State v. Bell ( 2022 )

[Cite as State v. Bell, 2022-Ohio-3453.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29361
:
v. : Trial Court Case No. 2007-CR-802
:
DIAHNTAE BELL : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 30th day of September, 2022.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
DIAHNTAE BELL, Inmate No. A565-818, London Correctional Institution, P.O. Box 69,
London, Ohio 43140
Defendant-Appellant, Pro Se
.............
TUCKER, P.J.
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{¶ 1} Defendant-appellant Diahntae Bell appeals from a decision of the
Montgomery County Court of Common Pleas overruling his application for postconviction
DNA testing. For the reasons set forth below, the judgment of the trial court is affirmed.
I. Facts and Procedural History
{¶ 2} We set forth the history of the case in State v. Bell, 2d Dist. Montgomery No.
22448, 2009-Ohio-4783 (“Bell I”), as follows:
On February 27, 2007, Cassandra Graves and Quiana Lott were
residents of an apartment located at 5157 Embassy Place in Harrison
Township. On that date, they noticed Bell coming out of an apartment
located next door at 5155 Embassy Place. That apartment was being
rented by Graves's sister, Donitta Harvey, who was in prison at that time.
Graves and her brother Deangelo Epps were watching Harvey's apartment
while she was in prison, and they had a key to the apartment. Bell was
carrying a DVD player identified as belonging to Harvey. When Bell was
confronted by Graves and Lott he claimed that he had permission to enter
the apartment. He ultimately relinquished the DVD player and went to
another apartment located at 5151 Embassy Place. Graves called the
police to report Bell. When the police arrived, Bell had left the scene.
Almost two hours later, Bell returned to the apartment complex where
he was observed pacing back and forth behind the apartments. Bell
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confronted the residents of 5157 and claimed that he had no reason to steal
the DVD player. At that time, Lott became nervous, telephoned her brother
Diamond Washington, and asked him to come over. At one point, Bell
went back to the apartment located at 5151 and told the occupants,
Lamicah Helton and Lamond Chambers, that he had left his keys in 5155.
Both Helton and Chambers approached the residents of 5157, seeking to
gain access to 5155 in order to look for the keys; their requests were
refused. Thereafter, Bell again confronted the residents of 5157 and asked
them to look for his keys. At that point, Larue Bailey, another resident of
5157, had returned to the apartment. He and Washington went over to
5155 to look for the keys, but did not find them.
After Washington and Bailey went back inside 5157, Bell attempted
to enter 5155 through the kitchen window. He was stopped by Washington
and Bailey. Washington and Bell began to “tussle,” and a gun was pulled
out. As the men fought, Bell was shot in the hand and thereupon dropped
the gun. Washington kicked the gun over to Bailey, who was later
observed holding the gun at his side, pointed downward. At some point,
the fight ended, with Washington returning inside to 5157. Bell was then
observed walking back to the truck and retrieving a gun. Thereafter, he
was observed shooting Bailey.
Following the shooting, Bell ran back and entered Helton's
apartment, but immediately exited through the front door. Helton and
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Chambers took their children and left the apartment complex in a vehicle.
The police responded to the scene. Bailey was transported to the hospital,
where he was pronounced dead. Approximately fifteen minutes after the
shooting, police received information that Bell was inside an apartment
located at 5148 Northcutt Place, a short distance from Embassy Place. Bell
was apprehended. A few days later, the handgun used to kill Bailey was
found in a trash can in Trotwood. No fingerprints were obtained from the
gun.
Bell was indicted on six counts, as follows: Count One-Felony
Murder; Count Two-Murder; Count Three-Felonious Assault; Count Four-
Burglary; Count Five-Burglary; and Count Six-Having a Weapon Under a
Disability. With the exception of the Burglary charge in Count Four of the
indictment, all of the charges carried firearm specifications. Following a jury
trial, Bell was convicted on Counts One, Four, Five and Six. The trial court
sentenced Bell to a prison term of twenty-three years to life.
(Footnote omitted.) Id. at ¶ 4-8.
{¶ 3} Bell filed a direct appeal in which he asserted that (1) the conviction was not
supported by the evidence; (2) the indictment was deficient; (3) counsel was ineffective;
and (4) the trial court erred in sentencing. We affirmed the trial court’s judgment on
September 11, 2009. Bell I, 2d Dist. Montgomery No. 22448, 2009-Ohio-4783. We
denied Bell’s subsequent applications to reconsider and to reopen his direct appeal. In
May 2011, Bell filed a motion for resentencing. We affirmed the trial court’s denial of that
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motion. State v. Bell, 2d Dist. Montgomery No. 24783, 2012-Ohio-3491 (Bell II). In
January 2013, Bell filed a petition to vacate his conviction and sentence, in which he
claimed that trial counsel had failed to inform him of a plea offer. We affirmed the trial
court’s decision overruling the petition on the basis that it was untimely. State v. Bell, 2d
Dist. Montgomery No. 25729, 2014-Ohio-49 (“Bell III”).
