[Cite as State v. Thornton, 2013-Ohio-2394.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

CLERMONT COUNTY 

STATE OF OHIO, : 

 Plaintiff-Appellee, : CASE NO. CA2012-09-063 

 

 : O P I N I O N

 - vs - 6/10/2013 

 : 

KEVIN THORNTON, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS 

Case No. 2007 CR 00792 

D. Vincent Faris, Clermont County Prosecuting Attorney, Judith Brant, 76 South Riverside 

Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee 

Donald R. Caster, University of Cincinnati College of Law, P.O. Box 210040, Cincinnati, Ohio 

45221-0040, for defendant-appellant 

 HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, Kevin M. Thornton, appeals a decision of the Clermont 

County Common Pleas Court denying his motion for leave to file a delayed motion for new 

trial and his petition for postconviction relief. For the reasons outlined below, we affirm the 

trial court's judgment. 

{¶ 2} This court has previously affirmed appellant's convictions for aggravated 
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robbery and kidnapping with firearm specifications. State v. Thornton, 12th Dist. No. 

CA2008-10-92, 2009-Ohio-3685. From that decision, the following facts were established: 

On September 11, 2007, at approximately 1:15 p.m., a man 

wearing sunglasses[, a pair of thin cotton or wool gloves,] and a 

hat entered the Cash Express on Main Street in the city of 

Milford, Clermont County, Ohio. The man walked up to the 

counter and asked store employee Leslie Fahey what he needed 

to do to obtain a loan. When Fahey walked around the counter 

to give him a brochure, the man pointed a handgun at her 

stomach and demanded money. When Fahey asked if he was 

serious, the man racked the slide on his handgun, thereby 

chambering a round in the weapon, and repeated his demand. 

Fahey handed over the contents of her cash drawer. The man 

then ordered Fahey to lie down on the floor, bound her hands 

and feet with zip ties, and told her not to scream or he would 

come back. After hearing nothing but silence, Fahey freed her 

hands, cut the zip tie on her feet and sent out an alarm using her 

computer. 

Even though the surveillance photographs of the robbery taken 

by the store's security camera did not show the robber's face, 

[three] Milford police officers believed that, given the 

perpetrator's height and posture, the robber was Thornton. 

When the police showed Fahey a photo lineup that did not 

include Thornton, but contained the photo of a known shoplifter, 

she did not identify any of the men in the lineup as being the 

robber. However, when the police showed Fahey a second 

photo lineup that contained Thornton's photograph, she 

identified Thornton as the man who robbed her. 

Id. at ¶ 22-23. 

{¶ 3} Thus, on the evening of September 11, 2007, police executed search warrants 

upon Thornton's apartment, the apartment of his girlfriend, and his mother's motor vehicle. 

When Sergeant Donald Mills of the Milford Police Department read Thornton the search 

warrant, Sergeant Mills did not mention that the warrant related to a robbery. However, 

Thornton explained to his mother, "They think I robbed the Cash Express. I think it's funny." 

Furthermore, Thornton initially stated that he was home with his mother "all day" but, when it 

was revealed that his mother had not been home all day, Thornton stated that he had slept 

all day. Thornton further explained that he knew about the Cash Express robbery because a 
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neighbor told him he looked like the robber. 

{¶ 4} From Thornton's apartment the police seized a black "Cincinnati Reds" t-shirt 

that was found lying on a table and appeared to have been recently worn. The police also 

seized a pairs of sunglasses found lying underneath the "Cincinnati Reds" t-shirt. When later 

shown to Fahey, she identified the t-shirt and the pair of sunglasses as the items worn by the 

perpetrator during the robbery. However, the police did not find zip ties, a gun, money, or a 

black baseball cap in any of the locations searched. 

{¶ 5} Thornton was placed under arrest the same night and later indicted on one 

count of aggravated robbery in violation of R.C. 2911.01(A)(1), a felony of the first degree, 

and one count of kidnapping in violation of R.C. 2905.01(A)(2), a felony of the first or second 

degree, depending on whether the offender released the victim in a safe place unharmed. 

