State v. Gavin

[Cite as State v. Gavin, 2022-Ohio-3027.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee, : Case No. 21CA3956
:
v. :
: DECISION AND
RONALD E. GAVIN, : JUDGMENT ENTRY
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:

Brian C. Howe and Mark Godsey, Ohio Innocence Project, Cincinnati, Ohio, for
Appellant.

Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Assistant
Scioto County Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
_____________________________________________________________

Smith, P.J.

{¶1} Appellant, Ronald Gavin, appeals the judgment entered by the Scioto

County Court of Common Pleas denying his postconviction application for DNA

testing as well as his motion to allow his defense expert access to physical

evidence in order to conduct independent testing. On appeal, Gavin raises two

assignments of error contending 1) that the trial court erred by denying his

application for DNA testing; and 2) that the trial court erred by denying his

unopposed motion for access to evidence for testing at his own expense. For the
Scioto App No. 21CA3956 2

reasons that follow, we find merit to both of Gavin’s assignments of error.

Accordingly, the judgment of the trial court is reversed and this matter is remanded

for further proceedings consistent with this opinion, with instructions as set forth

below.

FACTS

{¶2} Gavin is currently appealing from the trial court’s denial of his

application for postconviction DNA testing as well as his motion for defense

expert access to evidence for testing at Gavin’s own expense. This is the fifth time

this matter has been before this Court. Just recently, we considered Gavin’s fourth

appeal, which was from the trial court’s denial of his second motion for leave to

file a motion for a new trial. See State v. Gavin, 4th Dist. Scioto No. 21CA3941,

2022-Ohio-1287 (hereinafter “Gavin IV”). Similar to Gavin IV, the present matter

stems from Gavin’s underlying convictions in 2013 for trafficking in heroin,

possession of heroin, conspiracy to traffic in heroin, and tampering with evidence,

which were directly appealed to this Court in State v. Gavin, 4th Dist. Scioto No.

13CA3592, 2015-Ohio-2996 (hereinafter “Gavin I”).

{¶3} Gavin’s underlying convictions occurred as a result of his arrest after

detectives with the Scioto County Sheriff’s Office, acting on a tip provided by a

confidential informant named Manual Lofton, searched Gavin’s girlfriend’s

vehicle and found 97.4 grams of heroin. Gavin I at ¶ 12-14. Although we noted in
Scioto App No. 21CA3956 3

the first direct appeal that Gavin had made claims that either police had planted

drugs in the car, or that individuals by the names of Marcell Woods and Helen

Johnson had set him up, we affirmed his convictions for trafficking, possession and

conspiracy to traffic. Id. at ¶ 15, 37. However, we reversed Gavin’s conviction for

tampering with evidence. Id. at ¶ 41.

{¶4} Thereafter, in April of 2016, Gavin filed a petition for postconviction

relief. In support of his petition, Gavin “attached the affidavits of several persons

who claimed that Lofton and Woods had framed Gavin by planting the heroin in

the car that Gavin regularly drove.” State v. Gavin, 4th Dist. Scioto No.

16CA3757, 2017-Ohio-134, ¶ 5 (hereinafter “Gavin II”). Further, in his petition

for postconviction relief, Gavin claimed that he “had informed his trial attorney

about his potential witnesses, but his attorney failed to call them to testify on his

behalf at trial.” Id. The trial court ultimately denied Gavin’s petition, which led to

a second appeal to this Court. On January 6, 2017, this Court affirmed the

judgment of the trial court denying the petition. Gavin II.

{¶5} Thereafter, on May 15, 2017, Gavin filed a pro se motion for leave to

file a motion for new trial, which was also denied by the trial court and appealed to

this Court. State v. Gavin, 2018-Ohio-536, 105 N.E.3d 373 (4th Dist. 2018)

(hereinafter “Gavin III”). The underlying factual history of this case was set forth

in both Gavin III and Gavin IV and we incorporate it here, verbatim, as follows:
Scioto App No. 21CA3956 4

The Scioto County Grand Jury returned an indictment charging
Ronald E. Gavin and an accomplice with several drug-related
charges. The case proceeded to a jury trial where several
witnesses, including Manual Lofton and Marcell Woods,
testified that Gavin sold heroin to people on numerous occasions
during the summer of 2013. Gavin obtained the heroin from
Chicago sources, including his cousin.

The jury convicted Gavin of multiple heroin-related offenses and
in November 2013, the trial court sentenced him to prison. In
[Gavin I] we reversed his conviction for tampering with evidence
and remanded the cause to the trial court to vacate that conviction
and sentence. But we affirmed his remaining convictions and
rejected his contention that he had received ineffective assistance
of counsel. On remand the trial court complied with our
mandate.

In April 2016, Gavin filed a petition for postconviction relief
claiming that he was denied the effective assistance of trial
counsel and that his convictions were obtained through fraud on
the court. He attached the affidavits of several persons who
collectively claimed that: (1) Lofton and Woods had framed
Gavin by planting the heroin in the car that Gavin regularly
drove; (2) Gavin had informed his trial attorney about his
potential witnesses; and (3) his attorney failed to call them to
testify on his behalf at trial. But Gavin failed to indicate how he
was unavoidably prevented from discovering any of this
purported newly discovered evidence. The affidavits of the
potential witnesses were executed in July, August, and October
2015, and in March and April 2016. In May 2016, the trial court
denied the petition for postconviction relief without conducting
an evidentiary hearing.

On appeal we held that Gavin did not establish that the trial court
had jurisdiction to address the merits of his untimely petition.
We reached this conclusion because he admitted that some of his
evidence “may have been available to [him] at the time of trial,”
and he did “not explain how either he or his appellate counsel
were unavoidably prevented from having access to the evidence
attached to his petition at the time he filed his direct appeal or
Scioto App No. 21CA3956 5

when he could have filed a timely petition for postconviction
relief.” [Gavin II at ¶ 14-15]. We modified the judgment of the
trial court to reflect the dismissal of the petition and affirmed the
judgment of the trial court as modified. Id. at ¶ 16-17.

