[Cite as State v. Rawls, 2016-Ohio-7962.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104191



                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                        DAVID RAWLS
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                  Case No. CR-96-341281-ZA

        BEFORE: Stewart, J., Kilbane, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: December 1, 2016
ATTORNEY FOR APPELLANT

Donald R. Caster
Ohio Innocence Project
University of Cincinnati
P.O. Box 210040
Cincinnati, OH 45221


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

Christopher D. Schroeder
Anthony Thomas Miranda
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1}   Appellant David Rawls appeals from the denial of his application for

postconviction DNA testing. For the reasons discussed below, we reverse the decision of

the trial court and remand for further proceedings consistent with this opinion.

       {¶2} Rawls was arrested on June 20, 1996, on charges related to an aggravated

robbery of a Marc’s Discount Drug Store. Following an indictment, the charges were

amended to two counts of aggravated robbery, in violation of R.C. 2911.01, and two

counts of kidnapping, in violation of R.C. 2905.01.         Each count carried a firearm

specification and an aggravated felony specification for a previous conviction for

aggravated robbery.    Rawls’s case proceeded to a jury trial in January 1997.          The

following is a summary of the facts elicited from the trial that are relevant to the present

appeal.1




        A full discussion of the facts leading to Rawls’s convictions is provided in his
       1



direct appeal, State v. Rawls, 8th Dist. Cuyahoga No. 72051, 1998 Ohio App. LEXIS
1895 (April 30, 1998).
      {¶3} On the afternoon of June 16, 1996, a man wearing a dark jacket and a black

cap that read “police” across the front, knocked on the door to the money room of the

Marc’s store located on Lakeshore Boulevard in Euclid, Ohio. Sharon Wheeler, a store

employee who was working alone inside the money room on that day, opened the door

after observing the “police” inscription on the man’s hat. When Wheeler opened the

door, the man placed a gun in Wheeler’s face, shoved her back into the money room,

closed the door, and covered her mouth with his hand. The assailant forced Wheeler to

the floor where he bound her hands and feet with red T-shirts that had been taken off a

rack of clothing in the store. Shortly thereafter, Peter Thomas, the employee supervisor

of the store knocked on the door to the money room. When the assailant opened the

door, he immediately pointed his gun at Thomas and pulled him inside. The assailant

then ordered Thomas, at gunpoint, to fill a large plastic bag with cash. Thomas did as he

was told. When finished, the assailant forced Thomas to the floor and also bound his

hands and feet with T-shirts. The assailant proceeded to strike Wheeler and Thomas in

the head with his gun, causing severe head lacerations to both victims. The assailant

took the bag of money, which totaled over $8,000, and ran out of the store.
      {¶4} When police arrived, Thomas told them that he was familiar with the

assailant as a person who, in the days before the robbery, had been hanging around the

store and telling employees that he was the new “floor cleaner.” Thomas told police that

aside from seeing the perpetrator walking around and observing the store under the

pretense of being a floor cleaner, he also saw the perpetrator in the break room talking to

employees. Further interviews with employees who had talked to the man, revealed that

the man carried a pistol and was telling employees that he “was a part-time security

guard, and also ran the floors,” and was also asking if there was “a money room around.”

      {¶5} Another store employee, Joe Jones III, the store’s greeter, testified that he

saw the perpetrator run out of the Marc’s store carrying a large bag and a red T-shirt.

According to Jones, the perpetrator was wearing dark clothing with a gun sticking out his

pocket and a police cap. Jones testified that the perpetrator was familiar to him because

he had spoken to him just before the robbery when the man was using the payphone

outside of the store. Jones testified that the man asked him which store manager was on

duty that day, and also spoke to him for a few minutes about football and basketball.
      {¶6} On this information, detectives assigned to the case telephoned the

maintenance company that the Marc’s store had contracted to clean its floors. The

detectives learned that a man fitting the description of the perpetrator had been employed

there and that this person was David Rawls.        After gathering this information, the

detectives assembled a photo array of potential suspects, which included Rawls. The

photos were shown to six store employees, including Thomas, who stated that they had

seen the perpetrator either on the day of the robbery or in the days prior. All six

employees picked Rawls’s picture out of the array as the person they had seen. At trial,

both Thomas and Jones identified Rawls as the person who committed the robbery.

      {¶7} In addition to the eyewitness identifications, the detectives obtained certain

phone numbers from a pager recovered from Rawls at the time of his arrest. Two of the

numbers in the pager corresponded to telephone numbers called from the Marc’s

payphone on the day of the robbery.

      {¶8} Rawls was found guilty on all charges and their corresponding firearm

specifications, and was sentenced to a total, indeterminate term of 18 to 50 years in

prison. Rawls’s direct appeal of his convictions was affirmed with the exception of a

limited remand for reconsideration of sentencing. Rawls, 8th Dist. Cuyahoga No. 72051,

1998 Ohio App. LEXIS 1895 (April 30, 1998).
       {¶9} Prior to trial, and in the 20 years since, Rawls has maintained his innocence.

