[Cite as State v. Rios, 2012-Ohio-3289.]




               IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

STATE OF OHIO                                     :

        Plaintiff-Appellee                        :    C.A. CASE NO. 10CA0099

vs.                                               :    T.C. CASE NO. 08CR523

JUAN RIOS                                         :    (Criminal Appeal from
                                                        Common Pleas Court)
        Defendant-Appellant                       :

                                             .........

                                           OPINION

                              Rendered on the 20th day of July, 2012.

                                             .........

Andrew Wilson, Pros. Attorney; Lisa M. Fannin, Asst. Pros. Attorney, Atty. Reg. No.
0082337, 50 E. Columbia Street, 4th Floor, P.O. Box 1608, Springfield, OH 45501
      Attorneys for Plaintiff-Appellee

Linda Joanne Cushman, Atty. Reg. No. 0043543, 150 N. Limestone Street, Suite 206,
Springfield, OH 45502
      Attorney for Defendant-Appellant

                                             .........

GRADY, P.J.:

                                           I. Introduction

        {¶ 1} Defendant Juan Rios appeals from his conviction and sentence for the

aggravated murders of Misael Nunez and Arnulfo Claudio. On appeal, Rios raises three

assignments of error concerning the consumptive testing of DNA evidence and challenging
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the sufficiency and manifest weight of the evidence presented at trial. For the reasons set

forth below, we overrule the three assignments of error and will affirm Defendant’s conviction

and sentence.

                                    A. Statement of Facts

       {¶ 2} The State’s evidence at trial demonstrated the following facts:

       {¶ 3} On June 21, 2008, Defendant and two of his friends, Chad Adkins and Mike

Simms, spent the early evening using cocaine and drinking beer with several other people.

Later that night Defendant suggested going to Club Lavaca in Springfield, Ohio, so that the

three men could rob people. Adkins and Simms agreed.

       {¶ 4} The three men were in and out of the club that night. They spent much of the

night standing in the parking lot, drinking beer and socializing. They spoke with various

people, including Tanya Algren and Kelsey Woerlein. Defendant asked the two women to

lure people out of the club so that the men could rob them at gunpoint. He threatened to kill

the women when they refused. Algren and Woerlein eventually went into the club, but they

never brought anyone out for the three men to rob.

       {¶ 5} In the meantime, Arnulfo Claudio and his friend Octavia Reyas arrived at the

club, in the company of several other men. Soon after arriving, they encountered Claudio’s

cousin Misael Nunez inside the club.

       {¶ 6} Near closing time early the following morning, Reyas was leaning against the

wall outside the men’s restroom, talking with Claudio and a few other men when he saw

Nunez and Defendant go into the restroom. Reyas believed that they were the only people in

the restroom. A couple of minutes later, Reyas heard a commotion inside the restroom and
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told Claudio that it sounded like fighting. Claudio tried to open the door, but it was locked,

so he kicked it open and entered the restroom. Reyas immediately heard a gunshot and saw

Claudio fall to the ground.

       {¶ 7} Nunez ran out of the restroom, followed by Defendant, who was brandishing a

gun. In addition to Reyas, numerous patrons and employees saw Defendant shoot Nunez in

the back. Many of those witnesses had known Rios to one degree or another, prior to the

shootings. None of the witnesses saw Simms or Adkins in the area of the restroom or near

Nunez at the time of the shootings.

       {¶ 8} Nunez fell to the ground, and one witness saw him trying to crawl away from

Defendant, who stood over Nunez and shot him again. Defendant rifled through Nunez’s

pockets and pulled a chain from around his neck before shooting Nunez again and then

leaving the club.

       {¶ 9} A club employee called 911. When the police arrived, witnesses provided

them with Defendant’s name and description. At least one witness told the officers where

she believed Defendant could be found. A short time later, Defendant was found hiding in an

upstairs closet of a friend’s home.

       {¶ 10} Nunez and Claudio were transported to the hospital. Nunez was pronounced

dead shortly after his arrival. Claudio was care flighted to another hospital, where he died

several days later. The coroner testified that the cause of Nunez’s death was multiple gunshot

wounds, and that Claudio was killed by a single gunshot wound to the head.

       {¶ 11} Later that morning, a local parishioner found a gun in the bushes of his church

parking lot, near Club Lavaca. He gave the gun to his pastor, who turned it over to the
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police. The gun was found to have been stolen from a home in Springfield. Ballistics

testing conducted at the Bureau of Criminal Investigation (BCI) demonstrated that it was the

same gun that was used to kill both Nunez and Claudio.

        {¶ 12} Forensic testing at BCI discovered the presence of both Nunez and Claudio’s

DNA on the gun, as well as on the pants Defendant was wearing at the time of his arrest.

Swabs taken of Defendant’s hands at the time of his arrest were highly indicative of gun shot

residue.

        {¶ 13} The case was assigned to Detective Hicks, who interviewed Defendant and

Adkins. Defendant claimed to have had no involvement with the shooting. Detective Hicks

was unable to interview Simms, who had moved to Louisiana after the murders. Defendant

told a very different version of events during an interview with a local news station, insisting

that he was the victim of a drug deal gone wrong.

