State v. Isa

[Cite as State v. Isa, 2024-Ohio-980.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY

STATE OF OHIO :
:
Appellee : C.A. No. 2023-CA-28
:
v. : Trial Court Case No. 2007 CR 207
:
ABRAHAM ISA : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:

...........

OPINION

Rendered on March 15, 2024

...........

ABRAHAM ISA, Appellant, Pro Se

JANE A. NAPIER, Attorney for Appellee

.............

WELBAUM, J.

{¶ 1} Defendant-Appellant, Abraham Isa, appeals pro se from a judgment denying

his application for DNA testing, his motion for leave to file a delayed motion for a new trial,

and his request for documents under the Ohio Public Records Act. Isa does not present

specific assignments of error but appears to be asserting prosecutorial misconduct at trial

and ineffective assistance of trial counsel. For the reasons discussed below, Isa’s
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arguments are without merit. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 2} As a preliminary point, this is the eleventh appeal Isa has made to this court

concerning his 2007 conviction. He has also unsuccessfully filed habeas petitions in

federal court and in the Supreme Court of Ohio. The history of his many filings is

complex due to its volume.

{¶ 3} In November 2008, we affirmed on direct appeal Isa’s conviction on thirteen

counts of gross sexual imposition and two counts of rape. State v. Isa, 2d Dist.

Champaign No. 07-CA-37, 2008-Ohio-5906, ¶ 1-66 (Isa I). The five sexual assault

victims in that case had been employed at a Sunoco station and subway shop that Isa

owned and some victims were minors. Id. at ¶ 1-2. At trial, the victims testified that Isa

had “inappropriately touched their breasts and their buttocks and put his hands down their

pants. Two of the victims testified Isa placed his finger in their vaginas. Some of them

testified Isa exposed his penis to them and forced them to touch his penis.” Id. at ¶ 5.

{¶ 4} On direct appeal, Isa raised two assignments of error: (1) the trial court erred

in failing to declare a mistrial due to prosecutorial misconduct in asking about Isa’s prior

conviction; and (2) Isa received ineffective assistance of trial counsel. We rejected both

assignments of error. Id. at ¶ 13 and 65. Isa then appealed from our decision to the

Supreme Court of Ohio, which refused to accept the appeal. See State v. Isa, 121 Ohio

St.3d 1440, 2009-Ohio-1638, 903 N.E.2d 1223.

{¶ 5} In August 2010, we affirmed two post-trial orders by the trial court: (1) the
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denial of Isa’s motion for resentencing, which had alleged the sentencing entry failed to

provide for post-release control; and (2) the denial of Isa’s motion to correct his 24.5-year

prison sentence to 23 years. See State v. Isa, 2d Dist. Champaign Nos. 10-CA-1 and

10-CA-2, 2010-Ohio-3770, ¶ 1-38 (Isa II and III). As indicated, the two appeals were

considered together. We concluded that post-release control, in fact, was in the

sentencing entry and had been discussed during sentencing. Id. at ¶ 10-12. In addition,

we found the trial court had not abused its discretion in overruling the motion to correct

the sentence. Id. at ¶ 36. The Supreme Court of Ohio again declined review. See

State v. Isa, 127 Ohio St.3d 1485, 2010-Ohio-6371, 939 N.E.2d 183.

{¶ 6} In December 2011, Isa filed a habeas petition in federal district court, and

that petition was dismissed in January 2012. See Isa v. Warden, Chillicothe Corr. Inst.,

S.D.Ohio No. 3:11-CV-461, 2012 WL 214316, *1 (Jan. 24, 2012) (dismissing habeas

petition and denying leave for any certificate of appealability). In this particular habeas

action, Isa had asserted ineffective assistance of trial and appellate counsel and the trial

court’s failure to follow evidentiary rules. Isa v. Robinson, S.D.Ohio No. 3:11-CV-461,

