[Cite as State v. Emerick, 2011-Ohio-5543.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                         :

        Plaintiff-Appellee                            :            C.A. CASE NO.        24215

v.                                                    :            T.C. NO.   94CR1548

EDMUND E. EMERICK, III                         :           (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                    :

                                                      :

                                              ..........

                                              OPINION

                         Rendered on the       28th       day of   October    , 2011.

                                              ..........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

MARK GODSEY, Atty. Reg. No. 0074484, Ohio Innocence Project, P. O. Box 210040,
University of Cincinnati College of Law, Cincinnati, Ohio 45221
       Attorney for Defendant-Appellant

                                              ..........

FROELICH, J.

        {¶ 1} Edmund E. Emerick appeals from a judgment of the Montgomery County

Court of Common Pleas, which denied his motion for further DNA testing.                    For the

following reasons, the trial court’s judgment will be affirmed in part, reversed in part, and
                                                                                            2

remanded for further proceedings.

                                                  I

       {¶ 2} In 1996, Emerick was indicted for one count of aggravated robbery and two

counts of aggravated murder, with death penalty specifications, arising out of the killings of

Robert Knapke and Frank Ferraro during a robbery of the Sloopy’s bar in Dayton.

According to the coroner, Knapke and Ferraro died from blunt-force injuries to their heads,

consistent with blows from a hammer. The police discovered that a safe and a two-wheeled

dolly were missing from the bar, and that a cigarette vending machine in the bar had been

broken into.

       {¶ 3} At trial, the State presented eyewitness testimony that Emerick had been

outside of Sloopy’s around 11:00 a.m. on March 19, 1994, the day the crimes were

committed. Other witnesses testified that Emerick, a former manager of another bar located

approximately one block from Sloopy’s, had previously been in the office area of Sloopy’s,

where the safe was located. The dolly and the safe were located near businesses that

Emerick frequented in another area of Dayton; a dolly was found behind a laundromat after

Emerick came to retrieve his laundry, and the safe was located near a nearby hardware store.

 A handwritten letter about the crime, allegedly written by the perpetrator, was mailed to a

local television station approximately one week after the murders; an FBI handwriting expert

testified that it was “extremely likely” that the letter was prepared by Emerick. Two tool

mark examiners testified that tool marks found on the cigarette machine matched the tire

iron located in Emerick’s car. A man who had been in jail with Emerick after his arrest

testified that Emerick had stated that he wished that he had taken the murder weapon with
                                                                                                3

him and other incriminating statements.

       {¶ 4} Numerous blood samples were collected from the men’s bathroom and the

middle/food preparation room at Sloopy’s, where Ferraro and Knapke were killed,

respectively. These items, in addition to a claw hammer, the tire iron, and carpet from

Emerick’s car, were tested for blood type (ABO) and PGM enzyme type. Blood was also

found on Emerick’s left shoe and jacket; these items were sent to an independent laboratory

for DNA testing. A former forensic scientist with the Miami Valley Regional Crime Lab

testified that no blood was found on the tire iron. Although the carpet had blood on it, the

species could not be determined. One blood sample from a wall showed a blood type of

AB, which differed from the victims, but the other blood evidence was consistent with

having come from the victims. There was no testimony regarding Emerick’s blood type.

The results of the DNA testing of Emerick’s clothing were inconclusive. No DNA evidence

linking Emerick to the murders of Knapke and Ferraro was presented at trial.

       {¶ 5} The jury found Emerick guilty of all charges and specifications and

recommended life in prison. The trial court sentenced him accordingly. We affirmed

Emerick’s convictions on direct appeal. State v. Emerick (June 6, 1997), Montgomery App.

No. 15768 (“Emerick I”).

       {¶ 6} On October 28, 2005, Emerick filed an application for post-conviction DNA

testing with the trial court, seeking to test: (1) the hammer; (2) fingernail clippings; (3) blood

tins; (4) screwdriver bits; (5) paper towels and cloth towels; (6) vials of blood; (7) carpet

from his automobile; (8) his clothing; and (9) hair samples. Emerick asserted that “DNA

testing could be conclusive proof of innocence, particularly if a match was made on different
                                                                                             4

items that was not the DNA profile of either victim (for example, a match between the

hammer & DNA collected from fingernail clippings). Further, DNA could prove who was

the real murderer. ***”

          {¶ 7} In February 2006, the trial court overruled Emerick’s application for

post-conviction DNA testing. The trial court held that DNA testing was generally accepted

and available in 1996.      Thus, Emerick’s application “fails under [R.C.] 2953.74(B)(1)

because all biological material that he wishes to test was available for testing at the time of

trial.”    The trial court further noted that Emerick’s clothing had been tested and an

“inconclusive” test result had been obtained; it concluded, however, that any additional

DNA testing of that evidence would not be outcome determinative of a not-guilty finding at

trial.

