State v. Wangler , 2012 Ohio 4878 ( 2012 )

[Cite as State v. Wangler, 2012-Ohio-4878.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-11-18
v.
MARK A. WANGLER, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2009 0298
Judgment Affirmed
Date of Decision: October 22, 2012
APPEARANCES:
Christopher R. McDowell, Sarah Sparks Herron and
Roxanne L. Ingles for Appellant
Juergen A. Waldick and Jana E. Emerick for Appellee
Case No. 1-11-18
ROGERS, J.
{¶1} Defendant-Appellant, Mark Wangler (“Mark”), appeals from the
judgment of the Court of Common Pleas of Allen County convicting him of one
count of aggravated murder and sentencing him to life imprisonment with parole
eligibility after twenty-five years. On appeal, Mark contends that the trial court
erred in denying his motions to suppress; that the trial court erred in refusing to
exclude the testing performed by the Wisconsin State Laboratory of Hygiene (“the
Lab”) and the testimony of the Lab’s employees; that the trial court erred in
excluding testimony of his expert witness, Frederick Teeters; and, that he was
denied a fair trial as a result of discovery violations that denied him access to
material evidence. Given the alleged errors, Mark contends that his conviction
should be vacated and that he be granted a new trial. Based on the following, we
affirm the judgment of the trial court.
{¶2} On the night of September 4, 2006, Mark and his wife, Kathy Wangler
(“Kathy”), were asleep in their residence. That night, Kathy slept in a bedroom
located on the second floor, while Mark slept in the master bedroom located on the
first floor. At 5:18 a.m., the Allen County Sheriff’s Office (“the Sheriff’s Office”)
received a 911 call from Mark exclaiming that the carbon monoxide (“CO”) alarm
in his residence was sounding and that Kathy, a diagnosed epileptic, was having a
seizure. During the 911 call, but prior to the arrival of emergency services, Mark
-2-
Case No. 1-11-18
informed the dispatcher that he had opened the windows in Kathy’s bedroom and
began performing CPR on Kathy.
{¶3} At approximately 5:22 a.m., Chief Joseph Kitchen (“Chief Kitchen”),
Bath Township’s Fire Chief, was the first of the emergency services personnel to
arrive at the residence. Upon entering the residence, Chief Kitchen heard the CO
alarm sounding. Mark escorted Chief Kitchen to Kathy’s bedroom where he
found Kathy lying with her torso on an air mattress and her legs on the floor.
Upon checking Kathy’s vital signs Chief Kitchen discovered that Kathy was not
breathing and had no pulse. As a result, Chief Kitchen proceeded to slide Kathy
off the air mattress and began CPR.1 At approximately 5:23 a.m., the Bath
Township EMS arrived on scene and began advanced life support procedures.
During this time, Kathy was placed on a cardiac monitor, which revealed that
Kathy was in asystole, which is colloquially known as flatline, i.e., there was no
electrical activity in her heart. Because of her condition and failure to respond to
advanced life support procedures, Kathy was transported to Lima Memorial
Hospital (“the hospital”), where she arrived at 5:45 a.m. Shortly after Kathy was
transported to the hospital, a sheriff’s deputy transported Mark to the hospital for
treatment.
1
At trial, Kitchen, as well as other medical professionals, testified that in order to properly administer CPR
the victim must be lying on a solid surface.
-3-
Case No. 1-11-18
{¶4} Upon arrival at the hospital, Dr. Rina Stein, the attending emergency
physician, examined Kathy noting that her jaw was stiff and difficult to open, her
neck was stiff, her skin was pale and cool to the touch, her internal body
temperature was 95.5 degrees Fahrenheit, and her body was exhibiting signs of
posterior lividity. Despite continued efforts to resuscitate Kathy, she was
officially declared dead at 5:54 a.m. Based on the condition of Kathy’s body, it
was Dr. Stein’s opinion that Kathy had died before she arrived at the hospital.
{¶5} Mark arrived at the hospital shortly after Kathy, and was treated for
CO poisoning. At the hospital, Mark was found to have a carboxyhemoglobin
level of 13%.2 Mark was released from the hospital at 10:54 a.m.
{¶6} After Kathy was transported to the hospital, at approximately 5:40
a.m., Cledus Hawk II (“Hawk”), a firefighter with the Bath Township Fire
Department, entered the residence to measure CO levels. Initially, Hawk
proceeded to the basement where his measuring instrument, a four gas analyzer
(“analyzer”), measured a CO level of 50 parts per million (“ppm”). As a result of
the reading, Hawk exited the residence and equipped himself with a self-contained
breathing apparatus (“SCBA”). Several minutes after Hawk exited the residence,
he reentered the residence and again proceeded to the basement. This time the
2
Carboxyhemoglobin is defined as “a very stable combination of hemoglobin and carbon monoxide
formed in the blood when carbon monoxide is inhaled with resulting loss of ability of the blood to combine
with oxygen.” Merriam-Webster (2012), http://www.merriam-webster.com/medical/carboxyhemoglobin
(accessed October 15, 2012).
-4-
Case No. 1-11-18
analyzer measured a CO level of 35-30 ppm. At 6:00 a.m., Hawk closed all of the
windows in the residence and waited approximately an hour before he reentered
the residence. At 7:10 a.m., Hawk reentered the residence and proceeded to the
basement where the analyzer measured a CO level of 20-15 ppm. After taking a
reading in the basement, Hawk proceeded to Kathy’s bedroom. There, the
analyzer measured a CO level of 25-20 ppm. Shortly thereafter, Hawk returned to
the basement and held the analyzer near the natural gas-fired water heater and
furnace for several minutes and found that the CO levels near those appliances
were the same as those measured throughout the basement.
{¶7} After the residence was deemed safe for entry without a SCBA,
Sergeant Philip Sherrick (“Sergeant Sherrick”), a deputy with the Sheriff’s Office,
conducted a walkthrough of the residence. Upon inspecting Kathy’s bedroom,
Sergeant Sherrick observed soot-like markings on the wall directly above a
register located in the floor. Sergeant Sherrick then continued to the master
bedroom. Upon entering the master bedroom, Sergeant Sherrick noticed a
pungent sulfur-like order emanating from the en-suite master bathroom. Upon
entering the master bathroom, Sergeant Sherrick observed that the carpet around
the toilet was wet, a floor fan was running, and the bathroom window was open.
Thereafter, Sergeant Sherrick continued to the basement. The basement had two
staircases, one leading into the residence and one leading into the garage. After
-5-
Case No. 1-11-18
examining the basement, Sergeant Sherrick continued to the garage where he
observed two vehicles parked inside the garage, as well as a lawn mower, snow
blower, and gas powered generator. Outside the garage, Sergeant Sherrick
observed an RV and another vehicle parked in the driveway.
{¶8} After conducting a walkthrough of the residence, Sergeant Sherrick
drove to the hospital. Sergeant Sherrick arrived at the hospital at approximately
8:15 a.m. and spoke with Mark. During their conversation, Mark explained that
he awoke to the CO alarm sounding, that he went upstairs to check on Kathy and
found her having what he perceived to be a seizure, that he went back downstairs
to call 911, and that he conducted CPR until emergency services personnel
arrived. Mark also explained that the furnace and water heater had been replaced
two years prior, and that the wind would periodically blowout the water heater’s
pilot light.
{¶9} On the morning of Kathy’s death, Jan Zuber (“Zuber”), a customer
service representative for Old Dominion Gas Company, arrived at the residence to
determine the source of the CO. Zuber sealed the residence (i.e., closed the
windows and doors) and ran the furnace and water heater one at a time. As each
appliance was running, Zuber walked throughout the residence measuring the CO
levels. During the testing, the highest measurement of CO detected in the
residence was 3 ppm. Zuber also inspected the furnace and water heater and
-6-
Case No. 1-11-18
determined that each appliance was properly operating. Despite this
determination, Zuber placed a red tag on the water heater because of a code
violation concerning the height of the water heater’s flue outside the residence.
{¶10} On September 5, 2006, Dr. Diana Barnett (“Dr. Barnett”), a forensic
pathologist and deputy coroner with the Lucas County Coroner’s Office,
performed Kathy’s autopsy. As part of the autopsy, Dr. Barnett sent samples of
Kathy’s blood to Dr. Robert Forney, chief toxicologist with the Lucas County
Coroner’s Office. Kathy’s blood had a carboxyhemoglobin level of 69.6%. Based
on Kathy’s carboxyhemoglobin level, Dr. Barnett concluded that Kathy died of
acute CO poisoning. Upon review of Kathy’s emergency room records, it was Dr.
Barnett’s opinion that Kathy died one to two hours before arriving at the hospital.
{¶11} On the morning of September 6, 2006, Steve Erlenbach
(“Erlenbach”), an engineer with SEA Limited, a forensic investigation firm, was
contacted by the Sheriff’s Office and asked to investigate Mark and Kathy’s CO
poisoning. Erlenbach arrived at the residence at approximately noon the same day
and began his investigation. First, Erlenbach conducted a walkthrough of the
residence. During his walkthrough, Erlenbach observed and photographed soot
stains on the wall above the register in Kathy’s bedroom, as well as soot-stained
carpet underneath the same register. Erlenbach noted that the residence contained
three natural gas-fired appliances, to wit: a furnace; a water heater; and gas
-7-
Case No. 1-11-18
fireplace. All three natural gas-fired appliances were located in the basement.
During his investigation, Erlenbach operated the furnace, water heater, and gas
fireplace one at a time under different conditions (i.e., basement door open and
closed, bathroom exhaust fans on and off, windows open and closed). After
testing each appliance, Erlenbach determined that each appliance was properly
operating and detected no abnormal or unsafe levels of CO emanating from the
appliances. Though Erlenbach determined that the water heater was properly
operating, he did find that the flue from the water heater extending outside the
residence was in violation of the National Fuel Gas Code, because it did not
extend high enough in the air.
{¶12} Following his investigation, in October 2006, Erlenbach sent the
Sheriff’s Office a report detailing his investigation, analysis, and conclusions.
Erlenbach’s report contained the following conclusions:
SEA testing of the gas appliances within the Wangler home showed
no source of fugitive carbon monoxide (outside of a small amount of
carbon monoxide emitted from a vent-free fireplace).
The levels of carbon monoxide emitted from the vent-free fireplace
fall well within acceptable exposure limits set by OSHA and
ASHRAE (American Society of Heating, Refrigeration, and Air-
Conditioning Engineers) and were not causal to the incident.
The vent for the water heater was not of sufficient height according
to the National Fuel Gas Code (NFPA 54).
If Mr. Wangler’s story about the water heater pilot light is true, then
the water heater has a venting problem that occurs under certain
-8-
Case No. 1-11-18
conditions. This problem could be allowing products of combustion
(including CO) to backdraft through the water-heater vent and into
the home. According to Mr. Wangler, there was hot water use the
night preceding the incident.