Both counts were accompanied by firearm specifications pursuant to R.C. 2941.145. The 

pivotal issue at trial was Thornton's identity as the perpetrator. While Thornton's first trial 

ended in a hung jury in November 2007, Thornton was again tried by a jury on April 7-10, 

2008 and was convicted as charged. Thornton was eventually sentenced to serve 12 years 

in prison on September 11, 2009. 

{¶ 6} Approximately two years later, Thornton contacted the Ohio Innocence Project 

which requested that DNA testing be performed on the zip ties used to bind Fahey's feet and 

hands at the Cash Express. With the agreement of the Clermont County Prosecutor's Office, 

on November 9, 2011, the trial court entered an order to allow the collection of evidence for 

the purpose of DNA testing. DNA Diagnostics Center, a state-certified laboratory, performed 

Y-Chromosome Short Tandem Repeat (Y-STR) DNA testing on the zip ties. 

{¶ 7} "DNA testing has become a forensic tool by which technology can increase the 

public's confidence in the judicial system." State v. Elliott, 1st Dist. No. C-050606, 2006-

Ohio-4508, ¶ 6. "'The Y Chromosome is the DNA in the nucleus of a cell that is present only 
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in males.'" Id., quoting C.J. Word, The 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. Y-STR testing became a 

regularly employed form of DNA testing around 2002 and is typically utilized "where DNA 

evidence includes a mixture of male and female DNA." State v. Metcalf, 12th Dist. No. 

CA2010-12-326, 2012-Ohio-674, ¶ 16, citing State v. Prade, 126 Ohio St.3d 27, 2010-Ohio1842, ¶ 21-23; U.S. Department of Justice (July 2002), Using DNA to Solve Cold Cases, at 5. 

Y-STR DNA testing is used for both sexual assault and non-sexual assault cases where 

mixed samples are collected from evidence. Specifically, Y-STR DNA is useful in cases 

where there is a small amount of male DNA that may be overwhelmed by female DNA in a 

mixed sample. See Prade at ¶ 21. 

{¶ 8} In this case, the Y-STR DNA testing performed on the zip ties revealed a single 

male DNA profile that did not match that of Thornton. With the agreement of Thornton, the 

entire DNA testing file was submitted to the Ohio Bureau of Criminal Identification and 

Investigation ("BCI"). BCI's Dr. Elizabeth Benzinger confirmed that the Y-STR DNA testing 

was performed correctly. Further BCI's testing of the DNA revealed that the DNA found on 

the zip ties did not match any of the law enforcement officers who worked the crime scene at 

the Cash Express on September 11, 2007, thereby eliminating the possibility of accidental 

contamination.1

 

{¶ 9} In addition to the Y-STR DNA testing, the Ohio Innocence Project also 

contacted Philip F. Locke, Jr., a member of the American Society for Photogrammetry and 

Remote Sensing, to perform a photogrammetric analysis of the surveillance video. According

 

1. Though not in the record, defense counsel indicates that she received a phone call from Clermont County 

Assistant Prosecutor David Hoffman informing her that he had inadvertently touched the zip ties after Thornton's 

last trial but that his DNA was also not the male profile found on the zip ties. 
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to Locke, photogrammetry is a science based on triangulation which measures an object in a 

space where a photograph was taken. A photogrammitrist uses the lines of sight to 

mathematically produce three-dimensional coordinates to determine specific characteristics 

like the height of an object or individual. 

{¶ 10} According to Locke's photogrammetric analysis, the perpetrator in the 

surveillance photos captured September 7, 2011 was approximately 5'11" tall with an 

accuracy rate of plus or minus three-fourths of an inch. Thus, the perpetrator could be no 

more than 6 feet tall. As the parties stipulated at the 2008 trial that Thornton is 6'3" tall, 

Locke determined that "it is clear to a reasonable degree of scientific certainty that the 

perpetrator could not possibly be Kevin Thornton." 

{¶ 11} Based upon the DNA testing and photogrammetric analysis, the Ohio 

Innocence Project and Thornton moved for leave to file a delayed motion for a new trial and 

petitioned for postconviction relief on June 4, 2012. On August 17, 2012, after a hearing on 

the motion for leave to file for a new trial, the trial court denied both the motion and the 

petition, despite a finding that the photogrammetry evidence would have been compelling to 

a jury. 

