State v. Prade , 107 N.E.3d 1268 ( 2018 )

[Cite as State v. Prade, 2018-Ohio-3551.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28193
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DOUGLAS PRADE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 1998-02-0463
DECISION AND JOURNAL ENTRY
Dated: September 5, 2018
TEODOSIO, Judge.
{¶1} Defendant-Appellant, Douglas Prade, appeals from the judgment of the Summit
County Court of Common Pleas, denying his motion for a new trial. This Court affirms.
I.
{¶2} Almost twenty years ago, a jury convicted Mr. Prade for the aggravated murder of
his ex-wife, Dr. Margo Prade. In 2013, a trial court found him actually innocent due, in large
part, to new DNA evidence. The court granted Mr. Prade’s motion for post-conviction relief, but
also found that he was entitled to a new trial “should [its] order granting post-conviction relief be
overturned pursuant to appeal * * *.” On appeal, this Court did, in fact, overturn the post-
conviction ruling. See State v. Prade, 9th Dist. Summit No. 26775, 2014-Ohio-1035. We did
not address the alternative ruling for a new trial, however, because it was conditional in nature
and, as such, did not constitute a final, appealable order. See id. ¶ 15, fn. 3. See also State v.
Prade, 9th Dist. Summit No. 26814 (Mar. 27, 2013) (dismissing State’s first attempted appeal
2
from the new trial order). It was our mandate that the post-conviction ruling be reversed and the
cause remanded for further proceedings consistent with our opinion.1 Prade, 2014-Ohio-1035, at
¶ 131.
{¶3} Following our remand, the State immediately appealed from the new trial ruling
to protect its appellate rights in the event that our decision had rendered the trial court’s
conditional ruling final. This Court dismissed the appeal, however, and reiterated that the new
trial ruling was not final and appealable.2 See Sate v. Prade, 9th Dist. Summit No. 27323 (Aug.
14, 2014). The State then filed a motion in the trial court, requesting reconsideration of the new
trial ruling. Though Mr. Prade opposed that request and asked the court to simply reenter the
new trial ruling on an unconditional basis, the court refused to do so.3
{¶4} Subsequently, Mr. Prade filed a supplemental memorandum in support of his
motion for a new trial. The trial court accepted numerous briefs from both parties and ultimately
set the matter for an evidentiary hearing, limited to testimony from the four DNA experts who
had testified at the post-conviction hearing. When the hearing concluded, the court took the
matter under advisement and allowed the parties to file post-hearing briefs. Upon review of all
1
Mr. Prade sought to appeal from this Court’s judgment, but the Ohio Supreme Court declined
jurisdiction over his appeal. See State v. Prade, Ohio Supreme Court Case No. 2014-0432 (July
23, 2014). He also later sought a writ of prohibition in the Ohio Supreme Court, arguing that this
Court lacked jurisdiction to review and overturn a finding of actual innocence. Upon review, the
Ohio Supreme Court denied his writ. See State ex rel. Prade v. Ninth Dist. Court of Appeals,
151 Ohio St. 3d 252, 2017-Ohio-7651.
2
Though Mr. Prade attempted to appeal this Court’s finality determination, the Ohio Supreme
Court declined jurisdiction over his appeal. See State v. Prade, Ohio Supreme Court Case No.
2014-1992 (Apr. 29, 2015).
3
Notably, the trial judge who had awarded Mr. Prade a new trial on a conditional basis was no
longer on the bench when this matter was remanded. Another trial judge, who had not heard the
post-conviction evidence, inherited the case.
3
the motions, briefs, testimony, and evidence in the case, the court then denied Mr. Prade’s
motion for a new trial.
{¶5} Mr. Prade now appeals from the trial court’s judgment and raises one assignment
of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN RECONSIDERING, AND ABUSED ITS
DISCRETION IN DENYING, THE MOTION FOR A NEW TRIAL.
{¶6} In his sole assignment of error, Mr. Prade argues that the trial court erred when it
reconsidered and denied his motion for a new trial. He argues that, upon remand from this
Court, the trial court should have simply reentered the 2013 new trial ruling on an unconditional
basis. Alternatively, he argues that the court abused its discretion when it rejected his motion on
its merits. We disagree with both propositions.
Reconsideration of the New Trial Ruling
{¶7} When the question presented on appeal is strictly one of law, this Court applies a
de novo standard of review. State v. Fry, 9th Dist. Medina No. 16CA0057-M, 2017-Ohio-9077,
¶ 4. “A de novo review requires an independent review of the trial court’s decision without any
deference to [its] determination.” State v. Consilio, 9th Dist. Summit No. 22761, 2006-Ohio-
649, ¶ 4.
{¶8} “The law-of-the-case doctrine provides that legal questions resolved by a
reviewing court in a prior appeal remain the law of that case for any subsequent proceedings at
both the trial and appellate levels.” Giancola v. Azem, Slip Opinion No. 2018-Ohio-1694, ¶ 1,
citing Nolan v. Nolan, 11 Ohio St. 3d 1, 3 (1984). “[T]he doctrine functions to compel trial
courts to follow the mandates of reviewing courts” such that trial court are “without authority to
4
extend or vary the mandate given.” Nolan at 3-4. Yet, the doctrine “‘comes into play only with
respect to issues previously determined * * *.’” Giancola at ¶ 16, quoting Quern v. Jordan, 440
U.S. 332, 347 (1979), fn. 18. It does not bind trial courts with respect to issues that fall outside
the compass of a reviewing court’s mandate. Giancola at ¶ 16, quoting Quern at 347, fn. 18,
quoting Sprague v. Ticonic Natl. Bank, 307 U.S. 161, 168 (1939).
{¶9} Mr. Prade argues that the trial court erred when it reconsidered his motion for a
new trial because, in doing so, it ignored a mandate from this Court. According to Mr. Prade,
this Court ordered the trial court, on remand, to reenter the 2013 new trial ruling on an
unconditional basis so as to generate a final, appealable order. He argues that the trial court
acted without authority when it chose to disregard that mandate and reconsider the ruling.
