[Cite as State v. Bressi , 2020-Ohio-4.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO Appellant

v. JAMES P. BRESSI Appellee C.A. No. 29257

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR-2013-08-2314

DECISION AND JOURNAL ENTRY Dated: January 2, 2020

TEODOSIO, Presiding Judge. {¶1} Appellant, The State of Ohio, a ppeals from the judgment of the Summit County Court of Common Pleas, grantin g Appellee, James P. Bressi, a ne w trial. This Court affirms.

I. {¶2} This Court previously set forth the underlying facts and proced ural posture of this

case as follows: Summit Pain Specialists is a medical organization that speciali zes in the treatment of individuals suffering from chr onic pain. Before the events giving rise to this appeal, Bressi owned Summit Pain Specialists and operated it al ongside his business partner, Dr. Robert Gei ger. Bressi received his train ing in osteopathic medicine and frequently treated h is patients using osteopathic manipulative treatment (“OMT”), a technique w herein an individual uses his h ands to stretch and exert pressure on various m uscles and joints to achieve opt imal alignment and relieve pain. Starting in 2012, individuals began contacting t he Stow Police Department to report that Bressi had engaged in inappropriate s exual contact with them when they came to him for treatment. The reports launched an intensive investigation led by Detective Jeff Swanson, who interviewed nu merous patients and other individuals who had c ontact with Bressi. In March 20 13, amidst accusations of inappropriate conduc t and his breach of an offic e policy requiring the presence of chaperones during OMTs, Bressi was terminated f rom Summit2

Pain Specialists. Sixth months later, the Stow Police Departme nt’s investigation culminated in his arrest. A grand jury indicted Bressi on two counts of rape, thirteen co unts of gross sexual imposition, and twelve counts of s exual imposition. The twenty -seven counts pertained to eleven different victims, ten of whom were Bressi’ s patients and one of whom, C.H., was a nurse on hi s staff. The incidents underly ing the twentyseven counts were alleged to have occurred at different times b etween May 2011 and March 2013.

* * * The jury found Bressi guilty of a single count of sexual imposi tion and not guilty of the remaining twenty-six counts against him. The court sent enced Bressi to fifty-nine days in jail, five years of probation, and a fine. Additionally, the court classified him as a tie r one sexual offender.

State v. Bressi , 9th Dist. Summit No. 27575, 2016-Ohio-5211, ¶ 2-6. {¶3} Bressi’s conviction for sexual im position was affirmed on appea l. Id. at ¶ 43. He appealed this Court’s decision to the Supreme Court of Ohio, bu t the high court declined to accept jurisdiction. See State v. Bressi , 148 Ohio St.3d 1426, 2017-Ohio-905. He later moved

the trial court for leave to file a motion for a new trial on a ccount of newly discovered evidence. After a hearing on the matter, the trial court found that Bress i had demonstrated by clear and convincing proof he was unavoidabl y prevented from discovery of the new evidence, and thus granted his motion for leave to file a motion for a new trial. See Crim.R. 33(B). Bressi then

filed his motion for a new tria l based upon newly discovered ev idence, which the court subsequently granted desp ite opposition from the State. {¶4} This Court granted the State of Ohio leave to appeal from the t rial court’s judgment granting Bressi a new trial, pursuant to R.C. 2945.67( A) and App.R. 5(C). See State v.