{¶ 12} From the trial court's denial of his motion for leave to move for a new trial and 

petition for postconviction relief, Thornton appeals, raising two assignments of error. 

{¶ 13} Assignment of Error No. 1: 

{¶ 14} THE TRIAL COURT ERRED IN DENYING [THORNTON'S] MOTION FOR 

LEAVE TO FILE A MOTION FOR NEW TRIAL. 

{¶ 15} In his first assignment of error, Thornton argues that, when "exonerative 

evidence" is beyond the reach of a defendant within 120 days of his trial, he is unavoidably 

prevented from discovery of that evidence and should be granted leave to file a motion for a 

new trial. 
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{¶ 16} Crim.R. 33(A)(6) provides the following as one of the grounds upon which a 

new trial may be granted on a defendant's motion: 

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 * * *. 

{¶ 17} Crim.R. 33(B) further provides the following limitations on the time in which 

such a motion can be filed: 

Motions for new trial on account of newly discovered evidence 

shall be filed within one hundred twenty days after the day upon 

which the verdict was rendered * * *. If it is made to appear by 

clear and convincing proof that the defendant was unavoidably 

prevented from the discovery of the evidence upon which he 

must rely, such motion shall be filed within seven days from an 

order of the court finding that he was unavoidably prevented 

from discovering the evidence within the one hundred twenty day 

period. 

Because appellant's motion was filed well outside the 120-day period, he was required to 

obtain leave of court to file his motion for new trial. See State v. Williams, 12th Dist. No. 

CA2003-01-001, 2003-Ohio-5873, ¶ 17. 

{¶ 18} When seeking leave to file a motion for new trial, the moving party must 

establish by "clear and convincing proof that the defendant was unavoidably prevented from 

the discovery of the evidence upon which he must rely[.]" Id., citing Crim.R. 33(B). 

Unavoidable delay results "when the party had no knowledge of the existence of the ground 

supporting the motion for a new trial and could not have learned of the existence of that 

ground within the required time in the exercise of reasonable diligence." State v. RodriguezBaron, 7th Dist. No. 12-MA-44, 2012-Ohio-5360, ¶ 11, citing State v. Walden, 19 Ohio 

App.3d 141, 146 (10th Dist.1984). 

{¶ 19} "Clear and convincing proof requires more than a mere allegation that a 

defendant has been unavoidably prevented from discovering the evidence he seeks to 
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introduce as support for a new trial." State v. Covender, 9th Dist. No. 11CA010093, 2012-

Ohio-6105, ¶ 14; Williams at ¶ 17; State v. Mathis, 134 Ohio App.3d 77, 79 (1st Dist.1999). 

"The requirement of clear and convincing evidence puts the burden on the defendant to 

prove he was unavoidably prevented from discovering the evidence in a timely manner." 

(Emphasis added). Rodriquez-Baron at ¶ 11, citing State v. Fortson, 8th Dist. No. 82545, 

2003-Ohio-5387, ¶ 12. 

{¶ 20} If leave of court is given to file a motion for a new trial, the defendant must then 

demonstrate that the newly discovered evidence "(1) discloses a strong probability that it will 

change the result if a new trial is granted, (2) has been discovered since 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 former evidence, and (6) does not 

merely impeach or contradict the former evidence." State v. Petro, 148 Ohio St. 505 (1947), 

syllabus. 

{¶ 21} Crim.R. 33 motions for a new trial are not to be granted lightly. City of Toledo v. 

Stuart, 11 Ohio App.3d 292, 293 (6th Dist.1983). Thus, the denial of a motion for a new trial 

on the grounds of newly discovered evidence will not be disturbed on appeal absent an 

abuse of discretion. State v. Barnes, 12th Dist. No. CA99-06-057, 1999 WL 1271665, *1 

(Dec. 30, 1999), citing State v. Scheibel, 55 Ohio St.3d 71 (1990), paragraph one of the 

syllabus. Abuse of discretion connotes more than an error of law or judgment; it implies that 

the court's attitude is unreasonable, arbitrary or unconscionable. See State v. Darmond, 135 

Ohio St.3d 343, 2013-Ohio-966, ¶ 34. 

