2017 Ohio 987
Ohio Ct. App.2017Background
- Mark D. Sells was convicted in 2005 of aggravated murder and aggravated robbery for beating Sharid Gantz to death with a baseball bat; convictions were affirmed on appeal after resentencing.
- In April 2016 Sells applied for post-conviction DNA testing under R.C. 2953.71 et seq., seeking testing of leather tape from the bat handle found in a creek and, by memorandum, the victim’s pants waistband.
- Trial evidence included co-defendant eyewitness testimony that Sells attacked Gantz, admissions/confessions by Sells to multiple people, Sells’ DNA on cigarette butts at the victim’s house, the victim’s blood on Sells’ pullover, Sells’ blood in the victim’s car and on a pillowcase, and glass fragments matching the scene.
- The trial court denied the DNA- testing application, holding that an exclusionary result from the bat (or pants) would not be outcome determinative given the overwhelming inculpatory evidence.
- Sells appealed, arguing an exclusionary DNA result identifying a third party on multiple items would be outcome determinative and likely exonerate him.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether post-conviction DNA testing should be granted where a test could exclude the defendant | State: deny testing because an exclusion would not create a strong probability no reasonable factfinder would convict given other evidence | Sells: DNA excluding him (and matching a third party on multiple items) would be outcome determinative and likely exonerate him | Denied: court applied abuse-of-discretion review and held exclusion on bat/pants would not be outcome determinative given eyewitnesses, admissions, and forensic evidence tying Sells to the crime |
| Whether presence of a third-party DNA profile on multiple items automatically exonerates defendant | State: presence of other DNA does not negate other strong inculpatory proof | Sells: matching third-party DNA across items supports inference that third party was perpetrator (citing Emerick) | Held: factual distinction—where multiple perpetrators and strong links to defendant exist, third-party DNA on items does not establish strong probability of acquittal |
| Whether the trial court abused discretion in evaluating outcome-determinative standard | State: trial court has discretion under statute to determine outcome determinative | Sells: urged de novo review for that legal determination | Held: abuse-of-discretion review is proper; even under de novo, result would be same |
| Whether pants testing request was properly before the court | State: request not in original application; no showing items preserved or testable material | Sells: sought testing in memorandum | Held: denied for failing to meet statutory requirements and for speculative basis |
Key Cases Cited
- State v. Buehler, 113 Ohio St.3d 114, 863 N.E.2d 124 (Ohio 2007) (explains outcome-determinative standard for post-conviction DNA testing)
- State v. Emerick, 170 Ohio App.3d 647, 868 N.E.2d 742 (Ohio Ct. App. 2007) (third-party DNA on multiple items can be outcome determinative where no other evidence links defendant)