{¶ 2} In 1996, a Hamilton County jury returned guilty verdicts against Elliott on two counts of rape and two counts of aggravated burglary. The trial court sentenced him to four indefinite prison terms of eight to twenty-five years, with the sentence for aggravated burglary in count three of the indictment to run consecutively to the sentences for the two concurrent rape counts. We аffirmed the judgment of conviction in December of 1996, see State v. Elliott (Dec. 24, 1996), 1st Dist. No. C-960072, and the Ohio Supreme Court denied Elliott leave to file a delayed appeal. See State v. Elliott (1999),
{¶ 3} In March of 1997, Elliot secured the release of the victim's nightshirt for DNA analysis of a bloodstain that it bore. The DNA analysis excluded Elliott as the source of the blood. Based on this new evidence, Elliott sought a new trial by means of a Crim.R. 33 motion and an R.C.
{¶ 4} In September of 2004, Elliott applied under R.C.
{¶ 7} "The Y Chromosome is the DNA in the nucleus of a cell that is present only in males." C.J. Word, Thе 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. In 1995, the best available DNA test was unable to detect a male DNA profile on a swab taken from a rape victim if no sperm was visible when the swab was examined microscopically. See P. de Mazancourt, Y-STR as Proof of Rape When Sperm Cells Cannot be Found (2002), Address Before the 13th International Symposium on Human Identification. Current Y-Chromosome Short Tandem Repeat ("Y-STR") analysis now allows the development of DNA profiles where no sperm is dеtectable microscopically. U.S. Department of Justice (July 2002), Using DNA to Solve Cold Cases, at 5.
{¶ 9} An "exclusion result" is a DNA-test result "that scientifically precludes or forecloses the * * * inmate as a contributor of biological material recovered from the crime scene or victim." R.C.
{¶ 10} R.C.
{¶ 11} An abuse of discretion is more than an error of law or judgment; it implies that the court's attitude was unreasonable, arbitrary, or unconscionable. See State v. Hill (1967),
{¶ 13} At trial, the victim testified that the intruder had vaginally and orally raped her. She stated that "[i]t had been a while * * * more than a couple of days" since she had last had sex with her husband, and that she did not think her assailant had ejaculated. Nevertheless, the doсtor who conducted the victim's rape-kit examination found semen in the victim's vaginal chamber. The doctor testified at trial that sperm could remain in the vaginal chamber for several days, but that motile sperm would die within a few hours.
{¶ 14} In the course of the victim's rape-kit examination, the doctor tоok several vaginal, oral, and rectal swabs. His microscopic examination of one of the vaginal swabs showed nonmotile sperm. Following standard procedure, he discarded that swab and the microscope slide, and he packaged the remaining swabs for the Hamilton County Corоner's Office. A serologist with the coroner's office conducted visual, chemical, and microscopic analyses of the remaining swabs and found no semen.
{¶ 15} In support of his application for DNA testing of the swabs collected from the victim, Elliott asserted that Y-STR DNA testing was not available at the time of his prosecution, that Y-STR analysis could detect and identify male DNA when a microscopic exam would not, and that Y-STR results that excluded him as the source of male DNA found on the swabs would be outcome-determinative.
{¶ 16} In its memorandum in opposition to Elliott's application for Y-STR DNA testing and at the hearing on his application, the state did not challenge the existence, quantity, or quality of the biological material sought to be tested. It argued only that an exclusion result would not be outcome-determinative.
{¶ 17} The common pleas court found Elliott eligible to apply for DNA testing under R.C.
{¶ 18} In reviewing the court's rejection of Elliott's application for an abuse of discretion, we are guided by the criteria set forth in R.C.
{¶ 19} Thus, the common pleas court's rejection of Elliott's application for DNA testing stands or falls with its determination that DNA-test results excluding Elliott as the source of biological material on the swabs would not be outcome-determinative. Our review of the record compels us to conclude that the court, in rejecting the application on this basis, abused its discretion.
{¶ 20} The victim testified at trial that she did not think that her rapist had ejaculated. But the doctor who performed the victim's rape-kit examination found sperm in her vaginal chamber. The doctor testified that sperm could remain in the vaginal chamber for several days. But the victim testified that "[i]t had been a while * * * more than a couple of days" sincе she and her husband had had sex.
{¶ 21} This testimony distinguishes Elliott's case fromState v. Wilkins,
{¶ 22} In contrast, the evidence adduced at Elliott's trial effectively eliminated the victim's husband as the source of any male DNA in her vaginal chamber. And it did not allow for any source of such DNA but the victim's rapist. Thus, the source of any male DNA on the rape-kit swabs could only have been the rаpist.2 It follows that a YS-TR test result that excludes Elliott as the source of male DNA on the swabs would necessarily exclude him as the victim's rapist. Accordingly, we conclude that an exclusion result would be outcome-determinative.
{¶ 23} Pursuing this line of reasoning, we further conclude that an exclusion result that would be outcome-determinative of the rapes would likewise be outcome-determinative of the aggravated burglaries. The jury found Elliott guilty of two counts of aggravated burglary. One count charged that he had trespassed at a time when someone was present or likely to be present; the оther count charged that he had done so with a deadly weapon or dangerous ordnance. And both counts charged that he had acted with a purpose to commit either a theft offense or a felony.
{¶ 24} The victim testified at trial that when she returned to her home after her assault, she fоund several small personal items missing. Thus, either the rapes or a theft offense could have served as the underlying offenses to the aggravated-burglary charges.
{¶ 25} But the evidence presented at trial did not suggest the presence of more than one intruder. Thus, the perpetrator of the raрes must necessarily have been the perpetrator of the burglaries. It follows that, regardless of whether the rapes or a theft offense provide the offenses underlying the aggravated burglaries, Y-STR test results that exclude Elliott as the victim's rapist would effectively exclude him as the burglar.
{¶ 26} The reсord before us thus leads inexorably to the conclusion that Y-STR testing that excludes Elliott as the source of male DNA found on the rape-kit swabs would be outcome-determinative of the rape and aggravated-burglary charges. Therefore, we hold that the common pleas court abused its discretion when it rejected Elliott's application for DNA testing. Accordingly, we sustain the first assignment of error.
{¶ 28} Having thus determined that the common pleas court abused its discretion when it rejected Elliott's application for DNA testing, we reverse the court's judgment and remand the case for further proceedings consistent with law аnd this Opinion.
Judgment reversed and cause remanded.
Hildebrandt, P.J., and Painter, J., concur.