State v. Lockhart

2022 Ohio 3192

Opinion

[Cite as State v. Lockhart, 2022-Ohio-3192.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Earle E. Wise, Jr., P. J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. 22 CAA 07 0056 JOHN C. LOCKHART, JR.

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 06 CR I 01 011

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 12, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA A. SCHIFFEL JOHN C. LOCKHART, JR. PROSECUTING ATTORNEY PRO SE CHRISTOPHER E. BALLARD 4403 St. Clair Avenue ASSISTANT PROSECUTOR Cleveland, Ohio 44103 145 North Union Street, 3rd Floor Delaware, Ohio 43015 Delaware County, Case No. 22 CAA 07 0056 2

Wise, John, J.

{¶1} Appellant John C. Lockhart, Jr. appeals his conviction on three counts of

Rape and three counts of Gross Sexual Imposition, entered in the Delaware County

Court of Common Pleas following a jury trial.

{¶2} Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} The relevant facts and procedural history are as follows:

{¶4} On January 13, 2006, Appellant John C. Lockhart, Jr. was indicted by the

Delaware County Grand Jury on three counts of rape and three counts of gross sexual

imposition.

{¶5} On July 20, 2006, the matter proceeded to jury trial, with Appellant being

convicted of one count of rape and three counts of gross sexual imposition.

{¶6} Following his sentencing, Appellant filed a direct appeal where this Court

affirmed his convictions. State v. Lockhart, 5th Dist. Delaware No. 06CAA100080, 2008-

Ohio-57, appeal not allowed, 118 Ohio St.3d 1434, 2008-Ohio-2595, 887 N.E.2d 1203.

{¶7} Appellant has filed numerous motions and appeals in this and other courts

challenging his conviction and sentence.

{¶8} On March 9, 2021, Appellant filed a "motion for new advanced technology

genetic genealogy testing (D.N.A.) of victim's panties" with the trial court.

{¶9} By Judgment Entry filed March 15, 2021, the trial court denied Appellant’s

motion, stating that Appellant must file the application form described in R.C. §2953.72,

and serve it upon the prosecuting attorney and the Ohio Attorney general for such an

application to be considered. Delaware County, Case No. 22 CAA 07 0056 3

{¶10} On March 25, 2021, Appellant filed the needed application form. Appellee

filed a response to Appellant's application on May 6, 2021.

{¶11} By Judgment Entry filed May 10, 2021, the trial court denied Appellant's

application.

{¶12} On May 24, 2021, Appellant filed a motion for reconsideration of the denial,

which the trial court denied on June 18, 2021.

{¶13} On July 12, 2021, Appellant then filed an Appeal of the trial court's denial.

This Court dismissed that appeal as untimely filed on November 3, 2021. State v.

Lockhart, 5th Dist. Delaware No. 21 CAA 07 0036, 2021-0hio-3912.

{¶14} On June 13, 2022, Appellant filed a "Motion to Release Evidence from the

Delaware City Police Department for New Genetic Genealogy Testing." This motion

raised essentially the same argument as that put forth by Appellant in his March, 2021,

application for DNA testing, with the addition of specifically requesting that the DNA

profile from the cutting from the victim's panties be compared with a standard from the

victim's mother.

{¶15} By Judgment Entry filed June 13, 2022, the trial court denied such said

motion, citing the reasoning set forth in its May 10, 2021, decision.

{¶16} Appellant now appeals.

ASSIGNMENT OF ERROR

{¶17} Appellant has failed to set forth an assignment of error as required by App.R.

16(A), but rather generally argues the trial court erred and abused its discretion in

denying his motion seeking the release of evidence so that he can conduct post-

conviction DNA testing of biological material. Delaware County, Case No. 22 CAA 07 0056 4

I.

{¶18} In his sole assignment of error, Appellant argues the trial court erred in

denying his application for postconviction DNA testing. We disagree.

Standard of Appellate Review Application for Post-conviction DNA testing.

{¶19} An application for DNA testing is governed by statute. See R.C. §2953.71

through 2953.81.

{¶20} In State v. Buehler, the Ohio Supreme Court held,

1. A careful, commonsense reading of R.C. 2953.74(C) in pari materia

with R.C. 2953.72 and 2953.73 and the remainder of R.C. 2953.74

illustrates the intent of the General Assembly to authorize the trial court to

exercise its discretion in how to proceed when ruling on an eligible inmate's

application for DNA testing.