{¶10} The record does not support Mr. Prade’s contention that this Court issued a
mandate, ordering the trial court to reenter the 2013 new trial ruling. This Court has referenced
the 2013 new trial ruling, in varying degrees, on three separate occasions. On the first occasion,
the State attempted to appeal from the ruling, and this Court dismissed its appeal. See State v.
Prade, 9th Dist. Summit No. 26814 (Mar. 27, 2013). In doing so, we unequivocally held that the
new trial ruling was not a final, appealable order. See id., citing 46 Am. Jur. 2d Judgments § 168
(“If a judgment looks to the future in an attempt to judge the unknown, it is wholly void because
it leaves to speculation and conjecture what its final effect may be.”). Because the ruling was not
final, it was not properly before us, so we did not issue any mandate.
{¶11} On the second occasion, this Court referenced the new trial ruling in the
procedural history portion of our decision on the trial court’s post-conviction ruling. See Prade,
2014-Ohio-1035, at ¶ 13. We specifically noted, however, that the new trial ruling itself was not
5
at issue in the appeal. Id. at ¶ 15, fn. 3. Accordingly, we issued no mandate with respect to that
ruling.
{¶12} The third occasion arose when the State once again attempted to appeal from the
new trial ruling, following this Court’s decision on the post-conviction/actual innocence ruling.
See State v. Prade, 9th Dist. Summit No. 27323 (Aug. 14, 2014). In dismissing the State’s
second attempted appeal, we (1) reiterated our prior determination that the new trial ruling was
“conditional and, therefore, not final and appealable,” and (2) found that determination to be “the
law of the case with respect to this proceeding.” Id., citing State v. Prade, 9th Dist. Summit No.
26814 (Mar. 27, 2013). We then went on to discuss the actual language the trial court had
employed in its entry and why that language was problematic. We noted, in dicta, alternative
language that the court could have used to achieve a final order. In summarizing that discussion,
we wrote: “Thus, in order to make its decision to grant the motion for new trial a final order, the
trial court must simply reenter its order granting the motion for new trial on an unconditional
basis.” Prade, 9th Dist. Summit No. 27323, at *2 (Aug. 14, 2014). That language, however, did
not equate to a mandate ordering the trial court to take that action on remand. Compare App.R.
27. Because the State’s attempted appeal stemmed from a non-final order, our jurisdiction was
limited. See Ohio Constitution, Article IV, Section 3(B)(2) (appellate court jurisdiction limited
to reviewing final orders of lower courts). Consistent with that limited jurisdiction and our prior
determination, our decisive ruling was that the matter be dismissed for lack of a final, appealable
order. Any additional language in our journal entry was, at best, dicta and was not binding
authority on the lower court. See Giancola, 2018-Ohio-1694, at ¶ 16 (law of the case doctrine
only pertains to issues previously decided by a superior court and matters within the compass of
its controlling mandate).
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{¶13} This Court has long held that “interlocutory orders are the proper subject of
motions for reconsideration.” State v. Ford, 9th Dist. Summit No. 23269, 2006-Ohio-6961, ¶ 5.
Accord Stow v. Sexton, 9th Dist. Summit No. 17263, 1996 Ohio App. LEXIS 43, *4 (Jan. 10,
1996). When this Court reversed the trial court’s post-conviction ruling and remanded this
matter, the parties were placed in the position of being back before the trial court without it
having issued an unconditional ruling on Mr. Prade’s motion for a new trial. See Giancola at ¶
21, quoting State ex rel. Douglas v. Burlew, 106 Ohio St. 3d 180, 2005-Ohio-4382, ¶ 11, quoting
State ex rel. Stevenson v. Murray, 69 Ohio St. 2d 112, 113 (1982) (“‘‘[U]pon remand from an
appellate court, the lower court is required to proceed from the point at which the error
occurred.’’”). The trial court, therefore, had the authority to reconsider the initial ruling on Mr.
Prade’s motion for a new trial. See Ford at ¶ 5; Sexton at *4. Mr. Prade’s argument to the
contrary lacks merit.
Denial of the Motion for New Trial
{¶14} Crim.R. 33(A) allows a defendant to move for a new trial when his substantial
rights have been materially affected. The rule enumerates several grounds upon which a
defendant may seek a new trial, including newly discovered evidence. Crim.R. 33(A)(6).
To warrant the granting of a motion for a new trial based upon newly discovered
evidence, the defendant must show that the evidence:
“(1) discloses a strong probability that it will change the result if a new trial is
granted, (2) has been discovered since the trial, (3) is such as could not in the
exercise of due diligence have been discovered before the trial, (4) is material to
the issues, (5) is not merely cumulative to former evidence, and (6) does not
merely impeach or contradict the former evidence.”
State v. Tolliver, 9th Dist. Lorain No. 16CA010986, 2017-Ohio-4214, ¶ 18, quoting State v.
Petro, 148 Ohio St. 505 (1947), syllabus. This Court applies an abuse of discretion standard of
review when reviewing a trial court’s decision to grant or deny a motion for new trial based on
7
newly discovered evidence. Tolliver at ¶ 18. An abuse of discretion indicates that the trial court
was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983). When applying the abuse of discretion standard, an appellate court may
not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St. 3d
619, 621 (1993).
{¶15} The last judgment we issued in this matter outlined, in exhaustive detail, the
evidence that emerged at Mr. Prade’s trial. See Prade, 2014-Ohio-1035, at ¶ 20-70. Rather than
reproduce that discussion, we incorporate it herein and merely highlight certain pieces of
evidence for purposes of context.
{¶16} Dr. Margo Prade was murdered on the morning of November 26, 1997, in the
parking lot of her medical office. A lone assailant waited for her, approached her mini-van,
entered on the front passenger’s side, and shot her six times before fleeing. Signs of a struggle
were evident from the scene inside the van, but none of Dr. Prade’s personal belongings were
taken. The murder weapon was never found and there were no witnesses to the actual murder.
Yet, a bite mark, evidently left by the killer, was found on the underside of Dr. Prade’s upper,
left arm. She was wearing her lab coat at the time of her murder, so the section of the coat that
encompassed the bite mark (“the bite mark section”) was removed for DNA testing. At trial, the
jury heard testimony from DNA experts as well as bite mark identification experts.
