[Cite as State v. King, 2017-Ohio-181.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                Nos. 103947, 103948, and 103949



                                          STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                            EVIN KING
                                                     DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                  Case No. CR-94-312576-ZA

               BEFORE: Blackmon, J., Kilbane, P.J., and Celebrezze, J.

              RELEASED AND JOURNALIZED:                 January 19, 2017
ATTORNEYS FOR APPELLANT

Jennifer P. Bergeron
Mark A. Godsey
Ohio Innocence Project
P.O. Box 210040
Cincinnati, Ohio 45221


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Anthony Thomas Miranda
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Evin King (“King”) appeals from the trial court’s denial of his petition for

postconviction relief, motion for relief from judgment pursuant to Civ.R. 60(B), and

application for DNA testing and assigns eight errors for our review.1 Specifically, King

argues that (1) the trial court violated R.C. 2953.21(E) by denying the petition without

holding an evidentiary hearing; (2) he established that he was actually innocent of

murder; (3) the trial testimony of the state’s experts was false and misleading; (4) his trial

and postconviction counsel provided ineffective assistance; (5) the trial court’s admission

of the “scientifically unsupportable” testimony of the state’s experts violated his due

process rights; (6) the state violated his due process rights, both at the time of trial and

during postconviction proceedings, by withholding exculpatory evidence, in violation of

Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (7) the trial

court violated R.C. 2953.74(E) by denying his request to upload a DNA profile obtained

during postconviction proceedings into Combined DNA Index System (“CODIS”); and

(8) the trial court violated R.C. 2953.81(B) by failing to order the state to provide him

with the data and materials pertinent to postconviction DNA testing.

       {¶2} Having reviewed the record and pertinent law, we reverse and remand.

The apposite facts follow.

       {¶3} On the morning of June 22, 1994, King’s girlfriend, Crystal Hudson

(“Hudson”) was found murdered in her bedroom closet.         Hudson had been strangled and

her body was nude and partially decomposed. On July 5, 1994, King was indicted for


       1
        See appendix.
the murder of Hudson, in violation of R.C. 2903.02.           King pled not guilty to the

indictment and the matter ultimately proceeded to a jury trial.

       {¶4} At trial, testimony established that Hudson was last seen alive at 11:00 a.m.

on June 21, 1994. The state presented witnesses who saw King at the victim’s apartment

at various times during the 24-hour period from the morning of June 21 to the morning of

June 22. King presented witnesses who testified that they saw King at places other than

the victim’s apartment during this time period.

       {¶5} Investigators recovered semen from Hudson’s vagina and rectum, as well as

scrapings from underneath her fingernails. DNA testing was performed on the semen

and King was not a match. The matter found underneath Hudson’s fingernails was

untestable at the time as far as DNA was concerned.      The state’s theory during trial was

that Hudson had sex with an unidentified male prior to being murdered by King, and the

state supported this with expert testimony that the semen was hours to days old at the time

of Hudson’s death. King’s theory was that Hudson was killed by the unidentified man

whose semen, and thus DNA, was found in her vaginal and rectal swabs. The biological

material found in Hudson’s fingernail scrapings was essentially downplayed at trial,

because it was not scientifically tested.    A complete recitation of the facts presented at

trial can be found in State v. King, 8th Dist. Cuyahoga No. 68726, 1996 Ohio App.

LEXIS 4945 (Nov. 14, 1996) (“King I”). King was convicted of Hudson’s murder and

sentenced to a prison term of 15 years to life.

       {¶6} Thanks to advancements in DNA testing, King now has evidence that

excludes him as the source of the DNA found in the victim’s fingernail scrapings, as well
as evidence that the DNA profile from the fingernail scrapings is consistent with the

DNA that was found in the semen. “In short, DNA from one man — who was not Evin

King — was found both on the victim’s rape kit and underneath her fingernails.”2

Additionally, King has evidence that refutes the state’s expert testimony regarding the

time the semen was deposited in the victim.

       {¶7} King requested additional DNA test results and materials from the state

“[t]o complete his assessment of the case and confirm his hypothesis” that the “semen

present in the vagina and rectum of [the victim] was deposited contemporaneously with

her death,” and thus, “Unknown Male #1 is [the victim’s] killer.” King additionally

requested that the DNA profile be uploaded into CODIS to determine if the individual

could be identified.

