{¶ 1} Aрpellant, Dajuan Emerson, challenges his convictions for aggravated murder and tampering with evidence. Raising five assignments of error, appellant argues that his DNA
{¶ 2} On July 4, 2007, the Cleveland police responded to the home of Marnie Macon оn Elton Road in Cleveland, Ohio. Officers found Macon stabbed to death and naked from the waist down. The police began the task of collecting evidence,
{¶ 3} The case remained unsolved until 2009, when a positive DNA profile match from the bloody doorknob to one contained in the state DNA database led the Cleveland police to appellant. When questioned about his familiarity with the Elton Road home, he denied ever having been there. However, once he learned of the DNA evidence, he said that he had been there on July 3 or 4, 2007, after he had met a woman at a bar and had paid her for sex, but he left her unharmed. Officers prepared a written statement for appellant to sign detailing this discussion, but appellant refused to sign.
{¶ 4} Appellant was indicted by a Cuyahoga County Grand Jury on charges of aggravated murder in violation оf R.C. 2903.01, aggravated burglary in violation of R.C. 2911.11, and tampering with evidence in violation of R.C. 2921.12. He filed a motion to suppress his statements to the police and a supplementary motion seeking to suppress his DNA identification. On October 16, 2009, the trial court held a hearing on these motions. The evidence presented at the hearing demonstrated that as a result of a 2005 rape investigation, a sample of appellant’s DNA was lawfully obtained and entered into the state DNA database as a known suspect. Appellant was tried and acquitted of those 2005 charges, but his DNA profile remained in the statе database.
{¶ 5} Then, in 2009, a DNA profile was obtained from the blood left on the doorknob inside Macon’s home. This profile of an unknown individual was entered into the state database and matched appellant’s profile from the 2005 investigation. Appellant argues that the statutory scheme establishing the state database did not allow for the retention of records of acquitted individuals, and therefore the identification and everything flowing therefrom must be suppressed. The trial court determined that the state had the authority to maintain the records and denied appellant’s motion to suppress the DNA identification and his statements to the police.
{¶ 6} A jury trial commenced on October 19, 2009, and resulted in appellant’s being found guilty of aggravated murder and tampering with evidence. The trial court dismissed the charge of aggravated burglary pursuant to appellant’s Crim.R. 29 motion. Appellant was sentenced to an aggregate prison term of 25 years to life on November 18, 2009.
{¶ 7} Appellant first argues, “The trial court erred and/or abused its discretion when it denied [his] motion to suppress.” Within this assigned error are two issues: the first deals with the rеtention of appellant’s DNA profile in the state database following his acquittal in 2005; the second deals with the voluntary-waiver of his Miranda rights when giving a statement to the Cleveland police.
The Retention of DNA Records
{¶ 8} Appellant raises an issue not previously addressed by appellate courts in Ohio. Arguing that R.C. 2901.07 and 109.573 do not authorize the continued retention of the DNA profile of one acquitted of a crime, appellant asserts that his identification should have been suppressed.
{¶ 9} “In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility. A reviewing court is bound to accept those findings of fact if supported by competent, credible evidence. However, without deference to the trial court’s conclusion, it must be determined independently whether, as a matter of law, the facts meet the appropriate legal standard.” (Citations omitted.) State v. Curry (1994),
{¶ 10} The Combined DNA Index System (“CODIS”) “is a computerized program designed to house DNA profiles from convicted offenders, forensic samples, suspects, missing persons, unidentified remains and relatives of missing persons in various searchable databases.” Bаringer, CODIS Methods Manual (5th Rev.2009) 3. These profiles are generated using DNA samples that are processed to create a DNA profile unique to the individual.
{¶ 12} In Smith, a defendant challenged a DNA search and match involving Indiana’s DNA database using a DNA profile that remained in the state database after acquittаl of the crimes for which the sample was taken. The Indiana Supreme Court ruled that the trial court properly denied a motion to suppress based on the Fourth Amendment because the sample was lawfully obtained during the first investigation. That court held, “[0]nce DNA is used to create a profile, the profile becomes the property of the Crime Lab. Thus, [a defendant] had no possessory or ownership interest in it. Nor does society recognize an expectation of privacy in records made for public purposes from legitimately obtained samples.” Id. at 439. See also State v. Barkley (2001),
{¶ 13} Analogizing the taking of a DNA sample with the taking of fingerprints, this court has previously noted that a convicted individuаl’s privacy interest in these identifying records is particularly weak. Gaines,
{¶ 14} The state also sees similarity in a Georgia appellate case, Fortune v. State (2009),
{¶ 15} Like Georgia’s DNA collection statutes, Ohio’s scheme does not specify what should happen to validly obtained samples maintained in the database after acquittal. Citing Smith,
{¶ 16} Citing Section 17.60 of the CODIS Manual, appellant claims that the record should have been removed. However, this section dealing with expungement does not require removal of records after acquittal. Had appellant desired records of this earlier, unsuccessful prosecution to be expunged, he could have requested expungement, and then any DNA profile would have been removed pursuant to this sеction. Although not clear, Ohio appears to place the onus of removal from the state database on those acquitted of a crime. At the very least, the exclusionary rule should not be applied to this case, where the DNA profile was validly obtained from the first case, appellant had no possessory or privacy interest in the profile, and the federal CODIS regulations offer a significant deterrent in the form of exclusion from the federal database. See Smith,
{¶ 17} Here, because appellant has no possessory interest in his DNA profile generated from a lawfully obtained DNA sample, he lacks standing to challenge the later CODIS records search as a violation of his Fourth Amendment rights. This view is also shared by Maryland. See Williamson v. State (2010),
{¶ 18} Appellant also argues that the search warrant issued to obtain a sample of appellant’s DNA used to confirm the match already obtained from the
{¶ 19} Detective Joseph Chojnowski testified at the suppression hearing that he had received a report of a DNA profile match from the Cuyahoga County Coroner’s office. He then aрplied for and received a search warrant to obtain a DNA sample from appellant via buccal swab. Appellant argued that this warrant was defective because the attached affidavit described CODIS as a “database that stores sample DNA from convicted felons in the State of Ohio.” In reality, CODIS stores DNA profiles from several classes of individuals, including convicted felons.
