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IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Paaintiff-Appellee,

V.

RYAN K.1IVIDMER,

Case No. 2013-0342

On Appeal from the WarrenCounty Court of Appeals,Twelfth Appellate District

Court of Appeals Case No.CA2011-03-027

Defendant-Appellant.

STATE OF OHIO'S RESPONSE TO THE DEFENDANT-APPELLANT'S MOTION ANDMEMORANDUM IN SUPPORT OF JURISDICTION

DAVID P. FORNSHELL, #0071582Warren County Prosecuting AttorneyMichael Greer, #0084352 (Counsel of Record)Assistant Prosecuting AttorneyWarren County Prosecutor's Office500 Justice DriveLebanon, Ohio 45036(513) 695-1325Facsimile: (513) 695-2962michael.greer@co.warren.oh.us

MICHELE L. BERRY, #00819391 14 East Eight StreetCincinnati, Ohio 45202(513) 919-5315Facsimile: (513) 376-8752mberry@mberrylaw.com

COUNSEL FOR PLAINTIFF-APPELLEE,STATE OF OHIO

COUNSEL FOR DEFENDANT-APPELLANT,RYAN K. WIDMER

ie^AR,

MAR 2 5 Z013

CLERK OF COURTSUi'R^IIAE. OUURT OF ®HIO

y"rt0^ ^^^ COURTS^^RD(L Cd^^RI OF OHIO

EXPLANATION OF WHY THIS CASE IS NOT ONE OF PUBLIC OR GREAT GENERALINTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION

Appellee, State of Ohio, herein responds to the Memorandum in Support of

Jurisdiction of Appellant, Ryan K. Widmer, pursuant to S.Ct.Prac.R.' 3.2(A). This is not a

case of public or great general interest. Appellant is not a public figure, nor does this

case pose any substantial constitutionai question that would affect the public. Moreover,

this Court should not grant leave to appeal this felony case since Appellant's propositions

of law simply lack merit.

STATEMENT OF THE CASE AND FACTS

Appellant, Ryan K. Widmer, was indicted on August 15, 2008 by a Warren

County grand jury for the Aggravated Murder of -his wife, Sarah Widmer. Indictment, T.d.

V. After three trials, a jury found him guilty of Murder, and he was sentenced to 15

years to life in prison. Judgment Entry of Sentence, T.d. 277. Appellant appealed his

conviction to the Warren County Court of Appeals, Twelfth Appellate District. See State v.

Widmer, 12th Dist. No. CA201 1-03-027, 2012-Ohio-4342 (Widmer 1). The Twelfth

District affirmed his conviction. Id. at 1129 & 40. Appellant then sought to appeal to this

Court, which declined jurisdiction over Widmer I. State v. Widmer, S.Ct. No. 2012-1887,

2013-Ohio-553.

Prior to the second trial, Appeiiant issued subpoenas to Lt. Braley's then-current

and past employers, seeking his personnel, employment, training, and disciplinary records.

Both the State and Lt. Braley, through private counsel, moved to quash these subpoenas.

Motion to Quash Subpoenas for Hamilton Township Employment Records Related to

Jeffrey Braley, T.d. 350, p. 1.

On May 5, 2010, the Warren County Court of Common Pleas held an evidentiary

I Rules of Practice of the Supreme Court of Ohio.

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hearing regarding the motions to quash. The day-long hearing centered on an

employment application that was purportedly completed by Lt. Braley. The disputed

application (the application) was for a volunteer chaplain position with the Hamilton

Township Fire Department and was dated June 25, 1996. Hearing, 05/05/2010, T.p.,

pp. 73-74. However, the testimony indicated that the Hamilton Township officials did not

discuss the volunteer position with Lt. Braley until 1997. Id. at 41-44. At the hearing, Lt.

Braley testified that he did not recall filling out the application. Id. at 174, 176, & 199

(emphasis added.). Lt. Braley also admitted that the application contained inaccurate

information regarding him. Id. at 174-178.