Additional testing would be required to test venting performance
under different outdoor conditions.
If it is true that Mrs. Wangler had a carboxyhemoglobin (COHb)
level of 69%, she would had to have been exposed to CO levels in
excess of 1200 ppm. The fact that Mr. Wangler was in a room with
the windows open and a fan running could explain why his COHb
levels were so much lower than his wife’s.
Additional testing would be required to determine the cause of the
staining near the supply-air registers.
SEA cannot eliminate the possibility of a car running in the attached
garage as a potential source of carbon monoxide in the home.
October 2, 2006 SEA Report, p. 2.
{¶13} In April 2007, then Sergeant Clyde Breitigan (“Sergeant Breitigan”),
a deputy with the Sheriff’s Office, filed an affidavit (“April affidavit”) in support
of a warrant to search the Wangler residence. In the April affidavit, Sergeant
Breitigan made clear that the Sheriff’s Office sought the requested items in
relation to the offense of aggravated murder.3 The warrant (“April search
warrant”) was granted and executed on April 24, 2007. During the execution of
the April search warrant, law enforcement, including Sergeant Breitigan, seized
various items, including but not limited to, a personal computer, a laptop, various
computer accessories, various data storage devices, a portable GPS unit,
3
The requested items will be discussed in further detail below.
-9-
Case No. 1-11-18
miscellaneous papers, three handwritten journals, cash, credit cards, jewelry, and
books.
{¶14} In October 2007, Sergeant Fred Depalma (“Sergeant Depalma”), a
deputy with the Sheriff’s Office, contacted the Lab and spoke with the Lab’s
program director, Dr. Jamie Schauer (“Dr. Schauer”). Sergeant Depalma asked
Dr. Schauer whether the Lab was capable of testing for and detecting particles
emitted from an internal combustion engine (“engine”), to which Dr. Schauer
responded in the affirmative.
{¶15} In November 2007, Sergeant Breitigan, based on the items seized
under the April search warrant and the testing capabilities of the Lab, filed an
affidavit (“November affidavit”) in support of a second warrant to search the
Wangler residence. The warrant (“November search warrant”) was granted and
executed on November 15, 2007. During the execution of the November search
warrant, law enforcement, including Sergeant Breitigan, seized various items,
including but not limited to, ductwork, the register from Kathy’s bedroom, and a
swatch of carpet surrounding the same register. These items were sealed and
stored in the Sheriff’s Office’s evidence room, where they remained until they
were transported to the Lab.
{¶16} On January 29, 2008, Sergeant Depalma transported the items seized
under the November search warrant, as well as several control samples, to the Lab.
-10-
Case No. 1-11-18
On September 11, 2009, the Lab sent the Sheriff’s Office a report (“the Report”)
authored by Dr. Schauer detailing the Lab’s analysis and his conclusions. In the
Report, Dr. Schauer concluded that molecular tracers found in the soot collected
from the duct work were commonly found in soot emitted from an engine.4
{¶17} On September 17, 2009, the Allen County Grand Jury indicted Mark
on one count of aggravated murder in violation of R.C. 2903.01(A), an
unclassified felony. In response, Mark entered a plea of not guilty.
{¶18} In November 2009, Mark filed motions to suppress property seized
under the April and November search warrants. In December 2009, the matter
proceeded to a suppression hearing. During the hearing, the trial court requested
that the parties file supplemental briefs in support of their respective positions,
and, based on the parties agreement, that the briefs be filed on the same day. On
January 12, 2010, the parties filed their supplemental briefs. Later that same
month, the trial court filed its order overruling Mark’s motions to suppress.
{¶19} In August 2010, Mark filed a motion in limine requesting the trial
court to exclude the testing performed by the Lab and the testimony of the Lab’s
employees. Mark argued, in relevant part, that the testing performed by the Lab,
as well as expert testimony concerning the same, was not admissible because the
methodology employed by the Lab was neither scientifically reliable nor relevant
4
We note that in addition to the Report issued by the Lab in September 2009, Dr. Schauer authored a
revised version of the Report in February 2011, in which he explained the Lab’s analysis and his
conclusions in further detail. The State admitted the revised Report at trial.
-11-
Case No. 1-11-18
to the facts at issue in the case. In September 2010, the matter proceeded to a
Daubert hearing. Later that month, the trial court filed its order overruling Mark’s
motion in limine.
{¶20} On February 28, 2011, the matter proceeded to a jury trial. On
March 16, 2011, the jury returned a guilty verdict on the sole count of aggravated
murder. Thereafter, the trial court sentenced Mark to life imprisonment with
parole eligibility after twenty-five years.
{¶21} It is from this judgment Mark appeals, presenting the following
assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED BY REFUSING TO SUPPRESS
THE EVIDENCE OBTAINED PURSUANT TO
UNCONSTITUTIONAL SEARCH WARRANTS.
Assignment of Error No. II
THE TRIAL COURT ERRED BY REFUSING TO EXCLUDE
THE STATE’S EXPERT TESTIMONY.
Assignment of Error No. III
THE TRIAL COURT ERRED BY EXCLUDING THE
TESTIMONY OF DR. WANGLER’S EXPERT WITNESS,
FREDERICK A. TEETERS.
Assignment of Error No. IV
DR. WANGLER WAS DENIED A FAIR TRIAL AS A
RESULT OF NUMEROUS DISCOVERY VIOLATIONS
THAT DENIED HIM MATERIAL EVIDENCE.
-12-
Case No. 1-11-18
Assignment of Error No. I
{¶22} In his first assignment of error, Mark contends that the trial court
erred by refusing to suppress the evidence obtained under the April and November
search warrants. Specifically, Mark contends that the April affidavit lacked
probable cause to seize handwritten materials from his residence; that the April
and November affidavits contained stale information; that the April search warrant
did not describe with particularity the items to be seized; that law enforcement
exceeded the scope of the April and November search warrants; that the trial court
erred in applying the good faith exception to the items seized under the April and
November search warrants; and, that the November affidavit contained knowingly
false information.
{¶23} Before we address the merits of the foregoing contentions, we must
first address the issue of waiver as raised by the State.
I. Waiver
{¶24} In its response to Mark’s first assignment of error, the State argues
that three of Mark’s foregoing contentions were not raised below, to wit: the April
and November affidavits contained stale information; the April search warrant did
not describe with particularity the items to be seized; and, law enforcement
exceeded the scope of the November search warrant. As a result, the State argues
-13-
Case No. 1-11-18
that Mark has waived appellate review of these contentions. Based on the
following, we agree.
{¶25} Crim.R. 47, which governs motions in criminal proceedings,
provides, in relevant part:
An application to the court for an order shall be by motion. A
motion, other than one made during trial or hearing, shall be in
writing unless the court permits it to be made orally. It shall state
with particularity the grounds upon which it is made and shall set
forth the relief or order sought. It shall be supported by a
memorandum containing citations of authority, and may also be
supported by an affidavit. (Emphasis added.).
In City of Xenia v. Wallace, 37 Ohio St.3d 216 (1988), the court explained that
“[Crim.R. 47], * * * when applied to a motion to suppress evidence obtained by
search and seizure, requires that the prosecution be given notice of the specific
legal and factual grounds upon which the validity of the search and seizure is
challenged.” Id. at 219. “The prosecutor must know the grounds of the challenge
in order to prepare his case, and the court must know the grounds of the challenge
in order to rule on evidentiary issues at the hearing and properly dispose of the
merits.” Id. at 218. “Failure on the part of the defendant to adequately raise the
basis of his challenge constitutes waiver of that issue on appeal.” Id.; see also
State v. Shindler, 70 Ohio St.3d 54, 58 (1994) (“[b]y requiring the defendant to
state with particularity the legal and factual issues to be resolved, the prosecutor
-14-
Case No. 1-11-18
and court are placed on notice of those issues to be heard and decided by the court
and, by omission, those issues which are otherwise being waived”).
{¶26} Review of the record, specifically Mark’s motions to suppress,
suppression hearing transcript, and Mark’s supplemental brief in support of his
motions to suppress, reveal that Mark never argued before the trial court that the
April and November affidavits contained stale information or that the April search
warrant did not describe with particularity the items to be seized.5 Accordingly,
Mark’s contentions concerning staleness and particularity are waived on appeal.
{¶27} In addition, review of the record reveals that Mark has waived his
contention that the November affidavit contained knowingly false information.
While Mark did argue below that the November affidavit contained knowingly
false information, the basis of that contention was materially different from the
basis of his assertion on appeal. Below, Mark argued that Sergeant Breitigan’s
discussion of Kathy’s condition upon her arrival at the hospital (i.e. Kathy’s core
temperature, stiffness of her jaw) and conclusion that her condition indicated she
died sometime before Mark called 911 was false and made in reckless disregard
for the truth. (Docket No. 28, p. 3-5; Docket No. 43, p. 16-22). On appeal,
however, Mark contends that Sergeant Breitigan’s statements that Mark tracked
Kathy’s movements via GPS and conducted internet searches relating to CO were
5
Notably, Mark, in his reply brief, does not deny that he failed to raise these contentions before the trial
court.
-15-
Case No. 1-11-18
false and made in reckless disregard for the truth. Clearly, the argument raised
below concerning the inclusion of knowingly false information in the November
affidavit was materially different from Mark’s contention on appeal. Accordingly,
Mark’s newly raised contention concerning the inclusion of knowingly false
information in the November affidavit is waived on appeal.
{¶28} Unlike Mark’s contentions concerning staleness, particularity, and
the inclusion of knowingly false information, Mark did argue before the trial court
that law enforcement exceeded the scope of the November search warrant.
(Docket No. 43, p. 10-11). In fact, the trial court considered and overruled that
argument in its decision on Mark’s motions to suppress. (Docket No. 45, p. 6).
Despite having raised that argument below and the trial court’s ruling thereon, we
find that Mark has waived the issue on appeal. Review of the record reveals that
Mark first raised the contention in a supplemental brief filed after the suppression
hearing. (Docket No. 43, p. 10-11). We find the timing of Mark’s contention runs
afoul of Crim.R. 47.
{¶29} As previously mentioned, Crim.R. 47, as it pertains to motions to
suppress, is designed to place the state on notice of the specific legal and factual
grounds upon which the validity of the search and seizure is challenged. Xenia at
219. This notice affords the state an opportunity to rebut the grounds upon which
the defendant is challenging the search and seizure. Here, due to the timing of
-16-
Case No. 1-11-18
Mark’s contention and the fact that the supplemental briefs were filed on the same
day, the State was not given an opportunity to present arguments and evidence to
rebut the same. Indeed, an officer’s testimony concerning the seizure of an item
allegedly not covered under the search warrant would be relevant in determining
whether the item at issue was covered under the search warrant or was otherwise
properly seized pursuant to a warrant exception, such as the plain view doctrine.
