STATE OF OHIO v. GREGORY CLEMMONS
C.A. CASE NO. 24377
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
September 2, 2011
[Cite as State v. Clemmons, 2011-Ohio-4474.]
T.C. NO. 07CR4544 (Criminal appeal from Common Pleas Court)
GREGORY CLEMMONS, #A577-226, Lebanon Correctional Institution, P. O. Box 56, Lebanon, Ohio 45036 Dеfendant-Appellant
O P I N I O N
Rendered on the 2nd day of September, 2011.
CELEBREZZE, J. (by assignment)
{¶ 2} In 2007, appellant was indicted for the rape of a child under the age of ten. A jury trial ended in appellant‘s conviction and sentence of life in prison. Appellant has filed numerous appeals and postconviction motions without success.
{¶ 3} On August 24, 2010, appellant filed an application fоr DNA testing. In his application, he claimed he did not have any sexually transmitted diseases, but that the victim, J.T.,1 was treated for a sexually transmitted disease when she received medical treatment a few weeks after the incidence of sexual abuse. He argued that he could not hаve been the perpetrator and that a DNA test of the milky green discharge found in the victim‘s underwear would prove his innocence. He also made various other arguments about ineffective assistance of counsel and violations of his right to confront witnesses against him and аttached various documents to his application.
{¶ 4} The trial court dismissed appellant‘s arguments attacking his conviction and focused solely on the information related to his application for DNA testing. The court then determined from the testimony adduced at trial that no “evidence was obtained from any source which contained the DNA of the alleged perpetrator of the offense.” The underwear collected did not contain any DNA from the perpetrator because the incident had occurred in the weeks prior to the viсtim‘s hospital examination.
{¶ 5} The court denied appellant‘s motion on November 8, 2010, and this appeal
Law and Analysis
Right to DNA Testing
{¶ 6} Appellant claims that “[t]he trial court erred in not granting [his] petition for DNA testing violating Article I, Section 16 to the Ohio Constitution [and] the Sixth and Fourteenth Amendments to the United States Constitution.”2
{¶ 7}
{¶ 8} “(a) The offense for which the offender claims to be an еligible offender is a felony, and the offender was convicted by a judge or jury of that offense.
{¶ 9} “(b) One of the following applies:
{¶ 10} “* * *
{¶ 11} “(iii) The felony described in division (C)(1)(a) of this section wаs a sexually oriented offense or child-victim oriented offense, and the offender has a duty to comply with sections
{¶ 13} All of these elements must be met in ordеr for a trial court to accept an application for DNA testing. Id. at ¶16, citing State v. Hayden, Montgomery App. No. 20747, 2005-Ohio-4025.
{¶ 14} Here, appellant‘s application requested the tеsting of a green substance found in the victim‘s underwear for sexually transmitted diseases. Appellant is under the mistaken belief that the victim was treated for such a disease. However, even if this were the case, appellant has failed to identify any material or evidence that could be tested for the presence of the perpetrator‘s DNA.
{¶ 15} Hospital staff who examined the victim for signs of sexual abuse found that shе had a urinary tract infection and that she had previously been prescribed antibiotics. She was
{¶ 16} In a well reasoned and thorough opinion, the trial court found that, “even if the court were to accept his arguments as true, the presence or absence of sexually transmitted diseases would not be outcome determinative, since J.T. did not test positive for any sexually transmitted disease * * *. [Appellant‘s] argument simply ignores the uncontroverted testimony at trial that the child did not suffer from any sexually transmitted disease * * *.”
{¶ 17} Where the requested testing would not be outcome determinative, the court may dеny the application without further analysis. State v. Buehler, 113 Ohio St.3d 114, 2007-Ohio-1246, ¶30-34. “Outcome determinative” is defined to mean that, “had the results of DNA testing been presented at the trial of the subject inmate requesting DNA testing * * * and had those results been analyzed in the context of and upon consideration of all available admissible evidence related to the inmate‘s case as described in division (D) of section
{¶ 18} Here, the trial court‘s decision that the testing of green discharge found in the underwear of the victim would not produce evidence that is outcome determinative is supported in the record. This biological sample does not contain genetic material of the perpetrator, and any test would not exclude appеllant even if his arguments were correct. This conclusion, and the denial of appellant‘s application for DNA testing, was not an abusе of the trial court‘s discretion. Therefore, appellant‘s sole assignment of error is overruled, and the judgment of the trial court is affirmed.
(Hоn. Frank D. Celebrezze, Jr., Eighth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Johnna M. Shia
Gregory Clemmons
Hon. Mary Katherine Huffman