In May 2017, Gavin sought leave to file a motion for a new trial
based primarily on newly discovered evidence; he attached a
proposed motion for new trial and a request for an evidentiary
hearing. He also attached four of the affidavits, executed in July,
August, and October 2015, and in April 2016, that he had filed
in support of his unsuccessful petition for postconviction relief.
The trial court denied the motion without an evidentiary hearing
after concluding that Gavin had not established how he was
unavoidably delayed from filing his motion, his motion was
untimely, and he had not submitted newly discovered evidence.
Gavin has appealed the denial of his motion for leave.

(Emphasis deleted.) Gavin IV at ¶ 3, quoting Gavin III at ¶ 4-9.

{¶6} In his appeal from the trial court’s denial of his first pro se motion for

leave to file a motion for a new trial, Gavin argued that the trial court erred by

denying him an evidentiary hearing on his motion for leave. Id. at ¶ 10. However,

this Court rejected Gavin’s arguments and affirmed the trial court’s judgment

denying the motion for leave. Id. at ¶ 19. Then, nearly three years later and with

the assistance of the University of Cincinnati College of Law’s Ohio Innocence

Project, Gavin filed a second motion for leave to file a motion for new trial on

November 12, 2020. In his motion for leave, Gavin referenced the prior pro se

motion for leave that was denied, as well as the basis of that motion, which

included affidavits from four individuals alleging that Gavin had been framed by

Manual Lofton and Marcell Woods. However, in his second motion for leave
Scioto App No. 21CA3956 6

Gavin informed the court that a new witness named Ryan Starks had “come

forward with a firsthand account linking the heroin to the State’s main witness,

Manual Lofton.” Gavin claimed that Starks’ affidavit provided “a detailed account

of how he, Manual Lofton, and Marcell Woods packaged and planted the heroin in

Gavin’s girlfriend’s vehicle, as part of a scheme to reduce Lofton’s own pending

sentence on drug trafficking charges.” Although Gavin’s second motion for leave

to file a motion for new trial referenced the four individuals whose affidavits were

attached in support of his prior petition for postconviction relief and prior motion

for leave to file a motion for a new trial, Gavin’s second motion for leave was

primarily based upon the statements of the newly identified witness, Ryan Starks,

who did not come forward until 2019.

{¶7} As set forth in Gavin IV:

Gavin’s motion for leave included the affidavit of Starks, which
was executed on May 6, 2019, and which essentially stated that
Starks sold Lofton the heroin at issue and showed Lofton how to
“cut” the heroin with lactose, compress it and shape it. The
affidavit further stated that Starks and Lofton thereafter picked
up Marcell Woods, and that Lofton gave Woods $3000.00,
handed him the packaged heroin, and told him to “make sure he
put it down the right way.” Starks’ affidavit further stated that
Woods got out of the car and put the heroin inside the door of a
dark colored Camaro, which Starks believed, at the time,
belonged to Woods. The affidavit further stated that later that
night Lofton informed Starks that Gavin had been arrested, that
Lofton had paid Woods $3000.00 to put the drugs inside the car
to set up Gavin, and that Lofton had threatened to tell police that
Starks was involved if Starks said anything to anyone about it.
Finally, Starks averred in his affidavit that while in prison, he
Scioto App No. 21CA3956 7

saw Gavin for the first time six years “after he was framed.” It
was at this time that Starks provided this new information to
Gavin, explaining that he couldn’t resist telling him because his
conscience had been bothering him over the years that an
innocent man was in prison for a crime he didn’t commit.

Gavin IV at ¶ 6.

{¶8} The State opposed Gavin’s second motion for leave to file a motion for

new trial, arguing that “defendant ha[d] not filed his motion within the timeliness

of Criminal Rule 33, and ha[d] not shown how he was unavoidably delayed.”

(Emphasis deleted.) The trial court ultimately denied Gavin’s motion for leave,

reasoning that the motion had been untimely filed.

{¶9} Gavin thereafter appealed the trial court’s denial of his second motion

for leave to file a motion for new trial. In his fourth appeal to this Court, we found

merit to the arguments raised and ultimately reversed the trial court’s denial of his

motion for leave to file a motion for new trial. Gavin IV, supra, at ¶ 32 (reversing

the trial court’s denial of the motion for leave as being untimely filed and

remanding the matter for determination on the merits and further determination

regarding whether a hearing is required). Thus, at the present time, the question of

whether Gavin should be granted leave to file a motion for a new trial remains

pending with the trial court on remand.

{¶10} However, while Gavin was litigating his right to file a motion for a

new trial, he continued to litigate other issues in the trial court as well. For
Scioto App No. 21CA3956 8

instance, Gavin filed a public records request on October 11, 2016, seeking to

determine the manner and method used by BCI to determine that the substance

discovered in Thompson’s car was heroin. He filed a motion for independent

testing the same date, seeking a specimen of the substance in order to have it tested

by an independent lab. The trial court denied his request and he appealed that

ruling. This Court administratively dismissed the appeal on June 5, 2017, as being

untimely filed.

{¶11} Thereafter, Gavin filed a renewed motion for independent testing and

fingerprint analysis. The renewed motion appears to have stemmed from the

discovery, through the public records request, that the “clear bag” containing the

heroin at issue had been submitted to BCI along with the heroin when it was

originally tested back in 2013. In his renewed motion, Gavin not only sought

independent testing of the substance that BCI determined to be heroin, but he also

sought fingerprint analysis “of the package of the alleged drug substance.” The

State opposed the renewed motion for independent testing and fingerprint analysis

and the trial court denied the renewed motion on August 4, 2017.1

1
In Gavin III, which was issued on February 2, 2018, and which primarily dealt with the denial of Gavin’s first pro
se motion for leave to file a motion for a new trial, we noted that although Gavin also argued the trial court erred in
denying his renewed motion for independent testing and fingerprint analysis, he did not include that judgment in his
notice of appeal or file a separate notice of appeal from that judgment. Gavin III at ¶ 2. Thus, we determined the
argument was not properly before us and that we could not address the merits. Id.
Scioto App No. 21CA3956 9

{¶12} Subsequently, on November 19, 2020, with the assistance of the Ohio

Innocence Project, Gavin filed an application for DNA testing as well as a motion

to allow his defense expert access to evidence for testing at defendant’s expense.