Furthermore, the fact that the trial court ruled on Mark’s contention, albeit in the
State’s favor, does not preclude the application of the waiver doctrine. The State
did not have the opportunity to present rebuttal arguments or evidence, which
consequently places the State at a severe disadvantage if this court were to
consider the merits of Mark’s contention. Accordingly, Mark’s contention that
law enforcement exceeded the scope of the November search warrant is waived on
appeal.
{¶30} Having determined that Mark has waived his contentions concerning
staleness, particularity, inclusion of knowingly false information, and the scope of
the search under the November search warrant, we turn our attention to Mark’s
remaining contentions, to wit: the April affidavit lacked probable cause to seize
handwritten materials; law enforcement exceeded the scope of the April search
warrant; and, the trial court erred in applying the good faith exception.
-17-
Case No. 1-11-18
Considering the nature of Mark’s remaining contentions, we will first address his
contention that law enforcement exceeded the scope of the April search warrant.
II. Scope of the April Search Warrant
{¶31} Mark contends that law enforcement exceeded the scope of the April
search warrant when it seized miscellaneous papers, handwritten journals, cash,
jewelry, credit cards, a briefcase, a safe, a disposable camera, and headphones.
Based on the following, we agree.
{¶32} “Appellate review of a motion to suppress presents a mixed question
of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
The trial court serves as the trier of fact and is the primary judge of the credibility
of the witnesses and the weight to be given to the evidence presented. State v.
Johnson, 137 Ohio App.3d 847, 850 (12th Dist. 2000). Therefore, when an
appellate court reviews a trial court’s ruling on a motion to suppress, it must
accept the trial court’s findings of fact when supported by competent, credible
evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100, citing
State v. Fanning, 1 Ohio St.3d 19, 20 (1982). The appellate court must then
review the application of the law to the facts de novo. Roberts, citing Burnside at
¶ 8.
{¶33} The Fourth Amendment of the United States Constitution, as applied
to the states through the Fourteenth Amendment, commands in relevant part, that
-18-
Case No. 1-11-18
no warrants shall issue except those particularly describing the things to be
seized.6 Consequently, the permissible scope of a search is governed by the terms
set forth in the search warrant. See Walter v. United States, 447 U.S. 649, 656,
100 S.Ct. 2395 (1980). “If the scope of the search exceeds that permitted by the
terms of a validly issued warrant or the character of the relevant exception from
the warrant requirement, the subsequent seizure is unconstitutional without more.”
Horton v. California, 496 U.S. 128, 140, 110 S.Ct. 2301 (1990). “While this does
not mean that every police action while inside a home must be explicitly
authorized by the text of the warrant, the Fourth Amendment does require that
police actions in execution of a warrant be related to the objectives of the
authorized intrusion.” (Citation omitted.) Wilson v. Layne, 526 U.S. 603, 611,
119 S.Ct. 1692 (1999).
{¶34} Since the permissible scope of a search is governed by the terms set
forth in the search warrant, we begin with the terms of the April search warrant.
Affidavit having been made before me by Sergeant C.W. Breitigan
that he has reason to believe that on the premises located at 860
Yorkshire Drive Lima, Allen County, Ohio * * *
***
[T]here is now being concealed certain property, namely
(1) Computers, computer components, computer peripherals, word
processing equipment, modems, monitors, printers, keyboards,
6
Article I, Section 14 of the Ohio Constitution contains a nearly identical provision. State v. Jones, 124
Ohio St.3d 1203, 2009-Ohio-6188, ¶ 29.
-19-
Case No. 1-11-18
cables, scanning equipment, information storage devices, including
but not limited to hard disc drives, remote disc drives, computer
compact disks, 3 ½ inch computer discs, zip disks, removable disk
cartridges, smart cards, computer tapes; (2) Any and all electronic
accounting records, in the form of computer generated logs of
criminal activity, including but not limited to diaries, journals,
calendars or computer system audit records; electronic mail
messages, opened and unopened, to or from co-conspirators,
associates or victims; computer account information, including but
not limited to computer host names and internet addresses, account
names, passwords, access telephone numbers, password files and
other information about computer systems, users, accounts and
related topics and documents that show ownership and control; (3)
any and all electronic communications including but not limited to
opened and unopened e-mail messages, instant messages (IM),
letters and other electronic records, documents, correspondence,
notes, memoranda, address lists, telephone directories, screen name
lists, buddy lists, advertisements, calendars, diaries, journals, telexes,
faxes, audio and visual tape recordings, any global positioning
systems, any computer(s), hardware, software and items used to
download information off a GPS tracking device(s)
[W]hich are * * * [E]vidence of the crime of Aggravated Murder,
O.R.C. 2903.01(A)
{¶35} A plain reading of the April search warrant’s terms reveals that law
enforcement could search and seize three different categories of items. The
parties’ do not dispute that the first category authorized the search and seizure of
computers and devices associated with the operation of computers (i.e., printers,
keyboards, information storage devices, etc.).7 The parties, however, disagree as
to the scope of items that could be searched for and seized pursuant to the second
7
The first category is delineated in the April search warrant by the number one in parentheses.
-20-
Case No. 1-11-18
and third categories.8 Accordingly, we will consider the second and third
categories.
{¶36} A plain reading of the second and third categories in the April search
warrant authorizes the search and seizure of electronic records, communications,
and documents. The second category reads, in relevant part, “[a]ny and all
electronic accounting records, in the form of computer generated logs of criminal
activity, including but not limited to diaries, journals, calendars or computer
system audit records.” (Emphasis added.). The third category reads, “any and all
electronic communications including but not limited to opened and unopened e-
mail messages, instant messages (IM), letters and other electronic records,
documents, correspondence, notes, memoranda, address lists, telephone
directories, screen name lists, buddy lists, advertisements, calendars, diaries,
journals, telexes, faxes * * *[.]” (Emphasis added.). An objectively reasonable
reading of these categories requires each category to be read in its entirety. See
United States v. Young, 263 Fed.Appx. 710, 714 (10th Cir.2008) (reading warrant
in its entirety to determine scope of the warrant). When the second and third
categories are read in their entirety, it is apparent that the terms “electronic” and
“computer generated” modify the terms that follow, which happen to include
“records,” “documents,” “diaries,” and “journals.” Accordingly, the second and
8
The second and third categories are delineated in the April search warrant by the numbers two and three
in parentheses, respectively.
-21-
Case No. 1-11-18
third categories authorized the search and seizure of electronic records,
communications, and documents.
{¶37} Our reading of the second and third categories is strengthened by
reference to the April affidavit prepared by Sergeant Breitigan. In particular, the
following language from the April affidavit supports the fact that law enforcement
primarily sought computer(s), computer related devices, and information stored in
computers and computer related devices (e.g., electronic records, communications,
and documents).
Based on the evidence summarized earlier in this affidavit, there is
reason to believe that Dr. Mark Wangler used computer(s) and
computer diskettes to store, maintain, retrieve and use electronic data
in the form of electronic records, documents and materials and that
he used the following data types
A. computer software used for criminal purposes;
B. account information (site names, internet addresses, account
names, screen names, passwords, telephone numbers and similar
items) of entities who were contacted by individual(s) at 860
Yorkshire Rd., Bath Township, Allen County, Ohio on the internet
for the purpose of furthering criminal activity; and
C. system accounting and audit logs which record the operations
occurring on that computer (including criminal activities)
D. GPS tracking systems[.] April Affidavit, p. 12.
Notwithstanding the foregoing language, the State maintains that the April
affidavit did not limit the form of the information being sought to electronic
-22-
Case No. 1-11-18
records, communications, and documents, citing the following language, which
appears in the April affidavit.
These terms records, documents and materials as used above include
all of the foregoing items of evidence in whatever form and by
whatever means such records, documents or materials, their drafts,
or their modifications may have been created or stored[.] April
Affidavit, p. 12.
While it is arguable that law enforcement sought information in electronic and
non-electronic forms, we note that this language was not included in the April
search warrant. We believe that the absence of this language in the April search
warrant reveals that the issuing magistrate intentionally limited the form of
information to be searched for and seized to electronic information.
{¶38} Accordingly, we find that the April search warrant was limited to
searching and seizing computers, computer related devices, and information stored
in computers and computer related devices (e.g., electronic records,
communications, and documents). Bearing this in mind, we turn our attention to
those items which Mark contends were seized outside the scope of the April
search warrant.
{¶39} Upon executing the April search warrant law enforcement seized
numerous computer related items, as well as miscellaneous papers, journals, cash,
jewelry, credit cards, a briefcase, a safe, a disposable camera, and headphones. At
trial, the State offered several of the miscellaneous papers and journals seized
-23-
Case No. 1-11-18
during the April search warrant, which were ultimately admitted into evidence.
Those miscellaneous papers and journals consisted of the following: a single piece
of paper, purportedly created by Mark, which contains a crude computer-generated
diagram of the death scene and typewritten notes concerning the possibility that
Kathy was trying to murder Mark (State’s Exhibit 43); a printed email dated April
19, 2005 from Dave Warren to Mark regarding the effect of divorce for someone
who is or wants to become a deacon in the church, and several printed resources
concerning same issue (State’s Exhibit 44); a bound journal book entitled “It’s Not
About Me Journal” which contains Mark’s handwritten responses to prompts
throughout the journal (State’s Exhibit 45); a large blue binder with the phrase
“Cosmetic Training Kit” on the outside and numerous pages of Mark’s
handwritten autobiographical notes and impressions of his relationship with Kathy
inside (State’s Exhibit 46); and, a bound journal book entitled “Revolve My
Journal On Life, Faith & Other Stuff” which contains approximately two hundred
pages filled with Mark’s handwritten journal entries dated between December 31,
2005 and December 31, 2006 (State’s Exhibit 47).9 Because the aforementioned
items were offered by the State at trial, and subsequently admitted into evidence,
9
For ease of discussion, we will refer to the paper with a diagram of the death scene and the email between
Mark and Dave Warren by the exhibit numbers assigned to each at trial (i.e., State’s Exhibit 43 and 44,
respectively). As for the remaining items, we will refer to those items as “the Journals.”
-24-
Case No. 1-11-18
we will consider whether these items were seized outside the scope of the April
search warrant.10
{¶40} We find that the seizure of State’s Exhibit 43 and 44 was within the
scope of the April search warrant. While the scope of the warrant is limited to
electronic records, communications, and documents, we find that an objective
reading of these categories also encompasses papers and documents that were
created on and printed from a computer, as such items are simply hardcopy forms
of an electronic record, communication, or document. Based on our prior
descriptions of State’s Exhibits 43 and 44, it is clear that each was created on and
printed from a computer. Consequently, each of these items, though in a hardcopy
form, is derived from an electronic document and electronic communication,
respectively, and therefore falls within the scope of the April search warrant.
