[Cite as State v. Hayden, 2012-Ohio-6183.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24992
v. : T.C. NO. 90CR308
ROBERT O. HAYDEN : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 28th day of December , 2012.
MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
ROBERT O. HAYDEN, No. 226375, Chillicothe Correctional Institute, P. O. Box 5500, Chillicothe, Ohio 45601 Defendant-Appellant, pro se
FROELICH, J.
{¶ 1} Robert O. Hayden appeals from a judgment of the Montgomery 2
County Court of Common Pleas, which denied his Motion for Discovery of DNA Evidence
in Possession of Bureau of Criminal Investigation & Identification, his Motion to Proceed
Pursuant to [R.C.] 2953.74(E) * * * and Sub. Senate Bill 77, and his Motion to Confirm
Sentence. For the following reasons, the trial court’s judgment will be affirmed.
I.
{¶ 2} Hayden has filed numerous appeals with this court. A detailed summary of
the procedural history of his case will be helpful to our analysis of the issues now on appeal.
{¶ 3} In 1990, Hayden was convicted of rape with a prior aggravated felony
specification and was sentenced to a prison term of ten to twenty-five years.1 At trial, his
former girlfriend testified that Hayden repeatedly raped her in the morning hours of
December 31, 1989, after she refused to watch a pornographic movie with him; Hayden did
not testify. Samples from the vaginal swab and vaginal aspirate collected from the victim
were examined by the Miami Valley Regional Crime Lab; the results of the sperm fraction
of the vaginal aspirate were said to be inconclusive because the victim and Hayden had
similar blood types. Pubic hairs were also recovered from the victim. Due to Hayden’s
race, he was excluded as a source of the pubic hair, but it was possible that the hair belonged
to the victim, who was a different race.
{¶ 4} On direct appeal, we affirmed and commented that “the credibility of the
witnesses was the critical question before the trial court. The only direct evidence of the
offense of rape came from the victim; [the evidence] to the contrary was hearsay produced
1 Hayden had previously been convicted and sentenced on a charge of attempted rape. This Court affirmed that conviction and sentence. State v. Hayden, 2d Dist. Montgomery No. 9063, 1985 WL 7889 (Apr. 3, 1985). It appears that Hayden was on parole when he committed the instant offense of rape. 3
by those who at a later time heard [Hayden] simply deny the offense. The conflict of
evidence of the offense is created by a self serving statement made to others, containing
virtually no factual information.” State v. Hayden, 2d Dist. Montgomery No. 12220, 1991
WL 215065 (Sept. 27,1991).
{¶ 5} Hayden filed a petition for post-conviction relief related to the pubic hairs.
After the trial court denied the petition without a hearing, we reversed and remanded for a
hearing on that petition. State v. Hayden, 2d Dist. Montgomery No. 16497,1997 WL
752614 (Dec. 5, 1997). The hearing was postponed pending DNA testing.
{¶ 6} In May 1998, polymerase chain reaction (PCR) DNA testing was performed
on the vaginal aspirate (sperm fraction and non-sperm fraction) recovered from the victim,
the victim’s blood, and Hayden’s blood. Hayden was excluded as the source of the DNA
obtained from the non-sperm fraction of the vaginal aspirate, but he could not be excluded as
a source of DNA from the sperm fraction. The trial court subsequently denied Hayden’s
petition for post-conviction relief, reasoning that the DNA results were “inconclusive;
therefore even if Defendant’s trial counsel committed an error by not introducing the pubic
combings or having a DNA test conducted upon the fluids, this error cannot be said to have
created a reasonable probability that, ‘but for’ the errors, the result of the trial would have
been different.” We affirmed the denial of Hayden’s petition. State v. Hayden, 2d Dist.
Montgomery No. 17649,1999 WL 960968 (July 16,1999).
{¶ 7} In June 2001, Hayden filed a motion requesting relief from judgment under
Civ.R. 60(B) for fraud upon the court. The trial court denied the motion, which it treated as
a second post-conviction relief petition, stating that the petition could not be entertained 4
absent a showing that Hayden was “unavoidably prevented” from discovering the facts upon
which he relied. The trial court found that the evidence Hayden relied on (the pubic hair
combing) had been in Hayden’s possession for some time and that he had referred to the
pubic hair combing in his 1996 petition for post-conviction relief. Because none of the
evidence was new, the trial court dismissed the motion. No appeal was taken from that
decision.