In addition to Lt. Braley's testimony, Paul Bailey, a former police officer for the

Hamilton Township Police Department, testified. Id. at 125-152. Mr. Bailey testified that

'Trustee Gene Duvelius, who had formerly served as Township police chief, asked him to

investigate Lt. Braley's background, which Mr. Bailey did. Id. at 129-131. Mr. Bailey

testified that Trustee Duvelius directed him to investigate whether Lt. Braley had received

any extensive tactical training while in the military. Id. at 135. During cross-examination

by Ravert J. Clark, one of Appellant's many attorneys, Mr. Bailey reiterated that Trustee

Duvelius requested him to investigate Lt. Braley. Id. at 144. Mr. Bailey also testified that

Lt. Braley had received no such military training. ld. at 144.

After an extensive and complete hearing, the trial court granted the motions to

quash the subpoenas. Id. at 214-215.

Prior to the third trial, Appellant sought permission, pursuant to Evid.R.2 608(B), to

cross-examine Lt. Braley about the disputed application. Motion to Allow Confrontation of

Lead Investigator, T.d. 527. The trial court denied Appellant's motion. Order,

01 /21 /201 1, T.d. 543.

2 Ohio Rules of Evidence.

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_ ^.

While Widmer I was pending before the Twelfth District, Appellant filed with the

trial court Motions to Compel Grand Jury Testimony; for Leave to File Motion for New

Trial; for Post-Conviction Relief, a New Trial, Genetic DNA Testing, and an Evidentiary

Hearing. The Warren County Court of Common Pleas addressed all of Appellant's

pending motions. Decision and Entry, 01/17/2012, T.d. The trial court denied

Appellant's PCR petition, his motion for leave to file a motion for new trial, and his motion

for new trial. Id. at 18. By implication, the trial court denied the remainder of Appellant's

post-trial motions.

After the trial court denied Appellant's motions, he again appealed to the Twelfth

District. See State Y. Widmer, 12th Dist. No. CA2012-02-008, 2013-Ohio-62(Widmer II).

The Twelfth District affirmed the trial court's decision. Id. at I¶1 & 174.

ARGIJMENT

Res onse to Pro ositions of Lpw I& Il: The trial court did not abuse its

discretion and did not violate due process when it denied Appellant's

motion to test the victim's DNA.

In Appellant's first and second propositions of law, he asserts that his due process

rights were violated regarding his motion to test the victim's DNA. He also argues, for

numerous reasons, that the trial court abused its discretion.

Appellant argues that the spirit of R.C. 2933.82 required the trial court to grant

his DNA motion. Governmental agencies that retain evidence are required by R.C.

2933.82(B)(1) to preserve the biological evidence regarding Murder cases. But that

statute does not address motions for DNA testing nor does it require trial courts to grant

such motions. The testing of an inmate's DNA is governed by R.C. 2953.71 et seq.

Relying on 2005 Ohio Atty. Gen. Ops. No. 2005-009, Appellant argues that,

because he timely filed his PCR petition, the trial court was required to grant his DNA

motion. The Attorney General's opinion addressed former R.C. 2953.71-.81, which dealt

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with the testing of an inmate's DNA not the testing of a victim's DNA. So that opinion did

not require the trial court to grant Appellant's DNA motion. Even the most recent version

of R.C. 2953.71et seq. solely addresses the testing of an offender's DNA.

Further, in this case, DNA testing would not have been outcome determinative, nor

would it have exonerated Appellant. Assuming Sarah had Long QT, it would not have

been relevant to this case since it would not have changed nor would it have explained

the other evidence which led the jury to conclude that Appellant murdered Sarah. Long

QT would not have explained the 91 1 call and the inconsistencies contained therein. Long

QT would not have explained the observations of the first responders that Sarah's body

was dry but her hair was wet, that the bathtubwas dry, that the bathroom was dry, and

that the carpet, on which Sarah's lifeless body rested, was dry. Long QT would not have

explained the fact that Sarah's hands and feet showed no evidence of pruning. Long QT

would not have explained the fact that Sarah had bruises and hemorrhages on the left

and right side of her neck, on the back of her neck, and on the front of her neck, which

were inconsistent with life saving efforts but were indicative of foul play.3 And Long QT

would not have explained why Appellant admitted that he killed Sarah. Long QT would

not have explained or changed any of this evidence; evidence that ultimately proved

beyond a reasonable doubt that Appellant murdered Sarah 4

Further, during all three trials, Appellant elicited testimony from numerous medical

experts regarding several cardiac, neurological, and seizure disorders that could have

