State v. Isa , 2024 Ohio 980 ( 2024 )

[Cite as State v. Isa, 2024-Ohio-980.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2023-CA-28
:
v. : Trial Court Case No. 2007 CR 207
:
ABRAHAM ISA : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
...........
OPINION
Rendered on March 15, 2024
...........
ABRAHAM ISA, Appellant, Pro Se
JANE A. NAPIER, Attorney for Appellee
.............
WELBAUM, J.
{¶ 1} Defendant-Appellant, Abraham Isa, appeals pro se from a judgment denying
his application for DNA testing, his motion for leave to file a delayed motion for a new trial,
and his request for documents under the Ohio Public Records Act. Isa does not present
specific assignments of error but appears to be asserting prosecutorial misconduct at trial
and ineffective assistance of trial counsel. For the reasons discussed below, Isa’s
-2-
arguments are without merit. Accordingly, the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 2} As a preliminary point, this is the eleventh appeal Isa has made to this court
concerning his 2007 conviction. He has also unsuccessfully filed habeas petitions in
federal court and in the Supreme Court of Ohio. The history of his many filings is
complex due to its volume.
{¶ 3} In November 2008, we affirmed on direct appeal Isa’s conviction on thirteen
counts of gross sexual imposition and two counts of rape. State v. Isa, 2d Dist.
Champaign No. 07-CA-37, 2008-Ohio-5906, ¶ 1-66 (Isa I). The five sexual assault
victims in that case had been employed at a Sunoco station and subway shop that Isa
owned and some victims were minors. Id. at ¶ 1-2. At trial, the victims testified that Isa
had “inappropriately touched their breasts and their buttocks and put his hands down their
pants. Two of the victims testified Isa placed his finger in their vaginas. Some of them
testified Isa exposed his penis to them and forced them to touch his penis.” Id. at ¶ 5.
{¶ 4} On direct appeal, Isa raised two assignments of error: (1) the trial court erred
in failing to declare a mistrial due to prosecutorial misconduct in asking about Isa’s prior
conviction; and (2) Isa received ineffective assistance of trial counsel. We rejected both
assignments of error. Id. at ¶ 13 and 65. Isa then appealed from our decision to the
Supreme Court of Ohio, which refused to accept the appeal. See State v. Isa, 121 Ohio
St.3d 1440, 2009-Ohio-1638, 903 N.E.2d 1223.
{¶ 5} In August 2010, we affirmed two post-trial orders by the trial court: (1) the
-3-
denial of Isa’s motion for resentencing, which had alleged the sentencing entry failed to
provide for post-release control; and (2) the denial of Isa’s motion to correct his 24.5-year
prison sentence to 23 years. See State v. Isa, 2d Dist. Champaign Nos. 10-CA-1 and
10-CA-2, 2010-Ohio-3770, ¶ 1-38 (Isa II and III). As indicated, the two appeals were
considered together. We concluded that post-release control, in fact, was in the
sentencing entry and had been discussed during sentencing. Id. at ¶ 10-12. In addition,
we found the trial court had not abused its discretion in overruling the motion to correct
the sentence. Id. at ¶ 36. The Supreme Court of Ohio again declined review. See
State v. Isa, 127 Ohio St.3d 1485, 2010-Ohio-6371, 939 N.E.2d 183.
{¶ 6} In December 2011, Isa filed a habeas petition in federal district court, and
that petition was dismissed in January 2012. See Isa v. Warden, Chillicothe Corr. Inst.,
S.D.Ohio No. 3:11-CV-461, 2012 WL 214316, *1 (Jan. 24, 2012) (dismissing habeas
petition and denying leave for any certificate of appealability). In this particular habeas
action, Isa had asserted ineffective assistance of trial and appellate counsel and the trial
court’s failure to follow evidentiary rules. Isa v. Robinson, S.D.Ohio No. 3:11-CV-461,
2012 WL 10286, *1-2 (Jan 3, 2012) (magistrate’s decision recommending dismissal).
{¶ 7} Isa then filed a second habeas petition in federal district court in July 2012;
the court dismissed the petition in August 2012, based on expiration of the statute of
limitations. See Isa v. Robinson, S.D.Ohio No. 3:12-CV-249, 2012 WL 3063896, *2 (July
2, 2012) (magistrate’s decision recommending dismissal with prejudice); Isa v. Warden,
Chillicothe Corr. Inst., S.D.Ohio No. 3:12-CV-249, 2012 WL 3528159, *1 (Aug. 14, 2012)
(adopting magistrate’s decision and dismissing habeas petition).
