[Cite as State v. Cable, 2018-Ohio-3923.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                       MIAMI COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :  Appellate Case No. 2017-CA-23
                                                  :
 v.                                               :  Trial Court Case No. 2016-CR-510
                                                  :
 MICHAEL A. CABLE                                 :  (Criminal Appeal from
                                                  :   Common Pleas Court)
         Defendant-Appellant                      :
                                                  :
                                             ...........

                                            OPINION

                          Rendered on the 28th day of September, 2018.

                                             ...........

JANNA L. PARKER, Atty. Reg. No. 0075261, 201 W. Main Street, Troy, Ohio 45373
     Attorney for Plaintiff-Appellee

CHARLES M. BLUE, Atty. Reg. No. 0074329, 401 E. Stroop Road, Kettering, Ohio 45429
    Attorney for Defendant-Appellant

                                            .............
                                                                                       -2-



HALL, J.

       {¶ 1} Michael Cable appeals from his convictions for aggravated burglary and

aggravated robbery. He contends that the trial court erred by not providing him the

assistance of a DNA expert at state expense. He further contends the trial court erred by

failing to merge the convictions. Finally, Cable contends that the convictions were not

supported by sufficient evidence and were against the manifest weight of the evidence.

       {¶ 2} We conclude that none of Cable’s contentions have merit, and we affirm the

trial court’s judgment.

                           I. Facts and Procedural History

       {¶ 3} This case arises from a break-in at a Piqua apartment. Around 3 a.m. on

October 28, 2014, two men forced their way into the apartment while the residents, Ryan

and Mackenzie, were home. The men’s faces were covered, they wore baggy clothing,

and they had duct tape wrapped around their fingers. The men had guns and demanded

money, drugs, and phones. One of the men hit Ryan in the head with a pistol, causing a

laceration. Later, the same man sliced open Ryan’s chest with a box cutter. Neither victim

could identify either man. Police found two pieces of duct tape in Ryan’s room. DNA

testing found Cable’s DNA on the sticky side of one of the pieces of tape.

       {¶ 4} Cable was indicted in September 2016 on charges of aggravated robbery, in

violation of R.C. 2911.01(A)(3), and aggravated burglary, in violation of R.C.

2911.11(A)(1), both first-degree felonies.1 Cable filed a motion to suppress and a motion


1 Cable was initially indicted on September 28, 2015, on charges of aggravated robbery,
aggravated burglary, and felonious assault. The State dismissed that case without
prejudice on October 27, 2015, pending test results from the Miami Valley Regional Crime
Lab.
                                                                                          -3-


to retest the DNA evidence from the piece of duct tape. In the motion to retest, he asked

the trial court to appoint an independent DNA expert to test the duct tape, on the ground

that “the DNA evidence found at the scene and allegedly matched to the Defendant is the

only evidence linking the Defendant to this crime scene.” After the trial court overruled the

motion to suppress, Cable filed a supplemental motion to retest. The trial court overruled

the motion to retest in February 2017, concluding that Cable had failed to show a

particularized need for a DNA expert.

       {¶ 5} Cable then filed a motion asking the trial court to reconsider its decision

denying the motion to retest. The court held a hearing at which the State presented

testimony from the police officers who collected the pieces of duct tape and the forensic

scientists at the Miami Valley Regional Crime Lab who tested them. Concluding that

Cable had still not shown a particularized need for a court-appointed DNA expert, the trial

court denied the motion to reconsider.

       {¶ 6} A superseding indictment added a repeat violent offender specification to

each charge in the original indictment. The two charges and specifications were tried to

a jury. The jury found Cable guilty of them all. The trial court declined to merge the

aggravated burglary and aggravated robbery offenses and sentenced Cable to a total of

26 years in prison.

       {¶ 7} Cable appeals.

                                         II. Analysis

       {¶ 8} Cable presents three assignments of error for our review. The first

assignment of error argues that the trial court should have appointed a DNA expert to

assist the defense. The second assignment of error argues that the court should have
                                                                                           -4-


merged the aggravated burglary and aggravated robbery offenses. The third assignment

of error argues that the convictions are not supported by sufficient evidence and are

against the manifest weight of the evidence.