{¶17} With regard to the DNA testing, the jury heard from Thomas Callaghan, a
forensic DNA examiner for the FBI. He explained that the FBI used polymerase chain reaction
testing (“PCR testing”) to test three cuttings from the bite mark section. Because the bite mark
section was saturated with Dr. Prade’s blood, however, the PCR testing only uncovered a single
DNA profile consistent with her DNA. No additional profile that might have belonged to the
8
killer emerged. Consequently, even if the killer had left DNA on the bite mark section, the FBI’s
tests were unable to detect it.
{¶18} With regard to bite mark identification, the jury heard from three dental experts.
See Prade, 2014-Ohio-1035, at ¶ 63-70. Dr. Lowell Levine, the State’s first expert, testified that
the bite mark pattern left on Dr. Prade was consistent with Mr. Prade’s dentition, meaning that he
could have caused it. Dr. Thomas Marshall, the State’s second expert, testified that the bite mark
pattern left on Dr. Prade matched Mr. Prade’s dentition, meaning that he definitively caused it.
Finally, Dr. Peter Baum, Mr. Prade’s expert, testified that it was virtually impossible for Mr.
Prade to bite anything due to a poorly fitted upper denture. Each expert was subjected to
rigorous cross-examination and each made various concessions. For instance, Dr. Levine readily
admitted that Dr. Prade’s clothing could have affected the bite mark impression, that someone
other than Mr. Prade could have caused it, and that he could only say, based on the limited value
of the impression, that Mr. Prade might have been responsible for it. Accordingly, the jury heard
a range of testimony on the issue of bite mark identification.
{¶19} The jury also heard a wealth of circumstantial evidence tending to implicate Mr.
Prade. See id. at ¶ 121-127. There was evidence that he was verbally and physically abusive
towards Dr. Prade during their marriage and engaged in stalking behavior both before and after
they separated (e.g., wiretapping her calls, tracking her whereabouts, and accessing her medical
office in the middle of the night). There was evidence that her murder occurred at a time when:
(1) she was contemplating a new marriage and more children; (2) she planned on seeking a child
support increase; (3) Mr. Prade’s finances were in jeopardy; and (4) an insurance policy on her
life, for which Mr. Prade was the sole beneficiary, was set to expire. With regard to the latter,
9
there was evidence that, shortly before the murder, Mr. Prade handwrote a tally sheet, subtracting
his debts from that policy amount.
{¶20} Two witnesses placed Mr. Prade at the murder scene. The first witness said he
saw Mr. Prade walking in an area adjacent to Dr. Prade’s medical building shortly before the
murder. The second witness said he saw Mr. Prade driving a car and speeding from the medical
building’s parking lot at a time when the murder would have just occurred. The gym where Mr.
Prade claimed he was exercising during the murder was only a six minute drive from the murder
scene, and Mr. Prade was unable to tender a solid alibi witness. Moreover, there was evidence
that he appeared to have just showered when he arrived at the murder scene some two hours after
the murder, despite his claim that he had spent the last two hours exercising.
{¶21} Dr. Prade’s murder itself “was premeditated and very personal,” id. at ¶ 125, as
her killer shot her six times at close range and delivered a severe bite mark during the struggle.
The evidence also “refuted any theory that a stranger had killed [her],” id., as her killer
approached her van in full view and entered in spite of the van’s auto-lock feature (meaning that
she either unlocked the door or her killer had keys to the van). Her killer was familiar with her
schedule and lay in wait for her arrival. Additionally, there was significant testimony, from
multiple sources, that the only person Dr. Prade feared and repeatedly had issues with was Mr.
Prade.
{¶22} New DNA results that Mr. Prade obtained in 2012, more than 14 years after Dr.
Prade’s murder, were the catalyst behind his request for a new trial. The new tests were
conducted using Y chromosome short tandem repeat testing (“Y-STR testing”) and, for the first
time, male DNA was discovered within an area of the bite mark section. Because Mr. Prade was
definitively excluded as the source of that male DNA, he argued that there was a strong
10
probability the new DNA evidence would result in a different verdict, if submitted to a jury. He
further argued that he was entitled to a new trial because, since 1998, bite mark identification
testimony had undergone significant criticism. For ease of analysis, we separately address the
new DNA evidence and the new bite mark identification evidence that Mr. Prade presented.
DNA Evidence
{¶23} Prior to Mr. Prade’s trial, two laboratories examined the bite mark section: the
FBI and the Serological Research Institute (“SERI”). As noted, the FBI originally tested three
areas of the bite mark section using PCR testing and only obtained a single DNA profile
consistent with Dr. Prade’s DNA. Because Y-STR testing did not exist at the time, the FBI was
unable to test the three cuttings solely for the presence of male DNA. Nevertheless, the FBI
swabbed the three cuttings it made to create three extracts and retained those extracts for future
use.
{¶24} When the FBI completed its testing, SERI received the bite mark section and
tested it for amylase, a component of saliva. SERI mapped the entire bite mark section for
amylase, meaning that its serologist (1) placed the entire bite mark section face down on a petri
dish prepared with a hardened, gel solution, (2) weighed down the bite mark section to ensure
proper contact, (3) left the bite mark section in place for several minutes, (4) lifted the bite mark
section away, and (5) stained the gel solution in the petri dish with iodine to identify positive
amylase patterns. The mapping test gave rise to three areas of “probable amylase activity,” so
SERI took cuttings from the bite mark section at each of those three areas. SERI then took two
actions: it microscopically examined the three cuttings and it performed an amylase diffusion test
in an attempt to extract and quantify any amylase in those three areas. The results of the
diffusion test were that “[n]o amylase activity was detected.” Meanwhile, the microscopic
11
examination of the three cuttings showed “few nucleated epithelial cells” (i.e., cells from the
surface of one’s body, including the mouth) on two of the cuttings and none on the third.
{¶25} Following the FBI and SERI’s respective tests, the bite mark section was
introduced as an exhibit at Mr. Prade’s trial and admitted into evidence. There was testimony
that, at trial, it was placed in an unsealed envelope before being admitted into evidence. It was
then stored in that same unsealed envelope for more than ten years.
{¶26} At the end of 2010, the DNA Diagnostics Center (“DDC”) took possession of the
bite mark section as well as the three extracts that the FBI originally had created and retained.
