[Cite as State v. Johnson, 2014-Ohio-2646.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100503


                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                 ANTHONY JOHNSON
                                                      DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-00-397780

               BEFORE:          Blackmon, J., Rocco, P.J., and McCormack, J.

              RELEASED AND JOURNALIZED:                   June 19, 2014
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ATTORNEYS FOR APPELLANT

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


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Mary H. McGrath
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, J.:
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      {¶1} Johnson appeals the trial court’s denial of his application for postconviction

DNA testing and assigns the following three errors for our review:

      I. The trial court erred by holding that the results of post-conviction DNA
      testing would not be outcome determinative when test results could reveal
      the absence of appellant’s DNA and the simultaneous presence of another
      felon’s DNA.

      II. The trial court erred by denying DNA testing to appellant because the
      statute contemplates testing given the advances in DNA technology since
      his trial.

      III. The trial court erred by failing to explain the reasons for denying

      appellant’s request for DNA testing as required by R.C. 2953.73(D).

      {¶2} Having reviewed the record and pertinent law, we reverse the trial court’s

decision and remand for proceedings consistent with this opinion. The apposite facts

follow.

      {¶3} Johnson was indicted in three cases that were consolidated and tried to the

bench on May 23, 2001.        Two of the cases concerned the robbery of women in

downtown parking lots, and one of the cases concerned the robbery of a woman in a

Parma parking lot.

      {¶4} In all three cases, the victims identified Johnson from either a photo array,

live line-up, or both. Prior to the joint trial, Johnson filed a motion to suppress the

victims’ identification evidence, contending that he was wrongly identified by the victims

and that Frederick Norman was the perpetrator of the crimes. The basis for his argument

was that around the same time as the robberies, Cleveland Police were investigating

another string of downtown robberies and eventually arrested and charged Frederick
                                             4
Norman for these other robberies. Norman entered a guilty plea to those robberies. The

trial court denied the motion to suppress.

         {¶5} Johnson is only requesting the DNA testing for CR-397780 for which he

was indicted for three counts each of kidnapping and aggravated robbery. In that case,

on October 9, 2000 at 2:30 p.m., three women left their court reporting class on Superior

Avenue and walked to one of the women’s vehicle. The victims testified that they were

robbed by a single perpetrator who after taking their money forced them to drive to the

area of East 40th and Central Avenue where he exited the vehicle. They described the

robber as wearing a grey and maroon windbreaker and a green polo cap. Officers

canvassed the area and discovered the described clothing near the bushes of a vacant

house.

         {¶6} Two of the victims immediately picked Johnson out of the photo array and

all three victims identified Johnson from a live line-up.   At trial, the victims stated that

they had no doubt that Johnson was the person that robbed them. The driver of the car

stated that she was able to look at him from her rearview mirror as she drove and that she

made eye contact with him after dropping him off. She recalled that his lips were “very

pink,” although she never told officers about this observation.        Evidence was also

presented at trial that Johnson was excluded as a contributor to the DNA from the hair

found on the cap.
                                          5
       {¶7} The trial court found Johnson guilty of all counts in the October 9, 2000

robbery. 1 In State v. Johnson, 8th Dist. Cuyahoga No. 79831, 2002-Ohio-1661, this

court affirmed Johnson’s convictions but reversed and remanded for resentencing.

       {¶8} In April 2002, Johnson filed a pro se motion for a new trial claiming newly

discovered evidence. Attached to his motion was the affidavit of Frederick Norman,

who stated that he, not Johnson, committed the September 15, 2000 aggravated robbery.

The September 15 robbery is not the subject of the instant appeal. His motion for a new

trial was denied because the evidence from that case showed that there were two men

involved in committing the crime.

       {¶9} On May 14, 2002, Johnson filed a pro se application for DNA testing, with

an affidavit attached from Frederick Norman, admitting to committing the October 9,

2000 robbery. Johnson requested that DNA testing of the windbreaker, cap, and the hair

strand recovered from the cap be compared with Norman’s DNA. On July 1, 2002, the

trial court denied the application without opinion. Johnson did not appeal the trial

court’s denial.

