[Cite as State v Jones, 2013-Ohio-2986.]


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

STATE OF OHIO                                       C.A. No.     26568

        Appellant

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
DEWEY JONES, III                                    COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellee                                    CASE No.   CR 1994 06 1409 C

                                 DECISION AND JOURNAL ENTRY

Dated: July 10, 2013



        MOORE, Presiding Judge.

        {¶1}     The State of Ohio appeals the order of the Summit County Court of Common

Pleas that granted Dewey Amos Jones’ motion for a new trial. This Court affirms.

                                               I.

        {¶2}     On February 13, 1993, someone entered the home of seventy-one-year-old Neal

Rankin and, during the course of a robbery, shot him twice in the head at close range. Police

found no signs of forced entry, so the investigation focused on Mr. Rankin’s circle of younger

acquaintances who often received money from him. Mr. Jones and his wife were known to

frequent Mr. Rankin’s home, and suspicion soon turned in their direction. Along with a third

person, Gary Rusu, the Joneses were indicted on charges of aggravated murder. Soon, the

charges against Mrs. Jones and Mr. Rusu were dismissed, leaving Mr. Jones as the only

defendant.
                                                2


       {¶3}    At trial, one of Mr. Rankin’s neighbors testified that he had seen someone leaving

Mr. Rankin’s house on the evening of the murder and that he had identified Mr. Jones from a

photographic array some months after the crime. The same witness, however, also identified two

other people from photo arrays at different times. A jailhouse informant testified that Mr. Jones

confessed the crime to him, but no physical evidence linked Mr. Jones to the murder. In 1995, a

jury found him guilty of aggravated murder, and the trial court sentenced him to life in prison.

Mr. Jones appealed, and this Court affirmed his conviction. State v. Jones, 9th Dist. Summit No.

17213, 1996 WL 37725 (Jan. 31, 2006).

       {¶4}    In 2008, Mr. Jones moved the trial court for DNA testing under R.C. 2953.73. On

April 29, 2010, the trial court granted the motion, concluding that although DNA testing was not

possible when he was tried given the quality of the samples, advances in technology by 2010

permitted DNA profiles to be obtained from “very small, degraded, or compromised samples.”

The trial court observed that “depending on whether the results of the DNA evidence yield the

existence of a different perpetrator at the scene, in particular one of the individuals initially

picked out of photo arrays by witnesses, there is a strong probability that a reasonable factfinder

could find that [Mr. Jones] was not the killer of Neal Rankin.” Once the DNA test results were

obtained excluding him as a contributor, Mr. Jones moved for a new trial. The trial court granted

his motion on July 9, 2012, noting that the test results “call[ed] into question the State’s entire

theory of the case” and “undermine[d] the testimony of the State’s witness, Willie Caton”

because “[t]he DNA does not support, and in some instances, works directly against, the

testimony of Mr. Caton.”

       {¶5}    The State moved for leave to appeal the decision. This Court allowed the appeal,

and the State has presented one assignment of error.
                                                  3


                                                 II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED BY GRANTING DEWEY JONES, III A NEW
       TRIAL PURSUANT TO CRIM.R. 33(A)(6).

       {¶6}    The State’s assignment of error argues that the trial court erred by granting Mr.

Jones’ motion for a new trial because, according to the State, there is not a strong probability that

the new evidence would change the result of the trial. We disagree.

       {¶7}    Under Crim.R. 33(A)(6), a trial court may grant a motion for a new trial “[w]hen

new evidence material to the defense is discovered which the defendant could not with

reasonable diligence have discovered and produced at the trial.” A new trial is justified when the

newly discovered evidence “(1) discloses a strong probability that it will change the result if a

new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the

exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is

not merely cumulative to former evidence, and (6) does not merely impeach or contradict the

former evidence.” State v. Brown, 9th Dist. Summit No. 26309, 2012-Ohio-5049, ¶ 3, quoting

State v. Petro, 148 Ohio St. 505 (1947) syllabus. With respect to the last requirement, this Court

has observed that the emphasis must be on the substantial probability of a different result and

that, within that framework, newly discovered evidence that impeaches or contradicts the

evidence at trial can be considered under Crim.R. 33(A)(6). Brown at ¶ 4.

