[Cite as State v. Ingram, 2012-Ohio-333.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.       25843

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
BERNIE T. INGRAM                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 1990-05-0928(A)

                                 DECISION AND JOURNAL ENTRY

Dated: February 1, 2012



        MOORE, Judge.

        {¶1}     Appellant, Bernie T. Ingram, appeals from the judgment of the Summit County

Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}     In a prior appeal, State v. Ingram, 9th Dist. No. 15049, 1991 WL 284168, this

Court set forth the underlying factual and procedural history as follows:

        “On February 13, 1990, Larry Dixon discovered the body of his brother-in-law,
        Kenneth Mack, on the living room floor of Mack’s apartment. Mack, who was
        six feet tall and weighed approximately two hundred pounds, had been stabbed
        sixty-nine times. In the weeks preceding his death, Mack had purchased a wide-
        screen television, video cassette recorder (VCR), and an extensive stereo system.
        The above items, and others, were missing from Mack’s apartment at the time his
        body was discovered.

        “On May 11, 1990, as the result of an anonymous tip, the Akron Police
        Department discovered Mack’s television, VCR, and stereo equipment in the
        possession of [Ingram’s] step-brother, David McGhee. McGhee indicated that
        [Ingram] had given or sold Mack’s belongings to him. As a result of interviews
        with McGhee, [Ingram] was arrested for the death of Mack.
                                                 2


        “Because he was a minor at the time of Mack’s death, [Ingram] was originally
        charged in the Summit County Court of Common Pleas, Juvenile Division. On
        May 22, 1990, [Ingram] was indicted, as an adult, for receiving stolen property.
        On August 15, 1990, the Summit County Juvenile Court bound [Ingram] over as
        an adult to the Summit County Grand Jury. The grand jury returned an
        indictment on August 31, 1990, on two counts of aggravated murder.

        “Count one charged that [Ingram] purposely, with prior calculation and design,
        caused the death of Mack, R.C. 2903.01(A), and included the specification that
        the offense was committed while [Ingram] was committing or attempting to
        commit, as the principal offender, aggravated robbery, R.C. 2929.04(A)(7)
        (specification for imposing death or imprisonment for a capital offense). Count
        two charged, pursuant to the state’s felony murder statute, that [Ingram] purposely
        caused the death of Mack while committing, attempting to commit, or fleeing
        immediately after committing or attempting to commit aggravated robbery, R.C.
        2903.01(B). Count two also included the same specification as count one.

        “At trial, [Ingram] claimed he killed Mack in self-defense. [Ingram] testified that,
        on the night preceding Mack’s death, he and Mack had met in a local bar.
        [Ingram] agreed to accompany Mack to his apartment for more drinks, but fell
        asleep once he reached Mack’s apartment. [Ingram] claimed that he woke up as
        Mack was attempting to make sexual advances toward him. [Ingram], who is
        physically smaller than Mack, testified that he objected, but that Mack continued
        to overpower him. While the two wrestled, [Ingram] produced a small knife, and
        stabbed Mack. [Ingram] testified that, after killing Mack, he proceeded to empty
        the apartment of Mack’s belongings. In a series of four to five trips, [Ingram]
        carried Mack’s television, VCR, stereo equipment, clothing, lamps, and wall
        furnishings to his own home. Most of the above items were recovered and
        introduced at trial.

        “At the close of the evidence, the trial court instructed the jury on both counts of
        aggravated murder, as well as the receiving stolen property charge. In addition,
        the trial court instructed the jury on murder, R.C. 2903.02, and aggravated
        robbery, R.C. 2911.01, as lesser included offenses of aggravated murder.
        [Ingram] was found not guilty of both aggravated murder charges, but guilty of
        murder and aggravated robbery. [Ingram] was also found guilty of receiving
        stolen property. [Ingram] was sentenced to serve fifteen years to life on the
        murder charge, and five to twenty-five years on the aggravated robbery charge,
        sentences to run consecutively. [Ingram] received an eighteen month sentence on
        the receiving stolen property charge, to be served concurrently.” Id. at *1-2.