       {¶10} On October 1, 2002, Johnson filed a pro se motion for a new trial regarding

the October 9, 2000 robbery based on Norman’s confession, but attached Norman’s

affidavit in which he confessed to committing the September 15, 2000 robbery, which


       The trial court also found Johnson guilty of kidnapping and aggravated
       1

robbery in CR-400550, for robbing two women in a downtown parking lot on
September 15, 2000. Johnson was also found guilty in CR-399616 of robbery,
kidnapping, gross sexual imposition, and receiving stolen property regarding the
robbery of a woman in a Parma parking lot.
                                           6
involved two robbers, not the affidavit in which he confessed to the October 9, 2000

robbery. The court denied the motion on November 21, 2002, and the decision was

affirmed on appeal. State v. Johnson, 155 Ohio App.3d 145, 2003-Ohio-5637, 799

N.E.2d 650 (8th Dist.). In October 2004, Johnson filed a second pro se application for

DNA testing, requesting the same testing as he had requested in the first application.

The trial court denied his second request, and Johnson did not appeal the decision.

       {¶11} On February 8, 2013, Johnson, with the help of the Ohio Innocence Project,

filed a third application for DNA testing. Johnson argued that res judicata did not

prevent his third application for DNA testing because in 2006, S.B. 262 altered the DNA

statute by lowering the burden to meet the definition of “outcome determinative” and that

advances in DNA testing would allow the testing of a hair without a root, and possible

other DNA could be recovered and tested on the cap and jacket.

       {¶12} The trial court denied Johnson’s application for postconviction DNA testing,

stating as follows:

       Defendant’s application for DNA testing is denied. The application fails to

       satisfy the statutory requirements for acceptance under Ohio R.C.

       2953.74(B)(1) since he did not request or have DNA testing at the trial

       stage, DNA testing was available. Furthermore, under Ohio R.C.

       2953.74(B)(1) and (C)(5),     Johnson fails to demonstrate the statutory

       requirement that DNA testing could be outcome determinative, such that in
                                            7
       light of all available evidence there would be a strong possibility that this

       court would not have found him guilty.

Journal Entry, September 11, 2013.

                              R.C. 2953.74(B)(1) and (B)(2)

       {¶13} We will address Johnson’s second assigned error first.           In his second

assigned error, Johnson argues that the trial court erred by finding that he did not satisfy

the criteria of R.C. 2953.74(B)(1).

       {¶14} We review the 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 (8th Dist.), ¶ 12. An abuse of

discretion is “more than an error of law or of judgment; it 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).

       {¶15} R.C. 2953.74(B) states that “[i]f 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 one of the following applies”:

       (1) The offender did not have 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 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 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
                                             8
         of DNA testing were not generally admissible in evidence, or DNA testing
         was not yet available.

         (2) The 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.

         {¶16} Johnson’s application falls within the purview of R.C. 2953.74(B)(1)

because while Johnson’s DNA was tested and compared to the human hair discovered on

the polo cap, Johnson did not request that Norman’s DNA be tested during the trial stage.

 Nor did he request that the clothing be tested for other DNA. We conclude Johnson

fulfilled the requirement, which requires that “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.”

         {¶17} The state argues that DNA testing was available at the time of Johnson’s

trial.   However, DNA testing has drastically evolved since that time.            In State v.

Reynolds, 186 Ohio App.3d 1, 2009-Ohio-5532, 926 N.E.2d 315 (2d Dist.), the Second

District addressed the advancement of DNA testing compared to the testing that was

available at the time of the defendant’s trial in September 2001. Notably, the trial in

Reynolds was six months after Johnson’s trial. The Reynolds court held:

         In its decision, the trial court pointed out that Reynolds declined DNA
         testing of evidentiary materials during the initial trial when “DNA testing
         was available and generally accepted and the results of the testing were
                                    9
generally admissible in evidence.” The State argues that as a result of
Reynolds’s failure to request DNA testing, he is now legally precluded from
obtaining testing under R.C. § 2953.71 through R.C. § 2953.83. We
disagree.

Reynolds asserts that there have been several advancements in DNA testing
since his trial. Specifically, Reynolds identifies three types of DNA testing
that have been developed since his trial, namely Y-STR, mini-STR, and
touch DNA. While Y-STR testing allows DNA technicians to differentiate
between male and female DNA from a mixed source, mini-STR and touch
DNA permit technicians to obtain a DNA profile from very small degraded,
and compromised samples.

 In State v. Emerick, 170 Ohio App.3d 647, 2007-Ohio-1334, 868 N.E.2d

742, we found that “[w]hile 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).”      In addition to

Y-STR DNA analysis, mini-STR and touch DNA are also now available for

use by Reynolds. By enacting R.C. § 2953.71 through R.C. § 2953.83, the

General Assembly chose to allow otherwise qualified inmates the

opportunity to take advantage of advances in technology that were not

available at the time of their trial. Emerick, 170 Ohio App.3d 647,

2007-Ohio-1334, 868 N.E.2d 742. Thus, we find that the evidentiary

materials Reynolds seeks to be tested are eligible for analysis pursuant to

R.C. § 2953.74(B)(1).
                                            10
Id. at ¶ 17-19.

       {¶18} Additionally, this court in State v. Ayers, 185 Ohio App.3d 168,

2009-Ohio-6096, 923 N.E.2d 654 (8th Dist.), acknowledged the evolvement of DNA

testing. In that case, the defendant was brought to trial approximately six months prior to

Johnson’s trial; therefore, the DNA evidence in existence at the time was similar to that

existing at the time of Johnson’s trial. In Ayers, we concluded that the trial court erred in

denying Ayers’s application and held that the more sophisticated DNA testing available

now, was not available at the time of the defendant’s trial. Id. at ¶ 30.

       {¶19} The state cites to a case from the Sixth Circuit, which indicated that

mitochondrial DNA testing was available in a trial conducted in federal court in 2000.

However, it does not appear, based on the fact that there is limited case law, that the

testing was widely used or accepted. Moreover, the state concedes that the Y-STR

testing was not available at the time of Johnson’s trial.   As we acknowledged in Ayers,

“refinements in testing” could reveal biological material in 2009 that could not have been

discovered 10 years earlier. Id. at ¶ 42.

       {¶20} Here, testing the jacket and cap that were worn by the robber, could reveal

additional DNA by testing for DNA in biological material such as sweat or skin cells.

The DNA can then be compared to Norman’s DNA or the DNA in the Combined DNA

Index System (“CODIS”).           Similarly, in State v. Noling, 136 Ohio St.3d 163,

2013-Ohio-1764, 992 N.E.2d 1095, the defendant had identified alternative suspects and

requested DNA testing that was not available at the time of trial.    The trial court denied
                                              11
the defendant’s application. The Ohio Supreme Court reversed the trial court stating:

“The trial court failed to consider Noling’s application in the context of the new statutory

requirements—whether there is a possibility of discovering new biological material that is

potentially from the perpetrator that the prior DNA test may have failed to discover.”

Thus, the use of new DNA testing to discover new biological material that was previously

undiscoverable, is grounds for granting the application.

       {¶21} Like in Ayers, Johnson is also bearing the cost of DNA testing through

non-public means; therefore, testing will not financially burden the state. Accordingly,

Johnsons’s second assigned error is sustained.

                                 Outcome Determinative

       {¶22} In his first and third assigned errors, Johnson argues that the trial court erred

by concluding the testing would not be outcome determinative and by failing to set forth

more explicit reasons in its journal entry.

       {¶23} In addition to being required to show that testing was not available at the

time of trial, the inmate must show that the DNA exclusion when analyzed in the context

of and upon consideration of all available admissible evidence related to the defendant’s

case would have been outcome determinative at the trial in that case. R.C. 2953.74(B)(1).

       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
                                          12
       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 * * *.” R.C. 2953.71(L). (Emphasis added sic.)

State v. Prade, 126 Ohio St.3d 27, 2010-Ohio-1842, 930 N.E.2d 287.

       {¶24} Thus, the term “outcome determinative” is a conclusion based upon

consideration of all the available evidence. The trial court found that the DNA testing

would not be outcome determinative based on the evidence. We conclude the trial court

erred in making this conclusion.

       {¶25} The case for which Johnson is requesting the DNA testing only concerned

the robbery on October 9, 2000. In that case, the victims testified that there was only one

perpetrator and described the clothing he wore, which was later recovered.             We

understand that the victims picked Johnson out of a live line up and photo array, however,

if his DNA is not on the clothing but Norman’s is, this would make the victims’

identification suspect, especially because Norman has confessed to committing this

robbery.

       {¶26} Thus, we conclude that the DNA testing would be outcome determinative. If

Norman’s DNA is located on the hat and jacket but Johnson’s DNA is not found on the

hat and jacket, the DNA evidence along with Norman’s confession, would point to

Norman as the perpetrator of the crime.

       {¶27} Although the trial court could have been more explicit in explaining its

reasons why the DNA testing would not be outcome determinative, we conclude given

the confession by Norman and the fact there was only one perpetrator to the robbery, any
                                            13
decision that the testing would not be outcome determinative would be erroneous.

Accordingly, Johnson’s first and third assigned errors are sustained.

       {¶28} Judgment is reversed and remand for proceedings consistent with this

opinion.

       It is ordered that appellant recover of appellee his 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

KENNETH A. ROCCO, P.J., and
TIM McCORMACK, J., CONCUR