For reasons unknown, DDC was not able to obtain any DNA from the FBI’s three extracts (i.e.,
not even Dr. Prade’s). As to the bite mark section, DDC made a new cutting, extracted the DNA
contained therein, and performed Y-STR testing on it. As explained in much greater detail in
this Court’s prior opinion, DDC obtained a partial male profile from that extract (19.A.1) and
was able to exclude Mr. Prade as the source of that DNA. See Prade, 2014-Ohio-1035, at ¶ 74.
That test, however, only returned limited results. It was estimated that the 19.A.1 extract only
contained about three to five cells (a far cry from the ideal testing amount of 150 cells), and
DDC was only able to identify three out of possible sixteen genetic markers. Seeking to capture
more DNA and achieve a better result, DDC decided to perform another test.
{¶27} For its second test, DDC took three additional cuttings from the bite mark section,
extracted DNA from them, and combined that extracted DNA with the 19.A.1 extract to form a
new extract (19.A.2). When DDC tested the new extract (19.A.2), it uncovered about ten cells
and achieved results at seven genetic markers, but detected the partial profiles of at least two
males. See id. at ¶ 75-76. Mr. Prade was excluded as a source of any of the DNA found within
the 19.A.2 extract. Importantly, however, the predominant male profile that emerged when DDC
12
tested its first extract (19.A.1) was different than the predominant male profile that emerged
when it tested its second extract (19.A.2). See id. at ¶ 74-75, 115. Accordingly, questions arose
as to whether DDC had uncovered any DNA that actually belonged to Dr. Prade’s killer or
whether it had only uncovered low-level DNA that was present due to contamination and/or
transfer.
{¶28} Following DDC’s tests, the bite mark section was sent to the Bureau of Criminal
Investigation (“BCI”) for additional testing. BCI took one additional cutting from the bite mark
section and performed Y-STR testing on the cutting itself, a swab from the front side of the
cutting, and a swab from the back side of the cutting. BCI was unable to obtain any DNA profile
from the cutting itself, but the swabs of the cutting produced a partial male profile. Even so, the
swabs returned results on so few genetic markers that BCI did not have enough information to
draw any conclusions about the DNA it detected. See id. at ¶ 90.
{¶29} Apart from testing the bite mark section, BCI also conducted tests on other areas
of Dr. Prade’s lab coat to address the concern of widespread contamination. BCI took cuttings
from four other areas of the lab coat and performed Y-STR testing on each area. See id. at ¶ 91.
Its analyst failed to find any male DNA on any of the four tested areas.
{¶30} In reconsidering Mr. Prade’s motion for a new trial, the trial court reviewed and
heard anew a significant amount of testimony from experts who attempted to interpret all of the
foregoing results. It was Mr. Prade’s contention that at least some of the male DNA found
within the bite mark section belonged to Dr. Prade’s killer, so a new jury, hearing for the first
time that he was not the source of any of that DNA, would exonerate him. Upon review of the
evidence, however, the trial court rejected his contention. While the court agreed that Mr. Prade
had set forth newly discovered DNA evidence, it found that he had failed to satisfy his burden
13
under State v. Petro. See Petro, 148 Ohio St. 505 at syllabus. The court determined that the new
DNA results were cumulative of the old results to the extent that both excluded Mr. Prade.
Further, it determined that the new results were of questionable value because “more likely than
not the existence of the two partial male DNA profiles [that DDC discovered] occurred due to
incidental transfer and/or contamination rather than containing the true DNA from [the] killer.”
When considering the new results in light of the overwhelming, circumstantial evidence against
Mr. Prade at his trial, the court did not find there to be a strong probability that the new results
would be outcome determinative if a new trial was granted. See id. Consequently, it refused to
award Mr. Prade a new trial on the basis of the new DNA results.
{¶31} Mr. Prade argues that the court abused its discretion when it concluded that the
new DNA results did not warrant a new trial. He argues that the new results are not cumulative
in nature and create a strong probability that a new jury would reach a different result. As to the
latter point, he maintains that multiple experts agreed it was highly likely that Dr. Prade’s killer
left DNA on her lab coat when biting her. He asserts that it was unreasonable for the court, in
reviewing all the expert testimony, to conclude that all of the new DNA results were attributable
to contamination and/or transfer DNA. Because the new results create reasonable doubt as to his
guilt, Mr. Prade argues, the court ought to have granted his motion for a new trial.
{¶32} One of the experts Mr. Prade presented in support of his motion for a new trial
was Dr. Rick Straub, a Ph.D. in genetics and independent consultant on forensic DNA testing. It
was Dr. Straub’s opinion that Dr. Prade’s killer left his DNA on her lab coat and that the new
DNA found within the bite mark section was “highly likely to be from the killer.” He reasoned
that the mouth is such a rich source of DNA that one would expect to find the killer’s DNA
“‘before one would find the Y-STR profile of a male who engaged in incidental touching of the
14
lab coat before or after the attack.’” Prade, 2014-Ohio-1035, at ¶ 80. While SERI was unable to
detect any quantifiable amount of amylase during its diffusion test in 1998, Dr. Straub had no
doubt that its initial mapping test detected amylase. He explained that both the serologist’s notes
and a photograph of the completed mapping test supported that conclusion, as did the fact that
the microscopic examination of two of the cuttings had revealed epithelial cells. Even so, he
acknowledged that the serologist only saw a “few” epithelial cells and ultimately reported that
“[n]o amylase activity was detected.”
{¶33} Dr. Straub conceded that the second extract DDC tested (19.A.2) uncovered the
partial profiles of at least two males. He further conceded that there was not a significant
difference in the amount of cells attributable to each male. Dr. Straub believed that one of the
males was the killer, but he was unable to say which male it was. He also was unable to say
when or how at least one additional male’s DNA came to be deposited on the bite mark section,
other than to say that “[i]t would have had to have gotten on that lab coat in some way, shape or
form.”