{¶ 22} In this case, Thornton argues that both the DNA evidence and the 

photogrammetry analysis were unavoidably unavailable to him until long after trial. Thornton 

further contends that, had the evidence been presented at trial, there is a strong probability 

he would not have been found guilty. We find these arguments unpersuasive. 
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{¶ 23} As to the Y-STR DNA evidence, Thornton is unable to clearly and convincingly 

demonstrate that he was unavoidably prevented from discovering the DNA evidence before 

trial or within 120 days after the verdict was rendered. Thornton acknowledges that private 

laboratories, including DNA Diagnostics Center, were performing Y-STR DNA testing as early 

as 2005 and certainly in 2007 and 2008 when Thornton's trials were held. However, 

Thornton's trial counsel acknowledges in an affidavit that he was unaware of Y-STR DNA 

testing at the time of the trials and that failing to pursue Y-STR DNA testing was not part of 

his "trial strategy." Trial counsel further admits that he "did not contact any DNA laboratories 

at the time of either of Kevin Thornton's trials to ascertain whether advanced DNA 

technologies could help [Thornton's] case." 

{¶ 24} Nevertheless, trial counsel's statements that he did not make an effort to test 

the zip ties and that this was not part of his "trial strategy" do not establish through clear and 

convincing proof that Thornton was unavoidably prevented from discovering the Y-STR DNA 

evidence or any DNA evidence. United States courts began introducing DNA evidence in 

criminal cases as early as 1987 and its use was gradually accepted over the next few 

decades. Schaffter, Postconviction DNA Evidence: A 500 Pound Gorilla in State Courts

(2002), 50 Drake L.Rev. 695, 699-700 (footnotes omitted). Furthermore, there is nothing in 

the record to indicate that Y-STR DNA testing is the best—or only—form of DNA testing 

available in this type of case and Thornton was well aware of the zip ties during his 2007 and 

2008 trials. Thus, Thornton fails to demonstrate, by clear and convincing evidence, that he—

with or without the assistance of trial counsel—was unavoidably prevented from seeking the 

use of any DNA testing, let alone Y-STR DNA testing, at his trials in 2007 or 2008 or within 

the following 120 days of the guilty verdict. 

{¶ 25} As to the photogrammetry analysis of the still frame of the surveillance video 

taken from the Cash Express, there is no evidence that Thornton was unavoidably prevented 
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from the discovery of this evidence prior to trial or 120 days after the verdict was reached. 

Rather, the video surveillance footage was available to Thornton and his trial counsel prior to 

the commencement of his first trial in 2007. In fact, Thornton's trial counsel made an 

argument at the 2008 trial that the man depicted in the surveillance footage was significantly 

shorter than Thornton and, therefore, Thornton could not have been the perpetrator. 

Specifically, trial counsel stated during closing arguments: 

Now, this one if you look at the heights here [indicating a video 

still of the surveillance footage], it's obvious to me anyway if you 

look at it and you examine it—and [Fahey] told us she was about 

5 feet 6 inches tall. Ladies and gentlemen, this person here 

[indicating the perpetrator] is not 6 feet 3 inches standing next to 

her. You know, this person probably is closer. She may have 

been right about the 6 feet height that she gave in her initial 

description to Police Officer Lane, all right? 

I mean, they're right there. Their heads are almost—I mean, 

there is not—if she's 5 foot 6, there is not a 9-inch difference in 

this photo between her height and the height of this person who 

is the suspect here, the robber, okay? If Kevin Thornton was 

standing there, he'd be up here some place. He'd be up a lot 

higher. Take a look at these things. 

While trial counsel did not solicit an expert to perform a photogrammetric analysis and argue 

this point, the evidence and this argument were clearly available to Thornton at the time of 

trial and, thus, there is no reason why he was unavoidably prevented from discovering the 

evidence prior to the running of the 120-day time period of Crim.R. 33. 

