FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CR-2013-08-2314
BEVAN WALSH, PROSECUTING ATTORNEY, AND JACQUENETTE S. CORGAN,
ASSISTANT PROSECUTING ATTORNEY, FOR APPELLANT.
MICHAEL T. CALLAHAN, ATTORNEY AT LAW, FOR APPELLEE.
DECISION AND JOURNAL ENTRY
A. TEODOSIO JUDGE.
Appellant, The State of Ohio, appeals from the judgment of
the Summit County Court of Common Pleas, granting Appellee,
James P. Bressi, a new trial. This Court affirms.
This Court previously set forth the underlying facts and
procedural posture of this case as follows:
Summit Pain Specialists is a medical organization that
specializes in the treatment of individuals suffering from
chronic pain. Before the events giving rise to this appeal,
Bressi owned Summit Pain Specialists and operated it
alongside his business partner, Dr. Robert Geiger. Bressi
received his training in osteopathic medicine and frequently
treated his patients using osteopathic manipulative treatment
("OMT"), a technique wherein an individual uses his
hands to stretch and exert pressure on various muscles and
joints to achieve optimal alignment and relieve pain.
Starting in 2012, individuals began contacting the Stow
Police Department to report that Bressi had engaged in
inappropriate sexual contact with them when they came to him
for treatment. The reports launched an intensive
investigation led by Detective Jeff Swanson, who interviewed
numerous patients and other individuals who had contact with
Bressi. In March 2013, amidst accusations of inappropriate
conduct and his breach of an office policy requiring the
presence of chaperones during OMTs, Bressi was terminated
from Summit Pain Specialists. Sixth months later, the Stow
Police Department's investigation culminated in his
A grand jury indicted Bressi on two counts of rape, thirteen
counts of gross sexual imposition, and twelve counts of
sexual 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 his staff. The
incidents underlying the twenty-seven counts were alleged to
have occurred at different times between May 2011 and March
The jury found Bressi guilty of a single count of sexual
imposition and not guilty of the remaining twenty-six counts
against him. The court sentenced Bressi to fifty-nine days in
jail, five years of probation, and a fine. Additionally, the
court classified him as a tier one sexual offender.
State v. Bressi, 9th Dist. Summit No. 27575,
2016-Ohio-5211, ¶ 2-6.
Bressi's conviction for sexual imposition was affirmed on
appeal. Id. at ¶ 43. He appealed this
Court's decision to the Supreme Court of Ohio, but 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 account of newly discovered evidence. After a
hearing on the matter, the trial court found that Bressi had
demonstrated by clear and convincing proof he was unavoidably
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 trial based upon newly discovered evidence,
which the court subsequently granted despite opposition from
This Court granted the State of Ohio leave to appeal from the
trial 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 granting 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 review.
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.
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.
Crim.R. 33(A) allows a defendant to move for a new trial when
his 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 which 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, the defendant must show that the
"(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. Tolliver, 9th Dist. Lorain No. 16CA010986,
2017-Ohio-4214, ¶ 18, quoting State v.
Petro,148 Ohio St. 505 (1947), ...