[Cite as State v. Stepp, 2020-Ohio-6901.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




 STATE OF OHIO,                                   :

        Appellee,                                 :         CASE NO. CA2020-05-062

                                                  :              OPINION
     - vs -                                                      12/28/2020
                                                  :

 BRIAN T. STEPP,                                  :

        Appellant.                                :




       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2004-02-0266


Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Brian T. Stepp, #A548413, Richland Correctional Institution, P.O. Box 8107, Mansfield,
Ohio 44905, pro se



        HENDRICKSON, P.J.

        ¶1     Appellant, Brian Stepp, appeals from the decision of the Butler County Court

of Common Pleas denying his motion for leave to file a delayed motion for new trial. For

the reasons outlined below, we affirm the trial court’s decision.

        ¶2     In April 2004 Stepp was indicted for three counts of rape, three counts of

kidnapping, one count of sexual battery, and three counts of impersonating a peace officer.
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Prior to trial, the three counts of impersonating a peace officer were dismissed. In 2007,

following a four-day jury trial, Stepp was found guilty of the remaining counts of the

indictment and the trial court imposed an aggregate 55-year prison sentence. Stepp

appealed his conviction and sentence, and this court affirmed. State v. Stepp, 12th Dist.

Butler No. CA2007-05-117, 2008-Ohio-4305, ¶ 97. Our decision in that appeal summarized

the facts leading to Stepp's conviction as follows:

              In late 2003, C.T. was working as a prostitute in the city of
              Hamilton, in Butler County, Ohio. One night in November of that
              year, she was standing near the intersection of Lincoln Street
              and Dixie Highway when a man in a red car pulled up to her and
              offered her a ride. C.T. got into the man's car, believing he was
              going to be a "customer."

              Immediately after she did, the man started driving very fast
              down Lincoln Street and towards Route 4, onto which he turned
              north. C.T. began to get nervous after the man refused to tell
              her what "services" he wanted her to perform for him. When
              she again asked him what he wanted, the man pulled out a
              badge and told her she was under arrest for prostitution. He
              ordered her to put on her seatbelt, to lock her door, and not to
              think about running, because he had a gun, and he was "allowed
              to shoot her" and even "kill" her, and "nobody will think twice
              about it."

              The man drove C.T. to the parking lot of a "police station" in
              Liberty Township and told her she could do him a "favor" or he
              could have her arrested. When C.T. refused to do him a favor,
              the man drove out of the police station's parking lot and then to
              a corn field, where he ordered her to get out the car and to get
              undressed. He then forced her to perform oral sex on him.

              Afterwards, the man told C.T. stories about different scenarios
              he allegedly had encountered as a police officer. He then
              ordered her to get dressed, handcuffed her, and placed her back
              in his car. When he tried to frisk C.T., she tried to escape. He
              eventually overpowered her by kicking her and punching her in
              the head. He then drove out of the corn field and over to a small
              house.

              At the house, the man led C.T. to a bathroom and ordered her
              to take a shower. When he left the room, C.T. tried to escape
              by climbing out the bathroom window; however, when the man
              saw what she was doing, he grabbed her hair, pulled her back


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inside the bathroom, slapped her, and threatened her. He then
stayed until she got into the shower. After C.T. finished
showering, the man made her come into the living room, where
he forced her to have intercourse with him. After telling her
more fictitious stories about his experiences as a police officer,
he ordered C.T. to get dressed and then drove her to a
convenience store near Cincinnati-Dayton Road, where he
dropped her off.

H.K. was another prostitute who worked in Hamilton at this time.
On an early evening in late December 2003 or early January
2004, H.K. was standing in the area of North 7th Street when a
man in a red car pulled up to her and offered her a ride. After
H.K. got into the car, the man told her someone named "Jewel"
told him she (H.K.) was a "snitch," and "a drug dealer had hired
him to beat [her] up." At that point, H.K. believed that the man
was threatening her life.

As the man drove H.K. into the city of Fairfield and onto
Bobmeyer Road, he told her he was a police officer and showed
her a badge. He also showed her a knife he had with him and
told her he was going to hurt her because he had been hired to
do so. The man drove to the end of a lane off Bobmeyer Road,
back by a small house or church, and parked there. He then
forced H.K. to perform oral sex on him.

***

J.G. was another prostitute who worked in Hamilton at the time
of these events. One afternoon in November 2003, she was
standing in the area of Sycamore and Ludlow Streets when she
saw a red car that "kept circling." When the car finally pulled
over, J.G. got in.