       {¶8} On November 30, 2015, the trial court denied King’s amended successive

petition for postconviction relief, amended motion for relief from judgment, and motion

for DNA testing. The trial court issued findings of fact and conclusions of law in which

it concluded that the new evidence — including the 2009 DNA testing results and the

documents that refute the trial testimony regarding the time of the rape — created, at best,

a “battle of the experts.”   It is from this order that King appeals.

                              Petition for Postconviction Relief




       2
        Prior to this appeal, King filed various postconviction motions related to the new DNA
evidence, which the trial court denied. This court affirmed in State v. King, 8th Dist. Cuyahoga No.
97683, 2012-Ohio-4398 (the new DNA results do not clearly and convincingly establish King’s actual
innocence under R.C. 2953.23(A)(2)) (“King II”).
       {¶9} King’s first, second, and fourth assignments of error pertain to the trial

court’s denial of his petition for postconviction relief.

                                    Standard of Review

       {¶10} A postconviction relief proceeding is a collateral civil attack on a judgment,

therefore, we review the trial court’s ruling for an abuse of discretion.   State v. Gondor,

112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77.               A trial court’s judgment

regarding a postconviction petition filed pursuant to R.C. 2953.21 will be upheld absent

an abuse of discretion when the trial court’s finding is supported by competent and

credible evidence. Id. at  58. An abuse of discretion implies that the court’s attitude

is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157,

404 N.E.2d 144 (1980).

       {¶11} R.C. 2953.21(A) permits a person who has been convicted of a criminal

offense and who claims that there was a constitutional violation that rendered the

judgment void or voidable to file a petition asking the court to set aside the judgment or

grant other appropriate relief within 365 days after the transcript was filed in the direct

appeal.   For untimely or successive petitions for postconviction relief, there is a

heightened pleading requirement.      R.C. 2953.23(A). See also State v. Mack, 8th Dist.

Cuyahoga No. 101261, 2015-Ohio-2149, ¶ 9. It is undisputed that the petition in the

case at hand is untimely and successive.

       {¶12} R.C. 2953.23(A)(1) provides, in relevant part, that a court may not entertain

an untimely or successive petition unless the petitioner is able to demonstrate that the

following pertinent parts of the statute apply:
       (a) [T]he petitioner shows that the petitioner was unavoidably prevented
       from discovery of the facts upon which the petitioner must rely to present
       the claim for relief * * * [and]

       (b) The petitioner shows by clear and convincing evidence that, but for
       constitutional error at trial, no reasonable factfinder would have found the
       petitioner guilty of the offense of which the petitioner was convicted[.]

       {¶13} Furthermore, R.C. 2953.23(A)(2) provides, in relevant part, that a court may

entertain an untimely or successive petition if:

       The petitioner was convicted of a felony, the petitioner is an offender for
       whom DNA testing was performed * * * and analyzed in the context of and
       upon consideration of all available admissible evidence related to the
       inmate’s case * * *, and the results of the DNA testing establish, by clear
       and convincing evidence, actual innocence of that felony offense[.]


       {¶14} Under R.C. 2953.21(A)(1)(b), actual innocence means that

       had the results of the DNA testing * * * been presented at trial, and had
       those results been analyzed in the context of and upon consideration of all
       available admissible evidence related to the person’s case * * *, no
       reasonable factfinder would have found the petitioner guilty of the offense
       of which the petitioner was convicted[.]

                                    R.C. 2953.23(A)(2)

       {¶15} King argues that he is entitled to relief under R.C. 2953.23(A)(2) because

“all available admissible evidence” points to his innocence.     In support of his actual

innocence claim, King emphasizes that (1) he was excluded as a contributor to the

biological material recovered from Hudson’s vagina, rectum, and fingernail scrapings, (2)

the DNA profile recovered from sperm found in Hudson’s vagina and rectum is

consistent with the DNA profile recovered from the fingernail scrapings, (3) the damage

to Hudson’s rectum and the bruises on her body consistent with strangulation indicate that

she was raped at the time of death, and (4) the opinions of three DNA experts
demonstrate that the trial testimony of the state’s experts was scientifically invalid and

that the semen collected from Hudson’s body was deposited contemporaneously with her

death.