Matthews , 81 Ohio St.3d 375, 379 (1998) (“[A] trial court’s order grant ing the defendant a new trial in a criminal case is a final appealable order which the state may appeal by leave of court.”). The State raises one assignment of error for this Court’s revie w.3

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED BRESSI’S MOTION FOR A NEW TRIAL, MERITING REVERSAL AND VACATION OF THE TRIAL COURT’S ORDER. {¶5} In its sole assignment of error, the State of Ohio argues that the trial court abused its discretion in granting Bressi ’s motion for a new trial. We disagree. {¶6} Crim.R. 33(A) allows a defendant t o move for a new trial when h is substantial rights have been materially affected. Pursuant to Crim.R. 33(A )(6), a new trial may be ordered “[w]hen new evidence material to the defense is discovered whic h the defendant could not with reasonable diligence have discovered and produced at the trial. ” To warrant the granting of a motion for a new trial based upon newly discovered evidence, th e defendant must show that the

evidence: “(1) discloses a strong probability that it will change the res ult if a new trial is granted, (2) has been discovered since the trial, (3) is such a s 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, an d (6) does not merely impeach or contradict the former evidence.”

State v. Tolliver , 9th Dist. Lorain No. 16CA010986, 2017-Ohio-4214, ¶ 18, quotin g State v.

Petro , 148 Ohio St. 505 (1947), syllabus. {¶7} This Court applies an abuse of discretion standard of review wh en reviewing a trial court’s decision to grant o r deny a motion for a new tria l based on newly discovered

evidence. Tolliver at ¶ 18. “The term ‘abuse of discretion’ connotes more than a n error of law or judgment; it implies that the court’s attitude is unreasonab le, arbitrary or unconscionable.”

Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). “A decision is unreasonable if there is no sound reasoning process that would support that decision.” AAAA Ents., Inc. v. River Place4

Community Urban Redevelopment Corp. , 50 Ohio St.3d 157, 161 (1990). When applying an abuse of discretion standard, a reviewing court is precluded fr om simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd. , 66 Ohio St.3d 619, 621 (1993). In other words, “[i]t is not sufficient for an appellate court to determine that a trial court abused its discretion simply because the appellate court might not hav e reached the same conclusion or is, itself, less persuaded by the trial court’s reasoning proce ss than by the countervailing arguments.” State v. Morris , 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 14. {¶8} After Bressi filed a motion for leave to file a motion for a ne w trial, the trial court heard testimony from both Bressi and Z.B. at a hearing on Augus t 8, 2017. Z.B. is the courtappointed receiver in a civil cas e involving Bressi and his for mer partners at Summit Pain. See James P. Bressi, et al. v. Robert S. Geiger, et al. , Summit Cty. Case No. CV 2014-04-2198. Bressi sought and obtained per mission from the appointing court to subpoena Z.B. to testify in

this matter. See, generally, Barton v. Barbour , 104 U.S. 126 (1881). In his capacity as receiver, Z.B. is broadly tasked with identifying, locating, and liquidat ing all assets invol ved in the civil

matter. {¶9} Z.B. testified that while carrying out his duties as receiver h e met with the chief operating officer of Summit Pain (“R.G.”). In his review of th e company’s “books,” Z.B. testified that he discovered many improprieties, including miss ing files that had been removed prior to his arrival and a “tremendous amount of money that cou ld not be accounted for.” According to Z.B., salaries were “out of whack,” receipts for l arge purchases were missing, and “tremendous amounts” of expenditu res were coded as “business de velopment[,]” yet no corresponding purchases could be found. Z.B. testified that R. G. began “tak[ing] everything that wasn’t nailed down[,]” including all of the money out of the a ccounts, while leaving about5

$70,000.00 in unpaid payroll. Some employees of Summit Pain co ntacted Z.B. after he was appointed and claimed that R.G. ha d assured them they were “pro tected” because the receiver would pay them when he arrived. Z.B. also testified that, once litigation was initiated thereafter, Dr. Geiger and his wife filed for bankruptcy. {¶10} Z.B. eventually began reviewin g over 20,000 emails in April or May of 2017, which were obtained in multiple batc hes from R.G.’s attorneys. Z.B. testified that he has worked