       {¶8}    We review an order granting a motion for a new trial on the basis of newly

discovered evidence for an abuse of the trial court’s discretion. State v. Williams, 43 Ohio St.2d

88 (1975), paragraph two of the syllabus. Although Mr. Jones moved for a new trial based on

several items of newly discovered evidence, the trial court’s analysis focused on the substantial
                                                4


probability that newly obtained DNA testing would lead to a different result at trial. We will,

therefore, limit our consideration to the newly obtained DNA evidence as well.

       {¶9}    Our analysis begins with the evidence that was presented at trial. There was no

physical evidence that linked Mr. Jones to the crime, and the evidence presented by the State

consisted of witness identifications from photographic arrays and the testimony of a jail

informant.

       {¶10} According to the Summit County Coroner, Mr. Rankin died as a result of two

gunshot wounds to the back of his head that were inflicted at very close range, either of which

would have been fatal. The Coroner estimated that Mr. Rankin died between 4:00 p.m. and 8:00

p.m. on February 13, 1993. Police found Mr. Rankin’s home in disarray and concluded that

although there was no evidence of forced entry, Mr. Rankin had been killed during the course of

a robbery.

       {¶11} At the time of his death, Mr. Rankin was seventy-one years old. His daughter,

Ellen Mary Davis, testified that despite his age, Mr. Rankin befriended many people who were

significantly younger and often gave them large amounts of money. Ms. Davis knew Mr. Jones

to be among her father’s younger acquaintances, and she testified at trial that her father had told

her once that he was afraid of Mr. Jones. Ms. Davis testified that she was out of town when her

father died, and that while she made her preparations to leave, her father asked if she would give

him her gun and his checkbook. Ms. Davis did not take his comment seriously.

       {¶12} Charles Hughey, who lived in Mr. Rankin’s neighborhood, testified that he and

his fiance’s son saw a man walking back and forth and getting into and out of a car during the

afternoon of February 13th. Mr. Hughey, who had never seen the man before, was concerned by

his behavior. Mr. Hughey testified that he confronted the man face-to-face out of concern for an
                                                 5


elderly neighbor. Mr. Hughey identified Mr. Jones from a photo array as the man he saw, but

only after selecting another man, Larry Hayes, first. Although his fiance’s son did not testify,

Mr. Hughey stated that the youth also selected Larry Hayes from the photo array. Neither placed

the individual that they saw at Mr. Rankin’s home.

       {¶13} Robert and Carrie Strittmatter lived across the street from Mr. Rankin’s

Independence Avenue home. On the night of the murder around 6:00 p.m., the Strittmatters

were preparing to celebrate their anniversary at a local restaurant. Mrs. Strittmatter testified that

around 6:20 p.m., she heard a car “flying out of [Mr. Rankin’s] driveway.” Mr. Strittmatter

testified that he saw someone coming out of Mr. Rankin’s house. Although Mr. Strittmatter

testified that he recognized Mr. Jones as a frequent visitor at Mr. Rankin’s house, he could not

identify Mr. Jones to the police as the person that he saw. Consequently, Police asked Mr.

Strittmatter to identify the person he saw from photo arrays on three or four separate occasions.

On the first occasion, just after the murder, he “picked out one gentleman that looked like the

gentleman that [he had seen] come out of the house.” That person was not Mr. Jones. Nine

months later, in December 1993, Mr. Strittmatter selected a man named Billy Wilson from

another photo array. Mr. Strittmatter recalled, “I think I said if he was clean-cut and shaved and

everything, that it could have been him.” In February 1994, Mr. Strittmatter made the same

statement about Billy Wilson again. Finally, in May 1994, Mr. Strittmatter identified Mr. Jones

from a photograph. Mr. Strittmatter testified that “[a]ccording to the pictures I was shown and

what the police officers told me, yes, I am sure it was him.”

       {¶14} The only testimony at trial that directly implicated Mr. Jones in the murder came

from William Grant Caton, who was incarcerated with Mr. Jones in the Summit County Jail.

According to Mr. Caton, he talked to Mr. Jones about the murder twice. He testified that on the
                                                  6


first occasion, Mr. Jones told him that a gun found in a car belonging to a man named Billy

Simpson was not the murder weapon, and that the actual murder weapon would never be found.1

According to Mr. Caton, Mr. Jones later told him that he shot Mr. Rankin during a robbery when

“things got out of hand.” On cross-examination, Mr. Caton acknowledged that he hoped to

obtain a community control sentence, help finding employment, and the ability to see his

children as a result of his cooperation in the prosecution of Mr. Jones.

