[Cite as State v. Thornton,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2012-09-063

: OPINION - vs - 6/10/2013 :

KEVIN THORNTON, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2007 CR 00792

D. Vincent Faris, Clermont County Prosecuting Attorney, Judith Brant, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Donald R. Caster, University of Cincinnati College of Law, P.O. Box 210040, Cincinnati, Ohio 45221-0040, for defendant-appellant

HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, Kevin M. Thornton, appeals a decision of the Clermont

County Common Pleas Court denying his motion for leave to file a delayed motion for new

trial and his petition for postconviction relief. For the reasons outlined below, we affirm the

trial court's judgment.

{¶ 2} This court has previously affirmed appellant's convictions for aggravated Clermont CA2012-09-063

robbery and kidnapping with firearm specifications. State v. Thornton, 12th Dist. No.

CA2008-10-92,

. From that decision, the following facts were established:

On September 11, 2007, at approximately 1:15 p.m., a man wearing sunglasses[, a pair of thin cotton or wool gloves,] and a hat entered the Cash Express on Main Street in the city of Milford, Clermont County, Ohio. The man walked up to the counter and asked store employee Leslie Fahey what he needed to do to obtain a loan. When Fahey walked around the counter to give him a brochure, the man pointed a handgun at her stomach and demanded money. When Fahey asked if he was serious, the man racked the slide on his handgun, thereby chambering a round in the weapon, and repeated his demand. Fahey handed over the contents of her cash drawer. The man then ordered Fahey to lie down on the floor, bound her hands and feet with zip ties, and told her not to scream or he would come back. After hearing nothing but silence, Fahey freed her hands, cut the zip tie on her feet and sent out an alarm using her computer.

Even though the surveillance photographs of the robbery taken by the store's security camera did not show the robber's face, [three] Milford police officers believed that, given the perpetrator's height and posture, the robber was Thornton. When the police showed Fahey a photo lineup that did not include Thornton, but contained the photo of a known shoplifter, she did not identify any of the men in the lineup as being the robber. However, when the police showed Fahey a second photo lineup that contained Thornton's photograph, she identified Thornton as the man who robbed her.

Id. at ¶ 22-23.

{¶ 3} Thus, on the evening of September 11, 2007, police executed search warrants

upon Thornton's apartment, the apartment of his girlfriend, and his mother's motor vehicle.

When Sergeant Donald Mills of the Milford Police Department read Thornton the search

warrant, Sergeant Mills did not mention that the warrant related to a robbery. However,

Thornton explained to his mother, "They think I robbed the Cash Express. I think it's funny."

Furthermore, Thornton initially stated that he was home with his mother "all day" but, when it

was revealed that his mother had not been home all day, Thornton stated that he had slept

all day. Thornton further explained that he knew about the Cash Express robbery because a

-2- Clermont CA2012-09-063

neighbor told him he looked like the robber.

{¶ 4} From Thornton's apartment the police seized a black "Cincinnati Reds" t-shirt

that was found lying on a table and appeared to have been recently worn. The police also

seized a pairs of sunglasses found lying underneath the "Cincinnati Reds" t-shirt. When later

shown to Fahey, she identified the t-shirt and the pair of sunglasses as the items worn by the

perpetrator during the robbery. However, the police did not find zip ties, a gun, money, or a

black baseball cap in any of the locations searched.

{¶ 5} Thornton was placed under arrest the same night and later indicted on one

count of aggravated robbery in violation of R.C. 2911.01(A)(1), a felony of the first degree,

and one count of kidnapping in violation of R.C. 2905.01(A)(2), a felony of the first or second

degree, depending on whether the offender released the victim in a safe place unharmed.

Both counts were accompanied by firearm specifications pursuant to R.C. 2941.145. The

pivotal issue at trial was Thornton's identity as the perpetrator. While Thornton's first trial

ended in a hung jury in November 2007, Thornton was again tried by a jury on April 7-10,

2008 and was convicted as charged. Thornton was eventually sentenced to serve 12 years

in prison on September 11, 2009.

{¶ 6} Approximately two years later, Thornton contacted the Ohio Innocence Project

which requested that DNA testing be performed on the zip ties used to bind Fahey's feet and

hands at the Cash Express. With the agreement of the Clermont County Prosecutor's Office,

on November 9, 2011, the trial court entered an order to allow the collection of evidence for

the purpose of DNA testing. DNA Diagnostics Center, a state-certified laboratory, performed

Y-Chromosome Short Tandem Repeat (Y-STR) DNA testing on the zip ties.

