State v. Sells , 2017 Ohio 987 ( 2017 )

[Cite as State v. Sells, 2017-Ohio-987.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2016-CA-15
:
v. : Trial Court Case No. 2003-CR-51
:
MARK D. SELLS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 17th day of March, 2017.
...........
PAUL M. WATKINS, Atty. Reg. No. 0090868, Miami County Prosecutor’s Office, 201
West Main Street, Safety Building, Troy, Ohio 45373
Attorney for Plaintiff-Appellee
DONALD R. CASTER, Atty. Reg. No. 0077413, Ohio Innocence Project, University of
Cincinnati College of Law, Post Office Box 210040, Cincinnati, Ohio 45221-0040
Attorney for Defendant-Appellant
.............
HALL, P.J.
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{¶ 1} Mark D. Sells appeals from the trial court’s denial of his application for post-
conviction DNA testing.
{¶ 2} In his sole assignment of error, Sells contends the trial court erred in denying
the application where one outcome of DNA testing would exonerate him, making the
requested testing “outcome determinative.”
{¶ 3} The record reflects that Sells was convicted and sentenced on charges of
aggravated murder and aggravated robbery following a 2005 jury trial. The crimes
involved him breaking into the home of an elderly victim, Sharid Gantz, with the intent to
steal money and beating Gantz to death with a baseball bat. On direct appeal, this court
rejected an argument related to a suppression issue but reversed and remanded for
resentencing. State v. Sells, 2d Dist. Miami No. 2005-CA-8, 2006-Ohio-1859. Sells
appealed again after resentencing, and this court affirmed. State v. Sells, 2d Dist. Miami
No. 2006-CA-27, 2007-Ohio-4213. Thereafter, in April 2016, Sells filed his application for
DNA testing. (Doc. #295). The only evidence cited in the application was a piece of leather
tape from the handle of the murder weapon/baseball bat, which had been found in a creek
near the crime scene. (Id.). In a memorandum accompanying his application, Sells
requested DNA testing of the leather tape and of the waistband of the pants Gantz was
wearing when he was killed. (Id. at memorandum pg. 6).
{¶ 4} Upon review, the trial court denied Sells’ application. The trial court reviewed
the evidence presented at trial and, applying R.C. 2953.71, et seq., concluded that an
“exclusion result” would not be “outcome determinative.” (Doc. #305 at 4-5). In relevant
part, the trial court reasoned:
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Assuming, for arguments sake, that DNA testing of the murder
weapon/bat handle produced an “exclusion result” that was analyzed,
considered, and admitted into evidence in the context of the trial, the Court
finds that a reasonable factfinder would have nevertheless found the
Defendant guilty of aggravated murder beyond a reasonable doubt based
upon the substantial, overwhelming, reliable and credible evidence properly
introduced at trial.
By way of example, at trial the State produced testimony from co-
defendants Barrett and Cassidy who were present at the time that the
Defendant brutally murdered Mr. Gantz. (Tr. 782-821 and 458-494) Further,
the Defendant made admissions regarding his role in the murder to several
individuals who testified at trial including Sterling Walters, James Lord,
Christopher Cassidy, Ashley Benton, and Richard Lord. (Tr. 964-972; Tr.
942; Tr. 915-919; Tr. 908; Tr. 920-926; Tr. 902-908)
Moreover, there was testimony from Cheryl Todd that the Defendant
had purchased a pack of Camel Turkish Gold cigarettes which were
subsequently found at the victim’s residence. These cigarettes had the
Defendant’s DNA present on them. (Tr. 950-952)
With regard to additional forensic evidence admitted at trial, the Court
notes that DNA testing demonstrated that the victim’s blood was on the
Defendant’s “Ohio State pullover” which the Defendant wore on the date of
the offense. (Tr. 1111-1164) Further, Defendant’s blood was found in the
victim’s car in two locations that were consistent with the testimony of the
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co-defendants regarding the mechanics of the crime. (Tr. 1111-1164). In
addition, the Defendant’s blood was found on a pillow case recovered from
the victim’s home. (Tr. 1148-1149, 1176)
Put simply, an “exclusion result” from a DNA test on the bat
handle/murder weapon would do little to advance the Defendant’s
arguments that he was not the perpetrator of this heinous crime. In
considering the Defendant’s application, the Court had also reviewed the
following cases as authority in supporting its decision denying Defendant’s
application. State v. Emrick, 2011-Ohio-5543, 2011 WL 5137200 (2d Dist.
