State v. Ayers

Decision Date19 November 2009
Docket NumberNo. 91847.,91847.
PartiesThe STATE of Ohio, Appellee, v. AYERS, Appellant.
CourtOhio Court of Appeals

William D. Mason, Cuyahoga County Prosecuting Attorney, and Mary McGrath, Assistant Prosecuting Attorney; and Nancy Hardin Rogers, Attorney General, for appellee.

Ohio Innocence Project, Mark A. Godsey, and David M. Laing, for appellant.


{¶ 1} Appellant, David Ayers, appeals from a Cuyahoga County Court of Common Pleas order denying his second application for deoxyribonucleic acid ("DNA") testing pursuant to R.C. 2953.71 et seq. Ayers presents two assignments of error challenging the trial court's finding that his application for DNA testing is barred by res judicata and further fails to meet the statutory requirements for acceptance. Finding merit to the assigned errors, we reverse the decision of the trial court.

{¶ 2} In 2000, a jury convicted Ayers of aggravated murder, aggravated robbery, and aggravated burglary of an elderly woman who lived in the same apartment building as Ayers. The evidence offered at trial showed that the victim had been beaten and was found in her apartment nude from the waist down. Although investigators found pubic hairs in the victim's mouth, they determined that there was no evidence of any sexual assault. The pubic hairs were of undetermined origin, with both the victim and Ayers being excluded as the source of the hair. The victim's body showed signs that she had tried to defend herself, but fingernail scrapings did not yield any biological evidence. On appeal, a highly divided panel of this court affirmed the convictions but remanded the case for resentencing in accordance with the statutes in effect at the time. State v. Ayers, Cuyahoga App. No. 79134, 2002-Ohio-4773, 2002 WL 31031675.

{¶ 3} On November 3, 2004, Ayers, proceeding pro se, filed his first application for DNA testing of pubic hair and biological material found on the victim. At trial, Ayers had vigorously challenged the state's identification of him as the perpetrator; he told the court that DNA testing of the biological material obtained from the victim would rule him out as the source of the DNA. The trial court denied the application, finding that Ayers failed to demonstrate that DNA testing would be "outcome determinative" as defined by R.C. 2953.71(L). This decision was reversed on appeal based upon the determination that the trial court's explanation for the denial of the application was statutorily insufficient and that the trial court failed to order the state to prepare and file a DNA evidence report as required by R.C. 2953.75. State v. Ayers, Cuyahoga App. No. 86006, 2005-Ohio-6972, 2005 WL 3549183.

{¶ 4} The state appealed that decision to the Supreme Court of Ohio, where it was reversed on the authority of State v. Buehler, 113 Ohio St.3d 114, 2007-Ohio-1246, 863 N.E.2d 124. See State v. Ayers, 113 Ohio St.3d 180, 2007-Ohio-1385, 863 N.E.2d 598. In Buehler, the Supreme Court addressed the statutory requirements for postconviction DNA testing and determined that "a trial court should exercise its discretion * * * as to whether it will first determine whether the eligible inmate has demonstrated that the DNA testing would be outcome determinative or whether it should order the prosecuting attorney to prepare and file a DNA evidence report." Id. at paragraph two of the syllabus.

{¶ 5} This court thereafter remanded the case to the trial court for further explanation of its reasons for denying Ayers's application. State v. Ayers, Cuyahoga App. No. 86006, 2007-Ohio-5939, 2007 WL 3286905. On remand, the trial court supported its denial of the application with an opinion addressing the items Ayers sought to have tested: blood, pubic hairs, and skin from under the victim's fingernails. The court noted that trial testimony from Curtiss Jones of the Cuyahoga County Coroner's Office Trace Evidence Department established that testing of the pubic hairs and blood collected from the victim as trace evidence showed that they could not be linked to Ayers. The court also found that there was no evidence that any biological material had been found under the victim's fingernails (only fibers were found under the fingernails), so it had no "parent sample" available for testing. This decision was affirmed on appeal. State v. Ayers, Cuyahoga App. No. 90907, 2008-Ohio-5475, 2008 WL 4681512, appeal not accepted, State v. Ayers, 121 Ohio St.3d 1440, 2009-Ohio-1638, 903 N.E.2d 1223.