          {¶ 8} Emerick appealed the trial court’s denial of his application. He argued that

he should have been allowed to test the following items for DNA: (1) fingernail scrapings of

the victims, (2) swabs of blood taken from the bathroom wall in Sloopy’s, (3) genetic

material on the hammer and screwdriver bits used to murder Knapke and Ferraro, (4) blood

stains found on Emerick's jacket cuff and shoe, and (5) stains on the carpet of Emerick’s

motor vehicle. (These items represented many, but not all, of the evidentiary materials

included in Emerick’s application; for example, Emerick did not focus on the paper towels

on appeal.) Emerick claimed that if these items were to be tested for DNA, the results

would demonstrate the presence of a third unknown person at the crime scene. Emerick

further asserted that DNA testing of the genetic material would effectively demonstrate that

he was not present at the bar when the murders were committed, and thus, could not have
                                                                                            5

been the perpetrator of the crimes.

       {¶ 9} On October 10, 2006, while his appeal of the trial court’s denial of DNA

testing was pending, Emerick filed a second application for DNA testing. In his second

application, Emerick requested DNA testing of the same biological material that was listed

in the first application, namely the “hammer; victims’ fingernail clippings; blood tins; vials

of blood; screw driver bits; paper and cloth towels; automobile carpet; clothing; [and] hair

samples.” His supporting memorandum argued that Short Tandem Repeat (“STR”) DNA

testing “is capable of excluding Emerick as the source of the biological materials and

establishing his innocence of the crime. If Mr. Emerick is in fact excluded through DNA

testing, the test results could be used to identify the true perpetrator of the crime.”

       {¶ 10} On March 23, 2007, prior to the trial court’s ruling on Emerick’s second

application, we reversed the trial court’s February 2006 decision. State v. Emerick, 170

Ohio App.3d 647, 2007-Ohio-1334 (“Emerick II”). We noted that Y-Chromosome Short

Tandem Repeat (“Y-STR”) DNA Analysis was not available at the time of Emerick’s trial

and that the development of Y-STR technology was partially responsible for the General

Assembly’s decision to enact R.C. 2953.71 through 2953.83, so that otherwise qualified

inmates would have the opportunity to take advantage of advances in technology that were

not available at the time of their trials. We stated that “Emerick’s case falls squarely under

that category.” Id. at ¶18.

       {¶ 11} We further held that the DNA testing would be outcome determinative,

reasoning:

       {¶ 12} “The state’s theory at trial was that the offenses which took place at Sloopy’s
                                                                                           6

on the day in question were committed by a single perpetrator.         There was no DNA

evidence that placed Emerick at the scene of the crime, and he maintained his innocence

throughout the trial. He contends that DNA testing of the fingernail scrapings of the

victims, the swabs of blood on the bathroom walls, and the genetic material on the murder

weapons will demonstrate the existence of a third party at the crime scene whose DNA does

not match Emerick’s or that of the two victims. Emerick argues that if the genetic material

does not match his DNA or that of the victims, then the isolated DNA must belong to

another donor. If the unidentified donor’s DNA is located on different evidentiary items,

that individual would be the actual murderer. Under this scenario, DNA analysis of the

requested evidentiary items would clearly be outcome determinative with respect to the

question of Emerick’s guilt. The existence of a third party who committed the murders and

robbery would exonerate Emerick.       Thus, pursuant to R.C. 2953.74(B)(2), Emerick is

entitled to Y-STR DNA analysis of the identified evidentiary items.” Id. at ¶25.

       {¶ 13} In October 2007, the prosecutor filed a report, pursuant to R.C. 2953.75,

which identified the following biological materials as still existing: (1) screwdriver bit

recovered from in front of a cigarette machine; (2) fingernail clippings; (3) stain from the

bathroom wall; (4) sample from the hammer; (5) sample from the jacket cuff; (6) sample

from the shoe; and (7) sample from the carpet. The screwdriver bit and fingernail clippings

were retained in the court’s property room. The other items were retained by the Miami

Valley Regional Crime Lab. The report did not mention biological materials other than

those ordered to be tested in Emerick II, and it is unclear whether the prosecutor looked for

any additional biological evidence, as required by R.C. 2953.75.
                                                                                              7

       {¶ 14} Pursuant to our judgment, the items addressed in our opinion (and itemized

by the prosecutor in the Prosecutor’s Report) were sent to an independent laboratory for

Y-STR DNA testing.        Emerick and Ferraro’s DNA was excluded from the fingernail

clippings, wall sample, and hammer handle; Knapke’s DNA could not be excluded as the

source of the blood for those samples. Emerick’s DNA was excluded from the hammer

whereas both Ferraro’s and Knapke’s DNA could not be excluded. Ferraro and Knapke

were excluded as the source of the blood on Emerick’s jacket; Emerick was not excluded as

the source of that blood. Emerick, Ferraro, and Knapke were excluded as sources of the

DNA on Emerick’s shoe. No male DNA was located on the screwdriver tip, and no human

DNA was found on the automobile carpet. Emerick has acknowledged that “[t]esting thus

far has failed to yield definitive evidence of Defendant’s innocence or guilt.” (Doc. #15.)