Shortly thereafter, the man who was driving the car told J.G. he
was a police officer. When she asked him to stop the car and
let her out, the man refused to let her leave. He drove her to
Tylersville Road, turned onto a dirt road, and then drove to a
corn field where he parked. The man went to the passenger
side of the vehicle, pressed his forearm against J.G.'s neck,
pulled her pants down, and raped her.

***

C.T., H.K., and J.G. did not immediately report these crimes to
the police. However, on February 12, 2004, H.K. finally told the
police what had happened to her on the night she was raped
when she was being questioned by them on an unrelated
matter. She gave the police the license plate number of the red
car that was driven by the man who sexually assaulted her. The

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                 police tracked the license plate number to Brian Stepp.
                 Detective Ken Hardin showed H.K. a photo array of suspects
                 that contained Stepp's photograph and asked her to identify the
                 man who raped her. It took H.K. only "a few seconds" to pick
                 out Stepp's photograph.

                 Within the next five days, the police also interviewed C.T. and
                 J.G., who told the police what Stepp had done to them in
                 November 2003. When Detective Hardin showed C.T. and J.G.
                 a photo array that contained Stepp's photograph, both of them
                 picked out Stepp's photograph and identified him as the man
                 who had raped them.

Id. at ¶ 2-14. ¶3

     Since Stepp's convictions and sentence were upheld on appeal, Stepp has

continuously filed a variety of pleadings in both federal and state courts in an attempt to set

his convictions and/or sentence aside, but to no avail. See Stepp v. Warden, S.D.Ohio No.

1:10-cv-282, 

2011 U.S. Dist. LEXIS 131123

(Nov. 14, 2011); State v. Stepp, 12th Dist.

Butler No. CA2013-12-226 (Feb. 02, 2015) (Accelerated Calendar Judgment Entry); State

v. Stepp, 12th Dist. Butler No. CA2016-12-232 (May 1, 2017) (Accelerated Calendar

Judgment Entry); Stepp v. Warden, S.D.Ohio No. 1:16-cv-283, 

2018 U.S. Dist. LEXIS 74813

(May 3, 2018).

       ¶4      In August 2019, approximately 12 years after his initial appeal, Stepp moved

the trial court for leave to file a delayed motion for new trial based upon newly discovered

evidence. A few weeks later, in September 2019, Stepp moved the trial court to withdraw

his motion.

       ¶5      In November 2019, Stepp filed a second motion for leave to file a motion for

new trial based on newly discovered evidence. Stepp also filed an affidavit in support of

his motion. In the affidavit, Stepp alleged he had recently obtained exculpatory evidence

as a result of his "friend[s] and/or family * * * asking questions and filing public records

requests[.]" Stepp attached the alleged newly-acquired evidence to his affidavit, which



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included a portion of Detective Hardin's testimony at trial, summaries of allegations against

Stepp by two additional complainants, R.R. and S.S., an Inmate Services Request Form

completed by S.S. ("inmate request form"), and a portion of Detective Hardin's criminal

investigation report regarding Stepp's case.

       ¶6      With regard to R.R., the criminal investigation report attached to Stepp's

affidavit indicated Detective Hardin interviewed R.R. on February 19, 2004. A summary of

the interview was included in the report.

       ¶7      During the interview, R.R. indicated that on or about October 27, 2003, she

was approached by a man in a small red car in regards to sex. According to R.R., she

refused the man's offer and he advised her she was under arrest for soliciting and flashed

her a sliver shield. At that point, R.R. got into the man's car and he indicated he was almost

off-duty and threatened to take her to "his office" near Princeton Road. The man proceeded

to drive R.R. to a park near the woods, where he told R.R. that if she performed oral sex on

him, he would let her go. Fearing for her life, and believing the man was a police officer,

R.R. agreed. Afterward, the man admitted he was not a police officer and drove to his

home, with R.R., to retrieve something. While at the man's home, R.R. made a few calls

and went to the bathroom. When R.R. left the bathroom, the man grabbed her and "start[ed]

to force himself on her to have sex." Ultimately, the man did not have sex with R.R., and

instead drove her to Hamilton where he dropped her off. Prior to exiting the car, R.R. asked

the man what his name was. At that point, the man showed her his driver's license which

identified his name as Brian. Near the end of the report Detective Hardin indicated R.R.

looked at the photo line-up and "picked Stepp."