In his application for DNA testing and memorandum in support, Gavin argued that

advances in DNA testing since 2013 now provided for “touch DNA” on items from

crime scenes and that such testing would be able to definitively determine whether

either Gavin or Lofton handled the bag of heroin. Gavin further argued that he was

an eligible offender under Ohio’s DNA testing law, that he met all of the required

factors for obtaining testing, and that the testing results would be outcome

determinative. The State opposed the application for DNA testing, conceding that

Gavin was an eligible offender, but arguing that he failed to meet the additional

required factors to obtain testing. The State further argued that DNA testing would

not be outcome determinative. Gavin filed a reply brief countering the State’s

arguments regarding the application for DNA testing and noting that the State

offered no argument as to why testing at his own expense should not be allowed.

Gavin’s reply brief also argued that the State did not oppose the separately-filed

motion for defense expert access to evidence for testing at defendant’s expense.

{¶13} On June 1, 2021, the trial court issued an order denying Gavin’s

application and his motion. The trial court stated in its order that no hearing was

required, that Gavin was an eligible offender for purposes of DNA testing, but that
Scioto App No. 21CA3956 10

because the testing would not be outcome determinative, Gavin did not meet the

statutory criteria for testing. Thus, the trial court denied both the application and

the motion. It is from this order that Gavin now brings his timely appeal, setting

forth two assignments of error for our review.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT ERRED BY DENYING
APPELLANT’S APPLICATION FOR DNA TESTING.

II. THE TRIAL COURT ERRED BY DENYING
APPELLANT’S UNOPPOSED MOTION FOR ACCESS
TO EVIDENCE FOR TESTING AT DEFENDANT’S
EXPENSE.

ASSIGNMENT OF ERROR I

{¶14} In his first assignment of error, Gavin contends that the trial court

erred by denying his application for postconviction DNA testing. He argues that

the trial court erroneously based its outcome determinative analysis solely on

evidence as it existed at the time of the original trial, rather than “all available

admissible evidence” as required by R.C. 2953.74(D). He also argues that modern

DNA testing can conclusively prove his guilt or innocence and that the trial court

erred by finding that testing would not be outcome determinative. He further

argues that cases relied upon by the trial court in reaching its decision were

inapplicable to the facts of his case and that the trial court did not provide an

adequate explanation for the denial of his application. The State responds by
Scioto App No. 21CA3956 11

arguing that DNA testing would not be outcome determinative in this matter and

that in cases where DNA evidence was not the primary focus of the State’s

evidence or theory at trial, appellate courts have upheld denials of applications for

DNA testing.

Postconviction DNA testing

{¶15} Postconviction DNA testing is governed by R.C. 2953.71 through

2953.84. An “eligible offender” for purposes of R.C. 2953.71 et seq. is defined as

“an offender who is eligible under division (C) of section 2953.72 of the Revised

Code to request DNA testing to be conducted under sections 2953.71 to 2953.81 of

the Revised Code.” R.C. 2953.71(F). R.C. 2953.72, which governs applications

for postconviction testing, provides in section (C) as follows:

(C)(1) An offender is eligible to request DNA testing to be
conducted under sections 2953.71 to 2953.81 of the Revised
Code only if all of the following apply:

(a) The offense for which the offender claims to be an eligible
offender is a felony, and the offender was convicted by a judge
or jury of that offense.

(b) One of the following applies:

(i) The offender was sentenced to a prison term or sentence of
death for the felony described in division (C)(1)(a) of this
section, and the offender is in prison serving that prison term or
under that sentence of death, has been paroled or is on probation
regarding that felony, is under post-release control regarding that
felony, or has been released from that prison term and is under a
community control sanction regarding that felony.
Scioto App No. 21CA3956 12

(ii) The offender was not sentenced to a prison term or sentence
of death for the felony described in division (C)(1)(a) of this
section, but was sentenced to a community control sanction for
that felony and is under that community control sanction.

(iii) The felony described in division (C)(1)(a) of this section was
a sexually oriented offense or child-victim oriented offense, and
the offender has a duty to comply with sections 2950.04,
2950.041, 2950.05, and 2950.06 of the Revised Code relative to
that felony.

(2) An offender is not an eligible offender under division (C)(1)
of this section regarding any offense to which the offender
pleaded guilty or no contest.

(3) An offender is not an eligible offender under division (C)(1)
of this section regarding any offense if the offender dies prior to
submitting an application for DNA testing related to that offense
under section 2953.73 of the Revised Code.

{¶16} Here, the trial court found that Gavin was an eligible offender and the

State concedes on appeal that Gavin is an eligible offender.

{¶17} R.C. 2953.73, which governs submissions of applications for

postconviction testing, provides in section (A) as follows:

(A) An eligible offender who wishes to request DNA testing to
be conducted under sections 2953.71 to 2953.81 of the Revised
Code shall submit an application for DNA testing on a form
prescribed by the attorney general for this purpose and shall
submit the form to the court of common pleas that sentenced the
offender for the offense for which the offender is an eligible
offender and is requesting DNA testing.

R.C. 2953.73 further provides in section (D) as follows:

(D) If an eligible offender submits an application for DNA
testing under division (A) of this section, the court shall make the
Scioto App No. 21CA3956 13

determination as to whether the application should be accepted
or rejected. The court shall expedite its review of the application.
The court shall make the determination in accordance with the
criteria and procedures set forth in sections 2953.74 to 2953.81
of the Revised Code and, in making the determination, shall
consider the application, the supporting affidavits, and the
documentary evidence and, in addition to those materials, shall
consider all the files and records pertaining to the proceedings
against the applicant, including, but not limited to, the
indictment, the court's journal entries, the journalized records of
the clerk of the court, and the court reporter's transcript and all
responses to the application filed under division (C) of this
section by a prosecuting attorney or the attorney general, unless
the application and the files and records show the applicant is not
entitled to DNA testing, in which case the application may be
denied. The court is not required to conduct an evidentiary
hearing in conducting its review of, and in making its
determination as to whether to accept or reject, the application.
Upon making its determination, the court shall enter a judgment
and order that either accepts or rejects the application and that
includes within the judgment and order the reasons for the
acceptance or rejection as applied to the criteria and procedures
set forth in sections 2953.71 to 2953.81 of the Revised Code. The
court shall send a copy of the judgment and order to the eligible
offender who filed it, the prosecuting attorney, and the attorney
general.