-4-
{¶ 8} In September 2012, Isa filed a pro se motion in the trial court seeking to
vacate his conviction as contrary to law. See State v. Isa, 2d Dist. Champaign No. 2012-
CA-44, 2013-Ohio-3382, ¶ 1 (Isa IV). Despite the styling of the caption of the motion and
its first page, we concluded that Isa was actually asserting ineffective assistance of trial
counsel based on counsel’s alleged advice to reject a plea bargain and counsel’s alleged
failure to advise Isa of the deportation consequences. Id. at ¶ 3 and 5. The trial court
dismissed the matter as an untimely post-conviction petition, and we affirmed. Id. at ¶ 3
and 10. Our decision affirming the trial court judgment was issued on August 2, 2013.
No appeal was taken from this decision.
{¶ 9} While the appeal of that post-conviction motion was pending, Isa had filed a
March 13, 2013 motion in the trial court seeking leave to file a motion for new trial. This
motion was based on alleged newly discovered evidence that Isa’s sons had committed
the crimes or had caused the victims to testify against Isa. State v. Isa, 2d Dist.
Champaign No. 2013-CA-20, 2014-Ohio-139, ¶ 4 (Isa V). We agreed with the trial court
that Isa had failed to present clear and convincing evidence that he could not have timely
discovered the alleged evidence or the grounds for his untimely motion. Id. at ¶ 12-13.
Our opinion was issued on January 17, 2014. Isa appealed from this decision as well,
but the Supreme Court of Ohio denied appeal on May 14, 2014. State v. Isa, 138 Ohio
St.3d 1492, 2014-Ohio-2021, 8 N.E.3d 962 (denying motion for delayed appeal).
{¶ 10} Isa filed three additional motions in the trial court in 2013 but did not appeal
from the trial court’s denial of these motions. See State v. Isa, 2d Dist. Champaign No.
2014-CA-31, 2015-Ohio-2876, ¶ 5 (Isa VI).
-5-
{¶ 11} On May 28, 2014, Isa filed a pro se habeas petition in the Supreme Court
of Ohio. The court dismissed the petition sua sponte on September 14, 2014. See Isa
v. Robinson, 140 Ohio St.3d 1434, 2014-Ohio-4160, 16 N.E.3d 678.
{¶ 12} While the habeas case was pending in the Supreme Court of Ohio, Isa filed
yet another motion in the trial court. This time, Isa moved for resentencing, claiming the
trial court made various statutory errors that caused the sentence to be void in part. Isa
VI at ¶ 6. We agreed with the trial court that even if the court had failed to notify Isa that
he could be ordered to perform community service in lieu of paying court costs, that did
not render the sentence void. The claim was also barred by res judicata because Isa
had not raised the matter on direct appeal. Id. at ¶ 9-15. Our opinion affirming the trial
court judgment was issued on July 17, 2015. Isa did not appeal from this decision to the
Supreme Court of Ohio.
{¶ 13} Shortly thereafter, on August 10, 2015, Isa again filed a pro se motion for
new trial. This time, Isa asserted he had recently discovered additional evidence
showing that his sons had committed the offenses and had manipulated the victims to
testify against him. See State v. Isa, 2d Dist. Champaign No. 2015-CA-35, 2016-Ohio-
4979, ¶ 7 (Isa VII). Isa also again raised trial counsel’s alleged ineffectiveness
concerning the plea offer and also claimed counsel had acted ineffectively by failing to
obtain an Arabic interpreter for trial. Id. We concluded the ineffective assistance claim
was barred by res judicata because the language barrier issue did not rely on evidence
outside the record. This claim was also untimely because Isa failed to show he had
unavoidably been prevented from discovering the pertinent facts. Id. at ¶ 15-17.
