State v. Livingston ( 2022 )

[Cite as State v. Livingston, 2022-Ohio-3312.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210378
TRIAL NO. B-0800258B
Plaintiff-Appellee, :
vs. : O P I N I O N.
MARTY LEVINGSTON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: September 21, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Ohio Innocence Project and Donald Caster, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant Marty Levingston appeals the Hamilton County
Common Pleas Court’s judgment denying his application for postconviction DNA
testing. Because the trial court did not follow the appropriate statutory procedure
before rejecting Levingston’s application, we reverse the trial court’s judgment and
remand for further proceedings.
{¶2} Following a jury trial, Levingston was convicted of murder, felonious
assault, several specifications, and tampering with evidence. He is currently serving a
sentence of 23 years to life in prison. Levingston unsuccessfully challenged his
convictions on direct appeal, State v. Levingston, 1st Dist. Hamilton No. C-090235,
2011-Ohio-1665, appeal not accepted, 131 Ohio St.3d 1477, 2011-Ohio-4751, 953
N.E.2d 843, and in a postconviction petition, State v. Levingston, 1st Dist. Hamilton
No. C-140194 (Dec. 5, 2014), appeal not accepted, 142 Ohio St.3d 1466, 2015-Ohio-
1896, 30 N.E.3d 974.
{¶3} In 2021, due to developments in Mini-STR or “touch DNA” testing that
greatly increased the type of evidence that can now be tested for DNA profiles,
Levingston applied for postconviction DNA testing. Noting that the identity of the
perpetrator was an issue at trial, Levingston requested touch DNA testing on the
following items collected at the crime scene, explaining that these items had not been
tested for DNA or fingerprints during the investigation: (1) 13 cartridges/shell casings;
(2) two bullets; (3) two projectiles from two different .45-caliber weapons; (4) a .40-
caliber gun magazine with seven cartridges in it; (5) two projectiles lodged in cars in
the Hawaiian Terrace parking lot; and (6) two projectiles recovered from the victim’s
body.
{¶4} The trial court denied Levingston’s application without a hearing. In its
entry, the common pleas court found that the evidence Levingston wanted tested had
been collected by police during their investigation, that Levingston, having been
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OHIO FIRST DISTRICT COURT OF APPEALS
convicted of murder, was eligible to apply for postconviction DNA testing, and that the
state had not included, in its response to Levingston’s application, “an inventory of
biological evidence or biological material.” The trial court then found that there was
nothing in the record to demonstrate that a sample of biological material existed to be
tested and denied Levingston’s application.
{¶5} Levingston now appeals, arguing in a single assignment of error, that
the trial court erred in rejecting his application. We review a trial court’s denial of an
application for postconviction DNA testing for an abuse of discretion. State v. Smith,
1st Dist. Hamilton No. C-190558, 2021-Ohio-1389, ¶ 4, citing State v. Conner, 2020-
Ohio-4310, 158 N.E.3d 162, ¶ 12.
{¶6} A common pleas court determines whether to grant an R.C. 2953.73
application for postconviction DNA testing under the criteria and procedures set forth
in R.C. 2953.74 through 2953.81. R.C. 2953.73(D). Applicable to this case are R.C.
2953.74(B) and (C) and 2953.75.
{¶7} Where DNA testing was not performed at trial, R.C. 2953.74(B)
provides that a court may only accept an eligible inmate’s application for DNA testing
if the “inmate shows that DNA exclusion * * * would have been outcome determinative
at that trial stage in that case.” And R.C. 2953.74(C) provides that a court may only
accept an application for DNA testing if all the following apply:
(1) The court determines pursuant to section 2953.75 of the Revised
Code that biological material was collected from the crime scene or the
victim of the offense * * * and that the parent sample of that biological
material * * * still exists at that point in time.
(2) The testing authority determines all of the following pursuant to
section 2953.76 of the Revised Code regarding the parent sample of the
biological material described in division (C)(1) of this section:
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OHIO FIRST DISTRICT COURT OF APPEALS
(a) The parent sample of the biological material so collected
contains scientifically sufficient material to extract a test sample.
(b) The parent sample of the biological material so collected is
not so minute or fragile as to risk destruction of the parent
sample by the extraction described in division (C)(2)(a) of this
section; provided that the court may determine in its discretion,
on a case-by-case basis, that, even if the parent sample of the
biological material so collected is so minute or fragile as to risk
destruction of the parent sample by the extraction, the
application should not be rejected solely on the basis of that risk.
(c) The parent sample of the biological material so collected has
not degraded or been contaminated to the extent that it has
become scientifically unsuitable for testing, and the parent
sample otherwise has been preserved, and remains, in a
condition that is scientifically suitable for testing.
(3) The court determines that, 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, the identity of the
person who committed the offense was an issue.
(4) The court determines that one or more of the defense theories
asserted by the offender at the trial stage in the case described in
division (C)(3) of this section or in a retrial of that case in a court of this
state was of such a nature that, if DNA testing is conducted and an
exclusion result is obtained, the exclusion result will be outcome
determinative.
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OHIO FIRST DISTRICT COURT OF APPEALS
(5) The court determines that, if DNA testing is conducted and an
exclusion result is obtained, the results of the testing will be outcome
determinative regarding that offender.