(Emphasis added). R.C. 2953.73(D)

{¶18} Thus, although the trial court is not required to hold an evidentiary

hearing in making its determination whether to accept or reject an application, its

judgment and order either accepting or rejecting the application must contain

reasons for either the acceptance or rejection of the application.
Scioto App No. 21CA3956 14

{¶19} R.C. 2953.74, which governs “prior tests,” provides in section (B) that

a court may accept an eligible offender’s application for postconviction DNA

testing if one of the following applies:

(1) The offender did not have a DNA test taken at the trial stage
in the case in which the offender was convicted of the offense for
which the offender is an eligible offender and is requesting the
DNA testing regarding the same biological evidence that the
offender seeks to have tested, the offender shows that DNA
exclusion when analyzed in the context of and upon
consideration of all available admissible evidence related to the
subject offender's case as described in division (D) of this section
would have been outcome determinative at that trial stage in that
case, and, at the time of the trial stage in that case, DNA testing
was not generally accepted, the results of DNA testing were not
generally admissible in evidence, or DNA testing was not yet
available.

(2) The offender had a DNA test taken at the trial stage in the
case in which the offender was convicted of the offense for which
the offender is an eligible offender and is requesting the DNA
testing regarding the same biological evidence that the offender
seeks to have tested, the test was not a prior definitive DNA test
that is subject to division (A) of this section, and the offender
shows that DNA exclusion when analyzed in the context of and
upon consideration of all available admissible evidence related
to the subject offender's case as described in division (D) of this
section would have been outcome determinative at the trial stage
in that case.

(Emphasis added). R.C. 2953.74(B)(1)-(2).

{¶20} Here, R.C. 2953.74(B)(2) would be inapplicable because Gavin did

not have a DNA test taken at the trial stage. Thus, Gavin would have to meet the

requirements contained in R.C. 2953.74(B)(1) in order for the trial court to accept
Scioto App No. 21CA3956 15

his application. However, as will be discussed more fully below, the trial court did

not reach the question of whether Gavin met the requirements of R.C.

2953.74(B)(1) in rendering its decision.

{¶21} Additionally, if the requirements of either R.C. 2953.74(B)(1) or

(B)(2) are met, a court may only accept an eligible offender’s application for

postconviction DNA testing if all of the following six requirements are satisfied:

(1) The court determines pursuant to section 2953.75 of the
Revised Code that biological material was collected from the
crime scene or the victim of the offense for which the offender is
an eligible offender and is requesting the DNA testing and that
the parent sample of that biological material against which a
sample from the offender can be compared still exists at that
point in time.

(2) The testing authority determines all of the following pursuant
to section 2953.76 of the Revised Code regarding the parent
sample of the biological material described in division (C)(1) of
this section:

(a) The parent sample of the biological material so collected
contains scientifically sufficient material to extract a test sample.

(b) The parent sample of the biological material so collected is
not so minute or fragile as to risk destruction of the parent sample
by the extraction described in division (C)(2)(a) of this section;
provided that the court may determine in its discretion, on a case-
by-case basis, that, even if the parent sample of the biological
material so collected is so minute or fragile as to risk destruction
of the parent sample by the extraction, the application should not
be rejected solely on the basis of that risk.

(c) The parent sample of the biological material so collected has
not degraded or been contaminated to the extent that it has
become scientifically unsuitable for testing, and the parent
Scioto App No. 21CA3956 16

sample otherwise has been preserved, and remains, in a condition
that is scientifically suitable for testing.

(3) The court determines that, at the trial stage in the case in
which the offender was convicted of the offense for which the
offender is an eligible offender and is requesting the DNA
testing, the identity of the person who committed the offense was
an issue.

(4) The court determines that one or more of the defense theories
asserted by the offender at the trial stage in the case described in
division (C)(3) of this section or in a retrial of that case in a court
of this state was of such a nature that, if DNA testing is conducted
and an exclusion result is obtained, the exclusion result will be
outcome determinative.

(5) The court determines that, if DNA testing is conducted and
an exclusion result is obtained, the results of the testing will be
outcome determinative regarding that offender.

(6) The court determines pursuant to section 2953.76 of the
Revised Code from the chain of custody of the parent sample of
the biological material to be tested and of any test sample
extracted from the parent sample, and from the totality of
circumstances involved, that the parent sample and the extracted
test sample are the same sample as collected and that there is no
reason to believe that they have been out of state custody or have
been tampered with or contaminated since they were collected.

(Emphasis added). R.C. 2953.74(C)(1)-(6)

{¶22} The phrase “outcome determinative” as contained in R.C.

2953.74(B)(1)-(2) and (C)(4)-(5) is defined in R.C. 2953.71(L) as follows:

(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
Scioto App No. 21CA3956 17

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 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.

{¶23} R.C. 2953.74(D) further provides that “the court, in determining

whether the ‘outcome determinative’ criterion described in divisions (B)(1) and (2)

of this section has been satisfied, shall consider all available admissible evidence

related to the subject offender’s case.”

{¶24} Finally, R.C. 2953.75, which governs “comparison samples,”

provides in section (A) as follows:

If an eligible offender submits an application for DNA testing
under section 2953.73 of the Revised Code, the court shall
require the prosecuting attorney to use reasonable diligence to
determine whether biological material was collected from the
crime scene or victim of the offense for which the offender is an
eligible offender and is requesting the DNA testing against which
a sample from the offender can be compared and whether the
parent sample of that biological material still exists at that point
in time. * * *

{¶25} Importantly, however, the Supreme Court of Ohio has held that:

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
Scioto App No. 21CA3956 18

outcome-determinative, or whether it should order the
prosecuting attorney to prepare and file a DNA evidence report
pursuant to R.C. 2953.75.

State v. Buehler, 113 Ohio St.3d 114, 2007-Ohio-1246, 863 N.E.2d 124, paragraph

two of the syllabus.

