[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

v. Scott, Slip Opinion No. 2022-Ohio-4277.]

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2022-OHIO-4277

THE STATE OF OHIO, APPELLEE, v. SCOTT, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State v. Scott, Slip Opinion No. 2022-Ohio-4277.]

Criminal law—Postconviction DNA testing—R.C. 2953.74(C)(4) and (5)—R.C. 

2953.74(D)—The possibility that an offender’s postconviction DNA test 

results could match the profile of a person other than the offender in the 

Combined DNA Index System database is not “available admissible 

evidence” that a trial court must consider under R.C. 2953.74(D) when 

deciding whether to grant an offender’s application for postconviction DNA 

testing—The trial court and the court of appeals abused their discretion in 

unreasonably concluding that postconviction DNA test results would not be 

outcome determinative, because a presumed exclusion result when viewed 

in the context of the circumstantial evidence of the case presents a strong 

probability that a reasonable factfinder would not have found the offender

guilty of the offense for which he was convicted—Judgment reversed and 
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cause remanded to the trial court to approve application for postconviction 

DNA testing.

(No. 2020-1583—Submitted December 8, 2021—Decided December 2, 2022.)

APPEAL from the Court of Appeals for Butler County, No. CA2020-01-007, 

2020-Ohio-5302.

__________________

O’CONNOR, C.J.

{¶ 1} Appellant, Guy Billy Lee Scott, is serving a prison term of 15 years

to life for his 1992 convictions for the assault, rape, and murder of Lesa Buckley. 

Scott petitioned the Butler County Court of Common Pleas for postconviction DNA 

testing, which appellee, the state of Ohio, opposed. The trial court denied the 

petition, and the Twelfth District Court of Appeals affirmed the trial court’s 

judgment. In this appeal, we determine whether the postconviction DNA testing 

that Scott seeks is outcome determinative as required by R.C. 2953.74(C)(4) and 

(5). Because we find that it is, we reverse the court of appeals’ judgment and 

remand this cause to the trial court for further proceedings.

Background

{¶ 2} Following a jury trial in 1992, Scott was convicted of the assault, rape, 

and murder of Buckley. Buckley’s body was found on July 8, 1990, in Cedar Lake 

near New Paris, Ohio. The lake was in a disused gravel quarry where Buckley and

Scott, along with 60 to 120 other people, attended a party the previous night.

{¶ 3} A summary of the testimony from Scott’s trial may be found in the 

Twelfth District’s decision affirming his convictions. State v. Scott, 12th Dist. 

Butler No. CA92-03-052, 1994 WL 394976 (Aug. 1, 1994). This court declined 

review of Scott’s direct appeal. State v. Scott, 71 Ohio St.3d 1428, 642 N.E.2d 635 

(1994).

{¶ 4} In 2019, Scott petitioned the trial court under R.C. 2953.73 for 

postconviction DNA testing. The trial court denied the application, concluding that 
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3

it did not satisfy the “outcome determinative” standard set forth in R.C. 2953.74(D). 

The Twelfth District affirmed the trial court’s judgment. 2020-Ohio-5302, ¶ 52, 

59.

{¶ 5} We accepted jurisdiction over Scott’s discretionary appeal and his

single proposition of law in which he asserts that a trial court should consider the 

possibility that a DNA profile developed from crime-scene evidence could match a 

profile contained in the Combined DNA Index System (“CODIS”) database when 

considering whether to grant an application for postconviction DNA testing. See 

161 Ohio St.3d 1474, 2021-Ohio-717, 164 N.E.3d 482.

Analysis

{¶ 6} Ohio law provides eligible offenders the opportunity to apply for 

postconviction DNA testing as described in R.C. 2953.71 through 2953.81. See 

R.C. 2953.73. The circumstances under which a trial court may accept an

application for postconviction DNA testing are described in R.C. 2953.74. When

Scott was tried for the assault, rape, and murder of Buckley in the early 1990s, DNA 

testing was not conducted on the biological samples obtained from Buckley.

