[Cite as State v. Roberts, 134 Ohio St.3d 459, 2012-Ohio-5684.]




            THE STATE OF OHIO, APPELLEE, v. ROBERTS, APPELLANT.
         [Cite as State v. Roberts, 134 Ohio St.3d 459, 2012-Ohio-5684.]
Criminal law—R.C. 2933.82—Retention of biological evidence—The obligation
        to preserve and catalog criminal-offense-related biological evidence
        imposed upon certain government entities by R.C. 2933.82 applies to
        evidence in the possession of those entities at the time of the statute’s
        effective date.
 (No. 2011-1882—Submitted September 25, 2011—Decided December 6, 2012.)
   APPEAL from the Court of Appeals for Guernsey County, No. 10CA000047,
                                     2011-Ohio-4969.
                                  __________________
                                SYLLABUS OF THE COURT
The obligation to preserve and catalog criminal offense-related biological
        evidence imposed upon certain government entities by R.C. 2933.82
        applies to evidence in the possession of those entities at the time of the
        statute’s effective date.
                                  __________________
        O’CONNOR, C.J.
        {¶ 1} In this appeal, we decide whether the obligation to preserve and
catalog criminal-offense-related biological evidence imposed upon certain
government entities by R.C. 2933.82 applies to evidence in the possession of
those entities at the time of the statute’s effective date.       We hold that R.C.
2933.82 is not retroactive, but that it does apply to biological evidence in the
possession of governmental evidence-retention entities at the time of its effective
date. Accordingly, we reverse the judgment of the court of appeals and remand to
the trial court for further proceedings consistent with this opinion.
                             SUPREME COURT OF OHIO




                             RELEVANT BACKGROUND
       {¶ 2} In September 1997, a jury found appellant, Clarence D. Roberts,
guilty of aggravated murder, with a specification of aggravating circumstances,
and aggravated robbery in connection with the death of Leo Stinnett. Following
the jury’s recommendation, the trial court sentenced Roberts to life imprisonment
without parole. Roberts’s convictions and sentence were affirmed on appeal. See
State v. Roberts, 5th Dist. No. 97CA29, 1999 WL 3956 (Nov. 24, 1998).
       {¶ 3} On September 30, 2010, Roberts filed a pro se motion in the trial
court to order the preservation and listing of evidence.             Roberts sought
preservation of the physical evidence and a certified list of all evidence so that he
could retain an expert to conduct “touch DNA” analysis. Roberts argued that
because the prosecution’s theory had relied on the testimony of a John LaFollett,
he wanted an expert to perform touch DNA analysis on the evidence, “specifically
including the pocket of the victim which was turned out when the wallet was
taken, to determine whether John LaFollett’s DNA can be found.”
       {¶ 4} On November 30, 2010, the trial court denied Roberts’s motion,
finding that “even if John LaFollett’s DNA could be found on the clothing of the
victim, specifically the pocket, the evidence would not disclose a strong
probability that it would change the result if a new trial would be granted and
merely would impeach and contradict the former evidence.”
       {¶ 5} Roberts appealed to the Fifth District Court of Appeals. In his
single assignment of error, he argued that the trial court erred as a matter of law in
denying his motion to order the preservation and listing of evidence, in violation
of R.C. 2933.82. State v. Roberts, 5th Dist. No. 10CA000047, 2011-Ohio-4969,
¶ 5.
       {¶ 6} R.C. 2933.82 provides:




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       (B)(2) This section applies to evidence likely to contain
biological material that was in the possession of any governmental
evidence-retention entity during the investigation and prosecution
of a criminal case * * *.
       (3) A governmental evidence-retention entity that possesses
biological evidence shall retain the biological evidence in the
amount and manner sufficient to develop a DNA profile from the
biological material contained in or included on the evidence.
       (4) Upon written request by the defendant in a criminal
case or the alleged delinquent child in a delinquent child case
involving a violation of section 2903.01, 2903.02, or 2903.03, a
violation of section 2903.04 or 2903.06 that is a felony of the first
or second degree, a violation of section 2907.02 or 2907.03 or of
division (A)(4) or (B) of section 2907.05 of the Revised Code, or
an attempt to commit a violation of section 2907.02 of the Revised
Code, a governmental evidence-retention entity that possesses
biological evidence shall prepare an inventory of the biological
evidence that has been preserved in connection with the
defendant’s criminal case or the alleged delinquent child’s
delinquent child case.
       (5) Except as otherwise provided in division (B)(7) of this
section, a governmental evidence-retention entity that possesses
biological evidence that includes biological material may destroy
the evidence before the expiration of the applicable period of time
specified in division (B)(1) of this section * * *:
       ***
       (7) A governmental evidence-retention entity that possesses
biological evidence that includes biological material may destroy




