[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.
Copies sent to:
Janna L. Parker Charles M. Blue Hon. Christopher Gee