[Cite as State v. Wilson,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 18CAA040034 F. LEON WILSON : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Delaware County Court of Common Pleas, Case No. 15CRI- 07-0319

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 20, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DOUGLAS DUMOLT DENNIS BELLI Assistant Prosecuting Attorney 536 South High St., Fl. 2 Delaware County Columbus, OH 43215-5785 140 North Sandusky St., 3rd Floor Box 8006 Delaware, OH 43015-8006 [Cite as State v. Wilson,

.]

Gwin, P.J.

{¶1} Appellant F. Leon Wilson [“Wilson”] appeals from the April 3, 2018 judgment

entry of the Delaware County Court of Common Pleas denying his application for post-

conviction DNA testing.

Facts and Procedural History

{¶2} On July 17, 2015, the Delaware County Grand Jury indicted Wilson on three

counts of gross sexual imposition in violation of R.C. 2907.05. Counts 1 and 2 pertained

to E.C., four years old, and Count 3 pertained to K.P., seven years old. Each count

included a school safety zone specification (R.C. 2941.143). The charges arose from

separate incidents between Wilson and E.C. and Wilson and K.P. while at school. Wilson

was their chess teacher.

{¶3} On April 9, 2015, E.C. told her parents her chess teacher touched her,

demonstrating the touch by placing her hand on top of her clothes between her legs and

moving her hand up and down. E.C. told her forensic interviewer the same story.

{¶4} Following Wilson’s arrest, which was publicized in the press, K.P.’s father,

asked K.P. if anything had happened to her since she had been a student in Wilson’s

chess class in February and March 2015. K.P. stated it happened once. K.P. told her

forensic interviewer that Wilson asked her for permission to touch her vagina and when

she gave him permission, he rubbed her vagina over her clothing.

{¶5} On August 31, 2015, Wilson filed a motion to sever Counts 1 and 2 from

Count 3. A hearing was held on September 21, 2015. By judgment entry filed September

24, 2015, the trial court denied the motion. Delaware County, Case No. 18CAA040034 3

{¶6} On December 5, 2015, Wilson filed a motion for competency hearings of

E.C. and K.P. prior to either being permitted to testify. A hearing was held on January 4,

2016. The state indicated it would not be calling E.C. as a witness. The trial court

conducted an examination of K.P. and determined K.P. to be competent to testify.

{¶7} On January 4, 2016, Wilson filed a motion to compel confrontation,

objecting to the playing of E.C.’s videotaped forensic interview during the trial. A hearing

was held on February 11, 2016.

{¶8} On January 21, 2016, Wilson filed a supplemental motion on the issuance

of severance. By judgment entry filed February 22, 2016, the trial court again denied the

motion to sever, and denied Wilson’s motion to compel confrontation, finding E.C.’s out-

of-court statements were admissible as pertaining to medical diagnosis or treatment.

{¶9} A jury trial commenced on February 23, 2016, but the jury could not reach

a verdict on any of the counts and a mistrial was declared. Wilson did not object to the

trial court’s supplemental instruction referred to as a Howard charge. See State v.

Howard,

,

(1998), paragraph two of the syllabus. Wilson

did not object to the declaration of a mistrial because the jury was deadlocked.

Thereafter, a different judge was assigned to the case.

{¶10} On May 27, 2016, Wilson reasserted his motion to exclude E.C.’s

videotaped interview, claiming it violated his right to confrontation and it did not fit the

medical diagnosis or treatment exception to the hearsay rule. Again, the trial court denied

the motion. Delaware County, Case No. 18CAA040034 4

{¶11} A second jury trial commenced on June 6, 2016. The jury found appellant

guilty of Counts 1 and 3, and not guilty of Count 2. The jury also found the offenses were

committed in a school safety zone.

{¶12} On June 24, 2016, Wilson filed a motion for judgment of acquittal and

motion for new trial. By judgment entry filed July 21, 2016, the trial court denied the

motions.

{¶13} By judgment entry filed August 2, 2016, the trial court sentenced Wilson to

an aggregate term of eight and one-half years in prison. This Court affirmed Wilson’s

convictions and sentence. State v. Wilson, 5th Dist. Delaware No. 16-CAA-08-0035,

[“Wilson, I”]. The Ohio Supreme Court declined to review Wilson’s case.

State v. Wilson,

,

,

.

{¶14} On October 2, 2017, Wilson filed an application to reopen his direct appeal

alleging that his Appellate counsel was ineffective for failing to raise a number of specific

arguments relating to trial counsel's alleged deficiencies. On January 19, 2018, this Court

denied Wilson’s application to reopen his direct appeal. On February 21, 2018, the Ohio

Supreme Court declined to accept jurisdiction in this matter. State v. Wilson,

,

.N.E. 3d 502.

