[Cite as State v. Biggs, 2013-Ohio-3333.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. Patricia A. Delaney, J.
-vs-                                         :
                                             :
JAY LEWIS BIGGS                              :       Case No. 2013CA00009
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2008CR0653



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    July 29, 2013



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

PAUL L. SCARSELLA                                    CARRIE WOOD
150 East Gay Street, 16th Floor                      MARK GODSEY
Columbus, OH 43215                                   Ohio Innocence Project
                                                     P.O. Box 210040
                                                     Cincinnati, OH 45221-0040
CHRYSSA HARTNETT
110 Central Plaza South, Suite 510                   ADAM VANHO
Canton, OH 44702-1413                                137 South Main Street, Suite 201
                                                     Akron, OH 44308
Stark County, Case No. 2013CA00009                                                    2

Farmer, J.

      {¶1}   On May 28, 2008, the Stark County Grand Jury indicted appellant, Jay

Lewis Biggs, on two counts of aggravated murder with death penalty specifications in

violation of R.C. 2903.01, two counts of murder in violation of R.C. 2903.02, one count

of rape in violation of R.C. 2907.02, and one count of endangering children in violation

of R.C. 2919.22. Said charges arose from the death of appellant's four month old

daughter.

      {¶2}   A jury trial commenced on October 1, 2008. The jury found appellant

guilty as charged, and recommended that appellant serve a term of life imprisonment

without the possibility of parole. By judgment entry filed December 5, 2008, the trial

court sentenced appellant to life in prison without parole. Appellant's conviction was

affirmed on appeal. State v. Biggs, 5th Dist. Stark No. 2008CA00285, 2009-Ohio-6885.

The Supreme Court of Ohio declined to hear an appeal. State v. Biggs, 125 Ohio St.3d

1438, 2010-Ohio-2212.

      {¶3}   On November 7, 2012, the Ohio Innocence Project filed a motion to

release biological samples in the case. The Innocence Project sought new copies of

the tissue slides in order to evaluate appellant's case for any possible postconviction

proceedings. By judgment entry filed December 12, 2012, the trial court denied the

motion.

      {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:
Stark County, Case No. 2013CA00009                                                       3


                                              I

       {¶5}    "THE TRIAL COURT ERRED WHEN IT CREATED A CIRCULAR AND

SELF-DEFEATING LEGAL STANDARD FOR OBTAINING TISSUE SLIDES FROM AN

AUTOPSY SUCH THAT NO APPLICATION FOR TISSUE SLIDES FROM AN

AUTOPSY WOULD EVER BE GRANTED IN VIOLATION OF BOTH THE U.S. AND

OHIO CONSTITUTIONS."

                                             II

       {¶6}    "THE TRIAL COURT ERRED IN FAILING TO RELEASE RE-CUTS OF

THE TISSUE SLIDES TO DEFENDANT'S FOUR LISTED EXPERTS AS REQUIRED

BY BOTH OHIO LAW AND THE U.S. AND OHIO CONSTITUTIONS."

                                             III

       {¶7}    "THE TRIAL COURT ERRED WHEN IT ANALYZED DEFENDANT'S

REQUEST FOR TISSUE SLIDES AS BEING BASED SOLELY ON ADVANCEMENTS

IN S.I.D.S."

                                             IV

       {¶8}    "THE TRIAL COURT ERRED IN EVALUATING BIGGS'S MOTION FOR

RELEASE AS A MOTION FOR POST-CONVICTION RELIEF."

                                            I, II

       {¶9}    Appellant claims the trial court erred in denying his motion to release

biological samples in his case as the trial court's decision created a circular and self-

defeating standard, the samples had previously been provided to his trial counsel but

were lost by his expert, due process requires such release, and in the absence of a

statute, the trial court had the discretion to release the tissue slides. We disagree.
Stark County, Case No. 2013CA00009                                                           4


       {¶10} The Ohio Innocence Project filed the motion to release biological samples

on behalf of appellant in order to determine if any postconviction proceedings were

warranted. The Innocence Project requested tissue slides from the autopsy performed

on the infant victim because three experts it contacted to conduct a review needed to

examine the original slides. Each expert opined that in order to review the case "a

new," they must examine the tissue slides. See, Exhibits A, B, and C, attached to the

Motion to Release Biological Samples filed November 7, 2012.

       {¶11} Preliminarily, it is necessary to point out that time has long since passed

for appellant to file an application for postconviction relief or a motion for new trial in the

ordinary course of criminal procedure.       There is no motion for postconviction relief

currently pending or contemplated by the Innocence Project at this time. There is no

specific statutory right or privilege invoked by appellant's motion or any indication of a

specific criminal rule or procedure that is applicable to this case. The jurisdiction of the

trial court appears not to have been invoked by specific statute or rule.