369. . . hemorrhages in the anterior neck muscles which are often seen in cases ofstrangulation do not occur in drowning and should aiways raise suspicion of foul play. "

WERNER U. SPITZ, MD, ET AL., SPITZ AND FISHER'S MEDICOLEGAL INVESTIGATION OF

DEATH, (4fh ed. 2006), pp. 861-862.

4 While Appellant claims that Long QT would have been outcome determinative, it is

worthy of note that neither of his experts, Dr. Balko or Drg kor and Dr? Spitz hadoagong

was important enough to order DNA testing. Both D r.

history of involvement with this case.

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possibly contributed to a sudden, unexplained death. The jury heard testimony about

numerous speculations based of these disorders but rejected them since the evidence

showed that they were not reasonable possibilities. One of Appellant's speculations-

heard and rejected by the jury-was Long QT.

Long QT syndrome is a rare and generally hereditary form of heart disease.

Barron v. Adams, 2008 U.S. Dist. LEXIS 43511, p. *8 (E.D.CaI. 2008). It is an elongation

of the heart's QT interval. Garcia ex rel. Garcia v. La Farge, 119 N.M. 532, 535, 893

P.2d 428 (1995). The QT interval measures the period of the electrical activity of the

lower chambers of the heart, the ventricles. Id. In other words, the QT interval measures

how long it takes for the tieart, after one beat, to return to the necessary electrical

condition to take the next beat. Barron, 2008 U.S. Dist. LEXIS 4351 1, at *8.

An electrocardiogram (EKG) is used to measure the QT interval. Id. Long QT is

sometimes characterized by fainting caused by exercise and may cause a heart

arrhythmia which in turn can iead to cardiac arrest and possible sudden death. Garcia,

119 N.M. at 535, and Barron, 2008 U.S. Dist. LEXIS 43511, at *8. Stress can also

aggravate Long QT, leading to stress-induced cardiac arrest. Pierce Y. Soufhern Pacific

Transp. Co., 823 F.2d 1366, 1367 (9th Cir. 1987). Sarah suffered from none of these

symptoms.

At the third trial, Dr. Michael G. Balko, Appellant's neuropathologist, testified

about Long QT.5 Third Trial, T.p., Vol II, pp. 927-931. He testified that he thought Sarah

may have had Long QT 7, a rare form. Id. at 932. Long QT 7 is associated with

numerous morphological features, but the doctor testified that Sarah had possessed only

one, a cleft pallet (repaired when she was an infant). Id. at 936. He admitted that one

of the primary triggers for Long QT was physical exertion. Id. at 977. But he did not

5 Dr. Balko also testified at the first trial in 2009 but not the second trial in 2010.

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attribute any such exertions to Sarah prior to her death. He aiso examined Sarah's

childhood EKG tracing performed by Dr. Turri and agreed with Dr. Turri's impression that

it was normal. Id. at 978, State's Exhibit 68, & Records DNA motion. Nor did her medical

records, including a physical examination conducted less than six weeks prior to her death,

show any abnormalities. State Exhibit 3. Dr. Balko's trial testimony did not support

Appellant's DNA motion, nor did his post-trial affidavit, which was replete with

speculation, since he could not opine to a reasonable degree of medical certainty that

Long QT caused Sarah to accidentally drown.

Regarding due process, the United States Supreme Court has held that convicted

criminals do not have a freestanding, substantive due processright to DNA evidence. DA's -

Office v. Osborne, 557 U.S. 52, 54, 129 S.Ct. 2308, 174 L.Ed.2d 38 ( 2009). In this case,

Appellant has failed to demonstrate that Ohio's procedures for postconviction relief are

inadequate.