         {¶16} In King’s 2010 petition for postconviction relief, he argued that the new

DNA test results proved he was actually innocent. However, in King II, this court found

that this evidence, standing alone, did not clearly and convincingly establish King’s actual

innocence. King II at ¶ 19.     The concurring opinion in King II states, in part, as follows:

         Unless King can offer some explanation or testimony that refutes or casts

         doubt on the testimony of [the state’s experts], the trial court was right in

         denying the request for relief. Specifically, it would take a hearing with an

         expert or a report that can reasonably question or refute both [the state’s

         experts’] claims that the sperm was deposited prior to the murder, to make a

         more compelling argument that the origin of the fingernail scrapings is

         “outcome determinative” in this case.

         {¶17} King went back to the trial court in 2015 armed with expert reports that

either challenge the state’s experts’ opinions or request additional DNA testing materials

to reach a conclusion on the issue. Upon review, we find that the trial court abused its

discretion when it denied King’s request for additional DNA testing materials, request

that the “unknown” DNA profile be uploaded into CODIS, and request for an evidentiary

hearing. Hudson’s autopsy report shows that she was strangled to death, and there is

evidence of bruising on her head, face, and torso.     Additionally, she had damage to her

rectum, and semen was found in her vagina and rectum. When viewed in light of the
new advanced DNA test results, this evidence suggests that the victim was raped and

murdered by the same man whose DNA was found on her body. It is undisputed that

this man is not King.

       {¶18} We are aware that King’s motion for postconviction relief is successive and

he has presented this argument before.    However, “[t]his court has chosen not to apply

the doctrine of res judicata in cases where it would be inequitable * * *.” State v.

McGraw, 8th Dist. Cuyahoga No. 102807, 2016-Ohio-205, ¶ 16.

       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.

(Citations omitted.) State v. Ayers, 185 Ohio App.3d 168, 2009-Ohio-6096, 923 N.E.2d

654, ¶ 24 (8th Dist.).

       {¶19} Accordingly, we order that King be granted access to the DNA test results

and testing material, that the unknown DNA profile be uploaded into CODIS, and that

King be granted an evidentiary hearing . See State v. Johnson, 8th Dist. Cuyahoga No.

100503, 2014-Ohio-2646, ¶ 20 (“the use of new DNA testing to discover new biological

material that was previously undiscoverable, is grounds for granting the application”).

Additionally, we reverse the court’s denial of King’s petition for postconviction relief as

being premature.

       {¶20} King’s first, seventh, and eighth assigned errors are sustained. All other

assigned errors are rendered moot pursuant to App.R. 12(A)(1)(c).
      {¶21} Judgment reversed and case remanded for proceedings consistent with this

opinion.

      It is ordered that appellee recover of appellant its costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

MARY EILEEN KILBANE, P.J., CONCURS;
FRANK D. CELEBREZZE, JR., J., DISSENTS
WITH ATTACHED DISSENTING OPINION


FRANK D. CELEBREZZE, JR., J., DISSENTING:

      {¶22} I must respectfully dissent from the majority opinion. I would find that the

trial court’s judgment denying King’s application for DNA testing is not a final

appealable order because the trial court’s November 30, 2015 judgment entry fails to set

forth any reasons for denying King’s application.

      {¶23} R.C. 2953.73(D) requires the trial court to “enter a judgment and order that

either accepts or rejects the application [for DNA testing] and that includes within the

judgment and order the reasons for the acceptance or rejection as applied to the criteria

and procedures set forth in sections 2953.71 to 2953.81 of the Revised Code.”
(Emphasis added.)      Ohio courts have distinguished between judgment entries that

provide insufficient reasons for denying an application for DNA testing and entries that

fail to set forth any reasons for denying an application.

       {¶24} In State v. Smith, 8th Dist. Cuyahoga No. 87937, 2007-Ohio-2369, this court

explained that when a trial court’s judgment entry does not provide sufficient reasons —

rather than failing to state any reasons — for denying an application for DNA testing, this

court has jurisdiction to remand the matter to the trial court for further explanation. Id.

at ¶ 10.   In State v. Richard, 8th Dist. Cuyahoga No. 99449, 2013-Ohio-3918, the trial

court, in denying the defendant’s application for DNA testing, issued the following

journal entry: “[d]efendant’s application for DNA testing filed November 26, 2012, is

denied, as it does not fulfill the requirement of the statute as to being ‘outcome

determinative.’” Id. at ¶ 9. This court held that the trial court’s judgment denying the

application for DNA testing was contrary to law and an abuse of discretion because it

failed to provide any reasons as to how the court reached its conclusion.               Id.