       {¶ 15} On March 13, 2009, Emerick filed a motion for further DNA testing and to

compel the prosecutor to provide a report listing all biological material collected in the case.

 He argued that “DNA testing of the remaining items would likely turn up additional profile

that would exculpate Emerick in this case.” In particular, Emerick sought testing of the

so-called “devil letter,” which was purportedly sent from the killer to the media shortly

after the murders/robbery, as well as paper towels found in both the men’s and ladies’

restrooms and a Budweiser beer bottle found inside the walk-in cooler in the middle room of

the bar. Emerick stated that there were more than 20 additional items that had never been

tested for DNA, such as (1) blood taken from the cooler in the middle room; (2) blood taken

from the men’s room sink; and (3) blood taken from the wall of the men’s room near the

toilet paper dispenser. Emerick also sought an order to require the State to inventory all
                                                                                             8

biological material, which the State allegedly had never done.

       {¶ 16} The State opposed Emerick’s motion for additional testing. The State argued

that Emerick had “not even attempted to demonstrate the reasonableness of testing every

single item of evidence, and [had] not specifically identified what items’ test results could

exculpate him.” (Emphasis in original.) (Doc. #19.) The State further argued that results

excluding Emerick as a contributor of biological material on the additional items would not

exonerate him.

       {¶ 17} A hearing on Emerick’s motion was held in July 2009, and the parties

submitted post-hearing memoranda. For the most part, the parties repeated their previously

asserted arguments. In his post-hearing memorandum, Emerick also asserted that the law of

the case doctrine governed this matter. He claimed that the appellate court (this court) had

previously concluded that DNA testing would be outcome determinative and that the trial

court was bound to follow that holding. The State responded that the law of the case

doctrine did not apply, because Emerick’s motion for further testing concerned different

biological evidence.

       {¶ 18} The trial court denied Emerick’s motion for further post-conviction DNA

testing. The court rejected Emerick’s contention that the law of the case doctrine applied.

The court noted that it had already followed the mandate in Emerick II, and that the appellate

opinion and judgment were confined to eight pieces of evidence.        The court further found

that Emerick had made the strategic decision not to test additional items at the time of trial,

when DNA testing was generally available. Further, the court found that additional testing

would not be outcome determinative. The trial court stated, in part:
                                                                                             9

       {¶ 19} “Defendant’s theory that DNA testing could produce an outcome

determinative result is problematic because it only can prove to be true IF the evidence at

trial is found not to be credible AND the DNA testing of the ‘devil letter’ reveals an

additional profile AND that profile happens to be found on any of the other evidence tested

AND all the other profiles found on all other evidence exclude Defendant. At best, finding

a new DNA profile would simply attack the credibility of evidence presented rather than

produce an outcome determinative result. The Court reminds Defendant that the murders

took place in the hours following two very busy nights at the bar. Finding DNA from

another person on paper towels or beer bottles in a bar, or even the walls of a public bar,

would not definitively exclude Defendant as the murderer. Further, with respect to the

‘devil letter,’ a DNA profile of someone other than Defendant could simply mean that

Defendant wrote the letter, but someone else handled it and sealed the envelope. As set

forth above, it was testified to at trial that the purpose of the ‘devil letter’ was to divert

attention from the true killer.   Thus, even another’s DNA on the letter would not be

‘outcome determinative.’” (Emphasis in original.)

       {¶ 20} As for Emerick’s request for a list of biological materials, the court found that

Emerick had previously been provided the list that he had requested under R.C. 2953.73.

The court noted that Emerick’s counsel had been given access to all evidence held in the

court’s property room, and trial counsel had been given access to a list of all available

evidence through the open discovery provisions of the Court Management Plan. Citing

State v. Buehler, 113 Ohio St.3d 114, 2007-Ohio-1246, the court held that the State need not

produce the list because DNA would not produce an outcome determinative result. The
                                                                                            10

court denied Emerick’s request for a list of all biological evidence collected at the crime

scene and from the victims.

         {¶ 21} Emerick appeals from the trial court’s judgment, raising three assignments of

error.