{¶34} Assuming that the killer did deposit his DNA on the bite mark section, Dr. Straub
testified to a number of factors that could have affected how much of that DNA remained by
2010. He indicated that DNA naturally degrades over time and the fact that both the FBI and
SERI had already taken a total of six cuttings from the bite mark section “definitely decrease[d]
[the] chances of finding a significant amount of DNA * * *.” He also agreed that SERI’s
amylase mapping test was destructive in nature. He testified that “once you run that test, there’s
a really high probability that most of [the DNA] cells are removed from the material * * *.”
Given the limited results that DDC obtained, Dr. Straub agreed that any rich supply of DNA left
15
by the killer had been removed or degraded. He further agreed that if all of the new DNA results
were attributable to contamination Mr. Prade’s exclusion result “would be meaningless.”
{¶35} The second DNA expert that Mr. Prade presented in support of his motion for a
new trial was Dr. Julie Heinig, the Assistant Laboratory Director for DDC. In Dr. Heinig’s
opinion, it was “highly probable” that Dr. Prade’s killer left DNA on her lab coat and that DDC
uncovered it when testing the bite mark section. Much like Dr. Straub, she described the mouth
as a rich source of DNA. She relied on that fact and the fact that a serologist had seen epithelial
cells on cuttings taken from the bite mark section in 1998 to reach her conclusion that the male
DNA found within the bite mark section was “substantially more likely” to have come from the
killer than from another male who had incidentally come into contact with that area. Prade,
2014-Ohio-1035, at ¶ 76. Although DNA naturally degrades over time, Dr. Heinig was of the
opinion that at least some of the killer’s DNA still would have been present when DDC tested
the bite mark section. She indicated multiple times that she found it unlikely DDC had only
uncovered male DNA that was present due to contamination and/or transfer.
{¶36} Dr. Heinig acknowledged that the type of mapping test SERI performed on the
bite mark section in 1998 was no longer routinely employed because it was a “very destructive”
test. In fact, she stated that she “would expect [that test] to remove all of the cellular material”
on an item. With respect to contamination, she agreed that the bite mark section was placed in
an unsealed envelope at trial, was entered as an exhibit, and was stored in the unsealed envelope
until DDC’s technicians received it more than ten years later. She also agreed that the bite mark
section had been tested numerous times over the years, thereby increasing the risk of possible
contamination. She conceded that contamination and/or transfer DNA is one explanation for the
appearance of below-threshold results at genetic markers within a tested sample.
16
{¶37} As to the test DDC performed on the extract labeled 19.A.2, Dr. Heinig agreed
that the extract contained the DNA of at least two males. She admitted that she was unable to
label either male’s profile as the major or minor one due to the limited results her lab obtained.
Indeed, she could not even quantify the extremely low number of cells that DDC had obtained
from its tests. See id. at ¶ 78. Assuming that one of the profiles belonged to the killer, she was
unable to say which one it was or when any of the DNA associated with those profiles had been
deposited. She “conceded that, in order to have two different male profiles, either contamination
or DNA from transfer DNA had to have occurred.” Id. Further, she agreed that Mr. Prade’s
exclusion result was meaningless if all of the new DNA results were attributable to
contamination.
{¶38} One of the experts the State presented in opposition to Mr. Prade’s motion for a
new trial was Dr. Elizabeth Benzinger, the Director of Research, Training, and Development at
BCI. Dr. Benzinger opined that the male DNA found within the bite mark section was “‘most
easily explained by incidental transfer (patients, police, lab workers, court officials).’” Id. at ¶
85. She reached that conclusion based on the extremely limited results that DDC and BCI
obtained and the fact that, within those low-level results, DDC uncovered the partial profiles of
multiple males. She testified that there is currently no mechanism for dating DNA, so it was
impossible to determine when the DNA that DDC found was deposited. Though SERI reported
probable amylase activity when conducting its mapping test in 1998, Dr. Benzinger opined that
the lack of results on its subsequent, diffusion test cast doubts on the serologist’s interpretation of
the first test. Even if Dr. Prade’s killer did leave behind some quantity of amylase and DNA on
the bite mark section, however, Dr. Benzinger testified that it may not have been a high quantity
17
to begin with and other factors such as degradation and destruction due to previous testing may
have affected that quantity.
{¶39} The second witness to testify for the State was Dr. Lewis Maddox, the DNA
technical leader for BCI. Much like Dr. Heinig, Dr. Maddox opined that the male DNA found
within the bite mark section was best explained by contamination and/or transfer. He noted that,
even back in 1998, SERI only observed “a few nucleated epithelial cells on two of the sampled
areas and none on the third area.” He also noted that SERI was unable to confirm the presence
of amylase within the bite mark section through quantification. He could not say if that was
because there was so little there or because the mapping test had resulted in a false positive.
Either way, however, Dr. Maddox would have expected to see quantifiable results “had there
been a ‘slobbering killer,’ as suggested by one of the defense witnesses at trial.” Prade, 2014-
Ohio-1035, at ¶ 89.
{¶40} As to the results of DDC’s tests, Dr. Maddox confirmed that they were all “low
level” results and “definitely [from] more than one contributor * * *.” He explained that no
strong profile emerged such that there was “not a great difference between [the] two profiles”
detected within the 19.A.2 extraction. Had the killer left a significant amount of DNA on the
bite mark section, Dr. Maddox indicated that he would have expected “‘a male profile of strong
significant signal’” to have emerged. Id. He was unable to say with any degree of confidence
that the male DNA found within the bite mark section came from the killer. He noted that BCI
had not detected any male DNA on four other areas of Dr. Prade’s lab coat (i.e., areas outside the
bite mark section). According to Dr. Maddox, that fact caused him concern as an analyst
because it suggested that the reason the bite mark section gave rise to inconsistent, low-level
results while the lab coat did not was that the bite mark section had been “the primary focus of
18
attention” over the years and handled by a significant number of individuals. He indicated that,
overall, the results DDC obtained did not appear to be very useful.
{¶41} Having reviewed the record, this Court cannot conclude that the trial court abused
its discretion when it rejected Mr. Prade’s request for a new trial on the basis of the new DNA
results. See Tolliver, 2017-Ohio-4214, at ¶ 18. That is because, even if the new results are not
cumulative of the old ones, Mr. Prade has not shown that there is a strong probability the new
results would lead to a different outcome if introduced at a new trial. See State v. Holmes, 9th
Dist. Lorain No. 05CA008711, 2006-Ohio-1310, ¶ 15 (new trial petitioner “has the burden of
demonstrating that the newly discovered evidence created a strong probability of a different
result if a new trial was granted”). The “‘mere possibility’” that a new trial might lead to a
different outcome is an insufficient basis upon which to grant a motion for a new trial. State v.