{¶26} As explained in State v. Bunch, if a trial court properly exercises its

discretion to conclude that a DNA test would not be outcome determinative as

required by R.C. 2953.74(B)(1)-(2) and (C)(4)-(C)(5), “the presence of other

criteria is irrelevant.” State v. Bunch, 7th Dist. Mahoning No. 14MA168, 2015-

Ohio-4151, ¶ 97. In other words, the postconviction DNA testing statutes can be

read together to conclude that if a trial court exercises its discretion to make an

initial determination that an exclusion result would not be outcome determinative,

the trial court “may reject the application without ordering the preparation of an

inventory.” State v. Ridley, 2020-Ohio-2779, 154 N.E.3d 462, ¶ 16 (3d Dist.).

Here, the trial court exercised its discretion to make an initial threshold

determination that postconviction DNA testing would not be outcome

determinative even if an exclusion result were obtained. The trial court was not

required to conduct an evidentiary hearing before denying the application, nor did

it conduct a hearing. Further, the trial court’s stated reasoning for denying the

application appears to be based upon the “overwhelming evidence” introduced by
Scioto App No. 21CA3956 19

the State during the underlying trial, as well as this Court’s prior affirmance of

Gavin’s convictions.

Standard of Review

{¶27} In State v. Hatton, this Court observed that while some courts have

reviewed a trial court’s decision regarding an application for DNA testing under a

de novo standard of review, other courts have employed an abuse of discretion

standard of review. State v. Hatton, 4th Dist. Pickaway No. 05CA38, 2006-Ohio-

5121, ¶ 25-26. In Hatton, we chose, “for the sake of argument,” to apply the

“more stringent standard of review - de novo.” Id. However, since that time, it has

become clear that the proper standard of review is abuse of discretion. Because

R.C. 2953.74(A) provides that a trial court has the discretion, on a case-by-case

basis, to accept or reject an eligible offender’s postconviction application for DNA

testing, and in light of the Supreme Court of Ohio’s holding in State v. Buehler,

supra, it is clear that we review the trial court’s decision as to whether DNA

testing that yields an exclusion result would be outcome determinative for an abuse

of discretion.

{¶28} An “abuse of discretion” means that the court acted in an

“ ‘unreasonable, arbitrary, or unconscionable’ ” manner or employed “ ‘a view or

action that no conscientious judge could honestly have taken.’ ” State v. Kirkland,
Scioto App No. 21CA3956 20

140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67, quoting State v. Brady,

119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23. See also State v.

Landrum, 4th Dist. Ross No. 17CA3607, 2018-Ohio-1280, ¶ 10. A trial court

generally abuses its discretion when it fails to engage in a “ ‘sound reasoning

process.’ ” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528,

¶ 14, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Additionally, “[a]buse-of-

discretion review is deferential and does not permit an appellate court to simply

substitute its judgment for that of the trial court.” State v. Darmond, 135 Ohio

St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.

Legal Analysis

{¶29} As we have already stated, the trial court found and the parties agree

on appeal that Gavin is an eligible offender. Further, as set forth above, the trial

court exercised its discretion to make an initial threshold determination that

postconviction DNA testing would not be outcome determinative even if an

exclusion result were obtained and thus, the trial court did not reach the question of

whether Gavin had satisfied the additional requirements for granting an application

for postconviction DNA testing. As such, the primary question on appeal is

whether the trial court abused its discretion in concluding that DNA testing would
Scioto App No. 21CA3956 21

not be outcome determinative in this case even if the testing yielded an exclusion

result.

{¶30} In making its determination that “the presence or absence of DNA

evidence” would not be outcome determinative in this case, the trial court referred

to the fact that Gavin’s convictions had already been upheld on direct appeal, as

well as the fact that in this Court’s judgment affirming Gavin’s convictions, we

stated that the record contained overwhelming evidence of Gavin’s guilt. 2 In

reaching its decision the trial court also referenced State v. Sells, a case from the

Second District that upheld a trial court’s denial of an application for

postconviction DNA testing. State v. Sells, 2d. Dist. Miami No. 2017-Ohio-987,

86 N.E.3d 891. In Sells, the court found that DNA testing of a victim’s pants and a

baseball bat handle, even if it yielded evidence demonstrating the presence of

someone else’s DNA, would not be outcome determinative. Id. at ¶ 10. The court

reasoned that at the most it would only establish that someone else had touched the

bat and had contact with the victim and that such evidence would not reasonably

exclude Sells as the perpetrator of the crime, nor would it negate the overwhelming

evidence of Sells’ own involvement in the crime. Id. at ¶ 10. The trial court also

cited to State v. Hatton, 4th Dist. Pickaway No. 05CA38, 2006-Ohio-5121, without

any explanation or discussion.

2
We actually stated that there was “extensive, credible evidence” to support Gavin’s convictions.
Scioto App No. 21CA3956 22

{¶31} On appeal, Gavin argues that his application for postconviction DNA

testing “depends in large part on evidence outside the original trial record.” He

explains that since his original trial, multiple witnesses have come forward

implicating Manual Lofton “in a scheme to plant the heroin in Ali Thompson’s

car.” He argues that consideration of the “postconviction witnesses are critical” as

they “bolster his longstanding claim of innocence,” and they provide “concrete,

testable details that can be definitively proven or disproven by DNA.” Gavin

argues that the trial court “appears to have ignored this evidence entirely,” and

instead “relied entirely on the summary of facts from Mr. Gavin’s direct appeal.”

Gavin also argues that this Court’s prior holding in State v. Hatton, supra, “applied

the stricter pre-2006 outcome determinative standard in denying testing. Gavin

contends that, in order to conduct a proper outcome determinative analysis, “the

trial court should have examined all available admissible evidence, as required by

R.C. 2953.74 (D), which Gavin argues would include evidence beyond what was

solely available at the original trial. Gavin argues that “the Ohio Legislature has

repeatedly loosened the outcome determinative requirement in response to inmates

being denied DNA testing,” and that while Ohio law previously required “a

showing that, if DNA testing produced an exclusion result, then ‘no reasonable

factfinder would have found the inmate guilty[,]’ ” it now only requires a showing

“that exculpatory DNA results would lead to a ‘strong probability’ of acquittal.”
Scioto App No. 21CA3956 23

Gavin also argues that “Ohio law does not require an applicant to prove whether

DNA testing is likely to produce exculpatory results,” instead it “presumes that

DNA testing will produce an exculpatory exclusion result.” Gavin further argues

that “ ‘all available admissible evidence’ includes the likelihood of matching an

exclusion result to an alternative suspect.”