                                                   II

         {¶ 22} As recognized by the Supreme Court, “[s]ince 1998, DNA testing has

advanced so far that ‘a DNA profile may now be developed from items which were

previously unsuccessfully typed or potentially not attempted due to the compromised or

limited nature of the sample,’ according to one of the expert witnesses. The PCR DNA

testing used in this case in 1998 has been largely replaced by two newer technologies – short

tandem repeat (or STR) testing and Y-chromosome STR (or Y-STR) testing.” State v.

Prade, 126 Ohio St. 3d 27, 31, 2010-Ohio-1842, ¶20.

         {¶ 23} Prompted by advances in DNA testing, in 2003, the Ohio legislature enacted

Sub.S.B. 11, which established “a mechanism and procedures for the DNA testing of certain

inmates serving a prison term for a felony or under a sentence of death.” See former R.C.

2953.71 to 2953.83. This statutory scheme was amended in 2004 and 2006, and again in

2010. The case before us requires us to interpret the post-conviction DNA testing statutes,

as amended in 2006.

         {¶ 24} The trial court “has discretion on a case-by-case basis” to accept or reject an

eligible inmate’s application for DNA testing. R.C. 2953.74(A). We therefore review the

trial court’s denial of Emerick’s motion for further DNA testing for an abuse of discretion.

An abuse of discretion implies an arbitrary, unreasonable, unconscionable attitude on the
                                                                                          11

part of the trial court. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶130. Abuse

of discretion usually involves decisions that are unreasonable rather than arbitrary or

unconscionable. AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 601.       In this regard, unreasonable includes a discretionary

decision that is unsupported by the evidence. See, e.g., State v. Boles, 187 Ohio App.3d

345, 2010-Ohio-278, ¶18, quoting Black’s Law Dictionary (8th Ed.2004) 11.

                                                 III

       {¶ 25} As a threshold matter, the State asserts that Emerick’s request for further

DNA testing is barred by res judicata, because he could have sought testing of the additional

items in his first application for DNA testing. The State notes that the Eighth District in

State v. Ayers, 185 Ohio App.3d 168, 2009-Ohio-6096, found that res judicata does not

apply in the context of post-conviction DNA testing, but the State asserts that Ayers is

distinguishable from the facts before us.

       {¶ 26} “The doctrine of res judicata encompasses the two related concepts of claim

preclusion, also known as *** estoppel by judgment, and issue preclusion, also known as

collateral estoppel.” Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 381. “Under the

doctrine of res judicata, ‘[a] valid, final judgment rendered upon the merits bars all

subsequent actions based upon any claim arising out of the transaction or occurrence that

was the subject matter of the previous action.’” Kelm v. Kelm, 92 Ohio St.3d 223, 227,

2001-Ohio-168, quoting Grava, supra, at syllabus. Furthermore, “[r]es judicata operates to

bar litigation of ‘all claims which were or might have been litigated in a first lawsuit.’”

Grava, 73 Ohio St.3d at 382, quoting Natl. Amusements, Inc. v. Springdale (1990), 53 Ohio
                                                                                             12

St.3d 60, 62 (emphasis omitted).

       {¶ 27} In Ayers, the defendant was convicted of aggravated murder, aggravated

robbery, and aggravated burglary of a woman who lived in his apartment building. Prior to

trial, investigators determined that a pubic hair found in the victim’s mouth did not belong to

Ayers and that no biological material was found under the victim’s fingernails. Four years

after his conviction, Ayers sought DNA testing of the pubic hair, blood, and skin from

underneath the victim’s fingernail. The trial court denied the application, stating that it had

already been determined that the blood and pubic hair could not be linked to Ayers and that

no biological material was found under the victim’s fingernails. Ayers subsequently filed a

second application for DNA testing, seeking the testing of the same evidence. Ayers noted

the advances in DNA testing and emphasized that the statutory definition of “outcome

determinative” had changed since his first application.          The trial court denied the

application as barred by res judicata and because the results would not be outcome

determinative. Ayers appealed the trial court’s decision, arguing, in part, that res judicata

did not apply because the denial of his first application was based on a different, less lenient

standard for “outcome determinative.”