2012 WL 10286, *1-2 (Jan 3, 2012) (magistrate’s decision recommending dismissal).

{¶ 7} Isa then filed a second habeas petition in federal district court in July 2012;

the court dismissed the petition in August 2012, based on expiration of the statute of

limitations. See Isa v. Robinson, S.D.Ohio No. 3:12-CV-249, 2012 WL 3063896, *2 (July

2, 2012) (magistrate’s decision recommending dismissal with prejudice); Isa v. Warden,

Chillicothe Corr. Inst., S.D.Ohio No. 3:12-CV-249, 2012 WL 3528159, *1 (Aug. 14, 2012)

(adopting magistrate’s decision and dismissing habeas petition).
 -4-

{¶ 8} In September 2012, Isa filed a pro se motion in the trial court seeking to

vacate his conviction as contrary to law. See State v. Isa, 2d Dist. Champaign No. 2012-

CA-44, 2013-Ohio-3382, ¶ 1 (Isa IV). Despite the styling of the caption of the motion and

its first page, we concluded that Isa was actually asserting ineffective assistance of trial

counsel based on counsel’s alleged advice to reject a plea bargain and counsel’s alleged

failure to advise Isa of the deportation consequences. Id. at ¶ 3 and 5. The trial court

dismissed the matter as an untimely post-conviction petition, and we affirmed. Id. at ¶ 3

and 10. Our decision affirming the trial court judgment was issued on August 2, 2013.

No appeal was taken from this decision.

{¶ 9} While the appeal of that post-conviction motion was pending, Isa had filed a

March 13, 2013 motion in the trial court seeking leave to file a motion for new trial. This

motion was based on alleged newly discovered evidence that Isa’s sons had committed

the crimes or had caused the victims to testify against Isa. State v. Isa, 2d Dist.

Champaign No. 2013-CA-20, 2014-Ohio-139, ¶ 4 (Isa V). We agreed with the trial court

that Isa had failed to present clear and convincing evidence that he could not have timely

discovered the alleged evidence or the grounds for his untimely motion. Id. at ¶ 12-13.

Our opinion was issued on January 17, 2014. Isa appealed from this decision as well,

but the Supreme Court of Ohio denied appeal on May 14, 2014. State v. Isa, 138 Ohio

St.3d 1492, 2014-Ohio-2021, 8 N.E.3d 962 (denying motion for delayed appeal).

{¶ 10} Isa filed three additional motions in the trial court in 2013 but did not appeal

from the trial court’s denial of these motions. See State v. Isa, 2d Dist. Champaign No.

2014-CA-31, 2015-Ohio-2876, ¶ 5 (Isa VI).
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{¶ 11} On May 28, 2014, Isa filed a pro se habeas petition in the Supreme Court

of Ohio. The court dismissed the petition sua sponte on September 14, 2014. See Isa

v. Robinson, 140 Ohio St.3d 1434, 2014-Ohio-4160, 16 N.E.3d 678.

{¶ 12} While the habeas case was pending in the Supreme Court of Ohio, Isa filed

yet another motion in the trial court. This time, Isa moved for resentencing, claiming the

trial court made various statutory errors that caused the sentence to be void in part. Isa

VI at ¶ 6. We agreed with the trial court that even if the court had failed to notify Isa that

he could be ordered to perform community service in lieu of paying court costs, that did

not render the sentence void. The claim was also barred by res judicata because Isa

had not raised the matter on direct appeal. Id. at ¶ 9-15. Our opinion affirming the trial

court judgment was issued on July 17, 2015. Isa did not appeal from this decision to the

Supreme Court of Ohio.