                             A. DNA expert at state expense

       {¶ 9} The first assignment of error alleges:

       THE TRIAL COURT VIOLATED APPELLANT’S DUE PROCESS IN

       VIOLATION OF HIS RIGHTS UNDER THE FOURTH AND FOURTEENTH

       AMENDMENTS TO THE UNITED STATES CONSTITUTION BY DENYING

       HIS MOTION FOR FUNDS TO OBTAIN A DNA EXPERT AT STATE

       EXPENSE.

       {¶ 10} Constitutional due process “requires that an indigent criminal defendant be

provided funds to obtain expert assistance at state expense only where the trial court

finds, in the exercise of a sound discretion, that the defendant has made a particularized

showing (1) of a reasonable probability that the requested expert would aid in his defense,

and (2) that denial of the requested expert assistance would result in an unfair trial.” State

v. Mason, 82 Ohio St.3d 144, 694 N.E.2d 932 (1998), syllabus. In making this

determination, the court must consider “(1) the effect on the defendant’s private interest

in the accuracy of the trial if the requested service is not provided, (2) the burden on the

government’s interest if the service is provided, and (3) the probable value of the

additional service and the risk of error in the proceeding if the assistance is not provided.”

Id. at 149.

       {¶ 11} To establish a due process violation, “ ‘ “a defendant must show a

reasonable probability that an expert would aid in his defense, and that denial of expert
                                                                                        -5-

assistance would result in an unfair trial.” ’ ” Id., quoting State v. Broom, 40 Ohio St.3d

277, 283, 533 N.E.2d 682 (1988), quoting Little v. Armontrout, 835 F.2d 1240, 1244 (8th

Cir.1987). The mere possibility that an expert could have had some value to the defense

is not enough. State v. Campbell, 90 Ohio St.3d 320, 328, 738 N.E.2d 1178 (2000).

      {¶ 12} Cable asked the trial court to appoint an “independent examiner to review

the tests performed by the Miami Valley Regional Crime Lab and their result, and, if

necessary, be permitted to perform his or her own tests to determine the validity of the

Crime Lab’s findings.” Cable argued that this was important because the DNA evidence

was the only evidence linking him to the crimes. Cable provided the trial court with the

name and cost of a potential DNA expert, who would perform a case review, help the

defense understand the crime lab’s DNA test results, and determine if the results were

supported by the underlying data. The cost for the potential expert’s “Case

Consultation/Review” was listed as $295/hour, with a five hour minimum, and a review

“usually” required 5-10 hours, or $1,475 to $2,950. Additionally, expert testimony cost

“$295/hour or $1,800/day + expenses,” and DNA testing of evidence and a known

reference cost “$995.”

      {¶ 13} Cable asserted in his motion to reconsider a number of potential procedural

problems with the collection and testing of the DNA evidence. He noted that the crime

scene was not secured before the duct tape was found. He also noted that the two pieces

of duct tape were submitted to the crime lab for testing and that several lab reports were

issued on different dates addressing different test results. Finally, Cable noted that the

piece of duct tape on which his DNA was found had been returned to the Piqua Police

Department and then resubmitted to the crime lab for additional testing.
                                                                                         -6-


       {¶ 14} The trial court denied the motion, as well as the motion to reconsider its

denial, because it concluded that Cable had failed to make a particularized showing of

need. The court found that Cable had not given a specific reason why he needed expert

assistance. He had asserted only that an expert “could assist” the defense but failed to

give a reason to think that an independent DNA analysis would be more than merely

cumulative. “The mere possibility that independent DNA analysis could have some value

to the defense,” said the trial court, “is not enough.”

       {¶ 15} The evidentiary hearing on the motion to reconsider featured extensive and

comprehensive testimony on the collection, handling, and testing of the duct tape pieces

from the police officers who found the tape, Todd Voskuhl and Jeremy Weber, and from

the two forensic scientists at the Miami Valley Regional Crime Lab who tested the tape,

Jennifer Yoak, a latent fingerprint examiner, and Amy Dallaire, a forensic chemist in DNA

and serology.

