[Cite as State v. Thompson,
2023-Ohio-3358.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112042
v. :
JOHN THOMPSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: September 21, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-00-396442-ZA
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellee.
Rufus Sims, for appellant.
MARY EILEEN KILBANE, J.:
Defendant-appellant John Thompson (“Thompson”) appeals from
the trial court’s denial of his motion for a new trial. For the reasons that follow, we
reverse and remand.
Factual and Procedural History
In February 2001, a jury found Thompson guilty of three counts of
rape in violation of R.C. 2907.02. He was sentenced to life imprisonment and
classified as a sexual predator.
Thompson’s son, C.W., was seven years old at the time of Thompson’s
2001 trial. C.W. testified at Thompson’s trial that Thompson engaged in sexual
conduct with him on three separate occasions. C.W. testified that Thompson
performed fellatio on his private parts and told C.W. not to tell his mother, M.W.
After the third occasion, C.W. told M.W. about all three incidents. At the time, M.W.
was employed as a county social worker and was under investigation related to
allegations that she was selling drugs out of her home and that C.W. was sexually
acting out with another boy who lived in the neighborhood.
Thompson filed a direct appeal challenging his convictions and
sentence and a petition for postconviction relief based on ineffective assistance of
counsel. In Thompson’s direct appeal, this court affirmed his convictions and
sentence. State v. Thompson, 8th Dist. Cuyahoga No. 79334, 2002-Ohio-5957
(“direct appeal”). On June 20, 2002, the trial court denied Thompson’s petition for
postconviction relief. Subsequently, this court affirmed the trial court’s denial of his
first petition for postconviction relief. State v. Thompson, 8th Dist. Cuyahoga No.
81573,
2002-Ohio-6845.
On April 20, 2020, Thompson filed a motion for leave instanter to file
a delayed motion for a new trial. In this motion, he argued that on October 28, 2019,
C.W. recanted his trial testimony from the 2001 jury trial. Thompson attached an
affidavit to his motion in which C.W. averred that Thompson was innocent.
Specifically, C.W. averred that beginning when he was two or three years old, he was
sexually molested by a male cousin who was five or six years older than C.W. The
abuse was ongoing for several years. When C.W. finally told his aunt, the cousin’s
mother, about the abuse, his aunt got extremely upset. Subsequently, the cousin
approached C.W. and told him to say that someone else had molested him. The
affidavit states, “Being afraid of [my cousin] and the consequences of it all, and
honestly, not wanting what I had going on with my cousin to end, I lied and said my
father John Thompson had molested (raped), me.” At Thompson’s criminal trial,
seven-year-old C.W. described three incidents in which Thompson came up to him,
lowered C.W.’s pants, and sucked on C.W.’s penis. All three alleged incidents took
place in different rooms at the house that Thompson shared with his mother and
brother.
C.W. also avers that he told his close friends, a professor, his mother
M.W., his brother, and his sister that Thompson did not rape him. C.W. confided in
his graduate school professor because he considered this person to be a mentor and,
at the time, the professor was also enrolled in law school. Eventually, C.W. spoke to
Thompson’s original trial counsel, who told him that it was his fault for waiting so
long. He also reached out to the Innocence Project, who told him that they could
not help him. C.W. also contacted the Conviction Integrity Unit at the Cuyahoga
County Prosecutor’s Office and spoke with investigators about the case.
On July 10, 2020, the state filed a brief in opposition to Thompson’s
motion for leave to file a motion for a new trial.
On March 1, 2021, the trial court denied Thompson’s motion for leave
to file a delayed motion for a new trial without a hearing. On March 15, 2021,
Thompson filed a motion for the court to establish findings of fact and conclusions
of law. The trial court ruled this motion moot. Thompson subsequently appealed
the denial of his motion for leave to file a delayed motion for a new trial.
This court reversed and remanded the case, holding that “[b]ecause
Thompson submitted evidence that on its face showed he was unavoidably
prevented from discovering the evidence sooner, he was entitled to a hearing on his
motion for leave.” State v. Thompson, 8th Dist. Cuyahoga No. 110391, 2021-Ohio-
4431, ¶ 14.