{¶ 7} "DNA testing has become a forensic tool by which technology can increase the

public's confidence in the judicial system." State v. Elliott, 1st Dist. No. C-050606, 2006-

Ohio-4508, ¶ 6. "'The Y Chromosome is the DNA in the nucleus of a cell that is present only -3- Clermont CA2012-09-063

in males.'" Id., quoting C.J. Word, The Future of DNA Testing and Law Enforcement (2001),

Speech at the Brooklyn Law School Symposium on DNA: Lessons From the Past-Problems

For the Future, in 67 Brooklyn L.Rev. (Fall 2001), 249, 251, fn. 5. Y-STR testing became a

regularly employed form of DNA testing around 2002 and is typically utilized "where DNA

evidence includes a mixture of male and female DNA." State v. Metcalf, 12th Dist. No.

CA2010-12-326,

, ¶ 16, citing State v. Prade,

, 2010-Ohio-

1842, ¶ 21-23; U.S. Department of Justice (July 2002), Using DNA to Solve Cold Cases, at 5.

Y-STR DNA testing is used for both sexual assault and non-sexual assault cases where

mixed samples are collected from evidence. Specifically, Y-STR DNA is useful in cases

where there is a small amount of male DNA that may be overwhelmed by female DNA in a

mixed sample. See

.

{¶ 8} In this case, the Y-STR DNA testing performed on the zip ties revealed a single

male DNA profile that did not match that of Thornton. With the agreement of Thornton, the

entire DNA testing file was submitted to the Ohio Bureau of Criminal Identification and

Investigation ("BCI"). BCI's Dr. Elizabeth Benzinger confirmed that the Y-STR DNA testing

was performed correctly. Further BCI's testing of the DNA revealed that the DNA found on

the zip ties did not match any of the law enforcement officers who worked the crime scene at

the Cash Express on September 11, 2007, thereby eliminating the possibility of accidental 1 contamination.

{¶ 9} In addition to the Y-STR DNA testing, the Ohio Innocence Project also

contacted Philip F. Locke, Jr., a member of the American Society for Photogrammetry and

Remote Sensing, to perform a photogrammetric analysis of the surveillance video. According

1. Though not in the record, defense counsel indicates that she received a phone call from Clermont County Assistant Prosecutor David Hoffman informing her that he had inadvertently touched the zip ties after Thornton's last trial but that his DNA was also not the male profile found on the zip ties. -4- Clermont CA2012-09-063

to Locke, photogrammetry is a science based on triangulation which measures an object in a

space where a photograph was taken. A photogrammitrist uses the lines of sight to

mathematically produce three-dimensional coordinates to determine specific characteristics

like the height of an object or individual.

{¶ 10} According to Locke's photogrammetric analysis, the perpetrator in the

surveillance photos captured September 7, 2011 was approximately 5'11" tall with an

accuracy rate of plus or minus three-fourths of an inch. Thus, the perpetrator could be no

more than 6 feet tall. As the parties stipulated at the 2008 trial that Thornton is 6'3" tall,

Locke determined that "it is clear to a reasonable degree of scientific certainty that the

perpetrator could not possibly be Kevin Thornton."

{¶ 11} Based upon the DNA testing and photogrammetric analysis, the Ohio

Innocence Project and Thornton moved for leave to file a delayed motion for a new trial and

petitioned for postconviction relief on June 4, 2012. On August 17, 2012, after a hearing on

the motion for leave to file for a new trial, the trial court denied both the motion and the

petition, despite a finding that the photogrammetry evidence would have been compelling to

a jury.

{¶ 12} From the trial court's denial of his motion for leave to move for a new trial and

petition for postconviction relief, Thornton appeals, raising two assignments of error.

{¶ 13} Assignment of Error No. 1:

{¶ 14} THE TRIAL COURT ERRED IN DENYING [THORNTON'S] MOTION FOR

LEAVE TO FILE A MOTION FOR NEW TRIAL.

{¶ 15} In his first assignment of error, Thornton argues that, when "exonerative

evidence" is beyond the reach of a defendant within 120 days of his trial, he is unavoidably

prevented from discovery of that evidence and should be granted leave to file a motion for a

new trial. -5- Clermont CA2012-09-063

{¶ 16} Crim.R. 33(A)(6) provides the following as one of the grounds upon which a

new trial may be granted on a defendant's motion:

When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given * * *.

