[Cite as State v. Prade , 126 Ohio St.3d 27, 2010-Ohio-1842.]

T HE S TATE OF O HIO , A PPELLEE , v . P RADE , A PPELLANT . [Cite as State v. Prade , 126 Ohio St.3d 27, 2010-Ohio-1842.] Criminal procedure — Postconviction DNA testing — R.C. 2953.74 — Prior test not definitive — Remand to determine whether new test would be
outcome-determinative. (No. 2009-0605 — Submitted December 16, 2009 — Decided May 4, 2010.)
A PPEAL from the Court of Appeals for Summit County, No. 24296,
2009-Ohio-704.

___________________ S YLLABUS OF THE C OURT A prior DNA test is not “definitive” within the meaning of R.C. 2953.74(A) when a new DNA testing method can detect information that could not be detected by the prior DNA test.

__________________ L UNDBERG S TRATTON , J. {¶ 1} Today this court must decide whether a prior DNA test is “definitive” within the meaning of R.C. 2953.74(A) when a new DNA testing
method can detect information that could not be detected by the prior DNA test. Because we hold that defendant’s prior DNA tests were not “definitive” within the meaning of R.C. 2953.74(A), we reverse the judgment of the court of appeals, but we remand the cause to the trial court to consider whether new DNA testing would be “outcome determinative” pur suant to R.C. 2953.74(B) and 2953.71(L).
Facts and Procedural Posture {¶ 2} In 1997, Dr. Margo Prade was shot and killed in her van while parked outside of her medical office in Akron, Ohio. Her ex-husband, AkronS UPREME C OURT OF O HIO

2 Police Captain Douglas Prade, defendant- appellant, was tried and convicted for her murder and sentenced to life in prison. {¶ 3} The key physical evidence at trial was the bite mark that the killer made on Dr. Prade’s arm through her lab coat and blouse. One of the state’s experts testified that the bite mark was “consistent with” defendant’s teeth but concluded that “there’s just not enough to say one way or the other” that it was defendant’s. The state’s other expert te stified that the mark “was made by Captain Prade.” A defense expert opined that defendant’s loose dentures meant that “the act of biting for Mr. Prade, is a virtual impossibility.” {¶ 4} The state also offered testimony from two eyewitnesses. One testified that he saw defendant near the murder scene before the murder, but also testified that although he learned of the murder the day it occurred, he came
forward nine months later after months of press coverage that had featured defendant’s photo. The other eyewitness te stified that he was standing in the parking lot when he heard the possible killer’s car “peeling off,” and although he “didn’t pay it no attention” and did not identify anyone in his first two police interviews, he later identified defendant as the man inside the car during his third interview. The defendant also called an alibi witness, who testified that she saw defendant exercising at roughly the time of the murder. {¶ 5} The trial court sentenced defendan t to life in prison, and the Court of Appeals for Summit County affirm ed his convictions on appeal. State v. Prade (2000), 139 Ohio App.3d 676, 745 N.E.2d 475. Th is court declined discretionary
review. State v. Prade (2000), 90 Ohio St.3d 1490, 739 N.E.2d 816. {¶ 6} In 2004, defendant filed an a pplication for postconviction DNA testing pursuant to R.C. 2953.71. The tr ial court denied the application, concluding that defendant did not qualify for DNA testing, because R.C. 2953.74(A) precludes postconviction DNA testing when “a prior definitive DNA
test has been conducted.” The trial court also deter mined that DNA evidence hadJanuary Term, 2010