On remand, on January 7, 2022, Thompson filed a motion for a new
trial. On February 4, 2022, the state filed a motion to strike Thompson’s motion for
a new trial, arguing that the motion was not yet ripe because the trial court had yet
to hold an evidentiary hearing on Thompson’s motion for leave to file a motion for
a new trial.
On February 11, 2022, Thompson filed an amended motion for leave
to file a delayed motion for a new trial. On April 15, 2022, the state filed an
opposition to Thompson’s amended motion for leave. On April 27, 2022, Thompson
filed a motion to dismiss his conviction for a violation; an affidavit from his former
counsel was attached in support of the motion.
On April 26, 2022, the trial court ordered the Cuyahoga County
Division of Children and Family Services (“CCDCFS” or “agency”) to provide the
court with “any and all available CCDCFS records” requested by the state related to
this case. On June 6 and June 10, 2022, agency prosecutors filed CCDCFS records
under seal for the trial court to conduct an in camera review.
These records contain reports, interview summaries, and other
documentation relating to numerous CCDCFS investigations into C.W.’s family in
the summer of 2000. The first investigation was the result of a July 19, 2000 intake
report in which a neighbor of M.W. contacted CCDCFS and alleged that M.W. was
selling drugs out of her home and allowing C.W. to engage in inappropriate sexual
behavior with another child in the neighborhood. The subsequent investigation is
the result of two separate intake reports. Notably, in an intake report dated August
8, 2000, Thompson contacted CCDCFS and reported a possible sexual assault of
C.W. Thompson reported that M.W. had informed Thompson that C.W. had been
sexually abused but refused to take him to the doctor and refused to call the police.
In a subsequent intake report, dated several days later, M.W. reported that
Thompson had sexually abused C.W. M.W.’s report and subsequent investigation
led to the arrest in Thompson’s underlying criminal case.
On June 13, 2022, the trial court held a hearing on Thompson’s
motion for leave to file a motion for a new trial. C.W. testified at this hearing that
he was 29 years old and employed at a local school district as a teacher. C.W.
identified Thompson as his father and stated that he had not seen his father since
C.W. testified in court against him in 2000. C.W. testified that around that time, he
was living with his mother M.W., his brother, his sister, and his grandmother in a
house in East Cleveland. C.W. explained that he regularly saw his older male cousins
and several other boys who lived up the street. C.W. testified that his cousin was
molesting him, and when he told people — social workers or police — that his cousin
molested him, his aunt “blew up at him,” and shortly thereafter, “my cousin had
approached me and said to say it was someone else.” C.W. also testified that his
cousin ultimately told C.W. to say that his father Thompson had molested him.
The following exchange occurred between C.W. and Thompson’s
counsel:
C.W.: I really, you know, when they came and—when it came up, I
originally didn’t even say what anything had happened. I don’t know
who—which group of people that came and talked to me, but they just
asked specific questions like what did he do. I filled in the blank. How
many times—I’ll never forget this conversation. I think it was two white
men. How many times did he do it? Where did he do it?
DEFENSE COUNSEL: Now, when you say who —
C.W.: Being my father.
DEFENSE COUNSEL: Is the “he” you’re referring to?
C.W.: My father. It was two lawyers that came, or two lawyers — two
men came to talk to me, two white men.
DEFENSE COUNSEL: Two men.
C.W.: They asked me questions to see what had happened after I said
it was my dad, because I didn’t give any details or nothing. I said—I
remember questions. He said, What did he do? And I said that he
sucked my penis. He said, How many times? I said three. He said,
Where? I thought about my grandmother’s house. I said, the
bathroom, because I remember the glass doors. I always thought about
the glass doors when I was there.
DEFENSE COUNSEL: Okay.
C.W.: I said the basement. She had video games in the basement. And
I think I said the bedroom. It was like, green, red lights in the room,
just things, you know, stood out in my memory at the time. So three
places that just came out of my mouth.