-6-
{¶ 14} As to the discovery of new evidence, this claim was based on affidavits Isa
had obtained from two former male employees who were by then fellow-inmates. Id. at
¶ 8. In this regard, we noted: Isa had employed the men before he was indicted; the
men had been aware of the charges; Isa had given his attorney one of the men’s names
before trial; and that man’s affidavit indicated he had expected to be called as a witness
at trial. Id. at ¶ 25. We also stressed that even though Isa was incarcerated, his affidavit
did not “account for the nine years it took to come into contact with” these witnesses. Id.
Furthermore, while Isa was incarcerated, he “was not prevented from attempting to
contact these witnesses himself or through a representative.” Id. We therefore affirmed
the trial court’s judgment on July 15, 2016. Isa did not appeal this decision to the
Supreme Court of Ohio.
{¶ 15} Also on July 15, 2016, we issued another opinion affirming the trial court’s
denial of Isa’s pro se motion to correct a void judgment, which Isa had filed on September
15, 2015. State v. Isa, 2d Dist. Champaign No. 2015-CA-44, 2016-Ohio-4980, ¶ 1 (Isa
VIII). While Isa’s pro se brief failed to assert assignments of error, we surmised that he
was “challenging his sentence on grounds that it violated the prohibition against sentence
packaging as announced in State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846
N.E.2d 824.” Id. at ¶ 7. We found the claim barred by res judicata and also held that,
even if we considered it on the merits, Isa’s sentence did not violate this doctrine. Id. at
¶ 9-12. No appeal was taken from this decision to the Supreme Court of Ohio.
{¶ 16} On December 29, 2016, Isa filed a pro se motion in the trial court seeking
to vacate a void judgment. This motion was based on alleged discrepancies between
-7-
the sentencing hearing and the judgment entry. State v. Isa, 2d Dist. Champaign Nos.
2017-CA-5 and 2017-CA-20, 2017-Ohio-8335, ¶ 9 (Isa IX and X). Isa had also filed
another motion in the trial court on March 8, 2017, seeking correction of an alleged clerical
error in the sentence imposed in the judgment entry. Id. at ¶ 10. After Isa appealed
from both judgments, we consolidated the appeals. Id. at ¶ 11.
{¶ 17} Concerning sentencing, we found the claim barred by res judicata but also
concluded on the merits that any discrepancy was harmless. Our reasoning was that
the sentences in question were imposed concurrently with another much longer sentence.
Consequently, even though the sentences were not discussed during the sentencing
hearing, they were imposed in the judgment entry, and the discrepancy had no effect.
Id. at ¶ 15-22.
{¶ 18} We also rejected Isa’s request for a nunc pro tunc sentencing entry
removing the sentences, because such an entry is only appropriate for correcting clerical
error. Using such a procedure to remove the sentences would not reflect the court’s
intent, which was to impose them. Id. at ¶ 24-26. Our decision was filed on October
27, 2017, and Isa did not appeal from it to the Supreme Court of Ohio.
{¶ 19} Around five-and-a-half years later, on April 3, 2023, Isa filed a motion in the
trial court seeking leave to file a delayed motion for new trial. Isa alleged several grounds
but only referenced ineffective assistance of trial counsel. These claims were that
counsel acted ineffectively by failing to object to sentencing and by “lack of sufficient
investigation into the request for DNA and his [presumably counsel’s] lack of objections
to his client.” Motion for Leave to File a Motion for New Trial (Apr. 3, 2023), p. 3. No
-8-
affidavits were attached to the new trial motion.