{¶41} As for the Journals, we find that they do not fall within the scope of
the April search warrant. As previously mentioned, the Journals are handwritten
and contain nothing that would lead law enforcement to believe that they were
created on and printed from a computer like State’s Exhibits 43 and 44.
Consequently, the Journals do not constitute electronic records, communications,
10
Mark also contends that law enforcement exceeded the scope of the April search warrant when they
seized cash, jewelry, credit cards, a briefcase, a safe, a disposable camera, and headphones. While seizure
of the aforementioned items undoubtedly exceeded the scope of the April search warrant, these items were
neither offered by the State in order to prove Mark’s guilt, nor is there evidence that the items resulted in
the discovery of evidence offered by the State to prove Mark’s guilt. Consequently, Mark was not
prejudiced by the improper seizure of the aforementioned items.
-25-
Case No. 1-11-18
or documents, and therefore were seized outside the scope of the April search
warrant.
{¶42} Given the foregoing, we find that the search and seizure of the
Journals was outside the scope of the April search warrant.
{¶43} The State argues that even if the Journals were outside the scope of
the April search warrant, law enforcement properly seized the Journals because
they were closely related to the crime being investigated. In support, the State
relies on a prior decision of this court, State v. Fields, 29 Ohio App.2d 154 (3d
Dist. 1971).
{¶44} In Fields, defendant and an accomplice snatched a woman’s purse
from her person. A passerby witnessed the robbery and attempted to apprehend
defendant and his accomplice. In doing so, the defendant shot and killed the
passerby with a .38 caliber revolver. A search warrant was later issued for the
seizure of a .38 caliber revolver and a purse. Law enforcement executed the
warrant on the accomplice’s residence, but was unable to locate a .38 caliber
revolver or a purse. Law enforcement did, however, locate and seize a spent .38
caliber shell. Before trial, defendant moved to suppress the shell arguing that it
was not specifically described in the warrant, but the trial court overruled
defendant’s motion and the defendant was later convicted of the passerby’s
murder. Defendant appealed the trial court’s decision denying his motion to
-26-
Case No. 1-11-18
suppress. On appeal, this court affirmed, finding that items not explicitly listed in
a search warrant, like the shell, may be lawfully seized during the execution of a
search warrant if: (1) based upon evidence known to law enforcement the articles
seized were closely related to the crime being investigated; or, (2) law
enforcement had reasonable cause to believe the items seized were
instrumentalities of the crime. Fields at 160-61.
{¶45} Having considered Fields, we note that this court’s holding in Fields
as it pertains to the seizure of items outside the scope of the search warrant is
merely an early variation of the plain view doctrine. Several years after this
court’s opinion in Fields, this court implicitly recognized that its holding in Fields
had been superseded by the Ohio Supreme Court’s decision in State v. Williams,
55 Ohio St.2d 82 (1978). State v. Bika, 3d Dist. No. 9-78-06 (Oct. 19, 1978).
Accordingly, we will apply the plain view doctrine as set forth in Williams.
{¶46} In order for evidence to be seized under the plain view doctrine the
prosecution must demonstrate that (1) the initial intrusion which afforded the
authorities the plain view was lawful; (2) the discovery of the evidence was
inadvertent; and (3) the incriminating nature of the evidence was immediately
apparent to the seizing authorities. Williams at paragraph one of the syllabus. In
State v. Halczyszak, 25 Ohio St.3d 301 (1986), a divided court modified the
second and third elements of the plain view doctrine set forth in Williams. The
-27-
Case No. 1-11-18
“inadvertent discovery” requirement can be satisfied when law enforcement “lack
antecedent probable cause, i.e., an advance particularized knowledge of, or intent
to seize, those objects ultimately seized.” Id. at paragraph two of the syllabus.
The “immediately apparent” requirement can be satisfied when law enforcement
has “probable cause to associate an object with criminal activity.” Id. at paragraph
three of the syllabus. Additionally, law enforcement may rely on their specialized
knowledge, training and experience when determining whether an object is
associated with criminal activity. Id. at paragraph four of the syllabus.
{¶47} The State contends that the Journals were properly seized under the
plain view doctrine because the Journals contained information establishing
motive, i.e., the state of Mark and Kathy’s marriage. While the Journals may have
been relevant in establishing motive, the allegedly incriminating nature of the
Journals was not immediately apparent to law enforcement during the execution of
the April search warrant, as evidenced by the following colloquy during the
suppression hearing:
[Defense Counsel:] So, you’re saying that you knowingly took
financial paperwork from the house knowing that it wasn’t relevant?
[Sergeant Breitigan:] I took everything together as one as they were
together so that they could be reviewed, sorted, separated.
[Defense Counsel:] So, you just grabbed every piece of paper, took
it back to your office so you could look at it later, is that correct?
[Sergeant Breitigan:] Not every piece of paper, no.
-28-
Case No. 1-11-18
[Defense Counsel:] All right. But you took all the pieces of paper
that were set forth in items 31, 32, 33, 34, 25 [of the inventory
sheet], correct?11
[Sergeant Breitigan:] Did take those, yes.
[Defense Counsel:] All right. But you didn’t look through them to
determine whether they were within the scope of the search warrant
at the time you took them, did you?
[Sergeant Breitigan:] No, they’re included with other paperwork
that was included in the scope of this warrant. Suppression Hearing
Tr., p. 53-54.
Clearly, law enforcement was unaware of the content at the time the Journals were
seized. The allegedly incriminating nature of the Journals only became apparent
sometime after the search had been completed, and consequently was not
immediately apparent to law enforcement at the time they discovered the Journals.
Therefore, the Journals were not properly seized under the plain view doctrine.
{¶48} Given the foregoing, we find that the Journals were improperly
seized under the April search warrant, and therefore erroneously admitted during
trial. In so finding, Mark’s remaining contentions concerning a lack of probable
cause to seize handwritten materials (i.e., the Journals) and the application of the
good faith exception are moot and we decline to address them. See App.R.
12(A)(1)(c).
11
Items 31, 32, and 33 in the inventory sheet correspond to the Journals.
-29-
Case No. 1-11-18
{¶49} Though we have determined that the Journals should have been
suppressed, Mark contends that all of the items seized under the April search
warrant should have been suppressed because law enforcement flagrantly
disregarded its terms. In support, Mark relies on a case from the Tenth Circuit
Court of Appeals, United States v. Medlin, 842 F.2d 1194 (10th Cir.1988),
wherein the court held that blanket suppression was warranted where law
enforcement flagrantly disregarded the terms of the search warrant by seizing 667
items which were not identified in the warrant. The holding in Medlin, however,
is not binding upon this court, and even if it were, we do not find law enforcement
actions in this instance to be so flagrant as to warrant blanket suppression.
{¶50} Finally, having determined that the Journals were improperly seized,
and consequently erroneously admitted at trial, we must determine whether the
error was harmless or prejudicial.12 “Error in the admission of evidence is
harmless if there is no reasonable possibility that the evidence may have
contributed to the accused’s conviction. In order to hold the error harmless, the
court must be able to declare a belief that the error was harmless beyond a
reasonable doubt.” State v. Bayless, 48 Ohio St.2d 73 (1978), paragraph seven of
the syllabus, vacated in part on other grounds, 438 U.S. 911, 98 S.Ct. 3135(1978). “[C]ases where imposition of harmless error is appropriate must involve
12
Notably, Mark advances no arguments that admission of the Journals was prejudicial. Despite the
absence of such arguments, we are nevertheless compelled to determine whether admission of the Journals
at trial resulted in harmless or prejudicial error.
-30-
Case No. 1-11-18
either overwhelming evidence of guilt or some other indicia that the error did not
contribute to the conviction.” State v. Rahman, 23 Ohio St.3d 146, 151 (1986),
quoting State v. Ferguson, 5 Ohio St.3d 160, 166 (1983), fn. 5. When considering
whether error is harmless, the reviewing court’s judgment should be based on its
own reading of the record and on what it determines is the probable impact the
evidence had on an average jury. State v. Kidder, 32 Ohio St.3d 279, 284 (1987),
citing Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726 (1969). For the
following reasons, we conclude that the admission of the Journals was harmless
beyond a reasonable doubt.
{¶51} Throughout its case-in-chief the State drew the jury’s attention to the
ruinous state of Mark and Kathy’s marriage, arguing that it was a motivating
factor for Kathy’s murder. At the beginning of its case-in-chief, the State called
several witnesses who testified in some detail about the difficulties Mark and
Kathy were experiencing in their marriage prior to Kathy’s death. At the end of
the State’s case-in-chief, the State revisited Mark and Kathy’s marital difficulties.
This time, however, the State had Sergeant Breitigan read aloud select entries from
the Journals. Though the entries read aloud provided a more detailed insight into
Mark and Kathy’s marital difficulties, we find that those entries and the Journals
as a whole were cumulative in nature, and therefore harmless, since the jury had
-31-
Case No. 1-11-18
already heard testimony from several witnesses concerning the ruinous state of the
marriage.
{¶52} In addition to the Journals being cumulative, the Journals contained
many entries that were favorable to Mark. While the State selected entries that
captured the ruinous state of Mark and Kathy’s marriage, many other entries
revealed that Mark remained hopeful about his marriage and made great efforts to
improve his marriage. The existence of these favorable entries was brought to
light during Sergeant Breitigan’s cross-examination.
[Defense Counsel:] And throughout [the Journals] Mark prays for a
good relationship with his wife, correct?
[Sergeant Breitigan:] Yes, he does.
[Defense Counsel:] And he prays for strength from the Lord to help
him work on the relationship?
[Sergeant Breitigan:] Yes.
[Defense Counsel:] And he prays that his wife will also sort of see
the way and work on the relationship too, doesn’t he?
[Sergeant Breitigan:] Yes. Trial Tr., 2064.
In addition to the entries alluded to in the foregoing colloquy, there were
numerous entries from the days, weeks, and months following Kathy’s death in
which Mark repeatedly discusses his grief and how much he misses Kathy.
Because the Journals contained many entries favorable to Mark and the jury was
made aware of such entries during Sergeant Breitigan’s cross-examination, we do
-32-
Case No. 1-11-18
not believe that there was a reasonable possibility that the Journals contributed to
Mark’s conviction.
{¶53} Given the foregoing, we conclude that the admission of the Journals
was harmless beyond a reasonable doubt.
{¶54} Accordingly, we overrule Mark’s first assignment of error.