{¶32} Importantly, Gavin contends that “[m]odern DNA testing can

conclusively prove [his] guilt or innocence.” More specifically, he argues that

modern DNA testing “can now detect and analyze even a few human skin cells left

behind on the heroin packaging, and science can definitively answer whether either

Gavin or Lofton ever handled the bag of heroin.” He concedes that if his DNA is

found to be on the heroin packaging, his “guilt would be definitively confirmed.”

However, he argues that if DNA from either Lofton, Starks or Woods is found on

the packaging, those results would “definitively corroborate the Starks affidavit,

and, at a minimum, provide a strong probability of a different outcome at trial.”

We agree.

{¶33} In State v. Ayers, the court explained as follows:

In 2006, the General Assembly amended Ohio's DNA testing
statutes. The amendments, among other things, made
postconviction DNA testing more available to inmates and
lowered the outcome-determinative standard for establishing
entitlement to DNA testing. Under the prior version of R.C.
2953.71(L), “outcome determinative” meant that had “the results
of DNA testing been presented at the trial * * * and been found
relevant and admissible with respect to the felony offense for
Scioto App No. 21CA3956 24

which the inmate * * * is requesting the DNA testing * * * no
reasonable factfinder would have found the inmate guilty of that
offense.”

Under the amended statute, “ ‘outcome determinative’ means
that had the results of DNA testing of the subject inmate been
presented at the trial * * * and been found relevant and
admissible with respect to the felony offense for which the
inmate * * * 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 inmate's case *
* *, there is a strong probability that no reasonable factfinder
would have found the inmate guilty of that offense.” (Emphasis
added.) R.C. 2953.71(L).

The addition of the words “strong probability,” among others, in
the current version of R.C. 2953.71(L), in essence lowers the
definition of “outcome determinative” from a showing of
innocence beyond a reasonable doubt to one of clear and
convincing evidence.

Although there is no legislative statement of intent in the
amended R.C. 2953.71(L), there can be no doubt that the rise of
DNA testing as an investigative tool prompted the General
Assembly to lower the statutory standard for what constitutes
“outcome determinative.” The United States Department of
Justice, Office of Justice Programs, has recognized that “DNA
technology has become one of the most powerful tools to ensure
that justice is done through our criminal justice system. It helps
identify offenders and eliminate innocent suspects. Increasingly,
DNA is also used to exonerate the wrongly convicted.” See
Ritter, Postconviction DNA Testing Is at Core of Major NIJ
Initiatives (Mar.2009), National Institute of Justice Journal, No.
262.

State v. Ayers, 2009-Ohio-6096. 923 N.E.2d 654, ¶ 19-22.

{¶34} While a review of the trial court’s judgment indicates that it recited

the proper standard when rendering its decision that DNA testing in this matter
Scioto App No. 21CA3956 25

would not be outcome determinative, it does appear that the trial court limited its

analysis to the evidence introduced solely during trial and did not take into

consideration any of the evidence introduced during the postconviction stage of the

case.

{¶35} As set forth at length in the factual history section above, prior to

filing the current motion for postconviction DNA testing Gavin filed several

postconviction motions, including his initial petition for postconviction relief,

followed by two motions for leave to file motions for new trial. Each of these

petitions/motions were supported by affidavits of witnesses that came forward after

trial claiming that Manual Lofton and Marcell Woods were involved in a setup of

Gavin. Gavin alleged at trial that Marcell Woods was involved in the alleged

setup, but had no evidence to support his allegations. Although the trial court

denied each of these postconviction motions, they were all denied as being

untimely filed and were not addressed on their merits. Further, as set forth above,

this Court recently reversed and remanded the trial court’s denial of Gavin’s

second motion for leave to file a motion for new trial, with instructions that the

trial court consider the motion for leave on the merits. That motion for leave was

primarily supported by the Starks affidavit, in which Starks claims to have first-

hand knowledge that Manual Lofton and Marcell Woods planted drugs in the

vehicle owned by Gavin’s girlfriend.
Scioto App No. 21CA3956 26

{¶36} Further, while there was trial testimony demonstrating that Gavin had

a history of selling drugs, which was admitted as “other acts” evidence, such

testimony did not constitute evidence of drug possession or trafficking on the

actual date in question. Although such evidence circumstantially supported

Gavin’s conviction, the only eyewitness account that Gavin actually possessed or

sold drugs on the date in question came from Lofton himself. Thus, although there

was circumstantial evidence that Gavin possessed the drugs at issue and intended

to traffic them―by virtue of the fact that the drugs were found in his girlfriend’s

car and Gavin was apparently a known drug dealer―without Lofton’s involvement

in the investigation and both Lofton’s and Woods’ trial testimony, not much

evidence remains. There is no way around the fact that Lofton was a key part of

the investigation and trial and without his participation the evidence against Gavin

was rather lacking. In fact, our reference to there being “extensive, credible

evidence” supporting Gavin’s conviction rested heavily on the evidence and

testimony provided by both Lofton and Woods.

{¶37} We are mindful of the fact that upon his arrest Gavin told police that

everything in the car was his, but the record further reflects that Gavin recanted

that confession soon after his arrest and he has consistently claimed his innocence

since that time. Thus, despite the fact that our prior decision referenced that there

was extensive, credible evidence against Gavin at trial, now considering “all
Scioto App No. 21CA3956 27

available admissible evidence”―which includes several affidavits of witnesses

that came forward after trial to implicate Manual Lofton and Marcell Woods―and

if Gavin’s allegations are true, the credibility of Lofton’s and Woods’ testimony

would be severely affected. The trial court was obligated under R.C. 2953.74.(D)

to take this new evidence into consideration when determining whether

postconviction DNA testing would be outcome determinative. Further, taking such

evidence into consideration leads to the conclusion that postconviction DNA

testing which not only excludes Gavin’s DNA, but also includes the DNA of

another source, primarily Lofton and/or Woods, would result in a strong

probability that no reasonable factfinder would have found Gavin guilty of the

offense. See State v. Ayers, supra, at ¶ 34.