{¶ 20} On April 17, 2023, Isa also filed an application for DNA testing. The
application asserted that DNA evidence could have been used to discredit the victims’
testimony, that Isa was denied the use of an interpreter at trial, and that his trial attorney
was ineffective. Isa additionally alleged that no discovery was given by the prosecution
to his attorney. As support for this latter statement, Isa attached an October 26, 2022
letter from the Champaign County Clerk of Courts. In response to a request from Isa,
the clerk said, “No discovery was filed in your Case #2007CR207. The county
Prosecutor is in possession of the discovery in your case, you will need to send a request
to the Champaign County Prosecutor.” DNA Application, Ex. A, p. 1.1
{¶ 21} On May 9, 2023, Isa filed an affidavit of indigency. He attached a May 8,
2023 letter to the clerk of courts in which he had sought to obtain records pertaining to
his “court appointed attorney,” Lori Reisinger (who was actually the assistant prosecuting
attorney assigned to the case at the time of trial).
{¶ 22} Subsequently, on June 5, 2023, Isa filed an application with the federal
district court seeking DNA testing. See Isa v. Warden, London Corr. Inst., S.D.Ohio No.
1 We interpret this statement to mean that no discovery had been filed with the clerk of
courts, not that Isa’s attorney failed to receive discovery from the prosecutor, as Isa
suggests. The clerk was simply informing Isa that it did not have any materials and that
he should ask the prosecutor. Filing discovery materials with the clerk would be very
unusual. Selected “discovery” materials may be submitted to courts as exhibits, for
example, during suppression hearings and trial. However, the record here contains no
indication that any exhibits were identified or submitted during trial. This is not surprising,
since the victims did not seek medical treatment, no DNA or other physical evidence was
collected, and the trial essentially consisted of the testimony of the victims and Isa. See
Voir Dire Transcript (“Trial 2 Tr.”), 1-562 (three volumes of transcripts from the November
29, 2007 trial). A few officers testified about their investigation, but they did not refer to
documents or other physical evidence.
-9-
3:23-CV-150, 2023 WL 5210538, *1 (July 20, 2023). On July 20, 2023, a magistrate
recommended dismissal of the action due to Isa’s failure to comply with a Deficiency
Order that required him to either pay a $5.00 filing fee within 30 days or file a poverty
affidavit. Isa was also required to refile the application on the court’s official form. Id.The court subsequently adopted the magistrate’s recommendation and dismissed the
action without prejudice. Isa v. Warden, London Corr. Inst., S.D.Ohio No. 3:23-CV-150,
2023 WL 5209513, *1 (Aug. 14, 2023).
{¶ 23} In the meantime, on June 6, 2023, Isa had filed another application for DNA
testing in the trial court. The application was the same as the one previously submitted
but included an affidavit explaining that delay in being able to present an “affirmative
defense” was beyond Isa’s control due to the delay in receiving the clerk’s October 26,
2022 letter. Isa again referenced ineffective assistance of trial counsel and the fact that
his request for a translator was not answered.
{¶ 24} On July 5, 2023, the trial court filed correspondence it had received from
Lori Reisinger, who was by then a judge in the Champaign County Juvenile Court. The
correspondence included Isa’s June 24, 2023 letter to Reisinger making a public records
request for all discovery in Isa’s criminal case, and a June 21, 2023 letter from an
assistant to the Champaign County Prosecutor. The prosecutor denied Isa’s public
records request pursuant to R.C. 149.43(B)(8).
{¶ 25} On July 24, 2023, the trial court denied Isa’s application for DNA testing, the
motion for leave to file a motion for new trial, and the public records request. Journal
Entry Denying Defendant’s Application for DNA Testing; Motion for Leave to File a
-10-
Delayed Motion for New Trial; and Request for Documents Under the Ohio Public
Records Act (July 24, 2023) (“Journal Entry”). Isa then timely appealed pro so from the
trial court’s decision.
II. Discussion
{¶ 26} As a preliminary point, App.R. 16(A)(1)-(8) requires briefs to conform to
certain standards. Isa’s brief does not comply with these requirements, including “[a]
statement of the assignments of error presented for review, with reference to the place in
the record where each error is reflected.” App.R. 16(A)(3). While Isa makes blanket
statements like “First Issue at Trial,” followed by “Prosecutorial Misconduct,” this is not
proper phrasing of assignments of error. The brief is deficient in other ways as well.