Consequently, Scott’s application for postconviction DNA testing falls under R.C. 

2953.74(B)(1), which provides that the court may accept the application only if

[t]he offender did not have a DNA test taken at the trial stage 

in the case in which the offender was convicted of the offense for 

which the offender is an eligible offender and is requesting the DNA 

testing regarding the same biological evidence that the offender 

seeks to have tested, the offender shows that DNA exclusion when 

analyzed in the context of and upon consideration of all available 

admissible evidence related to the subject offender’s case as

described in division (D) of [R.C. 2953.74] would have been 

outcome determinative at that trial stage in that case, and, at the time 
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of the trial stage in that case, DNA testing was * * * not yet 

available.

R.C. 2953.74(C) describes additional conditions the offender must satisfy before

the trial court may accept the offender’s application for postconviction DNA 

testing. Relevant here is the requirement that an exclusion result would be outcome 

determinative regarding the offender. See R.C. 2953.74(C)(4) and (5).

{¶ 7} An “exclusion result” is a DNA test result “that scientifically 

precludes or forecloses the subject offender as a contributor of biological material 

recovered from the crime scene or victim in question.” R.C. 2953.71(G). 

“Outcome determinative” means that “there is a strong probability that no 

reasonable factfinder would have found the offender guilty of [the] offense” for 

which he or she was convicted if the DNA results had been presented and found 

relevant and admissible at trial and “had those results been analyzed in the context 

of and upon consideration of all available admissible evidence related to the 

offender’s case.” R.C. 2953.71(L). The statute that sets forth the grounds for 

accepting an application for postconviction DNA testing makes clear that “the 

court, in determining whether the ‘outcome determinative’ criterion described in 

divisions (B)(1) and (2) of [R.C. 2953.74] has been satisfied, shall consider all 

available admissible evidence related to the subject offender’s case.” R.C. 

2953.74(D).

Whether the trial court should consider the possibility that a comparison of 

postconviction DNA test results with CODIS will identify a person other than 

the offender as “available admissible evidence” when considering an 

application for postconviction DNA testing

{¶ 8} Scott argues that when the trial court was considering whether 

postconviction DNA testing in his case was “outcome determinative,” it should 

have considered the possibility that the test results could match another person’s
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5

profile in CODIS. R.C. 2953.74(E) provides that if the court accepts an application 

for DNA testing,

the eligible offender may request the court to order, or the court on 

its own initiative may order, the bureau of criminal identification 

and investigation to compare the results of DNA testing of 

biological material from an unidentified person other than the 

offender that was obtained from the crime scene or from a victim of 

the offense for which the offender has been approved for DNA 

testing to the combined DNA index system maintained by the 

federal bureau of investigation.

If there is a match in the database, “[t]he offender or the state may use [that] 

information for any lawful purpose.” Id.

{¶ 9} R.C. 2953.74(E) clearly providesthat a CODIS search may be ordered 

if a trial court accepts an application for DNA testing. But we are not persuaded 

that the court must consider the possibility of postconviction DNA test results 

returning a CODIS match that identifies someone other than the petitioner as

“available admissible evidence” when determining whether to accept an application 

for testing. To put it quite simply, a petitioner first needs a DNA test and its result 

before a CODIS search can be performed.

1

 And the court must first accept an 

1. That a court may order a comparison of a DNA test result with CODIS as described in R.C. 

2953.74(E) makes good investigative sense. If an exclusion result is obtained, the state would surely 

be motivated to identify possible alternative suspects in order to protect the public. See Brief of 

Amicus Curiae, Ohio Prosecuting Attorneys Association, in Support of Plaintiff-Appellee the State 

of Ohio at 5, Supreme Court case No. 2020-1583 (July 21, 2021) (“If the crime scene DNA does 

not match the convicted defendant’s DNA, then a CODIS search would absolutely be appropriate”). 