{¶15} On September 13, 2017, Wilson filed an application for post-conviction DNA

testing pursuant to R.C. 2953.72. Wilson requested testing of "[t]he three school-uniform

jumpers that law enforcement seized from the home of alleged victim E.C. on April 9,

2015." Delaware County, Case No. 18CAA040034 5

{¶16} In an entry filed April 3, 2018, the trial court denied the application finding

that Wilson failed to establish that the requested DNA evidence would be outcome

determinative.

Assignments of Error

{¶17} “I. THE TRIAL COURT'S SUMMARY DENIAL OF DEFENDANT-

APPELLANT'S APPLICATION FOR DNA TESTING WAS AN ABUSE OF DISCRETION.”

Standard of Appellate Review – Application for Post-conviction DNA testing.

{¶18} In State v. Buhler, the Ohio Supreme Court held,

1. A careful, commonsense reading of R.C. 2953.74(C) in pari

materia with R.C. 2953.72 and 2953.73 and the remainder of R.C. 2953.74

illustrates the intent of the General Assembly to authorize the trial court to

exercise its discretion in how to proceed when ruling on an eligible inmate’s

application for DNA testing.

2. When an eligible inmate files an application for DNA testing

pursuant to R.C. 2953.73, a trial court should exercise its discretion based

upon the facts and circumstances presented in the case as to whether it will

first determine whether the eligible inmate has demonstrated that the DNA

testing would be outcome-determinative, or whether it should order the

prosecuting attorney to prepare and file a DNA evidence report pursuant to

R.C. 2953.75.

,

, 863 N.E. 2d124, paragraphs 1 and 2 of the

syllabus. Delaware County, Case No. 18CAA040034 6

{¶19} R.C. 2953.72(A)(8) provides that when requesting DNA testing pursuant to

R.C. 2953.71 through 2953.81, an eligible offender must submit an acknowledgment form

stating that,

The court of common pleas has the sole discretion subject to an

appeal as described in this division to determine whether an offender is an

eligible offender and whether an eligible offender’s application for DNA

testing satisfies the acceptance criteria described in division (A)(4) of this

section and whether the application should be accepted or rejected, that if

the court of common pleas rejects an eligible offender’s application, the

offender may appeal the rejection, and that no determination otherwise

made by the court of common pleas in the exercise of its discretion

regarding the eligibility of an offender or regarding post-conviction DNA

testing under [sections 2953.71 through 2953.81 of the Revised Code] is

reviewable by or appealable to any court.

(Emphasis added; language severed as unconstitutional omitted, see Noling III,

,

,

); State v. Noling,

,

, 101 N.E.3d435, ¶31. As the Supreme Court has observed,

The text of R.C. 2953.72(A)(8) specifically notes that three of the trial

court’s discretionary decisions regarding DNA testing are appealable: (1)

whether Noling is an eligible offender, (2) whether Noling’s application

satisfied the acceptance criteria, and (3) whether Noling’s application

should have been accepted or rejected. As a result, appellate courts do not

have jurisdiction to hear Noling’s claims that appeal discretionary decisions Delaware County, Case No. 18CAA040034 7

made by the trial court that do not relate to one of these three specifically

listed exceptions. R.C. 2953.72 (A)(8) does not recognize any limits as to

an applicant’s right to appeal a court’s failure to fulfill a mandatory duty; in

fact, the division is entirely silent on that issue.

***

Examining the limits explained in R.C. 2953.72(A)(8) and (A)(9) in

conjunction, it is clear that an appellate court has jurisdiction over a claim

raised by an offender who requests DNA testing if the claim challenges any

of the three discretionary decisions specifically listed as appealable in R.C.

2953.72(A)(8) or if the claim is that the trial court failed to fulfill a mandatory

duty. Appellate courts do not have jurisdiction over claims that the trial court

made incorrect discretionary decisions—other than the three specifically

listed appealable issues—or claims asserting that the trial court performed

a mandatory duty but that the manner in which that duty was performed was

improper.

State v. Noling,

,

, 101 N.E.3d435, ¶32; ¶37.

{¶20} An abuse of discretion exists where the reasons given by the court for its

action are clearly untenable, legally incorrect, or amount to a denial of justice, or where

the judgment reaches an end or purpose not justified by reason and the evidence.

Tennant v. Gallick, 9th Dist. Summit No. 26827,

; In re Guardianship

of S .H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi,

5th Dist. Licking No.2006–CA–41, 2006–Ohio–5823, ¶54. Delaware County, Case No. 18CAA040034 8

ISSUE FOR APPEAL

A. Whether the trial court abused its discretion in denying Wilson’s application for

post-conviction DNA testing.