        {¶ 14} In support of a charge of having weapons under disability, the State called to

the stand a Clark County Clerk of Courts employee, who testified that Defendant had a prior

felony conviction for possession of cocaine in case number 04-CR-437. He testified that

there was no evidence in the court’s records that Defendant’s right to bear arms had been

restored and his disability was still in place.

                                       B. Procedural History

        {¶ 15} On June 30, 2008, Defendant was indicted on fourteen counts: four counts of

aggravated murder, R.C. 2903.01(B); two counts of murder, R.C. 2903.02(A); four counts of

felony murder, R.C. 2903.02(B); two counts of aggravated robbery, R.C. 2911.01(A)(1); one

count of having weapons under disability, R.C.2923.13(A)(3); and one count of tampering
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with evidence, R.C. 2921.12(A)(1). Each of the aggravated murder charges included three

specifications. The murder, felony murder, and aggravated robbery charges each included

one specification.

       {¶ 16} Numerous pre-trial motions were filed, but the only one relevant to

Defendant’s appeal is a July 2008 motion he filed expressing a concern that DNA samples

recovered from the murder weapon would likely be consumed by any DNA testing.

Defendant sought the appointment of an expert witness and requested his expert’s presence

during testing of any DNA evidence at BCI.

       {¶ 17} Judge O’Neill granted Defendant’s request to appoint an expert witness.

Because BCI protocol does not allow for the presence of non-employees in the labs during

testing, the court ordered the State to transfer all evidence of presumptive blood samples to a

private testing facility to enable Defendant’s expert to be present during its testing.

       {¶ 18} A few months later, the case was transferred to Judge Rastatter. The State

filed a motion asking the court to reconsider Judge O’Neill’s ruling that required any DNA

testing to be conducted at an outside lab, because it would put an undue financial burden on

the State. Defendant promptly objected. The trial court held a hearing, during which the

State offered to transfer the samples to a lab of Defendant’s choice for his expert to perform

the testing. Defendant declined, insisting that he had never asked for the evidence to be

tested in the first place. The trial court granted the State’s motion, and the DNA testing was

performed at the BCI laboratories.

       {¶ 19} The case proceeded to trial in September 2010, and a jury convicted Defendant

of all counts and specifications. At the conclusion of the sentencing phase, the jury found,
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beyond a reasonable doubt, that the aggravating circumstances of which Defendant was found

guilty did not outweigh the mitigating factors and recommended a life sentence without the

possibility of parole.

         {¶ 20} The parties agreed that the two counts of aggravated murder, one count of

murder, and two counts of felony murder with regard to the death of each of Defendant’s two

victims would merge for sentencing. The parties also agreed that the two aggravated robbery

convictions merged.      The trial court sentenced Defendant to life in prison without the

possibility of parole for the aggravated murder of each victim, ten years for aggravated

robbery, five years for having weapons under disability, five years for tampering with

evidence, and three years for the firearm specifications. All sentences were ordered to be

served consecutively.

         {¶ 21} Defendant filed a timely notice of appeal and has raised three assignments of

error.

                                       II. Legal Analysis

         {¶ 22} Defendant’s first assignment of error:

“THE CONSUMPTIVE TESTING OF EXCULPATORY DNA SAMPLES WITHOUT THE

PRESENCE OF APPELLANT’S EXPERT WAS A VIOLATION OF APPELLANT’S DUE

PROCESS RIGHTS.”

         {¶ 23} The consumptive testing of evidence violates a defendant’s due process

rights only when the evidence possesses an exculpatory value that was apparent before

the evidence was destroyed. California v. Trombetta, 467 U.S. 479, 488-489, 104 S.Ct.

2528, 81 L.Ed.2d 413 (1984).
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       {¶ 24} Defendant does not identify what exculpatory value the DNA samples

recovered from the murder weapon was apparent before the samples were tested. Despite his

suggestion to the contrary, the fact that Defendant requested that his expert be present during

the testing does not demonstrate that the evidence necessarily had any exculpatory value.

Moreover, we find nothing in the record from which the trial court could or should have found

that the DNA evidence had any exculpatory value that was evident prior to BCI’s testing.

       {¶ 25} Defendant’s first assignment of error is overruled.

       {¶ 26} Defendant’s second assignment of error:

“THE GUILTY VERDICTS ON ALL COUNTS WERE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”



       {¶ 27} A weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive. State v. Hufnagle, 2d Dist. Montgomery No. 15563, 1996 WL

501470 (Sept. 6, 1996). The proper test to apply to that inquiry is the one set forth in State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983):

            The court, reviewing the entire record, weighs the evidence and all

            reasonable inferences, considers the credibility of witnesses and

            determines whether in resolving conflicts in the evidence, the jury lost its

            way and created such a manifest miscarriage of justice that the conviction

            must be reversed and a new trial ordered. Accord, State v. Thompkins, 78

            Ohio St.3d 380, 678 N.E.2d 541 (1997).
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       {¶ 28} The credibility of the witnesses and the weight to be given to their testimony

are matters for the trier of facts to resolve. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212 (1967). In State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug.