       {¶ 16} Officer Voskuhl testified that he responded to the scene around 3:12 a.m.,

where he talked to the victims and took photographs. Voskuhl left the scene but was later

told by another officer that the victims had reported that the suspects were wearing duct

tape on their fingers. So Voskuhl returned and found a piece of rolled duct tape on an air

mattress in Ryan’s bedroom. Officer Voskuhl collected the piece of duct tape, packaged

it, sealed it, signed his initials over the seal, and placed it in an evidence locker in the

police department’s property room. He also completed a Miami Valley Crime Lab

submission sheet. On the sheet, he listed the rolled piece of duct tape and wrote the

analysis codes for latent-fingerprint processing and serology/DNA. In the space for a

case-history narrative, Voskuhl wrote: “Suspect was wearing duct tape on fingers during
                                                                                          -7-


the crime. Please process for fingerprints and/or DNA for a possible suspect match.” He

placed the lab submission sheet in a file tray where the property custodian, who was

responsible for actually submitting the evidence to the crime lab, would retrieve it. Officer

Voskuhl said that someone—he didn’t know who—later modified the lab submission

sheet by listing another piece of evidence, identified as “Piece of duct tape,” and writing

an analysis code for serology/DNA.

       {¶ 17} Next, Officer Weber testified that he had been a detective with the Piqua

Police Department and was tasked with following up on the investigation. He visited the

scene around 10:30 a.m. on the day of the crime, where he met with one of the victims,

Mackenzie, and viewed the crime scene. On the floor of Ryan’s bedroom, Weber found

another piece of duct tape, which, Mackenzie told him, had been on the bed until Ryan

put it on the floor. Officer Weber collected the piece of duct tape, placed it in an envelope

and, when he returned to the police station, packaged and sealed the tape. He also

completed a lab submission sheet requesting that the duct tape be tested for DNA, but

his lab submission sheet was never sent to the crime lab. Instead, Weber’s test request

was added to Officer Voskuhl’s lab submission sheet. That lab submission sheet and the

two pieces of duct tape were submitted to the crime lab on November 4, 2014, by Chief

Deputy Tom Christy, the property custodian at the time.

       {¶ 18} Several months later, in March 2015, Officer Weber called the crime lab and

asked a serologist what tests had been done on the duct tape and what other tests could

be done to identify a suspect. It seems that the inside of the piece he collected had not

been tested, so Weber resubmitted that piece of duct tape so that the inside (the sticky

side) could be tested for the presence of DNA. Officer Weber made it clear in his
                                                                                          -8-


testimony that only two pieces of duct tape were ever collected from the crime scene, one

by him and one by Officer Voskuhl.

       {¶ 19} Latent fingerprint examiner Jennifer Yoak then testified that she looked for

fingerprints on the piece of rolled duct tape, which the lab referred to as submission 1, the

piece collected by Officer Voskuhl. Yoak also testified about the crime lab’s internal chain-

of-custody report for submission 1, which showed exactly where and in whose custody

the evidence was at all times. She further testified about the testing protocol. Yoak

explained that an item submitted for both DNA and fingerprint testing is taken into the

custody of the latent-fingerprint section. But to avoid cross-contamination from the

fingerprint test, a DNA analyst first swabs the item to get samples for DNA and serological

tests. Yoak also testified that the lab follows the analysis codes written on the lab

submission sheet, not what is written in the case-history narrative. She said the analysis

codes written on the lab submission sheet in this case showed that submission 1 was to

be tested for fingerprints and DNA and that submission 2, the piece of duct tape collected

by Officer Weber, was to be tested only for DNA. Yoak said that she never saw or took

custody of submission 2.

       {¶ 20} The last witness was Amy Dallaire, who testified that she had worked at the

crime lab as a forensic scientist in DNA/serology for over 14 years. She talked about the

secure transfer of evidence inside the lab and the chain-of-custody reports. Dallaire

explained that any time an item of evidence is moved, it is scanned out of one location

and then into another location by the person taking custody of the item. She said that the

chain-of-custody report for submission 1 (the piece of rolled duct tape found by Officer

Voskuhl) showed that her department initially took custody of it from Tom Christy of the
                                                                                        -9-


Piqua Police Department. Dallaire said that no DNA test was performed on submission

1. Rather, as the report shows, it was transferred to the latent-fingerprint section for

processing. There, she said, a DNA/serology analyst obtained test samples before the

latent-print examination, to avoid cross-contamination. Dallaire said that submission 1

tested presumptively positive for blood and that no further DNA/serological test was

performed on it.