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      the evidence five years after a person pleads guilty or no contest to
      a violation of section 2903.01, 2903.02, or 2903.03, a violation of
      2903.04 or 2903.06 that is a felony of the first or second degree, a
      violation of section 2907.02, 2907.03, division (A)(4) or (B) of
      section 2907.05, or an attempt to commit a violation of section
      2907.02 of the Revised Code and all appeals have been exhausted
      unless, upon a motion to the court by the person who pleaded
      guilty or no contest or the person’s attorney and notice to those
      persons described in division (B)(5)(b) of this section requesting
      that the evidence not be destroyed, the court finds good cause as to
      why that evidence must be retained.
              ***
              (C)(1) The preservation of biological evidence task force
      established within the bureau of criminal identification and
      investigation under section 109.561 [109.56.1] of the Revised
      Code shall establish a system regarding the proper preservation of
      biological evidence in this state. In establishing the system, the
      task force shall do all of the following:
              (a) Devise standards regarding the proper collection,
      retention, and cataloguing of biological evidence for ongoing
      investigations and prosecutions;
              (b) Recommend practices, protocols, models, and resources
      for the cataloging and accessibility of preserved biological
      evidence already in the possession of governmental evidence-
      retention entities.


      {¶ 7} In overruling Roberts’s assignment of error, the appellate court
maintained that because R.C. 2933.82 became effective on July 6, 2010, and



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Roberts was convicted in 1997, the statute would have to be applied
retrospectively if it were to apply at all in this case. Roberts, 2011-Ohio-4969,
¶ 13. However, a statute is retrospective only if it contains an express, clear
provision for retroactive application, and the appellate court noted that there was
no such provision in R.C. 2933.82. Id. at ¶ 13.
        {¶ 8} The court of appeals rejected Roberts’s argument that the use of
the verb “was” in R.C. 2933.82(B)(2) implied retroactive application. Id. at ¶ 14.
The Fifth District stated that because the statute sets forth requirements involving
the preservation of evidence after conviction, the word “was” refers to evidence in
possession of any governmental evidence-retention entity during the investigation
and prosecution of a criminal case after July 6, 2010. Id. at ¶ 14. Finally, it
reasoned that the state could not do what it did not know it had to do, that is, meet
the standards outlined in R.C. 2933.82 in cases that arose prior to its effective
date. Id. at ¶ 14.
        {¶ 9} Furthermore, the court of appeals stated that the statute created
new rights and imposed new duties upon the state to preserve biological evidence
or to notify certain individuals in the event the evidence was to be destroyed. Id.
at ¶ 15. For instance, a task force established within the state Bureau of Criminal
Identification and Investigation, see R.C. 109.561, was directed to establish a
system for the proper preservation of biological evidence in Ohio. In establishing
that system, the task force was directed to (1) “[d]evise standards regarding the
proper collection, retention, and cataloguing of biological evidence for ongoing
investigations and prosecutions” and (2) “[r]ecommend practices, protocols,
models, and resources for the cataloguing and accessibility of preserved
biological evidence already in the possession of governmental evidence-retention
entities.” R.C. 2933.82(C)(1)(a) and (b).
        {¶ 10} Because the victim’s clothing was not preserved pursuant to the
practices and protocols created under the new task force, the court of appeals held