In fact, we know that “in some cases, merely being excluded from a crime scene is insufficient to 

convince a court that the requested postconviction relief is warranted,” State v. Ayers, 185 Ohio 

App.3d 168, 2009-Ohio-6096, 923 N.E.2d 654, ¶ 37 (8th Dist.), and that identifying the actual 

perpetrators may be the only avenue for relief, id. at ¶ 38-39 (summarizing the eventual exonerations 

of the offenders). A CODIS search using a DNA test result is a valuable investigative tool, and 
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application for DNA testing before ordering a CODIS search. Thus, it is impossible 

for a CODIS match to be available evidence when the trial court is considering a 

petitioner’s application for testing.

{¶ 10} Additionally, a court’s decision to accept an application for 

postconviction DNA testing or to order a comparison of DNA test results with 

CODIS is within the court’s discretion. See R.C. 2953.74(B) (the court “may accept 

the application only if” one of the enumerated conditions applies); R.C. 2953.74(C) 

(the court “may accept the application only if” all of the enumerated conditions 

apply); R.C. 2953.74(E) (the court “may order” a CODIS search using the DNA 

test results). That discretion is to be exercised on a case-by-case basis, based on 

the unique facts of each case. See State v. Ayers, 185 Ohio App.3d 168, 2009-Ohio6096, 923 N.E.2d 654, ¶ 43 (8th Dist.). It would be illogical to presume that for 

every case a CODIS match would be necessary or relevant in every application for 

postconviction DNA testing. Therefore, we reject any invitation to create a brightline rule that every offender who submits an application for postconviction DNA 

testing is entitled to a presumption that his or her test result will return a CODIS 

match identifying someone other than the petitioner.

{¶ 11} Nonetheless, the statutory scheme requires the trial court reviewing 

an application for postconviction DNA testing to presume that an “exclusion 

result”—that is, a result that “scientifically precludes or forecloses” the offender as 

a contributor, R.C. 2953.71(G)—will be obtained by the offender. R.C. 

2953.74(C)(4). With that presumed result in mind, the trial court must determine 

whether such a result would be outcome determinative for the offender. R.C. 

2953.74(C)(5). To determine whether postconviction DNA testing would be 

outcome determinative, the presumed exclusion result must be analyzed in the 

context of and upon consideration of “all available admissible evidence related to 

nothing about our conclusion regarding the presumption of a possible CODIS match should be read 

as limiting the employment of this important tool.
January Term, 2022

7

the subject offender’s case.” R.C. 2953.74(D). Given that the trial court must 

presume that postconviction DNA testing may exclude the offender as a 

contributor, the existence of evidence that also supports a defense theory involving 

an alternative suspect who could be the contributor is highly relevant to the 

outcome-determinative standard that a court must consider when determining 

whether to grant the application for testing. See, e.g., State v. Gavin, 2022-Ohio3027, 195 N.E.3d 226, ¶ 42 (4th Dist.) (“After considering all available admissible 

evidence related to [the offender’s] case, we agree with [the offender’s] argument 

that if his DNA were to be absent from the plastic bag at issue, and if the DNA of 

either [of the alternative suspects] is present on the bag, there is a strong probability 

that no reasonable factfinder would have found [the offender] guilty of the offenses 

at issue and thus, such results would be outcome determinative”); State v. Reynolds, 

186 Ohio App.3d 1, 2009-Ohio-5532, 926 N.E.2d 315, ¶ 10 (2d Dist.) (“Because it 

is undisputed that no physical evidence was found at the scene which linked [the

offender] to the crimes, DNA test results implicating a third party as the source of 

the biological material would be outcome determinative, and thus, we hold that the 

trial court abused its discretion when it rejected [the offender’s] application”).

Here, the record is devoid of any physical evidence linking Scott to the crimes, 

Scott’s defense theory involved one or more alternative suspects, and the identity 

of the contributor to the DNA samples taken from Buckley is unknown. 

