A trial court must grant a motion for permission to seek a new trial filed by a man convicted of rape after the prosecution failed to turn over a lab report that tended to disprove an element of the offense and raised questions about the credibility of the alleged victim’s testimony, the Supreme Court of Ohio ruled today.

In a unanimous decision, the Supreme Court stated that it was not ruling on whether Tracy McNeal has demonstrated that he is entitled to a new trial. However, the Montgomery County Common Pleas Court must grant his request to move for a new trial. The trial court had ruled that McNeal’s request six years after his 2014 conviction was untimely when procedural rules typically require the defendant to request a new trial within four months of a conviction.

Writing for the Court, Justice Sharon L. Kennedy explained that McNeal had established that he was “unavoidably prevented” from filing his request for a new trial within the rule’s time limitations because the Montgomery County Prosecutor’s Office had failed in its duty to produce favorable evidence against McNeal.

Woman Accuses Houseguest of Rape
In 2014, McNeal, his wife, and their four children were temporarily living in the Dayton apartment of a woman identified in Court records as “C.R.” One evening, McNeal, his wife, C.R., C.R.’s sister Samantha, and Samantha’s husband drank alcohol together at C.R.’s apartment.

C.R. became sick and was carried to her bedroom. Later in the evening, Samantha returned to check on C.R. and saw McNeal standing in C.R.’s bedroom doorway with his pants down and pulling the door shut behind him.

C.R. later testified that she was “knocked out” and “really, really drunk” and that she was so drunk she did not know what she was doing and did not consent to have sex. She said someone dragged her roughly across her bed as she passed in and out of consciousness. She awoke later with the understanding that someone had sex with her. When Samantha arrived, C.R. asked who had been in the bedroom with her, and Samantha replied that it was McNeal. C.R. stated that McNeal had sex with her.

McNeal was charged with rape in violation of R.C. 2907.02(A)(1)(c), which prohibits a person from engaging in sex with another whose “ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.” Because of his criminal history, he was also charged with a repeat-violent-offender specification.

The jury found him guilty of rape, the trial court found him guilty of the specification, and he was sentenced to 20 years in prison. The Second District Court of Appeals affirmed his conviction.

Records Request Leads to New Trial Motion
Immediately following his conviction, McNeal did not request a new trial. Ohio rules of criminal procedure require a request for a new trial to be made within 14 days of a conviction. However, the deadline is 120 days when the defendant relies on new evidence that could not “with reasonable diligence” have been discovered and produced at trial. If a defendant misses those deadlines, the defendant must request the court’s “leave” to file a delayed motion for a new trial.

McNeal filed his motion for leave in 2020. The motion stated that he had received a laboratory report from the Dayton Police Department through a public records request. The report indicated that C.R. had no alcohol in her blood approximately 3.5 hours after the alleged rape was to have occurred. He provided a sworn statement from his trial lawyer that the county prosecutor did not turn over the lab report during pre-trial discovery.

McNeal argued that the report was exculpatory and was required to be turned over because it showed C.R. was not substantially impaired by alcohol at the time of the alleged rape. And that would contradict C.R.’s testimony that she could not consent to sex because she was too intoxicated.

Without conducting a hearing , the trial court denied McNeal’s request to file a motion for a new trial. McNeal appealed the denial to the Second District, which upheld the trial court’s decision. McNeal appealed to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzes Delayed Request Requirement
Justice Kennedy explained that for McNeal to receive leave to request a new trial, he had to prove by clear and convincing evidence that he was unavoidably prevented from discovering evidence that he needed to seek a new trial.

In denying McNeal’s request, the trial court said that the prosecutor did not know about the lab report. The opinion explained that under the U.S. Supreme Court ruling in Brady v. Maryland (1963), the prosecutor’s duty to disclose evidence that is favorable to a defendant includes a “duty to learn” of any favorable evidence collected by others acting on the government’s behalf, such as the police. For this reason, it was irrelevant that the prosecutor was not aware of the report, the Court stated.

When McNeal submitted his request in 2020, the prosecutor’s office did not respond and did not challenge McNeal’s claim that the report was inappropriately withheld.

The report disclosed that while the blood test did not indicate alcohol in C.R.’s system, it did test positive for marijuana, and her urine tested positive for an antianxiety drug. C.R. testified that she smoked marijuana and took her prescribed antianxiety medication on the night she and McNeal had sex. The trial judge ruled that the jury could have concluded that C.R. was impaired by those substances and was unable to consent. The trial judge ruled that the report would not have changed the outcome.

Trial Court Used Wrong Standard
Justice Kennedy wrote that the trial court inappropriately addressed the question of whether there was sufficient evidence besides the victim’s intoxication by alcohol to support the jury’s verdict. At this stage, the trial court should have considered only whether the lab report “could reasonably be taken to put the whole case in such a different light as to undermine the confidence in the verdict.”

The opinion stated that C.R. testified that she was intoxicated only by alcohol and there was no evidence presented that she ingested enough medication or marijuana to impair her ability to resist or consent to sexual conduct.

The Court noted that under R.C. 2907.02(A)(1)(c), the inability to resist or consent is an element of the rape charge against McNeal. The Court explained that the prosecutor’s office, by not responding to McNeal’s 2020 motion, did not rebut McNeal’s assertion that he was unavoidably prevented from discovering the new evidence.

The Court concluded that the trial court abused its discretion in denying McNeal’s motion for leave to move for a new trial. It reversed the Second District and trial court decisions and remanded the case to the trial court to grant his motion and conduct further proceedings consistent with the Court’s opinion.

2021-0744. State v. McNeal, Slip Opinion No. 2022-Ohio-2703.

View oral argument video of this case.

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