{¶ 8} Three years later, in 2004, Hayden filed a “motion for rehearing,” asking the
court to reconvene the hearings that took place in 1998 and 1999 on his first post-conviction
petition. Hayden asserted that he was denied the opportunity to cross-examine witnesses
about the DNA testing that was conducted by Cellmark Diagnostics. The trial court denied
the request, finding that this was a matter that should have been raised during Hayden’s 1999
appeal. We affirmed. State v. Hayden, 2d Dist. Montgomery No. 20657, 2005-Ohio-4024.
{¶ 9} In September 2004, Hayden filed an application for DNA testing under R.C.
2953.71 to R.C. 2953.83, which was enacted in 2003. One week later, the trial court
rejected the application, noting that the 1998 tests were inconclusive and “introduction of the
DNA test would not create a reasonable probability that the result would be different.” This
Court affirmed that decision. State v. Hayden, 2d Dist. Montgomery 20747,
2005-Ohio-4025. We noted that Hayden was an eligible inmate under the statute, but
“[b]ecause the semen was previously tested and was inconclusive, the trial court had
discretion to accept or reject Hayden’s request for DNA testing of semen. Hayden does not
challenge the court’s decision on this point; instead he claims that the court should have
tested the pubic hairs, which were Caucasian and were not tested prior to trial.” (Emphasis 5
added.) Id. at ¶ 18. We agreed with the trial court that an exclusion result from the pubic
hairs would not be outcome determinative of Hayden’s guilt. We commented that “this was
not a situation where the victim was attacked by a stranger or where the identity of the rapist
was at issue.” Id. at ¶ 30.
{¶ 10} In March 2006, Hayden filed a fourth petition for post-conviction relief,
requesting a hearing on the basis that genetic testing conducted in 2005 in a paternity matter
contradicted the test results performed by Cellmark. We affirmed the trial court’s denial of
his petition, reasoning that Hayden did not demonstrate that he was unavoidably prevented
from discovering the facts contained in the 2005 genetic test. We stated: “The test simply
indicates that Hayden does not share the necessary paternal markers to be the biological
father of the subject child. It does not reveal when these results could have become
available, or, more importantly, how the results relate to the victim or the crime for which
Hayden was convicted.” State v. Hayden, 2d Dist. Montgomery No. 21764,
2007-Ohio-5572, ¶ 18
{¶ 11} In March 2008, Hayden filed another petition for post-conviction relief,
claiming that the MVRCL had withheld DNA evidence (the pubic hairs). ln September
2008, Hayden filed a second application for DNA testing. In a single decision, the trial
court denied both the petition and his application for DNA testing on the ground that the
issues had “been previously litigated and decided” and were barred by res judicata. This
Court affirmed. State v. Hayden, 2d Dist. Montgomery No. 23620, 2010-Ohio-3908. We
noted, initially, that Hayden’s request for DNA testing was not submitted on the appropriate
form. Id. at ¶ 11. We further stated, in part: [Cite as State v. Hayden, 2012-Ohio-6183.] An application for DNA testing is governed by statute. If DNA
testing has been granted and an “inclusion” result is obtained, the state will
not retest the DNA as the legislature has stated that it would create an
atmosphere in which endless testing could occur. R.C. 2953.72(A)(6). If
the court rejects a request for DNA testing due to the failure to meet the
proper criteria, the court will not accept or consider similar applications.
R.C. 2953.72(A)(7).
In this case, DNA testing was granted, and an inclusion result was
obtained in 1998. See R.C. 2953.71(I) (DNA testing that scientifically cannot
exclude the subject inmate is an inclusion result). Thus, the trial court did
not find the test results to require a new trial. Appellant already proceeded
through an appeal from that decision. As demonstrated above, appellant has
been litigating the issue of DNA testing for years in various manners. Most
notably, the trial court specifically rejected appellant’s request for DNA
testing in 2004 due to the failure to meet the proper criteria.
Additionally, this court has advised appellant that he cannot relitigate
the propriety of the denial of his application for retesting and that even an
exclusion result would not be outcome determinative under the facts of his
case. See State v. Hayden, 2d Dist. No. 21764, 2007-Ohio-5572, ¶ 18-19.
See, also, R.C. 2953.74(C)(3)-(5) (trial court cannot accept application for
DNA testing unless identity was an issue at trial, a defense theory was that an
exclusion result would be outcome determinative, and an exclusion result
would be outcome determinative). The propriety of the trial court’s past 7
decisions on this matter cannot be continually re-litigated.
{¶ 12} In September 2010, Hayden asked the trial court to order a comparison of
his DNA, which he contends is in the custody of the Bureau of Criminal lnvestigation &
ldentification, with the unknown DNA collected from the rape victim. The following
month, the trial court denied the motion on res judicata grounds. Hayden did not appeal this
{¶ 13} On April 15, 2011, Hayden filed a “Motion for Discovery of DNA
Evidence in Possession of Bureau of Criminal Investigation & Identification.” Hayden’s
motion reiterated the arguments that he made in his September 2010 motion, but relied upon
Skinner v. Switzer, U.S. , 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011).