Ct. of App., decided Oct. 28, 2011) and State v. Buehler, 113 Ohio St.3d
114, 863 N.E.2d 124.
Almost as an afterthought, the Defendant also requests testing of the
victim’s pants in their memorandum; although no such request was made
in Defendant’s original application under R.C. 2953.71. Defendant does not
indicate that the victim’s pants have been preserved or if there is some type
of material to be tested. The Defendant does engage in several levels of
speculation regarding the pants: this was a sexually motivated crime; the
perpetrator’s DNA may be found on the waistband of the pants; such DNA,
if found, may not be the perpetrator but if it matched the DNA on the bat
handle then it would eliminate all other potential suspects; and so on.
Insofar as this testing is requested, the Defendant has failed to meet the
basic statutory requirements set forth in R.C. 2953.71 and as a result, said
request is denied.
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Therefore, the Court finds that a reasonable factfinder would have
found the Defendant guilty of aggravated murder beyond a reasonable
doubt even if DNA testing of the handle of the bat/murder weapon produced
an “exclusionary result” which was analyzed, considered, and admitted into
evidence in the context of trial, because there exists overwhelming,
credible, and reliable evidence properly introduced at trial that Defendant
committed aggravated murder consistent with the jury’s verdict at trial.
Defendant’s application pursuant to R.C. 2953.71 is hereby denied.
(Id. at 4-5).
{¶ 5} Although the statutory scheme in R.C. 2953.71, et seq. contains various
requirements, Sells’ appeal focuses on whether an exclusion result obtained from his
requested DNA testing would be “outcome determinative.” Where such a result would not
be outcome determinative, an application for post-conviction DNA testing properly is
denied. State v. Buehler, 113 Ohio St.3d 114, 2007-Ohio-1246, 863 N.E.2d 124, ¶ 37.
We note that a trial court has discretion to determine whether a particular result would be
outcome determinative in a given case. Id.; see also R.C. 2953.72(A)(8) (recognizing “that
the court of common pleas has the sole discretion, subject to an appeal * * * to determine
whether * * * an eligible offender’s application for DNA testing satisfies the acceptance
criteria,” which under R.C. 2953.74(C)(5) include a requirement that an exclusion result
be outcome determinative).1 Accordingly, we will review the trial court’s decision for an
1We note that unrelated language in R.C. 2953.72(A)(8) dealing with discretionary
appeals to the Ohio Supreme Court in death-penalty cases was declared
unconstitutional and severed from the statute in State v. Noling, Ohio Sup. Ct. Slip
Opinion No. 2016-Ohio-8252, ¶ 58-63.
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abuse of discretion.2 See, e.g., State v. Hayden, 2d Dist. Montgomery No. 26524, 2015-
Ohio-3262, ¶ 12 (“We therefore review the trial court’s denial of a motion for further DNA
testing for an abuse of discretion.”); State v. Bunch, 7th Dist. Mahoning No. 14 MA 168,
2015-Ohio-4151, ¶ 94 (“As aforementioned, we review the trial court’s decision on the
outcome determinative requirement for an abuse of discretion.”).
{¶ 6} The statute at issue defines an “exclusion result” as “a result of DNA testing
that scientifically precludes or forecloses the subject offender as a contributor of biological
material recovered from the crime scene or victim in question, in relation to the offense
for which the offender is an eligible offender[.]” R.C. 2953.71(G). “Outcome determinative”
means “that had the results of DNA testing of the subject offender been presented at the
trial of the subject offender requesting DNA testing and been found relevant and
admissible with respect to the felony offense for which the offender is an eligible offender
and is requesting the DNA testing, and had those results been analyzed in the context of
and upon consideration of all available admissible evidence related to the offender’s case
* * *, there is a strong probability that no reasonable factfinder would have found the
offender guilty of that offense[.]” R.C. 2953.71(L).