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that Roberts could not benefit from retrospective application of the statute. Id. at
¶ 18. Therefore, the court of appeals held that the provisions of R.C. 2933.82
were to be applied prospectively only, id. at ¶ 19, and affirmed the judgment of
the trial court, id. at ¶ 21.
        {¶ 11} We granted Roberts discretionary review, 131 Ohio St.3d 1437,
2012-Ohio-331, 960 N.E.2d 986, and agreed to determine whether R.C. 2933.82
applies to biological evidence already in the possession of governmental
evidence-retention entities at the time of the statute’s effective date of July 6,
2010.
                                      ANALYSIS
                          Historical Context of R.C. 2933.82
        {¶ 12} “[W]e must construe [statutes] in a manner that carries out the
intent of the General Assembly.” Sheet Metal Workers’ Internatl. Assn., Local
Union No. 33 v. Gene’s Refrigeration, Heating & Air Conditioning, Inc., 122
Ohio St.3d 248, 2009-Ohio-2747, 910 N.E.2d 444, ¶ 29, citing Harris v. Van
Hoose, 49 Ohio St.3d 24, 26, 550 N.E.2d 461 (1990). In order to determine
legislative intent, “[w]e look to the language of the statute, the circumstances
under which the statute was enacted, legislative history, and the consequences of a
particular construction.” Id. See R.C. 1.49; Cleveland Mobile Radio Sales, Inc. v.
Verizon Wireless, 113 Ohio St.3d 394, 2007-Ohio-2203, 865 N.E.2d 1275, ¶ 12.
        {¶ 13} R.C. 2933.82 was enacted as a product of the “Innocence
Movement,” which “refers to a related set of activities by lawyers, cognitive and
social psychologists, other social scientists, legal scholars, government personnel,
journalists, documentarians, freelance writers, and citizen-activists who, since the
mid-1990s, have worked to free innocent prisoners and rectify perceived causes of
miscarriages of justice in the United States.” Zalman, An Integrated Justice
Model of Wrongful Convictions, 74 Alb.L.Rev. 1465, 1468 (2011).




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       {¶ 14} One mission of the movement was to create innocence projects at
law schools “to investigate claims of wrongful convictions, especially in cases
where DNA testing is not possible but there are serious doubts about the
reliability of the conviction.” Id. at 1497. The innocence projects often rely on
modern technology and scientific advancements, considering that one of the best
tools modern science has to offer the criminal-justice system is the ability to
conclusively and correctly identify a particular individual by the source of DNA
found at a crime scene. The innocence projects not only shed light on the fact that
biological evidence and DNA are critical components of the criminal-justice
system, because they are often the link to solving crimes; they also highlight the
need for the preservation and storage of the DNA and biological evidence as a
way to exonerate wrongfully convicted individuals.
       {¶ 15} As a result of the movement, several law schools created
innocence projects, including the Innocence Project affiliated with Benjamin N.
Cardozo School of Law in 1992 and the Center on Wrongful Convictions at
Northwestern Law School in 1998. Id. at 1489, 1518-1519. By 2000, there were
more than 50 innocence projects throughout the country. Id. at 1499. Moreover,
“[t]he average number of annual DNA exonerations * * * grew from 6 per year
between 1989 and 1999, to 18.1 per year from 2000 to 2009.” Id., citing Know
the Cases: Browse Profiles, Innocence Project, http://www.innocenceproject.org
/know/Browse-Profiles.php.     “Reforms, such as legislation establishing post-
appeal jurisdiction for DNA testing,” were also taking place throughout the
country. Id., citing Rachel Steinback, Comment, The Fight for Post-Conviction
DNA Testing Is Not Yet Over: An Analysis of the Eight Remaining “Holdout
States” and Suggestions for Strategies to Bring Vital Relief to the Wrongfully
Convicted, 98 J.Crim.L. & Criminology 329, 336 (2007).
       {¶ 16} By 2003, over 140 wrongfully convicted individuals across the
nation had been exonerated by reexamining DNA evidence.            Gross, Jacoby,