       ¶8      Regarding S.S., the inmate request form attached to Stepp's affidavit stated

the following:

                 Brian Stepp the man that is incarserated (sic) RAPED me 2

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              times [and] broke my pinky finger w/ (sic) a friend of his in an
              alley behind McDonalds on Rt. 4. He also raped me off
              Chestnut St after posing as a H.P. Officer in an alley [and] made
              me perform oral sex on him forcefully after picking me up on
              East Ave. He was looking to buy sex for 20.00 from me. I got
              in the car w/ (sic) him [and] this is what he did to me not counting
              my friends also I would love to see him pay.

The inmate request form is dated July 2, 2004 and indicates it was forwarded to Detective

Hardin on July 8, 2004.

       ¶9   Stepp also attached to his affidavit a transcript of Detective Hardin's testimony

at trial. According to the portion of the transcript attached, Detective Hardin testified that

four additional women came forward and complained of an offense against Stepp, but they

never "picked him out." Detective Hardin further testified he had no record of the identity of

the additional women that came forward and that, in January 2004, he had no record, notes,

or recorded information regarding the stories those women provided to him, and that no

recorded information related to their allegations existed.

       ¶10 According to Stepp's motion, his discovery of the investigation report and

inmate request form entitles him to a new trial because the documents prove Detective

Hardin was aware of additional complainants that could identify Stepp, contrary to the

detective's testimony at trial.

       ¶11 In February 2020, Stepp moved the trial court to amend his motion for leave

to file a delayed motion for a new trial, claiming he wished to include an additional claim for

relief based upon the state's response to his previous motion. The new claim alleged the

state knowingly presented the false testimony of Detective Hardin, which is prohibited by

Napue v. Illinois, 

360 U.S. 264

, 

79 S. Ct. 1173

(1959).

       ¶12 In May 2020, the trial court denied each of Stepp's pending motions. In its

written decision, the trial court found the following: (1) Stepp had failed to establish by clear

and convincing evidence that he could not have learned of the existence of the newly

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discovered evidence, and thus was unavoidably prevented from filing his motion for new

trial within the 120-day period; (2) Stepp had failed to seek leave to file his motion for new

trial within a reasonable time after the 120-day period; (3) Stepp had failed to demonstrate

that the newly-discovered "withheld evidence" disclosed a strong probability that it will

change the result of the original trial if a new trial is granted; (4) The newly-discovered

"withheld evidence" merely impeaches or contradicts former evidence; (5) The "withheld

evidence" is inculpatory, and therefore is not material to Stepp's guilt; and (6) Stepp was

not entitled to a new trial under Napue v. Illinois.

        ¶13 Stepp now appeals from the trial court's decision denying his motion for leave

to file a delayed motion for a new trial, raising the following assignment of error for our

review:

        ¶14 THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN VIOLATION OF

THE SIXTH, FIFTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION WHEN IT DENIED APPELLANT LEAVE TO FILE HIS NEW TRIAL

MOTION.

        ¶15 On appeal, Stepp claims the trial court abused its discretion in denying his

motion for leave to file a delayed motion for a new trial.

        ¶16 An appellate court reviews a trial court's denial of leave to file a delayed

motion for new trial under an abuse of discretion standard. State v. Young, 12th Dist. Butler

No. CA2018-03-047, 2019-Ohio-912, ¶ 32. An abuse of discretion is more than an error of

law or judgment. State v. Williams, 12th Dist. Butler No. CA2003-01-001, 2003-Ohio-5873,

¶ 16.     In order to constitute an abuse of discretion, the court's attitude must be

unreasonable, arbitrary, or unconscionable.

Id. ¶17

According to Crim.R. 33(B), a motion for a new trial based on a claim of newly-

discovered evidence must be filed within 120 days after the day upon which the verdict was

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rendered. The rule permits an untimely motion if the trial court finds by clear and convincing

evidence that the defendant was unavoidably prevented from discovering the evidence

within the given time frame. Crim.R. 33(B). Clear and convincing evidence is the measure

or degree of proof that is more than a mere preponderance of the evidence, but not to the

extent of such certainty as is required beyond a reasonable doubt, which will produce in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.

State v. Belcher, 12th Dist. Warren No. CA2016-12-102, 2017-Ohio-6943, ¶ 14.

       ¶18 Therefore, Stepp must establish by "clear and convincing proof that [he] was

unavoidably prevented from the discovery of the evidence upon which he must rely." State

v. Thornton, 12th Dist. Clermont No. CA2012-09-063, 2013-Ohio-2394, ¶ 18, citing Crim.R.