         {¶15} In 2011, DNA testing results were obtained from seven pieces of physical

evidence related to the murder of Neal Rankin: (1) a rope that was tied to one of his wrists, (2) a

cigarette butt found at the murder scene, (3) the wrist area of the long-sleeved shirt that Mr.

Rankin was wearing when he was killed, (4) a clasp knife found at the murder scene, (5) the

barrel of the gun recovered from Billy Simpson’s car, (6) the magazine from the same weapon,

and (7) fingernail clippings taken from Mr. Rankin. None of the conclusive results implicate Mr.

Jones.

         {¶16} With respect to the rope, the testing of a first swab identified a mixture of DNA

from a major and minor contributor. The profile of the major contributor is consistent with Mr.

Rankin. Mr. Jones can be excluded as minor contributor. With respect to a second swab of the

rope, testing yielded a partial DNA profile that identified a mixture of three or more contributors,

but was inconclusive with regard to Mr. Rankin and Mr. Jones. A third swab of the rope also

generated a partial profile and identified a mixture of three or more contributors. The major

profile identified in that test is consistent with Mr. Rankin. The test result was inconclusive with

regard to Mr. Jones.

         1
          Although not the basis for the trial court’s decision to grant Mr. Jones a new trial, we
note that ballistics testing completed after the original trial established that the gun found in Billy
Simpson’s car was the gun from which the shots that killed Mr. Rankin were fired. As discussed
below, DNA obtained from blood found on the gun confirmed these results.
                                                7


       {¶17} With respect to the clasp knife, DNA testing identified a major and minor

contributor. The profile of the major contributor is consistent with Mr. Rankin. Mr. Jones can

be excluded as minor contributor. A second sample of the knife yielded inconclusive results

because it contained insufficient DNA. No DNA was obtained from the handle of the knife.

       {¶18} With respect to the shirt, two samples were tested. In the first, the profile of the

major contributor is consistent with Mr. Rankin, and Mr. Jones can be excluded as minor

contributor. Regarding the second, a mixture of DNA contributed by three or more individuals

was identified. Mr. Rankin cannot be excluded as a contributor to the mixture, but Mr. Jones can

be excluded.

       {¶19} With respect to the fingernail clippings, the only result was consistent with Mr.

Rankin’s DNA.

       {¶20} With respect to the murder weapon, DNA testing of the handle and barrel of the

gun identified a mixture of DNA contributed by three or more individuals. Mr. Rankin cannot be

excluded as a contributor, but Mr. Jones can be excluded. Regarding the magazine of the gun,

both Mr. Rankin and Mr. Jones can be excluded as contributors to the mixture of DNA

identified. Testing of the trigger yielded a partial DNA profile containing a mixture of two or

more individuals, but the results were inconclusive.

       {¶21} Reduced to the simplest possible terms, the DNA testing obtained in 2011

indicated that for every sample taken from the crime scene evidence that yielded a result other

than “inconclusive,” Mr. Jones can be excluded as the source of the DNA. At a minimum, as the

trial court concluded, the DNA evidence is relevant to the reliability of Mr. Caton’s testimony

that Mr. Jones confessed to the murder. Similarly, the test results related to blood found on the

gun found in Billy Simpson’s car confirm subsequent ballistics tests that established it as the
                                                 8


murder weapon and bear on the reliability of Mr. Caton’s testimony in that respect. Viewing the

DNA testing results in the context of the evidence at trial, therefore, there is a substantial

probability that were Mr. Jones tried again, a different outcome would result. The trial court did

not abuse its discretion by granting Mr. Jones’ motion for a new trial.

       {¶22} The State’s assignment of error is overruled.

                                                III.

       {¶23} The State’s assignment of error is overruled, and the order of the Summit County

Court of Common Pleas that granted Mr. Jones’ motion for a new trial is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       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(C). 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
                                          9




CARR, J.
HENSAL, J.
CONCUR

APPEARANCES:

MIKE DeWINE, Ohio Attorney General, and MICAH R. AULT, Assistant Attorney General, for
Appellant.

CARRIE WOOD, Attorney at Law, and MARK GODSEY, Attorney at Law, for Appellee.