       {¶ 28} The Eighth District reversed the trial court’s ruling. It held that, “[b]ecause

Ayers’s first application was considered and rejected under the earlier, more restrictive

statute, we find that principles of res judicata are inapplicable to preclude consideration of

this petition.” Ayers at ¶26. The Court emphasized that the “ultimate objective” of our

system of criminal law is that “the guilty be convicted and the innocent go free.” Id. at ¶24,

quoting Herring v. New York (1975), 422 U.S. 853, 862, 95 S.Ct. 2550, 45 L.Ed.2d 593.
                                                                                          13

The Eighth District found that the Ohio legislature had “plainly embraced this notion” by

lowering the outcome determinative standard. The appellate court thus concluded:

       {¶ 29} “Nothing that we have said is meant to suggest that convicted defendants are

entitled to additional DNA testing based on nothing more than the passage of time and the

assumption that science has developed more refined testing methods. We have made it

clear that the courts must consider such motions on a case-by-case basis and those motions

must make a threshold showing that DNA testing could be outcome determinative. If that

showing is made, res judicata will not bar testing even though an earlier application for DNA

testing was denied. “

       {¶ 30} We likewise reject the State’s contention that res judicata applies. As stated

in Ayers:

       {¶ 31} “If DNA testing has the proven ability to ‘exonerate[ ] wrongly convicted

people,’ we can perceive no viable argument that matters of judicial economy should

supersede the law’s never-ending quest to ensure that no innocent person be convicted. The

refinement of DNA testing has shown that law and science are intersecting with increasing

regularity. When scientific advances give the courts the tools to ensure that the innocent

can go free, those advances in science will necessarily dictate changes in the law.” Id. at

¶24 (citation omitted).

       {¶ 32} Significantly, R.C. 2953.74 permits successive applications for DNA testing

by addressing circumstances when DNA testing may be ordered, even though the same

biological material has already been tested.     In addition to changing the definition of

“outcome determinative,” the 2006 changes to the post-conviction DNA testing statute
                                                                                           14

increase the number of eligible applicants, facilitate the granting of applications for DNA

testing, and allow unidentified DNA to be entered in the Combined DNA Index System

(CODIS) for matching with known felons. These changes support a conclusion that this

court should permit successive applications for DNA testing, even when the biological

materials addressed in the successive application could have been raised in a prior

application, provided that all the statutory criteria are met.

        {¶ 33} Emerick’s request for further DNA testing is not barred by res judicata.

                                                    IV

        {¶ 34} Emerick’s first assignment of error states:

        {¶ 35} “The Trial Court Erred When It Found that Ohio Rev. Code 2953.74(B) Was

A Bar to DNA Testing, in Direct Contradiction of This Court’s Previous Ruling in State v.

Emerick, 170 Ohio App.3d 647, 2007-Ohio-1334, appeal denied, 114 Ohio St.3d 1511,

2007-Ohio-4285.”

        {¶ 36} In his first assignment of error, Emerick asserts that the trial court erred in

concluding that R.C. 2953.74(B) was a bar to additional post-conviction DNA testing,

because DNA testing was generally available at the time of Emerick’s trial. Emerick

contends that the trial court’s finding was contrary to our conclusions in Emerick II.

        {¶ 37} The State agrees with Emerick that the trial court’s denial of further testing

based on the fact that DNA testing was generally accepted, admissible, and available at the

time of Emerick’s trial “goes against this Court’s decision in Emerick’s appeal of the trial

court’s denial of his first application for post-conviction DNA testing.” Nevertheless, the

State asserts that the trial court correctly concluded that additional DNA testing was
                                                                                                        15

precluded under R.C. 2953.74(B)(1).             It asserts that res judicata barred Emerick’s

successive application for DNA testing where Emerick was aware of the evidence and could

have sought its testing in his prior application; we have already rejected, supra, the State’s

res judicata argument.

       {¶ 38} R.C. 2953.74(B)(1), as it existed when Emerick’s motion for further DNA

testing was filed in 2009,1 provided:

       {¶ 39} “(B) If an eligible inmate submits an application for DNA testing under

section 2953.73 of the Revised Code, the court may accept the application only if one of the

following applies:

       {¶ 40} “(1) The inmate did not have a DNA test taken at the trial stage in the case in

which the inmate was convicted of the offense for which the inmate is an eligible inmate and

is requesting the DNA testing regarding the same biological evidence that the inmate seeks

to have tested, the inmate shows that DNA exclusion when analyzed in the context of and

upon consideration of all available admissible evidence related to the subject inmate’s case

as described in division (D) of this section would have been outcome determinative at that

trial stage in that case, and, at the time of the trial stage in that case, DNA testing was not

generally accepted, the results of DNA testing were not generally admissible in evidence, or

DNA testing was not yet available.”

       {¶ 41} As stated above, the trial court held that no criterion was satisfied, finding

that “DNA testing was generally available, accepted, and admissible” as demonstrated by

the fact that some DNA testing was conducted in his case and entered into evidence at trial.


          1
           The DNA testing statutes, including R.C. 2953.74, were revised in Sub.S.B. 77, effective July 6,
                                                                                           16

The court believed that Emerick was seeking “to reverse the apparent strategic decision he

made at the time of his trial not to have DNA testing performed on the items now requested

for testing.”