{¶ 13} Shortly thereafter, on August 10, 2015, Isa again filed a pro se motion for

new trial. This time, Isa asserted he had recently discovered additional evidence

showing that his sons had committed the offenses and had manipulated the victims to

testify against him. See State v. Isa, 2d Dist. Champaign No. 2015-CA-35, 2016-Ohio-

4979, ¶ 7 (Isa VII). Isa also again raised trial counsel’s alleged ineffectiveness

concerning the plea offer and also claimed counsel had acted ineffectively by failing to

obtain an Arabic interpreter for trial. Id. We concluded the ineffective assistance claim

was barred by res judicata because the language barrier issue did not rely on evidence

outside the record. This claim was also untimely because Isa failed to show he had

unavoidably been prevented from discovering the pertinent facts. Id. at ¶ 15-17.
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{¶ 14} As to the discovery of new evidence, this claim was based on affidavits Isa

had obtained from two former male employees who were by then fellow-inmates. Id. at

¶ 8. In this regard, we noted: Isa had employed the men before he was indicted; the

men had been aware of the charges; Isa had given his attorney one of the men’s names

before trial; and that man’s affidavit indicated he had expected to be called as a witness

at trial. Id. at ¶ 25. We also stressed that even though Isa was incarcerated, his affidavit

did not “account for the nine years it took to come into contact with” these witnesses. Id.

Furthermore, while Isa was incarcerated, he “was not prevented from attempting to

contact these witnesses himself or through a representative.” Id. We therefore affirmed

the trial court’s judgment on July 15, 2016. Isa did not appeal this decision to the

Supreme Court of Ohio.

{¶ 15} Also on July 15, 2016, we issued another opinion affirming the trial court’s

denial of Isa’s pro se motion to correct a void judgment, which Isa had filed on September

15, 2015. State v. Isa, 2d Dist. Champaign No. 2015-CA-44, 2016-Ohio-4980, ¶ 1 (Isa

VIII). While Isa’s pro se brief failed to assert assignments of error, we surmised that he

was “challenging his sentence on grounds that it violated the prohibition against sentence

packaging as announced in State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846

N.E.2d 824.” Id. at ¶ 7. We found the claim barred by res judicata and also held that,

even if we considered it on the merits, Isa’s sentence did not violate this doctrine. Id. at

¶ 9-12. No appeal was taken from this decision to the Supreme Court of Ohio.

{¶ 16} On December 29, 2016, Isa filed a pro se motion in the trial court seeking

to vacate a void judgment. This motion was based on alleged discrepancies between
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the sentencing hearing and the judgment entry. State v. Isa, 2d Dist. Champaign Nos.

2017-CA-5 and 2017-CA-20, 2017-Ohio-8335, ¶ 9 (Isa IX and X). Isa had also filed

another motion in the trial court on March 8, 2017, seeking correction of an alleged clerical

error in the sentence imposed in the judgment entry. Id. at ¶ 10. After Isa appealed

from both judgments, we consolidated the appeals. Id. at ¶ 11.

{¶ 17} Concerning sentencing, we found the claim barred by res judicata but also

concluded on the merits that any discrepancy was harmless. Our reasoning was that

the sentences in question were imposed concurrently with another much longer sentence.

Consequently, even though the sentences were not discussed during the sentencing

hearing, they were imposed in the judgment entry, and the discrepancy had no effect.

Id. at ¶ 15-22.

{¶ 18} We also rejected Isa’s request for a nunc pro tunc sentencing entry

removing the sentences, because such an entry is only appropriate for correcting clerical

error. Using such a procedure to remove the sentences would not reflect the court’s

intent, which was to impose them. Id. at ¶ 24-26. Our decision was filed on October

27, 2017, and Isa did not appeal from it to the Supreme Court of Ohio.

{¶ 19} Around five-and-a-half years later, on April 3, 2023, Isa filed a motion in the

trial court seeking leave to file a delayed motion for new trial. Isa alleged several grounds

but only referenced ineffective assistance of trial counsel. These claims were that

counsel acted ineffectively by failing to object to sentencing and by “lack of sufficient

investigation into the request for DNA and his [presumably counsel’s] lack of objections

to his client.” Motion for Leave to File a Motion for New Trial (Apr. 3, 2023), p. 3. No
 -8-

affidavits were attached to the new trial motion.