{¶38} In Ayers, the appellant sought postconviction DNA testing in order to

prove that he was not the donor of the biological material tying the perpetrator to

the crime, arguing that if the DNA profile of an unidentified person could be

obtained from the testing, “then a strong inference would be raised that the profile

was that of the true assailant.” Id. at ¶ 32. In holding that the trial court erred in

finding that postconviction DNA testing would not be outcome determinative, the

Ayers court reasoned as follows:

As previously noted, “outcome determinative” under the current
statute not only establishes a lower standard for determining
whether a reasonable fact-finder would have found guilt, but
provides also for analyzing DNA test results “in the context of
Scioto App No. 21CA3956 28

and upon consideration of all available admissible evidence
related to the inmate's case.” R.C. 2953.71(L). This additional
language seems to make clear that an exclusion result is not the
only factor to consider when deciding whether DNA testing will
be outcome determinative. In addition to the amendments in
R.C. 2953.71(L), other amendments to the statutes recognize the
advances in DNA testing and provide inmates the avenue to
access the Combined DNA Index System (“CODIS”).

Ayers at ¶ 34.

{¶39} In reaching its decision, the Ayers court relied upon State v. Reynolds,

2d Dist. Montgomery No. 23163, 2009-Ohio-5532, which reversed a trial court’s

decision denying an application for postconviction DNA testing. In Reynolds, the

trial court’s decision determining that DNA testing would not be outcome

determinative was reversed, in part based upon the reasoning that “the absence of

[Reynolds’] DNA and the simultaneous presence of a known felon’s DNA from

CODIS would create a strong probability of a different outcome * * *.” Reynolds

at ¶ 22. The Ayers court further explained that “[t]he amendments to the DNA

statutes and the decision in Reynolds recognize the fact that in some cases, merely

being excluded from a crime scene is insufficient to convince a court that the

requested postconviction relief is warranted.” Ayers at ¶ 37; see also State v.

Johnson, 2014-Ohio-2646, 14 N.E.3d 482, ¶ 25-26 (8th Dist.) (discussing that

DNA testing would be outcome determinative if it reveals the absence of

Johnson’s DNA and presence of a third person who had confessed to the crime,

where evidence indicated there was only one perpetrator of the crime); State v.
Scioto App No. 21CA3956 29

Emerick, 2007-Ohio-1334, 868 N.E.2d 742, ¶ 25 (2d. Dist) (determining that DNA

analysis of the requested evidentiary items would clearly be outcome determinative

of the defendant’s guilt if it demonstrates third party DNA where the State’s theory

at trial was that there was a single perpetrator); State v. Sells, supra, at ¶ 10 (in

contrast, determining that even if DNA testing of the murder weapon and victim’s

pants yielded a result establishing the presence of someone else’s DNA, such result

would not be outcome determinative where there were two co-defendants involved

in addition to the other evidence introduced by the State). Here, if Gavin’s DNA is

found on the bag, he concedes his guilt is confirmed. However, because the State’s

theory at trial was that Gavin solely possessed and trafficked the drugs at issue,

without any involvement by Lofton, Woods or Stark, if DNA from any of these

individuals is found on the bag, such results would be outcome determinative.

{¶40} Finally, regarding the State’s contention that the testing Gavin is

seeking (touch DNA analysis of a plastic baggie) is not the type of testing

contemplated by R.C. 2953.71 et seq., we must disagree. The State contends that

“the bag of heroin does not fall under the definition of ‘Biological Material’

pursuant to R.C. 2953.71(B).” R.C. 2953.71(B) defines “biological material” as

“any product of a human body containing DNA.” The State argues that the

majority of cases involving DNA testing involve rape and murder, rather than drug

trafficking, and it questions “whether a drug trafficking case is even an appropriate
Scioto App No. 21CA3956 30

application of the statutory scheme for post-sentence DNA Testing inasmuch as a

plastic bag containing Heroin does not fall under the definition of Biological

Material.” The State further contends that Gavin’s argument that individuals

touching the bag would have deposited a significant number of DNA-containing

cells where the bag was knotted is “tenuous at best.”

{¶41} Contrary to the State’s argument, plastic bags containing drugs have

been the subject of DNA testing in other Ohio cases, including one from this

district. See State v. Wharton, 4th Dist. Ross No. 09CA3132, 2010-Ohio-4775, ¶

13-14 (where “touch DNA” taken from the outside of three baggies found in a

vehicle was compared to the defendant’s DNA, which yielded a “mixed DNA

profile” indicating that “more than one individual held [the] baggie in their hand

and put their DNA cells on [it]”); see also State v. Wilson, 8th Dist. Cuyahoga No.

102231, 2015-Ohio-4979, ¶ 15-17 (DNA analysis conducted on three plastic bags

demonstrated the existence of a mixture of DNA which indicated the presence of

more than one DNA profile, defendant’s DNA being part of the mixture).

Additionally, the record reflects that Gavin’s motion was supported by an expert

affidavit stating that there is a reasonable expectation of obtaining informative

DNA results should the plastic bag at issue be tested. Thus, we conclude that the

State’s argument is without merit.
Scioto App No. 21CA3956 31

{¶42} In light of the foregoing, we conclude the trial court abused its

discretion in rejecting Gavin’s application based upon its initial determination that

postconviction DNA testing would not be outcome determinative and therefore we

sustain Gavin’s first assignment of error. After considering all available

admissible evidence related to Gavin’s case, we agree with Gavin’s argument that

if his DNA were to be absent from the plastic bag at issue, and if the DNA of either

Starks, Lofton or Woods is present on the bag, there is a strong probability that no

reasonable factfinder would have found Gavin guilty of the offenses at issue and

thus, such results would be outcome determinative. As such, we conclude the trial

court erred in denying Gavin’s application on these grounds. Accordingly, the

judgment of the trial court is reversed and this matter is remanded for further

proceedings, with instructions that the trial court order the prosecutor to prepare

and file a DNA evidence report pursuant to R.C. 2953.75 and then further

determination of whether Gavin meets the remaining criteria for postconviction

DNA testing contained in R.C. 2953.71 et seq.3

ASSIGNMENT OF ERROR II

{¶43} In his second assignment of error, Gavin contends that the trial court

erred and abused its discretion by denying his unopposed motion for access to

3
We note that in its brief the State represents that it “does have in its custody and control a plastic bag containing
Heroin which was potentially evidence in this matter and was not tested for DNA.”
Scioto App No. 21CA3956 32

evidence for testing at his own expense. Gavin argues that while R.C. 2953.71 et

seq. governs the procedures for postconviction DNA testing at the State’s expense,

they do not govern independent testing at a defendant’s own expense. He further

argues that R.C. 2953.84 provides that R.C. 2953.71-81 “do not limit or affect any

other means by which an offender may obtain postconviction DNA testing.”