      {¶ 21} As for submission 2 (the piece of duct tape found by Officer Weber), Dallaire

testified that the chain-of-custody report showed that it was submitted by Tom Christy at

the same time as submission 1 was submitted. Submission 2 was placed in the outer

property room and then retrieved by a DNA/serology analyst and placed in the serology

property room. Dallaire said that she took custody of submission 2 and tested it. On the

outside of the piece of duct tape, she observed red-brown staining, which she tested for

the presumptive presence of blood and DNA. It was blood, and Dallaire determined that

the blood on the outside of the tape was from Ryan. Dallaire returned submission 2 to the

serology property room the same day. A few days later, it was returned to the Piqua Police

Department, according to the usual practice of the crime lab. Dallaire said that submission

2 never went to the latent-fingerprint section, because according to the lab submission

sheet, only DNA testing was requested for the item. Later, in April 2015, submission 2

was resubmitted so that the inside (the sticky side) of the duct tape could be tested for

touch DNA. Dallaire put the major component of the DNA she found from the inside of the

tape into the CODIS database, which led to Cable’s identity. Later, a DNA standard from

Michael Cable was obtained, which she tested; that test result showed that the DNA on

the tape was that of Cable.
                                                                                         -10-


       {¶ 22} Dallaire further testified about how she performed the tests on submission

2. She talked about the different machines that conducted the DNA tests—how they work

and how they are calibrated, cleaned, and certified to ensure accurate testing. She said

that all the machines were in proper working order during the testing done in this case.

Dallaire also talked about the efforts that the lab makes to prevent cross-contamination.

       {¶ 23} The hearing focused on the chain of custody of the two pieces of duct tape,

what tests were conducted on each piece and why, and the timing of the tests and results.

Defense counsel never asked Dallaire about the actual DNA-test results, the data that

she collected and analyzed, or her conclusion that the DNA found on submission 2 (the

piece of duct tape found by Officer Weber) came from Cable. In the end, the trial court

denied Cable’s request for a DNA expert, saying that “[t]here was nothing presented at

the hearing which would demonstrate that the defendant has a particularized need for a

court appointed DNA expert.”

       {¶ 24} Cable argues that certain aspects of the physical evidence collection and

handling raised issues in how the DNA evidence was collected and tested. He says that

he demonstrated a “reasonable probability” that a DNA expert “would aid in his defense.”

He says that he needed an independent DNA expert to assess the strength of the DNA

evidence. In his argument, Cable makes much of the fact that the DNA evidence was the

only evidence that linked him to the crime. However, even if only a single piece of

evidence links the defendant to a crime, before ordering the state to pay for expert review,

the law still requires the defendant to make a “particularized showing,” which requires

showing more than the mere possibility that an expert could help the defense. Presenting

the trial court with nothing more than speculation as to the likely value of an expert does
                                                                                         -11-

not amount to a “particularized showing.” Campbell, 90 Ohio St.3d at 328, 738 N.E.2d

1178. As the Eighth District has said about DNA evidence: “That there could possibly be

errors in forensic science is a truism, not a demonstration of a particularized need for an

independent forensic expert.” State v. Dennis, 2017-Ohio-4437, 93 N.E.3d 277, ¶ 19 (8th

Dist.). If the mere possibility of error were enough, “all defendants would be entitled to

their own forensic experts in every case involving DNA evidence.” Id. at ¶ 20.

       {¶ 25} Cable’s arguments here are all speculative. We see nothing in the record

that suggests anything improper in the collection, handling, or testing of the piece of duct

tape bearing Cable’s DNA. There is also nothing in the record to indicate that prior to the

DNA hit the police had any idea of Cable’s identity. Because his identity was unknown

and there is no evidence of any possibility of contamination of the evidence with some

unknown person’s DNA, one can only conclude that Cable was wearing that piece of tape

on a finger at the time of the offense, when it was left at the apartment.2 Given these

facts, the trial court could reasonably have found that Cable failed to make a

“particularized showing” that a DNA expert would aid his defense and that an unfair trial

would result without such an expert. Consequently, we cannot conclude that the trial

court’s decision in this case not to appoint an expert was an abuse of discretion.

       {¶ 26} The first assignment of error is overruled.

                                        B. Merger

       {¶ 27} The second assignment of error alleges:

       THE TRIAL COURT ERRED BY CONVICTING APPELLANT OF ALLIED



2Mackenzie testified that Cable had never been to her apartment. Ryan testified that
Cable was a total stranger to him.
                                                                                       -12-


      OFFENSES OF SIMILAR IMPORT.

      {¶ 28} Cable argues that his offenses of aggravated robbery and aggravated

burglary should merge for sentencing purposes under R.C. 2941.25.