C.W. went on to say that he implicated his father, and when asked why he did so, he
stated:
Because my cousin told me to do it. He said he was going to hurt me,
hurt my mom. I was kind of foolish enough to believe it at the time.
C.W. testified that he remembered being nervous testifying at trial at
the age of seven. C.W.’s thoughtful testimony reflects that he wrestled with his trial
testimony for nearly twenty years. C.W. explained that over a period of several years,
he had confided in several people close to him about his testimony and attempted to
reach out to several individuals and legal and news organizations who could help
him. Having reached several dead ends, in desperation and unsure of where to turn,
C.W. posted a YouTube video of his recantation. Ultimately, C.W. testified that he
came forward to recant his trial testimony in approximately 2017, when he
graduated from graduate school. When asked why it took him that long to come
forward, C.W. responded:
I was—different reasons throughout the years. Like nervous, scared,
like scared of my dad being angry at me, scared of, you know, me
possibly going to jail when I was a kid. Me, just all different sorts of
things, you know, fear, you know, from like my family would be—just
all different sorts of things. Anything you can imagine I been through.
C.W. also confirmed that he had not had any direct contact with
Thompson since the criminal trial in 2001. He referred to only one occasion, shortly
before the hearing on the motion for leave, in which C.W. and his uncle met with
Thompson’s counsel in advance of the hearing. During the meeting, C.W.’s uncle
got a phone call from Thompson, and C.W. and Thompson said hello to each other
over the phone. Beyond that, the record reflects that C.W. and Thompson had
absolutely no contact with one another whatsoever in the time between the 2000
trial and the 2022 hearing on Thompson’s motion for leave to file a motion for a new
trial.
When asked why he decided to come forward to recant his testimony,
C.W. responded:
I mean, it was about time it had to come out. It was either tell the truth
or leave this earth. It was at that point.
On June 17, 2022, Thompson filed a memorandum in support of his
motion for leave to file a delayed motion for new trial.
On June 29, 2022, the trial court granted Thompson’s motion for
leave to file a motion for a new trial. On July 5, 2022, Thompson filed a motion for
a new trial. On August 28, 2022, the state filed a brief in opposition to Thompson’s
motion for a new trial. On August 30, 2022, Thompson filed a reply brief in support
of his motion for a new trial.
On August 30, 2022, the court held a hearing on Thompson’s motion
for a new trial. At the beginning of this hearing, the following exchange took place:
DEFENSE COUNSEL: Your Honor, we have also had, as you know, a
full hearing on a motion for leave instanter to grant a motion for new
trial, which I think this Court did grant.
THE COURT: That’s where the young man testified.
DEFENSE COUNSEL: And [C.W.] was also subject to interrogation by
the State’s two investigators, which you recall there was some
controversy about me being present or not being present and that, and
I was not present during that interrogation.
So [C.W.] has been vetted thoroughly, Your Honor. He has been crossexamined by the State of Ohio in a hearing before this Court. He has
been interrogated by the State’s investigators previously, Your Honor.
He has — I think what is important for the Court to know is that nobody
prompted [C.W.] to do this affidavit and to come forward with this
information.
I didn’t even know — I never met [C.W.] until this case evolved, so it is
not like somebody said to [C.W.], [C.W.], why don’t you do this? You
better do this. You should do this and help your father out.
The idea for this whole process came from [C.W.] himself, because it is
in the affidavit of materiality, Judge. He said, listen, I was seven years
old when I testified. He’s...twenty-nine now. So seven years old, Judge,
and thirty. So he came of age where he knew that he was compelled
and forced and interrogated and intimidated to lie under oath on his
own father.
Also the testimony was, Your Honor, and verified in the transcripts,
that these alleged individuals who did this intimidation, coercion and
threats also threatened to harm his mother as well, Your Honor.
So [C.W.] has lived with this heavy burden for a long time; and during
the course of events, Your Honor, and this came out in his testimony
before the Court, and it is in the transcripts as well, he went to a number
of options to try to seek help.