        {¶3}    On appeal, this Court affirmed his convictions for murder and receiving stolen

property, and reversed his conviction for aggravated robbery, leaving Ingram to serve a fifteen-

year to life prison term. Id. at *6.
                                                 3


          {¶4}   On October 29, 2010, Ingram filed an application for DNA testing pursuant to

R.C. 2953.72. In it he argued that had a pubic hair found near the victim’s body been tested, and

had the results shown that it belonged to Ingram, his claim that he was sexually assaulted by the

victim would have been strengthened. The application was denied on February 11, 2011.

          {¶5}   Ingram timely filed a notice of appeal. He raises one assignment of error for our

review.

                                                 II.

                                   ASSIGNMENT OF ERROR

          “THE TRIAL COURT COMMITTED PLAIN ERROR WHERE IT
          CONCLUDED THAT A NEW DNA TEST IN [INGRAM’S] FAVOR WOULD
          NOT BE OUTCOME DETERMINATIVE IN VIOLATION OF [INGRAM’S]
          ABSOLUTE RIGHT TO PROCEDURAL DUE PROCESS OF LAW AS
          GUARANTEED UNDER THE OHIO AND UNITED STATES
          CONSTITU[T]ION.”

          {¶6}   In his sole assignment of error, Ingram argues that the trial court erred when it

concluded that a new DNA test in Ingram’s favor would not be outcome determinative. We do

not agree.

          {¶7}   “We begin by noting that our standard of review as to the legal conclusions of the

trial court is de novo.” State v. Wilkins, 163 Ohio App.3d 576, 2005-Ohio-5193, ¶ 6 (9th Dist.),

citing State v. Rossiter, 9th Dist. No. 03CA0078, 2004-Ohio-4727, ¶ 5, citing State v. Russell,

127 Ohio App.3d 414, 416 (9th Dist.1998). “This Court is bound to ‘affirm a trial court’s

judgment that is legally correct on other grounds’ regardless of the arguments raised or not raised

by the parties.”     State v. Perez, 9th Dist. No. 23419, 2007-Ohio-2897, ¶ 28 (Carr, P.J.,

dissenting).

          {¶8}   Advances in DNA testing prompted the General Assembly in 2003 to enact R.C.

2953.71 through 2953.83. The statutes permit an eligible prison inmate who has been convicted
                                                 4


of a felony and who has at least a year remaining on his prison term to file with the common

pleas court a postconviction application for DNA testing of biological evidence upon which no

DNA test, or an inconclusive DNA test, has been conducted. See R.C. 2953.71(F), 2953.72(A)

and (C), 2953.73(A), and 2953.74(A) and (B).

        {¶9}     An eligible offender who “did not have a DNA test taken at the trial stage in the

case in which the offender was convicted” may submit an application for DNA testing under

R.C. 2953.73, but the court may accept the application only if the offender demonstrates “that

DNA exclusion when analyzed in the context of and upon consideration of all admissible

evidence * * * would have been outcome determinative at that trial stage in that case[.]”

(Emphasis added). R.C. 2953.74(B)(1). Ingram’s application for DNA testing asked “[w]ould

testing prove that it was not your DNA?” He responded “No [to the] contrary, it would prove it

was.”    Ingram’s argument centers on a DNA inclusion.           As such, Ingram is unable to

demonstrate that a DNA exclusion would be outcome determinative in accordance with R.C.

2953.74(B)(1).

        {¶10} Accordingly, Ingram’s sole assignment of error is overruled.

                                                III.

        {¶11} Ingram’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




        There were reasonable grounds for this appeal.
                                                 5


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     CARLA MOORE
                                                     FOR THE COURT



BELFANCE, P. J.
DICKINSON, J.
CONCUR

APPEARANCES:

BERNIE T. INGRAM, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