Accordingly, this court reversed the trial court’s judgment denying the application and

remanded the matter, instructing the trial court to “state its reasons for finding that DNA

testing would not be outcome determinative.” Id. at ¶ 18.

       {¶25} In State v. Newell, 8th Dist. Cuyahoga No. 85280, 2005-Ohio-2853, the trial

court, in denying the defendant’s application for DNA testing, issued a journal entry that

stated, in its entirety, “[d]efendant’s motion for DNA testing hereby is denied.” Id. at ¶

3.   This court dismissed the appeal for lack of a final appealable order, concluding that

the court’s failure to set forth any reasons for denying the application contravened the
mandates of R.C. 2953.73(D). Id. at ¶ 6.       In State v. Hickman, 9th Dist. Summit No.

22279, 2005-Ohio-472, the trial court denied the defendant-appellant’s application for

DNA testing in a journal entry that stated, “upon due consideration of this court, it is

hereby ordered that the defendant’s motion is denied.” Id. at ¶ 3.        The Ninth District

dismissed the appeal for lack of a final appealable order, concluding that the trial court’s

journal entry neither apprised the applicant of the reasons for denying his application nor

enabled the appellate court to properly entertain the appeal on the merits. Id. at ¶ 10.

       {¶26} In the instant matter, the trial court’s November 30, 2015 journal entry

denying King’s application for DNA testing provides, in relevant part, “[King’s]

application for DNA testing, filed 6/12/2015, is denied.” Like Newell and Hickman, the

trial court failed to delineate its reasons for rejecting King’s application, as required by

R.C. 2953.73(D).

       {¶27} Accordingly, I dissent from the majority’s conclusion to reverse and

remand. I would find that the trial court’s judgment denying King’s application for

DNA testing is not a final appealable order.

       {¶28} King intertwines the issues raised in his application for DNA testing with

the issues raised in his successive petition for postconviction relief.   In other words, he

shoehorns his requests for a CODIS upload of the unknown DNA profile and access to

the DNA testing results and materials, and his actual innocence argument into both his

application for DNA testing and his successive petition for postconviction relief.

Although I would find that the trial court’s judgment denying King’s application for DNA

testing is not a final appealable order, R.C. 2953.23(B) provides that an order denying
relief sought in a petition for postconviction relief is, in fact, a final judgment that may be

appealed.   In order to avoid piecemeal litigation — which courts do not prefer — I

would examine this matter on the merits rather than dismissing the appeal based on the

trial court’s failure to comply with R.C. 2953.73(D).

       {¶29} I would respectfully dissent from the majority’s conclusions that the trial

court prematurely denied King’s successive petition for postconviction relief and abused

its discretion by denying King’s requests for a CODIS upload of the unknown DNA

profile, access to the DNA testing results and materials, and an evidentiary hearing.         I

would affirm the trial court’s judgment in all respects.

                              I. Postconviction DNA Testing

       {¶30} First, I respectfully disagree with the majority’s conclusion that the trial

court abused its discretion by denying King’s requests for an upload of the unknown

DNA profile into CODIS and access to the DNA testing results and materials. In

reaching this conclusion, the majority essentially finds that the trial court abused its

discretion by denying King’s application for DNA testing.

       {¶31} The majority analyzes the issues raised in King’s seventh and eighth

assignments of error under R.C. 2953.23(A)(2), which governs untimely or successive

petitions for postconviction relief; however, these assigned errors pertain to Ohio’s

statutory scheme for postconviction DNA testing, set forth in R.C. 2953.71 et seq. We

review a trial court’s decision to accept or reject an eligible inmate’s application for DNA

testing for an abuse of discretion. R.C. 2953.74(A); State v. Ayers, 185 Ohio App.3d

168, 2009-Ohio-6096, 923 N.E.2d 654, ¶ 12 (8th Dist.). I would conclude that the trial
court did not abuse its discretion by denying King’s application for postconviction DNA

testing.