Assignment of Error No. II
{¶55} In his second assignment of error, Mark contends that the trial court
erred when it determined that the tests performed by the Lab and the testimony of
its employees were admissible. Specifically, Mark contends that the tests
performed by the Lab were unreliable, and therefore inadmissible under Evid.R.
702(C). In the alternative, Mark contends that even if the tests performed by the
Lab and the testimony of its employees are admissible, such evidence should have
been excluded pursuant to Evid.R. 403(A)’s balancing test. Based on the
following, we disagree.
A. Admissibility of the Lab’s Testing and Expert Testimony
{¶56} The admissibility of expert testimony is a matter committed to the
sound discretion of the trial court, and the trial court’s ruling will not be
overturned absent an abuse of that discretion. Valentine v. Conrad, 110 Ohio
St.3d 42, 2006-Ohio-3561, ¶ 9. A trial court will be found to have abused its
discretion when its decision is contrary to law, unreasonable, not supported by the
-33-
Case No. 1-11-18
evidence, or grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-
278, ¶ 16-18, citing Black’s Law Dictionary 11 (8 Ed.Rev.2004). When applying
the abuse of discretion standard, a reviewing court may not simply substitute its
judgment for that of the trial court. State v. Nagle, 11th Dist. No. 99-L-089, (June
16, 2000), citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶57} Generally, “courts should favor the admissibility of expert testimony
whenever it is relevant and the criteria of Evid.R. 702 are met.” State v. Nemeth,
82 Ohio St.3d 202, 207 (1998). Evid.R. 702, which governs the admissibility of
expert testimony, provides:
A witness may testify as an expert if all of the following apply:
(A) The witness’ testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a
misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge,
skill, experience, training, or education regarding the subject matter
of the testimony;
(C) The witness’ testimony is based on reliable scientific, technical,
or other specialized information. To the extent that the testimony
reports the result of a procedure, test, or experiment, the testimony is
reliable only if all of the following apply:
(1) The theory upon which the procedure, test, or experiment is
based is objectively verifiable or is validly derived from widely
accepted knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably
implements the theory;
-34-
Case No. 1-11-18
(3) The particular procedure, test, or experiment was conducted in
a way that will yield an accurate result.
{¶58} Here, there is no question or dispute that the subject about which Dr.
Schauer testified is beyond the knowledge or experience of lay persons and that
Dr. Schauer’s credentials and experience qualify him to testify as an expert.
Evid.R. 702(A), (B). Accordingly, the sole issue is whether the testing performed
by the Lab is reliable under Evid.R. 702(C).
{¶59} In determining whether the opinion of an expert is reliable under
Evid.R. 702(C), a trial court, acting as a gatekeeper, examines whether the
expert’s conclusion is based on scientifically valid principles and methods.
Valentine at ¶ 16, citing Miller v. Bike Athletic Co., 80 Ohio St.3d 607 (1998).
“In evaluating the reliability of scientific evidence, several factors are to be
considered: (1) whether the theory or technique has been tested, (2) whether it has
been subjected to peer review, (3) whether there is a known or potential rate of
error, and (4) whether the methodology has gained general acceptance.” Miller at
611, citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94,
113 S.Ct. 2786 (1993). Although these factors may aid in determining reliability,
none of the factors are dispositive as the inquiry is flexible. Id., citing Daubert at
594. Ultimately, the focus is “solely on principles and methodology, not on the
conclusions that they generate.” Id., quoting Daubert at 595.
-35-
Case No. 1-11-18
{¶60} In the case sub judice, the trial court held a Daubert hearing to
determine whether the testing performed by the Lab and Dr. Schauer’s testimony
concerning the same was reliable. In determining the reliability of the testing
performed by the Lab, the trial court considered the factors set forth in Daubert.
See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153, 119 S.Ct. 1167 (1999)
(“[W]hether Daubert’s specific factors are, or are not, reasonable measures of
reliability in a particular case is a matter that the law grants the trial judge broad
latitude to determine.”). As to the first factor, whether the theory or technique had
been tested, the trial court found that “the testing was done subject to standard
protocol and has been objectively tested[,]” and that “[t]he type of testing has been
done all over the world and accepted.” (Docket No. 204, p. 3). As to the second
factor, whether the theory or technique has been subjected to peer review, the trial
court found that “other research groups have used the same and similar testing and
the same has been subject to much peer review.” (Id.). As to the third factor,
whether there is a known or potential rate of error, the trial court found that the
error rate did “not affect the reliability of the testing and the conclusions.” (Id.).
As to the fourth factor, whether the methodology has gained general acceptance,
the trial court found that “[t]he methodology has been generally accepted in the
scientific community, as well as the [United States] E.P.A.[,] National
-36-
Case No. 1-11-18
Organizations[,] and world wide (sic) organizations.”13 (Id. at p. 4). Based on its
consideration of the factors set forth in Daubert, the trial court concluded that
“[t]he State * * * presented sufficient evidence to support the reliability of its
expert’s theory/testing under Evid.R. 702.” (Id.).
{¶61} Despite the trial court’s determination concerning the reliability of
the testing performed by the Lab, Mark contends that the testing and testimony of
the Lab’s employees do not meet any of the factors set forth in Daubert.
{¶62} First, Mark contends that the methodology underlying the testing
performed by the Lab (“the methodology”) has never been tested. Contrary to
Mark’s contention, Dr. Schauer’s testimony establishes that the methodology has
been tested. Generally, the methodology involves chemical analysis of a soot
sample to determine the soot’s origin, i.e., whether the soot originated from things
such as burning wood, cooking food, cigarette smoke, or an engine. According to
Dr. Schauer, when an item or substance is burned the resulting soot contains
specific chemical compounds known as molecular tracers, which, when viewed
together, form a chemical fingerprint that is used to trace the soot to its origin. On
direct examination, Dr. Schauer testified that the methodology is born from
decades of research performed by him and other scientists throughout the world.
Dr. Schauer testified that the methodology has been tested and replicated by other
13
“EPA” as used throughout this opinion refers to the United States Environmental Protection Agency.
-37-
Case No. 1-11-18
laboratories around the world. Later, during cross-examination, Dr. Schauer was
asked whether he created the methodology used in this case. In response, Dr.
Schauer denied that he created the methodology explaining that it “is built upon
knowledge that exists in the community” and that it “[has] been approved by a
quality assurance officer at the U.S. EPA.” Daubert Tr., p. 79-80. Given the
foregoing, we find that the trial court did not err when it found that the
methodology was tested.
{¶63} Although the record contains ample evidence that the methodology
has been tested, Mark, nevertheless, maintains that Dr. Schauer’s lack of
experience in using wipe samples and testing samples taken from duct work is
evidence that the methodology has never been tested. While Dr. Schauer testified
that he had never tested wipe samples taken from duct work, we are not persuaded
that his lack of experience has any bearing on determining whether the
methodology has been tested. First, Mark does not explain how Dr. Schauer’s
experience (or lack thereof) relates to determining whether the methodology has
been tested. Second, Mark cites no authority in support of his position. Simply
because Dr. Schauer had not personally analyzed soot collected from duct work
using a wipe sample does not mean the methodology employed by the Lab in the
case sub judice has not been tested.
-38-
Case No. 1-11-18
{¶64} Moreover, while Mark contends that use of wipe samples has not
been tested, review of the record reveals otherwise. A chemist employed with the
Lab, Mark Mieritz (“Mieritz”), collected all of the wipe samples.14 When
questioned whether he developed the wipe method Mieritz responded “I applied it.
I didn’t really develop it. It’s used all the time in PCB analysis under EPA
protocol. That uses a gauze and measures a specific area.”15 Trial Tr., p. 1841.
While the Lab used quartz fiber wipes as opposed to gauze, there is no evidence
that this seemingly minor difference materially altered the methodology’s
reliability. In addition to the EPA’s use of wipe samples, one of the Mark’s
experts, Frederick Teeters, testified that he had used wipe samples to determine
the origin of chemical compounds found in pollutants. Trial Tr., p. 2640.
{¶65} Next, Mark contends that the testing performed by the Lab has not
been subject to peer review. In support, Mark notes that at several points
throughout the course of the Daubert hearing Dr. Schauer testified that he was not
aware of publications concerning the following: whether molecular tracers can be
used to establish the presence of CO; whether testing the outside of the duct work
was a valid control to compare against the presence of molecular tracers inside of
14
There is no evidence that Dr. Schauer collected any of the wipe samples.
15
Polychlorinated Biphenyl, which is colloquially known as PCB, is defined as “any of several compounds
that are produced by replacing hydrogen atoms in biphenyl with chlorine, have various industrial
applications, and are toxic environmental pollutants which tend to accumulate in animal tissues.” Merriam-
Webster (2012), http://www.merriam-webster.com/dictionary/polychlorinated+biphenyl?show=0&t=13463
37023 (accessed October 15, 2012).
-39-
Case No. 1-11-18
the duct work; and, whether a wipe could be used to determine the presence of
molecular tracers a year or more before the wipe was taken. Though Dr. Schauer
was unable to cite any publications concerning the foregoing, we are not
persuaded that Dr. Schauer’s inability to cite to such publications establishes that
the methodology has not been subject to peer review.
{¶66} First, the existence of publications concerning whether molecular
tracers can show the presence of CO is immaterial in determining the reliability of
the methodology. Dr. Schauer never testified that the testing was capable of
showing the presence of CO. Instead, the presence of CO was established though
the Lab’s determination that the soot found throughout the duct work originated
from an engine, the exhaust of which contains CO.
{¶67} Similarly, the existence of publications concerning whether a wipe
could be used to determine the presence of molecular tracers a year or more before
the wipe was taken is immaterial in determining the reliability of the methodology.
Although Dr. Schauer testified that he was aware of individuals who had used
wipe samples to determine the presence of molecular tracers a year or more before
the samples were taken, he never testified that the methodology employed by the
Lab could determine such information. In fact, Dr. Schauer testified to the
contrary. See Daubert Tr., p. 42. Given Dr. Schauer’s testimony, we fail to see
the significance in Dr. Schauer’s inability to cite publications establishing that
-40-
Case No. 1-11-18
wipe samples could be used to determine the presence of molecular tracers a year
or more before the sample was taken.
{¶68} As for publications concerning the use of the outside of the duct
work as a control to compare against the presence of molecular tracers inside of
the duct work, Mark contends that Dr. Schauer knew of no such publications.
Mark’s contention misconstrues Dr. Schauer’s testimony. When questioned about
publications concerning the use of the outside of the duct work as a control to
compare against the presence of molecular tracers inside of the duct work Dr.