        {¶ 42} The trial court’s decision on this issue is directly contrary to Emerick II. In

that case, we stated:

        {¶ 43} “Emerick contends that the available technology in DNA testing in 1996 was

insufficient to reach the definitive results now possible using Y-Chromosome Short Tandem

Repeat (‘Y-STR’) DNA Analysis. It is undisputed that Y-STR analysis was not available at

the time of Emerick's trial.         Moreover, it was partially the development of Y-STR

technology that prompted the General Assembly to enact R.C. 2953.71 through 2953.83 in

order to allow otherwise qualified inmates the opportunity to take advantage of advances in

technology that were not available at the time of their trials. Emerick’s case falls squarely

under that category. While it is true that DNA testing was an accepted practice at the time

of his trial, the technology has advanced to such a degree that Emerick is entitled to

additional testing using the new technique.             Because Y-STR DNA analysis was not

available at the time of his prosecution, the biological materials Emerick seeks to be tested

are eligible for analysis pursuant to R.C. 2953.74(B)(1).” Emerick II at ¶18.

        {¶ 44} Although the items that Emerick seeks to test in this appeal differ from those

addressed in Emerick II, our conclusions regarding the availability of DNA testing at the

time of Emerick’s trial have not changed.

        {¶ 45} Emerick’s first assignment of error is sustained.


   2010. The 2010 version of R.C. 2953.74(B)(1) replaces “inmate” with “offender.”
                                                                                           17

                                                 V

       {¶ 46} Emerick’s second assignment of error states:

       {¶ 47} “The Trial Court Erred in Focusing on the Likelihood that DNA Testing

Would Produce Outcome Determinative Results, Rather than Focusing on the Outcome

Determinative Standard.”

       {¶ 48} In his second assignment of error, Emerick claims that the trial court

misapplied the outcome determinative standard.          He emphasizes that the outcome

determinative standard had changed since the trial court’s decision on his first application

for DNA testing.

       {¶ 49} In 2003, “outcome determinative” was defined in the post-conviction DNA

testing statutes to mean: “[H]ad the results of DNA testing been presented at the trial of the

subject inmate requesting DNA testing and been found relevant and admissible with respect

to the felony offense for which the inmate is an eligible inmate and is requesting the DNA

testing * * *, no reasonable factfinder would have found the inmate guilty of that offense

***.” (Emphasis added.) Former R.C. 2953.71(L). This definition applied when Emerick

first sought post-conviction DNA testing and when we rendered Emerick II.

       {¶ 50} With 2006 S.B. 262, effective July 11, 2006, the Ohio legislature modified

the definition of “outcome determinative.” When Emerick filed his second application for

DNA testing, R.C. 2953.71 provided that “outcome determinative” means that “had the

results of DNA testing of the subject inmate been presented at the trial of the subject inmate

requesting DNA testing and been found relevant and admissible with respect to the felony

offense for which the inmate is an eligible inmate and is requesting the DNA testing or for
                                                                                           18

which the inmate is requesting the DNA testing under section 2953.82 of the Revised Code,

and had those results been analyzed in the context of and upon consideration of all available

admissible evidence related to the inmate’s case as described in division (D) of section

2953.74 of the Revised Code, there is a strong probability that no reasonable factfinder

would have found the inmate guilty of that offense ***.”           (Emphasis added.)     R.C.

2953.71(L).

       {¶ 51} Under the 2006 changes, a defendant can now satisfy the “outcome

determinative” test by showing that a “strong probability” exists that no reasonable

factfinder would have found him guilty; he need no longer establish that “no reasonable

factfinder would have found the inmate guilty of that offense,” as required by the prior

version of R.C. 2953.71(L).      Thus, the 2006 changes establish “a lower standard for

determining whether a reasonable fact-finder would have found guilt.” Ayers at ¶34. The

2006 version of the statute also requires the DNA test results to be considered in the context

of all the available, admissible evidence, thus making clear that “an exclusion result is not

the only fact to consider when deciding whether DNA testing will be outcome

determinative.” Id.

       {¶ 52} Emerick argues that we previously found that the outcome determinative test

had been satisfied (under the more strict 2003 standard) when “an unidentified donor’s DNA

is located on different evidentiary items.” Emerick II at ¶25. Emerick thus asserts that we

must reach the same result under the current outcome determinative test.           The State

responds that, even if Emerick were excluded as the source of DNA on the items he seeks to

test, the outcome of Emerick’s trial would not have been different when viewed in light of
                                                                                                             19

the totality of the evidence offered at trial. The State further responds that several items

sought to be tested are not “biological material” as contemplated by R.C. 2953.74(C)(1).