almost full-time for ten months r eviewing them all. The emails had been previously protected by Dr. Geiger’s attorney-client privilege, but a waiver of that pr ivilege was negotiated and obtained during Dr. Geiger’s bankruptcy case. Z.B. testified that these emails included some correspondence between R.G. and his attorneys, in which R.G. as ked, “[W]ould it be okay if they got C.H. to embellish her story of Mr. Bressi, would that work for them,” but one of the attorneys replied, “[A]bsolut ely not, don’t do that.” Z.B. fur ther testified: [A]s the pattern goes and this case progresses, there are score s of incidents whereby [R.G., Dr. Geiger, and hi s wife] continued to ask their attorneys can we do this. The attorneys say absolutely not, and then the next e -mail between all three of them is how are we going to do this without permission of the attorneys, and they simply proceed to do it. In fact there are e-mails between the attorneys saying what are we going to do when it’s found out that they did these things. Z.B. clarified that “these things” meant getting C.H. to embell ish her story, “[a]mong other things.” Z.B. further testified:

There were mentions of the fact that [C.H.] should be encourage d to embellish her testimony as it would look good for Dr. Geiger especially comin g up on his medical board hearings because they wanted to lay the blame for everything on [Bressi].

Z.B. also testified that his inve stigation into the emails reve aled: A continual pattern on the part of [R.G., Dr. Geiger, and his w ife] to box out Dr. Bressi starting in ’13. In ’13, and I now have this as other l awyers have been6

forced to turn over their records, there was a concerted effort to first get rid of Dr. Bressi, and I’m not here to comment on that at all, just that t here was a concerted effort to get him out. And then it was discovered that they would have to pay Dr. Bres si for his shares, they all just said we’re not going to do it because he is going to jail forever and guys in jail can’t sue us. Z.B. testified that the emails dated back to 2012, when an inve stor was negotiating the purchase of Bressi’s shares of the business. In 2013, however, a “shift ” occurred in the emails, whereby Dr. Geiger simply said: “[W]ait a second; Bressi is under arres t; he is going on trial; why do I need to sell this; I can keep 100 percent for myself.” {¶11} The State argues that the emails were never produced nor authen ticated at the hearing, which is a prerequisite to admissibility. “Before evi dence may be admitted, it must be

authenticated or identified suffi ciently ‘to support a finding that the matter in question is what its proponent claims.’” State v. Hoffmeyer , 9th Dist. Summit No. 27065, 2014-Ohio-3578, ¶ 18, quoting Evid.R. 901(A). The threshold for admissibility is low , however, and Evid.R. 901(B) provides a nonexhaustive list illustrating the ways in which th e proponent of the admission of evidence can conform with Evid.R. 901(A). State v. Yuschak , 9th Dist. Medina No. 15CA0055- M, 2016-Ohio-8507, ¶ 17. For example, the authentication or id entification of evidence may be achieved through the testimony o f a witness with knowledge that “‘a matter is what it is claimed

to be.’” Id. , quoting Evid.R. 901(B)(1). Here, Z.B. testified that, in his capacity as receiver in a related civil case, he received these emails directly from R.G. ’s attorneys. Z.B.’s testimony is sufficient to satisfy Bressi’s burden to demonstrate a reasonab le likelihood the over 20,000

emails are authentic. See Hoffmeyer at ¶ 18. {¶12} The State argues in the alternative that even if the emails had been admitted, both Z.B.’s testimony and the emails contained inadmissible hearsay. See Evid.R. 801(C) (defining7

“hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter a sserted”); Evid.R. 802 (noting the general inadmissibility of hearsay); but see Evid.R. 803 and 804 (listing multiple exceptions to the hearsay rule). “[T]o prove that a new trial is warranted o n the basis of newly discovered evidence, such evidence must be admissible in the new trial.” State v. Vess , 6th Dist. Ottawa No. OT-10-038, 2011-Ohio-3118, ¶ 38, citing State v. Williams , 43 Ohio St.2d 88 (1975), paragraph one of the syllabus. In rejecting the State’s hearsay argument , the trial court noted in its order: “[T]here are a number of ways in which the emails and other com munications can be introduced into evidence in Bressi’s case-in-chief or for impeachment purp oses.” The State now argues that the trial court erred in considering the admissibility of the e vidence at a new trial. But, the court needed to consider the admissibility of the newly discovered ev idence at a new trial, and we therefore cannot say that it erred in doing so. See id. We determine that the trial court acted within its discretion in reaching its conclusions as to the adm issibility of the evidence. See State v. Henning , 9th Dist. Summit No. 29128, 2019-Ohio-2200, ¶ 17 (“Admissibil ity determinations under the evidentiary rules gene rally fall within the sound dis cretion of the trial court.”). {¶13} The State also cites to our decision in State v. Holmes and argues that affidavits and unverified emails replete w ith hearsay will not satisfy the defendant’s burden to demonstrate a strong probability that the evidence would change the result of a new trial. See State v.

Holmes , 9th Dist. Lorain No. 05CA008711, 2006-Ohio-1310, ¶ 14-15. We find Holmes to be factually distinguishable from Bressi’s case, however, as the m otion for a new trial in Holmes was supported only by Holmes’ own self-serving affidavit, which was largely based on hearsay and unverified documents, e.g., handwritten notes allegedly wri tten by prosecutors and letters purportedly written by his now deceased wife/victim claiming Ho lmes was innocent and that her8

trial testimony was coerced by prosecutors. See id. at ¶ 5-6, 14-15. We therefore determined, based on the particular facts in Holmes , that “the trial court coul d have reasonably determined that the evidence submitted did not create a strong probability that it would change the result if a new trial was granted.” Id. at ¶ 15. Here, Bressi submitted more than his own self-servin g affidavit and handwritten notes of unknown origins. Bressi sub mitted multiple affidavits from various individuals and offered the testimony of the receiver i n his civil case, who testified regarding over 20,000 emails he personally received in his capa city as receiver from the attorneys of one of Bressi’s part ners. The State’s reliance on Holmes is thus misplaced. {¶14} Apart from Z.B.’s testimony regarding his investigation of the emails, the trial

court noted that Bressi offered four affidavits from A.N., P.S. , A.C., and J.N. in support of his motion for a new trial, and the State offered one affidavit fro m the victim of Bressi’s sexual imposition conviction (“C.H.”). {¶15} A.N. is a former patient of Summit Pain Specialists (“Summit Pa in”) who averred

that C.H. called her in 2013 and asked her to contact the Stow Police Department to “implicate Dr. Bressi in inappropriate behav ior.” C.H. purportedly became upset when A.N. “told her it

was not true” and later called A. N. again to ask if she had con tacted the police yet. C.H. became upset once more when A.N. said she had not contacted the police , and “ultimately had [A.N.] discharged as a patient from Summit Pain * * * in retaliation * * *.” A.N. averred that she had C.H. on speakerphone for the first phone call, and K.D. 1 overheard the conversation. C.H. averred, however, that she had no recollection of A.N. or K.D. and never telephoned or asked anyone to implicate Bressi in any inappropriate behavior. C.H. averred that she received calls

1 An unsworn statement from K.D. that was attached to Bressi’s m otion for leave was stricken from the record at the August 8, 2017, hearing and was , consequently, not considered by the trial court.9

from individuals complaining about inappropriate behavior by Br essi, but told those individuals they had two choices: “not do anything or report to Stow Police .” C.H. further averred that she told these people she would have t o “report this to Dr. Geiger. ” {¶16} Although the trial court’s order granting Bressi’s motion for a new trial acknowledges P.S.’ affidavit, we note that the court explained at the August 8, 2017, hearing it would not consider P.S.’ affidavit as newly discovered evidence because she had been on Bressi’s May 29, 2014, witness list for trial. The State argue s that the trial court erred in relying on P.S.’ affidavit nonetheless, but apart from listing the affi davits “offer[ed]” by Bressi nothing