{¶ 4} This appeal involves the trial court’s denial of Bell’s July 26, 2021 application
for DNA testing. In the application, Bell sought testing of “the 38 caliber, the 45 Taurus,
the screen door & number 11.” He also sought testing of the clothing he and the victim
wore at the time of the offense. The State opposed the motion. The trial court denied
the motion on December 28, 2021.
{¶ 5} Bell appeals pro se.
II. The Trial Court’s Compliance with R.C. 2953.73(D)
{¶ 6} We begin our analysis with Bell’s second assignment of error, which states:
THE TRIAL COURT ERRED WHEN IT FAILED TO EXPLAIN THE
REASON FOR ITS DECISION.
{¶ 7} Bell contends the trial court did not set forth an explanation for its decision
denying his application. He asks that we remand the case in order for the court to set
forth its reasoning.
{¶ 8} R.C. 2953.73(D) states that, when ruling upon an application for DNA testing,
“the court shall enter a judgment and order that either accepts or rejects the application
and that includes within the judgment and order the reasons for the acceptance or
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rejection as applied to the criteria and procedures set forth in sections 2953.71 to 2953.81
of the Revised Code.” Thus, the statute prevents a trial court from merely issuing a
general judgment in favor of a party.
{¶ 9} In this case, the trial court’s judgment entry stated, in pertinent part:
After considering the Defendant’s Application for DNA Testing[,] the State’s
Memorandum Contra, and the Reply filed by Defendant, the Court hereby
adopts the argument and reasoning set forth by the State in its
Memorandum Contra and denies the Defendant’s Application for DNA
testing.
{¶ 10} Ordinarily, we would fault Bell for failing to file a Civ.R. 52 motion for findings
of fact and conclusions of law, and we would presume the regularity of the trial court’s
proceedings. See Yocum v. Means, 2d Dist. Darke No. 1576, 2002-Ohio-3803, ¶ 7.
However, given the clear mandate of R.C. 2953.73(D) requiring a trial court to set forth
its reasoning, we cannot say that burden belonged to Bell. In any event, the purpose of
Civ.R. 52 is to permit a reviewing court to determine whether the contents of the trial
court’s opinion, “when considered together with other parts of the record, form an
adequate basis upon which to decide the narrow legal issues presented.”
Brandon/Wiant Co. v. Teamor, 135 Ohio App.3d 417, 423, 734 N.E.2d 425 (8th
Dist.1999). In other words, the purpose of issuing findings of fact and conclusions of law
is to establish a record that permits us to conduct a meaningful review.
{¶ 11} Here, while the trial court did not technically comply with R.C. 2953.73(D),
it did refer to and adopt the State’s reasoning as set forth in its memorandum opposing
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Bell’s application. A review of that memorandum reveals that the State’s argument was
based upon factors which we will discuss below in our resolution of Bell’s first assignment
of error. Further, the memorandum permits us to conduct a meaningful review of the
record because it sets forth a sufficient basis for denying Bell’s application as applied to
the criteria and procedures set forth in R.C. 2953.71 to 2953.81. Thus, although the
better practice would be for the trial court to set forth its own basis for judgment, we
conclude that the decision in this case does not require us to remand for findings of fact
or conclusions of law.
{¶ 12} Accordingly, Bell’s second assignment of error is overruled.
III. Trial Court’s Decision
{¶ 13} Bell’s first assignment of error states as follows:
THE TRIAL COURT ERRED IN DENYING APPELLANT’S APPLICATION
FOR DNA TESTING.
{¶ 14} Bell contends that the trial court should have granted his application for DNA
testing.
{¶ 15} Post-conviction DNA testing is governed by R.C. Chapter 2953. “The trial
court may ‘accept’ an eligible inmate's application for DNA testing only if the following
factors are present: (1) biological material was collected from the crime scene or the
victim(s), and the parent sample of that biological material still exists; (2) the parent
sample of the biological material is sufficient, demonstrably uncorrupted, and scientifically
suitable for testing; (3) the identity of the perpetrator of the charged offense was an issue
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at the inmate's trial; (4) a defense theory at trial was such that it would permit a conclusion
that an ‘exclusion result would be outcome determinative;’ and (5) ‘if DNA testing is
conducted and an exclusion result is obtained, the results of the testing would be outcome
determinative.’ ” State v. Emerick, 170 Ohio App.3d 647, 2007-Ohio-1334, 868 N.E.2d
742, ¶ 15 (2d Dist.); R.C. 2953.74(C). “If any of the factors listed in R.C. 2953.74(C) is
not satisfied, the court is precluded from accepting the application.” Id. at ¶ 16.