{¶ 20} On April 17, 2023, Isa also filed an application for DNA testing. The

application asserted that DNA evidence could have been used to discredit the victims’

testimony, that Isa was denied the use of an interpreter at trial, and that his trial attorney

was ineffective. Isa additionally alleged that no discovery was given by the prosecution

to his attorney. As support for this latter statement, Isa attached an October 26, 2022

letter from the Champaign County Clerk of Courts. In response to a request from Isa,

the clerk said, “No discovery was filed in your Case #2007CR207. The county

Prosecutor is in possession of the discovery in your case, you will need to send a request

to the Champaign County Prosecutor.” DNA Application, Ex. A, p. 1.1

{¶ 21} On May 9, 2023, Isa filed an affidavit of indigency. He attached a May 8,

2023 letter to the clerk of courts in which he had sought to obtain records pertaining to

his “court appointed attorney,” Lori Reisinger (who was actually the assistant prosecuting

attorney assigned to the case at the time of trial).

{¶ 22} Subsequently, on June 5, 2023, Isa filed an application with the federal

district court seeking DNA testing. See Isa v. Warden, London Corr. Inst., S.D.Ohio No.

1 We interpret this statement to mean that no discovery had been filed with the clerk of

courts, not that Isa’s attorney failed to receive discovery from the prosecutor, as Isa
suggests. The clerk was simply informing Isa that it did not have any materials and that
he should ask the prosecutor. Filing discovery materials with the clerk would be very
unusual. Selected “discovery” materials may be submitted to courts as exhibits, for
example, during suppression hearings and trial. However, the record here contains no
indication that any exhibits were identified or submitted during trial. This is not surprising,
since the victims did not seek medical treatment, no DNA or other physical evidence was
collected, and the trial essentially consisted of the testimony of the victims and Isa. See
Voir Dire Transcript (“Trial 2 Tr.”), 1-562 (three volumes of transcripts from the November
29, 2007 trial). A few officers testified about their investigation, but they did not refer to
documents or other physical evidence.
 -9-

3:23-CV-150, 2023 WL 5210538, *1 (July 20, 2023). On July 20, 2023, a magistrate

recommended dismissal of the action due to Isa’s failure to comply with a Deficiency

Order that required him to either pay a $5.00 filing fee within 30 days or file a poverty

affidavit. Isa was also required to refile the application on the court’s official form. Id.

The court subsequently adopted the magistrate’s recommendation and dismissed the

action without prejudice. Isa v. Warden, London Corr. Inst., S.D.Ohio No. 3:23-CV-150,

2023 WL 5209513, *1 (Aug. 14, 2023).

{¶ 23} In the meantime, on June 6, 2023, Isa had filed another application for DNA

testing in the trial court. The application was the same as the one previously submitted

but included an affidavit explaining that delay in being able to present an “affirmative

defense” was beyond Isa’s control due to the delay in receiving the clerk’s October 26,

2022 letter. Isa again referenced ineffective assistance of trial counsel and the fact that

his request for a translator was not answered.

{¶ 24} On July 5, 2023, the trial court filed correspondence it had received from

Lori Reisinger, who was by then a judge in the Champaign County Juvenile Court. The

correspondence included Isa’s June 24, 2023 letter to Reisinger making a public records

request for all discovery in Isa’s criminal case, and a June 21, 2023 letter from an

assistant to the Champaign County Prosecutor. The prosecutor denied Isa’s public

records request pursuant to R.C. 149.43(B)(8).

{¶ 25} On July 24, 2023, the trial court denied Isa’s application for DNA testing, the

motion for leave to file a motion for new trial, and the public records request. Journal

Entry Denying Defendant’s Application for DNA Testing; Motion for Leave to File a
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Delayed Motion for New Trial; and Request for Documents Under the Ohio Public

Records Act (July 24, 2023) (“Journal Entry”). Isa then timely appealed pro so from the

trial court’s decision.