(6) The court determines pursuant to section 2953.76 of the Revised
Code from the chain of custody of the parent sample of the biological
material to be tested and of any test sample extracted from the parent
sample, and from the totality of circumstances involved, that the parent
sample and the extracted test sample are the same sample as collected
and that there is no reason to believe that they have been out of state
custody or have been tampered with or contaminated since they were
collected.
(Emphasis added.) R.C. 2953.74(C)(1)-(6).
{¶8} R.C. 2953.75(A) provides in relevant part: “If an eligible offender submits
an application for DNA testing under section 2953.73 of the Revised Code, the court shall
require the prosecuting attorney to use reasonable diligence to determine whether
biological material was collected from the crime scene or victim of the offense * * * and
whether the parent sample of that biological material still exists at that point in time.”
R.C. 2953.75(B) then requires the prosecuting attorney “to prepare a report that contains
the prosecuting attorney’s determinations under [R.C. 2953.75(A)] and [to] file a copy of
the report with the court and provide a copy to the eligible offender and the attorney
general.”
{¶9} Here, “biological material” is defined as “any product of a human body
containing DNA” and “parent sample” is defined as “the biological material first obtained
from a crime scene or a victim of an offense * * * and from which a sample will be
presently taken to do a DNA comparison to the DNA of the subject offender under
sections 2953.71 to 2953.81 of the Revised Code.” R.C. 2953.71(B) and (M).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} A trial court has discretion “whether it will first determine whether the
eligible inmate has demonstrated that the DNA testing would be outcome-determinative
[under R.C. 2953.74(B)] or whether, [under R.C. 2953.74(C)(1)] it should order the
prosecuting attorney to prepare and file a DNA-evidence report pursuant to R.C.
2953.75.” State v. Buehler, 113 Ohio St.3d 114, 2007-Ohio-1246, 863 N.E.2d 124, ¶ 36.
{¶11} The court rejected Levingston’s application after finding that R.C.
2953.74(C)(1) had not been satisfied. That section requires not only a finding that
biological material was collected from the crime scene or victim of the offense, but that
that sample still exists. Additionally, the court found that because Levingston did not
satisfy R.C. 2953.74(C)(1), he also did not satisfy R.C. 2953.74(C)(2) or (6), which
required a determination of whether the existing parent sample was suitable for testing
or whether the sample had been out of state custody or tampered with since collected.
{¶12} Here, the common pleas court did not determine whether postconviction
DNA testing would be outcome determinative. Instead, it exercised its discretion in
determining first whether R.C. 2953.74(C)(1) had been satisfied. But the court failed to
make that determination pursuant to R.C. 2953.75, which requires the court to order the
state to use reasonable diligence to investigate whether biological material had been
collected and whether a sample of that material still existed and then present those
findings in a DNA-evidence report to the court. The court never ordered the state to
investigate and prepare a DNA-evidence report. Without that information, the court
could not reasonably determine whether a parent sample still existed to be tested.
Because the court did not follow the proper statutory procedure in considering
Levingston’s application, its finding that the record does not demonstrate that a sample
of biological material exists is arbitrary. Additionally, the trial court’s findings that
Levingston did not satisfy the criteria set forth in R.C. 2953.74(C)(2) and (6), which
require, respectively, that a testing authority determine if the parent sample is sufficient
for testing and whether that sample has stayed within the state’s chain of custody, were
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OHIO FIRST DISTRICT COURT OF APPEALS
arbitrary as determination of those criteria is based on whether R.C. 2953.74(C)(1) has
been satisfied.
{¶13} We reject the state’s argument that it does not have to comply with R.C.
2953.75 because Levingston has not pointed to any evidence that was collected during
the investigation that may contain biological material. As noted earlier, biological
material means “any product of a human body containing DNA.” R.C. 2953.71(B). Such
products of the human body include blood, semen, hair, saliva, and skin tissue. See R.C.
2933.82(A)(1)(a)(ii) (defining “biological evidence” as any item that contains these types
of products). It is not unreasonable to conclude that skin tissue or other products of the
human body containing DNA may be found on inanimate objects such as bullets or shell
casings, items that Levingston requested be tested for DNA. See State v. Emerick, 2d
Dist. Montgomery No. 24215, 2011-Ohio-5543, ¶ 57 (“It is undisputable that biological
materials are commonly located on other items.”).
{¶14} In considering whether biological material had been collected and
whether a sample of that material still existed under R.C. 2953.74(C)(1), the common
pleas court failed to make that determination in compliance with R.C. 2953.75. Because
the court failed to follow statutory procedure when it did not require the prosecuting
attorney to file a DNA-evidence report prior to determining if R.C. 2953.74(C)(1) had
been satisfied, we hold that it abused its discretion in rejecting Levingston’s application
for postconviction DNA testing and sustain the single assignment of error. On remand,
if the court chooses to exercise its discretion to first determine whether R.C.
2953.74(C)(1) has been satisfied, we instruct the court to follow the appropriate statutory
procedure. Accordingly, we reverse the common pleas court’s judgment and remand this
matter for further proceedings consistent with this opinion and the law.
Judgment reversed and cause remanded.
MYERS, P.J., and BERGERON, J., concur.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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