further in the court’s order i ndicates any specific reliance on P.S.’ affidavit. {¶17} A.C. averred that she worked at Summit Pain from September 2012 until 2016, and currently works part-time assisting Z.B. She averred that C.H. was “continually in closed door meetings with Dr. Geiger and [R.G.]” prior to and after Br essi’s departure from Summit Pain. A.C. averred that, followi ng Bressi’s trial, she was pre sent at Summit Pain when C.H. said, “I can’t believe the jury believe d me.” In responding to A.C.’ s affidavit, C.H. averred that it was “true, there were discussions b ehind closed doors that involved may (sic) aspects of [Summit Pain].” In its order, the trial court specifically noted that C.H., in her affidavit, did not deny making the comment: “I can’t be lieve the jury believed me.” {¶18} C.H. further averred that her testimony at Bressi’s trial was t ruthful and she was never contacted by anyone who asked her to “embellish or alter [her] statement or testimony concerning James Bressi.” We pr eviously summarized C.H.’s test imony at trial as follows: C.H. testified that she worked at Summit Pain Specialists for a total of about fourteen years. In January 2012, she accepted a position at th e Stow location with Bressi. C.H. testified that she was familiar with Bressi becau se she previously had worked with him at a different office. She stated that, af ter she accepted her position at the Stow office, she worked as a triage nurse and w as typically in the office from 7:30 a.m. until 4:30 p.m. One day in March or Apri l 2012, C.H.10

stayed late at the office to finish returning phone calls. Whe n she finished, she went to say goodbye to Bressi and he asked how she was doing. C .H. testified that Bressi was aware that she was emotionally fragile at the time b ecause he knew her son had died the previous year a nd he knew she was scheduled to have a heart catheterization performed. She t estified that, when she told B ressi she did not care what happened to her, he asked her to come back to one of the office visit rooms. C.H. stated that Bressi closed th e examination room door behind her and had her lie face down on the examination table. He then started massag ing her back and shoulders. C.H. indicated that, when she lay down on the table , she placed her arms at her sides with her palms facing up. As Bressi massaged C.H., she began to feel his penis rubbing in her palm. C.H. testified that she attempted to stop the connection by placing her hands up over her head, but Bressi th en took her arms, moved them back down to her sides , and continued to rub his pen is against her hand. C.H. then tried again to move her arms, and Bressi once again moved them back into position, rubbing his penis against her. At that poi nt, C.H. testified that she fisted both of her hands. Bressi then brought her left arm out to the side, massaged her hand until she opened it, and placed it back down on her side. He continued rubbing farther down her back until he reached the to p of her pants and “scooted [them] down.” C.H. testified that Bressi began “touching at [her] vaginal are a,” so she immediately told him that his touch was too personal. After sh e did so, Bressi stopped touching her near her va gina, but told her that “it was n't for him,” but for her because she “needed the release.” C.H. testified that she had received OMTs from Bressi in the past, but they never involved him placing hi s fingers near her vagina or rubbing his penis on her. She testified that she beg an crying on the examination table and, while she continued to cry, Bressi had h er roll onto her back. Bressi then performed several adjustments before C.H. to ld him that she needed to go. C.H. got down from the table and left the room. She testified that Bressi left the building with her and spoke to her as they were crossing the parking lot. According to C.H., Bressi told her that she neede d to go home because she and her husband “needed to f* * * [their] brains ou t.” C.H. testified that she continued to work at Summit Pain Specia lists after her encounter with Bressi because she could not afford to leave her job and similar nursing positions were not readily available. She testified th at she waited two weeks to tell her husband what had happened because she was afr aid of how he would react. Meanwhile, a few days after the incident, she tol d Dr. Geiger what Bressi had done. According to C.H., Dr. Geiger told her that s he “had his backing” if she chose to contact the police, but that it was he r decision to make. She testified that, following her disclosure to Dr. Geiger, a n ew office policy was put into effect. Per the policy, no medical massages were to b e performed and no OMTs were to be performed wit hout another employee being presen t in the room. C.H. testified that she never intended to report Bressi to the police, but the police11

later contacted her while investigating Bressi. She then met w ith the police and gave a written statement.