1. R.C. 2953.71.

{¶21} The procedure for reviewing and accepting DNA-test applications is set

forth in R.C. 2953.71 through 2953.82. After an eligible inmate submits a DNA-test

application, R.C. 2953.73(D) states that the trial court “shall make the determination as

to whether the application should be accepted or rejected. * * * The court shall make the

determination in accordance with the criteria and procedures set forth in [R.C.] 2953.74

to 2953.81.” R.C. 2953.73(D) also requires the trial court to consider the application and

all corresponding and pertinent files, records, affidavits, documentary evidence, and all

materials regarding the proceedings against defendant, “unless the application and the

files and records show [that defendant] is not entitled to DNA testing, in which case the

application may be denied.”

Following its determination, the trial court shall enter a

judgment and order that accepts or rejects the application. R.C. 2953.73(D) mandates

that the trial court shall state the reasons for the acceptance or rejection, based on the

criteria and procedures of R.C. 2953.71 to 2953.81, within the judgment and order.

2. R.C. 2953.74 bars consideration of Wilson’s application.

R.C. 2953.74(B) states:

{¶22} (B) If an eligible inmate submits an application for DNA testing under section

2953.73 of the Revised Code, the court may accept the application only if one of the

following applies: Delaware County, Case No. 18CAA040034 9

(1) The inmate did not have a DNA test taken at the trial stage in the

case in which the inmate was convicted of the offense for which the inmate

is an eligible inmate and is requesting the DNA testing regarding the same

biological evidence that the inmate seeks to have tested, the inmate shows

that DNA exclusion when analyzed in the context of and upon consideration

of all available admissible evidence related to the subject inmate’s case as

described in division (D) of this section would have been outcome

determinative at that trial stage in that case, and, at the time of the trial

stage in that case, DNA testing was not generally accepted, the results of

DNA testing were not generally admissible in evidence, or DNA testing was

not yet available.

(2) The inmate had a DNA test taken at the trial stage in the case in

which the inmate was convicted of the offense for which the inmate is an

eligible inmate and is requesting the DNA testing regarding the same

biological evidence that the inmate seeks to have tested, the test was not a

prior definitive DNA test that is subject to division (A) of this section, and the

inmate shows that DNA exclusion when analyzed in the context of and upon

consideration of all available admissible evidence related to the subject

inmate’s case as described in division (D) of this section would have been

outcome determinative at the trial stage in that case.

{¶23} Wilson’s case would fall under Section (B)(1) because the school uniform

jumpers did not have a DNA test taken at the trial stage. Notably, the trial court could

have used this factor as an alternate ground for rejecting the application because Wilson Delaware County, Case No. 18CAA040034 10

cannot meet the requirement that at the time of the trial stage in his case “DNA testing

was not generally accepted, the results of DNA testing were not generally admissible in

evidence, or DNA testing was not yet available.” State v. Roberts, 5th Dist. Guernsey No.

2006-CA-02,

, appeal not accepted State v. Roberts,

,

, 850 N.E.2d72; State v. Madden, 10th Dist. Franklin No. 08AP-

172,

, ¶10. This is not a case in which Wilson is arguing that advances

in DNA testing have made it possible to learn information about DNA evidence that could

not be detected at his trial. See, State v. Prade,

,

, 930

N.E.2d287, ¶29. Wilson could have, but did not, request DNA testing of the school

uniform jumpers during his first or his second jury trial.

3. Wilson did not satisfy all six of the conditions necessary for the trial court to

accept his post-conviction DNA application.

{¶24} “A court may accept an R.C. 2953.73 application for DNA testing only if it

determines that six conditions apply, two of which are central to this appeal.” State v.

Bonnell, __ Ohio St.3d __,

, 2018 WL4925642 (Aug. 1, 2018), ¶19. First,

the court must find that “the identity of the person who committed the offense was at

issue.” R.C. 2953.74 (C)(3). And second,

A trial court may accept a DNA application only if it determines that

“if DNA testing is conducted and an exclusion result is obtained, the

exclusion result would be outcome determinative.” R.C. 2953.74(C)(4). In

its current form, the Revised Code defines “outcome determinative” to mean

that, had the testing been presented at trial and admitted into evidence,

when considered alongside the other evidence in the case, “there is a strong Delaware County, Case No. 18CAA040034 11

probability that no reasonable factfinder would have found the offender

guilty of [the] offense or, if the offender was sentenced to death relative to

that offense, would have found the offender guilty of the aggravating

circumstance or circumstances the offender was found guilty of committing

and that is or are the basis of that sentence of death.” R.C. 2953.71(L).