Accordingly, we review the lower courts’ application of the outcome-determinative 

standard to the facts of this case.

Whether a postconviction DNA test result excluding Scott would be outcome 

determinative

{¶ 12} We review a lower court’s decision whether postconviction DNA 

testing would be outcome determinative for an abuse of discretion. See State v.

Buehler, 113 Ohio St.3d 114, 2007-Ohio-1246, 863 N.E.2d 124, paragraph one of 
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the syllabus; State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623, 885 N.E2d 905, 

¶ 45.

{¶ 13} Here, the Twelfth District concluded that the trial court did not act 

unreasonably, arbitrarily, or unconscionably in finding that a DNA exclusion result 

would not be outcome determinative:

This is not a case where the margin of evidence was so 

narrow that a DNA exclusion result would lead to a strong 

probability that no reasonable factfinder would have found Scott 

guilty. This is also not a case where Scott’s conviction was premised 

on one or a few pieces of suspect evidence, or a single eyewitness’s 

questionable identification. The jurors considered the testimony of 

dozens of witnesses and numerous pieces of circumstantial evidence 

that, when fit together, led them to the conclusion, beyond a 

reasonable doubt, that Scott assaulted, raped, and murdered 

Buckley.

2020-Ohio-5302 at ¶ 52.

{¶ 14} Taking the court of appeals’ description of the evidence at face 

value, it is easy to assume that the jury’s verdict was reasonable. But the relevant 

question is not whether the available admissible evidence was enough to convict 

Scott; rather, the relevant question is whether there is a strong probability that no 

reasonable factfinder would have found Scott guilty of the offenses of assault, rape, 

and murder if a DNA test result excluding Scott had been presented at trial and 

analyzed in the context of and upon consideration of all available admissible 

evidence. See R.C. 2953.71(L). Here, the “margin of evidence,” as the court of 

appeals describes it, significantly narrows when analyzed beside a presumed

exclusion result. In other words, an exclusion result would create sufficient doubt 
January Term, 2022

9

about key pieces of evidence in this case, demonstrating a strong probability that 

no reasonable juror would have found Scott guilty beyond a reasonable doubt.

{¶ 15} As the Twelfth District explained, “[t]he evidence underpinning 

Scott’s conviction was based on eyewitness testimony and circumstantial 

evidence.” 2020-Ohio-5302 at ¶ 47. The court of appeals noted that “Scott’s 

conviction was not premised on the physical evidence recovered from Buckley’s 

autopsy that Scott now seeks to test.” Id. at ¶ 51. Both the trial court and the court 

of appeals gave significant weight to the eyewitness testimony of Tony Young, who 

testified at trial that he had observed Scott and Buckley engaging in a sexual act 

near the edge of the lake before Buckley’s death. But the court of appeals also 

dismissed the two interviews that Young has since given in which he recanted his 

testimony—a 2009 interview with the Ohio Innocence Project and a 2015 interview 

with the Preble County Sheriff’s Office. Despite noting that Young explained in 

those interviews that he had purposefully falsely identified Scott as the offender 

during his trial testimony, the Twelfth District concluded that Young’s trial 

testimony “bore indicia of reliability” while “his recantations decades later lack[ed]

credibility.” 2020-Ohio-5302 at ¶ 27. But in those interviews, Young disclaimed 

ever having been at the party. This evidence, in addition to an exclusion result, 

would eliminate any remaining credibility of Young’s trial testimony.

{¶ 16} An exclusion result would also significantly reduce the weight of 

other evidence that might have corroborated Young’s false eyewitness testimony. 