{¶ 16} In this case, Bell’s application focused on his claim that DNA testing would
be outcome determinative because it would exclude him as the person who shot Bailey.
{¶ 17} The term “exclusion result” means a DNA test result “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).
{¶ 18} A trial court has discretion to accept or reject an application for DNA testing.
R.C. 2953.74(A). Thus, absent an abuse of discretion, we will not reverse the decision
of the trial court. An abuse of discretion occurs when the trial court's decision is
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unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983). An application for postconviction DNA testing is properly
denied where the results would not be outcome determinative. State v. Buehler, 113
Ohio St.3d 114, 2007-Ohio-1246, 863 N.E.2d 1246, ¶ 37.
{¶ 19} Bell sought to have six items tested, including “the screen door.” The
shooting took place at an apartment complex. As pointed out by the State, there was
evidence presented that Bell was at apartments 5151, 5155 and 5157 at some point
leading up to or immediately following the shooting. All three apartments had screen
doors. Bell admitted to the police that he had been in the area at the time of the shooting.
There is no evidence to demonstrate which of those doors he touched, if any, and Bell
failed to specify which of those doors he wished to have tested for DNA. Also, Bell failed
to state, and we cannot discern, how DNA testing of a screen door would be outcome
determinative as to the question of whether he shot Bailey. Further, although Bell
intimates that the resident of one of the apartments may have been the person who
actually shot Bailey, the fact that the resident’s DNA might have been found on a screen
door in an apartment complex in which he lived would not lead to a finding that the
resident shot Bailey. Thus, the trial court did not err in rejecting this portion of the
application.
{¶ 20} Next, Bell asked that testing be performed on both his and Bailey’s clothing.
In support, he argued that the jury would have acquitted him had it known there was no
gun powder on the clothing. Thus, it appears he sought to have gun powder residue
testing, rather than DNA testing, of the clothing. However, residue testing is not
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contemplated by or provided for in the DNA testing statutes. Further, Bell made no
assertions as to how DNA testing on the clothing would be outcome determinative, and
we discern no basis for such a finding. Therefore, we find no error in the trial court’s
decision to reject this portion of the application.
{¶ 21} Bell also sought DNA testing of the “number 11” and the .38 caliber weapon
found at the scene. With regard to the “number 11,” Bell fails to identify what this
evidence consists of or how it would render outcome determinative results. Likewise,
there is nothing in Bell’s application to support a finding that DNA testing of the .38 caliber
weapon would be relevant, as that gun was not the murder weapon. We conclude the
trial court did not err in denying testing on this basis.
{¶ 22} Finally, Bell argued that DNA testing of the evidence would establish that
the State was not able to link him to the .45 Taurus gun used to kill Bailey. In support,
Bell claimed that, because he was bleeding profusely from his hand after being shot, had
he been the person who shot Bailey, his blood and DNA would have necessarily been
found on the murder weapon. Thus, he contends that the failure to find his blood and
DNA on the murder weapon would be outcome determinative. He further contends that
the recovery of third-party DNA on the murder weapon would be outcome-determinative
in establishing that he was not the perpetrator.
{¶ 23} DNA testing was not performed on the gun before trial. The gun was tested
for blood, but no blood was found on it. The evidence demonstrated that the gun was
located three days after Bailey was shot, in an outdoor trashcan behind a residence. The
State’s expert witness provided unrebutted testimony that the elements, or even the trash
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in the can, could have removed any traces of blood from the weapon.
{¶ 24} Even if Bell’s DNA were not found on the gun, we cannot say that that
finding would be outcome determinative. First, there is no evidence that Bell touched
the gun with his injured hand. Further, given the testimony of the State’s expert that
leaving a gun exposed to the elements and trash could eliminate traces of blood and the
testimony of the eyewitness who identified Bell as the shooter, a reasonable jury could
still have found him guilty of the charges set forth in the indictment based upon the
testimony of the State’s witnesses. The mere fact that someone else’s DNA might be
found on the gun would not be outcome determinative, given that the gun was not located
for three days and was left in a trashcan where others could have touched it.
{¶ 25} Based upon our review of the trial court record, we conclude that the trial
court did not err in denying Bell’s application for DNA testing as there is no support for his
claim that such testing would be outcome determinative. Accordingly, the first
assignment of error is overruled.
IV. Conclusion
{¶ 26} Both of Bell’s assignments of error being overruled, the judgment of the trial
court is affirmed.
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EPLEY, J. and LEWIS, J., concur.
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Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Diahntae Bell
Hon. Mary E. Montgomery