The State filed a motion to dismiss, citing Hayden’s failure to use the necessary request
form, as required by R.C. 2953.72(A). Hayden subsequently filed a “Motion to Proceed
Pursuant to 2953.74(E) of the Ohio Revised Code and Sub. Senate Bill 771[,]” which
reiterated his request for a DNA comparison. Hayden additionally filed a “Motion to
Confirm Sentence,” in which he essentially complained that the records of the Chillicothe
Correctional lnstitution do not reflect his correct sentence.
{¶ 14} On December 12, 2011, the trial court denied the motion for discovery
from BCI on the grounds that the issue of DNA testing had “been previously litigated and
decided[,] * * * [and was barred by the doctrine of] res judicata.” The trial court further
noted that Hayden had not submitted his request in the proper statutory form as required by
R.C. 2953.72(A). ln the same decision, the trial court overruled the motion to proceed
under R.C. 2953.74(E) as moot. It further found that Hayden’s motion to confirm sentence 8
was also moot, as the termination entry issued by the trial court reflected the proper
conviction and sentence and the trial court had no authority or jurisdiction over the prison’s
records.
{¶ 15} Hayden appeals from the trial court’s December 12, 2011 decision.
II.
{¶ 16} Hayden’s sole assignment of error states:
THE TRIAL COURT VIOLATED DEFENDANT’S DUE PROCESS OF
LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION & ARTICLE I OF THE OHIO CONSTITUTION
WHEN IT DENIED HIM ACCESS OF BIOLOGICAL EVIDENCE IN THE
STATE’S CONTROL.
{¶ 17} As recognized by the Supreme Court, “[s]ince 1998, DNA testing has
advanced so far that ‘a DNA profile may now be developed from items which were
previously unsuccessfully typed or potentially not attempted due to the compromised or
limited nature of the sample,’ according to one of the expert witnesses. The PCR DNA
testing used in this case in 1998 has been largely replaced by two newer technologies – short
tandem repeat (or STR) testing and Y-chromosome STR (or Y-STR) testing.” State v.
Prade, 126 Ohio St.3d 27, 2010-Ohio-1842, 930 N.E.2d 287, ¶ 20.
{¶ 18} Prompted by advances in DNA testing, in 2003, the Ohio legislature
enacted Sub.S.B. 11, which established “a mechanism and procedures for the DNA testing
of certain inmates serving a prison term for a felony or under a sentence of death.” See
former R.C. 2953.71 to 2953.83. This statutory scheme was amended in 2004 and 2006, 9
and again in 2010. The motions at issue were filed in 2011.
{¶ 19} 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 denial of a defendant’s motion for further DNA testing for an abuse of
discretion. An abuse of discretion implies an arbitrary, unreasonable, unconscionable
attitude on the part of the trial court. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160,
840 N.E.2d 1042, ¶ 130. Abuse of discretion usually involves decisions that are
unreasonable rather than arbitrary or unconscionable. AAAA Enterprises, Inc. v. River
Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 601, 553 N.E.2d 597
(1990).
{¶ 20} Hayden appeals from the denial of three different motions. The first motion
– Hayden’s Motion for Discovery of DNA Evidence in Possession of Bureau of Criminal
Investigation & Identification – sought to have the DNA recovered from the victim
compared with Hayden’s own DNA, which is allegedly on file with BCI. The State
addresses Hayden’s motion as if he had sought new DNA testing of his and the unknown
DNA pursuant to the post-conviction DNA testing statute. The State argues that Hayden’s
request for DNA testing was honored in 1998, and he has already litigated, unsuccessfully,
whether an exclusion result would be outcome determinative. The trial court rejected
Hayden’s motion because he did not use the statutorily-required application form and
because his request was barred by res judicata.
{¶ 21} On its face, Hayden’s Motion for Discovery of DNA Evidence in
Possession of Bureau of Criminal Investigation & Identification was not brought under the 10
post-conviction DNA testing statute. Hayden argued that he was entitled to a DNA
comparison based on his right to due process and Skinner v. Switzer, U.S.
, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011). In Skinner, the United States Supreme Court
addressed whether a defendant seeking DNA testing of crime-scene evidence could bring
that claim as part of a civil rights action under 42 U.S.C. 1983 or, instead, whether the
defendant was limited to raising such a claim in federal court in a petition for a writ of
habeas corpus. The Supreme Court held that “a post-conviction claim for DNA testing is
properly pursued in a § 1983 action.” Skinner, 131 S.Ct. at 1293. However, the Court
emphasized that its recent decision in District Attorney’s Office for Third Judicial Dist. v.