Schauer responded, “I’m sure I could find one for you, but I can’t recall one off
the top of my head right now.” Daubert Tr., p. 92. Considering Dr. Schauer’s
response, it appears that he was aware of publications covering the requested
subject matter, but merely could not remember the title or author(s) of those
publications. While production or description of such publications may have been
beneficial to determining the reliability of the methodology, we do not believe that
Dr. Schauer’s inability to specifically recall the publications rendered the
methodology unreliable. Furthermore, even if Dr. Schauer testified that he was
not aware of any publications concerning the requested subject matter, the
existence of publications (or lack thereof) is not dispositive when assessing the
reliability of a scientific method. Daubert, 509 U.S. at 594, 113 S.Ct. 2786.
-41-
Case No. 1-11-18
{¶69} Notwithstanding Dr. Schauer’s inability to present peer-reviewed
literature on every detail of the methodology, the record contains ample evidence
that the testing conducted by the Lab has been subject to peer review. While
Mark’s contention focuses on Dr. Schauer’s inability to cite publications
supporting the methodology, we note that publication is not a sine qua non of
admissibility, but one element of peer review. Daubert at 593. During the
Daubert hearing, Dr. Schauer testified that he has authored and coauthored
numerous publications concerning the use of molecular tracers to trace soot to its
origin. Indeed, review of Dr. Schauer’s curriculum vitae, which was admitted
during the Daubert hearing, corroborates Dr. Schauer’s testimony. In addition,
Dr. Schauer testified that the methodology has been adopted by other laboratories,
as well as being used to verify other methods designed to detect and use molecular
tracers to trace soot and other particulate matter to its origin. Given the foregoing,
we find that the trial court did not err when it found that the methodology has been
subject to peer review.
{¶70} Next, Mark contends that Dr. Schauer could not identify a known
error rate. Indeed, review of the record reveals that Dr. Schauer was unable to
testify to a known error rate. However, the lack of a known error rate is not fatal
to the methodology’s reliability. Daubert instructs that the court may also
consider the potential rate of error. Daubert at 594. During the Daubert hearing,
-42-
Case No. 1-11-18
Dr. Schauer testified that when testing for the existence of molecular tracers there
is an uncertainty (which appears to be a synonym for error rate) associated with
accurately identifying each individual molecular tracer. Although Dr. Schauer
was unable to recall the exact uncertainty for each molecular marker he did testify
that the uncertainties for the molecular tracers detected in the soot analyzed by the
Lab were in the range of 10 to 20 percent. Given this testimony, we cannot
conclude that the uncertainties testified to by Dr. Schauer render the methodology
unreliable. Consequently, we find that the trial court did not err when it found that
the uncertainties did “not affect the reliability of the testing and the conclusions.”
(Docket No. 204, p. 3).
{¶71} Last, Mark contends that the methodology has not gained general
acceptance. Contrary to Mark’s contention, the record reveals that the
methodology has gained general acceptance. Prior to contacting the Lab, law
enforcement contacted several laboratories inquiring about their ability to test for
and detect particles emitted from an engine. Mark argues that the difficulty in
finding a laboratory to perform the desired testing indicates that the testing, and
consequently the methodology, has not gained general acceptance. We disagree.
{¶72} First, difficulty experienced by law enforcement in locating a
laboratory capable of performing the requested testing is not indicative of whether
a particular methodology is generally accepted. There are other more reasonable
-43-
Case No. 1-11-18
explanations as to why law enforcement had difficulty locating a laboratory
capable of performing the requested testing, reasons which have no bearing on
whether the methodology is generally accepted. For instance, law enforcement
was unaware whether the testing they requested could be done, let alone whether a
particular laboratory could perform the requested testing. Consequently, it is not
at all surprising that law enforcement experienced difficulty in finding a laboratory
that could perform the requested testing.
{¶73} Notwithstanding the difficulty of finding a laboratory capable of
performing the requested testing, the record reveals that the methodology has been
generally accepted. Dr. Schauer testified that many research groups use the
methodology, as well as government agencies such as the United States EPA.
Given the foregoing, we find that the trial court did not err when it found that the
methodology has been generally accepted.
{¶74} Having found no error with regard to the trial court’s findings under
the Daubert factors, we find that the trial court did not abuse its discretion when it
concluded that the methodology was reliable.
{¶75} Though we have found no error with regard to the trial court’s
determination that the methodology is reliable, Mark contends the analytical gap
between the data derived from the testing and Dr. Schauer’s conclusions is too
great, and therefore should have been excluded.
-44-
Case No. 1-11-18
{¶76} In addition to being reliable, Evid.R. 702(C) requires that the data
generated by the methodology at issue support the expert’s opinion. Valentine,
110 Ohio St.3d 42, 2006-Ohio-3561, at ¶ 18. “A court may conclude that there is
simply too great an analytical gap between the data and the opinion proffered.”
Id., quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512 (1997).
While scientists may certainly draw inferences from a body of work, a trial court
must ensure that any extrapolation accords with scientific principles and methods.
Valentine at ¶ 18.
{¶77} Based on the testing performed by the Lab, it was Dr. Schauer’s
opinion that exhaust from an engine had been directly introduced into the duct
work. The trial court concluded that Dr. Schauer’s “opinions are not speculative
and his opinions are based upon sufficient facts and data and the product of
reliable principles and methods.” (Docket No. 204, p. 4). We agree.
{¶78} Dr. Schauer’s opinion concerning the origin of the soot does not
present too great an analytical leap from the underlying data. Dr. Schauer testified
that analysis of the wipe samples taken from the items submitted for analysis,
particularly the duct work, revealed the existence of hopanes, steranes, and
polycyclic aromatic hydrocarbons (“PAHs”). Dr. Schauer testified that alone
these molecular tracers provide little or no guidance concerning the origin of the
soot in which they were found. Rather, Dr. Schauer testified that the molecular
-45-
Case No. 1-11-18
tracers detected in a soot sample must be viewed together to determine the
chemical fingerprint. Once the chemical fingerprint has been identified it can be
matched to known chemical fingerprints which have been discovered through
decades of research. Here, the Lab was able to identify the chemical fingerprint of
the soot found in the duct work from the combination of molecular tracers. Dr.
Schauer testified that the chemical fingerprint was similar to the known chemical
fingerprint associated with soot found in exhaust emitted from an engine. Given
the foregoing, we find that the Dr. Schauer’s opinion as to the origin of the soot is
reasonably drawn from the underlying data.
{¶79} Additionally, Dr. Schauer’s opinion concerning the exhaust having
been directly introduced into the duct work does not present too great an analytical
leap from the underlying data. In reaching this opinion, Dr. Schauer appears to
have relied on several pieces of data. First, Dr. Schauer, having measured the
concentration of soot found on the inside surface the duct work, considered how
long it would have taken that soot to accumulate using depositional velocities.
Based on the testimony adduced during the Daubert hearing and trial, it appears
that depositional velocities, which vary depending on the environment and
location, are the rate at which particles suspended in the air deposit on a surface.
Upon consideration of the appropriate depositional velocities, Dr. Schauer
determined that the soot samples collected from the inside surface were deposited
-46-
Case No. 1-11-18
over a short period of time. In addition to this data, Dr. Schauer also considered
photographs depicting a V-shaped soot mark above the register in Kathy’s
bedroom, soot stained carpet which surrounded the vent in Kathy’s bedroom, and
soot marks around openings where two sections of duct work were joined.
Although Mark challenges Dr. Schauer’s ability to view photographs and
determine whether something was directly introduced into the duct work, the
record reveals that Dr. Schauer’s experience qualifies him to reach such a
conclusion. In particular, Dr. Schauer testified that he has conducted several field
studies wherein he has become familiar with soot deposition within a building, as
well as the means by which soot enters and circulates throughout a building (i.e.,
via the ventilation system or via the intrusion of ambient air from outside a
building). Based on the soot patterns depicted in the photographs, Dr. Schauer
determined that a high concentration of soot traveled through the ventilation
system. Given the foregoing, we find that Dr. Schauer’s opinion as to the how the
soot was introduced into the duct work is reasonably drawn from the underlying
data.
{¶80} Accordingly, we find that the trial court did not err when it found
that Dr. Schauer’s opinions were reasonably drawn from the underlying data.
-47-
Case No. 1-11-18
{¶81} In light of the foregoing, we find that the trial court did not abuse its
discretion by allowing the jury to consider the testing performed by the Lab and
the testimony of the Lab’s employees.
B. Evid.R. 403(A)
{¶82} Mark contends that even if the Lab’s testing and the testimony of the
Lab’s employees is relevant and reliable, the evidence should have been excluded
pursuant to Evid.R. 403(A). Based on the following, we disagree.
{¶83} An appellate court reviews the trial court’s decision on the admission
of evidence for an abuse of discretion. State v. Heft, 3d Dist. No. 8-09-08, 2009-
Ohio-5908, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). As previously
mentioned, a trial court will be found to have abused its discretion when its
decision is contrary to law, unreasonable, not supported by the evidence, or
grossly unsound. See Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶ 16-18, citing
Black’s at 11. When applying the abuse of discretion standard, a reviewing court
may not simply substitute its judgment for that of the trial court. Nagle, 11th Dist.
No. 99-L-089, (June 16, 2000), citing Blakemore, 5 Ohio St.3d at 219 (1983).
{¶84} Evid.R. 402 provides that relevant evidence is generally admissible
except as otherwise provided by the rules of evidence and other laws or statutes.
Evid.R. 401 defines relevant evidence as “evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action
-48-
Case No. 1-11-18
more probable or less probable than it would be without the evidence.” Evid.R.
403(A) provides that relevant evidence is not admissible “if its probative value is
substantially outweighed by the danger of unfair prejudice, of confusion of the
issues, or of misleading the jury.”
{¶85} Mark contends that the unfair prejudice resulting from the admission
of the Lab’s testing and testimony of the Lab’s employees stems from the strong
risk that the jury considered the Lab’s results as conclusive evidence that exhaust
from an engine was introduced into the duct work. In particular, Mark contends
that finding hopanes, steranes, and PAHs in the duct work is irrelevant and
unreliable in proving causation because those molecular tracers are found
everywhere in the environment and therefore their existence in the duct work in no
way establishes that a crime was committed. As previously discussed, the Lab’s
determination of the soot’s origin was not predicated on a single molecular tracer,
but a collection of specific molecular tracers which form a chemical fingerprint,
which, in turn, is used to determine the soot’s origin. Accordingly, while it may
be common to find individual hopanes, steranes, and PAHs throughout the
environment, it is less common to find them together in the same soot sample
forming a chemical fingerprint which research has shown to be associated with
exhaust from an engine. Furthermore, the Lab’s results revealed that there was an
abnormally high amount of hopanes, steranes, and PAHs found in the soot samples
-49-
Case No. 1-11-18
taken from the duct work, as well as visual evidence that a high concentration of
soot traveled through the duct work. This evidence tends to support the
conclusion that the exhaust was directly introduced into the duct work. Given the
foregoing, we do not find that the probative value of the Lab’s testing and the
testimony of the Lab’s employees is outweighed by the “danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.” Evid.R. 403(A).
