STATE OF OHIO, Plaintiff-Appellant vs. FREDERICK F. LUCKETT, Defendant-Appellee

NO. 77527

COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY

144 Ohio App. 3d 648; 761 N.E.2d 105; 2001 Ohio App.

April 26, 2001, Date of Announcement of Decision

July 17, 2001, Decided


SUBSEQUENT HISTORY: Dismissed by, Discretionary appeal not allowed by State v. Luckett, 93 Ohio St. 3d 1474, 757 N.E.2d 772, 2001 Ohio LEXIS 2923 (2001)
Subsequent appeal at, Remanded by State v. Luckett, 2005 Ohio 5199, 2005 Ohio App. LEXIS 4677 (Ohio Ct. App., Cuyahoga County, Sept. 29, 2005)

PRIOR HISTORY: [***1] CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court. Case No. CR-049473. State v. Luckett, 1980 Ohio App. LEXIS 10326 (Ohio Ct. App., Cuyahoga County, Oct. 2, 1980)

DISPOSITION: REVERSED.




COUNSEL: For plaintiff-appellant: William D. Mason, Esq., Cuyahoga County Prosecutor, BY: Richard J. Bombik, Esq., Saleh S. Awadallah, Esq., Assistant County Prosecutors, Cleveland, Ohio.

For defendant-appellee: David Bodiker, Esq., State Public Defender, BY: Jill E. Stone, Esq., Assistant State Public Defender, Columbus, Ohio.

For defendant-appellee: Terry H. Gilbert, Esq., Cleveland, Ohio.

JUDGES: MICHAEL J. CORRIGAN, PRESIDING JUDGE. JOYCE J. GEORGE, J., CONCURS WITH SEPARATE CONCURRING OPINION. (SITTING BY ASSIGNMENT: Judge Joyce J. George, Retired, of the Ninth District Court of Appeals.) COLLEEN CONWAY COONEY, J., DISSENTS WITH SEPARATE DISSENTING OPINION.

OPINIONBY: MICHAEL J. CORRIGAN

OPINION: [**106] [*650] JOURNAL ENTRY and OPINION

MICHAEL J. CORRIGAN, P.J.:
The State of Ohio herein appeals from the decision of the trial court, subsequent to an evidentiary hearing, to grant the appellee, Frederick Luckett, a new trial on two counts each of rape, kidnapping and robbery, for which he was convicted in 1979. The appellee's motion for a new trial was premised on DNA analysis of a seminal fluid purportedly [***2] showing that appellee was excluded as the source of the sperm obtained via a vaginal swab from one of the victims soon after she was raped. [**107]
On September 6, 1979, appellee was indicted for two counts of rape, two counts of kidnapping and two counts of aggravated robbery arising out of two separate incidents which each occurred on August 4, 1979. n1 In each of the incidents, the appellee was alleged to have abducted his victim off the street, forced her into his car, and then raped the victim. In addition to being raped, both women reported that the assailant demanded money and that he went through their purses. In one of the incidents, after raping the victim, the perpetrator forced her to remain in the car while he drove to her landlord's house where he then instructed the victim to attempt to borrow $ 300 from her landlord and to then hand it over to him. After being allowed to exit the car the victim became hysterical, causing the assailant to flee the scene.

n1 Around the same time period the appellee was indicted in the present case, he was indicted in three additional cases which are not part of this appeal, but were originally consolidated with the present case for purposes of sentencing and direct appeal. In Case No. 40524, the appellee was convicted, following a plea of no contest, of carrying a concealed weapon. In Case No. 48533, the appellee was convicted, following a plea of no contest, of felonious assault arising out of an incident where he attacked another person with a razor blade. In Case No. 50553, the appellee was convicted, following a plea of no contest, of kidnapping, rape and felonious assault. All of the crimes arising from the four separate indictments were committed within a two month period between June 10, 1979 and August 4, 1979, except the carrying a concealed weapon charge.

[***3] [*651]
A jury trial commenced on October 25, 1979. The appellee was convicted on both the two kidnapping counts and the two rape counts as they were contained in the indictment. In addition, the appellee was convicted on two counts of robbery, a lesser included offense of the counts of aggravated robbery for which he was indicted.
On appeal to this court the verdicts were affirmed. n2 See State v. Luckett, 1980 Ohio App. LEXIS 10326 (Oct. 2, 1980), Cuyahoga App. Nos. 41666, 41667, 41668, 41669, unreported.

n2 Although this court's decision affirmed the verdict of the trial court, the court did also find that the trial court improperly sentenced the appellant for both the rape and kidnapping of the second victim as there was not a separate animus involved in the commission of each of these offenses. This court did find that there was a separate animus involved in the rape and kidnapping of the first victim as the perpetrator restrained the victim for a considerable period of time after raping her so that he could take her to her landlord's house in an attempt to get money.