3 been introduced at defendant’s trial and excluded defendant as the source of the DNA samples taken from the victim. The c ourt of appeals dis missed defendant’s appeal as untimely. State v. Prade , 9th Dist. No. 22718. {¶ 7} In 2008, defendant filed a second application for postconviction DNA testing. The trial court denied his s econd application, concluding again that defendant did not qualify for postconvicti on DNA testing because prior definitive DNA testing had been conducted. In additi on, the trial court further determined
that defendant failed to show that additional DNA testing would be outcomedeterminative, as required by R.C. 2953.74(B), because the prior DNA testing had
excluded defendant as a source of the DNA tested for trial and other evidence at trial supported his convictions. {¶ 8} The court of appeals affirmed the trial court judgment. The cause is now before this court pursuant to th e acceptance of a discretionary appeal. Analysis {¶ 9} The General Assembly enacted Ohio’s DNA testing statutes in 2003 and has amended them twice since then. 2003 Sub.S.B. No. 11, 150 Ohio Laws, Part IV, 6498; 2004 Sub.H.B. No. 525, 150 Ohio Laws, Part IV, 6262; and
2006 Sub.S.B. No. 262. 1 R.C. 2953.71 through 2953.84 governs postconviction DNA testing. At issue here is R.C. 2953.74, c oncerning the effect of prior tests: {¶ 10} “(A) If an eligible inmate submits an application for DNA testing
under section 2953.73 of the Revised Code and a prior definitive DNA test has been conducted regarding the same biolog ical evidence that the inmate seeks to have tested, the court shall reject the inma te’s application. If an eligible inmate files an application for DNA te sting and a prior inconclusive DNA test has been

1. The General Assembly has enacted 2010 Sub.S.B. No. 77, which amends Ohio’s postconviction DNA testing laws and now provides a definition for the phrase “definitive DNA test,” which is very similar to the definition established by this court. However, the recent amendments do not apply to our decision today, as this appeal predates the passage of this bill and concerns the definition of the law that existed at the time of the trial court’s decision.S UPREME C OURT OF O HIO

4 conducted regarding the same biological ev idence that the inmate seeks to have tested, the court shall revi ew the application and has the discretion, on a case-bycase basis, to either accept or reject the application. * * * {¶ 11} “(B) If an eligible inmate sub mits an application for DNA testing under section 2953.73 of the Revised Code, th e court may accept the application only if one of the following applies: {¶ 12} “* * * {¶ 13} “(2) The inmate had a DNA test taken at the trial stage in the case
in which the inmate was convicted of th e offense for which the inmate is an eligible inmate and is requesting the DNA testing regarding the same biological evidence that the inmate seeks to have tested, the test was not a prior definitive
DNA test that is subject to division (A) of this section, and the inmate shows that DNA exclusion when analyzed in the context of and upon consideration of all available admissible evidence related to the subject inmate’s case as described in division (D) of this section would have been outcome de terminative at the trial stage in that case .” (Emphasis added.) {¶ 14} The trial court denied defe ndant’s renewed motion for postconviction DNA testing pursuant to the statute, concluding that a “prior definitive test” had already been performed. Moreover, the court concluded that
even if it could further consider defe ndant’s petition, the petition would fail under R.C. 2953.74(B) because an exclusion result would only duplicate the result at
trial and would not be outco me-determinative. The court of appeals agreed with the trial court’s analysis of whether th e first test was definitive. 2009-Ohio-704, 2009 WL 388217, ¶ 13. However, although initially concluding that the issue
whether the new DNA test would have b een outcome-determinative was moot, ¶ 15, the court went on to comment that it failed to see how yet another DNA
exclusion would have been outco me-determinative at the trial. Prior Definitive or Inconclusive DNA TestJanuary Term, 2010

5 {¶ 15} The phrase “definitive DNA test” in R.C. 2953.74 is not defined. The court of appeals used a dictionary definition of the word “definitive”: “ ‘serving to provide a final solution or to end a situation.’ ” 2009-Ohio-704, ¶ 8, quoting Merriam-Webster’s Collegiate Di ctionary (11th Ed.2004) 327. Both the trial and appellate co urts concluded that the prior DNA testing in this case was definitive because it excluded defendant. Id. at ¶ 13. We disagree with the conclusion that the prior test was definitive. {¶ 16} At defendant’s trial in 1998, there we re several pieces of biological evidence tested for DNA, including (1) Dr. Prade’s fingernail clippings, (2) a bite mark left on the fabric of the lab coat Dr. Prade was wearing when she was murdered, and (3) a broken, bloodstained bracelet. {¶ 17} Of that evidence, the most significant was the fabric on the
victim’s lab coat over the b ite mark. The state’s DNA testing expert agreed that
the victim’s lab coat over the bite mark on Dr. Prade’s arm was “the best possible source of DNA evidence as to her killer’s identity.” During the attack, Dr. Prade apparently tried to defend herself by using her arm to push the killer away. The killer bit her arm through two layers of clothing—her lab coat and her blouse—
and left a bite mark on her arm. {¶ 18} The testing done on the samples at issue back in 1998 was polymerase chain reaction testing (“PCR”). In 1998, Dr. Thomas Callaghan of the FBI testified that PCR testing had been available for over ten years and was the basis for many diagnostic tests. Dr. Callaghan tested some cuttings of cloth
from the lab coat that Dr. Prade was wearin g at the time of her death. One of the cuttings came from the bite mark that was on the sleeve in the biceps area. Dr. Callaghan testified that he analyzed the bite mark in three samples—the right side, the left side, and the center of the bite mark—because if the biter’s tongue came into contact with the area, some skin cells from the biter’s lips or tongue may have been left on the fabric of the lab coat. However, Callaghan alsoS UPREME C OURT OF O HIO