Murley, 2d Dist. Champaign No. 08-CA-26, 2009-Ohio-6393, ¶ 26, quoting 90 Ohio
Jurisprudence 3d, Trial, Section 665 (2009). See also State v. Pannell, 9th Dist. Wayne No.
96CA0009, 1996 Ohio App. LEXIS 3967, *13-14 (Sept. 11, 1996).
{¶42} Although both of Mr. Prade’s experts were of the opinion that it was “highly
likely” or “highly probable” that DDC discovered the killer’s DNA within the bite mark section,
both made several critical concessions. For example, both conceded that DDC detected the
partial profiles of at least two males within the bite mark section and that neither one emerged as
the significantly stronger profile. See Prade, 2014-Ohio-1035, at ¶ 115. There was testimony
that, for that to have happened, some degree of contamination had to have occurred. Further,
while Mr. Prade’s experts rejected the notion that all of DDC’s results were attributable to
contamination, they both conceded that, within a year of the murder, SERI was unable to detect
any quantifiable amount of amylase. See id. at ¶ 117 (noting that SERI’s failure to detect any
19
quantifiable amount of amylase “undercut[] the assumption * * * that there had to be DNA from
the biter on the lab coat due to the large amount of DNA in saliva.”). They also both agreed that
SERI subjected the entire bite mark section to a very destructive mapping test. Indeed, Dr.
Heinig went so far as to say that she “would expect [that test] to remove all of the cellular
material” on an item. (Emphasis added.) That portion of her testimony was inconsistent with
her foundational logic that the killer’s DNA must have endured due to the wealth of DNA
contained in one’s mouth. Moreover, she conceded that contamination is one explanation for the
type of low-level results that DDC’s and BCI’s tests produced. In reviewing all of the evidence,
the trial court reasonably could have questioned the ultimate opinions of Mr. Prade’s experts.
{¶43} Neither Mr. Prade’s experts, nor the State’s experts could say when or how the
male DNA that DDC uncovered was deposited on the bite mark section. The trial court heard
testimony that DNA naturally degrades over time and that, by 2010, the bite mark section had
already been highly sampled and subjected to several rounds of testing. Not even the three
original extracts that the FBI sealed and retained produced any results when DDC tested them,
despite widespread agreement that, at the very least, Dr. Prade’s DNA should have been present.
As such, there was ample reason for the trial court to conclude that both the passage of time and
the amount of exposure the bite mark section had endured over the years were factors that bore
upon the meaningfulness of the new DNA results. Given that fact and the fact that the State’s
experts both attributed the new results to contamination, the court reasonably could have
concluded that the new results were of questionable value. It also reasonably could have
concluded that those results would not be outcome determinative if introduced at a new trial. See
Petro, 148 Ohio St. 505 at syllabus.
20
{¶44} This Court has recognized that “a new trial is an extraordinary measure and
should be granted only when the evidence presented weighs heavily in favor of the moving
party.” State v. Gilcreast, 9th Dist. Summit No. 21533, 2003-Ohio-7177, ¶ 54. As detailed in
our prior opinion, the State set forth an overwhelming amount of evidence against Mr. Prade at
his trial. See Prade at ¶ 20-70, 121.
The picture painted by that evidence was one of an abusive, domineering husband
who became accustomed to a certain standard of living and who spiraled out of
control after his successful wife finally divorced him, forced him out of the house,
found happiness with another man, and threatened his dwindling finances. The
evidence, while all circumstantial in nature, came from numerous, independent
sources and provided answers for both the means and the motive for the murder.
Id. at ¶ 121. Although Mr. Prade’s DNA profile did not match either of the partial profiles that
DDC discovered, the partial profiles were of an entirely questionable value, given the significant
and valid concerns that they all stemmed from contamination. Compare State v. Jones, 9th
Summit No. 26568, 2013-Ohio-2986, ¶ 15-21 (retrial warranted where new DNA testing
uncovered clear major and minor male DNA profiles and none of the tests identified the
defendant as a contributor); State v. Georgekopoulos, 9th Dist. Summit No. 22491, 2005-Ohio-
5106 (retrial warranted where new photographic evidence showed that the State’s theory of the
case was an impossibility). As noted, “‘[t]he mere possibility of a different outcome is
insufficient’” to warrant the granting of a motion for new trial. Murley, 2009-Ohio-6393, at ¶ 26,
quoting 90 Ohio Jurisprudence 3d, Trial, Section 665 (2009). Bearing in mind the deferential
standard of review that applies in this matter, we must conclude that the trial court acted within
its sound discretion when it refused to award Mr. Prade the extraordinary measure of a new trial.
See Tolliver, 2017-Ohio-4214, at ¶ 18; Gilcreast at ¶ 54. Because Mr. Prade did not show that
the new DNA results “disclose[d] a strong probability that [they] [would] change the result if a
new trial [was] granted,’” the trial court’s decision to deny his motion for a new trial on that
21
basis was neither unreasonable, nor arbitrary, nor unconscionable. Petro at syllabus. This Court
rejects his argument to the contrary.
Bite Mark Identification
{¶45} As noted, three dental experts testified at Mr. Prade’s trial and offered a range of
testimony related to the bite mark impression left on Dr. Prade’s lab coat and the bruising pattern
left on her skin. In his original motion for a new trial, Mr. Prade included a request for relief
based on evidence that, since 1998, the science behind bite mark identification had sustained
significant criticism. He presented the testimony of Dr. Mary Bush, an expert in forensic
odontology research, who testified in great detail that neither the uniqueness of human dentition,
nor its ability to transfer onto human skin in a unique way had been scientifically proven. See
Prade, 2014-Ohio-1035, at ¶ 92-95. Additionally, he pointed the court to a number of scholarly
works, including a 2009 report from the National Academy of Sciences, questioning the
reliability of bite mark identification testimony.