22, 1997), we observed:

           Because the factfinder * * * has the opportunity to see and hear the

           witnesses, the cautious exercise of the discretionary power of a court of

           appeals to find that a judgment is against the manifest weight of the

           evidence requires that substantial deference be extended to the factfinder's

           determinations of credibility. The decision whether, and to what extent, to

           credit the testimony of particular witnesses is within the peculiar

           competence of the factfinder, who has seen and heard the witness.

       {¶ 29}       This court will not substitute its judgment for that of the trier of facts on

the issue of witness credibility unless it is patently apparent that the trier of facts lost its way

in arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL

691510 (Oct. 24, 1997).

       {¶ 30}      The primary thrust of Defendant’s argument is that his convictions for the

murders of Nunez and Claudio were against the manifest weight of the evidence because none

of the State’s witnesses were credible.         However, every instance of “inconsistencies,

contradictions, and falsifications” to which he refers involved an issue of witness credibility

for the jury to weigh in returning a verdict. Moreover, the alleged inconsistencies seem to

relate to peripheral matters that occurred prior to the shootings.

       {¶ 31}      Although nobody witnessed Defendant shoot Claudio, there was credible
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circumstantial evidence that he did so.       “Circumstantial evidence and direct evidence

inherently possess the same probative value.” State v. Jenks, 61 Ohio St.3d 259, 272, 574

N.E.2d 492 (1991).

       {¶ 32} Reyas testified that he believed that only Defendant and Nunez were in the

restroom when Claudio entered.       Almost immediately, Reyas heard a gunshot and saw

Claudio fall to the floor. Reyas and multiple other eyewitnesses testified that right after they

heard what sounded like a gunshot or firecracker coming from the restroom, they saw

Defendant chase Nunez out of the restroom, with a gun in his hand.             And, they saw

Defendant shoot Nunez several times. Their testimony is not fatally undermined by the

matters Defendant cites.

       {¶ 33} Defendant also argues that, had the State obtained a sample of Simms’ DNA,

Simms might have been identified as a contributor of the DNA that was found on the murder

weapon. This is possible, since Woerlein testified that Simms showed her the guns in

Defendant’s car a few hours before the shootings. However, not a single witness placed a

gun in Simms’ hands near the time of the shootings, nor did any of the witnesses see Simms

near the restroom or near Nunez at the time of the murders.

       {¶ 34} In any event, the failure to obtain a sample of Simms’ DNA for testing is not

chargeable to the State. It was Defendant’s burden to request that a sample of Simms’ DNA

be obtained and tested, in order for the Defendant to now complain that was not done.

       {¶ 35} For the foregoing reasons, we conclude that the jury did not lose its way in

finding Defendant guilty of the murders of Nunez and Claudio.

       {¶ 36} Defendant’s second assignment of error is overruled.
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       {¶ 37} Defendant’s third assignment of error:

“THE GUILTY VERDICTS ON COUNTS 1, 2, 6, 7, 11, AND 12 WERE NOT

SUPPORTED BY SUFFICIENT EVIDENCE.”

       {¶ 38} A sufficiency of the evidence argument challenges whether the State has

presented adequate evidence on each element of the offense to allow the case to go to the jury

or sustain the verdict as a matter of law. State v. Thompkins (1997), 78 Ohio St.3d 380. The

proper test to apply to such an inquiry is the one set forth in paragraph two of the syllabus of

State v. Jenks (1991), 61 Ohio St.3d 259:

       {¶ 39} “An appellate court’s function when reviewing the sufficiency of the evidence

to support a criminal conviction is to examine the evidence admitted at trial to determine

whether such evidence, if believed, would convince the average mind of the defendant’s guilt

beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt.”

       {¶ 40} Defendant argues that his convictions for aggravated murder and aggravated

robbery were not supported by sufficient evidence because the State failed to prove that he

committed a theft offense. In support, he points to the fact that both victims were later found

to have money in their possession.

       {¶ 41} The State offered evidence from several witnesses, all of whom saw Defendant

shoot Nunez and then go through his pockets. Reyas thought Defendant removed something

from Nunez’s pockets, although he could not see what. Reyas also saw Defendant remove a

chain from around Nunez’s neck. Even if the jurors determined that Defendant took nothing
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from Nunez, they could have found that the evidence that Defendant rifled through Nunez’s

pockets was sufficient to prove that he attempted to commit a theft offense.

       {¶ 42} Accordingly, we conclude that there was sufficient evidence to prove that

Defendant committed or attempted to commit a theft offense in connection with the shootings,

for purposes of aggravated murder and aggravated robbery.            Moreover, that proof is

reinforced by Defendant’s prior statements to Simms, Woerlein, and Algren that he intended

to rob people, which was admissible per Evid.R. 404(B) as proof of his intent to commit theft

offenses.

       {¶ 43} Defendant’s third assignment of error is overruled. The judgment of the trial

court will be affirmed.




FROELICH, J., And HALL, J., concur.



Copies mailed to:

Lisa M. Fannin, Esq.
Linda Joanne Cushman, Esq.
Hon. Douglas M. Rastatter