      {¶ 29} The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution and Article I, Section 10, of the Ohio Constitution prohibit multiple

punishments for the same offense. This prohibition is codified in R.C. 2941.25:

      (A) Where the same conduct by defendant can be construed to constitute

      two or more allied offenses of similar import, the indictment or information

      may contain counts for all such offenses, but the defendant may be

      convicted of only one.

      (B) Where the defendant’s conduct constitutes two or more offenses of

      dissimilar import, or where his conduct results in two or more offenses of

      the same or similar kind committed separately or with a separate animus as

      to each, the indictment or information may contain counts for all such

      offenses, and the defendant may be convicted of all of them.

“R.C. 2941.25 focuses on the defendant’s conduct.” State v. Ruff, 143 Ohio St.3d 114,

2015-Ohio-995, 34 N.E.3d 892, ¶ 26. “In other words, how were the offenses committed?”

Id. at ¶ 25. If the offenses were committed in any of the following ways, the offenses are

not allied offenses of similar import, meaning that “the offenses cannot merge and the

defendant may be convicted and sentenced for multiple offenses: (1) the offenses are

dissimilar in import or significance—in other words, each offense caused separate,

identifiable harm, (2) the offenses were committed separately, or (3) the offenses were

committed with separate animus or motivation.” Id. The merger test, then, considers the
                                                                                             -13-

conduct, the animus, and the import. See id. at ¶ 31.

       {¶ 30} “An appellate court applies a de novo standard of review in reviewing a trial

court’s R.C. 2941.25 merger determination.” State v. Hazley, 2d Dist. Montgomery No.

27107, 2016-Ohio-7689, ¶ 16, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-

5699, 983 N.E.2d 1245, ¶ 28. “The defendant bears the burden of establishing his

entitlement to the protection provided by R.C. 2941.25 against multiple punishments for

a single criminal act.” Williams at ¶ 28.

       {¶ 31} Cable was convicted of aggravated burglary under R.C. 2911.11(A)(1),

which provides:

       (A) No person, by force, stealth, or deception, shall trespass in an occupied

       structure * * * when another person other than an accomplice of the offender

       is present, with purpose to commit in the structure * * * any criminal offense,

       if * * *:

                   (1) The offender inflicts, or attempts or threatens to inflict physical

                   harm on another.

He was also convicted of aggravated robbery under R.C. 2911.01(A)(3), which provides:

       (A) No person, in attempting or committing a theft offense, as defined in

       section 2913.01 of the Revised Code, or in fleeing immediately after the

       attempt or offense, shall * * *:

                   ***

                   (3) Inflict, or attempt to inflict, serious physical harm on another.

“Physical harm to persons” is statutorily defined as “any injury, illness, or other

physiological impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3). The
                                                                                          -14-


statutory definition of “serious physical harm to persons” includes “[a]ny physical harm

that involves some permanent disfigurement or that involves some temporary, serious

disfigurement” and “[a]ny physical harm that involves acute pain of such duration as to

result in substantial suffering or that involves any degree of prolonged or intractable pain.”

R.C. 2901.01(A)(5)(d) and (e).

       {¶ 32} The trial court here declined to merge the aggravated burglary and

aggravated robbery offenses because it found that separate conduct caused separate

harm. The court found that when Cable struck Ryan with the pistol, he satisfied

aggravated burglary’s physical-harm element, completing the offense; later, when Cable

sliced open Ryan’s chest with a box cutter, he satisfied aggravated robbery’s serious-

physical-harm element, completing that offense.

       {¶ 33} We agree with the trial court’s analysis and conclusion. A photograph in the

record establishes that the head wound that Cable gave Ryan by pistol whipping him

constituted “physical harm.” Further, photographs and testimony leave little doubt that the

chest wound that Cable gave Ryan with the box cutter—several inches long, down to the

bone—satisfied the definition of “serious physical harm.” Under the facts of this case,

then, aggravated burglary and aggravated robbery were not allied offenses of similar

import, because each offense involved separate conduct that caused separate,

identifiable harm.

       {¶ 34} The second assignment of error is overruled.

                       C. Sufficiency and weight of the evidence

       {¶ 35} The third assignment of error alleges:

       APPELLANT’S CONVICTIONS ARE NOT SUPPORTED BY SUFFICIENT
                                                                                         -15-


       EVIDENCE TO PROVE GUILT BEYOND A REASONABLE DOUBT AND

       ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 36} Cable’s evidentiary challenges here focus on the fact that the only evidence

linking him to the crimes was the result of the DNA test performed on the piece of duct

tape found at the scene.