[***4]
Although both victims sought medical treatment after being raped, the second victim, Ms. Clinkscales, waited a period of several days before doing so, making it impossible for hospital personnel to collect physical evidence of a sexual assault. The first victim, Ms. Martin, did go to Huron Road Hospital shortly after the commission of the offense where a vaginal swab was administered and showed the presence of spermatozoa in the victim's vaginal canal. No tests were ever performed to confirm that the sperm in question belonged to the appellee, nor was any such test ever requested by the appellee's counsel. n3 Both [**108] victims (as [*652] well as a third rape victim from Case No. 50553) identified the appellee as the perpetrator of the offense by both appearance and voice from a line-up, and each testified that their assailant had a peculiar method of dragging his speech. Each victim also provided similar descriptions of the physical appearance and dress of their assailant, and of the vehicle used in the commission of the crimes. n3

n3 DNA testing was not available in 1979. In (1992 State v. Pierce, 64 Ohio St. 3d 490, 597 N.E.2d 107, a case which also involved Cellmark Diagnostics, the Supreme Court held for the first time that DNA was admissible, relevant evidence in Ohio. The Court first reviewed the trend towards accepting DNA evidence in other states both by the courts and state legislatures. The Court then reasoned that DNA evidence satisfied the standard for admissibility of scientific evidence under existing Ohio law as articulated in State v. Williams (1983), 4 Ohio St. 3d 53, 446 N.E.2d 444:
The standard for the admissibility of scientific evidence in Ohio as found in State v. Williams is whether the questioned evidence is relevant and will assist the trier of fact in understanding evidence presented or in determining a fact in issue. Pierce has not advanced any argument which would justify the use of a standard for the admissibility of DNA evidence different from that used in determining the admissibility of other scientific or technical evidence. DNA evidence may be relevant evidence which will assist the trier of fact in determining a fact in issue, and may be admissible, subject to a judicial analysis for prejudice. Any rebuttal evidence goes to weight rather than admissibility. We, therefore, hold that the trial court did not abuse its discretion in admitting the DNA evidence in this case.

Although irrelevant for the determination of admissibility under Ohio law, the theory and procedures used in DNA typing are generally accepted within the scientific community. "Forensic uses of DNA tests are both reliable and valid when properly performed and analyzed by skilled personnel." (Boldface type deleted.) Genetic Witness: Forensic Uses of DNA Tests, supra, at 7-8. The National Research Council's Committee on DNA Technology in Forensic Science also recently concluded that the procedures for measuring differences in DNA samples are "fundamentally sound." National Research Council, DNA
Technology in Forensic Science (1992) S-24.


[***5]
At trial the prosecutor made reference to the presence of sperm on the person of the first victim during his closing arguments as evidence that she had been raped, although there was no testimony provided by the victim as to whether her assailant had ejaculated during the commission of the offense. There was also never any testimony elicited at trial as to whether the first victim was sexually active and whether she had engaged in consensual intercourse with another male during the twenty-four to forty-eight hour time period immediately preceding the time that she was raped.
Seventeen years later, on October 26, 1996, the appellee filed a motion with the trial court seeking a court order that Huron Road Hospital release the slide containing the specimen in question so that a DNA analysis could be conducted. This motion was not opposed by the state. The trial court ordered that the hospital release the slide for testing on November 15, 1996, and subsequently ordered that the Department of Rehabilitation and Correction permit blood to be drawn from the appellee.
The slide was initially sent to Forensic Science Associates (FSA) in Richmond, California for testing. FSA reported that [***6] the material on the slide was too deteriorated to produce any results. In a letter dated September 9, 1997, FSA reported its results as follows:

1. The genes described above could not be amplified or
typed from either the sperm DNA fraction or the E cell
DNA fraction from the vaginal slide [Item 1]. Since no
human DNA was detectable in either of these fractions it
is likely that the DNA recovered from the spermatozoa and
abundant white blood cells is inadequate for a PCR based
DNA analysis of this evidence.


2. It is likely that this evidence is inadequate, in
part, due to the staining process [H&E] used on these
cells. The hematoxylin stain typically employs both
strong base and strong acid wash steps. This type of
processing typically degrades DNA. While some samples
processed in this manner may be successfully employed in
a PCR analysis, this sample has not only [**109] been degraded by
the histochemical staining process, it subsequently has
been degraded by 20 years of aging. In light of this
history, and our current findings, it is unlikely that
DNA capable of a PCR based analysis remains in the
cellular material from the slide.