For the reasons stated above, Appellant's due process rights were not violated, nor

did the trial court abuse its discretion when it denied his motion for DNA testing.

Consequently, Appellant's first and second propositions of law are without merit. This

Court should not accept jurisdiction over them.

Res onse to Pro ositions of Law III & IV: Appellant's rights were notvioiated because Lt. Braley did not commit perjury, and the State did not

suppress evidence, favorable or otherwise.

In Appellant's third and fourth propositions of law, he argues that his due process

rights were violated because Lt. Braley committed perjury during the May 5, 2010

hearing and because the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1 194,

10 L.Ed.2d 215 (1963) by failing to produce allegedly exculpatory evidence about Lt.

Braley, his background, and the disputed application.

To support his arguments, Appellant claims that his allegations constitute new

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evidence about Lt. Braley, but these allegations are not new evidence. They are merely

conclusory opinions espoused by Appellant's various attorneys. Appellant claims that his

o inions are based on the June 1, 2011 report of DouglasMiller (the Miller report), an

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attorney hired by Hamilton Township to investigate Lt. Braley, and on the September 8,

2011 affidavit of Dennis K. Waller (the Waller affidavit).

Regarding perjury, R.C. Code 2921.11provides that a person commits perjury

when, in any official proceeding, that person knowingly makes a false statement under

oath or affirmation or that person knowingly swears or affirms. the truth of a false

statement previously made, when either statement is material. A false statement is

material, regardless of its admissibility, if it can affect, the outcome of the proceeding:

R.C. 2921.1 1(B).

At the May5, 2010 hearing, Lt. Braley admitted that some of the information

included in the disputed application was false. He did not knowingly swear or affirm that

any false statements contained in the disputed application were true. Further, Lt. Braley

testified that he did not recall filling out the application.

Assuming arguendo that Lt. Braley made false statements during theMay 5, 2010

hearing, none of the jurors in any of the three trials ever heard those alleged false

statements. The United States Supreme Court made it clear in Napue v. Illinois,360 U.S.

264, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959), that the State is prohibited from

knowingly using false testimony to obtain a conviction. Since the alleged false testimony

was never presented at trial, it was impossible for the State to have used those alleged

false statements to obtain Appellant's conviction for Murder. There is no reasonable

likelihood that Lt. Braley's alleged false testimony affected the judgment of any of the

427 U.S.jurors in this case because none of the jurors ever heard it. See

U.S. v. Augurs,

97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (A convictionobtained by the

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prosecution's knowing use of perjured testimony is fundamentally unfair and reversal is

required if there is any reasonable iikelihood that the false testimony could have affected

the judgment of the jury.).

Appellant claims that the State violated Brady by not disclosing that Lt. Braley had

fabricated his background on the disputed appiication and by not disclosing that Lt.

Braley had committed perjury at the May 5, 2010 hearing. These statements are not

evidence; instead, they are opinions held by Appellant's various counsel. And they are

hardly new opinions at that. The record conclusively demonstrates that Appellant's various

attorneys had the disputed application in their possession well before the second trial and.

that they had claimed that Lt. Braley had perjured himself at the /VMay 5 hearing. To put it

simply, the State did not, and could not, suppress any evidence regarding the opinions

held by Appellant's counsel.

Appellant also claims that the State suppressed the fact that Lt. Braley fabricated

a story about serving in Special Forces in order to obtain his current post. Once more, "Lt.

Braley fabricated a story about serving in Special Forces in order to obtain his current

post" is not evidence that the State could have suppressed but is an opinion-and a

conclusory one at that-held by Appeilant's various attorneys. At the May 5, 2010

hearing, Paul Bailey testified that Trustee Duvelius had asked him to investigate Lt.

Braley's background, including whether Lt. Braley had received tactical training while in

the military. One of Appellant's counsel, Ravert J. Clark, cross-examined Paul Bailey

about whether Lt. Braley had received advanced tactical training, and Mr. Bailey testified

that Lt. Braley had not received such training. Mr. Bailey testified about the Special

Forces rumor, meaning Appellant's various attorneys were well aware of it prior to the

second trial. The State did not suppress any evidence regarding this rumor.