{¶ 17} Crim.R. 33(B) further provides the following limitations on the time in which

such a motion can be filed:

Motions for new trial on account of newly discovered evidence shall be filed within one hundred twenty days after the day upon which the verdict was rendered * * *. If it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely, such motion shall be filed within seven days from an order of the court finding that he was unavoidably prevented from discovering the evidence within the one hundred twenty day period.

Because appellant's motion was filed well outside the 120-day period, he was required to

obtain leave of court to file his motion for new trial. See State v. Williams, 12th Dist. No.

CA2003-01-001,

.

{¶ 18} When seeking leave to file a motion for new trial, the moving party must

establish by "clear and convincing proof that the defendant was unavoidably prevented from

the discovery of the evidence upon which he must rely[.]"

citing Crim.R. 33(B).

Unavoidable delay results "when the party had no knowledge of the existence of the ground

supporting the motion for a new trial and could not have learned of the existence of that

ground within the required time in the exercise of reasonable diligence." State v. Rodriguez-

Baron, 7th Dist. No. 12-MA-44,

, citing State v. Walden,

(10th Dist. 1984).

{¶ 19} "Clear and convincing proof requires more than a mere allegation that a

defendant has been unavoidably prevented from discovering the evidence he seeks to

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introduce as support for a new trial." State v. Covender, 9th Dist. No. 11CA010093, 2012-

Ohio-6105, ¶ 14; Williams at ¶ 17; State v. Mathis,

(1st Dist. 1999).

"The requirement of clear and convincing evidence puts the burden on the defendant to

prove he was unavoidably prevented from discovering the evidence in a timely manner."

(Emphasis added). Rodriquez-Baron at ¶ 11, citing State v. Fortson, 8th Dist. No. 82545,

.

{¶ 20} If leave of court is given to file a motion for a new trial, the defendant must then

demonstrate that the newly discovered 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. Petro,

(1947),

syllabus.

{¶ 21} Crim.R. 33 motions for a new trial are not to be granted lightly. City of Toledo v.

Stuart,

(6th Dist. 1983). Thus, the denial of a motion for a new trial

on the grounds of newly discovered evidence will not be disturbed on appeal absent an

abuse of discretion. State v. Barnes, 12th Dist. No. CA99-06-057,

, *1

(Dec. 30, 1999), citing State v. Scheibel,

(1990), paragraph one of the

syllabus. Abuse of discretion connotes more than an error of law or judgment; it implies that

the court's attitude is unreasonable, arbitrary or unconscionable. See State v. Darmond,

,

.

{¶ 22} In this case, Thornton argues that both the DNA evidence and the

photogrammetry analysis were unavoidably unavailable to him until long after trial. Thornton

further contends that, had the evidence been presented at trial, there is a strong probability

he would not have been found guilty. We find these arguments unpersuasive. -7- Clermont CA2012-09-063

{¶ 23} As to the Y-STR DNA evidence, Thornton is unable to clearly and convincingly

demonstrate that he was unavoidably prevented from discovering the DNA evidence before

trial or within 120 days after the verdict was rendered. Thornton acknowledges that private

laboratories, including DNA Diagnostics Center, were performing Y-STR DNA testing as early

as 2005 and certainly in 2007 and 2008 when Thornton's trials were held. However,

Thornton's trial counsel acknowledges in an affidavit that he was unaware of Y-STR DNA

testing at the time of the trials and that failing to pursue Y-STR DNA testing was not part of

his "trial strategy." Trial counsel further admits that he "did not contact any DNA laboratories

at the time of either of Kevin Thornton's trials to ascertain whether advanced DNA

technologies could help [Thornton's] case."

{¶ 24} Nevertheless, trial counsel's statements that he did not make an effort to test

the zip ties and that this was not part of his "trial strategy" do not establish through clear and

convincing proof that Thornton was unavoidably prevented from discovering the Y-STR DNA

evidence or any DNA evidence. United States courts began introducing DNA evidence in

criminal cases as early as 1987 and its use was gradually accepted over the next few

decades. Schaffter, Postconviction DNA Evidence: A 500 Pound Gorilla in State Courts

(2002), 50 Drake L.Rev. 695, 699-700 (footnotes omitted). Furthermore, there is nothing in

the record to indicate that Y-STR DNA testing is the best—or only—form of DNA testing

available in this type of case and Thornton was well aware of the zip ties during his 2007 and

2008 trials. Thus, Thornton fails to demonstrate, by clear and convincing evidence, that he—

with or without the assistance of trial counsel—was unavoidably prevented from seeking the

use of any DNA testing, let alone Y-STR DNA testing, at his trials in 2007 or 2008 or within

the following 120 days of the guilty verdict.