The law is well-established that “[l]itigants who choose to proceed pro se are presumed
to know the law and correct procedure, and are held to the same standards as other
litigants.” Yocum v. Means, 2d Dist. Darke No. 1576, 2002-Ohio-3803, ¶ 20, citing Kilroy
v. B.H. Lakeshore Co., 111 Ohio App.3d 357, 363, 676 N.E.2d 171 (8th Dist.1996).
{¶ 27} We are permitted to summarily strike a party’s brief or dismiss the appeal
for failure to comply with App.R. 16, but we can also review the matter in the interests of
justice. E.g., State v. Bolton, 2017-Ohio-8903, 100 N.E.3d 1275, ¶ 13 (2d. Dist.). We
will do so here.
{¶ 28} Isa’s brief appears to raise two issues. The first is prosecutorial
misconduct, which, according to Isa, consisted of the following: (1) taking advantage of
Isa’s difficulty in speaking and understanding the English language; (2) leading witnesses
-11-
and scripting their testimony; (3) failing to investigate the allegations against Isa, including
failing to check close-circuit television cameras at his business; and (4) eliciting hearsay
testimony that the defense failed to challenge. Appellant’s Brief, p. 1-3.
{¶ 29} The second issue involves ineffective assistance of trial counsel. In this
regard, Isa contends that trial counsel acted ineffectively in the following ways: (1) failing
to arrange for a translator; and (2) failing to conduct basic investigation, including: (a)
reviewing the business camera footage, which allegedly would have shown that no
misconduct occurred; (b) pulling employment records; and (c) interviewing or calling
witnesses. Id. at p. 3-6.
{¶ 30} “The doctrine of res judicata bars someone from raising a claim that could
have been raised and litigated in a prior proceeding.” State v. Blanton, 171 Ohio St.3d
19, 2022-Ohio-3985, 215 N.E.3d 467, ¶ 2, citing State v. Perry, 10 Ohio St.2d 175, 180,
226 N.E.2d 104 (1967). Consequently, courts will not consider claims that could have
been decided on direct appeal. Id. An exception exists, where “either (1) the petitioner
had the same attorney at trial and on appeal or (2) he must rely on evidence outside the
trial record to establish his claim for relief. * * * The converse is that when the petitioner
had a new attorney on appeal and the claim could have been litigated based on the trial
record, res judicata applies and the postconviction claim is barred.” Id., citing State v.
Cole, 2 Ohio St.3d 112, 113-114, 443 N.E.2d 169 (1982).
{¶ 31} The record here indicates that Isa’s counsel for his trial and his direct appeal
were different. See Isa I, 2d Dist. Champaign No. 2007-CA-37, 2008-Ohio-5906. More
importantly, as the factual background reveals, the issues being raised have been
-12-
litigated many times previously during various post-conviction proceedings. Isa is also
raising matters that occurred at trial and could have been raised on direct appeal. In the
rare situation where Isa has alleged something that could be outside the record, like
counsel’s failure to review security camera footage, Isa has offered no affidavits,
documents, or evidence that was outside the trial court record to support any of his claims.
Therefore, res judicata applies, and Isa is precluded from again raising prosecutorial
misconduct or ineffective assistance of trial counsel based on matters that occurred
during trial.
{¶ 32} Furthermore, Isa has failed on appeal to address the issues the trial court
actually did decide: the motion for leave to file a delayed new trial motion; the DNA testing
application; and the public records request. Isa does mention the application and new
trial motion in passing but offers no argument about these matters.
{¶ 33} Under App.R. 12(A), we “may disregard an assignment of error presented
for review if the party raising it fails to identify in the record the error on which the
assignment of error is based or fails to argue the assignment separately in the brief, as
required under App.R. 16(A).” Nonetheless, we may choose to consider the error or to
consider plain error. E.g., Rose v. Cochran, 2d Dist. Montgomery No. 25498, 2013-Ohio-
3755, ¶ 5 (employing plain error doctrine); State v. Huelsman, 2d Dist. Miami No. 2022-
CA-21, 2023-Ohio-649, ¶ 8 (considering error that was not properly alleged); State v.