Bressi , 2016-Ohio-5211, at ¶ 27-30. {¶19} J.N. averred that she was present with her daughter (“A.N.”) an d her daughter’s friend (“C.D. 2 ”) when A.N. received a phone call from C.H., which was on spea kerphone. She averred that C.H. asked A.N. during the phone call to “implicat e Dr. Bressi in inappropriate

behavior and to contact Detective Swanson of the Stow Police De partment.” J.N. averred that C.H. became upset when A.N. “said this wasn’t true and would no t do so.” She averred that A.N. was discharged from Summit Pain shortly thereafter, “which began her downward spiral.” In response, C.H. averred that she had no recollection of J.N. {¶20} In granting Bressi’s motion for leave to file a motion for a ne w trial, the trial court

determined that Bressi’s new e vidence satisfied the second and third Petro prongs, i.e., the

evidence has been discovered since the trial and is such that i t could not have been, in the exercise of due diligence, discovered before the trial. See Holmes , 2006-Ohio-1310, at ¶ 11 (“Crim.R. 33(B) calls for an initial determination that there w as unavoidable delay.”). The State argues that because the names of all of Bressi’s patients were in his files, he could not establish that he was unable to discover the evidence from A.C., J.N., an d A.N. prior to trial if he indeed exercised due diligence. “If a defendant could have discovered and produced evidence for trial, then that evidence is not the proper subject of a motion filed under Crim.R. 33(A)(6).” State v.

Prade , 9th Dist. Summit No. 28193, 2018-Ohio-3551, ¶ 52.

2 C.D., as named in J.N.’s affidavit, appears to be the same per son as K.D., as listed in A.N.’s affidavit. The two names are almost identical, except f or the spelling of the person’s first name.12

{¶21} The trial court, however, was pr esented with evidence that Bres si maintained a client base of over 12,000 patients and paid an investigative f irm approximately $30,000.00 to review and investigate claims a nd witnesses. Despite an extens ive investigation, Bressi presented evidence that it was not feasible to interview over 1 2,000 individuals and, consequently, certain patients we re not identified as possible victims before his trial was

concluded. Z.B. also testifie d that the over 20,000 emails he reviewed were previously protected by attorney-client privilege and, thus, inaccessible until some time after Bressi’s criminal trial. Thus, we cannot say that the tria l court erred in determining t hat the new evidence was

discovered after Bressi’s trial and could not have been, in the exercise of due diligence,

discovered before the trial. {¶22} The State next argues that the trial court abused its discretio n in finding that the new evidence was material to the issues, as the issue during tr ial was Bressi’s sexual imposition of C.H., not whether Bressi’s bus iness partners wanted him out of their practice. This Court disagrees, however, as evidence that a plan or conspiracy was h atched among Bressi’s partners to have C.H. embellish or fabricate testimony against Bressi so th ey could obtain Bressi’s shares of the business without paying him is highly relevant to the issue of whether Bressi’s contact with C.H. during the OMT rose to the level of criminal activity. {¶23} The State also argues that the trial court abused its discretio n in finding that Bressi’s new evidence was not merely cumulative to former evide nce. The State directs us to the fact that Bressi testified at trial that he believed the charge s against him were the result of a conspiracy promulgated by his Summit Pain partners in an attemp t to force him out of the practice. As such, the State contends that the new evidence me rely confirms the version of13

events Bressi presented to the jury, in which his partners were trying to “buy out” and then “box

out” Bressi. {¶24} However, we see no error in the t rial court’s determination tha t Bressi’s newly

discovered evidence is not merel y cumulative to the evidence he presented at trial. Bressi

testified at trial that he was b eing secretly watched without h is knowledge or permission to see if he was doing anything inappropria te, which occurred at the behe st of both Dr. Geiger and a law firm that had represented Summit Pain in the past. He thus sur mised that Dr. Geiger was conspiring to oust him from the ir practice, and likewise testif ied that he “believe[d] Dr. Geiger had talked to [C.H.] and [had given] her a heads-up about possi bly [his] manipulation techniques not being above board.” Bressi , 2016-Ohio-5211, at ¶ 41. {¶25} At the August 8, 2017, hearing, Z.B. testified as to voluminous , previously

unavailable emails between Bressi ’s partners discussing ousting him from the practice without paying him for his shares and discussing having C.H. embellish her testimony against Bressi. The affidavits Bressi attached to his motion also provided new evidence that C.H. was involved in closed door meetings with Bressi ’s partners and allegedly ur ged another individual to contact the police to implicate Bressi in inappropriate behavior. A.C. ’s affidavit provided new evidence that C.H. told others at Summit Pain, “I can’t believe the jury believed me” sometime after Bressi’s trial, which C.H. chos e not to deny in her own affidav it. Email and affidavit evidence of Bressi’s partners’ and C.H.’s motivations and involvement in a conspiracy to falsely implicate Bressi in criminal actions, as well as evidence of C.H.’s post- trial remarks, goes well beyond what was available and offered through Bressi’s opinion testimo ny at trial. See, e.g., State v. Knoefel , 11th Dist. Lake No. 2017-L-150, 2019-Ohio-267, ¶ 63 (Westcott Rice, J., concurring in part and dissenting in part). W e therefore cannot say that the trial court abused its discretion in14

determining that Bressi’s newly discovered evidence is not “mer ely cumulative,” as it instead provides a “much stronger foundati on” for Bressi’s personal bel ief that he was conspired against, and is “different, in kind and character” from the evidence he presented at trial. See State v.

Beavers , 2d Dist. Montgomery No. 22588, 2009-Ohio-5604, ¶ 35. {¶26} The State further argues that the trial court abused its discre tion in determining that Bressi’s new evidence does not merely impeach or contradic t former evidence and further discloses a strong probability that it will change the result i f a new trial is granted. A Crim.R. 33 motion for a new trial must demonstrate the strong probability that newly discovered evidence would have led to a verdict of not guilty. Prade at ¶ 30. The “mere possibility” that a new trial might lead to a different outcome is not a sufficient basis upo n which to grant a motion for a new

trial. Id. at ¶ 41. It is important to note that “[e]vidence that impeac hes or contradicts the evidence at trial is not excluded from consideration per se, bu t the character of that evidence is relevant to whether a different result is a strong probability. ” Jalowiec , 2015-Ohio-5042, at ¶ 38. “[T]he nature of such evidence requires that a trial court exer cise circumspection in determining whether newly discovered evidenc e of that character would creat e a strong probability of a different result, because such evidence quite often will not be likely to change the outcome.” Id. , quoting Dayton v. Martin , 43 Ohio App.3d 87, 90 (2d Dist.1987). {¶27} The trial court found that Bressi ’s new evidence does not merel y impeach or contradict; rather, it presents a “different version of the eve nts.” At trial, the State presented testimony from Summit Pain employees regarding Bressi’s noticea ble change in appearance beginning in 2011 and 2012. Bressi’s hygiene was now suffering as he wore wrinkled and unclean clothes, failed to keep h is hands clean, and appeared d isheveled and more irritable than

usual. See Bressi , 2016-Ohio-5211, at ¶ 31-32. Moreover, a new written office p olicy was15

instituted regarding Bressi and his female patients, which requ ired a female chaperone to be present when an OMT was performed on a female. See id. at ¶ 32. The jury also heard evidence that Bressi was terminated from Summit Pain for violating the c haperone policy and for sexually abusing patients. See id. at ¶ 33, 36. {¶28} The trial court determ ined that this evidence stood in “stark c ontrast” to the evidence presented at the August 8, 2017, hearing and in Bressi ’s motion for a new trial, whereby “significant malfeasance” was occurring at Summit Pain involving undocumented distributions, the destruction of documents and financial recor ds, and a conspiracy to “box [Bressi] out” without paying him while having C.H. embellish he r allegations of criminal