{¶ 25} As to the photogrammetry analysis of the still frame of the surveillance video

taken from the Cash Express, there is no evidence that Thornton was unavoidably prevented -8- Clermont CA2012-09-063

from the discovery of this evidence prior to trial or 120 days after the verdict was reached.

Rather, the video surveillance footage was available to Thornton and his trial counsel prior to

the commencement of his first trial in 2007. In fact, Thornton's trial counsel made an

argument at the 2008 trial that the man depicted in the surveillance footage was significantly

shorter than Thornton and, therefore, Thornton could not have been the perpetrator.

Specifically, trial counsel stated during closing arguments:

Now, this one if you look at the heights here [indicating a video still of the surveillance footage], it's obvious to me anyway if you look at it and you examine it—and [Fahey] told us she was about 5 feet 6 inches tall. Ladies and gentlemen, this person here [indicating the perpetrator] is not 6 feet 3 inches standing next to her. You know, this person probably is closer. She may have been right about the 6 feet height that she gave in her initial description to Police Officer Lane, all right?

I mean, they're right there. Their heads are almost—I mean, there is not—if she's 5 foot 6, there is not a 9-inch difference in this photo between her height and the height of this person who is the suspect here, the robber, okay? If Kevin Thornton was standing there, he'd be up here some place. He'd be up a lot higher. Take a look at these things.

While trial counsel did not solicit an expert to perform a photogrammetric analysis and argue

this point, the evidence and this argument were clearly available to Thornton at the time of

trial and, thus, there is no reason why he was unavoidably prevented from discovering the

evidence prior to the running of the 120-day time period of Crim.R. 33.

{¶ 26} Thornton also claims that he was financially unable to acquire DNA and

photogrammetric testing at the time of trial and was, therefore, unavoidably prevented from

obtaining this exonerating evidence. Yet, there is no evidence in the record that Thornton

ever petitioned the trial court for funds to hire an expert or perform DNA testing. As Thornton

presents no reason why petitioning the trial court for funds was not an option to him prior to

trial, this court cannot say that Thornton was unavoidably prevented from obtaining the DNA

and photogrammetric testing simply because of his financial status.

-9- Clermont CA2012-09-063

{¶ 27} Finally, in viewing the DNA evidence and photogrammetry analysis in the

context of the record as a whole, we do not find that the "new" evidence disclosed a strong

probability that it would change the outcome if a new trial were granted. As discussed in

more detail below, the DNA evidence did not disprove that Thornton committed the crime but

only demonstrated that another male came in contact with the zip ties. In addition, the

photogrammetric evidence is cumulative to the argument presented by Thornton's trial

counsel that Thornton was too tall to be the man depicted in the surveillance footage.

Though the photogrammetric analysis could have bolstered this argument, the jury still heard

evidence regarding Thornton's height and the disparity between his height and the height of

the man depicted in the surveillance footage. Thus, discovery of the photogrammetric

analysis does not establish a strong probability that the outcome of the trial would have been

different had this evidence been available and admitted.

{¶ 28} As provided by the Tenth Appellate District, "the phrases in Crim.R. 33(B)

requiring an appellant to show by 'clear and convincing proof' that he or she was 'unavoidably

prevented' from discovering evidence do not allow one to claim that evidence was

undiscoverable simply because the defense did not undertake efforts to obtain the evidence

sooner." State v. Anderson, 10th Dist. No. 12AP-133,

, ¶ 14. Thornton fails

to explain why neither he nor his trial counsel could have timely discovered the DNA or

photogrammetric evidence. Bald assertions that Thornton could not have timely discovered

the evidence is not enough. See

Moreover, "criminal defendants and their trial counsel

have a duty to make a 'serious effort' of their own to discover potential favorable evidence."

{¶ 29} As such, we find that the trial court did not abuse its discretion in denying

Thornton's motion for leave to move for a new trial. Accordingly, Thornton's first assignment

of error is overruled. - 10 - Clermont CA2012-09-063

{¶ 30} Assignment of Error No. 2:

{¶ 31} THE TRIAL COURT ERRED IN DENYING [THORNTON'S] PETITION FOR

POSTCONVICTION RELIEF.