{¶ 6} On February 27, 2008, while the second appeal of the denial of his application for DNA testing was pending, Ayers filed a second application for DNA testing of "fingernail scrapings, hairs, [and] pubic hairs." Challenging the state's evidence that the victim had not been sexually assaulted and that the police did not adequately investigate an alternate suspect, Ayers urged the court to grant his second application on grounds that advances in DNA testing technology would now reveal DNA when older, less-sophisticated DNA testing methods had detected none. He also noted that a change in the statutory definition of "outcome determinative" would leave no question that subsequent DNA testing of the items from the crime scene would prove him innocent of the crimes for which he was convicted.

{¶ 7} The trial court denied Ayers's application for DNA testing, finding that it was barred by res judicata. The court stated it had already held that DNA testing of the identical items would not be outcome determinative and further that a required parent sample from the fingernail scrapings did not exist.

{¶ 8} The court explained that the statutes require a "parent sample"—the biological material first obtained from a crime scene or victim—in order to grant an application for DNA testing. And because there had been a determination that "only fibers" were present in the fingernail scrapings, the court found that no parent sample existed for testing. The court further explained that the jury heard Curtiss Jones testify that no items, including blood and hair collected from the victim and crime scene, linked Ayers to the crimes. The court stated, "The jury that convicted Ayers, therefore, was aware that he was not the source of the hair and blood recovered from the victim and crime scene. * * * Ayers's application, therefore, fails to demonstrate DNA testing would be outcome determinative and cannot be accepted."

{¶ 9} Ayers challenges the trial court's decision, raising two errors for our review.

{¶ 10} "I. The trial court erred in holding that res judicata barred appellant's Senate Bill 262 application for DNA testing because the trial court's prior decision was denied under a different standard."

{¶ 11} "II. The trial court erred in ruling that testing would not be outcome determinative because testing would establish that someone else committed the murder for which appellant was convicted."


{¶ 12} The trial court "has discretion on a case-by-case basis" to accept or reject an eligible inmate's application for DNA testing. R.C. 2953.74(A). We therefore review the trial court's decision for abuse of discretion.

{¶ 13} An abuse of discretion means more than an error of law or judgment. An abuse of discretion implies that the trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140.

{¶ 14} Ayers bases his appeal on the fact that R.C. 2953.74, which provides the standard under which a trial court may accept an application for postconviction DNA testing, was revised in 2006 to provide a more lenient standard for granting DNA testing. He claims that under the more lenient standard, he is entitled to DNA testing. Additionally, Ayers argues that the trial court erred in applying the principles of res judicata to this case and that the failure to apply the standard of the amended statute to his subsequent petition denies him due process.


{¶ 15} Res judicata involves the related concepts of claim preclusion and issue preclusion, also known as collateral estoppel. Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 653 N.E.2d 226. As relevant here, "issue preclusion * * * serves to prevent relitigation of any fact or point that was determined by a court of competent jurisdiction in a previous action." O'Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.2d 803, ¶ 7. See also State ex rel. Davis v. Pub. Emps. Retirement Bd., 174 Ohio App.3d 135, 2007-Ohio-6594, 881 N.E.2d 294 (holding that "issue preclusion precludes relitigation of an issue that has been actually and necessarily litigated and determined in a prior action").

{¶ 16} The doctrine of res judicata is applicable to petitions for postconviction relief. State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104. Courts have held that when a defendant unsuccessfully raises a claim in a postconviction petition, res judicata precludes the defendant from raising the same claim in a subsequent postconviction petition. State v. Castro (1979), 67 Ohio App.2d 20, 21 O.O.3d 338, 425 N.E.2d 907; State v. Frye (Nov. 10, 1997), Franklin App. No. 97APA01-106, 1997 WL 710546. It is well established that the application of res judicata is mandatory, even if there is a subsequent change in the law by judicial decision. See State v. Szefcyk (1996), 77 Ohio St.3d 93, 95, 671 N.E.2d 233. It is less clear, however, whether principles of res judicata apply to statutory changes in the law.

{¶ 17} In Natl. Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 62-63, 558 N.E.2d 1178, the Ohio Supreme Court stated:

{¶ 18} "Because a strict application of res judicata might frustrate other objectives of the legal system, `a series of exceptions have evolved to accommodate what are deemed to be these more important policies. However, it is important...

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