{¶86} Accordingly, we overrule Mark’s second assignment of error.
Assignment of Error No. III
{¶87} In his third assignment of error, Mark contends that the trial court
erred when it prohibited his expert, Frederick Teeters (“Teeters”), from testifying
about candle soot in the Wangler residence. Mark contends that Teeters was
qualified to testify about whether the soot found in the Wangler residence
originated from burning candles. According to Mark, Teeters would have testified
that the chemical fingerprint associated with soot emitted from burning candles is
similar to the chemical fingerprint associated with soot emitted from an engine,
and that the soot found in the Wangler residence, while seemingly from an engine,
was, in fact, from burning candles. Based on the following, we disagree.
{¶88} Under Evid.R. 702(B), a witness may qualify as an expert by reason
of his or her knowledge, experience, skill, training, or education. “Neither special
education nor certification is necessary to confer expert status upon a witness. The
-50-
Case No. 1-11-18
individual offered as an expert need not have complete knowledge of the field in
question, as long as the knowledge she possesses will aid the trier-of-fact in
performing its fact-finding function. Pursuant to Evid.R. 104(A), the trial court
determines whether an individual qualifies as an expert, and that determination
will be overturned only for an abuse of discretion.” (Citations omitted.) State v.
Baston, 85 Ohio St.3d 418, 423 (1999).
{¶89} At trial, prior to Teeters’ testimony, the State moved the trial court to
exclude his testimony arguing that he did not qualify as an expert in the subject
matter at issue. In response to the State’s motion, the trial court held a Daubert
hearing outside the presence of the jury.
{¶90} During the Daubert hearing, Teeters testified that he has over forty
years of experience in solving fluid flow problems and porous media. Teeters
testified that much of his experience involved analyzing chemicals in fluids and
using molecular tracers, which included hopanes and steranes, to determine the
chemicals’ origin. Prior to trial, Teeters apparently analyzed the data generated
from the testing performed by the Lab in an effort to independently determine the
origin of the soot tested by the Lab.16 Teeters testified that the analysis he
16
Upon review of the record, it appears that Teeters authored two reports. See Trial Tr., p. 2617, 2625.
One report apparently dealt with candle soot in residential buildings and whether the soot found in the
Wangler residence originated from burning candles. Id. at p. 2617. The other report apparently dealt with
a comparison of soot found in the exhaust emitted from a RV parked in the Wangler driveway on the night
of Kathy’s death with soot found in a blue flex hose. Id. The reports, however, were neither admitted into
evidence nor proffered by Mark. Consequently, our knowledge of the reports’ content is limited to the
testimony adduced during the Daubert hearing.
-51-
Case No. 1-11-18
conducted in the case sub judice did not significantly differ from work he has done
in the past. According to the testimony, it appears that Teeters devoted a sizeable
portion of one of his reports to discussing candle soot in residential buildings and
whether the soot found in the Wangler residence originated from burning candles.
Teeters, however, testified that he does not consider himself to be an expert in
candle soot. Teeters also testified that he has never conducted experiments or
worked with candle soot. Rather, Teeters testified that his knowledge about
candle soot was derived from articles he found on the internet and at libraries.
Based on the foregoing testimony, the trial court found that Teeters “has no
qualifications to be * * * an expert relative to candle soot in the house[,]” but
found that Teeters was qualified to testify about “tracing biomarkers and
emissions.” Trial Tr., p. 2636.
{¶91} Though we may have come to a different conclusion, we find that the
trial court did not abuse its discretion when it precluded Teeters from testifying
about candle soot. Indeed, Teeters’ testimony established that he had extensive
experience in tracing chemicals, particularly those found in fluids, to their origin.
However, Teeters lacked experience working with candle soot, a fact he conceded
during the Daubert hearing. Lack of personal knowledge concerning candle soot,
while seemingly insignificant considering Teeters’ experience with tracing
chemicals to their origin, is nevertheless a reasonable ground to exclude testimony
-52-
Case No. 1-11-18
concerning candle soot. As previously discussed, soot contains a chemical
fingerprint (i.e., a collection of specific molecular tracers) which is used to
determine the soot’s origin. Since Teeters had no experience working with candle
soot it is reasonable for the trial court to infer that Teeters would not be aware of
the chemical fingerprint or fingerprints associated with candle soot. Moreover,
there is no indication that the internet and library resources that Teeters relied on
contained information concerning the chemical fingerprint or fingerprints
associated with candle soot, as such information was not adduced during the
Daubert hearing nor did Mark proffer the same.17 Given the foregoing, we find
that the trial court did not abuse its discretion.
{¶92} Moreover, in light of other testimony presented during the defense’s
case-in-chief, we find that the trial court’s ruling concerning the scope of Teeters’
testimony did not prejudice Mark. Prior to Teeters’ testimony, the defense called
Robert Wabeke (“Wabeke”). Wabeke testified that most candles are made of
paraffin wax, which is a derivative of crude oil. As a result, Wabeke explained
that one would expect to find similar molecular tracers in soot from a burning
candle and soot from an engine. To demonstrate the similarity, Wabeke
performed a test to determine the chemical composition of eight different types of
17
In his reply brief, Mark states that Teeters compared the chemical signature from candles removed from
the Wangler residence to the chemical fingerprint which Dr. Schauer interpreted as being associated with
soot found in exhaust emitted from an engine. Mark, however, fails to support this statement with a
citation to the record. App.R. 16(A)(7).
-53-
Case No. 1-11-18
candles.18 Focusing on hopanes, steranes, and PAHs, Wabeke testified that the
chemical fingerprints from soot samples collected from each candle were not
homogeneous. For example, the soot from one candle contained hopanes and
steranes but no PAHs, while the soot from another candle contained PAHs but no
hopanes or steranes. Wabeke testified that if the aforementioned candles were
burned together the analysis of the resulting soot may reveal the presence of
hopanes, steranes, and PAHs. Though Wabeke did not go so far as to conclude
that the foregoing scenario may result in a false-positive for exhaust from an
engine, the jury, via Dr. Schauer’s testimony, was already aware that those same
molecular tracers make up the chemical fingerprint associated with soot from an
engine, and therefore could have concluded, without further testimony, that the
soot analyzed by the Lab could have originated from burning candles instead of an
engine. Given the foregoing, we find that Mark was not prejudiced by the
exclusion of Teeters’ testimony concerning candle soot.
{¶93} Accordingly, we overrule Mark’s third assignment of error.
Assignment of Error No. IV
{¶94} In his fourth assignment of error, Mark contends that the trial court
erred when it refused to order the State to provide all information from Elemental
Carbon – Organic Carbon analysis (“ECOC analysis”) conducted by the Lab and
18
Upon review of the record, the origin of the candles Wabeke tested is not clear. See Trial Tr., p. 2248-
2252, 2324-2326.
-54-
Case No. 1-11-18
data considered by Dr. Schauer to calculate depositional velocity (“depositional
velocity data” or “data”), thus denying him a fair trial. Specifically, Mark
contends that the State was required to provide all information associated with the
ECOC analysis and depositional velocity data pursuant to Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194 (1963) and Crim.R. 16. Based on the following, we
disagree.
I. ECOC Results
{¶95} During the Daubert hearing, it was discovered that the Lab
conducted ECOC analysis on dry wipe samples taken from items submitted to it
for testing. Mark, having not been aware of the ECOC analysis performed by the
Lab, moved the trial court to order the State to provide all information associated
with the ECOC analysis arguing that the information may be exculpatory. The
trial court denied Mark’s motion.
{¶96} On appeal, Mark contends that the trial court erred when it refused to
order the State to provide all information associated with the ECOC analysis.
First, Mark contends that the information associated with the ECOC analysis is
material to his guilt, and should have been provided pursuant Brady v. Maryland.
Alternatively, Mark contends that the State was required to provide the
information associated with the ECOC analysis pursuant to Crim.R. 16(B)(3), (4).
We will address each contention in turn.
-55-
Case No. 1-11-18
A. Brady Issue
{¶97} It is well settled that the prosecution’s suppression of evidence
favorable to an accused violates due process where the evidence is material either
to guilt or punishment, irrespective of the prosecution’s good or bad faith. Brady
v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194 (1963). Similarly, Crim.R. 16(B)(5)
requires the prosecution to disclose “any evidence favorable to the defendant and
material to guilt or punishment.” See State v. Keene, 81 Ohio St.3d 646, 650
(1998) (the terms “favorable” and “material” in Crim.R. 16 have the same
meaning as they do in Brady). Brady’s holding, as well as Crim.R. 16(B)(5),
places upon the prosecution a duty to disclose evidence “that is both favorable to
the accused and ‘material either to guilt or to punishment.’” United States v.
Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375 (1985), quoting Brady at 87. The
prosecution’s duty of disclosure under Brady extends to favorable and material
evidence that is known to the prosecution and to others acting on the prosecution’s
behalf in the case. Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555 (1995).
{¶98} The key issue in a case where favorable evidence is alleged to have
been withheld by the prosecution is whether the evidence is material. State v.
Johnston, 39 Ohio St.3d 48, 60 (1988). “The mere possibility that an item of
undisclosed information might have helped the defense, or might have affected the
outcome of the trial, does not establish ‘materiality’ in the constitutional sense.”
-56-
Case No. 1-11-18
State v. Jackson, 57 Ohio St.3d 29, 33 (1991), quoting United States v. Agurs, 427
U.S. 97, 109-10, 96 S.Ct. 2392 (1976). Rather, “[e]vidence is considered material
‘if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.’” State v.
Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 23, quoting Bagley, 473 U.S. at
682, 105 S.Ct. 3375. The touchstone of materiality is a “reasonable probability”
of a different result. Kyles at 434. “The question is not whether the defendant
would more likely than not have received a different verdict with the evidence, but
whether in its absence he received a fair trial, understood as a trial resulting in a
verdict worthy of confidence.” Id. Accordingly, the rule in Brady is violated
when the favorable evidence that was not disclosed by the prosecution “could
reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.” State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, ¶
40, quoting Kyles at 435.
{¶99} The defense bears the burden of proving a Brady violation rising to
the level of denial of due process. State v. Iacona, 93 Ohio St.3d 83, 92 (2001),
citing Jackson, 57 Ohio St.3d at 33.
{¶100} Mark contends that the ECOC analysis is material to his guilt
because the testing performed by the Lab was central to the State’s case. Though
the testing performed by the Lab was central to the State’s case, review of the
-57-
Case No. 1-11-18
record reveals that had the results of the ECOC analysis been disclosed the results
could not reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict.
