[Cite as State v. Davis, 2015-Ohio-4481.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                    No. 15AP-518
v.                                                :            (C.P.C. No. 11CR-2313)

Levander R. Davis,                                :           (REGULAR CALENDAR)

                 Defendant-Appellant.             :


                                            D E C I S I O N

                                     Rendered on October 29, 2015


                 Ron O'Brien, Prosecuting Attorney, and Barbara A.
                 Farnbacher, for appellee.

                 Levander R. Davis, pro se.

                   APPEAL from the Franklin County Court of Common Pleas

TYACK, J.
        {¶ 1} Levander R. Davis is appealing from the denial of his petition for post-
conviction relief. He assigns five errors for our consideration:
                 [1.] THE TRIAL COURT ERRED, AND DUE PROCESS WAS
                 DENIED, WHEN THE COURT FAILED TO HOLD AN
                 EVIDENTIARY HEARING ON THE APPELLANT'S POST-
                 CONVICTION PETITION.

                 [2.] THE TRIAL COURT ERRED, AND DUE PROCESS WAS
                 DENIED, WHEN THE COURT FAILED TO PROVIDE
                 RELIEF PURSUANT TO THE MANY CONSTITUTIONAL
                 VIOLATIONS RELATED TO PRETRIAL IDENTIFICATION.

                 [3.] THE TRIAL COURT ERRED, AND DUE PROCESS WAS
                 DENIED, WHEN THE COURT FAILED TO PROVIDE
                 RELIEF RELATED TO THE .40 CALIBER HANDGUN.
No. 15AP-518                                                                            2


              [4.] THE TRIAL COURT ERRED, AND DUE PROCESS WAS
              DENIED, WHEN THE COURT FAILED TO PROVIDE
              RELIEF RELATED TO THE SEARCH WARRANT FOR
              BUCCAL SWABS, WHICH WAS INVALID BECAUE IT WAS
              NOT SIGNED BY A JUDGE OR MAGISTRATE.

              [5.] THE TRIAL COURT ERRED, AND DUE PROCESS WAS
              DENIED, WHEN THE COURT FAILED TO PROVIDE
              RELIEF RELATED TO POLICE OFFICER'S MISHANDLING
              OF THE BUCCAL SWABS TAKEN FROM THE APPELLANT
              FOR THE PURPOSES OF DNA TESTING.

       {¶ 2} Davis appealed his conviction previously, and a panel of this court affirmed
the action of the trial court. State v. Davis, 10th Dist. No. 12AP-156, 2013-Ohio-2770. In
our earlier decision, we wrote:
              On May 2, 2011, defendant was indicted on one count each of
              murder, attempted murder, felonious assault, having a weapon
              while under disability, and illegal possession of a firearm in a
              liquor permit premises. Each charge also carried a firearm
              specification. Upon application of the assistant prosecuting
              attorney, and for good cause shown, the trial court ordered that
              a nolle prosequi be entered as to the illegal possession of a
              firearm in a liquor permit premises charge. Following trial,
              defendant was found guilty of the remaining charges in the
              indictment. The events giving rise to the indictment occurred
              during the early morning hours of March 8, 2012.

              On March 8, 2012, defendant was a patron at Mike's Bar in
              Columbus, Ohio. The area where Mike's Bar is located is a high-
              crime area known to have gang related activity. That night, there
              were several patrons inside the bar near defendant, including
              Brandon Houston, DeAndre Fagain, and Dimetri Evans, all of
              whom testified at defendant's trial.

              Houston testified that he was at the bar with his friends,
              Tumarcus Steele, Donatello Taliaferro, Fagain, and a man
              named Al, whose last name Houston did not know. According to
              Houston, there were approximately 40 patrons inside Mike's
              Bar that evening. Houston testified that he observed defendant
              at the bar with two other men, neither of whom Houston knew:
              Tracy Ferguson, Jr., and a man with tattoos on his face who was
              later identified as Evans. Shortly after Houston arrived, he saw
              defendant lift his shirt and expose a gun. At the same time,
              Houston observed Ferguson "throwing up gang signs in the
No. 15AP-518                                                                     3


           mirror." (Tr. 101.) At that time, Evans approached Ferguson and
           tried to get him to stop. Instead, Ferguson became more hostile
           and began arguing with Evans and defendant. At that time,
           Houston observed defendant reach for his hip and extend his
           arm. Houston heard the first gun shot at which time he turned
           and ran into the bathroom. According to Houston, he heard
           three gun shots, followed by silence and then additional gunfire
           and screaming. Houston stayed in the bathroom until the bar
           was quiet. Houston did not see defendant actually fire the gun
           and did not see anyone get shot. As he left the bar, Houston
           stumbled on a magazine clip from a gun which he pointed out to
           police.

           Fagain testified that he observed three people in the bar having
           an argument, and described one of those men as trying to calm
           down one of the other two men. Fagain observed defendant first
           hit Ferguson and then pull out a gun and shoot Ferguson. Fagain
           testified further that, after defendant shot Ferguson, defendant
           "just started shooting up the club." (Tr. 260.) Fagain testified
           that defendant was the only one shooting at the time. When the
           shooting began, Fagain turned to run and was shot several
           times.

           Evans was at the bar that night with defendant and Ferguson.
           Evans' testimony corroborated Houston's testimony that
           Ferguson was throwing up gang signs. Evans testified that he
           knew defendant had several different guns, he knew defendant
           frequently carried a gun, and sometimes carried more than one
           gun. Evans testified that he saw defendant with a gun on the
           night in question, and saw defendant shoot Ferguson.

