State v. ConstantState v. Constant
Mark Godsey and David M. Laing, Ohio Innocence Project, University of Cincinnati, P.O. Box 210040, Cincinnati, OH 45221 (For Defendant-Appellant).
OPINION
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Anthony P. Constant, appeals the Judgment Entry of the Lake County Court of Common Pleas, in which the trial court denied his second application for DNA testing. For the following reasons, we affirm the decision of the trial court.
{¶2} In May of 1986, Constant was indicted on one count of Aggravated Robbery, in violation of
{¶3} Constant was convicted on all charges after a jury trial and sentenced to serve an indefinite term of imprisonment of 10 to 20 years on each count, to be served concurrently. He is presently out on parole.
{¶4} This court denied Constant‘s direct appeal in State v. Constant, 11th Dist. No. 12-082, 1988 Ohio App. LEXIS 1696, and his petition for postconviction relief was denied as well in State v. Constant, 11th Dist. No. 97-L-097, 1998 Ohio App. LEXIS 2931.
{¶5} Furthermore, Constant filed an application for DNA testing in 2005, which was also denied after a finding that some of the evidence he sought to have tested was destroyed and the evidence remaining was not outcome determinative. Constant later filed a motion with this court for delayed appeal, pursuant to
{¶6} In 2008, Constant filed a second application for DNA testing pursuant to
{¶7} Upon review, the trial court denied his application, finding that Constant did not qualify as an eligible inmate because he had been released on parole. Further, even assuming arguendo that Constant did qualify as an eligible inmate, the trial court found that some of the evidence which Constant sought to test, no longer existed. Moreover, the trial court found that “any DNA testing of the remaining pieces of evidence *** would not be outcome determinative.”
{¶8} Constant timely appeals and raises the following assignments of error:
{¶9} “[1.] The trial court erred to the prejudice of appellant in holding that the appellant did not qualify for DNA testing because he is currently out on parole.
{¶10} “[2.] The trial court erred to the prejudice of appellant in denying the appellant‘s application for DNA testing, where appellant demonstrated that biological material was collected at the crime scene and this evidence still exists (or a search must be conducted to determine if it still exists).
{¶11} “[3.] The trial court erred to the prejudice of appellant in denying the appellant‘s application for DNA testing by ruling that appellant failed to show DNA testing of the evidence would be outcome determinative.”
{¶12} “[A] trial court should exercise its discretion in determining its best course of action when considering an application for DNA testing in an effort to best utilize judicial resources. The decision on how to proceed is left to the court‘s discretion.” State v. Buehler, 113 Ohio St.3d 114, 2007-Ohio-1246, at ¶31. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219 (citations omitted). When applying the abuse of discretion standard, an appellate court may not merely substitute its judgment for that of the trial court. Berk v. Matthews (1990), 53 Ohio St.3d 161, 169.
{¶13} Constant first argues that the trial court erred in holding that he did not qualify for DNA testing because he is currently out on parole. Specifically, he argues that his status as a parolee does not preclude postconviction DNA testing in his case because he is not asking the state to pay for testing; he is simply asking for the evidence to be released so that it may be tested.
{¶14}
{¶15} “(a) The offense for which the inmate claims to be an eligible inmate is a felony, and the inmate was convicted by a judge or jury of that offense.
{¶16} “(b) The inmate was sentenced to a prison term or sentence of death for the felony *** and is in prison serving that prison term or under that sentence of death.
{¶17} “(c) On the date on which the application is filed, the inmate has at least one year remaining on the prison term ***, or the inmate is in prison under a sentence of death ***.”
{¶18} While Constant was convicted of felony offenses by a jury and was sentenced to prison, currently, Constant is out of prison on parole. Thus, he is ineligible for DNA testing. While the statutory language is clear, Constant argues that he is eligible for DNA testing pursuant to
{¶19} Citing to Attorney General Opinion No. 2005-009, in support of his proposition, Constant argues that the Attorney General also noted that
{¶20} We are limited to the four corners of his “application for DNA testing,” and its statutory restrictions.
{¶21} Constant‘s first assignment of error is without merit.