        {¶ 53} We find no meaningful distinction between the items tested in Emerick II and

Emerick’s current request to test various additional blood samples from the men’s bathroom,

paper towels found near one of the victims, paper towels found on the countertop and sink of

the ladies’ room, and the devil letter. The items addressed in Emerick II were directly

related to the commission of the murders and robbery, and were not items generally found at

the bar. (As detailed above, Emerick II concerned fingernail scrapings of the victims, swabs

of blood on the bathroom walls, and genetic material on the murder weapons, which were

gathered at the crime scene.) An unidentified person’s DNA on any of these categories

would have linked an unknown person to the crimes.                        Likewise, the presence of an

unidentified donor’s DNA in the newly-requested blood samples and/or paper towels taken

from the scene and on the envelope of the devil letter, which was allegedly written by the

perpetrator, would create a strong probability that no reasonable jury would have found him

guilty.2 See, also, State v. Reynolds, 186 Ohio App.3d 1, 2009-Ohio-5532, an aggravated

robbery and felonious assault case, in which we held that the absence of the defendant’s

DNA and the simultaneous presence of a known felon’s DNA from CODIS would create a

strong probability of a different outcome. Id. at ¶21.

        {¶ 54} In reaching this conclusion, we recognize the substantial amount of evidence

            2
            We are cognizant that the robbery and murders occurred at a public drinking establishment where
   numerous people might have touched the paper towels, and that the mere presence of paper towels in the
   restrooms is not significant, absent some indication that they were related to the offenses. In this case, the
   evidence showed that the bar had been substantially cleaned and that the perpetrator had entered both
   bathrooms. We emphasize that unknown DNA on the paper towels would be significant only if the same
   unknown DNA were found on other evidence related to the crime.
                                                                                              20

offered by the State against Emerick. However, if DNA testing revealed that an unknown

person’s DNA were on the devil letter and at the crime scene, the State’s theory of the case

would be undermined. The State presented no evidence that the crimes at Sloopy’s were

committed by more than one person. To the contrary, the State argued at trial that the

contents of the devil letter, which referred to several perpetrators, was “[t]rying to blame it

[the crime] on other individuals.” In addition, defense counsel vigorously cross-examined

each of the State’s witnesses and presented evidence on Emerick’s behalf; the credibility of

the State’s evidence did not go unchallenged. In short, when considering all the available,

admissible evidence, the absence of the defendant’s DNA and the simultaneous presence of

another’s DNA on the devil letter and at the crime scene would create a strong probability of

a different outcome.

       {¶ 55} The State argues that Emerick is not entitled to testing of the devil letter or its

envelope, because they were not collected from “the crime scene or the victim,” as required

by R.C. 2953.74(C)(1). It is undisputed that the devil letter was not collected from Sloopy’s

or from the victims. Indeed, the letter was sent to the media several days after the offenses

were committed. Nevertheless, we view the sending of the letter as an extension of the

crime by the perpetrator, as apparently did the State since it offered the envelope and letter

as evidence regarding the crime at trial and presented the testimony of a handwriting expert

to tie Emerick to that correspondence. We conclude that the letter and its envelope are

appropriate for testing under the post-conviction DNA testing statutes.

       {¶ 56} We likewise reject the State’s assertion that the devil letter and other

evidence do not fall under the post-conviction DNA testing statute because they are not
                                                                                                            21

“biological material.” Under R.C. 2953.71(A), an application for DNA testing means “a

request through postconviction relief for the state to do DNA testing on biological material

***.” Biological material is defined as “any product of a human body containing DNA.”

R.C. 2953.71(B).

        {¶ 57} It is undisputable that biological materials are commonly located on other

items, such as clothing, bedding, or carpet. Those other items are routinely collected by the

police so that suspected biological materials on those items may be tested.                          And, as

discussed by Cindy Duerr in her testimony at Emerick’s trial, forensic scientists first

determine whether the collected items do, in fact, contain biological materials. We see no

reason why the devil letter and paper towels, which may contain biological materials, should

be treated any differently than other items with possible biological materials that were

collected by the police.