           Columbus Police Officer Jim Thiel was the first officer to arrive
           at the scene. Officer Thiel saw four to five shell casings lying in
           the entrance to the bar. Columbus Police Officer Timothy
           Mounts testified that eleven 9mm spent shell casings were
           recovered from the north end of the bar and that, in that same
           area, thirty-three 40 caliber spent shell casings were also
           recovered. It was determined that the 9mm shell casings had
           been fired from a 9mm gun which was later recovered from
           defendant. Columbus Police Officer Kevin Jackson testified and
           identified photographs he took at the scene. Columbus Police
           Detective Jacqueline Mitchell identified evidence which she
           collected and logged, including a black ammunition magazine
           clip found near the entrance to the bar.
No. 15AP-518                                                                          4


                 Columbus Police Sergeant Jeff Matthias testified concerning the
                 circumstances surrounding defendant's arrest. At the time of his
                 arrest, defendant admitted that he had a gun in his waistband.
                 Sergeant Matthias identified the gun recovered from defendant
                 as a loaded 9mm Smith & Wesson. A ballistics expert
                 determined that the 9mm casings found at the scene were fired
                 from defendant's handgun. The 40 caliber handgun was never
                 recovered.

                 The magazine clip Houston saw in the doorway was recovered
                 and was determined to be a 40 caliber handgun magazine clip.
                 DNA obtained from the magazine clip was compared to a sample
                 of defendant's DNA and it was determined that defendant was a
                 major contributor to the DNA on the magazine clip. During
                 cross-examination, the forensic scientist who processed the
                 DNA sample explained that a major contributor "relates to the
                 quantity of that DNA being left on that item." (Tr. 597.) The
                 analyst also testified that DNA can be transferred from one
                 object to another.

                 Defendant's counsel called Columbus Police Detective Robert
                 Wachalec to testify. Detective Wachalec was the blind
                 administrator for a photo array presented to Fagain. In his
                 report regarding the photo array, Detective Wachalec indicated
                 that Fagain identified Evans as the shooter. Detective Wachalec
                 testified at trial that his summary of the identification was not
                 accurate, because Fagain had actually identified defendant as
                 the shooter.

                 Following a sentencing hearing on January 18, 2012, defendant
                 was sentenced to serve 15 years to life for the murder conviction,
                 ten years for the attempted murder conviction, eight years for
                 the felonious assault conviction, three years for having a weapon
                 while under disability conviction, and three years for each
                 firearm specification. The trial court ordered that defendant
                 serve the attempted murder, felonious assault, and having a
                 weapon while under disability sentences concurrently to each
                 other, but consecutive to the murder sentence and consecutive
                 to the firearm specifications. The court merged two of the
                 sentences for the firearm specifications. The court further
                 ordered that defendant serve the sentence herein consecutive to
                 a ten years prison sentence from common pleas case No. 11CR-
                 2202, for a total prison term of 44 years to life.

Id. at ¶ 2-11.
No. 15AP-518                                                                                5


       {¶ 3} In June 2013, Davis filed a petition for post-conviction relief with minimal
evidence attached to the petition. The trial court judge assigned to the case found
insufficient evidence to warrant a full evidentiary hearing. We review that finding under
an abuse-of-discretion standard. "The term 'abuse of discretion' connotes more than an
error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
       {¶ 4} We cannot find that the judge abused his discretion in refusing to conduct an
evidentiary hearing. The first assignment of error is overruled.
       {¶ 5} The trial court judge filed a written decision on April 23, 2015 denying the
petition for post-conviction relief. The trial court wrote:
               In the petition to vacate the judgment, Defendant argues that
               he was denied effective assistance of counsel and that his DNA
               was improperly seized. The Defendant failed to attach any
               evidence to support either claim. In fact, the Defendant's claim
               regarding the warrant for the DNA was improper is incorrect.
               Defendant makes the claim that the warrant was never signed
               when in fact it was. In addition, each of the Defendant's claims
               in his post conviction petition could have been or were
               addressed on direct appeal and are, therefore, barred by the
               doctrine of res judicata. State v. Mack, 10th Dist. No. 13AP-
               884, 2014-Ohio-1648.

       {¶ 6} The trial court judge's findings that the doctrine of res judicata barred relief
are correct. Everything alleged by Davis was either litigated during the trial or could have
been litigated at the trial.
       {¶ 7} Further, Davis's DNA was in possession of the State of Ohio as a result of his
past criminal activity. The swabs seized from him additionally were seized legally after a
search warrant was issued to obtain them. The fact that the return warrant was not signed
does not mean the warrant itself was not signed. The fourth and fifth assignments of error
are overruled.
       {¶ 8} Davis was well-known to at least one of the witnesses who testified at the trial.
Identification of him as being present at Mike's Bar was not in serious question. The second
assignment of error is overruled.
       {¶ 9} The issue regarding the .40-caliber handgun was fully developed during the
trial. The jury had the issue before it and still entered guilty findings. This issue was even
No. 15AP-518                                                                           6


more clearly subject to the doctrine of res judicata. The third assignment of error is
overruled.
      {¶ 10} All five of Davis's assignments of error having been overruled, the judgment
of the Franklin County Court of Common Pleas is affirmed.
                                                                    Judgment affirmed.
                             KLATT and DORRIAN, JJ., concur.
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