FSA reported that [***7] its analysis consumed approximately half of the sample on the slide that had been preserved by Huron Road Hospital.
[*653] On January 27, 1998, FSA, at the appellee's request, sent the slide with the remaining sample to Cellmark Diagnostics in Germantown, Maryland for further testing. Cellmark was able to conduct a DNA analysis on the remaining cellular material on the slide, but in doing so consumed the remainder of the sample. The Cellmark analysis concluded, in a report dated March 26, 1998, that Frederick Luckett is excluded as a source of the DNA obtained from the sperm fraction of the slide.
Based upon these results, on April 21, 1998, the appellee simultaneously filed a motion for leave to file a motion for a new trial and a motion for a new trial. The trial court held evidentiary hearings on both of these motions.
The hearing on the motion for a new trial commenced on December 8, 1999. At the outset of the hearing, the parties entered into a nineteen paragraph joint stipulation as to much of the evidence. Included in the stipulations were the following:

1. The Ohio Supreme Court has held that DNA testing is
scientifically valid, reliable and admissible as
evidence.

[***8]

2. STR DNA testing (as performed by Cellmark Diagnostics
in its analysis of the slide obtained from Huron Road
Hospital) is scientifically valid, reliable and
admissible as evidence.


3. Cellmark Diagnostics is a reputable laboratory
accredited for forensic work.


4. On March 28, 1998 employees at Cellmark Diagnostics
completed STR DNA testing and concluded that based on the
sperm DNA in the Huron Road Hospital slide, M79-146, and
blood DNA from appellee's sample, that the appellee is
excluded as the source of the DNA obtained from the sperm
fraction on the Huron Road Hospital slide.
On December 29, 1999, the trial court granted the appellee's motion for a new trial. The trial court found in part as follows:
You get into all these credibility questions and those are credibility questions that would go to a jury in this case. *** the jury is faced with the question of whether scientific testimony is so persuasive that it overrides these eyewitnesses. So that becomes a jury question.

Certainly, identification in this case as a primary issue and, certainly, the State wanted to try the Clinkscales and the Martin cases together because, even [***9] if people are strangers to their assailant, thus have never seen the assailant before, could be greatly mistaken, maybe two of them together who come to this conclusion, or if one of them isn't such a strong witness but the other circumstances are so similar and the witness who is a strong witness is to be believed, [*654] then even though the second eyewitness identification might be a little shaky, you can rely on the other witness. That is why this case was tried together. ***

So I think that the defense has shown here that this evidence is material and that it couldn't have produced the evidence at the time of this trial and that it has brought it forward in a timely fashion, after the science itself had become developed and accepted. So, I am going to [**110] grant this motion, as it relates to the cases involving Ms. Clinkscales and Ms. Martin.
It is from the trial court's order granting the motion for a new trial that the state brings the instant appeal. The state presents the following singular assignment of error for this court's review:

I. THE TRIAL COURT ABUSED ITS DISCRETION AND ACTED IN A
CAPRICIOUS AND ARBITRARY MANNER BY GRANTING THE
DEFENDANT'S MOTION FOR NEW TRIAL [***10] BASED UPON NEWLY
DISCOVERED EVIDENCE CONTRARY TO CRIMINAL RULE 33(A)(6),
STATE V. PETRO AND THE TRIAL COURT'S OWN ORDERS TO THE
PARTIES.

Crim. R. 33(A)(6) provides as follows:
(A) Grounds. A new trial may be granted on motion of defendant for any of the following causes affecting materially his substantial rights:

***


(6) When new evidence material to the defense
is discovered, which the defendant could not
with reasonable diligence have discovered and
produced at the trial. When a motion for a
new trial is made upon the ground of newly
discovered evidence, the defendant must
produce at the hearing on the motion, in
support thereof, the affidavits of the
witnesses by whom such evidence is expected to
be given, and if time is required by the
defendant to produce such affidavits, the
court may postpone the hearing of the motion
for such length of time as is reasonable under
all the circumstances of the case. The
prosecuting attorney may produce affidavits or
other evidence to impeach the affidavits of
such witnesses.