Even if the Special Forces rumor could be considered potential impeachment

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evidence, the State was not required by Brady to unearth such rumors for Appellant. The

State was not required, under Brady, to exhaustively investigate Lt. Braley's background

to discover innuendo, gossip, or every rumor about him or the disputed application. See

U.S. v. Robinson, 627 F.3d 941, 952 (4th Cir. 2010). These issues strictly relate, if at all,

to Lt. Braley's general credibility regarding collateral matters, and these collateral issues

do not relate to any issue to which Lt. Braley testified at trial. Moreover, Lt. Braley was

not the State's "lynch-pin" witness. His testimony provided little more than a general

narrative for the jury of the police's activity in this case. Lt. Braley was not solely

responsible for collecting most of the evidence in this case, and there is not a shred of

evidence, in the record or outside the record, that he fabricated or altered any evidence

or that he even had the opportunity to do so.

Assuming arguendo that the State suppressed information about Lt. Braley, it does

not matter because none of these issues were material to this case. To be material, there

must be a reasonable probability that, had the evidence been disclosed to the defense,

the result of the trial would have been different. Braun, 2009-Ohio-4875 at ¶66.

Appellant cannot make that showing at all because, despite his assertions to the contrary,

these matters dealt strictly with Lt. Braley's credibility, his reliability as a witness.

Impeachment evidence can be material under Brady where the witness supplied

the only evidence linking the defendant to the crime or where the witness supplied the only

evidence regarding an essential element of the crime. U.S. Y. Avellino, 136 F.3d 249,

256-257 (2nd Cir. 1998). Impeachment evidence may be material only where the

defendant's guilt or innocence turns upon the witness's testimony. Lt. Braley did not supply

the only evidence linking Appellant to the murder nor did Braley supply the only evidence

regarding an essential element of the offense of Murder. Lt. Braley supplied little more

than a general overview about the investigation. In fact, all of Lt. Braley's consequential

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testimony was corroborated by other witnesses. Lt. Braley was not the centerpiece of the

State's case. Appellant would have this Court believe that Lt. Braley was the State's most

important witness when, in fact, he was not. The record from the first, second, and third

trials demonstrates conclusively that the State relied on the 911 tape, the testimony of the

first responders, and the testimony of its medical experts to prove that Appellant

murdered his wife. Despite the fact that Lt. Braley was the "lead investigator",

Appellant's guilt did not turn upon Lt. Braley's testimony. In other words, Lt. Braley's

credibility was not material because the jury's evaluation of his truthfulness and reliabiiity

was not determinative of Appellant's guilt or innocence. Any issues material to this case

were fully aired before the jury.

Regarding Napue Y. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959),

and Kyles Y. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), neither are

dispositive in this case. Napue is not dispositive since Lt. Braley did not commit perjury..

Therefore, the State could not have possibly used false testimony to obtain Appellant's

conviction for Murder nor could the State have possibly known about the alleged false

testimony since it did not exist.

Nor is Kyles dispositive of this case. All of the evidence suppressed in Kyles related

directly to the case and the investigation of the murder. However, the "evidence", which

includes rumors, gossip, and innuendo, allegedly suppressed in this case dealt with Lt.

Braley's credibility about collateral matters that occurred many years before Appellant

murdered his wife. These collateral matters did not relate to the Appellant and did not

relate to the investigation of this case.

Despite evidence to the contrary, Appellant argues that the State had knowledge

of Lt. Braley's alleged false statements because Lt. Braley knew about those statements

and knew they were false. Appellant asserts that Lt. Braley's knowledge was imputable

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to the State because Braley was one of the investigators in the case. This is specious

reasoning at best and would impose an unacceptable burden on the State. See Robinson,

627 F.3d at 952. "Courts have routinely refused to extend Brady's constructive

knowledge doctrine where doing so would cut against the agency principles underlying

imputed knowledge and would require prosecutors to do full interviews and background

checks on everyone who touched the case." Id.