Lauharn, 2d Dist. Miami No. 2010-CA-35, 2011-Ohio-4292, ¶ 7 (addressing error briefly).
We note the State made no attempt in its brief to address anything other than the
prosecutorial misconduct and ineffective assistance of counsel issues.
-13-
A. New Trial
{¶ 34} Crim.R. 33(A) allows new trials to be granted on various grounds. As
relevant here, Isa alleged the following grounds: “Irregularity in the proceedings of the
court, jury, magistrate, or prevailing party, or any order of the court or magistrate, or abuse
of discretion, by which an aggrieved party was prevented from having a fair trial”;
“Misconduct of the jury, prosecuting attorney, or the witnesses for the state”; “Accident or
surprise which ordinary prudence could not have guarded against”; “The judgment is
contrary to law”; and “Newly discovered evidence, material for the party applying, which
with reasonable diligence he could not have discovered and produced at trial.” Motion
for Leave to File a Delayed Motion for New Trial (Apr. 3, 2023), p. 3. These correspond
to the grounds listed in Crim.R. 33(A)(1), (2), (3), (4), and (6).
{¶ 35} Crim.R. 33(B) provides time limits within such motions must be filed.
Clearly those limits had expired here; the trial ended in November 2007. Isa has also
filed such new trial motions before and they have been rejected. See Isa V, 2d Dist.
Champaign No. 2013-CA-20, 2014-Ohio-139; Isa VII, 2d Dist. Champaign No. 2015-CA-
35, 2016-Ohio-4979.
{¶ 36} “A trial court's decision on a Crim.R. 33 motion for a new trial will not be
reversed absent an abuse of discretion.” State v. Gillispie, 2d Dist. Montgomery No.
24456, 2012-Ohio-1656, ¶ 31, citing State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54(1990), paragraph one of the syllabus; State v. Matthews, 81 Ohio St.3d 375, 378, 691
N.E.2d 1041 (1998). “ ‘Abuse of discretion’ has been defined as an attitude that is
-14-
unreasonable, arbitrary or unconscionable.” (Citation omitted.) AAAA Ents., Inc. v.
River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553
N.E.2d 597 (1990). Usually, abuse of discretion involves decisions that are based on
unsound reasoning rather than being capricious or arbitrary. Id.{¶ 37} “In order to file a motion for new trial after the expiration of the time periods
specified in Crim.R. 33(B), a defendant must first seek leave of the trial court to file a
delayed motion.” State v. DeVaughns, 2018-Ohio-1421, 110 N.E.3d 922, ¶ 18 (2d Dist.).
(Other citations omitted.) “ ‘To obtain leave, defendant must demonstrate by clear and
convincing evidence that he or she was unavoidably prevented from timely filing the
motion for a new trial or discovering the new evidence within the time period provided by
Crim.R. 33(B).’ ” Id., quoting State v. Warwick, 2d Dist. Champaign No. 2001-CA-33,
2002 WL 1585663, *2 (July 19, 2002). “ ‘[A] party is unavoidably prevented from filing a
motion for new trial if the party had no knowledge of the existence of the ground
supporting the motion for new trial and could not have learned of the existence of that
ground within the time prescribed for filing the motion for new trial in the exercise of
reasonable diligence.’ ” State v. Parker, 178 Ohio App.3d 574, 2008-Ohio-5178, 899
N.E.2d 183, ¶ 16 (2d Dist.), quoting State v. Walden, 19 Ohio App.3d 141, 145-146, 483
N.E.2d 859 (10th Dist.1984).
{¶ 38} The trial court rejected Isa’s new trial motion because Isa failed to explain
why he previously could not have raised the matters that were asserted in the motion.