The Supreme Court held in State v. Petro (1947), 148 Ohio St. 505, 76 N.E.2d 370, that, in order to obtain [***11] a new trial based upon newly discovered evidence, a defendant must show that the new evidence: (1) Discloses a strong probability that it will change the result if a new trial is granted; (2) was discovered after the trial; (3) is such as could not in the exercise of due diligence have been discovered before the trial; (4) is material to the issues; (5) is not merely cumulative to the former evidence; and (6) does not merely impeach or contradict the former evidence. See, also, State v. Chancey, 2000 Ohio App. LEXIS 575 (Feb. 17, 2000), Cuyahoga App. Nos. 75633 & 76277, unreported; State v. Corrothers, 2000 Ohio App. LEXIS 344 (Feb. 3, 2000), Cuyahoga App. No. 75668, unreported; [*655] State v. Porter, 1999 Ohio App. LEXIS 6362 (Dec. 30, 1999), Cuyahoga App. No. 75452, unreported.
A trial court's decision to grant or deny a motion for a new trial is not subject to reversal on appeal absent an abuse of discretion. State v. Schiebel (1990), 55 Ohio St. 3d 71, 564 N.E.2d 54, syllabus. An abuse of discretion exists where the trial court record demonstrates that the court's attitude was unreasonable, arbitrary or unconscionable. State v. Montgomery (1991), 61 Ohio St. 3d 410, 413, 575 N.E.2d 167; State v. Adams (1980), 62 Ohio St. 2d 151, 157, 404 N.E.2d 144. [***12] The discretionary decision to grant a motion for a new trial is an extraordinary measure which should be used only when the evidence presented weighs heavily in favor of the moving party. State v. Otten (1986), 33 Ohio App. 3d 339, 340, 515 N.E.2d 1009; State v. Wilson, 1998 Ohio App. LEXIS 5787 (Dec. 3, 1998), Cuyahoga App. No. 72165, unreported.
A more searching inquiry is required" if the new trial is granted than if denied, however, because of "the concern that a judge's nullification of the jury's verdict may encroach on the jury's important fact-finding function." Tri County Industries v. District of Columbia (2000), 339 U.S. App. D.C. 378, 200 F.3d 836, 840, citing [**111] Langevine v. District of Columbia (D.C. Cir. 1997), 323 U.S. App. D.C. 210, 106 F.3d 1018, 1023.
The deference shown to the trial court in such matters is premised in large part upon the familiarity of the trial court with the details of the case as a result of having presided over the actual trial. State v. Larkin (1996), 111 Ohio App. 3d 516, 523, 676 N.E.2d 906. In giving deference to the conclusions of the trial court, we note that the trial judge who ruled on the motion for a new trial [***13] was the same judge who presided over the appellee's original trial in 1979, and was thus uniquely qualified to evaluate the new evidence proffered by the appellee and to determine its potential effect on the result of a new trial. n4 See State v Corrothers, supra.

n4 During the appellee's sentencing on all four cases on November 7, 1979, the trial judge stated that he was absolutely convinced of the appellee's guilt in each case:

*** I think that the evidence is clear from
the trial that I heard that you did do it.


*** the court does not see any point in
heaping futile sentences and the law, in fact,
makes any sentence that has a minimum of more
than ten years in a case like this a futile
sentence because the Parole Board has the
authority to grant parole after ten years has
been served.


*** I don't have any question that the
defendant is the man who committed these
crimes. The jury verdict was right. And it's
just as horrible for everyone.