Osborne, 557 U.S. , 129 S.Ct. 2308, 174 L.Ed.2d (2009), “severely limits the
federal action a state prisoner may bring from DNA testing. Osborne rejected the extension
of substantive due process to this area * * * and left slim room for the prisoner to show that
the governing state law denies him procedural due process.” Skinner at 1293.
{¶ 22} Contrary to Hayden’s assertion, Skinner does not provide new authority,
such that Hayden could file a new motion for a comparison of his DNA with the sperm
fraction of the vaginal aspirate. Rather, Skinner authorizes, under certain circumstances, the
filing of a § 1983 claim in federal court.
{¶ 23} In its decision on Hayden’s Motion for Discovery of DNA Evidence in
Possession of Bureau of Criminal Investigation & Identification, the trial court stated that
“an Application for DNA testing is required to be submitted on a form provided by the
attorney general, accompanied by a signed acknowledgment, also a form provided by the
attorney general, of different items. R.C. 2753.72(A). Defendant has not complied with 11
these requirements.” The trial court correctly held that it was not required to accept
Hayden’s request for DNA testing when it was not submitted on the statutorily-required
application form. On this basis, the trial court did not abuse its discretion in denying
Hayden’s latest motion for a comparison of his DNA at BCI with the unknown DNA
recovered from the victim.
{¶ 24} The trial court further ruled that Hayden’s motion was barred by the doctrine
of res judicata. It stated: “[T]he issues that Defendant raises have been previously litigated
and decided. This Defendant has been afforded all statutory and constitutional due process
given to him by law. Therefore, the issues are res judicata.”
{¶ 25} “The doctrine of res judicata encompasses the two related concepts of claim
preclusion, also known as * * * estoppel by judgment, and issue preclusion, also known as
collateral estoppel.” Grava v. Parkman Twp., 73 Ohio St.3d 379, 381, 653 N.E.2d 226
(1995). “Under the doctrine of res judicata, ‘[a] valid, final judgment rendered upon the
merits bars all subsequent actions based upon any claim arising out of the transaction or
occurrence that was the subject matter of the previous action.’” Kelm v. Kelm, 92 Ohio
St.3d 223, 227, 2001-Ohio-168, 749 N.E.2d 299, quoting Grava, supra, at syllabus.
Furthermore, “[r]es judicata operates to bar litigation of ‘all claims which were or might
have been litigated in a first lawsuit.’” (Emphasis omitted.) Grava, 73 Ohio St.3d at 382,
quoting Natl. Amusements, Inc. v. Springdale , 53 Ohio St.3d 60, 62, 558 N.E.2d 1178
{¶ 26} The State argues that the trial court properly rejected Hayden’s request,
when considered under the post-conviction DNA testing statutes, as barred by res judicata. 12
We begin with R.C. 2953.74(A), which now provides, in relevant part:
If an eligible offender submits an application for DNA testing under section
2953.73 of the Revised Code and a prior definitive DNA test has been
conducted regarding the same biological evidence that the offender seeks to
have tested, the court shall reject the offender's application. If an eligible
offender files an application for DNA testing and a prior inconclusive DNA
test has been conducted regarding the same biological evidence that the
offender seeks to have tested, the court shall review the application and has
the discretion, on a case-by-case basis, to either accept or reject the
application. The court may direct a testing authority to provide the court
with information that the court may use in determining whether prior DNA
test results were definitive or inconclusive and whether to accept or reject an
application in relation to which there were prior inconclusive DNA test
results.
A “prior definitive DNA test” is defined as “a DNA test that clearly establishes that
biological material from the perpetrator of the crime was recovered from the crime scene and
also clearly establishes whether or not the biological material is that of the eligible offender.”
R.C. 2953.71(U). “Inconclusive” or “inconclusive result” is defined as “a result of DNA
testing that is rendered when a scientifically appropriate and definitive DNA analysis or
result, or both, cannot be determined.” R.C. 2953.71(J).
{¶ 27} In this case, DNA testing was conducted in 1998, prior to the enactment of
the post-conviction DNA testing statutes. At that time, Cellmark reported that “[n]o 13
conclusion [could] be made regarding the vaginal swab,” although Hayden could not be
excluded as the source of the sperm fraction of the vaginal aspirate. The 1998 DNA test
was “inconclusive” for purposes of R.C. 2953.74(A) and did not constitute a prior
“definitive test.” Given the results of his 1998 DNA test, Hayden was statutorily eligible in
2011 to seek new DNA testing under the statute, provided that he met other statutory
criteria.