       {¶12} This matter presents an issue of first impression to this court.              We

conclude that given the issue of the trial court's jurisdiction and the lack of any statutory

authority relative to this request, our standard of review of the trial court's decision is de

novo "as a matter of law."

       {¶13} Because of the lack of statutory authority or specific rule, we are forced by

analogy to review this motion by the standards set forth in R.C. 2953.73, 2953.74, and

2953.75 relative to DNA evidence.

       {¶14} In State v. Prade, 126 Ohio St.3d 27, 2010-Ohio-1842, the Supreme Court

of Ohio set forth a two-stage analysis for postconviction relief under R.C. 2953.74.
Stark County, Case No. 2013CA00009                                                      5


Former Justice Stratton found in a DNA testing application pursuant to R.C. 2953.73,

the movant must first prove "new DNA testing methods are now able to provide new

information that was not able to be detected at the time of defendant's trial." Prade at ¶

23. In addition, the movant must show that the new testing would have been outcome-

determinative at the original trial (¶ 25):



              R.C. 2953.71 provides 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 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).



       {¶15} We will analyze appellant's request in this case under this two-stage

standard. First, is the testing asked of the experts an innovative, advanced or new

scientific test or form of analysis unavailable at the time of appellant's trial?
Stark County, Case No. 2013CA00009                                                       6


       {¶16} The three experts contacted by the Innocence Project, George R. Nichols,

II, M.D., Marvin Miller, M.D., and Mark J. Shuman, M.D., M.S., all explained they

needed to exam the tissue slides in order to evaluate the case, but did not even infer

that the science now available was new, innovative or more advanced than the science

utilized by appellant's expert at trial, Werner Spitz, M.D. See, Exhibits A, B, and C,

attached to the Motion to Release Biological Samples filed November 7, 2012. In fact,

in an e-mail dated February 3, 2012, Dr. Shuman already concluded without the slides

that his opinion differs from the opinions of the state's expert witnesses at trial, P.S.S.

Murthy, M.D. and Anthony Bertin, D.O.        See, Exhibit D, attached to the Motion to

Release Biological Samples filed November 7, 2012.

       {¶17} Appellant argues Dr. Shuman would be the first pediatric forensic

specialist to offer an opinion in the case as none of the state's experts or appellant's

own expert were pediatric forensic specialists. With all due respect to the better choice

of expert, this argument has long gone "left the station" as a viable reason for

appellant's motion.

       {¶18} Appellant also offers that "advancements" have been made in the study of

infant deaths since the time of appellant's trial. Appellant supported this statement in

his motion at footnote no. 4 as follows:



              For example, child medical specialists now have a greater

       understanding about accidental asphyxiation resulting from unsafe

       sleeping conditions, these deaths having commonly been labeled as

       sudden infant death syndrome ("SIDS"). See State v. Hansen, 2008 Minn.
Stark County, Case No. 2013CA00009                                                     7

      App. Unpub. LEXIS 292 (Minn. App. 2008), review denied State v.

      Hansen, 2008 Minn. LEXIS 329 (2008), motion for new trial granted

      "Findings of Fact, Conclusions of Law and Order," No. 23-KX-04-1222,

      District Court of Douglas County (July 13, 2011) (attached as Defendant's

      Exhibit F). In Hansen, the defendant was convicted of second-degree

      murder for the death of his infant daughter.        The autopsy revealed

      evidence of a skull fracture, which was presumed to have been caused by

      intentional blunt force trauma.   Subsequent review by medical experts

      revealed that the skull trauma had been caused by the infant's car carrier

      falling onto the ground with the infant inside, and that this trauma was not

      fatal. Instead, the experts believe that the infant had died as the result of

      "positional asphyxiation," i.e., accidental asphyxiation due to unsafe sleep

      conditions, as she had been sleeping face-down on a futon with her father,

      surrounded by loose pillows.        Unexplained infant deaths are often

      classified as sudden infant death syndrome ("SIDS"), but advancements in

      knowledge about SIDS and positional asphyxia led the district court to

      grant the defendant's motion for new trial on the basis of this newly-

      discovered scientific evidence. See, id.



      {¶19} We find this reference does not rise to the level of new advancements in

the determination of infant deaths as the Hansen case was fact specific.

      {¶20} Based upon our review, we find no evidentiary quality averments

necessary to fulfill the first prong of Prade. There is no evidence of any new definitive
Stark County, Case No. 2013CA00009                                                       8


tests. We therefore conclude appellant has failed to meet his burden required for the

resubmission of the tissue slides to his "newly discovered" experts.

         {¶21} By inference, appellant argues he was afforded the tissue slides in initial

discovery and therefore what harm is there in permitting him to have them again.

Presumably, if Dr. Spitz had not lost/destroyed the slides, appellant's new experts could

render their reports without judicial intervention. Basically, the argument is "no harm, no

foul."