        {¶ 58} We do not find Emerick II to be dispositive of the outcome determinative

issue on other items now requested to be tested. In particular, Emerick seeks to test a beer

bottle found near Knapke’s body. The beer bottle was partially full and had Knapke’s

fingerprint on it; a toxicology test of Knapke’s blood showed that he had drunk a small

amount of alcohol. Emerick has offered no explanation how the beer bottle is related to the

offense, other than speculation that the perpetrator may have touched it. The trial court did

not err in denying Emerick’s request to have DNA testing performed on the beer bottle.3


            3
              At the July 9, 2010 hearing, counsel for Emerick informed the trial court that the Innocence
   Project would pay for any additional DNA testing that was permitted by the court. R.C. 2953.71
   specifically states that an “application” under the postconviction DNA statute means a request “for the state
   to do DNA testing on biological material.” A request to permit the defendant to conduct post-conviction
   DNA testing funded by a private source would not fall under R.C. 2953.71.
            Such a request is permitted by R.C. 2953.84, which was enacted in Senate Bill 262. That statute
                                                                                                              22

        {¶ 59} Judge Learned Hand once famously observed that “[o]ur procedure has been

always haunted by the ghost of the innocent man.” United States v. Garsson (S.D.N.Y

1923), 291 F. 646, 649.            But he then concluded that “[i]t is an unreal dream.”                      Id.

Unfortunately, more recent cases – particularly those involving DNA exoneration even with

eyewitness testimony – have brought this ghost back to the justice system’s consciousness.

A jury found Emerick guilty, and we appreciate the frustration and even anguish that the

apparent lack of finality engenders in law enforcement and, especially, the victims’ families.

 However, we believe the legislature and the courts, while perhaps in most cases not able to

be 100% certain of guilt or innocence, have established procedures to be followed regarding

biological evidence to approach the “ultimate objective” that “the guilty be convicted and the

innocent go free.” Herring, supra.

        {¶ 60} The second assignment of error is sustained in part and overruled in part.

                                                           VI

        {¶ 61} Emerick’s third assignment of error states:

        {¶ 62} “The Trial Court erred in Ruling That the State is Not Required to Provide a

Report on All Biological Materials in Defendant’s Case, in Direct Opposition to the Clear


   provides: “The provisions of sections 2953.71 to 2953.82 of the Revised Code by which an inmate may
   obtain postconviction DNA testing are not the exclusive means by which an inmate may obtain
   postconviction DNA testing, and the provisions of those sections do not limit or affect any other means by
   which an inmate may obtain postconviction DNA testing.”
              Provided that a sufficient parent sample is available and the chain of custody is maintained, we see
   no reason why a trial court would decline a request for post-conviction DNA testing by the defendant when
   conducted at the defendant’s own or another private entity’s expense. We emphasize that any request for
   DNA testing outside of the provisions of R.C. 2953.71 to 2953.82 would not require the State to provide a
   list of all existing biological materials, as required by those sections.
              Although the Innocence Project expressed its intent to pay for additional DNA testing, Emerick
   has consistently asserted that he is entitled to DNA testing under the statutory criteria, not R.C. 2953.84.
   The trial court did not err in focusing on the statutory requirements for additional DNA testing. See State
   v. Constant, Lake App. No. 2008-L-100, 2009-Ohio-3936.
                                                                                             23

Language of O.R.C. 2953.75.”

       {¶ 63} Under R.C. 2953.75, the trial court must require the prosecutor “to use

reasonable diligence to determine whether biological material was collected from the crime

scene or victim of the offense *** and whether the parent sample of that biological material

still exists at that point in time.” In making these determinations, the prosecuting attorney

must “rely upon all relevant sources,” including, among others, all prosecuting authorities in

the case, all law enforcement authorities involved in the investigation, and all crime

laboratories involved at the any time with the biological materials in question.           R.C.

2953.75(A).     Thereafter, the prosecutor must prepare a report with his or her

determinations. R.C. 2953.75(B). A copy of the report must be filed with the court and

provided to the defendant and the attorney general. Id.

       {¶ 64} The trial court is not required to first order the prosecuting attorney to prepare

and file the DNA-evidence report upon the filing of an application for DNA testing by an

eligible inmate. State v. Buehler, 113 Ohio St.3d 114, 2007-Ohio-1246. Rather, the trial

court may, in its discretion based upon the facts and circumstances presented in the case,

first determine whether the eligible inmate has demonstrated that the DNA testing would be

outcome-determinative. Id.

       {¶ 65} In this case, we have concluded that DNA test results implicating a third party

as the source of blood in the bathrooms, biological material on paper towels from the

bathrooms and biological material on the devil letter and its envelope would be

outcome-determinative. Accordingly, the trial court erred in failing to order the prosecutor

to prepare a DNA-evidence report, as required by R.C. 2953.75.
                                                                                   24

       {¶ 66} The third assignment of error is sustained.

                                                VII

       {¶ 67} The trial court judgment will be affirmed in part, reversed in part, and

remanded for further proceedings.

                                        ..........

GRADY, P.J. and FAIN, J., concur.

Copies mailed to:

Andrew T. French
Mark Godsey
Hon. Barbara P. Gorman