{¶ 20} “An affidavit supporting a search warrant enjoys a presumption of validity. To successfully attack the veracity of a facially sufficient affidavit, a defendant must show by a preponderance of the evidence that the affiant made a false statement either ‘intentionally or with a reckless disregard for the truth.’ ‘Reckless disregard’ means that the affiant had serious doubts about an allegation’s truth. Further, even if the affidavit contains false statements made intentionally or recklessly, a warrant based on the affidavit is still valid unless, ‘with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause * * *.’ ” (Ellipsis sic.) State v. Taylor,
{¶ 21} Here, if the statement is removed, the warrant still establishes probable cause to compel a DNA sample to confirm the match оbtained from a search of the CODIS system. This warrant was not invalid.
{¶ 22} The trial court ruled that the state had authority to collect and retain appellant’s DNA profile under R.C. 109.573. The court also indicated that the sample obtained by Chojnowski was taken in good faith. While the language used in R.C. 109.573, which allows for collection and storage of DNA profiles from “forensic casework,” may be so broad as to encompass the facts before us, appellant lacks standing to challenge the search as violative of his Fourth Amendment right, and the exclusionary rule should not be applied to this case even if the DNA database search were beyond the scope of the statute.
Miranda Violation
{¶ 23} Appellant also argued in his suppression motions that his statements made to the Cleveland police during an interview should be suppressed, and the trial court erred in not so holding. “Pursuant to Miranda v. Arizona (1966),
{¶ 24} With regard to the suppression of appellant’s oral statements made to the police officers, Chojnowski testified that he and another officer interviewed appellant without recording the interview. However, Chojnowski did type the statements appellant made. During the interview, appellant requested counsel, and the interview ceased. Appellant refused to sign the typed statement. The first thing evidenced in the statement was that appellant had been read his Miranda rights and had voluntarily waived them. Chojnowski testified that appellant was read his Miranda rights and voluntarily waived them. He also testified that the standard Miranda warnings were posted in large font on the wall appellant was facing for the entire duration of the interview. From the entirety of the evidence offered on this issue,
Sufficiency and Manifest Weight
{¶25} In his second and third аssignments of error, appellant argues that “[t]he guilty verdict is based upon insufficient evidence” and “[t]he guilty verdicts are against the manifest weight of the evidence.”
{¶ 26} Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955),
{¶ 27} When there is substantial evidence upon which the trier of fact has based its verdict, a reviewing court abuses its discretion in substituting its
{¶ 28} The weight to be given the evidence and the credibility оf the witnesses are primarily for the trier of fact to determine. State v. DeHass (1967),
{¶ 29} Sufficiency of the evidence is subjected to a standard different from manifest weight of the evidence. Section 3(B)(3), Article IV of the Ohio Constitution authorizes appellate courts to assess the weight of the evidence independently of the fact-finder. Thus, when а claim is assigned concerning the manifest weight of the evidence, an appellate court “has the authority and duty to weigh the evidence and to determine whether the findings of * * * the trier of the facts were so against the weight of the evidence as to require a reversal and a remanding of the case for retrial.” State ex rel. Squire v. Cleveland (1948),
{¶ 30} The United States Supreme Court recognized the distinction in considering a claim based upon the manifest weight of the evidence as opposed to sufficiency of that evidence. The court held in Tibbs,
{¶ 31} “The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Id. at 175.