He went to a professor at his college. He went to, Your Honor, my
heroes, the Innocence Project, but even they could not help him. He
went to the TV stations. He did a video. He got on the Internet.
He talked to relatives, friends. He did everything he could to come up
with some way to get the truth out as to what really happened at this
trial when he was seven years old.
Finally he was able to meet up with Miss Bickerstaff and the truth goes
on from there. I got involved and became involved representing his dad
in this matter. So, Judge, I guess the point I want to make is two things:
Looking at the credibility of [C.W.], I think it is clear that he is a credible
person. He’s credible, because the idea of coming forward came from
him and he said — again, I don’t want to repeat myself, but he couldn’t
live with himself knowing that he lied, putting his father in prison.
Ultimately, defense counsel argued that C.W.’s testimony was material, credible,
and would change the outcome of the trial.1
In response, the state argued that C.W.’s summary of the timeline of
events in his affidavit does not align with the evidence presented at Thompson’s
trial.
On September 14, 2022, the court denied Thompson’s motion for a
new trial and stated, in relevant part:
In relying on all the evidence, including some of the original trial
transcripts, the court cannot find that it is reasonably well satisfied that
the trial testimony initially given by the witness was false. The jury, as
the trier of fact, deserved the benefit of the doubt in weighing the
credibility of each testifying witness at trial, which included both direct
and cross-examination. Therefore, the motion for new trial is denied.
The trial court also denied Thompson’s motion to dismiss his
conviction for a Brady violation.
1 While the record reflects that C.W. was present at this hearing, he did not testify
or address the court other than to clarify his age.
On September 27, 2022, Thompson filed a motion for reconsideration
of the trial court’s denial of his motion for a new trial. On October 14, 2022,
Thompson filed a notice of appeal from the trial court’s denial of his motion for a
new trial. On October 28, 2022, the trial court denied Thompson’s motion for
reconsideration.
Thompson presents three assignments of error for our review:
I. The trial court erred and abused its authority by denying Appellant’s
motion for a new trial.
II. The trial court erred and abused its discretion by denying without a
hearing Appellant’s motion to dismiss the conviction regarding a Brady
violation [even] with no opposition from the state.
III. The trial court erred and abused its discretion when it denied and
rejected C.W.’s recanted testimony which was converted to an affidavit
of materiality.
Law and Analysis
I. Motion for a New Trial
In his first assignment of error, Thompson argues that the court erred
and abused its discretion when it denied his motion for a new trial. In his third
assignment of error, he argues that the trial court erred and abused its discretion
when it rejected C.W.’s recanted testimony that was presented in an affidavit
attached to his motion for a new trial. Because both Thompson’s first and third
assignments of error deal with the substance of his motion for a new trial, we will
address them together.
Crim.R. 33(A)(6) provides that “[a] new trial may be granted on
motion of the defendant for any of the following causes affecting materially the
defendant’s substantial rights,” such as
[w]hen new evidence material to the defense is discovered which the
defendant could not with reasonable diligence have discovered and
produced at the trial. When a motion for a new trial is made upon the
ground of newly discovered evidence, the defendant must produce at
the hearing on the motion, in support thereof, the affidavits of the
witnesses by whom such evidence is expected to be given, and if time is
required by the defendant to procure such affidavits, the court may
postpone the hearing of the motion for such length of time as is
reasonable under all the circumstances of the case. The prosecuting
attorney may produce affidavits or other evidence to impeach the
affidavits of such witnesses.
Crim.R. 33(A)(6).
A Crim.R. 33(A)(6) motion for new trial on the ground of newly
discovered evidence may be granted only if that evidence
‘‘(1) discloses a strong probability that it will change the result if a new
trial is granted, (2) has been discovered since the trial, (3) is such as
could not in the exercise of due diligence have been discovered before
the trial, (4) is material to the issues, (5) is not merely cumulative to
former evidence, and (6) does not merely impeach or contradict the
former evidence.’’