6 testified that due to the amount of Dr . Prade’s blood on her lab coat, the DNA
from Dr. Prade’s blood overwhelmed or d iluted the DNA from the biter’s skin cells. Dr. Callaghan testified that although DNA other than Dr. Prade’s would have been important in identifying the killer, the bite mark showed only Dr.
Prade’s DNA. {¶ 19} Because defendant was excluded as a contributor to the DNA that was typed in this case, the lower courts concluded that the prior DNA tests done in 1998 were definitive. However, the only information that the DNA testing on
the lab coat revealed was that Dr. Prad e’s blood was present on her lab coat. The state’s expert agreed that the 1998 DNA “test results [did] not give [him] any
information about the killer” and that “the bite mark show[ed] [him] Margo Prade’s DNA only.” Therefore, the testin g excluded defendant only in the sense
that the DNA found was not his, because it was the victim’s. But the “exclusion” excluded everyone other than the victim in that the victim’s DNA overwhelmed
the killer’s DNA due to the limitations of the 1998 testing methods. Therefore, the exclusion was meaningless, and the test cannot be deemed to have been
definitive. New DNA Testing Methods {¶ 20} Since 1998, DNA testing has advanced so far that “a DNA profile may now be developed from items which we re previously unsuccessfully typed or potentially not attempted due to the compromised or limited nature of the sample,” according to one of the expert witnesses. The PCR DNA testing used in this case in 1998 has been largely repl aced by two newer technologies – short tandem repeat (or STR) testing and Y-chromosome STR (or Y-STR) testing. {¶ 21} One of the difficulties with the older DNA testing methods was that, as seen in the tests conducted on Dr . Prade’s lab coat over the killer’s bite mark in 1998, if there was a substantial quantity of the victim’s DNA present, it might overwhelm and prevent de tection of the perpetrator’s DNA. As an expertJanuary Term, 2010

7 explained in an affidavit, “Y-STR testin g avoids this problem, because it detects only the male Y-chromosome on the swab, thus ignoring the overwhelming percentage of female DNA present that may otherwise ‘drown out’ the male perpetrator’s DNA profile.” {¶ 22} When asked to provide an opini on on the value of Y-STR testing on the possible bite mark from Dr. Prad e’s lab coat, the DNA quality assurance administrator from the Ohio Attorney General’s Office, Ohio Bureau of Criminal Identification and Investigation, stated: “If the lab coat cutting contains a bite mark, it is not unexpected that the DNA te sts used in 1998 failed to detect DNA from the biter. When testing mixtures of DNA from two people, it is possible to resolve the different contributors so long as they are present in relatively equal proportions. If the minor component falls much below about one tenth of the total, it will not be detected. It ha s been my experience that trace amounts of DNA are particularly unlikely to be detected when they occur on an item which contains blood, as blood is a very rich source of DNA. * * * More recently, YSTR tests that detect DNA found only in males have become available. In casework, I routinely see where Y-STR testing can resolve the minor male component in mixtures containing an ov erwhelming amount of female DNA. * * * I believe that Y-STR testing has the potential to identify any male DNA that might be contained within the lab coat bite mark sample.” {¶ 23} Thus, new DNA testing methods ar e now able to provide new
information that was not able to be detected at the time of defendant’s trial. We hold that a prior DNA test is not “definitive” within the meaning of R.C. 2953.74(A) when a new DNA testing method ca n detect information that could not be detected by the prior DNA test.
Outcome-determinative {¶ 24} In addition to being required to show that prior DNA testing done at the trial stage was not a prior definitive DNA test, the inmate must show thatS UPREME C OURT OF O HIO