       {¶ 37} “When reviewing the sufficiency of the evidence, an appellate court does

not ask whether the evidence should be believed but, rather, whether the evidence, ‘if

believed, would convince the average mind of the defendant’s guilt beyond a reasonable

doubt.’ ” State v. Pountney, 152 Ohio St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶ 19,

quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus. “The relevant inquiry is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” Jenks at paragraph two of the

syllabus.

       {¶ 38} “By contrast, to evaluate a manifest-weight claim, a court must review the

entire record, weigh the evidence and all reasonable inferences, and consider the

credibility of witnesses. The court must decide whether ‘ “the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed.” ’ ”

(Citation omitted.) State v. Beasley, 2018-Ohio-493, __N.E.3d__, ¶ 208, quoting State v.

McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 328, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 39} The victims, Ryan and Mackenzie, both testified at trial. They were

roommates and friends living together in a two-bedroom apartment on the first floor of a
                                                                                          -16-


building in Piqua. At the time, Ryan was selling heroin to earn money, and Mackenzie

was earning money as a prostitute. Around 3 a.m., on October 28, 2014, Ryan was in his

room alone, lying awake on his bed, and Mackenzie was in her room with a “client.”

Mackenzie testified that she heard a noise and then a white male wearing dark, baggy

clothing and a bandana covering all but his eyes and holding a gun entered her room and

demanded her and her client’s phones. Ryan testified that he heard two loud thuds and

then saw a white male burst into his room holding a pistol and wearing a hat, a long-

sleeved hoodie, and baggy clothing with a bandana on his face covering all but his eyes.

Duct tape covered the man’s hands. The man rushed over to Ryan and tried to hold him

down on the bed. Ryan struggled, and the man struck Ryan’s head with the pistol, causing

a bleeding laceration. The man angrily demanded Ryan’s phone, money, and drugs. As

the two struggled, the other assailant entered the room with Mackenzie and her client.

The man struggling with Ryan then pulled out a box cutter and started slashing at Ryan.

The third slash caught Ryan’s chest, slicing right through his left pectoral muscle. Ryan

testified that he looked down and saw “his skin opened up.” The two assailants then fled,

taking with them some drug capsules and Ryan’s phone.

       {¶ 40} Mackenzie identified in photographs duct tape left at the crime scene, blood,

and the injury to Ryan’s head. She testified that she knew Cable as an acquaintance who

dated one of her friends, but that she had no disputes with him and that neither he nor

her friend had ever been to the apartment. She also said that the man who cut Ryan did

not look like Cable. Ryan too identified in photographs pieces of duct tape left at the scene

after the suspects fled. He testified that the pieces of tape were not there before the break-

in and that he did not even have duct tape in his apartment. Ryan said that he did not
                                                                                          -17-


know Cable at all.

       {¶ 41} Officer Todd Voskuhl testified that, when he arrived at the scene, he saw

that the apartment door was splintered open and that the strike plate was on the ground.

He then saw blood all over the floor and walls of Ryan’s room and Ryan, shaken and

scared, holding a blood-soaked towel on his chest, like he was trying to hold his chest

muscle in place. Voskuhl photographed the cluttered scene. He did not recall seeing any

duct tape at the time, but he identified in his photographs the piece of duct tape that he

later found. After the victims left for the hospital with a medic and another police officer,

Officer Voskuhl left too, closing the door behind him. Less than an hour later, Voskuhl

learned from the other police officer that the victims recalled that the suspects were

wearing duct tape on their fingertips. Voskuhl returned to the scene, where he found a

bloodied piece of duct tape on the air mattress in Ryan’s room. He collected the duct tape

and took it back to the police department, where he photographed it, packaged it in a

cardboard box, sealed it in an evidence envelope, and placed it in a locked evidence

locker accessible only to the officer in charge of the evidence room. Officer Voskuhl

completed a lab submission sheet requesting that the Miami Valley Regional Crime Lab

test the duct tape for fingerprints and DNA. He said that the lab submission sheet was

later modified with a request for DNA testing of another piece of duct tape found at the

scene later that day by Detective Weber.