{¶ 26} Thornton also claims that he was financially unable to acquire DNA and 

photogrammetric testing at the time of trial and was, therefore, unavoidably prevented from 

obtaining this exonerating evidence. Yet, there is no evidence in the record that Thornton 

ever petitioned the trial court for funds to hire an expert or perform DNA testing. As Thornton 

presents no reason why petitioning the trial court for funds was not an option to him prior to 

trial, this court cannot say that Thornton was unavoidably prevented from obtaining the DNA 

and photogrammetric testing simply because of his financial status. 
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{¶ 27} Finally, in viewing the DNA evidence and photogrammetry analysis in the 

context of the record as a whole, we do not find that the "new" evidence disclosed a strong 

probability that it would change the outcome if a new trial were granted. As discussed in 

more detail below, the DNA evidence did not disprove that Thornton committed the crime but 

only demonstrated that another male came in contact with the zip ties. In addition, the 

photogrammetric evidence is cumulative to the argument presented by Thornton's trial 

counsel that Thornton was too tall to be the man depicted in the surveillance footage. 

Though the photogrammetric analysis could have bolstered this argument, the jury still heard 

evidence regarding Thornton's height and the disparity between his height and the height of 

the man depicted in the surveillance footage. Thus, discovery of the photogrammetric 

analysis does not establish a strong probability that the outcome of the trial would have been 

different had this evidence been available and admitted. 

{¶ 28} As provided by the Tenth Appellate District, "the phrases in Crim.R. 33(B) 

requiring an appellant to show by 'clear and convincing proof' that he or she was 'unavoidably 

prevented' from discovering evidence do not allow one to claim that evidence was 

undiscoverable simply because the defense did not undertake efforts to obtain the evidence 

sooner." State v. Anderson, 10th Dist. No. 12AP-133, 2012-Ohio-4733, ¶ 14. Thornton fails 

to explain why neither he nor his trial counsel could have timely discovered the DNA or 

photogrammetric evidence. Bald assertions that Thornton could not have timely discovered 

the evidence is not enough. See id. Moreover, "criminal defendants and their trial counsel 

have a duty to make a 'serious effort' of their own to discover potential favorable evidence." 

Id. 

{¶ 29} As such, we find that the trial court did not abuse its discretion in denying 

Thornton's motion for leave to move for a new trial. Accordingly, Thornton's first assignment 

of error is overruled. 
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{¶ 30} Assignment of Error No. 2: 

{¶ 31} THE TRIAL COURT ERRED IN DENYING [THORNTON'S] PETITION FOR 

POSTCONVICTION RELIEF. 

{¶ 32} In his second assignment of error, Thornton contends the trial court improperly 

denied his petition for postconviction relief ("PCR petition"). Specifically, Thornton argues 

that his PCR petition should have been granted as (1) he was unavoidably prevented from 

discovering DNA and photogrammetric evidence due to the ineffective assistance of his trial 

counsel, and (2) the DNA testing, in conjunction with other evidence, demonstrated his actual 

innocence. 

{¶ 33} PCR petitions are governed by R.C. 2953.21, which states, in pertinent part: 

(A)(1) Any person who has been convicted of a criminal offense 

* * * and who claims that there was such a denial or infringement 

of the person's rights as to render the judgment void or voidable 

under the Ohio Constitution or the constitution of the United 

States may file a petition in the court that imposed sentence, 

stating the grounds for relief relied upon, and asking the court to 

vacate or set aside the judgment or sentence or to grant other 

appropriate relief. 

{¶ 34} A postconviction proceeding is not an appeal of a criminal conviction, but a 

collateral civil attack on a criminal judgment. State v. Calhoun, 86 Ohio St.3d 279, 281, 

1999-Ohio-102; State v. Bell, 12th Dist. No. CA2001-08-197, 2002-Ohio-1341, ¶ 5. "In 

reviewing an appeal of postconviction relief proceedings, this court applies an abuse of 

discretion standard." State v. Widmer, 12th Dist. No. CA2012-02-008, 2013-Ohio-62, ¶ 28, 

citing State v. Wagers, 12th Dist. No. CA2011-08-007, 2012-Ohio-2258, ¶ 15. "A reviewing 

court should not overrule the trial court's findings on a petition for postconviction relief that is 

supported by competent and credible evidence." Id., citing State v. Gondor, 112 Ohio St.3d 

377, 2006-Ohio-6679, ¶ 58. "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 or 
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unconscionable." Id. 