{¶ 32} Aggravated murder, as it relates to this case, prohibits purposely, and with prior calculation and design, causing the death of another. R.C. 2903.01(A). Appellant argues there was no evidence that he acted with prior calculation and design. “The section employs the phrase, ‘prior calculation and
{¶ 33} “Some of the important factors to be examined and considered in deciding whether a homicide was committed with prior calculation and design include: whether the accused knew the victim prior to the crime, as opposed to a random meeting, and if the victim was known to him whether the relationship had been strained; whether thought and preparation were given by the accused to the weapon he used to kill and/or the site on which the homicide was tо be committed as compared to no such thought or preparation; and whether the aet was drawn out over a period of time as against an almost instantaneous eruption of events. These factors must be considered and weighed together and viewed under the totality of all circumstances of the homicide.” (Emphasis added.) State v. Jenkins (1976),
{¶ 34} In Torres, we held that a “jury could find prior calculation and design, necessary for an aggravated murder conviction, based on the protracted nature of the murders.” Id. at ¶ 47. In that case, two people were discovered stabbed and bludgeoned tо death in the basement of a home. One body had 37 stab wounds and blunt-force trauma to the head, and the other had 20 stab wounds and blunt-force trauma. In the present case, the victim was stabbed 74 times, including several defensive wounds.
{¶ 35} In State v. Jones, Cuyahoga App. No. 88134,
{¶ 36} Similar events took place in this case. The attack was protracted, occurring in several rooms of the victim’s home. Also signifiсant was the testimony of the coroner, Dr. Daniel Galita, indicating that the victim survived for as long as an hour after the stab wounds were inflicted, but was unable to move because her spinal cord had been damaged. While the victim lay bleeding to death, appellant was cleaning her body and the murder weapon. Sufficient evidence exists in the record to allow a jury to determine that appellant acted with prior calculation and design.
{¶ 37} Appellant also argues that there was no evidence that he tampered with evidence. R.C. 2921.12(A)(1) criminalizes the alteration, destruction, cоncealment, or removal of anything “with purpose to impair its value or availability as evidence in [a] proceeding” by one “knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted.” Here, there is significant evidence that appellant attempted to sanitize the crime scene in an effort to hinder investigation. An empty bottle of cleaning solution was found next to the victim’s body. The coroner’s report and testimony also noted that the victim’s body had been cleaned with a household cleaning product. The knife collectеd at the scene, believed to be the murder weapon, also had been cleaned. This demonstrates that sufficient evidence existed to convict appellant of tampering with evidence.
{¶ 38} Appellant’s convictions are also not against the manifest weight of the evidence. Appellant’s blood, along with the blood of the victim, was found on the knife believed to be the murder weapon. Appellant’s DNA was also found on a beverage can, and his blood was on an interior doorknob in the victim’s home. Appellant admitted being at the victim’s home around the time of her killing after first denying ever having visiting her there. While several other DNA samples collected from the crime scene were not matches to appellant, the sample collected from the knife was a match. Appellant has failed to convince this court that a manifest miscarriage of justice has occurred in this case. Therefore, this assignment of error is overruled.
Jury Instructions
{¶ 39} Appellant also claims, “The trial court abused its discretion in failing to give jury instructions for a lesser included offense.”
{¶ 41} Here, appellant agreed to the jury instructions as proposed by the trial court and never requested a lesser-included-offense instruction. Appellant has waived all but plain error. State v. Underwood (1983),
{¶ 42} We find no error in the jury charge here. A trial court must charge the jury on a lesser included offense “only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense.” State v. Thomas (1988),
Ineffective Assistance of Counsel
{¶ 43} Finally, appellant аrgues that he was “denied effective assistance of counsel.” In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that (1) the performance of defense counsel was seriously flawed and deficient and (2) the result of appellant’s trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984),
{¶ 44} In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985),
{¶ 46} “Even assuming that counsel’s performance was ineffective, this is not sufficient to warrant reversal of a conviction. ‘An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison,
{If 47} “Accordingly, to show that a defendant has been prejudiced by counsel’s deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel’s errors, the result of the trial would have been different.” Id. at 143.
{¶ 48} Here, appellant argues that trial counsel was deficient for failing to file a motion to investigate and invalidate the warrant used to compel appellant to submit а DNA sample based on the language in its attached affidavit that described the CODIS database as a “database that stores sample DNA from convicted felons in the State of Ohio.” Appellant has not shown that a challenge of the inclusion of this statement in the warrant would have changed the outcome of the matter. Appellant argues that he was not a convicted felon, and the warrant would not have been issued without this mistaken reference. The challenged line does not state that appellant was a convicted felon or that his DNA profile was stored in the database as a result of his being a convicted felon.
{¶ 49} Having overruled all of aрpellant’s assigned errors, we affirm his convictions.
Judgment affirmed.
Notes
. Deoxyribonucleic acid.
. Appellant was sentenced to a term of incarceration of life with parole eligibility after 25 years for the unclassified aggravated-murder conviction and a concurrent term of incarceration of one year for tampering with evidence.
. Except, possibly, in the case of identical twins.
. Appellant never claimed in his written suppression motion or at the suppression hearing that he was not read his Miranda rights, but that he did not knowingly and voluntarily waive them. The fact that appellant invoked his right to counsel indicates that appellant was made aware of these rights at the time of interrogation.
. See Franks v. Delaware (1978),