{¶ 7} As set forth above, the trial court rejected Sells’ argument that his requested
DNA testing would be outcome determinative even if it produced results excluding him as
the source of any DNA that might be found on the murder weapon and on the victim’s
2 On appeal, Sells urges us to apply abuse-of-discretion review to the trial court’s
factual findings while applying de novo review to determine whether an exclusion result
would be outcome determinative. We find this argument unpersuasive. As set forth
above, the statutory scheme gives a trial court discretion to determine whether a
particular test result is outcome determinative. That being so, we continue to believe
abuse-of-discretion review is proper on appeal. In any event, on the record before us we
would reach the same conclusion here even applying de novo review.
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pants. On appeal, Sells insists that an outcome-determinative result would exist if both of
these items yielded DNA matching some other person. In support, he cites State v.
Emerick, 170 Ohio App.3d 647, 2007-Ohio-1334, 868 N.E.2d 742 (2d Dist.), and argues
that “the outcome determinate standard can be established when DNA test results reveal
the DNA profile of a third party (which excludes the defendant) across multiple items with
which the perpetrator had contact or likely had contact.” (Appellant’s brief at 8). In other
words, Sells reasons that if the same DNA profile is found on multiple crime-scene items,
a strong inference exists that the person who left the DNA is the perpetrator. This
argument is consistent with Emerick, in which this court opined: “If the unidentified donor’s
DNA is located on different evidentiary items, that individual would be the actual murderer.
Under this scenario, DNA analysis of the requested evidentiary items would clearly be
outcome determinative with respect to the question of Emerick’s guilt.” Emerick at ¶ 25.
{¶ 8} Upon review, we find Emerick factually distinguishable. In that case, the
State’s theory at trial was that only one perpetrator committed a double homicide, and the
State presented no DNA evidence linking Emerick to the murders. Id. Under these
circumstances, this court concluded that the presence of someone else’s DNA on multiple
pieces of crime-scene evidence would be outcome determinative and would exonerate
Emerick. Id.{¶ 9} In the present case however, the State’s theory was that Sells went to victim
Sharid Gantz’s home accompanied by two co-defendants. In addition, the State had DNA
evidence, eyewitness testimony, an alleged confession by Sells to a third party, and other
strong physical evidence linking Sells to the murder of Gantz. In particular, the co-
defendants both testified that they accompanied Sells to Gantz’s house, where Sells
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proceeded to force entry and beat Gantz to death with a baseball bat. The State also
presented evidence (1) that Sells was seen shortly after the murder with cuts on his
hands, (2) that Sells had made an apparent joke about having killed Gantz, (3) that Sells
had been overheard threatening his co-defendants if they informed on him, (4) that Sells
had stated, prior to the murder, that he would kill Gantz and take his money, (5) that Sells
confessed to the murder while in jail awaiting trial, (6) that glass fragments embedded in
Sells’ shoe had a “refractive index” that matched glass fragments found at the crime scene
and embedded in the baseball bat, (7) that Sells’ DNA was found in blood in the victim’s
car, which the co-defendants testified Sells broke into immediately after the murder, (8)
that blood was found on a sweatshirt worn by Sells at the time of the crimes and it
contained a mixture of DNA from two individuals—and both Sells and the victim were
among the one in 1,600 people who were possible contributors, and (9) that Sells’ DNA
was found on cigarette butts discovered outside the victim’s house, which helped confirm
the co-defendants’ testimony that he smoked there before killing the victim.
{¶ 10} Even if we accept, arguendo, that Sells’ requested testing of the murder
weapon and the victim’s pants would have yielded a result establishing the presence of
someone else’s DNA, such a result would not be outcome determinative with regard to
Sells’ guilt. We agree with the trial court that even if someone else’s DNA were found on
the baseball bat handle and on the victim’s pants, that evidence would not reasonably
exclude Sells as a perpetrator of the crime at issue. Such evidence would establish only
that someone else had touched the bat and had contact with the victim. It would not
negate the overwhelming evidence of Sells’ own involvement in the crime. In the words
of R.C. 2953.71(L), the requested testing would not create “a strong probability that no
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reasonable factfinder would have found [Sells] guilty of th[e] offense[.]” Accordingly, we
find no error in the trial court’s denial of his application for post-conviction DNA testing.
{¶ 11} The sole assignment of error is overruled, and the judgment of the Miami
County Common Pleas Court is affirmed.
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FROELICH, J. and TUCKER, J., concur.
Copies mailed to:
Paul M. Watkins
Donald R. Caster
Hon. Jeannine N. Pratt