{¶ 28} The State asserts, citing R.C. 2953.72(A)(6), that the 1998 DNA test was an
inclusive result, which precluded additional testing. R.C. 2953.72(A) requires eligible
offenders to seek DNA testing using a form prescribed by the attorney general. The statute
requires that this form, which the offender must sign, include a number of
“acknowledgments.” One of the acknowledgments states:
That, if DNA testing is conducted with respect to an offender under sections
2953.71 to 2953.81 of the Revised Code, the state will not offer the offender a
retest if an inclusion result is achieved relative to the testing and that, if the
state were to offer a retest after an inclusion result, the policy would create an
atmosphere in which endless testing could occur and in which
post-conviction proceedings could be stalled for many years.
(Emphasis added.) R.C. 2953.72(A)(6).
{¶ 29} In other words, R.C. 2953.72(A)(6) requires the offender to agree, when
submitting his request for DNA testing under the statute, that if the application is granted
and the DNA testing produces an inclusion result, the offender is not entitled to a retest.
(An “inclusion result” occurs when the result “scientifically cannot exclude, or that holds 14
accountable, the subject offender as a contributor of biological material recovered from the
crime scene or victim in question.” R.C. 2953.71(A)(I).) R.C. 2953.72(A) does not govern
who is statutorily eligible to obtain a DNA test under the statute or under what
circumstances an application may be granted.
{¶ 30} Hayden’s 1998 DNA test produced an “inclusion result” (i.e., he could not
be excluded), as defined by the statute. However, that test was not conducted under R.C.
2953.71 to R.C. 2953.83, which did not yet exist in 1998. And, as stated above, the
post-conviction DNA testing statute was enacted for the purpose of allowing additional
DNA testing due to the advancements in DNA testing, which could provide actual, scientific
definitive results for many offenders. Accordingly, R.C. 2953.72(A)(6) does not preclude
Hayden’s request for DNA testing.
{¶ 31} We recognize that the State’s argument mirrors our analysis in State v.
Hayden, 2d Dist. Montgomery No. 23620, 2010-Ohio-3908. In general, the law of the case
doctrine requires us to follow prior opinions of our court in the same case. Nolan v. Nolan,
11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984) (the law of the case doctrine “provides that the
decision of a reviewing court in a case remains the law of that case on the legal questions
involved for all subsequent proceedings in the case at both the trial and reviewing levels.”).
The doctrine promotes consistency of results in a case, finality in litigation by settling the
issues, and preservation of the structure of superior and inferior courts as designed by the
Ohio Constitution. Id. However, “[t]he doctrine is considered to be a rule of practice
rather than a binding rule of substantive law and will not be applied so as to achieve unjust
results.” Id. [Cite as State v. Hayden, 2012-Ohio-6183.] {¶ 32} In this case, we decline to follow our analysis in our 2010 opinion. Our
prior opinion in Hayden’s case misapplied R.C. 2953.72(A)(6) and is inconsistent with our
more recent opinion in State v. Emerick, 2d Dist. Montgomery No. 24215, 2011-Ohio-5543,
which recognized that R.C. 2953.74 contemplated successive applications for DNA testing.
In Emerick, we interpreted the 2006 version of the post-conviction DNA testing statute and
discussed that res judicata should not be applied in a perfunctory manner, since R.C. 2953.74
permits, under certain circumstances, successive applications for DNA testing. We stated:
“If DNA testing has the proven ability to ‘exonerate[ ] wrongly
convicted people,’ we can perceive no viable argument that matters of
judicial economy should supersede the law’s never-ending quest to ensure
that no innocent person be convicted. The refinement of DNA testing has
shown that law and science are intersecting with increasing regularity. When
scientific advances give the courts the tools to ensure that the innocent can go
free, those advances in science will necessarily dictate changes in the law.”
[State v. Ayers, 185 Ohio App.3d 168, 2009-Ohio-6096, 923 N.E.2d 654, ¶
24 (citation omitted).]
Significantly, R.C. 2953.74 permits successive applications for DNA
testing by addressing circumstances when DNA testing may be ordered, even
though the same biological material has already been tested. In addition to
changing the definition of “outcome determinative,” the 2006 changes to the
post-conviction DNA testing statute increase the number of eligible
applicants, facilitate the granting of applications for DNA testing, and allow
unidentified DNA to be entered in the Combined DNA Index System 16
(CODIS) for matching with known felons. These changes support a
conclusion that this court should permit successive applications for DNA
testing, even when the biological materials addressed in the successive
application could have been raised in a prior application, provided that all the
statutory criteria are met.