For example, there was trial testimony that Scott and Buckley went missing from 

the party around the same time and that Scott returned to the party wet. But there 

was also testimony that approximately 60 to 120 people attended the party at the

quarry. And Scott told investigators that he was wet because he had been pushed 

into the lake. An exclusion result, analyzed in the context of this evidence, would 

highlight the highly circumstantial nature of this testimonial evidence.
SUPREME COURT OF OHIO

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{¶ 17} The court of appeals also dismissed the weight of the evidence 

offered in support of Scott’s defense theory that Buckley was killed by a member 

of the Johnson family. As the court of appeals noted, Ronnie Johnson was 

Buckley’s abusive ex-boyfriend, and a witness testified that he saw Ronnie’s car 

driving away from the party. Id. at ¶ 43, 46. The witness said he saw Ronnie’s car 

leaving the lake just after Buckley’s estimated time of death. As summarized by 

Scott in his memorandum in support of his application for postconviction DNA 

testing, at least eight people, including Buckley’s parents, told investigators that 

either Ronnie or Lisa Johnson (Ronnie’s cousin and Buckley’s former friend) were 

likely suspects, given their past abuse of Buckley—Lisa had run over Buckley’s 

foot after a public altercation in a parking lot—and given how fearful Buckley was 

of the Johnson family. According to Scott, three other people told investigators

that Buckley also feared Ronnie’s brothers, who had previously threatened her. 

None of the Johnsons were interviewed by investigators. At trial, Ronnie and Lisa 

each testified that they were at Ronnie’s home on the evening of the murder.

{¶ 18} The court of appeals found that “there was no credible evidence of 

any involvement by the Johnsons in Buckley’s death.” 2020-Ohio-5302 at ¶ 46. 

But a DNA test result that excludes Scott, coupled with the information about the 

Johnsons discussed above, including the eyewitness testimony of Ronnie’s car 

leaving the scene, bolsters the credibility of Scott’s defense theory.

{¶ 19} The court of appeals also considered testimony from witnesses who 

heard Scott make inculpatory statements about Buckley’s death. Id. at ¶ 28, 32. 

And the court of appeals found that Scott’s ability to immediately identify Buckley 

upon finding her bloated and beaten body while swimming at the quarry the next 

day and his “apparent evidence destruction” (he tossed a red lighter like the one 

Buckley had owned and a red plastic cup like the one he had been drinking from at 

the party into the lake) after finding Buckley’s body was circumstantial and 

probative evidence of Scott’s involvement. Id. at ¶ 39-42.
January Term, 2022

11

{¶ 20} There is no question that Scott’s behavior could be viewed as some 

evidence of his guilt, but we cannot conclude that it is sufficient on its own, 

particularly in light of a presumed exclusion result. The context of this evidence in 

the presence of a postconviction DNA test result that excludes Scott would cast 

doubt on the truth and overall impact of Scott’s statements and actions.

{¶ 21} As the Twelfth District noted, circumstantial and direct evidence 

have the same probative value, and a sufficient “margin of evidence” may counter 

a conclusion that an exclusion result would be outcome determinative. 2020-Ohio5302 at ¶ 47. But a presumed exclusion result viewed in the context of the 

circumstantial evidence described herein reduces the probative value of that 

“margin of evidence.” Therefore, we conclude that the trial court and the court of 

appeals abused their discretion by unreasonably concluding that there is not a strong 

probability that a reasonable factfinder would have found Scott guilty if a DNA test

result excluding Scott had been presented at trial.

{¶ 22} We do not reach this decision lightly. The horrible events leading to 

Buckley’s death are not ones that her family and friends should have to relive so 

many years later. But the specter of a wrongful conviction in light of available but 

untested DNA evidence is something the legislature has sought to prevent by 

making postconviction testing available. See R.C. 2953.71 through 2953.84. And 

assurance that the public is protected because the actual offender is behind bars 

depends on the confidence of the conviction. To be clear, our decision is limited to 

Scott’s application for postconviction DNA testing and should not be read as any 

commentary on whether Scott may be entitled to other postconviction relief aimed 

at overturning his conviction. In Ayers, 185 Ohio App.3d 168, 2009-Ohio-6096, 

923 N.E.2d 654, at ¶ 41, the Eighth District explained the risk that a defendant takes 

in seeking DNA testing:
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[W]orth noting is the fact that additional [DNA] testing may not 

yield an inmate’s expected results. In other words, testing can cut both ways 

for an applicant. Testing may, indeed, lead to the exoneration of one 

wrongfully convicted, but can also further implicate the inmate or simply 

have a neutral effect.