Applying the six-part standard [***14] of State v. Petro to the facts of the instant case, we conclude that the trial court abused its discretion in granting the appellee's motion for a new trial as it failed to make a finding that there was a strong probability that a new trial would result in a different outcome. Indeed, [*656] the colloquy between the trial court and counsel immediately prior to the ruling seems to suggest that the trial judge did not believe that there was a strong probability that a new trial would have a different result. Although the trial judge did ultimately grant the appellee's request for a new trial, he did not find that there was a probability, much less a strong probability, that the result of a second trial would have been different.
The trial judge specifically stated during the hearing on the motion for leave to file a motion for a new trial that the new evidence was not probative absent a showing that the sperm sample tested came from the rapist, only if you can show that the sperm came from the rapist, and that it shows that it wasn't him, that's the only way this has value. No such evidence as to the source of the sperm sample was ever offered. It is not enough for a trial court to conclude, [***15] as did the trial court herein, that newly discovered evidence discloses a possibility that it will change the result if a new trial is granted. If that were the standard for granting a motion for a new trial based upon newly discovered evidence, we would probably affirm the decision of the trial court. Nor is it enough, as the dissenting opinion suggests, to conclude that ifthe jury believes that the new evidence is more persuasive than testimony given by eyewitnesses, then a strong probability would exist that the result of the trial would be different. We can find no precedent for concluding that State v. Petro permits a motion for a new trial to be granted on a hypothetical finding that a possibility exists that the result of the new trial might be different.
The record reflects that the first victim in this case, Ms. Martin, who was unwavering in her identification of the appellee both during the investigation and trial, is no longer living and would not be available to testify at the new trial. Her testimony from the 1979 trial would have been admissible at a new trial under Evid.R. 804(A)(4) [**112] and Evid.R. 804(B)(1). The second victim, who also repeatedly identified the appellee, [***16] is still alive and would presumably have been available to testify.
The appellee would have faced numerous obstacles in attempting to obtain a judgment of acquittal in a new trial, as was recognized by the trial court in making its ruling.
In addition to numerous chain of custody issues, which would go to the weight of the evidence, the appellee would have had the burden of establishing the relevance of the DNA evidence given the facts that there was no female cellular material found on the slide and no scientific evidence that the sperm on the slide tested by Cellmark came from the person who raped Ms. Martin.
There is simply no evidence in the record either that the individual who raped Ms. Martin ejaculated during the commission of the offense and/or that Ms. Martin was [*657] not otherwise sexually active at the time of the rape. Although appellee was asked to address these issues both by the trial court in its order granting an evidentiary hearing on the motion for a new trial, and by this court during oral argument, nothing more than speculation has been offered. We cannot presume that a rape victim is not sexually active at the time of the offense merely because she was fifty-one [***17] or fifty-two years old at the time she was victimized. Without answers to these questions the DNA evidence offered by the appellee is of little probative value and is insufficient to establish a strong probability of a different result in the eventuality of a new trial.
Although DNA testing was not available at the time of the trial, the appellee could have had the recovered secretion blood-typed to potentially rule him out as a suspect if he knew that he was not the perpetrator, but for what were presumably strategic reasons, he chose not to do so. At trial, the appellee completely ignored the issue of the identity of the male whose sperm was detected by hospital personnel after the rape.
In his testimony at the hearing, Dr. Blake of FSA stated in regards to the slide containing the cellular material in question:

The analysis is meaningless without being able to
answer the question whether or not the sperm DNA
originated from Mr. Luckett and the nonsperm DNA
originated from Ms. Martin. (Emphasis added.)


*** in the normal course of events, in the analysis of
sexual assault evidence, you will obtain and (sic)
nonsperm fraction that is enriched in DNA from the female

[***18]

*** and you will obtain a DNA preparation that is
enriched in sperm DNA. ***


*** And the female provides a built-in internal control
for the, not only the veracity of the analysis but for
the integrity of the particular specimen subjected to the
analysis.


So in this particular situation the expectation would be,
putting aside the question of the source of the
spermatozoa, one would expect a successful analysis to
reflect that the nonsperm DNA had the same genetic
profile as Ms. Martin absent commingling of the sperm DNA
and the nonsperm fraction.


In this case it was never established that the slide in question contained nonsperm DNA which originated from the first victim, Ms. Martin. This was despite the fact that Dr. Blake testified that he observed distinctively female epithelial cells upon his initial microscopic examination of the same slide at FSA. Dr. Charlotte Word from Cellmark testified that the Cellmark staff DNA analyst who checked the slide for female epithelial cells did not detect [**113] any such cells and stated that it was not possible to determine whether any DNA from a female was [*658] present on the slide. This failure to identify the [***19] presence of female nonsperm DNA on the sample tested, the built-in internal control of the veracity and the integrity of the sample, necessarily compromised the new evidence presented by the appellee.
Dr. Blake also testified to the importance of preserving portions of any sample tested for potential peer review including future testing by litigants with adverse interests:
the consideration of providing or making sure, to whatever extent it is reasonably possible, the opportunity for a colleague to peer review one's work is always a part of what I would characterize as good science.

It is much more important to, however, in criminal litigation in particular, where there are adversarial interests.

I mean, I don't know how I can express that decision-making process any more clearly than I have except to tell you that, you know, it is the kind of thing that, at least in my laboratory, it might not be true in other laboratories, but I have an overbite, or abiding concern to make sure that this kind of issue can be properly dealt with so that the work product itself is not undermined by a failure to provide the opportunity for peer review.
In this case, Cellmark, [***20] through no fault of its own, consumed the remainder of the sample on the slide in the course of its testing. Thus, there is no opportunity to have the material retested or to bring in another expert for the purposes of peer review, further undermining the usefulness of the appellee's new evidence.
A review of the transcript from the original trial in this case clearly demonstrates that the state's case was premised on eyewitness identification. Both victims were able to repeatedly identify the appellee not only by appearance but also by his inactive voice and speech patterns. A third rape victim, in Case No. 50553, also identified the appellee as her assailant. n5 This court is aware that the prosecutor in the original trial made sdistome references during closing arguments to the fact that sperm was found on the material obtained from the vaginal swab performed on the first victim, and that a medical report which indicated that a vaginal culture tested positive for sperm was admitted into evidence at the appellee's trial.