Regarding the Miller report, it addressed two issues: the disputed application and

the Special Forces rumor. As to the application, the Miller report adds nothing new, and it

certainly did not establish that Lt. Braley committed perjury at the May 5, 2010 hearing.

As for the Special Forces rumor, Paul Bailey testified to that at the May 5 hearing. The<

Miller report added nothing of substance about that rumor. The Miller report was not new

evidence since Appellant's attorneys were aware of the rumor and aware of the disputed

application before the second trial. Moreover, the Miller report would have been

inadmissible under Evid.R. 608(B) since it constituted extrinsic evidence of specific instances

of the conduct of a witness for the purpose of attacking the witness's truthfulness.

Regarding Mr. Waller's affidavit and his opinions regarding Lt. Braley, he merely

parroted-or, as the Twelfth District put it, regurgitated-the same opinions that

Appellant's various counsel have espoused since before the second trial. Regarding Mr.

Waller's opinions about Dr. Uptegrove, Waller merely regurgitated the cross-examination

conducted in the third trial by Lindsey Gutierrez, one of Appellant's many attorneys. Mr.

Waller's affidavit was not "new evidence".

Regarding Mr. Waller's speculation that Lt. Braley mishandled the bathtub in this

case, Waller failed to point to a shred of evidence-either in the record or outside the

record, new or otherwise-that would have supported this assertion. In fact, at the third

trial, Officer Quillan Short testified that he was present in the bathroom when the warrant

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was executed and when the tub was dusted for prints. Third Trial, Vol. I, Binder IV, T.p., p.

1254-1255. He testified that he and the other officers wore gloves when they examined

the tub. Id. He testified that he was present when Danny Harness of the Miami Valley

Regional Crime Laboratory applied super glue to the tub and analyzed it for prints. Id.

at 1257-1259. Officer Short was also present w-hen the tub was removed from the house.

Id. at 1259. Officer Short testified that precautions were taken to avoid tampering or

contaminating the tub once it had been removed. Id. There was no evidence that any

police officer, let alone Lt. Braley, mishandled the tub. Without any real evidence,

Waller's speculations and inferences about Lt. Braley were utterly meaningless, failing to

bridge the gap between Lt. Braley's alleged lack of credibility and the integrity of the

investigation; faiiing to show a reasonable probability of a different outcome; and failing

to show materiality for Brady purposes. Moreover, Waller's affidavit and the speculations

contained therein would have been inadmissible under Evid.R. 608(B) since they constituted

extrinsic evidence of specific instances of the conduct of a witness for the purpose of

attacking the witness's truthfulness.

For the foregoing reasons, Appellant's third and fourth propositions of law lack

merit and this Court should not exercise jurisdiction over them.

Response to Proposition of Law V: The trial court did not abuse its

discretion and did not violate !►ppeiiant's due process rights when it

denied his motion to compel the production of the grand jury

transcripts.

In Appellant's fifth proposition of law, he asserts that the trial court violated his

due process rights and abused its discretion when it denied his motion to compel

production of the grand jury testimony of Lt. Braley and Dr. Uptegrove. Appellant claims,

based on his arguments regarding Lt. Braley's credibility, that he needed the grand jury

transcripts to determine whether Lt. Braley made false statements to the grand jury and to

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determine whether or not Lt. Braley or Dr. Uptegrove gave testimony before the grand

jury about the extent of the information Lt. Braley gave to Dr. Uptegrove that Dr.

Uptegrove used to determine the manner of death.6 Appellant claims that this outweighs

the need to maintain grand jury secrecy.

It has long been recognized in the State of Ohio that there is only a limited

exception to the general rule of grand jury secrecy: a defendant is not entitled to review

the grand jury transcripts unless the ends of justice requires it, and the defendant has

shown a particularized need for disclosure which outweighs the need for secrecy. State v.

Lang, 129 Ohio St. 3d 512, 201 1-Ohio-4215, 945 N.E.2d 596,J41. A particularized

need has been established when the circumstances show a probability that failure to

provide the grand jury transcript will deny the defendant a fair trial. Id. A trial court's

decision denying the production of the grand jury's transcripts will not be reversed absent

an abuse of discretion. State v. Coley, 93 Ohio St.3d 253, 261, 754 N.E.2d 1 129 (2001).