But the Eighth District also recognized:

The United States Supreme Court has stated that the 

“ultimate objective” of our system of criminal law is that “the guilty 

be convicted and the innocent go free.” Herring v. New York, 422 

U.S. 853, 862, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). If DNA 

testing has the proven ability to “exonerate[] wrongly convicted 

people,” [District Attorney’s Office for the Third Judicial District v. 

Osborne, 557 U.S. 52, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009),] we 

can perceive no viable argument that matters of judicial economy 

should supersede the law’s never-ending quest to ensure that no 

innocent person be convicted.

(First brackets added in Ayers.) Ayers at ¶ 24.

{¶ 23} Under the circumstances of this case, we find that the trial court and 

the court of appeals abused their discretion by denying Scott’s application for 

postconviction DNA testing.

Conclusion

{¶ 24} For the foregoing reasons, we reverse the judgment of the Twelfth

District Court of Appeals and remand the cause to the trial court with instructions 

that it accept Scott’s application for postconviction DNA testing.

Judgment reversed
January Term, 2022

13

and cause remanded to the trial court.

DONNELLY, STEWART, and BRUNNER, JJ., concur.

FISCHER, J., dissents, with an opinion.

DEWINE, J., dissents, with an opinion joined by KENNEDY and FISCHER, JJ.

_________________

FISCHER, J., dissenting.

{¶ 25} This case should be dismissed as improvidently allowed. It is 

questionable whether the proposition of law that this court resolves today was 

preserved in the lower courts. And as recognized by the second dissenting opinion, 

the second issue that the majority opinion resolves—whether a DNA exclusion 

result would be outcome determinative based on the trial evidence—was not a 

proposition of law that this court accepted for review. Because the court chooses

to resolve that issue, I agree with the second dissenting opinion and join it in full.

{¶ 26} I also take this opportunity to encourage the General Assembly to 

review the statutory scheme at issue in this case and to make clear the requirements 

for approving an offender’s application for postconviction DNA testing. After 

reviewing the statutory scheme, our precedent, and the decisions of the lower 

courts, it has become apparent that all participants in this litigation process have 

had difficulty interpreting the requirements set forth in R.C. 2953.71 through 

2953.84. See State v. Noling, 153 Ohio St.3d 108, 2018-Ohio-795, 101 N.E.3d 435, 

¶ 67 (this court read the statutory scheme in pari materia to understand the meaning 

of the phrase “results of the testing” as used in R.C. 2953.81(C)); State v. Buehler, 

113 Ohio St.3d 114, 2007-Ohio-1246, 863 N.E.2d 124, paragraph one of the 

syllabus (“A careful, commonsense reading of R.C. 2953.74(C) in pari materia with 

R.C. 2953.72 and 2953.73 and the remainder of R.C. 2953.74 illustrates the intent 

of the General Assembly to authorize the trial court to exercise its discretion in how 

to proceed when ruling on an eligible inmate’s application for DNA testing); id. at 

¶ 39 (Harsha, J., concurring in judgment only) (the language of the statutory scheme 
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14

may seem plain when read in isolation, but it becomes ambiguous when read as a 

whole); id. at ¶ 42-45 (Lanzinger, J., dissenting) (disagreeing with the majority 

opinion’s statutory reading on the ground that it conflicts with other mandatory 

language in the statute and creates and confers upon the trial court judicial 

discretion that does not exist in the statute). The statutory scheme may not be 

legally ambiguous, but there is always room for improvement.