8 the DNA exclusion when analyzed in the context of and upon c onsideration of all
available admissible evidence related to the defendant’s case would have been
outcome-determinative at the trial in that case. R.C. 2953.74(B)(2). {¶ 25} R.C. 2953.71 provides that “outcome determinative” means that “had the results of DNA testing of the subjec t inmate been presented at the trial of the subject inmate requesting DNA te sting and been found relevant and admissible with respect to the felony offense for which the inmate is an eligible inmate and is requesting the DNA testing or for which the inmate is requesting the DNA testing under section 2953.82 of the Re vised Code, 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 2953.74 of the Revised Code, there is a strong probability that no reasonable factfinder would have found the in mate guilty of that offense * * *.” (Emphasis added.) R.C. 2953.71(L). {¶ 26} After finding that the prior testing in this case was definitive, the trial court stated that defendant’s app lication for DNA testing also failed under R.C. 2953.74(B) because new testing woul d not be outcome-determinative. However, the overall focus of the trial court’s opinion was on the issue of the definitiveness of the DNA testing introduced at trial, and because of that focus, the court gave minimal consideration to analyzing whether a new test would be
outcome-determinative. {¶ 27} In reviewing whether a new test would be outcome-determinative, the appellate court initially stated that the issue was moot, 2009-Ohio-704, ¶15, but then stated in the next paragraph of the opinion that defendant’s assignment of error on the issue was overruled, id. at ¶ 16, thus appearing to affirm the judgment of the trial court on the issue. The appellate court’s overall focus in the appeal was very similar to the focus of the trial court – the appellate court’s analysis concentrated on whether the previous testing was definitive and then dealt withJanuary Term, 2010

9 whether new testing would be outcome-determinative in a limited manner that made no attempt to engage in any concerted application of the statutes relevant tothat issue. Like the trial court, the appellate court approached outcomedeterminativeness from the perspective that the previous testing was definitive. {¶ 28} Neither court below considered R.C. 2953.74(B) and 2953.71(L) in detail because they each resolved the issu e of definitiveness against the inmate –
an issue that must be decided in an inma te’s favor before the question of whether additional testing would be outcome-deter minative has any relevance. Because we reverse on the issue of the definitiveness of the prior testing, the trial court must be given the opportunity to consider outcome-determinativeness in detail as the statutes envision. Therefore, rath er than applying R.C. 2953.74(B)(2) and 2953.71(L) at this point in the case, we remand the cause to the trial court for that
court to consider whether the new DNA te sting would be outcome-determinative.
The trial court should consider the issue in light of our conclusion that the prior testing was not definitive but should now focus on the express requirements of
those statutes for outcome-determinativeness.
Conclusion {¶ 29} We do not have before us the issue of whether to allow new DNA testing in cases in which a prior DNA te st provided a match or otherwise provided meaningful information and the inmate is simply asking for a new test using the latest testing methods. Ra ther, our holding is limited to situations in which advances in DNA testing have made it po ssible to learn information about DNA evidence that could not even be detected at the earlier trial. “[I]t was partially the development of Y-STR technology that pr ompted the General Assembly to enact R.C. 2953.71 through 2953.83 in order to a llow otherwise qualified inmates the opportunity to take advantage of advances in technology that were not available at
the time of their trials.” State v. Emerick , 170 Ohio App.3d 647, 2007-Ohio1334, 868 N.E.2d 742, ¶18.S UPREME C OURT OF O HIO

10 {¶ 30} Because we hold that a prior DNA test is not “definitive” within the meaning of R.C. 2953.74(A) when a new DNA testing method can detect
information that could not be detected by the prior DNA test, the DNA testing completed at the time of de fendant’s trial in 1998 was not a “prior definitive test” within the meaning of the postconviction DNA testing statutes. Accordingly, we reverse the judgment of the court of a ppeals and remand the cause to the trial
court to consider whether new DNA tes ting would be outcome-determinative. Judgment reversed
and cause remanded.
P FEIFER , L ANZINGER , and C UPP , JJ., concur.
D ELANEY and O’D ONNELL , JJ., dissent.
B ROWN , C.J., not participating.
P ATRICIA A. D ELANEY , J., of the Fifth Appellate District, sitting for
O’C ONNOR , J.