33(B). Unavoidable delay results "'when the [appellant] had no knowledge of the existence

of the ground supporting the motion for a new trial and could not have learned of the

existence of that ground within the required time in the exercise of reasonable diligence.'"

Id., quoting State v.

Rodriguez-Baron, 7th Dist. Mahoning No. 12-MA-44, 2012-Ohio-5360,

¶ 11. Clear and convincing proof requires Stepp to establish more than a mere allegation

he was unavoidably prevented from discovering the evidence he now seeks to introduce to

support his motion for leave to file a motion for new trial. Thornton at ¶ 19.

       ¶19 Because the present matter is well outside the 120-day period, Stepp was

required to obtain leave of court to file a motion for new trial. Williams, 2003-Ohio-5873 at

¶ 17. If leave of court is given to file a motion for new trial, the defendant must then

demonstrate the alleged newly discovered 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. Petro, 

148 Ohio St. 505

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(1947), syllabus.

       ¶20 Upon review, we find no abuse of discretion in the trial court's denial of Stepp's

motion for leave to seek a new trial. As discussed above, the trial court initially denied

Stepp's motion on the basis of untimeliness, concluding there was no clear and convincing

evidence that Stepp had been unavoidably prevented from discovering his new evidence

sooner. We find the record supports this conclusion, as Stepp failed to establish he could

not have learned of the existence of his new evidence within the required time in the

exercise of reasonable diligence.

       ¶21 The record reflects Stepp obtained the prison request form and investigation

report via a public records request filed by Stepp's friend. In his motion and supporting

affidavit, Stepp alleged he obtained the evidence in August 2019.                    Despite Stepp's

allegation that he only recently obtained the documents, the record indicates the prison

request form, dated in July 2004, and the investigation report from February 2004, existed

long before Stepp filed his motion in November 2019. Stepp does not dispute that his

evidence was likely available prior to 2019. Rather, Stepp claims he was prevented from

discovering the evidence within the 120-day period, or any time sooner than 2019, due to

prosecutorial misconduct, ineffective assistance of counsel, violations pursuant to Brady v.

Maryland, 

373 U.S. 83

, 

83 S. Ct. 1194

(1963), and Detective Hardin's testimony.1 Aside

from an allegation that, based upon Detective Hardin's testimony, Stepp did not believe the

evidence existed, Stepp offers no explanation as to how any of the above prevented him

from filing a public records request sooner. As noted above, Stepp is required to establish

more than a mere allegation he was unavoidably prevented from discovering the evidence

he now seeks to introduce to support his motion for leave to file a motion for new trial.



1. We note that Stepp's ineffective assistance of counsel claim and initial claim pursuant to Brady were
previously found by this court to be without merit. Stepp, 2018-Ohio-4305 at ¶ 40-55, 31-37.

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Thornton at ¶ 17.

       ¶22 Furthermore, the record is clear that, despite the alleged prosecutorial

misconduct, ineffective assistance of counsel, Brady violations, and false testimony, Stepp

was not prevented from accessing the information via a public records request in 2019.

There is no evidence in the record that indicates such access was limited prior to that time

and Stepp has provided no evidence that an earlier public records request would not have

produced the same documents he relies upon now. As this court has previously stated,

"the phrases in Crim.R. 33(B) requiring an appellant to show by 'clear and convincing proof

that he or she was 'unavoidably prevented' from discovering evidence do not allow one to

claim that evidence was undiscoverable simply because the defense did not undertake

efforts to obtain the evidence sooner." Thornton, 2013-Ohio-2394 at ¶ 28, citing State v.

Anderson, 10th Dist. Franklin No. 12AP-133, 2012-Ohio-4733, ¶ 14. As a result, we

conclude Stepp has failed to articulate any legitimate reason why his friend, and even

himself, was incapable of discovering the evidence within the time allotted by Crim.R. 33,

or at any time sooner than 12 years after his conviction.

       ¶23 Based on the foregoing, we hold Stepp has failed to demonstrate by clear and

convincing evidence that he could not have learned of the existence of the newly-

discovered evidence within the 120-day period set forth in Crim.R. 33(B). Accordingly, we

find no abuse of discretion in the trial court's decision to deny Stepp's motion for leave.