n5 Per Evid.R. 404(B), the testimony of the third victim would be arguably admissible at any new trial as evidence of other crimes, wrongs or acts for purposes, other than to show that the appellee acted in conformity therewith, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

[***21] Nonetheless, there is no indication from the record that the mention of the presence of spermatozoa during closing argument was sufficiently central to the state's case that without it the result of the trial would have been different. One such reference was merely as follows:

[*659] Sperm was found. There is the rape, just as Mr. Lippe
(defense counsel) said. We are not going to dispute the
crimes. We are going to say it wasn't him. But let's
look at the ID's.
The other two references to the presence of sperm by the prosecutor during closing argument were similar in that the prosecutor simply reiterated that sperm was found during the examination of Ms. Martin.
Thus, the prosecutor and the appellee's attorney agreed that the presence of sperm was not material to the identity of the assailant. Identity was established exclusively [**114] through eyewitness identification by both of the victims, including voice identification.
It is well settled that statements made by counsel in opening statements and closing arguments are not evidence. State v. Frazier (1995), 73 Ohio St. 3d 323, 652 N.E.2d 1000. Prior to closing arguments, the trial court instructed the jury as follows: [***22]

I want to remind you once again that what the lawyers say
does not constitute evidence. The evidence again is what
you have heard from the witness stand and the exhibits
which have been admitted and will go with you to the jury
room.
The second victim, Ms. Clinkscales identified the appellee out of a line-up and at trial. Because she waited several days to report that she had been raped, there was never any physical evidence introduced at trial to confirm that she had been raped, as no such evidence existed. It is sheer speculation to assume that the presence of sperm of an unknown origin detected by a vaginal swab performed on one victim (who may or may not have been sexually active at the time she was raped) creates a strong probability that the appellee would be acquitted subsequent to a retrial on the rape, kidnapping and robbery charges relating to the second victim. The new evidence is of scant probative value as it relates to the second victim and plainly is inadequate to create a strong probability that the verdict as to those counts will be different if the appellee is granted a new trial.
Although, the prosecutor did reference the presence of sperm during his [***23] closing arguments, the jury was never told that the sperm originated from the appellee and was never told that the perpetrator ejaculated during the rape of Ms. Martin. The appellee could have pursued either of these issues at trial, but chose not to do so. We cannot now assume that the jury inferred that the appellee was conclusively established as the source of the sperm found on the person of Ms. Martin and based their verdict on this inference.
During the hearing held by the trial court on the appellee's motion for leave to file a motion for a new trial, the trial judge stated that any DNA results excluding the appellee as the source of the specimen contained on the slide in [*660] question would not be probative without additional evidence that the sperm came from the rapist:
It doesn't show well, it's got to show two things. One is that whoever committed the rape is the person whose sperm was in her body. That's got to be an element, because if all your evidence shows is that it's somebody else's sperm, because she could have had intercourse with somebody seven days before, then it has no significance, then it's just a side issue, has no significance. Only if you can show that [***24] the sperm came from the rapist, and that it shows that it wasn't him, that's the only way this has value.

***

I don't think the sperm ever showed he did it.

***

All the sperm showed was that she had intercourse with somebody in a short period of time. Now I'm saying to you if your evidence doesn't show both, that this would have come from the person who raped her, and that the evidence you've already shown, shows it didn't come from him, but if it doesn't show that it came from the person who raped her, it's not probative evidence.

In its order granting the appellee's request for an evidentiary hearing on the [**115] motion for a new trial, the trial court stated:
The parties shall be prepared to present to the Court:

***


4) Evidence as to other possible sexual
partners of the victim during the relevant
time period.

***


6) Expert testimony as to any relevant
conclusions based on the testing.
The appellee did not present testimony as to other possible sexual partners of the victim during the relevant time period and did not present expert testimony as to relevant conclusions to be drawn from results of [***25] the testing. Dr. Charlotte Word of Cellmark testified that the DNA identified from the sperm sample that she tested could not have come from the appellee, but neither she nor anyone else, other than Dr. Blake, testified to any relevant conclusions based on the testing.
At the hearing on the motion for a new trial, the trial court once again expressed skepticism as to the probative value of the new evidence, but nonetheless granted the motion based on a finding that the new evidence was material and could not in the exercise of due diligence have been discovered prior to trial. It was not enough that the trial court make a finding as to the materiality of the [*661] evidence. It was also necessary to make a finding under State v. Petro that it was strongly probable that the new evidence would have changed the result of the trial. The trial judge did not make a finding that the new evidence disclosed a strong probability that it would change the result if a new trial was granted, but, rather, ignored this requirement. In failing to apply the first prong of the six-part standard of State v. Petro dealing with Crim.R. 33(A)(6) motions for a new trial, the trial court abused its discretion. [***26]
Accordingly, because we conclude that the trial court abused its discretion in granting the appellee's motion for a new trial, and because we conclude that the appellee failed to carry his burden of establishing that the new evidence created a strong probability of a different result if a new trial were granted, this assignment of error is sustained.
Judgment reversed.
This cause is reversed for proceedings consistent with this opinion.
It is, therefore, considered that said appellant recover of said appellee its costs herein.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MICHAEL J. CORRIGAN
PRESIDING JUDGE