                                   A. CODIS Upload

       {¶32} In his seventh assignment of error, King argues that the trial court violated

R.C. 2953.74(E) by denying his request for a CODIS upload of the unknown DNA

profile. R.C. 2953.74(E) provides that:

       [i]f an eligible offender submits an application for DNA testing under
       section 2953.73 of the Revised Code and the court accepts the application,
       the eligible offender may request the court to order, or the court on its own
       initiative may order, the bureau of criminal identification and investigation
       to compare the results of DNA testing of biological material from an
       unidentified person other than the offender that was obtained from the
       crime scene or from a victim of the offense for which the offender has been
       approved for DNA testing to the combined DNA index system maintained
       by the federal bureau of investigation.

(Emphasis added.)

       {¶33} In my view, King’s reliance on R.C. 2953.74(E) is misplaced. King fails to

appreciate the distinction between DNA testing and a comparison of DNA testing results

to CODIS. The clear and unambiguous language of the statute provides that DNA

testing results may be compared to CODIS if the trial court accepts the application and

DNA testing is conducted.

       {¶34} King’s 2004 application for DNA testing requested DNA testing of the

biological material recovered from Hudson’s fingernails.    The trial court granted King’s

application in 2008, and the DNA testing was conducted in 2009. King could have

requested a comparison of the results of the 2009 DNA testing — including the unknown

DNA profile — to CODIS; however, he failed to do so.
      {¶35} Unlike his 2004 application, King did not request DNA testing in his 2015

application; rather, King requested a CODIS upload of the unknown DNA profile.

Furthermore, the trial court denied King’s 2015 application. Thus, King is not entitled

to a CODIS upload under R.C. 2953.74(E).

      {¶36} King further argues that he is entitled to a CODIS upload under R.C.

2953.74(B)(2), which provides, in relevant part,

      If an eligible offender submits an application for DNA testing under section
      2953.73 of the Revised Code, the court may accept the application only if *
      * * [t]he offender had a DNA test taken at the trial stage in the case in
      which the offender was convicted of the offense for which the offender is
      an eligible offender and is requesting the DNA testing regarding the same
      biological evidence that the offender seeks to have tested, the test was not a
      prior definitive DNA test that is subject to division (A) of this section, and
      the offender shows that DNA exclusion when analyzed in the context of and
      upon consideration of all available admissible evidence related to the
      subject offender’s case as described in division (D) of this section would
      have been outcome determinative at the trial stage in that case.

(Emphasis added.) In my view, King’s reliance on R.C. 2953.74(B)(2) is misplaced

because the prior DNA testing was “definitive” and the DNA testing that King requested

in his 2015 application — a CODIS upload of the unknown DNA profile — would not be

outcome determinative.

                                 1. Definitive DNA Test

      {¶37} King acknowledges that prior DNA testing has been conducted regarding

the same biological evidence that he seeks to have tested, and that he was excluded as a

contributor to the biological material recovered from Hudson — both at the time of his

trial and in 2009. Nevertheless, King contends that the prior DNA testing was not

definitive, and “additional DNA testing could determine the source of the DNA.”
      {¶38} R.C. 2953.71(U) defines a definitive DNA test as follows:

      a DNA test that clearly establishes that biological material from the
      perpetrator of the crime was recovered from the crime scene and also
      clearly establishes whether or not the biological material is that of the
      eligible offender. A prior DNA test is not definitive if the eligible
      offender proves by a preponderance of the evidence that because of
      advances in DNA technology there is a possibility of discovering new
      biological material from the perpetrator that the prior DNA test may have
      failed to discover. Prior testing may have been a prior “definitive DNA
      test” as to some biological evidence but may not have been a prior
      “definitive DNA test” as to other biological evidence.

(Emphasis added.)

      {¶39} In State v. Prade, 126 Ohio St.3d 27, 2010-Ohio-1842, 930 N.E.2d 287, the

defendant-appellant was convicted of murdering his ex-wife.     Investigators discovered a

bite mark that the killer left on the fabric of a lab coat that the victim was wearing when

she was murdered.     However, the killer’s DNA was “overwhelmed or diluted” by the

significant amount of the victim’s blood on the lab coat. Id. at ¶ 18. Thus, the 1998

DNA testing of the bite mark showed only the victim’s DNA.