On August 27, 2015, Rawls filed an application for postconviction DNA testing. In it,

Rawls requested the DNA testing of the T-shirts that were used by the perpetrator in the

commission of the robbery to bind the feet and hands of the victims. The state opposed

the application on the basis that despite due diligence on the part of the assistant

prosecuting attorney (“APA”), the APA was unable to locate the T-shirts, and that even if

the evidence were available, the evidence would not be outcome determinative and

therefore did not support an application for DNA testing. The APA submitted his report

of the steps he took to locate the evidence at issue, pursuant to R.C. 2953.75(B).

       {¶10} In light of the APA’s report, Rawls asked the court for an evidentiary

hearing to determine the location of the T-shirts.      In his argument, Rawls cited to

numerous cases across the country where evidence was found, despite initial claims that

evidence was lost or destroyed, when courts held a hearing where custodians testified

regarding their efforts to locate the evidence. In its opposition brief, the state argued

that, even if the shirts could be located, a touch DNA sample was likely to have degraded

over 19 years to the point where testing was not possible and, even if DNA was found, it

would not be outcome determinative because it is possible that others touched the shirts

while they were on display in the store. The state also focused on the steps it took to find

the evidence, including looking through the county evidence room, and contacting past

evidence custodians and prosecutors.
       {¶11} The court denied Rawls’s request for an evidentiary hearing and further

denied his motion for DNA testing. In its decision, the court stated that the application

failed to meet two of the six statutory factors necessary for DNA testing under R.C.

2953.74. Specifically, the court concluded that Rawls failed to show that the evidence he

sought still existed, in light of the APA’s report that it could not be found. The decision

went on to state that even if the T-shirts still existed, Rawls could not demonstrate that the

results from any DNA testing would be outcome determinative under R.C. 2953.74(C)(5).

       {¶12} On appeal, Rawls raises two assignments of error for our review. The first

argues that the trial court erred by declining to hold an evidentiary hearing. His second

assignment of error argues that the trial court erred in finding that DNA testing of the

T-shirts would not be outcome determinative in his case.

       {¶13} Appellate courts review a trial courts decision to accept or reject an eligible

inmate’s application for DNA testing for an abuse of discretion. R.C. 2953.74(A); State

v. Ayers, 185 Ohio App.3d 168, 2009-Ohio-6096, 923 N.E.2d 654 (8th Dist), ¶ 12. An

abuse of discretion is “more than an error of law or of judgment; it implies that the court’s

attitude is unreasonable, arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d

151, 157, 404 N.E.2d 144 (1980).
       {¶14} Ohio’s statutory scheme set forth in R.C. 2953.71 et seq., for post conviction

DNA testing, outlines certain factors that must be satisfied before a trial court “may

accept” an eligible inmate’s application for DNA testing. The parties do not dispute that

Rawls qualifies as an eligible offender for DNA testing under the statute. Accordingly,

the court needed only to find the statutory factors under R.C. 2329.74(C) applied before

granting the applications.

       {¶15} R.C. 2329.74(C) states:

       If an eligible offender submits an application for DNA testing under section
       2953.73 of the Revised Code, the court may accept the application only if
       all of the following apply:

       (1) The court determines pursuant to section 2953.75 of the Revised Code
       that biological material was collected from the crime scene or the victim of
       the offense for which the offender is an eligible offender and is requesting
       the DNA testing and that the parent sample of that biological material
       against which a sample from the offender can be compared still exists at
       that point in time.

       (2) The testing authority determines all of the following pursuant to
       section 2953.76 of the Revised Code regarding the parent sample of the
       biological material described in division (C)(1) of this section:

              (a) The parent sample of the biological material so collected
              contains scientifically sufficient material to extract a test
              sample.

              (b) The parent sample of the biological material so collected
              is not so minute or fragile as to risk destruction of the parent
              sample by the extraction described in division (C)(2)(a) of this
              section; provided that the court may determine in its
              discretion, on a case-by-case basis, that, even if the parent
              sample of the biological material so collected is so minute or
              fragile as to risk destruction of the parent sample by the
              extraction, the application should not be rejected solely on the
              basis of that risk.
       (c) The parent sample of the biological material so collected
       has not degraded or been contaminated to the extent that it has
       become scientifically unsuitable for testing, and the parent
       sample otherwise has been preserved, and remains, in a
       condition that is scientifically suitable for testing.

(3) The court determines that, at the trial stage in the case in which the
offender was convicted of the offense for which the offender is an eligible
offender and is requesting the DNA testing, the identity of the person who
committed the offense was an issue.