State v. Gilbert, 8th Dist. Cuyahoga No. 106358, 2018-Ohio-3789, ¶ 24, quoting
State v. Petro,
148 Ohio St. 505,
76 N.E.2d 370 (1947), syllabus.
The decision to grant or deny a motion for a new trial lies within the
sound discretion of the trial court and will not be disturbed on appeal absent an
abuse of that discretion. Id. at ¶ 25, citing State v. Schiebel, 55 Ohio St.3d 71, 76,
564 N.E.2d 54 (1990). The term abuse of discretion connotes more than an error of
law or judgment; it implies that the court’s attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore,
5 Ohio St.3d 217,
450 N.E.2d 1140
(1983); Johnson v. Abdullah,
166 Ohio St.3d 427,
2021-Ohio-3304,
187 N.E.3d 463.
“Generally, newly discovered evidence that purportedly recants
testimony given at trial is ‘looked upon with the utmost caution.’” State v. Nunez,
8th Dist. Cuyahoga No. 104917, 2017-Ohio-5581, ¶ 35, quoting State v. Nash, 8th
Dist. Cuyahoga No. 87635,
2006-Ohio-5925, ¶ 10. An affidavit recanting witness
testimony is “‘viewed with extreme suspicion because the witness, by making
contradictory statements, either lied at trial, or in the current testimony, or both
times.’”
Id., quoting State v. Gray, 8th Dist. Cuyahoga No. 92646,
2010-Ohio-11,
¶ 29. Therefore, “‘there must be some compelling reason to accept a recantation
over testimony given at trial.’”
Id., quoting State v. Fortson, 8th Dist. Cuyahoga No.
82545,
2004-Ohio-5387, ¶ 13.
When evaluating a motion for a new trial based upon a witness’s
recanted testimony, the trial court must evaluate the credibility of the recanting
witness. Nunez at ¶ 36, citing Toledo v. Easterling, 26 Ohio App.3d 59, 60,
498
N.E.2d 198 (6th Dist.1985). If the court determines that the recantation is
believable, it must then determine if the recanted testimony would have materially
affected the outcome of the trial.
Id., citing State v. Brown,
186 Ohio App.3d 309,
2010-Ohio-405,
927 N.E.2d 1133, ¶ 47 (7th Dist.).
Here, the trial court concluded that it could not find that C.W.’s initial
trial testimony was false, and further, that the jury “deserved the benefit of the doubt
in weighing the credibility of each testifying witness at trial,” including C.W.
Notably, the trial court did not make a determination as to the credibility of C.W.’s
recantation. Instead, the trial court stated that it could not find that C.W.’s trial
testimony, given at the tender age of seven, was false.
The state of Ohio argues that C.W.’s recantation is not credible
because of alleged discrepancies in his timeline of events. Specifically, the state
refers to records from CCDCFS that would contradict C.W.’s recantation. The state
alleges that these records would show that CCDCFS “began looking at C.W. because
of allegations of another child being touched inappropriately.” Further, the state
argues that there is no documented encounter in which C.W. would have made
allegations against his cousin.
Having reviewed both the CCDCFS records and the 2000 trial
testimony, we find the state’s arguments unpersuasive. As an initial matter, the
agency records reflect at least one instance in which C.W. identified his cousin as the
perpetrator of his sexual abuse.
Moreover, to the extent that the state points to discrepancies in C.W.’s
recantation, we note that our review requires courts to weight the credibility of the
recanting witness and determine if the recantation is credible, “thereby impliedly
finding the original testimony was not credible.” State v. Meek, 10th Dist. Franklin
No. 16AP-549, 2017-Ohio-9258, ¶ 21, quoting State v. Woodward, 10th Dist.