State v. Emerick, 2d Dist. Montgomery No. 24215, 2011-Ohio-5543, ¶ 31-32.
{¶ 33} Even if the trial court had entertained Hayden’s request for DNA testing,
the court could grant Hayden’s request only if he satisfied the criteria set forth in R.C.
2953.74(C). Among those requirements, Hayden was required to demonstrate that “the
identity of the person who committed the offense was an issue” at trial and that the defense
theory at trial was such that “if DNA testing is conducted and an exclusion result is obtained,
the exclusion result will be outcome determinative.” Id. Under R.C. 2953.71(L),
“outcome determinative” means:
* * * that had the results of DNA testing of the subject offender been
presented at the trial of the subject offender requesting DNA testing and been
found relevant and admissible with respect to the felony offense for which the
offender is an eligible offender and is requesting the DNA testing, and had
those results been analyzed in the context of and upon consideration of all
available admissible evidence related to the offender’s case as described in
division (D) of section 2953.74 of the Revised Code, there is a strong
probability that no reasonable factfinder would have found the offender guilty
of that offense or, if the offender was sentenced to death relative to that 17
offense, would have found the offender guilty of the aggravating
circumstance or circumstances the offender was found guilty of committing
and that is or are the basis of that sentence of death.
{¶ 34} In 2005, we agreed with the trial court that an exclusion result from the
pubic hairs would not be outcome determinative of Hayden’s guilt, noting that “this was not
a situation where the victim was attacked by a stranger or where the identity of the rapist was
at issue.” Id. at ¶ 30. In 2010, we told Hayden that he “cannot relitigate the propriety of
the denial of his application for retesting and that even an exclusion result would not be
outcome determinative under the facts of his case.” However, in making this statement, we
applied the post-conviction relief statute only, did not analyze R.C. 2593.74, and relied on
State v. Hayden, 2d Dist. No. 21764, 2007-Ohio-5572, which addressed the results of
Hayden’s paternity test.
{¶ 35} Hayden’s first request for DNA testing of the semen under the
post-conviction DNA testing statute was filed in 2004, prior to substantive changes in the
statute. Significantly, prior to July 2006, “outcome determinative” was defined in the
post-conviction DNA testing statutes to mean: “[H]ad the results of DNA testing 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 * * *, no reasonable factfinder would have found the
inmate guilty of that offense * * *.” (Emphasis added.) Former R.C. 2953.71(L). This
definition applied to Hayden’s requests for DNA testing filed prior to March 2008. Our
2010 opinion applied the doctrine of res judicata based on opinions that applied a different 18
legal standard.
{¶ 36} Our more recent statements that an “exclusion result” would not be
“outcome determinative” and that identity was not at issue are also inconsistent with our
earlier opinions in Hayden’s case, in which we noted that the victim provided the only direct
testimony regarding what occurred during the rape, that Hayden did not testify, and the
testimony on his behalf amounted to a general denial. See State v. Hayden, 2d Dist.
Montgomery No. 12220, 1991 WL 215065 (Sept. 27,1991). Although Hayden did not
testify at his trial, the State’s evidence included the testimony of former Dayton Police
Detective David Lantz, Hayden’s former parole officer, Timothy Jones, and Hayden’s parole
officer at the time of the offense, Patrick Cooper, all of whom interviewed Hayden after the
rape. Hayden told all three that he had gone out drinking on the night of December 30 and
returned to the apartment he shared with the victim in the early morning hours, at which time
he went to sleep. Lantz, Jones, and Cooper each testified that Hayden emphatically denied
having any sexual contact or intercourse with the victim on December 31, 1989.
{¶ 37} In short, we find no prior ruling by this court that applied the facts at trial to
the current version of the post-conviction DNA testing statute. Considering that Hayden
disputed that he had any sexual contact with the victim, a trial court could reasonably
conclude that, for purposes of the post-conviction DNA testing statute, the identity of the
perpetrator remained at issue. Accordingly, when considering Hayden’s motion as one
brought under the post-conviction DNA testing statute, the trial court erred in denying
Hayden’s motion under the doctrine of res judicata, and nothing precludes Hayden from
renewing his request using the appropriate statutory form. The trial court would review any 19
such request using its sound discretion.
{¶ 38} Hayden’s second motion at issue asked the court to proceed under R.C.
2953.74(E) and Sub.S.B. 77 (the 2010 amendment to the post-conviction DNA testing
statute). R.C. 2953.74(E), which was added in Sub.S.B. 262, effective July 11, 2006,
provides:2
If an eligible offender submits an application for DNA testing under section
2953.73 3 of the Revised Code and the court accepts the application, the
eligible offender may request the court to order, or the court on its own
initiative may order, the bureau of criminal identification and investigation to
compare the results of DNA testing of biological material from an
unidentified person other than the offender that was obtained from the crime
scene or from a victim of the offense for which the offender has been
approved for DNA testing to the combined DNA index system maintained by
the federal bureau of investigation. * * *
(Footnote and emphasis added.)