Bonnell, ¶19.

a. Identity of the perpetrator was never an issue in Wilson’s case.

{¶25} In the case at bar, the minor victims never identified anyone other than

Wilson as the person whom had inappropriately touched her. The identity of Wilson was

not at issue during trial, rather the issue was whether Wilson had, in fact, committed the

crimes of which he was accused. State v. Madden, 10th Dist. Franklin No. 08AP-172,

, ¶11.

{¶26} R.C. 2953.74(C) mandates that a court may accept an application for DNA

testing only if all six conditions are met.

{¶27} Accordingly, Wilson fails the third prong of the (C)(3) criteria. The trial court

could have used this factor to deny Wilson’s application. Therefore, denial of his

application was proper. State v.

A reviewing court is not authorized to

reverse a correct judgment merely because erroneous reasons were assigned as a basis

thereof. State ex rel. McGinty v. Cleveland City School Dist. Bd. Of Educ.,

, 290,

,

; State ex rel. Cassels v. Dayton City School

Dist. Bd. Of Edn.,

,

,

.

b. Testing of the school uniform jumpers would not be outcome determinative. Delaware County, Case No. 18CAA040034 12

{¶28} Wilson contends that the trial court erred in its determination that he was

not entitled to DNA testing (assuming any materials exist for testing) because the results

would not be outcome determinative.

{¶29} Wilson submits the affidavit of DNA expert Julie A. Heinig, Ph.D., who

opined,

It is my opinion that all three jumpers should have been tested in the

area that [E.C.] indicated that she had been touched. Such testing might

have had substantial probative value in two respects:

a. If a substantial amount of DNA of F. Leon Wilson is obtained

from the pubic area of a jumper, it would be important to test, as a control,

other areas of the jumper. If DNA of F. Leon Wilson were not found

elsewhere on the same jumper, that fact would have some probative value

as evidence of touching in the pubic area.

b. If DNA of F. Leon Wilson is not obtained from the pubic area

of any of the jumpers, that fact would have some probative value as

indicating a lesser likelihood that the touching occurred as alleged.

{¶30} Items of clothing were collected from E.C.’s home on April 9, 2015. 3T. at

412; 487. Five items of clothing that was collected were submitted to the Ohio Bureau of

Investigation [“BCI”] on March 2, 2016. 4T. at 615. The school uniform jumpers were not

submitted to BCI.

{¶31} E.C. and her older sister wear the school uniforms interchangeably. 3T. at

413-414; 488. Both E.C. and her older sister took chess lessons from Wilson 3T. at

413; 488. Neither parent was able to determine which daughter wore the uniforms or on Delaware County, Case No. 18CAA040034 13

what particular date any of the uniforms were worn. 3T. at 413-414; 488. Laundry

generally remained in the laundry hamper until the weekend. 3T. at 413. The laundry

hamper contains a cloth bag into which the clothing is placed. 3T. at 412-413; 488. The

parents did not ever wash the hamper liner bag.

Clothing from other family members

was in the hamper at the time the officer removed the school uniform jumpers and other

items of E.C.’s clothing. 3T. at 412- 413; 489. BCI can only detect DNA from touch

samples with a success rate of 30 percent. 4T. at 630.

{¶32} On the five items of clothing submitted to BCI, Wilson was excluded on all

the items. In spite of the absence of DNA evidence tying Wilson to the crimes, the jury

convicted Wilson. Accordingly, if the school uniform jumpers were tested for touch DNA

and Wilson’s DNA was not present this would not strengthen his innocence claim.

Bonnell,

.

{¶33} If Wilson’s DNA was recovered from the school uniform jumpers, Wilson’s

own expert concedes that it would be some evidence to support his guilt.

{¶34} There has been no argument or evidence presented that some individual

other than Wilson touched either of the girls.

B. Conclusion.

{¶35} Based upon the foregoing, Wilson has failed to demonstrate 1). That the

school uniform jumpers were not tested and at the time of the trial stage in this case, and

DNA testing was not generally accepted, the results of DNA testing were not generally

admissible in evidence, or DNA testing was not yet available [R.C. 2953.74(B)(1)]; 2).The

identity of the perpetrator was at issue during his trial [R.C. 2953.74(C)(3)]; and 3). Any Delaware County, Case No. 18CAA040034 14

of the evidence that he sought to test could be outcome determinative [R.C. 2953.74

(B)(1); (C)(4)].

{¶36} Wilson’s sole Assignment of Error is overruled. The judgment of the

Delaware County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur