State v. Gaiter, 2017 Ohio 7046

Ray C. Gaiter was convicted by a jury in 2009 of multiple offenses including criminal gang activity; this Court previously affirmed those convictions.
In Sept. 2015 Gaiter filed a pro se motion for leave to file a motion for new trial, claiming post-conviction evidence showed officer Schismenos engaged in longstanding corrupt activity that would have impeached his credibility.
Gaiter later filed a revised/amended new-trial motion (and counsel submitted a supporting brief) arguing, inter alia, that two photographs suppressed in an earlier case (Gaiter I) were nonetheless introduced during Officer Schismenos’s testimony in the trial at issue (Gaiter II), and that Schismenos misstated when and how he obtained the photos.
The State responded that Schismenos’s testimony was cumulative and that Gaiter failed to show the suppressed-photograph facts were unknown at trial.
The trial court denied the motion without an evidentiary hearing; Gaiter appealed, arguing the court abused its discretion by refusing a hearing.
The Ninth District affirmed, holding Gaiter failed to comply with appellate briefing rules and did not demonstrate the trial court’s refusal to hold a hearing was unreasonable, arbitrary, or unconscionable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused its discretion by denying an evidentiary hearing on a Crim.R. 33 new-trial motion based on newly discovered/impeaching evidence	Gaiter: newly discovered evidence about Officer Schismenos’s corruption and improper admission of suppressed photos would have materially impeached Schismenos and probably produced a different result	State: Schismenos’s testimony was minimal/cumulative; Gaiter failed to show the facts were unknown at trial or what additional evidence he would present at a hearing	Court: No abuse of discretion — Gaiter’s brief failed to explain how the court’s refusal was unreasonable or what new evidence would have been presented, so assignment of error overruled

Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse of discretion standard explained)
Kremer v. Cox, 114 Ohio App.3d 41 (1996) (failure to comply with appellate briefing rules is ordinarily fatal)