       ¶24 Furthermore, in viewing the prison request form and Detective Hardin's

investigation report in the context of the record as a whole, we do not find the "new"

evidence disclosed a strong probability that it would change the outcome if a new trial were

granted. Rather, we agree with the trial court that the evidence produced by Stepp is

inculpatory in nature, and effectively strengthens the state's case against Stepp. That is,

the statements from S.S. and R.R. are consistent with the three victims' testimonies at trial,

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and corroborate key facts regarding Stepp's criminal behavior. Specifically, S.S. and R.R.

both noted that Stepp pretended to be a police officer and took them to remote areas where

he forced them to perform oral sex on him. R.R. also indicated that her attacker drove her

in a red car to a remote area, which is consistent with the victims' testimonies. Moreover,

despite Stepp's claims that the new evidence suggests "the very real probability that

someone other than Stepp was committing the sexual assaults," both women identified

Stepp as their attacker. Specifically, S.S. implicated Stepp by name, while R.R. stated her

attacker's name was Brian and selected Stepp from the photo line-up. Based upon the

contents of Stepp's newly-discovered evidence, we find the evidence is not exculpatory in

nature, and does not disclose a strong probability that it will change the result if a new trial

was granted.

       ¶25 Finally, turning to Stepp's argument regarding Detective Hardin's testimony,

we are unpersuaded that Stepp has established a claim pursuant to Napue v. Illinois, 

360 U.S. 264

, 

79 S. Ct. 1173

(1959).

       ¶26 "To establish a Napue claim, a defendant must show that: (1) the statement

was actually false, (2) the statement was material, and (3) the prosecution knew it was

false." State v. Widmer, 12th Dist. Warren No. CA2012-02-008, 2013-Ohio-62, ¶ 38, citing

Coe v. Bell, 

161 F.3d 320

, 343 (6th Cir.1998). In cases where the prosecutor knowingly

uses perjured testimony, or fails to correct what he subsequently learns was perjury, the

falsehood is deemed to be material "if there is any reasonable likelihood that the false

testimony could have affected the judgment of the jury."

Id. at ¶ 38 ¶27

Here, Stepp claims the new evidence proves Detective Hardin possessed

documentation of R.R. and S.S.'s claims against Stepp, contrary to what the detective

testified at trial. However, even if we assume, for the sake of argument, that Detective

Hardin's testimony amounts to perjury, we find Stepp has failed to demonstrate the

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testimony was material as defined by Napue, as there is no reasonable likelihood that the

state's alleged use of the detective's statement could have affected the jury's verdict.

       ¶28 As this court previously held, "the evidence of Stepp's guilt was formidable

and, arguably, overwhelming. C.T.'s testimony was corroborated by the other victims in the

case, as well as the evidence the police found as a result of searching Stepp's residence,

which included a red vehicle and a silver badge that matched C.T.'s version of events."

Stepp, 2008-Ohio-4305 at ¶ 54. C.T.'s testimony was corroborated by two additional

victims, H.K. and J.G., who also testified that Stepp attacked them in a similar manner

around the same time period. The new evidence Stepp seeks to introduce further implicates

Stepp, as S.S. and R.R. described similar attacks around the same time period, and

identified Stepp as their attacker.

       ¶29 While Stepp argues the new evidence would have affected Detective Hardin's

credibility with the jury, it is apparent from the record that a reasonable jury could have

convicted Stepp based upon the remaining evidence against him, as the victims detailed

their attacks and identified Stepp as the attacker.      Thus, even if the jury determined

Detective Hardin was not credible, such a determination would not discredit the remaining,

overwhelming evidence of Stepp's guilt.

       ¶30 Furthermore, we agree with the trial court that in order to determine that the

detective's testimony was inconsistent with the prison form and investigation report, the jury

would also learn of R.R.'s and S.S.'s allegations against Stepp. Thus, his new evidence

would provide the jury with two additional claims that Stepp, while pretending to be a police

officer, sexually assaulted a woman who appeared to be a prostitute, which is consistent

with and corroborates the testimony of the three other victims. As a result, we do not agree

with Stepp that the new evidence creates more than a reasonable likelihood of affecting the

judgment of the jury. Rather, as discussed above, the evidence effectively strengthens the

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case against Stepp and therefore, is unlikely to change the outcome of Stepp's trial. As a

result, Stepp's "newly-discovered evidence" is not material pursuant to Napue, and his claim

fails. Widmer at ¶ 38.

      ¶31 In light of the foregoing, we find no error in the trial court's decision to deny

Stepp's motion for leave to file a delayed motion for new trial. Accordingly, we overrule

Stepp's assignment of error.

      ¶32 Judgment affirmed.


      S. POWELL and RINGLAND, JJ., concur.




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