_________________

DEWINE, J., dissenting.

{¶ 27} We accepted the following proposition of law for review in this case:

In determining whether DNA testing would be outcome 

determinative, a trial court should consider the possibility that a 

DNA profile developed from crime scene evidence could match a 

profile contained within the [Combined DNA Index System 

(“CODIS”)] database.

See 161 Ohio St.3d 1474, 2021-Ohio-717, 164 N.E.3d 482. The majority correctly 

rejects that proposition. That should end the case and dictate an affirmance of the 

Twelfth District Court of Appeals’ judgment upholding the denial of Guy Billy Lee 

Scott’s application for postconviction DNA testing.

{¶ 28} But, remarkably, that’s not what the majority does. Instead, the 

majority goes beyond the case that was argued and briefed to us and—based on its 

theory of the trial evidence—grants the application for DNA testing. Incredibly, it 

does so even though the trial evidence is not part of the record before us in this 

appeal. I respectfully dissent.
January Term, 2022

15

The majority correctly rejects Scott’s argument in support of the proposition 

of law that was accepted for review

{¶ 29} For a court to approve an application for postconviction DNA 

testing, the offender must show “that DNA exclusion when analyzed in the context 

of and upon consideration of all available admissible evidence related to the subject 

offender’s case * * * would have been outcome determinative at that trial stage in 

that case.” (Emphasis added.) R.C. 2953.74(B)(1); see also R.C. 2953.74(D) 

(directing the trial court to consider “all available admissible evidence related to 

the subject offender’s case” when determining whether the outcome determinative 

criterion has been satisfied). A search of the CODIS database may or may not yield 

a match with another person’s DNA profile. The mere possibility of a match does 

not constitute “available admissible evidence.” It is hypothetical.

{¶ 30} By its terms, R.C. 2953.74(B)(1) requires the court to presume that 

DNA testing would lead to an exclusion result. R.C. 2953.71(G) defines an 

“exclusion result” as a DNA test result “that scientifically precludes or forecloses 

the subject offender as a contributor of biological material recovered from the crime 

scene or victim in question.” If the applicant is excluded as a contributor to the 

DNA profile, the corollary is that the DNA belongs to someone else. Thus, by 

requiring the court to consider the effect of a test result excluding the applicant as 

a contributor to the DNA sample, the statute likewise requires the court to consider 

the effect of a test result that reveals a DNA profile belonging to someone other 

than the applicant.

{¶ 31} Scott asks this court to take an additional leap: he asks us to presume 

that the DNA profile identified through postconviction testing would conclusively 

match a profile contained in the CODIS database. The statute does not call for such 

a presumption. For those reasons, I agree with the majority’s rejection of the 

proposition of law presented.
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The majority errs by going beyond the issue in front of us

{¶ 32} The majority, though, does not limit itself to answering the 

proposition of law presented. It also concludes that the lower courts abused their 

discretion in determining that a DNA exclusion result would not be outcome 

determinative in this case. It therefore reverses the court of appeals’ judgment and 

remands the case with instructions for the trial court to approve Scott’s application 

for DNA testing. I am unable to join the majority’s judgment in that regard for two 

reasons.

{¶ 33} First, that issue was not raised by Scott in this appeal or briefed by 

the parties. “It has long been the policy of this court not to address issues not raised 

by the parties.” Sizemore v. Smith, 6 Ohio St.3d 330, 333, 453 N.E.2d 632 (1983), 

fn. 2, citing F. Ents., Inc. v. Kentucky Fried Chicken Corp., 47 Ohio St.2d 154, 163, 

351 N.E.2d 121 (1976). “The premise of our adversarial system is that appellate 

courts do not sit as self-directed boards of legal inquiry and research, but essentially 

as arbiters of legal questions presented and argued by the parties before them.” 