{¶ 35} Pursuant to R.C. 2953.21(A)(2), a PCR petition shall be filed no later than 180 

days after the case is appealed or after the expiration of the time for filing an appeal. 

However, under R.C. 2953.23(A), a petitioner may file a PCR petition outside the 180-day 

window if "the petitioner establishes one of the two following conditions: 

(1) "[(a)] The petitioner was either unavoidably prevented from 

discovery of the facts upon which the petitioner must rely to 

present the claim for relief * * * and [(b)] the petitioner shows by 

clear and convincing evidence that, but for the constitutional 

error at trial, no reasonable factfinder would have found the 

petitioner guilty of the offense of which the petitioner was 

convicted. 

(2) "The petitioner was convicted of a felony and upon 

consideration of all available evidence related to the inmate's 

case * * *, and the results of the DNA testing establish, by clear 

and convincing evidence, actual innocence of that felony 

offense." 

(Internal quotations omitted). State v. Harris, 8th Dist. No. 89156, 2008-Ohio-934, ¶ 22-24, 

quoting R.C. 2953.23(A). 

{¶ 36} After a review of the record, it is our view that Thornton did not establish either 

of the conditions set forth in R.C. 2953.23(A) that would have given the trial court jurisdiction 

to entertain his petition. 

{¶ 37} As discussed in our review of Thornton's first assignment of error, Thornton 

failed to demonstrate that he was unavoidably prevented from discovering and presenting the 

DNA and photogrammetric evidence at trial and he has failed to establish, by clear and 

convincing evidence, that he would not have been found guilty had this evidence been 

presented at trial. Thus, Thornton has failed to establish that he was unavoidably prevented 

from discovering new evidence pursuant to R.C. 2953.23(A)(1)(a). 

{¶ 38} As such, this court need not address Thornton's additional argument pursuant 

to R.C. 2953.23(A)(1)(b) that, but for the constitutional error of ineffective assistance of trial 
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counsel, no reasonable factfinder would have found Thornton guilty. See State v. Turner, 

10th Dist. No. 06AP-876, 2007-Ohio-1468, ¶ 18 ("Because the two prongs set forth in R.C. 

2953.23 are stated in the conjunctive, and we have found appellant failed to satisfy the first 

prong under R.C. 2953.23(A)(1)(a), we need not address whether appellant presented clear 

and convincing evidence demonstrating that no reasonable fact finder would have found him 

guilty in the absence of the alleged constitutional error, pursuant to the second prong in R.C. 

2953.23(A)(1)(b)"). 

{¶ 39} Nevertheless, even if Thornton had met the requirements of R.C. 

2953.23(A)(1)(a), Thornton fails to establish the constitutional error of ineffective assistance 

of counsel. As discussed in greater detail below, Thornton failed to demonstrate that, had 

the DNA and photogrammetric evidence been introduced at trial, the result of the trial would 

have been different. Though this information could certainly have been beneficial to 

Thornton's case, the DNA evidence does not conclusively eliminate Thornton as the 

perpetrator and the discrepancy between Thornton's height and the height of the man shown 

in the surveillance footage was argued by trial counsel. Thus, even had Thornton satisfied 

the requirements of R.C. 2953.23(A)(1)(a) by demonstrating that he was unavoidably 

prevented from discovering the DNA and photogrammetric evidence within 180 days, 

Thornton could not satisfy the requirements of R.C. 2953.23(A)(1)(b) as he is unable to show 

that, but for the ineffectiveness of his trial counsel in not presenting the DNA and 

photogrammetric evidence, he would not have been found guilty. 

{¶ 40} Additionally, Thornton has failed to demonstrate that the DNA testing 

establishes, by clear and convincing evidence, his actual innocence pursuant to R.C. 