II. Discussion

{¶ 26} As a preliminary point, App.R. 16(A)(1)-(8) requires briefs to conform to

certain standards. Isa’s brief does not comply with these requirements, including “[a]

statement of the assignments of error presented for review, with reference to the place in

the record where each error is reflected.” App.R. 16(A)(3). While Isa makes blanket

statements like “First Issue at Trial,” followed by “Prosecutorial Misconduct,” this is not

proper phrasing of assignments of error. The brief is deficient in other ways as well.

The law is well-established that “[l]itigants who choose to proceed pro se are presumed

to know the law and correct procedure, and are held to the same standards as other

litigants.” Yocum v. Means, 2d Dist. Darke No. 1576, 2002-Ohio-3803, ¶ 20, citing Kilroy

v. B.H. Lakeshore Co., 111 Ohio App.3d 357, 363, 676 N.E.2d 171 (8th Dist.1996).

{¶ 27} We are permitted to summarily strike a party’s brief or dismiss the appeal

for failure to comply with App.R. 16, but we can also review the matter in the interests of

justice. E.g., State v. Bolton, 2017-Ohio-8903, 100 N.E.3d 1275, ¶ 13 (2d. Dist.). We

will do so here.

{¶ 28} Isa’s brief appears to raise two issues. The first is prosecutorial

misconduct, which, according to Isa, consisted of the following: (1) taking advantage of

Isa’s difficulty in speaking and understanding the English language; (2) leading witnesses
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and scripting their testimony; (3) failing to investigate the allegations against Isa, including

failing to check close-circuit television cameras at his business; and (4) eliciting hearsay

testimony that the defense failed to challenge. Appellant’s Brief, p. 1-3.

{¶ 29} The second issue involves ineffective assistance of trial counsel. In this

regard, Isa contends that trial counsel acted ineffectively in the following ways: (1) failing

to arrange for a translator; and (2) failing to conduct basic investigation, including: (a)

reviewing the business camera footage, which allegedly would have shown that no

misconduct occurred; (b) pulling employment records; and (c) interviewing or calling

witnesses. Id. at p. 3-6.

{¶ 30} “The doctrine of res judicata bars someone from raising a claim that could

have been raised and litigated in a prior proceeding.” State v. Blanton, 171 Ohio St.3d

19, 2022-Ohio-3985, 215 N.E.3d 467, ¶ 2, citing State v. Perry, 10 Ohio St.2d 175, 180,

226 N.E.2d 104 (1967). Consequently, courts will not consider claims that could have

been decided on direct appeal. Id. An exception exists, where “either (1) the petitioner

had the same attorney at trial and on appeal or (2) he must rely on evidence outside the

trial record to establish his claim for relief. * * * The converse is that when the petitioner

had a new attorney on appeal and the claim could have been litigated based on the trial

record, res judicata applies and the postconviction claim is barred.” Id., citing State v.

Cole, 2 Ohio St.3d 112, 113-114, 443 N.E.2d 169 (1982).

{¶ 31} The record here indicates that Isa’s counsel for his trial and his direct appeal

were different. See Isa I, 2d Dist. Champaign No. 2007-CA-37, 2008-Ohio-5906. More

importantly, as the factual background reveals, the issues being raised have been
 -12-

litigated many times previously during various post-conviction proceedings. Isa is also

raising matters that occurred at trial and could have been raised on direct appeal. In the

rare situation where Isa has alleged something that could be outside the record, like

counsel’s failure to review security camera footage, Isa has offered no affidavits,

documents, or evidence that was outside the trial court record to support any of his claims.

Therefore, res judicata applies, and Isa is precluded from again raising prosecutorial

misconduct or ineffective assistance of trial counsel based on matters that occurred

during trial.

{¶ 32} Furthermore, Isa has failed on appeal to address the issues the trial court

actually did decide: the motion for leave to file a delayed new trial motion; the DNA testing

application; and the public records request. Isa does mention the application and new

trial motion in passing but offers no argument about these matters.