{¶ 39} The trial court denied Hayden’s motion for a DNA comparison (i.e., did not
“accept the application”), and we have concluded that the trial court did not abuse its
discretion in doing so. The trial court did not err in denying as moot Hayden’s
accompanying request to compare the new test results to that of other known felons in
CODIS.
2 In 2010, “offender” was substituted for “inmate.” 3 R.C. 2953.73 describes the procedure for submitting an application. [Cite as State v. Hayden, 2012-Ohio-6183.] {¶ 40} Finally, Hayden appeals the denial of his motion to confirm his sentence.
However, his arguments on appeal are directed solely to the denial of his request for a DNA
comparison. Accordingly, Hayden has waived any claim that the trial court erred in denying
his motion to confirm his sentence.
{¶ 41} Hayden’s assignment of error is overruled.
III.
{¶ 42} For the reasons set forth above, the trial
court’s judgment will be affirmed. ..........
GRADY, P.J. concurs.
HALL, J., concurring in judgment:
{¶ 43} I agree that the defendant did not properly apply for new DNA testing
because he did not use the form required by R.C. 2953.72(A). On that basis, the trial court’s
judgment denying additional testing should be affirmed. I further note that this is not a new
problem. The defendant’s last application for DNA testing was not on a proper form. See
State v. Hayden, 2d Dist. Montgomery No. 23620, 2010-Ohio-3908, ¶ 11. Because we find
that the trial court correctly rejected the improperly filed application, the remainder of the
majority opinion is dicta. Nevertheless, I write separately because I disagree with several
aspects of that opinion.
{¶ 44} The majority opinion rejects the law-of-the-case doctrine and res judicata,
stating: “We decline to follow our analysis in our 2010 opinion.” Supra at ¶ 32. But the trial
court, and this court, have repeatedly held that even if additional testing excluded this very
defendant, he has not shown that the result would be different. Most recently, this court
explained: [Cite as State v. Hayden, 2012-Ohio-6183.] Additionally, this court has advised appellant that he cannot relitigate
the propriety of the denial of his application for retesting and that even an
exclusion result would not be outcome determinative under the facts of his
case. See State v. Hayden, 2d Dist. No. 21764, 2007-Ohio-5572, ¶18-19. See,
also, R.C. 2953.74(C)(3)-(5) (trial court cannot accept application for DNA
testing unless identity was an issue at trial, a defense theory was that an
exclusion result would be outcome determinative, and an exclusion result
would be outcome determinative). The propriety of the trial court's past
State v. Hayden, 2d Dist. Montgomery No. 23620, 2010-Ohio-3908, ¶ 14.
{¶ 45} I agree with the majority that res judicata does not always bar a DNA re-test.
But it does preclude Hayden from re-litigating the repeated conclusion that identity was not
the issue in this case, that an exclusionary test would not be outcome determinative and,
thus, that it would not result in a retrial.
{¶ 46} I also disagree with the majority’s conclusion that “[t]he 1998 DNA test was
‘inconclusive’ for purposes of R.C. 2953.74(A) and did not constitute a ‘definitive test.’”
Supra at ¶27. The defendant was convicted in 1990. This court affirmed in 1991. He
requested and obtained DNA testing in 1998. The result, under the current definition in R.C.
2953.71(I), was an “inclusion result” because the defendant was not excluded and was
indicated to be a contributor of biological material. The 1998 lab report explained: “If the
DNA originated from only two sources, the data are consistent with the DNA obtained from
the sperm fraction of the vaginal aspirate being a mixture of the types obtained from the
blood swatch labeled . . . [victim] and the types obtained from the blood swatch labeled 22
Robert Hayden.” Report of Laboratory Examination May 12, 1998.
{¶ 47} In 1998, the DNA testing commonly performed was referred to as HLA-DQ
alpha and Polymarker analysis. Here is a re-creation of the critical aspect of the report:
ALLELES DETECTED
SAMPLE DQA1 LDLR GYPA HBGG D7S8 GC
vaginal aspirate 4.1 AB A A AB A (non-sperm fraction) vaginal aspirate 1.1,4.1,4. 2/3 AB AB AC AB ABC (sperm fraction) [victim] 4.1 AB A A AB A Robert Hayden 1.1,4. 2/3 AB AB C A BC This sample contains DNA from at least 2 sources; the 1.2 HLA DQA1 type, if present may not be detected by this testing.