Natl. Aeronautics and Space Admin. v. Nelson, 562 U.S. 134, 148, 131 S.Ct. 746, 

178 L.Ed.2d 667 (2011), fn. 10, quoting Carducci v. Regan, 714 F.2d 171, 177 

(D.C.Cir.1983). When we decide legal issues without the benefit of full briefing, 

we “run the risk of an improvident or ill-advised opinion, given the court’s 

dependence on the adversarial process for sharpening the issues for decision.” 

(Cleaned up.) Carbino v. West, 168 F.3d 32, 35 (Fed.Cir.1999).

{¶ 34} Indeed, Scott requested only that this court “remand the case with 

instructions to consider [his] eligibility for postconviction DNA testing under the 

proper standard.” And the majority’s decision in this case to reach an issue not 

raised or argued by Scott in his appeal to this court is especially unfair to the state, 

which has now had judgment entered against it on an issue that it did not expect to 

be considered and which it had no opportunity to brief or argue. See id.
January Term, 2022

17

{¶ 35} Even worse, the majority makes an evidentiary determination 

without all the evidence. The trial transcripts in this case are not part of our record. 

Not only is it necessary to review the trial transcripts before deciding whether a 

DNA exclusion result would be outcome determinative, it is also what is required 

by statute.

{¶ 36} R.C. 2953.73(D) says that when reviewing an application for 

postconviction DNA testing, the court “shall consider the application, the 

supporting affidavits, and the documentary evidence and, in addition to those 

materials, shall consider all the files and records pertaining to the proceedings 

against the applicant, including, but not limited to, the indictment, the court’s 

journal entries, the journalized records of the clerk of the court, and the court 

reporter’s transcript and all responses to the application filed under division (C) of 

this section by a prosecuting attorney or the attorney general.” (Emphasis added.) 

We simply don’t have the portions of the record necessary to review the lower 

courts’ determinations.

{¶ 37} As the appellant, it is Scott’s burden to ensure that transcripts are 

part of the record on appeal. See App.R. 9(B); see also Knapp v. Edwards 

Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980) (“When portions of 

the transcript necessary for resolution of assigned errors are omitted from the 

record, the reviewing court has nothing to pass upon and thus, as to those assigned 

errors, the court has no choice but to presume the validity of the lower court’s 

proceedings, and affirm”). Indeed, this issue was brought to counsel’s attention at 

oral argument, with one justice asking whether review of the transcripts would be 

necessary to decide this case. Scott’s attorney responded that it was unnecessary 

for this court to review the transcripts to resolve the proposition of law presented. 

He reiterated that Scott was not seeking an order from this court directing that the 

application for postconviction DNA testing be granted; rather, he was asking only 
SUPREME COURT OF OHIO

18

for this court to remand the case to the lower courts so they could reconsider their 

conclusions under his proposed standard.

{¶ 38} The majority has now rejected Scott’s proposed standard. No other 

issue is properly in front of us. The majority goes beyond its limited role and 

reaches an issue that is not before this court, and it makes an evidentiary 

determination without the benefit of having the trial evidence for review. I 

therefore dissent from its judgment reversing the court of appeals’ judgment below.

KENNEDY and FISCHER, JJ., concur in the foregoing opinion.

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Martin P. Votel, Preble County Prosecuting Attorney, and Philip D. 

Bogdanoff, Special Assistant Prosecuting Attorney, for appellee.

Ohio Innocence Project, Donald R. Caster, Jennifer Paschen Bergeron, and 

Samantha M. Kovacevic, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kristen 

L. Sobieski, Assistant Prosecuting Attorney, urging affirmance for amicus curiae 

Ohio Prosecuting Attorneys Association.

Pillsbury Winthrop Shaw Pittman, L.L.P, Jeetander T. Dulani, Emily 

Huang, and Chloe J. Stepney; Timothy Young, Ohio Public Defender and Joanna 

Sanchez, Assistant Public Defender, urging reversal for amicus curiae the 

Innocence Network.

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