{¶ 32} In his second assignment of error, Thornton contends the trial court improperly

denied his petition for postconviction relief ("PCR petition"). Specifically, Thornton argues

that his PCR petition should have been granted as (1) he was unavoidably prevented from

discovering DNA and photogrammetric evidence due to the ineffective assistance of his trial

counsel, and (2) the DNA testing, in conjunction with other evidence, demonstrated his actual

innocence.

{¶ 33} PCR petitions are governed by R.C. 2953.21, which states, in pertinent part:

(A)(1) Any person who has been convicted of a criminal offense * * * and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the constitution of the United States may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief.

{¶ 34} A postconviction proceeding is not an appeal of a criminal conviction, but a

collateral civil attack on a criminal judgment. State v. Calhoun,

,

; State v. Bell, 12th Dist. No. CA2001-08-197,

, ¶ 5. "In

reviewing an appeal of postconviction relief proceedings, this court applies an abuse of

discretion standard." State v. Widmer, 12th Dist. No. CA2012-02-008,

,

citing State v. Wagers, 12th Dist. No. CA2011-08-007,

, ¶ 15. "A reviewing

court should not overrule the trial court's findings on a petition for postconviction relief that is

supported by competent and credible evidence."

citing State v. Gondor,

,

, ¶ 58. "The term 'abuse of discretion' connotes more than an error of

law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or

- 11 - Clermont CA2012-09-063

unconscionable."

{¶ 35} Pursuant to R.C. 2953.21(A)(2), a PCR petition shall be filed no later than 180

days after the case is appealed or after the expiration of the time for filing an appeal.

However, under R.C. 2953.23(A), a petitioner may file a PCR petition outside the 180-day

window if "the petitioner establishes one of the two following conditions:

(1) "[(a)] The petitioner was either unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief * * * and [(b)] the petitioner shows by clear and convincing evidence that, but for the constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted.

(2) "The petitioner was convicted of a felony and upon consideration of all available evidence related to the inmate's case * * *, and the results of the DNA testing establish, by clear and convincing evidence, actual innocence of that felony offense."

(Internal quotations omitted). State v. Harris, 8th Dist. No. 89156,

,

quoting R.C. 2953.23(A).

{¶ 36} After a review of the record, it is our view that Thornton did not establish either

of the conditions set forth in R.C. 2953.23(A) that would have given the trial court jurisdiction

to entertain his petition.

{¶ 37} As discussed in our review of Thornton's first assignment of error, Thornton

failed to demonstrate that he was unavoidably prevented from discovering and presenting the

DNA and photogrammetric evidence at trial and he has failed to establish, by clear and

convincing evidence, that he would not have been found guilty had this evidence been

presented at trial. Thus, Thornton has failed to establish that he was unavoidably prevented

from discovering new evidence pursuant to R.C. 2953.23(A)(1)(a).

{¶ 38} As such, this court need not address Thornton's additional argument pursuant

to R.C. 2953.23(A)(1)(b) that, but for the constitutional error of ineffective assistance of trial - 12 - Clermont CA2012-09-063

counsel, no reasonable factfinder would have found Thornton guilty. See State v. Turner,

10th Dist. No. 06AP-876,

("Because the two prongs set forth in R.C.

2953.23 are stated in the conjunctive, and we have found appellant failed to satisfy the first

prong under R.C. 2953.23(A)(1)(a), we need not address whether appellant presented clear

and convincing evidence demonstrating that no reasonable fact finder would have found him

guilty in the absence of the alleged constitutional error, pursuant to the second prong in R.C.

2953.23(A)(1)(b)").

{¶ 39} Nevertheless, even if Thornton had met the requirements of R.C.

2953.23(A)(1)(a), Thornton fails to establish the constitutional error of ineffective assistance

of counsel. As discussed in greater detail below, Thornton failed to demonstrate that, had

the DNA and photogrammetric evidence been introduced at trial, the result of the trial would

have been different. Though this information could certainly have been beneficial to

Thornton's case, the DNA evidence does not conclusively eliminate Thornton as the

perpetrator and the discrepancy between Thornton's height and the height of the man shown

in the surveillance footage was argued by trial counsel. Thus, even had Thornton satisfied

the requirements of R.C. 2953.23(A)(1)(a) by demonstrating that he was unavoidably

prevented from discovering the DNA and photogrammetric evidence within 180 days,

Thornton could not satisfy the requirements of R.C. 2953.23(A)(1)(b) as he is unable to show

that, but for the ineffectiveness of his trial counsel in not presenting the DNA and

photogrammetric evidence, he would not have been found guilty.

