v. Maryland, 

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We disagree a Brady violation 

occurred. A Brady violation involves the post-trial discovery of information that was 

known to the prosecution, but unknown to the defense. State v. Wickline, 50 Ohio St.3d 

114, 116, 552 N.E.2d 913 (1990), citing United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 

2392, 49 L.Ed.2d 342 (1976). In Wickline, the alleged exculpatory records were 

presented during the trial; therefore, no Brady violation occurred. Wickline at 116. 

{¶35} Likewise, here Detective Marche testified at trial that he spoke to the 

bartender, Joseph “MacLimore.”4

 According to the detective, the bartender was very 

reluctant to say anything, which was the case with all the witnesses who the detective 

surmised were afraid of retaliation. The detective showed the bartender photographs of 

 4

The spelling is different than how attorney Kuzmins spelled the name, but 

there is no doubt it was the same person given the close spelling and the fact 

McLemore was the bartender that night.
both Tucker and Austin, and McLemore only said that he saw both of the men in the bar 

but was not aware of when they left. The detective asked him about “everybody that was 

in the bar” and received no useful answers. The canvass list also stated that McLemore 

only told the canvassing officer that he heard four shots.5

 Moreover, this canvass list was 

provided to defense counsel prior to trial. Thus, because counsel was aware of 

McLemore both before and during trial, the state did not commit a Brady violation. 

Counsel’s awareness of McLemore as a witness also supports the trial court’s refusal to 

consider evidence that could have been obtained prior to the trial with due diligence. 

{¶36} Additionally, attorney Kuzmins’s affidavit consists of hearsay because 

suspiciously, Tucker failed to provide an affidavit from McLemore. His failure to 

provide an affidavit indicates McLemore may not have been truthful with attorney 

Kuzmins. State v. Calhoun, 86 Ohio St.3d 279, 285, 1999-Ohio-102, 714 N.E.2d 905 

(one of the considerations in granting postconviction relief is whether the affidavit relies 

upon hearsay). 

Polygraph Test

{¶37} Tucker also attempted to submit the results of his polygraph test taken over 

seven years after the murder occurred. In Ohio, the results of polygraph examinations are 

generally inadmissible as evidence unless all parties so stipulate. See State v. Souel, 53 

Ohio St.2d 123, 372 N.E.2d 1318 (1978), syllabus; State v. Davis, 62 Ohio St.3d 326, 341, 

581 N.E.2d 1362 (1991). Here, there is no joint stipulation. More importantly, however, 

 5

McLemore’s name is spelled differently in the canvass list. He is listed as 

“Joe McLemory,” which appears to be the phonetic spelling of his name. 
is the fact that Tucker has failed to show that he was prevented from taking a polygraph 

prior to trial. Thus, he has failed to demonstrate he was unavoidably prevented from 

discovering this information. 

Professor Maria S. Aragoza, Ph.D.

{¶38} Lastly, Tucker attempted to introduce the expert opinion of Professor 

Aragoza, who stated that in her opinion, Nikia Beal’s memory was tainted. Tucker has 

failed to demonstrate that he was unavoidably prevented from the discovery of this 

evidence prior to trial. 

{¶39} Accordingly, we conclude the trial court did not err by refusing to consider 

the above additional evidence. Allowing such evidence would have impermissibly 

broadened the scope of the hearing to the consideration of evidence that was available with 

due diligence at trial. Tucker’s first assigned error is overruled. 

Denial of Motion for a New Trial

{¶40} In his second assigned error, Tucker argues the trial court erred by denying 

his 2007 petition for postconviction relief and motion for a new trial because even if 

D.R.’s testimony was considered in isolation, she was a credible, neutral witness. 

{¶41} As we stated above, the decision to grant or deny a motion for a new trial or 

petition for postconviction relief on the basis of newly discovered evidence is within the 

sound discretion of the trial court and, absent an abuse of discretion, that decision will not 

be disturbed. Also, once the trial court conducts an evidentiary hearing relative to an 

appellant’s postconviction petition, a reviewing court should not overrule its findings if 

they are supported by competent and credible evidence. State v. Gondor, 112 Ohio St.3d 
377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58, accord State v. White, 118 Ohio St.3d 12, 

2008-Ohio-1623, 885 N.E.2d 905, ¶ 45; State v. Mitchell, 53 Ohio App.3d 117, 119, 559 

N.E.2d 1370 (8th Dist.1988). 

{¶42} Because of Beal’s testimony, D.R.’s testimony does not provide a strong 

probability that the result will change if a new trial is granted. Petro, 148 Ohio St. 505, 

76 N.E.2d 370 (1947). Beal was standing right next to the victim when he was shot; she 

stated she looked at the shooter as he shot the victim; and she immediately recognized him 

as the man that was staring at her inside the bar. In fact, Tucker admitted at trial to 

having seen Beal inside the bar. Also, D.R.’s testimony simply contradicts Beal’s 

testimony; therefore, it does not support the granting of a new trial. Id. Lastly, two other 

witnesses testified that D.R. was inside the bar at the time of the shooting. Thus, her 

testimony is merely cumulative. 

{¶43} We also conclude the trial court did not err by finding D.R. to be an 

incredible witness. As the court in Gondor held, the judge presiding “at a postconviction 

hearing is in a totally different position from the appellate judges. The postconviction 

judge sees and hears the live postconviction witnesses, and he or she is therefore in a much 

better position to weigh their credibility than are the appellate judges.” Gondor, at ¶ 55. 

{¶44} Here, the court concluded that D.R. was not credible because at the hearing, 

she could positively identify Tucker from the photo on the flier but not from another 

photograph that Tucker had attached to his petition for postconviction relief that she 

referenced in her affidavit. She also stated that Tucker was wearing a “Chief Wahoo” 

jacket, but the evidence showed he was wearing a “blue Phat Pharm” jacket. D.R. also 
stated in her affidavit that she saw Tucker leave with friends, but at the hearing she stated, 

“she assumed” he left with friends. 

{¶45} Based on the foregoing, we affirm the trial court’s decision to deny Tucker’s 

postconviction petition and motion for a new trial because the trial court’s finding D.R. to 

be an incredible witness is supported by competent and credible evidence. Accordingly, 

Tucker’s second assigned error is overruled. 

{¶46} Judgment affirmed. 

It is ordered that appellee recover of appellant its costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to the Cuyahoga County Court of 

Common Pleas to carry this judgment into execution. Case remanded to the trial court for 

execution of sentence. 

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

Rules of Appellate Procedure. 

 

PATRICIA ANN BLACKMON, JUDGE 

MELODY J. STEWART, A.J., and 

MARY EILEEN KILBANE, J., CONCUR