Judgment Entry at p. 7. Having reviewed the record, we agree. Accordingly, the trial
court did not abuse its discretion in denying Isa’s motion.
-15-
B. Application for DNA Testing
{¶ 39} The fact that no DNA test was performed before or during the initial trial
proceedings is undisputed. In this situation, R.C. 2953.74(B) provides that “the court
may accept the application only if:”
(1) The offender did not have a DNA test taken at the trial stage in
the case in which the offender was convicted of the offense for which the
offender is an eligible offender and is requesting the DNA testing regarding
the same biological evidence that the offender seeks to have tested, the
offender shows that DNA exclusion when analyzed in the context of and
upon consideration of all available admissible evidence related to the
subject offender's case as described in division (D) of this section would
have been outcome determinative at that trial stage in that case, and, at the
time of the trial stage in that case, DNA testing was not generally accepted,
the results of DNA testing were not generally admissible in evidence, or
DNA testing was not yet available.
{¶ 40} “ ‘Outcome determinative’ means that ‘there is a strong probability that no
reasonable factfinder would have found the offender guilty of [the] offense’ for which he
or she was convicted if the DNA results had been presented and found relevant and
admissible at trial and ‘had those results been analyzed in the context of and upon
consideration of all available admissible evidence related to the offender's case.’ ” State
v. Scott, 171 Ohio St.3d 651, 2022-Ohio-4277, 220 N.E.3d 668, ¶ 7, quoting R.C.
-16-
2953.71(L). In deciding if the outcome-determinative requirement has been satisfied,
trial courts “ ‘shall consider all available admissible evidence related to the subject
offender's case.’ ” Id., quoting R.C. 2953.74(D).
{¶ 41} Further restrictions are that trial courts “may ‘accept’ an eligible inmate's
application for DNA testing only if the following factors are present: (1) biological material
was collected from the crime scene or the victim(s), and the parent sample of that
biological material still exists; ( 2) the parent sample of the biological material is sufficient,
demonstrably uncorrupted, and scientifically suitable for testing; (3) the identity of the
perpetrator of the charged offense was an issue at the inmate's trial; (4) a defense theory
at trial was such that it would permit a conclusion that an ‘exclusion result will be outcome
determinative’; and (5) ‘if DNA testing is conducted and an exclusion result is obtained,
the results of the testing would be outcome determinative.’ ” State v. Emerick, 170 Ohio
App.3d 647, 2007-Ohio-1334, 868 N.E.2d 742, ¶ 15 (2d Dist.), referencing R.C.
2953.74(B) and (C). If any one of these factors does not exist, the court cannot grant
the application. Id. at ¶ 16. Accord State v. Warren, 2022-Ohio-4743, 203 N.E.3d 903,
¶ 12 (2d Dist.).
{¶ 42} Decisions whether to accept DNA applications are within a court’s
discretion. Therefore, review is for abuse of discretion. Scott at ¶ 10.
{¶ 43} In rejecting the application, the trial court found that Isa had failed to
establish any of the factors in R.C. 2953.74(B)(1). Journal Entry at p. 3. In addition, the
court found that R.C. 2953.74(C)(3) was not satisfied because the identity of the
perpetrator had not been at issue at trial. Specifically, five victims testified as to Isa’s
-17-
sexual contact, and they did not identify any piece of clothing they were wearing at the
time of the incidents. Id. at p. 4. Isa also did not claim at trial that another individual
was responsible; instead, he denied having sexual contact with the victims. Id. Having
reviewed the evidence in the record, we agree with the trial court and find no abuse of
discretion.
{¶ 44} In Isa’s first jury trial (at which his motion for a mistrial was granted), there
was no claim that someone else committed the alleged crimes. See Transcript of Trial
Proceedings (Trial 1), 22-24 (defense’s opening statement) and 154 (Isa stated to police
that the allegations “were all lies”). During the second jury trial, which convened a few
weeks later, Isa did not claim that other persons were responsible; instead, he asserted
there was no physical evidence and there were no witnesses to the alleged crimes. Isa
also denied having committed the crimes. Trial 2 Tr. at 20-23 (defense’s opening
statement); 209 (Isa denied all allegations to the police); 214 (victims did not tell police
there were any witnesses); 461, 464-465, 482, 492, and 494 (Isa’s testimony denying all
allegations of sexual contact); and 524 (defense’s closing argument). In view of these
facts, the trial court correctly found that the issue at trial was not the perpetrator’s identity.