With his request, Appellant was merely seeking evidence that would logically and

legally connect his allegations regarding Lt. Braley's lack of credibility to the integrity of

the investigation. And, despite his assurance to the contrary, Appellant was obviously

fishing for evidence that would bolster the speculations and inferences espoused by

Appellant's attorneys about Lt. Braley. Such a fishing expedition does not rise to the level

of a particularized need that would outweigh the need to maintain the grand jury's

secrecy as there has been no showing of a probability that the failure to provide

Appellant with the grand jury transcripts would have denied him a fair trial. See State v.

Fry, 125 Ohio St. 3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶69 (Defendant's

speculative claim that grand jury must have considered favorable or exculpatory evidence

6 Despite Appellant's claims, none of his numerous counsel asked the trial court to reviewthe witnesses' grand jury testimony following their testimony at any of the three trials.

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did not establish a particularized need.); and State v. Hancock, 108 Ohio St. 3d 57,

2006-Ohio-160, 840 N.E.2d 1032, ¶71 (Defendant's claim that grand jury witnesses

made statements to the police that may have been inconsistent with their other statements

or may have contained unspecified exculpatory evidence did not constitute a

particularized need.).

Since Appellant failed to demonstrate a particularized need for the grand jury

transcripts, the trial court did not abuse its discretion and did not violate his due process

rights when it denied his motion to produce those transcripts. Consequently, Appellant's

fifth proposition of law is without merit, and this Court should not accept jurisdiction

regarding it.

Response to Proposition of Law VI: The trial court did not abuse itsdiscretion when it denied Appellant's various post-trial motions without

holding an evidentiary hearing.

In Appellant's sixth proposition of law, he claims the trial court abused its discretion

when it denied his motions without holding an evidentiary hearing. Appellant believes that

he had established substantive grounds for relief requiring a hearing.

A trial court is not required to hold an evidentiary hearing every time a criminal

defendant files a postconviction relief petition. State v. Wagers, 12th Dist. No. CA201 1-

08-007, 2012-Ohio-2258, ¶14, see State v. Calhoun, 86 Ohio St. 3d 279, 282, 714

N.E.2d 905 ( 1999). To garner a hearing, the petitioner must demonstrate that substantive

grounds for relief exist that would merit a hearing based on the petition, its supporting

affidavits, and the files and record in the case. Id. When an appellate court reviews the

denial of a PCR petition without a hearing, it applies the abuse of discretion standard. Id.

at ¶15. The appellate court should not overrule the trial court's finding regarding a PCR

petition if that finding is supported by competent and credible evidence. Id.

None of the arguments raised in Appellant's various post-trial motions had merit.

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As such, Appellant failed to show the necessary substantive grounds for reiief to merit an

evidentiary hearing. Thus, the trial court did not abuse its discretion when it denied his

postconviction motions without holding a hearing. Consequently, Appellant's sixth

proposition of law is without merit, and this Court should not accept jurisdiction over it.

CONCLUSION

For the foregoing reasons, this Court should affirm the decision of the Warren

County Court of Appeals, Twelfth AppellateDistrict, and neither accept jurisdiction nor

grant leave for the appeal of Ryan K. Widmer since his propositions of law lack merit.

Moreover, this Court should not accept jurisdiction over this appeal because Appellant has

neither raised a substantial constitutional question nor presented an issue`of public-or

great general interest.

Respectfully submitted,

MICHAEL GREER, #0084352Assistant Prosecuting Attorney

Warren County Prosecutor's Office

500 Justice DriveLebanon, Ohio 45036

(513) 695-1325

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CERTIFICATE OF SERVICE

I, hereby certify that a copy of the foregoing was mailed by Ordinary mail to the

Defendant-Appellant's cou sel, Ms. Michele L. Berry, 114 East Eight Street, Cincinnati,

Ohio 45202 on this 22 n day of March, 2013.

.'y

MICHAEL GREER, #0084352Assistant Prosecuting Attorney

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