2. When an eligible inmate files an application for DNA testing

pursuant to R.C. 2953.73, a trial court should exercise its discretion based

upon the facts and circumstances presented in the case 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 pursuant to

R.C. 2953.75.

113 Ohio St.3d 114, 2007-Ohio-1246, 863 N.E.2d 124, paragraphs 1 and 2 of the

syllabus. Delaware County, Case No. 22 CAA 07 0056 5

{¶21} R.C. §2953.72(A)(8) provides that when requesting DNA testing pursuant to

R.C. §2953.71 through 2953.81, an eligible offender must submit an acknowledgment

form stating that,

The court of common pleas has the sole discretion subject to an

appeal as described in this division to determine whether an offender is an

eligible offender and whether an eligible offender's application for DNA

testing satisfies the acceptance criteria described in division (A)(4) of this

section and whether the application should be accepted or rejected, that if

the court of common pleas rejects an eligible offender's application, the

offender may appeal the rejection, and that no determination otherwise

made by the court of common pleas in the exercise of its discretion

regarding the eligibility of an offender or regarding post-conviction DNA

testing under [sections 2953.71 through 2953.81 of the Revised Code] is

reviewable by or appealable to any court.

(Emphasis added; language severed as unconstitutional omitted, see Noling III,

149 Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d 141, at ¶ 60); State v. Noling, 153

Ohio St.3d 108, 2018-Ohio-795, 101 N.E.3d 435, ¶31. As the Supreme Court has

observed,

The text of R.C. 2953.72(A)(8) specifically notes that three of the trial

court's discretionary decisions regarding DNA testing are appealable: (1)

whether Noling is an eligible offender, (2) whether Noling's application

satisfied the acceptance criteria, and (3) whether Noling's application

should have been accepted or rejected. As a result, appellate courts do not Delaware County, Case No. 22 CAA 07 0056 6

have jurisdiction to hear Noling's claims that appeal discretionary decisions

made by the trial court that do not relate to one of these three specifically

listed exceptions. R.C. 2953.72 (A)(8) does not recognize any limits as to

an applicant's right to appeal a court's failure to fulfill a mandatory duty; in

fact, the division is entirely silent on that issue.

***

Examining the limits explained in R.C. 2953.72(A)(8) and (A)(9) in

conjunction, it is clear that an appellate court has jurisdiction over a claim

raised by an offender who requests DNA testing if the claim challenges any

of the three discretionary decisions specifically listed as appealable in R.C.

2953.72(A)(8) or if the claim is that the trial court failed to fulfill a mandatory

duty. Appellate courts do not have jurisdiction over claims that the trial court

made incorrect discretionary decisions—other than the three specifically

listed appealable issues—or claims asserting that the trial court performed

a mandatory duty but that the manner in which that duty was performed was

improper.

State v. Noling, 153 Ohio St.3d 108, 2018-Ohio-795, 101 N.E.3d 435, ¶32; ¶37.

{¶22} This Court reviews the trial court’s decision to accept or reject an eligible

offender’s application for postconviction DNA testing for abuse of discretion. State v.

Mason, 5th Dist. Ashland No. 2020CA00023, 2020-Ohio-6895. An abuse of discretion

exists where the reasons given by the court for its action are clearly untenable, legally

incorrect, or amount to a denial of justice, or where the judgment reaches an end or Delaware County, Case No. 22 CAA 07 0056 7

purpose not justified by reason and the evidence. State v. Firouzmandi, 5th Dist. Licking

No. 2006-CA-41, 2006-Ohio-5823, ¶54.

{¶23} The procedure for reviewing and accepting DNA-test applications is set forth

in R.C. 2953.71 through 2953.82. After an eligible inmate submits a DNA-test

application, R.C. 2953.73(D) states that the trial court “shall make the determination as

to whether the application should be accepted or rejected. * * * The court shall make the

determination in accordance with the criteria and procedures set forth in [R.C.] 2953.74

to 2953.81.” R.C. 2953.73(D) also requires the trial court to consider the application and

all corresponding and pertinent files, records, affidavits, documentary evidence, and all

materials regarding the proceedings against defendant, “unless the application and the

files and records show [that defendant] is not entitled to DNA testing, in which case the

application may be denied.” Id. Following its determination, the trial court shall enter a

judgment and order that accepts or rejects the application. R.C. 2953.73(D) mandates

that the trial court shall state the reasons for the acceptance or rejection, based on the

criteria and procedures of R.C. 2953.71 to 2953.81, within the judgment and order.