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Matheson, Montgomery & Patil, Exonerations in the United States 1989 Through
2003, 95 J.Crim.L. & Criminology 523, 524 (2005).
       {¶ 17} That same year, the Ohio Innocence Project was founded at the
University of Cincinnati College of Law.               Ohio Innocence Project,
http://law.uc.edu/o-i-p (accessed Nov. 27, 2012); Godsey, False Justice and the
“True” Prosecutor: A Memoir, Tribute, and Commentary, 9 Ohio St.J.Crim.L.
789, 790 (2012). Also, the General Assembly passed an act to “establish a
mechanism and procedures for the DNA testing of certain inmates serving a
prison term for a felony or under a sentence of death.” Title, Sub.S.B. No. 11,
150 Ohio Laws, Part IV, 6498, 6498.
       {¶ 18} Despite these changes, there were no statewide procedures for
preserving or storing biological evidence, resulting in inconsistent storage
techniques by governmental entities throughout the state. The lack of consistency
in preserving and storing evidence allowed evidence to be compromised, lost, or
prematurely destroyed.
       {¶ 19} Having recognized that proper preservation promotes justice and
prevents injustice and that the lack of guidelines for the preservation and storage
of evidence could lead to grave results, on March 24, 2010, the General Assembly
enacted R.C. 2933.82, 2010 Sub.S.B. No. 77 (“S.B. 77”). S.B. 77 rectified the
inconsistencies for preserving and storing biological evidence by establishing a
task force charged with creating a uniform system and standards. At the time it
was enacted, S.B. 77 was heralded as a national model for reforms to protect the
innocent from wrongful conviction by imposing a duty upon law-enforcement
agencies to store and maintain biological evidence. Innocence Project, March 16,
2010   press   release,   http://www.innocenceproject.org/Content/Ohio_Passes_
Major_Package_of_Reforms_on_Wrongful_Convictions_Governor_Is_Expected
_to_Sign_Bill_Making_Ohio_a_National_Model.php (accessed Nov. 27, 2012);




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S. Michael Lear, Ohio’s Senate Bill 77: A National Model of Reform, Vindicator
(Spring 2011) 8.
       {¶ 20} With this historical backdrop of S.B. 77 in mind, we now address
whether R.C. 2933.82 is a retroactive statute.
                       The plain language of R.C. 2933.82
       {¶ 21} “It is a cardinal rule that a court must first look to the language of
the statute itself to determine the legislative intent. * * * If that inquiry reveals
that the statute conveys a meaning which is clear, unequivocal and definite, at that
point the interpretative effort is at an end, and the statute must be applied
accordingly.” Provident Bank v. Wood, 36 Ohio St.2d 101, 105-106, 304 N.E.2d
378 (1973).
       {¶ 22} The parties disagree over what R.C. 2933.82 requires.
       {¶ 23} Roberts’s argument is that the plain language of R.C. 2933.82
indicates the General Assembly’s intent that the statute applies to evidence in the
possession of governmental entities at the time the statute was enacted. Roberts’s
primary support for this argument is that R.C. 2933.82(C)(1)(b) requires the
newly created preservation-of-biological-evidence task force to “[r]ecommend
practices, protocols, models, and resources for the cataloging and accessibility of
preserved biological evidence already in the possession of governmental
evidence-retention entities.” (Emphasis added.)
       {¶ 24} As additional support, Roberts cites R.C. 2933.82(A)(1)(a)(ii),
which defines “biological evidence” as “[a]ny item that contains blood, semen,
hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids, or any other
identifiable biological material that was collected as part of a criminal
investigation or delinquent child investigation and that reasonably may be used to
incriminate or exculpate any person for an offense or delinquent act.” (Emphasis
added.) R.C. 2933.82(B)(2) also states that the requirement to secure biological
evidence applies to evidence that “was in the possession” of a governmental