{¶ 33} Under App.R. 12(A), we “may disregard an assignment of error presented

for review if the party raising it fails to identify in the record the error on which the

assignment of error is based or fails to argue the assignment separately in the brief, as

required under App.R. 16(A).” Nonetheless, we may choose to consider the error or to

consider plain error. E.g., Rose v. Cochran, 2d Dist. Montgomery No. 25498, 2013-Ohio-

3755, ¶ 5 (employing plain error doctrine); State v. Huelsman, 2d Dist. Miami No. 2022-

CA-21, 2023-Ohio-649, ¶ 8 (considering error that was not properly alleged); State v.

Lauharn, 2d Dist. Miami No. 2010-CA-35, 2011-Ohio-4292, ¶ 7 (addressing error briefly).

We note the State made no attempt in its brief to address anything other than the

prosecutorial misconduct and ineffective assistance of counsel issues.
 -13-

A. New Trial

{¶ 34} Crim.R. 33(A) allows new trials to be granted on various grounds. As

relevant here, Isa alleged the following grounds: “Irregularity in the proceedings of the

court, jury, magistrate, or prevailing party, or any order of the court or magistrate, or abuse

of discretion, by which an aggrieved party was prevented from having a fair trial”;

“Misconduct of the jury, prosecuting attorney, or the witnesses for the state”; “Accident or

surprise which ordinary prudence could not have guarded against”; “The judgment is

contrary to law”; and “Newly discovered evidence, material for the party applying, which

with reasonable diligence he could not have discovered and produced at trial.” Motion

for Leave to File a Delayed Motion for New Trial (Apr. 3, 2023), p. 3. These correspond

to the grounds listed in Crim.R. 33(A)(1), (2), (3), (4), and (6).

{¶ 35} Crim.R. 33(B) provides time limits within such motions must be filed.

Clearly those limits had expired here; the trial ended in November 2007. Isa has also

filed such new trial motions before and they have been rejected. See Isa V, 2d Dist.

Champaign No. 2013-CA-20, 2014-Ohio-139; Isa VII, 2d Dist. Champaign No. 2015-CA-

35, 2016-Ohio-4979.

{¶ 36} “A trial court's decision on a Crim.R. 33 motion for a new trial will not be

reversed absent an abuse of discretion.” State v. Gillispie, 2d Dist. Montgomery No.

24456, 2012-Ohio-1656, ¶ 31, citing State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54

(1990), paragraph one of the syllabus; State v. Matthews, 81 Ohio St.3d 375, 378, 691

N.E.2d 1041 (1998). “ ‘Abuse of discretion’ has been defined as an attitude that is
 -14-

unreasonable, arbitrary or unconscionable.” (Citation omitted.) AAAA Ents., Inc. v.

River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

N.E.2d 597 (1990). Usually, abuse of discretion involves decisions that are based on

unsound reasoning rather than being capricious or arbitrary. Id.

{¶ 37} “In order to file a motion for new trial after the expiration of the time periods

specified in Crim.R. 33(B), a defendant must first seek leave of the trial court to file a

delayed motion.” State v. DeVaughns, 2018-Ohio-1421, 110 N.E.3d 922, ¶ 18 (2d Dist.).

(Other citations omitted.) “ ‘To obtain leave, defendant must demonstrate by clear and

convincing evidence that he or she was unavoidably prevented from timely filing the

motion for a new trial or discovering the new evidence within the time period provided by

Crim.R. 33(B).’ ” Id., quoting State v. Warwick, 2d Dist. Champaign No. 2001-CA-33,

2002 WL 1585663, *2 (July 19, 2002). “ ‘[A] party is unavoidably prevented from filing a

motion for new trial if the party had no knowledge of the existence of the ground

supporting the motion for new trial and could not have learned of the existence of that

ground within the time prescribed for filing the motion for new trial in the exercise of

reasonable diligence.’ ” State v. Parker, 178 Ohio App.3d 574, 2008-Ohio-5178, 899

N.E.2d 183, ¶ 16 (2d Dist.), quoting State v. Walden, 19 Ohio App.3d 141, 145-146, 483

N.E.2d 859 (10th Dist.1984).