2953.23(A)(2). "Actual innocence" under R.C. 2953.21(A)(1)(b) "means that, had the results 

of the DNA testing * * * been presented at trial, and had those results been analyzed in the 

context of and upon consideration of all available admissible evidence related to the inmate's 
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case * * * no reasonable factfinder would have found the petitioner guilty of the offense of 

which the petitioner was convicted * * *." 

{¶ 41} Here, Thornton argues that, because his DNA was not found on the zip ties, he 

could not be the perpetrator of the aggravated robbery and kidnapping on September 7, 2011 

and, therefore, the DNA evidence proves his "actual innocence." However, though the DNA 

test results raise a doubt that Thornton was the perpetrator, "'doubt' does not rise to the level 

of 'actual innocence' under R.C. 2953.21(A)(1)(b); i.e., that no reasonable factfinder would 

have found [Thornton] guilty." Harris, 2008-Ohio-934 at ¶ 27. 

{¶ 42} The Y-STR DNA testing performed on the zip ties does not unequivocally show 

that Thornton was not the perpetrator of the aggravated robbery and kidnapping on 

September 7, 2011. Rather, the DNA testing provides only that another man's DNA was 

found on the zip ties. Evidence at the trial revealed that the perpetrator in this case wore 

gloves during the commission of the aggravated robbery and kidnapping. Although Thornton 

argues that (1) the perpetrator did not likely wear gloves while purchasing the zip ties or 

placing them in his pocket and (2) that DNA could have transferred from the perpetrator to 

the zip ties if, while wearing gloves, the perpetrator "touched his sweaty face" or "put his 

finger in his ear," these arguments do not establish Thornton's actual innocence or that the 

jury would not have found him guilty had this information been admitted at trial. The DNA on 

the zip ties could just as easily have come from a factory-worker who manufactured the zip 

ties or a store clerk who stacked the zip ties on the shelf or sold the zip ties. As stated by the 

trial court, these "competing possibilities indicate a weight of the evidence issue that the jury 

could have pondered had this evidence been presented to it, but it does not establish 

[Thornton's] actual innocence of the crimes by clear and convincing evidence." 

{¶ 43} In addition, the other available and admissible evidence presented at trial in 

Thornton's case, in combination with the DNA evidence, does not prove Thornton's actual 
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innocence. At trial, (1) a friend of Thornton's testified that Thornton confessed to the crime, 

(2) Thornton commented to his mother that the police thought he had robbed the Cash 

Express before any mention of the aggravated robbery had occurred, (3) Fahey selected 

Thornton out of a photo lineup after seeing a previous photo lineup that did not include 

Thornton's photograph, (4) Fahey identified clothing taken from Thornton's apartment as the 

clothing worn by the perpetrator during the commission of the crime, and, finally, (5) three 

Milford police officers individually identified Thornton as the perpetrator based upon their 

viewing of the surveillance video. 

{¶ 44} Thornton argues that the results of the photogrammetric analysis should have 

been considered in the trial court's determination of whether a reasonable factfinder would 

have found him guilty of aggravated robbery and kidnapping in light of the DNA results, 

"being analyzed in the context and upon consideration of all admissible evidence." However, 

we find no error in the trial court's refusal to consider the results of the photogrammetric 

analysis as Thornton (1) failed to admit such evidence at trial in 2008 and (2) failed to 

demonstrate that he was "unavoidably prevented" from presenting such evidence as 

contemplated by R.C. 2953.23(A)(1). 

{¶ 45} Thus, based upon our review of the DNA evidence in context of the other 

available admissible evidence, we find that the trial court's ruling that Thornton failed to 

satisfy the requirements of R.C. 2953.23(A)(2) was not an abuse of discretion. 

{¶ 46} We find that the trial court did not err in denying Thornton's PCR petition, as he 

did not satisfy the requirements of R.C. 2953.23(A)(1) or (2). Accordingly, Thornton's second 

and final assignment of error is overruled. 

{¶ 47} Judgment affirmed. 

S. POWELL and M. POWELL, JJ., concur.