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evidence-retention entity during the investigation and prosecution of specified
offenses. Also, Roberts argues that R.C. 2933.82(B)(4) provides that when a
defendant, such as himself, requests that a government entity “that possesses
biological evidence” prepare an inventory of that evidence, the government
agency shall do so. (Emphasis added.) Thus, Roberts argues that R.C. 2933.82
repeatedly states that governmental evidence-retention entities must retain
biological evidence that was already in their possession at the time the statute was
enacted. See, e.g., R.C. 2933.82(B)(3), (5), and (7).
       {¶ 25} We agree with Roberts that the language of R.C. 2933.82 is clear.
The General Assembly repeatedly used the phrases “was in the possession” or
“possesses,” which shows an unequivocal intent that the duty to preserve and
catalog biological evidence applies to evidence that was in the government’s
possession at the time of the statute’s enactment. The General Assembly did not
specify that the statute was to apply only to evidence that would come into the
possession of the governmental entities after its enactment.          Moreover, the
General Assembly did not qualify the word “possesses” based on when the
evidence was gathered.
       {¶ 26} Our holding is supported by the historical context during which
this statute was enacted.     Because DNA and biological evidence play such
significant roles in the judicial system, it is imperative that law-enforcement
agencies handle all evidence with extreme care. We believe that it was in that
spirit that the General Assembly enacted R.C. 2933.82.
                     R.C. 2933.82 is not a retroactive statute
       {¶ 27} The state argues that because Roberts was convicted in 1997, the
statute is not applicable to evidence collected in his case unless it is applied
retroactively. The state argues that because R.C. 2933.82 contains no express
intent that it apply retroactively, it applies prospectively only. The state begins by
citing the Ohio Constitution, Article II, Section 28, which provides that the



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General Assembly “shall have no power to pass retroactive laws.” The state also
relies on R.C. 1.48, which provides that “[a] statute is presumed to be prospective
in its operation unless expressly made retrospective.” The state argues that it
would be unfair to expect the state to have collected evidence in Roberts’s 1997
case in accordance with procedures adopted in 2010.
         {¶ 28} Roberts counters that this case is not about retroactivity. Roberts
asserts that the plain language of the statute requires that the obligation to
preserve and catalog evidence applies to biological evidence collected after the
statute was enacted as well as to biological evidence in the possession of law-
enforcement agencies at the time of the statute’s enactment in July 2010. We
agree.
         {¶ 29} The retroactivity analysis does not apply to this case and should
not have been applied by the court of appeals. We have held that “ ‘[a] statute is
not retroactive merely because it draws on antecedent facts for a criterion in its
operation.’ ” Schoenrade v. Tracy, 74 Ohio St.3d 200, 204, 658 N.E.2d 247
(1996), quoting United Eng. & Foundry Co. v. Bowers, 171 Ohio St. 279, 282,
169 N.E.2d 697 (1960). Therefore, the use of prior facts, or material, does not
make application of the statute retroactive.
         {¶ 30} Here, R.C. 2933.82 “draws upon antecedent facts” because it
applies to biological evidence that is “already in the possession of” or “was in the
possession of” governmental entities at the time it was enacted. These phrases do
not make R.C. 2933.82 retroactive, especially considering that there is no
showing that the General Assembly expressly intended for the statute to apply
retroactively. Again, the historical setting in which R.C. 2933.82 was enacted
supports our holding.
                                    Conclusion
         {¶ 31} We hold that the obligation to preserve and catalog criminal-
offense-related biological evidence imposed upon certain government entities by




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R.C. 2933.82 applies to evidence in the possession of those entities at the time of
the statute’s effective date. Therefore, we reverse the judgment of the court of
appeals and remand the cause to the trial court to order the preservation and
cataloguing of the physical evidence from Roberts’s case, pursuant to his motion,
and for any other proceedings that may become necessary.
                                                                 Judgment reversed
                                                                and cause remanded.
       PFEIFER, LUNDBERG STRATTON, O’DONNELL, LANZINGER, CUPP, and
MCGEE BROWN, JJ., concur.
                              __________________
       Daniel G. Padden, Guernsey County Prosecuting Attorney, for appellee.
       Timothy Young, Ohio Public Defender, and Kristopher A. Haines and
Craig M. Jacquith, Assistant Public Defenders, for appellant.
       Paul A. Dobson, Wood County Prosecuting Attorney, and David E.
Romaker Jr., Assistant Prosecuting Attorney, urging affirmance on behalf of
amicus curiae Ohio Prosecuting Attorneys Association.
       Davis Polk & Wardwell, L.L.P., and Sharon Katz, urging reversal on
behalf of amicus curiae the Innocence Network.
                           _______________________




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