       {¶ 42} Officer Jeremy Weber testified that he was working as a detective at the

time and was assigned to this case. He arrived at the scene around 10:30 a.m., about

seven hours after the crime occurred. Weber found another piece of duct tape in Ryan’s

bedroom, on the floor next to the wall. Mackenzie told Weber that she and Ryan had
                                                                                        -18-


found it on the bed when they returned home from the hospital earlier that morning. Officer

Weber collected the piece of duct tape, packaged and sealed it in an evidence envelope,

and placed it in an evidence locker with a request for DNA testing. Weber testified that it

can take months to get results from the crime lab, so in this case, with no named suspects,

no new information, and no solid leads, the investigation lulled while awaiting the DNA

test results.

       {¶ 43} In the spring of the following year, Officer Weber reviewed the case to see

whether there was any new information. He contacted the crime lab and asked them to

test the inside of the duct tape (the sticky side) for touch DNA, and he asked the police

department’s property custodian to bring the duct tape back to the crime lab for this

additional testing. A few months later, in early August 2015, Weber was told by the crime

lab that there was a hit in the DNA database for Cable. Officer Weber interviewed Cable,

who denied committing the crime, denied knowing Ryan, denied entering the apartment,

and denied that his DNA could have been left in the apartment. In October, Weber

executed a search warrant on Cable for a sample of his DNA, which Weber obtained and

sent to the crime lab.

       {¶ 44} Latent fingerprint examiner Jennifer Yoak and forensic chemist and

serologist Amy Dallaire from the Miami Valley Regional Crime Lab also testified at trial.

Yoak testified that she had examined only the piece of duct tape found by Officer Voskuhl

(submission 1) for fingerprints and had found none. She said that she had never seen or

touched the piece of duct tape found by Officer Weber (submission 2). Dallaire then

testified. She talked about DNA generally—what it is, where it is found in the body, and

its use in criminal investigations. She also explained the chain-of-custody system in the
                                                                                        -19-


crime lab, the measures taken to ensure the security and tracking of evidence in their

custody, and the protocols used to prevent contamination. Dallaire testified that two

pieces of duct tape were submitted to the crime lab on November 4, 2014. She said that

she personally received submission 2. Dallaire saw red-brown staining on the non-sticky

side of submission 2 and presumptively tested the stains for blood. After determining that

it was blood, she extracted the DNA and concluded that it was Ryan’s. Dallaire said that

she did no further testing, and in January 2015, submission 2 was returned to the Piqua

Police Department.

      {¶ 45} According to Dallaire, several months later Detective Weber asked the

crime lab about testing the sticky side of submission 2 for touch DNA. The piece of duct

tape was resubmitted to the lab, and Dallaire looked for DNA on the sticky side. She found

a mixed DNA profile. Running the profiles through the lab’s DNA database, Dallaire

determined that Ryan was likely the contributor of the minor profile and that Cable was

likely the contributor of the major profile. She confirmed that it was Cable’s DNA by

comparing the major profile with the DNA profile in the sample taken from Cable under

the search warrant. They matched. She testified that, using the most conservative

estimate, the odds of someone else having the same DNA profile is about one in 19 billion.

      {¶ 46} On cross-examination, defense counsel asked Dallaire about the timeline

of events, the custody and control of the pieces of duct tape, and her decision not to test

the sticky side of the duct tape until the evidence was resubmitted by the Piqua Police

Department. No questions were asked about the DNA testing—the actual process of

conducting the individual steps of developing a DNA profile; the chemicals, machinery,

and techniques used to test DNA; or the statistical analysis and data used to determine
                                                                                         -20-


the DNA results and conclusions.

       {¶ 47} Finally, Cable’s father, Richard Cable, testified for him as an alibi witness.

Richard testified that he picked up his son at the Auglaize County Jail on the afternoon of

October 27, 2014. He said that they had dinner at Bob Evans, rented a few movies, and

watched them together at Richard’s Piqua home until 3:30 or 4:00 a.m. the next morning.

He said that Cable did not leave the house until about 11:30 a.m.

       {¶ 48} The primary issue at trial was whether Cable was the assailant who injured

Ryan. Both victims testified that they were not able to identify the perpetrators. Mackenzie

testified that she knew Cable and that the perpetrator who hurt Ryan did not look like him.

Also, Cable’s father provided an alibi, testifying that Cable was with him when the crime

was committed and for at least eight hours thereafter. The only evidence that Cable was

the assailant was the result of the DNA testing done on the sticky side of the piece of duct

tape recovered by Officer Weber from Ryan’s bedroom.