JOYCE J. GEORGE, J., CONCURS WITH
SEPARATE CONCURRING OPINION.
(SITTING BY ASSIGNMENT:
Judge Joyce J. George, Retired,
of the Ninth District Court of
Appeals.)
COLLEEN CONWAY COONEY, J., DISSENTS
WITH SEPARATE DISSENTING OPINION.
N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the [***27] judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S. Ct. Prac.R. II, Section 2(A)(1).

CONCURBY: JOYCE J. GEORGE

CONCUR:
CONCURRING OPINION

JOYCE J. GEORGE, J., CONCURRING:
I concur with the majority opinion that the trial court abused its discretion first, by not following the standards it established for itself and second, by not making the findings required by State v. Petro (1947), 148 Ohio St. 505, 76 N.E.2d 370. Before reaching the requirements of Petro, the trial court set out an evidentiary standard to be met; i.e., that the DNA evidence would only be probative if the defendant could show that the sample came from the rapist. No evidence was offered as to the source of the DNA. Nonetheless, the trial court granted a new trial, ignoring the very standard it had established to be met. This was an abuse of discretion, preceding the [***28] failure to make the Petro findings.

DISSENTBY: COLLEEN CONWAY COONEY

DISSENT:
DISSENTING OPINION

COLLEEN CONWAY COONEY, J. DISSENTING:
On this appeal from the trial court's decision to grant appellee's motion for a new trial, I respectfully dissent from the decision of the majority.
The Ohio Supreme Court has held that "the allowance of a motion for a new trial [**116] on the grounds of newly discovered evidence is within the competence and discretion of the trial judge; and in the absence of a clear showing of abuse such decision will not be disturbed." State v. Hill (1992), 64 Ohio St. 3d 313, 333, 595 N.E.2d 884, citing, Statev. Williams (1975), 43 Ohio St. 2d 88, 330 N.E.2d 891, [*662] paragraph two of the syllabus; see, also, State v. Lopa (1917), 96 Ohio St. 410, 411, 117 N.E. 319; State v. Larkin (1996), 111 Ohio App. 3d 516, 676 N.E.2d 906; Euclid Beach Ltd. v. Brockett, 1999 Ohio App. LEXIS 5910 (Dec. 9, 1999), Cuyahoga App. No. 75047, unreported, (applying a gross abuse of discretion standard).
It is well-established that the term "abuse of discretion" connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary [***29] or unconscionable. State v. Adams (1980), 62 Ohio St. 2d 151, 157, 404 N.E.2d 144 (emphasis added), citing, Steiner v. Custer (1940), 137 Ohio St. 448, 31 N.E.2d 855; Conner v. Conner (1959), 170 Ohio St. 85, 162 N.E.2d 852; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St. 2d 372, 358 N.E.2d 610; see also, State v. Montgomery (1991), 61 Ohio St. 3d 410, 413, 575 N.E.2d 167; State v. Lowe (1994), 69 Ohio St. 3d 527, 532, 634 N.E.2d 616. This court has stated that abuse of discretion is found in the rare instance when a decision is grossly violative of fact and logic so as to demonstrate perversity of will, defiance of judgment, undue passion or extreme bias. State v. Wynn (Dec. 10, 1998), 131 Ohio App. 3d 725, 723 N.E.2d 627, citing, State v. Jenkins (1984), 15 Ohio St. 3d 164, 222, 473 N.E.2d 264; State v. Lombardo, 1995 Ohio App. LEXIS 702 (Feb. 15, 1995), Summit App. No. 16368, unreported.
Whether the trial court has abused its discretion in granting a new trial must be disclosed from the entire record. State v. Petro (1947), 148 Ohio St. 505, 76 N.E.2d 370, citing, Lopa, 96 Ohio St. 410, 117 N.E. 319. [***30] (Emphasis added.) An appellate court should not substitute its judgment for that of the trial court when there exists competent and credible evidence supporting the findings of fact and conclusions of law rendered by the trial court judge. State v. Schiebel (1990), 55 Ohio St. 3d 71, 74, 564 N.E.2d 54.
While it is true that the trial court only specifically addressed some of the six criteria set forth in Petro, such failure may amount to an error, but, in my view, it does not rise to the level of abuse of discretion. The question is whether a review of the entire record supports the trial court's decision to grant the new trial. Thus, because the record reveals that the new evidence meets the Petro requirements, the trial court did not abuse its discretion.
As the majority states, the State based its case on the issue of identification. The trial court stated in its decision granting a new trial that the new DNA evidence raises an issue of credibility regarding the identifications given by the eyewitnesses. The trial court further stated that at the new trial the jury is faced with the question of whether scientific DNA testimony is so persuasive that it overrides these [***31] eyewitnesses. The trial court's statement suggests that if the jury believes that the DNA testing is more reliable than the testimony given by [*663] the eyewitnesses, a strong probability exists that the result of this trial would be different. Thus, the first prong of Petro has been met.