{¶ 38} The trial court rejected Isa’s new trial motion because Isa failed to explain

why he previously could not have raised the matters that were asserted in the motion.

Judgment Entry at p. 7. Having reviewed the record, we agree. Accordingly, the trial

court did not abuse its discretion in denying Isa’s motion.
 -15-

B. Application for DNA Testing

{¶ 39} The fact that no DNA test was performed before or during the initial trial

proceedings is undisputed. In this situation, R.C. 2953.74(B) provides that “the court

may accept the application only if:”

(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.

{¶ 40} “ ‘Outcome determinative’ means that ‘there is a strong probability that no

reasonable factfinder would have found the offender guilty of [the] offense’ for which he

or she was convicted if the DNA results had been presented and found relevant and

admissible at trial and ‘had those results been analyzed in the context of and upon

consideration of all available admissible evidence related to the offender's case.’ ” State

v. Scott, 171 Ohio St.3d 651, 2022-Ohio-4277, 220 N.E.3d 668, ¶ 7, quoting R.C.
 -16-

2953.71(L). In deciding if the outcome-determinative requirement has been satisfied,

trial courts “ ‘shall consider all available admissible evidence related to the subject

offender's case.’ ” Id., quoting R.C. 2953.74(D).

{¶ 41} Further restrictions are that trial courts “may ‘accept’ an eligible inmate's

application for DNA testing only if the following factors are present: (1) biological material

was collected from the crime scene or the victim(s), and the parent sample of that

biological material still exists; ( 2) the parent sample of the biological material is sufficient,

demonstrably uncorrupted, and scientifically suitable for testing; (3) the identity of the

perpetrator of the charged offense was an issue at the inmate's trial; (4) a defense theory

at trial was such that it would permit a conclusion that an ‘exclusion result will be outcome

determinative’; and (5) ‘if DNA testing is conducted and an exclusion result is obtained,

the results of the testing would be outcome determinative.’ ” State v. Emerick, 170 Ohio

App.3d 647, 2007-Ohio-1334, 868 N.E.2d 742, ¶ 15 (2d Dist.), referencing R.C.

2953.74(B) and (C). If any one of these factors does not exist, the court cannot grant

the application. Id. at ¶ 16. Accord State v. Warren, 2022-Ohio-4743, 203 N.E.3d 903,

¶ 12 (2d Dist.).

{¶ 42} Decisions whether to accept DNA applications are within a court’s

discretion. Therefore, review is for abuse of discretion. Scott at ¶ 10.

{¶ 43} In rejecting the application, the trial court found that Isa had failed to

establish any of the factors in R.C. 2953.74(B)(1). Journal Entry at p. 3. In addition, the

court found that R.C. 2953.74(C)(3) was not satisfied because the identity of the

perpetrator had not been at issue at trial. Specifically, five victims testified as to Isa’s
 -17-

sexual contact, and they did not identify any piece of clothing they were wearing at the

time of the incidents. Id. at p. 4. Isa also did not claim at trial that another individual

was responsible; instead, he denied having sexual contact with the victims. Id. Having

reviewed the evidence in the record, we agree with the trial court and find no abuse of

discretion.

{¶ 44} In Isa’s first jury trial (at which his motion for a mistrial was granted), there

was no claim that someone else committed the alleged crimes. See Transcript of Trial

Proceedings (Trial 1), 22-24 (defense’s opening statement) and 154 (Isa stated to police

that the allegations “were all lies”). During the second jury trial, which convened a few

weeks later, Isa did not claim that other persons were responsible; instead, he asserted

there was no physical evidence and there were no witnesses to the alleged crimes. Isa

also denied having committed the crimes. Trial 2 Tr. at 20-23 (defense’s opening

statement); 209 (Isa denied all allegations to the police); 214 (victims did not tell police

there were any witnesses); 461, 464-465, 482, 492, and 494 (Isa’s testimony denying all

allegations of sexual contact); and 524 (defense’s closing argument). In view of these

facts, the trial court correctly found that the issue at trial was not the perpetrator’s identity.