      {¶40} Both the trial court and the Ninth District concluded that the 1998 DNA

testing was definitive because the defendant was excluded as a contributor to the

biological material recovered from the lab coat.     The Ohio Supreme Court, however,

disagreed and concluded that the prior DNA testing was not definitive:

      the only information that the DNA testing on the lab coat revealed was that
      [the victim’s] blood was present on her lab coat. The state’s expert agreed
      that the 1998 DNA “test results [did] not give [him] any information about
      the killer” and that “the bite mark show[ed] [him the victim’s] DNA only.”
      Therefore, the testing excluded defendant only in the sense that the DNA
      found was not his, because it was the victim’s. But the “exclusion”
      excluded everyone other than the victim in that the victim’s DNA
      overwhelmed the killer’s DNA due to the limitations of the 1998 testing
       methods. Therefore, the exclusion was meaningless, and the test cannot be
       deemed to have been definitive.

Id. at ¶ 19.   Furthermore, the court held that “a prior DNA test is not ‘definitive’ within

the meaning of R.C. 2953.74(A) when a new DNA testing method can detect information

that could not be detected by the prior DNA test.” Id. at ¶ 23.

       {¶41} Subsequently, in     State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764,

992 N.E.2d 1095, the Ohio Supreme Court explained that a prior DNA test is not

definitive and an applicant would be entitled to further testing of DNA evidence if the

applicant could show “‘by a preponderance of the evidence that because of advances in

DNA technology there is a possibility of discovering new biological material from the

perpetrator that the prior DNA test may have failed to discover.”’ (Emphasis added.)

Id. at ¶ 35, quoting R.C. 2953.71(U). Furthermore, the court explained that the DNA

testing statutes

       now permit testing to positively identify the DNA’s source. R.C.
       2953.74(E) allows the trial court to order biological material from the crime
       scene to be compared to [CODIS] or compared to any identified person to
       determine whether that person is the DNA source.

Id.

       {¶42} In the instant matter, the prior DNA testing — both at the time of trial and in

2009 — excluded King as a contributor to the biological material recovered from Hudson.

 Unlike Prade, the biological material recovered from Hudson was not diluted or

compromised in any way, and the DNA testing did not exclude everyone other than

Hudson. Furthermore, unlike Noling, King does not argue that there is a possibility of

discovering new biological material from the perpetrator based on advances in DNA
technology. Instead, King argues that the contributor of the unknown DNA profile

could be identified if the profile is uploaded into CODIS.

        {¶43} The Cuyahoga County Coroner’s Office’s “DNA Laboratory Examination

Report,” dated January 29, 2009, provides, in relevant part, “[t]he [unknown] male DNA

profile obtained from [Hudson’s] vaginal swab was searched in the Ohio DNA database.

The profile will be maintained on file for future comparison.”     The record reflects that

this search failed to identify the unknown DNA profile’s contributor.

        {¶44} King takes issue with the fact that the unknown DNA profile was

“searched” in rather than “uploaded” into the state database.   However, R.C. 2953.74(E)

does not provide for an upload, but rather a DNA comparison.       The DNA testing at the

time of King’s trial clearly established that King was not a contributor to the biological

material recovered from Hudson’s vagina and rectum.          Furthermore, the 2009 testing

clearly established that King was not a contributor to the biological material recovered

from Hudson’s fingernail scrapings. Accordingly, I believe that the prior DNA tests

were, in fact, “definitive.”

                                2. Outcome Determinative

        {¶45} Under the amended version of R.C. 2953.71(L), “outcome determinative”

means

        had the results of DNA testing of the subject offender been presented at the
        trial of the subject offender requesting DNA testing and been found
        relevant and admissible with respect to the felony offense for which the
        offender is an eligible offender and is requesting the DNA testing, and had
        those results been analyzed in the context of and upon consideration of all
        available admissible evidence related to the offender’s case, there is a
        strong probability that no reasonable factfinder would have found the
        offender guilty of that offense.
       {¶46} As noted above, the prior DNA testing clearly established that King was

excluded as a contributor to the biological material recovered from Hudson.     Assuming,

arguendo, that King’s request for a CODIS upload was granted, and the upload identified

the contributor of the unknown DNA profile, I do not believe that this result would be

outcome determinative in light of the trial testimony of the state’s experts.

       {¶47} The state’s experts opined at trial that the semen recovered from Hudson —

from which the unknown DNA profile was obtained — was not deposited

contemporaneously with Hudson’s murder. Forensic serologist, Kay May testified that

at the time of Hudson’s death, the semen was anywhere from 16 hours to seven days old.