{¶ 40} Additionally, Thornton has failed to demonstrate that the DNA testing

establishes, by clear and convincing evidence, his actual innocence pursuant to R.C.

2953.23(A)(2). "Actual innocence" under R.C. 2953.21(A)(1)(b) "means that, had the results

of the DNA testing * * * been presented at trial, and had those results been analyzed in the

context of and upon consideration of all available admissible evidence related to the inmate's - 13 - Clermont CA2012-09-063

case * * * no reasonable factfinder would have found the petitioner guilty of the offense of

which the petitioner was convicted * * *."

{¶ 41} Here, Thornton argues that, because his DNA was not found on the zip ties, he

could not be the perpetrator of the aggravated robbery and kidnapping on September 7, 2011

and, therefore, the DNA evidence proves his "actual innocence." However, though the DNA

test results raise a doubt that Thornton was the perpetrator, "'doubt' does not rise to the level

of 'actual innocence' under R.C. 2953.21(A)(1)(b); i.e., that no reasonable factfinder would

have found [Thornton] guilty." Harris,

.

{¶ 42} The Y-STR DNA testing performed on the zip ties does not unequivocally show

that Thornton was not the perpetrator of the aggravated robbery and kidnapping on

September 7, 2011. Rather, the DNA testing provides only that another man's DNA was

found on the zip ties. Evidence at the trial revealed that the perpetrator in this case wore

gloves during the commission of the aggravated robbery and kidnapping. Although Thornton

argues that (1) the perpetrator did not likely wear gloves while purchasing the zip ties or

placing them in his pocket and (2) that DNA could have transferred from the perpetrator to

the zip ties if, while wearing gloves, the perpetrator "touched his sweaty face" or "put his

finger in his ear," these arguments do not establish Thornton's actual innocence or that the

jury would not have found him guilty had this information been admitted at trial. The DNA on

the zip ties could just as easily have come from a factory-worker who manufactured the zip

ties or a store clerk who stacked the zip ties on the shelf or sold the zip ties. As stated by the

trial court, these "competing possibilities indicate a weight of the evidence issue that the jury

could have pondered had this evidence been presented to it, but it does not establish

[Thornton's] actual innocence of the crimes by clear and convincing evidence."

{¶ 43} In addition, the other available and admissible evidence presented at trial in

Thornton's case, in combination with the DNA evidence, does not prove Thornton's actual - 14 - Clermont CA2012-09-063

innocence. At trial, (1) a friend of Thornton's testified that Thornton confessed to the crime,

(2) Thornton commented to his mother that the police thought he had robbed the Cash

Express before any mention of the aggravated robbery had occurred, (3) Fahey selected

Thornton out of a photo lineup after seeing a previous photo lineup that did not include

Thornton's photograph, (4) Fahey identified clothing taken from Thornton's apartment as the

clothing worn by the perpetrator during the commission of the crime, and, finally, (5) three

Milford police officers individually identified Thornton as the perpetrator based upon their

viewing of the surveillance video.

{¶ 44} Thornton argues that the results of the photogrammetric analysis should have

been considered in the trial court's determination of whether a reasonable factfinder would

have found him guilty of aggravated robbery and kidnapping in light of the DNA results,

"being analyzed in the context and upon consideration of all admissible evidence." However,

we find no error in the trial court's refusal to consider the results of the photogrammetric

analysis as Thornton (1) failed to admit such evidence at trial in 2008 and (2) failed to

demonstrate that he was "unavoidably prevented" from presenting such evidence as

contemplated by R.C. 2953.23(A)(1).

{¶ 45} Thus, based upon our review of the DNA evidence in context of the other

available admissible evidence, we find that the trial court's ruling that Thornton failed to

satisfy the requirements of R.C. 2953.23(A)(2) was not an abuse of discretion.

{¶ 46} We find that the trial court did not err in denying Thornton's PCR petition, as he

did not satisfy the requirements of R.C. 2953.23(A)(1) or (2). Accordingly, Thornton's second

and final assignment of error is overruled.

{¶ 47} Judgment affirmed.

S. POWELL and M. POWELL, JJ., concur.

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