__________________ O’D ONNELL , J., dissenting. {¶ 31} I respectfully dissent. {¶ 32} In 1998, a jury convicted Douglas Prade of the murder of his exwife, Dr. Margo Prade. At trial, the pros ecution presented evidence of a bite mark on Dr. Prade’s arm that the killer made by biting through her lab coat and blouse. DNA testing of biological evidence found on the lab coat identified only Dr.
Prade’s DNA. {¶ 33} In 2004, Prade applied for postc onviction DNA testing of the biological evidence offered at trial, including the part of the lab coat that had covered the bite mark. However, the trial court conclude d that R.C. 2953.74(A) barred retesting of the DNA on the lab coat because a prior definitive DNA test had been conducted, and that test excl uded Prade as the source of the DNA. Prade failed to timely appeal that decision.January Term, 2010

11 {¶ 34} In 2008, Prade filed a second application for DNA testing, contending that advances in testin g technology permitted the discovery and identification of any DNA that Dr. Prade’s killer may have left on the lab coat. The trial court once again rejected his application on the basis that a prior
definitive test had been conducted on this evidence and that the test had definitively excluded Prade as the source of that DNA. The court of appeals affirmed the denial of another DNA test on the lab coat, and Prade appealed that
decision to this court. {¶ 35} At issue in this appeal is whether the General Assembly intended for courts to consider technological a dvancements in DNA testing in determining whether a prior definitive DNA test has been conducted on the same biological
evidence. {¶ 36} R.C. 2953.74(A) provides: “If an eligible inmate submits an application for DNA testing under sec tion 2953.73 of the Revised Code and a prior definitive DNA test has been conducted regarding the same biological evidence that the inmate seeks to have tested, the court shall reject the inmate’s application.” {¶ 37} This case presents a straight forward question of statutory construction. As we explained in State v. Buehler , 113 Ohio St.3d 114, 2007- Ohio-1246, 863 N.E.2d 124, in construing statutes, “ ‘our paramount concern is the legislative intent in enacting the statute.’ Furthermore, ‘[i]n determining this intent, we first review the statutory language, reading words and phrases in context and construing them according to the rules of grammar and common usage.’ ” (Citation omitted.) Id. at ¶ 29, quoting State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 21. {¶ 38} Here, the General Assembly has not defined the word “definitive” for purposes of postconviction DNA testing. Thus, as we stated in State v.S UPREME C OURT OF O HIO

12 Anthony , 96 Ohio St.3d 173, 2002-Ohio-4008, 772 N.E.2d 1167, ¶ 11, an undefined term in a statute “must be gi ven its plain and ordinary meaning.” {¶ 39} According to Webster’s Third New International Dictionary (1986) 592, the word “definitive” means “serving to supply a final answer, solution, or evaluation and to end an unsettled unresolved condition.” Accordingly, for purposes of R.C. 2953.74(A), a definitive DNA test is one that supplies a final answer in identifying the biological evidence tested. {¶ 40} Notably, neither the plain meaning of the word “definitive” nor any other provision of the postconviction DNA testing statute authorizes the trial
court to consider advances in testing technology to determine whether prior DNA tests were definitive. Moreover, if trial courts began to consider advances in testing technology, no test would ever be considered definitive, because the
standards would continue to evolve and never reveal a fi nal result. The finality of
a conviction could therefore be unde rmined each time a new method of examination or technological advance occu rred, even if the biological evidence had already been the subject of multip le postconviction DNA examinations. The General Assembly intended to preserve final judgments and never provided for
the constant reexamination of DNA sa mples based on scie ntific advances. {¶ 41} This construction of the statute is supported by the narrow remedy afforded inmates in seeking postconviction relief. As this court explained in State v. Steffen (1994), 70 Ohio St.3d 399, 410, 639 N.E.2d 67, postconviction review is not a constitutional right, and it provides only “a narrow remedy.” Because of the significant societal interest in th e finality of judgments, the postconvictionrelief statute provides only a limited oppor tunity to collaterally attack a conviction, an opportunity not intended to allow inmates to relitigate issues previously resolved at trial. See id. (explaining that res judicata applies to actions for postconviction relief); State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 47 (noting that courts construe statutes establishingJanuary Term, 2010