{¶ 48} The above testing examined the alleles present at six loci on the human
genome where the alleles can vary between individuals. Because DNA from one single
individual should only show either a homozygous genotype (two of the same alleles, here
listed as a single identifier) or heterozygous genotype (two different alleles) , observation of
three or more alleles at a loci in a sample indicates a mixture. The alleles detected for the
sperm fraction of the vaginal aspirate at loci DQA1 and GC show three alleles indicating this
sample was a mixture. This kind of result was common because frequently there was, and
sometimes is, an inability to completely separate a sperm fraction from a non-sperm fraction
of the evidenced DNA. But the important aspect of the test is that the defendant’s genetic
markers are present at each of the six loci examined. As one might expect, because this is a 23
mixture, so are the victim’s. The 1998 DNA report did not express the statistical significance
of the result, only that the data are consistent with a mixture of Hayden’s and the victim’s
DNA. But with the victim’s DNA markers excluded, the probability that the remaining DNA
is from an unknown, unidentified individual who is not the defendant is perhaps one in
thousands or more. In my view, this is not an “inconclusive result” under R.C. 2953.71(J).
{¶ 49} With appropriate explanation, the 1998 result likely constitutes a prior
“definitive DNA test” under R.C. 2953.71(U). I note this because if the defendant re-applies
for testing, on the correct form, the trial court “may direct a testing authority to provide the
court with information that the court may use in determining whether prior DNA test results
were definitive or inconclusive and whether to accept or reject an application in relation to
which there were prior inconclusive DNA test results.” R.C. 2953.74(A). Indeed, even
though the term “inconclusive” has crept into the record and prior decisions of the trial court
and this court, neither the term nor the concept appears in the 1998 report. In my view, the
1998 test soundly confirms that the DNA discovered includes the defendant and provides no
reason for further testing. Admittedly, the report states that “[n]o conclusion can be made
regarding the vaginal swab.” But that is because no DNA was detected on the swab.
Further testing of the vaginal swab was, obviously, discontinued. The DNA that was found
and tested from the vaginal aspirate was that of the victim and the defendant.
{¶ 50} I further believe the trial court’s denial of re-testing was correct because the
defendant does not meet the statutory criteria under R.C 2953.74(A). That provision
obligates a court to reject a re-test application if a prior definitive test has been conducted. I
believe that is the case here. But, assuming it is not, only if a prior inconclusive test has been
conducted can the court even consider a re-test application. Id. In considering the 24
application, “the court may accept the application only if all of the following apply:”
* * * (3) The court determines that, at the trial stage in the case * * * the
identity of the person who committed the offense was an issue.; (4) * * * that
one or more defense theories asserted by the offender at the trial stage * * *
was of such a nature that, if DNA testing is conducted and an exclusion is
obtained, the exclusion result will be outcome determinative; [and] (5) [t]he
court determines that, if DNA testing is conducted and an exclusion result is
obtained, the results will be outcome determinative regarding that offender.
R.C 2953.74(C).
{¶ 51} This court previously found that Hayden failed to meet these criteria. See
State v. Hayden, 2d Dist. Montgomery No. 23620, 2010-Ohio-3908, ¶14. My examination of
the quoted factors reveals that the defendant does not meet any of them. Each one
independently requires rejection of his re-test request.
{¶ 52} Finally, the majority indicates that identity of the offender was at issue
because Hayden denied having sex with the victim. But there is no admissible evidence of
such a denial. Hayden did not testify at his trial. Statements that he denied sexual conduct
with the victim were elicited from a police detective and two parole officers. This testimony
is unquestionably “hearsay produced by those who at a later time heard appellant simply
deny the offense.” State v. Hayden, 2d Dist. Montgomery No. 12220, 1991 WL 215065, *2
(Sept. 27, 1991); see also State v. Beeson, 2d Dist. Montgomery No. 19312,
2002-Ohio-4341, ¶56 (“Defendant’s out-of-court exculpatory statement that he sought to
introduce through the testimony of other witnesses was clearly offered to prove the truth of
the matter asserted * * * and constitutes hearsay.”). As such, it was inadmissible under 25
Evid.R. 802.
{¶ 53} It is undeniably tempting to use our judicial power to permit Hayden—or
any convicted defendant—to obtain new or additional DNA testing. DNA evidence can be a
powerful protector of the innocently imprisoned. At the same time, however, we cannot
ignore the requirements established by the General Assembly in R.C. 2953.74. Because
Hayden has not met those requirements, in my view the trial court correctly denied his
application for additional testing.
Copies mailed to:
Michele D. Phipps Robert O. Hayden Hon. Frances E. McGee