Chief Deputy Coroner, Dr. Robert Challener testified that it was “[v]ery unlikely” that the

semen was deposited contemporaneously with Hudson’s death.

       {¶48} Accordingly, had the CODIS upload that King requested been conducted,

presented at trial, and analyzed in the context of and upon consideration of all available

admissible evidence, I would find that a reasonable factfinder could still have found King

guilty of Hudson’s murder.

       {¶49} Based on the foregoing analysis, I would overrule King’s seventh

assignment of error.

                    B. Access to DNA Testing Results and Materials

       {¶50} In his eighth assignment of error, King argues that the trial court erred by

failing to order the state to provide him with all of the underlying data and materials

related to the postconviction DNA testing. In support of his argument, King directs this

court to R.C. 2953.81(B) and ().
       {¶51} King argues that he is entitled to the test results, including “all data and lab

bench notes underlying the 2009 Summary DNA Report,” because the results are a public

record under R.C. 2953.81(B).         R.C. 2953.81(B) provides that if DNA testing is

performed under R.C. 2953.73, “[t]he results of the testing are a public record.”

(Emphasis added.)     Although the test results are a public record, the underlying data,

bench notes, and testing materials that King requested access to are not.

       {¶52} King further argues that disclosure of the results and records is mandatory

pursuant to R.C. 2953.81(), which provides that if DNA testing is performed based on

an application for DNA testing under R.C. 2953.73, “[t]he court or the testing authority

shall provide a copy of the results of the testing to the prosecuting attorney, the attorney

general, and the subject offender.”    The record reflects that the 2009 DNA Laboratory

Examination Report was provided to King’s counsel, as required by R.C. 2953.81.

       {¶53} In my view, King is essentially framing a discovery issue in the context of a

postconviction relief claim of actual innocence and an application for postconviction

DNA testing, and asking this court to order discovery. The postconviction relief statutes

— R.C. 2953.21 and 2953.23 — and the postconviction DNA testing statutes do not

provide for the discovery that King sought in his application for DNA testing, which

included, but not limited to, access to the testing results, testing materials, and

microscopic tissue slides from the autopsy and rape kit.

       {¶54} The Ohio Supreme Court has never held that there is a right to discovery in

postconviction proceedings.    State v. Broom, 146 Ohio St.3d 60, 2016-Ohio-1028, 51

N.E.3d 620, ¶ 28, citing State ex rel. Love v. Cuyahoga Cty. Prosecutor’s Office, 87 Ohio
St.3d 158, 159, 718 N.E.2d 426 (1999); see State v. Harris, 8th Dist. Cuyahoga No.

103924, 2016-Ohio-4707, ¶ 7 (R.C. 2953.21 does not provide for discovery in preparation

for filing a petition for postconviction relief.).   In Broom, the Ohio Supreme Court

explained that because R.C. 2953.21 is silent about discovery, the decision to grant or

deny a request for discovery rests with a trial court’s sound discretion. Id.

       {¶55} The proper time for King to request access to or raise any discovery issues

regarding the testing results and materials was at the time of his trial.       However, the

record reflects that King failed to do so. Because King requested these materials during

postconviction proceedings, rather than at the time of his trial, he did not have a right to

the materials through the exchange of discovery.     Accordingly, I would overrule King’s

eighth assignment of error and find that the trial court did not abuse its discretion in

denying King’s request for access to the testing results and materials.

                                  C. Evidentiary Hearing

       {¶56} I respectfully disagree with the majority’s conclusion that the trial court

abused its discretion by denying King’s request for an evidentiary hearing.

       {¶57} R.C. 2953.73(D) provides, in relevant part, “[t]he [trial] court is not required

to conduct an evidentiary hearing in conducting its review of, and in making its

determination as to whether to accept or reject, the application.”        As noted above, we

review the trial court’s ruling on an application for DNA testing for an abuse of

discretion.   Because an evidentiary hearing is not required, I do not believe that the trial

court acted unreasonably, arbitrarily, or unconscionably in denying King’s request for

one.
       {¶58} For all of the foregoing reasons, I would find that the trial court did not

abuse its discretion by denying King’s 2015 application for DNA testing.