{¶46} In response to Mr. Prade’s motion, the State offered the testimony of Dr. Franklin
Wright, Jr., an expert in forensic odontology. Id. at ¶ 96-101. Dr. Wright criticized several
aspects of Dr. Bush’s research methodology and the conclusions she drew therefrom. He opined
that “bite mark evidence is generally accepted within the scientific community, but its value in
any specific case depends upon the subjective interpretation of the analyst examining it.” Id. at ¶
96. He testified that bite mark evidence was best used “as part of * * * the total evidence[] that
exists in [a] case” and cautioned against its use as the sole piece of evidence in a case. As to the
bite mark testimony that the State presented at Mr. Prade’s trial, Dr. Wright acknowledged that it
was problematic in several respects. Id. at ¶ 101. In particular, he took issue with (1) Dr.
Marshall’s decision to testify in absolute terms that Mr. Prade was the biter, and (2) Dr. Lowell’s
22
ultimate conclusion that Mr. Prade’s dentition was consistent with the bite mark. He explained
that he was critical of Dr. Lowell’s conclusion because Dr. Lowell admitted that he had struggled
to identify individual characteristics when studying pictures of the bite mark.
{¶47} Following this Court’s remand in response to the trial court’s actual innocence
ruling, Mr. Prade supplemented his motion for a new trial with additional evidence. First, he
supplied the court with a DVD recording of a television broadcast interview, wherein three of the
jurors from his trial discussed how the State’s bite mark evidence had influenced their verdict.
Second, he supplied the court with the affidavit of another expert, Dr. Iain Alastair Pretty. Dr.
Pretty attested to recent, significant changes to the guidelines for forensic bite mark analysis, as
established by the American Board of Forensic Odontology (“the ABFO”). He stated that, under
the new guidelines, the ABFO would disavow any expert opinion that purported to identify a
specific individual as the one who actually caused a bite mark in an open population case (i.e., a
case where “the universe of potential suspects is unknown”). He reviewed several photographs
of the bite mark injury to Dr. Prade’s arm and noted that he was unable to discern any individual
tooth characteristics. He opined that, if the case were retried today, “there could be no opinion
presented, consistent with ABFO guidelines, that purport[ed] to link the victim’s injury to Mr.
Prade’s (or anyone else’s) dentition.”
{¶48} The trial court, on remand, declined to receive any oral testimony on the issue of
bite mark evidence when it conducted additional hearings on the new DNA results. Instead, it
allowed the parties to brief the issue and reviewed their written materials in conjunction with the
testimony produced at the original hearings on Mr. Prade’s motion for a new trial. The trial
court ultimately determined that Mr. Prade’s newly submitted evidence did not warrant a new
trial. The court found that “[t]he reliability of bite mark evidence [had] been a matter of
23
contention for decades – long before the 1998 trial[–]” and that Mr. Prade’s evidence merely
reiterated the “same basic criticisms” that had existed at the time of trial. It found that Mr.
Prade’s evidence was largely cumulative of the specific expert testimony offered at the trial, as
the jury had heard a wide range of testimony on the reliability of bite mark identification. See
Petro, 148 Ohio St. 505 at syllabus. Further, it found that the evidence merely impeached certain
aspects of that testimony, see id., and did not eclipse the staggering amount of circumstantial
evidence that had implicated Mr. Prade. The court concluded that Mr. Prade was not entitled to a
new trial because he had failed to set forth newly discovered evidence or show that there was a
strong probability his newly submitted evidence would lead to a different result if a new trial was
granted. See id.
{¶49} Mr. Prade’s argument on appeal is two-fold. First, he argues that the trial court
abused its discretion when it refused to consider the television broadcast interview that he
attached to his supplemental motion for a new trial. He argues that the interview evidenced the
fact that at least three of the jurors who convicted him did so solely on the basis of the State’s
bite mark evidence. According to Mr. Prade, the interview was admissible in support of his
motion for a new trial because he introduced it to show how the new bite mark evidence would
change the result in this matter, not to “invalidate or challenge the original verdict in the sense
Evid.R. 606(B) contemplates.”
{¶50} Second, Mr. Prade argues that the trial court abused its discretion by denying his
motion for a new trial on its merits. He argues that the evidence he submitted about the
reliability of bite mark identification casts serious doubts upon the expert testimony that the State
introduced at his trial. He asserts that it was unreasonable for the court to portray the newly
submitted evidence as cumulative of the old evidence because the newly submitted evidence
24
demonstrated that, if the matter were retried today, the State would be unable to offer any expert
testimony linking him to the bite mark. Because unreliable bite mark testimony resulted in his
conviction, he argues, there is a strong probability that the newly submitted evidence would
change the result in this matter if a new trial was granted.
{¶51} Upon review, this Court cannot address the merits of Mr. Prade’s first argument
that the trial court abused its discretion by excluding the television broadcast interview. That is
because he has not provided us with an adequate record for our review. State v. Farnsworth, 9th
Dist. Medina No. 15CA0038-M, 2016-Ohio-7919, ¶ 16 (“It is the appellant’s responsibility to
ensure that the record on appeal contains all matters necessary to allow this Court to resolve the
issues on appeal.”). According to Mr. Prade, the court conducted a hearing on June 12, 2015,
and, at that hearing, entered its ruling on the admissibility of the interview. The record, however,
does not contain a transcript from that hearing. Nor does it contain any oral or written ruling
from the trial court, addressing the admissibility of the interview. As such, we cannot say
whether the court found the interview inadmissible, or, if it did, whether it committed reversible
error in doing so. See State v. Ecker, 9th Dist. Summit No. 28431, 2018-Ohio-940, ¶ 20 (absent
an issue of law, an appellate court generally applies the abuse of discretion standard when
reviewing evidentiary determinations). Because Mr. Prade has not supplied this Court with an
adequate record, we cannot review his argument on that point. See State v. Milano, 9th Dist.
Summit No. 28674, 2018-Ohio-1367, ¶ 15, fn. 1, quoting State v. Knox, 9th Dist. Lorain No.
16CA010985, 2018-Ohio-43, ¶ 12 (an appellant “may not hope to ‘predicate reversal upon the
basis of a silent record’”). Accordingly, we must presume regularity in the proceedings below
insofar as Mr. Prade’s argument concerns the television broadcast interview. See State v.