Gavin also argues that despite the State’s failure to oppose the motion below, the

trial court summarily denied it without discussion or analysis. In response, the

State contends that while it admittedly “did not file a specifically delineated and

captioned Memorandum Contra or Reply to this specific Motion, the State has

opposed every issue raised pertaining to this case otherwise, specifically DNA

testing at this stage.” The State further argues that its opposition to this request

was “implicit.” The State argues that it “agrees with the trial court’s denial of Mr.

Gavin’s request for DNA testing at this stage regardless whether who pays for

it[,]” because “any result of DNA testing on the evidence at issue would in no way

be able to prove actual innocence.” Finally, the State argues that “a result

reflecting no DNA evidence from Ronald Gavin on the plastic bag of Heroin does

not prove anything particularly in light of the fact that the bag was located behind a

stereo faceplate under the passenger seat, removed by law enforcement,

impounded, transported to BCI, tested by BCI, then at some point returned to the

Scioto County Prosecutor’s office.”
Scioto App No. 21CA3956 33

{¶44} Despite the State’s argument, we conclude the trial court abused its

discretion in denying Gavin’s request for expert access for independent testing at

his own expense. Gavin points out that “actual innocence” is not the standard that

must be met when seeking postconviction DNA testing. Gavin also correctly

points out that R.C. 2953.84 does not prohibit such a request. Rather, R.C.

2953.84, which is entitled “Remedies not exclusive,” states as follows:

The provisions of sections R.C. 2953.71 to 2953.81 of the
Revised Code by which an offender may obtain postconviction
DNA testing are not the exclusive means by which an offender
may obtain postconviction DNA testing, and the provisions of
those sections do not limit or affect any other means by which an
offender may obtain postconviction DNA testing.

{¶45} Moreover, the Second District Court of Appeals has determined that

“[a] request to permit the defendant to conduct post-conviction DNA testing

funded by a private source would not fall under R.C. 2953.71.” State v. Emerick,

2d. Dist. Montgomery No. 24215, 2011-Ohio-5543, FN. 3. More specifically, the

Emerick court stated as follows, with respect to the Ohio Innocence Project’s offer

to pay for any additional DNA testing permitted by the court:

R.C. 2953.71 specifically states that an “application” under the
postconviction DNA statute means a request “for the state to do
DNA testing on biological material.” A request to permit the
defendant to conduct post-conviction DNA testing funded by a
private source would not fall under R.C. 2953.71.

Such a request is permitted by R.C. 2953.84, which was enacted
in Senate Bill 262. That statute provides: “The provisions of
sections 2953.71 to 2953.82 of the Revised Code by which an
Scioto App No. 21CA3956 34

inmate may obtain postconviction DNA testing are not the
exclusive means by which an inmate may obtain postconviction
DNA testing, and the provisions of those sections do not limit or
affect any other means by which an inmate may obtain
postconviction DNA testing.”

Provided that a sufficient parent sample is available and the chain
of custody is maintained, we see no reason why a trial court
would decline a request for post-conviction DNA testing by the
defendant when conducted at the defendant's own or another
private entity's expense. We emphasize that any request for
DNA testing outside of the provisions of R.C. 2953.71 to
2953.82 would not require the State to provide a list of all
existing biological materials, as required by those sections.

Although the Innocence Project expressed its intent to pay for
additional DNA testing, Emerick has consistently asserted that
he is entitled to DNA testing under the statutory criteria, not R.C.
2953.84. The trial court did not err in focusing on the statutory
requirements for additional DNA testing. See State v. Constant,
Lake App. No. 2008-L-100, 2009-Ohio-3936.

{¶46} In Emerick, the Ohio Innocence Project offered to pay for DNA

testing. Here, Gavin has requested DNA testing at the state’s expense under R.C.

2953.71 et seq. as well as private testing at his own expense. These are two

separate, independent requests. As already noted above, the State represents that it

has the plastic bag at issue in its custody and control. Assuming there is an

adequate parent sample and chain of custody can be maintained, we see no

plausible reason to deny Gavin’s request for independent testing.

{¶47} Our reasoning is primarily based upon our disposition of Gavin’s first

assignment of error, which found that such testing would be outcome
Scioto App No. 21CA3956 35

determinative, as well as the fact that such testing would not be an economic

burden to the state. Another court has reached the same decision. See State v.

Johnson, 2014-Ohio-2646, 14 N.E.3d 482 (8th Dist.) (noting that because the

defendant was bearing the cost of the DNA testing through non-public means, the

testing would not financially burden the state); see also 2005 Ohio Atty.Gen.Ops.

No. 2005-009, at paragraph three of the syllabus (“R.C. 2953.71-.81 and R.C.

2953.82 are not the exclusive means by which an inmate may obtain post-

conviction DNA testing”). Although Ohio Attorney General Opinions are not

binding authority upon this Court, we may nevertheless accept them as persuasive

authority. State v. Wycuff, 4th Dist. Pickaway No. 19CA28, 2020-Ohio-5320, ¶ 8.

{¶48} In light of the foregoing, we sustain Gavin’s second assignment of

error and reverse the trial court’s summary denial of his motion for expert access

for purposes of independent testing at his own expense. We conclude the trial

court abused its discretion in summarily denying the motion, which should have

been granted provided there is a sufficient parent sample and the chain of custody

can be maintained. Emerick, supra, at FN. 3. Accordingly, the judgment of the

trial court is reversed and this matter is remanded for further proceedings

consistent with this opinion, as set forth in our disposition of Gavin’s first

assignment of error, as well as for further proceedings to implement independent

testing under the parameters set forth herein.
Scioto App No. 21CA3956 36

JUDGMENT REVERSED.

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE REVERSED and costs be assessed to
Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Scioto County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J. concur in Judgment and Opinion.
For the Court,
_____________________________
Jason P. Smith
Presiding Judge

NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.