{¶101} First, the results of the ECOC analysis were invalid. During the
Daubert hearing and again at trial, Dr. Schauer testified that the ECOC analysis
performed on dry wipe samples collected from items submitted to it for testing
yielded invalid results. While Mark contends that the veracity of Dr. Schauer’s
foregoing testimony is questionable, we find that none of the testimony or
evidence Mark cites to in support of his contention contradicts Dr. Schauer’s
testimony. As such, we must conclude, as did the trial court, that the results of the
ECOC analysis were invalid. Since invalid results are inherently unreliable, we
cannot conclude that the results of the ECOC analysis were material to Mark’s
guilt. See Aldrich v. Bock, 327 F.Supp.2d 743, 755-757 (E.D.Mich.2004).
Furthermore, Mark has cited no authority wherein invalid results, which were not
provided to the defendant, were found to be material to the defendant’s guilt.
{¶102} Second, the results of the ECOC analysis would have provided little
to no assistance in rebutting Dr. Schauer’s conclusion concerning the origin of the
soot found in the duct work. First, the record reveals that ECOC analysis is “being
used as a marker for Diesel exhaust.” (Docket No. 256, p. 1). Here, there is no
evidence that any of the engines located in the Wangler garage or driveway on the
-58-
Case No. 1-11-18
day of Kathy’s death operated on diesel fuel. Second, and more importantly, Dr.
Schauer explained that ECOC analysis is not used to identify molecular tracers in
soot, which, as previously explained, is the means by which the origin of the soot
is identified. Rather, Dr. Schauer explained that ECOC analysis simply measures
the amount of elemental carbon and organic carbon contained in soot, which is
then used to “quantify the blackness of the [soot] deposits” as opposed to the
origin of the soot. Daubert Tr., p. 249.
{¶103} Given the foregoing, we find that the information associated with
the ECOC analysis was not material to Mark’s guilt, and therefore find no Brady
violation.
B. Crim.R. 16
{¶104} Alternatively, Mark contends that he was entitled to the information
associated with the ECOC analysis pursuant to Crim.R. 16(B)(3), (4).
{¶105} Crim.R. 16(B)(3), (4) provides as follows:
(B) Discovery: Right to Copy or Photograph. Upon receipt of a
written demand for discovery by the defendant, * * * the prosecuting
attorney shall provide copies or photographs, or permit counsel for
the defendant to copy or photograph, the following items related to
the particular case indictment, information, or complaint, and which
are material to the preparation of a defense, or are intended for use
by the prosecuting attorney as evidence at the trial, or were obtained
from or belong to the defendant, within the possession of, or
reasonably available to the state, subject to the provisions of this
rule:
***
-59-
Case No. 1-11-18
(3) Subject to divisions (D)(4) and (E) of this rule, all laboratory or
hospital reports, books, papers, documents, photographs, tangible
objects, buildings, or places;
(4) Subject to division (D)(4) and (E) of this rule, results of
physical or mental examinations, experiments or scientific tests;
{¶106} The State contends that the neither Crim.R. 16(B)(3) or (4) applies
in the case sub judice, since there were no results or reports generated from the
ECOC analysis. Though Dr. Schauer testified that he did not consider the ECOC
analysis in authoring the Report, consequently rendering (B)(3) inapplicable, he
did testify that the ECOC analysis produced results, albeit invalid results. See
Daubert Tr., p. 248. Mark argues that given the language of (B)(4), the results of
the ECOC analysis, though invalid, were discoverable. Indeed, (B)(4) does not
distinguish between valid and invalid results. Instead, it merely states that the
“results” of certain examinations and tests are discoverable. Given the plain
language of (B)(4), we agree that invalid results are discoverable, but are not
persuaded that the State was required to produce the results of the ECOC analysis.
{¶107} Pursuant to Crim.R. 16(B), “the prosecuting attorney shall provide
copies or photographs, or permit counsel for the defendant to copy or photograph”
those items which are (1) detailed in (B)(1-7) and (2) “which are material to the
preparation of a defense, or are intended for use by the prosecuting attorney as
evidence at the trial, or were obtained from or belong to the defendant, within the
-60-
Case No. 1-11-18
possession of, or reasonably available to the state.” (Emphasis added.) Crim.R.
16(B). Here, we have determined that the results of the ECOC analysis are
discoverable under (B)(4), thus satisfying the first requirement. Mark, however,
has advanced no argument as to the second requirement, i.e., whether the results
were material to the preparation of his defense, intended for use at trial by the
prosecuting attorney, or were obtained from Mark and available to or within the
State’s possession. Given the lack of argument, we find that Mark has not
satisfied the second requirement. See App.R. 16(A)(7). Accordingly, we find that
the State did not violate Crim.R. 16.
{¶108} Even if the State violated Crim.R. 16, the violation would not be
grounds for reversal. “Violations of Crim.R. 16 by the prosecution may result in
reversible error only upon a showing that (1) the prosecution’s failure to disclose
was a willful violation of the rule, (2) foreknowledge of the information would
have benefited the accused in preparing a defense, and (3) the accused has suffered
prejudice.” State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶ 38, citing State
v. Joseph, 73 Ohio St.3d 450, 458 (1995). Without deciding either the first or
second requirements, we find, for the reasons stated in overruling Mark’s Brady
argument, that Mark cannot establish prejudice because there was no reasonable
probability that the outcome of the trial would have been different had the State
disclosed the information related to the ECOC analysis.
-61-
Case No. 1-11-18
{¶109} Given the foregoing, we find that the State’s violation of Crim.R.
16 does not constitute reversible error.
II. Depositional Velocity Data
{¶110} During the Daubert hearing it was discovered that Dr. Schauer
considered depositional velocity data in determining how quickly the soot found in
the duct work would have accumulated. Mark, having not been aware of Dr.
Schauer’s consideration of the depositional velocity data, moved the trial court to
order the State to provide the data arguing that access to such data is necessary to
challenge Dr. Schauer’s conclusions or subject them to replication. The trial court
denied Mark’s motion, finding that the data was work product.
{¶111} On appeal, Mark contends that the trial court erred when it refused
to order the State to provide the depositional velocity data. First, Mark contends
that the data should have been provided pursuant to Crim.R. 16. Alternatively,
Mark contends the data is material to his guilt, and should have been provided
pursuant Brady v. Maryland. We will address each contention in turn.
A. Crim.R. 16
{¶112} Mark contends that the depositional velocity data should have been
provided pursuant to Crim.R. 16. Mark, however, does not cite which provision of
-62-
Case No. 1-11-18
Crim.R. 16 applies.19 “It is not appropriate for an appellate court to construct the
legal arguments in support of an appellant’s appeal.” Beckett v. Wisniewski, 3d
Dist. No. 5-09-17, 2009-Ohio-6158, ¶ 16, citing Petro v. Gold, 166 Ohio App.3d
371, 2006-Ohio-943, ¶ 94 (10th Dist.). “If an argument exists that can support
[an] assignment of error, it is not [an appellate] court’s duty to root it out.” Id.Accordingly, since Mark does not cite (and consequently does not argue) which
provision of Crim.R. 16 requires production of the data, we decline to address
Mark’s contention.
B. Brady Issue
{¶113} Alternatively, Mark contends that the depositional velocity data is
material to his guilt. Specifically, Mark contends that without the data “there
[was] no way to adequately challenge Schuaer’s conclusions or subject them to
replication using the scientific method.” Appellant’s Br., p. 35. While we do not
doubt that having the data would have allowed Mark to more thoroughly vet Dr.
Schauer’s conclusions, review of the record reveals that had the data been
disclosed it could not reasonably be taken to put the whole case in such a different
light as to undermine confidence in the verdict.
{¶114} Viewing the record as a whole, we fail to see how access to the
depositional velocity data would undermine confidence in the verdict. Dr.
19
We further note that review of the record, particularly the Daubert hearing and Mark’s motion requesting
the trial court’s reconsideration of its ruling concerning the data, reveals that Mark did not cite which
provision of Crim.R. 16 requires production of the data.
-63-
Case No. 1-11-18
Schauer’s conclusion that exhaust was directly introduced into the duct work was
based on the data as well as photographs of soot stains on the exterior of the duct
work and the wall above the register in Kathy’s bedroom. Considering Dr.
Schauer’s testimony, it appears that the data and photographs each provided an
individual basis for Dr. Schauer’s conclusion that exhaust was directly introduced
into the duct work. Consequently, even if we were to assume that the data was
somehow erroneous, the photographs still provide a basis for Dr. Schauer’s
conclusion. In addition, Dr. Schauer testified at trial that he had never before
considered depositional velocity data as it pertains to soot found in duct work.
Clearly, this testimony calls into question Dr. Schauer’s ability to accurately
determine how long it would have taken for the soot found in the duct work to
accumulate. Accordingly, we fail to see how more evidence concerning the data
and Dr. Schauer’s consideration thereof would affect the outcome of the trial.
{¶115} Furthermore, the United States Supreme Court has rejected the idea
that the materiality standard should go to the defendant’s ability to prepare for
trial. The court explained:
It has been argued that the standard should focus on the impact of
the undisclosed evidence on the defendant’s ability to prepare for
trial, rather than the materiality of the evidence to the issue of guilt
or innocence. Such a standard would be unacceptable for
determining the materiality of what has been generally recognized as
“Brady material” for two reasons. First, that standard would
necessarily encompass incriminating evidence as well as exculpatory
evidence, since knowledge of the prosecutor’s entire case would
-64-
Case No. 1-11-18
always be useful in planning the defense. Second, such an approach
would primarily involve an analysis of the adequacy of the notice
given to the defendant by the State, and it has always been the
Court’s view that the notice component of due process refers to the
charge rather than the evidentiary support for the charge. (Citation
omitted.) Agus, 427 U.S. 97, fn. 20, 96 S.Ct. 2392.
{¶116} We interpret Mark’s contention, quoted above, as arguing that
access to the data was necessary to prepare for trial. Given Mark’s contention and
the precedent set forth in Agurs, we find that Mark has failed to establish the
materiality of the data.
{¶117} Given the foregoing, we find that the depositional velocity data was
not material to Mark’s guilt, and therefore find no Brady violation.
{¶118} Apart from our determination that no Brady violation occurred,
Mark contends that without the data the trial court was incapable of preforming a
complete Daubert analysis of the methodology. While the trial court did not
review the data firsthand, the testimony during the Daubert hearing was sufficient
to determine the reliability of the data, and consequently the methodology.
Moreover, given the nature of the data at issue, which apparently is comprised of
complex mathematical formulas, we are not convinced that the trial court’s
reliability determination would have been any different had it considered the data.
{¶119} Accordingly, we overrule Mark’s fourth assignment of error.
-65-
Case No. 1-11-18
{¶120} Having found no error prejudicial to Mark herein, in the particulars
assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
-66-