Burden, 9th Dist. Summit No. 28367, 2017-Ohio-4420, ¶ 7.
25
{¶52} Having reviewed the record, we must conclude that the trial court acted within its
discretion when it refused to award Mr. Prade a new trial on the basis of the bite mark evidence
he presented. See Tolliver, 2017-Ohio-4214, at ¶ 18. Crim.R. 33(A)(6) only permits a defendant
to seek a new trial upon the discovery of “new evidence” that he or she “could not with
reasonable diligence have discovered and produced at the trial.” Accord Petro, 148 Ohio St. 505
at syllabus. If a defendant could have discovered and produced evidence for trial, then that
evidence is not the proper subject of a motion filed under Crim.R. 33(A)(6). State v. Patton, 9th
Dist. Summit No. 17432, 1996 Ohio App. LEXIS 482, *9 (Feb. 14, 1996). Likewise, a
defendant cannot prevail upon a Crim.R. 33(A)(6) motion if the motion rests upon evidence that
is merely cumulative of former evidence or merely impeaches/contradicts it. Petro at syllabus.
Accord Jalowiec, 2015-Ohio-5042, at ¶ 40; State v. Diaz, 9th Dist. Lorain No. 02CA008069,
2003-Ohio-1132, ¶ 32. Because Mr. Prade failed to set forth “new evidence” that was neither
cumulative of the trial testimony, nor served merely to impeach or contradict it, he was not
entitled to relief under Crim.R. 33(A)(6).
{¶53} In essence, Mr. Prade set forth evidence that, since 1998, additional research has
resulted in amended guidelines, recommendations, and opinions about the reliability of bite mark
identification evidence and the conclusions that an expert might reliably draw in any given case.
As noted, however, the original jury in this matter heard a wide range of testimony on bite mark
identification. See Prade, 2014-Ohio-1035, at ¶ 63-70, 129. That testimony included significant
criticisms about the reliability of bite mark identification, as elicited by defense counsel on cross-
examination. Indeed, even on direct examination, the State’s first expert (Dr. Levine) drew
attention to the limitations of such evidence, stressed that it should not be used as the only
evidence in any case, and indicated that, at best, he could only say that Mr. Prade could have
26
made the bite mark in this case. Given the nature of the testimony introduced at trial, it was not
unreasonable for the trial court to reject Mr. Prade’s motion on the basis that his newly submitted
evidence was merely cumulative of the trial testimony or merely served to impeach or contradict
portions of it (e.g., Dr. Marshall’s opinion that Mr. Prade definitively caused the bite mark). See
Petro, 148 Ohio St. 505 at syllabus. More importantly, however, it was not unreasonable for the
court to reject Mr. Prade’s motion because it was unsupported by any newly discovered
evidence.
{¶54} As noted, Crim.R. 33(A)(6) only provides an avenue for relief when a defendant
uncovers “new evidence.” The record supports the trial court’s determination that Mr. Prade’s
newly submitted evidence merely spoke to the “same basic criticisms” that had plagued bite
mark identification evidence “for decades.” While the specific experts or studies Mr. Prade
identified in his motion for new trial might not have been available to him in 1998, there was
nothing to prevent him from discovering and producing for trial other similar opinions and
studies about the unreliability of bite mark identification evidence.4 He chose not do to so.
Instead, he relied upon vigorous cross-examination and a defense expert who opined that he was
incapable of inflicting the bite mark in this case. Mr. Prade cannot now attempt to cast
additional criticisms about the reliability of bite mark evidence as “new evidence.” See Crim.R.
33(A)(6); Petro, 148 Ohio St. 505 at syllabus. Moreover, even assuming that he did, in fact,
introduce some “new evidence” in support of his motion, the trial court reasonably could have
determined that it was unlikely to change the outcome here. See Jalowiec, 2015-Ohio-5042, at ¶
38 (“Evidence that impeaches or contradicts the evidence at trial is not excluded from
4
Notably, in opposing Mr. Prade’s request for a new trial, the State offered a wealth of citations
to articles and other literature that predated Mr. Prade’s trial and criticized the reliability of bite
mark identification.
27
consideration per se, but the character of that evidence is relevant to whether a different result is
a strong probability [under Petro].”).
{¶55} The State set forth an overwhelming amount of evidence against Mr. Prade at
trial. See Prade, 2014-Ohio-1035, at ¶ 20-70, 121. It is not clear that any one piece of evidence,
including the bite mark testimony, led the jury to convict him. His argument that, if this matter
were retried today, the State would be unable to offer any admissible, inculpatory expert
testimony linking him to the bite mark in this case is wholly speculative. That determination
would be left to the sound discretion of the trial court in its gatekeeping function under Daubert
v. Merrill-Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and this Court is not at liberty to
predict which experts the State would actually tender or what testimony the trial court would or
would not allow in the event of a retrial. See, e.g., State v. Jackson, 9th Dist. Summit Nos.
27132, 27133, 27158 & 27200, 2015-Ohio-5246, ¶ 51-54; State v. Reives-Bey, 9th Dist. Summit
No. 25138, 2011-Ohio-1778, ¶ 18. Even if it is possible that the new bite mark evidence would
lead to a different result upon retrial, “‘[t]he mere possibility of a different outcome is
insufficient’” to warrant the granting of a motion for new trial. Murley, 2009-Ohio-6393, at ¶ 26,
quoting 90 Ohio Jurisprudence 3d, Trial, Section 665 (2009). Having carefully reviewed the
record and continuing to bear in mind the deferential standard of review that applies in this
matter, we must conclude that the trial court acted within its sound discretion when it refused to
award Mr. Prade the extraordinary measure of a new trial. See Tolliver, 2017-Ohio-4214, at ¶
18; Gilcreast at ¶ 54. Accordingly, his sole assignment of error is overruled.
III.
{¶56} Mr. Prade’s sole assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
28
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
SCHAFER, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
DAVID BOOTH ALDEN, LISA B. GATES, and EMMETT E. ROBINSON, Attorneys at Law,
for Appellant.
MARK B. GODSEY and BRIAN C. HOWE, Attorneys at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.