{¶24} “A court may accept an R.C. 2953.73 application for DNA testing only if it

determines that six conditions apply, two of which are central to this appeal.” State v.

Bonnell, 155 Ohio St.3d 176, 2018-Ohio-4069(2018), ¶19. First, the court must find that

“the identity of the person who committed the offense was at issue.” R.C. 2953.74 (C)(3).

And second,

{¶25} A trial court may accept a DNA application only if it determines that “if DNA

testing is conducted and an exclusion result is obtained, the exclusion result would be

outcome determinative.” R.C. 2953.74(C)(4). In its current form, the Revised Code Delaware County, Case No. 22 CAA 07 0056 8

defines “outcome determinative” to mean that, had the testing been presented at trial

and admitted into evidence, when considered alongside the other evidence in the case,

“there is a strong probability that no reasonable factfinder would have found the offender

guilty of [the] offense or, if the offender was sentenced to death relative to that 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.” R.C. 2953.71(L).

{¶26} Bonnell, ¶19.

{¶27} Initially we begin by noting that an application for DNA testing must be

submitted on a form prescribed by the attorney general, and it must be accompanied by

a signed acknowledgment of various items, which acknowledgment must also be on a

form prescribed by the attorney general. R.C. §2953.72(A). Appellant failed to fulfill either

requirement here. His application is not on the proper form. In addition, his application

was not accompanied by the signed acknowledgment. As such, the trial court was not

statutorily required to accept his application. State v. Hayden, 2nd Dist. Montgomery No.

23620, 2010-Ohio-3908, ¶ 11.

{¶28} Further, as found by the trial court, additional DNA testing of the victim’s

underwear in this case would not produce a more favorable outcome or produce an

outcome determinative result.

{¶29} Here, the results of the DNA testing of the victim’s underwear showing only

DNA of an unknown female and no male DNA was available and known to Appellant 15

years ago, prior to the trial in this matter. As such, this issue could have been raised on

direct appeal and not through an application for post-conviction DNA testing. Delaware County, Case No. 22 CAA 07 0056 9

{¶30} Appellant herein is requesting that the evidence from the underwear should

be compared to the DNA from the victim’s mother. As identity was not an issue at trial,

this Court fails to find how such testing would be outcome determinative.

{¶31} Here, even if the victim’s mother’s DNA were found on the evidence, that

evidence would not reasonably exclude Appellant as a perpetrator of the crime at issue.

Such evidence would only establish whether she had touched the victim's clothing and

had contact with the victim. It would not negate the overwhelming evidence of Appellant's

own involvement in the crime. In the words of R.C. §2953.71(L), the requested testing

would not create “a strong probability that no reasonable factfinder would have found

[Appellant] guilty of th[e] offense [.]”

{¶32} In the case sub judice, in order for the trial court to find that the DNA evidence

on the clothing would be outcome determinative, it would have to disregard all of the

other evidence provided at trial. See, State v. Mason, 5th Dist. Ashland No. CA-975,

1993 WL 360746 (Aug. 23, 1993). A review of the record establishes evidence of

Appellant’s guilt was substantial and therefore, the trial court did not abuse its discretion

when the court determined that new DNA testing would not be outcome determinative.

{¶33} Based upon the foregoing, we find Appellant has failed to demonstrate the

evidence that he sought to test could be outcome determinative [R.C. §2953.74 (B)(1);

(C)(4)]. Accordingly, we find no error in the trial court's denial of his application for

postconviction DNA testing. Delaware County, Case No. 22 CAA 07 0056 10

{¶34} Appellant’s assignment of error is overruled.

{¶35} For the forgoing reasons, the judgment of the Delaware County Court of

Common Pleas is affirmed.

By: Wise, John, J.

Wise, Earle, P. J., and

Gwin, J., concur.