13 postconviction relief narrowly to uphold the so cietal interest in final judgments).
As we stated in State v. Szefcyk (1996), 77 Ohio St.3d 93, 671 N.E.2d 233: “ ‘ “[P]ublic policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the re sult of the contest, and that matters once tried shall be considered forever settled as between the parties.” ’ ” Id. at 95, quoting Federated Dept. Stores, Inc. v. Moitie (1981), 452 U.S. 394, 401, 101 S.Ct. 2424, 69 L.Ed.2d 103, quoting Baldwin v. Iowa State Traveling Men’s Assn. (1931), 283 U.S. 522, 525, 51 S.Ct. 517, 75 L.Ed. 1244. {¶ 42} This court should treat an inmate ’s postconviction application for DNA testing no differently. Notably, in District Attorney's Office for Third
Judicial Dist. v. Osborne (2009), ___ U.S. ___, 129 S.Ct. 2308, 2323, 174 L.Ed.2d 38, the Supreme Court of the United States declined to recognize a freestanding constitutional right to pos tconviction DNA testing. The court explained that any due process right of access to DNA evidence “must be analyzed in light of the fact that [the inmate] has already been found guilty at a fair trial, and has only a limited interest in postconviction relief,” id. at 2320, and it recognized that resolving the dilemma of “how to harness DNA’s power to prove innocence without unnecessarily overt hrowing the established system of criminal justice” is a “task [that] belongs primarily to the legislature,” id. at 2316. {¶ 43} In enacting R.C. 2953.71 et seq., the General Assembly took up this task, considered the public-polic y questions raised by postconviction DNA testing, measured an inmate’s interest in proving actual innocence against the societal interest in the finality of judgments, and established a limited remedy affording postconviction DNA testing in cases where biological evidence has not been the subject of a prior definitive te st. This court should not expand that remedy beyond the statute’s express term s. The legislature could have provided
for courts to consider advances in tes ting technology in determining whether prior tests were definitive, yet it chose not to do so. Instead, by barring applications forS UPREME C OURT OF O HIO

14 retesting when there has been a prior definitive test, the legislature signaled its intent to uphold the finality of convictions. {¶ 44} As the trial court found, the prio r DNA test definitively identified the biological evidence as belonging to Dr. Prade and as excluding Douglas Prade as a source. Thus, this is not a case in which DNA tests were performed that produced no valid and scientifically reliabl e result. Rather, the polymerase chain reaction tests performed before trial supplied a final answer as to the source of the DNA found on Dr. Prade’s lab coat, and Prad e had a full and fair opportunity to challenge any of the shortcomings of this DNA testing technique at trial. {¶ 45} Because R.C. 2953.74 makes no provision for technological advancements in defining what constitutes a prior definitive test, and because the prior DNA tests were therefore definitive, Prade is barred from applying for postconviction DNA testing. {¶ 46} For these reasons, I would abide by the General Assembly’s resolution of the competing public-policy c oncerns at issue here and hold that a prior DNA test may be considered definitive notwithstanding the development of new DNA testing techniques. Accordingly, I would affirm the decision of the court of appeals.
D ELANEY , J., concurs in the foregoing opinion.

__________________ Sherri Bevan Walsh, Summit County Pr osecuting Attorney, and Richard S. Kasay, Assistant Prosecuting Attorney, for appellee. Jones Day, David Booth Alden, and Ann Netzel; and Ohio Innocence Project, Mark A. Godsey, and Da vid M. Laing, for appellant. Paul, Weiss, Rifkind, Wharton & Garr ison, L.L.P., and Michele Hirshman, urging reversal for amicus curiae, The Innocence Network.

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