(4) The court determines that one or more of the defense theories asserted
by the offender at the trial stage in the case described in division (C)(3) of
this section or in a retrial of that case in a court of this state was of such a
nature that, if DNA testing is conducted and an exclusion result is obtained,
the exclusion result will be outcome determinative.

(5) The court determines that, if DNA testing is conducted and an
exclusion result is obtained, the results of the testing will be outcome
determinative regarding that offender.

(6) The court determines pursuant to section 2953.76 of the Revised Code

from the chain of custody of the parent sample of the biological material to

be tested and of any test sample extracted from the parent sample, and from

the totality of circumstances involved, that the parent sample and the

extracted test sample are the same sample as collected and that there is no

reason to believe that they have been out of state custody or have been

tampered with or contaminated since they were collected.
       {¶16}    In his first assignment of error, Rawls takes issue with the court’s

conclusion that he failed to meet factor (C)(1) above, which requires that evidence subject

to the request for DNA testing still be in existence at the time of the application. Rawls

contends that the court should have held an evidentiary hearing before concluding that

evidence did not exist.

       {¶17} Although a court must duly consider whether the eligible offender meets

all of the statutory requirements for DNA testing, R.C. 2359.73(D) specifically provides

that “[t]he court is not required to conduct an evidentiary hearing in conducting its review

of, and in making its determination as to whether to accept or reject, the application.”

Moreover, as a corollary to R.C. 2953.74(C)(1), the postconviction DNA testing statute

requires that the state exercise reasonable diligence in determining whether the biological

material subject to the offender’s request for testing was collected from the crime scene

or victim of the offense, and whether the same biological material exists at the time of the

application for testing. R.C. 2953.75(A). In conducting his/her search, the prosecuting

attorney is instructed to investigate with reasonable diligence all relevant sources which

includes but is not limited to: (1) all prosecuting authorities from the original case, (2) all

law enforcement authorities involved in the original investigation, (3) all custodial

authorities involved at any time with the biological material, (4) the custodian of all

agencies, (5) all crime laboratories involved at any time with the biological material, and

(6) all other reasonable resources.       Id.   The definition of “reasonable diligence”

provided for in the statute states,
       “Reasonable diligence” means a degree of diligence that is comparable to
       the diligence a reasonable person would employ in searching for
       information regarding an important matter in the person’s own life.

R.C. 2953.71(Q). The prosecutor must address in a report filed with the trial court the

existence and availability of the evidence and, if necessary, outline the state’s efforts to

locate the evidence if the evidence cannot be found. R.C. 2953.75(B).

       {¶18} In this case, the APA submitted a report of the state’s efforts to locate the

T-shirts used to tie the victims. The report detailed how the state contacted the Euclid

Police Department, including the department’s records office and property room.

According to the report, the “[r]ecords [o]ffice stated that they [sic] switched computer

systems approximately two years ago and do not still have anything in their [sic]

possession from 1996.”      The report further stated that “Thomas Yanacek with the

[p]roperty room checked Euclid Police records pertaining to Rawls case * * * and was

unable to locate any evidence currently in the possession of the Euclid Police

Department.” Yanacek did find a copy of the initial, six-page, handwritten police report

and Rawls’s personal history sheet; however, neither indicted whether T-shirts were

collected as evidence from the crime scene. According to the APA’s report,

       Yanacek further indicated that Euclid’s computer records show no physical
       evidence associated with that report. Yanacek stated that he believed any
       evidence associated with Rawls’ case had probably been destroyed because
       the case had been adjudicated many years ago.
The report also indicated that the state contacted the department’s police chief, Tom

Brickman. Chief Brickman spoke to a law clerk at the prosecutor’s office and explained

that the department did not have any evidence in its possession related to the Rawls case.

Attached to the report were two email letters from Brickman to the Ohio Innocence

Project that stated that the department did not have the evidence and that the inventory log

of collected evidence could not be located.

       {¶19} The APA’s report also detailed how the state could not find an inventory

log, chain of custody log, or any other documents relating to the existence or location of

the T-shirts in its digital discovery database, and how a personal inspection of the

Cuyahoga County property room revealed no items related the case. The report further

related how the state contacted the prosecutor who tried the case in 1996, the criminal

clerk of courts for the county, and the Eighth District Court of Appeals Clerk’s Office,

but was unable to locate the evidence or any documentation indicating its possible

whereabouts.
       {¶20} Notably, however, the APA’s investigation of the clerk’s office uncovered

a Euclid police report attached to a motion Rawls filed in 2008. The police report stated

that “[t]wo items of clothing used in the attempt to tie up the victims was held.” The

APA admitted in his investigation report that the police report was not included among

the information provided by the Euclid police department to the state in its initial

inquiries. Moreover, the APA’s report also stated, that upon reviewing the docket and

pleadings in a 2010 Section 1983 case filed by Rawls in federal court against the city of

Euclid, the state discovered that the city of Euclid admitted that “two pieces of clothing

were held for evidence[.]” At oral argument, the prosecutor defending the present appeal,

conceded that the two pieces of clothing referred to in the pleadings were most likely the

T-shirts.