Further, the record shows that the trial judge gave the motion for a new trial careful and honest consideration. The trial court held two hearings on this matter, [**117] one on appellee's motion for leave to file a motion for new trial, and another on appellee's motion for a new trial. The evidentiary hearing on the motion for a new trial lasted nearly six hours. During that time evidence was submitted by expert testimony, and the trial judge questioned these witnesses in areas where clarification was necessary. Therefore, it cannot be said that the trial court acted unreasonably, arbitrarily or unconscionably in making its decision.
In addition, the trial judge had conducted the original trial, so he was exceptionally qualified in making the determination to grant the motion for new trial. See Williams, 43 Ohio St. 2d at 93, citing, United States v. Johnson (1946), 327 U.S. 106, 112, 90 L. Ed. 562, 66 S. Ct. 464. [***32] Deference is shown to the trial court in such matters because of the familiarity of the trial court with the details of the case as a result of having presided over the actual trial. See Larkin, 111 Ohio App. 3d at 523, 676 N.E.2d 906. Here, the trial judge who granted appellee's motion for a new trial was the same judge who heard the evidence in the initial trial.
Notwithstanding the fact that the record as a whole supports the trial court's decision to grant a new trial, the majority argues that the trial court should have required appellee to present evidence as to the source of the sperm which was found on the first victim and on her clothing hours after the attack, and should have determined whether the victim had consensual intercourse within forty-eight hours of the rape. It is uncontradicted that at the hearing on the motion for leave to file the motion for new trial, the trial court stated that the parties would be required to produce the evidence described above (emphasis added).
Essentially, the majority is placing the burden solely on the appellee to produce evidence outside of his counsel's capability. It is important to note that the first victim is no longer [***33] alive; therefore, there is no way for the appellee to obtain information about any consensual sexual partners she may have had at the time of the attack.
Furthermore, it was not the appellee's burden at trial, nor is it now his burden, to prove his innocence. Instead, as with all criminal trials, it was the prosecutor's burden to prove appellee's guilt beyond a reasonable doubt.
Two theories of the source of the sperm have been set forth. First, as argued by the State at trial, the sperm belonged to the rapist. The majority argues that although DNA testing was unavailable, that the appellee should have used the [*664] secretion blood-type test to potentially rule himself out as a suspect. The majority also implies that the appellee did not do so for strategic reasons. However, it was not the burden of the appellee to prove his innocence at trial; it was the State's burden to prove his guilt. Thus, if this test existed, the State could have used the secretion blood-type test which would have helped in determining the source of the sperm. However, the State also made a strategic choice not to test the sperm that was found on the rape victim within two hours of her attack.
The second theory [***34] presented by the majority is that the sperm in question did not belong to the rapist at all, but that its source was a possible consensual partner of the first victim. As noted by the majority, the purpose of a rape kit is to gather physical evidence. R.C. 2907.29. The sperm sample in question came from the prosecutor's evidence. Thus, as part of its investigation it was the role of the medical personnel or law enforcement officers to question the victim as to her other sexual partners as a means of identifying the source of the sperm. If the State had [**118] asked such routine questions of the victim, the prosecution would have been able to make a strong argument as to the source of the sperm. By contrast, it was not the appellee's role at trial to interrogate the victim as to her sexual habits. See R.C. 2907.02 (D); Evid. R. 404 (A)(2).
Thus, because the new evidence presented meets the requirements for granting a motion for a new trial as set forth in Petro, I would find no abuse of discretion in the trial court's decision to grant appellee's motion for a new trial.