This was fatal to the application. Accordingly, the court did not abuse its discretion in

denying Isa’s application for DNA testing.

C. Public Records Request

{¶ 45} As indicated, the Champaign County Prosecutor denied Isa’s request for

records of all discovery in the case. The trial court also denied Isa’s request, concluding
 -18-

that Isa had failed to show he needed the requested documents to support a justiciable

claim. Journal Entry at 8. The court further stressed that Isa had failed to identify a

pending proceeding to which the records would be material and that Isa had failed to

show the records were material to his DNA application or to his motion for leave to file a

motion for new trial. Id.

{¶ 46} R.C. 149.43 outlines procedures for obtaining public records. In this

regard, R.C. 149.43(B)(1) provides: “Upon request by any person and subject to division

(B)(8) of this section, all public records responsive to the request shall be promptly

prepared and made available for inspection to the requester at all reasonable times during

regular business hours.” In turn, division (B)(8) states that:

A public office or person responsible for public records is not required

to permit a person who is incarcerated pursuant to a criminal conviction or

a juvenile adjudication to inspect or to obtain a copy of any public record

concerning a criminal investigation or prosecution or concerning what would

be a criminal investigation or prosecution if the subject of the investigation

or prosecution were an adult, unless the request to inspect or to obtain a

copy of the record is for the purpose of acquiring information that is subject

to release as a public record under this section and the judge who imposed

the sentence or made the adjudication with respect to the person, or the

judge's successor in office, finds that the information sought in the public

record is necessary to support what appears to be a justiciable claim of the

person.
 -19-

{¶ 47} The Supreme Court of Ohio has characterized the language in R.C.

149.43(B)(8) as “ ‘broad and encompassing.’ ” State ex rel. Ware v. Giavasis, 160 Ohio

St.3d 383, 2020-Ohio-3700, 157 N.E.3d 710, ¶ 6, quoting State ex rel. Russell v.

Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶ 14. This part of the

statute also “ ‘clearly sets forth heightened requirements for inmates seeking public

records.’ ” (Emphasis sic.) State ex rel. Ellis v. Cleveland Police Forensic Laboratory,

157 Ohio St.3d 483, 2019-Ohio-4201, 137 N.E.3d 1171, ¶ 9, quoting Russell at ¶ 14.

{¶ 48} Trial court decisions under R.C. 149.43(B)(8) are reviewed for abuse of

discretion. E.g., State v. Stinson, 2d Dist. Montgomery No. 28073, 2019-Ohio-401, ¶ 8.

No abuse of discretion occurred here.

{¶ 49} We have held that “[c]laims barred by res judicata are not justiciable.”

State v. Reid, 2d Dist. Montgomery No. 24672, 2012-Ohio-1659, ¶ 9. That would apply

to Isa’s attempt to file a new trial motion, which was barred by res judicata. We did

remark in Reid that res judicata would not apply to claims based on discovery of new

evidence. Id. at ¶ 10, citing State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959

N.E.2d 516. However, for the reasons we have mentioned, this ground was not

established; Isa offered nothing to show either that new evidence existed or that he had

been prevented from discovering it.

{¶ 50} Furthermore, while the application for DNA testing was not barred by res

judicata, Isa failed to indicate in the trial court why trial discovery materials would assist

in that proceeding. In fact, he made no specific argument at all.

{¶ 51} Based on the preceding discussion, Isa’s purported assignments of error
 -20-

are overruled.

III. Conclusion

{¶ 52} All of Isa’s assignments of error having been overruled, the judgment of the

trial court is affirmed.

.............

EPLEY, P.J. and TUCKER, J., concur.