                     II. Successive Petition for Postconviction Relief

       {¶59} Second, I respectfully disagree with the majority’s conclusion that the trial

court prematurely denied King’s petition for postconviction relief. In my view, King’s

actual innocence claim is barred by res judicata, and King is not entitled to relief under

R.C. 2953.23(A)(2).

       {¶60} In his October 2010 petition for postconviction relief, King argued that the

2009 DNA testing results proved that he was actually innocent. The trial court denied

King’s petition. Furthermore, in King II, this court held that the 2009 DNA testing

results did not clearly and convincingly establish King’s actual innocence under R.C.

2953.23(A)(2).     Id. at ¶ 19.

       {¶61} Again, in his amended successive petition for postconviction relief, filed in

2015, King argued that the results of the 2009 DNA testing establish his actual innocence

by clear and convincing evidence. However, unlike his 2010 petition, King submitted

an affidavit, a letter, and trial testimony from experts to support his claim.   King asserts

that the documents from Keel, Spitz, and Zielaskiewicz support the theory that an

unknown third party raped and murdered Hudson, and refute the trial testimony of the

state’s experts.

       {¶62} The doctrine of res judicata applies to successive petitions for

postconviction relief. Natl. Amusements, Inc. v. Springdale, 53 Ohio St.3d 60, 62, 558

N.E.2d 1178 (1990); State v. Apanovitch, 107 Ohio App.3d 82, 87, 667 N.E.2d 1041 (8th
Dist.1995); McCann v. Lakewood, 95 Ohio App.3d 226, 237, 642 N.E.2d 48 (8th

Dist.1994).   Typically, res judicata bars claims that could or should have been raised at

trial or on direct appeal.    However, res judicata also applies to foreclose a defendant

from presenting claims that could or should have been asserted in a first petition for

postconviction relief. See Apanovitch at id.

       {¶63} In the instant matter, King’s actual innocence claim is not supported by any

new DNA evidence.         In fact, the DNA evidence remains the same today as it was in

2009, and no additional DNA testing has been conducted since that time.            Keel’s,

Spitz’s, and Zielaskiewicz’s opinions are not new evidence — they are merely new

opinions or interpretations regrading the state’s experts’ trial testimony. King could

have, and should have presented the experts’ opinions to support his 2010 postconviction

petition. However, King failed to do so.

       {¶64} Thus, I believe that King’s actual innocence claim based on the opinions of

Keel, Spitz, and Zielaskiewicz is barred by res judicata.   Accordingly, I would overrule

King’s first assignment of error.

                                       III. Conclusion

       {¶65} For all of the foregoing reasons, I would dismiss the appeal for lack of a

final appealable order.    The trial court’s judgment entry denying King’s application for

DNA testing failed to include its reasons for the denial, as required by R.C. 2953.73(D).

Had the trial court’s judgment entry complied with R.C. 2953.73(D), however, I would

affirm the trial court’s judgment in all respects.

                                        APPENDIX
Assignments of Error

1. A trial court’s denial of a petition for post-conviction relief without an evidentiary
hearing when that petitioner presents expert affidavits that directly challenge the scientific
validity of the testimony by the State’s trial experts and the State files nothing in response
violates R.C. 2953.21(E) and requires reversal.

2. The trial court erred when it denied petitioner’s successive petition for post-conviction
relief and his request for relief from judgment where the defendant presented evidence
establishing that he is actually innocent of the crime.

3. The trial court erred when it refused to grant relief where the defendant presented
unchallenged evidence establishing that the State’s case rested on false and misleading
trial testimony by its expert witnesses.

4. The trial court erred when it failed to grant relief based on an ineffective assistance of
trial counsel claim that was not previously pursued due to the ineffective assistance of
postconviction counsel.

5. The trial court erred when it failed to consider that the admission of the scientifically
unsupportable testimony of the State’s trial experts undermined the fundamental fairness
of his trial such that the defendant is entitled to relief based on due process.

6. The trial court erred when it failed to hold that the State violated the defendant’s due
process rights by refusing to provide exculpatory evidence at the time of trial and during
postconviction proceedings.

7. A denial of a request for a CODIS upload of a profile obtained during post-conviction
DNA testing violates R.C. 2953.74(E) and requires reversal.

8. The trial court erred when it did not order the State to produce to the defendant all of
the underlying data and materials generated during post-conviction DNA testing as
required by R.C. 2953.81(B).