{¶22} In his second assignment of error, Constant asserts that the trial court erred in denying his application for DNA testing because certain evidence still existed and the prosecutor failed to use reasonable diligence to locate it. Specifically, he argues that “there is no evidence or documentation to indicate that the rape kit or any other evidence was actually destroyed” and “a reasonable search has never been undertaken to discover whether this evidence still exists.”
{¶23}
{¶24} Constant cites to State v. Ustaszewski, 6th Dist. No. L-05-1226, 2006-Ohio-329, arguing “that an affidavit by an investigator stating that biological material no longer exists was insufficient for the trial court to determine if the reasonable diligence standard” had been met. Constant further argues that the reasonable diligence standard requires the state to “demonstrate that it has explored all possible locations of the potentially exculpatory evidence and provide documentation of this search.”
{¶25} Ustaszewski is distinguishable from the instant case. In Ustaszewski, the court held that “[s]peculation alone is insufficient. Guessing is not diligence.” Id. at ¶23. Unlike Ustaszewsk, in Constant‘s case, there is neither guesswork nor speculation as to whether the evidence may exist.
{¶26} “If, after employing reasonable diligence in determining [the location of the evidence], the [prosecutor] determines that those locations do not possess the
{¶27} It is clear from the record that certain pieces of evidence which Constant requested, including the pubic hair found in the victim‘s saliva and the hair found on the victim‘s smock, are no longer available for testing. Moreover, “the State is not required to preserve evidence indefinitely.” State v. Hamilton, 2nd Dist. No. 2006 CA 24, 2007-Ohio-434, at ¶10 (citation omitted). Therefore, the trial court did not abuse its discretion.
{¶28} Constant‘s second assignment of error is without merit.
{¶29} In his third assignment of error, Constant maintained that the trial court erred in denying his application by ruling that he failed to show DNA testing of the evidence would be outcome determinative. However, there is still not a strong probability, as the statute requires, that no reasonable factfinder would have found Constant guilty.
{¶31} At trial, there was powerful testimony from the victim identifying Constant as her attacker; she was able to see his face, hair, and clothing in the store. Additionally, she had a brief conversation with Constant on the night in question; she stated that she had the opportunity to observe him in the store for about five to ten minutes. She further testified that Constant had been in the store where she worked on other occasions prior to her attack.
{¶32} The victim testimony alone negates any strong probability that the jury would not have found Constant guilty. See State v. Roberts, 5th Dist. No. 2006-CA-02, 2006-Ohio-5018, at ¶56 (“Even if DNA testing excluded the appellant as the source of the hair in the hands of the victim or the fingerprint found in the home a reasonable jury could still find appellant guilty of the charges set forth in the indictment. A reasonable jury could come to this conclusion based solely upon circumstantial evidence, and testimony of the other witnesses.“) (citation omitted); State v. Nalls, 2nd Dist. No. 21558, 2007-Ohio-1676, at ¶30 (“An exclusion result at this juncture would only demonstrate what the trial court was aware of at trial, namely, that there was no
{¶33} Constant‘s third assignment of error is without merit.
{¶34} For the foregoing reasons, the Judgment Entry of the Lake County Court of Common Pleas, denying Constant‘s second application for DNA testing, is affirmed. Costs to be taxed against appellant.
CYNTHIA WESTCOTT RICE, J., concurs.
MARY JANE TRAPP, P.J., concurs in part, dissents in part, with a Concurring/Dissenting Opinion.
{¶35} I write separately, respectfully concurring in part and dissenting in part because I believe the majority addresses issues that are not yet ripe for review.
{¶36} I concur with the majority‘s determination that Mr. Constant‘s first assignment of error is without merit. Clearly, the procedural vehicle Mr. Constant chose to obtain DNA testing, by way of
{¶37} I respectfully dissent from the remainder of the majority‘s opinion, which addresses Mr. Constant‘s remaining two assignments of error, finding the trial court and
{¶38} Because Mr. Constant does not qualify for testing pursuant to
{¶39} These two issues considered by the trial court simply pose hypothetical questions that are inappropriate for review. Kalish at ¶25, citing Cascioli v. Centr. Mut. Ins. Co. (1983), 4 Ohio St.3d 179, 183. I would decline to answer these propositions because doing so would result in an improper advisory opinion. Id. Thus, I would vacate the trial court‘s judgment to the extent it ruled on such issues.