       {¶ 49} Cable says that witness testimony revealed numerous issues with the

collection, handling, and testing of the duct tape. He cites the failure to secure the crime

scene for seven hours before the DNA evidence was recovered, inconsistent testimony

concerning the total number of pieces of duct tape recovered from the crime scene, that

the duct tape from which the DNA was recovered did not have the original lab submission

sheet attached at the time of submission to the crime lab, that the duct tape from which

the DNA was recovered was transported between the Piqua Police Department property

room and the crime lab multiple times, and that a mixed DNA profile was recovered from

the duct tape. Cable argues that, given the issues that he raised concerning the handling

and testing of the duct tape, there was insufficient evidence to find, beyond a reasonable
                                                                                        -21-


doubt, that he was the perpetrator. And Cable argues that the jury clearly lost its way in

weighing these concerns about the State’s sole evidence linking him to the crime against

the testimony establishing his alibi.

       {¶ 50} That the victims could not identify Cable as an assailant is not surprising.

They testified that the heads and faces of both assailants were covered, leaving only their

eyes visible, and that the assailants wore baggy clothing and long-sleeved shirts. The

victims also said that the assailants’ hands and fingers were covered with duct tape.

Officer Weber’s testimony clarified that only two pieces of duct tape were found in Ryan’s

room. Ryan testified that the duct tape was not there before this crime occurred and that

he did not own or have any duct tape in his residence. DNA testing of the sticky side of

one duct tape piece conclusively established that the DNA found was Cable’s. No

evidence suggested a plausible alternative explanation for the presence of his DNA on

the duct tape found in Ryan’s room. The evidence showed that Cable and Ryan were

strangers and that, while Cable and Mackenzie knew each other, they had not recently

been together. Furthermore, both victims testified that Cable had not been in the

apartment previously.

       {¶ 51} Cable does not dispute that it was his DNA that was found on the piece of

duct tape. Rather, he focuses on alleged problems with the collection, handling, and

testing of the duct tape on which his DNA was found. But Cable’s allegations are all based

on speculation. The evidence did not support finding any problems that would result in

Cable’s DNA having been inadvertently transferred to the piece of duct tape. The

undisputed evidence showed that the piece of duct tape was properly collected, properly

sealed, and properly packaged, and no evidence suggested that the tape was
                                                                                               -22-


accidentally—or purposefully—contaminated. There was no evidence that the crime lab

already had Cable’s DNA.

       {¶ 52} There was conflicting evidence. The DNA test result placed Cable at the

scene of the crime, but his father’s testimony placed Cable at his father’s house. “The

credibility of the witnesses and the weight to be given to their testimony is a matter for the

trier of facts, the jury here, to resolve.” State v. White, 2d Dist. Montgomery No. 20324,

2005-Ohio-212, ¶ 65, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967).

We will not disturb this credibility determination “unless it is patently apparent that the trier

of facts lost its way in arriving at its verdict.” Id. at ¶ 67. Here, the jury did not lose its way

because it chose to believe the DNA test result and disbelieve Cable’s father’s testimony.

Compare id. at ¶ 69 (saying that “[t]he jury in this case did not los[e] its way simply

because it chose to believe the State’s witnesses and disbelieve Defendant, which i[t]

was entitled to do”).

       {¶ 53} We conclude that there was sufficient evidence in the record on which the

jury could rely in finding Cable guilty. Based on the DNA test results, any rational trier of

fact could have found that he was one of the assailants who broke into the victims’

apartment.     We also conclude that the convictions were not against the weight of the

evidence. The jury did not lose its way in rejecting Cable’s alibi. “This is not the

‘ “exceptional case in which the evidence weighs heavily against the conviction.” ’ ” State

v. Wilks, 2018-Ohio-1562, __N.E.3d__, ¶ 169, quoting State v. Thompkins, 78 Ohio St.3d

380, 387, 678 N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 175, 485 N.E.2d

717.

       {¶ 54} The third assignment of error is overruled.
                                                                                 -23-


                                     III. Conclusion

      {¶ 55} We have overruled each of the assignments of error presented. The trial

court’s judgment is therefore affirmed.

                                     .............



TUCKER, J., concurs.

DONOVAN, J., concurs in judgment only.


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Janna L. Parker
Charles M. Blue
Hon. Christopher Gee