         {¶22} To this position, we find Justice O'Donnell comments in his dissent in

Prade at ¶ 41-43 to be on point:



               This construction of the statute is supported by the narrow remedy

         afforded inmates in seeking postconviction relief. As this court explained

         in State v. Steffen (1994), 70 Ohio St.3d 399, 410, 639 N.E.2d 67,

         postconviction review is not a constitutional right, and it provides only "a

         narrow remedy." Because of the significant societal interest in the finality

         of judgments, the postconviction-relief statute provides only a limited

         opportunity to collaterally attack a conviction, an opportunity not intended

         to allow inmates to relitigate issues previously resolved at trial. See id.

         (explaining that res judicata applies to actions for postconviction relief);

         State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶

         47 (noting that courts construe statutes establishing postconviction relief

         narrowly to uphold the societal interest in final judgments). As we stated in

         State v. Szefcyk (1996), 77 Ohio St.3d 93, 671 N.E.2d 233: " ' "[P]ublic
Stark County, Case No. 2013CA00009                                                     9


     policy dictates that there be an end of litigation; that those who have

     contested an issue shall be bound by the result of the contest, and that

     matters once tried shall be considered forever settled as between the

     parties." ' " Id. at 95, 671 N.E.2d 233, quoting Federated Dept. Stores,

     Inc. v. Moitie (1981), 452 U.S. 394, 401, 101 S.Ct. 2424, 69 L.Ed.2d 103,

     quoting Baldwin v. Iowa State Traveling Men's Assn. (1931), 283 U.S.

     522, 525, 51 S.Ct. 517, 75 L.Ed. 1244.

            This court should treat an inmate's postconviction application for

     DNA testing no differently. Notably, in District Attorney's Office for Third

     Judicial Dist. v. Osborne (2009), ––– U.S. ––––, ––––, 129 S.Ct. 2308,

     2323, 174 L.Ed.2d 38, the Supreme Court of the United States declined to

     recognize a freestanding constitutional right to postconviction DNA testing.

     The court explained that any due process right of access to DNA evidence

     "must be analyzed in light of the fact that [the inmate] has already been

     found guilty at a fair trial, and has only a limited interest in postconviction

     relief," id. at 2320, and it recognized that resolving the dilemma of "how to

     harness DNA's power to prove innocence without unnecessarily

     overthrowing the established system of criminal justice" is a "task [that]

     belongs primarily to the legislature," id. at 2316.

            In enacting R.C. 2953.71 et seq., the General Assembly took up

     this task, considered the public-policy questions raised by postconviction

     DNA testing, measured an inmate's interest in proving actual innocence

     against the societal interest in the finality of judgments, and established a
Stark County, Case No. 2013CA00009                                                     10


      limited remedy affording postconviction DNA testing in cases where

      biological evidence has not been the subject of a prior definitive test. This

      court should not expand that remedy beyond the statute's express terms.

      The legislature could have provided for courts to consider advances in

      testing technology in determining whether prior tests were definitive, yet it

      chose not to do so. Instead, by barring applications for retesting when

      there has been a prior definitive test, the legislature signaled its intent to

      uphold the finality of convictions.



      {¶23} Upon review, we find the trial court did not err in denying appellant's

motion to release biological samples.

      {¶24} Assignments of Error I and II are denied.

                                            III, IV

      {¶25} Appellant claims the trial court erred in determining his request was based

solely on advancements in diagnosing S.I.D.S., and erred in evaluating the motion as a

motion for postconviction relief. We disagree.

      {¶26} Because we are addressing the issues herein de novo as a matter of law,

we find it is unnecessary to address these assignments as, noted above, it is hard to

determine what jurisdictional avenue is open to appellant, if any. Further, appellant's

motion contains a statement which was not supported by any affidavit or quality

evidence that there have been advancements in the study of infant deaths, including the

diagnosis of S.I.D.S., since appellant's trial.       See, Appellant's Motion to Release

Biological Samples filed November 7, 2012 at page 3.
Stark County, Case No. 2013CA00009                                          11


      {¶27} Assignments of Error III and IV are denied.

      {¶28} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Delaney, J. concur.




                                          _______________________________
                                          Hon. Sheila G. Farmer




                                          _______________________________
                                          Hon. William B. Hoffman




                                          _______________________________
                                          Hon. Patricia A. Delaney


SGF/sg 0709
[Cite as State v. Biggs, 2013-Ohio-3333.]


                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
JAY LEWIS BIGGS                                :
                                               :
        Defendant-Appellant                    :       CASE NO. 2013CA00009




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to

appellant.




                                               _______________________________
                                               Hon. Sheila G. Farmer




                                               _______________________________
                                               Hon. William B. Hoffman




                                               _______________________________
                                               Hon. Patricia A. Delaney