       {¶21} Despite the many places searched and people contacted, the APA’s report

does not reflect that the state met its burden of investigating, with reasonable diligence,

all relevant sources that may have come into contact with evidence from this case.

Indeed, we do not see how the court could have concluded, without a hearing, that the

T-shirts do not exist.
       {¶22} Of particular concern is the limited nature in which the state investigated the

Euclid police department’s records, custodians, and property room. Although the APA

explains in his report that the state contacted the department’s records office, the report

does not indicate with whom the APA spoke, that person’s job title and/or duties, or the

person’s relationship to the records. The person’s responsibilities with respect to the

department’s records is relevant to the quality and reliability of the information provided

to the APA. Moreover, the APA’s report appears to take the spokesperson’s explanation

that the office changed computer systems two years prior and no longer has anything from

1996 at face value. The report offers no explanation regarding whether the APA asked

any follow-up questions about the system change or what might have happened to the

outdated records (e.g., were they destroyed, kept on an external hard drive, sent to the

county clerk’s office, sent to a dead files location etc.). Nor does the report explain the

department’s record retention policy or whether the APA ever inquired into whether the

department had a retention policy. The APA’s report in this regard does not reflect

reasonable diligence on the part of the state to locate the records of Rawls’s case that

would lead to the whereabouts of the evidence in question.
       {¶23} Furthermore, the APA states that Thomas Yanacek with the Euclid property

room checked the police records pertaining to Rawls’s case and was unable to locate any

evidence. Nevertheless, Yanacek was able to find a copy of a handwritten police report

authored by one of the detectives on the case, and was also able to check computer

records for evidence associated with the police report.        Although the APA in this

instance provides the court with the contact person’s name, the APA offers no

explanation of Yanacek’s job duties and responsibilities with regard to the property room.

 Additionally, there is no indication in the APA’s report whether Yanacek physically

searched the evidence room for the T-shirts, or simply ended his search once computer

records showed no physical evidence associated with the case.          The very fact that

Yanacek was able to locate at least some electronic/computer records of the case further

calls into question whether the spokesperson in the records office did a comprehensive

search for information related to Rawls’s case or whether he stopped once the system

indicated the records were not available. While we recognize that the separate offices

might not have integrated computer systems, reasonable diligence requires that the APA

at least ask and include this fact within the report. Further troubling is the fact that the

APA’s report relies on Yanacek’s opinion that “any evidence associated with Rawls’s

case had probably been destroyed,” without following-up on whether the department has

an evidence destruction policy and, if so, what it entails. Again, this shows a lack of

reasonable diligence on the part of the state.
       {¶24} Crucial to this court’s disposition on appeal is the fact that not a single

person, custodian, or department can say what happened to the T-shirts that were

indisputably collected as evidence in this case. This is troublesome in light of the fact

that the APA’s report tends to show that the Euclid police department either had

knowledge of, or possessed records pertaining to, the collection and storage of the

T-shirts as recently as 2010 when Rawls filed his Section 1983 action against the city of

Euclid in federal court. And in the six years since Rawls’s federal suit, the information

regarding the collection and storage of the T-shirts cannot be located, without sufficient

explanation or inquiry. Although the trial court must find that an eligible offender’s

application for DNA testing satisfies the statutory mandates of R.C. 2953.74(C), which

includes a finding that the evidence still exists, the burden of proving the evidence cannot

be located despite reasonably diligent efforts rests squarely on the state. See State v.

Ustaszewski, 6th Dist. Lucas No. L-05-1226, 2006-Ohio-329, ¶ 20. In its journal entry

denying the application for DNA testing, the trial court relied solely on the APA’s report

for its conclusion that the requested evidence does not exist. We find that the court acted

unreasonably in reaching this conclusion without a hearing when the APA’s report

establishes that the state conducted what could be viewed as a superficial investigation of

the Euclid police department’s records and property offices. Accordingly, we remand to

the trial court for a hearing.
       {¶25} Rawls’s second assignment of error is also well taken. In addition to

denying Rawls’s application for failing to satisfy R.C. 2953.74(C)(1), the trial court

stated, without further explanation, that even if the evidence were to exist, the results of

DNA testing would not be outcome determinative under R.C. 2953.74(C)(5). This court

has previously held that a trial court must state its reasons for reaching its conclusion that

DNA testing would not be outcome determinative. State v. Richard, 8th Dist. Cuyahoga

No. 99449, 2013-Ohio-3918, ¶ 8.

       {¶26} Judgment reversed and remanded.

       It is ordered that appellant recover of appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, JUDGE

MARY EILEEN KILBANE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