This was fatal to the application. Accordingly, the court did not abuse its discretion in
denying Isa’s application for DNA testing.
C. Public Records Request
{¶ 45} As indicated, the Champaign County Prosecutor denied Isa’s request for
records of all discovery in the case. The trial court also denied Isa’s request, concluding
-18-
that Isa had failed to show he needed the requested documents to support a justiciable
claim. Journal Entry at 8. The court further stressed that Isa had failed to identify a
pending proceeding to which the records would be material and that Isa had failed to
show the records were material to his DNA application or to his motion for leave to file a
motion for new trial. Id.
{¶ 46} R.C. 149.43 outlines procedures for obtaining public records. In this
regard, R.C. 149.43(B)(1) provides: “Upon request by any person and subject to division
(B)(8) of this section, all public records responsive to the request shall be promptly
prepared and made available for inspection to the requester at all reasonable times during
regular business hours.” In turn, division (B)(8) states that:
A public office or person responsible for public records is not required
to permit a person who is incarcerated pursuant to a criminal conviction or
a juvenile adjudication to inspect or to obtain a copy of any public record
concerning a criminal investigation or prosecution or concerning what would
be a criminal investigation or prosecution if the subject of the investigation
or prosecution were an adult, unless the request to inspect or to obtain a
copy of the record is for the purpose of acquiring information that is subject
to release as a public record under this section and the judge who imposed
the sentence or made the adjudication with respect to the person, or the
judge's successor in office, finds that the information sought in the public
record is necessary to support what appears to be a justiciable claim of the
person.
-19-
{¶ 47} The Supreme Court of Ohio has characterized the language in R.C.
149.43(B)(8) as “ ‘broad and encompassing.’ ” State ex rel. Ware v. Giavasis, 160 Ohio
St.3d 383, 2020-Ohio-3700, 157 N.E.3d 710, ¶ 6, quoting State ex rel. Russell v.
Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶ 14. This part of the
statute also “ ‘clearly sets forth heightened requirements for inmates seeking public
records.’ ” (Emphasis sic.) State ex rel. Ellis v. Cleveland Police Forensic Laboratory,
157 Ohio St.3d 483, 2019-Ohio-4201, 137 N.E.3d 1171, ¶ 9, quoting Russell at ¶ 14.
{¶ 48} Trial court decisions under R.C. 149.43(B)(8) are reviewed for abuse of
discretion. E.g., State v. Stinson, 2d Dist. Montgomery No. 28073, 2019-Ohio-401, ¶ 8.
No abuse of discretion occurred here.
{¶ 49} We have held that “[c]laims barred by res judicata are not justiciable.”
State v. Reid, 2d Dist. Montgomery No. 24672, 2012-Ohio-1659, ¶ 9. That would apply
to Isa’s attempt to file a new trial motion, which was barred by res judicata. We did
remark in Reid that res judicata would not apply to claims based on discovery of new
evidence. Id. at ¶ 10, citing State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959
N.E.2d 516. However, for the reasons we have mentioned, this ground was not
established; Isa offered nothing to show either that new evidence existed or that he had
been prevented from discovering it.
{¶ 50} Furthermore, while the application for DNA testing was not barred by res
judicata, Isa failed to indicate in the trial court why trial discovery materials would assist
in that proceeding. In fact, he made no specific argument at all.
{¶ 51} Based on the preceding discussion, Isa’s purported assignments of error
-20-
are overruled.
III. Conclusion
{¶ 52} All of Isa’s assignments of error having been overruled, the judgment of the
trial court is affirmed.
.............
EPLEY, P.J. and TUCKER, J., concur.