conduct. The court found this to be a “substantial change in t he underlying facts of the case,” as the jury was never presented with any evidence indicating crimi nal or fraudulent actions by Bressi’s partners or a conspiracy to “frame” him for sexual ass ault. The court determined that Bressi’s new evidence not only corroborated his trial testimony that someone else may have caused C.H. to believe Bressi’s contact with her during the OMT was inappropriate, but also revealed “a criminal conspiracy against Bressi perpetrated by t he owners of [Summit Pain] and

C.H.” The court further found that the new evidence “reveals s ignificant credibility issues for C.H., whose testimony as a vic tim was essential in supporting t he only conviction against Bressi * * *.” Given that Bressi never denied performing the OMT on C .H., and his trial testimony was largely consistent with C.H.’s testimony as to the basic facts of that particular incident, the trial court ultimately found that there was a strong probability this newly discovered evidence would change the result of a new trial. {¶29} We cannot agree with the State’s argument that the trial court abused its discretion in reaching its conc lusions here. C.H. was undoubte dly the State’s key witness in16

Bressi’s lone conviction for sexu al imposition, and she testifi ed in graphic detail regarding Bressi’s alleged criminal behavior during the OMT. See Bressi , 2016-Ohio-5211, at ¶ 27-30. Bressi did testify at trial as to a possible conspiracy against him and his belief that Dr. Geiger may have given C.H. a “heads-up” that Bressi’s OMT techniques w ere not “above board,” but no evidence of this possible conspi racy beyond Bressi’s own specul ation was presented to the jury.

See id. at ¶ 41. While the State argues that evidence C.H. embellishe d or fabricated her allegations would merely impeach her trial testimony, “‘newly d iscovered evidence impeaching key testimony may alone be sufficient to grant a new trial if i ntroduction of the evidence at trial probably would have changed the result.’” State v. Fortson , 9th Dist. Summit No. 18513, 1998 WL 224941, *3 (May 6, 1998), quoting State v. Brumback , 109 Ohio App.3d 65, 85-86 (9th Dist.1996). See also State v. Robertson , 1st Dist. Hamilton No. C-160681, 2017-Ohio-7225, ¶ 23-24 (determining that testimony supporting a motion for a new trial presenting a different

version of events from that offere d by the State at trial, whic h calls into question the only testimony identifying the defendant as the perpetrator, is “mor e than merely impeaching or contradictory to the eviden ce presented at trial.”). {¶30} Upon careful review of the record in this matter, this Court ca nnot conclude that the trial court abused its discretion in determining that Bress i’s newly discovered evidence

satisfied all six Petro factors. The trial court’s deci sion is not unreasonable, i.e. , lacking a sound reasoning process supporting it, nor is it arbitrary or unconsc ionable. See AAAA Ents. , 50 Ohio St.3d at 161; Blakemore , 5 Ohio St.3d at 219. Bearing in mind the highly deferential standard of review applicable in this matter, we must conclude that the tri al court acted within its sound discretion in granting Bressi ’s motion for a new trial. {¶31} The State’s sole assignment of error is overruled.17

III. {¶32} The State’s sole assignment of error is overruled. The judgmen t of the Summit County Court of Comm on Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellant.

THOMAS A. TE ODOSIO FOR THE COURT

HENSAL, J. SCHAFER, J. CONCUR.18

APPEARANCES: SHERRI BEVAN WALSH, Prosecuti ng Attorney, and JACQUENETTE S. CO RGAN, Assistant Prosecuting Attorney, for Appellant. MICHAEL T. CALLAHAN, Attorney at Law, for Appellee.