Franklin No. 08AP-1015,
2009-Ohio-4213, ¶ 22. Comparing C.W.’s recantation to
his 2001 trial testimony, we find that the recantation is extremely credible. Any
expectation that C.W.’s recantation would be entirely in lockstep with his decades-
old trial testimony both contradicts the inherent nature of a recantation and imposes
an unreasonable and arbitrary expectation on the witness. Further, the state’s
assertion that there is nothing in the record to corroborate C.W.’s “timeline of
events” in his recantation and corresponding 2022 testimony ignores the details of
the CCDCFS investigations and C.W.’s own trial testimony. While the state would
have us put aside the identity of the person “or perhaps persons” who sexually
abused C.W., we note that with the exception of the critical fact that Thompson
abused C.W., much of C.W.’s recantation is actually corroborated by the record in
this case. Additionally, we note that with respect to the timeline in this case,
Thompson’s original indictment alleged that the crimes occurred over one 24-hour
period. State v. Thompson, 8th Dist. Cuyahoga No. 79334,
2002-Ohio-5957. At
trial, however, the state’s case actually reflected three alleged incidents that occurred
at some unknown point throughout the summer of 2000. If the state of Ohio was
unable to provide a consistent timeline of events in the immediate aftermath of the
incidents, as is entirely reasonable in child sexual abuse cases, it is unreasonable and
arbitrary to expect a 29-year-old man to provide a consistent timeline, decades later,
of events he is recanting.
Additionally, with respect to the state’s argument that records show
that C.W. touched another child inappropriately, it is unclear how these allegations
— that a seven-year-old child was sexually “acting out” — tend to make C.W.’s
recantation less credible. Finally, we find that any “discrepancies” between C.W.’s
recantation and his trial testimony are the natural consequence of the imperfect
nature of human memory. Expecting a witness to recall precise details of numerous
interviews and aspects of an investigation that took place decades earlier in order to
determine that the witness is credible is unreasonable, generally, and therefore
amounts to an abuse of discretion in this case. It is particularly unreasonable when
the details took place when the witness was seven years old and therefore unable to
comprehend the significance of those details, and when the context of those details
was — regardless of any alleged wrongdoing — undoubtedly traumatic for that
witness. Our review of the record in this case reveals that numerous investigations
took place that summer, with multiple parties making accusations against multiple
individuals — neighbors, relatives, and friends alike. The timeline of events that
precipitated this case is complex, and the allegations throughout the record are far
from straightforward.
Additionally, we note that this case is unique in that unlike many
cases in which a recanting witness was in contact with, or received pressure from,
family members and friends of the defendant or the defendant himself, C.W. made
the decision to recant independently. This is highlighted by the fact that C.W. went
to several trusted individuals and organizations before ultimately getting in contact
with his father’s attorney. Further, while the recantation came after a significant
length of time, this is not necessarily unusual or suspicious given the circumstances.
C.W.’s thoughtful testimony reflected that his recantation was not based on a change
of heart that happened overnight; it was instead the result of significant and
prolonged introspection, because C.W. wrestled with his trial testimony for nearly
20 years. C.W. came forward to recant his childhood testimony after coming of age,
completing his education, and attempting to live with the burden of his childhood
testimony. Not only does the record reflect that C.W. was not pressured to recant
his testimony, it reflects the opposite; C.W. testified that as a child, he received
pressure from multiple family members, including his claimed assailant and his
aunt, to testify against his father.
Even viewing C.W.’s recantation with extreme suspicion, we find this
to be the exceptional case in which the recantation of the victim-witness warrants
reversal because it was unreasonable of the trial court to conclude that the
recantation was not credible. C.W. provided a complete and unambiguous
recantation of his trial testimony. While the trial court is correct that the jury was
in the best position to judge the credibility of the witnesses at Thompson’s trial,
including C.W., this fact does not relieve the trial court of its obligation to weigh the
credibility of C.W.’s recantation. We find it unreasonable for the trial court to have
concluded that the testimony of a seven-year-old child, facing threats from older
family members, was more credible than the testimony of a 29-year-old teacher.
For these reasons, we sustain Thompson’s first and third assignments
of error and reverse and remand the case for a new trial.
Because we have sustained Thompson’s first and third assignments
of error and reversed and remanded the case for a new trial, we need not address
Thompson’s second assignment of error.
Judgment reversed and case remanded for new trial.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
ANITA LASTER MAYS, A.J., and
SEAN C. GALLAGHER, J., CONCUR
